Appeal No. UKEATS/0065/08/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 2 June 2009

Before
THE HONOURABLE LADY SMITH
MISS A MARTIN
MR J KEENAN

CASTLEMILK GROUP PRACTICE	APPELLANTS

DR P CHAKRABARTI	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants
	MR D WALKER
(Solicitor)
Messrs Dundas & Wilson LLP Solicitors
191 West George Street
Glasgow
G2 2LD	
For the Respondent
	MR A HARDMAN
(Advocate)
Halliwells Solicitors 
St James Court
Brown Street
Manchester
M2 2JF

SUMMARY

Response struck out by Tribunal after evidence led on the merits, before submissions and before remedies hearing in claim by a GP of unfair dismissal and age discrimination against practice in which he had been a doctor in circumstances where a documents and questions order found not to have been complied with and there had been prior late production of documents.  Tribunal’s decision on strike out motion reversed on appeal.  It had not been entitled to find that there had been non compliance with orders and the circumstances did not justify taking the draconian step of striking out the response.

THE HONOURABLE LADY SMITH

INTRODUCTION
1.	This is an appeal against the outcome of a strike out motion.  The motion was made at a hearing on 16 June 2008.  The judgment of the Employment Tribunal sitting at Glasgow, registered on 15 September 2008, Employment Judge Mr R Williamson, was in the following terms:

“The judgment of the Employment Tribunal is that the response be struck out on the grounds (a) that the respondent has failed to comply with Orders of the Tribunal and (b) that the manner in which the proceedings have been conducted by or on behalf of the respondent has been unreasonable et separatim vexatious.” 

2.	Although the case was at the stage of a full hearing (which had started on 22 October 2007, continued on 23 and 24 October, and on 15 – 17 January 2008), the Employment Judge designated the start of the continuation of that hearing on 16 June 2008 as a pre hearing review.  Lay members were present but designated as in attendance and the decision on the motion to strike out was taken by the Employment Judge alone.  In these circumstances, I considered it appropriate to sit in this Tribunal with lay members in attendance with the decision on the appeal being taken by me alone although after discussion of the issues raised in the appeal with the lay members.  They agreed that that procedure was, in the circumstances, appropriate. 

3.	I will continue to refer to parties as claimant and respondents.

4.	The respondents were represented by Mr D Spence, solicitor, before the Tribunal and by Mr D Walker, solicitor, before me.  The claimant was represented by Ms R Eeley of counsel before the Tribunal and by Mr Hardman, advocate, before me. 

BACKGROUND
5.	On 29 March 2007, the claimant, who is a General Practitioner, lodged a form ET1 in which he alleged that he was an employee of the respondents, that he had been unfairly dismissed and that he had been discriminated against on grounds of age.  His date of birth was 12 September 1946 and he left the respondents’ practice on 15 January 2007.

•	The respondents’ solicitor, Mr Spence, lodged their response on 30 April 2007.  Their position was stated to be that he was a partner, not an employee, that it had been agreed that the claimant would retire at age 60 and that there had been no discrimination against him on grounds of age.

•	Under the usual questionnaire procedure, a questionnaire was served on 17 April 2007 and responded to in a document dated 8 June 2007.

•	The Employment Judge initiated correspondence in which it was agreed that there would not be a pre hearing review to determine the claimant’s status.  A hearing was fixed for 22/24 October 2007. 

•	Prior to the hearing in October 2007, parties exchanged a significant volume of documents.  By the end of that exchange the claimant’s solicitors understood that all relevant documents had been disclosed by the respondents.  No documents orders were sought.  

•	On 22 October 2007, at the start of the hearing, Mr Spence sought leave to amend the respondents’ ET3 to add an additional defence based on concerns regarding the claimant’s performance.  His motion was, after argument, refused.

•	On 23 October 2007, the claimant gave evidence in chief and in cross but his evidence was not completed.  In the course of the hearing, parties undertook to seek to agree a figure for pension loss.

•	On 24 October 2007, the day began with Mr Spence moving to allow further documents to be lodged.  The Tribunal allowed him to do so; they do not appear to have been lodged formally until the continued hearing on 15 January 2008 but there does not seem to have been any difficulty about that.  The claimant’s evidence would have concluded at about 12 noon but Mr Spence asked to be allowed time to lodge a document relating to a partner’s “Away Day”.  He also sought time to consider and take advice as to what would be the consequences for the respondents regarding the Age Discrimination Regulations if the claimant was found to have been a partner who was wrongfully expelled by them.  The Tribunal allowed the hearing to be adjourned at 12 noon but made a Wasted Costs Order in favour of the claimant in respect of one and half days of hearing.  A continued hearing was fixed for 15–17 January 2008. 

•	On 12 December 2007, the claimant’s solicitors wrote to the Tribunal and copied their letter to Mr Spence.  The respondents and their accountant had been seeking to communicate directly with the claimant in relation to the recovery of sums they said were due from him as a partner; that concerned the claimant’s solicitors.  They had also not been able to agree a pension loss figure.  The claimant’s solicitors alleged in their letter that the respondents were thus conducting the proceedings in an unreasonable and vexatious manner and asked the Tribunal strike out their response, which failing make orders (a) requiring the respondent and Mr Spence to desist from seeking to communicate directly with the claimant until after the close of the case, (b) requiring the respondents to confirm whether or not they intended to rely on any further documentation in relation to the claimant’s status and if so to provide copies, and (c) to confirm whether or not the pension loss figure proposed on behalf of the claimant was agreed.  

•	By letter dated 18 December 2007 to Mr Spence, the Tribunal requested that he respond to the matters raised in the claimant’s solicitor’s letter by 27 December 2007.  Mr Spence did not respond.  The Tribunal fixed a Case Management Discussion to take place by telephone conference call on 10 January 2008.  

•	On 10 January 2008 the CMD took place.  Mr Spence apologised for not having responded, referring to certain pressures he had been under.  He agreed the pension loss figure proposed on behalf of the claimant and undertook on behalf of the respondents that no further action would be taken against the claimant in respect of the sums that they alleged were due to them by him until the Tribunal had determined the claimant’s status.  He also undertook to lodge the “Away Day” document as a matter of urgency.  He said there were no other documents on which the respondents wished to rely.

•	On 11 January 2008, Mr Spence sent copies of the “Away Day” document to the claimant’s solicitors.

•	The hearing recommenced on 15 January 2008.  The claimant’s evidence was completed.  Dr McKinnon, the respondents’ managing partner, began her evidence.  At about 2.40pm, she said that the fact that the claimant was a partner was supported by certain minutes of partnership meetings.  They were not productions.  The claimant’s solicitor had, at an earlier stage, informally requested disclosure of any relevant partnership minutes but had not sought any orders in that respect.  

•	The remainder of the January hearing was, as the Tribunal puts it:  
“taken up with attempts by Mr Spence to clarify and obtain such relevant documents as his client wished to rely upon and a motion by Ms Eeley and (sic) behalf of the claimant that the response should be struck out.”

She submitted that there had been a “drip, drip, drip” of documents which should have been disclosed earlier and been the subject of cross examination of the claimant.  The motion was not granted.  The hearing was adjourned to enable Mr Spence to obtain and disclose the minutes referred to and any other relevant minutes and also “certain accountancy communications” to which Dr McKinnon had made reference in her evidence.  No orders were made in that regard, however, nor were any specific undertakings given.  Mr Spence undertook to produce witness statements by 14 February 2008.

•	On 22 February 2008 the claimant’s solicitors wrote to the Tribunal requesting that the Tribunal strike out the response; Mr Spence had not been in touch since the January hearing.  

•	On 28 February 2008 the Tribunal copied the claimant’s solicitor’s letter of 22 February to Mr Spence asking for his comments by 29 February.

•	On 3 March 2008, Mr Spence responded.  The witness statements were in draft and would be sent within seven days.  He was to speak with his clients.

•	On 5 March 2008, the Tribunal wrote to Mr Spence requiring him to confirm no later than 17 March 2008 that the witness statements and “information requested by the claimant’s solicitors” had been provided.  That reference to “information requested” would seem to be a reference back to the minutes and accountancy communications mentioned above.  Mr Spence confirmed by letter of 17 March that the witness statements had been sent and that he was in the process of obtaining the other documentation.  

•	In paragraph 18 of its reasons, the Tribunal states:  
“As a result of the respondent’s solicitor’s failure to fulfil the undertakings he had made (even after prompt) at the conclusion of the hearing in January 2008 the Employment Judge instructed an appropriate Document Order and appropriate Questions Order conforming to the schedule to the claimant’s solicitor’s letter of 22 February 2008 be issued.  Said Orders dated 28 March 2008 were sent to the respondent’s solicitors correctly addressed on 28 March 2008.  The Orders required to be fulfilled within twenty one days and contained the usual warning as to criminal prosecution and strike out in the event of non-compliance.  Copies of said Orders were sent to and received by the claimant’s solicitors.”  

•	The Tribunal made no finding that the Orders of 28 March 2008 were received by the respondents’ solicitors.  Mr Spence subsequently advised that he could not trace having received them.  

•	The Orders of 28 March 2008 went significantly beyond the matters of the partnership minutes and accountancy communications referred to at the January 2008 hearing.  

•	The Questions Order Schedule was in the following terms:   
“1. 	What holidays did the Claimant take during his period of engagement by the respondents?  

2. 	What is the basis of Dr Chan’s and any other salaried partner’s remuneration?” 

•	The Documents Order Schedule was in the following terms:
1.  	All and any accountancy correspondence between the Respondents and their Accountant from January 2004 until January 2007.

2. 	 Copy of the contract of employment of Dr David Chan and any other salaries (sic) partners of the practice.  
3.  	A copy of the email from Dr Peter Wiggins to Dr Carole McKinnon and Debbie Hamilton dated 15 November at 16.16 which is entitled: “FW:  our dispute.” 4. Copies of all Partner’s meeting notes from January–March 2007 onwards or alternatively confirmation that these do not exist.

4.  	Copy of the properties of the document entitled “GP Meeting on Tuesday 7 June 2005” showing the modification date.  

•	The Tribunal records at paragraph 19 that the Orders were not complied with and the claimant’s solicitors wrote to the Tribunal complaining of their non compliance by letter dated 28 April 2008 which was copied to Mr Spence. 

•	On 19 May 2008 the Tribunal wrote to Mr Spence requesting representations as to why the response should not be struck out.  

•	Mr Spence responded by letter of 27 May 2008 in which he advised that he could not trace having received the orders, that substantial prejudice would be suffered by the respondents if their response was struck out, that he would be in a position to lodge all the original information sought by the claimant by the end of the week, that he had produced all the information sought in the original questionnaire timeously and answered the specific calls made, that since the case last called he had had a number of personal issues to contend with to the extent that he had considered withdrawing, that any failings were not the respondents’ own failings and that he would wish an opportunity of addressing the Chairman personally on the strike out matter.  The Tribunal copied his response to the claimant’s solicitors.  Their response showed that they were evidently still insisting on their motion to strike out the response.

•	The Employment Judge instructed that the motion to strike out would be considered at the start of the adjourned hearing on 16 June 2008 which would be designated a pre hearing review.  By that time, Mr Spence had not produced all the information and documents specified in the Orders.

The Motion to Strike Out the Response
6.	The motion was moved under rule 18(7) (c) and (e) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.  Ms Eeley submitted that the respondents had shown total disrespect for the Tribunal’s authority and she did not believe that the claimant could receive a fair trial if the respondents were allowed to continue to defend the claimant.  The Tribunal states:

“She referred to a decision of the Appeal Tribunal in Scotland, Rolls Royce v Riddle (UKEATS/ 0044/ 07/ MT), a case involving strike out for “excessive delay” as supporting authority for the proposition that strike out can occur without the Tribunal having to be satisfied that a fair trial was not possible.”  

7.	She submitted that the respondents’ conduct had been unreasonable and vexatious.  The Tribunal does not record what was the basis for the latter submission.  

8.	Mr Spence stated that he accepted full responsibility for the conduct of the litigation.  His clients were not responsible for any of the failures that had occurred.  In hindsight, he should not have taken the case on; it had “grown arms and legs”.  He accepted that he had not been efficient, he said that he had “buried his head in the sand”, that although counsel had been involved he had a “block” which prevented him instructing counsel, and that whilst he had been communicating with his clients by e-mail he had discovered that e-mails had not been received because of the “two tier” system they used to distinguish between NHS and external emails.  He had some of the outstanding documentation and should have the remainder by the following morning.  

The Tribunal’s Decision
9.	The Tribunal granted the motion.  It concluded that there had been a deliberate and persistent failure to comply with orders.  It refers to the background as being a failure on the part of Mr Spence to respond and co-operate; that led to the issue of the orders.  Even allowing for his position that he had not received them, he should, it said, have been aware of their existence when he received the letter of 28 April.  The Tribunal (at paragraph 33) states that as at that date there was no compliance, “not even in part”, which cannot, on its own account, be correct;  Mr Spence is recorded by the Tribunal as having indicated, at the hearing on 16 June, that he had some of the documents.  The Tribunal concluded that despite Mr Spence having declared that he did not intend to do so, he had “on behalf of his client” deliberately and persistently failed to comply with orders of the Tribunal.  

10.	In paragraph 34, the Tribunal addresses the issue of whether or not the conduct of the proceedings by or on behalf of the respondents had been unreasonable or vexatious.  Dr McKinnon is criticised by the Tribunal.  It states that she “could not have been other than aware” that the Tribunal regarded the conduct of their case to be unsatisfactory given that only 2½ days had been used productively so far and that there had been a wasted costs award made.  That conclusion appears to be based on the observations at paragraph 26 to the effect that Dr McKinnon was present at the hearings other than when legal argument was taking place.  There is, however, no finding that Dr McKinnon was party to the CMD or aware of what had been passing in correspondence between the solicitors and the Tribunal.  There is no finding that she had any awareness of the orders of 28 March.  

11.	The Tribunal concludes that the proceedings had been conducted unreasonably and vexatiously by and on behalf of the respondents (paragraph 34).  The basis for including the respondents themselves in that finding is as noted above.  The Tribunal states that the manner in which the proceedings had been conducted was “manifestly unreasonable” under reference to persistent failure to co-operate with the smooth conduct of the litigation, failure to respond to correspondence timeously or at all, failure to fulfil undertakings made and failures to comply with the Tribunal’s Orders.  It adds a finding that that manner had been “et separatim vexatious” without further explanation.  

12.	At paragraph 35, the Tribunal addresses the question of whether a fair trial was now impossible and states:

“Although getting perilously close to such a conclusion the Tribunal has concluded it has not albeit that such an outcome (viz a fair trial) would have required the respondent to urgently disclose the remaining relevant documentation.” 

13.	The Tribunal does not explain why, for there to be a fair trial, it was necessary for the claimant to recover the documentation referred to in the documents order.  The Tribunal does not suggest that a response to the questions order would be needed for there to be a fair trial.  The Tribunal then, however, concludes that it could not have any confidence in Mr Spence producing the remaining documentation, given the history of his conduct of the case.  

14.	As to the question of whether strike out was proportionate, the Tribunal found that it was on the basis that the respondents had been given every opportunity to get their case in order, that the claimant was entitled to expect expedition, that the hearing should have concluded in January 2008 and that the Tribunal had no confidence that it would be concluded at the June hearing if the respondents were to be allowed to defend their position.  No consideration is given to the potential prejudice to the respondents if they were to be barred from doing so.

15.	In the last paragraph of its reasons, the Tribunal states:

“The Tribunal decided that following upon strike out that the merits hearing should be concluded on the basis of no participation by the respondent and that thereafter there should be a hearing on expenses under Rule 48.”  

16.	The Tribunal appears, accordingly, to have determined that the response should be struck out because there had been a failure to comply with its orders and also because the proceedings had been conducted unreasonably and vexatiously.  It is evident, however, that in reaching its conclusion on the latter, one of the factors that weighed with it was the failure to comply with its orders.  

17.	No reference is made by the Tribunal to the documents that Mr Spence referred to as having with him at the hearing of 16 June 2008 being lodged or to any further steps to be taken in respect of the other documents referred to in the order (which Mr Spence said he should be able to locate by the following morning), it would appear that the Tribunal was satisfied that the claimant could, provided the response was struck out, have a fair trial without the documents and, in the absence of any reference having been made to it on 16 June, also without any answers to the questions contained in the questions order.  

18.	After the strike out motion was granted on 16 June, no further evidence was led from the respondents’ witnesses, the claimant was re- examined and the evidence on the merits completed.  A schedule of loss was produced by the claimant’s barrister but the Employment Judge asked that it be redrafted to show what the loss would be if the claimant were a partner and what it would be if he were an employee.  He also asked for the pension loss figure to be grossed up.  Although the June diet was a three day diet, nothing further took place at that stage.  The Employment Judge indicated that he would postpone making a decision on the merits until the appeal days in respect of the strike out judgment had expired.  He said that if the appeal was successful, he would allow the respondents ‘back in’ to carry on.  Dr McKinnon was in the public benches at that point and he spoke directly to her.  

19.	After the hearing, the claimant’s solicitors lodged a detailed schedule of loss bringing out a claim totalling £347,274.  Other documentation was also lodged by them.  By letter dated 27 August 2008 to the claimant’s solicitors and copied to the respondents’ new solicitor, Mr Walker, on the instructions of the Employment Judge, the Tribunal wrote in terms which included the following:

“(2)  Future Procedure
Having considered extensive documentation recently lodged by the claimant’s solicitors on quantum, the Employment Judge is minded to proceed the following way:-

(1)	On the expiry of the days for appealing the strike out judgment without appeal (or earlier, should the respondent intimate that no appeal will be lodged), the Tribunal will issue a judgment on the merits.  That judgment will inevitably determine the former status of the claimant.

(2)	Thereafter, a remedies hearing would be arranged to consider the relevant documentation on quantum and to hear such further evidence as may be appropriate and for submissions to be made.

The Employment Judge has formed a preliminary view that it would be appropriate to allow the respondent to participate and be represented by its new solicitors at this hearing.”

20.	The letter does not explain (a) how or why the Tribunal felt able to assume, at a stage where the merits of the claim had not yet been determined, that a remedies hearing would be required, or (b) on what basis it could competently have allowed the respondents to participate in the remedies hearing whilst its judgment of 16 June 2008 striking out the response subsisted.  Nor does the letter indicate how or at what stage the Employment Judge’s view, there expressed as a preliminary one, might become a final one.  

Relevant Law
21.	Rule 18 of the 2004 Rules makes provision for pre-hearing reviews.  They are hearings of a preliminary or interim nature to dispose of issues which arise before the case gets to the stage of a hearing and which can appropriately be resolved at that stage.  I observe that in this case, the Tribunal held a pre–hearing review, on 16 June 2008, after the hearing had commenced (on 22 October 2008) and a real doubt is raised in my mind as to whether it was competent for it to do so.  Competency was not argued before me, however, and it is possible to dispose of the appeal on other grounds.  I, accordingly, will not determine the issue but my silence on that matter should not be taken as tacit approval of the procedure adopted of holding a pre-hearing review after the hearing of a claim has commenced.  It is difficult to see how, once a hearing is underway, anything that occurs in the course of it can be “pre” hearing in nature.  In the case of Peixoto v BT PLC UKEAT/022/07 HHJ McMullen commented at paragraph 47 that strike out under Rule 18(7) was a draconic measure almost never to be used at the hearing of the case but I would go further and question whether it can ever competently be used in the course of the hearing of the case, given that it is a power conferred only in the context of a pre–hearing review.  

22.	Rule 18(7) empowers a Tribunal to pronounce certain orders at a pre–hearing review.  Its terms include the following:

“(7) Subject to paragraph (6) a chairman or tribunal may make a judgment or order –
…
(c)  striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious.
…

(e)  striking out a claim or response (or part of one) for non-compliance with an order….”

23.	The power to strike out a response can have devastating consequences.  It is, accordingly, reasonable to expect it to be used sparingly and with restraint.  The nature of the power was summarised by Lord Justice Sedley in the case of Blockbuster Entertainment Ltd v James [2006] IRLR 630, where strike out of a claim was sought under Rule 18(7)(c), at paragraph 5:

“The power…..is a draconic power, not to be readily exercised.  It comes into being if………a party has been conducting its side of the proceedings unreasonably.  The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible.  If these conditions are fulfilled it becomes necessary to consider whether, even so, striking out is a proportionate response.”  

24.	He then referred with approval to the discussion of the relevant principles by Mr Justice Burton (President) in the case of Bolch v Chapman [2004] IRLR 140 where, at paragraph 55, he said:

“Assuming there be a finding that the proceedings have been conducted scandalously, unreasonably or vexatiously, that is not the final question so far as leading onto an order that the notice of appearance must be struck out … .in ordinary circumstances it is plain ….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 still possible.”  

25.	As Burton J then explains, a striking order is not a punishment and he refers to the judgment of Millet J (as he then was) commenting on similar provisions in the civil procedure rules, in the case of Arrow Nominees Inc v Blackledge [2002] BCLC 167 as reported in The Times: 

“…if the threat of such exclusion produced the missing document then the object of Order 24, Rule 16 was achieved.  In his Lordship’s judgment an action ought to be dismissed or the defence struck out only in the most exceptional circumstances once the missing document had been produced and then only if, despite its production, there remained a real risk that justice could not be done.” 

26.	Burton J, further, referred to the need for the Tribunal to consider, even if the fair trial question is found against the party opposing the strike out motion, what will be the consequences of granting it.  He observes that the effect of strike out of a response is that the case proceeds as if no notice of appearance had ever been served.  As Rule 3(3) of the 2004 Rules provides, the effect of that is that the relevant respondent is not entitled to take any part in the proceedings other than to apply for an extension of time in which to lodge a response.  

27.	In the case of Weir Valves & Controls UK Ltd v Armitage EAT/0296/03 strike out was considered in the context of a failure to comply with a Tribunal order in respect of the provision of witness statements.  HHJ Richardson discussed the relevant principles at paragraphs 13–17 and correctly, in my view, comments at paragraph 17 that it does not follow that striking out or any other sanction should always be the result of disobedience to an order since the guiding consideration must always be the overriding objective which requires justice to be done between the parties.  He continues, in a summary which neatly encapsulates the relevant considerations:

“The court should consider all the circumstances.  It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible.  It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.”  

28.	The relevance of considering whether or not the fault relied on was the client’s or the solicitor’s was confirmed by the Court of Appeal in the case of Bennett v London Borough of Southwark [2002] IRLR 407, a case where counsel’s conduct was disrespectful and inappropriate, at paragraph 24 where Lord Justice Sedley states:

“...the predicate of the use of the strike–out power by either the Warren tribunal or the EAT was not simply that Mr Harry’s own conduct should be able to be characterised as scandalous:  it was that the manner in which he had been conducting the proceedings on the applicant’s behalf should be able to be so characterised.  This requires attention to be paid to three distinct things:  the way in which the proceedings (which had gone on for 10 or 11 days) had been conducted:  how far it is right to attribute any misconduct of the proceedings to the applicant herself; and the significance in this context of the epithet ‘scandalous’.”

29.	Later, in paragraph 26, Sedley LJ explains, in a passage which is of particular relevance for the present case:  

“…what is done in a party’s name is presumptively but not irrebuttably, done on her behalf.  When the sanction is the drastic one of being driven from the judgment seat, there must be room for the party concerned to dissociate herself from what her representative has done.”

30.	The relevance of considering an alternative sanction was considered in the case of Turner v Sandham UKEAT/0028 /08.  It is also of relevance in the present case, since discrimination is alleged, to bear in mind the general view that, as HHJ McMullen put it in Peixoto:

“Discrimination claims in a diverse society cry out to be tried on their merits, see the speech of Lord Steyn in Anyanwu v South Bank Student’s Union 2001 UKHL 14.”

and although those comments were made under reference to the need to avoid blocking the airing of a discrimination claim by a claimant, it must be as important to allow a respondent the opportunity to resist such a claim before being labelled as having acted in a discriminatory fashion and possibly being faced with a substantial award of uncapped compensation being made against him.  It must also be of critical importance to recognise that if a response is struck out in a discrimination case then the onus of proof could shift to him, given the effect of the Burden of Proof Directive (EC No.97/80), yet he would be barred from seeking to discharge it.  That is liable to be highly prejudicial to a respondent and is a factor which ought to weigh heavily in the balance, in his favour, when considering a strike out motion.  

The Appeal
31.	For the respondents, Mr Walker submitted that the Tribunal had fallen into error.  This was an important case of potentially high value.  Its decision was predicated on the orders of 28 March 2008 having been served on Mr Spence yet that was put in issue and there was no finding that they had been served.  It was fundamental that the consequences of non compliance with an order could not be visited on the addressee if the order had not been served.  There could not be breach of an order which had not been served.  This was particularly important where, as here, criminal sanctions for non compliance were involved.  It was accepted that Mr Spence could have and should have enquired about them after he received the letter of 28 April but that was not the point.  

32.	The Tribunal had made no reference to the overriding objective.  That was significant.  

33.	The Tribunal had given no consideration to the content of the Orders when deciding whether or not non compliance with them justified strike out.  It had failed to observe that the e‑mail referred to had already been lodged by the respondents.  It had failed to observe that some of the calls extended to periods after the claimant had ceased working in the respondents’ practice.  It had failed to consider the reasonableness of the questions order.  It had, in short, failed to consider the materiality of the documents and questions sought in the orders.  It should not have found that the respondents themselves had conducted the case unreasonably.  There was no proper basis for doing so.  The Tribunal had obviously lost patience, perhaps understandably, but that did not mean that the strike out order was justified.  

34.	Mr Walker referred to the authorities noted in the ‘Relevant Law’ Section above.  

35.	He submitted that there were a number of alternatives open to the Tribunal which it should but did not consider.  It could have:
•	Allowed the respondents to try and complete their evidence hear submissions at the June hearing, or leave submissions until a later date
•	Granted an ‘unless’ order giving the respondents 24 hours to answer the outstanding orders and allowed the claimant’s barrister, if so advised, to recall the claimant
•	Struck out any of the respondents’ evidence which referred to any document not produced/not put to the claimant 
•	Drawn such inferences as it considered appropriate from the failure to respond to the orders, depending on their materiality
•	Granted an adjournment including service of an unless order with strict time limits which, if not complied with, would result in strike out
•	Awarded expenses against the respondents and/or their agents, possibly as a precondition of proceeding with the case 
•	Any combination of the above.  

36.	He submitted that it was plain that strike out was not a proportionate response.  He added that its effect, which was not considered by the Tribunal, was that their evidence would be excluded, a question arose as to whether evidence elicited on their behalf in cross examination of the claimant would be excluded and they would have no right to make submissions.  Further, the latter arose in circumstances where there was an issue as to the claimant’s credibility; at one point the Tribunal had had to tell the claimant’s daughter to move from where she was sitting as she was potentially giving the impression, by nodding, that she was giving an indication to the claimant as to how he should answer questions that were being put to them (as was conceded on behalf of the claimant).  There was then the question of quantum.  It was wholly unclear what the Tribunal considered could happen in that regard.  

37.	In all the circumstances Mr Walker moved that the appeal be upheld, the Tribunal’s judgment reversed and the case remitted for a fresh hearing before a newly constituted Tribunal.  It was, he submitted not appropriate that it go back to the same Tribunal given the unjustified finding of vexatious conduct on the respondents’ behalf.  

38.	For the claimant, Mr Hardman submitted that the appeal should be refused.  

39.	Mr Hardman referred to Mr Spence’s failures.  The Tribunal’s judgment as to whether or not strike out was proportionate was one which was open to them.  There was a persistent failure to co-operate of the sort referred to in the case of Chambers-Mills v Allied Bakeries UKEAT/0165/08 and the Tribunal was entitled to conclude that it could have no confidence in the case reaching a conclusion if the strike our order was not granted.  He also submitted that there was material from which it could be concluded that the respondents were themselves aware of the failings.  Their managing partner had been present during the hearings.  The Tribunal had not erred in law and the appeal should be refused.  

Discussion and Decision
40.	At the outset it has to be recognised that the performance of the respondent’s solicitor in the course of this case was far from impressive.  He himself recognised that.  He frankly accepted, put shortly, that he had not coped with the demands of the case and realised that he should not have accepted the respondents’ instructions.  However, it is important to identify exactly what the relevant failings were and what was their effect.  

41.	Firstly, time was wasted at the October hearing.  That, however, was dealt with at the time by the making of a wasted costs order.

42.	The next problem was that the claimant’s solicitors were pressing for agreement on the pension loss figure but Mr Spence had not responded.  He had not been ordered to do so and had not given any specific undertaking in that regard.  He did agree it prior to the January hearing.  

43.	Mr Spence failed to respond to the Tribunal’s letter of 18 December 2008 and a CMD had to be fixed.  He should have replied to the letter but in the event, little time was lost and the CMD was able to take place by telephone conference call.  I would also, at this stage, observe that the nature of this case as disclosed in the ET1, ET3 and the Questionnaire procedure was such as would certainly have merited a CMD prior to the hearing and some of the problems that emerged may well have been sorted out had that occurred.  It is also a case where, notwithstanding parties’ agreement to the contrary, it appears that there would certainly have been merit in separating out the status issue and determining it through the pre–hearing review procedure.  

44.	Then, although Mr Spence had indicated at the CMD that there were no further documents, other than the ‘Away day’ minute (which he could be expected to have lodged before then but was lodged the following day) that the respondents wished to rely on, reference was made by Dr McKinnon to other minutes and accountancy communications in the course of her evidence.  These were referred to by her as being documents which supported the respondents’ case that the claimant was partner rather than an employee.  Mr Spence did not immediately make a motion to be allowed to find and lodge the documents; it was the claimant’s barrister that raised objection at that point.  It is not at all clear why the claimant’s advisers insisted that these documents be produced; on the face of it, it would have served his interests very well if matters had been left on the basis that since they had not been lodged, any reference to them required to be ignored.  Insofar as the claimant’s concern was that the minutes should have been produced earlier because they had been informally requested, if they were important to the claimant’s case, a documents’ order could and should have been sought prior to the hearing.  No such order having been sought, the inference had to be that the claimant’s advisers had not actually regarded these documents as being of critical importance.  

45.	Mr Spence undertook, at the January hearing, to produce witness statements by 14 February and failed to do so.  They were, however, sent on 17 March.  Mr Spence also appears to have given some undertaking regarding the minutes and accountancy communications referred to but no order was sought or made in respect of them.  

46.	In the absence of any finding that Mr Spence received the orders of 28 March, consideration of the motion required to be addressed on the basis that they were not served on him/the respondents.

47.	Thus, Mr Spence could justifiably be criticised for delaying in attending to the question of whether or not pension loss could be agreed, delaying in lodging the ‘Away Day’ minute, not complying with the time scale in his undertaking regarding witness statements, delaying in producing the minutes and accountancy communication documents referred to at the January hearing and not making enquiries as to the reference to the orders in the letter of 28 April that was copied to him.  However, on the information provided by the Tribunal in its reasons the only formal requirement on him that he was aware of was compliance with his undertakings to the Tribunal regarding the witness statements (which was complied with, albeit late) and the minutes and accountancy communications.  That is not to say that good practice does not involve as much co-operation between parties’ representatives as is possible on an informal basis, insofar as it does not conflict with their duties to parties.  It is, however, important to bear in mind the distinction between good practice and strict requirements when it comes to considering a strike out motion, particularly one which is advanced under reference to Rule 18(7) (e).  

48.	As regards the minutes and accountancy communications, Mr Spence did have some documentation with him on 16 June and indicated that he should be able to locate the other documents by the following morning.  

49.	The Tribunal found that there had been a deliberate and persistent failure to comply with orders.  That was not a finding that it was entitled to make.  No orders had been served on Mr Spence.  Neither he nor the respondents could, in those circumstances, be found to have failed to comply with them.  Further, the Tribunal took account of the history and characterised it as involving deliberate and persistent failure to comply with orders.  It took account of all that occurred since the first hearing without acknowledging that the October delay was dealt with at the time by a wasted costs order.  It also relied on what is referred to as ‘failures to co-operate’ but that is quite a different matter from a failure to comply with orders.  

50.	Turning to the Tribunal’s finding of unreasonable and vexatious conduct, it was also a finding that it was not entitled to make.  In doing so, it relied again on what it regarded as failure to comply with orders which had not, as above noted, occurred.  Further, it regarded Dr McKinnon as also responsible.  Yet she was a doctor, not a lawyer, she had not been present during legal debates, she had not been present at the CMD and there is no finding that she had any awareness of what had passed in correspondence, of the orders or that Mr Spence had not complied with the undertakings given at the January hearing.  Whilst she could be taken to have been aware of the wasted costs order, that could not be relied on as furnishing her with sufficient knowledge as to the way in which Mr Spence was conducting the case.  This was, on the facts, a case in which it should have been plain that the party was entitled to distance itself from the actings of the solicitor (see: Bennet v London Borough of Southwark).  

51.	Regarding the finding that the conduct of the case was vexatious, the Tribunal makes no findings at all that could justify such a conclusion.  ‘Vexatious’ connotes the pursuit of a petty claim/response which is intended to annoy.  The inferred intention of the party is an essential element.  It is not sufficient that the other party finds the conduct to have been irritating or ‘vexing’.  There is no suggestion at all of either Mr Spence of the respondents following a petty or trivial course of action intended to annoy the claimant.  On the contrary, the picture is clearly of Mr Spence not meaning harm and simply not coping at times with the demands of the case.  

52.	Turning to the question of whether a fair trial was impossible, I note that the Tribunal answered that question in the affirmative.  It then, however, discounted that answer on the basis that it did not trust Mr Spence to produce the documents.  In doing so, it jumped too far too fast.  At that stage, he had not been subjected to a formal order of the Tribunal in respect of them.  It could have, but did not, pronounced an ‘unless’ order, giving him 24 hours to produce the documents which he had undertaken to produce.  It could have seen to it that the orders of 28 March were served on him at the hearing on 16 June and shortened the time scale for response to them.  It could have had him lodge at least those documents which he had with him that day.  

53.	More importantly, however, the Tribunal gave no consideration to the question of the materiality of the documents sought or the appropriateness of requiring their production.  The claimant had not sought a documents order prior to the start of the hearing.  The e-mail sought had already been lodged, confidentiality considerations might well arise regarding the salaried partners contracts, the period over which meeting notes were sought extended beyond the date of the claimant’s departure from the practice and it was hard to fathom what was meant by the fifth call in the documents order (Copy of the properties of’ a document).  It is difficult to see, on a reading of the list of documents, how their absence would prevent a fair trial.

54.	As to proportionality, the Tribunal essentially found that strike out was proportionate because it was not confident that the case would finish at the June hearing if the respondents were to be allowed to continue to defend their position.  That was not, however, an adequate reason for finding that strike out was proportionate.  It is evident that, infact, the hearing could not finish at the June hearing with the strike out motion being granted but more fundamentally, the Tribunal failed to consider the nature and extent of the prejudice that would be occasioned to the respondents which was going to be very substantial, particularly as regards the discrimination claim, for the reasons which I have already discussed.  

55.	Finally, given that evidence had already been put before the Tribunal on behalf of the respondents, in cross examination of the claimant, from Dr McKinnon and via the witness statements lodged, consideration required to be given to the complexities that would arise given that the response was now to be regarded as never having been lodged:  the effect of a response being struck out is that the case proceeds as though no notice of appearance had ever been served (Rule 3(3) of the 2004 rules).  On one view the respondents’ evidence would all require to be disregarded.  What if, however, Mr Spence had elicited evidence on which the claimant wished to rely or there was material in the witness statements to which he wished to refer?  Was it available to the claimant for his purposes?  If so, did it require to be examined from the point of view of the respondents’ interests as well?  Could the claimant rely on the respondents’ productions?  What if Mr Spence’s cross examination of the claimant had raised doubts about his credibility?  What about the credibility question that had been raised in the context of the claimant’s daughter giving the impression that she might have been coaching her father from the public benches?  These are but some of the difficult questions that are raised by reason of the fact that the response was struck out after the hearing had commenced.  They serve to reinforce the doubts I expressed earlier regarding the competency of granting a strike out motion at that stage.  

56.	I do wonder whether the Tribunal had a feeling that it had gone too far in striking out the response;  hence the ‘preliminary view’ expressed in its letter of  27 August to the effect that it would allow the respondents to participate in a remedies hearing although that indication of itself throws up further problems.  How could it allow the respondents to make submissions to persuade it to make that preliminary view a final one when they could not be allowed to make representations until the matter had been determined?  How could the respondents fairly make submissions on quantum when they had not been allowed to participate during the last stage of the merits hearing?  If it was fair to allow them to participate in the remedies hearing, why was it not fair to allow them to complete their participation in the merits hearing (in circumstances where determination of the merits would inevitably have a bearing on quantum)?  The course of action suggested was far from satisfactory.

57.	Overall, it is plain that the Tribunal lost patience.  It is understandable why it did.  It would certainly have been justified in adopting one or more of the courses of action suggested by Mr Walker.  It undoubtedly erred, however, in striking out the response.  

Disposal
58.	In these circumstances, I will pronounce an order upholding the appeal, the effect of which will be to reverse the judgment of the Tribunal and refuse the claimant’s motion to strike out the response.  There will then be a remit to a freshly constituted Tribunal for a rehearing of the case.  It would plainly not be appropriate for the case to be remitted to the same Tribunal.