Cunningham v Aurora Kendrick James Ltd

An unless order can provide for automatic strike-out on the date of non-compliance. An appellate tribunal considering an appeal from the resulting strike-out is concerned with error of law in giving effect to the order; it does not reopen the making or later variation of the order when those steps were not appealed. A party challenging earlier tribunal orders must comply with the applicable time limit. That limit is applied strictly to litigants in person as well as represented parties. A possible review or relief-from-sanction application does not enlarge the scope of an appeal against the automatic strike-out.

The appellant brought Employment Tribunal claims including disability discrimination and unfair constructive dismissal. Following repeated case-management directions, the Employment Tribunal made an unless order requiring information and witness statements, later revoking the information requirements but extending the deadline for witness statements. The claim was struck out after the statements were not served.

The Employment Appeal Tribunal, in UKEAT/0055/12/MAA, refused an application to amend the notice of appeal to challenge earlier orders and dismissed the appeal against the strike-out. The central issue on the renewed application for permission to appeal was whether the EAT had erred in treating the strike-out as automatic and in refusing the late challenge to the earlier orders.

Application refused. Lord Justice Rimer held that the proposed appeal had no real prospect of success.

1. Rule 13(2) of the Employment Tribunals Rules of Procedure permits an unless order to provide that a claim is struck out automatically on the date of non-compliance, without further consideration or hearing. The order in this case clearly had that effect. Paragraph 1 was revoked, but paragraph 2 remained in force, the time for compliance was extended, and the required witness statements were not served. The Employment Tribunal was therefore bound to give effect to the sanction. (paras [24]–[26], [32], [36])
2. An appeal to the EAT against the resulting strike-out was confined to identifying an error of law in the Employment Tribunal’s giving effect to the unless order. The EAT had no jurisdiction on that appeal to reconsider the merits or appropriateness of the original order, or of later orders refusing to revoke it, where those orders had not themselves been appealed. The Court of Appeal left open whether an Employment Tribunal might reconsider the appropriateness of the original order on a review application. (paras [36], [39])
3. The late attempt to amend the notice of appeal to challenge the earlier orders was properly refused. The applicable time limits were strictly applied, as illustrated by United Arab Emirates v Abdelghafar [1995] ICR 65, Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 and Jurkowska v Hlmad Ltd [2008] ICR 841. The same principles applied to a litigant in person.
4. The appellant’s reliance on inadequate disclosure did not justify the failure to serve witness statements. Such statements set out the witness’s own evidence rather than documents produced by another party. If specific disclosure was required, the proper course was an urgent application to the Employment Tribunal together with an application for an extension of time. Neither was made.

The EAT had made no error of law in dismissing the appeal. Permission to appeal was refused.

1. Court of Appeal (Civil Division) — On 12 July 2013, the renewed application for permission to appeal was refused.
2. Employment Appeal Tribunal — In UKEAT/0055/12/MAA, His Honour Judge Peter Clark refused permission to amend the notice of appeal and dismissed the appeal against the strike-out judgment on 7 June 2012.
3. Employment Tribunal — Employment Judge Pritchard struck out the claim for non-compliance with the unless order, in a judgment signed on 14 October 2011 and sent to the parties on 25 October 2011.