Are the 'significant' failings of a Claimant's representative grounds for a reconsideration of a Strike Out Order?
Yes, on the facts of this case, held the Court of Appeal in the case of Phipps v Priory Education Services Ltd.
A day prior to the tribunal hearing the Claimant’s legal representative made an application for an adjournment on the ground that they (the representative) had a medical emergency. The tribunal granted the adjournment but ordered the representative to provide medical evidence in support of the application. The representative failed to comply with the order and proceeded to ignore three strike-out warnings. The claim was eventually struck out for non-compliance.
The Respondent applied for a wasted costs order, which was not granted. The Claimant applied for a reconsideration of the judgment striking out her claim. The application was rejected on the basis that failings of a party’s legal representative would not normally give rise to valid grounds for review of a decision. The EAT agreed.
However, the Court of Appeal allowed the appeal, revoking the order for strike out. Whilst agreeing that failings of a party’s legal representative would not generally constitute grounds for review, it was not a blanket rule. It recognised that in this particular case the prospects of the Claimant seeking an alternative remedy against her representative (for various reasons) was ‘fanciful.’ The Claimant had been denied an opportunity to present her case due entirely to the ‘significant’ shortcomings of her representative and that it was therefore appropriate and in line with the overriding objective to deal with it by way of reconsideration.
In so finding, the Court of Appeal recognised the practical difficulties when pursuing a claim of professional negligence against a legal representative, noting the particular issues surrounding lack of funding and evidential issues.
The Court of Appeal in its judgment provided a sensible footnote recommending that the President of the Employment Tribunal consider a modest change in practice that would require a strike-out warning be sent to the party personally as well as their legal representative.
Thanks to Kate Lea of didlaw for preparing this case summary.