Practice and Procedure
An unless order was made requiring the respondent to disclose documents. The respondent contended, after the event, that compliance with the literal wording of the unless order was impossible. The respondent made some attempt at compliance. The attempt was determined not to have constituted material compliance, with the consequence that the response had been struck out. The respondent applied, pursuant to Rule 38(2) ET Rules, for ‘relief from sanction’. In rejecting the application, the employment judge erred in law in failing to take account of the attempt that the respondent made to comply with the unless order, or to analyse the extent of the failure in material compliance, in weighing up the interests of justice.
Observed; where there has been a total failure to comply with a clearly worded unless order the situation is relatively straightforward. Considerable problems can arise where there is an attempt to comply with an unless order, particularly if it is unclear, so that there is a genuine dispute about whether there has been material compliance and, if not, whether relief from sanction should be granted. A possible approach to case management in such circumstances is considered in in this judgment.
[2021] UKEAT 183 – 20 – 2306
Bailii
England and Wales
Updated: 18 July 2021; Ref: scu.663594