Hemming v British Waterways Board (Practice and Procedure : Striking-out/dismissal) [2013] UKEAT 0102_13_1609

EAT
Hemming v British Waterways Board (Practice and Procedure : Striking-out/dismissal)
[2013] UKEAT 0102_13_1609 · 2013-09-16
[1]This case is about the treatment by a Tribunal of an application to adjourn, the immediate striking‑out of the claim and the award of costs against the Claimant in the sum of £10,000. This is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We shall refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a Judgment of an Employment Tribunal under the chairmanship of Employment Judge Lloyd sitting on 16 April at Birmingham and sent with Reasons to the parties on 17 April 2012. The Respondent was represented by its solicitor, who today instructs Mr Heppinstall of counsel; the Claimant had not been represented and, as will appear, did not attend, and today has the advantage to be represented by Mr Kamara, providing his services under FRU.[3]The Claimant made a very substantial set of claims which were due to be tried over eight days. There was a vast hinterland of interim applications and measures, and it is fair to say that the Claimant did not acquit herself well in those early stages, but the case was ready for trial thanks to the good offices of the Employment Tribunal. The Respondent denied the allegations, which were principally of race discrimination. The issue, however, at the Tribunal was to decide what to do when the Claimant did not turn up. We infer the Tribunal refused to adjourn and acceded to an application by the Respondent to strike out the claim as not being actively pursued and as a result of the Claimant’s unreasonable conduct. The Claimant appeals against that Judgment.[4]The Employment Tribunal Judge was asked to review the matter in the light of material relating to the Claimant’s medical condition, which he did in a decision sent with Reasons on 1 June 2012. He decided that this application did not meet any of the sub‑rules in rules 34 and 35 and rejected it. There is no separate appeal against that review Judgment; essentially, it confirms the thinking of the three‑person Tribunal. Directions sending this appeal to a full hearing were given at a rule 3(10) hearing by Langstaff P, who considered that the response of the Tribunal was not proportionate in striking out the claim and ordering costs, and so the case comes to a full hearing today. The legislation[5]The relevant provisions of the legislation are found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations .

(c) and (d):

“(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order— […] (c) striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (d) striking out a claim which has not been actively pursued; […].”
[6]Rule 17(6) requires notice to be given, and the notice requirements are expanded in sub‑rules 19(1) and (2), which say this:
“(1) Before a chairman or a tribunal makes a judgment or order described in rule 18(7) … the Secretary shall send notice to the party against whom it is proposed that the order or judgment should not be made. The notice shall inform him of the order or judgment to be considered and give him the opportunity to give reasons why the order or judgment should not be made. This paragraph shall not be taken to require the Secretary to send such notice to that party if that party has been given an opportunity to give reasons orally to the chairman or the tribunal as to why the order should not be made. (2) Where a notice required by paragraph (1) is sent in relation to an order to strike out a claim which has not been actively pursued, unless the contrary is proved, the notice shall be treated as if it were received by the addressee if it has been sent to the address specified in the claim as the address to which notices are to be sent (or to any subsequent replacement for that address which has been notified to the Employment Tribunal Office).”
[7]Thus there is a bespoke rule tailored to the non‑pursuit ground for striking‑out relating to the service of its order. The Tribunal expressly made the orders that it did under rule 18 and not under its powers at a hearing under rule 27(5), which enables it to deal with the matter without a party attending by way of dismissing or disposing of the proceedings. But if it is to do that, it must first consider any information in its possession that had been made available to it by the parties (see rule 27(6)). The facts[8]The Claimant had applied on a number of occasions to stand the case out, but this was refused. One of the grounds was her medical condition. The case was due to start on 16 April; the Claimant did not attend, and the Tribunal made the following findings:
“6. On the morning of the hearing, the tribunal attempted to contact the claimant on her mobile telephone number at 10.00am. A voicemail message was left for her. There was no response. An email, timed at 1210pm, was sent to the claimant’s email address. It informed her that the respondent’s solicitor had applied to the tribunal to strike‑out her claims in the circumstances of her non‑attendance. The tribunal would not hear that application until 2.00pm. She was requested to attend. The tribunal subsequently received from her former husband a brief email timed at 12.02pm on 16 April. He stated she had been taken to the accident and emergency unit that morning. There followed an exchange of emails with Mr Hemming, who is a serving MP, and a telephone call from him at 1345pm. He was copied the email notice of the strike out application by the respondent. He was requested to facilitate the production to the tribunal of a medical report of the claimant’s admission to hospital. He refused stating he had other priorities. He stated that that his personal knowledge of his wife’s position was given to him by her over the telephone. No telephone call was received by the tribunal from the claimant. 7. The tribunal heard the strike‑out application made by Miss Lovell, the respondent’s solicitor, at 2.15pm on 16 April. The tribunal has felt very serious concern about the conduct of the claimant in her failure to attend the hearing and to make out any corroborated grounds for her absence and also her total failure to communicate with the tribunal. Considerable inconvenience has been caused to the respondent, and to the witnesses who have attended for the hearing; more especially those compelled by witness orders and who have travelled long distances. We also find that Miss Lovell has demonstrated a course of unreasonable conduct and lack of co‑operation and engagement on the part of the claimant in the management of these proceedings leading to the trial dates. 8. We find that grounds have been shown by the respondent to strike out the claimant’s claims under Rules 18(7)(c) and (d). The claimant has failed actively to pursue her claim by her failure, without corroborated reason to attend the hearing to put her case. Further, her conduct generally in these proceedings has been wholly unreasonable in our view. 9. We believe that the circumstances with which we are faced on 16 April 2012 represent a scandalous waste of money, of the public purse as well as of the respondent’s. The claimant has abused and disrespected the tribunal as she has the respondent and also the witnesses she compelled to attend. The respondent’s solicitor has asked for an order for costs to be paid by the claimant, pursuant to Rules 38 and 40. We grant such an order. It is entirely just and equitable that the claimant bears the costs of the respondent in the circumstances. The respondent’s total costs are well in excess of £20,000.00. We have a summary assessment power up to £10,000.00. We exercise that to its maximum extent in this case and we are firm in the view that we are utterly justified in so doing.”
[9]Having made those decisions, the award was made of £10,000, which was within the band of award that could be made at the time. The Employment Judge at the review, whose Reasons we pay attention to in respect of this, included his analysis of material produced by the Claimant. She brought material that said new evidence had become available, and she could not obtain written corroboration of her medical conditions within the timescales; evidence has now been obtained. The Judge decided as follows:
“6.3 I consider that the findings of the tribunal at paragraphs 1‑10 of the reasons forming part of the judgment are self‑explanatory to all parties. 6.4 There was no notification whatsoever from the claimant herself, yet she was able it seems to verbally communicate in detail to her husband. I conclude that independent written medical evidence could have been provided to the tribunal had the claimant or her husband so wished that to be produced. 6.5 I refuse the claimant’s application for a review of the said judgment. The claimant has provided no new evidence in the context of the matters alive at the hearing on 16 April 2012 which could not have been known or produced at the time had the claimant been so minded.”
[10]The material then available to the Judge included the admission notes from University Hospitals Birmingham, which include a report dated 16 April 2012; it is the discharge letter and therefore was completed on the Claimant’s discharge. From the chronology, this must have been late in the afternoon on 16 April, and the Claimant through Mr Kamara has told us she was discharged at about 7.00pm. This is what the details show. She had non‑specific chest pain, and there is this:
“This pleasant 53 year old lady was admitted to hospital on 16.4.12 with chest pain. This chest pain was constant in nature from 3am until it subsided at midday of the same day and was sharp at the left lateral chest wall and radiated to the rest of the left chest where it became a dull ache. She had no associated symptoms, has never had pain like this left and has no family history of cardiac disease. During the course of the chest pain she took paracetamol and ibuprofen and received 300mg aspirin on arrival to hospital. Her ECG showed normal sinus rhythm and no acute changes both on the initial admission and 4 hours later. Her bloods were unremarkable and she had a negative high sensitivity troponin level. A chest x‑day also did not demonstrate any acute pathology. Her pain has now settled and, given her normal investigation results and atypical history for acute coronary syndrome, we are happy to discharge her home.”
[11]The admission to the hospital followed a call she made to NHS Direct at about 8.30am, who directed an ambulance go and get her; this was done, and she was admitted into A&E. The pain that the doctor had described as emanating at 3.00am was communicated to her husband, who was not living with her, at about 7.00am, but he indicated that he could not get through to appointments with Dr Tooze‑Hobson (who we take it is the GP) when he phoned at 7.09am.[12]The chronology, therefore, is that the Claimant did not herself communicate directly with the Tribunal, but the Tribunal appears to have accepted Mr Hemming as a conduit for the request that was made. The Tribunal then communicated directly with the Claimant by email at about 12.10pm on 16 April, saying, “The Respondent’s solicitor has made an application that your case be struck out forthwith”, and the Judge directed that the Claimant should attend at Phoenix House at 2.00 pm to respond to “the application to strike out your case with an order for costs against you”. It is unlikely she saw this. When it became clear that Mr Hemming was reporting to the Tribunal that the Claimant had been taken into Queen Elizabeth Hospital and she was likely to be admitted for one night the Tribunal sent to him the email it had sent to the Claimant. The Claimant, on Mr Hemming’s material, therefore, was in QE Hospital and not at the address she had given, which was her email address and her physical address, and in this next email the Tribunal said:
“Unless written medical confirmation, signed by a doctor setting out the circumstances of Mrs Hemming’s admission to Accident and Emergency can be provided, the tribunal will proceed as set out below.”
[13]Mr Hemming, who is an MP, gave a full account of her admission following her telephoning NHS Direct and the call of an ambulance. He said this:
“It is currently 13.33. I do not see it as being practical to obtain a document signed by a doctor and submit it to the tribunal by 2pm. Hence I will not be doing anything about this.”
[14]He also stated that he had parliamentary duties. There may be some slight divergence in the times set out for technical reasons, but in any event it was all around the time between a little after noon and 2.00pm. The Claimant’s case[15]On behalf of the Claimant, three propositions are made. First, the Tribunal was wrong not to follow the Judgment in Teinaz v London Borough of Wandsworth [2002] ICR 1471 and to accord the Claimant an opportunity to address the strike‑out. Further, the Claimant’s case should not have been struck out for unreasonable conduct without further investigation, and it should not have been struck out for non‑pursuit of the case in the circumstances which were outside her control. As to the costs, the only reason that triggered the costs order was the failure on that day to attend, and the costs should fall with the decision to be made. The Respondent’s case[16]On behalf of the Respondent, it is contended that the EAT should not intervene in the exercise of the discretion of the Tribunal in refusing an application to adjourn. The test is not one of unfairness or proportionality but whether the decision made by the Tribunal in this case was unreasonable in the sense of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 . The Claimant made no contact whatever with the Employment Tribunal. Further, the evidence that was adduced in the application for review was not new. As to costs, it is accepted by Mr Heppinstall that this decision stands or falls with the decision, but he reserved his position on whether costs should be sought in respect of the single day. The legal principles[17]The legal principles in respect of a strike‑out are first provided in Teinaz :
“21. 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. 22. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. I make these comments in recognition of the fact that applications or an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.”
[18]In Blockbuster Entertainment v James [2006] IRLR 630 CA it is clear that there must be unreasonable conduct that has taken the form of deliberate or persistent disregard or a failure to follow procedural steps. It is, as Sedley LJ there described it, a draconian power not to be readily exercised. It is still necessary to consider whether a strike‑out is the proportionate response to the misconduct in question. The same view was reiterated in Abegaze v Shrewsbury College of Arts & Technology [2010] IRLR 238 CA, where Elias LJ said the following:
“In the case of a strike out application brought under paragraph (c), it is well established that before a claim is struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct of the proceedings; that the result of that 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 is appropriate and consistent with a fair trial, then the strike out should not be employed.”
[19]As to active pursuit, Abegaze is a good indicator, because in that case the failure by the claimant to submit to the orders of the court and be medically examined, the subject of the strike‑out, was rescued by Elias LJ holding that an unless order should have been given. As to whether the EAT should intervene, the Court of Appeal has made it clear in O’Cathail v Transport for London [2013] ICR 814 that this is a power that will be very sparingly exercised: see the principles set out by Mummery LJ in indicating that the test is not what is unfair but what is wholly wrong: “1. This appeal arises from refusals by an employment tribunal to grant late applications made by an unrepresented claimant for an adjournment of the full hearing of this case. The date had been re‑fixed nearly four months before, following a successful late application by the claimant for the postponement of an earlier fixed hearing date. Several days had been set aside for evidence and argument on his disability discrimination claim. The ground of his applications, as on the previous occasion, was that he was medically unfit to attend the hearing. The Tribunal proceeded to hear the case in his absence and to dismiss it. A judgment, separate from the later final judgment on the merits of this case, explained in detail the cumulative reasons for taking the exceptional course of hearing and deciding the case in the claimant’s absence. 2. Applications to adjourn or postpone hearing dates fixed for cases are routinely received by the employment tribunal, often at short notice. If granted, the effect is to inconvenience other users of the tribunal by disrupting the efficient listing and disposition of cases with a consequent loss of valuable hearing time. Other consequences are irrecoverable costs incurred by the opposite side, which has spent money preparing for an abortive hearing, and considerable delay in the final determination of cases, as the hearing have to be re‑fixed for distant dates. […] 39. I have reached the conclusion that this appeal should be allowed on the short ground that there was no error of law in the judgment of the employment tribunal refusing to exercise its broad discretion to grant the adjournments requested. […][44]The crucial point of difference from Terluk [ v Berezovsky [2010] EWCA Civ 1345 ]’s case is that decisions of the employment tribunal can only be appealed on questions of law, whereas under the CPR the appeal is normally by way of review and the decision of a lower court can be set aside, if it is wrong, or if it is unjust by reason of a serious procedural or other irregularity in the proceedings. In relation to case management the employment tribunal has exceptionally wide powers of managing cases brought by and against parties who are often without the benefit of legal representation. The tribunal’s decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. That is the approach, including failing to take account of a relevant matter or taking account of an irrelevant one, which the Employment Appeal Tribunal should continue to adopt rather than the approach in Terluk as summarised in the headnote [2012] ICR 561 quoted above. It is to be hoped that this ruling will put an end to the ‘apparent confusion in authority’ on the point pointed out by Wilkie J in Riley v Crown Prosecution Service (unreported) 13 June 2012, at paras 55‑56.” Discussion and conclusions[20]Both parties agreed that if there were an error in the Employment Tribunal Judgment, it was not proportionate to send this back to the Tribunal and we should decide the matter ourselves; that was a very pragmatic view. We also put to counsel the notice requirements in rule 19. We hold that notice was not given pursuant to rule 19. The best that can be said is that there was a short summary of an oral application about to be made by the Respondent’s solicitor. The two grounds upon which the Judgment is made against the Claimant were not notified to her in advance. These are non‑pursuit of the claim and unreasonable conduct. The nature of the conduct appears to include all of the back history of this case. A notice in order to meet the requirements of rule 19 has at least to include the ground upon which the application was made, and it was not.[21]Even if we are wrong about this, the timing makes the notice of no utility. As Mr Hemming himself had pointed out, to give a party, or in this case her husband, since she was known to be in A&E, about an hour’s notice of the application to be made is not sufficient compliance with the purpose of rule 19. The purpose, we hold, is to give the party an opportunity to defend herself against the draconian measure of a strike‑out on the pejorative ground of her unreasonable conduct or her failure to prosecute her case. One hour is insufficient time for her to obtain the material on which to defend that, and so this Judgment is a nullity, for it took place without the proper requirements of rule 18(6) and rule 19(1) and (2) being complied with.[22]As to 19(2), which is tailored to the non-pursuit ground, the Tribunal correctly addressed the email to her email address but knew then or shortly after that she was not there but in A&E at QE Hospital, and so this was imperfect notice under rule 19(2) as well. So, this case must be set aside, for the Tribunal had no jurisdiction to deal with the matter in the absence of those mandatory rules being complied with.[23]Lest we are wrong about that, we turn to the principles, and we have firmly in mind the injunction against the EAT interfering in a matter such as this when a Tribunal has properly directed itself (see O’Cathail ). The first thing to note is that Mr Heppinstall accepts before us that the Tribunal had before it an application to adjourn; that can be inferred from Mr Hemming’s first written iteration, which was that she was in hospital and likely to be admitted at least for a night. So, very sensibly, he accepts that that is, by a lay person’s spouse, an application to adjourn today’s proceedings because she is in hospital. The Tribunal does not deal with that application, which is the first step in the proper sequence that ought to occur in this case, and so that too is an error of law. The Tribunal should have given proper reasons as to why an application made in the form that it was would be rejected.[24]The second issue is as to the substance. In our judgment, this is a case where the Employment Tribunal was wrong in principle to refuse. The terms that it imposed on the Claimant were wholly unreasonable; to require a written medical report in the form it sought within the time given the logistics of Mrs Hemming being in hospital and Mr Hemming being either in Parliament or on the train up to Parliament, was an unreasonable requirement. There was a lesser measure which could have been taken: to adjourn until the next day, that would be day 2 of 8, when the prognosis would have been the clearer. As we know, the Claimant was discharged that night with no further sequelae and might well have come the next day. Postponing this decision from 2.00pm on Monday to 10.00am on Tuesday was, in our judgment, the appropriate measure to take proportionate to what was at stake here, which was the strike‑out of the Claimant’s race discrimination claims without a hearing at which she attended.[25]The third issue relates to the costs of the case. In our judgment, the Tribunal rushed too quickly. There was no need for that to be determined on the day, because the costs were very substantial and there was more to be said about it than the Claimant’s non‑attendance on the day. The trigger for all of this, no doubt, is the Tribunal’s impatience with the Claimant’s performance hitherto, but this is genuinely a case, as the records show, of the Claimant being unable to attend. Even a hypochondriac can get ill, and this may be a case where the little boy did indeed see a wolf and should have been believed. This is because of the way in which the Judge deals with the new material. On our construction, this was new material; the discharge letter written late in the afternoon on 16 April is genuinely new material. The Judge held it was not, but this was new evidence that ought to have entitled the Claimant to a hearing of her case on review. It indicated, and it is credible, that the Claimant was in A&E undergoing cardiac tests that are unrelated to her other conditions.[26]Her other conditions, coincidentally, were to be examined in a different department on the very day, but she had the month before asked for a cancellation and been given a reappointment on 14 May 2012. Thus the Claimant submits with some justification that she was prepared to try the case on the day – she cancelled her medical appointment in order to do so – and so again the Judge was wrong, in our opinion, in regarding this as material that could have been adduced on the day. If we are to take him as saying that there could have been some medical evidence provided to the Tribunal within that short period of time, then it needs to be seen in the context of the material that was in fact provided. The Judge was wrong to have treated this discharge letter as material that could have been produced before the 2.00pm hearing. That is a wrong depiction of the evidence.[27]What ought to have happened is that the Tribunal should have granted an adjournment. It had eight days set aside for this case. It rushed a Judgment on the Claimant’s case condemning her in the unfortunate epithets used by rule 18 of unreasonable conduct and causing a scandalous waste of money and awarded costs at the highest level without a detailed assessment all within a matter of an hour or so. This could have been dealt with the following day or a day or two later, and the Tribunal was wrong in principle to conduct the hearing without proper notice, to refuse to deal with the adjournment by giving proper reasons and to refuse to adjourn the case to even the next day, on which the application to strike out could have been considered. So, for those reasons, the appeal is allowed. Costs[28]Following further submissions, the refined application of Mr Heppinstall is for a day’s costs in respect of those thrown away. The rule is rule 40(1), which, it must be noted, contains none of the pejorative epithets of the other costs rule. This is a no‑blame provision; it arises where for one reason or another, not necessarily the fault of anybody, a party has been put to expense. There is no doubt that the Respondent in these proceedings was put to an expense. Miss Lovell has sought her hourly rate between 9.00am and 3.00pm attendance at the Tribunal. Mr Kamara does not tackle the quantum of that sum as being reasonably incurred. The question is one of principle. In our judgment, the sole issue is whether in our discretion we should now make this award. Nobody is asking for it to go back to the Tribunal, quite sensibly, and we do consider that the Respondent was put to costs as a result of the most unfortunate clinical event affecting the Claimant, but it had to pay £1,200 plus VAT, and so that figure will be paid as an order of costs. Disposal[29]This will go back to a differently constituted Employment Tribunal, because we have considered the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 763 and there were no findings on the merits of this case. There is no utility in keeping this Tribunal together. The hearing is likely to be two years after the hearing fixed in this case, and, since we have found the Tribunal to have been wrong in such serious ways, it would be very difficult to impose upon its shoulders the burden of deciding the matter afresh. So, this will go back to a freshly constituted Employment Tribunal with our order that the parties are directed yet again to apply their minds to a conciliated solution to this and to report to the Employment Tribunal within 28 days on the steps taken but not the substance.[30]All that remains is to thank both of the advocates before us today for the clear and concise way in which this point has been put.