Mr E Ukwu v Ultra Electronics Holding plc: 3322493/2016
EMPLOYMENT TRIBUNALS
Case No 3322493/2016
Between
Mr E UkwuClaimantUltra Electronics Holding plcRespondent
Before
Employment Judge GeorgeNot represented for claimantMr Thomas Gillie (instructed by Counsel) for respondentDate 5 October 2017
JUDGMENT
[1]The Respondents’ applications for an order that the claim be struck out on the grounds of unreasonable conduct on the part of the claimant and/or for noncompliance with an order of the Tribunal and/or because it is no longer possible to have a fair hearing are dismissed.[2]The full merits hearing of this claim, due to be heard for 7 days commencing on 9 October 2017, is postponed. The hearing has been relisted to be heard at Watford Employment Tribunal, Radius House, 51 Clarendon Road, Watford, Hertfordshire WD17 1HU to start at 10am or so soon thereafter as possible on 20 to 24, 28 and 29 August 2018.[3]The parties are to write to the tribunal within seven days of the date on which the Order is sent to them to indicate whether they wish to apply for an earlier final hearing at other hearing venues in the region, namely Cambridge, Bury St Edmunds or Norwich.[4]The claimant’s application for the order for sequential witness statements to be varied so as to provide, instead, for mutual exchange of witness statements is dismissed. A separate order concerning the provision of the claimant’s witness statement accompanies this order. 1 ph judgment + cm Nov 2014 wip version[5]The claim has been listed for a telephone preliminary hearing before Employment Judge George on 10 November 2018 at 2 pm with a time estimate of 2 hours. At that hearing, the parties are to present suggestions as to how an agreed list of issues can be prepared in this case.[6]The respondents’ application for the claimant to pay the costs of and occasioned by the postponement of the final hearing from 9 October 2017 is adjourned to be determined at the final hearing of the claim unless an application to restore it is made before then.[7]Case management orders follow the reasons for these decisions.
REASONS
[1]There are number of applications before me today at this urgent preliminary hearing that was listed by me as a result of the following correspondence to the tribunal:a. The claimant’s letter of 30 August 2017;b. The letter from Clarion solicitors, on behalf of the Equiniti dated 7 September 2017;c. The letter from EEF dated 12 September 2017, andd. The email from the claimant dated 12 September 2017 timed at 17:31.[2]It is entirely regrettable that the written Order, setting out the orders which were made orally on 23 June 2017, was not sent to the parties until 18 August 2017 because of pressure of work at the tribunal. This does appear to have, in the words of Ms Warren, created the possibility for disagreement between the parties about what was expected of them in the interim even though they had their own notes of the orders and the claimant had been given dispensation to record the hearing in order that he need not take notes.[3]It was apparent from the above correspondence that case management orders which were designed to enable the respondents and the tribunal to have necessary particulars about the claims had not been complied with. They should have been complied with notwithstanding the fact that the parties had not yet received the written order. By the time the situation came to my attention, the trial bundle had been prepared but witness statements had not yet been disclosed and the final hearing was due to start in less than two weeks. The tenor of the correspondence made clear that the parties were not achieving the cooperation necessary to ensure that the claims are ready to be tried and it was unclear whether the trial would be able to proceed on 9 October 2017 as listed. Mindful that, were it to be postponed, a new hearing date was unlikely to be found in Watford Employment Tribunal under the Summer of 2018, I listed the claims for a preliminary hearing to seek to resolve outstanding issues and see whether it was possible for the trial to proceed. 2 ph judgment + cm Nov 2014 wip version[4]The Notice of Hearing was sent to the parties on 29 September 2017 together with the written reasons for certain case management orders which had been requested by the claimant on 30 August 2017. This notice indicated that the issues to be decided today werea. the claimant’s application that an Order for sequential exchange of witness statements, made by me on 23 June 2017, should be varied so as to provide for mutual exchange of witness statements;b. the claimant’s application for directions for him to prepare a chronology and cast list;c. the respondent’s application that the claim be struck out under Rule 37(1)(b) and or (c) of the Rules of Procedure;d. the respondent’s alternative application that the final hearing of the claim be postponed; ande. the claimant’s application for orders for specific discovery.[5]In the meantime, on 2 October 2017, the claimant made an application of his own to postpone the final hearing which is listed for 9 October 2017 for seven days on grounds of his ill health. At the same time he applied for today’s preliminary hearing to be postponed, also on the grounds of his ill health. He provided a medical certificate which is in the form of the proforma Statement of Fitness for Work for Social Security Purposes indicating that on 2 October 2017 a Dr Daly from St John’s Hill Surgery diagnosed him to be suffering from anxiety, depression, shoulder and arm pain. Dr Daly certified the claimant to be unfit for work and commented that he was unable to attend the employment tribunal “due to not being well enough due to the above issues”. The certificate certified that that would be the case for 21 days but that the doctor would not need to assess the claimant’s fitness for work again at the end of the period.[6]Prior to this application, the claimant had applied to postpone the preliminary hearing of 3 October on the basis that he had to attend work. This was refused. Unfortunately, the claimant’s contract to provide the services of a company secretary was then terminated and, on 2 October, he emailed the tribunal to say that he was now able to attend the preliminary hearing listed for 3 October. This was very quickly withdrawn and replaced with the application of 2 October 2017 for a postponement both of the full merits hearing and of the preliminary hearing on grounds of ill health.[7]REJ Byrne determined the application to postpone the preliminary hearing of 3 October and rejected it. The claimant did not attend but wrote to express his disappointment and dissatisfaction with the decision to reject his application to postpone today’s hearing.[8]I first considered whether I should continue with the preliminary hearing in the claimant’s absence or postpone it because of it. I took into account the fit note provided by the claimant but also the emails which he sent on 2 October, the first of which stated that he was going to attend on 3 October. In my view, there is a great deal of difference between being too unwell to conduct your own representation during a 7 day full merits hearing against counsel when multiple 3 ph judgment + cm Nov 2014 wip version allegations of detriment on grounds of protected disclosures are to be determined and being too unwell to attend a preliminary hearing which was, essentially, listed to decide whether the trial could go ahead and how it should be case managed. In my view there was nothing in the fit note from Dr Daly, when set against the claimant’s own email indicating that he would be able to attend, which provided evidence that he was unable through ill health to be able to participate in the second type of hearing. The interests of justice were in favour of judicial intervention in the case management of the claims rather than in permitting further drift. Strike out application[9]I had available to me for the purposes of the preliminary hearing a 2 volume bundle of documents, a statement of Deborah Warren of Clarion solicitors, on behalf of the Equiniti Respondents but with whose observations the Ultra Respondents wished to be associated and written submissions on behalf of both Respondents by Mr Gillie.[10]In those written submissions, Mr Gillie set out in detail arguments which I shall paraphrase here but which I took into account in full. He referred to a number of authorities specifically on the question of the right to a fair trial pointing out that, both in the law of the European Convention on Human Rights and under domestic law a fair trial incorporates concepts such as avoiding delay, equality of arms between the parties, an adversarial trial where both parties had knowledge of and the opportunity to comment on the observations filed and evidence adduced by the other. I note, in particular, the comments of Mr Justice Langstaff in Chandok v Tirkey UKEAT/0190/14 at paragraph 18; “In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues.”[11]These comments seem to me to be particularly applicable to this case in a way to which I shall return later.[12]It is argued on behalf of the Respondents that I should strike out the claims first, because it is no longer possible to have a fair hearing and secondly because the manner in which the proceedings have been conducted by the claimant mean that it is appropriate to exercise the powers under Rule 37(b) or (c) of the Employment Tribunals Rules of Procedure 2013. The points made in respect of these two lines of argument overlapped to some extent.[13]The Respondents’ argument is that 2 years have passed since the incidents, 19 months since the claim was launched and the Respondents still do not know the claim that they have to meet in sufficient detail to enable them to prepare 4 ph judgment + cm Nov 2014 wip version their evidence in response. Mr Gillie pointed out that the claimant is a qualified lawyer who states that he is a member of the Nigerian Bar and should therefore be fully aware of the framework of procedural rules surrounding litigation. It was argued that, although a litigant in person, the claimant has experience and skills which litigants in person typically lack. The Respondents are prejudiced by having to defend a vague claim which, after 2 years, they are no closer to understanding than they were at the beginning. Individuals are included as respondents and it was, it was submitted, even more important where named individuals are facing individual liability that they should know the allegations against them. The reason, it was said on behalf of the Respondents, that it was not possible to have a fair trial was that the employment tribunal had already used such weapons as were available to it in the form of unless orders and deposit orders and they had not worked. Mr Gillie took me to correspondence which he said indicated that the claimant had explicitly set out that he does not agree with case management orders made and would be appealing them. He had, argued Mr Gillie, made clear his intention to ignore the tribunal’s case management orders.[14]I do have concerns about the way that this litigation is heading and about a number of matters that impinge on whether a fair trial is possible. The first is the length of time that has elapsed since the incidents in question. We are already two years on from the fairly short period of the claimant’s contract and memories do fade with time. Secondly I am told, and am not surprised to hear, that a number of the employees who are witnesses to the relevant events have left the respondents’ employment and this inevitably makes it more difficult for them to obtain evidence from them and for the necessary preparatory work to be done. On the other hand, I am not given any specific evidence that particular individuals can no longer be traced and this argument is little more than the general observation that, after two years, it is likely to be harder for the individuals concerned to recall events.[15]The most significant matter is that there have been three preliminary hearings in this case where the tribunal has made attempts to encourage the claimant to focus his mind on the core strength of his claim and to explain how it is put forward so that the respondents should be able to understand the case that they have to meet. I accept that this is necessary so that the parties are on equal footing. These attempts by the tribunal have, regrettably, not yet been successful.[16]To take an example that I referred to during the course of this hearing, detriment no. 24 is an allegation that on 11 September 2015 there was ongoing spreading of malicious falsehoods regarding the claimant’s purported unsatisfactory performance and conduct. That allegation is made against 12 individuals and despite it being dated 11 September it is said to be ongoing. That is not sufficient for the respondents to know how to approach the individuals concerned to seek their instructions and their account of what they did. 5 ph judgment + cm Nov 2014 wip version[17]Not only that, but an employment judge faced with deciding whether that allegation of detriment is made out against one or more of those 12 individuals would have the greatest of difficulty in doing so. He or she would not know what it is alleged was said by whom and why it was said to be on grounds of a protected disclosure.[18]I take into account that it is sometimes the case that, in the context of the case as a whole, an allegation which at first sight appears difficult to understand is in fact less so. However, this is an example of the phrasing of an allegation which caused me to accept the Respondents’ submissions at the preliminary hearing in June 2017 that the claim was insufficiently clear for them to know the case against all of the individuals who are being sued.[19]I am conscious that whistle blowing cases frequently involve strong emotions. As in the case of allegations of discrimination, it is important that individuals who consider themselves to have suffered a detriment, sometimes of a kind which adversely affects their career prospects for years, have a full and fair opportunity to bring their claim to an impartial tribunal and obtain redress. There is a public interest in such claims being heard and I should not lightly strike out allegations, particularly where a fair trial is still possible.[20]I am also mindful that the circumstances of the delay on the part of the employment tribunal in sending out the written order made on 23 June 2017 contributed to the potential for dispute. My assessment is that essentially, for good and for bad, matters are no further on than they were in June 2017 when the matter was last before me (with the exception of the trial bundle having been prepared), but essentially it is as possible as it was at that stage for there to be a fair trial. Furthermore, the claimant has complied with two unless orders which have been made so far: one in relation to disclosure and one in relation to further and better particulars. This suggests to me that this is a sanction available to me to which the claimant does respond.[21]This brings me on to arguments based upon the claimant’s conduct. I have taken into account Ms Warren’s statement and the various documents that I have been taken to that concern the way in which the proceedings have been conducted.[22]It is fair to say that there has been lengthy correspondence from all parties to the tribunal and between each other. This is not the best way for parties to obtain the best out of the tribunal. Shorter letters which make the most important points and which ask for orders which the employment tribunal can make are more likely to be responded to quickly than those which make lengthy complaints about the other parties’ conduct. Furthermore, where one party has made an application, a quick but focused response from the other parties avoids the delay of the tribunal waiting for comments before actioning a particular request. These are general points I make about the correspondence from all parties. 6 ph judgment + cm Nov 2014 wip version[23]However, having read the correspondence myself I am driven to say that, the claimant’s correspondence shows a tendency for him to indulge in heights of oratory which can fairly be described as inflammatory. He has made some serious accusations about the conduct of those representing the Respondents which he does not follow up with evidence. He is saying that his fellow professionals have deliberately misled and lied to the employment tribunal when what it appears they have actually done is merely put their respective parties’ cases, those being cases with which he does not agree.[24]One particular exchange of correspondence that drew my eye was a letter from Ms Warren of Clarion Solicitors to the other parties, written on 24 August 2017. She had identified the risks to the trial date by the delay that had regrettably occurred with the tribunal sending its order out and the consequent noncompliance with case management orders, in particular by the claimant, and she wrote to the parties suggesting an alternative timetable. Quite properly, she did not copy this to tribunal, presumably hoping that their common interest in getting the claims to the point of trial would cause the other parties to view her suggestion as, in the main, constructive.[25]The claimant rebuffed that suggestion expressing his surprise that she thought it appropriate for him to comply with an Order that had not been sent to him and for which reasons had not been provided. He had, in point of fact, received the Order by that stage but said that he had not yet opened it because he only actioned his post once a week. Had he opened the order before responding then he would have realised that her alternative timetable was a practical suggestion to try to get things back on track.[26]It is important that, moving forward, all parties, focus on what the claims are and preparations for trial because that is what the employment tribunal will focus on. It is not appropriate at this stage for any party to rake over every step in the conduct of the litigation. To do so risks hampering the prompt preparation of the case for trial and is unnecessarily costly. Again, while I direct that comment at both parties, unfortunately, based upon the correspondence I have seen, it appears that the claimant tends to focus on fighting the interlocutory steps in the proceedings and he thereby risks losing sight of the main objective which is a trial of his claims which is fair to both parties.[27]Having said that, the strike-out power is not to be exercised as a punitive measure and I do not conclude that the claimant has been acting from any improper motive. I therefore do not think that matters have reached the point where it is appropriate to strike out for the way in which the proceedings have been conducted. My conclusion is that the balance of prejudice is clearly in favour of refusing the application to strike out at this stage. However, I remind the claimant of the comments which I made in paragraph 4 of my reasons sent out to the parties on 18 August 2017.[28]There is a necessary element of co-operation that seems to have been lacking so far in this case. This co-operation is not assisted by the claimant alleging the 7 ph judgment + cm Nov 2014 wip version respondents of wilful and deliberate attempts to mislead the tribunal but neither is it assisted by repeat applications to strike out the claim. The claimant’s response to Ms Warren’s letter of 24 August 2017 is an example of the hostility shown by the claimant to a sensible suggestion that has made it difficult for the parties to progress preparation without the intervention of the tribunal. Postponement[29]Regrettably the hearing will have to be postponed. There are two reasons why I reach that view. First, the claimant has produced medical evidence that he is unfit to conduct his own representation for the next three weeks. The claimant’s correspondence suggests that part of the causes of his anxiety are the fact of these proceedings and it is always a matter of judgment as to whether it is better for proceedings to go ahead and that source of anxiety to be removed or for the party to have the opportunity to be fit enough to represent themselves and in this case I think that the balance comes down on the side of the latter.[30]However, in any event the parties were not ready for hearing. There had not been compliance with the Orders for witness statements that had been made on 23 June 2017. These should have been complied with even though no written order had been sent out by the tribunal. I do not repeat what I have already said about the correspondence in the interim.[31]The final hearing in this matter is to be re-listed on 20-24, 28 & 29 August 2018. The parties are to write in to the tribunal within seven days of the date on which the Order is sent to them to indicate whether they wish to apply for an earlier final hearing at the other hearing venues, namely Cambridge, Bury St Edmunds or Norwich. The claimant’s application to vary the order for sequential witness statements/respondents’ application for an unless order[32]The claimant has applied to vary the Order that I made on 23 June 2017 for sequential exchange of witness statements. I sent out written reasons for the making of that Order. They were sent on 29 September 2017 although they do not bear that date. The reasons for which I made the Order in the first place seem to me to still apply. I do not see that anything has changed in the meantime that means that I should vary that Order. I give an example of why I am persuaded that the claims are still not sufficiently clear in paragraph 16 above.[33]There have already been three different documents which provide further and better particulars. Sequential witness statements would require the claimant to set out the facts upon which he relies as against every individual who is said to have subjected him to a detriment and then it would be possible for the respondents to respond to it. In the alternative I considered whether I should view the claimant’s application as an application to reconsider the Order that I made but for the same reasons I do not think that that application has any reasonable prospects of success. 8 ph judgment + cm Nov 2014 wip version[34]In reaching that conclusion, I do take into account the written submissions made by the claimant to the effect that he would be at a substantial disadvantage if he is required to set out his evidence before the respondents do so. He asserts, if I understand his point correctly, that because the respondents have taken a joint position in their response to his claim it can be inferred that they will collude in the preparation of their witness statements. This is not a reasonable inference to make. Furthermore, as explained in the passage from Chandok v Tirkey which I cited at paragraph 10 above, even in our adversarial system, fairness means that each party should know the case they have to meet. In my judgment, sequential witness statements are, in the circumstances of this case, a more practical way to achieve that than a further order for particularisation.[35]One risk of particularisation is that the party who gives the particulars seeks by doing so to expand rather than particularise their claim. An example is where the claimant in this case gave particulars (in response to the unless order sent out on 29 September 2017) which specified that he wished to make allegations against more individuals than were mentioned in his original schedule of detriments. This is not the purpose of particularisation and nor is it the purpose of witness statements. The claimant’s complaints are already found in a variety of sources (see paragraph 5 of the order sent to the parties on 18 August 2017). This will make it difficult for the employment judge conducting the final hearing to identify and decide the issues. For that reason, at the telephone preliminary hearing which I direct should happen in just over four weeks’ time, the parties are to present suggestions as to how an agreed list of issues can be prepared in this case.[36]The respondents ask that an unless order is made, requiring the claimant to serve his witness statement within 7 days. I agree that it is appropriate to order the claimant to comply with paragraph 5 of the order sent out to the parties on 18 August 2017 and to attach an Unless Order to that part of the order. Full reasons for making the Unless Order are contained with the separate order which accompanies this one. Taking into account the medical evidence provided by the claimant, I have concluded that he should have four weeks from the date on which this order is sent out in which to complete his statement.[37]The case will then be listed for telephone preliminary hearing before me on 10 November 2017 at 2pm with a time estimate of two hours in order that progress towards trial readiness can be assessed and further case management orders made, including for the respondents’ witness statements. Applications for discovery[38]In relation to the claimant’s application for discovery made on 12 September 2017, no order is made on this application at present. The respondents have indicated that to the extent that relevant documents falling within the ten categories listed by the claimant exist and are in their control, they have disclosed them and that they will disclose any further relevant documents that 9 ph judgment + cm Nov 2014 wip version come to their attention as they do so in compliance with their ongoing obligation to disclose relevant documents.[39]I therefore make no order upon the claimant’s application. If the claimant wishes to make an application for specific disclosure, he needs to set out with particularity the identity of the document that he wishes to have disclosed, why it is relevant and why he believes it to be in the control of the first or second respondents. Any applications for specific disclosure by any of the parties should be made within 14 days of the date on which this Order is sent to them so that consideration can be given to whether it is practicable for them to be determined at the telephone preliminary hearing currently listed for 10 November 2017 within its present time estimate. Costs[40]The respondents have made applications for the claimants to pay their costs. The Equinity respondents are limiting their application to the costs of attending this preliminary hearing, namely the solicitor’s cost of liaising with the employment tribunal and their clients for this hearing and counsel’s fees for today. The Ultra respondents are a membership organisation. They are applying for the counsel’s costs of attending today and also the brief fee incurred in relation to next week’s final hearing which has now been postponed.[41]The application is made alternatively on the basis of rule 76(1) and/or (2) of the Employment Tribunals Rules of Procedure 2013: namely unreasonable conduct and where a hearing has been postponed.[42]I am conscious that Rule 77 says that the party against whom a costs order is sought, which is the claimant in this instance, must have had a reasonable opportunity to respond to the application. The second respondents warned the claimant on 2 October 2017 that they would be making an application for costs if the trial was to be postponed on the basis that the cause of it would be the claimant’s failure to comply with the order to serve his witness statement. The first respondents warned the claimant on 25 August 2017 that if there was any further delay in the proceedings beyond that point, (namely once the written tribunal order had been received by the parties), their client would make an application to the tribunal for costs or for the claim to be struck out. The respondents made applications for the final hearing to postponed on the basis of insufficient time to prepare as a result of the claimant’s failure to serve his witness statement on 7 and 12 September 2017.[43]I consider first whether the claimant has been guilty of unreasonable conduct in relation to failing to comply with paragraph 5 of the Order made on 23 June 2017 but sent to the parties on 18 August 2017. On the one hand he was present in the tribunal. He heard the Order that was made and he had a recording of it from which to refresh his memory. He is legally qualified and should therefore be aware of the importance of complying with Orders in order to ensure that litigation is run smoothly. 10 ph judgment + cm Nov 2014 wip version[44]However, cutting through the heightened expression sometimes used in the claimant’s correspondence, his perspective appears to be that this was a case management order that he did not agree with and in respect of which he indicated his desire to appeal. He asked for written reasons but, unfortunately, also asked for a number of other orders. Whether it was for that reason or for some other reason I do not know but, despite the fact that I was the only person who could provide those reasons and the request was made in time, I was not informed of his request for written reasons until 26 September 2017. Those written reasons were provided on 29 September 2017.[45]It is not for me to make the claimant’s case for him. I bear in mind that he is not present and has filed with this tribunal medical evidence which he relies on as showing the reason why he is not present today. In those circumstances I am not satisfied that he has had a reasonable opportunity to respond to this application for costs. I therefore think it would be wrong for me to make a determination, in the absence of the claimant’s explanation, about whether he was guilty of unreasonable conduct at this time.[46]Nor, given the dual reasons for the postponement, do I find that there is a basis for making a Costs Order in relation to Rule 76(2) at this present time. I initially considered refusing the application for costs. However I have reconsidered that and have decided to adjourn the respondents’ application for the claimant to pay the costs of and occasioned by the postponement of the final hearing from 9 October 2017 to be determined at the final hearing unless an application to restore it is made before then. They have incurred costs because of the postponement and have made a case that the claimant should bear some of those costs which the claimant should have the opportunity to respond to before it is determined.[47]The claimant should understand that although the tribunal exercises its power to award costs sparingly it does have that power which can be exercised, including on grounds that a party has failed to comply with one of its orders. Parties have to understand that there are consequences of failing to comply with orders when the other parties to the litigation are inconvenienced and put to expense as a consequence.[48]I made the following case management orders by consent. Insofar as they are not made by consent, reasons were given at the time and are not now recorded. ORDERS Made pursuant to the Employment Tribunal Rules 2013[1]The claimant has leave to file and serve a cast list and neutral chronology setting out the dates of key events. These documents are 11 ph judgment + cm Nov 2014 wip version to be served on the other parties within four weeks of the date on which this order is sent to the parties.[2]Any applications for specific discovery to be made by any party to the claim should be made within 14 days of the date on which this order is sent to the parties and should identify the particular documents in respect of which an order for discovery is sought, why they are relevant to the issues and why they are believed to be in the control of the party against whom the order is sought. CONSEQUENCES OF NON-COMPLIANCE[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.[2]The tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.[1]The claimant applied by emails sent on 23 and 26 March 2018 for me to recuse myself from deciding the Equiniti respondents’ application for an order that he pay their costs of the proceedings. A costs application was made by the Equiniti and Ultra respondents at the preliminary hearing of 3 October 2017 but was adjourned and the Equiniti respondents applied to restore that application by a letter dated 19 January 2018. The costs which are sought by that application are: 1.1. Costs prior to 3 October 2017 of £3,604.80 which are said to have been incurred by reason of allegedly unreasonable conduct by the claimant in not complying with the tribunal orders and in the manner of his response to their correspondence; 1.2. Costs of and occasioned by the preliminary hearing of 3 October 2017 of £2,513.25; 1.3. £750.75 in relation to preparatory work following the 3 October 2017 preliminary hearing; 1.4. £834.35 said to have been incurred in relation to preparing for the 10 November 2017 hearing which was adjourned on the application of the claimant; 1.5. £969.15 said to have been incurred following the 10 November 2017 including in preparing the statement of costs.[2]The Ultra respondents have not applied to restore their costs application. I gave directions which were sent to the parties on 23 February 2018 for the management of the costs application which included orders for the claimant to respond to the application for costs and provide a schedule of income and outgoings. He has not complied with that order but has made an application for me to recuse myself from deciding the costs application on grounds of bias. Much of the email of 23 March 2018 makes plain that the claimant profoundly disagrees with a number of the decisions I have made in these proceedings. However he does not, in my judgment, allege actual bias. He alleges that I should recuse myself because of apparent bias.[3]In his email of 26 March 2018, he correctly identifies the seminal authority for apparent bias as being Porter v Magill [2002] 2 AC 357. He points out that the judiciary must ensure that it remains independent and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially (see email of 26 March 2018). He points to a phrase by which Ms Warren of Clarion Solicitors concluded her mail of 26 March 2018 (“If the Tribunal has any queries in respect of the above, please do not hesitate to contact us”). Contrary to the impression apparently received by the claimant, I read that as being mere courtesy in the context of an email in which the Equiniti respondents’ representatives ask whether the Tribunal would like their representations on the claimant’s application for me to recuse myself. The Tribunal has not and would not correspond with one party to the claim without copying the communication to the other parties.[4]A similar situation to the present arose in Ansar v Lloyds TSB Bank plc [2007] I.R.L.R. 211 CA. There, the Court of Appeal approved the following statement of the law by Burton J in the EAT, '1. The test to be applied as stated by Lord Hope in Porter v Magill [2002] 2 AC 357, at paragraph 103 and recited by Pill LJ in Lodwick v London Borough of Southwark at paragraph 18 in determining bias is: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. 2. If an objection of bias is then made, it will be the duty of the chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance: Locabail at paragraph 21. 3. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL (1986) 161 CLR 342 at 352, per Mason J, High Court of Australia recited in Locabail at paragraph 22. 4. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1991] VSCA 35 recited in Locabail at paragraph 24.[5]The EAT should test the employment tribunal's decision as to recusal and also consider the proceedings before the tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick, at paragraph 18.[6]The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection: Locabail at paragraph 25.[7]Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown: Pill LJ in Lodwick above, at paragraph 21, recited by Cox J in Breeze Benton Solicitors (A Partnership) v Weddell [2004] All ER (D) 225 (Jul) at paragraph 41.[8]Courts and tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment (or stay) cannot: Sedley LJ in Bennett at paragraph 19.[9]There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal employment tribunal hearings, of the dialogue which frequently takes place between the judge or tribunal and a party or representative. No doubt should be cast on the right of the tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simper & Co Ltd v Cooke [1986] IRLR 19 EAT at paragraph 17.[10]In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at paragraph 25.[11]Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail at paragraph 25) if:(a) there were personal friendship or animosity between the judge and any member of the public involved in the case; or(b) the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or,(c) in a case where the credibility of any individual were an issue to be decided by the judge, the judge had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or,(d) on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or,(e) for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues.” 5. In considering this application, in addition to the questions raised by the claimant, I have also had regard to subparagraphs (c) and (d) above: could be said that I had previously rejected the account of the claimant in any of my previous decisions or expressed views in such extreme or unbalanced terms as to throw doubt on my ability to try the issue of whether the claimant behaved unreasonably in his conduct of these proceedings and whether it is just and equitable to make a costs order against him. In Oni v NHS Leicester City [2013] I.R.L.R. 91, the EAT warned that the Tribunal, “should not express itself in a way which tends to demonstrate that it has already made up its mind, prior to hearing argument, not only on the issues it had to decide but also on issues which only fall for decision if an application for costs is made. If a tribunal does this, the fairminded and informed observer will conclude that there is a real possibility that the tribunal has pre-judged the question of costs.” (paragraph 32) I have considered whether, in my earlier decisions, I have expressed myself in a way which would cause the fair-minded and informed observer to conclude that there is a real possibility that I have pre-judged the question of costs. As the judgment in Oni makes clear, this does not preclude an employment judge or tribunal from expressing views as to the reasonableness or otherwise of a party’s conduct in order to explain the reasons for making a case management order (see [2013] I.R.L.R. 91 at paragraph 34). 6. The claimant sets out the reasons why he considers that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that I was biased in his email of 23 March 2018. The allegations made can be categorised as follows: 6.1. Refusal to accept medical evidence. In particular, the claimant alleges that the decision to hold the hearing of 3 October 2017 and make an unless order in the absence of the claimant when the claimant had provided what he regards as valid medical evidence excusing his attendance was biased and contrary to the evidence. Further the claimant alleges that he had provided evidence that he suffers from the serious medical condition of depression and my decision not to adjourn the hearing was in breach of the Tribunal’s obligation to make reasonable adjustments. It is said that I failed to take account of the claimant’s disability and that my comments about the medical evidence indicate that I am unable objectively and impartially to consider any submissions by the claimant for non-compliance with the unless order. 6.2. Failure in the written reasons for the order of 3 October 2017 to set out the relevant facts and law, take sufficient account of the points made by the claimant and reliance upon inaccurate, illogical and fallacious representations by the respondents; 6.3. Bias disclosed in the criticism of the claimant in the written reasons of 3 October 2017; it is suggested that I took offence at the claimant’s objections to the order for sequential exchange of witness statements; 6.4. Specious reasoning for blaming the claimant for a failure to comply with the order of 23 June 2017 which was due to the delay in the Tribunal sending out the orders and written record of hearing; 6.5. Difference in treatment between the claimant and the respondents although no particulars of that difference in treatment have been given; 6.6. Predetermination of whether to make an unless order at 3 October 2017 hearing; 6.7. Use of selective chronology in the judgment on the claimant’s application to reinstate the claim; 6.8. Unjustly criticising the claimant for failing to attend the hearing of 3 October 2017; 6.9. Misleading description of the claimant’s communication and unfairly maligning the claimant as the reasons for holding the hearing in his absence mean that I have compromised my impartiality and objectivity; 6.10. The claimant alleges that the unless order, judgment dismissing his claim and the initiation of cost proceedings against him are part of a concerted effort to silence the claimant and victimise him for making protected disclosures and to cover up the manner in which his claim has been dealt with. 7. Taking each of those points in turn (although there is some overlap) 7.1. Criticism of my actions on 3 October 2017 7.1.1. Refusal to accept medical evidence. The medical evidence before me on 3 October 2017 is described in paragraph 5 of my reasons for refusing the strike out application sent to the parties on 5 October 2017. The history of the postponement application is in paragraphs 6 & 7 from which it can be seen that I reasonably concluded that the claimant, although certified unfit for work and unable to attend the employment tribunal, must have, on 2 October, felt himself fit enough to attend for the preliminary hearing because he wrote to the Tribunal saying that he intended to do so before making an application for a postponement on grounds of the statement that he was unfit for work. Besides this, given that the consequences of the non-compliance with case management directions was the loss of the hearing date, it was in accordance with the overriding objective of avoiding delay and cost of proceedings with case management orders in the claimant’s absence in order to try to get the proceedings back on track (see paragraph 8 of my reasons). My view of the medical evidence was apparently shared by REJ Byrne who had refused an application for a postponement ahead of the hearing. I disagree that I refused to accept medical evidence. Rather, I did not consider that the medical evidence was sufficient reason to postpone the preliminary hearing when the consequence would have been disproportionate further delay to the litigation. I took into account the medical evidence when setting the time period within which the unless order needed to be complied. 7.1.2. (In effect) rejecting the claimant’s arguments and accepting the respondents’. On 3 October I refused the claimant’s application for a postponement on grounds of ill health and refused his application to vary the order for sequential exchange of witness statements. On the other hand, I refused the respondents’ application for an order striking out the claim. I also refused to make an immediate order that the claimant pay the respondents’ costs of and occasioned by the postponement of the final hearing. I did make an unless order in respect of the order for sequential witness statements set a period of 4 weeks for compliance rather than the 7 days sought by the respondents. I granted some of the relief sought by the respondent and refused other applications. I do not agree that I showed actual or apparent bias in the arguments which I accepted on rejected on 3 October 2017. 7.1.3. Taking offence at the claimant’s objections to the order for sequential witness statements. I note that, in paragraph 26 of the reasons, I do criticise the claimant for apparently focussing on fighting interlocutory steps in the proceedings and losing sight of the main objective which is a fair trial of the claims. However, this is in the context of my comment that both parties need to avoid raking over every prior step in the litigation. I did not take offence at the claimant’s objections and do not consider that a reasonable and fair minded observer would regard me as having done so, particularly in the context of criticism of all parties to the litigation and the risk that the case would become stale if impetus towards a final hearing was not maintain. There is also even-handed criticism of both parties in paragraph 28: of the claimant’s hostile correspondence and of the respondents repeated threats to strike out the claim. In my view, a reasonable and fair minded person with knowledge of the procedural history and correspondence in the case would not think that I was biased. I was critical of both parties in reaching my conclusion that the claims should not be struck out. 7.1.4. Blaming the claimant for a failure to comply which was caused by the Tribunal’s delay. It was clear from the correspondence between the parties that the claimant wished to wait for the written order from the tribunal before taking further steps. The respondents’ representatives were arguing that they should be complied with nonetheless. The administrative burden of work in the Tribunal, which followed the decision in late July 2017 in R (Unison) v The Lord Chancellor [2017] I.R.L.R. 911 UKSC and the consequent removal of the requirement for litigants to pay a fee before presenting their claim, meant that there was a significant delay in promulgating the written record of orders made on 23 June 2017. This was, clearly, not the fault of any of the parties in this case and I have previously apologised for it. However specific dates had been set for compliance with certain case management orders: I did not order compliance within a period of time after receipt of the written record of hearing but by specified dates. The fact that the written reminder of these dates had not been sent out by the Tribunal was simply not an adequate reason for non-compliance. It is normal practice that litigants should be bound by the case management orders which have been articulated in open tribunal in their presence, even if the written record of the hearing has not yet been promulgated. I do not think that a reasonable and fairminded person with knowledge of the circumstances, including that the claimant had recorded the hearing, would conclude that there was a real risk that I was biased against the claimant from the fact that I reached that conclusion. 7.1.5. Predetermination of whether an unless order should be made. I attached an unless order to paragraph 4 of the case management orders of 23 June 2017 and it was promulgated with] when the notice of hearing for the preliminary hearing for the 3 October 2017. The decision to make an unless order in relation to the claimant’s failure to comply with paragraph 5 of the case management directions of 23 June 2017 was made on 3 October 2017 and not before. 7.1.6. Unjust criticism of the claimant for failing to attend the hearing of 3 October 2017. I do not consider that I criticised the claimant for failing to attend the hearing of 3 October and the claimant does not point to specific words in either of the orders sent out following that hearing to support this allegation. Indeed, the consideration of the respondents’ costs application (paragraphs 40 to 45), shows that I declined to reach a conclusion about whether the claimant’s conduct was unreasonable in the absence of his explanations when he had put forward medical evidence which he relied upon to excuse his absence. 7.2. Selective chronology in the reasons for refusing to reinstate his claim. The claimant does not allege that there are particular steps in the chronology that I omitted to refer to in my judgment refusing to reinstate his claim which I should have taken into account. In the absence of a particular allegation I have reviewed the chronology and I consider that it is not lacking in objectivity. In particular, I did not seek to minimise the further administrative delays on the part of the Tribunal which meant that the parties did not receive the decision of EJ Smail refusing the claimant’s application for “relief from sanction” until after the date on which the claim was struck out. I reject this criticism. 7.3. Misleading description of the claimant’s communication and unfairly maligning the claimant. A fair reading of the claimant’s email of 23 March 2018 suggests that when he is critical of my interpretation of the medical evidence that is in relation to my decision to hold the hearing of 3 October 2017 in his absence. However, in the absence of a more specific allegation about which parts of my judgments suggest that I have misrepresented his communications or unfairly maligned him I have reconsidered whether my conclusion that the medical evidence did not excuse the claimant’s failure to produce his witness statement by 11 August (as originally ordered) or by 2 November (as directed by the unless order) shows evidence of apparent bias. I disagree that I disregarded the medical evidence. Paragraphs 14 to 26 of that judgment show that I engaged with the medical evidence and with the professed reasons for the failure to provide the witness statement. I do not think that the fair-minded and informed observer would conclude that there was a real possibility that my conclusion that the medical evidence did not excuse the failure to provide the witness statement showed bias on my part. 7.4. Concerted effort to silence the claimant through use of unless order, judgment dismissing his claim and initiation of costs proceedings. The import of this argument is that there is a conspiracy between the Tribunal and the respondents. There is absolutely no evidence to support this. Far from trying to silence the claimant the Tribunal’s efforts have been directed towards encouraging the claimant to explain his claim with particularity so that it could be understood and that there could be a fair hearing of it on the merits. 7.5. Would the reasonable and fair-minded person think that there was a real risk that I had prejudged the costs issue? In the reasons which I gave for making the unless order, I described the claimant as reacting with “unnecessary hostility” to the respondent’s attempts to get the hearing back on track and to indulging in inflammatory oratory in his correspondence. This was in the course of concluding that the claimant had avoided complying with the order for sequential exchange of witness statements. However, I expressly declined to make a judgment about whether the claimant’s conduct was unreasonable. I drew the claimant’s attention to the Tribunal’s power to award costs where there has been a failure to comply with one of its orders. When I re-read the judgment refusing the claimant’s application for the claim to be reinstated, there I go no further than to say that there was an element of wilfulness in the default (see paragraph 26). I do comment in paragraph 36 that the claimant is not entitled to unlimited patience if there are no reasonable grounds for his failure to comply with the Tribunal orders. That was in the context of needing to consider what the reason for his failure to comply with the unless order was. 8. This seems to me to be a situation similar to that in Ansar where I have in previous case management decisions made some comments which could be regarded as critical of the claimant. However those were in the context of decisions which I needed to make at the time on the issues then before me and I do not think that those comments disqualify me from further involvement in the case. I do not consider that I expressed myself in such extreme terms that a fairminded observer would think there was a real possibility that I had pre-judged the question of costs. I refuse the claimant’s application for me to recuse myself. 9. It would be of benefit to me, when deciding the costs application, to have the claimant’s response to it, both as to the principle of whether he should pay costs and as to the amount. I have decided, therefore, to extend time for his response to the costs application to 7 days after the date on which this order is sent to the parties. There is no requirement for further submissions from any other party. If there is no response to this order by the claimant, then I shall proceed to decide the costs application without further communication to the parties.