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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kovacs v Queen Mary & Westfield College & Anor [2001] EWCA Civ 2003 (18 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2003.html Cite as: [2001] EWCA Civ 2003 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Levy)
Strand London WC2 Tuesday, 18th December 2001 |
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B e f o r e :
MR JUSTICE WALL
____________________
IRENE KOVACS | ||
Appellant | ||
- v - | ||
(1) QUEEN MARY AND WESTFIELD COLLEGE | ||
(2) THE ROYAL HOSPITALS NHS TRUST | ||
Respondents |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
London EC4V OHP) appeared on behalf of the Appellant.
The Respondents did not appear and were unrepresented.
____________________
Crown Copyright ©
Tuesday, 18th December 2001
"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."
"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'."
"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."