That will probably never happen...............

Every so often you come across a statement of the law and you think that might work in Lincoln’s Inn but not on a wet Thursday afternoon in Croydon!

As I was reading my IRLRs this month I came across the case of SCA Packaging Limited v Boyle [2008] NICA 48 (link below). This case dealt with the question of whether a disability was likely to have a substantial effect. On the question of what did ‘likely’ mean in this context the Court of Appeal came up with this gem:

“The meaning of likelihood under the DDA

[18] What is meant by the words "likely to have a substantial adverse effect" is not entirely clear. The word "likely" may mean probable but the dictionary definition includes "such as might well happen". The meaning to be given to the word when it is used in a statute will depend upon the statutory context. Thus, for example, in Three Rivers District Council v Bank of England (No 4) [2002] 4 All ER 881 in the context of an application under CPR 31.17.(3)(c) relating to disclosure of documents against a non-party on the grounds that the documents were likely to support the case of the applicant or adversely affect the case of one of the other parties, the Court of Appeal held that the word "likely" under the relevant rules meant "may well" rather than "more probable than not". Having regard to the intention of the Civil Procedure Rules a high test requiring proof on a balance of probabilities would be both undesirable and unnecessary. The word 'likely' connoted a rather higher threshold than 'more than fanciful' but a prospect could be more than merely fanciful without reaching the threshold of more probable than not. In Transport Ministry v Simmons [1973] 1 NZLR 359 at 363 McMullin J said:

"An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen. But it must be more than a mere possibility."

[19] The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word "likely" is used in the sense of "could well happen".”

The observations of Michael Rubenstein in the IRLRs as to the origins of this particular meaning of likely were helpful. Nevertheless it left me feeling uncertain as to what this means for the Claimant or the Respondent in the Employment Tribunal. It is relatively easy for a Tribunal to grasp the happening of an event being more likely than not. This is a familiar concept to a Tribunal but what level of proof is required to demonstrate that something ‘could well happen’? In percentage terms is it 30 or 40 or perhaps 45.5?

The matter is made more uncertain as the guidance on the meaning of ‘likely’ in the 2006 DDA Guidance clearly sets out that ‘likely’, in the context of long term, means more probable than not (see DDA Guidance C2).

So the Court of Appeal decision not only conflicts with the Guidance but also sets an uncertain test, which brings me back to the rainy Thursday afternoon in Croydon. You are for the Claimant and you are trying to explain to a Tribunal that although they thought they knew what ‘likely’ means in fact it means something different in the context of this particular matter because………………

Good luck!

Peter D

http://www.bailii.org/nie/cases/NICA/2008/48.html