The discretion to allow further Expert Evidence to be obtained
[2007] UKEAT 0196_07_1810 TEDR Volume 12 Issue 3
The Facts
The proceedings consist of a claim presented to the Employment Tribunal on 30th November 2005 by Ms Stevenson against her employers, MDDC, in which she complains of unfair dismissal, disability discrimination and failure, in breach of contract, to pay medical expenses which she has incurred. The only disability referred to in the claim form was “a back injury”.
MDDC disputed that Ms Stevenson was disabled and that the dismissal was unfair or discriminatory. Their case is that Ms Stevenson had been off work for ill health from May 2004, that by July 2005 she still appeared to be unable to work in any capacity and that she had been fairly dismissed for incapability.
In March 2006 the Tribunal, at a Case Management Discussion (“CMD”) made a number of directions including that: the case be listed for a full hearing of all issues, the parties would jointly instruct a medical expert and if a joint expert could not be agreed the Tribunal would give further consideration to the medical evidence. A hearing date was fixed.
The parties jointly instructed a consultant neurologist, Dr Gibson. He did not see Ms Stevenson until 11th July; no reasons for that delay have been put before me. His report is dated 2nd August. He concluded that since a fall in May 2004, Ms Stevenson had been functionally incapacitated but that her continuing symptoms were not organic and were probably psychologically. He made reference to a chronic depressive state. The hearing date had to be re-fixed, for 14 November; this delay reflected no blame on MDDC.
On 28th September 2006 Ms Stevenson’s solicitors wrote to MDDC putting forward, for the first time, chronic depression as Ms Stevenson’s disability and saying:
“It seems to us that more medical evidence on this aspect of our client’s condition is required in order to fulfil the overriding objective of the Tribunal proceedings. We are now seeking to jointly instruct a consultant psychiatrist in order to secure the relevant information for the Tribunal. It is a matter for you as to whether or not you wish to jointly instruct such an expert and share the costs or whether you will seek to rely on an expert whom we shall otherwise instruct on the Claimant’s behalf.”
That letter was clearly an invitation to MDDC to agree the joint instruction of a joint psychiatrist. It gave an indication that, if separate experts were to be relied upon, a costs order might be sought. MDDC’s solicitor understood from that letter that it was accepted on behalf of Ms Stevenson that, if a joint appointment was not agreed, each party would be able to instruct its own expert. It is possible that Ms Stevenson’s solicitors were seeking, by threat of costs, to persuade MDDC to agree a joint instruction; but they did not shut the door on MDDC instructing its own expert.
At that stage there had been no attempt to amend the claim form. The hearing was just six weeks away. MDDC replied by return saying that Ms Stevenson’s case was that her disability consisted of a back injury, which case was unsupported by medical evidence. They accordingly declined to agree a joint psychiatric report.
Ms Stevenson’s solicitors did not apply to the Tribunal for an order that there should be a joint appointment or, at that stage, for leave to amend the claim form. Instead they obtained a psychiatric report from Dr Lynch, dated 12th October 2006. His report refers to complex matters of causation and the interrelationship between symptoms of pain and other matters and psychiatric illness. His general conclusion was as follows:
“I would therefore support based on recent findings and available information, a diagnosis of depressive episode (single episode) of mild to moderate severity with marked anxiety features. I suspect that this is fluctuated in its intensity (sic) and severity and maybe affected by stress and Ms Stevenson’s experience of pain and physical discomfort.”
Ms Stevenson’s solicitors then, with less than a month to go before the hearing, applied for leave to amend her claim by adding depression as a disability.
MDDC opposed the application on the basis that it was made too late. As a result there was a further CMD on 1st November 2006, on that occasion before a different Chairman. He gave leave to Ms Stevenson to amend the claim, as sought. He further ordered that the hearing date be vacated; he did not fix a new date but adjourned the CMD for 4 weeks, to be resumed on a day to be notified.
The Decision of the Chairman of the Employment Tribunal which was later appealed to the Employment Appeal Tribunal (“the EAT”)
“(1) As a matter of case management expert evidence should be limited to that which is reasonably required to resolve an issue. That is an approach supported by the CPR. Ultimately I was not satisfied that any further expert evidence was reasonably required to determine the issue of whether or not in relation o impairment the respondent was or was not a disabled person under the DDA.
(2) The respondent bears the burden of proving that she is disabled in relation to mental impairment. It is therefore for the respondent to bring forward the relevant evidence to discharge that burden.
(3) The respondent had produced the report of the expert that she had instructed and upon whose report she wished to rely in discharging that burden. The appellant had made no suggestion that there was any lack of legitimacy in Dr Lynch’s approach, professional qualifications or ability to have prepared such a report nor was there any suggestion from the appellant that there was any irregularity in the way in which he had been instructed to prepare his report by the respondent’s representative. Therefore on its face Dr Lynch’s report appeared to be an entirely valid professional opinion upon which the respondent was entitled to rely in discharging the burden of proving that she was disabled.
(4) The appellant had rejected an early opportunity offered to it by the respondent to jointly instruct an expert on the question of mental impairment and although I accept that this opportunity was offered before the respondent was given leave to amend her claim to include one of mental impairment I considered it relevant that the appellant did not seek to raise the issue of wanting to instruct its own expert until a late stage following the receipt of Dr Lynch’s report and the addendum to it consequent upon the appellant’s written questions. It was my judgment that to accede to the appellant’s request to now instruct another expert would necessarily create delay. I could not identify any reason to create that delay.
(5) The appellant, had been given an opportunity of asking questions of the. expert following the Case Management Discussion on the 1st November. That is an approach which is consistent with the CPR.
(6) I was satisfied that the appellant’s request to instruct a further expert was simply as a consequence of it wanting to have an opportunity to find another expert who may hold a different professional view to that of Dr Lynch. This is supported in their letter to the tribunal of the 24 January “I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter.” However the appellant provided no basis upon which it should be given an opportunity to find such another expert as no argument was advanced to call into question the legitimacy of the professional view expressed by Dr Lynch. I accepted that it is likely to be possible to find an expert in any field who might disagree with a view expressed by a different expert. That however did not create a situation in which there was any necessity in all of the circumstances of this case to allow the appellant that opportunity.
(7) I also took into account the overriding objective of dealing with matters expeditiously and fairly. I was conscious of the fact that this claim was now relatively old. It had been presented in November 2005. It is undesirable to allow cases to not be brought on for hearing expeditiously although I accept there are often reasons where matters need to be delayed. I saw not reasons here for any further delay. I could discern no unfairness to the appellant for the reasons I already stated. The right opportunities had been offered to the appellant to play an appropriate role in the commissioning of the expert evidence and it was my judgment that acceding to the appellant’s request to nonetheless go on now to instruct a further expert would create a delay that was not necessary.
(8) It seemed unlikely to me that it was indicated to the appellant on the 1st November 2006 that as is stated by them in their Notice of Appeal they were’ given permission to instruct their own expert if necessary after Dr Lynch had answered questions put to him by the appellant. I formed this view from the Chairman’s notes which comprehensively record a discussion on all matters that are reflected in the Case Management Order issued by him and further record the reason for the adjournment being to allow the appellant an opportunity to ask questions of Dr Lynch. They make no reference to leave being given to the appellant to thereafter instruct a further expert. Further the respondent’s solicitor confirmed to me that he had no recollection of anything more than that the adjournment would be given to allow the appellant an opportunity to ask questions of Dr Lynch. However in this regard I can only rely upon the note and the respondent’s solicitor’s recollection as I was myself not present at that Case Management Discussion.”
The Reasoning and Decision on an Appeal against the above Decision made by the Employment Appeal Tribunal
The Chairman of the Employment Tribunal referred to the overriding objective at only one point in her reasons, in the context of delay; but the principal aim is that cases should be dealt with justly; and that includes, so far as is practicable, that the parties should be on an equal footing.
MDDC had been invited to agree to join to the joint instruction of a psychiatric expert at a time when Ms Stevenson’s claim had not been put forward on the basis of mental impairment; no application had been made to amend the claim form or for an order for a joint report before Dr Lynch was instructed; and, by the time an application to amend was made,
Ms Stevenson already had her own psychiatric expert (Dr Lynch) on who she wished to rely.
MDDC were not obliged to accept Dr Lynch’s report and were entitled to take reasonable steps to challenge and dispute his conclusions. It was not unreasonable for MDDC to seek by medical evidence to persuade the Tribunal to the view that Dr Lynch was mistaken and that there was no disability arising from mental impairment.
Only by allowing MDDC to seek to adduce such evidence to challenge that of Dr Lynch could the Tribunal comply with the overriding objective of dealing with the case justly and ensuring that the parties were on an equal footing.
Unless MDDC had conducted the litigation in some way which rendered it unreasonable for them to seek to dispute Dr Lynch’s evidence or if there were no basis on which Dr Lynch’s evidence could sensibly be disputed, it could not be just to deprive them of the opportunity to do so.
The Chairman failed to take into account the Overriding Objective’s emphasis on dealing with the case justly and even-handedly. The fact that Ms Stevenson had that burden of proof and therefore had to adduce relevant evidence to discharge it is not of itself a relevant reason for declining to permit the opposing party to call expert evidence in order to dispute the expert evidence by which the Claimant seeks to discharge that burden.
If a Tribunal concludes that a party has so conducted itself in relation to the deployment of its own medical expert as to make it unreasonable for that party to be permitted to call that expert, then of course it is open to the Tribunal to refuse to allow that evidence; and if a Tribunal properly concludes that the opposing party has no real basis on which to seek to challenge the evidence of the party which bears the burden of proof, then again it is open to the Tribunal to refuse such permission. That however was not the case here.
It seems that the Chairman took the view that MDDC had behaved unreasonably in seeking to obtain permission from an expert witness at the stage at which proceedings had reached when before her.
That criticism was unjustified as the chronology showed.
At the CMD which followed 2 weeks after Dr Lynch’s report, MDDC were wholly entitled and acted in accordance with good practice in seeking directions so as to ask questions of Dr Lynch. There was no suggestion that MDDC pursued questions to Dr Lynch as an alternative to calling their own expert. If that had been the case, there would have been no reason to have adjourned the CMD; it must inescapably have been in the minds of all concerned at that hearing that, if the answers to the questions were satisfactory to MDDC, no further issue as to medical evidence might arise but that, if those answers were not satisfactory, MDDC would or at least might wish to seek to adduce their own expert evidence. Were that not so … would not adjourned the CMD but instead would have fixed a date for a substantive hearing. As it turned out, the answers to the questions did not satisfy MDDC; and MDDC without delay re-listed the CMD in order to seek a direction for expert evidence.
The judge found that no reasonable Tribunal could take the view that MDDC had behaved unreasonably in delaying seeking their own expert until after the answers to the questions had been considered.
In her reasons the Chairman stated that MDDC’s case did not involve any attack on the legitimacy of Dr Lynch’s approach or his professional qualifications or ability and did not suggest any irregularity in the way in which he had been instructed.
However, it is not necessary for a party who wishes to dispute the conclusions of an expert and to do so by calling an expert of his own to demonstrate that his opponent’s expert has adopted an illegitimate approach, has insufficient qualifications or ability or has been irregularly instructed. He may do so by calling an expert who, reaches an alternative conclusion. The Tribunal then has to choose between the two expert opinions. There is no criticism properly to be made of a party who wishes to dispute the expert evidence of the other party in that way.
In the factual context in which the issue of psychiatric evidence arose, MDDC suspected malingering and, as they were entitled to do, did not accept Dr Lynch’s conclusions. There was no history of mental illness; and Dr Lynch’s opinions could fairly be said to be open to dispute.The answers given by Dr Lynch disclose an apparent change of mind as to the onset of depressive symptoms – from April 2005 to November 2004 – and are lengthy and complex and might be said not altogether to answer all the questions posed. Dr Lynch accepted that there might be different views as to the aetiology of Ms Stevenson’s experience of back pain and her psychological symptoms.
It could not in these circumstances be said that there was no basis for a challenge to Ms Stevenson’s assertion that she suffered from a disability arising from mental impairment, which challenge did not depend upon the lines of attack referred to by the Chairman in her reasons.
In her reasons the Chairman based her decision on whether it was necessary to allow MDDC to have the opportunity to challenge Dr Lynch; earlier she said that she had been guided by CPR 35.1; in her reasons she referred to “necessity”. Necessity was not the appropriate test. The judge rejected the views of the Chairman on the issue of current and future delay as being primarily the responsibility of MDDC.
For the above reasons the appeal was allowed and the court made directions itself on the basis that each party considered it was in as good a position to do so as the tribunal. Not surprisingly it granted directions permitting the calling of an expert who would in essence provide rebuttal evidence.
The Issues
The proceedings consist of a claim presented to the Employment Tribunal on 30th November 2005 by Ms Stevenson against her employers, MDDC, in which she complains of unfair dismissal, disability discrimination and failure, in breach of contract, to pay medical expenses which she has incurred. The only disability referred to in the claim form was “a back injury”.
MDDC disputed that Ms Stevenson was disabled and that the dismissal was unfair or discriminatory. Their case is that Ms Stevenson had been off work for ill health from May 2004, that by July 2005 she still appeared to be unable to work in any capacity and that she had been fairly dismissed for incapability.
In March 2006 the Tribunal, at a Case Management Discussion (“CMD”) made a number of directions including that: the case be listed for a full hearing of all issues, the parties would jointly instruct a medical expert and if a joint expert could not be agreed the Tribunal would give further consideration to the medical evidence. A hearing date was fixed.
The parties jointly instructed a consultant neurologist, Dr Gibson. He did not see Ms Stevenson until 11th July; no reasons for that delay have been put before me. His report is dated 2nd August. He concluded that since a fall in May 2004, Ms Stevenson had been functionally incapacitated but that her continuing symptoms were not organic and were probably psychologically. He made reference to a chronic depressive state. The hearing date had to be re-fixed, for 14 November; this delay reflected no blame on MDDC.
On 28th September 2006 Ms Stevenson’s solicitors wrote to MDDC putting forward, for the first time, chronic depression as Ms Stevenson’s disability and saying:
“It seems to us that more medical evidence on this aspect of our client’s condition is required in order to fulfil the overriding objective of the Tribunal proceedings. We are now seeking to jointly instruct a consultant psychiatrist in order to secure the relevant information for the Tribunal. It is a matter for you as to whether or not you wish to jointly instruct such an expert and share the costs or whether you will seek to rely on an expert whom we shall otherwise instruct on the Claimant’s behalf.”
That letter was clearly an invitation to MDDC to agree the joint instruction of a joint psychiatrist. It gave an indication that, if separate experts were to be relied upon, a costs order might be sought. MDDC’s solicitor understood from that letter that it was accepted on behalf of Ms Stevenson that, if a joint appointment was not agreed, each party would be able to instruct its own expert. It is possible that Ms Stevenson’s solicitors were seeking, by threat of costs, to persuade MDDC to agree a joint instruction; but they did not shut the door on MDDC instructing its own expert.
At that stage there had been no attempt to amend the claim form. The hearing was just six weeks away. MDDC replied by return saying that Ms Stevenson’s case was that her disability consisted of a back injury, which case was unsupported by medical evidence. They accordingly declined to agree a joint psychiatric report.
Ms Stevenson’s solicitors did not apply to the Tribunal for an order that there should be a joint appointment or, at that stage, for leave to amend the claim form. Instead they obtained a psychiatric report from Dr Lynch, dated 12th October 2006. His report refers to complex matters of causation and the interrelationship between symptoms of pain and other matters and psychiatric illness. His general conclusion was as follows:
“I would therefore support based on recent findings and available information, a diagnosis of depressive episode (single episode) of mild to moderate severity with marked anxiety features. I suspect that this is fluctuated in its intensity (sic) and severity and maybe affected by stress and Ms Stevenson’s experience of pain and physical discomfort.”
Ms Stevenson’s solicitors then, with less than a month to go before the hearing, applied for leave to amend her claim by adding depression as a disability.
MDDC opposed the application on the basis that it was made too late. As a result there was a further CMD on 1st November 2006, on that occasion before a different Chairman. He gave leave to Ms Stevenson to amend the claim, as sought. He further ordered that the hearing date be vacated; he did not fix a new date but adjourned the CMD for 4 weeks, to be resumed on a day to be notified.
The Decision of the Chairman of the Employment Tribunal which was later appealed to the Employment Appeal Tribunal (“the EAT”)
“(1) As a matter of case management expert evidence should be limited to that which is reasonably required to resolve an issue. That is an approach supported by the CPR. Ultimately I was not satisfied that any further expert evidence was reasonably required to determine the issue of whether or not in relation o impairment the respondent was or was not a disabled person under the DDA.
(2) The respondent bears the burden of proving that she is disabled in relation to mental impairment. It is therefore for the respondent to bring forward the relevant evidence to discharge that burden.
(3) The respondent had produced the report of the expert that she had instructed and upon whose report she wished to rely in discharging that burden. The appellant had made no suggestion that there was any lack of legitimacy in Dr Lynch’s approach, professional qualifications or ability to have prepared such a report nor was there any suggestion from the appellant that there was any irregularity in the way in which he had been instructed to prepare his report by the respondent’s representative. Therefore on its face Dr Lynch’s report appeared to be an entirely valid professional opinion upon which the respondent was entitled to rely in discharging the burden of proving that she was disabled.
(4) The appellant had rejected an early opportunity offered to it by the respondent to jointly instruct an expert on the question of mental impairment and although I accept that this opportunity was offered before the respondent was given leave to amend her claim to include one of mental impairment I considered it relevant that the appellant did not seek to raise the issue of wanting to instruct its own expert until a late stage following the receipt of Dr Lynch’s report and the addendum to it consequent upon the appellant’s written questions. It was my judgment that to accede to the appellant’s request to now instruct another expert would necessarily create delay. I could not identify any reason to create that delay.
(5) The appellant, had been given an opportunity of asking questions of the. expert following the Case Management Discussion on the 1st November. That is an approach which is consistent with the CPR.
(6) I was satisfied that the appellant’s request to instruct a further expert was simply as a consequence of it wanting to have an opportunity to find another expert who may hold a different professional view to that of Dr Lynch. This is supported in their letter to the tribunal of the 24 January “I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter.” However the appellant provided no basis upon which it should be given an opportunity to find such another expert as no argument was advanced to call into question the legitimacy of the professional view expressed by Dr Lynch. I accepted that it is likely to be possible to find an expert in any field who might disagree with a view expressed by a different expert. That however did not create a situation in which there was any necessity in all of the circumstances of this case to allow the appellant that opportunity.
(7) I also took into account the overriding objective of dealing with matters expeditiously and fairly. I was conscious of the fact that this claim was now relatively old. It had been presented in November 2005. It is undesirable to allow cases to not be brought on for hearing expeditiously although I accept there are often reasons where matters need to be delayed. I saw not reasons here for any further delay. I could discern no unfairness to the appellant for the reasons I already stated. The right opportunities had been offered to the appellant to play an appropriate role in the commissioning of the expert evidence and it was my judgment that acceding to the appellant’s request to nonetheless go on now to instruct a further expert would create a delay that was not necessary.
(8) It seemed unlikely to me that it was indicated to the appellant on the 1st November 2006 that as is stated by them in their Notice of Appeal they were’ given permission to instruct their own expert if necessary after Dr Lynch had answered questions put to him by the appellant. I formed this view from the Chairman’s notes which comprehensively record a discussion on all matters that are reflected in the Case Management Order issued by him and further record the reason for the adjournment being to allow the appellant an opportunity to ask questions of Dr Lynch. They make no reference to leave being given to the appellant to thereafter instruct a further expert. Further the respondent’s solicitor confirmed to me that he had no recollection of anything more than that the adjournment would be given to allow the appellant an opportunity to ask questions of Dr Lynch. However in this regard I can only rely upon the note and the respondent’s solicitor’s recollection as I was myself not present at that Case Management Discussion.”
The Reasoning and Decision on an Appeal against the above Decision made by the Employment Appeal Tribunal
The Chairman of the Employment Tribunal referred to the overriding objective at only one point in her reasons, in the context of delay; but the principal aim is that cases should be dealt with justly; and that includes, so far as is practicable, that the parties should be on an equal footing.
MDDC had been invited to agree to join to the joint instruction of a psychiatric expert at a time when Ms Stevenson’s claim had not been put forward on the basis of mental impairment; no application had been made to amend the claim form or for an order for a joint report before Dr Lynch was instructed; and, by the time an application to amend was made,
Ms Stevenson already had her own psychiatric expert (Dr Lynch) on who she wished to rely.
MDDC were not obliged to accept Dr Lynch’s report and were entitled to take reasonable steps to challenge and dispute his conclusions. It was not unreasonable for MDDC to seek by medical evidence to persuade the Tribunal to the view that Dr Lynch was mistaken and that there was no disability arising from mental impairment.
Only by allowing MDDC to seek to adduce such evidence to challenge that of Dr Lynch could the Tribunal comply with the overriding objective of dealing with the case justly and ensuring that the parties were on an equal footing.
Unless MDDC had conducted the litigation in some way which rendered it unreasonable for them to seek to dispute Dr Lynch’s evidence or if there were no basis on which Dr Lynch’s evidence could sensibly be disputed, it could not be just to deprive them of the opportunity to do so.
The Chairman failed to take into account the Overriding Objective’s emphasis on dealing with the case justly and even-handedly. The fact that Ms Stevenson had that burden of proof and therefore had to adduce relevant evidence to discharge it is not of itself a relevant reason for declining to permit the opposing party to call expert evidence in order to dispute the expert evidence by which the Claimant seeks to discharge that burden.
If a Tribunal concludes that a party has so conducted itself in relation to the deployment of its own medical expert as to make it unreasonable for that party to be permitted to call that expert, then of course it is open to the Tribunal to refuse to allow that evidence; and if a Tribunal properly concludes that the opposing party has no real basis on which to seek to challenge the evidence of the party which bears the burden of proof, then again it is open to the Tribunal to refuse such permission. That however was not the case here.
It seems that the Chairman took the view that MDDC had behaved unreasonably in seeking to obtain permission from an expert witness at the stage at which proceedings had reached when before her.
That criticism was unjustified as the chronology showed.
At the CMD which followed 2 weeks after Dr Lynch’s report, MDDC were wholly entitled and acted in accordance with good practice in seeking directions so as to ask questions of Dr Lynch. There was no suggestion that MDDC pursued questions to Dr Lynch as an alternative to calling their own expert. If that had been the case, there would have been no reason to have adjourned the CMD; it must inescapably have been in the minds of all concerned at that hearing that, if the answers to the questions were satisfactory to MDDC, no further issue as to medical evidence might arise but that, if those answers were not satisfactory, MDDC would or at least might wish to seek to adduce their own expert evidence. Were that not so … would not adjourned the CMD but instead would have fixed a date for a substantive hearing. As it turned out, the answers to the questions did not satisfy MDDC; and MDDC without delay re-listed the CMD in order to seek a direction for expert evidence.
The judge found that no reasonable Tribunal could take the view that MDDC had behaved unreasonably in delaying seeking their own expert until after the answers to the questions had been considered.
In her reasons the Chairman stated that MDDC’s case did not involve any attack on the legitimacy of Dr Lynch’s approach or his professional qualifications or ability and did not suggest any irregularity in the way in which he had been instructed.
However, it is not necessary for a party who wishes to dispute the conclusions of an expert and to do so by calling an expert of his own to demonstrate that his opponent’s expert has adopted an illegitimate approach, has insufficient qualifications or ability or has been irregularly instructed. He may do so by calling an expert who, reaches an alternative conclusion. The Tribunal then has to choose between the two expert opinions. There is no criticism properly to be made of a party who wishes to dispute the expert evidence of the other party in that way.
In the factual context in which the issue of psychiatric evidence arose, MDDC suspected malingering and, as they were entitled to do, did not accept Dr Lynch’s conclusions. There was no history of mental illness; and Dr Lynch’s opinions could fairly be said to be open to dispute.The answers given by Dr Lynch disclose an apparent change of mind as to the onset of depressive symptoms – from April 2005 to November 2004 – and are lengthy and complex and might be said not altogether to answer all the questions posed. Dr Lynch accepted that there might be different views as to the aetiology of Ms Stevenson’s experience of back pain and her psychological symptoms.
It could not in these circumstances be said that there was no basis for a challenge to Ms Stevenson’s assertion that she suffered from a disability arising from mental impairment, which challenge did not depend upon the lines of attack referred to by the Chairman in her reasons.
In her reasons the Chairman based her decision on whether it was necessary to allow MDDC to have the opportunity to challenge Dr Lynch; earlier she said that she had been guided by CPR 35.1; in her reasons she referred to “necessity”. Necessity was not the appropriate test. The judge rejected the views of the Chairman on the issue of current and future delay as being primarily the responsibility of MDDC.
For the above reasons the appeal was allowed and the court made directions itself on the basis that each party considered it was in as good a position to do so as the tribunal. Not surprisingly it granted directions permitting the calling of an expert who would in essence provide rebuttal evidence.
The Decision
The proceedings consist of a claim presented to the Employment Tribunal on 30th November 2005 by Ms Stevenson against her employers, MDDC, in which she complains of unfair dismissal, disability discrimination and failure, in breach of contract, to pay medical expenses which she has incurred. The only disability referred to in the claim form was “a back injury”.
MDDC disputed that Ms Stevenson was disabled and that the dismissal was unfair or discriminatory. Their case is that Ms Stevenson had been off work for ill health from May 2004, that by July 2005 she still appeared to be unable to work in any capacity and that she had been fairly dismissed for incapability.
In March 2006 the Tribunal, at a Case Management Discussion (“CMD”) made a number of directions including that: the case be listed for a full hearing of all issues, the parties would jointly instruct a medical expert and if a joint expert could not be agreed the Tribunal would give further consideration to the medical evidence. A hearing date was fixed.
The parties jointly instructed a consultant neurologist, Dr Gibson. He did not see Ms Stevenson until 11th July; no reasons for that delay have been put before me. His report is dated 2nd August. He concluded that since a fall in May 2004, Ms Stevenson had been functionally incapacitated but that her continuing symptoms were not organic and were probably psychologically. He made reference to a chronic depressive state. The hearing date had to be re-fixed, for 14 November; this delay reflected no blame on MDDC.
On 28th September 2006 Ms Stevenson’s solicitors wrote to MDDC putting forward, for the first time, chronic depression as Ms Stevenson’s disability and saying:
“It seems to us that more medical evidence on this aspect of our client’s condition is required in order to fulfil the overriding objective of the Tribunal proceedings. We are now seeking to jointly instruct a consultant psychiatrist in order to secure the relevant information for the Tribunal. It is a matter for you as to whether or not you wish to jointly instruct such an expert and share the costs or whether you will seek to rely on an expert whom we shall otherwise instruct on the Claimant’s behalf.”
That letter was clearly an invitation to MDDC to agree the joint instruction of a joint psychiatrist. It gave an indication that, if separate experts were to be relied upon, a costs order might be sought. MDDC’s solicitor understood from that letter that it was accepted on behalf of Ms Stevenson that, if a joint appointment was not agreed, each party would be able to instruct its own expert. It is possible that Ms Stevenson’s solicitors were seeking, by threat of costs, to persuade MDDC to agree a joint instruction; but they did not shut the door on MDDC instructing its own expert.
At that stage there had been no attempt to amend the claim form. The hearing was just six weeks away. MDDC replied by return saying that Ms Stevenson’s case was that her disability consisted of a back injury, which case was unsupported by medical evidence. They accordingly declined to agree a joint psychiatric report.
Ms Stevenson’s solicitors did not apply to the Tribunal for an order that there should be a joint appointment or, at that stage, for leave to amend the claim form. Instead they obtained a psychiatric report from Dr Lynch, dated 12th October 2006. His report refers to complex matters of causation and the interrelationship between symptoms of pain and other matters and psychiatric illness. His general conclusion was as follows:
“I would therefore support based on recent findings and available information, a diagnosis of depressive episode (single episode) of mild to moderate severity with marked anxiety features. I suspect that this is fluctuated in its intensity (sic) and severity and maybe affected by stress and Ms Stevenson’s experience of pain and physical discomfort.”
Ms Stevenson’s solicitors then, with less than a month to go before the hearing, applied for leave to amend her claim by adding depression as a disability.
MDDC opposed the application on the basis that it was made too late. As a result there was a further CMD on 1st November 2006, on that occasion before a different Chairman. He gave leave to Ms Stevenson to amend the claim, as sought. He further ordered that the hearing date be vacated; he did not fix a new date but adjourned the CMD for 4 weeks, to be resumed on a day to be notified.
The Decision of the Chairman of the Employment Tribunal which was later appealed to the Employment Appeal Tribunal (“the EAT”)
“(1) As a matter of case management expert evidence should be limited to that which is reasonably required to resolve an issue. That is an approach supported by the CPR. Ultimately I was not satisfied that any further expert evidence was reasonably required to determine the issue of whether or not in relation o impairment the respondent was or was not a disabled person under the DDA.
(2) The respondent bears the burden of proving that she is disabled in relation to mental impairment. It is therefore for the respondent to bring forward the relevant evidence to discharge that burden.
(3) The respondent had produced the report of the expert that she had instructed and upon whose report she wished to rely in discharging that burden. The appellant had made no suggestion that there was any lack of legitimacy in Dr Lynch’s approach, professional qualifications or ability to have prepared such a report nor was there any suggestion from the appellant that there was any irregularity in the way in which he had been instructed to prepare his report by the respondent’s representative. Therefore on its face Dr Lynch’s report appeared to be an entirely valid professional opinion upon which the respondent was entitled to rely in discharging the burden of proving that she was disabled.
(4) The appellant had rejected an early opportunity offered to it by the respondent to jointly instruct an expert on the question of mental impairment and although I accept that this opportunity was offered before the respondent was given leave to amend her claim to include one of mental impairment I considered it relevant that the appellant did not seek to raise the issue of wanting to instruct its own expert until a late stage following the receipt of Dr Lynch’s report and the addendum to it consequent upon the appellant’s written questions. It was my judgment that to accede to the appellant’s request to now instruct another expert would necessarily create delay. I could not identify any reason to create that delay.
(5) The appellant, had been given an opportunity of asking questions of the. expert following the Case Management Discussion on the 1st November. That is an approach which is consistent with the CPR.
(6) I was satisfied that the appellant’s request to instruct a further expert was simply as a consequence of it wanting to have an opportunity to find another expert who may hold a different professional view to that of Dr Lynch. This is supported in their letter to the tribunal of the 24 January “I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter.” However the appellant provided no basis upon which it should be given an opportunity to find such another expert as no argument was advanced to call into question the legitimacy of the professional view expressed by Dr Lynch. I accepted that it is likely to be possible to find an expert in any field who might disagree with a view expressed by a different expert. That however did not create a situation in which there was any necessity in all of the circumstances of this case to allow the appellant that opportunity.
(7) I also took into account the overriding objective of dealing with matters expeditiously and fairly. I was conscious of the fact that this claim was now relatively old. It had been presented in November 2005. It is undesirable to allow cases to not be brought on for hearing expeditiously although I accept there are often reasons where matters need to be delayed. I saw not reasons here for any further delay. I could discern no unfairness to the appellant for the reasons I already stated. The right opportunities had been offered to the appellant to play an appropriate role in the commissioning of the expert evidence and it was my judgment that acceding to the appellant’s request to nonetheless go on now to instruct a further expert would create a delay that was not necessary.
(8) It seemed unlikely to me that it was indicated to the appellant on the 1st November 2006 that as is stated by them in their Notice of Appeal they were’ given permission to instruct their own expert if necessary after Dr Lynch had answered questions put to him by the appellant. I formed this view from the Chairman’s notes which comprehensively record a discussion on all matters that are reflected in the Case Management Order issued by him and further record the reason for the adjournment being to allow the appellant an opportunity to ask questions of Dr Lynch. They make no reference to leave being given to the appellant to thereafter instruct a further expert. Further the respondent’s solicitor confirmed to me that he had no recollection of anything more than that the adjournment would be given to allow the appellant an opportunity to ask questions of Dr Lynch. However in this regard I can only rely upon the note and the respondent’s solicitor’s recollection as I was myself not present at that Case Management Discussion.”
The Reasoning and Decision on an Appeal against the above Decision made by the Employment Appeal Tribunal
The Chairman of the Employment Tribunal referred to the overriding objective at only one point in her reasons, in the context of delay; but the principal aim is that cases should be dealt with justly; and that includes, so far as is practicable, that the parties should be on an equal footing.
MDDC had been invited to agree to join to the joint instruction of a psychiatric expert at a time when Ms Stevenson’s claim had not been put forward on the basis of mental impairment; no application had been made to amend the claim form or for an order for a joint report before Dr Lynch was instructed; and, by the time an application to amend was made,
Ms Stevenson already had her own psychiatric expert (Dr Lynch) on who she wished to rely.
MDDC were not obliged to accept Dr Lynch’s report and were entitled to take reasonable steps to challenge and dispute his conclusions. It was not unreasonable for MDDC to seek by medical evidence to persuade the Tribunal to the view that Dr Lynch was mistaken and that there was no disability arising from mental impairment.
Only by allowing MDDC to seek to adduce such evidence to challenge that of Dr Lynch could the Tribunal comply with the overriding objective of dealing with the case justly and ensuring that the parties were on an equal footing.
Unless MDDC had conducted the litigation in some way which rendered it unreasonable for them to seek to dispute Dr Lynch’s evidence or if there were no basis on which Dr Lynch’s evidence could sensibly be disputed, it could not be just to deprive them of the opportunity to do so.
The Chairman failed to take into account the Overriding Objective’s emphasis on dealing with the case justly and even-handedly. The fact that Ms Stevenson had that burden of proof and therefore had to adduce relevant evidence to discharge it is not of itself a relevant reason for declining to permit the opposing party to call expert evidence in order to dispute the expert evidence by which the Claimant seeks to discharge that burden.
If a Tribunal concludes that a party has so conducted itself in relation to the deployment of its own medical expert as to make it unreasonable for that party to be permitted to call that expert, then of course it is open to the Tribunal to refuse to allow that evidence; and if a Tribunal properly concludes that the opposing party has no real basis on which to seek to challenge the evidence of the party which bears the burden of proof, then again it is open to the Tribunal to refuse such permission. That however was not the case here.
It seems that the Chairman took the view that MDDC had behaved unreasonably in seeking to obtain permission from an expert witness at the stage at which proceedings had reached when before her.
That criticism was unjustified as the chronology showed.
At the CMD which followed 2 weeks after Dr Lynch’s report, MDDC were wholly entitled and acted in accordance with good practice in seeking directions so as to ask questions of Dr Lynch. There was no suggestion that MDDC pursued questions to Dr Lynch as an alternative to calling their own expert. If that had been the case, there would have been no reason to have adjourned the CMD; it must inescapably have been in the minds of all concerned at that hearing that, if the answers to the questions were satisfactory to MDDC, no further issue as to medical evidence might arise but that, if those answers were not satisfactory, MDDC would or at least might wish to seek to adduce their own expert evidence. Were that not so … would not adjourned the CMD but instead would have fixed a date for a substantive hearing. As it turned out, the answers to the questions did not satisfy MDDC; and MDDC without delay re-listed the CMD in order to seek a direction for expert evidence.
The judge found that no reasonable Tribunal could take the view that MDDC had behaved unreasonably in delaying seeking their own expert until after the answers to the questions had been considered.
In her reasons the Chairman stated that MDDC’s case did not involve any attack on the legitimacy of Dr Lynch’s approach or his professional qualifications or ability and did not suggest any irregularity in the way in which he had been instructed.
However, it is not necessary for a party who wishes to dispute the conclusions of an expert and to do so by calling an expert of his own to demonstrate that his opponent’s expert has adopted an illegitimate approach, has insufficient qualifications or ability or has been irregularly instructed. He may do so by calling an expert who, reaches an alternative conclusion. The Tribunal then has to choose between the two expert opinions. There is no criticism properly to be made of a party who wishes to dispute the expert evidence of the other party in that way.
In the factual context in which the issue of psychiatric evidence arose, MDDC suspected malingering and, as they were entitled to do, did not accept Dr Lynch’s conclusions. There was no history of mental illness; and Dr Lynch’s opinions could fairly be said to be open to dispute.The answers given by Dr Lynch disclose an apparent change of mind as to the onset of depressive symptoms – from April 2005 to November 2004 – and are lengthy and complex and might be said not altogether to answer all the questions posed. Dr Lynch accepted that there might be different views as to the aetiology of Ms Stevenson’s experience of back pain and her psychological symptoms.
It could not in these circumstances be said that there was no basis for a challenge to Ms Stevenson’s assertion that she suffered from a disability arising from mental impairment, which challenge did not depend upon the lines of attack referred to by the Chairman in her reasons.
In her reasons the Chairman based her decision on whether it was necessary to allow MDDC to have the opportunity to challenge Dr Lynch; earlier she said that she had been guided by CPR 35.1; in her reasons she referred to “necessity”. Necessity was not the appropriate test. The judge rejected the views of the Chairman on the issue of current and future delay as being primarily the responsibility of MDDC.
For the above reasons the appeal was allowed and the court made directions itself on the basis that each party considered it was in as good a position to do so as the tribunal. Not surprisingly it granted directions permitting the calling of an expert who would in essence provide rebuttal evidence.
Comment
The court or tribunal has to be fair and even handed. The Overriding Objective includes dealing with a case justly and putting parties on an equal footing and is not limited to expedition and the avoidance of delay. It is plain that the Chairman of the Employment Tribunal had formed a slanted impression of one party’s conduct which impression did not correspond to reality. This case reinforces the importance of allowing a party who has not committed undue delay to instruct their own expert where expert evidence is reasonably required and the other side has been permitted to instruct an expert. To decide otherwise would be to give one party an unfair advantage and would be to prejudice the other party. The case is also important in relation to some of the judicial comments by the EAT Chairman (His Honour Judge Burke QC) including:
(a) The purpose of expert evidence is not limited to challenging the approach of the other side’s expert or his qualifications or experience – but may legitimately to put forward a separate and distinct expert opinion.
(b) The answers to questions by experts may be telling. The EAT was unimpressed by lengthy rambling responses which did not answer the questions posed. That coupled with a change of mind on one issue by the expert in question caused the EAT to conclude that his opinions were potentially open to challenge by another expert.
Indeed for an expert to indulge in challenging the other side’s qualifications or experience is highly dangerous. Such an approach tends to personalise matters and show the expert making such assertions as an advocate (which is fundamentally wrong for an expert). Succinct and direct answers to questions are much preferred to long rambling answers which tend to miss the point and may well be seen as an exercise in obfuscation by the expert concerned.