England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(EMPLOYMENT APPEAL TRIBUNAL JUDGE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th November 2009

Lord Justice Etherton:

1. This is an oral renewal of an application for permission to appeal a decision of the Employment Appeal Tribunal ("the EAT") on 8 December 2008 dismissing an appeal from the Employment Tribunal ("the ET") on 3 October 2007 striking out the appellant's complaints under the Disability Discrimination Act 1995 ("the DDA"). Rimer J refused permission to appeal on paper on 23 June 2009.
2. The ET struck out the appellant's DDA claims because it considered that her conduct of the proceedings had been unreasonable and she had failed to comply with the ET's orders.
3. The disability on which the appellant relied was mental impairment in the form of long-term depression. The respondent employer does not accept that the appellant had, or has, a disability under the DDA. The ET made a number of orders for the instruction of a joint expert, namely a consultant psychiatrist. An "unless order" was made on 15 June 2007 by the Chairman, Mr Scannell. The appellant was not present when that order was made. The relevant parts are set out in paragraph 10 of the ET's judgment:

"1. The parties are jointly to instruct one of the experts listed by the Claimant in her email dated 6 February 2007 to give evidence to the Tribunal by way of a written report on the issue of the Claimant's alleged disability, its cause and prognosis.

2. The letter of instructions shall be that agreed between the parties on 15 March 2007 as amended and signed by me as Chairman

3. Unless the Claimant co-operates with the chosen doctor by:-

(i) consenting to the release of all relevant medical records, including GP notes, and attending a consultation to enable the doctor to prepare his report by 29 July 2007, the Claimant's claims under the Disability Discrimination Act and/or for damages for personal injury arising out of her other various claims shall be struck out:

(ii) the consultant's report be produced by 29 July 2007. The parties have permission to put questions to the consultant by 12 August 2007 and replies to be provided by the consultant by 19 August 2007."

4. A twenty-day hearing was fixed to consider all the appellant's complaints, including those relating to her alleged disability. That twenty-day hearing was due to start on Monday 24 September 2007. At the commencement of that hearing no joint experts' report had been obtained. The respondent alleged that was due to the wrongful conduct and lack of cooperation of the appellant. It applied for the DDA claims to be struck out by a notice which was, according to the appellant, handed to her on the morning of Wednesday 26 September 2007. The application was supported by an eight page skeleton argument on behalf of the respondent, which the appellant says was also handed to her on the morning of Wednesday 26 September 2007. I am told by the appellant that there was no witness statement in support of the application, and that the ET proceeded to consider the application to strike out on that morning. Facts and information relevant to the application were given by the appellant orally to the ET. She was unrepresented at that hearing.
5. The ET took as the legal test the following statement in paragraph[5] of the judgment of Sedley LJ in Blockbuster Entertainment Ltd v James [2006] IRLR 630:

"The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible."

There is no dispute that that is the correct test to apply.

6. Having reviewed the evidence the ET concluded that the appellant had failed, over a sustained period, to comply with the ET's clear directions concerning the independent expert and that the failure was both deliberate and persistent. The ET then went on to consider whether the appellant's deliberate and persistent failure made a fair trial impossible. The ET concluded that it would be inappropriate, and unfair to the respondent, to proceed on the strength of the appellant's medical evidence alone.
7. The appellant informs me that she asked for an adjournment. The ET considered that, if they were to adjourn the hearing, it would have to be on the basis that the appellant would then undergo a medical examination by a joint expert as a prerequisite of pursuing her complaints; but, in view of the history of the matter, they had "some doubts" as to whether an adjournment would achieve that end. They had found that the appellant had demonstrated a reluctance to disclose her records and, without that disclosure, it was very doubtful whether a proper and full report could be obtained. They were not confident that she would not find more excuses for failing to see the expert. They also noted that any adjournment of the case, with a period of twenty days likely to be needed for the hearing, would cause delay for some considerable time. It was likely that the matter could not be relisted until the middle of 2008. They further stated that they had severe doubts as to whether the appellant was in any financial position to satisfy what would be likely to be a very substantial order for the costs of an adjournment. They also reflected on the fact that the recollection of witnesses would have become fainter because of delay.
8. In the light of those matters, the ET stated their findings as follows:

"28. Having balanced all of these matters we find that:

28.1 the cause of our present difficulties has been the deliberate and persistent failure of the Claimant to comply with the requirements of the Tribunal.

28.2 There would not be a fair trial of the disability issues if we hold the trial in the remaining time listed. That would not be fair to the Respondent as they have not been able to have sight of the appropriate evidence and the reason for this is the fault of the Claimant.

28.3 If we were to adjourn the Hearing, that would also be unfair because it would result in delay, considerable additional expense to the Respondent and potential difficulties over evidence.

28.4 Proportionately, we find that the appropriate step to take is to strike out the complaints of disability discrimination. We do that with some reluctance but we are certain that it is the right decision. We can go ahead with hearing all of the other complaints which the Claimant has made and to which the medical report is not relevant.

29. Our decision, therefore, is that we will order that all of the Claimant's complaints under the Disability Discrimination Act be struck out. We will continue to hear the other complaints."

9. The EAT, (Burton J, Mrs A Gallico and Mr H Singh) dismissed the appellant's appeal from the ET decision to strike out her DDA claims on the grounds that (1) the ET was referred to the relevant authority on the issue of striking out; (2) the ET concluded that the relevant conditions required to be fulfilled were in fact fulfilled; (3) the ET then properly considered the issue of proportionality; (4) and so there could be no complaint about the legal test adopted by the ET; (6) the ET were entitled to reach the conclusion on the facts which they did; (7) the refusal of an adjournment was a discretionary matter for the ET which, in all the circumstances, was within the scope of a proper exercise of discretion.
10. The appellant advances 12 different grounds of appeal. They are as follows:

(1) The ET failed to take account properly or at all of the appellant's psychological condition and mental impairment.

(2) The ET erred in striking out all the appellant's DDA claims at a case management hearing on 26 and 27 September 2007, notice of the strike out application not having been given with sufficient notice to the appellant - a litigant in person who suffers long term mental impairment.

(3) The ET did not have jurisdiction to strike out the appellant's claim; the order with which the appellant allegedly failed to comply with was not an "unless order". The respondent failed to include the revocation of the "unless order" in the trial bundle or bring this to the ET's attention.

(4) The ET erred in its findings of fact, failed to take an independent view of the documentary evidence, the appellant's account and the conduct and motivation of Dr Fagin and the respondent's counsel.

(5) The ET erred in its decision that the appellant deliberately and persistently failed to comply with the ET's orders concerning obtaining medical expert opinion in relation to her DDA claims.

(6) The respondent had a duty to ensure that the relevant evidence was before the ET even if it adversely affected the respondent's case. This duty was breached in relation to the 15 June case management hearing and the later hearing on 24 - 27 September 2007.

(7) The ET erred in failing to order an adjournment.

8) The ET erred in doubting that the appellant was in a position to satisfy an order for costs.

9) The ET erred in not considering properly or at all other proportionate remedies.

10) The ET erred in failing to appreciate there was no order by Chairman Debizies at the case management hearing on 15 March 2007 requiring the appellant to disclose her medical records to Dr Fagin.

(11) The ET erred in all the circumstances in striking out the appellant's claim on the basis of an order that did not exist.

12) The ET failed to consider that a hearing could have proceeded in the absence of medical evidence from a jointly instructed medical expert. The meaning of disability pursuant to schedule 1 of the DDA 1995 as amended in December 2006 does not require a mental impairment to be a clinically well recognised illness. Therefore, there was no need for the Appellant to prove a diagnosable medical condition.

11. Mrs Chambers-Mills has appeared in person today and has made oral submissions in support of her application. She has produced further written submissions.
12. An appeal to this court is not a rehearing. An appeal will only be allowed if the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in its proceedings. In the light of the evidence placed before the it, the ET reached conclusions of fact concerning the appellant's failure to comply with the directions concerning the appointment of the Independent Expert and the production of his report and that such failure was deliberate and persistent. In the usual course of events, findings of fact of that kind could not be challenged in this court; indeed, that was the approach taken by the EAT. However, in view of the matters to which I will turn in a moment, I consider that there are exceptional grounds for permitting the appellant in this case to put in issue on an appeal the ET's findings of fact in relation to those alleged failures on her part.
13. I turn then to those exceptional circumstances. The appellant has pointed out that a letter of 2 August 2007, from the Tribunal Service to the appellant herself and to the solicitors for the respondent, indicates that the "unless" aspect of Mr Scannell's order of 15 June 2007 was removed, or at least that was the impression which the letter reasonably gave the appellant. That letter, and its contents and effect, do not feature at all in the judgment of the ET. On the contrary, although I have not seen the written application of the respondent to strike out the appellant's DDA claims before the ET, it is apparent from the written skeleton argument in support of that application that the respondent was at the hearing before the ET relying upon the failure to comply with the "unless" order. To put it at its lowest, I find it extremely surprising that the respondent's skeleton argument did not refer to the letter of 2 August 2007, particularly since at that stage the appellant was acting in person. It seems reasonable to conclude that the ET proceeded with its determination of the application to strike out in ignorance of the letter of 2 August 2007, or at least unaware or not believing that the "unless" aspect had been removed, or purportedly removed, by the ET itself.
14. Similarly, in relation to the EAT, it is to be noted the EAT emphasised in paragraph 13 of its judgment that the orders relating to the production by the appellant of her medical records for enabling a joint expert to write a report:

"…were in this case made originally by consent, but then were even more heavily iterated and reiterated and eventually made into an unless order by the Tribunal."

That appears to indicate that the EAT was proceeding with the appeal on the assumption that the "unless" order remained in place at all relevant times, up to and including the hearing on 26 September 2007.

15. The fact that the "unless" order, or rather the "unless" aspect of the order, of 15 June 2007 was removed, or at least the appellant reasonably believed that it had been removed, was plainly a material factor that ought to have been taken into account by the ET. There are other related matters of concern. The appellant was (at least arguably) proceeding up to the beginning of the twenty-day period set aside for the trial of her claims before the ET on the assumption that the "unless" aspect of the order no longer existed. She has a real prospect of persuading the court that, up until the time that she was handed the application to strike out on Wednesday 26 September 2007, she was unaware that there would be any application to strike out her claims, and so she was taken totally by surprise when faced with that application. She was acting as a litigant in person; she was not given an opportunity to obtain legal advice in relation to the strike-out; she was not given the opportunity to prepare a witness statement in relation to the facts and matters relevant to that application. She gave her evidence orally, and says that the ET did not understand what her factual case was, and on material factual areas found against her and in favour of the respondent.
16. In my judgment, the appellant has a real prospect of succeeding in an appeal on the basis that, had she had proper notice of the application to strike out and proper time to prepare a witness statement or other documentary evidence, and to obtain legal advice, she would have been much better placed, and more fairly placed, to meet the factual case as well as the legal case that was advanced against her on the morning of 26 September 2007 on the strike-out application. For those reasons I give permission to appeal.
17. There are however two matters for which I consider she should not be given permission to appeal. One is the first of the grounds of appeal I have mentioned earlier, namely that the ET failed to take account properly, or at all, of her psychological condition or mental impairment. It is perfectly obvious that the ET was aware of her mental condition and, in my judgment, that particular point is unarguable. Secondly, there is the last of the grounds of appeal I have mentioned earlier, namely that the ET should have decided to proceed in the absence of medical expert evidence from a jointly instructed medical expert. As the EAT held, that is unarguable, and a fundamental misconception of the way in which the matter could properly have been dealt with. Both the ET and the respondent were entitled to the benefit of the evidence of a joint expert in order fairly to evaluate and adjudicate the appellant's claims. The respondent had put the appellant's medical condition in issue. The respondent was entitled to, and the ET reasonably wished to have, the benefit of the independent views of a jointly appointed expert.
18. Subject to those two grounds of appeal, for which permission to appeal is refused, I consider that the appellant should have permission to appeal.

Order: Application granted