FAIR EMPLOYMENT TRIBUNAL

CASE REF:	83/04FET

CLAIMANT:		Peter Stewart Tazzioli			

RESPONDENT:		Land of Leather	

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

1.	The claim of the claimant is struck out, pursuant to the provisions of Rule 17(7)(e) of the Fair Employment Tribunal Rules of Procedure 2005, for non-compliance with an Order for Additional Information dated 19 August 2004.   

2.	The application of the respondent for an Order for costs pursuant to Rule 12(1) of the Fair Employment Tribunal Rules of Procedure 2004, is refused.

Constitution of Tribunal:

Chairman:		Mr N Drennan QC (Chairman sitting alone)

Appearances:

The claimant did not appear and was unrepresented.

The respondent was represented by Ms A Hughes of First Business Support – on the telephone link using the telephone conference facilities.	

REASONS

1.	On 19 August 2004, the tribunal made an Order for Further Particulars, on the application by the respondent, requiring the claimant to furnish in writing to the respondent’s representative, such Particulars as were specified in the Schedule attached to the said Order by 6 September 2004.  The Schedule attached to the said Order sought Further Particulars of matters which had been set out in the claimant’s originating application which had been presented to the tribunal on 25 February 2004.  The claimant’s originating application set out limited details of the allegations of unlawful discrimination, the subject matter of this claim.  This Order was served on the claimant’s then representative, Employment Rights, of 143 Heaton Moor Road, Stockport.  The Order was not complied with.  The respondent then made an application to strike out the claimant’s claim due to the claimant’s failure to comply with the said Order, which following the coming into operation of the Fair Employment Tribunal Rules and Procedure 2005 was now referred to as an Order for Additional Information, rather than an Order for Further Particulars. 

2.	A Pre-Hearing Review was held on 20 April 2006.  The claimant appeared at that hearing but was unrepresented.  The respondent submitted written representations.  As appears from the said Decision the Chairman noted that the claimant’s representative, Employment Rights, had gone into liquidation at some unknown date.  The claimant did not understand the implications of the liquidation order and believed that another representative would be appointed on his behalf.  This was not the case.  The claimant further informed the Chairman that he had never been informed, by his former representatives, that an Order had been made against him.  In her said Decision, the Chairman explained to the claimant that he was required to answer the questions contained in the Schedule to the Order and that if he did not do so his claim might be struck out.  In the circumstances, the Chairman decided not to exceed to the respondent’s application at that stage;  but rather to give an extension of twenty one days from the date of the said hearing to the claimant to comply with the Order.  She also decided that, if he did not do so, a Strike Out Notice would be issued.  The respondent applied for costs of the application and the Chairman decided to reserve the issue of costs.   

This Decision was recorded in the register and issued to the parties on 26 April 2006.  The said Order was not complied with within the extended period granted by the Chairman as set out in her Decision on the Pre-Hearing Review.

3.	By letter dated 30 May 2006, the claimant was informed of the respondent’s application to dismiss his claim, because he had not replied to the Order issued on 19 August 2004, despite being given an extended period for compliance.  He was informed that the application to Strike Out would now be listed for hearing;  and further, at that hearing, he would have an opportunity to show cause as to why the claim should not be struck out.  He was also informed that a relevant consideration at the time of hearing would be whether or not the Order had then been complied with by him;  and that the party in default of an Order may be held  if conduct of proceedings unreasonably and costs may be awarded against that party. 

4.	Notice for a Pre-Hearing Review on 21 June 2006 to consider the respondent’s application to Strike Out the claimant’s claim for non-compliance with the said Order for Additional Information dated 19 August 2004 was sent to the claimant on 1 June 2006.  The letter dated 30 May 2006, and the letter dated 1 June 2006 containing the said Notice were returned by Royal Mail, stating that the Royal Mail was unable to deliver the said correspondence/Notice because the addressee had gone away.  Prior to the Pre-Hearing Review on 20 April 2006, Malpass & Greene Solicitors wrote to the Tribunal by letter dated 15 March 2006 on the claimant’s behalf explaining why he had not complied with the Order, the subject matter of that hearing.  These Solicitors did not attend the Pre-Hearing Review.  In light of the previous correspondence from the Solicitors,

Malpass & Greene of Lisburn, telephone contact was made with the said firm, who stated that they were not on record for the claimant;  but they also stated that the claimant had moved house recently and could not be contacted by phone.  The Solicitors supplied a new address for the claimant, namely 37 Copperfields, Upper Ballinderry, Lisburn BT28 2RW.  By letter dated 13 June 2006, the tribunal wrote to the claimant at the address provided by the said solicitors enclosing inter alia, the previous Notice of Strike Out hearing for 21 June 2006, the letter sent by the tribunal on 30 May 2006 and correspondence received from the respondent’s representative, in relation to their request for a postponement of hearing on 21 June 2006 and seeking any comments from the claimant in relation to the said postponement.  The claimant did not respond to the said correspondence;  but it also was not returned by Royal Mail.  The said hearing on 21 June 2006 was postponed.  Notice of the said postponement was sent to the claimant at the said new address by Notice dated 26 June 2006.  Again, the said Notice of postponement was not returned by Royal Mail.

5.	On 17 July 2006, the claimant was given notice of this Pre-Hearing Review on 13 September 2006 to determine whether the claim of the claim should be struck out due to the claimant’s non-compliance with an Order for Additional Information dated 19 August 2004, and which said Order was attached to the said Notice.  Again, the said Notice was not returned by Royal Mail.  Further, Ms Hughes informed me that the claimant had still not made any reply to the said Order.  The claimant did not appear at this hearing, as he was requested to do so by the said Notice of Hearing, to show cause why the said Order should not be made. 

6.	Ms Hughes said that it was essential for the respondent, in order to prepare properly for the defence of this matter to obtain the Replies to the said Order of Additional Information.  She stated, and I accept, that in the absence of the said Replies, which have been outstanding since 2004, she is unable to seek statements from relevant witnesses and/or to ensure that all relevant documentation has been obtained.  Having considered the limited terms of the claimant’s originating application and the terms of the Additional Information sought on foot of the said Order, I am not satisfied that, in the absence of Replies to the said Order a fair trial is still possible.  The Replies to the said Order have been outstanding since 2004 and the claimant has not made any attempt to reply to same.  However it has to be noted that the Chairman, at the previous Pre-Hearing Review, accepted that the claimant had not been advised by his then representatives of the Order.  However, the claimant was, as set out in the Decision of the previous Pre-Hearing Review, expressly told by the Chairman of the necessity for him to Reply to the said Order and the consequences for him of not doing so.  In the circumstances she decided not to Strike Out the said claim at that stage;  but rather granted an extension of time to comply with the said Order.  Despite this extension of time the claimant has still failed to Reply to the said Order.  He has not provided any reason for his continuing failure.   

7.	In considering this matter I was particularly conscious of the Decision of the Court of Appeal in England and Wales in the case of Blockbuster Entertainment Limited -v- Jane [2006] EWCA civ 684 in which Sedley LJ, giving the judgment to the Court, stated:-

	“20

This power, as the Employment Tribunal reminded itself, is a draconian power, not to be readily exercised.  It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its sides of the proceedings unreasonably.  The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it is made a fair trial impossible.  If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is proportionate response”. 

For the reasons set out above, I am satisfied that in the continuing absence of the said Replies, a fair trial is not possible in this matter.  

Further, I am satisfied that the claimant has conducted the said proceedings unreasonably.  Despite the Chairman at the previous hearing giving him the further chance to make the Replies, he has failed to do so, albeit he was made fully aware of the consequences of not making a Reply to the said Order.  He has not appeared at this hearing, nor has he responded to any correspondence, in relation to this hearing, nor given any reason why he has failed, despite the extension of time granted at the previous hearing, to reply to the said Order.

Having so decided it was then necessary for me to consider whether, in the above circumstances, it would be a proportionate response to make an “Unless” Order in this matter, rather than decide to Strike Out the claimant’s claim.  However, I came to the conclusion, in the particular circumstances of this case, that such an “Unless” Order would not be an appropriate proportionate response.  In essence, the Chairman at the Pre-Hearing Review made an “Unless” Order when she gave the claimant a further extension of time to Reply to the said Order and explained, as set out in the said Decision, the consequences of any failure to comply with the said Order, as amended by the said extension of time.  I am not satisfied that it would be appropriate to make an Unless Order, in the above circumstances and which would, in effect, merely repeat what took place at the previous Pre-Hearing Review.  I think that there has to come a time when further chances cannot be given to a claimant, who has ignored previous  chances given.  I have come to the conclusion that, although to Strike Out the claim is a draconian remedy, in the particular circumstances of this case and in light of what was decided at the previous Pre-Hearing Review, to Strike Out the claim would be a proportionate response.

8.	The respondent’s representative made an application for an Order for costs pursuant to Rule 12(1) of the Fair Employment Tribunal Rules of Procedure 2004 on the grounds that the conduct of the claimant has been unreasonable.  I noted at the previous Pre-Hearing Review the issue of costs was reserved.  Although I consider the claimant’s conduct has been, for the reasons set out above, unreasonable I do not consider in the exercise of my discretion, that I should make any Order for costs.

Chairman:

Date and place of hearing:	13 September 2006, Belfast.

Date decision recorded in register and issued to parties: