T Smith v Tesco Stores Limited

A whole claim may exceptionally be struck out where a party has conducted proceedings scandalously, unreasonably or vexatiously, a fair hearing is no longer possible, and no lesser sanction is proportionate. Fairness is not confined to the theoretical possibility of trying the issues. It includes avoiding undue time and expense, and having regard to other litigants and the tribunal’s finite resources.

A tribunal must take reasonable steps to identify and manage a litigant in person’s core claims. The litigant must nevertheless assist the overriding objective and cooperate with the tribunal and the other party. Strike out remains a last resort, not a means of avoiding difficult case management.

The claimant, a litigant in person, brought claims arising from his dismissal, including unfair dismissal and discrimination claims. The Employment Tribunal made extensive efforts over several preliminary hearings to identify and finalise the issues. The claimant repeatedly sought to add extensive material, failed to comply with an order to provide focused information for a list of issues, and left the hearing at which strike out was considered after refusing to address the Employment Judge.

Employment Judge Cookson struck out the whole claim under rule 37(1)(b) and (e) of the Employment Tribunal Rules 2013. A reconsideration application was refused. The claimant appealed on the limited ground that the tribunal had erred in concluding that a fair trial was no longer possible because of his failure to engage with the list of issues and his further amendment application.

1. Appeal dismissed. The Employment Tribunal made no error of law in striking out the whole claim. It had carefully found that the claimant’s conduct was scandalous, unreasonable or vexatious, that a fair trial was no longer possible, and that strike out was proportionate.

2. Under rule 2 of the Employment Tribunal Rules 2013, parties are required, not merely invited, to assist the tribunal in furthering the overriding objective. A litigant in person is entitled to reasonable assistance in identifying and clarifying core claims. That status does not remove the obligation to cooperate with the tribunal and the other party.

3. The three-stage approach in Bolch v Chipman, [2004] IRLR 140, applied. The tribunal had to consider whether there was scandalous, unreasonable or vexatious conduct; whether a fair trial was no longer possible; and whether strike out was proportionate. The need for anxious consideration and the draconian nature of strike out did not preclude its use in an exceptional case.

4. A fair hearing for rule 37(1)(e) is not limited to whether the claims could theoretically be tried. It includes the proper use of time and money, the demands of other litigants, and finite tribunal resources. Here, the relevant findings were not that every claim lacked sufficient particularity, but that the claimant had persistently refused to cooperate in preparing the case and was likely to continue doing so. One final-hearing listing had already been lost and preparation for the next was moving backwards.

5. The tribunal had already exhausted reasonable case-management measures. It was entitled to conclude that no useful lesser sanction, including an unless order, would secure compliance or a fair trial. This was not authority for routine strike-out of difficult claims; strike out is a last resort after conscientious attempts to bring the case fairly to trial have failed.

• Employment Appeal Tribunal: dismissed the claimant’s appeal in [2023] EAT 11.
• Employment Tribunal: Employment Judge Cookson struck out the whole claim under rule 37(1)(b) and (e) of the Employment Tribunal Rules 2013. The claimant’s reconsideration application was refused.