EAT Practice and Procedure : Striking-Out/Dismissal : Postponement or stay
Perversity
The Claimant appealed the refusal of an Employment Tribunal to strike out the response. The exchange of witness statements had been ordered for 19 February 2014, 12 days prior to trial. In breach of this order, the Respondent did not serve 13 witness statements, but sought an extension of time for doing so. That was refused. The statements were still not provided. On the Thursday before the Monday when the hearing was due to start, another Judge ordered the statements to be brought to the Employment Tribunal, saying that strike-out would be considered. However, no unless order had been made.
The Claimant suffered from anxiety and depression, likely on the evidence to be exacerbated by a delay in the hearing of his claim. The judge found that the delay had been intentional and contumelious, such that he had a discretion to strike out the response, but declined to do so. An important factor in his reasoning was that the failure was a personal failure of the Respondent’s solicitor. The claims asserted discriminatory conduct toward the Claimant by individual Respondents; the failure was not directly their responsibility, there could be fair trial, and it would on balance cause them greater prejudice to be at risk of unjustified stigma than the prejudice would be to the Claimant if strike-out was refused.
The Claimant argued that the Employment Tribunal had adopted the wrong test – the unforgiving ‘post-Mitchell’ approach adopted in the Civil Procedure Rules (CPR) should be applied in the Employment Tribunal; that the conclusion as to the balance of prejudice was perverse, and that individual Respondents should be regarded as indissociable from their solicitor, such that his fault was theirs. Other ancillary complaints were also made.
Held: the overriding objective in the CPR contains specific considerations, of particular importance in the context in which those rules operate, which do not apply to the Employment Tribunals, where the overriding objective was repeated in revised Rules in 2013 without specific mention of those considerations. It is nonetheless part of dealing with a case justly that regard is had to the impact of a case upon the resources of the Tribunals, to ensure that one case does not exhaust a disproportionate share of them and by doing so deprive a later case of time, or delay its start. The Judge correctly applied the principles and authorities. An exercise of discretion cannot readily be attacked on appeal, and there was no error of law in the Employment Judge’s approach to his exercise of it in this case. He was entitled on the facts to find that the real fault was that of the solicitor, and was not in error of law in drawing the balance of prejudice as he did.
Langstaff P J
[2014] UKEAT 0102 – 14 – 3110
Bailii
England and Wales
Employment
Updated: 10 November 2021; Ref: scu.539615
