Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1352/13 

 

 

CLAIMANT:                                Ken Nugent

 

 

RESPONDENT:                        Scomac Express Ltd

 

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the respondent’s application for a strike-out of the claimant’s claim is refused.

 

 

Constitution of Tribunal:

 

Chairman (sitting alone):        Mr B Greene

 

 

Appearances:

 

The claimant was represented by Mr B Mulqueen, of counsel, instructed by Eamonn McEvoy & Co Solicitors.

 

The respondent was represented by Mr C Hamill, of counsel, instructed by Shoosmiths Solicitors, Birmingham.

 

 

SOURCES OF EVIDENCE

 

1.         This matter was dealt with by way of submission.  The tribunal had regard to the claimant’s claim form, a Case Management Discussion Record of Proceedings of 15 October 2013 and correspondence from the parties to the Office of the Industrial Tribunals.

 

 

THE CLAIM AND DEFENCE

 

2.         The claimant has brought claims for discrimination on the grounds of disability and race, breach of contract and unfair dismissal by way of constructive dismissal.  The respondent denies the claimant’s claims in their entirety.

 

3.         At a Case Management Discussion on 15 October 2013 the timetable for bringing this claim on for hearing was set out.  It included that agreed legal and factual issues be submitted by 1 November 2013.

 

4.         The Case Management Discussion Record of Proceedings also stated that; interlocutory matters would be dealt with by the parties between themselves; the claimant would submit witness statements by 6 January 2014 and the respondent by 17 February 2014; the Schedule of Loss would be submitted by 6 January 2014; bundles lodged by 21 March 2014; and the claim be listed for hearing from 24 to 28 March 2014.

 

5.         The parties did not submit agreed issues by 1 November 2013 the interlocutory process was not concluded by the parties and the claimant’s witness statements have not been served.

 

6.         The claimant sought a Case Management Discussion to obtain Orders against the respondent to answer the claimant’s Notices for Additional Information and Discovery.  The claimant argued the replies were necessary before the legal and factual issues could be agreed.  The request for a Case Management Discussion was refused on the basis that the claimant should know what were the issues in his case and should not require information from the Notices in order to agree issues.

 

7.         By letter of 3 January 2014 the respondent’s solicitor applied to the tribunal to strike out the claimant’s claim for failure to comply with the Orders to provide agreed issues and dates for hearing.  At the same time it had not answered the claimant’s request for Notices for Additional Information and Discovery.

 

 

THE ISSUES

 

8.         Accordingly, a Chairman directed that a Pre-Hearing Review be heard to determine:-

 

                        “Whether the claimant’s claim should be struck out under Rule 18(7) of the Industrial Tribunals Rules of Procedure on account of his failure to comply with orders and directions of the tribunal, in particular, with regard to the agreement of legal and factual issues, the agreement of dates for hearing and the provision of witness statements to the respondent company’s solicitor.”

 

 

FINDINGS OF FACT

 

9.         The following facts found by the tribunal emerged from the documents of record or appeared to the tribunal not to be in dispute:-

 

            (1)       The claimant lodged a claim on 19 July 2013 in which he claimed discrimination on the grounds of disability and race, breach of contract and unfair dismissal by way of constructive dismissal.

 

            (2)       The respondent lodged its response on 23 August 2013.  In its response it disputed the claimant’s claims in their entirety and set out its reasons for objecting which ran to some 20 pages.

 

            (3)       The Case Management Discussion on 15 October 2013 established the timetable for bringing the claim on for hearing as is set out above.

 

            (4)       By letter of 30 October 2013, the respondent’s solicitors indicated that the dates established for the hearing 24 to 28 March 2014 were not suitable to some of its witnesses and in line with the direction at the time they had brought that to the attention of the tribunal within two weeks.  They also had sought to agree alternative dates with the claimant but at that stage they had not been agreed.

 

            (5)       By letter of 5 December 2013 to the Office of the Industrial Tribunals, the claimant’s solicitors indicated that their counsel, Mr Mulqueen, had indicated that the legal and factual issues could not be agreed until the interlocutory process had been completed whereas the respondent took the view that the legal and factual issues could be agreed at this stage.  In addition, they sought a Case Management Discussion to seek Orders to compel replies to their Notices for Additional Information and Discovery served on the respondent on 11 October 2013.

 

                        The claimant’s solicitor did not explain the reasoning for its conclusion in relation to agreeing legal and factual issues.

 

            (6)       The respondent’s solicitor wrote to the Office of the Industrial Tribunals on 9 December 2013 stating it would answer the Notices for Additional Information and Discovery but only after the issues had been agreed.  It referred to comments made by the Chairman at the Case Management Discussion that that was the appropriate way to advance the claim for hearing.  It further objected to another Case Management Discussion and asked that the tribunal order the issues to be agreed within seven days or else strike out the claimant’s claim.

 

            (7)       The Chairman having considered the correspondence from both sides directed that the claimant’s solicitors should draft a list of legal and factual issues within 14 days of 19 December 2013 and should indicate proposed alternative dates for hearing within the same period.

 

            (8)       The respondent’s solicitor wrote to the Office of the Industrial Tribunals on 3 January 2014 indicating that the directions made by the Chairman in the letter of 19 December 2013 had not been complied with and that it applied for an order to strike out the claimant’s claim or in the alternative an Unless Order to comply with the Chairman’s directions within seven days or have the claimant’s claims struck out.  The letter also indicated that witness statements had not been produced by the claimant up to 3 January 2014 and it was unlikely, in the respondent’s view, that that would be done by 6 January 2014 as directed at the Case Management Discussion.

 

            (9)       By letter of 13 January 2014, the parties were notified that a Chairman had directed a Pre-Hearing Review take place to consider striking out the claimant’s claim for failure to comply with Orders in relation to agreeing issues, providing dates for hearing and submitting witness statements.

 

            (10)     The matter came on for hearing on 30 January 2014.

 

 

SUBMISSIONS

 

10.       (1)       Claimant

 

                        Mr Mulqueen indicated to the tribunal that the parties had agreed potential dates for hearing from 12 to 16 May 2014.  He also indicated that the claimant had submitted a list of draft issues legal and factual which he considered to be incomplete and would require a considerable amendment once the interlocutory process was completed.  He further explained to the tribunal that in the respondent’s response, it had made allegations against the claimant of bullying, fraud, and insubordination and an inability to manage the business. 

 

(2)        He anticipated that the respondent would make the argument that had the claimant not resigned, when he did, he would have been dismissed in any event which Mr Mulqueen believed touched on the legal issues on liability and remedy and also the factual issues.  He explained that was the reason why the claimant was not in a position to complete the legal and factual issues.  He accepted that that explanation had not been given to the Office of the Industrial Tribunals. 

 

(3)        He further explained that in addition the respondent did not comply with the Order in the Case Management Discussion that the parties would deal with the interlocutory matters between themselves and the respondent had not done so. 

 

(4)        He further intimated that the claimant had sought a Case Management Discussion to deal with its requests for Orders but that had been refused.  He submitted that the reason for the default in complying with the timetable was by reason of the unreasonable conduct of the respondent in refusing to provide replies to the claimant’s Notices for Additional Information and Discovery. 

 

(5)        He added that without this information the witness statements could not be produced as the direction of the tribunal required the witness statements to include all the evidence that the claimant wished to adduce and he was seeking information in relation to the allegations being made against the claimant in the respondent’s response.  The likelihood then would be that the claimant would be applying to amend the witness statements substantially or that evidence would have to be adduced orally.

 

            (6)       Respondent

 

                        The respondent maintained its application to have the claim struck out for failure to comply with the directions of the tribunal. 

 

(7)        Mr Hamill indicated that the respondent could not provide discovery of documents until it knew what would be relevant and that would be determined by agreement of issues. 

 

(8)        Mr Hamill reminded the tribunal that the respondent had produced draft legal issues and a factual narrative without producing draft factual issues.  The claimant had not commented either to agree or disagree with then. 

 

(9)        He added that the respondent had made its position clear that it would deal with the claimant’s Notices for Additional Information and Discovery once the issues were agreed.

 

 

THE LAW

 

11.       (1)       “The guiding consideration, when deciding whether to strike out for
non-compliance with an Order, is the overriding objective (Weir Valves and Controls (UK) Ltd  v  Armitage [2004] ICR 371, EAT);...  This requires the Judge or tribunal to consider all the circumstances, including ‘the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is possible’ (Ibid that paragraph 17, per Judge Richardson).  Whether a fair hearing is still possible is to be judged objectively by the Judge or tribunal, and the feeling of unfairness of one or other of the parties is not in itself a decisive factor...”  (Harvey on Industrial Relations and Employment Law P1 [387].)

 

            (2)       “...  When considering striking out a claim for persistent or deliberate
non-compliance with procedural Orders, such as the provision of further information, supplying lists of documents, exchanging witness statements and so on, it has been held that the appropriate time to do so is well before the date of the substantive hearing.  In Blockbuster Entertainment Ltd  v  James [2006] EWCA C Civ 684, [2006] IRLR 630, the Court of Appeal stated that it would take ‘something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial’.  (At paragraph 19, per Sedley L J.)  The Court also pointed out that, when determining the proportionality of the response, the tribunal is required to make a structured examination in order to see whether there is ‘a less drastic means to the end for which the strike out power exists’.  As Sedley L J stated (at paragraph 21):  ‘Proportionality... is not simply a corollary or function of the existence of the other conditions for striking out.  It is an important check, in the overall interests of justice, upon their consequences’” (Harvey on Industrial Relations and Employment Law P1 [655]).

 

 

APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES

 

12.       (1)       The parties were agreed that a strike-out was a draconian measure to be avoided if there were other appropriate steps that could enable the claim to continue, doing justice to both sides.

 

            (2)       Neither party disputed that a fair hearing could be heard in this claim despite the non-compliance with the directions of the tribunal to this point.

 

            (3)       I am satisfied that a strike-out is not appropriate in this particular set of circumstances and I refuse the respondent’s application.

 

            (4)       In accordance with Rule 10(1) of the Industrial Tribunals Rules of Procedure (2005) I make the following orders by consent:-

 

                        (a)       The respondent will answer the claimant’s Notices for Additional Information and Discovery by 7 March 2014.

 

                        (b)       The respondent will issue Notices for Additional Information by 20 February 2014.

 

                        (c)        The claimant will respond to any such Notices issued by the respondent by 7 March 2014.

 

                        (d)       Agreed issues, legal and factual, will be served on the Office of the Industrial Tribunals by 21 March 2014.  If the parties are unable to agree the issues completely then they will set out clearly those issues which are agreed and those issues about which there is not agreement.

 

                        (e)       The claimant will serve his witness statements by 4 April 2014.

 

                        (f)        The respondent will serve its witness statements by 2 May 2014.

 

                        (g)       If there are any matters arising from the respondent’s witness statements which are relevant to any of the issues in dispute and which have not been dealt with by the claimant in his witness statements the claimant will provide a supplementary witness statement by 9 May 2014.

 

                        (h)       The parties will submit four copies of the bundle of documents by 12 May 2014.

 

                        (i)         The hearing will be heard between 12 and 23 May 2014.  12 May will be a reading day and the substantive hearing will commence on 13 May 2014.

 

 

COSTS

 

13.                  (1)        Mr Hamill applied for costs of today’s hearing which he measured at £600.00 plus VAT.  He stated that had the claimant agreed the dates and provided the draft issues prior to today, then today’s hearing would not have been necessary.  He further added that it was only when the Pre-Hearing Review for a strike-out was listed that the claimant was spurred to action.  He added that today’s hearing would therefore have been unnecessary.

 

                        (2)       Mr Mulqueen said that the problem arose wholly by reason of the respondent’s failure to deal with the interlocutory process as it had indicated it would do so.  He added that the claimant had sought a Case Management Discussion to seek Orders but was refused.  He added that the dispute over witness statements would probably have necessitated their attendance on today as well as the claimant’s application for Orders to compel replies to the claimant’s Notices for Additional Information and Discovery.  Mr Mulqueen therefore sought to resist the order for costs.

 

                        (3)       Mr Mulqueen then sought costs for the claimant of today’s hearing which he measured at £750.00 plus VAT.  He sought such costs for the reasons set out in his defence to Mr Hamill’s application for costs.

 

                        (4)       The Chairman having considered the respective applications decided to reserve the respective applications for costs to the tribunal hearing the claim as it would be better placed to judge whether there is merit in either of the applications or defences made in relation to the
non-compliance with the directions of the tribunal made on 15 October 2013.

 

14.      Mr Mulqueen sought to have the word limit on the witness statements increased to 10,000 words and also an extension of the number of documents as he anticipated both would be significant.  The Chairman refused to consider such application until the issues had been agreed and the interlocutory process completed at which point the tribunal would be better placed to make a judgment as to whether the word limit on witness statements needed to be increased or the limit on documents needed to be increased.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:      30 January 2014, Belfast.

 

Date decision recorded in register and issued to parties: