London Borough of Croydon v Y

Where an examination is reasonably necessary for the proper conduct of a party’s defence, the court may require cooperation or stay or strike out the proceedings. The relevant principles apply in public-law judicial review where the court must hear evidence and determine disputed facts. A refusal is unreasonable unless supported by reasonable grounds. Case-management concerns justify refusal only where they establish significant prejudice; a speculative risk of delay or adjournment is insufficient. Objections to the reliability of an age-assessment method are ordinarily matters for the substantive hearing.

Y challenged Croydon’s assessment that he was over 18. The Upper Tribunal directed a fact-finding hearing and permitted expert evidence. Croydon applied for the claim to be stayed or struck out unless Y consented to dental, psychiatric and further social-worker assessments. UT Judge McGeachy refused the application, regarding the remedy as too drastic and distinguishing Starr v National Coal Board. Croydon appealed. The central issues were whether the Starr principles applied to this public-law fact-finding claim and whether case-management considerations justified refusing the order.

Appeal allowed unanimously. The Master of the Rolls delivered the judgment, with Lady Justice Macur and Lord Justice Lindblom agreeing. The Upper Tribunal judge should have made the order requiring Y to consent to the three requested assessments.

1. The principles in Starr v National Coal Board [1977] 1 WLR 63 recognise both the individual’s right to personal liberty and the opposing party’s fundamental right to defend itself, including freedom to choose its expert witnesses. Where an examination is reasonably necessary for the proper conduct of the defence, a request for examination by the chosen expert is reasonable unless the other party has reasonable grounds for objecting.
2. The concession in Starr that examination was necessary enabled that court to proceed on that basis, but was not essential to the reasoning and did not limit the principles to cases involving such a concession. The judge here had to decide whether each proposed examination was reasonably necessary.
3. There was no principled basis for confining the Starr principles to private-law claims. They may apply in public-law judicial review where the court hears oral evidence and must determine disputed questions of fact. The age-assessment issue was a question of fact for the court to determine on the evidence, consistently with R (A) v Croydon London Borough Council [2009] UKSC 8.
4. Procedural non-compliance or litigation conduct could justify refusing the order only if it caused significant prejudice. If the order would jeopardise the hearing date, that might be a sufficient reason. But the possibility of an adjournment, particularly where the evidence was uncertain, was too speculative. The overriding objective in Civil Procedure Rules CPR 1.2(a) did not support refusal on that basis.

Y’s refusal was unreasonable, and the proposed order was reasonably necessary to enable Croydon to defend the challenge. The alleged controversy or unreliability of dental X-ray age assessment was not a reason to refuse the order; its reliability could be examined at trial.

1. Court of Appeal (Civil Division) — Croydon’s appeal was allowed. The court held that the order sought should have been made.
2. Upper Tribunal (Immigration and Asylum Chamber) — UT Judge McGeachy refused Croydon’s application to stay or strike out the age-assessment challenge unless Y consented to the requested examinations.