When claims, or most commonly counterclaims, are brought under the Equality Act 2010 the court may appoint an Equality Act assessor with specialist expertise to assist with evaluating factual evidence. They cannot determine the outcome of the case.
The High Court has considered the scope of their role further in the recently decided case of Laidley v Metropolitan Housing Trust Limited (2024) EWHC 2611 (Ch).
Mr Laidley was the defendant to possession proceedings brought by his landlord on the basis of alleged antisocial behaviour. He was considered to lack capacity to conduct the proceedings and was assisted by the Official Solicitor as his litigation friend. Owing to Mr L’s diagnosis of a delusional disorder, representatives for the defendant raised an Equality Act defence.
The trial judge sat with a court appointed Equality Act assessor. On the first day of the trial, counsel for Mr L made an application that the court, first, define the role of the assessor and, second, that any advice they provide be given in open court. The application was refused by the judge. Mr L sought to appeal that decision and the subsequent making of a possession order.
On appeal, counsel for the defendant raised that, to ensure fairness and to be certain that the assessor had properly limited their role to only evaluating that evidence which was already before the court, their advice should be disclosed to the parties.
Conversely it was determined that the role of the assessor had been limited to assisting the judge ‘in the evaluation and the assessment of the evidence’, and not to provide factual or expert evidence themselves. Furthermore, there was nothing in the judgment to suggest that the judge had considered evidence from persons other than the parties to the case. On that basis, the High Court dismissed the appeal and held that disclosure of the assessor’s advice was not required.
Interestingly, the appeal judge felt it was ‘not possible to set out any universal rule as to the nature of the assistance that assessors will provide to the court and the extent to which disclosure of their advice and evidence will be required’. CPR 35.15 offers wide discretion when employing the skills of an assessor and judges will need to determine how and when they are best used. Clearly this will remain an area of scrutiny. For the time being at least, provided the function employed is that of the evaluation of evidence as opposed to the providing of evidence itself, disclosure of advice shall not be required.
Permission to appeal to the Court of Appeal has been sought.
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