“130. The particulars are detailed in the document produced further to the order of Judge Slater and will not be repeated here.” 7. Upon receipt of the witness statement and others served by the Claimant, on6 December 2016 , Mr Allen acting for the Respondent, as I have already said, wrote to the ET copied to the Claimant in the following terms: “A number of the allegations pleaded by the Claimant and many of the detriments asserted are not evidenced in the statements exchanged by the Claimant at all. So, within the attached draft list, I have included in appendices two and three the allegations made and the detriments asserted which I cannot see are evidenced at all in the statements provided. I have divided the document in this way to assist the Tribunal. Of course, by including allegations in the core list of issues or appendix one, I am not accepting that they are made out or even that there is sufficient evidence for them to be upheld based upon what is said, but I have tried to divide the issues/detriments to show those where there is nothing whatsoever in the Claimant’s evidence which supports them. Whilst it has been made clear to the Claimant on a number of occasions that the witness statements he exchanged needed to be the full and complete evidence that he (and his witnesses) would give at the hearing and that no additional evidence would be allowed, I would ask this to be re-confirmed at the forthcoming Preliminary Hearing. This has been clearly explained to the Claimant and Ordered on a number of occasions, see for example: Order 1.2 following the11 October 2016 Preliminary Hearing; Order 3.5 following the Preliminary Hearing of13 May 2016 ; and, in particular, Order 7 following the Preliminary Hearing of4 September 2014 . The Claimant has provided a statement of his own evidence which runs to 43 pages and includes 233 numbered paragraphs. It does address in detail some of the claims raised. However, as is identified in appendices two and three of the attached, it does not address a great many of the other claims identified or the detriments it is asserted he has suffered. I am particularly making this application because I note from a Judgment in the Claimant’s previous claim against Gwent Healthcare NHS Trust (case number 1605549/2009) that in that case the Claimant had exchanged his witness statement, but subsequently attended at what was intended to be the final Tribunal hearing for the case with a very lengthy different/ expanded statement (as well as a supplemental bundle). As a result the hearing of that case had to be adjourned and costs were awarded against the Claimant. In case that is of assistance to the Employment Judge hearing this week’s Preliminary Hearing, a copy of the relevant Judgment is enclosed (paragraphs nine and ten contain the core explanation of what occurred in that previous claim). I am concerned that the Claimant may intend to, or endeavour to, take the same approach to his current claim (particularly in the light of the gaps in the Claimant’s own witness statement). For completeness, I also enclose one page only of the Claimant’s exchanged witness statement (page 33 of 43). My reason for doing so is to bring paragraph 130 to the attention of the Employment Judge due to hear this week’s Preliminary Hearing. This one sentence cannot have the result of effectively converting 297 pages of pleadings into the Claimant’s witness evidence (or at least 133 pages if restricted to the alleged disclosures pleaded). The pleaded case is of course very repetitious, whilst in many respects being vague and non-specific particularly in respect of dates and details. Please can it be confirmed at the forthcoming hearing that this one sentence does not do so. I thought it appropriate to seek clarity on this issue as it will have some significant impact upon the timetabling of the full hearing of the claim. The Respondent has previously highlighted the importance of there being some element of timetabling put in place for the three week hearing, as there are a number of Consultants in obstetrics and gynaecology due to give evidence and their rotas and on-call arrangements will need to be arranged to ensure that there is appropriate Consultant cover maintained.” 8. It is likely that the Claimant received that letter only just before the hearing on 9 December as he does not correspond with the Respondent other than by post or facsimile. I therefore turn to the Order under appeal: “1. This preliminary hearing was fixed on11 October 2016 in order to: consider the list of legal and factual issues, to resolve any outstanding dispute about the scope of the final hearing and to reconsider the allocation of time for the final hearing. The final hearing has already been listed at Manchester Employment Tribunal, Alexandra House, 14-22 The Parsonage, Manchester, M3 2JA to start at 10am or so soon thereafter as possible on27 February 2017 . 2. This record should be read in conjunction with that produced after the hearing on11 October 2016 . 3. After considerable discussion there was a broad measure of agreement between the parties as to the remaining interlocutory steps which are ordered below. 4. The principal disputed issue before me today was the claimant’s application to be allowed to submit a further witness statement due to the inadequacies identified in the witness statement exchanged by him in accordance with my previous order and as identified by Mr Allen in his letter of6 December 2016 . As noted below I refused that application. 5. In summary I consider that the prejudice to the claimant is outweighed by that to the respondent. There are multiple disputes of fact in these proceedings. The claimant is seeking to raise matters that go back to 2011. It is clear that many of the claimant’s allegations of detriment are out of time in any event. He will have to seek extensions of time from the tribunal unless he can establish acts extending over a period. These points serve to reduce the effect of the prejudice upon the claimant. These proceedings having been continuing since 2013. The claimant, though a litigant in person, is entirely the author of his own misfortune. Moreover he is an experienced and intelligent litigant in person. Throughout the proceedings he has known what was and would be required of him and he has simply failed to comply. Indeed, he volunteered that the gaps in his witness statement were entirely his own fault. 6. There would be considerable prejudice to the respondent if the claimant were permitted to serve a further statement. He would be able to attempt to fill the gaps in the evidence contained in his witness statement having sight of and full knowledge of the evidence already tendered in witness statements by the respondent’s witnesses. Moreover, these considerations are in the context of a claimant who has had to seek relief from sanction on two occasions having had unless orders made against him. One such was relief from sanction which I granted in relation to his failure to exchange witness statements at a much earlier stage. 7. Finally, upon consideration of the matters that the claimant had not included in his witness statement, which were helpfully summarised by Appendices 2 & 3 to the list of issues that Mr Allen had prepared, I identified a number of matters which the claimant could legitimately have added to the list of issues even without being given an opportunity to provide a further statement. This is because Mr Allen accepts that the respondent has already been able to set out its evidential case in answer to those assertions. Insofar as the additional matters include allegations of protected disclosures Mr Allen also agreed that where there were documents recording or repeating the disclosures allegedly made then there would be written evidence before the tribunal upon which the claimant might rely. The orders given below are intended to reflect these considerations and to direct the parties to be in a position to put before the tribunal at the final hearing a list of issues appropriately amended to reflect these decisions. 8. In all the circumstances I made the following orders. ORDERS 9. The claimant’s application to be permitted to prepare and rely upon a further witness statement is refused.” 9. Although the matter was thereafter listed for a hearing - a liability hearing I assume - before Employment Judge Horne and lay members, due to their non-availability for some of the allocated days, the hearing scheduled for 1 March turned into a very lengthy directions hearing. Employment Judge Horne noted what happened, in the very lengthy Written Reasons that were requested by the Claimant and produced following that hearing: “2. On1 March 2017 the tribunal began what was supposed to be the final hearing of the claimant’s claim. At the outset of the hearing the claimant made an application to adjourn the hearing. We refused the application. 3. Over the course of the ensuing days, the claimant made the following disputed applications: 3.1. to amend his claim to include a complaint of victimisation; 3.2. to amend his claim, and in particular his complaint under FTER so as to allege that he was treated less favourably than Rita Bhalla was treated; 3.3. for permission to give evidence in chief about matters not covered in his witness statement, which would be relevant to the allegations referred to in Schedules B and C; 3.4. for permission to ask questions in chief of witnesses about matters not covered in their witness statements; 3.5. for permission to rely on a supplemental witness statement; 3.6. for specific disclosure of patient notes of Patient L, Patient Z and other patients; 3.7. for specific disclosure of further rotas; 3.8. for a witness order for: 3.8.1. Mr Amu 3.8.2. Dr Maniaz 3.8.3. Edna Smith 3.8.4. Cathy Trinick and 3.8.5. Dr Thirwell 4. During the course of the claimant’s submissions, it became clear that the claimant wished the tribunal to adjudicate on a great many allegations that did not appear in the List of Issues. This led us to spend several days trying to clarify with the claimant how he was putting his case in relation to those allegations. We indicated on the second day of the hearing that, once the claimant had been given the opportunity to clarify those allegations that did not appear in the List of Issues, we would consider whether any of those allegations should be struck out on the ground that they had no reasonable prospect of success. 5. As the claimant continued to talk about the way he was putting his case, it appeared from time to time that what the claimant was actually doing was seeking to introduce allegations that were not even in the FBPs. In relation to these allegations, the tribunal had to decide whether an amendment was required and, if so, whether it should be granted. 6. The parties’ submissions regarding these issues flushed out a further preliminary issue, namely whether paragraph 130 in the claimant’s witness statement was admissible. That paragraph stated that the claimant made protected disclosures as set out in his FBPs. The respondent’s position was that that paragraph was wholly unsatisfactory because of its attempt to import large sections of the FBPs wholesale into the evidence without setting out any of the factual detail. This was a point raised by the respondent at a previous preliminary hearing, without having been adjudicated. 7. One issue recorded in the List of Issues was whether or not the claimant would be required to amend his claim in order to rely on protected disclosures and to allege detriments which, in each case, had been specifically alleged for the first time in the FBPs. Was the claimant introducing new allegations or merely providing further particulars of existing ones? The parties agreed that this question should be determined at the outset of the hearing along with the claimant’s applications.” 10. In the course of that hearing, there was a renewed application for a supplementary written statement, this is dealt with at paragraphs 104 to 105 of those Reasons: “104. We refuse the claimant’s renewed application for permission to rely on a supplemental witness statement. There has been no material change of circumstances since the Refusal Decision. The claimant argues that the two days spent clarifying his case are a material change. We disagree. Employment Judge Ryan did not base his Refusal Decision on the lack of clarity in the FBPs. 105. Even given a free hand, we would make the same decision as Employment Judge Ryan, for the following reasons: 105.1. The claimant’s submissions on this point included an explanation of his reason for not having prepared a more complete witness statement in the first place. Here is how the explanation goes. Based on his experience of having sat on a jury at Harrow Crown Court, he thought that he would give his evidence in chief orally and there was no need for all his evidence to be in his witness statement. For the reasons we have already given we simply cannot accept this account. Once again, we stress that we have not reached any conclusions about the credibility of the claimant’s evidence generally. 105.2. Refusing a supplemental statement still leaves the claimant with a long list of allegations supported by the existing witness statements and documents in the bundle. 105.3. Granting permission would, as Employment Judge Ryan pointed out, give the claimant an advantage over the respondent because he would be able to tailor any supplemental evidence to fit the respondent’s witness statements which he has now had for several months. It would also add to the length of the case, by increasing reading and cross-examination time. Finishing the re-listed hearing within the allotted time is going to need very careful case management as things already stand. Any substantial supplemental evidence risks derailing that process.”
“1. The Judge erred in law in refusing the Appellant’s application to be allowed to submit a supplementary witness statement, in that he: 1.1. failed to take into account that hardship/prejudice to the Appellant of not being allowed to give evidence in respect of key aspects of his claim (namely discrimination and protected disclosures), the effect of which was to essentially strike out those parts of his claim (as demonstrated by Schedules B and C of the full Judgment of EJ Horne dated 13 March and sent to the parties on28 March 2017 ); 1.2. failed to consider whether or not a fair trial of the Appellant’s claims was still possible, given the effect of the decision to exclude the statement (as demonstrated by Schedules B and C of the Judgment of EJ Horne referred to above).”
“The Decision was a case management one, as to which wide latitude is permitted to the Judge. As to Ground 1, the Claimant had no right to be allowed to make a supplementary witness statement, especially so late in the proceedings. There is no error of law in the Judge refusing him permission to do so. It should be pointed out that the Court of Appeal in Kalu v Brighton refused to allow parts of a witness statement made by a Claimant to be given in evidence, for reasons which resonate with those in this case. As to Ground 2, the Judge expressly considered the prejudices and came to a permissible conclusion. As to 3, the same applies. As to 4, no argument/ground has been advanced for the assertion of error of law: I can see none. The Reasons are, overall, clear and cogent - see especially Chandhok v Tirkey . A case has to be kept within reasonable bounds, so that it can be tried efficiently. This case cried out for an approach such as the Judge adopted. I consider the appeal wholly without merit, and refuse under rule 3(7ZA), having read the Reasons given by the Judge. In particular, the Claimant must have known throughout what his complaints were. He cannot reasonably now seek to add to them, in the way he has tried to do, and have proper Grounds to complain that a court has refused to allow him to do so.”