Appeal No. UKEAT/0227/07/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 June 2007

Before
HIS HONOUR JUDGE BURKE QC
(SITTING ALONE)

EB	APPELLANT

BA	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	EB
(The Appellant in Person)
	
For the Respondent	Mr Christopher Jeans 
(One of Her Majesty’s Counsel)
Mr Nicholas Randall
(Junior Counsel)
Instructed by:
Messrs Baker & McKenzie LLP Solicitors
100 New Bridge Street
London 
EC4V 6JA	

SUMMARY
Practice and Procedure – Case management / Bias, misconduct and procedural irregularity

Sex Discrimination – Burden of proof

The Appellant sought to appeal against 3 case management orders made in the course of protracted litigation between her and her ex-employers in which she claims unfair dismissal, sex discrimination and breach of contract.  At the core of her claim is the complaint that, after she transitioned to a female role and then underwent gender reassignment surgery, the Respondents ceased to allocated her to jobs as they had done before and dismissed her for sham redundancy.  The Court of Appeal held that the Respondents should produce a schedule of all projects and proposals in the relevant business area and period; the Respondents did so; there are over 800 of them.  The ET ordered the Appellant to list which of them she did not take issue with – in effect to do a counter-schedule.  The appellant did not do so, asserting that the order had the effect of imposing the burden of proof on her and negating the judgment of the Court of Appeal.   The ET made an “unless order” because of her non-compliance and gave directions, on the basis that the Respondents would or might have to explain their non-allocation to the Appellant in each case, for a trial of 22 weeks.

Held (1) (a)	the original order was binding and could not be attacked collaterally by an attack on the unless order made to enforce it
	(b)	in any event it did not have the effect contended for and was, as was the unless order, an appropriate step by way of case management
	 (2)	The Tribunal had not erred in law in declining to order a Pre-Hearing Review at which the Appellant wished to obtain a strike-out order against the Respondents
	(3)	The Tribunal had made trial directions which, in the circumstances, it was entitled to make
	(4)	There was no arguable case of bias.
	
In the light of (4) it was agreed that the preliminary hearing be treated as the full hearing, submissions in full having been made by both sides.

HIS HONOUR JUDGE BURKE QC

Preliminaries
1.	The Appellant, who is the Claimant in proceedings before the London (Central) Employment Tribunal, appeals against various orders made by Miss Lewzey sitting as Chairman alone, the written reasons for which were sent to the parties on 16 April 2007.  This was to be the preliminary hearing of her appeal; but pursuant to the order of the President made at the sift stage on 3 May 2007 the Respondents were given the opportunity to be heard at that preliminary hearing; and the preliminary hearing was listed for a full day.  The Respondents have appeared by Counsel, Mr Jeans QC and Mr Randall.  The Appellant has not been represented.  The issues have been very fully argued before me; and for that reason, in order to save time and expense, I discussed at the end of the hearing, and in a more general way earlier, whether, subject to one difficulty, the parties would be willing to agree to treat the hearing before me as the full hearing of the appeal.  

2.	The difficulty arises from the fact that one of the Appellant’s grounds of appeal is based on bias of the part of the Chairman.  If I were to conclude that that ground had reasonable prospects of success at a full hearing it would be necessary for me to pursue the procedures set out in paragraph 11 of the Employment Appeal Tribunal Practice Direction 2004 and, in particular, to seek the Chairman’s comments upon the bias allegations; and, therefore, it would be impossible, at least on that issue, to treat the hearing before me as the full hearing of the appeal.  If in contrast I were not so to conclude in relation to the bias issue, no such difficulty could arise; and Mr Jeans on behalf of the Respondents was content that, in that event, I should treat the hearing before me as the full hearing of the appeal.  

3.	The Appellant was doubtful as to whether she could take the same approach.  Her stance was that she did not agree but wished to consider her position; and that was entirely fair.  It was agreed that she would inform me if, after time to consider, she changed her mind.  On 2 July she sent, by fax, a letter to me for which I am grateful.  In that letter she said: 

“I write with respect to your question posed to me at the PH on 28 June 2007, regarding whether the proceedings before you on 28 June 2007 should be considered as Preliminary or Full hearing of the appeal.  I am willing that the proceedings be considered at a Full Hearing of the appeal subject of course to your own reservations as to whether that is possible…” 

And then she goes on to refer to trepidations to which I need not refer but which I understand.  

4.	For reasons I will come to later I have concluded that the case of bias does not have reasonable prospects of success.  I will, therefore, as both parties now agree that I should, treat the hearing before me as the full hearing of the appeal and give judgment accordingly.

5.	By an order of the Deputy Registrar of the Employment Appeal Tribunal, made on 4 May 2007, the parties are not to be identified in these proceedings and steps are to be taken to ensure that potentially identifying material is omitted from any document relating to the proceedings which may be available to the public.  Both parties wish or are content that that order should continue to have effect.  For that reason I shall continue to refer to the parties in this judgment as the Appellant and the Respondents.

The history
6.	The Appellant was employed by the Respondents as a senior associate and, from October 1999, as a principal associate from January 1997 until August 2001.  The Respondents are management consultants with a worldwide business.  The appellant worked in the Financial Services Group or “FSG” of that business.  She was born as a male.  In April 2000 she transitioned to living full time in a female role; and then, in November 2000, she underwent gender reassignment surgery.  She claimed that her dismissal, which it is the Respondents’ case was on the grounds of redundancy, was unfair, that she had been the victim of sex discrimination and that the Respondents had in various ways acted in breach of her contract of employment.  Her claims were heard by the Employment Tribunal sitting at London (Central) and chaired by Mr Barron.  Her complaint of unfair dismissal succeeded on procedural grounds only; her other complaints were dismissed.  She appealed unsuccessfully to the Employment Appeal Tribunal and appealed further to the Court of Appeal where she was successful.  The Court of Appeal remitted the issues of discrimination and redundancy to a fresh Tribunal for a rehearing.  

7.	The thrust of the Court of Appeal’s conclusions is important.  It was central to the Appellant’s claim that, as she contends, from the spring of 2000 when she transitioned to a female role, she was not allocated or “staffed” to work on projects or proposals of FSG as she had been before; in contrast to the regularity of her allocation before those changes, she was allocated to only three projects or proposals in the period from May 2000 up to her dismissal.  The Court of Appeal understood that there were about 200 FSG projects or proposals in the relevant period, although it now appears that the correct number is well in excess of 800 and perhaps 900 (it matters not for present purposes what the precise figure is); and there is a reference to 800 in the Court of Appeal’s judgment.  The figure may be much greater than that contemplated by the Court of Appeal.  Before the Tribunal there had, Mr Jeans told me, been some measure of agreement between himself and leading counsel then appearing for the Appellant as to which projects should be the subject of detailed consideration by the Tribunal; but the hearing proceeded on the basis, as described in paragraph 42 of the judgment of Hooper LJ, with which Moses and Ward LJJ agreed, that the Respondents’ approach to the case was to require the Appellant to identify on which projects she should have been staffed; and it is clear from paragraphs 46 and 47 of that judgment that it was part of the Appellant’s case that the Respondents had not provided details of or disclosure as to all the projects and proposals in FSG within the relevant period.  

8.	The Tribunal had concluded that, pursuant to section 63A of the Sex Discrimination Act 1975, the burden of proof shifted to the Respondents from November 2000.  The Court of Appeal held, at paragraph 40, that the Tribunal ought to have found that the burden of proof shifted to the Respondents “in respect of the period starting May 2000 and running through to the dismissal”.  They went on to criticise the limited disclosure made by the Respondents and the absence of a Scott schedule or other schedule of the projects and proposals of FSG in that period, the absence of which made, they said, the Appellant’s task and that of the Tribunal extremely difficult.  At paragraphs 51-55 of his judgment Hooper LJ said:-

“51.	Whilst having considerable sympathy with the ET, it seems to me that the ET in these passages is overlooking the fact that the burden of proof was on the respondent.  In my view the respondent adopted a fundamentally wrong approach to this litigation and in so doing deprived the appellant of a fair trial.  Although the ET commented upon the absence of documents or schedules from the respondent, it failed to appreciate the consequences of that absence.  Rather, in both paragraphs 75 and 254, it allowed its attention to be diverted to that which was produced by the applicant.  It ought to have grappled with the consequences for the respondent.  Once the burden of proof had shifted, those consequences could only be adverse to the respondent.  The failure was not that of the applicant, it deprived the respondent of the opportunity to rebut the case made against it.  Mr Jeans said it would have been disproportionate to have listed all the projects in setting out why the appellant was allocated to no more than three projects in the period May 2000-August 2001.  I find that difficult to accept.  When he was asked: ‘How many projects were there?’, he was unable to give an answer and referred us to the spread sheet which contains in all some 800 projects over a longer period and is extremely difficult to follow.
52.	Mr Jeans also submitted: ‘If we weren’t asked about [a project] we weren’t required to prove it’.  That demonstrates the respondent’s approach to this litigation and renders s.63A all but meaningless.  If an employer takes the stance adopted by the respondent, namely ‘You prove it’ – then claimants, particularly those with limited or no means, who challenge large corporations in cases of this kind would be at a great disadvantage. Such an approach may well render the reverse burden of proof provision of little or no use to a claimant. The stance taken by the respondent may be suitable for commercial cases. In my view it is not suitable for a difficult discrimination case. It is important, in my view, that tribunals bear in mind the objectives of s.63A at the prehearing and hearing stage. Employers should not be permitted to escape the provisions of s.63A by leaving it to the employee to prove her case. I have considerable sympathy for the appellant. She did, as she said, get the worst of both worlds.
53.	The respondent faced a further difficulty if it was to satisfy the ET that the appellant had not been discriminated against. There were no records, so we understand it, of the discussions and decisions leading to the allocation of projects or proposals. What the respondent sought to do was to reconstruct the reasons for the appellant not being chosen in the projects which she had identified. For example, discussing client 32, Mr Seale as the partner in charge gave reasons why the appellant was not chosen for three projects. The ET said:
‘We fully accept that there was no written documentation in support of the assertions by Mr Seale. However, we have no reason to doubt his evidence.’
54.	It is instructive to remind oneself, in this context, of what I described as the equivocal sentence in paragraph 257 of the ET decision (paragraphs 31—32 above): ‘we are not satisfied that they [the inherently plausible explanations’] were discredited by the applicant.’ The appellant submits that, in the absence of any documentation, her counsel would be unable to discredit Mr Seale’s evidence and yet there was no such documentation produced.
55.	An examination of the detailed conclusions of the ET about the projects which the appellant had identified reveals the difficulties which she and her counsel faced.  Her failure to give evidence about a project was noted.  If a Scott schedule had bee prepared by the respondent summarising all or a substantial number of the projects during the period May 2000-July 2001 with the reasons why the appellant was not chosen, then the appellation and her counsel could then have concentrated on those which supported her case.  As it was, she had to make from memory ‘a shot in the dark’ about which of the projects might support her case.  There was the further difficulty which the ET encountered 9as we did) in cross-referencing the various projects.  The appellant’s counsel could also then have concentrated her cross-examination on the projects which, in her professional judgment, assisted the appellant’s case.”

And at paragraphs 62 and 65 he said:-
 “62.	Mr Jeans submitted that the respondent could discharge the burden of proof on it by either general evidence or her relative lack of competence and suitability combined with market deterioration or by a detailed analysis of the projects and proposals to which she was not staffed.  I disagree.  On the facts of this case only a detailed analysis could, in my view, discharge the burden.  Without such an analysis it is very difficult to see how and the respondent could justify the fact that the appellant was only allocated to some three projects over such a long period.
65.	This case called out for a prehearing case management conference during which the consequences of the burden of proof moving to the respondent (if it was later found that it did move) were worked out.  As it was the hearing on November 7 2002 (paragraph 28 above) left matters very much in the air.”

9.	The Court of Appeal having, for those reasons, allowed the Appellant’s appeal and the Respondents’ petition to the House of Lords for leave to appeal further having failed, the case returned to the Tribunal.  

10.	It is common ground that it will be open to the fresh Tribunal which rehears the Appellant’s outstanding claims to decide for itself whether the evidence is such that the burden of proof shifts to the Respondents pursuant to section 63A of the 1975 Act; but it is, of course, to be anticipated that they may do so.  In that event the Respondents will need to rely on a detailed analysis of the projects and proposals to which the Appellant was not staffed if they are to discharge the burden of proof: see paragraph 62 of Hooper LJ’s judgment.  Clearly the Court of Appeal envisaged that a Scott schedule or the like of FSG’s projects and proposals in the relevant period would be an essential pre-requisite to the rehearing.  

11.	On 10 April 2006 Mr Latham, the Regional Chairman of the London (Central) Employment Tribunal, at a case management discussion by telephone, ordered that such a schedule be sent by the Respondents to the Appellant and the Tribunal by a date at the end of May.  A further case management discussion was ordered for 12 June 2006 and took place on that day before a different Chairman, Miss Lewzey, who has conducted all subsequent hearings (as far as I am aware).  She made various orders for the provision by the Appellant of further and better particulars.  Apart from those orders she adjourned the case management discussion to 31 August and 1 September 2006.  In her reasons she described how the Respondents had produced a schedule or schedules of over 800 projects and proposals within the relevant period.  Mr Jeans had said that if a detailed analysis of all would be required at the hearing, the hearing would take 120 days and suggested ways by which the hearing could be limited.

12.	The Appellant applied for a pre-hearing review to determine whether the Respondents’ response should be struck out on the basis that they had withheld evidence, redacted documents and failed to make proper disclosure.  The Chairman did not grant the application.  She made the order for particulars referred to above at least in part so that the allegations which formed the basis of the application would be properly particularized and said that she would decide on paper whether there was to be a pre-hearing review after delivery of those particulars and after the Respondents had had an opportunity to respond to them.  She subsequently, in a judgment sent to the parties on 15 August 2006, rejected the Appellant’s application for a pre-hearing review.  At the adjourned case management discussion on 31 August 2006 the Chairman made various orders for disclosure by both parties, as to coding, as to witness statements and as to a schedule of loss.  The full hearing was fixed to last for 16 weeks starting on 3 September 2007.  
13.	Under the heading “witness information” she ordered as follows at paragraph 3.2:-

 “The Claimant is ordered to indicate which projects or proposals or groups of projects or proposals she does not wish to pursue by 28 March 2007.”  

She also fixed a further case management discussion for 4 April 2007.  Her reasons refer to there being 885 projects and proposals and to the Respondents having 121 live witnesses only 44 of whom were still working for them. The Respondents, she records, were then estimating that a 25 week hearing would be required.  

14.	The Appellant appealed to the Employment Appeal Tribunal against some of the orders made thus far to which I have referred and (I believe but it makes no difference if my recollection is inaccurate) against the refusal of a pre-hearing review.  I have not seen any notice or notices of appeal; and the parties were unable to tell me specifically whether paragraph 3.2 of the order made on 31 August 2006 was included as a target in the Appellant’s appeal or appeals.  Whatever appeal or appeals were brought did not get beyond the sift stage of the Employment Appeal Tribunal’s procedure.  It was or they were rejected under rule 3 of the Employment Appeal Tribunal Rules by HHJ McMullen QC on 17 October 2006.  Either paragraph 3.2 of the order of 31 August was not challenged by way of appeal; or, if it was, that challenge failed.  Either way the Appellant was bound by that paragraph. 

15.	On 2 October 2006 the Appellant wrote a lengthy letter to the Tribunal requesting clarification of that order, made at paragraph 3.2 of the decision at the case management discussion on 31 August 2006.  I do not propose to set out the whole of that letter.  The fourth paragraph of the first page is as follows:-

“Secondly taken together her order in paragraph 3.2 and her reason in paragraph 1.2 of her reasons would seem to indicate that unless the Claimant included any particular project or proposal in her response complying with the Chairman’s order at paragraph 3.2 then the Respondent will not be required to put evidence before the Tribunal in relation to the projects-proposals not included.  Please clarify whether I have understood the Chairman’s intention correctly in this respect.  Please further clarify if the Chairman has made this order of her own motion or after representations from the Respondent to that effect.”  

A copy of that letter was sent to the Respondents’ solicitors who, in their response of 12 October 2006 addressed to the Tribunal, said: 

“it is correct that any project or proposal or group of projects or proposals that the Claimant concedes she does not wish to pursue by 28 March 2007 will not be in issue at the Tribunal, unless the Respondent itself  wishes to refer to a particular project or proposal, and therefore there will be no need for either party to adduce any evidence at the hearing on the same.  It is thereby hoped that the length of the hearing, currently set to run for 4 months with possibility of extending to six can be significantly reduced, but this depends on the approach taken by the Claimant.”  

16.	The Tribunal responded on 16 November 2006, perhaps unusually to a request for clarification, in these terms:-
 “Without prejudice to your right to comment, the Chairman of the Tribunals makes the following preliminary explanations.
Paragraph 3.1 – Witness Information
The Chairman’s note records that witness information would not be a witness statement, but information in a scheduled format which you will have the opportunity to analyse.  It was anticipated that you would have the opportunity to study the list, look at the explanations and take a view as to whether these were any cases or groups which you did to want to pursue.
Paragraph 3.2
Your understanding is correct.  The intention is to assist in reducing the length of the hearing, whilst adhering to the guidance given by the Court of Appeal.  The order was made after hearing submissions by the Respondent and by you.
Paragraph 3.2 – Third question raised
It was anticipated, after submissions by both sides, that you would be able to make a decision as to which proposals or projects you wished to proceed with by 28 March, in the light of the scheduled format witness information that you receive by 31 January in accordance with paragraph 3.1.

17.	These responses make it clear, in my judgment, if it was not already clear, that if the Appellant identified a particular project or proposal or group of projects or proposals as one which she did not want to pursue at the hearing, there would be no need for evidence from either party as to it although the Respondents were reserving their position to call evidence about it if they wished and that the purpose of the order was to reduce the length of the hearing without failing to follow the guidance given by the Court of Appeal.  
18.	On 4 April 2007 the parties returned to the Tribunal for a further case management discussion.  The Respondents had found a further 30 cases which they wished to add to the schedules of projects and proposals; and orders were made in that respect into the details of which I do not need to go.  The Chairman made the following orders inter alia:-

1) At paragraph 2 she ordered as follows:-
“2.	Unless the Claimant indicates which projects or proposals or groups of projects or proposals she does not wish to pursue by 27 April 2007, her claim will be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under Rule 19 or hold a pre-hearing review or hearing in accordance with Rule 13(2) of the Employment Tribunal Rules of Procedure 2004.”
2) At paragraph 1 she rejected the Appellant’s further application for a pre-hearing review.
3) At paragraph 9 she ordered that the hearing would take place over 22 weeks between 3 September 2007 and 7 March 2008.  

It is these orders which are challenged in the present appeal.  

19.	I propose to address those challenges in the sequence in which I have set out the 3 disputed orders and, then, to address the Appellant’s allegations of bias which, of course, go to those orders and the conduct of the hearing of 4 April generally.  

20.	I do not, because this is an interlocutory appeal and because I have promised to produce this judgment within a very limited time frame, intend to go through, in relation to each aspect of the Appellant’s case, all of the detailed submissions which she has made to me or, for that matter, through all of Mr Jeans’ submissions.  Time is limited because the Chairman had fixed a further case management discussion for 14 June 2007; that date has passed; and that discussion has been postponed; but meanwhile the Respondents have taken the position that the Appellant has not complied with the “unless order” made by the Chairman on 4 April and have applied for an order that her claim is or should be struck out; and the Chairman, I was told, is urgently waiting to deal with these outstanding matters.  

21.	For those reasons, although I felt obliged to reserve my decision because I had had little opportunity to pre-read the primary papers on this appeal and no opportunity at all to pre-read the extensive supplemental bundles put in by the parties, I undertook to give my decision today.  It has not proved possible in the time available for the judgment to be typed and handed down.  That is why I am giving it orally.

The “unless order”
22.	The Appellant’s argument in respect of the “unless order” falls under two separate headings.  By the first, she submits that the Chairman was wrong in law to make the order because it has the effect of reversing back on to her the burden of proof which, at least conditionally, is likely to be imposed on the Respondents at the hearing as it was (although not sufficiently so according to the Court of Appeal) at the first hearing and because it has the effect of setting at naught the judgment of the Court of Appeal.  Under the second heading she submits that she has in any event complied with the original order made at the case management discussion on 31 August 2006.  

23.	The foundation stone of the first line of attack upon the “unless order” is the Appellant’s submission that the effect of the order that the Appellant should identify projects or proposals set out in the Respondents’ schedules, together with in each case, the Respondents’ explanation or case as to why that project or proposal was not allocated to the Appellant, which she does not wish to pursue i.e. which she accepts could or would not have been allocated in any event to her (and there is no doubt that both sides understand the original order in that way,) is that the Court of Appeal’s decision is nullified and that the burden of proof, rather than potentially switching to the Respondents in the event of proof of facts from which an inference could be drawn that the Respondents treated the Appellant less favourably on the ground of sex, was now firmly being placed on the Appellant.  She submitted that the effects of paragraphs 51 and 52 of Hooper LJ’s judgment were such that she did not have to set out and could not be required to set out which of the projects and proposals listed in the Respondents’ schedules were, or were not, according to her case, the subject of discrimination in order to set those projects or proposals in play and that the order that she should now set out which project or proposals were not in issue reproduced the position, which the Court of Appeal had strongly deprecated in those paragraphs, whereby the Respondents were able to run their case on the basis that, if the Appellant did not identify a project or proposal as being in issue, they did not have to adduce evidence about it.  

24.	The Appellant submits that, for those reasons, she should not be required to draw up any such list as that which was originally ordered on 31 August 2006.  She says that she is entitled to make no concessions and to require the Respondents to call evidence as to each project or proposal in order to discharge the burden of proof, if they decide to do so and assuming that the Tribunal reaches a sufficient preliminary conclusion to bring section 63A of the 1975 Act into effect.  The Appellant points out that in Qureshi v Victoria University of Manchester [2001] ICR 863 the Employment Appeal Tribunal held that where there are many individual allegations of discrimination, it is not necessary for the Tribunal to ask itself in relation to each incident whether that incident was or was not discriminatory but should find the primary facts and then look at the totality of the facts to decide whether or not there has been discrimination.  Therefore it was suggested that, although it was for the Respondents to decide what evidence they called, they did not need to call evidence as to each and every project or proposal; but the burden of proof lay on the Respondents in respect of each proposal; and it was not for the Appellant to make concessions which would have the effect of eliminating from the Tribunal’s consideration any particular project or proposals when they came to look at the conduct of the Respondents as a whole.  

25.	The Appellant further submitted that the Respondents’ schedules amounted to no more in effect than pleadings in which assertions of fact were made which put forward the Respondents’ explanation of the staffing selection for each project or proposal.  She referred as an example to pages 108 and 109 in her supplementary bundle, pages from one of the Respondents schedules which listed a number of proposals.  She should not, she said, be required to accept the explanations there given in what was in effect a pleading without seeing the evidence in the form of witness statements which supported those explanations.  This was particularly so when, in the case of a very substantial proportion of the proposals of the project, she asserted, there is no documentary evidence as to the staffing process.  The Court of Appeal, it was submitted, contemplated a schedule which would identify the witnesses who made the factual assertions on which the Respondents relied and cross-referred to the evidence which supported those assertions.  

26.	There are two further arguments which, although not expressly put forward by the Appellant orally, are to be found in her skeleton argument and Notice of Appeal and which it appears to me to be right to address.  They are, firstly, that an effect of the impugned order is to require the Appellant to disclose material which is subject to privilege, for the reasons set out in detail at paragraph 8 of the Notice of Appeal and, secondly, that the Chairman had no power to make the order she made; such an order can only be made by a Tribunal at a pre-hearing review.  

27.	The argument that the Appellant has complied with the original order is based upon a letter sent to the Tribunal and copied to the Respondents’ solicitors on 28 March 2007.  That letter begins by asserting that the Tribunal had failed to clarify the effect of the original order, and its customers:-

“Statute and the relevant case law are clear that, should the burden of proof transfer to Respondent, the Respondent will be required to prove, in accordance with the requisite purposive interpretation of the directives and of statute and in accordance with those directives, that there has been “no breach of the principle of equal treatment”
Bearing in mind the previous correspondence on the point, and the Respondents’ assertion that in the event the Claimant indicates she does not wish to pursue a particular project/proposal they will put no evidence before the Tribunal in relation to that project/proposal two possible consequences arise if the burden of proof transfers to the Respondent under Section 63A;-
Case 1: The Claimant by having indicated that she does not “wish to pursue” a particular project/proposal is deemed to have conceded the Respondents’ explanation and the Respondent succeeds or,
Case 2: The Claimant is deemed to have not conceded in relation to that particular project/proposal (see Respondents’ letter to the ET in this respect) and therefore, the Respondent having produced no evidence to support their asserted explanation, the Respondent is deemed not to have met their burden of proof and the Claimant succeeds.”

Subsequently in that letter the Appellant set out further details of what she was saying in relation to case 1 and in relation to case 2.  She submitted that that letter amounted to sufficient compliance with the order.  She was not obliged to concede anything and it was sufficient compliance for her to say as she submitted she did in that letter that she conceded nothing.

28.	I asked the Appellant to tell me how, in respect of the first limb of her argument, she got around the difficulty that the original order, at paragraph 3.2 of the order of 31 August 2006, was final.  Her answer, which I will summarise, was that:  

1)	if the original order was wrong in law in the first place it was irrelevant that it was not appealed; and
2)	the original order was wrong in law for the reasons which I have set out.

29.	The Appellant referred me to excerpts from the decision of the Court of Appeal in Jaffrey and Others v Society of Lloyds [2002] EWCA Civ D. 1101 which relate to what constitutes a fair trial, to equality of arms and to the importance, under article 6 of the European Convention of Human Rights, of the guarantee to the parties of an opportunity for them to have knowledge of and to comment on all of the evidence.  I will return to these considerations later.  They are not, in my judgment, directly relevant to the issues as to the “unless order”.  So far as that order is concerned, the provisions of article 6 in my judgment add nothing to the principles of domestic law.  

30.	Mr Jeans firstly reminded me, by reference to the decision of the Court of Appeal in Noorani v Merseyside TEC Ltd [1999] IRLR 184, that the Chairman in making the orders of which the Appellant now complains was exercising case management powers and that an Appellate Court or Tribunal should only interfere with any such decision on very limited grounds, as set out by Henry LJ, with whom the other members of the Court agreed, at paragraph 32 of his judgment.  The Chairman’s decisions and, in particular “the unless” order fell well within the proper exercise of her discretion.  He submitted that the “unless order” was in any event appropriate and not in any respect in conflict with what was contemplated by the Court of Appeal when, at paragraph 55, which I have already quoted, Hooper LJ referred to the importance of the absence at the first hearing of a Scott schedule.  

31.	In the schedule which had since been provided, Mr Jean submitted, was now to be found the detailed analysis referred to in paragraph 62 of Hooper LJ’s judgment.  The Court of Appeal did not suggest that the scheduling exercise was one which would require the Respondents to provide, at that stage, their witness evidence or the names of the witnesses whom they proposed to call.  The exercise was a scheduling exercise, contemplated as one which would enable the Appellant, rather than making a shot in the dark, to concentrate on those projects and proposals, as seen from the details provided, which might support her case; this was precisely what Hooper LJ had intended should happen.  However Mr Jeans accepted and, indeed, submitted that there had to be some cutting down of a case which, both sides agreed, would be unmanageable if it did indeed involve investigation over 20 weeks plus of all the 800-900 projects and proposals each of which had to be the subject of individual evidence, analysis and assessment.  He pointed out that the Appellant herself made that point with force and was critical of the Chairman’s trial directions; yet she was refusing to co-operate in achieving reduction in the size of the case by, in effect, producing a counter-schedule while, at the same time, complaining about the size of the case.  The Respondents had at considerable expense listed all the schedules and put forward an explanation in each case.  It was then clearly open to the Chairman to take the view that the Appellant, who sat in on weekly staffing calls and was aware of who was being staffed to what projects and proposals, to indicate in respect of the scheduled projects and proposals whether she did or did not accept the explanation put forward.  If that was not done, even in cases where the explanation put forward was such the Appellant could not in reality have expected to be staffed to such cases, witnesses, many from abroad, would have to be prepared, interviewed, and called to the Tribunal with the very real prospect that such evidence, in the end, would not be challenged.  Furthermore, Mr Jeans submitted, the Appellant had expressly accepted before the Chairman on 4 April, (as she did before me) that some of the projects and proposals in the schedules were, she contended, irrelevant; but she refused to identify which those were when asked to do so by the Chairman and maintained that she should not be required to do so.  Mr Jeans further submitted that in any event the order of 31 August 2006 was a final judgment between the parties; it could not now be attacked collaterally by an attack on the order of 4 April 2007 of which was directed at enforcing the original order.  

32.	I propose to begin my response to the submissions put before me (and I repeat that I have not sought to set them all out but to summarise them) with my conclusions as to the effect of the order of 31 August 2006.  As I have said, that order was either not appealed or, if it was, the appeal was unsuccessful.  Either way, that order is final; and it is not, in my judgment, open now to the Appellant to seek to attack it on the basis that it was made an error of law.  The Chairman, on 4 April, was confronted by a situation in which the order of 31 August was an effective order, with what the Appellant was required to comply.  The only issue, insofar as it was in dispute, was whether she had complied with it.  

33.	That, as I see it, is of itself a sufficient answer to the Appellant’s arguments about the “unless order”, save for her arguments as to compliance; but it seems to me to be important that I should, nevertheless, address and resolve the rival arguments on the hypothesis that it is open to the Appellant to challenge the “unless order” on the basis that the Chairman should not have made the original order at paragraph 3.2 of the order of 31 August.  

34.	In my judgment there is nothing in what the Court of Appeal said which indicates that, in order to overcome the difficulties described in Hooper LJ’s judgment and to correct the “fundamentally wrong approach to the litigation” adopted by the Respondents at the first Tribunal hearing, it was necessary, at the stage which the litigation had reached and before the Appellant responded to the Respondents’ schedule, for the Respondents to identify their witnesses to the Appellant or to provide the witness statements on which they would or might apply.  As I read Hooper LJ’s judgment, what was contemplated was, as set out in paragraph 55, that there would be a Scott schedule of all or of a substantial number of the projects and proposals during the period May 2000 – July 2001, giving the reasons why the Appellant was not chosen for them or describing how staffing was dealt with.  Armed with that material it was contemplated that the Appellant would then be able to focus her attention on those projects and proposals which supported her case.  The steps taken so far, in my judgment, comply with what was intended by the Court of Appeal.  I do not accept the argument that imposing a requirement on the Appellant to indicate which projects or proposals set out in the schedule she does not wish to pursue, in the circumstances I have described and after the Respondents had taken the steps which I have described, had the effect either of imposing or of potentially imposing on the Appellant a burden of proof which should lie on the Respondents or of negating the intention or thrust of the Court of Appeal’s decision.  The Appellant is not required by the order of 31 August 2006 or the “unless order” to prove anything.  The burden of proof remains unaffected; and at the eventual trial the Tribunal will be required to approach the burden of proof along the lines of the principles set out in Igen Ltd v Wong [2005] IRLR 258, set out at paragraph 34 of the judgment of Hooper LJ, as explained in subsequent decisions of the Court of Appeal and the Employment Appeal Tribunal, for instance the decision in Madarassy v Nomura [2007] IRLR 246.  

35.	By 31 August 2006 the Respondents had provided the schedules and explanations which I have described; and if the Appellant were to be asked, in the light of that provision, to state which projects and proposals she took issue with, it was, in my judgment, open to the Chairman to take the view that she would not be undertaking that exercise in the dark but in a position very different from that which prevailed first time round i.e. before the original Tribunal.  The position before the Chairman on 31 August was that, unless in some way the number of projects and proposals which had to be examined in the evidence were to be cut down, an enormously lengthy and expensive trial would have to be prepared and would have to take place; yet in that trial it might well turn out that many of those projects and proposals would not be the subject of dispute or challenge at all.  I give two examples identified to me by Mr Jeans.  At number 297 in the Respondents’ schedule of proposals is a proposal to a small or medium size Dutch bank for which the Dutch language was required.  A Dutch partner was the only person allocated to that proposal.  At number 201 in the schedule of projects is a project which involved 4 hours of work for a Swedish company in the health industry to which a local Swedish consultant was allocated.  It was necessary in my judgment - and it is not necessary for me to go that far - but it was certainly open to the Chairman to regard it as necessary for some steps to be taken in order to cut down the scope of the trial by narrowing the issues and by eliminating the need asserted by Appellant, in so far as it could be eliminated, for the Respondents to interview and take witness statements from and call at the trial a substantial number of witnesses, many from overseas, and to decide that the Appellant should be called upon to respond to the schedules as required by the order of 31 August 2006.  

36.	In stating what was necessary, I am of course guilty of putting forward my own view; and I must and do approach this appeal on the basis that the Chairman’s decision was a case management decision in which she was exercising her discretion.  I accept that I must not allow this appeal or any element of it unless the decision in question was one which fell within the limits set out by Henry LJ in Noorani.  Applying that principle, I have no doubt that it was open to the Chairman to make the order she did on 31 August 2006.  It is common in many types of litigation where complex issues of fact arise that 1) one party, usually the party bearing the burden of proof, is required to draw up a schedule and to set out its case in brief as to each item on that schedule and 2) thereafter the opposing party is required to set out either on that schedule or in a separate counter schedule its response to each such item.  This exercise is a normal and standard aspect of case management in cases appropriate for a schedule, as this case undoubtedly is for the reasons set out by the Court of Appeal.  It does not involve any reversal of the burden of proof or any injustice to the party required to respond.  

37.	I am equally satisfied that, subject to the compliance point to which I will come, it was open to the Chairman to make the order which she made on 4 April.  I do not need to repeat what I have already said about the earlier order.  By April 2007 despite or perhaps because of the explanation given by the Tribunal and by the Respondents as to the meaning or effect of the order, the Appellant was still refusing to go further than she had thus far gone by way of compliance.  Furthermore at the hearing, as she accepted before me, she did indeed say that some of the projects in the schedule were irrelevant; yet she was unwilling to identify them.  When I asked her what she meant by irrelevant, she accepted that they were projects or proposals on which she would never have been staffed; but, she said, because the Respondents had put these projects into the schedule they were relevant; and it was for the Respondents to call evidence about them if they wished; she should not be required to make concessions.  

38.	As to privilege, I do not accept the Appellant’s arguments.  The Tribunal and the court are entitled in appropriate circumstances to require a party to plead his or her case and to complete a schedule in a proper manner.  Of course, doing so requires that information be given to the Tribunal or court which otherwise a party might prefer to keep secret; but the exercise is one that does not impinge on legal professional privilege or on any other aspect or privilege and is carried out in the cause of the need to achieve the purposes of the overriding objective.  

39.	As to powers, the orders made by the Chairman on 31 August 2006 and 4 April 2007 were, in my judgment, case management orders made under rule 10 of Schedule 1 to the Employment Tribunal Constitution and Rules of Procedure Regulations 2004 at a case management discussion at which a Chairman is specifically empowered by rule 17(1) to make orders by way of dealing with the procedure and management of the case.  I accept that a Chairman at a case management discussion may not make an order or judgment of the type listed in rule 18(7); see rule 17(2); but the Chairman was not, on 4 April, contrary to the Appellant’s contention, making an order as to the entitlement of a party to bring or defend particular proceedings within rule 18(7) or limiting the Appellant’s power to cross-examine at the trial.  She was doing no more, in my judgment, than making, as she was entitled to make in the exercise her discretion, an order intended to enforce her earlier order which also fell within her powers.  
40.	Was there non-compliance with the order?  For, of course, if the earlier order had been complied with, the “unless order” should never have been made.  It is said that compliance is to be found in the Appellant’s letter of 28 March 2007; but in my judgment that is not so.  The letter put forward two hypotheses, case 1 and case 2, on the basis that there had been no clarification or “binding determination” by the Tribunal of the meaning of the order of 31 August 2006, although in my judgment the order is in no meaningful sense ambiguous.  It continues that the Claimant’s response depends critically on which of the two hypotheses is correct and proceeds to set out a response on the basis that case 1 applies and then that case 2 applies, in each case without prejudice to the alternative response.  If case 1 applies, the Appellant says, she requires the Respondents to satisfy the burden of proof in respect of all proposals and projects; if case 2 applies, she says that she does not wish to pursue any proposals and projects.  I agree with Mr Jeans’ comment that that letter does not clarify the Appellant’s position at all.  It leaves the Tribunal and the Respondents in no better position then they were in when the order of 31 August 2006 was made.  

41.	It was open to the Appellant, in the light of the explanations in correspondence of the effect of the order, to have limited herself to case 1 or case 2; but she did not do so.  Indeed it is to be observed that, in her affirmation given in support of her allegations of bias dated 18 April 2007, she said this:-

“I pointed out to Miss Lewzey that I would comply with her previous order indeed have given two answers explaining that depending on what the consequences of the transfer of the burden of proof to the Respondent would be then the answer would be different and that that issue required determination by her in accordance with the Court of Appeal decision which had remitted this case back to the Employment Tribunal.  Nevertheless in the absence of any such determination by her in accordance with the overriding objective I have provided the response to cover both of these eventualities.”

That paragraph appears to me to make it clear that there had not been, by the letter of 28 March 2007, sufficient compliance with the order.  
42.	At one stage the argument before me turned to a discussion as to whether what was described by Mr Jeans as a “nil return” i.e. an answer from the Appellant that every project and proposal was in issue and that she did not make any concessions in respect of any of them would amount to compliance with the orders.  There was, not surprisingly, disagreement on that issue.  Mr Jeans, however, urged me not to resolve that disagreement, with which the Chairman will need to grapple when she rules on the Respondents’ application that the Appellant should be struck out for non-compliance with the “unless order”; and I agree that I need not and, therefore, should not do so.  It is not, in any event, necessary to do so because I take the view that the letter of 28 March does not amount to compliance with the order of 31 August, not because it is a “nil return” but because it does not contain any definitive or clear response to the order of 31 August 2006 at all.  

43.	Furthermore the Appellant, as I have said, conceded before the Chairman that some of the projects and proposals were irrelevant, yet she maintained her stance that she was not obliged to identify those cases even though it is common ground of the cases unmanageably brought in its present form and without some reduction of the 800 plus projects and proposals.  

44.	For these reasons the Chairman was, in my judgment, acting within the proper ambit of her discretion in the circumstances I have described in making the “unless order”.  

45.	It is necessary to record that, in the course of the argument, the Appellant told me that, in her view, there were, in addition to projects she regarded as irrelevant, highly relevant projects which had not been set out in the schedule.  She has told me that she said this, too, to the Chairman on 4 April who perhaps, not surprisingly, reacted by asking her to provide a list of those projects; but the Appellant told the Chairman, as she told me, that she could not be required to do so because she should not be required to draw the Respondents’ attention to gaps in their case when the burden of proof lay on them.  This exchange exemplifies that it was open to the Chairman to take the view that an “unless order” was appropriate for good and sound case management purposes.  It was open to her to take the view that without such an order the issues would not be limited as, plainly, it was important that they should be.  

The pre-hearing review application 
46.	The Appellant sought, by letter to the Tribunal dated 2 February 2007, an order that there should be a pre-hearing review before a full Tribunal to consider an application that the Respondents’ response should be struck out on the grounds, she submitted, that it had no reasonable prospect of success and that there was continuing wilful and contumelious failure by the Respondents to comply with orders of the Tribunal.

47.	At the hearing on 4 April the case was put forward on the first of those two limbs, as the Appellant confirmed.  The basis of the application was that the Respondents do not have documentary evidence in respect of and therefore, it was submitted, could not support the explanations given in their schedules in respect of 40% of the projects and 60% of the proposals and that, therefore, the Respondents could never discharge the burden of proof imposed on them.  At paragraph 1.3 and 1.4 of her reasons for rejecting this application the Chairman said:-

“1.3	The Chairman considered the application for a pre-hearing review by the Claimant to decide whether the burden of proof moved to the Respondent. In this connection the Chairman took into account paragraph 65 of the Court of Appeal Judgment in EB -v- BA which states:
“This case called our for a pre-hearing Case Management Conference during which the consequences of the burden of proof moving to the Respondent (if it was later found that it did move) were worked out.”
The Chairman considered that the words “if it was later found that it did move” were crucial. The determination of whether the burden of proof moves is a matter which the Tribunal hearing the case has to decide as part of its decision making process after hearing all the evidence. It did not seem to the Chairman that this was a matter that could be dealt with at a pre-hearing review before a differently constituted Tribunal prior to hearing the evidence. Such a course of action is not in accordance with the guidance now prevailing from the higher courts in Igen -v- Wong and the other recent authorities.
1.4	The Chairman refused to grant a pre-hearing review because the issue of whether the burden of proof moves is a matter that must be determined by the Tribunal that hears the case and is not suitable for determination at a pre-hearing review. Paragraph 55 of the Judgment in EB -v- BA sets out what is required. It states:
“If a Scott Schedule had been prepared by the Respondent summarising all, or a substantial number of the projects during the period May 2000 to July 2001 with the reasons why the Appellant was not chosen, then the Appellant and her counsel could have concentrated on those which supported her case. As it was she had to make from memory ‘a shot in the dark’ about which of the projects might support her case.”
The process which the Respondents’ have gone through in producing the Scott Schedule which, at present covers 885 projects and proposals is to avoid the Claimant taking “a shot in the dark”.”

48.	The Appellant submitted that, here, the Chairman had gone off in the wrong direction.  Her application was made not so as to seek a ruling as to the burden of proof or its effect but on the basis of the Respondents’ inability to discharge that burden; as she put it to me, there ought to be a pre-hearing review to consider the effect of the shifting of the burden of proof in a situation in which the Respondents were unable to prove their case.  She pointed to paragraph 65 of Hooper LJ’s judgment in which he said that there would need to be a “pre-hearing case management conference” during which the consequences of the burden of proof moving to the Respondent, if it was later found that it did, were worked out.  She was pursuing, she said, a   pre-hearing review in order to establish those consequences; and she submitted that the Court of Appeal had said at paragraph 65, that such a pre-hearing review must take place, that the issue is res judicata and that the contrary is unarguable.  

49.	In my judgment it is wholly clear that the Court of Appeal did not propose, still less decide, that the Tribunal must hold a pre-hearing review for the purpose put forward by the Appellant or at all.  

50.	In paragraph 65 of his judgment Hooper LJ referred to the need for a case management conference.  Rule 14(1) of the 2004 Rules provides as follows:-

“14	Hearings-general
	(1)	A chairman or a tribunal (depending on the relevant rule) may hold the following types of hearing-
	(a)	a case management discussion under rule 17;
	(b)	a pre-hearing review under rule 18;
	(c)	a Hearing under rule 26; or
	(d)	a review hearing under rule 33 or 36”

51.	In the Employment Tribunal, under these Rules, what would be called a case management conference in the civil courts is described as a case management discussion.  As already pointed out earlier in this judgment for different purposes, a case management discussion differs from a pre-hearing review; the former is governed by rule 17, the latter by rule 18; the powers and procedures differ substantially between the two forms of hearing.  I am wholly un-persuaded that Hooper LJ intended, by the words of paragraph 65 of his judgment, to prescribe that there must be or to propose that there should be a pre-hearing review.  He was, in my judgment, contemplating that there should be a case management conference or discussion at which the Tribunal would have to decide, by way of case management pursuant to its powers under rule 10 and rule 17, how to deal with the consequences of section 63A of the 1975 Act for this litigation.  

52.	In the light of the reasoning given by the Court of Appeal for allowing the Appellant’s appeal I am equally of no doubt that the Tribunal has, in good measure, followed Hooper LJ’s words.  There have been four case management discussions so far, starting from 10 April 2006 when Mr Latham ordered the Respondents to produce a complete schedule of the proposals and projects, the absence of which in the light of the shift of the burden of proof was central to the Court of Appeal’s decision.  There is nothing, in my judgment, about the Tribunal’s case management orders or about the Chairman’s refusal on 4 April to order a pre-hearing review which is inconsistent with Hooper LJ’s judgment.  On the contrary those orders have sought to give effect to that judgment.  

53.	However that conclusion does not dispose of the Appellant’s argument that the Chairman misunderstood the grounds of her application for a pre-hearing review and decided against her on the pre-hearing review issue on a false basis.  Mr Jeans submitted that the application was a repeat, albeit in somewhat different language, of the Appellant’s attempt to obtain a pre-hearing review which was rejected by the Chairman in August 2006; and it is correct that, by that application the Appellant was seeking a pre-hearing review in order to obtain a striking out order against the Respondents on the basis of their alleged failure to abide by earlier orders.  That may be why the Appellant did not, in her criticism of the Chairman’s refusal to order a pre-hearing review on 4 April before me, put that basis in the forefront of what she said but proceeded on the basis that the Respondents had no reasonable prospect of success.  It does not, however, appear to be the case that the Appellant in April 2006 was seeking a strike-out order on the basis that, because the Respondents had no documents in respect of a large proportion of the projects and proposals, as is asserted by the Appellant but not accepted by the Respondents, they were bound to fail.  On the other hand, the Appellant’s letter of 2 February does not explain that the Appellant was now making a new or different point, at least in clear terms; much of the letter refers to alleged failures in relation to disclosure etc, complaints similar to those supporting the first pre-hearing review application; and having read the Appellant’s letters and heard her, I suspect that there is likely to be some force in Mr Jeans’ comment that she does not always in oral argument put her points in the same way as she has done in correspondence.  

54.	Furthermore, at paragraph 1 of her reasons for rejecting the application for a pre-hearing review on 4 April, the Chairman specifically referred to what the Appellant put to me as her central argument.  She plainly had it in mind.  

55.	In the circumstances I do not conclude that the Chairman approached this application on a wholly erroneous basis; I do not think that she did.  However, if she did err in that way, I am of the very clear view that, absent such error, she would inevitably have rejected the application.  Another way of putting this conclusion is that, on the hypothesis of the error of law on the part of the Chairman upon which the Appellant relies, I have before me all the necessary material on which to exercise the discretion which the Chairman purported to exercise and would exercise my discretion by not ordering a pre-hearing review.  

56.	In my judgment the Appellant’s basic approach here is mistaken.  It does not follow from the absence of documents on which the Appellant relies that she is entitled to or indeed has any substantial prospect of obtaining an order striking out the Respondents response at a pre-hearing review if one were ordered.  Let us accept that, in many cases, the Respondents did not make a written record of the allocation process or have no record of it now, if they ever made one; but that does not mean that the Respondents are bound to fail.  There is no reason why they should not wish to resist the Appellant’s claim and, if it transfers, to discharge the burden of proof on them, in relation to both projects and proposals, by calling oral evidence to explain, in the case of each of those which they choose to explain, (if such projects or proposals are put in issue by the counter-schedule for the Appellant), to whom that project or proposal was allocated, why it was so allocated and why it was not allocated to the Appellant.  Furthermore as the Chairman pointed out at paragraphs 1 and 3, the Tribunal has not yet decided that the burden of proof will shift to the Respondents at all.  

57.	I agree with and adopt all that the Chairman said in paragraphs 1.3 to 1.5 of the reasons, (save perhaps for the first sentence of paragraph 1.3), all of which, in my judgment, cannot be faulted.  For those reasons the appeal against the Tribunal’s rejection of the Appellant’s application for a pre-hearing review fails.  

The fairness of the hearing
58.	The Appellant submitted that the directions for a trial of 22 weeks, starting on 3 September, should be set aside on grounds that a trial of that length would be unfair and oppressive to her.  She is unrepresented, lives in a one bedroom flat without any storage space for the over 100 volumes of documents, has minimal resources, would not be able to afford daily transcripts and would be gravely handicapped, as compared with the Respondents, in seeking in such circumstances to handle a very high value claim, she put it at least £10 million, as compared with the Respondents.  They, she submitted pithily, were only entitled to a fair trial and not to one which was unfair.  She had, in relation to this part of her submissions, directed my attention to the refusal of the Tribunal in Noorani, which was upheld, to grant witness orders in respect of a very large number of witnesses, to the decision of the Court of Appeal in Jaffrey to which I have already referred and to the decision of the European Court of Human Rights in Steele and Morris v United Kingdom [2005] ECHR 103, the well known “McLibel” case.  I do not, however, need to set out the passages in those important authorities to which I have been referred; for Mr Jeans’ position was that, in the abstract, such a long case was undesirable and unmanageable.  I have read the relevant pages in these authorities and of course accept and follow the principles which they set out.
  
59.	What in the circumstances of this case, as they are at present, was the alternative before the Chairman?  The Appellant’s proposal is that the Respondents must be required to focus their case and that, if they were to do so, 20 days would be sufficient for the trial.  However, she did not put forward any route by which the Respondents could or could reasonably be expected to achieve that end when, as at present, they have listed all the projects and proposals within the relevant time frame and do not know, in the case of any one of them, whether the Appellant wishes to challenge or not to challenge their case.  The position before the Chairman on 4 April was that:
1) The Court of Appeal had allowed the appeal against the decision of the Tribunal which was based only on an examination of a limited number of projects and proposals in the absence of a full schedule, which would have enabled the Appellant to concentrate on those projects and proposals which supported her case.  
2) The Respondents had accordingly produced such a schedule which, in respect of each project or proposal, set out the nature of their case as to allocation.
3) The Appellant was refusing to indicate, despite being ordered to do so and despite her acceptance that some of the projects and proposals of the schedule were irrelevant, which projects and proposals were or were not on her case in issue.
4) The Appellant was basing her refusal on the burden of proof which she maintained required the Respondents to prove that there was no discrimination in respect of each project or proposal or substantially in respect of the projects or proposals as a whole.  

60.	In that position it was, in my judgment, open to the chairman to make the trial directions which she made.  It was a permissible view, and I need not decide whether it was the right view, that in those circumstances an appropriate way or perhaps the only way in which justice could be done to the Respondents was to permit them to seek to explain as many of the allocations as they felt it necessary to explain. 

61.	The trial time allotted was based on the Respondents’ assessment of how many witnesses they need to call and could be got through in a day but was less overall then that put forward by the Respondents.  I have said before that it is common ground that, in truth, a trial of this scale is likely to be too long and unwieldy; but, as the Chairman no doubt perceived, the remedy lies to a substantial degree in the hands of the Appellant; for she was, before the Chairman, in a position in which, although she plainly does not wish to do so, she can by complying sensibly, in accordance with the spirit of the overriding objective that cases should be dealt with expeditiously and fairly, with the original order of 31 August, establish which projects and proposals are and which are not in issue and thereby reduce the length of the trial to one which is more manageable.  I have no doubt that the Chairman will wish to reconsider her trial directions when, if she does, the Appellant has undertaken that exercise and will also wish to consider identifying what groups of projects and proposals and what witnesses are to be dealt with at various stages of the trial, in groups or otherwise; but on the basis of the unusual circumstances which prevailed at the time of her decision I conclude that those directions represent an exercise of her case management discretion which was open to her and which is not susceptible to successful attack by way of appeal, having regarded the approach to such directions set out by the Court of Appeal in Noorani.  

Bias
62.	I turn finally to the freestanding ground of bias.  The Appellant submits that the Chairman’s actions and manner, applying the now well recognised test in Porter v Magill [2001] (UK) House of Lords 67, would, and the Appellant argues would inevitably, lead the reasonable and well informed observer to conclude that the Chairman had exhibited apparent bias against the Appellant.  The particulars of those alleged actions and of the Chairman’s alleged manner are set out in considerable detail in paragraph 15 of the Notice of Appeal; but in her affirmation in support of her case of bias the Appellant’s allegations were put forward on a somewhat narrower basis.  The particulars in the affirmation all relate to the hearing on 4 April; they are, again in summary and using my own numbers (for the affirmation has no paragraph numbers),:-

1) At the outset the Chairman appeared to be unaware of or to be ignoring or unprepared to deal with the correspondence from the Appellant, in particular her letter of 2 February 2007.  When the Appellant pointed that out to her, she appeared angered and turned to Mr Jeans who was then critical of the Appellant’s failure to comply with the order of 31 August 2006 and did not read or allow the appellant to explain the issues identified in the letter of 2 February 2007.  
2) Instead the Chairman took up the Respondents’ criticisms of the Appellant, did not accept her explanation that she had complied with the order or her reasons why she should not be required to do so.  The Appellant was stunned when the Chairman attacked her with a considerable degree of vim in relation to the position that she was adopting.  
3) When the Appellant pointed out that the Respondent had omitted that potentially a large number of relevant projects and proposals from her disclosure, which event I have already described, the Chairman’s reaction was to order her to list those projects and proposals.
4) In other respects set out in the affirmation the Chairman allowed herself to be distracted by counsel for the Respondents, dismissed the Appellant’s arguments aggressively and without full consideration and did not make orders as asked for by the Appellant but made instead the orders discussed in this judgment.  

63.	In oral argument before me the Appellant realistically accepted that the Chairman had a wide discretion in handling the hearing and in making case management decisions and that she could not claim bias simply because a series of decisions had been made against her.  There must, she agreed, be more; and the “more” on which she relied consisted of the following:

1) The Chairman had ordered the Appellant to make concessions so as to shorten the hearing while permitting the Respondents to add thirty items to their schedule thus prolonging the hearing.
2) The Chairman made an “unless order” against her while ignoring her complaint that the Respondents had failed to comply with disclosure orders, in particular in relation to the thirty new items.
3) The Chairman refused to order a pre-hearing review and did so on the basis of a case which was not that which the Appellant was advancing.
4) The Chairman ignored the Appellant’s complaint that the Respondents’ documents were in electronic form and made orders for photocopies.
5) Other matters as set out in the affirmation.

64.	Mr Jeans submitted that there was a central theme to the complaint of bias, namely that, in spite of the Appellant’s submissions, the Chairman had made decisions which were not those which the Appellant sought.  On a fair reading of the affirmation it does, indeed, plainly appear that the Appellant interprets a failure on the part of the Chairman to accept her arguments as an indication of bias.  It is, in my judgment, not arguable that there was an appearance of bias, or, to put it more accurately, that the reasonable and well informed independent observer would take the view that there was or might have been an appearance of bias.  If any of the orders made on 4 April were made in error of law, the correct course was, of course, to appeal against them as the Appellant has done, albeit unsuccessfully, before me.  There is no evidence, in my judgment, which could support the existence of an appearance of bias as arguably arising from the fact that the Appellant did not succeed in persuading the Chairman to her views or did not have as full an opportunity to address the Chairman as she might have desired. 

65.	At a case management discussion it is often necessary for the Chairman to ensure that matters are dealt with expeditiously, that time is not spent unreasonably and that proper progress is made.  It is from time to time necessary for a Chairman to be robust, to abbreviate discussion and to move forward; and I cannot see that the Appellant would, if there were detailed statements from counsel and solicitors present and comments from the Chairman pursuant to paragraph 11 of the Employment Appeal Tribunal Practice Direction, have any real prospect of establishing that the Chairman went beyond the appropriate bounds of her discretion in handling the proceedings before her.  I do not regard it as surprising and, more importantly, as any evidence of bias that the Chairman took up the Respondents’ criticism of the Appellant for failing to comply with the order of 31 August 2006 and acted with vim, to use the Appellant’s word, then or at other parts of the hearing.  That order had not been successfully appealed; it had not, as I have found, been complied with; and it was an order which the Chairman was entitled to see as fundamental to the appropriate progress of the litigation.  Nor do I see anything in the criticism that the chairman ordered the Appellant to make concessions to shorten the hearing but allowed the Respondents to lengthen it by adding 30 items to their schedules, when they have not complied with disclosure orders (if they have not).  Pursuant to the original case management order the schedules I have already referred to many times had been produced; they refer to over 800 projects and proposals.  The addition of a further 30 projects and proposals which had been subsequently discovered or regarded as material was not in any sense comparable with the important and serious failure on the part of the Appellant to comply with the order of 31 August.  This criticism is based on a false comparison.  

66.	As to the Chairman showing irritation at times during the hearing, that is likely to have been, no doubt, no more than a reaction to what was being said in front of her; a degree of irritation in the circumstances of this case is not to be taken as the beginning of evidence of apparent bias.  Judges are not barred from showing irritation or pleasure in the course of a hearing; and such a showing would not, in an ordinary way, be taken by a fair minded independent observer as beginning to demonstrate bias.  I have dealt earlier in this judgment with the substance of the criticism that the Chairman refused the application for a pre-hearing review.  I do not propose to go through the other items on which the Appellant relied in this already lengthy judgment.  I have considered them all and am wholly satisfied that there is nothing in them; and I have dealt with substantive matters which, she said, amounted to more than her concern that her submissions have not been accepted.  

67.	The true strength of the allegations of bias is, in my view, illustrated brightly by the Appellant’s points as to what happened when she told the Chairman that there was a large number of projects and proposals which had been omitted by the Respondents.  The Appellant complains that the Chairman reacted by saying that she would order her to produce a list of those projects and proposals (although I think I am right in saying that she did not, in fact, make such an order).  It seems very clear to me that the Chairman’s initial reaction, if it was as alleged by the Appellant, was wholly natural and could not possibly be regarded as evidence of bias by any fair minded observer.  The Chairman had just learned from the Appellant that, according to her, there existed outstanding projects and proposals which had not been scheduled.  There is no suggestion that the Respondents or the Chairman had any idea which projects or proposals were being referred to or how many there were.  I expect it might have been thought by the Appellant that the Respondents knew of but had been concealing them; but certainly there is no suggestion that the Chairman knew what they were.  Yet the Appellant regards the Chairman’s reaction, namely, asking her to provide a list, as evidence of bias.  The Chairman was, in my judgment, entitled to regard the provision of a list of those newly mentioned but unidentified projects and proposals, in the circumstances of this case, as an appropriate step; and any resistance to the provision of such a list might well have produced a show of irritation.  Whether that is so or not, the putting forward of this episode as evidence on bias reveals, in my judgment, the paucity of the Appellant’s case of bias.

68.	For these reasons I have concluded that the allegations of bias, taken at their highest, would not give rise to any reasonable prospect of success if canvassed at a full hearing.  Accordingly there is no need to treat this hearing as a preliminary hearing and to go any further through the procedure set out in paragraph 11 of the Practice Direction.  This is one of those cases in which the bias allegations do not pass the threshold for further progress.

Conclusions
69.	For the reasons I have set out in this judgment the appeal fails and is dismissed.