Mr S Parekh v The Governing Body of Chelsea Hospital School and The Royal Borough of Kensington and Chelsea: 2204925/2020
JUDGMENT
[1]The claims are struck out[2]The trial on 21-24/9/2021 is cancelled.REASONS
[1]This litigation has been characterised throughout by the Claimant repeatedly breaching orders and conducting the procedural aspects of the litigation in an unreasonable manner.[2]The Claimant failed to comply with the original directions dated 17/12/20. I made a previous unless order on 1/4/21, and gave him an oral warning (repeated in writing in the order of 1/4/21) that if he did not comply in future he would be at risk of striking out.[3]He then failed to liaise with the Respondents, as I had ordered, to agree a list of issues so I had to make a further unless order on 2/7/21.[4]I assume he complied with both the unless orders, which I have referred to in paragraphs 2 and 3 above, as I heard nothing further at the time from the Respondents.[5]The Claimant then failed to exchange his witness statement on or before 1/9/2021 as previously ordered (and failed to comply with a reasonable extension for this granted by the Respondents). On the Respondents’ application on 7/9/21 I made a third unless order providing that unless the Claimant served his witness statement on the Respondent by 12noon on 10/9/21, his claims would be struck out. I emailed this order directly to the parties on 7/9/21.[6]After the 12 noon deadline on 10/9/21 I read for the first time an email sent at 2.01 that morning from the Claimant asking for an extension, and an email from the Respondents solicitors sent at 6.58 opposing and a further email from the Claimant timed at 11.57 to me filing with me a copy of the Claimant’s (unprotected) witness statement. However I had not ordered the witness statement to be filed with the Tribunal or me, and this did not comply with the unless order dated 7/9/21.[7]The Claimant failed to comply with the unless order in that he purported to serve his witness statement on the Respondents solicitors at 12.04 on 10/9/21. Not only was this late but the document was unliterally password protected by the Claimant, with him only providing the 2204925 2020 password to the Respondents at 15.25pm. As no order had been made for the witness statement to be served under a password, and it was illegible until the password was provided, in my view the statement properly so called was not served until 15.25pm.[8]The Claimant has referred to his status as a litigant in person, which I had already noted and taken into account in deciding to make the unless orders.[9]The Claimant has therefore not complied with the unless order dated 7/9/21 and the claims are struck out under Rule 37(1)(c).[10]The Respondent’s solicitor's email of 13/9/2021 timed at 10.17, which was copied to the Claimant, states further that the Claimant’s witness statement, when it could be opened by them, was found to refer to documents that were not included in the trial bundle and that at 16:01 on 10/9/21, they received an email from the Claimant enclosing new evidence comprising 159 pages in total. The Claimant also suggested that he seeks to rely on further documentation but had been unable to send these documents due to the file sizes. The Claimant had placed these on a USB memory stick, which had not been received by the Respondents solicitors at the time of writing their email of 13/9/21.[11]That being the case, quite apart from the lateness of the Claimant’s service of his witness statement on the Respondents, it fails to stand as a reasonable witness statement for purposes of the trial listed for three days to start on 21/9/21, in that it goes well beyond making references to the agreed trial bundle (as directed in paragraph 12 of my order dated 1/4/21) but it also contains references which can be understood only by reference to documents which have not been disclosed at the proper time or in any reasonable fashion, and thus fails to present the Claimant’s evidence in a manner which the Respondents or Tribunal can be expected to deal with reasonably given the imminence of the trial.[12]It is not possible to have a fair trial without an adjournment. However, given the needs to use resources efficiently and to avoid unnecessary further delays for other Tribunal users, it would not be proportionate or in accordance with the overriding objective to adjourn the trial. Therefore, as a result of the Claimant’s unreasonable conduct of the proceedings, it is no longer possible to have a fair trial on the listed dates.[13]Hence, if I had not struck out the claims under Rule 37(1)(c) I would and do strike them out anyway under Rule 37(1)(b) (unreasonable conduct) and under Rule 37(1)(e) (fair trial impossible). J S Burns[1]On 14 September 2021, I struck out the Claimant’s claims for non-compliance with Tribunal Orders, pursuant to rule 37(1)(c) of Sch 1 of the ETs (Constitution & Rules of Procedure) Regulations.[2]Alternatively, I struck them out under rule 37(1)(b) (unreasonable conduct) and under rule 37(1)(e) (fair trial impossible).[3]On 24 September 2021 the Respondents applied for all their costs of this matter, asking that I deal with the application by way of written representations.[4]On 28 September 2021 the Claimant applied for a reconsideration of the decision to strike out his claims, referring to his mental health and other medical conditions.[5]Also on 28 September 2021, I ordered the Respondents to file and serve a schedule of the costs being claimed. This was provided on 30 September 2021, in the sum of £16,040.[6]On 26 October 2021, I refused the Claimant’s application for a reconsideration of the strike out and gave him until 9 November 2021 to file any submissions in response to the costs application.[7]I received the Claimant’s written submissions opposing the application on 9/11/21.This did not include a request for a hearing and in the circumstances, I do not think a costs hearing is necessary.[8]I am very grateful to Ms C Urquhart of Counsel who has generously assisted the Claimant through the Advocate scheme to make well-drafted and cogent costs submissions.[9]I have already in my strike-out judgment found that the Claimant conducted the litigation unreasonably throughout.[10]In summary the Claimant repeatedly breached the original Directions Order dated 17 December 2020 and the Case Management Order dated 1 April 2021 and I had to issue three Unless Orders against the Claimant dated 1 April 2021, 2 July 2021 and 7 September 2021, the first two of which he eventually complied with but the third of which he failed to comply with, hence the striking out.[11]I am aware that awarding costs in the Employment Tribunal is exceptional.[12]However, the condition in rule 76(1)(a) is met and I must exercise my discretion as to whether or not to make a costs order against the Claimant, and if so in what amount.[13]I have not struck out the claims for lack of prospects or because the claims were spurious or vexatious - the merits of the claims have not been tested.[14]I am unable to make any findings about the alleged data breaches by the Claimant as this has not been tested. 2204925 2020[15]However, I accept that the Claimants persistent unreasonable conduct and failure to engage or co-operate in the procedural aspects of the litigation caused the Respondents, a local school and local authority, to waste extra public money in dealing with him.[16]I have taken account of the matters submitted on his behalf notably that he is a litigant in person who has had some mental and other health difficulties and stresses in his personal life. As I have already stated in my reasons for dismissing the reconsideration order, I did not find those matters as a sufficient reason for restoring the claims. However, they are a mitigating factor which I take into account in considering the costs issue.[17]I also take into account that he has already lost his claims without a trial as a consequence of his conduct, and the Respondents have gained the advantage of not having to defend the claims at trial.[18]I also take into account the fact that the Claimant did eventually comply with the first two unless orders and appears to have tried to have comply with the third - his final failure to comply was not caused by reckless disregard or by his having completely ignored the unless order - but by his inefficiency and ineptitude.[19]I have taken into account what I have been told about the Claimant’s personal situation, namely that is aged 63 years and is living with his wife on low income. However, he has savings of £3000 and a house worth £600000 with a mortgage of £9602.50.[20]I have considered the Respondents’ Schedule of Costs in the sum of £16040. While some queries about this have been raised on behalf of the Claimant, I regard the total amount as reasonable having regard to the work which the Respondents’ lawyers had to do, which, as already stated, was no doubt significantly increased as a consequence of the difficulties caused by the Claimant.[21]I have come to the conclusion that the appropriate order is that the Claimant should pay the Respondents £3000 costs, which is a sum which he should be able to pay from his savings without borrowing further, (although for the avoidance of doubt this costs order remains payable by him, whether or not he still has £3000 savings on receipt of it). J S Burns