Malik v Plymouth Hospitals NHS Trust & Others (Practice and Procedure : Striking-out or dismissal) [2011] UKEAT 0117_11_0908

EAT
Malik v Plymouth Hospitals NHS Trust & Others (Practice and Procedure : Striking-out or dismissal)
[2011] UKEAT 0117_11_0908 · 2011-08-09
[1]This case concerns case management directions including the striking out of a number of claims. I will refer to the parties as the Claimant and the Respondents. There are three personal Respondents, and the corporate Respondent, the NHS Trust. Introduction[2]The appeal is against a Judgment of Employment Judge Mulvaney sitting alone at Plymouth, registered with Reasons on 20 December 2010. The Claimant was not present and was not represented; the Respondent was represented by counsel. The effect of the Judgment was to dismiss and/or strike out all of the then live claims the Claimant had made. The Claimant appeals. On the sift of the Notice of Appeal, Cox J considered the matter could expeditiously be dealt with only by a preliminary hearing before a Judge alone. She indicated some concern about the way in which the case had been dealt with in the absence of the Claimant, who had submitted a medical certificate. She directed that the Respondent should make written submissions in opposition to this appeal. Ms Sarah Michael, solicitor, who has conduct of the case on behalf of all four Respondents, has made written submissions and has attended here today.[3]The Claimant has not attended; he made applications to postpone the hearing, which were refused at various times last week. He had agreed the date; he has given different explanations for seeking postponements last week. This morning there has been no attendance and no appearance. This being a Respondent‑free zone, I indicated to Ms Michael that I would call upon her should directions be given or if applications were to be made. I am satisfied that the Claimant is on notice of today’s hearing. He has been given a full opportunity to prepare for it, he has failed to take any of the steps required by Cox J, and has failed to attend. The Respondents have provided written submissions in opposition to the Claimant’s previous requests for postponements, which have been accepted by the court, and have attended today in order to assist the court should it be necessary.[4]This is a hearing, albeit in the absence of the Appellant. Directions were given to him repeatedly by case managers at the EAT observe both the orders of Cox J and the Practice Direction in the preparation for this appeal. The Employment Judge noted that the Claimant is intelligent and well versed in Employment Tribunal procedure, and I see no excuse for his failing to get his case ready for today. It is not in accordance with the overriding objective that case manager time in the EAT be further dedicated to this matter, and so I have coped with the court file as it is without requiring the case manager to prepare a hearing bundle. The facts[5]The Claimant is a specialist registrar cardiothoracic surgeon employed by the first Respondent from 5 November 2004. By the time of the Judgment appealed he had submitted 13 claims against it. He also named four individual Respondents, including the three in the present proceedings. The claims span a considerable period of time (some two years), and the full range of the anti‑discrimination canon in the Employment Tribunals: age, disability, religion, belief, race, and whistleblowing. The Employment Judge was well aware that these claims require sensitive treatment and only exceptionally would be struck out, since it is in the public interest in a pluralist society that discrimination claims be vindicated at a full hearing (see Lord Steyn in Anywanyu [2001] ICR 391 HL). Nevertheless, further reading of the speeches in the House of Lords show that it is correct to strike out claims where they are abusive or there is absolutely no prospect of success.[6]The Claimant’s case, or, as I would prefer to put it, campaign against the Respondent, has been waged in the Employment Tribunal over a considerable number of months and has attracted dedicated treatment by Judges, particularly in Bristol. A number of his claims were struck out by Employment Judge Mulvaney in a Judgment given on 11 June 2011, which appears not to have been appealed.[7]In order to illustrate two features of this appeal, I will draw upon the language used by the Employment Judge: the first to indicate the kind of case the Claimant seeks to make; and secondly, the approach of the Tribunal. First, then, the Claimant’s approach:
“46. The main new contention in this claim appears to be that the respondents colluded with the claimant’s former employer in Scotland and the Edinburgh Employment Tribunal to get a claim brought by the claimant in Scotland struck out. An example of the manner in which the claimant puts forward this complaint is as follows: ‘I will be calling Scottish conspiracy perpetrators and other witnesses from different parts of the UK during the hearing of this claim (Around 35-40 witnesses). (Some members of this group had got me issued a fake certificate of permission to sit the intercollegiate Examination in Cardiothoracic Surgery apart from issuing many more similar certificates to make it look that all certificates were valid which was done to cover up the actual conspiracy to throw me out of the UK…. I am not sure how to address the issue of the conduct of the Edinburgh Employment tribunal. It is a unique case where the whole of the UK is after me. It is a case of Sectarian violence and Ethnic Cleansing i.e. far more than racial discrimination. If legally possible I give here notice to at least include Edinburgh Employment Tribunal’s judge dealing with the claim no 101897/2005 as witness during the proceedings of this claim…. It seems it will not be long before conspirator’s (who have the majority and power) succeed in their mission. Initially their aim was to make me leave UK but it seems now the gear might have shifted to ensure that I leave the planet’.”
[8]As to the Judge’s approach, this can be determined by her summary in admirably concise form in the following way:
“58. The manner in which the claimant has presented his claims has lead to substantial and real challenges for the tribunal in managing the claims and for the respondent in defending them. The narratives contained within each claim are difficult to understand because they are not chronological; they contain blocks of narrative imported from elsewhere; they are sometimes incomplete; they sometimes refer to other documents which are not attached. It is an accepted part of the tribunal role where claimants are unrepresented that some assistance may be required of it in identifying the claims that are being made. However there is a limit to what can be done particularly where as here the claimant has not assisted the tribunal in that process. The claimant is under a duty to assist the tribunal in meeting the overriding objective of dealing with cases justly, including ensuring that the case is dealt with expeditiously and fairly and saving expense. The tribunal has taken proper steps to address the challenges posed by these claims in a way that has been fair to the claimant. He has been afforded opportunities to clarify his claims to ensure that they are not struck out. He has not taken that opportunity. Instead in his submissions he has referred to other incidents and invited the tribunal to cross reference his claims to establish the points he wishes to make. He did not attend the Pre-Hearing review to ensure that his points were made and understood. The allegations that he has made in his claims and in his submissions against individual respondents and others are potentially very serious yet the claimant is apparently unwilling to engage with the tribunal process to support the claims he makes and progress them to a hearing. In all the circumstances I conclude that the claims are scandalous and vexatious and should be struck out.”
[9]Given that the Claimant has not taken any time to assist the Employment Tribunal, the Judge did what she could. I have to say I am impressed by her scrupulous analytic approach to each of the claims made. She has considered each claim and against it the submissions made by the Respondent. The claims were marshalled at previous CMDs, and she has dealt with the subsisting issues in a way that is a great credit to the Employment Tribunal system, owing much to Judge Mulvaney’s rigour and nothing to the Claimant’s contribution to assisting in the administration of justice or the adjudication of his claims. The claims were either dismissed as out of time, or as duplicitous, thus scandalous and vexatious. The flavour of the claims that I have illustrated above gives substance to the Judge’s decision. I consider that the reserved Judgment is a proper response to the applications made by the Respondent and to the case management duties of the Employment Tribunal in these complex cases. I know that striking out discrimination claims is an extreme and rare measure: Abegaze v Shrewsbury [2009] EWCA 96. The Claimant has been given many opportunities to comply. There could be no fair trial of the issues in those extraordinary circumstances. He is plainly insistent upon waging a massive campaign, but he must not be allowed to do so in the Employment Tribunal, where it is plain to me none of the claims should be tried for the reasons given by the Judge. Conclusion[10]In so far as Cox J in her note was concerned that the Claimant’s condition may not have been drawn to the attention of the court, I can see no evidence of the Employment Tribunal being unaware of the Claimant’s condition. It is carefully dealt with by orders of Employment Judge Carstairs. After all, this is an NHS Trust, and no injustice was caused to the Claimant. He has exhibited, as the Judge pointed out, a constant history of failing to respond, the details of which I need not set out, but which is quite shocking (see paragraph 9 of the Judge’s order), and there can be no doubt that the Judge Mulvaney made her decision making full allowance for the fact that the Claimant was not there. As is demonstrated by his non‑attendance here today, it is characteristic that he fails to face up to the fact that he makes serious allegations against individual employees, medical practitioners and the Employment Tribunals, but shrinks away when having to justify them in open court.[11]It is in accordance with the overriding objective that no further time be dedicated to the Claimant’s campaign than is necessary to inform him of my thinking. To this end I adopt in full the submissions of the Respondent dated 13 April 2011 annexed to this Judgment. For those reasons, therefore, this appeal is dismissed. Costs[12]At this stage, the Respondent is entitled to be heard. An application has been made by Ms Michael for her costs. She recognises she does not seek costs for her attendance today, since that was not the order of Cox J, but pursuant to that order she has spent four hours in preparation of the written submissions and dealing with the correspondence. Her billing rate is £176, making a total claimed of £704. The basis of the claim for costs is under rule 34A(1), relating to the appeal being misconceived, having no reasonable prospect of success, and the unreasonable conduct of the Claimant in bringing and conducting the appeal; and secondly under 34A(2): that he has not complied with a direction of the Appeal Tribunal.[13]I am minded to make such an order, since the Claimant’s conduct falls into all of the above categories. He has failed to follow directions of the Appeal Tribunal for the preparation of the case; he has not attended in order to pursue his appeal; he has provided no skeleton argument upon which it could be based; he has not responded to the line‑by‑line critique of the Respondent in its written submissions; and his case was doomed, from the time of Judge Mulvaney’s Judgment, and then on receiving the written submissions of the Respondent. So this is a case where exceptionally I will make an order under both 34A(1) and 34A(2). I may have regard to the Claimant’s ability to pay (see 34B(2)); I am told that he is still employed by the Respondent Trust on a salary of £46,000 a year. I am minded to consider, on the information given to me, that he would have the ability to pay this. This order will take effect seven days after the transcript of today’s hearing is sent to him, and if before that time he makes written submissions in opposition to this application, I will deal with the matter on paper; in which case he must send it to the Respondent, and the Respondent will have seven days thereafter to reply in writing.[14]Ms Michael helpfully tells me that the two issues intimated by Judge Mulvaney as coming in after the date on which she was considering her Judgment have now been struck out, and so, so far as Ms Michael can tell, there is no further litigation. ANNEX TO JUDGMENT RESPONDENTS' SUBMISSIONS FOR PRELIMINARY HEARING 1 These submissions are made pursuant to the order dated 1 April 2011 on behalf of all Respondents. The Respondents submit that there are no reasonable prospects of success for any appeal. This document is provided in response to the Notice of Appeal set out in a 47 paragraph document. 2 The Respondents do not propose to respond to each paragraph as the majority do not disclose any point of law or factual basis on which an Appeal can succeed. However the Grounds of Appeal do contain a number of factual assertions which are incorrect and/or misleading. It has been difficult to respond to the Notice of Appeal as it is not clearly pleaded. 3 Paragraphs 1-2 Grounds of Appeal3.1 The claims were listed on 3 September for a Pre Hearing Review 6 to 8 December 2010. The Claimant applied for a postponement on 17 November 2010 providing a medical certificate indicating he was unfit to work as a result of a prolapsed disc. The Respondents objected on the grounds of the Claimant's history in respect of similar applications and his failure to address his fitness to attend the hearing where adjustments would be made to accommodate his condition as had occurred at a previous hearing (see attached letter dated 18 November 2010- Appendix A).3.2 Inadvertently the letter of objection was not immediately provided to the Claimant by the Respondents but it was included within the Tribunal's letter of 20 November 2010. Accordingly the Claimant suffered no prejudice by the slight delay in receiving the Respondent's letter of objection. There is no provision within the Employment Tribunal (Constitution & Rules etc) Regs 2004 ("the ET Rules 2004") that compel the direct provision of letters of objection to the parties as opposed to letters of application, pursuant to R11(4) ET Rules 2004.3.3 The Tribunal rejected the application on the basis that the Claimant had failed to explain why the condition would prevent him from attending a hearing (Appendix B). The Claimant renewed his application but failed to explain the basis on which his condition would prevent him from attending the hearing with adjustments being made for him as required. The Tribunal again rejected the application on 23 November and advised that the Claimant should provide supporting medical evidence as to whether he was fit to attend a hearing where he would be permitted to sit, stand or stretch as necessary should he renew the application (Appendix C). The Claimant failed to provide such evidence and the hearing proceeded on 6 December 2010. The Claimant failed to inform the Tribunal of his non-attendance either in advance or during the course of the hearing.3.4 Miss Michael, the Respondents' instructed solicitor, did not hire a 'bogus caller' as alleged within paragraph 2 or at all. The Claimant is invited to withdraw such unfounded and inappropriate assertions as to the professional behaviour of Ms Michael. Further it is denied that Miss Michael has, as alleged, misrepresented any conversation between her and the Claimant (see copy letter March 2010 dealing with a similar allegation made by the Claimant- Appendix D). 4 Paragraph 4 Grounds of Appeal 4.1 The previous ET claim brought by the Claimant was a claim brought pursuant to Regulation 8 of The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations. It is denied that the evidence provided by Mr Unsworth-White (Second Respondent) was perjured as alleged or at all. The Claimant has been asked within Responses submitted to the multiple claims before the Employment Tribunal to substantiate the basis of this assertion or withdraw the allegations. The Claimant has failed to properly particularise this serious allegation. 5 Paragraph 5 Grounds of Appeal5.1 The Claimant does not have counsel or solicitors instructed in this matter.5.2 The Respondents are unaware of any connections between the Respondents and members or judiciary sitting at Exeter Employment Tribunal. It is accepted that those residing in the immediate environs of Plymouth may have had cause to use the health services provided by the First Respondent. 6 Paragraphs 6 – 8 Grounds of Appeal 6.1 The Claimant appears to be acting under the misapprehension that the hearing scheduled for 6-8 December 2010 took place on another date. We believe this may stem from a typographical error within the Reserved Judgement dated 20 December 2010 which states at page 1 that the hearing was on 13/12/2010. This is incorrect. The hearing was scheduled for three days, 6 - 8 December. A full hearing took place before EJ Mulveney on Monday 6 December. The Respondents attended and were represented by Mr Watson, Counsel and Ms Michael, Solicitor. The Claimant failed to attend or give explanation for his non-attendance. 7 Paragraphs 9-13 Grounds of Appeal 7.1 These paragraphs do not identify any discernible points of law. 8 Paragraph 14 & 31 Grounds of Appeal8.1 The Respondents are not aware of the content of the claims pursued by the Claimant before Edinburgh Employment Tribunal in respect of his previous employment by Lothian Health Board other than an awareness of a claim of race discrimination which had been listed for approximately 60 days, requiring the Claimant's release from his duties on behalf of the First Respondent and consequently their involvement in the listing of the matter. The Respondents' representative subsequently became aware that the claim had been struck out during early 2010.8.2 The Respondents are not, nor have been, the agents of a third party in the management of the Claimant's employment The Claimant has failed to substantiate the basis of such an assertion. 9 Paragraphs 15, 21, 24 & 27 Grounds of Appeal9.1 The Claimant refers to 'collusion between the ET Exeter and Respondent' (para. 15) and refers to 'bias' (para 21) and 'colluded with the Respondents .. .' (para 27)9.2 The Respondents would ask that the Claimant be advised of the provisions of paragraph 11 Practice Direction and be ordered to provide an affidavit setting out full particulars of all allegations of bias or misconduct relied upon. This will enable the Employment Judge to comment pursuant to Paragraph 11.3.3. As an Officer of the Court Ms Michael denies any allegations of inappropriate behaviour on her part. Claim No. 1702765/2009 10 Paragraphs 16 & 17 Grounds of Appeal 10.1 The Respondent does not agree that the Claimant is accurate in his description of the CMD hearing in September 2009. Employment Judge Sara identified that there were jurisdictional issues as to time limits and compliance with s32 Employment Act 2002 to be determined at a Pre Hearing Review (Case Management Order dated 30 September 2009 - Appendix E). During the course of the hearing the Claimant asked what was the appropriate approach should he become aware of new claims and he was advised of the three month time limit. The Claimant was not advised to raise further claims every three months as claimed. 11 Paragraphs 20 Grounds of Appeal11.1 This claim was a mirror of Claim 1701096/2009 which had been struck out following a full two day hearing on 3 February & 3 June 2010. All issues regarding this claim had been properly considered during the course of that hearing. The Claimant had attended on 3 February 2010 but chosen not to attend on 3 June 2010. We attach a copy of the Reserved Judgement of Employment Judge Mulveney dated 10 June 2010 (Appendix F)11.2 The Respondents attended at the hearing on 6 December 2010 although the Claimant chose not to attend. The hearing before Employment Judge Mulveney was thorough and comprehensive with all issues being properly considered. In the absence of the Claimant this was done by reference to the pleadings, the skeleton arguments submitted by the parties and the bundle of documents to which the Claimant had substantially contributed.11.3 The Respondent would aver that paragraphs 13-25 Reserved Judgement dated 20 December fully demonstrate that all relevant issues were considered by the Tribunal including the exercise of its discretionary powers. Claim No 1702839/2009 12 Paragraphs 22 – 27 Grounds of Appeal12.1 The Respondents would aver that the Grounds of Appeal do not disclose any point of law.12.2 The Respondent would refer to paragraphs 26 to 42 Reserved Judgement dated 20 December 2010. The issues were properly examined and a considered judgement provided. The Claimant chose not to attend to put forward arguments on his behalf despite knowing that the hearing was effective. The Claimant had failed to substantially address these issues in the Skeleton submissions provided to the Tribunal (Appendix G) Claim No 1703446/2009 13 Paragraphs 28 – 30 Grounds of Appeal13.1 The Respondents would aver that the Grounds of Appeal do not disclose any point of law.13.2 The Claimant was ordered by the Tribunal (Employment Judge Goraj) within the Case Management Order dated 14 April 2010 to identify those elements of the multiple claims which could be consolidated/withdrawn on the basis of duplication in order to clarify the extent and nature of his claims. The deadline was 11 June 2010 but was subsequently extended to 18 June 2010. The Claimant refused to provide a document which assisted in this regard (Appendix H). 14 Paragraphs 31 – 33 Grounds of Appeal14.1 The allegations made by the Claimant regarding the Respondents and his previous claim before Edinburgh Employment Tribunal were considered by the Tribunal during the hearing. The Tribunal had before it the skeleton arguments of the Claimant and Respondents together with a full bundle of documents which included documents relating to this issue which the Claimant had requested be included. This is evident from the Reserved Judgement paragraphs 42 to 51.14.2 The Claimant chose not to attend to put forward any oral arguments and therefore cannot benefit from this in arguing that the issues were not properly considered. Claim Nos: 1703451/2009, 17000712010, 1700103/2010, 170010412010, 170014412010, 1700456/2010 and 170595/2010 15 Paragraphs 34 to 47 Grounds of Appeal15.1 The Respondents would aver that the Grounds of Appeal do not disclose any point of law.15.2 The issues were before the Tribunal who had the benefit of skeleton arguments on behalf of the parties together with an extensive bundle of documents.15.3 Despite the Claimant's failure to attend the hearing the Tribunal properly considered the preliminary issues before it in respect of these claims and all relevant submissions/documents. The Respondents refer to the Reserved Judgement paragraphs 52 to 58. Bevan Brittan LLP 13 April 2011