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F & C Asset Management Plc & Ors v Switalski

[2008] EWCA Civ 1224

Case No: A2/2008/1387/A
Neutral Citation Number: [2008] EWCA Civ 1224
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Monday, 20th October 2008

Before:

LADY JUSTICE SMITH  DBE

Between:

F & C ASSET MANAGEMENT PLC & OTHERS

Appellant

- and -

SWITALSKI

Respondent

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Ms M Carrs-Frisk QC (instructed by Messrs McDermott Will & Emery UK LLP) appeared on behalf of the Appellant.

Ms S McKie (instructed by Messrs Blake Lapthorn Tarlo Lyons) appeared on behalf of the Respondent.

Judgment

Lady Justice Smith:

1.

The procedural aspects of this appeal have become extremely complicated. The claimant succeeded on two aspects of her claim for sex discrimination, harassment and victimisation, judgment being given by the Employment Tribunal (ET) in, I think, early 2007. An appeal to the EAT failed, but soon after the EAT had dismissed the employer’s appeal the employer took two steps, one upwards and one downwards. It sought permission to appeal to the Court of Appeal, seeking to adduce in support some fresh evidence. It also sought a review of the ET decision on the basis of the same fresh evidence.

2.

Maurice Kay LJ granted limited permission to appeal to the Court of Appeal and directed that a single lord justice should decide on the admissibility of the fresh evidence on the appeal in advance of the hearing.

3.

Meanwhile the original ET had heard the review application and had also heard a further fresh claim by the claimant (her fourth claim). It rejected the employer’s application for a review based on the fresh evidence and it found in the claimant’s favour on her fourth claim. Before rejecting the review application, the ET heard the fresh evidence orally and it was subject to cross-examination. The ET refused to a grant a review because it took the view that the fresh evidence was not relevant to the issues of liability but only to the issues of remedy which are scheduled to be heard in February 2009.

4.

The employer has now sought the permission of the EAT to appeal both the ET’s decisions on the claimant’s fourth claim and the refusal of the review. At the moment a decision is awaited on the sift. Everybody agrees that it would be highly desirable for the EAT to expedite these applications.

5.

Today Ms Carrs-Frisk for the employer asks me, first, to hear and determine the application to admit the fresh evidence but, if I am not prepared to do that, to adjourn that application until the EAT has decided whether the ET was right to reject the application for a review. I have come to the conclusion that in the interests of justice the second is the better course. It seems to me that it would be most unsatisfactory that the Court of Appeal should consider the fresh evidence on paper, trying to decide upon its relevance to the issues of liability in this case, when the ET, a proper fact-finding tribunal, has heard the evidence and made up its mind as to its weight and relevance to the issues of liability. The Court of Appeal is being asked in effect to second guess the ET’s decision on weight and relevance, and the EAT has not yet had the opportunity to say whether the decision of the ET was flawed. In effect the employer’s proposed appeal to the EAT on that issue is one of perversity.

6.

It seems to me that it is very much in the interests of justice that the Court of Appeal should consider the new evidence as it emerges through the review procedure rather than as part of its own procedure. As Miss McKie has observed, the Court of Appeal is not going to be asked to hear the evidence orally, whereas the ET has done so and has formed a view about it. So, it seems to me highly desirable that this court should approach that evidence through the normal channels of the fact-finding tribunal, followed by the appeal if any to the EAT.

7.

So for those reasons, as I have already announced, I will adjourn this application to admit fresh evidence. As I have said, I will write to the EAT and ask for their assistance in expediting this matter. I will set out the background so that there is no misunderstanding of the complexity of these proceedings and the importance of trying to maintain the date for the remedies hearing in February. Of course, if the EAT comes to the conclusion that the ET was wrong to refuse a review, the matter will have to go back to the ET and it seems to me that the remedies hearing will be lost. In that event, the appeal to this court will probably have to be stayed. But that is only one possibility. Another possibility is that the EAT will deal with the appeals in good time in which case this Court will be able to make a decision on all matters relating to liability in January. If that is done, it should be possible for the remedies hearing to go ahead in February so that all aspects of this litigation can be brought to an end, subject of course to appeals on the remedies decision. However, a further possibility is that the EAT will not be able to expedite the hearing of the outstanding appeals, in which case, we will have to think again about whether the appeal presently listed for January 2009 should go ahead or be adjourned.

Order: Application adjourned

F & C Asset Management Plc & Ors v Switalski

[2008] EWCA Civ 1224

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