THE INDUSTRIAL TRIBUNALS

CASE REF:	4048/09

CLAIMANT:			Stewart David Corbett

RESPONDENT:		Allied Carpets Group (In Administration)

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claim is struck-out under Rule 18(7)(d) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

Constitution of Tribunal:
Vice President (sitting alone):	Mr Noel Kelly

Appearances:
The claimant did not appear and was not represented.
The respondent did not appear and was not represented.

1.	This matter has previously been the subject of Case Management Discussions on 26 February 2010, 23 April 2010 and 18 May 2010.  The claimant attended the first Case Management Discussion on 26 February 2010, but neither party attended the two subsequent Case Management Discussions.  

2.	No correspondence was received from either party indicating that they would not attend the Case Management Discussion on 18 May 2010 or seeking alternative arrangements for that Case Management Discussion.  

3.	The claim was listed for a pre-hearing review on 15 December 2010 at 11.00 am to determine the following issue:-

“Whether the claimant’s claim should be struck-out for failure to actively pursue his claim in accordance with Rule 18(7)(d) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.”

4.	Neither party attended or were represented at the pre-hearing review and neither party contacted the Office of the Tribunals to notify the office that they would not be in attendance or to seek alternative arrangements.  

5.	The Court of Appeal in Abegaze  v  Shrewsbury College of Arts & Technology [2010] IRLR 238 held at Paragraph 17 that:-

“The strike-out for failing actively to pursue the case raises some different considerations.  In Evans  v  Metropolitan Police Commissioner [1992] IRLR 570, 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 Procedures 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 be possible to have a fair trial of the issues, or there would be substantial prejudice to the respondents.”

6.	The claimant alleged in his claim form that he had been unfairly dismissed on 18 September 2008.  A detailed response was lodged on 19 May 2009 arguing that the claimant had been fairly dismissed for misconduct.  

7.	I am satisfied that the claimant’s failure to attend the last Case Management Discussion or the pre-hearing review amounts to intentional default and I am also satisfied that because of the failure of the claimant, indeed the respondent, to actively engage with this litigation, there is a substantial risk that it will not be possible to have a fair trial of the issues.  

8.	I therefore strike-out the claim under Rule 18(7)(d) of the Industrial Tribunals Rules of Procedure.

Vice President:

Date and place of hearing:	15 December 2010, Belfast

Date decision recorded in register and issued to parties: