Mrs S Bi v Santander UK plc: 3400148/2017
REASONS
[1]On 5th May 2017, the full merits hearing listed on 31st May 2017 was converted to an open preliminary hearing to consider whether to strike out the claim; first, for failing to comply with the case management orders; second, for failing to comply with the early conciliation provisions; third, because the claim was submitted outside the statutory time limits. Notification of that conversion was sent to the parties on the same date by way of ‘Notice of Preliminary Hearing’. The claim form contains no ACAS conciliation number, and indicates that the reason for this is that the Respondent has already been in touch with ACAS.[2]However, since the listing of the preliminary hearing it has been discovered by the Respondent that the claim form is incorrect in this respect. The Claimant did comply with the early conciliation process and obtained a certificate. A copy of this was given to the Employment Judge. The Claimant made early conciliation notification of her claim on 15th December 2016 and received the early conciliation certificate on 15th January 2017. Her claim has therefore been presented correctly and in time.[3]The Claimant did not attend the preliminary hearing listed on 31st May 2017. The Tribunal administration tried to contact her on the telephone on the morning of the hearing to find out the reason for her absence, but there was no response from her. The Employment Judge was told by the Respondent’s counsel that the Respondent’s solicitors have spoken to the Claimant before today and she is aware of this hearing. The notice of hearing of 5th May 2017 is correctly addressed to her.[4]When the Claimant issued proceedings, the Employment Tribunal made the usual standard case management orders in writing and sent them to the parties on 16th February 2017. The Claimant has not complied with these orders. In breach of them, she has failed to provide a schedule of loss, to provide a list of disclosure of documents, or to send a witness statement to the Respondent. The Respondent was unable to prepare properly for the merits hearing, and such had to be postponed and was converted into today’s preliminary hearing.[5]The Respondent wrote to the Claimant on 24th April and 30th May 2017, and warned her in those letters that they would be seeking their costs of the preliminary hearing from her. Counsel for the Respondent made such an application at the Preliminary Hearing on 31st May 2017 under rules 74-78 of the Employment Tribunals Rules of Procedure 2013. The Respondent’s costs incurred amount to £1,545 – being the preparation time of the Respondent’s solicitors of £545, and counsel’s fee of £1,000.[6]Having regard to the above, the Tribunal’s decision is that:(1) The claim is struck out under rule 37(1)(b) & (d) of the Rules of Procedure. The Claimant’s conduct of the proceedings in failing to comply with case management orders or prepare in any way for a merits hearing is unreasonable and/or vexatious, and further it indicates an unwillingness actively to pursue her case.(2) The Claimant is ordered to pay the Respondent’s costs of preparation and attendance at today’s preliminary hearing, which have been made necessary by the Claimant’s said conduct.[1]There is no reasonable prospect of the original decision being varied or revoked, because:-(1) From the Claimant’s correspondence to the Tribunal of 13th June and 22nd June 2017, the Employment Judge understands that the Claimant asks the Tribunal to reconsider the Costs Order but not the decision to Strike Out her claim. The Employment Judge has also read the Respondent’s comments on the application.(2) The Reasons (paragraph 3) do not say that the Respondent spoke to the Claimant the day before the hearing. It is stated Case Number: 3400148/2017 that ‘before today’ the Respondent spoke to the Claimant and that she was aware of the hearing date. The Claimant does not state that she was not aware of the hearing. She clearly was. She did not seek a postponement of it. There is no application for a change of venue on the Tribunal file, on medical grounds or otherwise.(3) The Claimant does not dispute that the Respondent sent costs warning letters to her. She does not say that she sought to withdraw her claim ahead of the hearing of 31st May 2017, and the Respondent said that she did not. The Application contains an apology and an excuse on the basis of family bereavement, but with no details of when that was.(4) The Respondent asserts that the Claimant left a message, a voicemail for Mr Hamblin (of ACAS) on 10th May 2017, that she had received notification of the Preliminary Hearing date and that she did not wish to withdraw her claim as the Preliminary Hearing ‘was not going to cost her anything to attend’. It is also the case that the Tribunal notified the Claimant on 5th May 2017 that the merits hearing on 31st May 2017 had been converted to a Preliminary Hearing for which no fee was payable. If all that is so, then this indicates a cavalier attitude displayed by the Claimant to the Respondent’s position, that position being that it would cost them to attend the Preliminary Hearing.[2]In all the circumstances, therefore, the Claimant’s application for reconsideration of the Costs Order has no reasonable prospects of leading to the original decision being varied or revoked.