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The power of strike out is used sparingly by the courts. It is a last resort used only for plain and obvious cases. Below is one example where the application by the AA failed in employment matters.

Cases involving issues where the law is in a state of development are not suitable for strike out applications BUT where the issues involve novel causes of action and defences, the statements of case may well be vulnerable to strike out (i.e. get rid of the absurd).

Strike out applications on the ground of abuse of process will not automatically be granted if the abuse can be dealt with in another way.

An application for strike out on the ground of non-compliance with or breach of a rule, practice direction or court order will not be granted if other remedies are available, such as costs penalties, payments into court and interest at a penalty rate or conversely, loss of interest. Only in the most serious cases of non-compliance will strike out be suitable.

There are other mechanisms more suitable than strike out for dealing with what are believed to be defective cases and unsuccessful applications for strike out will result in wasted costs (the applicant is likely to have to bear both its own costs and those of its opponent).

Recent example that has been set aside (dismissed)  is: Dambagolla v Automobile Association Ltd UKEAT/0192/15/RN

‘The Claimant, who had a disability recognised by the Respondent (back pain), worked for the Respondent as an AA Patrolman from 1988 until 2012, when he was dismissed, allegedly for gross misconduct. The Claimant issued proceedings for unfair dismissal, direct and indirect disability discrimination, discrimination arising from a disability, victimisation and harassment. The Respondent subsequently made an application to strike out the disability discrimination claims or, in the alternative, for a deposit order, on the basis that the claims had no reasonable prospect of success or little reasonable prospect of success respectively. An Employment Judge heard the application and duly dismissed all the Claimant’s discrimination claims, leaving just the unfair dismissal claim outstanding. The Claimant appealed, broadly on the grounds that the Employment Judge had failed to identify the relevant law, failed to set out the legal test for strike-out and had mistakenly shifted the burden onto the Claimant.

The EAT allowed the appeal. The Employment Judge had erred in law in that he had failed to set out the test for strike-out and had failed to make it explicit that it was for the Respondent (and not the Claimant) to satisfy the burden of demonstrating that the case had no reasonable prospect of success. The Employment Judge further failed to differentiate sufficiently between a finding that a claim is out of time (where the burden rests on the Claimant) and a finding of no reasonable prospect of success (where the burden rests on the Respondent). There were clearly triable issues of fact which required determination at a full hearing. The strike-out order was accordingly set aside and the case remitted for full hearing.’

Commentary:

In the above case the EAT (Mr Justice Kerr, sitting alone) simply decided [56] “In my view it was not rational to overlook that part of the Claimant’s case when deciding the strike-out application…….. I have come to the conclusion that the decision cannot stand. I am quite satisfied that the strike-out application could not properly have succeeded and, it seems to me, that it falls within limb (b) of Laws LJ’s formulation in Jafri v Lincoln College [2014] ICR 920 .

That is short for a waste of time over nothing (and at the employers cost)!

Source: Thanks to Employment cases update for alerting me to this case: http://www.employmentcasesupdate.co.uk/site.aspx?i=ho0

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