MR G SAUNDER v BIRMINGHAM CITY COUNCIL [2008] UKEAT 0591_07_2105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0591_07_2105Case No Appeal No. UKEAT/0591/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G SAUNDERAPPELLANTBIRMINGHAM CITY COUNCILRESPONDENT
Before
His Honour Judge Peter ClarkDate 21 May 2008
[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Instructed by: Messrs Lovells LLP Solicitors Atlantic House 50 Holborn Viaduct London EC1A 2FG For the Respondent MR JAMES CORBETT (One of Her Majesty's Counsel) Mr Jonathan Meichen (of Counsel) Instructed by: Birmingham City Council Legal Services Ingleby House 11-14 Cannon Street Birmingham B2 5EN SUMMARY Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke – Case management Joint expert witness appointed by ET. Whether his evidence should be excluded on grounds of bias. Circumstances in which a party may adduce his own expert evidence despite appointment of a joint expert. Principles upon which EAT can interfere with case management orders made by ET. HIS HONOUR JUDGE PETER CLARK This is an appeal by the Claimant, Mr Saunder, in proceedings before the Birmingham Employment Tribunal, against a case management order made by Employment Judge Goodier, sitting alone on 1 October 2007,(a) refusing to disallow evidence at the remedy hearing from Professor Freeman, the Tribunal appointed joint medical expert and(b) refusing to allow the Claimant to adduce the evidence of his own medical experts, Dr Deuchar and Dr Khalil. Reasons for those orders were promulgated on 12 October 2007. The Respondent before me is Birmingham City Council. Background[2]This is, as the Judge observed, extremely long-running litigation. The Claimant, born on 26 November 1975, is a Sikh of Indian origin and British nationality. In October 1997 he graduated from Luton University with a 2.2 Honours degree in law. He hoped to train as a solicitor. That did not work out for him for reasons analysed by an Employment Tribunal chaired by Judge Goodier which sat over a number of days between 4 June 2003 and 24 February 2005 to hear his complaints of racial discrimination brought against the Council and 3 named individuals. That Employment Tribunal's reserved judgment with reasons was promulgated on 9 May 2005. The relevant section is at paragraph 20 of those reasons (LR).[3]Having failed to progress in his chosen field the Claimant took advantage of the Council New Deal programme, obtaining employment with the Council in a clerical capacity in the Housing Department. That employment extended from 12 April 1999 until 7 March 2002. From 29 January 2000 he was absent on sick leave.[4]In all he raised some 48 individual complaints of unlawful racial discrimination. Just 3 were upheld. They related to remarks made by a manager, Eddie Sadler (the 2 nd Respondent below), on 14 and 26 September and 6 October 1999. The Council was found liable for those acts of discrimination. All other complaints were dismissed (including those against Miss Cook and Mr Christopher; the 3 rd and 4 th Respondents).[5]At the end of those reasons (paragraph 88) directions were given for a remedy hearing. In particular it was ordered that if the Claimant maintained his contention that he suffered a severe psychiatric illness as a result of bullying and racial discrimination (the causation contention) (he did) the parties were to agree upon a single neutral consultant psychiatrist who was to be jointly instructed to report to the Tribunal on the causation contention.[6]The parties were to share that expert's fees and directions were given for a joint letter of instructions. In the event the parties were unable to agree a joint expert and the matter returned for a CMD before Judge Goodier on 31 July 2006. Both parties, who had obtained reports from doctors instructed by them, submitted lists of experts. In the absence of agreement the Judge selected Professor Freeman, from the Respondent's list, as the neutral expert. That direction was promulgated on 1 August 2006.[7]Professor Freeman interviewed the Claimant on 8 January 2007 and provided a report in writing dated 2 March 2007. It is unhelpful to the Claimant's cause. In summary he concluded(a) that the Claimant's mental illness, which he diagnosed originally as a paranoid psychosis with depressive features, pre-dated the acts of discrimination as found by the Employment Tribunal in September/October 1999 and(b) that the 'causation contention' identified by the Employment Tribunal must be rejected as scientifically indefensible.[8]The Claimant then obtained reports from Dr Deuchar (dated 4 July 2007) and Dr Khalil (20 July 2007), both commenting on Professor Freeman's report. On 1 August 2007 new solicitors instructed by the Claimant, replacing former solicitors who came off the record in June 2007, made applications to the Employment Tribunal(a) to exclude Professor Freeman's evidence and(b) to adduce in evidence the reports by Dr Deuchar and Mr Khalil. The Employment Tribunal Decision[9]On 1 October 2007 the Claimant was represented, pro bono, by Ms Karon Monaghan (now Queen's Counsel); the Respondent by their solicitor, Ms Dhillon. I have read Ms Monaghan's written submissions received by Judge Goodier, who also heard oral representations on both sides.[10]The principal thrust of the Claimant's application was that, contrary to his duty as an independent expert, Professor Freeman had exhibited bias(a) against the Claimant himself and(b) against the contention that race discrimination may cause or contribute to mental illness.[11]The Judge dealt with each of the arguments presented to him in support of the complaint of bias and rejected them (CMD reasons; paragraphs 9-19). In particular, as to a suggestion that, in his report, Professor Freeman gave an impression of racial stereotyping and possible racial bigotry, the Judge was of the opinion that such criticism may be advanced by way of cross-examination of Professor Freeman at the remedy hearing (para 16).[12]Having ruled that Professor Freeman could give evidence at the hearing, the Judge dealt shortly with the application to adduce the evidence of Dr Deuchar and Dr Khalil. He said at para 20:
"Dr Deuchar wrote reports on the Claimant at an earlier stage of these proceedings, and I intend no disrespect to his professional integrity when I say that they may be characterised as partisan in the same way as those of the consultant who was then instructed by the respondent. This, of course, was precisely what made it appropriate for a neutral expert to be recruited. Dr Khalil is the claimant's treating consultant psychiatrist. Again, I mean no disrespect when I say that such a person has a professional duty to maintain a relationship with her patient which is simply inconsistent with impartiality. Further, if I gave leave for their reports to be put in, an application by the respondent for leave to put in expert reports in reply would be certain to succeed, and we should be back to the battle of competing experts. I reject the application."
The Appeal[13]Mr Horan, now representing the Claimant, again pro bono, submits that the test of apparent bias in relation to an expert witness is that which is to be applied to a court or Tribunal see Porter v Magill [2002] 2 AC 357 , per Lord Bingham, paragraph 102; Locabail (UK) Limited v Bayfield Properties Ltd [2001] ALL E.R 65. The question is (applying the test in Porter v Magill ) whether a fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased.[14]He submits that precisely the same test applies to an expert witness, relying on a decision in the Administrative Court (Hunt J) in Smith Klein Beecham Plc v Advertising Standards Authority (CO/2291/2000)[15]I reject that submission. I agree with Mr Corbett QC that the classic statement of the duties of an expert witness is to be found in the judgment of Cresswell J in The Ikarian Reefer [1993] 2 Lloyds Rep 68, 81-82, to which the Judge below was referred by Ms Monaghan (CMD Reasons, paragraph 9). Those duties include the obligation to given an objective, unbiased opinion on matters within his expertise. If he fails to fulfil that obligation the Tribunal will no doubt take that into account in assessing his evidence and whether or not it should be accepted.[16]A practical application of the principle may be found in the judgment of Nelson J in Armchair Passenger Transport Limited v Helical Bar Plc [2003] EWHC 367 (QBD). There, the defendant, a party to proceedings arising out of a road traffic collision wished to call an expert witness to give opinion evidence as to car hire charges forming part of the claim. Objection was taken that the proposed expert had formerly been employed as a Chief Executive of the rental firm from whom the First Claimant had hired a replacement vehicle. A Judge sitting in the County Court first permitted the defence to rely on the expert report, but a second Judge later revoked permission. That ruling came before Nelson J on appeal.[17]Applying the CA decision in Factortame (No8 ) [2002] 3 WLR 1104 , disapproving the approach of Evans-Lombe J in Liverpool R.C. Archdiocese Trustees v Goldberg (No2) [2001] 4 All E.R. 950, Nelson J (para 29) directed himself as to the guiding principles emerging from the cases. In particular, he held that the test of apparent bias is not relevant to the question of whether or not an expert witness should be permitted to given evidence, applying in particular the passage from the judgment of Lord Phillips MR in Factortame (No 8) cited at paragraph 25 of the judgment in the Armchair Case. The appeal against the second County Court ruling was allowed and the order of the first Judge reinstated.[18]With that approach in mind Mr Corbett has satisfied me that there are no grounds in law for interfering with Judge Goodier's ruling that Professor Freeman's evidence should be excluded, for the detailed reasons which he gave. It is common ground between Counsel that the power of this appeal Tribunal to interfere with a case management decision below is circumscribed in the way set out by the CA in Noorani v Merseyside TEC Limited [1999] IRLR 184 , as routinely applied in this Tribunal; see, by way of example, Makar v Triad Group Plc (UKEAT/0513/06), per HHJ Richardson, paragraph 26; Mid-Devon DC v Stevenson (UKEAT/0196/07/LA 18 October 2007) per HHJ Burke QC, paragraphs 27-31. In short, a case management decision by the Employment Tribunal can only be challenged on "Wednesbury" grounds, that is, taking into account irrelevant matters, failing to take into account relevant matters or reaching a decision which no reasonable Tribunal could reach.[19]Having reached that conclusion and on the basis that Professor Freeman's evidence will not be excluded at the remedy hearing below I turn to the second part of the application which forms the basis of Mr Horan's second ground of appeal.[20]It is perhaps unfortunate that Judge Goodier was apparently not referred, as I have been, to the CA decision in Daniels v Walker [2000] 1 WLR 1382 and the application of those principles by Neuberger J, as he then was, in Cosgrove v Pattison [2001] C.P Rep 68.[21]Daniels was a personal injury case. The Claimant, then a child of 7, suffered severe injuries when struck by the defendant's motor car. It was common ground that the Claimant would require life-time care; the relevant issue, which significantly affected the overall level of damages, was whether he should receive full or part-time care.[22]The case management issue which came before the Court of Appeal was whether the defence should have the right to have the Claimant examined by an expert whose evidence would go to the relevant issues notwithstanding that the parties had agreed to a joint report from a different expert.[23]The first instance Judge initially ruled that permission should be granted to the defence and later, following further argument, withdrew permission. It was that latter decision against which the defence appealed.[24]In giving the leading judgment of the Court, allowing the appeal, Lord Woolf MR gave valuable guidance on the approach to be taken on application by a party to introduce further expert evidence where a joint expert has already been instructed and reported.[25]That guidance was adopted and applied by Neuberger J in Cosgrove v Pattison . That case concerned a boundary dispute in which a joint expert surveyor was appointed to report and subsequently answered questions put to him by both parties. As a result of anxiety about potential bias of the joint expert the Appellants, Mr and Mrs Pattison, applied for permission to call their own expert. The County Court Judge refused their application. That ruling went on appeal to the High Court.[26]It so happened that the CA decision in Daniels was reported the day after the County Court Judge's ruling. It was therefore not available to him but was considered by Neuberger J, leading to this helpful list, albeit non-exhaustive, of factors to be taken into account when considering an application to permit a further expert to be called where there is already a jointly appointed expert. They are; "First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly, the reason the new expert is wanted; fourthly, the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application, seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any other special features of the case; and, finally, and in a sense all embracing, the overall justice to the parties in the contest of the litigation."[27]Having considered those factors in the context of the case Neuberger J allowed the appeal, permitting the Appellant to instruct and if so advised call their expert, with similar facilities being granted to the opposing party.[28]During argument before me I raised with Mr Corbett directly the question as to whether any objection was taken to Mr Horan advancing what may be called the Daniels / Cosgrove argument in the present case, those authorities not having been cited below, based on the Kumchyk principle, that is, the general prohibition in this appeal Tribunal on a party taking a new point which was not raised below, save in exceptional circumstances. He very fairly indicated that no such objection was taken.[29]I return to the limits of my jurisdiction on appeal, as explained in Noorani . Did the Judge below take into account irrelevant factors or fail to take into account relevant factors? Was his ruling on the second part of the Claimant's application "perverse" in the legally understood sense?[30]As to the first of those questions, my answer is in the affirmative. In his short reasons for dismissing that part of the application (CMD reasons; paragraph 20, above) his principal reason for refusing permission to the Claimant to call Dr Deuchar and Dr Khalil was that the former was partisan and the latter the Claimant's treating doctor. That was said in the context that these factors made it appropriate to recruit a neutral expert; hence Professor Freeman's nomination by the Tribunal. However, Professor Freeman's report was subject to detailed criticism by the Claimant through Ms Monaghan which the Judge did not reject as fanciful. On the contrary, he anticipated cross-examination of Professor Freeman on the serious allegation that he displayed signs of racial stereotyping and possible racial bigotry (paragraph 16).[31]Whilst such cross-examination can take place through Counsel who has the benefit of advice from one or both of the Claimant's experts, ultimately the Tribunal has no expert evidence before them to contradict the opinion of Professor Freeman as matters stand under Judge Goodier's rulings. In particular, conflicting evidence as to whether the Claimant's mental illness pre-dated the 3 acts of racial discrimination found by the Liability Tribunal and whether mental illness can be caused by racial discrimination. This, in my view relevant factor, appears to have been overlooked.[32]Moreover, the list of factors identified in Cosgrove , following Daniels , do not appear to have been considered by the Judge below. I say that uncritically, since he was not referred to those cases; however, the fact remains that, as I read the CMD reasons, the Judge failed to take into account the following material factors urged upon me by Mr Horan; first the importance of the causation issue and secondly the effect which the resolution of that issue would have on the amount of compensation to be awarded. True it is, as Mr Corbett points out, that the causation issue was identified by the Judge as long ago as 2005, when directions were given for the remedy hearing (LR paragraph 88) and at the CMD (reasons para 19) the Judge recognised that the report was unfavourable to the Claimant ("…it is not surprising that his advisers have made such Herculean efforts to bury it."). However, I see no indication that these factors were weighed in the balance when the Judge came to consider the second part of the Claimant's application.[33]In these circumstances I am persuaded by Mr Horan that I can and should, applying Wednesbury principles adopted by the CA in Noorani , interfere with the Judge's second ruling and allow the appeal in that respect only. Disposal[34]The question now arises as to whether I should remit the matter for re-hearing on the second part of the Claimant's application or decide the point myself, assuming the powers granted to me by s35 Employment Tribunals Act 1996 . I shall adopt the second course. It seems to me to be proportionate to do so in light of the time which this litigation has already taken to reach this stage, with the question of remedy still to be resolved and in view of the fact that all the material which was before the Employment Tribunal is available to me. No evidence is necessary, nor findings of fact.[35]Mr Corbett has addressed me on each of the factors identified by Neuberger J in Cosgrove .[36]It is abundantly clear that the causation issue is absolutely central to the question of remedy in this case; on the basis of Professor Freeman's report the Claimant stands to recover a modest award for injury to feelings and no more. If his causation contention is made out he will also recover substantial unlimited compensation for psychiatric injury and loss of prospective earnings. The amount at stake cannot be overstated.[37]The Claimant's own expert is said to be required to make good the serious attack on Professor Freeman's approach to this case. Mr Corbett characterises it as outrageous. I prefer to adopt the Judge's line below; that these matters are for cross-examination at the remedy hearing. However, cross-examination is only truly effective where there is evidence to support that which is put in cross-examination. This is particularly so where the allegation is that the expert has failed to comply with his duty to give an objective, unbiased opinion within his expertise.[38]Turning next to the effect of permitting the Claimant to call expert evidence at the remedy hearing. I accept Mr Corbett's point that further delay will inevitably ensue in a case which is already 8 years old. However, it should be said that at this juncture Professor Freeman has reported, as have Dr Deuchar and Dr Khalil. Indeed Dr Deuchar has already produced 7 earlier reports in this case. It is not therefore the position, as in Cosgrove , where a new expert is yet to be appointed by the applying party. Mr Corbett also points out that this application was made before the Claimant had administered questions to Professor Freeman or arranged a meeting between him and his own doctors as recommended by the Master of the Rolls in Daniels . As to questions being put I accept Mr Horan's submission that little purpose would be served, give the nature of the challenge to Professor Freeman's evidence. The time for a meeting between experts, it seems to me, is after a direction has been given for an additional expert. I should also deal with Mr Corbett's point that there was no appeal against the orders for a joint expert to be agreed on 9 May 2005 and Professor Freeman's appointment by the Judge on 31 July 2006. I attach little significance to that; it was not until Professor Freeman reported that the Claimant expressed concern as to his independence. There was a further delay between the date of his report, 2 March 2007 and the Claimant's application made on 1 August 2007, however, I accept that that delay was in part caused by the change of solicitors for the Claimant, who is reliant on pro bono advice and the need to obtain his own medical evidence.[39]Taking all those factors into account I must now carry out the balancing exercise; where does the justice between the parties lie? Mr Corbett is right in submitting that granting the Claimant's application, in whole or in part will lead to further delay and expense to the Respondent, which is funded by the tax-payer. The Claimant should not be permitted to introduce his own experts simply because he does not like the report produced by a properly qualified independent expert appointed by the Tribunal.[40]I see the force of those arguments, however on balance I am driven to conclude that the greater injustice will be caused to the Claimant, who has won in part at the liability stage, if he is not permitted to call expert evidence to attempt to refute the opinion of Professor Freeman. On the causation issue rests a very large award in damages; if he is to receive a modest award that should be after evidence is considered on both sides on that central issue.[41]In these circumstances I shall allow the appeal in part. Professor Freeman's evidence will be received by the Employment Tribunal at the remedy hearing; I shall permit the Claimant to call one doctor out of Dr Deuchar and Dr Khalil. It would be disproportionate to have two doctors from the same discipline. He must notify the Respondent and the Employment Tribunal in writing within 14 days of the seal date of my order accompanying this judgment which of those doctors he wishes to nominate. Mr Corbett had reached no concluded view during our discussion as to whether or not the Respondent would wish to call their own expert or rely on Professor Freeman. A decision must now be made and notified to the Employment Tribunal and the Claimant in writing within 28 days of my order. Any further case management decisions, particularly in relation to a meeting between experts to narrow the issues, shall be taken by the Employment Tribunal. I see absolutely no reason why Judge Goodier should not continue to manage this case and to sit with his original lay colleagues, if practicable, at the final remedy hearing. Whilst I have, in part, taken a different view on one aspect of the case that is in large measure due to the further argument which I received on appeal.