THE INDUSTRIAL TRIBUNALS

CASE REF:  58/08

CLAIMANT:		Sarah Galloway	

RESPONDENT:	Boxpak Ltd	

DECISION ON A PRE-HEARING REVIEW
The tribunal refuses the respondent’s application to strike out the claimant’s claim for failure to comply with an Order of the tribunal.

Constitution of Tribunal:
Chairman (sitting alone):		Mr B Greene
Appearances:

The claimant was represented by Mr B McKee, of counsel, instructed by Tony Bergin Solicitor.
The respondent is represented by BPIF Legal Services, Coventry, England.  Neither the respondent nor its representative were in attendance.

Sources of Evidence
1.	The parties did not induce any oral evidence.  The tribunal had regard to the pleadings in this matter and the submissions of the parties.
Claim and defence
2.	The claimant is claiming unfair dismissal, discriminatory dismissal contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 and a claim for breach of contract (in respect of alleged contractual redundancy entitlements).  The respondent denies the claimant’s claims.
3.	A Case Management Discussion was held on 15 May 2008.  At the Case Management Discussion the issues were agreed and the following timetable was established:-
(1)	the claimant’s witness statements were to be provided by 3 June 2008;
(2)	the respondent’s witness statements were to be provided by 30 June 2008;
(3)	the claimant’s supplementary witness statement was to be provided by 21 July 2008;
(4)	a schedule of loss was to be provided by 3 June 2008;
(5)	an agreed bundle was to be sent to the Office of Tribunals by 25 September 2008; and
(6)	the matter is scheduled to be heard between 15 and 17 October 2008.

The issues
4.	The matter was listed to deal with the following issue:-
	Whether the claimant’s claim should be struck out for failure to comply with Orders of the tribunal.
5.	By fax, of 21 July 2008, the respondent’s representative advised the tribunal that neither the respondent nor the representative would be in attendance at the pre-hearing review and the respondent wished to rely on written submissions which were enclosed with supporting documentation.
Findings of fact
6.	The following matters appeared from the record or were not in dispute:-
(1)	On 5 June 2008 the respondent applied to the Office of the Tribunals to have the claimant’s claim struck out for want of prosecution/failure to comply with an Order of the tribunal because the claimant had not provided a schedule of loss and a witness statement by 3 June 2008 as directed at the Case Management Discussion on 15 May 2008.
(2)	A pre-hearing review was arranged for 28 July 2008 to deal with the issue, “whether the claimant’s claim should be struck out for failure to comply with Orders of the Tribunal”.
(3)	By letter of 20 June 2008 the claimant’s solicitor submitted to the Office of the Tribunals the witness statement, a schedule of loss and an index to a bundle of documents.  This correspondence was copied to the respondent’s representative by letter of 23 June 2008.
(4)	By fax of 24 June 2008 the respondent’s representative wrote to the Office of the Tribunals indicating that the claimant’s witness statement did not arrive until 23 June 2008, three weeks after the time ordered at the Case Management Discussion.  The respondent’s representative repeated her assertion that the claimant’s claim should be struck out for failing to comply with the Orders of the tribunal.
(5)	The Office of the Tribunals wrote to the respondent’s representative by letter of 26 June 2008.  In that letter the respondent’s representative was asked if she still wished to proceed with a strike out pre-hearing review in light of the reported decisions of the Employment Appeal Tribunal and the Court of Appeal on the issue of when it is appropriate to make a strike out order and also having regard to the overriding objective.
(6)	The respondent’s representative replied to the Office of the Tribunals by fax of 3 July in which she reiterated her wish to proceed with the application to have the claimant’s claim struck out by reason of the claimant not having complied with the Orders of the tribunal at the Case Management Discussion on 15 May 2008.
(7)	By fax of 21 July 2008 the respondent’s representative wrote to the Office of the Tribunals indicating that neither the respondent nor the representative would be in attendance at the application to strike out brought by the respondent.  However the respondent’s representative enclosed the submission with the points that she wished to make in relation to that matter.
(8)	In the submission the respondent’s representative sets out a history of the claimant not having responded to correspondence from the respondent’s representative in relation to requests for the claimant’s list of documents, schedule of loss and replies to a Notice for Additional Information.
(9)	Specifically the respondent relied on the claimant’s failure to adhere to the timetable ordered at the Case Management Discussion on 15 May 2008 ie that the claimant would serve the witness statements by 3 June 2008.  The witness statements in fact were not served on the respondent until 23 June 2008.
(10)	The respondent’s representative also indicated that she had sought documents from the claimant’s list of documents which she said had not been provided.  She also mentioned that no details of mitigation had been provided by the claimant.  She claimed that there was prejudice to the respondent as the case was now over three years old.
(11)	The respondent relies on Regulations 13 and 18(7) Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 in support of its claim.  The submission also made reference to two decisions, a Court of Appeal decision of Ezsias v the North Glamorgan NHS Trust [2007] IRLR 603 and also a decision of the EAT in Essombe v Nandos Chickenland Ltd.  Citations were not provided for either of these claims and the tribunal has been unable to obtain a copy of the Essombe decision of the EAT.
(12)	Mr McKee made the following submissions to the tribunal:-
(a)	The claimant’s witness statement was served on 23 June 2008.  Mr McKee explained that the wrong date probably arose from his confusion of the dates for the witness statement by reason of him having done a couple of Case Management Discussions on the day on which the dates were agreed.
(b)	The claimant’s supplementary witness statement has been served.
(c)	All documents forming part of the claimant’s list of documents upon which the claimant intends to rely have been served on the respondent’s representative except for a P60 and up-to-date payslips which were provided by the claimant to her solicitor on 25 July 2008 and they will be forwarded to the respondent’s representative today.
(d)	The documents referred to by the respondent’s representative as not having been in the list of documents are in fact in the list of documents.
(e)	Everything that requires to be done has been done and the case is ready for hearing as of now, save for the agreed bundle.
(f)	There is no reason why the dates already scheduled for the hearing cannot proceed.
The law
7.	Where a party does not comply with an Order made by the tribunal the tribunal may make an Order in respect of costs or preparation time under Rules 38 to 47, or may strike out the claim in whole or in part (Regulation 13(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
8.	At a pre-hearing review a tribunal may strike out a claim which has not been actively pursued or strike out a claim for non-compliance with an Order or practice direction or strike out a claim where the tribunal considers that it is no longer possible to have a fair hearing (Regulation 18(7) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
9.	Striking out a claim is appropriate where there has been intentional and contumelious default by the claimant.  This may arise where there has been a failure to comply with a peremptory order of the tribunal or where there has been conduct amounting to an abuse of the process of the tribunal (Harvey on Industrial Relations and Employment Law T[657]).
10.	Striking out a claim is appropriate where there has been inordinate and inexcusable delay on the part of the claimant or his lawyers and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or the delay is likely to cause or to have caused serious prejudice to the defendants (Harvey on Industrial Relations and Employment Law T[658]).
Application of the law and findings of facts to the issues
11.	It is clear from the authorities that the power to strike out a claim should be used sparingly. 
12.	In the instant claim everything that is required to be done in order that this matter be ready for hearing on the agreed dates has been done save the agreed bundle which is not required to be lodged until 25 September 2008.
13.	Whilst it is true that this claim is of some vintage, being over three years old, the tribunal was informed by Mr McKee and it accepts his statement that the delay has not been by reason of any fault on the part of the parties but rather has arisen from procedural issues and a change of the law in the course of the three years.
14.	The respondent’s claim then reduces to two particular matters:-
(a)	that the claimant failed to obey the Orders and directions of the tribunal at the Case Management Discussion on 15 May 2008 in relation to the service of the claimant’s witness statements; and
(b)	the delay caused by that failure to adhere to the timetable agreed.
15.	The delay in this particular case is a delay of three weeks in adhering to the direction of the tribunal.  Whilst to disobey a direction of a tribunal is not an insignificant matter or something which is to be regarded as of no consequence, Mr McKee explained to the tribunal that this arose, he thought, by reason of some confusion caused by himself in relation to the date of the service of the witness statements by reason of him having been in two Case Management Discussions on the day that it was fixed.  The tribunal accepts that is the reason for the delay.
16.	As a consequence, in the tribunal’s view, it cannot be said that the delay was an intentional and contumelious default by the claimant.  Nor are the Orders made in the Case Management Discussion peremptory orders.
17.	The tribunal is also of the view that the conduct by the claimant does not amount to an abuse of the process.
18.	The tribunal does not regard the delay here as inordinate and inexcusable on the part of the claimant and as a consequence it cannot be said that there is a substantial risk that it is not possible to have a fair trial of the issues.
19.	No evidence was advanced on behalf of the respondent that a fair hearing was not possible or that there was serious prejudice to the respondent in the conducting of this matter by reason of the three week delay in lodging the claimant’s witness statement.
20.	Accordingly the tribunal refuses the respondent’s application to strike out the claimant’s claim for failure to comply with the tribunal’s Orders.

21.	Mr McKee also advised the tribunal, that in his view, this was an application that was doomed to failure from the outset and that the claimant may well bring an application for the costs of today’s hearing.  

Chairman:

Date and place of hearing:	28 July 2008, Belfast

Date decision recorded in register and issued to parties: