Solicitor at fault for striking out of claim

When an Employment Tribunal (ET) strikes out a claim because of a fault of a legal representative, the Claimant’s “remedy” is against their representative, the Employment Appeal Tribunal (EAT) has held in the case of Phipps v Priory Education Services Ltd [2022] EAT 129.

Phipps brought claims in the ET and instructed solicitors. This meant the ET did not send any correspondence to Phipps, only to the solicitor.

The solicitor failed to comply with court orders and the claim was struck out because of this reason and because it was not actively pursued.

This led to costs being incurred and a wasted costs order was made against the solicitor. When Phipps found out, she applied for a reconsideration of this decision.

At a hearing of the application, new information was provided, indicating the fault was the solicitor’s and not Phipps’s. However, her application was rejected. She appealed to the EAT, but this was rejected.

The EAT held that the tribunal had been correct in finding that Phipps had a remedy against her representative, particularly when her grounds for this seemed promising.

The ET had accepted Phipps’s evidence and made strong findings against the representative.

The interests of justice included those of the other party in the proceedings, who had prepared for two full hearings, neither of which had been effective. There was also a public interest in the finality of litigation.