United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant

MR ANTHONY JAMES (The Appellant in Person)

For the First Respondent

MR DALE MARTIN (Of Counsel) Instructed by: Messrs Bird & Bird 90 Fetter Lane London EC4A 1JP

SUMMARY

Practice and Procedure

Strike out case. ET struck out two claims for failing to comply with tribunal orders. Whether a proportionate sanction; whether they erred on a proper understanding of facts. Remitted to different ET. Also unsuccessful allegations of bias.


 


THE HONOURABLE MR JUSTICE ELIAS

1. This is an appeal from a unanimous decision of the Employment Tribunal sitting at London (Central) in which the Tribunal struck out the Claimant's two complaints. The Appellant who was the Claimant before the Tribunal has appeared in person. The Respondent company was represented by Mr Martin of Counsel.
2. The material facts are for the most part summarized in the Reasons given by the Employment Tribunal for its decision. We will briefly deal with the material aspects. The Claimant served two Originating Applications, one on 28 November 2003, and a second on 15 July 2004. In these applications the Claimant, who is black, contends that he is being victimised, harassed and discriminated against because of his race by white management and staff of the Respondent company. These allegations are categorically denied.
3. The two complaints were due to be heard on 24 January 2005 with an estimated length of hearing of six days. Shortly before that hearing the Claimant had presented a further Originating Application which was accepted by the Tribunal on 17 January 2005 and served upon the Respondent by notice on the following day. Not surprisingly, the Respondent had not by the date of the hearing presented any response to that fresh application. The Claimant nonetheless applied to consolidate that claim with the other two so that they could be heard together. The Tribunal declined to make such an Order given that no response form had even been entered. Without such a form the Respondents would have had no right to take part in the proceedings in relation to that complaint.
4. We note in passing that the Appellant in his Skeleton Argument is critical of the Tribunal for not allowing this fresh complaint to be joined with the other two. However, that was not a Ground raised in the Notice of Appeal and in any event the Tribunal are plainly justified in refusing to join that fresh claim.
5. The Respondents then at the hearing on 24 January made an application to strike out the two complaints essentially because of various alleged failings by the Claimant to comply with a number of Directions from the Tribunal. In order to understand the basis of this application it is necessary to set out some of the history of the litigation.
6. The Claimant's first Originating Application in 2003 came before a Chairman (Ms Lewzey) for a Directions Hearing on 24 June 2004. She ordered the Claimant to particularise the Claim so that the Respondent could properly understand the case it had to meet. There had in fact been some Particulars provided in response to an earlier Order of the Tribunal made on 11 February 2004. But those Particulars were not in the opinion of the Tribunal Chairman sufficiently detailed.
7. The further Particulars were to be provided by 22 July 2004. The Claimant at that hearing on 24 June also sought to amend his Originating Application to include additional complaints. But they had taken place since the Original Application had been presented and the Chairman refused the Application but indicated that a fresh Originating Application could be lodged. Mr James contended that the Chairman gave no such indication at the hearing. But whether she did or not it is plain that this option was identified to him in her decision at paragraph 4.2. He did subsequently lodge this second Application, as we have indicated. That focused on later alleged acts of discrimination, harassment and victimisation.
8. The Tribunal record that the Claimant never did provide the further Particulars provided by Ms Lewzey. In fact that is incorrect as Mr Martin concedes. The position was that he did provide detailed further and better Particulars. They were dated 17 July 2004, that is within the time scale fixed by the Tribunal Order. The Respondents say that they believe that these Particulars have been backdated since they were not received by the Respondents until shortly before a later pre-trial conference on 5 October. (We will return to that in a moment).
9. There is no doubt that the Respondent sent various letters to the Applicant seeking these further Particulars and they indicated that they would be making a strike out application if they were not provided. Unfortunately, there is no evidence before us as to when the Particulars were received by the Tribunal and whether that was in time or not. The Respondents also submit that the Particulars provided were not in full compliance with the order. However, it is right to say that it has never been determined whether the Particulars were provided in time or whether they were in proper compliance with the terms of the Order. On the face of it, it must be said the Particulars do provide some detail of the case which the Claimant was advancing.
10. The next relevant matter is the pre-trial conference on 5 October 2004 held before another Chairman, Mr Pearl. By then the second Originating Application had been presented. The Respondents were considering making a strike out application for a failure to comply in time and in sufficient particularity with the Order which had been made by Ms Lewzey. They were not in the event allowed to pursue that Application because the Chairman was not prepared to convert the pre-trial conference into a pre-trial review which would enable that to be done. He considered that he was forbidden by the rules from doing that. He apparently indicated to the Respondents that they should "keep their powder dry", a remark which Mr James considered to be offensive and in some way indicative of bias but which seems to us to be no more than a figurative use of language.
11. Certain Orders were made by Mr Pearl with the consent of both parties. The two complaints he ordered should be heard together on 24 January 2005. In addition, other Orders were made including that each party should prepare and supply to the other a list of documents in their respective possession, custody or power relating to matters in issue. They had to be provided by 16 November 2004. It was also directed that the parties should agree a trial bundle and that there should be a simultaneous exchange of witness statements on 17 December 2004. That was to include each of the witnesses that either party was intending to call to give evidence at the hearing.
12. The Respondents complied with the Directions as to discovery sending a list of the relevant documents to the Claimant on 16 November 2004 as required. The Claimant, however, did not comply. On 6 December the Respondents wrote to him indicating that he was in breach of the order in requesting the list. He was also reminded of the date of the exchange of witness statements. On 16 December the Claimant wrote to the Tribunal saying he was too distressed to meet the deadline for exchanging witness statements and seeking an extension. The Respondents consented to that and time was given until 7 January 2005. The Respondents also reminded the Claimant by a letter dated 30 December that they required his list of documents and that if he failed to provide it then they would have to apply to the Tribunal for an Order.
13. The Claimant agreed to visit the Respondents' solicitors on 7 January 2004 so as to effect disclosure of documents and to deal with the exchange of witness statements. There was an exchange of witness statements on that date but the Tribunal observed that for some reason, which it did not understand, the Claimant refused to sign the copy of his witness statement or to have that of his other witness signed. But the substance of the statements was made available to the Respondents. Still, however, no list of documents was provided.
14. Further arrangements were made for the Claimant to attend the Respondents' solicitor's office on 10 January 2005. He failed to appear and another arrangement was made on 14 January. The Respondents' solicitors' were intending to copy any documents in the Claimant's possession which he was relying upon. The Claimant did in fact attend the solicitors' office on that date. He had the documents in a bag but he refused to show them to the Respondents and he would not allow them to be copied. He subsequently claimed that he had been too ill to allow this and also he said that he could not afford to have them copied. The Tribunal understandably referred to this as stretching the grounds of credibility since he had attended the office and it was always possible for the Respondents to have photocopied these documents. It should be added that he at no stage gave any particulars of any illness he was suffering from and no medical evidence was placed before the Tribunal.
15. Further arrangements were made for the Claimant to attend the Respondents' office again on 18 January. He did not attend, saying he was too ill to do so. The Respondents at this stage, facing a substantive hearing in the very near future, understandably applied urgently on 19 January by fax for disclosure. A copy of the Application was sent by courier to the Applicant. And he was telephoned by the Respondents to notify him of this Application. The Application was considered by Mr Pearl on 20 January. He made an Order of Disclosure requiring the documents to be produced by 4.00 pm on 21 January.
16. We interpose to note that Mr James has suggested that there was something unfair in this procedure because he was not able to make representations. But of course he was already under an obligation to provide these documents and was late in doing so. So there is no substance in that point.
17. Mr Pearl did not in fact make precisely the order that the Respondents sought. They had wanted the claim to be struck out in the event of non-compliance. That is in common parlance they had sought an "unless" order. He did not make such an Order but he did make the order that the discovery should be made. He also instructed officers of the Tribunal to telephone the Claimant to notify him of the order and a note on the Tribunal file indicates that four such messages were left on the Claimant's answer phone that morning. He says he did not receive the notice of this until at least the day afterwards. But still he refused or, I should say, he failed to comply with the Order.
18. On the day of the hearing, on 24 January, he attended shortly before the hearing was due to start with some 60-pages of documents on which he intended to rely. They had not of course been copied or served on the Respondent. Furthermore, he attended with his own Original Witness Statement amended. It is right to say, however, that these amendments were very minor as we understand the Chairman himself observed and, of themselves, it is difficult to see how these amendments would have caused any material prejudice to the Respondents.
19. Again, he said that he had not provided these amendments or the documents because of illness and because he was in financial difficulties. The Claimant also produced at this hearing an audio tape of an incident which he said had occurred at the workplace in which he wanted to play to the Tribunal. This also had never been disclosed to the Respondents. They were unaware of its contents. It was against this background that the Respondents sought to have the case struck out. They relied specifically on the failure to comply with more than one order for disclosure but also the failure to provide the amended Witness Statement and to comply fully with the Disclosure Order that had been made by Ms Lewzey.
20. The Tribunal, having set out the background in slightly fuller form than we have summarized it here, then set out its understanding of the relevant legal principles. They did so by reference to the decision of the Employment Appeal Tribunal in Bolch v Chipman [2004] IRLR 140.
21. That is a decision of this Tribunal given by the Burton P and is the most recent decision in this area. The Tribunal summarized Burton P's judgment insofar as it laid out relevant principles in six paragraphs of paragraph 18 of its decision.

"(i) there must be a conclusion by the Tribunal not simply that a party has behaved unreasonably but that the proceedings have been conducted by or on his behalf unreasonably;

(ii) assuming there to be a finding that the proceedings have been conducted in that way that is not the final question so far as leading on to an Order of strike out;

(iii) that the case of De Keyser v – Wilson [2001] IRLR 324 makes it plain that there can be circumstances in which a finding can lead immediately to a strike out, for .example in a case of wilful, deliberate or contumelious disobedience of the Order of a court;

(iv) that in ordinary circumstances, i.e. where there has not been such disobedience, what is required before there can be a strike out is a conclusion as to whether a fair trial is or is not still possible;

(v) Employment Tribunals must have the power to manage cases and to make Orders that unless their Orders be complied with, claimants will be struck out and that, if there are breaches of those Orders, then, pursuant to the guidance in De Keyser, absent a proper excuse, wilful disobedience of a Court Order can lead to a strike out;

(vi) in the event that a Tribunal concludes that the proceedings have been conducted in breach of the Rules and that a fair trial is not possible, there still remains the question as to what remedy the Tribunal considers appropriate, which is proportionate to its conclusion, and that, in the absence of a conclusion that a fair trial is no longer possible, a proportionate remedy or punishment may be the one which does not drive the Claimant from the judgment seat. The Tribunal has also borne in mind, in the light of the submissions of the Claimant, Article 6 of the European Convention on Human Rights and the right to a fair trial."

22. In giving judgment in that case Burton P made reference and followed an earlier EAT decision, a judgment given by Lindsay J in De Keyser v Wilson [2001] IRLR 324. The principles enunciated in these two cases in turn drew upon certain authorities in the ordinary Courts and in particular a decision of the Court of Appeal in Arrow Nominees v Inkley Blackledge [2000] 2 BCLC 167. It is pertinent to make observations about certain dicta of the Judges in that case. The facts there were that a party admitted in litigation that he had forged documents and he was persisting in his object of frustrating a fair trail even after the Court had given him an opportunity to reveal the full extent of his wrong-doing. Not surprisingly the Court of Appeal held that the Judge was right to strike out the Claim.
23. Chadwick LJ relied in turns on a decision of Millet J. as he was in Logicrose Ltd v Southend United Football Club [1998] The Times 5 March. The gist of his decision was that the object of the rules as to discovery are to secure a fair trial and that the party should not be deprived of his right to a proper trial as a penalty for disobedience of the rules unless by failure to comply he had rendered a fair trial impossible to achieve. But it is pertinent to note what Chadwick LJ understood by a fair trial. He said this at paragraph 55:

"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."

24. Ward LJ in his judgment observed that the Court must now have in mind the overriding objective when exercising its strike out discretion. That, of course, is true in this Court and in Employment Tribunals. He observed that the question whether a fair trial could be held was a factor of considerable weight but was not necessarily conclusive in all circumstances. He pointed out that having regard to the overriding objective it was necessary to consider whether the misconduct, that is the failure to comply with the order had added to the cost and time of the trial and whether it had affected the allocation of resources in other cases. He was critical of the Judge for not giving due consideration to these factors. At paragraph 73 he said this:

"The Judge did not however treat cost and time as elements of the overriding objective. He did not appear to allot to the case an appropriate share of the Court's resources while taking into account the need to allot resources to other cases. In this day and age there are elements of case management which must not only be seen to have been placed in the scales but also given due and proper weight when assessing how justice is to be done to the parties and to other litigants."

25. He also observed that the question of whether or not a fair trial could be heard was in any event not the only material factor albeit it would weigh heavily in most cases. It follows therefore that even where there may be a fair trial as between the parties - and that will often be possible if there is an appropriate adjournment, even where there has been a deliberate breach of Court Orders - the effect on other litigants who have a claim on the resources of the Court is also a material factor to consider. That will tell against losing the trial slot, particularly if it is of a significant length of time.
26. Having set out the relevant legal principles the Tribunal then set out its conclusions:

"19.1 that there was in this case wilful and deliberate disobedience by the Claimant of the Orders which were made for disclosure of documents. The lengthy period over which the Claimant was in breach of those Orders and his failure to show any degree of co-operation with those Orders and with the Respondent in order to avoid the problem of arriving at a merits hearing with large quantities of material which had not been disclosed to the Respondent make it plain to us that the Claimant has at all stages deliberately sought to withhold disclosure in an attempt not to co-operate with the Respondent or the Tribunal and for some tactical advantage to himself sought to keep up his sleeve his documents and the audio tape until the very day of the Hearing itself.

19.2 Equally, we are satisfied that the failures with regard to the 0rders for disclosure are but one example of the unreasonable conduct of the proceedings by the Claimant, otherwise evidenced by (a) his failure to comply with, the Order for particulars made by Ms Lewzey, (b) his failure to effect proper exchange of witness statements by providing a signed copy of his witness statement, and (c) his appearance at the Hearing with an amended witness statement which he had made no attempt whatsoever to serve upon the Respondent. We are satisfied that at all stages the Claimant has pursued a course of brinkmanship. He undoubtedly has strong views about the behaviour of the Respondent and considers the Respondent's legal representatives' actions on their behalf to be merely "legal wrangling". But we are satisfied that there has been wilful and persistent disobedience of the Tribunal's Orders and a real, failure on the part of the Claimant to comply with his obligation to assist the Tribunal in furthering the Tribunal's overriding objective of achieving justice between the parties."

27. The Tribunal then considered what the consequences would be of allowing the case to go ahead:

"20. If we were to permit these proceedings to go ahead, it would mean that the Claimant's documents would now need to be copied and those and the audio tape which he has produced disclosed to the Respondent and relevant copies and/or transcripts made for the use of the Tribunal. It would mean that the Respondent must be given an opportunity to consider the documentation and the tape and the Claimant's amended witness statement, take instructions from their clients, consider whether or not any of their witness statements needed amending or whether additional witnesses needed calling, and whether or not they need put in to the bundle any additional documentation arising out of that produced at the 11^th hour and the 59^th minute by the Claimant.

21. The effect of such a course would inevitably mean that there would have to be considerably delayed a six day Hearing, which has been arranged for some months, involving the calling of eight witnesses by the Respondent who are here to give their evidence, as well as the Claimant and his witness. It seems to the Tribunal that inevitably a lengthy adjournment would be necessary in order to enable, at the very least the Respondent to consider the new material. In those circumstances, not only do we consider that there has here been wilful and deliberate disobedience of the Tribunal's Orders by this Claimant, but we also consider that it is no longer possible at this Hearing to have a fair trial of the issues in this case within the time allocation provided. Furthermore, we are satisfied that an adjournment would occasion substantial additional inconvenience and cost to the Respondent, cost which the would be unlikely to be able to recover from the Claimant even if the Tribunal made an Order for costs against him, in the light of the fact that he has been at pains to point out that his financial circumstances are precarious; and would have the effect of a six-day hearing slot at the Tribunal effectively being wasted when other Tribunal cases could have been listed to take the place of this one.

22. In all the circumstances, we consider that an Order striking out the Claimant's claims in the first two Originating Applications, draconian Order that it be, is the only proportionate and fair course to take in this case given that we do not consider that a fair trial is currently possible and, furthermore, having regard in particular to, our finding that the Claimant has wilfully and deliberately on more than one occasion flouted the Orders of the Tribunal.

23. The Tribunal has reminded itself at all stages that an Order to strike out is an Order only to be adopted in exceptional circumstances and where no other sanction can appropriately deal with any default on the part of the party in default. We also remind ourselves that based upon our knowledge, there appears to be an increasing culture developing of Tribunals making Case Management Orders which are not complied with and quite often flagrantly flouted by the parties. These are Orders which are made for the benefit of the parties in order to enable the proceedings to be properly prepared for hearing in an economic way. This case is in our view a particularly bad example of the flouting of the Tribunal's orders."

The Grounds of Appeal

28. The Ground of Appeal were prepared by the Appellant himself. There are numerous Grounds advanced. We intend no criticism of the Appellant when we say that there is some overlap and some points which are plainly without merit. We think, however, that the Grounds can be fairly reduced to a number of headings.
29. First, it is said that the decision of the Tribunal was perverse. Mr James contends that no reasonable Tribunal properly applying the principles of law which the Tribunal had indeed set out, and he does not dispute that they were inaccurate, could have concluded that striking out these claims was a proportionate sanction for his wrongdoing. He says for example that the Tribunal could have taken other steps short of a strike out. For example, adjourning the case for a period to enable the Respondents to consider the documents. And in this context he submits that the documents (which he was wishing to provide) were not in truth documents which would take the Respondents by surprise; rather they were documents that would be known to the Respondents and, which he was seeking to utilize merely for the purpose of supporting aspects of his own case which had already been made known to the Respondents or for rebutting aspects of the Respondents' case as set out in the Notice of Appearance.
30. Second, he submits that the Tribunal acted under a misdirection. This flows from the fact that the Tribunal observed, as we have indicated, that the Claimant had never provided any Particulars pursuant to the Order of Ms Lewzey whereas it is plain that he did do so. He says that that is a fundamental error upon which the Tribunal decision is premised and that given that error the decision cannot be sustained.
31. Third, he says that the Tribunal was biased, in particular the Chairman. He submits that the lay members simply followed the views of the Chairman without exercising any independent judgment but that we have to say is mere assertion and no more. He has sworn an affidavit in this matter setting out what he considers to be the grounds of bias. The Chairman in his response merely stated that the facts of the matter were as set out in a subsequent decision of the Tribunal relating to costs. There was a statement provided by one of the wing members and also by the solicitors for the Respondents setting out their version of events. We will come back to that aspect of bias shortly.
32. There were then a number of miscellaneous matters which we will deal with briefly when we have dealt with those three principal issues.
33. As to the perversity argument, it has been said on many occasions in this Tribunal that it is a very difficult row to hoe for a party to successfully allege that a Tribunal which has properly directed itself in law has reached a perverse decision, i.e. a decision which no reasonable Tribunal could reach in normal circumstances of the case. We remind ourselves that of course it is not for us to substitute our views for the Tribunal. The question is whether their decision was a sustainable one and not whether we would have exercised our discretion in the same way.
34. In this case the Tribunal did consider the documents that were provided by the Claimant, Mr James suggested at one point that they were in fact shown to the Respondents without his knowledge. But the Respondent deny that they had ever seen these documents by the time of the decision of the Employment Tribunal and there is no justification at all for considering that the Tribunal would have taken the improper step of disclosing those documents to the Respondent without notifying the Claimant.
35. So the Tribunal did have some appreciation of the nature of the documentation.
36. We consider that if the Tribunal had indeed properly appreciated all the relevant facts, then it would have been a proper exercise of its discretion in this case to take the view that the deliberate and wilful defiance of the Court order leading, as in the Tribunal's view it would have done, to the likelihood of losing the 6-day trial spot was a justification for the strike out. As we have said, one of the factors which has to be borne in mind when determining whether a strike out is appropriate, is as the decision of Ward LJ in the Arrow Nominees case indicates, the public interest in trial dates being held and the claims of other litigants. That was a factor which we consider was properly taken into consideration in this case by the Tribunal.
37. So whilst other Tribunals may have come to a different conclusion, we are not prepared to say that the decision of this Tribunal was so outrageous as to amount to a perverse exercise of its discretion.
38. The second aspect, however, is that the Tribunal misdirected itself by apparently acting on the assumption that the Claimant had never disclosed the further and better Particulars pursuant to the order of Ms Lewzey. As we have said there is no doubt that was an error. Was it a matter which was of any material influence to the Tribunal in this case? We think that it plainly was if one considers the Tribunal's conclusions and in particular paragraph 19.2. It is expressly mentioned there that the breach of the Disclosure order was merely one example of unreasonable conduct by the Claimant.
39. The other examples were the failure to give proper exchange of Witness Statements and of the Amended Witness Statement. However, as we have indicated, that really must be of marginal importance compared with a failure to comply with the order for Particulars. The difficulty here is that there had been no determination as to whether that order had been complied with or not. One can quite understand why the Tribunal assumed that it had not if it was acting under the misapprehension that no Particulars at all had been provided. But in circumstances where the Respondents were not claiming that, but were suggesting that the Particulars had been provided late and were inadequate, then plainly the Tribunal could not properly conclude that there had been a failure to comply without determining that issue. There is no indication that they did that.
40. We bear in mind that striking out proceedings and denying the Claimant the right to a proper consideration of his case is, as the Tribunal itself fully recognized, is an exceptional step to take. We consider that this misapprehension by the Tribunal of the position in relation to the disclosure order does render its conclusions flawed and we are far from satisfied that the conclusion would necessarily have been the same had the Tribunal realized that there had been Particulars provided, and that it was a dispute as to whether or not they had been given in time and were in compliance with the order that had been made.
41. Accordingly, this aspect of the Appeal succeeds.
42. We deal briefly with the question of bias. The Claimant in his affidavit asserted that the Chairman had already formed an opinion of hostility towards him as a black Claimant and had shown contempt for black people in the case. That was mere assertion and the observation was made in any event in the context of an allegation that the whole British judicial system was racist, so it failed to identify any specific complaint against this Chairman.
43. There are four matters which one can conceivably identify from the affidavit which seek to focus on particular conduct as demonstrating bias. The first was that the Chairman apparently refused to identify himself and his Panel. The Claimant said (and this is demonstrated by a document he has produced) that the indication on the notice board in the Tribunal was that the Panel would consist of a man and two women, that is Mr Solomon the Chairman and two women, whereas in fact one of the women was replaced by another man. He suggests that there was something possibly sinister about this and the Chairman was seeking to invite onto the Tribunal somebody who would share his antipathy, as the Claimant saw it, to black Africans. This really is a somewhat outrageous observation to make even in the context of speculation. It is of course quite commonplace for panels to change at short notice for all sorts of reasons and there is nothing sinister about it. This allegation should never have been made.
44. Then it said that, as I have indicated, documents were in fact photocopied and given to the Respondents. That is denied and there is nothing in that point.
45. Third, the Chairman was apparently reluctant to give his full name to the Applicant at the end of the hearing. Quite why the Claimant wanted to know his full name is not clear. In the event the Chairman did subsequently do so. But quite how that demonstrates bias, again we do not understand.
46. Finally, the Claimant says that the Chairman at the end of the hearing, and having found against him, invited the Respondents to make an application for a costs-order. That is categorically denied by Mr Wayne, its solicitor for the Respondents who says that he had instructed his Counsel to make that application. We think there is really nothing in the bias allegations even though it constituted a significant, if not essential ground of this appeal.
47. Finally, there are a number of other matters. We do not pretend to be exhausted of all the points raised but as we say some of them were plainly hopeless as a matter of law. That is not a criticism of Mr James because he is not a lawyer and he presented his case carefully, although unfortunately with unnecessary gratuitous insults.
48. Some of the other matters include these that the Respondent was not in any event entitled to rely upon any failure to provide further and better Particulars because they had chosen not to pursue that application before Mr Pearl at the hearing in October. He bases that on the principle of Henderson v Henderson. That I am afraid is a misconception of that principle. The point here is that the application was never advanced to the Tribunal and therefore no ruling was made and, furthermore the Tribunal refused to allow the Respondents to advance it in any event.
49. Then it is said that, and again this was a relatively significant feature of his argument, that the Chairman had shown bias in part by striking out his claim whereas they had allowed the Respondents to put in their notice of appearance a couple of days late. He said that shows inequality of treatment. There really is no merit at all in that argument. There is a fundamental difference between a party putting something a few days late such as for example would have been the case with the Claimant had he responded to the discovery application some time before 24 January. There is a chasm between that minor error which prejudices nobody and the deliberate and wilful refusal to comply with the rules until the very last moment of the case. The notion of unequal treatment here in this regard is frankly quite absurd.
50. Then there was some dispute as to precisely what had occurred at the Costs Hearing and we were taken to the Witness Statement or the Statement of the Member and that was analysed in some detail but that really has no relevance at the end of the day to any of the substantive points which the Claimant wished to advance.
51. As I say we have not dealt with each and every minor point made in passing by the Claimant but we think we have dealt adequately with the substantial points that he has raised which seem to us to warrant some reasoned response.
52. However, for the reasons we have given we do uphold this Appeal. We consider that the Tribunal did act on a misconception of the extent to which the Claimant had failed to comply with Tribunal orders. We ought to add this however, we are sympathetic and very much share the concerns which the Tribunal expressed about the increasing tendency of parties simply to flout orders made by the Tribunal. We emphasize that in appropriate cases parties must understand that striking out is an appropriate sanction that can properly be invoked particularly in circumstances where there is an element of brinkmanship which is what the Tribunal found here. And exceptionally it may be done even if a fair trial is possible. That said, in this case we consider this Appeal must succeed. The matter ought to be remitted to a fresh Tribunal to re-consider this Application for a strike out.