Back to top
News In Focus

Tribunal cannot lift reporting restrictions after case withdrawn

7 August 2009

A freelance journalist has failed in her attempt to have reporting restrictions lifted in an employment tribunal case she was covering – on a ruling that it was not possible to alter the order after the complainer withdrew her case.

Three Court of Session judges refused an appeal by Fiona Davidson against a decision by the employment appeal tribunal that (1) only parties to the case could apply for the revocation of a full reporting restriction order (RRO), and (2) as soon as withdrawal of the claim was intimated to the tribunal, its powers in the case were at an end and it could no longer rule on the RRO. The court disagreed with the decision on the first point but upheld it on the second.

The case had concerned an employee referred to as "B", who brought a case in 2006 under the Sex Discrimination Act against her employers Dallas McMillan and an individual, "A". An RRO was granted before evidence was led. On the fifth day of the hearing, B withdrew her complaint. The tribunal later allowed Ms Davidson's application to revoke the RRO, but the appeal tribunal agreed with the respondents that the rules did not allow this.

Lord Nimmo Smith, giving the opinion of the court in Ms Davidson's appeal, said the court agreed with her submission that "any interference with the right to publish in full what goes on in a court or tribunal is a serious matter of constitutional significance". Although the rules did not specifically cover an application by an interested person, who was not a party to the case, to vary or revoke a full (as opposed to temporary) RRO, the tribunal's general discretion to regulate its procedure was wide enough to cover such an application.

However the RRO was part of the proceedings before the tribunal, and when proceedings were brought to an end there was nothing in the rules to allow further proceedings in relation to an RRO, unlike some other matters such as costs. It followed that the tribunal had no power to revoke the RRO after that point.

The court observed that it did not know whether this outcome in the rules was deliberate, but pointed out that at the point a case was withdrawn, evidence might have been led by one side but not yet in rebuttal by the other, or proceedings might have been settled with a condition of confidentiality. "We do not purport to offer a solution, which will be for those concerned with any further amendment of the 2004 Rules", the judges commented.

Click here to read the full judgment.

Have your say