In Eversheds LLP v Gray (2011) UKEAT/0585/11/CEA, HHJ Peter Clark sitting alone has considered the circumstances in which a PHR can be heard in private when the nature of the evidence to be heard may be confidential.
The Claimant, (a solicitor) brought a claim of disability discrimination. As part of his claim, he sought to rely on discussions between his legal advisers and the Respondent. Readers will recognise the Respondent as the large solicitors firm Eversheds LLP. The Respondent’s position was that the discussions upon which the Claimant wished to rely were without prejudice and therefore inadmissible.
Utilising it’s case management powers, the Tribunal determined that the issue of admissibility would be determined at a PHR. However, the Respondent wished for the PHR to be heard in private and made an application to that effect. The Claimant opposed the application.
The power to hold a hearing in private is contained within Rule 16 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. One of the grounds within the Rule is where information has been “…communicated to him in confidence..”
As readers will appreciate, the mere fact that information is sensitive, may cause embarrassment or commercial loss will not automatically result in a private hearing. The right to a public hearing is a significant right, which engages the considerations of Article 6.
HHJ Peter Clark held that the Employment Judge had erred in law in omitting to have regard to two aspects of the test under Rule 16. He proceeded to exercise his power to consider the issue for himself.
It was common ground that if a conversation was ‘without prejudice’ it was confidential within the meaning of Rule 16. The second point is the issue of whether something was ‘likely’ to be confidential in determining whether the hearing at which admissibility would be decided would be in private. The point of interest is that HHJ Peter Clark afforded the same meaning to the term ‘likely’ as is found in interim relief proceedings, c.f.: Taplin v Shippam  IRLR 450 in the context of analysing prior to the PHR whether it should be held in private.
Therefore, parties that are seeking a hearing in private should be prepared to address the substance of the issue in detail. Whilst the decision to send such cases to a PHR can be made at a CMD, they can also be made on paper and parties will need to explain why it is ‘likely’ or ‘not likely’ that the information will be confidential.
Ultimately, the decision accords with common sense. As noted in the Judgment, if the information is genuinely confidential and within Rule 16, then the status quo will be preserved by the private hearing. However, if it is not, then the evidence will be available at a full hearing. The sole point which would detract from this logic would be if the case was settled following the PHR.
The decision is also interesting for it’s brief consideration of whether it would have been possible for the issue to be determined at a CMD rather than a PHR. It was noted in the Judgment that Case Management Discussions (CMD’s) are private hearings, though the eventual indication from HHJ Clark is that this would not have been appropriate.
As a final point, I would highlight that admissibility issues regarding evidence can often be missed, particularly when it comes to issues of without prejudice conversations, litigation privilege or legal advice privilege.