Two important decisions concerning the ongoing hearings of the Ranson Tribunal became available on the Manx courts judgment database this week – the judgment of Deemster Corlett on an appeal on points concerning the management of the case (delivered last week), and a direction with explanation issued this week by the Tribunal itself following hearings earlier in the week. The latter contains some very detailed discussion of sources of evidence provided to the EET, and cooperation or otherwise of potential witnesses, which I will not discuss in this blog (but are discussed in some detail in the EET direction para. 19-44).
Deemster Corlett usefully begins his judgment with a summary of developments since the decision by the EET of the 9th of May. As part of the decision of the 9th of May, the EET ordered that there would be a Disclosure Hearing, and that the parties were required to work together to agree the format for this hearing. On 22 June Dr Ranson applied for twenty-five persons to swear affadavits for the three day hearing due to commence on 30 August 2022. On 12 July the DHSC submitted a response to this application, and on 29 July there was a hearing by the EET, leading to two orders by the EET.
The business before the Deemster was an appeal from aspects of the decisions of the EET arising from this hearing.
Privilege.
One issue was whether Ms Heeley, a lawyer in the Attorney General’s Chambers, should be obliged to provide evidence to the Tribunal; or whether requiring her to do so violated privilege – that is, the zone for confidential discussion between a client and an advocate. Deemster Corlett did not decide this issue at the end of August, but instead adjourned it to another day. Given the length and complexity of privilege cases before the Manx courts such as Bitel LLC v Kyrgyz Mobil, one can see why.
The EET briefly reflected on this later, arguing that while it had required Ms Heeley to “provide details of the entire approach she adopted to ensure proper disclosure and highlighting and explaining where and how matters had gone wrong”, this was not seen as a breach of legal privilege by the parties in the hearing, and that there was not a conflict between this requirement and duties concerning advocate-client privilege (para.33-36). The EET also noted the possibility that the Attorney General’s Chambers might cooperate with the EET in providing information relevant to understanding the nature of any disclosure failings (para.37).
The power of the EET.
The second issue, which was resolved, was whether the EET had the power to convene a Disclosure Hearing at all. This was a new argument by the DHSC, which had previously been complying with the process (see para. 30-35). So Deemster Corlett had to consider whether, procedurally, it was too late to raise this issue – was this an exceptional case in which the Deemster should allow the new point on jurisdiction to be raised on appeal? Deemster Corlett reviewed the case law, including a Manx decision from last year (para. 42-52), and concluded after “a difficult balancing exercise” that the new point should not be allowed (para.52).
Deemster Corlett could have stopped there, but he moved on to consider the merits of the point the DHSC wished to raise; in case he had struck the balance in the wrong place. He was critical of the way in which the EET had expressed itself on the 9th of May, in particular comments of the EET around miscarriages of justice and the danger of disclosure failings in the High Court, and the description of the disclosure hearing as “special” (para.54); and language used on the 1 August (para.60). In the actual conduct of the case since the 9th of May, however, Deemster Corlett emphasised the EET’s focus on matters pertaining to the case before it – excluding, for instance, some causes of action between the parties (para.55-6) – as ensuring that “the issue of disclosure is tied to the issue of damages and costs” (para. 54). As part of this, the EET, in responding to the initial requests of Dr Ranson, had focussed on “system failures within the Department”, rather than across government (para.66).
Deemster Corlett found that the EET had, as the form and content of the Disclosure Hearing developed, focussed on matters of direct and pressing importance for the case before them (for his review of relevant authorities, see para.38-41). In particular, he found that the EET did not have “a free-standing jurisdiction to hold a disclosure hearing” (para.30), but was entitled to resolve issues relevant to the allocation of costs between the parties (para.31), and the remedy to be given to Dr Ranson: in particular whether aggravated damages should be awarded (para.33). The orders made by the EET after the July hearing was “far more constrained that that which Dr Ranson was seeking” (para.35).
As a result, Deemster Corlett concluded:
“In summary I consider that there is no sustainable foundation for Mr Callin’s submission that the Employment and Equality Tribunal are engaged on a “frolic of their own” as he put it, which is a phrase familiar to lawyers, akin to a public enquiry. The disclosure hearing in my judgment is plainly to be limited to the relevant remaining issues, namely compensation, particularly the issue of aggravated damages, and costs. Any sensible interpretation of the Tribunal’s order and its judgment of 1 August 2022 supports this interpretation.” (para.73).
Following the decision of the High Court, the EET was able to proceed with the disclosure hearing. It had originally been planned to publish “a definitive decision on deficiencies in the disclosure process” (para.3), but this was no longer practical. One reason was the decision of the DHSC to seek representation from outside the Attorney General’s Chambers, to avoid a possible conflict of interests (para.8, 31-37), but there were also issues with possible witnesses not having contributed, and a technical report not being available. As a result, the EET will continue the process in November.
The EET explicit state the reason for an investigation of “how and why there had been a serious risk of a miscarriage of justice” as being “essential” (para.17) to resolve claims for aggravated damages, and for exemplary damages, and the possibility of costs being awarded to Dr Ranson (para.13).
Damages.
A key, and legitimate, function of the disclosure hearing, then, concerns damages. Deemster Corlett noted that there had been some suggestion in oral argument that aggravated damages could not be awarded by an EET, but the point had not been argued, and “I do not think it is a very good point anyway because having read the Sutton v Creechurch [2019 MLR 172] authority it seems that that is certainly just not right” (para.28).
Sutton v Creechurch is a long running case, but the key judgment can be found here. It is particularly interesting for the Ranson proceedings because it involves a decision by the Employment Tribunal which discussed aggravated and exemplary damages. In this particular case, the High Court struck down the aggravated and exemplary damages awards, but in doing so reviewed with approval a significant body of English case law. Deemster Rosen explained the distinction between the two: “The question of exemplary damages was to be distinguished from aggravated damages; where the damage to be awarded at compensation may be aggravated by the particular way in which the defendant had behaved towards the plaintiff. Exemplary damages is not compensation, it is a form of punishment made in favour of the victim to mark the misconduct as falling within the established categories for such an award” (para.54).
It should be stressed that these proceedings are civil ones, intended not to punish the party being sued, but to secure compensation for the loss of the party suing, in this case Dr Ranson. Civil remedies, unlike criminal sentences, do not take as a starting point punishment of wrongdoing. This is the case even for aggravated damages awarded for heinous conduct by a state body (see Commissioner of Police of the Metropolis v Shaw [2012] IRLR 291). There is, however, an exceptional category of “exemplary damages”, and in Sutton v Creechurch Deemster Rosen cited approvingly decisions of the English House of Lords on aggravated and exemplary damages. The leading English case is Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL. There are a number of different speeches from the Law Lords, but from that of Lord Nicholls:
“The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant’s conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the claimant’s rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna.” (para.63).
The scope of exemplary damages is contested, but even the narrow view based on the House of Lords decision in Rookes v Barnard (no.1) would make exemplary damages potentially suitable in the case of “oppressive, arbitrary or unconstitutional action by the servants of government”.
Costs.
The disclosure hearing can also go to decisions as to costs. How do costs work in proceedings before an EET? Normally, the EET must not make a costs order (EET Rules 2018 as amended, rule 40(2)), but it may do so if the EET finds that one of a number of conditions has been met. These include if the other party has “acted vexatiously, abusively, disruptively or otherwise unreasonably”, or “has made a false or exaggerated allegation in his or her complaint or response or in evidence in support of it”, or “has been in breach of any order” (rule 40(3)). The EET can also make a wasted costs order against a party’s representative (which includes an advocate) where costs were incurred “as a result of any improper, unreasonable, or negligent act or omission on the part of any representative” (rule 41(3)).
The broader implications.
One of the key themes in Deemster Corlett’s judgement was that the EET needed to do all that was needed to run its case properly, but no more. I think it is fair to say that he sees the EET as refining its approach – and its expression – over the summer to do just that, and the EET stresses that is the function of its current hearings. Does this mean the case is only important to the parties?
Given that Dr Ranson is seeking, as part of the remedy in a case where liability has already been found, exemplary damages and a cost order, it seems likely that the EET will need to express a finding on significant issues of governance – not as a quasi-public inquiry, but to resolve the case before it. I am not going to seek to predict the finding of facts by the EET, but because of the way the action is structured particular findings of fact may be framed as showing or not showing “oppressive, arbitrary or unconstitutional action by the servants of government” (in relation to exemplary damages) or that the DHSC “acted vexatiously, abusively, disruptively” (in relation to costs), or that their legal representatives committed an “improper, unreasonable, or negligent act or omission” (in relation to wasted costs, which may not be a live issue in the case). It is possible to imagine a set of findings of fact which was reassuring as to broader governance issues. It is also possible to imagine a set of findings of fact which were not.
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