At the substantive hearing, the respondent made a successful adjournment application based on late production of a psychiatric report by the claimant. It was received a mere 3 days before hearing which was due to last for two weeks.

The adjournment was granted to allow the respondent to instruct its own psychiatrist but costs against the claimant and a wasted costs order against the representative were also sought. There was a conflict of evidence between the claimant and her representative, but the respondent was effectively oblivious as to the psychiatric evidence being relied on. As well as this, the claimant accepted that a number of drafts of the psychiatric report were passed back and forth with the Doctor which her representative was unaware of.

Whilst they blamed each other, the tribunal held that the claimant failed in her responsibility to keep her representative abreast of developments in relation to medical evidence. However, as the representative knew the claimant was being medically assessed it was also incumbent on him to seek updates as to the position and also to provide a copy of the report to the respondent once he received it. Costs and wasted costs totalling almost £4,000 were ordered against the claimant and the representative, to be paid in equal amounts.

Practical Lessons

The respondent was clearly vindicated in applying for costs and wasted costs in this case as there was effectively an ‘ambush’ style service of medical evidence three days before hearing. The claimant made an argument based on the fact that it had provided the respondent with redacted GP notes and a short GP report that briefly alluded to a psychiatric assessment to be carried out. The claimant submitted, it appears from the decision, that it was then up to the respondent to look further into the actual medical position.

The tribunal firmly rejected this contention, stressing that in a disability discrimination case the burden falls clearly on the claimant and there is no duty on a respondent to ‘delve’ into such matters. Respondents who have been ‘ambushed’ by late production of medical reports and wish to instruct their own expert may not only seek an adjournment, but can seek costs if the other side has acted ‘unreasonably’. This is not necessarily limited to the claimant alone but, as here, can be against the representative if the blameworthy conduct goes both ways.