CASE REFS: 100/07 FET
CLAIMANT: Whyed Muhammed Gill
RESPONDENT: 1. Starting Point
2. Gerry Reynolds
3. Margaret Brady
4. Nicola Powderly
5. Jim McCabe
The decision of the Tribunal is that unless the Claimant complies with Orders for Additional Information and Discovery made on 15 May 2007 within 4 weeks of the date this decision is registered and issued to the parties, his claim shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice to the claimant or hold a pre-hearing review or any other hearing.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
The claimant did not appear and was not represented.
The first second and third-named respondents were represented by Miss Richardson, Solicitor, of J Blair Employment Law Solicitor.
The fourth and fifth-named respondents were represented by Miss Jones, Solicitor, of Alana Jones, Solicitors
"indeed I would be happy for the court to strike out my claim against the fourth and fifth respondents if I fail to meet my own undertaking by 7 September without the need for any further hearing".
(1) The prognosis for the claimant's medical condition;
(2) When, if ever, the claimant will be medically fit to attend a pre-hearing review in the above case which is likely to last approximately one hour.
(3) Depending on the outcome of the pre-hearing review when, if ever, the claimant will be fit to attend a substantive Hearing which is likely to last for a period of 5-15 days consecutively and to give evidence, be cross-examined, and, if unrepresented, to cross-examine the respondents' witnesses, given that:-
(a) The claimant has ten other cases, two of which also require pre-hearing reviews to be listed and, depending on the outcome of those pre-hearing reviews, substantive hearings which could each last for a week or longer;
(b) The remaining eight cases are due to be heard at regular intervals over the next 14 months."
At paragraph 6 of that Record of Proceedings the President sets out:-
"6. I am concerned that my Order of 7 November 2007 in which I set out specific matters which should be dealt with in the medical report having regard to the cases of Teinaz –v- London Borough of Wandsworth and Andreou –v- Lord Chancellor's Department, was not fully addressed. However, on the basis of the medical that was provided by the senior house officer, it would appear that although the senior house officer "hopes" that when the claimant's medical condition improves he would be able to deal with the eleven sets of proceedings which he has brought, it is the expert opinion of the senior house officer and presumably the consultant psychiatrist that the claimant's medical condition may never fully resolve until these proceedings are dealt with. On that basis and in view of the fact that the case is now six years old. I conclude that balancing the interests of justice between the parties the pre-hearing review should be listed for Thursday 31 January 2008 at 10.00 am.
(7) Subject to paragraph (6), a Chairman or Tribunal may make an Order:-
(e) Striking-out a claim or response (or part of one) for non-compliance with a decision or order or practice direction.
Rule 18(7)(e) of the Industrial Tribunal Rules of Procedure 2005 is set out in the same terms.
"3(1) the overriding objective of these Regulations and the rules in Schedules 1, 2 and 3 is to enable Tribunals and Chairman to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable –
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense."
"But it does not follow that a striking-out Order or other sanction should always be the result of disobedience to an Order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused, and, still, whether a fair hearing is still possible. It should consider whether striking-out or some lesser remedy would be an appropriate response to the disobedience."
"This power, as the employment tribunal reminded itself, is a draconic 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 side 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 has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge  2 BCLC 167 and of the EAT in De Keyser v Wilson  IRLR 324, Bolch v Chipman  IRLR 140 and Weir Valves v Armitage  ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal".
"It is not only by reason of the convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings  1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences".
"a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demand of other litigants upon the finite resources of the court".
Unless the claimant complies with the Orders made by the Tribunal on the 15 May 2007 (further copies of which are attached to this decision) within four weeks of the date this decision is recorded as registered and issued to the parties, his claims will be struck out on the date of such non compliance without further consideration of the proceedings or the need to give the claimant any further notice or to hold a Pre Hearing Review or any other Hearing. The respondents should notify the Tribunal if there is no compliance with this Order by the due date.
Date and place of hearing: 31 January 2008, Belfast
Date decision recorded in register and issued to parties:
CASE REF: 02285/01
CLAIMANT: Whyed Muhammed Gill
RESPONDENTS: 1. Starting Point
2. Gerry Reynolds
3. Margaret Brady
4. Nicola Powderly
5. Jim McCabe
DATE OF HEARING: 15 May 2007
REPRESENTATIVES OF PARTIES:
CLAIMANT: In person.
FIRST, SECOND AND THIRD-NAMED RESPONDENTS BY: Ms R Wilson, Solicitor, of J Blair, Employment Law Solicitor.
FOURTH AND FIFTH NAMED RESPONDENTS BY: Ms N Powderly, of Evolution Human Resource and Management Consultancy.
The issues for the tribunal are as follows:-
(i) Did the claimant suffer unlawful discrimination on the grounds of sex, race, religious belief and political opinion?
The claimant alleges that he was subjected to a campaign of harassment on these grounds, and that the disciplinary proceedings brought against him were also influenced by these factors.
The claim against the fourth and fifth-named respondents is that they aided the other respondents.
(i) The claimant further alleges that he was unfairly dismissed by the first-named respondent, Starting Point.
That respondent denies that the claimant had the necessary continuity of service.
In accordance with Rule 10(1) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, I make the following orders, by consent:-
(i)(a) That the claimant complies with Orders for Additional Information and Discovery in favour of the first, second and third-named respondents by 29 June 2007.
(b) That the claimant complies with Orders for Additional Information and Discovery in favour of the fourth and fifth-named respondents by 29 June 2007.
Copies of the said Orders and Schedules are attached.
(c) The respondents will make available to the claimant all documents on which they intend to rely at the hearing.
(d) It appears that the claimant may already have sent Notices requesting Additional Information (Further Particulars) and Discovery to the fourth and fifth-named respondents. He undertook to send further copies of these Notices to Ms Powderly by 29 June 2007, so that they can be re-considered. Ms Powderly will respond by 20 August 2007.
(ii) Witness Statements
(a) The claimant and any witness he wishes to call must provide a witness statement to the respondents' representative by 31 August 2007.
(b) The respondents and any witness they wish to call must provide a witness statement to the claimant by 12 October 2007.
(c) If the claimant or any of his witnesses wishes to respond to any evidence given in the respondents' witness statements, he must provide a supplementary witness statement to the respondents' representative by 26 October 2007.
(d) A witness statement must be a complete statement of the evidence that the witness wishes to give to the tribunal. A witness will not be permitted to add to his statement without the consent of the tribunal. Consent will only be given where there is good reason for doing so.
(e) Each witness statement will be read aloud to the tribunal, unless the tribunal considers that it is inappropriate to do so.
(f) The witness statements will not normally be read by the tribunal prior to the commencement of the hearing, unless the parties are otherwise informed.
(ii) Schedule of Loss
The claimant must provide to the respondents' representative a schedule of all financial loss claimed by the claimant, setting out in particular the nature and amount of any such loss claimed and how that sum is made up, by 31 August 2007.
An agreed bundle, paginated and with a proper index, of all relevant documents including the witness statements, with numbered paragraphs, must be lodged in the Office of the Tribunals by 16 November 2007. Any documents referred to in the witness statements must be identified by page number in the bundle. Three further sets of the bundle must be brought to the Office of the Tribunals not later than 9.30 am on the first day of the hearing.
(iv) Date of Hearing
19 – 23 November 2007;
26 – 30 November 2007; and
3 – 7 December 2007.
Date: June 2007
If any party fails and/or is unable to comply with any of the above orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Rules of Procedure.
Failure to comply with any of these orders may result in an Order for Costs under Rule 13(1) of the Rules of Procedure or for an Order that the whole or part of the claim, or as the case may be, the response, may be struck out and, where appropriate, the respondent to be debarred from responding to the claim altogether.