Thread by @JasonBraier

1/ Mukoro v IWGB: EAT holds an ET wrong to refuse to adjourn a strike out hearing when the disabled LiP claimant attended an emergency dental appointment for immediate medical treatment for an excruciating abscess on the day of the hearing. bailii.org/uk/cases/UKEAT… #ukemplaw

2/ The application to adjourn followed a history of adjournments of earlier hearings for health reasons (C being disabled by anxiety), which may have led EJ Snelson to view this application with some suspicion. He put back the hearing by 2 hours & emailed M's daughter as follows:

3/ There was no reply to that email & EJ Snelson heard the case, refused the application to adjourn in M's absence & acceded to the application to strike out the remainder of M's case. Here is what EJ Snelson wrote about refusing the adjournment application:

4/ Subsequent to the hearing, M's dentist from to confirm he had seen M that day & she was in severe pain due to 2 dental abscesses. An application for reconsideration was made but was refused.

5/ At the EAT, Lavender J 1st considered the law on strike out on the basis that a fair hearing is no longer possible. Usefully he considered the approach where the claimant is disabled.

6/ 1st, he held Lord Steyn's comments in Anyanwu on the cautionary approach to strike out of discrimination claims applicable not only to abuse of process strike outs but also to other grounds too.

7/ 2nd, that when considering whether a fair hearing remains possible in the context of a disabled party, there's a need to consider that in the context of what reasonable adjustments can be made to accommodate the disability & that a disabled person's autonomy be respected.

8/ EJ Snelson's decision to strike out the claim relied upon delays, the impact on the individual respondents & medical evidence which persuaded him there was no realistic prospect of the claim being heard within a reasonable period.

9/ Most relevantly to the appeal, EJ Snelson also considered himself persuaded that the longer the litigation continued, the greater the likely damage to M's own wellbeing.

10/ The EAT considered that if M was unable to attend the strike out hearing through no fault of her own, it would be a denial of justice not to grant the adjournment, & to deprive her of the opportunity to resist the strike out application. Teinaz in the CA was relied upon:

11/ The EAT considered prejudice to the Rs - whilst not irrelevant - would be outweighed by the denial of justice in refusing to adjourn when M had been unable to attend through no fault of her own. The EAT was dissatisfied how the EJ had considered whether M was unable to attend

12/ The EAT allowed the appeal re the adjournment & then went on to consider the strike out decision in obiter. It considered it an error of law for the EJ to take account of the impact of continued litigation on M's health & its view it was in M's best interests to end it.