MR K TURNER v (1) MR N SANDHAM T/A WASTEAWAY SKIP HIRE (2) MRS C SANDHAM (3) LSS WASTE MANAGEMENT LTD [2008] UKEAT 0028_08_2805

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0028_08_2805

Case No Appeal No. UKEAT/0028/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K TURNERAPPELLANT

(1) MR N SANDHAM T/A WASTEAWAY SKIP HIRE (2) MRS C SANDHAM (3) LSS WASTE MANAGEMENT LTDRESPONDENT

Before

Mr Justice Wilkie

Date 28 May 2008

[1]APPEARANCES For the Appellant MR AKHLAQ CHOUDHURY (of Counsel) Instructed by: Messrs Eatons Solicitors The Old Library 34 Darley Street Bradford West Yorkshire BD1 3LH For the 1st and 2nd Respondents For the 3rd Respondent MR JAMES ROBINSON (of Counsel) Instructed by: Messrs Gordons LLP Riverside West Whitehall Road Leeds LS1 4AW No appearance or representation by or on behalf of the Respondent SUMMARY Practice and Procedure – Striking-out/dismissal Strike out claim by virtue of scandalous unreasonable conduct. Whether ET merely considered whether hearing was still permissible and/or a strike out disproportionate. THE HONOURABLE MR JUSTICE WILKIE This is an appeal against a decision of the Employment Tribunal held at Leeds, before a Chairman, that the consolidated proceedings brought by Mr Turner against, respectively: Mr Sandham t/a Wasteaway Skip Hire; Mrs Sandham; (1 st and 2 nd Respondents) and LSS Waste Management Ltd; (3 rd Respondent) be struck out on the grounds that Mr Turner and his solicitor, his wife, Ms Singleton, had conducted the proceedings in a scandalous and unreasonable manner.

[2]The Claimant presented his first claim against the 1 st and 2 nd Respondents on 15 February 2007. He complained of unfair dismissal, breach of contract and disability and age discrimination. His complaints were set out in a full narrative over some four and a half pages at the end of which he identified the essence of his case. At no point in that narrative, or in the summary, did he refer to his having had in his possession documentation revealing illegal cash dealings by the 1 st and 2 nd Respondents, nor to the fact that he had mentioned this to the 3 rd Respondent, nor did he mention that any of these matters in any way contributed to the decisions of the 1 st and 2 nd Respondent of which he complained. His proceedings against the 3 rd Respondent commenced on 15 March 2007. He similarly complained of unfair dismissal, breach of contract and age and disability discrimination. He sought to claim against the 3 rd Respondent on the basis of the actions of the 1 st and 2nd Respondents and the transfer of liability for them to the 3 rd Respondent, pursuant to TUPE, but he also, independently, made a claim against the 3 rd Respondent in connection with certain actions of theirs which were separate to those of the 1 st and 2 nd Respondents. As with his first claim there was no mention whatever of, or claim that, any of the actions complained of were by reason of his knowledge of, or his possession of, the documentation which he retained in respect of the alleged illegal cash transactions.

[3]The Claimant, throughout, acted by solicitors but the solicitor conducting his case was his wife. The 1 st and 2 nd Respondents acted in person though it appears with the assistance of a solicitor Ms Wallace. The proceedings were not conducted amicably, at an early stage the 1 st and 2 nd Respondents complained of bullying by the Claimant's solicitor but that complaint was dismissed by the Chairman at a case management discussion held on 25 May 2007.

[4]On 28 June there was a meeting with a view to try to settle the matter. This involved the Claimant and both the 3 rd Respondent and the 1 st and 2 nd Respondents. In the meantime the 3 rd Respondent had commenced proceedings against the 1 st and 2 nd Respondents seeking an indemnity in respect of any liability the third Respondent might have by virtue of complaints against the first and second Respondent.

[5]In advance of that meeting there were two relevant conversations. The first was between the Claimant and the 1 st Respondent. The Claimant produced for the Tribunal a hand written note said to record the content of that conversation. It records him saying that his wife and the 3 rd Respondent's solicitors were having a meeting with a view to settlement and, in the light of the indemnity claimed by the 3 rd Respondent, he thought: that the 1st Respondent would want to be there to protect his position; and that it would be better for everybody if the matter was settled. The Claimant's note records that the 1 st Respondent at that point said:

"without prejudice just between us what of my papers you've got, are they about cash jobs? I can get into trouble with revenue if it comes out at tribunal, there could be an investigation."

He records himself as saying:

"Cash jobs nothing to do with me, not my fault, had to tell Mark Pritchard – could be investigation tribunal might tell revenue but part of why sacked so tribunal needs to know."

The Claimant stood by that as an accurate account of the conversation in which the 1 st Respondent introduced the question of the cash payments and concerns about the Tribunal but that he responded by insisting that the Tribunal would need to know about those matters.

[6]The 1 st Respondent gave evidence by means of a witness statement. In the course of that he had said as follows:

"However he went on to say that it would be good for me to attend the settlement meeting because if this case goes to a tribunal it will open up the way for tax investigations. The conversation then ended. It was clear that Keith was threatening me. I then realised why Keith had taken the paper work that he had mentioned back in January 2007. It seemed that Keith had deliberately taken some confidential information from the business and was trying to use it against me to coerce me into settling his claims. I believe that is blackmail and should not be used to conduct legal proceedings."

Thus the 1 st Respondent was asserting that this subject had been introduced by the Claimant. The reference to retention of certain documents was to the fact that, whilst working at home part of the time, the Claimant had come to possess certain documents which, he said, revealed cash transactions. Immediately after his dismissal on 2 January the Claimant had informed the 1 st Respondent that he had these documents and wanted to return them. The Claimant indicated he would return them to the 3 rd Respondent but, according to the Claimant, the 1 st Respondent said that he should not because the transaction for transfer had not yet gone through and that they should be returned to the 1 st Respondent at his home address. Although the Claimant had indicated that his wife would do that, it was never done, Ms Singleton claiming it was inconvenient for her to go to that address.

[7]On 26 June and in connection with the settlement meeting, which the 1 st and 2 nd Respondents had, by then, agreed to attend, there was a telephone conversation between Ms Singleton and Ms Wallace. From the phone records that call took 18 ½ minutes. Ms Singleton says that she took a contemporaneous file note using shorthand. The shorthand document is in the bundle as is a typed file note which, in essence, is an accurate transcription of the shorthand notes. That record shows the conversation touching on a number of different subjects. The most relevant for this purpose is a segment which reads as follows:

"Ms W wants to know if the Claimant is saying that his disability was the reason for his dismissal. MS said Claimant thinks this was the main reason plus fact he had to go into hospital therefore LSS did not want him and/or the Sandhams thought LSS did not want him and this might scupper the deal as well as LSS being unhappy about his retirement age and the Sandhams being unhappy about the Claimant discussing with LSS certain business practices of the Sandhams. Ms W wanted to know what was meant by this. MS said she understood that the Sandhams did a lot of cash jobs and there were some issues surrounding a tax investigation earlier last year and Mr Sandham was concerned because the Claimant knew about this. MS said the Claimant had been asked about this by Mr Pritchard at LSS at an interview and had then been asked to provide details to him of all cash jobs. Ms W said she did not know anything about this but said it would be difficult to prove they were doing cash jobs. MS said the Claimant had some copy documents and that the Sandhams knew that he had these as he had told them just after his dismissal. MS said the Sandhams wanted them back but as the tribunal will have to determine the real reason for the dismissal and as the Claimant thinks that this may have been part of the reason they should properly be put before the tribunal. Ms Wallace asked if MS intended to put these in the bundle and MS said 'Yes'."

Ms Singleton's note has the parties then going on to a different subject before the conversation concludes. Ms Singleton gave evidence consistent with that file note. Ms Wallace also produced a file note. In her supplemental witness statement she stated that it was a handwritten contemporaneous note of the conversation. In her witness statement she said of that part of the conversation as follows:

"I recall that Ms Singleton asked me about cash payments and she went on to say that this would have to come out at the hearing and the inland revenue would be notified. The telephone conversation terminated thereafter. I was so shocked at what Ms Singleton had said that I forgot to note down the time that the telephone conversation had ended. It was clear to me Ms Singleton meant that it was in my client's best interests to attend the settlement meeting otherwise financial irregularities would be disclosed."

Her file note is significantly shorter than that of Ms Singleton. It identifies in four numbered short paragraphs discussion on a number of issues. The order of the subjects is different from that contained in the file note of Ms Singleton. In particular the last subject is that of cash payments. She has noted as follows:

"Cash payments – concerned that this would come out at the hearing. Inland Revenue."

[8]The meeting of 28 June duly took place but did not succeed in settling the matter. On 4 July 2007 the 1 st and 2 nd Respondents wrote to the tribunals enclosing a copy of a letter sent to the Claimant. They wished to lodge a complaint concerning the conduct of the Claimant and his wife who was acting as his solicitor. They alleged that the whole claim had been pre-meditated and planned by the Claimant and his wife and that his wife had threatened them with blackmail. They also continued their complaint of bullying, complained of Ms Singleton not staying objective, alleged that her conduct was totally inappropriate and unprofessional and that it was unacceptable for the Claimant and her to try and blackmail them into settling the claim out of court. They asked that the claim be dismissed due to the serious nature of that conduct.

[9]The letter to the Claimant referred to by the 1 st and 2 nd Respondent was dated 3 July. It contains amongst other things the following passages:

"You have already confirmed in numerous telephone conversations that you do have paper work belonging to us. You first mentioned this on 3 rd January 2007…you said that your wife Maureen was going to drop this paper off at LSS Waste Management's offices but they have never received anything. The paper work is obviously still in your possession as both you and your wife have made comments in the past week relating to paper work that you have taken from our office. You said to myself on the phone "it would be worth while you attending the settlement meeting because if this case goes to a tribunal it will open up the way for tax investigations"

. Your wife…passed comment to our solicitor last Tuesday again confirming that she had paper work of ours and again suggesting that she thinks Wasteaway has been involved in underhand dealings in some way and that if this case goes to a tribunal she will bring this out at the hearing…. I feel that in some way you are trying to blackmail me into attending settlement meetings instead of attending the tribunal…your wife…who is an employment law solicitor and who is also an employment tribunal chairwoman has resorted to using this kind of conduct to try and force me to settle this case out of court…"

[10]This complaint gave rise to a case management discussion by telephone on 2 August. As part of the record of that conversation the Chairman stated the following:

"For the avoidance of doubt it was clarified during to-day's telephone discussion that the misconduct alleged by Mr and Mrs Sandham is firstly that in a telephone conversation on 19 une 2007 between Mr Turner and Mr Sandham Mr Turner asserted that it would be preferable for the Sandhams to attend a forthcoming meeting in order to try and compromise the claim as attending a tribunal would open the way up for a tax investigation. Mr and Mrs Sandham make a further similar allegation about a telephone conversation between Ms Singleton and Ms Sandham's solicitor Ms Wallace of Gordons. It is Ms Singleton's position that the content of that conversation was privileged and therefore reference cannot be made to it. The tribunal will have to ascertain amongst other things whether that conversation was in fact without prejudice and if so whether the tribunal may nevertheless hear evidence about it for the purposes of determining whether or not the proceedings were in fact conducted scandalously or unreasonably. "

[11]The Tribunal hearing took place initially on 7 September at which evidence was heard. The intention was that written submissions were to be produced by 12 October. However on 21 st September the Chairman wrote to the parties to the effect that he was concerned that one of the possible findings he might be required to make was that the Claimant's solicitor had forged the file note which she claimed to have reflected the contemporaneous shorthand notes. That point had never been put to her and he invited the parties to consider whether a further hearing and evidence might be helpful to him to resolve that issue. He identified a number of concerns which he had focussing on various differences in the respective notes produced by Ms Singleton and Ms Wallace. Accordingly there was a further hearing on 9 November at which Ms Singleton gave further evidence.

[12]In his decision it is apparent that the Chairman was of the view that the two contending records of the telephone conversation of 26 June, if they were both said to be contemporaneous records, could not stand together. That much is obvious because the order in which matters were recorded as being discussed is completely different the one from the other. Accordingly, logically, one or both of them must have been records made after the end of the conversation and based on recollection rather than notes taken as the conversation was proceeding. The insistence of both Ms Wallace and Ms Singleton that they were contemporaneous meant that one or other of them wasn't giving accurate evidence whether deliberately or otherwise.

[13]In paragraph 12 of the decision he indicated that one possible view was that Ms Wallace was not telling the truth. He indicated that one of the factors which he would weigh in considering that explanation was that there was no evidence to suggest that Ms Wallace had an axe to grind whereas the Claimant and his wife plainly had a financial interest in the outcome of the proceedings.

[14]The Chairman went on to make findings of fact. He had to make a decision whether the Claimant or the first Respondent was right about the conversation on 19 June and, in particular, who had first introduced the question of the cash payments and the concern that it would be referred to in the Tribunal. In so doing he decided that it would be helpful to consider the contending versions of the conversation of 26 June. He carried out a detailed analysis of the respective file notes of Ms Wallace and Ms Singleton. He came to his conclusion on credibility at paragraph 44 of the decision in which he said as follows:

"Drawing all the above evidential threads together, on the main issue at this pre hearing review I prefer the evidence of the 1 st Respondent and Ms Wallace. I find that the Claimant improperly retained documents the property of the 1 st and 2 nd Respondents during the course of his employment. Having acknowledged immediately after dismissal that he had them, and having said that he would return them by his wife, he failed to do so. I am satisfied they took a deliberate decision to withhold those documents. The inference is that they did so because they saw that they could use them as a lever against the 1 st and 2 nd Respondents particularly since those Respondents had been sensitised by an earlier Revenue investigation. 45. When the 1 st and 2 nd Respondents were under pressure following the case management discussion at the end of May and in order to secure their attendance at the settlement meeting, I am satisfied that first the Claimant and then his wife and solicitors raised with the 1 st Respondent and then his solicitor their possession of those documents and adverted to the risk that the 1 st and 2 nd Respondent faced if the matter came to a hearing before a tribunal. I noted particularly that, although by the time both sets of proceedings were presented, the Claimant and his wife had already decided not to return the documents, they made no reference to them or the issue to which they were said to be relevant, namely the reason for dismissal in either of the two claims."

[15]It appears that the evidential threads referred to by the Chairman comprised at least the following. First, the retention by the Claimant of the documents when he knew that they were not his to retain and that the first Respondent wanted them back. Second, the fact that he thought it odd that Ms Singleton would be able, at the same time, to do the bulk of the talking on 26 June and contemporaneously make shorthand notes of what she was saying. Third, the fact that she did not call her secretary to confirm that the date of the typed file note was 26 June rather than 27 June, which appears on the note but which was said by Ms Singleton to be a mistake by the secretary as the file note was typed on 26 th June virtually immediately after the conversation and on the basis of the shorthand notes. Fourth, the fact that there were, in the shorthand notes, certain figures which the Chairman believed could not have been referred to in that conversation because there had been a previous disagreement to such figures being mentioned absent an agreement by Ms Wallace not to reveal them in written form to the first and second Respondents. Fifth, the adverse view he took of Ms Singleton as a witness which he recorded at paragraph 43. She did not give her evidence, in his judgment, straight forwardly and he formed the view that her verbosity was a cover for obfuscation. Finally in paragraph 46 he said as follows, which reflects what he had said in paragraph 12:

"I preferred the evidence of Ms Wallace because she had no axe to grind. The Claimant and his wife did have an axe to grind. They both as husband and wife had a financial interest in the outcome of the proceedings. Further Ms Singleton was being paid as her husband's solicitor through legal costs insurance. In my judgment a prudent solicitor who was also a part time Chairman of employment tribunals and anxious to preserve her impartiality in the eyes of the public would not have acted as her husband's solicitor. Given the availability of legal costs insurance, she could have invited him to go to another firm of her choice."

In paragraph 48 he came to his conclusions about Ms Singleton's records. He accepted that she did prepare an attendance note following her discussion with Ms Wallace on 26 June. He found on the balance of probabilities that she had altered her attendance note to reflect her more anodyne version of the inducement to attend the settlement meeting. Having made that finding, he concluded that logic drove him to make a similar finding in respect of the Claimant's note of the conversation of 19 June. Although he accepted that the 1 st Respondent was not altogether a satisfactory witness he was consistent in his letter of 3 July to the Claimant and in his evidence at the Tribunal. He went on to conclude that, once the complaint had been made, Ms Singleton sought to manipulate Ms Wallace into agreeing her more anodyne version. That was a reference to attempts, after the case management discussion of 2 August, by Ms Singleton to get Ms Wallace to agree her file note as accurate by asserting that this was one of the things which the Chairman had suggested, though it is not contained in the formal order. Suffice it to say that Ms Wallace despite, repeated requests by Ms Singleton, declined to do so and produced what she said was her own contemporaneous note of that conversation.

[16]The reference to the more "anodyne" version seems to be a reference to the fact that, in Ms Wallace's note, there is specific reference to the Inland Revenue as an important feature worthy of note in that fairly brief record. In the file note of Ms Singleton there is no reference to the likelihood of the Tribunal referring the matter to the Inland Revenue. On the contrary there is only a reference to there having already been an investigation by the tax authorities.

[17]In paragraph 49 of the decision the Chairman dealt with the law. He summarised the approach identified in the case of Bolch v Chipman

[2004] IRLR 140

as follows :

"Before striking out, there must be a conclusion by me not simply that the Claimant has behaved unreasonably, vexaciously or scandalously but that the proceedings have been conducted by or on his behalf in one or more in these ways. By itself, such a finding is not enough. I am also obliged to decide as to whether a fair trial is or is not possible. 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. In terms of sanction, I have to act proportionately. Adopting the European test, I might ask what legitimate aim a striking out order would serve and whether it would be an appropriate and necessary means of achieving that aim, or whether some lesser sanction would achieve it."

In my judgment there is no error of law evidenced by the Chairman identifying his approach as set out above.

[18]In paragraph 50 he applied the law to the facts. He said as follows:

"I find that the Claimant and his wife have conducted the proceedings unreasonably and scandalously. To seek to induce an opposite party to attend settlement negotiations on the basis that a tribunal hearing might lead to a tax investigation where the fraudulent conduct of the business has not already been raised as an issue in the case is both unreasonable and scandalous. A fraud on the revenue satisfies the description of scandalous. Retaining documents belonging to the 1 st and 2 nd Respondent upon a spurious legal basis and then using those in the manner described satisfies the description of unreasonable."

[19]In paragraph 51 he went on to explain that such a finding was not enough on its own to justify a strike out. He identified the options as to either strike out the claims entirely, or against the 1 st and 2 nd Respondents only, or to impose lesser sanctions, such as debarring the Claimant from making any application to amend the claims at this stage and ordering him to return the offending documents to the 1 st and 2 nd Respondent. He considered and rejected striking out part of the claims. In paragraph 52 he set out his judgment in respect of the other two stages in his deliberation which he had identified in paragraph 49. He said as follows:

"In my judgment, it is probably enough to say that the Claimant and his wife have shown by their conduct that they are not to be trusted to conduct the proceedings fairly so as to render further proceedings unsatisfactory. If that is sufficient reason to justify a strike out of the claim against the 1 st and 2 nd Respondents, it would be wrong to leave untouched the claim against the 3 rd Respondents because the claim will still have his day in tribunal and would end up recovering from the 1 st and 2 nd Respondents on the indemnity in the transfer agreement…"

It is in that paragraph that, it is said, the Chairman considered both whether a fair trial was possible having regard to the misconduct he had found proved and whether the sanction of a strike out was a disproportionate one.

[20]Paragraph 53, the concluding paragraph in the decision set out a further and alternative basis for ordering a strike out. The Chairman said this:

"If that is not sufficient to warrant a strike out of both claims, the situation in this case is aggravated by the fact that the Claimant's solicitor is also a part time Chairman of employment tribunals. The public clearly has an interest in the professional integrity of not only solicitors per se but also those who, in addition, hold part time judicial office. In my judgment, not to strike out in the circumstances of this case would bring the law and the employment tribunals into disrepute in the eyes of right thinking members of the public. Accordingly, I identify the aim as maintaining the integrity of employment tribunal proceedings and find that strike out is the only appropriate and reasonably necessary means of achieving that aim."

The grounds of appeal

[21]Although there are seven grounds of appeal, the argument has focussed on three main headings. Bias, perversity, and erroneous application of the principles identified in paragraph 49. The allegation is not that the Chairman was in fact biased but that a fair minded observer having considered the facts would conclude that there was a real possibility that the Tribunal was biased. The source of the bias is said to be a pre-disposition on the part of the Chairman to disbelieve Ms Singleton and/or to find her guilty of misconduct because the Chairman disapproved of her acting as solicitor for her husband particularly because she was a part time Chairman of Tribunals. As Mr Choudhury points out there is no prohibition on a solicitor acting for a member of her family nor is there any prohibition on a part time Chairman of tribunals appearing in an Employment Tribunal provided that it is not in the region where she sits in that capacity.

[22]It is to be observed that, at its highest, the Chairman expressed doubts as to the prudence of Ms Singleton action for her husband particularly in view of her position as a part time Chairman. Furthermore the particular use to which the Chairman put this issue was when he felt obliged to make a judgment on credibility as between two solicitors Ms Wallace and Ms Singleton. He took into account the fact that Ms Wallace, as a professional representative acting for a client at arms length, was in a somewhat different position to take an objective view of her client's position than Ms Singleton who was directly, both personally and financially, involved in the outcome of the litigation by virtue of being the wife of the Claimant.

[23]In my judgment the argument on bias is hopeless. The fair minded and informed observer would have observed the Chairman wrestling with a difficult problem of credibility between two professional people. In explaining why he preferred the evidence of one to the other he was obliged to identify the main reasons for doing so. It is a matter of common sense that one of those matters might well be whether the circumstances in which each of them acted for their respective clients gave any clue as to which of them would be more inclined to "gild the lily" of their evidence to assist their client. In making the observation that Ms Singleton was in a significantly different position from Ms Wallace he was doing no more than making a statement of the obvious and having regard to something to which he was plainly entitled to have regard. The fact that, if such an issue arose, the position of a spouse acting as a solicitor could be subject to that level of scrutiny is one of the features which makes it risky for a spouse to act in that respect. It may not be improper but it may not be prudent. In my judgment there is nothing whatever in the reasons or in the passages particularly relied on by Mr Choydray which would satisfy the test of a potential for bias.

[24]In arguing perversity Mr Choudhury has, of necessity, subjected the various findings of fact, and factors going towards those findings of fact, to a very fine level of analysis. The Chairman had the opportunity of observing Ms Wallace and Ms Singleton give evidence. He had regard to a number of factors, not least of which was the way in which they gave their evidence. In my judgment there was nothing perverse in his conclusion that he should prefer the evidence of Ms Wallace to that of Ms Singleton. In any event, even on their own case, both the Claimant and Ms Singleton were saying, in the context of seeking to persuade the first and second Respondents to attend the settlement discussions, that they would ensure that the information about the cash transactions and their dubious legality would be placed before the Employment Tribunal ostensibly as one of the reasons lying behind the Claimant's dismissal. The plain inference to be drawn from that statement was that the first and second Respondents would be embarrassed by those matters being ventilated in public because they had something to hide and that this was being used by both the Claimant and Ms Singleton as a lever to persuade them to attend the settlement discussions and, no doubt, to settle the case. That would have been perfectly legitimate had the pleaded case been from the outset that this was part of the reason why the Claimant had been dismissed by the first and second Respondent. There would have been nothing improper for this aspect of the matter to have been emphasised. That was not, however, the case. This aspect of the matter had never been part of the Claimant's case. In my judgment the Chairman was entitled, even on the evidence of the Claimant and Ms Singleton, to conclude that they had deliberately held this material in reserve and were deploying it at the most advantageous time as a threat on the footing the first and second Respondent would want to keep these matters out of the public domain and could be persuaded to settle the case in order to do so.

[25]In my judgment the Chairman was perfectly entitled on the evidence to conclude that this conduct was both scandalous and unreasonable in the terms that he did in paragraph 50 and there was nothing perverse in his so doing.

[26]The third question is whether, given that conclusion which was open to the Chairman, he erred in law, or failed adequately to explain or to analyse the situation, when coming to a judgment as to whether a fair trial was possible and/or whether the sanction of striking out the entire claim was proportionate.

[27]The first point raised by Mr Choudhury was that the Chairman erred in law by striking out the proceedings against the third Respondent when the scandalous and unreasonable behaviour only arose in connection with the first and second Respondent. In my judgment there is nothing in this point. The proceedings brought separately against the first and second and the third Respondents had been consolidated by the order of 3 August as had the consequential proceedings between the 3 rd and the 1 st and 2 nd Respondents. Therefore the scandalous conduct was in respect of one set of consolidated proceedings by the time the application to strike out came to be considered and there was no error of law in applying the strike out to both sets of proceedings. In any event it would have been unjust, if a strike out was appropriate in the 1 st and 2 nd Respondent proceedings, for the Chairman not to have struck out the proceedings brought against the 3 rd Respondents for the reasons that he gave.

[28]The difficulty which I find with the Chairman's decision is paragraph 52. In that paragraph he purports to deal with two significant issues. First, whether a fair trial is nonetheless still possible and second, whether the remedy of striking out the entire claim is disproportionate. The reasoning in that paragraph is a statement that because, in this particular respect, the Claimant and his solicitor have been found guilty of scandalous or unreasonable behaviour, they are thereby deemed to be so untrustworthy that it is not possible to see how the proceedings could continue fairly. In my judgment that is a bare assertion without any significant reasoning to support it. I have been referred to authorities in which unreasonable behaviour, for example in respect of disclosure, may nonetheless leave a fair trial possible because the damage is capable of repair and the proceedings can proceed fairly. On the other hand there are cases where, although the immediate damage can be repaired, there remain so many obligations of a similar nature for the offending party to perform that, as they cannot be trusted to perform those further obligations properly having regard to their previous conduct, it is not possible to say that the proceedings can continue fairly.

[29]In this case the scandalous and unreasonable behaviour concerned "without prejudice" settlement discussions and particular circumstances which, on the pleadings, were remote from the issues in the case. The evidence in the hearing would come from the Claimant and Ms Singleton as his solicitor would not be in a position to give any evidence. Furthermore, the documentation relevant to the pleaded issues is in the possession and control of the Respondents. It is difficult, on these facts, to see how the Chairman could have concluded that the case could not be conducted fairly. Bearing in mind the importance which the courts attach to hearing cases, if at all possible, notwithstanding the deplorable conduct of a Claimant and that a Claimant should not, unless unavoidable, be driven from the judgment seat, in my judgment the decision of the Tribunal Chairman was insufficiently supported by reasoning to amount to a proper decision at all.

[30]As the Chairman identified, there were alternative sanctions which could have been imposed tailored so as sufficiently to punish the Claimant and Ms Singleton for their behaviour, because focussed on that behaviour. In light of the finding of scandalous and unreasonable conduct it was open to the Chairman to direct that no amendment would be permitted which raised that issue and to debar the Claimant from seeking to rely on any evidence relating to the issue of cash business or to introduce any of the supporting documentation in evidence. This could have been coupled with an order that the Claimant and his solicitor hand over to the 1 st and 2 nd Respondents all such documents and all copies of such documents.

[31]In my judgment that would have been an order which the Tribunal could have made which would be proportionate to the misconduct found. It would go no further than was necessary in order to achieve the legitimate aim of punishing the scandalous and unreasonable misconduct. There is nowhere in the reasoning of the Tribunal any indication why the Chairman concluded that these alternative sanctions would not be a sufficient and proportionate response to the misconduct found. Therefore I accede to the argument of Mr Choudhury that the Chairman has failed to articulate any sufficient reasoning for his conclusion. Furthermore, in my judgment such an order would have been a proportionate response and, therefore, on this basis the appeal must succeed.

[32]As for the alternative basis identified by the Chairman in paragraph 53, I agree with Mr Choudhury that, on the facts of this case, it was illegitimate of the Chairman to strike the case out on the basis that it was necessary to maintain the integrity of Employment Tribunal proceedings merely because Ms Singleton, whose conduct was in question in her capacity as a solicitor, happened also to be a part time Chairman of tribunals. I accept the submission of Mr Robinson, for the 1 st and 2 nd Respondents, that there can be circumstances in which a strike out would be appropriate even though a fair hearing was possible. That would be where the misconduct of one of the parties corrupted the Tribunal process itself. In such a case, even though a fair hearing may be possible, the conduct may so attack the integrity of the system that it would be an affront to justice if the Tribunal were nonetheless to permit the person responsible to continue to conduct his claim through the system which he had sought to corrupt. That, however, is a long way removed from this case. The conduct of Ms Singleton was in her capacity as solicitor for one of the parties and had nothing to do with her position as part time Chairman of tribunals. In my judgment the conclusion of the Chairman that, in those circumstances, protecting the integrity of the Tribunal system constituted a sufficient reason to strike out the Claimant's claim was misconceived as a matter of law.

[33]For the reasons I have given the appeal against the order for strike out shall succeed. I shall substitute for it an order that the Claimant be debarred from amending his claim in any way to allege the relevance of any cash only transactions or any documentation supporting an allegation of cash only transactions and that the Claimant and/or his solicitor Ms Singleton must within 7 days of the date of this order hand over to the solicitors for the 1 st and 2 nd Respondents all documents retained by him belonging to the 1 st and 2 nd Respondents and all copies of such documents which relate to cash transactions.

[34]In light of the findings against Ms Singleton of scandalous and unreasonable conduct, which I have upheld, and in the light of the fact that she holds a position as a part time Chairman I direct that the decision and reasons of the Employment Tribunal and this judgment shall be referred to the President of Tribunals for him to consider what, if any, further action to take in respect of those matters.