Ms A Clarke v Abertawe Bro Morganwg University Health Board — 2022

Ms Clarke had worked as a nurse and, in April 2009, raised concerns about the treatment of a patient who later died. She reported the matter to the coroner on 17 April 2009 and said she was not invited to work any further shifts. She later brought a whistleblowing complaint, and the tribunal notes that the underlying liability hearing in 2012 dismissed her claims, her review application was unsuccessful in 2013, and the matter was then remitted for reconsideration after appellate proceedings.

This judgment concerned the respondent's application of 24 January 2022 to strike out the remitted reconsideration proceedings because the claimant had not taken steps to progress the case since January 2020. The tribunal found that the claimant had been given a reasonable opportunity to attend and make representations, but she did not attend the CVP hearing, did not respond to the notice of hearing, and did not reply to the tribunal's emails or the respondent's application. The tribunal accepted the respondent's account in the absence of any contrary statement from the claimant.

The tribunal found that there had been slow progress up to June 2019 and only modest communication until November 2019, but no positive step by the claimant thereafter to produce her copy of the notes of the liability hearing. It held that there had been at least 26 months of inaction without explanation, and that this failure was more likely than not to be conscious and intentional. Applying the authorities it cited, the tribunal also found the delay inordinate and inexcusable.

On sanction, the tribunal concluded that there was a substantial risk that a fair reconsideration hearing could not take place without the contemporaneous notes of the 2012 hearing, and that a new panel would be in an even weaker position. It also accepted that, because of the passage of time since the 2009 events and the likely fading of witness recollection, a fair rehearing was very unlikely to be possible. The tribunal considered an unless order but found no realistic basis to think it would secure compliance, so it granted strike-out and dismissed the claim under Rule 38(1)(e).