Thread by @JasonBraier

🧵Phipps v Priory Education: CA provides really important comments about how fanciful it considers the 'alternative remedy in pro negligence' argument where a party relies on its legal rep's failings in seeking reconsideration of a claim.
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2/ Ph's claim was listed in March 2018. C had a legal rep throughout. He applied to adjourn the March hearing due to suffering a medical emergency. Postponement was granted but the ET ordered medical evidence be provided. He failed to do so repeatedly.

3/ Trial was relisted for Jan 2019, but in Dec 2018 the ET issued a strike out warning based on failures to comply with orders & that the claim wasn't actively pursued. It was only sent to Ph's rep & not to her. The rep failed to respond & the claim was struck out.

4/ PE applied for costs & for wasted costs against the rep. It was only at this point Ph learned of the strike out & she applied swiftly for reconsideration.

The ET made findings about the legal rep's culpability & ordered costs only against him, but refused reconsideration.

5/ In doing so, it relied on Lindsay v Ironsides Ray, where Mummery J had spoken of failings of a party's rep not generally constituting ground for review. The EAT upheld the ET's decision.

6/ Ph appealed on grounds including that the ET had treated Lindsay as providing a rule of law giving a conclusive answer rather than exploring whether the facts found amounted to exceptional circumstances, that the decision wasn't Meek compliant, & that it was perverse.

7/ The CA considered 3 cases on point: Trimble v Supertravel, Lindsay & Newcastle Upon Tyne v Marsden. The latter is the case in which a claimant didn't turn up to a disability hearing because counsel told him not to, but where counsel hid that fact from the ET.

8/ In Marsden, whilst the EAT endorsed Lindsay, it considered that exceptional circumstances could merit reconsideration where the fault lay at the representative's feet. Marsden was just such a case.

9/ The CA in the present case derived 3 principles from the case law:(i) whilst ET's have a broad discretion, they must deal with cases in accordance with recognised principles; (ii) failings of a rep aren't generally grounds for review when there's been the opp to argue the case

10/ and (iii) The general rule isn't a blanket rule - there may appropriately be reconsideration in an exceptional circumstance in which the party hasn't had a fair opportunity to present the case.

11/ The CA considered Ms Phipps' case to be similar to that in Marsden. It was a circumstance in which the importance of maintaining finality of litigation could reasonably be judged to be outweighed by the peculiar injustice to the claimant.

12/ The CA held the alternative remedy argument wholly unrealistic in a case like the present, & describing it as a "figment of the imagination" in the present case, & one generally to be treated with scepticism, noting particularly the lack now of legal aid for such cases.

13/ Though not mentioned here, these comments may clearly have wider implications, undercutting the Dedman line of cases where the legal rep is at fault for a claimant not putting in their unfair dismissal claim in time.

14/ Ultimately, the CA held the ET hadn't why it wasn't in the interests of justice to reconsider the strike out save for saving Lindsay provides that a rep's failings generally aren't grounds for review. It wasn't Meek compliant.

15/ The CA held that applying the correct principles the only answer was that reconsideration should've been granted, given Ph was not at fault & had no knowledge of what was happening, had no opp to present her case, & an alternative remedy was fanciful.

16/ Thus the CA ordered that the strike out be revoked alongside the decision to confirm strike out & the EAT order dismissing the appeal. The case was thus resurrected in the ET.

17/ Finally, as a sensible footnote, the CA suggested the ET President change practice re strike out applications to ensure any r.37(2) warning letter is sent to the party personally as well as to their representative.

18/ It's a great win by @42BR_Employment colleagues @RadBarrister & Andrew Carter (who appeared remotely from Australia in, I think, a CA first!), instructed by Amit Patel of Atkinson Rose LLP. #ukemplaw

19/ The judgment hasn't yet made it on to the Internet since hand down, but I'll post a link when I notice that it has done.

As promised, here's the link to the judgment: bailii.org/ew/cases/EWCA/…

#ukemplaw