Stott v Leadec Ltd

The Employment Appeal Tribunal has power to appoint a litigation friend for an appellant who lacks capacity to conduct the appeal. That power arises from its statutory power to regulate procedure, read with the overriding objective and the case-management provisions of the Practice Direction (Employment Appeal Tribunal – Procedure) 2018. The Tribunal should be guided by CPR Part 21.

Capacity is specific to the litigation and the time in question. Where there is reason to suspect incapacity, the court should investigate it at the first convenient opportunity, ordinarily with medical evidence. It should nevertheless embark on that inquiry carefully and only where clear evidence supports the concern.

The claimant appealed against decisions of the Liverpool Employment Tribunal dismissing his disability-discrimination and unfair-dismissal claims and awarding the respondent costs. Before the listed Preliminary Hearing, counsel acting as amicus raised concerns about the claimant’s capacity to conduct the appeal.

The concerns arose from an earlier medical certificate and litigation-friend appointment in unrelated proceedings, together with counsel’s observations. No capacity concern had previously been raised in the employment proceedings. The central issue was whether the EAT could and should take steps concerning an appellant’s litigation capacity.

1. The Preliminary Hearing was adjourned generally. The EAT ordered a current medical report addressing the claimant’s capacity to litigate this appeal and information about a suitable litigation friend. On receipt, a judge would give further directions, including relisting.

2. Under section 30(3) of the Employment Tribunals Act 1996, subject to the EAT Rules and applicable Practice Direction, the EAT may regulate its own procedure. Appointment of a litigation friend for a person lacking litigation capacity falls within paragraph 13.1 of the Practice Direction (Employment Appeal Tribunal – Procedure) 2018. The EAT should be guided by CPR Part 21 under paragraph 1.8.

3. This construction accords with the overriding objective, common-law fairness and the interpretative obligation in section 3 of the Human Rights Act 1998. Proceeding with an unrepresented person who lacks litigation capacity would undermine fair and effective access to justice.

4. Capacity must be assessed in relation to the particular proceedings and at the relevant time. A prior finding of incapacity elsewhere does not determine capacity in an EAT appeal. However, the earlier certificate, appointment of a litigation friend, and counsel’s concerns together gave reason to suspect incapacity. Medical evidence was therefore required before determining capacity and any consequential orders.

5. The judgment also repeated the need for clearly defined rules regulating protected parties and litigation friends in employment tribunals and the EAT.

• Employment Appeal Tribunal: Preliminary Hearing adjourned generally pending evidence and directions concerning the appellant’s litigation capacity.
• Employment Tribunal, Liverpool: Judgment sent to the parties on 9 July 2018. The Tribunal dismissed the claimant’s disability-discrimination and unfair-dismissal complaints and ordered him to pay £2,000 plus VAT towards costs.