Mrs I Lami and Others v Tapri Ltd and Others: 1305455/2024 and Others
JUDGMENT
[1]The respondents’ responses are not struck out. However, an Unless Order will be issued, the details of which will be sent separately to the parties.REASONS
[1]By email dated 9 June 2026, the claimants had applied for:a. Strike out of the respondents’ responses;b. Partial strike out or an order debarring the respondents from relying upon undisclosed allegations of theft, fraud, sabotage, EPOS manipulation, cash loss, stock loss, and police-related allegations;c. An unless order;d. Targeted disclosure directions; and/ore. Reservation of the claimants’ right to seek preparation time and/or costs.[2]The basis of this application related to an alleged failure by the respondents to comply with Employment Judge Close’s case management orders following a hearing on 7 May 2026. The application was accompanied by a detailed attachment explaining the basis for the application, a draft proposed order, detailed evidence extracts and a proposed agenda for the upcoming hearing.[3]The respondents opposed the application by email dated 12 June 2026. I heard oral submissions from both of them during the hearing. There was insufficient time to reach my decision so I explained to them that I would reserve my decision and confirm it in writing.[4]Whilst these Reasons refer to the respondents collectively, at the time of the application from the claimants the fourth respondent was not party to these proceedings and therefore it would not have been appropriate to strike out that respondent’s response for non-compliance or issue any sanction against it regardless of my decision in relation to the other respondents. However, given the close connection between that respondent and the other respondents, I do consider that it is appropriate for the Unless Order to bind all four respondents, as explained below. Background to the application[5]These claims have a long and convoluted history (this being the ninth preliminary hearing across the various claims). It is not necessary to set out all of the background here but it is relevant to note the following aspects of the timeline:a. At the first preliminary hearing on 25 November 2024, Employment Judge Broughton ordered the respondent to disclose to the claimants by 24 January 2025 all correspondence with the following agencies relating to their business for the period from 2021 to date: i. Companies House ii. HMRC iii. The Home Office iv. The police There were very specific reasons for his order, which he explained in his Record of Preliminary Hearing dated 25 November 2024.b. At a preliminary hearing on 25 March 2025, Employment Judge Kenward noted that the respondents had, in response to EJ Broughton’s orders, send certain documents to the claimants on 24 January 2025. He commented that “on even a cursory analysis, it simply did not make sense that the documents disclosed represented the extent of the documents which could or should have been disclosed in respect of a period of approximately four years from 2021” He went onto provide detailed examples of relevant letters which had not been provided and referred to the respondents’ explanation for the position as “extremely unsatisfactory”. He said that he was “concerned at the apparent extent of the failure of the Respondents to comply with the Order for disclosure made by Employment Judge Broughton….I concluded that it would be necessary to list the issue of the Respondents’ compliance with the Order of Employment Judge Broughton to be considered at a further hearing”. He went onto order that the respondents must now comply with the order within three weeks of the Record of Preliminary Hearing being sent to the parties, and for the second and third respondents to provide a signed statement confirming their compliance or giving reasons for any noncompliance. The hearing was to be listed as a public hearing so that, if the Tribunal was not satisfied with the steps taken by the respondent, it could consider striking out all or part of the respondents’ response.c. That hearing took place on 2 June 2025 before Employment Judge Perry. At that hearing there was a dispute between the parties as to whether there had been compliance, however matters were superseded by the fact by this time a police investigation was underway and it appeared that the evidence being used in these proceedings would overlap with the criminal investigation. The respondents sought a stay in proceedings and directions were issued to consider that stay. The disclosure issue was therefore not resolved, however Employment Judge Perry did order that the respondents would provide a witness statement about certain matters, a list of all of the documents that had been disclosed and a list of all the documents that had not been disclosed.d. The claim was ultimately stayed until 23 February 2026. At a preliminary hearing on 7 May 2026 Employment Judge Close reissued the disclosure order previously made by Employment Judge Broughton with the date for compliance being 8 June 2026. It is the respondents’ alleged failure to comply with that order that is the subject of the claimants’ applications before me.e. This hearing was originally listed as a private preliminary hearing for case management purposes, however was converted to a public hearing by Employment Judge Camp on 30 June 2026 so that the claimants’ application could be considered. In his correspondence to the parties he indicated that Employment Judge Close cannot have meant that literally all correspondence between the respondents and the four agencies should be disclosed, but only those relevant to the issues in the claims.[6]To give the context for why there was an order for disclosure in relation to these agencies, separate to the normal disclosure orders (ordinary disclosure not as yet having occurred), it is important to set out a brief summary of what the claims are about. The claimants are all related (three brothers, and Dr Lami’s wife). The claimants say that Dr Lami raised a number of protected disclosures to the respondents about matters including breaches of immigration and sponsorship licence requirements, food safety issues, breaches of national minimum wage, VAT issues, fraud and false accounting, amongst other things. They say that the respondents took action against them in retaliation for Dr Lami’s disclosures. The claimants also say that the first respondent has diverted assets to another company in order to avoid being able to pay any compensation which it might be ordered to pay under these proceedings. The respondents say that the claimants were engaged in fraudulent activity and that they were dismissed because of this (although they do not accept that they dismissed Mrs Lami at all), and that they later reported this to the police. This is why Employment Judge Broughton made the orders that he did. I make no findings as to what did or did not happen between the parties: that will be a matter for the final hearing. The claimants’ submissions[7]The claimants’ submissions are detailed and I do not set them out in full here. However, in broad terms, the crux of their argument is that Employment Judge Kenward had said in clear terms that the respondents were in breach of Employment Judge Broughton’s orders. Since then, the respondents had only provided selected additions to the previous disclosure, meaning that they must remain in breach of the orders. They also said that the respondents had not provided any explanation of how they had carried out their search, what was new and what had previously been provided, and what was outside their possession, custody or control.[8]The claimants do not seek to argue that only a small number of documents have been disclosed: they accept that the total disclosure amounted to 220 pages. However they submit that there are clearly missing documents from this disclosure. By way of example, they refer to the witness statements of the second and third respondents which were prepared at an earlier stage of the proceedings and which detail the police investigations. They refer to interactions between the respondents and the police during which the police requested certain information and the respondents said that they provided it. They say that this was not within the disclosed documents.[9]Likewise, they say that these witness statements referred to specific correspondence with the Home Office, which is not included in the documentation disclosed.[10]The claimants position is that the Tribunal should now strike out the respondents’ response or take other action against the respondents. They say that re-ordering disclosure is insufficient, given the repeated breaches and the unsatisfactory explanation provided by the respondents for the breach (which I explain in more detail below). They say that the proceedings have already been going on for several years and a further ordinary direction would simply perpetuate the same cycle. They say that the respondents have been utilising the police involvement tactically as a mechanism to delay these Tribunal proceedings whilst they divert money away from the first respondent so that there are insufficient funds to pay any compensation awarded to the claimants.[11]The claimants rely on Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327 to argue that strike out is proportionate on the basis that a fair trial cannot take place within the existing trial framework and that the Tribunal is not required to adjourn matters indefinitely. In the alternative, they seek a partial debarring order or an unless order.[12]The claimants raised during the course of the hearing that the respondents have failed to comply with Tribunal orders more generally. In this regard they refer in particular to the respondents’ failure to provide a bundle to the claimants five days in advance of this hearing, as they had been ordered to do. Relevant to that is also the fact that, when a bundle was ultimately produced the day before the hearing, it was missing various key documents (including the key amendment application / further and better particulrs that the hearing was to dealt with, and Employment Judge Broughton and Employment Judge Kenward’s orders). I have set out detailed observations on that in my separate Record of Preliminary Hearing but suffice it to say that the claimants are correct in asserting that key documentation was missing, contrary to specific orders issued to the respondents about exactly what needed to be included in the bundle. To re-use the wording of EJ Kenward at an earlier hearing, this was extremely unsatisfactory. The respondents’ submissions[13]The respondents’ position is that they were only required to disclose correspondence, and not to conduct a forensic disclosure exercise, prepare a disclosure certificate, index, methodology statement or any other such material which did not already exist.[14]The respondents submit that they have complied with the Tribunal’s orders. They say that the respondents have carried out further searches since receiving the claimants’ application and have found some further Home Office correspondence which had now been disclosed. They say they have disclosed all relevant correspondence within their possession, custody or control.[15]In relation to documents not in their possession, custody or control, they argue that:a. The reality is that routine business correspondence may not be retained indefinitely;b. Some of the documentation sought relates to periods when Dr Lami and Mrs Lami were involved in the first respondent’s operations and that this provides the context for why the respondents may not hold a complete historic set of records;c. That the respondents do not hold the material that was provided to the police and that the Tribunal would need to request such material from the police;d. Some discussions with the police occurred by telephone and so there is no record;e. Some evidence was provided to the police on a USB stick which the police still hold;f. That the Tribunal’s order did not require all material provided to the police to be disclosed; andg. That some of the requested documentation included confidential information (e.g. employment records of third parties).[16]The respondents argue that it would not be proportionate to issue a sanction against them in these circumstances. Law and Conclusions[17]Rule 38 of the Employment Tribunal Procedure Rules 2024 “the ET Rules”) provides that: (1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (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; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). ….[18]The claimants rely on subsections (b), (c) and (e) above.[19]Rule 39 of the ET Rules provides that:(1) An order may specify that if it is not complied with by the date specified the claim, response or reply, or part of it, must be dismissed without further order. If a claim, response or reply, or part of it, is dismissed on this basis the Tribunal must give written notice to the parties confirming what has occurred.(2) A party whose claim, response or reply has been dismissed, in whole or in part, under this rule may apply to the Tribunal in writing, within 14 days of the date that the notice was sent under paragraph (1), to have the order set aside on the basis that it is in the interests of justice to do so.(3) Unless an application under paragraph (2) includes a request for a hearing, the Tribunal may determine it on the basis of written representations.(4) Where a response is dismissed under this rule, the effect is as if no response had been presented, as set out in rule 22 (effect of nonpresentation or rejection of response, or case not contested).(5) Where a reply is dismissed under this rule, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[20]First of all, in relation to the claimants’ argument that the respondents had not set out any explanation of how they had carried out their search, what was new and what had previously been provided, and what was outside their possession, custody or control, none of these things had been ordered by Employment Judge Close and therefore there is no breach. Whilst Employment Judge Perry had previously ordered a list of all the documents and records not so far supplied, I am mindful that this was some time ago and that the stay effectively overtook matters, so I do not take any action in relation to breach of that order. Similarly the order related only to the three respondents in existence at the time of the order, and not to Gornal Bar and Grill Limited or R&J Assets Limited, so I find no non-compliance in the fact that disclosure was not related to those entities.[21]In relation to what was disclosed, I was informed that the bundle of documents disclosed by the respondents amounts to 220 pages and therefore it is not insubstantial.[22]Whilst I agree with Employment Judge Camp that, sensibly interpreted, the orders of Employment Judge Broughton and Close must relate only to those matters relevant to the proceedings, at least some of the documentation which the claimants have identified as being missing clearly is relevant. I have not seen the full details of exactly what was disclosed, however on the balance of probabilities it does seem to me that there are missing documents which are relevant and which would be necessary for the fair disposal of the proceedings.[23]In relation to the respondents’ assertion that documents are not in their possession, custody or control because they were placed on a USB stick and provided to the police, this does not make any sense to me. When documents are placed onto a USB, they are generally copied from another location. Therefore, the document remains in that other location and therefore both the respondents and the police would have a copy from that point onwards. The document does not suddenly become deleted from its original location simply because it is copied onto a USB. I found this explanation most unsatisfactory and when I questioned Ms Cahill about it at the hearing she was unable to articulate clearly any reason why the documents would have been deleted and instead at that point changed her argument to one of confidentiality. This is despite her having set out specifically in her written response to the claimants’ application that she relied on an argument that the fact that evidence was provided to the police does not mean that it remains held by the respondents after being provided via USB.[24]As to the argument that the documents are confidential and include third party data, that is not a valid basis for refusing to disclose it. No application for any privacy order in order to redact any confidential material has been made (which would be the appropriate avenue to deal with any such issues, although full weight would need to be given to the principle of open justice). Anything relevant and necessary to dispose of the proceedings, and falling within the disclosure request is subject to the disclosure obligation, regardless of whether or not it is confidential.[25]Whilst not the original basis for the claimants’ applications, I also take into account the clear deficiencies in the bundle produced for this hearing, and the unsatisfactory explanations provided by the respondents’ representative for that. Whilst this is a separate bundle to that which I am addressing here, I do take into account that the manner in which the respondents have approached the hearing bundle for this hearing suggests to me that the respondents have not been focusing their minds properly and diligently on the matters before then, and there was clear non-compliance with Employment Judge Close’s specific orders as to what material must be included in this bundle. This supports my conclusion that, on the balance of probabilities, the respondents have not disclosed all relevant material that they were ordered to disclose.[26]I conclude that the manner in which the proceedings has been conducted by or on behalf of the respondents in relation to disclosure has been unreasonable. I also conclude that the respondents have failed to comply with the Tribunal’s orders.[27]However, in considering all the grounds for the claimants’ application for strike out, I must also consider whether a fair trial is still possible (De Keyser Ltd v Wilson 2001 IRLR 324, EAT). These proceedings are, despite the amount of time that has passed since the claim forms were filed, still at an early stage. The final hearing does not take place until next year (and that would be the case regardless of whether there had been compliance with these orders). I have ordered general disclosure to take place in September 2026. Therefore, it is entirely possible for any missing material to now be disclosed and for a fair trial to still take place.[28]I also consider the Overriding Objective set out in Rule 3 of the ET Rules to deal with cases fairly and justly. Whilst I have found non-compliance, it is not clear to me whether this was due to the respondents or their representative (or both). As explained above, a fair hearing remains possible and whilst some prejudice has been caused to the claimants, there are still further opportunities for disclosure before they need to prepare their witness statements for the final hearing. I consider that there are other remedies, less severe than striking out, which would be an appropriate response to the non-compliance. I therefore do not strike out the respondents’ responses.[29]Turning to the request to debar the respondents from running certain aspects of their defence, in effect this is a request to strike out part of their response. I consider that the same points arise as set out above, and do not therefore debar the respondents from any part of these proceedings.[30]Turning however to the alternative request for an Unless Order, again I consider the Overriding Objective. If I order an Unless Order, then if the respondents did not comply with it, their response (or part of it) would be automatically dismissed. I have found that there has been non-compliance by the respondents. This was not the first occasion of non-compliance. I have also noted serious deficiencies in the bundle for this hearing which demonstrated that the respondents had not given appropriate time and attention to considering the Tribunal’s previous orders: this is a repeated pattern on the respondents’ part. I do have a significant concern that, unless there is some consequence for the respondents in the event of non-compliance, they will continue to fail to comply with the Tribunal’s orders.[31]I have decided that it is therefore appropriate to issue an Unless Order. In doing so, however, I must explain to the claimants that when determining whether an Unless Order has been complied with, the question is whether there has been material non-compliance. Therefore, if the respondents are ordered to do something, the question is whether they have done it, not whether they have done it to a high standard. On that basis, I will not be issuing an Unless Order requiring that full disclosure (with no missing documents) take place: rather I have decided to issue an order to make sure that the respondent at least does send its disclosure index, an index setting out any documents that it no longer has and why, and an explanation of the nature of the search it has carried out for documents, by a specific date (18 September 2026).[32]The terms of the Unless Order are set out in a separate document, however it broadly covers three things:a. That the respondents must send an index of disclosure documents to the Tribunal and claimants by 18 September 2026. (Copy documents are required to be sent to the claimants by the same date but are not covered by the Unless Order as the Tribunal will not know whether or not they have been sent so as to dismiss the responses without further order);b. That the respondents must by 18 September 2026 send to the claimants and to the Tribunal an index of any documents which it is aware of that would be relevant to these proceedings but which it says are no longer in its possession or control, and why; andc. That the respondents must by 18 September 2026 send a summary of the steps it has taken to search for relevant documents to the claimants and the Tribunal. In light of the history of non-compliance, I consider this to be an appropriate step to ensure that the Tribunal and claimants have an understanding of exactly what has been done by the respondents to try to find relevant documentation. If the respondents do those three things, they will have complied. Any deficiencies in the content of the disclosure material can be discussed at the next hearing however the respondents are put on notice that, whilst such deficiencies would not fall under the scope of the Unless Order, the Tribunal may take a dim view of such deficiencies in light of the history of the case and it could result in further considerations, including strike out of the respondents’ response. For that reason, the next hearing will be a public hearing so that, if such issues have been raised by the claimant, they can be considered. Should there be no such issues, it can then be converted to a private hearing.[33]I have decided that the Unless Order will include the fourth respondent, despite them only now being added to the proceedings. Rule 39 of the ET Rules does not require any particular failure on the part of the relevant party before an Unless Order is issued (although clearly it is usual practice that there has been). In the circumstances of this particular case, where the fourth respondent is run by the second and third respondents and therefore has been fully aware of the nature of the proceedings and the various issues throughout, whilst the fourth respondent is not responsible for any non-compliance to date, I consider it to be in accordance with the Overriding Objective and the interests of justice that it be equally bound by this Unless Order.[34]Finally, to address one point raised by the claimants: the claimants requested that I do not deal with the issue by asking the police to provide documents. They say that the involvement of the police has already caused substantial delay to these proceedings. I agree. I say that without any criticism of the police, however I do have a concern that seeking to involve the police again could result in further delays when for the reasons I have set out above, I see no reason why the respondents would not also have copies of the documents provided to the police. To the extent that they do not, that will now be itemised on the respondents disclosure schedule that I have ordered separately and that can be discussed separately if necessary at the next hearing. Approved by: Employment Judge Edmonds 16 July 2026 Notes All judgments (apart from judgments under Rule 51) and any written full reasons for judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s). If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/