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Galo v Bombardier Aerospace UK
Factual and Procedural Background
The Appellant, employed by Company B as a composite operator since September 2007, initiated proceedings in the Industrial Tribunal alleging victimisation and unlawful discrimination on grounds of disability, race, religious belief, or political opinion. The disability identified was Asperger's Syndrome. The Tribunal proceedings commenced on 17 April 2013 following the Appellant's suspension from work on 21 March 2013.
The Tribunal did not address the merits of the complaints but instead held preliminary hearings focusing on the Appellant's capacity to litigate. The Tribunal answered affirmatively that it had the power to determine capacity, identified a test for capacity, but concluded it could not apply the test due to the absence of an up-to-date consultant psychiatrist's report and the Appellant's refusal to consent to further assessments.
Subsequently, relying on procedural rule 32(1)(e), the Tribunal struck out the Appellant's claims on the basis that a fair hearing was no longer possible. The Appellant did not make oral or written representations following this decision. The Appellant appealed, and the respondent conceded the appeal. The Court of Appeal reversed and set aside the Tribunal's decisions and remitted the claims to a differently constituted Tribunal for adjudication.
Legal Issues Presented
- Does the Tribunal have the power to determine whether a complainant has capacity to litigate?
- What test should be applied to determine capacity to litigate?
- Does the complainant have capacity to litigate under the identified test?
- Is the Tribunal empowered to strike out claims under rule 32(1)(e) on the grounds that a fair hearing is no longer possible?
- What procedural safeguards, including the appointment of a litigation friend, are applicable when capacity to litigate is in question?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Witham v Lord Chancellor [1998] QB 575 | Constitutional right of access to courts as a cornerstone of common law | Established the constitutional stature of the right to access courts, framing the context for litigation capacity issues. |
| Almack v Moore [1878] 2 LR IR 90 | Role and powers of next friend or guardian ad litem | Confirmed the next friend’s control over procedural conduct and the necessity of acting in the litigant’s best interests. |
| Rhodes v Swithenbank [1882] 22 QBD 577 | Limits on next friend’s power, especially regarding compromise | Held that acts beyond procedural conduct must benefit the litigant; otherwise, they are not binding. |
| Whittall v Faulkner [1973] 3 All ER 35 | Obligations of guardian ad litem | Equated guardian ad litem’s role to next friend’s, emphasizing safeguarding litigant’s interests. |
| Masterman v Brutton [2003] 1 WLR 1511 | Test for capacity to litigate as issue-specific and contextual | Adopted test focusing on understanding issues with assistance; distinguished capacity to litigate from capacity to manage damages. |
| Stott v Leadec Limited [UK EAT/0263/19/LA] | Clarification of capacity test and evidential requirements | Confirmed capacity depends on time and context; medical evidence usually required but not invariably. |
| Z v Kent County Council and Others [2018] EWFC B65 | Requirement for courts to address capacity pragmatically and evidence-based | Emphasized pragmatic, evidence-based determinations with protection of litigant’s rights paramount. |
| Anyanwu v South Bank Student Union [2001] UKHL 14 | Caution against premature strike out of discrimination claims | Warned that discrimination claims should generally be decided after evidence is heard to avoid injustice. |
| Timbov v Greenwich Council For Racial Equality [2012] WL 4050232 | Need for caution in no case to answer applications in tribunal cases | Supported the principle of careful scrutiny before dismissing claims without full hearing. |
| Abegaze v Shrewsbury College [2009] EWCA Civ 96 | Principles governing strike out for failure to actively pursue case | Outlined elevated threshold requiring intentional or contumelious default or serious prejudice for strike out. |
| Birkett v James [1978] AC 297 | Common law principles on striking out for want of prosecution | Provided framework for assessing when strike out is appropriate due to delay or non-prosecution. |
| TF v Public Services Ombudsman [2022] NICA 17 | Balancing fairness in procedural decisions including adjournments | Stressed that test for adjournment refusal is fairness, not Wednesbury unreasonableness. |
| R v Secretary of State for the Home Department ex parte the Kingdom of Belgium and Others [2000] | Fairness as a matter of law in procedural propriety | Confirmed that fairness is a legal question, not a matter of discretion of decision-maker. |
| Riley v CPS [2013] EWCA Civ 951 | Procedural fairness and the Wednesbury test | Rejected Wednesbury unreasonableness as the correct test in procedural fairness cases; emphasized constitutional rights. |
| Andreou v The Lord Chancellor's Department | Balancing fairness to all parties in adjournment decisions | Recognized the need to balance fairness between claimant and respondent in adjudication timing. |
| R v Davies [2002] EWCA Crim 85 | Litigation privilege and confidentiality | Supported the common law protection of confidentiality and privilege against compelled disclosure of medical reports. |
Court's Reasoning and Analysis
The Court began by affirming the constitutional right of every citizen to access courts and tribunals, noting this right is subject to regulation designed to protect vulnerable persons and prevent misuse of court processes. It emphasized that the capacity to litigate is a mixed question of law and fact that must be determined contextually, focusing on the specific litigation and the decisions the litigant must make.
The Court approved the test adopted by the Tribunal, derived from Masterman v Brutton and Stott v Leadec, which assesses whether a litigant can understand issues with appropriate assistance. However, it found the Tribunal erred by failing to properly determine the Appellant's capacity despite having substantial medical and psychological evidence, and by not considering the appointment of a litigation friend, which could have facilitated the Appellant’s participation.
The Court criticized the Tribunal’s reliance on the absence of the most recent psychiatric report as a bar to making a capacity determination, ruling that the Tribunal should have assessed capacity on the totality of available evidence and conduct. The Tribunal's invocation of rule 32(1)(e) to strike out claims without merit consideration was held to be an improper exercise of a draconian power, lacking adequate procedural safeguards such as prior representations and consideration of the merits.
The Court further held that the Tribunal had no power to compel disclosure of privileged medical reports, respecting the Appellant's rights under article 8 ECHR and common law litigation privilege. It also clarified that the Official Solicitor does not have power to act as next friend in tribunal proceedings under the current statutory framework.
Looking forward, the Court identified a procedural gap in the 2020 Rules concerning the appointment of litigation friends in tribunal cases and recommended that rule amendments or practice directions be considered to address this. It underscored the Tribunal’s duty to exercise its broad case management powers creatively to protect litigants’ constitutional rights, even in the absence of formal rules.
The Court emphasized that the Appellant’s claims must not be dismissed summarily or indefinitely adjourned. Instead, practical solutions must be found to enable the Appellant to pursue his claims with appropriate support, including the identification of a suitable next friend and potential funding for legal representation.
Finally, the Court reiterated the overriding importance of fairness and effectiveness in procedural decisions, rejecting the application of the Wednesbury unreasonableness standard in favor of a fairness-based approach rooted in constitutional rights.
Holding and Implications
The Court REVERSED AND SET ASIDE all of the Tribunal’s decisions and orders dated 24 February, 27 June, and 18 August 2022. The Appellant’s claims are remitted to the Industrial Tribunal before a differently constituted panel for adjudication in accordance with this judgment.
This decision restores the Appellant’s right to have his claims heard on the merits and clarifies that tribunals must properly assess capacity to litigate using all available evidence and consider appointing litigation friends where appropriate. It highlights the necessity for procedural rules or practice directions to fill existing gaps regarding litigation friends in tribunal proceedings.
No new legal precedent was established beyond the clarification and application of existing principles concerning litigation capacity, procedural fairness, and tribunal powers. The direct effect is to require the Tribunal to proceed fairly and with appropriate procedural safeguards in the retrial of the Appellant’s claims.
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