Mr C Nisbet and others v Fincube Ltd: 2410270/2022
JUDGMENT
[1]The claims brought on behalf of Mr Ikin, Mr Nutter and Mr Lunt are struck out on the basis that the claims appear to be an abuse of process and, alternatively, under Rule 37(1)(c) and (d).[2]The claim brought by Mr Nisbet is struck out under Rule 37(1)(c) and (d).[3]The respondent’s application for costs fails.REASONS
[1]This case came before me for a five-day final hearing, commencing on 11 November 2024. None of the claimants attended, and I have provided written reasons of my own volition, partly in view of that fact, and partly for reasons which are explained below.[2]In broad summary, Mr Nisbet presented a claim in December 2022 alleging unauthorised deductions from wages in a sum amounting to over £130,000. When he completed the claim form, he included the other three named individuals as additional claimants, stating that the respondent also owed them money, albeit in smaller amounts. No further details of their claims were given.[3]As a result of Mr Nisbet naming the additional claimants, ‘claims’ in their name were automatically generated and given claim numbers. There is no requirement for a named claimant to confirm that they have authorised the claim being brought in their name, or even that they are aware of it.[4]A response was presented, and the respondent defended the claims on various grounds. The key substantive ground, at least in respect of Mr Nisbet, was a denial that he was an employee (or a worker) and therefore that the Tribunal had jurisdiction to deal with the claim.[5]The case was listed for a case management hearing, which ultimately took place in front of Employment Judge Parkin on 17 August 2023. Mr Nisbet attended. None of the other claimants attended, although Mr Nisbet asserted he had the authority to bring the claims on behalf of each of them. The respondent was represented by counsel on a direct access basis.[6]Employment Judge Parkin took time to clarify the legal issues in the claim and to make case management orders. In respect of the additional claimants, he ordered that they must each (amongst other matters) inform the Tribunal by 15 September 2023 whether they had authorised Mr Nesbit to bring the claim on their behalf, whether he was authorised to continue to represent them.[7]The case was listed for a 5-day final hearing, to start on 11 November 2024. Detailed case management orders were made to enable the parties to prepare for that hearing. The parties were required to inform the Tribunal whether the matter was ready for hearing (and whether particular key case management orders had been complied with) by 23 September 2024.[8]It appears from the face of the file that Mr Nisbet has done absolutely nothing from the date of the case management hearing. Mr O’Callaghan tells me that the respondent is also unaware of Mr Nesbit taking any steps towards complying with any of the case management orders. He acknowledged, in view of his duty to the Tribunal, that the owner of the respondent has relocated abroad and that there was a possibility that documents sent by post may not have been received. Any documents or correspondence sent by email, however, would have been received. The framing of the case management orders meant that the initial obligation was very much on the claimants, both as to the additional claimants confirming that their claims were authorised and were being pursued, but also as to some initial disclosure of alleged recordings which Mr Nesbit was ordered to complete.[9]The respondent has also done absolutely nothing in relation to complying with the orders or preparing for the hearing between 15 September 2023 and 31 October 2024. It did not, as might have been expected, chase Mr Nesbit for compliance, nor bring his non-compliance to the attention of the Tribunal.[10]On 31 October the respondent’s owner, Mr Rowles-Davies, wrote to the Tribunal informing the Tribunal about the non-compliance detailed above, and applying to strike out the claims. This email was not copied to Mr Nesbit. By email dated 6 November 2024 (Wednesday) the Tribunal forwarded Mr Rowles-Davies email to Mr Nesbit and asked him to reply by return. The following day, at the direction of Employment Judge Holmes, the Tribunal wrote to both parties informing them that the claims would not be struck out because the application was late and had not been copied to the claimants. It was confirmed that the hearing would remain listed for today, and that the claims were at risk of being struck out if the claimants failed to participate or were not ready to participate. Today’s Hearing[11]Neither Mr Nesbit nor any of the additional claimants attended today. I delayed the start of the hearing and asked my clerk to call Mr Nesbit to make enquiries. Two calls were unanswered. I started the hearing at 10.25am, a delay of 25 minutes. There was no attendance nor communication of any sort from Mr Nesbitt. The additional claims[12]Mr O’Callaghan asked me to strike out the initial claims on the basis that the information required to by provided by Employment Judge Parkin had not been provided. That gives rise to the discretion to strike out under 37(1)(c). He also said that the claims had not been actively pursued (37(1)(d)).[13]I agree that both of those thresholds are met. However, there is (as Mr O’Callaghan also recognised) something more fundamental here. I am not satisfied that the Tribunal can be confident that Mr Nesbit ever had the authority to pursue these claims on behalf of the additional claimants at all. Although postal addresses have been provided, and some correspondence will have been sent to them, I cannot be entirely confident that the additional claimants even know about the claims in view of the complete lack of engagement from any of them. In those circumstances, I am satisfied that these claims constitute an abuse of process and cannot proceed as the Tribunal has no jurisdiction to entertain them.[14]In the alternative, I would strike the claims out, in the circumstances described above under rules 37(1)(c) and (d). It is for the claimants to advance their claims and they have not done so. Their default means that this hearing has been ineffective and there is nothing to suggest that a fair trial could happen in the future.[15]Employment Tribunal judgments are public documents and I consider it would be wrong to produce a Judgment, without reasons, which might give the impression that the additional claimants had pursued a claim which had been struck out. Such a public Judgment could be damaging to their reputations and it is therefore important to record, as I have done, that there is nothing to suggest they have sanctioned the claims being brought on their behalf by Mr Nesbit. Mr Nesbit’s claim[16]I have power under Rule 47 to dismiss the claim or to proceed in a party’s absence in the event of non-attendance. I did not consider it feasible to proceed in Mr Nesbit’s absence as the case is simply not ready to proceed in any way. Mr O’Callaghan invited me to proceed to hear the respondent’s strike out application rather than simply dismiss the claim for nonattendance, and I agreed to do so.[17]Mr O’Callaghan invited me to strike out Mr Nesbit’s claim under each of the sub-sections of Rule 37. In his eyes, this is a full house. I first considered which, if any, of the sub-sections was properly engaged on the facts of the case.[18]I decline to make a finding that the claim was scandalous, vexatious, or had no reasonable prospects of success (37(1)(a)). There was no suggestion from Employment Judge Parkin, who had the benefit of hearing from both sides, that this was a case where a public preliminary hearing on merits would be appropriate. I have seen no evidence, whether in documentary or witness statement form, and I cannot conclude that the claim, if properly prosecuted, would have had no reasonable prospects of success. I also have nothing on which to base a conclusion that the claim itself (as opposed to Mr Nesbitt’s later conduct) was scandalous or vexatious.[19]I also decline to make a finding that the proceedings have been conducted in a way which is scandalous, vexatious or unreasonable (37(1)(b)). This is a finer decision, and it certainly may be the case that Mr Nesbit’s actions can be properly characterised in the way described. However, without any explanation from him I do not belief that I am in a position to draw such a conclusion. There may be good reason – for example related to his health – why the claim has not been pursued. There are other parts of Rule 37 (and indeed, Rule 47) which are more apt to deal with the present circumstances.[20]I do find, and it is plain and obvious, that Mr Nesbit has failed to comply with Orders of the Tribunal. Rule 37(1)(c) is engaged. I also find, in the circumstances I have recounted, that he has failed to actively pursue his claim, and so Rule 37(1)(d) is engaged too.[21]Rule 37(1)(e) provides that the Tribunal may strike out the claim if a fair hearing is no longer possible. Although this is a separate and specific ground, the question of whether a fair hearing is still possible is a key consideration to be applied by a Tribunal deciding to exercise its discretion to strike out where one of the other grounds is made out (see Leeks v University College London Hospitals NHS Foundation Trust 2024 EAT 134 as to the interaction.) In this case, I have found it unnecessary to rely on 37(1)(e) as a separate ground, given, potentially, the higher test that applies to the consideration of whether a fair trial is possible.[22]I take full account of the clear an unequivocal guidance provided in numerous appellate authorities (and Presidential Guidance) to the effect that:22.1 Strike-out is a draconian sanction;22.2 It must only be used where proportionate, and must not be used to penalise case management defaults which are capable of being remedied;22.3 The key question is whether a fair trial remains possible.[23]I am satisfied in this case that strike out is proportionate. The trial was due to take place this week. That cannot happen, both because of the claimant’s non-attendance, but also because of his failure to comply with Orders intended to ensure that the case was prepared properly. It is the responsibility of the claimant to pursue the claim and, for whatever reason, Mr Nesbit has allowed this claim to get to the point of trial without taking a single step to do that since the case management hearing. He had notice of this hearing as the dates were set at the case management hearing he attended. He should also have had notice of the respondent’s strike out application and the Tribunal’s decision that the hearing would proceed today. If he has not, then that can only be because he has not kept the Tribunal informed of changes to his contact information. In my view there can hardly be a clearer case where strike out under Rule 37(1)(c) and (d) is appropriate and proportionate. Costs application[24]Following my decision on strike out, Mr O’Callaghan made an application for costs on behalf of the respondent. The respondent has used counsel on a direct access basis. It seeks to be awarded costs for attendance at the preliminary hearing in August 2023, for advice given thereafter, and for attendance today (including preparation and advice given over the weekend). I will not set out the sums, but I considered them all to be reasonable and reasonably-incurred.[25]The application, made against Mr Nesbit only, is put on the basis set out in Rule 76(1)(a) – that Mr Nesbit has acted vexatiously, abusively, disruptively or otherwise unreasonably in either bringing the claims, or in the way the claims have been conducted.[26]I would be prepared to find that Mr Nesbit has acted abusively in bringing claims on behalf of other claimants where he has been either unable or unwilling to substantiate that he had the authority of those individuals to do so. In terms of his own claim, I do not find that his conduct in bringing the claim was of the nature described, but I do find that he acted unreasonably (at least) in the way he conducted the claim by failing to comply with case management orders and by failing to pursue the claim.[27]I must therefore consider whether to make the order sought by the respondent. I remind myself that an award of costs in the Tribunal is the exception rather than the rule.[28]Having considered the matter carefully, I decline to make the order sought. The claimant and Mr Rowles-Davies are both, effectively, litigants in person. The claimant is not the only party at fault here. It was incumbent on the respondent to also take steps to prepare for the final hearing and, to the extent that it was unable to do so due to Mr Nesbit’s non-compliance, to draw that to the Tribunal’s attention at a much earlier stage. It is possible that, if that had been done, Mr Nesbit would have been prompted into action. If not, then the case would eventually have been struck out (if not withdrawn) prior to it coming before the Tribunal for a 5-day final hearing. The costs the respondent incurred in instructing Mr O’Callaghan at late notice need not have been incurred at all. Further, the earlier costs were incurred prior to the point when it became apparent that Mr Nesbit had disengaged from the claim, at a point where I cannot find that he was acting unreasonably. Mr O’Callaghan has not sought to suggest that there were particular costs attributable to the inclusion of the additional claimants.[29]I also take account of the fact that I have been unable to hear from Mr Nesbit as to his reasons for acting as he has, nor as to his means. Again, if the respondent had been more proactive it is more likely that Mr Nesbit would have been put in a position where he was able to make representations about those matters. It may be that he has failed to pursue the case for good reason – perhaps serious ill-health – and that his only fault has been to fail to realise (as a litigant in person) that he ought to have told the Tribunal and the respondent that he wished to withdraw the claim. In these circumstances, there is a real possibility, in my Judgment, that an award of costs against Mr Nesbit would represent an injustice.