In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to submit to an examination by the defendant’s medical experts.
Held: Whilst the claimant’s lack of co-operation was frustrating, the remedy of strike out was excessive. It was not the case that a fair trial of the issues was no longer possible. The court said: ‘The strike-out for failing actively to pursue the case raises some different considerations. In Evans Executors v Metropolitan Police Authority [1993] ICR 151, the Court of Appeal held that the general approach should be akin to that which the House of Lords in Birkett v James [1978] AC 297 considered was appropriate when looking at the question whether at common law a case should be struck out for want of prosecution. (The position in civil actions has altered since the advent of the Civil Procedure Rules.) That requires that there should either be intentional or contumelious default, or inordinate and inexcusable delay such that there is a substantial risk that it would not be possible to have a fair trial of the issues, or there would be substantial prejudice to the Respondent.’ and ‘The events in this matter occurred nearly two years ago. It is true there was an ongoing investigation but the ongoing investigation is not about the incidents, it is about the way in which the investigation was carried out.
Memories do fade and whilst it is clear from the correspondence that the parties both agree that the proceedings should be stayed up to 29 February 2008, it was then the claimant’s solicitors who in fact suggested not that the stay be extended, but the claimant then give her particulars by 7 April. It was the claimant’s solicitor’s suggestion that matters should then move on.
Bearing in mind the time that has passed, I do think that that will prejudice a fair trial so taking everything into account I do consider that fault does lie with the claimant and, in all the circumstances and for the reasons set out, whilst allowing the review I confirm the judgment that the claim should be struck out and proceed no further as the claimant had failed to actively pursue her claim. In making that decision I have taken into account that the claimant is still in the employment relationship with the respondent.’
Ward LJ, Rimer LJ, Elias LJ
[2009] EWCA Civ 96, [2010] IRLR 238
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 18(7)
England and Wales
Citing:
Cited – Evans Executors v Metropolitan Police Authority CA 1993
The court considered that the approach in striking out an employment case should generally follow that in Birkett. . .
Cited – Blockbuster Entertainment Ltd v James CA 25-May-2006
The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a . .
Cited – Bolch v Chipman EAT 19-May-2003
EAT The EAT considered the consequences, of a decision to strike out a Notice of Appearance under Rule 15(2)(d).
Held: The EAT will require an employment tribunal, among other things, to consider the . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – El-Farargy v El Farargy and others CA 15-Nov-2007
The court gave its reasons for setting aside a decision of the judge not to recuse himself from an ancillary relief application, having made prejudicial remarks during a pre-trial hearing.
Held: The judge’s remarks were at such a level as to . .
Appeal from – Abegaze v Shrewsbury College of Arts and Technology EAT 4-Mar-2008
EAT Practice and Procedure – Striking out/dismissal – Bias, misconduct and procedural irregularity
An Employment Judge correctly struck out the Claimant’s claim for a remedy following a judgment in his . .
Cited by:
Cited – Sunley v HMP Durham EAT 12-Mar-2009
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal / Review
Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 01 November 2021; Ref: scu.301648
