United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JULIAN MILFORD (of Counsel) Instructed by: Messrs DMH Stallard Solicitors Gainsborough House Pegler Way Crawley West Sussex RH11 7FZ
For the Respondent	MR KEITH BRYAN (of Counsel) Instructed by: Messrs Thomas Eggar Solicitors The Corn Exchange Baffins Lane Chichester PO19 1GE


 


SUMMARY

PRACTICE AND PROCEDURE: Striking-out/dismissal

Striking out – principles in Blockbuster Entertainments v James [2006] IRLR 630 applied – appeal allowed.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr David Hazelwood against a judgment of the Employment Tribunal (Employment Judge Scott) dated 4 September 2008 striking out his claim for disability discrimination.
2. Mr Hazelwood was employed by Mr Eagle as a designer/gardener from 1 August 2005 until 17 December 2007. He had some time off work with depression during the summer of 2007. On 17 December 2007 Mr Eagle told him that he was redundant and gave him an ex gratia payment in the sum of £6,000. On 13 March 2008 Mr Hazelwood brought proceedings in which he claimed, in particular, unfair dismissal and disability discrimination. His stated disability was depression. In his response to the claim Mr Eagle denied that Mr Hazelwood was disabled for the purpose of the Disability Discrimination Act 1995.
3. On 16 April 2008 an Employment Judge gave directions relating to the question whether Mr Hazelwood was a "disabled person" for the purpose of the Disability Discrimination Act 1995. He directed that Mr Hazelwood must obtain a report from a qualified medical practitioner to deal with the issue by 28 May 2008. The directions contained a long list of relevant questions for the qualified medical practitioner to answer. He further directed that by the same date Mr Hazelwood should provide a statement giving full particulars of the precise effect of the alleged disability on his ability to perform normal day-to-day activities.
4. I should say a word about these directions. They were appropriate and helpful case management directions. The list of relevant questions for the qualified medical practitioner was lengthy because the 1995 Act requires a number of different, interlinked, questions to be considered in deciding whether a person is disabled. The statement was ordered to be provided on the same date as the report (rather than prior to it). Mr Bryant tells me that this is common practice; I can see why this should be. They are linked parts of the preparation of the issue. Often, for example, the medical practitioner will obtain and comment on the medical records as part of his report. Often it will help in the preparation of the statement to know what the medical records and the medical report say.
5. There was delay in obtaining the medical report. An extension of time was granted for service of the report until 25 June. Neither a report nor a statement was served. On 25 July the Tribunal wrote to Mr Hazelwood's solicitors saying that it was proposed to strike out the disability discrimination claim on the grounds that the claim form did not specify the disability and on the grounds of non-compliance with the directions given on 16 April. The letter told Mr Hazelwood's solicitors that they might show cause why the order should not be made.
6. On 8 August Mr Hazelwood's solicitors wrote a full reply. On the question of provision of a medical report they set out the difficulties they had. They had been newly instructed on 22 May 2008. They did not receive the order from Mr Hazelwood's previous solicitor, and eventually obtained it from the Tribunal on 17 June. They immediately asked Mr Hazelwood's GP to provide the report, but he declined to do so. They made enquiries of consultants. The cost of a report was substantial, so they required confirmation of cover from Mr Hazelwood's legal expenses insurers. This was received on 4 August. They had arranged for a consultant to see Mr Hazelwood on 21 August and provide a report 2 weeks thereafter.
7. They then said –

"We submit the order to strike out should not be made on the basis that we anticipate that a report will be available by mid-September. The prejudice to the Claimant in the event of strike out is extreme. He would not be able to pursue the disability claim. The prejudice to the Respondent if the matter proceeds is delay of a few weeks which in the context is minimal.

The failure to comply with the order is neither intentional nor excessive."

8. On 4 September the Employment Judge struck out the disability discrimination claim, giving extremely short reasons. The relevant paragraph reads –

"The Claimant has failed to give an acceptable reason why such an Order should not be made. Not only has the Claimant failed to produce a medical report, he has also failed to produce a statement as required by paragraph 3 of the Order dated 16 April 12008. The Tribunal therefore orders the claim to be struck out."

Submissions

9. On Mr Hazelwood's behalf Mr Milford submits that the Employment Judge has failed to apply a well known line of authority concerning the power to strike out for non compliance with an order: see Arrow Nominees Inc v Blackledge [2001] BCC 591, De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140, Weir Valves & Controls (UK) Ltd v Armitage [2004] ICR 371 and Blockbuster Entertainments Ltd v James [2006] IRLR 630. Nothing in the Employment Judge's reasoning deals with the issues raised by those cases, which include the question whether it was proportionate to strike out and whether a fair trial remained possible. If those cases had been applied, the disability discrimination claim would not have been struck out.
10. On Mr Eagle's behalf Mr Bryant submits that it can be deduced that the Employment Judge applied the line of authority and reached a permissible conclusion that it was proportionate to strike out the disability discrimination part of the claim. Mr Hazelwood had begun his proceedings at the end of the permitted period. He had several months to comply with the order. He had been professionally represented throughout. He had been reminded of the requirements of the order and given every opportunity to put forward an acceptable explanation. Even by 4 September neither requirement of the order had been satisfied. Mr Eagle was an individual, not a large corporation employing many people. Mr Bryant referred to Tisson v Telewest Communications Group Ltd [2008] UKEAT 0607/07, BAILII: [2008] UKEAT 0607_07_1902, at paragraph 38. He submitted, that for the purposes of considering whether non compliance with an order was deliberate, the word deliberate effectively meant "non-accidental". He submitted that, if necessary, the appeal should be adjourned and the matter remitted for the Employment Judge to give fuller reasons.

Conclusions

11. The principles which are to be applied when considering whether to strike out for non compliance with an order ought by now to be well known to every Employment Judge. No purpose would be served in setting out the principles extensively in this judgment.
12. It will suffice to cite two paragraphs from Weir Valves and Controls (UK) Ltd v Armitage (2004) ICR 371, a case which dealt specifically with the power to strike out in the context of disobedience to a court order.

"17. But it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been cause and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.

18. In the Civil Procedure Rules 1998 there is, at Part 3, Rule 9, a checklist to be considered upon an application for relief from a sanction. The Employment Tribunal Rules of Procedure 2001 contain no similar checklist; but the overriding objective in Rule 10 requires a broadly similar approach. As Millet J said, in another context, in Logicrose Ltd v Southend United Football Club Ltd:

'The Court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice.' "

13. In Blockbuster v James Sedley LJ approved the line of authority of which Weir Valves is a part. The principles in these authorities are, as he made clear, addressed to the question whether striking out is a proportionate response: see paragraph 5. He remarked upon the importance that, in answering that question, there should be a structured examination of the matter: see paragraph 21.

"It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences."

14. The value of CPR rule 3.9(1) is that it provides the necessary structure.
15. In this case there is no sign at all in the Employment Judge's terse reasoning that any consideration was given to these principles. I reject Mr Bryant's submission that the Employment Judge implicitly considered the question of proportionality. It is really inconceivable that any Employment Judge, properly considering that issue, would not mention and consider the letter dated 8 August. If that letter was correct, a consultant's report had been commissioned at substantial expense during August and was due at or close to the time when the striking out order was made. No hearing was imminent. Why not give a final deadline and see what the report said? At the very least if the proper test was applied reasoning on this question was required.
16. To my mind it goes further. Any Employment Judge, applying his or her mind to the relevant test, reading the contents of the letter dated 8 August, knowing that a report had been commissioned at substantial expense and was shortly due, and knowing that there was no imminent hearing date, would refrain from immediate striking out. Nor do I think immediate striking out could be justified by non-service of the statement of Mr Hazelwood. As I have explained, the Tribunal's directions called for simultaneous service of the statement and the report for good reason.
17. These being my conclusions, no useful purpose would be served in remitting the matter for further reasons, a course which to my mind would be inappropriate in respect of an interlocutory matter at an appeal held many months afterwards. It follows that the appeal will be allowed and the striking out order set aside.