Appeal No. UKEAT/0489/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 January 2009
Judgment handed down on 8 May 2009

Before 
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

NORTH TYNESIDE PRIMARY CARE TRUST	APPELLANT

MS S AYNSLEY AND OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MICHAEL DUGGAN
(of Counsel)
Instructed by:
Messrs Ward Hadaway Solicitors
Sandgate House
102 Quayside
Newcastle Upon Tyne
Tyne & Wear
NE1 3DX	
For the Respondent	MS YVETTE GENN
(of Counsel)
Instructed by:
Messrs Stefan Cross Solicitors
Buddle House
Buddle Road
Newcastle upon Tyne
NE4 8AW	

SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
Equal pay claims constituting one of the multiples in the Newcastle proceedings – Respondent’s response struck out for non-compliance with an unless order – Strike-out reviewed by Employment Tribunal purportedly under rule 34 but allowed to stand.

Held that rule 34 has no application to the strike-out of a response as opposed to a claim form (Uyanwa-Odu v Schools Office Services Ltd. and Neary v St. Alban’s Girls School distinguished); but held that substantially the same exercise fell to be carried out under rule 10 (2) (n): Hart v English Heritage followed.

Held that in the circumstances of the particular case, and having regard to CPR 3.9,  the Judge was wrong to maintain the strike-out, notwithstanding the Respondent’s breach of an unless order, since it had subsequently substantially remedied its breach - Stolzenberg v CIBC Mellon Trust followed.  

THE HONOURABLE MR JUSTICE UNDERHILL 

INTRODUCTION

1.	This appeal and cross-appeal arise out of one of the “multiples” forming part of the massive series of equal pay claims proceeding in the Newcastle-upon-Tyne region (to which I will refer as “the Newcastle proceedings”).  There are some 214 claimants in the multiple, who are all female grade G nurses employed by the Appellant (“the Trust”).  The solicitors acting for the great majority of them (“the Cross Claimants”) are Stefan Cross Solicitors; but Thompsons, instructed by UNISON, also act for a number (“the Thompsons Claimants”).  The Trust is represented before me by Mr Michael Duggan and the Cross Claimants are represented by Ms Yvette Genn.  For reasons which will appear, the Thompsons Claimants are not parties to the appeal; but a representative of Thompsons nevertheless attended the hearing and was able to be of assistance on one aspect.  

2.	The appeal is against a decision of Employment Judge Garside dated 13 August 2008 (following a hearing on 16 July).  The effect of the order is that the Trust’s response in the proceedings has been struck out for non-compliance with an unless order, pursuant to rule 13 (2) of the Employment Tribunal Rules of Procedure (“the Rules”).  In order to deal with the issues it is necessary that I set out the interlocutory background in some detail.  

THE INTERLOCUTORY HISTORY

3.	The claims forming part of the multiple were presented over a period of about three months in early 2006.  The ET1s presented by the Cross Claimants were in standard form.  Para. 2 of the grounds pleaded under section 6.2 of the claim form pleads: 
The claimant is employed by the respondents as a grade G nurse
The claimant contends that her job is of equal value and/or rated as equivalent to the jobs of the named individuals or the relevant posts listed below:	
…

Eight “posts” were then identified by job title.  Despite the reference to “named individuals”, no individuals were in fact named.  It is generally understood that it is necessary for the purpose of an equal pay claim that a claimant identify a specific individual male comparator: comparisons simply with the terms payable for a job are not enough.  As I understand it, that obligation is recognised in the Newcastle proceedings; but I was told by both counsel that the practice has been, without objection, that claimants start by identifying “comparator jobs” in the ET1 and that individual comparators holding those jobs are only named at a later stage, generally as a result of a process of informal co-operation.  That practice is reflected in the drafting of the standard orders used in the Newcastle proceedings.  I see the good sense of this approach, at least in some circumstances; and I can see no objection to it in principle.  It does however have the consequence that the employer may not be able to plead a full response until the case is properly particularised.  

4.	In the present case, however, the Cross Claimants’ pleaded case was provisional for a more fundamental reason simply than an inability to name names.  They, or their advisers, do not appear, before drafting their claims, to have established whether the Trust in fact employed anyone with the job titles pleaded; or, if so, whether and to what extent the terms which male employees in those posts enjoyed were more favourable than theirs.  The proper way of proceeding would have been for the Claimants, before bringing proceedings, to serve a questionnaire under the Equal Pay (Questions and Replies) Order 2003; and indeed in their ET1s they claimed to have done so and asserted that the Trust had refused to answer.  It was, however, common ground before me that that assertion was untrue: no questionnaire had ever been served on the Trust.  What seems to have happened is that the Claimants had taken some likely-looking job titles from the relevant Whitley Council agreements and used them to get the ball rolling.  The reference to the Trust having failed to answer the questionnaire was standard-form, and no-one bothered to consider whether it had any application to this particular multiple.  That seems to me a shoddy way of proceeding; but since it has no direct bearing on the issue before me I need say no more.  

5.	Unsurprisingly in those circumstances, it in fact turned out to be the case that the Trust did not employ anyone with the job titles in question; and in its ET3 it said simply that.  Following that response no substantial progress was made in the proceedings for well over a year.  At a case management discussion on 3 May 2007 before Judge Garside an attempt was made by both parties to get the multiple back on track; and there was a further CMD on 29 October 2007.  Various orders were made designed to elicit information from the Trust, but they produced nothing.  I need not for present purposes analyse whose fault this was; but having been taken through them I was certainly not satisfied that it was wholly or mainly that of the Trust.  The underlying problem remained that the Cross Claimants had still not identified any comparator jobs recognised within the Trust.  

6.	It was not until a CMD on 7 December 2007 that any real progress with the litigation was made.  On that occasion the Trust was ordered to “disclose to the claimants a gender breakdown by job titles across the Trust”, by no later than 14 January 2008.  That gender breakdown was duly provided and gave the Claimants – apparently for the first time – a list of job titles done within the Trust from which they could identify comparator groups (and thus eventually individual comparators).  

7.	On 23 January 2008 Stefan Cross wrote to Ward Hadaway, the Trust’s solicitors, as follows:
Having reviewed the gender breakdown we have identified the following job categories as potential comparator job categories:
•	Wheelchair Service Driver
•	Technical Instructor
•	Service Desk Officer
•	Incident Reporting Officer
•	Senior IT Infrastructure Engineer
•	DAT Commissioning Support Officer
•	Risk Manager
•	Alcohol Strategy Manager
•	Chief Podiatrist 
•	Operations Support Manager
•	Deputy Head of Specialised Commissioning 
•	Service manager – Corporate Governance and Policy
•	Head of Operations
•	Head of Contracting and Performance

Please provide us with the information envisaged by paragraph 6 of the Version 12 Orders.
We request that this matter be dealt with as soon as possible and would be grateful of a reply by return indicating when we can reasonably expect receipt of the information.
Once we are in receipt of this information we should be able to reduce the number of potential comparators.

The jobs so identified were wholly different from those pleaded in the ET1.  They were avowedly “potential”: the Cross Claimants were still at the very first stage of trying to identify potential comparators.   

8.	On 8 February 2008 there was a further CMD before Judge Garside.  The Cross Claimants were represented by two paralegals and the Trust by Mr Hodgson, a partner in Ward Hadaway with extensive experience of the Newcastle proceedings.  (Counsel was also present for the Thompsons Claimants.)  There was effectively a completely fresh start as regards the information to be supplied about potential comparators.  Orders (2)-(5) – which, although not formally made by consent, were not opposed – were as follows:

(2)	The respondent shall by no later than 12 March 2008 disclose to the claimants in respect of each male in the comparator job groups the following:
•	The start date
•	Pay and grade history for the 6 years preceding the date of the claims 
•	Whether they are on Trust or Whitley Council terms.
•	The department in which they are employed.

(3)	The respondent shall by no later than 9 April 2008 disclose to the claimants:
Any material changes in job functions of each male in the comparator job groups.
The gender of any predecessor to the male now in each job group. 

(4)	No later than 9 April 2008 the respondent shall supply to the claimants all relevant Agenda for Change documentation in relation to each lead claimant and each nominated comparator in particular job descriptions at and prior to Agenda for Change, person specifications, job matching reports and/or sheets and review/appeal documentation not including panel notes and shall inform the claimants in relation to each lead claimant and each nominated comparator whether prior to 1 October 2004 that individual was employed on Whitley terms, in which event it shall identify the Whitley Council concerned, or Trust terms, in which event it shall state the nature of each of those terms.

(5)	The respondent shall disclose to the claimants by no later than 9 April 2008, so far as possible, for each male employee in each job group whether they have previously to being employed by the respondent been employed by another NHS Trust and if so the name of the Trust and the date the employee formed the respondent Trust.

9.	Some observations need to be made about those orders:

(a)	The “comparator job groups” are not of course the job titles named in the ET1s but the wholly different jobs recently identified by the Cross Claimants.  Those jobs are nowhere pleaded or otherwise formally set out, but the parties seem to have understood one another.

(b)	“Agenda for Change”, as referred to in order (4), was a major national job evaluation study and consequent restructuring of jobs recently carried out in the NHS.  Many of the substantive issues in the Newcastle litigation are concerned with the effect of Agenda for Change; but, given that in this multiple there were as yet no pleaded issues, the primary reason why documentation generated by it was being sought, and ordered, at this stage was because it was a convenient and authoritative source of detailed information about jobs done in the Trust and would thus be very useful in making the final choices of “comparator jobs” (and in due course individual comparators).

(c)	The reference in order (4) to “each nominated comparator” is wrong: there were of course at this stage no nominated comparators (though it is fair to say that many of the jobs identified are unlikely to have been held by more than one person at a time).  Ms Genn accepted that that was an error but submitted that it would clearly have been understood to mean “each comparator group”. 

10.	The Trust failed to comply with any part of its obligations under orders (2) to (4) by the dates specified.  On 2 April and 21 April 2008 Stefan Cross wrote to Ward Hadaway and the Tribunal complaining of that failure.  Those letters produced no response from the Trust.  At a CMD on 22 April 2008 Judge Garside made the following Order, which was formally signed on 29 April 2008 and sent to the parties on the following day:

“1	In accordance with the Employment Tribunal Rules of Procedure rule 13(2) unless the respondent complies with the Orders (2) to (5) of the Order made on 8 February 2008 in full the response shall be struck out at the date of non compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a Pre Hearing Review.  The compliance date is 20 May 2008.
2	There will be a case management discussion (1 hour) in the week beginning 26 May 2008.
NOTE
Since the making of the Order on 8 February 2008 there has been little or no progress in the respondents complying.  The delay has not been explained except that the information is difficult to trace.  Further delays cannot be permitted.  The respondent must realise that the Orders made are to be complied with by the due date.  If they cannot be a detailed explanation for non compliance is required (to say the exercise is difficult is insufficient).  If there is further delay the Tribunal will expect the respondent’s Chief Executive or other responsible person to attend to explain the delay.”

As recited, that order was made under rule 13 (2) of the Rules, which reads as follows: 
An order may… provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration or the need to give notice under rule 19 or hold a pre-hearing review or Hearing.

11.	There was no appeal against the Order of 29 April 2008.  The fact that an unless order had now been made should by itself have been sufficient to put the Trust on notice of the importance of complying with the Order of 8 February 2008; but the message was in any event reinforced in very clear terms by the note appended by the Employment Judge.  

12.	On 20 May 2008, the last day for compliance, Ward Hadaway wrote to Stefan Cross as follows:

“We refer to the above matter and the Tribunal’s Order of 8 February 2008.
Please find enclosed the information set out in Orders (2) to (5) in so far as the information is available.
All employees of the Trust were previously employed on Whitley Council terms.”

13.	It is common ground that the enclosures (which I have not been shown) to Ward Hadaway’s letter of 20 May failed by a large margin to comply with the requirements of the Order of 8 February and that there was substantial further documentation that could and should have been disclosed.  On 22 May Stefan Cross wrote to Ward Hadaway and the Tribunal identifying the failures clearly and with particularity, and Mr Duggan confirmed to me that that letter accurately identified the extent of the Trust’s non-compliance.  Stefan Cross’s position was (correctly: see Chukwudebelu v Chubb Security Personnel Ltd [2008] EWCA Civ 327) that, as a result, the order of 22 April took effect automatically, so that the Trust’s response was struck out, without the need for any further order, with effect from 20 May 2008.  By the same letter they applied for a date to be fixed for a remedies hearing.  

14.	Ward Hadaway’s only response to Stefan Cross’s letter of 22 May was a brief e-mail saying that they did not accept that the claim “should fall to be struck out”, because the order had been “materially complied with”.  Even ignoring the slippery word “materially”, that was not correct: as subsequently transpired, a good deal of further information was indeed available.  The e-mail suggested that the issue be considered at a forthcoming CMD.  

15.	The CMD duly took place on 30 May 2008.  Ms Genn attended for the Cross Claimants; the Trust was represented by Mr Hodgson.  It is clear that, surprisingly, despite the seriousness of the position in which the Trust found itself, Mr Hodgson was not able to assist the Tribunal with any detailed information or submissions in support of his contention that there had been “material” compliance.  Judge Garside did not feel that he was in a position to make a fair decision about the effect of the unless order.  He decided that he should adjourn the hearing and directed a half-day pre-hearing review and CMD for 16 July, at which further consideration would be given to the effect of the unless order.  As he put it at para. 5 of his Reasons (sent to the parties on 13 June): 

“It appeared to me that the best solution to deal with this problem was to adjourn consideration of the unless order.  The parties agreed to meet and prepare an appropriate schedule of what had been provided and what needed to be provided.  It would then be possible, on consideration of that schedule, to determine whether there had been a material disclosure as suggested by Mr Hodgson.  Basically I was not appraised of the information that I needed, to make a decision in regard to the unless order.”

16.	In compliance with the Judge’s indication, Stefan Cross and Ward Hadaway sought to meet and agree a schedule of what had and had not been provided.  A meeting was originally fixed for 15 June but proved unproductive because Mr Hodgson did not attend and sent someone else who had little knowledge of the case.  Subsequently, however, there was a more useful meeting and a schedule was sent to the Tribunal under cover of an e-mail from Stefan Cross dated 20 June.

17.	A week later, on 27 June 2008, Ward Hadaway wrote to Stefan Cross giving further information and documents.  I have not myself seen the documentation which was enclosed, but it is clear that it was substantial.  The letter itself contained a certain amount of further information and explanation: this was in fairly limited terms, but no doubt both parties had a good understanding of the background following their earlier meeting.  I will have to consider some aspects of what was disclosed in more detail in due course; but it is clear that some serious work had now at last been done by the Trust and Ward Hadaway.  

18.	On the same date Ward Hadaway also wrote to the Tribunal.  The letter began as follows:
“We refer to the above matter and the unless order made by Employment Judge Garside on 22 April 2008.
Further to the follow-up Case Management Discussion held on 30 May 2008 and subsequent discussions with Stefan Cross Solicitors, if and to the extent that the unless order was not materially complied with we make application for review.”
It went on to make various points, which I need not seek to summarise, directed at showing that there had indeed been material compliance and that the Trust had done the best it could.  

19.	The adjourned hearing duly took place on 16 July 2008.  The Cross Claimants were again represented by Ms Genn and the Trust by Mr Hodgson.  The Thompsons Claimants were represented by Mr Goldberg of counsel.  The parties and the Judge proceeded on the basis that the Trust’s application fell within rule 34 of the Rules.  It was the Cross Claimants’ case that not only had there been very substantial non-compliance as at 20 May but that even now the Trust had not given the full information required.  They relied on the schedules submitted on 20 June.  A revised version of these was put before the Tribunal, apparently to reflect the information subsequently provided (though it appears that it did not accurately do so – see below).  Mr Hodgson contended that the Trust had now provided all the information that it had: where there were gaps, the information either did not exist or was no longer in the Trust’s possession.  As to that, the Judge at para. 10 of the Reasons records as follows:

“As I had pointed out at the case management discussion on 30 May 2008 I required evidence to be produced as to what attempts had been made to comply with the orders.  No evidence is produced by Mr Hodgson.  Upon me urging him he was able, after the lunch break, to call Ms JL Paxton an HR Officer from the respondent’s office.  Her evidence was that she had been tasked with obtaining the information.  She was informed that the Agenda for Change documentation was contained in a four draw cabinet.  She had copied the contents of the cabinet in its entirety which she sent to the respondent’s representative.  She had checked to see whether documentation had been misfiled but found no further documents to disclose.  She had checked the personnel files but could find no job descriptions.  The respondent had relocated from another building and she went back to the building to try and find further information.  She was unable to discover anything further.  She had spoken to managers, where they were available, but they could shed no further light on the whereabouts of the documentation.  Ms Paxton had never been involved in Agenda for Change.  The one person who had dealt with the administration of Agenda for Change documentation, Ms Karen O’Brien, was not contacted.  She had left the Trust.  Other managers had also left the Trust.  Mrs Paxton gave no evidence concerning anything other than Agenda for Change documentation.”

Although I shall have in due course to consider a little more of the detail of Ms Paxton’s evidence, it is not disputed that the Judge’s overall summary is accurate.  Like the Judge, I consider it remarkable that Mr Hodgson had not thought it necessary to supply or obtain a witness statement of any kind and that it was only at his urging that the unfortunate Ms Paxton had to be produced, with virtually no notice, to assist the Tribunal. 

20.	I should say something about the position of the Thompsons Claimants.  The Judge recorded their position as being that they supported the resistance of the Cross Claimants to any relief being granted: the clear impression given is that if the (automatic) strike-out of 20 May stood the Trust’s response to their claim also would be struck out.  But I was informed by the representative of Thompsons attending the appeal that that did not in fact reflect their true position, which is that they did not have the benefit of the Orders of 8 February and 22 April and accordingly that the Trust’s responses to their claims are unaffected by any non‑compliance.  That seems to me correct; and it has since been tacitly recognised by the Tribunal, which has in subsequent correspondence proposed the hiving off of the Thompsons Claimants’ claims from those of the Cross Claimants.  

21.	The Judge reserved his decision.  By a Judgment and Reasons sent to the parties on 13 August 2008 he refused the application to review, with the result that the Trust’s response to the claims of the Cross Claimants remains struck out.  It is against that decision that this appeal is brought.

THE JUDGE’S REASONS

22.	The Reasons begin by setting out the key points of the interlocutory history, concluding (at paras. 11-13) with a summary of the contents of the schedules of outstanding disclosure provided by the Cross Claimants.  The Judge then set out the law.  He referred to the rules relating to disclosure, which are to be found primarily in CPR 31; to the power to make unless orders under rule 13 (2); to the power to review under rule 34 a strike-out effected by an unless order (or alternatively to reconsider it under rule 10 (2) (n)).  In the latter connection he referred to the decisions of this Tribunal in Uyanwa-Odu v Schools Office Services Ltd UKEAT/0294/05 (HH Judge Clark) and EB v BA UKEAT/1039/08 (Elias P).  He noted that in EB v BA Elias P had endorsed the approach of considering applications for review by reference to the factors set out in CPR 3.9, which he reproduced in full.  The Judge then summarised the parties’ submissions.  He gave his decision and reasons in a section headed “Conclusion”, which reads as follows: 

“26 It appears from the schedule relating to the disclosure of the documentation relating to Agenda for Change that the vast majority of the documents therein listed for both claimants and comparators has not been produced by the respondent.  The only documents that appear to have been disclosed, which bears some relation to the number of people set out in the schedule, appears to be the matching forms.  I raised in argument whether a lot of the other forms, which were not included, were the generic Agenda for Change documentation which could be incorporated from the Agenda for Change profiles for the various jobs.  Mr Goldberg quite rightly pointed out that this was supposition on my part.  I accept that.  
27  So far as Agenda for Change is concerned, Mrs Paxton, who has no experience of Agenda for Change or the documentation relating to it, was directed to a filing cabinet where she was told all the documentation was kept.  It was clearly not all there.  She did do a search to try and find where other documentation had been kept.  She did not make enquiries of Ms O’Brien who was the administrator for Agenda for Change, who presumably was the person who had filled the documentations.  The reason for this is that Ms O’Brien had left the Trust.  I cannot accept that just because Ms O’Brien has left the Trust that she is uncontactable.  The respondent would certainly know her home address prior to her leaving.  I would have though that that was the most obvious avenue for queries as to the location of the documentation.  Accordingly, the only explanation I have for the lack of documentation is that the documents in the filing cabinet have been produced.  It is clearly not all the documentation that would be generated on a assimilation of employees into Agenda for Change.  The claimants are entitled to that documentation and orders were made for the disclosure of it.  The explanation that was all that could be found is not sufficient.
28   It is not only Agenda for Change documentation which has not been provided.  The bundle contains a list of information included and omitted in relation to the comparators’ pay.  It is up to date of 16 July 2008.  For seven job groups no information has been provided at all.  In other jobs groups some information has been disclosed and some has not.  Information has been produced for job groups for which the claimants are not looking for comparators.  Information has been provided for some comparators but the claimants are unable to identify which job groups those claimants are in.  In other words the information provided by the respondent is incomplete.  The respondent has a duty to retain payroll information for a period of seven years a requirement of the Inland Revenue and Customs.  The only explanation provided by Mr Hodgson as to why this information has not been provided is that it is difficult to obtain.  No explanation is given by him as to why it is difficult to obtain or what efforts had been made to obtain it.
29   I must therefore find that the unless order has not been complied with.  There is an incomplete disclosure some of which is meaningless.  CPR order 31 clearly defines what disclosure must take place and how it is to be disclosed.  It has not been done in this case.
30   I notice that an application has not been made to extend the time for compliance with the unless order.  Equally I notice that no further disclosure has been made since the original hearing.  There were difficulties in the Cross representatives being able to meet with Mr Hodgson.  I was given an assurance at the last hearing that the schedule would be compiled as quickly as possible, within a few days, and the documentation provided.  It has not.
31   I am able to review on the grounds set out in rule 34(3).  The only ground that would apply is that the interests of justice require a review.  I must say that I am concerned which the future conduct of these proceedings.  Ms Genn assures me that the claimants will be able to proceed to prove their claim.  She suggests that third party orders for the disclosure can be made by the Tribunal.  However, this respondent appears to be reluctant to comply with orders.  It appears to me, that relying on the effect of the unless order, the claimants are tying their hands behind their backs.  It is for them to prove inequality.
32   However, I must look at the question of whether I should grant the review on the basis of what has been provided to me.  Full disclosure has not been achieved says Mr Hodgson because it is very difficult to do so.  That cannot be acceptable.  Proper and detailed explanation of why the various items of disclosure are not being produced to the claimants needs to have made.  Accordingly, on that basis I cannot grant the review.  The respondent has had two attempts to be able to show to me that proper and reasonable attempts have been made to disclose all the documentation requested by the claimants and thus complying, so far as it can, with the order.  It was only at my prodding of Mr Hodgson that he actually called Mrs Paxton to give evidence today.  That is the first time that the Tribunal has heard from any employee of the respondent.  I refuse to review the unless order.”

A PRELIMINARY DIFFICULTY

23.	Ward Hadaway’s letter to the Tribunal of 27 June 2008 (see para 18 above) did not in fact specify the rule under which the Trust was seeking a review.  However, as already noted, it appears to have been common ground before the Judge that the application was being made under rule 34.  That rule is in the following terms:

34.      Review of other judgments and decisions
(1)     Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are -
(a)    	a decision not to accept a claim, response or counterclaim;
(b)     	a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and
(c)     	a decision made under rule 6(3) of Schedule 4;
and references to “decision” in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules.
(2)     In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed.
(3)     Subject to paragraph (4), decisions may be reviewed on the following grounds only—
(a)     	the decision was wrongly made as a result of an administrative error;
(b)    	a party did not receive notice of the proceedings leading to the decision;
(c)     	the decision was made in the absence of a party;
(d)     	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e)     the interests of justice require such a review.
(4)     A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraphs (3)(a) and (e).
(5)     A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraphs (3) or (4).

It is well-established that a claimant whose claim has been struck out for non-compliance with an unless order may apply for relief under this rule, on the basis that when its operation is triggered by non-compliance the resulting strike-out represents a “judgment” within the meaning of rule 34 (1) (b) - being “a final determination of the proceedings” (see rule 28 (1) (a)): see Uyanwa-Odu (above) and Neary v Governing Body of St. Alban’s Girls School UKEAT/281/08.

24.	However, at a late stage in the preparation of this judgment I came to question whether the parties and the Tribunal had in fact been correct to treat the applications as falling under rule 34.  The authorities to which I had been referred all concerned cases where the default in question had been that of the claimant and what had therefore been struck out was his or her claim.  However, in the present case the default was on the part of the Respondent, so that what was struck out was the Trust’s response.  It did not seem to me that the striking-out of a response gave rise to “a final determination of the proceedings” (or of any issue in them):  as discussed below, there may be room for argument about what its effect is but it certainly does not by itself conclude anything.  Accordingly, it seemed to me, it did not fall within the definition of a “judgment” and could not be the subject of a review under rule 34.  I drew this difficulty to the attention of the parties and invited further submissions in writing.  It is the consequent hiatus which accounts for the delay in the promulgation of this judgment.  

25.	Both parties in their further submissions felt constrained to accept that they and the Tribunal had indeed been wrong to treat the Trust’s application as being made under rule 34.  Ms Genn submitted that the true analysis was that the striking-out of the response put the Trust in the same position as if it had simply failed to present a response in the first place. Such a case is governed by rules 8 and 9, which are in the following terms:

8 	      Default judgments
(1)     In any proceedings if the relevant time limit for presenting a response has passed, a chairman may, in the circumstances listed in paragraph (2), issue a default judgment to determine the claim without a hearing if he considers it appropriate to do so.
(2)     Those circumstances are when either—
(a)     	no response in those proceedings has been presented to the Employment Tribunal Office within the relevant time limit;
(b)    	a response has been so presented, but a decision has been made not to accept the response either by the Secretary under rule 6(1) or by a chairman under rule 6(3), and the Employment Tribunal Office has not received an application under rule 34 to have that decision reviewed; or
(c)     	a response has been accepted in those proceedings, but the respondent has stated in the response that he does not intend to resist the claim.
(3)     A default judgment may determine liability only or it may determine liability and remedy. If a default judgment determines remedy it shall be such remedy as it appears to the chairman that the claimant is entitled to on the basis of the information before him.
(4)     Any default judgment issued by a chairman under this rule shall be recorded in writing and shall be signed by him. The Secretary shall send a copy of that judgment to the parties, to ACAS, and, if the proceedings were referred to the tribunal by a court, to that court. The Secretary shall also inform the parties of their right to have the default judgment reviewed under rule 33. The Secretary shall put a copy of the default judgment on the Register (subject to rule 49 (sexual offences and the Register)).
(5)     The claimant or respondent may apply to have the default judgment reviewed in accordance with rule 33.
(6)-(7) …

9        Taking no further part in the proceedings
A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to—
(a)     	make an application under rule 33 (review of default judgments);
(b)    	make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(3)(a), (b) or (e);
(c)        be called as a witness by another person; or
(d)    	be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37;
and in these rules the word “party” or “respondent” includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.

Ms Genn went on to submit that it followed that it was unnecessary for the Cross Claimants to prove their claim and that all that was necessary was “a remedies hearing”.  She said that in principle it would have been open to the Trust to make an application under rule 33, which relates to default judgments; but it had not done so.  

26.	Mr Duggan, by contrast, contended that rule 8 could have no application because none of the circumstances specified in rule 8 (2) applied.  He did not say what, if that was so, the consequence of the striking-out of the response would be; but he submitted that in any event it could be reconsidered under rule 10 (2) (n): he referred me to the decision of Elias P in Hart v English Heritage [2006] ICR 655.

27.	The truth is that the draftsman of these notoriously ill-thought-out rules has simply failed expressly to cater for what happens when a response is struck out.  It is necessary to adopt a purposive approach in finding a construction which produces the sensible result which must be assumed to have been intended.  In my judgment the intention must have been that a respondent whose response has been struck out is liable to have a default judgment issued under rule 8, just as if he had failed to present a response in the first place (or his response had not been accepted).  That is the appropriate consequence for such a default; and if it did not apply the sanction of a strike-out out would be empty.  Thus far I agree with Ms Genn.  I do not, however, agree with her that it follows that the issue of liability in the present case has been determined.  It is clear from rule 8 (1) that in a case falling within the terms of the rule a chairman has a discretion whether or not to issue a default judgment; and, if so, whether that judgment should determine liability only or liability and remedy (see para. (3)).  In the present case, the Judge did not consider whether to issue such a judgment and did not do so; and since there has been no judgment, rule 33 is not in play.  I therefore agree with Mr Duggan that what we have here is a mere “order” – namely, the “automatic” strike-out order triggered on 20 May - which can, in accordance with Elias P’s analysis in Hart v English Heritage, be the subject of reconsideration under rule 10 (2) (n).  (There is a further potential problem in such a case, since it might be said that logically not only rule 8 but rule 9 should apply; and, since the right to make an application under rule 10 (2) (n) is not one of the rights preserved by rule 9, a respondent would appear to be debarred from pursuing such an application and would have to sit back and wait for a judgment.  That is not a satisfactory state of affairs – cf. Moroak v Crombie [2005] ICR 1226 and D & H Travel Ltd. v Foster [2006] ICR 1536 – and my strong inclination would be to construe the rules so that the respondent had at least the right to make an application under rule 10 (2) (n).  But no point was taken specifically on rule 9 in the present case, and I need reach no concluded view about it.)  

28.	Although I have felt obliged to try to unscramble this procedural pigs’ breakfast, I do not believe that it ultimately makes any difference to the substantive issue on this appeal.  The effect of the authorities by reference to which the Judge directed himself is that it is necessary in any application for relief from the effect of an unless order to take into account the provisions of CPR 3.9.  In my view that must be the applicable approach whether the exercise is conducted by way of a “review” under rules 33 or 34 or as a reconsideration under rule 10 (2) (n) (or indeed as part of the exercise by the chairman of his discretion under rule 8 (1)).  

29.	I should in this connection mention a point raised by the Claimants by way of cross-appeal.  On the basis that the application was being made under rule 34, they submitted that it had not been made within the fourteen-day time limit specified at rule 35 (1), and that the Judge had failed to consider whether it was just and equitable to extend time.  On the basis of my conclusions above that point does not now arise.

THE ISSUES

30.	It was – inevitably – common ground before the Judge that as at 20 May 2008 the Trust had failed to disclose a large quantity of information/documentation required by the Order of 8 February which was in its possession; and accordingly that the operation of the unless order had indeed been triggered.  But the Judge appears to have proceeded on the basis that if those deficiencies had been remedied subsequently there would be a proper case for relief.  That was in my view correct.  Very unimpressive though the original attempts of the Trust and/or Ward Hadaway had been to comply with the Order, if one takes account of the totality of the factors identified at CPR 3.9, relief would in those circumstances have clearly been justified.  It is clear from the authorities, which are helpfully listed in Neary (above), that, while the fact that a party has been in breach of an unless order is always relevant, it is nevertheless no more than a factor to be considered:  see per Arden LJ in Stolzenberg v CIBC Mellon Trust Co. Ltd. [2004] EWCA Civ 827, at para. 167.  Although in such a case penal considerations, having regard to the importance to a fair procedure of ensuring compliance with the tribunal’s orders, will properly come into play and may be decisive, tribunals nevertheless must not lose sight of the fact that (as Sedley LJ emphasised in Blockbuster Entertainment Ltd. v James [2006] IRLR 630) their primary function is to try cases that remain fairly triable.  Notwithstanding the Trust’s previous failures, if it had at last materially complied with the requirements of the Order of 8 February this case would certainly have remained triable, and the balance of the considerations identified in CPR 3.9 would clearly have favoured relief.  It is unnecessary to go through them seriatim, but the essential points are that the defaults were the result of carelessness rather than being intentional (or, in the old language, contumelious); that they had had no serious impact on the timetable for the proceedings, which had in fact so far made little progress, for reasons which were not shown to be primarily the fault of the Trust; and the enormous potential impact on the Trust of being deprived of the opportunity to defend multiple claims of this kind.  Taking those matters together, maintaining the strike-out would – assuming, as I say, eventual compliance - have been a disproportionate sanction. 

31.	The important questions were thus: (1) in what respects the information/documents provided subsequently – i.e. in or with Ward Hadaway’s letter of 27 June – still failed to meet the requirements of the Order of 8 February; and (2) whether it had been sufficiently demonstrated that such gaps as remained were because the Trust genuinely no longer had the material in question.  Only in the light of the answers to those questions could the Judge properly exercise his discretion whether to grant relief.  

(1) 	TO WHAT EXTENT HAD THE INFORMATION/DOCUMENTS REQUIRED BY THE ORDER OF 8 FEBRUARY BEEN SUPPLIED AS AT 16 JULY?

32.	There was no dispute that a great deal of documentation which must once have been in the Trust’s possession relating to the Agenda for Change exercise and falling within the scope of order (4) of the Order of 8 February had not been produced.  The Judge’s findings at para. 27 of the Reasons are self-explanatory and are not challenged.  In relation to these documents, therefore, the important issue is whether they were still in the Trust’s possession: as to this, see head (2) below.  

33.	The Judge also, however, found at para. 28 of the Reasons that other information was missing.  He did not – as, ideally, he should have done – relate his findings in that paragraph to the specific provisions of the Order of 8 February.  I was, however, taken through the detailed terms of orders (2), (3) and (5).  It is clear that no information was found to be outstanding in relation to orders (3) and (5) - nor in relation to the requirements of order (2) insofar as it concerned the first, third and fourth bullets.  The Judge’s observations are concerned specifically with the (admittedly important) requirement of order (2) that the Trust disclose details of pay and grade history over the previous six years of all men in the proposed comparator jobs.  As to that, his findings were fourfold:

(a)	that “for seven job groups no information has been provided at all”;

(b)	that “in other job groups some information has been disclosed and some has not”;

(c)	that “information has been produced for job groups for which the claimants are not looking for comparators”; and 

(d)	that some information had been provided for individuals whose job groups the claimants were unable to identify.

Mr Duggan submitted that the Judge’s findings in these respects were demonstrably wrong, or in any event over-stated.  I take those four heads in turn.

35.	As to (a), the schedule before the Judge at the hearing did indeed appear to show that no pay information had been provided in respect of seven out of the fourteen jobs.  That was a correct representation of the position prior to 27 June.  But Ward Hadaway’s letter of that date shows that information was provided in respect of five out of the missing seven jobs, and an explanation was given in the letter of why it was not available for a sixth.  There was thus, as at 16 July, only one real omission (which related to the post of “service desk officer”).  Subject to one qualification, Ms Genn accepted that that was the position.  (The exception was that her instructions were that although the letter of 27 June purported to include documents giving the pay history for the job of “incident reporting officer”, it did not do so – but Mr Duggan was not in a position to respond to this complaint, and even if it were well-founded an omission of this kind would hardly be sufficient on its own to justify maintaining the strike out.)  It seems however that the schedule put before the Judge had not been fully revised to reflect the further information supplied on 27 June; and indeed at para. 30 the Judge said in terms that “no further disclosure [had] been made”.  What is very puzzling is how it came about that he was not told, or at least it was not brought home to him, that the schedule was in this respect misleading.  The comments at the end of para. 28, if they are correct, strongly suggest that Mr Hodgson himself proceeded on the basis, not that the pay information had (subject to one or two minor exceptions) now been supplied, but that it was difficult to obtain.  We fully accept that Ms Genn said and did nothing to mislead the Judge as to the true position; but evidently either there was some confusion at the hearing itself or the Judge misremembered the position when he came to write his Reasons.  It would have been very useful to have had Mr Hodgson’s own account of what he told the Judge.  But there is only the most oblique of challenges to this part of the Reasons in the Notice of Appeal, and no witness statement from Mr Hodgson has been supplied.  Given the centrality of his own conduct to the issues raised by this appeal, I would have expected Mr Hodgson to be present behind Mr Duggan at the hearing before me; but I was told that he had been unable to attend because of a family crisis.  

36.	As to (b), Mr Duggan demonstrated that even the schedule before the Judge showed a failure only in respect of one item in respect of one individual (an “operations support manager”) – and that that was in relation not to pay but to start date.  In those circumstances the Judge’s finding that “some information has been disclosed and some has not” gives a seriously misleading impression of the gravity of the default.  

37.	As to (c), the Judge’s observation is formally correct.  But it does not take account of the fact that Ward Hadaway had in their letter of 27 June said this:

“We submit that the vast majority of the comparator job titles named on the spreadsheet no longer exists within the Respondent’s current structure.  We have attempted to match the job titles to the closest possible job title which exists currently … .”

38.	As to (d), I was not able to get to the bottom of this, but it is not suggested that by itself it would be a sufficient basis for maintaining the strike-out.  The exercise on which the parties were engaged was necessarily highly complex, and if there were any uncertainties of the kind alleged they could easily be resolved by requests for clarification.  

39.	Overall, I am satisfied that para. 28 of the Reasons seriously overstates the extent of the Trust’s non-compliance with order (2) of the Order of 8 February; and that in proceeding, as he patently did, on the basis that no further disclosure had been given since the previous hearing the Judge was mistaken as to a matter of fundamental importance.  If this appeal turned on it, it might be necessary for me to decide whether that error was in fact the Judge’s fault, so as to constitute an error of law on his part, or whether the wrong information put before him in the schedule was left unchallenged by Mr Hodgson, in which case it might be hard to see how he erred in law.  That would not be ideal in view of the unsatisfactory state of the information before me.  Fortunately, however, for reasons which will appear, the appeal does not turn on this.  I need only record that I am satisfied that the Trust had, by 16 July, substantially complied with the Order of 8 February as regards all elements save the Agenda for Change documentation.

(2) 	THE EVIDENCE ABOUT THE AGENDA FOR CHANGE DOCUMENTATION

40.	Mr Duggan submitted that on the evidence before the Judge – which was essentially that adduced, at the last minute, from Ms Paxton – the only conclusion open to him was that the Trust had demonstrated that it no longer had the documents in question.

41.	I was supplied with the Judge’s notes of the evidence of Ms Paxton.  Broadly speaking, the summary at para. 10 of the Reasons (set out at para. 19 above) fairly summarises its effect.  However, the details of the evidence appear to show that Ms Paxton carried out a number of enquiries and explored a number of avenues in an attempt to find the missing documentation.  Mr Duggan submitted, and I accept, that the evidence taken as a whole showed plainly that she had carried out a conscientious search, subject only to the question of whether she made adequate efforts to contact Karen O’Brien, the manager who had actual control of the Agenda for Change documentation at the end of the exercise.  As to that, the only evidence recorded in the Judge’s notes was in answer to a question from Mr Goldberg, counsel for the Thompsons Claimants.  That reads as follows:

“The files were sent to Karen O’Brien.  She has now left – not able to find her.  She left well over a year ago.  Not gone to another NHS Trust.”

Mr Duggan told me, and I understood Ms Genn to accept, that the reference to Ms O’Brien having left over a year ago meant, and would have been understood by reference to her earlier evidence to mean, that she had left the Trust prior to a recent move of premises which would inevitably have resulted in any remaining Agenda for Change documentation itself being moved. 

42.	Mr Duggan submitted that that evidence incontrovertibly established that the Trust was unable, after a sufficient search, to find the missing documents.  That being so, there could be no element of it having deliberately, or even carelessly, ignored the Tribunal’s orders.  In those circumstances, for the reasons which I have already given, it was wrong in principle to refuse relief against the effect of the strike out.  The Judge’s only criticism of the Trust’s search – and thus in effect the basis of his whole decision – was its failure to contact Ms O’Brien.  As to that, Mr Duggan’s primary submission was that the Judge’s criticism of the Trust was unreasonable.  Two points in particular can be made:

(1)	There was no sufficient exploration in the evidence of whether enough had been done to contact Ms O’Brien.   Neither Ms Genn nor the Judge had in fact asked any questions about this aspect: Ms O’Brien’s role was indeed only mentioned in the course of cross-examination by Mr Goldberg.  It does seem that some enquiries had been made about her present whereabouts, since Ms Paxton was able to say that Ms O’Brien had not moved to another Trust.  The particular point relied on by the Judge, namely that the Trust must have had Ms O’Brien’s home address, was not put to Ms Paxton.

(2)	The chances that Ms O’Brien could help were slight.  Even if she was able to say where the Agenda for Change documents were at the time that she left, the Trust had moved premises in the meantime.  

But in the alternative Mr Duggan submitted that even if the Judge believed that more could and should have been done to contact Ms O’Brien, it was disproportionate to strike out the Trust’s response because of that failure.  The Trust had, however belatedly, carried out a careful search in all respects save this.  In those circumstances, the right course would have been to set aside the strike-out but to make whatever order the Judge thought appropriate to ensure that enquiries were pursued with Ms O’Brien so far as possible.

43.	Ms Genn supported the Judge’s reasoning.  She said that he was entitled not to be satisfied by Ms Paxton’s evidence that a proper search had been carried out.  It was clear from her evidence that she personally knew nothing about the Agenda for Change documentation.  There was, she said, no evidence that she was properly instructed as to where the documentation might be found and that in consequence she did not know where to look.  She submitted that the change of premises did not necessarily mean that Ms O’Brien could give no useful information: if it were known where the documents were prior to the change, that might give a lead as to where they were now.  She also commented that it was clear that the Judge felt “an overwhelming sense of exasperation” at the way in which the Trust and Ward Hadaway had dealt with the issue.

44.	I accept Mr Duggan’s submissions.  It is indeed in my view clear from Ms Paxton’s evidence that she personally had carried out a thorough and conscientious search.  Although, as Ms Genn emphasised, she did not herself have any knowledge of the Agenda for Change exercise, it appears from her evidence that she made careful and appropriate enquiries with those who did and who were still employed by the Trust; and the Judge did not find otherwise.  As regards the fact that Ms O’Brien had not been contacted, I am doubtful whether this was a fair criticism on the basis of the evidence, for the reasons given by Mr Duggan; but, even if it was, he is in my view right in his submission that to maintain the strike-out on this basis alone was unjustifiable.  I get the clear impression from the Reasons read as a whole that the Judge’s decision was based, at least in very large part, on the deplorably lax way in which the Trust and Ward Hadaway had conducted themselves over the entire period up to and including the preparation for the hearing of 16 July.  It was entirely understandable that he should have felt, as Ms Genn put it, an overwhelming sense of exasperation.  But that sense of exasperation should not have influenced his decision as to the right course to take as at 16 July, by which time there had at last been, subject only to the question of Ms O’Brien, substantial compliance.

CONCLUSION

45.	Since, for the reasons which I have sought to give, I believe that the Judge erred in law in his conclusion in relation to the Trust’s compliance with order (4), his decision to refuse the Trust’s application cannot stand.  Since, even if the matter was not properly explained to the Judge, it is now clear that order (2) had also been complied with (see para. 39 above), that disposes of the only basis on which the Judge’s order could be supported; and I accordingly allow the appeal and revoke the striking-out of the Trust’s response which was triggered by its original non-compliance with the Order of 8 February.  

46.	It is not the effect of this decision that the Cross Claimants are precluded from pursuing the matter of any remaining deficiencies which they may allege in the Trust’s compliance with the Order of 8 February 2008, whether in relation to order (2) (where there may still be some minor loose ends) or order (4).  In particular, they are not precluded from seeking an order that further enquiries be pursued with Ms O’Brien, if she can be traced.  But I would hope that formal steps in this regard would not be necessary.  I would hope that the Trust would feel, in the light of the unfortunate history of this matter and in the interests of transparency and good faith, that it was appropriate to pursue any further enquiries that the Cross Claimants, within reason, may ask for in order to satisfy themselves that the Agenda for Change documentation has indeed been irretrievably lost.  

47.	I should add this.  I have reached the conclusion that I have with the less reluctance because, like the Judge (see para. 31 of the Reasons), I am concerned about whether it is really in the interests of the Cross Claimants to obtain a default judgment on “liability” or indeed to have the Trust debarred from defending.  Quite what a default judgment on liability would mean in an equal pay case where the claimants have not even identified their comparators is far from clear.  Ms Genn assured me, as she did the Judge, that those advising the Cross Claimants were confident that they could proceed to prove and quantify their claim even if the Trust took no further part in the proceedings.  I did not seek to explore with her whether that confidence was well-founded, though on any view the situation would be unusual and likely to give rise to real difficulties.  But since I have not relied on these considerations in reaching my decision I need say no more about them.