The Claimant, who was a litigant in person, sought to amend his claim but his application was refused by the ET and his claims were struck out. He appealed to the EAT which set aside the orders and remitted the case back to the ET. The second ET refused the application to amend and dismissed the claim. In its judgment, the ET determined that had the amendment been allowed, the claim would have been struck out in terms of (the then applicable) rules 37(1)(e) and (a) respectively. The Claimant appealed.

The EAT allowed the appeal. The ET erred (i) by failing to give effect to an earlier decision of the EAT on the proper characterisation of a proposed amendment; and (ii) by failing to have proper regard to (a) the reasons for delay; and (b) the position in respect of the availability of witnesses when considering whether the proposed amendment should be permitted. Had the ET permitted amendment, it would also have erred (i) by failing to have proper regard to (a) the reasons for delay; and (b) the position in respect of the availability of witnesses when considering whether to strike out the amended claims on the ground that it was no longer possible to have a fair hearing in respect of the claims; and (ii) by indicating that it would have struck out the amended claims on the ground that they had no reasonable prospect of success, where it had also indicated that if amendment had been allowed the Claimant would have been required to provide further specification of his claims.