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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Renwick v Scottish Widows Services Ltd [2003] UKEAT 1225_02_0809 (8 September 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/1225_02_0809.html Cite as: [2003] UKEAT 1225_2_809, [2003] UKEAT 1225_02_0809

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APPEARANCES

 

For the Appellant	MR KERRY UNDERWOOD Solicitor Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Herts HP1 1LF
For the Respondent	MR ROY LEMON Messrs Moore & Blatch Solicitors 11 The Avenue Southampton SO17 1XF


 


JUDGE SEROTA

1. This is an appeal by Ms M K Renwick from an Order of the Employment Tribunal at Southampton (of whom Mr Twiss was the Chairman) that was entered in the Register on 18 August 2002. The hearing had taken place in relation to the successful application for a strike out we believe on 14 August.
2. The decision of the Employment Tribunal was that the Applicant's Originating Application should be struck out pursuant to Rule 4(8) and Rule 15(2)(d) on the basis that manner in which the proceedings had been conducted by Ms Renwick were unreasonable and vexatious. The matter went before his Honour Judge McMullen who directed there should be a Preliminary Hearing. The first Preliminary Hearing was to come before Mr Justice Elias on 20 December 2002 but at the Applicant's request the Preliminary Hearing was adjourned and it eventually took place on 17 February 2003 before the Tribunal presided over by his Honour Judge Ansell.
3. On that occasion both parties were represented. His Honour Judge Ansell directed there should be a full hearing but on the basis of the amended Notice of Appeal dealing essentially with two points. Firstly, that the Employment Tribunal had deprived the Applicant of a trial contrary to her rights under the Human Rights Act and secondly that the Employment Tribunal had failed to deal satisfactorily with evidence relating to her medical condition.
4. We should say that on that occasion Mr Underwood appeared on behalf of Ms Renwick under the ELAAS Scheme and he has again appeared today under the ELAAS Scheme. All members of the Tribunal would like to thank Mr Underwood for his great assistance in this matter and we would again pay tribute to those such as Mr Underwood who give up their time to attend the Employment Appeal Tribunal to assist unrepresented litigants in cases such as this.
5. The Applicant is a tax lawyer. She holds two law degrees and has passed her Law Society Finals although we understand she is not formally qualified as a solicitor. She is a member of the Association of Taxation Practitioners. The Employment Tribunal described her as being extremely articulate, highly intelligent and a woman of, as they put it, formidable intellect.
6. She joined the Respondent on 21 September 1999 as a taxation and trust specialist. On 11 August 2000 she was dismissed for gross misconduct after a disciplinary hearing. On 10 November she presented her Originating Application. This was certainly amended on one occasion. and possibly two, it matters not, but she made complaints of discrimination on the grounds of race, unfair dismissal and breach of contract.
7. It is really unnecessary for us to explore the factual background to her complaint but it would appear that she claimed she had made a protected disclosure to her employers about a broker whose personal tax affairs she had been asked to consider as a favour. She maintained that she refused and claimed that she had been dismissed for refusing to cooperate with a fellow employee and for having failed, so it was alleged, to carry out reasonable instructions. She also claimed she was victimised because she had been instructed not to send papers to the Respondent's compliance department but she had done so.
8. She maintained that she was unfairly dismissed. Her claim for breach of contract concerned the payment of a bonus and the discrimination claim related to an allegation that she had not been given appropriate authority as a manager and had been treated less favourably than her white colleagues. These allegations, it is only fair to say have always been disputed by the Respondent and the Respondent has always maintained that if Ms Renwick believed that she had come across tax evasion or anything like it there was a well-known procedure to be adopted for bringing this matter to the attention of the Respondent, a procedure which she did not choose to follow. The Respondent maintained that she had been dismissed for gross misconduct which included lying to her clients. The allegations of breach of contract and discrimination were denied. We need say no more about these matters and nothing in the decision that we give is to be taken in any sense as being any form of adjudication on the merits of Ms Renwick's substantive claims.
9. The hearing before the Employment Tribunal in Southampton was fixed for 5 and 6 April 2001. It was adjourned at Ms Renwick's request three days before the hearing on the basis of ill-health. That ill-health was unspecified. The adjournment was followed by what the Employment Tribunal described as a voluminous application for further and better particulars, questionnaires and requests for third party disclosure. We would note that it has always been the Respondent's case that some witnesses were required to travel from Jersey in the Channel Islands to give evidence at the Employment Tribunal. The Final version of the Originating Application is dated 28 June.
10. On 24 September the merits hearing began and lasted some four days. Ms Renwick arrived with a large bundle of documents which was said to have been in an unmanageable state despite orders having been made for an agreed bundle and despite the willingness of the Respondent's solicitors to help in the preparation of a bundle. It is only fair to point out that although she was perhaps, in delay, additional delay was caused by events wholly outside her control because she was in North America when the unfortunate events of 11 September 2001 occurred. But the result was that the first day of the hearing was spent by the Employment Tribunal in reading relevant documents.
11. The case was then adjourned after four days to 22 January for a three day hearing and directions were given which included directions that both parties should file skeleton arguments. On 8 January Ms Renwick complained to the Employment Tribunal under a document that was headed 'Application for Directions' about the conduct of the Employment Tribunal; in particular she criticised the Employment Tribunal for reading witness statements which of course was a case management decision by the Employment Tribunal designed to save time, and for asking her to sit at the advocate's desk. This is again something disputed by the Tribunal who have stated it was a helpful suggestion as the witness table was too small for the voluminous documents of the case and that the Applicant was already sitting at the advocate's desk. There were then allegations of intimidation by the Respondent's witnesses. She asserted she had been shouted at by the Chairman and that members of the Respondent's party were in her word 'snickering' and the Chairman did nothing to protect her.
12. These allegations were all in fact rejected in terms by the Chairman. She also sought further disclosure. On 10 January the Employment Tribunal wrote to Ms Renwick and asked her to prepare a list of the documents in her bundle that were not in the bundle prepared by the Respondent. That list was to be with the Employment Tribunal by 21 January. In the event that list was never prepared and Ms Renwick never prepared a skeleton argument. On 14 January she wrote to the Respondent's solicitors seeking an adjournment as she had a viral infection. It is suggested that this is not consistent with subsequent medical reports. She made no reference in this letter to any psychological problems and indeed said that she expected she would attend the hearing on 22 January.
13. On 15 January she wrote to the Employment Tribunal to seek an adjournment. She said that the CRE was now involved. The Employment Tribunal declined to adjourn the proceedings but stated that it would reconsider the matter on 22 January and that of course the CRE might be represented if it wished to be, as an intervener in the proceedings. On 21 January the Applicant prepared a document for the Employment Tribunal in which she said, inter alia, that her mental condition was deteriorating. She did not say, however, that she was unable to continue with the hearing. She sought an adjournment because she needed legal representation. She was in financial difficulties and she expressed concern as to potential liability for the costs of all parties attending if an adjournment was then to be granted. She feared she might be ordered to pay costs on the basis that she was conducting the proceedings in a frivolous or vexatious manner. We have already pointed out that the Respondent needed to bring witnesses from the Channel Islands. The Employment Tribunal declined to adjourn the proceedings.
14. On 22 January the Applicant sought again an adjournment for the CRE to attend. The Application was refused. We should point out at this stage that over the first four days of the hearing the Applicant's evidence had been heard and we believe that a start had been made on the Respondent's evidence. The Employment Tribunal in its extended reasons then deals with what happened next. The Applicant having been refused an adjournment on the basis that the CRE might wish to represent her then applied for an adjournment possibly to the next day, and for the first time referred to medical matters. She said that she would try to return the following day. She said she could see her doctor that afternoon but if she did see her doctor she would not be able to return the following day as her doctor was in London. She said she had been ill for two or three weeks with a viral infection and was in a distressed state. She also said she had no job and could not get one and for the first time told the Tribunal that she was suffering from deep psychological problems. The unanimous decision of the Tribunal was that it would not accede to her application for an adjournment. There was no medical evidence produced to the Tribunal that she was unable to proceed. Further the Tribunal considered that any medical problem if real, had been known about for some time and there was no evidence produced to support her contentions. On the contrary the Respondent was "ready to go" as the Tribunal put it, their witnesses having travelled a very considerable distance to be available at the Tribunal.
15. The Chairman in his note recorded that the Applicant was very articulate and coherent. This view was shared by the two lay members of the Tribunal. Mr Lemon who, then as now, appeared on behalf of the Respondent, strongly opposed any adjournment other than a very short one in particular having regard to the terms of the letter of 14 January. The Tribunal therefore decided that the case would be adjourned until 2 pm and assistance would be given to enable the Applicant, Ms Renwick to find a pharmacist to assist with medication. Her response was she needed stronger medication than that.
16. We then quote paragraph 48 of the decision:

"Having listened carefully to the applicant's presentation during the morning of 22 January, the unanimous reaction of the Tribunal was that they did not believe the applicant. She had shown herself as extremely articulate (as ever). She had claimed to be shaking but none was apparent and we were left with a mystery as to why the applicant, a lawyer of great intelligence, had not seen fit to produce any medical evidence at all in support of her claim to be indisposed. It was our reaction that the applicant simply did not seem to be indisposed. It was our reaction that the applicant simply did not seem to be prepared for a hearing. She had her documents with her but no notes. When the Tribunal broke at 11.30 am, it was the view of all its members that they did not expect the applicant to return that afternoon and we were left with the suspicion that she was playing games with the Tribunal to get her adjournment anyway."

17. The Applicant subsequently in a letter to the Tribunal dated 12 February headed "Applicant's Compliance with Interlocutory Order dated 22 January 2002" had stated she arrived at the hearing assisted by an elderly relative who was a former nurse. She said her appearance was poor according to her companion and that she was clearly distressed. The Employment Tribunal did not agree that that was her state. While she was not so smartly turned out as she had been at the September hearing her appearance could certainly not be described as "apparently distressed" and she was able to conduct and express herself clearly, cogently and coherently. She had alleged that the Chairman had told her that the decision to refuse an adjournment had been made prior to the hearing, a decision not to allow postponement under any circumstances. He denies any such comment having been made. It is true that he made a comment that she was in many ways equal to Mr Lemon: a reflection say the Employment Tribunal of her formidable intellect. She was told where a local pharmacy was or if she preferred, the accident and emergency department of Southampton General Hospital.
18. The Tribunal then go on to record this and I think it important that we should set this out in terms:

"50 At 1 pm on 22 January 2002, Mrs Drake, a highly experienced clerk in the Tribunal office received a telephone message from the applicant as follows:

"Ms Renwick phoned to say that she would not be returning to Tribunal this afternoon as she went to see her doctor and subsequently has been hospitalised. She anticipates being in hospital for 72 hours and then will need aftercare."

51 That was completely untrue. Mr Lemon described it as a blatant lie. In paragraph 13 of her 12 February statement, (to which we shall come in due course) the applicant says that she left the Tribunal in a disturbed state and merely telephoned to say that she would not be in attendance at the resumed hearing at 2 pm. She admits that at the time she was not with her doctor, nor at the hospital. The Tribunal is in no doubt that Mrs Drake recorded the message from the applicant accurately."

19. The Employment Tribunal faced with a situation in which the Applicant, Ms Renwick, had simply absented herself from the Tribunal, made an Order which we have at page 28 in our bundle. The Order recorded that the Tribunal had received a telephone call from Ms Renwick to say that she would not be returning to the Tribunal as she had been to see her doctor and then been hospitalised and anticipated being in hospital for 72 hours and will need aftercare. Accordingly the Employment Tribunal adjourned the hearing generally and directed:

"4. The Applicant shall by 12 February 2002, supply to the Tribunal a full medical report, including a comprehensive account of medical aspects of today's events, particularly of any confinement to hospital and a prognosis relevant to the ability of the Applicant to be involved in Tribunal proceedings in the future."

20. The Tribunal noted that in any adjourned hearing the Respondent's witnesses will be coming from Jersey and Edinburgh. On 23 January a note was sent to the Employment Tribunal that the Applicant had been hospitalised yesterday and medicated until she could see her GP. In the document which we have at page 56 which is a skeleton argument in relation to the Respondent's application to strike out and dated 22 April the Respondent had this to say in relation to the telephone call:

"The Applicant wishes to clarify that the telephone call to the Tribunal was made from the Clapham Junction railway station. The Applicant left Southampton Railway Station between 11.30 and 12.00 pm. At the time of making this statement, the Applicant had not yet arrived at Middlesex Casualty Department. The Applicant denies stating that she had been to see her doctor or that she had been hospitalised. The Applicant would have said something to the effect she was on her way to the Hospital Casualty Department."

21. The document of 23 January which we have at page 30 had stated:

"I was admitted to West Middlesex University Hospital Casualty Department yesterday afternoon, and medicated until I could see my doctor this morning at 9.00 am. I expect to be admitted to a treatment centre by the end of this week."

22. A number of documents were sent to the Employment Tribunal but these to us seem to have been redacted. We looked at pages 33 and 34. Page 33 appeared to be original medical notes possibly from the hospital and it is quite clear that a substantial proportion has been redacted. At Page 34 the medical certificate from Dr Cundy again has been redacted and it appears and we assume that it was the Applicant who had done this (and we see her nodding) that she had erased or obliterated what the doctor had written as to the illness she was suffering from and had put [SERIOUS ILLNESS] in its place. We see that we have correctly understood.
23. In a document sent to the Tribunal and headed "Applicant's compliance with interlocutory order dated 22 January 2002" and which is dated 12 February and to which we have already made a brief reference the Applicant had this to say:

"13. The Applicant was devastated and left the Hearing in an acute state of mental distress. The Applicant boarded the 11.30am train from Southampton to London. At Clapham Junction Station around 1.00pm, the Applicant telephoned the Tribunal but has little recollection of the message left as she was severely disturbed by the events of the morning. The purpose of the message was to inform the Tribunal that the Applicant would not be in attendance at the resumed Hearing at 2.00pm. At the time the message was left, the Applicant was not with her doctor nor at the Hospital, as the Interlocutory Order has stated."

24. The Employment Tribunal refer to these matters at paragraphs 54-56 of their decision. Among the documents sent on 12 February were a number of medical reports including one from her GP, Dr Cundy and one from Dr Todd a family physician in Barbados. Dr Todd considered when he had seen her in December that she was suffering from dengue fever which would make it impossible for her to work. She had been treated and placed on three weeks sick leave. The Employment Tribunal noted there was no reference to any psychological issues and neither the report of Dr Todd nor Dr Cundy dealt in any way with the matters referred to in the order for directions.
25. The Employment Tribunal, therefore, in case Ms Renwick might have been under any misapprehension as to what was required by the order, a letter gave instructions to be written to her. This letter pointed out she had not supplied a medical report dealing with the matters referred to in the Interlocutory Order. In case she had misunderstood the Tribunal, they extended her time for compliance. A further report was then provided by Dr Cundy. This confirmed the Applicant was admitted to the West Middlesex University Hospital Casualty Department on 22 January where she was prescribed medication.
26. Dr Cundy confirmed that Ms Renwick attended his surgery the following day. The Chairman directed that the Tribunal again wrote to Ms Renwick to say her medical report had been received but it was still insufficient in that it did not explain what was required to comply with the Order of 22 January. She replied with the document to which we have made mention in part 'Applicant's argument 22 April'. A further letter was sent by the Tribunal on 24 January setting out precisely what medical information was required from the Applicant. Nothing further apparently was received for her.
27. On 22 March Messrs Moore and Blatch who acted for the Respondent made it clear that in the event that the Applicant had failed to comply with the Order of 22 January it would make an application to the Tribunal to strike out the Originating Application under the powers contained in Rule 4(a) to Schedule 1 of the Regulations. The Applicant was notified and on 28 March Moore and Blatch made clear that the application to strike out would be based in addition on Rule 15(2)(c) to which we will refer shortly.
28. In her letter of 22 April the Applicant asked among other things for the hearing to be resumed. We have already referred to the letter of 24 April and on 29 April the Employment Tribunal listed the application to strike out for 8 July. On 4 July Ms Renwick wrote to the President of Employment Tribunals, His Honour Judge Prophet complaining of the treatment that she had received and produced various documents suggesting that she was suffering from depression or anxiety. But there was nothing there to suggest directly that she had been unable to attend the Employment Tribunal in January or even in July.
29. We think it helpful or this point to refer to the powers of the Employment Tribunal. Firstly, the Employment Tribunal has been directed by Rule 10 of the Employment Tribunals (Constitution etc) Regulations to use its powers under the various rules set out in the schedules to the Regulations so as to achieve the overriding objective. That overriding objective is to deal with cases justly. And we now quote from sub Rule 2:

"(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate to the complexity of the issues; and

(d) ensuring that it is dealt with expeditiously and fairly.

(3) A tribunal shall seek to give effect to the overriding objective when it –

(a) exercises any power given to it by the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b) interprets any rule in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the tribunal to further the overriding objective."

30. The powers to strike out to which we have referred are Rule 4(8) which we quote:

"(8) If a requirement under paragraph (1) or (5) is not complied with, the tribunal –

(a) may make an order in respect of costs under rule 14(1)(a), or

(b) before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, the notice of appearance, and, where appropriate, direct that a respondent be debarred from defending altogether;"

The rule makes clear that the powers cannot be exercised until notice has been given to the party in default. The requirements referred to under paragraph 1 relate to directions given by the Tribunal and under paragraph 5 relate to the powers of the Tribunal to require witness attendance or disclosure or inspection of documents. Clearly, the Employment Tribunal had in mind in the particular circumstances of this case the order it had made in relation to the production of medical records.

31. Rule 15(2) provides that:

"(2) A tribunal may –

(c) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, misconceived or vexatious;"

Paragraph 15(2)(d) provides:

"(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or as the case may be, respondent has been scandalous, unreasonable or vexatious;"

Rule (3) again provides that no order should be made until the other party has been given notice of the application and an opportunity to show cause why the order should not be made. It seems to us that the Tribunal had in mind its powers under Rule 15(2)(d) rather than (c) as suggested in the letter of 28 March to which we have referred.

32. The Tribunal came to the following conclusions. In paragraph 57:

"57 In applying the Overriding Objective to the facts of this case, the Tribunal has been acutely aware that striking out the applicant's Originating Application would have the effect of depriving her of her right to have her claim heard further. As indicated below, we have unanimously found that the applicant has made a calculated attempt to manipulate the Tribunal's procedure to her own ends. Were there any doubt in our minds about that, we would have refused the respondents application since we are conscious of the applicant's right to have her case adjudicated upon."

In paragraph 58 the Tribunal found that:

"58 A factor that has weighed heavily in the competing considerations has been the fact the applicant is a woman of the very highest intelligence, used to making presentations to individuals and groups of people and who is well aware of the impact of various courses of action. At all stages, including at the hearing on 22 January she showed very considerable self-awareness. The applicant has endeavoured to portray herself as an uninformed victim of a complex system, but we are in no doubt that at all stages she has been well-aware of what she was doing and its impact on the Tribunal process."

At paragraph 60 the Employment Tribunal had this to say:

"60 At some time between the hearing in September and the resumed hearing on 22 January 2002, it seems that the applicant made what can only be assumed to have been a conscious decision on her part that the proceedings would be run according to her agenda and not one set by the Tribunal with a view to ensuring so far as possible a balance of fairness between the parties. For example, both parties were instructed in September to prepare skeleton arguments and to exchange them seven days prior to the resumed hearing. The respondents produced and served theirs, but the applicant neglected to produce any. We were never given any explanation for her failure, but there can be no doubt that for one party to have a note of the opponent's arguments whilst not disclosing their case to the other party gives the former an undoubted advantage. Given her professional background, we have little doubt the applicant would have been aware of this."

The Tribunal go on to find that Ms Renwick would have been aware that:

"the respondents would have invested considerable resources in preparing for the hearing on 22 January. She knew that solicitors and counsel would be instructed and that witnesses would be called from distant locations."

33. The Employment Tribunal noted that on 15 January when she had asked for an adjournment to enable the Commission for Racial Equality to review her claim she had made no mention of any medical problem. She was informed that that application would be considered as a preliminary issue. The Chairman took the precaution at that stage of indicating that if the CRE proposed to intervene they would arrange representation. The Chairman was doubtful whether the CRE would in fact intervene but had they indicated a willingness to do so, even by letter there is no doubt the adjournment would have been granted for that purpose. There was no point in a needless adjournment should the CRE, as expected, choose not to intervene.
34. The Employment Tribunal then say this at paragraph 63:

"63 Going by the quality of the submissions made on 8 January 2002 and the clarity and coherence of the correspondence with the respondents Solicitors, we are in no doubt that during January 2002, the applicant, whilst probably still affected to some extent by the fever referred to by Dr Todd was well able to take the fairly basic steps required to provide skeleton arguments, to put together the list of documents requested by the Tribunal on 10 January and to prepare her case generally. In her correspondence, she never mentioned any psychological problems at all. Prior to 22 January, there was no indication whatever from the applicant that she would be unable to proceed on that day for medical reasons. Had she produced a doctor's letter prior to the hearing, or even on the day, confirming she was medically unfit to appear in a Tribunal, then it is more than likely an adjournment would have been granted."

35. The Employment Tribunal then go on to note that on 22 January the Applicant did not appear ready to continue. She did not have her notes with her and it was apparent to us, say the Tribunal, on the day she was simply refusing to continue. When she left, the Tribunal did not expect her to return at 2 pm and regarded her promise to do so with a considerable degree of scepticism. Nevertheless, if she had returned to London and had indeed been hospitalised (as she said in her message to Mrs Drake), the sympathy of the Tribunal would have been with her and there would have been no question of striking out her claim.
36. However, the Tribunal noted that what she had told the Tribunal was in fact simply untrue. No document had been produced to the Tribunal to show that there was anything medically wrong with her to the extent she was incapable of proceeding with the hearing. The Employment Tribunal noted that Dr Cundy who had seen Ms Renwick twice in January in relation to an illness in which depression "may be a feature" says that she was referred to specialist psychiatric service with a view to an appointment on 18 March 2002. Ms Renwick told the Tribunal that she would be able to get a further report to the Tribunal "this week" and could get a comprehensive report but it would take time. The Tribunal was given no explanation of why it had not been possible for her to obtain a medical report before 8 July.
37. She again held out the hope that the CRE would help her in her case or, failing them the CAB. The Tribunal then say this at paragraph 67:

"67 We are, therefore, given yet further promises of action by the applicant in the future. We can have no realistic expectation of when the adjourned hearing of this case might take place."

In paragraph 68 the Employment Tribunal state:

"68 If we had not formed the firm view that the applicant was seriously at fault in regard to this delay, we would, within reason, have little difficulty in accommodating any problems, medical or otherwise that she may be suffering. Employment Tribunals are used to dealing with applicants and respondents whose cases have to be postponed for medical or other reasons. In this case, however, we find it difficult to disagree with Mr Lemon's submission that the applicant has embarked on a policy with the intention of dragging out the proceedings as far as she possibly can and maximising the cost of the respondents of defending them. In making every allowance for the applicant, we must remember that the respondents are entitled to the benefit of the Overriding Objective particularly in the saving of expense and ensuring that the case is dealt with expeditiously and fairly. Mr Lemon was right to emphasise the increasing risks of injustice occasioned by fading memories and also the stress caused to witnesses who are waiting to give evidence."

38. The Employment Tribunal therefore ordered that the Originating Application be dismissed pursuant to Rule 4(8) "having regard to all circumstances of the case" on the ground "that her conduct of the proceedings has been unreasonable and vexatious."
39. Before turning to deal with the reasoning of the Tribunal we bear in mind what Lord Hope said recently in the case of Shamoon that the quality that is to be expected on the Employment Tribunal's reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained but the circumstance in which the Tribunal works should be respected and the reasoning ought not to be subjected to an unduly critical analysis. That of course simply reflects well known propositions that one finds set out in many other cases and we assume that Mr Underwood, whom we know sits as a part-time Chairman of Employment Tribunals is well aware of that principle himself. The case was not cited by Mr Underwood or by Mr Lemon but we do not feel that it is going to take either of them by surprise
40. Our attention was drawn by Mr Underwood in support of his submissions to the well known case of De Keyser v Wilson. We should point out that Mr Underwood's submissions really came to this. It is contrary to practice and it is a denial of the Applicant's right to a trial and her human rights under the Act if she is deprived of the opportunity of a trial on the grounds of some default when a fair trial is still possible and Mr Underwood stressed to us on a number of occasions that a fair trial was still possible. The Employment Tribunal did not say in terms that a fair trial was not possible and it would be extremely difficult to envisage circumstances where a fair trial was impossible where the Applicant's evidence had already concluded at the application to strike out was made.

.

41. We therefore turn to the decision in De Keyser v Wilson [2001] IRLR 324. Sir John Lindsay the President of the Employment Appeal Tribunal gave the judgment of the Tribunal. During the course of the judgment the Employment Appeal Tribunal cited extensively from the decision in Logicrose v Southend United Football Club and Arrow Nominees v Blackledge:

"24

As for matters not taken into account which should have been, the tribunal nowhere in the course of their exercising their discretion asked themselves whether a fair trial of the issues was still possible. In a case usefully drawn to our attention by both sides' counsel, namely Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167, the Court of Appeal had before it a case where the judge below had more than once declined to strike out the proceedings on the basis that whilst one party .had, in the course of discovery, disclosed forged documents and had lied about the forgeries during the trial, a fair trial was, In his view, still possible. We pause to reflect on the magnitude of the abuse there in comparison with Mr Pollard's and De Keyser's. Whilst in other respects the context of the Arrow Nominees case is very different, there are passages In the Judgment In the Court of Appeal of relevance. Thus at p.184 there is a citation from Millett J's judgment in Logicrose v Southend United Football Club Ltd [1988] The Times 5 March 1998 as follows:

'But I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct, however deplorable, unless there was a real risk that that conduct would render the further conduct of proceedings unsatisfactory .The court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice. ,

In Arrow Nominees, Chadwick LJ adopted those observations in a passage which, although directed to discovery, is of more general application. Thus at p. 1939-h one finds:

'But for my part I would allow that appeal on a second, and additional, ground. I adopt as a general principle, the observations of Millett J in Logicrose ...that the object of the rules as to discovery is to secure the fair trial of the action in accordance with due process of the court; and that, accordingly, a party is not to be deprived of his rig ht to a proper trial as a penalty for disobedience of those rules, even if such disobedience amounts to contempt for or defiance of the court, if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the processes of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled, indeed, I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.'

Later, Ward LJ, speaking of the risk of a fair trial not being possible, said at p.2O1:

'It undoubtedly is a factor of very considerable weight. It may often be determinative. If the court is satisfied that the failure to disclose a document or the effect of a tampered document can no longer corrupt the course of the trial, then it would be a factor of much less and perhaps even little weight in considering a strike-out. Where, in my judgment, Evans-Lombe J erred, was to treat the question of a fair trial as the only material factor. It was not; other matters have now to be put into the scales and weighed.'

25

We must keep in mind, too, that the case at hand is a case not involving disobedience to or failure to perform an order of Court; wilful, deliberate or contumelious disobedience was not in issue. Parts of those passages from Arrow Nominees and in particular the passage from Logicrose show the great importance, in relation to a discretion to strike out the whole of a case where there has been no such disobedience, of an inquiry into whether a fair trial is or is not still possible. Unfortunately, there is no sign whatever of that having been considered by the employment tribunal in the case before us. Whilst no one would suggest that it is incumbent upon a tribunal necessarily to set out every consideration which, in the exercise of its discretion, affects its mind one way or another, to leave out so crucial a factor as the question of whether .a .fair trial is still possible either indicates that the matter was not within the contemplation of the tribunal (thereby committing the error of law of leaving out of account something which so obviously should have been taken into account) or, if the matter had truly been in the tribunal's mind but is omitted from express mention, leaves the tribunal open to argument that it has failed the Meek v City of Birmingham [1987] IRLR 250 test.

26

Having found matter taken into account which should not have been and crucial matter which should have been taken into account but was not, we must hold that the tribunal erred in law in relation to the discretion which we have for the purposes of argument, assumed that it had. We must therefore allow the appeal and set aside that exercise of the discretion."

42. It is right therefore to say that the Employment Appeal Tribunal considered that as a general rule it is inappropriate to strike out an Originating Application where a fair trial is still possible and that the risk of a fair trial not being possible is to be regarded as a factor of very considerable weight which may often be determinative. However, as the passage we have cited makes clear, that case was not a case involving disobedience to or failure to perform an Order of the Court nor was it a case that entailed wilful, deliberate of contumelious disobedience. It seems to us that the position where deliberate, wilful or contumelious disobedience is involved or we would say deliberate and malign manipulation of the Employment Tribunal process, different considerations apply.
43. Our attention was also drawn to the more recent decision of Bolch v Chapman an unreported decision of the Employment Appeal Tribunal of 19 May 2003 presided over by Burton P Burton P reiterated that it is not sufficient for the powers to strike out being engaged that a party has behaved unreasonably but that the "proceedings had been conducted by and on his behalf unreasonably" and we draw attention to what Burton P said in paragraph 55. Burton P again referred to the decision of De Keyser v Wilson and said:

"De Keyser makes it plain that there can be circumstances in which a finding can lead straight to a debarring order. Such an example, and we note paragraph 25 of Lindsay P's judgment, is "wilful, deliberate or contumelious disobedience" of the Order of a court.

But in ordinary circumstances it is plain from Lindsay P's judgment that what is required before there can be a strike out of a Notice of Appearance or indeed an Originating Application is a conclusion as to whether a fair trial is or is not still possible."

44. We bear in mind again as Mr Lemon pointed out basing himself on the decision in Andreou v The Lord Chancellor's Department [2002] IRLR 728 that fair trial involves a fair trial so far as both parties are concerned. Peter Gibson LJ said at paragraph 46:

"46

The tribunal in deciding whether to refuse an adjournment had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course, an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights, having regard to the terms of Article 6): they had to include fairness to the Respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those complaints such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. This case concerned events which took place very many years ago, well outside the normal three months limitation period. The tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened employment tribunals are these days. Fairness to other litigants may require that indulgences given to those who have had the opportunity to justify an adjournment but have not taken that opportunity adequately are not extended. It was a matter of particular concern that no indication was given in the evidence of Mrs Andreou either as to when the medical evidence which she required from the consultant would be available, nor as to when it might be that this case could come on for trial. Viewing the case in the round and considering all the circumstances referred to by the tribunal, I cannot see how it could be said that in refusing the application the tribunal was perverse or otherwise plainly wrong in refusing a further adjournment."

45. We would also refer to the decision in Taylor v Anderson an unreported decision of the Court of Appeal, 7 November 2002 EWCA CIV 1680 [2002] in which Chadwick LJ had this to say at paragraph 11:

" It is accepted on behalf of the defendants, however, in this court (and, if I may say so, properly accepted) that, on the present state of the authorities, including authorities in this Court, these proceedings ought not to be struck out unless an unequivocal affirmative answer can be given to the question: is there a substantial risk that a fair trial is impossible? Tested by that criteria, the district judge's conclusion that there was considerable doubt about whether there could be a fair trial – or that it was unlikely that there could be fair trial – does not, in my view strike out. What is required is not "considerable doubt" or recognition that "it was unlikely"; but a substantial risk of the impossibility of a fair trial. It is that risk which the other parties should not be required to accept; in circumstances where the risk has been created by the conduct or inactivity of the claimant."

46. In our opinion the decision of the Employment Tribunal in this case cannot be faulted. Firstly, reading the decision as a whole it is quite clear that the Employment Tribunal came to the conclusion that by reason of the way in which Ms Renwick had conducted the proceedings a fair trial was no longer possible. It is quite clear that the Employment Tribunal had, in coming to this conclusion regard to the overriding objective and to all relevant matters including the fact that it was quite unclear when a hearing might ever resume the failing of witness's memories and also to the increased and disproportionate costs that were being borne by the Respondent in circumstances where it was quite apparent that the Applicant lacked the means to make any substantial payment in respect of costs on her own case. We are therefore satisfied that the Employment Tribunal in this case did turn their minds to the question of whether a fair trial was possible and come to the conclusion that it was not.
47. Secondly, it seems to us that this one of those perhaps rare cases in which an Applicant has behaved in such a scandalous way that it would be an affront to justice to permit her to obtain the benefits of her wrong doing. This is a case in which there had been a failure by the Applicant which was unexplained and clearly regarded by the Employment Tribunal as wrongful, to disobey orders of the Tribunal both in relation to the serving of a skeleton argument and in relation to the provision of an appropriate medical report. Her conduct generally as it seems to us, and as described by the Employment Tribunal as being a deliberate calculated attempt to manipulate the Tribunal for her own ends together with the fact she had embarked on a policy with the intention of dragging out the proceedings so as far she possibly could, thus maximising the cost to the Respondents of defending them, more than justified the Employment Tribunal in the exercise of its discretion in coming to the conclusion it did. It was entitled to find that her conduct was such that it was wholly appropriate for the proceedings to be struck out there and then.
48. In those circumstances therefore we say that the appeal must be dismissed. We are grateful to Mr Lemon and we would again wish to express our thanks and gratitude to Mr Underwood for the time and care that he has taken in presenting Ms Renwick's case.