Mr N Anemouri v Barnardo's: 3200647/2015 and others
EMPLOYMENT TRIBUNALS
Case No 3200647/2015
Between
Mr N AnemouriClaimantBarnardo'sRespondent
Before
Employment Judge GoodrichIn person for claimantMr P Halliday (instructed by Counsel) for respondentDate 1 March 2019
REASONS
[1]There is a long history to these four sets of proceedings.[2]The Tribunal’s files on the Claimant’s four claims are thick and heavy. Amongst the details of what has taken place to date are the following.[3]The Claimant presented his first claim to the Employment Tribunal against the Respondent on 3 March 2015 (case number 3200647/2015).[4]This case was listed for a Preliminary Hearing on 3 August 2015, before Employment Judge Prichard. He conducted a Case Management Discussion and made various Case Management Orders, including listing the case for a Preliminary Hearing Open before himself. He listed the case to consider whether to strike out any of the complaints on the basis of being out of time; and whether to strike all or any of them out; or to make a deposit order on the basis of their prospects of success.[5]The Preliminary Hearing conducted by Employment Judge Prichard on 29 September 2015 resulted to part of the Claimant’s claims being dismissed.[6]On 13 October 2015 the Claimant presented his second Employment Tribunal claim (case number 3202065/2015).[7]The two cases were originally listed for a three day hearing in April 2016 and postponed.[8]The two cases were also listed for a Preliminary Hearing and the both the Preliminary Hearing and full merits hearing dates were postponed, because of the Claimant’s ill health. Eventually they were listed for a Preliminary Hearing before Employment Judge Foxwell on 20 June 2016.[9]By the time of the Preliminary Hearing on 20 June 2016, the Claimant had issued a third set of Employment Tribunal proceedings. This claim was presented to the Employment Tribunal on 7 June 2016 (case number 3200530/2016).[10]Employment Judge Foxwell conducted a Preliminary Hearing for the three cases on 20 June 2016. He discussed the issues with the parties and postponed the Preliminary Hearing to a later date. His purpose for doing so, described in paragraph 13 of the Preliminary Hearing document, was to consider the full circumstances in determining whether the complaints of discrimination because of religion or belief had been presented in time; and, if out of time, whether it was just and equitable to extend time.[11]On 25 July 2016 I conducted the Preliminary Hearing that had been listed by Employment Judge Foxwell.[12]At the Preliminary Hearing on 25 July 2016, amongst what took place was:12.1 I decided that the Claimant’s race and religion or belief harassment claim was out of time; that it was not just and equitable to extend time limits; and the complaint was dismissed.12.2 I listed the case for a Telephone Preliminary Hearing to consider whether or not to conduct a judicial mediation.12.3 I listed the three cases for a full merits hearing, for seven days, in January 2017.12.4 I ordered the Respondent to provide the Claimant and the Employment Tribunal an updated list of issues to follow the amendments to the Respondent’s draft list of issues that had been made at the Preliminary Hearing.[13]A Preliminary Hearing was conducted by Regional Employment Judge Taylor on 8 September 2016 to consider the possibility of judicial mediation. By then, however, the Claimant informed the Tribunal that he had recently been dismissed and intended to bring a fourth claim. She made various Case Management Orders, one of which was to list the case for a further Preliminary Hearing by telephone to consider judicial mediation.[14]The case was listed for judicial mediation. However the judicial mediation has never taken place to date, having been postponed, on the Claimant’s request, on the grounds of his ill health.[15]On 3 October 2016 I conducted another Preliminary Hearing. I listed the case for an Open Preliminary Hearing on 25 and 28 November 2016 to determine the issues in the fourth case that the Claimant had said he was about to lodge; to make such Case Management Orders as might be required in this and the other cases; and to consider the Respondent’s applications for strike out, or a deposit order.[16]On 3 October 2016 the Claimant issued a fourth claim (case number 3200880/2016).[17]The outcome of the Preliminary Hearing before Employment Judge Jones on 25 and 28 November 2016 was that:17.1 The Claimant’s race discrimination claim made in his third claim was dismissed as being out of time.17.2 His complaint of religion or belief discrimination for his third claim was dismissed as having no reasonable prospect of success.17.3 The Claimant withdrew his claim of discrimination against him by not allowing him to join the LGBT and disability forums.[18]Employment Judge Jones listed the case for a five day hearing, to determine liability only, in March 2017.[19]The full merits hearing listed in March 2017 was vacated, on the application of the Claimant, on grounds of his ill health.[20]Likewise, the judicial mediation that had been listed in February 2017 by Regional Employment Judge Taylor, was also vacated on grounds of the Claimant’s ill health. The cases have not been relisted for a full merits hearing, or for judicial mediation. The Claimant has sent a series of medical certificates setting out details of his ill health.[21]By a letter dated 6 February 2018, sent by the Employment Tribunal on my direction, I asked the Claimant to provide specific medical information. This was:21.1 What is the Claimant’s current medical condition affecting his fitness to attend by telephone?21.2 Could he attend if adjustments are made? If so, what adjustments do you think would be necessary? If not, why?21.3 If he is presently unfit to attend the hearing, when will he be fit to do so? (please be aware that a postponement may be refused). There was a typing mistake for the remainder of the sentence which should have read if not in the reasonably foreseeable future; and instead stated “if it reasonably foreseeable future”.21.4 If applicable please provide any information that may assist the Judge modify their procedures to take account of parties’ reasonable needs.[22]I indicated to the parties my wish to list the case for a five day hearing.[23]By letter dated 20 March 2018 the parties were notified that a Preliminary Hearing would be conducted on 18 June 2016, listed for three hours, to identify the issues and make case management orders, including orders relating to the conduct of the final hearing.[24]My intention in listing the case three months ahead was to give the Claimant an opportunity to recover from his ill health. An email had been received by the Tribunal stating that he had recently had a kidney stone operation.[25]By email dated 13 April 2018 the Tribunal received an email, sent on behalf of the Claimant, enclosing a GP note. Although it was stated that it confirmed the Claimant’s inability to attend court in June 2018, in fact it was a fitness for work certificate, certificating the Claimant off work until 10 July 2018. No opinion was given as to the questions I had asked.[26]The Tribunal sent another letter to the parties, on 26 April 2018, reiterating the medical information that I had requested and not received, I stated that I needed the information in order to decide how to proceed with the Claimant’s cases; and could not allow the cases to remain “in limbo” for an indefinite amount of time.[27]Although I had initially set the case down for a Preliminary Hearing (closed), by letter dated 18 May 2018, the Respondent made an application for the Claimant’s claims to be struck out, asking for this to be considered at the Preliminary Hearing. Detailed grounds of the application were given. A detailed chronology was given. The basis of the application was under Rule 37(1)(d) of the Employment Tribunals Rules of Procedure 2013 (claim not being actively pursued); 37(1)(c) (Claimant’s non compliance with an Order of the Tribunal); and 37(1)(b) (Claimant’s unreasonable behaviour).[28]The Claimant sent a letter dated 29 May 2018 objecting to the application. He stated that it was very much his intention to carry on with his case but that medical issues had proved problematic and caused his inability to carry on with proceedings for the time being alone. He asked for the proceedings to be postponed until such time as his health permitted him to attend to put forward his case.[29]In response to the Respondent’s application and the Claimant’s opposition to it and postponement request I directed a letter to be written to the parties. This was dated 31 May 2018. I notified the parties that I was not satisfied that it would be in accordance with the Tribunal’s overriding objective for the Preliminary Hearing to be postponed, as there had already been numerous postponements and the cases were brought several years ago. I stated that I would consider his representations at the Preliminary Hearing on 18 June, together with any further written or oral representations made by him or on his behalf.[30]I also granted the Respondent’s application for their strike out application to be considered.[31]This Preliminary Hearing was converted, therefore, from a Preliminary Hearing (closed) to a Preliminary Hearing (open), in order to allow the Respondent’s strike out application to be considered.[32]For this Preliminary Hearing the Claimant provided a further letter, dated 18 June 2018; and Mr Halliday, on behalf of the Respondent, containing submissions in support of his strike out application and in opposition to the Claimant’s postponement application.[33]The Claimant’s written submissions included the following points:33.1 He felt that he had been put under duress by the court as his medical report and letter from GP and sick note all confirmed his inability to currently attend the court hearing.33.2 He had explained in full that he was not fit to be in the court on a number of occasions, he suffers from severe headaches which make it hard for him to concentrate and fully understand.33.3 The Claimant asked for recommendations to put in place in due course for future hearing dates. These were for the lights in the court room to be turned off during the hearing, as they bothered his eyes (glaucoma) leading to further pains in his head. He asked for each matter to be discussed at a slow and steady pace. The swelling in his hand made it difficult to take notes. He asked for regular breaks to enable him to stand at regular intervals, making it impossible for him to sit down for more than 20 minutes at a time. He asked for toilet breaks every 30 minutes due to urology issues. He asked for clarification of any unclear matters to be discussed, to support his dyslexia. He asked for time to explain his side of events and understand matters discussed by the others in legal terms.33.4 The Claimant provided a medical certificate dated 1 May 2018. He also provided a letter from his GP. The main points in the GP’s report included the following.33.5 The GP referred to Mr Anamouri having had a diagnosis of panic attacks since 2012 which he has medication for he has had psychological input and is on medication for. This could affect his mental state and concentration. He had seen a neurologist and been diagnosed with tension headaches for which he takes medication; and has suffered from recurrent episodes of loss of consciousness and being diagnosed with recurrent vasovagal syncope likely due to automatic dysfunction. The GP also reported that Mr Anemouri underwent decompression of the left wrist for severe carpal tunnel syndrome in October 2017 and will need the right side done as well. Mr Anemouri was under the care of urology as he suffers from kidney stones and is due to have this removed via a right supermini percutaneous nephrolithotomy in March this year. He has had previous trabeculectomies in both eyes for open angle glaucoma and may need further surgical intervention for this later on.33.6 The above conditions and subsequent medications that Mr Anemouri needs to take mean that his concentration can be affected which affects his ability to attend the Tribunal.33.7 His conditions are chronic ongoing conditions which are still being treated under secondary care.[34]The GP gave no indication as to whether, with adjustments, the Claimant could attend the Tribunal. Nor did he give advice on, if the Claimant is currently unfit to attend an Employment Tribunal hearing, when he would be fit to attend.[35]Mr Anemouri’s oral submissions in support of his postponement application were that he hopes that in a few months time he would be fit to come in to the Tribunal. He reiterated that he wanted to continue with his case.[36]On behalf of the Respondent Mr Halliday’s typed submissions in opposition to the Preliminary Hearing been adjourned included that:36.1 The Claimant had not produced any medical evidence that he is unfit to attend this hearing.36.2 Although he undoubtedly has various medical conditions there is no reason to conclude that they render him incapable of attending this hearing. His medics have not said that they render him unfit to attend the hearing at this time.36.3 There had already been four Preliminary Hearings postponed already; proceedings had been dragging on for more than three years; and they now need to be resolved or, at the very least, progress.[37]Mr Halliday’s oral submissions opposing a postponement included that even the high point of the letter from his GP and fit note did not say that he was incapable of attending the hearing. So far as caselaw was concerned he submitted that I had a broad case management discretion and referred to the overriding objective’s reference to cases needing to be treated fairly and expeditiously and that the Claimant was asking for yet another adjournment.[38]I considered the Tribunal’s overriding objective of dealing with the case fairly and justly, including so far as practicable:38.1 Ensuring that the parties were on an equal footing.38.2 Dealing with cases in ways which are proportionate to the complexity and importance of the issues.38.3 Avoiding unnecessary formality and seeking flexibility in the proceedings.38.4 Avoiding delay, so far as compatible with the proper consideration of the issues; and38.5 Saving expense.[39]I decided to refuse the Claimant’s application to postpone and proceed with the Preliminary Hearing for the following reasons:39.1 I had sought to ensure that the requests for adjustments made by the Claimant were carried out. I turned the lights out in the room, sought to discuss each matter at a slow and steady pace, notified the Claimant that he could stand at any time he wished, took breaks after around 30 minutes with the parties and sought to give clarification when requested.39.2 Neither the option of postponing or proceeding with this Preliminary Hearing was ideal. From the Claimant’s perspective he is not in good health and wished to have the case adjourned in the hope that his health would improve.39.3 Fairness involves fairness to both parties. The Respondent has been waiting for years to get this case to a hearing. They are a charity and the costs of defending the proceedings are ever increasing. Legal proceedings are usually stressful for all parties involved, particularly when there are allegations of unlawful discrimination. It is, generally, stressful for those accused of unlawful discrimination to have the case protracted indefinitely, as well as for the Claimant.39.4 From reading the medical evidence, particularly the latest GP letter, I am not confident that if I were to adjourn the Preliminary Hearing the position would be any different in any reasonably foreseeable near point in the future. The GP referred to further treatment and operations for the Claimant.39.5 I have had the benefit of written submissions from both parties as to the strike out application.39.6 I consider that I have enough information, with short further oral submissions, to decide the Respondent’s application; and, if I do not grant the Respondent’s strike out application, to make relevant Case Management Orders for the case.[40]After I had given my decision on the adjournment application orally to the parties, the Claimant remarked that he had made a complaint against me because I had made mistakes in the Preliminary Hearings he had with me.[41]The Claimant’s comment did not appear to me to be a reason for not continuing with the Respondent’s strike out application. The losing party in any application, or case, will often consider that the Judge has made the wrong decision. If so, they are entitled to appeal against the judgment. I am aware that the Claimant did appeal against at least one of the Employment Judges’ judgments (Judge Prichard) and may have done so with others, including myself. So far as I am aware no appeals have been successful and none are outstanding. As a (now former) President of an Employment Tribunal stated in an appeal involving an issue as to recusal of the judge, it is as important for judicial officers to discharge their duty to sit and not accede too readily to suggestions of bias, as it is to refuse to recuse themselves when appropriate to do so.[42]I then went on to consider the Respondent’s strike out application.[43]Before the Respondent had given its oral submissions on their strike out application I asked for details of the list of issues in the case; and as to (following up one of the written submissions about the Respondent being a charity and the heavy costs of the litigation) how much the Respondent had incurred in legal costs.[44]As notified above that there was a list of issues that had been drawn up by the Respondent following Tribunal Orders and updated following the judgment of Employment Judge Jones. I was informed that the issues had not been agreed by the Claimant.[45]As referred to above a number of the Claimant’s claims in the four set of proceedings had been struck out. The list of issues that remain to be decided are as follows.[46]The Respondent accepts that the Claimants’ glaucoma and diabetes amounted at all material times to a disability. They did not admit, if relevant, that the Claimant was also disabled (for the purposes of his fourth claim) by reason of depression, anxiety, panic attacks, gout and arthritis.[47]The Claimant’s outstanding claims, as listed in the list of issues include:47.1 A disability discrimination case arising out of requiring the Claimant to work in a new building from September 2013.47.2 A disability discrimination case from the Claimant second and third claims arising from his medical suspension from work from 7 August 2015.47.3 An unfair dismissal, discriminatory, whistleblowing and victimisation complaints concerning dismissal arising from the Claimant’s fourth claim.47.4 There was also a section on remedy.[48]As regards costs of the litigation I was informed that the Respondent’s costs have amounted to £120,000 - £130,000 and that they do not have legal insurance to cover these expenses.[49]When making their strike out application the Respondent’s solicitors sent a letter making detail submissions; and a lengthy chronology. The submissions in support of strike out are replicated to some extent in the skeleton arguments produced by Mr Halliday. The Respondent’s chronology is replicated to some extent in my summary above, although I also read the Employment Tribunal’s files for the cases. I do not seek to set out the solicitor’s submissions in full.[50]The Respondent’s skeleton arguments were detailed coming under various headings. The first was headed “introduction and overview”. The second was headed “the claims and the procedural background”. The third was headed “should this hearing be adjourned?” The fourth heading was “should these claims be struck out?” There was also a section on case management if the Tribunal declined to strike out the Claimant’s claims. I also asked Mr Halliday to give oral submissions as to this possibility. I had a further case listed in the afternoon and notified the parties that, in the circumstances, I would be reserving my judgment.[51]I seek to summarise some of the main points in the Respondent’s skeleton argument, rather than set out an exhaustive recital of them.[52]Under the section “introduction and overview” were the following points:52.1 The proceedings started more than three years ago. The only substantial progress so far had been strike out various aspects of the Claimant’s claims. Disclosure is incomplete. There are no bundles for the trial. There are no dates yet set for exchange of witness statements. This was despite having had 8 Preliminary Hearings so far, a vast amount of correspondence and four postponements of Preliminary Hearings, two of which occurred because the Claimant wrote to the Tribunal on the morning of the hearing saying he was too unwell to attend that day. Trial dates have been vacated on numerous occasions.52.2 There has been no substantive progress since the hearing in November 2016, when aspects of the Claimant’s claims had been struck out.52.3 The reason that there had been no progress was that the Claimant contended that he had been too unwell to progress the case during this period. Detailed submissions were given as to why the Respondent said that this contention was not supported by medical evidence. It was asserted in the submissions that the Claimant had repeatedly and persistently breached directions from the Tribunal by failing to produce such evidence, giving details of that assertion.52.4 The Claimant stance was that he wanted his claims to be stayed indefinitely until his health permitted him to attend court once more to put forward his case. Despite the Tribunal’s repeated requests he had no idea as to when in future the Claimant might be fit to conduct these proceedings.52.5 The time had come for the claims to be struck out. He was not actively pursuing the case. The impossibility of knowing when he would be ready to continue there is at least a substantial risk of a fair trial being impossible. He had breached numerous Tribunal orders and his conduct of proceedings had been uncooperative and generally unreasonable, putting the Respondent to very substantial and unnecessary expense which for the most part, it would not realistically be able to recover from the Claimant in costs. The claims and procedural background[53]Under the heading “The procedural history” was set out in outline, with a reference to the Respondent’s chronology (to which I referred above).[54]Under the heading of strike out, reference was made to Rule 37 of the Employment Tribunals Rules of Procedure. Reference was made to a number of cases including Evans v Commissioner of Police of the Metropolis [1993] ICR 151 CA; Peixoto v British Telecommunications Plc EAT 0222/07; and Riley v Crown Prosecution Service [2013] IRLR 966 CA.[55]In support of their submissions that there was a substantial risk of a fair hearing being impossible for the following points:55.1 The passage of time means that witness memories will undoubtedly faded, with the case as regards lighting in the office concerning events in 2014. The whole case is fact sensitive depending on matters such as what was going through the Respondent’s employees’ minds when they were addressing his complaints about lighting and his eventual dismissal.55.2 One of the Respondent’s key witnesses, heaving involved in making reasonable adjustments for the Claimant, left the Respondent’s employment in 2016. We understand that his new role involves a high level of overseas travel, jeopardising his ability to attend a hearing and give evidence.55.3 The passage of time in itself will eventually make a fair trial impossible.55.4 These problems are exacerbated because there is no end point in sight, with the Claimant asking for his claims to be stayed indefinitely. He has not said when he is likely to be fit to attend trial.55.5 As to breach of orders and unreasonable conduct the Respondent referred, amongst other cases, to Blockbuster Entertainment Ltd v James [2006] IRLR 630.55.6 Giving details of what they said were the Claimant’s breaches of orders and unreasonable behaviour.[56]I have referred to the Claimant’s written submissions above, contained in his letter dated 18 June 2018. He felt that he was put under duress to attend by the court was not fit for the hearing and stated that a solicitor had got into contact with the Employment Tribunal on Friday 15 June requesting a short postponement to review his evidence but this was refused without a valid reason. In response to what Mr Halliday had stated about the Respondent’s costs date he stated that this was due to them bringing so many people to court each time (this comment appeared to me to have some substance as the list of those attending compiled by the Tribunal clerk included two solicitors and a trainee in addition to Mr Halliday, counsel for the Respondent).
The Relevant Law
[57]Rule 37 of the Rules of Procedure provides for striking our all or part of a claim or response on any of the following grounds. “(a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non compliance with any of the rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”[58]In the case of Evans v Metropolitan Police (above) guidance was given that it is necessary to show, if the default is not intentional and blameworthy, that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or have caused serious prejudice to the defendants either between themselves and the plaintiffs of between each other or between them and the third party.[59]In the case of Peixoto v British Telecommunications Plc (above) guidance was given that in every case there must be some question of proportionality. Concluding that a fair trial is impossible includes consideration of all lesser alternatives, including proportionate measures to see whether the case can be tried.[60]In the case of Weir Valves & Controls Ltd v Armitage [2004] ICR 371(EAT) guidance was given that a striking out order or other sanction should not always be the result of disobedience to an order and that the guiding consideration is the overriding objective. The court should consider the magnitude of the default, whether it is the responsibility of the solicitor or a party, what disruption on fairness or prejudice has been caused and still, whether a fair hearing is still possible.[61]In the case of Riley v Crown Prosecution Service (above) it is important to remember that the overriding objective is to deal with cases justly and expeditiously without unreasonable expense. Article 6 of the European Convention on Human Rights emphasises that every litigant is entitled to a fair trial within a reasonable time. That is an entitlement of both parties to litigation. It would be wrong to expect Tribunals to adjourn heavy cases, which are fixed for a substantial amount of court time many months before they are due to start, merely in the hope that the Claimant’s medical condition will improve. If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time the case itself deals with matters that are already in the distant past, striking out must be an option available to the Tribunal.[62]In the case of Blockbuster (above), a case dealing with breach of Tribunal orders and unreasonable conduct, guidance was given that striking out a claim by unreasonable conduct is a draconian power not to be too readily exercised. The two cardinal conditions are either that the unreasonable conduct has taken the form of deliberate and persistent disregard and required procedural steps; or that it is made a fair trial impossible. Conclusions on strike out[63]I have given careful consideration to two possible causes of action. One would be to list the case for another telephone conference to consider possible judicial mediation; if the Regional Employment Judge thought appropriate, for the case to be listed once more for the judicial mediation; for a possible further Preliminary Hearing if the judicial mediation was unsuccessful; and list the case for a seven day full merits hearing. I was informed by the Tribunal’s listing department that, with the shortage of judicial resources in this (and other Employment Tribunals) resources this would unlikely to be before February 2019.[64]The other possible option considered by me is to strike out the Claimant’s claims.[65]This is a case where the Claimant has attended the Tribunal today, in spite of his health difficulties; and has frequently emphasised that he wishes to pursue his claims.[66]I have, however, decided not to take this course of action and, instead, to strike out the case including for the following reasons:66.1 The power to strike out a case is a drastic one, not to be readily exercised. Alternatives need to be considered. Losing the opportunity to bring a claim and potentially to be successful is as very great prejudice to a Claimant.66.2 There has already been inordinate delay in getting the Claimant’s cases for a full merits hearing. The first of the Claimant’s four cases was issued over three and a quarter years ago, on 3 March 2015; and the fourth over one and a half years ago, on 3 October 2016. Some, or at the last count, all of the cases have been listed for hearing on three occasions- in April 2016, January 2017 and March 2017. No real progress has been made in the cases since the Preliminary Hearing conducted by Employment Judge Jones in November 2016.66.3 Although my decision is based on the case not being actively pursued, the Claimant has undoubtedly been in breach of a number of Tribunal Orders and directions. A serious breach has been his failure, although he has obtained medical evidence, to address my request for medical evidence as to whether he would be able to attend and conduct his hearing with suitable adjustments; and for a prognosis, if unfit, as to when he would be fit. This was important to me in my decision making. I needed to understand whether there was a realistic prospect of the case being concluded within any reasonably foreseeable period of time. I pressed the Claimant for this information. Having met the Claimant on a number of occasions he is an intelligent individual and I consider his failure to supply this information, despite obtaining a number of GP letters following my request, is deliberate.66.4 In 2016 I took steps to have the case listed for judicial mediation. It was listed, although cancelled by the Tribunal because of the Claimant’s ill health. I do not have the confidence I need, if I was to restart the process I set in place in 2016, that the Claimant would not apply for another postponement of any telephone Preliminary Hearing or judicial mediation that might be set in place, if both parties’ remained willing for a judicial mediation to be conducted.66.5 The Claimant’s GP’s letter referred to a number of medical interventions being required for the Claimant in future. These appeared to me to increase the possibility of further postponements.66.6 Nor do I have confidence that a trial of the case, even if listed as far ahead as February 2019, will go ahead. The history of this case suggests the contrary.66.7 I accept that the delays have caused substantial prejudice to the Respondent. As can be seen from the chronology the details of this case go back many years, witnesses recollection fade and one important witness for the Respondent has left their employment. Although I expect that, nonetheless, he could be called as a witness, I understand that he frequently works abroad and calling him adds an extra difficulty.66.8 Another prejudice that would be caused to the Respondent through the prolongation of the hearing is the additional costs that would be caused by the continuation of this litigation. They have, I was informed, spent about £120-130,000 on the cases brought against them by the Claimant. Even if, as the Claimant says, the costs of their legal representatives are substantially greater than they should be, the costs are large and mounting. They are a charity dealing with highly vulnerable individuals. There appears to be little reasonable prospect of them recovering these costs, or the costs of any continuation of these proceedings.66.9 In the Riley case (above) guidance was given that Article 6 of the European Convention on Human Rights emphasises that every litigant is entitled to a fair trial within a reasonable time.66.10 I do not consider that a fair trial of these cases will be possible. The Claimant has given no more than a hope that he will be able to conduct a hearing at some point in the future. This has not been supported by medical evidence. As stated in the Riley case, if doctors cannot give any realistic prognosis of future improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out a case must be an option available to a tribunal.[1]This hearing (in chambers) is to determine a costs application made on behalf of the Respondent, Barnado’s, against the Claimant, Mr Anemouri.[2]There is a lengthy history to the claims. The history was summarised by me in my judgment at the Preliminary Hearing conducted on 18 June 2018 (in particular at paragraphs 3 – 30 of that judgment) and promulgated on 11 July 2018.[3]I do not repeat the background here, although this decision needs to be read in conjunction with that judgment; and, where relevant, other judgments referred to below.[4]At the hearing on 18 June 2018 my judgment was that:4.1 The Claimant’s application for this Preliminary Hearing to be adjourned is refused.4.2 The Claimant’s claims are struck out, as further set out below. The judgment was sent to the parties on 11 July 2018.[5]By email, with attached letter, dated 8 August 2018 the Respondent’s solicitors made an application for costs (I refer further below in more detail to the grounds of the application).[6]The Respondent’s application for costs was for their costs incurred during the period between 29 November 2016 and 18 June 2018. The total costs referred to were £26,880.17 plus VAT. They asked for the costs to be limited to an award for £10,000 stating that this was in recognition of the Claimant’s means.[7]The Claimant replied to the application by emails dated 29 August and 12 September 2018. He notified the Tribunal that he had lodged an appeal to the Employment Appeal Tribunal (to the judgment at the Preliminary Hearing described at paragraph 4 above). He attached a copy of the notice of appeal. Although the Claimant had represented himself at the Preliminary Hearing in question before me, his grounds of appeal were drafted on his behalf by representatives called Astute HR Limited. The Claimant asked for its decision to be reconsidered in the light of his appeal and to stay dealing with the Respondent’s costs application until the appeal was determined. He also stated that he would be forwarding a letter from his GP confirming that he was now fit enough to attend a full day’s hearing in court.[8]The Tribunal wrote a letter to the parties, dated 25 October 2018, at my direction. The main points made in that letter included:8.1 It was unclear whether the Claimant was making an application for me to reconsider my strike out judgment, as well as for the costs application to be stayed. It did not appear to me to be appropriate for the case to be reconsidered both because (if it was an application) it was made out of time; and no grounds were given for why it would be just and equitable to extend time; and because my judgment was being challenged by way of appeal. It was stated that I would assume, unless notified to the contrary, that the Claimant was not making an application for the judgment to be reconsidered.8.2 As regards staying the proceedings because of the appeal, I did not regard the lodging of an appeal as necessarily being a good reason for staying the case and would be minded to consider the costs application.8.3 I had in mind considering the application on the basis of written submissions, rather than having a hearing, in order to save costs. I asked, however, for the Claimant to give his views on this; and to do so by 8 November 2018.[9]In response to the Tribunal’s letter dated 25 October 2018 the Claimant replied, by letter dated 8 November 2018. He reiterated his request for his appeal to be determined before I dealt with the costs application; and responded to the Respondent’s grounds for a costs order. I set out the main points of the Claimant’s response later in this judgment.[10]By letter dated 15 November 2018 the Employment Appeal Tribunal notified the parties that it considered that the Claimant’s appeal had no reasonable prospect of success and, in accordance with Rule 3(7), no further action will be taken on it. The reasons for this decision, made by the (then) President of the Employment Appeal Tribunal, the Honourable Mrs Justice Simler, were given in the letter.[11]I directed that a further letter to be written to the parties. In the Tribunal’s letter dated 28 November 2018 I included the following points and directions:11.1 I agreed to the Respondent’s application to be determined without a hearing, on the basis of the written submissions made in the letters on 8 August and 8 November (referred to above).11.2 If the Respondent wished to make any further written submissions they were to be sent to the Claimant and the Tribunal by no later than 6 December 2018.11.3 If the Claimant wished to make any further submissions these were to be sent to the Respondent and the Tribunal by no later than 13 December 2018. I also asked the Claimant to note Rule 84 of the Employment Tribunal Rules of Procedure 2013 as to the Tribunal’s discretion that, in deciding whether to make a costs order and, if so, what amount, the Tribunal may have regard to the paying party’s ability to pay. I asked him, if he wished his means to be considered, to give details of his means particularly his income, outgoings, assets and debts.[12]By email dated 6 December 2018 the Respondent’s solicitors made further submissions as to costs (to which I refer further below).[13]So far as I am aware the Claimant did not make further submissions in opposition to the Respondent’s application for costs. Submissions of the parties[14]The submissions on behalf of the Respondent, dated 8 August 2018, included the following points:14.1 The application was made on the following grounds. Firstly, under Rule 76(1)(a) in that the Claimant acted vexatiously, abusively, disruptively and/or unreasonably in the way he conducted these proceedings. Alternatively :14.2 Under Rule 76(2) in that the Claimant failed to comply with an order of the Tribunal. Alternatively;14.3 Under Rule 76(1)(c) and/or Rule 76(2) in that a number of hearings in these proceedings were postponed upon the application of the Claimant.14.4 In support of their application under Rule 76(1)(a), the Respondent’s submissions referred to the primary reason for the strike being due to the Claimant not actively pursuing the claims. This, they submitted, amounted to vexatious, abusive, disruptive and/or unreasonable behaviour in the way proceedings had been conducted by the Claimant. They had incurred significant costs in defending the claims, exacerbated by continued and deliberate assertions put forward by the Claimant that the Respondent and/or this firm was misleading the Tribunal and/or intimidating the Claimant and/or subjecting him to harassment. The total sums incurred through preparing the strike out application and for solicitor and counsel costs in attending the strike out hearing amounted to £9,320 plus VAT.14.5 The application by the Respondent to strike out the claims was ultimately successful; and, had the Claimant’s conduct been reasonable, the application would not have been required.14.6 The application under Rule 76(2) was based on submitting that the Claimant had failed to comply with orders of the Tribunal. They made reference to the part in my judgment in which I stated that the Claimant has undoubtedly been in breach of a number of Tribunal orders and directions, with a serious breach being in respect of my request for medical evidence. They stated that there had been breaches of orders of Employment Judge Jones, Regional Employment Judge Taylor and myself requiring the Claimant to produce medical evidence and, in my case, specific medical evidence, which the Claimant had breached. They referred to paragraph 66.3 of my judgment, as this being a deliberate failure of the Claimant. The Respondent, they submitted, incurred costs of £1,516.50 plus VAT in seeking from the Claimant adequate medical documentary evidence. His failure to do so was also a significant factor in the Respondent applying for strike out of the claims, for which they incurred costs of £9,320 plus VAT in preparing a strike out application and attending the hearing on 18 June 2018.14.7 With regard to their application under Rule 76(1)(c) and/or Rule 76(2) they referred to postponements of a judicial mediation hearing listed to take place on 8 February 2017; the five day hearing listed to take place on 21 March 2017; the Preliminary Hearing listed for 26 June 2017; and submitting that the number of hearings which had been postponed was a significant factor in the Respondent applying for strike out of the claims. They stated that they had incurred £1,614.00 plus VAT and £350.00 plus VAT preparing for the judicial mediation hearing that had been listed; £351 plus VAT preparing for the March 2017 hearing; £2,598.50 plus VAT preparing for the hearing listed on 26 June 2017; and £9,320 plus VAT (referred to at paragraph 14.4 above) in preparing for and attending the hearing on 18 June 2018 when the Claimant’s claim was struck out.14.8 They enclosed a schedule of costs incurred between 29 November 2018 amounting (as referred to above) to £26,880.17 plus VAT.[15]The Claimant’s submissions dated 8 November 2018 including the following points:15.1 As referred to above, a request for consideration of the costs application to be postponed pending his appeal.15.2 The Respondent’s court costs were overstated, stating that the Respondent’s solicitors attended court with at least four to six people every time, increasing court costs incredibly and unnecessarily.15.3 The Respondent’s solicitors kept requesting court dates when he was clearly unable to attend due to medical reasons, ignoring this and sending unnecessary correspondence to raise court costs. This he submitted displayed high levels of thoughtlessness towards ex-employees who they put through financial hardship due to the lack of health and safety care and responsibilities.15.4 Attaching a letter from his GP practice dated 14 August 2018 (describing the Claimant’s medical condition) and his letter to the Tribunal dated 11 September 2018 (referred to above).[16]The Respondent’s further submissions, in a letter dated 6 December 2018 including the following points:16.1 It was misleading for the Claimant to state that their firm had attending hearings “with at least four to six people every time”, giving reasons.16.2 Objecting to the Claimant’s assertion that their firm had “significantly overstated” the Respondent’s costs at the Preliminary Hearing on 18 June 2018, giving reasons for this.16.3 Asserting that the timeframe in respect of which the Respondent was claiming costs did not include the time for which the Respondent had previously been awarded costs by Employment Judge Prichard dated 9 November 2015 and attaching a copy of his judgment.16.4 Repeating that they were limiting their application for costs to £10,000; and disputing that they sent the Claimant unnecessary correspondence to increase the court costs.
The Relevant Law
[17]Rule 76(1) of the Employment Tribunals Rules of Procedure 2013 provides as follows: “(1) a tribunal may make a costs order …, and shall consider whether to do so, where it considers that –(a) A party … has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;(b) A hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.”[18]Rule 76 involves, therefore, a two-stage process. The first stage is for the Tribunal to consider whether the threshold required a Rule 76(1)(a) or (c) has been reached. The second stage, if the Tribunal considers that the threshold has been reached, is to consider whether to exercise the discretion to award costs.[19]Rule 76(2) provides: “A tribunal may also make an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party”[20]Rule 84 provides that in deciding whether to make a costs order, and if so in what amount, the Tribunal may have regard to the paying party’s ability to pay.[21]In the High Court or County Court the unsuccessful party in litigation will usually be ordered to pay the successful party’s costs, in accordance with the CPR rules in those venues. In contrast, costs in Employment Tribunal proceedings are the exception rather than the rule and are granted in the limited circumstances set out in Rule 76.[22]In the case of Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 (CA) it was held that the vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there was unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.[23]In the case of AQ Ltd v Holden [2012] IRLR 648 (EAT) consideration was given as to whether, or what, account to take of a party being a litigant in person.[24]It was held that the threshold tests were the same whether a litigant is or is not professionally represented. It was held that the application of those tests, however, must take account of whether a litigant is professionally represented. The Tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in Tribunals and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that Tribunals do not apply professional standards to such people, who may be involved in legal proceedings the only time in their life. They are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Further, even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialists help and advice. This is not to say that lay people are immune from orders for costs: far from it, as caselaw makes clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.[25]The power to award costs under Rule 76(2) is entirely discretionary, although costs should only be awarded against the party if he/she is at fault in applying for a postponement or adjournment. Unlike under Rule 76(1)(a), however, when costs are awarded under Rule 76(2) there is no need to find that a party has behaved vexatiously, abusively, disruptively or otherwise unreasonably. It is sufficient that he/she is clearly responsible for the delay. Conclusions on Application for Costs[26]My reasons for striking the Claimant’s claims were set out in paragraphs 63 – 66 of my judgment, particularly paragraphs 66.1 – 66.10. I have them in mind.[27]I have considered the three alternative ways in which the Respondent’s application for costs was based. In regard to the first ground, under Rule 76(1)(a) (the Claimant acting vexatiously, abusively, disruptively and/or unreasonable) my conclusions are as follows:27.1 The Respondent refers to the principal reason of the strike out being due to the Claimant not actively pursuing the claims. They refer to the Tribunal recognising that no real progress was made with the claims since the Preliminary Hearing conducted by Judge Jones on 25 and 28 November 2016; and referred to paragraph 66.2 of my judgment.27.2 The fact, however, of the lack of progress in the litigation does not of itself amount to unreasonable conduct of the proceedings. The Claimant was undoubtedly in poor health.27.3 The Respondent referred to incurring significant costs in defending the claims, exacerbated by what they stated to be continued and deliberate assertions put forward by the Claimant that the Respondent and/or this firm was misleading the Tribunal and/or intimidating the Claimant and/or subjecting him to harassment.27.4 The Respondent did not, however, give specific details, or examples, of such communications in order for me to be able to make an informed assessment of this point.27.5 I also have in mind the guidance in the AQ Ltd v Holden case that a Tribunal cannot and should not judge a litigant in person by the standards of professional representative, for the reasons set out by Judge David Richardson in that case. I am not satisfied, therefore, that the Respondent has made out its grounds under this heading.[28]The second ground of the application, under Rule 76(2) is as to the Claimant’s failure to comply with an order of the Tribunal.[29]The Respondent refers to paragraph 66.3 of my judgment, in which I referred to Claimant having undoubtedly been in breach of a number of Tribunal orders and directions, although my decision was based on case not been actively pursued. I referred to a serious breach being his failure, although he had obtained medical evidence, to address my request for medical evidence as to whether he would be able to attend and conduct his hearing with suitable adjustment; and for a prognosis, if unfit, as to when he would be fit. I explained why this was important to my decision making. I referred to having met the Claimant on a number of occasions, that he was an intelligent individual; and that I considered his failure to supply this information, despite obtaining a number of GP letters following my request, to be deliberate.[30]The Claimant’s deliberate failure to supply information required by me, was, I consider, unreasonable conduct on his behalf.[31]The Respondent also referred to Orders of Employment Judge Jones and Regional Employment Judge Taylor for medical evidence to be supplied by specific dates and the Claimant having breached these Orders. They referred to the Respondent incurring costs of £1,516.50 plus VAT in seeking for the Claimant adequate medical documentary evidence. They referred to the Claimant’s failure to comply with an Order of the Tribunal being a significant factor in the Respondent applying for strike out the claims. The costs they submitted they incurred for preparing the strikeout application and attending the hearing on 18 June 2018 as amounting to £9,320 plus VAT.[32]The third basis of the Respondent’s application was the postponement of a judicial mediation hearing listed to take place on 8 February 2017; a five day hearing listed to take place on 21 March 2017; and a Preliminary Hearing due to take place on 26 June 2017. These were vacated and postponed on 6 February 2017, 8 February 2017 and 26 June 2017. All postponements were on the basis of the Claimant’s ill health. These postponements, the Respondent submitted, was a significant factor in the application for the strike out claims and the costs incurred in preparing for and attending the hearing on 18 June 2018.[33]I do not consider that the Respondent has made out the aspect of their application relating to the postponements of hearings. The applications for postponements were granted, so the judges concerned must have been satisfied that it was the appropriate course of action on the basis of the Claimant’s ill health. The Respondent’s application appears to be based on the fact of the postponements rather than any detailed analysis of why the postponements amounted to unreasonable conduct on the Claimant’s behalf.[34]I have considered what effect the unreasonable conduct I have found the Claimant to have carried out had on the proceedings. This is difficult to say because I am considering a hypothetical situation. Depending on what the advice was, it is possible that the Respondent may not have made their strike out application; or that, if they had made such an application, that it would not have been successful. From reading paragraphs 66.1 – 66.10 of my strike out judgment, it can be seen that the Claimant’s unreasonable conduct was one factor, not the only factor in my decision.[35]Having found that the Claimant did conduct the proceedings unreasonably, to the extent I have identified above, I considered whether or not to exercise my discretion to make an award of costs. I have considered that it would be appropriate to do so in this case. I have sympathy for the Claimant’s ill health; and sympathy for the difficulties on litigants in person in complex litigation. I am also mindful that it is important that litigants who behave unreasonably can expect to face consequences of their unreasonable conduct. As referred to in the Tribunal’s overriding objective, Tribunals are required to deal with a case fairly and justly; and justice involves justice to both sides. The Respondent is a charity, dealing with vulnerable individuals, and it has incurred very large sums defending these proceedings.[36]I have, next, considered what the extent of the costs award should be. The costs claimed by the Respondent for breaches of Tribunal Orders that I have found to amount to unreasonable conduct, are £1,516.50 plus VAT. The costs claimed by the Respondent of their strike out application claim, which I have found, at least to a limited extent, to be attributable to the Claimant’s unreasonable behaviour are £9,320 plus VAT. The latter sum in particular appears to be high and higher than I would award had I been sitting as an Employment Judge in the County Court making an assessment of costs on a standard basis.[37]I have also considered Rule 84 of the Employment Tribunal Rules, namely the Claimant’s ability to pay.[38]It would have been helpful if the Claimant had responded to my invitation to set out his financial circumstances. I invited him to do so in an attempt to assist him, as a litigant in person, in setting out his case.[39]I have in mind, however, that when Employment Judge Prichard made an order for costs against the Claimant in the sum of £2,000 at the hearing he conducted on 29 September 2015 he gave consideration to the Claimant’s means in paragraphs 48 to 51 of his judgment. He set out details of the evidence the Claimant had given to him on oath about his means. This showed him of being of limited means. He referred to it being wrong if he would just make a token costs order but that he would wish to take the Claimant’s means into account under Rule 84 of the 2013 Rules.[40]Although the Claimant has not given the details of his means that I required, it appears likely to me that his financial circumstances are no better, and quite possible worse, than they were when considered by Judge Prichard. He has lost his job with the Respondent; and, although the Claimant has not given details of his circumstances, it appears unlikely in view of his health that he has obtained new employment.[41]I have taken account of the Claimant’s means and all the matters referred to in my decision above. I order the Claimant to pay a contribution to the Respondent’s costs in the sum of £2,000.