Khudados v Hayden & Ors

This is an application for permission to appeal the orders made by Burton J on 28 February 2007 when he refused an application made by the claimant, who is the applicant today, for the adjournment of the trial of her claim, which was listed before him for 25 days. Having refused the application for an adjournment, the judge then dismissed her claim with costs, with the consequence that there be an enquiry into damages resulting from the claimant’s cross-undertaking when she first began this litigation and sought an injunction. She sought that injunction to restrain the defendants from dismissing her from her employment at the hospital where she was undergoing a training programme. She submits to us today that the result of this order is catastrophic. She will have lost her career and faces financial ruin.

The case has a long and unhappy history. It began, as I have said, with this application for an injunction, and the court’s initial approach was to direct an expedited hearing for two or three days for a date in July 2004. That first trial was vacated because of difficulties the claimant had in securing the attendance of her counsel. It was re-fixed for November 2004 but vacated because of her ill-health and a change of solicitors, but at that stage there was not much inclination given about her ill-health. The case was in fact adjourned for a month and came back again for the third time on 6 December.

On this occasion there was some investigation of her health and there were two letters before the court; one from her general practitioner, Dr Sampson, of 17 November in which he explained, as the judge sets out in paragraph 8 of his judgment, that she had been suffering from severe abdominal pains and had a past history of a duodenal ulcer. He referred to her awaiting a hospital appointment for an endoscopy. He indicated that the litigation was causing her great stress which may have precipitated the recurrence of the ulcer and he said she would be unfit to attend trial. Dr Tibbs, a consultant gastroenterologist, also put a report before the court in which he graphically spoke of her being doubled over with epigastric pain and that it was not reasonable to expect her to attend court, that the duodenal ulcer disease is often recurrent and made worse by stress, and he indicated in his conclusion that he would have further information once the endoscopy had been carried out. So that evidence having been accepted, the trial was adjourned and fixed for five days in August 2005, but shortly before that a long statement was served by the claimant and that trial had to go off. On the fifth occasion her solicitors applied to come off the record and that fixture had to be broken and this one fixed.

Meanwhile shortly before the trial began on 27 February, the claimant applied to Eady J for an adjournment on the grounds she had not been able to retain her solicitors but made no mention of her ill-health. Counsel now appearing on her behalf, Mr Livesey, for whose submissions I am grateful, pointed out that her application was in fact dated before the onset of the current difficulties, so it should not be a surprise if it was not referred to in the application and he sought indulgence for her not having mentioned her increasing ill-health to the judge.

Eady J refused that application for an adjournment and so the matter came before Burton J. He was faced with her application to adjourn on the grounds of ill-health, saying that an appointment to see a specialist was in the process and will be made as soon as possible. That was accompanied by another letter from Dr Sampson, saying simply that:

“This lady attended the surgery today [that is, 24 February] having had a flare up in her symptoms of abdominal pain for the past two weeks and having been up in the night with vomiting and nausea.”

He stated that she had started her Omeprazole and Fluoxetine, the latter being, as I understand it, an anti-depressant and the former, as I know from sorry experience, being a gastric acid suppressant. He concluded, “I believe she is medically unfit to attend court at present”. While that report was subject to a criticism from Mr Hand QC, who had his army of witnesses there to defend the claim, he pointed out, not surprisingly, that this had not prevented her coming before the court the previous week, that at the time she was before Eady J she would have been suffering, and he further observed that there was no mention in Dr Sampson’s letter of the follow up with Dr Tibbs and no indication whether the claimant had the investigations (including the endoscopy) which Dr Tibbs had indicated would either reveal that there was no problem or would enable him to see how the problem would be resolved. The judge found in paragraph 21, and this has to be borne in mind:

“There is no doubt that the claimant suffers from a recurring abdominal problem. But there is a clear question over what its impact is.”

Now that finding has to be assessed against the judge’s conclusion in sub-paragraph 7 at paragraph 30 of his judgment, where he said:

“I am very unimpressed indeed at the state of the medical evidence before me. In the absence of mention of any problem before Eady J but exacerbated by the brevity of Dr Sampson’s letter and the absence of exposition as to what happened after November and December 2004.”

He concluded that he was satisfied there was no sufficient case that there was anything in the claimant’s medical condition which had now rendered it impossible for her to proceed with her case. Mr Livesey attacks that conclusion and he draws to our attention the fact, which may not have been placed before the judge, that the defendants had commissioned their own report of the claimant in December 2004 when her medical history was being considered by the court.

They obtained a report from Dr Andrew Thillainayagam. He is a consultant physician in the gastroenterology unit of the Hammersmith Hospital and he set out her history and concluded that it would be most unusual for a duodenal ulcer not to respond significantly to several weeks of treatment with a proton pump inhibiter. However, many of Mrs Khudados’ recurrent symptoms are relatively new and are compatible with gastroesophageal reflux disease. He thought it was vital that Dr Tibbs expedites her endoscopy. He pointed to the claimant having anxiety and depression and he concluded that she should be a lot better within two or three weeks and would then be able to prepare herself for a further hearing. Now we are told that letter was not placed before the judge. It is a letter which is relevant to the judgment he had to take. As to the likelihood of a recurrence of her duodenal ulcer as bearing upon such corroboration, as it may give to the recent report from Dr Sampson, and as indicating that if a recurrence is likely then it is impossible that the recurrence would have incapacitated her in the way that Dr Sampson indicated.

I confess that I am troubled about the submission that the report was not placed before Burton J because it does have a relevance to the decision he had to take. There is another point made by Mr Livesey, and that is that the judge ought to give effect to the overriding objective and have had regard to the proportionality of his dismissing her claim as against the other remedies that were available for justice to be done to all parties. The defendants had obviously anticipated that argument, because they placed before him written submissions in which they entertained the prospect of there being a short adjournment of this case, possibly for about a week so, and that the case could resume on 6 March. If it was to resume on 6 March, it would have been likely to have resumed without the claimant being represented.

The probability of her managing to prolong this trial by vigorous cross-examination of the defendants’ witnesses for 25 days does seem perhaps to be unlikely and it may well be that the trial could have been accommodated in the remaining time. So the option for the judge was to have adjourned the matter for a short period, either to obtain the assistance of a duly qualified independent medical expert to answer the specific questions that the defendant wished him to answer, or even to require Dr Sampson to give evidence to the court to supplement the deficiencies that the judge felt to be present in the state of the evidence before him.

The judge rejected the former possibilities because the claimant herself had written in terms which seemed to prevent the independent examination which was the course adopted in the case of Andreou v Lord Chancellor's Department [2002] IRLR 728. She had said that the defendants:

“Intend to deprive me of my right to choose my own position and to subject me to the further oppressive humiliating and unreasonable treatment by forcing me to undergo a medical examination.”

That, the judge felt, rendered the adoption of the Andreou route impossible or at best problematic.

But there may have been no good reason not to require Dr Sampson to attend and to confirm the ill-health of his patient. Bearing in mind the prejudice to the claimant that arguably is a course he ought to have adopted before striking out her claim largely because of the prejudice to the defendants, whose busy experts were hugely inconvenienced by that late and unfortunate turn of events. It seems to me that there is therefore good reason to call upon the respondent to answer this application and I would adjourn it on notice to the respondents and to list the appeal to follow if permission is granted, and for that purpose I would direct that it be listed before a court of three, one of whom can be a High Court Judge, with a time estimate for a day.

But I add this footnote: this litigation fills me with real gloom and despair. Its first expedited hearing was listed for two to three days. It is now listed for 25 days. Like Topsy it has grown and I cannot but wonder whether it has grown out of all proportion. It strikes me yet again as the kind of case which should not return to this court before the parties have undertaken some mediation and the Court of Appeal’s mediation service is here to assist in that endeavour. This case cries out for that to be attempted before further steps are taken and I urge it upon the parties with all the force that I can.

My order, however, is to adjourn this to be re-listed on notice to the respondents with the appeal to follow for a day before a court of three, as I have said.

I agree with the course proposed by my Lord, Lord Justice Ward, for all the reasons that he has given. I respectfully associate myself strongly with his final indication that mediation is a course which even, or perhaps particularly at this late stage, the parties ought to attempt.