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Under Article 24 of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016 (the “Order”) the Tribunal has the power to strike out all or part of a claim or response on five separate grounds. Striking out is a draconian (definitive and brutal) measure, as it prevents the relevant party from either continuing with their claim or defending their response.

A recent judgment in the case of Lakatos v Sarum Hotel & Jennifer Weston considered the Respondents’ applications to strike out claims in both sets of proceedings (Cases 64/24 and 110/25) on multiple grounds under Article 24 of the Order. This is a long-running case, with a complex and lengthy procedural history. The final hearing was scheduled to take place earlier this month for five days – we are awaiting the judgment and will provide further commentary once this has been received in due course.

To read the judgment please click here: Larrisa Lakatos v (1) Sarum Hotel Limited, (2) Cristina Mira Sanchez, (3) Robert Weston.

The claims in both proceedings were brought under the Discrimination (Jersey) Law 2013 (the “DJL”) and included various employment and post-employment discrimination claims relating to the protected characteristics of race, sex and disability.

This is a useful and important judgment because it clarifies the Tribunal’s approach to strike out on the basis of the grounds set out below.

Ground 1 – no reasonable prospects of success

In both sets of proceedings, the Respondents argued that the claims had no reasonable prospects of success. This ground was advanced for numerous reasons, including (but not limited to):

1. The Respondent argued that it had strong evidential rebuttals to the Claimant’s allegations;
2. Some of the claims were out of time; and
3. The Claimant’s evidence was hearsay.

In relation to the first contention, the Deputy Chair, citing Goncalves v Voisin Department Store [2023] TRE 191 (relying on Ezsias v North Glamorgan NHS Trust (2007) EWCA Civ 330) stated that the Tribunal was satisfied that the claims were arguable in law and that none of the claims were liable to be struck out on this basis. The Deputy Chair noted that whether any particular claim would “prevail or otherwise at the final hearing will depend on the weight of the evidence and credibility of the respective witnesses of the respective parties.” 

The argument in relation to claims being out of time was entirely dependent on whether the discrimination alleged was found to an individual act of discrimination or part of a continuing act, i.e. a continuing state of affairs which amounts to discrimination (Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ. 1696). 

Citing the most recent Jersey judgment on extended acts of discrimination (Francioso v States Employment Board [2024] TRE 127), the Deputy Chair confirmed that the correct approach is to determine at the final hearing whether an earlier alleged act of discrimination is a valid substantive claim.

As to hearsay evidence, the Deputy Chair confirmed that the Tribunal is not bound by any rule relating to the admissibility of evidence in proceedings before the courts (Article 26(4) of the Order) and may therefore have regard to hearsay evidence. (The Tribunal has broad jurisdiction to regulate its own procedure.)

This ground (no reasonable prospects of success) was rejected by the Tribunal in both sets of proceedings.

Ground 2 – not possible to have a fair hearing 

This ground was advanced by the Respondents in both sets of proceedings. In both, the argument was that the only evidence to be adduced by the Claimant was that of herself and her husband and that on this basis, it was not possible to have a fair hearing. 

The Deputy Chair stated that the evaluation of the weight and credibility of evidence at a final hearing is “precisely the function of the Tribunal and does not go to the issue as to whether or not it is possible to have a fair hearing.” 

This ground was rejected by the Tribunal in both sets of proceedings on this basis. 

Ground 3 – the claim is scandalous or vexatious 

Again, this ground was asserted in both sets of proceedings:

• In Case 64/24, the Respondents asserted that they relied upon various evidential matters which refuted the Claimant’s allegations and they further asserted that the claim was a complete fabrication engineered by the Claimant’s legal representative, purely for financial benefit; and
• In Case 110/25, the Respondents argued that almost the entirety of the Claimant’s Amended Particulars of Claim was defended on the grounds that the assertions were incorrect, misleading or irrelevant.

In relation to both sets of proceedings, the Tribunal had regard to Haden-Taylor v Canopius and others [2015] (1) JLR 224. In Haden-Taylor the Royal Court held that in order to strike out a pleading on the ground that it was scandalous, the court or tribunal had to be shown that: “the pleading contained unnecessary allegations or allegations that were unnecessary to the main issues between the parties”.  Further, the Royal Court held that the power to strike out on this basis should: “only be exercised in clear cases and taking into account all of the evidence.” 

As the Tribunal had already indicated that the claims in both sets of proceedings were arguable in law, the matters alleged by the Respondents did not meet the high test in this area and this ground was rejected in both sets of proceedings.

It is worth noting that an allegation that a claim is a “fabrication engineered by [a party’s legal representative] purely for financial benefit” is a very serious allegation to make. A Jersey qualified lawyer who put forward an allegation knowing it to be false would be in breach of the Jersey Law Society’s Code of Conduct and liable to be subject to disciplinary proceedings.

Ground 4 – the manner in which the proceedings were conducted has been scandalous, unreasonable or vexatious 

Multiple arguments were advanced in each set of proceedings under this ground. In Case 62/24, these included that:

• The Claimant would not have brought the proceedings had her husband not pressurised his wife to pursue the case; 
• The alleged spurious nature of the claims advanced; 
• The alleged conduct of the Claimant’s representative Mr Le Cornu, including proposing numerous settlement terms in various attempts, and it being his sole motivation to earn commission based on damages awarded to the Claimant. 
• Reliance was placed on Kumi v Edwardian Pastora Hotels Ltd (case No.2216798/2013-21 November 2024).

In Case 110/25, the Respondents’ contentions included:

• Many of the allegations were inaccurate, misleading or repetitive leading to wasted time. 
• The additional proceedings were a vexatious tactic to overwhelm the Respondents. 
• The claim was concocted and exaggerated. 
• There had been an abuse of process, relying on Thompson v Beaulieu Convent School [2025] TRE 225.

In Case 64/24, the Tribunal found that there was insufficient evidence to prove the allegations under this ground and that many of the allegations did not go to the issue as to whether the proceedings have been conducted in a scandalous, unreasonable and vexatious matter so as to justify a strike out. The case of Kumi was distinguished and the Tribunal concluded that it could not be reasonably asserted that the Claimant was not seeking to enforce legitimate employment rights. 

In Case 110/25, the Tribunal’s analysis of the abuse of process argument is particularly interesting. It included a review of the recent case of Thompson. Case 110/24 was distinguished from Thompson as follows:

• In Thompson, the Claimant issued a second claim advancing discrimination complaints, which arose out of the same factual matrix as the first claim. Once the Claimant became aware of the discriminatory complaints during the first proceedings, the reasonable course was to apply to amend the existing claim. The Tribunal held that issuing a second claim amounted to an abuse of process under the principles in Henderson v Henderson as applied in Szucz (both English law decisions). The second claim was struck out on this basis. 
• In Case 110/25, the claims related to events arising after the termination of the Claimant’s employment. Whilst certain factual matters were pleaded by way of background, the first substantive matter relied on was the request for a reference made on 6 March 2024 (after the Claimant’s termination). As the claims in Clase 110/25 did not arise from the same factual matrix as Case 64/24, the principles in Thomson did not apply and the ground was rejected. 

All of the points argued under this ground (and all of the grounds advanced) were rejected by the Tribunal, meaning the Respondents’ application to strike out both sets of proceedings was dismissed. 

Conclusion 

This judgment provides a helpful analysis of multiple aspects of Article 24 of the Order. It is a reminder that applications to strike out claims in the Tribunal have to cross a high legal threshold and that claims are unlikely to be struck out except in the clearest cases. 
We look forward to providing further commentary on the final hearing judgment in this long-running case.

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