De Keyser Ltd v Wilson [2001] IRLR 324 the EAT Lindsay P presiding states the importance of asking the question as to whether a fair trial is still possible when considering a strike out. Bolch v Chipman [2004] IRLR 140 set out that in deciding to strike out (under what was at the time of this decision rule 37) the ET had to first identify the conduct and conclude that the conduct in question is not just unreasonable behaviour, but that a party has behaved unreasonably in conducting proceedings. Secondly whilst such conduct can lead immediately to a debarring order, such as when conduct is deliberate and contumelious disobedience of an order, ordinarily what is required is a decision as to whether a fair trial is still possible. The third point made is that if a fair trial is not possible the ET is still required to go on to consider the remedy which will be appropriate and that in the right circumstances a strike out will not be correct if a lesser remedy can be applied in the circumstances. Finally, the judgment deals with matters which in reality only apply to the case of a respondent.
Chidzoy v BBC [2018] UKEAT/0097/17/BA where HHJ Eady QC (as she then was) reviews the authorities and follows the approach taken first in De Keyser and then in Bolch . However, at paragraph 24 she sets out this in addition:
In Bailey v Aviva Employment Services [2025] EAT 109 His Honour Judge Auerbach adds an emphasis that where a claimant's conduct has potentially imperilled a fair trial, consideration should be given to managing that proportionately if at all possible. The claimant has also referred to the first instance decision in Chidzoy I do not consider this as a relevant authority given that the matter has been settled by appeal.
In Hughes Jarvis Ltd v Searle [2019] 1 WLR 2934 in an appeal against an order for committal where a witness had discussed matters with a third party overnight whilst still being subject to the oath. The Court of appeal made it clear that there was, technically (because of the requirements of the CPR), no Order upon which the committal could bite. However, the court made obiter comments as follows:
I then consider Cox v Adecco [2021] ICR 307. HHJ Tayler at paragraph 28, drew the following proposition from the case law:
Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327 indicates that it is not required that unreasonable conduct should mean that a fair trial was not possible at any stage, it is sufficient that a fair trial is not possible within the time allocated by the ET. The then EAT President Choudhury J comments:
The claimant has referred to two further authorities, these are not directly on point but do express general principles which I accept De Haes and Gijsels v Belgium 919970 24 EHRR and Timbo v Greenwich Council for Racial Equality [2012] EqLR 1010. The former demonstrate that equality of arms is an important aspect of ECHR article 6 rights to a fair trial; the latter that it is inappropriate to dismiss a discrimination case after only hearing from the claimant. The latter is however based on a dismissal based on a claimant's case being misconceived and is unrelated to conduct.
Discussion
Ground 1 contends that the ET approached Chidzoy incorrectly. It appears to me that in most circumstances the ET is required to make a finding as to the actual conduct involved. In respect of a breach of the instruction not to discuss evidence that would mean that it had to consider what had actually been discussed by the claimant and her representative. To strike out a case, particularly when only the claimant's evidence had been heard, is without doubt draconian. It is a radical step which should only be taken in the clearest of circumstances. Searle demonstrates that what is being protected is the proper administration of justice. It is the interference with that administration of justice which is to be considered and that requires evidence of what was discussed.
I do not accept the Miss Quigley's argument that it is not necessary to identify the content of discussion for the purposes of the four steps set out in Bolch . Without knowledge of that content, it is not possible to decide whether there has been the necessary interference. Further, without knowledge of that content it is not possible to properly know whether a fair trial is still possible or not. In addition, without knowledge of that content it is not possible to explore whether there is a realistic alternative to strike out. All of these are steps that are required by the approach in Bolch . However, the real question in my judgment is whether, despite that, the circumstances in this case can meet the requirements of De Keyser . Was the ET entitled to conclude that the conduct is deliberate and contumelious without considering the content of the discussions.
In this case the ET did not, and in fact could not (unless it accepted the claimant's account), find the content of the discussion. This was a private discussion of which the ET would not hear any evidence except from the participants. The respondents contend that to require a tribunal to make such a finding would be unfair to the respondents, because they could not provide any contrary evidence of the conversation. Miss Quigley for the second respondent contends that such a requirement was not imposed in the Chidzoy case, all the ET had to do there was reject that claimant's account.
In those circumstances it is contended that the ET is entitled to consider that simply the fact of a discussion when the claimant has been ordered not to discuss the case is sufficient for the ET consider this a breach of its Order. The respondents contend that it was inappropriate for the claimant to discuss the case at all because of the risks that her evidence would be influenced by her doing so. The respondents argue that there has been a loss of trust because the case has been discussed. I will return to the content of the warning in due course. However, in any event, it appears to me that there is no automatic loss of trust in such circumstances. Discussion of the case could take many forms from the detailed to the innocuous. An instruction to a lawyer along the lines of "please read the papers in my case and come along and help me when my evidence is finished" would not amount to an interference with the administration of justice whereas "tell me how to improve my evidence tomorrow" clearly would. Without knowledge of the content of the discussion it is not possible to clearly understand whether there is actually a problem.
Therefore, the ET should seek evidence of the content of the discussion, however the ET is also then entitled to reject that evidence. If the ET does reject that evidence then it can make no finding as to the content of the discussion. However, the claimant is not correct to say that the ET is then not making clear primary findings about the discussion and, as a result, is precluded from striking out for conduct in such circumstances. Where does that leave the ET; it is faced with deciding whether there has been a prohibited discussion but only has the rejected evidence of the claimant available to it. Is the ET then entitled to say then that this was deliberate and contumelious conduct?
The ET would, in those circumstances, have decided that the claimant was dishonest in her assertion as to the content of the discussion. Such an assertion would be specifically related to providing the ET with information about compliance with the instruction that it had given. Failure to give an honest account would entitle the ET consider that was a deliberate action to mislead. Such conduct would without doubt be described as contumelious. A decision on that issue means, therefore, that the ET would be entitled to apply the De Keyser basis for strike out based on a deliberate disobedience.
The respondents argue, based on the ET's findings at paragraphs 60 and 61 that the ET did find facts and rejected the claimant's evidence and so there would be no different outcome even if it had made an error in approaching this matter based on the Bolch factors. I will return to that argument in due course after I consider the grounds of appeal related to the process by which the ET reached this decision.
That decision raises a further potential problem, which does not necessarily apply in the circumstances of this case, but highlights how these types of situations are to be approached. In some respects it also relates to ground 2 along with this first ground. If a claimant is entitled, despite being in the course of her evidence, to instruct a representative how is a tribunal to approach such a situation where legal professional privilege is involved? As part of ground 1 the claimant contends that in Chidzoy the claimant was permitted to seek advice from her lawyer about the strike out issue.
The content of the instruction "not to discuss" which is given to witnesses, in short and long adjournments, where the witness remains under oath, varies from Judge to Judge. Sometimes a single Judge will vary the instruction so that a particular witness can understand what is required. However, it is important to recall the reason for such an instruction. The purpose, as above, is to ensure the proper administration of justice. In the case of a witness that is achieved by hearing their evidence in the absence of any outside influence. Influence on evidence ranges from the innocent, a subconscious recognition of a comment made by someone about the evidence, or the pernicious, the coaching of a witness in their evidence. It is that harm which the instruction is intended to avoid. In some respects this relates back to what I have set out above that the content of discussion is important. If the discussion is not capable of influencing the evidence then it cannot in reality be in breach of the purpose of the warning.
A party must be allowed to challenge the discussion if it considers it may be in breach of the instruction. However, where there is a professional lawyer, questions of legal professional privilege and conflict of interest arise. Faced with those circumstances a tribunal would normally expect that the lawyer would not give evidence but, also, would not mislead the tribunal in submissions (which would amount to professional misconduct). Alternatively, the lawyer could become a witness but, in such circumstances, would relinquish the role as representative. Here, the ET was dealing with circumstances where the representative was in the same position as a lawyer but was not qualified as a lawyer in this jurisdiction and therefore the professional codes did not specifically apply.
I make this much clear, I reject the proposition that the claimant would be entitled to discuss her evidence when instructing a representative despite the fact that she was under oath at the time. The purpose of the instruction does not allow for that. In respect of this and Ground 2 the respondents argue that the right to representation does not give the right to consultation during the course of evidence. As a proposition I agree with that insofar as it goes. However, the claimant is correct to indicate that her right to representation for a matter which arises during the course of a hearing should be respected. In practice, with represented parties, it is often the case that, if during the course of evidence a new matter arises, a Judge will give permission to a lawyer to consult with their client on the particular issue. The Judge might give instructions that this is the only matter to be discussed but nonetheless allow the discussion to take place. This is part of a fair trial, if, for example a document is produced which was not disclosed earlier, it is only fair that the party in question discuss that document with their lawyer.
In this case what was being proposed was a strike out, as I have already described it, a radical step. This was a situation with a litigant in person being asked to deal with an application to strike out her case because of conduct on the fourth day of a hearing. It is hard to imagine a more glaring example of the "rabbit in the headlights" ( Cox v Addecco ) situation for a claimant. This was not an issue related to the facts of the case. The claimant was suddenly faced with an aspect of law which would not have formed part of her preparation. In addition she was required to argue this new point against two experienced counsel. In those circumstances it appears to me that it would only be proper to allow the claimant an opportunity to consult a representative on that point . In Chidzoy access to the lawyer was allowed to consult with that claimant, however the lawyer in that case was not a participant in the discussion.
The problem arises here that the representative was involved in the discussion. That representative, although qualified overseas, was not necessarily bound by the same professional codes that a UK lawyer would be. The ET therefore had to consider how to approach this set of circumstances. A purely lay representative, without the experience of employment law that the claimant's representative had, would not be able to effectively advise. Those circumstances would suggest that not allowing the claimant to contact that representative before providing an account of events would be a proper case management decision. In addition, taking evidence from such a witness would be appropriate to comply with the obligation of the ET to attempt to establish the content of the discussion.
However, this representative of the claimant would have been able to advise her. Is the fact that this representative was a participant in the discussion a reason to prevent this representative giving the claimant advice before the claimant deals with the respondent's application for a strike out? As set out above a UK lawyer should be permitted to do so if not giving evidence. That said, without in anyway suggesting that the claimant's representative does not apply the same ethical standards that a UK lawyer would, the ET could not approach matters as if the representative is bound by the same codes of conduct. Because of that the ET could not simply rely on the representative being an "officer of the court" in the way that it might normally. The respondent argues that this is a reason why the claimant should be required to give her account before taking advice. Further, the respondents argue that the giving of "advice" is not a realistic way to approach this issue. The respondents contend that all that was required is that the claimant give an account, that did not require advice. It is important to note in respect of this particular question that the claimant specifically asked if she could speak to her "lawyer".
I reject the narrow definition of representation as being an advocate in court. Representation includes the giving of advice and the preparation along with the presentation of a case or issue. Part of giving advice is to assist with which evidence that might be given is relevant or irrelevant, but also to advise that a particular element of evidence to be given might require an expansion of detail in order to provide an appropriate account. In my judgment to prevent the claimant from taking such advice when she had requested to do so could only be an appropriate step if the ET had specific reason to prevent it. In my judgment the fact that the representative is a lawyer but not qualified in the UK is not, of itself, such a reason. The difference between the officer of the court and the claimant's representative can be met by the approach the ET takes to submissions, they do need to treat those submissions as not designed to mislead, they can treat them with as much caution as they deem necessary.
The respondents argue that as the claimant states that she would have given the same account to the ET, that means that the ET outcome would have been the same. This is a simplistic approach, although the account may be the same it is clear that there would have been additional elements of evidence given, that can be seen from the supplemental bundle documents. Although the respondents argue, for instance, that the claimant's reaction to providing her phone logs was indicative of dishonesty to the ET, her entire approach may have been different had she had advice beforehand. Not to allow the claimant to be represented on that point, by being provided with advice, prior to the claimant giving her account is in my judgment to prevent representation. The ET may have corrected itself in stating that the claimant was not yet represented, but in my judgment it prevented her from being represented in what was a crucial matter. It seems to me that this could have made a material difference to the outcome of the respondents' application to strike out.
This decision is sufficient to dispose of the appeal as on that basis the strike out must be set aside. However I shall go on to consider the remaining grounds in deference to the careful and detailed arguments presented by the parties.
Ground 3 contends that there was a breach of natural justice. It appears to me that there are two potential courses for the ET when faced with this sort of situation. The first is to take the claimant's position at its highest, which means accepting what she says was discussed and what was not. The alternative is for the ET to make findings of fact. It is of course a matter of case management which approach it takes. If it chooses the latter course it must allow the opportunity for evidence to be given in some form and as I have said in respect of ground 2 it must also allow representation if that is sought. The respondents' argument is that the claimant remained on oath and therefore was giving evidence when being asked questions by the ET. It seems to me this is to fail to recognise the reality of the situation from the claimant's perspective. The claimant would not have considered this a moment when she was giving evidence unless that was made clear to her that was what she was doing. It would, however, have been open to the ET to limit the evidence to the claimant. In the circumstances of this case if Mr Lennard was going to provide the advice then it would not be appropriate for him to give evidence because of the conflict that produces. However, the claimant's sister was also said to be a participant in the instruction of Mr Lennard. It was clear on that fourth day that this case would not conclude in the five days allocated to it. If the case was to continue it would be a part heard listing. In those circumstances, where there was still a further day of the listed hearing, and where the risk for the claimant was the end of proceedings, allowing the sister to be called to give evidence was an option. The respondents' argue that the ET was patient, it waited for Mr Lennard so that he could make submissions. However, I cannot say the ET was not applying natural justice to limit the evidence on the issue to the claimant in these particular circumstances. The failure of natural justice was to take evidence from the claimant without allowing her the opportunity to take the advice she had requested.
Ground 4 seems to me of some general importance . As a practical matter it might be useful for a Judge, as part of giving the instruction, to explain to a witness the purpose of the instruction and to indicate that it is possible to be influenced subconsciously so that the instruction is properly understood. Instructions not to discuss "the case" may be too broad a restriction given the purpose of the warning; the instruction aims to prevent influence on evidence, not all procedural discussions. In this case, whatever the express instruction was, if it went too far beyond protecting the administration of justice, then it cannot be said to be a reasonable instruction. However I do not accept that in respect of Ground 4 the ET could be considered to be at fault given the findings it made. On the evidence it heard it made a factual finding that the claimant had discussed her evidence, that would have fallen within the narrow meaning of the instruction as the conduct would have undermined its purpose. That finding meant that the ET would have been correct to find, had it followed the correct procedure, that the claimant had gone directly against an express instruction.
Ground 5 in my judgment if the ET had undertaken the steps to obtain the evidence and come to the same factual conclusions it would have been perfectly justified in striking out the claimant's case. It would have been in circumstances which were virtually on all fours with the Chidzoy decision. A claimant in the course of evidence cannot discuss evidence. As I set out above, the right to representation does not give the right to consultation during the course of evidence, it would be likely to amount to a breach of trust sufficient to make a fair trial impossible.
On that basis Ground 1 is dismissed, because the ET is permitted to take evidence and reject an account given, and that accords with the guidance in Chidzoy . Ground 2 is upheld; the claimant was prevented from taking advice on the issue of the strike out application and therefore deprived of representation, insofar as she was prevented for taking advice ground 3 is also upheld. and Grounds 4 and 5 are dismissed. I make it clear that, on the basis of my Judgment I am making no decisions about the factual matters which formed the basis for the application to strike out and there is nothing in my Judgment to prevent the respondents from renewing that application if they consider it appropriate to do so.
Sinclair Roche &. Temperley v Heard [2004] IRLR 763 presumes that a remitted matter will go back to the tribunal panel that previously heard the case unless there is a reason not to. The respondents submit that that presumption should apply here. The claimant argues that the case should go before a different panel when remitted. The respondents contend that the proportionality test is met because this panel are acquainted with all the facts, they have spent 4 days on the case and are equipped to deal with the case efficiently. The respondents argue that there is nothing to point to the tribunal being anything other than professional in their approach to this case. I am afraid I have to disagree that it ought to be remitted to the same panel, whilst I accept all of the above, this panel has made significant findings about the credibility of the claimant and has expressed a lack of trust in her and her evidence. With the best will in the world it will be difficult for the same panel to start again without calling on that previous impression, this matter shall be remitted to a different tribunal.