DR C OSONNAYA v SOUTH WEST ESSEX PRIMARY CARE TRUST [2012] UKEAT 0629_11_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0629_11_2003Case No Appeal No. UKEAT/0629/11
Between
DR C OSONNAYAAPPELLANTSOUTH WEST ESSEX PRIMARY CARE TRUSTRESPONDENT
Before
Mr Justice LangstaffDate 20 March 2012
[1]APPEARANCES For the Appellant MR LEONARD OGILVY (Representative) Ogilvy & Ogilvie Associates 253 McLeod Road London SE1 0YJ For the Respondent MS ADRIENNE MORGAN (of Counsel) Instructed by: Eversheds LLP Kett House Station Road Cambridge CB1 2JY SUMMARY UNFAIR DISMISSAL A pre-hearing review, initially listed for half a day, had still not been concluded 133 hearing days later. The Claimant was not at fault in any way for this. The principal reason was her serious illness (sarcoidosis), and its consequent effects on the timetable. At a time when the Claimant's case had closed and a central witness for the Respondent was under cross-examination, with two other witnesses still to be called, the Judge of his own motion decided to consider whether he should strike out the claim on the basis that it was no longer possible to have a fair hearing (under rule 18(7)(f) of the Tribunal Rules). He saw no end to the case, and identified prejudice in the continuing cost to the Respondent and the possible absence of a witness in Tanzania. It was HELD that this approach was in error. To say that "no end was in sight" was an overstatement given the stage the case had reached; he could have but did not ask for more detailed medical material; did not sufficiently consider the use of case management powers to ensure expeditious hearing; did not appreciate the impact the determination of the pre-hearing review might have on the claim as a whole, and the basis for his decision was insufficient. THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) Introduction On 4 September 2007 the Claimant raised claims against the Respondent claiming that the Respondent was and had been her employer. The case was listed for preliminary hearing on 14 April 2008 with a time estimate of half a day. In a series of remarkable misfortunes the case has since been listed, by the calculation of the Tribunal, for 133 days, of which 32 were effective hearing days, in respect of which, I have been told by Ms Morgan, who appears for the Respondent, on her estimation only some 20 were days on which there was any progress towards a resolution of the claim. By 9 August 2011 a decision on the preliminary points arising in the preliminary hearing had not yet been reached. On that date Employment Judge Scannell at East London struck out the claim under rule 18(7)(f) on the basis it was no longer possible to have a fair hearing in the case. This is an appeal by the Claimant against that conclusion. The background[2]The claims were for unfair dismissal for making a public-interest disclosure, discrimination under the Disability Discrimination Act and a claim of race discrimination, the Claimant being of Romanian origin. Central to each of those claims was her status as employee or worker under the relevant legislation. It is not difficult to understand why the question of her worker or employment status came under question and hence for determination at a preliminary hearing, since in the Claimant's ET1 she described her appointment as having been a "Teaching Non-Medical Honorary Attachment" by agreement with the Respondent Primary Care Trust (PCT), and the Respondent averred that the agreement was for no consideration but was such as to grant her access to, and them control over her access to, material held in the Primary Care Trust for the purposes of medical research which she was then conducting for Queen Mary University College. A further twist is that she has brought other proceedings in respect of her dismissal by Queen Mary University College; those proceedings have not yet reached a final conclusion either, although a preliminary point taken by the college in those proceedings was ultimately withdrawn.[3]The Claimant has a very serious illness. Since 1990 she has suffered the effects of sarcoidosis, which is an auto-immune disease. That has the result that she is in a wheelchair, she is near-blind and has suffered from uveitis. She needs steroid therapy, she has had to undergo a colonoscopy, and she requires constant monitoring and frequent out-patient attendance. Being carer-dependent she was so often late for a 10.30am start before the Tribunal in the early days of the hearings that followed 14 April that the Tribunal put back the start of the hearing, rendering each day a shorter day. She required injections from time to time during the day. On one occasion she lost her voice. There is no indication in the Tribunal decision of anything other than sympathy for the conditions from which the Claimant has genuinely suffered.[4]It was as a consequence of those conditions, in the view of the Employment Judge, that he came ultimately to the conclusion that no fair hearing would be possible, because he could not predict when any such hearing might fairly be concluded, and he had in mind the requirement that a hearing should be concluded within a reasonable time.[5]The preliminary hearing was itself complicated by the fact that at it the Claimant produced a bundle of documents. Amongst them was a letter from a Dr Padki of the Respondent. That, according to the Tribunal, was supportive of her claim to be genuinely an employee. When the Respondent's lawyers had taken instructions, they asserted that the document was not one of Dr Padki's making. Accordingly, it became an issue in determining the work status of the Claimant whether the document was genuine, as she asserted, or a forgery, as the Respondent asserted.[6]Further time was lost because of the particular difficulties that the Claimant had in funding and securing consistent representation. By my calculations, not disputed before me, the Judgment shows that over the period of three-and-a-half years since the claim began the Claimant has had no less than six representatives, if one includes her acting for herself with the assistance of her husband as a self-represented person. On occasion that quite properly necessitated an adjournment of anticipated proceedings.[7]Other anticipated hearings had to be adjourned because of the unexpected illness or needs for treatment of the Claimant. On some days it was possible for other witnesses to be interposed when she was absent, but that was not always the case. Thus, having stuttered on through the evidence of the Claimant and her witnesses until the end of 2009, there was no hearing at all during 2010. On 10-13 January 2011 a watershed moment was reached: the Claimant's case finished. The Respondent's case began on 21 January. By this time the Claimant was representing herself. Dr Padki, whose evidence was plainly always likely to be in hot dispute, gave his evidence-in-chief, and cross-examination began and lasted for the first one-and-a-half hours on 23 June 2011.[8]This history omits other occasions upon which the Tribunal felt obliged, and properly so, to adjourn a hearing that had otherwise been listed. Thus serious illness affected the close family and partner of the Respondent's counsel, and the Employment Judge took a view, which has not been criticised before me, that the case would benefit by her continued presentation for the Respondent. The Employment Judge himself, on one occasion, fell ill. Much of the Judgment is taken up with an extensive recitation of all the matters that I have set out in summary. The Tribunal at paragraph 112 summed up progress to August 2011 as follows:
"In all 133 days were listed by the Tribunal for the hearing of this Pre-Hearing Review. In fact the court sat on 32 days. Even of those 32 days not all were effective. Several were lost due to the Claimant's representation difficulties and others because of her health and all were shorter than normal Tribunal days and many consisted of not more than three hours hearing. Of the other 101 days four were not used because of the unavailability of the Respondent's Counsel and one was not used because I had an ear infection. The other 96 days listed, but not used, were lost because of the Claimant's health problems. This represents 19 sitting weeks of Tribunal time."
[9]However,

the Judge went on carefully and specifically to say in the next paragraph:

"I attach no blame to the Claimant whatsoever either in respect of the delays caused by her illness or by the difficulties with representation. […] Therefore, I consider the Claimant to be blameless when deciding what I now have to do in this case."
[10]What had happened between 23 June 2011 and the date upon which the decision to strike out was made was described from paragraphs 81 to 88 of the Judgment. The Tribunal agreed on 23 June that the pre-hearing review would continue on 5 July and 1, 2, 4 and 5 August. 5 July proved unavailable because the Claimant wrote to tell the Tribunal that the hospital and community doctor's clinic had scheduled treatments for her on that date. She asked for it to be vacated, and that occurred, but the response of the Respondent to that application for that adjournment was to express in writing concern at the further delay in dealing with the pre-hearing review. It claimed that the Respondent was being significantly prejudiced by the delays, and that the repeated postponements were not in the overriding interest of the Tribunal. The Respondent reminded the Tribunal of the overriding objective to deal with the matter expeditiously and fairly. I note that is a slight mis-statement of the overriding objective, which, as set out at rule 3 of the Employment Tribunal Rules scheduled to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 , provides that the overriding objective is to deal with cases justly. That includes a number of matters, one of which is to deal with the case expeditiously and fairly, but it is right to remind myself at this stage that the overriding objective is to deal with cases justly.[11]The Respondent's solicitors concluded the letter of 4 July by saying:
"Given the Claimant's ongoing ill health and apparent reluctance to progress this matter to a conclusion, we remain concerned that she will not or cannot pursue and conclude these proceedings. […]"
[12]The Tribunal Judge made it clear that he acquitted the Claimant of any reluctance to progress the matter. He therefore acquitted her of the lack of will to pursue and conclude the proceedings; he was more concerned with her ability to do so. The case was postponed. The Judge granting the postponement was not Employment Judge Scannell. The Judge who did so invited Judge Scannell to consider the points made by the Respondent's solicitors. He did so. Having done so, he caused a letter to be sent to the parties on 12 July 2011 to tell them that at the next hearing fixed for 1 August he would consider whether a fair hearing of the pre-hearing review was or was not still possible, having regard to the overriding objective of fairness between the parties including consideration of the expenditure of resources. He directed that at least seven days before 1 August the parties should exchange skeleton arguments and any legal authorities to be relied upon.[13]When the Tribunal sat on 1 August the Claimant complained that she had had the skeleton argument of the Respondent asking that the case be struck out for less than the seven days provided. Accordingly, the Judge did not hear the argument of the parties for a further three days. The power to strike-out[14]The application was made in this case by the Judge of his own motion. He pointed out that the Respondent had not applied to strike out the Claimant's claim. The power that he focussed upon was that in rule 18(7) of the Rules. That is headed "Conduct of Pre-Hearing Reviews". Paragraph (7) reads:
"Subject to paragraph (6) an Employment Judge […] may make a judgment or order— (a) as to the entitlement of any party to bring or contest particular proceedings; (b) striking out or amending all or part of any claim or response the grounds that it is scandalous, or vexatious or has no reasonable prospect of success; […] (d) striking out a claim which has not been actively pursued; (e) striking out a claim or response (or part of one) for non-compliance with an order or practice direction; (f) striking out a claim where the [Employment Judge] or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings; […]."
[15]Sub-rule (6) provides that before making such an order notice must be given in accordance with rule 19. That notice under rule 19 is to inform the party against whom the order might be made of the possibility of such an order to give that party the opportunity to provide reasons why it should not be made.[16]The Judge considered that that Rule provided him with the power to strike out the claim if it appeared to him that it was no longer possible for there to be a fair hearing of the proceedings. He took the view, contrary to submissions made to him by a Mr Ogilvy, who was then appearing for the Claimant and has appeared before me today, that rule 18(7)(f) could be used in a free-standing manner and did not require a finding of fault in some other respect against the party who was to be struck out. He reminded himself not only of the terms of rule 18 but of the terms of Article 6 of the European Convention on Fundamental Human Rights and Freedoms . That provides, so far as is relevant:
"6.1. In the determination of his civil rights and obligations […] everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
[17]He noted later in his Judgment that a requirement of Article 6 was that a trial must take place within a reasonable time. A hearing within a reasonable time is one in respect of which the interests of both parties have to be considered; reasonableness is not a criterion that is to be satisfied purely through the eyes of one party alone. The pre-hearing review[18]At paragraphs 118 and 119 the Judge set out the particular prejudice to which the Respondent claimed the lengthy nature of the proceedings had given rise:
"118. Ms Morgan tells me that she is instructed by her solicitors that the Respondent's costs now stand at £74,000. I accept that figure. It is not challenged by the Claimant and in fact a very long time ago the Claimant told me that £50,000 which she had received from household insurance for the purposes of litigation had been exhausted on this case and her case against Queen Mary University of London. The greater part of it must have been in relation to this case in which there have been vastly more hearings. Ms Morgan said she is instructed that it is impossible to say what the ultimate cost of this case might be should it proceed to trial, but will probably be in the region of £150,000. She submits that there is immense prejudice to the Respondent in continuing with the Pre-Hearing Review and defending the claim. She says that the Respondent is a publically [sic] funded body and is finding the cost prohibitive. She reminds me that the overriding objective is to ensure that the case is dealt with fairly and expeditiously and to save expense. She submits that the expense of running the case is now such that it cannot be dealt with in a way which is proportionate to the complexity or important [sic] of the issues. She submits that there is serious unfairness to the Respondent in defending the claim. 119. Ms Morgan refers to the evidence of Ms Mhlanga. She is one of the Respondent's witnesses and the Respondent has made an application which was unsuccessful to have her evidence heard before she left the country. There can be no denying that her evidence is important. The witness's family lives in Zimbabwe which she has visited since the Pre-Hearing Review started. The Respondent believes that she has now returned to England but is likely to visit Zimbabwe again, possibly for an extended period. Ms Morgan points out that the delay in hearing this claim may well put a question mark over this witness becomes available for the Respondent whenever the time for her evidence should arrive."
[19]The Judge took account of the position that the case had by then reached. At paragraph 123 he noted that there were two further witnesses to be heard after Dr Padki's evidence had been completed, then said this:
"123. […] At the rate which the case has been progressing I find it impossible to say how much longer the evidence and submissions will take. If the Claimant were to be successful, there would then be a full hearing. Given the way in which the Pre-Hearing Review has unfolded it is impossible to say when the Pre-Hearing Review will finish and, if one could have a comparative of impossibility, even more impossible to predict how long the main action would take or when it would end. 124. In my judgment the Claimant in this case has been given every opportunity to present her case fairly. Dates have been arranged and rearranged at the Claimant's request as clearly appears from the history of this matter. The Tribunal has given priority to the hearing of this case before every other case. Every assistance by way of adjournment has been given to the plaintiff to enable her to be represented and to overcome any difficulties that she experienced when her advisors withdrew. All of this has worked only to a limited degree and this Pre-Hearing Review remains unfinished with no end in sight."
[20]I shall return to those last few words, in particular the last five, later in this Judgment. He noted that if the Claimant were to win the pre-hearing review it was impossible to say how long the trial of the main action would take, given the apparent seriousness and unpredictability of the Claimant's illness, adding:
"I do not doubt for one moment that the Claimant is eager and will do everything in her power to proceed with the case. However, it is not within her power to control the factor which has caused delays, namely her illness. Her bravery and determination are not enough."
[21]He then had regard to two letters from her general practitioner. The first, of 29 March 2011, having set out much of the condition, confirmed that the Claimant's condition, "has deteriorated"; those words were underlined by the Judge. A later letter, which the Judge determined was not a report and was entitled so to determine, was dated 6 July. That letter, from the same GP, addressed "To whom it may concern", included the following:
"I shall be grateful if this lady is considered for phased return to her employment. She has a history of various moderate to severe co-morbidities and I am glad to report she feels stronger to return to work on a phased return."
[22]The Judge felt that that did not indicate to him an improvement in the Claimant's health which might mean that the future hearings of the case would be unaffected by adjournments because of ill health. He repeated (paragraph 126) that he found it "impossible to predict any point in the foreseeable or even distant future when a trial of this claim might be likely". At paragraph 127 he took account of the expenditure of the resources of the Tribunal upon the case; that was doubtless because he paid regard to the overriding objective, which, in addition to saving expense and acting expeditiously, includes a need to save the resources of the court.[23]Then at paragraph 128, he said:
"I have asked myself whether there is a less drastic means which can be applied in order to move this case forward. Is there anything I can do other than strike out the case? I have come to the conclusion that there is not. It is not within the Claimant's power to ensure attendance. No 'unless order' or any other sanction can have an effect because in this case the basic problem lies with the state of the Claimant's health. In my judgment the unfairness and prejudice to the Respondent will continue to increase if the case continues. Furthermore, I can think of no course more proportionate to take than to strike out this claim because I consider that it is no longer possible to have a fair hearing in these proceedings."
[24]Accordingly, the Judge, upon the basis that I have identified, struck out the claim. Submissions[25]The original grounds of appeal were superseded by a more detailed document prepared once the detailed reasons for the Judgment were to hand. That set out a number of specific grounds clearly. It included reference to others rather less clearly, but which were featured to some extent in the argument of Mr Ogilvy. The first was that the Employment Judge had no jurisdiction and was thus in error of law in proceeding of his own motion to trigger the strike-out application. The argument on paper is that the Tribunal Judge in a statutory jurisdiction can exercise only those powers given to him by the Rules. Those Rules, it is submitted, are such that the power in 18(7)(f) cannot be initiated by the Tribunal Judge himself. Thus I was taken to rule 18(6), in which it is said that:
"The judgments or orders listed in paragraph (7) must be made at a pre-hearing review or a Hearing if one of the parties has so requested. If no such request has been made such Judgments or orders may be made in the absence of the parties."
In rule 19(2) there is a reference to a notice being sent. That is limited to an order to strike out a claim that has not been actively pursued, and it is suggested that other striking-out powers can only be exercised by the Tribunal upon the application of a party.[26]I cannot accept that argument. The power is conferred by rule 18(7). The reference in rule 18(6) to "if one of the parties has so requested" is phrased, in my view, such that the request relates to the occasion upon which the Judgment or order is made. That must be at a pre-hearing review or a hearing if one of the parties has requested that that be the time and place at which the issue is considered. If I did not regard the words relating to a request as referring to the location and occasion upon which the order might be made, I would anyway have inferred that because such an order might be made in the absence of the parties it might be made by a Judge of his own motion for proper cause. Notice would of course have to be given under rule 19 coupled with rule 18(6) whoever originated the hearing.[27]It does not, further, seem to me to be sensible, taking the Rules as a whole, to construe the rules as providing only that the Judge might exercise what is an important power upon the application of a party. If, for instance, a claim has not been actively pursued and has lain dormant for a year or more, it is asking too much that one party should complain of the other that he has not actively pursued it and request the Tribunal to strike out the case. In rules where much emphasis is upon ensuring that a Tribunal has the powers to dispose of cases promptly, efficiently and with the least expense and ceremony, it is appropriate in such a case to construe the power as being one that the Tribunal Judge has for himself should it be appropriate to exercise it. In that way neither party need do anything unless they wish to, upon notice being given that the Tribunal proposes to strike out a claim because there has been no action on it for such a long period of time. This example persuades me that that power at any rate can be exercised by the Tribunal Judge on his own without being inspired to do so by an application from either party. If that is the case in respect of 18(7)(d), so too must it be in respect of each of the other sub-paragraphs of rule 18(7), for there is no reason in the language to distinguish between any of them in that regard. Accordingly, I reject that first submission made by Mr Ogilvy in support of the first ground of appeal.[28]Mr Ogilvy then complained that the Tribunal had been in error of law in permitting the allegation that the letter from Dr Padki had been forged to feature in its determination of the pre-hearing review. That had prolonged the case. It was not, he submitted, a relevant or proper matter to take into account in determining whether the Tribunal had jurisdiction. I cannot agree. A decision on the question of forgery was required once a letter was produced which the Claimant asserted showed, upon a proper understanding of its terms, that she was regarded as an employee by the Respondent, and in respect of which the Respondent for its part denied any responsibility. The question of who was right as to whether the document was a false document put forward to bolster the Claimant's case or there was dishonest disowning of a genuine document by a witness for the Respondent was bound to have a significant impact upon the rest of the case once it had been determined, and would be bound to have an impact upon the determination of the preliminary issue once one accepts (see Autoclenz v Belcher & Ors [2009] EWCA Civ 1046 ) that the question of whether there is a contract of employment will require a consideration not only of the documents but of the relations between the parties at the time of entering into such agreement as there may have been in order to determine what was the genuine agreement between them.[29]Mr Ogilvy, however, did submit that the Tribunal had taken the wrong approach in concluding as it did, and had taken into account irrelevant factors or had failed to give proper weight to the factors it should have done. He emphasised that the law and authorities are replete with references to the exercise of the power to strike out being a draconian measure. It is a matter of last resort. He urged that the principles recognised in the case of Anyanwu v South Bank Students Union [2001] UKHL 14 , in particular in the speech of Lord Steyn, were applicable, in which he emphasised that there was a high public interest in favour of a claim involving allegations of discrimination being examined on the merits of its particular facts. He pointed out, this being a whistleblowing case, that in North Glamorgan NHS Trust v Ezsias [2007] EWCA Civ 330 Maurice Kay LJ had observed that whistleblowing cases had much in common with discrimination cases. Thus, he submits, policy argues in favour of a determination of the true facts if that is at all possible. The decision in Andreou v The Lord Chancellor's Department [2002] IRLR 728 was one in which the Court of Appeal allowed an appeal against a refusal to adjourn by a Tribunal that had an effect tantamount to striking out the claim, in the circumstances because the claimant could not be present to advance her side of the case and inevitably failed. There Peter Gibson LJ had said, quoting from his Judgment in Teinaz v London Borough of Wandsworth [2002] IRLR 721 :
"A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the Tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the Tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment."
[30]Thus, he submits, the principles from which the Judge should have begun were principles that fully recognised that it would be rare occasions only when it would be appropriate to exercise a power to strike out. He was critical of the Tribunal in having taken the time that it had to hear the case over the period that it had largely because, as he would submit, it was attempting to deal with the allegation of forgery as well as the questions of employment and worker status. As to that, it seems to me that the Employment Tribunal's decision, which was not otherwise open to any criticism save upon the particular decision made, which is the subject of this appeal, cannot properly be the subject of any attack. The Tribunal Judge plainly was at pains to hear the evidence when he could and the various parties were fit and able for that hearing to be conducted.[31]For her part, Ms Morgan submitted that there could be no certainty as to when there would be any further hearing. The cost to the Respondent was a matter of prejudice, but the delay in coming to a conclusion was already extensive; nearly five years had elapsed since the events that gave rise to the claim. A full hearing had not yet been commenced, if ever one would be; the preliminary hearing had not ended. This was despite the Tribunal Judge saying, (as was the case, she submitted) that every allowance had been made for the Claimant's condition and every proper attempt to accommodate it. The Judge had, she submitted, rightly directed himself as to the draconian nature of striking out (see paragraph 122). He had taken into account the submission that he should not strike out the discrimination claim (see, also, paragraph 122). He was careful not to blame the Claimant and careful to analyse the medical evidence, such as it was, that was put before him. The finding to which he came of impossibility of prediction of the eventual trial of the claim betrayed no error of law. The view at paragraph 128 that no unless order could have an effect did not, as Mr Ogilvy had submitted, confine itself to an unless order, but it is plain that the Judge there considered whatever means were available within the armoury of powers for the Tribunal to secure a fair result. He therefore correctly identified what was or was not proportionate to the decision that he was to make, and his conclusion could not be faulted. Discussion[32]The draconian nature of the exercise of the power to strike out is clear. It is very much a last resort. The real question here is identical to that which was identified by Elias LJ in the case of Abegaze v The Shrewsbury College of Arts and Technology [2009] EWCA Civ 96 at paragraph 21, namely whether there was an inordinate, and in his case culpable, delay such as to create a substantial risk that a fair hearing could not take place, which places the issue fairly and squarely under rule 18(7)(f). In the Abegaze case, as it happens, in which the court thought the Tribunal Judge had not properly considered the relevant matters to which he should have had regard in exercising his powers, there was a question whether the Claimant had conducted himself in a blameworthy manner. That was a case in which the Claimant had already succeeded on an issue of liability. What remained to be tried were therefore issues of remedy, but the Claimant there had failed to co-operate and had compounded that failure by a tendency to appeal virtually each and every adverse decision. That prevented any fair trial taking place whilst the refusal to co-operate continued. Nonetheless the conclusion of the Court was that that was not an irreversible position. As to principle, it was noted that it was necessary to establish, again, in the circumstances of a case such as the one before the Court of Appeal, that the conduct complained of was such that the result of the conduct was that there could not be a fair trial and that the imposition of the strike-out sanction was proportionate. If some lesser sanction was appropriate and consistent with a fair trial, it was observed, a strike-out should not be employed.[33]The talk there of sanction is reflective of language used in many of the cases, for, as Mr Ogilvy points out, it is difficult if not impossible to find an authority in which the claimant has not been in some respect or other held to be at fault and the strike-out power has been exercised as a consequence. In Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684 the headnote rightly encapsulates the leading Judgment of Sedley LJ in stating:
"The power of an Employment Tribunal under Rule 18(7) to strike out a claim on the grounds that an applicant has conducted his side of the proceedings unreasonably is a draconic power not to be too readily exercised. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps or that it is has made a fair trial impossible. If these two conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. This requires a structured examination. The question is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take account of the fact, if it is a fact, that the Tribunal is ready to try the claims or that there is still time in which orderly preparation can be made."
[34]It is plain that that too looks to the use of the strike-out power as something that should aid rather than deny justice to the parties. Much of the argument has centred upon the case of Peixoto v British Telecommunications PLC UKEAT/0222/07, 22 January 2008, a decision of this Tribunal presided over by HHJ McMullen QC. That was a case in which, unlike the present, no hearing of any evidence had ever begun. Thus if the Abegaze case is to be distinguished factually from the present, because that was a case in which the liability issue had been tried and determined, and what remained was remedy, and if that was on one side of the spectrum from this case, then, Mr Ogilvy submitted, this case was on the other. The Tribunal presided over by Judge McMullen upheld the entitlement of the Employment Judge on the facts of that particular case to come to the conclusion he did. The claimant suffered from chronic fatigue syndrome. The Employment Judge concerned, rightly in the Appeal Tribunal's view, concluded on the evidence before him that as each hearing was approached the claimant's condition worsened; thus it seemed that any Tribunal hearing was to risk an exacerbation of the claimant's condition. The legal principles to be applied were those identified in the James case and summarised in the headnote to which I have referred. In that case the Tribunal had considered every aspect to which the law would direct them.[35]In the very last paragraph the Judge made reference to his own decision in the Appeal Tribunal in the Abegaze case, which had been to the same effect; that is, that the Judge's power had been properly exercised. It may therefore be suggested that the Judge's decision in Peixoto has in some respect been qualified by the Court of Appeal's disapproval of his own decision in Abegaze . However, in my view, each of the particular cases to which I have been referred inevitably was decided upon its own particular facts, against a background of principle. The principle in the Peixoto case, being derived from James , was no different from the principle applied in Abegaze even if the result in the particular circumstances of the case did differ. It is a reminder that what matters in a case is the principle it establishes rather than the particular factual illustration of the application of those principles.[36]Against that background of case law it seems to me that the Employment Judge was right to focus as he did in paragraph 128 in asking whether continuing would cause such unfairness and prejudice to the Respondent that a fair trial was no longer possible. Standing back, this is not a case in which there had been no hearing, nor was it a case in which any stage of the hearing had been fully concluded, but it is a case in which there had been progress; slow progress, but progress nonetheless. The state that the case had reached was one in which all that remained for the preliminary hearing to be concluded was for two witnesses to be fully cross-examined and for the cross-examination of Dr Padki to be completed. The Claimant had the advantage of being represented by Mr Ogilvy by the time of the application to strike out. Although there had been changes in her representation before, there is no evidence that the Tribunal here had regard to what her future representation might be. It is easy to see that her own personal presence at a continued hearing would not be a necessary requirement of justice if the exercise of case management powers proportionate to the issues and the amount at stake were properly to be exercised in accordance with the overriding objective. There seems no reason to me why, with appropriately robust case management and, if necessary, guillotining of questioning, the Respondent's evidence could not be concluded and examined on behalf of the Claimant either by Mr Ogilvy or, should it be the case, by her husband, and that completed within a reasonable time.[37]The decision made was, in short, made because the Judge saw no end to the case. When he said at paragraph 124 that the pre-hearing review remained unfinished with no end in sight, he was expressing despair. It is a conclusion that, in my view, is overstated. The end would have been in sight if the Judge recognised that he had case management powers that would enable him to bring it home within a short period of time. I appreciate that at this appellate level it is sometimes very difficult to recognise the particular difficulties that Tribunal Judges at first instance may be faced with. I recognise the force of that which Judge McMullen said in Peixoto at paragraph 48, to the effect that the decision as to whether a fair trial is possible is under rule 18 given to the Employment Tribunal, and the decision of such a Judge must be entitled to respect, but in the circumstances of this case I cannot see that the view to which he came was entitled to be expressed in such absolute terms as it was. In my view, that was an error of overstatement and one that plainly had a reflection in his ultimate conclusion.[38]As to the unfairness and prejudice the Judge here relied specifically upon the matters set out in paragraphs 118 and 119. I reject Mr Ogilvy's submission that there was no material to which the Judge referred in order to identify the unfairness and prejudice mentioned in paragraph 128. However, that prejudice was purely financial, coupled with the possibility, that there might, and no more than that, be difficulty in securing the attendance of Ms Mhlanga at trial. Financial prejudice is real prejudice, and must not be understated, but if it is weighed against the question of whether there can be a fair trial, the concentration of the court must be upon the fair resolution of the issues by evidence through the procedures of the court. Finance plays a part, but it cannot be considered to be a conclusive part where what is in issue is a power as draconian as that of striking out. Judge Peter Clark, when granting permission to appeal in this case on the sift, observed that in the light of Abegaze he was not convinced that the Employment Judge here had demonstrated sufficient reasons for striking out when mentioning the costs to the Respondent and the possible absence of the witness Ms Mhlanga; they did not seem to him to be enough, particularly where the Claimant was blameless for the delay. I agree.[39]The central question of whether the Claimant would ever be fit enough for the preliminary hearing first and then the trial to be concluded was essentially a medical judgement. Here, too, I consider the approach of the Employment Judge was in error. He recognised that it was possible for the two documents from Dr Moghal to be read inconsistently and could not have done otherwise. He was coming to a conclusion as to the future progress of the Claimant's condition and its interaction with the case, and he would need to consider whether and to what extent any case management powers would allow him to ensure that within a reasonable time the claim was determined. He could have asked questions of the doctor or required the Claimant to produce a report focussed upon matters of principal concern but did not do so. It is a matter of disappointment that very near to the end of the pre-hearing review, if my earlier observations as to the conduct of that are justified, he did not consider obtaining that material and if need be considering it further if and when there had been a conclusion of the pre-hearing review itself.[40]Thus, given the overstatement in paragraph 124, given the failure to obtain, or to ask for, and consider more detailed medical material to which paragraph 125 relates, and given the absence of explicit reference in paragraph 128 to the question of whether case management powers might be so used as to ensure that the future conduct of the case would be more manageable, in my view the Judge was in error in coming to the conclusion he did. There being here two parts to the case, the pre-hearing review followed by a potential further hearing, it ought to be recognised that the conclusion of the pre-hearing review might have a very great effect upon the trial that would follow. If the pre-hearing review were determined contrary to the Claimant, then that would be an end to the case, subject only to appeal. If the Claimant were to succeed, it is likely, from what I have been told, that Dr Padki's evidence would have been rejected. I understand that he would be an important witness, even if not conclusive, in respect of the matters to which the substantive trial would relate. Thus it would, in my view, have been sensible here to take stock of the position and the possibilities of the Claimant's health being such that the case could be brought home within a reasonable time after the conclusion of the pre-hearing review. Moreover, the experience of the first part of the hearing, the pre-hearing review, might have been such that the Employment Judge could with complete confidence have imposed time deadlines for such as examination and cross-examination that might have materially assisted the conduct of the case. Conclusion[41]Thus, given the fact that time alone could not, in my view, in this case be said to have passed to such a great extent that a fair trial was no longer possible, since no particular prejudice in terms of the effect of delay on witnesses was referred to, and only in respect of costs and potential difficulty with a witness, I have sadly come to the conclusion that in this very difficult case, in which for understandable reasons the Judge was entitled to feel frustrated, the conclusion he came to should not stand and the matter should be remitted to be continued, albeit, I would urge, with strict case management and upon the basis (which, I was assured during the submissions by Mr Ogilvy would be appropriate) that Dr Osonnaya, if unable to be present herself, would entrust the conduct of her case to a representative. There should be no particular difficulty in case management directions securing that result; if they are not observed, then sanctions may follow, but the sanction, if such it is, thus far adopted is, for these reasons, no longer to apply. The appeal is allowed.