MR C J TISSON v TELEWEST COMMUNICATIONS GROUP LIMITED [2008] UKEAT 0607_07_1902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0607_07_1902Case No Appeal No. UKEAT/0607/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C J TISSONAPPELLANTTELEWEST COMMUNICATIONS GROUP LIMITEDRESPONDENT
Before
Mr Justice BeatsonDate 19 February 2008
[1]APPEARANCES For the Appellant MR S KENNEDY (Representative) Messrs Dowse & Co Solicitors 23-25 Dalston Lane London E8 3DF For the Respondent MR J COHEN (of Counsel) Instructed by: Virgin Media Legal Services Media House Bartley Wood Business Park Hook Hampshire RG27 9UP SUMMARY Practice and Procedure – Striking out/dismissal Relief from penalties - strike-out order THE HONOURABLE MR JUSTICE BEATSON Introduction This is an appeal by Mr Tisson, the Claimant before the Watford Employment Tribunal, against the judgment of a Chairman, Ms VK Gay, sitting alone on 9 October 2007, refusing his application by way of review to set aside the order of another Chairman, Ms Manly, dated 1 May 2007, striking out his claim for unfair dismissal brought against his former employer, Telewest Communications Group Limited. The strike out was due to the Claimant's failure to comply with the Tribunal's order, dated 18 April 2007, that he serve his list of documents on the Respondent on or before 25 April 2007 and that:
"Unless the above order is complied with within the specified time, the claim will be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a pre-hearing review or Hearing."
The review judgment was promulgated with reasons on 18 October 2007. There is no appeal against the strike-out order itself. Procedural History[2]The Claimant was employed by the Respondent as a service technician between 1 October 2001 and 3 October 2006. On 3 October 2006 he was dismissed following a hearing in his absence on the grounds of unauthorised absence from work from 9 August 2006 and breach of the Respondent's absence policy. The Claimant's absence followed an injury to his left hand whilst at work on 4 August 2006. On visiting hospital he was informed that he had sustained a fractured bone. The Claimant communicated this information and that he would be off sick for a number of weeks to his line manager, Mr Jaho, and states that Mr Jaho's only stipulation was that he keep in touch. The Claimant maintained that he did so keep in touch using texts and telephones. Telephone records shown to this Appeal Tribunal, to which I will return, show contact during August but not during September. The Respondent's response to the later Tribunal Proceedings state that it attempted to phone the Claimant on 7 September, on which date it also sent a letter to the Claimant. It also sent letters on 14, 18 and 22 September by recorded delivery. Only the last of these was delivered.[3]In early October the Claimant was informed that Mr Jaho was no longer his line manager, had been replaced by Mr Hunte, and that he had been dismissed in absentia on 3 October. The Claimant exercised a right of appeal, but, following a hearing on 7 November 2006, his appeal was dismissed. On 12 December 2006 he presented a claim to the Employment Tribunal. The claim was resisted by the Respondent, which submitted an ET3 dated 9 January 2007. On 14 February 2007 a Chairman of the Tribunal, on the Tribunal's own initiative, made the following[4]On 6 March the Claimant sent an email to the Tribunal requesting that the Respondent disclose his and Mr Jaho's phone bill records to prove that he kept in contact with him and that they disclose the notes from the dismissal and appeal hearings. His email states that the request had first been made by the Claimant's union in November 2006. The documents requested were supplied by the Respondent under cover of a letter dated 22 March 2007. By then the Respondent, in a letter dated 13 March, had asked the Tribunal to strike out the claim due to the Claimant's failure to comply with the order that he disclose his list of documents and schedule of loss by 28 February. The Respondent stated that it was in difficulty in complying with the direction that the parties prepare a joint agreed bundle by 19 March. On 19 March the Respondent notified the Tribunal that it was unable to prepare the bundle because the Claimant had not disclosed his list of documents. On 2 and 8 March the Respondents had applied to the Tribunal for a postponement of the hearing, due to the unavailability of two key witnesses. That application was refused by the Tribunal in a letter dated 4 April 2007.[5]On 18 April 2007 the Tribunal sent the "unless" order to the Claimant, requiring him to serve his list of documents on the Respondent on or before 25 April. On 26 April the Respondent informed the Tribunal that the Claimant had not supplied and schedule of loss in accordance with the order dated 18 April, and the previous order, dated 14 February and requested that the claim be struck out in accordance with rule 13 of the Employment Tribunal Rules of Procedure contained in schedule 1 of the Employment Tribunal Constitution and Rules and Procedure Regulations SI 2004 No 1861. The Respondent wrote to the Claimant enclosing a copy of the letter to the Tribunal.[6]On 1 May the Chairman, Ms Manly, struck out the Claimant's claim, pursuant to rule 18(7)(e) of the Employment Tribunal Rules of Procedure 2004 . In his form ET1, the Claimant did not name a representative. He gave as his service for address his then home address, 32 Mount Pleasant Hill, Clacton. He did thereafter give notice of any change of address for service, in accordance with rule 61(5) of the Rules of Procedure. The Claimant later obtained the assistance of a firm of solicitors. In a letter dated 14 May 2007, Dowse & Co stated they had recently been instructed and were advising and assisting the Claimant under the Community Legal Help Scheme. The letter states that the Claimant instructed them that he was somewhat confused as to the steps required by him in order to comply with the Employment Tribunal's directions and enclosed the list of documents. Although a formal application for a review of the strike out was presented on 18 May, the letter dated 14 May was, by consent, treated as an application for review.[7]On 12 June the parties were informed that the review hearing would be held on 9 October. The reason for the long delay is stated in the Decision of 9 October to be the extent of the backlog in the lists of Watford Employment Tribunals. The rules[8]Rule 18(7) provides that:
"Subject to paragraph 6, a Chairman or Tribunal may make a judgment or order (e) striking out a claim or response or part of one for non-compliance with an order or practice direction."
[9]Rule 18(6) provides that before a judgment or order listed in sub-paragraph 7 is made, notice must be given in accordance with rule 19 and that the judgments or order must be made at a pre-hearing review or review hearing if one of the parties has so requested. If no request has been made, such judgments or orders may be made in the absence of the parties. There is no issue taken, as I have stated, as to the strike out and no issue as to the circumstances in which it was made. Review is governed by rule 34. Rule 34(3) provides that:
"Subject to paragraph 4, Decisions may be reviewed on the following grounds only: The Decision was wrongly made as a result of an administrative error; A part did not receive notice of the proceedings leading to the Decision; The Decision was made in the absence of a party; New evidence has become available since the conclusion of the hearing to which the Decision relates, provided that its existence could not have been reasonably know of or foreseen at the time; or The interests of justice require such a review."
[10]The relevant legal principles are contained in two Decisions of this Tribunal: Maresca v Motor Insurance Repair Research Centre [2007] ICR 197, a decision of Rimer J, as he then was, and McGuire v Centre West London Buses Ltd [2007] UKEAT 057606 DN, a decision of HHJ Peter Clark, handed down on 4 May 2007. These were cases concerning the principles governing the review of a strike out as opposed to a challenge to the decision to strike out in the first place. In Maresca's case Rimer J stated inter alia that in dealing with an application of this sort, CPR rule 3.9 and the factors listed in it are to be taken into account by the Tribunal. He approved the approach of HHJ Peter Clark in the earlier case of Goldman Sachs [2002] ICR 1251 , that Employment Tribunals must exercise their powers under the Employment Tribunal's Rules of Procedure in accordance with the principles that apply under the Civil Procedure Rules. He, in effect, accepted Counsel's submission that the Tribunal's duty to have regard to the overriding objective in regulation 10 of the 2001 regulations necessarily required to treat the approach identified in CPR 3.9 as analogously applicable to the way an Employment Tribunal should approach a like question. At paragraph 39 his Lordship stated that in that case the Tribunal Chair had regard to only one of the CPR 3.9 factors. The factor to which the Chair had regard was a very important one but his Lordship stated that it did not follow that, by itself, it was inevitably fatal to the success of a review application. The appeal was allowed. His Lordship stated, at paragraph 41, that the balancing exercise required by a due consideration of the CPR 3.9 factors is one on which different minds might well come to different conclusions, being conclusions which could not be said to be wrong. It was for that reason that he did not simply remit the matter to the same Chairman but allowed the appeal and directed that there should be a hearing of the application for a review. I refer to that because it does give an indication of the nature of the CPR 3.9 factors to which I will refer after considering the Decision in McGuire .[11]Before turning to McGuire I observe that in Maresca's case the order was not an "unless" order but a "could result" order. Secondly, the trial date could probably have been maintained if relief was granted. Thirdly, the documents were provided within a short time of the expiry of the relevant order.[12]McGuire's case concerned a failure to comply with a case management direction's order for medical evidence. The appeal was allowed primarily on the ground that the Tribunal had failed to examine the balance of prejudice as between the parties and whether a sanction short of strike out was possible or appropriate. HHJ Clark set out the principles to be applied in considering whether or not to strike out a claim in paragraphs 18 to 20 of his judgment and then turned to review. He stated that the question in considering an appeal from a review decision is whether the Chairman erred in law in considering the application to review the matter. He then summarised the effect of Maresca's case. He reiterated the view of Rimer J that, in considering an application for review of a strike-out order in the interests of justice, the exercise of discretion by a Chairman of Tribunals in this jurisdiction should be in line with the approach taken by the civil courts under CPR rule 3.9. In that case the appeal was allowed because no consideration was given by the Chairman to a sanction short of strike out.[13]Rule 3.9 of the Civil Procedure Rule headed "Relief from sanctions" states:
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances, including: (a) the interests of the administration of justice; (b) whether the application for relief has been made promptly; (c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure; (e) the extent to which the party in default has complied with other rules of practice directions and court orders and any relevant pre-action protocol; (f) whether the failure to comply was caused by the party or his legal representative; (g) whether the trial date or the likely date can still be met if relief is granted; (h) the effect which the failure to comply had on each party; (i) the effect which the granting of relief would have on each party. (2) An application for relief must be supported by evidence."
[14]Mr Kennedy, on behalf of the Claimant/Appellant, accepted that McGuire's case was a different case to the Claimant/Appellant's but that, nevertheless, the Decision of Ms Gay was flawed. He relied on the Decisions in Blockbuster Entertainment Ltd v James [2006] IRLR 630 , and, in particular, the proportionality principle set out by Sedley LJ in considering strike outs. In paragraph 5 of the judgment, Sedley LJ stated that there are two cardinal conditions for the exercise of the strike-out power: 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. His Lordship stated if these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. His Lordship stated that the principles were more fully spelt out in Decisions in Arrow Nominees Inc & Anr v Blackledge [2000] 2BCLC 167 (CA) and De Keyser Ltd v Wilson [2001] IRLR 324 , Bolch v Chipman [2004] IRLR 140 (EAT) and Weir Valves & Controls (UK) Ltd v Armitage [2004] ICR 371 . Although not expressively spelled out in the Blockbuster case, the reliance on Arrow Nominees shows that in that context too, the CPR principles were being applied by analogy in the context of this jurisdiction.[15]Mr Cohen submitted that there was a distinction between consideration of a strike out where the principle of proportionality set out in the Blockbuster case and the other authorities was central, together with the principle of whether a fair trail was possible, and the situation in a case such as this where the court or Tribunal is dealing with relief from sanctions. He relied on the Decisions in Hanson v Rex Macon & Norman Wright [2003] (CA) EWCA Civ 1801 and Stolzenberg v CIBC Mellon Trust [2004] EWCA Civ 827 . In the former case Mance LJ, with whom Keene LJ and the President agreed, stated at paragraph 27 that although there would be many cases where the possibility or otherwise of a fair trial is highly important to the exercise of discretion under CPR 3.9. it does not follow that where a fair trial is still possible, relief will necessarily be granted:
"CPR 3.9 deals generally with the relief from sanctions imposed for failure to comply with a rule, practice direction or court order. It could not be the case that whenever such a sanction has been imposed and however flagrant or persistent the failure, the defaulting party could have it set aside by showing that a fair trial was still possible. The present appeal does not, however, involve flagrant or persistent misconduct, but, rather, all too familiar inefficiency and lack of diligence. And in such a case it is likely to be very material that a fair trial is still possible. But this cannot necessarily be decisive. All the circumstances must be considered. Prejudice to professional defendants is among them and it may exist even though it does not involve prejudice to the fairness of the trial process. In the present case, prejudice in the form of the detriment involved in having litigation hanging over professional defendants' heads was a decisive factor identified by the master and judge."
[16]In Stolzenberg v CIBC Mellon Trust, Arden LJ, in a judgment agreed to by Ward LJ and Sir William Aldous, stated at paragraph 167 that the approach of the court in a case considering relief for sanctions - exemplified by the Decision in RC Residuals Ltd v Lynton Fuel Oils was bound to be different from that in Arrow Nominees v Blackledge , as there was no "unless" order in the latter case. Her Ladyship stated:
"The fact that an 'unless' order has been made inevitably means that there is an additional factor to consider. Had there been a relevant order in Arrow Nominees, that, too, would have been a factor. It is only a factor to be weighed in the balance. Moreover, compliance with orders of the court is not a question of judicial amore propre . It goes to the essence of the rule of law that parties subject to the court's jurisdiction … should comply with the court's orders. The gravity of the matter of non-compliance is plainly increased where the non-compliance results from a conscious decision, as in this case. It follows, as Ward LJ said in High Tech Limited v Coventry City Council [1997] 1WLR 1666 at 1674 to 1675, that, 'If a party intentionally or deliberately … flouts the order, he can expect no mercy'. He has to persuade the court that in all the circumstances the injustice to him outweighs the interests of the administration of justice and the injury to the other party."
[17]Mr Cohen also relied on paragraphs 172 of the judgment, in which her Ladyship stated, of CPR rule 3.9, that:
"It has not been demonstrated that [the judge] was plainly wrong or that he took into account any irrelevant matter. It is not necessary to go through all the points made to the judge."
Earlier she had stated, of the dictum of Mance LJ in Hanson v Macon & Wright that Mance LJ had made:
"… it clear that although the court must go through each of the matters in the list in CPR 3.9 as a separate and distinct exercise, the result is not ascertained by adding up the 'score' of either side on each point. If that were the right method, there would be a danger of double counting. The object of CPR 3.9 is to ensure that all the right questions are asked. That produces 'structured decision making'. In addition to going through the subparagraphs of CPR 3.9, the court must ask itself if there are any other circumstances that need to be taken into account. However, having done all this, the court is then also required to stand back and form a judgment to the aggregate of the relevant circumstances that have been identified in going through the list to see whether it is in accordance with the overriding objective in the CPR to lift the sanction. This overall 'look see' is simply the overriding objective in action."
[18]Finally, Mr Cohen relied upon paragraph 156 of her Ladyship's judgment. This states:
"The power to grant relief against sanctions is a judicial discretion. Accordingly, to succeed on appeal, the Appellants must show either that the judge exercising the discretion erred in principle or that he left out of account a material consideration or that he took into account an irrelevant consideration or that he was plainly wrong in his overall conclusion."
[19]These two Decisions are not Decisions of this Tribunal or in this jurisdiction. But having regard to what was said in the Decisions in Maresca and McGuire , I have no doubt that the principles enunciated in them should be applied by analogy in this jurisdiction.[20]I turn to the review Decision. The Tribunal Chair's reasoned judgment runs to eight pages. I do not intend to further lengthen this judgment by setting out extensive sections of it. I do, however, summarise the evidence. Paragraph 12 of the judgment states that the Tribunal had a bundle of documents prepared by the Respondents which essentially contains documents already available to both parties but put together in a sensible order. The bundle was only served on the Tribunal and Mr Kennedy, who appeared on behalf of the Claimant, at the start of the hearing. The paragraph 12 also states that Mr Tisson gave evidence on oath and was cross-examined and answered questions from the Chairman.[21]I turn to the Tribunal's approach. Paragraphs 10 and 11 set out the authorities before the Tribunal, in particular, Maresca and CPR rule 3.9. The findings of fact are contained in paragraph 13 and the Tribunal's conclusions on the issues in paragraph 14. The Tribunal has set out its conclusions in subparagraphs which follow the subparagraphs of CPR rule 3.9(1). As far as the findings of fact are concerned, the Tribunal found that the Claimant received the order from the Tribunal dated 14 February. It records that he was chasing around to check whether his union would represent him and was also suffering from stress and anxiety at having been dismissed some nine months earlier because he had injured his wrist and there was an unhappy family or domestic situation.[22]The Tribunal records that the Claimant suggested in evidence-in -chief that he did not receive the "unless" order which was sent in the post by the Tribunal and that he said he did not recollect getting it. The Tribunal states that it was satisfied that he did receive it because reference was made to it by solicitors whom he instructed within a month and it appears that no further copy was sent to him. The Decision states that Mr Tisson accepted, in the face of this incontrovertible evidence, that he had received it on or before 20 April, allowing two days for the post: see paragraph 13.3.[23]The Tribunal records the Claimant's explanation as to why he did not comply with the order was essentially the same as the explanation of why he did not comply with the first[24]Paragraph 13.7 accepts the evidence that the Claimant was suffering from some stress and anxiety and had an appointment with a counsellor. Paragraph 13.8 states that the order to provide a schedule of loss had not been complied with at the date of the review hearing and that the Claimant accepted that he had received a proforma in respect of it. As paragraph 13.9 is of some importance to the appeal, I quote it in full:
"Mr Tisson is unemployed. He has not worked since his employment with the Respondent was terminated and would be unable to meet an order for costs in any significant sum."
Paragraph 13.10 records that the manager with whom Mr Tisson worked most closely, which I take to be Mr Jaho, had left the Respondent's employment in August or September and that if Mr Tisson communicated anything about sickness, absences or change of address, as to which no finding was made, it was by telephone message or email to that manager, from whom he received no response, perhaps because that manager had already left.[25]It is necessary to set out the Tribunal's conclusions on these issues in full. "14. The tribunal here applies the law and the findings of fact to the issues which have to be determined.(a) In respect of the administration of justice, the original Hearing date was lost (although presumably used for another case) and hearing this application for review has taken two hours, including some 20 minutes to dictate the judgment. Given the current state of listing, even allowing some priority, it is unlikely that the case could come on for a full day's Hearing until next year. We are currently listing 1-2 day cases in April 2008. Mr Cohen submitted that if Mr Tisson were allowed back into the tribunal he would believe that he could breach orders with impunity. That is not accepted: it is fairly clear that he understands that he would potentially be at risk of having a costs or preparation time order made against him if he succeeds today and that, as Mr Kennedy made clear, he could not expect such leeway a second time. On the other hand, Mr Tisson would not be able to pay any significant sum and the Respondent will certainly be left out of pocket (and thus paying for the default by the other party).(b) The application for review was not made particularly promptly. The Tribunal's mail is sent first class and the Order (judgment) recording that the claim was struck out should have arrived by 3rd May 2006. The first contact from Mr Tisson in respect of it was 14th May, just within the two week period permitted for an application for review. It was thus in time, but not as speedily off the mark as might have been expected in respect of a strike out order (judgment).(c) &(d) The breach of the "unless" order was intentional in the sense that Mr Tisson understood what was required and did not do it. Although he told the Tribunal that he did not think that he had got any relevant documents and that those which he had, the Respondent already had, it is patently clear that this is not correct in respect of ill health/arm injury. His eventual list showed several contemporaneous documents relevant to that, which he knew the Respondent did not have. There are matters, recorded in the findings of fact, which tend to show that Mr Tisson would have had somewhat greater difficulty than some litigants in person in complying with the Order (difficulty writing; stress and anxiety; somewhat awkward domestic circumstances and lack of representation), but both orders were clear, as he ultimately accepted, and he took no steps at all to comply - while simultaneously chasing the Respondent for greater disclosure. The tribunal concludes that Mr Tisson has not put forward any good reason which explains or exculpates his failure to comply with the clear orders of the tribunal, particularly the "unless" order. That order expired some eight weeks after the first order in respect of disclosure.(e) Unfortunately, Mr Tisson is still in breach of the order requiring him to provide a schedule of loss. Although this may sound like a technical matter, he apparently does intend to claim for all lost earnings and he was sent a pro forma which he could have completed. It counts against him that there is continued breach.(f) The failure to comply was that of Mr Tisson. He did not have a representative at the time.(g) The trial date was lost in consequence of the failure to comply. That will inevitably involve delay of almost one year (from May 2007, as intended, until April 2008) before the case could be heard. Shortage of judicial resources is not the fault of Mr Tisson, but in cost-conscious times, with tribunal budgets being cut, we can only work with what we have. Proportionality is a matter which we have to bear in mind.(h) The effect of the failure to comply is that a considerable amount of time has gone by. Mr Tisson, in giving evidence, already showed himself somewhat vague. For example he did not recollect receiving a letter that he undoubtedly had received. The Respondent relies upon the fact that the manager with whom Mr Tisson asserts he had had some communications has left their employment. Although that was already the case by the date of the dismissal, Mr Cohen advanced that it would be more difficult for the Respondent to compel attendance in order to give evidence about matters 1¼ to 1½ years old than it would have been in respect of matters merely some 8 or so months old, as would have been the case if the May 2007 Hearing had been sustained. The Tribunal accepts this: it is a matter of common sense, not only as to the ease with which the manager's attendance will be achieved but also as to the probable accuracy of his powers of recollection.(i) The affect of failure to grant the relief any relief would be that Mr Tisson is kept from the judgment seat. If his claim were patently strong, this would potentially to be a considerable injustice. If it were patently weak, it would be a matter which would reflect in the Respondent's favour, since it is onerous to be compelled to defend a weak case with little prospect of recovering costs. It is observed that the Respondent provided a detailed response, setting out (amongst other matters) the content of numerous letters that it sent to Mr Tisson in connection with its attempts to contact him, find out where he was and organise a disciplinary hearing. Mr Tisson up until today had only advanced that he did not receive the letters. During the course of this review hearing he asserted that he had moved away from home and was staying elsewhere, in rented accommodation. He had not arranged to pick up his post or to have it forwarded. Mr Tisson suggested that he had told his manager, but that would be the manager who had already left. And even had he done so, it does not appear that he had formally notified anyone within the Respondent of his new address. In the circumstances, it appears that it will be accepted that the Respondent did send the letters which they say they sent. This will have the effect of strengthening their reliance on the reason for the dismissal (unexplained absence) and the apparent reasonableness of their doing so. In summary, Mr Tisson's claim is not one which impresses at this stage as a strong case: rather, the reverse."[26]In paragraph 15, the Tribunal concluded:
"… that it would be onerous for the Respondent to face this claim, that there is no real prospect that the Respondent would ever recover the additional costs and expenses incurred in respect of Mr Tisson's twofold failure to comply with the original order and the 'unless' order; that the strike out order (judgment) was properly made and that Mr Tisson [the Claimant] has not met the burden of persuading the Tribunal that it should be set aside on review and that his claim should be reinstated."
The judgment states that the Claimant satisfied the Tribunal that it would have been more difficult for the Claimant than for some other Claimants to comply with Tribunal orders but states that it does not appear that he made any real attempt to do so and that the Tribunal is not persuaded that there was any proper reason for the non-compliance, save a casual approach to the demands made by the litigation. Paragraph 15 continues:
"Mr Tisson has not been apologetic and has not demonstrated that he would rigorously comply with our orders in the future. Indeed, his representative started by saying that they were surprised that the Respondent was even objecting to their application for review of the strike out judgment. Orders are intended to be complied with: the dates are deadlines, not aspirational goals. Those who do not comply fail at their peril."
The Submissions[27]Mr Kennedy submitted that the refusal to reinstate the claim and set aside the strike out was not proportionate and caused a massive injustice to the Claimant, who had, as the Tribunal stated in paragraph 14(i), been kept from the judgment seat. He submitted that the Tribunal had not considered appropriate alternatives to strike out, in particular, costs.

(i) stated that:

"In summary, Mr Tisson's claim is not one which impresses at this stage as a strong case: rather, the reverse."
Mr Kennedy suggested that the Chairman might not have fully understood or taken into account the powers she had in relation to costs and he also relied on what he stated were inappropriate remarks made by the Chair and her handling of the review hearing. He did not allege any bias or discrimination but he submitted that the review hearing departed from what Mr Kennedy described as "best practice". He in particular relied on the reference in paragraph 12 of the Decision to the fact that there were other cases waiting to be heard by the same Chairman on the date of the hearing as indicating that it was a busy day and the Chairman made an unforced error and may have had an "off-day". The reference in the judgment was in the context of the late delivery by the Respondent of the bundle and to the fact that the Claimant had made no application for an adjournment, which could have readily been granted because there were other cases which could have been dealt with. I do not consider that this remark shows in any way that the Chairman might have been having an "off-day".[28]Secondly, Mr Kennedy relied on the reference in paragraph 15 to the fact that the Claimant had not been apologetic and had not demonstrated that he would comply with orders. He noted that, at paragraph 5 of his Skeleton Argument for the review hearing, it is stated that the Claimant offered a full and unreserved apology for not complying with the order and that he had not breached any orders regarding this appeal. Mr Kennedy submitted that it was "absolutely outrageous to put this in the judgment". Mr Kennedy also referred to the balance of justice and submitted that in this case the injustice to the Claimant of being kept from the judgment seat outweighed the interests both of the administration of justice in relation to the Tribunal's time, referred to in paragraph 14(g) of the judgment and the injury to the other party.[29]In a number of respects, Mr Kennedy's submissions went beyond the grounds of appeal. The grounds for appeal are that the Decision to uphold the judgment of the Tribunal to strike out the claim was perverse (paragraph 1), that:
"2. The effect of failure to grant the relief has been that the Appellant has been kept from the judgment seat. In her statement of reasons the Chairperson stated: 'If (the Appellant's claim) were patently strong this would potentially be a considerable injustice but if it were patently weak, it would be a matter which would reflect in the Respondent's favour'. She went on to state that the Appellant's case was 'not one which impresses at this stage as a strong case: rather, the reverse' and on that basis that it would be onerous on the Respondent to face the claim because there was 'no real prospect that the Respondent would ever recover the additional costs and expenses incurred'."
[30]In paragraph 3 it is stated that no reasonable Tribunal would have concluded that the Appellant's claim was patently weak and that Decision was perverse. Paragraph 4 submits that, in view of the fact that the Appellant had a prima facie strong case for unfair dismissal, it was perverse to conclude that the relief should not be granted because it would be onerous for the Respondent to face the claim. Paragraph 5 submits that insofar as additional costs and expenses were incurred by the Respondent, it would have been open to the Tribunal to make a costs order against the Applicant after the determination of the substantive claim. Paragraph 6 states that the conclusion that the Appellant had no prospect of recovering the additional costs and expenses was perverse because since the Appellant's prospects of success were strong, there was every possibility that the Respondent would have recovered any costs ordered to be paid. Paragraph 7 submits that the Decision was perverse because if additional costs and expenses had been incurred by the Respondent because of the Appellant's conduct of the case, these had already been incurred at the date of the review hearing. The refusal to grant the relief sought would not have prevented them being incurred.[31]I now turn to the matters that went beyond the grounds of appeal. These largely concern factual disputes. This court is not a court for the reopening of factual matters. The factual disputes that emerged during the course of the hearing concern what happened at the review hearing. They are not referred to in the grounds of appeal. There is no evidence before me as to what, in fact, occurred. Mr Kennedy and Mr Cohen's recollections as to what happened are at variance, and in those circumstances I must fall back on what is contained in the judgment. I do, however, record these factual disputes. The first is whether the Chairman said that the Claimant had a prima facie strong case. Mr Cohen did not accept that this had happened. He argued that, in cross-examination, the Claimant had accepted that he was not living at the address given and that he had not notified anyone of the different address. Mr Kennedy in reply said that the evidence of the Claimant was that he had had two addresses and that it was strange that the Respondent was not aware of those.[32]The second factual dispute concerns what is stated in paragraph 13.9. Mr Kennedy described the findings of fact in paragraph 13.9 as assumptions which the Chair was not entitled to make. The findings relate to whether the Claimant was unemployed, whether he had worked since his employment with the Respondent was terminated, and whether he would be able to meet an order for costs. None of those is questioned in the grounds of appeal. There is no basis upon which it is open to an Appellant in this Tribunal to challenge findings of fact made in that way simply in the form of submissions made by a party or by their representatives.[33]Third, it was submitted by Mr Kennedy that Ms Gay was not interested in seeing the telephone records and the medical evidence. Again, there is nothing in the grounds of appeal about this. Mr Cohen stated that he did not recall this and that the assertion was one that he first heard during the course of the hearing before me.[34]The fourth factual dispute concerns whether or not the Claimant was apologetic. Mr Kennedy relied, as I have stated, on what is contained in the Skeleton Argument before the Tribunal. Mr Cohen suggested that the Tribunal Chair was entitled to reach the conclusion in paragraph 15 because when giving evidence the Claimant had denied receiving the "unless" order and only agreed that he had it when confronted by the reference to it in correspondence by his solicitors. Mr Cohen submitted that he was caught out in a lie. Mr Kennedy's response to this concerned the Claimant's two addresses: one in Clacton, one in Croydon. But again, there is no material before me as to what was said in evidence by the Claimant and this matter is not the subject of challenge in the rounds of appeal. Much of the hearing this morning was taken up with canvassing these issues. They do not, however, assist me in considering the matter that is before me.[35]I have concluded that while Mr Kennedy is absolutely right to emphasise the perceived injustice of not allowing a claim to be considered on its merits and to succeed or fail, that the approach taken by this Tribunal Chair cannot be described as disproportionate or heavy handed. Ms Gay went through each of the CPR rule 3.9 factors and explains why she does so and their impact. She referred to proportionality in relation to factor (g), i.e., whether the trial date or likely date can still be met in relation to judicial resources. I accept Mr Cohen's submission that the CPR rule 3.9 factors are there, as Arden LJ, and, before her, Mance LJ stated, to produce structured decision making. They are there to ensure they are considered and if the overall "look see" exercise is conducted thereafter, that the proportionality exercise required has been undertaken. It is possible to conduct a proportionality exercise without referring to the word "proportionality", just as Monsieur Jourdain spoke prose without knowing it.[36]I turn to the factors relied on in particular by Mr Kennedy. First, what was said about the strength of the Claimant's case. Leaving aside the factually disputed matters, the Tribunal was entitled to take into account the fact that the Respondent had sent letters to the address given by the Claimant which he had not informed them was changed and had not heard from them. The Tribunal did so in assessing the fairness of its conduct in proceeding to a dismissal hearing in his absence. What was said in paragraph 14(i) is, as Mr Cohen submitted, a rough and ready assessment as to the likely strength of the case, having regard to the facts before the Tribunal at both the strike out and the review hearing, and the likely findings of fact in the light of the cross-examination of the Claimant in his evidence-in-chief.[37]As far as costs are concerned, the submissions on this are largely linked to the challenge to the findings in paragraph 13.9. When it was put to Mr Kennedy during the course of his submissions that paragraph 6 of his Skeleton before the Tribunal had said a costs order was not appropriate, he fairly replied that the point was that the Claimant did not wish a costs order to be made. It did not follow from that that one could not be made or that he, the Claimant, could not meet it. The absence of any challenge in the grounds of appeal or any evidence before me to show that the conclusion in paragraph 13.9 is so perverse that it falls within the limited band of factual matters upon which this Tribunal can interfere, means that this argument does not get off the ground. The submission on costs also assumed that the Claimant's case was strong and that he would meet a costs order out of the monies recovered in the proceedings. The Tribunal was entitled to take into account the position as it was then and to assess the respective prejudices then. In view of what I have said about what the Tribunal said about the strength of the case, this aspect of the argument also does not get off the ground.[38]Perhaps the most important of the reasons in CPR 3.9 are those listed in paragraphs (c) and (d); whether the failure to comply was intentional and whether there is a good explanation for the failure. I have set out what the Tribunal concluded on (c) and (d) in the relevant subparagraphs of paragraph 14 of the judgment. This was not a deliberate breach of the rules in the sense that the Appellant/Claimant simply decided willy-nilly for no reason that he was not going to comply. It appears to be accepted that the reason he did not do so is because he thought that the Respondent would have the material in the documents and the documents. Nevertheless, faced with an order of the court, rather than inquiring or questioning or asking, he simply decided not to comply. In that sense it is a deliberate act. It may not be as flagrant as some but it is not accidental or based on a mistake. It is a decision neither to comply nor to take any steps to check whether the fact that the Respondent has the documents. In any event, this reason cannot apply to the schedule of loss, which the Respondent could not have had. Conclusion[39]I have concluded that the Tribunal's approach to the question of setting aside the strike out and reinstating the claim is not one in which the Chair either erred in principle in exercising the discretion given to her or in leaving out of account a material consideration. Although this did not play a large part in the hearing, she refers to the fact that 1 1 / 4 to 1 1 / 2 years after the events it would be more difficult for the Respondent to compel attendance of a person who had left its employment to give evidence and that the Claimant himself, in giving evidence, did not recollect certain matters, for example, receiving the letter. These are undoubtedly factors that are relevant in this exercise: see paragraph 172 of Stolzenberg v CIBC . For these reasons, this appeal is dismissed.

order

"1. The Claimant shall by 28 th February 2007 to prepare a schedule setting out all the losses which are claimed in the proceedings. A pro forma is enclosed for completion by the Claimant. A copy should be sent to both the Respondent and the Tribunal. 2. Both the Claimant and the Respondent shall disclose to each other by 28 th February 2007 all documents in their possession and control that are relevant to any issue in the case ... 3. The Parties shall no later than 19 March 2007 prepare a joint bundle of documents ... 4. Any Person who is to give evidence before the Tribunal shall prepare a written statement containing all of the evidence he or she intends to give. These statements should be typed or legibly written and should be exchanged between the parties by 19 th April 2007." The Chairman's orders were accompanied by the usual penal notice warning the parties that non-compliance with an order may lead to the claim or response being struck out in whole or in part before the hearing. On the same day, 14 February, the parties were informed that the hearing would be on 23 and 24 May 2007 and that it had been listed for 1 1 / 2 days for its full disposal. order: paragraph 13.4. Paragraph 13.5 records the statement of the Claimant in evidence that he thought he had no relevant documentation, that he was chasing the Respondent for material which he had never received in connection with the original internal disciplinary hearing but that he had accepted, in due course, that he had documents relevant to the appeal hearing but said he did not think he had to send them to the Respondent or put them in a list because the Respondent already had them. The Tribunal records in paragraph 13.6 that it was apparent from the list of documents eventually provided that Mr Tisson had documents relating to the injury to his wrist that had kept him away from work, according to him, in August to October 2006, and that it was apparent that he had not sent them to the Respondent and that paragraph 13.6 concludes: "There was no explanation as to why he had not disclosed those".

Cited in 1 later judgment