Mr B Duffy v Scotsman Group plc and others: 8000057/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000057/2023

Venue Chambers in Glasgow

Hearing 13 July 2023

Between

Mr B DuffyClaimant

Scotsman Group plcRespondent

Before

Employment Judge D Hoey

Date 9 May 2024

JUDGMENT

The claimant’s application for strike out of the response is refused and the case shall proceed to the final hearing fixed with a 3 hour in person case management preliminary hearing to be fixed to deal with case management and how the parties will work together to ensure the hearing can progress in line with the overriding objective.

REASONS

[1]The claimant lodged a claim on 7 February 2023. The claim ran to 187 paragraphs on 29 pages and was in narrative form. The specific claims being made had not been clearly set out and the form had been completed without the benefit of legal advice. The claims arising appeared to comprise unlawful sex and sexual orientation discrimination.

[2]The respondents lodged a response form denying that there had been any unlawful conduct. There were also potential time bar issues arising.

[3]At a telephone case management preliminary hearing on 6 April 2023 the Employment Judge had noted that there had been a lack of clarity as to the precise claims and issues and given the large number of claims that appeared to be made the parties were directed to focus matters in writing. The Judge issued a number of case management orders at that hearing to ensure the parties worked together to focus the issues and to ensure the hearing could proceed fairly.

[4]A final hearing has been fixed for 10 days in September and October to determine all issues.

[5]It is not clear whether or not the final issues have been agreed in this case. Claimant’s application for strike out of the response

[6]On 13 June 2023 the claimant wrote to the Tribunal seeking strike out of the response on the basis of the conduct of the respondent (in fact the respondent’s agent) arguing that their actions were frivolous, vexatious and an abuse of process. He argued that his ability to progress his case had been impeded. In essence he was submitting it was not possible for him to have a fair hearing because of how the respondent’s agent had acted in his view.

[7]The claimant’s application was based upon the fact the respondents had denied events and claims in their response but “not provided any evidence to support their denials”. It was also alleged that the respondent had made a number of unsubstantiated allegations against him which suggested (to the claimant) that the respondents were not interested in resolving the dispute through the Tribunal process and may instead have been trying to harass and intimidate him. It was also alleged the respondent submitted a document to the Tribunal in compliance with an order following the preliminary hearing but the person who submitted the document had no authority to do so and so the claimant alleged the order had not been complied with. This was because the person who submitted the document (who was from the respondent’s agent’s business, and in fact the owner, was not the named representative.

[8]It was also alleged that the respondent had selectively disclosed evidence, withheld crucial emails and lied. It was asserted that the attempt to justify selective disclosure (by relying upon legal privilege) was frivolous and vexatious. It was alleged that the failure to disclosure crucial emails was a breach of rule 31 and the respondents’ request that the claimant ask questions of a witness directly at a hearing rather than provide information in advance undermined his ability to present his case fairly.

[9]The claimant set out some further specifics of the foregoing actions arguing the respondent’s conduct was “egregious” and seriously undermined his ability to present his care fairly.

[10]The claimant asserted that “striking out the respondent’s case is not only an appropriate remedy but necessary step to uphold the principles of fairness and justice”.

[11]The claimant’s email of 13 June 2023 was sent at around 10pm and had followed an email that was sent by the respondent’s agent at around 430pm. The respondent’s agent in their email had alleged the claimant was “displaying unacceptable and unnecessary behaviour towards the respondents and a witness”. Actions of the claimant were set out noting that if the claimant were to continue to act in the way he had done, an application for strike out of the claim would be made.

[12]On 15 June 2023 the claimant sent a further communication to the Tribunal making further representations as to why the response should be struck out.

[13]In particular the claimant addressed 2 specific incidents. The first was calls he had made to the respondent’s agent’s office which he argued were necessary and the second was that the respondent’s agent in response to an email he had sent had replied stating “definitely add this email to the tribunal emails!” which the claimant said was unprofessional and intimidating. He argued that the unprofessional and intimidating nature of the communications justified striking out the response to “uphold the integrity of the proceedings”.

[14]On 19 June 2023 the claimant sent a third application adding further comment and grounds to his application arguing the respondent has failed to provide a substantive response to the claims, failed to comply with an order and made fabricated representations. It reiterated points made before.

[15]The claimant argued that the respondent had falsely accused him of aggression and issuing threats. He argued this was fabrication and an attempt to undermine his case. He also argued the ET3 had failed to set out any substantive response and his claim had not been properly responded to. Those matters, it was alleged, justified strike out of the response.

[16]On 19 June 2023 the respondent’s agent had written to the Tribunal again noting conduct of the claimant and arguing that the claimant’s approach to the litigation has been “disproportionate, overly aggressive and encroaching on vexatious”.

[17]The claimant responded on 20 June 2023 arguing that the respondent’s agent’s approach amounted to a failure to comply with the rules. Respondent’s response to the application

[18]The respondent set out in a 23 paragraph submission its substantive response to the claimant’s application for strike out of the response, having been asked for comment. The author of the document is a solicitor.

[19]The respondent argued that there had been no failures by the respondent to comply with the orders and the points made by the claimant did not justify striking out the response. The response noted that the claimant on 20 June 2023 argued the respondent had a duty to provide all relevant documents relied upon “under UK employment law”. The respondent’s agent argued the claimant was seeking a large number of irrelevant and disproportionate communications and that some of the communications were subject to legal privilege.

[20]The submission refers to various communications of the claimant arguing that the claimant was seeking to threaten and intimidate a witness. It was also alleged that attempts to seek documents was unnecessary and expensive with some emails being sent directly to the respondent not involving the respondent’s agent.

[21]In short, the respondent’s agent argued that the claimant’s approach was disproportionate to the issues that require to be determined.

[22]With regard to the specific points the claimant had made, the respondent’s agent argued that the document submitted to the Tribunal was submitted with the authority of the respondent. It was the owner of the respondent’s agent’s business that submitted the document.

[23]It was denied there was any selective withholding of information. A subject access request had been complied with. An email had been withheld as it was subject to privilege (containing legal advice and identifying other individuals) and an explanation given for this. The specific email to which the claimant referred had ultimately been disclosed and supported the respondent’s position. The submission stated that the document was provided to the claimant by the respondent as part of standard disclosure and there was no legal obligation to provide the document sooner.

[24]It was denied that there had been any failure to provide documents. In any event the document had been provided.

[25]The respondent’s agent also argued that it was reasonable for the claimant to be advised that it was proper to put questions to a witness rather than seek information in advance and that is a common feature of litigation.

[26]The respondent argued that strike out is a draconian remedy and should not be used where there are disputes of fact. It was denied there was any ground to support the application and in fact the claimant’s conduct, including the application for strike out, was an example of his conduct to date in putting the respondent to further cost, harassment and disproportionate expense. Matter to be determined in chambers

[27]Both parties confirmed that they wished the claimant’s application to be considered in chambers without the need for a hearing, both parties having provided their written submissions. Claimant’s further submission in support of striking out the response

[28]On 30 June 2023 the claimant provided a further 8 page document reiterating the application to have the response struck out. The respondent’s agent objected to the email arguing that there was no need for any further communication and this was “typical of the claimant trying to have the final word”. The respondent noted the further time and expense required in dealing with this matter further.

[29]In the claimant’s additional submission, it was alleged there had been a consistent disregard for procedural rules, a failure to provide a substantive response to the claims and a continuous attempt to undermine the integrity of the proceedings. It was asserted that there had been a pattern of misconduct raising serious concerns of the respondent’s credibility and commitment to upholding fairness and justice wasting valuable time.

[30]It was alleged the respondent failed to engage with the claim and contains a blanket denial. That demonstrated “a lack of credibility and warrants consideration for striking out the respondent’s case”.

[31]The claimant asserted that the respondent mishandled his complaint and failure to follow proper procedures. The respondent had sought advice from a law firm before investigating the claimant’s complaint which the claimant said raised concerns about the respondent’s impartiality and undermined the integrity of the proceedings

[32]It was alleged that the respondent’s agent had lodged a document with the Tribunal without authority. The person from the respondent’s agent’s business (its owner) was alleged by the claimant not to have authority (as she was not the named representative) and so her actions should be ignored. Reference was made to another case involving the respondent’s agent.

[33]The claimant then referred to the email from the respondent’s agent which the claimant said was unprofessional and intimidating. It was alleged this undermined fairness and impartiality. Explicit reference to the Tribunal “can be interpreted as a threat” and such behaviour was intimidation and hostile.

[34]It was also alleged that withholding a document which was said to be legally privileged infringed on the claimant’s right to a fair hearing and made it more difficult for him to succeed.

[35]The claimant alleged the respondent falsely accused the claimant of aggression and threats to witnesses but the evidence did not support that. The fabrication of this was said to undermine the claimant’s case and prejudice proceedings; it was frivolous and vexatious.

[36]The claimant denies making excessive contact with the respondent’s agent’s office. He asserted he had only made 3 calls which were appropriate. This wasted valuable time and resources. The respondent’s conduct was frivolous and vexatious. It was unreasonable and harassing of the respondent’s agent to behave in such a manner.

[37]It was argued the respondent’s case was frivolous, vexatious and an abuse of process. The refusal to provide any substantive response to the claims indicates a lack of genuine interest in resolving the dispute and focussed on harassment and intimidation. Secondly making baseless allegations without evidence undermined his reputation and credibility and finally the respondent’s behaviour was said to be unreasonable and disruptive throughout the process.

[38]The claimant referred to the respondent’s agent’s suggestion that questions were asked of the witness during a hearing rather than in advance which the claimant said prevented him from conducting a fair hearing.

[39]The claimant also relied upon the respondent’s agent’s email stating that communication would only follow if ordered by the Tribunal. It was alleged this breached rule 20 which he said required parties to communicate with each other.

[40]The claimant also referred to an offer that was made with a threat of costs if it not was accepted which the claimant argued was coercion.

[41]The claimant argued that it is not correct to characterise his emails as excessive, unnecessary or disproportionate. The claimant set out each email and the explanation for it together with the context. The claimant was engaging in detailed preparations for his case and wished as much information as he could obtain from the respondent’s agent.

[42]The claimant takes issue with the respondent’s agent providing a document by the owner of the respondent’s business rather than the named individual who had previously acted. He argued this was done without consent.

[43]The claimant also takes issue with the suggestion that the document the respondent withheld was subject to privilege and he argues the email supports his position. It is alleged there were no good reasons for failing to provide the documents. The claimant argues there is a duty to provide the document as part of his subject access request. The refusal to provide the document was said to breach rule 31(1)(b) which the claimant said required the email to be disclosed. The claimant also refers to rule 32 which the claimant said prevented restricting the parties’ ability to ask questions.

[44]The claimant also said previous actions of the respondent’s agent is relevant to show their behaviour which should be taken into account. Another submission from the claimant

[45]On 11 July 2023 the claimant submitted a further submission running on this occasion to 23 paragraphs and 8 pages with detailed attachments. The submission reiterates the existing grounds and provides the evidential basis. Thus the submission deals with the alleged inadequate response to the claims, the alleged mishandling of the discrimination and harassment complaint, the alleged unauthorised submission to the Tribunal by the owner of the respondent’s agent’s business, an intimidating email from the respondent’s agent, communications of the parties, attempts to limit cross examination, ceasing communication without reasonable excuse and selective disclosure of evidence. The points made and evidence submitted reiterates the issues made in previous correspondence and provides a little more detail. These points have been considered in full in reaching the decision below.

Law

[46]A Tribunal is required when addressing matters such as the present to have regard to the overriding objective, which is found in the Rules at Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, rule 2 of which states as follows: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Strike out

[47]Rule 37 provides as follows: “(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—… (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or response has been scandalous, unreasonable or vexatious.”

[48]In Bennett v London Borough of Southwark

[2002] IRLR 407

the Court of Appeal observed (at paragraph 26) that the underlying mischief to this area of the rules is the notion of abuse – has there been conduct of proceedings which amounts to abuse of the Tribunal's process. Elias LJ summarised the approach to be taken in Abegaze v Shrewsbury College of Arts

[2010] IRLR 236

at paragraph 15: ''In the case of a strike out application it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed'.' This approach has been approved in by the Court of Appeal in Blockbuster Entertainment Ltd v James

[2006] IRLR 630

[49]The first question is whether there has been scandalous, unreasonable or vexatious conduct of the proceedings. If so, the second is whether a fair hearing is no longer possible. If that is fulfilled the third is whether strike out would be a proportionate response to the conduct in question.

[50]With regard to whether there has been scandalous, unreasonable or vexatious conduct, there must be a conclusion by the tribunal not simply that a party has behaved scandalously, unreasonably or vexatiously but that the proceedings have been conducted by or on their behalf in such a manner

[51]The conduct in question may be that of the party's representative as well as the party themselves. In Harmony Healthcare plc v Drewery

UKEAT/866/00

a party was held to be fixed with the conduct of their representative who assaulted the other party's representative in the tribunal waiting room. It is relevant to note that in Harris v Academies Enterprise Trust

[2015] IRLR 208

the Employment Appeal Tribunal upheld a Tribunal's ruling that the conduct of the representative and the party may be distinguished in an appropriate case. The employment judge was held entitled to conclude that the representative's actions were not a reflection of the instructions given and the prejudice of not allowing a full hearing of the discrimination claims would be significant.

[52]Care should therefore be exercised when the conduct in question is that of a party's representative. As indicated, in some, but not all, cases, that conduct can be visited on the relevant party leading, potentially, to a strike out of their claim or response. In Bennett the Court of Appeal stated that what is done in a party's name is 'presumptively, but not irrebuttably' done on his behalf.

[53]'Scandalous', was considered by the Court of Appeal in Bennett. It is not a synonym for 'shocking' but embraces 'the misuse of the privilege of legal process in order to vilify others', and 'giving gratuitous insult to the court in the course of such process'. The Court of Appeal noted the claimant had been 'difficult, querulous and uncooperative in many respects' but was not prepared to assume that this met the definition.

[54]'Vexatious' can include anything that is an abuse of process.

[55]One possible form of scandalous, unreasonable or vexatious conduct is the wilful disregard of tribunal orders. It is not any breach that will meet the threshold. The Court of Appeal in Blockbuster described the 'deliberate and persistent disregard of required procedural steps' as a cardinal example of conduct which would meet the definition.

[56]The second factor that must be considered if scandalous, unreasonable or vexatious conduct of proceedings has been found, is whether a fair hearing is still possible. When striking out a party's case, the Tribunal must explain why a fair hearing is no longer possible or why the case falls within the exceptional circumstance where the fairness of the trial is not a consideration

[57]In Bolch v Chipman

[2004] IRLR 140

the Employment Appeal Tribunal described the reasoning behind the 'no fair trial' factor by stating that a striking out order is not, first and foremost, a tool to punish scandalous, unreasonable or vexatious conduct of proceedings. Rather, it is to protect the other party (and the integrity of the judicial system) from such behaviour which results in it no longer being possible to do justice. A party that acts scandalously, unreasonably or vexatiously in the conduct of proceedings should not thereby gain an advantage of any kind in the judicial process. The court in Bolch approved the High Court decision of Logicrose Ltd v Southend United (1988) 5 March, in which Millett J had observed that the deliberate and successful suppression of a material document 'was a serious abuse of the process of the court and might well merit the exclusion of the offender from all participation in the trial' because it rendered a fair trial impossible, but that if the threat of striking out the claim or defence resulted in the production of the missing document, this might require the lifting of that strike out threat. Once the document had been produced there should only be a strike out 'if, despite its production, there remained a real risk that justice could not be done. That might be the case if it was no longer possible to remedy the consequences of the document's suppression despite its production', adding 'It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, however deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory'.

[58]The third factor which must be considered is that of proportionality. Simler P (as she then was) in Arriva London North v Maseya

UKEAT/0096/16

at paragraph 27) said: 'There is nothing automatic about a decision to strike out. Rather, a tribunal is required to exercise a judicial discretion by reference to the appropriate principles.' Even if there has been scandalous, unreasonable or vexatious conduct of proceedings and a fair trial is not considered possible, the tribunal must still examine the proportionality of striking out the claim or response and must consider other, less seismic orders because, as Sedley LJ put it in Blockbuster the power to strike is 'a Draconic power, not to be readily exercised'.

[59]In Blockbuster the Court of Appeal (at paragraph 21) said: ''it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing'.'

[60]In Blockbuster the claimant had in breach of orders failed to give adequate particulars of his claim, refused to allow the respondent to photocopy his documents, attended on the first morning of the hearing with unseen documents and made changes to his witness statement without prior notice to the respondent. The Court of Appeal upheld the Appeal Tribunal’s decision that the Tribunal had been wrong to strike out the claim. While acknowledging that the claimant had been 'difficult, querulous and uncooperative', the Court of Appeal said that the courts are open to the difficult as well as the compliant.

[61]The proportionality consideration requires an assessment by the tribunal of any alternative, lesser sanctions, for the conduct in question and a balance requires to be struck.

[62]The Tribunal considered the claimant’s application carefully in light of the authorities. Each aspect is dealt with in turn. The Tribunal firstly considered whether the conduct stated by the claimant to exist had been established (and whether it amounted to scandalous, unreasonable or vexatious conduct). Engaging with the claim

[63]The first matter relied upon was whether the respondent had failed to engage with the claim which the claimant said demonstrated “a lack of credibility and warrants consideration for striking out the respondent’s case”. The Tribunal did not consider that a fair summary of the position. Regrettably the narrative style of the claim form makes it difficult to distil the precise basis of each claim. The respondent’s position, which is a common approach in the Employment Tribunal, is to deny that the conduct occurred and that there was any unlawful actions. In other words the claimant is put to proof. It is for the claimant to establish his claims. The conduct of the respondent in this regard is in accordance with normal practice. It did not amount to unreasonable, scandalous or vexatious conduct.

[64]Nevertheless it is important that the issues in this case are fully focussed. A case management preliminary hearing will be fixed to ascertain the extent to which the legal issues in this case have been agreed and what issues are outstanding. The parties will be required to work on a statement of agreed facts and disputed issues that will assist both parties in understanding what is agreed and what is disputed, thereby ensuring the hearing is properly focused. Respondent’s approach in managing matters during employment

[65]The claimant asserts that the respondent mishandled his complaint (during his employment) and failed to follow proper procedures. This was said to occur because the respondent had sought advice from a law firm before investigating the claimant’s complaint which the claimant said raised concerns about the respondent’s impartiality and undermined the integrity of the proceedings. Whether or not legal advice is sought and when it is sought is not a concern of the claimant and cannot be used as evidence as to the veracity of the claimant’s (or respondent’s) position. It is entirely irrelevant to that issue. The conduct of the respondent that gives rise to the claim cannot be a relevant consideration in determining strike out, which refers to the way the proceedings were conducted. It is that conduct which is considered. Lodging a document without authority

[66]It was alleged that the respondent’s agent had lodged a document with the Tribunal without authority. The person from the respondent’s agent’s business (its owner) was alleged by the claimant not to have authority and as such her actins should be ignored.

[67]The respondent’s agent (who is a solicitor) explained that the person who lodged the document was the owner of the respondent’s agent’s business. That by itself is sufficient to explain why that person lodged the document. The claimant’s focus on explicit authority is misplaced and the approach of the respondent’s agent was appropriate.

[68]Reference to other cases involving the respondent’s agent’s business and personnel is entirely irrelevant to the issues in this case. Response in an email by the respondent

[69]The next issue is the respondent’s agent email which the claimant said was unprofessional and intimidating. It was alleged this undermined fairness and impartiality. Explicit reference to the Tribunal “can be interpreted as a threat” and such behaviour was intimidation and hostile.

[70]While it may not be a satisfactory response by the respondent, the Tribunal did not consider the conduct of the respondent’s agent to be such as to justify criticism when viewed objectively in context. It was clear that the relationship between the parties dealing with this matter was not operating properly. It was clear that the respondent’s agent was becoming concerned and frustrated with the amount of emails and communications from the claimant and this further email was another example. It is regrettable that the claimant was not able to be more focussed in his communications. The approach taken in his written submissions on strike out exemplifies his approach. The claimant has chosen to submit 3 different submissions, reiterating many of the same points, rather than being more focused and succinct. The approach the claimant has taken has resulted in more time being required to deal with the issues. That was the context in terms of the claimant’s approach that led the respondent’s agent to send the email. The respondent’s agent’s conduct was not such as to justify striking out the response. Both parties require to adjust how they conduct themselves to find a better way of working together.

[71]These issues require to be dealt with at a case management preliminary hearing. It is necessary that the parties are reminded of the need to work together and to act professionally towards each other. Rather than focussing on procedural issues and the issues forming part of this lengthy procedural process, the parties’ energy would be far better spent agreeing the issues to be determined, what facts are agreed and what is in dispute. The focus needs to be on finalising the arrangements and documentation for the hearing, which both parties are clearly capable of doing.

[72]As a result of the way in which the relationship between the claimant and the respondent’s agent has developed, the overriding objective has been forgotten by both parties. The parties have lost the ability to work together to achieve a just and fair result and as a result the parties’ positions have become entrenched, focussing on the current matter rather than the key issues in this case. That requires to change. Failure to provide an email

[73]It was also alleged that withholding a document which was said to be legally privileged infringed on the claimant’s right to a fair hearing and made it more difficult for him to succeed.

[74]The Tribunal did not consider that a fair criticism of the respondent’s agent. The respondent’s agent ultimately did provide the email and initially did not disclose it, believing there to be a legitimate reason not to do so. The respondent’s agent is entitled to take a view and change their position. There was no obfuscation. The respondent’s agent acted reasonably.

[75]The Tribunal did not accept the claimant’s characterisation as to how the respondent’s agent dealt with this as supporting his application. Regrettably the claimant’s perception as to how the respondent’s agent acted had become masked by his belief that the agent was seeking to hinder the claimant in the pursuit of his case. As a consequence of the nature of the relationship, the respondent’s agent had equally found it difficult to communicate with the claimant, given their belief in the claimant’s desire to cause additional costs by making disproportionate demands in repeatedly lengthy communications.

[76]The authorities as set out above also make it clear that the fact the document has been provided now is relevant and there is no real prejudice in terms of progressing to a final hearing. It is not uncommon in exchanging documents for there to be differences of opinion as to documents and their status. The respondent’s approach was not such as to justify strike out. Calls to respondent’s agent

[77]The claimant set out the calls he made to the respondent’s agent and his belief that he calls were genuine. The issue in this matter is the breakdown in working relationship between both sides and the failure of both sides to see the other party’s position. That prevented matters from fairly progressing. It is not fair to characterise the respondent’s approach as frivolous and vexatious nor of being unreasonable and harassment. It was a regrettable consequence of the breakdown in working relationship. Respondent’s approach said to be unreasonable

[78]The Tribunal did not accept the claimant’s assertion that the respondent’s case was frivolous, unreasonable, vexatious and an abuse of process. The claimant has been put to proof as to the large amount of claims he has made. The failure to provide a point by point response to each of the lengthy issues raised does not show a lack of genuine interest in resolving the dispute as alleged nor does it support the assertion the respondent’s agent is focussed on harassment and intimidation. The claimant has raised a large number of matters which require to be determined in evidence, unless parties agree specific facts which will be progressed at a preliminary hearing.

[79]The Tribunal does not accept the respondent made “baseless allegations without evidence” and thereby undermined the claimant’s reputation and credibility. The respondent’s agent found the claimant’s manner of working and the way he conducted his preparations as challenging and the respondent’s agent believed the claimant was seeking to create excessive demands. That was a consequence of both parties’ approach. The Tribunal does not consider that the respondent’s agent’s behaviour was unreasonable, vexatious or disruptive. It is clear that the breakdown of the parties’ relationship led to the entrenches position of both parties and prevented matters being progressed properly. Both parties must take responsibility for this. Question of a witness

[80]The claimant is unhappy that the respondent’s agent suggested that the claimant put questions to a witness rather than seek information in advance. That is a common approach taken in litigation and it is for each party to determine how best to prepare for their case.

[81]The claimant’s reference to the rules was not accurate and did not set out the precise terms of the rules set out in the current Rules. Rule 32 simply sets out the power to order a witness to attend to give evidence.

[82]The Tribunal did not consider that the initial refusal to provide the document was a breach of the rules. In Scotland it is for each party to provide the material on which they intend to rely. There was no conduct of the respondent (or more accurately their agent) that could fairly be regarded as scandalous, unreasonable or vexatious in their conduct of these proceedings. Threat of expenses

[83]The claimant also referred to an offer that was made with a threat of costs if it not was accepted which the claimant argued was coercion. The approach of the respondent was not such as to be scandalous, unreasonable or vexatious. It would not justify strike out of the response. The claimant is clearly intelligent and articulate and capable of deciding whether or not to accept an offer and to meet any consequences of doing or not doing. The warning letter was not unreasonable. Ceasing communication without reasonable excuse

[84]The claimant alleges that the respondent’s agent’s decision not to communicate with the claimant unless ordered by the Tribunal is scandalous, unreasonable or vexatious. The Tribunal considers this to be an example of the consequence of the professional relationship between the parties not operating properly. The respondent’s agent has reached the position that it considers the claimant to be seeking to frustrate the process by disproportionate communication and is seeking to focus only on what is absolutely necessary to progress matters.

[85]The Tribunal does not consider this to amount to scandalous, vexatious or unreasonable conduct in context but does consider it regrettable. It is for that reason that a case management preliminary hearing is essential to ensure both parties understand the need for proportionality and working together. The final submission of the claimant follows an earlier submission which reiterated much of the same points and evidence. The claimant must seek to understand the consequence of production of lengthy and detailed correspondence, particularly where much of the content has already been provided. It is far better to be succinct and clear and focus on the key issues. That is a matter that both parties need to understand to ensure the case can proceed proportionately and with due regard to cost. Taking a step back

[86]The Tribunal took a step back to consider the claimant’s application in light of the full factual matrix and how the respondent’s agent has acted and reacted. The Tribunal did not consider the claimant’s assertion that the respondent’s agent’s approach exhibited a pattern of behaviour that justified strike out given the legal test and the authorities in this area. This was a regrettable case whereby the relationship between the parties had not progressed properly or professionally. This is not a matter for which either party was solely responsible. The claimant provides a number of lengthy and detailed communications, often repeating earlier points. The respondent sees this as a way to seek to frustrate the process by increasing the cost and time needed which the respondent’s agent does not consider proportionate or fair.

[87]The claimant viewed the actions of the respondent’s agent through the prism of his firm belief that the intention was to block his attempt to fairly progress his case. Regrettably that made his position become more entrenched. The actions of the respondent were all considered an attempt to prevent the claimant from having a fair hearing. That was misinterpreting what the respondent’s agent was doing, which was by and large seeking to keep matters within reasonable bounds in terms of cost and time. The parties’ positions diverged and continued to do so. The relationship is not working.

[88]Looking at matters as a whole, there was no conduct of the respondent that satisfied the test to justify striking out the response. Having stood back and considered each of the claimant’s submissions and the respondent’s conduct, the Tribunal is satisfied that there was no conduct which is properly characterised as scandalous, unreasonable or vexatious and the respondent has materially complied with the Tribunal orders. The Tribunal has not gone into forensic detail in relation to each of the points the claimant has made in his most recent submission. This is because the submission is based on essentially the same premise as summarised above. The key themes are the same and the Tribunal is satisfied none of the points made by the claimant justifies characterisation of the respondent’s agent’s conduct as scandalous, unreasonable or vexatious. The points arise as a result of the relationship between the parties breaking down and both parties being unable to see an objective way forward that is ironically in both parties’ interest. There are no matters within the most recent submission that change

[89]Many of the points the claimant makes in his most recent submission relate to how the respondent acted during his employment (and issues with regards to Code of Practice). Those are matters to be determined at the final hearing and have no bearing on the strike out question at this stage (which relate to conduct of the proceedings). They are matters requiring evidence (or matters the respondent may be prepared to concede). The issues with regard to the respondent’s conduct during their defence of the case are not issues that would satisfy the definition. The conduct of the respondent has arisen as a direct consequence of the way in which the claimant has conducted his case. As the claimant is not legally qualified the claimant is unlikely to understand the normal approach to litigation which is why a case management preliminary hearing is necessary to address both parties on preparations for the hearing and the way in which the parties must work together in a proportionate and fair way.

[90]The first question in dealing with strike out is whether or not there has been conduct which can properly be described as scandalous, unreasonable or vexatious. That question is answered in the negative. A fair hearing still possible and not proportionate to strike out

[91]Even if there were such conduct, the Tribunal would not have been satisfied that a fair hearing is no longer possible such that strike out would be appropriate. The parties require to work together professionally. Both the claimant and the respondent’s agent have the ability to do so. The issues in this case have arisen because of the breakdown in working relationship as set out above. Both parties must share responsibility for working together and moving matters forward. A fair hearing can still proceed once the parties take a step back and understand how matters require to be progressed..

[92]The Tribunal would also not be satisfied it would be a proportionate response to strike out the response given the fact the Tribunal would not hear the respondent’s defence of the claim. That does not put the parties on an equal footing. It would be excessive to strike out given less draconian options available. The obvious way forward is to have a case management preliminary hearing to require the parties to explain their position and to require the parties to work together, as the Rules require. Issues arising relate to agent’s conduct

[93]Further, the issues the claimant raise are issues as to the respondent’s agent rather than the respondent. As the authorities above indicate, it is not every case that an agent’s conduct would be ascribed to the principal. Given the specific relationship issues as between the parties in this case, this may well have been one of those cases where the actions of the representative could be distinguishable from those of the party, had it been necessary to consider this point. It has not been necessary to consider that issue given the decision. Moving matters on

[94]It is necessary that both parties finalise the issues in this case, identify what facts can be agreed and what are in despite and what their respective positions are. That then ensures matters progress and the parties can deal with each other in a professional and proportionate manner. The parties should ensure this is progressed expeditiously by working together in a collegiate way with due regard to cost and proportionality.

[95]It is in the interests of justice to progress this case to a final hearing without further delay. The parties are required to attend a case management preliminary hearing to explain whether the list of issues setting out the specific and precise issues for each claim has been agreed and if not why not and how the parties are going to focus on working together to finalise preparations for the final hearing and how they are to work together. The parties should be expected to work on a statement of agreed facts and disputed issues in relation to each fact necessary to determine the issues in this case and work together to ensure the hearing can proceed expeditiously.

[96]Both parties are reminded of the overriding objective and of the need to work together to ensure the hearing can be proceed in a proportionate and fair way. The parties do not require to like each other but they must be able to work together in a professional way. They are clearly capable of doing so. This is a case giving rise to serious issues in respect of which evidence requires to be led to determine the outcome. That should proceed without delay.

[97]The response is not struck out and the final hearing shall proceed with the parties working together to achieve the overring objective.

Law

[1]The claimant lodged a claim on 7 February 2023. The claim ran to 187 paragraphs on 29 pages and was in narrative form. The specific claims being made had not been clearly set out and the form had been completed without the benefit of legal advice. The complaints appeared to comprise unlawful sex and sexual orientation discrimination.

[2]The respondents lodged a response form denying that there had been any unlawful conduct. There were also potential time bar issues arising.

[3]At a case management preliminary hearing on 6 April 2023 I noted that there had been a lack of clarity as to the precise claims and issues and given the large number of claims that appeared to be made the parties were directed to focus matters in writing. The parties were to work together to focus the issues and to ensure the hearing could proceed fairly.

[4]The claimant subsequently argued the respondent’s agent’s conduct was such as to justify strike out of the respondent and a lengthy application was raised by him. I dismissed the application as I did not accept the claimant’s assertions. This was a case whereby the relationship between the parties had not progressed properly. This is not a matter for which either party was solely responsible. The claimant issued a number of lengthy and detailed communications, often repeating earlier and irrelevant points. The respondent’s agent had become frustrated at the claimant’s failure to focus on the issues in this case.

[5]I stated that it was necessary that both parties finalise the issues in this case, identify what facts can be agreed and what are in dispute and what their respective positions are. The parties were directed to work together and ensure the claim was progressed expeditiously by working together in a collegiate way with due regard to cost and proportionality.

[6]Both parties were reminded of the overriding objective and of the need to work together to ensure the hearing can be proceed in a proportionate and fair way. I observed that the parties did not require to like each other but they must work together. They are clearly capable of doing so.

[7]At a case management preliminary hearing in September 2023, I emphasised that correspondence should only be sent when necessary and in a succinct form. The parties were again reminded of the need to work together to ensure the hearing progressed and the overriding objective, of dealing with matters fairly and justly, was achieved.

[8]My direction was not followed and the respondent now seeks strike out of the claimant’s claim on grounds that the manner in which the proceedings had been conducted by the claimant has been scandalous, unreasonable or vexatious and that it is no longer possible to have a fair hearing. The application was made under cover of an email of 26 January 2024 and given the amount of correspondence and issues arising in this case had not been considered until this hearing had been fixed.

[9]The claimant disputed the application setting out his position in detail.

[10]Other matters were discussed at the preliminary hearing, but I decided to hold off issuing my decision in relation to those matters (and the Note relating to the hearing) until I had determined the strike out application. Given the issues arising and consequences of the application, I have taken considerable time to carefully consider the facts and issues and the claimant’s response. The application

[11]The respondent’s agent argued that the claimant’s conduct included directly discriminatory remarks and threatening and intimidating behaviours, instances of blackmail and unnecessary and repeated voluminous correspondence which was an abuse of process and included attacks on individuals or attempts to relitigate matters already determined which aim to cause deliberate inconvenience and cost.

[12]The respondent’s agent noted that 96 emails had been received from the claimant, each going beyond the merits of the case. The sheer volume of communications was said to show how unreasonable the claimant’s conduct had been which attempted to create an “environment of undue inconvenience and suggesting a deliberate strategy to wear down the patience of those involved in the case”.

[13]With regard to direct discrimination, in an email of 26 September 2023 to one of the respondent’s agent’s solicitors (Ms Kaur Gill) the claimant said: “with the greatest of respect …, I became suspicious when a Sikh lady from Kent used the phrase “Ought to take heed”. I’ve asked the Tribunal to order your attendance at the PH It would be nice to finally meet you”.

[14]The respondent’s agent advised that “attacks on respondent representatives have remained steadfast with the claimant consistently expressing his position since initiating the claim”. It was said the claimant had articulated several allegations, none of which was true or demonstrated any relevance to the core of the claim.

[15]The respondent’s agent referred to a communication of 24 January 2024 which ran to 32 pages with a significant portion of that correspondence not being relevant and focussed on the claimant’s views with inaccuracies. The claimant had made false accusations about the respondent’s agent’s business and those instructed. The communication focussed on allegations against the representative which was unconnected to the case.

[16]The respondent’s agent also argued that the claimant did not accept decisions made by the Tribunal. Thus he reapplied to have grounds added to his claim which had been withdrawn by him at the preliminary hearing, and sought to raise matters from another case against a different employer making allegations about the representative. The claimant’s list of issues was another attempt to raise matters that had already been decided and having been told to work together and focus issues, the claimant responded with a 10 page document, which had led me to say that this was another example of the claimant providing a detailed and lengthy communication which was not germane to the issues. I had told the claimant to focus his claim and ensure any response was proportionate. The claimant’s response was to send a lengthy and detailed document not focussing the issues.

[17]It was also alleged the claimant conducted himself in a disruptive and unruly manner veering away from the substantive merits usually seeking a settlement. The communications were said to carry a threatening tone. The claimant had listed celebrities as witnesses, including Lady Gaga, a high profile sports star and that he had sought assistance of the ruling family of Qatar. He continued to seek settlement despite being told this was not of interest to the respondent.

[18]The respondent’s agent also noted a number of inconsistencies in the claimant’s communications and pleadings and it was suggested the claimant seeks to place an unfair interpretation upon evidence and that his position is contradictory. It was asserted that there was little chance of the claimant’s position being accepted on the balance of probabilities given the likely interpretation to be placed upon the facts.

[19]With regard to the submission that a fair hearing is not possible, the respondent’s agent argued that there is significant prejudice to the respondent if the proceedings are allowed to continue. More than a year had passed and the claimant continues to seek to amend his claim and refuse to cooperate with the respondent’s agent to focus matters despite considerable judicial input. It is not in accordance with the overriding objective to expect a respondent to continue to face proceedings conducted in such a manner. The claimant has frustrated progress of the case and is likely to continue to do so.

[20]It was also alleged that the claimant’s behaviours “can be characterised as stalkerish and harassing”. For example the claimant said he had watched a named individual outside the respondent’s venue subsequent to postponement of the hearing and enlisted individuals to confirm the position. The claimant had engaged in unwanted intrusions into the respondent’s agent’s private life analysing her IP address with communications about where the representative lives, which is a breach of privacy and creates discomfort and concern.

[21]On 1 March 2024 the claimant responded arguing that “it completely flies in the face of justice that an unregulated party telling a parcel of complete lies gets a discrimination hearing before the claimant does. He said the respondent has “done nothing but impugn the judge and the Tribunal”. The claimant referred to CPR 3.4(2)(b) and (c) (which does not apply in Scotland).

[22]The claimant alleged there was no “voluminous document spanning 32 pages” submitted on January 24, 2024. He said the strike out application was opportunistic not necessary particularly given “the tribunal’s judgement of the claimant is that he is intelligent and articulate and understands the legal elements of his claims”.

[23]The claimant said he had analysed the allegations about an excess of correspondence and argued “volume of correspondence alone does not necessarily equate to deliberate procedural non-compliance”.

[24]The claimant noted that on 20 November 2023 the tribunal wrote to parties seeking an urgent response from the respondent regarding the claimant’s 12 November submission of his list of issues. There was no response until 4 January 2024. The claimant stated that the principal agent alleged her employee had resigned, and did not have access to the company email which was “lies” because there was evidence of the email being used.

[25]With regard to the argument the claimant was attempting to relitigate matters already decided, the claimant referred to witnesses and their proposed attendance which the claimant said was “demonstrable behaviour of misleading the claimant and the tribunal and proves the respondents’ submissions are founded upon deceitful tactics and amount to a clear abuse of the tribunal process. Such conduct seriously jeopardises any remaining fairness in proceedings and is clearly designed to force the claimant to contact the tribunal and then complain of his communications in a strike out applications based on “excessive correspondence” and “intentionally creating undue inconvenience”. The respondent’s conduct is designed to inflict prejudice upon the claimant”.

[26]The claimant reminded the tribunal of his disability through mental health and submitted the respondent “knowingly aware of the constraints associated with his disability, are seeking to ambush the claimant and take advantage of the gaps in mental capacity and focus”. It was submitted that the respondent’s conduct amounted to a clear abuse of the tribunal process. He said “they are taking advantage of disability to defeats justice. The respondent’s conduct itself is clearly coordinated to create undue inconvenience and prejudice the claimant. It does not align with proportionality and cost and distracts the focus and need to progress matters expeditiously”.

[27]The claimant observes that the respondent made an allegation of discrimination from a September 2023 matter. The claimant cited Nolan v Devonport

[2006] All ER (D) 83

where an application to set aside a default order was struck out on the basis the defendant had delayed too long in making the application. The claimant said he could not reasonably understand why the respondent waited over 5 months before formally addressing it through this application. This substantial, unexplained delay itself was said to cast doubt on the credibility and materiality of the discrimination allegation. If it was genuinely impairing fair process to an irreparable degree, logically it would have been acted on much sooner. The timing instead suggests opportunism, not necessity.

[28]The claimant also relied on Smith v Tesco

[2023] EAT 11

that strike out “should not be seen as a green light for routinely striking out cases that are difficult to manage...Strike out is a last resort, not a short cut. For a stage to be reached at which it can properly be said that it is no longer possible to achieve a fair hearing, the effort that will have been taken by the tribunal in seeking to bring the matter to trial is likely to have been as much as would have been required, if the parties had cooperated, to undertake the hearing”. Even in a case of deliberate, knowing wrongdoing by a party, striking out may well not be warranted if a fair hearing is still possible.

[29]The claimant referred to issues he had with what the respondent’s case was and issues as to documents which he said “calls into question their genuine efforts in accordance with the overriding objective and the claimant’s rights to a fair hearing”.

[30]With regard to the claimant missing deadlines, as a litigant in person, some procedural missteps may happen but this does not preclude a fair hearing. The Tribunal has powers to control correspondence or give directions if needed.

[31]The claimant maintains a fair hearing is possible and none of the exceptional factors can be evidenced. While the volume of correspondence presents challenges, these challenges are “purposely created by the respondent”. Several other options exist to facilitate fair proceedings. It cannot reasonably be said cooperation is outright impossible when it is the respondent who is obstructive. Strike out cannot be used as a mechanism to bypass proper adjudication. It is not in the interest of justice to delay proceedings further. The significant delay and undue stress imposed by the respondent is seriously exacerbating the claimant’s disability and general wellbeing. Email of 11 January 2024

[32]The respondent’s agent referred to an email the claimant sent on 11 January 2024. That had been following previous emails in which the claimant had said: “Believe it or not enquiries are being made to see if Lada Gaga can come and ask me my questions when giving evidence given her royal figure in the LGBT world…. Please don’t mistake my confidence for arrogance. I’m the guy who goes out in London on Saturday nights and eats in restaurants myself. I also the guy that used to turn up to work at your client’s venues on Saturday night on my electric scooter”.

[33]The claimant then said: “So it’s looking like a pro LGBT celebrity appearance to make my closing arguments isn’t a no, rather it’ll come down to a fee. Theres also discussion about Instagram posts to raise awareness (the use to being on your knees and the your people text messages (sic))… I think your client should consider the risks of living in a day and age when companies get cancelled. I’m open to settlement until 5pm tomorrow afterwards I’ll signal to my good friend the Shiek that I’m happy for him to pay for assistance in raising awareness. I have been true to every single word I have said to you from the beginning”.

[34]The claimant accepted he had sent these emails and said the respondent had been unreasonable. He explained that he “suffers mental health problems and things build up and come to the surface”. He said he tried to manage it and on occasion was unable to control his episodes. The claimant apologised for the emails and accepted they were unprofessional and unreasonable. Claimant is disingenuous on 29 February 2024

[35]Counsel then referred to an email of 29 February 2024 when the claimant had advised the Tribunal (copying same to the respondent’s agent) that there were no objections to an amendment when he knew the respondent had objected and set out its objection in writing. The claimant had been disingenuous as he had known the respondent’s agent objected to the amendment the claimant was seeking to make. Claimant’s threatens police on 1 March 2024 unless strike out is withdrawn

[36]On 1 March 2024 (at 08.30) the claimant sent the respondent an email headed “Withdraw your strike out application”. In the email he stated: “Your strike out application if a parcel of lies. I call upon you to withdraw the application as you are clearly abusing the process and abusing the courts. I have concrete evidence that you and your daughters and your organisation have committed fraud, attempted to cover up money laundering, tax evasion and unlicensed operations of alcohol sales. I am inclined to contact the police… If you withdraw the strike out application by 4.30pm I will not contact the police. If you continue to pursue the application then I will go to my nearest police station today and make complaints and present every piece of evidence that I have. Please let me know how you want to proceed.” Claimant sends inappropriate communication on 3 March 2024

[37]Counsel also referred to an email the claimant sent to the respondent’s principal agent on 3 March 2024 headed “I pray for you”. The email stated: “Today at mass I said a prayer to St Therea and lit a candle for you. I am a Eucharistic minister… I pray that God and the Holy Spirit will guide you to find peace and contentment in your life and will lead you to represent the power of good rather than the devil who currently controls you. I also prayed for your father who in spirit world (sic) and asked him to help guide you to find faith and peace in your life. I will keep him in my prayers as I attend Mass everyday this lent… I have a special set of rosary beads which were personally blessed by Pope John Paul when he visited Glasgow. I would like to send them to you if you could provide me with an address that they will reach you. Yours in Christ”. He also attached a picture of the Virgin Mary and candles (which looked like a picture he had taken from within a church).

[38]The claimant apologised for sending the message which he accepted was inappropriate which he said was a “gesture of peace”. Further evidence arises – Email of 12 April 2024

[39]At the hearing, counsel for the respondent noted that there had been correspondence from the claimant that further demonstrated that the claimant’s conduct had been scandalous, vexatious and unreasonable.

[40]In an email of 12 April 2024 the claimant stated to the respondent’s agent that: “You are in contempt in every case you represent. You have committed fraud by false representation and you have unlawfully recorded a remote hearing and quite frankly you deserve 2 years in prison”.

[41]The claimant’s response to the email was that he now regretted sending it. He said he felt passionately about his case and accepted the email was not professional. The claimant said he had previously apologised but accepted he had sent further emails of a similar nature following his apology. The claimant’s position

[42]The claimant was asked if he accepted there had been a pattern of emails which appear to be unacceptable and unprofessional. He denied that there was a pattern and accepted that he should not have sent some of the emails and would give more thought before issuing communications.

[43]The claimant said that there were responses from the respondent which he said had “fanned the flames” and had been blunt and regretted some of his responses. He also said that he had apologised at the time for emails.

[44]The claimant undertook not to send any further emails which could be considered unprofessional or potentially offensive and he would force himself to stop and ask someone else to proof read before sending them. He said if he felt stressed or anxious, he would refrain from issuing correspondence until he had calmed down.

[45]Counsel for the respondent was not aware of the emails the claimant had sent apologising for the communications and wished to take instructions as to whether the application for strike out was being maintained given the claimant’s undertaking going forward. It was agreed the claimant would send the emails in which he had apologised and the respondent’s agent would seek instructions to determine whether the application was being maintained. Respondent maintains its position

[46]Prior to close of business on the date the claimant was to send the emails (at 4.16pm) the respondent’s agent wrote to the claimant and the Tribunal noting no emails had been received by the claimant but “more fundamentally, the respondent’s representatives can confirm no written apologies were received following any of the abusive, threatening, and disconcerting emails to which the tribunal were drawn, in the manner that the claimant has said to the tribunal”.

[47]It was noted that the claimant had attributed “some” of the abuse to have arisen from mental health issues but does not, even now, acknowledge the specific emails the claimant claimed to have apologised for as he said he did at the hearing yesterday. Given the timing it is submitted that apology yesterday should be given minimal weight in assessing and weighing unreasonableness and proportionality of strike out.

[48]It was argued the emails were “intentionally and fundamentally dishonest as well as constituting scandalous and unreasonable behaviour. Taken together with the previous emails of abuse and blackmail (etc), and having already previously been forewarned by the tribunal that he must desist from unreasonable behaviour, it was submitted the claimant’s misrepresentation, in the course of a strike out hearing on the basis of unreasonable behaviour no less, constitutes the height of scandalous and unreasonable behaviour such as to warrant the strike-out of the entirety of this matter as to be entirely proportionate and necessary. Further it was submitted that said behaviour and the repetitive nature of similar behaviour (upon which the latest misrepresentation is on one view an escalation) also render a fair hearing to be not realistically possible and this constituted a ground for strike out.

[49]Around 30 minutes later (and before close of business on 19 April) the claimant responded by email saying he attached the emails apologising and “made it perfectly clear yesterday that I did not want to mislead you and expressed that I did not apologise to every single one individually, however I did apologise for unintended offence regards to the police and followed up with a general apology encompassing all conduct. I understand the respondents comments this afternoon however I maintain that I have been seeking cooperation from the outset and being falsely accused of being a stalker and a harasser and standing outside the tribunal demanding precise personal home addresses only exacerbates my mental health difficulties. Nonetheless, I stand by my commitments I made yesterday.”

[50]The emails the claimant sent comprised an email of 4 March 2024 which was said to include the words: “While I apologise if any content gave unintended offence” and an email sent on 18 April 2024 to the respondent’s agent headed “Letter of Apology” which said: “Dear Ms Barnett, I am writing this email to you to express my sincere and wholehearted apologies for any offence or upset that I have caused to you as a result of my conduct in the proceedings of Duffy v Scotsman Group. Whilst I am accountable for my own actions, mental health is attributable to some of the emails you presented in your bundle and this case has seriously took its toll on my life. However, I am a professional person and there is no excuse for some of the content of some of my emails. I hope that you can accept my apology and we can move forward”.

[51]The claimant also referred to an email of 11 August 2023 when he said: “Finally, I wish to apologise wholeheartedly for any personal offence or upset that I may have caused either of you throughout the proceedings. It certainly wasn’t my intention, and I was simply pursuing my claims with limited resources, but you both strike me as very strong and resilient women. So, to that end, I would be extremely grateful if you could both reach out to your clients today and make them aware of my position and the gesture I am offering. Despite our differences, I hope we can bring an end to matters soon.”

[52]He also referred to an email of 23 November 2023 which he said noted: “As a side note, I don’t feel that I demanded to know your location and I’m sorry if that’s the impression you got. I just wondered if you could help me understand why yourself, [and others] all originate from where you allege to be currently”. Respondent’s response

[53]On 24 April 2024 the respondent gave its response, maintaining their position on the strike-out application and disputing the claimant’s claim that these emails accurately represent what he communicated to the Tribunal.

[54]The email dated 11 August 2023 precedes all the emails cited as evidence of misconduct in the strikeout application. The claimant’s apology on 4 March was addressed to the Tribunal, not the respondent’s agent, and the apology email sent on the day of the strikeout application was said to be insufficient and belated as “it fails to constitute a genuine apology despite his use of the phrase "I sincerely apologise”.” It was said not to be sincere and was disingenuous.

[55]The respondent’s agent noted that just 36 minutes after receipt of his email of apology, the claimant followed up that email with another ‘without prejudice’ email seeking settlement to his claims and citing his survival to the claim and issuing of a “yellow card”. It was said the claimant’s continued course of conduct in sending unwanted emails despite the respondent’s position being made clear is emblematic of unreasonable and scandalous behaviour.

[56]The claimant’s response was that the respondent’s agent’s “continued refusal to set aside differences and focus on what really matters... is a good example of what I have been up against from the outset. The respondent isn’t actively pursuing their case, they are pursuing me. I reaffirm my commitments that I made I am fully prepared to move forward with this case in a respectful and professional manner.”

[57]The claimant then sent a further lengthy email to the Tribunal noting that he is not legally represented and has tried to comply with the directions. He said the respondent stated that he sends several emails; “however, these emails are not irrelevant or useless. Rather, they are professional, respectful, and diligent efforts to work together and progress my case and the issues at hand. From the outset, I have sought to work with and cooperate with the respondent to progress matters. Unfortunately, the vast majority of these attempts are ignored. The respondent has undergone three changes in representation, leading to lengthy periods of non-responsiveness and delays. I understand that I may come across as passionate about my case, which is now 14 months old, and when met with a persistent refusal to work together, this has unfortunately caused me frustration and exacerbated my long-term mental health difficulties. I acknowledge and take full accountability for the emails that may have caused offense to the respondent”.

[58]The claimant referred to further emails and what he considered a lack of cooperation by the respondent. The claimant again said he took “full accountability and sincerely apologise for the emails that have caused offense to the respondent, despite my best efforts in this case, the respondent has consistently levelled baseless accusations against me, labelling me as a stalker, harasser, aggressive, abusive, a discriminator, a thief, and someone who misleads the tribunal. These allegations are entirely untrue and unsubstantiated. I do not seek apologies from the respondent, rather I seek the progression of my case”.

[59]The claimant concluded by saying: “Respectfully, while the respondent and I do not have to like each other, we must work together and focus on progressing the case in accordance with the tribunal's orders and the overriding objective. It is my belief that the respondent's submission of April 24, 2024 dissecting apologies, and the consistent refusal to set aside their differences and focus on achieving the overriding objective, exemplifies the hostility I have faced from the inception of this case. It appears that the respondent is not actively pursuing the case but rather pursuing me personally. I humbly request you consider the entirety of the circumstances in your deliberations, recognising my genuine efforts to comply with all orders and directives and the progress that I have made in my case thus far, despite the numerous challenges and obstacles. I reaffirm my commitments I made at the PH and I want to progress to judgement in a professional and respectful manner”. Law on strike out

[60]Rule 37 provides as follows: “(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 prospects of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued; or

(e) that the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim of response (or the part to be struck out).”

[61]With regard to whether there has been scandalous, unreasonable or vexatious conduct, there must be a conclusion by the tribunal not simply that a party has behaved scandalously, unreasonably or vexatiously but that the proceedings have been conducted by or on their behalf in such a manner.

[62]'Scandalous', was considered by the Court of Appeal in Bennett v Southwark

2002 IRLR 407

. It is not a synonym for 'shocking' but embraces 'the misuse of the privilege of legal process in order to vilify others', and 'giving gratuitous insult to the court in the course of such process'. The Court of Appeal noted the claimant had been 'difficult, querulous and uncooperative in many respects' but was not prepared to assume that this met the definition.

[63]'Vexatious' can include anything that is an abuse of process.

[64]The second factor that must be considered if scandalous, unreasonable or vexatious conduct of proceedings has been found, is whether a fair hearing is still possible. When striking out a party's case, the Tribunal must explain why a fair hearing is no longer possible or why the case falls within the exceptional circumstance where the fairness of the trial is not a consideration

[65]In Bolch v Chipman

[2004] IRLR 140

the Employment Appeal Tribunal described the reasoning behind the 'no fair trial' factor by stating that a striking out order is not, first and foremost, a tool to punish scandalous, unreasonable or vexatious conduct of proceedings. Rather, it is to protect the other party (and the integrity of the judicial system) from such behaviour which results in it no longer being possible to do justice. A party that acts scandalously, unreasonably or vexatiously in the conduct of proceedings should not thereby gain an advantage of any kind in the judicial process. The court in Bolch approved the High Court decision of Logicrose Ltd v Southend United [1988] 5 March, in which Millett J had observed that the deliberate and successful suppression of a material document 'was a serious abuse of the process of the court and might well merit the exclusion of the offender from all participation in the trial' because it rendered a fair trial impossible, but that if the threat of striking out the claim or defence resulted in the production of the missing document, this might require the lifting of that strike out threat. Once the document had been produced there should only be a strike out 'if, despite its production, there remained a real risk that justice could not be done. That might be the case if it was no longer possible to remedy the consequences of the document's suppression despite its production', adding 'It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, however deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory'.

[66]The third factor which must be considered is that of proportionality. Simler P (as she then was) in Arriva London North v Maseya

UKEAT/0096/16

[67]In Blockbuster the Court of Appeal (at paragraph 21) said: ''it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing'.'

[68]In Blockbuster the claimant had in breach of orders failed to give adequate particulars of his claim, refused to allow the respondent to photocopy his documents, attended on the first morning of the hearing with unseen documents and made changes to his witness statement without prior notice to the respondent. The Court of Appeal upheld the Appeal Tribunal’s decision that the Tribunal had been wrong to strike out the claim. While acknowledging that the claimant had been 'difficult, querulous and uncooperative', the Court of Appeal said that the courts are open to the difficult as well as the compliant.

[69]The proportionality consideration requires an assessment by the Tribunal of any alternative, lesser sanctions, for the conduct in question and a balance requires to be struck.

[70]In general, the Employment Appeal Tribunal has held that the striking out process requires a two-stage test in HM Prison Service v Dolby

[2003] IRLR 694

, and in Hassan v Tesco

UKEAT/0098/16

. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is 'a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit.

[71]Striking out is not automatic and care is needed given the draconian nature. In Hasan the Employment Appeal Tribunal held that relevant factors in the exercise of that discretion that might have weighed heavily included the early stage of the proceedings, the ability to direct that further and better particulars of each claim be specified, and the absence of any application on the part of the respondent for striking out.

[72]Ultimately a Tribunal should exercise caution before striking out a claim, particularly where facts are in dispute and it is possible to hear evidence to determine the issues. Law on without prejudice communications

[73]In general, documents prepared for negotiations, whether or not specifically written without prejudice, are protected from recovery and being relied upon but, in Unilever v Procter & Gamble the court noted that there is an exception if not allowing reliance on the material would ‘act as a cloak for perjury, blackmail or other unambiguous impropriety’, an expression used in an earlier case. The test is one of unambiguous impropriety.

[74]Having reviewed the authorities which considered the ‘unambiguous impropriety’ exception, the court in Ocean on Land Technology (UK) Ltd v Land

[2024] EWHC 396

said that consideration should be given to where the without prejudice rule is being used to cloak wholly improper conduct (for example, the making of unambiguously improper threats, such as to commence criminal proceedings and seeking to conceal that fact from the court). The court said: ‘Conduct or statements which do not go beyond the bounds of what is to be expected in negotiation are not within the scope of the exception’. Decision on strike out

[75]Having case managed this case and conducted the preliminary hearings I was able to assess the application within the context of the conduct of the litigation. I considered the respondent’s application carefully in light of the authorities and considered each of the detailed submissions of both parties. The facts were not in dispute given the claimant accepted that he had sent the communications on which the application was based.

[76]Firstly I considered that the material relied upon by the respondent in support of their application was material that I was entitled to take into account. The respondent’s agent was concerned that the way in which the claimant had conducted himself and this litigation was unreasonable and vexatious and went beyond being reasonable and professional. It was necessary to consider the terms of the correspondence to assess the position. I did not take into account the correspondence that was genuinely sent with a view to settlement of the claim and considered only correspondence that fell within the exception set out above for the purposes of considering the application. It is relevant that the claimant accepted he had sent each of the communications (which related to personal issues pertaining to the respondent or their agent).

[77]Next I considered the specific conduct relied upon. The respondent’s position was that there were discriminatory remarks from the claimant and threatening and intimidating behaviours and blackmail and this was commonplace and repeated behaviour. I can, however, only consider the specific correspondence to which my attention has been brought. It is understood that the correspondence relied upon is only a snapshot of the type of correspondence sent and I do not doubt that over 96 emails were sent from the claimant. I cannot, however, determine that the claimant’ actions were, from that alone, unreasonable. The application is therefore determined on the basis of the specific communications to which I was referred in context of the conduct of the litigation which I have managed. The claimant’s actions

[78]I then considered the specific actions of the claimant to which my attention was drawn.

[79]Firstly I considered the email of 26 September 2023 when the claimant referred to the respondent’s agent as a “Sikh lady from Kent”. I found that description to be inappropriate and discriminatory. It was unprofessional. The claimant’s submission that this email was historic did not detract from the seriousness of his conduct.

[80]Next I considered the communication of 24 January 2024. The respondent alleged this communication was sent by the claimant and ran to 32 pages with much of the material being irrelevant containing many inaccuracies. The claimant denied any such document was sent.

[81]The respondent had not included any document dated 24 January 2024 in the productions relied upon. Having checked the Tribunal file, the claimant sent a lengthy document, running to 52 numbered paragraphs (with pictures) on 4 January 2024 which is the document referred to. The paragraph numbers referred to match the references in that document.

[82]I considered the file and the email the claimant sent was in response to the respondent’s agent’s email of the same date. The respondent’s agent had been asked to comment upon the claimant’s email of 19 December where he had included a list of issues and alleged the respondent’s agent was not speaking with him.

[83]The respondent’s agent noted that “the claimant consistently exhibits a pattern whereby each communication results in an extensive, repetitive, and reworded presentation of the same complaint, often with the intent of advancing or introducing new arguments. The Tribunal has directly experienced this in their own correspondence with the claimant. It is asserted that these actions are intentional on the claimant's part, demonstrating a purposeful failure to confine matters strictly to those relevant to his case. Only this week, the claimant has engaged in direct communication with senior counsel, the respondent's in-house solicitor, and myself, utilizing unprofessional and inappropriate emails that are more of a nuisance and bear absolutely no relevance to his claim. Consequently and regretfully, communication with the claimant is deliberately limited to issues of substance only, given that initial attempts to agree on a list of issues were hindered by the claimant consistently veering away from the pertinent matters as the initial draft list of issues was first sent to the claimant on the 19th October 2023, he was granted further time to respond to the proposed list but ultimately the claimant refused to agree its content and in his usual manner the communications he did have were diverted to other matters. Whilst it is wholly recognised that it is less than ideal, the respondent contends that finalizing an agreed list of issues at the outset of the hearing may be the most prudent course of action.”

[84]The claimant’s response to that email was voluminous and detailed. No response was needed but his response was personal and detailed, with material about the respondent’s agent’s business and analysis the claimant had undertaken. The response contained many inaccuracies and had limited relevant material. The respondent’s agent’s criticisms made of the claimant’s detailed communication were, by and large, accurate.

[85]Thirdly I considered the email of 11 January 2024 in which the claimant alleged he was asking Lady Gaga to appear in his case. There was also an indirect threat to the respondent’s business by referring to “companies getting cancelled” which refers to the impact negative publicity can have. The claimant also made reference to the “my good friend the Sheik” whom he was offering to pay to raise awareness. His email ended with a note of how serious the claimant was about matters.

[86]This email was clearly unnecessary and lacking in professionalism, which the claimant accepted. It included an indirect threat to the respondent’s business. The claimant apologised for that email, recognising it was inappropriate and unprofessional.

[87]I then considered the email the claimant sent on 1 March 2024 (headed “Withdraw your strike out application”) in which he threatened to contact the police about allegations against the respondent’s agent unless the strike out application was withdrawn. The respondent’s agent denied any wrongdoing whatsoever. The claimant was making threats about the respondent’s agent’s organisation that were related to the case in an attempt to influence how the respondent’s agent conducts their defence. It was a personal attack on the respondent’s agent. That was unreasonable conduct of the claimant.

[88]Fifthly I considered the email of 3 March 2024 headed “I pray for you”. This was a religious email sent to the respondent’s agent. The claimant alleged the devil was controlling the agent. The email was entirely inappropriate and unprofessional. There was no reason why that should have been sent and could be regarded as a veiled threat. Again the claimant apologised for this email which he recognised was entirely inappropriate. He alleged it was a “gesture of peace” which was difficult to understand given the reference to the devil and the insulation contained within it.

[89]I took into account the claimant’s submissions. The claimant himself repeated my previous observation that the claimant was intelligent and articulate. He is clearly able of deciding what is appropriate and what is not. He is clearly able to decide what communications are professional and which are not. He makes a choice when he sends the emails and communications he does.

[90]The claimant also knows and understands the Tribunal Rules and the authorities (and there was no evidence he did not know of the position when he decided to send the communications). He has been able to set these out clearly and in detail and has previously responses to a strike out application. The claimant knew that where a party conducts their case in a way which is scandalous, unreasonable or vexatious, the claim (or response) may be struck out.

[91]The claimant had not provided any medical evidence but asserted that his mental health had, at least in part, been responsible for some of his communications. The claimant’s mental health has been fully taken into account. It is also relevant the claimant confirmed that he is able to control matters and would take a deep breath before sending any communication and if there was a risk of it being unprofessional or unnecessary, would seek the view of someone else or wait until the next day before sending. Despite previous warnings, he had not done this.

[92]I also take into account the apology that the claimant issued and the undertaken he has given not to issue any further communications which could be regarded as inappropriate or professional.

[93]I considered the respondent’s agent’s response to that and in particular the allegation that the claimant’s apology was insincere but I can only proceed on the basis of the information before it, but does note the seriousness of the matter and the conduct of the claimant to date.

[94]It is relevant to bear in mind the directions that have already been issued to both parties, and in particular the claimant, as to the requirement to work with the respondent’s agent to ensure matters can progress. Those warnings had gone unheeded given the amount of correspondence issued and the amount of irrelevant and inaccurate material the claimant has submitted. Repeated warnings have been issued to the claimant to ensure his communications were professional and that the parties worked together. The claimant has not done so and opted for personal attacks on the respondent’s agent and indirect challenges to the respondent if the claim proceeds.

[95]I take into account the fact the claimant has repeated the behaviour on a number of occasions despite those warnings. The claimant knew how he had to conduct himself but chose to respond in a personal way. I also take into account the risk set out by the respondent’s agent that the claimant could continue to issue lengthy emails of a personal nature or containing irrelevant or inaccurate information despite warnings not to do so. The fact the emails amount to personal attacks on the respondent’s agent and the impact this has had have been placed in the balance.

[96]It is an important consideration that the claimant is not legally represented, albeit he is an articulate and capable person, clearly able to understand complex legal issues and present cogent arguments (and case law). His most recent correspondence is noted but it is also relevant that the claimant considers his conduct in part to be justified because of the respondent’s agent and the claimant firmly believes the respondent’s agent is engaged in some personal campaign against the claimant. I have seen no evidence that could reasonably support that conclusion and the reality is that the respondent’s agent has genuine concern about the claimant’s approach and comments made, particularly the deeply personal and offensive remarks.

[97]Despite the claimant’s apology it is clear that he believes his approach has in part been caused by the respondent’s agent whom he believes has personal animosity towards the claimant, which the claimant considers justifies his detailed and personal responses. While accepting they are unprofessional and entirely unnecessary, he does not see the impact his communications have had, despite warnings. He has also repeated the behaviour despite knowing it was unwanted.

[98]Finally I note shortly following issuing the apology he sent a further email to the respondent with regard to settlement. The respondent’s position has been clear throughout this case that no settlement was being considered and this was a case that required to be determined. However, the email sent by the claimant was clearly sent on a without prejudice basis and is not itself taken into account. The respondent had made its position with regard to settlement clear, a matter ignored by the claimant and the claimant continues to send emails to the respondent as to his demands. Claimant’s conduct unreasonable and scandalous

[99]I considered the material to which its attention was drawn and I am satisfied that the manner in which the proceedings have been conducted by the claimant has been unreasonable and scandalous. The correspondence is (in parts) scandalous because it is clearly misusing the privilege of legal process to vilify the respondent’s agent and is, in places, gratuitously insulting and personal. The claimant’s approach has become personal and offensive. There was no justification for the sending of the personal and focussed communications with regard to the respondent’s agent (which are entirely unrelated to the core issues of the case).

[100]The communication of 26 September 2023 was discriminatory and related to the claimant’s view of the respondent’s agent’s religion. It was entirely unwarranted, demeaning and offensive. It had been issued despite the clear warnings at the preliminary hearing to focus on germane matters.

[101]The claimant’s detailed submission to the respondent of 4 January 2024 was by and large irrelevant and focussed on the respondent’s agent’s business. It was entirely unnecessary and a detailed personal attack on the respondent’s agent’s business. It had no relevance to the issues of the case.

[102]The claimant’s communication of 4 January 2024 contained an indirect threat to the respondent’s business (about being cancelled), which is not an unreasonable interpretation of the claimant’s communication.

[103]The email of 1 March 2024 sought to persuade the respondent’s agent to withdraw their application (in relation to strike out of the case) because the claimant said if the respondent’s agent did not do so, the claimant would contact the police about matters relating to the respondent’s business (which were not relevant to the case). That was an attempt to influence how the respondent’s agent conducts the respondent’s case and cause them concern.

[104]Finally the claimant’s email of 3 March 2024 suggesting the respondent’s agent was being controlled by the devil and that this somehow amounted to a gesture of peace was offensive and personal.

[105]The claimant admitted having sent the communications and recognised they were offensive and apologised, both at the Hearing and subsequently in writing. The correspondence referred to above was plainly inappropriate.

[106]The claimant has misused the privilege of legal process to vilify the respondent’s agent and the business being conducted. The claimant has used the process to issue gratuitous insults and personally offensive comments. The claimant has tried to persuade the respondent’s agent to conduct the respondent’s case in a way that the claimant seeks by reference to matters entirely unconnected to the case. The claimant had gone beyond being 'difficult, querulous and uncooperative' and his conduct objectively viewed, taken in context of the communications of both parties and the issues in this case, is scandalous and unreasonable.

[107]The claimant’s behaviour is such as to entitle me to consider whether or not strike out of his claims should be ordered given the way in which he has chosen to conduct his claim and engage with the respondent’s agent despite warnings. Is a fair hearing still possible

[108]In light of the foregoing I then considered whether a fair hearing was still possible. The respondent’s agent’s genuine and justified concern was that the claimant would continue to act as he had previously done, despite warnings and repeated cautions to act appropriately. The respondent’s agent is concerned about the personal nature of the communication and the content, tone and insinuation of the claimant’s approach, particularly around the implied threats if settlement that suits the claimant is not forthcoming. There is no doubt that the respondent’s agent genuinely feels concerned and there are genuine concerns that a fair hearing is at risk. It is clear that the threats were not just to the respondent’s agent but to the respondent.

[109]It is important the claimant is not given an unfair advantage because of his inappropriate actions and unreasonable approach in the way he has conducted his case. It is essential the parties act fairly towards each other to ensure a fair hearing is achieved. That is a warning that has been issued before. The claimant understood the warning and clearly understood the impact of unreasonable behaviour, having himself sought strike out of the respondent’s case because of his (unfounded) perception of the respondent’s agent’s behaviour being unreasonable. The claimant had been warned as to the importance of keeping his communications fair and succinct. He has chosen to ignore those warnings and issue communications directed personally at the respondent’s agent.

[110]I considered this issue very carefully as there is a real risk of repetition and real risk the claimant would revert to how he has acted throughout this case, thereby seeking an unfair advantage over the respondent. The claimant’s conduct and the context in which it occurred justifies a conclusion that a fair hearing is not possible. This is not a conclusion reached easily but one after considerable reflection recognising how serious strike out is upon the claimant. Equally I take into account the serious and long lasting impact of the claimant’s conduct upon the respondent’s agent and the respondent and the justified fear of repetition and the likely impact upon the future conduct of the case.

[111]This case falls within the exceptional situations where the risk is too great and that the risk of repetition of the claimant’s unacceptable behaviour impacts upon the respondent’s fair defence of the claim. Previous warnings have gone unheeded and the claimant made calculated (but ill judged) decisions to send deeply offensive and personal communications. Proportionality

[112]This led me to the final consideration in deciding whether or not to strike out the claims due to the claimant’s conduct and the risk of a fair hearing not being possible. I am required to consider the proportionality of sanction. Even if a party has acted unreasonably and even if a fair hearing is not possible, I must still consider the proportionality of striking out and whether a less draconian sanction is possible. Strike out of the claim would result in the matter ending without an adjudication of the issues and is of the utmost seriousness. I have borne

[113]Strike out is not about penalising a party for their behaviour. It is to protect the other party (and the integrity of the judicial system) from behaviour which results in it no longer being possible to do justice. The court process should not be used to seek to gain unfair advantage. I considered the authorities in this area carefully in light of the claimant’s admitted conduct.

[114]I considered the alternative and lesser sanctions in this case and balanced all the relevant factors. The claimant had already been told that his communications required to be fair on a number of occasions. He understood that warning. As has been said before, the claimant is clearly intelligent and capable of understanding complex issues and the applicable legal principles and understands the Tribunal Rules, including the provisions as to strike out (on which he has himself relied). The claimant knows the Rules and consequences of unreasonable behaviour.

[115]While the claimant has relied in part on his mental health, he accepted that his mental health is not a bar to the claimant acting properly (and choosing to do so). The fact the claimant is not legally represented is also a consideration and the passion with which he views his case (and the complexity of his case). But the claimant’s actions must be viewed in context of the warnings he had been given, his knowledge of the Rules and the deeply personal and offensive nature of his communications and their impact.

[116]I take into account the apology the claimant issued and his undertaking not to send any more offensive communications and note the respondent’s justified concern of a risk of repetition in light of past conduct and apologies. I also take into account the period over which the claimant’s conduct took place and the claimant’s frustration as to how he perceived the respondent’s agent’s actions were impacting upon him.

[117]I also took into account that most of the behaviour by the claimant was towards the respondent’s agent who ought to be capable of robustly progressing litigation. That has to be balanced with the impact of the behaviour particularly on the ability of the respondent to fairly defend the claim.

[118]I considered what other proportionate ways existed to manage the issues arising. The claimant had not suggested any specific alternatives. Other than saying the conduct would not be repeated, and referring to his view of the personal nature of the respondent’s agent’s approach, no specific alternatives were offered. The courts are open to all parties and it is important to recognise all litigants are entitled to proceed with their claims, including those very passionate about their cases and even if acting in challenging ways. However, parties must act in a fair manner towards each other.

[119]I considered whether further robust case management could ensure a fair hearing was possible, which was in essence what the claimant was suggesting, albeit with no specific suggestions as to how a fair hearing would now become possible. I concluded that given the claimant’s conduct in this case and my experience in having case managed this case, it was more likely than not that no amount of further robust case management would avoid a repetition of the approach the claimant has taken and the behaviour the claimant has shown in conducting his case. When the claimant did not secure what he believed he was due by way of a response or outcome, his response was to embark on personal attacks and seek to influence the respondent’s agent’s conduct of the respondent’s case by referring to issues not relating to the case and usually deeply personal matters pertaining to the respondent’s agent. The attempts made during the progress of this case to help the parties focus matters and work together had not worked.

[120]I was not satisfied the claimant’s undertaking to change his behaviour and approach would genuinely alter how the claimant would conduct his case as the hearing approached and the pressure grew. I considered that there was a very real risk that the claimant would continue to perceive the respondent’s agent of being unreasonable (because the claimant’s position was not accepted) and there would be a very real risk that the claimant’s perception would result in him making his responses deeply personal and offensive to whomever was conducting the respondent’s case, thereby seeking to influence how the respondent’s agent conduct their defence and gain an (unfair) advantage. That was how the claimant had conducted his case despite having been reminded of(1) the need to work with the respondent and

(2) the overriding objective and despite the claimant’s knowledge of the Rules as to the effect of unreasonable conduct.

[121]I considered whether an award of expenses could ameliorate the concerns in this case given the claimant’s clear (and accepted) unreasonable conduct and ensure the hearing could proceed, but regrettably I concluded after considerable reflection that the risk of repetition of the claimant’s unreasonable conduct was simply too great and that the risk of repetition of the claimant’s scandalous and unreasonable conduct was real. I did not consider that an award of expenses would alter the position such as to ensure, so far as possible, a fair hearing could take place. Taking a step back

[122]I took a step back to assess objectively what the claimant had done (and accepted he had done), the context in which his conduct took place in light of his mitigation and explanation and when the acts happened. Having reflected upon the conduct and each of the points the claimant has made, I have concluded, after considerable reflection, that the manner in which the claimant conducted his case was scandalous and unreasonable and that the fact warnings have gone unheeded gives no confidence that the claimant’s undertaking not to repeat the behaviour would lead to any change in approach. I concluded that a fair hearing is not possible.

[123]I have balanced all of the relevant factors and sought to identify whether any reasonable alternatives would be justified but concluded that a proportionate (and fair and just approach) is to strike out the claim, recognising the seriousness of such a decision.

[124]On balance, and having assessed all the facts together with the applicable law and having carefully considered each of the detailed points made by the claimant, I have concluded that it is just and fair that the claim be struck out as a result of the manner in which the proceedings have been conducted by him, which has been scandalous and unreasonable. The claim is struck out.