Mr D Faulkner v Chestnut Inns Ltd: 3400909/2016
JUDGMENT
[1]This matter is adjourned on the claimant’s application for a postponement.[2]There will be a preliminary hearing before this Judge on 7 December 2017, at 10am at Bury St Edmunds Employment Tribunals, 1st Floor, Triton House, St Andrews Street North, BURY ST EDMUNDS, IP33 1TR.[3]The full merits hearing is adjourned to a further hearing before this tribunal on 14 – 23 March 2018 inclusive at Bury St Edmunds Employment Tribunals, 1st Floor, Triton House, St Andrews Street North, BURY ST EDMUNDS, IP33 1TR.REASONS
[1]This is a claim of Daniel Faulkner in which he brings complaints of disability discrimination and that his dismissal was automatically unfair for health and safety reasons contrary to s.100(1)(c) of the Employment Rights Act 1996.[2]This hearing was listed for 6 days and commenced on Wednesday 18 October 2017. It had been listed on 1 June 2017 when the matter was before Judge Warren for a Preliminary Hearing. Both counsel that appeared at this hearing were before Judge Warren on that occasion.[3]At that preliminary hearing Judge Warren made orders for the final preparations for trial including that the bundle be provided to the claimant by 1 September 2017, and witness statements exchanged on 5 September 2017.List of issues
[4]The file had been referred to this Judge prior to the hearing upon receipt of a letter from the respondent’s solicitors dated 6 October 2017 requesting specific disclosure. The Judge instructed a letter be sent to the parties that she was not prepared to deal with the application so close to the hearing but that the application could be renewed at the hearing. She drew to the parties’ attention that it was not apparent from the file whether the order of Judge Sigsworth made on 3 February 2017 that an agreed list of issues be finalised had ever been complied with and required that the parties lodge the agreed list of issues by 4pm on Friday 6 October 2017 (it appears that was a typo graphical error and that the Judge had intended the 13 October 2017). At the outset of this hearing the Judge had not seen a response to that email. It transpired that the representatives had filed an agreed list of issues which had not reached the tribunal file. This was again presented to the tribunal. Without prejudice material[5]The claimant’s counsel indicated that her instructing solicitor only received the trial bundle the previous Thursday before this hearing started. There had been additions to it since then. Counsel had received at 7.30pm the night before the hearing started further documents which she had not seen before. There were places in the bundle and in witness statements referring to a without prejudice conversation. Counsel had asked her instructing solicitors whether they had waived privilege or had heard that the respondent had, and her instructing solicitors had confirmed that they had not done so. Both parties she submitted know that at the appeal hearing there was a without prejudice conversation. She was not suggesting that the fact of those discussions be kept confidential, but as neither party had waived privilege any terms referred to in the discussion should be redacted. Ms Moss suggested that she and Mr Ashley work together to make the appropriate redactions.[6]On behalf of the respondent the application was opposed. It was submitted that the claimant dealt with this in his own witness statement. He gave evidence about the discussion. The matter is in the documents and had never been raised before as an issue. If the document in question is redacted then it would make the document virtually pointless. The claimant was happy to give evidence in his witness statement about this, and therefore has in effect waived privilege. Counsel referred to paragraphs 85 and 86 of the claimant’s witness statement (before it was amended).[7]The respondent submitted that there was more to this issue then whether or not there was a discussion, but it all went to credibility which is a major issue in this case. The claimant states in his witness statement:- “I disagree that I said I would accept the respondent’s offer.”[8]It was therefore submitted on behalf of the respondent that at best the documents recording the appeal meeting were mistaken or at worst dishonest and those planning to give evidence on behalf of the respondent in relation to those documents are going to be committing perjury. The claimant has put this in his witness statement, and the respondent’s representative should have the opportunity to deal with it in cross examination and the respondent’s witnesses should also have the opportunity to respond to the allegation.[9]It was submitted on behalf of the respondent that it would be farcical to keep the words in at the end of paragraph 86 where the claimant states that in relation to the letter of outcome following the appeal hearing the “I confirm that I did receive this amount from the respondent.”[10]The money that was offered was paid in any event. Whilst it may have begun as a confidential discussion it was paid.[11]On behalf of the claimant it was argued that this was money the claimant was owed by the respondent in any event. The claimant hasn’t waived his privilege, and the claimant sees no reason why the terms put forward should be before the tribunal. The tribunals conclusions on the without prejudice discussion[12]The tribunal was satisfied that as the claimant had mentioned the settlement discussions in paragraphs 85 and 86 of his un-amended statement and referred to the associated documents he had waived privilege. He also acknowledges that the monies offered were paid to him. It would make no sense for the tribunal not to see what the minutes say and to hear the parties’ evidence on this matter. It is particularly important in the context of this case as credibility is going to be such an important issue. The claimant’s witness statement[13]Ms Moss explained to the tribunal that she had a conversation with the claimant on the first morning of this hearing before coming into tribunal with regard to his witness statement and the dates of events before his employment started. Her instructions were that the witness statement was prepared in a rush on Monday, and therefore some of the dates in relation to what happened before the claimant’s employment are wrong. Although she would normally deal with this in chief, she wished to flag up the point at this stage. The claimant had given her a chronology which he says is right but is not what is stated in the witness statement. Ms Moss intended to go through the statement carefully with the claimant today and there may be amendments that the claimant needs to make to the statement.[14]The tribunal read the witness statements and related documents during the first day of this hearing. On the second day Ms Moss handed up on behalf of the claimant an amended witness statement. For the record this contained amendments to the following numbered paragraphs; 6, 11, 16, 26, 34, 36, 37, 44, 45, 54, 62, 63, 84, 88, 92, 93, 97, 98, 99 and 101. Mitigation documents[15]By email of 18 October 2017 sent at 2.18pm the respondent’s solicitor asked the claimant’s solicitor for disclosure in relation to remedy. She noted that this had still not been received and asked for it by the end of that day or at the latest 8am in the morning. She asked: - “Please ensure this disclosure includes (but is not limited to) all job applications and other mitigation efforts and all documents relating to revenue generated through his own enterprise.”[16]The tribunal saw an email response from Mr Watkins of the claimant’s solicitors at 3.52pm stating: - “I note that you have not requested this disclosure previously.” But would send what he could and would do his best to provide it within the 16-hour time frame.[17]There was further exchanges about the duty to disclose and then an email sent by Mr Watkins at 11.38pm on 18 October 2017 attaching:-17.1 The claimant’s job applications.17.2 Invoices showing income from work carried out since leaving Chestnut Inns.17.3 Recruitment website profile.17.4 Confirmation of contract gained.[18]The documents disclosed were numbered pages 437 to 504 and placed at the end of the tribunal bundle.[19]As a result of this disclosure the representatives needed to take instructions on the documents. It was agreed by the tribunal they would have time to do so, and for them to then provide copies to the tribunal of those documents the tribunal required.[20]The tribunal adjourned from 10.30am to 11.25am for instructions to be taken. There was then further discussion with the representatives when it was agreed that the tribunal would adjourn and have an early lunch, and the cross examination of the claimant would start at 1.30pm. Cross examination of the Claimant[21]The claimant was called to give evidence and confirmed the truth of his amended witness statement. Cross examination commenced at 1.52pm. Much of the cross examination was about the claimant’s work history prior to commencing with the respondent. He was in particular taken to paragraph 6 of his witness statement where he stated he worked “for an English restaurateur as general manager of his busy 180 capacity restaurant Oscar’s bar and grill in the Algarve”. It was confirmed in evidence by the claimant that was the first time that Oscar’s bar was mentioned. The claimant however stated that his solicitor was aware of it. Later the claimant stated he had produced pay slips for 2015 although they were not mentioned in his witness statement. His solicitor had them although they were not in the bundle.[22]The tribunal was then advised that on 16 October the respondent’s solicitors had asked the claimant’s solicitor for urgent details of “Oscar’s bar and grill” as set out in the claimant’s witness statement. The response was “the owner of Oscar’s and the wealthy Englishman referred to was Dave Austin. However he no longer owns the business as it was sold from underneath him.” The claimant stated he did not know that his solicitor had been asked for that information.[23]The claimant was then asked if he had been through the bundle of documents carefully, and he said that he had not. He had not read the opening note of the respondent’s counsel although his counsel stated that she had not given it to him. The claimant stated he had given his solicitor the contract of employment with Oscar’s and pay slips. It transpired the claimant had two pay slips with him which he produced to the tribunal. The claimant stated he had other pay slips at home in storage. He would bring the contract and pay slips the next day. There was a break whilst the pay slips were copied. In the break (although not able to speak to her client) Ms Moss took instructions from her instructing solicitor, and advised he did not remember the pay slips and the contract. He checked the file. He found in his file at the end of June the contract in Portuguese and pay slips but these had been saved to the file by a different colleague. They were clearly disclosable and should have been disclosed at that point. It was a clear error on the part of her instructing solicitor. She accepted she should also have appreciated the importance of these documents. They were sent to the tribunal by her instructing solicitor.[24]After this exchange the claimant was taken to his particulars of claim attached to his ET1. He stated that he did not recognise it and had not read it before. He was then taken to the ET3 and said that he had not seen that before. He had not seen his schedule of loss.[25]There was a break for the claimant to read on his own, these documents. They are quite lengthy. He was also asked to read Mr Ashley’s opening note. The tribunal broke at 3.19pm and the claimant advised the clerk he had read these documents at 3.34pm. In coming back to tribunal he confirmed he had read the documents.[26]The tribunal adjourned at 4.17pm on the second day. The tribunal had by then received emails from the claimant’s solicitor with copies of further pay slips and the contract of employment which had been copied to both counsel. The third day of the hearing[27]On the third day, the claimant asked the clerk if he could pass a note to the Judge. He was advised this was not appropriate and any note he had, had to handed up in open tribunal and read to the parties. This is indeed what occurred. The claimant’s note was as follows:- “I the claimant Mr Daniel Faulkner would kindly ask the Judge in my case for a postponement. I have only been in possession of major documents relating to my case for one day and more documents are being brought to my attention whilst under oath and cross examination. I generally feel very ill prepared to state my case against Chestnut Inns, and to answer further questions will be very difficult for me to answer without receiving further counsel from my solicitor and counsel at court. Page 254 and 255 are asking for my solicitor to produce evidence in a 1 hour time scale which is very difficult.”[28]The claimant was part way through giving his evidence and under normal circumstances Ms Moss would not have been permitted to speak with him. It was agreed in the circumstances that Ms Moss could talk to the claimant about whether or not there was now a conflict of interest between him and his solicitors. She would also speak to her instructing solicitor about the conflict issue.[29]The tribunal did not resume until 12.30pm when Ms Moss stated that she had spoken to various people and her solicitor’s were no longer able to act due to a conflict. As a result she was automatically dis-instructed and could no longer act.[30]It was agreed that as the claimant had not spoken to his solicitors there would be a three way conversation between him, Ms Moss and the solicitors in which the conflict position would be explained to him.[31]On returning after lunch at approximately 1.30pm the claimant confirmed he understood the problems that had arisen with regards to conflict, and the solicitors were no longer acting for him. He needed to obtain a new representative and would need to speak to his insurance company about funding. He asked for a postponement to enable him to instruct a new representative.[32]On behalf of the respondent it was submitted that it would not be possible at this hearing to resolve the question of how this position had arisen. It may be that it is no fault of the claimant but we do not know. Taking the claimant’s position at its highest he may have no fault attributable to him. His solicitors are not here to comment. Mr Ashley did not think he could oppose the application for a postponement but there could be costs consequences. He believed that the claimant was moving next week and asked that details of a new correspondence address be provided.[33]The claimant confirmed he is moving to Devon to rent another property but does not have a date yet. He will be renting; Pebbles, 11 Sandy Way, Croyde, North Devon, EX33 (he did not know the rest of the postcode). An order is made as set out below for him to provide further information.[34]After further discussion, it was agreed that the tribunal had no alternative but to agree to the claimant’s postponement application. A preliminary hearing has been listed before this Judge to discuss the progress and make further directions for trial.[35]A full merits hearing has been re-listed before this tribunal panel taking into account the dates to avoid for the tribunal and the parties.[36]The claimant must take all reasonable steps to obtain alternative advice and to discuss the situation with his insurance company funders. It was stressed to him that this is his claim being brought by him, and that there are often claims brought by litigants in person in the employment tribunal without legal representation. The preliminary hearing that has been listed will be an attended hearing as the Judge felt it highly unlikely that the matters for discussion would be suitable for a telephone discussion. If the claimant does not have legal representation by that date then he is perfectly at liberty to attend the preliminary hearing in person without a solicitor.List of issues
List of issues
[1]The history to this matter is set out in the Judgment and Reasons sent out on the adjournment of a full merits hearing which had been listed for 18-25 October 2017 and the preliminary hearing summary issued after the last hearing on 7 December 2017. Page 1 of 10[2]The employment tribunal has received no contact from the claimant following the postponement of the full merits hearing. He was ordered to provide the date of his house move and the new full postal address of the property he was moving to. He failed to comply with that order.[3]The claimant did not attend the preliminary hearing listed for 7 December 2017. That hearing had been listed in the presence of the parties when the full merits hearing was adjourned on 20 October 2017. Further orders were made on 7 December which were sent to the parties on 14 December 2017. These were as follows: -1.1 To provide his reasons for failing to attend the preliminary hearing listed for 7 December 2017.1.2 To advise his current address and provide documentary evidence that he resides there in view of his evidence given at the hearing in October 2017 that he was due to move to Devon.1.3 To confirm that he does intend to continue with these proceedings.1.4 Whether or not the claimant has obtained or is seeking alternative legal representation.[4]The claimant has not complied with any of those orders, either directly to the employment tribunal or to the respondent.[5]On 7 December 2017 and communicated to the claimant in the orders sent out after that hearing, a further preliminary hearing was listed for today’s date, 26 January 2018. The claimant was advised that if he did not attend on that occasion, consideration would be given to whether the claim should be struck out on the following grounds: - a) That the claim is scandalous or vexatious, or has no reasonable prospects of success. b) That the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous and unreasonable or vexatious. c) For non-compliance with any of these Rules or with an order of the tribunal. d) That it has not been actively pursued. e) That the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim. Page 2 of 10[6]The orders also provided that the respondent’s solicitor would provide details of the costs claimed by them for that hearing and this hearing today. Confirmation was given that a costs schedule was indeed sent to the claimant and no response was received to it.[7]Further, by order number 5, the claimant was told to advise the employment tribunal by no later than 20 January 2018 if he decided not to attend this preliminary hearing stating his reasons for not attending and provide any information and/or submissions he wished to have taken into account in relation to the issue of strike out and costs. He has not complied with that order either. The respondent’s application to strike out[8]The respondent submitted that the claim should be struck out and that all of the grounds in rule 37 of the Employment Tribunal Rules 2013 were satisfied in the circumstances of this case. The claimant was on notice of the application and had been invited to attend or provided written representations but had chosen not to do so.[9]When the hearing was adjourned on 20 October 2017 and in the summary that was sent to the parties thereafter, the claimant was left in no doubt as to what he needed to do, namely to seek alternative legal advice with regard to these proceedings. Even though his representative had no longer been able to act for him, his representative was still present when the hearing was adjourned. He was, in the view of the respondent, treated exceptionally leniently when the hearing came to a halt. The claimant then failed to comply with the orders made on that occasion or turn up at the preliminary hearing which had been listed for 7 December 2017.[10]The original claim should be taken into account. In the grounds of resistance, the respondent made it clear that it took an extremely strong defence of them. There could be no ambiguity in paragraph 2 of the grounds of resistance where the respondent stated: “The claimant’s contract of employment was founded upon a fraud. In summary, the claimant obtained his contract by a deception, namely representing to the respondent that he had five years’ recent experience as a general manager when in fact he did not; and deceiving the respondent in relation to his in fact being heavily involved with a drug rehabilitation centre for most of the same five year period.”[11]At the end of the response, the respondent had made its position very clear that it considered the claims to be: “vexatious, unreasonable, an abuse of process and had no reasonable prospects of success. They are intended and calculated to deceive the tribunal into accepting jurisdiction to entertain allegations which the claimant otherwise would not be able to litigate and to harass the respondent into settlement of what in reality are claims utterly devoid of all merit.” Page 3 of 10[12]The claimant was put on notice that the respondent would seek to recover the entirety of its legal costs.[13]Upon arrival at the full merits hearing, Counsel for the respondent had submitted a very strongly worded opening note. In that, he had reminded the tribunal and the claimant that the Respondent had pleaded from the outset, that it believed the claimant to be a serial fraudster. The claimant had induced the respondent to offer him a contract of employment through fraudulently misrepresenting his background and experience. He had claimed to have worked as a general manager of the Empire Steakhouse and Grill in Lisbon, Portugal from 2010 to 2015 when in fact this establishment never existed.[14]It was only in his witness statement served on the respondent on 17 October 2017 that the claimant finally addressed the suggestion that there was something wrong with his CV.[15]Counsel at this hearing reminded the tribunal of the various editions of the claimant’s witness statement. It was recorded in the reasons sent out to the parties on 28 October 2017 that the claimant had indicated through his Counsel that there were some dates wrong in his original served witness statement. The claimant was allowed to make amendments to the statement before giving his evidence. An amended version was handed up on the second day of the hearing and as noted in paragraph 14 of the reasons sent out, this contained amendments to no less than 20 paragraphs. They were substantive and not just amendments of dates.[16]The tribunal’s attention was drawn to paragraph 6 of the statement. In the original served version, it had stated as follows: “In the five years before I moved back to the UK to work for the respondent, I lived in Portugal with my Portuguese wife, Alex. During that time, I worked for an English restaurateur as general manager of his busy 180 capacity restaurant, Oscar’s Bar and Grill, in the Algarve.”[17]Again, in the original statement at paragraph 97, the claimant had accepted that there were inaccuracies in his CVs surrounding his place of work in Portugal. He stated: “I sometimes put that I worked at “Empire Bar and Grill” or “Buffalo Bar and Grill” and these were pseudonyms for my real place of work which was Oscar’s Bar and Grill in the Algarve – a restaurant owned by a wealthy Englishman. I have previously worked at a place called Buffalo Bar in London but in around 1994. The reason I used these alternative names was because, when you search against my name and Portugal, the blog by Robin Mast comes up straight away.”[18]The claimant then explained in what was paragraph 98 that he was advised by his South African lawyer not to mention what he was doing in Portugal: Page 4 of 10 “I was told this would affect my ability to find another job, because employers would find the blog and wouldn’t hire me. I was working at Oscar’s at the same time as running the counselling business because the restaurant work was seasonal and there were only about four months of trade. I was more of a consultant at Oscar’s than anything and I was there from 2010 to 2015 with around eight months spent in Mallorca. Again, I haven’t mentioned my time in Mallorca on mv CVs as this will link back to the blog when employers search for it online.”[19]In the amended witness statement provided on the second day of the full merits hearing, paragraph 6 setting out the history of the claimant’s time in Portugal had been amended to add: “For the two years prior to this, I lived in Northern Portugal from August 2008 with my ex-wife. I had a car accident in September 2008. I didn’t work for 18 months thereafter but studied for a counselling diploma. From 2011, I set up a rehabilitation centre with my new wife in the Algarve. At the end of 2013, we moved to Mallorca for about eight months. The business failed and we returned to Portugal in April 2014. During that time (April 2014 to December 2015) I worked for an English restaurateur as general manager of his busy 180 capacity restaurant, Oscar’s Bar and Grill in the Algarve.”[20]In the amended version at what became paragraph 96, the claimant added: “I didn’t really think this through at the time and didn’t think it was going to be important. My concern was that if my real place of work was mentioned, it would link to the blog by Robert Mast.”[21]In what had been paragraph 98, now paragraph 97, the claimant deleted the sentences about working at Oscar’s at the same time as running the counselling business and stated: “The correct dates for my employment in Portugal are set out in my paragraph 6 above. These dates are not correctly reflected in the CVs (pages 288-307) because I didn’t want to have to refer to my time at the rehabilitation centre due to the blog.”[22]The significance of the blog is that in paragraph 6 of the grounds of resistance, the respondent pleaded: “On 12 March 2016, an associate of the respondent discovered a blog which accused the claimant of fraud in relation to a drug rehabilitation clinic with which he had been involved, Hope House. The fraud was allegedly perpetrated during the time the claimant claimed to have been working at a restaurant in Lisbon, the Empire Steakhouse and Grill.” Page 5 of 10[23]In his witness statement, the claimant explained that he had been in rehabilitation for alcoholism in 2008. He stated at paragraph 9: “My experience instilled me with a desire to help others overcome addiction. So I decided to learn the “12 steps” programme that had so benefited me and to develop it into my own programme which I called “Pathways”. I set up Hope House, a drugs and alcohol rehabilitation centre, with my wife Alex in 2012 and taught my “pathways” programme to paying clients until 2014. Hope House was only operating for two years because an online blog created by someone called Robin Mast forced us to shut down.”[24]It was submitted on behalf of the respondent that even at the point of service of his first witness statement, the claimant’s account of his employment history was fundamentally untruthful. The claimant had given evidence that he had read the statement in a layby on his mobile phone. Even if that is accepted, the claimant, as a party to the proceedings, must accept some responsibility for the contents of the statement and for ensuring it provided accurate information.[25]Counsel accepted that he had not got far in cross-examining the claimant about his differing CVs before the proceedings were brought to a halt. However, he did remind the tribunal of aspects of the CVs that were put to the claimant. The CVs had been disclosed in support of the claimant’s mitigation evidence.[26]The first version of the claimant’s CV appeared at page 298 of the bundle. This stated the claimant had worked at the Buffalo Bar and Grill from 2011 to 2015 which is now known not to be correct. When this was put to the claimant, he stated that he had been trying to fill a gap in his employment history but accepted the proposition put to him that this was a deliberate misrepresentation of his employment history.[27]In another version seen at page 291 of the bundle, he was stated to have worked at the Buffalo Bar and Grill from 2011 but this time to 2016.[28]In another version on page 294, the same dates were used and they were used again in another CV on page 302.[29]In another version seen on page 305, the claimant stated he was at Buffalo Bar and Grill from 2011 to 2015. This CV however the respondent submitted was significant as it refers to the claimant’s achievements whilst with the respondent. It claims that the Claimant planned the successful opening of the Northgate which the respondent submits he had not done. It also states he led a team of up to 130 people which again the respondent states is not correct.[30]The respondent submits that the significance of all of these CVs is that they have been created by the claimant post his leaving the respondent’s employment and after he had issued proceedings even knowing that the respondent’s defence to the proceedings was that he was a fraudster and had falsely represented his employment history. Page 6 of 10[31]A CV at page 288 was the one used by the claimant when he applied for the position at the respondent. This gave his last experience as 2010 to 2015 at the Empire Steakhouse and Grill, Lisbon.[32]The respondent submitted that there were therefore grounds under each of the subparagraphs of rule 37 upon which to strike out the claims. Relevant rules[33]Rule 37: “(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) that it is scandalous or vexatious or has no reasonable prospect of success;(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) that it has not been actively pursued;(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).” The tribunal’s conclusions on strikeout[34]The tribunal has concluded that the manner in which the claimant has conducted these proceedings entitles the tribunal to strike out the claims under each of the grounds in rule 37. (a) That it is scandalous or vexatious or has no reasonable prospects of success[35]The tribunal accepts the submissions made on behalf of the respondent that in a case which turned on witness credibility the claimant had no reasonable prospects of succeeding in this claim. All of the CVs provided by him were questionable and even his employment with the Respondent had been founded on inaccurate information provided by him. (b) That the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious[36]The tribunal is satisfied that that is indeed the case. To attend at a hearing with a witness statement that had been served but contained so many fundamental errors has to amount to unreasonable conduct. It was not just Page 7 of 10 dates that needed changing but whole sections of the statement. The claimant may have stopped to read the statement in a layby but it is still his responsibility to present accurate evidence to this tribunal. He was not doing so.[37]Whilst it will also be dealt with below, the claimant has since the adjournment of the full merits hearing failed to comply with any order made by the tribunal and that must also amount to unreasonable conduct. (c) For non-compliance with any of these Rules or with an order of the Tribunal[38]As stated, the claimant has not complied with any of the tribunal’s orders since the date of the adjourned full merits hearing. (d) That it has not been actively pursued[39]It must be assumed that that is the case from the claimant’s inaction in this matter. He was specifically ordered to indicate to the tribunal whether he was proceeding with the claim and he has failed to do so. He has taken no action in connection with it since the matter was adjourned on 20 October 2017. (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response[40]The tribunal has concluded that that is indeed the case in view of all of the actions of the claimant which have been set out above. Counsel referred the tribunal to the Court of Appeal decision in Arel Nominees Inc v Blackledge & Others [2000]. In that case, the court made it clear that: “A fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its processes to be abused so that the real point in issue becomes subordinated to investigation into the effect which the admitted fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself.”[41]The tribunal believes that the circumstances in this case although not involving a commercial dispute as in Arel Nominees are analogous. The claimant’s behaviour, his numerous and inaccurate CVs and his oral evidence all leave the tribunal to doubt whether it would be possible now to have a fair trial. That also requires the claimant’s engagement and he is not engaging in any way whatsoever with these proceedings.[42]It follows from those conclusions that all grounds in rule 37 are made out and the claims are dismissed. Page 8 of 10 The respondent’s costs application[43]Rule 76: “(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. (3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. (4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party. (5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing.”[44]On the last occasion, the tribunal made it clear that it would deal at this hearing with not only the respondent’s costs application for the last aborted preliminary hearing but also of this hearing. No application is yet presented with regard to the wasted costs of the full merits hearing. The tribunal is satisfied having found as it has that its jurisdiction to award costs has arisen and orders the claimant to pay £2,675.00 in respect of the respondent’s costs incurred. These are comprised as follows:- Page 9 of 10 7 December 2017 Counsel £650.00 Solicitor attending £675.00 This hearing Counsel £850.00 Solicitor attending £500.00 TOTAL: £2,675.00 No VAT has been applied as the respondent accepted this could be recovered by it.[45]The respondent will now consider whether to make application for its costs occasioned in dealing with and preparation for the October full merits hearing. The full merits hearing is now postponed but what would have been the last day, 23 March 2018, remains as a one day preliminary hearing at which Directions will be made as appropriate on any costs applications made by the respondent.[1]The claim for costs against Karen Moss of counsel is dismissed on withdrawal.[2]The claim for costs against Slater Gordon and the claimant Continues.