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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Girvan v Humberside Probation Trust [2009] UKEAT 0197_09_0608 (6 August 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0197_09_0608.html Cite as: [2009] UKEAT 197_9_608, [2009] UKEAT 0197_09_0608 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR J FRENCH (of Counsel) Instructed by: Messrs Andrew M Jackson Solicitors Essex House Manor Street Hull HU1 1XH |
For the Respondent |
MISS C WIDDETT (of Counsel) Instructed by: Humberside Probation Trust Legal Services 21 Flemingate Beverley North Humberside HU17 0NP |
SUMMARY
PRACTICE AND PROCEDURE
Striking out
An Employment Judge failed to consider relevant explanations offered by a Claimant in response to a strikeout application, and wrongly rejected her application for a review. The judge did not consider less drastic coercive measures, as were suggested by the Respondent itself. Appeal allowed, Employment Tribunal judgments set aside and remitted to a different judge for hearing of Respondent's strikeout application. Parties to report to Employment Tribunal on ADR steps taken within 28 days.
HIS HONOUR JUDGE McMULLEN QC
Introduction
Facts
"… I make an application for this matter to be struck out. Alternatively I would request that an order is made for Ms Girvan's draft witness statement to be faxed over immediately and that witness exchange takes place when Miss Girvan's final statement is available. In respect of the additional documents I would be content that this is dealt with by an addendum statement following receipt of the document. May I suggest the following timetable [which she gave, which would enable the trial date to be preserved]."
The Respondent also sent a copy of an email or a fax which it had sent to the Claimant indicating much the same as she said to the Tribunal.
"1. The Tribunal wrote to the claimant on 11th February 2009 in connection with the claim.
2. The Tribunal gave notice that it had power to strike out the claim because the claimant had not complied with a case management Order. The Tribunal gave opportunity to give reasons by 4pm on 13 February 2009, in writing, why such an Order should not be made.
3. The claimant has failed to give an acceptable reason why such an Order should not be made. The Tribunal therefore orders the claim to be struck out."
"Please just forward the new document, we can then allow Ms Girvan to consider them and prepare to exchange. We made this clear on Monday and Tuesday."
"Your application for a review has been refused because the Judge considers that there are no grounds for the decision to be reviewed under Rule 34(3) and/or there is no reasonable prospect of the decision being varied or revoked.
Your letter has not identified any ground for a review under Rule 34 and in any event your former solicitors failed to provide any or any satisfactory explanation for your failure to comply with the order requiring exchange of witness."
The submissions
"(1) On an application for relief from any sanction imposed for a failure to comply with any rules, practice direction or court order the court will consider all the circumstances including - (a) the interests of the administration of justice; (b) whether the application for relief has been made promptly; (c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure; (e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol; (t) whether the failure to comply was caused by the party or his legal representative; (g) whether the trial date or the likely trial date can still be met if relief is granted; (h) the effect which the failure to comply had on each party; and (i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence."
"The Judge is considering striking out the claim because you have not complied with the order direction of the tribunal. If you wish to object to this proposal, you should give your reasons in writing [on a certain date]."
Discussion and conclusions
Disposal