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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Terry v Hoyer (UK) Ltd  EWCA Civ 678 (4 May, 2001)
Cite as:  EWCA Civ 678
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Friday 4th May, 2001
B e f o r e :
LADY JUSTICE ARDEN DBE
LORD JUSTICE DYSON
|RONALD JAMES TERRY|
|- v -|
|HOYER (UK) LIMITED|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
MR A WHITE QC (Instructed by Messrs Ford & Warren, Leeds LS1 2AX) appeared on behalf of the Respondent
Crown Copyright ©
"The grounds are arguable. The case may also raise the issue of whether the use of the draconian penalty of strike out in circumstances such as these is compatible with Article 6 of the European Convention on Human Rights, particularly if there is a disparity in practice between courts and tribunals when both are determining civil rights and obligations."
"A Tribunal may-
(e) subject to paragraph (3), at any stage in the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Applicant or, as the case may be, Respondent has been scandalous, frivolous or vexatious; and
(f) subject to paragraph (3), on the application of the Respondent, or its own motion, order an originating application to be struck out for want of prosecution."
"... take into account the effect of what has happened on the administration of justice."
"... that the object of the rules as to discovery is to secure a fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or a defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been held. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the Court as to render further proceedings unsatisfactory and to prevent the Court from doing justice, the Court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him."
"16. In these circumstances, we find on the facts that the manner in which the proceedings have been conducted by the applicant has been frivolous. Secondly, we find as a fact that the application has not been prosecuted expeditiously. The timetable set by the Tribunal reflected the dates agreed by the applicant for the hearing. He has deliberately chosen to ignore that timetable. For those reasons, we strike out the Originating Application pursuant to Rule 13(2)(e) & (f) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 1993.
17. We also find that the applicant has conducted proceedings in a frivolous - and scandalous - manner in his dealings with the respondents and the Tribunal. He has pestered the respondents and their solicitors, been abusive to them, has accused them both of malpractice, of being part of a conspiracy, of negligence. He has threatened them. He has said he sees it all as a game. `I just love the Game'. He played the `Game' with the respondents which involved fighting a cause, not a case. His unduly lengthy and discoursive letters were disruptive of the preparation of the case. His letters to the Tribunal, sometimes personally addressing the Regional Chairman, were, at times, threatening, often bullying. He has tried to get his way by either misrepresenting what happened or feigning that he misunderstood what was said. He has hinted at bias. He threatened the Tribunal with adverse publicity, political involvement, and appeals. its extent and persistence made it threatening, and is way outside anything encountered before by this Chairman. In his dealings with the respondents and the Tribunal, we find he conducted proceedings frivolously. We also consider it amounted to scandalous conduct of proceedings. The application is struck out on that basis too."
"12. The applicant has failed to comply with the order. He has not provided documents. He has not provided the tape recording and transcript. He has not provided a witness statement. Why not? Because of ill health. We reject that. There is no medical evidence that he is unfit. To the contrary, it says that there is no reason why he should not be able to take part in the case. We do accept that he may be, or may have been, under some stress. That is not unusual for litigants. It is part of the process of the litigation. In this hearing, although he has been sipping milk and sniffing, he has shown no sign of fatigue. He has conducted his case with his usual vigour. He put his case with considerable force. Last, we take note of the vast number of very lengthy letters written by the applicant - many served in the last three days. In one, he refers to spending 11 hours at the keyboard. That hardly suggests that he is unfit to conduct litigation."
"18. There is one matter we must address. The applicant appointed Mr Hammond as his representative on the 19 February. The applicant knew Mr Hammond was not available on the dates agreed by him for the hearing. He also knew that Mr Hammond was unavailable this week. In other words, Mr Hammond had no time to prepare the case and could not represent the applicant on the agreed date. We are satisfied that this was part of the applicant's stratagem to avoid the hearing on the 1 March, thereby prolonging the game that he was enjoying with the respondents and putting them to further expense and inconvenience. We refer to the fact that, despite Mr Hammond's appointment, the applicant - not his representative - has written, often at length, several times this week to the Tribunal and the respondents' solicitors. The respondents are ready for the hearing, and delay prejudices them, particularly in greater costs - at the very least, further correspondence would be inevitable. The applicant says he was unable to get representation earlier. We do not believe that. We refer to correspondence saying that he had been advised by persons at the Law Centre. No attempt seems to have been made to seek representation from that source, for example. We appreciate that Mr Hammond is unable to represent the applicant today. But no one knows the applicant's case better than the applicant - or his motives for not complying with orders of the Tribunal. Mr Hammond would not have been able to do justice to the applicant's case at such short notice. (He is a Trade Union official, as we understand it, though with a legal background.) We have considered whether the applicant has been prejudiced by representing himself today, and find not. He is articulate, has what he want to say at his fingertips, has an encyclopedic knowledge of his case, and was well-able to express himself with vigour and clarity. The issue, though important, was well-understood and argued by him. The absence of Mr Hammond does not affect our decision."
"They cannot attend for the purposes of giving advice or support because they cannot provide unsupervised advice."