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Procedure: Striking Out

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When considering striking out a tribunal claim for breach of an 'Unless' Order, should a tribunal specifically consider the seriousness of a party's default, as well as any reason for the default?

Yes, held the EAT in Duncan Lewis Solicitors v Puar, upholding the Respondent's appeal against a reconsideration decision overturning a strike-out.

The claim had been struck out after the Claimant failed to comply with an 'Unless' Order requiring her to give further particulars of her claim. She successfully applied to the tribunal under rule 38(2) for reconsideration of the strike-out, stating that she had not received the tribunal's correspondence. The Respondent appealed against that reconsideration decision.

The EAT held that the tribunal's judgment overturning the strike-out was insufficiently reasoned, noting that there was no specific finding on the question of the seriousness of the Claimant's default, which was not dealt with separately from the reason for the default, and inadequate reasons for concluding that a fair trial was still possible. The case was remitted to the tribunal to reconsider the decision, as such decisions are 'intensely fact-sensitive'.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.