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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mid-Devon District Council v Stevenson [2007] UKEAT 0196_07_1810 (18 October 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0196_07_1810.html Cite as: [2007] UKEAT 0196_07_1810, [2007] UKEAT 196_7_1810 |
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At the Tribunal | |
On 25 June 2007 | |
Before
HIS HONOUR JUDGE BURKE QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | Miss L Chudleigh (of Counsel) Instructed by: Mid-Devon District Council Legal Services Phoenix House Phoenix Lane Tiverton Devon EX16 6PP |
For the Respondent | Ms J Stone (of Counsel) Instructed by: Messrs Stones Solicitors Linacre House Southernhay Gardens Exeter Devon EX1 1UG |
SUMMARY
Practice and Procedure – Case management
Disability Discrimination - Disability
At an adjourned CMD the Chairman refused the employers' application for leave to call their own psychiatric expert on the issue of disability. The claim was said to be worth nearly £100,000; the Claimant's solicitors had obtained their own expert;- although they had invited the employers to agree joint instruction, they did so at a time when the only disability alleged was "back injury".
Held that, although the grounds on which a case management decision of the ET could be successfully appealed were very restricted, these grounds were made out. The employers had acted reasonably; they were not guilty of delay; there was no risk that their obtaining their own report would delay the substantive hearing. The Chairman failed to take into account the importance of the overriding objective to deal with cases justly and on an equal footing and had reached a decision which no reasonable Tribunal could reach.
HIS HONOUR JUDGE BURKE QC
The appeal
The history
"It seems to us that more medical evidence on this aspect of our client's condition is required in order to fulfil the overriding objective of the Tribunal proceedings. We are now seeking to jointly instruct a consultant psychiatrist in order to secure the relevant information for the Tribunal. It is a matter for you as to whether or not you wish to jointly instruct such an expert and share the costs or whether you will seek to rely on an expert whom we shall otherwise instruct on the Claimant's behalf."
"I would therefore support based on recent findings and available information, a diagnosis of depressive episode (single episode) of mild to moderate severity with marked anxiety features. I suspect that this is fluctuated in its intensity (sic) and severity and maybe affected by stress and Ms Stevenson's experience of pain and physical discomfort."
"If we are not satisfied the door is open so to speak to instruct our own expert."
In the second Mr Langdon said:
"The next hearing in December will be a case management hearing only and not the trial of the issues. The Tribunal will be expecting to hear from us whether the counsel wants its own psychiatrists report or whether we agree the reports."
"However the nature and duration of symptoms is unclear. I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter."
"(1) As a matter of case management expert evidence should be limited to that which is reasonably required to resolve an issue. That is an approach supported by the CPR. Ultimately I was not satisfied that any further expert evidence was reasonably required to determine the issue of whether or not in relation o impairment the respondent was or was not a disabled person under the DDA.
(2) The respondent bears the burden of proving that she is disabled in relation to mental impairment. It is therefore for the respondent to bring forward the relevant evidence to discharge that burden.
(3) The respondent had produced the report of the expert that she had instructed and upon whose report she wished to rely in discharging that burden. The appellant had made no suggestion that there was any lack of legitimacy in Dr Lynch's approach, professional qualifications or ability to have prepared such a report nor was there any suggestion from the appellant that there was any irregularity in the way in which he had been instructed to prepare his report by the respondent's representative. Therefore on its face Dr Lynch's report appeared to be an entirely valid professional opinion upon which the respondent was entitled to rely in discharging the burden of proving that she was disabled.
(4) The appellant had rejected an early opportunity offered to it by the respondent to jointly instruct an expert on the question of mental impairment and although I accept that this opportunity was offered before the respondent was given leave to amend her claim to include one of mental impairment I considered it relevant that the appellant did not seek to raise the issue of wanting to instruct its own expert until a late stage following the receipt of Dr Lynch's report and the addendum to it consequent upon the appellant's written questions. It was my judgment that to accede to the appellant's request to now instruct another expert would necessarily create delay. I could not identify any reason to create that delay.
(5) The appellant, had been given an opportunity of asking questions of the. expert following the Case Management Discussion with Mr Hollow on the 1 November. That is an approach which is consistent with the CFR.
(6) I was satisfied that the appellant's request to instruct a further expert was simply as a consequence of it wanting to have an opportunity to find another expert who may hold a different professional view to that of Dr Lynch. This is supported in their letter to the tribunal of the 24 January "I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter." However the appellant provided no basis upon which it should be given an opportunity to find such another expert as no argument was advanced to call into question the legitimacy of the professional view expressed by Dr Lynch. I accepted that it is likely to be possible to find an expert in any field who might disagree with a view expressed by a different expert. That however did not create a situation in which there was any necessity in all of the circumstances of this case to allow the appellant that opportunity.
(7) I also took into account the overriding objective of dealing with matters expeditiously and fairly. I was conscious of the fact that this claim was now relatively old. It had been presented in November 2005. It is undesirable to allow cases to not be brought on for hearing expeditiously although I accept there are often reasons where matters need to be delayed. I saw not reasons here for any further delay. I could discern no unfairness to the appellant for the reasons I already stated. The right opportunities had been offered to the appellant to play an appropriate role in the commissioning of the expert evidence and it was my judgment that acceding to the appellant's request to nonetheless go on now to instruct a further expert would create a delay that was not necessary.
(8) It seemed unlikely to me that Mr Hollow had indicated to the appellant on the 1 November 2006 that as is stated by them in their Notice of Appeal they were' given permission to instruct their own expert if necessary after Dr Lynch had answered questions put to him by the appellant. I formed this view from Mr Hollow's notes which comprehensively record a discussion on all matters that are reflected in the Case Management Order issued by him and further record the reason for the adjournment being to allow the appellant an opportunity to ask questions of Dr Lynch. They make no reference to leave being given to the appellant to thereafter instruct a further expert. Further the respondent's solicitor confirmed to me that he had no recollection of Mr Hollow saying anything more than that the adjournment would be given to allow the appellant an opportunity to ask questions of Dr Lynch. However in this regard I can only rely upon Mr Hollow's note and the respondent's solicitor's recollection as I was myself not present at that Case Management Discussion."
The hearing of 1 November 2006
The Chairman's decision. The law
"3 Overriding objective
[(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.]
(2) Dealing with a case justly includes, so far as practicable –
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.
[(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he:
(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6;"
"The case provides a salutary example of the value of the rule that the tribunals themselves are the best judges of the case management decisions which crop up every day as they perform the function, an important but seldom an easy one, of trying to do justice with the maximum of flexibility and the minimum of formality to the problems that arise from the employment relationship and its termination. Decisions of the kind that the chairman was required to make in this case frequently call for a balance to be struck between considerations of time, cost and convenience as well as fairness to the parties, and in the vast majority of cases can and should be left to the tribunals to resolve for themselves without interruption from the appellate process."
The facts of that case were wholly different from those of the present case; the case management decision was of a different nature; but the principle applies generally.
"I am satisfied, contrary to what the Employment Appeal Tribunal found, the Employment Tribunal were here exercising the classic discretion of the trial judge in the issue of the witness summonses and in like matters. Such examples of such a discretion lie not only in the issue of witness summonses but whether to grant an adjournment or whether to order the trial of a preliminary issue etc. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was 'outside the generous ambit within which a reasonable disagreement is possible'."
Discussion
The result
1) MDDC have reasonable grounds for seeking to dispute Dr Lynch's opinions; this is a very substantial claim which it is prima facie just that they should be able to meet by calling an expert of their own. The issue of disability is manifestly one which is fundamental to Ms Stevenson's claim and to MDDC's response.
2) MDDC were not obliged to agree to a joint psychiatric report, particularly when they were asked to do so at a time when mental impairment was not part of Ms Stevenson's case (and in any event there is clear Court of Appeal authority – which was not explored in the arguments before me – that, even if they had so agreed, in a substantial claim they would have been entitled to seek their own expert if they had good grounds for disputing the conclusions of the joint expert).
3) MDDC have not done anything to justify withholding from them of the opportunity of obtaining their own expert.
4) MDDC have not been guilty of delay.
5) There need be no future delay. At the hearing before me MDDC had "lined up" their expert. He was, I was told, able to produce a report (assuming Ms Stevenson consented to his examination in time) speedily and in good time for the process of questions and an expert's meeting before the hearing fixed for August.
I therefore allowed the appeal, granted MDDC's application and made further ancillary orders which followed from that grant.