EAT Practice and Procedure : Striking-Out/Dismissal – Strike out of part of a claim following non-payment of a deposit within the time required by a Deposit Order (DO). Appeal listed to be heard (jointly with another) because the grounds permitted to proceed to full hearing raised issues of potential importance as to the start date for the calculation of the time to pay allowed by the DO and whether despatch of a cheque by post two clear days before the time limit might be deemed delivery of ‘payment’ of the deposit in time.
In the event, those broader grounds not pursued. Instead, the claimant argued only a narrow point that an application to review the striking-out order should have been allowed on the specific facts (and its rejection at a preliminary stage was perverse) or that the application for review should have been treated as an application to extend time retrospectively for payment of the deposit (and not to have so treated it was perverse)
HELD: given the experience that the Employment Judge already had from his prior case management of the claim, and given the terms in which the review application was expressed, it was not possible to say his decision to assess the application for review as having no real prospect of success was perverse. Likewise, the terms of the application for review (made by solicitors) could not reasonably be construed as an application to extend time and it was not perverse for the Judge not to exercise that power of his own motion.
Failure to give early notice to the Respondent of his change of tack – in relation to the points to be argued on the appeal – led to an award of costs.
Recorder Luba QC
[2013] UKEAT 0295 – 13 – 1411
Bailii
England and Wales
Employment
Updated: 28 November 2021; Ref: scu.520024