EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Respondent brought unfair dismissal proceedings. The Appellant failed to serve a Response. A default judgement was entered and the Appellant applied to set it aside by a letter of 18 January 2010 in which it was said that ‘it would be justifiable on the grounds of reason and justice to . . accept the [Appellant’s] response’.
The Employment Judge found (a) that the letter did not contain a request for an extension as required by rule 33(2) of the Employment Tribunal Rules Procedure 2004; and (b) the application to set aside the default judgment should be refused.
Held (Allowing the appeal):
1. The letter of 18 January 2011 contained an implied request for an extension of time for serving the Response;
2. An implied request would suffice and would comply with rule 33(2) of the Employment Tribunal Rules Procedure 2004;
3. The appropriate principles for considering whether the default judgment should be set aside are not merely those set out in rule 33(5) and (6) of the Employment Tribunal Rules Procedure 2004 but also those set out in Kwik Save Stores Ltd v Swain [1997] ICR 49, 54-55; and
4. The application of those principles meant that the default judgment should be set aside.
Judges:
Silber J
Citations:
[2011] UKEAT 0010 – 11 – 1103
Links:
Jurisdiction:
England and Wales
Employment
Updated: 03 September 2022; Ref: scu.430532