Mrs L Baldwin v Sandwell and West Birmingham Clinical Commissioning Group: 1300610/2016
EMPLOYMENT TRIBUNALS
Case No 1300610/2016
Between
Mrs L BaldwinClaimantSandwell and West Birmingham Clinical Commissioning GroupRespondent
Before
Employment Judge PerryDate 11 August 2017
REASONS
[1]This claim has been referred to me by Acting Regional Judge Findlay to consider if an unless order issued on 22 December 2016 by Employment Judge Lloyd (as varied by Employment Judge Hughes) has been complied with.[2]Whilst the claimant has sought the advice of and retained counsel for at least one hearing she currently appears in person. In correspondence she has stated she cannot afford to instruct counsel going forward so I will proceed on the assumption she will not be represented going forward.[3]Following the introduction of rule 38 Employment Tribunal Rules of Procedure 2013 there are three discrete stages of the Employment Tribunal procedure concerning Unless Orders, each of which involve different legal tests. In Wentworth-Wood & Ors v Maritime Transport Ltd UKEAT/0316/15 HHJ Richardson summarised the position :- “5. Firstly, there is the decision whether to impose an Unless Order and if so in what terms. This is a decision to be taken in accordance with the overriding objective set out in Rule 2. As Rule 38(1) makes clear, an Unless Order is effectively a conditional Judgment, dismissing the whole or part of a response without any further Order: …[6]Secondly, there is the decision to give notice under Rule 38(1). This feature was new to the 2013 Rules. Until that time there was no specific process for - 1 / 19 - declaring whether an Unless Order had taken effect, and there could be doubt or confusion as to whether this had happened. In giving notice the Employment Tribunal is neither required nor permitted to reconsider whether the Unless Order should have been made: it has already been made, and if there has been any material non-compliance the sanction contained within it will already have taken effect. The decision to give notice simply requires the Employment Tribunal to form a view as to whether there has been material non-compliance with the Order: see Marcan at paragraph 34 and Johnson at paragraph 7. The notice (or refusal to give notice) sets out its decision on this question and brings clarity to the position for the parties.[7]Thirdly, if the party concerned applies under Rule 38(2), the Employment Tribunal will decide whether it is in the interests of justice to set the Order aside. This is not the same as asking whether it was in the interests of justice to make the Order in the first place. It is the stage of the procedure at which the Employment Tribunal considers relief against sanction, and it can take into account a wide range of factors, including the extent of non-compliance and the proportionality of imposing the sanction; see Neary v Governing Body of St Albans Girls' School [2010] ICR 473 CA at paragraphs 48 to 53. …” 4 The file was referred to me to address stage 2. That is undertaken by the Tribunal not a specific Employment Judge. As Wentworth-Wood at [6] makes clear the Employment Tribunal is neither required nor permitted at stage 2 to reconsider whether the Unless Order should have been made. I discern from the correspondence sent by the claimant that she argues she has complied with the order and further that the claim should not be struck out, asserting amongst other matters, the interests of justice require it and her health is preventing her from pursuing the claim in the way that she would wish. In my judgment that is an application seeking relief from sanctions (stage 3). That is also undertaken by the Tribunal not a specific Employment Judge and I thus intend to consider if relief should be granted. Several ancillary matters will arise from that that I shall need to address if I find in the claimant’s favour, these include various applications the claimant refers to as not having been addressed and case management generally. 5 References in round brackets below are unless the context suggests otherwise to the paragraph of these reasons and in square brackets to the paragraph of a cited case. 6 Before I address compliance and the application for relief I first turn to the background against in which the Unless Order was made (8) because it is lengthy and complex, I then relay the relevant law including that with regard to relief from sanctions (51), my findings and conclusions on whether the unless order was complied with (59) and then how I intend to determine the question whether the claimant be granted relief from sanctions (62). 7 The background below is a summary of the principal events as they appear to me. It is not intended and is not exhaustive, it would be disproportionate to relay that in full nor is it necessary.
BACKGROUND
[8]This claim was presented on 5 April 2016. The claimant made a number of complaints including unfair dismissal, age discrimination, race discrimination, sex discrimination, religion or belief discrimination, a failure to pay a redundancy payment, failure to pay notice pay, failure to pay arrears of pay and also a failure to make "other payments". In - 2 / 19 - the narrative of her claim she referred to her raising concerns which she described as “whistleblowing" and “bullying, harassment, discrimination and victimisation”. She also claimed to have suffered detriment in the context of the Public Interest Disclosure Act 1998. She made it clear she wished to bring a claim for interim relief.[9]In her claim the claimant states that she was employed as a business support officer by the respondent and her employment commenced on 9 May 2009. Whilst she ticked the box to indicate her employment was continuing in section 8.1 of her claim form (ET1), in the narrative she indicated she was suspended on 16 July 2015 and dismissed on 30 March 2016.[10]In section 2.6 of her ET1 the claimant stated that her claim contained an application for interim relief but did not provide a conciliation certificate number from ACAS.[11]Prior to the Interim Relief hearing the claimant sought a postponement on the basis her health was not up to it, as not knowing what was expected of her caused her anxiety. The respondent objected. On 12 May 2016 Employment Judge Dimbylow directed she lodge medical evidence in support. She lodged in response an undated letter from her GP which indicated the claimant had been feeling very stressed and low, that she had been undergoing counselling and had started on medication. The GP recorded the claimant did not fell mentally fit enough to be able to attend, “I support her. I would be grateful if this could be considered and she could be helped in any way”.[12]That was referred to the duty judge on 13 May 2016 (me) and I rejected that application on the basis :-12.1 the GP letter did not identify what medication the claimant was on and/or state his view of her state of health or a diagnosis,12.2 the GP did not identify why any of those matters would prevent her attending a 1 day hearing and12.3 the interests of justice dictated a speedy determination of the interim relief application by virtue of the very nature of the same.[13]Via an email response the same day the claimant sought amongst other matters “leniency and your understanding” essentially on the basis that she needed to rebuild her (mental) health. I again rejected that application on 13 May on the basis the interim relief application needed to be addressed urgently and there was no indication when the claimant would be fit. The claimant was reminded if she wanted to lodge submissions in writing could she do so.[14]At 00:52 on the morning of the interim relief hearing (16 May) the claimant lodged a 4- page letter seeking clarification of what documents she needed to lodge stating despite having 390 pages of notes she could not construct a clear and concise document detailing all the acts and omissions on which she relied. She enclosed a 33-page letter of appeal dated 4 May 2016.[15]Her application for Interim Relief was heard by Employment Judge Lloyd on 16 May 2016 and was refused. Having referred to the tests in Taplin v Shippam Ltd [1978] IRLR and Ministry of Justice v Sarfraz [2011] IRLR 562 he concluded that:- “3.10 For all these reasons I come to the conclusion that there is not “a pretty good chance" of the claimant establishing that the reason for her dismissal was that she made a protected disclosure. Even in the event that it is established that - 3 / 19 - any of her complaints amounted to a protected qualifying disclosure that can still not demonstrate that she was dismissed because she had made such complaints Rather, the evidence before the tribunal at a substantive hearing will be that she was dismissed in circumstances where her behaviour rendered her an unmanageable employee and that there had been a complete breakdown of working relationships involving her.”[16]However, as to the absence of the early conciliation certificate he stated:- “1.3 The claimant's claim in relation to whistleblowing has not been set out with absolute clarity. However, the claimant is a litigant in person and although she has not explicitly set out that she was dismissed for whistleblowing and that she has acquired the right to make an application for interim relief, I believe that is fair for me to conclude that she is indeed contending that she was dismissed for making a protected disclosure.”[17]Having delivered judgment, he sought to address case management but was prevented from doing so due to a fire alarm. The judgment and reasons were signed on 18 May and sent to the parties on 20 May 2016.[18]On 17 May 2016 the sole current respondent wrote to the tribunal and claimant making 3 applications:-18.1 The second respondent be removed from the proceedings on the basis it was not the claimant’s employer,18.2 Requesting further and better particulars of the claimant’s claim by 13 June 2016, and18.3 The respondent be granted an extension of time to present its response to 11 July 2016 (28 days after the further and better particulars of the claimant’s claim had been provided)[19]The further and better particulars sought were: “a) In respect of the claim that the Claimant was dismissed because she made a protected disclosure (whistle blowing), the Claimant is asked to identify: i) each disclosure she says that she made; if in writing Identifying the document in which it was made and if orally, identifying the substance of what she said which amounts to a disclosure; ii) to whom were the disclosure(s) made; iii) what was the date of the disclosure(s); iv) what information was disclosed; and v) In respect of each disclosure, on what basis does she allege that it amounts to a qualifying disclosure for the purposes of section 43B of the Employment Rights Act 1996: which provides that "a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following - 4 / 19 -(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is falling or is likely to fall to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, Is occurring or is likely to occur,(d) that the health or safety of any Individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. vi) Why she reasonably believes that the disclosure(s) were made 'in the public interest'; vii) Which of the protected disclosure(s) she says caused her dismissal; viii) The basis of her contention that she was dismissed because of the protected disclosure(s) made i.e. how does she say that the dismissal was caused by the protected disclosure(s). b) In respect of the claim that she was unfairly dismissed, on what basis does the Claimant allege that the dismissal was unfair, by reference to the reason for the dismissal and/or the procedure used by the First Respondent to carry out her dismissal?”[20]On 2 June 2016, the claimant sought a reconsideration of the orders made by Employment Judge Lloyd on 16 May 2016 and amongst other matters in a 10-page letter again referred to her ill health (whilst she did not identify the condition from which she was suffering she explained that she had been awaiting an assessment since late 2015), and stated she had obtained an Early Conciliation Certificate and made amongst other matters a number of serious allegations including fraud in a public office.[21]By a notice of 15 June 2016 the case management hearing was re-scheduled for 5 July 2016 and listed to take place in person (because the claimant was a litigant in person).[22]The claimant lodged further correspondence which Employment Judge Lloyd subsequently referred to as a request for the postponement of the hearing on the grounds of her health and her "ability to represent her case" and essentially seeking a stay of the claim "… until a diagnosis has been received or my health has improved sufficiently well to allow me to present my case."[23]The claimant's postponement application was refused but the hearing of 5 July was converted to be heard by telephone. That was again heard by Employment Judge Lloyd. He recorded in the Order at (3) that he was:- - 5 / 19 - “b) … acutely concerned during this hearing about the lack of medical evidence but also about the implication in what the claimant says; namely that she will only resume her progression of her claims when she feels able to do so. It is clear that her medical position is not clarified in any respect. The tribunal is concerned as is the respondents' solicitors that these proceedings may come to a halt indefinitely. The respondents may be acutely prejudiced in such circumstances. We may reach a point where a fair trial of these claims becomes inordinately difficult if not impossible though sheer passage of time without progress of the litigation. c) I fully acknowledge the tribunal's duty of fairness to the claimant as well as the respondent, but I agreed with Ms Edwards for the respondents that the claimant has a duty actively to pursue her claims; which claims are so far vague and illdefined and are not moving forward. That is due to the claimant's inaction; she says because she is unwell but that is not corroborated by evidence. The tribunal and the respondents are entitled to require the claimant to evidence properly her capacity to conduct these proceedings. If she is not fit to carry on now, precisely when will be able, actively to pursue her claims with clarity? Until then, the respondents cannot know exactly the claims they are expected to meet. d) I accept as does Ms Edwards, albeit with reluctance, that it is probably counterproductive to attempt to address the variety of case management and preliminary issues at this hearing. But a clear and time-limited obligation must now be placed on the claimant to properly evidence her position, with a view to putting this case back on track as quickly as possible. The respondents' solicitor is candid; that further lack of certainty or urgent progress will certainty give rise to a strike out application on behalf of her clients on the next occasion. e) It is imperative that the claimant commissions independent and cogent expert medical evidence as to her capacity to proceed and precisely when she will be capable. f) I invited the claimant to seek independent legal advice about the ongoing conduct of her proceedings and if at all practical her representation in the litigation.”[24]The claim was listed for a further in person hearing on 25 August 2016 before Employment Judge Lloyd with a time estimate of one day as that would allow time to address any applications made in the interim to include the possible strike out of part or all of the claimant's claims. He made the following orders:- “1. Medical evidence 1.1 The claimant shall provide to the respondents and the tribunal by 16 August 2016(a) Copies of all medical notes, reports and other evidence in the possession of the claimant or her GP and other medical and health professionals on which the claimant relies to evidence her (i) state of health and (ii) her capacity to proceed with her claims (iii) precisely when she will be capable of actively pursuing her claims.(b) In addition, provide to respondents and the tribunal a written medical report from an independent suitably qualified and specialist medical consultant also addressing issues (i) (ii) and (iii) at (a) above. - 6 / 19 - 2. Agenda for the preliminary hearing 2.1 The agenda and issues for the PH of 25 August shall be; a) That all the claimant's claims, other than those under ss.94-98 ERA and 103A ERA be struck out on the grounds that she had not complied with the requirements to engage in ACAS Early Conciliation (EC). b) That the second respondent shall be removed as a party to the proceedings. c) That the claimant provides further information about her claim; in line with the respondents' request in the letter of 17 May 2016. d) The respondents’ presentation of the ET3 and grounds of resistance. e) Whether the claimant’s medical evidence at 1.1 a) – b) above declares the claimant fit, actively to pursue her claims forthwith. f) Subject to e) above, whether her claims are/will be capable at all of a fair and reasonably expeditious trial.”[25]The claimant took up Employment Judge Lloyd’s suggestion at 3(f) (see (23) above) and instructed counsel, Dr M Ahmad, to attend the hearing on 25 August 2016 on her behalf. As to issues 2(e) and (f) the result of that hearing was recorded thus :- “3) … No relevant evidence had been produced by the claimant and the three questions have not been addressed at all. The letter from Dr Pavir Sharma dated 2 August 2016 addressed to the claimant’s GP is wholly inadequate to meet paragraph 1.1 (a) and (b).”[26]Employment Judge Lloyd then gave the following judgment and directions which he recorded were made by consent:- 1. “I dismiss the respondents’ application to strike out all of the claims brought by the claimant in her ET1 of 5 April 2016. However; 2. The claimant’s claims, other than those under ss.94-98 ERA and 103A ERA, shall be struck out forthwith in their entirety on the grounds that she had not complied with the requirements to engage in ACAS Early Conciliation; and as a consequence the tribunal has no jurisdiction to hear them. 3. The second respondent shall be dismissed from the proceedings forthwith. 4. The claimant shall on or before 22 September 2016 provide to the respondent and the tribunal further and better particulars of her remaining claims, compliant with the respondent’s request for further information set out in Messrs Capsticks letter of 17 May 2016. - 7 / 19 - 5. The respondent shall on or before 20 October 2016 lodge with the tribunal and copy to the claimant a completed ET3 and detailed grounds of resistance by way of response to the claimant’s remaining claims. 6. There shall be a further preliminary hearing in person at this tribunal, for further case management directions on Tuesday 29 November 2016, commencing at or about 10:00am with a time estimate of half a day. 7. The parties agree that there shall be presumption of the claimant’s fitness actively to pursue the proceedings to their conclusion, including all tribunal attendances as required and all other engagement with the tribunal process. The burden shall rest with the claimant in respect of any contention of non-fitness or ill-health, subject that any such contention must be supported by independent medical evidence. The respondent shall have leave to challenge such medical evidence as appropriate.”[27]Thus, it was agreed by the claimant with the assistance of her barrister that going forward the claimant was fit to pursue the tribunal claim. Notwithstanding that the claimant continues to assert she is not fit. So far as I can discern she has not provided the information that was set out in paragraph 1.1 of the order of 25 August 2016 (24) that would enable the tribunal to re-consider the same.[28]Whilst a reconsideration request was subsequently made that was rejected. Accordingly, the only live claims before me are claims of unfair dismissal pursuant to s.98(4) and s103A.[29]Further and better particulars were provided by the claimant on 23 September 2016. On 22 September 2016 Employment Judge Lloyd identified that whilst the claimant had complied late, the infringement was a marginal one and it was in the interests of justice that her non-compliance be waived. A response was lodged by the respondent on 20 October 2016. Around this time a number of requests were made by the claimant. Amongst other matters they included an application to strike out the response on the basis it should have been lodged by 3 May 2016 (see the claimant’s email of 26 October 2016).[30]Prior to the hearing on 29 November 2016 the respondent lodged an agenda setting out the applications it understood were being made by both the respondent and the claimant and a list of issues. The respondent’s list of issues identified further and better particulars that were sought in square brackets. Those requests with the relevant headings were:- “Protected disclosures 1. Did the Claimant make disclosures of information:- a) verbally to Claire Parker, Andy Williams and Jon Dicken in August 2012; - 8 / 19 - [The Claimant to identify what she said to each of(i) Ms Parker;(ii) Mr Williams and(iii) Mr Dicken, when and where which she contends amounted to a protected disclosure.] … 2. If so, did that information tend to show in the Claimant’s reasonable belief that: a) the Respondent had failed, was failing or was likely to fail to comply with legal obligations to which it is subject; [The Claimant to identify by reference to those disclosures which legal obligations she believed had not been complied with, were not being complied with or were likely not to be complied with (as opposed to any other views that the Claimant holds about the Respondent which she has expressed since the disclosures)]. b) The health and safety of any individual had been, was being or was likely to be endangered. [The Claimant to identify by reference to those disclosures how she believed that an individual’s health and safety has been, was being or was likely to be endangered (as opposed to any other views that the Claimant holds about the Respondent which she has expressed since the disclosures)]. … Unfair dismissal … 8. The Claimant contends that her dismissal was unfair because: … d) False information about her employment record was provided at the disciplinary hearing; [The Claimant to identify what false information she says was provided about her at the disciplinary hearing.]”[31]Following the hearing on 29 November, on 20 December 2016 a Judgment was issued by Employment Judge Lloyd dismissing applications by the claimant of31.12 June 2016, for a reconsideration of the tribunal’s judgment refusing interim relief,31.230 August 2016 for31.2.1 reconsideration of the tribunal’s judgment striking out the claimant’s claims, with the exception of those under ss.94-98 ERA and s.103A ERA,31.2.2 to add as respondents “NHS England” and “The Secretary of State for Health” and to remove the present respondent.[32]An order was also made requiring the claimant provide under the heading “FURTHER INFORMATION” the following:- - 9 / 19 - “1.1 The claimant shall provide to the respondent by 20 December 2016, the further information required by the respondent and shown in square brackets in the document headed “Respondent’s List of Issues”, dated 22 November 2016. …” Thus that order related to paragraphs 1(a), 2(a), 2(b) and 8(d) of the request for further and better particulars.[33]At 15:21 on 21 December the respondent sought an unless order and at 17:13 a number of corrections to the judgment and Order of 20 December 2016. The claimant at 20:07 respondent and amongst other matters referred to the respondent’s failure to provide a valid contract of employment and making an allegation or perjury. She stated the judiciary know the detriment I have been subjected to for blowing the whistle was to be subjected to a raft of abuse. The respondent was asked to indicate if it accepted the claimant’s response addressed the default. It indicated it did not address the same and an unless order was issued by Employment Judge Lloyd on 22 December 2016 that the claimant was to provide “… by no later than 4:00 pm on Wednesday 28 December 2016, the further and better particulars ordered by paragraph 1.1 of my order of 21 December 2016.” in default of which the claimant’s claim would be struck out without further order or application.[34]The claimant thereafter wrote to the tribunal asking why her concerns had not been addressed at the hearing on 29 November without identifying what they were and referred to a recusal request she had made. The file was referred to Employment Judge Hughes in Employment Judge Lloyd’s absence on leave and directed that the correspondence would be referred to Employment Judge Lloyd on his return and that the time for compliance would be extended to 3 January 2017.[35]On 28 December 2016 the claimant lodged a 14 page email referring to her own illness and that her husband and other members of her family had had to undergo emergency medical treatment in recent days. The claimant referred to a recusal request made of Employment Judge Lloyd on 13 December, objected to being asked to provide a response over the Christmas period as a practicing Christian, objected to orders being made against her as a tax payer, that she was not on an equal footing with the respondent had had to pay a fee to bring the claim (implying she was entitled to assistance form the Tribunal) and that her own requests had not been dealt with. She alleged the respondents were asking for information they had been given during the course of her disciplinary hearing in March 2016 and in her grievance hearing file. She referred to the failure of the tribunal to address a request she had made on 24 & 25 August and 30 September to strike out the respondent’s response and for disclosure of documents made on 24 & 25 August and 30 September. She referred to the perverse requests being made of her by the respondent (and the tribunal).[36]The claimant in section 9 of that response addressed the request (and subsequent order for) further and better particulars (see (30) above). She adopted the descriptions (following the numbering in the request for further and better particulars) “section 1(a), 2(a), 2(b) and 8(d)”. Addressing these in turn.36.1 Section 1(a). The claimant stated what had been said to Claire Parker was relayed in her grievance documentation but did not identify what sections of that document she relied upon. She did not address what was alleged to have been said to Mr Williams and Mr Dicken despite identifying that she was being asked - 10 / 19 - to relay what had been said to them. I note that sub paragraph (p) cuts off after one word. The intervening paragraphs give considerable detail of a number of events, some of which date back to 6 August 2012, without identifying how those events related to what was being sought of her.36.2 Section 2(a). The claimant states that the nature of the disclosures were fully elaborated upon “… in a great number of communications, to include letters and emails spread over a wide period of time …” but did not state or cross reference what had been said or done by whom and on what dates. She did however state that she had explained in several communications from 6 December 2012 to 1 February 2016 (“and later communications”) that that was due to the nature of her healthcare problems which she stated included the inability to remember dates and where she had filed papers.36.3 Section 2(b). The claimant stated that her health and safety and that of others was effected but did not identify in which disclosures she had said that, or how that was linked.36.4 Section 8(d). As to the request that the claimant identify what the false information was provided about her to the disciplinary hearing the claimant referred to Andy knowing she had applied for PA roles as he and Dr Harding had interviewed her. Again that paragraph cut off ending “to be completed”. In my judgment it is not clear what was asserted to be the false information that was relayed to the disciplinary hearing and instead the claimant relayed what Andy knew.[37]I find the claimant failed in relation to each of those four heads to supply the detail that had been sought of her.[38]On 30 December at 12:59 the claimant requested that document be deleted because she was not aware time had been extended. A substantially longer (30 page) version of the email of 28 December was supplied at 00:01 on 4 January 2017 (although it was dated 3 January).[39]I find that was thus received one minute late. The Appeal Tribunal has confirmed on many occasions that Tribunal time limits are strict; a few seconds late is a few seconds late.[40]Notwithstanding that being lodged late I have considered the substance of the same:-40.1 Section 1(a)40.1.1 Claire Parker. The claimant asserted what was said was addressed in her earlier grievance. She stated this related to reporting difficulties concerning staffing levels, bullying and excessive workloads from 6 August 2012. I find the claimant did not state what precisely was said and when, or cross reference where this was set out in her grievance (and what she referred to as her grievance) or how she contends that amounted to a protected disclosure. Instead she went on to relay the basis of her complaints.40.1.2 Jon Dicken & Andy Williams. The claimant refers to a lift she received from Jon Dicken to Soho Road surgery on 28 November 2012 and a lift back the same day from Andy Williams (para. (n) page 26). She refers to - 11 / 19 - “cat fights” where managers ganged up on Celine. She then went on to say how “they” were bringing about health and safety incidents by their bad attitudes and failures to act. In my judgment the lack of clarity over what was said makes that at best an allegation and it is unclear how that related to the health and safety concerns.40.2 Section 2(a). Again the claimant asserted she had relayed what had been said “in a great number of communications” but I find she did not identify when these were or where what she relied upon was relayed. She did however refer to the nature of her health problems affecting her ability to remember dates and where she had filed papers and these related to all the s.43B(1) criteria save for the environment.40.3 Section 2(b). Rather than identifying by reference to her disclosures how she believed that an individual’s health and safety had been, was being or was likely to be endangered the claimant identified that managers did not commission anyone to carry out workforce planning and PDRs; in my judgment, she thus failed to relay how the health and safety dangers were linked to her disclosures as had been required of her.40.4 Section 2(b). The claimant’s response to this issue is by no means clear given the numbering she adopts but appears the detail she relays related to Andy knowing the claimant had applied for PA roles. In my judgment, she does not state what false information was relayed.[41]I find as to each head the claimant failed to provide the information sought of her.[42]The claimant again referred to her illness and that her husband had been hospitalised, essentially sought her recusal application should be addressed before the need for her to respond was addressed, again repeated that orders were imposed her as a customer of the tribunal and when her requests for disclosure and strike out had not been addressed and the respondents were asking for information that had previously been supplied. She then repeated her request for strike out on the basis the overriding objective required it (para. 8) addressed the Tribunal’s failure and in doing so relayed vexatious behaviours on the part of the respondent (at page 12 following).[43]On 10 January 2017, the respondent sought that the Tribunal confirm the claim had been struck out for non-compliance. The claimant responded at 15:44 that day and by a further email timed at 00:50 the following morning. In the former amongst other matters she referred to her concerns having been vindicated as evidenced by various press reports, her recusal request remaining outstanding, her claim not having been dealt with in accordance with Tribunal Rules that there had been major material irregularities which needed to be corrected without stating what these were or which rules had been breached, instead referring to the need to ensure the case was dealt with justly and fairly and in accordance with the interest of justice. She repeated her earlier assertion that her strike out request was outstanding since August 2016, her request for an “order” be placed on the respondents given they had not complied with their own constitution, that the request for the unless order was perverse, the one second delay was negligible and referring to how her state of health meant it was unfair to expect her to forward documents to the respondent. The second referred to the claimant’s complaints, asking for an outcome in relation to the recusal application and for the judiciary to advice on why there had been procedural irregularities regarding the running of her claim. - 12 / 19 -[44]On 11 January 2017, the respondent repeated its request stating amongst other matters the claimant had not explained why she was unable to comply. The claimant thereafter made complaints and a recusal application against Employment Judge Lloyd. They are not matters for me to address.[45]Also, that day the Tribunal informed the parties the file would be referred to REJ Findlay for further directions to include the respondent’s request for a declaration on the strike out issue and that little purpose would be served by further correspondence.[46]On 12 January at 11:16 the claimant emailed the tribunal amongst other matters correcting a date error in an earlier document without specifying what that document was, again questioning Employment Judge Lloyd’s decisions and identifying a number of typographical errors in earlier documents. She went on to refer to a blockage in my “Brian”, a heart attack and heart problems and high blood pressure. Later that day she sent a further 50 pages of documents as “a snapshot” why the respondent had lied not only to her but also investigators.[47]I do not propose to relay the extent of the correspondence thereafter in detail suffice to say that on 17 January the claimant wrote again to refer to health conditions and that it had been her intention to comply with orders. She again referred to her complaints about how she was treated and why the respondent provides a different account. On 24 January, the claimant stated that she had hoped due to an increase in medication she would have seen some improvement in her health but the medication was having little effect and so sought an extension to comply with any outstanding matters. She went on to state she was currently too ill to construct and engage in letter writing but annexed a further 50 pages or so of documents. On 3 February, she lodged a Schedule of loss and complained about the respondent’s conduct and the public funds wasted by it defending the claim.[48]On 24 February 2017 the claimant emailed the tribunal attaching a letter of 17 February 2017 from her GP which referred to her suffering a possible TIA earlier in the year, that further investigation had shown a blocked carotid artery that her physicians were attempting to control the high blood pressure but it remained very high and she had two hospital attendances and was regularly been seen by her GP. Her GP supported her request for the hearing to be delayed or “slowed” until her condition has improved.[49]On 28 February the respondent acknowledged that whilst the parties had been asked not to correspond with the tribunal the claimant continued to do so, objected to further postponement on the ground it was already unclear if a fair trial were possible given the lapse of time since the vents in question, referred to the claimants’ failure to supply medical evidence to support the contentions as to her ill health and disputed that the GP letter of 17 February 2017 assisted in that regard, that the claimant had made detailed 3 requests for statutory information on 3, 9 and 23 February exceeding 6 pages in length that it was dealing with and seeking clarification on orders for disclosure.[50]The claimant thereafter lodged a number of letters repeating the assertions and applications she has made previously, as well as enquiring in relation to judicial mediation, and when disclosure and witness statements were required to be exchanged position amongst other matters. On 16 March the respondent repeated its application seeking confirmation the claim was struck out and seeking a preliminary hearing. Further, correspondence ensued from the claimant thereafter. - 13 / 19 -
THE RELEVANT LAW
[51]“Unless orders”, were introduced in the Employment Tribunal via rule 13 of the 2004 Tribunal Rules of Procedure 2004. Rule 13 (2) provided that: “An order may also provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of noncompliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or Hearing.”[52]The 2004 Rules were superseded by the Employment Tribunals Rules of Procedure 2013 which now provide (so far as is relevant):. “Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. Unless orders 38 (1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations. (3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.”[53]Under the 2004 Rules there was power for a Tribunal to review a judgment, but not an order. Both the 2004 and 2013 Rules make a distinction between a judgment and an order (rr.28 and 1(3) respectively). The power to review under the 2004 Rules has been replaced in the 2013 Rules by a power to reconsider. That power too applies to judgments but not to orders. Under the 2004 Rules when made, an unless order was not - 14 / 19 - susceptible to review. However, where upon non-compliance with it a claim has been struck out, that is a final determination of the proceedings, and therefore a judgment and capable of being reviewed: Uyanwa-Odu v Schools Offices Services Limited UKEAT/0294/05. The 2013 Tribunal Rules make express provision at r.38 (2) for a party whose claim or response is dismissed to apply for the order to be set aside.[54]In Singh v Singh (The Guru Nanak Gurdwara West Bromwich) [2016] UKEAT 0158/16 HHJ Eady set out the basis upon which this should be approached. “18. I have previously had to consider the approach the EAT should adopt when hearing appeals relating to ET decisions under Rule 38(2), in Morgan Motor Company Ltd v Morgan UKEAT/0128/15/DM. The obvious starting point is to note that the ET is bound to determine such applications on the basis of what it considers to be in the interests of justice. The determination of that question necessarily requires that the ET exercise its judgment, and it must do so rationally, not capriciously, and reach its decision in accordance with the purpose of the relevant legislation, taking into account all relevant factors and avoiding irrelevant factors (Transport for London v O'Cathail [2013] ICR 614 CA and Neary v Governing Body of St Albans Girls School [2010] IRLR 124 CA). Provided the ET's decision meets these requirements, it is not for an appellate court to re-hear a case or, absent an error of law, interfere with an ET's exercise of judicial discretion in this regard (see Neary and paragraph 2 of Harris v Academies Enterprise Trust [2015] IRLR 208 EAT). 19. As for what an ET has to take into account, that will depend upon the particular circumstances of the case. The fact that an Unless Order has been made will be one factor but is not determinative. Indeed, it cannot be said that any one factor will be necessarily determinative of the course an ET should take (Thind v Salvesen Logistics Ltd UKEAT/ 0487/09/DA). What is required is a broad assessment of what is in the interests of justice in the particular case under consideration (Thind), which will inevitably involve a balancing exercise on the part of the ET, as should be apparent from its reasoned Judgment (see BBC v Roden UKEAT/0385/14/DA at paragraph 39).”[55]In Morgan Motor Company Ltd v Morgan UKEAT/0128/15 the EAT stated the material factors to be weighed will vary considerably, albeit that they would generally include:-55.1 the reason for the default and whether it was deliberate [and no doubt whether the default was caused by the party of his legal representative],55.2 the prejudice to the other party,55.3 whether a fair trial remained possible, and when considering that question the ET should consider whether that should be assessed as at the date of the relief from sanction application rather than the date on which the sanction was applied.55.4 if an unless order had been made that was also said to be an important consideration (as was the policy objective behind unless orders) but that would only be one such consideration,55.5 the importance of finality in litigation, and - 15 / 19 -55.6 when considering if alternative sanctions were appropriate the ET would need to take account of whether such an award should be made whether or not relief from sanction was granted. As the EAT emphasised in both Thind and Morgan the relevant factors will vary from case to case. Other factors mentioned in the previous version of CPR and not referred to in these cases, and which an ET might also consider relevant, are:55.7 Whether the application for relief was made promptly; and55.8 the extent to which the party in default has complied with other rules, practice directions, orders and any relevant pre-action protocol.[56]In Singh v Singh (The Guru Nanak Gurdwara West Bromwich) the Tribunal had determined the Unless Order had been properly made and that the requirement was necessary and that the Claimant was in breach of the Unless Order, the ET considered such explanation as had been provided but found it was neither plausible nor satisfactory. It then went on to consider if a fair trial was still possible and accepted that was so in terms of availability and continuing reliability of evidence. The ET turned to consider that question in a broader sense having identified that a fair trial must mean trial(a) within a reasonable period of time,(b) with reasonable and proportionate preparatory work on both sides, and(c) commitment of a reasonable and proportionate share of judicial and administrative resources by the ET, the ET questioned whether it could have confidence that a fair trial was still possible in terms of meeting those requirements given the Unless Order had still not been complied with and there was no satisfactory and credible explanation for non-compliance. The ET also took into account the possibility of an award of costs as an alternative sanction, the history of the proceedings more broadly, the application for relief from sanction had been made promptly, and the ET had not found the Claimant specifically at fault in respect of earlier Orders, save for one Order regarding witness statements, which had of course led to the Unless Order. Ultimately, however, the ET considered that it must have regard to public policy concerns: triable cases must be brought to a hearing if possible and in a proportionate manner; taking all factors into account, the ET did not consider that it should grant the relief sought.[57]As to the public policy concerns HHJ Eady QC referred in Morgan to the Supreme Court in HRH Prince Al Saud v Apex Global Management [2014] 1 WLR 4495 (the Global Torch) where policy objectives behind the enforcement of sanctions was emphasised at [23]. Whilst she noted that the Global Torch concerned the CPR, which do not directly apply in the ET, the approach to relief from sanctions is likely to give rise to very similar considerations.[58]In Aslam v Travelex UK Ltd [2015] UKEAT/0028/15 HHJ Richardson having cited the quote of Smith LJ in Neary at paragraph 56 above, placed compliance with Unless Orders in context:- “28. … It is important not to treat a Tribunal’s warning letter under Rule 40 as equivalent to an unless order. An unless order follows breach of an existing order of the Employment Tribunal. Failure to comply with an unless order therefore generally involves a failure to comply with two specific Tribunal orders. These are matters of considerable weight in any balancing exercise. In a case under Rule 40 there may be no breach of any existing order. The deadlines given, both in a notice to pay and in a Rule 40 warning letter, are short. While - 16 / 19 - the Rule 40 letter is a trigger to the operation of dismissal under Rule 40, failure to comply with it does not carry the same degree of weight as failure to comply with an unless order.” MY FINDINGS AND CONCLUSIONS Was the Unless Order complied with?[59]I found for the reasons I relay above that the claimant’s emails of 28 December 2016 and that timed at 00:01 on 4 January 2017 failed to provide the information required by the unless order. The latter was also late and time limits are strict.[60]The claimant has repeatedly referred to the information sought in the unless order having been supplied previously. If that was so she should have been able to identify where that was, the Tribunal could have then clarified if the information supplied had addressed the issue. So far as I can discern from an extensive consideration of the file she has not. The claimant’s failure to point the tribunal to where the information has been supplied is a matter I will need to consider in relation to the application for relief from sanctions as it appears to me she argues medical grounds underlie that. I address that below.[61]Accordingly, in my judgment the claimant failed to comply with the unless order issued on 22 December 2016 by Employment Judge Lloyd (as varied by Employment Judge Hughes on 23 December 2016) and her claim was a struck out on 3 January 2017. Should the claimant be granted relief from sanctions?[62]The claimant’s application for relief from sanctions (and if appropriate the respondent’s application dated 16 March 2017 for strike out of the claimant’s claim based on the unreasonable conduct of the litigation) shall be listed for a hearing before me. In advance of the same each party shall serve upon the other (but not the tribunal) by no later than 19 May 2017 all documents they wish to rely upon in a paginated bundle. The respondent shall prepare a paginated bundle including that documentation and serve the same upon the claimant by no later than 26 May 2017. Further the respondent shall bring three copies of the bundle to the hearing.[63]As I indicated above the only claims that fall for consideration by me are the claims pursuant to s.98(4) and s.103A, the reconsideration requests in relation to the other complaints having been refused. Several ancillary matters will arise from that that I shall need to address if I find in the claimant’s favour, these include various applications the claimant refers to as not having been addressed and case management generally[64]From the outset of the claim the claimant has stated that she is unwell. That has an impact on whether the breach is deliberate. I record at (11) that the undated letter from the claimant’s GP lodged in support of her application for a postponement of the Interim Relief hearing on the basis the claimant health was not up to attending, was unspecific; her GP stating, “I support her. I would be grateful if this could be considered and she could be helped in any way”.[65]It was subsequently recorded in the order on the hearing on 25 August 2016 (see (26)) that it was agreed by the claimant’s counsel, Dr Ahmad, that there was to be the presumption of the claimant’s fitness (see paragraph 7 of that order) on the basis that “no relevant evidence had been produced by the claimant and the three questions have - 17 / 19 - not been addressed at all. The letter from Dr Pavir Sharma dated 2 August 2016 addressed to the claimant’s GP is wholly inadequate to meet paragraph 1.1 (a) and (b).”.[66]However, in a letter dated 2 August 2016 from Dr Sharma, a consultant in Psychiatry, to the claimant’s GP, Dr Sharma recorded that in his view the claimant was of low mood which was likely to have resulted from stress at work (although he noted she was unable to give a coherent account of her trouble at her workplace). He recorded amongst other matters that on several occasions she had demonstrated poor planning and judgment, had for instance left food in the frying pan, that she was unkempt and a little muddled, seemed to be worried about her memory and ability to do things as efficiently as before. He stated she had told him she had started to believe she was being watched by her employer and had carried all her paperwork relating to her grievance around with her prior to her dismissal.[67]Dr Sharma increased the claimant’s prescription of Sertraline to 100mg from 50mg and referred her for an MRI scan. He stated he did not consider she was fit to attend tribunal hearings until she recovered from her depression but that a diagnosis of dementia will have more long standing implications on her ability. He indicated he would see her again in 8 weeks as by that time he would have had the result of the MRI scan.[68]Subsequent to that hearing the claimant in a document dated 23 September 2016 (see (29)) provided very detailed information. Whilst the claimant continues to refer to her ill health I have not been provided with that update. All I have is the subsequent letter from her GP. I am not told why that is so.[69]If the claimant intends to rely upon any medical evidence at the relief from sanctions hearing ideally that should be from her consultant and should address the following matters:-69.1 The nature of any impairments or conditions from which the claimant suffers or has suffered from 5 April 2016 onwards, the cause of the same, when that condition (and if different) the cause was diagnosed.69.2 Any symptoms or medication that might effect the ability of the claimant to respond to the requests made, to personally conduct the litigation, and to represent and attend any hearing, and if so the effects on the same.69.3 Was the claimant’s state of health was such that from 5 April 2016 onwards she was able to provide the information sought at paragraphs 1(a), 2(a), 2(b) and 8(d) of the request for further and better particulars (again see (30) and (32) above)?69.4 If that was not so, when was that not possible and why not?69.5 If the claimant’s state of health such that from 5 April 2016 onwards she was able to personally conduct the litigation as described herein?69.6 If that was not so, when was that not possible and why not? If it is not possible for her to do so currently, if it is likely (on the balance of probabilities) that she will be able to do so at a future point, when that will be?69.7 Is the claimant’s health such that she is currently able to attend, conduct and give evidence at what is likely to be a hearing lasting several days at least at which she will be expected to cross examine (ask questions) of witness on relevant disputed matters for possibly several hours (usually with a short break each - 18 / 19 - hour), be cross examined herself for possibly a day or more (again usually with a short break each hour) and summarise her case at the conclusion? 69.7.1 If so, why not, and if it is not possible for her to do so currently, is it is likely (on the balance of probabilities) that she will be able to do so at a future point, and if so when that will be? If it is possible for her to do so currently, what adjustments that could be made to allow that to be done?69.8 If it is not possible to provide an answer at this time to the above questions, what is the likelihood an answer will be able to be provided at a future point and when that will be?[70]In the event the medical evidence makes clear the claimant is not fit to attend that hearing I will consider accepting written submissions.
THE RELEVANT LAW
[1]The background to how this hearing arose is principally set out in my decision of 4 May 2017 (the Compliance Decision) in which I addressed whether there had been material non-compliance with an unless order issued on 22 December 2016 by Employment Judge Lloyd and was varied by Employment Judge Hughes (the Unless Order) and if the notice required by r. 38(1) should be given.[2]Within the Compliance Decision I indicated I intended to treat the correspondence lodged by the claimant as an application for relief from sanctions (the Relief Application) and listed it for a hearing on 1 June 2017. Given the claimant in correspondence from the outset of the claim had referred to her state of health I indicated in the Compliance Decision [64] that if she intended to rely upon any medical evidence at the relief from sanctions hearing ideally that should be from her consultant I gave detailed guidance what that should address (see [Compliance Decision/69]). I sought to follow the guidance concerning applications for adjournments on medical grounds in Teinaz v London Borough of Wandsworth [2002] IRLR 721( CA), Andreou v Lord Chancellor’s Department [2002] 728 CA and Pye v Queen Mary University of London [2012] UKEAT 0374/11 and the cases that follow.[3]On 25 May 2017 the claimant wrote to the tribunal [620g-h] indicating that she could not obtain a GP appointment until 7 June 2017. Acting Regional Employment Judge (AREJ) Findlay postponed the hearing listed for 1 June 2017 so the claimant could “obtain any medical evidence she seeks to rely upon” [620aaa(1)] [ 1 / 13 ][4]On 17 May 2017 [617-620] the claimant sought that I recuse myself and also that I reconsider the Compliance Decision. That was referred to me at the start of June 2017 by which time the tribunal also received a number of letters between 16 May and 1 June 2017. I addressed all those issues on 5 June 2017 [620aaa(8)].[5]On 12 and 21 June 2017 the claimant sought answers to a number of questions she posed, and a stay so that outstanding requests for information she had sought could be dealt with and an investigation into matters be completed. I addressed those matters on 22 June 2017; the application for stay was refused [620ccc(10)-(11)].[6]The claimant did not attend today. By an email timed at 18:02 on 27 June 2017 (yesterday) the claimant complained that the tribunal had failed to contact her GP in ascertain her state of health. As I state above it I made clear in the Compliance Decision that if the claimant wished to rely upon medical evidence it is for her to provide that information. The tribunal is an independent judicial body. It is for the parties to bring forward evidence on which they wish to rely, not for the tribunal to seek it out of its volition. That fundamental principle aside, the claimant’s medical advisors are subject to patient confidentiality and thus cannot merely correspond with the tribunal without her say so. Thus, even if the tribunal were minded or able to make such requests direct to her medical advisors, her medical advisors would need to seek her approval to respond each time a request was made. She would thus need to be involved at each request. Given the claimant is in any event aware of the detail that would be needed, I set that out at length in the Compliance Decision, that merely duplicates work and causes delay. It is thus unjustified.[7]In her email of 11:02 today (received after the hearing was due to commence) the claimant indicated she could not attend the hearing due to “blood test and ill health (I supplied information to this effect to the tribunal – see email of 27 June 2017).”[8]I checked her email of 27 June and whilst it attached a number of notices of hospital appointments none related to an appointment today. Nor do the attachments address the information required in [Compliance Decision/69]. If that blood test was prearranged the first notice that I can discern the tribunal or respondent has had of that is her email timed at 11:02 today.[9]I heard from Ms Criddle. She objected to the way the claimant had conducted matters by making this application so late and without the supporting documentation that I refer to above. She referred to the cost and prejudice caused to the respondent. She told me the claimant had articulated her case at length in her email of yesterday and thus I should accept that as her written submissions (I had indicated in the Compliance Decision [70] that if the event the medical evidence made clear the claimant was not fit to attend that I would consider accepting written submissions).[10]I determined to accept the two emails I refer to above and a subsequent email I refer to below as written submissions from the claimant and that in the absence of written evidence from her medical advisors of a medical appointment, or evidence of her unfitness to attend, given the lateness of the application, the costs the respondent would be put to, the waste of tribunal time and that the claimant had sent lengthy submissions in writing (having been aware for some time of the issues that would be addressed today) that it was in the interests of justice for me to proceed with the hearing today.[11]For completeness sake the final email I refer to above that was received from the claimant was timed at 11:58 today. That principally concerned anomalies in the timings of earlier emails from the tribunal – a reference to a matter the claimant has previously raised concerning the marginal lateness of her 30 page email timed at 00:01 on 4 January 2017 (albeit dated 3 January 2017). Whilst I found in the Compliance Decision that was received one minute late, despite that I considered the [ 2 / 13 ] substance of the response and determined that the information supplied did not comply with what was sought by the Unless Order. The claimant appears to focus on my determination it was late rather than the fact it omitted the substantive information required and that she has still failed to do so.[12]Ms Criddle has provided a skeleton [S] of some 17 pages which I read during a break I took so she could consider the various emails from the claimant. Ms Criddle’s skeleton relays further an extensive history of events at [S/9-58][13]In her skeleton argument Ms Criddle states I have set out the relevant law as to the Relief Application in the Compliance Decision [51-58]. That being accepted I will not repeat that here.[14]The respondent pursues an alternative application for strike out (the Strike Out Application) that was first made on 16 March 2017 [565-570]. Ms Criddle asks me to address the Strike Out Application irrespective of my decision in relation to the Relief Application. She also sought written reasons for my decision and that I record that it reserves its position in relation to further applications.[15]As to the Strike Out Application she refers me to one case Hylton v Royal Mail Group UKEAT/0369/14 as a reminder that the burden was on the claimant to provide evidence if medical reasons were the reason why she had not complied to date and clear evidence that there was a real chance that she would be fit enough to attend the hearing [24] but also :- “21 …. Where accusations have been made on a http://www.bailii.org/cgibin/format.cgi?doc=/uk/cases/UKEAT/2015/0369_14_2402.html&query=%28 Hylton%29+AND+%28v%29+AND+%28Royal%29+AND+%28Mail%29+AND +%28Group%29 - disp17veryhttp://www.bailii.org/cgibin/format.cgi?doc=/uk/cases/UKEAT/2015/0369_14_2402.html&query=%28 Hylton%29+AND+%28v%29+AND+%28Royal%29+AND+%28Mail%29+AND +%28Group%29 - disp19 generalised basis, as here, clarity of the accusation is needed. The Respondent is entitled to know what acts it is being accused of, and the Tribunal cannot adjudicate properly unless that is the case. Unless and until that is done, it is difficult if not impossible to have a fair trial. As observed in Johnson http://www.bailii.org/cgibin/format.cgi?doc=/uk/cases/UKEAT/2015/0369_14_2402.html&query=%28 Hylton%29+AND+%28v%29+AND+%28Royal%29+AND+%28Mail%29+AND +%28Group%29 - disp18vhttp://www.bailii.org/cgibin/format.cgi?doc=/uk/cases/UKEAT/2015/0369_14_2402.html&query=%28 Hylton%29+AND+%28v%29+AND+%28Royal%29+AND+%28Mail%29+AND +%28Group%29 - disp20 Oldham [UKEAT/0095/13], parties are entitled to know the case against them.[22]It must usually be the case that, where a claim has been struck out because of a failure to provide such information but by the time of an application for relief the information has been supplied, a court will grant relief. The purpose of the orders would have been achieved. Again, as observed in Johnson, the approach should be facilitative rather than penal. That cannot, however, apply where there has been no compliance even at the stage of seeking relief from the order which was made. Orders are made to be observed. As was said by Underhill J (as he was) in the case of Thind http://www.bailii.org/cgibin/format.cgi?doc=/uk/cases/UKEAT/2015/0369_14_2402.html&query=%28 Hylton%29+AND+%28v%29+AND+%28Royal%29+AND+%28Mail%29+AND +%28Group%29 - disp19v Salvesen Logistics Ltd [2010] UKEAT/0487/09, every case turns on its own facts, and it should not be thought to be usual that relief will be granted from the effect of an unless order (paragraph 36): [ 3 / 13 ] “… Provided that the order itself has been appropriately made, there is an important interest in employment tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible. …” 16 I had before me a bundle running to 739 pages across two lever arch files. That essentially relates to the correspondence common to both parties. The respondent tells me it sought to provide those bundles to the claimant in advance of today but she has refused to accept the same. I do not need to make a determination on that issue as the only documents I was referred to in the bundle were the common correspondence and thus the claimant has had sight of the same. RELIEF FROM SANCTIONS 17 I identified in the Compliance Decision [55] six factors from Morgan Motor Company Ltd v Morgan UKEAT/0128/15 and a further two from the old version of CPR3.9 that the tribunal will generally need to address when considering an application for relief from sanctions. As I state at [54] the Tribunal must take into account all relevant factors and avoid irrelevant factors, thus the material factors to be weighed will vary considerably from case to case. Ms Criddle agreed with that approach and addressed me in turn on those factors. I start by addressing those factors but not in the same order, for reasons that will hopefully be clear. 18 Is a fair trial possible?18.1 When considering this question the tribunal normally also needs to consider if that question should be determined as at the date of the relief from sanctions application or the date on which the sanction was applied. I found in the Compliance Decision that that the information required to be provided in the Unless Order had not been provided by the date required by the amended Unless Order, as extended. I further found, that the information supplied after the time set by the Unless Order (as amended) had expired did not. I set out my reasons why not at [Compliance Decision/36 & 40]. The detail that I decided was lacking has still not been provided as at today.18.2 At the heart of the difficulty is that whilst the claimant identified in her claim form and the additional document supplied following a telephone call to the tribunal office on 6 April 2016, a number of claims including “whistleblowing" and “bullying, harassment, discrimination and victimisation”, the claim form does not set out what was said or done by whom and on what dates such that the tribunal and respondent could identify clearly the claims that were being made and how they were put. Similarly, in the additional document submitted by the claimant she makes a number, of what again are general assertions, “Lots of irregularities …”, “Whistleblowing. Failed to investigate my concerns or respondent to my concerns …. Lots of irregularities and cover-up”, “Bullying and Harassment – oppressive managers, no measures in place to show meeting Public Sector Equality Duty, Equality Act 2010 …” without stating what it was that was said or done by whom and on what dates. It is the duty of the claimant to set out his or her case and it is not for the Tribunal or Respondent to have make assumptions about the case to identify what it is about.18.3 At the hearing on 25 August 2016 the claimant was represented by counsel, Dr Ahmad, he agreed on her behalf to an order in the wider terms originally sought by the respondent on 17 May 2016. The claimant did not comply in full. By the time that non-compliance came to be considered the claimant had ceased to instruct him. The terms of the order for further and better particulars of 22 November 2016 that gave rise to the Unless Order were simplified and [ 4 / 13 ] limited to the information sought at paragraphs 1(a), 2(a) and (b) and 8(d) of the “Respondent’s List of Issues”.18.4 For the reasons given in the Compliance Decision, in my judgment that information was relevant and necessary to allow a fair trial to take place; paragraphs 1(a), and 2(a) and (b) were relevant to whether a disclosure was made and if it was capable of being a qualifying and protected disclosure. Following the amendments made by the Enterprise and Regulatory Reform Act 2013 (ERR) the law differs between disclosures made on or after 25 June 2013 and those before that date. It is thus critical to identify the dates of the alleged disclosures and what was said or done and to whom. The dates and what was said were not identified by the claimant with the necessary detail to enable the respondent and tribunal to identify the statutory regime that applied.18.5 Head 8(d) related to the unfair dismissal complaint; namely false information was provided to the disciplinary hearing about the claimant. Given the allegation relates to an assertion of a falsehood that goes to both the substance and fairness of both unfair dismissal complaints (s.98(4) and s.103A), potentially also credibility. That information again is thus necessary for a fair trial. The claimant does not address what the false information that was alleged to have been provided in relation to the unfair dismissal claim even if the additional information I refer to at [Compliance Decision/40.4] is taken into account.18.6 Despite my having identified in the Compliance Decision that the information sought at paragraphs 1(a), 2(a) and (b) and 8(d) had not been provided and what was omitted, the claimant has failed to remedy that omission. I address her reasons why below. Without the information required by paragraphs 1(a), 2(a) and (b) and 8(d) being provided, in my judgment and for those reasons, a fair trial is not possible. 19 The reason for the default and whether it was deliberate19.1 The claimant acts in person and thus it is not argued that her failure to comply is the fault of a representative. I return to the effect her acting in person has on the issue of relief below.19.2 Ms Criddle argues that not only did the claimant fail to comply, but that her failure was deliberate. I sought to clarify if Ms Criddle asserted it was a conscious decision on the claimant’s behalf not to comply or if in the alternative she asserted that the claimant had not complied in full knowledge of what was required and the time limit for doing so. Ms Criddle confirmed me that she did not seek to assert the former but instead adopted the latter.19.3 In my judgment, the claimant was or ought reasonably to have aware of what was required of her. She has engaged in a debate at various points over what the contents of paragraphs 1(a), 2(a) and (b) and 8(d) required and if she had complied. Even if she was unclear prior to my Compliance Decision, in my judgment my Compliance Decision set out what had been omitted and why. If that was not so, the claimant has not sought so far as I can identify in the correspondence clarity on what she omitted to provide. If she was unclear she could and should have done so.19.4 Whilst the claimant has in correspondence made a number of general assertions stating that she has complied previously she does not refer specifically to the documents and where in each she has supplied the information sought. Whilst it is reasonable to expect a party to identify where [ 5 / 13 ] information has been provided if there is an issue if it has or not, that is not necessary if it is clear on the face of a document the information has been provided. That is not the case here. In my judgment the tribunal and other party should not be expected to have to search across a large file when the documents in which the information is alleged to have been provided are not clearly identified. When, specific details are required, as here, it is for the person that is required to provide the information to do so clearly and unambiguously. General assertions will not suffice.19.5 In my judgment the claimant knew or ought reasonably to have known what the request for Further and Better Particulars and Unless Order required and the time limit for doing so and she failed to provide that information.19.6 The claimant appears to suggest that because of her health the claim should be stayed, during the stay disclosure can be conducted, she should be given access to the respondent’s computer system or at least her personal files and NHS email account, she will then be in a position to provide the information sought and the claim can then proceed. I address that below. 20 The prejudice between the parties.20.1 An unless order is a Draconian sanction; if the claimant does not comply and her claim is struck out she will be deprived of her right to pursue her complaints against the respondent. As part of this decision I therefore must weigh the prejudice to the claimant against that to the respondent.20.2 Ms Criddle asserts the claim has been ongoing for a year, relates to matters dating back as far as August 2012 (almost 5 years) and thus the cogency of evidence will be diminished by the delay in this claim coming to trial.20.3 As yet the claim is still far from trial; Ms Criddle repeats the respondent’s assertion that the claimant’s failure to date to provide the required detail of the disclosures means it still does not know the case it has to meet and thus it cannot prepare its case properly. Further, there is no prospect of that information being provided and thus no prospect of the claim being triable in the foreseeable future.20.4 Given my finding above that a fair trial is not currently possible in my judgment the prejudice to the respondent is substantial and that will increase because memories of events are bound to fade as time passes.20.5 Ms Criddle also points me to the prejudice arising from the way the claim has been pursued by the claimant resulting in a disproportionate level of correspondence on this file. The tribunal file has some 300 plus items of correspondence, referrals and instructions. Many run to multiple pages That is shown by the size of the bundle for this hearing which for the most part only includes pleadings, orders, inter parties correspondence and correspondence between the parties and the tribunal, and yet which fills two lever arch files. The claim has not, as yet, reached disclosure. Despite that Ms Criddle points out the respondent has incurred substantial legal costs; excluding VAT I am told they are £80,000. 21 The policy objective behind unless orders. The importance of finality in litigation. The extent to which the party in default has complied with rules, orders etc.21.1 I turn to these matters together because the first two of these three heads were addressed at the same time by Ms Criddle and in so doing she also [ 6 / 13 ] dealt with the third. She argues multiple orders dating back to the outset of the case that claimant has not complied with or has complied late:-21.1.1 The order of EJ Lloyd of 5 July 2016 concerning the provision of medical evidence by the claimant [Compliance Decision/23]21.1.2 The particulars provided by the claimant on 23 September 2016 did not fully address what had been required by the order of 25 August 2016 and was complied with late. Ms Criddle asserts that should properly have been the subject of an application for relief from sanctions yet EJ Lloyd waived the slight delay having concluded it was in the interests of justice to do so.21.1.3 The orders of 25 August 2016, 29 November 2016 (which gave rise to the Unless Order) and the Unless Order of 22 December 2016.21.1.4 Despite my making clear in the Compliance Decision that any application to refer to the claimant’s medical condition needed to be supported by medical evidence the claimant continues to refer to the same without providing that evidence (despite the claimant having been treated by AREJ Findlay as having sought an adjournment to enable her GP for that purpose)21.2 Ms Criddle stated the information that was sought of the claimant in the Unless Order was first canvassed at the Interim Relief Hearing on 16 May 2016 and thus the claimant has been aware of what has been sought for over a year and yet it has still not been provided.21.3 I accept that there has been not merely a failure by the claimant to adhere with one order but several and that that non-compliance has continued over an extensive period. That breach is compounded because in relation to (21.1.4) the claimant in my judgment understood or ought reasonably to have understood that medical evidence was required of her. She sought time to provide it. In my judgment she knew or ought reasonably to have known what was expected of her and yet in my view has not complied with the tribunal’s direction. 22 The availability of alternative sanctions.22.1 The tribunal must approach this area with some care as is shown by Morgan Motor Company Limited v Morgan UKEAT/0128/15. There the ET had taken into account that a costs order could be made. On appeal the EAT cautioned that such an order could be sought by the other party regardless of the outcome of the relief application, and given the balancing exercise included factors that were irrelevant the ET’s conclusion was unsafe, and was remitted for consideration afresh. 22.1 Ms Criddle states there are no alternative sanctions available here because a fair trial is not possible for the reasons I summarise at (18) above. She reminds me of the claimant’s noncompliance with the orders I refer to at (21). The respondent suggests that none compliance was blatant. Whether that is blatant or not I need to consider if an effective sanction is available which goes hand in hand with compliance.22.2 The claimant appears to suggest that because of her health, the claim should be stayed, during the stay disclosure can be conducted, she should be given access to the respondent’s computer system or at least her personal files and NHS email account, she will then be in a position to provide the information sought and the claim can then proceed. [ 7 / 13 ]22.3 Whilst that method is undoubtedly a way forward it does not include a sanction or means of enforcement. As Ms Criddle points out the claimant has not complied with the existing order, and has not attempted to do so following the omissions having been identified by me in detail in the Compliance Decision.22.4 As I state above at the hearing on 25 August 2016 it was accepted on the claimant’s behalf that the claimant needed to supply more detail to the respondent. None of the practical requirements that she now attaches were imposed on the provision of that information. Ms Criddle asserts that it was not until September 2016 the claimant first suggested access to her NHS email account and personal files etc. was required. At the 25 August 2016 hearing the claimant was represented by counsel and thus had access to legal advice. Had the requirements she now identifies been an issue for her then she could and should have raised them at that time. She did not so far as I can discern.22.5 Nor does the claimant adequately address in the extensive correspondence she has engaged in, where she identified that or why the position is different so that she now needs that access.22.6 In my judgment, there is a further problem with that course, despite the order of EJ Lloyd of 5 July 2016 and my Compliance Decision [69] the claimant has not provided medical evidence of her fitness. In my order I specifically sought the detail I did to enable a view to be taken if the claimant was not fit, when she was likely to be so, if at all. That evidence is not before me. Thus, if I accept the premise on which the claimant’s suggested way forward is based, (namely that she is not fit) there is no evidence before me when she is likely to be fit if at all and how long this litigation will continue for.22.7 The claimant’s suggested way forward fails in my judgment to address the further delay and the prejudice to cogency that gives rise to that I refer to above (19.3). Further, that alternative way forward provides no sanction or means of ensuring compliance by the claimant, and given the claimant’s failure to comply with orders to date I conclude there is no prospect of the information required by the unless order being provided by the claimant.[23]Whether the application for relief was made promptly. 23.1 An application is required to be made state within 14 days of the notification being sent (r. 38(2)). Whilst an application was not expressly made Ms Criddle accepted that an application was implied from the correspondence from the claimant and the implied application was made promptly.[24]Other. In addition to those matters the following points either directly or indirectly also arise:-24.1 The reasonableness of the claimant’s conduct.24.1.1 The claimant in correspondence continues to argue that the respondent should not have been granted an extension of time to lodge its response and/or the response having been lodged late it should be struck out and judgment entered in her favour. Similarly, she argues the refusal of her application for interim relief was wrong, latterly seeks to argue that hearing was improperly constituted and was thus null and void and her claims other that those pursuant to ss.94-98 and s.103A ERA should not have been struck out. [ 8 / 13 ]24.1.2 On presentation, the tribunal file records on the notice of claim (being made against it) the respondent was given until 17 May 2017 to lodge its response. The day before the response was due the interim relief hearing was heard. Ms Criddle told me she was instructed to make an application for an extension of time at that hearing because the claim needed particularising. She told me she made the application orally. As counsel, she is an officer of the court. I would on that basis alone accept that was done. Having checked EJ Lloyd’s note of the hearing he appears to record that application was made. That reinforces Ms Criddle’s account that that application was made.24.1.3 There was a fire alarm during that hearing after which the claimant did not feel able to attend the reconvened hearing. I can understand therefore that EJ Lloyd did not address the application in his order. I find however it had been made.24.1.4 Irrespective of those matter in any event that extension application was repeated in writing alongside the application for particularisation the following day, 17 May 2016 [40]. The written request for an extension of time was thus made before time expired (pursuant to r.20) and thus r. 18(1) - rejection of late responses is not engaged.24.1.5 The application for an extension was only addressed for a variety of reasons by EJ Lloyd on 25 August 2016. He granted the application and time was extended to 20 October 2016, 28 days after the claimant had been ordered to file particulars of her claims. The respondent lodged its response on 20 October 2016 but asserted certain particulars had not been provided.24.1.6 In my judgment, it was lodged in time and thus it was correctly accepted. Despite that the claimant has consistently sought to assert that the tribunal should not have accepted the response.24.1.7 The respondent refers to the claimant’s continued references to that issue as an example of her persisting to repeat applications that have been addressed as one example of many by the claimant of unreasonable conduct.24.1.8 Another example relied upon is the claimant seeking to argue the Interim Relief Hearing was void. Similarly, as to the argument the claimant subsequently raised in relation to the dismissal of her claims other than the two forms of unfair dismissal (ss.98(4) and 103A ERA) on the basis she did not early conciliate via ACAS. The claimant argues the failure to address Early Conciliation was not explained to her yet having considered EJ Lloyd’s note it suggests discussion took place and the order suggests that was agreed by counsel.24.1.9 Those examples suggest in my view that having reflected on events the claimant appears to have a different view in hindsight of matters to that which she had at the time.24.1.10 Whilst viewed in isolation explanations might account for the same collectively in my judgment they constitute unreasonable conduct on the claimant’s part because by repeatedly pursuing those issues has substantially increased the time this claim has required.24.1.11 Other examples the respondent relies upon include the claimant apparently seeking the hearing listed on 1 June 2017 be postponed on the basis she had left the 5 to 9 June 2017 free for the final [ 9 / 13 ] hearing albeit at the same time she referred to being placed under “house arrest” [620b of 18 May 2017], the claimant’s freedom of information and subject access requests [666-669], the claimant insisting on liaising with the CCG and CSU despite being told that any correspondence was to be with their solicitors, chasing responses before the time for response had been provided and making repeated requests for subject data when this has been provided and other requests that the respondent considers vexatious.24.1.12 There is no evidence (in the form of witness statements introducing the matters at (24.1.11) into evidence) and the witnesses not having been called there is no evidence before me to enable me to make findings on those matters24.2 The impact on the tribunal’s resources24.2.1 I indicated in the Compliance Decision [56] by reference to Singh that the overriding objective of dealing with a case justly includes having regard to the impact of it on the resources of tribunals. That is to ensure that one case does not does not exhaust a disproportionate share of them, and so deprive other cases of time, or delay the start of them, per Smith LJ in Neary:- “64. … The overriding objective requires that the management of the case should result in the case being dealt with justly as between both parties. It also requires the judge to consider the appropriate use of the resources of the court or tribunal. It is entirely within the overriding objective for a judge to take the view that enough is enough. That stage will more readily be reached in a case of deliberate and persistent failure to comply than one where there is some excuse for it. …”24.2.2 That point was repeated by Langstaff P in Harris v Academies Enterprise Trust UKEAT/0102/14, [2015] ICR 617, [2015] IRLR 208:- “33. … justice is not simply a question of the court reaching a decision that may be fair as between the parties in sense of fairly resolving the issues; it also involves delivering justice within a reasonable time. Indeed, that is guaranteed by Article 6 of the [ECHR]. It must also have regard to cost. Even if the Employment Tribunal is not in the same position as the civil courts because there is no cost-shifting regime, it was designed as a cost-free forum in so far as party-and-party costs were concerned. That is true of most Tribunals; it is a particular feature of most Tribunals. I would accept, too, that overall justice means that each case should be dealt with in a way that ensures that other cases are not deprived of their own fair share of the resources of the court. If a case drags on for weeks, the consequence is that other cases, which also deserve to be heard quickly and without due cost, are adjourned or simply are not allotted a date for hearing.”24.2.3 Despite EJ Lloyd, AREJ Findlay and myself having asked both parties at different stages of the case and in different ways to reflect on the volume and size of the correspondence, the claimant has continued to send lengthy letters to the tribunal many of which contain submissions that she would no doubt wish to make at a final hearing but cannot be the subject of a substantive consideration at this stage. Many of those submissions are based upon the tribunal being asked to make substantive determinations by the claimant based solely upon assertions by her and without hearing the [ 10 / 13 ] evidence from both sides the effect of which would be to determine her case in her favour. Many of those emails are in sent in quick succession and on occasions seek an earlier email is disregarded.24.2.4 Those matters and the repetition of points that I make substantive determinations upon at (24.1) have in my judgment resulted in this claim taking up a disproportionate amount of the tribunal’s resources.
DISCUSSION AND CONCLUSIONS
[25]Having looked at those matters I have stepped back and considered matters in the round. I have set out at (18) above, why I consider a fair trial is not possible without the information that was required by the Unless Order. In my view the claimant knew or ought to have known what was required of her by the Unless Order and the order for further and better particulars that preceded it. She continues to fail to provide the information required despite in my view, it being clear what was omitted and why that was relevant. The claimant has failed to provide an adequate explanation why that has not been provided, having previously agreed with the assistance of counsel to provide it.[26]Her application for the stay does not address the failure to provide that detail, all the matters for which details are sought in the Unless Order should be known personally to her. In my judgment given the repeated failures to provide that information the evidence suggests there is no prospect of it being provided in the near future. Whilst that might suggest an inability on the claimant’s part to engage substantively with the content of the claim and as I state above I must take into account that she acts in person that is at odds with the content of some of the correspondence from the claimant which identifies an ability to investigate and address technical issues in great detail but also a preparedness to make serious accusations against named individuals.[27]Taking into account the delays to date that lapse of time will cause substantial prejudice to the respondent and named individuals for the reasons I give above. The fact the claimant appears to be unable to provide the detail of what is alleged reinforces the potential effect on cogency that stem from the delay.[28]The respondent argues, and I accept, that the claimant’s conduct of the claim has substantially increased the costs of defending the claim, examples of which I have set out above, the claimant repeating issues have not been addressed (or addressed properly) when they have, engaging in long correspondence that at times have little discernible relevance to the issues at hand and without cross referencing where detail that is alleged to have been provided is set out have taken a disproportionate amount of the tribunal’s resources.[29]Despite the draconian nature of the sanction and that the claimant is a litigant in person, the absence of an available effect lesser sanction and what I conclude is the minimal likelihood of compliance without it, leads me to conclude that there are no viable alternative sanctions and the prejudice to the respondent that I identify in the preceding paragraphs leads me to conclude, looking at matters in the round, that it is not in the interests of justice that the r. 38(1) notice dated 4 May 2017 confirming that the claimant’s claim was struck out on 3 January 2017 be set aside. Strike Out[30]The provision concerning strike out are contained in r. 37 so far is relevant here:- “37(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— [ 11 / 13 ] … (b) 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; … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”[31]Whilst Ms Criddle asserts the way the claimant has conducted aspects of her claim have been scandalous, principally she argues it has, overall, been unreasonably conducted based on the arguments I summarise above (24.1). Further, she argues a fair trial is no longer possible.[32]In Blockbuster Entertainment Ltd v James [2006] IRLR 630 the CA albeit in a case concerning rule 87 of the 2003 rules held that the power to strike out was a “draconic power not to be too readily exercised”. Sedley LJ continued: “5. … The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2000] 2 BCLC 167 and of the EAT in De Keyser Ltd v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.”[33]Given the claimant was not present I considered whilst in tribunal, Harvey P1.1.T.(3) and the cases principally referred to therein Bennett v London Borough Of Southwark [2002] EWCA [2002] IRLR 407 and Arriva London North Ltd v Maseya UKEAT/0096/16 amongst others. Save that the latter reminds me that a structured approach and careful analysis of the facts is required, Harvey and those authorities in my judgment reinforce the position set out in Blockbuster and the cases cited in the paragraph above. I gave Ms Criddle an opportunity to address me upon the same. She concurred with the view I reached of the same.[34]Rule 37 in my judgment thus imports a two stage test. The first stage is to consider whether any of the grounds (a)-(e) have been established. Thereafter, I have to consider whether or not to exercise the discretion (“… a Tribunal may strike out …”) in favour of striking out; that is question of proportionality.[35]In my judgment, the two cardinal conditions outlined in Blockbuster are in the alternative as is connoted by use of the word “either”. For the reasons I give above in the absence of the information required in the unless order being provided a fair trial will remain impossible. The claimant has not remedied the failure. The claimant suggests she is unable to do so and proposes an alternative way forward because she is unwell. Contrary to my order she has not supplied the medical evidence either in the detail I identified or at all to show that she is unfit and if she is not fit, if she will ever be fit to do so and when that is likely to be. She continues to assert she is unfit contrary to my order that she was required to supply evidence to support the same. I indicated that if she sought a postponement based on her fitness again medical evidence was to be provided. The burden is on her to do so. She has not done so. She has sought a postponement notwithstanding the absence of the medical [ 12 / 13 ] evidence. In my judgment, she thus has disregarded orders that she is clearly aware of. I say disregarded because I find that is so; those points were made clear to her. The claimant has engaged in detailed and lengthy correspondence with the tribunal and respondent which as Ms Criddle points out shows the claimant is capable of engaging in complex matters; in particular, she refers me to the claimant’s email of 28 June 2017 timed at 11:02 refers to Art. 6 ECHR cases of the European Court and Balls v Downham Market High School [2011] IRLR 217 on strike out.[36]I concluded there is no prospect of the information required by the unless order being provided by the claimant. The events that are the subject of those requests date back as far as August 2012. The claimant’s failure to date to relay the detail of what she alleges were the disclosures and the false information (see [30] of the Compliance Decision) highlights a critical effect on the cogency of the evidence stemming from the delay. That issue is compounded because this claim has not as yet reached the disclosure stage nor can that stage be completed until he information required by the unless order is provided (although I accept much of the disclosure has been provided at least from the respondent to the claimant in the form of subject access and freedom of information requests). Similarly, for the provision of witness statements. The claim is thus still a long way from trial.[37]In my judgment, the way the proceedings have been conducted by the claimant has been unreasonable and it is no longer possible to have a fair hearing in respect of the claim. For the reasons I give above no alternative sanction is available and the way forward suggested by the claimant does not address the issues I identify in that regard. Whilst strike out is Draconian sanction, for the reasons I give above, in my judgment in this case it is a proportionate one. Accordingly, and in the alternative, the claim is struck out.