Khudados v Hayden & Ors [2007] EWCA Civ 1316

[2007] EWCA Civ 1316

Case No A2/2006/0537

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN’S BENCH DIVISION

THE HON MR JUSTICE BURTON

HQ04X01115

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13th December 2007

Before

THE RT HON. LORD JUSTICE WARD

THE RT HON LORD JUSTICE WILSON

THE HON MR JUSTICE HOLMAN

Between

Etedal KhudadosAppellant

(1) Jacky HaydenRespondents

(2) North Western DeaneryRespondent

(3) Pennine Acute Hospitals NHS TrustRespondent

Mr Paul Epstein QC and Mr Simon Dyer (instructed by Kirby Simcox) for Appellant

Mr Paul Gilroy QC (instructed by Office of the Solicitor, DWP and DOH) for Respondents

Hearing Hearing date: 31st October 2007

Judgment

[1]This is the renewed application by Dr Etedal Khudados (whom I shall call “the claimant”) for permission to appeal which Sedley L.J. and I directed should be heard on notice to the respondents, Professor Jacky Hayden, the North Western Deanery (“the Deanery”) and the Pennine Acute Hospitals NHS Trust (“the Trust”). The order under appeal was made by Burton J. on 28th February 2006 when he dismissed the claimant’s claim with costs.

[2]That was a claim for injunctions requiring the Trust to withdraw its notice of dismissal and to reinstate the claimant’s employment, to reinstate her national training number and to restore her on a programme of postgraduate training in neurosurgery. She also claimed damages.

[3]The claimant qualified as a general surgeon in 1987. She commenced employment with the Trust on 13th December 1999. She was employed as a Specialist Registrar with a view to undertaking training leading to a Certificate of Completion of Specialist Training in neurosurgery run by the Deanery, Professor Hayden being the Dean. Her employment was dependent upon her continuing to hold a national training number which had been issued to her in 1996. So long as it is held, a trainee has, subject to acceptable performance, a guarantee of a continued place on a training programme. She alleged that it was a term of her employment that the Trust would not seek to terminate that employment by reason of purported non-compliance with the terms of her training contract enshrined in the Department of Health’s Guide, commonly referred to as the Orange Book.

[4]Unfortunately in June 2000, she was given an unfavourable Record of In-Training Assessment, the so-called RITA annual review, which she did not and would not accept and in the light of the deadlock which ensued, she was suspended from duty on full pay with effect from 16th January 2001 “pending further investigation”.

[5]On 3rd April 2001 she commenced proceedings in the Employment Tribunal complaining of sex and race discrimination in relation, among other matters, to the manner in which her training had been conducted. Her complaints were dismissed on 9th October 2003 after a five week hearing during which she ably represented herself. She appealed but her appeal was eventually dismissed on 26th November 2004.

[6]In October 2003 she was warned that failure to accept the RITA assessment would be treated as a fundamental breach of her training contract and her employment. She was unable through illness to attend a meeting on 28th October when it was decided in her absence to recommend the removal of her national training number and to terminate her training contract. She failed to attend a hearing by way of an appeal from those decisions and they were confirmed on 16th January 2004. On 23rd January 2004 the Trust gave notice of termination of her contract of employment, the notice expiring on 22nd April 2004.

[7]A week before that notice expired, she brought her claim and on 21st April 2004. Elias J. accepted an undertaking by the Trust to extend her notice until after the trial and her usual cross-undertaking in damages. It was ordered that there be an expedited trial on the first open date after four weeks, listed for two-three days. The trial was later fixed for 14th July 2004. The remarkable feature of this case is that notwithstanding that direction for an expedited hearing, it was adjourned five times before coming into the list to be heard by Burton J. in February 2006, very nearly three years after it commenced. It is necessary to examine the reasons for those adjournments.

The earlier adjournments

[8]The first: the July 2004 trial date was vacated on the grounds of personal difficulties of the claimant’s counsel. It was subsequently re-fixed for 2nd November 2004, but the time estimate had now increased to five days.

[9]The second: on 29th October 2004, the Friday before the trial was due to commence on Tuesday 2nd November, the claimant applied for an adjournment firstly because her new solicitors instructed a fortnight or so earlier needed additional time, and secondly because of the claimant’s ill health. She produced a medical certificate dated 28th October 2004 from Dr Sampson stating no more than this:

“This lady was seen in the GP’s surgery today and I consider her unfit to attend a hearing at present. I would be grateful if it could be postponed for perhaps six weeks.”

[10]Roderick Evans J. adjourned the hearing to 6th December 2004 and ordered that any application to vacate should be in writing and on not less than seven days’ notice and further that the claimant should supply to the court and to the defendants a detailed medical report as to her fitness to attend the trial by 1600 hrs on 23rd November 2004. She was ordered to pay the costs thrown away.

[11]The third: the detailed medical report from Dr Sampson was dated 17th November 2004 and was sent to the defendants’ solicitors by yet another firm of solicitors instructed by the claimant. They asked whether the defendants would be prepared to agree to an adjournment until mid-January. That request was refused and the defendants’ solicitors wrote to the claimant’s solicitors on 24 November explaining that:

“While not wishing to be unsympathetic if your client is genuinely ill we are concerned about your client’s tendency to seek to postpone meetings and hearings on the grounds of her ill-health, when such postponements are to my clients’ detriment. In order to obtain a more objective view… the Trust will be writing to your client to ask her to attend an occupational health assessment.”

[12]That forced the claimant to apply to adjourn on the ground of her ill health and the application must have been opposed by the defendants. Eady J. granted the application on 3rd December 2004 and, significantly, ordered that the claimant had her costs of the day. He must have considered the defendants’ opposition to the adjournment was unreasonable. At least two medical reports were placed before the court.

[13]The first was the detailed report from Dr Sampson dated 17th November 2004 in which he said:

“She has been suffering from severe abdominal pains and has a past history of a duodenal ulcer. Blood tests so far show a very elevated ESR over 50 and this is a non-specific marker of a number of medical conditions. In her case I suspect it is related to a recurrence of her ulcer. She has been given ulcer medication which has not had any beneficial effect and she is now awaiting a hospital appointment. She will almost certainly require an endoscopy. Her abdominal pains have caused her significant distress and have interfered with her sleep, further aggravating the stress that she is already under. It is not surprising that her current situation regarding the ongoing litigation is causing her great stress which may have precipitated the recurrence of her ulcer in the first instance. In the light of the above I believe she is unfit to attend a trial at present on the re-listed date of 6 December 2004. By the end of December 2004 I anticipate that the necessary investigations including endoscopy would probably have been completed and that she would have had the necessary rest to benefit from her treatment and made the recovery that would enable her to attend a trial in January 2005.”

[14]The second was a report from Dr Tibbs, a consultant gastroenterologist, dated 1st December 2004 which read as follows:

“This lady came to see me at Parkside Hospital this evening. She has a history of duodenal ulcer originally diagnosed in 1985. In the last two months the pain from this has become increasingly severe and persistent to the extent that she is now doubled over with epigastric pain. Although treatment with Omeprazole has relieved the pain to a limited extent she continues to have severe pain and needs an urgent endoscopy. She has been referred on the NHS for this and I will do my best to expedite her endoscopy appointment, but I feel that at the moment it is not reasonable to expect her to prepare evidence for a Court Hearing, to appear in Court on the 6th December and endure a trial of five days as her life has become dominated by her pain which clinically at any rate is coming from a recurrence of her duodenal ulcer. As I am sure you are aware duodenal ulcer disease is often recurrent and may be made worse by stress, particularly if this is prolonged over a period of a number of weeks or months. Although treatment with Omeprazole may relieve the symptoms, a more prolonged treatment is often necessary to heal the ulcer itself and an endoscopy would confirm whether or not treatment has been effective and also allow us to determine whether the ulcer is related to infection with helicobacter pylori. In the circumstances I think it would be perfectly reasonable to defer her Hearing until the New Year and as she has genuine medical grounds for this deferment I would think it unreasonable for her to bear any further costs over this issue. I will have further information once we have endoscoped her but as she has no private health insurance this will have to be done on the NHS and I would anticipate that it is unlikely to be done before the middle of this month. I would be happy to supply any further information if further details are required.”

I would be happy to supply any further information if further details are required.”

[15]The claimant duly attended the appointment arranged for her by the Trust. She saw Dr Andrew Thillainayagam in Harley Street and his report dated 3rd December 2004 was copied to the claimant and to Dr Sampson. It is not clear whether it was placed before Eady J. but bearing as it does the same date as the hearing, I assume it arrived too late for the hearing. Because it will be necessary later to analyse to what extent, if at all, the information given by him differs materially from that which can be gleaned from Dr Sampson’s and Dr Tibbs’s reports, it will be useful to set it now. It reads as follows:

“I was asked to see this 42 year old woman of Persian origin who is a trainee neurosurgeon in order to assess her ongoing apparently acute clinical problems and offer an opinion as to whether she will be fit enough to attend a High Court hearing on Monday 6th December 2004. Ms Khudados was diagnosed with a duodenal ulcer in 1985 when she was an SHO in Accident and Emergency at the West Middlesex Hospital. Severe epigastric pain and intermittent vomiting eventually led to a gastroscopy by a Dr Faraj who found a duodenal ulcer. She received several weeks of treatment with oral Bismuth Subcitrate and Ranitidine and eventually became symptom-free. The following 18 years or so saw a number of relapses which she treated herself using oral Ranitidine and Gaviscon. She admitted that none of the relapses were anywhere nearly as severe as the index episode which began in the 1980s. Unfortunately, in about mid-October she had severe and frequent, albeit intermittent bouts of vomiting and epigastric pain without radiation. The epigastric pain is of a gnawing nature and does not radiate retrosternally or into the back, but can last several hours at a time and can often wake her up in the early hours of the morning, typically around 0200 hrs. In addition to the frequent nausea and intermittent vomiting, there is very frequent belching and regurgitation. The consumption of coffee, spicy food and pickles leads to severe symptoms and she has therefore taken to eating an extremely bland diet which now comprises only bread, cheese, yoghurt, and water, for fear of precipitating severe attacks. Direct enquiry revealed no other symptoms of note, and although her sleep is disturbed by severe attacks of pain and regurgitation, she denies any symptoms that would suggest a significant disorder of affect. Ms Khudados saw my friend and colleague, Dr Christopher Tibbs and he had increased her Omeprazole 20mg bd plus Domperidone 20mg bd with as yet marginal effect on her symptoms. She is also consuming large amounts of Gaviscon. … Ms Khudados has a history of duodenal ulcer disease in her family (her mother and two maternal uncles) but she is a non-smoker who is teetotal and the remainder of the history was utterly unremarkable. At physical examination, it was clear that the patient was physically and mentally exhausted. However, she was clinically euthyroid and there was no evidence of a goitre. She was clearly morbidly obese, … A systematic assessment revealed no other physical signs apart from moderately severe deep epigastric tenderness without rebound. It should be pointed out that she had the “closed eye sign” during palpation. I did not perform digital examination of the rectum. It would be most unusual for a duodenal ulcer not to respond significantly to several weeks of treatment with a proton pump inhibitor. However, many of Ms Khudados’s current symptoms are relatively new and are compatible with gastroesophageal reflux disease. I suspect there will be a significant improvement now that she is on a higher dose of the anti-secretory drug and is taking additional prokinetic therapy. I would in fact suggest that she switch from Omeprazole to Esomeprazole, a potentially more potent proton pump inhibitor, and continue the Domperidone. It is vital that Dr Tibbs expedites her endoscopy so that it is done next week, and I would suggest that she has an ultrasound scan of the abdomen and pelvis, largely because it would help to reassure the patient that there was no underlying significant structural problem in the pancreas for example. Clearly, the patient has significant anxiety depression, in my view, and there is a significant amount of functional overlay in her perception of the pain. Nevertheless, she is not really in any fit [state] to attend a tribunal and answer questions coherently. It would not be in the best interests of the court or opposing counsel for the patient to be forced to present herself at court in her current physical state. … I do not feel any further investigations other than an endoscopy and ultrasound scan for the abdomen and pelvis are indicated at the moment. Finally, my advice would be that the patient is endoscoped next week and put onto maximal antisecretory and prokinetic therapy. She should be a lot better therefore within two to three weeks and would then be able to prepare herself for a tribunal a further four weeks hence. It would be sensible therefore to postpone the date of the tribunal/court hearing to the end of January or beginning of February. Obviously, any more definitive advice could only be offered once an endoscopy has been performed. By the way, it is imperative that all regions of the stomach are biopsied for histological exclusion or confirmation of infection with H. pylori in view of the previous peptic ulcer diathesis.”

[16]In the event the hearing was re-listed for hearing on 11th April 2005, again with a time estimate of five days. On 4th April 2005, however, the claimant served a supplementary witness statement, 55 pages long. This should have been served by 9th June 2004. The more significant fact was that she was now making new and substantial allegations of bad faith against Professor Hayden.

[17]The fourth: the matter was called on before Pitchers J. on Monday 11th April 2005. At the outset there was argument as to the admission of the supplementary witness statement. The judge allowed it but the inevitable consequence was that the trial could not then proceed. Directions were given to re-amend the particulars of claim and the trial was adjourned to 13th June 2005, and now with a time estimate of 25-30 days. The claimant had to pay the wasted costs.

[18]The fifth: on 27th May 2005 the claimant applied for an adjournment for two months because her latest solicitors had come off the record despite her opposition. She said she was overwhelmed by receiving thirteen witness statements from the defendants and she contended she was unable to deal with the matter without advice. Eady J. granted the adjournment on 9th June 2005 and the trial was eventually fixed for 27th February 2006, with costs in the case.

The February 2006 hearing

[19]The hearing was to start on Monday 27th February. On Thursday 23rd February Eady J. heard an application by the claimant for the hearing listed for 27th February 2006 to be adjourned for two months because:

“I do not have legal representation at present due to my inability to find counsel who would be available to attend the trial listed for 27th February 2006 for 25-30 days continuously as this trial window was wholly determined by the defendants without my knowledge.”

In her supporting statement of truth she stated that she first received notification of the hearing on 5th November 2005 but she was “faced with great difficulty in finding counsel who would be available for the listed trial”. Her evidence suggested that her difficulty was in finding counsel able to take on a long trial at comparatively short notice and she exhibited certain emails from counsel or their clerks suggesting that they were unavailable. These emails had been redacted but it was possible nonetheless to read the words that the black ink was supposed to cover. The concealed parts suggested that the true reason for not being willing to take on the case was not only unavailability but a reluctance to do the case on a conditional fee arrangement. The claimant was represented by counsel on the application to adjourn and the defendants were represented by Mr John Hand Q.C. We do not have a transcript of what took place at that hearing. All we know is that Eady J. dismissed the application to vacate and ordered the claimant to pay the costs. He concluded that the emails had been misleadingly redacted. In any event he was satisfied that she had had ample time to find legal representation.

[20]What is significant about that application is that there was not a single word mentioned about the claimant’s ill health. In his skeleton argument counsel submitted on her behalf that:

“What the claimant is seeking is some breathing space, not for her, but so that she can approach counsel and not be immediately hamstrung by an impossible trial date.”

[21]No application has been made to appeal Eady J.’s order. Instead, as the parties left court on that Thursday, the claimant stated to the defendants’ solicitors that she would apply again for an adjournment. That evening in an email timed at 19.34 she wrote to the defendants’ solicitors saying:

“I write to inform you that I am intending to re-apply for adjournment of the trial listed on Monday 27th February 2006 before the start of the trial as it is impossible for me to represent myself at the High Court for 25-30 days. I have already alerted you with my intention this morning at the end of the adjournment hearing that took place at the High Court.”

[22]Written in her hand on the copy of that letter in the court bundle are these words:

“The grounds from adj. were the submission of emergency legal aid application. This was mentioned by counsel at end of hearing on 23 Feb 2006.”

There was still no mention of ill health.

[23]The first intimation of this came in a letter dated 24th February 2006 marked “Very urgent sent by fax and post” to the court, it is thought at about 1pm on that day. The claimant wrote:

“Please find enclosed a copy of my GP letter, the contents of which is self-explanatory. I am writing to ask for adjournment of the hearing listed on Monday 27th February 2006 on the grounds of ill health. An appointment to see a Specialist is in the process to be made as soon as possible.”

The GP’s letter is from Dr Sampson dated 24th February 2006 and it states:

“This lady attended the surgery today having had a flare up in her symptoms of abdominal pain for the past two weeks and having been up in the night with vomiting and nausea. I understand that the court case, which was postponed from last year, is due to take place on 27th February 2006 and she feels unable to attend court. She has been restarted on Omeprazole and Fluoxetine today and will need review in approximately four weeks, or sooner if she deteriorates significantly. I believe that she is medically unfit to attend court at present and would be grateful if the hearing could be postponed by approximately four weeks to allow for her recovery.”

It seems that those documents were sent to the defendants’ solicitors by email at 16.07 on Friday. The defendants’ solicitors responded at 16.27 pointing out they were still awaiting her formal application to the court to adjourn the hearing and they asked whether she would confirm whether she would be attending court on Monday morning. She responded that her letter constituted her application and she confirmed “that I am unable to attend the court on Monday 27th February 2006 as certified by my doctor’s letter.”

[24]On Sunday 26th February, Mr Paul Gilroy, then junior counsel, met with his leader Mr John Hand Q.C. to prepare for the trial the following day and to prepare for the application for the adjournment. Together they prepared a skeleton argument to deal with that application.

[25]The case was duly called on on Monday morning 27th February and, as was to be expected, the claimant did not attend. Mr Hand put in his skeleton argument. He very fairly submitted that beside the options simply to refuse the application or to grant it there was a third middle course approved by the Court of Appeal, for use, in certain circumstances, namely:

“… to adjourn the trial for a very short limited period (say up to 7 days) to enable the court to obtain answers from a suitably qualified medical expert to a series of questions addressing the issue of the claimant’s ability to attend trial.”

It was observed that although the medical report referred to the flare up “for the past two weeks”, not the slightest hint of that development had been given at the hearing on 23rd February. Mr Hand pointed out that there was no information about whether the claimant had undergone the endoscopy suggested by Dr Sampson in his letter of 17th November 2004. Moreover “it was plainly Dr Tibbs’ intention at that time that the claimant should be investigated by endoscopy” and so “it is submitted that it is unacceptable for the claimant yet again to seek the court’s indulgence without producing any information (let alone medical evidence) as to that investigation and its outcome.” Copies of those two reports were annexed to the skeleton argument. The skeleton argument set out full citations from the judgments of Peter Gibson L.J. and Arden L.J. in Teinaz v London Borough of Wandsworth

[2002] EWCA Civ 1040

, [2002] I.R.L.R. 721, and of Peter Gibson L.J. in Andreou v The Lord Chancellor’s Department

[2002] EWCA Civ 1192

, [2002] I.R.L.R. 728. Counsel was at pains to point out:

“For the avoidance of doubt, the defendants are not in any position to question the genuineness of the evidence concerning the claimant’s condition, merely its sufficiency.”

Finally counsel addressed their reasons for refusing to vacate the hearing but in dealing with the option to adjourn for clarification purposes, they “proffer[ed] the suggestion that the court appoints a suitably qualified independent gastroenterologist, such a person to be nominated by the appropriate Royal College” and suggested a range of questions to be put to the expert namely:

“(a) What is the specific diagnosis in relation to the claimant? (b) What is it about her condition which makes her presently unable to attend court? (c) Did the claimant undergo an endoscopy after she saw Dr Tibbs on 1st December 2004? If so what were the findings? (d) What is the prognosis, and in particular: (i) Would she be able to attend court with effect from 6th March 2006? (ii) If not, specifically why not? (iii) Given the history, and in particular the apparent flare up in her condition in both November 2004 and February 2006, immediately before trial, what are the prospects for such a flare up happening again if the trial were to be listed for some time in the future? (iv) When, if ever, is the claimant ever likely to be fit to attend a hearing for a period of 15-25 days consecutively and give evidence for a substantial period of that 15-25 day period consecutively?” (i) Would she be able to attend court with effect from 6th March 2006? (ii) If not, specifically why not? (iii) Given the history, and in particular the apparent flare up in her condition in both November 2004 and February 2006, immediately before trial, what are the prospects for such a flare up happening again if the trial were to be listed for some time in the future? (iv) When, if ever, is the claimant ever likely to be fit to attend a hearing for a period of 15-25 days consecutively and give evidence for a substantial period of that 15-25 day period consecutively?”

[26]Burton J. decided to adjourn the hearing over to the following day in order to give the claimant an opportunity to respond to the submissions contained in that skeleton argument. At 4 pm on February 27th the judge’s clerk sent an email to the claimant informing her of the adjournment until 10.30 am the following morning “when after hearing any further argument from the claimant if she so decides and from the defendants the judge will decide whether to adjourn the case or to dismiss it. A copy of the skeleton argument by the defendant opposing the adjournment was emailed to the claimant this morning. If it was not received I can send you by fax or email now a further copy but the judge wishes to be sure that the claimant has had the opportunity to see it and to make any submissions in time for tomorrow.” The claimant replied at 4.15 pm saying that the skeleton she had received was for the main hearing and asking for the skeleton argument opposing the adjournment to be sent through to her. That was duly emailed to her at 4.27 pm and acknowledged at 4.40 pm. We know from documents put in by the claimant that she was seeking some help from a medical friend to whom she emailed the skeleton argument at 17.36 and asked her friend to help her address it. Her friend responded at 10.52 with a draft reply, but adding “say this and no more unless you really feel you need to – they are winding you up and the judge will not be impressed”.

[27]Accepting her friend’s advice, the claimant emailed the court at 1.16 on 28th February in these terms:

“I have applied for an adjournment on medical grounds stating the reason to be the flare up of my ulcer. The court will see that I have been prescribed Omeprazole for my ulcer and Fluoxetine for my reactive depression which has been brought upon me by the oppressive behaviour of the defendants, who have already deprived me of my livelihood and now my income. The defendants have served me with a 12 page skeleton argument late on the day before the hearing questioning my medical condition and also questioning my medical condition 15 months ago which has little or no bearing on my present condition other than to prove to the court that I suffer from a recurrent ulcer and that this is a condition which may flare up into acute condition after a period of remission. I was fit and healthy to attend the trial last April and had the support of a full legal team but the defendants requested an adjournment and for the trial to be relisted for 25-30 days instead of its original estimate of 3-5 days. It is clear to the court that a series of life events such as I have suffered over recent times would cause the most robust of persons to become reactively depressed. Indeed the death of a loved one, such as my mother was, would cause any normal person to suffer a grief reaction, so severe that it might give way to depression as it has in my case. I submit that this together with the loss of my career and now the loss of my income is sufficient to make me reactively depressed to the extent that my doctor has prescribed anti-depressants. The ulcer is not new. Moreover, I would suggest that for the defendants to question my own doctor as they have to the extent that they wish the court to now appoint a court medical expert to assess my condition implies that they: 1. Do not believe my own GP to be either competent or reliable or even truthful, which in itself is an extremely serious allegation for the defendants to imply against a professional person. 2. Intend to deprive me of my right to choose my own physician and to subject me to further oppressive, humiliating and unreasonable treatment by forcing me to undergo a medical examination. I therefore, ask that the court either adjourns or stays further proceedings for three months. This would be in the interests of Justice and the Overriding Objective and ensure a fair trial under Article 6. An adjournment of three months would also allow me to recover and avoid an appeal should the court alternatively dismiss my case as the defendants have also suggested the court does, in my absence through ill health.”

The judgment under appeal

[28]The judge referred to the “substantial critique of the medical position” as set out in Mr Hand’s skeleton argument and concluded:

“21. There is no doubt that the claimant suffers from a recurring abdominal problem, but there is a clear question over what its impact is.”

He noted that Mr Hand had drawn his attention to Teinaz and Andreou:

“… both of which emphasised the care with which the court must consider an adjournment application, particularly one which, as this one does, would lead, if the adjournment application were refused, to a dismissal of the claim. He has also drawn attention to the possibility, adopted in Andreou, namely of an adjournment for a medical examination to be carried out …”

Having cited from the claimant’s letter sent to the court that day and to the claimant’s objection to “further oppressive, humiliating and unreasonable treatment by forcing me to undergo a medical examination”,

the judge said:

“28. This would render the adoption of the Andreou route impossible or at best problematic.”

He addressed Mr Hand’s submissions of the logistical difficulties faced by the defendants who had to arrange for a number of neuro-surgeons, all of whom are extremely busy clinicians carrying out surgery of the utmost seriousness and importance, to cancel fixed clinical sessions, thus disrupting NHS activity. Identifying successive slots of five weeks had proved to be extremely difficult for the defence.

The judge concluded:

“30. In the exercise of the discretion which I have in relation to the grant or refusal of this adjournment, and having considered those authorities to which I have been referred, and the Overall Objective and the interests of both parties and of a fair trial, I am entirely clear that this application for an adjournment must be refused, even though it has, as is clear from the letter from Ms Khudados, the inevitable consequence, as she does not attend, of the dismissal of her claim on this, the second day of what should have been the final hearing of her claim. I bear in mind in particular the following: i. This is a very old case. The facts, as appear in the witness statements which I have, stem back to 1997. A speedy trial was ordered in April 2004 to take place within a very short time thereafter. ii. The allegations that are made against the defendant and which include allegations of bad faith set out in some detail, pursuant to which one of the adjournments was granted, have been hanging over the defendant and it is not just that they should continue to do so. iii. This will be the sixth hearing to be vacated if it were vacated. iv. This application is a renewed application for an adjournment refused by Eady J, made on grounds that could have been put before him. That is plain from the description of the medical condition as having flared for the last two weeks in the letter from Dr Sampson. The strength of those grounds is undermined by the very absence of mention of them before Eady J. v. There are very meaningful problems for the defendant if an adjournment, yet again, were permitted in this case, in terms of the substantial inconvenience for a large number of people, quite apart from the very heavy costs. vi. It ought not to be in the interests of the claimant to have these continuous adjournments of her claim. However, the very absence of prejudice to her by the continued undertaking, as recently varied by Jack J, to which I have referred, has perhaps contributed to the problem, in making it too easy for her to assume that an adjournment may follow and live with its consequences: and although she has given a cross-undertaking in damages, there may still be possible prejudice to the defendant in any event, in case it should turn out that the claimant is not good for her undertaking. vii. I am very unimpressed indeed at the state of the medical evidence before me, particularly given the absence of mention of any problem before Eady J, but exacerbated by the brevity of Dr Sampson’s letter and the absence of exposition as to what happened after November and December 2004. This is not a case in which new medical advice has entered the scene. Dr Sampson himself wrote the letter in November 2004, to which I have referred, and appreciates that this is yet a further adjournment of the same case, so that what (if anything) occurred thereafter must have an obvious relevance. Its absence is significant and underlies the lack of merit in the purported criticism which the claimant seeks to put forward in her letter of today, which I have read. Even without the claimant’s obvious reluctance for there to be any kind of medical investigation such as would be involved in the Andreou route, there is insufficient evidence before me to justify consideration of that route. That might be appropriate if there were some medical case put forward which required investigation. I am satisfied that there is no sufficient case that there is anything in the claimant’s medical condition which has now rendered it impossible for her to proceed with her case. In both Teinaz and in Andreou there was representation before the tribunal of the party seeking the adjournment. In the course of submissions, it could be explored whether and to what extent further examination of the medical position could be initiated. In this case, however, the claimant has not attended or been represented, and, indeed, has positively ruled out the question of any further medical examination. It is clear from the letter that the issue so far as she is concerned is limited to her reservation of a right to appeal if this case is either adjourned today or dismissed. viii. In any event the medical condition is not new. I am satisfied that it is really a back door way of getting round Eady J’s order. There have been five weeks of trial when the claimant represented herself in the Employment Tribunal, without success, and there have been now six hearing dates in the High Court. 31. Enough is now enough. The application for an adjournment is refused. ”

The appeal

[30]Sir Henry Brooke refused permission to appeal on the papers before him giving these reasons:

“The appellant did not seek to appeal against the order of Eady J. on Thursday 23rd February 2006 refusing her an adjournment of the trial. Nor did she refer to any ill-health in her email message later that day. In these circumstances the trial judge, in the exercise of his discretion, was entitled to be a little sceptical about the validity of the suggestion that the claimant, although fit to attend the court on the Thursday, was unfit to attend court on the following Monday, and to take all the other matters to which he refers in his judgment in deciding where the balance of justice (to both sides) lay. I see no real prospect of success on this appeal against the exercise of discretion by a very experienced trial judge.”

[31]The claimant renewed her application and counsel appeared on her behalf before Sedley L.J. and me. In requiring the matter to be heard on notice to the respondents we were troubled, not only about questions of proportionality, but also and particularly about the complaint that the report of Dr Thillainayagam, referred to in paragraph 15 above, had not been placed before the judge.

The main issues raised before us

[32]Mr Paul Epstein Q.C. and Mr Simon Dyer appeared for the claimant. Mr Epstein may be new to the case but Mr Dyer appeared on her behalf on 3rd December 2004 when the matter was before Eady J. Mr Paul Gilroy Q.C. represented the defendants. The main plank of the claimant’s submissions to us was that relevant material, namely Dr Thillainayagam’s report was not placed before the judge, the submission being that had it been, then the judge would have, or at least might have, granted at least a short adjournment to enable any deficiencies in the medical evidence to be cured. His secondary attack was directed to paragraph 30 vii and viii and the judge’s conclusion that there was no sufficient case for saying that there was anything in the claimant’s medical condition which then rendered it impossible for her to proceed with her case. He submits the judge was not entitled to reject the medical evidence before him. The prejudice to the claimant was so overwhelming that clarification should have been sought to overcome any scepticism that the judge may have entertained.

Discussion

[33]Strictly speaking, the correct order in which to approach these issues would be to start with the second because we are conducting a review of the decision of the lower court and, unless the appeal court orders otherwise, it will not receive evidence which was not before the lower court: see CPR 52.11. Ordinarily, one reviews the trial judge’s decision and if it is shown that he went wrong, the appeal is allowed without reference to any fresh evidence. If, on the other hand, that decision cannot be impugned as it stands, then the appeal court will go on to consider whether or not to admit the fresh evidence and, if it does, then to decide whether the new material compels a different result. The claimant was acting in person when she filed her notice of appeal and prepared her bundles and placed a copy of Dr Thillainayagam’s report before us. No objection has been taken by the defendants. Nor have they objected to her putting in a further medical report obtained by her after Burton J.’s judgment, namely the report of Dr Stephen Kane, a consultant physician and gastroenterologist, dated 18th March 2006. Again Mr Gilroy takes no objection, indeed he relies upon it. Since we have concentrated our efforts on looking at those reports, it is convenient to take the primary case first.

[34]The point was taken by the claimant herself in the grounds of appeal she submitted:

“(c) Due to my illness and the fact I was a litigant in person, I had no representation to rebut the allegations made against me by the defendants’ leading counsel at court on 27th and 28th February 2006. (d) Essential information were (sic) hidden form (sic) the court. The defendants omitted vital evidence which is relating to the name of their medical specialist Dr Thillainayagam, and his own two medical reports supporting that my previous illness relating to the same symptoms was genuine. Prior to my appointment to see their medical specialist, the defendants formally expressed that they had doubts that my illness was genuine.”

[35]As I have set out, Mr Epstein’s submission depends on two propositions:(1) that the defendant should have placed the report before the judge and

(2) if the judge had had his attention drawn to it, his scepticism would have been allayed and he would or might have granted the claimant a further indulgence. As I pointed out to Mr Epstein in the course of the argument, the first proposition begs the question: was there a duty on counsel to draw this evidence to the judge’s attention? Having considered the matter over the short adjournment Mr Epstein made it emphatically clear that he was casting no aspersions on the professional integrity of counsel. He submitted that because CPR 1.3 required the parties to help the court to further the overriding objective to deal with cases justly, then in fairness Dr Thillainayagam’s report should have been before the judge.

[36]We did not have extensive argument about counsel’s duty but the following tentative observations can be made. The Bar Code of Conduct lays down these rules:

“302. A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court. 303. A barrister: (a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests … … 708. A barrister when conducting proceedings in Court: … (c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues.” (a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests … (c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues.”

[37]Mr Gilroy was most concerned by the allegation that he and Mr Hand had failed to disclose material information to the court. He told us that he and Mr Hand did not know until shortly after 3rd April 2007 that we had adjourned this matter to be heard on notice with the appeal to follow. They did not see the appeal notice and skeleton argument until late in September and they did not see the transcript in which I had expressed my concern until late in October. They have since then racked their brains as to how they prepared their skeleton argument 18 months earlier. They cannot recall whether they discussed Dr Thillainayagam’s report. They certainly had no reason, still less any intention, to deceive the court. I unhesitatingly and unreservedly acquit them of deceiving or knowingly or recklessly misleading the court and it is worth repeating that Mr Epstein does not suggest otherwise: indeed he makes no complaint about their professional conduct. Mr Hand and Mr Gilroy can put this worry completely behind them.

[38]The question is to what extent if at all a barrister who must promote and protect fearlessly and by all proper and lawful means his lay client’s best interests is bound to disclose evidence favourable to the other side. I draw the distinction between evidence favourable to the other side and law in the form of all relevant decisions and legislative provisions which may be unfavourable towards the contention which he argues. It seems to me that the better view is that a barrister would fail in his duty to his own client were he to supplement the deficiencies in his opponent’s evidence. The fact that the other side is a litigant in person cannot make any difference as to the manner in which he fulfils his duties to the client, to the other side and above all to the court. In my judgment, counsel cannot be criticised for failing to disclose the further report.

[39]What of CPR 1.3? The language of the rule is couched in terms that “the parties are requiredto help the Court” and the rule is headed “Duty of the Parties”. Accepting for the purpose of the argument that there is a duty, and that the duty falls on the legal advisers as well as the litigant, it is at most a duty to the court, not to the other side. The duty is to help the court further the overriding objective. The primary duty to further the overriding objective is one imposed on the court itself. It is the court which must dispose of the cases justly. Dealing with a case justly includes, so far as is practicable:

“(a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways that are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly, and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

In ensuring that the case is dealt with fairly, the court will try to ensure fair play. Ensuring that the parties are on an equal footing requires the court to ensure that each party is afforded a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis à vis his opponent. In my judgment fairness does not require counsel to place his own client at a substantial disadvantage by acting contrary to his interests. Whatever may be the requirement to help the court, it cannot in my judgment, extend so far as to impose upon counsel a duty in conflict with his proper duty to his client. (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party;

[40]It follows that there was no obligation on Mr Hand and Mr Gilroy to disclose this report, and this complaint falls away but in fairness to counsel I should go on to consider whether it would have made any significant difference.

[41]Dr Thillainayagam’s report set out at [15] above is more comprehensive than those of Dr Sampson and Dr Tibbs set out at [13] and [14] above. But there is, in my judgment, nothing new in his report. If anything, Dr Tibbs is the most dramatic in speaking of the claimant “doubled over with epigastric pain” which portrays her symptoms more vividly than “epigastric pain … of a gnawing nature [which] does not radiate retrosternally or into the back, but can last several hours at a time and often wake her up in the early hours of the morning …”. Each of the reports recommends an endoscopy as an aid to further diagnosis. Each refers to her being under stress and I do not read Dr Thillainayagam’s reference to her having a “significant anxiety depression … (with) a significant amount of functional overlay in her perception of the pain” to be adding anything of great significance.

[42]The best point that can be made for the claimant is that putting this further report before the judge would have reminded him that it was procured at the instigation of the Trust and it may, therefore, have inclined him to be more sympathetic to the possibility of requiring the claimant to submit to a further urgent examination. The claimant’s insuperable obstacles in advancing that argument are:(1) She could have made the point herself. She was quick enough when filing her notice of appeal to complain about the omission of this report in the evidence submitted to the judge and if she was capable of making the point then, she was capable of putting the point to Burton J. She failed to do so. It lies ill in her mouth to complain about a specious breach of duty by the defendants’ counsel when the very point escaped her own attention.

(2) Any notion that she might have been prepared to undergo a further examination is utterly destroyed by her intractable refusal to be subjected to “further oppressive, humiliating and unreasonable treatment by forcing me to undergo a medical examination” – see her letter to the court set out in paragraph [27] above.

[43]Although, therefore, I was troubled by this omission when hearing the renewed application for permission to appeal, I am now totally satisfied that there is no blame whatsoever on the defendants’ counsel for not drawing it to the judge’s attention, that she could have done so herself; and, in any event, it would not have led to any longer adjournment than that which was afforded her overnight.

[44]Turning, therefore, to the grounds of appeal which attack the judge’s exercise of discretion, I begin, inevitably, by reminding myself that the decision whether or not to adjourn a case is taken as one of the general powers of case management exercised by the court having regard to the overriding objective. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task.

[45]The judge correctly directed himself to have regard to CPR 1.1, to the interests of both parties and to the need for a fair trial. It is, nonetheless, no surprise that the claimant should complain that her rights under

Article 6 of the European Convention on Human Rights

had been breached. That complaint is ill-founded. Her entitlement to a fair trial means no more than that she should have a reasonable opportunity to put her case. Burton J. was assiduously fair in keeping her informed of the arguments ranged against her, ensuring she had sight of the defendants’ skeleton argument opposing her application for an adjournment and inviting her participation. She rebuffed his overtures. She cannot now complain that she was denied an effective right of access to the court. Before passing from Article 6, it is worth observing, first, that everyone is entitled to a fair hearing and that must include defendants as well as claimants. Secondly, Article 6 guarantees a hearing “within a reasonable time” and so the nature of and consequences of the delay are also relevant. Thus the judge was entitled to have regard in paragraph 30 i to this being “a very old case” in which a speedy trial had been ordered nearly two years previously.

[46]He was also entitled - see 30 ii - to take account of the effect of allegations of bad faith hanging over the defendants for that length of time. He noted in 30 iii that this would have been the sixth hearing to be vacated. That is a matter that can be taken into account, not as a determinative factor, but as part of the background. I do not sense that the judge fell into the error of giving this undue weight. If the case had to be postponed for the nth time for good reason, then that is just hard luck If, for example, the claimant had been knocked over by a passing number 11 bus as she crossed the Strand to attend the first day of the hearing, no judge would deny the sixth or seventh adjournment.

[47]In paragraph 30 iv the judge correctly pointed out that according to the evidence of Dr Sampson, the claimant’s condition had been affecting her for the previous fortnight and she would, therefore, have been suffering at the time she made her application to Eady J. on the previous Thursday. She could have supported her application on medical grounds but failed to do so. Burton J. was fully entitled to conclude that the severity of her condition was undermined by the very absence of mention of it before Eady J.

[48]The judge was also fully entitled to have regard in 30 iv to the substantial inconvenience caused by an adjournment, quite apart from the very heavy cost involved. Prejudice to the defendants had been compounded by their continuing obligation to pay her salary reliant only on a cross-undertaking in damages to recover any overpayment.

[49]Mr Epstein implicitly acknowledged the weight of the factors that go in favour of the defendants and he sensibly concentrated his attack on paragraph 30 vii and viii. He submitted that the three reasons given by the judge, namely(i) the absence of mention of any problem before Eady J.,

(ii) the brevity of Dr Sampson’s letter and

(iii) the absence of exposition as to what happened after November and December 2004, do not justify the conclusion “that there is no sufficient case that there is anything in the claimant’s medical condition which has now rendered it impossible for her to proceed with her case.” I can understand the force of this argument. Dr Sampson’s views had been accepted in the past, indeed the challenge of them may have led to the defendants’ having to pay the costs of an earlier adjournment. We now know, though Burton J. may not have appreciated it, that the genuineness of the claimant’s suffering in 2004 was fully borne out by, if not exemplified by, the further report obtained by the defendants from Dr Thillainayagam. Why, Mr Epstein asks rhetorically, was Dr Sampson’s report not good enough on this occasion?

[50]There are, in my judgment, several answers to that. First no judge is bound to accept any evidence, even from an expert, without testing it against other known facts. The defendants’ counsel had made plain in their skeleton argument that they did not question the genuineness of the claimant’s suffering, only its sufficiency to justify the further adjournment in all the circumstances. All Dr Sampson reported was that the claimant had been up in the night with vomiting and nausea. That had not disabled her when making her earlier application to Eady J. and the judge was entitled to be sceptical. Secondly all the doctors had recommended an endoscopy because it would have indicated just how serious this condition was. The result of that endoscopy was highly material as Dr Sampson should have appreciated and as his patient, herself a doctor, should have appreciated. Yet the court was left in the dark.

[51]As explained at [33] above, the claimant put in our papers a copy of Dr Kane’s report given some three weeks after the hearing. Even that does not throw much light on the matter. He reveals only that a “gastroscopy in 2004 at Queen Mary’s Hospital Roehampton” [Dr Tibbs’s hospital] “showed erosive gastritis, and a quiescent duodenal ulcer.” He added:

“Her symptoms of pain and vomiting flared up some six weeks back in relation to the stress of her forthcoming litigation and court case. Although she has improved somewhat on omeprazole 20mg bd, she continues to get some pain. ”

Mr Gilroy points out that this puts the onset of this attack back to about 4 February, in plenty of time to have marshalled her medical evidence and placed it before Eady J. It adds to, rather than allays, scepticism, especially since Eady J. had heaped doubt on her veracity given the tampering with the emails from counsel’s clerks.

[52]In my judgment the judge was entitled to draw an adverse conclusion and hold that no sufficient case had been demonstrated. As Peter Gibson L.J. held in Teinaz v London Borough of Wandsworth at paragraph 21:

“… the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.”

[53]Because the burden of proof was on the claimant to demonstrate the seriousness of her illness and her inability to attend the hearing and to discharge the burden of presenting her case to the court, it was incumbent upon her to respond properly to the legitimate requests for further information being made by the defendants through their counsel in their skeleton argument. Some constructive response was called for. The response the court received unequivocally and defiantly refused co-operation. The defendants’ counsel had in the proper exercise of their duties drawn the judge’s attention to Teinaz and Andreou, the latter case being an example of one where the Employment Tribunal had gone to elaborate lengths to allow short adjournments to clarify the applicant’s medical condition. The judge was clearly mindful of the need to grant a short adjournment to give the claimant a fair opportunity to demonstrate the extent of her illness. He was plainly alive to the consequence of refusing her application for an adjournment, being the dismissal of her claim. To have dismissed her application there and then may well have been disproportionate. He granted her a short indulgence. He was clearly willing to consider, and to consider sympathetically, whatever material she placed before the court. Faced with her intransigence he was entitled, in my judgment, to conclude as he did that enough was enough.

[54]Although I would grant permission to appeal, I would nonetheless dismiss this appeal.

[55]I agree with both judgments.

[56]I agree that this appeal should be dismissed for the reasons given by my Lord, Ward LJ, with which I entirely agree. I have, however, found this a worrying case and so I would like to express my essential reasons in a few paragraphs of my own.

[57]I consider the case first on the basis of the facts as known to Burton J – i.e. without regard to the report of Dr Thillainayagam dated 3 December 2004 of which the judge was unaware.

[58]On Monday 24 February 2006, the first day of the trial, the judge was faced with a letter from the claimant’s GP which included his professional opinion that “I believe she is medically unfit to attend court at present…” and suggested a postponement of four weeks “to allow for her recovery.” My anxiety derives from the fact that within two days of seeing that letter, the terms of which are clear, the judge had dismissed for all time the claimant’s substantial claim and also made an order for very considerable costs against her. At first sight, that outcome appears unjust.

[59]Faced with the doctor’s letter (of which the genuineness was not challenged), the judge was bound to grant some period of adjournment. The claimant was acting in person; and if a person is indeed ill and unfit to attend court, then he is ill no matter how many times the case has previously been adjourned. I agree with my Lord’s analogy of the claimant being knocked over by a bus on her way to court. The judge did grant an adjournment until the next day.

[60]The case had been listed with a time estimate of several weeks. On the face of it, therefore, there was ample time available in which more fully to investigate the true state of the claimant’s health and the prognosis and timetable for recovery. Was it sufficient and was it fair only to adjourn overnight? In my view, in the first instance it was. The e-mail from the judge’s clerk, which my Lord has recorded at para [26] above, clearly contemplated the possibility of a further period of adjournment. The skeleton argument of Mr Hand and Mr Gilroy clearly “proffered the suggestion” of a further, relatively short, adjournment for a further examination of the claimant. It seems virtually certain that if the claimant had responded at all constructively or positively to that suggestion, then a further adjournment would indeed have been granted and arrangements made for such an examination, seeking answers to the questions suggested by Mr Hand and Mr Gilroy.

[61]This suggestion was clearly seen, understood and considered by the claimant. Her own e-mail to the court sent at 01.16 on 28 February expressly refers to it and states her reaction to it in the uncompromising language which my Lord has quoted at para [27]. She effectively rejected the proffered way forward. I have anxiously considered whether or not the judge ought, nevertheless, to have made an order appointing a suitable expert to examine the claimant and report within, say, 7 or 10 days; leaving a final onus clearly on the claimant to decide whether to undergo such an examination or not. I feel myself that that might have been the preferable course. But the judge was certainly entitled to conclude that the claimant’s attitude in her e-mail “…would render the adoption of the Andreou route impossible or at best problematic.”

[62]The judge was not only entitled but bound to take into account that there had been no mention at all of any medical problem when the claimant had applied for another adjournment before Eady J the previous Thursday, and yet Dr Sampson’s letter clearly referred to “…a flare up in her symptoms of abdominal pain for the past two weeks…” Even as she left the court room on the Thursday, the claimant had intimated that she would apply again for an adjournment; and she sent an e-mail to that effect later the same evening, which my Lord has quoted at para [21] above. Still there was no mention at all of ill health.

[63]In all the circumstances the judge was entitled, in my view, to conclude that this was a contrived and desperate last minute attempt to obtain an adjournment when all other arguments had failed; and indeed that enough was enough.

[64]The judge fully and correctly directed himself as to the law, as described in the authorities of this court of Teinaz and Andreou. He fully considered all the relevant factors. His decision was robust and other judges might well have granted at least some further period of adjournment to give the claimant an opportunity to undergo further medical examination. But the judge exercised his discretion in a way that was open to him and cannot be said to have been plainly wrong.

[65]I turn briefly to consider whether the appeal should nevertheless be allowed on the ground that the report of Dr Thillainayagam had not been shown to the judge. I agree with the careful analysis and conclusion of my Lord in paras [36] to [40] above that Mr Hand and Mr Gilroy were not in breach of any duty in not disclosing the report to the judge. But in any event the claimant had ample opportunity herself to draw it to his attention in her overnight e-mail, and she did not do so. Even if the judge had known about it, I cannot see that it would have made any difference. It was not in dispute that she had previously suffered abdominal illness. The fact that she had previously agreed to be examined by the defendants’ expert merely puts in sharp relief her refusal to do so again.

[66]Thus even in the light of all the facts as they are now known to us, I agree that the appeal should be dismissed.