Steven Laidley v Metropolitan Housing Trust Ltd

For assessors appointed in discrimination proceedings, the judge has a broad discretion to decide what assistance is required. An assessor may evaluate the parties’ evidence without normally disclosing the substance of that evaluative assistance. Disclosure is ordinarily required where the assessor supplies additional expert or factual evidence, or introduces a new potentially influential line of enquiry on which the parties lack fair notice and an opportunity to respond. The appointment and the assessor’s expertise may sufficiently define the role; the judge need not prescribe every issue in advance. On a second appeal, the appellant must show that the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity. Speculation that an assessor exceeded the proper role does not satisfy that test.

Metropolitan Housing Trust Ltd obtained a possession order against Steven Laidley, relying on Grounds 12 and 14 in Schedule 2 to the Housing Act 1988. Mr Laidley, who was disabled, defended the claim and brought an Equality Act counterclaim. An assessor was appointed under the Equality Act 2010. The trial judge refused to disclose the assessor’s advice and ordered possession.

Bacon J dismissed two appeals in the High Court: the first concerned disclosure of the assessor’s advice and the second concerned the assessor’s use in evaluating proportionality. The present appeal challenged both conclusions. The central issues were whether disclosure was required and whether the trial judge could use the assessor to assist with proportionality and public sector equality duty issues.

Stuart-Smith LJ gave the judgment, with Nugee LJ and King LJ agreeing. The appeal was dismissed on both grounds.

1. Second appeal and fairness. Under rule 52.21(3) of the Civil Procedure Rules 1998, the appellant had to show that the lower court’s decision was wrong, or unjust because of a serious procedural or other irregularity. The fundamental principle of fairness requires parties to know the case and evidence they must meet, including evidence relied on by the court. Al Rawi v Security Service [2012] 1 AC 531 was cited in support.
2. Role of an assessor. Section 63 of the County Courts Act 1984 and rule 35.15 of the Civil Procedure Rules 1998 give the judge a broad discretion. The role may involve an evidential function or assistance in evaluating the evidence. The guidance in Ahmed v University of Oxford [2003] 1 WLR 995 was adopted and followed.
3. Disclosure. Where an assessor provides additional expert or factual evidence, disclosure is normally required. Where the assessor assists only with evaluating evidence supplied by the parties, disclosure is not normally required. Disclosure may nevertheless be required if the assessor introduces a new potentially influential issue on which the parties lacked notice and a fair opportunity to respond. Bow Spring and Global Mariner concerned nautical assessors acting as court-appointed experts under the Civil Procedure Rules 1998; their guidance did not govern the present assessor.
4. Application. The assessor’s role was sufficiently defined by the purpose of the appointment and her qualifications. There was no basis to infer that she had given evidence, strayed beyond her expertise, or introduced a new line of enquiry. Speculation could not establish procedural unfairness or injustice.
5. Proportionality. The proportionality assessment involved weighing factual and expert evidence. It was therefore open to the trial judge to obtain assistance from a suitably qualified assessor. Whether, and to what extent, assistance was required remained a matter for the judge. No procedural irregularity was shown.

• Court of Appeal (Civil Division): The appeal was dismissed on both grounds.
• High Court (Chancery Division): Bacon J dismissed Mr Laidley’s appeals concerning disclosure of the assessor’s advice and the assessor’s use: [2024] EWHC 2611 (Ch).
• Trial court: HHJ Luba KC ordered possession of the flat after considering the possession claim, proportionality and the Equality Act counterclaim.