United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0605/10/CEA

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 17 March 2011

Judgment handed down on 14 July 2011

 

 

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

(SITTING ALONE)

 

 

 

 

FARON FARIBA APPELLANT

 

 

 

 

 

PFIZER LIMITED

GWENAELLE BARTLEY

JUDITH MCDONALD

FRIEDA HOUGHTON RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	PAUL GREATOREX (Of Counsel) Instructed under Direct Public Access
For the Respondents	TIMOTHY PITT-PAYNE (One of Her Majesty’s Counsel) Instructed by: Speechly Bircham 6 New Street Square London EC4A 3LX

 

 

SUMMARY

 

PRACTICE AND PROCEDURE – Striking out

 

 

Employment Judge entitled to strike out claims by claimant who had demonstrated by her disregard for tribunal orders and the allegations made in correspondence against the respondents, their solicitors and the Tribunal (and indeed her own former solicitors) that she was incapable of bringing her complaints to a fair and orderly trial

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

 

INTRODUCTION

 

1.            On 2 June 2008 the Appellant started employment with the First Respondent (“Pfizer”), a pharmaceutical company, as a manager in its Worldwide Regulatory Strategy Europe Department (“WRS-EU”).  She was recruited specifically to work on a project in relation to a product called Lyrica.  She suffers from a disability of which I need not give the details here.  For reasons which were not made clear to me, she is also sensitive about her nationality being identified: since it is not material to the issues which I have to decide, I need say only that she is of Middle Eastern origin. 

 

2.            The Appellant’s employment history with Pfizer was short and troubled.  She had a fall at work which led to her being away for most of August and September 2008.  She says that both prior to that absence and on her return she suffered bullying and harassment at the hands of managers and colleagues.  She raised a grievance on 29 September and, when that was dismissed, a further grievance about its handling dated 29 November.  On 15 January 2009 she was dismissed.  On 14 April she presented a complaint in the Employment Tribunal alleging unfair dismissal contrary to the “whistleblower” provisions of the Employment Rights Act 1996 (she did not of course have sufficient qualifying service for a claim of “ordinary” unfair dismissal) and race and disability discrimination.  Three individual managers were named as respondents alongside Pfizer.  The procedural history thereafter is complicated, and I will have to set it out in due course, but it culminated in an application by the Respondents to strike out the claim.  That was heard at a Pre-Hearing Review before Employment Judge Baron sitting at London South on 10 March 2010. The Judge decided to strike out the claim and to order the Appellant to pay the entirety of the costs of the proceedings, such costs to be assessed in the County Court. 

 

3.            The Appellant has appealed against that decision.  Her appeal was initially dismissed on the sift.  At a hearing under rule 3 (10) of the Employment Appeal Tribunal Rules 1993, at which the Appellant had the advantage of being represented by Mr Paul Greatorex of counsel, I allowed the appeal to proceed to a full hearing, although I made clear that the basis on which I was doing so was that I did not feel able fairly to deal with the complexities of the procedural history in a hearing of that character rather than because I was satisfied that there were arguable grounds of appeal.  The full hearing came before me on 17 March 2011.  The Appellant was again represented by Mr Greatorex.  The Respondents were represented by Mr Timothy Pitt-Payne QC.  The appeal was well and fully argued on both sides. 

 

4.            At the start of the hearing Mr Greatorex made an application that my eventual decision should be anonymised in order to protect the Appellant’s rights under article 8 of the European Convention of Human Rights.  He told me that she did not want her name to appear on any website and that some of the personal information about her appearing in the papers was sensitive.  He was not able to tell me any more than that or to particularise what information was sensitive or why, beyond saying that she particularly did not want her race or religion to be mentioned.  I am not prepared to take that course.  There is a strong public interest in open justice, and I would only be prepared to anonymise this judgment if a cogent and particularised case were made for doing so.  I have, as has appeared above, been prepared not to be specific about her disability or her ethnic origin, since these do not appear material; but this should not, in circumstances where I have been given so little information, be taken as reflecting a considered decision that the matters in question ought to be kept private.  

 

THE PROCEDURAL HISTORY

 

5.            The history of the Appellant’s claim is, as I have said, complicated.  I shall need to set it out at some length, but it is unnecessary that I refer to every detail. 

 

6.            The Appellant’s ET1 was lodged on the last available day before the expiry of the primary deadline.  The brief Details of Claim annexed to the ET1 were preceded by a rubric saying that the Appellant had until a few days previously been engaged in correspondence with the Chief Executive of Pfizer and that she had only that day instructed solicitors, Messrs Davies Arnold Cooper (“DAC”).  She accordingly reserved the right to serve fully particularised and/or amended Details of Claim, and she in fact did so on 5 May 2009.   The Amended Details of Claim ran to some fifteen pages and on their face contain a good deal of detail: however, as will appear, it soon came to be accepted that they needed further particularisation (see para. 8 (2) below).  The heads of claims pleaded were as follows:

 

·       “automatic unfair and detriment contrary to the Public Interest Disclosure Act 1998” [elsewhere referred to as “the PIDA claim”];

·       “automatic unfair dismissal by reason of a failure to follow the statutory dismissal procedures”

·       “race discrimination and victimisation”

·       “disability discrimination, victimisation and failure to make reasonable adjustments”.

 

7.            The Respondents instructed Messrs Speechly Bircham (“SB”), who lodged an ET3 and in due course a Response to the Amended Details of Claim.

 

8.            There was a Case Management Discussion on 3 August 2009 before Employment Judge Baron.  The Appellant was represented by Ms Elaine Banton of counsel and the Respondents by a solicitor from SB.  The representatives were able to agree directions which were carefully recorded by the Judge.  The essential points for present purposes are as follows:

 

(1) It was agreed that the Respondents would give their disclosure first, by no later than 27 October 2009.  The Claimant would then supply any additional documents within 14 days thereafter. 

 

(2) Ms Banton is recorded by the Judge as accepting “that it was necessary for further details of the claims to be provided”.  He continued:

 

“She agreed to supply such further details (taking into account the detailed statutory provisions in respect of each head of jurisdiction) within 28 days after the Respondent has provided copies of documents pursuant to the preceding paragraph.”

 

It is evident from that note that the Appellant’s counsel recognised that one of the defects of the Amended Details of Claim was that, although it contained quite a detailed narrative, it is not possible to identify what acts or omissions are said to constitute the acts complained of under the various heads of claim.  That is so generally, but is particularly evident in relation to the PIDA claim, where it was also not possible to identify the protected disclosures.

 

(3) It was agreed that the full hearing should be listed for twenty days commencing on 12 April 2010.

 

(4) A further CMD was fixed for 22 January 2010. 

 

9.            There followed extensive inter partes correspondence.  I need not follow every twist and turn.  I must, however, identify the major strands. 

 

10.         First, the Appellant, using a different firm of solicitors (Charles Russell LLP), sought the production under the Data Protection Act 1998 of documents containing her personal information.  It is not clear, and the Respondents queried at the time, what this exercise was likely to achieve – beyond greater expense and complication - over and above the disclosure that would in any event be forthcoming in the tribunal proceedings.  Notwithstanding that objection, Pfizer did in fact provide some material on “a goodwill basis”.  Charles Russell wrote at great length both to SB and to Sidley Austin, the US lawyers of Pfizer Inc., Pfizer’s parent company, complaining that the documents produced were inadequate.  Proceedings were threatened in the High Court and also in the United States. 

 

11.         Secondly, on 25 August 2009 DAC wrote an eleven-page letter to SB.  The letter started by putting them on notice that the Appellant expected to see disclosure of her “work folders” relating to the work that she had done on Lyrica.  The letter then went on, under the heading “CMD – Further Particulars/PIDA”, to record DAC’s instructions that “the PIDA claim includes Dr. Fariba’s work on Lyrica” and that relevant documents in that regard had been “removed from her account … in highly suspicious circumstances”.  There followed two pages setting out in considerable detail and contentious terms various allegations to the effect that Pfizer had not complied properly with its regulatory obligations.  They include the statement:

 

“Dr. Fariba’s PIDA claim includes protected disclosures regarding the departmental management of your client’s Regulatory Affairs Department, so far as concerns aiding and condoning her discriminatory treatment, further to the efforts to support and conceal the conduct, as previously outlined.”

 

That is a little obscure, but it seems clear that DAC were alleging that the Appellant’s disclosures related not only to the Respondents’ conduct towards herself but also, directly or indirectly, to misconduct by Pfizer in the discharge of its regulatory obligations.  There follow six pages under the heading “CMD – Issues”, setting out in great detail a list of individual complaints, overlapping with but by no means wholly corresponding to those already pleaded.  The purpose of this part of the letter is unclear.  Generally, the right place for this kind of material is in the pleadings – and the Appellant had of course at the CMD promised “further details” in due course – or in the Appellant’s eventual witness statement.  The tone of the letter as a whole suggests a very close client involvement in the drafting.

 

12.         Thirdly, once the Respondents’ disclosure was received, DAC made extensive complaints about its alleged deficiencies.  In particular, they made a number of such allegations in a letter dated 9 November 2009, emphasising, rather unusually, that they did so on instructions.  One oddly-worded passage reads as follows:

 

 “Our instruction is that Pfizer has been reprimanded by the US authorities for fraud and crimination [sic] charges in the marketing of the product, on which the Claimant did work, which may explain the Respondents’ reluctance to disclose the Claimant’s personal data.  These inevitably cover discussions surrounding and relating to the product.  The reluctance in the integrity [sic] of the disclosed documents is also particularly relevant to European Regulatory Authorities, which could be alerted through the transparent disclosures, to cited inconsistencies in the European submissions for the licensing and regulation of the medicine in the European Union.  Our further instruction is that the European Medicines Agency, EMEA, has refused a license application for an extended indication for the product in April 2009, on these grounds.”

 

They also in a letter dated 16 November drew attention to the absence of the Lyrica work folders, which they alleged had been deliberately deleted.  On the basis of these alleged deficiencies, they said that the Appellant would be unable to provide her own disclosure, or the further details promised, within the time provided.  DAC also wrote to Sidley Austin, as lawyers to Pfizer Inc., raising queries based on the disclosure.

 

13.         Fourthly, SB made a request that the Appellant return the laptop computer with which she had been supplied by Pfizer on her employment and whose return had apparently been requested on several occasions.  DAC in due course replied, on instructions, that the Appellant was in New York and was unable to return it for the time being. 

 

14.         It was clear that a CMD was necessary in order to deal with the outstanding interlocutory issues which were accumulating.  It took place, by telephone, on 27 November 2009.  The Appellant was represented by Ms Alison Grant, the partner in DAC with responsibility for her case; the Respondents were represented by Ms Anya Proops of counsel.  In his Note of the directions made Judge Baron dealt with the outstanding issues as follows:

 

(1) As regards the Lyrica work folders, Pfizer’s position was that a proper search had been made for them but they had not been found, and that if the Appellant wanted a further search made it would need more detail of the documents said to be missing.  The Tribunal ordered that the Appellant “provide all information in her possession as to Lyrica folders such as the names of the folders, their contents, the date(s) of creation and the date(s) of the allege removal or deletion, and the computer storage path”; and that, armed with that information, Pfizer should conduct a further search. 

 

(2) As regards the other alleged defects in the Respondents’ disclosure, Ms Proops said that further enquiries would be made as regards eight alleged heads of “omission and inconsistency”, subject to further details being provided by DAC on two points. 

 

(3) The Appellant’s time for providing her own disclosure was extended to 2 December 2009.  It seems to have been understood, although this is not spelt out, that, in accordance with the timetable agreed on 3 August, the Appellant would then have a further 14 days for providing the “further details” promised on that occasion. 

 

(4) As regards the missing laptop, the Judge acknowledged that he had no power to order its return but he directed the Appellant on or before 2 December to provide copies of all disclosable documents which were on it (or a statement that there were none).  DAC were asked to provide a statement, on instructions, saying when it was expected that the Appellant would be returning to the UK. 

 

15.         Following the CMD SB served an “anticipatory request for further and better particulars” identifying particular points which the Respondents wished to see addressed.

 

16.         On 2 December 2009, i.e. less than a week after the CMD, DAC wrote to the Tribunal applying for an extension of a week for compliance with the disclosure order applying to the Appellant, on the basis that she was still out of the country.  Rather remarkably, DAC’s letter enclosed a personal letter addressed by the Appellant to the Judge.  This was 3½ pages long (single-spaced) and set out in intemperate terms her views both on various aspects of the merits of her claim and on what she said was the tactical and vexatious manner in which the Respondents were defending the case.  Among other things, the letter accuses Pfizer of withholding relevant documents because they would disclose regulatory malpractice.  The letter concludes with a request “that the Respondent is further challenged, via legal intervention, in the provision of all the evidence, as housed by the company”.  It is not clear what this means, and no such application appears in DAC’s letter.

 

17.         By letter dated 4 December 2009 the Judge reluctantly agreed to extend the deadlines in question.  But he added that he wished “strongly to emphasise that the Claimant must ensure that she actively pursues the proceedings and gives her solicitors full instructions so as to enable them also to make progress with the proceedings”.  He declined to comment on the Appellant’s personal letter save to say that any applications should be made through DAC.

 

18.         Disclosure was given by DAC on 9 December, though the covering letter appears to reserve the right to serve further documents in due course, when the Appellant returned to the UK.  But the documents supplied came without any index or list and included many documents already disclosed by the Respondents, rather than – as ordered – only additional documents.

 

19.         On 17 December 2009 DAC served draft Re-Amended Details of Claim purportedly in compliance with the obligation accepted on 3 August to supply further details of the claim.  The amendments were quite substantial, though I shall have to consider in due course to what extent they cured the defects in the earlier pleading.

 

20.         On 24 December 2009 SB:

 

(a)        served a Request for Further and Better Particulars/Further Information, settled by Ms Proops, arising out of the draft Re-Amended Details of Claim served on 17 December; and

 

(b)        wrote to the Tribunal complaining of failures by the Appellant to comply with the orders made at the CMD on 27 November.

 

The Tribunal was invited to fix a further CMD as a matter of urgency.

 

21.         Also on 24 December 2009, though apparently coincidentally, DAC wrote to the Tribunal applying for a stay of the proceedings on the basis that Pfizer had deliberately fabricated documents with a view to presenting her as incompetent and in order to “question the integrity of her character”.  The stay was said to be required so that the Appellant could bring High Court proceedings under the Data Protection Act which would “rectify” these “evident and deliberate falsifications”.  There was reference to the potential involvement of the Crown Prosecution Service.  DAC enclosed an unsigned copy of a letter from Charles Russell communicating an intention to initiate such proceedings and expressing the view that:

 

“… until such time that Dr Fariba’s employment records are fully disclosed and corrected, pursuant to the filing of a DPA action and an order from the High Court or otherwise, it must be considered to be a waste of time and resource for the Employment Tribunal to continue with uncorrected evidence”.

 

The application was plainly misconceived.  The letter does not explain why the alleged falsifications could not be equally, or more, appropriately investigated in the context of the tribunal proceedings themselves.  It continues:

 

“In support of any request for a stay of the Employment Case, our client has analysed the disclosures made to her pursuant to her section 7 DPA subject access request (as well as disclosures made by Pfizer pursuant to the Employment Case).  The analysis and factual background is set out at the Annex to this letter, and is included in order to support an application for a halt of the Employment Case proceedings, as they currently stand.”

 

The “analysis” there referred to is a curious document.  Although according to Charles Russell’s letter it is the work of the Appellant, and is consistent with the style of her earlier letter to Judge Baron, it is on Charles Russell paper and refers to her as “our client”.  Most of it is not in fact an analysis of breaches by Pfizer of its obligations under the 1998 Act but consists of a re-statement of her complaints against it, coupled with intimations of regulatory malpractice.  It is hard to see how it could support the application made.

 

22.         On the same date DAC wrote to both SB and Sidley Austin saying that they were instructed by the Appellant “to write to you in respect of your client’s interest in the Employment Tribunal proceedings and breach of the Data Protection Act 1998”; but the letter in fact contains no content from DAC itself but only serves to “forward and deliver … for you to pass to your client” a seven-page document entitled “Redraft of Claim”.  This is a document of uncertain purpose and authorship setting out the Appellant’s claim under various legal headings and with considerable discussion of legal principle.  It broadly corresponds to, but is different in format and detail from, the draft Re-Amended Details of Claim served by DAC only a week previously.  The service of such a document in such a way seems pointless and liable only to cause confusion.

 

23.         SB responded to those letters observing, in alia, that they provided:

 

“… further cogent evidence of the Claimant’s true motive in this case which appears to be to make unfounded and scandalous allegations against the Respondent and to seek to delay and ultimately derail the proceedings.  It appears that the Claimant has no intention of taking this case to trial.  The letter adds force to the request in our earlier letter today for an early case management discussion at which this issue as well as those we raised in our letter might conveniently be addressed.”

 

24.         On 30 December 2009 the Tribunal wrote to both parties fixing a CMD for 7 January 2010.  Judge Baron emphasised the need for the Appellant to attend in person.

 

25.         At 4.30 p.m. on 5 January 2010 DAC wrote to the Tribunal and to SB to say that they were no longer instructed by the Appellant.  They gave no reason, and I do not propose to speculate about what the reason might be.  An e-mail later that evening from the Appellant appeared to imply that Charles Russell had been instructed in DAC’s place to represent her in the proceedings; but that turned out not to be the case. 

 

26.         At 11.05 p.m. on 6 January 2010, the Appellant sent a two-page letter to the Tribunal.  Much of it rehearses, in hyperbolic terms, her earlier complaints about the conduct of the defence, accusing the Respondents of falsifying documents and SB of bullying and use of unlawful threats.  It includes an allegation that attempts that afternoon by SB to serve her with correspondence relating to the hearing constituted trespass and harassment.  It concludes:

 

“The Tribunal is respectfully notified that due to my lack of availability, or any advance notification that the Respondent was pushing for an earlier CMD than 14 January, as well as my lawyers being snowed in a the present time, due to adverse weather conditions and no transport, it is not physically or lawfully possible to attend an early CMD tomorrow, on 7 January 2010.  Having received extended documents and exchanges since the holiday break, the Tribunal is requested to uphold the pre-scheduled CMD for 14 January, as set out on the 3 August Tribunal Order, to allow myself and my lawyers to address the matters which are expected to be discussed at the forthcoming meeting.  I expect that the Respondent’s representatives and the Tribunal staff may be similarly prevented from attending.”

 

The reference to snow is to the fact that there had been a heavy snow-fall on the night of 5/6 January; but the reference to non-attendance by “my lawyers” is puzzling since DAC had come off the record.  I should also note that the same day the Appellant e-mailed directly to two solicitors in SB, threatening to call the police if they continued their “bullying tactics” and to report them to the Crown Prosecution Service and the Law Society if they engage in “dirty tricks campaigns”. 

 

27.         The CMD proceeded on 7 January.  The Respondents were presented by Ms Proops.  The Appellant did not attend and was not represented.  Following the hearing the Judge produced a long and careful Note of what had been decided.  For present purposes I need only record the following:

 

(1) Having noted that there were now no serious transport difficulties notwithstanding the snow two nights previously the Judge concluded that the Appellant had deliberately absented herself.

 

(2) He refused the application for a stay.  He pointed out that if there were allegations about falsification of documents they could be dealt with by the Tribunal itself.  He noted the observations of the Court of Appeal in Durant v Financial Services Authority [2003] EWCA Civ 1746 about the undesirability of the Data Protection Act being used as a means of obtaining disclosure in civil proceedings. 

 

(3) He ordered that within 14 days the Appellant supply “concise and specific” replies to both the “anticipatory request” (see para. 15 above) and the subsequent request served on 24 December (see para. 20).  He said, at paras. 15-16:

 

“15 It was the submission of Miss Proops that many of the allegations were vague, and that there had not been any attempt to link the factual allegations to the specific statutory provisions as required by the order of 3 August 2009.  I agree with her entirely.  It is critical to the proper consideration of all claims made to the Tribunal to ascertain what the allegations are, and what issues will have to be determined by the Tribunal.  It is particularly important in a substantial and complex case such as this that is done.  The Respondents need to know such matters well in advance of the hearing, and the Tribunal needs to know at the date of the hearing what is being asked to decide and under what statutory (or regulatory) provisions the various claims are being made.  Without proper detail a fair trial is not possible.

16 Miss Proops told the Tribunal that she was not seeking an order striking out the claim at present, nor least because the Claimant was not at the hearing.  She sought an order that the Claimant provide particulars in the form required, with an ‘unless’ condition attached so that if she failed to provide them then the claim would be struck out automatically.  I do not consider that it is appropriate to make such an order at present because it may well lead to satellite litigation as to whether there has been total compliance by the Claimant with the terms of the order.  However, it is appropriate to make a further order.”

 

(4) He declined to make any order in relation to the laptop.

 

(5) He ordered the Appellant within 14 days to remedy the defects in her disclosure noted at para. 18 above.

 

(6) He made an order for specific disclosure against the Appellant, as follows:

 

“In paragraph 89 of the re-amended details of claim, and in the letter to the Tribunal dated 6 January 2009, the Claimant made reference to audio recordings.  It is not apparent what those are, but as they have been mentioned by the Claimant in the details of claim it has to be assumed that they are relevant.  Therefore the Tribunal orders that within 14 days of the date of this order the Claimant do supply to the Respondent an audio copy of any recordings under her control made by her on her behalf of any meeting of, or discussions between, the Claimant and any employee of the First Respondent, or between employees of the First Respondent, together with a draft transcript of each such recording.  The Tribunal further orders that within 14 days after receipt of such recording(s) and transcript the Respondents’ solicitors notify the Claimant of their agreement or otherwise to the transcript(s) and, in the event of any disagreement, details of the passage(s) not agreed.  The parties are to work together and use reasonable endeavours to agree the transcript(s).”

 

(7) He recorded that the Appellant had not provided the further information promised at the previous CMD in order to enable the Respondents to try to find the Lyrica folders (see para. 14 (1) above) and he directed that unless that were done within 14 days they should be under no further obligation in that regard.

 

(8) He ordered the Appellant to produce within 14 days a Schedule of Remedies.

 

(9) He made various directions timetabling the steps required before the hearing on 12 April – including witness statements and agreement of a list of issues and bundle.

 

(10) He fixed a further CMD for 3 February 2010.

 

At para. 29 of the Note the Judge said this:

 

“Conduct of the parties.  I have noted the comments made by the Claimant in her letter of 6 January 2010 concerning the attitude and conduct of the Respondents and their solicitors.  I have also noted comments made by the solicitors acting for the Claimant in correspondence.  Miss Proops asked me to record that although she was not making any application at this stage, it was the view of the Respondents that the conduct of the litigation by the Claimant has been and is unreasonable and vexatious, and contrary to the overriding objective of the Tribunal, particularly to deal with matters expeditiously and to save expense.  She said that the Claimant was acting in a manner specifically designed to increase the Respondents costs.  I record those points as requested without making any comment on them or coming to any conclusion on them, as there was no application for me to determine.”

 

28.         On 14 January 2010 SB asked the Tribunal to fix a PHR on the same date as the listed CMD.  On 19 January they wrote to the Appellant notifying her that they wished to be in a position at that hearing to strike out her claims if she had not complied with the orders made on 7 January.  She was also warned that they reserved the right to seek an order for costs.  The request for a PHR on 3 February was declined by the Judge, on the basis that the requisite fourteen-day notice could not be given.

 

29.         On 20 January the Appellant sent an e-mail to the Tribunal complaining that she had been “deliberately excluded from the previous two Case Management Discussions” and asking it to investigate “the deliberate mismanagement of [her] lawsuit” by DAC and on that basis to rescind the orders made at the CMD on 7 January.  The allegations against DAC were unparticularised.  In a further e-mail of the following day the Appellant:

 

(a) gave some details of her complaints against DAC; these are not very clear and for present purposes I need not seek to analyse them in full, but I should note that they included an allegation that DAC were withholding documents from her;

 

(b) made allegations of misconduct again SB and Ms Proops – again, the allegations are opaque, but they seem to include collusion with DAC; and

 

(c) complained that the Judge’s Note of the CMD of 7 January “does not read as an impartial correspondence”.

 

It is clear from the e-mails that the Appellant had no intention of complying with the various orders made at the CMD by 21 January; and she did not do so. 

 

30.         Those e-mails gave rise to a flurry of correspondence involving DAC, SB and the Tribunal which I need not seek to summarise.  However, I should refer to an e-mail and a letter by way of illustrating the style of the Appellant’s correspondence:

 

(1) On 28 January she e-mailed the Tribunal as follows:

 

“I am writing as the litigant in person.

The statements set out in the correspondence dated 27 January from the Respondents’ UK representatives are not coherent, as previously, and the inclusion of my former solicitor in the discussions has been noted.  The correspondence has not elaborated on the payment plan for my former solicitor.

The Respondent further remains in breach of a series of Employment Tribunal Orders, primarily regarding the disclosure of evidence, as housed.  Previous correspondences and orders sought from the Tribunal indicate the Respondent’s intention of recovery and destruction of evidence of civil and criminal misconduct.  This is a contravention of UK and European law, pursuant to Public Information Disclosure Act.  The Tribunal is requested to investigate how the Claimant has come to be intentionally excluded from the previous two Case Management Discussions, and how such a desire on the part of the Respondent to recover and destroy evidence, irrelevant to the current employment proceedings, have come to be viewed as “order” from an Employment Tribunal.

Davis Arnold Cooper is no longer instructed by the Claimant, as advised, and the Claimant is not privy to the full dossier of documents material to the claim, despite written requests.

The Claimant has been subjected to harassment as a witness to civil and criminal misconduct by the Respondent.  The European Courts accept jurisdiction to adjucate on lawsuits relying on principles of European law, and in relation to the Claimant, this is pursuant to the Public Information Disclosure Act, which has afforded support and protection for the Claimant.  In confidence of a successful resolution to the Employment Case, the Claimant has additionally reserved her right to file further proceedings, as appropriate.

The Tribunal is requested to note that the resolution of re-engagement is not sought by the UK company, rather the parent company in the US, in good faith.  The Claimant was subjected to unprecedented racist and discriminatory conduct within the Regulatory division of the UK affiliate, and under no circumstances would wish a return to this environment.  Not withstanding the misconduct of the Respondent in relation to the medicinal product Lyrica, the Claimant has been privy to discriminatory conduct and unlawful dismissals of many ethnic minority colleagues, and has filed a lawsuit in principle.  The Claimant’s continued legal challenge is contingent to the support of the European Commission.

In addition to the Tribunal’s investigation regarding misconduct, Case 2302004/2009 is presently subject to review by the appropriate Regulatory Authorities, whose engagement has been sought following consultation with the Metropolitan police.”

 

(2) By a letter dated 31 January 2010 in which the Appellant repeated her application for a stay and also sought “an independent judiciary review” and the transfer of the case to “an impartial adjudicator, pursuant to evident repeated prejudice and bias against the Claimant”.  The letter is very lengthy and is difficult to follow in detail.  The gist is that SB, the Tribunal (and specifically Judge Baron) and DAC have over the past weeks between them acted with grave impropriety.  There are allegations of falsified and withheld documents, deliberate professional misconduct and the commission of criminal offences.

 

31. The CMD duly proceeded on 3 February 2010.  The Appellant appeared in person and the Respondents were again represented by Ms Proops.  The Appellant had declined to accept service of a bundle prepared by SB for the purpose of the hearing.  The discussion lasted from 10 a.m. to 5.30 p.m. and was very detailed.  Again, the Judge produced an admirable Note summarising what had been discussed and recording the directions which he had made.  I need not cover every point.  It is clear that he was prepared to park the question of whether the Appellant had any excuse for her absence on 7 January and to hear what she had to say on each of the questions covered in that hearing, together with the questions which had emerged since.  For present purposes I should note the following points:

 

(1) The Appellant asked the Judge whether he was the sole author of the Note of the CMD on 7 January.  This unusual request clearly reflects her belief that he was colluding with the Respondents.

 

(2) The Judge reviewed the Appellant’s complaints about the Respondents’ disclosure.  Four points were identified and a way forward in relation to each was prescribed.

 

(3) In relation to the laptop computer which the Appellant continued to retain, the Judge said this:

 

“The subject of the laptop owned by the First Respondent but retained by the Claimant is causing unnecessary difficulties.  The position taken by the Claimant is that she is retaining it because the sole remedy she is seeking is that of reinstatement or re-engagement.  I consider that to be a wholly unjustifiable reason.  If she were to be reinstated then no doubt the Claimant would be supplied with whatever technology she required to fulfil her role.”

 

He went on to deal with the confusion, for which the Appellant was responsible, about whether or not disclosable documents were held on the laptop.

 

(4) As regards the allegedly missing Lyrica work folders, it was made clear that the ball was in the Appellant’s court to give Pfizer the information necessary to conduct any further searches.

 

(5) The Judge refused the application for a stay made in the Appellant’s letter of 31 January.  He pointed out that the case had been listed for 12 April 2010 for almost six months and that what was now necessary was for the parties to get on with preparing for that hearing.  He warned the Appellant that she ought not to make allegations of misconduct against solicitors, counsel or member of the judiciary without sufficient evidence.

 

(6) The Judge extended the deadline for the Appellant to respond to the Respondents’ request for further particulars – see para. 27 (3) above – to 26 February 2010.  He declined to make the order in “unless” terms for the same reasons as he had given at the previous CMD, but he said this:

 

“However I wish to make two points abundantly clear to the Claimant.  The first is that she must set out the legal basis for her claims so that the Tribunal and the Respondents know what the issues are.  In my judgment that has not yet been done.  The Claimant is yet again reminded of the proximity of the Hearing listed for 12 April 2010.  The second point is that the Tribunal does have the power to strike out the claim without first having made an ‘unless’ order.  The Respondents will be applying to have the claim struck out on various grounds as set out below.”

 

(7) In connection with the outstanding Schedule of Remedies the Appellant is noted as having “specifically stated to the Tribunal after some discussion that she was not seeking any remedy other than an order for reinstatement or re-engagement”. 

 

(8) An order was made for a PHR on 10 March 2010 to consider applications by the Respondents to strike out the Appellant’s claim and for the making of a deposit order.   

 

32. On 9 February 2010 the Appellant lodged with this Tribunal an appeal against the orders made at the CMD on 7 January.  The correct papers were not included and were not supplied until 1 March, by which time the appeal was out of time.  No application for an extension was made, and the appeal accordingly did not proceed.  Among the papers lodged with the EAT was a document headed “Privileged and Confidential – EAT – witness statement concerning the conduct of the Appellant’s case at the ET”.  This consists mostly of complaints against DAC, but it includes the statement that “it is evident that Ms Gotzias, the caseworker, and the Judge are on the Respondent’s payroll”; and various specific complaints are made about Judge Baron’s conduct.  (Ms Gotzias was the clerk at the London South Tribunal handling the correspondence with the Appellant.)  I was told by Mr Greatorex that it was never the Appellant’s intention that that document should be seen by the Employment Judge, and that it was included in the papers lodged with the Tribunal only by mistake.  That may be so; but I was told by Mr Pitt-Payne on instructions, and it was not controverted, that the Appellant said nothing to that effect to the Judge, and it is not supported by any witness statement.  The question is not, however, of central importance since its significance is in what it discloses about the Appellant’s attitude and she had in any event said similar things elsewhere. 

 

33. Between the CMD of 7 February 2010 and the PHR of 10 March there was a good deal of further correspondence, of which, again, I need not attempt a comprehensive summary.  I should note the following points:

 

(1) On 12 February the Appellant, who had previously indicated that any documents could be served on her c/o Charles Russell, stipulated that since she was now abroad any service of documents could only take place by prior arrangement with herself.

 

(2) SB wrote to the Tribunal on 18 February explaining what steps had been taken in relation to the allegedly outstanding disclosure on the Respondents’ part, including in relation to the Lyrica work folders.  In respect of the latter, they recorded that the Appellant had not supplied the information required for the purpose of any further searches, though they gave the results of such enquires as Pfizer had been able to make, the effect of which was to cast serious doubt on her account that any files had gone missing. 

 

(3) On 20 February the Appellant e-mailed the Tribunal to object to the Judge’s Note of the CMD of 3 February.  The nature of the objection is not wholly clear but she alleges inter alia that matters are recorded which did not occur. 

 

(4) There was correspondence between the Appellant, SB and the Tribunal about whether she had been given proper notice of the PHR fixed in the Note of the CMD of 3 February and of the Respondents’ intended strike-out application.  In the course of this correspondence the Appellant asked the Tribunal whether SB could be offered “coaching in the comprehension of the English language”: the request may have been intended as humorous, but it is indicative of the offensive tone of her letters and e-mails. 

 

(5) There was correspondence about whether Ms Grant of DAC should be required to attend the PHR in order to deal with the Appellant’s allegations that some of the problems that had arisen were as a result of DAC’s conduct.  Such an order was initially made though it was eventually rescinded. 

 

THE HEARING OF 10 MARCH 2010 AND THE JUDGE’S REASONS

 

34. For the purpose of the PHR on 10 March 2010 Ms Proops prepared a full skeleton argument.  SB e-mailed this to the Appellant on 4 March, together with a chronology and a request for instructions as to where the bundle should be served.

 

35. Ms Proops’ skeleton made it clear that the Respondents were seeking an order that the Appellant’s claim be struck out on the basis:

 

(a)        that the manner in which the proceedings had been conducted was “scandalous and/or unreasonable and/or vexatious” – see rule 18 (7) (c) of the Employment Tribunal Rules of Procedure; and/or

 

(b)        that the Appellant had failed to comply with orders of the Tribunal – see rule 18 (7) (e).

 

The relevant provisions of rule 18 read as follows:

 

“(5)     Notwithstanding the preliminary or interim nature of a pre-hearing review, at a pre-hearing review the Employment Judge may give judgment on any preliminary issue of substance relating to the proceedings. Judgments or orders made at a pre-hearing review may result in the proceedings being struck out or dismissed or otherwise determined with the result that a Hearing is no longer necessary in those proceedings.

(6)     Before a judgment or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The judgments or orders listed in paragraph (7) must be made at a pre-hearing review or a Hearing if one of the parties has so requested. If no such request has been made such judgments or orders may be made in the absence of the parties.

(7)     Subject to paragraph (6), an Employment Judge or tribunal may make a judgment or order:—

(a) …

(b) …

(c)     striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) …

(e) striking out a claim or response (or part of one) for non-compliance with an order or practice direction;

(f) striking out a claim where the Employment Judge or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings …”

 

36. By way of fallback, Ms Proops sought a deposit order under rule 20; but I am not concerned with that application in this appeal.  She also made clear that if the application under rule 18 (7) were successful the Respondents would seek an order for costs under rule 40. 

 

37. Ms Proops’ skeleton argument made submissions as to the relevant law and identified the orders alleged to have been breached for the purpose of head (e) and the conduct relied on for the purposes of head (c).  So far as the latter is concerned, Ms Proops’ submissions appear at paras. 28-30 of the skeleton.  Her overall proposition was that the Appellant “has used this litigation as a platform for unjustly vilifying, attacking and threatening the Respondents and their legal advisers”.  At para. 28 she gives twelve examples of “this unreasonable and scandalous conduct”.  Most of these refer to correspondence which I have referred to above.  The examples in fact go beyond conduct towards the Respondents and their advisers and refer also to the allegations made against the Tribunal.  At para. 29 Ms Proops points out that this conduct continued after the warning on 7 February (see para. 31 (5) above).  At para. 30 she gives a further nine instances of “unreasonable conduct”, which appear to be intended as secondary or supportive. 

 

38. The PHR duly proceeded on 10 March.  The Appellant appeared in person.  The Respondents were represented by Ms Proops.  At the beginning of the hearing the Appellant raised a number of matters, including her previous request for an independent investigation of the history of the case, her appeal to this Tribunal (which she wrongly understood to be still pending) and the associated application for a stay, and the existence of High Court proceedings which Charles Russell had recently issued on her behalf.  She asked for the Judge to recuse himself, which he declined to do.  After those matters had been dealt with the hearing proceeded in the usual way.  The Judge reserved his decision overnight.  The Judgment was promulgated on 11 March and the Reasons sent to the parties on 1 April 2010.

 

39. The Reasons run to some 26 pages.  They are careful, thorough and clearly structured.  The procedural history is summarised at paras. 1-34.  The preliminary matters raised at the hearing are dealt with at paras. 35-35.  The Judge summarises the parties’ submissions at paras. 57-89.  I should note in particular para. 60, in which he quotes part of para. 27 of the judgment of Sedley LJ in Bennett v London Borough of Southwark [2002] ICR 881, which reads as follows:

 

“The trinity of epithets 'scandalous, frivolous or vexatious' has a very long history which has not been examined in this appeal, but I am confident that the relevant meaning is not the colloquial one. Without seeking to be prescriptive, the word 'scandalous' in its present context seems to me to embrace two somewhat narrower meanings: one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process. Each meaning has lexicographical and legal support, the first in the principal OED definitions of 'scandal' and 'scandalous', which have to do with harm and discredit; the second in 'scandalising the court', a historical form of contempt; and both in Daniel's entry in Byrne's Dictionary of English Law cited in his judgment by Ward LJ. These considerations are not of course exhaustive, but they are enough to make it plain that 'scandalous' in the rule is not a synonym for 'shocking'. It is a word, like its sibling 'frivolous', with unfortunate colloquial overtones which distract from its legal purpose: see the remarks of Lord Bingham CJ in R v Mildenhall Magistrates Court ex parte Forest Heath DC (1997) 161 JP 401 (The Times, 16 May 1997).”

 

At paras. 90-92 he refers to the decision of the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] IRLR 630, which he describes as the principal authority on the relevant principles, and sets out certain passages from the judgment of Sedley LJ.  The section headed “Discussion and Conclusion” is at paras. 93-131.  I need to summarise this section rather more fully.  I do so in the following paragraphs.

 

40. Preliminaries.  At para. 93 the Judge correctly reminds himself of the “Draconian” nature of a striking-out order.  He notes at para. 94 that the two bases of the Respondents’ application overlapped, and he proceeds at para. 95 to make a fundamental point common to both, as follows:

 

“There is a fundamental aspect to this case which is relevant in connection with various elements of my deliberations.  The point is simply this.  The case is not ready for trial, and in my judgment Dr Fariba is not making any effort to get ready for hearing, nor has she shown any indication that she will make such effort.” 

 

Mr Pitt-Payne asked me to take particular note of that finding. 

 

41. Non-compliance with orders.  This basis for the Respondents’ application – i.e. head (e) – is analysed in three parts, as follows:

 

(1) At paras. 96-98 the Judge identifies the claims being made, noting – in relation to the whistleblower claim (para. 96) – the importance of a claimant identifying how his or her claim “is constructed in accordance with [the relevant statutory provisions]”, and likewise – in relation to the claim of disability discrimination (both “primary” and by way of victimisation) – the need to specify “the details of the factual allegations and how they relate to the various specific provisions of the 1995 Act”.  At paras. 99-101 the Judge refers to the history of the Respondents’ attempt to have the claim particularised in order to obtain those essential details.  He says, as was the case, that the Appellant had not provided the particulars ordered at the CMD on 7 January and again (with an extension) on 3 February (see paras. 27 (8) and 31 (6) above).  At para. 100 he says this:

 

“The Claimant has not at any time sought to comply with those further orders.  Even at this hearing Dr Fariba did not make any apology or seek an extension of time for compliance, even though notice had been clearly given by the Respondents that one of the grounds for the application to strike out was such non-compliance.  No reason or excuse for non-compliance has been provided, save possibly that she considered them to be discriminatory in themselves.  Indeed, Dr Fariba said that she had complied with all orders timeously, when plainly that is not the case.”

 

He continues, at para. 101:

 

“I conclude that the Claimant is in deliberate breach of the requirements to supply the information comprising the basic building blocks of her claim.  Neither the Respondents nor the Tribunal knows what Dr Fariba is alleging in sufficient detail.  I considered both on 3 February and at this hearing making an order that unless the particulars were provided by a certain date then the claim would automatically be struck out and decided that it was not appropriate.  The first reason is as already mentioned, that there is a real danger of satellite litigation being created, which means successive hearings being listed.  That is in my judgment not a proportionate way of dealing with the matter.  The second reason is that Dr Fariba had not given any indication of her willingness to comply with the orders.  There is therefore no point in making an ‘unless’ order.”

 

(2) At para. 102 the Judge deals with the Appellant’s failure to comply with the orders made on 7 January and 3 February.  He describes these as “of secondary but not insignificant importance”.  He notes that the Appellant has not simply failed to comply with the orders but has failed to give any reason to justify her failure, “nor has she given any indication of her willingness to comply in the future”.

 

(3) At paras. 103-105 the Judge deals with the issue of the Lyrica work folders.  He refers to his orders of 27 November 2009 and 7 January 2010 (paras. 14 (1) and 27 (7) above) and notes, again, that not only have they not been complied with but there has been neither any excuse or reason offered for the breach nor any indication of willingness to comply in the future.

 

42. The Appellant’s conduct.  This basis for the application – i.e. head (c) – is dealt with as follows:

 

(1) At paras. 106-107 the Judge says:

 

“106. I now turn to the general conduct of the Claimant.  This is not an easy matter adequately to summarise because it really is necessary to consider all the correspondence which she has written, as well as correspondence from DAC, and also the way in which Dr Fariba has dealt with issues at successive hearings.  The volume of correspondence from Dr Fariba is very substantial.  Dr Fariba is clearly intelligent and articulate.

107. Dr Fariba said at this hearing that the Tribunal was being distracted from dealing with her employment claim.  I entirely agree with that statement, but in my judgment it is Dr Fariba who has not been focussing upon the specific legal claims that she wishes to have the Tribunal determine, but has consistently sought to divert attention from them by raising peripheral issues and making extensive and excessive allegations.”

 

(2) At para. 108 the Judge refers to the criticisms of the Appellant’s conduct made in Ms Proops’s skeleton argument and says that he accepts them in their entirety.  The reference is, I think, mainly to the twelve points made in para. 28 of the skeleton (see para. 37 above), which he had earlier summarised very fully (see paras. 69-80 of the Reasons) rather than the nine further points made at para. 30 (to which he alludes only briefly and compendiously: see para. 82).  He notes also that Ms Proops had submitted that the recusal application was a further example of unreasonable conduct: he does not explicitly accept that submission, though it may be inferred that he certainly did not intend to reject it. 

 

(3) At para. 109 the Judge reminds himself that the application is not made on the basis that the claim itself – as opposed to the conduct of it – was vexatious or that it had no reasonable prospect of success, noting that such an application would fall under head (b) of rule 18 (7).

 

(4) At para. 110 the Judge states his conclusion (already in fact implicit in his acceptance of the submissions in Ms Proops’ skeleton argument) that “the manner in which Dr Fariba has conducted the proceedings has been scandalous and unreasonable, and in at least one respect vexatious”.  The respect in which her conduct had been, specifically, vexatious is explained in the remainder of the paragraph.  The Judge says that it was vexatious for the Appellant to continue the proceedings solely with a view to reinstatement, as she had claimed was her position when taxed with why she was retaining the laptop (see para. 31 (3) above; also sub-para. (7)), since she cannot seriously have believed that reinstatement was practicable in the light of the allegations made against Pfizer and its officers; and in any event the claims against the individual Respondents were on that basis futile. 

 

(5) At para. 111 he notes that the conduct of the Appellant in relation to whether there were disclosable documents on the retained laptop had been unreasonable.

 

(6) At paras. 112-117 the Judge further expands on his view that the Appellant’s conduct falls within the terms of rule 18 (7) (c).  I need not reproduce these paragraphs in full.  The essential points that he makes are:

(i)              that the Appellant had indeed

 

“… used these proceedings for the purpose set out by Sedley LJ in Bennett as set out above [see para. 39 above].  She had vilified almost everyone involved in these proceedings, her own solicitors, solicitors and counsel for the Respondents and also gratuitously insulted the Tribunal.  Her attitude as exemplified in the particular correspondence mentioned above has concentrated upon such attacks, and not upon pursuing her claims to a hearing …”

 

(ii)            that, despite her protestations to the contrary, the intention and effect of the Appellant’s conduct had been to prevent the effective resolution of her claims (para. 113);

 

(iii)          that the making of accusations against all concerned was “a wholly unreasonable way to conduct litigation, especially when at the same time failing to comply with the very orders which would ensure that the litigation could progress”, though he accepted that “the judiciary should have broad backs and the Tribunal should be open to the difficult as well as the compliant litigant” (para. 114);

 

(iv)          that the threats of criminal proceedings and the extravagant allegations of collusion and misconduct against the lawyers and likewise the allegations against the Judge and Tribunal staff, were wholly unreasonable (paras. 116-117).

 

43. Discretion.  The Judge directed himself at para. 118 that, having found that heads (c) and (e) were engaged (my word, not his), he had to decide whether as a matter of discretion the Appellant’s claims should be struck out.  He acknowledged at para. 119 that such orders would be rare.  At paras. 120-123 he concludes:

 

“120. As already stated I am satisfied that Dr Fariba has been in persistent and contumelious breach of orders.  That has meant that the trial date of 12 April 2010 set in August 2009 has had to be vacated.  If the matter were to be relisted then the new date would be in December 2010 or in 2011.  I have taken that delay into account when considering fairness to all parties, noting in particular that there are three individual Respondents to these proceedings.  They are entitled to have the serious allegations against them determined without any unnecessary delay.  Such delay is prejudicial to them by definition.

121. I have concluded that a fair trial is not possible.  Dr Fariba has been given more than ample opportunity to plead her case properly and she has still failed to do so.  It should have been pleaded properly at the time when the claim was issued in April 2009 or shortly thereafter.  I see no reason why Dr Fariba could not then have set out the alleged protected disclosures, the consequent detriments, the acts (or omissions) of alleged race and/or disability discrimination, together with details of the claims of victimisation.  Now nearly one year later the claim has not progressed to any material extent, and there is no indication from Dr Fariba of any willingness to progress it.  Indeed, rather to the contrary she has been seeking an ‘independent judiciary review’.  No fair trial can be held when the claims are so unclear.

122. Is there any alternative?  As I have already stated, I have considered on two occasions the making of an ‘unless’ order but decided that it was not appropriate.  Successive case management order have been made without compliance, even in circumstances where Dr Fariba knew that the Respondents were seeking the making of a strike out order, and the bases for such application.  In my judgment, enough is enough.  There is in my view nothing more which this Tribunal can do to ensure that the Claimant puts the case into a state which is ready for hearing.  Dr Fariba regularly states that she is now a litigant in person, which is of course the case in connection with these proceedings (but not the High Court proceedings) but that does not prevent her from dealing with the matter properly.  I consider that I have gone out of my way to explain matters to Dr Fariba at successive hearings to make sure that she disadvantaged as little as possible by not being an employment lawyer, but to no avail.  Dr Fariba appears to be intent on using this litigation for inappropriate reasons.  There are plenty of other cases waiting to be tried and Dr Fariba should not be allowed to abuse the process of the Tribunal and cause delays to others.

123. For the above reasons I concluded that the claim should be struck out.”

 

(It is common ground that para. 120 is not quite correctly expressed: what the Judge plainly meant was that if the claims were not struck out the hearing fixed for 12 April would have to be adjourned.)

 

44. Costs.  At para. 124 the Judge sets out the terms of rules 40-41 of the Rules, which are as follows:

 

“40. When a costs or expenses order may be made

(1)     …

(2)     A tribunal or Employment Judge shall consider making a costs order against a paying party where, in the opinion of the tribunal or Employment Judge (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or Employment Judge may make a costs order against the paying party if it or he considers it appropriate to do so.

(3)     The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.

(4)     A tribunal or Employment Judge may make a costs order against a party who has not complied with an order or practice direction.

 

41. The amount of a costs or expenses order

(1)     The amount of a costs order against the paying party shall be determined in any of the following ways—

(a)     the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;

(b)     the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed;

(c)     the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined by way of detailed assessment in a County Court in accordance with the Civil Procedure Rules 1998 or, in Scotland, as taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order.

(2)     The tribunal or Employment Judge may have regard to the paying party's ability to pay when considering whether it or he shall make a costs order or how much that order should be.

(3)     For the avoidance of doubt, the amount of a costs order made under paragraphs (1)(b) or (c) may exceed £10,000.”

 

At paras. 125-126 he summarises the parties’ submissions.  At para. 127 he notes that, having found that the Appellant had acted vexatiously and unreasonably, he was obliged by rule 40 (2) to consider whether to make a costs order, though he notes that the making of such an order is exceptional.  He continues, at paras. 128-131:

 

“128 There are competing factors at play.  People who have legitimate (or arguable) complaints should not be put off making claims to this Tribunal by the fear of having a costs award made.  On the other hand, a claimant in particular should not be allowed to use the Tribunal system to cause a respondent to incur significant costs (or to anticipate having to incur such costs) by bringing unmeritorious claims, or otherwise misusing the Tribunal system.

129 As is apparent from what is set out above, it is my conclusion that Dr Fariba has been using these proceedings in an attempt to obtain reinstatement in her employment, but rather than bringing the case to a hearing at which the Tribunal would have the power to make such an order if she were to be successful in her unfair dismissal claim, she has signally failed to do that, and has incurred costs for the Respondents in the process.

 130 In those circumstances in my judgment the making of an order for costs is appropriate, and further that such costs should be assessed by a costs judge in the County Court taking into account the numbers of hearings that have been involved, the extensive correspondence, and the consequent costs incurred by the Respondents.  Dr Fariba will no doubt have the opportunity to make representations to the costs judge about the amount of costs incurred by the Respondents.  I have no doubt that the amount will be in excess of the Tribunal’s maximum jurisdiction of £10,000 in this respect.

131 I have considered whether there ought to be any time or other limitation on the costs to be awarded.  I have decided that there ought not to be.  While the commencement of the proceedings and the attitude taken by Miss Banton at the first CMD were both perfectly proper it is my conclusion that throughout the Claimant has been using these proceedings other than for obtaining a judicial decision under the various heads of jurisdiction which she sought to engage.  For that reason the costs order covers the whole costs of the proceedings as assessed.”

 

THE APPEAL AGAINST THE STRIKING-OUT

 

45. Both in the Amended Notice of Appeal which he pleaded for the purpose of the rule 3 (10) hearing and in his oral submissions Mr Greatorex made a number of preliminary points preparatory to his examination of the Judge’s reasoning.  I will consider these briefly.

 

46. The first, which Mr Greatorex particularly emphasised in his oral submissions, is that the whole face of the litigation changed when, at a crucial moment and at very short notice, DAC came off the record.  Up to that point, he submitted, the case had been proceeding unexceptionally; but at that point “the wheels came off”.  He accepted that much of the Appellant’s conduct thereafter, including the tone of her correspondence, was reprehensible; but he submitted that allowances should be made for her position as a party represented by City solicitors in a complex case who quite unexpectedly found herself acting in person.  I accept this up to a point, but only up to a point.  I cannot know unless privilege is waived what led to the Appellant and DAC parting company, and I can make no judgment of the rights and wrongs of the matter.  Thus, while I can and should acknowledge the difficulty of the position in which the Appellant found herself, I certainly cannot positively proceed on the basis that she was the innocent victim of circumstances beyond her control.  More importantly, however, I cannot accept that all was proceeding smoothly prior to DAC’s withdrawal.  It will be sufficiently clear from my summary of the procedural history not only that the conduct of the claim prior to 5 January 2010 was in some respects unusual and indeed unsatisfactory but that the problem areas were at least to a considerable extent attributable to the Appellant personally.  For example, it was she who chose to pursue two lines of attack on the Respondents, in the Tribunal and under the Data Protection Act, using different solicitors; the unusual features of DAC’s correspondence (see, e.g. paras. 16 and 21 above) are avowedly due to the Appellant’s input; and it was she who unjustifiably refused to return her laptop.  I cannot therefore regard 5 January 2010 as a watershed marking a clear divide between a period when the claim was being pursued reasonably and one where it was being pursued unreasonably.

 

47. Secondly, Mr Greatorex submitted that many of the difficulties which led eventually to the strike-out decision originated in the Judge’s decision to proceed with the hearing on 7 January 2010 and subsequently to treat the Appellant as having deliberately absented herself.  I do not accept either point.  The weather plainly did not constitute a sufficient ground for postponing the hearing: the snowfall had been over 24 hours previously, and there were no transport difficulties.  The Judge was fully entitled to conclude on the evidence, which included the terms of her own letter of the previous evening, that the real reason why the Appellant had not attended was not any physical impossibility on the morning of 7 January.  As to the withdrawal of DAC, that did not entitle the Appellant to an adjournment.  The imminence of the April hearing meant that it was important to keep a grip on progress; and that need was indeed only reinforced by DAC’s withdrawal.  Of course if the Appellant had appeared and had explained the difficulty in which she found herself, some adjustments might have been necessary; but she did not.  The real point, however, is that the Judge did not penalise the Appellant for her non-attendance.  On the contrary, he was prepared at the CMD on 3 February to revisit each of the significant decisions made on 7 January and to extend the Appellant’s time for compliance.  In the Amended Notice of Appeal Mr Greatorex criticised the Judge for not on the later occasion enquiring into the reasons for the Appellant’s non-attendance; but that would only be a fair criticism if he had held it against her. 

 

48. Thirdly, Mr Greatorex criticised the Tribunal for refusing to make unless orders on 7 January and, more particularly, 3 February, so that the Appellant knew the consequences of non-compliance.  I do not accept that criticism.  There were good reasons for not making an order in conventional “unless” form, and the Judge made the position quite clear in the Note of the CMD of 3 February: see para. 31 (6) above.

 

49. I turn to Mr Greatorex’s challenge to the Judge’s core reasoning, as pleaded at para. 11 (read with para. 15) of the Amended Notice of Appeal and further developed orally.  He said that the Judge’s decision was based on two points – (a) that the claim was not properly particularised; and (b) that the Appellant “had been using the proceedings otherwise than for the purpose of obtaining a judicial decision” (referring to paras. 112 and 131 of the Reasons).  He proceeded to attempt to show, as to (a), that the claims were indeed properly particularised; and, as to (b), that no such conclusion was justified and that in truth the Appellant’s claim was being struck out merely because she was a difficult litigant.

 

50. I should start by saying that I do not fully accept Mr Greatorex’s characterisation of the Judge’s reasoning.  As I have attempted to show above, he followed a systematic approach – first considering whether either or both of the conditions for a strike-out relied on (that is, heads (c) and (e) under rule 18(7)) were established; and, secondly, considering whether as a matter of discretion the claims should indeed be struck out.  There can be no real doubt that the conditions for a strike-out were met.  None of the orders made against the Appellant on 7 January 2010, and confirmed on 3 February, had been complied with; so head (e) unquestionably applied, and it is not strictly necessary to decide whether head (c) applied also.  However, in my view it is plain that, even if one might quarrel with details of the Judge’s reasoning, the Appellant’s conduct since January 2010 deserves both the epithets “scandalous” (as explained in Bennett) and “unreasonable”.  The real question is whether it was nevertheless a proper exercise of discretion to strike the claims out: as the case-law emphasises, and as the Judge clearly acknowledged, it is not enough simply to show that a party is in breach of tribunal orders or has behaved unreasonably.  As to that, Mr Greatorex is right to say that the Judge attached weight to what he regarded as the inadequate particularisation of the claim and what he described as the way the Appellant was “using” the litigation.  But it is necessary to understand why he thought those points were important.  He was not concerned so much with inadequate particularisation for its own sake.  Nor did he regard this as an “abuse” case in the narrow sense of a claimant calculatedly bringing proceedings for an improper purpose.  Rather, he regarded those points as demonstrating that the Appellant was unable or unwilling to take the steps necessary to get her claim to trial.  That was the fundamental point which he made in para. 95 of his Reasons, at the start of his discussion (see para. 40 above); and he returned to it at paras. 100, 101, 102 and 105 (see para. 41 (1)-(3) above), where he emphasises that the Appellant has given no indication of any intention or willingness to comply with the various orders there made.  This, likewise, is the point to which he returns at para. 121, in his conclusions, where he points out that the Appellant is not seeking to progress the case but instead to obtain “an independent judiciary review”.  This is not, therefore, a case of the (not uncommon) kind where a litigant in person fails to meet deadlines and/or behaves unreasonably or offensively but is nevertheless doing his or her misguided best to comply with the directions set by the tribunal in order to get to trial.  Instead, the scatter of allegations of misconduct, the applications for a stay, the pursuit of other proceedings, the threats of resort to criminal or regulatory sanctions, clearly indicated that the Appellant’s focus was entirely elsewhere and that if the case remained live she would, if I may use my own language, continue to thrash around indefinitely.  That is why, and the sense in which, the Judge concluded that a fair trial was impossible.  He was very well placed to make that assessment, having not only lived with the procedural history over several months but having had the Appellant before him over two long hearings.

 

51. On that basis, Mr Greatorex’s challenge to the Judge’s finding that the Appellant’s claims were inadequately particularised is not quite so central as it might appear.  Even if, as he submitted, the defects in the draft Re-Amended Details of Claim were not of central importance, what really mattered was the Appellant’s refusal to engage with the issue at all.  I will, however, briefly state my views on the finding.  The Judge’s essential criticism is that the Appellant had not set out “the alleged protected disclosures, the consequent detriments, the acts (or omissions) of alleged race and/or disability discrimination, together with details of the claims of victimisation” (see para. 121).  In one sense, this is wrong.  If one reads carefully though the proposed Re-Amended Details of Claim one can find the necessary factual averments to support each of the heads of claim referred to at para. 6 above, except, as Mr Greatorex was constrained to accept, a claim of victimisation.  In some cases the allegations may be, to put it no higher, rather thin; but Mr Greatorex, candidly accepting that that was so, reminded me that this was not a case where the Judge had purported to strike the claims out because they were hopeless.  But I do not believe that the Judge meant that a formal cause of action could not be teased out of the pleading.  Rather his concern was, in line with the point made (and accepted) from the first CMD onwards, that the Amended Details of Claim were an essentially narrative rather than an analytical pleading: there was no reference to the statutes and no clear indication of what acts or omissions were being said to be unlawful or on what basis.  Such an analysis is, as this Tribunal and the Court of Appeal have repeatedly emphasised, of fundamental importance; and in the whistleblower claims there is the additional need to identify the protected acts.  The importance is all the greater in a case like the present, where the claimant has made wide-ranging allegations in correspondence: it is essential that the pleading pin down what is, and what is not, being pursued in the claim itself.  This structural deficiency in the Amended Details of Claim was not addressed in the proposed Re-Amended Details.  Whether this failure would by itself have been enough to render the case untriable is debatable: in some cases a tribunal may itself have to do the work to pick out the triable issues from a home-made pleading (though it ought to be rare indeed for that to be necessary in the case of a lawyer-drafted pleading).  But its significance in the present case goes wider than that, for the reasons I have given above.  I should add, for completeness, that the Re-Amended Details of Claim were defective in many other ways: they were frequently vague, confused or unspecific.  The Respondents were fully entitled to raise, in the particular circumstances of this case, a detailed old-fashioned Request for Particulars; and the Judge was fully entitled to direct that it be answered.  But it is not suggested that the failure to supply the multifarious missing details sought was itself sufficient to justify a striking-out.

 

52. As for the Appellant’s conduct, Mr Greatorex challenged the Judge’s finding that she was “using” the proceedings for an improper purpose.  She plainly wanted to achieve a judicial decision in her favour, and the fact that she had, like many litigants in person, expressed herself offensively about the other parties and the Tribunal was not inconsistent with that: this was not a case where the only purpose of the litigation was to give her a privileged platform for vilification.  Her statement that she was only interested in reinstatement – in fact, as Mr Greatorex clarified, re-engagement – might be unrealistic, but it did not render the proceedings an abuse: if she had been treated unlawfully she was entitled to a finding to that effect, whatever the remedy.  But this does not seem to me to address the heart of the Judge’s reasoning.  The Appellant’s conduct was important, first, because it meant that one of the conditions for a strike-out was satisfied; and, secondly, because it justified the conclusion that, however much the Appellant might say she wanted a judicial decision (though not in fact, it appeared, from the tribunal actually seized of the case), she was not going to take the steps necessary in order to allow a fair determination of her case.  As noted above (para. 42 (6) (iii)), the Judge expressly acknowledged that the mere fact that the Appellant had made offensive allegations against himself was not a reason for striking out her claims.

 

53. In connection with the Appellant’s conduct, Mr Greatorex made the point that some of the orders of which she was in breach had in fact been made for her benefit and that the breaches could not prejudice a fair trial.  In particular, her non-compliance with the orders that she give details that would enable the allegedly missing Lyrica folders to be discovered only meant that she would not be able to have those documents (assuming them to exist) produced.  That is true as far as it goes; but, again, it does not undermine the Judge’s reasoning.

 

54. I accordingly dismiss the appeal against the striking-out order.

 

THE COSTS APPEAL

 

55. I have recently become aware that the Court of Appeal is due shortly to deliver judgment in Barnsley Metropolitan Borough Council v Yerrakalva, an appeal against a decision of mine in this Tribunal (UKEAT/0231/10).  This may give authoritative guidance on the correct approach to the issue of costs in a case of misconduct by one of the parties; and it is, I think, in everyone’s interests that I defer giving judgment on that aspect until I have had the opportunity to see what the Court says.  I have not, however, thought it right to defer my decision on the strike-out aspect, in view of the delay to date, which I regret (and which partly reflects the amount of detail which it was necessary to digest but is principally the result of the pressure of other cases in this Tribunal).