Mrs C Chase v Automobile Association Developments Ltd: 2302486/2022
JUDGMENT
[1]The Claimant’s claim for disability discrimination is dismissed upon withdrawal under Rule 52 of the Employment Tribunal’s Rules of Procedure 2013. JUDGMENT[2]The claimant’s claims are struck out under Rule 37(1)(d) as they have not been actively pursued.REASONS
[1]In summary, this was an application by the Respondent to strike out the claimant’s claims as she had not engaged in any case management of this case for just over a year.Procedure
[2]This was the third preliminary hearing in this matter.a. A Preliminary Hearing for Case Management took place before Employment Judge Frazer on 24 April 2023, attended by the claimant, at which she made a number of case management orders preparing this matter for hearing over five days commencing to December 2024.b. A Public Preliminary Hearing took place before Employment Judge Ramsden on 14 March 2024. The claimant did not attend this hearing. Judge Ramsden was asked by the respondent to strike out the claimant’s claims because of non-compliance with case management orders and because it not had not been actively pursued; or in the alternative for an unless order compelling the claimant to comply with those case management orders. Employment Judge Ramsden did not make either order. She observed that an email sent by the claimant on 11 September 2023, in which she raised her considerable domestic difficulties, her poor mental health, and losing her home, provided strong extenuating circumstances for the non-compliance and failure to pursue her claims.c. Employment Judge Ramsden imposed a stay until 16 September 2024, and listed a hearing to take place today to consider any application either party might make by 17 September 2024.[3]On 17 September 2024 the respondent made an application to strike out the claimant’s claim in its entirety on the basis that:a. The manner in which the proceedings have been conducted by the claimant is unreasonable and vexatious;b. For non-compliance with the order of the Tribunal; and/orc. That the claim is not being actively pursued.[4]In the alternative the respondent applied for a deposit order, and for an unless order requiring the claimant, essentially, to comply with all of the outstanding case management orders within the next seven weeks.[5]The respondent provided an 88 page bundle for this hearing.[6]At 9:35 AM and 9:48 AM today the Tribunal clerk called the claimant’s mobile phone but had no success in reaching the claimant. She left voice messages reminding the claimant of the hearing commencing at 10 AM. At 9:55 AM the tribunal clerk emailed the claimant setting out the attempts she had made to contact the claimant to check whether she had received login details of the hearing commencing today. (The claimant had previously been emailed these details). The claimant was encouraged to email the tribunal if she was having any difficulties.[7]At 10:06 AM nothing had been heard from the claimant. I commenced the hearing with only myself and Mr Leonhardt present. There was a brief discussion to consider the appropriate way forward. Mr Leonhardt told me that the respondent had heard nothing from the claimant about this hearing. I considered that it was appropriate to allow the claimant until 10:30 AM to contact the tribunal.[8]At 10:30 AM nothing had been heard from the claimant. I therefore resumed the hearing to consider how to proceed. Mr Leonhardt urged me to consider the respondent’s application to strike out in the claimant’s absence. I consider that it was appropriate, given the history of this matter, to proceed with the hearing in the absence of the claimant. This was the second hearing she had not attended and she has not actively participated in these proceedings for over a year.[9]I heard Mr Leonhardt’s submissions on strike out, I deliberated briefly, and I gave an oral decision striking out the claim under Rule 37(1)(d).The law
[10]Rule 37 of the Employment Tribunal’s Rules of Procedure 2013 (“ET Rules”) provide:(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).(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.[11]Under Rule 37(1)(d) claim should not be struck out unless there has been intentional and contumelious or inordinate and inexcusable delay leading to a substantial risk that a fair trial is not possible or that serious prejudice is caused to the respondent (Birkett v James [1978] AC 297). The application[12]The application is set out in the respondent’s solicitors’ email of 17 September 2024. In terms of the narrative of events, it sets out, in summary, that:a. The claim was issued on 25 July 2022.b. Case management orders were made at a preliminary hearing on 24 April 2023.c. On 24 July 2023 the respondents applied for an unless order on the basis that the claimant had failed to provide a schedule of loss, despite the respondent chasing for one and assurances from the claimant that she would provide one.d. On 24 August 2023 the tribunal wrote to the claimant confirming that it was considering an unless order and required the claimant to provide a schedule of loss within 14 days of the letter.e. On 8 September 2023 the respondent wrote to the tribunal indicating that no response had been received from the claimant, and that they had proposed postponing further case management orders in the light of the claimant’s nonengagement.f. On 11 September 2023 emailed the respondent and the tribunal explaining very difficult personal circumstances relating to her domestic circumstances, her mental health and her family circumstances. She did indicate that she would like to continue to pursue her claim.g. The respondent set out that the hearing before Employment Judge Ramsden took place on 14 March 2024, which the claimant did not attend.h. The respondent indicated that the claimant’s schedule of loss was 16 months overdue, disclosure was 12 months overdue, and witness statements were 11 months overdue the final hearing was due to take place in less than three month’s time, and there was serious concern that the claimant would not engage in any further case management orders and that the respondent would continue to incur costs defending the claim.[13]Mr Leonhardt briefly amplified the application in oral submissions. He submitted that the intentional and contumelious, relying on the fact that the claimant had made promises back in June 2023 to provide a schedule of loss which she did not keep. He applied to strike out under Rule 37(1)(b), (c) and (d), but indicated that (d) seemed the most appropriate ground. In relation to prejudice under (d) he acknowledged that, strictly speaking, the claimant’s non-pursuit of her claim had not made a hearing “impossible”, he submitted that the history of this case up until now would strongly suggest that the claimant is unlikely to engage further, and that a hearing commencing to December 2024 was highly unlikely to be effective. He submitted that the respondent had already been put to prejudice attending two hearings that the claimant had not attended, and that further prejudice would accrue in that the respondent would continue to be required to prepare for a hearing.Conclusions
[14]The claimant has not contacted the respondent or the tribunal since her email of 11 September 2023, just over a year ago.[15]Since the case management preliminary hearing of 24 April 2023, the claimant has not complied with any of the case management orders made at this hearing.[16]Although the claimant made reference in her email of 11 September 2023 to significant difficulties she was having in her personal life (which I do not for one moment seek to minimise), there is no evidence that these personal circumstances still pertain over a year later.[17]I find that by not complying with any of the case management orders, and not engaging with the respondent or the tribunal at all since 11 September 2023 there has been inordinate delay caused by the claimant. Although Employment Judge Ramsden gave the claimant some leeway on 14 March 2024, it was clear from her order that the claimant could not continue to be granted indulgence.[18]These claims relate to events in the latter part of 2021 up until April 2022.[19]As I have indicated, the claimant has taken no steps forward in this litigation since the case management hearing on 24 April 2023.[20]Theoretically, it is “possible” for unless orders to be made requiring, essentially, the whole of the case preparation to be condensed into the next seven weeks. Theoretically, a fair trial is not “impossible”. However, approaching this matter realistically and pragmatically with an eye to the track history, there is no realistic prospect that this case can be prepared so that the hearing due to commence 2 December 2024 will be effective. There is no evidence to suggest that there is going to be a sudden about turn in the way the claimant has approached this litigation.[21]If the hearing in December 2024 is not effective, such are the difficulties in listing cases in this region that it is highly unlikely that a further 5 day final hearing could be listed before 2026.[22]I find that the respondent has already been put to the prejudice of preparing for the last hearing and the current hearing, neither of which the claimant attended. This case has all the hallmarks of having been abandoned by the claimant who persists in not engaging.[23]I therefore find that the claimant has been responsible for inordinate and inexcusable delay which has led to it not, realistically, being possible to hold a fair hearing within the window listed by the tribunal between 2 and 6 December 2024. It has also led to the respondent being prejudiced in having to prepare for two hearings which the claimant has not attended and facing the prospect of further preparing for a hearing which has no chance, realistically, of being effective. If this hearing is not effective there will not be a further hearing (relating to events in 2021 and early 2022) until 2026.[24]I consider that it is proportionate, and in accordance with the overriding objective, to strike out the claims on the basis that they have not been actively pursued. The claimant has not taken a single step forward in litigation since April 2023 and has not engaged with the respondent or the tribunal since 11 September 2023. There is no evidence that any personal difficulties which she mentioned on that occasion still apply.