Miss Q v Ben Adams Architects Limited — 2020

This was a preliminary hearing about disclosure difficulties and strike out applications, not a merits hearing. The Claimant renewed an application to strike out the Respondent's response because of alleged non-disclosure of documents and the impact this had on her ability to proceed. The Respondent's counter-application to strike out the Claimant's claim was not pursued.

The Tribunal applied rule 37(1)(c) of the Employment Tribunal Rules of Procedure and the approach in Weir Values (UK) Ltd v Armitage. It held that strike out is a draconian power and should be used only as a last resort. Although there had been ongoing disclosure disputes, the Tribunal found that there had at least been partial disclosure and that a substantial bundle existed. The remaining disclosure issues were said to concern discrete matters.

The Tribunal was satisfied that a fair trial was still possible. It said the disclosure issues could be addressed by cross-examination and submissions, and that negative inferences could be drawn if documents that should have been disclosed were not produced. It also noted that less draconian responses, including costs, were available.

The Tribunal noted the Claimant's health concerns and the GP letter from 27 November 2020, but found that the medical evidence did not show that she would be unable to attend a final hearing. It therefore dismissed the strike out application and indicated that any outstanding disclosure should be identified in case management orders for the final hearing.