Dobson v Pricewaterhousecoopers LLP (Rev 1)

A case-management order must be construed objectively from its written terms. Where a written order follows a hearing, it governs in preference to recollections of oral observations, and affidavit evidence of what was said at the hearing should not be used to alter or interpret it.

An Employment Tribunal may vary an earlier order only where this is necessary in the interests of justice. The power is exceptional and is not an appeal from the first judge’s decision. A later judge’s disagreement with the earlier order, inconvenience, delay, or uncertainty alone will not ordinarily justify revocation.

The claimant brought protected-disclosure claims against his employer. He contended that a case-management order made in April 2016 required standard disclosure. A later Employment Judge held that the order did not impose that obligation and, alternatively, would revoke it before a pending strike-out and deposit-order hearing.

The claimant appealed against that ruling. The central questions were whether the April 2016 order, properly construed, required standard disclosure and, if it did, whether a later Employment Judge could set it aside under the principles in Serco v Wells [2016] ICR 768.

1. Appeal dismissed. The written order made after the April 2016 hearing, rather than anything said orally at that hearing, determined the parties’ obligations. It was not appropriate to use affidavit evidence of the judge’s oral remarks to challenge or assist interpretation of the written order.

2. The construction of a court or tribunal order is a matter of law with one correct answer. The April order was confused and ambiguous, but it did not order general or standard disclosure. Its operative provisions required requests for identified documents and responses to them. They did not require either party to disclose all relevant documents, state a deadline for such disclosure, or prescribe the form of disclosure. The references to standard civil procedure disclosure and continuing disclosure were template material which did not create a freestanding disclosure order.

3. Subsequent letters from the Tribunal could not determine the meaning of the formal order. They were inconsistent and did not purport to clarify the order formally. The later case-management order, which deferred further disclosure until determination of the pending preliminary issues, supported the construction that no general disclosure order had been made.

4. Although unnecessary to the result, the EAT held that the alternative revocation would have been erroneous. Under Rule 29 of the ET Rules and Serco v Wells [2016] ICR 768, variation of an earlier order is permitted only where necessary in the interests of justice, such as after a material change of circumstances, a material omission or misstatement, or another substantial reason. The jurisdiction is rare and exceptional. It is not available merely because a second Employment Judge considers the first judge mistaken, or because compliance would be inconvenient, expensive, delayed, or uncertain.

• Employment Appeal Tribunal: dismissed the claimant’s appeal in [2018] UKEAT 0022_18_2003.
• Employment Tribunal: Employment Judge Crosfill held that the earlier case-management order did not require standard disclosure and stated, alternatively, that any such order would be revoked.