Fair Employment Tribunal Northern Ireland Decisions

THE FAIR EMPLOYMENT TRIBUNAL

 

CASE REF: 84/14FET

2312/14

20/15FET

690/15

 

 

CLAIMANT: Paul James Conway

 

RESPONDENTS: 1. The Department of Justice

2. The Department of Finance & Personnel

 

 

 

Constitution of Tribunal:

 

President (sitting alone): Miss E McBride CBE

 

 

Appearances:

 

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by

Worthington Solicitors.

 

The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

 

 

DECISION ON A PRE HEARING REVIEW

 

 

The respondents' application for relief against the sanction of strike out for failing to comply with the Unless Order is granted but the respondents are ordered to pay the claimant's costs in respect of the Pre Hearing Review.

 

 

Reasons

 

The Issue

 

1. The issue to be determined at this Pre Hearing Review was whether the respondents' application for relief against the sanction of strike out for failing to comply with the Unless Order dated 30 June 2015 should be granted.

 

The claimant's claims and the respondents' responses

 

2. On 3 October 2014 the claimant, presented a claim which contained complaints in respect of equal pay and discrimination on the grounds of sex, religious belief, political opinion and age against both respondents which were denied by the respondents. On 12 November 2014 the claimant served an equal pay statutory questionnaire on the respondents in which he asked a number of questions and sought information and discovery. On 2 April 2015 the claimant presented a further claim containing a complaint of victimisation against the first respondent which was denied by the first respondent.

 

The first Case Management Discussion - 1 April 2015

 

3. At a Case Management Discussion on 1 April 2015:

 

(a) Mr O'Loan undertook to provide discovery of the 7 documents the claimant had sought at paragraph 6 of section 4 of his equal pay statutory questionnaire namely:

 

(i) NIO Core Competencies Framework for Grade A

 

(ii) NI Court Service Core Competencies Framework for Principal Legal Officer (Grade 7)

 

(iii) NICS Core Competencies Framework for Grade 7

 

(iv) PPS Job description for Senior Public Prosecutor (Grade A)

 

(v) PPS Job description for Senior Public Prosecutor (Grade 6)

 

(vi) PPS Job description for Senior Public Prosecutor (Grade 7)

 

(vii) NI Court Service Job Description for Principal Legal Officer (Grade 7 in the Lord Chief Justice's Office);

 

and any other documents the respondents considered relevant by 13 May 2015;

 

(b) the claimant was directed to provide the respondents with precise details of what his claims for equal pay and indirect discrimination on the grounds of sex, age and religious belief were by reference to the statutory definitions by 10 June 2015;

 

(c) the parties were directed to then liaise and to provide an updated statement of issues to the Tribunal by 24 June 2015;

 

(d) a further Case Management Discussion was arranged for 29 June 2015 to consider the issues to be determined in relation to the claimant's first claim.

 

4. By correspondence dated 8 June 2015 the claimant's Solicitors (who came on record for the claimant on 22 April 2015), informed the Tribunal that:

 

(i) apart from statistical information (which was provided on 27 May 2015 following a reminder from them dated 22 May 2015) Mr O'Loan had failed to comply with the undertaking he had given at the Case Management Discussion on 1 April 2015 to provide the claimant with the documents set out at paragraph 3(a) above;

 

(ii) they notified Mr O'Loan on 4 June 2015 that they were not in a position to fully particularise the claimant's case until Mr O'Loan had complied with his undertaking to the Tribunal which he had failed to do and that if he did not provide the documents by close of business on Friday 5 June 2015 they would have no alternative but to liaise with the Office of the Industrial Tribunals and make an application for Orders compelling service of same;

 

(iii) Mr O'Loan did not respond to their correspondence of 4 June 2015 and they therefore requested an urgent Case Management Discussion to facilitate an application for Orders or alternatively for their application to be addressed at the Case Management Discussion already scheduled for 29 June 2015.

 

The second Case Management Discussion - 29 June 2015

5. The parties were informed that these matters would be considered at the Case Management Discussion which had already been arranged for 29 June 2015.

 

6. At the Case Management Discussion on 29 June 2015, Mr O'Loan informed the Tribunal that:

 

(i) he had not provided discovery of the documents set out at paragraph 3(a) above because he had been overwhelmed by work in the recent past; and

 

(ii) he had agreed with Ms Bradley, Counsel for the claimant, that an Unless Order should be made against the respondents because it was accepted that without discovery of those documents the claimant could not have a fair hearing.

 

Mr O'Loan acknowledged that he understood the effect of an Unless Order namely that, if the relevant documents were not provided by the date stipulated in the Unless Order, the respondents' response would be struck out without any further notice, consideration or hearing. Mr O'Loan indicated that 10 July 2015 would give sufficient time for compliance. On that basis an Unless Order was made and issued to Mr O'Loan on behalf of the respondents on 1 July 2015, putting them on notice that unless they provided the 7 documents set out at paragraph 3(a) above by 10 July 2015 their response would be struck out without further consideration, notice or hearing. In addition an Order for Costs was made against the respondents, upon Ms Bradley's application and without objection from Mr O'Loan on behalf of the respondents.

 

7. On Friday 10 July 2015 Mr O'Loan e-mailed a bundle of documents to the claimant's solicitors. They were not received until Monday 13 July 2015 due to the July public holidays.

 

8. On 31 July 2015 the claimant's solicitors requested that the respondents' response be struck out on the ground that they had only been provided with the first three of the seven documents set out at paragraph 3(a) above and that the Unless Order had therefore been breached.

 

The third Case Management Discussion - 4 August 2015

9. The parties were informed that the matter would be considered at the Case Management Discussion which had already been arranged for 4 August 2015.

 

10. On 3 August 2015 at 16.37, Mr O'Loan sent the claimant's solicitor an e-mail with 24 pages of documents attached. A PPS job description for Senior Public Prosecutor (Grade A) dated 2008 was among the documents. It was the fourth of the seven documents, set out at paragraph 3(a) above. Mr O'Loan's e-mail commenced:

 

"I attach the following:

 

1. job description for PPS Senior Public Prosecutor. This job description was made in 2008 at the time when these posts were occupied by staff at Grade A. No new job description has been made since then."

 

 

11. At the outset of the Case Management Discussion on 4 August 2015, Ms Bradley made an application for the respondents' response to be struck out on the ground that the respondents had failed to comply with the Unless Order because four of the seven documents were still outstanding. Ms Bradley did not refer to Mr O'Loan's e-mail of 3 August 2015 or to the documents attached. Nor did Mr O'Loan refer the Tribunal to his e-mail of 3 August 2015 or to the fact that the fourth document was one of the documents attached to it. Instead he accepted that four of the seven documents, set out at paragraph 3(a) above, were still outstanding and that there had not therefore been full compliance with the Unless Order but he indicated that the respondents were resisting the claimant's application to strike out their response.

 

12. I pointed out to Mr O'Loan that the respondents had not made an application for relief from the sanction of strike out prescribed in the Unless Order. I also read relevant extracts from my decision in the McGuigan case following which Mr O'Loan stated that he had misunderstood the procedure. He then made an application on behalf of the respondents for relief from the sanction of strike out on the grounds that:

 

(i) there had been material compliance with the Unless Order;

 

(ii) the breach was not the fault of the respondents; and

 

(iii) the breach did not prevent the claimant from having a fair hearing.

 

Pre Hearing Review - 9 September 2015

13. A Pre Hearing Review was therefore arranged for 9 September 2015 to consider whether the respondents' application for relief against the sanction of strike out for failing to comply with the Unless Order should be granted. A further Order for Costs was also made against the respondents, upon Ms Bradley's application and without objection from Mr O'Loan on behalf of the respondents.

 

14. On 18 August 2015 Mr O'Loan e-mailed what he understood to be the seventh document, set out at paragraph 3(a) above i.e. a job description for a Principal Legal Officer (Grade 7) in the Lord Chief Justice's Office, to the claimant's solicitors but they did not receive it.

 

15. On 2 September 2015 the respondents' solicitor applied for a postponement of the Pre Hearing Review listed for 9 September 2015 on the ground that Mr Mulqueen, the respondents' Counsel, was involved in a part heard case on that date.

 

16. By e-mail dated 3 September 2015 the claimant's solicitors notified the Tribunal that:

 

(i) the claimant objected to the respondents' postponement application; and

 

(ii) that the fourth document had now been provided but that the fifth, sixth and seventh documents had still not been provided.

 

The fourth Case Management Discussion - 4 September 2015

 

17. A Case Management Discussion was therefore arranged for and took place on 4 September 2015 before Employment Judge Drennan QC to consider and determine the respondents' postponement application. The respondents were represented by Mr Mulqueen of Counsel and the claimant was represented by Ms Bradley of Counsel. Mr O'Loan's e-mail of 3 August 2015 was referred to and it transpired that there was a major difference between what Mr O'Loan had intended to convey by paragraph 1 of his e-mail (set out at paragraph 10 above) and how the claimant's solicitors had interpreted it. Mr Mulqueen accepted that paragraph 1 of Mr O'Loan's e-mail was not worded as clearly as it could have been and explained that Mr O'Loan had intended it to mean that job descriptions for Grade 6 and Grade 7 Senior Public Prosecutor posts did not exist and could not therefore be provided. Mr Mulqueen informed the Tribunal that Mr O'Loan would write to the claimant's solicitors to clarify what paragraph 1 of his e-mail was intended to mean.

 

18. It also transpired at the Case Management Discussion on 4 September 2015 that the claimant's solicitors had not received Mr O'Loan's e-mail of 18 August 2015 to which the seventh document was attached and a further copy was e-mailed to the claimant's solicitors on that same day.

 

19. Although Mr Mulqueen had stated that Mr O'Loan would write to the claimant's representative to clarify the respondents' position with regard to the intended meaning of paragraph 1 of Mr O'Loan's e-mail of 3 August 2015, Mr O'Loan wrote to the Tribunal on 7 September 2015, rather than to the claimant's solicitors. In his e-mail, which the tribunal office copied to the claimant's solicitors, Mr O'Loan stated:

 

"We refer to the claimant's letter to the Tribunal dated 3 ^rd September 2015.

 

That letter points out that a job description for PPS Senior Public Prosecutor Grade A had been provided, but that job descriptions for Senior Public Prosecutor Grade 6 and Senior Public Prosecutor Grade 7 have not been provided. We regret that our covering letter to the claimant's solicitor was not as clear as it could have been. There is only one document, not three separate documents. There therefore is only one document which may be discovered.

 

The same letter states that a job description for NI Court Service Principal Legal Officer, Grade 7 LCJ's office has not been provided. This was in fact provided by email dated 18 August 2015. Although that email was sent, it does not appear to have been received in the claimant's representative's inbox."

 

20. The claimant's solicitor replied to Mr O'Loan later that day in the following terms:-

 

"I have liaised with our IT provider, and having checked our system, there is no record of the email of 18 August being received or, in the alternative, stored in our system's cloud. They have suggested that you ask your IT provider to investigate this and that you and your PA, Brenda, ensure you have our correct email addresses saved to avoid a similar issue arising in the future.

 

In any event, having considered the documentation provided on Friday, the Job Description provided is for a lawyer within the 'Policy and Legislation Division' of Court Service - a position which the Claimant has not held since May 2007. The Claimant instructs that his work and responsibilities within the LCJ's Office are wholly different. Therefore, it is the job description in respect of the Claimant's present post, which he has held since May 2007, that is required.

 

I look forward to receiving same by return."

 

21. By e-mail dated 11 September 2015 Mr O'Loan replied:-

 

"We have checked and can confirm that correct email addresses were used. Might your system have rejected an email with a large attachment?

 

As regards the job description, it seems you are correct; the job description provided is the last one relevant to the claimant, and no written job description exists for the post presently held by him."

 

The relisted Pre Hearing - 14 September 2015 and 21 October 2015

 

22. Employment Judge Drennan QC postponed the Pre Hearing Review listed for 9 September 2015 and relisted it for 14 September 2015. It commenced on that date and was reconvened on 21 October 2015.

 

23. As set out at paragraph 1 of this decision the issue to be determined at the Pre Hearing Review was whether the respondent's application for relief against the sanction of strike out for failing to comply with the Unless Order dated 30 June 2015 should be granted.

 

 

The Relevant Statutory Provisions

 

24. Mr Mulqueen and Ms Bradley referred the Tribunal to Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 which provides:

 

"(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.

 

(3)  A tribunal or chairman shall seek to give effect to the overriding objective when it or he -

 

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2 and 3; or

 

(b) interprets these Regulations or any rule in Schedules 1, 2 and 3.

 

(4)  The parties shall assist the tribunal or the chairman to further the overriding objective."

 

25. Ms Bradley also referred the Tribunal to:

 

25.1 Rule 9 of Schedule 1 of those Regulations which provides:

 

"(1)  Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing.

 

(2)  Examples of orders which may be made under paragraph (1) are orders -

 

(a) as to the manner in which the proceedings are to be conducted, including any time limit to be observed;

 

(e) except where otherwise provided in these Rules, extending any time limit, whether or not expired;

 

(m) varying or revoking other orders;

 

(3)  An order may specify the time at or within which and the place at which any act is required to be done. An order may also impose conditions and it shall inform the parties of the potential consequences of non-compliance set out in rule 12.

(4) When a requirement has been imposed under paragraph (1) the person subject to the requirement may make an application under rule 10 (applications in proceedings) for the order to be varied or revoked."

 

25.2 Rule 10 which provides:-

 

"(1) At any stage of the proceedings a party may apply for an order to be issued, varied or revoked or for a case management discussion or pre-hearing review to be held."

25.3 Rule 12 which provides:-

 

"(1)  If a party does not comply with an order made under these Rules or a practice direction, a chairman or tribunal -

(a) may make an order in respect of costs or preparation time under rules 34 to 41; or

(b) may (subject to paragraph (2) and rule 18) at a pre-hearing review or a hearing under rule 22 [make a decision to strike out] (a) the whole or part of the claim or, as the case may be, the response and, where appropriate, [make a decision that a respondent] (b) be debarred from responding to the claim altogether.

(2)  A decision or order may also provide that unless the decision or order is complied with the tribunal or chairman may make a decision striking out the claim or, as the case may be, the response on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 18 or hold a pre-hearing review or a hearing under rule 22.

The Relevant Legal Principles

 

26. Mr Mulqueen and Ms Bradley provided skeleton arguments to the Tribunal in advance of the Pre Hearing Review and made oral submissions at the Pre Hearing Review. The Tribunal received evidence from Mr O'Loan, Solicitor, for the respondents as a result of an issue which arose during oral submissions. Further oral submissions were made following Mr O'Loan's evidence and the parties were given the opportunity to submit further written submissions in relation to another matter which arose during submissions. Ms Bradley provided a further written submission.

 

27. In support of his contentions on behalf of the respondents Mr Mulqueen referred the Tribunal to:

 

(1) paragraphs 629-675 of Section T of Division P1 of Harvey on Industrial Relations and Employment Law.

 

(2) Blockbuster Entertainment Ltd -v- James (2006) IRLR 630;

 

(3) Harris -v- Academies Enterprise Trust & Others (2015) IRLR 208 EAT;

 

(4) Laurence McGuigan -v- DJ Dickson Ltd CRN 1347/14;

 

(5) Thind -v- Salvesen Logistics Ltd UK EAT/0487/09; and

 

(6) Morgan Motor Company Ltd -v- Charles Morgan UK EAT/0128/15.

 

28. In support of her contentions on behalf of the claimant, Ms Bradley referred the Tribunal to:

 

(1) Riley -v- The Crown Prosecution Service (2013) IRLR 966;

 

(2) Marcan Shipping -v- Kefalas and Candida Corporation (2007) 1WLR 1864;

 

(3) EB -v- BA (2008) UK EAT/0139/08;

 

(4) McGuigan -v- D J Dickson Ltd CRN 1347/14IT;

 

(5) Smyth -v- Nixon (2013) NI Master 14;

 

(6) Paul Bradley -v- Chief Constable of the Police Service of Northern Ireland (decision of Master Bell dated 5.06.2015);

 

(7) Johnson (appellant) -v- Oldham Metropolitan Borough Council (respondent) UK EAT/0095/13/JOJ;

 

(8) Redhead -v- London Borough of Hounslow UK/EAT/0086/13 LA and UK/EAT/0026/14 LA; and

 

(9) Morgan Motor Company Ltd -v- Charles Morgan UK EAT/0128/15/DM.

 

29. Having considered Mr Mulqueen and Ms Bradley's skeleton arguments and oral submissions together with the relevant statutory provisions and authorities to which I was referred, I was satisfied of the following.

 

29.1 It was made clear by the Court of Appeal in 2007 in the Marcan case that:

 

(i) before making an Unless Order, "the Judge should consider carefully whether the sanction being imposed is appropriate in all the circumstances of the case ...". (Per Moore-Bick LJ at paragraph 36);

 

(ii) "the sanction embodied in an "unless" order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect ... the sanction prescribed by the order takes effect automatically as a result of the failure to comply with its terms. If an application to enter judgment is made under rule 3.5(v), (Civil Procedure Rules) the Court's function is limited to deciding what order should properly be made to reflect the sanction which has already taken effect. Unless the party in default has applied for relief, or the Court itself decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not arise. It must be assumed that at the time of making the order the Court considered all the relevant factors and reached the decision that the sanction should take effect in the event of default. If it is thought that the Court should not have made an order in those terms in the first place, the right course is to challenge it on appeal, but it may often be better to make all reasonable efforts to comply and to seek relief in the event of default" (Per Moore-Bick LJ at paragraph 34).

 

29.2 The phrase in "any material respect" was considered by Langstaff P (as he then was) in 2013 in the Johnson case. At paragraph 7 Langstaff P stated:

"The phrase used by Pill LJ in Marcan was, "..any material respect": I would emphasise the word "material". It follows that compliance with an order need not be precise and exact. It is agreed by counsel before me that Employment Judge Feeney in adopting a test of substantial compliance therefore adopted one in accordance with the law. I would make this comment however: "material" may be a better word than "substantial" in a case in which what is in issue is better particularisation of a claim or response. That is because it draws attention to the purpose for which compliance with the order is sought; that it is within a context. What is relevant, i.e. material, in such a case is whether the particulars given, if any are, enable the other party to know the case it has to meet or, it may be, enable the Employment Tribunal to understand what is being asserted. To use the word 'substantial' runs the risk that it may indicate that a quantitative approach should be taken: thus, where 11 matters must be clear to enable a party to deal fairly with a claim, of which 9 have been provided but not 2, which remain necessary, compliance has not materially been provided because the purpose of seeking compliance has not been achieved in the context; the other party still cannot obtain a fair trial. To adopt a quantitative approach may erroneously lead the Judge in such a case to conclude that there had been sufficient compliance (9 out of 11) even if the further particulars remained necessary before a fair trial could take place. Substantial compliance has thus in my view to be understood as equivalent to material compliance not in a quantitative but in a qualitative sense."

29.3 It was also made clear by the Court of Appeal in the Marcan case that:

 

(i) if a party who has failed to comply with an Unless Order wishes to escape its sanction he must apply for relief from the sanction in accordance with rule 3.8(i) of the Civil Procedure Rules which provides:

 

"Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction";

 

(ii) where an application for relief has been made by a party in default of an unless order, the Courts are required to consider the application in accordance with rule 3.9 of the Civil Procedure Rules which provides:

 

"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances including -

 

(a) the interests of the administration of justice;

 

(b) whether the application for relief has been made promptly;

 

(c) whether the failure to comply was intentional;

 

(d) whether there is a good explanation for the failure;

 

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;

 

(f) whether the failure to comply was caused by the party or his legal representative;

 

(g) whether the trial date or the likely trial date can still be met if relief was granted;

 

(h) the effect which the failure to comply had on each party; and

 

(i) the effect which the granting of relief would have on each party.

 

(2) An application for relief must be supported by evidence;"

 

(iii) the Court has jurisdiction to act of its own initiative, notwithstanding the wording of rule 3.8, if "the Court itself decides for some exceptional reason that it should act of its own initiative", (Per Moore-Bick LJ at paragraph 34) but "the jurisdiction is one which is likely to be exercised only rarely because it will usually be necessary for evidence to be placed before the Court to enable it to consider the various matters to which rule 3.9 refers" (Per Moore-Bick LJ at paragraph 33).

 

29.4 It was made clear by the EAT in a number of cases including the EB -v- BA (2008) case by Elias P (as he then was) and the Redhead (2013/14) case by Simler J (currently President), that an Unless Order made by an employment tribunal which provides for strike out in the event of non-compliance by a particular date has automatic effect on that date if there has been non-compliance in any material respect. It was also made clear that the authority for that, if necessary, is the Marcan case and that there are no exceptions to that rule.

 

29.5 It was made clear by the EAT in a number of cases including the EB -v- BA case that a lthough rule 3.8(1) of the Civil Procedure Rules (set out at paragraph 29.3(i) above) does not apply to employment tribunals, a similar procedure should be followed by employment tribunals. For example in the EB -v- BA case, Elias P (as he then was) referred with approval to paragraph 28 of the judgment of the EAT in Uyanwa-Odu and Adenram -v- Schools Offices Service and Caxton Islington Ltd UK EAT/0294/05, at which His Honour Judge Peter Clark, stated:

 

".... Following expiry of the time for compliance, the strike-out sanction takes effect. Thereafter it is open to the party in default to apply for a review of the strike-out judgment, coupled with an application to extend the time for compliance with the underlying order requiring him to do or not to do something".

 

29.6 It was made clear by the EAT in a number of cases including Maresca -v- Motor Insurance Repair Research Centre (2005) ICR 197 that although rule 3.9 of the Civil Procedure Rules (set out at paragraph 29.3(ii) above) does not apply to employment tribunals, they were nevertheless required to consider all the circumstances listed in rule 3.9 when determining applications for relief from an Unless Order sanction following a failure to comply with it. This approach was confirmed by Elias P (as he then was) in 2008 in the EB -v- BA case.

 

29.7 I n Governing Body of St Alban's Girls School and Another -v- Neary (2010) ICR 473 the Court of Appeal overruled the decisions of the EAT, (including the EB -v- BA case) in so far as they required employment tribunals to give specific consideration to all the circumstances listed at rule 3.9 of the Civil Procedure Rules, when determining applications for relief from an Unless Order sanction. At paragraph 47 Smyth LJ stated:

 

"I would accept (Counsel for the Respondents) submission that it should be inferred that Parliament deliberately did not incorporate CPR r3.9(1) into employment tribunal practice when it chose to incorporate the overriding objective. There is, to my mind, an obvious reason why Parliament did not do so. It has always been the intention of Parliament that employment tribunal proceedings should be as short, simple and informal as possible. We all know that that intention has not been fulfilled and employment law and practice have become difficult and complex. But where Parliament has apparently decided not to incorporate into employment tribunal practice a set of requirements such as those in CPR r3.9, I do not think it proper for the courts to incorporate them by judicial decision. It is one thing to say that employment tribunals should apply the same general principles as are applied in the civil courts and quite another to say that they are obliged to follow the letter of the CPR in all respects [emphasis added]. It is one thing to say that employment tribunals might find the list of CPR r3.9(1) factors useful as a checklist and quite another to say that each factor must be explicitly considered in the employment judge's reasons. I would overrule the line of Employment Appeal Tribunal authority which, in effect, requires specific consideration of all the CPR r3.9(1) factors on an application involving relief from a sanction in the employment tribunal;"

 

29.8 I n 2009 in the Thind case Underhill P (as he then was) stated, at paragraph 14, that the clarification brought about by the Court of Appeal in the Neary case was welcome as the law in this area had "become undesirably technical and involved." He also stated that the:

 

"law as it now stands is much more straightforward. The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal's procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts".

 

At paragraph 36 Underhill P went on to state:-

 

"I wish to close by emphasising, in case this judgment is referred to in other cases, that, as I have already observed, all these cases turn on their own facts. I certainly would not wish it to be thought that it will be usual for relief to be granted from the effect of an unless order. Provided that the order itself has been appropriately made, there is an important interest in employment tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible...";

 

29.9 The test/guidance laid down by Underhill P (as he then was) in 2008 in the Thind case was endorsed by Simler J (currently President) in 2013/14 in the Redhead case and more recently by Her Honour Judge Eady QC in 2015 in the Morgan case which was decided under rule 38 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations (2013) which do not apply in Northern Ireland. Rule 38(2) of the 2013 Rules in Great Britain requires tribunals to determine applications for relief from a strike out sanction made after default of an Unless Order has occurred in accordance with the interests of justice having regard to the overriding objective of the Regulations.

 

30. I am therefore satisfied that the test/guidance laid down by Underhill P (as he then was) in the Thind case is the appropriate test/guidance to follow in this case but that rule 3.9 of the Civil Procedure Rules still provides a useful checklist depending on the particular facts of each case.

 

31. I do not accept Mr Mulqueen's submission that there does not appear to be any difference between the Thind test and the test laid down by the Court of Appeal in 2008 in the Blockbuster case. That is because I am satisfied that, as was made clear by Simler J in the Redhead case (at paragraphs 43 and 44) the test in the Blockbuster case concerns a strike out application where an Unless Order has not already been made whereas the test in the Thind case concerns an application for relief from a strike out sanction where an Unless Order has already been made and has not been complied with.

 

32. I accept Ms Bradley's submission that the approach taken by Court of Appeal in 1997 in Hytec Information Systems Ltd -v- Coventry City Council (1997) 1 WLR 1666, which was described as "the most helpful approach to cases of non-compliance with Unless Orders" by Master McCorry in the Smyth -v- Nixon case (which involved an Unless Order that was made in High Court Civil proceedings) also provides a useful checklist for employment tribunals depending on the particular facts of each case. The approach was that:

 

"1. An unless order was an order of last resort, not made unless there was a history of failure to comply with other orders. It was the party's last chance to put its case in order.

2. Because it was the last chance, a failure to comply would ordinarily result in the sanction being imposed.

3. The sanction was a necessary forensic weapon which the broader interests of the administration of justice required to be deployed unless the most compelling arguments were advanced to exonerate the failure.

4. It seemed axiomatic that if a party intentionally flouted the order he could expect no mercy.

5. A sufficient exoneration would almost invariably require that he satisfied the court that something beyond his control had caused the failure.

6. The judge would exercise his judicial discretion whether to excuse the failure in the circumstances of each case on its own merits, at the core of which was service to justice.

7. The interests of justice required that justice should be shown to the injured party for procedural inefficiencies causing the twin scourges of delay and wasted costs. The public administration of justice to contain those blights also weighted heavily. Any injustice to the defaulting party, though never to be ignored came a long way behind the other two."

33. Ms Bradley referred the Tribunal to paragraphs 16 and 17 of the decision of the EAT in the Morgan case at which Her Honour Judge Eady QC quoted from Lord Neuberger's observations at paragraphs 23 and 24 of his judgment in Global Torch Ltd -v- Apex Global Management Ltd & Others (No2) 2014 1 WLR 4495 namely:

 

"23 ... The importance of litigants obeying orders of court is self-evident.

Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons. Of course, in a particular case, the court may be persuaded by special factors to reconsider the original order, or the imposition or enforcement of the sanction."

 

"24 In the present case ... there do not appear to be any special factors ...

Further, it is difficult to have much sympathy with a litigant who has failed to comply with an unless order, when the original order was in standard terms, the litigant has been given every opportunity to comply with it, he has failed to come up with a convincing explanation as to why he has not done so, and it was he, albeit through a company of which he is a major shareholder, who invoked the jurisdiction of the court in the first place."

 

Ms Bradley then referred to paragraph 18 of Her Honour Judge Eady QC's judgement in the Morgan case at which she stated:

 

"It is right to say that the order under consideration in Global Torch arose in the context of High Court proceedings and not in the ET, and the same considerations might not always apply, the Civil Procedure Rules not being expressly applied to proceedings of the ET, which are governed instead by the ET Rules (and see the observations of Langstaff P to this effect in Harris v Academies Enterprise Trust & Ors). That said, the approach to relief from sanction for non-compliance with an unless order is likely to give rise to very similar considerations. See per Underhill P (as he then was) in Thind v Salvesen Logistics...":

 

34. I accept that the observations of Lord Neuberger provide useful guidance however I do not accept that her Honour Judge Eady QC accepted that the observations of Lord Neuberger at paragraphs 23 and 24 of the Global Torch case have inserted a "special factors" requirement above and beyond the interests of justice test set out in the Thind case and incorporated in Rule 38(2) of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 which were in force when the Morgan case was being decided. That is because Her Honour Judge Eady QC went on to state, at paragraphs 34-37 of the discussion and conclusions section of her decision, that:

 

"34. The decision with which I am concerned is the determination of the

Claimant's application for relief from sanction under Rule 38(2) of the ET Rules. The test to be applied is whether such relief is in the interests of justice. The ET's application of that test - in deciding whether it should set aside the order dismissing the claim for failure to comply with an unless order - should have in mind the overriding objective. It is all, however, plainly a matter of judicial discretion ...

 

35. What then was the Employment Judge obliged to take into account here? What did the interests of justice entail?

 

36. In Thind, it was said this would be a broad assessment; the material factors will vary considerably, albeit they will generally include the reason for the default and whether it is deliberate, the prejudice to the other party and the question whether a fair trial remains possible. The fact that an unless order has been made was also said to be an important consideration, but it would only be one such consideration. That is obviously right: the whole point about relief from sanction in this context is that the operation of the unless order need not be determinative; it is possible that the earlier dismissal of the claim by operation of the unless order will be set aside.

 

37. Does there have to be some compelling explanation in order to obtain the relief from sanction? Does the Supreme Court's Judgment in Global Torch so prescribe? I do not read it as doing so in terms. It is one thing to say that the court will not have much sympathy for someone who has failed to come up with a convincing explanation but yet another to say that this will inevitably mean that he or she will fail to be afforded relief from sanction. Can a court only be persuaded by "special factors"? I do not read Global Torch as inserting this as a requirement above and beyond the interests of justice. While enforcement of the sanction might be "almost inevitable" without some compelling explanation or special factor, that again is not the same as being inevitable. ..."

Mr Mulqueen's submissions

 

35. Mr Mulqueen's submissions are summarised as follows.

 

35.1 Mr O'Loan has provided a significant number of documents to the claimant. The Unless Order was made following Mr O'Loan's failure to comply with an undertaking to provide seven specific documents (set out at paragraph 3(a) above). An Unless Order is normally an Order of last resort after a number of ways have been tried to get the documents. In this case the Unless Order was made after an undertaking had been breached but without an Order for Discovery having been made against the respondents. The respondents nevertheless accept that the Tribunal has power to make an Unless Order at any time and that it did have power to make the Unless Order in this case and that Mr O'Loan had agreed to it being made.

 

35.2 The respondents accept that the fact that an Unless Order was made will always be a consideration for the tribunal when determining the respondents' application for relief from the strike out sanction. However, each case should depend on its own facts and the fact that an Unless Order was made is no more than one consideration as no one factor will necessarily be determinative of the course which the Tribunal should take (paragraph 14 of Thind).

 

35.3 The respondents accept that the Unless Order was breached in that four of the seven documents had not been provided by the operative date namely 10 July 2015.

 

35.4 The breach was caused by the fact that Mr O'Loan was overworked and had not made his line manager aware of his situation or the breach until shortly before 3 August 2016. Once Mr O'Loan made his line manager aware of the position steps were put in place to assist him and the fourth document was sent to the claimant's solicitors on 3 August 2015 with an e-mail informing them that the fifth and sixth documents did not exist. While the e-mail was not worded as clearly as it could have been and while Mr O'Loan could be criticised for not referring to it or the fourth document at the Case Management Discussion on 4 August 2016, it was not raised by the claimant's Counsel either. If the claimant's Counsel had raised it there could have been discussion about what the e-mail meant and in particular that the fourth document was attached and that the fifth and sixth documents did not exist.

 

35.5 Following the Case Management Discussion on 4 August 2015 steps were put in place to obtain the seventh document from the first respondent and it was e-mailed to the claimant's solicitors on 18 August 2015. Mr O'Loan only discovered at the Case Management Discussion on 4 September 2015 that it had not been received and a further copy was e-mailed to the claimant's solicitors that same day.

 

35.6 Although it transpired that the job description provided was for the claimant's previous post and that what had been sought was the job description for the claimant's current post, that had not been specified in the claimant's equal pay statutory questionnaire or in the Unless Order. As soon as the claimant's solicitors notified Mr O'Loan on 7 September 2015 of the precise job description being sought, he contacted the first respondent and informed the claimant's solicitors on 11 September 2015 that the job description which had been provided was the last one relevant to the claimant and that no written job description existed for the post presently held by him.

 

35.7 In light of the circumstances set out above the respondents ask the Tribunal to accept that:

 

(i) the breach was not serious;

 

(ii) the breach was not deliberate and there was no attempt on the part of the respondents to interfere with or frustrate the Tribunal process.

 

35.8 The respondents accept that there was a delay of just over three weeks in making the application for relief but ask the Tribunal to accept that it was caused by Mr O'Loan being unaware of the appropriate process to follow and that it was not excessive. The respondents also accept that there was delay in providing the fourth document but ask the Tribunal to accept that it was neither excessive nor extreme and was not such as would prejudice the claimant. If the claimant suffered any prejudice by way of additional cost as a result of the Pre Hearing Review having to be arranged to consider the respondents' application for relief, it could be dealt with by way of an award of costs against the respondents, if the Tribunal sees fit.

 

35.9 The prejudice that would be caused to the respondents by denying them the opportunity to defend this complex case would far outweigh the prejudice to the claimant by the breach of the Unless Order and the delay in providing the one remaining document that existed and explanations for the non provision of the three documents which did not exist.

 

35.10 The respondents contend that only four of the seven documents existed and that three of those four documents had been provided within the time limit. Although the fourth document was not provided until just over three weeks later, it was provided at a time when the issues had not yet been agreed and the case had not yet been listed for hearing and a fair trial is therefore still possible.

 

Ms Bradley's submissions

 

36. Ms Bradley's submissions are summarised as follows.

 

36.1 The claimant lodged his claim which contains complaints of equal pay and discrimination in October 2014 and served an equal pay statutory questionnaire in November 2014.

 

36.2 At section 4(6) of his equal pay statutory questionnaire he sought general discovery and specific discovery of seven documents namely:

 

(i) NIO Core Competencies Framework for Grade A

 

(ii) NI Court Service Core Competencies Framework for Principal Legal Officer (Grade 7)

 

(iii) NICS Core Competencies Framework for Grade 7

 

(iv) PPS Job description for Senior Public Prosecutor (Grade A)

 

(v) PPS Job description for Senior Public Prosecutor (Grade 6)

 

(vi) PPS Job description for Senior Public Prosecutor (Grade 7)

 

(vii) NI Court Service Job Description for Principal Legal Officer (Grade 7 in the Lord Chief Justice's Office);

 

36.3 These documents had still not been provided to the claimant by the date of the Case Management Discussion on 1 April 2015 and Mr O'Loan undertook to provide them on behalf of the respondents to the claimant by 13 May 2015.

 

36.4 Mr O'Loan did not comply with that undertaking and at a Case Management Discussion on 29 June 2015, he indicated that it was because he was overworked. However, he accepted that the claimant could not receive a fair hearing without the documents and he agreed that an Unless Order should be made against the respondents with a compliance date of 10 July 2015.

 

36.5 The Unless Order was properly made with Mr O'Loan's consent on behalf of the respondents and it set out the consequences of non-compliance in clear and precise terms. The making of the Unless Order was not challenged by way of appeal.

 

36.6 The respondents failed to comply with the Unless Order by 10 July 2015 in material respects. That was because:

 

(i) only three of the seven documents had been provided;

 

(ii) the fourth document which did exist had not been provided; and

 

(iii) the respondents had failed to notify the claimant that the three remaining documents did not exist.

 

36.7 The respondents also failed to apply for a variation or revocation of the Unless Order or for an extension of time to comply with it by 10 July 2015. In those circumstances and in accordance with the decision of the Court of Appeal in the Marcan case which was followed by the EAT in the EB -v- BA and Redhead cases, the respondents' response was struck out with automatic effect on 10 July 2015.

 

36.8 It was only at the behest of the claimant's solicitors in their letter of 31 July 2015 that the matter came before the Tribunal again at the Case Management Discussion on 4 August 2015 after the breach had been confirmed and it was only at that Case Management Discussion, almost one month after the time prescribed by the Unless Order had expired, that the application for relief from the strike out sanction was made.

 

36.9 The Tribunal is required, when determining the respondents' application for relief to balance the reasons put forward by the respondents for breaching the Unless Order and the grounds they rely on to seek the relief against the entitlement of the claimant to have his case managed in a way so that it is properly prepared for hearing.

 

36.10 The explanation for the respondents' delay in making the application for relief from the strike out sanction was that Mr O'Loan did not understand the procedure for making an application which raises the inevitable question that if Counsel had been briefed since October 2014:

 

(a) why was the Unless Order made by consent at the Case Management Discussion on 29 June 2015; and

 

(b) why was the application for relief from sanction not made until during a Case Management Discussion on 4 August 2015 which had been requested by the claimant.

 

36.11 Although Mr O'Loan had sent an e-mail to the claimant's solicitors together with a number of documents on 3 August 2015, neither the claimant's Counsel nor solicitors were aware that the fourth document had been included or that Mr O'Loan was indicating that the fifth and sixth documents did not exist, particularly as there was no specific reference to those two documents in the e-mail. It was only at the Case Management Discussion on 4 September 2015 and in Mr O'Loan's correspondence of 7 September 2015 that it was made clear that the fifth and sixth documents did not exist and on 11 September 2015 that the seventh document did not exist. Although it was pointed out on the first day of the Pre Hearing Review (which took place on 14 September 2015) that, in November 2014, the claimant had provided discovery of the recruitment documentation for a Senior Public Prosecutor (Grade 7) post which had been advertised in May 2012, Mr O'Loan took no steps to go back to the Public Prosecution Service prior to the second day of the Pre Hearing Review (which took place on 21 October 2015) to ascertain if a job description did exist for that Grade 7 post.

 

36.12 The claimant accepted Mr O'Loan's evidence that the reason for the respondents' default was overwork on his part. The claimant also accepted Mr O'Loan's evidence that he only brought the fact that he was overworked to his line manager's attention on or shortly before 3 August 2015 and that the default on the part of the respondents was not therefore deliberate. Notwithstanding that the Tribunal had to determine whether the reason for the default was sufficient in accordance with the guidance of:

 

(i) the Court of Appeal in Hytec Information Systems Ltd -v- Coventry City Council (1997) 1 WLR 1666 i.e. that the default had to have been caused by something beyond the parties' control; and

 

(ii) the Supreme Court in Global Torch Ltd -v- Apex Global Management Ltd & Others (No2) (2014) 1 WLR 4495 i.e. that the reason had to amount to special circumstances.

 

36.13 Although the default was not deliberate, it was nevertheless serious. That was because Mr O'Loan had accepted as far back as the Case Management Discussion on 29 June 2015 that without the documents the claimant could not have a fair hearing. Mr O'Loan had first raised the fact that he was overworked at the Case Management Discussion on 29 June 2015. It was at that same Case Management Discussion that he agreed to the making of an Unless Order on behalf of the respondents with a compliance date of 10 July 2015. Although Mr O'Loan was aware of the obligation to provide those seven documents by 10 July 2015, he made no attempt to contact the Public Prosecution Service or the first respondent to obtain them by that date.

 

36.14 Without discovery of the seven documents, there was an obvious prejudice to the claimant in resisting the grounds relied upon by the respondent to defend his equal pay and discrimination claims. That was because the claimant was relying on the persons at Senior Public Prosecutor Grades 6 and 7 as his comparators and could not advance his contentions until he had seen those job descriptions.

36.15 The respondents' failure to provide the documents by 10 July 2015 i.e. the date provided in the Unless Order, has put the claimant to the expense of a two day Pre Hearing Review which would not otherwise have been required.

 

36.16 Although the claimant does not contend that a fair trial is no longer possible, it was made clear by Underhill P (as he then was), at paragraph 36 of the Thind judgment that:

 

"Provided that the order itself has been appropriately made, there is an important interest in employment tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible."

 

Decision

 

37. I am satisfied that the respondents have provided a substantial amount of discovery to the claimant in this case. However I am also satisfied that before the Unless Order was made there was a history of the respondents failing to provide the claimant with the seven documents set out at section 4(6) of the claimant's equal pay statutory questionnaire dated November 2014 which, if they existed, were very material as they were necessary to enable the claimant to establish his equal pay claim and to ascertain the case being made by the respondents and in particular to ascertain what case the respondents were making to distinguish the claimant from his comparators.

 

38. I have reached that conclusion because:

 

(i) the documents had been sought initially in November 2014 by way of the claimant's statutory questionnaire;

 

(ii) they had not been provided to the claimant by 1 April 2015 when the first Case Management Discussion took place;

 

(iii) although Mr O'Loan gave an undertaking on behalf of the respondents at the Case Management Discussion on 1 April 2015 that the documents would be provided to the claimant by 13 May 2015, they were still not provided;

 

(iv) although an Order for Discovery had not been made against the respondents before the Unless Order was made, that was because Mr O'Loan indicated at the second Case Management Discussion on 29 June 2015 that he had agreed with Ms Bradley that an Unless Order should be made against the respondents because it was accepted that the claimant could not receive a fair hearing without discovery of those documents;

 

39. An Unless Order was therefore made and issued to Mr O'Loan on behalf of the respondents on 1 July 2015 with a compliance date of 10 July 2015 which Mr O'Loan indicated would give sufficient time for compliance.

 

40. I am satisfied that the respondents failed to comply with the Unless Order in a number of material respects by 10 July 2015. That is because only three of the seven documents were provided by that date and no explanation was given for not providing the four remaining documents by that date.

 

41. As no application had been made for relief from sanction by way of a variation or revocation of the Unless Order or for an extension of the time limit for compliance by 10 July 2015 and as I was unaware of any exceptional reason which would lead me to grant relief on my own initiative, I am satisfied that, in accordance with the Court of Appeal decision in the Marcan case and the EAT decisions in the EB -v- BA and Redhead cases, the strike out sanction prescribed by the Unless Order took effect automatically on 10 July 2015.

 

42. Mr O'Loan made an application for relief from the effect of the Unless Order sanction at the Case Management Discussion on 4 August 2015.

 

43. In determining that application, I have had regard to the test and guidance provided by the EAT in the Thind case i.e. whether it would in the interests of justice and the overriding objective to grant the respondents relief from the strike out sanction notwithstanding the breach of the Unless Order. I have also had regard to the guidance provided by rule 3.9 of the Civil Procedure Rules and the guidance provided by the other cases referred to at paragraphs 29-34 above.

 

44. On the one hand:

 

(i) the Unless Order was made because the respondents had failed to provide the claimant with the seven material documents, notwithstanding that the claimant had been asking for them since November 2014, by way of his statutory questionnaire and notwithstanding that Mr O'Loan had undertaken, on behalf of the respondents on 1 April 2015, to provide them by 13 May 2015;

 

(ii) the Unless Order was made in clear and precise terms;

 

(iii) the Unless Order put the respondents squarely on notice of the importance of complying with it and the consequences if they did not do so;

 

(iv) Unless Orders are an important part of the tribunal's procedural armoury and must be taken very seriously;

 

(v) the effectiveness of Unless Orders will be undermined if tribunals are too ready to set them aside;

 

(vi) provided that the Unless Order was appropriately made, there is an important interest in employment tribunals enforcing compliance and depending on the facts of a particular case it may well be just to strike a claim or response out even though a fair hearing would remain possible;

 

(vii) the failure to comply with the Unless Order has led to a delay in the progress of the claimant's case to Hearing; and

 

(viii) the application for relief from the strike out sanction was not made until 4 August 2015, over three weeks after the Unless Order had taken effect.

 

45. On the other hand:

 

(i) the fact that an Unless Order was made, while important, is only one factor to be considered and is not determinative of the application;

 

(ii) I accept Mr O'Loan's unchallenged evidence that the reason for the respondents' failure to comply materially with the Unless Order by 10 July 2015 was because he had become increasingly overwhelmed by his workload following the undertaking he had given on 1 April 2015 to the extent that he found it difficult to deal with matters or make decisions and because he did not have sufficient time to check whether the seven documents were included in the documents he was e-mailing to the claimant's solicitors on 10 July 2015;

 

(iii) I accept Mr O'Loan's unchallenged evidence that the respondents were unaware of the breach. That was because Mr O'Loan did not communicate his difficulties to his line manager until shortly before the Case Management Discussion on 4 August 2015 as he was worried that it could reflect poorly on him and because he had hoped that his problems would have been temporary and that he would have got through them. I am therefore satisfied that in this case the failure to comply with the Unless Order and the delay in seeking relief from the strike out sanction was due to the respondents' legal representative and not the respondents and that it occurred without their knowledge or instruction;

 

(iv) the fact that Mr O'Loan did not indicate, at the Case Management Discussion on the 4 August 2015, that he had e-mailed the fourth document to the claimant's solicitors during the late afternoon of 3 August 2015 or that he had informed them in his e-mail of 3 August 2015 that the fifth and sixth documents did not exist supported Mr O'Loan's evidence. In addition, the way Mr O'Loan drafted paragraph 1 of his e-mail of 3 August 2015, which was understandably not interpreted by the claimant's solicitors as Mr O'Loan had intended, also supports his evidence;

 

(v) I accept Mr O'Loan's evidence, which was challenged, that as soon as Mr O'Loan informed his line manager of his situation, (shortly before the Case Management Discussion on 4 August 2015), steps were put in place to assist him in that a solicitor from another division of the Departmental Solicitor's Office was sent to support him. Relying on her solicitors' note of the Case Management Discussion on 4 August 2015, Ms Bradley had put it to Mr O'Loan in cross-examination that he had indicated at the Case Management Discussion on 4 August 2015 that steps had "not" been put in place to assist him after he had informed his line manager of his situation. Having checked my own notes of that Case Management Discussion and having listened to the audio recording, I am satisfied that Mr O'Loan had stated at the Case Management Discussion on 4 August 2015 that, having informed his line manager of his difficulties steps were "now" being put in place to help him. It was also clear from my own notes and from the audio recording that the claimant's line manager who had attended the Case Management Discussion on 4 August 2015 with Mr O'Loan indicated that now that she was aware of the situation, additional support was being put in place to ensure that the outstanding documentation would be provided;

 

(vi) although Mr O'Loan had not referred to it at the Case Management Discussion on 4 August 2015, I accept his evidence that he had discovered, after 10 July 2015, that he had the fourth document before the 10 July 2015 but that he had failed to include it with the documents which had been sent to the claimant's solicitors on 10 July 2015.

 

I accept Mr O'Loan's evidence that he contacted the PPS between 10 July 2015 and 3 August 2015 to ascertain if they had the fifth and sixth documents, namely job descriptions for Senior Public Prosecutor Grades 6 and 7 posts and that he was informed that there were no job descriptions in which Senior Public Prosecutors were referred to as Grade 6 or Grade 7. I also accept Mr O'Loan's evidence that he was informed by the PPS that the reason for that was because, although all Grade A Senior Public Prosecutors had had their grade changed on devolution of justice in April 2010 from A to either 6 or 7, the job of Senior Public Prosecutor itself had not changed post devolution.

 

In addition I accept Mr O'Loan's evidence that that is what he was trying to explain to the claimant's solicitors, albeit unclearly, in his e-mail of 3 August 2015 to which the Grade A job description was attached together with other documents which were not the subject of the Unless Order.

 

In light of that evidence I accept that the default is not as serious as it initially appeared to be particularly as the claimant had received the Grade A job description on 3 August 2015.

 

In addition, in light of that evidence, I do not consider that Mr O'Loan can be faulted for not going back to the PPS to check again if they had job descriptions for Senior Public Prosecutor Grades 6 and 7 posts after the May 2012 recruitment package for a Grade 7 Senior Public Prosecutor post which had been provided to the respondents on discovery in November 2014, was shown to him in cross-examination;

 

(vii) I am satisfied that although the breach of the Unless Order has led to delay, the delay caused by the breach has not been excessive nor extreme; and

 

(viii) Ms Bradley very fairly accepted that a fair Hearing is still possible notwithstanding the breach. I am satisfied that because a hearing date had not been fixed and because the documents which did exist have now been provided and because an explanation has been provided for those documents which do not exist a fair Hearing is still possible. I am also satisfied that the prejudice that would be caused to the respondents by denying them the opportunity to defend this complex case would outweigh the prejudice caused to the claimant by the breach of the Unless Order, by the delay in providing the one remaining document that existed and by the delay in informing the claimant that the three outstanding documents did not exist.

 

46. Having considered and the claimant's application in accordance with the interests of justice and the overriding objective of dealing with cases justly and, in particular, having considered and balanced the matters set out above, I am satisfied that the respondents should be granted relief from the effects of the strike out sanction which took place automatically on 10 July 2015 when they failed to comply with the Unless Order in material respects.

 

47. I consider that notwithstanding his situation, Mr O'Loan could reasonably have been expected to have applied for an extension of the time limit to comply with the Unless Order, notwithstanding his situation, and that but for that failure the Pre Hearing Review would not have been required. In those circumstances I am satisfied that the respondents should be ordered to pay the claimant's costs in respect of the Pre Hearing Review and so order. If the parties are unable to agree the amount of costs that matter can be referred back to the Tribunal.

 

 

 

 

 

 

 

 

 

______________________________________

E McBride CBE

President

 

 

 

Date and place of hearing: 14 September 2015 and 21 October 2015, Belfast.

 

Date decision recorded in register and issued to parties: