E Aird & Ors v Asda Stores Ltd & Ors

In large multi-claimant litigation, the overriding objective does not require absolute equality between separately represented groups. Differences flowing from a claimant’s choice of representative may properly be considered. The tribunal must balance fairness with proportionality, expense and the effective conduct of the litigation.

An appellate tribunal will interfere with a case-management decision only for legal error, failure to consider relevant matters, consideration of irrelevant matters, or perversity. A case manager may conclude that attendance at private hearings and timely hearing bundles adequately protect stayed claimants’ interests, and that supplying all inter-party communications would be disproportionate.

This was an appeal from a case-management order in large-scale equal-pay proceedings against Asda. The active representative claims formed the Brierley Multiple and were conducted by Leigh Day. Later claims in the Calder Multiple, including claims represented by Keller Postman, were stayed pending resolution of the Brierley claims.

The Employment Judge permitted Keller Postman to attend private preliminary hearings and receive their bundles, but refused an order requiring disclosure of all correspondence and documents exchanged in the Brierley litigation. Keller Postman alleged an error concerning equality of arms, failure to consider relevant matters, and perversity.

1. The appeal was dismissed. The order was a paradigm case-management decision. The EAT could interfere only if the Employment Judge had erred in law, omitted a relevant consideration, considered an irrelevant matter, or reached a perverse result. Case-management reasons need only be proportionate and should not be read hyper-critically or over-analytically.

2. In multi-claimant litigation, the requirement to put parties on an equal footing is not absolute. It must be balanced against the other aspects of the overriding objective, including saving expense and dealing with proceedings proportionately. The Employment Judge was entitled to focus principally on equality between the parties to the active Brierley litigation, rather than require identical access to information for two groups of stayed Calder claimants.

3. The judge was also entitled to take account of inequality resulting from different representation. Absolute equality between all claimants is not achievable in group litigation. The judge did not have to investigate what individual claimants knew, or why they chose their representatives. The EAT accepted that the principles discussed in Lungowe v Vedanta Resources PLC [2020] EWHC 749 (TCC) applied by analogy.

4. The Employment Judge had understood that Keller Postman sought all relevant communications, not merely earlier access to hearing bundles. Given his detailed knowledge of the proceedings, he was entitled to find that attendance at private preliminary hearings and provision of their bundles sufficiently protected the claimants’ legitimate interests. Requiring disclosure of all communications between the active parties would be disproportionate. It was not Keller Postman’s role to police Leigh Day’s conduct of the litigation or challenge its litigation decisions.

5. The alleged perversity necessarily failed. The decision fell well within the broad discretion of the judge entrusted with case-managing this complex litigation.

• Employment Appeal Tribunal — dismissed the appeal: [2024] EAT 52.
• Employment Tribunal — EJ Horne’s case-management order, sent on 26 April 2023 and amended on 12 December 2023, allowed attendance at private preliminary hearings and provision of hearing bundles, but refused disclosure of all inter-party correspondence and documents.