United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS JENNIFER KAVANAGH (of Counsel) Instructed by: Ms A Browning Henley & District Citizens Advice Bureau Market Place Henley-on-Thames Oxfordshire RG9 2AQ
For the Respondents	MR RICHARD OULTON (of Counsel) Instructed by: Mr N Barnett Messrs Hewetts Solicitors 55-57 London Street London RG1 4PS


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Reading Employment Tribunal, Miss Thurlow, against an order made by the tribunal at a hearing held on 29th March 1999, and promulgated on 9th April, that she pay the costs of that day to be taxed on County Court Scale II.

Background

1. The applicant was employed by the first respondent company, of which the second respondent, Mr Hills was Managing Director, from 5th January until 19th October 1998, when she resigned.
2. On 7th November 1998 she presented a complaint of sex discrimination against the respondents to the Employment Tribunal. In essence, she makes complaint of a course of persistent sexual harassment by employees of the first respondent, including the second respondent, for whose acts the company is vicariously liable. The claim is resisted.
3. She has been represented by the Reading Citizens Advice Bureau, which in turn instructed Counsel, Ms Kavanagh. The respondent has been represented throughout by solicitors Messrs Hewett, who in their turn instructed Counsel.
4. The case was listed for a substantive hearing on 29th and 30th March 1999. On 29th March the tribunal adjourned the proceedings to be re-listed for three days. On that occasion the tribunal made the costs order under appeal. A three day hearing took place on 6th to 8th September. The case has not been concluded and is to be resumed for a further three days.
5. We should make it clear that the merits of the claim are not in issue before us today for the purpose of this appeal and we make no comment on the merits which will be a matter for the Employment Tribunal hearing the substantive case.

Medical evidence

6. In preparing the applicant's case her advisers obtained three medical reports in February 1999. One was from a counsellor, Louise Walker, dated 9th February; a second was from a remedial therapist, Kim Sherlock, dated 10th February and the third, dated 11th February was from the applicant's general practitioner, Dr Clare Craik. It is the general practitioner's evidence with which we are principally concerned in this appeal.
7. In her Originating Application the applicant had said that the sexual harassment to which she alleged she had been subjected during her employment caused her to become ill with stress and at the end of September 1998 her doctor had prescribed her anti-depressants.
8. That was confirmed in Dr Craik's report of 11th February, which sets out the applicant's medical complaints and treatment prescribed to her in September, October and November 1998. The details were taken from the applicant's medical records, Dr Craik not having seen the applicant on any of her three visits to the surgery on 2nd September, 22nd October and 25th November 1998.
9. Those three reports were disclosed to the respondents' solicitors under cover of a faxed letter from the CAB dated 12th February.
10. On 15th February the respondents' solicitors replied and in that letter said this:

"Finally, you will be aware we spent some considerable time with Counsel during the afternoon of Friday, 12 February 1999. During this conference it transpired that your Counsel, Jenny Kavanagh, had spoken at length with our Counsel regarding this matter and it was confirmed to her that the witnesses you asked us to confirm would be attending will indeed be present. During the conference, we were also to consider the reports filed by Claire Craik, Louise Walker and Kim Sherlock. Unfortunately, Counsel takes the view that your Client's medical evidence is not presented in a manner that can reasonably be relied upon. In the circumstances, we will have to ask the Tribunal to disregard this medical evidence if your Client intends to rely upon the same.

However, it may go some way to qualifying your Client's medical evidence if your Client were to provide us with voluntary disclosure of all her medical records and notes. We would therefore invite you to offer of voluntary disclosure of these documents. If you are unable to comply with this request then we must put on record that we reserve the right to comment on the medical reports if necessary at the hearing and ask for any appropriate orders to be made."

11. It appears that the applicant's advisers went back to the Dr Craik and on 1st March she wrote them a letter which set out further information about the applicant's past medical history. In particular, there is reference to an incident on 25th September 1996 whilst she was holiday when she was allegedly attacked by her boyfriend in Tenerife. She reported that he had pulled her up by her head and swung her roughly. She was then seen in the general practitioner's surgery two days later and examination was made of her neck movements. It was suggested that she may need some support counselling. She was then see again twice in October 1996 and was prescribed Diazepam. On 12th February 1997 she was seen by the Victims Support counsellor. She then felt that she became worse again, was getting nightmares, and was crying during the consultation. She was then prescribed Prozac and was seen again on 12th March 1997 when she was feeling better. The nightmares had ceased, but she put on Prozac for at least a further two months. She was then reviewed again on 14th April 1997, Prozac was again prescribed. On 19th August 1997 she complained again of panic attacks and not sleeping. She was seen again on 27th August and then again on 19th January 1998, when she again reported a fear of flying and was prescribed Diazepam. That concluded the letter and the relevant history up to entries which Dr Craik had previously documented starting from 2nd September 1998.
12. Having received that letter advice was taken from Ms Kavanagh and she tells us that she advised that the letter should not be disclosed to the respondent. She tells us that she regarded the medical history there set out as irrelevant to the issues in the case.
13. Ms Kavanagh was unable to attend the hearing on 29th March, and the brief for the applicant passed to Ms Martins of Counsel.

The tribunal hearing

14. Outside the tribunal room a discussion took place between Counsel, Ms Martins and Mr Trafford, who then appeared on behalf of the respondents, about the medical evidence which had hitherto been disclosed. During that conversation Ms Martins disclosed for the first time Dr Craik's letter of 1st March. There is some dispute before us as to whether or not a joint application was then made for an adjournment, but we are prepared to assume that an application was made by Counsel on behalf of the respondents to the tribunal for orders for disclosure of the applicant's medical history, that is both medical records and her counsellor's records, to be made to a doctor nominated by the respondents. That was coupled with an application for an adjournment so that those investigations could be completed before the substantive hearing began.
15. Those applications were acceded to by the tribunal, which also ordered the applicant to pay the costs of the day thrown away by the adjournment. Hence this appeal.

The Appeal

16. Ms Kavanagh submits that it was not necessary for the hearing to be adjourned; that the medical records merely went to issues of quantum; that the hearing should have continued as to liability and since it would not have been completed within the two days allotted, then disclosure could have taken place in the interim before the resumed hearing took place. In these circumstances, she submits that no reasonable tribunal properly directing itself would exercise its power to postpone the hearing in those circumstances.
17. Further, she submits that fault lay with the respondents in not seeking an order for disclosure of the applicant's medical records as had been foreshadowed in their letter of 15th February prior to the substantive hearing on 29th March. She submits that the letter of 1st March from Dr Craik is not relevant to the issues in the case and ought not of itself to have formed a reason for adjourning the substantive hearing.
18. Further, she submits that even if it fell properly within the tribunal's discretion to adjourn the proceedings and to make an order for costs, then an order for costs on County Court Scale II was excessive. The tribunal ought to have exercised its powers to assess costs there and then which power is limited to ordering assessed costs up to £500. For these reasons she invites us either to set aside the costs order altogether or at the least to vary it so as to reduce the costs burden placed on the applicant.
19. In response, Mr Oulton submits; first, that in failing to disclose the 1st of March letter from Dr Craik when it was received, the applicant's side were guilty of partial voluntary disclosure. He relies on the principles set out by Waite J in Birdseye Walls Ltd v Harrison [1985] ICR 278, to the effect that if a party is to disclose documents, we interpose that would include medical evidence, then the disclosure must be full and not partial. Secondly, he submits that it was the applicant who put her medical condition in issue from the outset by her Originating Application. She then disclosed some medical evidence in support of her case that the treatment which had allegedly suffered at the hands of the respondents had caused her ill health. In these circumstances, the respondents, he submits, were perfectly entitled to require access to the applicant's full medical history.
20. It appears from a witness statement, which was served in the proceedings from Mr Hills, the second respondent, that he had had a conversation with the applicant's father which referred back to the incident with her boyfriend in September 1996. Ms Kavanagh submits that in these circumstances the respondent was on notice as to her medical history; that, submits Mr Oulton, makes it even more important that they should have proper access to the medical notes.
21. Next, he submits that the respondents' solicitors' letter of 15th February should not be viewed as a veiled threat as it was put by Ms Kavanagh, rather that they were keeping their options open. It was only as a result of the disclosure of the letter of 1st March that the respondents were properly able to apply for an adjournment of the substantive hearing on 29th March.
22. As to the point that the tribunal ought to have continued with the substantive hearing and then when that was not completed, give time for disclosure of medical records to take place, he points out that in the ordinary course of events the applicant will give evidence first and it is only right that the respondents should have the medical history in mind when it came to cross-examining her on her evidence.
23. Finally, as to the question of the order for costs itself. He submits that the tribunal has discretion as to whether or not to assess costs there and then or to make an order for taxation of costs, now a detailed assessment. Since this was a claim for more than £3,000, if the tribunal in its discretion took the second course, then an order for costs on Scale II was the appropriate order to make.

Conclusion

24. First, the question of partial disclosure. We accept Mr Oulton's submission that having disclosed the first report from Dr Craik, it was wrong not to disclose the further letter of 1st March 1999 when it was received in order to provide a full medical picture. Once that report had been disclosed on the morning of the hearing, it seems to us, that the tribunal was perfectly entitled to make the order for disclosure of medical records and counsellors' records sought by the respondents. The question then arises as to whether or not it was within the proper exercise of the tribunal's discretion to adjourn the whole hearing rather than to start and then during the ensuing gap in proceedings allow discovery to take place. In our judgment, the tribunal was perfectly entitled to adjourn the whole matter for the reason given by Mr Oulton. It seems to us that where the applicant has put her medical condition in issue, then it is only right that the respondent should know the full medical background before ever she starts to give evidence in the case. For this purpose we draw no distinction between matters of liability and issues of quantum.
25. The appeal has been directed particularly to the tribunal's finding in paragraph 2 of the Order made on 29th March that the applicant had acted unreasonably. First, we think that that was a permissible finding in the circumstances of this case, but even if it were not, we draw attention to Rule 12(4) of the Employment Tribunal Rules of Procedure which provides for orders for costs being made as a result of a postponement of the hearing being ordered. It is clear from the decision of this tribunal in Ladbroke Racing Ltd v Hickey [1979] ICR 525, that that is a free-standing power to order costs in the particular circumstances where costs are thrown away by an adjournment. The requirement that a party should have acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably under Rule 12(1) does not apply when considering an application under Rule 12(4). For this further reason, we are quite satisfied that the tribunal was entitled to make the order for costs thrown away.
26. So far as the direction that the costs should be taxed on Scale II is concerned, we again accept Mr Oulton's submission. This was a claim in excess of £3,000 and under ordinary County Court practice costs on Scale II is the appropriate award where a detailed assessment is to be made. It is within the tribunal's power to assess costs there and then but there is no requirement that they should do so. That is a matter for their discretion. We cannot say that by ordering costs on Scale II that they have exercised their discretion impermissibly.
27. Finally and for completeness, we record that no submission was made on behalf of the applicant that the tribunal were wrong to make the order for costs without enquiring into the applicant's means.

JUDGE PETER CLARK: Following our judgment in this case, Mr Oulton applied for the respondents' costs in this appeal. He submits that at the end of the day the decision to launch and pursue this appeal was unreasonable within the meaning of Rule 34(1) of the EAT Rules.

Ms Kavanagh submits that it was not unreasonable to pursue the appeal.

We have no hesitation in accepting Mr Oulton's submission. Therefore this is a case, we think, in which, in principle; costs should be awarded in favour of the respondents.

We enquired first of Mr Oulton as to the detailed costs incurred in the appeal on the respondents' side. He was unable to give us a figure. Secondly, we specifically enquired of Ms Kavanagh as to the applicant's means. She told us that the applicant has just started a job as a part-time lecturer, that she has considerable debts following her leaving the employment of the respondents at the end of last year and that since time she has just done some freelance work.

It may or may not be that she will receive a significant award of compensation in this case, but we cannot speculate as to that. In all the circumstances, we think that the proper order to make is one of £150 to be paid by the applicant in respect of part of the respondents' costs.