England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/05/2006

Lord Justice Sedley :

1. Mr James lodged two claims against his employer, Blockbuster Entertainment, alleging racial harassment, victimisation and discrimination. On 24 January 2005 an employment tribunal (Mr G.Solomons, Mr C.J.Storr and Mrs M.J.Wood) struck both claims out on the grounds that Mr James had not complied with procedural orders made by the tribunal and in doing so had conducted his proceedings unreasonably. In consequence of this decision Mr James was ordered at a later date to pay £11,000 in costs.
2. On 6 October 2005 the Employment Appeal Tribunal (Elias J, Dr Mohanty and Mr Worthington) allowed Mr James' appeal against the striking out of his two applications and remitted the issue to a differently constituted employment tribunal. Chadwick LJ on sight of the papers refused Blockbuster permission to appeal against this decision, but on renewal in open court Sir Peter Gibson granted it.
3. The history upon which the employment tribunal based its decision was set out by it as follows.

3. ....The Claimant presented his first Originating Application on 1 December 2003. That matter came before a Chairman, Ms Lewzey, at a directions hearing on 24 June 2004. By that stage, the Respondent had requested further and better particulars of the Originating Application on 24 December 2003. In due course, the Tribunal made an Order dated 11 February, requiring the Claimant to respond to that request, which he did by a reply dated 24 February but which reply did not fully particularise the matters requested with any degree of particularity. Accordingly, the Respondent presented a request for further information of the details of complaint, asking that the Claimant set out more succinctly the information required so that the Respondent could understand the claim against it.

4. At the directions hearing on 24 June 2004, the Chairman, Ms Lewzey, ordered the Claimant to particularise his claim in such a way that the Respondent understands the claim against it and ordered him to reply to the request for further information of the details of the complaint by sending a reply to the Respondent and the Tribunal by 22 July 2004. At that directions hearing, the Claimant applied for leave to amend his Originating Application to include additional complaints which had taken place since his Originating Application was presented. That application for leave was refused and the Chairman indicated that, if he wished to include new matters, then he should serve a fresh Originating Application.

5. On 16 July 2004, the Claimant presented to the Tribunal his second Originating Application, complaining of race discrimination and victimisation, and referring in the main to events taking place during the summer months of 2004. So far as Ms Lewzey's Order for the Claimant to reply to the request for further information by 22 July 2004 was concerned, the Claimant in fact never provided such further particulars. The Respondent continued to write to the Claimant with regard to those particulars but by October 2004 they had not materialised and the Respondent did not take the matter any further at that stage; in particular, because a further case management discussion was held on 5 October 2004 before Mr Pearl, by which stage of course the second Originating Application had seen presented. The Respondent had been intending to apply at that hearing for the claims to be struck out, but in the event, for reasons set out in the Case Management Discussion Order, did not pursue the application.

6. Mr Pearl consolidated the two complaints and ordered that they be tried together, commencing on 24 January 2005 with a time allocation of six days. He went on to make a number of Case Management Orders, including:

"1. That on or before 16 November 2004 each party shall prepare and supply to the other party a list of all documents which are or have been in their respective possession, custody or power relating to the matters in issue in each claim."

He drew to the parties' attention the purpose of discovery and the fact that all relevant documents needed to be disclosed whether they were helpful to or adverse to a party's case.

"2. That the parties agree a trial bundle of documents for the purposes of the Hearing." and

"3. That on or before 17 December 2004 there should be simultaneous exchange of witness statements by each party providing to the other one copy of a witness statement for each of the witnesses that the party intended to call to give evidence at the Hearing."

7. The Case Management Discussion Order drew attention to the powers of the Tribunal to strike out or make Orders for Costs in the event of failure to comply with the Tribunal's Orders. The parties were accordingly aware of the importance of complying with the Tribunal's Orders. In this connection, it is right to note that, although the Claimant was representing himself, he is a claimant who has substantial previous experience of bringing Employment Tribunal proceedings and accordingly can be taken to be more familiar with the Tribunal's Rules of Procedure than many litigants-in-person. Furthermore, he was aware, by virtue of the Respondent's application to strike out his claims dated 29 July 2004 (which was not proceeded with), of the potential consequences of failing to comply with Tribunal Orders.

8. Mr Pearl having made his Case Management Orders on 5 October 2004, the Respondent sent to the Claimant its list of documents on 16 November 2004 (page 135). The Claimant did not respond in kind and on 6 December 2004 (page 138) the Respondent wrote to the Claimant pointing out that he was in breach of the Tribunal's Order and requesting his list of documents. He was reminded also in that letter of the deadline for exchange of witness statements.

9. On 16 December 2004 (page 121), the Claimant wrote to the Tribunal claiming that he was too distressed to meet the deadline for exchange of witness statements and asking that it be extended. He made no reference to his failure to comply with the Order for exchange of lists of documents. The Respondent consented to the extension of time for exchange of witness statements and the Tribunal extended time for exchange until 7 January 2005. In the meantime, on 30 December 2004 (page 145), the Respondent wrote to the Claimant pointing out that he had still not provided his list of documents, asking that he do so and indicating that, in the absence of the list, they would apply to the Tribunal for an Order.

10. Arrangements were made for the Claimant to visit the Respondent's solicitors' office on 7 January 2005 in order to effect disclosure of documents and to deal with exchange of witness statements. To an extent, exchange of witness statements took place although the Claimant refused to provide, for reasons which have never been explained to the Tribunal, signed copies of his and his witnesses' witness statements. However, the Claimant failed to provide on that date either a list of documents or copies of documents which he had been due to provide in the light of Mr Pearl's Order, by 16 November 2004.

11. Arrangements were made for him to attend the Respondent's solicitors' office again on 10 January 2005 in order to provide the documents. He failed to do so and the Respondent's solicitors then prepared a bundle for the Hearing which contained their documents and left a blank section at the back for the Claimant's documents to be inserted at a later stage. That bundle was provided to the Claimant and further arrangements were made for the Claimant to attend the Respondent's solicitors' office on 14 January 2005 for the Respondent's, solicitors to copy any documents in the Claimant's possession.

12. The Claimant attended the solicitors' office on 14 January 2005, according to the Respondent with the documents, but refused to allow the Respondent's solicitors to copy them. He has claimed at this Hearing that he was ill and that that was the reason why he could not allow the documents to be copied on 14 January, a reason which the Tribunal considers stretches the bounds of credibility, given that he had been well enough to attend the Respondent's solicitors' office on 14 January in the first place and that he had prepared in advance a letter dated 14 January (page 145B) which he handed to the Respondent's representatives and in which he indicated that, his documents being all originals, he would like to be present when they were copied. The Tribunal does not accept the Claimant's explanation for failure to allow the Respondent to copy the documents on 14 January or his contention that he had not taken the documents with him on that date. It is important to note that at no stage has the Claimant given any particulars of the illness which he claims he was suffering from on 14 January and no medical evidence has been placed before the Tribunal.

13. Arrangements were made for the Claimant to attend the Respondent's solicitors' office again on 18 January in order to allow disclosure of his documents and copying to take place. The Claimant did not attend on that date, telephoning to say that he was too ill but providing no particulars of that illness. In those circumstances, on 19 January 2005, the Respondent sent by fax to the Tribunal an urgent application for disclosure of the documents and for an Order that in default the claims be struck out on the date of non-compliance. That application (page 124C) was copied by the Respondent to the Claimant by courier on 19 January and the Respondent also telephoned the Claimant to notify him of the application, The application came before Mr Pearl, Chairman, on 20 January and he on that day made an Order that the Claimant should, by 4 p.m. on 21 January 2005, disclose his documents to the Respondent. He did not make an "unless" Order. Upon the instruction of Mr Pearl, the Claimant was telephoned on four occasions during the morning of 20 January by the Tribunal office to notify him of the Order and a note on the Tribunal file indicates that on each occasion a message was left on the Claimant's answer-phone. The Claimant contends that he was out all day on 20 January and did not receive any message in relation the Order dated 20 January and that the same did not come to his attention until 21 or 22 January. What is clear is that the Claimant failed to comply with Mr Pearl's Order of 20 January. Not only that but, having become aware of it on either 21 or 22 January as he contends, he did not take any steps to comply with it at a later stage.

14. On Monday 24 January, he attended at the Tribunal for the Hearing shortly before 10 a.m., at which time the Hearing was due to commence. He had in his possession at that stage some 50 or 60 pages of documents which he wished to rely upon which had not been copied for the use of the Tribunal or to serve copies on the Respondent, and his attendance was at such a time that there was no time for him to show those documents to the Respondent prior to the commencement of the Hearing. The Tribunal observes that at the very least, having become aware of Mr Pearl's Order of 20 January, it was incumbent upon him to attend the hearing centre at a much earlier stage on 24 January in order to show to the Respondent, before the time at which the Hearing was to commence, the documents in his possession. The Claimant never provided any explanation for failing so to do.

15. In addition, when he appeared at the Hearing on 24 January, the Claimant had with him one copy of his and his witnesses' signed witness statements. It was clear from a brief look at his witness statement by the Tribunal that he had added matters to that witness statement which were not in the draft witness statement provided to the Respondent earlier in January and he had made no attempt to serve that amended witness statement upon the Respondent, either before the day of the Hearing or on the day of the Hearing itself. Again, no explanation for that failure was provided by the Claimant to the Tribunal. His explanations, for his failures to comply with the Tribunal's Orders insofar as they were explanations, amounted to suggestions that he was ill on 14 January with no particulars provided; that he was in difficult financial circumstances and unable to provide copies of his documents (an explanation which the Tribunal finds it difficult to accept in view of the Respondent's offer to copy the documents themselves at their solicitors' offices and which was due to take place on several occasions earlier in January but which did not as a result of the lack of co-operation of the Claimant).

16. In addition, the Claimant appeared at the Hearing, saying that he had an audio tape of an incident which had occurred at his workplace which he proposed to play as part of the Hearing. That audio tape had never been disclosed to the Respondent. They were unaware of its contents, as they were of the contents of the documents which the Claimant brought to the Hearing. The Claimant's explanation, apart from those matters which have already been set out, amounted to a complaint that the submissions being made on behalf of the Respondent amounted to nothing more than "legal wrangling" and a suggestion that the Respondent's counsel and solicitors in connection with events which had taken place during January and the Tribunal staff in relation to the noting of the telephone calls made to the Claimant's home on 20 January amounted to lying.

4. Rule 18(7) in Schedule 1 to the Employment Tribunals (Constitution and Rules etc) Regulations 2004 provides:

Subject to paragraph (6) [which requires notice to be given], a chairman or tribunal may make a judgment or order –

…..

(c) striking out any claim … on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant … has been scandalous, unreasonable or vexatious.

5. 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 [2000] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] 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.
6. The employment tribunal's conclusions, having considered the applicable law, were these:

19.1 That there was in this case wilful and deliberate disobedience by the Claimant of the orders which were made for disclosure of documents. The lengthy period over which the Claimant was in breach of those Orders and his failure to show any degree of co-operation with those Orders and with the Respondent in order to avoid the problem of arriving at a merits hearing with large quantities of material which had not been disclosed to the Respondent make it plain to us that the Claimant has at all stages deliberately sought to withhold disclosure in an attempt not to co-operate with the Respondent or the Tribunal and for some tactical advantage to himself sought to keep up his sleeve his documents and the audio tape until the very day of the Hearing itself.

19.2 Equally, we are satisfied that the failures with regard to the Orders, for disclosure are but one example of the unreasonable conduct of the proceedings by the Claimant, otherwise evidenced by (a) his failure to comply with the Order for particulars made by Ms Lewzey, (b) his failure to effect proper exchange of witness statements by providing a signed copy of his witness statement, and (c) his appearance at the Hearing with an amended witness statement which he had made no attempt whatsoever to serve upon the Respondent. We are satisfied that at all stages the Claimant has pursued a course of brinkmanship. He undoubtedly has strong views about the behaviour of the Respondent and considers the Respondent's legal representatives' actions on their behalf to be merely "legal wrangling". But we are satisfied that there has been wilful and persistent disobedience of the Tribunal's Orders and a real failure on the part of the Claimant to comply with his obligation to assist the Tribunal in furthering the Tribunal's overriding objective of achieving justice between the parties.

7. They went on to consider the time and cost implications of nevertheless allowing the two applications to proceed, before concluding:

22. In all the circumstances, we consider that an Order striking out the Claimant's claims in the first two Originating Applications, draconian Order that it be, is the only proportionate and fair course to take in this case given that we do not consider that a fair trial is currently possible and, furthermore, having regard in particular to our finding that the Claimant has wilfully and deliberately on more than one occasion flouted the Orders of the Tribunal.

23. The Tribunal has reminded itself at all stages that an Order of strike out is an Order only to be adopted in exceptional circumstance's and where no other sanction can appropriately deal with any default on the part of the party in default. We also remind ourselves that, based upon our knowledge, there appears to be an increasing' culture developing of Tribunals making Case Management Orders which are not complied with and quite often flagrantly flouted by the parties. These are Orders which are made for the benefit of the parties in order to enable the proceedings to be properly prepared for hearing in an economic way. This case is in our view a particularly bad example of the flouting of the Tribunal's orders.

8. The EAT overset this decision on the ground that the tribunal had misapprehended the extent of Mr James' failures to comply with its orders, with the consequence – which seems to me unimpeachable if the premise was right – that a differently constituted tribunal ought to look at the matter again.
9. The principal misapprehension, as the EAT understood it to have been, was that the employment tribunal believed that Mr James had failed altogether to comply with the order made by Ms Lewzey on 24 June 2004 that Mr James should particularise his claim, when in reality he had (albeit probably outside the time fixed for it) served detailed further and better particulars of his case. The EAT put it thus (§8):

"The tribunal record that the claimant never did provide the particulars provided [sic] by Ms Lewzey. In fact that is incorrect as Mr Martin [counsel for Blockbuster] concedes. The position was that he did provide detailed further and better particulars."

They also (§39) took the view, contrary to that of the employment tribunal, that Mr James's failure to undertake a proper exchange of witness statements was "of marginal importance".

10. Blockbuster insist that their counsel made no such concession. All he conceded, we are told, was that some particulars were served in purported compliance with the order; but they were late, prolix and irrelevant to the elucidation of his claims. But the principal submission made by John Bowers QC for Blockbuster before this court is that, even if one leaves aside the question of due compliance with Ms Lewzey's order for particulars, the findings of the employment tribunal were such that they were still bound to strike out both Mr James' applications – 'bound' both in the figurative sense that they would inevitably have reached the same conclusion and in the legal sense that their other, unassailable, findings obliged them to strike out the claims. He also submits that, insofar as the further and better particulars matter, it is plain that they were neither adequate nor in time and that no concession, supposed or real, could have made them timeous or relevant.
11. Mr James in his skeleton argument and oral submissions has advanced a series of further grounds for oversetting the employment tribunal's decision: that it was perverse; that the tribunal was uninterested in his case and wanted to stifle it; that striking out was a disproportionate and unnecessary response even if there had been serial non-compliance; that Blockbuster's lawyers too had been in default; that the strike-out application was sprung on him at the last minute; and that Blockbuster would have faced no true difficulty in dealing with the documents in his late list. Many if not all of these arguments featured in his grounds of appeal to the EAT, but the only one which succeeded was the one on which Blockbuster now appeal to this court, and there is no respondent's notice asking us to uphold the EAT's decision on other grounds.
12. The nature of the further and better particulars which Mr James had been ordered by Ms Lewzey to serve is described in §4 of the tribunal's decision, quoted above. Although Ms Lewzey had before her a formal request from Blockbuster, her order was not framed in terms of the request. It was – in what must have been an endeavour to give Mr James as much leeway as reasonably possible – an order to "particularise his claim in such a way that the Respondent understands the claim against it". Mr James, in the belief, he says, that he was giving Blockbuster the particulars they required, set out almost ten pages of detailed factual allegations, most of which were capable of being allocated – albeit with difficulty – to the claims made in his originating applications. The particulars are dated 19 July 2004, a date within the time set by Ms Lewzey, although they appear not to have been filed until the first week of October 2004.
13. In these circumstances one can see why Blockbuster were unlikely to concede that there had been compliance, and for my part I am prepared to accept that there may have been a misunderstanding about this on the part of the EAT. But what is plain is that the employment tribunal were mistaken when they recorded in §5 that Mr James "never provided such further particulars". Mr Bowers submits that by "such" particulars the tribunal meant particulars complying adequately with Ms Lewzey's order. I am unable to accept this submission for two reasons. One is that the tribunal went on in that paragraph to make it clear that they did not think that any particulars had ever materialised. The other is that, if they had had Mr James' ten-page document in mind and had meant not merely to criticise it as inadequate but to reject it as a document of no substance at all, they would have had to say so and to explain why.
14. The EAT were therefore not in error in discerning this oversight in the employment tribunal's determination. But is Mr Bowers right when he submits that, even if one were to delete §5 from the tribunal's determination, the rest of it is so cogent that the same outcome would inevitably have been reached? I do not think so. At the case management discussion before Mr D.A.Pearl on 5 October 2004 no application was made for an order either that Mr James's particulars be supplemented or that they be struck out. Yet when the day of the hearing came and a strike-out was finally applied for, one of the things the tribunal held against him was his supposed defiance of Ms Lewzey's order for particulars.
15. They also held against him, as the EAT pointed out, a failure to undertake proper exchange of his amended witness statement, something which in the EAT's view was "of marginal importance compared with a failure to comply with the order for particulars" (§39).  The employment tribunal (§15) had taken a much more serious view of it than this, a view which an appellate tribunal would ordinarily respect. Mr James tells us, however, that the only changes he had made to his witness statement were to correct some typographical errors and to add a couple of lines. On asking to see the amended document, we learnt that neither side now has it. Mr Bowers, with the candour one would expect of him, accepted that the changes were "not major". Yet, as Brooke LJ pointed out, the tribunal were quite unspecific as to what it was that they found objectionable. To say, as they did, that it was clear from a brief look that he had added matters to it was to skate over something potentially critical. Serving a significantly different account of events on the day of the hearing may well make a fair trial impossible, at least without an adjournment. Serving a statement substantially the same as before but with one or more interpolations is quite different: the additional matter may be superfluous and able to be ignored; it may be relevant but able to be dealt with by the other party; it may be embarrassing and need to be struck out; but it is most unlikely to call for anything more drastic than one of these measures. There is nothing in the tribunal's determination to suggest that Mr James's amended statement was not in the latter category, and what we have been told by both parties suggests that it was.
16. The other last-minute elements for which Mr James was responsible were a long list of documents on which he wanted to rely and an audio-tape which he wanted to play. Mr Pearl had directed on 5 October 2004 that lists of documents were to be exchanged by 16 November and witness statements by 17 December. Unless there was consent or some other good reason for admitting the tape, the obvious answer was that Mr James could not use it. The great majority of documents in Mr James's list are documents in the possession of Blockbuster if of anyone. Here, too, a last-minute production of documents or a late demand for them faces a high risk of being refused if it cannot be conveniently accommodated within the trial window. It is only in an extreme case, however, that it will justify or even contribute to the justification of a striking out.
17. In my judgment, therefore, the EAT was right to intervene as it did. I would accordingly dismiss Blockbuster's appeal. But in the light of some helpful discussion which has taken place before us, I would wish to mention some additional matters of law and practice which may well arise on the remitted application to strike out the claims.
18. The first object of any system of justice is to get triable cases tried. There can be no doubt that among the allegations made by Mr James are things which, if true, merit concern and adjudication. There can be no doubt, either, that Mr James has been difficult, querulous and uncooperative in many respects.  Some of this may be attributable to the heavy artillery that has been deployed against him - though I hope that for the future he will be able to show the moderation and respect for others which he displayed in his oral submissions to this court.  But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably. It will be for the new tribunal to decide whether that has happened here.
19. In deciding this, the tribunal needs to have in mind that the application before it is one that was made, in effect, on the opening day of the six days that had been set aside for trying the substantive case. The reasons why this happened are on record and can be recanvassed; but it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing.
20. It is common ground that, in addition to fulfilling the requirements outlined in §5 above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was "the only proportionate and fair course to take". This aspect of their determination played no part in Mr James's grounds of appeal and accordingly plays no part in this court's decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us.
21. 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 [1992] 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 other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.

Lord Justice Wilson:

22. I agree.

Lord Justice Brooke:

23. I also agree.