MR M S KNIGHT v LONDON BOROUGH OF HARROW [2003] UKEAT 0349_03_2910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0349_03_2910

Case No Appeal No. EAT/0349/03/DA EAT/0356/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR M S KNIGHTAPPELLANT

LONDON BOROUGH OF HARROWRESPONDENT

Before

Mr Justice Burton

Date 29 October 2003

[1]APPEARANCES For the Appellant MR M S KNIGHT THE APPELLANT IN PERSON For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE BURTON (PRESIDENT) : This is the hearing of an appeal by the Appellant against the order made by Mr Mahoney, sitting as Chairman in the Employment Tribunal at London (North West Region), by which he struck out three consolidated Originating Applications brought by the Applicant, Mr Knight, against his former employer at the London Borough of Harrow.

[2]The appeal, in the event, to the credit of the Respondent Council, has not been opposed, but, nevertheless, as this has been an order made by the Tribunal Chairman, the fact that the Respondent does not oppose the appeal does not mean that we must automatically allow the appeal and, consequently, we have considered the matter, just as we would have done had there been opposition by the Respondent, and we are entirely clear that this appeal must be allowed.

[3]The brief circumstances of this unfortunate case (I say unfortunate by reference only to the procedure which is before us, and no reference is intended whatever to the merits of the case, as to which we know nothing) begins, most recently, with an application for an adjournment by the Appellant, Mr Knight, of a hearing fixed for 19 December, which was intended to deal with interlocutory matters in relation to the trial of these applications, including Orders for the disclosure of the Appellant's medical records.

[4]The Respondent, again to their credit, wrote to the Tribunal a letter dated 12 December 2002 confirming that it would have no objection to any application made by the Appellant for the postponement of the hearing set for 19 December, to a date early in the New Year. This was an application for an adjournment which Mr Knight had put forward on the basis of his then ill-health which, as was then clear, was not challenged by the Respondent. Notwithstanding that application and that lack of objection by the Respondent, the Tribunal went ahead with the hearing on 19 December. The Appellant says that he endeavoured to find out from the Tribunal whether the case was going ahead, notwithstanding his application for an adjournment, and was unable to find out, but that perhaps does not matter significantly, the important point is that it did go ahead in his absence, and he was informed by an order dated 8 January as to the outcome of that hearing in his absence and that Order read, in material part, as follows, made by Mr Mahoney sitting alone:

"Upon hearing the representative on behalf of the Respondent it is ordered that [and then various directions were made in relation to the vacation of the hearing then fixed for 1 March, and by paragraph 2] : 2. On or before 10 January 2003 the Applicant is to instruct his G.P. that copies of all his medical records are to be provided to: (1) Professor Robert J. Edelman [who was the medical expert instructed by the Respondent]. (2) The Respondent's legal advisers, namely [and it names solicitors and counsel]. It is the responsibility of the Applicant to ensure that all copies of such medical records are with those individuals by 10 January 2003. The Respondent's named legal advisers are not to disclose the contents of those reports to any other individual without an express order to that effect from this Tribunal."

And then, by paragraph 3:

"3. The Applicant is required to consent to the medical report or reports of Professor Edelman to be disclosed to the Respondent's legal advisers named in paragraph 2 above."

[5]It is apparent from the dates which we have already mentioned that that was, no doubt by oversight, a somewhat extraordinary Order because, although made on 19 December at the hearing at which the Appellant was absent, it was not promulgated until 8 January and it required compliance by 10 January. It appears, reading between the lines, that the Appellant was not, at any stage, hostile to the production of his medical records to Professor Edelman, but it was to Mr Peart, being an in-house lawyer, as he saw it, that he was unhappy that his record should be disclosed; but nevertheless there was an Order, albeit made in his absence, as we have indicated. He made, by handwritten application of 10 January 2002, an application under paragraph 4(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 which reads as follows:

"Where a requirement has been imposed under paragraph (1) or paragraph (5) [and that includes a requirement for inspection] (a) on a party in his absence; . .. that party or person may apply to the tribunal by notice to the Secretary to vary or set aside the requirement. Such notice shall be given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with and the Secretary shall give notice of the application to each party, or where applicable, each party other than the party making the application."

[6]As we have indicated, the document was handwritten and, although dated 10 January, plainly the Applicant did his best to make sure he complied with the terms of the rule, because he must have given it in by hand, because the stamp says that it was received on 10 January, which, of course, is before the date for compliance with the Order which he had just received.

[7]The response by the Employment Tribunal, signed by a Mr Barry on behalf of the Regional Secretary, was not sent until 16 January and it read as follows:

"Thank you for your letter dated 10 January 2003, [of course, it was a letter but it also contained an application to set aside the order under rule 4(7)] the contents of which have been noted by a Chairman (Mr Mahoney) [who was, of course, the Chairman who made the order of 8 January] who has directed as follows: (1) An Interlocutory Order cannot be reviewed by the Tribunal (2) However, the time for compliance with paragraphs 2 and 3 is extended to 24 January 2003 (3) The Tribunal re-emphasizes the very strong possibility that the Applicant will be struck out if he fails to comply with the Tribunal's Order."

[8]The statement that an interlocutory order cannot be reviewed by the Tribunal is, of course, correct, but what it does not do is take account of the fact that this was not an application for a review, but an application (and a perfectly proper one) to set aside the Order that had been made in his absence. The time, as can be seen, was nevertheless extended until 24 January 2003.

[9]Mr Knight asserts (and asserted) that he complied with the time limit of 24 January 2003, notwithstanding his resentment in respect of at least part of it, and he made a further application to set aside the Order of 8 January, by a formal document dated 21 January 2003, in which he said as follows:

"I have fully disclosed all of my medical records to the Respondent's expert witness. I have no objections to my doctor duplicating those records to the Respondent's expert. I do however, strongly object to my medical records being disclosed to Mr H Peart who is a party to the proceedings against whom I have made specific allegations. Mr H Peart is one of the number of persons who are collectively; the Respondent. My medical records contain matters which are private and irrelevant to these proceedings and I should not be forced to give them to the Respondent who I believe will use them to my detriment."

[10]As we have indicated, we have no sufficient knowledge of the proceedings, or its merits, to begin to express an opinion as to whether it was in fact relevant, with regard to the medical records of the Applicant in relation to his claim that he suffered distress or humiliation as a result of the conduct of the Respondents, for him to disclose all his records going back to his infancy, but that is nevertheless what was ordered by the Tribunal, rightly or wrongly.

[11]That application to set aside, coupled, as we have indicated, with an assertion that he had complied with the Order, was considered by the Tribunal on 28 January. Comments have been given, as a result of an order made by this Tribunal on the preliminary hearing, by Mrs Tribe, the Regional Chairman, on behalf of the Chairman, Mr Mahoney, on the Appellant's Notice of Appeal, and in those comments the following statement is made, at paragraph 11:

"By an application received on 22 January, the appellant made application for a hearing to set aside certain parts of the Order previously made. He did so pursuant to Rule 4(7) of the Procedure Regulations. This application was referred to a Chairman (Mr Mahoney) who gave directions on 27 January [we shall refer in a moment to the directions which were, in fact, made on the 28 th , or at any rate, promulgated then] having also had referred to him a letter from the respondent faxed to the tribunal on the same day complaining that the appellant had failed to comply with the Order made and asking the Tribunal to strike out the case."

[12]Mr Knight has not seen a copy of any such fax, presumably dated 27 January, and it is not in the bundle before us, nor is it referred to in the order to which we shall refer now, dated 28 January 2003. If there was such a letter, it would have needed to have particularised the nature of the failure. We have seen a letter dated 13 January 2003 sent to the Applicant by Professor Edelman and this, of course, is some fortnight before, in which he said, addressed to Mr Knight himself, while thanking him for all that he had received, as follows:

"The impression I gained from my perusal of the GP notes is that I do not appear to have seen a continuous record. There would seem to be a gap in the records between February 1992 and December 1994, although you may simply not have attended your GP during this time. Also, although they may well not be of any significance, I do not have copies of your records from 22.4.55 [50 years ago] to 2.6.65. I also gained the impression from your notes that, as one might expect, you have been referred to specialists from time to time. It would seem that I have not seen the complete record of correspondence from your GP to such specialists and visa versa."

[13]If there was at that stage a non-compliance, it was plainly not a complete non-compliance by any means, and, as we have indicated, the assertion by the Applicant in his application of 21 January was that he had fully disclosed all of his medical records to the Respondent's expert witness, and had no objections to his doctor duplicating any further records to the Respondent's expert.

[14]But, quite apart from speculation as to what the fax of 27 January might have said, what is plainly unacceptable is that such fax letter was acted upon by the Chairman, Mr Mahoney, if that was the case, without giving the opportunity of the Appellant to comment upon it, either then, or indeed at any time subsequently, prior to the subsequent making of the order, to which we shall refer, for striking out, against which this appeal now comes forward.

[15]Two letters of 28 January 2003 from the Tribunal were then despatched to the Appellant in the light both of his own application of 21 January and this undisclosed fax letter of 27 January, if such was in fact considered. The first letter said, as follows:

"Thank you for your letter dated 21 January 2003, the contents of which have been noted by a Chairman (Mr Mahoney) who has directed the following: Application to set aside the Interlocutory Order promulgated on 8 th January 2003 is refused. The Applicant was well aware of the hearing date and could have arranged representation. The Tribunal considers the application to set-aside to be an attempt to disrupt the just and proper disposal of this case."

A second and separate letter with a similar date was sent, which read as follows:

"I have been directed by a Chairman (Mr Mahoney) to write to you because you have failed to comply with the Tribunal's Order promulgated on 8 January 2003. ... "

This was presumably a finding of fact, notwithstanding what the Applicant had said in his application of 21 January and in the light, presumably, of something said in the fax of 27 January 2003 which we have not seen, nor has the Applicant. The letter continued:

"Under the Tribunal's Rules of Procedure Regulations the Chairman may order the striking out of any Originating Application on this ground. Before doing so, you are entitled to make representations in writing as to why the Chairman should not exercise this power. If you wish to make such representations you should write to the Regional Secretary of the Employment Tribunals at this address by no later than 12 February 2003."

[16]It is thus clear that the Appellant was being given until 12 February to make representations, and thus that no order striking out would be made before that date.

[17]The Appellant wrote a letter on the very next day, on 29 January, not to the Regional Secretary by way of representations, as invited in the last paragraph of the letter of 28 January, but by way of what he has described as a request for clarification, direct to Mr Mahoney. As we have indicated, it was an immediate response, and he said as follows:

"I have received notice dated 28 January 2003 of your intention to strike out on the ground that I failed to comply with the Tribunal's order promulgated on 8 January 2003. I am very concerned by this notice as I did in fact fully comply with clauses 2(1), (2) and (3) of the order within the time limit. For the benefit of doubt, I gave my consent to Professor Edelman to disclose his medical reports to the Respondent's advisors on 10 January 2003. By this letter I confirm that consent to the Tribunal and the Respondent. The earliest appointment I could arrange with my doctor was 15 January 2003 hence my request for an extension of time which you kindly granted being 24 January 2003. At our meeting on 15 January I instructed Dr Sheridan to fully comply with the order. I enclose the responses from both Professor Edelman and Dr Sheridan. I am not sure what additional proof I can provide to demonstrate that I have complied with the order. Please advise me accordingly."

The two enclosures with that letter were the letter by Professor Edelman of 13 January 2003, which we have already quoted, and a letter from Dr Sheridan dated 22 January, which we now quote:

"Dear Mr Knight Concerning our consultation on the 15 th January 2003 regarding the Employment Tribunal. I am more than willing to release any of the records that appertain to your psychological/psychiatric problems but I will NOT release any other features of your medical records that do NOT appertain to the problem that you were off work for. It is my opinion that these are not relevant to the matter under consideration by the tribunal and therefore I intend to preserve the patient / Doctor relationship and confidentiality."

[18]A letter dated 3 February was sent by the Tribunal to the Respondent, which read as follows:

"A Chairman of the Tribunals (Mr Mahoney) ... directed as follows: The Tribunal Directs that any application for costs by the Respondent must be presented in writing to the Tribunal on or before 14 February 2003."

That, presumably of the Chairman's own motion so far as one can see, was intended to be an encouragement to the Respondent to seek costs, if and in the event that the Applicant's case were struck out on 12 February, as had been indicated in the letter of 28 January by implication that it might be, if representations were not received by 12 February. There was, however, no response to the Applicant's request for clarification dated of 29 January, to which we have referred.

[19]The next step that was taken was the decision by Mr Mahoney to strike out the applications against which this appeal is now brought, dated not 12 February but 5 February. That is a further indication of something somewhat extraordinary, namely that the Tribunal acted to strike out the application seven days before the deadline that had been previously set by the Tribunal. The explanation appears to be, reading between the lines of Mrs Tribe's letter by way of comment on the Notice of Appeal, that Mr Mahoney may have thought that the letter seeking clarification of 29 January amounted to the submissions that he was permitted to give, prior to 12 February, and consequently, brought forward the date of consideration by a week.

[20]That is clearly not what the Appellant thought because, as we shall describe, he did indeed, in fact, send the submissions which he had thought had to be sent by 12 February, on 10 February, and he had had no response to his letter of clarification dated 29 January, nor was there any attempt by the Tribunal, even to acknowledge that letter, but certainly to clarify whether that letter did indeed amount to the representations which had been requested before 12 February.

[21]The Order of 5 February striking out the applications simply, at that stage, recited the Order of 8 January and the warning of 28 January, which was recorded as follows:

"The Applicant was warned that unless written reasons be given within 14 days as to why an Order should not be made a Chairman would consider striking out the Originating Applications for non-compliance with the Order" which itself is plainly a summary of how the Tribunal understood that letter of 28 January, namely that there was, in effect, a 14-day Order, meaning that one would have expected even the Tribunal to have concluded that no Order could be made prior to the expiry of the period of the 14 days; and then the conclusion is set out in paragraph numbered 3, but in fact number 5 of the Order, as follows: "

In deliberate defiance of the Tribunal's Order the Applicant has refused to instruct Dr Paul Sheridan, the Applicant's G.P. to provide all the Applicant's medical records to Professor Edelman. I therefore order that all 3 Originating Application s be struck out." The response to that Order by the Applicant was in a letter sent to the Employment Tribunal, which reads as follows, addressed to a Mr Adamson:

"I beg your assistance. I refer to the attached direction. I have until 12 February 2003 to make representations to Mrs Tribe, the Regional Secretary [she, of course, was not the Regional Secretary, but that was a misunderstanding by the Appellant]. I have been informed this morning that Mr Mahoney has already struck out all of my cases lodged with the Tribunal and made a costs order against me. This action can neither just nor fair. I have complied fully with the Order he states that I have not. He states that my note to him dated 29 January 2003 was the representation requested. It was not . I know he is not the Regional Secretary. [This is a reference to the fact that it was to the Regional Secretary he was supposed to make his representations]. The note was for his information only. My representations to the Regional Secretary ... are currently being typed. Please do not let him strike out all of my cases until I have had the chance to make a proper representation."

[22]The representations which he then lodged on 10 February, in time according to the Order of 28 January, but in practice too late because the Order had already been made, set out the matter in full, so far as he was concerned. It includes the fact that, on 10 January he had informed Professor Edelman that he consented to the medical report or reports of Professor Edelman being disclosed to the Respondent's legal advisers and that he had previously forwarded to the Professor all the medical records he had obtained from his GP at his request. In paragraph 7 he said that he had forwarded Professor Edelman's letter of 13 January to his GP, who later confirmed to him that the further records required were not in his possession, and he said he was unsure how to provide these records at such short notice, as he was resident in Wales between 1955, his birth, and 1960, when he was five years of age, and he was unsure of the location of the other records up to 1965. In paragraph 13 he referred to the fact that he attended his GP on 15 January and explained the situation and provided his GP with a copy of the

[23]Again, it appears to us somewhat extraordinary that he should treat as an application for review submissions which were plainly those put in time, in accordance with his original Order, and intended to be considered by the Tribunal prior to the making of any Order. His decision on the application for review was promulgated on 7 March 2003, and he set out the Order of 8 January (as amended by the letter of 16 January) providing that the Applicant was ordered on or before 24 January to instruct his GP that copies of orders of all his medical reports were to be provided to Professor Edelman and the legal advisers. Paragraph 4 contains the nub of Mr Mahoney's conclusion and it reads as follows:

"The Applicant deliberately defied that order. That is confirmed by a letter dated 22 January 2003 addressed to the Applicant from his GP, Dr Paul Sheridan [and then he quotes the letter including the capital letters]. "

Then in paragraph 5:

"It is clear to the Tribunal that that letter could only have been written by Dr Sheridan on the clear instructions of the Applicant."

And he refers to the letter to the Tribunal dated 29 January, which he concluded was clearly a response to the strike out warning and then he said:

"Having considered the further correspondence received by the Tribunal on or before 12 February 2003 (when the strike out warning expired) [Again, it is an extraordinary acceptance by the Tribunal that the strike out warning expired seven days after the Order was made] the Tribunal is quite satisfied that there were no further letters put forward by the Applicant which justifies his failure to comply with the Tribunal's Order [and the conclusion is] : The Tribunal is quite satisfied that this was a deliberate defiance of the Tribunal's Order in an attempt to disrupt the judicial process in these cases and the Order for Strike Out was fully justified."

[24]Had the Review accepted that the Order was not justified because it was premature, but, having considered the matter, now repeated it, at least the procedural aspects would have been satisfied, but, in any event, we have to consider the substance of the Review Order and, for the purposes of this appeal, treat it in essence, together with the original Order, as setting out the reasons for the strike out, although the premature making of the strike out would be justification sufficient to allow an appeal against its making.

[25]We find it very difficult to see how it could possibly be right for the Chairman to have concluded in this case that there had been non-compliance, not to speak of "deliberate defiance of the Order", in the circumstances to which we have referred. It is, of course, possible that the continued assertions of the Appellant, corroborated to substantial extent by Professor Edelman's own letter and by the admitted existence of his interview with the GP, could have been found to be untrue, but not, we rather suspect, without an oral hearing to that effect. But what we find even more difficult is how it could be concluded, again without an oral hearing, that the letter from the GP, which was not suggested to have been forged or fabricated, should be read in the way that it was, without more. Of course it is possible that on a cross-examination of the Applicant, and probably of Dr Sheridan also, it might have been possible to conclude that this doctor was concocting a letter, on the instructions of his patient, intended to defy the Court. But, on the face of it, this is a letter from the GP of his own accord, giving, rightly or wrongly, and probably misguidedly, his own view, although his own view might well be factually correct, unless it be the case that medical records up to the age of 10 can really be said to be relevant to the matters before the Tribunal, in respect of a man some 40 years older. But there was an Order, and the Order fell to be complied with by the Applicant, and, of course, if he had coerced or persuaded his doctor to assist in defiance of the Order, that would amount to non-compliance by the Appellant; but if, notwithstanding his instruction, which he said he had given, and confirmed in his written statement that he had given, to the GP, the GP refused to comply with that instruction, that could not possibly be said to be a failure by the Applicant himself, not to speak of a deliberate defiance.

[26]In those circumstances we are entirely satisfied that, not only procedurally but also substantively, this decision by the Tribunal to make a strike out Order, and then not to review it, was wholly unfounded and unjustified and unfair; but there is another matter that must be stated.

[27]In a starred judgment of this Tribunal, not yet reported but it is hoped soon to be so, Bolch v Chipman of 19 May 2003, on very different facts from this case, and relating to a decision by a Tribunal that there had been behaviour by a litigant such as to justify a debarring Order, it was emphasised, not for the first time, but also we hope made clear, that the penalty to be imposed where there has been misbehaviour or, as in this case, default, if such there was by a litigant, does not and should not lead automatically to a strike out; and the questions which are common to the Bolch case and this, which require to be asked, where there has been a default case, just as they require to be asked as additional questions where there has been an alleged misconduct case, include:(1) Is a fair trial still possible? That, of course, has been well established since the decision of Lindsay P in De Keyser Ltd v Wilson

[2001] IRLR 324

. That may not be a relevant factor, if there has been deliberate defiance, we quite understand that, and that may be what was in the mind of Mr Mahoney when he made this Order, if in fact there had been any justification for his conclusion that there was deliberate defiance. But there still remains the further question, namely:

(2) Was the penalty to be imposed a proportionate one? Proportionality must always be considered by the Tribunal. A possible Order, even if there was deliberate defiance in this case, would have been something short of a strike out Order, such as, for example, an Order that the Appellant would not be entitled to rely on medical evidence, or possibly even not able to pursue a case for compensation for this head of loss.

[28]All these matters must be considered by a Tribunal making such an important Order, with such prejudicial effect on the party in default before making an Order of this kind. This is not intended to dissuade Tribunals from insisting on compliance with Orders; it is not intended to lay down any kind of requirement that in every case there must be an oral hearing. Quite plainly if warnings are given, in an appropriate case, provided there are considerations of alternative penalties of proportionality and fairness of a trial, an Order like this can be made on paper.

[29]But in this case, where it involved not only disbelieving the Appellant, but also a serious allegation against the good faith of a third party, namely the GP, in our judgment this Order could never have been made on paper, but if it was to be made in this way it should not have been made without overt consideration of the factors to which we have referred.

[30]In those circumstances we have no hesitation whatever in allowing this appeal and we indicate, with approval, the proper behaviour by the Respondent in this case which has not opposed the appeal. It is therefore our decision that the appeal must be allowed.

[31]We understand that the case is now listed for hearing in the near future and that obviously is in everyone's interest. We do not consider it appropriate that the hearing be, even if otherwise intended so to be, before any Chairman who has previously dealt with the case, including, for the avoidance of doubt, Mr Mahoney or Mrs Tribe.

Order

the Applicant's GP promised to comply with the Order by 24 January 2003: the Applicant's GP confirmed this meeting in his letter dated 22 January (which is a reference to the letter from the GP with the capital letters in it, to which we have already referred). He continued: "Subsequently [that is subsequently to the GP's letter] the Applicant had instructed his GP to make the Applicant's medical records fully public to whoever requires them if the alternative should be that any of the Applicant's Originating Applications be struck out. It is the Applicant's intention as a result of these recent proceedings, that his medical records in full, be submitted in evidence and included in the bundle in order to demonstrate the Applicant's willingness to comply fully to any request made." This was accompanied by a short confirmatory statement that he had complied fully with the Order of 19 December, in fact dated 8 January, within the time limit specified, being 24 January 2003, which was the extended period. The letter from Mrs Tribe to this Tribunal said as follows, in paragraph 16: "On 10 February the appellant presented representations why his Originating Application should not be struck out. The envelope (there is no covering letter) was addressed to me wrongly describing me as the Regional Secretary. These representations were never referred to me. They were referred to Mr Mahoney at the same time as the letter of 5 February addressed to Mr Adamson. Mr Mahoney treated the letters jointly as an application for review of the decision to strike out the Originating Applications and promulgated a decision refusing the application for review."