Mr D Quarm v The Commissioner of Police of the Metropolis: 3200639/2021
EMPLOYMENT TRIBUNALS
Case No 3200639/2021
Between
Mr D QuarmClaimantThe Commissioner of Police of the MetropolisRespondent
Before
Employment Judge ReidIn person for claimantDate 12 October 2021
JUDGMENT
[1]All the Claimant’s claims covered by this claim number (claims under s13 Equality Act 2010 (direct race discrimination), s27 Equality Act 2010 (victimisation) and s47B Employment Rights Act 1996 (protected disclosures – detriment)) are struck out under Rule 37(1)(a) (no reasonable prospects of success) of the Tribunal Rules 2013.[2]The Tribunal does not find that all or any of the Claimants’ three claims were totally without merit (for the purposes of any application for a civil restraint order)
REASONS
Findings of fact
[1]The Respondent made an application on 6th April 2021 for a strike out of this claim under Rule 37(1)(a) of the Tribunal Rules 2013 (on the basis of no reasonable prospect of success) or in the alternative for a deposit order under Rule 39, based on the contents of its response dated 6th April 2021.[2]The Claimant made a counter-application by letter dated 28th April 2021.[3]I was provided with an agreed electronic bundle for today’s hearing plus a skeleton argument from both parties plus a bundle of authorities from each.[4]The Claimant also provided a written statement about his means, relevant to the deposit order application plus a list of issues and agenda.[5]I heard oral submissions from Mr De Silva on behalf of the Respondent and from the Claimant. Relevant law Strike out[6]Rule 37(1)(a) of the Tribunal Rules 2013 provides that a Tribunal may strike out all or part of a claim or response on the grounds that it has no reasonable prospect of success (the other grounds in Rule 37(1) were not relied on by the Respondent).[7]The task of the Tribunal is to consider with care the pleaded case and whether on a fair assessment it or any part of it passed the threshold of presenting a reasonably arguable case, taking it at its highest.[8]In general a discrimination claim should not be struck out except in the very clearest circumstances, because they are fact sensitive and it is a matter of public interest that such claims are heard (Anyanwu v South Bank Students’ Union [2001] IRLR 305).[9]A whistleblowing claim should not usually be struck out where the central facts are in dispute (Ezsias v North Glamorgan NHS Trust [ 2007] ICR 1126).[10]I was referred by both parties to the propositions in Cox v Adecco EAT 339/2019 including as to taking the Claimant’s claim at its highest; further, the Claimant is a litigant in person so it is also important to analyse what his claim in fact is, in the light of the pleadings and other documents and to consider whether in fact what may be required is an amendment instead.[11]In considering the Respondent’s application and the Claimant’s counter-application I have taken into account that this claim must be viewed on its own merits and that consideration should not be clouded by the fact that the Claimant has brought multiple other claims against the Respondent; the test under Rule 37(1)(a) should not be applied through the prism of the other claims in assessing what are the reasonable prospects of this particular claim ie just because he has brought and not succeeded on other claims does not mean that this particular claim has no reasonable prospects of success. The Claimant’s claim presented on 22nd February 2021[12]The Claimant’s claim relates to a single detriment, the claimed delay by the Respondent in dealing with an application for a Deed of Postponement which the Claimant needed to obtain from the Respondent in order to enter into a new mortgage with Barclays; the entity who needed to issue the Deed was the Mayor’s Office for Policing and Crime (MOPAC) and the Respondent had to liaise with the Mayor’s Office to get the Deed signed for the Claimant.[13]In his claim form the Claimant also referred to the Respondent also creating problems by asking for the return of a previous Halifax Deed before the new Barclays one could be issued to him but he confirmed at this hearing that he now understood the sensible rationale for that request (although he had not been aware of that rationale at the time) and does not say in his draft list of issues that that is an additional detriment. There is therefore only one detriment claimed – the delay in providing the Barclays Deed.[14]The Claimant says firstly that the delay was an act of direct race discrimination under s13 the Equality Act 2010 because he is a black African man.[15]He secondly says it was an act of victimisation under 27 Equality Act 2010 on the ground of past protected acts – the Respondent accepts that there were protected acts so it is not in issue that there were such acts.[16]He thirdly says it was a detriment under s47B Employment Rights Act 1996 on the ground of having made protected disclosures – the Respondent took issue with him not identifying what these disclosures were but the Claimant has now provided a list in his skeleton argument (para 18-21) of what he says the relevant protected disclosures were.[17]The Claimant contacted ACAS prior to presenting this claim on 1st February 2021 and presented his claim on 22nd February 2021 – these dates are significant in the context of the detriment claimed in the claim form.[18]After presentation of the claim form the Respondent took further steps to chase the obtaining of the Deed from the Mayor’s Office and provided the Claimant’s Deed to Barclays solicitors Enact on 18th March 2021. Findings of fact The timeline[19]The Claimant in his previous claim (3202563/2020) referred (para 24) to an upcoming need to obtain a new Deed, this time for a Barclays mortgage. He did not give any timescale but did say that if there was undue delay then Barclays might withdraw their offer.[20]On 25th January 2021 (page 70) the Respondent received the first request for the new Deed from Barclays solicitors Enact – it did not refer to any deadline; Enact had been told by the Claimant that the offer expired in March 2021 (page 126) but Enact did not pass that on to the Respondent.[21]The Respondent’s solicitors contacted the Claimant on 27th January 2021 to clarify what was needed and to ask if there was a deadline (page 76).[22]The Claimant replied on 27th January 2021 to clarify that a new (second) Deed was required and saying the deadline was 1st February 2021 (page 76) – he had told Enact earlier the deadline was March 2021 but gave a different deadline to the Respondent which did not relate to what he had apparently been told by Barclays was the deadline – it was therefore a deadline he had decided on himself.[23]The Respondent’s solicitors responded (page 75) that more time was needed (given the deadline was now only a few days away) and suggested that the Claimant ask Barclays for an extension of at least two weeks to 15th February 2021 ; this was reasonable as the Respondent was going to have to co-ordinate with the Mayor’s Office, get the Deed sealed (if necessary) and it was not a document it could just issue itself.[24]The Claimant responded on 29th January 2021 (page 78) to say that Enact would be in touch but not saying anything further about any deadline, whether that was the existing one not having been changed or about any new one he had now agreed with Barclays; he said Enact would be in touch ‘in due course’ which was inconsistent with a concern about a deadline.[25]On 1st February 2021 Enact contacted the Respondent confirming a new Barclays Deed was required (page 84) and without referring to any deadline; this was the same date that the Claimant contacted ACAS (by now only some 7 days after the Respondent first heard from Enact about issuing the new Deed and some 5 days after the Claimant had clarified a new Deed was required).[26]The Respondent contacted the Mayor’s Office on 8th February 2021 to get the Deed signed and chased again on 18th February 2021 (page 92,89).[27]The Claimant presented his claim on 22nd February 2021.[28]Enact provided the Deed to the Respondent again on 23rd February 2021 (page 83) with no reference to a deadline; on 1st March 2021 Enact again made no reference to a deadline (page 87).[29]The Respondent chased the Mayor’s office further on 24th and 26th February and 3rd March (pages 89,88).[30]The Respondent obtained the signed Deed from the Mayor’s office at a meeting on 15th March 2021, provided it to the Respondent’s solicitors on 17th March 2021 (page 117) and it was sent to Enact on 18th March 2021 (page 119).[31]Enact’s reply on 18th March 2021 (page 121) was inconsistent with any concern about a deadline simply saying that the completion date would be notified – this in turn was consistent with Enact not being aware of any real missed deadline or any problems with the re-mortgage going ahead – the Claimant had already presented his claim form around 3 weeks previously but even some 3 weeks later Enact was not identifying there was a deadline problem.[32]The Claimant says (ET1 para 24) that the Barclays offer was due to expire on 1st March 2021 but that is not a deadline he had communicated to the Respondent or a deadline Enact was telling the Respondent about – Enact were aware of it as the Claimant had told them but they did not pass it on or alert the Respondent to any problems with the offer possibly being withdrawn; Enact were aware of it but apparently not concerned about it.[33]Further (para 24 ET1) the Claimant only contacted Barclays to ask for an extension on 19th February 2021 around 2 weeks after the Respondent had suggested obtaining one, inconsistent with having been in fact concerned from the beginning of February 2021 that he was going to miss a deadline.[34]Taking the above timeline into account the Respondent was not aware of any deadline before the Claimant presented his claim, except the Claimant’s own 1st February 2021 one, though it was aware that delays should be avoided; it suggested the Claimant obtain a 2 week extension but the Claimant did not come back to say either way whether he had or he hadn’t and it was reasonable for the Respondent not to follow up further as it was for the Claimant to obtain any needed extension (though in fact one was not needed if the deadline was 1st March) and to keep an eye on the deadline, notifying the Respondent as appropriate.[35]The Respondent was responding in reasonable timescales to the Claimant and to Enact.[36]The Claimant appeared to have decided that a claim was in the offing on 1st February 2021 the date of the only deadline he had communicated to the Respondent (even though he knew in his head that the deadline was in fact March 2021 – as he had told Enact this); however he delayed a further two weeks to ask for an extension from Barclays inconsistent with thinking there was already a real problem by 1st February 2021 and that problem possibly involving a new Tribunal claim. 37. 22nd February 2021 when the claim form was presented was around 4 weeks after the Respondent was first contacted by Enact about the new Deed and the Respondent had not been inactive in the interim but had replied to correspondence from the Claimant and Enact and had referred the Deed to the Mayor’s Office on 8th February 2021 chasing it again on 18th February 2021.[38]The factual dispute raised in these applications is the apparent dispute about how much of the charging order the Claimant had already repaid but the actual amount outstanding is not relevant to the Claimant’s claim.[39]The Claimant says in his skeleton (para 25) that motive cannot be identified on the papers alone but in order to get to why the claimed detriment occurred, there has to be a detriment in the first place.[40]This is not a case where the core of the claim is disputed facts (Ezias) or turning on facts (Cox).[41]The Claimant does not say in his claim form that he told the Respondent about a 1st March 2021 deadline - in submissions he said in effect that the Respondent should have worked on the basis of its own suggested 2 week extension and dealt with the matter with that in mind but it was reasonable for the Claimant to ask for the extension and to tell the Respondent of deadlines given it was his mortgage application – the Claimant was apparently aware from at least 14th January 2021 of a March 2021 deadline but kept it to himself (apart from telling Enact who did not pass it on or behave in a way to alert the Respondent to any deadline/timing issues).[42]The first the Respondent heard about the 1st March 2021 deadline was by way of service of the Claimant’s claim on it by letter dated 8th March 2021.[43]The Claimant was on the one hand contacting ACAS on 1st February 2021 but on the other hand not contacting Barclays to ask for an extension until 19th February 2021 , the latter inconsistent with in fact being seriously worried about missing a deadline until that point or being seriously concerned about his finances.[44]The Claimant’s claim was presented in the middle of the history and did not therefore take into account the events occurring after, namely a further period when the Respondent was chasing the Mayor’s Office as set out above and the Deed ultimately being provided – even if he was able to amend his claim to take into account these subsequent events there is no reasonable prospect that he could show that the steps taken by the Respondent postdating the claim were any different to those steps taken before he presented his claim ie the Respondent reacting within a reasonable timescale to the correspondence with the Claimant, with Enact and with the Mayor’s office and thus trying to progress obtaining the Claimant’s Deed – the alternative of an amendment to his claim to encompass post claim further acts does not therefore make the claim have reasonable prospects of success.[45]Likewise the amendment of his claim to add the Mayor’s Office as an additional Respondent would not make the claim have reasonable prospects of success as it too was unaware of any particular deadline and although needed chasing did not delay in responding to requests beyond a reasonable point.[46]There is therefore no reasonable prospect that the Claimant can show that there was an unreasonable unethical delay by the Respondent in obtaining the Deed, which is the detriment claimed.[47]The Respondent accepts that there were protected acts.[48]The Claimant has now given details of what he says are the relevant protected disclosures and the Respondent’s initial point about lack of detail is not a factor in this overall assessment as it is a matter which either has or could be dealt with by further particulars and is not a factor justifying a strike out.[49]As regards the motive for the claim for direct race discrimination, the Respondent’s documented account of what it did to progress the new Deed for the Claimant does not give rise to a reasonable prospect of success of claiming that the burden of proof should shift to the Respondent because there is no reasonable prospect, even if detriment by way of delay was established, that the Claimant can show facts from which the Tribunal could decide that there was a contravention of the Equality Act 2010.[50]In addition, there is not a reasonable prospect that even if detriment were established, that the reason was his previous Equality Act claims or his previous protected disclosures – he had previous claims and has identified the protected disclosures and whilst acknowledging that he felt that it was going to be the same story again with delay problems as had happened with the previous Halifax Deed, he decided that it was the same old story at the latest on 22nd February 2021 before the 1st March deadline had in fact expired, that deadline not being one the Respondent was aware of or Enact were saying they were concerned about.[51]I take into account that it is rarely appropriate to strike out a discrimination or whistleblowing claim (Cox) and that especial care must be taken.[52]However looking at all the above factors in the round and taking into account the constituent elements of each of the Claimant’s three claims put at their highest, I conclude that each of the Claimant’s claims should be struck out under Rule 37(1)(a) of the Tribunal Rules 2013 on the basis that the entire claim (ie all three claims) has no reasonable prospects of success, giving weight to the fact that the Claimant would have to show there was a detriment before the issue of motive were relevant. Totally without merit application[53]The Respondent made an application for a finding that the Claimant’s claims were totally without merit (all three claims) referring to Nursing v Midwifery v Harrold [2016] IRLR 497 and the judgment in the Claimant’s previous claim number 3201225/2017 (paras 164-167, in the authorities bundle provided by the Claimant).[54]Given this is the Claimant’s 17th claim against the Respondent it is appropriate to consider this issue.[55]It is for the High Court to consider whether all or any of the three claims covered by this claim number are totally without merit, relevant to any civil restraint order application.[56]All three claims are firstly underpinned by the claimed detriment of unreasonable or unethical delay in dealing with the Barclays mortgage application which has no reasonable prospects of success – the three claims are not therefore distinguishable on the basis of the detriment claimed.[57]Secondly the issue is causation.[58]The totally without merit test is a higher threshold than the no reasonable prospect of success test under Rule 37(1)(a).[59]On balance and considering that that the claimed detriment underpins each of the three claims I conclude that none of the three claims were totally without merit; they certainly had no reasonable prospects of success but do not meet that higher threshold.[60]I therefore do not make a finding that any of the three claims were totally without merit. COSTS JUDGMENT (Reserved)
Relevant law
[1]The Tribunal makes an award of costs under Rule 76(1) (a) and (b) of the Tribunal Rules 2013 of £3,566 plus VAT, total £4,279.20 including VAT against the Claimant and in favour of the Respondent.[2]The costs are payable by the Claimant to the Respondent within 28 days of the date of this judgment.[1]Following the Tribunal’s judgment on the strike out application given orally on 8th October 2021 the Respondent made an application for costs under Rule 76(1)(a) (unreasonable bringing of the claims) and(b) (no reasonable prospect of success – in line with the strike out decision) of the Tribunal Rules 2013.[2]The Respondent claimed £10,375.20 (including VAT) being all solicitors’ fees since the commencement of the claim plus Counsel’s fees for drafting the response, for preparing for the preliminary hearing and for attendance at the preliminary hearing.[3]A costs warning had been sent to the Claimant on 7th October 2021 notifying him that the costs were in the region of £10,000 and inviting him to withdraw his claims. The letter set out the matters relied on in terms of the timeline of events.
Relevant law
[4]The relevant Tribunal Rules are Rules 74-84 of the Tribunal Rules 2013. Costs in the Employment Tribunal are the exception rather than the rule and there is a high threshold.[5]There is a two stage test, to consider firstly whether the relevant ground under Rule 76 is made out and then if it is, secondly whether the Tribunal should exercise its discretion to award costs.[6]The Tribunal may (but is not required to) take into account the paying party’s ability to pay in deciding whether to make a costs order and if so in what amount (Rule 84).[7]Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420 requires the Tribunal to consider all the circumstances as a whole. and McPherson v BNP Paribas [2004] IRLR 558 establishes the need to consider the nature, gravity and effect of the claimed unreasonable conduct.[8]In AQ Ltd v Holden 2012 IRLR 648 the EAT stated that the threshold tests governing the award of costs are the same whether a litigant is or is not professionally represented, but that the application of those tests should take this factor into account. However, a litigant in person can be found to have behaved unreasonably even when proper allowance is made for their inexperience and lack of objectivity.[9]I was referred to Opalkova v Acquire Care Limited EAT00562/2021 and the three key questions at para 24-25 in cases where the issue is one of no reasonable prospects of success and also one of unreasonable conduct in pursuing the claim (in that case considering a preparation time order).[10]There is also Presidential Guidance on costs (Presidential Guidance; General Case management – Guidance Note 7 Costs) which I have taken into account. Findings relevant to costs application Grounds for making a costs award on the three claims in the claim form[11]I have already struck out the three claims covered by this claim number under Rule 37(1)(a) of the Tribunal Rules on the basis that each of them has no reasonable prospect of success.[12]I have found that the claimed detriment of an unreasonable delay by the Respondent in dealing with the Claimant’s Barclays re-mortgage application has no reasonable prospects of success. The Claimant had decided by 1st February 2021 (the date he contacted ACAS) that he was likely to bring a claim; he is an experienced litigator in this Tribunal and aware that contacting ACAS would be the first step in any new claim. By 22nd February 2021 the date of claim the Claimant had already decided that there had in his view been an unreasonable delay by the Respondent in dealing with the obtaining of the new Deed for the Barclays re-mortgage. The first contact about the Barclays re-mortgage had been from Enact solicitors on 25th January 2021 and at no stage did the Claimant or Enact tell the Respondent before the claim form was presented that there was a deadline of 1st March 2021; in fact the Claimant told the Respondent that the deadline was 1st February 2021 (and even then only a few days before that date) and yet then delayed in asking Barclays for an extension until 19th February 2021; the ball was by then in his court to get that extension if one was required.[13]Taking the above findings into account the Claimant decided, when he had only recently a few days previously asked for an extension from Barclays (his account), to present this claim form claiming an unreasonable delay by the Respondent. It was by now only around 4 weeks since Enact had first contacted the Respondent about the Deed and the Claimant was aware that the Respondent was replying to correspondence and that the Deed had to be issued by the Mayor’s Office. He had been asked by the Respondent some two weeks previously to get an extension to what the Respondent had been told was the deadline (even though it apparently wasn’t the deadline). On his account he contacted Barclays for an extension on 19th February 2021 (a Saturday) and presented this claim the following Tuesday 22nd February 2021.[14]In submissions the Claimant appeared to suggest that he could not accept that the Respondent had not been aware of the 1st March 2021 deadline and thus of an urgency due to that, but the Claimant knew he had only told the Respondent about his own earlier deadline of 1st February 2021. He knew the Respondent had asked him to get an extension but knew he had not done so for around a further two weeks. He knew when he presented the claim form on 22nd February 2021 that he had only asked for the extension on 19th February 2021 during the previous weekend. Even if the deadline was 1st March 2021 he was still some days away from that deadline and in any event it was a deadline he knew the Respondent was not aware of.[15]Applying the three key questions in turn, the first question is whether when the three claims included in this claim form were presented did they objectively have no reasonable prospects of success (or was there a later stage when they ceased to have reasonable prospects). Taking into account the findings and conclusions in the judgment dated 8th October 2021 each of the three claims had no reasonable prospects of success when the claim form was presented.[16]Secondly the question is whether the Claimant knew when he presented his claim form that the three claims had no reasonable prospects of success. Taking into account the findings at paras 12-14 above I conclude that the Claimant was aware that his claims had no reasonable prospects of success when he presented his claim form, even if he did feel worried about a repeat of what he felt had gone wrong on the previous Halifax re-mortgage application. He had already decided on 1st February 2021 that he might bring a claim based on delay by the Respondent but knew the Respondent had written to him only a few days before reasonably asking him to ask for an extension and had then waited only a further around 3 weeks before putting in a claim form, and only towards the end of that period contacting Barclays for an extension (his account).[17]Thirdly, even if the Claimant had not known when he presented his claim form that the three claims contained in it each had no reasonable prospects of success, he should have done so because he could have sat down and looked at the chronology of what had happened, what he had told the Respondent, the fact that Mayors Office approval was required (something outside the Respondent’s control to an extent), the pattern of correspondence and his own actions in making sure that an eye was kept on any real deadlines. He is an experienced litigator in this Tribunal over a number of years and is not in the same position as an unrepresented claimant who has no knowledge or experience. In particular he has brought previous claims under the Equality Act 2010 and previous whistleblowing claims. If he did not know his claims had no reasonable prospects of success, it was because he was unable to see beyond his (unreasonable) perceived version of events and his very early assumption on 1st February 2021 when he contacted ACAS that there was going to be a problem with delay. In submissions he said that he was within his rights to be worried about the source of the delay when he made his claim and referred to examples of police wrongdoing being investigated more widely. However to get the point of motive there has to first be an unreasonable delay by the time he presented his claim and he should have realised (taking into account he might be less objective, but balancing that against his significant past experience of Tribunal claims over many years) that firstly looking at it in the round there had been no unreasonable delay by the Respondent (although it was frustrating) and secondly the existence of investigations into police misconduct/corruption more widely did not automatically support his claim as to the reason for his particular treatment in the very particular situation he was in. He also said during submissions on the strike out application that he had presented his claim after seeing the Daily Mail article referring to him which a colleague had alerted him to on 19th February 2021 and felt this portrayed him as ‘clogging up’ the Tribunal system; the trigger for his claim was therefore his upset regarding this article as much as any genuine belief that the Respondent was unreasonably delaying obtaining the Barclays Deed from the Mayor’s Office.[18]I therefore conclude that both of the grounds under Rule 76(1)(a) (unreasonable conduct in bringing the claims) and Rule 76(1)(b) (claims having no reasonable prospect of success) are satisfied in relation to each of the three claims and that a costs order should be considered. Discretion whether to make a costs award on the three claims in the claim form
Findings of fact
[19]The Respondent issued a costs warning to the Claimant on 7th October 2021, the day before the preliminary hearing. The existence of that costs warning is a relevant factor, taking into account the grounds set out at paras a-f are matters on which I have made findings in the Respondent’s favour in the judgment dated 8th October 2021. In addition it is relevant that the Respondent had asked for a preliminary hearing for a strike out/deposit order.[20]It also relevant when that warning was given, namely the day before the preliminary hearing.[21]The Claimant is unrepresented but is an experienced litigator in this Tribunal against this Respondent.[22]A relevant factor is also that the Claimant has brought multiple previous Tribunal claims against this Respondent over many years. Of the 16 claims presented before this one they have all been struck out or dismissed except for claims 14 and 15 which have not yet been listed. A costs order of £18,000 was made in relation to claims 6- 9 in respect of which the Respondent obtained a charging order.[23]As to whether I should exercise my discretion to award costs I have taken into account the Claimant’s ability to pay. He has provided a statement of his means showing his average monthly income and his monthly costs from which he says he is left with around £100 disposable income per month. He set out his existing mortgage commitments but did not provide any details of any remaining equity in his home The Respondent made the point in submissions that it could, as it has already, obtain a new charging order on his property.[24]Weighing these factors up up I conclude that the high threshold is met for a costs award to be made and that I should exercise my discretion to award costs against the Claimant and in favour of the Respondent. Amount of costs award[25]As to the amount I take into account that the costs warning was given on the day before the preliminary hearing leading to the strike out of his claims, although the Claimant had been on notice since receipt of the Respondent’s response that a strike out application would be made.[26]I also take into account the Claimant’s ability to pay. He has the means to meet an order taking into account he owns a property.[27]I therefore make an award of costs of £3,566 plus VAT (ie Counsel’s fees for preparation and attendance at the hearing of £3,485 plus solicitors’ costs attendance of £81), total £4,279.20 including VAT.[28]I do not award the entirety of the costs claimed because in exercising my discretion I have taken into account when the costs warning was given and have awarded the costs of preparation for and attendance at the preliminary hearing. Whilst all of Counsel’s fees had already been incurred by the day before the preliminary hearing (so even if the Claimant had decided to withdraw his claim, the Respondent would have incurred these costs in any event) it is appropriate to award these costs because they represent in practice what the Respondent incurred in having to prepare for and proceed with the preliminary hearing. Whilst I have found that the Claimant was aware when he presented his claim that each of the three claims had no reasonable prospects of success (or, if he did not know he should have done) I have not awarded costs prior to these preliminary hearing costs taking into account the timing of the costs warning and the fact that the Claimant would in particular have understood that attendance at a hearing would significantly increase the Respondent’s costs.[29]The costs are payable by the Claimant within 28 days of the date of this judgment. I have extended the 14 day default timescale in Rule 66 to enable the Claimant to assess his finances.
Findings of fact
[1]The basis for reconsideration relied on by the Claimant is set out in paras 24 and 25 of his application, namely(1) that an email to the Claimant’s manager around 15th October 2021 was new evidence and(2) that the strike out and costs judgments were premature decisions not in the public interest given the Claimant’s concerns raised since 2017 are now proved to be valid.[2]The Claimant’s application for a reconsideration was not made within 14 days of being sent the judgments as required under Rule 71. I nonetheless considered his application in the interests of justice under Rule 2. Application paras 1-18[3]These paragraphs relate the history of the Claimant’s other claims and complaints against the Respondent prior to the bringing of this claim. The Claimant does not specifically explain why they are relevant to the issues in this claim which only covers the Respondent’s claimed delay in obtaining the Barclays Deed of Postponement for the Claimant between January and February 2021. The implication appears to be that it follows from those past events that this claim therefore has reasonable prospects of success and should not be struck out.
Relevant law
[4]Firstly, the judgement decided that the argument that there was an act amounting to a detriment or an act of less favourable treatment (said by the Claimant to be an undue delay by the Respondent in obtaining the Barclays Deed for the Claimant, the only act complained of, judgment para 12,46) had no reasonable prospects of success. The Claimant would have to establish that before motive would be considered. Nothing he sets out in paras 1-18 affect that fundamental building block in this claim.[5]Secondly, it does not follow from the history set out in paras 1-18 that the argument that the motive for such an act (even if the act was accepted to have occurred) has reasonable prospects of success. The Claimant relates a long history and has brought multiple claims but he has not yet succeeded in any of his claims over a prolonged period. It does not follow from that claimed history that the motive issue in this particular claim (past whistleblowing, past protected acts and/or race discrimination) has reasonable prospects of success. Application paras 19-22[6]Para 20 criticises the Respondent for a delay caused by the getting back of the previous Halifax Deed. The Claimant confirmed at this hearing that he did not complain about that because he understood that it was reasonable to get the previous Deed back before issuing the new one (judgment para 13).[7]In para 20 the Claimant accepts that the Respondent was not aware of a March 2021 deadline – this formed part of the reasoning in the judgment (para 32).[8]In para 21 the Claimant refers to action he took on 23rd March 2021 reporting misconduct. He appears to be alleging that not recording his report was a further unlawful act. This was after this claim was presented and does form part of this claim.[9]In para 22 the Claimant refers to the ‘burying’ of his reports since this claim and claim 3202563/2020 were struck out. He appears to be alleging that the ‘burying’ was a further unlawful act. It is a vague allegation not relevant to the matters in issue in this claim. Application Paras 23-26[10]The Claimant’s complaint is that the Respondent on the one hand did not act on his report dated 23rd March 2021 to deal with the misconduct he claimed but on the other hand around 7 months later around 15th October 2021 told his manager that this claim had been struck out and reminded his manager about the duty of care to the Claimant. The Claimant says the sending of the email to his manager was because of his March 2021 report and complains that there was a contrast between(1) not acting on his March 2021 report as regards misconduct allegations against others and(2) acting on that same information to encourage his manager to apply a duty of care (though he also says that email was prompted by the strike out of this claim). This email is what the Claimant says is the new evidence relevant to a reconsideration. The email is not one the Claimant did not know about when the judgments were issued in this claim because it did not yet exist.[11]None of these matters has any relevance to the issues in this claim as regards the strike out judgment (no reasonable prospects) or the costs judgment (unreasonable conduct in bringing the claim/no reasonable prospects of success). Firstly the claimed act amounting to a detriment or less favourable treatment in this claim has no reasonable prospects of success, even before motive is considered. Secondly the report the Claimant made in March 2021 was made after this claim was presented and could not have motivated the Respondent’s claimed actions in this claim. Thirdly, to the extent the Claimant is saying that the email in October 2021 means that this claim has reasonable prospects of success because it shows that the Claimant’s past allegations in 2017 are somehow proved by the email, it is an email on his account which reminds his manager that there is a duty of care to him as an employee, which there is, and was prompted by the strike out of this claim. The account he gives of the email does not support his conclusion that his claims since 2017 are therefore now proved to be valid because that email somehow amounts to evidence which has proved him right.[12]Taking the above into account there is no reasonable prospect of the judgment or the costs judgment being varied or revoked.