Scott v Lotus Cars Ltd [1999] UKEAT 1235_98_2701
[1]The proceedings are stayed pending receipt by the Tribunal of a medical certificate from the applicant that the applicant is willing and is able to conduct the proceedings and to comply with the Industrial Tribunal orders made within the proceedings and as additional evidence of which he shall have:-(i) disclosed to the respondents all medical records (including giving written consent for the disclosure of the medical records maintained by the respondents Occupational Health Department) and reports concerning his condition.(ii) attended the respondents nominal medical expert for examination.(iii) all in accordance with the consent he had already given in this regard before the Industrial Tribunal in Glasgow.[2]The case will be reviewed by this Tribunal in six months.[3]There shall be liberty to apply to restore the case for hearing or for further directions, by either party at any time on notice.[4]The question of costs is in the mind of the Tribunal but any decision in this regard is reserved.[5]The case is reserved to the Tribunal constituted for this Directions Hearing." We have been assisted, considerably, on the hearing of this appeal by Counsel and by his instructing solicitors. The position that has been taken by Mr Scott is that he simply is not fit to travel to go and see the consultant; that he is prepared to consent as he has done to medical records being disclosed; and that is was unfair of the Employment Tribunal to have required him to disclose medical records to the respondents' solicitors or to require him to attend the nominated medical expert, bearing in mind that the expert was located in London or East Anglia. We have not found this an easy matter to adjudicate upon. It is clear that the Employment Tribunal was attempting to achieve some finality to the litigation which was started as long ago as December 1997. We support them in that endeavour. It does seem to us, on the other hand, that at this time it is not necessary that the medical records should be disclosed to the respondents themselves other than the records in the respondents' own Occupational Health Department. In relation to the latter such records, that is medical records maintained by the respondents' Occupational Health Department, I order that the appellant give his written consent for the disclosure of those records to the respondents' solicitors within 14 days of today. I make that order and I further direct that the proceedings be stayed pending that step, that is the written consent, and pending the appellant attending a medical examination by the respondents' nominated expert at a date, time and place in or near Glasgow fixed by the respondents with prior notification to the appellant. The reason why I make the second order is to accommodate the appellant's problems in travelling. It is essential that he properly co-operates with the respondents' reasonable requests in relation to medical examination. I should make it plain that so far as the Employment Appeal Tribunal is concerned it will be likely to treat as a correct application of a discretion any decision by the Employment Tribunal to strike out the Originating Application were the appellant not to comply with either of these orders. Had the Employment Appeal Tribunal been giving directions in relation to an appeal, it would have made the orders on an 'unless' basis, thus making it plain to Mr Scott that the time has come for him fully to co-operate with the progress of the case if he wishes to pursue it . If he does not wish to pursue it, then he should withdraw it. It seems to me not an option open to him to delay these proceedings unnecessarily, as he appears to have being doing in the past. I grant liberty to apply to the Employment Tribunal for further directions by either party at any time on notice. I substitute these directions in place of the directions which were made on 21st August 1998. The purpose behind these new directions is to ensure that there can be no room for argument as to the way Mr Scott must conduct himself in future in this litigation if he is to be allowed to pursue it. It would be sensible if the appointed expert could seek to agree a medical report with the appellant's own general practitioner or psychiatrist, as the case might, so that there will be no need at the hearing for there to be any expert evidence. If it becomes necessary to consider medical evidence at the hearing, the Employment Tribunal may wish to consider whether it would be appropriate for such evidence to be received on affidavit, so as to avoid the expense of a witness having to travel from Glasgow. If the appellant is not able to travel to the Employment Tribunal to pursue his complaint, because he still remains unfit to do so, then it would be quite open to the Employment Tribunal to determine this case on the basis of written representations and written evidence, since it would appear to me that Mr Scott is quite capable of making written submissions and of giving written evidence. In conclusion, therefore, the purpose of these directions is to ensure that this case now comes to trial in a speedy and orderly manner having regard to the three interests to which I referred at the outset of this judgment.