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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Tuff v NSL Ltd [2010] NIIT 01711_10IT (24 January 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01711_10IT.html
Cite as: [2010] NIIT 1711_10IT, [2010] NIIT 01711_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1711/10
CLAIMANT: Rosana Mary Tuff
RESPONDENT: NSL Ltd
DECISION ON A PRE HEARING REVIEW
The decision is that the claimant has failed to actively pursue her claim by not providing her GP medical records by 6 December 2010 as ordered at the Case Management Discussion on 25 October 2010 and by not providing them prior to this Hearing. However, as the claimant was in a position to provide the medical records to Ms Crook and did so at this Hearing, her claim is not struck out. An Unless Order will be issued to the claimant in respect of the schedule of loss which was to be provided to Ms Crook by 6 December 2010. The Unless Order will put the claimant on notice that unless her schedule of loss reaches Ms Crook by 28 January 2011, her claim will be struck out without further consideration, notice or hearing.
A further Hearing will be arranged before me, following the full Hearing which is due to take place from 21 to 25 February 2011, to consider and determine the respondent’s application for £200 costs in respect of this Hearing arising out of the costs of flights to attend.
Constitution of Tribunal:
President (sitting alone): Eileen McBride CBE
Appearances:
The claimant appeared in person accompanied by her husband.
The respondent was represented by Ms Crook, in-house solicitor of NSL Ltd.
1. The issue to be determined at this Pre Hearing Review was whether the claimant has failed to actively pursue her claim and, if so, whether her claim should be struck out on the ground of that failure to actively pursue.
2. A Case Management Discussion took place on 25 October 2010 to prepare this case for Hearing and to fix dates. The claimant was present at that Hearing together with her former solicitor. At that Hearing I ordered, by consent, that the claimant should provide discovery of her GP medical records to the respondent’s representative by 6 December 2010.
3. A record of proceedings setting out that Order in writing was issued to the parties’ representatives on 26 October 2010. A Notice was attached to that Order informing the claimant that:-
(i) if she was unable to comply with the Order, any application she wished to make arising out of that inability should be made promptly to the tribunal;
(ii) failure to comply with the Order may result in a Costs Order being made against her and an Order that her claim be struck out;
(iii) she could apply to vary or revoke the Order.
4. The claimant did not provide the GP records to the respondent by 6 December 2010, as ordered and by letter dated 14 December 2010, Ms Crook notified the tribunal that the records had not been received.
5. A Case Management Discussion was therefore arranged and took place on 4 January 2011. The claimant’s then solicitor indicated that there had been ongoing problems between the claimant and her solicitor and she was not in a position to provide the GP records.
6. I therefore directed that this Hearing would take place to determine whether the claimant had failed to actively pursue her claim and, if so, whether her claim should be struck out on the ground of that failure. I also indicated that an important factor at this Hearing would be whether the GP records had been provided to Ms Crook prior to it.
7. The claimant attended this Hearing with her husband. She indicated that her previous solicitor is still assisting her but will not be representing her at the Hearing due to cost.
8. The claimant accepted that she was at the Hearing on 25 October 2010 when I made the Order that she was to provide discovery of her GP medical records to Ms Crook by 6 December 2010. She stated that both she and her solicitor were to blame for not providing the records by 6 December 2010 or before this Hearing. She indicated that she had received the GP records from her doctor’s surgery yesterday and that she had them with her today to provide to Ms Crook.
9. Ms Crook applied for the claim to be struck out on the grounds that the claimant had deliberately failed to provide the records and neither the claimant nor her previous solicitor had contacted her to explain why.
10. Having considered the representations I was satisfied that the claimant has failed to actively pursue her claim by not providing the GP records by 6 December 2010 or before this Hearing. However, as she was in a position to provide the medical records to Ms Crook today, I did not strike out her claim.
11. At the Case Management Discussion on 25 October 2010 I had also ordered that the claimant should provide a copy of any report obtained from a consultant psychiatrist in relation to her alleged disability to the respondent’s representative by 20 December 2010. The claimant produced a document which indicated that her “next” appointment with a consultant psychiatrist was due to take place on 21 January 2011. She indicated that her last appointment had taken place during December 2010. She indicated that she would not be obtaining a report from the psychiatrist in light of cost. In those circumstances I made no further Order in respect of it save to make it clear to the claimant that if she does decide to obtain a report from the consultant psychiatrist, a copy should be provided to Ms Crook as soon as possible after the claimant receives it.
12. At the Case Management Discussion on 25 October 2010 I had also ordered the claimant to provide Ms Crook with a schedule of all financial loss claimed by her, setting out in particular the nature and amount of any such loss claimed and how that sum was made up by 6 December 2010. The claimant has not complied with that Order. I therefore directed that an Unless Order be issued to the claimant putting her on notice that unless she provides a schedule of loss to Ms Crook by 28 January 2011 her claim will be struck out without further consideration, notice or hearing. I explained to the claimant what should be contained in the schedule of loss and the claimant’s husband took a note of that. I also explained that the schedule of loss should reach Ms Crook by 28 January 2011. The schedule of loss, as explained to the claimant at this Hearing, should include the following.
(1) Loss of earnings from 6 May 2010 to date i.e. what the claimant says she would have received by way of nett wages if her employment with the respondent had continued.
(2) All benefits paid to the claimant from 6 May 2010 to date. The claimant indicated that she was in receipt of Disability Living Allowance and Sickness Benefit. She should set out the monthly and two weekly amounts received and the total received from 6 May 2010.
(3) Details of all jobs that the claimant has applied for from 6 May 2010 to date. If the claimant has not applied for any jobs, the schedule of loss should contain her reasons for not doing so. The claimant was provided with Ms Crook’s address and her husband took a note of that. That address is:-
NSL Ltd
5 Riverside Way
Bedford Road
Northampton
NN1 5NX
13. Ms Crook made an application for the cost of her flights, which amounted to £200, in respect of this Hearing. As the claimant indicated that she blamed both herself and her previous solicitor for the failure to provide her GP records by 6 December 2010 or before this Hearing, I directed that a further Hearing to consider that application would be arranged when the full Hearing had been completed. The claimant’s former solicitor will be sent a copy of this decision and will be notified of the Costs Hearing as soon as it has been arranged. The claimant’s former solicitor will then be in a position to hear the respondent’s reasons for making an application for costs together with the claimant’s reasons for contending that her former solicitor is partly to blame for the failure to provide the GP records by 6 December 2010 or before this Hearing. The claimant’s former solicitor will be given the opportunity to respond. To save further costs I directed that Ms Crook may attend that Hearing by way of telephone conference.
______________________________________
E McBride CBE
President
Date and place of hearing: 20 January 2011, Belfast
Date decision recorded in register and issued to parties: