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Riley v The Crown Prosecution Service, Court of Appeal, 30 July 2013

16 August 2013
The issues

Striking out – ill health – claimant not ready for trial

The facts

The claimant brought a claim in the Employment Tribunal alleging bullying and harassment. Despite transfer to another team she never went back to work. She issued four sets of proceedings alleging race discrimination, bullying, issues arising out of the rejection of her grievance appeal and summary dismissal; and a fourth set complaining about the rejection of her appeal against dismissal.

She had previously relied on psychiatric evidence to show she had not been fit to attend a disciplinary hearing and later that she was unable to attend a court hearing because she was mentally and physically unfit to attend. A further report said that it was difficult to predict with certainty but that there was a possibility that the claimant would be likely to recover in the next three months; he could not however say when the claimant would recover sufficiently to participate in her proceedings.

When the matter came before the judge he had to take a view and reach a conclusion as to whether a fair trial was possible. He set out a series of contentions made by the respondent, The Crown Prosecution Service (CPS), as to why a fair trial was not possible – namely the mounting costs; the dimming of recollections of the witnesses; the worry and stresses of the respondent’s witnesses; the fact that some witnesses had left the respondent’s employment; and the absence of any definite prognosis. The judge concluded bearing in mind these factors to which he applied different weights, that a fair trial was not possible.

The decision

Subsequently the matter came before the Court of Appeal. The claimant who appeared in person argued that since her medical condition had been caused by the CPS in the first place as a result of bullying, intimation and discrimination, it was wrong for the CPS to take advantage of its own wrong to say that a fair trial was no longer possible.

None of the claimant’s submissions persuaded the Court of Appeal that the judge had erred in law.

The judge created a chicken and egg situation by saying that the court could not assume in advance of any hearing that that was the fault of the CPS. There was agreement between the medical experts that even after two years the probability was that the claimant would not be well enough to participate in any hearing, an adjournment for seven months which the claimant sought would therefore be a pointless exercise.

The overriding objective in ordinary civil cases was to deal with cases justly and expeditiously without unreasonable expense. Article 6 of the European Court of Human Rights emphasised that every litigant was entitled to a fair trial within a reasonable time. There is also an entitlement of litigants other than those that brought the litigation themselves that they should also not be compelled to wait for justice more than a reasonable time.

It would be wrong, therefore, to expect tribunals to adjourn heavy cases, which were fixed for a substantial amount of court time, many months before they were due to start merely in the hope that a claimant’s medical condition would improve. If doctors could not give any realistic prognosis of sufficient improvement in a reasonable timeframe and the case itself dealt with matters that were already in the distant past, striking out must be an option available to a tribunal.

Appeal dismissed.

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