England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Levy)

		Royal Courts of Justice Strand London WC2 Tuesday, 18th December 2001

Tuesday, 18th December 2001

1. LORD JUSTICE PETER GIBSON: I will ask Wall LJ to give the first judgment.
2. LORD JUSTICE WALL: Dr Kovacs renews her application for permission to appeal against an order of the Employment Appeal Tribunal (EAT) in a constitution presided over by His Honour Judge Levy and promulgated on 1st December 2000. The EAT on 1st December dismissed Dr Kovacs' appeal against the decision of the Employment Tribunal (ET) sitting at Stratford and promulgated on 30th July 1999 that she should pay the taxed costs of the Second Respondent, whom I shall identify shortly.
3. However, the EAT on 1st December 2001 also refused Dr Kovacs' permission to amend her notice of appeal to introduce a number of complaints about the conduct of the hearing before the ET. She wishes to advance the proposition that she did not receive a fair hearing as is required by Article 6 of the European Convention on Human Rights and Fundamental Freedoms and, in particular, that she was prevented from giving oral evidence before the Tribunal.
4. On 15th November this year my Lord, Peter Gibson LJ, gave Dr Kovacs permission to appeal again the order that she pay the taxed costs of the second respondent but refused her permission to raise issues under Article 6. Dr Kovacs now, through counsel Mr Sykes, renews her application for permission to appeal against the EAT's refusal to permit her to amend her notice of appeal to introduce the Article 6 arguments.
5. Before I come to the points taken by Mr Sykes, I propose to sketch in the background.
6. The proceedings have become complex, but for present purposes it is sufficient to say that by her form IT1, dated 20th January 1998, Dr Kovacs claimed unfair dismissal, sexual discrimination and race discrimination against two bodies, Queen Mary and Westfield College (which is the successor to the St Bartholomew's Medical School) and the Royal Hospital NHS Trust, the second respondent.
7. The subsequent history of the matter is neatly summarised by the judgment given in the EAT on 17th April 2000 at the preliminary hearing of Dr Kovacs' appeal against the decision of the ET. That was a constitution presided over by Mr Commissioner Howell QC. He summed up the background in this way:

"3.Dr Kovacs held what was described as an honorary position as Lecturer at St Bartholomew's which she had been given in order to permit her to carry out research at the hospital involving the use of an instrument called a haemostatometer. At all times it had been expressly agreed that this position would be `unfunded' in the sense that the medical school and the hospital would not be responsible for funding money to pay Dr Kovacs' remuneration, but she would arrange this herself by obtaining research funds from other sources and in particular commercial sources.

4.The appointment at the hospital took the form of a series of fixed term contracts, of which all except the last included an express waiver by Dr Kovacs of her rights to make a complaint of unfair dismissal to an Employment Tribunal when her fixed term appointment came to an end. The last such contract Dr Kovacs failed to return with a signed waiver. The hospital failed to spot this or do anything about it, with the consequence that the Tribunal held that when her final fixed term contract came to an end and was not renewed that amounted to a `dismissal' of her by the medical school (the first Respondent) entitling her to a reduced basic award of some £1,500 from it.

5.However, that was by no means the only, or indeed the major battle ground in what were protracted proceedings by Dr Kovacs against the two institutions. The result of the Tribunal's deliberations after, as we have said evidence over a total of thirteen days at the effective hearing of the appeal and lengthy earlier interlocutory hearings at which the issues had been refined and debated, was that all her claims of sexual discrimination and racial discrimination against both of the institutions were dismissed.

6.The appeal before us is not concerned with the Tribunal's decision that those complaints were unjustified, but only with the order for costs which the Tribunal made at the conclusion of the proceedings, when they directed Dr Kovacs to pay the sum of £500 towards the costs of the first Respondent Queen Mary and Westfield College, and `costs to be taxed if not agreed' as they termed it, by her to the Royal Hospitals National Health Service Trust."

8. It is, I think, significant that this preliminary hearing was on 17th April 2000, when the Employment Appeal Tribunal was concerned only with the issue of costs.
9. The unanimous decision of the ET, on 30th July 1999, which underlies this latest litigation is again of importance in the light of the points which are taken by Dr Kovacs. As indicated by the Commissioner, all her claims of unlawful direct race and sex discrimination were dismissed. She received the sum of £1,588 compensation in relation to unfair dismissal. She was ordered to pay £500 costs towards the costs of the first respondent. Her claims of unlawful race and sex discrimination (both direct and by way of victimisation) against the second respondent failed and were dismissed and finally - and this is the point which forms the subject of the permission given by my Lord - the applicant was ordered to pay the taxed costs of the second respondent, which we are told in the papers amount to something in excess of £60,000.
10. The decision of the ET is supported by extended reasons which occupy some 65 pages of single space typescript, and it is clear to me that the Chair of the Tribunal, Ms Gay, went to enormous trouble, not only in the reasons which the Tribunal gave for its decision, but in ensuring that the issues were clearly identified and that Dr Kovacs, who was represented by her husband at the Tribunal, was able to put before the court in writing details of the claims she was making.
11. Most unusually in my experience, Ms Gay called a specific directions hearing in order to define the issues and to discuss the conduct of the hearing. After that hearing Ms Gay wrote a letter to the parties which spells out in great detail the matters that were discussed and the matters that were agreed. In the light of Dr Kovacs' first and principal complaint, namely that her rights were breached under the Human Rights Act and the Convention because she was not permitted to give oral evidence, it is, I think, of some significance to look at the content of the letter which Ms Gay wrote. It, again, runs to a number of pages and in paragraph 6 it says this:

"6.Exchange of witness statements has occurred and the Respondents were concerned that the Applicant had not produced any statement by herself. The Applicant replied to this, through her representative, that she was not going to give evidence and that there was no accidental oversight or omission. Her representative assured the Chairman that the Applicant understood the significance of giving oral evidence and that it was a considered decision that she would not do so. The Chairman pointed out that this should not be seen as a tactical manoeuvre which she would later seek to change, and received an assurance that this was not the case.

When the matter came before the Tribunal, after some additional correspondence, an immediate application was made by Dr Kovacs (through her husband) to put in a statement and to give evidence.

Once again, the Chair of the Tribunal deals with this in great detail in the course of her lengthy judgment. In paragraph nine she records the fact that there had been the previous hearing, that there had been a discussion about Dr Kovacs giving evidence and the letter which was subsequently written. Dr Kovacs subsequently wrote to the Tribunal objecting to the inference she had drawn and stating that the suggestion she would fail to produce a witness statement on a tactical basis was offensive. She also wrote to the respondent saying that she was not giving evidence because she did not wish to be cross-examined. The Tribunal recorded, as was the case, that in June 1997 she had been a witness as a party in a long High Court case and had then been cross-examined, so she had first hand experience of the process and could make an informed decision. In the event, the Chair of the Tribunal allowed in a very lengthy 35-page opening statement which was read. A number of witnesses were called on Dr Kovacs' behalf, as indeed they were called on the respondent's behalf.

The Tribunal clearly dealt with the matter, as I indicated earlier, with the most detailed care and attention and, speaking for myself, I can see absolutely no basis upon which there can be any complaint about the Tribunal or the conduct of the Chair. Dr Kovacs had the opportunity to give evidence. She expressly declined to put in a statement. She was written to in the clearest possible terms and, in my judgment, even if she had some argument that her rights had been breached - which I do not think she has - there is absolutely no evidence that those rights or breaches of rights carried through into the Tribunal hearing, because the Tribunal patently conducted a fair and very careful hearing. It seems to me, therefore, that this, which was the first ground of appeal essentially argued by Mr Sykes, has no prospect of success whatsoever and certainly should not go forward to an appeal in this court.

I will go on with the history in order to reach the second point which is raised by Mr Sykes on Dr Kovacs' behalf.

Dr Kovacs, as the rules provide, had an absolute automatic right of appeal to the EAT against the decision of the ET. Of course the EAT is a tribunal of law only, and it has a very sensible system, which operated in this case, of holding preliminary hearings in cases in order to ascertain whether or not there is an arguable point of law. If the EAT is satisfied that a point of law exists, the case goes forward to a full hearing. If it is not, the appeal is dismissed at that stage.

In this case Dr Kovacs' notice of appeal to the EAT raised only one issue, which was the issue of costs. There is a rather delphic reference in the final paragraph of the notice of appeal which says:

"Please see the further grounds for appeal as set out in the attached document `the Applicant's comments on the Tribunal's decision'."

12. However, we have not been provided with that document. The point is that, of course, the original notice of appeal dated 9th September 1999 was in time, and when the matter came before Mr Commissioner Howell QC, as I have already indicated, the only point argued was the question of costs.
13. The EAT at the preliminary hearing considered the arguments advanced on costs and decided that Dr Kovacs' appeal should go forward on one point only, namely whether or not the EAT had adequately addressed the question of Dr Kovacs' means and the potential effect on her of an open-ended order for costs made against her. An amended notice of appeal dealing with this point was duly filed on 21st April 2000. It appears that between the date of the preliminary hearing and the date of the substantive appeal on 1st December, Dr Kovacs drafted amendments to the notice of appeal, and at the hearing before Judge Levy, chairing the EAT, she endeavoured to introduce that notice of appeal and persuade the EAT to hear her case in relation to it.
14. Judge Levy dealt with this matter in the judgment of the EAT. He says this:

"6.At the commencement of the hearing this morning, we were asked to deal with a further application by the Appellant, who appeared in person, before the earlier Tribunal. Her husband appeared for her, he has sat by her side, to allow amendments to the Notice of Appeal to be made, which would bring in the matters which had largely been excised by the judgment of the Commissioner and his colleagues in the preliminary hearing. In that connection, we have been referred by Mr Brown, who appears for the Second Respondent, to the decision of this Court in United Arab Emirates v Abdelghafar [1995] ICR 65 where Mummery J [as he then was] drew attention to time limits on appeals, and made it quite clear that the rules of the Employment Appeal Tribunal were to be observed.

7.In our judgment, it is not just a matter of the rules being observed, but the Appellant has had one bite of the cherry, and now wishes to have another. There has been reference made to her human rights being denied; we are not satisfied that they were denied. The proposed Notice of Appeal is very many days out of time, indeed weeks out of time, and, apart from the fact that the same grounds have largely been covered in the earlier appeal, we do not think it appropriate to grant leave out of time for the other matters to be added, and insofar as that was before us, we do not give leave for the Notice of Appeal to be amended."

15. The Tribunal then went on to consider Dr Kovacs' appeal on the question of costs and dismissed the appeal, for reasons which I need not investigate as my Lord, Peter Gibson LJ, has explained the reasons for permission to appeal on the substantive costs point.
16. Speaking for myself and having read the papers, I take the view that Dr Kovacs' attempts to revive the Article 6 arguments, which the EAT in my judgment rightly refused to entertain, is quite unacceptable and should not be permitted. Firstly, I am quite satisfied, as I have already stated, that the ET hearing in June 1999 was entirely fair to Dr Kovacs and that no point of law or breach of human rights arises from its decision on the facts. Second, it is to be noted that no Article 6 arguments were advanced by counsel at the preliminary hearing of the appeal presided over by Commissioner Howell. The attempt to reintroduce them at the hearing before Judge Levy was, in my judgment, rightly rejected.
17. Any system of law must have proper time limits for filing notices of appeal. The time limits laid down by the EAT are generous but are there to be obeyed. In my judgment it is not in any sense a breach of human rights if the Tribunal refuses to allow the notice of appeal in these circumstances to be amended.
18. My Lord has given permission to appeal on the question of the costs order in favour of the second respondent and has refused permission on the Article 6 points. I respectfully agree with him on both aspects and with his reasoning. In my judgment Dr Kovacs should not have attempted to re-argue the Article 6 points but should concentrate on the one point where she has an arguable case, namely the issue of costs.
19. I also note that in the recent skeleton argument put forward by Mr Sykes on Dr Kovacs' behalf, he has invited the court to stay the substantive order for costs made in favour of the second respondent. Speaking for myself and subject to anything my Lord wishes to say on the point, I would allow that part of the application and direct that the enforcement of the order for costs be stayed pending the hearing of the appeal. Otherwise I would refuse the application.
20. LORD JUSTICE PETER GIBSON: I agree.
Order: As above.