Thursday 25 May 2006

Strike Outs

The Court of Appeal has, this morning, handed down a decision reinforcing the extreme nature of a strike-out order and emphasising how infrequently they should be made.

In Blockbuster Entertainment v James, the Claimant:

  • in breach of a tribunal order, failed to provide adequate further particulars of his claims
  • in breach of another tribunal order, refused to allow the Respondent to photocopy his disclosure documents, and attended the tribunal on day one of a six day hearing with previously unseen documents (including an undisclosed tape recording of an important conversation)
  • in breach of yet another tribunal order, refused to sign his witness statement, and attended on the morning of the hearing having made changes without notice to the employer (albeit the changes seem to have been minor).

The Court of Appeal upheld the EAT's decision, overturning the employment tribunal's decision to strike out the Claimant's case. Whilst the reasons are largely fact-specific, Sedley LJ gave the following guidance:

  • the first object of any system of justice is to get triable cases tried. The courts are open to the difficult, as well as to the compliant. It does not necessarily matter if the litigant is difficult, querulous and uncooperative (para. 18)
  • it is undesirable for a strike-out application to be made (or granted) on the first day of a six day hearing. If non-compliance is serious enough to warrant a strike-out application, this ought to be clear before the trial begins (paras. 19 and 21)
  • it is not satisfactory for a tribunal to simply record that a strike out is "the only proportionate and fair course to take". The tribunal's reasons should spell out why a strike-out is the only proportionate and fair course to take (para 20). Although Sedley LJ dos not expessly say this, it would seem desirable for a tribunal to expressly consider other sanctions (such as refusing to admit evidence) and explain why they are insufficient.

[Thanks to John Bowers QC of Littleton Chambers, who represented Blockbuster Entertainment Ltd., for informing me of this decision.]

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