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URL: http://www.bailii.org/nie/cases/NIIT/2010/7527_09IT_2.html
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7527/09
CLAIMANT: Linda Cass
RESPONDENTS: 1. AMT-SYBEX Ltd
2. John Murphy
3. Paul Reynolds
4. Tom Devlin
5. Brian Mitchell
DECISION
The decision is that the claimant has failed to actively pursue her claim.
An UNLESS Order will be issued to the claimant putting her on notice that UNLESS she informs the Secretary to the Tribunals and the respondents’ solicitor, in writing, by 9 November 2010, that she agrees the factual issues which the respondents’ solicitor sent to her on 21 April 2010 for her consideration or UNLESS she sends the Secretary to the Tribunals and the respondents’ solicitor an amended list of factual issues by 9 November 2010, her claim to the Tribunal will be struck out without further consideration of the proceedings and without further notice or Hearing, for failing to actively pursue it. A copy of the issues sent to the claimant by the respondents’ solicitor on 21 April 2010 is attached to the Unless Order.
If the claimant complies with the Unless Order by 9 November 2010, her claim will not be struck out. A further Hearing will take place on Friday 12 November 2010 at 10.00 am to:-
(i) finalise the factual issues and progress the case to hearing;
(ii) determine the respondents’ application for costs of:-
(a) the Case Management Discussion which took place on 2 August 2010; and
(b) this Pre Hearing Review which took place on 24 September 2010.
If the claimant does not comply with the Unless Order by 9 November 2010 her claim will be struck out without further consideration of the proceedings and without further notice or hearing and the hearing listed for 12 November 2010 will consider the respondents’ application for costs against the claimant in respect of:-
(a) the Case Management Discussion which took place on 2 August 2010; and
(b) this Pre Hearing Review which took place on 24 September 2010; and
(c) the cost of defending the claimant’s claim.
Constitution of Tribunal:
President (sitting alone): Eileen McBride
Appearances:
The claimant did not attend the Hearing. She sent a number of documents to the tribunal on 23 September 2010, the day before the Hearing, which were treated as written representations.
The respondents were represented by Mr P Sefton, Barrister-at-Law, instructed by Murphys Solicitors.
1. The issues to be determined at the Pre Hearing Review were:-
(1) Whether the claim should be struck out on the ground that the claimant has failed to actively pursue it.
(2) Whether the claimant should be ordered to make a payment in respect of the costs incurred by the respondent in this case.
2. Following a claim rejection review hearing, a decision was issued to the parties on 9 December 2009 accepting the claim in respect of the following complaints:-
(1) less favourable treatment of the claimant on the ground that the claimant is a part-time worker – Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, as amended;
(2) unlawful detriment under Regulations 7(2) and 7(3)(a)(i) of the said Regulations on the ground that the claimant has brought proceedings against the employer under the above Regulations; and
(3) unlawful deductions from wages.
3. On 6 January 2010, a response was received on behalf of the respondents resisting the claim and indicating that an Order for Costs would be sought in due course on the ground that the proceedings were frivolous and vexatious.
4. To progress this case to Hearing the Tribunal Office wrote to the claimant’s then solicitor and to the respondents’ solicitor on 9 March 2010 asking them to indicate the number of hearing days required. They were both informed that they could agree hearing dates and, if so, they should notify the Tribunal Office of the agreed dates by 23 March 2010. They were further informed that if they did not reply, it would be assumed that the case could be listed on any date.
5. By correspondence dated 18 March 2010, the respondents’ solicitor indicated that the week commencing 14 June 2010 would be the most suitable for the Hearing and they sought confirmation that the case could be listed during that week, as soon as possible, to enable them to retain counsel. The tribunal did not receive a reply to its letter of 9 March 2010 from the claimant’s then solicitor within the specified time.
6. The parties’ solicitors were therefore notified by correspondence dated 7 April 2010 that the President had directed that they liaise and provide:-
(i) an agreed list of legal and main factual issues to be determined at the Hearing; and
(ii) the number of witnesses;
to the tribunal by 21 April 2010, to enable the President to assess the number of hearing days required for listing purposes.
7. By correspondence dated 21 April 2010, the respondents’ solicitors sent the tribunal a copy of the list of the draft legal and factual issues which they had sent to the claimant on that same date for her views. The respondents’ solicitors’ correspondence of 21 April 2010 to the claimant stated:-
“Further to a letter received by us from the Tribunal, we attach for your attention the draft legal and factual issues we have extracted from the proceedings issued by you.
We would very much appreciate your co-operation in furnishing your view to us on the legal and factual issues, as we are required to provide these to the Tribunal as soon as possible.
Our Mrs Murphy was out of the jurisdiction on holiday when the letter arrived
in our office and we apologise for the short notice in this context.
We trust that you may well have thought of your own list of legal and factual issues, and in the event that you have done, we would welcome an opportunity to have sight of same. We are keen to comply with the President's wishes, so that an agreed list of legal and factual issues may be submitted at the earliest opportunity.
We look forward to hearing from either by phone, letter or email.”
8. By correspondence dated 26 April 2010, the claimant’s then solicitors acknowledged receipt of the tribunal’s correspondence of 7 April 2010 in the following terms:-
“We acknowledge receipt of your letter of 7th April 2010 and apologise for the delay in replying. We will revert to you within the next seven days in relation to your letter of 7 April 2010.”
9. By correspondence dated 27 April 2010, the claimant wrote to the President in the following terms:-
“I have been approached as you can see from the Respondent regarding your wishes. I have not received any request from you for any issues to date and i would ask could a copy of your request be sent to me so i can deal with it please.”
10. By correspondence dated 28 April 2010, the Secretary to the Industrial Tribunals wrote to the claimant in the following terms and attached related correspondence:-
“Your e mail of 27 April 2010 to the President in the above matter refers.
Can I firstly ask that, to avoid confusion, any correspondence in relation to such matters be addressed to the tribunal office or for the Secretary’s attention and not to the President directly.
The correspondence which the respondent’s representative is referring to is a letter dated 7 April 2010 from this office which was sent to your representative, Seamus McGranaghan at O’Reilly Stewart Solicitors. I have attached a copy of this correspondence and a holding response received from your representative for your information.”
11. By correspondence dated 28 April 2010, the claimant wrote to the Secretary of the Industrial Tribunals in the following terms:-
“Where is the copy of the response letter to that request from O’Reilly Stewart, not the apology?”
12. By correspondence dated 29 April 2010, the Secretary replied to the claimant in the following terms:-
“The tribunal office has not received anything further from O’Reilly Stewart on the matter. I am sorry that I did not make it clear in my letter.”
13. By correspondence dated 5 May 2010, the respondents’ solicitors wrote to the tribunal in the following terms:-
“Further to previous correspondence and in particular your letter dated 7 April 2010 and our letter of 21 April 2010 faxed to you, we regret that we have not yet heard from Mrs Cass in the context of her attitude towards the draft legal and factual issues presented to her.
In this context we will obviously keep you fully appraised.”
14. By correspondence dated 10 May 2010, the claimant wrote to the tribunal for the attention of the President in the following terms:-
“In response to the question of agreed legal and factual issues regarding this case I would like to inform you that the issues were already stated as part of case 07/08. The Chairman decided a cut off date of 15/12/07 which excluded the appeal process etc during the hearing. Time and expenditure he said where to be avoided at all costs, outlined by Lord Justice Girvan and yet this course of action was taken. Various arguments put before him by the Respondent’s who had obviously had a change of mind in including issues after 15/12/07 sealed this decision.
I therefore respectfully submit that there are no legal and factual issues to be agreed in relation to the appeals process etc and as this is really all the one case it may be more cost effective and less time consuming to all parties to have it all heard together at the Court of Appeal or as is in line with procedure.”
This correspondence was copied to the respondents’ solicitors on 13 May 2010 by the tribunal for their comments. On that same date the claimant was asked to direct all future correspondence through her then solicitors. By correspondence of the same date the claimant’s then solicitors were also asked to ensure that all future correspondence went through them to avoid confusion.
15. By correspondence dated 17 May 2010, to the Tribunal Office the respondents’ solicitor responded to the claimant’s correspondence of 10 May 2010 in the following terms:-
“We acknowledge safe receipt with thanks of your letter dated 13 May 2010.
We note the content of the enclosures, and in particular the letter from Mrs Cass, the Claimant, dated 10 May 2010. We trust this is the matter upon which you require our comment, as it was sent to the office under covering email dated 11 May 2010.
The Court of Appeal will, with respect, only be asked to deal with issues arising out of case ref 07/08, and will not be asked to deal with the subject matter of any other case. It is in those circumstances that we have created a list of legal and factual issues, which we sent to Mrs Cass on 27 April 2010 for approval or amendment. Any attempt on the part of Mrs Cass to raise issues outside the terms of the aforementioned earlier case will result in formal application having to be made by us for these matters to be excluded from consideration by the Court of Appeal. Clearly the Court of Appeal will not be in a position to consider issues which have not yet been litigated in the Tribunal.
We consider that the approach now being adopted by the Claimant in this matter is vexatious, and we are in the process of taking instructions from our client in this regard. The Claimant has issued these proceedings, and our client is required to defend its position in the face of further spurious allegations. This is a laborious and expensive task, and we would respectfully submit that Mrs Cass should not be permitted the opportunity to delay this litigation further.
We look forward to hearing from you by return.
Thank you.”
16. By correspondence dated 21 May 2010 the claimant’s then solicitor notified the tribunal that they were no longer acting on behalf of the claimant.
17. By correspondence dated 28 May 2010, the tribunal wrote to the claimant (and copied the correspondence to the respondents’ solicitors) in the following terms:-
“Please find enclosed copy correspondence dated 21 May 2010 received from O’Reilly Stewart Solicitors for your information.
The President of the Tribunals has now considered your correspondence dated 10 May 2010 and the respondents’ solicitor’s fax dated 17 May 2010 (copy of which I enclose).
In light of the contents of that correspondence, the President has directed that you provide the Tribunal with a copy of any appeal you have made directly to the Court of Appeal, in your previous case reference number 7/08, under the new procedure for appeals.
The new procedure applies to all appeals which had not been lodged with the Court of Appeal by 31 March 2010. The change in the procedure and the new procedure were set out in correspondence to you dated 7 and 22 April 2010 under case reference number 7/08 (I enclose copies for your attention). The President of the Tribunals will then be in a position to consider the appropriate way forward in your case.”
18. By correspondence dated 3 June 2010, the respondents’ solicitors wrote to the tribunal in the following terms:-
“We have been instructed by our above-mentioned client the Respondent that one of the issues raised by the Claimant in these proceedings has in fact been addressed and concluded. In this regard we would refer to the allegation that the Claimant suffered an unlawful deduction from her wages at the hands of the Respondent.
We understand that the pension provider has now addressed this matter to the satisfaction of all parties, and we would therefore ask that the Claimant should withdraw this element of her complaint.
In the event that the Claimant refuses to withdraw this aspect of the proceedings, use will be made of this correspondence to fix her with all costs incidental to and arising out of the Respondent’s further involvement in this element of her complaint.
We have copied the Claimant into this correspondence, and we look forward to confirmation of the position.”
19. By correspondence dated 7 June 2010, the claimant wrote to the Secretary to the Industrial Tribunals in the following terms:-
“Please inform the President that i am waiting on a final decision of legal aid which i hope to have within the next few weeks.”
20. By correspondence dated 8 June 2010, the tribunal wrote to the claimant and to the respondents’ solicitors in the following terms:-
“…..
The President of the Tribunals has directed that a case management discussion will take place on Monday 2 August 2010 at 10am to finalise the issues to be determined by the Industrial Tribunal in the claimant’s claim case reference no: 7527/09 and to fix a date for the hearing of that claim.
….”
21. By correspondence dated 10 July 2010 the claimant wrote to the President about her previous claim case reference number 07/08 and her present claim case reference number 7527/09. The Tribunal Office wrote to the claimant and to the respondents’ solicitors, at the President’s direction, on 21 July 2010. The Tribunal Office informed the claimant and the respondents’ solicitors that the first two paragraphs of the claimant’s correspondence of 10 July 2010 appeared to relate to her current claim case reference number 7527/09 and that the matters raised:-
“will be considered at the Case Management Discussion which has been arranged for 2 August 2010 at 10.00 am to finalise the issues to be determined by the tribunal in that case and to fix a date for Hearing.”
For reasons of confidentiality the claimant’s correspondence of 10 July 2010 was not copied to the respondent’s solicitors and the respondents’ solicitors were not made aware of the contents of the third paragraph. In relation to the fourth paragraph the respondents’ solicitor was informed that the claimant had stated that:-
“Legal aid is still outstanding and until resolved will deter this case from going forward. When I obtain legal aid I will hopefully be in a position to have someone attend hearings and address issues on my behalf.”
In response to that paragraph the Tribunal Office informed the claimant that this paragraph appeared to relate to her claim previous case reference number 07/08 and stated:-
“….You have indicated that legal aid is still outstanding, presumably in relation to your appeal, as legal aid is not available in the Industrial Tribunals and therefore the absence of legal aid does not affect the Case Management Discussion in your claim case reference number 7527/09 listed for 3 August 2010 at 10.00 am.”
The reference to 3 August 2010 rather than 2 August 2010, as set out at an earlier part of the letter of 21 July 2010 and in the letter of 8 June 2010 (referred to at paragraph 20 above) was an error and is dealt with at paragraph 24 below.
22. The claimant did not attend the Case Management Discussion on 2 August 2010 and Mr Sefton therefore applied for:-
(i) the claimant’s claim case reference number 7527/09 to be struck out for failing to actively pursue it; and
(ii) an Order for Costs against the claimant.
23. The President directed that this Pre Hearing Review should be listed to determine the issues set out at paragraph 1 and above. The President also directed that if the respondents’ application to have the claimant’s claim struck out for failing to actively pursue it was unsuccessful, the President would proceed to progress the claim to Hearing by finalising the issues to be determined, by assessing the number of days required for the full Hearing and by fixing dates for the full Hearing. The President further directed that the parties should therefore be in a position to deal with those matters at the Pre Hearing Review as well as the two issues set out above.
24. The reference to the 3 August as well as the 2 August 2010 in the tribunal’s letter of 21 July 2010 was not discovered until the morning of 3 August 2010 by which stage the Case Management Discussion which had been arranged for 2 August 2010 had already taken place. As the claimant had not attended the Case Management Discussion on 2 August 2010 and as she may have assumed that it was to take place on 3 August 2010 at 10.00 am, the respondents’ solicitor was requested to attend at 10.00 am on the morning of 3 August 2010 and did so. The claimant did not attend. The reference to the 2 and 3 August 2010 as the date of the Case Management Discussion was pointed out to Mr Kearney. He submitted that this Pre Hearing Review should proceed for the following reasons:-
(1) Although the letter of 21 July 2010 to the claimant created an ambiguity, it would have been easy for the claimant to have made a telephone call to the Tribunal Office, the staff of which are very approachable, to have the ambiguity clarified;
(2) not only did the claimant not do that but she did not attend the tribunal on either 2 August or 3 August 2010 for the Case Management Discussion.
25. The President decided that it was appropriate for this Pre Hearing Review to proceed for the following reasons:
(i) although the date of the Case Management Discussion was stated to be the 2 and 3 August 2010 in the letter of 21 July 2010 to the claimant, the claimant had already been notified of the 2 August 2010 date by correspondence dated 8 June 2010;
(ii) the claimant did not contact the Tribunal Office to clarify the date of the Case Management Discussion and she did not attend the Tribunal on either date.
The President had also directed that if the respondents’ application to have the claim struck out was unsuccessful at the Pre Hearing Review, the case would be progressed to Hearing by finalising the issues to be determined, by assessing the number of days required for the full Hearing and by fixing the dates for the full Hearing. The parties were informed that they should therefore be in a position to deal with those matters as well at the Pre Hearing Review
26. A detailed record of proceedings containing all the matters set out above together with the date of the Pre Hearing Review was sent to the claimant and to the respondents’ solicitor by e-mail and by post on 5 August 2010. On 10 August 2010 a Notice of Hearing was issued to the claimant, the respondents and the respondents’ representative confirming that the Pre Hearing Review was listed for 24 September 2010 at 10.00 am.
27. On 23 September 2010 the claimant sent a number of documents to the Tribunal which she wished to be treated as her representations at the Pre Hearing Review. These documents were copied to the respondents’ solicitor. On that same date, at the direction of the President, the Secretary wrote to the claimant in the following terms:-
“The President has had an opportunity to look at your documentation and is unclear as to its purpose. The President has directed me to make it clear to you that it would be important for you to attend tomorrow's PHR to consider whether the claim (case reference number 7527/09) should be struck out on the ground that the claimant has failed to actively pursue it and if not struck out, to progress matters to hearing. You should also be aware that, if you do not attend, the PHR will proceed in your absence and a notice may be issued warning you that your claim may be struck out for failure to actively pursue which could lead to your claim being dismissed. You should also be aware that an order for costs could be made against you.”
28. The claimant did not attend this Pre Hearing Review and Mr Sefton made the following submissions in support of the respondents’ application to have the claimant’s claim struck out for failing to actively pursue it.
(1) The Northern Ireland Court of Appeal in the case of James Robert Peifer –v- Castlederg High School and Western Education and Library Board made it clear that tribunals should exercise control over litigation robustly but fairly. While tribunals must give some latitude to personal litigants, the claimant is aware that legal aid is not available in industrial tribunals and her failure to appear is simply a tactic because she did not do that well when she did appear in a previous case.
(2) The decision of the Employment Appeal Tribunal in the case of Rolls Royce Plc –v- Riddle 2008 (IRLR) 873, makes it clear that there are two limbs under which a claimant’s claim can be struck out for failing to actively pursue it. The first limb is where there has been “intentional and contumelious” default by the claimant. The second limb is where there has been inordinate and inexcusable delay. The respondents contend that there has been intentional and contumelious default by the claimant in pursuing her claim (the first limb).
(3) The respondents recognise that it is a serious step for the tribunal to take to strike out a claim and that the tribunal should look carefully at all the facts before deciding whether or not to exercise its discretion to do so. Having done so, the respondents contend that the tribunal should be satisfied that this is a wholly exceptional case in which the manner of the claimant’s dealings in the case shows that she has disrespect and contempt for the tribunal.
(4) The claimant’s claim is unclear and has not been pursued by her in a way that the tribunal can determine. The respondents have complied with the tribunal’s directions dated 7 April 2010 requiring the parties to liaise and provide an agreed list of legal and main factual issues to enable the case to be progressed to a Hearing. The respondents’ solicitor did so on their behalf by sending the claimant a list of legal and factual issues on 21 April 2010 and by giving her the opportunity to express her views in relation to those issues.
(5) The claimant has failed to comply with the tribunal’s directions dated 7 April 2010. There was an exchange of correspondence culminating in a letter from the claimant to the tribunal dated 10 May 2010 in which the claimant stated that this case was really part of an earlier case and should therefore be heard by the Court of Appeal, with the appeal in that previous case.
(6) The respondents’ solicitor has pointed out in their letter of 17 May 2010 that this case has nothing to do with the Court of Appeal at this stage. Notwithstanding that, the legal and factual issues remain unresolved because the claimant has failed to engage with the respondents’ solicitor with regard to them.
(7) The tribunal then arranged a Case Management Discussion for 2 August 2010 to finalise the issues so that the case could be progressed to Hearing.
(8) By correspondence dated 10 July 2010 the claimant wrote to the tribunal and in that letter stated that:
“Legal Aid is still outstanding and until resolved will deter this case from going forward. When I obtain legal aid I will hopefully be in a position to have someone attend hearings and address issues on my behalf.”
The Tribunal Office made it clear to the claimant, by correspondence dated 21 July 2010, that “legal aid is not available in the industrial tribunals and therefore the absence of legal aid does not effect the Case Management Discussion” in this case.
(9) The claimant did not attend the Case Management Discussion on 2 or 3 August 2010.
(10) Not only did the claimant not attend the Case Management Discussion but she has failed to attend this Pre Hearing Review. The claimant e-mailed a number of documents to the tribunal on 23 September 2010, the day before the Pre Hearing Review. In one document the claimant stated:-
“I will not be attending the hearings on Friday 24th September as I have re-iterated before I have no confidence in the tribunal system.”
In another document the claimant asked for a “totally impartial chairman” and went on to state “I respectfully submit that although the President has not treated me badly i cannot attend any hearings without legal representation to do so”.
It is quite clear from those statements that the claimant does not intend to attend any further Hearings in relation to her case.
(11) It is neither for the respondent nor the tribunal to make the claimant’s case in her absence. Nor is it for the tribunal or the respondent to try to work out what the claimant considers the issues to be from the documents e-mailed by her to the tribunal. Even if it was, it is not possible to do so from those documents.
(12) The claimant has never informed the respondents that she intended to adopt the contents of her former solicitor’s letter of 15 March 2010 to her as her issues. That letter had never been copied to the respondents’ solicitor until the tribunal copied it on 23 September 2010, having received it from the claimant on that same date. Even if the claimant did intend to adopt the contents of that letter, the letter does not purport to identify the factual issues to be determined by the tribunal in this case.
The statutory provisions
29. Regulation 3(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Northern Ireland 2005 states that:-
3.—(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.
Regulation 3(2) states that:-
(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.
Regulation 3(3) states that:
(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, 3, 4, 5 and 6; or
(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.
Regulation 3(4) states that:
(4) The parties shall assist the tribunal or the chairman to further the
overriding objective.
30. Rule 18(7)(d) of Schedule 1 states:-
Subject to paragraph (6), a Chairman or tribunal may make a decision or order
(d) striking out a claim which has not been actively pursued.
Paragraph (6) provides:-
Before a decision or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The decision or order listed in paragraph (7) may be made at a pre-hearing review or a hearing under rule 26 if one of the parties has requested it. If no such request has been made such a decision or order may be made in the absence of the parties.
The legal principles
31. In the Peifer case Lord Justice Girvan stated, at paragraph 3 of his judgment:
“The overriding objectives, which are of course, always intended to ensure that justice is done, impel a tribunal to exercise its control over the litigation before it robustly but fairly. Tribunals can expect the appellate and supervisory courts to give proper and due weight to the tribunal’s decisions made in the fulfilment of their duty to ensure the overriding objectives. Tribunals should not be discouraged from exercising proper control of proceedings to secure those objectives through fear of being criticised by a higher court which must itself give proper respect to the tribunal’s margin of appreciation in the exercise of its powers in relation to the proper management of the proceedings to ensure justice, expedition and the saving of costs. Tribunals should be encouraged to use their increased costs power set out in Regulations 38 et seq of the Rules of Procedure to penalise time wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents. Tribunals should feel encouraged to set time limits and timetables to keep the proceedings within a sensible timeframe.”
At paragraph 4 Lord Justice Girvan stated:-
“When parties before the tribunal appear in person without the benefit of legal representation the lack of legal experience on the part of the unrepresented party may lead to the pursuit of irrelevancies and unnecessary length of proceedings. While tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased costs and be exposed to unstructured and at times irrelevant cross examination. While one must have sympathy for a tribunal faced with such a situation the tribunal remains under the same duty to ensure that the overriding objectives in Regulation 3 are pursued.”
32. In the Rolls Royce case the Employment Appeal Tribunal held that:-
“Where an application to strike out is made under rule 18(7)(d), the tribunal is required to begin by asking itself whether the claimant has failed to pursue his claim actively. It would not usually be difficult to conclude that where a claimant has failed to appear at a full hearing of which he has been notified, that amounts to a failure to pursue his claim actively. The tribunal is then required to ask itself whether, taking account of the whole circumstances, it ought to exercise its discretion so as to strike out the claim. The rule provides for a general discretion to strike out if the tribunal is satisfied that there has been a failure to pursue a claim actively.
The rule is not drafted so as to fetter the discretion that is conferred by any particular considerations. As with all exercises of discretion, it will be important to take account of the whole facts and circumstances including the fact that strike out is the most serious of sanctions.
Cases of failure to pursue a claim actively will fall into one of two categories:-
(i) where there has been “intentional and contumelious” default by the claimant; and (ii) where there has been inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would not be possible or there would be serious prejudice to the respondent.
These principles appear to have been identified because of two problems of which a failure to pursue a claim actively may be indicative. The first is that it is quite wrong for a claimant to fail to take reasonable steps to progress his claim, in a manner that shows that he has disrespect or contempt for the tribunal and/or its procedures. In that event, the question arises as to whether, given such conduct, it is just to allow the claimant to continue to have access to the tribunal for his claim. …”
Decision
33. The President and tribunal have a duty to deal with this case justly, at every stage of the proceedings, as required by Regulation 3(2). The parties also have a duty under Regulation 3(4) to assist them to do so.
34. In furtherance of that duty, on 7 April 2010, the President directed the parties to liaise and to agree the legal and main factual issues arising from the claim and response so that the case could be progressed to Hearing. The President made this direction because it is very important to have the issues identified prior to the Hearing to:-
(i) enable the parties to prepare properly for the Hearing;
(ii) enable the tribunal conducting the Hearing to “exercise its control over the litigation before it robustly but fairly”; and
(iii) enable the tribunal to manage the proceedings properly at the Hearing to “ensure justice, expedition and the saving of cost.”
35. The President is satisfied that the respondents complied with the President’s direction by preparing a list of legal and factual issues and by sending them to the claimant for comment on 21 April 2010.
36. The President is not satisfied that the claimant made any reasonable attempt to liaise with the respondents’ solicitor to agree or to amend those issues, particularly the factual issues.
37. In pursuance of Regulation 3, the President then directed that a Case Management Discussion be listed for 2 August 2010 so that the issues could be finalised at the Case Management Discussion so that the case could be progressed to Hearing.
38. The claimant did not attend that Case Management Discussion. This Pre Hearing Review was then arranged to consider the respondent’s application to strike out the claimant’s claim for failing to actively pursue it together with their application for costs. The parties were notified that the Pre Hearing Review had been listed for 24 September 2010 in the record of proceedings which was issued to them on 5 August 2010 and in the Notice of Hearing which was issued to them on 10 August 2010. The parties were also notified in the record of proceedings that if the respondents’ application to have the claim struck out was unsuccessful, the case would then be progressed to Hearing at the Pre Hearing Review by finalising the issues to be determined, by assessing the number of days required for the full Hearing and by fixing the dates for the full Hearing.
39. On 23 September, the day before the Pre Hearing Review, the claimant e-mailed a number of documents to the tribunal as her submissions for the Pre Hearing Review. Having considered the documentation, the President directed the Secretary to the Tribunals to seek clarification in relation to the documentation. The claimant replied in the following terms:-
“In response to your questions i would like to state the legal services letter relates to both cases. The letter to the President regarding costs accompanies it. The rest of the letters refer to Case 7527/09. In the interest of transparency and justice would it not be fairer and just to have a totally impartial Chairman sit at this meeting? …..
I respectfully submit that although the President has not treated me badly i cannot attend any hearings without legal representation to do so. If i had of had legal help i would not have been treated so badly.
Hence i have sent documents as my representation. I hope my views can be respected.”
The President also directed the Secretary to send the following e-mail to the claimant:-
“The President has had an opportunity to look at your documentation and is unclear as to its purpose. The President has directed me to make it clear to you that it would be important for you to attend tomorrow's PHR to consider whether the claim (case reference number 7527/09) should be struck out on the ground that the claimant has failed to actively pursue it and if not struck out, to progress matters to hearing. You should also be aware that, if you do not attend, the PHR will proceed in your absence and a notice may be issued warning you that your claim may be struck out for failure to actively pursue which could lead to your claim being dismissed. You should also be aware that an order for costs could be made against you.”
The claimant responded to that e-mail in the following terms:-
“The documentation i have sent is proof i have actively tried to settle this part of the case without the need to get to a hearing, but unfortunately that has not been the Respondent;s wishes. When Legal Aid is granted hopefully it will be heard along with case 07/08 at the Court of Appeal. I can do nothing until i receive legal help to represent me within a totally legal framework. The Chairman himself intimated by his comments i could not represent myself and to force me to do so would be morally wrong and an order for costs would be totally unjust.”
The President does not consider that it is reasonable for the claimant to expect the President to identify the factual issues in the case from the documents e-mailed by the claimant. Even if it is reasonable, the President has been unable to do so even when those documents are read in conjunction all the other documents in the case. The President has noted that the letter of 15 March 2010 from the claimant’s previous solicitor to the claimant does not set out the factual issues in the case.
40. In so far as the claimant failed to attend the Case Management Discussion and the Pre Hearing Review because she has not received legal aid to obtain legal representation, the President does not consider that that failure is reasonable given that it was made clear to the claimant that legal aid is not available for tribunal hearings.
41. In her letters of 22 and 23 September 2010 (for the attention of the President), the claimant stated that she would not be attending the Pre Hearing Review “as I have re-iterated before I have no confidence in the tribunal system.”
42. Having considered all the documents in the case, including the documents e-mailed by the claimant on 23 September 2010, together with Mr Sefton’s submissions at the Pre Hearing Review, the relevant statutory provisions and the principles of law set out above, I am satisfied that the claimant has failed to take reasonable steps to progress her claim to hearing. I am also satisfied that the manner in which the claimant has behaved, as set out above, shows a disrespect and/or contempt for the tribunal and its procedures and that it would not be just to allow the claimant to continue to have access to the tribunal for this claim. However, having regard to the fact that strike out is the most serious of sanctions, I am satisfied that the claimant should be given a further opportunity to either agree or to amend the list of factual issues which the respondents’ solicitor sent to her on 21 April 2010 for consideration.
An Unless Order will therefore be issued to the claimant with this decision putting her on notice that unless she informs the Tribunal Office and the respondents’ solicitor, in writing, by 9 November 2010, that she agrees the factual issues which the respondents’ solicitor sent to her on 21 April 2010 for consideration or unless she sends the tribunal and the respondents’ solicitor an amended list of factual issues by 9 November 2010, her claim will be struck out, without further consideration of the proceedings and without further notice or hearing for failing to actively pursue it.
43. If the claimant complies with the Unless Order by 9 November 2010, her claim will not be struck out. A further hearing will take place on Friday 12 November 2010 at 10.00 am to:-
(i) finalise the factual issues and progress the case to hearing;
(ii) determine the respondents’ application for costs of:-
(a) the Case Management Discussion which took place on 2 August 2010; and
(b) this Pre Hearing Review which took place on 24 September 2010.
44. If the claimant does not comply with the Unless order by 9 November 2010 , the claimant’s claim will be struck out without further consideration of the proceedings and without further notice or hearing and the Hearing listed for 12 November 2010 will consider the respondents’ application for costs against the claimant in respect of:-
(a) the Case Management Discussion which took place on 2 August 2010; and
(b) this Pre Hearing Review which took place on 24 September 2010; and
(c) the cost of defending the claimant’s claim.
______________________________________
E McBride
President
Date and place of hearing: 24 September 2010, Belfast
Date decision recorded in register and issued to parties: