At the Tribunal | |
Before
HIS HONOUR JUSTICE COLIN SMITH QC
MR D CHADWICK
MR D A C LAMBERT
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
PRELIMINARY HEARING
Revised
For the Appellant | MISS STANOJLOVIC (A FRIEND) |
JUDGE SMITH:-
".5. Accordingly I am satisfied that the refusal of the Applicant to respond is wilful.
We interpose to say by that he meant intentional, and to continue the quotation of paragraph 5:-
And together with the message from her daughter and to which I have referred I am entirely satisfied it appropriate that the Originating Application should now be struck out for want of prosecution under the powers conferred upon me for that purpose by rule 13(2)(f) and rule 13(3) of the 1993 regulations to which I have already referred. Pursuant to the requirement prescribed by rule 13(3) the Applicant was given an opportunity on 15th September last to shows cause why her application should not be struck out and as I have indicated she has never responded to that later. Paragraph 6 Accordingly, I strike out the Originating Application herein for want of prosecution thereof."
"She suggests that it is only now that she is fit enough to pursue her complaints and she asks that she be permitted to do so. Mrs Sivasothy has produced a note from her GP prepared for other purposes in September 1996. That records that Mrs Sivasothy was suffering from depression with anxiety, from diabetes and from osteo-arthritis in her knees. Her condition was then described as "severe depression", unable to sleep, persistent headache and inability to concentrate." Mrs Sivasothy accepted that she did, in May 1998, write to the respondent concerning premature retirement. She says that took considerable effort and that she did not then have the mental energy necessary to pursue her complaints."
"5. The application for review is refused because of the very long delay in making this application and the even longer delay since the dismissal of which the complaint is made. Before a hearing could be fixed, some eight years will have elapsed since the events giving rise to the complaints. That is so long a period of time as to constitute a very real prejudice to the respondent and to render a fair hearing of those matters very difficult indeed if not impossible. Witnesses have moved on and recollections will have faded.
6. The only corroboration offered by Mrs Sivasothy is the note from her doctor prepared for other purposes in 1996. That, in any event, stops short of asserting that Mrs Sivasothy was unable to attend to matters. There appears to be have been nothing to have prevented an approach to the Tribunal seeking a stay of the proceedings so as to give the applicant a chance to recover. The respondent would have been put on notice that the issues would come on for hearing and steps could have been taken to preserve evidence. Balancing the interests of the applicant in having her complaints heard with the prejudice to be suffered to the respondent, that balance requires that the application for a review be refused."