Madarassy v Nomura International Plc

A claim or appeal may be struck out as an abuse of process where misconduct jeopardises the fairness of the trial, such that a judgment for the offending party would be unsafe or unfair. The risk to a fair trial is highly important and may be decisive, but it is not invariably conclusive. A flagrant attempt to pervert the course of justice may forfeit a party’s right to be heard. Strike-out remains a draconian remedy. It must be proportionate and supported by a compelling reason. A breach of confidence by a former solicitor does not, without more, establish a substantial risk that the litigation has been compromised.

The appellant had brought employment tribunal proceedings against her former employer alleging unfair dismissal, sex discrimination and victimisation. Following extensive Employment Appeal Tribunal proceedings, the case was due to proceed in the Court of Appeal.

The respondent applied for the appeal and the remaining tribunal claim to be struck out after learning that the appellant had met a former solicitor for the respondent and obtained confidential information. The Court of Appeal referred the application to the Queen’s Bench Division to hear oral evidence and make factual findings. The central issues were whether the appellant’s conduct constituted an abuse of process and whether the fairness of the litigation had been substantially jeopardised.

1. Jurisdiction and procedure. The judge considered that the Court of Appeal could exercise its power under CPR 52.9(1)(a), and could exercise the lower court’s powers under CPR 52.10(1), but doubted his own jurisdiction to exercise those powers. He nevertheless had jurisdiction to hear evidence and make findings of fact for the assistance of the Court of Appeal.
2. Applicable principles. Under regulation 15(1)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, and the court’s equivalent power under CPR 3.4(5), proceedings may be struck out for abuse where misconduct jeopardises the fairness of the trial so that a judgment in the claimant’s favour would be unsafe. The categories of abuse are not closed.
3. The risk to a fair trial is a factor of very considerable weight and may often be determinative, but it is not the only factor. A flagrant and continuing attempt to pervert the course of justice may cause a party to forfeit the right to continue to be heard. The remedy remains draconian and must be proportionate to the misconduct. In the context of an appeal, there must also be a compelling reason for striking out.
4. The appellant had received confidential information from the respondent’s former solicitor, but her attendance at the meeting, preparation of notes and possession of a recording did not amount to a campaign of deception comparable with the conduct in Arrow Nominees Inc. v Blackledge. The information obtained did not create a substantial risk that the fairness of the litigation had been compromised, and there was no basis for treating a judgment in her favour as unsafe.
5. The application to strike out the Court of Appeal proceedings and the remaining employment tribunal claim was refused. The matter was referred back to the Court of Appeal. There was no order as to costs before the judge; costs in the Court of Appeal were left to that court.

• Court of Appeal: The Court adjourned the substantive appeal and referred the strike-out application to the Queen’s Bench Division for an expedited hearing involving oral evidence and factual findings.
• High Court (Queen’s Bench Division): The application was dismissed in substance. The judgment and findings were referred back to the Court of Appeal.