Rev Dr James George Hargreaves v Evolve Housing & Support & Anor

A strike-out for scandalous, unreasonable or vexatious conduct under rule 37 requires more than objectionable conduct. The conduct must mean that a fair trial cannot take place, and strike-out must be a proportionate response after considering lesser measures.

Absent evidence or a sound basis for concluding that the conduct creates a real risk to trial fairness, strike-out becomes an impermissibly punitive sanction. Discrimination claims remain subject to the strike-out jurisdiction, although tribunals should bear in mind the public interest in their substantive determination.

The Claimant appealed against the Employment Tribunal’s order striking out his discrimination, victimisation and unfair-dismissal claims. The Tribunal found that his use of correspondence and political campaigning was scandalous, vexatious and unreasonable, and concluded that a fair trial was impossible.

The appeal principally concerned whether those findings justified strike-out under rule 37(1)(b) and whether a fair trial could still take place. The Claimant also advanced grounds concerning access to justice, apparent bias, political expression and the public importance of discrimination claims.

1. Appeal allowed in part. Grounds one to three and six were dismissed, but ground four succeeded. The Tribunal’s findings that the Claimant had conducted proceedings in a scandalous, vexatious and unreasonable manner were not open to challenge on appeal.
2. Under rule 37, the established three-stage inquiry requires conduct falling within the rule, a resulting inability to have a fair trial, and a proportionate strike-out. A desire to derive political advantage from litigation is not, without more, an abuse of process. Here, however, the Tribunal was entitled to find conduct extending beyond that.
3. The Tribunal nevertheless erred in concluding that a fair trial was impossible. It had no evidence from prospective witnesses that they were frightened, intimidated, or unwilling to participate. Its reasoning rested on an assumed effect of the Claimant’s conduct. The Respondents also disavowed concern about his conduct towards witnesses during a hearing, where his questioning was appropriate and courteous.
4. The Claimant’s conduct outside the proceedings might attract other remedies. It did not establish that the claims could not be fairly tried. Nor could the absence of a suitable alternative order itself justify the Draconian sanction of strike-out; that would make the sanction punitive rather than protective of trial fairness.
5. The claims were reinstated and remitted for an open preliminary hearing to give necessary directions for a substantive hearing. Remission could be to Employment Judge Klimov, or to a tribunal of which he was a member, because apparent bias had not been established.

• Employment Appeal Tribunal: Appeal allowed in part: [2023] EAT 154. The strike-out order was set aside, the claims reinstated, and the matter remitted for an open preliminary hearing.
• London Central Employment Tribunal: Employment Judge Klimov struck out the claims under rule 37 on the ground that the Claimant’s conduct was scandalous, unreasonable and vexatious and that a fair trial was no longer possible. The reasons were sent on 4 June 2022.