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Was it appropriate to strike out a case because of the Claimant's correspondence to a witness and the Respondent's solicitor?

Yes, held the EAT in A v B.

The Claimant, a specialty doctor for an NHS Trust, brought a number of claims arising from her dismissal on the grounds of misconduct, including unfair dismissal and sex and religious discrimination. During her employment, an intimate relationship with a more senior colleague had broken down. In the course of the tribunal proceedings, the Claimant sent a number of emails to that colleague and another colleague (both potential witnesses), and to the Trust's solicitor. The emails contained accusations of bullying and harassment, intimidation, threatening behaviour, and other unlawful or unprofessional conduct.

The Respondent applied to strike out the Claimant's claims. The tribunal accepted that the emails were not appropriate but held that a fair hearing was still possible. Rather than striking out the claims, it made a number of orders designed to control her correspondence. The Claimant continued and the Respondent made a second application. This time, the tribunal struck out the claims on the basis that the emails were "scandalous, unreasonable and vexatious", designed to intimidate the witnesses, in breach of the previous order, and had made a fair trial impossible.

The Claimant appealed. The EAT noted that two of the emails were sent before the Claimant received the tribunal's order, and these should not have been taken into account as she was not aware of the terms. However the EAT upheld the decision to strike out the case as the Claimant had breached the earlier orders aimed at controlling her correspondence, the emails were intimidatory, and there was no indication that she would act with restraint in future.

This case gives a clear warning to claimants to act reasonably, and will be useful for parties dealing with vexatious or abusive litigants.

Thanks to James English of Ward Hadaway for preparing this case summary.