Posted by Gemma Ospedale, Partner
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Unless order not clear enough to justify strike out
In Mace v Ponders End International Limited the EAT has overturned a Tribunal decision that the claim should be struck out on the basis of an Unless Order which required the Claimant to “provide disclosure of all relevant documents”. The lack of clarity apparently was whether the intention was to require the Claimant to provide a list of documents (disclosure) or actual copies (inspection). The Claimant lodged a claim of unfair dismissal and the initial case management orders required a list of documents to sent, with copies if needed. The Respondent asked the Tribunal to provide an Unless Order to the Claimant since the Claimant had failed to provide his list of documents. The Tribunal duly did so, directing that the Claimant should provide “disclosure of all relevant documents” failing which his claim would be struck out. The Claimant sent some documents to the Tribunal but none to the Respondent. When the Judge saw the file the day before the Unless Order expired she sent an urgent message to the Claimant saying “he must get a copy of everything he has” to the Respondent by the following day. Since the Claimant neglected to do so, the claim was struck out.
On appeal to the EAT, it noted that an Unless Order must clearly identify what was needed for compliance. This Order did not indicate the documents which might be relevant or to whom disclosure should be made. The EAT considered that the intention of the Tribunal was unclear and rejected the Respondent’s argument that the Unless Order made it obvious what was required of the Claimant.
The appeal was therefore allowed and the EAT gave some guidance on good practice for drafting Orders for disclosure and inspection and to specifically indicate what the party concerned is actually required to do i.e. whether serving a list of documents or actual documents and whether it is disclosure i.e. a list, or inspection i.e. copies, which is intended.
The Respondent must have thought it was their lucky day to get the case struck out so quickly!
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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