Laidley v Metropolitan Housing Trust Ltd (2025) EWCA Civ 448

This is a second appeal from the High Court’s appeal judgment that we noted here. The issue was the use of and non-disclosure to the parties of an Equality Act assessor’s advice to the Judge in proceedings.

The matter arose out of possession proceedings on grounds of anti-social behaviour. The tenant, Mr L, through his litigation friend, the Official Solicitor, had raised Equality Act 2010 issues in his defence. The Court had appointed an assessor to sit with the Judge at the start of trial. Mr L had applied for the role of the assessor to be specified, and the assessor’s advice to be given in open court. This was refused, and the subsequent appeal dismissed.

Mr L appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal on the disclosure of the assessor’s advice.

In summary:

i) The role of the assessor in this case was suitably and sufficiently defined;

ii) Where an assessor’s contribution is to the evaluation of the evidence in the case, no obligation of disclosure would normally be required;

iii) Where an assessor goes beyond contributing to the evaluation of the evidence and either (a) provides additional evidence or (b) otherwise gives rise to a new line of enquiry of which the parties had not had proper notice and a fair opportunity to respond, disclosure is required;

iv) The principles set out in (ii) and (iii) represent the normal position, which may need to be adjusted in a particular case if there is a compelling reason to do so;

v) There is no reason to go behind the Judge’s decision on Mr Laidley’s application for disclosure or his explanation in [10]-[11] of his trial judgment; and there is no basis for any speculation that the assessor in the present case either gave evidence or otherwise gave rise to a new line of enquiry.

Mr L’s second ground of appeal was that the Judge had had the assessor’s advice on issues of proportionality and legitimate aim, where she could not properly balance the competing interests of the disabled tenant and the housing association landlord.

This was also dismissed by the Court of Appeal.

Although the PSED defence raised separate issues, Bacon J was correct to say that the central disputed question was the proportionality of MHT’s actions in relation to Mr Laidley and that the question was relevant to his Defence and Counterclaim alleging discrimination contrary to various provisions of EA10. Turning to the PSED, the Trial Judge was entitled to take the view that the PSED assessments raised proportionality issues. I can see no reason to conclude that the assessor was not able to contribute to issues of proportionality. At the same time, whether and the extent to which she was asked to contribute was a matter for the Judge. It would, in my judgment, be unjustifiably over-prescriptive to hold that the Judge was either obliged to seek her assistance or obliged not to. This case is a paradigm example of one where the assistance required and sought by the judge is for the judge to determine; and it will be for the judge to decide whether the contribution of the assessor is helpful or not.

Appeal dismissed.