Khudados v Hayden & Ors

This is the renewed application by Dr Etedal Khudados (whom I shall call “the claimant”) for permission to appeal which Sedley L.J. and I directed should be heard on notice to the respondents, Professor Jacky Hayden, the North Western Deanery (“the Deanery”) and the Pennine Acute Hospitals NHS Trust (“the Trust”). The order under appeal was made by Burton J. on 28th February 2006 when he dismissed the claimant’s claim with costs.

That was a claim for injunctions requiring the Trust to withdraw its notice of dismissal and to reinstate the claimant’s employment, to reinstate her national training number and to restore her on a programme of postgraduate training in neurosurgery. She also claimed damages.

The claimant qualified as a general surgeon in 1987. She commenced employment with the Trust on 13th December 1999. She was employed as a Specialist Registrar with a view to undertaking training leading to a Certificate of Completion of Specialist Training in neurosurgery run by the Deanery, Professor Hayden being the Dean. Her employment was dependent upon her continuing to hold a national training number which had been issued to her in 1996. So long as it is held, a trainee has, subject to acceptable performance, a guarantee of a continued place on a training programme. She alleged that it was a term of her employment that the Trust would not seek to terminate that employment by reason of purported non-compliance with the terms of her training contract enshrined in the Department of Health’s Guide, commonly referred to as the Orange Book.

Unfortunately in June 2000, she was given an unfavourable Record of In-Training Assessment, the so-called RITA annual review, which she did not and would not accept and in the light of the deadlock which ensued, she was suspended from duty on full pay with effect from 16th January 2001 “pending further investigation”.

On 3rd April 2001 she commenced proceedings in the Employment Tribunal complaining of sex and race discrimination in relation, among other matters, to the manner in which her training had been conducted. Her complaints were dismissed on 9th October 2003 after a five week hearing during which she ably represented herself. She appealed but her appeal was eventually dismissed on 26th November 2004.

In October 2003 she was warned that failure to accept the RITA assessment would be treated as a fundamental breach of her training contract and her employment. She was unable through illness to attend a meeting on 28^th October when it was decided in her absence to recommend the removal of her national training number and to terminate her training contract. She failed to attend a hearing by way of an appeal from those decisions and they were confirmed on 16th January 2004. On 23rd January 2004 the Trust gave notice of termination of her contract of employment, the notice expiring on 22^nd April 2004.

A week before that notice expired, she brought her claim and on 21st April 2004. Elias J. accepted an undertaking by the Trust to extend her notice until after the trial and her usual cross-undertaking in damages. It was ordered that there be an expedited trial on the first open date after four weeks, listed for two-three days. The trial was later fixed for 14th July 2004. The remarkable feature of this case is that notwithstanding that direction for an expedited hearing, it was adjourned five times before coming into the list to be heard by Burton J. in February 2006, very nearly three years after it commenced. It is necessary to examine the reasons for those adjournments.

The first: the July 2004 trial date was vacated on the grounds of personal difficulties of the claimant’s counsel. It was subsequently re-fixed for 2nd November 2004, but the time estimate had now increased to five days.

The second: on 29th October 2004, the Friday before the trial was due to commence on Tuesday 2nd November, the claimant applied for an adjournment firstly because her new solicitors instructed a fortnight or so earlier needed additional time, and secondly because of the claimant’s ill health. She produced a medical certificate dated 28th October 2004 from Dr Sampson stating no more than this:

Roderick Evans J. adjourned the hearing to 6th December 2004 and ordered that any application to vacate should be in writing and on not less than seven days’ notice and further that the claimant should supply to the court and to the defendants a detailed medical report as to her fitness to attend the trial by 1600 hrs on 23rd November 2004. She was ordered to pay the costs thrown away.

The third: the detailed medical report from Dr Sampson was dated 17th November 2004 and was sent to the defendants’ solicitors by yet another firm of solicitors instructed by the claimant. They asked whether the defendants would be prepared to agree to an adjournment until mid-January. That request was refused and the defendants’ solicitors wrote to the claimant’s solicitors on 24 November explaining that:

That forced the claimant to apply to adjourn on the ground of her ill health and the application must have been opposed by the defendants. Eady J. granted the application on 3rd December 2004 and, significantly, ordered that the claimant had her costs of the day. He must have considered the defendants’ opposition to the adjournment was unreasonable. At least two medical reports were placed before the court.

The first was the detailed report from Dr Sampson dated 17th November 2004 in which he said:

The second was a report from Dr Tibbs, a consultant gastroenterologist, dated 1st December 2004 which read as follows:

The claimant duly attended the appointment arranged for her by the Trust. She saw Dr Andrew Thillainayagam in Harley Street and his report dated 3rd December 2004 was copied to the claimant and to Dr Sampson. It is not clear whether it was placed before Eady J. but bearing as it does the same date as the hearing, I assume it arrived too late for the hearing. Because it will be necessary later to analyse to what extent, if at all, the information given by him differs materially from that which can be gleaned from Dr Sampson’s and Dr Tibbs’s reports, it will be useful to set it now. It reads as follows:

In the event the hearing was re-listed for hearing on 11th April 2005, again with a time estimate of five days. On 4th April 2005, however, the claimant served a supplementary witness statement, 55 pages long. This should have been served by 9th June 2004. The more significant fact was that she was now making new and substantial allegations of bad faith against Professor Hayden.

The fourth: the matter was called on before Pitchers J. on Monday 11th April 2005. At the outset there was argument as to the admission of the supplementary witness statement. The judge allowed it but the inevitable consequence was that the trial could not then proceed. Directions were given to re-amend the particulars of claim and the trial was adjourned to 13th June 2005, and now with a time estimate of 25-30 days. The claimant had to pay the wasted costs.

The fifth: on 27th May 2005 the claimant applied for an adjournment for two months because her latest solicitors had come off the record despite her opposition. She said she was overwhelmed by receiving thirteen witness statements from the defendants and she contended she was unable to deal with the matter without advice. Eady J. granted the adjournment on 9th June 2005 and the trial was eventually fixed for 27th February 2006, with costs in the case.

The hearing was to start on Monday 27th February. On Thursday 23rd February Eady J. heard an application by the claimant for the hearing listed for 27th February 2006 to be adjourned for two months because:

What is significant about that application is that there was not a single word mentioned about the claimant’s ill health. In his skeleton argument counsel submitted on her behalf that:

No application has been made to appeal Eady J.’s order. Instead, as the parties left court on that Thursday, the claimant stated to the defendants’ solicitors that she would apply again for an adjournment. That evening in an email timed at 19.34 she wrote to the defendants’ solicitors saying:

Written in her hand on the copy of that letter in the court bundle are these words:

The first intimation of this came in a letter dated 24th February 2006 marked “Very urgent sent by fax and post” to the court, it is thought at about 1pm on that day. The claimant wrote:

On Sunday 26th February, Mr Paul Gilroy, then junior counsel, met with his leader Mr John Hand Q.C. to prepare for the trial the following day and to prepare for the application for the adjournment. Together they prepared a skeleton argument to deal with that application.

The case was duly called on on Monday morning 27th February and, as was to be expected, the claimant did not attend. Mr Hand put in his skeleton argument. He very fairly submitted that beside the options simply to refuse the application or to grant it there was a third middle course approved by the Court of Appeal, for use, in certain circumstances, namely:

Burton J. decided to adjourn the hearing over to the following day in order to give the claimant an opportunity to respond to the submissions contained in that skeleton argument. At 4 pm on February 27th the judge’s clerk sent an email to the claimant informing her of the adjournment until 10.30 am the following morning “when after hearing any further argument from the claimant if she so decides and from the defendants the judge will decide whether to adjourn the case or to dismiss it. A copy of the skeleton argument by the defendant opposing the adjournment was emailed to the claimant this morning. If it was not received I can send you by fax or email now a further copy but the judge wishes to be sure that the claimant has had the opportunity to see it and to make any submissions in time for tomorrow.” The claimant replied at 4.15 pm saying that the skeleton she had received was for the main hearing and asking for the skeleton argument opposing the adjournment to be sent through to her. That was duly emailed to her at 4.27 pm and acknowledged at 4.40 pm. We know from documents put in by the claimant that she was seeking some help from a medical friend to whom she emailed the skeleton argument at 17.36 and asked her friend to help her address it. Her friend responded at 10.52 with a draft reply, but adding “say this and no more unless you really feel you need to – they are winding you up and the judge will not be impressed”.

Accepting her friend’s advice, the claimant emailed the court at 1.16 on 28th February in these terms:

The judge referred to the “substantial critique of the medical position” as set out in Mr Hand’s skeleton argument and concluded:

The judge concluded:

Sir Henry Brooke refused permission to appeal on the papers before him giving these reasons:

The claimant renewed her application and counsel appeared on her behalf before Sedley L.J. and me. In requiring the matter to be heard on notice to the respondents we were troubled, not only about questions of proportionality, but also and particularly about the complaint that the report of Dr Thillainayagam, referred to in paragraph 15 above, had not been placed before the judge.

Mr Paul Epstein Q.C. and Mr Simon Dyer appeared for the claimant. Mr Epstein may be new to the case but Mr Dyer appeared on her behalf on 3rd December 2004 when the matter was before Eady J. Mr Paul Gilroy Q.C. represented the defendants. The main plank of the claimant’s submissions to us was that relevant material, namely Dr Thillainayagam’s report was not placed before the judge, the submission being that had it been, then the judge would have, or at least might have, granted at least a short adjournment to enable any deficiencies in the medical evidence to be cured. His secondary attack was directed to paragraph 30 vii and viii and the judge’s conclusion that there was no sufficient case for saying that there was anything in the claimant’s medical condition which then rendered it impossible for her to proceed with her case. He submits the judge was not entitled to reject the medical evidence before him. The prejudice to the claimant was so overwhelming that clarification should have been sought to overcome any scepticism that the judge may have entertained.

Strictly speaking, the correct order in which to approach these issues would be to start with the second because we are conducting a review of the decision of the lower court and, unless the appeal court orders otherwise, it will not receive evidence which was not before the lower court: see CPR 52.11. Ordinarily, one reviews the trial judge’s decision and if it is shown that he went wrong, the appeal is allowed without reference to any fresh evidence. If, on the other hand, that decision cannot be impugned as it stands, then the appeal court will go on to consider whether or not to admit the fresh evidence and, if it does, then to decide whether the new material compels a different result. The claimant was acting in person when she filed her notice of appeal and prepared her bundles and placed a copy of Dr Thillainayagam’s report before us. No objection has been taken by the defendants. Nor have they objected to her putting in a further medical report obtained by her after Burton J.’s judgment, namely the report of Dr Stephen Kane, a consultant physician and gastroenterologist, dated 18th March 2006. Again Mr Gilroy takes no objection, indeed he relies upon it. Since we have concentrated our efforts on looking at those reports, it is convenient to take the primary case first.

The point was taken by the claimant herself in the grounds of appeal she submitted:

As I have set out, Mr Epstein’s submission depends on two propositions: (1) that the defendant should have placed the report before the judge and (2) if the judge had had his attention drawn to it, his scepticism would have been allayed and he would or might have granted the claimant a further indulgence. As I pointed out to Mr Epstein in the course of the argument, the first proposition begs the question: was there a duty on counsel to draw this evidence to the judge’s attention? Having considered the matter over the short adjournment Mr Epstein made it emphatically clear that he was casting no aspersions on the professional integrity of counsel. He submitted that because CPR 1.3 required the parties to help the court to further the overriding objective to deal with cases justly, then in fairness Dr Thillainayagam’s report should have been before the judge.

We did not have extensive argument about counsel’s duty but the following tentative observations can be made. The Bar Code of Conduct lays down these rules:

Mr Gilroy was most concerned by the allegation that he and Mr Hand had failed to disclose material information to the court. He told us that he and Mr Hand did not know until shortly after 3rd April 2007 that we had adjourned this matter to be heard on notice with the appeal to follow. They did not see the appeal notice and skeleton argument until late in September and they did not see the transcript in which I had expressed my concern until late in October. They have since then racked their brains as to how they prepared their skeleton argument 18 months earlier. They cannot recall whether they discussed Dr Thillainayagam’s report. They certainly had no reason, still less any intention, to deceive the court. I unhesitatingly and unreservedly acquit them of deceiving or knowingly or recklessly misleading the court and it is worth repeating that Mr Epstein does not suggest otherwise: indeed he makes no complaint about their professional conduct. Mr Hand and Mr Gilroy can put this worry completely behind them.

The question is to what extent if at all a barrister who must promote and protect fearlessly and by all proper and lawful means his lay client’s best interests is bound to disclose evidence favourable to the other side. I draw the distinction between evidence favourable to the other side and law in the form of all relevant decisions and legislative provisions which may be unfavourable towards the contention which he argues. It seems to me that the better view is that a barrister would fail in his duty to his own client were he to supplement the deficiencies in his opponent’s evidence. The fact that the other side is a litigant in person cannot make any difference as to the manner in which he fulfils his duties to the client, to the other side and above all to the court. In my judgment, counsel cannot be criticised for failing to disclose the further report.

What of CPR 1.3? The language of the rule is couched in terms that “the parties are required to help the Court” and the rule is headed “Duty of the Parties”. Accepting for the purpose of the argument that there is a duty, and that the duty falls on the legal advisers as well as the litigant, it is at most a duty to the court, not to the other side. The duty is to help the court further the overriding objective. The primary duty to further the overriding objective is one imposed on the court itself. It is the court which must dispose of the cases justly. Dealing with a case justly includes, so far as is practicable:

It follows that there was no obligation on Mr Hand and Mr Gilroy to disclose this report, and this complaint falls away but in fairness to counsel I should go on to consider whether it would have made any significant difference.

Dr Thillainayagam’s report set out at [15] above is more comprehensive than those of Dr Sampson and Dr Tibbs set out at [13] and [14] above. But there is, in my judgment, nothing new in his report. If anything, Dr Tibbs is the most dramatic in speaking of the claimant “doubled over with epigastric pain” which portrays her symptoms more vividly than “epigastric pain … of a gnawing nature [which] does not radiate retrosternally or into the back, but can last several hours at a time and often wake her up in the early hours of the morning …”. Each of the reports recommends an endoscopy as an aid to further diagnosis. Each refers to her being under stress and I do not read Dr Thillainayagam’s reference to her having a “significant anxiety depression … (with) a significant amount of functional overlay in her perception of the pain” to be adding anything of great significance.

The best point that can be made for the claimant is that putting this further report before the judge would have reminded him that it was procured at the instigation of the Trust and it may, therefore, have inclined him to be more sympathetic to the possibility of requiring the claimant to submit to a further urgent examination. The claimant’s insuperable obstacles in advancing that argument are:

Although, therefore, I was troubled by this omission when hearing the renewed application for permission to appeal, I am now totally satisfied that there is no blame whatsoever on the defendants’ counsel for not drawing it to the judge’s attention, that she could have done so herself; and, in any event, it would not have led to any longer adjournment than that which was afforded her overnight.

Turning, therefore, to the grounds of appeal which attack the judge’s exercise of discretion, I begin, inevitably, by reminding myself that the decision whether or not to adjourn a case is taken as one of the general powers of case management exercised by the court having regard to the overriding objective. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task.

The judge correctly directed himself to have regard to CPR 1.1, to the interests of both parties and to the need for a fair trial. It is, nonetheless, no surprise that the claimant should complain that her rights under Article 6 of the European Convention on Human Rights had been breached. That complaint is ill-founded. Her entitlement to a fair trial means no more than that she should have a reasonable opportunity to put her case. Burton J. was assiduously fair in keeping her informed of the arguments ranged against her, ensuring she had sight of the defendants’ skeleton argument opposing her application for an adjournment and inviting her participation. She rebuffed his overtures. She cannot now complain that she was denied an effective right of access to the court. Before passing from Article 6, it is worth observing, first, that everyone is entitled to a fair hearing and that must include defendants as well as claimants. Secondly, Article 6 guarantees a hearing “within a reasonable time” and so the nature of and consequences of the delay are also relevant. Thus the judge was entitled to have regard in paragraph 30 i to this being “a very old case” in which a speedy trial had been ordered nearly two years previously.

He was also entitled - see 30 ii - to take account of the effect of allegations of bad faith hanging over the defendants for that length of time. He noted in 30 iii that this would have been the sixth hearing to be vacated. That is a matter that can be taken into account, not as a determinative factor, but as part of the background. I do not sense that the judge fell into the error of giving this undue weight. If the case had to be postponed for the nth time for good reason, then that is just hard luck If, for example, the claimant had been knocked over by a passing number 11 bus as she crossed the Strand to attend the first day of the hearing, no judge would deny the sixth or seventh adjournment.

In paragraph 30 iv the judge correctly pointed out that according to the evidence of Dr Sampson, the claimant’s condition had been affecting her for the previous fortnight and she would, therefore, have been suffering at the time she made her application to Eady J. on the previous Thursday. She could have supported her application on medical grounds but failed to do so. Burton J. was fully entitled to conclude that the severity of her condition was undermined by the very absence of mention of it before Eady J.

The judge was also fully entitled to have regard in 30 iv to the substantial inconvenience caused by an adjournment, quite apart from the very heavy cost involved. Prejudice to the defendants had been compounded by their continuing obligation to pay her salary reliant only on a cross-undertaking in damages to recover any overpayment.

Mr Epstein implicitly acknowledged the weight of the factors that go in favour of the defendants and he sensibly concentrated his attack on paragraph 30 vii and viii. He submitted that the three reasons given by the judge, namely (i) the absence of mention of any problem before Eady J., (ii) the brevity of Dr Sampson’s letter and (iii) the absence of exposition as to what happened after November and December 2004, do not justify the conclusion “that there is no sufficient case that there is anything in the claimant’s medical condition which has now rendered it impossible for her to proceed with her case.” I can understand the force of this argument. Dr Sampson’s views had been accepted in the past, indeed the challenge of them may have led to the defendants’ having to pay the costs of an earlier adjournment. We now know, though Burton J. may not have appreciated it, that the genuineness of the claimant’s suffering in 2004 was fully borne out by, if not exemplified by, the further report obtained by the defendants from Dr Thillainayagam. Why, Mr Epstein asks rhetorically, was Dr Sampson’s report not good enough on this occasion?

There are, in my judgment, several answers to that. First no judge is bound to accept any evidence, even from an expert, without testing it against other known facts. The defendants’ counsel had made plain in their skeleton argument that they did not question the genuineness of the claimant’s suffering, only its sufficiency to justify the further adjournment in all the circumstances. All Dr Sampson reported was that the claimant had been up in the night with vomiting and nausea. That had not disabled her when making her earlier application to Eady J. and the judge was entitled to be sceptical. Secondly all the doctors had recommended an endoscopy because it would have indicated just how serious this condition was. The result of that endoscopy was highly material as Dr Sampson should have appreciated and as his patient, herself a doctor, should have appreciated. Yet the court was left in the dark.

As explained at [33] above, the claimant put in our papers a copy of Dr Kane’s report given some three weeks after the hearing. Even that does not throw much light on the matter. He reveals only that a “gastroscopy in 2004 at Queen Mary’s Hospital Roehampton” [Dr Tibbs’s hospital] “showed erosive gastritis, and a quiescent duodenal ulcer.” He added:

In my judgment the judge was entitled to draw an adverse conclusion and hold that no sufficient case had been demonstrated. As Peter Gibson L.J. held in Teinaz v London Borough of Wandsworth at paragraph 21:

Because the burden of proof was on the claimant to demonstrate the seriousness of her illness and her inability to attend the hearing and to discharge the burden of presenting her case to the court, it was incumbent upon her to respond properly to the legitimate requests for further information being made by the defendants through their counsel in their skeleton argument. Some constructive response was called for. The response the court received unequivocally and defiantly refused co-operation. The defendants’ counsel had in the proper exercise of their duties drawn the judge’s attention to Teinaz and Andreou, the latter case being an example of one where the Employment Tribunal had gone to elaborate lengths to allow short adjournments to clarify the applicant’s medical condition. The judge was clearly mindful of the need to grant a short adjournment to give the claimant a fair opportunity to demonstrate the extent of her illness. He was plainly alive to the consequence of refusing her application for an adjournment, being the dismissal of her claim. To have dismissed her application there and then may well have been disproportionate. He granted her a short indulgence. He was clearly willing to consider, and to consider sympathetically, whatever material she placed before the court. Faced with her intransigence he was entitled, in my judgment, to conclude as he did that enough was enough.

Although I would grant permission to appeal, I would nonetheless dismiss this appeal.

I agree with both judgments.

I agree that this appeal should be dismissed for the reasons given by my Lord, Ward LJ, with which I entirely agree. I have, however, found this a worrying case and so I would like to express my essential reasons in a few paragraphs of my own.

I consider the case first on the basis of the facts as known to Burton J – i.e. without regard to the report of Dr Thillainayagam dated 3 December 2004 of which the judge was unaware.

On Monday 24 February 2006, the first day of the trial, the judge was faced with a letter from the claimant’s GP which included his professional opinion that “I believe she is medically unfit to attend court at present…” and suggested a postponement of four weeks “to allow for her recovery.” My anxiety derives from the fact that within two days of seeing that letter, the terms of which are clear, the judge had dismissed for all time the claimant’s substantial claim and also made an order for very considerable costs against her. At first sight, that outcome appears unjust.

Faced with the doctor’s letter (of which the genuineness was not challenged), the judge was bound to grant some period of adjournment. The claimant was acting in person; and if a person is indeed ill and unfit to attend court, then he is ill no matter how many times the case has previously been adjourned. I agree with my Lord’s analogy of the claimant being knocked over by a bus on her way to court. The judge did grant an adjournment until the next day.

The case had been listed with a time estimate of several weeks. On the face of it, therefore, there was ample time available in which more fully to investigate the true state of the claimant’s health and the prognosis and timetable for recovery. Was it sufficient and was it fair only to adjourn overnight? In my view, in the first instance it was. The e-mail from the judge’s clerk, which my Lord has recorded at para [26] above, clearly contemplated the possibility of a further period of adjournment. The skeleton argument of Mr Hand and Mr Gilroy clearly “proffered the suggestion” of a further, relatively short, adjournment for a further examination of the claimant. It seems virtually certain that if the claimant had responded at all constructively or positively to that suggestion, then a further adjournment would indeed have been granted and arrangements made for such an examination, seeking answers to the questions suggested by Mr Hand and Mr Gilroy.

This suggestion was clearly seen, understood and considered by the claimant. Her own e-mail to the court sent at 01.16 on 28 February expressly refers to it and states her reaction to it in the uncompromising language which my Lord has quoted at para [27]. She effectively rejected the proffered way forward. I have anxiously considered whether or not the judge ought, nevertheless, to have made an order appointing a suitable expert to examine the claimant and report within, say, 7 or 10 days; leaving a final onus clearly on the claimant to decide whether to undergo such an examination or not. I feel myself that that might have been the preferable course. But the judge was certainly entitled to conclude that the claimant’s attitude in her e-mail “…would render the adoption of the Andreou route impossible or at best problematic.”

The judge was not only entitled but bound to take into account that there had been no mention at all of any medical problem when the claimant had applied for another adjournment before Eady J the previous Thursday, and yet Dr Sampson’s letter clearly referred to “…a flare up in her symptoms of abdominal pain for the past two weeks…” Even as she left the court room on the Thursday, the claimant had intimated that she would apply again for an adjournment; and she sent an e-mail to that effect later the same evening, which my Lord has quoted at para [21] above. Still there was no mention at all of ill health.

In all the circumstances the judge was entitled, in my view, to conclude that this was a contrived and desperate last minute attempt to obtain an adjournment when all other arguments had failed; and indeed that enough was enough.

The judge fully and correctly directed himself as to the law, as described in the authorities of this court of Teinaz and Andreou. He fully considered all the relevant factors. His decision was robust and other judges might well have granted at least some further period of adjournment to give the claimant an opportunity to undergo further medical examination. But the judge exercised his discretion in a way that was open to him and cannot be said to have been plainly wrong.

I turn briefly to consider whether the appeal should nevertheless be allowed on the ground that the report of Dr Thillainayagam had not been shown to the judge. I agree with the careful analysis and conclusion of my Lord in paras [36] to [40] above that Mr Hand and Mr Gilroy were not in breach of any duty in not disclosing the report to the judge. But in any event the claimant had ample opportunity herself to draw it to his attention in her overnight e-mail, and she did not do so. Even if the judge had known about it, I cannot see that it would have made any difference. It was not in dispute that she had previously suffered abdominal illness. The fact that she had previously agreed to be examined by the defendants’ expert merely puts in sharp relief her refusal to do so again.

Thus even in the light of all the facts as they are now known to us, I agree that the appeal should be dismissed.