United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADRIAN MELIA (Representative)
For the Respondent	MS E SMITH (of Counsel) Instructed by: Messrs Mills & Reeve LLP Solicitors Francis House, 112 Hills Road, Cambridge Cambridgeshire CB2 1PH


 


SUMMARY

PRACTICE & PROCEDURE

Case Management

1. Following non-compliance with an unless order a party in breach would have to apply for relief by way of review.
2. It is permissible to permit questions to be put to an expert witness under case management powers.


 


HIS HONOUR JUDGE ANSELL

3. This has been the hearing of appeal in relation to two orders made by Employment Judge Zuke. Firstly, a judgment of 26 August dismissing the complaint of disability discrimination in so far as it related to an alleged disability of gastroenteritis. The judgment was that the complaint was struck out following a breach of an earlier order made in May 2008, being an Unless Order requiring provision of a medical report by the 15 August. The second order made effectively on review allowed the Respondents to put certain questions to the Appellant's expert, Professor Hirsch, who had reported on another aspect of disability.
4. The claims themselves had been instigated in 2006. The particulars are dated 18 October, and they were for claims for unfair dismissal, wrongful dismissal and/or automatic unfair dismissal contrary to Section 101, 103A and 107 of the Employment Rights Act 1996, breaches of Sections 44 and 47 of the Employment Rights Act and for disability discrimination.
5. The disabilities alleged were depression and anxiety disorder and it is that which Professor Hirsch reported and also a gastro-reflux disorder commonly known as GERD.
6. The first relevant case management order was made on 8 March 2007 by Mr Zuke and he ordered that by 3 May the Claimant had to send medical reports in relation to each disability and, thereafter, for the Respondent to inform the Claimant and the Tribunal if either or both of those disabilities were admitted.
7. The claim did not proceed immediately. The progress was delayed in part, as I understand, by the Claimant's ill health and also there were other events occurring. But in any event, matters were reactivated by Mr Zuke's order of 6 May 2008 and in particular for the reasons that he has set out, he made an unless order providing that:

"On or before 15 August the Claimant shall send the Respondent and the Tribunal medical reports concerning each alleged disability, namely, depression and gastroenteritis. Unless this order is complied with, all the claims under the Disability Discrimination Act 1995 shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or hearing."

8. That wording, of course, mirrored the provisions in Rule 13, Schedule 1 of the 2004 regulations which allow for the making of an unless order which can provide a strike out as a sanction for non-compliance, without there being the more formal procedure of a Strike out order following notification and the ordering of the pre-hearing review, that is Rule 18, procedure.
9. The point must be made immediately that there was no appeal against that 'unless' Order. Thereafter, it is said by the Appellant that he encountered difficulties in locating an expert to deal with the report in relation to the reflux problems. Various correspondence passed between the parties in the summer of 2008. The Claimant also was maintaining that he was having some problems in regard to his then representative, Mr Hilton, who then had some personal family problems.
10. Certainly, at one stage the Employment Judge considered a request to extend the timetable and in particular to extend the 15 August deadline. I have not seen the precise letters that led up to that request but, certainly, there must have been a request and that would have been a request under the Court's management powers to extend time limits. It is clear from the Decision of Hart v English Heritage (Historic Buildings and Monuments Commission for England) [2006] ICR 655 that there is power to extend the time under all orders and in particular at paragraph 30, the President, Elias J, said that Rule 10 should be construed so as to cover all decisions taken by a Tribunal in the proper exercise of its case management powers.
11. As far as unless orders are concerned, that would, of course, only apply if the time limit had not expired. The application for an extension was refused by Employment Judge Zuke and the letter from the Tribunal was dated 23 July and it says this:

"In the judge's view the order allows ample time for the obtaining of medical reports. For the avoidance of doubt, at paragraph 5 of the order is complied with by providing a report about depression, but not about gastro-enteritis, it is only the complaint about gastro-enteritis that shall be automatically dismissed."

12. That was, obviously, helpful because certainly on one view of the unless order, and as is well known, a partial non-compliance with an unless order normally means that the whole claim subject to the unless order is struck out. In fact, Employment Judge Zuke was, effectively, separating the order.
13. Once again, there was no appeal against that order. The Claimant was still writing about the problems in connection with obtaining a gastroenterologist. A letter of 6 August repeated and re-emphasised those problems. The time for compliance passed and there was no medical report and on 19 August, Charles Russell, who then represented the Respondents, wrote seeking implementation of the Strike out order. There was a further letter from the Appellant citing the problems dated 21 August and, as I have indicated already, the matter was considered on paper by Employment Judge Zuke and he made the Strike out order on 26 August.
14. Mr Melia on behalf of the Appellant argued that Employment Judge Zuke, when approaching the matter on 26 August, should either have exercised his discretion to extend time or, alternatively, treated the correspondence that he had received from the Appellant's representatives as an application for review and dealt with it on that basis, applying the criteria set out in Rule 3(a) of the Civil Procedure Rules.
15. I reject both of those suggestions. The only course open to Judge Zuke when considering the matter seems to me was to determine whether or not there had been compliance with the Unless order and once he determined that there was non-compliance, then there was no discretion whether or not to strike out the claim. The time for extension of time passed once the compliance date was reached and, on the other hand, until such time as the issue of judgment, there was no power to review.
16. It seems to me that those principles emerge from a number of recent decisions at this Court. First of all, the President, Elias J, in EB v BA UKEAT/0139/08 said this at paragraph 18:

"A hearing was conducted on 10 July for Employment Judge to determine whether its response constitute compliance with the unless order or not. It is common ground that if the Claimant was, indeed, in breach of the unless order then there was no discretion whether or not to strike out the claim. The strike out operated automatically upon breach of the order. This is made plain in the Decision of Moore-Beck LJ, giving a judgment in the Court of Appeal in Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463; [2007] 1 W.L.R. 1864 in relation to the civil procedure rules where he said this at paragraph 34:

'In my view it should now be clearly recognised that the sanctioning body of an Unless order into just reform takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect.'

This has a number of consequences, three of which of I think it is worth drawing particular attention. The first is that it is an unnecessary, indeed, inappropriate, for a party who seeks to run a non-compliance with an order of that kind to make an order to the Court for a sanction to be imposed whereas the Judge put it activated. The sanction proscribed by the order takes effect automatically as a result of the failure to comply with its terms. If an application to enter judgment is made under Rule 3(5)(v), the Court's function is limited to decide in what order it should properly be made to protect the sanction which has already taken effect. Unless the party in default has applied for relief from the Court itself decides for some exceptional reason that it should act on its own initiative, the question of whether the sanction ought to apply does not arise. It must be assumed that at the time of making the order the Court considered all the relevant factors and reached the Decision that the sanction should take effect in the event of default. If it is thought that the Court should not have made the order in those terms in the first place, the right course is to challenge on appeal but it may be better to make all reasonable steps to comply to seek relief in the event of default."

17. Paragraph 19:

"The same position has been adopted in respect to non-compliance with an Unless order before the EAT in Uyanwa-Odu and Adeniram v Schools Offices Services Limited and Caxton Islington Limited, UKEAT/0294/05/ZT by Peter Clarke HHJ giving judgment in the EAT said this at paragraph 28:

'Following expiry of the time for compliance, strike out sanction takes effect. Thereafter , it is open to the party at default to apply for a review of the strike out judgment coupled with an application to extend time for compliance with the underlying order requiring him to do a lot from something he said and list of documents and witness statements.'"

18. That approach has been confirmed more recently in the case of Neary v The Governing Body of St Alban's Girls School & Another UKEAT/0281/08/LA, a decision again of HHJ Clark, where he makes it clear at paragraph 21 in these terms:

"Having reconsidered the point I see no reason to depart from my approach in Uyanwa-Odu and Adeniram v Schools Offices Services Limited and Caxton Islington Limited and unless order made here is an order within Rule 28B which is not capable of review by virtue of 34. However, once the sanction of strike out automatically takes effects for a non-compliance, that is a final determination of proceedings under Rule 28(1)(a) allowing the review application under Rules 34 to 36."

19. It seems to me, therefore, that Judge Zuke, when presented with a request to make the order had no discretion once he was satisfied that the medical report had not been obtained and served within the required period. What did not happen in this case and certainly should have done in order to assist the Appellant would have been following Judge Zuke's order on 26 August for there to have been an application for relief backed up with a speedy supply of the gastroenterologist's report.
20. I am told today that a report was sent at a date in September. I have not seen it. I have not seen any proof of that but, certainly, I have seen nothing today and, indeed, it is not argued before me, that post 26 August there was a request for relief to permit late service of the report.
21. It is said that the Appellant had difficulties with representation because of Mr Hilton's personal problems and his own personal problems however in the absence of any application for relief, it seems to me that there was no power to avoid the results of non-compliance by 15 August and I cannot find fault with Judge Zuke's order.
22. The second matter concerns the provision of the order that allowed questions to be put to Professor Hirsch. That report was received and served during 2008 and on 9 September 2008, Charles Russell wrote to the Employment Tribunal pointing out in the first paragraph on the second page of the letter this:

"Paragraph 6 of the Tribunal's Written Reasons contained in its Order for Directions following the Case Management Discussion on 6 May 2008 clearly states that the medical report should contain a diagnosis, history, details of any treatment and the details of the effects of the impairment on the Claimant's normal day to day activities. The Tribunal's letter goes on to state that, 'the focus of the report should be on the Claimant's period of employment (namely, September 2002 until July 2006), which is the material time, and not on his current condition.'

Having reviewed Professor Hirsch's report in detail, it is clear that this report fails to address these issues. The focus of the report is not on the relevant period of the Claimant's employment from September 2002 to July 2006, as the Employment Tribunal had directed. Rather, the focus of the report is on the Claimant's condition since termination of his employment. The report also fails, among other things, to address the details of the effects of the alleged impairment on the Claimant's normal day to day activities and fails to deal with the issue of the effects of medical treatment on the Claimant's alleged impairment. Based on this wholly satisfactory report, the Respondent is not in a position to accept that the Claimant is disabled by reason by his alleged depression and therefore the issue of disability is not conceded."

23. The letter then goes on to suggest that:

"… the Respondent considers it may be helpful and may avoid the need for it to obtain its own medical report if it were given the opportunity to pose supplementary questions to Professor Hirsch in order to address the key issue which his report fails to deal with."

24. That issue was addressed on the same day by an email from Dr Frederic's who went into considerable detail and quoted a number of lengthy passages from Professor Hirsch's report seeking to suggest that contrary to the assertion made by the Respondents that he had addressed the key issues as far as disability was concerned.
25. The response from Employment Judge Zuke was dated 11 September and again, it is a decision he came to, it seems, on consideration of the papers and correspondence. His response is this:

"I have decided it is appropriate to permit the Respondent's solicitors to put written questions to Professor Hirsch, as the answers may obviate the need for the Respondent to obtain its own medical report. The Claimant must be been informed of the questions. I have not received a copy of Professor Hirsch's report. My direction is that:

1. On or before the 19 September the Respondent shall send the Tribunal a copy of Professor Hirsch's report,

2. The Respondent has leave to send written questions by letter to Professor Hirsch by 26 September, and must send a copy of the letter to the Claimant and the Tribunal.

3. The Respondent shall send the Claimant and the Tribunal a copy of Professor Hirsch's reply."

26. There was an issue as to whether or not a copy of Professor Hirsch's report had, indeed, been sent to the Tribunal by this time. Clearly, Employment Judge Zuke did not see it and referred to that fact and it is also right that as at the date of his first order, 11 September, although the Respondent's solicitors had made their complaints in a letter of 9 September a precise list of proposal questions had not been presented to the Employment Tribunal.
27. That, however, was done shortly afterwards by letter of 15 September when a letter was sent to Professor Hirsch and a copy was sent to the Tribunal and other parties. It seems, also, that within the next few days a copy of the medical report was also resubmitted to the Tribunal.
28. On 15 September, Dr Frederics sent an email complaining about the actions which had been taken in putting questions to the professor and also the nature of the areas that he was being asked to investigate. That email concluded with a request to Mr Zuke to review his order. Again, strictly, it is not clear whether there is power to review a case management order, nevertheless, Mr Zuke did review the matter and he confirmed the previous order that he had made and concluded in a letter of 29 September as follows:

"If a Claimant instructs Professor Hirsch not to answer the questions, I will not make any further order. Any issues about the reasonableness of the Claimant's conduct can be raised at the hearing. It is for the parties to decide what medical evidence they wish to produce at the hearing on the issue of the Claimant's disability. I cannot comment on the quality of such evidence."

29. Two central complaints are urged upon me today by Mr Melia on behalf of the Appellant. Firstly in relation to the general approach of putting questions to experts he argues that the dangers in this, particularly in this sort of case, are that the Respondents can secure a tactical advantage by firstly putting questions that might weaken the Claimant's medical evidence, permitting them then to argue there was no disability, then to call their own expert particularly to re-emphasise those areas which have been weakened in terms of the Claimant's medical evidence.
30. He also complains on the particular facts of this case that Mr Zuke was wrong to make the order, certainly initially, without sight of Professor Hirsch's report or a precise list of questions which were going to be posed and, indeed, argues that it is not clear that by the time the review order was made on 29 September those complaints had disappeared.
31. On the general point of putting questions to experts, in the civil litigation field, this practise is well known in virtually in all areas where expert evidence is adduced. There is particular provision in Rule 35(6) of the CPR which allows a party to put questions to an expert within 28 days of the service of the expert's report without seeking the Court's permission.
32. It is contended by Ms Smith in this case that those provisions should provide a background but in any event she argues that the Tribunal's case management powers under Rule 10 are so wide that they certainly allow questions to be put and, certainly, I can see nothing wrong in the general principle of parties being able to put questions to experts to clarify matters, particularly as a cost saving exercise so as possibly to avoid the necessity of experts being called and also to fill in what may be clear gaps in the he expert's report in far as the key issues in a case are concerned.
33. I am concerned that Mr Zuke made the initial order without apparent sight of Professor Hirsch's report and also did not have sight of the list of questions which were going to be put although it is right to say that the letter of 9 August did highlight with some particularity the areas which the Respondents list was regarded as deficient.
34. However, it seems to me that those defects should be regarded as having been cured by the later decision on 29 September. It seems to me that Mr Zuke, in reviewing these matters, must have seen the medical report. Indeed, one for the issues that he raised at the beginning of the letter of 29 September was this:

"Can the Tribunal now give judgment about the Claimant's disability on the basis of Professor Hirsch's report?"

35. I cannot conceive that, having raised that issue, he would not have certainly given consideration to that report and as Ms Smith pointed out in her argument, he also had the copy letter of 15 September which set out the particular questions that were being posed.
36. In so far as it might be argued that tactical advantage could be obtained, Mr Zuke did say:

"That if the Claimant instructed Professor not to answer questions: "I will not make any further order."

37. Therefore, he gave that allowance although the reservation that issues about the reasonableness of that approach could be raised at the final hearing.
38. Accordingly, even though I had some reservations about the initial order relating to questions, I am satisfied those reservations were overcome by the review decision which is the subject letter of the appeal in this case and, therefore, for reasons I have outlined this appeal is dismissed