MRS P CHAMBERS-MILLS v ALLIED BAKERIES [2008] UKEAT 0165_08_1811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0165_08_1811Case No Appeal No. UKEAT/0165/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P CHAMBERS-MILLSAPPELLANTALLIED BAKERIESRESPONDENT
Before
Mr Justice Burton Mrs A Gallico Mr H SinghDate 18 November 2008
[1]APPEARANCES For the Appellant MR JOHN MEREDITH-HARDY (of Counsel) Instructed by: Messrs Duncan Lewis & Co Solicitors 1 Kingsland High Street Dalston London E8 2JS For the Respondent MR DANIEL TATTON-BROWN (of Counsel) Instructed by: Messrs Harvey Ingram LLP Solicitors 20 New Walk Leicester LE1 6TX SUMMARY PRACTICE AND PROCEDURE: Striking-out/dismissal The Appellant appealed a strike out order, but the correct authority ( Blockbuster ) was applied and there was(i) no perversity in the ET's findings of fact, nor any other challengeable basis in law(ii) no vitiated discretion in refusing an adjournment in the light of those findings. THE HONOURABLE MR JUSTICE BURTON We refer at the outset of this judgment to the judgment given earlier today on the Appeal against the Registrar's Order ("the ARO judgment") in relation to the proposed re-amendment of the appeal and incorporate the facts of that judgment and the matters there mentioned into this judgment.[2]This has been the appeal against the decision of the Employment Tribunal at Stratford there referred to, which at a Case Management Hearing, at which prior notice of the various applications had been invited and given, the Respondent's application to strike-out the Claimant's complaint of discrimination contrary to the Disability Discrimination Act 1995 ..." the DDA ") was successful. The Tribunal struck out the complaint on the basis that the Claimant's conduct at the proceedings had been unreasonable, and because she had failed to comply with Orders of the Tribunal. Those Orders were recited in the ARO judgment and we shall not repeat them.[3]There is no doubt that the Tribunal was referred to the relevant authority on the issue of striking-out. The most recent and leading case is Blockbuster Entertainment Ltd v James [2006] IRLR 630 , which itself incorporated references to a number of the earlier leading cases, particularly De Keyser v Wilson [2001] IRLR 324 and Bolch v Chipman [2004] IRLR 140 . Sedley LJ at paragraph 5 of the judgment said as follows:
"This power [that is this power to strike-out], as the employment tribunal reminded itself, is a draconian power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response."
[4]It is quite plain that those two cardinal conditions as Lord Justice Sedley describes them are alternatives; either the one or the other must be established, but in either case the remedy of striking-out must then be proportionate. In fact, in this case, the Employment Tribunal appear to have concluded that both conditions were required to be fulfilled. At paragraph 20 they recited the need to look at the two conditions one by one, and said:
"We first have to consider whether there has been a deliberate and persistent disregard of the Tribunal's orders."
And at paragraph 23 they conclude, having considered those matters:
"It follows that the first part of the test set out by the Court of Appeal in Blockbuster … has been satisfied. However, it is also clear that this is not the end of the matter. We have to decide whether the Claimant's deliberate and persistent failure makes a fair trial impossible."
[5]That places the hurdle, as Mr Meredith-Hardy for the Appellant accepted, on the basis of the authority of Blockbuster , too high, and therefore, if anything, it was favourable to the Appellant that they required the Respondent to go through both hoops. If we find, in the event, that there is no arguable challenge or successful challenge to either of those conditions then we must uphold the claim: a fortiori if the challenge fails to both.[6]So far as proportionality is concerned, it was necessary, whichever of those two conditions were satisfied, that that be considered, and the Tribunal required itself so to consider and did so consider, in particular in paragraphs 25 – 28 of its judgment.[7]In those circumstances, from the Appellant's point of view there can be no complaint about the legal tests adopted by the Tribunal; indeed, as we have indicated, if anything, it is the Respondent, who, had it lost, would have been entitled to complain.[8]What then is the ground in law upon which the Appellant relies in order to challenge the finding? As was described in the earlier judgment, there was an original Notice of Appeal, which included among other things allegations of bias by the Tribunal which were ruled out under Rule 3 by Judge Birtles. That led to an application under Rule 3(10), which resulted in a judgment, to which reference was made, by Langstaff J, in which inter alia the bias allegations were still not permitted, and he let through the Notice of Appeal on the basis that it must be amended on a limited basis; that alone is what this Appellant has permission for and the Appellant did not appeal the decision of Langstaff J.[9]Langstaff J referred to the fact that it was arguable that the Tribunal was, as he described it, " in factual error in certain respects ". It is of course not enough for a Tribunal to be in factual error; far from it, it is required, before this Tribunal can interfere, that there be an error of law. There can in rare circumstances be such a concatenation of errors of fact, or so gigantic a howler, that such error might amount to perversity, but perversity, as has been made clear in so many recent authorities in the Court of Appeal, is a very narrow ground. Langstaff J specifically concludes his judgment by saying " It seems to me there is no merit in the claim of perversity as such ." It is unclear to us what he meant by that. Mr Meredith-Hardy, who has very ably argued the matter on behalf of the Appellant, has suggested that perversity is a broad church, and within perversity there can be failure to take material matters into account or the taking of matters that were immaterial into account, and then there is a residual category of perversity in the sense that no reasonable tribunal could have come to the conclusion it did.[10]We are entirely satisfied that there is no separate categorisation of perversity. Perversity is a general heading simply for a decision to which no reasonable tribunal could have come, and that is usually arrived at by making the kind of gigantic mistake to which we have referred, but perversity it must still be, and the scope for perversity is still very limited. We are entirely satisfied that the only way this could have gone forward, notwithstanding the words of Langstaff J, would be if he was giving permission to argue the case on the basis that it might disclose a perverse decision by the Tribunal.[11]The only other matter upon which Mr Meredith-Hardy has sought to hang the appeal is by reference to his case that if the Tribunal had come to a different conclusion on the facts, or, perhaps, notwithstanding their conclusion on the facts, they ought rather than striking-out to have followed the course of an adjournment; consequently, this strike-out order must be seen as a refusal of an adjournment, and the issue of adjournment is a discretionary matter, such that there was a discretionary failure, a failure to exercise the discretion to grant an adjournment, by the Tribunal.[12]That does not help him greatly, because a decision with which another Tribunal disagrees, particularly one which is so clearly a matter of case management and full appreciation of the facts of the case before them, is not one which can be easily interfered with. But at least he does have the benefit of the decision of the Court of Appeal in Teinaz v London Borough of Wandsworth [2002] IRLR 721 , where the Court of Appeal was upholding a decision of the Employment Appeal Tribunal, which had, as the Court of Appeal concluded, rightly, interfered with the exercise of discretion by a tribunal. That discretion was exercised in refusing an employee's application for an adjournment, and the Court of Appeal emphasised how rare it was that an appellate body could intervene in the exercise of a discretion. Effectively it is only where the exercise of a discretion is, as it was put in that case, vitiated, so exercised that no reasonable tribunal could have reached the decision it did. We shall consider this appeal on the basis that there might be some ground, by reference to perversity or by reference to vitiated discretion, and have allowed Mr Meredith-Hardy to develop a case accordingly.[13]The findings which the Tribunal made were partially findings of fact and partially inferences from the facts found. They found that there had been non-compliance with Orders. They find that there had been non-co-operation with the first doctor, Dr Fagin, who was instructed to become the joint expert so as to have a properly informed examination of the Appellant with medical records which were to be supplied to him, and then non-co-operation with the second agreed expert, who was sought and intended by the Respondent to be instructed, Dr Christie-Brown. Underlying the findings of fact was the inference, but also as will become clear, partly a fact in its own right, as to the underlying reason for the non-co-operation being the rooted refusal by the Appellant to produce her medical records to such doctors so that the case could be analysed and pursued. The need for such Orders, which, of course, as was described in the earlier judgment, were in this case made originally by consent, but then were ever more heavily iterated and reiterated and eventually made into an unless order by the Tribunal, is that, particularly in this case, where there is a breakdown of relationship between the Claimant and the Respondent, it is the only way in which medical evidence about the Claimant's condition can get before the court, so far as the Respondent is concerned.[14]The Claimant herself had a number of medical reports which she put forward, which were, and still are, criticised by the Respondent in certain respects as being unreliable, and there is certainly a heavy challenge to the very existence of the condition upon which the Claimant relies to support her case that she has a condition which qualifies under the DDA. The Respondent is not obliged to accept unchallenged such medical evidence; they are entitled either to call their own expert evidence, which of course it is impossible to do on an informed basis without such expert having carried out an examination, or, as here - less satisfactory perhaps from their point of view, because they have no control over such witness, but certainly better than nothing - to have a joint expert who has been given all the medical records and all the information, and then inspects, examines and considers the position from an entirely impartial point of view. That is what these Orders provided for, and that is what was recommended in De Keyser v Wilson , to which we have referred, and we are satisfied, as was set out in the earlier judgment, is still the law notwithstanding the amendment to the DDA in December 2005, referred to in the ARO judgment.[15]So far as the facts are concerned, the Tribunal came to conclusions about what we called during the course of the hearing the "Fagin debacle", the aborted attempts to have an examination by Dr Fagin, in paragraphs 7 and 8 of its judgment, which had previously been considered by Mr Scannell in the circumstances to which again reference was made in the ARO judgment. Mr Meredith-Hardy, notwithstanding that this is a tribunal which does not reconsider facts, as we stated earlier, but for the purpose of analysing to see whether there was anything which might qualify as a perverse finding of fact, has persuaded us to look in full at all the underlying documents relating to Dr Fagin. It is not for us to substitute a different view from the Tribunal; it is sufficient for us to form a view as to whether the Tribunal's conclusion was one to which no reasonable tribunal could come. The crunch of the evidence came when one appointment had been cancelled and another made for the Appellant to attend Dr Fagin, and he sent an email to the Respondent's solicitors on 22 March 2007 which said as follows:
"I thought I would write to you to let you know the difficulties I have been encountering in making arrangements to see Mrs Chambers-Mills and obtaining her medical records. As you know, I made efforts to get her to be seen as early as possible, and offered my assistance to help her to obtain the medical records, even volunteering to pick them up from her GP's surgery before my appointment with her. Unfortunately Mrs Chambers-Mills was insistent on seeing her records first, and was very dilatory in preparing a letter of consent. As a result I have not been able to peruse her records before I was due to see her today. I had also changed the time of her appointment to suit her, as she said she could not make it by 9 am. This morning I received three phone calls asking for details about how to get to my consulting room, and eventually she informed me that she was cancelling the meeting and asked for another date. Despite the inconvenience this has caused me and the waste of time, I have given her another date for the 2 nd April. … I have not yet had access to her records and I have asked her to send me the consent form so that I can go to Hackney to pick them up."
[16]There was an explanation put forward as to the Appellant suffering from ill health at the time, having had a headache after attending a Case Management Hearing the previous week, but that would not be a sufficient answer to Dr Fagin's account of her three phone calls earlier that morning, none of which had mentioned inability to attend through ill health. Then there is - and this closes the Fagin story, if we can put it that way - a further email of 28 March from Dr Fagin, which said this:
"Following my last communication to you I made arrangements to see Mrs Chambers-Mills on another day after she cancelled her appointment with me at the last moment on the proviso that she send me her consent form by post in time so that I could study her medical records, which I was prepared to collect myself from Hackney prior to my meeting next Tuesday. As I had neither received the letter by post or a communication by phone I rang her today to enquire, only to be told that she had not come round to it this week. Whilst I can understand that there may well be reasons behind this behaviour I cannot justify it nor the waste of time that these delays and postponements have provoked, so I must therefore regretfully decline to offer any further assistance in this matter."
[17]The Appellant points out that, at an earlier stage, she had said she was willing to supply her records, but the Tribunal was entitled to conclude that the proof of the pudding was in the eating and that no records were produced, and that indeed was the reason why the doctor pulled out, coupled with the cancellations to which we have referred.[18]Now against this background of failure first time round, the Tribunal would have been entitled to expect more co-operation, in case it had been, on her own account, not her fault on the first occasion,, once there was the fresh instruction of a doctor, Dr Christie-Brown, who was on a list that she herself had supplied as an expert when she was willing to attend. The conclusions of the Tribunal are in paragraphs 13 to 16 and 22 of its judgment, and we do not repeat them. Once again, we were persuaded by Mr Meredith-Hardy to go on the journey of looking at the underlying documents, in case some smoking gun might be found which could amount to a dramatically erroneous conclusion. So far as that is concerned, there is no doubt, as Mr Tatton-Brown, who appears for the Respondent, on whom we did not call, pointed out in his skeleton argument, that there was an error, or a misdescription of the position, in the Tribunal's judgment at paragraph 15, or something which could be so described, in that the Tribunal said " Despite being offered the appointment with Dr Christie-Brown the Claimant did not attend it. " Mr Meredith-Hardy understandably points out that it is not right to say that she did not attend a still extant appointment, because the appointment had by then been cancelled. The reality is, as Mr Tatton-Brown submitted in his written submissions below and in his skeleton to us, that what the Tribunal were entitled to have concluded, was that it was her fault the appointment did not go ahead, and that it was effectively she who did not attend it, because it was cancelled by Dr Christie-Brown through her fault.[19]The documents, through which we have been taken by Mr Meredith-Hardy, tell a similar story to that which has been found by the Tribunal. Once again there is an assertion by the Claimant that she was willing to produce the records: once again no records were produced. The willingness of Dr Christie-Brown to make appointments was tested to the full, as it was in relation to Dr Fagin. On 6 July the Respondent's solicitors wrote to the Appellant to say that they had left a telephone message for her earlier that day, following her confirmation that she was not available to see Dr Christie-Brown on the two dates which, at very short notice, he had suggested, after a considerable delay since the hearing before Mr Scannell; no adequate explanation, in our judgment, can be said to have been given for the passage of time on the Appellant's behalf, and it was such that one would have then expected a degree of energy in complying with the Order, which was otherwise expiring at the end of July. The dates that had been offered by Dr Christie-Brown were 4 pm on 26 July and on 2 August. The letter continued:
"You have advised that you are only available between 10am and 2pm the week commencing 23 rd July 2007. I have spoken with Dr Christie-Brown and he has managed to arrange an appointment for 11 am on 26 th July 2007. I have asked you to confirm whether you can attend this appointment and would be grateful if you would do so as soon as possible."
[20]The time had indeed been made available by Dr Christie-Brown at some inconvenience, as appears from his email of 6 July, and it was to remain available, if accepted, for a short time. There was no response by the Appellant to accept and confirm her availability at that appointment thus made available to suit her very limited availability in the one week and mornings only; but by an email of 10 July she sent a letter of 9 July, which continued to talk about dates of her unavailability, and disputing that she had failed to comply with the Orders of Mr Scannell. The letter made no reference whatever to her willingness or otherwise to attend at the dates which had been offered by Dr Christie-Brown, which offer was withdrawn because of its not being accepted.[21]We are entirely clear that the Tribunal was entitled to reach the conclusion that there was failure to co-operate by the Appellant and to infer from those failures, which were not simply unreasonable conduct but in breach of Orders, that the reason was a refusal to co-operate in relation to the production of her medical records. At paragraph 14 of the judgment the Tribunal comments, in relation to the Fagin incident:
"This is hardly the attitude of a co-operative Claimant who is seeking to obtain the necessary medical evidence to prove her own case."
And at paragraph 20 it comments that "the Claimant raised unreasonable objections to releasing her medical records. The release of those medical records is a basic requirement for the preparation of a medical report. A psychiatrist would, without doubt, find it necessary to read the past history of the person he was examining, as well as relying on her own account of what has happened to her."[22]In terms, it seems there was express discussion between the Tribunal and the Claimant, who was at that stage unrepresented, as to her attitude and intention in relation to medical records, and the Tribunal, at paragraph 18, records the following in relation to those discussions:
"During our discussions yesterday, when the Claimant was asked what arrangements could be made possibly to resolve the situation, she made clear her reluctance to reveal her medical records. She said that she felt that to be required to reveal them to the Respondent was an invasion of her privacy."
And the Tribunal contrast that with the position in De Keyser , and comment that the most important evidence, apart from the evidence of the Claimant, would be her medical records and a report from an independent joint expert.[23]Mr Meredith-Hardy indicated, on instruction, that what was recorded there may not necessarily be accepted, although he did not in terms say that it was inaccurate. However, there has been no challenge in his Notice of Appeal to that finding or statement by the Tribunal. If there had been, and if that challenge, if made, had been permitted through under Rule 3, that would have been the kind of challenge which would have been referred to the Chairman and the Employment Tribunal for their comments, and I have no doubt would or could have been justified by their notes. The fact is that there is and was no challenge to that finding. There is thus not simply an inference which falls to be drawn from the history of the Fagin and Christie-Brown incidents, but from the statements of the Appellant herself in the hearing. In those circumstances, we are entirely clear that the Tribunal was justified in finding, not only that there had been a breach of the Orders, but that such breach was a deliberate one.[24]Mr Meredith-Hardy submits that the Tribunal were perverse in not having taken any account - it cannot simply be not taking adequate account because that would not be a perversity argument - of the fact that the Appellant was disabled.[25]In so far as he appears to suggest that they had forgotten the fact that she was disabled, and did not bear it in mind at all, that is clearly unarguable. It is quite apparent that the Tribunal knew it was dealing with a claim under the DDA, in which the Appellant was alleging that she was disabled and had a mental disorder, as was evidenced by reports upon which she sought to rely. Indeed, the Tribunal contrasts her willingness and ability to obtain reports on her own behalf, with the reluctance, to put it at its highest, to co-operate with reports which were going to be obtained from which the Respondent might gain some advantage. In paragraph 14, the passage to which we referred earlier, the Tribunal continues as follows:
"This is hardly the attitude of a co-operative Claimant who is seeking to obtain the necessary medical evidence to prove her own case. It is difficult, we find, to understand why she should adopt this approach. It also contrasts with the efforts she was apparently taking to obtain evidence on her own behalf. She has now produced to us a report which she obtained from her clinical psychologist on 13 March 2007, which she must have asked be sent directly to the Tribunal because that is to whom the letter is addressed. She must have taken positive steps to obtain this report. [That is the report from Dr Cirkovic, to which reference was made in the ARO judgment]. There is a further report sent to her GP from a neurologist to whom she had been referred [a reference to Dr Stevenson] , on 1 June 2007, which is very much in the middle of all the difficulties which we have recited. We note that she had managed to obtain a copy of this report from her doctor but had not disclosed any other part of her records, which she might as easily have obtained as that document. From this we find that the Claimant was at that time quite able and willing to see doctors whom she believed would promote her case but, for reasons entirely unclear to us, [and we suspect that they are inferring that such reasons are not unclear to them, but rather that they are clear but not justifiable] was not prepared to see the independent, jointly instructed doctor whom the Tribunal had, on all the occasions which we have outlined, required her to consult."
When one adds to that paragraph 24 of the judgment, it is clear beyond doubt that the Tribunal full well knew that she was alleging her disability:
"The Respondent, we find very reasonably, objects to going ahead on the basis of the evidence they say which the Claimant has produced. It is after all from her own consultants. It does not follow that it is tainted but it may be. The consultants, who are treating her, are entitled to accept her accounts without more. An independent expert would have to adopt a balanced view. Importantly none have answered any questions from the Respondent. It does not appear they are going to be present in the Tribunal to explain their evidence and be cross-examined."
[26]What might have been relevant, and, if it had been before the Tribunal, would not, we feel sure, have been ignored, would have been medical evidence that at the relevant time the medical condition of the Appellant was such that she could not have properly been examined, that there was some justification for her inability to be examined, if such it was, or her inability to take any step to give instructions to produce the medical records. There was no such medical evidence available; indeed we refer to the earlier judgment, in which it would appear that her GP was suggesting that she was slightly improved during the period between May and July 2007. In those circumstances, the first ground of the Blockbuster case was plainly established and there is no perversity in that conclusion.[27]The Tribunal went on to conclude that there could not be a fair trial by virtue of that deliberate and persistent failure. We have already indicated that they did not need to have gone on so to conclude, and that even if they were not right on that aspect their first conclusion would have been sufficient, but in the event we are entirely satisfied that there can be no challenge in law to their conclusion that a fair trial had been rendered impossible, for the reasons the Tribunal give in paragraphs 23 and 24 of the judgment. The absence of independent medical evidence, but also of evidence which should thus became available on an informed basis to the Respondent, was going to make it impossible for them adequately to probe the case that was being made by the Appellant.[28]The Appellant, of course, was not being driven from the judgment seat in its entirety by the claims for disability discrimination being struck-out. It was only those claims which required a medical report which were the subject matter of the Orders that had been made; we refer to the ARO judgment in that regard. As it happens, although it has not been necessary for us to consider this matter on this appeal, the remainder of her claims also ran into the sand, and were struck out on 2 June 2008, among other things for failure to comply with Orders, but that is subject to a separate appeal before the EAT and we say no more about it. But, certainly, looking at the matter at the time that this decision was made by this Employment Tribunal, as we do, there was only a decision that a fair trial was not possible in respect of the disability discrimination claims; and Mr Meredith-Hardy has not put forward any separate arguments to assert the perversity of such a conclusion.[29]What Mr Meredith-Hardy has argued was effectively proportionality, namely that the case could and should have been adjourned, in order to give the possibility of a fair trial if there were compliance with the Orders, after all those failures so to comply. This is where his case that the discretion was vitiated arises. He was however sensible enough to concede in argument that, if the Tribunal's finding that the non-compliance with the Orders was deliberate was one which could not be faulted, then his case on this aspect would be very difficult, if not impossible, to pursue; not because, although this is part of it, in those circumstances the Tribunal would be in a position to say that the litigant was debarred from pursuing a case where she had so deliberately and blatantly failed to comply with Orders, but because the Tribunal was entitled to, and did, draw the inference, and reach the conclusion, that there would be no likelihood of any change thereafter if, for example, "one last chance" was given to the Appellant. There is specific reference to this in paragraph 24 of the judgment, where the Tribunal says:
"If such an adjournment was agreed, it would have to be on the basis that the Claimant would then undergo a medical examination by a joint expert as a pre-requisite of pursuing her complaints. In view of the history, which has been explained, we have some doubts as to whether an adjournment would achieve that end. We have found that the Claimant has demonstrated a reluctance to disclose her records and without that disclosure it is very doubtful whether a proper and full report could be obtained. We are not confident that she will not find more excuses for failing to see the expert. Her assurances that she will now cooperate do not ring true, since they have only been made at this late stage."
And this of course was against the background of the finding, to which we have referred, in paragraph 18 of the judgment, whereby the Tribunal recorded the Appellant's expressed reluctance to reveal her medical records.[30]The Tribunal, as we have said, deals with this question of proportionality in paragraphs 25-28 of its judgment, in succinct and clear terms. We have no doubt at all that there is no basis upon which the discretion that it exercised - not to adjourn - and the conclusion it reached - that the strike out was inevitable and right and proportionate - can be faulted.[31]In those circumstances we dismiss this appeal.