The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have regard to the Civil Procedure Rules on striking cases out.
Held: The school’s appeal was allowed. ‘Notwithstanding that CPR 3.9 has not been incorporated into the ET Rules, there has built up a body of authority in the EAT to the effect that, when considering any discretionary decision analogous to a relief from sanction, an employment judge must give active consideration to all the nine factors mentioned in that rule.’ That is incorrect.
The Employment tribunal regime was set up to be simpler than that which applies in general civil litigation: ‘I do not consider that the same detailed requirements are to be expected of an employment judge considering an application for a review of a sanction. Of course, the judge must consider all the relevant factors and must avoid considering any irrelevant ones. He might well find the list in CPR 3.9(1) to be a helpful checklist, although he would be well advised to remember that, in the instant case, that list might not cover everything relevant. But he is not under any duty expressly to set out his views on every one of those factors.’
Ward LJ, Sedley LJ, Smith LJ
Times 23-Nov-2009,  EWCA Civ 1190,  CP Rep 9,  ICR 473,  IRLR 124
Civil Procedure Rules 3.9, Employment Tribunals (Constitution and Rules etc) Regulations 2004 3
England and Wales
Appeal from – Neary v St Albans Girls’ School and Another EAT 9-Jan-2009
EAT PRACTICE AND PROCEDURE: Striking-out/dismissal / Review
Non-compliance with unless order. Automatic strike-out under ET Rule13(2). Additional strike-out order under Rule 18(7)(e) a nullity. Whether . .
Cited – Bastick v James Lane (Turf Accountants) Ltd 1979
The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending.
Held: The court refused to interfere with the exercise of his dicretion . .
Mentioned – Carter v Credit Change Ltd CA 2-Jan-1979
There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal’s exercise of its discretion. Stephenson LJ said: ‘All the reasons which he gave seem to me to be good reasons for the decision to which he came; many . .
Cited – Goldman Sachs Services Ltd v Montali EAT 19-Oct-2001
EAT This interlocutory appeal raises a point of general importance regarding Employment Tribunal practice where one Tribunal revisits and varies or alters an interlocutory order or direction made by an earlier . .
Cited – Maresca v The Motor Insurance Repair Research Centre EAT 12-Nov-2003
An employment judge had struck out the claim for non-compliance with an order for disclosure. Two days later, having complied fully, the claimant applied for a review. The employment judge summarily dismissed the application. Held Rimer J allowed . .
Cited – British School of Motoring v C Fowler EAT 24-Feb-2006
EAT Clark cited J Maresca and said that Rimer J had said that the court ‘ought to take into account’ all the CPR 3.9(1) factors on an application for relief from sanctions. . .
Cited – McGuire v Centrewest London Buses Ltd EAT 17-Apr-2007
Review of strike-out order – principles to be applied, see Maresca; proportionality; whether lesser sanction appropriate. Case remitted for rehearing of review . .
Cited – The Royal Bank of Scotland v Soper EAT 1-May-2007
EAT Cox J allowed an appeal against the refusal of a review application on the ground that the Chairman had not ‘directed himself as to the wider considerations required when exercising his powers of review’. . .
Cited – AEI Rediffusion Music Ltd v Phonographic Performance Ltd CA 1-Feb-1999
The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on . .
Cited – Bansal v Cheema CA 2-Mar-2000
The court considered the application of CPR 3.9(1) to a decision relating to the relief of a sanction.
Held: Lord Justice Brooke said: ‘It is essential for courts, exercising their discretion on an occasion like this, to consider each matter . .
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 – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Jones v Williams CA 27-May-2002
Cited – Tisson v Telewest Communications Group Ltd EAT 19-Feb-2008
The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
Cited – James v Blockbuster Entertainment Ltd EAT 18-Aug-2006
EAT Practice and Procedure – Costs
Costs orders for andpound;10,000 and andpound;1000 did not exceed the statutory maximum order Reg 14. Order for andpound;10000 made after striking-out order; that order was . .
Cited – Afolabi v Southwark London Borough Council CA 24-Jan-2003
The claimant applied for leave to bring an action for race discrimination nine years after the acts complained of. Leave was granted. The respondent said the tribunal should have heard the complaint first before deciding to extend time.
Held: . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2021; Ref: scu.380246