England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MR JUSTICE WILKIE
UKEAT004312M

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th July 2013

Lord Justice Longmore:

Introduction

1. On 24^th August 2011 Judge Hall-Smith sitting alone in the Employment Tribunal ("the ET"), after a hearing on 11^th May 2011, struck out Ms Tyica Riley's proceedings because, in the light of the medical evidence, it was regrettably not possible to have a fair trial of those proceedings in the foreseeable future. Ms Riley had appeared by counsel on that occasion. She then appealed to the Employment Appeal Tribunal ("the EAT") and was again represented by counsel. Wilkie J, sitting alone, observed (paras 46 and 54) that there was a potential disconnect between two lines of authority in relation to the appropriate approach of the EAT in strike-out cases. One, exemplified by Teinaz v London Borough of Wandsworth [2002] 1RLR 721 and Andreou v The Lord Chancellor's Department [2002] 1RLR 728, was to say that the EAT could only intervene on the ground of Wednesbury unreasonableness or, as it is often called, perversity; the other approach, exemplified by Terluk v Berezovsky [2010] EWCA Civ 1345 and Osborn v The Parole Board [2010] EWCA Civ 1409, required the Employment Tribunal to reach the "right" conclusion on the question whether it was "fair" to strike out the proceedings and, if the EAT considered that it had reached the wrong decision, the decision would be set aside. Wilkie J said that, if it were decisive, he would follow the second approach and decide whether the decision of the ET was fair. So doing, he concluded that the decision to strike out the proceedings was the fair one for all concerned (including the respondent).
2. Ms Riley then sought permission to appeal to this court and was granted permission on the papers by Elias LJ on 8^th November 2012 because these was what he called an "interesting" question, identified by the EAT, as to whether the appropriate approach was the Wednesbury test or the fairness test. He thought that, if the latter test were the correct one, there was an arguable case that the ET had erred.
3. Two and a half months after Elias LJ had given permission this interesting question was resolved by this court in favour of the Wednesbury test, in O'Cathail v Transport for London [2013] ICR 614. At para 44 Mummery LJ (with whom Etherton and McFarlane LJJ agreed) said:-

"The crucial point of difference from Terluk's case is that decisions of the employment tribunal can only be appealed on questions of law, whereas under the CPR the appeal is normally by way of review and the decision of a lower court can be set aside, if it is wrong, or if it is unjust by reason of a serious procedural or other irregularity in the proceedings. In relation to case management the employment tribunal has exceptionally wide powers of managing cases brought by and against parties who are often without the benefit of legal representation. The tribunal's decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. That is the approach, including failing to take account of a relevant matter or taking account of an irrelevant one, which the Employment Appeal Tribunal should continue to adopt rather than the approach in Terluk as summarised in the headnote [2012] ICR 561 quoted above. It is to be hoped that this ruling will put an end to the "apparent confusion in authority" on the point pointed out by Wilkie J in Riley v Crown Prosecution Service (unreported) 13^th June 2012, at paras 55-56."

4. Accordingly the interesting question posed by Elias LJ for this court no longer arises; the appeal has to be disposed of but by reference to the Wednesbury test and can only succeed if there was an error of legal principle in the ET's approach or perversity in the outcome.
5. Three days before the appeal was due to be heard, Ms Riley applied for it to be adjourned mainly on health grounds. Mummery LJ refused that application on paper but said that it could be renewed at the hearing. At that time her solicitors were on the record. By the time the appeal was called on, on Thursday 18^th July, there was an application by Ms Riley's solicitors to come off the record and a renewed application for an adjournment on the basis that Ms Riley wanted to see if she could instruct different counsel from those who had previously represented her. We refused that application for reasons we said we would give in our judgment. Those reasons are:-

i) eight months had elapsed since Elias LJ had given permission to appeal during which time there had been ample opportunity to instruct fresh counsel if Ms Riley had desired to do so;

ii) grounds of appeal had been settled with legal advice and two skeleton arguments for the appellant had been served one of which had been "prepared for the appellant";

iii) the interesting point, for the resolution of which Elias LJ gave permission to appeal, no longer arose, so that legal argument no longer needed to be submitted; and

iv) fairness to the respondent required the appeal, which related to events starting in 2006 and continuing thereafter, to be resolved.

Factual and Procedural History

6. In February 2005 Ms Riley, who is and was a qualified solicitor, was promoted to the post of Senior Crown Prosecutor in the Crown Prosecution Service ("the CPS"). In August 2006 she raised a formal complaint with the CPS ("the first grievance") alleging bullying and harassment by a fellow employee which was upheld in part. In November 2007 she was transferred to the Lewisham team. On 12^th August 2008 she went off sick. She never went back to work and was still sick by the date of the ET's hearing on 11^th May 2011. On 10^th September 2008 Ms Riley raised a second grievance naming two CPS employees other than the one the subject of the May 2007 grievance. A Ms Sandie Hebblewaite was appointed to hear her grievance on 5^th December 2008. On 10^th December 2008 the first Occupational Health report was in place, which said that Ms Riley was not currently fit to return to work but management action was recommended to address her concerns.
7. On 10^th June 2009 the second grievance, against the 2 fellow employees, was not upheld. Ms Hebblewaite suggested that the allegations were false and made maliciously. Arising out of that, on the 19^th June 2009, Ms Riley was invited to a disciplinary hearing for making false allegations. On 20^th August 2009 there was a second Occupational Health report, which said that Ms Riley was not fit to return to work or attend the disciplinary process which was described as "maybe a significant contributing stressor to Ms Riley and that the removal of this stressor will significantly improve her ill health". In August 2009 Ms Riley's appeal in respect of the conclusion of her first grievance was rejected.
8. On 16^th September 2009 Ms Riley issued her first ET proceedings. The claims made started in December 2007, in respect of alleged race discrimination, and September 2008, in respect of alleged disability discrimination and whistle blowing. On 1^st October 2009 there was a further Occupational Health report which said that Ms Riley was not expected to make a recovery any time soon. She wanted her original grievance re-investigated and that was the only possible solution. On 16^th October 2009 the CPS served their ET3 in relation to the first ET proceedings. On 23^rd December 2009 the CPS employee's appeal against the finding against him in respect of Ms Riley's first grievance was allowed and on the 17^th February 2010 her appeal against the rejection of her second grievance was initially rejected. It was again rejected on the 23^rd March 2010.
9. On 21^st April 2010 Ms Riley issued her second ET proceedings. This arose out of the re-employment of the CPS employee the subject of the first grievance. The claimant raised allegations of bullying by him during the period May – August 2006. The CPS's ET 3 in that case was filed on the 21^st May 2010. On 28^th May 2010 Ms Riley informed the respondent she was not fit to attend the disciplinary hearing which had been originally scheduled for 9^th June. On 9^th July 2010 a psychiatric report was prepared by Dr Naguib. That report said Ms Riley was "unable to cope or attend any legal proceedings or hearings". It was difficult to comment on prognosis but Dr Naguib expressed the view that her problems were "a direct result of her on going legal battle". On 19^th July 2010 the disciplinary hearing commenced. Ms Riley was represented on that occasion but, on 3^rd August, she informed the respondent that she was not in a position to provide a written submission due to her ill health.
10. On 6^th August 2010, at a case management discussion relating to the first two ET proceedings, the case was listed for a hearing of 20 days (4 court weeks) beginning the 3^rd May 2011. This was to my mind, a significant legal step not only because 4 continuous weeks is a substantial time to require the ET to devote to a case brought by a single claimant (and exclude for other claimants) but also because Ms Riley must have had some hopes that she would be well enough to participate in her case on that date. On 20^th August 2010 a further Occupational Health report found that Ms Riley was not fit to return to work or attend a disciplinary hearing. It said that her condition would not change in the foreseeable future. Neither Ms Riley nor her advisers saw fit to inform the ET of this prognosis in relation to her disciplinary hearing.
11. On 29^th August 2010 Dr Naguib wrote an addendum psychiatric report and, on the 13^th September 2010, a note from her GP said Ms Riley was not fit to attend the disciplinary hearing. On 14^th September 2010 the claimant was summarily dismissed for misconduct namely making false allegations.
12. On 13^th December 2010 Ms Riley issued a third ET case. The claims made in those proceedings arose out of the rejection of her grievance appeal and her summary dismissal. The respondent responded to that claim on the 25^th January 2011. Meanwhile the date for the 4 week hearing was approaching. Despite a case management discussion on 15^th March, the first indication of any difficulty only came on 26^th April when a Dr Aileen Alleyne said that Ms Riley was not in any fit state to attend the ET hearing on 3^rd May 2011.
13. In spite of this on 27^th April 2011 she launched a fourth ET claim. That claim complained about the rejection of Ms Riley's appeal against dismissal.
14. On the same date (27^th April 2011) there was a second report from Dr Naguib who said that Ms Riley was "mentally and physically unfit at the present time to attend the court hearing on the 3^rd May". He also said that Ms Riley's depression was disabling her from moving on and "she feels stuck until justice happens". An application was made by Ms Riley to adjourn the hearing. That application was put over to be considered on the 3^rd May 2011, the first listed day for the 20 day hearing. Thus the 3^rd May hearing was listed as a case management discussion/hearing to consider the application to postpone the full merits hearing. The start of the full merits hearing was postponed till the 4^th May. On 3^rd May Ms Riley's counsel renewed her application for postponement on the grounds of her state of health. This was opposed by the respondent. The judge, on 3^rd May, decided to postpone further consideration of the matter until the 11^th May and also decided that on that date he would consider whether the claims should be struck out, amongst other grounds, on the ground that it was no longer possible to have a fair hearing, pursuant to Rule 18(7)(f) of the Rules. The judge also directed that Dr Naguib should attend the hearing on the 11^th May to give evidence.
15. On 11^th May Dr Naguib was in attendance. In addition, there was a medical report from the respondent's expert, Dr Wise, completed on the 8^th May based on an assessment of Ms Riley conducted on the 6^th May. Dr Wise was also in attendance at the Tribunal on the 11^th May.

The Medical Evidence

16. Dr Naguib made a further report of 6^th May. He had been asked "Can you say with any certainty whether Ms Riley is likely to recover in the next 3 months?". He responded "It is difficult to predict with certainty, but I can say there is a possibility that Miss Riley is likely to recover in the next 3 months … as I am not involved in treating Miss Riley's depression it is difficult to predict a response to medication and therapy with certainty". He was also asked "If not, can you say with any certainty when Miss Riley is likely to recover?" His response was "… There are different ways of treating depression and Miss Riley should be referred to see a psychiatrist in her local psychiatric hospital. This is to review her current treatment and possibly to increase the dose of the anti-depressant or to try another form of anti-depressant". The position, therefore, was that he could not say with any certainty when Ms Riley would recover sufficiently to participate in her proceedings.
17. Dr Wise's report of 8^th May also contained his response to a number of questions including:-

"Is Miss Riley now well enough to conduct a trial starting on or after the 12^th May 2011, if not why not?"

His answer was that she was not well enough to conduct the trial starting on or after the 12^th May 2011 by reason of her severe depression without psychotic symptoms. He was also asked whether he agreed with Dr Naguib's report of 27^th April 2011 and whether he could provide any firm prognosis for Ms Riley so as to be able to identify a date upon which she is likely to be ready to commence a trial or whether it was his view that she was unlikely to recover until after such a trial. He responded agreeing with what Dr Naguib had said to the effect that Miss Riley's depression was disabling her from moving on with her plans and that she felt stuck until justice happens. He added that by reference to the STAR*D protocol about 70% of patients had a remission of their illness by the time the fourth tier of the protocol was completed, which would take 24 months on the NHS but, due to the presence of PTSD in the past and the presence of ongoing psychosocial stressors, namely financial issues and the on going litigation, probabilities were less than those "stated above". He concluded that "As litigation is a major stressor it may well be the case that recovery is unlikely until after there is a solution in one manner or another".

18. Dr Naguib in oral evidence about the two year point said that he would not disagree with Dr Wise's opinion.

The Employment Judge's decision

19. Judge Hall-Smith summarised the contentions of the parties and the medical evidence saying :-

"24. Both experts agreed that litigation was a significant stress and that the determination of the litigation would be a step in the possible recovery of the claimant. The difficulty I am faced with, what Mr Cohen described as the chicken and the egg situation, is that the claimant is not fit to attend the hearing to achieve determination of finality of the litigation and accordingly she will continue to be affected by the stress or worry associated with litigation which, until it is resolved one way or another, will not form part of the process towards her recovery. Dr Wise's view, that the claimant's probability of entering remission is less than the 70% probability of achieving remission, when looking at clinical population, was not essentially challenged.

25. In my judgment, on the basis of the totality of the medical evidence the claimant will not be fit enough to attend the hearing in 12 months, and on the balance of probabilities, not before the expiry of 2 years, having regard to the severity of her condition and Dr Wise's opinion that she falls outside the statistical bases of a conclusion 70% of the public would achieve recovery by the end of the fourth tier of the STAR*D protocol."

20. Against the background of those findings of fact, the judge then considered what he was to do. The earliest 20 days slot was some 7 months or more away. The judge rejected the contention, made on behalf of Ms Riley, that he should adjourn the case until then, but give directions in the form of unless orders, which might result in the claim being struck out. He regarded that approach as a contrivance.
21. He also rejected the respondent's suggestion that he should simply refuse the requested postponement and, on that basis, dismiss the claim as having been abandoned. The judge rejected that because of the medical evidence that Ms Riley was not in a position to give instructions to those advising her.
22. The judge then decided that he had to take a view and reach a conclusion as to whether a fair trial was possible. He set out a series of contentions made by the respondent as to why a fair trial was not achievable in the circumstances of the case. These contentions may be briefly described as:-

i) the mounting costs;

ii) the dimming of recollections of the respondent's witnesses, which the judge thought had some substance;

iii) the worry and stresses of the respondent's witnesses, which, to some extent, the judge thought had merit;

iv) the fact that some witnesses had left the respondent's employment, which the judge did not regard as presenting an insuperable difficulty; and

v) the absence of any definite prognosis of any recovery sufficient to take part in the proceedings in the foreseeable future.

23. He then concluded that, if he took account of (1) the fact that there was no prognosis of when, if ever, Ms Riley would be in a position to be well enough to take part in the proceedings, and (2) the balance of prejudice to either party, a fair trial was not possible.

Disposal

24. On the basis of Judge Hall-Smith's findings Wilkie J came to the same conclusion because he could detect no error of law in the judge's approach on his decision. The only question for us is whether there was any error of law which Wilkie J failed to detect.
25. Ms Riley submitted that it was wrong to strike out her proceedings when she had not been in breach of any substantial order. She also said that, since her medical condition had been caused by the CPS in the first place as a result of bullying, intimidation and discrimination by its employees, it was wrong for the CPS to take advantage of its own wrong to say that a fair trial was no longer possible. She also submitted that the judge was wrong to give as much weight as he did to the evidence of Mr Wise and wrong to say, as he did, that the "foreseeable future was a period of 18 months at the outside". She said that the only fair course was that she should be given a further opportunity to present her case at the next available date when 20 days would be available which would have been (and this was agreed) in January 2013.
26. None of these submissions persuaded me that Judge Hall-Smith erred in law. There was indeed a chick and egg situation as the judge said in para 25 of the judgment. The court could not assume in advance of any hearing that that was the fault of the CPS. There was in the end agreement between the medical experts that, even after two years, the probability was that Ms Riley would not be well enough to participate in any hearing. The judge's reference to a 18 month period as being the longest period he could contemplate as being right for an adjournment was not therefore legally relevant. On any view an adjournment for 7 months would be a pointless exercise.
27. It is important to remember that the overriding objective in ordinary civil cases (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense. Article 6 of the ECHR emphasises that every litigant is entitled to "a fair trial within a reasonable time". That is an entitlement of both parties to litigation. It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time. Judge Hall-Smith correctly found assistance in remarks of Peter Gibson LJ in Andreou v The Lord Chancellors Department which are as relevant today as they were 11 years ago:-

"The Tribunal in deciding whether to refuse an adjournment had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights, having regard to the terms of Article 6): they had to include fairness to the respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those accused of those allegations, who must take very seriously what is alleged against them. It is rightly considered that a complaint such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. This case concerned events which took place very many years ago, well outside the normal three months limitation period. The Tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened Employment Tribunals are these days."

28. It would, in my judgment, be wrong to expect Tribunals to adjourn heavy cases, which are fixed for a substantial amount of court time many months before they are due to start, merely in the hope that a claimant's medical condition will improve. If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to a Tribunal. Like Wilkie J I can see no error of law and would dismiss this appeal.

Lord Justice Rimer:

29. I agree.

Lord Justice Mummery:

30. I also agree.