Striking out and barringTimes 14 Augustsee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee HM Revenue and Customs Commissioners v Fairford Group plcsub nom Commissioners for HM Revenue and Customs Commissioners v Fairford Group plcsee also Striking outsee also Striking out:groundssee HM Revenue and Customs Commissioners v Fairford Group plcsub nom Commissioners for HM Revenue and Customs Commissioners v Fairford Group plcTimes 1 Decembersee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking outsee also Striking out:groundssee also Striking out:nature and effectsee also Striking out:nature and effect
12.14Striking out is both a case management power and a method of summary disposal of proceedings. These two functions are linked by the need to ensure that proceedings are used for their proper purposes. It is not the function of a tribunal to spend time on cases that are destined to fail, whether for lack of jurisdiction or merit. Nor is it the function of a tribunal to spend unnecessary time on cases when a party is not properly pursuing the proceedings.
12.15The power to strike out is not sufficient to ensure the proper use of proceedings. This may depend on the co-operation of the respondent, especially if it is a public body. For respondents, the only effective equivalent is to bar that party from further participation in the proceedings.
12.16Respondents may also raise issues in the course of proceedings. As there are no separate cross proceedings in tribunals, those issues are raised in the same proceedings. In those circumstances, barring the respondent from further participation in the proceedings effectively operates as the equivalent to striking out.
12.17The same provisions and principles apply to both striking out and barring. For convenience, hereafter in this section only striking out is mentioned.
12.18As there is no decision in proceedings that are struck out, the case has not been dismissed.
12.19If striking out or barring is not a proportionate response, the tribunal may exercise its lesser power to restrict a party’s participation in the proceedings.
1See specific provision in: UTR r7(2)(d); GRC Rules r7(2)(e); HESC Rules r7(2)(e); PC Rules r8(2)(e); Tax Rules r7(2)(d). Under the other rules, it may be permissible to achieve this result under the tribunal’s general case management powers. In contrast to striking out and barring, this does not require notice to the party or an opportunity to make observations, although this may be necessary to ensure a fair hearing or to comply with the overriding objective.
Rationale
12.20The justification for striking out is that the proceedings are abusing the tribunal’s process.
12.21In
Hunter v Chief Constable of the West Midlands Police,
2[1982] AC 529. Lord Diplock explained the rationale for striking out as being:
… to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its rules of procedure, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
3[1982] AC 529 at 536.12.22This explanation is now out-of-date for not covering the impact that a case may have on the operation of the system as a whole, and thereby on other users. Lord Woolf MR set the power in this context in
Swain v Hillman:
4[2001] 1 All ER 91.It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose; and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position.
5[2001] 1 All ER 91 at 94.Under TCEA
12.23The power to strike out must be conferred by the rules of procedure. Tribunals, unlike the courts,
6Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536. have no inherent power to strike out.
7Kelly v Ingersoll-Rand Co Ltd [1982] ICR 476 at 480. See also: R (Harpers Leisure International Ltd ) v Guildford Borough Council (2009) Times 14 August, in which Charles J decided that a tribunal had no inherent power to stay proceedings for an abuse of process; Foulser v Commissioners for Her Majesty’s Revenue and Customs [2011] UKFTT 642 (TC), in which the First-tier Tribunal decided that it had no inherent jurisdiction to strike out in order to prevent abuse. However, a tribunal could achieve the same effect by adjourning a case indefinitely.
8O’Keefe v Southampton City Council [1988] ICR 419 at 422. This is unnecessary under TCEA.
12.24There is no express power authorising rules of procedure in respect of striking out under TCEA. It is either embraced by ‘practice and procedure’ within section 22(1) or is an ancillary power under paragraph 16 of Schedule 5. UTR r8 is illustrative under TCEA:
9See also: GRC Rules r8; HESC Rules r8; Lands Rules r8; PC Rules r9; SEC Rules r8; Tax Rules r8; WPAFC Rules r8. The power under IAC Rules r7 is limited to non-payment of fees. The CPR equivalent is CPR 3.4.(1A)Except for paragraph (2), this rule does not apply to an asylum case or an immigration case.
(1)The proceedings, or the appropriate part of them, will automatically be struck out-
(a)if the appellant or applicant has failed to comply with a direction that stated that failure by the appellant or applicant to comply with the direction would lead to the striking out of the proceedings or that part of them; or
(b)in immigration judicial review proceedings, when a fee has not been paid, as required, in respect of an application under rule 30(4) or upon the grant of permission.
(2)The Upper Tribunal must strike out the whole or a part of the proceedings if the Upper Tribunal–
(a)does not have jurisdiction in relation to the proceedings or that part of them; and
(b)does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.
(3)The Upper Tribunal may strike out the whole or a part of the proceedings if–
(a)the appellant or applicant has failed to comply with a direction which stated that failure by the appellant or applicant to comply with the direction could lead to the striking out of the proceedings or part of them;
(b)the appellant or applicant has failed to co-operate with the Upper Tribunal to such an extent that the Upper Tribunal cannot deal with the proceedings fairly and justly; or
(c)in proceedings which are not an appeal from the decision of another tribunal or judicial review proceedings, the Upper Tribunal considers there is no reasonable prospect of the appellant’s or the applicant’s case, or part of it, succeeding.
(4)The Upper Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant or applicant an opportunity to make representations in relation to the proposed striking out.
(5)If the proceedings have been struck out under paragraph (1) or (3)(a), the appellant or applicant may apply for the proceedings, or part of them, to be reinstated.
(6)An application under paragraph (5) must be made in writing and received by the Upper Tribunal within 1 month after the date on which the Upper Tribunal sent notification of the striking out to the appellant or applicant.
(7)This rule applies to a respondent or an interested party as it applies to an appellant or applicant except that–
(a)a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent or interested party from taking further part in the proceedings; and
(b)a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent or interested party from taking further part in the proceedings.
(8)If a respondent or interested party has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Upper Tribunal need not consider any response or other submission made by that respondent or interested party.
General principles
12.25In
Hunter v Chief Constable of the West Midlands Police,
10[1982] AC 529 at 536. Lord Diplock implied that there was a duty to strike out proceedings that were an abuse of process. This is now out-of-date. In the context of article 6, the decision to strike out proceedings must be a proportionate response to the conduct that has prompted it. This emphasises the judgment that is involved, which the courts usually refer to as a discretion.
12.26Striking out should be used as a last resort. As Lord Woolf MR explained in
Biguzzi v Rank Leisure plc:
11[1999] 1 WLR 1926.There are alternative powers which the courts have which they can exercise to make it clear that the courts will not tolerate delays other than striking out cases. In a great many situations those other powers will be the appropriate ones to adopt because they produce a more just result. In considering whether a result is just, the courts are not confined to considering the relative positions of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the effect of the court’s ability to hear other cases if such defaults are allowed to occur. It will also involve taking into account the need for the courts to show by their conduct that they will not tolerate the parties not complying with dates for the reasons I have indicated.
12[1999] 1 WLR 1926 at 1933.12.27The courts have declined to set out a comprehensive list of categories of conduct that involve abuse of process. In
Ashmore v British Coal Corporation,
13[1990] 2 QB 338. Stuart-Smith LJ said:
What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material.
14[1990] 2 QB 338 at 348.12.28Striking out should only be used in the clearest cases of abuse. It is not an appropriate means of summary disposal for a difficult or important issue.
15Attorney-General of the Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274. In
Dyson v Attorney-General,
16[1911] 1 KB 410. Fletcher Moulton LJ said:
Differences of law, just as differences of fact, are normally to be decided by trial after hearing in court, and not to be refused a hearing in court by an order of the judge in chambers.
17[1911] 1 KB 410 at 419.It may be appropriate to strike out a party’s case if it is exaggerated or is based in part on fraud. There will usually be other ways to handle the problem,
18Ul-Haq v Shah [2010] 1 WLR 616 and Fairclough Homes Ltd v Summers [2012] 1 WLR 2004 at [50]–[51]. but the extent of the fraud or forgery may be so serious that it would affront the tribunal to allow the case to proceed.
19Masood v Zahoor [2010] 1 WLR 746 at [71]. There are also practical steps that can be taken to cope with parties who are persistent in correspondence that contains wild allegations that are expressed in an intemperate or aggressive tone.
20Dransfield v the Information Commissioner and Devon County Council [2013] UKUT 0550 (AAC) at [16]–[19].12.29The decision whether or not to strike out involves a balancing of competing considerations; it must not be taken dogmatically. In
Johnson v Gore Wood & Co (a firm),
21[2002] 2 AC 1. Lord Bingham said that the decision involved:
… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court …
22[2002] 2 AC 1 at 31.If a party has forfeited the right to pursue a case, the other party’s conduct is not relevant.
23Masood v Zahoor [2010] 1 All ER 888 at [75].12.30Before CPR, the general rule in the courts was that striking out was only appropriate in the case of prejudice to another party, except where there was procedural abuse, questionable tactics or contumelious and intentional, or repeated and persistent, default.
24Costellow v Somerset County Council [1993] 1 WLR 256 at 264. This issue will now be subsumed by the balancing exercise required to apply the overriding objective.
12.31Caution is required if the striking out will affect someone’s ability to secure employment.
25Welsh Ministers v Care Standards Tribunal [2008] 1 WLR 2097. It will rarely be appropriate to strike out a case at the end of proceedings.
26Masood v Zahoor [2010] 1 All ER 888 at [72]. Once the hearing is complete, it will only be appropriate to use the strike out power in exceptional circumstances and, as a judgment is a possession under Article 1, Protocol 1 to the European Convention, it would have to be proportionate to do so.
27Fairclough Homes Ltd v Summers [2012] 1 WLR 2004 at [36] and [46]–[48].Grounds for striking out and barring
12.32Striking out is appropriate on three grounds: (i) lack of jurisdiction; (ii) likely outcome; and (iii) manner of conduct in the proceedings.
Lack of jurisdiction
12.33Striking out may be appropriate for cases over which the tribunal clearly has no jurisdiction. Proceedings are of no benefit to the party who presents such a case and detrimental to the other parties and to other users of the tribunal system. Similarly when the case can only, or more appropriately, be dealt with by another tribunal.
12.34However, striking out is not appropriate if the tribunal’s jurisdiction is a serious issue in the proceedings. Under UTR r8(2), the tribunal is under a duty to strike out a case over which it has no jurisdiction unless it transfers the case to another court or tribunal. This duty arises even if the lack of jurisdiction only becomes apparent after detailed analysis at an oral hearing. It therefore operates to prevent the tribunal deciding the issue of jurisdiction and allowing that issue to be tested on appeal. This may effectively deprive the party to that case of a right of appeal and others of the right of access to the tribunal in the future. As such, it may be outside the permissible scope of a procedural provision. There is no specific enabling power authorising this duty. It can only be authorised by the general power to make rules governing practice and procedure (TCEA s22(1)) or by the power to confer ancillary powers as are necessary for the proper discharge of the tribunal’s function (TCEA Sch 5 para 16). It cannot be the latter, as it is not a necessary power. And the former cannot be used to remove jurisdiction: see chapter 3.
12.35Under UTR r8(4), the party whose case would be struck out or who would be barred must be given the chance to make representations on the proposed order.
Likely outcome
12.36Striking out may be appropriate for cases that cannot succeed. Proceedings are of no benefit to the party who presents the case and detrimental to the other parties and to the other users of the tribunal system. It applies whether the claimant is asserting a positive case or merely putting the other party to proof.
28Commissioners for Her Majesty’s Revenue and Customs v Fairford Group plc [2014] UKUT 0329 (TCC) at [30]. This is a procedural mechanism and does not alter the substantive jurisdiction of the tribunal or of a court with related jurisdiction.
29Revenue and Customs Commissioners v Changtel Solutions UK Ltd (formerly ENTA Technologies Ltd) [2015] 1 WLR 3911 at [45].12.37This is only appropriate if the outcome for the case is, realistically and for practical purposes, clear and incontestable. It may be appropriate if the opposing case is vague, evasive, incoherent or obviously ill-founded, although this may be overcome by amending the case.
30Commissioners for Her Majesty’s Revenue and Customs v Fairford Group plc [2014] UKUT 0329 (TCC) at [30]. The tribunal should avoid conducting a mini-hearing when deciding the issue.
31Commissioners for Her Majesty’s Revenue and Customs v Fairford Group plc [2014] UKUT 0329 (TCC) at [41]. Striking out is not usually appropriate if facts relevant to the ultimate outcome of the case are disputed.
32Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 at [25]–[32]. And if a party is not represented, it may be appropriate to allow the case to be presented, however implausible it may seem on paper.
33Merelie v Newcastle Primary Care Trust (2004) Times 1 December.12.38The power of strike out on this ground should not be used without an oral hearing if the case involves unresolved issues of fact that require a hearing or the application of discretion on which oral evidence or argument might be appropriate.
34R (AM) v First-tier Tribunal [2013] UKUT 333 (AAC).12.39Under TCEA, the threshold is whether the case has no reasonable prospect of succeeding. This is similar or equivalent to ‘no real prospect of succeeding’. In
Swain v Hillman,
35[2001] 1 All ER 91. Lord Woolf MR said of this phrase:
The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to ‘fanciful’ prospect.
36[2001] 1 All ER 91 at 92.This will include a case that is manifestly misconceived.
37E T Marler Ltd v Robertson [1974] ICR 72, where the phrase ‘frivolous or vexatious’ was used in relation to the power to award costs; Stuart-Smith LJ in Ashmore v British Coal Corporation [1990] 2 QB 338 at 347.12.40Under UTR r8(4), the party whose case would be struck out must be given the chance to make representations on the proposed order.
Conduct in the proceedings
12.41Striking out may be appropriate as a response to the way that a party is conducting the proceedings. The behaviour may be detrimental to the other parties and, by wasting time, to the other users of the tribunal system. Striking out on account of a party’s conduct is a draconian step of last resort.
38Fairclough Homes Ltd v Summers [2012] 1 WLR 2004 at [49]. The tribunal should consider other ways of dealing with the case: (i) drawing adverse inferences; (ii) through its power to award costs, if it has one; (iii) by referring the case to the Upper Tribunal for punishment for contempt under TCEA s25.
39Fairclough Homes Ltd v Summers [2012] 1 WLR 2004 at [51].12.42Under UTR r8(2) and (3)(a) and (b), the conduct that leads to striking out may take two forms: (i) failure to comply with a direction in which the party was warned of the risk; (ii) failure to co-operate to such an extent that the tribunal cannot deal with the proceedings fairly and justly.
12.43Under UTR r8(4), the party whose case would be struck out under (ii) must be given the chance to make representations on the proposed order. No chance has to be given under (i).
12.44In the courts, it may be an abuse of process to bring proceedings again on the same issue without fresh supporting evidence,
40White v Aldridge QC and London Borough of Ealing [1999] ELR 150. although this power must be exercised flexibly if the tribunal has an inquisitorial function.
41[1999] ELR 150 at 157. Under TCEA, the same result can be obtained by directing the party to produce further evidence.
12.45In the courts, it may also be an abuse of process to attempt to bring proceedings on an issue that could and should have been raised in earlier proceedings.
42Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31. Under TCEA, the tribunal might decide that it could not deal with the proceedings fairly and justly in such circumstances if the other party has relied on the issue not being raised in later proceedings.
12.46It is not possible to strike out or bar in respect of conduct before the proceedings began.
43For example: on account of the destruction of evidence. See chapter 10.The nature and effect of barring
12.47The Upper Tribunal considered these issues in
SL v Secretary fo State for Work and Pensions and KL-D.
44[2014] UKUT 0128 (AAC). (a) A decision to bar had to be made consistently with the overriding objective, which encouraged effective participation. (b) If the tribunal gave a direction with a view to barring a party who did not comply, it should ensure that this result did not follow from any breach, however minor. (c) Barring is only effective prospectively. It does not have retrospective effect. (d) The tribunal may summarily determine issues against the party, but this must not be used as a penal provision. The tribunal must act in accordance with the overriding objective when deciding whether to exercise this power and act fairly if it does so. This requires the tribunal to take proper account of evidence and arguments already submitted. (e) The person barred remains a party. (f) This means that the party retains the right to appeal and to ask for written reasons.
45ZB v Secretary of State for Work and Pensions [2013] UKUT 0367 (AAC) at [11] and [14] (g) An application for permission to appeal is a separate proceedings to which the barring does not extend.
46This was how the Employment Appeal Tribunal proceeded in Gainford Care Homes Ltd v Tipple and Roe [2016] EWCA Civ 382, although the decision of the Court of Appeal does not disclose whether the point was argued or decided. (h) If a case is remitted to the tribunal for rehearing, this gives rise to new proceedings to which the barring does not extend.
12.48In
ZB v Secretary of State for Work and Pensions,
47[2013] UKUT 0367 (AAC) at [15]. See also CW v Secretary of State for Work and Pensions and another [2014] UKUT 0290 (AAC). the Upper Tribunal decided that the fact that a party had been barred might affect what was required by way of reasons for the tribunal’s decision and how the Upper Tribunal exercised its power to refuse to set aside a decision despite an error of law.
Overall view
12.49The appropriate response to the same failing by a party may arise in different contexts. For example: the appellant’s failure to comply with directions may lead to an application by the respondent that the proceedings be struck out or by the appellant for the irregularities be waived or both. The decision should not be affected by the context in which it is raised. It is important to take an overall view of the impact on the proceeding, as Sir Thomas Bingham MR explained in
Costellow v Somerset County Council:
48[1993] 1 WLR 256.In the great mass of cases, it is appropriate for the court to hear the summonses together, since in considering what justice requires the court is concerned to do justice to both parties, the plaintiff as well as the defendant, and the case is best viewed in the round.
49[1993] 1 WLR 256 at 264.Reinstatement
12.50In
Gaydamak v UBS Bahamas Ltd,
50[2006] 1 WLR 1097. the Privy Council provided a framework for factors to consider when considering reinstatement. The case concerned a party who failed to appear, but the principles have a general application. Applying
Grimshaw v Dunbar,
51[1953] 1 QB 408. the Privy Council identified three relevant factors:
52[1953] 1 QB 408 at [14]–[16]. (i) the reason for the failure that led to the striking out of the case; (ii) whether there was undue delay in applying for reinstatement; and (iii) whether the other party would be prejudiced by the reinstatement. As to the merits of the case, the Privy Council held that they were generally irrelevant:
… it would be a rare case in which an application by a blameless absent litigant for re-instatement of proceedings which had been struck out as a result of his absence were refused on account of the hopelessness of his case. And it is also, in their Lordships’ opinion, apparent that it would be for the person resisting re-instatement of the proceedings on that ground to satisfy the court that the proceedings were indeed hopeless.
53[1953] 1 QB 408 at [18].12.51In
Synergy Child Services Ltd v Ofsted,
54[2009] UKUT 125 (AAC) at [13]. the Upper Tribunal added two more factors:
When considering whether an appeal should be reinstated under rule 8(6) [HESC Rules], a Tribunal should have regard to the broad justice of the case, in the light of all the circumstances obtaining at the time the application for reinstatement is being considered.
The broad justice of the case is required by the overriding objective and taking account of changes of circumstances is necessary in order to apply factor (iii) in Grimshaw.
Tactics
12.52The threat of striking out the proceedings may persuade a party to co-operate and the power to reinstate the proceedings, if there is one, may be exercised to impose conditions as to the future conduct of the proceedings.