THE INDUSTRIAL TRIBUNALS

CASE REF:	3181/09

CLAIMANT:			Hugh Aaron Houston

RESPONDENT:		Gary Lee & Others

DECISION ON A PRE-HEARING REVIEW
All of the claimant’s claims will be struck out (without further notice or hearing) unless, by 23 November 2009 at the latest, he complies with orders for additional information and discovery which were made on 10 September 2009.

Constitution of Tribunal:
Chairman (sitting alone):	Mr P Buggy		
	
Appearances:
The claimant was not present and was not represented.

The respondent was represented by Ms L Toolan, of the Engineering Employers Federation.

REASONS

1.	The main claim in these proceedings is the claim of unfair dismissal.  The main hearing of these proceedings has been scheduled to take place over a period of three days.

2.	Last September, during the course of a Case Management Discussion in which the claimant did not participate, I made what I considered to be, and still consider to be, proportionate orders for discovery and for additional information, with which the claimant was bound to comply.

3.	The claimant has not complied.  He has not provided any reason for non-compliance. He did not participate in the relevant Case Management Discussion.  He has not engaged in correspondence with the respondent’s representative in recent times.

4.	The respondents have asked for the striking out of this case, because of the claimant’s omission to comply with the relevant orders.

5.	I agree that the claimant has behaved in a contumelious manner (by failing to comply with the relevant orders).  So one of the threshold requirements, for the making of a striking out order, is met.

6.	The next question is whether I should, in the exercise of my discretion, make a striking-out order.  In exercising that discretion, I have to have regard to the interests of proportionality.

7.	In the end, and not without some hesitation, I have decided to make an “unless” order, whereby the proceedings will be struck out unless, by 23 November, the claimant complies with the relevant orders.

8.	I have concluded that the making of such an order is proportionate, against the following background, and for the following reasons.

9.	On the basis of the information currently available to me, I am not convinced that the potential availability of an order for costs is an adequate alternative remedy in respect of the non-compliances.

10.	If no immediate or “unless” striking-out order is made, the case ought to be speedily re-listed for hearing.  If I do that, and if the claimant  ultimately chooses to participate in that main hearing, the respondent will no doubt apply for an order in respect of the additional costs which it will  by then (because of the non-compliances) have incurred.  On the basis of the information currently available to me, I do not know whether the claimant would be able to pay the substantial costs which might be incurred by him in those circumstances.  Therefore, the option of making a costs order might not be a satisfactory alternative (to the making of a striking out order) for the respondents, who no doubt, at that stage, would have spent a significant sum of money in preparing for the main hearing.

11.	I regard the claimant’s failures to comply as being serious, and I regard the seriousness of his failure to comply as having been aggravated by his failure to participate effectively in the pre-hearing procedural processes of the tribunals, (which are designed to facilitate an expeditious and proportionate dispute resolution).  I note that the claimant is a qualified solicitor.

12.	If the claimant wants this case to go ahead, all he has to do is comply fully, by 23 November 2009, with the additional information and discovery orders.

Chairman:

Date and place of hearing:	21 October 2009, Belfast.	

Date decision recorded in register and issued to parties: