FAIR EMPLOYMENT TRIBUNAL 

CASE REFS:    78/11 FET
1446/11
79/11 FET
1447/11
80/11 FET
1449/11
81/11 FET
1450/11

CLAIMANTS:	1.	Przemysiaw Mocarski
	2.	Mieczylaw Mocarski
	3.	Mariusz Mocarski
	4.	Krzysztof Mocarski

RESPONDENTS:	1.	Victor Foster Poultry Services Ltd
	2.	Dwayne Dalzell

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimants’ strike-out application is refused, that the respondents should not therefore be debarred from defending the claims, and that an award of costs be made against the respondents in the sum of £1,200.00.

Constitution of Tribunal:

Chairman  (sitting alone):	Mr S A Crothers

Appearances:

The claimants were represented by Mr P Ferrity, Barrister-at-Law, instructed by The Equality Commission for Northern Ireland.

The respondents were represented by Mr R Fee, Barrister-at-Law, instructed by J J Haughey Solicitors.

ISSUES

1.	The issues before the Tribunal were:-

	(1)	To determine whether the respondent should be debarred from defending the claims for failure to comply with the Tribunal’s Order in relation to interlocutory matters at the Case Management Discussion on 19 September 2011.

	(2)	Whether the claimants should be awarded costs in respect of both the Case Management Discussion held on 4 January 2011, and the Pre-hearing Review.

2.	RELEVANT FACTS

	(i)	At a Case Management Discussion held before the Vice-President of the Tribunals on 19 September 2011, it was directed that:-

			“All notices for additional information and discovery and inspection will be served and replied to before 5.00 pm on 30 October 2011.”

	(ii)	A further Case Management Discussion became necessary on 4 January 2012 (“the January CMD”).  It is recorded in the Record of Proceedings that the claimant’s Notices for Additional Information and Discovery were served on the respondents on 25 August 2011 and that no response to the notices was made until some documentation and information was received in the Equality Commission offices on 3 January 2012.  Counsel for the claimants submitted at the January CMD that several key replies and documents were missing with no explanation being given for their absence.  Due, apparently, to an administrative lapse, the respondents’ Solicitors were not afforded teleconference facilities as they had requested by telephone before the January CMD.  They did not, however, put their request in writing.  Mr Fee conceded that even with representation at the January CMD, the outcome would have been the same, although the issuing of an Unless Order would have been opposed.

	(iii)	The substantive case had been listed from 9 to 20 January 2012 but was relisted at the January CMD from 16 to 27 January 2012 and a Pre-hearing Review was ordered to take place at 10.00 am on 16 January 2012, immediately preceding the substantive hearing.  Mr Ferrity had sought costs at the January CMD but these were reserved to the substantive hearing to enable the claimant’s representative to put the respondent’s representative on written notice of the application for costs and to give written notice of the amount of costs sought.

	(iv)	An Unless Order was issued by the Tribunal on 5 January 2012.  It reads as follows:-

			“TAKE NOTICE IT IS ORDERED THAT UNLESS BY 11 JANUARY 2012 you comply with the Order for Additional Information and Discovery and Inspection made by the tribunal on 4 January 2012, as set out in the Record of Proceedings dated 5 January 2012, this tribunal shall make a decision that your claim will be struck out pursuant to Rule 12(2) of the Fair Employment Tribunal Rules of Procedure 2005, contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (as amended), for failure to comply with the said Order, without further consideration of the proceedings or the need to give any further notice or to hold any further hearing.

			A copy of the Record of Proceedings of the hearing on 4 January 2012, dated 5 January 2012, which included the said Order for Additional Information and Discovery and Inspection is attached hereto.”

	(v)	It was not disputed by the respondents that approximately one third of the outstanding documentation was faxed to the Equality Commission before 5.00 pm on 11 January 2012.  Further documentation was faxed later on that day.

	(vi)	At the Pre-hearing Review, wages documentation was produced by the respondents relating to the second-named respondent.  The tribunal revisited the Notice for Additional Information and Discovery appended to the Unless Order, to establish exactly what was outstanding.  It appeared that there was nothing further outstanding in relation to the Additional Information requests, and the respondents’ Counsel, Mr Fee, confirmed that there was no further discoverable documentation outstanding, according to his instructions.

	(vii)	The tribunal was shown an exchange of correspondence between the Equality Commission and the respondents’ Solicitors.  In a letter to the Equality Commission dated 13 January 2012, the respondents’ Solicitors state:-

			“We refer to your letter of yesterday’s date.  We have forwarded to you full Discovery of all documents in our clients’ possession.  No further documents will be presented at the hearing of this matter.

			Yours faithfully

			Peter P Haughey LL.B.”

(viii)	There was no sustainable reason presented to the tribunal for the respondents’ failure to produce the wages documentation at a much earlier stage.

(ix)	The substantive hearing was postponed by consent as both sides indicated their preference for a written decision following the 
pre-hearing review and appropriate time to consider that decision.

3.	THE LAW

	(1)	The tribunal considered its overriding objective contained in Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Regulations”) together with Rules 12 and 17 of the Fair Employment Tribunal Rules of Procedure 2005, as amended (“the Rules”).  

		Regulation 3 of the Regulations states as follows:-

“(1)	The overriding objective of these Regulations and the rules in Schedules 1, 2 and 3 is to enable tribunals and chairmen to deal with cases justly.

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

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

	(b)	dealing with the case in ways which are proportionate to the complexity or importance of the issues;

	(c)	ensuring that it is dealt with expediously and fairly; and

	(d)	saving expense.

(3)	A tribunal or Chairman shall seek to give effect to the overriding objective when it or he  -

	(a)	exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2 and 3; or

	(b)	interprets these Regulations or any rule in Schedules 1, 2 and 3.

(4)	The parties shall assist the tribunal or the Chairman to further the overriding objective.”

	(2)	The tribunal was referred to the Industrial Tribunals Case of Dr Rail Lyapin  v  1.  Denise Greatorex 2.  University of Ulster (Case Ref:  539/11), by the claimant’s counsel.  It also considered the case of Weir Valves and Controls (UK) Ltd  v  Armitage (2004) ICR 371, EAT, (“Weir”) referred to by the respondents’ counsel together with an extract from Harvey on Industrial Relations and Employment Law Division P I Practice and Procedure at paragraph 393 to 396.01 (“Harvey”).  At paragraph 394 of Harvey it is stated as follows:-

“[394]

The guiding consideration, when deciding whether to strike out for non-compliance with an order, is the overriding objective (Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371, EAT). This requires the judge or tribunal to consider all the circumstances, including '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 possible' (ibid at para 17, per Judge Richardson). Whether a fair hearing is still possible is to be judged objectively by the judge or tribunal, and the feeling of unfairness of one or other of the parties is not in itself a decisive factor. The EAT made it clear in Armitage that striking out should not always be the result of disobedience to an order (para 17), and that tribunals should consider whether a lesser sanction might be appropriate in the circumstances (see para 33). On the facts of the case, the EAT held that a tribunal had been wrong to strike out the whole of the employer's response for failure to comply with an order for simultaneous exchange of witness statements. Although the tribunal had concluded that a fair hearing was not possible because the employers had had the opportunity to tailor their witness statements in the light of the witness statements served by the claimant by the due date, the EAT held that (a) there had been no investigation by the tribunal, as there should have been, as to whether any unfair advantage had been taken by the employers, and (b) a perusal of the witness statements would have shown that no such advantage had in fact been taken. Even if there had been some unfairness, it held that the tribunal had power under the rules to exclude all or part of a witness statement 'if it was proportionate to do so having regard to the default and the overriding objective'.

[395] …

In earlier cases it had been held that, as the purpose of the rule is to achieve compliance with the order, the basic question to be asked is whether there is a real or substantial or serious risk that, as a result of the default, a fair trial will no longer be possible (Landauer Ltd v Comins & Co (1991) Times, 7 August, CA; National Grid Co Ltd v Virdee [1992] IRLR 555, EAT). Although punishment is not the intention of the rule, there may be cases of contumacious conduct, such as the deliberate suppression of a document, which might justify a striking out, even if a fair trial was still possible (Landauer, Virdee; see also Husband's of Marchwood Ltd v Drummond Walker Developments Ltd [1975] 2 All ER 30, [1975] 1 WLR 603, CA; Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256). Applying these principles, the EAT in Virdee held that it was inappropriate to strike out part of the respondent's response where the non-compliance with an order for disclosure (saying that certain documents did not exist, when in fact they did exist) was not deliberate but careless, where the error was promptly rectified, and there was no question of a fair trial being impossible…..

[396.01]

On the other hand, the striking out of a response, whether or not as the result of an unless order, is not susceptible of a review under r 34 as it does not give rise to a final determination of the proceedings, and is thus not a judgment as defined (North Tyneside Primary Care Trust v Aynsley (EAT/489/08, 8 May 2009). In such circumstances, however, the EAT held that it is open to the respondent to apply to revoke or vary the order under r 10(2)(n). The Aynsley case concerned the automatic strike-out of a response following non-compliance with an unless order relating to the disclosure of documents, Underhill J drew attention to the fact that the rules make no provision for the consequences of the striking out of a response. He rejected the contention that the effect of it was to determine liability in favour of the claimant; that issue remained to be determined regardless of the strike-out. Adopting a purposive construction of the rules, he considered that the legislative intention must have been that a respondent whose response has been struck out 'is liable to have a default judgment issued under r 8, just as if he had failed to present a response in the first place (or his response had not been accepted)', otherwise 'the sanction of a strike-out would be empty' (para 27). If a default judgment were issued in such circumstances, the respondent would be able to apply for a review under r 33. Although Underhill J stated that, in all cases where relief from the effect of an unless order was sought, the provisions of CPR r 3.9 must be taken into account, this must now be considered to be incorrect in the light of the decision of the Court of Appeal in Governing Body of St Albans Girls' School v Neary [2009] EWCA Civ 1190, [2010] IRLR 124 (see para [1142] below).”

	(3)	In addition, the tribunal referred the parties to the EAT decision in Eclipse (UK) Ltd  v  Cornwall and Others (EAT 962/96) (“Eclipse”), where the Employment Appeal Tribunal took the view that striking out the whole of the response could not be justified where the Order for disclosure related only to some of the triable issues and went on to state that the Chairman of the Employment Tribunal had not appeared to consider whether there was some way in which he could have enforced compliance before resorting to striking out the response.  It also held that since the object of the power contained in the relevant rule is to ensure compliance with Orders for directions, the Chairman was wrong to make an Order for strike-out before giving the respondent a final chance to either comply with the Order or, by way of affidavit, attempt to show that it had complied with the Order.

4.	Submissions

	(i)	The claimants’ counsel submitted, in relation to outstanding discovery, that the respondents had adopted a cavalier attitude and that he could not be sure that the request for discovery had been fully complied with, notwithstanding the respondents stated position that there was no further discoverable documentation.  He referred to an exchange of correspondence between the Equality Commission and J J Haughey Solicitors, and in particular the correspondence dated 13 January 2012 from the respondents’ Solicitors stating that they had forwarded full discovery of all documents in their clients’ possession and that no further documents would be presented at the hearing of the matter.  He also submitted that the wages documentation received on the morning of the Pre-hearing Review had been deliberately suppressed and that the top left-hand corner of the documentation showed a date of 4 January 2010.  He referred to correspondence from Noel Conn and Company Accountants to the respondents’ Solicitors dated 11 January 2012 which referred to a number of areas but not the wages information produced on 16 January 2012 during the Pre-hearing Review.

	(ii)	Counsel further submitted that the tribunal’s overriding objective had not been met in terms of the parties being on an equal footing (in that the case had to be rescheduled), in relation to dealing with the case in ways which are proportionate to the complexity or importance of the issues, and in relation to expedition and saving expense.  He submitted that, in the event of the respondents being debarred from defending the claims for failure to comply with the tribunal’s order, the claimants would still have to prove their cases, and, in this respect, he referred the Tribunal to paragraph 396.01 of Harvey (supra).  Counsel also referred to the claimants’ claim forms which referred specifically to the second respondent and the question of how his wages and theirs were computed.  Referring to the Eclipse case, he submitted that the overriding objective would not have been relevant at the time at which it was heard.  Counsel also submitted that a fair trial was not possible in light of the way in which discovery had been approached by the Respondent together with the claimants’ inability to proceed with the substantive hearing without examination of the wages documentation and further instructions being obtained from them.

	(iii)	The respondents’ counsel accepted that the position was unsatisfactory and, that although the respondents were not represented at the Case Management Discussion on 4 January 2012, the outcome would likely have been the same.  He submitted that the way in which the employment litigation had been conducted by the respondents was not appropriate, and that they should have addressed the outstanding issues at an earlier stage but that everything had now been provided and that there was no further discoverable documentation available.  He contended, based particularly on the Weir case, that a fair trial was still possible.  He submitted that the claimants had made claims under a number of headings and the issue of discrimination was being absolutely denied by the respondents.  He further submitted that the respondents’ case was that the claimants were paid the same as the second respondent but then qualified this by stating that the second respondent’s earnings were not “greatly” more than what the claimants had been paid.

	(iv)	Counsel also submitted that should the application for a strike out be granted, it would result in unfairness and prejudice to the respondents which would be significantly greater than any default for which they had been responsible.  He maintained that the reality of the application being successful would be that the claimants would be given a free run and would be able to give their evidence unchallenged.  He contended, should the respondents be given an opportunity of defending the claims, that the claimants’ evidence would be challenged under cross-examination.  Furthermore, as regards the alleged contumelious breach by the respondents, counsel submitted that the wages documentation assisted the respondents’ case and that it was not their intention to suppress the documentation deliberately.  He submitted that the wages documentation had been provided by the accountant to his instructing Solicitors who, at the time of sending the correspondence of 13 January 2012, had understood that all discoverable documentation had been provided.

	(v)	The tribunal also considered brief submissions from both Counsel in relation to costs.

5.	CONCLUSIONS

	Having carefully considered the findings of fact together with the submissions by both parties’ representatives, the relevant law, and the tribunal’s overriding objective, the tribunal concludes as follows:

	(1)	There has been disruption to the proceedings and unfairness to the claimants resulting from the need to postpone the substantive hearing.  However the tribunal is satisfied that any prejudice caused to the claimants by the circumstances which have arisen is outweighed by the prejudice to the respondents in not being able to defend the cases, including the allegations of unlawful discrimination, which are absolutely denied by the respondents.  Although the Unless Order is pre-emptory in nature and the manner in which the respondents have chosen to conduct the litigation is unreasonable, the tribunal is not persuaded that a fair trial of the issues is no longer possible, and therefore refuses the strike-out application.  The respondents are not therefore debarred from defending the claimants’ claims.

	(2)	The tribunal is however satisfied that it is appropriate to award costs of £350.00  +  VAT  (£70.00) to the claimants for counsel’s fees in respect of the January CMD and £650.00  + VAT (£130.00), in respect of the 
Pre-Hearing Review (total £1,200.00), by virtue of Rule 35 of the Rules.

Chairman:

Date and place of hearing:       16 January 2012, Belfast.  

Date decision recorded in register and issued to parties: