England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		On A Reference From The Court Of Appeal Civil Division Royal Courts of Justice Strand, London, WC2A 2LL
		06/04/2006

Mr Justice Bean :

1. This is a most unusual application. Andrea Madarassy was employed by Nomura International Plc (Nomura) as a senior banker and member of the Equity Capital Markets Department from 17 January 2000 until 22 November 2000 when Nomura terminated her employment by reason of redundancy. On 14 December 2001 she presented an originating application to an employment tribunal complaining of unfair dismissal, sex discrimination, victimisation and contravention of the Equal Pay Act (the last head of complaint being subsequently withdrawn).
2. The hearing before the tribunal occupied 21 sitting days between 11 November and 12 December 2002. Ms Madarassy was represented by Suzanne McKie of Counsel, instructed by Lawrence Graham, solicitors. The Respondents were represented by Paul Goulding QC leading Clare Weir, instructed by Howard and Howard, solicitors. By its unanimous decision sent to the parties on 18 February 2003 the tribunal dismissed the complaint of unfair dismissal and 33 particularised allegations of sex discrimination save for one concerning failure to carry out a health and safety risk assessment. Some of the discrimination claims were rejected as being out of time, and the tribunal declined to exercise its discretion to extend time on the "just and equitable" ground set out in the Sex Discrimination Act. Other complaints were rejected on the merits. An application for review of the decision was dismissed.
3. On 31 March 2003 Ms Madarassy filed a notice of appeal of her own composition at the Employment Appeal Tribunal (EAT). There are 107 grounds of appeal stretching over 27 pages, with an appendix relating to alleged breaches of Article 6 of the ECHR and a request to admit new evidence. By order made on 9 May 2003, HHJ Peter Clark directed an ex parte preliminary hearing.
4. On 23 September 2003 amended grounds of appeal were lodged signed by Andrew Clarke QC. These replaced Ms Madarassy's 107 grounds of appeal with a mere 33 grounds. As a result of those amended grounds being lodged the hearing date listed for 29 September 2003 was vacated. An inter partes hearing took place on 3 February 2004 before the then President, Burton J, and two lay members. Mr Clarke QC, instructed by Lawrence Graham, appeared for Ms Madarassy; Mr Goulding QC, now instructed by Osborne Clarke, for Nomura. The appeals on unfair dismissal and victimisation were dismissed. The heads of appeal relating to sex discrimination, including the burden of proof, were reduced to five which were allowed to proceed to a full hearing. The hearing occupied four sitting days from 13 to 16 July 2004 before Nelson J and two lay members. Mr Clarke QC and Miss McKie appeared for the appellant, Mr Goulding QC and Ms Weir for the respondent. In a judgment handed down on 16 December 2004 the EAT allowed the appeal to the limited extent of remitting three specific issues to be reconsidered by the same tribunal pursuant to Sinclair Roche and Temperley v Heard and Fellowes [2004] IRLR 763. The remainder of the appeal was dismissed. A cross appeal by Nomura on the health and safety risk assessment issue was allowed and that issue also remitted to the tribunal. Ms Madarassy was ordered to pay costs in the sum of £2,000 relating to grounds of appeal originally relied upon but later abandoned.
5. On 17 January 2005 the Equal Opportunities Commission (EOC) came on the record replacing Lawrence Graham as the Appellant's solicitors. By a notice of appeal settled by Karon Monaghan of Counsel permission was sought to appeal to the Court of Appeal. At an oral hearing before Waller and Mummery LJJ on 31 August 2005, at which Ms Monaghan was heard ex parte, the Court of Appeal granted permission on most but not all of the grounds of appeal. The hearing of the appeal was listed for 22 February 2006.
6. On 10 February 2006 Clare Hockney, the Principal Legal Officer at the EOC with conduct of the appeal, wrote to Ms Parry of the Respondents' solicitors as follows:

"I attach a note which has been disclosed to us by our client. Both Counsel and I have read it and we consider that it is appropriate to disclose it to you for your information and consistent with our obligation to do so."

The enclosed document, of three pages, was headed "Minutes of a meeting with Gillian Howard, ex-solicitor of Nomura on 30 June 2003." (Mrs Howard is not, in fact, a solicitor, but a "consultant" to the firm of Howard and Howard; nevertheless, there is no dispute that she was the person with conduct of Nomura's case before the employment tribunal.)

7. Ms Madarassy had sent this document to Ms Hockney for forwarding to Ms Monaghan on 1 or 2 February 2006. Ms Hockney very properly took advice from the Law Society, which was that she must either obtain her client's consent to disclosure to Osborne Clarke and give such disclosure or withdraw from the case. Ms Madarassy gave her consent, and the document was disclosed accordingly.
8. On 20 February 2006, two days before the hearing date of Ms Madarassy's appeal Osborne Clarke applied to the Court of Appeal for an order that the appeal and the Employment Tribunal (ET) claim itself be struck out and that Ms Madarassy be ordered to pay Nomura's costs in the Court of Appeal and before the EAT on an indemnity basis. They also sought an injunction (if the litigation was not to be struck out in its entirety) restraining the EOC from representing or advising or otherwise assisting Ms Madarassy. The application notice and the evidence in support were served "as a matter of professional courtesy" on Mrs Howard but she was not made a party to the application. She prepared a signed witness statement and sent it to the Court of Appeal and to both parties' solicitors and counsel.
9. On 22 February 2006 the Court of Appeal (Mummery and Scott Baker LJJ and Sir Charles Mantell) ordered that "the application for permission to strike out the appeal and the claim be adjourned to an expedited hearing before a judge of the Queen's Bench Division with a time estimate of two days (to include oral evidence) and with a recommendation that a judge with experience of sitting in the EAT, if available, should hear the application". They directed that the substantive appeal be adjourned to be re-fixed as soon as possible following determination of the Respondent's application to strike out; and further ordered Ms Madarassy to pay the costs of and occasioned by the adjournment of the appeal.
10. There is no longer an issue about representation. Ms Madarassy appeared in person on the application before me, although with the benefit of a skeleton argument prepared by Ms Monaghan for the strike-out hearing in the Court of Appeal. If the substantive appeal is allowed to proceed arrangements have been made for Ms Madarassy to be represented by fresh solicitors (Palmer Wade) and by Ms McKie, who appeared in the ET and EAT but has not read nor been told the contents of the "Minutes" of 30 June 2003. I should add that at the hearing before me Mr Goulding QC did not suggest – and in my view there would have been no basis for suggesting – that the EOC or Ms Monaghan have behaved with anything less than complete integrity in an unusual and difficult situation. The same is true of Lawrence Graham, Ms McKie and Mr Clarke QC during their involvement with the case.

The meeting of 30 June 2003

11. Nomura's application is based on what came to light in February 2006 about a meeting which Ms Madarassy says took place between her and Mrs Howard on 30 June 2003. There is a dispute between Ms Madarassy and Mrs Howard as to whether this meeting took place at all.
12. During May 2003 Mrs Howard, on behalf of Nomura, sought an extension of time for lodging an Answer to Ms Madarassy's appeal to the EAT. By letter of 21 May 2003 to Mrs Howard, Ms Madarassy refused. She added :-

"Please excuse me for my standpoint, which is certainly not directed against Howard and Howard. You may appreciate to know that I am admirer of your expertise and skill with which you have been defending Nomura International Plc, who are in the wrong. Unfortunately I am a victim of your skill and the unlawful tactics of the Respondent……..I hope you understand my position and no offense to Howard and Howard in my rejection of your request."

13. On 3 June 2003 Ms Madarassy wrote to Mrs Howard:-

"Dear Gillian,

I am astonished to hear that Nomura terminated your mandate! I wish to express my sympathy, even if this new development appears to be good news for me.

I many times expressed my sincere wish to have such brilliant solicitors, who are so dedicated to and prepared to fight tooth and nail for their client, as Howard and Howard. As referred to in my last letter to you, it is my express opinion that the outcome of my case would have been 180 degrees different if you had been my solicitors.

I hope to be able to meet you for a cup of tea without any commitments some time."

Mrs Howard replied the same day as follows:-

"Dear Andrea

Your very kind words are most welcome.

I have admired your expertise and professionalism from the start.

You are a woman with guts and determination and you are a lovely and loving mother.

May G-d bless you and give you the strength to continue and win.

I would be delighted to meet you at any time for a cup of tea. Perhaps give me a ring to arrange it.

I can obviously talk a little more freely then!"

14. Miss Madarassy replied the next day saying that she was engaged in the middle of a heavy interview and travel schedule until the end of the following week but would call on or around 16 June. On 6 June she wrote a more formal letter to Howard and Howard asking to be informed officially about the change of solicitors.
15. It appears from other evidence that the retainer of Howard and Howard had been terminated on 30 May 2003. During June 2003 Osborne Clarke formally went on the record as Nomura's solicitors in the EAT.
16. Ms Madarassy's evidence is that she met Mrs Howard for lunch on 30 June 2003. She went first to the offices of Howard and Howard and from there to a nearby Italian restaurant. She wrote afterwards to Mrs Howard in the following terms:-

"Dear Gillian

Thank you for the lovely lunch and your gesture of goodwill yesterday. I understand and respect your limitations and assure you of my discretion. I am very pleased about the opportunity to maintain at least a private relationship with you."

17. Ms Madarassy also drew up "minutes" of the lunch meeting. The original version was composed the same day and runs to just over three pages; the revised version made on 28 August 2003 is slightly shorter; and a third version made on 1 February 2006 is shorter still. Since the basis of Nomura's application is that Ms Madarassy herself has acquired and used information which she should not have had, it is logical to set out the points covered in the fullest version, namely the original one. I will do so in a way which does not prevent those who read this judgment from further involvement in the substantive litigation.
18. The minutes record the following topics of discussion:-

i) How Nomura came to "sack" Howard and Howard.

ii) The views of Mr Goulding QC, or of Mrs Howard, or both, on (a) the unfair dismissal claim (b) whether Nomura had dealt properly with Ms Madarassy's grievance before the termination of her employment (c) the ET's handling of the burden of proof issue in the sex discrimination claim (d) in very general terms, the case as a whole.

iii) The attitude of Osborne Clarke, Nomura in-house lawyers or both towards settlement; and the extent of one individual's authority to settle.

iv) The attitude of two of Nomura's witnesses to a rehearing.

v) The attitude of Nomura to publicity.

vi) Mrs Howard's views of the solicitors and counsel acting for Ms Madarassy.

19. When the present application was issued in the Court of Appeal a copy of the evidence in support was served on Mrs Howard on 20 Feb 2006. That evening she sent copies of a signed witness statement to the Court and to the parties' legal representatives. She stated that on 30 June 2003 she and her husband were on their annual holiday in Majorca in the company of a QC (not one involved in this litigation) and his wife. She went on:-

"5. I absolutely deny ever meeting the Appellant on 30 June 2003 or at all. I have never seen or met the Appellant other than during her Employment Tribunal case………

7. When the Appellant rang our offices (on a date unknown) to see if we could meet, I told her that we could not do so, that it was not proper for me to socialise with her while her claim was being heard. She actually asked me during that call if I could act for her. I told her that I could not do so and would not do so.

8. I will swear on oath that I have never met nor seen the Appellant since she was in the Employment Tribunal pursuing her claim………

10. The Appellant has misled this Court and has misled the Equal Opportunities Commission in fabricating this story that she met me; spoke to me in the terms that she alleges; or that we had any meeting at all or of the nature that she describes.

11. I repeat, I utterly reject having any conversations of any nature about her case (other than described above, which lasted about three minutes) or about Nomura or about the personalities at Nomura. I merely wished her well (to the best of my recollection) and responded to her that I could not act for her and could not meet her.

12. I can only conclude that the Appellant was annoyed at my declining her invitation for me to act for her and in spite, or for some other motive, has fabricated the entire meeting, conversation and file note.

13. For these reasons I ask this Honourable Court to read my witness statement. The Appellant's assertions and reliance upon fabricated notes is (sic) wholly improper."

20. Ms Madarassy has subsequently produced to Osborne Clarke a tape recording of the lunch meeting. It has not been played to me. I am told that it was of such poor quality that it had to be enhanced by an expert to be intelligible at all. Even then only the odd word can be made out, but I am told that Nomura's solicitor and in-house lawyer have listened to it and can respectively recognise the voices of Ms Madarassy and Mrs Howard. Mr Chapman, Nomura's in-house lawyer, is referred to. There is extensive background noise compatible with the hubbub of a busy restaurant at lunchtime.
21. Ms Madarassy's explanation of having taped the meeting is as follows:-

"Now that she [Mrs Howard] was no longer acting for Nomura, I thought it was possible for us to relate to each other as independent individuals. Her faxes and friendliness on the phone were evidence to this. At the same time I was sceptical deep down. I had questions. Is she really sincere? Does she have a hidden agenda with me? Is her relationship with Nomura really over? I was sure her personal loyalties could not have ended this quickly. I was afraid that she would be seeking information from me that could be used against me or that, in the future, she could refer to our meeting and claim I had said something that I had not. I did not know what to expect. I took a tape recorder along."

22. In August 2003 Ms Madarassy sought advice from Lawrence Graham and Suzanne McKie of counsel on her appeal to the EAT. She prepared a revised version of the Minutes for that purpose. At the end of one paragraph it contains the sentence "Suzanne, we should try to turn that into an advantage by reminding the judge." Ms Madarassy told me that when at the conference she mentioned the meeting with Mrs Howard, Ms McKie indicated clearly that Mrs Howard should not have held such a meeting; as a result the document was never handed over, nor were its contents revealed to counsel and solicitors. (They understandably were not asked to give evidence before me; there would otherwise be a risk of their being unable to act further.) The third version of the Minutes was prepared as what Ms Madarassy called "background information" to assist Ms Hockney of the EOC and Ms Monaghan of counsel in the Court of Appeal. As can be seen from the story so far, it was in the event wholly counter-productive.

The law

23. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 apply to the present litigation, since it was begun before 1 October 2004. Regulation 15(1)(d) provides that a tribunal may order an originating application or notice of appearance to be struck out at any stage on the grounds that the matter in which the proceedings have been conducted have been "scandalous, unreasonable or vexatious". In Bennett v Southwark LBC [2002] ICR 881 Sedley LJ said that the trinity of epithets on which the power to strike out tribunal cases was based [at that time "scandalous, frivolous or vexatious"] referred to "the conduct of proceedings in a way which amounts to an abuse of the tribunal's process". The power, in my view, is therefore indistinguishable from the inherent power of the High Court or a county court to strike out under CPR 3.4(5).
24. An appeal court, by CPR 52.10(1), has all the powers of the "lower court", that is to say the court or tribunal whose decision is under scrutiny in the appeal. CPR 52.9(1)(a) permits the appeal court to strike the whole or part of an appeal notice, though by rule 52.9(2) that power may only be exercised where there is a compelling reason for doing so.
25. It was, therefore, open to the Court of Appeal to strike out Ms Madarassy's appeal on the ground of abuse of process pursuant to CPR 52.9(1)(a); and to strike out those parts of her claim which as matters stand remain live at the level of the ET pursuant to regulation 15(1)(d) of the 2001 Regulations and CPR 52.10(1). With great respect to the Court of Appeal I doubt whether I have jurisdiction to exercise either power. It seems to me that I cannot, even at the request of the Court of Appeal, take its place and exercise its power under CPR 52.9(1)(a); and I cannot be the "appeal court" for the purposes of CPR 52.10(1), since no appeal lies from the ET or EAT to the Queen's Bench Division (QBD). However, I clearly do have jurisdiction to hear oral evidence and make findings of fact to assist the Court of Appeal in their decision. As the Court put it in para. 27 of their judgment remitting the application to the QBD:- "The general point is that the Civil Division of the Court of Appeal does not normally hear oral evidence and decide facts. It hears appeals from trials at which evidence is heard and the facts are decided. The Court of Appeal does not itself conduct trials of actions or applications. If it did, the losing party would be deprived of the opportunity to appeal to the Court of Appeal."
26. At an early stage of the application before me I indicated to Ms Madarassy and Mr Goulding QC that I was minded to hear oral evidence, make findings of fact, indicate whether I would have struck out Ms Madarassy's appeal and her tribunal claim (or either of them) if I had the power, and return the case to the Court of Appeal. This seemed to me the best way of complying with the mandate from the Court of Appeal without assuming a jurisdiction which I do not consider I possess.
27. The categories of abuse of process are not closed (Ashmore v British Coal Corp. [1990] ICR 485). They include litigating an issue which has been decided in a previous case (Ashmore); inordinate and inexcusable delay (see eg Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426); oppressive litigation conducted with no real intention to bring it to a conclusion (Grovit v Doctor [1997] 1 WLR 640); and forgery of documents as part of the disclosure process, coupled with perjured evidence (Arrow Nominees Inc. v Blackledge [2000] 2 BCLC 167). In the Arrow Nominees case Chadwick LJ, with whom Roch LJ agreed, said at para. 54:-

"I adopt, as a general principle, the observations of Millett J in Logicrose v Southend United FC Ltd (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of its right to a proper trial as a penalty for disobedience of those rules – even if such disobedience amounts to contempt for or defiance of the Court – if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the Court as to render further proceedings unsatisfactory and to prevent the Court from doing justice, the Court is entitled – indeed I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceeding against him. The reason, as it seems to me, is that it is no part of the Court's function to proceed to trial if to do so would give rise to substantial risk of injustice. The function of the Court is to do justice between the parties, not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke."

28. After referring to the fraudulent conduct of the petitioners and their untrue evidence about the extent of that fraudulent conduct Chadwick LJ found (at para. 56) that :-

"……the judge ought to have considered whether it was fair to the Respondents and in the interests of the administration of justice generally to allow the trial to continue. If he had considered that question then – as it seems to me – he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the Court's desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is not to have the fair trial which it is the Court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise………

58. The Court does not strike out the petition because it disapproves of the petitioner's conduct; it strikes out the petition because it is satisfied that the petitioner's conduct has led to an unacceptable risk that any judgment in his favour will be unsafe."

29. Mr Goulding QC placed great emphasis on the judgment of Ward LJ (with whom Roch LJ also agreed):-

"72. …….[t]here is still every indication that [the judge] regarded the risk of a fair trial not being possible as a factor of crucial, even overriding weight. It undoubtedly is a factor of very considerable weight. It may often be determinative. If the Court is satisfied that the failure to disclose a document, or the effect of a tampered document, can no longer corrupt the course of the trial, then it would be a factor of much less and perhaps even little weight in considering a strike out. Where, in my judgment Evans-Lombe J erred was to treat the question of a fair trial as the only material factor. It was not: other matters have now to be put in the scales and weighed.

73. The attempted perversion of justice is the very antithesis of parties coming before the Court on an equal footing…….Mr Tobias stood to gain much had his fraud gone undetected. He was seeking on behalf of the minority share holders to wrest control of the company from a majority and he persisted in that claim even to the point of his cross appeal. He bolstered his claim by what the judge found to be a "campaign of forgery" and more importantly, the judge was not satisfied with the explanation given for it. He found:-

"In his evidence Nigel sought to give the impression that his forgeries came about as a result of an impulsive moment of madness flowing from his disappointment that his case was not adequately supported by the documents. In my judgment, so far from that being the case, it is apparent that the process of forgery, which Nigel admitted to, was sophisticated and must have taken some time to complete including the special manufacture of headed notepaper of the defunct Tobias family company. But for the slip up with relation to the telephone numbers shown on the headings it would, in all probability, not have been discovered."

Any notion that this was a petitioner coming to the Court of Equity with clean hands is utterly dispelled by the devastating conclusion in para. 44:-

"I am not satisfied that I have received from Nigel a truthful picture of the circumstances of the forgeries which he admits."

74. This was therefore a flagrant and continuing affront to the Court. Striking out is not a disproportionate remedy for such an abuse, even when the petitioners lose so much of the fruits of their labour…………..[t]his court must make the clear statement that deception of this scale and magnitude will result in a party's forfeiting his right to continue to be heard."

30. I conclude that the law as laid down in the Arrow Nominees case and in the Rules (whether the CPR or the tribunals' Procedure Regulations) is as follows:

(i) a claim before an employment tribunal, and a first or second appeal from a decision on such a claim, may be struck out as an abuse of process if the claimant has been guilty of misconduct which jeopardises the fairness of the trial, so that a judgment in the claimant's favour would have to be regarded as unfair; (ii) the risk to a fair trial is a very important factor, and will very often be determinative, but it is not always conclusive; where a party has attempted to pervert the course of justice by a flagrant campaign of deception he forfeits his right to be heard; (iii) striking out is a Draconian remedy: it must be a proportionate response to the misconduct involved, and there must be a compelling reason for the court or tribunal to take such a step.

The conflict between the Appellant's evidence and Mrs Howard's

31. Ms Madarassy gave evidence before me and called two supporting witnesses. The first was Mr Raphael Lachs, who testified as to her good character and integrity; the second was Ms Louise Barton, the successful appellant in the well-known case of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205, who gave informal advice to Ms Madarassy on certain aspects of her claim. Ms Victoria Parry, the solicitor at Osborne Clarke with conduct of Nomura's case, was the sole witness called by the Respondents. Neither Mr Lachs nor Ms Barton, nor Ms Parry, had any personal knowledge of the factual issues concerning contact between the Appellant and Mrs Howard.
32. In referring Nomura's application to the Queen's Bench Division the Court of Appeal noted that there was a "stark conflict of evidence between Ms Madarassy and Mrs Howard". The hearing before me, however, did not prove to be a vehicle for resolving that conflict. Ms Madarassy's case is that the lunch meeting took place and that its contents were broadly as set out in her Minutes. This was accepted by Nomura. Mrs Howard is not a party to the proceedings, and neither party sought to call her nor to rely on her evidence: on the contrary, it was both parties' case before me that her evidence was untrue. I am not conducting a public inquiry or other inquisitorial process, but hearing an application by one party to adversarial civil litigation to strike out the opposing party's case. Even if a judge has a residual jurisdiction to call a witness himself, it would be inappropriate to exercise it in these circumstances in order to go behind a factual position agreed by the parties.
33. I therefore find, for the purposes of the litigation between Ms Madarassy and Nomura, that the meeting did occur; that the gist of what Mrs Howard said is recorded in Ms Madarassy's original Minutes; and that it amounted to a clear breach of confidence on the part of Mrs Howard. I emphasise that should proceedings be brought against the firm of Howard and Howard or Mrs Howard personally – whether for breach of confidence, wasted costs or under section 43 of the Solicitors Act 1974 – they or she will have the right to give evidence and make submissions; a different burden and (in the last two cases at least) standard of proof will apply; and the result, at least in theory, could be an entirely different conclusion.

The conduct of the Appellant

34. Mr Goulding submits that "the Appellant is not the innocent party that she portrays herself to be". He argues that Ms Madarassy, in accepting Mrs Howard's invitation to lunch, did so with the intention of attempting to gain an unfair advantage over Nomura, and that this intention is reinforced by her attempt to make a tape-recording of the conversation. He submits that the fairness of the litigation has been compromised, so that it should be struck out under the first limb of Arrow Nominees; and that even if it has not, Ms Madarassy attempted to achieve that result, and should have her claims struck out under the second limb of Arrow Nominees. It is convenient to consider these two submissions in reverse order.
35. The Appellant is highly intelligent and astute, as her cross-examination of Ms Parry and her closing submissions both demonstrated. Moreover, she was not a litigant in person on 30 June 2003 except in the most temporary of senses: she had received written advice on appeal on 27 May 2003, and was to attend a conference with counsel on 28 August 2003. And there is no doubt that she harboured very strong feelings of resentment against Nomura, regarding them as having played a "brutal, unlawful game" against her and her family. But I do not find that she attended the lunch with the intention of extracting privileged information from Mrs Howard. She was entitled to assume that an experienced solicitor (as she believed Mrs Howard to be) would distinguish between what could properly be said and what could not. I accept the truth of what she said in evidence, that the lunch came about because during her telephone conversation with Mrs Howard on 2 June 2003:

"…….I felt that she was reaching out to me…….because she felt this urge to call me. There was something there and I think it was like a chemistry that two people have something to talk about because they have suffered the same fate: I don't know."

The "same fate" was that each of them, in different circumstances, had been "sacked" by Nomura.

36. Mr Goulding put it to Ms Madarassy that, in expressing the hope that she would win her case, Mrs Howard had performed a "remarkable about turn". The witness replied:

"I think she was doing her job before. I never really took it as a personal thing against me, so in that sense on a human level I don't think it was necessarily a 180 degree turn around. I think professionals do the best job they can do. It doesn't mean they don't like the other party or that they don't have a sense of justice."

37. I also accept Ms Madarassy's evidence that she took the tape recorder along because of her worries that Mrs Howard might still be attempting to get information from her which could be relayed back, accurately or otherwise, to Nomura; and that when this appeared not to be the case she simply ignored the tape and did not try to play it back until the present storm broke in February 2006. Mr Goulding suggested that, if that was indeed her only reason, Ms Madarassy should have told Mrs Howard at the start of the lunch that she had brought a tape recorder and asked whether she minded the proceedings being recorded. That is logical in its way, but I accept Ms Madarassy's evidence that she had "not fully thought through" all aspects of the encounter. It would no doubt have made a chilling start to what was envisaged as a friendly meeting to have begun it by announcing that she had brought a tape recorder. In the event the tape recording has proved useless except as set out above, namely as evidence supporting the agreed fact of the meeting having taken place.
38. Accordingly I do not find that in attending the lunch meeting and listening to what Mrs Howard had to say Ms Madarassy was attempting to prevent a fair trial. I will deal next with whether she attempted to do so by her dealings with her own lawyers, then return to the issue of whether her own knowledge of what Mrs Howard said substantially jeopardises the fairness of the litigation.
39. Ms Madarassy was at her least convincing on the subject of the second version of the Minutes, which was composed on 28 August 2003 and came to light following inspection of her computer by an expert instructed by Nomura. Her case was that the document was only an aide-memoire and that she had no intention of handing it to counsel. I reject this in the light of the sentence addressed to "Suzanne". However, I do accept that when Ms Madarassy mentioned that Mrs Howard had met her, Ms McKie expressed her concern, said Mrs Howard "should not have done that" (or words to that effect), and that as a result the document was never handed over, whether to solicitors or junior counsel or subsequently to Mr Clarke QC. The third version, created on 1 February 2006, was sent to Ms Hockney and Ms Monaghan, with the consequences set out earlier.
40. Mr Goulding argued that Ms McKie's indication of disapproval of Mrs Howard's conduct not only dissuaded the Appellant from handing over the second version of the Minutes in August 2003 but should have dissuaded her from creating the third version and handing it over in February 2006. It should indeed, but the fact that it failed to have that result does not indicate to me that Ms Madarassy was being dishonest or was deliberately trying to obtain an advantage which she knew to be illegitimate: quite the contrary. Nomura rightly argue, and any competent lawyer would know, that it was improper for the solicitor or former solicitor to Nomura to reveal confidential information to the opposing party, and that any solicitor or barrister acting for Ms Madarassy who was given that information might well be unable to act for her thereafter. If Ms Madarassy had wished to be devious she would surely have turned the relevant parts of the Minutes into suggestions of her own to her legal team. There is no evidence that she did so.
41. Her conduct is not remotely comparable to the forgery and "campaign of deception" of the petitioners in Arrow Nominees, and in my judgment Nomura have fallen far short of establishing that the second limb of Arrow Nominees, even as expressed by Ward LJ, applies in the present case.

Has the fairness of the litigation been jeopardised?

42. Mr Goulding rightly submitted that the relationship of confidence between lawyer and client is of great importance and that violation of it is a serious matter. There is a wealth of high authority to that effect, and the proposition is too basic to require the citation of authority. Nevertheless it is not enough to point to a meeting of this kind having taken place in order to find that there is a serious risk that the fairness of the litigation has been compromised. Since both parties accept that the original Minutes record with reasonable accuracy what Ms Madarassy learned at the meeting (see the summary at paragraph 18 above), I should state my views on the significance of each item.
43. Items (i) (how Mrs Howard came to be "sacked") was of no value to the Appellant in the litigation; the same can be said of item (vi), her views on Ms Madarassy's legal team, which were no more than gossip (and which Ms Madarassy sensibly ignored).
44. I deal with items (ii), (iii), (iv) and (v) in a confidential appendix to this judgment, in which I record my reasons for rejecting each of them as a ground for striking out the appeal and the tribunal claim.
45. It is significant, in my view, that Mr Goulding did not point to any of the Amended or Re-Amended Grounds of Appeal to the EAT (the latter settled by Mr Clarke QC), nor to any part of the 90-page reserved judgment of the EAT, as appearing to be derived from what Mrs Howard told Ms Madarassy.
46. I do not consider that a substantial risk to the fairness of the litigation has been shown, nor that a judgment in the Appellant's favour would have to be regarded as unsafe.

Conclusion

47. On the findings of fact I have made above I conclude that no grounds have been shown for striking out Ms Madarassy's appeal to the Court of Appeal nor her claim to the employment tribunal. Thus even if I had taken the view that I had jurisdiction to strike out the appeal or the claim, I would not have done so. I therefore make no order on this application save to refer it back to the Court of Appeal with a copy of this judgment. I do not consider that Nomura need permission to appeal from this decision, but to avoid adding further technical complexities to this case I grant such permission if it is required.

Costs

48. On 29 March 2006 I sent a draft judgment to the parties with my provisional view that as between Ms Madarassy and Nomura there should be no order as to the costs of the hearing before me. Nomura indicated that they were content with this. Ms Madarassy, however, applied for her costs of the hearing before me (mainly her and Mr Lachs' travelling expenses) and the EOC's costs in the Court of Appeal, arguing that the motive for Nomura's strike out application was "for me to lose the EOC's support, to derail my appeal and to compromise the fairness of my eventual Court of Appeal and merits hearing". She also seeks a recommendation from me that the EOC fund her resumed appeal.
49. I am unable to accede to any of these requests. Although I have rejected the strike-out application, it was properly and understandably made: Ms Madarassy had to a significant extent brought it on herself, as reflected by the order for costs thrown away made against her by the Court of Appeal. I make no order as to costs before me. Costs in the Court of Appeal are a matter for that Court. The EOC have agreed not to apply for any costs order against Nomura caused by the dispute over whether they could properly act for Ms Madarassy. Whether the EOC provides further funding to assist Ms Madarassy is a matter for them: they have indicated by e-mail of 16 March that they will continue to fund the running of Ms Madarassy's substantive case in the Court of Appeal, although her representatives will be Palmer Wade and Ms McKie.
50. An application for a wasted costs order against Howard and Howard or Mrs Howard personally would be a separate matter. Any such application should be filed and served (with a copy of this judgment and the confidential appendix) by Thursday 13 April 2006.