Mr A Fleming v Perth & Kinross Council — 2023

This was a preliminary hearing on the respondent's application to strike out Mr A Fleming's claim under Rule 37. The claimant had not attended the earlier hearing on 17 July 2023 and explained that he has dyslexia and has suffered from MS for 12 years. He also had not provided a Schedule of Loss by the deadline previously set, saying he had misunderstood what was required and that the relevant documents were with his accountants.

The respondent sought strike out mainly for non-compliance with tribunal orders, including the Schedule of Loss and documents needed for the final hearing, which was due to start on 4 September 2023. The tribunal reviewed Rule 2, Rule 37, and the authorities in HM Prison Service v Dolby and Hassan v Tesco Stores, noting that strike out involves both establishment of a ground and a discretionary stage. It accepted that there had been breaches of orders, but concluded that the breaches were not wilful or reckless and that this mattered to the exercise of discretion.

The tribunal decided that it would not be in accordance with the overriding objective to strike out the claim. It considered that the claim was not as clear as it might be, but that there was a case to argue for both sides and a core of disputed fact that should be resolved at a final hearing. The tribunal also noted that issues such as Polkey and contribution were matters for the merits hearing rather than reasons to end the claim at this stage.

The tribunal further found that the outstanding documentation should be capable of being resolved after the hearing and that the delay in relisting the final hearing was not likely to cause material forensic prejudice. It also noted that a separate note would address the outstanding Schedule of Loss and make an Unless Order, with the consequence that failure to provide an appropriate Schedule of Loss within the specified period would result in dismissal. The application for strike out was refused.