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||Neutral Citation Number:  EWCA Civ 1991
||Case No. A1/03/0138
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE MCMULLEN QC)
||Royal Courts of Justice
London, WC2A 2LL
||7 November 2003
B e f o r e :
LORD JUSTICE WARD
||UNIVERSITY COLLEGE LONDON
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Applicant appeared in person.
The Respondent did not appear and was not represented.
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- LORD JUSTICE WARD: The court has had to confront a depressing task, depressing because Miss Ursula Riniker, the applicant, is still battling to obtain what she would regard as a fair and just resolution of complaints she has arising out of her dismissal from her employment with University College London. For something like 15 years she had been employed teaching German at the college. She had been engaged on contracts, whether several or to be treated as one, to teach year by year in the Language Centre. But, there where eventually serious difficulties arising and, as Miss Riniker would say, only from sex discrimination and victimisation. She has complained that she and others, mainly women who were in the minority on the teaching staff, were retained on contracts which gave no proper pension provision for them. She claims that that was wrong. Be that as it may, she was dismissed.
- Miss Riniker had been teaching German to chemistry students under separate arrangements which came to an end. The question was whether or not she had been offered a contract to teach in the German department as opposed to the Language Centre, and an issue arose as to whether there was a concluded contract offered to her in that regard. She would wish to view all that happened as one and for the Employment Tribunal to look at this as a whole. That has not been possible because of the nature in which the complaints have been presented.
- Her first complaint, 45417/92, related to her claim on 4 September 1992 for unfair dismissal following the cessation of her teaching at the Language Centre. It was followed on 1 November 1992 by complaint 55840/92, again alleging unfair dismissal, relating to the question of whether or not her employment to teach in the German department was well-founded.
- Her third complaint, issued on 2 December 1992 under number 61613/92, related to her termination of teaching the chemistry students. Inevitably further facts came to Miss Riniker's attention which she felt substantiated her allegations, but a direction given on 20 October 1992 was to the effect that the claim she had indicated to the tribunal:
"Must be the subject of a fresh Originating Application as it appears to arise out of a communication which only came into existence after the Originating Application herein was received."
That was a reference to her first application, 45417. In the result, various other applications were issued thereafter. For example, in November 1993, complaint 62447 for failure to pay wages was eventually dismissed on appeal on 23 September 1999; on 1 February 1994, complaint 8814 alleging victimisation was dismissed on 27 July 1995; complaint 8812/94, issued on 3 February 1994, forms the subject of this application. That was a claim relating to the unequal terms of employment, including discriminatory access to the pension scheme under the Equal Pay Act. There was a claim in April 1994 under number 22479 alleging sex discrimination. In some of these complaints amendments had been allowed to allege sex discrimination; for example in complaint 8812 and 61613 but not in the first complaint, 45417.
- Without going into the history in depth, the tribunal ruled in August 2002 that, as a decision had not been arrived at, they were satisfied that there was no concluded contract in case 55840. That, and perhaps other matters, led to an application to appeal. As I understand the history, which is not entirely clear, Mummery J gave permission for that appeal which eventually came before Morrison J. Quite scandalously, his judgment was delayed for 26 months or, more accurately, 30 months for one reason or another. That is not the way litigants should be treated and I approach this case, and this may or not may not surprise Miss Riniker, with a huge amount of sympathy for her. But, cases are not decided on sympathy and so I proceed to look at the matters before me.
- As a result of the long delay to which I have referred, matters came to a head in September 2001 when, before the Employment Tribunal, Mr Solomons (the Chairman) gave certain directions following a hearing which was attended by Miss Riniker. At that time, he said:
"The current status of those applications is as follows:
45417/92 unfair dismissal complaint conceded by Respondent -- awaiting Remedy Hearing.
55840/92 unfair dismissal complaint to be determined.
61613/92 unfair dismissal complaint to be determined."
The Chairman gave directions that, in case 8812, the claim under the Equal Pay Act, which had been adjourned to await the decision of the House of Lords in Preston and Ors v Wolverhampton Health Care NHS Trust and Ors  IRLR 237. That matter was listed to take place on 4 February to determine whether the tribunal had jurisdiction to hear the complaint, and directions were given for skeleton arguments and so forth.
- Directions were also given for merits hearings in 55840 and 61613 to determine whether the applicant had been dismissed and, if so, whether the dismissal was unfair. Eventually it was hoped that, if she established her remedy, all the remedy hearings could be heard together. That seems to me to have been a thoroughly sensible case management decision. It was not appealed, although Miss Riniker now says it has led to the fragmentation of her claims which have, in the result, emasculated her case completely.
- On 4 February 2002 the hearing was held as directed before Miss Potter, whose decision was promulgated on 22 February. The tribunal decided that they did not have jurisdiction to hear the applicant's equal pay claim as it was brought outside the time limit provided in section 2(4) of the Equal Pay Act. Since an amendment had been allowed in that case to raise questions of sex discrimination, the decision further ordered that, on an application having been made to strike it out as scandalous, misconceived or vexatious, Miss Riniker was to show cause why that should not be done. She appealed to the Employment Tribunal ("appeal no 1"). Appeal no 2 follows on from that. Miss Riniker's claim for sex discrimination in that application was duly struck out on 8 May by Miss Potter as being misconceived.
- Appeal no 3 arises out of the next decision of Miss Potter of 8 July 2002, issued on 10 July. She gave directions that the case be listed for one day on 24 October 2002 to deal with the remedy for unfair dismissal in case 45417, if appropriate in case 55840, and again if appropriate, in case 61613.
- The fourth appeal is from the decision of the tribunal, again presided over by Miss Potter, heard on 8/9 July 2002 but promulgated on 21 August 2002. The unanimous decision of the tribunal was that in case 55840 the tribunal did not have jurisdiction to hear the complaint of unfair dismissal because Mrs Riniker had not been continuously employed for a period of less than two years ending with the effective date of termination, as a consequence of which the tribunal did not have the jurisdiction to deal with her allied claim for not having written statements and reasons.
- In case number 61613, unfair dismissal having been admitted, the claim for unlawful direct sex discrimination was dismissed on its merits. Those appeals were heard together by His Honour Judge McMullen QC and his two lay members at a hearing on 29 November 2002, his judgment being delivered on 20 December 2002. All the appeals were dismissed and Miss Riniker now seeks permission from this court further to appeal them.
- A myriad of issues are raised in this application. Miss Riniker's passion for her case is obvious. She has carried out an enormous amount of work over the past decade to master the intricacies of the law. Sadly, as is often the case, one loses sight of the wood from the trees. I have received and encouraged the receipt of voluminous argument from Miss Riniker to supplement the large number of documents placed before me. It has taken me hours and hours to read the papers and I have done my best to master the case.
- There are a number of important preliminary observations to make about this application. Not too long ago, this court, of which I happened to be a member, gave judgment in the case of Vento v Chief Constable of West Yorkshire Police (No 2)  1 IRLR 102. Giving the judgment of the court, Mummery LJ held at paragraph 25:
"It has been settled by decisions binding on this court that the question for the Court of Appeal is whether there is an error of law in the decision of, or in the proceedings before, the employment tribunal."
- Miss Riniker, whose research is commendable, points to a decision of the Master of the Rolls, Sir John Donaldson, in which he speaks of the Court of Appeal as a second tier appellate court and, as such, primarily concerned with the correctness of the trial court's decision. So, Miss Riniker suggests, that "primarily" does not mean "only" and that, consequently, Mummery LJ is wrong. I am not prepared to grant permission in this case to appeal that question. It is clear that the Court of Appeal, like the Employment Appeal Tribunal, can only entertain appeals from the Employment Tribunal on questions of law. This court, whether on the application for permission or on the granting of the substantive appeal, is in as good a position to analyse the errors of law in the Employment Tribunal as is the Employment Appeal Tribunal.
- In consequence of my view, both on the grant of permission and on the hearing of the appeal, that this court should confine itself to what happened at the Employment Tribunal stage, it is unnecessary to consider a large part of Miss Riniker's complaint about the way matters proceeded in the Employment Appeal Tribunal. In fairness to her, however, I should make some brief comments about those matters.
- She is very concerned about the legality of preliminary hearings as a means of weeding out appeals which truly raise questions of law from those which do not. She submits that this is simply the disguised introduction of a permission to appeal stage in the Employment Appeal Tribunal hearings. For my part, I can see no illegality in the directions the Employment Appeal Tribunal have had from time to time. At the material time the practice direction in paragraph 14(1) of the rules allowed the Employment Appeal Tribunal to consider "Whether the grounds in the notice of appeal raise a reasonably arguable point of law". I can see nothing wrong with that and I do not understand that the changed wording of the new rule in paragraph 9(7) requiring "a reasonable prospect of success" makes any material difference for present purposes.
- Miss Riniker complains that, although the case was listed as a without notice hearing, counsel appeared for the respondents and took part in the hearing. But that was because the Employment Appeal Tribunal directed that the respondent had liberty to attend. That, too, was a wise decision. I confess that I, too, have contemplated adjourning this application to be heard on notice to the respondent, simply to invite the respondent's assistance in helping me through this volume of paper. I did not do so because it would have meant that if Miss Riniker were to lose she would almost certainly have to pay the respondent's costs and she already has a bill of some £17,000 from a previous venture into the Court of Appeal. I thought it a kindness to her to labour on my own to save her money. I can see nothing illegal in the way the case was managed below.
- Miss Riniker then complains that Judge McMullen was disqualified. This is a complicated argument. It derives from Mrs Riniker's construction of the rules governing procedure in the courts under CPR 2BPD 7A(1) to the effect that a Deputy High Court Judge, a Master or a District Judge may not try a case in a claim made in respect of a judicial act under the Human Rights Act 1998.
- This is not a claim made in respect of a judicial act. It is an appeal in Employment Appeal Tribunal cases where human rights issues are raised. In this argument, at least, Miss Riniker is way off beam. It seems to me (and I am afraid to say it, but I say it robustly) absurd to suggest that only a High Court judge is able to consider a human rights point. The procedure would become impossible of implementation if that were so. That is a bad point.
- I have much more sympathy with her second complaint in relation to the conduct of the case below. I have to be careful what I say about it because I do not have a complete transcript of the proceedings before Judge McMullen. I only have a note prepared by the respondent's solicitors. Miss Riniker complains, I would have thought with justification, that she was, putting it colloquially, given a hard time by Judge McMullen. I do not accept that the criticisms can be put as high as Miss Riniker would like, complaining of "oppressive, abusive and insulting conduct in violation of her Article 6 Human Rights", but it is apparent that Judge McMullen, perhaps under pressure of time, was quite testy in suppressing some of Miss Riniker's submissions, which he felt were more a case of her lecturing the court than of advancing argument before it. I am quite satisfied that the hearing was not unfair, but, perhaps, Miss Riniker's insistence tried the patience of the judge. I can understand how it happened.
- Article 6 is advanced in various ways. One argument in paragraph 30 of the second skeleton argument is that the result of these hearings is that she has never, and will never, have a substantive hearing of her whole complaint. I do not repeat my introductory remarks that she regards all of this as part of a whole and would have wished the whole to be determined at one and the same time. The error in that submission is that the European Court of Human Rights has had to accept that preliminary hearings are Article 6 compliant, and that issues of law can be considered in preliminary hearings without offending that Article. If the Court of Human Rights took a different view in the case of Osmond they have since recanted and, by analogy, I can see nothing contrary to Article 6 in case management decisions requiring identifiable issues to be determined in preliminary hearings.
- The next argument is that there is an inconsistency on the face of it between Article 6 and section 37(1) of the ETA of 1996, which provides that:
"An appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with leave of the Appeal Tribunal or the relevant appeal court."
- I do not accept that that is so. On an application for leave, one can look at the human rights issues that arise. There can be no question of automatically having to give permission to appeal simply because a human rights point is raised in the grounds of appeal. That would make our life easier in one sense because, in practically every case where a litigant appears, he has a human rights point to advance.
- I move, therefore, to consideration of the four appeals. The First Appeal
- I will attempt to deal with the submissions, but if I do not deal with every argument it is simply because the judgment on the permission application is already longer than is necessary. I am doing this solely for Miss Riniker's benefit. She contends that the tribunal had no jurisdiction to hear the matter. That is simply wrong. Clear directions had been given by Mr Solomons at the hearing at which she was present. She did not appeal those directions. She could not have appealed them successfully in any event, so they stand. On 4 February the tribunal were doing what it had been directed it should do. It was perfectly entitled to entertain the issue before it.
- In so far as Miss Riniker does complain that the hearing proceeded in her absence, having looked at this aspect very carefully, I am satisfied that the tribunal were well within their discretion to proceed without her. They gave reasons for doing so; first, because the hearing was in accordance with the directions. Although Miss Riniker had subsequently challenged the legality of the hearing, she knew full well from the letter from the tribunal that it was in her interests to attend on 4 February 2002. She deliberately chose not to do so.
- The second reason is that the tribunal took into account in their deliberations the lengthy skeleton arguments and letters she had written on the subject. There was no breach of Article 6 because a consideration of the written case is sufficient to ensure a fair trial.
- It seems to me that Miss Riniker's problem is that she refuses to appreciate that these claims have to be treated as free-standing separate claims. Of course she may have wished all matters to be included within claim 45417, but that did not happen. The various claims were consolidated, but that simply means that they are heard together, not that each of the complaints merge into the other to form a single complaint.
- Miss Riniker seeks to escape the inevitable consequence of the decision in Preston by submitting that her case is based on, and made within, three months of the discovery of the basis of the claim. She seeks to rely on section 32(1) of the Limitation Act 1980. That section has no application here. Section 32 applies:
"In the case of any action for which a period of limitation is prescribed by this Act".
A period of limitation was not prescribed by the 1980 Limitation Act, but was contained within section 2(4) of the Equal Pay Act.
- This claim is, as Miss Riniker points out in her letter of 24 February 2002, one in which "anyone with basic reading skills can verify" to be one of:
"Unequal terms of employment, in particular discriminatory denial of access to the occupational pension scheme in breach of the Equal Pay Act 1970 (as amended) and Article 119 of the Treaty of Rome."
It follows, in my judgment, that the period of limitation is entirely controlled by the 1970 Act. The Limitation Act 1980 as has nothing to do with this case whatever.
- On the facts, the tribunal were correct to find that the latest date on which she could possibly argue as being the date on which her employment ended would have been 4 December 1992, the date of presentation of her last unfair dismissal claim. Since that was well over a year before the date of the presentation of claim 8812, received on 3 February 1994, she is clearly out of time if section 2(4) of the Equal Pay Act validly provides a bar to her proceeding. Miss Riniker's attempt to distinguish Preston, asserting direct discrimination whereas Preston involved indirect discrimination, is a distinction of no importance. The important point in Preston is that the House of Lords held that section 2(4) did not breach the principle of equivalence upon which the Court of Justice jurisprudence is founded. Section 2(4) is a valid part of our law. It applies in this case and it seems to me, therefore, that there can be no possible error on the part of the tribunal in striking out that claim as having been brought out of time.
The Second Appeal
- Once again, there is this fundamental misapprehension at the heart of Miss Riniker's complaint that the court was acting unlawfully when making this order. She points to the decision of 27 July 1999 adjourning application 8812 generally, to be dealt with together with similar claims concerning pension rights. This was in order to await the decision of the House of Lords in Preston. Once Preston had been decided, these outstanding claims could be restored. On 12 December 2001 Mr Solomons ordered this hearing to take place.
- At the hearing on 4 February 2002, and by their decision promulgated on 22 February 2002, the tribunal properly declined to deal with an application to strike out the sex discrimination claim because notice had not been given to Miss Riniker. She was given proper notice by the decision of 22 February 2002 that an attack was being launched against that claim. She knew what she had to do to beat it if she wished to advance written submissions as to why the sex discrimination claim should not be struck out. She did so in her letter of 24 February 2002. It is an important letter for the purposes of this application.
- In that letter, Miss Riniker is herself accepting that:
"Moreover, originating application 8812/94 is not a claim of Sex Discrimination but, first and foremost, a pension rights claim."
She describes that the tribunal's decision letter of 22 February 2002:
"Perversely suggests that originating application 8812/94 is a claim of Sex Discrimination."
- It seems to me that she is accepting that, at least viewed in isolation and as a freestanding application, that claim was not properly brought under the Sex Discrimination Act 1975. This is part and parcel of her hope, or mistake, that all of this should be wrapped up into complaint 45417. Sadly for her it was not, as she would have it, "an intrinsic part of her first originating application". If it was, then it would have been capable of being dealt with at the same time as that claim.
- At first I was sympathetic to Miss Riniker's complaint that the decision of 8 May 2002 was made, as the Chairman admits, without having had sight of, or considered, her letter of 26 April 2002. But, when one looks at that letter, it does not add anything to her case. She herself says in that letter:
"The detailed reasons why originating application 8812/94 is NOT TO BE STRUCK OUT are contained, in writing, in my three-page submissions of 24.2.02."
Nothing in the letter of 24 February gives any reason for not striking it out, as was fore-warned in the decision of 22 February 2002, because claims under the Equal Pay Act and Sex Discrimination Act are mutually exclusive. The tribunal indicated that it proposed to follow Oliver v JP Malnick & Co (No 2)  ICR 458. That decision has stood unchallenged for nearly 20 years and I see no reason now to think that it was wrong. The claims under the Equal Pay Act and Sex Discrimination Act are mutually exclusive. In my view the tribunal were correct.
- Again, despite her absence, her case was sufficiently before the tribunal in writing and they had regard to it. There is no breach of Article 6 and I can see no error in the Chairman's approach. In my view he was correct.
The Third Appeal
- The nub of her complaint in this case, as expressed in her letter 1 July 2002, is that applications 55840/92 and 61613/92 were listed for separate hearing to determine whether or not Miss Riniker was entitled to her remedy when she wanted all matters to be considered at one and the same time with her first complaint, 45417. As she put it:
"The two former applications could not possibly be understood or determined in isolation and any attempt to list them separately is unlawful."
It was not unlawful. It was an effective case management decision, and I think it was wholly appropriate to deal with the preliminary issues which would establish the employer's liability.
- If it was a lawful decision, the next question is whether the Chairman properly exercised her discretion. I can see no prospect whatever of appealing against the order she made as being demonstrably wrong. Considerable latitude is given in respect of decisions of case management. This one certainly cannot be said to be outside the generous ambit within which there is room for reasonable disagreement. Miss Riniker cannot complain that the hearings proceeded in her absence when she wrote, as she did on 1 July:
"As I have said countless times in the past, after 10 years of delay, I shall not attend any preliminary or other partial hearings on my case."
If she chooses not to attend, she cannot complain she has not had a fair trial.
The Fourth Appeal
- A clear listing directions had been given on 26 June 2002 by the Chairman. Miss Riniker was fully aware of what was to take place at that hearing. She did not appear in the sense that she chose to take no part in the hearing, but it is accepted by her that she attended at the tribunal and delivered by hand a letter for their consideration, which is what they did.
- The tribunal had to decide whether in case 55840 there was a contract to teach in the German department. They took a point, which apparently had not been appreciated before, that Miss Riniker still had to establish the necessary period of employment, which had to be calculated with schedule 13 in mind. The tribunal concluded Miss Riniker had failed to establish that question. In paragraph 26 of their decision they decided that:
"The Applicant's Originating Application made clear that the offer of employment in the German Department was to be viewed independently from her part-time job with the Language Centre. Therefore any continuity of service attaching to the Language Centre position did not attach to the offer of employment in the German Department. That offer of employment should be viewed quite independently. On this basis, accepting the Applicant's version of events (which the Tribunal did not) the earliest date on which the contract came into existence was 18 May 1992. The latest date on which the contract ended, even on the Applicant's case, was 30 September 1992. The duration of employment fell far short of the two years required in 1992 to found an unfair dismissal claim. It was regrettable that this issue had not been focussed upon earlier."
- It seems to me that that view of the facts was admissible and was right. It was a pity that the point was not taken earlier. In the light of that decision, it was unnecessary to decide whether or not there was a concluded contract. Miss Riniker's complaint is that it had already been determined that there was one. But this goes back to a decision of the tribunal made in April 1993 that there was no jurisdiction to hear this particular complaint (55840) because the tribunal held that the applicant had not entered into a contract of employment on 18 May 1992. It was of the view that, even if all the other essential terms had been accepted, there was no agreement and that, sadly, the contract was therefore uncertain and void.
- Miss Riniker appealed. At a preliminary hearing the President, Mr Justice Mummery as he then was, was of the view that it was arguable that you can have a binding contract of employment under which you have not done work even if the contract does not expressly provide the rate of salary. Morrison J after his two years of agony and deliberation eventually seemed to agree and reversed the tribunal's decision. He left open whether there was to be a trial to determine the other terms of the contract. I do not read those judgments as amounting to a finding by the Employment Appeal Tribunal that there was no contract. It was simply a reversal of the decision of Mr Bano who found that the alleged contract was void. So the matter had not been determined effectively and there is no inconsistency in the decisions. The tribunal hearing this matter nearly a decade later in August 2002 came to this conclusion:
"The Tribunal were not satisfied, having heard the evidence, that the Applicant ever formed a concluded contract with the Respondent. They found that Bill Larrett did not have the authority or financial backing to offer such a contract on 18 May 1992 and that the correspondence in the period between May and August 1992, both from the Applicant and the REspondent, was more consistent with general discussions about the possibility of a job than a concluded contract. The Respondent made a formal offer of employment on 6 August 1992 which was not then accepted sufficiently unequivocally by the Applicant to constitute a contract."
I can see no error in law in that conclusion.
- The tribunal went on to consider the question of sex discrimination. Their conclusions were made after hearing the evidence put in by the respondent. Miss Riniker complains that it was thin evidence consisting mainly of hearsay, but it was unchallenged and the tribunal are well able to accept as admissible and weigh the weight of evidence which is hearsay. Their conclusion was:
"The Tribunal, having considered the documents and the evidence of the witnesses, concluded that the Applicant had failed to establish less favourable treatment for the purposes of the Sex Discrimination Act 1975 or sex discrimination for the purposes of the Equal Treatment Directive. The Applicant was treated in precisely the same fashion as a significant number of other Language Centre tutors whose contracts were not renewed at the end of the first year of operation of the Centre. Once teaching obligations ceased, these staff were required to return their key and required consent to enter the Language Centre. However the requirement not to enter the Language Centre was imposed only in express written form on the Applicant. It was imposed in this fashion because of the breakdown in her relations with the management of the Language Centre and subsequent visits by her to the Centre which gave cause for anxiety that she would disrupt the operation of the Centre if she was allowed to continue to visit. The Applicant made no mention of sex discrimination at the time of her exclusion from the Centre. It was only nearly two years later that she sought to add such a claim. There was no evidence to suggest any connection between the fact that the Applicant was a woman and the requirement not to enter the Centre imposed on her."
This was a finding of fact. There is no error of law and the finding must stand. The fact that Miss Riniker did not attend to advance her case is not offensive to Article 6 for the reasons I have already given.
- My sad conclusion is, therefore, that Miss Riniker is probably the victim of her own mistaken view that the tribunal was not able to deal with her case in this piecemeal fashion. Whether it would have made any difference, I do not know. I know from the papers before me that her remedies were considered on 24 October, the decision being sent out on 15 November. In the result Miss Riniker was awarded some £7,926.94 in respect of her claim 45417/1992. She did not attend that hearing. She has applied to appeal it and, as far as I know, the appeal is outstanding before the Employment Appeal Tribunal. Miss Riniker faces the same difficulties in being asked to attend the preliminary hearing. I hope she will accept that her view on that is wrong. I hope she will attend before the Appeal Tribunal. It is her last chance to advance her case, but it may not be a good case.
- In dealing with complaint 45417, the whole history of her unhappy days at UCL should be taken into account as part and parcel of that case. But that is not a matter before me today. It will be dealt with in due time by the Employment Appeal Tribunal.
- My unhappy task is to dismiss her present application for permission to appeal. I know it has been said before, and I know that whatever I say will never be accepted by Miss Riniker, but in many people's lives they suffer set-backs, many, many of a much more serious nature than she has had to endure, and they simply have to learn to get on with life. I wish Miss Riniker would put this unhappy decade behind her and use her undoubted talent where it is properly best applied. In pursuing this litigation, her talents, I am afraid, are misapplied; that is a pity. I am afraid the applications have to be dismissed.
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