Mr P Bahad v HSBC Bank plc and Resource Solutions Ltd: 3201321/2020
EMPLOYMENT TRIBUNALS
Case No 3201321/2020
Between
Mr P BahadClaimantHSBC Bank plc and Resource Solutions LtdRespondent
Before
Employment Judge HousegoIn person for claimantDate 18 June 2024
JUDGMENT
The claims are dismissed.
REASONS
[1]The Claimant brought his claim against 2 Respondents, the 2nd being an agency, the 1st the company where they placed him. The Claimant had his own personal service company. By reason of changes to IR35, HSBC decided that all its contractors would have to become employees of the agency which placed them with HSBC. The Claimant was offered and accepted such a contract. The effect is a reduction in net pay, as PAYE and NI is deducted at source. The Claimant indicated that he would not sign (and so would leave the 2nd Respondent and cease to work at the 2nd Respondent. Soon afterwards the Claimant’s line manager, Joseph Kavanagh, brought the relationship to an end. The reason given in the ET3 is:[12]“Around the same time as the uncertainty as to whether the Claimant was going to remain providing his services to HSBC post 1 February 2020, negative feedback had been received within HSBC regarding the Claimant in his role, principally around his communication style and lack of stakeholder engagement / management. This was raised with the Claimant but he failed to take it on board or act accordingly. In addition, the programme the Claimant was working on was moving from the analytical to the delivery stage when such communication and stakeholder engagement skills would become more important.[13]As a result of this feedback and lack of acknowledgment or improvement from the Claimant, HSBC decided therefore that they no longer required the Claimant's services. 2. His claim was listed in paragraph 8.1 of the ET1 claim form as race discrimination, religious discrimination, a redundancy payment, holiday pay, and under the heading “another type of claim” a “Covid-19 furlough payment”. There is reference in the statement of claim to “whistleblowing” but a public interest disclosure claim is not readily apparent from the narrative. (There is reference to a referral to the FCA, but it is not linked to any detriment, and, as Ms Stephens pointed out, there was no disclosure until after the Claimant had been given notice.) 3. A case management hearing was listed, and the Respondents both sought strike out orders in respect of the claims. The hearing took about 1¼ hours, primarily in the Claimant explaining his case to me. 4. The hearing was to consider the Claimant’s application to strike out the ET3 under Rule 37, which, so far as relevant states: “Striking out 37.(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it … has no reasonable prospect of success; 5. The case law indicates that this is not an easy test to meet. In most of the cases relating to discrimination cases it is the Claimant who appeals the striking out of his or her claim. The case law is set out fully in Malik v Birmingham City Council & Anor (Striking-out: dismissal) [2019] UKEAT 0027. Discrimination claims is particularly sensitive. Striking out a claim ends it totally, and without evidence being heard. For public policy reasons this should be done in race (and other) discrimination cases in only the clearest cases. I have borne this in mind. 6. Para 29 onward sets out the law, and para 31 states: “In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that: (1) only in the clearest case should a discrimination claim be struck out;(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;(3) the Claimant's case must ordinarily be taken at its highest;(4) if the Claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts." 7. I asked the Claimant about his claim against the 2nd Respondent. The Claimant said that he had spoken to Acas and they had said that he had to claim against the 2nd Respondent as they had been his employer. I asked if the 2nd Respondent had done or not done anything because of his race or religion. They had not. The Claimant did not claim to have made a public interest disclosure concerning the 2nd Respondent. He felt they could have been more helpful by mediating between him and the 1st Respondent and helped him get a payment holiday on his mortgage, but that is not a basis for a claim. He had expected them to get him a Covid-19 CJRS payment. He did not know why they should pay him a redundancy payment. He accepted that he had not been employed by them for 2 years. I asked who discriminated against him, and the Claimant said that it was HSBC staff. He had blown the whistle and he had lost his income. I asked why that might be the fault of the 2nd Respondent. The Claimant said that it was not their fault. I asked why he thought they might be liable for anything the 1st Respondent had done. The Claimant said that he was not saying that they were. He had to include them as a respondent because Acas had told him that he had to do so. While he thought they could have done more, he had not included anything in his schedule of loss about the 2nd Respondent. I asked if he meant that he had no reason to take action against the 2nd Respondent. The Claimant said that he had not – he was suffering, he said because HSBC had done what they should not. He sought remedy only against them. 8. Accordingly, as the Claimant agreed that he had no claim against the 2nd Respondent I dismissed all claims against them, and Ms Meenan left the telephone hearing. 9. I asked the Claimant about his public interest disclosure claim. After some time it emerged that the 4th paragraph of page 2 of the statement of claim refers to the detriment of a job application within HSBC not being taken further in late March 2020. The Claimant thought this might be victimisation because of his disclosure. The Claimant said that by reason of race or disclosure he had been dismissed and lost his income. 10. I asked why the Claimant thought any of his issues with HSBC were connected with religion. The Claimant said that it was a difference between him and others, and so he had ticked all the boxes where there was a difference. That was race and religion. I asked how religion was relevant to what happened to him with HSBC. The Claimant said that he did not eat meat and so there was a difference at lunchtimes. I asked the Claimant if he could identify anything about his claim to which religion was relevant, and he said that he could not. I said that I would strike out the religious discrimination claim, because it had no reasonable prospect of success. The Claimant said that he had no objection to that – it was a point of difference was all, and he had simply ticked all the boxes where there was a difference. 11. The Claimant accepted that he was not entitled to a redundancy payment (from anyone, and not from HSBC who had never employed him). Accordingly I struck out that claim. 12. The Claimant said that had he not been dismissed by HSBC he would have been eligible for a furlough payment. That is a proposition that cannot succeed. First the 1st Respondent did not employ the Claimant and a CJRS payment is made only to employees. Secondly, by the time the CJRS started the Claimant was not employed by, or working at, either Respondent. It is no different to wages not earned because dismissed: which is part of remedy where there is a successful claim, and not a claim itself. In so far as that attaches to any of the claims, I dismiss it. 13. The Claimant accepted that he had no money claim against the 1st Respondent, as it had always been the 2nd Respondent which had paid him. In so far as there are money claims against the 1st Respondent I dismiss them.[14]I asked about the race discrimination claim. This was based on the Claimant’s Indian ethnicity. In one of his emails expanding on his claim, the Claimant said that this was “clever implicit racism” based on a colonialist view of India. It was not a nationality claim.[15]I asked what bad things had happened to him that he said were at least partly because of his Indian ethnicity. The Claimant said that Joseph Kavanagh had discriminated against him. He had reported to Joseph Kavanagh, who had fabricated a reason to get rid of him. The terms of the contract he had been offered were not right. He should have had a higher daily rate than before, and that had not happened. He was working in a small team and that meant more work, and the change from limited company status to employee meant less money. He had no reason to think that he had been treated any differently to anyone else.[16]His claims for race discrimination and for public interest disclosure seemed to centre on Joseph Kavanagh, and I asked him to expand on what he said happened. First the Claimant said that his disclosure was on 03 February 2020, and was to the Financial Conduct Authority. I pointed out that his emails said this was on 03 April 2020: he said that at the end of March 2020 he should have been interviewed for another role in HSBC but was not. He made reference in his claim form to a disclosure to the HSBC Confidential whistleblowing process, at 27 February 2020.[17]The Claimant accepted that 03 April 2020 was after he left HSBC, and the 2nd Respondent, so that his dismissal could not be connected with it, as something that happens after something cannot be the cause of it.[18]The Claimant said that he had made an internal public interest disclosure about Joseph Kavanagh on 28 February 2020. He did not know if or how Joseph Kavanagh could have known of a report that was in a process expressly stated to be confidential.[19]Ms Stephens pointed out that it was on 28 February 2020 that the Claimant made his disclosure to the HSBC’s confidential reporting department, and that was during the Claimant’s 4 week notice period, which had been given on 12 February 2020, so that again it was impossible for the ending of the employment to be because of the disclosure.[20]After some considerable discussion the Claimant said that he had applied for another role within HSBC on 31 March 2020 and that might have been because of his internal disclosure. He accepted that Joseph Kavanagh had no connection with that other role or recruitment for it. The Claimant thought that by not appointing him to another role HSBC was preventing him accessing their systems which might enable them to avoid him being further involved in the disclosures he had made to the FCA. The outcome of that disclosure had been notified to him, and it was that there was said to be no evidence of wrongdoing. There is also the point Ms Stephens made – the end of March 2020 was a time when recruitment was largely on hold throughout the country, lockdown having started about a week before.[21]This is speculative, at best. There is no real prospect of success in a claim that the Claimant was victimised by not being taken on in another role because of a public interest disclosure, for the reasons above. Accordingly I struck out the claim for public interest, however framed. It would have needed an application to amend, which would not have passed the tests in Selkent1.[22]I note also (and in addition) there is only a hint of a public interest disclosure claim in the claim form, and I do not accept that this was because the Claimant put his Covid-19 claim in the box marked “other claims”.[23]I asked the Claimant to return to his race discrimination claim. The Claimant said that he had been dismissed, but named 3 people who were white and had not been dismissed. He said that may have been because he was of 1 Selkent Bus Co Ltd v Moore: EAT 02 May 1996[1996] IRLR 661 Indian ethnicity, and that it was possible that Joseph Kavanagh may have benefitted financially in some unspecified way by so doing.[24]The Claimant had not previously raised this as an allegation, in his claim form, emails of 26 August 2020 and 07 September 2020, or in his PowerPoint “walkthrough” of the case. The Claimant repeatedly said that he had ticked the boxes at 8.1 of the claim form whenever he could see a difference (in the sense of a protected characteristic), not because he had any sense of grievance related to that characteristic. The requirement for some evidence of a causal link between that characteristic and the detriment1 is absent in this claim.[25]I bear fully in mind the case law guidance. There are no core issues of fact to be decided. Taking the case at its highest this is at best a speculative claim based on the Claimant’s unhappiness at his role at HSBC ending. Even the claim form says only that it is “possible” that race was a factor. There is no reasonable prospect of the Claimant establishing facts from which a Tribunal might find that there was a taint of race discrimination in the non-selection of the Claimant for a new role with HSBC, or in his original dismissal. There is no reasonable prospect of success of any other race discrimination claim of the Claimant.[26]To summarise, there are three separate stages with an unless order. These are making the order, deciding if there has been compliance and issuing a notice of dismissal and application for relief to set aside the order. Each stage is separate.[27]When an unless order has been made the Tribunal has no discretion about whether to dismiss a claim or response where the order has not been complied with in any material respect. Therefore, the only issue for the Tribunal to consider is whether there has been material compliance with the order. In Mr A Minnoch and Others v Interservefm Ltd and others 2023 EAT 35 the EAT summarised the correct approach as follows: “33.7 at this stage the employment tribunal is giving notice of whether there has been compliance – it is not concerned with revisiting the terms of the order 33.8. particularly if there has been some asserted attempt at compliance, careful thought should be given to whether an opportunity should be given for submissions, in writing or at a hearing, before the decision is taken 33.9. the question is whether there has been material compliance 33.10. the test is qualitative rather than quantitative 33.11. the approach should be facilitative rather than punitive 33.12. any ambiguity in the drafting of the order should be resolved in favour of the party who was required to comply”[28]This approach was revisited in the recent case of Bauhaus Educational Services Limited v Mr O Elemide 2023 EAT 161. The background to this case is very similar to the current case so we have set this out in more detail. An unless order was made that the claimant serve his statement on both the respondent and the Tribunal by a certain date. The claimant served his statement on the Tribunal but not on the respondent. When the respondent flagged up the lack of compliance the claimant sent his statement. This was some time after the date for compliance under the unless order but before the hearing. The Tribunal did not issue a notice dismissing the claim. This decision was appealed by the respondent. The EAT concluded as follows: “(a) this order is clear: it requires one step which was either done or it was not, service of the witness statement on the Respondent’s representatives. (b) As a matter of fact – and there is no dispute about this – the witness statement was not served in time on the Respondent’s representatives. It seems to me perfectly clear that the only correct conclusion that could be reached is that the Claimant had not complied with the Unless Order because he failed to comply with the requirement to serve his witness statement on the Respondent’s representative. I have to say that there was an error of law on the part of the EJ in reaching the conclusion that the Claimant had complied with the terms of the Unless Order by providing the witness statement to the ET” The EAT overturned the decision of Employment Tribunal and the claim was struck out, but with the claimant having the opportunity to apply for relief from sanction. Discussion and
Conclusion
[29]When making the decision on whether to issue notice of dismissal under section 38(1) Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 neither of the following are relevant: 29.1. the procedural history of this case; or 29.2. the current point of proceedings, including the fact that the final hearing was due to start today.[30]The only matters for us to take into account are the terms of the unless order and whether or not there has been material compliance.[31]The order required the claimant to serve his witness statement on the respondent and the Tribunal by 8am on Monday 17 June 2024. The order was clear and unambiguous. There was a one thing that the claimant needed to do. The order had also been amended already to allow an extension of time for the claimant to comply.[32]The relevant findings of fact on what happened are as follows: 32.1. The claimant sent a pdf document to the respondent before 8am. It was password protected and he did not provide the password therefore the respondent could not read the statement. 32.2. The claimant said he would provide the password later. The respondent asked him to provide the password by 8am. He did not do so. 32.3. In fact the claimant did not provide the respondent with the password at any point before the hearing was due to start at 10am on 18 June 2024. 32.4. At no point did the claimant send the witness statement to the Employment Tribunal, which he was also required to do by 8am on 17 June 2024.[33]The claimant has not complied with the terms of the unless order. He did not provide the respondent and the Employment Tribunal with his witness statement by the deadline. Provision of a statement to just the respondent but password protected is not material compliance.[34]As noted above some of the facts of this case are very similar to that of Bauhaus Educational Services Limited v Mr O Elemide 2023 EAT 161. The terms of the unless order were almost identical, in that the claimant was required to serve his witness statement on both the respondent and the Employment Tribunal. The EAT found that the notice of dismissal ought to have been issued because the claimant did not serve the statement on the respondent, just the Tribunal. In the current case the claimant’s noncompliance is greater in following respects: 34.1. Although he purported to serve the statement on the respondent he did not do so in any meaningful sense as the statement could not be accessed and read without the password. 34.2. The claimant did not make any attempt to rectify the situation once this error was flagged up. On the contrary he said he would provide the password but failed to do so.[35]Following the reasoning in Bauhaus Educational Services Limited v Mr O Elemide 2023 EAT 161the only possible conclusion is that the claimant has not complied with the unless order and notice of dismissal must be issued.[1]On 18 June 2024 Judgment was sent to the parties dismissing the claimant’s claim. The claim was dismissed because the claimant had not complied with the terms of an unless order dated 11 June 2024, as amended on 14 June 2024. The claimant was dismissed under rule 38 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.[2]The final hearing of the claim was listed to start on 18 June 2024. The Unless Order had stated that the claim would be struck out unless the claimant provided the respondent and the Tribunal with his witness statement by 8am on Monday 17 June 2024. The hearing started on 18 June 2024. The claimant had not complied with the unless order and did not attend the hearing. The judgment was given dismissing the claimant’s claims.[3]On 20 June 2024 the claimant sent an email to the Employment Tribunal asking for the judgment to be reconsidered. The reasons the claimant gave are summarised as follows: 3.1. the claimant says he did comply with the Unless Order and provide his witness statement; 3.2. on 17 June 2024 the claimant had made an application to the Tribunal and had not received a response to this, so the parties were not prepared for the hearing; and 3.3. on 17 June 2024 the claimant had made an application to the Employment Appeal Tribunal.[4]Under Rule 70 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.[5]An application for reconsideration shall be presented in writing within 14 days of the date upon Judgment is sent to the parties. The Judgment in this case was sent to the parties on 18 June 2024.[6]In this case the claim was dismissed due to non-compliance with an unless order. Rule 38 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2023 contains the provisions relating to unless orders. Under Rule 38(2): “A party whose claim or response has been dismissed, in whole or part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.”[7]In his email the claimant asked that the judgement dated 18 June 2024 was reconsidered. He did not expressly ask for the Unless Order to be set aside under Rule 38(2) and he did not ask for a hearing to consider this decision.[8]On the face of the application it is for reconsideration under Rule 70 Employment Tribunals (Constitution and Rules Of Procedure) Regulations 2013. Given that judgment was made in accordance with Rule 38 of the Regulations and the claimant is not represented I have considered the application as both an application for reconsideration and an application under Rule 38(2) for the Unless Order to be set aside. Reconsideration under Rule 70[9]Under Rule 70, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[10]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the Judgement being varied or revoked. Essentially, this is a reviewing function in which the Employment Judge must consider whether there is a reasonable prospect of reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision.[11]If the Employment Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing. The Employment Judge’s role therefore upon the considering of the application upon the papers initially is to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of reconsideration hearing.[12]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration: 12.1. Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted. 12.2. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. 12.3. It is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. 12.4. Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.[13]In this case the claim was struck out because the claimant had not complied with an Unless Order. In his application the claimant has asserted that he did provide his statement because he sent a document that was password protected. He then refers to other applications he made which had not been dealt with before his case was struck out.[14]This point about the password protected document was already considered when I decided whether the claimant had complied with the Unless Order. I concluded the claimant had not complied with the Unless Order. The claimant had not provided a readable witness statement to the respondent. He also had not sent any statement, password protected or otherwise, to the Tribunal. This was required by the Unless Order. The failure to send any statement to the Tribunal meant the claimant had not complied with the Unless Order. Having not complied with the Unless Order the Tribunal had no discretion, it had to give notice striking out the claim.[15]I am not satisfied that it is in the interests of justice to reconsider the Judgment. The case was struck out on the first day of the hearing because the claimant had not complied with the Unless Order. Nothing that the claimant has raised in his application for reconsideration indicates that this decision was incorrect. There is no new evidence or information. The claimant merely asserts he had complied with the order, despite the finding by the Tribunal that he had not. Application to set aside the Order under Rule 38(2)[16]If a claim is dismissed due to non-compliance with an Unless Order a party can apply to have the order set aside on the basis that it is in the interests of justice to do so. This is often referred to as relief from sanctions.[17]In Minnoch and ors v Interserve FM Ltd 2023 ICR 861, EAT the Employment Appeal Tribunal gave guidance on the factors for the Tribunal to consider in such applications. These are: 17.1. it involves a broad assessment of what is in the interests of justice; 17.2. the factors which may be material to that assessment will vary considerably according to the circumstances of the case; 17.3. they generally include: 17.3.1. the reason for the default – in particular whether it was deliberate 17.3.2. the seriousness of the default 17.3.3. prejudice to the other party 17.3.4. whether a fair trial remains possible 17.4. each case will depend on its own facts.[18]In this case the relevant circumstances of the case are as follows: 18.1. The hearing was listed to start on 18 June 2024. The case was issued in 2020, so a considerable period of time had already elapsed since the events that form the basis of the claim. 18.2. The original Tribunal case management orders stated witness statements should be exchanged by 23 October 2023. The Unless Order gave the claimant until 8am on the 17 June 2024 to provide his statement, the day before the final hearing. 18.3. The Unless Order was made following months of correspondence between the parties in which the claimant refused to agree with the respondent a new date to exchange statements with the respondent. To move matters forward the respondent had already sent their statements to the claimant on 24 May 2024. These were password protected because exchange should be mutual and the claimant was not ready to provide his statement. 18.4. The claimant had sought a postponement of the final hearing. He did not provide good reasons for this postponement. He just stated that it should not take place until the latter half of 2025. This postponement was refused. 18.5. The Unless Order was made at a Preliminary Hearing arranged at short notice on 11 June 2024 to ensure readiness for the hearing. The claimant requested a postponement of that preliminary hearing, which was refused. The claimant did not attend that preliminary hearing. 18.6. On 12 June 2024 the claimant made further applications to postpone the final hearing. This was refused but on 14 June 2024 the time line for compliance with the Unless Order was extended. 18.7. The claimant did not comply with the Unless Order. He sent a document to the respondent that was password protected. He said this was his witness statement. He said that he would arrange a time to exchange passwords but did not do so. Instead, the claimant proceeded to send further applications to the Tribunal. This included a demand that the final hearing be converted to judicial mediation. 18.8. The hearing started on 18 June 2024. By this point the claimant had still not provided his witness statement to the respondent or the Tribunal. All he had sent was a pdf which was password protected. This may not have been a witness statement. 18.9. The claimant did not attend the hearing and did not provide a good reason for his non-attendance.[19]Looking at the four factors set out in Minnoch I have concluded the following based on the above circumstances of this case: 19.1. By 11 June 2024 there was a real risk that the claimant’s continued refusal to agree a timetable to exchange statements with the respondent would jeopardise the possibility of a fair hearing going ahead on 18 June 2024. There was a good reason for making the Unless Order that the claimant provide his witness statement. The claimant’s conduct to date indicated that without further intervention he would not provide his witness statement or comply with directions. 19.2. The claimant is solely responsible for the default and failure to comply with the Unless Order. He was given additional time to comply with the order but still did not do so. Meanwhile he continued to engage with the respondent and Tribunal by sending further applications, including a demand that the hearing was postponed or converted to judicial mediation. Yet having sent a document he said was his witness statement he failed to do the simple task of providing the password which could have gone some way to remedying the situation. 19.3. The claimant’s default follows months of correspondence in which he made repeated unwarranted applications for disclosure and refused to cooperate with the respondent in preparing for the hearing. 19.4. The claimant did not attend the first day of the hearing to make any submissions on the Unless Order or explain why he had not complied and provided his statement. 19.5. Looked at as a whole, taking into account the claimant’s repeated attempt to postpone the hearing until 2025, the claimant’s refusal to comply could be viewed as a deliberate attempt to prevent the hearing going ahead on 18 June 2024. 19.6. The respondent was fully prepared for the previous hearing, the claimant was not. 19.7. Due to the claimant’s non-attendance at the hearing, had the claim not been struck out due to non-compliance with the Unless Order, the Tribunal may have decided to strike out the claim under Rule 47 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2023.[20]In summary, the claimant’s conduct from January 2024 onwards (and to some extent earlier) was not in accordance with the Overriding Objective. He refused to cooperate with the respondent and repeatedly did not comply with orders. As the hearing date neared, rather than focus his efforts on ensuring his case was prepared the claimant engaged in a course of conduct that derailed the possibility of a fair hearing taking place on the 18 June 2024.[21]If the Unless Order were set aside then a new hearing date would need to be listed. This would effectively reward the claimant for his conduct, as he was seeking a postponement until late 2025 in any event. On the other hand, it would be seriously prejudicial to the respondent, who was already fully prepared on 18 June 2024. They would need to incur further costs and spend time preparing for a relisted hearing. Based on the claimant’s conduct to date, there would also still be uncertainty about whether the claimant would actually comply with any further directions.[22]In these circumstances setting aside the Unless Order would not be in the interests of justice. Conclusion[23]The claim remains struck out. The application for reconsideration is refused. No relief from sanctions is granted.