Mr I Okiche v Double Check Security Group Ltd: 3200405/2024
JUDGMENT
[1]The claimant’s claims under case number 3200405/2024 are struck out pursuant to Rule 38(1)(d) of the Employment Tribunal Procedure Rules 2024.[2]The claimant shall pay to the respondent the sum of £1,008.00 in respect of the respondent’s costs incurred attending the preliminary hearing on 17 January 2025.REASONS
[1]This case was listed for today's hearing by order of Employment Judge Park at a hearing on 17 January 2025.[2]The claimant attended today and represented himself. The respondent was represented by Mr Joshi of Counsel.[3]I had a bundle of documents running to 93 pages, I also had written submissions from the claimant along with submissions from the respondent both in respect of the strike out application and their application for costs. There were a number of other documents but they are not relevant because of the decisions I have made in relation to strike out.Issues
[4]The matters I had to determine were set out by Employment Judge Park and in relation to strike out those are whether the claimant’s claims should be struck out for his failure to comply with the tribunal's orders, which in fact I made on 12 August 2024, or that the claim has not been actively pursuedLaw
[5]I set out below a brief description of the relevant rules and law.[6]The relevant parts of Rule 38 are as follows Striking out 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—… (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued…[7]The case law decided under the 2001 Rules continues to be relevant to strikeouts under rule 38(1)(d). In Evans and anor v Commissioner of Police of the Metropolis 1993 ICR 151, CA, 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 in 1998) governed the equivalent power in the High Court, as set out by the House of Lords in Birkett v James 1978 AC 297, HL. Accordingly, a tribunal can strike out a claim where: 7.1. there has been delay that is intentional or contumelious (disrespectful or abusive to the court), or 7.2. there has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the respondent.[8]The first category is likely to include cases where the claimant has failed to adhere to an order of the tribunal. As such, it overlaps substantially with the tribunal’s power under rule 38(1)(c) to strike out for non-compliance with tribunal rules or a tribunal order.[9]The second category requires not only that there has been a delay of an inordinate and inexcusable kind, but that the respondent can show that it will suffer some prejudice as a result.[10]The relevant Rule in relation to the respondent’s costs application is as follows, When a costs order or a preparation time order may or must be made 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party… (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted… (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned…Findings of fact
[11]I make the following findings of fact.[12]The claimant's claim was presented on 19 February 2024.[13]A case management hearing took place before me on 12 August 2024. I ordered that there be a preliminary hearing to consider the respondents application that the claimant be ordered to pay a deposit as a condition of continuing sum all of his allegations on the basis that they had little reasonable prospects of success.[14]I ordered that in preparation for that hearing the respondent should disclose any documents it wished to rely on to the claimant by 10 January 2025 along with any written submissions and authorities upon which they were going to rely.[15]At the same hearing I made orders for the final hearing which should have taken place in April 2025. Those were the usual orders relating to creation of the hearing bundle and witness statements.[16]The respondent prepared for and attended the hearing on 17 January 2025. The claimant did not attend. Prior to commencing the hearing Employment Judge Park asked the tribunal administration to contact the claimant. The claimant has not provided a telephone number and therefore he was emailed. Employment Judge Park quite properly delayed the start of the hearing for an hour. By 11:00 AM the claimant was not in attendance, and he had not responded to the tribunal’s correspondence. It was decided that the hearing should continue in the claimant's absence. Mr Joshi, who attended on behalf of the respondent, confirmed that the claimant had not replied to correspondence about the final hearing bundle and furthermore, despite being reminded about the hearing on 17 January 2025, the claimant had failed to respond to any communications about that hearing.[17]Rather than deal with the question of a deposit order, which was the reason the hearing was originally scheduled, the Judge decided to issue the claimant with a strike out warning.[18]Employment Judge Park said that the reasons for considering striking out the claims were as follows: 18.1. the claimant did not provide his documents to the respondent by 6 December 2024, 18.2. the claimant had not been in contact with either the respondent or the tribunal since 30 August 2024, which included not replying to any correspondence sent to him by the respondent, and 18.3. the claimant did not attend the hearing on 17 January 2025 and did not notify the tribunal he was unable to attend or provide a reason for nonattendance.[19]The claimant was advised that if he wished to object to the claims being struck out, he must inform the tribunal of his reasons or request a hearing by 3 February 2025.[20]The claimant wrote to the tribunal on 2 February 2025.[21]On the question of his non-attendance on 17 January 2025 the claimant said as follows “I am very emotionally and mentally drained, feeling hurt, occasionally hopeless that the lies said by the mentioned respondents could jeopardise the process leading to a huge miscarriage of justice (this impacted also in my ability to attend that hearing for a deposit order…)…”.[22]At today's hearing, when pressed, the claimant said that he was unable to attend the hearing on 17 January 2025 because he was emotionally and psychologically unable to. That is not quite the same as what he said in writing on 2 February 2025 where he simply refers to his emotional state impacting on his ability to attend. He did not say in terms that he could not attend. The claimant gave no explanation as to why, if he was unable to attend, he did not tell the tribunal in advance of the hearing nor make any application to postpone the hearing.[23]Furthermore, the claimant had until today to provide any supporting documentation he wished to rely on in respect of his non-attendance, but he has provided none. There were no medical or GP notes and there is no supporting statement or any other evidence whatsoever.[24]I find that the claimant’s reference to his emotional or psychological state is vague and amounts to no more than an ex post facto justification for his simple failure to attend. In my judgment he made a decision not to attend, was surprised by the strike out warning and then sought to justify his non-attendance on entirely spurious grounds.[25]Significantly, the claimant’s submissions of 2 February 2025 say nothing about his non-compliance with the tribunal’s orders or his failure to reply to correspondence and in fact seeks to blame the respondent because what he refers to as “key respondents” having failed to attend the original preliminary hearing (but as I pointed out to him there is only one respondent, and they did attend that hearing).Discussion and conclusions
[26]I turn now to my conclusions.[27]In this case the claimant has, without any or any reasonable explanation failed to comply with the employment tribunal’s orders in relation to preparation of this case which has meant that the hearing scheduled for April 2025 had to be postponed.[28]The case is now 18 months old and is no closer to preparation than it was when it started. The claimant has provided no explanation as to his failures to comply with orders or his failure to reply to correspondence whether from the tribunal or the respondent.[29]There is no real explanation from the claimant as to why he failed to attend the hearing on 17 January 2025. I do not, as I have set out above, accept his explanation that he was too emotional to attend and, in any event, even if he was coma there is no explanation for him failing to apply for a postponement or explain to the tribunal the position he was in. I take on board that he is a litigant in person, and I also take on board that dealing with the employment tribunal can be difficult, but in my judgment the claimant’s behaviour has been quite deliberate leading to significant delay. The orders of the tribunal have been perfectly clear, the respondent has been patient and has explained along the way to the claimant what the claimant needed to do and he has simply refused to do it.[30]It is telling that the claimant has made no effort in readiness for today's hearing to bring any evidence of his failures, or what he might refer to as his inability to attend the hearing on 17 January 2025, although he has had around six months to obtain such evidence.[31]I am satisfied that the claimant's failings are intentional. I am also satisfied that he meets the standard required by both limbs of Rule 38(1)(c) that is that the delays in this case caused by the claimant’s failure to comply with case management were deliberate, and that his ignoring of the tribunal's orders is disrespectful to the tribunal given the complete lack of any reasonable explanation.[32]For those reasons I consider it appropriate to strike out his claims.[33]The respondent had already sent in a written application for costs in respect of the claimant’s non-attendance on 17 January 2025.[34]The application is essentially that the non-attendance was unreasonable behaviour.[35]I need say little more than what I have set out above in finding that I have no doubt that the claimant's behaviour was unreasonable. As I have found, I do not accept his explanation about his emotional state but even if I am wrong about that, his complete failure to advise the tribunal and the respondent that he would not be attending, even if he did not understand he could seek a postponement, was wholly unreasonable as a result of which the respondent has incurred costs unnecessarily. Therefore I award the costs sought by the respondent in respect of their attendance at that hearing as set out in the judgment above. Approved by: