CASE REFS: 92/05 FET
CLAIMANT: Whyed Muhammed Gill
RESPONDENT: The Extern Organisation Ltd
The decision of the Tribunal is that the time for complying with the Unless Orders made on 16 May 2007 for Additional Information and Discovery is extended for four weeks from the date this decision is registered and issued to the parties. If the claimant does not comply with the orders within that time his claims 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 Kinney
The claimant did not appear and was not represented.
The respondent was represented by Judith Blair, Solicitors of J. Blair Employment Law Solicitors.
"The decision of the Tribunal is that unless the claimant complies with an Order for Additional Information made on 30 October 2006, and an order for Discovery also made on 30 October 2006, not later than 29 June 2007, the Tribunal will make a decision striking out his claim without further consideration or the need to hold a 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."
"5. 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 7 years old and the Order is outstanding from 16 September 2003 I conclude that, balancing the interests of justice between the parties, the Pre-hearing Review should be listed for Wednesday 30 January 2008 at 11.00 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 Tribunals 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 Chairmen 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".
Date and place of hearing: 30 January 2008, Belfast
Date decision recorded in register and issued to parties: