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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Agnew v Rodney Wilgar, t/a Wilgar Cont... [2015] NIIT 1708_14IT (19 March 2015)
URL: http://www.bailii.org/nie/cases/NIIT/2015/1708_14IT.html
Cite as: [2015] NIIT 1708_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1708/14
CLAIMANT: Jason James Agnew
RESPONDENT: Rodney Wilgar, t/a Wilgar Contracts
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claims should be struck out.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Crothers
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Mr M Potter, Barrister-at-Law instructed by Basil Glass and Company Solicitors.
BACKGROUND AND REASONS
1. (i) The background to the respondent’s application for a strike out of the claimant’s claims is set out in a record of a Case Management Discussion dated 12 February 2015, relating to a Case Management Discussion held on 11 February 2015. The claimant did not attend that Case Management Discussion and was not represented. A copy of the record of proceedings, which was forwarded to the claimant on 13 February 2015, is appended to this decision.
(ii) At 17.59 pm on 4 March 2015, Donna Hillis, on behalf of the claimant, forwarded an email to the tribunal requesting a postponement of the Pre-Hearing Review for “personal reasons”. The hearing did not commence until approximately 10.45 am as the claimant had engaged in telephone conversations with the tribunal administration in which he claimed that he was unwell and again requested a postponement of the proceedings. He produced no medical evidence to substantiate his assertion. The claimant also referred to Campbell Stafford Solicitors having the paperwork in the case and claimed that he did not know that Campbell Stafford were off-record for him. It is clear to the tribunal, as recorded in the Case Management Discussion appended to this decision, that the claimant was perfectly aware that Campbell Stafford were off record. Furthermore it appears that the short time before the Case Management Discussion held on 11 February 2015 the claimant forwarded an email to the tribunal stating that he would not be attending because he had a hospital appointment and that he was awaiting a hospital letter. Mr Potter submitted that no evidence was ever produced of any such hospital appointment. The respondents produced copies of a correspondence to the claimant dated 27 January 2015 and 26 February 2015. The first letter refers to Campbell Stafford’s correspondence of 16 January 2015 stating that they were no longer acting for the claimant. The latter correspondence refers to the claimant’s failure to indicate whether he had instructed alternative Solicitors. Mr Potter also submitted that a previous reference by the claimant to a bereavement had no supporting evidence.
(iii) The tribunal was satisfied in the circumstances that the hearing should proceed, in accordance with its overriding objective.
2. The issues before the tribunal were as follows:-
A. Whether the claimant has:
(i) Conducted these proceedings in a scandalous, unreasonable or vexatious manner in accordance with Rule 18(7)(c) of the Industrial Tribunals Rules of Procedure 2005;
(ii) Failed to actively pursue his claim in accordance with Rule 18(7)(d).
(iii) Failed to comply with the Tribunals Orders dated 13 November 2014 requiring him to respond to the respondent’s Notice for Additional Information and to provide his witness statement(s) by 4 December and 15 January 2015 respectively; in accordance with Rule 18(7)(e).
B. If so, whether the claimant’s claim should be struck out.
3. Mr Potter submitted that the claimant’s behaviour had been scandalous and that he had abused the tribunal process and was being dishonest and disingenuous in representations he was making. Furthermore, pursuant to the postponement of the substantive hearing which was listed from 18-20 February 2015, the claimant has not progressed the matter further and has failed to comply with the tribunal orders referred to in issue (iii) above.
4. Mr Potter also referred to the principles governing strike out applications in the cases of James v Blockbuster Entertainment Ltd [2006] IRLR 630, and re Darley’s Application (NICA) [1997] NICR 384, both of which were discussed at the Case Management Discussion on 11 February 2015. The case of Darley held that a decision by a tribunal to strike out a claim could be the subject of a review. The tribunal is also aware of the particular approach taken in relation to striking out discrimination claims (Anyanwu v South Bank Students’ Union [2001] IRLR 305). In the circumstances, the tribunal is not convinced that unless orders should be issued, given the past history of the case and the manner in which the claimant has conducted the proceedings. Mr Potter submitted that the claimant was being contemptuous and again reiterated that he was abusing the tribunal process. He also referred to the costs being incurred by the respondent.
5. The guiding principle in deciding whether or not to strike out a party’s case for non-compliance with an order is the tribunal’s overriding objective. It requires the tribunal to consider all relevant factors, including in particular what prejudice the other party has suffered, the issue of proportionality of the sanction, whether a lesser sanction could cure the prejudice, and, as an overriding consideration, whether a fair trial remains possible. In Blockbuster, the Court of Appeal held that striking out could only be justified if either the offending party has been guilty of deliberate and persistent disregard of required procedural steps, or the unreasonable conduct of the case by that party (not necessarily deliberately so) has made a fair trial impossible. Striking out as a sanction should only be applied where it is proportionate to the offence.
6. In relation to failure to actively pursue a claim, the leading case is Evans v Metropolitan Police Commissioner (1992) IRLR 570, which held that Birkett v James (1978) AC297, the leading authority on the equivalent rule in civil cases, applied to employment tribunals. Birkett v James held that claims should not be struck out unless there has either been intentional or contumelious default by the claimant, or inordinate and inexcusable delay leading to a substantial risk that a fair trial will not be possible, or to substantial prejudice to the respondent.
7. Having considered the foregoing paragraphs together with the contents of the Case Management Discussion attached to this decision, and the useful section on striking out claims in Tolley’s Employment Law (28th Ed., 2014) at para. 19.76ff, the tribunal is satisfied in the circumstances of the current case, that the claimant has conducted the proceedings before the tribunal in an unreasonable manner so as to make a fair trial impossible. He has manifestly failed to actively pursue his claim in accordance with Birkett v James, and has also been guilty of deliberate and persistent disregard of required procedural steps. Moreover, any prejudice to the claimant in striking out his claim, is outweighed by substantial prejudice to the respondent in having to continue proceedings in the context already described in this decision and in the record of the Case Management Discussion attached to this decision.
8. The tribunal concludes that the claimant’s claims should be struck out, that it is proportionate to do so, and is in accordance with the tribunal’s overriding objective.
Employment Judge:
Date and place of hearing: 5 March 2015, Belfast.
Date decision recorded in register and issued to parties:
THE INDUSTRIAL TRIBUNALS
CASE MANAGEMENT DISCUSSION
CASE REF: 1708/14
CLAIMANT: Jason James Agnew
RESPONDENT: Rodney Wilgar t/a Wilgar Contracts
DATE OF HEARING: 11 February 2015
REPRESENTATIVES OF PARTES:
CLAIMANT BY: The claimant did not attend and was not represented.
RESPONDENTS BY: Mr M Potter, Barrister-at-Law, instructed by Basil Glass & Company, Solicitors.
Case Management Discussion
Record of Proceedings
1. The purpose of this Case Management Discussion was to consider the way forward in light of the respondent’s solicitor’s correspondence of 3 February 2015, in which they stated that the claimant has failed to comply with the Tribunal’s Orders dated 13 November 2014 requiring him to respond to the respondent’s Notice for Additional Information and to provide his witness statement(s) by 4 December 2014 and 8 January 2015 (extended to 15 January 2015) respectively. The respondent’s solicitor also contended that as a result of the claimant’s failure to comply with those Orders, they have been unable to file the statements of the precise legal and non factual issues with the Tribunal and that it has been impossible for the respondent to prepare its case properly.
2. The claimant had been represented by solicitors at the Case Management Discussion on 13 November 2014 but his solicitors notified the tribunal, by email dated 16 January 2015, that they no longer represented the claimant. The tribunal therefore notified the claimant directly of this Case Management Discussion, by letter dated 4 February 2015. At 09.31 on 11 February 2015 the Tribunal Office received an email from Donna Hillis, on behalf of the claimant, in the following terms:-
“To the president Mr Jason Agnew has just found out that is (sic) solicitor as sign of (sic) record. Mr Agnew has just revived (sic) your letter yesterday about a meeting today he can’t make it he has hospital app Mr Agnew is asking for more time now to get a solicitor and get his case together Mr Agnew is waiting for phone records and hospital letter Mr Agnew has not had any letter from Basil Glass & Co solicitor just the one that has been with this letter I will be forwarding the message on to them thank you. I will be waiting to here (sic) from uses (sic).”
3. Mr Potter confirmed that the claimant had failed to comply with the Tribunal’s Orders in respect of Additional Information and witness statements, as set out at paragraph 1 above. Mr Potter also confirmed that without compliance, the respondent’s solicitor had been unable to file the statement of the precise legal and main factual issues with the tribunal in accordance with the Tribunal’s Order of 13 November 2014 and that it is impossible for the respondent to prepare its case properly.
4. In the absence of proof from the claimant that he has complied with the Orders of the Tribunal as set out above, the President granted Mr Potter’s applications, on behalf of the respondent, that:-
(1) the Hearing listed from 18-20 February 2015 is postponed;
(2) a Pre Hearing Review should be listed to determine the following issues:-
A Whether the claimant has:
(i) conducted these proceedings in a scandalous, unreasonable or vexatious manner in accordance with rule 18(7)(c) of the Industrial Tribunals Rules of Procedure 2005;
(ii) failed to actively pursue his claim in accordance with rule 18(7)(d);
(iii) failed to comply with the Tribunal’s Orders dated 13 November 2014 requiring him to respond to the respondent’s Notice for Additional Information and to provide his witness statement(s) by 4 December and 15 January 2015 respectively; in accordance with rule 18(7)(e).
B If so, whether the claimant’s claim should be struck out.
5. The President was minded to list the Pre Hearing Review for 18 February 2015 but decided to list it for 5 March 2015 at 10.00am to enable the claimant to seek alternative legal representation.
______________________________________
E McBride CBE
President
Date: February 2015
Notice
1. If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Industrial Tribunals Rules of Procedure 2005.
2. Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.
3. Under Article 9(4) of the Industrial Tribunals (Northern Ireland) Order 1996, any person who, without reasonable excuse, fails to comply with a requirement to grant discovery and inspection of documents under Rule 10(2)(d) of the Industrial Tribunals Rules of Procedure 2005 shall be liable on summary conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at 3 September 2007, but subject to alteration from time to time.
4. A party may apply to the tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure 2005.