Can my case be struck out because of an error by my legal representative? It might.

June 20th, 2023


The Court of Appeal has ruled in Phipps v Priory Education Services Ltd that the Employment Tribunal got it wrong when they refused a Claimant’s application for reconsideration of a decision to strike out her claim.

The facts of this case are (thankfully) somewhat exceptional and make uncomfortable reading I suspect for most lawyers.

Mrs Phipps lodged an Employment Tribunal claim. A day prior to the hearing the Claimant’s legal representative applied for an adjournment on the ground that they (the representative)  had a medical emergency. The Tribunal granted the adjournment but ordered the representative to provide medical evidence by a specified date in support of the application that had been made and their inability to attend the tribunal. The representative failed to comply with the order. As if that were not bad enough, the representative then failed to respond to not one, but three separate strike out warnings. No surprise then that the claim was eventually struck out for non-compliance.

The Respondent subsequently applied for a wasted costs order against the Claimant and the representative’s employer. The Claimant applied for reconsideration of the judgment striking out her claim on the basis that she had not known about the hearing, the application to postpone the hearing, the tribunal order and strike out warnings. She only became aware of the situation when she received the judgment striking out her claim. That must have made one hell of an uncomfortable telephone conversation for someone!

The Tribunal declined to make an application for wasted costs against the Claimant accepting her lack of culpability. However, it rejected her application for reconsideration of the strike out order on the basis that failings of a party’s legal representative would not normally give rise to valid grounds for review of a decision. The EAT agreed.

However, the Court of Appeal took a more sympathetic approach and allowed the appeal and revoked the order for strike out. Whilst agreeing that failings of a party’s legal representative would not generally constitute grounds for review this is not a blanket rule.  The Court of Appeal recognised that in this case the Claimant had been denied an opportunity to even present her case due entirely to the very significant shortcomings of her legal representative and that it was appropriate and in line with the overriding objective to deal with it by way of reconsideration. 

An interesting case on the facts but it seems to me that the Court of Appeal’s decision is the correct one: it would have been unfair to deny the Claimant her opportunity to bring her claim due to the conduct of her legal representative. She’s lucky though; we regularly see claimants punished for the mistakes of their legal reps. The moral of the tale? Be careful who you instruct! 

This blog was written by Kate Lea, Senior Solicitor at didlaw. 

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