Terry v Hoyer (UK) Ltd

A strike-out is not confined to cases where a fair trial has become impossible. An Employment Tribunal may strike out for scandalous, frivolous or vexatious conduct, or want of prosecution, where the conduct cannot properly be tolerated having regard to the administration of justice, other litigants, tribunal time and respect for the process. The tribunal must assess proportionality and all the circumstances. A litigant in person merits appropriate consideration, but that status does not license outrageous behaviour. Article 6 does not require a radically different approach. Appellate intervention is limited to a wrong exercise of discretion or a plainly wrong decision.

This was a second appeal concerning the strike-out of an originating application by an Employment Tribunal sitting at Bristol. The appellant complained of unfair dismissal for asserting statutory rights, breach of contract and compensation under section 23 of the Employment Rights Act 1996. The Tribunal struck out the application under Rules 13(2)(e) and (f) of the 1993 procedural rules and refused a review. The Employment Appeal Tribunal dismissed the appeal. Before the Court of Appeal, the appellant argued that strike-out was disproportionate, that a fair trial remained possible, and that insufficient allowance had been made for his status as a litigant in person and the proposed appointment of a representative. The central issue was whether the appellate threshold for interference with the Tribunal’s discretionary decision had been met.

1. Disposition and appellate standard. The Court of Appeal unanimously dismissed the appeal. Lord Justice Pill delivered the principal judgment; Lady Justice Arden agreed and added observations, and Lord Justice Dyson agreed with both. An appellate court should interfere with a tribunal’s discretionary strike-out decision only where the discretion was exercised on a wrong basis or the decision was plainly wrong. The appellant therefore had to show that the Employment Appeal Tribunal’s conclusion was one that no reasonable tribunal acting properly and reasonably could reach.
2. Scope of the strike-out power. The court considered the administration-of-justice guidance in Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926. It declined to treat the fair-trial considerations relied on from Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 as an exclusive condition of strike-out. Conduct may justify strike-out even though a fair trial might technically remain possible. The Tribunal must consider all the circumstances, including the interests of litigants generally, the proper use of tribunal time and respect for courts and tribunals in the community.
3. Application. The Tribunal was entitled to find deliberate disregard of its timetable and orders, persistent abusive and threatening correspondence, disruption to preparation, and conduct directed both at the respondents and the Tribunal. The medical material did not establish that the appellant was unfit to conduct the litigation, and the Tribunal had observed his ability to present his case. The proposed appointment of a representative did not erase earlier conduct or license a further abusive communication. The Tribunal was entitled to conclude that the problem had not ended and to strike out under both limbs of the rule.
4. Subsidiary matters and costs. The finding that the representative’s appointment formed part of a stratagem was not central. The additional material concerning informal advice would not have caused prejudice. Arden LJ emphasised the unchallenged absence of any intention to comply, apology or evidence of a change of position. The appeal was dismissed with costs, subject to the stated personal-costs, Section 11 and legal-aid assessment directions.

1. Court of Appeal (Civil Division). On 4 May 2001, the second appeal was dismissed unanimously with costs.
2. Employment Appeal Tribunal. On 12 December 2000, the appeal from the Employment Tribunal was dismissed.
3. Employment Tribunal, Bristol. The Tribunal struck out the originating application after the hearing on 25 February 1999. Its decision disclosed on 25 March 1999 refused a review.