Appeal No. EAT/0668/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 July 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS T A MARSLAND
MR J R RIVERS

THE DEPARTMENT OF HEALTH	APPELLANT

MRS S BIRD	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	DANIEL TATTON-BROWN
Instructed By:
Ms S Robinson
Office of Solicitor
Department of Health
Department of Social Security
New Court
48 Carey Street
London WC2A 2LS	
For the Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE RESPONDENT	

JUSTICE LINDSAY

1.	We have before us an Interlocutory appeal in the matter Mrs S Bird v The Department of Health.  The Appellant is the Department of Health; the appeal is concerned with an order as to a report of a medical examination of Mrs Bird, the Applicant below.  The examination has not yet taken place.  The Department of Health appears before us by Mr Tatton-Brown.  Mrs Bird does not attend, is not represented and her solicitors have indicated she does not oppose the appeal.

2.	On 25 January of this year Mrs Bird lodged an IT1 against the Department of Health, her employer.  She claimed discrimination on the grounds of disability.  She claimed to have been suffering from work-related stress and depression.  She said that no adjustments had been made by the employer despite repeated requests or attempts, but she continued in the employment.

3.	On 20 February of this year the Department of Health put in its IT3.  It accepted that there had been periods of sickness on Mrs Bird’s part, attributable to mental illness, but steps, said the Department, had been taken to ameliorate her position and it was certainly not admitted that she was disabled within the meaning of the Act.  She did not, in the Department’s view, suffer from work-related stress.  Her impairment, if there was one, was not, said the Department, long term and there was no Section 6 duty imposed upon the Department and, if there was, it was in any event performed.  That was the nature of the contest that looked as if it was limbering up.

4.	On 13 March the Department of Health asked for some further and better particulars and on 26 April there was a hearing for directions and generally to deal with the procedure to be followed in the case.  It was before the Chairman alone, Mr A J Simpson, at Leeds; the decision was sent to the parties on 1 May of this year.

5.	It made provision for witness statements, for further and better particulars, for the listing of the case and for how documents were to be handled.  All that gives rise to no difficulty, or at any rate, none yet.  The only aspect in issue is as to disclosure and inspection of a medical report.

6.	On the Applicant’s side, Mrs Bird’s side, she had already obtained a report from her general practitioner.  She was directed to disclose it to the Department of Health in 7 days.  The order provided that, if upon seeing it, the Department of Health was minded to concede disability, it was to do so forthwith.  That part of the order has given rise to no difficulty.

7.	As for the material provision of the order, the passage on the subject of the appeal, it begins with this provision:

2 c)	“If required, the Applicant will, upon reasonable notice, make herself available for examination by the Respondent’s medical expert.  She will also sign such consents as may be required for the release of medical records.  The letter of instruction to the expert should ask the expert to address the following issues in the report:”

And then there are set out at letters A. to H. (in some cases with further sub-division, for example D. is divided into D. i. to D. viii) a whole series of subjects which are directed by the Tribunal to be addressed by the expert and which plainly are relevant to the question of whether or not Mrs Bird was disabled within the meaning of the Disability Discrimination Act 1995.  It is quite plain that a report on those subjects would assist the Tribunal to determine whether or not she was.

8.	Then came at 2. d) the provision which is most in dispute today.  It says this:

2 d)	“A copy of the report….”

And that is the report referred to in 2. c),

“….accompanied by a copy of the letter of instruction, must be filed with the Tribunal and served on the Applicant not later than 14 days after receipt.  Within 14 days of receipt the report, the Respondent will confirm whether it still maintains that the Applicant is not disabled as defined by the Act.

e)	If at any time, the Respondent accepts that the Applicant is disabled as defined by the Act, the Respondent must forthwith notify the Tribunal and the Applicant.”

9.	Taking the procedural steps to bring them up to date, on 2 May Mrs Bird’s Trade Union supplied further and better particulars (we do not need to go into them).  On 30 May the Department of Health wrote to the Employment Tribunal asking it to confirm the Department’s view that it was only required to disclose the report obtained under 2. c) if disability remained an issue and if the Department of Health intended to rely upon the report.

10.	No immediate answer was received and so on 5 June the Department of Health sent a reminder and then on 6 June the Employment Tribunal answered, very shortly.  Their letter said this: it acknowledged the letter of 30 May, it said it was referred to Mr Simpson, the Chairman, who had given directions as follows:

“Respondent’s representative misunderstood the directions.  The report must be disclosed in any event.  The question of legal privilege does not apply.”

11.	On 11 June the Department of Health put that date to a Notice of Appeal.  The Notice of Appeal asserts that the Tribunal misdirected itself in law; such a document as the medical report that was in issue would, it said, attract legal professional privilege and could not be compulsorily disclosed.  It was, of course, accepted that if the Department chose to rely on it, it would necessarily be inspected and disclosed but, urged the Department, it could not be compulsorily disclosed and inspected if it were not relied on by the Department.  The order was, in other words, said the Department of Health, perverse.

12.	On 11 June the Department of Health wrote again to the Tribunal.  They said this:

“In our respectful submission, in these circumstances any expert’s report obtained by this Office on behalf of the Respondent will have been prepared for the purpose of obtaining or collecting evidence to be used in litigation before this Tribunal and will, therefore, be caught by the established principles of legal privilege.

Privilege cannot be derogated from by the requirements of the Civil Procedure Rules 1998 to which the Tribunal has regard in making orders for inspection.  The Tribunal is respectfully directed to the case of General Mediterranean Holdings v Patel [2000] 1 WLR 272 in relation to the disclosure and the requirements of CPR 48.7(3).

Furthermore, having regard to the Civil Procedure Rules 1998, we respectfully submit that the Tribunal has no power to compel the service and filing of an expert’s report in this instance.  In this regard, we respectfully refer the Tribunal to Section 31.3 (1) (b) of the Civil Procedure Rules 1998 which reads:

A party to whom a document has been disclosed [meaning a document that is stated to exist] has a right to inspect that document except where – 

b)	The party disclosing that document has a right or a duty to withhold inspection of it [our emphasis]

I.e. under the ordinary rules of legal privilege.”

13.	On 13 June the Department of Health added some further submissions in the same general direction and on 13 June, the same day, the Tribunal tersely added this:

“I have nothing to add to the earlier reply except to say that the Civil Procedure Rules do not apply to the Employment Tribunal.  We have our own Rules of Procedures.

14.	On 15 June the Department’s Notice of Appeal, which had been dated 11 June, was received by the Employment Appeal Tribunal.  On 22 June the Department of Health made some further observations to the Employment Tribunal saying this:

“We note in particular that the Tribunal has declined to explain its reasoning.

However, we respectfully refer the Tribunal to Rule 4(1) of the 1993 Regulations that specifically states that a Tribunal may grant such inspection of documents as might be granted by a County Court.

It is our respectful contention that the Tribunal has no basis for ordering filing and service in any event of any medical opinion received by the Respondent.

In the interests of resolving matters, might we respectfully invite the Tribunal issues further Directions under Rule 16 so as to insert the words:

“If relied upon in relation to the preliminary issue of whether or not the Applicant is disabled as defined by the Disability Discrimination Act 1995,”

at the beginning of paragraph 2 d) of the Order.”

They also asked for the matter to be referred to the Regional Chairman.

15.	The final answer from the Employment Tribunal was given on 27 June:

“The directions I gave on 26 April 2001, remain in force as given.”

On 12 July Mrs Bird’s solicitors indicated to the Employment Appeal Tribunal that they would not be attending today, nor would be opposing the appeal.
16.	Mr Tatton-Brown’s argument on behalf of the Department of Health relies heavily, and very naturally, on the principles underlying legal professional privilege.  He asserts, absolutely correctly, its crucial importance, see General Mediterranean Holdings v Patel [1999] 3 All England 673, 688(d).  He says, rightly, that it applies to Tribunals as it does in civil courts generally, see Independent Research Services v Caterall [1993] ICR 1 EAT 3(a).

17.	If (and this is the crucial question) the report that eventually emerges from paragraph 2 c) of the Employment Tribunal’s directions is indeed one that attracts legal privilege, we see no answer to the argument that the Tribunal was wrong in treating it as they did.  But the question is, is such a report privileged?

18.	The Civil Procedure Rules 1998 introduced or extended a rather different regime as to experts’ reports; Part 35 makes provisions quite differently to Part 31.  A distinction, it seems to us, needs to be drawn between an advisory expert, whom a party consults privately, without requiring any assistance from the court, and who may or may not be intended to give evidence and whose existence may even be unknown to the other side, on the one hand, and an expert Tribunal witness who is instructed as such during proceedings and whose proposed role is known to the other side from the start.  The 2001 edition of the White Book at Page 669 indicates some distinctions between the two types of expert; see also CPR 35.2.  Here – and we regard this as a crucial difference between this case and others – the Tribunal’s assistance was invoked from the start.  The order made by the Tribunal is that, if the Department of Health so requires, then the Applicant will make herself available for examination by the Department of Health’s medical expert and will sign the release of her medical records.  Moreover, the Tribunal itself, in its order, specifies the very questions which the expert is to address.

19.	Plainly there can be no doubt but that the Applicant will know, and is intended to know, the identity of the Department of Health expert by whom she is, if required, to be examined.  Of course, she may wish to know whether it is a man or a woman doctor, what qualifications he or she has, where he or she practices and so on.  The specific identity of the Department of Health’s expert is undoubtedly contemplated as being known to the Applicant before she is examined.

20.	In these circumstances, it seems to us, the nature of the order as to the expert and as to his or her report is such that the report will be a CPR 35 expert’s report.  It is not a case where the report is that of a private advisory expert.  What follows from that?  The duty of the expert will be to the Tribunal, not simply to the payor; see CPR.35.3.  His report has to be in writing – 35.5 –  and the report is to be addressed to the Tribunal –  see Practice Direction in the White Book at Page 690, Paragraph 1.1.

21.	The whole approach of the CPR is for ‘cards on the table’, as it is said.  The Department of Health has seen or will see the Applicant’s general practitioner’s report.  Similarly the Department of Health is to be required to put its cards on the table.  It may be said that this puts the Applicant in a highly favoured position.  She may have consulted any number of experts and may have chosen the only one in her favour – namely that of her GP – for disclosure.  She can keep all the others secret.  She, of course, did not need the court’s intervention in order to get experts’ reports on her side as she could consent to her own examination and consent to the release of her own medical records.

22.	But that inequality between the parties seems to us capable of being overcome by requiring the Applicant, at the point of receiving a copy of the Respondent’s report from the Respondent, to disclose, on oath and by way of exchange, every communication, if any, which she shall have received (by herself or by her Union or by her other representatives or by her own medical advisers) within a period beginning, say, on 25 July 2000, a period beginning 6 months before the launch of her IT1, and running down to the date of receipt from the Department of Health of the copy of the Department of Health’s report, being a communication which is or includes a report on all or any of the subjects at paragraph 2. c), A-H in the Tribunal’s order sent to the parties on 1 May.  The object of that would be that, if the Applicant has had reports that she wishes not to be inspected by the Department, then she is, in effect, put to an election.  If she wishes to see the Department of Health doctor’s report she will have to permit inspection of her own.  If, however, standing on privilege or on any other grounds, she chooses not to reveal earlier or other reports that she has received, then she will not see the Department of Health doctor’s report either.

23.	All that is to be done on oath.  If she has no such other reports she is to say so on oath.  If she does have some, then she must produce copies, again on oath.  On this basis we are content to leave paragraph 2. d) of the order as it is but we would add some refinements to it.  We would add that the Department of Health’s report is to be addressed to the Employment Tribunal, as well as to the Department of Health.  We would add, too, that the Employment Tribunal is to keep its own copy confidential unless and until it learns that the Department of Health has given a copy to the Applicant’s advisers and we would add that to the Employment Tribunal’s order then is to be added a paragraph to embody the obligations on the Applicant which we have just described in terms of disclosure and inspection by her.

24.	We have proceeded on the basis, as will have been apparent, that we take the view that this kind of report is not subject to legal privilege.  It was ordered by the Tribunal but, (although we cannot be sure of this) it may have depended upon a willingness of the Applicant below, Mrs Bird, to submit herself for examination and also to release her medical records that was related to an expectation that she would see the resultant report.  It is a report the subject matter of which has been specifically set out by the Tribunal itself.

25.	We have asked Mr Tatton-Brown whether he has been able to find any authority in which a report having similar characteristics, namely depending upon an order of court and having its subject matters specifically directed by the court, has nonetheless been capable of being suppressed by a party on the grounds of legal privilege.  He has not been able to find such authority and accordingly we have taken the view that we have taken.

26.	We have found nothing ourselves on all fours.  There is one case that we found and drew to the attention of Counsel, a case called Kapadia v The London Borough of Lambeth in the Court of Appeal on 9 June 2000.  The transcript we have is not exactly confidence-building in the sense that its fly sheet says it is a case before Lord Justice Pill, Lord Justice Schiemann and Sir Murray Stuart-Smith yet the transcript itself has not Sir Murray Stuart-Smith but Lord Justice Robert Walker.  Moreover, whereas every judgement given is consistent only with the appeal being dismissed, the footnote says “appeal allowed”.  Nonetheless, it may provide some guidance, although one is bound to accept that it is a very different case.

27.	There the Applicant had received a number of medical reports and the Respondent employer sought to get a medical expert’s report for itself.  The Respondent instructed a doctor and the Claimant (without, it seems, requiring any order of the court, but with the consent of her solicitors) agreed to be examined by the Respondent’s expert doctor and the Respondent’s expert doctor then drew up a report.

28.	The doctor thus instructed by the Respondent then declined to release the report to the Respondent without his first getting the Applicant’s consent to doing so, taking the view, as it would seem, that the proper medical, ethical and professional position was that the report could not be disclosed to the Respondent, who had paid for it, without the consent of the Applicant, the patient who had been examined.  The Applicant, it seems, was not prepared to consent to the Respondents having the report without his first having seen it and so, in a sense, the Applicant was given a veto as to inspection of the report.

29.	So it is plainly a different case from ours, but in it Lord Justice Pill (no doubt, as Mr Tatton-Brown argues, obiter) at the end says this:

34.	“On the facts the court knows, the report should, in my judgement, have been disclosed by the doctor to the employers.  No further consent was required from the Claimant.  By consenting to being examined on behalf of the employers the Claimant was consenting to the disclosure to the employers of a report resulting from that examination.  A practice under which a person has agreed to be examined in circumstances such as these, but then claims a veto upon disclosure of the report to those who obtained it is not, in my view, a good practice.  Indeed it is an impediment to the fair and expeditious conduct of litigation.

35.	In my judgement, on the information I have, good practice in this case required the disclosure of the report to the party which, with the written consent of the plaintiff and the consent of those advising him, had obtained the report.”

There the report was open to the Applicant who had consented to being examined but was not disclosed to the Respondent who had commissioned it.

30.	But that notion of good practice, looking towards the ‘fair and expeditious conduct of litigation’ would seem to us to be equally applicable to the case where a report is open to the Respondent who commissioned it but is not disclosed to the Applicant who by order was to be examined and who would thus enable the report to be made.

31.	Indeed, if the report was not capable of inspection by the Applicant, questions would arise as to whether Mrs Bird, as it would be in this case, would be entitled to seek a witness order against the doctor, requiring his attendance at the hearing to explain what was in the report which the Department of Health had chosen not to rely upon and had failed to disclose.  There is no property in a witness.

32.	Moreover, although Mr Tatton-Brown, not having been instructed below, was unable to help us on this, there is at least a possibility that it was by consenting to have herself examined and by her consenting to releasing medical records, that Mrs Bird had facilitated the order by not opposing it and it could be, as we mentioned, she had done so on the footing that she would be getting a copy of the consequential report.  That cannot be explored because the order is not actually expressed as a matter of consent and, in any case, as we mentioned, the facts of the surrounding circumstances are unknown and Mrs Bird is not represented today.

33.	The only possible unfairness that we see attendant upon our proposal, namely that Mrs Bird might have been able to hide corresponding reports, is, in our view, met by the provision that we have made for her not getting the report from the Respondent’s doctor unless she comes up with disclosure and inspection, on oath of, or on oath discloses that there are no, other reports on her side in the manner that we have mentioned.

34.	It is, as it seems to us, an important and yet novel situation.  We have indicated our view on the matter.  We dismiss the appeal.  We make the additions to and qualifications of the Tribunal’s order as earlier described and it will be prudent if the associate were to have a word with me when coming to frame the order in order to encapsulate the provisions that we earlier mentioned as to quite what is expected of Mrs Bird if she is to obtain a copy of the Department of Health’s report.  Subject to that, we dismiss the appeal for the reasons we have given.