A Bansal-McNulty v Queens Park Rangers Football and Athletic Club Limited & Ors

In this appeal, the Appellant, the Claimant before the Tribunal, seeks to appeal against part of a Case Management decision of Employment Judge Brewer. That decision was made at London Central Employment Tribunal on 18 June 2024. The decision was sent to the parties on 21 June 2024. In this judgment, I refer to the Appellant and to the Respondents as “the Claimant” and “Respondents” as they appeared before the Tribunal.

The Claimant is a professional football player. He was contracted to play for the First Respondent, (“QPR”). The Claim Form sets out that he started playing for QPR when he was about 14 years old, progressing into the Under 18 squad and then into the Under 21 squad. He signed a contract with QPR on 28 May 2019. That contract was extended to the end of June 2022 and contained an option for further extension. During the term of that contract, the Claimant was loaned to play for the Third Respondent, Crawley Town Football Club (“Crawley Town”) for two periods of time: first from 31 August 2021 to 3 January 2022 and, from 31 January 2022 to the end of the season for that year, 22 May 2022.

It was common ground that, as set out in the particulars of the Claimant’s claim, the Second Respondent, (“JY”) was. during those times, either the manager or coach of Crawley Town. The Claimant alleges that during the period of his loan to Crawley Town, he was subjected to direct discrimination because of his race by JY. In his claim, the Claimant asserts that Crawley Town’s management, and QPR, were aware of racist comments/abuse to which he was subjected. The Claimant alleges that JY frequently told jokes whilst coaching the team, which he and the others considered to be offensive, including asserted jokes of a sexist, racist or homophobic nature. Although at times in the documents those comments have been described as “banter”, I prefer not to use that term.

The particulars of the Claimant’s claim contain specific allegations about that which the Claimant alleges JY stated. The Claimant asserts that he complained about JY’s comments to QPR, and about the abuse which he said he was subject to. He asserts that, from early April 2022 onwards, QPR and Crawley Town were aware of the comments being made and that the Claimant was complaining about them; that QPR and Crawley Town knew, or should have known, about the environment which JY’s actions created for him.

The Claimant asserts that QPR, and, possibly, Crawley Town had a duty to ensure that both JY and Crawley Town complied with their responsibilities under FIFA and UEFA, Professional Football Association and Premier League Rules and Codes of Practice insofar as those Codes of Practice and Rules prohibited inappropriate racial language and abuse. He asserts, further, that they had a duty to support those who were subject to conduct which contravened, or was likely to contravene, those Rules and Codes.

The Claimant alleges that he has been victimised by QPR and Crawley Town following the making of complaints about the conduct to which he was subject.

In early May 2022 the Football Association, (“FA”) announced that it would carry out an investigation into JY’s conduct. JY was investigated in respect of more than fifteen allegations. Subsequently, he admitted one and was found guilty of eleven others. It appears that some allegations may either have been deemed inadmissible, alternatively, not pursued by the FA.

The Claimant asserts that, later in 2022, he discovered that QPR had not exercised its option to extend its contract with him; further, that the loan contracted between the QPR and Crawley Town was terminated.

The Claimant asserts that in June 2022 he was contacted by four players who had previously been contracted to play for Crawley Town. They told him that they had made complaints to the FA about JY’s conduct. They asked the Claimant to support them, and to give evidence. On 14 June 2022 the Claimant provided a statement to the FA and subsequently gave evidence to the FA investigation. On 30 June 2022 the Claimant’s contract with the First Respondent ended.

The chronology of events, therefore, was that the incidents the Claimant asserted that he was subject to, and which he alleges constituted direct discrimination or harassment, were alleged to have occurred between 2021 to March 2022. The FA investigation was announced on 4 May 2022. JY’s employment with Crawley Town was terminated on 6 May 2022. The Claimant gave evidence to the FA investigation on 15 November 2022. The outcome of the FA procedure was published on 25 November 2022.

The Claimant, as I have set out, has made claims of race discrimination and victimisation. He claims compensation for discrimination: a claim for loss of earnings, an award for injury to feelings, aggravated damages and compensation for personal injury, a psychiatric injury, he contends he has sustained in consequence of the Respondents’ actions.

In a report which was published in November 2022, the FA Regulatory Commission found that JY was in breach of rules IE 3.1 and IE 3.2 of the Football Association Rules (“FA Rules”). So far as relevant, those Rules provide as follows:

“Rule 3.1:

“A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of... abusive... or insulting words or behaviour.”

Rule 3.2 :

“A breach of rule E3 (1) is an ‘Aggravated Breach’ where it includes a reference, whether express or implied, to any one or more of the following: – ethnic origin, colour, race, nationality, religion or belief...”

JY denies the allegations made against him. QPR state that it operates, and employs players, under strict regulatory constraints which are set out in FIFA (Federation Internationale de Football Association) and UEFA (Union of European Football Association), FA and EFL (English Football League) Rules. Those regulations include FIFA’s Regulations on the Status and Transfer of players, UEFA Financial Fair Play Regulations, the Rules of the FFA Association, the FA Rules and Disciplinary Regulations and EFL Regulations.

QPR state that any contract between it and a player, including the Claimant, is issued by the EFL and the FA Premier League in standard terms, from which it cannot deviate, except where expressly allowed to do so by EFL. It states that the standard contract and Regulations are the result of years of collective bargaining between those bodies, member football clubs and associations, participants and unions. The Respondent sets out its commitment to equal opportunities and to recruiting and supporting staff and players from diverse backgrounds and gives examples of steps it has taken.

QPR denies that there is any obligation or responsibility upon it (i) to ensure that the JY or Crawley Town complied with FIFA, UEFA, PFA, FA or Premier League rules not to expose the Claimant to what it describes as “racial banter”; (ii) to take steps to contact JY to direct him not to use racist language; or, (iii) to control or report JY’s or Crawley Town’s actions in respect of racial language used, or any other forms of discrimination.

Further, QPR deny that the Claimant raised complaints of discrimination to them and deny that he had undertaken a protected act for the purposes of his claim of victimisation.

There is clearly a live issue in the case as to the extent to which QPR was aware of the language that the Claimant asserts was used by JY. The Claimant asserts that they were so aware, and for two reasons: first, because of reports he made to QPR; and, secondly, because JY’s use of inappropriate and offensive language was so prolific that the QPR and Crawley Town knew, or were likely to have known about it, or, alternatively, should have done so.

Crawley Town state that it dismissed JY on 6 May 2022. The club state that it assisted the FA in its prosecution of the allegations against JY before the disciplinary panel through one of its officers who gave evidence at the hearing. It accepts that some of the allegations within the investigation which was undertaken included allegations made by the Claimant. They give some detail about some of the charges that were dropped by the FA. They set out that no charges were brought against Crawly Town (or JY) for acting in retaliation against any of the named five players who made complaints.

The decision which is subject to appeal was made by Employment Judge Brewer who heard submissions over two days, 17 and 18 June 2024. There were a significant number of applications before the Judge. Those included: the application which is the subject of this appeal, that JY should disclose documents obtained during the course of the FA disciplinary investigation; applications for non-party disclosure against, in particular, the telephone networks EE and Vodafone in respect of calls that were said to have been made to members of staff within QPR by the Claimant regarding the abuse he asserted he was subject to; disclosure applications against QPR regarding documents relevant to remedy; an application for costs relating to a previous Preliminary Hearing; an application against Vodafone in respect of JY’s call records; an application that JY disclose mobile diary records; an application against JY regarding documents relevant to compensation and remedy; an application against Crawley Town regarding evidence and documents obtained through a report prepared by a consultant instructed by Crawley Town to investigate allegations of racism; and, an application for disclosure of the Claimant’s incoming calls to his EE account between August 2021 to December 2022. That is a significant number of applications, requiring consideration of different legal principles. There was also a large volume of documents before the Employment Judge running to approximately 1,500 pages. I have considerable sympathy for the task faced by the Judge in determining these contested, complex, and at some points, overlapping, applications. the only application which is before this Appeal Tribunal is the Judge’s decision regarding the Claimant’s application that the Second Respondent should disclose documents obtained and used during the course of the FA disciplinary investigation, described as ‘the FA bundle’. It is considerably easier for this Tribunal to consider the issues raised by this appeal, free from other issues, than it was for the Judge who was required to consider, not just this application, but the other issues raised by the other applications, under pressure of time, and no doubt with other work in the background.

The applications were considered in an open Preliminary Hearing. The Tribunal heard submissions from counsel for the Claimant, counsel for QPR and JY and submissions from a co-owner of Crawley Town, Mr Patel.

The claims before the Tribunal concerned allegations of race discrimination, harassment related to race, and victimisation. It is clear that the Tribunal, when determining those claims, would be required, in due course, to consider evidence about what was said, to whom, in respect of the specific allegations made, and, to consider evidence about what was known by QPR and Crawley Town. Those matters were clearly disputed issues in the litigation.

A number of orders for disclosure had been made during the course of proceedings. On 10 August 2023 a Case Management Order was made by Employment Judge Tinnion. That Order stated, at paragraph 15, that the Claimant, and each Respondent, must disclose documents which related to liability, compensation or remedy which either, they relied on, or, were inconsistent with, or hurt, that party’s case.

On 20 November 2023 the deadline for completion of disclosure was varied by a Case Management order of Employment Judge Sutton KC. That Order stated, at 10(a), that, by 4pm on 14 December 2023, all parties “shall” send each other a numbered list of documents they were disclosing, together with copies of those documents. That deadline was subsequently extended until 4pm on 12 January 2024.

The EAT was informed that during that time period the Claimant was considering making applications for disclosure against non-parties, and, in particular, against the FA regarding documents from their investigation. However, on 13 March 2024 the FA informed the Claimant that JY actually had a copy of the FA bundle. The letter stated as follows:

“It is a standard Employment Tribunal direction that a party to the employment Tribunal proceedings must disclose all documents in that party’s possession, custody or control that are relevant to the issues in the claim to be determined by the Employment Tribunal. As such, it is plainly not appropriate to make an application for third party disclosure where a party to the Employment Tribunal’s proceedings has documents in its possession that are alleged to be relevant. If there is any argument about relevance of the document in a party’s possession, that is a matter for the Tribunal and parties, not any third party, including The FA.”

On 14 March 2024 the Claimant sought disclosure of the FA Disciplinary Commission bundle from JY. At the fifth Preliminary Hearing, which took place on 18 April 2024, JY informed the Claimant, for the first time, that he had a copy of the FA bundle. At that point, and despite the Order of the Tribunal set out above, JY had not taken any steps towards disclosure of those documents: he had not said that a bundle of documents existed, nor had he said what documents were within the bundle. To date, he still has not done so. The Claimant knows only that there is a bundle of documents which were considered as part of the FA Disciplinary Commission process. He does not know what documents are contained within that bundle. Submissions regarding the contents of the bundle have been made on the basis of what is assumed, or presumed, to be in the bundle.

After receipt of the FA letter, the Claimant made an application against the Second Respondent for specific disclosure in respect of, amongst other matters, that FA Disciplinary Commission bundle/ FA bundle. In the statement supporting that application, the solicitor acting for the Claimant stated as follows:

“The FA has highlighted that the Claimant can obtain the bundle from R2. R2 failed to disclose the fact that he had a copy of the bundle until the day of the fifth preliminary hearing on 18 April 2024. This is an abuse of the process and has added to cost. The bundle is obviously relevant and covers the allegations of racist abuse by R2 of the Claimant and others. It is important evidence that the Tribunal should have sight of and consider at the liability hearing.”

It was against that background that the application was considered by Employment Judge Brewer during the open Preliminary Hearing which took place on 13 and 18 June 2024. Counsel for the Claimant, QPR and JY had prepared written submissions for that hearing. Whilst I recognise that the rules in the Civil Procedure Rules (CPR) do not apply in Tribunals, in the same way as they do in civil litigation, (see by way of example, Harris v Academies Enterprise Trust and others UKEAT/0097/14) given the submissions I have heard, I consider it necessary to record that it appears that no application was made by the JY to withhold disclosure at that hearing. Further, no application has been made by the Second Respondent to the FA seeking their agreement to disclosure the bundle which was in his possession if he considered that he should not disclose it (properly so called, as to which see paragraphs 31-2 below) in the tribunal proceedings, or provide copies of documents in it during those proceedings. (See the provisions in CPR 31.22 and paragraph 34 below).

In his decision, the Employment Judge set out in summary relevant legal principles at paragraph 6 of the Case Management summary as follows:

“As to the law, there is essentially agreement on what the law says, and I do not consider it necessary for me to repeat what the parties agree are the legal principles I must apply. I have referred therefore only to key decisions only when absolutely necessary. Having said that, it is useful to set out the following general propositions:

6.1.

Non-party disclosure is dealt with in the Civil Procedure Rules (CPR),

6.2.

Disclosure against third parties should be regarded as the exception rather than the rule and not simply ordered by way of routine. (See for example, Frankson v Secretary of State for the Home Department [2003] EWCA Civ 665, [2003] 1 WLR 1952,

6.3

In relation to specific disclosure and equally applicable whether party or non-party disclosure is sought, there are three stages of consideration,

6.3.1.

First, the document must be relevant in that the applicant shows that the document is “likely” to support or adversely affect the case of one or other party, where “likely” means “may well”,

6.3.2.

Second, the disclosure must be necessary in order to dispose fairly of the claim or to save costs, and

6.3.3.

Third, if the first two hurdles are overcome, there is a residual discretion to decline or grant the application based on broader considerations such as public interest, confidentiality, privacy etc,

6.4.

The Tribunal must be satisfied that the documents sought exist (per Howglen Ltd [2001] 1 All ER 376, although arguably the question is whether the third party is likely to have the documents in its possession, custody or power (See Pride Valley Foods Ltd v Hall & Partner (Contract Management) Ltd unreported, HC QBD, 8 May 2002)..”

The Judge’s conclusions in respect of the application for disclosure of the disciplinary investigation’s proceedings bundle are set out in paragraphs 37 to 48 of the judgment:

“37.

One of the difficulties with this application is that the claimant does not set out what the documents are which are contained in the description used by the parties, “the FA Bundle”. It was not asserted that every document which comprised the “documents obtained by the FA Disciplinary Investigation that were used in the FA Disciplinary proceedings” were relevant to the issues in these proceedings.

38.

I accept the basic principle from Conlan v Simms [2006] EWCA Civ 1749 that the findings of one court or tribunal are inadmissible as prima facie evidence of, as it was in that case, the defendant’s dishonesty. The Court of Appeal went on to hold that a party found guilty by one court has the right, in another court, to put his accuser to proof of their case. The argument put forward by Mr Buchan in oral submissions amounted to this: because the FA Disciplinary Commission found [1298 – 1321] that the claimant made some of the comments he was alleged to have made (but importantly not all of the comments he was alleged to have made) and describe them as racist, the case of race discrimination in the present case is essentially made out. Thus, the FA Bundle is relevant.

39.

That not only flies in the face of Conlan (above), but it is also in my view a flawed argument. It may appear obvious that if a person says something adjudged to be “racist” that person must also have committed the statutory tort of race discrimination, but there is a significant difference between a finding that language was used which may be described as racist, as the FA Disciplinary Commission did, and findings as to whether they amounted to race discrimination for the purposes of the Equality Act 2010 which requires a wider investigation, findings of fact and the application of the law to those facts than seems to me to be necessary for a disciplinary hearing, where the mere utterance of what is described as racist language would, in my experience lead inevitably to a finding that the accused had committed an act of misconduct.

40.

This is of course an application for non-party disclosure and the FA have made it clear that they will not disclose documents without a court order.

41.

It is in that context, and as something of an aside, albeit an important one, I express the concern that the claimant has pleaded facts derived from the FA’s disciplinary case and seeks to rely on them in the present proceedings. That seems to me to be contrary to Conlan and, although I hesitate to invite yet further satellite hearings in this case, it may be that this is a matter which would need to be fully and aired and determined definitively perhaps once there is a final bundle and witness statements have been exchanged.

42.

Turning back to this application, I repeat the points made at paragraph 6.3 above in relation to the requirements for non-party specific disclosure.

43.

We know the documents exist; they are part of the FA Bundle. The key issues are collateral use, relevance and necessity.

44.

Having heard Mr Buchan further on this application it seems to me that he narrowed the scope of the application so that he now seeks only the witness evidence gathered by the investigation and not all documents gathered as part of the FA’s investigation.

45.

Mr Buchan’s view on relevance was not easy to follow. He said that he intended to call all the witnesses who provided witness evidence to the FA’s investigation. If that is the case, then as they would be giving live evidence to the Tribunal the need for disclosure of their previous witness statements cannot, it seems to me to be necessary. Countering this, Mr Buchan argued that a witness might give different evidence to the Tribunal that was given to the FA investigation. That is always a possibility, but as these would be the claimant’s witnesses the claimant will have to deal with that possibility, it is not a reason why the prior witness statements made for a different purpose in a different jurisdiction are either relevant or necessary as proof of any of the claimant’s allegations in this case. It seems to me that the application in this respect amounts to the claimant saying that he cannot trust that the witnesses will give the same evidence in Tribunal that they gave to the FA and so to avoid that problem they should use, or at least there should be available, their previous witness statements. But that does not in my view meet either of the requirements of relevance and necessity. The fact is that witnesses will be proofed by the claimant’s solicitor, and witness statements drafted by/for them as part of the Tribunal process, and so knowledge of what they said in another set of proceedings is not necessary.

46.

Mr Buchan was then a little unclear about the position of live witness evidence because he went on to say that one witness (R3’s Chaplain) refused to appear voluntarily for the claimant, and so the claimant would be seeking a witness order against him, and the claimant could not trace another of the witnesses from which I conclude that in fact not all of the witnesses whose evidence was before the FA will or may be appearing for the claimant in the present case. As I pointed out, if that was the case then the use of an absent witness’s witness statement given to another body for a different purpose and which could not be cross-examined in Tribunal would carry no weight in the Tribunal in any event, and ordering disclosure on that basis is not possible as disclosure in such circumstances could be neither relevant nor necessary.

47.

I note that the claimant has, of necessity, a copy of the relevant FA documents. I say of necessity because of course he was the accused and therefore needed to see the case against him so that he could defend himself. But he equally is not at liberty to use those documents without meeting the requirements for non-party disclosure and the requirements for collateral use in CPR 31.22. In this context I accept the forceful submission of Mr Johnston that even if disclosure was ordered, inspecting, and using the documents as part of the proceedings is a distinct step (possibly two distinct steps) and require one of the exceptions in CPR 31.22 to apply. R2 is subject to these restrictions along with the other parties in this case.

48.

For all those reasons I refuse this application.”

I turn now to the relevant legal principles. It is in my judgment appropriate to begin by setting out a passage from the decision in Science Research Council v Nassé[1979] IRLR 465 which was subsequently quoted in the decision of Canadian Bank of Commerce v Beck [2009] IRLR 740. The Nassédecision was a decision from 1979, referring to legislation which is now no longer in force. The principle, however, in my judgment is still good. Lord Salmon stated that Parliament had not intended to deprive litigants, claimants in the employment tribunal, who make an allegation of discrimination of any of the facilities enjoyed by ordinary litigants suing for damages in tort in other courts. He stated as follows:

“One of the most useful of these facilities is the right in certain circumstances to obtain an order for discovery and inspection of documents. This right is of particular importance in cases of alleged discriminations such as the present for it is the employer alone who will ordinarily be in possession of the documents likely to throw light upon the question as to whether or not the employer has unlawfully discriminated against the complainant.”

He continued:

“The only way of testing the accuracy of the employer’s answers may often be by comparing them with the reports and records in their possession. The statutory machinery for obtaining early information from employers was not in my view intended to be a substitute for but in addition to the complainant’s right to discovery and inspection of documents.”…

“The law has always recognised that it is of the greatest importance from the point of view of public policy that proceedings in the courts or before tribunals should be fairly disposed of. This no doubt is why the law has never accorded privilege against discovery and inspection to confidential documents which are necessary for fairly disposing of proceedings. What does ‘necessary’ in this context mean? It of course includes the case where the party applying for an order for discovery and/or inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order but it is not confined to such cases. Suppose, for example, a man had a slim chance of success without inspection of documents but a very strong chance of success with inspection. Surely, the procedure could not be regarded as fairly disposed of were he to be denied inspection.”

Having set that passage out, the Court of Appeal in Canadian Bank of Commerce v Beck set out the following uncontroversial proposition:

“In our judgment, the law on disclosure of documents is very clear and of universal application. The test is whether or not an order for discovery is necessary for fairly disposing of the proceedings. Relevance is a factor but is not of itself sufficient to warrant the making of the order. The document must be of such relevance that disclosure is necessary for the fair disposal of the proceedings. Equally, confidentiality is not of itself sufficient to warrant the refusal of an order and does not render documents immune from disclosure. Fishing expeditions, however, are impermissible.”

In Birmingham City Council v Bagshaw[2017] ICR, at page 273, the test which is applicable to applications for disclosure was set out. That, in turn, had been extracted from the decision of Eady J in Flood v Times Newspaper Limited [2009] EMLR 18 (paragraph 23):

“The first requirement is that any document sought must be shown to be likely to support or adversely affect the case of one or other party. Thus the question to be asked in each case is whether they are likely to help one side or the other. The word ‘likely’ in this context has been considered in the Court of Appeal and is taken to mean that the document or documents may well assist.

Secondly, the hurdle must be overcome of demonstrating that the disclosure of documents sought is necessary in order to dispose fairly of the claim or to save costs. This only arises for consideration if the first hurdle has been surmounted.

Unless the documents are relevant in that sense, it is not necessary to address the test of necessity. Thirdly, there is a residual discretion on the part of the court whether or not to make such an order even if the first two hurdles have been overcome. It is at this third stage that broader considerations come into play such as where the public interest lies and whether or not disclosure would infringe third party rights in relation to, for example, privacy or confidentiality. If so, the court must conduct a careful balancing exercise.”

The provisions regarding disclosure are currently set out in rule 33 of the Employment Tribunal’s Rules and Procedures 2024. That rule provides that a Tribunal may order any person in Great Britain to disclose documents or information to a party or to allow a party to inspect such material as might be ordered by the County Court. At the time of the hearing before the Tribunal, that provision was set out in the materially similar provision in rule 31 of the Employment Tribunal Procedural Rules 2013.

Disclosure in the County Court is governed by CPR Part 31. CPR 31.1 provides that Part 31 sets out rules about disclosure and inspection of documents. CPR 31.2 sets out the meaning of the term “disclosure”. That is as follows:

“A party discloses a document by stating that the document exists or has existed.”

It is, in my judgment, important to note that disclosure, properly so-called, does not mean that a party has a right to inspect the document or to a copy of it nor, indeed, to admit it into evidence in proceedings. In this regard, as set out in SmithKline Beecham Plc v Generics [2004] 1 WLR 1479, at paragraph 29 per Aldous LJ in the Court of Appeal, “no distinction” is to be drawn between documents obtained from third parties and “no limitation is placed on the way that that statement is made”.

The provisions in CPR Part 31 and, indeed, in the Employment Tribunal Rules must be read in the light of the overriding objective set out in both rule 1.1 of the CPR and in rule 1 of the Employment Tribunal Rules. Not only should the Court apply the relevant rules to further the objective, the parties must also help the Court or Tribunal in that endeavour. See, for example, CPR 1.2. There is a duty, a responsibility, upon parties, in my judgment, to both only seek discovery when it is justifiable and proportionate, and to cooperate in giving discovery in response to reasonable requests. In particular, it is important to keep in mind the duty to minimise costs which is likely to be best achieved through a cooperative, constructive and sensible approache to disclosure. The Court must encourage and support that by appropriate orders as necessary.

CPR r.31.3 sets out the right of a party to inspect disclosed documents. The obligation upon parties to provide standard disclosure is set out in r.31.6. That requires parties to disclose only documents on which they rely or documents which adversely affect their case or affect another party’s case or support another party’s case. Standard disclosure is to be made in accordance with CPR r.31.10 requiring, in addition, a disclosure statement.

One part of Part 31 contains provisions enabling parties to make an application to withhold inspection or disclosure of documents pursuant to CPR r.31.22. That sets out a statutory enactment in respect of civil court proceedings of the common law implied undertaking which applied when documents were disclosed to an individual, not to use those documents which were disclosed in the course of civil court proceedings, save for the purpose of the proceedings in which they were disclosed without the Court’s permission or the consent of the document owner. CPR 31.22 provides as follows:

I now turn to the grounds of appeal. Three grounds of appeal were advanced which can, as submitted by the Respondent, be dealt with conveniently as two. The first was that the Judge erred in failing to apply the correct test for specific disclosure; secondly, that the Judge applied the test for non-party disclosure or collateral use; and, thirdly, that the Judge’s decision was perverse.

On behalf of the Claimant, it was submitted that, still to this day, he does not know what documents are within the FA bundle. It was submitted that the Tribunal had failed to properly appreciate that fact as, for example, evidenced by paragraph 37 in the decision and the passage which noted that one of the difficulties with the application was that the Claimant did not set out what the documents are which are contained in the FA bundle. It was submitted that the Claimant could not identify documents precisely because no disclosure, properly so-called had taken place, in relation to them.

At the hearing before the Judge, it was submitted that the Respondent’s counsel had stated that, if the complainant said anything in evidence which was inconsistent with evidence given to the FA, then the Second Respondent would apply to adduce that evidence. It was submitted by the Claimant that this proposal was unfair and impractical. If it were adopted, it would put the Second Respondent at an unfair advantage compared to the Claimant. Further, it was submitted that witnesses should be permitted to refresh their memory from their previous statements, and, it was submitted that the Tribunal had clearly misunderstood the nature of the application, appearing to consider that it was an application against a non-party. This, it was submitted, was clear from the language used by the Judge and, further, that the Judge had expected that the Claimant identify the relevant documents. It was accepted that the Claimant had made an alternative or further submission that, even if the whole bundle were not to be disclosed, then at least the statements of the three other players who had consented to their statements being admitted in evidence should be disclosed. Further, it was submitted that the bundle should be disclosed because it was likely to save expense. It was submitted that the FA had clearly undertaken extensive investigation preparing relevant documents and that there were cogent arguments why it would be inappropriate and unnecessary to put the Claimant to additional costs of redoing that work when relevant documents were likely already to exist.

It was submitted that the provisions of CPR 31.22 should not automatically be read across to the FA’s disciplinary panel which it was submitted was not a civil court. It was submitted that the provisions of CPR r.31.22 applied in the context of civil proceedings and that the proceedings before the FA were not of that nature or similar nature. Alternatively, it was submitted that, in any event, the Court could give permission for the documents which had been provided by the FA to be used within the Tribunal proceedings or at least disclosed within the Tribunal proceedings, particularly given that some of the factual allegations were so closely interlinked and that there was likely to be an overlap with relevant documentation.

It was submitted that the provisions of CPR 31.22 provide an important safety valve for courts and tribunals to give permission for documents disclosed in proceedings to be used for other purposes where the circumstances justified that.

In respect of the proposition relied upon in Phipson on Evidence27-42 concerning when leave may be given for material disclosed in proceedings to be used for collateral purposes, it was submitted that there were cogent and persuasive reasons for permission to be given. In particular, that there was a strong public interest in facilitating the just resolution of civil litigation; that the documents were relevant and necessary in the interests of a fair trial; that they had been used in quasi-judicial proceedings previously regarding some of the same issues, similar facts and against the same people involved in this case. It was also submitted that the documents in the FA bundle were likely to contain ‘best evidence’ as it was evidence that was obtained closer in time to the event with which the Tribunal will be concerned. It was submitted that the FA were independent investigators and that the document should be disclosed.

I was invited to consider a passage in Phipson on Evidence which stated that, in cases where an issue about disclosure regarding documents under 31.22 was concerned, focus should be drawn to the Court’s concern to do justice and to avoid a miscarriage of justice.

The Second Respondent submitted that the documents and the factual findings in the FA Disciplinary Commission proceedings were not binding on the Tribunal. Indeed, they were not even admissible as evidence of the facts found by that body, nor were some of the documents relevant to some of those conclusions. In that regard, the Second Respondent relied upon the decision in Conlon v Simms [2008] 1 WLR 484, CA and Hollington v Hewthorn [1943] 1 KB 586.

It was submitted that although the Judge may have inadvertently referred to the disclosure application as one being against a ‘non-party’, adopting a fair reading of the judgment as a whole as, the EAT is required to do, and in context, it was clear that the Judge was aware that he was dealing with an application for specific disclosure against a party, namely, the Second Respondent. Further, it was submitted that although the Judge may not have considered the specific requirements of disclosure, the Judge had addressed and determined the key issue: namely, the test of relevance and necessity as set out in the Flooddecision.

I was also drawn to the summary of relevant principles by Linden J in Santander UK Plc v Bharaj [2021] ICR 580, EAT. and, in particular, that in this case what the Judge did was appropriately identify that the disclosure of documents was not necessary for the fair disposal of the proceedings. In submissions, counsel for the Second Respondent accepted that the Judge had not considered whether disclosure of the documents was necessary to minimise costs. It was submitted that, although the Judge had made reference to disclosure against third parties being the exception rather than the rule, on a fair reading, it was clear that that was not the higher standard or the standard to which the Judge determined the application. Furthermore, it was submitted that the Judge had made references to the requirements or prohibition on collateral use in CPR r.31.22.

It was submitted that the Respondent’s position was that the documents contained within the bundle were subject to the collateral use prohibition and associated provisions set out in CPR r.31.22 and r.32.12 and that he was not at liberty to comply with any disclosure obligation in relation to those documents, unless one of the exceptions applies. He stated that, to that end, he had done all that he could, namely disclose a copy of his own notes of his own interview with the FA investigation and a copy of the notes of the Claimant’s interview.

It was submitted that, even if the Second Respondent’s understanding of the position regarding collateral use was incorrect, no injustice had occurred because the Employment Judge had, in any event, considered that the documents sought to be disclosed were not relevant or necessary for the fair disposal of the proceedings. It was submitted that the Judge did not err in terms of his acknowledgement of relevance being a factor which was to be considered but that, ultimately, the test was one of necessity.

It was submitted that the Judge was entitled to state that the Claimant had not asserted which documents were relevant or potentially relevant and that had been as part of the Judge’s responsibility to prevent impermissible fishing expeditions and that the Judge did not improperly require the Claimant to identify all the documents. Rather, he had simply sought to identify documents or classes of the documents which the Claimant had anticipated would be necessary for disclosure for the fair and just disposal of the proceedings.

It was submitted that the fact that some witnesses had consented to disclosure was wholly irrelevant. The question was not about consent. It was one of necessity for the fair disposal and that the fact that a witness had consented did not affect that conclusion.

I allow the appeal.

As set out above, I have some considerable sympathy with the Employment Judge. There was a number of applications before him at the preliminary hearing and a large volume of documents. The circumstances in which the existence of the FA bundle and, its possession by the Second Respondent, came to light are likely, in my judgment, to have made consideration of, and focus upon the real issues in this application to be less clear than they might otherwise have been.

Once a tribunal has made an order for disclosure as the Tribunal did in these proceedings on 10 August 2023, there was a responsibility upon all parties to comply with that Order. That Order, albeit in slightly different language, set out that which is required by disclosure within County Court proceedings, namely, that Respondents and Claimants each had to inform the other parties of the existence of any documents in their possession or control which:

In my judgment, that required the parties to consider carefully whether they had in their possession any documents which might well have supported theirs or another’s case or which might well have adversely affected theirs or another’s case. Surprisingly, it was accepted during submissions that that exercise had simply not been undertaken by the Second Respondent. There was, in my judgment, no explanation as to why there had not been compliance with the Tribunal’s direction and Order in that regard. Absent variation of them, or a successful appeal, orders made in Tribunals and Courts should be complied with. That is an important part of the effective administration of justice. Courts and Tribunals must, rightly, in my judgment, be vigilant in ensuring compliance with their orders.

It is, in my judgment, evident that when considering a party’s duty in respect of disclosure, that must be done in the context of the issues raised within the litigation. In my judgment, in this case, even a cursory consideration of those issues would make it plain that the issues included the following: whether or not the Second Respondent had said the things which the Claimant alleged he said; whether the Claimant had complained about those matters to the First, Second or Third Respondent; whether the Second Respondent’s use of language was so widespread that it was known of within the First and/or the Third Respondent. Other issues relate to the extent to which the First or Third Respondent had duties to players contracted to them or to another to protect or support them from the use of inappropriate language related to protected characteristics. That may lead to factual issues as to whether, and if so how, any steps were taken in respect of that which the Claimant had raised.

In my judgment, the Employment Judge erred in his approach to and application of the relevant legal principles which he was required to consider in respect of this particular application for disclosure made by the Claimant. I accept that he set out appropriate legal principles in paragraph 6 of his judgment. However, in my judgment, he subsequently failed to apply those principles in his analysis in paragraphs 37 to 38. On a fair reading of the Judgment as a whole, I am unclear whether he considered he was addressing an application against a third party or not and whether there was some degree of confusion or conflation with other applications before him for disclosure against non-parties.

The fact that the Second Respondent had not complied with the primary duty for disclosure may not have assisted in the Tribunal’s analysis. Equally, the fact that the Second Respondent had not, for example, sought to make an application to be exempt from disclosure in may also not have assisted.

It is, in my judgment, clear from the Tribunal’s analysis that the Judge simply did not consider, as a preliminary step, whether any of the documents which the Claimant sought disclosure of were likely to support or adversely affect the case of any of the parties, as he was required to do by the decision in Bagshaw and Flood (see paragraph 29 above). Significantly, he appeared to criticise the Claimant for failing to identify which documents were relevant. He did not expressly, nor, in my judgment, implicitly, recognise or acknowledge the fact that as at the date of the hearing the Claimant knew only that the Second Respondent had a bundle in his possession. He did not nor could he know what was within that bundle but he knew that it contained documents regarding an investigation into the same/similar complaints he was raising before the Tribunal. The Judge did not identify a primary failure by JY in respect of disclosure.

The Judge proceeded to determine whether or not disclosure was necessary in order to fairly dispose of the claim or save costs. That was the second step in the three step process identified in the Flood. In my judgment, however, it was only possible to properly consider that issue once the first hurdle identified in that case had been surmounted: self-evidently, unless documents are relevant in the sense established by the requirements of disclosure, there is no need to test necessity. Conversely, unless there has been an assessment of whether or not the document is likely to support or adversely affect the case of one or other party to the litigation, the question of whether or not disclosure of the documents was necessary to fairly and properly dispose of the proceedings simply cannot be undertaken. It is not possible to determine whether a document needs to be disclosed for that purpose if there has not been at least some focus on what the document is and whether or not it may impact parties’ cases in the litigation. The Judge, in my judgment, missed that essential step.

In addition, the Judge failed to consider a point which had been raised by the Claimant in submissions: namely, that the documents may well have been relevant to the question of saving expense and costs. Part of the overriding objective requires tribunals to have regard to the need to deal with cases fairly and justly, including so far as practicable ensuring that parties are on an equal footing having regard to proportionality, avoiding unnecessary formality, seeking flexibility and saving expense. As is often the case in tribunals, where an individual is bringing a claim against a large organisation, questions regarding expense, proportionality and likely resources form an important part of ensuring, so far as practicable, that a party is on an equal footing.

Therefore, I consider that the Judge erred in his application of and consideration of the relevant principles. First, it is not clear that the Judge was aware that he was dealing with an application as against a party to the litigation (as opposed to a non-party) and, in circumstances where (a) there had been no application to be exempt from disclosure and, (b) where there had been a failure to disclose documents, contrary to the Tribunal’s Order. Secondly, although the Judge stated the correct legal principles, he then omitted to consider the first of three required considerations. Thirdly, the Judge failed to consider an argument advanced by the Claimant.

I then turn to the issue of collateral use and the provisions of CPR 31.22. The Second Respondent failed to comply with the most basic requirement for disclosure: the Second Respondent did not state that he had the bundle, that it was in existence and in his possession. He did not identify, and has not identified, the documents within that bundle. He has not sought permission to be granted for him to disclose the documents. He appeared not to make that application to the Tribunal nor, indeed, sought the agreement of the FA authorities.

Listing documents in order to identify them, may well constitute use of that document (within the meaning of those terms in CPR 31.22). In my judgment, however, that is not the pivotal point, for the following reasons. First, I do not accept that proceedings before the FA or other football authorities equate to court proceedings or civil proceedings within the scope of CPR 31.22. I do not, therefore, necessarily consider that the principle in that provision applied. That rule seeks to embody the common law principle that documents disclosed in civil court proceedings should not be used for other proceedings unless permission was given or other exemptions applied. Proceedings in my judgment before the FA are not civil court proceedings. Even if, however, they do come within the category of cases to which that rule applies, the rule is not absolute. The Tribunal could have considered whether there was a need to give permission for disclosure or, alternatively, for directions to be made so that such an application could have been made to the FA authorities. Ultimately, what the Tribunal was required to do was to deal with the applications before it justly in accordance with both the CPR and the Employment Tribunal Rules.

Properly, in my judgment, it should have been for the Second Respondent to consider this matter as part of his duty in respect of disclosure. I repeat the points I made about the duty upon litigants to proceedings, including litigation regarding discrimination, a matter which it is known can be difficult to prove, to act cooperatively and collaboratively in the exercise of disclosure.

In conclusion, I consider that the appeal should be allowed and, having considered again the grounds of appeal, I consider that the Judge erred in the application of the relevant legal principles. Furthermore, I consider that this decision was one which no reasonable Tribunal properly directing themselves could have reached. Finally, I now invite further submissions as disposal.