Rad Kohanzad and Andrew Carter recently appeared in the Court of Appeal in the matter of Phipps v Priory Education Services Ltd, which will clarify when Employment Tribunals should grant reconsideration of strike out judgments.
Ms Phipps brought claims for disability discrimination and instructed One Assist Legal Services to run her claim. Her representative, Mr Johnstone, did very little to advance the claim. Shortly before the 4 day final hearing, Mr Johnstone applied to vacate. In doing so, he told the Tribunal he had an infection of the brain and was unable to attend. The ET later found Mr Johnston had been dishonest and had misled the ET into postponing the hearing.
When Mr Johnstone repeatedly failed to provide medical information, the matter was struck out. The first Ms Phipps knew of what was going on was when she received the strike out order in the mail. She instructed new solicitors who applied for reconsideration of the strike out order. Reconsideration was refused in the ET and by the EAT (Griffiths J) because failings of a party’s representative usually will not constitute grounds of review under Lindsay v Ironsides Ray and Vials  ICR 381.
The arguments in the Court of Appeal focus on how Lindsay applies where the party has not had a fair opportunity to present their case. The arguments further deal with attribution to a party of a representative’s dishonest conduct in circumstances where the party has no knowledge of the dishonesty.
The matter is now before the Court of Appeal and judgment is reserved.
Andrew Carter - 18.05.2023
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