Mr M Ibeziako v K Milner and Staff Call UK Ltd: 1800202/2021
JUDGMENT
[1]The applications of the respondents to strike out the claims on the grounds the manner in which they have been pursued is scandalous, vexatious or otherwise unreasonable or they have no reasonable prospect of success are refused.[2]The application of the claimant to strike out the response on the grounds it has no reasonable prospect of success is refused.REASONS
[1]By rule 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— 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 or response (or the part to be struck out). 1 of 3 A(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.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[2]By rule 39:(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b)the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.[3]The respondents made applications to strike out the above claim and claim number 1801093/2020 on grounds under rule 37(1)(a) and (b). Those applications were refused. The claimant had withdrawn claim number 1801093/2020.[4]On 14 April 2021 the claimant made an application to strike out the responses or for the respondent or to pay a deposit on the basis they had no reasonable prospect of success in terms of limitation and the content of the response enjoyed absolute immunities, namely the reference to the earlier unsuccessful claims of the claimant or that the arguments of the respondents were scandalous or vexatious. 2 of 3 A[5]The reference to limitation is developed in paragraph 3 and 4 of the application and relates to the response having been submitted late, the claimant alleges more than the 28 day period allowed in the rules. The respondents were sent the notice of the claim on 21 January 2021 and required to present the response on 18 February 2021. That is when the response was presented. Rule 16(1) provides that the response shall be on a prescribed form and presented within 28 days of the date that the copy of the claim form was sent by the Tribunal. The response was received in time.[6]The remainder of the application concerned absolute immunity in respect of the reference to his earlier claims. These were referred to at paragraphs 36 to 38 of the amended response (34 to 36 of the response) in support of the application to strike out the claims because they were vexatious and scandalous. As that application was dismissed the Tribunal had no need to strike out that relied upon in support.[7]Even if it had, the claimant’s proposition about absolute immunity is misconceived. The authorities on which he relies concern the prohibition on bringing claims, such as libel or slander or discrimination, based upon matters arising in or from legal and court proceedings. These attract absolute immunity. Absolute immunity does not extend to preventing reliance upon previous unsuccessful claims and the conduct of a party in them within an application to strike out for vexatious conduct. Establishing vexatious conduct depends upon the misuse of the court process and litigious behaviour.[8]Because of the above, the claimant’s applications for strike out or a deposit order were refused as they had no merit. There was limited time at the end of the hearing for the full reasons to be expressed, but these are the comprehensive reasons for the judgment. (see Partners of Haxby Practice v Collen UKEAT/0120/12/DM).[9]The reasons for making a deposit order are succinctly summarised in the Order and shall not benefit from repetition or improve with elaboration.[10]The Tribunal assessed the claimant’s ability to pay in a discussion with him. The Tribunal asked the claimant what sum he could afford by way of a deposit. He said he was in work, provided details of his weekly earnings of an average of £200 to £300, but said they may be as little as £100. He was asked what he could afford and raise within a month and he initially suggested £1 in respect of each claim. In discussion with the Tribunal the claimant said that he could raise £140, that is £20 in respect of each complaint. The respondent’s representative suggested he could raise significantly more on earnings of at least £800 to £1,000 but the Tribunal was satisfied that £20 for each complaint was appropriate, having had regard to the claimant’s ability to pay.Procedure
[11]The claimant alleges that the respondent unreasonably and vexatiously conducted the proceedings by applying to strike out his claims with a view to harassing him and in circumstances in which a high threshold is imposed in discrimination cases. In addition, he complained that the respondent had sought to defer the proceedings pending an application for a civil restraint order which was not proceeded with. The Tribunal did not postpone the hearing. The claimant says the respondent withheld disclosure and names of witnesses. In his recent written submission, he complained that the respondent breached data protection and confidentiality. He alleges there was a lack of evidence in support of the response and application of the respondent. He refutes issues raised in the response and says a witness was threatened. He complained about reliance in the pleaded response upon earlier litigation the claimant had been involved and when a costs order had been made against him. He complains that the respondent did not settle his claim when he made an offer through ACAS.[12]I do not accept that the respondents acted unreasonably or vexatiously in their conduct of the proceedings or in bringing an application to strike out the claims. The fact an application is not successful does not mean it was unreasonably pursued. (The claimant’s own application to strike out and deposit orders were unsuccessful). The claims were inherently weak, and it was appropriate for a hearing to be listed to consider whether they should be struck out, the order made by Employment Judge Buckley. She could have rejected those applications without a hearing but chose not to do so; in my view appropriately. The claimant withdrew all of these claims and chose not to pursue them, notwithstanding he had initially paid a deposit in respect of three. That indicates that the interlocutory process was appropriate and proportionate. It avoided these weak claims proceeding to a final hearing.[13]I reject the suggestion that there was inappropriate conduct in seeking to defer the claim pending an application for a civil restraint order which, in any event, did not delay the proceedings. The claimant has pursued many unsuccessful claims in the Employment Tribunal in the past and the representatives of the respondents were entitled to pursue all reasonable avenues to protect their clients from unmeritorious claims. There was no unreasonable failure to disclose documentation at this stage of the claim. Offers to settle claims are covered by the without prejudice rule and discussions to settle the claim should not be referred to unless a party has expressly reserved the right to do so in a cost’s 4 of 5 application. In any event, I could not find it unreasonable of the respondent to refuse the offer of the claimant in the light of the fact his claims have been withdrawn. The suggestion of misuse of data and breaches of confidentiality, threatening of a witness and comments about factual issues remain allegations which have not been determined.[14]There are no grounds to make a preparation time order under rule 76. The application of the respondents for costs against the claimant[15]Although the claimant says this application was out of time, it was made on the 22 July 2021 which is within 28 days of the judgment dismissing the remaining claims, on 25 June 2021. It is in time.[16]The respondents say the claims had no merit, and the claimant subjected them to a lengthy campaign of harassment by way of vexatious conduct in these proceedings, was personally abusive and sent voluminous unnecessary correspondence, leading to legal costs of over £71,000 in the first instance and a further sum in excess of £18,000 in respect of these applications.[17]Whilst I accept there is force in the argument that the claimant has conducted the proceedings unreasonably, I am not satisfied that a costs order should be made against the claimant having regard to his ability to pay, or rather inability to pay one. That is a factor I may take into account under rule 84 and, in this case, I consider it appropriate to do so. By email of 15 September 2021, the claimant has submitted circumstances relating his indebtedness, which it is the unnecessary to recite in these reasons. I do not consider it proportionate to conduct a further enquiry into those circumstances. Application for recusal[18]At the very conclusion of his email of 17 September 2021, which is a witness statement to support his application, the claimant states that he renews an application to recuse me from considering these proceedings. It does not contain any particulars for the application but is stated to be a renewal of an application sent to Regional Employment Judge Robertson which was refused and communicated to the parties by letter of 20 August 2021. Regional Employment Judge Robertson refused a request for reconsideration of that application on 15 September 2021. The application is refused for the same reasons set out by Regional Employment Judge Robertson.