The claimant and 36 colleagues had brought claims for withheld pay relating to days they were on strike in 2019. A case management order was made relating to schedules of loss and disclosure which the claimants - or their representatives - failed to comply with, so in October 2020, the respondent's solicitor sought an unless order and which was granted. The order was, unusually, policed by the respondent who told the judge that it had not been complied with and the claims were struck out in December 2020.

The claimants appealed on 3 grounds: the judge had failed to consider whether there had been material non-compliance; failed to adopt a facilitative not punitive approach and had accounted for irrelevant factors. HHJ Tayler allows the appeal, although it was a close call whether the non-compliance was material, and also took the chance to set out at [33] some key points about the making unless orders as they make up “too large a part of the diet of the EAT”