Cunningham v Aurora Kendrick James Ltd

Factual and Procedural Background

This opinion concerns a renewed application for permission to appeal by the Appellant, who was formerly employed by Company A. The Appellant's original claim was filed in an Employment Tribunal against Company A, alleging disability discrimination and unfair constructive dismissal among other claims. The Employment Tribunal issued various case management orders including an “unless order” requiring the Appellant to provide certain information and witness statements by specified deadlines, failing which the claim would be struck out.

The Appellant failed to comply with the “unless order” as varied, specifically by not providing witness statements. The Employment Tribunal struck out the claim pursuant to the automatic consequences of non-compliance with the order. The Appellant appealed to the Employment Appeal Tribunal (“EAT”), which refused permission to amend the notice of appeal to challenge earlier orders related to the “unless order” and dismissed the appeal as “hopeless.” The Appellant renewed his application for permission to appeal, which is the subject of this opinion.

The procedural history includes multiple adjournments and the Appellant’s physical and mental health difficulties, which affected his ability to participate fully in the litigation. The Appellant was represented at various stages by his mother and a representative from a Citizens Advice Bureau. Despite partial revocation of the “unless order,” the Appellant ultimately failed to serve witness statements and did not seek relief from sanction at the Employment Tribunal level.

Legal Issues Presented

1. Whether the Employment Appeal Tribunal erred in refusing permission to amend the notice of appeal to challenge earlier orders related to the “unless order.”
2. Whether the Employment Tribunal was correct in striking out the Appellant’s claim as a consequence of non-compliance with the “unless order” under rule 13(2) of the Employment Tribunals Rules of Procedure.
3. Whether the Appellant was entitled to relief from sanction following the automatic strike out of his claim.
4. Whether the Appellant’s renewed application for permission to appeal should be granted.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that the strike out was wrong and unjust due to procedural irregularity and that the administration of justice required the appeal to be allowed.
• He emphasized his significant physical and mental health disabilities, asserting that his ability to comply with tribunal directions was dependent on external factors beyond his control, including NHS treatment and disclosure by Company A.
• The Appellant contended that he had complied with all tribunal orders and directions, including those in the “unless order,” and that the making of the “unless order” was inappropriate and unjust.
• He argued that the “unless order” was not an automatic strike out order and that there should have been a further decision-making process before striking out the claim.
• The Appellant also claimed that the refusal to revoke the “unless order” and the dismissal of his appeal were incorrect.

Respondent's Arguments

• Company A maintained that the Employment Tribunal’s orders, including the “unless order,” were appropriate and that the Appellant had failed to comply, justifying the strike out.
• They contended that the Appellant had not appealed the relevant earlier orders in time and had not sought relief from sanction at the tribunal level.
• Company A argued that the strike out was mandatory under rule 13(2) for non-compliance with an “unless order” and that the Appellant’s failure to serve witness statements was clear and without excuse.
• They asserted that the Appellant’s arguments about disclosure and dependency on third parties did not excuse his failure to comply with the tribunal’s directions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the procedural history and the applicable rules, particularly rule 13(2) of the Employment Tribunals Rules of Procedure, which mandates automatic strike out upon non-compliance with an “unless order.” The court agreed with the Employment Appeal Tribunal judge that there was no discretion to avoid strike out once the order was breached.

The court noted that relief from sanction is available but must be sought at the Employment Tribunal level, which the Appellant did not do. The appeal before the Employment Appeal Tribunal was limited to review of the automatic strike out, not the merits of the original “unless order” or related orders, none of which were appealed in time.

The court found that the Appellant’s failure to appeal earlier orders or seek relief from sanction was fatal to his case. The strict application of appeal time limits was justified and consistent with well-established case law. The court also rejected the Appellant’s contention that the “unless order” was not an automatic strike out order, emphasizing the clear wording of the order and the Appellant’s awareness of his rights to apply for variation or revocation.

The court further rejected the argument that the Appellant’s dependency on third parties for disclosure or treatment excused non-compliance with the requirement to serve witness statements. The Appellant’s failure to seek an extension of time or urgent orders to address disclosure was a significant procedural error.

Finally, the court acknowledged the Appellant’s health difficulties and the efforts made to accommodate him but concluded that these did not justify the procedural failings leading to strike out.

Holding and Implications

The court REFUSED PERMISSION TO APPEAL the Employment Appeal Tribunal’s decision refusing amendment of the notice of appeal and dismissing the appeal against the strike out order.

The direct effect is that the Appellant’s claim remains struck out and the appeal is conclusively dismissed. No new precedent was established. The decision underscores the strict enforcement of tribunal procedural rules, the mandatory nature of strike out orders under rule 13(2) upon non-compliance with “unless orders,” and the importance of timely appeals and applications for relief from sanction. Litigants in person are subject to the same procedural requirements as represented parties.