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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bayley v Whitbread Hotel Co Ltd (t/a Marriott Worsley Park Hotel) & Anor [2007] UKEAT 0046_07_1608 (16 August 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0046_07_1608.html Cite as: [2007] UKEAT 46_7_1608, [2007] UKEAT 0046_07_1608

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APPEARANCES

 

For the Appellant	MR MICHAEL MULHOLLAND (Of Counsel) Instructed by: Messrs Linder Myers Solicitors Phoenix House 45 Cross Street Manchester M2 4JF
For the Respondent	STEPHEN PEACOCK Solicitor Messrs Weightmans Solicitors 41 Spring Gardens Manchester M2 2BG


 


SUMMARY

PRACTICE AND PROCEDURE

Striking-out

The Employment Tribunal struck out a claim for disability discrimination because the Claimant's father (acting as his representative) had withheld potentially important passages from an expert report on which he relied – Held that the conduct in question was not sufficient to justify striking-out – Bolch v Chipman [2004] IRLR 140 and Blockbuster Entertainment Ltd v James [2006] IRLR 630 applied.


 


THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION

1. This is an appeal against an order of an Employment Tribunal sitting at Manchester on 26 October 2006 striking out the Claimant's claim of disability discrimination under rule 18 (7) (c) of the Employment Tribunals Rules of Procedure 2004. The order was made on the ground that the Claimant had acted unreasonably in the conduct of the proceedings. We will have to examine in more detail below the nature of the unreasonable conduct relied on: in broad outline, however, it was that the Claimant's father ("Mr. Bayley senior"), who had the conduct of the proceedings on his behalf, had deployed as part of his case incomplete and misleading versions of two important expert reports ("Mrs. Pilkington's reports"). Somewhat unusually, the order was made on the fifth day of the hearing of the substantive claim.
2. The nature of the claim, and the background procedural history, can be shortly stated. The Claimant is a young man now aged 20. He has the misfortune to suffer from severe dyslexia. On 7 June 2004, when he was only 17, he was recruited as a trainee chef under a "modern apprenticeship" scheme at the Marriott Worsley Park Hotel in Manchester. There appears to be some uncertainty about whether his employer was the First or the Second Respondent, but nothing turns on that for present purposes. His employment ended three months later, on 7 September 2004, in circumstances which are contentious but which the Claimant says constituted a constructive dismissal. On 10 November 2004 he commenced the present proceedings. Although other heads of claim are pleaded, we are only concerned with his claim for disability discrimination, which was advanced on the basis that the Respondents failed to make reasonable adjustments to accommodate the difficulties caused by his dyslexia, in breach of their duty under what was then s. 6 of the Disability Discrimination Act 1995. The Respondents disputed whether the Claimant's dyslexia constituted a disability within the meaning of the Act. That issue was the subject of a preliminary hearing before a Chairman sitting alone which took place over three days in July and September 2005. Both parties called expert evidence, the Claimant from a Mr. Snodgrass and the Respondents from a Dr Wilson. By a judgment sent to the parties on 29 December 2005 the Chairman decided that issue in the Respondents' favour. That decision was reversed by this Tribunal (Judge McMullen QC sitting alone) on 3 April 2006. In the light of that decision a substantive hearing of the Claimant's claim was fixed for eight days starting on Friday 20 October 2006.
3. Throughout the proceedings in the Employment Tribunal the Claimant was represented by his father. Mr. Bayley senior is not a lawyer – he is a surveyor by profession – but he is an educated man, with apparently some forensic experience gained from involvement in planning enquiries. Before us, however, (and before Judge McMullen) the Claimant has been represented by Mr. Michael Mulholland of counsel. The Respondents have been represented both here and below by Mr. Steve Peacock of Messrs. Weightmans. We are grateful to Mr. Mulholland and Mr. Peacock for their cogent and well-judged submissions.

MRS. PILKINGTON'S REPORTS

4. On 21 June 2000, when the Claimant was only 13, he was seen, at the request of his parents, by an educational psychologist called Mrs. Pilkington. On 7 August 2000 Mrs Pilkington produced two reports – or, perhaps, two versions of a single report – which have been referred to in these proceedings as "P" and "Q". Q is the fuller of the two, running to some 16 pages. P consists of 11 pages and bears the running header "Summary Report". P was intended to be shown to the LEA and to the Claimant's school, whereas Q was intended for the Claimant's parents' eyes only (and those of any advisers) to assist them in considering whether to bring proceedings against the LEA for negligence in the provision of educational support to the Claimant. P bears on its first page the following rubric:

"This psychological assessment has been carried out for you by Isobel Pilkington, consulting chartered education psychologist and OFSTED accredited inspector of schools

This short report, for use by the LEA and school, consists of a brief summary, discussion of results and recommendations. Full test results are contained in the technical appendix."

The equivalent rubric in Q is differently worded in as much as it replaces the phrase "this short report, for use by the LEA and the school, consists of …" with the phrase "the report is in sections: …". Given the difference in their purposes, there are major differences in the detailed matters covered by the two reports; but they are nevertheless derived from the same assessment and, as one would expect, the technical appendices are identical.

5. On receipt of the Claimant's ET1 the Tribunal sent what was no doubt a standard-form letter to Mr. Bayley senior telling him that evidence of the disability would be required. He responded by letter dated 27 November 2004 in the following terms:

"Proof of Disability – Dyslexia

Further to your letter of 17^th Nov last I attach an extract from an independent Educational Psychologist's report which concludes that Alastair was "severely dyslexic".

I trust this adequately confirms this point."

The attachment consisted of the first four pages of P, which have been referred to in these proceedings as "P1". P1 and the letter of 22 November 2004 were stamped by the Tribunal "addition to IT1" and were sent to the Respondents on that basis. It is clear from the letter of 22 November that what is being supplied is only an extract from the full report; and that would also be clear on any careful reading of the document itself, since the pages supplied do not contain either the "recommendations" or the technical appendix promised in the introductory rubric. However, the extract stops at what might appear to be a natural break, so that an unwary reader might not appreciate that it was incomplete.

6. On 29 June 2005, i.e. shortly before the hearing of the preliminary issue on the question of disability, Mr. Bayley senior sent to the Respondents the last five pages of Q (pp. 12-16): this has been referred to for the purpose of these proceedings as "Q1". Q1 consisted, essentially, of the technical appendix to Q, but because that starts near the foot of p. 12 it contained also the final page of the "Recommendations" section (beginning in mid-sentence). Mr. Bayley senior appears to have sent Q1 at this point because Mr. Snodgrass had made use of the technical appendix for the purpose of his report for the preliminary hearing, and it was accordingly necessary that the Respondents should see it. In fact it arrived too late to be taken into account by Dr Wilson in his report, but he was able to deal with it in his oral evidence. The technical appendix was, as we have said, identical in P and Q (save as to pagination), and it appears to have been simply a matter of chance that Mr. Bayley senior sent it in the form that it appeared in Q rather than as it appeared in P. Weightmans naturally assumed that what they had been supplied with was the technical appendix referred to in the rubric to P1: there was no reason for them to suppose that there was more than one report. They could, however, have detected, if they had considered the point, that they had still not been supplied with the entirety of Mrs. Pilkington's report, since P1 consisted of only four pages whereas the first page of Q1 was numbered 12.
7. It was, accordingly, P1 and Q1 which were made available to the experts and the Tribunal for the purpose of the preliminary hearing.
8. In the course of the preparation for the substantive hearing, following the disposal of the preliminary issue in this Tribunal, Weightmans proofed an educational psychologist called Mr. Philpot, who had reported on the Claimant for the LEA and had considerable experience of dealing with Mr. Bayley senior. He had in that context received a copy of Q, presumably because Mr. Bayley senior had at some point deployed it in his dispute with the LEA; and he gave a copy to Weightmans. It took them a few weeks to appreciate that what Mr. Philpot had given them was different from what they had already seen - namely P1 and Q1 - but in early September 2006 they realised that Q contained a good deal of further material. Although there was some overlap between pp. 1-11 of Q, which they were now seeing for the first time, and P1, the new material was of course much more substantial. Having said that, it did not take matters much further, save for two (related) points:

(1) The sections of Q headed "Background", "Discussion" and "Recommendations" (which did not correspond to anything in P1) contained a number of observations to the effect that the Claimant was resistant to attempts to help him with his dyslexia. It seemed to the Respondents – and we agree – that those observations were potentially relevant to the reasonable adjustment issue.

(2) On the first page of Q1 as supplied (p. 12 of Q) there was a blank space of a few lines immediately before the start of the technical appendix. It now transpired from the complete copy of Q that a paragraph (para. 10 of Mrs. Pilkington's recommendations) had been deliberately blanked out by Mr. Bayley senior. The paragraph in question appears comparatively innocuous, but it seems to have been regarded by Mr. Bayley senior as sensitive because it refers to the possibility that the Claimant might be "unwilling to accept support". There was no indication in Q1 that any such redaction had occurred: it was only by comparing the page with Q that it became apparent.

9. Weightmans accordingly wrote to Mr. Bayley senior notifying him that the Respondents intended to refer to the whole of Q at the forthcoming hearing. There followed some correspondence in which Mr. Bayley senior objected in heated terms to their doing so: among other things, he also threatened to report the matter to the police and to bring a prosecution under the Data Protection Act, and he made a complaint to the compliance partner at Weightmans. Partly because of this dispute, but also on other grounds, Mr. Bayley senior sought an order that the hearing be adjourned. By letter dated 10 October 2006 a Tribunal Chairman directed that the claim should proceed and accepted the Respondents' contention that the outstanding issues about the admissibility of documents should be resolved at the hearing itself.
10. On the second day of the hearing – Monday 23 October - Mr. Peacock made a formal application for disclosure of both Q (of which the Respondents already had the copy obtained from Mr Philpot to which their right of use was disputed) and P (of which they so far only had the extract constituted by P1). The Tribunal directed that both reports be disclosed. (Written reasons for the decision were subsequently sent to the parties on 15 November 2006.)
11. The hearing then proceeded. On the third day – Tuesday 24 October – both Mr. Bayley senior and Mr. Snodgrass gave evidence. Mr. Bayley senior was cross-examined about the withholding of P and Q and the redaction of Q1. Mr. Snodgrass accepted in cross-examination that he had never seen anything more than P1 and Q1, i.e. that he had never been given the full P and Q. In the light of his cross-examination, Mr. Peacock said on the fourth day that he wished to make an application to strike out the claim for disability discrimination. The Tribunal required him to put his submissions in writing. He duly did so overnight, and the application was heard the following day (26 October). The Tribunal gave its decision – being the decision appealed from - that afternoon, with written reasons being sent to the parties on 15 November 2006.

THE TRIBUNAL'S REASONING

12. The Tribunal's reasoning is set out at considerable length and we will not reproduce it in full here. Its effect can be summarised as follows. (We have to say that the Reasons are disfigured by a surprising number of typographical errors, affecting not just spelling and punctuation but on occasions the actual sense of what is being said. In quoting from the Reasons we have silently corrected minor errors, but we have had to leave some passages uncorrected because we are not clear what was intended.)
13. Paras. 1-6 set out the factual and procedural background. Most of this is uncontroversial, but we should note two potentially significant errors by the Tribunal:

(1) At para. 5.5 the Tribunal says that when Mr. Bayley senior "disclosed" P1 - strictly, "supplied" might have been a better term, since no order for disclosure in the ordinary sense was ever made - he "did not reveal that [it] was only part of Report P". That is clearly wrong, since the covering letter expressly referred to the document as an "extract", and that was also apparent from the form of the document itself (see para. 5 above).

(2) At para. 5.6 it says that when Mr. Bayley senior "disclosed" Q1 "he did not reveal that [it] was only part of Q". That is not so unambiguously wrong as what it said about P1, because there is no equivalent to the covering letter referring to an "extract". Nevertheless, it still seems to us to be wrong since it was entirely apparent from the form of Q1 that it was only part of a fuller document (see para. 6 above).

Both errors give an exaggerated impression of the culpability of Mr. Bayley senior's conduct. While he certainly withheld the full reports of P and Q (and silently redacted part of Q1) he never sought to conceal that what he produced were only parts of a fuller report.

14. Para 7 summarises Mr. Bayley senior's explanations for withholding the full text of P and Q and redacting Q1, together with the Respondent's criticisms of those explanations. In essence, it was his case that he had not believed that any part of either report beyond those which he produced was relevant to the issues at either the preliminary hearing or the substantive hearing. He had produced what he thought was necessary and was anxious to avoid the Tribunal being side-tracked onto what he believed to be non-issues. As regards Q, he had believed this to be privileged: he had never intended to disclose any part of it, and he had not believed that it was legitimate for the Respondents to make use of the copy which they had obtained from Mr. Philpot.
15. In para 8, the Tribunal referred to the relevant law in the following terms:

"The legal principles governing whether or not to strike out a claim concerned an analysis of the overriding objective by considering:-

(a) all the circumstances in relation to the case

(b) the appropriate sanction that might or might not be appropriate; and

(c) whether the sanction was proportionate in the circumstances.

What the Tribunal had to consider in relation to an application under rule 18 (7) (c) is

(1) whether the conduct of Mr. Bayley senior was unreasonable?

(2) whether the Respondent suffered any prejudice?

(3) whether a lesser sanction than striking out the claim would cure that prejudice?

(4) whether a fair trial remained possible.

The Tribunal was helpfully referred to the authorities of:-

Armitage v Weir Valves and Controls UK Ltd [2004] ICR 371

Bennett v London Borough of Southwark [2002] IRLR 407 and

Bolch v Chipman [2004] IRLR 140

These authorities confirmed the principles which are set out above.

16. In para. 9 the Tribunal summarised Mr. Bayley senior's submissions on the strike-out issue. We need not set these out in full. In essence, he accepted that his attitude to production of Mrs. Pilkington's reports had been misguided, but he said that he had been acting in good faith as a concerned father and that striking-out would be an unnecessarily draconian step.
17. Para. 10 of the Reasons is headed "Conclusion". It is this paragraph which contains the substance of the Tribunal's reasons for its decision, given over some four pages. It is unnecessary that we should reproduce it in full, although we will have to set out particular passages below. Helpfully, the Tribunal gives a summary of its reasoning in para. 11 of the Reasons (also, a little confusingly, headed "Conclusion"), by reference to the questions (1) to (4) identified in para 8 of the Reasons (see para. 15 above). This reads as follows:

"In the Tribunal's judgement the answers to the questions which required resolutions were:

11.1 Had Mr. Bayley senior acted unreasonably in his conduct of the proceedings ? The Tribunal's conclusion was that he had acted unreasonably in the circumstances. The facts found by the Tribunal spoke for themselves.

11.2 Had there been prejudice to the Respondent? The Tribunal's answer was "Yes". There has been considerable prejudice to the respondent at all stages of the litigation. That prejudice included the effect upon one Tribunal hearing and a hearing before the Employment Appeal Tribunal. The Tribunal acknowledged that by striking out the claim there would be prejudice to the claimant. However, the prejudice to the respondent throughout the proceedings outweighed that to the claimant in the circumstances.

11.3 Would a lesser sanction (than striking out the claim) cure the prejudice ? In the Tribunal's judgment it would not cure the prejudice. This is extremely serious conduct. It had an impact upon

(a) the work of two experts

(b) how the case had been conducted by the respondent

(c) a hearing before the Employment Tribunal and a further appeal hearing before the Employment Appeal Tribunal, and

(d) the conduct of the trial.

The Tribunal concluded that the matter would not have come to light but for the intervention of a potential witness to be called at the hearing as Mr. Bayley senior had no intention for disclosing Reports P and Q.

The prejudice could not be cured by an order for costs being made against the claimant as the conduct of Mr. Bayley went to the administration of public justice in the circumstances.

11.4 Did a fair trial remain possible with regard to the disability discrimination claim in this matter? The answer to this question in the Tribunal's judgment was "No". The tribunal concluded that unless the proceedings were recommenced with new case management orders and a further hearing to resolve the Section 1 of the 1995 Act issue the faults could not be cured. The litigation was now three years old and was a case involving investigation into matter of some antiquity in view of the age of Reports P and Q. Case management of the litigation now almost three years old the faults could be cured [sic]. In the circumstances a fair trial was not possible in relation to the disability discrimination issue."

18. That, therefore, is the Tribunal's own summary of its reasoning. However it is necessary to amplify it by reference to some of the passages from the much fuller reasoning in para. 10, as follows:

(1) Mr. Bayley's culpability. Although the question of Mr. Bayley senior's state of mind does not form part of the reasoning summarised in para. 11, the Tribunal considered at some length in para. 10 whether in deciding to withhold P and Q he had simply made an innocent misjudgment. At para. 10.2.1 it expressly rejected his case on this point. Having referred to the expertise which he had acquired in the earlier stages of the claim and from his knowledge of planning inquiries, it found that he understood "the role and duties of expert witnesses and the purpose of expert reports" and went on to say that:

"He knew he was not acting openly by failing to disclose Report P and Q. He knew he was "doing wrong" by not disclosing the two reports particularly as Mrs. Pilkington was not being called as a witness in the Tribunal proceedings. The Tribunal rejected Mr. Bayley senior's assertions that he thought he had acted properly in only disclosing "edited highlights" of Reports P and Q."

Similar findings that Mr. Bayley senior acted deliberately, and in the knowledge of the potential effects of his action, are made at paras 10.2.2, 10.2.4-5 and 10.2.7.

(2) The effect of the withholding/redaction. The Tribunal emphasised, particularly in paras 10.2.3 and 10.2.5-6, that P1 and Q1, taken by themselves, gave a misleading impression as to Mrs. Pilkington's true views.

(3) Prejudice. At para 10.2.8 the Tribunal rejects Mr. Bayley senior's argument that the parts of the Reports which were withheld were immaterial. Its consideration of that point then moves to the related question of whether the withholding of those parts prejudiced the Respondents. The passages in question read as follows:

"10.2.8 … The Tribunal was satisfied that there were potential issues which arose in the claimant's childhood or teenage years which might have been relevant to considerations that faced the Tribunal in all aspects of this claim. This included the hearing into the section 1 of the 1995 Act issue which was before the Tribunal at the earlier Pre-Hearing Review.

The Employment Tribunal and the Employment Appeal Tribunal made an adjudication on the particular facts it was given. It was a matter of conjecture what the Employment Tribunal and Employment Appeal Tribunal might have concluded on the section 1 of the 1995 Act issue is Reports P and Q had been disclosed to Mr. Snodgrass and Dr Wilson and they had prepared their reports on that basis.

10.2.9 The Tribunal was satisfied that there was prejudice to the respondent in any case where only a partial disclosure or edited highlights of an expert's reports was given where the disclosure was favourable to one party alone. The Tribunal was satisfied there was prejudice over the non-disclosure."

It will be seen, therefore, that the prejudice found by the Tribunal in that passage related primarily, and perhaps only, to the effect of the withholding on the decision on the preliminary issue which had already been decided, i.e. the issue of whether the Claimant was in fact disabled. However, at para 10.2.11, the Tribunal appears to proceed to find further prejudice as regards the substantive hearing before it. The passage reads as follows:

"The respondents argued that the failure to properly and reasonably disclose the Report P denied them the opportunity when it sought expert guidance from its medical expert for an expert opinion as to whether the claimant's unwillingness to accept support and his reluctance to accept support and his to be treated differently [sic]. It was a material factor when seeking that expert's opinion and the opportunity had been lost and the case had proceeded through two hearings on a fundamental misapprehension and mistaken misunderstanding. The Tribunal accepted that submission."

After a substantial passage in which the Tribunal criticised the evidence of Mr. Snodgrass, it reverted to the question of prejudice at para 10.2.12, in the following terms:

"As Report P was not available the respondent had no way of knowing what impact it might have had, what evidence might have adduced and the Tribunal; had not idea about the impact of the evidence [sic]. In view of the fact that Report P contained key evidence concerning allegations made against the respondent it was inevitable in the Tribunal's judgment that it would have had some impact. The question was to what level."

(4) The Claimant's responsibility for his father's conduct. The final sentence of para. 10.2.12 acknowledges that the criticisms thus far made by the Tribunal related to the conduct of Mr. Bayley senior. However, in para. 10.2.13 the Tribunal proceeds to find as follows:

"In the Tribunal's judgment in the circumstances, it was not open to the claimant to disown or to disassociate himself from the conduct of his representative. It was part of the claimant's case. He knew about Reports P and Q and was aware that there had not been full disclosure of the material."

THE APPEAL

19. The Amended Notice of Appeal deploys no fewer than thirteen numbered Grounds of Appeal. However, Mr. Mulholland in his skeleton argument helpfully grouped them under six headings, as follows:

(a) that the application to strike-out should have been dismissed because it was made too late;

(b) that the Tribunal should have adjourned the application until Mr. Bayley senior had had a better opportunity to consider its terms and the authorities on which the Respondents relied;

(c) that the Tribunal wrongly proceeded on the basis that Mr. Bayley senior had concealed the fact that P1 and Q1 were only extracts;

(d) that the Tribunal gave no basis for its decision that the acts of Mr. Bayley senior were to be attributed to the Claimant (see para 10.2.13 of the Reasons);

(e) that there was no, or no adequate, basis for the Tribunal's findings that the withholding of the full versions of P and Q prejudiced, or may have prejudiced, the outcome of the preliminary hearing or the conduct of the substantive hearing; and

(f) that the striking-out of the claim was so disproportionate a reaction to Mr. Bayley senior's misconduct as to constitute an error of law.

For reasons which will appear, we do not find it necessary to deal with each of those grounds, though most of them feed to some extent into our conclusion.

20. We are content to assume for present purposes that the Tribunal was entitled to find that Mr. Bayley senior's conduct in producing only "edited highlights" of Mrs. Pilkington's reports was not only wrong-headed (which Mr. Mulholland was very willing to accept) but constituted a deliberate decision to do something which he appreciated was wrong. We have some concerns about whether that finding may be too harsh, particularly in view of the factual errors identified at para. 13 above: cf. Mr. Mulholland's "point (c)". But we appreciate that the Tribunal had the advantage, which we have not had, of seeing Mr. Bayley senior in action over several days and of hearing him cross-examined. However, there is clear authority that even in a case of deliberate failures of disclosure the fundamental question for the Tribunal is whether a party's admitted conduct has rendered a fair trial impossible: see Bolch v Chipman [2004] IRLR 140, per Burton P. at para 55 (2) citing De Keyser Limited v Wilson [2001] IRLR 324 and Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167. A further authority to similar effect which was not cited to the Tribunal (it had been decided but not at that point reported) is Blockbuster Entertainment Ltd. v James [2006] IRLR 630: see per Sedley LJ at para. 5 (p. 633).
21. The Tribunal did indeed address that fundamental question, at para. 11.4 (see para. 17 above), and it held that a fair trial was not possible because of the impact of the withholdings on both the hearing which had already taken place on the issue whether the Claimant was disabled and on the hearing then in progress (though as we read it, it was the former on which it placed the greater weight). We do not believe that its conclusion in either respect is sustainable. We consider them in turn.
22. As regards the preliminary issue, we can identify nothing in the withheld portions of P and Q which could have had a significant bearing on the experts' assessment on the questions of whether the Claimant suffered from dyslexia to such a degree as to constitute a disability. That is entirely to be expected. Mrs. Pilkington believed that the Claimant was severely dyslexic. That appeared from her technical appendix, and unsurprisingly the omitted sections of P and Q were entirely consistent with that view. It is hard therefore to see how they could have affected the views of either expert – whether Mr. Snodgrass, who relied on Mrs. Pilkington's findings as stated in P1 and Q1, or (still less) Dr. Wilson, who had conducted his own assessment. Mr. Peacock was unable to point to anything in the full P or Q that tended to undermine the conclusions in P1 and Q1 that the Claimant was severely dyslexic. Nor, more importantly, could the Tribunal: it went no further than saying that it was "a matter of conjecture" (see para. 10.2.8 quoted at para. 18 (3) above) and that the omissions must have had "some impact" though it could not say how much (para. 10.2.12, loc. cit.). That is insufficient While we fully accept that it was unnecessary for the Respondents to show that the outcome would certainly have been different if the withheld passages had been available, it was necessary to show at least that there was a real chance that it might have been. Otherwise there is no injustice and no risk to a fair disposal of the issues between the parties.
23. As regards the reasonable adjustments issue, we have already expressed our view – in agreement with the Tribunal – that the withheld passages were potentially relevant, particularly because of the references to the Claimant's reluctance to accept that he needed help. But those passages were now before the Tribunal. They could be deployed in evidence and used as the basis of cross-examination. The only prejudice to a fair trial which Mr. Peacock was able to suggest was that the Respondents had decided not to seek evidence from Dr. Wilson for the purpose of the reasonable adjustments hearing and that they might have taken a different decision if they had seen P and Q earlier. (This also seems to have been the point being made in the Tribunal in the garbled passage from para. 10.2.11 of the Reasons quoted at para. 18 (3) above.) We are unimpressed by this point. It is hard to see what Dr. Wilson, from a specifically medical expertise, could have added to the points that could be made from P and Q themselves. But in any event the Respondents had had Q since June and had appreciated its significance since early September. If they had wanted to call Dr. Wilson they had ample opportunity to do so.
24. Accordingly we believe that both the bases for the Tribunal's view that a fair trial was impossible are flawed. Even granted that Mr. Bayley senior had behaved deplorably, no irreparable damage had been done. We fear that the Tribunal allowed its strong (arguably over-strong) disapproval of the way that Mr. Bayley senior had conducted himself to obscure a clear assessment of what actual harm had been done.
25. Once that point is reached, it seems to us that the appeal must be allowed, essentially on Mr. Mulholland's ground (e) (see para. 19 above), though there may be some overlap with ground (f). It is accordingly unnecessary for us to comment in detail on Mr. Mulholland's other points. We will only make the following brief observations:

(1) We would not have allowed the appeal on ground (a). Mr. Peacock did not feel in a position to make his application until the Tribunal had ruled on whether P and Q were disclosable, and it was reasonable to defer decision of that question to the beginning of the hearing, as the Tribunal accepted (see para. 9 above). We were pressed by Mr. Mulholland with Sedley LJ's observation in Blockbuster (above) about the undesirability of a strike-out application for serious breaches of the rules only being made at a point where the case has reached a final hearing (see at para. 19). We entirely accept Sedley LJ's point, but the sequence of events in the present case meant that an earlier application was not practicable. Mr. Mulholland was critical of Mr. Peacock for not at least making the strike-out application at the same time as, or immediately following the determination of, the disclosure application; but we understand why Mr. Peacock preferred to have heard the evidence of the Claimant's witnesses first, and in any event a delay of a day or two was not in this context of any real consequence.

(2) As to ground (b), Mr. Bayley senior only received the Respondents' written submissions and authorities on the morning of the fifth day, very shortly before the hearing was to begin. He had been on notice since the previous day that the application was to be made and he was of course very fully familiar with the facts giving rise to it. Nevertheless, fairness required that if he asked for it he should be given reasonable time to read the authorities and to digest the way in which the application was put. However, we were told that he assured the Tribunal in terms that he was ready to proceed there and then, and we do not think that it can be criticised for taking him at his word.

(3) As to ground (c), we have already indicated that there is a question-mark over whether the Tribunal's assessment of the degree of Mr. Bayley senior's culpability was over-harsh and in particular whether it may have been affected by its error about whether he had concealed the fact that P1 and Q1 were extracts. This was not however in the end central to its reasoning. We would not want it to be thought that we do not share the view that Mr. Bayley's conduct of the whole of this aspect of the case was wrong-headed. Quite apart from the undisclosed redaction of Q1, the tenor of his correspondence in September and October once he learnt that Weightmans had obtained Q was ill-judged. It seems to us that Mr. Bayley senior has become emotionally involved in his son's claim in a manner which may make it difficult for him to take a balanced view about its merits and conduct. We would hope that he will take the opportunity at this stage to take some advice about how he and the Claimant should proceed hereafter.

(4) As to ground (d), the Tribunal's reasons for holding that the Claimant was associated with what his father did are indeed shortly expressed (see para. 10.2.13 quoted at para. 18.4 above) and they may be open to some criticism. But the question of the circumstances in which it is fair for a party to take the consequences of the conduct of his representative is not entirely straightforward (see Bennett v. London Borough of Southwark [2002] ICR 881, at para. 26) and since we do not need to embark on it here we prefer not to do so.

26. It follows that this appeal must be allowed and the reasonable adjustments claim remitted for a fresh hearing. In the circumstances of this case it seems to us right that the hearing should be before a differently-constituted Tribunal. It is highly regrettable that events which occurred three or so years ago should have to be the subject of a further hearing, but that cannot be helped – short cuts (sometimes) make long delays.