Appeal No. UKEAT/0197/09/DA
UKEAT/0198/09/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 August 2009 

	
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MISS I GIRVAN	APPELLANT

HUMBERSIDE PROBATION TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR J FRENCH
(of Counsel)
Instructed by:
Messrs Andrew M Jackson Solicitors
Essex House  Manor Street
Hull 
HU1 1XH	
For the Respondent

	MISS C WIDDETT
(of Counsel)
Instructed by:
Humberside Probation Trust Legal Services
21 Flemingate
Beverley
North Humberside 
HU17 0NP

SUMMARY
PRACTICE AND PROCEDURE
Striking out

An Employment Judge failed to consider relevant explanations offered by a Claimant in response to a strikeout application, and wrongly rejected her application for a review. The judge did not consider less drastic coercive measures, as were suggested by the Respondent itself. Appeal allowed, Employment Tribunal judgments set aside and remitted to a different judge for hearing of Respondent’s strikeout application.  Parties to report to Employment Tribunal on ADR steps taken within 28 days.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about Employment Tribunal procedure in striking out a dismissal claim and a refusal to review that strikeout.  I will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge Keevash, on the papers at Leeds, on 17 February 2009.  The Judge struck out the Claimant’s claim.  The Claimant was at all material times prior to that order represented by experienced solicitors.  Thereafter she parted company with them only to be reunited for the purposes of today.  The Claimant then, acting on her own, applied for a review of the strikeout, and that was refused by Judge Keevash on 2 March 2009. The Claimant claims constructive unfair dismissal.  Other aspects of her claim relying on allegations of discrimination are not live.  

3.	The Claimant appeals against both of those judgments.  Underhill P, considering both of these on the sift, thought they should have a full hearing.  

4.	At the hearing before me, the Claimant has been represented by Mr Jonathan French, of Counsel, now that the Claimant has secured again representation from her original solicitors after a temporary funding difficulty, and the Respondent has the advantage to be represented by Ms Cherie Widdett.  I have also heard from Ms Montgomery, solicitor who has filled in some of the background to the correspondence for me.

Facts
5.	The Respondent is ready to contest the claim on its merits.  The hearing was originally set up for 23 February 2009 for two weeks, and so Judge Keevash’s order was made on the Tuesday prior to the two-week hearing.  It was to be a major trial.  Eighteen witnesses had been proofed for the Respondent, and the Claimant was to give evidence herself.  Detailed case management directions were given which included the exchange of witness statements by 30 January.  That was not done.  By agreement between the parties, the revised deadline was 11 February.  No statement from the Claimant had been served.

6.	The Respondent wrote following, it may be, inquiries from the Tribunal, but it is clear that on 11 February 2009, shortly after its revised deadline of noon had come and gone without the Claimant’s witness statement, Ms Montgomery for the Trust said:
“… I make an application for this matter to be struck out.  Alternatively I would request that an order is made for Ms Girvan’s draft witness statement to be faxed over immediately and that witness exchange takes place when Miss Girvan’s final statement is available.  In respect of the additional documents I would be content that this is dealt with by an addendum statement following receipt of the document.  May I suggest the following timetable [which she gave, which would enable the trial date to be preserved].”

The Respondent also sent a copy of an email or a fax which it had sent to the Claimant indicating much the same as she said to the Tribunal.

7.	The reference to the documents is to an underlying dispute between the legal representatives.  In short, the Claimant understood that there had been full disclosure of documents, but it transpired that more documents were vouchsafed and so the Claimant wanted, in a single witness statement, to deal with all the written material, and until that was given to her, she was unwilling to finalise what was already in draft.

8.	The response of the solicitors was given apparently on 10 February and is a response to a proper direction given by the Judge that the Claimant should show reasons why the claim should not be struck out.  A strikeout is permissible and it may be done on paper: Employment Tribunal Rules 18(6) and (7) .  The Claimant expressly accepts that this is a proper procedure to adopt.  

9.	The Judge’s reasons for striking out the claim have been described as terse and are criticised for that.  They are 

“1. The Tribunal wrote to the claimant on 11th February 2009 in connection with the claim. 
2. The Tribunal gave notice that it had power to strike out the claim because the claimant had not complied with a case management Order.  The Tribunal gave opportunity to give reasons by 4pm on 13 February 2009, in writing, why such an Order should not be made. 
3. The claimant has failed to give an acceptable reason why such an Order should not be made.  The Tribunal therefore orders the claim to be struck out.” 

10.	That strikeout had followed material which had been sent on the Claimant’s behalf which included the correspondence between the solicitors for the parties.  That correspondence indicates the nature of the dispute and the reasons why the Claimant was not prepared to serve a finalised statement. That was before the Judge when he made his order on 17 February and yet there is no reference at all to any of the contents.  It must be borne in mind that the material consisted of two pages written by the Claimant’s solicitor to the Respondent’s solicitor which was given to the Judge by way of a response to the notice that the claim was to be considered for strikeout.  This document indicates that there was a valid dispute between the parties about the nature of the documents.  It indicates also that if the Respondent were to move upon its strikeout suggestion, there would be further consequences.  The last line from her solicitor says this:

“Please just forward the new document, we can then allow Ms Girvan to consider them and prepare to exchange.  We made this clear on Monday and Tuesday.”

11.	The Judge simply said that the reason was not acceptable.  Nor did the Judge consider expressly any lesser approach. It must be noted the Respondent itself suggested a less draconic measure as, if I may say, sensibly suggested in Ms Montgomery’s letter, such that the Respondent could deal with the witness statement and the trial fixture be kept.  The Judge nevertheless made the order.  

12.	The Claimant was, by the time of the order, representing herself, and she then applied to the Judge for review. She set out why it was unacceptable to her to have to exchange witness statements when three issues were outstanding, and they are set out in detail.  There was no further material, it appears, from the Respondent and, on 2 March 2009, the Judge then refused the review:

“Your application for a review has been refused because the Judge considers that there are no grounds for the decision to be reviewed under Rule 34(3) and/or there is no reasonable prospect of the decision being varied or revoked.
Your letter has not identified any ground for a review under Rule 34 and in any event your former solicitors failed to provide any or any satisfactory explanation for your failure to comply with the order requiring exchange of witness.”

13.	Again, the Judge does not deal with why he considers that the explanation given by the Claimant in person was not satisfactory, and it goes without saying that there is no cross‑referencing to the earlier material.

The submissions
14.	The powers of an Employment Judge to strike out are not in dispute.  The formality of an application to be made in proceedings by a legally represented party under rule 11(4) is not an issue which is in dispute today, nor is, as I have indicated, the dealing with matters on paper.  Two contentions are argued on behalf of the Claimant.  The first is that the reasons do not meet the requirements for full reasons to be given of any judicial decision.  See Meek v City of Birmingham District Council [1987] IRLR 250 CA and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 2003.  The second is that the Judge did not consider the matters which are required to be considered by analogy with CPR 3.9, which is in the following terms:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rules, practice direction or court order the court will consider all the circumstances including - (a) the interests of the administration of justice; (b) whether the application for relief has been made promptly; (c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure; (e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol; (t) whether the failure to comply was caused by the party or his legal representative; (g) whether the trial date or the likely trial date can still be met if relief is granted; (h) the effect which the failure to comply had on each party; and (i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence."

15.	That crosses over into employment protection legislation by reason of the judgment of HHJ Peter Clark in Neary v The Governing Body of St Alban’s Girls School, UKEAT/0280/08, which the parties accept is relevant here.  It is also important to note that CPR 3.9(2) requires evidence to be given.

16.	On behalf of the Respondent, it is contended that the Judge gave robust albeit terse reasons and, on the basis that no evidence was put before him, he was not obliged to investigate further in order to come to a conclusion as to a strikeout.  The Claimant had not responded to the Employment Tribunal’s order and the Judge implicitly gave an unless order to the Claimant indicating that a strikeout would be considered: 

“The Judge is considering striking out the claim because you have not complied with the order direction of the tribunal.  If you wish to object to this proposal, you should give your reasons in writing [on a certain date].”

17.	Secondly, it is contended that if the Judge were wrong on the first occasion, then he was right on the second in refusing the review, for no category corresponding to the grounds for a review set out in rule 34.3 had been given by the Claimant. The Judge’s discretion on review could not be faulted.

Discussion and conclusions
18.	I introduced both Counsel today to the judgment of the Court of Appeal in Abegaze v Shrewsbury College of Arts and Technology [2009] EWCA Civ 96.  Elias LJ, giving the principal judgment, reversed judgments of an employment judge and of myself, with members, and decided that it was wrong to have struck out the successful claimant Dr Abegaze’s application for a remedy.  The conclusion was that a less draconic measure should have been adopted, the court there considering the then leading authority of Blockbuster Entertainment Limited v James [2006] EWCA Civ 684.  I indicated to both Counsel that this would seem to be an important authority indicating that, in practice, a judge is required to consider a less draconic measure, such as an unless order, before a strikeout.  They were discrimination claims. Ms Widdett drew no distinction between those and a constructive unfair dismissal claim, and so I will take it that the principles are the same for the purposes of this case.

19.	This case arose because a strikeout application was made by the Respondent.  It may be that the Judge was also considering making it himself but for the purpose of today’s hearing it does not matter.  I will operate on the basis that the Judge was responding to the clear application made by the Trust that the claim be struck out.  I have every sympathy with the Respondent, and all those responding to this claim, for plans were made, obviously at great public expense, to bring back a number of people who have subsequently been made redundant in order to deal with the claim. Matters were to be collected on 11 February 2009 so that a conference with Counsel could be effective ahead of the two-week trial.

20.	In sequence, it looks to me, therefore, as though the Judge has responded to that and given the Claimant an opportunity to say why the claim should not be struck out.  The Claimant’s solicitors took that opportunity.  In my judgment, the Judge was wrong in failing to take account of the dispute over documents.  It may have been a good reason.  We do not know the Judge’s attitude in detail to what was put before him by the solicitors, but a reasoned argument was put and it has not been dealt with.  Similarly, the Respondent put no material before the Judge justifying the application.  It is a bald assertion that there should be a strikeout.

21.	The Judge simply said that the Claimant had failed to give an acceptable reason.  In my judgment, that does not comply with the approach to be taken following Abegaze. Although at the time the Judge made it, that judgment had not yet been made, it is the law.

22.	In Ms Montgomery’s own application, she suggests an alternative measure, as I have depicted it, quite sensibly, yet the Judge did not consider that.  In those circumstances, the Judge was required to consider what Sedley LJ holds to be a less draconic measure, and Elias LJ describes it as an “unless order”.  The alternative was plainly suggested by the Respondent.  It seems to me therefore he fell into error.

23.	As to the review, it is agreed by both counsel before me that a holistic approach is to be taken when a judge affirms, on a refusal to review, his previous decision.  I agree that it is not necessary for a claimant, particularly where acting in person, to put her application for review into one of the subparagraphs in rule 34(3).  It is actually the same material, the same ground, which has caused the Judge to issue the strikeout and not to deal with them in detail.  It seems to me, therefore, that both the review judgment and the original judgment can be taken together.  The Judge repeated his approach, which I have held to be an error, in his review judgment and should at least have allowed there to be a review.  I will therefore set aside both judgments.

Disposal
24.	I canvassed with Counsel the approach which could be taken.  I note in Abegaze that the court did not itself take the step which could be taken by the Judge.  The Respondent contends that there is a good deal of material it would wish to place before a judge in considering a strikeout, and the Claimant has not been tested on the material she has put forward.  I do not have the advantage of having a reasoned judgment of the Judge below, it would be wrong for me to make decisions in the light of such material as I have and so I will remit the matter to the Tribunal.  It will properly be considered at a hearing of the Respondent’s application for a strikeout, and directions as to the hearing can be given by a judge.  Both Counsel before me acknowledge that this should not go back to Judge Keevash but it should be left to the Regional Employment Judge to appoint a different judge to hear the application.

25.	A similar route might be considered by the parties to this.  Since Ms Montgomery’s most sensible suggestion appears still to be live in her letter of application, the Claimant should give very careful consideration to that, and it may well be that if she were now to serve her witness statement the Respondent’s attitude to the strikeout might change.  

26.	I am delighted to hear that there has been some attempted ADR in this case through ACAS and through solicitor mediation.  I would expect that from a Respondent such as this, given the nature of its statutory duties and of the Claimant being an officer.  It is disappointing to hear that the parties could not reach agreement, given that the Claimant’s original case is now considerably reduced.  I will now direct that a further attempt be made through ACAS to try and resolve the differences, and the parties should within 28 days report to the Regional Employment Judge in Leeds on the steps taken but not the substance.