Ms Caroline Karason v The Gateway Learning Community Trust & ors — 2022

At the open preliminary hearing on 20 June 2022, Employment Judge Barrett considered the respondents' application to strike out the claimant's claims under rule 37 of the ET Rules. The application relied on alleged scandalous, unreasonable or vexatious conduct, and alternatively on the contention that a fair hearing was no longer possible for the earlier claims in case 3202421/2019. The judgment applied the approach discussed in Blockbuster Entertainment Ltd v James, Bolch v Chipman and Riley v The Crown Prosecution Service.

The tribunal found one instance of scandalous and vexatious conduct: on 1 April 2021 the claimant emailed the tribunal stating that the respondents had conceded 20 of 23 issues, which she later accepted she had made up in order to provoke a response. It also found three instances of unreasonable conduct: her challenge to DAS Law's right to conduct litigation, her objection to the presence of the Eighth Respondent at the 28 April 2022 hearing, and her arrival at the listed final hearing without childcare in place despite earlier warnings. The tribunal rejected other criticisms, including the postponement of the March 2021 hearing and the later email address typo, finding those matters were explained or more likely to have been mistakes.

Even so, the tribunal found there had not been deliberate and persistent disregard of required procedural steps, and that a fair trial remained possible despite delay and some potential impact on witness memory. It held that striking out the claims would be a disproportionate and draconian sanction in the circumstances, and it also refused the fallback application to strike out the earlier claims in case 3202421/2019 on the basis that a fair trial was no longer possible.