EAT/0813/01/MAA MR S E CARTER v HI-WAY EXPRESS [2003] UKEAT 0813_01_1911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0813_01_1911Case No Appeal Nos. EAT/0813/01/MAA EAT/0892/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/0813/01/MAA MR S E CARTERAPPELLANTHI-WAY EXPRESSRESPONDENTEAT/0892/01/MAA MR C R HOPSONAPPELLANTHI-WAY EXPRESSRESPONDENT
Before
His Honour Judge J BurkeDate 19 November 2003
[1]APPEARANCES For the Appellants MR J ASHWORTH (of Counsel) Instructed by: Messrs Chadwick Lawrence Solicitors 29/31 Commercial Street Morley Leeds LS27 8HX For the Respondent MR R ALLEN QC (of Counsel) Instructed by: Messrs Peter Levine Solicitors 6-8 York Place Leeds LS1 2DS HIS HONOUR JUDGE J BURKE QC The facts These are appeals by Mr S Carter and Mr C R Hopson against the decision of the Employment Tribunal sitting at Leeds, chaired by Mr Latham and sent to the parties with Extended Reasons on 28 June 2001, that the applications to the Employment Tribunal of both Appellants be struck out. Both appeals have been heard together, pursuant to an Order made by the Employment Appeal Tribunal on 15 February 2002. The Appellants have been jointly represented by Mr Jonathan Ashworth of Counsel; the Respondents, Hi-Way Express ("Hi-Way") were represented at the original hearing before us on 17 September 2002, by Ms Laura Cox QC, as she then was; the hearing of the appeal was not concluded on that day; during the unfortunately lengthy period which passed before all parties could be present before the same division of the Employment Appeal Tribunal, Ms Cox QC became a High Court Judge and Mr Robin Allen QC took over as Counsel for Hi-Way.[2]Mr S Carter and Mr Hopson were both employed by Hi-Way at their premises in Wakefield, Yorkshire. On 14 March 2000 solicitors acting on behalf of both presented Originating Applications to the Employment Tribunal. Mr Carter's application alleged that he had been constructively dismissed at the end of February 2000 and had been the victim of direct race discrimination arising from his Irish background. Mr Hopson's application alleged that he too had been constructively dismissed at the end of February 2000. A third Originating Application, on behalf of Mr B Carter, Mr S Carter's brother, was presented on 27 March 2000; Mr B Carter complained of unfair dismissal, direct race discrimination and breach of contract; he subsequently withdrew his unfair dismissal claim. Hi-Way's answers to the applications of Mr S Carter and Mr Hopson were in similar terms; they denied constructive dismissal; they alleged that each Applicant was at the material time under investigation for serious misconduct and claimed that their complaints represented attempts by them to avoid answering the allegations made against them and to avoid disciplinary action and were without merit. In the case of Mr B Carter Hi-Way alleged that he had been employed for six months only and that his complaint was an attempt to "piggy back" on his brother's complaint.[3]On 11 April 2000 the Tribunal issued a standard letter, ordering in each case that witness statements of all witnesses upon whose evidence the parties intended to rely should be exchanged at the same time, no less than ten days before the hearing date. At a directions hearing on 18 January 2001, attended by Mr Hopson and Mr B Carter in person and by a solicitor on behalf of Mr S Carter, the Tribunal ordered that all three cases should be heard together over a period of five days starting on Monday 21 May 2001. The Tribunal was informed that the Applicants, or one or more of them, might wish to rely upon a tape recording or tape recordings of certain matters and ordered that, if any reliance was to be placed on any tape recording, a copy of any relevant tape together with a transcript thereof was to be delivered to Hi-Way's solicitors within twenty eight days i.e. by 15 February. All of the orders made on that day were, according to the Tribunal's subsequent Decision, sent to the parties on 22 January 2001, made by consent. It appears, from a letter written by Hi-Way's solicitors to Mr S Carter dated 19 April 2001, that at the directions hearing on 18 January of that year the Tribunal ordered simultaneous exchange of witness statements on 23 April; although no order to that effect is mentioned in the Tribunal's Decision, that letter acted as a clear reminder of the Applicants' obligations in relation to witness statements.[4]Despite reminders from Hi-Way's solicitors, Mr S Carter and Mr Hopson did not provide any witness statements of their own evidence or of any other witness; Hi-Way sent their witness statements to them unilaterally. Only Mr S Carter and Mr Hopson sought to rely on tape recordings; some transcripts were sent to Hi-Way's solicitors, although not by the date prescribed by the Tribunal's Order; but no copies of any tapes were provided. We will describe later how, at the hearing which has led to this appeal, Mr Hopson told the Tribunal that there were further tapes on which he wished to rely; neither transcripts nor copies of those further tapes were ever provided.[5]On 16 May 2001 a letter was sent to the Tribunal bearing Mr S Carter's letter heading and, from the form of the letter, sent apparently on behalf of all three Applicants. The letter requested a postponement of the hearing fixed to start on the following Monday, giving as the reason the assertion that Mr S Carter had suffered injury to his shoulder, arm and back which caused him:
"great suffering when remaining either stood or seated for more than a couple of minutes at a time"
. A medical certificate accompanied the letter which, according to the letter, was intended to "validate the injury". That certificate did not suggest that Mr S Carter was unfit to attend the Tribunal; the stated diagnosis was illegible; the date was unclear but was, assuming that the certificate was sent with the letter, probably 14 or possibly 11 May. It seems that the letter and certificate were sent after Mr S Carter had orally sought a postponement of the hearing and was, no doubt, told to pursue his application in writing.[6]The letter made two further points. Firstly it said:
"Also due to the applicants not receiving the respondents statements until today (16 th May) it has been noted that there are a number of crucial omitted statements which would be detrimental to the respondents defence but provide facts for the applicants case, and to this end a number of further witness orders will be requested from the chairmen of the tribunal these being vital in effect that they will, we feel prove beyond doubt to the hearing the validity of the applicants claims."
The true position was that no witness statements had been provided by the Applicants in compliance with the Tribunal's order or at all and Hi-Way's solicitors had eventually provided their witness statements unilaterally; no witness order had ever been sought before by any of the employees, nor was any such order sought after this letter.[7]Secondly, the letter said:
"Furthermore the respondent is attempting to place hurdles in the way of the applicants supporting evidence the most important of which is taped evidence we feel clearly shows the extent of the respondents lack of duty to the applicants. This evidence has been offered to the respondents representative by means of transcripts and the offer of a listening session."
The true position was that Mr S Carter and Mr Hopson had agreed to the orders as to the disclosure of transcripts and the supply of copies of the tapes on which they wanted to rely but had not fully complied with those orders and, in Mr Hopson's case, wished to rely on further tapes in respect of which there had not even been partial compliance. Yet they were seeking to criticise the conduct of Hi-Way or their representatives.[8]On the same day, having been informed by the Tribunal of Mr S Carter's oral request for an adjournment, Hi-Way's solicitors wrote to the Tribunal pointing out that Mr Carter was that week attending Leeds Crown Court where he was facing charges of grievous bodily harm and that his trial was expected to continue into the following week; they said that they had brought the difficulties that this might cause to the Tribunal to the attention of Mr Carter's previous representative and, when he ceased to act for Mr Carter, to Mr Carter himself and had advised Mr Carter openly to raise with the Tribunal the prospect of his being unavailable.[9]Although Mr Carter was present at the Tribunal building earlier on the morning of 21 May, when the hearing started on that day he was no longer present. The Tribunal learned that he was, indeed, attending the Crown Court where his trial was continuing; The Chairman's Notes confirm that, at the outset, the Tribunal confirmed with Mrs Carter, Mr Carter's wife, that she was representing her husband and was authorised to do so. Mr Hopson was present but unrepresented. Mr B Carter was represented by Mr Emsley, his trade union representative.[10]Hi-Way's solicitor then made an application to strike out the claims of all three Applicants on the basis(a) of their failure to comply with the Tribunal's directions as to witness statements;(b) of their failure to comply with the Tribunal's directions as to tape recordings;(c) on the basis of their conduct in seeking an adjournment for reasons which were plainly false; it was submitted that the Applicants had deliberately set out to mislead the Tribunal; Mr S Carter was attending and was fit to attend the Crown Court; he had been advised to seek an adjournment for that reason but had failed to do so; the conduct of all three Applicants was scandalous, vexatious and unreasonable.[11]Mrs Carter confirmed to the Tribunal that her husband was, indeed, attending the Crown Court, was physically able to do so and was physically able to attend the Tribunal. She said she was not aware of the reasons why her husband had not told the Tribunal about the Crown Court proceedings. She said that they had no witness statements and did not know whether there had been any exchange of witness statements.[12]Mr Hopson confirmed that he was aware of the letter of 16 May which he accepted had been written on his behalf and with his authority. He said that he believed that Mr S Carter could attend the Tribunal, subject only to the Crown Court proceedings. He acknowledged that he had refused to hand over the tape recordings and said that he believed but could not confirm that there had been an exchange of witness statements.[13]In contrast Mr Emsley on behalf of Mr B Carter said that his client had not seen and was not a party to the letter of 16 May. The Tribunal's Decision[14]The Tribunal decided that the claims of Mr S Carter and Mr Hopson should be struck out but that the claim of Mr B Carter should be allowed to proceed. They did so in reliance on Rule 4(7) and Rule 13)2)(e) Schedule 1 on the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, which still applied at the relevant time. In paragraph 16 of their decision they set out their reasons in these terms:
"With regard to the determination the first and second applicants be struck out, the reasons for the tribunal's decisions were:- (a) Mr Hopson, the second applicant, admitted knowledge of the letter of 16 May 2001 and that its contents were written with his authority and, therefore, he was responsible with the first applicant for that letter and its contents. (b) Neither of the two applicants informed the tribunal of the correct position i.e. with regard to the Crown Court proceedings which were, in reality, the real reason for the applications for postponement. (c) It was admitted by the second applicant and by the first applicant's wife, his representative, that the first applicant was physically able to attend this tribunal and there were no medical reasons why he could not do so. Although he had been certified not fit for work he was not certified as not fit to attend the Crown Court or this tribunal and indeed, had been attending the Crown Court the previous week; was attending the Crown Court this morning; and had been present at the tribunal before the time fixed for this hearing on the morning of the first day. (d) the third applicant's name had been attached to the letter of 16 May 2001 without his knowledge and authority, an action that could be taken to be that of the first applicant only. (e) Neither the first or second applicants complied with the specific directions of the tribunal with regard to the tape recordings and the transcripts, nor indeed had gone on to comply with the arrangements with regard to the exchange of witness statements. (f) There was no satisfactory explanation as to why the tribunal's directions had not properly been complied with and yet confirmation was given to this tribunal that they had fully understood and knew the reasons for the requirement made in the directions, particularly with regard to the tape recordings. (g) There was prejudice to the respondents by non-compliance with the directions and they were not properly in a position to be able to know the applicants' contentions and what were going to be put to them."
The grounds of appeal[15]Mr Ashworth has put these appeals forward, in the case of Mr S Carter, on the three grounds set out in his Amended Notice of Appeal which were the grounds permitted at the preliminary hearing of his appeal to go forward to a full hearing and, in the case of Mr Hopson, on the same grounds and on one further ground, again as set out in his Amended Notice of Appeal, those being in his case too the grounds on which he was permitted to proceed to a full hearing. The three grounds which are common to both can be summarised as follows:(1) The Tribunal erred in striking out under Rule 4(7) of Schedule 1 to the 1993 Rules in the absence of any written notice to the Appellants giving them an opportunity to show cause why the Tribunal should not strike out their claims for failure to comply with requirements made under Rule 4(1) or 4(3).(2) The striking-out Orders were a disproportionate response to the Appellant's conduct.(3) The Tribunal erred in striking out under Rule 13(2)(e) by failing to consider adequately whether it was appropriate to exercise their power to do so, in the case of Mr S Carter in his absence and without any advance warning and without considering whether he was properly represented by Mrs Carter and in the case of Mr Hopson in the absence of any advance warning.[16]The fourth ground of appeal, in the case of Mr Hopson only, is that the Tribunal were not entitled to hold the letter of 16 May 2001 against him. Rule 4(7)[17]We can dispose of this ground of appeal speedily. Rule 4(7) of Schedule 1 to the 1993 Rules reads as follows:
"(7) If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and where appropriate, direct that a respondent shall be debarred from defending altogether; but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."
There was, in those words, a specific requirement that a Tribunal should not strike out under Rule 4(7) for non compliance with a requirement under Rule 4(1) or Rule 4(3) unless they had sent notice to the party in default giving him an opportunity to show cause why the Tribunal should not do so. In other words, the power to strike out under Rule 4(7) under the 1993 Rules could not be exercised in the absence of such a written notice. The position under Rule 13 was, however, different, as we shall explain below. It is accepted on behalf of Hi-Way that no written notice as required by Rule 4(7) was sent to Mr S Carter or to Mr Hopson and that, therefore, the Tribunal had no power to strike out the application of either under Rule 4(7).[18]However, the Tribunal did not rely, in striking out as they did, on Rule 4(7) alone; they also relied on Rule 13(2)(e); and if the Tribunal were entitled to strike out under that Rule, the fact that they did so also in purported reliance on Rule 4(7) would not enable the Appellant to succeed in these appeals. Accordingly we need say no more about this ground of appeal. It is accepted on all sides that the real focus of this appeal must be on the Tribunal's decision to strike out under Rule 13(3)(e).[19]So that there should be no confusion as to the procedural requirements which now exist, we should draw attention to the fact that, under the 2001 Rules which now apply, Rule 4(7) and Rule 15(3), the successor of Rule 13(3) in the 1993 Rules, have been aligned; under both Rules the Tribunal now has power to strike out a party in default if that party has been given either written notice or has been given an opportunity to show cause orally why the Tribunal should not strike out Rule 13(3)[20]Rule 13(3) provided as follows:
"(3) Before making an order under sub paragraph (d), (e) or (f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."
[21]These words demonstrate that, in a case falling within Rules 13(2)(d)(e) and (f) i.e where there was said to have been scandalous, frivolous or vexatious material in a party's Originating Application or to have been scandalous, frivolous or vexatious conduct on the part of a party or want of prosecution, advance written notice of a strike-out application is not required, despite the serious nature of such an application and the potentially serious consequences, if the Tribunal gives the party against whom the application is made an opportunity to set out orally why a strike-out order should not be made. We are well aware that, sometimes, orders are made on a strike-out application without an oral hearing - in which case a written notice to show cause is, of course, essential; but where, as in this case, there is an oral hearing of the application, such a notice is not required. It is open to a Tribunal to whom an application to strike out is made to hear and decide upon such application there and then as long as the party against whom the strike-out Order is sought, or his or her representative, has had an opportunity to respond orally to the application.[22]Mr Ashworth does not suggest that the Tribunal did not give the three Applicants, or in Mr S Carter's case Mrs Carter on his behalf an opportunity to show cause why their claims should not be struck out. However in Mr S Carter's case, he submits that Mrs Carter was not present at the Tribunal's hearing as Mr Carter's representative in any real sense; by leaving Mrs Carter at the Tribunal because he had to go to the Crown Court, Mr S Carter was not deciding to make her his representative for all matters; she was not in a position to act as more than a spectator trying to help and that that ought to have been appreciated by the Tribunal when, as set out in paragraph 9 of the Tribunal's Decision, she told the Tribunal that she did not know why her husband had not told them about the Crown Court proceedings or whether there had been an exchange of witness statements. Mr Ashworth submitted that only Mr S Carter could explain the letter and his explanation was never put forward to the Tribunal.[23]Not surprisingly we sought, on the first day of argument upon the appeal, to discover from Mr Ashworth what Mr S Carter's explanation was. We were told by Mr Ashworth (but it had not at that stage been confirmed by any witness statement or affidavit from Mr S Carter himself) that he had expected the Crown Court hearing to finish by the end of the previous week, did not think that he could cope with two consecutive Court hearings, and was relying on a real medical condition albeit a condition which did not prevent him from attending the Tribunal. We were told that Mr S Carter claimed to have told someone at the Tribunal on the Friday afternoon that he was expected in the Crown Court on the following Monday. Mr Ashworth accepted that Mr Carter had been "economical with the truth" but submitted that if he had put the true reasons in writing to the Tribunal the Tribunal would have adjourned the hearing or given Mr Carter an opportunity to explain before refusing to adjourn. Because Mrs Carter was not in a position properly to represent her husband, he submitted that the Tribunal in pursuance of their duty to ensure fairness, ought not to have proceeded to strike out his application. Mr Ashworth drew out attention to section 6(1)(b) of the Employment Tribunals Act 1996 which provides that:- "A person may appear before an [employment tribunal] in person or be represented by - … (b) a representative of a trade union or an employers' association" Mrs Carter was not a person, he submitted, who Mr Carter desired to represent him; she was sitting at the back of the room as a spectator until the Tribunal chose to speak to her about her husband's absence. Mr Ashworth further relied, on the first day of argument before us, upon section 6(1) of the Human Rights Act 1998 which provides that it is unlawful for a public authority (including an Employment Tribunal) to act in a way which is incompatible with a Convention right and submitted that the Tribunal had acted in breach of Article 6 of the European Convention of Human Rights, the Article which provides the right to a fair trial. Mr Ashworth supported his sustained argument by reference to various decisions of the European Court of Human Rights which we were asked to consider and did consider at some length.[24]Mr Ashworth further submitted that, in considering the application of these principles to the present case, it was relevant to take into account the fact that Hi-Way were themselves in default of the Order as to witness statements which they did not provide to the Applicants until 15 May and were aware of Mr Carter's difficulties and indeed had been taking video films of him so as to show that he was mobile and physically able to attend the Tribunal.[25]In relation to Mr Hopson, while Mr Ashworth could not, of course, rely upon his absence - for he was present and representing himself - he submitted that the Tribunal ought not to have proceeded to decide upon Hi-Way's application there and then as they did.[26]We had reached the point on the first day of the hearing of these appeals at which Mr Ashworth had developed the submissions we have summarised above when we ran out of time. When we reconvened on 16 May 2003, the picture had changed in three separate respects. Firstly Mr Ashworth wholly withdrew his submissions based on Article 6 of the European Convention of Human Rights; secondly he indicated that he sought additionally to argue that the Tribunal had erred in failing to consider whether a fair trial of the claims was still possible despite Mr S Carter's and Mr Hopson's defaults and actions; and we allowed him so to argue; thirdly he sought leave to put before us an affidavit from Mr S Carter dated 2 May 2003 together with exhibits and an affidavit from Mr Hopson of the same date. Mr Allen QC pointed out that the affidavits raised matters and exhibited documents which had not been before the Tribunal; he did not accept as true the facts which they set out; but he did not object to our seeing them. We have therefore read them and taken them into account; we will have comments to make upon them later in this judgment. Our conclusions[27]It is not in dispute that, in deciding to strike out the application to Mr S Carter and Mr Hopson - but not that of Mr B Carter - the Tribunal was exercising a discretion and that an appellate Tribunal can only intervene if the Tribunal, in reaching their decision as to the exercise of that discretion, have made an error of law or have failed to take into account a relevant matter which should have been taken into account, have taken into account a relevant matter which should not have been taken into account or have reached a conclusion which no reasonable Tribunal could have reached and which was not "a permissible option".[28]We propose to address first the issue of as to whether it was necessary for the Tribunal to consider, in exercising their discretion, whether or not a fair trial of the claims of Mr S Carter and Mr Hopson could still be had, despite their failure to comply with the Tribunal's directions and Orders, their participation in the letter of 16 May and Mr S Carter's absence from the Tribunal on 21 May and whether the Tribunal's decision to strike out can be attacked as disproportionate. In De Keyser -v- Wilson [2001] IRLR 324 , the Tribunal struck out the employer's Notice of Appearance on the basis that they had conducted the proceedings in a scandalous manner; the conduct to which objection was taken, in a case in which the employee's complaint of constructive dismissal was based on the employer's reaction to her ill health, was the provision to a medical expert who was to examine the employee of a letter the terms of which were abusive and prejudicial towards the employee. The Employment Appeal Tribunal allowed the employer's appeal. At paragraph 25 of its judgment the Employment Appeal Tribunal said:
"We must keep in mind, too, that the case at hand is a case not involving disobedience to or failure to perform an order of Court; wilful, deliberate or contumelious disobedience was not in issue. Parts of those passages from Arrow Nominees and in particular the passage from Logicrose show the great importance, in relation to a discretion to strike out the whole of a case where there has been no such disobedience of an inquiry into whether a fair trial is or is not still possible. Unfortunately, there is no sign whatever of that having been considered by the employment tribunal in the case before us. Whilst no one would suggest that it is incumbent upon a tribunal necessarily to set out every consideration which in the exercise of its discretion, affects its mind one way or another, to leave out so crucial a factor as the question of whether a fair trial is still possible either indicates that the matter was not within the contemplation of the tribunal (thereby committing the error of law of leaving out of account something which so obviously should have been taken into account) or, if the matter had truly been in the tribunal's mind but is omitted from express mention, leaves the tribunal open to argument that it has failed the Meek -v- City of Birmingham [1987] IRLR 250 test"
. In reaching that conclusion the Employment Appeal Tribunal relied on the decision of the Court of Appeal in Arrow Nominees - Blackledge [2002] BCLC 167 .[29]We draw attention specifically to the Employment Appeal Tribunal's view that De Keyser did not involve disobedience to or failure to perform an Order of the Tribunal or wilful, deliberate or contumelious conduct. In Terry -v- Hoyer UK Ltd (Unreported; Judgment 4 May 2001) the Court of Appeal had to consider an employee's appeal against the striking out of his Originating Application in which he claimed that he had been unfairly dismissed and put forward other claims. There was a history of non-compliance with orders (including an order as to the provision of a tape recording and a transcript and of witness statements) and of the writing of unpleasant and provocative letters to others involved in the litigation, including the Tribunal. Counsel for the employee made the point that nothing which had occurred would prevent a fair trial of the action and that proceedings should only be struck out if a fair trial could not be achieved and justice could not be done as a result of the conduct on which the strike out application was based.[30]At paragraph 16 of his judgment, Pill LJ, with whom Arden and Dyson LJJ agreed, said:
"I make the general observation that I do not accept that conduct is incapable of being scandalous or frivolous such as to justify a strike out within the meaning of the Rules only if there cannot eventually be a fair trial notwithstanding that conduct. There is conduct which no court or tribunal, with its necessary concern of the proper administration of justice, could tolerate. Courts and tribunals must be concerned to do justice. They must, in doing that, have regard to the interests of litigants in general, to the proper use of court time and to the need to ensure respect for courts and tribunals in the community." and at paragraph 23 he said: "
I have already made a general comment about the approach which a tribunal or court may be expected to take when provoked and abused in the way in which the Employment Tribunal found that they had been. A decision was to be taken in all the circumstances and in my judgment, on the material before the court - and Mr Holden certainly did not understate the unpleasantness and provocativeness of the letters - the Tribunal was entitled to conclude that the problem was not over. Moreover, the Tribunal commented, and fairly commented in my judgment, that notwithstanding the appointment or suggested appointment of Mr Hammond further letters were written."[31]He concluded, at paragraph 32, that the Tribunal were obliged to consider the circumstances as a whole, that they had done so and that they were entitled to reach the conclusion that they did on the basis of the employee's conduct.[32]Arden LJ at paragraph 36 drew attention to the absence of any expression of regret, contrition or apology for the Tribunal, the Employment Appeal Tribunal or the Court of Appeal.[33]In Neckles -v- Yorkshire Rider Ltd (EAT/1267/01 judgment 18 January 2002), the Employment Appeal Tribunal considered an appeal against the decision of a Tribunal to strike out the employee's claim because he had secretly tape recorded the Tribunal's proceedings and sought to use a transcript derived from such recordings at a subsequent hearing. The Employment Appeal Tribunal referred to both De Keyser and Terry and concluded that, while Tribunals must always guard against he temptation of allowing their understandable indignation at the way a case is being pursued to lead to a miscarriage of justice, the Tribunal, in the light of the employee's conduct and the absence of any acceptance by him of that conduct or apology for it, were entitled to exercise their discretion as they had.[34]It is clear from these authorities that it is open to a Tribunal to conclude that an Originating Application or a Notice of Appearance should be struck out even though a fair trial may, despite the errant party's conduct, still be possible. Paragraph 16 of the judgment of Pill LJ in Terry makes it clear that there may be cases in which the Tribunal may properly consider that the conduct complained of is unacceptable and that justice requires that, irrespective of whether a fair trial can still be had, the errant party's claim or defence should be struck out.[35]However the Tribunal's reaction to the conduct under consideration must amount to a proportionate response. In Bennett -v- London Borough of Southwark [2002] IRLR 407 the Court of Appeal was considering the striking out by the Tribunal of the employee's discrimination claim on the grounds of scandalous behaviour by the employee's representative; further details are unnecessary for present purposes. At paragraph 28 Sedley LJ, with whom Longmore LJ and, on this issue, Ward LJ agreed, said:- "There is a further hurdle to be surmounted in any strike-out application, as both counsel before us agree. It is that, if the conduct of a party's case is shown to have been scandalous, it must also be such that striking out is a proportionate response to it." It is from this source that Mr Ashworth derives his submission that the Tribunal's reaction in the present case to the conduct of Mr S Carter and Mr Hopson was disproportionate. We should add that, in contrast to Bennett , there was no issue before us as to whether the Tribunal were entitled to find that the conduct of Mr S Carter or Mr Hopson fell within the words "scandalous, frivolous or vexatious".[36]If the Tribunal reached their decision without considering whether or not a fair trial of Mr Carter's and Mr Hopson's claims could still be had despite their conduct, that was a course which, in law, they were entitled to take; it was for the Tribunal to decide whether the conduct of Mr S Carter and Mr Hopson was such that justice required the striking out of their claims without reference to any such question. The conduct which they had to consider was, in our judgment, wholly clear. Mr S Carter had failed to comply with the Tribunal's Orders in relation to witness statements and tape recordings; no explanation had been offered for these failures (save for the manifestly bogus points made in the letter of 16 May). As a result, as the Tribunal found at paragraph 16G, Hi-Way were prejudiced because they were not in a position to know the case against them. In addition Mr S Carter had sent the letter of 16 May seeking an adjournment on what was plainly a false and dishonest basis; he was physically fit to attend the Tribunal and had been when the letter was written. We might add that although(1) the adjournment sought was refused and therefore Mr S Carter knew that the hearing would or was or should be expected to be effective on 21 May;(2) he was aware that Hi-Way's solicitors knew of his appearance before the Crown Court;(3) he was warned by those solicitors to bring the true situation to the attention of the Tribunal, he did not attempt to do so or to apologise for the dishonest letter (save by a telephone call of which the Tribunal were unaware to which we will refer shortly).[37]The Tribunal did not, of course, have before them the affidavit which Mr S Carter swore shortly before the resumed hearing before us. We did not order such an affidavit; Mr Carter chose to put it before us and both sides agreed that we should look at it. While its contents cannot add to the conduct which the Tribunal had to consider, they may assist us to understand more fully the judgment about that conduct which the Tribunal had to make; and we are entitled to comment upon the presence or absence of any valid explanation or convincing apology in it.[38]The affidavit starts with a request that we should accept Mr Carter's sincere apology for any inconvenience that has been caused. He continues in the first paragraph by asserting that he felt that he had done what was required to notify the Tribunal and those concerned of his difficulties and that he did not intentionally mislead any of the parties as to his predicament.[39]In paragraph 2 he explains that it only became apparent on 17 May that his Crown Court trial would go into the week of 21 May; and in paragraph 3 he describes a phone call to the Tribunal, made at 5.10 pm on 17 May, in which he left a message with an unidentified employee of the Tribunal's service "explaining his difficulty". Exhibited to the affidavit is a written record of the message taken over the telephone by that employee in which Mr S Carter is recorded to have said that he could not attend on 21 May "as he has a note and an appointment at the County Court". (The missing word in the record of this telephone conversation is presumably "sick"). The record continues that Mr S Carter was told that a Chairman had refused his request for an adjournment and that the case would proceed.[40]In paragraph 4 Mr S Carter says that he went to the Tribunal in Leeds on 21 May at 9 15 with his wife and had a conversation with Hi-Way's solicitor and the Tribunal clerk, both of whom he claims to have told that he had to go to the Crown Court. He says that he did not expect his wife to act as a legal representative but she was there to apologise on his behalf to the Tribunal and answer any questions about his attending the Crown Court. He continues that he anticipated that the Tribunal would acknowledge his difficulties and adjourn the case or let him return to it later in the week.[41]As to his health he set out in paragraph 6 that he had suffered an injury to his shoulder two to three weeks before the Tribunal and "was not feeling one hundred percent" because of the injury and the stress of the Crown Court hearing.[42]We feel bound to say that it is incomprehensible to us that Mr S Carter could assert that he had done what was required to notify the Tribunal of his difficulties or that he did not intentionally mislead any of the parties. He had, in fact, given to the Tribunal a wholly false pretext for seeking an adjournment, which the Tribunal passed on to Hi-Way's solicitors. As to paragraph 2 of the affidavit, one might wonder why, if he did not know until 17 May that his trial would go into the following week, he gave a false pretext for seeking an adjournment in his letter of 16 May; and while the exhibited note of the telephone conversation on 17 May does refer to an appointment at the County Court (which we take to be an innocently mistaken description of the Crown Court) the true position was not described in such a way as to rectify the false picture created by the previous letter.[43]While Mr Allen QC took us through the affidavit line by line and made detailed and trenchant criticisms of it, we do not see any need to go further into it in this judgment, save to point out that the explanation of the sending of the medical certificate is wholly unrealistic and that the GP's letter of 17 March 2003 exhibited to it refers to depression and anxiety in 2000, to a shoulder injury in May 2001, for which he was treated by pain killers and anti-inflammatories into July 2001 but does not suggest that Mr S Carter was in any respect handicapped in attending the Tribunal or in preparing for or presenting his case to the Tribunal. There is no suggestion that the shoulder injury required a hospital attendance or a specialist consultation.[44]Finally on this topic, while apologising for the causing of any inconvenience, the affidavit contains no explanation of or apology for the failures to comply with the Tribunal's orders and no apology at all for the content of the letter of 16 May. Taken as a whole the affidavit justifies the view that Mr S Carter had and still has little or no regard for the Courts or Tribunals.[45]However we regard it as right - for this material was not before the Tribunal - to put all of that on one side and to consider whether, in the light of the authorities to which we have referred, it was open to the Tribunal to take the view, as a proportionate response, that Mr S Carter's conduct was such that it could not be tolerated and that his claim should be struck out. To strike the claim out was, manifestly, a draconian step for the Tribunal to take. However it was not argued that Mr S Carter's was not frivolous, scandalous or vexatious; it was manifestly serious conduct showing no care for the authority of the Tribunal or for the interests of the Tribunal, the other party to the proceedings or for justice; and, save that Mr S Carter's absence was explained by his presence in the Crown Court, his conduct was unexplained or unsatisfactorily explained. In the light of the conduct which was before them, which we have set out above and particularly in the light of the finding at paragraph 16(g) of the Tribunal's decision, we have no doubt that it was open to the Tribunal to take the course which they chose in the exercise of their discretion, that that course was proportionate to the conduct of Mr S Carter and that they reached a decision which was not one which no reasonable Tribunal could have reached and which was a permissible option. The Tribunal were not prevented in law from so deciding in the absence of Mr Carter for the reasons we have set out earlier in this judgment; it was open to them to strike out when they did as long as Mr Carter's representative had a proper opportunity to respond to Hi-Way's application.[46]This brings us to the remaining ground of appeal, namely that the Tribunal should not have struck out Mr S Carter's claim in his absence without any warning and without considering whether he was properly represented by Mrs Carter.[47]Mr S Carter knew, by at the latest Thursday 17 May, that he was not going to get the adjournment that he sought and that he would not be able to be present at the hearing on the following Monday. He did not, however, arrange for professional or other experienced representation (although he had been represented earlier in the history); but he did take steps to ensure that he would be represented, by his wife. There has been no suggestion that she had any reason to be present at the Tribunal hearing on 21 May other than as his representative. The Chairman's notes reveal that, at the outset, the Chairman identified who represented whom, and specifically established from Mrs Carter that she was representing her husband and was authorised to do so. In his affidavit, Mr S Carter acknowledges that Mrs Carter was indeed at the Tribunal as his representative and does not deny that he left her there in that capacity; he says that he would not have expected her to act in the way a solicitor or legal representative would have acted - and that of course is correct on any view; but he does not say that she was not present as his representative. He goes on to say that she was at the Tribunal to apologise on his behalf and to answer any questions in relation to his commitment to attend the Crown Court; but he does not suggest that her authority to represent him was expressly limited. He must have known that the writing of the letter of 16 November would come up and that the Tribunal would or might require an explanation.[48]Even if he had placed an express limitation on her authority, the plain facts are that Mrs Carter did not notify the Tribunal of any such limitation and, when specifically asked by the Chairman, she confirmed that she was representing her husband and had authority to do so.[49]There was in these circumstances no need, in our judgment, for the Tribunal to adjourn to give Mr Carter an opportunity to explain his conduct. So far as they were concerned Mrs Carter was there with his authority to represent him. The Chairman on behalf of the Tribunal took care to ask the questions that it was necessary for him to ask of Mrs Carter in the circumstances; and having done so and having obtained the answers that we have described, it was in our judgment open to the Tribunal, who of course knew where Mr S Carter was, to take the view that he had made such arrangements for representation as he wished and that Mrs Carter was, pursuant to those arrangements, present to act as his representative.[50]Accordingly we have no hesitation in expressing the view that the Tribunal were wholly justified in proceeding as they did in Mr S Carter's absence and on the basis that his wife was present to represent him. Contrary to what has been suggested on Mr S Carter's behalf, the Tribunal had no knowledge of any limitation on Mrs Carter's authority.[51]We turn, therefore, to Mr Hopson's case. The arguments put forward in his case cover the same ground as those in the case of Mr S Carter with the exception, of course, that he was present, representing himself and subject to the additional argument put forward by Mr Ashworth that the Tribunal should not have held the letter of 16 May against him.[52]The Chairman's notes, at paragraph 12, record that when his turn to argue against the strike-out application came, Mr Hopson told the Tribunal that he was aware of the letter of 16 May, that the reasons (by which plainly is meant the reasons put forward for the requested adjournment) were authorised by him and that he authorised the inclusion of his name in the letter; and he accepted that he had no "note" (i.e. medical certificate) which said that Mr S Carter was incapable of attending and it confirmed that he believed that Mr Carter could attend the Tribunal although he did not know for how long he could sit down. He is recorded in the notes as having agreed that he knew he needed to hand over the tapes (paragraph 13) that there were two tapes which had not been copied to Hi-Way and for which transcripts had not been provided (paragraph 15). What Mr Hopson said, as recorded in the notes, is faithfully summarised in paragraphs 10 and 12 of the Tribunal's decision.[53]Mr Hopson also put in an affidavit at the beginning of the second day of argument. In paragraph 2 of that affidavit he accepted that he signed the letter of 16 May; he stated that his intention was to confirm that he knew that Mr S Carter had suffered an injury at work as he had been working with him at the time and he claimed that the Tribunal had misinterpreted his signing of the letter as indicating support for Mr S Carter's application for the hearing to be adjourned. In paragraph 3 he said that the Tribunal Chairman appeared to make decisions without seeking a full and proper explanation from him and that he was not fully aware of what the Tribunal was seeking to achieve.[54]So far as those last points are concerned, Mr Ashworth acknowledged that no such complaint against the Tribunal or the Chairman had previously been made, that such a complaint if properly made would have had to have been taken up with the Chairman and his comments sought, that there was nothing in the Amended Notice of Appeal as to these points and that he could not have advanced them by way of argument, although in the absence of specific instructions from Mr Hopson he could not formally abandon them. For the reasons which Mr Ashworth sensibly anticipated, we reject these points; they were not taken in the Amended Notice of Appeal and no application to re-amend was made; if made such an application would have been refused; it was by the second day of the argument before us at a full hearing of the appeal far too late for this new basis for Mr Hopson's appeal to be advanced.[55]Was the Tribunal entitled to hold the letter of 16 May against Mr Hopson? As we have said, he told the Tribunal that he authorised the letter, and the advancing of the false case for an adjournment which it contained when he knew that Mr S Carter was physically able to attend the Tribunal. He did not deny that he had signed it - and in his affidavit, which of course the Tribunal did not have, he confirms that he did sign it. It does not appear and it is not suggested on his behalf that he told the Tribunal that he was only intending to corroborate the fact that Mr S Carter had suffered some injury at work - as now in his affidavit he says he was intending by signing the letter. Had such a suggestion been made it would not doubt have been rejected; the letter was one which conveyed and was intended to convey to any reader that the signatories were seeking an adjournment because of Mr S Carter's injury; whether there was or was not an injury and where it occurred was not relevant. But our view of the letter is not material save insofar as we are required to consider whether it was open to the Tribunal to treat Mr Hopson as having lent his support to a dishonest application for an adjournment. In the circumstances we have set out it was, in our judgment, clearly open to the Tribunal so to conclude.[56]There is no need for us to set out separately in Mr Hopson's case our reasons for rejecting his appeal insofar as it is based on the complaint that there was no notice or warning of the strike-out application. We reject that ground in his case for the reasons set out in the case of Mr S Carter, subject to the obvious point that there was no problem about presence or representation in Mr Hopson's case. The Tribunal gave him a reasonable opportunity for him to address them on the two central points on which the application was based, namely the letter of 16 May and the failures to comply with the Tribunal's orders. The Tribunal obtained Mr Hopson's comments on both limbs; and the Tribunal distinguished, in the exercise of their discretion, between his case and that of Mr S Carter on the one hand and that of Mr B Carter on the other.[57]As to the issues of proportionality and whether the Tribunal should have considered whether a fair trial was possible, we repeat all that we have set out in Mr S Carter's case. In Mr Hopson's case there was further misconduct indicating his attitude towards the Tribunal namely, as he revealed to the Tribunal, the presence of the two tapes on which he wished to rely which had not even been provided to Hi-Way in transcript form. The Tribunal's finding as to prejudice at paragraph 16(g) of their decision was the more powerful in Mr Hopson's case in these circumstances. On the material before the Tribunal they were entitled, in our judgment, to strike out Mr Hopson's claim as and when they did; and their conclusion was not one which could not reasonably be regarded as a proportionate response to Mr Hopson's conduct.[58]For those reasons these appeals fail and must be dismissed.