United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR LEROY BUNBURY (Of Counsel) Instructed by: Lower Broughton Citizens Advice Bureau Lucy Street (Off Great Clowes Street) Lower Brougham Salford Manchester M7 1ZP


 


MR RECORDER LANGSTAFF QC

1. This matter comes before us by way of preliminary hearing from a decision of the Employment Tribunal sitting at Manchester. Extended Reasons for that decision were given on 11^th June 2001. Those reasons were subsequently reviewed in a decision which is relevant to our conclusion this morning and that review decision was promulgated on 30^th July 2001.
2. The decision which the Tribunal reached was to strike out the complaints made by the Appellants. The strike out was effected under Rule 4(7) of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 1993.
3. Rule 4(1) provides that

"(1) A Tribunal may

(a) require a party to furnish in writing to the person specified by the Tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto

(b) require one party to grant to another such discovery or inspection (including the taking of copies) of documents as might be granted by a county court."

By 4(3), a Tribunal may

"require a party in writing to furnish to the Tribunal a written answer to any question. . ."

Rule 4(7) provides

"If a requirement under paragraph (1) or (3) is not complied with, a Tribunal, before or at the hearing, may strike out the whole or part of the Originating Application . . . but a Tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the Tribunal should not do so."

4. The history of these applications began with events in as early as 1996 about which a complaint was made by application to the Tribunal on 13^th April 2000. In May 2000 the Employment Tribunal ordered witness statements including particulars of the complaints at least 14 days before any hearing. That was plain enough. A hearing was listed for 30^th November.
5. By three letters in November the Appellants were reminded by the Respondent solicitor of the order that they should provide witness statements. Indeed on 22^nd November, the third of those occasions, the Respondent themselves sent to the Appellants their own witness statements. The Tribunal recorded that in response to the third of those letters, the Appellants replied indicating that they did not intend to provide witness statements. We interpose to say that it was plainly open to the Employment Tribunal to treat that as an intentional, indeed declared intention, to disregard the order that had been made by the Tribunal in May.
6. As it happens the hearing was re-listed for 25^th June 2001. That was due to no fault of either the Appellants or the Respondent. On 3^rd January 2001 the Employment Tribunal ordered that witness statements be provided within 21 days. They were to be full and complete statements giving full particulars of the allegations and the matters relied on. That order included a warning that a failure to comply with this might result in a strike out of the Originating Application. There was no response.
7. On 22^nd February the Tribunal wrote to the Appellants to inform them that there was to be a hearing on 16^th March 2001 to consider whether or not the Appellant's claims should be struck out. The Appellants did respond. That response, according to the Tribunal's decision, indicated that they felt the suggestion to have themselves struck out was a "little harsh" and promised the provision of their own statements by 16^th March. That promise was not kept.
8. The Tribunal exercised its discretion, provided under Rule 4(7), to strike out the claims. The basis for its decision is contained in paragraph 6 of its reasoning. That provides as follows

"In exercising our discretion we remind ourselves we must approach the application to strike out with great caution and that to strike out an application is a Draconian step. In exercising our discretion we have regard to the principle that Orders from Courts and Tribunals are made to be complied with. If they are not complied with it is detrimental to the administration of justice not only in the particular case but generally. Thus if Orders are flouted and no proper sanctions imposed the system is brought into disrepute. In the present case it is not simply a matter of an Order being breached and then the matter being speedily remedied. The present case involved the failure to comply with a clear and unambiguous direction from the Tribunal followed by a failure to comply with a clear and unambiguous order of the Tribunal. Moreover even after today's hearing had been fixed the Applicants still did not take steps to remedy their breach. In such circumstances we are satisfied that the conduct of the Appellants amounts to an abuse of the process of the Tribunal and thus falls within the first of the principles set out in the House of Lords judgment in Birkett v James [1977] 2 All ER 801."

We interpose in this citation to note that, although it does not say so in clear terms, the first principle in that House of Lords judgment is that a court may strike out a claim where there has been intentional or contumelious disregard of an order of the court. The Tribunal continued

"Having regard to the fact that there has been a clear abuse of the process of the Tribunal we have considered whether instead of taking the Draconian step of striking out the application we should instead allow the Appellants a further 28 days to provide a copy of their statements coupled with an Order that they pay all the costs of the Respondent in respect of the striking out application. Having regard to the history of this case we consider the stage has been reached where it must be said "enough is enough". Therefore in pursuance of our powers under the said Rule 4(7), we order that both applications be struck out in their entirety."

9. The Tribunal went on to say that had this been simply a case of delay, they would not have thought the Respondents had suffered any prejudice by reason of the delay. They had, however, earlier observed that had the hearing originally scheduled for November and early December 2000 gone ahead, the Respondents would have been prejudiced, that is they would not have had a proper and fair trial as they were entitled to have, by reason of the failure of the Appellants to set out their case in witness statements and particulars.
10. Before us today Mr Bunbury has appeared to argue the Notice of Appeal originally drafted by Mr Broomhead who, as an officer of the Citizens Advice Bureau, had represented the Appellants at the hearing. He had focussed those grounds upon his view that what the Tribunal had in mind was that there had been an inordinate delay by the Appellants. It seems plain that he had not understood the somewhat oblique reference to the intentional disregard of a Tribunal's orders upon which the Tribunal actually founded its decision.
11. It is however to grounds 3, 4, 5 and 6 that Mr Bunbury principally addressed the thrust of his argument. Ground 3 was that the Tribunal was wrong in failing to consider an alternative sanction in costs to the striking out of the application. The answer to that submission is, of course, that they did indeed consider an alternative sanction and they rejected it.
12. Ground 4 was that they failed to take into account that the Appellants were litigants in person and in the circumstances striking out their Originating Application was Draconian and excessive in the circumstances. Before us Mr Bunbury made great play of the fact that the Appellants were litigants in person. We cannot see that this gives us any basis to interfere in a discretion exercised by a Tribunal which was well aware that the Appellants were litigants in person. Indeed, it might be thought that one of the purposes of having lay representation on Tribunals is partly in acknowledgement of the fact that many of those who come with their cases before the Tribunals are likely to be litigants in person. Whatever sympathy we may have for the (sometimes difficult) position of litigants in person, it does not mean that the exercise of a discretion can be invalidated on that basis.
13. Ground 5,that the striking out of the Originating Application was not a proper exercise of the Employment Tribunal's powers under the Rules of Procedure, and ground 6, that it was a breach of the Appellants' right to a fair trial under Article 6 of the European Convention of Human Rights, run together. The case here relies upon that which Chadwick LJ identified as a guiding principle in another context. The context was the exercise of the common law power, or the power under the Civil Procedure Rules of the High Court, to strike out a petition presented in the companies jurisdiction. He said, in the course of his judgment, in the case of Arrow Nominees Inc and another v Blackledge and others [2000] 2 BCLC 167 at para 54, that he adopted, as a general principle, the observations of Millett J in the Logicrose case that

" . . the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the court; and that, accordingly, a party is not to be deprived of his right to a proper fair trial as a penalty for disobedience of those rules, even if such disobedience amounts to contempt for or defiance of the court, if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled, indeed I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.

Further in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself.

That last remark is plainly a reference, not to general principle, but to the facts of that particular case.

14. Following a decision in November 2000 before this Tribunal, HHJ Levy presiding, in IGW Group v Harrison and Lord coming to his attention, the Chairman sought the review of his own motion of the decision which he had earlier reached to strike out the Appellant's applications. He did so, having given notice to the parties, on the basis that he had not been referred to the relevant law, that is the IGW Group and the Arrow Nominees case, nor to Art. 6 of the European Convention on Human Rights. He indicated in a letter announcing the review to the parties that the Tribunal might have reached a different decision had it had those cases in mind.
15. The Tribunal proceeded to review its earlier decision. It considered the relevant authorities. It considered that it had not been misled either inadvertently or otherwise as to the relevant law and that it had had proper regard to, and correctly applied it. It maintained its earlier decision.
16. We interpret that, and indeed we think it can only be interpreted, as meaning that the Chairman was satisfied that the principle which Chadwick LJ had extracted from the Logicrose case was honoured by the decision which the Tribunal had reached at its hearing in March. In effect, we think that the only sensible way to read paragraph 6 of the decision, which we have set out in full, is that this Tribunal had reached a stage of desperation that there would ever be the furnishing of particulars and details which was necessary to enable a fair trial to take place. That was a judgment which it was for them to make.
17. We have to remind ourselves that our function here, on appeal, is not to consider what order we might have made had we been in the position of the Tribunal where a discretion is involved, as it is here. It may be a point of distinction between the Tribunal jurisdiction and that exercised in the Company's Court, pursuant to a rule which is endorsed by Parliament providing for a strike out rule in such circumstances as arose.
18. We think that the principle which we have to apply is whether, or not, the Tribunal misdirected itself on any issue of law, whether it took into account anything which it should not have taken into account, or failed to take into account something it should have done. The Tribunal were directed to the relevant law. Their paragraph 6 is entirely consistent with the principle set out in Arrow Nominees upon the basis that they despaired of ever securing a fair hearing, due to the continued and determined default of the Appellants. This was a view they were entitled to have on the conduct of the Appellants.
19. Accordingly we do not think there is anything they did which can be characterised, even arguably, as an error of law. Since we cannot pass this case on for an inter-parties hearing unless we think there is an arguable point of law, and since we have been unable to identify one despite the best efforts of Mr Bunbury, this appeal must be dismissed for the reasons we have given.