United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD HOLDEN (of Counsel) Instructed by: Messrs Bevans Solicitors Grove House Grove Road Redland Bristol BS6 6UL
For the Respondent	MR CHRISTOPHER GRAHAM Solicitor Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds LS1 2AX


 


MR JUSTICE LINDSAY (PRESIDENT):

1. Mr R.J. Terry (represented today by Mr Holden of Counsel) appeals against the striking out of his claim. It was struck out under Rule 13 (2) (e) and (f) of the Employment Tribunal Rules which provide:-

"(2) A Tribunal may -

.........

(e) Subject to paragraph (3), at any stage of the proceedings, order to be struck out any Originating Application on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Applicant. has been scandalous, frivolous or vexatious; and

(f) Subject to paragraph (3), on the application of the Respondent, or of its own motion, order an Originating Application to be struck out for want of prosecution."

The paragraph (3) there referred to provides:-

"(3) Before making any order under sub-paragraph (d), (e) or (f) of paragraph (2) the Tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the Tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

2. We shall have the remaining provisions of Rule 13 in mind but it is not necessary for immediate purposes to set them out. It is, though, necessary to set out some, at least, of the history of Mr Terry's IT1 down to the point at which it was struck out.
3. On 7th October 1998 Mr Terry, claiming to have been dismissed by Hoyer (UK) Ltd. on the 21st August 1998, presented his IT1 for "unfair dismissal, unlawful deduction of wages, breach of contract". As he claimed to have been employed only from the 12th December 1996 his unfair dismissal claim so framed could be expected to heading towards difficulties in the light of the then-understood requirement of two years continuous service. However, on the 26th October Mr Terry, who had been a petroleum tanker driver for Hoyer, wrote to the Employment Tribunal stating that his claim may have been classified under a wrong heading and that his claim was that he had been dismissed for asserting a statutory employment right.
4. On the 30th October Hoyer's solicitors lodged an IT3 Notice of Appearance. Hoyer denied that Mr Terry had the necessary qualifying service in order to claim unfair dismissal and alleged that in any event he had been dismissed for misconduct consisting of a repeated disregard for their practices and procedures for safe delivery. They applied for the hearing of a preliminary issue as to Mr Terry's qualifying service.
5. On the 10th November 1998 the Regional Chairman of the Employment Tribunal ordered a Preliminary Hearing to be heard on the 14th December 1998. After several representations from Mr Terry that Preliminary Hearing was cancelled but its date was retained for a Full Hearing.
6. On the 23rd November 1998 Mr Terry requested of the Employment Tribunal that it should make witness orders in his favour but the Chairman indicated that further information was necessary before he would be prepared to make such orders.
7. On the 24th November 1998 Mr Terry was ordered to prepare a common bundle of documents to be agreed and was required to exchange witness statements seven days before the hearing, then still fixed for the 14th December. A little later, on Mr Terry's application, the date of the 14th December was abandoned for the Full Hearing.
8. Mr Terry felt that arrangements that had been made put him at a disadvantage. He asked for an ex parte hearing at which he could renew his application for witness orders and also seek an adjournment of the main hearing. He already felt that the Chairman was treating his case unfairly. He was, unusually, granted a request for an ex parte hearing. It took place on the 4th December.
9. Mr Terry was granted two witness orders but was refused the other two. He claims that the Chairman on that day told him to "sit down and shut up" and that the Chairman was generally hostile to him. He began to make inquiries to find someone who might represent him at the main hearing. The 18th January 1999 was fixed as the date for an Interlocutory Directions hearing.
10. On that date the Chairman gave directions. The main hearing was re-fixed for the 1st and 2nd March. There was talk about arrangements for disclosure of a tape-recording which Mr Terry had. He feared, if it were disclosed before witness statements were exchanged, that the Respondents' witnesses would take the opportunity to adjust their written evidence in chief to fit or not to conflict with whatever would have become apparent to them from the tape and that his cross-examination of them would be consequently weakened. He believed that the Chairman saw the force of that objection but he complains that, again, the Chairman was hostile to him and that, again, he was told, amongst other remarks, to "sit down and shut up". He says that the Chairman indicated that he, Mr Terry, exhausted him, the Chairman. Mr Terry's understanding of the outcome as to the tape was that he could withhold giving it or a transcript of it to the Respondents until immediately prior to the Full Hearing commencing on the 1st March. However, that is not an impression which one could form upon a reading of the Order. The Order said:-

"A. There be common bundle of documents agreed by 22nd February 1999, such documents to include the tape-recording and any transcript thereof in the present possession of the Applicant;

B. Witness statements, including that of the Applicant, be prepared and exchanged by the 22nd February, these statements to form the evidence in chief of the witnesses. These may be taken as read at the discretion of the Tribunal. No witness will be permitted to give evidence without leave of the Tribunal unless a statement of their evidence has been provided in accordance with this order."

That suggests that neither the tape nor a transcript could be admitted into evidence unless exchanged by 22nd February. At the hearing on the 18th January Mr Terry was refused a postponement of the March dates fixed for the main hearing, an application he made on the ground that he wished to seek representation.

11. Mr Terry telephoned Hoyer's Solicitors, Messrs Ford & Warren, who had not themselves been present at the hearing on the 18th January and indicated that the obligation upon him was to agree a bundle rather than to exchange it and that he did not have to hand over his bundle until a minute before the hearing if he did not want to. That telephone call prompted a letter from Ford & Warren (whose Mr Graham appears for Hoyer today) asking Mr Terry whether he intended to comply with the directions which the Tribunal had given on the 18th January.
12. In subsequent correspondence the Chairman indicated on the 22nd January that if an appointed representative made application on Mr Terry's behalf for an adjournment that would be considered but that the Chairman was not otherwise prepared to consider an adjournment of the March dates.
13. On the 1st February 1999 Messrs Ford & Warren, seeking to comply with an obligation upon them to supply their documents on or before the 1st February, sought to fax them to Mr Terry but first telephoned him to ascertain his fax number. Mr Terry had frequently used a fax machine to send messages to the Employment Tribunal or to Messrs Ford & Warren but the machine was not, said Mr Terry, his own machine and he was not prepared, he told Ford & Warren, for them to fax messages to it. In consequence Ford & Warren had to send the required papers by post and on account of that the papers arrived outside the time provided for their supply. On the 8th February Mr Terry, in what we can only describe as an ill-advised and aggressive step, applied to the Chairman to have Hoyer's defence struck out for that failure to comply. That application failed and on the 11th February Mr Terry was ordered to exchange a common bundle of documents by the 22nd February 1999. That was conveyed to Mr Terry by a letter from the Tribunal on the 11th February which said, inter alia:-

"I am also directed to inform you for the avoidance of doubt, the bundle of documents regarding the tape-recording and any transcript thereof, must not only be agreed by Monday the 22nd February 1999 but all contents discovered and exchanged by that date. That is to say each party must have the bundle of documents available to them by that date. The Tribunal will not admit any documentary or taped evidence at the hearing which has not been supplied to the other party by Monday 22nd February 1999, without giving leave. Also the Chairman further orders the Applicant to qualify [sic] his claim for damages for breach of contract; a formal order is enclosed."

If, previously, Mr Terry had truly thought that the order of the 18th January as to a common bundle of documents being agreed required no more than the agreement of an index of documents he must now have been disabused of that interpretation. The formal order for particulars which the letter referred to was also dated 11th February 1999 and it said:-

"The Tribunal hereby orders the Applicant to furnish in writing to the Respondent and to this office on or before Thursday the 18th February 1999 the following further particulars of the grounds on which the Applicant relies:

The Applicant to quantify his claim for damages for breach of contract, particularising each sum claimed to the Respondents' representatives."

14. Mr Terry regarded the requirements as to the mutual supply of documents on the 22nd February as a change of heart by the Chairman and on the 15th February applied to the Chairman to review the decision that had been incorporated within the Tribunal's letter of the 11th February. In his letter of inordinate (but, unfortunately, characteristic) length of the 15th February Mr Terry also asked that the requirement upon him to supply particulars by the 18th February should be set aside. He said that on health grounds he would be seeking an adjournment of the main hearing. No medical certificate was supplied with the application. He also indicated that he had heard from a Mr Peter Hammond LLB, who would be willing to appear for him as his representative but who would be unable to attend at the fixed dates of the 1st and 2nd March. An adjournment was also sought by Mr Terry on the ground that his newly-chosen representative could not attend on the dates so fixed. Mr Terry added, in relation to Hoyer that:-

"They are out for every penny they can screw out of everybody, so dream on Suckers, but this ex-employee doesn't scare easily, and is just the sort of worst nightmare you could ever imagine, so stand aside Freddie Kruger, I am going to feed on my burning hatred for a long time to come yet, whilst I watch their precious ££££'s going up in smoke try to stop me, whilst I speed on at full steam!"

15. On the 17th February Mr Terry wrote another long letter, this time to Ford & Warren. He said he would be making several complaints against Ford & Warren's conduct, to the police, to the Regional Chairman of the Employment Tribunals and to the Law Society. He said:-

"A bit of free advice Mr Daniels, you can't con a con artist, I am far better at this game than you will ever be and I don't need a law degree to fight the likes of you or your clients, for there isn't much I miss, I may not spot it immediately, I just read things again and again until I understand it fully, and then I research things fully to establish things I want to resolve. Well Mr Daniels I am going to enjoy this case when we finally get there and aren't you going to enjoy my bundle of documents, you want to confuse the issue, you will regret it, for it will be fairly substantive and all relevant and you are going to be looking for a few needles (quite a lot actually) in a haystack, I imagine I will tie up the services of all the lawyers within your firm just looking for them, not that you will discover any of them unless you know where to look. I do."

16. On the 18th February the Employment Tribunal wrote to Mr Terry indicating, if he was making application to adjourn the case on medical grounds, that supporting medical evidence would be required of him. The letter continued:-

"If any application is on the basis that you have only now obtained representation, then the Chairman is unable accede to such an application. First there is no communication from Mr Hammond accepting representation; second we have no address for him; and third the matter is fixed to the 1st March 1999 and the Chairman considers that a representative has sufficient time to prepare for the hearing."

As to particulars of Mr Terry's damages claim the Chairman indicated that he saw no reason why Mr Terry should not be able to quantify the damages in his claim and reiterated that he, Mr Terry, had been directed to do so.

17. On the 19th February Ford & Warren wrote to the Employment Tribunal indicating that they wished to have an opportunity of addressing the Tribunal in relation to a number of points. As to further and better particulars, they had not received what they required from Mr Terry and the time for compliance by Mr Terry had expired. They said:-

"We wish to apply for an order that the Applicant's claims be struck out in their entirety or in the alternative that the Applicant's claim for damages (only) be struck out. In support of such allegation we rely upon the following grounds;

•    By letter of the 13th November 1998 the Tribunal made it quite clear to the Applicant that the parties would be treated evenly and in making interlocutory orders he was concerned to see justice done between the parties and put neither side at a disadvantage.

•    In the context of the Applicant's own application to strike out the Respondents' Notice of Appearance, non-compliance with such an order was regarded as a serious breach of the interlocutory order and an impediment to the preparations of the Applicant's case.

•    Identical considerations apply in the context of our own application upon which we will rely."

As to discovery, inspection and agreement with regard to production of documents, Ford & Warren wrote:-

"On our part, we are in a position to deal with discovery within the time-scales specified in the Tribunal's order. We are not however prepared to do so unilaterally and owing to the fact that there has been no antecedent discovery we are not in a position to exchange witness statements which deal with all of the relevant issues.

To the extent necessary, please treat this letter as an application to vary the directions order made on the 18th January 1999 owing to the conduct of the Applicant."

Ford & Warren on Hoyer's behalf objected to an adjournment of the main hearing.

18. Notwithstanding that Mr Terry had indicated that he had a representative who had agreed to act for him, he continued himself to conduct correspondence with Ford & Warren. On the 22nd February he wrote to them, inter alia:-

"As you are aware, today is the date set for exchange of documents and witness statements, I will not be doing either, and expect you to try to strike out, despite your continuous and erroneous remarks ...."

Later in the letter he says:-

"Let me assure you that no--one, and I mean no-one, ever ever F***s with me, for it really, really pisses me off, and when they won't say sorry, as I asked your Mr Daniel to on several occasions, I get even more pissed, but when I get accused of misrepresentation by the bunch of crooks that I am dealing with, then I get angry, very very angry indeed, and then Mr Graham, and only then, do I really start to play The Game."

Later in the letter he adds:-

"Mr Graham, I have now been up for most of the night writing to you, its been quite fun for me, even though I urgently need some sleep, how about it for you? Did you like it? Oh come on, don't get all pissy with me, after all, I am only playing The Game for don't you just love being in control. I do ....... I will nail the bastards in the full spotlight of the world, you have my solemn promise of this. Don't you just love being in control and playing The Game? I do."

19. Having received that letter Ford & Warren wrote to the Tribunal on the 22nd February indicating that they applied to strike out the Applicant's claim in its entirety. They continue:-

"Such application is based upon the following grounds:

1. The Applicant was well aware of the nature and effect of the order for discovery, inspection and agreement with regard to a bundle of evidence to be adduced to the Tribunal.

2. As suggested in our earlier correspondence the Applicant has indeed attempted to manipulate the process of the Employment Tribunal with a view to obtaining a postponement of the substantive hearing.

3. In the Applicant's letter of the 22nd February it has expressed that "today is the date set out for exchange of documents and witness statements, I will not be doing either ...."

4. This is a second occasion upon which the Applicant has deliberately ignored an order of the Employment Tribunal without justification or excuse."

The letter continued with grounds for resisting Mr Terry's applicant for an adjournment. On the same day, Monday the 22nd February, the Employment Tribunal indicated to both parties that there would be an interlocutory hearing on the 25th February 1999. In its Extended Reasons, which we shall come on, to the Tribunal indicated that a letter setting out the purpose of the hearing of the 25th February was sent to the parties on the 22nd February and also that both parties were informed by telephone of the hearing and its purpose. We have not seen that letter of the 22nd February from the Tribunal nor any note of the telephone message that went to the parties.

20. On the 25th February the Chairman, Mr A.C. Tickle, sat with 2 Members, Mr G. Roberts and Mr A. Ellis. The Decision was sent to the parties on the 1st March 1999. It was that Mr Terry's Originating Application was struck out. Mr Terry had appeared in person on the 25th February and the Respondent, Hoyer, had been represented by Mr Daniel of Ford & Warren.
21. On the 10th March 1999 Mr Terry applied to the Employment Tribunal for a review of the Decision of the 25th February. Mr Terry's application for a review spread itself over some 14 pages of close-typing.
22. By a Decision sent to the parties on the 25th March 1999 the Chairman alone refused the application for a review on the basis that it had no reasonable prospect of success. Reasons were given for that Decision.
23. On the 7th April Mr Terry completed a Notice of Appeal, received by the Employment Appeal Tribunal on the 12th April, appealing against both the decision for which Extended Reasons had been given on the 1st March and the refusal to review that decision. In the course of the hearing before us nothing was said by way of appeal against the refusal of a review and Mr Terry's Counsel, Mr Holden, accepted that that had fallen away and did not need therefore to be pursued. On the 17th May Mr Terry swore an affidavit in support of his appeal and on the 8th June the Chairman, Mr Tickle, by letter sent his comments on that affidavit to the Employment Tribunal. By letter of the 30th June Mr Terry indicated that, having read the Chairman's comments, he nonetheless stood, as he put it, "a hundred percent behind my affidavit".
24. On the 1st November 1999 Mr Terry's Notice of Appeal came before the Employment Appeal Tribunal at a preliminary hearing presided over by Mr Justice Holland and his appeal was allowed to go to a full hearing. In the judgment of the Employment Appeal Tribunal on that day Mr Justice Holland said:-

"First and foremost, we want to put it on record that presently we see no sign at all of any bias on the part of Mr Tickle."

On that day Mr Hammond had appeared for Mr Terry. The parties proved unable themselves to compose adequate documents for the appeal for the Employment Appeal Tribunal in any consensual way and on the 27th June 2000 the matter came before the President in Chambers for further directions in relation to documentary evidence.

25. As for bias in the Employment Tribunal, Mr Holden first took us to R -v- Gough [1996] A.C. 646 and to the question to be asked in bias cases, as summarised in the headnote, namely of:-

"... Whether in all the circumstances of the case, there appears to be a real danger of bias, concerning the member of the tribunal in question, so that justice required that the decision should not stand."

At page 670 Lord Goff explained that he preferred the expression "real danger" to "real likelihood" to ensure the Court was thinking in terms of possibility rather than probability of bias. Mr Holden's own next citation of Automobile Pty Ltd -v- Healy [1979] ICR 809 recognises that it is not enough to make a case of bias if all that is shown is that one party or another lacked confidence in the Tribunal in question. Mr Holden also referred us to Kennedy -v- Commissioner of Police for the Metropolis (1990) T.L.R. 709 EAT to remind us that:-

"The Appeal Tribunal advocated that the moderate and temperate use of language was of vital importance. What could be tolerated by the Bar could give a wrong impression to a layman."

As for bias we remind ourselves that at the Preliminary Hearing the Employment Appeal Tribunal had said that they saw no sign at all of any bias on the part of Mr Tickle. We have read the whole and have re-read parts of Mr Terry's affidavit of the 17th May 1999 and of his later affidavit of the 17th July 2000 and the Skeleton Argument lodged by Mr Holden on his behalf. The summary we have given does not purport to cover every allegation which Mr Terry makes but we have his evidence in mind. We have also read and re-read Mr Tickle's letter of the 8th June 1999 addressed to the Employment Appeal Tribunal. It is very easy to understand a degree of exasperation in a Chairman or Tribunal in dealing with Mr Terry's enormously long letters and his repeated applications. Mr Tickle in his letter says that "shut up" is not part of his vocabulary at a hearing but, in our view, even if it had been, it would not, in all the circumstances, have been sufficient to be an indication of bias. As for "sit down", Mr Tickle makes the sensible point that parties do not in any event stand up to address the Tribunals at the Employment Tribunal level. Mr Tickle accepted that at the hearing on the 18th January he told Mr Terry that he exhausted him. He says:-

"It was meant to be a flippant - not hostile - remark reflecting the Applicant's extremely fast mode of speech."

We have no reason not to accept that explanation. Mr Terry claims also that the Chairman, in relation to an argument under the Transfer of Undertakings (Protection of Employment) Regulations said that Mr Terry's claim was weak and later said "I can understand why you were dismissed by the Respondents. But that latter remark, even if said, was ambiguous and was certainly not necessarily offensive or unfair and the former remark was unexceptionable.

26. Mr Tickle responding to another complaints made by Mr Terry as to the hearing on 18th January 1999, says:-

"I did not say that costs would be awarded against the Applicant if the time limit of 2 days for the main hearing was exceeded. Further I did not say that I could understand why the Applicant had been dismissed by the Respondent. I had no view on the matter."

It is improbable in the highest degree that the Regional Chairman would have said that if the time limit was exceeded then costs would be awarded against Mr Terry as he would know better than anyone how restricted is the Employment Tribunal's ability to make orders for costs. Still less likely would it be that the Chairman should have said, as Mr Terry alleges, that the threat of costs was that they would be awarded against him "Even if I was to succeed in my claim".

27. It may be that the Employment Appeal Tribunal on the 1st November, in saying, as they did, that they saw no sign at all of bias on the part of Mr Tickle, had meant to exclude the ground of bias from coming to a full hearing but, even assuming that is not the case, we share their view that we have seen no sign at all of bias on the part of Mr Tickle. Exasperation, weariness or impatience are three things; bias is another. Moreover, whilst a carefully constructed and thoroughly rational set of Extended Reasons is not, of itself, necessarily exclusive of bias in a Tribunal, the existence of such reasons do nothing to assist a complainant and here, as we shall turn to and conclude below, each complaint of Mr Terry's was carefully dealt with in a comprehensive way that in our judgment puts the final nail into the coffin of the argument marked "bias".
28. Turning from bias which, it will be noted, so far as concerns alleged incidents, related only to the hearings prior to and not including that of the 25th February, Mr Holden next addresses an argument that the conclusion that Mr Terry's case was to be struck out was perverse. By that we take it that he means that no Tribunal properly instructing itself on the law could in the circumstances have come to the conclusion to which this one came. We are entirely willing to accept Mr Holden's argument based on P.W. Cleaning Services Ltd -v- Railton. There Wood J., giving the judgment of the EAT in an otherwise unreported case noted in The Times, held that a decision to strike out an Originating Application was a radical order which should be reserved for wholly unreasonable behaviour. Mr Holden argues that the order of the 18th January had been ambiguous and that there was a misunderstanding in relation to the obligations it put upon the parties. However, even if we were, generously to Mr Terry, to accept that to be a possibility, on or after Mr Terry's receipt of the Tribunal's letter of the 11th February there was no excuse for his not recognising and acting upon the requirement that the bundle of documents regarding the tape-recording and any transcript thereof should not only be agreed but all contents discovered and exchanged by the 22nd February 1999. Mr Holden argues that whatever else may be said of Mr Terry's behaviour it was not disruptive. But, of course, a party's conduct can be scandalous, frivolous or vexatious without being disruptive.
29. Mr Graham for Hoyer in his argument referred us in some detail to the Tribunal's Extended Reasons. Some telling points critical of Mr Terry's conduct of the case are made there. In paragraph 5 the Tribunal points out that the dates for the Full Hearing - the 1st and 2nd March - had been agreed on the 18th January and yet on the 19th February Mr Terry went ahead and appointed as a representative Mr Hammond, knowing that those were dates which Mr Hammond could not do. As the Tribunal put it:-

"In other words, the Applicant appointed someone at a very late stage who could not act for him at the hearing on the date agreed by him."

30. So far as concerns Mr Terry's reliance on ill-health or unfitness the Tribunal said, accurately:-

"He has submitted a medical certificate showing that he had flu for 3 days at the end of January and the doctor's note which states that "From notes and from observation, there are no medical reasons for adjournment of the case, but there are grounds to say that he has been [we note the past tense] physically and emotionally unfit and unprepared to have carried out the preparatory work". We can only say that the doctor cannot have been aware of the Applicant's voluminous correspondence in this matter."

Anyone aware of the considerable correspondence which at all times Mr Terry seems to have been able to generate could only have taken a similar view of an allegation that Mr Terry was unfit to have carried out the preparatory work in the case. The Tribunal, on similar grounds, rejected Mr Terry's assertion that he had not had time to prepare, discover and exchange documents. Speaking of the order of the 18th January in relation to documents and in particular as to the tape-recording the Tribunal said:-

"The Applicant has failed to comply with the order. He has not provided documents. He has not provided the tape-recording and transcript. He has not provided a witness statement. Why not? Because of ill-health? We reject that. There is no medical evidence that he is unfit. To the contrary, it says that there is no reason why he should not be able to take part in the case. We do accept that he may be or have been under some stress. That is not unusual for litigants. It is part of the process of the litigation. In this hearing, although he has been sipping milk and sniffing, he has shown no sign of fatigue. He has conducted his case with his usual vigour. He has put his case with considerable force. Last, we take note of the vast number of the very lengthy letters written by the Applicant - many served in the last three days. In one, he refers to spending 11 hours at the keyboard. That hardly suggests that he is unfit to conduct litigation."

We see no flaw in the Tribunal's rejection of ill-health as a ground either for not complying with the requirements to supply documents or as providing a ground for an adjournment of the hearings fixed for the 1st and 2nd March.

31. Turning to another question the Tribunal said:-

"Did he [Mr Terry] intend to comply with the order? In his letter of the 22nd February to the Respondents, he said "As you are aware, today is the date set for exchange of documents and witness statements, I will not be doing either. He then invited the Respondents to submit their documents to the Tribunal. The Respondents say that shows he had no intention of complying with the order. Is that right or was the Applicant saying that he was not complying that day but intended to comply subsequently? We find, reading the rest of that letter, and in the context of previous correspondence, that the Applicant was being deliberately disruptive and had no intention of complying. This was a deliberate act by him. The letter shows how he views the proceedings. Many times he refers to "The Game" and how he "Just loves The Game". "The Game" is toying with the Solicitors and the Respondents, taunting, threatening and challenging them at every term, he was now challenging the Tribunal too."

32. It is, in our view, a fair reading of Mr Terry's assertion "I will not be doing either" that he had no intention of complying with the order; his expectation that the Respondents would accordingly move to strike him out is entirely consistent with such a reading.
33. Next the Tribunal said:-

"We have asked ourselves, could the Applicant comply with the order? We find that he could comply."

They next asked themselves whether he intended to comply with the order and they gave themselves the answer that he did not. They asked themselves whether he had good cause for not complying with the order and again the Tribunal answered "No". They had rejected his explanations based on ill-health and expense. They had every good reason to do so in our view.

34. The Tribunal then turned to the failure to quantify the claim for damages, as Mr Terry had been required to do by the order of the 11th February. The Tribunal noted that that order had been accompanied by a penal notice that said:-

"Failure to comply with this order may result in the whole or part of the Originating Application being struck out at or before the hearing."

The Tribunal held:-

"We are satisfied that the Applicant could comply with that order but did not attempt to, did not intend to, and has no good cause for not doing so."

We can only agree.

35. It was against that background the Tribunal then turned to considering Rule 13 (2) (e) and (f). It held that the proceedings had been conducted by him in a frivolous manner and that his application had not been prosecuted expeditiously. They held that he had deliberately chosen to ignore the time-table set for an agreed hearing on the 1st and 2nd March. It was for those reasons that they found it appropriate to strike out his claim under Rule 13 (2) (e) and (f). They also found that Mr Terry had conducted proceedings in a frivolous and scandalous manner in his dealing with both the Respondents and the Tribunal. The Tribunal said:-

"He has pestered the Respondents and their solicitors, been abusive to them, has accused them both of malpractice, of being part of a conspiracy, of negligence. He has threatened them. He has said that he sees it all as a game. "I just love the game". He has played his "Game" with the Respondents, which involved fighting a cause not a case. His unduly lengthy and discourteous letters were disruptive of the preparation of the case. His letters to the Tribunal, sometimes personally addressing the Regional Chairman, were, at times, threatening, often bullying. He has tried to get his way by either misrepresenting what happened or feigning that he misunderstood what was said."

The Tribunal concluded that the application was to be struck out on the basis that his conduct amounted to scandalous conduct of proceedings. The Tribunal then considered his appointment of Mr Hammond as a representative saying:-

"The Applicant knew Mr Hammond was not available on the dates agreed by him for the hearing. ....... We are satisfied that this was part of the Applicant's stratagem to avoid the hearing on the 1st March, thereby prolonging the game he was enjoying with the Respondents and putting them to further expense and inconvenience."

Finally, by way of emphasis that the decision made was not that of the Chairman, Mr Tickle, alone, the Tribunal concluded:-

"The Lay Members wish to stress that it was a unanimous decision that the Originating Applicant should be struck out. The decision was reached on the matters put before the Tribunal on the day."

36. At the end of Mr Graham's taking us on a journey through the Tribunal's reasoning we were left with, as it seemed to us, only three remaining points that could be thought to assist Mr Terry, each of which we raised and which Mr Holden then amplified in his reply.
37. The first was whether the Tribunal had sufficiently had in mind that there were alternatives to the draconian course of striking out the whole of Mr Terry's case, alternatives that might have preserved the hearing date of the 1st March or at any rate not have denied Mr Terry a final opportunity to put his house in order for the hearing then to begin. Could not, for example, an "unless" order have been made on the 25th February such, for example, as to require Mr Terry to complete documentation pursuant to the orders made against him by, let us say, close of business on Friday 26th February or early in the morning of Monday 1st March? However, we cannot assume simply from fact that the Tribunal had not mentioned alternatives or that they had not had them in mind. Nor is it indicative of an error of law in coming to one conclusion to say that another one could equally, or could possibly, have been arrived at. Moreover, as Mr Graham points out, an "unless" order would hardly expunge the nature of Mr Terry's conduct being scandalous.
38. A second argument to be dealt with is that Mr Terry, it could be argued, may not have been given adequate notice that amongst the subjects in play on the 25th February would be whether his whole Originating Application was to be struck out. It is, though, notable that he made no application for an adjournment on the ground that he had not had time to respond to and prepare against a striking out application. It will be remembered that on the 22nd February by his letter he had indicated that he expected an attempt to be made to strike out his case. In a letter of the 23rd February to Ford & Warren Mr Terry indicated that he had received correspondence from the Employment Tribunal notifying him that an interlocutory hearing had been scheduled for the 25th February. It will be remembered, too, that the Tribunal found that he had put his case with considerable force and with his usual vigour. There was not, on the 25th February, and has not since been, any suggestion that he was unable to do justice to his resistance of the strike out on that day, nor any application for an adjournment on that ground.
39. Thirdly, we were a little concerned at the reference by the Tribunal to Rule 13 (2) (f) ("Want of prosecution"). As is illustrated by Executors of Evans -v- Metropolitan Police Authority [1992] IRLR 570 C.A., the Rule which is now 13 (2) (f) is to be applied on the basis of the applicability, mutatis mutandis, of the principles laid out by the House of Lords in Birkett -v- James [1978] A.C. 297 H.L.. Those principles require that if a default is not intentional and contumelious it is necessary to show inordinate and inexcusable delay such that a fair trial is no longer possible or such as has caused serious prejudice to the respondent. Neither was proved here. However, those requirements apply only where the default is not intentional and contumelious. Here the Tribunal could only have concluded it was both. Accordingly neither Evans no Birkett -v- James assists Mr Terry.
40. Indeed, having now considered all the arguments raised in Mr Terry's favour, we find none that assists him. We find no error of law (the only type of error we are concerned with) in the Tribunal's Extended Reasons. We must therefore dismiss the appeal.