DM Ridsdill and others v D Smith & Nephew Medical and others, EAT, 22 June 2006

Background

Mr Ridsdill and his colleagues brought claims of unfair dismissal. Early on in the case, the tribunal chairman set a timetable of dates – eg for the mutual exchange of witness statements and for the claimants to disclose details of their losses. When the claimants failed to comply, the respondent applied for all claims to be struck out. A pre-hearing review was called and, although some schedules of loss had been received, no witness statements had been disclosed. Concluding that he had heard no sensible explanation from the claimants as to why they had not responded to his orders or sought an extension of time, the chairman struck out all four cases. The claimants appealed.

Tribunal rules

These provide for various circumstances in which a tribunal may strike out a claim, such as where a case has not been actively pursued orders have not been complied with or it is no longer possible, in the tribunal’s view, to have a fair trial. However, the tribunal must always consider its overriding objective, which is to deal with cases justly.

Appeal

The EAT overruled the tribunal, re-instating the claims. It emphasised that striking out a claim is a draconian measure. The chairman had focused on the impending date of hearing when considering whether a fair trial was possible, yet an adjournment with the imposition of final time limits and an order for costs would have avoided that conclusion and still have ensured fairness and justice between the parties. Armed with the information he had, onus was on the chairman, and not the parties, to suggest an adjournment.

Comment

It can be very frustrating for the tribunal, as well as a compliant party, if one party fails to follow the procedures or to comply with tribunal orders intended to progress the claim. This case serves as a reminder that tribunals cannot be too hasty to use their ultimate sanction of strike out and should first look for alternative sanctions. Achieving fairness and justice must always be the objective, and strike out should be a last resort.