The unanimous decision in Phipps v Priory Education Services [2023] EWCA Civ 652 that a strike-out order can be reconsidered revisits the rule established nearly three decades ago in Lindsay v Ironsides Ray and Vials [1994] ICR 384.
In Phipps, Lynn Phipps instructed One Assist Legal Services, a claims management company, to represent her in a disability discrimination claim. Her representative, Christopher Johnstone, applied for an adjournment one working day before the four-day final hearing on the basis that he had been in hospital with a brain infection. Warnings were issued after Johnstone failed to provide the required medical evidence, and the case was struck out.
Phipps, however, was not informed of this until she received the final strike-out order in the post. The tribunal refused to reconsider the strike out order because of Lindsay.
Granting the appeal, Lord Justice Bean, in a footnote to the main judgment, invites the president of employment tribunals to amend r 37(2) of the Employment Tribunals Rules of Procedure 2013 to require pre-strike-out warning letters to be sent to the party personally, at whatever email or postal address has been provided, as well as to the representative.
‘Had that been done when any of the three warning letters were sent to Mr Johnstone but not to the claimant in 2018, this case would almost certainly have taken a very different course,’ Bean LJ said.
Bean LJ also highlighted the ‘unfortunate’ delays to the case, partly due to the COVID-19 pandemic and to a judgment not being transcribed for a whole year after being delivered.
Granting Phipps’ appeal, Bean LJ said: ‘The general rule that a party to tribunal proceedings cannot rely on the default of her representative as the basis for an application for reconsideration is not a blanket rule.
‘In the exceptional circumstance where a party has not had a fair opportunity to present her case, that is a significant procedural shortcoming which may be appropriately dealt with by reconsideration.’
Bean LJ also highlighted the ‘alternative remedy’ aspect of Lindsay, that the claimant can pursue an alternative remedy against her representative, as ‘wholly unrealistic in a case like the present one’. It was not known whether the claims management company was regulated by anyone or had indemnity insurance, and the option of finding a lawyer to pursue a claim on a conditional fee basis against Johnstone was ‘a figment of the imagination’.
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