Litigator’s claim against ex-firm struck out for unless order failure

Tribunal: Solicitor had still not disclosed his witness statement

A civil litigator with experience of employment disputes has had an unfair dismissal claim against his former firm struck out for failing to comply with an unless order.

The employment tribunal said Mr S Wakeman had “wilfully” failed to adhere to its deadlines, despite having plenty of time to do so.

The solicitor worked for Kent firm Boys & Maughan for 19 months to May 2019, when he was dismissed. In September 2019, he brought a claim for automatic unfair dismissal, age and sex discrimination or harassment, notice pay, holiday pay and other payments.

The tribunal described him as “an experienced solicitor” who worked for the firm as a civil litigator and also had conduct of employment tribunal proceedings.

Employment Judge Burge said the correspondence between the parties throughout the proceedings had been “acrimonious”.

Mr Wakeman did not allow the firm to communicate with him via email, which became an issue as various deadlines fell in the weeks and months after the pandemic hit.

“The claimant and respondents’ ability to scan and copy documents was adversely affected. The claimant gave evidence that he had made a number of telephone enquiries about scanning/copying but had been unable to get through.

“The tribunal rejects this evidence as unlikely that over the course of the year the claimant would have been unable to secure assistance from reprographics companies.”

Mr Wakeman did not provide any copies of his disclosure documents, despite Boys & Maughan asking him to do so repeatedly.

Judge Burge said: “The claimant gave evidence to the tribunal that he had understood their requests for copies of their disclosure to mean copies of the list itself (that he had already given them). This is not credible from an experienced civil litigator who undertook employment litigation.”

There was a long delay due to a procedural error around a first unless order. In May 2021, a second unless order for disclosure of documents and witness statements was made.

Mr Wakeman provided the documents two days before the deadline later that month but not his witness statement – and, as of the date of the hearing 10 months later, still had not.

The claim was automatically struck out and Mr Wakeman applied on reconsideration for the order to be varied or set aside and, if not, for relief from sanction.

Rejecting this, Judge Burge said: “The claimant was put squarely on notice of the importance of complying with the order and the consequences if he did not do so. This is an important consideration.

“The claimant has not demonstrated to me that it is in the interests of justice to vary or revoke the second unless order taking into account the history of the proceedings prior to [making it]. He knew what he had to do and he did not do it.”

Not providing a witness statement was “a serious default” and the claimant had not provided a good reason for it.

The judge concluded: “The claimant’s employment had ended on 16 May 2019. The claimant had finally provided his disclosure documents two years later but he still had not provided his witness statement.

“The hearing had originally been listed to take place in September 2020 and, while it was stood down for lack of judicial resource, it could not have gone ahead anyway due to the claimant not adhering to the deadlines.

“There were difficulties caused by the pandemic. Offices up and down the country were closed for long periods but parties up and down the country managed to progress claims and adhere to tribunal deadlines. The claimant knew about the first unless order and did not proceed to meet its deadline.

“He adhered to one of the deadlines of the second unless order, but not in relation to his witness statement. By then the prejudice to the respondents was too great in having to defend a claim where the claimant wilfully failed to adhere to tribunal deadlines.”

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