England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Friday 4th May, 2001

1. LORD JUSTICE PILL: This is an appeal from a decision of the Employment Appeal Tribunal (Lindsay J, President, presiding) given on 12th December 2000. The Employment Appeal Tribunal dismissed an appeal from an Employment Tribunal sitting at Bristol on 25th February 1999. That Tribunal, by a decision disclosed on 25th March 1999, refused a review.
2. The appellant, Mr RJ Terry, had been dismissed from his employment in August 1998. In October 1998 he presented an originating application complaining that he had been unfairly dismissed for asserting statutory rights. He also claimed damages for breach of contract and compensation under section 23 of the Employment Rights Act 1996.
3. The originating application was struck out by the Employment Tribunal, and it is that decision against which Mr Terry appealed first to the Employment Appeal Tribunal and now to this court. This is therefore the second appeal. In a decision which in writing runs to 40 paragraphs, the Employment Appeal Tribunal considered comprehensively (and if I may so cogently) the complaints made about the decision of the Employment Tribunal and rejected them. Reference was made to many of the documents which had been before the Employment Tribunal.
4. I do not propose to set out comprehensively the facts of the case or the issues which have been raised at different stages. I could not do better, if I may say so, than the Employment Appeal Tribunal have done in their judgment.
5. Permission to appeal was granted on 8th February 2001:

"The grounds are arguable. The case may also raise the issue of whether the use of the draconian penalty of strike out in circumstances such as these is compatible with Article 6 of the European Convention on Human Rights, particularly if there is a disparity in practice between courts and tribunals when both are determining civil rights and obligations."

6. I make two preliminary points. The first is that Mr White QC for the respondent and Mr Holden for the appellant have brought to our attention new Employment Tribunal rules which will reflect, we are told, the Civil Procedure Rules. It is, however, our duty to decide the case upon the then existing rules insofar as they relate to strike-out.
7. The second point is in relation to the basis upon which permission to appeal was given. Mr Holden accepts – and rightly accepts in my judgment – that the proposed point under Article 6 of the Convention makes no fundamental difference to the issues in the case or to the approach which should be adopted. What Mr Holden does say is that proportionality is the central issue in the present case. He challenges whether it was proportional to take the drastic remedy of striking out the originating application. He adds, however, that the only effect of Article 6, in his submission, is to make the concept of proportionality more cogent to the court's consideration. I agree with his acceptance that there is no need for any radically different approach to the issues in this case by reason of the fact that the Human Rights Act 1998 is now in force.
8. The originating application was struck out under Rules 13(2)(e) and (f) of the Employment Tribunal (Constitution and Rules of Procedure) Rules 1993, which provide:

"A Tribunal may-

(e) subject to paragraph (3), at any stage in the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Applicant or, as the case may be, Respondent has been scandalous, frivolous or vexatious; and

(f) subject to paragraph (3), on the application of the Respondent, or its own motion, order an originating application to be struck out for want of prosecution."

9. Both grounds were relied on by the Employment Tribunal.
10. There is no need to set out Rule 13(3). It requires that the party against whom it is proposed that the order should be made should be given an opportunity to show cause why the order should not be made.
11. I propose to confine my judgment to dealing, and dealing briefly, with the submissions which Mr Holden has made. He refers to Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926, in which consideration is given to circumstances in which a strike-out should be permitted. I note that Lord Woolf MR stated at page 1933D that the court should:

"... take into account the effect of what has happened on the administration of justice."

12. Mr Holden rightly accepts that the Employment Tribunal had a discretion and it is only if there has been a wrong exercise of that discretion, or if the decision is plainly wrong, that the Employment Appeal Tribunal or this court should intervene.
13. Mr Holden relies upon the judgment of Chadwick LJ in Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167. At paragraph 54 of his judgment Chadwick LJ stated:

"... that the object of the rules as to discovery is to secure a fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or a defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been held. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the Court as to render further proceedings unsatisfactory and to prevent the Court from doing justice, the Court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him."

14. The point made by Mr Holden is that nothing has happened in this case which eventually will prevent a fair trial of the action. He submits that that is the critical test. Proceedings should only be struck out in circumstances such as the present where there has been conduct which has the effect that justice cannot in the end be done. The court, he submits, should not be too ready to find scandalous conduct on the basis of which a strike-out is appropriate. In this case he submits an unless order would have been appropriate and there was no need to strike-out. Allowance should have been made for the fact that Mr Terry was a litigant in person. Employment Tribunals must be expected to take a friendly attitude towards such persons. The procedures permit the regular appearance of litigants in person and orders for costs are not customarily made. Tribunals should have regard to the lack of experience, objectivity and time of litigants in person.
15. He accepts, and rightly and inevitably accepts, that it does not follow that Tribunals are obliged to give a licence for outrageous behaviour. A lenient approach should however be adopted, he submits. I comment only that both Employment Tribunal and the Employment Appeal Tribunal have a majority of lay members and they, with the legal qualified Chairman, can be expected to be familiar with dealing with litigants in person and fully aware of the considerations which apply to them.
16. I make the general observation that I do not accept that conduct is incapable of being scandalous or frivolous such as to justify a strike-out within the meaning of the rules only if there cannot eventually be a fair trial notwithstanding that conduct. There is conduct which no court or tribunal, with its necessary concern for the proper administration of justice, could tolerate. Courts and tribunals must be concerned to do justice. They must, in doing that, have regard to the interests of litigants in general, to the proper use of court time and to the need to ensure respect for courts and tribunals in the community.
17. Having made those general points, Mr Holden makes specific submissions as to the defects which he submits are present in the extended reasons of the Employment Tribunal.

"16. In these circumstances, we find on the facts that the manner in which the proceedings have been conducted by the applicant has been frivolous. Secondly, we find as a fact that the application has not been prosecuted expeditiously. The timetable set by the Tribunal reflected the dates agreed by the applicant for the hearing. He has deliberately chosen to ignore that timetable. For those reasons, we strike out the Originating Application pursuant to Rule 13(2)(e) & (f) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 1993.

17. We also find that the applicant has conducted proceedings in a frivolous - and scandalous - manner in his dealings with the respondents and the Tribunal. He has pestered the respondents and their solicitors, been abusive to them, has accused them both of malpractice, of being part of a conspiracy, of negligence. He has threatened them. He has said he sees it all as a game. `I just love the Game'. He played the `Game' with the respondents which involved fighting a cause, not a case. His unduly lengthy and discoursive letters were disruptive of the preparation of the case. His letters to the Tribunal, sometimes personally addressing the Regional Chairman, were, at times, threatening, often bullying. He has tried to get his way by either misrepresenting what happened or feigning that he misunderstood what was said. He has hinted at bias. He threatened the Tribunal with adverse publicity, political involvement, and appeals. its extent and persistence made it threatening, and is way outside anything encountered before by this Chairman. In his dealings with the respondents and the Tribunal, we find he conducted proceedings frivolously. We also consider it amounted to scandalous conduct of proceedings. The application is struck out on that basis too."

18. The first submission is that the Tribunal was not justified in stating, as it did at paragraph 17, that the appellant had "tried to get his way by either misrepresenting what happened or feigning that he misunderstood what was said." In the course of argument reference was made to paragraph 11 of the extended reasons. Mr Holden refers to letters written by the appellant in February 1999 which at least demonstrate, Mr Holden submits, that the appellant was consistent in his view. He was consistently requesting clarification, and that is difficult to reconcile with the conclusion which the Tribunal reached.
19. The second point is in relation to a medical report which is at page 130 of the bundle. The Tribunal dealt with that at paragraph 12:

"12. The applicant has failed to comply with the order. He has not provided documents. He has not provided the tape recording and transcript. He has not provided a witness statement. Why not? Because of ill health. We reject that. There is no medical evidence that he is unfit. To the contrary, it says that there is no reason why he should not be able to take part in the case. We do accept that he may be, or may have been, under some stress. That is not unusual for litigants. It is part of the process of the litigation. In this hearing, although he has been sipping milk and sniffing, he has shown no sign of fatigue. He has conducted his case with his usual vigour. He put his case with considerable force. Last, we take note of the vast number of very lengthy letters written by the applicant - many served in the last three days. In one, he refers to spending 11 hours at the keyboard. That hardly suggests that he is unfit to conduct litigation."

20. In my judgment the Tribunal was justified in reaching the conclusion it did, giving appropriate weight to the medical report. The members of the Tribunal had an opportunity, both from considering the written material before them and hearing the appellant on this question. In my judgment the findings of the Tribunal were justified.
21. The third point made is that the Tribunal, while entitled to take a seriously adverse view of the contents of the letters which the appellant had written, took too strong a view in the circumstances. Mr Holden rightly and inevitably accepts that the letters are extreme, and he accepts that their contents are regrettable. But he submits that, on analysis, the Tribunal should not have reached the conclusion it did in paragraphs 16 and 17 on the basis of them. He refers to the case of Parashuram Detaram Shamdasani v King Emperor [1945] AC 294 where the Privy Council, in a contempt situation, warned courts against overreacting to material of this nature.
22. The further point is made under this head that at the time the originating application was struck out the appellant had contacted a gentleman who was to appear for him from then on, and Mr Holden submits that, the corner having been turned in that way, the contents of the letters should be regarded as past history. There could be a fair trial, and the fact that the appellant had chosen to bring in someone to act for him was sufficient assurance for the court that the conduct would not continue. Past conduct could not justify, in those circumstances, the striking-out. The striking-out was a punishment for past conduct and should not be tolerated by this court.
23. I have already made a general comment about the approach which a tribunal or court may be expected to take when provoked and abused in the way in which the Employment Tribunal found that they had been. A decision was to be taken in all the circumstances and in my judgment, on the material before the court - and Mr Holden certainly did not understate the unpleasantness and provocativeness of the letters - the Tribunal was entitled to conclude that the problem was not over. Moreover, the Tribunal commented, and fairly commented in my judgment, that notwithstanding the appointment or suggested appointment of Mr Hammond further letters were written.
24. In response to that, Mr Holden says that the letters could have no bearing upon what would happen in the future. I comment only that the fact that one takes in representation, whether lay representation or legal representation or lay representation with a person who has some legal background, cannot be the excuse or the licence for a last abusive blast, feeling assured that that abusive blast will not then be treated seriously by the court. All the circumstances must be considered, including the Tribunal's assessment of what is likely to happen in the future.
25. The fourth complaint is in relation to the use in paragraph 18 of the extended reasons of the word "stratagem":

"18. There is one matter we must address. The applicant appointed Mr Hammond as his representative on the 19 February. The applicant knew Mr Hammond was not available on the dates agreed by him for the hearing. He also knew that Mr Hammond was unavailable this week. In other words, Mr Hammond had no time to prepare the case and could not represent the applicant on the agreed date. We are satisfied that this was part of the applicant's stratagem to avoid the hearing on the 1 March, thereby prolonging the game that he was enjoying with the respondents and putting them to further expense and inconvenience. We refer to the fact that, despite Mr Hammond's appointment, the applicant - not his representative - has written, often at length, several times this week to the Tribunal and the respondents' solicitors. The respondents are ready for the hearing, and delay prejudices them, particularly in greater costs - at the very least, further correspondence would be inevitable. The applicant says he was unable to get representation earlier. We do not believe that. We refer to correspondence saying that he had been advised by persons at the Law Centre. No attempt seems to have been made to seek representation from that source, for example. We appreciate that Mr Hammond is unable to represent the applicant today. But no one knows the applicant's case better than the applicant - or his motives for not complying with orders of the Tribunal. Mr Hammond would not have been able to do justice to the applicant's case at such short notice. (He is a Trade Union official, as we understand it, though with a legal background.) We have considered whether the applicant has been prejudiced by representing himself today, and find not. He is articulate, has what he want to say at his fingertips, has an encyclopedic knowledge of his case, and was well-able to express himself with vigour and clarity. The issue, though important, was well-understood and argued by him. The absence of Mr Hammond does not affect our decision."

26. Mr Holden draws attention to the sentence "We are satisfied that this was part of the applicant's stratagem to avoid the hearing on the 1 March." He submits that such a finding was not justified in the circumstances. He further produces a document not available to the Employment Tribunal, in which it appears that before the hearing the appellant had been taking advice from law students operating from the Avon and Bristol Law Centre.
27. Mr Holden also refers to letters in which in December 1998 the appellant refers to the possibility of trade union representation, and a letter in January in which he refers to a vague promise from Mr Hammond.
28. I do not regard the finding in paragraph 18 as central to the Tribunal's decision. It follows the general conclusion set out in the two previous paragraphs. It appears to me to be included primarily to explain why the Tribunal felt entitled to proceed, as they did in March, notwithstanding Mr Hammond's absence. The reference to the alleged "stratagem" is not central to their decision. Even if that is not the case, I would not find this an adequate ground for allowing the appeal. The Tribunal had a good opportunity to assess the appellant's motivation. Mr Hammond had been mentioned in a letter two months' previously and they were entitled, on the material they had, in my judgment, to adopt that word.
29. What is more to the point is that their acceptance of that word is not, in my judgment, a ground for allowing this appeal. While the Tribunal did not have the letter from the Avon and Bristol Law Centre dated 10th December 1998 (which is at page 207 of the bundle) I do comment that what appears to be contemplated there is some very informal consultation with students. The representative of the Centre states:

"They cannot attend for the purposes of giving advice or support because they cannot provide unsupervised advice."

30. If anything, in my judgment, this letter tends to confirm a view that the appellant had not made any serious attempt to obtain representation, had he proposed to do so in good faith. Facilities are available to people, and I have no doubt that a man of mature years and experienced in the ways of the world, as the appellant undoubtedly is, would have been aware of them. I find no mischief in paragraph 18. This, in my judgment, is very much a side issue in the case as a whole. I comment on it only because in my view Mr Terry has not suffered any prejudice by the absence of this further material before the Tribunal. What Mr Holden put as a subsidiary point based on paragraph 18 does not begin to make a case for his client.
31. What Mr Holden does submit is that the points he has made should be taken together and cumulatively. They indicate, he submits, that the decision of the Employment Tribunal was plainly wrong. The members attached too much importance to the timetable and not enough to the appellant's circumstances. Had they given sufficient regard to his circumstances, they could not properly have reached the conclusion they did.
32. I bear in mind that the appellant is a lay person, that the timescale in this case was short in that the strike-out occurred without any prolonged delays having occurred, and also that Mr Hammond had, before the strike-out, offered to give his assistance. The Tribunal was obliged to consider the circumstances as a whole. There is every indication that they did so. In my judgment they were entitled to come to the conclusion on the basis of the appellant's conduct, and his conduct not only towards the court but towards his opponents, that this was a case in which, by reason of his attitude to the court orders and his conduct generally, they were entitled to conclude that the originating application should, under both paragraphs of the rule, be struck out.
33. I would dismiss this appeal.
34. LADY JUSTICE ARDEN: I agree.
35. The essence of the appellant's case before this court is that the reaction of the Tribunal in the present case was, and here I quote, "too vigorously draconian" in proportion to the default before it. No challenge was or could be made to the existence of the power to strike-out. That power primarily exists to protect the other party in the case. Therefore, in order to succeed on this appeal, the appellant must show that the Employment Appeal Tribunal's conclusion was one that no reasonable tribunal acting reasonably could make.
36. A key finding by the Tribunal which is not challenged is that by his letter dated 22nd February 1999 Mr Terry had made it clear he had no intention of complying with the Tribunal's order dated 18th January 1999. As I say, that finding is not challenged. Nor is there any evidence that the position changed. I would observe that the expression of any regret, contrition, apology or commitment to conduct the proceedings properly in the future are all conspicuous by their absence before the Tribunal, the Employment Appeal Tribunal and this court. No application has been made to put in evidence showing a complete change of heart by Mr Terry.
37. In all the circumstances, it is impossible to say that the Employment Appeal Tribunal was such that no reasonable tribunal acting properly and reasonably could reach.
38. For these reasons, as well as those given by my Lord, Lord Justice Pill, with which I agree, I consider that this appeal should be dismissed.
39. LORD JUSTICE DYSON: I agree with both judgments.
ORDER: Appeal dismissed with costs; until 12th April there will be an order for costs against the Appellant personally, from that date onwards there will be a Section 11 order against the Legal Services Commission; the question of the Appellant's personal liability from 12th April onwards deferred to the costs judge; legal aid assessment of the Appellant's costs. (Order not part of approved judgment)