Mr R Lottrie v Network Rail Infrastructure Ltd: 3320860/2019
JUDGMENT
COVID-19 Statement on behalf of Sir Keith Lindblom, Senior President of Tribunals “This has been a remote hearing not objected to by the parties. The form of remote hearing was CVP. A face to face hearing was not held because it was not practicable and no-one requested the same.” The judgment of the tribunal is that:[1]The claimant’s claim is struck out.REASONS
[1]Notice of this hearing was sent out on 3 May 2021. It has been listed for a three day full merits hearing. The claimant has therefore had six month’s notice of it.[2]The CVP link was sent to the claimant by email on 8 November 2021.[3]At 10am, the scheduled start time for this hearing, the claimant was not in attendance. Accordingly, I adjourned to 10.45 for enquiries to be made of him.[4]The court clerk telephoned the claimant and the gist of what she was told is as follows: The claimant stated that he was “out and about”. That he had a difficult year, but he had been to the Old Bailey as his daughter’s partner had been a victim of crime, that his mother and grandmother had passed away and that he had childcare commitments. The claimant said he would see what he could do about joining the hearing via his mobile phone. Being “out and about” meant that he did not have access to a laptop. The claimant was told he could email in any representations he wanted to make.[5]At the resumption of this hearing the claimant did not attend by CVP and had not sent in an email.[6]In my judgment the claimant has provided no valid reason for his absence or that would require an adjournment in the interests of justice. The claimant’s compliance with tribunal orders[7]At a preliminary hearing heard on 4 May 2020, the parties were ordered to exchange witness statements by 22 January 2021. By agreement, that deadline was extended to 24 February 2021. At the time, the hearing was scheduled for 15-17 March 2021. That hearing was postponed due to the claimant suffering a bereavement.[8]As already recorded, this hearing was listed and notice given to the parties on 3 May 2021.[9]On 28 June 2021, the claimant’s representative confirmed to the tribunal and the respondent’s representatives that they were no longer instructed to act on behalf of the claimant. Therefore, the claimant was a litigant in person.[10]On 29 September 2021, the respondent’s instructing solicitors emailed the claimant to ask when he would be in a position to exchange witness statements. The claimant made no response.[11]On 8 October 2021, the respondent’s instructing solicitors sent a second email seeking to arrange for a date for exchange of witness statements. The respondent also requested documentation in relation to mitigation. The claimant did not respond to those emails.[12]On 13 October 2021, the respondent’s instructing solicitors sent a third email to the claimant requesting a response and asking him if he intended to proceed with his claim. On the same day the claimant responded that he did intend to proceed with the claim. The claimant said he would get back to the respondent by 18 October 2021 but did not.[13]On 20 October 2021, the respondent’s instructing solicitors made an application for a strike out order and/or unless order. Regional Employment Judge Foxwell directed that that application would be heard at the start of this full merits hearing.[14]On 21 October 2021, the respondent’s instructing solicitor sent the bundle to the claimant and received a confirmation that it had been downloaded and the single comment from the claimant “I hope this is right the bundle pack”.[15]In breach of the tribunal order, the claimant has not served a witness statement. Strike out[16]In my judgment, in failing to attend this hearing or apply in advance for an adjournment with an explanation as to why he could not attend or provide and explanation today why he could not attend and in failing to serve a witness statement, the manner in which the claimant has conducted these proceedings has been unreasonable. Accordingly, pursuant to Rule 37(1)(b) o0f the Employment Tribunal’s (Constitution & Rules of Procedure) Regulations 2013, I strike out the whole of the claimant’s claim.[17]Further, in failing to serve a witness statement, the claimant has failed to comply with an important order of the tribunal and accordingly, I strike out the whole of the claimant’s claim pursuant to Rule 37(1)(c) of the Employment Tribunal’s (Constitution & Rules of Procedure) Regulations[18]Further, the claimant has failed to attend at this hearing and I dismiss the claim pursuant to Rule 47 of the Employment Tribunal’s (Constitution & Rules of Procedure) Regulations 2013. Reconsideration[19]Pursuant to Rule 71, Employment Tribunal’s (Constitution & Rules of Procedure) Regulations 2013, the claimant may apply for reconsideration of this judgment. Such an application must be made in writing within 14 days of the date on which this judgement was sent to him. If the claimant makes such an application he needs to set out why reconsideration of the original decision is necessary. Any such application should be accompanied by a statement from the claimant explaining why he has not exchanged a witness statement with the respondent and why he was not in attendance at this hearing.[1]Employment Judge Alliott has considered the claimant’s email timed and dated at 16:28 on 19 December 2021. It is noted that the respondent has not been copied in but Employment Judge Alliott has nevertheless decided to deal with it without input from the respondent.[2]Any appeal against the judgment has to be made to the Employment Appeal Tribunal.[3]Employment Judge Alliott has treated this email as an application for re-consideration.[4]The application for reconsideration was received more than 14 days after the date on which the decision was sent to the parties. However, Employment Judge Alliott has decided that it is in the interests of justice to extend time.[5]It is noted that unfortunately the claimant had bereavements in January and February 2021, had childcare commitments from August 2020 and attended a criminal trial to support his daughter in September 2021. However, the claimant has not explained why he has not exchanged a witness statement and why he was not in attendance on 9 November 2021. Employment Judge Alliott notes that the judgment sets out that the claimant needs to explain why he has not exchanged a witness statement and why he did not attend the hearing on 9 November 2021. He has not done this in any detail.[6]It remains the judgment of Employment Judge Alliott that the manner in which the claimant has conducted the proceedings has been unreasonable, that the claimant remains in default of an order of the Tribunal and no good reason has been given for his failure to attend the hearing.