Miss A Bovell v Reading Borough Council — 2022

The tribunal considered Miss Bovell's application to strike out Reading Borough Council's defence or restrict the respondent from continuing to participate in the ongoing hearing. The application concerned Ms Sarah Gee giving evidence by CVP rather than in person, the absence of medical evidence supporting that arrangement, concerns about Ms Gee's witness statement and credibility, outstanding witness order issues, and two documents at pages 183(a) and 183(b) of the bundle.

The tribunal found that the issue about Ms Gee's witness statement had been resolved at the previous hearing: the respondent would rely on the original statement, with brief supplemental questions to update her employment status following retirement. The tribunal also found that pages 183(a) and 183(b) had been provided to the claimant that morning, and that the claimant could not identify any other specific missing documents. The tribunal held that credibility and reliability points about Ms Gee's evidence were matters for cross-examination and closing submissions, not grounds to strike out the defence part way through the liability hearing.

On the failure to provide medical evidence for Ms Gee's CVP attendance, the tribunal accepted there had been non-compliance with its order, giving the claimant a legitimate complaint. It recorded the explanation that Ms Gee had tried to obtain evidence from her former and new GP practices after moving to Wales. The tribunal concluded that a fair trial remained possible, that striking out the response would be wholly disproportionate, and that a further order for medical evidence was the appropriate response.

The strike out application was dismissed. The tribunal held that Rule 37(1)(a) did not arise, that scandalous, unreasonable or vexatious conduct under Rule 37(1)(b) had not been established, and that although Rule 37(1)(c) was engaged by the failure to comply with the order for medical evidence, strike out was not a proportionate or fair remedy. No monetary remedy was awarded in this judgment.