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Cite as: [2007] UKEAT 0196_07_1810

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BAILII case number: [2007] UKEAT 0196_07_1810
Appeal No. UKEAT/0196/07

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 25 June 2007
             Judgment delivered on 18 October 2007

Before

HIS HONOUR JUDGE BURKE QC

(SITTING ALONE)



MID-DEVON DISTRICT COUNCIL APPELLANT

MS B STEVENSON RESPONDENT


Transcript of Proceedings

JUDGMENT

© Copyright 2007


    APPEARANCES

     

    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

  1. This is an appeal by the Respondents before the Employment Tribunal, Mid-Devon District Council ("MDDC") from a case management decision made by the Tribunal, in the person of Mrs Christensen as Chairman alone, at Exeter on 31 January 2007. The Chairman's reasons for her decision were neither given nor sought on that occasion; subsequently written reasons were given in a letter dated 26 March 2007, provided pursuant to an order of the EAT.
  2. The decision which is the subject of this appeal is that no further medical evidence should be adduced without leave of the Employment Tribunal.
  3. I heard argument in this appeal from Miss Chudleigh on behalf of MDDC and from Ms Stone on behalf of Ms Stevenson on 25 June 2007; at the conclusion of the arguments, because the trial of the issue whether Ms Stevenson was disabled for the purposes of the Disability Discrimination Act 1995 was to take place in early August, I informed the parties that the appeal would be allowed for reasons which would be handed down later; and I made various ancillary orders which, for present purposes, I do not need to recite. I now give my reasons for allowing the appeal.
  4. The history

  5. The proceedings consist of a claim presented to the Employment Tribunal on 30 November 2005 by Ms Stevenson against her employers, MDDC, in which she complains of unfair dismissal, disability discrimination and failure, in breach of contract, to pay medical expenses which she has incurred. The only disability referred to in the claim form is "a back injury"; see claim form paragraph 1. MDDC by their response disputed that Ms Stevenson was disabled and that the dismissal was unfair or discriminatory. Their case is that Ms Stevenson had been off work for ill health from May 2004, that by July 2005 she still appeared to be unable to work in any capacity and that she had been fairly dismissed for incapability. They denied any agreement to pay the expenses claimed.
  6. Ms Stevenson seeks unlimited compensation for loss of earnings, injury to feelings and personal injury. This is plainly a claim with very substantial potential in terms of compensation, should it succeed in principle. I have seen a copy of Ms Stevenson's second schedule of loss which puts forward a claim of approximately £91,000, excluding pension loss which has not yet been calculated.
  7. On 1 March 2006 the Tribunal, at a case management discussion by telephone, made a number of directions. They included directions that the case be listed for a full hearing of all issues including the disability issue, that the parties would jointly instruct a medical expert and that if a joint expert could not be agreed the Tribunal would give further consideration to the medical evidence. A hearing date of 24/25 July 2006 was fixed.
  8. Pursuant to that order the parties jointly instructed a consultant neurologist, Dr Gibson. He did not see Ms Stevenson until 11 July; no reasons for that delay have been put before me. His report is dated 2 August. He concluded, in summary, that, since a fall in May 2004, Ms Stevenson had been functionally incapacitated but that her continuing symptoms were not organic and were probably psychologically determined. He made reference to a chronic depressive state. The hearing date had to be re-fixed, for 14 November; this delay reflected no blame on MDDC.
  9. On 28 September 2006 Ms Stevenson's solicitors wrote to MDDC putting forward, for the first time, chronic depression as Ms Stevenson's disability and saying:
  10. "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."

  11. That letter was clearly an invitation to MDDC to agree the joint instruction of a joint psychiatrist. It gave an indication that, if separate experts were to be relied upon, a costs order might be sought. Mr Langdon, MDDC's solicitor responsible for the claim, understood from that letter that it was accepted on behalf of Ms Stevenson that, if a joint appointment was not agreed, each party would be able to instruct its own expert. I suspect that Ms Stevenson's solicitors were seeking, by threat of costs, to persuade MDDC to agree a joint instruction; but they plainly did not shut the door on the bilateral alternative.
  12. At that stage, it is important, in my judgment, to note, there had been no attempt to amend the claim form. The hearing was some 6 weeks away. MDDC replied by return saying that Ms Stevenson's case was that her disability consisted of a back injury, which case was unsupported by medical evidence. In those circumstances they declined to agree a joint psychiatric report.
  13. Ms Stevenson's solicitors did not apply to the Tribunal for an order that there should be a joint appointment or, at that stage, for leave to amend the claim form. They obtained a psychiatric report from Dr Lynch, dated 12 October 2006. His report refers to complex matters of causation and the interrelationship between symptoms of pain and other matters and psychiatric illness. His general conclusion at paragraph 1 under "Opinion" was as follows:
  14. "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."

  15. Ms Stevenson's solicitors then, with less then a month outstanding before the hearing, applied for leave to amend her claim by adding depression as a disability. MDDC opposed the application on the basis that it was made too late. As a result there was a further case management discussion by telephone on 1 November 2006, on that occasion before a different Chairman, Mr Hollow. He gave leave to Ms Stevenson to amend the claim, as sought, and to MDDC to amend their response in a manner that did not arise from Ms Stevenson's amendment and is not relevant for present purposes. He further ordered that the hearing date be vacated; he did not fix a new date but adjourned the CMD for 4 weeks, to be resumed on a day to be notified.
  16. There is a dispute as to what was said in the course of that CMD about medical reports. Mr Langdon on behalf of MDDC states that he explained to the Chairman that he did not accept Dr Lynch's report; in order to resolve his clients' concerns about it he would put written questions to Dr Lynch; but he wanted leave to instruct his own psychiatrist and sought that leave; and, he states, the Chairman expressly agreed to that course. That account is confirmed in a witness statement put before me, dated 2 April 2007, to which no objection has been taken on behalf of Ms Stevenson.
  17. There is no witness statement from Mr Falcao who appeared on behalf of Ms Stevenson on that occasion; but at the subsequent CMD, at which the order now appealed against was made, Mr Falcao said that he had no recollection that Mr Hollow had said anything other then that he was going to adjourn the CMD to enable MDDC to ask questions of Dr Lynch.
  18. Mr Hollow's order, after reciting the leave to amend given to both parties and the vacation of the November hearing date, says only that the CMD was adjourned for 4 weeks to a date to be notified.
  19. Ms Christensen's reasons of 26 March 2007 record that, during the adjourned CMD which was restored and heard before her, with the parties' knowledge she looked at Mr Hollow's notes which recorded only that the CMD would be adjourned for a month to enable MDDC to ask questions of Dr Lynch. However Mr Langdon has exhibited to his witness statement two emails sent to managers in MDDC concerned in Ms Stevenson's case and dated 2 and 10 November respectively. In the first Mr Langdon, having described that the CMD had been adjourned to enable MDDC to put questions to Dr Lynch, said:
  20. "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."

  21. Mr Langdon sent a series of questions to Dr Lynch without delay on 9 November. They were not answered until 17 January 2007, some 10 weeks later. The answers are, as was the original report, lengthy and complex; I say that in no critical spirit; but that Mr Langdon reasonably and genuinely concluded that they did not meet his concerns could not realistically be disputed. Because Mr Langdon took that view a further case management discussion was speedily set up, for 31 January; and on 24 January Mr Langdon wrote to the Employment Tribunal setting out the history, enclosing all medical reports, including Dr Lynch's answers to the questions, and saying:
  22. "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."

  23. On 31 January, having considered Mr Hollow's notes and having heard the parties solicitors by telephone, Mrs Christensen made the order which is now the subject of this appeal; she also ordered that the parties should provide dates of unavailability for the months of May, June and July 2007 within 7 days and, thereafter, that the claim be listed for a 3 day hearing to decide as a preliminary issue whether Ms Stevenson was a disabled person within the 1995 Act.
  24. In her letter to the EAT on 26 March 2007 Mrs Christensen set out how she had looked at Mr Hollow's notes of the hearing, set out the history in brief terms and then turned to her reasons for her decision as to medical evidence. It is probably best that I should set out the relevant parts of the Chairman's letter in full, most of them having been the subject of argument in the course of this appeal, as follows:
  25. "(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

  26. The first basis on which Miss Chudleigh put the appeal was that Mrs Christensen erred in law in making her order as to medical evidence because Mr Hollow had, at the hearing of 1 November 2006, given MDDC leave to have their own psychiatric expert. She submitted that Mr Langdon's positive evidence as to what had occurred was to be preferred to the view expressed by Mrs Christensen in her numbered paragraph 8 of her reasons which was based only on the absence of any reference to his having given such permission in Mr Hollow's notes and that Mrs Christensen's view did not explain the adjournment of the CMD. She relied on the two emails to which I have referred above. When I pointed out to Miss Chudleigh that there was a disputed fact as to what had occurred on 1 November – for it had not been accepted on Ms Stevenson's part that Mr Langdon's account was correct – and that I, sitting at an appellate court, was in no position to resolve such a dispute satisfactorily, Miss Chudleigh offered to tender Mr Langdon for cross-examination by Ms Stone. However Ms Stone did not take up that offer; and Miss Chudleigh did not call Mr Langdon. On the material available to me, I cannot and do not propose to make any formal determination as to precisely what occurred before Mr Hollow. It is clear (1) that Mr Langdon, entirely appropriately, indicated his intention to ask questions of Dr Lynch (2) that he must have had in mind that he was likely to need to obtain a report from a psychiatrist on behalf of MDDC if the answers given by Dr Lynch were not satisfactory to MDDC and (3) that Mr Hollow did not expressly make an order giving MDDC leave to have their own psychiatrist or make a note of any such order. The terms of the two emails do not constitute compelling support of Mr Langdon's recollection; they indicate, in my view, that what may well have happened is that Mr Langdon reserved or believed he had reserved his decision as to seeking a psychiatric expert on behalf of MDDC until after the questions to be put to Dr Lynch had been answered.
  27. While I agree with Miss Chudleigh's submission that, if Mr Hollow had given MDDC permission to have their own psychiatric expert, Mrs Christensen would have been in error in making the order that there should be no further medical evidence without leave – thus, in effect, rescinding the earlier order – the necessary precondition for the existence of that error has not, in my judgment, been established. Accordingly while the history is of obvious importance, the outcome of this appeal must turn on an examination of Mrs Christensen's decision and her reasons for it, absent any previous decision as to such expert evidence and as if the application for such an expert was made by MDDC for the first time before Mrs Christensen. It needs to be pointed out that Mr Hollow's adjournment of the CMD and the fact that he did not fix a date for a substantive hearing indicates that there was, in his view, some unfinished business of a procedural nature which would or might have to be considered after Dr Lynch had answered the questions; I will turn to this point later.
  28. I need to address one further point before turning to the reasons given by Mrs Christensen for her decision. Ms Stone on behalf of Ms Stevenson argued that Mrs Christensen's order did not shut MDDC out from seeking to adduce psychiatric evidence because, on the terms of that order, it was open to MDDC to seek leave to do so. I accept that, in a technical sense, that might theoretically be correct; but in reality, unless some substantial change in circumstances occurred, a further application for such leave was and remains highly likely to fail. Even if this appeal had not been brought, in the absence of a change of circumstances MDDC could not expect any subsequent Chairman to come to a different conclusion on the same application from that reached by Mrs Christensen and such Chairman might not have entertained any such application; such application would of course have been resisted strongly on behalf of Ms Stevenson; and it would have been argued that the issue was res judicata. In practice, if MDDC regarded it as important that they should be able to call their own psychiatric expert, the only way by which they could achieve that was by appealing Mrs Christensen's decision, as they have done.
  29. Up to this point in this judgment I have, perhaps unusually, identified Mr Hollow and Mrs Christensen by name rather than using the normal formula of "the Chairman". In so doing I have no intent or wish to personalise; I have felt it necessary, in going through the history, to distinguish between the roles which each played. Hereafter I shall refer to Mrs Christensen as "the Chairman".
  30. The Chairman's decision. The law

  31. There is no dispute as to the relevant law.
  32. It is agreed that, pursuant to the 1995 Act as it applied in this case, Ms Stevenson needed, if she was to establish a disability which did not consist of a physical impairment, to prove that she had a mental impairment which consisted of or resulted from a mental illness which was a clinically well recognised illness and which had a substantial and long term adverse affect on her ability to carry out normal day to day activities. Proof of such an impairment in practice is likely to require medical opinion or similar expert opinion (e.g. a psychologist; Dunham v Ashford Windows (UKEAT/0915/04)). Such an expert cannot say what is a day to day activity or whether the effect of the condition upon such activities is substantial; but a medical expert is entitled to put forward an opinion as to the case or otherwise with which a Claimant is able to perform such activities; see Vicary v British Telecommunications Plc [1999] IRLR 680. Where the existence of a disability or of an alleged disability based on mental impairment is in dispute, it is obvious that medical evidence is likely to be of substantial importance.
  33. Regulation 3 of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2004 embodies the overriding objective, first introduced in the Civil Procedure Rules, into the Employment Tribunal's process. Regulation 3 provides, insofar as relevant:
  34. "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;"

  35. Part 35.1 of the Civil Procedure Rules provides that expert evidence shall be restricted to that which is reasonably required to resolve the proceedings. While Part 35 is not directly applicable to Employment Tribunals, it provides valuable guidance as to how case management powers are to be exercised consistently with the overriding objective.
  36. In deciding upon MDDC's application the Chairman was exercising a case management power pursuant to Rule 10 of Schedule 1 of the 2004 Regulations. The authorities are clear as to the limited extent to which an appellate court or Tribunal may interfere with the Tribunal's exercise of such powers. In X v Z Ltd [1998] ICR 43 Waite LJ said at page 54 D to E:
  37. "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.

  38. In Noorani v Merseyside TEC Ltd [1999] IRLR 184, again in different factual circumstances, Henry LJ said at paragraph 32:
  39. "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'."

  40. More recently in Makar v Triad (EAT/0513/06) HHJ Richardson, sitting in the Employment Appeal Tribunal, heard an appeal against an order limiting expert evidence. At paragraph 26 the Judge repeated, as the test on appeal, what had been said in Noorani.
  41. There is therefore no doubt as to the correct test in law which applies for the purpose of this appeal. The Chairman's decision can only be challenged on Wednesbury grounds i.e. misapprehension as to the facts, taking into account irrelevant matters, failing to take into account relevant matters or reaching a decision which no reasonable Tribunal could reach.
  42. Discussion

  43. The party's submissions are, in broad terms, set out in their skeleton arguments; they were, of course, developed in oral argument; but it is not necessary to repeat them in this judgment. Having considered those arguments I reached the conclusion that the Chairman's decision could not stand for the reasons for which I now set out.
  44. (1) The Chairman referred to the overriding objective only in paragraph 7 of her reasons, in the context of delay; but the principal aim of the overriding objective is that cases should be dealt with justly; and that includes, so far as is practicable, that the parties should be on an equal footing. MDDC had been invited to agree to join to the joint instruction of a psychiatric expert at a time when Ms Stevenson's claim had not been put forward on the basis of mental impairment; no application had been made to amend the claim form or for an order for a joint report before Dr Lynch was instructed; and, by the time an application to amend was made, Ms Stevenson already had her own psychiatric expert on who she wished to rely. MDDC were not obliged to accept Dr Lynch's report and were entitled, in my judgment, to take reasonable steps to challenge and dispute his conclusions. While it is true, as the Chairman said in paragraph 1 of her reasons, that no further expert evidence was required to determine the issue of whether or not Ms Stevenson was a disabled person for Dr Lynch's report, on its own, would have entitled the Tribunal to come to a conclusion on that issue – it does not follow from the existence of that report and its being sufficient in the absence of other evidence for the issue to be determined, that it was in some way unreasonable for MDDC to seek by medical evidence to persuade the Tribunal to the view that Dr Lynch was mistaken and that there was no disability arising from mental impairment. So to seek to conduct the litigation would be entirely normal in the employment or in the personal injury field where a psychiatric issue arose in the context of a very substantial claim – as Ms Stevenson's claim plainly is – and where a joint report had neither been agreed nor ordered.
  45. (2) In the circumstances prima facie only by allowing MDDC to seek to adduce such evidence to challenge that of Dr Lynch could the Tribunal comply with the overriding objective of dealing with the case justly and ensuring that the parties were on an equal footing. Unless MDDC had conducted the litigation in someway which rendered it unreasonable for them to seek to dispute Dr Lynch's evidence or if there were no basis on which Dr Lynch's evidence could sensibly be disputed, it could not be just to deprive them of the opportunity to do so. Unhappily the Chairman, in my judgment, did not take the overriding objective's emphasis on dealing with the case justly and even-handedly into account.
  46. That the Chairman omitted this important factor is, in my judgment, confirmed by paragraph 2 of her reasons where she laid stress on the burden of proof on the disability issue lying on Ms Stevenson. The fact that Ms Stevenson bore that burden of proof and therefore had to adduce relevant evidence to discharge it is not of itself, in my view, a relevant reason for declining to permit the opposing party to call expert evidence in order to dispute the expert evidence by which the Claimant seeks to discharge that burden.
  47. (3) I have said above that if a Tribunal justifiably concludes that a party has so conducted itself in relation to the deployment of its own medical expert as to make it unreasonable for that party to be permitted to call that expert, then of course it is open to the Tribunal to refuse to allow that evidence; and if a Tribunal properly concludes that the opposing party has no real basis on which to seek to challenge the evidence of the party which bears the burden of proof, then again it is open to the Tribunal to refuse such permission.
  48. It seems that the Chairman took the view, firstly, that MDDC had behaved unreasonably in seeking to obtain permission from an expert witness at the stage at which proceedings had reached when before her. In paragraph 4 of her reasons she was critical of MDDC for not raising the issue of instructing their own expert until a late stage, following the receipt of Dr Lynch's report and the answers to the questions. I do not see how that criticism could appropriately be made, even taking into account, as of course I do, the wide margin of appreciation which I must and do accord to the Chairman. The history was that, when the question of psychiatric evidence was raised very late in the day by Ms Stevenson's solicitors, those solicitors canvassed the possibility of separate experts while proposing a joint instruction. MDDC at that time declined to agree to joint instructions, Ms Stevenson's pleaded case being that her disability was physical and there being no reference in her claim form to any mental impairment at a time when trial was only weeks away. Ms Stevenson's solicitors did not then seek leave to amend and an order for a joint report. They obtained and disclosed Dr Lynch's report and only then sought to amend.
  49. At the CMD which followed 2 weeks after Dr Lynch's report MDDC were wholly entitled and acted in accordance with good practice in seeking to ask questions of Dr Lynch. There was no suggestion that MDDC, either expressly or implicitly, pursued questions to Dr Lynch as an alternative to calling their own expert. If that had been the case, there would have been no reason for Mr Hollow to have adjourned the CMD as he did; it must inescapably have been in the minds of all concerned at that hearing that, if the answers to the questions were satisfactory to MDDC, no further issue as to medical evidence might arise but that, if those answers were not satisfactory, MDDC would or at least might wish to seek to adduce their own expert evidence. Were that not so, Mr Hollow would, it seems to me, surely have not adjourned the CMD and would have fixed a date for a substantive hearing. As it turned out, the answers to the questions did not satisfy MDDC; and MDDC without delay re-listed the CMD.
  50. In my judgment in those circumstances no reasonable Tribunal could take the view that MDDC had behaved unreasonably in delaying seeking their own expert until after the answers to the questions had been considered.
  51. (4) In paragraph 3 of her reasons the Chairman stated that MDDC's case did not involve any attack on the legitimacy of Dr Lynch's approach or his professional qualifications or ability and did not suggest any irregularity in the way in which he had been instructed. However it is not necessary for a party who wishes to dispute the conclusions of an expert and to do so by calling an expert of his own to demonstrate that his opponent's expert has adopted an illegitimate approach, has insufficient qualifications or ability or has been irregularly instructed. He may do so by calling an expert who, in his professional judgment, reaches an alternative conclusion. The Tribunal then has to choose between the two expert opinions. There is no criticism properly to be made of a party who wishes to dispute the expert evidence of the other party in that way – albeit that the Chairman appears to have thought that there was (see paragraph 6 of her reasons).
  52. I have already set out the factual context in which the issue of psychiatric evidence arose. MDDC suspected malingering and, as they were entitled to do, did not accept Dr Lynch's conclusions. There was no history of mental illness; and Dr Lynch's opinions could fairly be said to be open to dispute e.g. the last two sentences of paragraph 3 under the heading "causation", and the attribution of any psychiatric condition to chronic pain syndrome although Dr Gibson had negated any continuing organic pain. The answers given by Dr Lynch disclose an apparent change of mind as to the onset of depressive symptoms - from April 2005 to November 2004 – and are lengthy and complex and might be said not altogether to answer all the questions posed e.g. question 6. In answer to question 9, Dr Lynch said that there might be different views as to the aetiology of Ms Stevenson's experience of back pain and her psychological symptoms. It could not in these circumstances be said that there was no basis for a challenge to Ms Stevenson's assertion that she suffered from a disability arising from mental impairment, which challenge did not depend upon the lines of attack referred to by the Chairman in paragraph 3 of her reasons.
  53. (5) In paragraph 6 of her reasons the Chairman appears to have based her decision on whether it was necessary to allow MDDC to have the opportunity to challenge Dr Lynch; earlier she said that she had been guided by CPR 35.1; in her reasons she referred to "necessity". Necessity was not the appropriate test.
  54. (6) Finally I must consider the question of delay. The Chairman addressed past delay in paragraph 7 and future delay in paragraph 4 of her reasons. As to the former she appears to have put in the balance against MDDC that the claim was relatively old. However none of the delay up to the hearing before her was attributable to MDDC. The original hearing date in July 2006 was vacated because Dr Gibson did not see and report upon Ms Stevenson until too late. The next date, in November 2006, was vacated because Ms Stevenson's representatives sought to amend the claim form to rely on mental impairment 10 days before that date, although they had had Dr Gibson's reports since early August. I have already said that MDDC cannot fairly be criticised for seeking to eliminate potential medical conflict by asking questions of Dr Lynch once the claim form had been amended. It is apparent that any delay up to the hearing before the Chairman lay at the door of Ms Stevenson's side.
  55. As to future delay, there was no reason why any should have been anticipated. I accept, of course, that if there was any basis for anticipating future delay, that would have been a relevant matter for the Chairman to consider; but there was not. The Chairman ordered the parties to provide unavailable dates for May, June and July (in fact the hearing of the preliminary issue was fixed for 8 to 10 August); she knew therefore that the hearing could not take place for at least 3 months. Ms Stone has not suggested that there was any material before the Chairman to cause her to believe that MDDC would not be able to obtain a medical report well within that 3 month period and within a period which would have allowed for questions and for a joint discussion between the psychiatrists before the hearing. 3 months, on the face of it, would have been ample for those steps. Accordingly the Chairman, in considering future delay, indeed in regarding such delay as inevitable (see paragraph 4 of her reasons) took into account an irrelevant factor.
  56. Miss Chudleigh submitted that the Chairman had further erred in failing to take into account that Mr Hollow had adjourned the CMD for four weeks. I have already referred to that aspect of the history and the bearing which, in my view, it has on the criticism made of MDDC. I do not, however, regard this as a successful freestanding criticism of the Chairman's reasons. The fact that Mr Hollow would have foreseen the prospect of an application by MDDC for leave to call their own expert does not necessarily lead to the conclusion that such leave would have been granted; and I am not persuaded that the Chairman erred in failing to take that factor into account as a point on its own; I repeat, however, that this factor is an important part of the history, for the reasons I have already set out.
  57. However, while I accept without reservation that this was a case management decision, which can only be successfully attacked on the very limited basis clearly established by the authorities and that I must, as I have striven to do, avoid substituting any view of my own for that of the Chairman, I have concluded that the Chairman's decision was perverse for the reasons and in the circumstances set out above. Material factors were omitted; irrelevant factors were taken into account; and, having regard to the fundamental principle of dealing with cases justly and so that the parties were on an equal footing, the decision was one which no reasonable Tribunal could have reached.
  58. The result

  59. These were the reasons why I allowed the appeal. It was agreed that, if the appeal was allowed, I was in as good a position as the Tribunal on remission to determine how the Tribunal should have exercised its discretion in relation to MDDC's application and should state my own conclusion which is that the application should have succeeded and should now succeed. I so conclude for the following reasons:
  60. 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.


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URL: http://www.bailii.org/uk/cases/UKEAT/2007/0196_07_1810.html