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Striking Out

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 Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary. ​

Is it appropriate to strike out a party's case due to the manner in which it has conducted proceedings?

In exceptional circumstances only, held the EAT (Simler P.) in Arriva London North Ltd v Maseya, particularly if any deficiency in a pleading is capable of rectification and missing documents are capable of prompt production.

Arriva's case was struck out by the employment tribunal which found it had conducted proceedings in a scandalous and unreasonable manner, pursuing a "false defence" to a disability discrimination claim and failing to comply with its duty to disclose.

On appeal, the EAT set aside the employment tribunal's judgment, but as a matter of law reiterated striking out under r.37(1)(b) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 was a weapon of last resort.

Applying Bolch v Chipman, the fundamental question for tribunals considering an order under r.37(1)(b) is whether the party's conduct has rendered a fair trial impossible.

The EAT emphasised, even where a fair trial is no longer possible, employment tribunals should still assess whether any lesser, more proportionate sanction is available. That had not occurred in the case, and that failure was also an error of law.