St Albans Girls' School & Anorl v Neary

This is an appeal from the decision of the Employment Appeal Tribunal (EAT) brought with the permission of Pill LJ.

On 28 February 2007, Mr Anthony Neary commenced a claim in the employment tribunal (ET) against The Governing Body of St Albans Girls School (the school) and Hertfordshire County Council (the Council) alleging discrimination on the grounds of disability and sexual orientation. He also alleged victimisation. The claims were resisted and further particulars of the ET1 were informally requested. Mr Neary did not provide the particulars and, at a case management discussion (CMD) held on 31 July 2007 he was ordered to do so by 14 August. He failed to do so and on 5 September 2007, the ET ordered that, unless the particulars were provided by 26 September, the claim would be automatically struck out without further order.

The particulars were not provided but, on 26 September, before the claim had been automatically struck out, Mr Neary wrote to the ET by fax saying that he knew about the unless order and knew that that day was the deadline for compliance with it but said that he did not know which order or which parts of the order had to be complied with by that day. He did not supply the particulars and the claim stood struck out for non-compliance.

The ET treated Mr Neary’s fax as an application for a review. On 8 October Employment Judge Mahoney (the EJ) refused the application after consideration of the papers. On 25 October, Mr Neary asked for written reasons which were refused.

HH Judge Clark allowed Mr Neary’s appeal to the EAT. He held first that the remedy of review was available to a claimant whose claim had been struck out automatically for failure to comply with an order of the tribunal. That decision is not wholly free from difficulty but it is not challenged in this Court and I shall say no more about it. The EAT proceeded and this Court is proceeding likewise on the basis that the remedy of review was available in respect of the effect of non-compliance with the unless order, namely automatic strike out. Second, HH Judge Clark held that, before exercising his discretion to refuse the application for a review, it was incumbent upon the EJ expressly to consider all the factors listed in Civil Procedure Rule (CPR) 3.9(1) which deals with relief from sanctions in civil cases. This he had not done. Had the EJ done so, said Judge Clark, he would have been bound to grant the application for a review. The case was remitted for a review hearing by a different employment judge.

The school and the Council (who have throughout been jointly represented) now appeal that decision, contending that there was no obligation on the EJ to consider the list of factors in CPR 3.9(1). The judge’s duty was to consider all the relevant factors; this he had done. Further, HH Judge Clark had failed to consider all the facts and information available to the EJ. Had he done so and had he not required express consideration of all the CPR 3.9(1) factors, he would have accepted that the EJ had not erred in the exercise of his discretion.

The respondent seeks to uphold the decision of the EAT.

Because one of the criticisms made of HH Judge Clark is that he did not adequately consider all the relevant information available to the EJ, it will be necessary for me to set out the facts in some detail. However, I need not go into any detail of the allegations made in the ET1. It is accepted by Mr Martin Fodder, counsel for Mr Neary, that the request for further particulars of the ET1 was properly made. Save where I say to the contrary, the following account is taken from the papers which were available to the EJ at the time he refused the application for a review.

Mr Neary is a graduate mathematics teacher. In February 2007, the school was considering whether to appoint him as a supply teacher. Some difficulty arose about his credentials and, in the event, he was not appointed. He was aggrieved at what had occurred and, acting in person, he lodged a discrimination claim on 27 February 2007. The ET1 was accompanied by a typed statement of his case. Mr Neary had some prior experience of making a claim in the ET because he had previously brought a claim alleging unfair dismissal and disability discrimination against another school.

On 30 March 2007, the appellants filed a joint response which included a detailed rebuttal of the allegations. On 9 July 2007, their solicitor sent Mr Neary an email request for further and better particulars of the claim (dated 5 July) and asked that they be provided by 23 July 2007. They were not provided and an application for them was made at a CMD held by Employment Judge Griffiths on 31 July. Mr Neary attended, in person, on that occasion. He already had a copy of the request for further particulars and it appears that, either before the hearing or at it, he was provided with a draft of the orders sought by the Council. (I mention that now although it is not clear to me whether Employment Judge Mahoney was aware of that when he made the decision impugned in this appeal.) At the end of the CMD, Mr Griffiths made a number of orders, including an order that all the particulars save those at paragraphs 4 and 6 of the request should be provided by 14 August 2007.

The ET did not send a perfected order to the parties until 22 August, after the expiry of time for compliance with the order for particulars. That was not good practice; a written order should be sent out promptly, especially where time limits for compliance are short and especially where one of the parties is unrepresented. However, the order was effective from 31 July.

The appellants’ solicitor sent an email reminder to Mr Neary on 13 August but he did not provide the particulars in the time allowed. So, on 16 August, the solicitor wrote informing the ET of the non-compliance and inviting it to issue an unless order pursuant to Rule 13(2) of the Employment Tribunal (Rules of Procedure) Regulations 2006 (the ET Rules). The ET was asked to order that, unless the particulars were provided by 24 August, the claim would be automatically struck out. That letter also requested that there should be a pre-hearing review at which various issues would be considered, including the striking out of the claim as having no reasonable prospect of success. As required by the ET Rules, that letter was copied to Mr Neary with an instruction that, if he wished to object to the application, he must write to the tribunal within 7 days explaining the reasons for his objection.

No objection was communicated to the tribunal within 7 days or at all before 5 September, the date on which the appellants’ application was considered by the EJ. It should be noted that, in the meantime, on 22 August, the written order from the CMD of 31 July had been sent to the parties. That order recorded that the further and better particulars requested (save for those in paragraphs 4 and 6) were to be provided by 14 August and that a copy of the particulars had been handed to the claimant at the hearing. That was a further copy of the particulars, in addition to the copy he had received prior to the hearing. We have been told and it does not appear to be disputed that, on that second copy, paragraphs 4 and 6 were deleted.

On 5 September, the EJ considered the appellants’ application, in the absence of the parties, as the ET Rules permit. His order first recited the terms of the order which had been made on 31 July and stated that, under rule 10(4) (of the ET Rules) Mr Neary could apply to the tribunal for that order to be varied or revoked. There followed an unless order under rule 13(2) to the effect that, unless the particulars as ordered were provided by 26 September, the claim would be struck out without further consideration of the proceedings or the need to give notice or to hold a pre-hearing review or hearing. That order was sent to Mr Neary who, by this time, was living in Germany. It appears that it was sent by ordinary post on 5 September and not by email.

Mr Neary did not provide the particulars but, on Wednesday 26 September, he faxed and emailed a letter to the tribunal. There is no need to set it out in full. Stripped of the offensive comments, of which there were several, I can summarise the parts relevant to the present appeal as follows. Mr Neary claimed that he had ‘just spent several hours searching his flat for evidence that he had received a clean copy’ of the order made on 31 July (the written order dated 22 August). He did not assert that he had not received the written order, only that he could not find it.

He said that the handwritten notes he had made at the CMD were ‘extremely confused’ and he had been relying on the receipt of ‘a clean and clear set of instructions’. He protested that the CMD itself had been confusing because the Chairman had changed his mind 5 minutes before the end of the meeting and had altered the deadlines for compliance with the various orders. He was in ‘total confusion’ and was of the view that certain deadlines were ‘surely already missed’ and ‘the whole thing should be reset’. He then continued:

“I did get an Unless Order a week or so ago telling me that the 26^th i.e. today was the day agreed for compliance with the Order. But WHAT Order? And which parts of it are to be complied with by today?”

Mr Neary then promised to continue looking for the ‘original order if it ever arrived physically’. He explained that he could not think where he might have put it ‘for safety’s sake’ and said that its arrival would have coincided with the start of the school term which was a ‘chaotic’ time. He asked to be sent an electronic copy. He concluded this aspect of his letter by saying:

“I promise to comply by the end of the coming weekend ONCE I HAVE IT. I am now off sick until next Monday and am starting to feel a little better.”

It does not appear that the tribunal acceded to the request to send Mr Neary an electronic copy of the order of 22 August.

On 28 September, the appellants’ solicitor informed the tribunal that the particulars had not been provided and invited it to confirm that the claim had been automatically struck out.

On Monday 8 October 2007, the matter was considered by the EJ. Instead of merely confirming that the claim had been automatically struck out, he purported to make an order striking it out. That was an error and was of no effect. However, the claim had already been struck out automatically. The EJ treated Mr Neary’s letter of 26 September as an application for a review. He refused the application. The letter sent to the parties recorded that Mr Mahoney had directed the writer to say:

“The Claimant’s application for a review of the strike out order is refused. The Claimant admits receiving the Tribunal’s Unless Order dated 5 September, which clearly states at paragraph 2 the order to be complied with. Further the Claimant was present when the initial order was made. In those circumstances, the failure of the Claimant to comply justified striking out his claim.”

Mr Neary asked for written reasons for this order but the EJ declined to provide further reasons, saying that the reasons for the order had already been supplied.

Mr Neary appealed to the EAT and the matter came before Underhill J on ‘the sift’ under Rule 3(7) of the Employment Appeal Tribunal Rules (amended) 2004 (the EAT rules). The grounds of appeal, drafted by Mr Neary himself, were somewhat diffuse. They included complaints about the conduct of the CMD, the lateness of the service of the written order and the alleged lack of clarity of the unless order. There was also criticism of the reasons given for the order of 8 October and the refusal to provide further reasons. The grounds did not include any allegation that the EJ had failed to consider all relevant factors when reaching his decision on 8 October. Mr Neary did not include in the appeal papers several relevant documents but he did enclose a copy of the draft order he had used at the CMD on 31 July with his handwritten comments and endorsements on it. This document showed that he had clearly marked that the date for compliance with the order for further particulars was 14 August. It could now be seen that Mr Neary could not have been confused as to the date by which he had to comply.

In long and careful written decision, Underhill J refused to allow the appeal to proceed. When dealing with the complaint about the lack of adequate reasons for the decision of 8 October, Underhill J observed:

“The reasons are short, but that is because the point could not be simpler: the claim was struck out because the Appellant failed to comply with a clear order even after an explicit warning of the consequences of such failure.”

Mr Neary asked for an oral hearing under Rule 3(10) of the EAT rules. At that hearing, he was represented by counsel, Mr Fodder. Permission to amend the grounds (by the substitution of new grounds) was granted and the appeal was allowed to proceed. For the sake of completeness, I should mention that the further and better particulars were provided by Mr Neary very shortly before the hearing of the appeal in the EAT in October 2008. Accordingly, they were eventually supplied well over a year after they had first been ordered.

The new grounds complained that the EJ had purported to strike out the claim on 8 October pursuant to Rule 18(7) of the ET rules when such procedure was not available to him. Of course, as I have already said, that complaint was justified. That order was a nullity. However, the real appeal lay against the EJ’s decision to refuse an application for a review. In respect of that decision it was argued that the EJ should have taken into account the factors listed in CPR 3.9(1).

It is convenient at this stage to set out CPR 3.9. Part 3 deals with the Court’s case management powers. Rule 3.9 is headed ‘Relief from Sanctions’. It provides:

(1)

On an application for relief from any sanction imposed for a failure to comply with any rules, practice direction or court order the court will consider all the circumstances including –

(a)

the interests of the administration of justice;

(b)

whether the application for relief has been made promptly;

(c)

whether the failure to comply was intentional;

(d)

whether there is a good explanation for the failure;

(e)

the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;

(f)

whether the failure to comply was caused by the party or his legal representative;

(g)

whether the trial date or the likely date can still be met if relief is granted;

(h)

the effect which the failure to comply had on each party; and

(i)

the effect which the granting of relief would have on each party;

After reviewing various authorities to which I will come in due course, HH Judge Clark concluded, at paragraph 34 of his judgment, that, in considering whether to grant relief from any sanction including an unless order, authority required that the employment judge must consider each CPR 3.9(1) factor. He said:

“Whilst it is necessary for the judge to consciously consider all nine factors in CPR 3.9(1), if in his reasons he omits to mention one or more of the nine factors he will only fall into error if the omission is relevant to the facts of the particular case. If it has no application he will not be corrected on appeal simply because he has failed to mention all those factors. That accords with the well-established principles for interference on appeal with a case management decision. In this jurisdiction the approach based on Wednesbury principles was formulated by Arnold J in Bastick v James Lane [1979] ICR 778, approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908; has the Employment Tribunal taken into account an irrelevant factor or failed to take into account a relevant factor or otherwise reached a perverse decision?”

Judge Clark then concluded that the EJ had not considered all the nine factors or even those which were relevant to his decision. He had omitted to consider factor (c) (Mr Neary’s explanation for his non-compliance, namely that he was confused), factor (d) (whether Mr Neary had consciously intended to breach the order) and he had not considered factors the effect which the failure to comply had had on each party or the effect which the grant of relief would have (factors (h) and (i)). All of those were, in Judge Clark’s view, material omissions. The EJ’s decision could not stand.

For the school and the Council, Judge Clark was urged to exercise his own discretion, taking the CPR 3.9(1) factors into account, and to conclude that there were no grounds for a review or that there was no reasonable prospect that a review would succeed. Also he was invited to hold that the EJ’s decision had been unarguably correct. He declined to accept those submissions, saying that, before the automatic strike-out was permitted to stand, there would have to be an oral review hearing. He remitted the case to another employment judge.

Mr Patrick Green for the appellants submitted that Judge Clark had been wrong to hold that the EJ had been obliged expressly to consider each of the CPR 3.9(1) factors. He pointed out that CPR 3.9 has not been incorporated into the practice of the employment tribunal by amendment of the rules. In contrast, the overriding objective of the CPR, as set out in CPR 1.1 has been so incorporated by Regulation 3 of the Employment Tribunals (Constitution and Rules etc) Regulations 2004. That provides that the overriding objective of the regulations and the ET Rules is to enable tribunals and chairmen to deal with cases justly. It sets out what is meant by that in substantially the same terms as are found in CPR 1.1 which are now well known.

Mr Green submitted that, given that the overriding objective has been incorporated into the ET rules, it must be inferred that Parliament had made a conscious decision not to incorporate CPR 3.9.

Mr Green also submitted that Judge Clark had been wrong to conclude that judicial authority had established that employment judges were required expressly to consider the CPR 3.9(1) factors. When properly considered, the effect of authority was that the factors might be found useful as a checklist but there was no obligation on a judge to consider all of them. The judge’s duty was that which always applies to the exercise of a judicial discretion, namely to consider all the relevant factors. His decision should only be impeached on appeal if he has failed to consider a relevant factor, considered an irrelevant factor or has otherwise reached a perverse decision.

Mr Green argued that it would be most undesirable if the suggestion that the CPR 3.9(1) factors might be useful as a checklist were elevated to a legal requirement that they be given express consideration. Not only would interlocutory proceedings in the ET become more formal and complex than they were intended to be but the discretion of an employment judge would be much more readily challenged. The jurisdiction of the EAT, which is limited to the correction of errors of law, would more readily be invoked because all an appellant would have to do would be to show that one or more arguably relevant CPR3.9(1) factor had not been expressly mentioned.

Finally, Mr Green demonstrated to us that HH Judge Clark’s decision in the instant case had already been widely disseminated to employment judges and has been described as a cornerstone of what is required of employment judges on a review application. If the decision were wrong, this Court should make the position clear as soon as possible.

Mr Fodder for Mr Neary submitted that Judge Clark had been correct in all aspects of his decision.

Notwithstanding that CPR 3.9 has not been incorporated into the ET Rules, there has built up a body of authority in the EAT to the effect that, when considering any discretionary decision analogous to a relief from sanction, an employment judge must give active consideration to all the nine factors mentioned in that rule. Judge Clark reviewed that body of authority. He himself had played a part in its development. It is necessary for this court to look again at the genesis and development of the line of cases which led Judge Clark to his conclusion.

In Goldman Sachs v Montali [2002] ICR 1251, in a context unrelated to the relief from a sanction, Judge Clark made a general observation that ETs should follow the same principles as those spelt out in the Civil Procedure Rules.

A similar submission was made in Maresca v Motor Insurance Repair Research Centre [2005] ICR 197. There an employment judge had struck out a claim for non-compliance with an order for disclosure. Two days later, having complied fully, the claimant applied for a review. The employment judge summarily dismissed the application. On appeal to the EAT, Rimer J, as he then was, allowed the appeal. He said that employment tribunals should exercise their powers in accordance with the same principles as apply under the CPR. In a case involving an application to review a sanction, the employment judge should have had regard to the factors set out in CPR 3.9(1). However, he stressed that that did not mean that CPR 3.9 should be regarded as being impliedly incorporated into the ET Rules; it was not. The EAT allowed the appeal in that case because the judge had failed to have regard to the fact that the order had already been complied with at the time when he applied for the review. The hearing date would not have been affected.

The dictum of Rimer J in Maresca was followed in a number of cases in the EAT. At least two of them were decisions of Judge Clark. The proposition that judges should have regard to the CPR 3.9 factors seems to have metamorphosed, as the cases came along, into a positive requirement that each and every one be discussed. In BSM v Fowler (UKEAT/0059/06/ZT 24 February 2006) at paragraph 11, Judge Clark cited Maresca and said that Rimer J had said that the court ‘ought to take into account’ all the CPR 3.9(1) factors on an application for relief from sanctions. In Royal Bank of Scotland v Soper (UKEAT/0080/07/LA 1 May 2007), Cox J allowed an appeal against the refusal of a review application on the ground that the Chairman had not ‘directed himself as to the wider considerations required when exercising his powers of review’. These were the nine CPR 3.9(1) factors. In McGuire v Centrewest London Buses Ltd (UKEAT/0576/06/DM 4 May 2007) an appeal from a chairman’s refusal to grant a review of a strike out order following a failure to comply with an order for disclosure, the Chairman did consider the CPR 3.9(1) factors but not to the satisfaction of the EAT. Without going into the detail of that judgment, it is apparent that Judge Clark was of the view that explicit consideration and clear findings of fact were required in respect of each of the nine factors. In addition, the chairman had to demonstrate that he or she had actively considered the proportionality of the strike-out order and the availability of some other less draconian measure.

In Tisson v Telewest Communications Group Ltd (UKEAT/060/07/LA 19 February 2008) the employment judge’s reasons for refusing a review of a strike-out order ran to 8 pages; she explicitly considered each of the nine factors and made detailed findings of fact. The attempt to impugn the exercise of her discretion failed. In the EAT, Beatson J considered not only the line of authority I have mentioned stemming from Maresca but also a line of authority relating to the making of strike-out orders. These included Blockbuster Entertainment Ltd v James [2006] in which Sedley LJ said that, when making a strike-out order, there were two cardinal conditions at least one of which must be met. Either the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps or it has made a fair trial impossible. If one of these conditions is met, the court must then consider whether striking out is a proportionate response. This was an employment case. However, Sedley LJ observed that the principles to be followed were more fully set out in Arrow Nominees Inc & Another v Blackledge [2000] 2 BCLC 167 (CA), which was a High Court case to which the CPR applied. Beatson J observed that, although not spelled out in Blockbuster, the Court of Appeal was implicitly saying that CPR principles should be applied in the employment jurisdiction.

From the line of authority descending from Maresca, it appears to me that, unless an employment judge gives detailed explicit consideration to all relevant factors including the nine factors and then expressly considers the proportionality of the sanction imposed, his or her decision is likely to be upset on appeal to the EAT.

However, this line of authority was developed without consideration of an important decision of the Court of Appeal, London Borough of Southwark v Afolabi [2003] IRLR. That decision was not cited to Rimer J in Maresca or indeed in any of the cases in which Maresca was followed. It was, however, considered by Judge Clark in the instant case. Afolabi was not concerned with the correct approach to the relief from sanctions. However, the decision is of direct relevance to the issue of whether a set of requirements imposed by Parliament in a particular context should be imported as a requirement into a different context within the jurisdiction of the employment tribunal.

Afolabi was concerned with the approach to when it is just and equitable to extend time for lodging a race discrimination claim. It had been submitted that the issue was analogous to the question of whether discretion under section 33 of the Limitation Act 1980 should be exercised in a case of personal injury or death. The argument was that the ET should have considered all the factors set out in section 33(3). Peter Gibson LJ, with whom Sedley and Rix LJJ agreed on this issue, rejected that submission and said, at paragraph 33 of his judgment:

“Nor do I accept that the ET erred in not going through the matters listed in s. 33(3) of the 1980 Act. Parliament limited the requirement to consider those matters to actions relating to personal injuries and death. Whilst I do not doubt the utility of considering such a checklist (or that in CPR 3.9(1)) in many cases, I do not think it can be elevated into a requirement on the ET to go through such a list in every case, provided of course that no significant factor has been left out of account by the ET in exercising its discretion.”

In the instant case, after citing this passage from Afolabi and after considering further authorities, Judge Clark opined that there was no real conflict between that and the line of authority flowing from Maresca.

These further authorities comprised a line of Court of Appeal decisions arising out of High Court or County Court claims to which CPR certainly applied. In Bansal v Cheema (CCRTI 99/1245/B1 2 March 2000), when considering the application of CPR 3.9(1) to a decision relating to the relief of a sanction, Brooke LJ said at paragraph 22:

“ it is essential for court, in exercising their discretion on an occasion like this, to consider each matter listed under CPR 3.9(1) systematically in the same way as it is now well known that courts go systematically through the matters listed when an application is made for the exercise of the court’s discretion under s. 33 of the Limitation Act 1980.”

That approach has been adopted by several constitutions of the Court of Appeal since then. The only partial departure from Brooke LJ’s requirement for ‘systematic’ consideration of all the CPR 3.9(1) factors was in Jones v Williams [2002] EWCA Civ 897 where Buxton LJ, after confirming the need for consideration of the factors said:

“I am far from saying that it is incumbent on a judge … to go pedantically through this list and say, item by item, what his view of it was.”

It was Buxton LJ’s view that, in that case, the judge had plainly omitted to consider an important factor.

HH Judge Clark noted that there was a difference of approach between the structured decision-making called for by Brooke LJ and the less rigid approach of Buxton LJ, which he considered was consistent with what Peter Gibson LJ had said in Afolabi. However, he thought that the differences of approach could be reconciled. At paragraph 34 of his decision, he set out what he regarded as the guiding principle which I have set out at paragraph 25 above. To paraphrase Judge Clark’s conclusion, he considered that it is necessary for the judge consciously to consider all nine factors. However, if the judge omitted to mention one or more factors which were irrelevant to the instant case, he would not be corrected on appeal. So the expectation is that the judge will go through each factor which is either relevant or potentially so and will state his views upon it. Judge Clark was of the view that this approach was consistent with that required by the longstanding authorities, namely that, when exercising its discretion on a case management issue, the ET must take account of all relevant factors and not take account of a relevant factor or otherwise reach a perverse decision.

With respect to Judge Clark, I do not think that the approach of Brooke LJ in Bansal and that of Peter Gibson LJ in Afolabi can be so readily reconciled. Brooke LJ calls for highly structured decision-making, with the judge expressly mentioning every one of the nine factors in CPR 3.9(1) (or the six factors in Section 33(3) of the Limitation Act 1980), or at least every factor that is not obviously irrelevant. That is in the context of a High Court case to which CPR 3.9 (or section 33(3)) has direct application. On the other hand, in the context of the employment tribunal jurisdiction, Peter Gibson LJ calls for the use of the section 33(3) or CPR 3.9(1) merely as a checklist or prompt. The obvious distinction is that whereas CPR 3.9(1) is of direct application in the High Court or County Court, it is not of direct application in the employment tribunal.

I would accept Mr Green’s submission that it should be inferred that Parliament deliberately did not incorporate CPR 3.9(1) into employment tribunal practice when it chose to incorporate the overriding objective. There is, to my mind, an obvious reason why Parliament did not do so. It has always been the intention of Parliament that employment tribunal proceedings should be as short, simple and informal as possible. We all know that that intention has not been fulfilled and that employment law and practice have become difficult and complex. But where Parliament has apparently decided not to incorporate into employment tribunal practice a set of requirements such as those in CPR 3.9, I do not think it proper for the courts to incorporate them by judicial decision. It is one thing to say that ETs should apply the same general principles as are applied in the civil courts and quite another to say that they are obliged to follow the letter of the CPR in all respects. It is one thing to say that ETs might find the list of CPR 3.9(1) factors useful as a checklist and quite another to say that each factor must be explicitly considered in the employment judge’s reasons. I would overrule the line of EAT authority which, in effect, requires specific consideration of all the CPR 3.9(1) factors on an application involving relief from a sanction in the ET.

What then is the correct approach to the exercise of discretion by an employment judge who is considering a case of this kind? Rule 34(3) lists a number of bases upon which a decision might be reviewed. Only one of them is of possible application in the present circumstances. That is rule 34(3)(e) which provides that a decision may be reviewed if the interests of justice so require. Rule 35 of the ET Rules provides for the preliminary consideration of an application for review. Rule 35(3) provides that the judge shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked. Therefore, in this case, the EJ had to refuse the application unless he thought that the interests of justice required a review or he considered there was a reasonable prospect that, if a review hearing were held, the strike-out might be revoked.

It is often said that decisions of this kind are discretionary. It seems to me that a decision such as this is not so much an exercise of discretion as an exercise of judgment. But this may be a distinction without a difference in that, in both cases, there is a duty on the judge to decide the case rationally and not capriciously and to make his decision in accordance with the purpose of the relevant legislation, taking all relevant factors or circumstances into account. He must also avoid taking irrelevant factors into account. In both cases there may be two correct answers or at least two answers which are not so incorrect that they can be impugned on appeal. Whereas with the exercise of discretion, the question will be whether the judge’s decision was permissible on the evidence, with an exercise of judgment, the question will be whether his decision was fair. But provided that the judge has met these requirements, his judgment should not be impugned merely because the appellate court would or might have reached a different conclusion.

What factors or circumstances are relevant to a decision will be case sensitive. However, there are some types of decision in which it is predictable that particular factors are likely (although not certain) to be relevant. The factors listed in section 33(3) of the Limitation Act 1980 and CPR 3.9(1) are good examples of this situation. However, in each case, it must be recognised that not all the factors will have any relevance in a particular case. Also, there may well be other factors not mentioned in the list which may be highly material in the individual case.

In the High Court and County Court, when a judge is considering relief from a sanction, he is under a positive duty to consider all the factors set out in CPR 3.9(1) as well as any others which appear to him to be relevant. Although Brooke LJ has called for a highly structured and explicit consideration of such factors, it seems to be accepted that a decision will not be defective if the judge fails to mention a factor which, on consideration on appeal, can be seen to have been irrelevant. But the judge is required to mention all those factors which he regards as relevant and which he has taken into account. If there is a conflict of evidence in relation to any factor, he will have to make clear findings of fact. He will have to show that he has taken the proportionality of the sanction into account.

I do not consider that the same detailed requirements are to be expected of an employment judge considering an application for a review of a sanction. Of course, the judge must consider all the relevant factors and must avoid considering any irrelevant ones. He might well find the list in CPR 3.9(1) to be a helpful checklist, although he would be well advised to remember that, in the instant case, that list might not cover everything relevant. But he is not under any duty expressly to set out his views on every one of those factors. His decision must comply with the basic requirements as set out in English v Emery Reimbold & Strick [2002] EWCA Civ 605. Litigants are entitled to know why they have won or lost and appellate courts must be able to see whether or not the judge has erred. In a case of this kind, it seems to me that the basic requirements are that the judge must make clear the facts that he has regarded as relevant. He must say enough for the reason for his decision to be understood by a person who knows the background. In a case where the draconian sanction of strike-out has been imposed, it will be necessary for the judge to demonstrate that he has weighed the factors affecting proportionality and reached a tenable decision about it. That does not mean that he must use any particular form of words. Any requirement for a particular form of words leads readily to the adoption of them as a mantra. But it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just.

It is well established that a party may successfully overturn a decision such as this simply on the ground that the reasons are not adequately set out. That has not been argued in the present case, rightly in my view. However, I would add that it might well have been sensible for the EJ to have acceded to the request for further written reasons and to have explained his thinking in a little more detail.

Instead, the appeal to the EAT succeeded on the basis that some of the CPR 3.9(1) factors which the EJ had apparently failed to consider had been relevant to his decision. Mr Green submits that this was not the correct approach. It was for Mr Neary to show that all relevant matters had not been considered. I accept that submission. In the words of Lord Woolf MR in Phonographic Performance Limited v AEI Rediffusion Music Ltd [1999] 1 WLR 1507 at 1523:

“Before a court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not have considered or that his decisions was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale”.

Mr Green submitted that Mr Neary had not shown that the EJ had erred. In his submission, all relevant factors had been considered and they led inevitably to the conclusion that a review was bound to fail. He relied on Underhill J’s analysis of the evidence and his view that, although the decision was short, that was all that was required because the case was simple and the facts clearly justified the strike-out.

I turn to analyse the EJ’s decision against the requirements to which I have referred. The reasons comprise only four sentences. I have set them out at paragraph 19 above. They are to be read against the background known to the parties, including the fact that Mr Neary had written to the tribunal claiming that the reason he had not provided the particulars was that he was confused as to what he had to do and when. He was claiming that his handwritten note of the order made at the CMD was completely confused and that he either had not received or could not find the ‘clean’ copy of the order relating to that date. On 8 October the EJ dealt with the case on the basis that those claims were true (even though there were good reasons why the EJ should doubt them and by the time of the EAT hearing it was known that Mr Neary’s handwritten notes were completely clear). In his second sentence, the EJ pointed out that Mr Neary admitted that he had received the unless order dated 5 September. That order, which the EJ had himself made, clearly stated that the further and better particulars were to be provided by 26 September. Moreover, as the EJ observed in his third sentence, Mr Neary had been present when the original order had been made on 31 July. The EJ did not expressly mention that Mr Neary had been handed a second copy of the request for further particulars at the CMD but that fact was well known to the parties. Thus, in those two sentences, the EJ implicitly and justifiably rejected Mr Neary’s claim of confusion as quite untenable. In my view, Judge Clark was not justified in saying that the EJ had failed to consider Mr Neary’s claim of confusion.

Once that excuse had been disposed of, Mr Neary had no excuse for non-compliance. He had had plenty of time. He had known since 9 July that the particulars were requested. He knew that he was under a positive obligation to provide them from 31 July. In the EJ’s eyes, he might (giving him the benefit of the doubt) have been uncertain as to the date (14 August) they were initially due. If he was, he took no steps to clarify the position although at all times he appears to have had email facility available to him. But even if he was uncertain in the period immediately after 31 July, he was reminded of his obligation on 13 August. Also, he was given notice on about 18 to 20 August that the appellants intended to seek an unless order. He knew then that he had already missed the original deadline. He was told that he could make representations but did not do so. By 5 September, the particulars were three weeks late. He agreed that he had received the unless order made on that day. That gave him a further 3 weeks for compliance. It spelled out in the clearest possible terms the consequences of non-compliance. Yet on Wednesday 26 September he wrote claiming (falsely) that he was confused and abusing the tribunal in intemperate language which I have not thought necessary or appropriate to set out in this judgment. In that letter, he promised to provide the particulars that weekend if he could find the order of 22 August. He did not need the order of the 22 August in order to provide the particulars. He had two copies of the request and he knew he was under extreme pressure to provide them. Yet by 8 October, another 12 days on from his promise made on 26 September, he still had not provided them.

It must be accepted that the EJ did not set out all these facts in his decision. That was one of Judge Clark’s complaints. However, these facts were known to the EJ and to the parties. In the light of those facts, the EJ’s justified rejection of Mr Neary’s claim to have been confused and the absence of any other explanation for the failure, it was inevitable that the EJ would come to the conclusion that the failure to comply was deliberate. I cannot see how the EJ could have been of any other view. It is a pity that he did not say so in terms.

It seems to me that the same factual history would lead the EJ inevitably to the conclusion that the failure to provide the particulars was not only deliberate but also persistent. Even assuming in his favour that Mr Neary did not receive the order dated 22 August, he certainly knew about the order made in his presence on 31 July, a reminder sent by email on 13 August and the notice dated 18 August warning him of the intention to seek an unless order and telling him that he could object. He did not do so. That was followed by the order of 5 September giving him 3 more weeks to comply. On 26 September, he said he would comply by 1 October but had not done so by 8 October. Although the EJ did not say in terms that the failure was persistent, it plainly was.

Given that this was a deliberate and persistent failure to provide the particulars, it seems to me difficult to criticise the EJ’s conclusion. One of the conditions set out by Sedley LJ in Blockbuster had been complied with. It is well established that a party guilty of deliberate and persistent failure to comply with a court order should expect no mercy. It seems to me that the EJ was entirely justified in taking the view that a review of the automatic strike out had no reasonable prospect of success. It would have been better if he had said so in terms. However, he did say that the circumstances justified the strike-out and it seems to me that that must have meant that he considered it to be just.

HH Judge Clark allowed the appeal because he was of the view that the EJ had not considered four relevant factors. I have already said that in my view, he plainly did consider Mr Neary’s claim of confusion and roundly rejected it. He did not expressly consider whether the default was deliberate but as I have already said, that was the only sensible conclusion on the facts.

The other two factors which concerned Judge Clark were the effect which the failure to comply had had and the effect which the grant of relief would have on the parties. It is true that the EJ did not expressly consider those factors. But it seems to me that those factors will be far more important in the context of a case of non-deliberate or partially excusable non-compliance. Where the circumstances were such that the failure was at least to some extent excusable, those considerations may well be determinative. However, where the non-compliance is deliberate and persistent, I do not think those factors are likely to be important in the exercise of judgment.

In the course of argument, we asked Mr Fodder how the EJ should have approached those two factors and with what effect. His reply was that, the EJ should have concluded that the Council had not suffered any real prejudice by the delay in compliance; only some delay in the preparation of its defence. It would still be possible for Mr Neary to be given another chance without delaying the hearing date which had not yet been set. Indeed, there had not yet been a pre-hearing review.

I accept that some judges might have taken that view. (In passing, I observe that any judge who was thinking of allowing another chance would want to feel some degree of confidence that it would be taken and the particulars would be provided promptly thereafter. This judge could have no such confidence as Mr Neary’s most recent promise, made on 26 September, had not been kept.) I do not think it could possibly be said that the EJ was wrong not to give another chance. The overriding objective requires that the management of the case should result in the case being dealt with justly as between both parties. It also requires the judge to consider the appropriate use of the resources of the court or tribunal. It is entirely within the overriding objective for a judge to take the view that enough is enough. That stage will more readily be reached in a case of deliberate and persistent failure to comply than one where there is some excuse for it.

In my judgment, the decision of the EJ should not have been overturned by the EAT. First, Judge Clark should not have held that it was necessary for the EJ explicitly to consider each of the potentially relevant CPR 3.9(1) factors. Second, he erred in that he did not apply the correct test for overturning the EJ’s decision. I accept entirely that it would have been better if the EJ had provided more extended reasons for his decision. But when the decision is analysed, it cannot be shown that the EJ had misapplied the law, or taken into account an irrelevant factor, or left out of account a relevant factor or had reached so surprising a conclusion that the court was bound to infer that he had not weighed the factors properly.

For those reasons I would allow the appeal from the EAT and restore the decision of the employment judge.

I agree that this appeal succeeds for the reasons given by Lady Justice Smith. I would like, however, to add one note of explanation and one of qualification.

Nothing I said in Blockbuster Entertainment v James was intended to controvert or qualify the guidance set out by Peter Gibson LJ in Afolabi, to which I was a party. I endorse everything said about these two cases and their sequels by Lady Justice Smith.

While the effect on the parties of striking out or not striking out a claim is important, it will frequently be too obvious to require comment, as Lady Justice Smith indicates in §62. But there will in my view be cases where it requires attention. Here, for example, the root cause of the eventual strike-out was an unanswered request for particulars which, as it seems to me, were not wholly necessary. The nature of the case was plain enough from the ET.1: it was that Mr Neary’s employment had been terminated because the school had found out that he was HIV positive and inferred that he was gay: hence, it was said, there had been discrimination on grounds of both disability and sexual orientation.

So it may have been a potentially relevant consideration that the school already knew the answer to this request. But it was not one that could have made a difference to the outcome: for better or for worse, these and other particulars had been directed and the excuses for not providing them had run out.

I too would allow the appeal for the reasons given by Smith L.J.. I agree with Sedley L.J. that Blockbuster Entertainment is not inconsistent with Afolabi.

This was not a difficult case. As the employment judge stated in his short but understandable judgment, Mr Neary was present when the order was made and admitted receiving it. Any confusion about its terms should have evaporated on receipt (if he had bothered to read it and if he did not bother to peruse it, he cannot complain). As the employment judge held, “in those circumstances” the failure to comply justified the strike out. There was nothing wrong with that conclusion.