Mace v Ponders End International Ltd

An unless order carrying automatic strike-out must state the required act with clarity and certainty. The party subject to it must be able to understand what compliance requires, and the Employment Tribunal must be able to determine whether there has been substantial compliance.

An order to provide “disclosure of all relevant documents” was inadequate where it did not specify whether it required a list of documents or copies of them, or state to whom any documents were to be sent. In this context, disclosure ordinarily means identifying documents, while inspection concerns production or copying. Ambiguity prevents the order from taking effect as an automatic strike-out.

The claimant, a warehouse operative dismissed for alleged misconduct, brought an unfair-dismissal claim. After he did not comply with an earlier case-management direction to exchange lists of relevant documents, the respondent sought an unless order.

The Employment Tribunal ordered the claimant to “provide disclosure of all relevant documents” by a specified date, with automatic strike-out for non-compliance. The claimant sent some documents to the Tribunal but not to the respondent. A Regional Employment Judge subsequently recorded that the claim had been struck out. On review, relief from that sanction was refused.

The claimant appealed. The central issue was whether the unless order was sufficiently clear and precise to trigger automatic strike-out.

1. Appeal allowed. The unless order of 9 January 2013 was unclear, ambiguous and incapable of founding an automatic strike-out. The judgment of 12 February 2013 was set aside and the claim remained extant.

2. An unless order must identify clearly what the affected party must do. This is particularly important for litigants in person. Clarity enables the party to comply, enables the Tribunal to assess substantial compliance, and avoids satellite litigation.

3. The order required the claimant to “provide disclosure of all relevant documents”, but did not state whether this meant supplying a list of documents or sending copies. It also did not identify the recipient of any copies. In civil procedure, disclosure means stating that a document exists or existed; inspection is the later process of showing the document, whether by physical inspection or copies.

4. Read in its proper legal context, the order would naturally require a list. A lay person could nevertheless understand it as requiring originals or copies. The claimant did in fact misunderstand it and sent documents to the Tribunal. The earlier case-management order did not cure the defective wording of the later unless order.

5. The Tribunal should spell out the practical steps required for disclosure and inspection, especially in an unless order. It should also consider the scope of the obligation and whether the sanction is proportionate. It was unnecessary to decide whether the unqualified word “relevant” would itself make the order defective, or whether there had been substantial compliance.

• Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Tribunal judgment recording automatic strike-out, and held that the claim remained extant.
• Employment Tribunal: Regional Employment Judge Gay, on 12 February 2013, recorded that the claim had been struck out for non-compliance with an unless order. At a review hearing on 28 March 2013, relief from the assumed sanction was refused.