Comments on: Time limitation on disability discrimination defence?

By: contact

contact — Wed, 20 Feb 2008 23:21:17 +0000

I’m with you on a) b) & c) - a) & c) were my thinking. I’ll look at b). I’d prefer to be arguing a Malcolm ‘unlawfulness’ than a Romano ‘reasonableness’ line, though, but Malcolm itself seems a bit vague on whether this is a defence or, in effect, a counterclaim/injunction.

CPR 39(3)(5)(a) - the definition of promptly depends on the facts of the case. For instance, in my hypothetical, the combination of the disability itself and lack of representation/legal advice would be the basis for arguing an extended time for an application. But 39(3)(5)(a) could well be an issue depending on the specific facts in each instance.

By: J

Wed, 20 Feb 2008 21:59:33 +0000

I don’t think that Sch. 3, Part 2, para. 6(1) is your problem:
(a) it isn’t a claim that you’re seeking to raise, rather it is merely a factor that needs to be considered as part of the “reasonableness” analysis on their claim;
(b) in Romano, Brooke LJ at 63 & 64 seems to be saying that, whilst a counterclaim for a declaration and / or an injunction would be a claim, raising these matters as an aspect of reasonableness would not be;
(c) s.25 itself suggests that DDA rights can be vindicated other than by counterclaim (i.e., by being raised at the reasonableness stage). It provides that a discrimination claim may (not must or shall) by the subject of a claim. The use of “may” would suggest that s.25 is permissive, rather than mandatory;
(d) even if all that is wrong, Sch. 3, Part 2, para 6(3) gives the court a power to extend time for compliance. Given the importance that the CoA attached to DDA issues in Malcolm, I’d be surprised if a DJ wouldn’t extend time.

However, don’t you have a more significant problem trying to meet CPR 39(3)(5)(a)?

By: advocatus diaboli

advocatus diaboli — Wed, 20 Feb 2008 09:33:21 +0000

NL, do forgive me for not having left you a comment when I finally managed to get onto your blog! I was so excited it completely slipped my mind. I am sorry to have caused you such agonies! The problem from my home computer still persists. I will try and rectify it over the weekend when I have some time to look at it. At least I know that I can still drop by now and then! AD

By: 100 Words Every High School Graduate Should Know

100 Words Every High School Graduate Should Know — Tue, 30 Nov 1999 00:00:00 +0000

Time limitation on disability discrimination defence?By contact may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty. (2) For the avoidance of doubt it is hereby declared that damages in respect of

By: DCS NEWS BLOG

DCS NEWS BLOG — Tue, 30 Nov 1999 00:00:00 +0000

1995 (DDA) is now comfortably into its second decade, but for employers and employees alike, there remain certain grey … See all stories on this topic DCS Blogs Alert for: Disability discrimination actTime limitation on disability discrimination defence?By contact Post Malcolm, or even post Romano, there is a prima facie case for an application to set aside the SPO either as unlawful as Disability Discrimination, or as client has a defence and didn’t attend hearing for a good reason.