Mr S Nwogu v Dimensions UK Ltd and others: 3307097/2022
JUDGMENT
The claim is struck out. ORAL REASONS GIVEN AT THE HEARING[1]The claimant’s ET1 was presented on 17 June 2022. Case Management Orders made on 24 October 2022 required the claimant to send the respondent a schedule of loss by 22 November 2022, and to send the respondent documents relevant to the claim by 20 December 2022. The claimant has not complied with those orders. (The claimant was also required to write to the respondent by 22 November 2022 saying what physical or mental impairments he relies on. He did not do so. However that order appears to have been a mistake, since the claimant has not made a claim of disability discrimination.)[2]Ms Miller, solicitor for the respondents, has attempted to contact the claimant by letter, by email, and via ACAS, without success. She has had no correspondence from the claimant since his ET1. She applied for the claim to be struck out on 21 December 2022. On the same date she sent a copy of the Case No: 3307097/2022 10.2 Judgment - rule 61 February 2018 respondent’s application to the claimant, explaining that if he wished to object to the application he needed to do so as soon as possible.[3]By a letter dated 17 February 2023 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because: the claimant had not complied with Case Management Orders dated 24 October 2022. it has not been actively pursued. The letter was clear that if the claimant wished to object to the claim being struck out, he should give reasons in writing, or request a hearing at which he can make them, by 9 am on 20 February 2023, before the start of the listed hearing.[4]The tribunal clerk checked at 9:37 am, and the claimant has failed to make representations in writing why his case should not be struck out, or to request a hearing.[5]A Notice of today’s hearing was sent to the claimant on 24 October 2022. He did not respond to the respondent’s letter to him, sent by special delivery on 2 February 2023, asking for his comments on the proposed list of issues. Despite the tribunal’s two attempts to ring the claimant this morning, by 10:40 am he had still not attended the hearing.[6]Under rule 47, it a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. I decided to proceed with the hearing and hear to respondent’s application for strike out, taking account of the two attempts made by the tribunal to ring the claimant this morning.[7]The tribunal is able under rule 37 to strike out a claim for non-compliance with an order of the Tribunal or on the grounds that it has not been actively pursed. Rolls Royce plc v Riddle 2008 IRLR 873, EAT, paragraphs 19 and 20, makes clear that there is an expectation that cases of failure to actively pursue a claim will typically fall into one of two categories. The first is where the default is intentional and shows disrespect for the tribunal and/or its procedures. It is quite wrong for a claimant, who has started a claim which he should realise affects the tribunal and the use of its resources, and affects the respondent, to fail to take reasonable steps to progress his claim in a manner that shows he has disrespect for the tribunal and/or its procedures. The second is where there has been inordinate and inexcusable delay so as to give rise to a substantial risk that a fair trial would not be possible, or there would be serious prejudice to the other party. 7. I am satisfied that the claimant has failed to comply with tribunal orders regarding a schedule of loss and disclosure, and that he has not actively pursued the claim. Had he attended the hearing today, it should have been possible to make orders to ensure that fair trial was still possible in August 2024. However in the circumstances of his failure to engage with the respondents’ solicitor, his failure to respond to the tribunal’s Strike Out Warning of 17 February 2023, and his failure to attend the hearing today, I consider that it is more likely than not that his failure Case No: 3307097/2022 10.2 Judgment - rule 61 February 2018 to comply with tribunal orders made on 24 October 2022 is intentional, and disrespectful of the procedures of the tribunal and its orders.[8]The claim is therefore struck out.[9]The hearing fixed for 19 August 2024, 20 August 2024, 21 August 2024, 22 August 2024, 23 August 2024 will not take place.REASONS
I was provided with a copy of the claimant’s application for reconsideration on 9 June 2023. The claimant’s claims were struck out at a hearing on 20 February 2023. The judgment (which includes a record of the oral reasons given at the hearing) is dated 20 February 2023. It was sent to the parties on 2 March 2023. An application for reconsideration must be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record of the original decision was sent to the parties: rule 71. The claimant applied for reconsideration, and for an extension of time in which to present his application, in an email sent to the tribunal at 20:49 on 21 March 2023. Following correspondence from the tribunal, the claimant has provided evidence that, on 8 April 2023, he sent the Respondents a copy of his application. His application for reconsideration was therefore made late, and was not copied to all the other parties when it was made. The claimant seeks an extension of time for presenting his application on the basis that the judgment was not Case No: 3307097/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72 delivered until 15 March 2023. Whether or not that is the case, the claimant says that he rang the tribunal on the day of the hearing, but was not connected to the hearing, and that his email of the same day seeking an adjournment was not taken into account. It is in the interests of justice that the substance of these complaints be considered, rather than dismissed on purely procedural grounds. I therefore extend time for the presentation of the application for reconsideration until 22 March 2023. I also extend time for compliance with the requirement to copy the application to all the other parties until 8 April 2023. There is no reasonable prospect of the original decision being varied or revoked, for the following reasons. The hearing on 20 February 2023 was listed to start at 10 am. The tribunal attempted to ring the claimant twice but by 10:40 he had still not attended. The hearing proceeded in his absence, and judgment was given striking out his claim. The hearing ended at 10:50. The claimant later responded to a call from a tribunal clerk, and spoke to Watford Employment Tribunal hearing centre. During his conversation he sent an email from his phone. The claimant’s email was sent at 11:18, and asked for an adjournment. By this time the hearing had already ended, and his claims had already been struck out. I considered that the appropriate way forward was for the judgment to include the oral reasons given at the hearing. Having considered them, the claimant would be able to seek a reconsideration if he wanted. The claimant emphasises in his application that his mother died on 31 October 2022, and that he was travelling between 19 December 2022 and 4 January 2023 for her funeral. He says that “I was unable to receive letters from the employment tribunal during the time cited in its judgment”, and that he did not receive notification of the hearing. He also says that he did not receive a letter from the Tribunal dated 17 February 2023 (the letter which gave him an opportunity to make representations or request a hearing as to why the claim should not be struck out). He says that he did not receive the correspondence from respondent mentioned in the judgment. In particular he says that he did not receive the respondent’s letter to him of 2 February 2023 (sent by special delivery, asking for his comments on the proposed list of issues). The tribunal sent the claimant notification of the hearing on 24 October 2022, and sent him a strike out warning on 17 February 2023. The correspondence from the respondent to the claimant referred to in the judgment was included in the hearing bundle. The claimant’s application includes no reason for accepting his assertion that he was unable to receive letters from 24 October 2022 until the date of the hearing. Nor is there any reason to accept that he did not receive any of the correspondence notifying him of, or referring to, the hearing. Given the number of letters sent to the claimant, I see no reason to accept that the claimant first learnt of the hearing on the day of the hearing itself. There is no reasonable prospect of the original decision being varied or revoked on the basis of the reasons given the claimant’s application for reconsideration, which is therefore refused. Case No: 3307097/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72