FAIR EMPLOYMENT TRIBUNAL

CASE REF:	00403/01FET
2759/01

CLAIMANT:		Albert John Titterington

RESPONDENT:	Institute of Management	

DECISION ON AN APPLICATION FOR REVIEW

The decision of the Tribunal is that under Rule 32(3) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 I as a Chairman of the Tribunal sitting alone heard this application for review on a preliminary issue and refused the application by the claimant on the following grounds.

Constitution of Tribunal:

Chairman:		Mr P Cross

Appearances:
The claimant appeared in person. 
The respondent was not represented and did not appear before the tribunal. 
REASONS
1.	The claimant requested a review on the basis of:-

(i)	new evidence becoming available since the making of the decision.

	(ii)	the interests of justice require a review.

2.	In his application for this review dated 3 July 2005 which was in fact 3 August 2005, the claimant correctly in paragraph 4 of his request stated that I as Chairman had accepted an undertaking from Mr O’Loan that a signed hard copy of his client’s Witness Statement would be lodged with the tribunal on the afternoon of 8 July.  This Mr O’Loan stated would be a signed copy and not vary in any way from the original e-mailed copy which the claimant had received the night before.  I have since the date of the hearing on 8 July  been informed by the Tribunal Office that the hard copy has not been lodged with the Office.  The document had still not been received on 10 October 2005. 

3.	As Mr O’Loan was not present at the review hearing Mr O’Loan’s failure to honour his undertaking would have to be addressed at a future hearing at which he is present.  However, in the meantime, the claimant is in possession of the copy of a Witness Statement and an assurance has been made in open tribunal on behalf of the respondent that that is the Witness Statement and that it will not be altered from the e-mailed version in the possession of the claimant.  No date has yet been fixed for the hearing of this case and in my view the claimant is not prejudiced by the fact that the signed Witness Statement is not in his possession.  I appreciate that the fact that it is not in his possession, despite it having been promised to him in open tribunal is very unsatisfactory, however, this tribunal must be guided by the various reported decisions regarding the tribunals power to strike out a claimant’s claim, in particular the case of Weir Valves and Controls (UK) Limited -v- Armitage [2004] ICR 371 which was referred to in paragraph 9(c) of the decision on the pre-hearing review in this matter.  

4.	I do not consider any new evidence has become available in this matter concerning the interests of Justice requiring a review.  The claimant during the course of this review hearing drew attention to certain other unreported cases which were available on the BAILII web site.  One of these was the decision of an employment appeal tribunal in England being Haddad -v- Salford City Council & Others Reference 2003 UK EAT 0522/03 and EAT 0523/03.  In that case His Honour Judge D Serota QC reviewed the situation in a case somewhat similar to the case before this tribunal, where documents were not filed at the appropriate time.  In that case the learned Judge stated “This is a case in which a local authority has behaved with considerable incompetence.  It failed without satisfactory explanation beyond incompetence to comply with the order for disclosure and its approach to disclosure has been muddled and contradictory.  The Chairman would have taken those matters fully into account but equally he would have found that there had been no prejudice caused to the applicant that could not be met by an award of costs beyond the usual stresses that are inherent in any form of litigation.  If it falls to me to exercise my own discretion I would have come to the same conclusion as the Chairman, namely that the application should go on for hearing”.

5.	Many of the cases that have been referred to the tribunal by the claimant refer to wilful or contumelious failure to obey an Order of a tribunal.  These cases show that it is necessary for a tribunal, before it strikes out the claim, or the response, of a party to the tribunal, to be satisfied that serious prejudice is shown by the person applying for the strike out.  In the words of Millett J in Logicrose Limited –v- Southend United Football Club (1998) The Times 5 March 1998:-

“But I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct, however deplorable, unless there was a real risk that that conduct would render the further 
conduct or proceedings unsatisfactory.  The Court must always guard itself  against the temptation of  allowing its indignation to lead to a miscarriage of justice”.

6.	This tribunal having considered the cases referred to by the claimant and the delays that have occurred in the past in this case and the current delay in the claimant receiving the signed copy of the Witness Statement still holds that its original decision not to strike out the respondent’s response to this claim is the correct decision, bearing in mind the clear authorities that are binding on this tribunal.  The application for review is therefore refused.

  

Chairman:

Date and place of hearing:	10 October 2005, Belfast.	

Date issued to parties: