Secretary of State for Defence v Carver

An appellate tribunal must give a party a fair opportunity to meet a materially changed case. Where new evidence introduces a substantial and previously unanticipated issue, fairness ordinarily requires an adjournment so that the issue can be investigated and answered. This applies even where the tribunal considers that it can resolve the facts on the evidence already given. On an appeal concerning service-related disability, the tribunal must also consider whether the evidence, including any medical causation issues and competing non-service causes, is sufficient to satisfy the applicable burden of proof.

The Secretary of State appealed, with permission from the President of the Pensions Appeal Tribunal, against the Tribunal’s decision allowing Mr Carver’s claim that his Bipolar Affective Disorder was attributable to service. The appeal concerned the evidential basis for that conclusion, the adequacy of the Tribunal’s reasons, and whether the Secretary of State had been treated unfairly.

At the hearing before the Tribunal, evidence emerged for the first time that Mr Carver had been bullied in service and that the bullying was connected with his brother’s conduct. The Tribunal relied on that evidence, together with the loss of Mr Carver’s eye, to find the requisite service connection.

1. The appeal was allowed. The claim concerning Bipolar Affective Disorder and its connection with bullying was remitted to a fresh Tribunal for directions and a fresh hearing.
2. Article 5 of the SPO governed the appeal. It placed the burden on Mr Carver to raise a reasonable doubt in his favour on reliable evidence.
3. The bullying evidence materially changed the case which the Secretary of State had to meet. Before the hearing, the suggested cause of the disorder had not included bullying in the army. The new case raised medical and causation issues which had not been investigated by either side.
4. The Secretary of State was entitled to investigate whether expert medical evidence supported the suggested contribution of bullying to the onset of Bipolar Affective Disorder; whether the non-service eye injury and its consequences were a dominant cause; whether the disorder would have developed without that injury; and what significance should be attached to the history of enuresis in light of the contemporaneous psychiatric evidence.
5. The Tribunal should have adjourned. It was immaterial whether an adjournment had to be requested under Rule 14 or whether the Tribunal should have offered one of its own motion. Had an application been made, it would have been irresistible. The absence of an application did not cure the unfairness caused by continuing without allowing both sides to consider the new issues.

• High Court (Administrative Court): allowed the Secretary of State’s appeal from the Pensions Appeal Tribunal and remitted the matter to a fresh Tribunal for directions and a fresh hearing.