International disclosure: what do the rules say? – Sarnoff v YZ  EWCA Civ 26
An order for disclosure is a fairly routine thing, or so one would be forgiven for thinking. However, when it comes to a disclosure order against a party or person outside of Great Britain, things get a little murkier. The Court of Appeal tried last year to make the waters a little clearer, in its hearing of an appeal covering this exact issue. The appeal was brought by a representative of Harvey Weinstein’s company, against whom a claim was issued in the Employment Tribunal (ET) by someone who says she was employed by the company. The Appellant is, and was at all material times, a resident and citizen of the United States.
When looking at procedural issues, the first step is to consult the Employment Tribunal Rules of Procedure (‘the Rules’). The relevant Rules are found at 29 and 31. Rule 29 deals with case management generally:
29. The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. The particular powers identified in the following rules do not restrict that general power. […]
Rule 31 relates specifically to disclosure, and states:
31. The Tribunal may order any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a county court […]
The issue was whether the Tribunal was able to order disclosure from the Appellant, despite the Appellant’s apparent lack of nexus to Great Britain.
The varying decisions of the lower courts
Both the ET and the EAT decided that disclosure should be allowed, but for different reasons. In the ET, Employment Judge Tayler ruled that the answer to allowing disclosure was to be found in the second sentence of Rule 29: that none of the subsequent rules (including 31) could limit the general power of the Tribunal to make case management orders. As disclosure is a standard case management order, EJ Tayler reasoned, Rule 31 did not limit it.
In the EAT, Kerr J delivered the same result, but for a different reason. As he saw it, the power to make a disclosure order did come from Rule 31, but gave a strained and, to be blunt, acrobatic construction to the language of “in Great Britain” as meaning the location of the Tribunal, rather than the party.
The Court of Appeal
The same decision was reached in the Court of Appeal as in the two lower courts, but for yet another different reason. The Court of Appeal, it is clear from the judgment, wanted to cut out the judicial stretching which had had to happen below in order to reach the right conclusion. Lord Justice Underhill, giving the judgment of the Court, stated that he wanted to reach the conclusion by a “straightforward route”
This route was to explain that the power for disclosure did in fact come from Rule 29. Unlike EJ Tayler, however, Underhill LJ explained that Rule 31 simply did not apply to disclosure orders between parties, and was exclusively for orders against non-parties. As such, EJ Tayler’s judgment on Rule 31’s ability to limit Rule 29 did not apply, and nor did Kerr J’s judgment on whether Great Britain was in reference to the tribunal or the party.
The Court was keen to point out Rule 2, the overriding objective, to set parties on an equal footing. By allowing a party outside of Great Britain to avoid disclosure, no such equal footing could be said to be achieved.
Link to the judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/26.html