Viktor Kiseliov & Ors v Alpha Vehicles Limited
[2024] EAT 8
D Chumbu v The Disabilities Trust
9 July 2024
[2024] EAT 113
Employment Appeal Tribunal
A man's employment case was thrown out because he didn't submit a statement on time and hadn't paid previous court fees. The appeals court said it was fair to throw out the statement part because he didn't prioritize it, but unfair to throw out the entire case for not paying fees, as this was essentially an extra penalty. The court felt the original ruling on fees wasn't properly considered.
Key Facts
- •Mr Chumbu's employment tribunal claims were dismissed for non-compliance with an unless order.
- •The unless order required him to serve a witness statement and pay a previous costs award.
- •The tribunal refused to set aside the unless order, and Mr Chumbu appealed.
- •Mr Chumbu suffered from prostate cancer and experienced treatment side effects affecting his ability to work and prepare his case.
- •He had a history of non-compliance with previous tribunal orders.
Legal Principles
Relief from sanction for non-compliance with an unless order is granted only if it is in the interests of justice.
Rule 38 ET Rules
The interests of justice test is not a checklist; the tribunal must consider all relevant factors and avoid irrelevant ones. The decision must be rational and not capricious.
Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civ 1190
Deliberate and persistent disregard of procedural steps, or making a fair trial impossible, justifies striking out a claim.
Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684
Deposit orders are to identify claims with little prospect of success, not to hinder access to justice.
Hemdan v Ishmail and anor [2017] IRLR 228 EAT
Costs orders are compensatory, not punitive. The tribunal may consider the paying party's ability to pay.
Rule 70(1), 77, 78, 84 ET Rules; Lodwick v Southwark London Borough Council [2004] EWCA Civ 306; Beynon and ors v Scadden and ors [1999] IRLR 700 EAT
Outcomes
Appeal dismissed in relation to the witness statement.
The ET's decision was not irrational. While acknowledging Mr Chumbu's health issues, the ET found that he had deliberately chosen not to prepare his witness statement and had prioritized responding to the unless order. The ET considered the interests of justice, noting Mr Chumbu's history of non-compliance and the need to progress the case.
Appeal allowed in relation to the costs award.
The ET erred by making the costs award subject to the unless order, effectively turning it into a deposit order without the necessary safeguards. This was disproportionate and unjust, particularly given the ET's previous consideration of Mr Chumbu's means and the material change in his circumstances since the costs award. The ET failed to consider the interests of justice.