Party making application for strike out has no right to insist on oral hearing (Duvenage v NSL)

A party who makes an application to strike out all or part of another party’s claim or response under Rule 37(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the ET Rules) has no right under Rule 37(2) to insist upon that application being considered at an oral hearing in public, according to the EAT.

Duvenage v NSL (UKEATS/0002/20/SS, UKEATS/0003/20/SS, UKEATS/0004/20/SS & UKEATS/0005/20/SS)

What are the practical implications of this case?

This judgment clarifies that a party making an application to strike out the other party’s pleading (in whole or part) has no right under Rule 37(2) for the determination of that application being carried out an oral hearing. It is only the party at risk of the consequences of a successful application that can insist on there being a hearing.

It should be noted, however, that even where the affected party does not make a request for an oral hearing it may, in certain circumstances, still be necessary for there to be a hearing instead of the application being considered on the basis of written submissions. For example, a tribunal may need to list a hearing if there are disputed facts about the affected party’s conduct of proceedings and it is necessary to hear evidence. A party that wants its application for strike out to be determined at an oral hearing should therefore explain in its request for an oral hearing the reasons why such a hearing is necessary or otherwise in accordance with the overriding objective to deal with cases fairly and justly.

Case details

• Court: Employment Appeal Tribunal
• Judge: Lord Fairley
• Date: 8 December 2020

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