Miss Bridget LockClaimantJohn Colet SchoolRespondent
Before
Employment Judge TobinMs B Clayton (instructed by counsel) for respondentDate 29 January 2023
JUDGMENT
The claimant’s claim is struck out under rule 37(1)(b) and rule 37(1)(c) of schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 on the basis that the manner in which the proceedings have been conducted by the claimant has been scandalous, unreasonable or vexatious and that the claimant has not complied with orders of the Employment Tribunal.
REASONS
[1]The hearing was ordered by Employment Judge Halliday on 18 November 2022 [Hearing Bundle, pages 209-211] to hear several applications which were listed, in order, as follows:a. The respondent’s application to strike out the claimant’s claims because she has not provided the further particulars of her claim as ordered to do so.b. The claimant’s application for a finding that the respondent had failed to comply with the Tribunal’s order in relation to specific disclosure and, if specific disclosure is not then made, for the respondent’s Response to be struck out (i.e. an unless order) and/or for an order that requires the respondent to comply with previous Tribunal orders for specific disclosure.c. If the respondent’s application to strike out is not successful, then the respondent will seek an unless order against claimant.d. Following consideration of the applications there will then be discussion about the existing case management orders and the Tribunal will consider any application to vary existing deadlines in light of the hearing date and make further case management orders as necessary to progress the matter to final hearing.[2]This was the third Preliminary Hearing.[3]The respondent had prepared a hearing bundle in accordance with Judge Haliday’s orders. This hearing bundle ran to 211 pages and had been provided to the claimant in accordance with the appropriate orders. The claimant complained at the hearing that she did not have a paper bundle. Ms Clayton said that a number of copies had been sent to the Tribunal, which the clerk could only locate for the afternoon session. We worked in the main from the electronic bundle, which everyone could access. The case[4]The case was a summarised by Employment Judge Lewis on 15 December 2021. In brief, the claimant was employed by the respondent as an administrative assistant and library assistant for around 7 months, although the respondent said that she only actually worked for the school for around 7 weeks. The claimant was dismissed, I believe, without explanation, although the respondent contended that the claimant was assessed to be unsuitable for her work and provided her with 6-weeks’ notice of dismissal.[5]The claims are difficult to determine, although Judge Lewis identified health and safety dismissal (pursuant to s100 Employment Rights Act 1996 (“ERA”)) and breach of contract (or wrongful dismissal) in respect of the claimant’s notice pay. Judge Lewis also identified the claimant raising further claims at the case management hearing for which permission to amend the Claim Form might be required. These claims were automatic unfair dismissal for making a whistleblowing or protected disclosure (pursuant to section 103A ERA) and detriment claims relating to health and safety cases and protected disclosures (ss 44(1)(c)-(e) ERA and s47B ERA respectively). Recording of this hearing[6]Shortly before the Preliminary Hearing scheduled in September 2022, the claimant wrote to request that she record this hearing. On 9 September 2022, Employment Judge Quill refused the claimant permission to make an audio recording [see Hearing Bundle, page 197-198].[7]The claimant wrote to the Tribunal again yesterday to request that she be able to record the hearing. Her reason was that she did not feel that Judge Halliday’s record of the previous hearing was a fair record. The Tribunal clerk informed me that the claimant referred to her previous email and repeated her request to record hearing this morning. I had read the Claim Form and that disclosed no disability or significant impairment nor had any been raised from my reading of the file. I asked the clerk to relay back that we do not permit recordings, but she could raise this at the beginning of the hearing. At the outset of the hearing, I first clarified that everyone had access to the documents, and then I proceeded to deal with the claimant’s request to record the hearing.[8]I said that I had read her application and that the Employment Tribunal did not normally allow any party to record the hearings. I said I was unsure whether or not I had a discretion to allow the claimant to record proceedings but if I did the reasons given in the written application were not sufficient for me to exercise discretion, i.e. she challenged the previous Judge’s account. I explained to the claimant the consequences of recording proceedings where no permission had been given because she had laid her mobile phone and laptop on the desk in front of her. I said to record this hearing without permission was a criminal matter and such breach of process could lead to her claim being struck out. When the claimant later said that she felt “threatened” by my advice as to the consequence, I explained to her that I was not going to demand that she surrendered her mobile phone nor was I going to interrogate her computer, despite her putting these on the desk in front of me. I was not going to go through her personal equipment, which is why I advised her of the consequences[9]The claimant was upset that I did not allow her to record the hearing and she asked for someone that she could talk to about her “well-being”. I adjourn the hearing (for 30 minutes) and I asked the respondent’s representative to get the claimant a cup of tea. I then separately asked the Tribunal clerk to get her a cup of tea and a glass of water.[10]When we recommenced, the claimant insisted that we discuss her application. She said that there were further things she wanted to add. I listened carefully and there was no substantial additional point other than she disagreed with the records provided by previous judges. She said these Judges were not reliable and that she wanted a tape recording of the hearing herself. The claimant said that she wanted the recording as a reference point so if there is a dispute, she could revisit the recording and see who is telling the truth. She said that that was good reason in itself. The claimant repeatedly insisted that the respondent had provided false information throughout her claim. She said the respondent was dishonest and its wrongdoing was serious unlawful conduct. She repeatedly insisted that the Tribunal had abrogated on its responsibilities to tackle the respondent’s unlawful behaviour. When I queried these statements, the claimant would not answer any question but said things like “you know” and “it’s obvious”. The claimant said that if she felt that the respondents were conducting themselves in a reasonable or proper manner, then she would not need to record this hearing and she complained against the respondent’s professional behaviour. The claimant also said that the bundle was secured in favour of the respondent. Ms Clayton objected to this behaviour and the comments about the hearing bundle and said that the bundle had been sent to the claimant for her approval and to add additional documents which she did not. I asked the claimant if there were any further documents she wanted to bring to my attention and she said she did not have any additional documents with her.[11]Ms Clayton said that she opposed the application to record the hearing. She said that she had never heard of a party making an application in such circumstances nor in such an aggressive manner. If the claimant wanted a record of the hearing, then she had a laptop and she could make her own notes. If the claimant did not want to use her laptop for this, then she could make handwritten notes in the alternative. Ms Clayton referred to a case called Heal v Chancellor, Master and Scholars of the University of Oxford and others 2020 ICR 1294 EAT where the Tribunal addressed the issue of recording proceedings, but this was in respect of a reasonable adjustment for the claimant’s disability, and it did not apply to the circumstances.[12]I explained to the claimant that she had not raised a disability or medical issue and I asked if she wanted to raise this now. The claimant objected to Ms Clayton’s reference to a disability-related case, which she contended cast her in a negative light. I explained the issue of possible adjustments and reassured the claimant that we do not make adverse inferences about disability. I asked the claimant she had an undisclosed relevant disability or impairment and she said she had not. I said I had read the file before the hearing and checked box 12 of the Claim Form, which was my practice, and no disability had yet been identified.[13]Notwithstanding that the claimant raise vociferous objections to Ms Clayton raising a disability case which she said implies that the claimant might be disabled, the claimant said that she had been stressed by the proceedings. I was not sure if this was a volte-face, and the claimant was now contending that this was a reasonable adjustment. I asked her was there any correspondence or corroborative documents to suggest any cognitive impairment or memory difficulties and the claimant such as she had not. I asked her if she had any diagnosed condition and the claimant said she had not. I asked her if she felt she had a disability in respect of stress and anxiety and the claimant said that she had not. I think the claimant was annoyed that I raised these matters because she was adamant that the recording was nothing to do with any mental impairment. The claimant said she was not suffering from any disability, she said she was suffering ongoing harassment from the respondent and accused the Employment Tribunal of not doing anything about this.[14]The claimant complained that the Employment Tribunal was not upholding the law and not performing its functions as at previous hearings various Judges had allowed the respondent to harass the claimant. Again she would not provide details.[15]The Employment Tribunal Rules of Procedure 2013 does not explicitly refer to the recording of proceedings. This is neither allowed nor prohibited. There is provision within the Courts Civil Procedure Rules (“CPR”) that deals with recording and transcript of proceedings, although the regime is different. The CPR provides an authorised system of recording proceedings, which is a closed system in that an approved and authorised provider produces a recording for HM Courts & Tribunal use. Parties or members of the public can apply for an “official” transcript for which they pay. Parties or the public are expressly prohibited from using unofficial recording equipment in any court without the express permission of the court. So, the Employment Tribunal’s authority arises from s9 Contempt of Court Act 1981 and it would appear that I do have a discretion in this regard.[16]I explained that my principal concern of an individual recording proceedings is that the Tribunal has no control over such recording and such recording could be distorted, altered, edited or reproduced out of context. Furthermore, the recording could be published in forums where there is little opportunity to safeguard the use such recordings are put to or to properly correct the record. Therefore, I determined that I was not going to allow the recording of this hearing.[17]The claimant’s response was to shout at me “You are joking!”. I challenge his comments, I said such behaviour was not appropriate. The claimant shouted further, “You are not serious”. I told her to modify her behaviour. Throughout the hearing the claimant had talked over both me and Ms Clayton and raised her voice. Following yet another interruption, I raised my voice to her once and told her to be quiet and to stop speaking over me. Specific disclosure[18]Moving on to the applications, I discussed the order for dealing with matters. I proposed at the commencement of proceedings that I would deal with the applications in the order set out by Judge Halliday. However, because of the claimant’s continual interruptions and rowdy behaviour, I decided to deal with her allegation for specific disclosure and that the respondent had failed to comply with the Tribunal order in relation to specific disclosure.[19]I referred to the Tribunal’s last dealing with this matter, which was Employment Judge George’s order of 15 September 2022. I asked the claimant to identify what documents she contends the respondent has in its possession, which might be relevant and which she says the respondent had refused to disclose to her. The claimant replied that it was not her job to keep repeating herself and that she had already made these matters clear to Judge Lewis, who made some orders in this regard before Judge George was involved. We then went through the procedural history and correspondence in respect of the respondent’s disclosure. We went through Judge Lewis’ orders and the respondent reply thereto.[20]Ms Clayton said that the respondent has disclosed everything in its possession relevant to the claimant on 18 March 2022 [HB146]. On 6 April 2022 the respondent solicitor wrote to the Tribunal saying that they are unclear what the claimant contended had not been disclosed. The claimant wrote a lengthy letter on 27 April 2022 [HB116-165] which the respondent reply to on 28 June 2022 [HB173-174]. Ms Clayton said that the respondent has searched across all applicable Google profiles. This amounted to 3 drives which are specific to the claimant’s profiles, or which she might have access to, or which information might be stored upon. This included: a Gdrive, which is an online storage area; another drive, which was an alternative storage area on the respondent’s system; and the Google mail drive. Ms Clayton contended that the respondent had searched all mail, spam and trash folders included where the claimant had been copied as a blank copy or where there were files shared to her. In terms of the G-drive, this included 34 subfolders and a total of 205 electronic files created or shared by the claimant on the end drive and 11 subfolders including “my music” and “my pictures”. There was a total of 77 electronic drives outside these folders and every file and folders had been disclosed to the claimant with only necessary redactions made to the material disclosed. There were no files in the claimant’s Google profile that had not been searched. I pressed Ms Clayton, and she advised me that the respondent had disclosed 500 documents, which amounted to 515 pages.[21]Ms Clayton contended that the claimant’s application for disclosure was a fishing exercise. The claimant anticipated that there was one or more documents that would win her case but, in fact, when the respondent did give full disclosure and there was not any incriminating document, the claimant believed that somehow this was being hid from her. Nothing would change her mind and she would not accept the reality of the process. The impasse was brought to a head by Judge George who made an order so as to solicit the identity of any documents in dispute.[22]Ms Clayton said the claimant’s complaints were wholly out of proportion to the actual dispute. She said that the claimant’s complaints and arguments with the respondent’s solicitors and the Tribunal had gone on for 3 times longer than the claimant’s actual employment.[23]I agree with Ms Clayton and it was clear; the disclosure matter was brought to a head by Judge George on 15 September 2022. Judge George made an order that, should the claimant want to pursue any outstanding disclosure then she needed to provide full details of the matters identified by Judge George at points (a) to (d) of her order. I note that the claimant did not want to get on with other preparation, while (she believed) documents were outstanding but Judge George also warned her that her apparent failure to provide the respondent’s further particulars jeopardised clarifying the issues at the hearing thereby warning the claimant that we needed to press on with case preparation.[24]I was satisfied with Ms Clayton’s explanation of what had been searched. I asked the claimant to tell me what specific documents were missing, and she could not so I determined from listening to the parties, that I was satisfied that the respondent has fulfilled it disclosure obligations, at this stage, and I was not going to make an order for further disclosure. This provoked another outburst from the claimant. I responded by saying that I would break proceedings for an early lunch (it was around 12:30pm). I said if, during the lunch break, the claimant was able to identify the documents identified by Judge George and pursued by me, then I may revisit this, but the claimant had ignored Judge George’s order to date but irrespective of this I was satisfied with Ms Clayton’s explanation in respect of the material released. The claimant’s withdrawal[25]I said that I would deal with the outstanding further particulars application after lunch. The claimant requested an adjournment. When asked, she refused to say why. I determined that it was not appropriate to adjourn at this mid-point. The case was listed for final hearing in 8 months hence and it would be 6 or 8 weeks at the earliest before the Tribunal could accommodate another hearing date. That would lose valuable hearing preparation time unnecessarily and delay further clarifying the issues in dispute. I said we needed to make progress so I could set out further case preparation orders.[26]I said to the claimant that I was not looking to strike out her claim, that would be the last resort. I said that my main consideration was to provide for a fair hearing and if the claimant was prepared to cooperate with the case preparation, then a fair hearing would be possible. I said after lunch we will discuss the timeframe in which the claimant could provide further particulars and the type of order I would make.[27]The claimant did not return after lunch. The Tribunal clerk telephoned her on her mobile phone but, seemingly, her phone was turned off so we restarted 15 minutes later than anticipated. Ms Clayton said the claimant did not inform her she would be leaving. Proceeding following the claimant’s withdrawal[28]The first issue was to consider proceeding in the claimant’s absence.[29]There was no message left with the Tribunal clerk, or anyone else, to explain the claimant’s absence. Ms Clayton said the claimant did not approach her during the lunch break. The Tribunal clerk checked, and no emails have been received by the Tribunal regarding her disappearance. The claimant had not responded to her mobile phone. The claimant had requested an adjournment which was refused so it seemed that she refused to participate further. On this basis, I concluded that the claimant had voluntary absented herself.[30]The case listed for 5-days at the beginning of September 2023 and if we did not proceed today then there may not be enough time to prepare for the final hearing.[31]Ms Clayton said that the claimant obviously did not like the way things had gone, which is why she took herself off. Ms Clayton requested, on behalf of the respondent, that I deal with the remaining applications as listed. She said the claimant had the opportunity to address this application and that she could see little purpose in the Tribunal adjourning such consideration. The claimant was aware this application was supposed to be dealt with today and there was no reason why I should not proceed accordingly.[32]In addition, Ms Clayton said both her instructing solicitor and she had undertaken a significant amount of work for today’s hearing and that the respondent’s costs of her attendance was £1,920.40 plus vat. If issues due to be dealt with had not been dealt with because of the claimant’s poor behaviour then she would have no alternative but to apply for reimbursement of her cost and this should be unnecessary and avoidable if we can proceed with the agenda as set by Judge Halliday.[33]I refused to adjourn before lunch and considering that the claimant had voluntarily absented herself, I could not see no reason for any adjournment. The respondent’s application to strike out the claimant’s claim[34]Ms Clayton contended that while proceedings had been commenced in December 2020 and little or no progress had be made in identifying the issues to be resolved. At the last hearing, Judge Halliday cancelled the final hearing is set for February 2023 because she was not satisfied that the case will be ready and that looks likely to be the case for the re-scheduled September 2023 hearing. Ms Clayton said that because of the claimant’s behaviour we are in exactly the same position that we were in November 2022. There had been 2 preliminary hearings without having adequate particulars of claim and the respondent raise concerns in respect of the costs of dealing with this matter and the effects of delay.[35]Ms Clayton said that her application to strike out is being given greater force by the claimant’s behaviours at this hearing. Her departure was symptomatic of her disruptive approach. She refused to engage with matters she did not agree with. Ms Clayton said that the respondent had made it application to strike out the claim under 2 different but interdependent heads – rule 37(1)(c) and rule 37(1)(b) of Schedule 1 The Employment Tribunals Rules of Procedure of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules of Procedure”).[36]It is worth restating the overriding objective contained within rule 2: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[37]Rule 37 provides: (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)… (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 these Rules or with an order of the Tribunal; (d) … (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).[38]“Scandalous” means irrelevant and abusive of the other side. it does not mean shocking: Bennett v Southwark London Borough Council 2002 ICR 881. “Vexatious” includes anything that is an abuse of process: see Attorney General v Barker 2000 1 FLR 759 QBD (Civ Div). Furthermore, a party may also find that her claim struck out on these grounds if she has conducted her case in an “unreasonable” manner. For a Tribunal to strike out for unreasonable conduct, it has to be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; in either case the striking out must be a proportionate response: Blockbuster Entertainment Limited v James 2006 IRLR 630 CA.[39]In considering whether a claim should be struck out on the grounds of scandalous, unreasonable or vexatious conduct, a Tribunal must take into account whether a fair trial is still possible: De Keyser Limited v Wilson 2001 IRLR 324 EAT.[40]Applying Bolch v Chipman 2004 IRLR 140 EAT before making any strike out order under rule 37(1)(b), I must: 1. Find that the claimant has behaved scandalously, unreasonably or vexatiously when conducting the proceedings. If I make such a finding, then 2. I must consider if a fair trial is possible, as a strike out should not be regarded merely as a punishment (save as in exceptional circumstances). Even if a fair trial is unachievable, 3. I should consider the appropriate remedy in the circumstances as it might be appropriate to impose a lesser penalty, e.g. by making a costs order rather than striking out the claim.[41]This approach was reinforced by Laing O’Rourke Group Services Ltd & Ors v Woolf & Anor EAT 0038/2005 where the Employment Appeal Tribunal said, “Courts should not be so outraged by what they see as unreasonable conduct as to punish the party in default in circumstances where other sanctions can be deployed and where a fair trial is still possible”. In this instance the defaulting party was the respondent and the EAT felt a more proportionate sanction could have been allowing the hearing to proceed without the evidence of the employer.[42]Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420 emphasised that the Tribunal has a broad discretion and should avoid adopting an over-analytical approach, for instance by dissecting the case in detail or attempting to compartmentalise the relevant conduct under separate headings such as "nature", "gravity" and "effect". The words of the rule should be followed, and the Tribunal should: … look at the whole picture of what happened in the case and to ask whether there has been 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.[43]The claimant’s behaviour at this hearing had, in my determination, reached the threshold of scandalous. Her near-constant allegations about the respondent and Ms Clayton’s supposed lack of integrity were abusive and insulting. I make allowances that a self-representing party might feel strongly about matters and may not be able to restrain themselves appropriately, but neither the respondent’s representative nor the hearing Judges should be on the receiving end of such attacks. So far as the respondent and the previous Judges were concerned, no evidence was proffered to support the allegations when asked, so I find these allegations wholly unwarranted. The claimant’s behaviour today was scandalous, vexatious and unreasonable.[44]However, I was more concerned with the claimant’s past behaviour. The respondent identified the relevant chronology as follows: - The claim was issued on 30 December 2020 [HB5]. - The claimant was first ordered to provide further particulars on 11 January 2021 [HB3]. - Because of non-compliance, on 5 March 2021 the respondent applied for an unless order [HB63]. - The claimant said that she had not received the original order [HB65] notwithstanding it was sent to her correct address. - On 11 May 2021 the Tribunal sent a copy of the original 11 January 2021 order together with instructions seeking a reply within 14 days [HB68]. - The respondent objected to the claimant’s request for an extension and again applied for an unless order on 9 June 2021 [HB75-76]. - On 18 June 2021 the claimant objected to the respondent’s application for an unless order and complaint that she had not had a response to her extension of time request [HB77]. - The Tribunal listed the case for a preliminary hearing on 28 August 2021 to deal with all outstanding issues [HB83]. That hearing took place on 15 December 2022 before Judge Lewis [HB92-111]. Judge Lewis spent some time attempting to clarify the issues and he asked various questions – see paragraph 8 and pages 94 to 98 of the hearing bundle. I regard Judge Lewis’s attempt to clarify the issues as being particularly helpful and very clear. The claimant was again required to provide the further information by 17 January 2022. - The claimant applied for a further extension on 17 January 2022 (the day the further particulars were order to be provided) [HB113-119]. The respondent again applied to strike out the claimant’s claim on 18 January 2022 because she had not complied with Judge Lewis’s order [HB112]. - On 8 February 2022 the respondent wrote to the Tribunal pursuing the further particulars again and raising the point that the claimant was unwilling to provide the information sought [HB121] and the claimant responded that day saying that she had complied with Judge Lewis’s order [see HB123], which she clearly had not. - Judge Lewis refused the respondent’s strikeout application on 7 March 2022 and gave extensive reasons for extending case management orders [HB140- 145]. - On 6 August 2022 the respondent noted that they still have not received the outstanding further particulars [HB188] and thereafter Judge George made her order in respect of ordering full details of any outstanding disclosure the claimant sought if that complaint about disclosure was to continue. On 5 September 2022 the claimant complained Judge George’s timescale was too short [HB192] but, to date, the claimant has still not replied to Judge George’s order.[45]According to the respondent, the claimant had no less than 7 clear opportunities to provide the further particulars sought (which I went through and clarified). Ms Clayton said that the claimant’s response to the various orders for further particulars was to criticise the respondent for not providing enough information or to make applications in respect of around disclosure, but what was clear was that the claimant demonstrated no intention in providing some or all of the further particulars ordered. Ms Clayton said that the claimant has made 5 complaints against the ACAS conciliators, she has criticised Employment Judges, Tribunal staff and raised numerous complaints about irrelevant matters in these proceedings. Ms Clayton said that this behaviour was deliberately disruptive and represents scandalous and abusive undermining behaviour. That behaviour and the claimant’s tendency to take offence at anything that does not go her way was illustrated in her rude, disruptive and reprehensible behaviour exhibited today. She said that the claimant was now virtually out of control. Huge amounts of costs and time had been wasted and the respondent still did not know the case it is supposed to defend nor how many witnesses it will need. Ms Clayton said that the case had gone far beyond the stage of issuing an unless order because both the claimant’s history of non-compliance with Tribunal’s directions and orders, her previous disruptive behaviour and her recalcitrant behaviour today all demonstrate the claimant will not comply with any order or direction she does not like.[46]I am satisfied that the claimant’s behaviour today was not an aberration. The claimant has displayed a systematic approach of deliberate refusal to provide essential information; there has been a clear history of no compliance with Tribunal orders as set out in paragraph 44 above and attempts at 3 preliminary hearings (including this hearing) by various judges to clarify the issues for determination and none have got to the bottom of this. This is a deliberate and persistent disregard of the required procedural steps.[47]The past is a good indicator to the future. I am not satisfied that a fair trial is possible because after 2 years of proceedings, despite numerous efforts the cases is no further forward. The re-scheduled final hearing was due in 7 months. The claimant’s history of non-compliance with orders is significant. Her disruption at today’s hearing and her walking out indicates to me that she has no intention of complying with any further order and it is pointless to make any alternative order as I have no confidence that she will comply with it. I considered orders short of striking out, but I cannot let this case proceed to a final hearing when there is no certainty as to the claims engaged. Under the circumstances striking out the claim is proportional.