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Strike Outs

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Yet another EAT judgment overturning a chairman's decision to strike out a claim ...

This case is authority for the proposition that a chairman is under an obligation to consider an adjournment (as an alternative to strike-out), even if the parties do not raise the possibility of an adjournment themselves.

All six Claimants were in breach of an order to exchange witness statements two weeks before the hearing (the strike-out application was heard one week before the hearing). Further, three of the six Claimants had failed to comply with an order that they provide a Schedule of Loss (the other three had provided a Schedule, but done so later than the date specified in the Order).

The chairman held that it was not possible to hold a fair trial the following week and struck out the claims. Neither side had raised the possibility of an adjournment.

The EAT (Cox J.) held that it was incumbent on the chairman to consider an adjournment, and to canvass the possibility of adjourning with the parties. It was an error of law to consider only "a fixed moment of fairness" (para. 23). She allowed the appeal and reinstated the claims.

Ridsill v Smith & Nephew Medical