Ms I Petrescu (1) Mr P Ndongu (2) v The Commissioner of Police of the Metropolis and 2 others — 2019

This judgment concerned preliminary applications before a listed full merits hearing. The claimants applied to strike out the responses of the First and Third Respondents because witness statements had not been exchanged by the ordered date. The tribunal found the First and Third Respondents should have been able to exchange statements by 14 August 2019 and had not made a prompt extension application, but the delay was less than three weeks at the time and did not meet the threshold for strike out.

Applying the authorities and Rule 37, the tribunal found no scandalous or vexatious disobedience and held that a fair hearing remained possible. It considered strike out disproportionate and instead accepted that postponement and revised directions were the appropriate course. The tribunal also accepted medical evidence that the Second Respondent could not attend or prepare until after 21 September 2019, meaning the full merits hearing had to be postponed and relisted.

On costs, the tribunal found that the First Respondent was in breach of the order to exchange witness statements and had successfully applied to postpone the hearing. Exercising its discretion under Rule 76(2), it ordered the First Respondent to pay £2,000 plus VAT as a contribution to the claimants' costs, reduced from the amount sought to reflect proportionality and the possibility that postponement might have been needed in any event.