Virgin Atlantic Airways Ltd v Lee Loverseed & Ors

For disclosure under CPR 31.6, relevance is an evaluative question, not a case-management discretion. A document is relevant if it is likely to support or adversely affect a pleaded case. A list of issues will ordinarily guide that inquiry, but cannot displace the parties’ statements of case.

Partial redaction is governed by the ordinary disclosure rules. A separate attestation explaining each redaction is not required. The stricter approach to redactions in a contract requiring judicial construction does not apply to ordinary disclosure.

Financial material concerning redundancy options was disclosable where it could bear on the actual selection criteria, their fairness, and the justification and proportionality of indirectly discriminatory criteria.

Twelve current or former flight crew brought claims arising from a COVID-19 redundancy programme. Their claims included unfair dismissal and, for some claimants, indirect sex and age discrimination.

Employment Judge Eeley ordered disclosure of clean copies of internal management documents concerning pilot costs, proposed savings, and redundancy options. The airline had redacted financial information, while retaining redactions concerning identifiable pilot payroll information.

The airline appealed, contending that the information was irrelevant to the pleaded issues, that the requests were an impermissible attempt to obtain material for an unpleaded case, and that the Employment Judge had applied an incorrect approach to redaction. The central issue was whether the redacted financial material was disclosable under CPR 31.6.

1. The appeals were dismissed. The Employment Judge was wrong only if she had treated a separate attestation for each redaction as necessary. That error did not affect the result.

2. Under CPR 31.6, the question whether material is likely to support or adversely affect a pleaded case is an evaluative judgment, rather than an exercise of case-management discretion. Appellate restraint remains applicable to discretionary questions such as necessity and proportionality, but not in the same way to relevance.

3. The parties’ statements of case define the dispute. A list of issues is normally an important guide to disclosure, but it cannot add to or replace the pleaded cases. The disclosure obligation includes material likely to damage a party’s own pleaded case, not merely material affirmatively relied upon by another party.

4. Ordinary partial disclosure permits a party to withhold irrelevant parts of a document under the usual disclosure process. The special approach in Hancock v Promontoria (Chestnut) Ltd [2020] 4 WLR 100, concerning a contract which the court had to construe, was inapplicable. No additional redaction statement was required.

5. The financial information was irrelevant to Mr Loverseed’s narrowly pleaded contention under section 139 of the Employment Rights Act 1996 that he had been displaced by differently qualified pilots. That did not determine the appeal because the information was relevant on the other pleaded bases.

6. The documents were likely to illuminate the criteria actually used for selection, whether those criteria were transparent and fair under section 98(4) of the Employment Rights Act 1996, and whether cost savings and contractual changes influenced their design. They were also capable of affecting the airline’s justification and proportionality case in respect of indirect discrimination. This was not a fishing expedition or an unpleaded sham-redundancy allegation.

7. Disclosure was necessary and proportionate. The material was limited to about 50 existing pages, required no further searches, and could be provided as clean copies. The order was varied only to preserve redactions identifying individual pilot payroll information. Clean copies were to be supplied within seven days.

• Employment Appeal Tribunal: dismissed the airline’s appeals from Employment Judge Eeley’s disclosure order and required clean copies of the documents, except for pilot-payroll redactions, within seven days.
• Employment Tribunal: Employment Judge Eeley ordered disclosure of unredacted management documents after finding the financial material relevant, necessary, and proportionate.