Mr R Bruford v Daisy Corporate Services Trading Ltd: 2401264/2024

EMPLOYMENT TRIBUNALS

Case No 2401264/2024

Between

Mr R BrufordClaimant

Daisy Corporate Services Trading LtdRespondent

Before

Employment Judge Eeley

In person for claimant

Ms S Ahmad (instructed by Solicitor) for respondent

Date 9 April 2025

JUDGMENT

The claimant’s claims in case number 2401264/2024 are struck out under Employment Tribunal Rule 38(1)(d) because they have not been actively pursued and under Employment Tribunal Rule 38(1)(c) because the claimant has not complied with a Tribunal order. Approved by: JUDGMENT having been sent to the parties on 29 April 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

[1]This is the decision in relation to the respondent’s application for strike out of the claimant’s claim. In determining the application I rely on the chronology of events in the case which are set out in the documents in the hearing bundle. The contents of the preliminary hearing bundle set out the course of events and all the correspondence that has been flowing between the parties and between the parties and the tribunal. There are some particularly salient points for me to highlight and I will also summarise some of the things that I have been told verbally today, during the course of the hearing. Chronology of documents

[2]The claimant presented his claim form to the tribunal on 27 February 2024. He presented claims of constructive unfair dismissal and disability discrimination and for other payments. The claimant was employed by the respondent as an account manager in the respondent’s sales department from February/March 2022 until 29 November 2023. ACAS Early Conciliation took place between 12 November and 5 December 2023. The claimant’s claim form lacked particularity. In particular, it was not clear which impairments he relied upon as disabilities for the purposes of his discrimination claim. (There were references to a suspected cancer diagnosis and to trauma/survivor syndrome.) The allegations of discrimination were also unclear.

[3]The case was originally listed for a preliminary hearing for case management purposes on 4 September 2024.

[4]On 22 May 2024 the respondent made an application to strike out the claimant’s claim of unfair dismissal on the basis that he did not have the necessary two years’ service with the respondent to be qualified to bring a claim of unfair dismissal in the Employment Tribunal.

[5]By letter dated 13 June 2024 the tribunal noted that this matter might be considered further at the preliminary hearing listed for 4 September 2024. The tribunal asked the claimant to comment on the application and gave a deadline for compliance of 27 June 2024. He was particularly asked to confirm whether he agreed the dates of employment put forward by the respondent.

[6]The claimant did not provide his comments by the due date and so a reminder letter was sent by the tribunal dated 16 July 2024. This gave a revised deadline for the claimant’s response of 23 July 2024.

[7]On 26 July 2024 the respondent’s solicitor wrote to the tribunal (with a copy to the claimant) highlighting the claimant’s non-compliance with the tribunal’s previous request for written comments. The respondent noted the claimant’s lack of correspondence and queried whether he was still pursuing his case. The respondent asked the matter to be referred to a judge for consideration of strike out.

[8]The respondent’s correspondence prompted a response by email from the claimant on 26 July 2024. He apologised for his failure to respond to earlier correspondence and attributed it to ongoing mental health issues that had significantly impacted upon his ability to manage and respond to correspondence in a timely manner. He indicated that he had been undergoing treatment and was now in a better position to engage with the tribunal proceedings. He confirmed his intention to actively pursue the proceedings and confirmed his dates of employment as 7 February 2022 to 29 November 2023.

[9]The tribunal acknowledged receipt of the claimant’s correspondence on 6 August 2024. The letter noted that the claimant had less than two years’ service for the purposes of the ordinary unfair dismissal claim. However, it also noted that the claimant pursued claims of disability discrimination and that the basis of these claims was likely to be clarified at the forthcoming preliminary hearing. It was noted that the claimant’s claim of discrimination may also relate to termination of his employment. The letter noted that the claimant is a litigant in person and indicated that the length of service would be considered at the preliminary hearing and the ordinary unfair dismissal claim may be dismissed. However, the tribunal would clarify whether the claimant was relying on his dismissal as an act of discrimination. The parties were notified that the hearing would proceed on 4 September and the claimant was encouraged to seek legal advice.

[10]On 3 September 2024 the tribunal indicated that there may not be a judge available to hear the case and that it might be postponed. The claimant then wrote to the tribunal (also on 3 September) to request a postponement on the basis of his medical circumstances at that time. The claimant stated that he was currently under the care of Lister House Surgery for, “Complex PTSD, Survivor Syndrome, and Depression.” He said that this significantly impacted upon his ability to effectively participate in tribunal proceedings. He indicated that he had been advised by his healthcare providers that attending the preliminary hearing could severely exacerbate his symptoms. The claimant stated that he was in the process of obtaining a letter from his GP to support his request and had been advised that this may take 7-10 days to receive. He indicated that he would submit it to the tribunal once available. He wanted to seek appropriate counsel and participate in proceedings when he was in a better state of health.

[11]The tribunal wrote to the parties later that day with a postponement order indicating that Employment Judge Aspinall had granted the claimant’s request for a postponement on medical grounds and because of the limited judicial resource. The tribunal ordered the claimant to provide both the tribunal and the respondent with medical evidence to support his postponement application. The deadline for compliance was 17 September 2024. The tribunal correspondence indicated that the case management hearing would be relisted. The letter also reminded the parties that an application for postponement less than seven days before a hearing can only be granted in exceptional circumstances and that any further applications for postponement in the case must be supported by medical evidence at the point of the request for postponement.

[12]The deadline for provision of the medical evidence came and went without the claimant complying.

[13]On 16 October 2024 the tribunal sent a strike out warning indicating that Employment Judge Batten was considering striking out the claim because the claimant was in breach of the order that he provide medical evidence and had not responded to the tribunal’s correspondence. The claimant had failed to substantiate his contentions as to the state of his health. The judge indicated that the hearing could not be considered for re-listing without such information. The strike out warning also indicated that it appeared that the claimant’s claim was not being actively pursued. The letter concluded, “If you wish to object to this proposal, you should give your reasons in writing or request a hearing at which you can make them by 30 October 2024.”

[14]After the date for compliance had lapsed, the respondent wrote to the tribunal on 31 October. The respondent indicated that the claimant had failed to respond to the strike out warning letter by the due date, or at all. The respondent also pointed out that the claimant was still in breach of the order to provide his medical evidence in support of his application to postpone the hearing which was due to take place on 4 September. The respondent requested strike out of the claim on the basis that the claimant was in breach of tribunal orders and was not actively pursuing his claim.

[15]Later on 31 October, the claimant emailed to respond to the strike out warning. He objected to the strike out. He indicated that he had encountered significant difficulties in gathering the required medical evidence documents. He indicated that it had been extremely difficult to secure medical appointments promptly, particularly whilst managing his complex PTSD, transitioning to new living arrangements, and seeking new employment. He indicated that the combination of these factors had affected his ability to manage and respond to the tribunal’s correspondence within the expected timeframe. He apologised for the delays and emphasised his commitment to pursue his claim. He also sought to explain the impact his health conditions had had upon his ability to engage fully in his case. He indicated that he had lost his driving licence recently and was away from the support of family and friends. Once again, he said that he was in the process of obtaining supporting medical documentation to substantiate his health concerns and would submit this as soon as it was available. He emphasised his commitment to his claim. He requested an online hearing to discuss the matters under consideration.

[16]On 24 November 2024, under the direction of Employment Judge Cookson, the tribunal wrote to the claimant to acknowledge his correspondence. The tribunal acknowledged that sometimes there are difficulties in complying with orders but indicated that it was important that, if the claimant required more time, he let both the tribunal and the respondent know about this. Employment Judge Cookson indicated that a hearing to make further representations about strike out was no longer necessary. However, she emphasised the importance of the claimant now progressing the case management orders. She therefore gave the claimant a deadline of 2 December 2024 to confirm when he would be able to comply with the orders or to explain specifically why claimant said a hearing was required.

[17]By 10 December 2024 the claimant had, once again, failed to comply with the order of the tribunal. Accordingly, the respondent wrote to the tribunal and the claimant applying for a strike out of the claimant’s claims on the grounds that the claimant had not complied with the tribunal order of 3 September 2024 and/or on the basis that the claim has not been actively pursued. Alternatively, the respondent requested an ‘unless order’ providing for strike out if the claimant did not comply with it.

[18]In response to the respondent’s correspondence, today’s hearing was listed by letter dated 7 January 2025. The notice of hearing indicated that the purpose of the hearing was to consider the respondent’s application for strike out of the claimant’s claims.

[19]In the early hours of 9 April the claimant submitted a written response to the strike out application. He also submitted a witness statement dated 8 April.

[20]The majority of the claimant’s witness statement addressed the substance of his claims against the respondent. At paragraph 6 he stated: “Since leaving Daisy, my life has deteriorated. I am currently unemployed, in financial distress, and at risk of homelessness. I continue to struggle significantly with my mental health, and this has made it difficult to engage with tribunal processes consistently. Nonetheless, I am committed to pursuing this claim. Medical records are available and will be submitted once obtained. I ask for the Tribunal’s patience and understanding as I continue to gather these documents while navigating an extremely difficult period in my life.” At paragraph 7 he continued: “I respectfully request that the Tribunal does not strike out my claim. The delays in correspondence have been due to genuine, serious personal difficulties. This claim represents my final attempt to restore some sense of justice and normality in my life. I am doing my best to engage fully and ask that the Tribunal allow the case to continue.”

[21]In his written response to the strike out application (dated 9 April) the claimant said the following: “I strongly dispute the Respondent’s suggestion that I have failed to engage or respond. On 31 October 2024, I submitted a detailed written objection to the Tribunal’s strike-out warning issued on 16 October. I copied the Respondent into this email in compliance with the Tribunal Rules. In that response, I explained the challenges I have been facing with complex PTSD, survivor’s guilt, and depression, along with housing and financial insecurity. I also clearly stated that I was working to obtain supporting medical evidence and intended to pursue the case actively. I acknowledge that I have not yet provided medical records. However, I am in the process of obtaining them. The delay has been due to a combination of NHS wait times, my mental health condition, and the serious life circumstances I outlined in my email of 31 October 2024 and my recent witness statement. It is incorrect to suggest I have made no effort — I have communicated my intent to comply and have asked for reasonable time and understanding due to my health. The nature of my condition (complex PTSD) directly affects my ability to process, organise, and respond promptly. I am unrepresented and without support from family or legal professionals. My condition is both debilitating and ongoing, and this should be taken into account when assessing my ability to comply with case management directions.”

[22]The respondent also submitted a written submission for consideration at today’s hearing. Both parties also made oral submissions during the hearing. Applicable legal principles

[23]Under Rule 38 of the Employment Tribunal Rules of Procedure, the tribunal may, either on its own initiative or on the application of a party, strike out all or part of a claim: i. for non-compliance with an order of the Tribunal under Rule 38(1)(c); or ii. where the claim has not been actively pursued under Rule 38(1)(d). Not actively pursued- rule 38(1)(d)

[24]In Evans and anor v Commissioner of Police of the Metropolis

1993 ICR 151

, the Court of Appeal held that an employment tribunal’s power to strike out a claim for want of prosecution must be exercised in accordance with the principles that (prior to the introduction of the Civil Procedure Rules 1998 SI 1998/3132) governed the equivalent power in the High Court, as set out by the House of Lords in Birkett v James 1978 AC 297, HL.

[25]Guidance for strike out under Rule 38(1)(d) is derived from the case of Birkett v James 1978 AC 297. In Birkett, the House of Lords held that a tribunal could strike out a claim on the basis that it has not been actively pursued where: i. There has been intentional or contumelious delay; or ii. There has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is not possible, or which is likely to cause serious prejudice to the respondent. The first category may overlap with the power of strike out under rule 38(1)(c).

[26]“Contumelious” indicates a disrespect or contempt for the tribunal and/or its processes. As per the Employment Appeal Tribunal in Rolls Royce PLC v Riddle [2008] IRLR, per Lady Smith at paragraph 20: “20. These principles appear to have been identified because of there being justifiable cause for concern about two problems of which a failure to actively pursue a claim may be indicative. The first is that it is quite wrong for a claimant, notwithstanding that he has, by instituting a claim, started a process which he should realise affects the Employment Tribunal and the use of its resources, and affects the respondent, to fail to take reasonable steps to progress his claim in a manner that shows he has disrespect or contempt for the Tribunal and/or its procedures. In that event a question plainly arises as to whether, given such conduct, it is just to allow the claimant to continue to have access to the Tribunal for his claim. That is a distinct and different matter from the second problem which is that if a claimant has failed to actively pursue his claim to an inordinate and inexcusable extent so as to give rise to a risk of real prejudice to the respondent if the claim were to carry on, then a question arises as to whether or not there can still be fair trial and if there is doubt about that whether the claim should then be prevented from going any further”.

[27]Although it is accepted that striking out a claim is a draconian step, the tribunal is entitled to strike out a claim for intentional and contumelious default, having regard to all the circumstances and the overriding objective, even where the claimant is a litigant in person. See Employment Appeal Tribunal in Khan v London Borough of Barnet [2018]

UKEAT/0002/18/DA

, as per HHJ Tucker at paragraph 31: “31. Being a litigant in person does not mean that a litigant is exempt from compliance with procedures or from engaging in the litigation process to pursue a claim.”

[28]In respect of the second limb, “inordinate and inexcusable delay,” it is established that the parties in the tribunal are under a duty to ensure that the matter is dealt with expeditiously. As stated by the Court of Appeal in Evans and another v Commissioner of Police of the Metropolis

1993 ICR 151

per Lord Justice Steyn at paragraph 9: “9. …the approach that a defendant is always entitled to ‘let sleeping dogs lie’ does not apply to proceedings before Industrial Tribunals where both sides are under a duty to ensure that the proceedings progress expeditiously.”

[29]A party must show that it has been prejudiced as a result of inordinate and inexcusable delay. As per Lord Justice Hoffman at paragraph 18 of Evans, this may be easy to establish: “18. In the normal run of cases litigants before [employment] tribunals may be struck out for conducting their cases at a pace which is regarded as acceptable in the High Court … I accept that in the ordinary case the nature of the prejudice will usually be obvious. It may be, as has been said in the cases, that it is necessary to investigate the facts before memories have faded, not to allow hurt feelings to fester and to provide as summary a remedy as possible.”

[30]The tribunal is entitled to review the history of a case to conclude that a fair trial is no longer possible.

[31]Where it is not foreseeable that a fair trial can be held in the future, the tribunal is entitled to strike out the claim. As per Peixoto v British Telecommunication PLC UKEAT 0222/07: “54. In our judgment the principal finding by the Tribunal is firmly rooted in Article 6. This Tribunal held that it could not find any point in the foreseeable or even the distant future, when a trial might be likely. The Requirement of Article 6 is that a trial must take place within a reasonable time. On that basis the Tribunal was correct. If it could not in 2007 see any time in the future when this case arising in 2003 could be tried, then it was correct to form the view that a fair trial was not possible and to strike it out”.

[32]Similarly, in Riley v Crown Prosecution Service

[2013] IRLR 966

, the Court of Appeal held that striking out a claim is an option available to the tribunal where there is no medical prognosis indicating that the claimant’s health would sufficiently improve within a realistic timeframe. Non-Compliance With an Order of the Tribunal – Rule 38(1)(c)

[33]When considering whether to strike out a claim on this ground, the Tribunal must have regard to the overriding objective (set out in Rule 3 of the Employment Tribunal Rules) of seeking to deal with cases fairly and justly. This requires a tribunal to consider all relevant factors, including but not limited to: the magnitude of the non-compliance; what disruption, unfairness or prejudice has been caused; whether a fair hearing would still be possible; whether the default was the responsibility of the party or his or her representative; and whether striking out or some lesser remedy would be an appropriate response to the disobedience (Weir Valves & Control (UK) Ltd v Armitage

[2004] ICR 371

)

[34]Whenever a tribunal is considering a strike out on the ground of non-compliance with prior orders pursuant to rule 38(1)(c), it must consider whether such an order is a proportionate response to the non-compliance.

[35]In Blockbuster Entertainment Ltd v James

[2006] EWCA Civ 684

Lord Justice Sedley stated (at paragraph 5): “This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. 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.” Conclusions in this case

[36]It is particularly relevant to note from the documents that when the claimant sought a postponement of the hearing in September of last year he indicated in his email that his healthcare provider said that attendance at that hearing would exacerbate his symptoms and he indicated that he had been told that there would be a delay of seven to ten days to get a GP letter regarding his request for the postponement.

[37]The contents of his email therefore suggested that he knew what he was asking his GP to provide and that matters were already ‘in hand’ and he would be able to provide that evidence to the tribunal. There was nothing within that documentation to suggest that he was unsure what was required of him.

[38]He was not in compliance with Judge Aspinall’s order which had the deadline of 17 September 2024. He has still not complied with the terms of that order.

[39]There was then the proposal by Judge Batten to strike out with a request for the claimant’s response to that proposal. The claimant did eventually comply but after the deadline that he was given. He indicated in his response (page 60 of the bundle) that he was in the process of getting medical evidence albeit there were no specifics set out as to what he was doing or when that evidence would be provided. Again, there was no indication within that documentation that he was unsure about what was required. He went on to request a hearing to deal with any proposed strike out.

[40]Following on from that there was correspondence from Judge Cookson at the end of 2024 with an indication that the claimant should let the tribunal know if he needed more time to comply with the requirements of the tribunal. This directed a response to Judge Cookson’s enquiries by 2 December. There was no response by the claimant to that correspondence either by 2 December or otherwise. In any event, today’s hearing was listed by letter dated 7 January 2025, today being the 9 April 2025 and it was made clear in the notice of hearing that the agenda for today was to determine the strike out application that the respondent had made.

[41]The tribunal then heard nothing further from the claimant at all until yesterday, the day before the hearing, when a witness statement was provided and then this morning at around 6am or shortly thereafter, when a further written submission in response to the application was provided. The claimant explained his position in those documents but he did not attach any documentation to them which would demonstrate either compliance with the tribunal’s previous orders or concrete evidence of requests that he had made to his medical practitioners for the provision of the required medical evidence. Nor did the claimant provide a timeline or an indication of how soon he would be able to comply with that order. He indicated that NHS wait times had impacted upon his ability to comply. He also indicated that his medical condition had an impact on his ability to process information, organise himself and commit to pushing matters forward through the tribunal.

[42]It appears, on discussion with the claimant today, that the medical condition that we are primarily talking about is complex PTSD. I note that in the documents provided in the last 24-48 hours the claimant’s explanations have been somewhat vague and have provided little reassurance that the tribunal and the respondent will not be back here in a number of weeks or at some point in the future for similar reasons. In light of that, and having heard what the respondent had to say about it, I gave the claimant an opportunity to provide me with any relevant information that he wished. In particular, I asked him direct questions to try and fill in some of the gaps that I could see within the documentation.

[43]The extra information that I was able to obtain during the hearing included the matters set out in the paragraphs which follow.

[44]Firstly, the claimant indicated that he moved house from the Derby area to the North West of England at the end of 2023. However, I note that that in itself cannot be an explanation for the breach of the orders as it pre-dates the tribunal orders being issued and the deadline for compliance within those orders.

[45]The claimant also indicated (probably as a response to moving house) that he moved to a new GP’s practice. He confirmed that that had happened about four months ago. This would suggest that he moved doctors at the end of 2024/beginning of 2025. When asked, he confirmed that he had not actually contacted his new GP. He suggested that this was because he was not sure what he was asking for. I pause to note that the claimant did not provide any evidence of the requests that he made to his former GP’s practice for the medical evidence required by the tribunal. (The claimant’s own contemporaneous correspondence suggested that he had been in contact with his healthcare providers at that time). I don’t have any documents to show the requests he made to his old GP in the form of emails, letters, texts or even reference to phone calls or consultations. In those circumstances I simply do not know what efforts the claimant has actually made to contact either of the GP practices to get the information that the tribunal ordered him to provide.

[46]The claimant also indicated that he is unable to afford legal representation. This is a common situation in the Employment Tribunal.

[47]The claimant also indicated that he was somewhat estranged from family and friends and did not have the necessary ‘support network’ to get a lay person’s support, if only in the coordination and organisation of his tribunal litigation. He did indicate that he now has a partner but suggested that she would not be able to understand the case or support him in relation to it.

[48]When asked about his ongoing treatment, the claimant confirmed that his NHS treatment (in the form of CBT and EMDR) concluded more than a year ago. He confirmed that he paid for some further private counselling, which itself ended in January/February 2024.

[49]In light of the above, there is nothing in the information before me to suggest that the claimant needs or is undergoing active treatment such that his disability is impacting upon his ability to comply with the orders of the tribunal, even belatedly or incompletely.

[50]I enquired about the likely timeframe for any response from the GP if he made a request for evidence at this stage. Of course, not having dealt with this particular GP practice before, he is understandably unable to give me an indication as to when the tribunal could expect to see the GP letter that it has been waiting for since September 2024.

[51]That is the essence of the further information I gleaned this morning.

[52]What conclusions do I draw from all of the above? First of all I note that there is a lack of documentation to support the claimant’s submissions. I also conclude that there is an inherent lack of credibility to some of what the claimant has been saying to the tribunal given that there is an inconsistency between the written documents (which suggest that the claimant both knows what documents he needs to provide and is in the process of getting that information) and his oral representations during today’s hearing. At the hearing has said that he is unsure what is required and has not in fact contacted the medical professionals who would be able to provide the relevant information.

[53]There is nothing in what has been said to me to suggest that there is a genuine or satisfactory medical explanation for his complete failure to comply with the tribunal’s orders. I appreciate that complex PTSD (if present) is a serious condition (or can be) and that it can have an impact on a person’s ability to function at their full capacity. However, there is nothing before me to suggest the claimant is so completely disabled by the condition that he is unable to take steps in furtherance of the tribunal litigation. The claimant may be disorganised and he may struggle to meet deadlines but he is not completely incapacitated (given the information available to me.) His representations to me (both written and verbal) are those of an obviously intelligent man who understands the process of litigation. At the very least I am not clear what has been going on since the notice of hearing (for today’s hearing) was sent out to the parties in January 2025. The claimant has been clearly warned that there was a risk that his claims would be struck out today. I would have expected this to prompt some form of response from the claimant to prepare for today’s hearing and to make at least some effort to obtain evidence and information about what he has been doing to try to comply with the tribunal’s orders (even if incomplete). In reality, I am no further forward than the tribunal was in September 2024. The claimant says he is disabled and this impacts upon his ability to comply with orders but I only have the claimant’s own word for this. There is no independent evidence of any sort to substantiate this proposition. In reality, the claimant has been able to correspond with the tribunal, usually at the eleventh hour. He has given repeated assurances that he will provide the information required by the tribunal and has repeatedly failed to follow up on his assurances. He has provided too little, too late and without adequate explanation or justification.

[54]The question I have been faced with is whether the legal tests for strike out of the claim are satisfied and whether the claims should be struck out. Alternatively, whether I should provide the claimant with a final chance to put his case in order. Can I be reassured that there will be an improvement after today’s hearing such that the tribunal and the respondent will not find themselves back here at some point in the future, either dealing with noncompliance with this order or, indeed, difficulties and delays in providing evidence of disability in order to satisfy the requirements of section 6 of the Equality Act (or otherwise preparing the case for trial.)

[55]It is important to note that this is not a case which has been clearly pleaded. Once this particular hurdle is overcome, the tribunal will need the claimant to provide further particulars of the types of discrimination that he is alleging, details of the acts of discrimination that he relies upon. In essence, the tribunal and the respondent still need to know how he puts his case. The claimant will have to obtain evidence to establish that he was disabled within the meaning of the Equality Act at the time that the discrimination is said to have taken place.

[56]I also note that if the claimant had been unable to comply fully with the orders of the tribunal, I would expect to see some evidence of him ‘doing his best’ and making substantial efforts to comply with the tribunal’s orders, at least partially. In particular, I would have expected to see some attempts to comply in the last four months (if not before) given that the claimant had been given notice of today’s hearing at which strike out of his claim was to be considered.

[57]I note the contents of the respondent’s written submissions and the summaries of the claimant’s failures at paragraphs 14 and 27 in particular. I also note the summary of the legal principles as set out in the respondent’s skeleton argument in relation to the different limbs of the strike out test which I can apply. In short, I accept those summaries of the applicable principles.

[58]What conclusions have I reached? The first question is: are the breaches intentional or contumelious? Contumelious has a particular meaning in these circumstances, as referred to above.

[59]I have concluded that the breaches are intentional and/or contumelious. The claimant is a litigant in person but he is not exempt from at least showing that he is doing his best to move the case along (once he sets the ball rolling with a piece of litigation which he has chosen to pursue.) I am afraid that the claimant has done nothing, either in writing or in submissions to me today, to convince me that his breaches are anything other than either intentional or, at the very least, contumelious. That in itself would be sufficient for me to strike out the claim.

[60]The other limb to section 38(1)(d) is whether there has been an inordinate and inexcusable delay with a substantial risk of a fair trial not being possible, or of serious prejudice to the respondent. If I were not satisfied that there had been an intentional or contumelious breach I would, in any event, find that there was inordinate or inexcusable delay which either seriously prejudiced the respondent or posed a substantial risk of a fair hearing not being possible. There is a clear potential impact on the quality of the evidence in this case given the length of delay that there has been. Even if the claimant were to comply with tribunal orders pretty swiftly after today, there will still be further delay in getting the case anywhere near clarified so that the relevant witnesses can be interviewed and the relevant evidence captured by the respondent.

[61]As a result of the claimant’s failure to comply with Judge Aspinall’s order from September of last year, there has been a minimum of a seven month delay in this case. There will be a further delay to get compliance with any unless order that I could make today. Even further delay is built into the system once that order has been complied with in terms of clarifying the case, getting the evidence together, preparing for a trial and, getting a final hearing listed within a reasonable timeframe. I am told that three major witnesses who would be crucial to the respondent’s case are no longer employed by the respondent. That is not necessarily a barrier to them attending (if a witness order can be served) but it is not a good position for a respondent to find itself in when trying to defend itself at a final hearing. It does have a significant impact on the respondent having a fair trial and being able to fairly defend itself. Even if those three witnesses are ordered to attend, the delay is likely to mean that the quality of the evidence they can provide is diminished. Indeed there is said to be a risk that they are now untraceable. However, I do not base my decision squarely on that latter point. However, one of the features of a ‘fair trial’ is that it is a trial within a reasonable time frame. Even if everything went well after today’s hearing, the case is not going to be listed for a final hearing before the second half of 2026, if not into 2027 (depending on the medical position.) At that point the events under consideration will be over three years old.

[62]In addition, in the absence of evidence that the claimant’s current PTSD symptoms will improve and that his levels of organisation and commitment to the litigation will similarly improve, it is by no means reasonable to assume that the litigation is likely to proceed to a final hearing without further delays.

[63]As a result of the above, I have decided to strike out the claim pursuant to Rule 38(1)(d) on the basis that it has not been actively pursued. I also note that there has been repeated non-compliance with a Tribunal’s order and this would, alternatively, give grounds for strike out under rule 38(1)(c). There has been a deliberate and persistent disregard for the Tribunal’s orders. I have concluded that that there is no fair alternative to strike out, bearing in mind that both parties have a right to a fair hearing and also bearing in mind the content of the tribunal’s overriding objective. This includes the tribunal dealing with matters proportionately and allocating a fair proportion of its resources to each of the cases that come before it. Approved by