The employment tribunal routinely makes case management orders directing that the parties agree the contents of the bundle to be produced for trial. However, on occasion, disputes arise between parties as to which documents should be included in the bundle. Frequently, the source of the dispute is an unrepresented claimant’s insistence that extensive documentation of no relevance to the legal issues be included in the bundle. Often, the most pragmatic and proportionate solution is to simply include all of the documents on which the claimant seeks to rely.
Where the volume of irrelevant material threatens to make the bundle unwieldy, it may be appropriate to adopt a compromise position of creating an agreed bundle and inviting the party seeking to rely on irrelevant material to produce their own supplementary bundle of documents not included in the agreed bundle. This approach avoids appearing unduly obstructive, whilst clearly identifying to the tribunal those documents which are considered to be irrelevant. Where the supplementary bundle is large, the tribunal is likely to be particularly appreciative that this approach has been taken.
Occasionally, there will be particular irrelevant material which is so sensitive or prejudicial to a party’s interests that the party will wish to exclude them from admission altogether. In order to do so, the party will need to make an application to exclude the documents. It is normally quite difficult to persuade a tribunal to exclude documents from consideration altogether and the tribunal’s preferred approach will very often be to admit the material and give it the appropriate (limited) weight.
A party wishing to exclude material will need to make a tactical decision as to whether to make an application to exclude the material either:
- At a preliminary hearing; or
- On the first day of trial.
There is an obvious advantage to knowing in advance what material will be considered by the tribunal at a full merits hearing so that additional evidence can be produced if necessary. In addition, clients will be particularly keen to know prior to trial whether sensitive material is likely to be admitted or not.
There are, however, a number of disadvantages to seeking to determine any application at a preliminary hearing. First, there is a real risk that the judge will simply refuse to give a determination at a preliminary hearing on the basis that relevance is best determined by the tribunal hearing the case (see Beazer Homes Ltd v Stroude [2005] EWCA Civ 265 at para 9, per Mummery LJ). Second, even if the tribunal grants the application to exclude evidence at a preliminary hearing, that may not be the end of the matter. Where a party is unrepresented, they may well attempt to revisit the decision at a full merits hearing or, if exchange of witness statements has not already taken place, simply incorporate the contents of the disputed material into witness statements. This will mean that the application to exclude material will need to be repeated at the start of trial and it may be necessary to make an application to strike out passages of the witness statements. In any event, there will not always be time to request a preliminary hearing in advance of any trial.
One approach, which I recently adopted with success, was to request that the tribunal list a preliminary hearing in private for the first few hours of the first day of trial to consider the matter of excluding particular documents. This ensured that the issue was considered in private, such that members of the media who were present were not party to discussions about sensitive documentation. It also minimised the disadvantages associated with holding a preliminary hearing in advance of trial, including:
- The risk of the tribunal concluding that it was insufficiently informed to resolve the matter; and
- The claimant making later attempts to introduce the excluded material by alternative means.
Finally, it saved the costs which would have been entailed in the preparation for, and attendance at, a separate preliminary hearing.
It is worth noting that different tactics may be appropriate if seeking to exclude material on different grounds, such as without prejudice communications or legal privilege.
