MR M RIDSDILL AND OTHERS v 1) D SMITH & NEPHEW MEDICAL 2) MR A DUFFY 3) MR S M WHITTLETON [2006] UKEAT 0704_05_1707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0704_05_1707Case No Appeal No. UKEAT/0704/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M RIDSDILL AND OTHERSAPPELLANT1) D SMITH & NEPHEW MEDICAL 2) MR A DUFFY 3) MR S M WHITTLETONRESPONDENT
Before
Mrs Justice CoxDate 17 July 2006
[1]APPEARANCES For the 1st Appellant For the 2nd Appellant MR T HOEY MR JONATHAN COHEN (Of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 4th Floor Brazennose House West Brazennose Street Manchester M2 5AZ NEITHER PRESENT NOR REPRESENTED For the 1st Respondent SMITH AND NEPHEW MEDICAL For the 2nd Respondent MR A DUFFY For the 3rd Respondent MR S M WHITTLETON MR JEFFREY BACON (Of Counsel) Instructed by: Messrs Hammonds Solicitors 2 Park Lane Leeds LS3 1ES NEITHER PRESENT NOR REPRESENTED NEITHER PRESENT NOR REPRESENTED SUMMARY Chairman's decision to strike out claims which had not been actively pursued and when there had been failure to comply with Tribunal orders. The appeal concerned the extent to which a Chairman, in considering the proportionate response and the overriding objective, should himself consider whether a fair trial would still be possible between the parties by adjourning the imminent hearing and giving appropriate directions, where no application to adjourn is made by the defaulting party. Appeal allowed. THE HONOURABLE MRS JUSTICE COX Introduction This is the full hearing of an appeal by the Claimants against a judgment of the Hull Employment Tribunal issued on 16 th August 2005. On a Pre-Hearing Review (PHR) held on 10 th August the Chairman, sitting alone, made an Order striking out their claims on the basis that they had not been actively pursued and that there had been a failure to comply with Orders of the Tribunal for provision of schedules of loss and for exchange of witness statements. The Chairman's written reasons for his judgment were sent to the parties on 11 th October 2005.[2]The particular issues raised in this appeal relate to the approach to be adopted by Tribunals and Chairmen when considering the exercise of their statutory strike-out powers under the 2004 Regulations and when considering, in particular, whether a fair trial is still possible between the parties. They are therefore of some significance, even in this already well-litigated field. There is no challenge to the Chairman's findings of fact as to the Claimants' failure to comply with previous Orders for directions. The basis of the appeal is that the Chairman erred in striking out the claims in circumstances where a lesser and more proportionate sanction ought to have been imposed; and in finding, as he did, that a fair trial was no longer possible. Mr. Cohen, counsel for the Claimants, submits that in deciding to strike-out these claims the Chairman failed to apply the correct test and therefore erred in law. To the extent that it is necessary for him to do so he also submits that, in deciding in the exercise of his discretion to strike the claims out in the circumstances of this case, the Chairman went beyond the generous ambit within which a reasonable disagreement is possible, as referred to in Tanfern Limited v Cameron-MacDonald [2000] 1WLR 1311 CA, and that the appeal should be allowed on that basis in addition.[3]In resisting the appeal Mr. Bacon, counsel for the Respondents, contends that the Chairman directed himself correctly and exercised his discretion appropriately on the unchallenged findings of fact, weighing in the balance the various factors relevant to the overriding objective, as he is required to do. He was entitled to conclude that a fair trial was no longer possible in the circumstances. Notwithstanding, as the Chairman himself recognised, that it was a Draconian measure, the decision to strike-out these claims was a legitimate exercise of his discretion and cannot be impugned on appeal.[4]There are three short preliminary matters. Firstly, not all of the eight Claimants named on the first page of the Tribunal's judgment remain as Claimants or as Appellants in this appeal, and there has been some confusion over representation. Mrs. Luty and Mrs. Collins withdrew their claims below, as the judgment makes clear. Of the six Claimants who appealed two, Mr. Duffy and Mr. Whittleton, have since withdrawn their appeals. Today Mr. Cohen is instructed by USDAW's solicitors who represent three of the four remaining Appellants, namely Mr. Ridsdill, Mrs. Bennett and Mrs. Watson. Whilst all four Appellants were represented by USDAW when the Notice of Appeal was lodged it appears that Mr. Hoey is no longer represented by them. He did not appear before me at this appeal, but he wrote to the EAT on 14 th June 2006 enclosing some written comments in support of his appeal which he wished to be considered at this hearing. In fact, as Mr. Bacon acknowledges, the issues which arise on appeal are identical in relation to each of the four Appellants and I have, therefore, had regard to Mr. Cohen's submissions in Mr. Hoey's case in addition.[5]Secondly, the Respondents are no longer pursuing what they described as a cross appeal, although it seemed rather to be an invitation to the EAT to uphold the Tribunal's judgment on another ground. In any event that invitation is no longer extended and the issues arising on the cross appeal have not featured in the arguments before me.[6]Thirdly, the Respondents no longer rely upon a factual assertion made in paragraph 4.1 of their Answer to the Notice of Appeal that, during the hearing, the Chairman had asked the Claimants' representative, Mr. Aylward of USDAW, if he was going to apply for a postponement of the hearing due to start on 18 th August next, but that Mr. Aylward confirmed that no such application was being made. That assertion was denied and the Chairman, responding to enquiries about this matter, has confirmed that no discussion as to possible postponement took place. Whether the Chairman should himself have considered a postponement of the hearing in determining whether a fair trial was still possible is one of the issues arising in this appeal; but the Respondents no longer suggest that the Claimant's representative turned down an opportunity offered by the Chairman for him to apply for one.[7]The Relevant Facts The Claimants were all shift managers who complained of unfair dismissal arising out of the same redundancy selection exercise. The Claims, which were all consolidated, were lodged in February and March 2005 and Mr. Aylward was named as the representative in each case. The Respondents resisted the claims on the basis that there was a genuine redundancy situation and that they had followed a fair procedure when selecting the Claimants for dismissal.[8]At a Case Management Discussion on 21 st April 2005 a Chairman made a Consent Order in which, materially,(a) the claims were listed for a hearing on the liability issue only, to take place on 11 th July 2005 with a time estimate of two days; and(b) there was to be mutual exchange of witness statements on or before 30 th June 2005. Subsequently, on 10 th May, the Respondents' solicitors wrote indicating that a potential witness was not available on the proposed hearing date in July and asking for the matter to be re-listed. A further Notice of Hearing for the 18 th and 19 th August was then sent to the parties.[9]On 1 st June the Respondents' solicitors wrote to the Tribunal asking for an Order for provision by the Claimants of schedules of loss, in order that they could understand the compensation to which each Claimant said s/he was entitled, given the payments they had already received, and the basis for the sums claimed. Previous attempts to obtain this information voluntarily had proved fruitless. As the present Chairman pointed out, it would have been of assistance to the Claimants as well as to the Respondents for such schedules to be provided, if only to concentrate the minds of both parties on the value of the claims before they embarked on extensive preparation for a two-day liability hearing.[10]A Chairman then made an Order dated 14 th June (allowing time for the Claimants to register any objection, which they did not) providing that on or before 1 st July 2005 each Claimant was to serve on the Respondents' solicitors a schedule of loss together with copies of all the documents held by those Claimants which were relevant to that issue. No schedule was served by any Claimant, however, and on 6 th July the Respondents' solicitors wrote to the Tribunal applying for an Order that each of the claims be struck out as a result of the Claimants' failure to comply with the 14 th June Order and requesting a PHR for that purpose.[11]In accordance with the Tribunal's usual procedure the Claimants were allowed seven days to comment on the proposal, but no response was received before the Chairman ordered on 13 th July that, on or before 5 th August, the Claimants should show cause why their claims should not be struck out for failing to comply with an Order of the Tribunal. Only on 14 th July did the Tribunal receive a letter from Mr. Aylward referring to the PHR. He stated that he had sent schedules of loss in respect of some of the Claimants to the Respondents by first class post that day, but that he was still awaiting information from three other Claimants. By the time of the PHR on 10 th August these other schedules had still not been served. Mr. Aylward suggested that the problems might have been the result of those Claimants being on holiday, but the Chairman stated that he had heard nothing to indicate that that was in fact the case and that there was "no sensible explanation why those Claimants have not given instructions to Mr. Aylward to provide those schedules."[12]At the PHR on 10 th August, at which the Claimants were represented by Mr. Aylward, the Respondents' solicitor did not, as the Chairman had anticipated, limit her strike-out application to the three Claimants who had not yet served schedules. She applied instead for all the claims to be struck out on the basis that the 14 th June Order had been required as a last resort and that nothing had been provided until mid-July, which was in breach of the Order. Even in relation to the schedules that had been served not all the documentation in support had been provided. No request had been made by the Claimants to extend the time allowed for compliance and there had been no response to the "show cause" Order by 5 th August. The claims had not been actively pursued and no witness statements had been served in accordance with the Order of 21 st April.[13]For the Claimants, Mr. Aylward accepted that the schedules served had been served late. He had seen the Order of 14 th June for the first time on 20 th June and, when he was back in his office on 22 nd June, had then written immediately to all the Claimants explaining the need for compliance with the Order and asking them for information to enable him to complete the schedules. Some of the Claimants had by now obtained jobs elsewhere and he needed to complete the schedules accurately. He had met some of the Claimants at the end of June and was then on holiday until 13 th July, completing their schedules on his return. The Chairman noted that there was no indication that the three other Claimants had been in touch with Mr. Aylward before the hearing and no attempt had been made to complete their schedules or provide any financial information to the Respondents in those cases on the hearing date itself.[14]The Tribunal's Judgment The key passages in the Chairman's reasons for striking out these claims are those at paragraphs 15 to 18 which read as follows:
"15. Mr Aylward was not able to give me any explanation as to why witness statements had not been completed in respect of the issue of liability. I took into account in making my judgment the fact that the original Order was made as long ago as 21 April 2005 and provided for compliance by 30 June 2005. It appears from explanations given by the representatives today that the parties mutually agreed, without any reference to the Tribunal, that witness statements would be exchanged on 5 August 2005. It was intended that that would provide for compliance 14 days prior to the Hearing. Although there is no formal Order of the Tribunal in respect of that latter date, I treat that date as the effective compliance date. Five days later, there has been a total failure on the part of each of the Claimants to comply with that agreed date, and no explanation has been given to me as to why there has been that failure to comply. 16. During the course of his submission, Mr. Aylward did not suggest that it would be appropriate to postpone the Hearing fixed for next week on 18 August 2005. Had any such request been made, I would, of course, have considered it on its merits. As it is, I have considered the Respondent's request for a Strike-Out Order on the basis that I am considering whether there can be a fair trial of the action next week. One week before that Hearing, no further information beyond that contained in the claim forms has been supplied to the Respondent as to why these dismissals should be regarded as unfair. It is right to say that that the majority of the Claimants have completed the claim forms in sufficient detail that the issues they raise can be clearly identified. Nonetheless, it was accepted that witness statements should be prepared and should be mutually exchanged, and there has been a complete failure to comply with that Order. Nothing has been said today to indicate that there would be compliance with that Order at any time prior to the Hearing.. The object of making an Order for exchange of witness statements is that the opposite party knows the evidence that will be given on the Hearing by the time it reaches the Hearing. In my view, compliance with an Order of the Tribunal is not to be treated as an option. If that were the case, there would be no purpose served by making an Order. 17. I appreciate that the making of a Strike-Out Order might be seen as Draconian, and I am well aware that no such Order should be made unless, in the view of the Tribunal, a fair trial of the action is no longer possible. In the absence of any request for postponement, I consider that a fair trial is not possible. In the case of each of the six remaining Claimants, no witness statements have been served. That amounts both to a breach of the Orders, as voluntarily extended by the parties, and a failure actively to pursue the claim. In the case of the three Claimants Mr Ridsdill, Mr Duffy and Mr Whittleton, they have not only failed to comply with the Order for exchange of witness statements but have conspicuously failed to supply details of their losses, if any. That failure to supply a Schedule of Loss causes very substantial prejudice to the Respondent, which cannot in my view be remedied, in that the Respondent is quite unable to enter into any meaningful negotiations for any settlement of these claims which it might wish to conclude with the parties for whatever reasons. Negotiations for settlement are as much a part of a fair trial of the claim as is the actual Hearing. 18. For those various reasons, I have concluded that each of the claims of the six remaining Claimants should be struck out."
[15]The Legal Framework The Chairman's powers to strike-out a claim are contained in Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. Subject to the requirements of notice in Rule 19, on which nothing turns in this appeal, Rule 18, dealing with the conduct of Pre-Hearing Reviews, provides at Rule 18(7), so far as is relevant, as follows:
"…. a Chairman or Tribunal may make a judgment or Order …. …… (d) Striking out a claim which has not been actively pursued; (e) Striking out a claim or response (or part of one) for non-compliance with an Order or Practice Direction; (f) Striking out a claim where the Chairman or Tribunal considers that it is no longer possible to have a fair Hearing in those proceedings."
When exercising any power given to it by the Regulations or any Rule in Schedules 1 to 6 a Tribunal is required by Regulation 3 to seek to give effect to the overriding objective, which is to enable Tribunals and Chairmen to deal with cases justly. Finally, by Rule 10(2)(m) a Chairman may postpone or adjourn a hearing on his own initiative.[16]It was accepted by the Respondents' solicitor below and is common ground before me on the authorities that before there can be a strike-out of a claim or indeed of an employer's response, there must be a conclusion by the Tribunal, upon enquiry, as to whether a fair trial is or is not still possible. It is unnecessary to refer in detail to the various authorities where this principle is referred to, but Mr. Cohen drew to my attention the following relevant passages in the judgments of the Court of Appeal in Arrow Nominees Inc and Another v Blackledge and Others [2001] BCC 591 ; and more recently, in Blockbuster Entertainment Limited v James [2006] EWCA Civ 684 . Mr. Bacon does not dispute that these cases establish the correct approach to be adopted by Tribunals when exercising their strike-out powers.[17]In Arrow Nominees Chadwick LJ, dealing with the effects of a party's failure to disclose relevant documents in the context of commercial litigation, said as follows at paragraphs 54 to 55:
"54. …. I adopt, as a general principle, the observations of Mr Justice Millett in Logicrose Ltd v Southend United Football Club Ltd (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. 55 Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court."
These principles have since been held to apply equally to Employment Tribunal litigation; see Bolch v Chipman [2004] IRLR 140 .[18]In Blockbuster v James an Employment Tribunal had struck out a claim under Rule 18(7)(c), on the grounds that the manner in which the proceedings had been conducted had been unreasonable. At paragraph 20, Sedley LJ giving the judgment of the Court said:
"20. This power, as the employment tribunal reminded itself, is a Draconian power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2000] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324 , Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371 , but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal."
He returned to proportionality at paragraphs 35 and 36, as follows:
"35. It is common ground that, in addition to fulfilling the requirements outlined above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was 'the only proportionate and fair course to take'. This aspect of their determination played no part in Mr James's grounds of appeal and accordingly plays no part in this court's decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us. 36. It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact - if it is a fact - that the tribunal is ready to try the claims; or - as the case may be - that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences."
Mr. Cohen also drew my attention to Sedley LJ's earlier observation at paragraph 30 of his judgment, when dealing with the fact of service of a new and differently worded witness statement on the first day of the Tribunal hearing that:
"Serving a significantly different account of events on the day of the hearing may well make a fair trial impossible, at least without an adjournment."
He derives some assistance from that observation in addressing me on the facts of the present case.[19]This Appeal On behalf of the Claimants Mr. Cohen accepts that the decision whether or not to strike-out a claim involves an exercise of discretion by the Chairman and that the Chairman must have regard to the overriding objective and the need to deal with cases justly. He submits, however, that this Chairman failed to adopt the structured approach required by the authorities, erroneously taking into account only a fixed moment of fairness when asking himself whether a fair trial was still possible; and, notwithstanding the Claimants' default, failing to go on to consider whether strike-out would be a proportionate response in the circumstances, weighing in the balance the interests both of the parties and of litigants generally. The Chairman limited his enquiry into whether a fair trial was possible to whether there could be a fair trial the following week on the dates already fixed. He did not consider, as he should have done, whether a fair trial could still be secured if, notwithstanding the failure of the Claimants' representative to apply for an adjournment, he himself adjourned the hearing date and made appropriate orders as to service of the witness statements and schedules and as to the costs of the PHR. This, he submits, amounts to an error of law and the appeal should be allowed on that basis. Further, even when viewed as an exercise of his discretion, the Chairman exceeded the generous ambit referred to in Tanfern in deciding to strike-out these claims in the circumstances of this case and on the particular facts found.[20]Mr. Bacon in response emphasised the discretionary nature of the Chairman's decision in submitting that no error of law was disclosed in his reasoning and that his decision to strike-out was well within the boundaries of what a reasonable Tribunal or Chairman could decide in the circumstances of this case. He contends that the Chairman did adopt the structured approach required and applied the correct test in asking whether a fair trial was still possible. He was entitled to conclude that it was not. The question is not whether a fair trial is possible in any circumstances or whatever the cost. These were not complex claims and, given the extent of the Claimants' default, the Chairman had proper regard to the overriding objective in deciding that the claims should be struck out. There was no obligation on the Chairman to consider adjourning the hearing in the absence of any application by the Claimants' trade union representative. It is clear, however, from paragraphs 15 and 16 that the Chairman had the possibility of postponement in mind, but decided to reject it, given the history of events and the Claimants' failure to comply with the previous Orders or to give him any reassurance for the future. A mechanical or "tick box" approach is neither required nor appropriate in the exercise of these powers. Tribunals and Chairmen should not be strait-jacketed and are entitled to look at matters in the round in considering how to deal with cases justly.[21]These last submissions as to the correct approach generally to be adopted by Tribunals in such cases were not in dispute in this appeal; and I did not understand Mr. Cohen to be advocating that an unduly restrictive or mechanical approach was necessary. On the contrary it seems to me that the "structured approach" referred to by Sedley LJ in Blockbuster v James refers to a transparent process of enquiry which enables a Tribunal to ensure, ultimately, that the case has been dealt with justly and that the decision in any particular case is therefore in furtherance of the overriding objective.[22]I am not persuaded by Mr. Bacon's submission that paragraphs 15 and 16 of the reasons, read together, show that this Chairman did have an adjournment in mind in considering whether a fair trial was possible, but rejected it as a possibility after consideration. The only proper conclusion to draw from paragraphs 15 to 17 in my judgment is that he expressly excluded the possibility of an adjournment from his consideration. This is clear from the first two sentences of paragraph 16 where, having said expressly that he would have considered on its merits a request for an adjournment if one had been made, he said that he was, in fact, considering the strike-out application on the basis that the question was "whether there can be a fair trial of the action next week." He also emphasised in the second sentence of paragraph 17 that his conclusion that a fair trial was not possible was arrived at "in the absence of any request for postponement."[23]I agree, therefore, with Mr. Cohen's submission that the Chairman expressly restricted his consideration of this important question to a "fixed moment of fairness", namely whether a fair trial could take place on 18 th and 19 th August 2005 rather than whether in all the circumstances, a fair trial was still possible between these parties if the hearing was adjourned to another date and appropriate directions given in terms of pre-trial preparation.[24]I have to say it is not immediately obvious to me that this hearing could not have gone ahead on the dates fixed in any event, with Orders or "unless" Orders for short service of the witness statements and schedules within two or three days. The PHR was held on Wednesday 10 th August. An Unless Order for service even by 10 a.m. on Monday 15 th would still have allowed three working days for consideration before the hearing (of what are accepted to be straightforward claims) commenced on Wednesday 18 th . Be that as it may, however, the main issue on this appeal is whether the Chairman erred, notwithstanding Mr. Aylward's failure to request an adjournment, in failing himself to consider and determine whether an adjournment and re-listing of the hearing with appropriate directions for compliance with previous Tribunal Orders could have achieved a fair trial of these claims.[25]I have considerable sympathy for the Chairman's view, expressed at paragraph 16, that compliance with Tribunal Orders, made to ensure fairness as between the parties and to avoid delays, is not to be regarded as optional. Unless such Orders are complied with and the parties are aware that sanctions will be applied for breach, there is indeed little purpose to be served in making them. As the Chairman himself recognised, however, striking out a claim and thereby debarring a Claimant from access to a judicial determination of his complaint, is a Draconian measure. As such it should therefore be applied in general as a last resort, the final tool in the range of sanctions weaponry available to Tribunals to tackle the wide range of abuses or failures by defaulting litigants and to ensure, to coin a phrase, that the punishment fits the crime.[26]In my judgment, a proportionate response required this Chairman himself to consider whether there was a less drastic means of addressing the Claimants' failures and achieving a fair trial for these parties. In this litigation it was undoubtedly the case that an adjournment of the hearing, with appropriate Unless Orders and costs penalties, would have avoided the conclusion that a fair trial was impossible and would thereby have ensured fairness and justice as between the parties without debarring the Claimants from a trial altogether.[27]The Chairman seems to have acknowledged, implicitly at least, that adjourning the hearing would have prevented him finding that a fair trial was no longer possible; and it is not in dispute that he had the power himself under the Rules to order an adjournment. In observing that no request for an adjournment had been made, and in then limiting his consideration only to the question whether a fair trial was possible on the dates fixed for hearing the Chairman, in my judgment, was in error. As the Chairman he is himself under an obligation to consider and determine both whether a fair trial is still possible and the proportionality of the response to the Claimants' default, whether or not factors or applications relevant to that determination are raised by the parties themselves.[28]This error was compounded, in my view, by the Chairman's failure, given that an adjournment and therefore a lesser sanction than strike-out was featuring in his thought processes, to raise it with the parties and enable them to address him upon it. His statement that if an application for an adjournment had been made he would have considered it on its merits indicates not only that he had closed his mind to the possibility of an appropriate, lesser sanction than strike-out, but that he should have raised it with the parties if he thought, erroneously, that the failure by the Claimants formally to request an adjournment prevented him from considering it.[29]For these reasons the Chairman's decision was arrived at in error and his judgment cannot stand. Although it is therefore unnecessary to decide whether, in deciding to strike out the claims, he erred in the exercise of his discretion, I would have concluded on the facts of this case that he did. There was here no element of fraud, destruction of evidence or wilful misconduct, the Claimants' default consisting essentially of inactivity and delay. Whilst such tardiness and non-compliance with Orders should clearly be the subject of both censure and sanction, there is a need to consider a proportionate response even in the face of wilful disregard of procedural Orders, as Arrow Nominees and Blockbuster v James make clear. The fairness of this trial was not in jeopardy if the hearing had been adjourned and re-listed, with Unless Orders made, for example, for the exchange of witness statements and service of the remaining schedules and documents within seven days and with an Order for payment of the Respondents' costs of the PHR. If therefore the Chairman had considered an adjournment, he could only have concluded that he should adjourn the hearing and that a fair trial was in these circumstances still possible. There was still over a week to go before the hearing date and it is most unlikely that the time of the Tribunal would have been wasted unduly by vacating the two days set aside for the hearing at that time and on that degree of notice.[30]This appeal is therefore allowed. In the circumstances, since as both parties recognised the appeal has resulted in a de facto adjournment of the hearing and since there is no challenge to the Chairman's findings of fact, it is agreed that I should substitute my own decision on the matter, namely that these claims should now be reinstated. I so order and remit the claims for further directions and determination by the Tribunal in the usual way.