United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JACQUELINE LULE (of Counsel) Instructed By: Mr D J Stott Messrs Geoffery Lucas Solicitors 4 Davyhulme Circle Manchester M41 0SS
For the Respondents	MR SIMON GORTON (of Counsel) Instructed By: Mr S Peacock Messrs Weightmans Solicitors India Buildings Water Street Liverpool L2 0GA


 


JUDGE D SEROTA QC:

1. This is an appeal from a decision of the Employment Tribunal at Manchester chaired by Mr M L Creed promulgated on 19 January 2001. The Employment Tribunal struck out the Applicant's applications against both the Post Office and the Communication Workers Union on the basis that the manner in which the Applicant had conducted himself in the proceedings was vexatious. Mr Zanicchi has not proceeded with and has withdrawn his appeal against the decision insofar as it concerns the Communication Workers Union. The Applicant's original grounds of appeal have been amended by Ms Lule who now appears for him. We are greatly indebted to her for her careful and succinct submissions and for reducing Mr Zanicchi's somewhat rambling and unintelligible grounds of appeal to four specific points.
2. Mr Zanicchi also complained of bias on the part of the Chairman but this ground of appeal has not been pursued by Ms Lule so we say nothing further about it.
3. Ms Lule appeared before the Employment Appeal Tribunal on a preliminary hearing on 10 December 2001 presided over by His Honour Judge Pugsley and on that occasion the four points now argued by Ms Lule were considered to be fairly arguable. We now, therefore, deliver judgment on the appeal after a full hearing. Ms Lule has sought to raise a further point and it is convenient to deal with that point now. Rule 13(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 require that notice of an application to strike-out should be given to the Applicant. However, it is to be noted that the rule does not require written notice to be given so long as the Applicant is given the opportunity to show cause orally why an order striking out the application should not be made. It is clear that the Applicant did in fact have notice of the application. He knew of and attended the hearing on 30 October and, indeed, in her skeleton argument Ms Lule accepted that Mr Zanicchi "accepts that he received some sort of notice but he does not recall that notice specified the application to strike-out". It is also clear from Mr Zanicchi's document at page 138 that he received notice of the applications. It is also clear that he was given the opportunity to make submissions as to why his application should not be struck out. In those circumstances it is unnecessary for us to consider this matter further and we are not minded to allow Ms Lule to pursue the matter further.
4. The factual background to these proceedings is as follows. Mr Zanicchi is of Italian origin. His English may not be perfect but it is quite clear that he can express himself in English both orally and in writing perfectly well. He worked as a postman in Manchester. He claims to have suffered from clinical depression prior to the commencement of these proceedings. It is exceptionally difficult to understand the nature of the complaints Mr Zanicchi made because of the prolix, repetitive and unintelligible way he has chosen to present his case. The appeal bundle alone consists of over 200 pages and the Applicant wished us to consider a further six ring binders full of documents.
5. So far as we are able to tell Mr Zanicchi's application relates to and arises out of a complaint made against him by a female member of staff in 1988. That was a complaint of sexual harassment. Mr Zanicchi made a counter-allegation but the Post Office accepted the complaint made against him and he was given a twelve month suspended dismissal and transferred to work in Oldham. Mr Zanicchi's claims of sex and race discrimination arise out of the manner in which he claims the investigation of the complaints was conducted. There is also a claim for unlawful deductions of wages which so far as we can tell relates to loss of a productivity bonus, although we have no confidence we have correctly understood the nature of this complaint. We are bound to say that it is impossible rather than extremely difficult, to understand the basis of the Applicant's complaints from his Originating Application.
6. At one time Mr Zanicchi was represented by his trade union, the Communications Workers Union but he parted company with the Union and issued an Originating Application against it. This application was struck out and as an appeal against that decision is no longer pursued we say nothing further about this aspect of the matter.
7. The Originating Application was issued on 17 December 1999. A directions hearing was fixed for 11 April 2000. This hearing was adjourned because the Employment Tribunal felt further time for consideration was needed. The minutes taken by the Chairman were sent to the parties. The matter came back before the Employment Tribunal on 9 June 2000. On that occasion detailed directions were given including a timetable. The Employment Tribunal was most concerned at the manner in which Mr Zanicchi was presenting his case. The Chairman was concerned at the amount of verbiage and lack of focus. We quote from the minutes of the order:

"(c) The applicant was to file with the Tribunal, and with the respondent, a full statement of case setting out all allegations upon which he placed reliance. This was to include all sex and race discrimination allegations and all allegations of victimisation of whatever kind for the period up to and including 8 June 2000. Leave to introduce further allegations after the submission of the statement of case would only be granted in exceptional circumstances and with the leave of the Tribunal. The applicant was ordered to provide this statement by 31 July 2000. The allegations were to be set out in numbered paragraphs in the statement for ease of reference."

8. The Chairman ordered the Respondent to respond to the allegation by 29 September and file the witness statements by that date also. The Applicant was ordered to provide his witness statements "Of all witnesses to be called in support of his claim" by 31 July 2000. Other detailed directions were given and it was estimated that the hearing would last for two working weeks and it was set down to commence on 15 January 2001.
9. We also draw attention to paragraph (j):

"The parties were reminded that failure to comply with the order set out in this Minute might result in the Chairman taking further action in the circumstances. A failure on the part of the applicant to comply with the orders applicable to him might result in the whole or part of the Originating Application being struck out at or before the hearing … ."

The minutes were sent to the parties.

10. The Applicant failed to serve a witness statement; his subsequent explanation was that he believed that witness statements only needed to be served of witnesses other than himself and as the only evidence he intended to call was his own evidence he did not consider it necessary to serve a witness statement.
11. Mr Zanicchi then submitted literally hundreds of pages as part of his "case" which included new allegations. Many of these documents were handwritten and illegible, others were poorly typed photocopies. In the words of the Employment Tribunal there were "other documents that could not be comprehended". These documents appear to have been submitted by 30 July 2001 and were intended to constitute a statement of case. Ms Lule in her helpful skeleton described the Applicant's allegations as being obscured by the "sheer verbosity of his script". The matter came before the Employment Tribunal on 15 September 2000 for a further

Directions Hearing. It soon became apparent that much of the voluminous material sent by Mr Zanicchi to the Employment Tribunal had not been sent to the Respondent. The Chairman took the unusual step of ordering that all the material which had been submitted to the Tribunal should be released to the Respondents' representatives on their undertaking to copy that material and return it to the Tribunal. In order to facilitate the smooth running of the proceedings the Respondents undertook to cross reference the material which had been submitted to the Employment Tribunal with that which had been sent to them. The Employment Tribunal recognised that the Respondents were not in a position by reason of the Applicant's default to comply with his previous directions relating to preparation of witness statements and making a full response to the allegations made by Mr Zanicchi. The Chairman accordingly extended their time to on or before 31 October 2000.

12. The minutes of the hearing (which were again sent to the parties) contain the following at (v) and (vi):

"(v) The Chairman noted that the applicant had not served a witness statement as required by the Directions Order made on 9 June 2000, there being no other witnesses to be called in support of his application. The applicant was put on notice that in view of the manner in which he had conducted the proceedings since the Directions Hearing on 9 June 2000, if he was unsuccessful in his application before the Tribunal, the Post Office would seek an order for costs in accordance with the Tribunal's rules of procedures. The Chairman explained the basis upon which the Tribunal could award costs under the rules to all the parties at the hearing.

The Chairman also gave a cost warning to the parties that if they failed to comply with the Tribunal's reasonable direction as set out in this order and in a minute following the hearing on 9 June 2000, that this might result in an order for costs being made.

(vi) The Chairman reminded the parties that he would have no hesitation in considering striking out the Originating Application or the Notice of Appearance if either party failed, without reasonable cause, to comply with the directions of the Tribunal. The Chairman stated that if he considered the parties acted frivolously, vexatiously or scandalously in their proceedings before the timetabled hearings in 2001 he would entertain an application to strike out the offending litigant's application or Notice of Appearance. In those circumstances the applicant's claim would be struck out or the respondents would be debarred from defending the proceedings."

13. Mr Zanicchi provided yet more documents but failed in any way to clarify the nature of his case. The Post Office (and the Communications Workers Union) considered this material and came to the conclusion that it was largely unintelligible. They therefore gave notice that they would apply to strike-out the originating applications on the basis that the Applicant had behaved vexatiously, scandalously or frivolously.
14. The Respondent made the following contentions which were accepted by the Employment Tribunal:

(i) Mr Zanicchi had failed to comply with the timetable set out on 9 June 2000, had failed to provide a full statement of case by 31 July 2000 and had failed to supply at least 325 pages of documents to the Post Office which had been sent to the Employment Tribunal.

(ii) Not only had the Applicant breached the timetable and failed to send all relevant documents to the Post Office but after a close analysis the Post Office was not satisfied that all papers had been sent and Mr Zanicchi had still to provide a full statement of case.

(iii) Mr Zanicchi had failed to provide witness statements in accordance with the Directions Order made on 9 June. His sex discrimination questionnaire was difficult to understand and interpret. The Post Office was faced with a large number of documents which were illegible and they found it quite impossible to assemble any further documentation in a comprehensive order. A significant part of the documentary material was incomprehensible and the Post Office was unable to review "vast areas on which the Applicant now asserted that he wished to rely".

(iv) The Post Office was extremely concerned at the amount of costs being incurred. It submitted that it was wholly unreasonable and an abuse of the process to continue with ever changing proceedings. The Post Office was still unaware of the case in its entirety which it had to meet and that the proceedings were now "unmanageable". The Post Office invited the Tribunal to consider public interest objectives and submitted that the Employment Tribunal was prevented from providing justice to other applicants and respondents because of the time and cost commitments necessary to manage this application.

15. Similar complaints were made by the Communication Workers Union.
16. At the hearing before the Tribunal the Post Office and the Communication Workers Union relied upon some written submissions made by Mr McWilliams on behalf of the Communication Workers Union in a letter dated 30 October which were treated as written representations. We quote from paragraph 11 of the Decision of the Employment Tribunal:

"(i) The Applicant had failed to provide a statement of case as required by Direction 3 issued on 9 June 2000. The complaints were not in sequence, many new claims were not lodged in the Originating Application and one of the claims was outside the agreed 'cut-off' date of 8 June 2000 (this date had been agreed with the parties).

(ii) The particulars of sex and race discrimination were vague and non-existent making it difficult and in some cases impossible to respond. The claim for victimisation was impossible to decipher. The numberings of the claims in the Originating Application, the Discrimination Questionnaire and the document which was classified as 'Statement of Case' were difficult to follow and it was difficult to comprehend how many allegations there were in total

(iii) The statement of case was not lodged with the CWU within the time scale set by the Tribunal.

(iv) The applicant failed to provide any written witness statements including any witness statement from himself within the set time scale set by the directions.

(v) It was unclear what documents, if any, the applicant proposed to rely upon at the hearing and which allegations were supported by documentary evidence. Some material had been sent to Messrs Simpson Millar, Solicitors in London and that varied from material which had been sent to the Communication Workers and from that which had been sent to the Tribunal. No documents had been sent in association with some allegations. It was impossible to prepare a practicable trial bundle in the circumstances.

(vi) The respondents would find it impossible to contemplate the task of preparing a trial bundle which would assist the Tribunal in dealing with allegations raised by the applicant against the respondents. The variety of the material which had been sent to different interested parties in the litigation (which included the parties themselves and the Tribunal) made it impossible to discern whether reliance was to be placed upon which allegations. Some copied documents had not been accurately copied so that parts of the pages were missing.

(vii) The requirement to provide further and better particulars of the Originating Application had been waived yet the statement of case provided few particulars of allegations of race and sex discrimination or victimisation against the Communication Workers Union.

(viii) The Tribunal had requested that correspondence be kept to a minimum in its notification on 19 January 2000. Plainly that this had been ignored by the applicant who had written frequently to the Tribunal and to the parties. Further this material was vexatious and unreasonable in its enquiry and content.

(ix) The applicant had behaved unreasonably in requesting confidential material concerning certain employees and had put pressure upon Messrs Simpson Millar to secure admissions in relation to some material.

(x) The respondents had a duty to marshal witnesses to be called to refute allegations and the conduct of the applicant rendered it even difficult to call witnesses to refute unparticularised issues raised by the applicant.

(xi) The applicant's conduct rendered the case increasingly unmanageable due to the growth of the case material. His conduct meant that there was consequential uncertainty as to the possible length of a full hearing. The Tribunal had to have regards to the question of costs both to the respondents and to the Tribunal and to have consideration to the effect on Tribunal time in the light of the applicant's conduct. The effect of the applicant's behaviour in this matter would be to deny justice to other potential litigants in other claims.

(xii) Mr McWilliams expressed concerns about the medical circumstances of the applicant and the risk to his health and welfare of the continuation of this litigation.

(xiii) The Tribunal had given warnings to all parties that it would make use of its powers to strike out the Originating Application and/or the Notice of Appearance if it considered it was appropriate. The applicant, despite warnings, had not complied with the Tribunal's directions. The manner in which the applicant had conducted himself throughout the proceedings amounted to vexatious or scandalous conduct and that the Tribunal was justified in striking out the whole of the claim against the Communication Workers Union. The Union considered that the applicant's conduct in the proceedings amounted to an abuse of the process and justified striking out the claims in their entirety. The respondents acknowledged that any litigant had the right to have his civil claim adjudicated upon in good time. However, they contended that the regulations empowering the Tribunal to strike out Originating Applications requested the Tribunal to look to its public duty and, a decision to strike out the application would not be in breach of the individual's rights for access to justice in the circumstances."

17. The Post Office made a number of submissions that were also accepted by the Employment Tribunal. These are to be found at paragraph 12 of its Decision:

"The Post Office contended that:

(a) It was quite impossible to discern what allegations were being relied upon by the applicant since there were no specific allegations and it was quite impossible to meet the non-specific matters which were raised by the applicant.

(b) Since the hearing on 15 September the Post Office had been subjected to an additional enquiry with regard to documents which were released on an undertaking to their advisers in order to ascertain the framework of this application.

(c) It transpired that the respondents had not received over 300 documents which had been sent to the Tribunal but not provided to the respondents as part of the alleged case.

(d) Since many of the documents were illegible and in no logical order it was quite impossible to discern what was being relied upon as part of the framework of the allegations.

(e) The respondents advisers found themselves in the position where they were not able to understand information which was placed before them and the advisers found themselves in the position where they could not even take specific matters to their clients in order to ascertain relevant witnesses or documents in the light of the material which was not disclosed.

(f) Over 80 hours had been spent in seeking to prepare this document and at considerable cost.

(g) Having regard to the Attorney General v Barker decision the Tribunal could be satisfied that there was considerable inconvenience and harassment which was out of all proportion to any gain which might come out of the litigation even if it were possible to discern the issues.

(h) It was quite impossible for the Post Office to put documents into order and to deal with any of the allegations raised in the circumstances."

18. As we have said the Chairman accepted the submissions made by the Post Office and Communication Workers Union. For these reasons the Chairman concluded that Mr Zanicchi had behaved vexatiously and scandalously in his conduct in the proceedings and that it was accordingly appropriate for the proceedings to be struck out.
19. Mr Zanicchi swore an affidavit on 28 March 2001 making allegations of bias against the Chairman. In our opinion this affidavit is largely unintelligible, although extremely verbose and replete with allegations of bias against the Chairman. We derived some assistance from the Chairman's response dated 5 July 2001 and we quote from paragraphs 12 and 22:

"The Tribunal was satisfied at all stages that the respondents were unable to understand the claim that had to be met despite attempts in Tribunal hearing to cajole and persuade the appellant to formulate a comprehensive and comprehensible claim.

I consider the appellant's actions in this matter rendered the case quite unmanageable. The appellant failed to comply with any advice or direction given to him by me."

20. Mr Zanicchi was a litigant in person and although the Chairman suggested at earlier stages in the proceedings that he should make enquiries with regard to representation, Mr Zanicchi had chosen not to accept that advice. The Chairman noted, at paragraph 13 of the Decision:

"He contended that the allegations were quite clear and were quite straightforward and that the difficulties were not his fault."

21. Rule 13 of the Employment Tribunals (Constitution of Rules of Procedure) Regulations 1993 provides, in part, as follows:

(2) A tribunal may

…

(d) …at any stage of the proceedings, order to be struck out … any originating application … or anything in such application … on the grounds that it is scandalous, frivolous or vexatious.

(e) … 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."

22. The main thrust of Ms Lule's submissions related to ground 1 of the amended Notice of Appeal. She submitted that the Employment Tribunal failed to ask whether a fair trial of the issues was possible notwithstanding failures to comply with directions on the part of Mr Zanicchi. She drew our attention to the decision of the De Keyser v Wilson [2001] IRLR 324). This was an appeal from a decision of the Employment Tribunal that had struck out the employer's Notice of Appearance on the grounds that it had sent instructions to a medical specialist. This included irrelevant and abusive material. The Employment Tribunal concluded that the employer had conducted the proceedings in a scandalous manner. The Employment Appeal Tribunal, presided over by the President, Sir John Lindsay, at paragraphs 24 and 25, cited from a decision in the High Court to the effect that proceedings should not be struck out in the absence of deliberate disobedience or failure to comply with orders of the Court or "wilful deliberate or contumelious disobedience" and that in such circumstances a Court should not strike-out proceedings if a fair trial were still possible. In response Mr Gorton, who appeared on behalf of the Post Office, drew our attention to the as yet unreported decision of Terry v Hoyer [2001] EWCA Civ 678. This was a case where an application for unfair dismissal had been struck out under rule 13(2)(e) where the Applicant deliberately failed to comply with orders and has also pestered and been abusive to the Respondent and its Solicitors and the Chairman of the Employment Tribunal. It was argued before the Court of Appeal that the Employment Tribunal had been wrong to strike-out the proceedings as nothing had occurred to present a fair trial still taking place and, further, allowances should be made for the fact that the Applicant was a litigant in person. Pill LJ had this to say, at paragraph 16:

"I make the general observation that I do not accept that conduct is incapable of being scandalous or frivolous such as to justify a strike-out within the meaning of the rules only if there cannot eventually be a fair trial notwithstanding that conduct. There is conduct which no court or tribunal, with its necessary concern for the proper administration of justice, could tolerate. Courts and tribunals must be concerned to do justice. They must, in doing that, have regard to the interests of litigants in general, to the proper use of court time and to the need to ensure respect for courts and tribunals in the community."

23. Arden LJ had this to say, at paragraph 35:

"The essence of the appellant's case before this court is that the reaction of the Tribunal in the present case was, and here I quote, 'too vigorously draconian' in proportion to the default before it. No challenge was or could be made to the existence of the power to strike-out. That power primarily exists to protect the other party in the case. … "

24. Ms Lule submitted that the application to strike-out was heard at the end of October and so far as the Post Office was concerned, the hearing was not to take place until January so a fair trial was still possible.
25. For the purposes of short-hand we would refer to conduct within rule 13 as "abusive conduct". Such conduct may take many forms. Clearly in cases where there is a failure to comply with a case management decision and there has been no contumelious behaviour the possibility of a fair trial still taking place is likely to be of considerable significance. In cases where there has been deliberate and contumelious failure to comply with orders of the Tribunal the fact that a fair trial may take place is perhaps less significant. In our opinion, so far as this case is concerned, where the Applicant has persistently failed to put his case in an intelligible manner and has failed to comply with orders designed to ensure a fair trial, a Respondent must at some stage be entitled to seek an order striking-out the proceedings as the rule provides. Even were we to assume that the Applicant's failures were not the result of deliberate defiance but flowed from a lack of understanding on the part of a litigant in person who suffered from clinical depression or stress, the failures as set out by the Employment Tribunal in its Decision were of such magnitude and significance so far as the fair conduct of the proceedings was concerned that it seems to us the Employment Tribunal's decision to strike-out the proceedings was well within its discretion.
26. Although the Employment Tribunal did not state expressly that a fair trial was impossible on the dates fixed for the hearings, we are persuaded that the Employment Tribunal was so persuaded partly because the Applicant had shown that he was in effect incorrigible. We draw attention to some (but not all) of the matters that were accepted by the Employment Tribunal:

(a) Mr Zanicchi's conduct had led to an inordinate amount of costs being wasted. The Post Office had to spend many hours attempting to understand the nature of the case and spent some 80 hours going through the latest documents.

(b) The proceedings were unmanageable

(c) There was an element of harassment

(d) The Respondent was still not in a position to file witness statements, it did not know the nature of the case it had to meet and it could not prepare for a hearing. This had been accepted by the Employment Tribunal when extending the Respondent's time to file witness statements and a response to the Applicant's case to 31 October on the basis that the Applicant would by then have complied with his obligations. He had not done so.

(e) The Applicant's failures to make proper disclosure and ensure that all documents (let only legible copies) had been sent to the Respondent.

(f) The Employment Tribunal was prevented from providing justice to other parties because of the time necessary to manage this particular application.

(g) The above conduct had been persisted in by the Applicant despite the clearest warnings from the Employment Tribunal and advice to seek legal representation.

(h) In our opinion, even if the Applicant had turned over a new leaf and decided to comply with his obligations shortly after 31 October, we do not consider that a trial could have taken place on 15 January 2001. We say this partly because the time of year would have inhibited preparation (the Christmas holidays forming part of the intervening period) and also because of the amount of time and work necessary to prepare the case.

27. It is convenient at this point in time to dispose of the third ground of appeal that the Tribunal failed to consider other methods of ensuring compliance with its directions. It was suggested to us that the Applicant could have been required to deposit £150 under rule 7(4). It seems to us that the application of rule 7(4) would not have ensured that the matter could be tried in January. We did explore whether an Employment Tribunal could have made an "unless" order but we are satisfied that it is certainly not the practice of Employment Tribunals to make "unless" orders. There is no provision in the rules of procedure that entitled them to do so and, furthermore, adequate warnings had been given and an "unless" order would not, in our opinion, have enabled a fair hearing to take place in January. It would not have been complied with.
28. For these reasons the first and third amended grounds of appeal cannot succeed.
29. The second ground of appeal is that the Employment Tribunal failed to take account of a number of relevant considerations including the Applicant's mental state and his application for an extension of time to comply with directions and his efforts to comply with directions and the strength of his claim together with the Respondent's failure to comply with directions. It seems to us that the Employment Tribunal did take the Applicant's personal circumstances into account and had given him a very great deal of leeway. Any adjournment would have led to further delay of a case which was almost a year old and was well within the proper exercise of the discretion to decline to extend time further. Further, there was little evidence as to the Applicant's mental state before the Employment Tribunal. His efforts to comply with directions compounded rather than cured any problems. Ms Lule submitted that there had been some attempt at compliance with the order of 9 June the statement of case, although she conceded it was rambling and lengthy, enabled one to make out complaints of victimisation and discrimination on the basis of sex and race. We are not able to agree with this submission. Ms Lule also submitted that his failure to comply was not deliberate. When Mr Zanicchi was told not to use manuscript he tried to produce typed documents. It seems to us however that, as the Tribunal described, Mr Zanicchi continued to produce illegible documents. We accept the submission made by Mr Gorton that at the time the matter came before the Employment Tribunal the Respondents still did not know what the Applicant's case was, they did not know what the relevant documents were and they had no witness statement. They were no further forward than they had been in June. So far as Mr Zanicchi's mental state was concerned, he clearly had sufficient understanding of the proceedings to make his own application to strike-out; see page 138 of the bundle. Ms Lule submitted that Mr Zanicchi was quite capable of putting his case in an intelligible way; by way of example she pointed to the questionnaire addressed to Mr Ian Bough at page 156 of bundle 2. While it is true that the questionnaire in box 2 starts off in a comprehensible manner, it has to be noted that there then followed 13 ½ pages of unintelligible verbiage from which it is quite impossible to understand the nature of the complaint. So far as the suggestion is concerned that the strength of Mr Zanicchi's claim was of relevant consideration, as we have pointed out it is impossible to identify what that claim is and, accordingly, wholly impossible to identify its strength.
30. Ms Lule submitted that Mr Zanicchi had seen the error of his ways and would now comply with directions and produce a statement of case and witness statement. We cannot accept that Ms Lule is correct. Even at today's date Mr Zanicchi has not produced a statement of case or witness statement.
31. In our opinion the Employment Tribunal was wholly correct to have regard not only to the interests of the Applicant but also to the interests of the Respondent and other litigants. Allegations of race and sex discrimination should always be taken extremely seriously by public authorities such as the Post Office and the Employment Tribunal was entirely correct to have regard to the enormous cost both in money and resources that the Post Office had to expand when dealing with this case conducted in an abusive manner. Further, Employment Tribunals are heavily over-stretched and entitled, if not bound, to have regard to the disproportionate amount of resources such abusive conduct of proceedings causes and the effect this has on other cases and the delay that is caused to other litigants.
32. We now turn to deal with the fourth ground of appeal, namely that the Tribunal failed to have regard to the general principle discriminatory cases should not be struck-out except in the very clearest circumstances. Ms Lule drew our attention to the decision of Anyanwu v South Bank Students Union [2001] IRLR 305 HL. Lord Steyn had this to say, at paragraph 24:

"In the result this is now the fourth occasion on which the preliminary question of the legal sustainability of the appellant's claim against the university is being considered. For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. … "

33. Lord Steyn's dicta were made in the context of the law as to res judicata and as to the meaning of the word "aids" in section 33(1) of the Race Discrimination Act 1976 Lord Steyn did not have in mind abusive conduct as found by the Employment Tribunal in this case and in our opinion where abusive conduct is shown on the part of an Applicant in a case of race or sex discrimination the fact that the claim is for race or sex discrimination can have, at best, only a modest impact on its decision whether or not to strike-out and certainly cannot stand against the other matters identified by the Employment Tribunal in coming to its conclusion to strike-out.
34. It follows, therefore, that as we have rejected all the grounds of appeal, the appeal must be dismissed.
35. Before we conclude this judgment we would like to express our gratitude to both Ms Lule and Mr Gorton for the helpful and full yet succinct submissions they made.