Abegaze v Shrewsbury College of Arts & Technology
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ELIAS,LORD JUSTICE RIMER,LORD JUSTICE WARD |
| Judgment Date | 20 February 2009 |
| Neutral Citation | [2009] EWCA Civ 96 |
| Docket Number | Case No: A2/2008/0661/PTA+A |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2009 |
[2009] EWCA Civ 96
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE McMULLEN QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Rimer and
Lord Justice Elias
Case No: A2/2008/0661/PTA+A
UKEAT/0176/07/ZT
MR MICHAEL DUGGAN (instructed by J R JONES) for the Appellant
MR ANDREW McGRATH (instructed by SHROPSHIRE COUNTY COUNCIL LEGAL DIVISION) for the Respondent
Hearing date: 9TH FEBRUARY 2009
This is a curious and unusual case. The claimant (as I shall continue to call him, although he is the appellant before us) succeeded in his claim that he had been discriminated on racial grounds by the respondent. The Employment Tribunal found by a majority that the respondent Council had failed to appoint him as a lecturer in Electrical/Electronic Engineering and that his race had been a factor in that decision. That decision was given on 20 November 2000 and it was not appealed. Some six years later, on the 15 November 2006, the claim —which by then of course related only to remedy —was dismissed on the grounds that the claimant had not actively pursued it, and because the employment judge considered that it was no longer possible to have a fair hearing of the proceedings. An appeal to the Employment Appeal Tribunal (His Honour Judge McMullen QC presiding) was unsuccessful. The claimant now appeals that decision.
The background .
A detailed analysis of the history of this litigation would be very lengthy. I will concentrate on the essential features. Once liability had been determined, a remedies hearing was fixed. However, the claimant was not well and the hearing could not take place. On 13 March 2003 the Tribunal wrote to the parties. The employment judge indicated that it was not in the interests of either party that the remedies hearing should be delayed further. He listed the case to be heard not before 1 July 2003. The purpose of that was to give the claimant at least three calendar months in which he could recover his health and prepare for the hearing.
The claimant had obtained a number of medical reports, and also a report from an employment expert concerning the prospects of his obtaining fresh employment. The respondent, not unnaturally, wished to have the opportunity to have their consultant examine the claimant. He, however, objected to this. Ostensibly he indicated that he had no objection to being examined, but in practice, he continually placed difficulties in the way and even suggested that by wanting to have him examined, the respondent was perverting the course of justice.
A remedies hearing was convened for 13 October but it had to be adjourned. There was little option other than to do that because at least one of the reports was only produced to the respondent on the day of the hearing itself, and furthermore the claimant had not by then been examined by the respondent's doctors. It was recorded in the decision of 13 October that the claimant had confirmed his willingness to attend a medical appointment arranged by the respondent anywhere in the UK.
The respondent sought to arrange a meeting with a consultant psychiatrist, but the claimant failed to co-operate. Indeed on 23 October 2003 he applied to strike out the respondent on the grounds that their conduct in relation to requiring him to be examined was scandalous. The proposed medical appointment with the psychiatrist had to be cancelled.
The employment judge considered the application by the claimant to strike out the respondents. Hardly surprisingly, he rejected that application on 3 December 2004. Instead, he stated that since the claimant had declined to co-operate with the respondent, he had decided to stay all further matters in the claim. He subsequently issued a formal order to that effect.
The claimant sought to appeal the refusal to strike out to the Employment Appeal Tribunal, but the appeal was unsuccessful. Meanwhile he continued to represent that he was willing to co-operate in an examination by the respondent's doctor, although his actions belied his words.
On 6 May 2005 the respondent wrote to the claimant. They noted that the Court of Appeal had by then refused him leave to appeal against the Employment Appeal Tribunal's rejection of his appeal relating to his strike out application. They asked the claimant to let them know when he would be prepared to attend an appointment with their psychiatrist. Again, he did not co-operate.
On the 17 August 2005 the respondents requested a case management review. On 24 August the employment judge wrote to the parties indicating that he had decided to issue a Notice to Show Cause why the case should not be struck out.
At this stage the claimant obtained the assistance of the Commission for Racial Equality. They sent a detailed submission on his behalf on 29 October 2005, in which they noted that:
“The claimant now feels capable of co-operating with all parties and wishes to proceed with the remedies hearing of this matter as quickly as possible.”
They observed that it was entirely fair that the respondent should be able to examine him and that they would not have a fair hearing without being afforded that opportunity. The respondent, notwithstanding the relatively positive tone of that letter, applied to the Tribunal on the 25 November 2005 asking the Tribunal to consider striking out the claimant's claim.
Thereafter there was some correspondence between the Tribunal, the respondent and the Commission for Racial Equality who were still at that stage acting for the claimant. Subsequently, however, the Commission ceased to act for him because they found that they were professionally embarrassed.
After various delays, a pre-hearing review to consider the application was fixed for 5/6 September 2006. That was postponed at the request of the respondent but a fresh Notice of Hearing was then fixed for 2/3 November. The claimant sought to have this hearing postponed by making numerous applications, but the employment judge refused to do so. The employment judge indicated that he might be prepared to do so if the doctor who had provided a note saying that the claimant could not attend the hearing would answer certain particular questions and would be willing to have his answers communicated to the respondent's lawyers. No such undertaking was given and the hearing went ahead on the due date.
The relevant law .
The respondent was seeking to have the claim dismissed under three sub-paragraphs of Rule 18(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The three sub-paragraphs are as follows:
“… 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 the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
(d) striking out a claim which has not been actively pursued;
..(f) striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair hearing in those proceedings.”
The relevant legal principles applicable to this case are not in dispute. In the case of a strike out application brought under paragraph (c), it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed.
These principles can be derived from Blockbuster Entertainments Limited v James [2006] IRLR 630 (CA); Arrow Nominees v Blackledge [2001] BCC 591 (CA); and Bolch v Chipman [2004] IRLR 140 (EAT).
The strike out for failing actively to pursue the case raises some different considerations. In Evans Executors v Metropolitan Police Authority [1993] ICR 151 the Court of Appeal held that the general approach should be akin to that which the House of Lords in Birkett v James [1978] AC 297 considered was appropriate when looking at the question whether at common law a case should be struck out for want of prosecution. (The position in civil actions has altered since the advent of the Civil Procedure Rules). That requires that there should either be intentional or contumelious default, or inordinate and inexcusable delay such that there is a substantial risk that it would not possible to have a fair trial of the issues, or there would be substantial prejudice to the respondents
The judge's approach .
The judge first considered whether the case should be struck out on the grounds that the conduct had been scandalous or unreasonable. In this connection he considered allegedly scandalous conduct with respect to one of the respondent's witnesses, namely a Mr Alan Moseley.
There were two incidents with respect to Mr Moseley which, it was alleged, had caused him to refuse to come and give evidence on behalf of the respondent. He was no longer employed by them by the date the strike out was considered. The first concerned communications between the claimant and the Further Education/Learning Skills Council, and the claimant and the Secretary of State for Education, in which he had described the...
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