Hellen v ASDA Stores Ltd

Where a proposed appeal is a second appeal, permission should be granted only where it raises an important point of principle or practice, or another compelling reason. The Court of Appeal will not reopen factual findings or procedural complaints that disclose no error of law. In a discrimination claim, the apparent harshness of dismissal does not establish less favourable treatment because of race, sex or disability. A litigant’s dissatisfaction with an expert’s opinion does not ordinarily justify replacing the expert or delaying trial. If genuinely new medical records may affect the opinion, they should be put to the existing expert with their significance identified. Both applications for permission were refused.

Two applications for permission to appeal were before the Court of Appeal. In the employment case, the Employment Tribunal dismissed claims concerning the claimant’s dismissal for race, sex and disability discrimination, while upholding one separate sex discrimination complaint; the Employment Appeal Tribunal dismissed her appeal.

In the personal injury case, the claimant sought to replace her medical expert and adjourn the assessment-of-damages trial. District Judge Trent refused the application, and His Honour Judge Marr-Johnson dismissed the appeal. The issues included whether the proposed grounds disclosed an appealable error, whether further medical records justified replacing the expert, and whether the procedure was unfair or contrary to Article 6.

Both applications were refused. Lady Justice Hale held that the proposed grounds disclosed no realistic basis for appellate intervention.

1. Employment case. The Employment Tribunal had made detailed factual findings after considering the evidence. Complaints that particular findings were unsupported, or that the tribunal had misunderstood the evidence, could not succeed merely by challenging fact. The Court of Appeal had no basis to go behind those findings. The remaining complaints concerned the employer’s processes or the tribunal’s procedure. They were either inconsistent with the findings, had already been addressed below, or should have been raised at the time.
2. The proceedings concerned discrimination in relation to dismissal, not the merits of an unfair dismissal claim. The relevant question was whether the claimant had received less favourable treatment because of race, sex or disability. There was no evidence that she would have been treated differently on those grounds. The perceived harshness of dismissal did not disclose a point of law or give the proposed appeal a real prospect of success.
3. Personal injury case. The medical experts had considered the available records and agreed their analysis. The further material relied upon did not identify records from the critical period after the accident or any material change in the experts’ opinions. The claimant’s disagreement with the professional assessment, or her description of it as speculative, did not justify replacing the expert. The modest value of the claim, the cost of another report and the previous adjournments also supported refusal of the application.
4. If genuinely fresh records had been obtained, they could be put to the existing expert. The claimant would need to show when they were obtained and identify the pages containing material additional information. The second-appeal threshold required an important point of principle or practice or another compelling reason, neither of which was present. The joint hearing was sensible, the adjournment issue had become academic, and there was no denial of access to court or other procedural unfairness. A transcript was directed to be made available to the parties at public expense.

1. Court of Appeal (Civil Division): Lady Justice Hale refused both applications for permission to appeal.
2. His Honour Judge Marr-Johnson, Mayor’s and City of London County Court: dismissed the claimant’s appeal from the refusal to replace her medical expert and adjourn the trial.
3. District Judge Trent, Mayor’s and City of London County Court: refused the application to replace the expert and directed that the trial proceed after the appeal.
4. Employment Appeal Tribunal: dismissed the claimant’s appeal against the Employment Tribunal’s decision.
5. Employment Tribunal: dismissed the discrimination claims relating to dismissal, but upheld one complaint of sex discrimination concerning detriment.