The EAT (Lady Smith presiding) has suggested, in Reilly v Tayside Public Transport, that an employment judge should not strike out unfair dismissal claims as having no reasonable prospect of success, where the principal issue is whether dismissal fell within the range of reasonable responses (see para 12 of the judgment).
Her reasoning was that sometimes wing members outvote a judge on the substantive hearing, and so it is wrong for the judge to pre-empt the possibility of that happening by striking out the claim before it reaches the substantive hearing.
This is curious reasoning. If the rules provide the power for a judge, sitting alone, to declare a case has no reasonable prospect of success, then why should that judge be prevented from exercising that power? Judges in criminal cases routinely find there is no case to answer, when in theory a jury might think differently. The whole point of a peremptory assessment of the merits of a case is that the judge has to be convinced it has no reasonable prospect of success in front of a 3-person panel. If he thinks there is a chance wing members might disagree with him, the case will not be struck out.
Perhaps more pertinently, the EAT also held that it is dangerous for judges to embark on assessing the evidence at a strike out pre-hearing review. Lady Smith’s comments at paragraphs 10 and 11 are salutory and worth reading.