Crook v Ministry of Defence

Employment tribunals must control their own procedure. In exceptional cases, a claim may be struck out where a litigant’s volume of correspondence or documents makes a fair hearing impossible. The power under Regulation 13(2)(e) is not incompatible with the Human Rights Act merely because it can prevent a claim being heard, although it must be exercised rarely and responsibly. An appellate tribunal confined to errors of law cannot treat the failure to apply the Human Rights Act as an error where the relevant decision preceded the Act’s commencement. Once a claim has been struck out, disclosure ordinarily serves no continuing purpose.

Timothy Crook brought Employment Tribunal claims against the Ministry of Defence concerning alleged harassment, favouritism and victimisation, and alleging unfair dismissal for making protected disclosures. The Tribunal struck out the claims under Regulation 13 because of the volume of material and correspondence sent by Mr Crook, and later refused to review that decision.

The Employment Appeal Tribunal dismissed his appeal and upheld the refusal to review. Mr Crook sought permission to appeal, arguing that the strike-out occurred before his claims were heard, that Regulation 13(2)(e) was incompatible with the Human Rights Act, and that disclosure should have been ordered. The central issues were whether the Employment Tribunal had erred in law and whether the later commencement of the Act affected its earlier decisions.

Application refused. The Court of Appeal found no realistic prospect of an appeal succeeding.

1. The Employment Appeal Tribunal could interfere only for an error of law by the Employment Tribunal. The Court of Appeal’s jurisdiction was similarly confined to errors of law in the Employment Appeal Tribunal’s decision.
2. The Employment Tribunal’s strike-out decision was made in March 2000, and its refusal to review that decision was made in May 2000. Both preceded the commencement of the Human Rights Act on 2 October 2000. The Employment Appeal Tribunal therefore could not identify an error of law in the Tribunal’s failure to apply legislation that was not yet in force. The fact that the Employment Appeal Tribunal heard the matter after commencement did not alter that position.
3. Lord Justice Longmore added that, even if the compatibility argument had been available, it had no prospect of success. Every court must have power to control its own procedure. In rare cases, where a litigant inundates a tribunal with material so extensively that it becomes impossible to do justice, the claim may have to be struck out.
4. Litigants should send only material that it is reasonable to expect the tribunal to read and should await a response before sending further material. Tribunal members cannot be expected to read repetitive documents at the expense of determining other genuine claims. The Employment Tribunal had given anxious consideration to the strike-out, and the Employment Appeal Tribunal’s comprehensive decision disclosed no error of law.
5. The disclosure complaint could not assist Mr Crook. Once the claims had been struck out, further disclosure was irrelevant and there was no basis for additional procedural orders.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 855, Lord Justice Longmore refused permission to appeal.
• Employment Appeal Tribunal: Dismissed the appeal and upheld the refusal to review the Employment Tribunal’s strike-out decision.
• Employment Tribunal: Struck out the claims for the manner in which they were conducted and subsequently refused review.