England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
JR/8565/2015

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/04/2016

Master of the Rolls:

1. Y is of Nigerian nationality. He claims that he was born on 24 April 1999, was a victim of physical and sexual abuse in Nigeria and that he was "trafficked" to this country.
2. On 26 November 2014, Y was detained under the fast-track detention scheme as an adult. On 30 December 2014, his asylum claim was refused by the Secretary of State for the Home Department ("SSHD"). On 16 February 2015, he issued judicial review proceedings against the SSHD challenging the dismissal of his asylum claim and the decision to detain him. He was released from detention on 18 February.
3. On 12 March 2015, he was assessed by the Social Services of the London Borough of Croydon ("Croydon") as being over 18 years of age. The assessment of the social workers was based exclusively on Y's physical appearance. On 18 March, he issued judicial review proceedings against Croydon challenging the assessment. Permission to apply for judicial review was granted by Walker J on 19 May. On 19 July, Blake J quashed the refusal of asylum and stayed Y's claim for damages for wrongful detention pending the resolution of his age assessment challenge.
4. As Collins J said in A v London Borough of Croydon [2009] EWHC 939 (Admin), there are many advantages for individuals who arrive in the UK in persuading the authorities that they are under the age of 18. He identified some of them at para 1 of his judgment.
5. On 1 September 2015, UT Judge Allen gave directions in the age assessment challenge proceedings. These included (i) that the matter be listed for a 4 day fact-finding hearing in order to determine Y's date of birth; and (ii) that Y be granted permission to rely on reports by Dr Juliet Cohen, a forensic physician, Dr Susannah Fairweather, a child and adolescent psychiatrist and Ms Christine Beddoe, specialist adviser on human trafficking and child exploitation.
6. The trial was fixed to start on 8 February 2016. On 20 November 2015, Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray) by Professor Roberts, (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision of this court in Starr v National Coal Board [1977] 1 WLR 63 to which I shall refer in some detail later in this judgment.
7. The application was refused by UT Judge McGeachy on 8 December. He gave a short ex tempore judgment which included the following:

"My decision is this. Although I have some considerable sympathy with the application made and I think it is most unfortunate that the applicant's representatives have come to the conclusion that they will not cooperate I consider that the order sought is too draconian for me to either stay the proceedings or to dismiss the proceedings at this stage.

2. I consider that the fact that the applicant's representatives have decided that he should not cooperate with a dental examination, which I consider might well have been useful, let alone the further age assessment to be carried out by Croydon is a matter on which it may well be that you would wish to address me at the hearing. I presume that is what you would want to do but I am not prepared to bring the proceedings to a halt now."

8. Further light is shed on the judge's thinking by his decision of 16 December in which he explained why he refused permission to appeal to this court. He said:

"(2) The grounds of appeal assert that I had failed to give reasons for not granting the application given the terms of the judgment in Starr v NCB [1977] 1 WLR 63. In my oral judgment I gave reasons for my decision. While I did not specifically refer to the judgment in Starr the reality is that that case can be distinguished from the present. It is of note that in Starr it had been conceded that it was necessary for the defendants, in preparing their defence to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff. That is different from a case such as the present in which there is a challenge to a decision which has already been made. Moreover, while the case in Starr was a private law matter this is an action in public law where there is a public interest in the efficient disposal of the application, particularly as it relates to the age of the applicant who claims to be a child.

(3) I was entitled to take into account the efficient disposal of that application and that is why I stated that staying the proceedings at this stage was a decision which was too draconian: staying the proceedings would not resolve the issue before me. Given that the matter was to proceed to trial at the beginning of February 2016 it was appropriate that satellite litigation should be discouraged.

(4) I consider that my decision was an appropriate use of my case management powers in that it is a clear aim of those powers to ensure the efficient disposal of an application."

The grounds of appeal

9. Mr Holbrook submits that the judge erred in holding that the Starr principles did not apply in respect of Y's refusal to consent to (i) an age assessment by two social workers employed by Croydon, (ii) a dental age assessment by Professor Roberts and (iii) a psychiatric assessment by Dr Tony Davies. He should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon's application to stay or strike out Y's claim unless he consented to each of the three assessments sought.

The Starr principles

10. The case of Starr concerned a claim in negligence for damages for personal injury, namely ulnar nerve compression. It was conceded by the plaintiff that it was necessary for the defendant, in preparing its defence, to be advised by a consultant neurologist who had had the opportunity of examining him. The defendant had nominated Dr X for that purpose. The plaintiff objected to examination by Dr X without stating his reasons. But he said that he was willing to be examined by any other consultant neurologist of similar qualification and experience to Dr X. The defendant applied for a stay of all further proceedings until the plaintiff submitted to an examination by Dr X. This court upheld the stay that had been granted by the judge.
11. At p 70H, Scarman LJ said that in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are "two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court". The first is the plaintiff's right to personal liberty. The second is an equally fundamental right, namely the defendant's right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. He went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant. Applying these principles to the facts of the case, Scarman LJ said at p 72H:

"I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence."

12. At p 75H, Geoffrey Lane LJ said:

"…the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination."

13. Cairns LJ said much the same at p 77C.

Discussion

14. It is unclear whether the judge addressed the Starr principles or not. It would have been surprising if he had not considered them, because they had been the subject of full argument before him. Paras 1 and 2 of the judgment might suggest that he accepted that they did apply, but that he was not willing in the exercise of his discretion to strike out the claim or order a stay because such a remedy was too "draconian" or in modern parlance "disproportionate". On the other hand, in his reasons for refusing permission to appeal, he sought to distinguish Starr on the grounds that (i) it had been conceded in Starr that it was necessary for the defendant to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff; and (ii) Starr was a private law claim, whereas the present claim was a public law claim.
15. On balance, I incline to the view that the judge did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff. Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon's application was an appropriate use of his case management powers to ensure the efficient disposal of the application.
16. I would reject these reasons and substantially accept the submissions advanced by Mr Holbrook. As regards the first reason, the fact that the plaintiff in Starr conceded that it was necessary for the defendant to be advised by a consultant neurologist who had had the opportunity of examining the plaintiff was not essential to the reasoning of the court. The concession meant that the court could proceed on the basis that the medical examination was necessary for the proper conduct of the defence. If that had not been conceded, the court would have had to decide for itself whether the examination was necessary. The concession is a basis for distinguishing Starr from the present case on the facts. It cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon's defence. It would seem that the judge was probably satisfied that the dental examination and the examination by the two social workers were reasonably necessary because he said in his judgment that he had "considerable sympathy with the application"; he thought that it was "most unfortunate that [Y's] representatives have come to the conclusion that they will not cooperate"; and he considered that a dental examination "might well have been useful, let alone the further age assessment to be carried out by Croydon".
17. As regards the second reason, there is no basis in principle for confining the Starr principles to private law litigation. I accept that there are important differences between private and public law litigation. These differences are, for example, recognised by the fact that they are subject to different procedural regimes. In most judicial review litigation, the court does not hear oral evidence or make findings on disputed questions of fact. That is why there is little scope for the application of the Starr principles in public law cases. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred applies in any litigation. In a case where one party wishes to have an examination of the other party, the other fundamental common law principle identified by Scarman LJ comes into play. That is so whether the case involves a private law or a public law claim. Although the age assessment issue in the present case arises in judicial review proceedings, it is common ground that the issue is one of fact for the court to determine on the evidence adduced before it: see R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2537. It follows that there is no reason to hold that the Starr principles do not apply merely because the issue arises in public law proceedings.
18. The third reason is quite difficult to pin down. Mr Berry makes much of the point that this was a case management decision involving an exercise of discretion in respect of which this court should allow the judge a generous ambit: see, for example, Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at para 38 per Chadwick LJ and Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33 per Lawrence Collins LJ.
19. In his skeleton argument, Mr Berry has subjected Croydon's conduct of this litigation to critical scrutiny. He submits that, in determining whether Croydon's request for Y's consent and his refusal to give it were reasonable, it is necessary to have regard to its conduct of the litigation. He says that Croydon was in breach of the case management order of 17 September 2015 and was late in filing its evidence. He repeats the submissions made by Ms Moodie on behalf of Y for the hearing on 8 December 2015, which included that "[Croydon's] conduct is placing [the 8-11 February 2016] listing in jeopardy or alternatively [Croydon] is suggesting an unrealistic revised timetable that places [Y] at a considerable disadvantage in considering [Croydon's] evidence and preparing his evidence in reply in the limited time left before trial".
20. It may be that this is what the judge had in mind when, in refusing permission to appeal, he referred to the "efficient disposal" of Croydon's application. But he made no reference to this factor in his judgment. The only reason he gave for refusing the application in the judgment was that it was "too draconian". There is no hint in this of the idea that he was exercising his discretion against Croydon because of its failure to adhere to the procedural timetable, still less that, if he made the order sought by Croydon, the hearing date would be in jeopardy. If the judge had thought that the hearing date would be in jeopardy, it is unlikely that he would have said without qualification, as he did at para 2 of his judgment, that a dental examination "might well have been useful". He would surely have gone on to say that, if he acceded to the application, the hearing date would be put at risk.
21. I accept that, if the judge had decided that it would have been necessary to move the hearing date if he made the order sought by Croydon, that could well have been a good reason for not exercising his discretion to make the order even if the grounds for making it were otherwise made out. The judge had to seek to give effect to the overriding objective of dealing with cases "justly" when exercising any power given to him by the Civil Procedure Rules: see CPR 1.2(a). In any event, I am not satisfied that there were grounds for refusing Croydon's application based on its conduct of the litigation. Although Croydon had failed to comply with some of its procedural obligations, these could not have justified a decision to refuse its application unless at least they caused Y to suffer significant prejudice. If acceding to the application had jeopardised the hearing date, this would have caused prejudice which, as I have said, might have justified a refusal of the application. But there is no finding by the judge that the trial could not have started on 8 February 2016 if the order had been made and there is no material on which this court could make such a finding. The evidence before us shows that Professor Roberts could have seen Y before Christmas 2015. There is no doubt that Croydon's two social workers could have done so as well. The only doubt is in relation to the consultant psychiatrist, Dr Davies. There is no evidence before us as to when he could have seen Y. In my view, it would be quite wrong to uphold the judgment solely because it is possible that the order sought by Croydon would have necessitated an adjournment of the hearing date on account of the time it would have taken for Dr Davies to have examined Y and produced a report. This is far too uncertain a basis on which to reach such a conclusion.
22. Having rejected the three reasons relied on by the judge, I am satisfied that the judge should have made the order sought by Croydon. It was reasonably necessary to enable it to defend the challenge to its age assessment. Y's refusal to give his consent was unreasonable.
23. By way of a postscript, I wish to add two points. First, although Y's expert witnesses have diagnosed him as suffering from complex PTSD, it is not suggested on his behalf that any of the three requested assessments would cause him psychological harm. Secondly, it is said that the method of assessing age using mean data taken from dental x-rays is controversial and unreliable. But it is impossible for the court to reach a conclusion on whether this is correct or not. In my view, it cannot be a reason for refusing the order. No doubt, the reliability of the assessment based on dental x-rays will be investigated at the hearing.

Conclusion

24. For these reasons, I would allow this appeal.

Lady Justice Macur:

25. I agree.

Lord Justice Lindblom:

26. I also agree.