Mrs J Wolloms v CI Accountancy Limited and 2 others — 2020

Mrs J Wolloms applied to strike out the respondents' response because of repeated non-compliance with tribunal orders made at a private preliminary hearing on 19 July 2019. The application focused on the failure to agree and produce a final bundle by 24 April 2020 and to exchange witness statements by 22 May 2020. The claimant said the missing bundle documents included material said to undermine the respondents' defence, and she argued that the respondents were delaying the case and putting her to unnecessary cost.

Employment Judge Morris accepted that there was some force in the claimant's complaint and noted that, on the face of it, the respondents may have conducted the proceedings unreasonably and not complied with tribunal orders. The judge also referred to the duty under Rule 2 to co-operate with each other and with the tribunal, and observed that the case was not ready for hearing as it should have been had the orders been complied with. However, the judge made no formal finding on unnecessary costs because of the limited information available.

The tribunal held that strike-out is a draconian remedy and that cases should generally be tried on their merits. Applying the overriding objective and considering the magnitude of the non-compliance, responsibility for it, the prejudice caused, whether a fair hearing would still be possible, and whether a lesser remedy would be sufficient, the judge concluded that a fair hearing remained possible. The judgment cited De Keyser Ltd v Wilson, Weirs Valves and Controls (UK) Ltd v Armitage, and Blockbuster Entertainment Ltd v James in that analysis.

The application was therefore refused in full. The judge said that agreed case management steps were set out in a separate order and expressed confidence that, if those steps were followed, the matter could still be resolved and proceed to hearing in due course.