When should a claim be struck out for material non-compliance with an Unless Order?
When qualitatively there has not been material compliance, held the EAT in Uwhubetine v NHS Commissioning Board England.
The tribunal should not be concerned with whether it was right to make the Unless Order in the terms made, but whether there has been material non-compliance with those terms.
The question is a qualitative rather than a quantitative one. When the Unless Order requires the giving of further particulars, the benchmark is whether the further particulars have sufficiently enabled the other party to know the case they have to meet.
Tribunals must take care in how Unless Orders are phrased. If there is an ambiguity the approach should be facilitative rather than punitive, and any ambiguity should be resolved in the favour of the party required to comply. What the tribunal cannot do is redraft the order or require it to have a meaning that it will not bear, though its words should of course be construed in context.
Where a tribunal requires a Scott Schedule, it should be prescriptive as to its completion. It is for a Judge considering, or making, an Unless Order to determine what the scope of any such order should be, both in terms of what substantive requirements it imposes and in terms of how the order is framed with respect to the consequences of non-compliance.
Thanks to Harry Wiltshire of Broadway House Chambers for preparing this case summary.