Laing v Department Of Social Security & Anor [1997] UKEAT 1004_96_2901

EAT

Laing v Department Of Social Security & Anor

[1997] UKEAT 1004_96_2901 · 1997-01-29

JUDGE PETER CLARK :

The 1993 Industrial Tribunal Rules of Procedure introduced for the first time a power in industrial tribunals to strike out an originating application or notice of appearance on the grounds that the manner in which a party conducted the proceedings before the Tribunal was scandalous, frivolous or vexatious (Rule 13(2)(e)). That addition to the rules was designed to overcome a lacuna in the previous procedural rules, which were interpreted by this appeal tribunal as leaving an industrial tribunal powerless to strike out proceedings in the face of misconduct by a party at the hearing. See Kelly v Ingersoll-Rand Co Ltd

[1982] ICR 476

and O'Keefe v Southampton City Council

[1988] ICR 419

The power was invoked by the Industrial Tribunal sitting at Manchester which heard this Appellant's complaint of race and sex discrimination against his employer, the Department of Social Security and one of its employees, David Hillier, over six working days in February and March 1996. Against the decision to strike out the Appellant now appeals.

The course which the hearing took is chronicled in detail by the Tribunal in its extended reasons dated 19 July 1996. It is unnecessary to repeat the detail of the progress of the case in this judgment. The facts speak for themselves. The hearing was unnecessarily protracted due to unmeritorious procedural applications by the Appellant for witness orders and further pleadings; over the bundle of documents and simply because the Appellant did not turn up on time.

Finally, on the sixth day, according to the Tribunal's reasons, the Appellant announced that he would take no further part in the proceedings. At this stage Counsel for the Respondents applied for the case to be struck out under Rule 13(2)(e). The matter was adjourned for 40 minutes so that the parties could consider their positions, thus giving the Appellant proper notice under Rule 13(3). The Appellant was adamant, say the Tribunal, he did not want an adjournment, he was not prepared to continue to take part in the proceedings.

The Tribunal record that the Appellant told them that he could not continue due to health problems and he no longer felt able to conduct his case, even if an adjournment was granted.

The Tribunal concluded that if the case did continue in his absence it would simply result in further cost to the Respondent (whose subsequent costs application failed on the grounds of the Appellant's means, not on its merits) with no realistic prospect of his succeeding in his complaint. For those reasons, the originating application was struck out.

Now there is an appeal before us. Mr Laing contends that the Tribunal's decision to strike out the originating application under rule 13(2)(e) was perverse in the sense that no reasonable industrial tribunal properly directing itself would have taken that course. In developing that submission he first of all challenges the accuracy of what is recorded by the Chairman in the Tribunal's reasons. He does not accept, as appears at paragraph 25, the observation that:

"The Chairman then sought to clarify the applicant's intention and the applicant stated that he was not prepared to withdraw his claim, but did not intend to attend or take any further part in the hearing ..."

and again at paragraph 28 where the Chairman says:

"The applicant was expressly asked by the Chairman if there would be any prospect of his continuing with the hearing if the matter were adjourned to a future date, and he stated unequivocally that he would not change his mind in any circumstances, and that he was not prepared to continue with this hearing, however long an adjournment was granted by the Tribunal. Further, he did not require any further time to consider his position."

We have no hesitation in accepting the account which is carefully set out in the Tribunal's reasons. We are not prepared to enter into a debate as to precisely what was said below. That is the function of the Industrial Tribunal Chairman; to record what is said and subsequently to put it into the form of the decision.

Secondly, Mr Laing says that the Tribunal failed to take proper account of his medical condition and in support of that submission he has put before us a letter from Dr Sandler of the Ailsa Craig Medical Centre, Manchester, dated 28 January 1997. That doctor was not attending the Appellant in March of 1996. His letter reads:

"On reading through his previous GP's medical notes I can confirm that Mr Laing was being certified as unfit for work because of nervous debility from 7th Feb 96 and before this was receiving certificates from Dr Galati in 1995 for depression.

Was apparently unfit for work until July 1996."

That letter takes us no further forward. Not only was Dr Sandler not the Appellant's doctor in February and March 1996 but it appears that at that time his then general practitioner was certifying him unfit for work but, plainly, the Appellant felt able to attend the Tribunal and conduct his own case on the dates in February and March, when the hearing took place. The question of his medical condition was clearly raised, we see from paragraph 30 of the Tribunal's reasons. But we do not understand the Tribunal to have struck the case out in disregard of his state of health, on the contrary they were prepared to adjourn the hearing to a future date, however long away, to allow him to recover his composure. Nevertheless, the Tribunal record, he was adamant that he would not resume the hearing.

In these circumstances, far from this being a perverse decision on the part of the Tribunal, having looked at the course of these proceedings, we think this was a perfectly proper use of the new provision in rule 13(2)(e). We see no arguable points in this appeal to go to a full appeal hearing and we shall dismiss the appeal.