Was Whistleblower’s hearing hijacked? Kostakopoulou case reloaded – part 1

Before the commencement of Kostakopoulou’s hearing at Midland West Employment Tribunal – Birmingham Employment Tribunal (BET) on Monday, July 24, 2023, in an Employment Appeal Tribunal hearing presided by Mr Justice Simon Auerbach against a decision of EJ Broughton, Kostakopoulou requested the transfer of her cases from Birmingham Employment Tribunal to a different Tribunal as there had been considerable obstruction of disclosure and delays by judges appointed by Lorna Findlay, the Regional Employment Judge.

To allay Kostakopoulou’s concerns, Mr Justice Auerbach assured Kostakopoulou that fundamental rights would not be violated and that she would receive a fair hearing at BET.

What transpired over the four-day hearing at BET and the subsequent decision of EJ Perry, delivered on Wednesday, August 2, 2023, without there being formal merits hearing as Kostakopoulou had expected, disavowed the declaration given to Kostakopoulou by Mr Auerbach.

Specifically, when on Monday, July 24 2023, whistleblower Kostakopulou arrived at Midland BET, she expected a merit hearing and for her case of three years in the making against the respondents – Warwick University, Professor Christine Ennew, OBE, Provost, and Andrew Sanders, to be heard.

Little did Kostakopoulou know she would be in for a surprise as EJ Perry, the judge overseeing the case, and two members, Mr T Liburd and Dr B Von Maydell-Koch, had other intentions. EJ Perry commenced by declaring that he would be holding a closed case management hearing (without public access) and that he had a copy of the respondents’ bundle, which was given to him in a PDF file that suited the way he liked to work, and that he had the documents uploaded to his monitor and would proceed on that basis.

Kostakopoulou enquired whether Mr Perry had received her bundle of documents submitted to BET on 18 July 2023 and stressed that her bundle of papers consisted of the three lever arch orange files next to him.

Kostakopoulou noted that she had prepared an integrated bundle of documents which included almost all those in the respondents’ bundle and that the respondents’ bundle had excluded important documents, such as her Scott Schedule, her employment contract, the policies and procedures of Warwick University and other documents. It also contained unnecessary duplication of documents. She made it known to EJ Perry that EJ Camp had conducted her hearing in the parent case involving Professor Stuart Croft, Vice-Chancellor of Warwick University, Rebecca Probert (now at Exeter University) and Gillian McGrattan (now at Birmingham University) in 2018 without her bundle and had also removed the names of the respondents from the claim unilaterally, and did not wish the same to be repeated.

Kostakopoulou mentioned that EJ Camp also wanted to conduct the most recent 8^th preliminary hearing without her bundle of documents and to strike out her claim if the respondents’ strike out application succeeded and she had made an application for his recusal, which Mr Camp refused. That preliminary hearing took place because the 7^th preliminary hearing could not proceed because Regional Employment Judge Lorna Findlay’s appointed judge, Mr Jaques Algazy, is a member of the same chambers as the respondent’s Counsel, Ms Akua Reindorf.

From the detailed notes of the hearing, this media understands that the breaches of human rights and EU law involved in her being placed under disciplinary investigation, false allegations, suspension for six months and dismissal in absentia were a particular issue EJ Perry was keen to enervate and or expunge as it would not serve the interest of Warwick University should it be evidenced that its executive and management violated Kostakopoulou’s human rights.

In a very intimidating and frequently truculent manner, EJ Perry, behind closed doors, spent an extraordinary amount of his time trying to persuade Kostakopoulou that she had brought a freestanding human rights claim which was never the claim of Kostakopoulou, who referenced her claim form and case law to substantiate her argument.

Unsatisfied with Kostakopoulou’s arguments and grasp of the law, coupled with the fact that she would not concede ground on such an important issue, Mr Perry pursued the matter from different angles in his inimical manner, albeit without much success as Kostakopoulou fought stoically to argue her points forcefully, despite the frequent interjections from EJ Perry who became increasingly hostile and abrasive towards Kostakopoulou in his questioning.

EJ Perry then decided to alter his approach by belittling Kostakopoulou, seeking to undermine her confidence in her ability and understanding of the law, berating her on the fact that she was a Professor of Law, and how could it be that she was unaware of the case of Turner v East Midlands Trains Ltd. Yet, as this media discerned from the detailed notes, EJ Perry, a judge with more than 20 years of experience, sometimes could not recall the case law and gave up doing so when he could not recollect cases he wanted to reference.

EJ Perry repeatedly referenced that Kostakopoulou was a Professor of law – a tactic often used by individuals when they cannot get their way. On the other side,  Kostakopoulou had followed the orders of EJ Woffenden, Broughton and Camp and had attached her list of issues as instructed.

What seemed to irritate EJ Perry and the respondents’ representatives most was Kostakopoulou’s reluctance to allow the respondents’ representative to alter the issues she had actually brought in her ET1 and she had submitted to the ET on 1 September 2022. Kostakopoulou explained to EJ Perry that if the issues she had brought before the ET were not included and the panel failed to decide on those, she would then be precluded from raising them in an appeal. It was thus important to her that all the complaints she had brought in 2020 were part of the final panel’s list of issues. Kostakopoulou cited case law on this and distributed copies to the panel.

Another thorny issue for EJ Perry was Kostakopoulou’s trial bundle, seem to worry him immensely while EJ Perry’s preference was to proceed with a single bundle, but when he realised Kostakopoulou had produced a meticulously prepared and detailed bundle (with no missing pages) evidencing her claims, which did not serve the interest of the respondents who wanted to see a limited amount of documents as possible. In contrast, the Respondents had put together a bundle of 1700 pages, 490 pages of which were duplicates.

EJ Perry took it upon himself to explain away why the respondents had included multiple copies of the same documents in their bundle but, at the same time, made a fuss, at the request of the respondent’s counsel, Akua Reindorf, over the limited amount of time she would have to familiarise herself with documents that were already in the respondents’ bundle and included in Kostakopoulou’s bundle and other related matters, even though Mr David Browne, Partner of Shakespeare Martineau and representative solicitor had been aware that his firm had made it clear to Kostakopoulou in the months leading up to the final hearing that she was free to prepare her trial bundle as confirmed in email communications between Kostakopoulou and Ms Daniela Humpries of Shakespeare Martineau in April 2023.

Despite Mr Browne’s admission, EJ Perry remained dissatisfied with Kostakopoulou’s bundle, principally, this media discerns, because it contained documents that carefully evidenced her list of issues meticulously, as well as a good selection of crucial ET correspondence that shed light on the infringements of the instructing solicitor firm, including their non-compliance with Tribunal orders, which EJ Perry was quick to provide reasons for the respondents’ non-compliance.

The notes also revealed that EJ Perry was dissatisfied with the chronology submitted by Kostakopoulou.

Appearing somewhat flustered, EJ Perry announced that members of the public had been tweeting about their inability to access the hearing.

The subsequent discussion revolved around preparing a single agreed bundle between the parties, a task that EJ Woffenden had assigned to Mr Browne. Mr Browne had made no effort to agree its content with Kostakopoulou, had not replied to her email of July 2022, which forwarded documents to him for inclusion and, more importantly, had refused to include an official ET bundle used for both the interim relief and preliminary hearings intact.

Tuesday, 25 July 2023, 10.20 am, proceedings commenced (again without public access) and matters again focussed on the bundle, list of issues and the human rights and EU law submissions of Kostakopoulou, which EJ Perry summarised as ‘European jurisprudence’.

In further discussions, EJ Perry took exception to how Kostakopoulou had made her submissions and asked Kostakopoulou who decides on matters such as lists of issues and claims, to which Kostakopoulou replied, ‘the LAW’, Sir.

EJ Perry was dissatisfied with Kostakopoulou’s answer, perhaps because he wanted to acknowledge that he decided on employment tribunal claims. Mr Perry repeated the same question to which Kostakopoulou repeated ‘the LAW’, Sir.

The Judge ordered Kostakopoulou to go through the bundle she had submitted and to identify the documents she wanted to be included in the respondents’ bundle, to explain why they should be included, and what documents she wanted to be excluded from the respondents’ bundle and to explain why they should be excluded. These matters consumed considerable tribunal time, which gave the distinct impression that EJ Perry was more interested in preparing the grounds for the successful outcome of the respondent’s case rather than in ensuring that Kostakopoulou would be confident that she would at least be making submissions for deliberation in front of an impartial Tribunal. After all, the tribunal had before it an integrated bundle of documents of 2043 pages which included almost all the Respondents’ bundle documents (- Kostakopoulou informed the panel that she had double checked and from the four lever arch files of the respondents’ bundle, only very few documents would have to be added).

The case management hearing, as decided by EJ Perry, became a Public Hearing on Wednesday, 26 July and Thursday, 27 July 2023. Wednesday, 26 July 2023, Mr Perry commenced proceedings by allowing public access to the hearing. He was a different person; his demeanour was overly pleasant in front of the public, instructing the Public not to tweet about the hearing without his written permission.

Ms Reindorf confirmed that the respondents would make a strike-out application of the entire claim claiming that Kostakopoulou had behaved unreasonably during the course of the proceedings and that a fair trial would not be possible. This had started as a reconsideration application, but as the rules did not permit the submission of a reconsideration application, it became a new application. Interestingly, the respondents’ counsel, Reindorf, also an Equality and Human Rights Commissioner (HRC) member, was arguing that the respondents couldn’t receive a fair hearing owing to the unreasonable conduct of Kostakopoulou without any regard to the fact that Kostakopoulou had been waiting for 3.5 years for the hearing of her claims and had been injured by the respondent’s actions in all aspects of her life.

EJ Perry noted that he would set aside strike-out time for Reindorf to present submissions supporting the respondent’s strike-out application on Wednesday. EJ Perry noted that Kostakopoulou would also be allowed to make strike-out submissions and requested  Kostakopoulou to highlight the basis of her strike-out application, which was based on the grounds that the respondent had submitted a deficient bundle of 1700 pages, out of which 490 were duplicates and included non-readable pages.

Kostakopoulou also requested the factualisation of the respondents’ allegations of misconduct of not performing her duties in good faith, which they and BET had refused, arguing that she could be cross-examined without knowing the precise content of the allegations and that it would not take the respondents more than 15 minutes to answer five short questions or information on a short table Kostakopoulou had provided.

Kostakopoulou also informed the judge that there were a handful of redacted documents which concealed important information and which, in the interest of justice, they should be disclosed to either her or the panel. One such document included the redaction of a single name, the name of the person who had to sign off the report dismissing Kostakopoulou’s grievances before its release to Kostakopoulou.

Kostakopoulou stressed that the respondents had argued that the redaction was due to legal privilege – a ground Kostakopoulou found unsound – and had been confirmed by EJ Broughton, who had also said that the application could be renewed at the final merits hearing together with the refusal of the electronic inspection of five email communications by the respondents.

Kostakopoulou noted further that as the Respondents had refused to invite the student Professor Sanders used in order to write the false allegations of 12 January 2020 and there was no one to corroborate his hearsay, the panel should place little weight on Sander’s letter. Kostakopoulou noted that she had even appealed to the Employment Appeal Tribunal the decision refusing the presence of Ms Opik and Mr Sharma at the hearing as the tribunal’s own witnesses.  

 

Overall, Kostakopoulou’s access to justice and vindication was initially delayed for three years, has been obstructed at every level of the UK justice system and has now been denied.  This media has written on these issues.

https://new-economy.gr/2023/07/05/did-warwick-university-vice-chancellor-pursue-whistle-blower/

https://new-economy.gr/2022/10/23/similarities-kostakopoulou-case-and-johnny-depp/

 https://new-economy.gr/2021/12/12/kostakopoulou-warwick-case/

https://new-economy.gr/2022/05/28/whistle-blower-kostakopoulou/

https://www.dorakostakopoulou.com/

Intro to The Kostakopoulou case

A law professor and whistle-blower Kostakopoulou brings London High Court Case against Warwick University for libel, malicious falsehood and human rights violations. Professor Kostakopoulou, an internationally recognised professor of European Law and Policy, was suspended from Warwick University, having been accused by Prof Christine Ennew, OBE, Provost, and Prof Andrew Sanders, Head of Warwick University Law School, after raising a formal grievance against them for unlawful and unethical conduct. The suspension of Kostakopoulou imposed considerable damage on her students who were instructed to take alternative courses. As well as being banned from campus, the library, and all email communication with her colleagues, Kostakopoulou was prohibited from supervising her undergraduate and graduate students who suffered as a consequence of her suspension.

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