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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Morton v Eastleigh Citizens' Advice Bureau [2020] EWCA Civ 638 (15 May 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/638.html Cite as: [2020] EWCA Civ 638 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Lavender
UKEAT/0208/18/BA
Strand, London, WC2A 2LL |
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B e f o r e :
VICE
PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
and
LORD JUSTICE LEWISON
____________________
ROSE ![]() | Appellant |
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- and - |
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Respondent |
____________________
Gary Self (instructed by DC Commercial Solicitors) for the Respondent
Hearing date: 5 May 2020
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Lewison:
"By the 11th August 2017 if the respondent does not concede that the claimant is a disabled person, the parties agree on the identity of, and a joint letter of instruction to, a medical expert to report on the claimant's condition whose fee will be paid jointly by the parties."
"An order may bevaried
or revoked upon application by a person affected by the order or by a judge on his/her own initiative."
"Unless there are exceptional circumstances, no application for a postponement will be granted."
"EJ Harper therefore directs you to confirm by 9 October 2017 whether you rely on the other alleged disabilities – in which case an independent expert would need to be instructed on a joint instruction on a jointly funded basis. If, however, you rely only on the "binge eating disorder" as your disability there is no need to have such further expert evidence."
"I would assume that the issue of disability, in respect of all the conditions in question, can be satisfactorily addressed on the basis of the existing medical evidence and the Claimant's testimony (including oral testimony). I therefore propose that the matter may be listed for a half day Preliminary Hearing to address disability and the other matters referred to in the case management summary. If either party objects it should let us know within 7 days."
"However, instead the decision of Judge Harper was reversed. There has been no change in circumstances so it seems unfair for Judge Harper's decision to be overridden in this way."
"At the outset of this hearing, the claimant sought a postponement in order to obtain a joint medical report on this issue. It is correct that there was reference in an earlier case management [decision] to the possibility of a joint expert report being obtained, in the event of the respondent not accepting that the claimant was disabled. Subsequent correspondence from the tribunal indicated that Employment Judge Reed on 19 October 2017 wrote to the parties expressing theview
that the remaining issues of disability could satisfactorily be addressed on the basis of the existing medical evidence and the claimant's testimony, and proposed this preliminary hearing address that issue. The parties were invited to express their
views
on the matter. The claimant repeated her
view
that a joint report should be obtained, and in the interim the preliminary hearing should be postponed, and the Respondent proposed that Judge Reed's suggestion should be adopted. The matter came before Employment Judge Pirani, who having considered the documentation, refused the application on the basis that the claimant had adequate notice, and time to prepare for this hearing. Having heard representations from the parties I saw no reason to interfere with Judge Pirani's determination."
i) In making her application MsMorton
did not state that she was doing so on the grounds of ill-health.
ii) She complained about the late receipt of documentation from the CAB but EJ Kolanko did not understand her to be saying that she was prejudiced by that. He was satisfied that MsMorton
was aware of the issues to be determined at the hearing and was familiar with the documents in the bundle which had been disclosed by her.
iii) She complained that she was prejudiced by the late receipt of the CAB's explanation for disputing disability in respect of the conditions other than the eating disorder; but EJ Kolanko agreed with the earlierviews
of EJ Reed and EJ Pirani and saw no need to interfere with their rulings.
iv) She did not raise the possibility of calling her own medical expert if a joint report was not to be obtained.
"The Claimant contends that the ET erred in refusing to adjourn the hearing on 30 October 2017 by failing to take into account materially relevant information and circumstances. In particular she contends that the ET failed to take into account materially relevant information and circumstances. In particular she contends that the ET failed to take into account the earlier orders of EJ Harper, the changed approach of EJ Reed, and the limited time that she had to prepare for the hearing as a consequence, or to obtain medical or other evidence."
i) MsMorton
had not seen the bundle prepared by the CAB until the hearing.
ii) No list of issues had been prepared for the hearing.
iii) MsMorton's
request for an order that the CAB explain their reasons for disputing her disabilities had never been dealt with.
iv) She had not seen the bundle or any of the evidence or witness statements presented by the CAB within the minimum period of 7 days.
v)
The failure to provide that information meant that there was not sufficient time for her to prepare and submit a witness statement, skeleton argument or chronology.
vi)
The lack of notice of the CAB's evidence, witness statement and bundle meant that she did not have sufficient time to obtain evidence from witnesses or additional medical evidence.
"The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Subject to rule 30A(2) and (3) the particular powers identified in the following rules do not restrict that general power. A case management order mayvary,
suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made."
"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…"
"(2) Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where—
(a) all other parties consent to the postponement and—
(i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or
(ii) it is otherwise in accordance with the overriding objective;
(b) the application was necessitated by an act or omission of another party or the Tribunal; or
(c) there are exceptional circumstances."
"… before a judge can interfere with an earlier order made by a judge of equivalent jurisdiction there must be either a material change of circumstances or a material omission or misstatement or some other substantial reason, which … it is not possible to describe with greater precision."
"…variation
or revocation of an order or decision will be necessary in the interests of justice where there has been a material change of circumstances since the order was made or where the order has been based on either a misstatement (of fact and possibly, in
very
rare cases, of law, although that sounds much more like the occasion for an appeal) or an omission to state relevant fact and, given that definitions cannot be exhaustive, there may be other occasions, although …these will be "rare" and "out of the ordinary"."
Lord Justice Underhill: