Mr J P Stothard v Erskine Hospital — 2019

At this preliminary hearing the tribunal considered the claimant's application to strike out the respondent's response on the basis of delay and non-compliance with case management directions. The tribunal accepted that there had been a lengthy delay in exchanging productions, but noted that the claimant had already received most of the respondent's documents through the subject access request, had later received the joint bundle for the hearing, and had not said that the delay prevented him from preparing his case or that a fair hearing was no longer possible.

Applying rule 37 and the overriding objective, the tribunal held that the responsibility for missing the 12 April deadline appeared to lie with both sides and that the non-compliance did not justify the draconian remedy of strike out. It found that a fair hearing would still be possible, including because the claimant now had two weeks to familiarise himself with the documents, and it therefore refused the strike-out application.

The respondent then sought an award of expenses, relying on rule 76 and saying the claimant had acted unreasonably in bringing the strike-out application. The tribunal accepted that the claimant was a party litigant who had done some research, but found that he was entitled to raise the issue given the respondent's failure to comply strictly with the order and the time that had passed without explanation. It decided that the claimant's application was not unreasonable in the rule 76 sense and dismissed the request for expenses, making no monetary award.