THE INDUSTRIAL TRIBUNALS

CASE REF:   294/04

CLAIMANT:			JR5

RESPONDENTS:		1.	R294/04A
				2.	R294/04B
				3.	R294/04C

DECISION
The decision of the tribunal is that the claimant’s claim should not be struck-out and the third-named respondent, R294/04C, should not be dismissed from proceedings.  

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Kinney

Appearances:
The claimant appeared in person and represented herself.
The first-named respondent was represented by Ms Best, Barrister-at-Law, instructed by Beachcroft LLP, Solicitors.

The second-named respondent was represented by Mr McSorley, Solicitor, of Tughans, Solicitors.

The third-named respondent was represented by Mr Coll, Barrister-at-Law, instructed by Crown Solicitor’s Office.

1.	Issues

(1)	Whether the claim against all three respondents should be dismissed because it has not been actively pursued.

(2)	Whether the claim against the third-named respondent should be dismissed because the proceedings display no issue against it.

(3)	Whether, under Rule 18(7)(f) of the Industrial Tribunals Rules of Procedure 2005, the proceedings should be struck-out on the grounds that a fair hearing is no longer possible.

2.	The claimant presented a claim to the industrial tribunal on 3 February 2004 alleging sex discrimination.  The claimant sought employment with the third-named respondent.  The recruitment process was carried out by the second-named respondent.  The first-named respondent was retained to carry out a medical assessment of candidates.  The claimant believes that she was discriminated against in this recruitment process.

3.	Ms Best, on behalf of the first-named respondent, contended that the tribunal’s power to strike-out was analogous to want of prosecution proceedings in the High Court.  There had been numerous Case Management Discussions in this case.  Timetables had been agreed but not adhered to.  There had been inordinate and inexcusable delay and there was a substantial risk that it would not be possible to have a fair trial.  Ms Best invited the tribunal to consider Issues (1) and (3) together.  There would be substantial difficulties in witness availability and in witness recollection.  The events happened over six years ago.  There were four medical assessors involved in the claimant’s case.  Only one remained in the employment of the second-named respondent who has stated that he does not remember the details of the examination as he examined thousands of people since the examination of the claimant.  The first-named respondent was not aware of the whereabouts of the others.  There had been an intervening TUPE transfer and the first-named respondent had little or no records of the material events.  Over eleven hundred applicants were seen by the medical team in this recruitment exercise.  The prejudice to the first-named respondent is such as to justify a    strike-out.  There is no reasonable alternative open to the tribunal. 

4.	Mr McSorley, for the second-named respondent, adopted Ms Best’s comments.  He submitted that the last active role by the first-named respondent in the recruitment process was in June 2003.  He then referred to the history of these proceedings.  

5.	It is appropriate to set out that history here and I have had the benefit of seeing records of Case Management Discussions and other documents from the file.  The proceedings were initially ‘stayed’ pending judicial review proceedings in the High Court.  Subsequently the proceedings were postponed pending the decision of the Court of Appeal in relation to an appeal taken by the claimant against a decision of the tribunal.  The Court of Appeal judgment was delivered in the Summer of 2007.  This case was then listed for a Case Management Discussion where it was further adjourned to allow the third-named respondent to be joined.  In early 2008 the claimant provided medical evidence to the tribunal.  It was considered by the Vice President, who directed that further medical evidence be obtained from the claimant and that no further hearings should take place until such a medical report was obtained.  The claimant provided medical evidence to the tribunal at various stages thereafter which was considered by the Vice President and directions made accordingly.  A medical report was ultimately obtained dated 8 February 2010.  At a Case Management Discussion on 29 April 2010 the Chairman, who had seen the report, provided redacted excerpts to the respondents and determined that the claimant was fit to proceed with hearings provided she was given sufficient preparation time and that the hearings proceeded in half-day blocks.  One of the matters listed for hearing was this strike-out application.

6.	Mr McSorley in his submissions echoed the submissions of Ms Best.  The     second-named respondent’s last role in the recruitment process was June 2003.  Six assessors were involved in the process at three different stages.  Four of the assessors were no longer with the second-named respondent.  Evidence will be given of events over seven years ago.  Mr McSorley said there were no contemporaneous records and no statements had been taken.  Instructions had been taken in relation to the claim but he was unsure if those instructions had been kept.  All these matters had a direct impact on whether a fair hearing was possible.  

7.	Mr Coll, on behalf of the third-named respondent, relied on the submissions of Ms Best and Mr McSorley in relation to Issues (1) and (3).  He contended the     third-named respondent should not be a party.  The recruitment process was carried out on its behalf by the second-named respondent.  The third-named respondent had no ‘hands-on’ role.  This case was not simply about delay.  Evidential problems had arisen.  Mr Coll conceded that mere delay was probably not sufficient on its own to strike-out the claimant’s case.  There were problems with witnesses.  The claimant did not provide information through the interlocutory process.  Mr Coll submitted that there was no other way of dealing with the problems fairly other than striking-out the claimant’s claim.

8.	The claimant then made her submissions.  The claimant could identify the whereabouts and details of the first-named respondent’s witnesses after conducting a cursory search on the internet.  She also had received discovery some time ago from the first-named respondent and would make those documents available to them if they had not retained the documentation themselves.  The discovery disclosed, on the claimant’s submissions, a different sequence of events in the recruitment process.  It also showed direct involvement of the third-named respondent.  The individual who intervened in the recruitment process for the     third-named respondent was available to give evidence.  The High Court applications and Court of Appeal judgment were essential to enable the claimant to pursue her case.  The tribunal had been provided with requested medical evidence and the claimant was ready to proceed with this case and sought listing as soon as possible.  

Decision

9.	Various authorities have been opened to me by the parties.  It is clear that the striking-out of a claim is, what Sedley LJ described as:-

“Draconic power not to be readily exercised.  It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably.  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 has made a fair trial impossible.  If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking-out is a proportionate response.”

(Blockbuster Entertainment Ltd  v  James [2006] IRLR 630)

10.	In Abegaze  v  Shrewsbury College of Arts and Technology [2009] EWCA Civ 96 the Court of Appeal said that the general approach to the issue of whether there had been a failure to actively pursue a case should be akin to a strike-out for want of prosecution in a common law case.  Lord Justice Elias said:-

“That requires that there should either be intentional or contumelious default, or inordinate and inexcusable delay such that there is a substantial risk that it would not be possible to have a fair trial of the issues, or there would be substantial prejudice to the respondents.”

11.	On the basis of the submissions I have heard today, I do not conclude that there has been intentional or contumelious default by the claimant in pursuing her claim.  The progress of the claim has been hindered by external factors.  Initially other appellate proceedings having potentially a direct impact on these proceedings had to be concluded and latterly the claimant’s medical condition was such that the Vice President directed that hearing be postponed.  I further do not consider the delay to be inexcusable or inordinate in all the circumstances of the claim that I have already set out.  The claimant is keen to progress this matter to full hearing.  She believes there are questions to be answered by the respondents.  She is now fit to pursue her claim.  

12.	The central question left for determination is whether a fair trial is still possible.”

	The respondents point to evidential difficulties.  The claimant has answered many of those difficulties today.  The respondents’ application to strike-out is based largely on the identification and sourcing of witnesses.  It would appear, on the submissions that I have received, that the investigations made by the respondents have been confined to their own records.  The claimant, however, was able to provide details of the whereabouts of many of the witnesses.  The claimant can also provide to the respondents copies of the documents she has received on discovery.  These will assist as contemporaneous records of the events.  

13.	Although it is unfortunate that the case has not been ready to come to hearing before now, I consider that a fair hearing is still possible.  I do not consider that striking-out the claimant’s claim is a proportionate remedy.  The claimant’s other hearing commitments mean that this case will not be listed until the Spring of next year.  I consider that this still means that the case can be dealt with within the foreseeable future.

14.	Mr Coll made a further application, on behalf of the third-named respondent, that it should be dismissed as there was no issue made against it.  However, the claimant has today provided discovery that she has received from the first-named respondent which, taken at its height, potentially shows the involvement of the  third-named respondent in the recruitment decision-making process.  For that reason, I refuse the application to dismiss the third-named respondent.

15.	This case should proceed to hearing as soon as possible.

Chairman:

Date and place of hearing:	2 – 3 September 2010, Belfast

Date decision recorded in register and issued to parties: