James Corpe v Fulcrum Private Clients Limited — 2023

At a case management hearing on 23 May 2023, the claimant applied for the third sentence of paragraph 18 of the respondent's Grounds of Resistance to be struck out. The disputed pleading said that the claimant's actions on or around 21 November 2022 amounted to repudiatory conduct which the respondent accepted. The claimant relied on the respondent solicitors' letter of 2 December 2022, which said the respondent elected to affirm the contract, and the respondent accepted that this created an ostensible contradiction.

The tribunal applied rule 37(1)(a) and the approach in Ezsias v North Glamorgan NHS Trust. It held that the respondent had not identified a sufficient factual basis for arguments that it was unable to affirm the contract because of a total failure of consideration, or that new termination rights arose shortly thereafter. The tribunal said the pleaded case did not set out those alternative factual foundations and the respondent had not explained what facts would support them.

The Employment Judge concluded that the part of the response asserting repudiatory breach and acceptance of repudiation had no reasonable prospect of success and struck it out in part. The judgment did not determine the underlying unlawful deduction from wages claim, which was described as concerning whether wages paid in December 2022 and January 2023 were less than the wages the claimant should have received.