THE INDUSTRIAL TRIBUNALS

CASE REF:	1652/08

CLAIMANT:			Fernando Vierira

RESPONDENT:		Mivan Limited

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:-

(i)	The claimant’s claim is struck-out on the grounds that it has not been actively pursued by the claimant, pursuant to Rule 18(7)(d) of the Industrial Tribunals Rules of Procedure, as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Drennan QC

Appearances:
The claimant did not appear, nor was he represented.
The respondent was represented by Mr H Coll, Solicitor, of Elliott Duffy Garrett, Solicitors.

Reasons

1.	This hearing was arranged to consider the respondent’s application for a decision by the tribunal to strike-out the claimant’s claim on the grounds that it had not been actively pursued, pursuant to Rule 18(7)(d) of the Industrial Tribunals Rules of Procedure, as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  

2.	The claimant presented his claim to the tribunal in July 2008, in which he named as his representative, Silks, Solicitors, of Oldbury, West Midlands.  The said claim related to a claim of unfair dismissal (constructive) and/or a claim for breach of contract.  The respondent presented a response on 30 December 2008, in which it denied liability for the claimant’s said claims.  Notice of Hearing was issued on 11 February 2009 for a hearing on 17 April 2009.  By letter dated 13 February 2009, the respondent’s representative, informed the tribunal a one-day hearing would not be appropriate, as the respondent intended to potentially call six witnesses.  He noted some or all of these witnesses, given the subject-matter of the claim, would require to travel from England for the hearing.  By letter dated 19 February 2009, to the then representatives of the parties, the tribunal therefore re-arranged the hearing for 15 April 2009 to 17 April 2009.  By letter dated 9 March 2009, the tribunal was informed by Silks, Solicitors, that they were currently without instructions from the claimant and they wished to come off record; and they asked all correspondence to be sent in future to the claimant at 7 Saville Road, Smethwick, West Midlands, B67  7PN, which is the same address as set out on the claim form.  The letter of 9 March 2009 was sent to the claimant and the respondent’s representative by letter dated 10 March 2009; and subsequently the tribunal’s records were amended accordingly.  

3.	By Notice dated 17 February 2009, the respondent’s representative sought additional information from the claimant.  This was sent to the claimant’s then solicitors, Silks, but without response.  Following the said firm of solicitors coming off record, as set out above, by letter dated 11 March 2009, the said Notice was sent to the claimant at his home address by the respondent’s representative.  Again there was no response from the claimant.  By letter dated 18 March 2009, the representatives of the respondent applied to the tribunal for a Case Management Discussion for the tribunal to consider making an Order for Additional Information and further, having regard to the terms of the overriding objective and the fact that the claim was listed for three days, with witnesses required to travel from England, to ascertain whether the claimant intended to pursue the claim unrepresented or whether he intended to instruct an alternative firm of solicitors to act on his behalf and to deal with the application for the said Order.  A copy of this letter had been sent to the claimant by the respondent’s representative and it was subsequently sent by the tribunal by letter dated 26 March 2009.  By letter dated 26 March 2009, the claimant was also informed by the tribunal of the date of the Case Management Discussion, which had been arranged for 2 April 2009.  In addition, he was offered the use of telephone conference facilities at the said hearing.  Again, the claimant did not respond to this correspondence.  Indeed, it has to be noted that none of the above correspondence sent to the claimant by the respondent’s representative or the tribunal has been returned, at any time, by Royal Mail.

4.	The claimant did not attend the Case Management Discussion on 2 April 2009 and no explanation was provided to the tribunal for his failure to attend, nor did he make any application for a postponement of the hearing.  In view of the claimant’s failure to respond in any way to the above correspondence sent to him at his home address and his failure to attend the Case Management Discussion on 2 April 2009, having regards to the terms of the overriding objective, I was not prepared to allow the substantive hearing to proceed on 15 – 17 April 2009.  In doing so, I was particularly concerned that witnesses would be required to travel from England for any such hearing.  

5.	In the circumstances, I therefore decided, at the Case Management Discussion on 2 April 2009, to make an Order for Additional Information, requiring the claimant to provide the additional information set out in the respondent’s Notice for Additional Information dated 17 February 2009.  The date for compliance with the said Order was 15 April 2009.  This date for compliance of the Order was given so, by the date of this hearing, it would be known if the said Order had been complied with by the claimant.  A copy of the Record of Proceedings of the hearing on 2 April 2009, as set out in the Record of Proceedings dated 2 April 2009, was sent to the claimant at his home address by letter dated 2 April 2009, together with a copy of the said Notice for Additional Information dated 17 February 2009.  I was informed by the respondent’s representative, at this hearing, that this Order has not been complied with by the claimant nor has he had any correspondence from the claimant in relation to the said Order.  

6.	In addition, at the Case Management Discussion on 2 April 2009, I decided that a pre-hearing review would be arranged to consider the respondent’s application for a decision to strike-out the claimant’s claim on the grounds that the claimant’s claim had not been actively pursued, pursuant to Rule 18(7)(d) of the Industrial Tribunals Rules of Procedure, as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  As set out in the Record of Proceedings dated 2 April 2009, the claimant was informed that, at the pre-hearing review, he would be given an opportunity to give reasons orally to the Chairman or tribunal as to why the decision to strike-out his claim should not be made.  A pre-hearing review was arranged for 17 April 2009 and formal Notice of Hearing of the pre-hearing review to consider the above application was sent to the claimant at his home address by Notice dated 2 April 2009.  Again, there has been no response by the claimant to the said correspondence, which has not been returned to the tribunal by Royal Mail, and the claimant, as indicated above, did not attend this pre-hearing review.  In essence, since the claimant’s former solicitors, Silks, have come off record, there has been no correspondence nor any contact, either orally or in writing, by the claimant with the tribunal and/or the respondent’s representative in relation to this matter and/or the involvement by the claimant at any hearing arranged by the tribunal.  

7.	The respondent, at this hearing, made an application for a decision of the tribunal to strike-out the claimant’s claim, pursuant to Rule 18(7)(d) of the Industrial Tribunals Rules of Procedure, as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that the claim had not been actively pursued by the claimant.  In considering this application, firstly, it was necessary for me to consider whether the claimant had failed to actively pursue his claim; and then, whether, taking account of all the circumstances, I ought to exercise my discretion to strike-out the claim.  I am satisfied the tribunal has an unfettered discretion but it requires to take account of all the facts and circumstances, including the fact that to strike-out a claim is the most serious of sanctions.  In considering whether to strike-out a claim on the grounds that it has not been actively pursued, I was satisfied that it is necessary to consider the principles laid down in the case of Birkett  v  James [1997] 3WLR38, which was applied, in an industrial tribunal context, in the case of Executors of Evans and Another  v  Metropolitan Police Authority [1992] IRLR 570. The Birkett  v  James case provides two categories of cases, which can be considered to show a failure to actively pursue a claim:-

(i)	where there has been ‘intentional and contumelious’ default by the claimant; and

(ii)	where there has been inordinate and inexcusable delay, such as to give rise to a substantial risk that a fair trial would not be possible or where there would be serious prejudice to the respondent.  

8.	Given the history of this matter, as set out above, in the previous paragraphs of this decision, and, in particular, the claimant’s failure to respond to correspondence from the tribunal and/or the respondent’s representative in relation to the future conduct of this matter and his failure, without any explanation, to attend the Case Management Discussion arranged for 2 April 2009 or to reply to the Order for Additional Information dated 2 April 2009, I am satisfied that there has been ‘intentional and contumelious’ default by the claimant, as envisaged in the first category of cases set out in the decision of Birkett  v  James.  The claimant has clearly received all such correspondence, as it has not been returned by Royal Mail.  Further, he has not attended this pre-hearing review and taken the opportunity, which he had been given, to either orally at this hearing or, in writing, to provide any reason why this decision to strike-out his claim should not be made.  

In the circumstances, I am satisfied that it is appropriate, in the exercise of my discretion, to strike-out the claimant’s claim (see further the decision of Rolls Royce PLC  v  Riddle UKEATS/0044/07 and Drummond  v  Babcock Naval Services Ltd and Ministry of Defence UKEATS/0025/08).

In light of my said decision, it was not necessary for me to consider further whether the second category of cases, identified in the Birkett  v  James case, had been established by the respondent’s representative.  

9.	The claimant’s claim is therefore struck-out on the grounds that it has not been actively pursued, pursuant to Rule 18(7)(d) of the Industrial Tribunals Rules of Procedure, as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

Chairman:

Date and place of hearing:	17 April 2009, Belfast

Date decision recorded in register and issued to parties: