Factual and Procedural Background
The Respondent, a social landlord referred to as Company A, granted the Appellant, Plaintiff, an assured tenancy of a ground floor flat in a purpose-built block of flats in The City. From 2018, a neighbour complained of persistent banging from the Plaintiff's flat. In 2020, Company A brought possession proceedings relying on statutory grounds due to the banging. The Plaintiff defended the proceedings and counterclaimed for disability discrimination.
The Plaintiff, although not accepting mental illness, was found disabled under the Equality Act 2010 due to a delusional disorder and lacked capacity, resulting in the Official Solicitor acting as his Litigation Friend. An assessor was appointed to assist the Trial Judge pursuant to statutory provisions relating to disability discrimination cases.
The Trial Judge heard evidence over four days from multiple witnesses, including neighbours, representatives of Company A, and local social services officers, as well as expert medical evidence diagnosing the Plaintiff's disability.
The Plaintiff sought disclosure of the assessor's advice to the Court, which was refused by the Trial Judge, who subsequently made an order for possession.
The Plaintiff appealed twice to the High Court, challenging the refusal to disclose the assessor's advice and the use of the assessor on grounds that the assessor lacked expertise on proportionality and legitimate expectation issues. Both appeals were dismissed by Bacon J.
The Plaintiff now appeals against Bacon J's order, repeating the same grounds concerning disclosure and the assessor's role. There was no challenge to the Trial Judge's factual findings or legal assessment of the claim and counterclaim, with the appeal focusing solely on alleged procedural unfairness.
Prior to trial, Company A conducted multiple Equality and Proportionality Assessments attempting to resolve issues supportively, involving local authorities and health services, but the Plaintiff declined to cooperate. The tenancy agreement prohibited anti-social behaviour, which Company A alleged occurred through the banging. The Plaintiff denied nuisance and alleged disability discrimination, including breaches of the Equality Act 2010 and Public Sector Equality Duty.
The Trial Judge found the banging constituted a nuisance and breach of tenancy, and that possession was reasonable and proportionate given the circumstances, including compliance by Company A with statutory equality duties. The assessor’s role was to assist the Judge in evaluating evidence related to proportionality and legitimate aim.
The Trial Judge’s judgment was detailed, well-structured, and demonstrated specialist knowledge of the Equality Act 2010 and related legal principles.
The appeal to Bacon J focused on whether the assessor’s advice should have been disclosed and whether the assessor improperly contributed to legal determinations. Bacon J dismissed both grounds, distinguishing between assessors providing expert evidence (which requires disclosure) and those assisting in evaluating evidence (which generally do not).
The present appeal challenges Bacon J’s dismissal on these same issues.
Legal Issues Presented
- Whether the Trial Judge was wrong to refuse disclosure of the assessor’s advice to the parties, in breach of procedural fairness and Article 6 of the European Convention on Human Rights.
- Whether the Trial Judge wrongly used the assessor by seeking advice on issues beyond her expertise, specifically on proportionality and legitimate expectation, which are legal questions.
Arguments of the Parties
Appellant's Arguments
- The assessor’s advice should have been disclosed to ensure transparency and fairness, as it influenced the Court’s decision.
- The distinction between assessor “advice” and “evidence” is impractical and unworkable, and the assessor’s comments should be disclosed.
- The assessor was improperly asked to opine on proportionality and legitimate aim, legal issues outside her competency.
- The Plaintiff did not know the case he had to meet due to lack of disclosure and uncertain scope of the assessor’s involvement.
Respondent's Arguments
- The assessor’s role was to assist the Judge in evaluating evidence, not to provide expert evidence requiring disclosure.
- The Trial Judge and Bacon J correctly distinguished between assessors giving evidence and those assisting evaluation, with the latter not requiring disclosure.
- The assessor was suitably qualified and properly appointed, and there was no procedural unfairness or error in how the assessor’s assistance was used.
- The Trial Judge’s refusal to define the assessor’s role in more detail before trial was appropriate to preserve the assessor’s usefulness and flexibility.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Owners of Bow Spring v Owners of the Manzanillo II [2005] 1 WLR 144 |
Disclosure of expert evidence from nautical assessors to parties to ensure fairness. |
Distinguished as inapplicable because the assessor in this case did not provide expert evidence but assisted in evaluation. |
| Global Mariner v Atlantic Crusader [2005] EWHC 380 |
Procedure for nautical assessors providing expert evidence and disclosure obligations. |
Held to be specific to nautical assessors and not applicable to Equality Act assessors assisting evaluation. |
| Ahmed v University of Oxford [2003] 1 WLR 995 |
Broad discretion of courts in appointing assessors and defining their role; disclosure depends on whether assessor provides evidence or assists evaluation. |
Adopted as general guidance for assessing the role and disclosure obligations of assessors in discrimination cases. |
| Hayes v Transco PLC [2003] EWCA Civ 1261 |
Appeal court will allow appeal if lower court decision was wrong or unjust due to procedural irregularity. |
Applied to assess whether the appeal court should overturn the Trial Judge’s and Bacon J’s decisions. |
| Al Rawi v Security Service [2011] UKSC 34 |
Fundamental principle of natural justice requiring parties to know the case and evidence against them. |
Reaffirmed the principle but distinguished its application depending on the assessor’s role. |
| Richardson v Redpath Brown & Co Ltd [1944] AC 62 |
Assessors giving expert evidence in private without disclosure breaches natural justice. |
Used as example of assessor providing evidence requiring disclosure, unlike the present case. |
| Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] EWCA Civ 1599 |
Distinction between advisers assisting understanding and those providing factual opinions requiring disclosure. |
Supported the distinction between assessor roles and disclosure obligations. |
| Watson v GMC [2005] EWHC 1896 |
Advisers who provide evidence or opinions in private without disclosure breach fairness. |
Illustrated the need for openness when assessors provide evidence rather than evaluative assistance. |
Court's Reasoning and Analysis
The Court analysed the role of the assessor appointed under the Equality Act 2010 and County Courts Act 1984, noting that the assessor’s function is not rigidly defined but depends on the discretion of the Trial Judge. The Court distinguished between assessors who provide expert evidence, which must be disclosed to the parties, and those who assist the judge in evaluating evidence, whose advice need not be disclosed unless fairness requires it.
The Court found that the assessor in this case did not provide evidence of fact but assisted in evaluating the evidence regarding proportionality and legitimate aim, which are mixed questions of fact and law. This role was appropriate given the assessor’s experience and expertise in discrimination matters.
The Court rejected the Appellant’s argument that the assessor’s advice should have been disclosed, holding that the Trial Judge correctly applied the legal principles and that no procedural unfairness occurred. The Court also held that the Trial Judge was entitled to decide the scope of the assessor’s assistance and that no evidence suggested the assessor strayed beyond her proper role.
The Court emphasised the fundamental principle of fairness, including the right of parties to know the case and evidence against them, but held that this principle does not require disclosure of evaluative advice given by an assessor assisting the judge unless it introduces a new line of argument or evidence unknown to the parties.
The Court concluded that the Trial Judge’s refusal to disclose the assessor’s advice and his use of the assessor were lawful and fair, and that the appellant failed to demonstrate any procedural irregularity or injustice warranting appellate intervention.
Holding and Implications
The Court DISMISSED the appeal.
The direct effect of this decision is to uphold the possession order made by the Trial Judge and the dismissal of the Appellant’s challenges to the role and disclosure of the assessor’s advice. The Court reaffirmed the legal principles governing the appointment and role of assessors in discrimination cases, clarifying that disclosure obligations depend on whether assessors provide expert evidence or evaluative assistance. No new precedent was set beyond the application of established principles to the facts of this case.