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EAT: Tribunals should adjourn for medical assessment where doubt arises about a witness's capacity; failure to follow Equal Treatment Bench Book was unfair (Easton & Co; Easton v Donlon)

Published on: 14 August 2024

Published by a LexisNexis Employment expert
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Adjournment needed for medical expert to assess capacity of witness to give evidence ((1) Easton & Co (2) Justin Easton (on behalf of the estate of Leslie Easton deceased) v Donlon) (1) Leslie Easton & Co Ltd (2) Justin Easton (on behalf of the estate of Leslie Easton deceased) v Donlon [2024] EAT 126 What are the practical implications of this decision?

Here, the respondents’ advocate faced a dire predicament when his client suddenly repudiated the document intended to be his evidence-in-chief. The client:

  • disputed that he authored the letter in the bundle designated as his evidence-in-chief
  • rejected having previously agreed with his representative (and the other director) that this letter would serve as his evidence-in-chief
  • claimed he had never read it before taking the oath
  • insisted the contents were untrue and that anyone asserting otherwise was lying

Given the client’s age and a prior stroke affecting memory and cognitive function, the representative sought an adjournment so a medical expert could evaluate his capacity to give evidence. That request was wrongly refused, despite the clear need for a capacity assessment in these circumstances...

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