Age assessment and fair litigation procedure

May 3rd, 2016

The Court of Appeal handed down an interesting and wide-reaching judgment last week (26th April 2016) in LB Croydon v Y [2016] EWCA 398. It directly concerns age assessment cases, but the principles enunciated apply to all litigation, private and public.

Y was an asylum seeker who was assessed by LB Croydon for social services needs.  He was assessed as being over 18.  He brought a judicial review age assessment challenge.  The Upper Tribunal  gave directions listing the case for a 4 day hearing.   Five months later, Croydon applied to the UT for an order that the claim should be struck out or stayed unless Y consented to and co-operated fully with (1) a dental examination (including a dental X-ray), (2) a psychiatric examination and (3) an age assessment by two Croydon social workers.

In making this application, Croydon relied on the Court of Appeal’s decision in Starr v National Coal Board [1977] 1 WLR 63.  Starr was a personal injury claim.  Mr. Starr accepted that in preparing its defence, the NCB needed to be advised by a consultant neurologist who had had the opportunity of examining him. But he objected to examination by the particular doctor chosen by the NCB without explaining why.  He said that he was willing to be examined by any other consultant neurologist of similar qualification and experience.  The NCB applied for a stay of all further proceedings until Mr. Starr submitted to an examination by its chosen doctor.  The Court of Appeal upheld the stay that had been granted by the judge.

The UT judge refused Croydon’s application, saying that it was “most unfortunate” that Y’s representatives would not co-operate, but that it would be “too draconian” to stay or strike out the proceedings.  The judge said that Starr did not apply, first, because (unlike Mr. Starr) Y had not conceded that Croydon’s assessments were necessary; and second, because this was public rather than private law litigation.

Overturning the UT judge’s decision, Lord Dyson MR gave the only reasoned judgment, Macur and Lindblom LLJ agreeing.  On the first point, he said at [16] that it didn’t matter whether there was a concession or not: the question was whether the assessments were in fact “reasonably necessary for the proper conduct of Croydon’s defence”.   The UT judge himself had decided that they were.

On the second point, Lord Dyson said at [17] that “there is no basis in principle for confining the Starr principles to private law litigation… The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred [in Starr] applies in any litigation”.

This is important since it makes it clear that the Starr principle is of general application, whether in courts or tribunals. So – as an example only – the first-tier tribunal should apply similar principles in special educational needs cases where a young person’s needs are in question and the authority or school wants to assess them.

Lord Dyson finished by deciding that, though a UT judge had the normal discretion as to case management issues, there was no reason in the current case for the judge to have decided that the steps which Croydon wanted Y to take could not be properly accommodated in the proceedings.

So the outcome was that the unless order sought by Croydon was made.

Peter Oldham QC

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