“26. ……. While Mr Harry's explanation of his conduct leaves a great deal to be desired (and while Mrs Bennett's expressed attitude to it makes the worst that could be made of the situation he created) it suggests pretty clearly that if he had been confronted by the Lamb tribunal with the impending consequences of his intemperate outburst he would, not too graciously perhaps, have climbed down. As the EAT put it: "Before discontinuing the proceedings [the tribunal] ought to have required Mr Harry to affirm or withdraw his accusations." It is possible, of course, that he would have refused to do either thing – but there was only one way to find out. In other words a point had not been reached, and was not necessarily going to be reached, at which the entire lengthy hearing had to be aborted. I think that the Lamb tribunal, although its motives command respect, retreated prematurely from the field. B. Was the case conducted in a scandalous manner? 27. While the issue of scandalous conduct of proceedings does not depend on the tribunal's self-recusal, it is necessary to be clear what conduct we are looking at. Is it simply Mr Harry's conduct of the case up to the point when the Lamb tribunal recused itself? Is it that conduct plus his conduct and evidence before the Warren tribunal and possibly too before the EAT? Is it his conduct of the case as it would or might have been had he been given the chance to retract? I do not see, if I am right in my conclusion that he should have been given that chance, how it is permissible to judge his conduct of the case without regard to what might have happened had the tribunal, as it should have done, gone the next mile. 28. If that is done, the basis of the Warren tribunal's decision falls away. Its conclusions include these passages: ‘In this case the admitted conduct of Mr Harry was repeated and continued over a period of time, and was in our view on any objective view quite scandalous.… This tribunal, understandably in our view, were profoundly offended by the remarks which were made and felt that they were no longer able to carry out their function judicially. The Tribunal must be the judge of its own bias.’ Instead we are looking at conduct which was certainly improper but which was reversible and did not therefore have as its implicit consequence the aborting of the entire proceedings. This, I think, was recognised by the EAT and is the reason why it turned to the exercise of its own powers, which I will come to under (d) below. 29. But the predicate of the use of the strike-out power by either the Warren tribunal or the EAT was not simply that Mr Harry's own conduct should be able to be characterised as scandalous: it was that the manner in which he had been conducting the proceedings on the applicant's behalf should be able to be so characterised. This requires attention to be paid to three distinct things: the way in which the proceedings (which had gone on for 10 or 11 days) had been conducted; how far it is right to attribute any misconduct of the proceedings to the applicant herself; and the significance in this context of the epithet 'scandalous'.”
“55. However, quite apart from procedural matters, we turn to the questions that would require, as a matter of law as it appears to us, to be decided by a Tribunal, once faced properly with a question under Rule 15 (2) (d). (1) There must be a conclusion by the Tribunal not simply that a party has behaved unreasonably but that the proceedings have been conducted by or on his behalf unreasonably. As is clear from the decision, which we have quoted in extenso, there was no such finding by this Tribunal. The Tribunal commented, and we repeat the comment: 8 ‘If an employer such as the respondent seeks to operate outside the Tribunal and to take matters into his own hands, it is appropriate that he should forfeit the privilege of conducting a defence within the Tribunal.’ Quite apart from the fact that the words "operating outside the Tribunal" almost indicate that they were concluding that he was not in fact conducting the proceedings of the Tribunal, there is, on any basis, that apart, no express finding within the terms of 15 (2) (d). We are by no means saying that there can be no finding that proceedings have been conducted in the relevantly objectionable ways, simply because the conduct that occurred is proven to have taken place outside the curtilage of the Tribunal. It is not necessary that such objectionable conduct should either amount to the sending of legal documents, or the receipt of legal documents, or their non-receipt, or behaviour in the waiting room, or behaviour in the court room. There can no doubt be a finding in relation to conduct outside the court room and outside the ambit of legal correspondence which could be found to be a method of conducting the proceedings. For example, it may well be, on appropriate facts, that a Tribunal might find that if there were a threat that unless proceedings were withdrawn some course or other could be taken, that that would amount to a scandalous method of conducting those proceedings. But as we have indicated, there was no such finding here. Now we have seen the notes of evidence of what Mrs Mills is said to have said on 28 May in the absence of Mr Bolch, we note, and this is the highest that the case can be substantiated, on the notes of evidence at any rate, and there is no reference to it, as we have indicated, in the Tribunal's findings, that she said "In my mind it was connected with the ET". But the case is put no higher than that. and, as we have indicated, there was no reference to that evidence in the Tribunal's decision nor any conclusion in that regard. If there is such to be a finding in respect of Rule 15 (2) (d), in this or any case, there must be a finding with appropriate reasons, that the conduct in question was conduct of the proceedings and, in the circumstances and context, amounted to scandalous, unreasonable or vexatious such conduct. This proposition is supported by the recent decision of the Court of Appeal, to which our attention has been drawn by Miss Genn, in Bennett v Southwark London Borough Council[2002] ICR 881 , where the conclusion was that conduct in the Tribunal by an advocate, by way of aberrant and offensive behaviour, was not, in those circumstances, relevant conduct within Order 15 (2) (d). (2) Assuming there be a finding that the proceedings have been conducted scandalously, unreasonably or vexatiously, that is not the final question so far as leading on to an order that the Notice of Appearance must be struck out. The helpful and influential decision of the Employment Appeal Tribunal, per Lindsay P, in De Keyser Ltd v Wilson[2001] IRLR 324 is directly in point. De Keyser makes it plain that there can be circumstances in which a finding can lead straight to a debarring order. Such an example, and we note paragraph 25 of Lindsay P's judgment, is "wilful, deliberate or contumelious disobedience" of the Order of a court. But in ordinary circumstances it is plain from Lindsay P's judgment that what is required before there can be a strike out of a Notice of Appearance or indeed an Originating Application is a conclusion as to whether a fair trial is or is not still possible. That decision is not only a decision binding on Employment Tribunals and persuasive before this Tribunal, but it follows well-established authority – in the High Court in the persuasive decision of Logicrose Ltd v Southend United Football Club Ltd by Millett J (as he then was), reported in The Times5 March 1998 , and in the Court of Appeal in Arrow Nominees Inc v Blackledge[2000] 2 BCLC 167 ; both of which authorities were recited by Lindsay P in the course of his judgment in De Keyser. An enquiry must be held by the tribunal, having made its finding as to the conduct in question, absent the exceptional case as to whether a fair trial is still possible. In Logicrose it was held that such a fair trial was still possible. In Arrow Nominees it was held that it was not. The reason for the need for that question to be asked, save in the exceptional circumstance to which we and Lindsay P have referred, is that a striking out order is not (or at any rate not simply) regarded as a punishment. We quote from Millett J's judgment as reported in The Times: ‘The deliberate and successful suppression of a material document was a serious abuse of the process of the court and might well merit the exclusion of the offender from all further participation in the trial. The reason was that it made the fair trial of the action impossible to achieve and judgment in favour of the offender unsafe. But if the threat of such exclusion produced the missing document then the object of Order 24, rule 16 was achieved. In his Lordship's judgment an action ought to be dismissed or the defence struck out only in the most exceptional circumstances once the missing document had been produced and then only, if, despite its production, there remained a real risk that justice could not be done. That might be the case if it was no longer possible to remedy the consequences of the document's suppression despite its production. It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, however deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory.’ One has only to set those words of Millett J against the words of the Tribunal in paragraph 8 in this case "…it is appropriate that he should forfeit the privilege of conducting a defence within the Tribunal" to see that in our judgment the Tribunal in this case did not approach the question correctly in law. Employment tribunals must have the power to manage cases, and to make orders that unless their orders be complied with applications will be debarred or dismissed, and if there are breaches of those orders then of course, pursuant to what Lindsay P himself made clear in De Keyser, there will have been, absent a proper excuse, wilful disobedience of a court order, which can lead to a strike out. There will plainly be circumstances, perhaps such as we indicated earlier by way of illustration, in which conduct of proceedings, for example by way of a threat, even if it results in some kind of promise of good behaviour, or something of that kind, by a respondent, can still have such lingering effect that the Tribunal is of the view that there can no longer be a fair trial. That can certainly be the case in the example given by Millett J where documents have been fabricated, if, for example, no tribunal hearing the case can be satisfied that there are no further documents to be produced or that the present documents may not also have been fabricated, because confidence has been entirely lost in the good faith and honesty of one party or the other. But there must be, and certainly should have been in this case, in our judgment, a conclusion as to whether or not a fair trial can and could be held. (3) Once there has been a conclusion, if there has been, that the proceedings have been conducted in breach of Rule 15 (2) (d), and that a fair trial is not possible, there still remains the question as to what remedy the tribunal considers appropriate, which is proportionate to its conclusion. It is also possible, of course, that there can be a remedy, even in the absence of a conclusion that a fair trial is no longer possible, which amounts to some kind of punishment, but which, if it does not drive the defendant from the judgment seat (in the words of Millett J) may still be an appropriate penalty to impose, provided that it does not lead to a debarring from the case in its entirety, but some lesser penalty. (4) But even if the question of a fair trial is found against such a party, the question still arises as to consequence. That is clear because the remedy, under Rule 15 (2) (d), is or can be the striking out of the Notice of Appearance. The effect of a Notice of Appearance being struck out is of course that there is no Notice of Appearance served. The consequence of there being no Notice of Appearance by a Respondent is set out in Rule 3 (3), and it reads as follows: 3 (3) ‘A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except – (a) to apply under rule 17 for an extension of the time appointed by this rule for entering an appearance’ Another option would be to apply for a review of any decision under Rule 13, if the party had not received notice (sub-paragraph 3 (3) (c)). But sub-paragraph 3 (3) (b) instantly entitles a respondent who has not entered an application: ‘…to make an application under Rule 4 (1) for a direction requiring the applicant to provide further particulars of the grounds on which he relies and of any facts and contentions relevant thereto.’ It is thus apparent that even a party who has not put in a Notice of Appearance, never mind one who has put one in and has it on the court file but is then debarred from further participation, is entitled to probe the case for the applicant. We are satisfied that any tribunal making an order, in the circumstances in which this Tribunal made its order, must ask the question as to what the appropriate consequence is. As a result of Rule 3 (3) a respondent who has not entered an appearance is not entitled to take any part in the proceedings. But that does not prevent the tribunal, pursuant to its case management powers under Rule 4 or its powers to regulate its own procedure under Rule 15, to make appropriate and proportionate orders. An option in such a case as this would have been for the Tribunal to debar the Respondent from taking any further part in liability but not necessarily to debar the Respondent but rather to permit him to take part and at the very least probe the case for the Applicant on the question of compensation. This Tribunal did not ask itself any such questions.” 8 ‘If an employer such as the respondent seeks to operate outside the Tribunal and to take matters into his own hands, it is appropriate that he should forfeit the privilege of conducting a defence within the Tribunal.’ ‘The deliberate and successful suppression of a material document was a serious abuse of the process of the court and might well merit the exclusion of the offender from all further participation in the trial. The reason was that it made the fair trial of the action impossible to achieve and judgment in favour of the offender unsafe. But if the threat of such exclusion produced the missing document then the object of Order 24, rule 16 was achieved. In his Lordship's judgment an action ought to be dismissed or the defence struck out only in the most exceptional circumstances once the missing document had been produced and then only, if, despite its production, there remained a real risk that justice could not be done. That might be the case if it was no longer possible to remedy the consequences of the document's suppression despite its production. It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, however deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory.’ 3 (3) ‘A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except – (a) to apply under rule 17 for an extension of the time appointed by this rule for entering an appearance’ ‘…to make an application under Rule 4 (1) for a direction requiring the applicant to provide further particulars of the grounds on which he relies and of any facts and contentions relevant thereto.’ This Tribunal did not ask itself any such questions.”
“20. It is common ground that, in addition to fulfilling the requirements outlined in §5 above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was "the only proportionate and fair course to take". This aspect of their determination played no part in Mr James’s grounds of appeal and accordingly plays no part in this court's decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us. 21. It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings[1992] 1 WLR 1196 , especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.”
“Dealing first with procedural unfairness, there is, in my view, a clear distinction between the discrimination and other payments claims on the one hand and the whistle blowing and unfair dismissal claims on the other. There was no notice whatsoever that the striking out of the former was to be considered at the Preliminary Hearing, while there was 11 days’ notice in relation to the latter. In my view, the decision to strike out the discrimination and other payments claims was made in clear breach of the provisions of Rule 37. Rule 37(2) requires a party to be given a reasonable opportunity to make representations when consideration is being given to striking out. The opportunity must be adequate, and that necessarily includes notice so that oral or written representations can be prepared. I do not consider that Catton is distinguishable, on the basis that the ground for striking out was conduct where the facts were not intimated prior to the hearing. In any event, it was known in this case that the Claimant was a litigant in person. It was procedurally unfair in the extreme to expect him to address the issue of striking out of the discrimination and other payments claims when he had been given no prior notice that they could be dismissed at the hearing.”
“So far as the procedural unfairness argument relates to the other claims, the position is rather different. There is no specified period of notice required for a striking out claim. The Claimant was given 11 days’ notice of the decision to canvass striking out the whistle blowing and unfair dismissal claims. While I am satisfied that fair notice of a hearing at which striking out will be considered is essential, it would be inappropriate and perhaps incompetent for me to try to “read into”
“I need to say something at this point about conduct of the case. HO [the claimant’s representative] has made serious allegations against NC [then counsel for the Respondent] in particular. Yesterday, I said to HO ‘IR dealt with.’ He said I was biased and had prejudged the outcome of the application. Inviting HO to withdraw allegations on 5 April. If any improper conduct for NC, he can pick it up later.”
“You need to be mindful of unreasonable or vexatious conduct. Respondent already reserved the position on costs. Costs could be made against HO or against you personally for wasted costs. You cannot act unreasonably without impunity, risk it could be struck out.”
“If they [the claimant and her representative] do not reappear or are unprepared to engage, I am instructed to make a strike out application on the basis of the way the case has been pursued and because we still do not know what the issues are.”
“How long will you need to prepare? Twenty minutes?”
“A little bit longer,” and the judge agreed to give thirty minutes. The judge then, at 12.10 p.m. said this: “I will email the claimant to say hearing strike out application at 12:10 p.m.”
“If further disruption, will need to make it.”
“I am not sure what application,” to which the judge replied: “Application to strike out claim,” to which the representative replied: “What claim?”
“The entirety of it.”
“Are you prepared to engage to assist us?”
“Like I said, I’ve always said.”
“A simple yes or no.”
“Yes of course, but I think a false application.”
“I would like to make my application.”
“Like I said, I’ve always said.”
“Yes of course, but I think a false application.”
“I would like to make my application.”
“Took just over fifteen minutes. Just unmute HO [claimant’s representative]. Do you want to respond? You have fifteen minutes?”
“Today not appropriate time to make application. I think it is unreasonably canvassed. Trying to use advantage on the basis of references I have made …. I am not prepared today to respond properly. Should have been made before hearing. Your position as a judge professionally embarrassed.”
“I will ask you to give me more time. Impromptu application.”