Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1845/16

 

CLAIMANT: Chris Porter

 

 

RESPONDENT: British Telecommunications Plc

 

 

DECISION ON A PRE HEARING REVIEW

The claimant's claim which contained a complaint of unfair dismissal by the respondent is struck out on the ground that the claimant has failed to actively pursue it.

 

Constitution of Tribunal:

President (sitting alone): Miss E McBride CBE

 

Appearances:

The claimant did not attend and was not represented.

The respondent was represented by Mrs L McManus, Solicitor of Napier & Sons Solicitors.

 

The Issues

 

1. The issues to be determined at the Pre Hearing Review were:

 

(i) whether the claimant has failed to comply with the Order for Discovery made by the tribunal at the Case Management Discussion on 24 October 2016;

 

(ii) if so, whether the claimant's claim should be struck out on that ground;

 

(iii) whether the claimant has failed to actively pursue his claim;

 

(iv) if so, whether the claimant's claim should be struck out on that ground;

 

(v) if not, whether the claimant's contentions in relation to his complaint of unfair dismissal have little reasonable prospect of success and, if so, whether the claimant should be ordered to pay a deposit not exceeding £500 as a condition of being permitted to continue to take part in these proceedings and whether he should receive a costs warning.

 

2. On 13 August 2016 the claimant presented a claim to the industrial tribunal which contained a complaint of unfair dismissal by the respondent and sought an order for re-engagement by the respondent.

 

3. On 26 September 2016 the respondent presented a response denying the claimant's complaint.

 

4. By letter dated 10 October 2016 the claimant and respondent were notified that they were required to take part in a Case Management Discussion on Monday 26 October 2016 at 9.30am by way of telephone conference, (unless there was a particular reason for them to attend in person), to progress the case to and list it for hearing.

 

5. In the above letter of 10 October 2016 requiring the claimant to attend the Case Management Discussion on 24 October 2016, the Tribunal Office set out the telephone number they would contact the claimant on and asked him to inform the Tribunal Office by return if it was incorrect. The claimant did not contact the Tribunal Office to indicate that the number was incorrect. Nor did he contact the Tribunal Office to indicate that he would be unable to take part in the Case Management Discussion on 24 October 2016 or to seek a postponement.

 

6. The Case Management Discussion therefore remained listed for 24 October 2016. The Clerk to the tribunal telephoned the number that the claimant had been informed in the tribunal's letter of 10 October 2016 would be used at the Case Management Discussion on a number of occasions but it was not answered. Mrs McManus indicated that she had also tried to contact the claimant by telephone but had been unsuccessful.

 

7. In light of the fact that the claimant had sought re-engagement at paragraph 6.11 of his claim form and as he had made no application to postpone the hearing, I proceeded with the Case Management Discussion. The claimant was ordered to:

 

(i) provide the respondent with details of all attempts made by him to secure alternative employment following his dismissal together with details of any jobs secured and nett earnings from such employment by 7 November 2016; and

 

(ii) provide the respondent with discovery of all payslips from any alternative employment he had secured from the date of his dismissal by 7 November 2016.

 

8. In light of the procedures involved and the number of witnesses on the respondent's side, the case was listed for three days from 7-9 December 2016. It was made clear to the claimant in the record of proceedings which was issued to the claimant and the respondent's representative setting out the Orders and the listing date that if the listing dates did not suit the claimant he should notify the tribunal accordingly by 31 October 2016 and he should also notify the tribunal of other dates that did suit him during December 2016. The record of that Case Management Discussion also informed the claimant that a Progress Case Management Discussion would take place at 9.30am on Wednesday 30 November 2016 to check that the time allotted to the Hearing of the case was still appropriate and that the bundles of documents were in the course of preparation. The Notice at the end of the Record of Proceedings informed the claimant that failure to comply with the Tribunal's Orders could result in his claim being struck out.

 

9. On 26 October 2016 Mrs McManus wrote to the claimant in the following terms:

 

"A Case Management Discussion was held by telephone on Monday 24 October 2016. If you have not already, you will shortly receive a letter from the tribunal outlining the outcome of the CMD. The case has been listed for hearing between 7-9 December 2016 and I would be grateful if you would contact either myself or the Labour Relations Agency to confirm that you have received the Case Management Discussion outcome and are aware of the hearing dates in December.

 

We are currently in the process of preparing our Discovery and will serve this on you shortly.

 

Should you have questions or wish to discuss the matter further, please do not hesitate to contact Mrs McManus."

 

10. The claimant did not respond to Mrs McManus's letter of 26 October 2016 and on 3 November 2016 Mrs McManus wrote to the claimant in the following terms:

 

"We refer to the above and enclose herewith our Discovery by way of service upon you.

 

We would be grateful if you would contact the office to confirm safe receipt of same. We look forward to hearing from you.

 

11. The claimant did not respond to Mrs McManus' further letter of 3 November 2016 and on 18 November 2016 Mrs McManus wrote to the claimant in the following terms:

 

"We refer to the above and to our letter dated 26 October 2016. Please now find enclosed a copy of same for your ease of reference.

 

We are concerned that no contact has been made with either ourselves or with the Labour Relations Agency confirming that you are aware of the hearing dates which are 7-9 December 2016. We would be grateful if you would contact either ourselves or the Labour Relations Agency as a matter of urgency to confirm that you are aware of the dates.

 

It was directed by the tribunal at the Case Management Discussion that you were to provide to us details of all attempts made to secure alternative employment following your dismissal together with details of any job secured and nett earnings from such employment by 7 November 2016 and furthermore you were to provide discovery of all payslips of any alternative employment from the date of your dismissal to us by 7 November 2016. We have not received any such discovery and unless same is provided to us within the next 7 days we will have no option but to bring the matter to the attention of the tribunal.

 

We look forward to hearing from you."

 

12. The claimant did not respond to that letter either and on 25 November 2016 Mrs McManus applied on behalf of the respondent for an Order that unless the claimant confirmed that he was continuing with his claim and unless he complied with the Orders for Discovery and Additional Information which were made at the Case Management Discussion on 24 October 2016 and which were issued to the claimant on 26 October 2016, that his claim should be struck out for failing to comply with the tribunal's Orders and for failing to actively pursue his claim. Mrs McManus therefore applied for the Progress Case Management Discussion which had been listed for 30 November 2016 to be converted to a Pre Hearing Review to consider the respondent's application. Mrs McManus pointed out that without full discovery the respondent was unable to address and consider any relevant issues with regard to mitigation which the claimant may wish to raise at the hearing and that the respondent was therefore unfairly prejudiced. Mrs McManus also submitted that the respondent believed that the claimant's claim had no reasonable prospect of success and therefore sought, in the alternative, that the claimant was ordered to pay a deposit as a condition of continuing with his claim. Mrs McManus confirmed that she had copied her letter to the claimant.

 

13. The respondent's representative was informed that the hearing on 30 November 2016 would remain as a Progress Case Management Discussion as there was insufficient time to give the claimant the 14 days' notice of the Pre Hearing Review to which he was entitled.

 

14. The claimant did not contact the Tribunal Office to indicate that the date of the Progress Case Management Discussion on 30 November 2016 did not suit him. Nor did he respond to the tribunal clerk's telephone calls to him prior to the commencement of the Case Management Discussion on 30 November 2016 and he did not attend in person. The Case Management Discussion therefore proceeded in his absence. Mrs McManus made an application for the hearing listed from 7-9 December 2016 to be postponed as a number of the respondent's witnesses were travelling from England and for a Pre Hearing Review to be arranged instead to consider the issues which are set out at paragraph 1 of this decision. I granted Mrs McManus' application on behalf of the respondent. I therefore postponed the hearing listed from 7-9 December 2016 and listed a Pre Hearing Review for Friday 16 December 2016 at 10.00am to consider the issues set out at paragraph 1 above. A record of the Progress Case Management Discussion was issued to the claimant on 30 November 2016. A formal Notice for the Pre Hearing Review was issued to the claimant on 30 November 2016. A formal Notice for the Deposit Pre Hearing Review was issued to the claimant on 3 December 2016.

 

The Statutory Provisions

 

15. Regulation 3 of the Industrial Tribunals (Rules of Procedure) Regulations (Northern Ireland) 2005 provides:-

 

(1) The overriding objective of these Regulations and the rules in Schedules 1, 2 and 3 is to enable tribunals and chairmen to deal with cases justly.

 

(2) Dealing with a case justly includes, so far as practicable -

 

(a) ensuring that the parties are on an equal footing;

 

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

 

(c) ensuring that it is dealt with expeditiously and fairly; and

 

(d) saving expense.

 

(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he -

 

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2 and 3; or

 

(b) interprets these Regulations or any rule in Schedules 1, 2 and 3.

 

(4) The parties shall assist the tribunal or the chairman to further the overriding objective.

 

16. Rule 18(7) of Schedule 1 of those Regulations provides:-

 

Subject to paragraph (6), a chairman or tribunal may make a decision or order -

 

(d) striking out a claim which has not been actively pursued;

 

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

 

Paragraph (6) provides:-

 

Before a decision or an order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The orders listed in paragraph (7) may be made at a pre-hearing review or a hearing under rule 26 if one of the parties has so requested. If no such request has been made such decisions or orders may be made in the absence of the parties.

 

17. Rule 19(1) provides:-

 

Before a chairman or a tribunal makes an order described in rule 18(7), except where the decision or order is one described in rule 13(2), or it is a temporary restricted reporting order made in accordance with rule 50, the Secretary shall send notice to the party against whom it is proposed that the order should be made. The notice shall inform him of the decision or order to be considered and give him the opportunity to give reasons why the order should not be made. This paragraph shall not be taken to require the Secretary to send such notice to that party if the party has been given an opportunity to give reasons orally to the chairman or the tribunal as to why the order should not be made.

 

The Legal Principles

 

18. In the Court of Appeal decision in Riley -v- The Crown Prosecution Service, [2013] EWCA Civ951, Longmore LJ stated at paragraph 27 of his judgment:-

 

"27 It is important to remember that the overriding objective in ordinary civil cases (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense. Article 6 of the ECHR emphasises that every litigant is entitled to "a fair trial within a reasonable time". That is an entitlement of both parties to litigation. It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time. ..."

 

19. In Rolls Royce Plc -v- Riddle (2008) IRLR873 the Employment Appeal Tribunal held that:-

 

"Where an application to strike out is made under rule 18(7)(d), the Tribunal is required to begin by asking itself whether the claimant has failed to pursue his claim actively. It will not usually be difficult to conclude that where a claimant has failed to appear at a full hearing of which he has been notified, that amounts to a failure to pursue his claim actively. The Tribunal is then required to ask itself whether, taking account of the whole circumstances, it ought to exercise its discretion so as to strike out the claim. The rule provides for a general discretion to strike out if the Tribunal is satisfied that there has been a failure to pursue a claim actively.

 

The rule is not drafted so as to fetter the discretion that is conferred by any particular considerations. As with all exercises of discretion, it will be important to take account of the whole facts and circumstances including the fact that strike out is the most serious of sanctions.

 

Cases of failure to pursue a claim actively will fall into one of two categories: (i) where there has been "intentional and contumelious" default by the claimant; and (ii) where there has been inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would not be possible or there would be serious prejudice to the respondent.

 

These principles appear to have been identified because of two problems of which a failure to pursue a claim actively may be indicative. The first is that it is quite wrong for a claimant to fail to take reasonable steps to progress his claim, in a manner that shows he has disrespect or contempt for the Tribunal and/or its procedures. In that event the question arises as to whether, given such conduct, it is just to allow the claimant to continue to have access to the Tribunal for his claim. That is a distinct and different matter from the second problem: if a claimant has failed to pursue his claim actively to an inordinate and inexcusable extent, so as to give rise to a real risk of prejudice to the respondent if the claim were to carry on, then a question arises as to whether or not there can still be a fair trial, and, if there is doubt about that, whether the claim should then be prevented from going any further. ..."

 

Decision

 

20. Having considered the claim and response forms together with the circumstances set out above and Mrs McManus' detailed submissions, I concluded that in light of the claimant's failure to:

 

(i) seek a postponement of or to participate in the Case Management Discussion which had been listed for 24 October 2016 to ensure the progress of his case to and list it for hearing;

 

(ii) comply with the Orders for Discovery and Additional Information made at that Case Management Discussion;

 

(iii) respond to any of the respondent's solicitors' correspondence;

 

(iv) seek a postponement of or to participate in the Progress Case Management Discussion on 30 November 2016;

 

(v) seek a postponement of the Pre Hearing Review or to take part in it on 16 December 2016;

 

the claimant has deliberately and intentionally failed to pursue his claim. While I am mindful that striking out a claim is the most serious of sanctions, I am also satisfied that the manner in which the claimant has behaved, as set out above, shows a disrespect and/or contempt for the tribunal and its procedures and it would not therefore be just to allow the claimant to continue to have access to the tribunal for his claim and it is therefore struck out on the ground that he has failed to actively pursue it.

 

21. In light of my decision at paragraph 20 above, I did not consider it necessary to deal with the respondent's alternative application for the claim to be struck out for failing to comply with the tribunal's Orders for Additional and Discovery. Nor was it necessary to consider the respondent's application that the claimant's claim had little reasonable prospect of success and whether he should therefore be ordered to pay a deposit not exceeding £500 and to receive a costs warning as a condition of proceeding with his claim.

 

 

 

 

______________________________________

E McBride CBE

President

 

Date and place of hearing: 16 December 2016, Belfast

 

Date decision recorded in register and issued to parties: