England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st February 2011

Lord Justice Hooper:

1. This is an appeal with leave from the decision of the Employment Appeal Tribunal presided over by Burton J and dated 18 November 2008. By that decision, the Employment Appeal Tribunal upheld a judgment of the employment tribunal presided over by Mr Haynes. The appellant has not attended the hearing.
2. The effect of the judgment of the employment tribunal was to strike out the appellant's complaint of discrimination as contrary to the Disability Discrimination Act 1995 because of the way that the appellant had conducted the proceedings and because she had failed to comply with orders from the tribunal.
3. The appellant was able to persuade Etherton LJ that there were grounds of appeal although they had not been argued before the Employment Appeal Tribunal. Etherton LJ at [2009] EWCA Civ 1440 took the view that the employment tribunal had failed, or had arguably failed, to take into account the fact that an unless order had been removed, or failed to take into account that the appellant reasonably believed that it had been removed. Etherton LJ was also concerned that the appellant had not had proper notice of the application to strike out nor proper time to prepare a witness statement prior to the proceedings which led to the strike-out.
4. In order to resolve those grounds of appeal that relate to the manner in which the employment tribunal conducted its proceedings, I have looked carefully at correspondence which has been put before us by the respondent but which does not appear to have been before Etherton LJ.
5. In order to explain the background to this appeal, it is sufficient to set out a number of paragraphs from the decision of the employment tribunal.

"1. We have had to consider three preliminary applications which have been made by the Respondent. The first of these is that we should strike out the Claimant's complaints of disability discrimination because she has failed to undergo a medical examination as required by the Tribunal. They argue that her failure will prevent the Tribunal making a fair decision on whether the Claimant is a 'disabled person' and as a result the Tribunal cannot deal with any complaints under the Disability Decimation Act because the rights under that Act only applied to a disabled person.

...

3. The third application relates to the Claimant's alleged failure to comply with an order of the Tribunal that she provide information about certain allegations which happened before 25 July 2005, and are referred to in the First Claim.

4. The principle and indeed the most important application is the first one. It is the basis of the Claimant's complaints of disability discrimination that she is a disabled person because she suffers from depression. The nature of this condition is disputed by the Respondent, as they are entitled to do. The application to strike out those complaints is made under Rule 18(7)(c) and (e) of the Employment Tribunals Rules of Procedure 2004, which provide that:

'...a....tribunal may make a judgment order:

(c) striking out any claim or response... on the grounds that the matter in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious;

...

(e) striking out a claim or response... for non-compliance with an order or practice direction.'

6. To consider the applications, the history of the matter needs to be gone into by us, not in substantial detail but sufficiently to explain what has happened. The claimant has presented three claims. The first, which included a complaint of disability discrimination, came before the Tribunal first on 4 August 2006 for a Case Management Discussion (the Laidler CMD). In relation to the disability discrimination complaint the following was stated at paragraph 12:

'Whether the Claimant has a disability as defined under Section 1(1) of the Disability Discrimination Act 1995.

The claimant alleges that the disability is that of clinical depression and this is not accepted at this stage by the Respondent. There is dispute between the representatives as to whether the appropriate expert should be an occupational health physician (preferred by the Respondent) or the Claimant's preferred expert a consultant psychiatrist. The parties believed they would be able to resolve their differences in this respect but the chairman did indicate that her preference would have been a psychiatrist. It was agreed that a jointly appointed expert would be the appropriate route and the guidance in De Keyser v Wilson [2001] IRLR 324 adopted. Further orders were made in this respect below.'

Later in the Summary, Orders 8 to 11 set out a procedure and timetable for the instruction of the joint expert.

7. There were some delays in implementing those orders. The Respondent accepts that some of those delays were its responsibility. The nomination of the experts was originally to be with the Claimant but the Respondent in fact nominated some. Those were rejected by the Claimant and there was considerable disagreement over the terms of the letter of instruction. In February the Claimant nominated three doctors whom she felt to be appropriate. As a result of those disagreements the matter came to another Case Management Discussion before Mr Dabezies (the Dabezies CMD). During that discussion very practical arrangements were ordered and efforts were made to contact a Doctor Fagan who had been nominated by the Claimant and agreed between the parties. Orders were made for his immediate instruction so that a report could be obtained very quickly. (It is important to note that this was necessary because the Claims were listed for hearing in May, and the report was needed before that hearing took place.) The Claimant, who was also present, was represented by Counsel and it must be presumed that she agreed with all the orders which were made.

8. We have been taken by Mr Tatton-Brown through the subsequent history and to a number of documents. We do not intend to go through these in detail. From them it appears that an appointment was offered by Dr Fagan and then a second one. Neither of these became effective because of the failure of the Claimant to authorise the release of her medical records or copies of them to Dr Fagan.

9. Having heard the Claimant's submissions yesterday on the matter and indeed having asked her some questions ourselves, we came to the conclusion that she has a deep seated reluctance to disclose any of her medical records. The explanations that she offered about her failure to provide those records to Dr Fagan were unconvincing. He was prepared, even, to go to her General Practitioner's surgery to collect them. We consider that this was a helpful offer in view of the extreme urgency of making a report available before the May hearing. This offer was not effective because the Claimant failed to give an authority to release the copies. She states that she was at all times willing to cooperate, but the fact is that no authority was given. We were also unconvinced by her explanation about why she was unable to visit to Dr Fagan's surgery at the times he proposed. She cites difficulties in getting to his consulting room, but we find this to be exaggerated. Because of these difficulties Dr Fagan withdrew from being instructed at the end of March. We have been referred to subsequent correspondence between the Claimant and Dr Fagan but we think it is appropriate to comment that we consider this totally irrelevant to the issues which are before us.

10. The matter came for hearing on 8 May without any report having been made. Unfortunately, through no fault of either party, that Hearing had to be vacated because the Tribunal was not able to provide a full Tribunal of three members. The claimant was offered an opportunity for Case Management Discussion on that date but refused because of the need to consult her legal advisers. A minimum of case management was carried out but the question of medical reports was not discussed. A further Case Management Discussion was held on 15 June before Mr Scannell (the "Scannell CMD") and the issue of the medical report was considered there. Unfortunately the note of what took place in the Case Management Discussion Summary, which contained details of all the orders and the reason why they were made. We consider that document to be entirely clear, straightforward and unambiguous.

11. The lack of a medical report was considered an in the General Orders, on page 3, it is stated:

'1. The parties are jointly to instruct one of the experts listed by the Claimant in her e-mail 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 are to be provided by the consultant by 19 August 2007.

Subsequently in that document Mr Scannell notes:

'I have made an unless order in respect of the Claimant co-operating with the doctor because I have read correspondence from the doctor, unsolicited by the Respondent, and obviously independent, which makes it clear that the Claimant failed to co-operate with Dr Fagan in March 2007 with the result that Dr Fagan withdrew'.

11. The Claimant then wrote a series of letters complaining about the matters ordered in the Scannell CMD. It is only relevant for us to record that Mr Scannell refused to review the orders which he had made and stated at paragraph 18 of his letter of 25 July 2007:

'Mr Scannell fears that he detects an inclination on your part to now decline to see the independent medical expert. He hopes he is wrong. It is in your interest to see such an expert as soon as possible.'

12. Mr Tatton-Brown has taken us through some of the correspondence which then resulted. This shows that the Respondent made strenuous effort to make an appointment for the Claimant to see Dr Christie-Brown, who was another of the doctors nominated by the Claimant herself. There could, therefore, be no difficulty in her seeing him as he was her nominee.

13. Making such arrangements had become difficult because the Claimant had by then refused to be communicated with by the Respondent by means of email. She also indicated that she was not prepared to attend any appointment, except during the week of 23 to 27 July and then only between 10 an 2pm. Despite those constraints the Respondent's solicitors manage to get Dr Christie-Brown to alter his arrangements and make an appointment within those time constraints. The claimant failed to attend that appointment. She suggested that she had not received the message which had been left on her answering machine. This is a poor explanation because by this stage she should have realised the implications of the Tribunal insisting on the examination and report being carried out. It was after all very much to her advantage that she should attend this examination because she must have hoped and expected that it would prove beyond doubt that she suffered from the condition which she complained of. It is therefore somewhat surprising that she was not active in co-operating with the arrangements. In fact, her attitude is expressed by a comment in an email of 16 July 2007 (page 949) which she wrote to the Respondent and was substantially repeated by her in her submissions yesterday to us. Much in this email is immaterial since it relates to Dr Fagan. But what she says to the Respondent is:

'I trust that you can see from my experience this is the reason I do not propose to have any direct contact or communication with your chosen or instructed medical expert except at or during the actual consultation if so ordered by the Tribunal. I therefore stand by my position and instruction which were made clear to you in my letters sent to you on 3 July to 6 July 2007 and my telephone conversation on 6 July 2007.'

14. This is hardly the attitude of a co-operative Claimant who is seeking to obtain the necessary medical evidence to prove her own case. It is difficult, we find, to understand why she should adopt this approach. It also contrasts with the efforts she was apparently taking to obtain evidence on her own behalf. She has now produced to us a report which she obtained from her clinical psychologist on 13 March 2007, which she must have asked be sent directly to the Tribunal because that is to whom the letter is addressed. She must have taken positive steps to obtain this report. There is a further report sent to her GP from a neurologist to whom she had been referred, on 1 June 2007, which is very much in the middle of all the difficulties which we have recited. We note that she had managed to obtain a copy of this report from her doctor but had not disclosed any other part of her records which she might as easily have obtained as that document. From this we find that the Claimant was at that time quite able and willing to see doctors whom she believed would promote her case but, for reasons entirely unclear to us, was not prepared to see the independent, jointly instructed doctor whom the Tribunal had, on all the occasions which we have outlined, required her to consult.

15. Despite being offered the appointment with Dr Christie-Brown, the Claimant did not attend it. She said that she did not know about it. We doubt that this is true. She had been written to and messages left on her telephone answering machine. We have had no explanation as to why she was not able to attend a consultation during the month of August or even during the early part of September. She limited herself to that week, five days in July. We find that she has made no genuine efforts to see the joint expert.

16. We have now arrived at the commencement of why has been listed as a 20 day Hearing. This Hearing has been listed specifically to consider all of the complaints which the Claimant has made, including a number which relate to her alleged disability. We have no joint expert's report and the Claimant appears to wish to rely on the reports which I have mentioned and a further report from her General Practitioner, written in January 2005. As a result of this situation the Respondent has made the application that the complaints under the Disability Discrimination Act should be struck out."

6. In summary, that account shows that the appellant persistently failed to comply with the orders of the tribunal in relation to the obtaining of a report from an agreed joint expert. The tribunal had no doubt at all that that failure to cooperate and comply with the orders of the court had led to it not being possible to have a fair hearing. It is of note that the case had been scheduled to be heard over some 20 days in the expectation that the appellant would have cooperated.
7. Turning then to the concerns expressed by Etherton LJ, it is necessary to look at some of the orders that were made. As can be seen from the passages that I have set out, there was an unless order. However, the respondent's solicitors became concerned that that order might take effect in circumstances where it would not be fair to the appellant for it to do so. The appellant thought, rightly, that some of the delay had been caused by matters outside of the control of the appellant. Thus on 5 July 2007 the respondent's solicitors wrote both to the appellant and to the court, saying:

"I consent to the unless order being waived as it is quite clear that the delay in seeing the expert and getting the medical report is out of your control."

8. Unfortunately, the appellant did not cooperate again, on this occasion with a Dr Christie-Brown, who was the second medical expert to have been selected to be a joint expert on the issue of the appellant's alleged disability. That became clear to the respondent's solicitors by 30 July. The solicitors then wrote to the employment tribunal, with a copy to the appellant, stating that the claimant had refused to cooperate with the medical expert, Dr Christie-Brown, and therefore no medical report had been produced.
9. The respondent's solicitors then went on to ask the employment tribunal to strike out the discrimination claim. That letter was seen by Mr Lamb, the regional chairman, and on his behalf a lengthy letter was sent on 2 August 2007 to the appellant and to the respondent's solicitors. He was understandably concerned about the application to strike out as set out in the letter of 30 July. Mr Lamb therefore decided that there should be a pre-hearing review at which matters would be considered.
10. Mr Haynes, who was to be the chairman of the anticipated 20-day hearing, then took charge of the matter. The case management hearing, which it had been hoped would take place, did not take place, and so instead Mr Haynes made orders as to what should happen. He ordered that by 1.00pm on Friday 21 September 2007 (a few days before the hearing was due to start) any applications were to be served on the court and on the other party.
11. The respondent by the due time did make an application and asked for an order striking out the discrimination claims. The appellant should have received the application on Friday 21 September in accordance with the order.
12. Etherton LJ's concern that the chairman of the employment tribunal was not aware of the removal of the unless order is shown by this correspondence to be a concern that was unfounded. It is quite clear that Mr Haynes knew the whole history of this matter, knew that there had been an unless order, knew that the unless order had in effect been revoked, and knew that the hearing that the employment tribunal was to embark upon was going to involve a substantial analysis of the appellant's behaviour leading up to the 20-day hearing. That is why, in great detail, the employment tribunal examined whether or not the case should be struck out, having regard to the history of the failure on the part of the appellant to comply with orders and to co-operate by doing what was necessary in order for there to be a fair and proper hearing.
13. It is quite clear when one reads the reasons that the tribunal was not approaching this case on the simple basis of the failure on the part of the appellant to comply with an unless order.
14. Insofar as Etherton LJ was concerned that the appellant did not have time to prepare for the application that was being made, I say only this: she knew that she had failed to comply with the obligation to cooperate with two joint experts, one after the other. She must have known when that hearing started that the tribunal would be very unwilling to continue the hearing in the absence of a joint expert.
15. Fundamental to the respondent's case, as one can see in the reasons which I have already set out, was the allegation that the appellant was not suffering from that which she said she was suffering from and in order to resolve that problem a joint expert was required, and the court – and there is no issue about this – was fully entitled therefore to strike the case out.
16. The case came before this court and the application for permission to appeal was refused on paper and then, as I have said, it was renewed before Etherton LJ. The appellant on that occasion, on 26 November 2009, appeared in person and argued her case, as I say, in such a way that it persuaded Etherton LJ to give her permission to appeal.
17. Since that time there have been numerous requests for an adjournment citing medical problems. Those were refused on paper and this court refused to receive a letter from solicitors, making it clear that they would not be attending. That letter contained the following: ANNEX A.
18. This is a case which goes back to as long ago as 2007, and even further because she actually ceased attending work with her employer as long ago as 2005. There comes a time when, in my view, this court has to say that the appeal must proceed. If one was minded today to grant a further adjournment, that would involve significant expenditure on the part of the respondent. The respondent is in my view entitled now, against the protracted history of this case, to have the appeal settled here and now, and for the reasons that I have given, I would dismiss this appeal.

Lord Justice Rimer:

19. I agree.

Lord Neuberger:

20. I also agree. This appeal demonstrates the importance of the principle that a party making an application to the court in the absence of the other party should give "full and frank disclosure". In other words, a person making such an application should disclose all documents and information to the court relevant to her application. Had this important principle been observed by the appellant on her application for permission to appeal before Etherton LJ, I have little doubt that he would have taken the same line as was taken by Rimer LJ, who refused permission to appeal when the application came before him on paper. If that had been done, then the costs and court time taken up in this appeal would have been avoided.
21. If the appellant had not been acting in person, ie without legal representation, when her application came before Etherton LJ, I would have thought it right to make enquiries of her legal representatives as to why full and frank disclosure was not made before Etherton LJ. As it is, given that the appellant is not here and is not legally represented, it seems to me that is not a point which in this case can usefully be taken further. Accordingly, the appeal is dismissed.

Order: Appeal dismissed