MR H FREDERICS v KINGSTON UNIVERSITY [2009] UKEAT 0239_09_1509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0239_09_1509Case No Appeal No. UKEAT/0239/09/ZT UKEAT/0240/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR H FREDERICSAPPELLANTKINGSTON UNIVERSITYRESPONDENT
Before
His Honour Judge AnsellDate 15 September 2009
[1]APPEARANCES For the Appellant MR ADRIAN MELIA (Representative) For the Respondent MS E SMITH (of Counsel) Instructed by: Messrs Mills & Reeve LLP Solicitors Francis House, 112 Hills Road, Cambridge Cambridgeshire CB2 1PH SUMMARY PRACTICE & PROCEDURE Case Management Following non-compliance with an unless order a party in breach would have to apply for relief by way of review.[2]It is permissible to permit questions to be put to an expert witness under case management powers. HIS HONOUR JUDGE ANSELL "On or before 15 August the Claimant shall send the Respondent and the Tribunal medical reports concerning each alleged disability, namely, depression and gastroenteritis. Unless this order is complied with, all the claims under the Disability Discrimination Act 1995 shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or hearing." "In the judge's view the order allows ample time for the obtaining of medical reports. For the avoidance of doubt, at paragraph 5 of the order is complied with by providing a report about depression, but not about gastro-enteritis, it is only the complaint about gastro-enteritis that shall be automatically dismissed." "A hearing was conducted on 10 July for Employment Judge to determine whether its response constitute compliance with the unless order or not. It is common ground that if the Claimant was, indeed, in breach of the unless order then there was no discretion whether or not to strike out the claim. The strike out operated automatically upon breach of the order. This is made plain in the Decision of Moore-Beck LJ, giving a judgment in the Court of Appeal in Marcan Shipping ( London ) Ltd v Kefalas [ 2007 ] EWCA Civ 463 ; [ 2007 ] 1 W.L.R. 1864 in relation to the civil procedure rules where he said this at paragraph 34:
'In my view it should now be clearly recognised that the sanctioning body of an Unless order into just reform takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect.'
This has a number of consequences, three of which of I think it is worth drawing particular attention. The first is that it is an unnecessary, indeed, inappropriate, for a party who seeks to run a non-compliance with an order of that kind to make an order to the Court for a sanction to be imposed whereas the Judge put it activated. The sanction proscribed by the order takes effect automatically as a result of the failure to comply with its terms. If an application to enter judgment is made under Rule 3(5)(v), the Court's function is limited to decide in what order it should properly be made to protect the sanction which has already taken effect. Unless the party in default has applied for relief from the Court itself decides for some exceptional reason that it should act on its own initiative, the question of whether the sanction ought to apply does not arise. It must be assumed that at the time of making the order the Court considered all the relevant factors and reached the Decision that the sanction should take effect in the event of default. If it is thought that the Court should not have made the order in those terms in the first place, the right course is to challenge on appeal but it may be better to make all reasonable steps to comply to seek relief in the event of default." "The same position has been adopted in respect to non-compliance with an Unless order before the EAT in Uyanwa-Odu and Adeniram v Schools Offices Services Limited and Caxton Islington Limited, UKEAT/0294/05 /ZT by Peter Clarke HHJ giving judgment in the EAT said this at paragraph 28:
'Following expiry of the time for compliance, strike out sanction takes effect. Thereafter , it is open to the party at default to apply for a review of the strike out judgment coupled with an application to extend time for compliance with the underlying order requiring him to do a lot from something he said and list of documents and witness statements.'" "Having reconsidered the point I see no reason to depart from my approach in Uyanwa-Odu and Adeniram v Schools Offices Services Limited and Caxton Islington Limited and unless order made here is an order within Rule 28B which is not capable of review by virtue of 34. However, once the sanction of strike out automatically takes effects for a non-compliance, that is a final determination of proceedings under Rule 28(1)(a) allowing the review application under Rules 34 to 36." "Paragraph 6 of the Tribunal's Written Reasons contained in its Order for Directions following the Case Management Discussion on 6 May 2008 clearly states that the medical report should contain a diagnosis, history, details of any treatment and the details of the effects of the impairment on the Claimant's normal day to day activities. The Tribunal's letter goes on to state that, ' the focus of the report should be on the Claimant's period of employment (namely, September 2002 until July 2006), which is the material time, and not on his current condition .'
Having reviewed Professor Hirsch's report in detail, it is clear that this report fails to address these issues. The focus of the report is not on the relevant period of the Claimant's employment from September 2002 to July 2006, as the Employment Tribunal had directed. Rather, the focus of the report is on the Claimant's condition since termination of his employment. The report also fails, among other things, to address the details of the effects of the alleged impairment on the Claimant's normal day to day activities and fails to deal with the issue of the effects of medical treatment on the Claimant's alleged impairment. Based on this wholly satisfactory report, the Respondent is not in a position to accept that the Claimant is disabled by reason by his alleged depression and therefore the issue of disability is not conceded." "… the Respondent considers it may be helpful and may avoid the need for it to obtain its own medical report if it were given the opportunity to pose supplementary questions to Professor Hirsch in order to address the key issue which his report fails to deal with." "I have decided it is appropriate to permit the Respondent's solicitors to put written questions to Professor Hirsch, as the answers may obviate the need for the Respondent to obtain its own medical report. The Claimant must be been informed of the questions. I have not received a copy of Professor Hirsch's report. My direction is that: 1. On or before the 19 September the Respondent shall send the Tribunal a copy of Professor Hirsch's report, 2. The Respondent has leave to send written questions by letter to Professor Hirsch by 26 September, and must send a copy of the letter to the Claimant and the Tribunal. 3. The Respondent shall send the Claimant and the Tribunal a copy of Professor Hirsch's reply." "If a Claimant instructs Professor Hirsch not to answer the questions, I will not make any further order. Any issues about the reasonableness of the Claimant's conduct can be raised at the hearing. It is for the parties to decide what medical evidence they wish to produce at the hearing on the issue of the Claimant's disability. I cannot comment on the quality of such evidence." "Can the Tribunal now give judgment about the Claimant's disability on the basis of Professor Hirsch's report?" "That if the Claimant instructed Professor not to answer questions:
"I will not make any further order."