EAT Practice and Procedure: Striking-Out/Dismissal – Unless Order – Application for relief from sanction – ET Rules 2013 Rule 38(1) and (2)
On the employer’s appeal against the ET’s decision to granting the Claimant relief from the sanction of the earlier dismissal of his claim for non-compliance with an unless order.
Allowing the appeal:
The ET had to determine whether it was in the ‘interests of justice’ (having in mind the overriding objective) to set aside its earlier order dismissing the claim for failure to comply with an unless order. That was a matter of judicial discretion. It would not be for an appellate court to interfere unless the ET had failed to carry out the relevant balancing exercise (see per Simler J in BBC v Roden UKEAT/0385/14/DA) or taken into account that which was irrelevant or failed to take into account that which was relevant or reached a conclusion that was perverse; TFL v O’Cathail [2013] ICR 614 CA, Governing Body of St Albans Girls School v Neary [2010] IRLR 124 CA (in particular, per Smith LJ at paragraph 49), Global Torch Ltd v Apex Global Management Ltd and Ors (No. 2) [2014] 1 WLR 4495 (see paragraph 13 of the Judgment of Lord Neuberger PSC, approving Lewison LJ in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at paragraph 51), and Harris v Academies Enterprise Trust and Ors [2015] IRLR 208 EAT (per Langstaff P at paragraph 2).
As to what was in the ‘interests of justice’, having regard to the guidance laid down in Thind v Salvesen Logistics Ltd UKEAT/0487/09, this obviously allowed of a broad discretion, the material factors varying considerably, albeit that they would generally include the reason for the default and whether it was deliberate, the prejudice to the other party and whether a fair trial remained possible. The fact that an unless order had been made was also said to be an important consideration but would only be one such consideration.
The ET’s reasoning did not disclose a full explanation of the breach by the Claimant. Although consideration was given to the question whether a fair trial remained possible, the ET considered that question as at the date of the relief from sanction application (3/12/14) rather than the date on which the sanction was applied (1/8/14). There was no indication that the ET had considered whether it was appropriate to adopt this approach, in particular given other relevant considerations such as the importance of finality in litigation.
Further, having regard to the guidance provided by the Supreme Court in Global Torch, a plainly relevant factor was the policy objective behind unless orders, which was not solely a ‘floodgates’ point (as might be suggested by the ET’s reasoning); there was no indication that this had been taken into account.
Similarly, the ET had apparently taken the view that an alternative appropriate sanction was the award of costs against the Claimant but there was no indication that account had been taken of the Respondent’s argument that such an award should be made whether or not relief from sanction was granted.
This is not a case where the ET failed to carry out any balancing exercise but there was an error in the failure to import into the balancing exercise factors that were relevant to the proper exercise of the discretion. The decision was thus rendered unsafe but it could not be said to be necessarily perverse. There being more than one possible outcome on a reconsideration of the point, the matter would be remitted to be considered afresh by a different ET.
Eady QC HHJ
[2015] UKEAT 0128 – 15 – 0206
Bailii
England and Wales
Employment
Updated: 03 January 2022; Ref: scu.551788
