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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Voveryte v Jacqueline Chivers [2011] NIIT 00260_10IT (05 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00260_10IT.html
Cite as: [2011] NIIT 00260_10IT, [2011] NIIT 260_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 260/10
CLAIMANT: Sigita Voveryte
RESPONDENT: Jacqueline Chivers
DECISION ON AN APPLICATION FOR REVIEW
Further to the Strike Out Notice issued to the respondent and her representative on 15 July 2011, the Chairman has determined that the respondent’s application for a review of the Tribunal’s decision should be struck out under Rule 18 (7) (d) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that the respondent has not actively pursued her application for a review and there is no reasonable prospect of the review being heard in the foreseeable future.
Accordingly, the respondent’s application for review is HEREBY STRUCK OUT and the Tribunal’s decision issued to the parties on 22 June 2010 stands.
Constitution of Tribunal:
Chairman (sitting alone): Ms J Turkington
HISTORY OF THE REVIEW APPLICATION
1. On 15 July 2011 a Notice was issued to the respondent and her representative indicating that the Chairman was proposing to make a decision to Strike Out the respondent’s review application. The Chairman was proposing to make the said decision in light of the history of the review application as outlined in the Schedule attached to the Notice. This Notice and Schedule are annexed to this decision. The respondent was given to 12 August 2011 to submit written reasons why her review application should not be struck out or to request a hearing so reasons could be given orally.
2. Since this Notice was issued, the history of this matter is as follows:-
a. On 29 July 2011, the respondent wrote to the Office saying that she wished to request a hearing on 12 August and to bring a detailed consultant report in relation to her condition and treatment.
b. On 3 August 2011, the Office wrote to the respondent’s representative indicating that, in light of the points made in the respondent’s letter of 29 July 2011, a further CMD would be held to consider:-
1. Whether the respondent’s review application should be struck out as proposed in the Notice; and
2. In the event that the review application is not struck out, how this case can be progressed towards a final conclusion without further delay.
This CMD was to be held on 5 September 2011. Any medical evidence was to be submitted in advance of the CMD so it could be considered by the Chairman.
c. On 5 August 2011, the respondent submitted a letter from her consultant dated 29 July 2011. This letter confirmed that the respondent has a diagnosis of Bipolar Affective Disorder which impacts on her mood, thinking and behaviour. The letter also confirmed that the respondent attends the psychiatric outpatients’ clinic regularly and is also seen by a Mental Health Social Worker. The respondent had a more intensive period of treatment with the Home Treatment Team from 7 April to 25 May 2011. At that time, her presentation included poor self-care and chaotic lifestyle.
d. Following receipt of the letter from the respondent’s Consultant, the Office wrote to the respondent’s representative reminding him that the Chairman had previously directed that any medical report from the respondent’s Consultant must address the question of the prognosis in terms of the respondent’s fitness to attend a review hearing. It was noted that the report submitted had failed to address this issue which would be relevant in the event that the Chairman decided that the review application should not be struck out.
e. The CMD proceeded on 5 September 2011. Neither the respondent nor her representative attended the CMD. No further medical evidence was submitted in advance of the CMD. The claimant attended the CMD. The Claimant outlined her contentions in relation to the respondent’s review application. She noted that the review application had been outstanding for a very long time. The claimant had attended a number of hearings and CMDs which the respondent had failed to attend. This had caused the claimant considerable inconvenience. The claimant believed that the respondent was “messing both the claimant and the tribunal about”. She was anxious for the matter to be brought to a final conclusion.
f. On 13 September 2011, the Office wrote to the respondent’s representative offering one final opportunity to give reasons why the review should not be struck out. This could include the submission of further medical evidence. In addition, a further CMD would be convened for Monday, 3 October 2011, but would proceed if and only if the respondent’s representative confirmed in writing in advance of that date that he and/or the respondent would attend the CMD. No such confirmation was received and this proposed CMD was therefore cancelled.
g. On 21 September 2011, the respondent submitted a letter from her Community Mental Health Social Worker. This indicated that the respondent was referred to the Community Mental Health Team in January 2011. The Social Worker also indicated that the respondent “appears to have symptoms of bipolar disorder. Her present mental health is fragile and she appears unable to cope with major stressors in her life without support. Any proceedings could lead to further deterioration in the respondent’s mental state.”
h. The Office replied to the respondent’s representative by letter dated 5 October 2011 again pointing out that this correspondence from the Mental Health Social Worker failed to address the prognosis in terms of the respondent’s fitness to attend a review hearing. It was noted that the respondent was due to attend with her Consultant on 11 October 2011 and it was confirmed that the Chairman would defer the decision whether or not to strike out the review application until 21 October to allow a further opportunity for a comprehensive report from the Consultant to be submitted. It was indicated that the decision in relation to the review application would be taken thereafter without further notification to the parties.
i. Further correspondence was then received from the respondent dated 20 October 2011. This indicated that she had not attended the appointment with her Consultant as she had been very unwell. The respondent said that it was important to have the CMD heard in the near future and that she wanted to work with the Chairman to restore this and have a date in the next month or so. The respondent also referred to consulting with her Consultant to have the information required for the Chairman and would forward this on and have the hearing in the near future months.
j. At the date of this decision, no further correspondence or medical evidence has been received from the respondent or her representative.
Analysis
3. Since September 2010 when the tribunal confirmed that the respondent’s review application could proceed to a hearing, the Review has been listed for hearing on 4 occasions. On each of these occasions, the review hearing was postponed on the application of the respondent.
4. In the course of seeking to case manage this review, the tribunal has held a number of CMDs which the respondent and her representative have failed to attend. The claimant has attended each of these CMDs, travelling a considerable distance to do so. The only occasion on which the respondent did attend was a CMD in August 2010 shortly after her review application was lodged.
5. On 27 May 2011, the Chairman directed that the respondent should submit medical evidence as to her fitness to attend a future review hearing. The respondent has been reminded of this direction on a number of occasions in correspondence from the Office. To date, this issue has not been addressed in any of the (limited) medical evidence submitted by the respondent.
6. Notice was given in July 2011 of the proposal to strike out the review application. In her letter of 29 July 2011, the respondent indicated that she wanted to have a hearing to put forward reasons why the review should not be struck out, but when a CMD was convened on 5 September 2011, the respondent and her representative failed to attend this hearing. The respondent also failed to take up a further opportunity for another CMD which was to be held on 3 October 2011.
7. The respondent has been represented for the vast majority of the period since the tribunal confirmed that the review could proceed to a hearing. Initially, the respondent was represented by a solicitor and, since 30 January 2011, by Mr Jim Shannon MP.
8. The respondent has never filed a response form, despite this omission being drawn to her attention by the tribunal on a number of occasions.
Statement of Law
9. The overriding objective of the Tribunal’s Rules is to enable tribunals and chairmen to deal with cases justly. Dealing with cases justly includes, so far as practicable –
“a) ensuring 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”
The parties are under a duty to assist the tribunal or the chairman to further the over-riding objective.
10. The tribunal has power under Rule 18 (7) (d) to strike out a claim which has not been actively pursued. It is considered that, by analogy, the tribunal has similar power to strike out a review application which has not been actively pursued. In the case of Evans and anor v Commissioner of Police of the Metropolis 1993 ICR 151 the Court of Appeal held that this power to strike out could be exercised either where there has been delay that is intentional or there has been inordinate and inexcusable delay which gives rise to a substantial risk that a fair hearing is impossible or which is likely to cause serious prejudice to the other party.
11. In his judgment in the case of Proceeds of Crime Agency v Seamus Mullan 2011 NIQB 55 Treacy J held that it is not open to a party in civil litigation to seek to stay the proceedings on the basis solely of that party’s inability to give instructions due to a medical condition or disability. In so concluding, Treacy J considered that it would be highly anomalous if one party’s inability to give instructions due to an underlying medical condition were to trump the article 6 rights (to a fair hearing) of others.
Conclusions
12. In this case, for more than a year since the tribunal decided in September 2010 that the respondent’s review application should proceed to a hearing, the tribunal has been endeavouring to have the respondent’s review application heard. To date, despite the best efforts of the tribunal and through no fault of the claimant, it has not been possible to have the review heard.
13. In seeking to manage this case, I have at all times been mindful that the rights of the respondent have to be balanced against the rights of the claimant to have this matter brought to a final conclusion without undue delay. In seeking to balance the respective rights of the parties, I have taken full account of the respondent’s medical condition and numerous adjustments have been made throughout to seek to accommodate the possible effects of that condition. For example, review hearings have been adjourned at the request of the respondent on no less than 4 occasions.
14. Since Notice was given that a strike out of the review application was under consideration, the respondent and her representative have been given numerous opportunities to give reasons why the review should not be struck out. Correspondence has been received from the respondent and some medical and other evidence has been submitted on her behalf which has referred to her medical condition, but little or no substantive progress has been made in determining if and when this review can be finally heard. The respondent has recently expressed a wish to make progress towards a hearing of the review. I am conscious that this desire has been expressed by the respondent on many occasions previously, including at the stage when the review application was first lodged and yet it has still not proved possible to have the review heard. The respondent and her representative have been clearly put on notice that a decision on the strike out would be taken after 21 October and without further notification to the parties. In the circumstances, I am therefore of the view that, despite the content of the recent correspondence from the respondent, it is now appropriate for the strike out to be determined.
15. Since the review application was originally submitted, the respondent has submitted a certain amount of medical evidence which indicates that she has a diagnosis of Bipolar Affective Disorder. This evidence has also indicated that the respondent has had episodes of acute illness at times since September 2010. However, there are many gaps in this evidence. In particular, this evidence does not indicate that the respondent has been acutely ill and/or medically unfit to deal with this case for the whole of the relevant period. In this regard, I must bear in mind that the respondent has had the benefit of representation throughout the relevant period.
16. Having considered all these matters, I have concluded that, even taking account of the respondent’s medical condition, the respondent and/or her representative have not actively pursued her application for a review. It is now some 16 months since the respondent’s application for a review was first made and 14 months since the tribunal confirmed that it could proceed to a review hearing. I consider that the delay in this case has been inordinate. The relevant events in this case occurred towards the end of 2009 and I believe that the lapse of time with resultant fading of memories is likely to cause serious prejudice to the claimant and thus that it will not be possible to ensure a fair hearing. I therefore believe that the test set out in the Evans case for the striking out of the review application is met.
17. In addition, I have no evidence to suggest that the respondent is likely to be able to attend a hearing in the foreseeable future so that the review can be finally heard and determined. In this regard, I am mindful of the principle outlined by Treacy J that the rights of a party suffering from a mental health impairment must not be allowed to trump the rights of the other party to a fair hearing. I am also concerned that the tribunal will be unable to fulfil the requirement to ensure that this case is dealt with expeditiously and fairly.
18. Having considered the history of the matter and all the factors referred to above, I have concluded that the respondent’s application for a review should now be struck out on the grounds that this application has not been actively pursued by the respondent or her representative and there is no reasonable prospect of the review being heard in the foreseeable future.
Chairman:
Date decision recorded in register and issued to parties:
THE INDUSTRIAL TRIBUNALS
CASE REF: 260/IOIT
CLAIMANT: Sigita Voveryte
RESPONDENT: Jacqueline Chivers
To: The Respondent Jacqueline Chivers and her representative
Mr Jim Shannon MP
DUP Advice Centre
36A Main Street
Ballynahinch
BT24SDN
TAKE NOTICE that a Chairman is proposing to make a decision to Strike Out your application for a review of the tribunal’s decision in this case issued to the parties on 22’ June 2010. The Chairman is proposing to make the said decision in light of the history of this review application as outlined in the attached Schedule. The proposed Strike Out decision if confirmed would be made under Rule 18 (7) (d) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, on the grounds you have not actively pursued your application for a review.
AND FURTHER TAKE NOTICE that on
or before Friday l2th August 2011 you
must write to the tribunal giving reasons why the decision should not be made
or request a hearing so you can give such reasons orally. If you .do not give any
reasons in writing or request such a hearing, the Chairman may make the
decision to Strike Out your review application in the absence of the parties,
and without further notice or hearing.
The address to which any communication in relation to this matter should be
sent is:
Office of the Industrial Tribunals and the Fair Employment
Tribunal
Killymeal House
2 Cromac Quay
Ormeau Road
Belfast
BT7 2JD
Secretary: __________________________
Date: ________________________
Schedule
22nd July 2010- the respondent’s review application was received in the Office
28th September 2010 - the tribunal confirmed to the parties that the respondent’s application for review could proceed to a hearing
28th October 2010— review was listed for hearing — hearing postponed at the request of the respondent as she was instructing a solicitor
29th November 2010— review was listed for hearing — hearing postponed on 26th November 2010 as the respondent’s solicitors had come off record
30th January 2011 — the respondent confirmed that she wished to proceed with the review application and that she was now represented by Mr Shannon MP
14th February 2011 — the tribunal sought suitable dates for the review application to be heard during March/April 2011 — no response by or on behalf of the respondent
27th May 2011 — review was listed for hearing — the claimant appeared. The respondent and her representative did not attend. This hearing was postponed at the request of the respondent. The tribunal directed that the respondent submit medical evidence as to her fitness to attend a hearing
20th June 2011- review was again listed for hearing. Having received correspondence from Dr Bell, SHO to Dr McCleery, the tribunal postponed this hearing and convened a CMD
7th July 2011 — Case Management Discussion to determine the way forward in this case — the claimant attended. The respondent and her representative failed to attend