Striking out where a fair trial is impossible within the existing trial window (Emuemukoro v 1) Croma Vigilant (Scotland) 2) Huggins)

Where, because of the scandalous, unreasonable or vexatious manner in which proceedings have been conducted by or on behalf of a party, it is impossible to conduct a fair contested trial within the existing trial window, that can be grounds for striking out some or all of the claim or response (provided such an order would be proportionate), even though a fair trial would later be possible if an adjournment or postponement of the trial were granted, according to the Employment Appeal Tribunal (EAT).

Emuemukoro v 1) Croma Vigilant (Scotland) 2) Huggins (EA-2020-000006-JOJ (previously UKEAT/0014/20/JOJ))

What are the practical implications of this judgment?

The employment tribunal power to strike out part or all of a claim or a defence is one of the most powerful in its arsenal.

One of those, under rule 37(1)(e), is where the tribunal takes the view that ‘it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out)’. That ground means that it will never again be possible to have that fair hearing, i.e., that no amount of delay and expenditure of further cost to allow further preparation could make a fair hearing possible again. That ground might apply, for example, where a key relevant witness has died, has moved abroad and cannot be traced, or the view is taken that so much time has elapsed that witness memories have faded sufficiently to make a fair hearing impossible.

That was not the situation in this case. Almost two years had elapsed since the dismissals central to the claim, and the claimants’ losses were continuing to accrue. The case had, finally, been listed for a five day hearing. However, on the first of those five days, it remained the case that:

• no witness statements had been prepared for the respondents, and
• the purported trial bundle (also the responsibility of the respondents in this case), although large, did not include ‘the documents which mattered’

These deficiencies, which were entirely the fault of the respondent’s representatives, were so severe that it was clear that no proper contested trial could take place within the five-day trial window.

It would, however, (at least arguably) have been possible still to hold a fair trial of the issues if an adjournment had been granted and the respondent had been given sufficient time to remedy the problems and ready itself for trial. It followed that the ground under rule 37(1)(e) did not apply because it was not impossible for evermore to hold a fair trial.

One of the other grounds for exercising the power to strike out, under rule 37(1)(b), is that ‘ the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent has been scandalous, unreasonable or vexatious’.

Previous case law (Blockbuster Entertainments v James) declared that that ground for strike out was exercisable in one of two situations, one of which was that the conduct in question had ‘made a fair trial impossible’.

In the present case, it was argued, before the employment tribunal and again before the EAT, that that meant a fair trial must be impossible for evermore; the fact that a fair trial was not possible within the current trial window was not enough. In particular, it was argued that since the ground under rule 37(1)(e) only applied when a fair trial had been rendered impossible for evermore, that must mean that the same test applied under rule 37(1)(b).

The EAT firmly rejected that argument, finding instead that the fact that a fair trial is, on account of the offending party’s conduct, not possible within the current trial window, may indeed be a valid ground for strike-out under rule 37(1)(b) even though it would not be under rule 37(1)(e).

It was particularly important to the factual situation in this case that:

• the main merits trial window had arrived and had started
• the strike-out application was being heard on the first day of that trial window, and
• the claimants were all ready to go, whereas the respondents were not, entirely through the fault of their representatives

Of course, this does not mean that it will always be appropriate to strike out a claim or a defence where, through one party’s scandalous, unreasonable or vexatious conduct it is impossible to have a fair trial of the matter within the current trial window. In order for a strike-out to be ordered in those circumstances, such an order must be the proportionate response.

As regards the question of proportionality, the EAT confirmed that:

• if there are several possible responses to unreasonable conduct (one of which is an order to strike out), and one of those responses is ‘less drastic’ than the others in achieving the end for which the strike-out power exists, then that would probably be the only proportionate response and the others would not
• in most cases there is likely to be only one proportionate response which would be the least drastic of the options available

However, this case is a good example of an employment tribunal finding that striking out was a proportionate response, and the EAT upholding that finding:

• the employment tribunal had specifically found that the only alternative course of action, granting a lengthy adjournment, would have entailed ‘unacceptable prejudice to the claimants’. This was because of the delay since losing their jobs almost two years prior to the hearing and the fact that the claimants’ considerable losses continued to grow substantially from week to week
• striking out was, therefore, considered to be the least drastic course to take in this case, given that the alternative (adjournment) would necessarily entail unacceptable prejudice

Before the EAT, Counsel for the respondent suggested that costs could have been awarded in favour of the claimants to compensate for that adjournment, and that that would have been a more proportionate course to take. The EAT was not moved by that submission, and instead found that the employment tribunal acted properly within its discretion by electing to strike out, specifically because the deleterious effects of the strike-out were less ‘drastic’ than the effects that would have followed from what would have had to be a lengthy adjournment.

The importance of this case is thus that any party that, through its own scandalous, unreasonable or vexatious conduct, is not ready for trial by the time that the listed window for the main merits hearing arrives will be at risk of being on the wrong end of a strike-out application, and it may not be a sufficient answer to say:

• that a fair trial would still be possible later after an adjournment or postponement, and
• that the wronged party can be compensated for the delay by being awarded costs

Case details

• Court: Employment Appeal Tribunal
• Judge: Choudhury J, President
• Judgment published: 17 November 2021

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