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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> EB v. BA [2008] UKEAT 0139_08_0407 (4 July 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0139_08_0407.html Cite as: [2008] UKEAT 139_8_407, [2008] UKEAT 0139_08_0407 |
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At the Tribunal | |
On 21 May 2008 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)
![]() | APPELLANT |
![]() | RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR RICHARD LEIPER (of Counsel) Instructed by: Messrs Slaughter & May Solicitors One Bunhill Row LONDON EC1Y 8YY |
For the Respondent | MR CHRISTOPHER JEANS (One of Her Majesty's Counsel) Instructed by: Messrs ![]() ![]() Solicitors 100 New Bridge Street LONDON EC4V 6JA |
SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Review
The Employment Tribunal made an unless order against the claimant requiring her to take positive steps by a particular date. The Tribunal concluded that she had failed to take those steps and her case was automatically struck out. She sought a review to have the case reinstated. The employment Judge granted the review but refused any relief. She appealed both decisions.
The EAT held that there was no error of law by the Tribunal. Appeals dismissed.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The history.
whose judgment Ward and Moses LJJ agreed) summarised what had to be done as follows
(para 55):
"An examination of the detailed conclusions of the EAT about the projects which the appellant had identified reveals the difficulties which she and her counsel faced. Her failure to get evidence about a project was noted. If a Scott Schedule had been prepared by the respondent summarising all or a substantial number of the projects during the period May 2000 to July 2001 with the reasons why the appellant was not chosen, then the appellant and her counsel could then have concentrated on those which supported her case. As it was, she had to make from memory a shot in the dark about which of the projects might support her case. It is plain that the court envisaged that there would be projects for which she would not be suited, but she would be in a position to know which were realistic possibilities for her and which were not."
"The claimant is ordered to indicate which projects or proposals or groups of projects or proposals she does not wish to pursue by 28 March 2007."
"Case 1 The claimant by having indicated that she "does not wish to pursue" a particular project proposal is deemed to have conceded the respondent's explanation and the respondent succeeds, or:
Case 2 The claimant is deemed to have not conceded in relation to that particular project proposal . and therefore the respondent, having produced no evidence to support her asserted explanation, the respondent is deemed not to have met the burden of proof and the claimant succeeds."
The claimant said that under Case 1 she put all of the projects and proposals in issue, and if Case 2 was the proper analysis, then she put none of them in issue.
"Unless the claimant indicates which projects or proposals, or groups of projects or proposals she does not wish to pursue by 27 April 2007, her claim will be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or hearing in accordance with rule 13(2) of the Employment Tribunal Rules of Procedure 2004."
following terms:
" in compliance with the Tribunal's order of 4 April 2007 that the claimant "indicates which project or proposal or groups of projects or proposals she does not wish to pursue...", I hereby inform you that there are no projects or proposals or groups of projects or proposals that I do not wish to pursue."
The Strike Out hearing.
"In myview
it should now be clearly recognised that the sanction embodied in an 'unless' order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it, in any material respect. This has a number of consequences, to three of which I think it is worth drawing particular attention. The first is that it is unnecessary, and indeed inappropriate, for a party who seeks to rely on non-compliance with an order of that kind to make an application to the court for a sanction to be imposed or, as the Judge put it, 'activated'. The sanction prescribed by the order takes effect automatically as a result of the failure to comply with its terms. If an application to enter judgment is made under Rule 3. 5(5), the court's function is limited to deciding what order should properly be made to reflect the sanction which has already taken effect. Unless the party in default has applied for relief, or the court itself decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not arise. It must be assumed that at the time of making the order the court considered all the relevant factors and reached the decision that the sanction should take effect in the event of default. If it is thought that the court should not have made the order in those terms in the first place, the right course is to challenge on appeal, but it may often be better to make all reasonable steps to comply and seek relief in the event of default."
" Following expiry of the time for compliance, the strike-out sanction takes effect. Thereafter it is open to the party in default to apply for a review of the strike out judgment, coupled with an application to extend time for compliance with the underlying order requiring him to do or not to do something; here serve a list of documents and witness statements."
"The Claimant has argued in her submission of 25 June that the terms of the Unless order did not state that a 'nil return' was not acceptable. That is a narrow analysis of the Unless order. The Chairman was careful to adopt in the Unless order the language of the Case Management Order of 31 August 2006 and told the parties that that was her intention. The Order of 31 August 2006 was made in an attempt to comply with the guidance of Hooper LJ in the Court of Appeal. The intention was that by the Claimant selecting those projects and proposals which she wished to pursue, the case would be made more manageable. The so-called 'nil return' made by the Claimant, does not achieve this end and goes against the essential intention of the Tribunal Orders of 31 August 2006 and the Unless order. The Claimant was in no doubt that it was incumbent upon her to eliminate those projects which, at thevery
least, she considered irrelevant, as she argued on 4 April. It is disingenuous for the Claimant to now suggest that a 'nil return' complies with the Unless order. Her notice of appeal to the Employment Appeal Tribunal argues against the requirement to limit the scope of her claim and had she thought that a reply declining to restrict the scope of the projects and proposals was consistent with the Unless order, she would not be appealing against the requirement to limit that scope."
The review hearing.
" The Chairman is not satisfied that there has been an unintentional failure to comply, a good explanation for the failure, general compliance with all other orders or prejudice to the trial date. Taking the matter overall and considering all the circumstances, the Chairman is not satisfied that there should be relief from the sanctions."...sic).
(It is clear from the judgment, and I believe common ground, that the "or" should read "and". The judge found that there had been prejudice to the trial date.)
The grounds of appeal.
Strike out.
The review application.