The EAT, in Ken Read v Dawson & Ette (Burton P., 11/11/02), has made some interesting observations on a tribunal's interlocutory powers when considering applications for discovery and inspection.
The principles to be drawn from Burton P.'s decision include:
(a) an order (or refusal of an order) under regulation 4(5)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, namely requiring the attendance of any person to give evidence or produce documents, is not a 'decision' of a tribunal within the meaning of the rules. A tribunal therefore has no jurisdiction to review the order (or refusal of the order);
(b) nor should such an application be renewed, if it has earlier been refused, unless fresh circumstances to exist. A party who unsuccessfully seeks such an order is not entitled to a second bite at the cherry without good reason;
(c) when deciding to order disclosure of particular documents under regulation 4(5)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, tribunals should have regard to the overriding objecting. This is not to say that the Civil Procedure Rules are deemed to be incorporated into the tribunal proceedings, notwithstanding the express reference to rule 31 of the Civil Procedure Rules 1998 in regulation 4(5)(b); there is no requirement in a tribunal for an application for discovery to be supported by formal evidence or a statement of truth.