Madarassy v Nomura International Plc

An appellate court may adjourn a substantive appeal where a new strike-out application raises a collateral issue requiring findings of fact that the appellate court is not equipped to make. An appeal court should not ordinarily conduct a first-instance trial of disputed evidence, since doing so may deprive the unsuccessful party of an appeal. Where alleged disclosure of confidential or privileged information concerns what the litigant personally learned, replacing or restraining the litigant’s legal representatives may not resolve the problem. The application should instead be remitted to a court of first instance with appropriate directions.

The claimant appealed against the Employment Appeal Tribunal’s decision and order of 18 April 2005 in UKEAT/0326/03/ILB. The EAT remitted two of 33 sex-discrimination allegations for further consideration and allowed Nomura’s cross-appeal concerning a health and safety risk assessment. The remaining claims remained dismissed.

Shortly before the Court of Appeal hearing, Nomura applied to strike out the appeal and underlying claims as an abuse of process, alternatively to restrain the Equal Opportunities Commission from acting for or assisting the claimant. The application followed late disclosure of alleged notes and a tape recording concerning a meeting at which confidential and privileged information might have been disclosed. The central issue was whether the Court of Appeal could determine that application itself or should remit it for first-instance determination.

1. Appeal adjourned and strike-out application remitted. The substantive appeal was adjourned pending determination of Nomura’s strike-out application. The application was remitted to the Queen’s Bench Division for an expeditious hearing by a High Court judge, preferably one experienced in the Employment Appeal Tribunal.
2. The application raised a conflict of evidence between the claimant and Mrs Howard about whether a meeting had occurred, what was disclosed, and the claimant’s conduct. The newly produced tape recording could assist in resolving that conflict. The claimant’s conduct might be relevant to whether continuation of the appeal and claim constituted an abuse of process.
3. The Civil Division of the Court of Appeal does not normally hear oral evidence or decide facts. It hears appeals from trials where evidence has been heard and facts determined. If it conducted the first-instance hearing of the strike-out application, the unsuccessful party would lose the opportunity of an appeal.
4. The alleged disclosure could not be addressed simply by requiring the Equal Opportunities Commission or its counsel to cease acting, or by restraining further disclosure to new advisers. The relevant question concerned information allegedly learned by the claimant herself, which she could not be required to unlearn.
5. Directions were made for disclosure, further witness statements, reply evidence, and joint expert examination and transcription of the tape. Costs of the strike-out application were reserved to the judge hearing it. Costs of the substantive appeal were reserved, while the costs thrown away by the adjournment were ordered to be paid by the claimant, with an interim payment of £2,500 within 14 days.

• Court of Appeal (Civil Division): The substantive appeal was adjourned. Nomura’s strike-out application was remitted to the Queen’s Bench Division for first-instance determination.
• Employment Appeal Tribunal: On 18 April 2005, in UKEAT/0326/03/ILB, the EAT remitted two sex-discrimination allegations for further consideration and allowed Nomura’s cross-appeal concerning the health and safety risk assessment finding.
• Employment Tribunal: After a 21-day hearing, the tribunal dismissed 32 of 33 discrimination allegations and the claims for unfair dismissal and victimisation. It upheld one complaint concerning failure to carry out a health and safety risk assessment.