The Court of Appeal in Blockbuster Entertainment Ltd v James has held that it will be extremely unusual and only in exceptional circumstances that a claim that has reached the point of a full tribunal hearing will be struck out, even where the claimant has behaved unreasonably.
 
Rule 18 of the employment tribunal rules provides that a claim may be struck out by a tribunal of its own motion or on the application of either party for one of the following grounds:
 

  • All or part of it is scandalous or vexatious or has no reasonable prospect of success;
  • The manner in which proceedings have been conducted by or on behalf of a party has been scandalous, unreasonable or vexatious;
  • It has not been actively pursued;
  • There has been non-compliance with a tribunal order or a practice direction;
  • A tribunal considers that it is no longer possible to have a fair hearing in the proceedings.

In 2004 Mr James had raised claims of race discrimination, harassment and victimisation against his employer and the tribunal ordered him to provide further and better particulars for his claim. This request was made so that his employer could understand the nature of the claim being made against them and to be able to defend it accordingly. Mr James failed to provide the further and better particulars within the stipulated timeframe and only responded some three months after the deadline had expired.
 
During a subsequent case management discussion, the tribunal made further orders requiring the parties to exchange lists of documents and witness statements by certain dates. Mr James again failed to comply with the terms of the orders. On the first day of the tribunal hearing, Blockbuster made an application to have Mr James' claims struck out on the basis that he had failed to comply with a number of orders and directions of the tribunal. The tribunal found that Mr James' behaviour had been unreasonable and that a fair hearing would not be possible given the nature of Mr James' behaviour.
 
Mr James appealed to the EAT who overturned the decision on the basis that the tribunal had failed to understand the extent to which Mr James had complied with the tribunal's orders i.e. he had produced a response, albeit late. Blockbuster appealed to the Court of Appeal and the court dismissed that appeal and re-iterated that it would take something very unusual to justify striking out a claim that has reached the first day of a hearing for procedural grounds.
 
The Court of Appeal seem to have been primarily concerned with the general concept of access to justice for all rather than the operation of the tribunal rules. Employers should not delay in making an application to strike out a claim until the first day of a hearing.

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