In these long running proceedings stretching back to 2018, the Respondent made 3 strike out applications following alleged non-compliance by the Claimant. The third strike out application was successful, the ET agreeing with the Respondent that the Claimant had not actively pursued his claim. The Respondent rejected the Claimant's claim of non-compliance by the Respondent, saying that any non-compliance was attributable to delay by the Claimant. The EAT struck out the Claimant's claims on the grounds that there had been a failure to comply with orders, that the claim had not been actively pursued and that a fair hearing was not possible because of the failure to comply with orders. The Claimant appealed.

The EAT allowed the appeal. While it was clear that there had been a pattern of failure by the Claimant to comply timeously with orders, the judgment striking out the claim did not give adequate reasons why a fair trial was not possible nor consider if strike out was proportionate. It did not refer to the Claimant’s correspondence and it is likely this was not before the judge when the decision was made.