Mr A Collins v A Fulton Company Ltd: 3324215/2019
JUDGMENT
The claim is struck out.REASONS
[1]Reasons are provided by the tribunal of its own initiative in the interests of justice, as the claimant did not attend the hearing.[2]This was the listed final hearing of the claim. A relevant chronology is set out below.[3]The claimant was not present at the start time of 10am. At the Judge’s direction, a member of tribunal staff telephoned him twice on the mobile number shown on the ET1. The member of staff reported that there had been no answer on either occasion, and that he had left a voice mail.[4]We met the respondent’s counsel and solicitor at 10.10am and told them that we could see two possible courses. One would be to adjourn to 10am the following day, spend the day reading, and write to the claimant in terms to state that the hearing would proceed the following day, in his absence if need be, and that it would be open to the respondent on that occasion to apply for a strike out. An alternative would be to proceed to hear an application to strike out today.[5]Ms Kara of Clyde & Co confirmed that the email address on the tribunal system was the one which she continued to use, and no items sent to it had been bounced back.[6]Mr Selwood stated that he wished to apply at this hearing for strike out. We adjourned for about 20 minutes. Before resuming at 10.45, we asked the tribunal clerk to check again with the tribunal inbox to see if the claimant had perhaps emailed the tribunal. The claimant had not done so, and the tribunal agreed to hear the application for strike out.[7]Having heard the application, we adjourned briefly and gave judgment. We told the respondent that the tribunal would prepare reasons of its own initiative, but that there might be delay in their being sent due to insufficient typing resources. We therefore asked the solicitor to communicate to the claimant what the outcome had been, so that he would know as soon as possible.[8]The respondent did not apply for costs but indicated that a costs application might be made. In order to avoid delay and an administrative burden, we have therefore provisionally listed the costs application. The listing is provisional in the sense that if the respondent choses not to apply, it has agreed to notify the tribunal, and the date will be vacated. If however the application is made, the date given below is available to the respondent and this tribunal. Litigation history[9]It is necessary to say something of the history of the litigation. It arises out of about six weeks employment between late June and early August 2019. Day A was 14 September 2019 and Day B was 14 October. The claim was presented on Day B.[10]A first case management hearing took place by telephone before the present judge on 1 July 2020. The claimant took part, as did the respondent’s solicitor. The Judge listed the case at that hearing for 5 days starting on Monday 4 July 2022, ie 2 years and 3 days into the future.[11]A second case management hearing took place on 31 March 2021 before Employment Judge Hyams. The claimant took part, as did the respondent’s solicitor. Judge Hyams achieved a meticulous and detailed list of issues.[12]The primary claims were of discrimination on grounds of race and/or sexual orientation. The claimant alleged that no fewer than 13 colleagues had openly and repeatedly subjected him to abusive language on the far extreme of offensiveness. All these allegations were vigorously contested and denied.[13]On 9 November 2021 the claimant wrote to the respondent’s solicitor as follows: “Due to unforseen [sic] circumstances I will be dropping the claim against Fulton on all counts so far.”[14]Ms Cowburn of Clyde & Co replied the same morning to inform the claimant that any withdrawal must be made to the tribunal (plainly in accordance with Rule 51).[15]There then followed correspondence on whether the email of 9 November constituted withdrawal of the claim. In the course of that correspondence, the claimant wrote to the tribunal on 15 March 2022 as follows: “To whom it may concern, I only sent the correspondence to the respondent in relation to ending the case due to bad advise from close associates and have decided to continue with, what I think is a very important matter either by having a new hearing to decide it’s course or, to continue on up the 04/07/22 as originally discussed.”[16]Subsequently on 12 April the tribunal wrote to the parties on Employment Judge George’s direction: “The claimant has not withdrawn the claims. Are the parties ready for the hearing on 4 to 8 July 2022?”[17]The respondent replied on 12 April to confirm that it was ready. The tribunal file did not contain a response from the claimant.[18]On 6 June 2022, Ms Begum, Legal Officer, wrote to the parties to send them the pre-hearing check list. Her covering email wrote (bold font in original): “If you fail to [complete and return the Checklist] then an Employment Judge may consider striking out the claim or response on the ground that it is not actively pursued.”[19]The respondent returned the completed Checklist, the claimant did not.[20]On 17 June Clyde & Co applied for the claim to be struck out; by letter of 23 June the tribunal wrote that Employment Judge Foxwell had directed that “any application for strike out can be dealt with at the outset of the final hearing.”[21]The hearing was due to start on Monday 4 July. For reasons related to judicial resource the parties were informed the previous Friday, 1st July, that the hearing had been reduced to four days and would start on Tuesday 5 July.[22]The case was ready to start. There was a bundle of 278 pages. The claimant had submitted a witness statement. The respondent had submitted 13 statements, each from a person against whom a personal allegation of discrimination had been made.Discussion
[23]Rule 37 provides: “At any stage of the proceedings.. a tribunal may strike out all or part of the claim.,. on any of the following grounds –(b) that the manner in which the proceedings have been conducted .. has been scandalous, unreasonable or vexatious; (d) that it has not been actively pursued.”[24]Mr Selwood’s submission was concise. The material points are the following:-24.1 The claimant had at first engaged with the tribunal process by undergoing early conciliation, presenting a claim, and corresponding with the respondent and the tribunal, including taking part in two preliminary hearings;24.2 Since November 2021, when he had written that he wanted to drop the claims, his participation in the claim had fallen, although on 15 March 2022 he had stated that he wished to continue.24.3 His email of that date was significant. It confirmed that the claimant knew and understood the listing arrangements.24.4 He had since then failed to reply to the tribunal’s email question of 12 April and failed to complete the check list procedure.24.5 He had been told in the check list procedure, and again by letter of 23 June, that this hearing might consider strike out.24.6 The respondent and tribunal had used the correct lines of communication with the claimant.24.7 The claimant had not given the respondent or tribunal any reason or evidence on which to form the view that he wished to adjourn or was in any way unable to take part in this hearing.[25]Mr Selwood submitted that the alternative of adjourning to the following day should be avoided. Given the volume of paperwork, and the number of witnesses, the tribunal would struggle to conclude the case in four days, and it would be undesirable in principle to go part-heard. If the case were wholly adjourned, delays in the tribunal system might lead to a listing in 2024. Mr Selwood very fairly conceded that as all allegations were denied, this could not logically be said to affect recollection, but the prolongation of extreme and emotive allegations for a period of another 18 months would be burdensome, disproportionate and unfair.[26]The first question for us to consider is whether any of the grounds for strike out set out in Rule 37 have in fact been made out. We have no hesitation in finding that the claim has not been actively pursued. We note in particular that the claimant did not confirm his wish to proceed and did not complete the check list. He has been put on notice that this hearing would consider strikeout. He has failed to address the substance of the applications, or the underlying issue of proactive conduct of the proceedings.[27]We find that those facts also constitute unreasonable conduct of the litigation, in circumstances where the case is emotive, engages issues of principle for all concerned, raises allegations of extreme gravity, and has led to two detailed case management hearings.[28]We considered whether the interests of justice might be better or more appropriately served by adjourning, either to the following day or generally. In the absence of any communication from the claimant, we had no reason to do either. We had no explanation of his dis-engagement from the process, and no reason to believe that he would conduct the case differently in future. We therefore declined to do so.[29]Although it is implicit in what is said above, we find that the interests of justice do not favour potentially exposing the respondent to further legal costs or absorbing further judicial resource.[30]Mr Selwood made no application under rule 47. We add only as observation that if we had been asked to dismiss under that rule, we would have done so. Costs hearing[31]The costs hearing has been listed to take place at the Watford Tribunal, for 3 hours before the same Judge and Tribunal Members at 10am on Wednesday 16 November 2022.[32]The Judge has directed that if it decides to make the application, the respondent should set out in writing to the claimant the grounds on which it is making the application, and a schedule or summary of the sum of costs applied for and the basis of calculation. The information should be set out in a manner and sufficient detail for the claimant to understand the case which he has to meet.[33]It is recorded that in accordance with Rule 84 a party against whom a costs order is sought ma put before the tribunal information about their ability to pay. If the respondent makes the application, it must advise the claimant accordingly, and any information about his ability to pay should be sent by the claimant to the respondent and the tribunal no later than 9 November 2022.[34]The respondent is reminded that if it decides not to proceed with an application for costs, it should notify the tribunal and the claimant of its decision, so that the listing can be vacated.Discussion
[1]The claimant asked for these reasons after judgment had been given.[2]Following the Tribunal’s judgment of 5 July 2022, the respondent made a formal application for costs. The hearing had been listed in accordance with the Case Management Order made that day. Shortly before the hearing, and for administrative reasons, the hearing time was moved and the parties were asked to consent (which both did) to a remote hearing by video. The respondent sent the Tribunal by pdf a bundle of 192 pages, which included the claimant’s reply to the application.[3]The application was made under Rule 76 which provides that the Tribunal may make a Costs Order where it considers that “a party or that party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonably”. As directed by the Tribunal at the July hearing, the respondent had advised the claimant of his right to place before the Tribunal information about ability to pay.[4]In considering a costs application, the Tribunal should follow three stages. The first stage has been called the threshold stage and addresses the question of whether the test set out in Rule 76, which is quoted in part above, has been met.[5]The second question is whether it is in the interests of justice for any Costs Order to be made. The interests of justice involve a balancing exercise between the right of the claimant to access the Employment Tribunal for workplace justice, a right which must be balanced with the requirement to safeguard respondents from unmeritorious claims, and the duty of the Tribunal to ensure that its finite resources are well used. Although the rule does not refer to exceptionality, the Tribunal should bear in mind that costs in the Employment Tribunal do not follow the event in the ordinary course.[6]At the final stage the Tribunal must consider whether to make a fixed figure award or an award for costs to be assessed, and in either event, how the award should be expressed.[7]In its written application, the respondent had expressed the first stage by two routes. The first route was to submit that the entirety of the proceedings was vexatious. It explained this by stating that its case was, put baldly, that the claimant had maliciously fabricated the allegations in this case in anger in response to dismissal. The second route was the one set out in our judgment of July, ie that the claimant had conducted the case unreasonably by ceasing to engage with the tribunal process.[8]We told Mr Healey, at the start of the hearing, that we would not hear an application based on the first route, unless he could show cause to do so in introductory submissions. The Tribunal formed that view on reading papers for two broad reasons. The simplest reason was that it was not necessary for us to reach that conclusion, because in July we had found that the case had been conducted unreasonably. However, the primary reason was that we could not reach a conclusion that the claimant had brought these proceedings vexatiously without having heard evidence. It would not in our view be right to read the witness statements and bundle, and draw on that material alone to reach that conclusion. After a short adjournment, Mr Healey agreed to confine his submissions to the unreasonable conduct identified in the July judgment, which he expressed in short as follows.[9]His submission was that in November 2021 the claimant had written to the respondent to say that he wished to withdraw. As set out in our earlier judgment, he had been told that he had in fact to write to the Tribunal if he wanted to withdraw; he never did so. The following March, 2022, he said that he wished to proceed, but did nothing to progress his case. The work of last minute preparation was therefore wasted and could have been avoided if the claimant had withdrawn properly. Mr Healey’s application for costs was limited to costs of solicitors’ preparation incurred after 9 November 2021 and did not include an application for Counsel’s fees of attending on 5 July.[10]Mr Collins in reply was diffuse and unclear. He repeated that the claim had been properly brought, based on the conduct of the respondent. He used a phrase to the effect that the respondent “initiated proceedings against myself” and “the claim was pushed forward by the respondent”. When asked to clarify this form of words, the claimant referred to what he said was a failure by the respondent to engage with mediation or through ACAS.[11]The claimant said that he had been unwell at the time in question, and when asked about this, of which there was no medical evidence, agreed that he had not seen a doctor or taken medication at any of the relevant period, ie between November 2021 and July 2022. As we understood it, his reason was that he felt he had not been well looked after by a doctor or doctors in previous episodes of the same difficulty. He said that he had had support from family and friends, but that not all of those who had supported him had been reliable, with the result that he had been given bad advice to write the withdrawal email on 9 November.[12]When asked by the Judge why he had not attended the hearing in July, the claimant said that he had been unwell, and had had a lot on his plate at the time. He said that he was in a depression, but was not seeing a doctor.[13]When we consider the interests of justice in light of these submissions, we make a number of allowances for the claimant. We accept the claimant’s assertions that he sent the withdrawal email on advice which he later thought was bad advice; and we accept that when he wrote the email in March 2022 saying that he wished and intended to proceed, that genuinely reflected his intentions at the time. We accept that in July 2022 he was unwell but not receiving medical treatment, and we record our concern that that may have continued to be the position at this hearing.[14]While we have some sympathy with these points, we also find that the claimant’s failure either to complete a withdrawal or prepare as directed placed a burden of cost and work on the respondent, as well as a burden on the Tribunal’s system. It does not seem to us in the interests of justice that a party can simply neglect their own claim. We reject the claimant’s use of language to the effect that the claim was initiated or progressed by the respondent. A failure or decision not to engage in dispute resolution does not mean that the respondent is the party driving the claim. It was the claimant’s claim, and he was responsible for fighting and driving it.[15]The claimant’s actions led the respondent to incur the costs of defending the claim. At a time of exceptional burden on the public services, including the Employment Tribunal, the time allocated by Tribunal staff and judiciary to the claimant’s case could and should have been available to another member of the public, if the claimant were to proceed with his claim.[16]Drawing the above together, we find that a costs award is in the interests of justice in this case.[17]On ability to pay, the claimant had provided no documentation. He had written only that he is in receipt of Universal Credit and undertakes agency work. He repeated that that remained the position at this hearing. He said that his earnings from agency work were variable and could range between £240 and £1800 per month, and his Universal Credit was £1286. He said that he had no savings and pays rent of £846 per month. When asked what payments he could afford he said no more than £50 per month. (In giving judgment we explained that this Tribunal has no power to order instalment payments).[18]It seemed to us that our decision could not disregard the claimant’s ability to pay, although we understand that the rule does not require us to do so. As said above, we were concerned about the claimant’s health, and as is obvious, we met at a time of recession, and a cost of living crisis. We could not make any confident prediction about the claimant’s further earning power, we have therefore made an award which is objectively modest, and indeed about one thirtieth (ie under 4%) of the respondent’s total costs of defending these proceedings.