Does an 'unless' order always mean that non-compliance leads to an entire case to be struck out?
Not unless that is what the order says, held the EAT in Ijomah v Notts Healthcare.
After two preliminary hearings, the Claimant (Dr Ijomah) was made the subject of an 'unless' order at the third preliminary hearing. The terms of the order were that unless the Claimant complied with earlier orders his claim would be struck out. At another preliminary hearing, an Employment Judge decided that the Claimant had not complied with the 'unless' order and that his claims were therefore automatically struck out.
The 'unless' order in this case was that, unless the Claimant complied with an order to provide further information, the claims "or such of them as any non-compliance relates" would be struck out. The Claimant's appeal was allowed in part, as the 'unless' order was not properly interpreted by the Employment Judge. They had decided any non-compliance applied to the whole case rather than individual claims. Of more importance is the guidance that HHJ Auerbach gave in relation to 'unless' orders. He said:
"An Unless Order should not be a punitive instrument, and, in particular, should not have the effect of depriving a party of a claim (or defence) which is properly pleaded and perfectly capable of being fairly litigated. If, nevertheless, an Unless Order has been made which, unambiguously, does have that effect, tying the hands of the Judge who considers the compliance issue, it may be susceptible to an application for relief from sanctions. But an Order which is ambiguous should be construed so far as possible to eliminate or minimise any such effect."
Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.