“If as a consequence of a finding of employment status, Mr Soteriou were to loose his VAT registration, that too might result in penalties against him alone (the respondents would not be involved here) as well as a loss of the benefits of effective VAT exemption on a number of private purchases. We find that far from being a victim of Mr Brinton’s threatening and overbearing manner and being forced to maintain a status of self-employment for fear of loosing his job, we conclude that Mr Soteriou was the prime mover in ensuring that his self employed status was preserved following the contributions agency investigation. Not only that, but he made fraudulent statements to the investigators, knowing full well that the true position would have prejudiced that status. Mr Soteriou had sought to portray Mr Brinton as “a fraudster” (his own word) who forced Mr Soteriou to go along with his tax evasion tactics. While Mr Brinton was no doubt aware that some of what Mr Soteriou was telling Mr Everett (the expert engaged to advise them on self-employed status) was wrong or at least questionable, the main blame lies with Mr Soteriou. Accordingly we find that it would be against public policy to allow Mr Soteriou to come to this tribunal and try to claim the benefits accorded to employees under the employment rights legislation. He volunteered to exclude himself from the employment protection system from the outset, he made no effort to regularise his position when it might have been argued that his status had changed, and he positively misrepresented the position to the authorities when his status was challenged. We can only agree with Miss Eady that Mr Soteriou cannot succeed in defeating the taint of illegality and that having knowingly committed a fraud under a contract in the way that Mr Soteriou has acknowledged he cannot now come to this tribunal to pursue a legal claim based on that contract. The application is therefore refused in all respects.”
“It is clearly the same contract and to any extent that different claims are now made based upon that contract, it is, in my judgment, nevertheless the same contract and the parties are bound by those findings. It follows therefore that the contract is illegal and unenforceable.”
“when an issue has been decided, litigants cannot be permitted to keep returning to the court with new arguments”, and he quoted Sir James Wigram V.C. in Henderson v Henderson [1843] 2 HARE 100, 115. “…where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reassonable diligence, might have brought forward at the time”. (italics my addition of further passage from judgment). This case seems to bridge the two aspects of res judicata, estoppel of an issue already determined and abuse, but the passage from Henderson seems to be referring to the abuse type of case. In this context, ‘special circumstances’ are required, and it is noteworthy that ‘negligence, inadvertence or accident’ do not appear to be regarded as ‘special circumstances’. Also in Green statements are made as to issue estoppel. Earlier in the judgment, Fox J. points out that the “identity of subject matter” between the two proceedings “may arise from a cause of action estoppel or from issue estoppel.”
“It therefore appears that there are powerful grounds for the view that Walton J. wrongly construed the rent review clause in the parties’ lease, and that he did so by virtue of an approach to the question of construction which was wholly incorrect in law”
“It is appropriate to commence by noticing the distinction between cause of action estoppel and issue estoppel. In… (cause of action estoppel) the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not…permit the latter to be re-opened. …”
“It will be seen that this passage appears to have opened the door towards the possibility that cause of action estoppel may not apply in its full rigour where the earlier decision did not in terms decide, because they were not raised, points which might have been vital to the existence or non-existence of a cause of action.”
“Issue estoppel, too, has been extended to cover not only the case where a particular point has been raised and specifically determined in the earlier proceedings, but also that where in the subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier. In Fidelitas Shipping Co. Ltd. V V/O Exportchleb [1966] 1 Q.B. 630, 642 Diplock LJ said (with my omissions): “…the parties to …(a) suit are bound by the determination of the issue. Their only remedy is by way of appeal…and, where appropriate, an application…to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence… The determination of the issue between the parties gives rise to …an ‘issue estoppel’. It operates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined. The principle was expressed…in Henderson v Henderson…” “…the parties to …(a) suit are bound by the determination of the issue. Their only remedy is by way of appeal…and, where appropriate, an application…to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence… The determination of the issue between the parties gives rise to …an ‘issue estoppel’. It operates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined. The principle was expressed…in Henderson v Henderson…”
“That doctrine…may be stated thus: a party…is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and that could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him”
“…there is room for the view that the underlying principles upon which estoppel is based, public policy and justice, have greater force in cause of action estoppel, the subject matter two proceedings being identical, than they do in issue estoppel, where the subject matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not…In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstances that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was speccifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in “special circumstances” inflexible application of it may have the opposite result…”
“If a judge has made…perhaps a very egregious mistake…and a later judgment of a higher court overrules his decision in another case, do considerations of justice require that the party who suffered from the mistake should be shut out…from re-opening that issue?”
“In my judgment a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel should be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from the subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not possess. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case”
“The reliance on “new law” in the proviso was a new departure. It was conceded before your Lordships that the presentation of a new argument or the discovery of a previously overlooked authority would not suffice: the new law must take the form of a new decision; but it seems that this could come about by a lucky accident or even as a result of encouraging another litigant to take the same point... It appears from this review that there are significant arguments in favour of the proposition that issue estoppel constitutes a complete bar to relitigating a point once it has been decided but I am now of the opinion that the court can, and in exceptional circumstances should, relax that rule.”
“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse), that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty, but where those elements are present, the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.”
“Save in special circumstances, it is contrary to public policy and may be an abuse of the process of the court to attempt to re-open new proceedings in a case which has already been litigated and finally determined by a court or tribunal in proceedings between the same parties or issues which could have been litigated properly between the parties in relation to the subject matter of the earlier litigation. It is unjust for a party who spent time and money in obtaining a final determination of the claim or an issue in a claim to be faced with fresh proceedings from the other parties seeking to re-litigate the same cause of action or the same issue”
“In the view of the majority of this appeal tribunal, however, where both employer and employee knowingly commit an illegality by way of fraud on the revenue in the payment and receipt of the employee’s remuneration under the contract of employment, which is an essential part of such a contract, then we think that there can be no doubt that this does turn it into a contract that is prohibited by statute or common law, and consequently the employee is precluded from enforcing any employment rights she might otherwise have against her employer. The incidence of income tax frauds, both large and small, is so rife that they cannot be brushed on one side…”
“In cases where the contract of employment is neither entered into for an illegal purpose nor prohibited by statute, the illegal performance of the contract will not render the contract unenforceable unless in addition to knowledge of the facts which make the performance illegal the employee actively participates in the illegal performance. It is a question of fact in each case whether there has been a sufficient degree of participation by the employee.”
“(2)Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. (3)Everyone charged with a criminal offence has the following minimum rights: (a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b)to have adequate time and facilities for the preparation of his defence; (c)to defend himself in person or through legal assistance of his own choosing or,if he has nto sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e)to have the free assistance of an interpreter if he cannot understand or speak the language used in court” (a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b)to have adequate time and facilities for the preparation of his defence; (c)to defend himself in person or through legal assistance of his own choosing or,if he has nto sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e)to have the free assistance of an interpreter if he cannot understand or speak the language used in court”
“Article 6 does not itself guarantee any particular content for civil rights and obligations in the substantive law of the contracting states”
“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted,”
“In two types of case, it is well established that illegality rendered a contract unenforceable from the outset. One is where the contract is entered into with the intention of committing an illegal act; the other is where the contract is expressly or implicitly inhibited by statute….” 53. He continued in paragraph 38: “…in cases where the contract of employment is neither entered into for an illegal purpose nor prohibited by statute, the illegal performance of the contract will not render the contract unenforceable unless in addition to the knowledge of the facts which make the performance illegal the employee actively participates in the illegal performance. It is a question of fact in each case whether there has been a sufficient degree of participation by the employee.”
“But knowledge by itself is not…enough. There must be knowledge plus participation…”
“…the question is whether the method of performance chosen and the degree of participation in that illegal performance is such as to “turn the contract into an illegal contract”…not every illegality in performance will turn a contract into an illegal contract.”
“Nonetheless the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”
“even assuming Article 6(1) to be applicable, the requirements of this provision were not violated.”
“The real criticism of the present rules is not that they are unprincipled but rather they are indiscriminate in their effect and are capable therefore of producing injustice”
“…there is to be derived the principle invoked by the appellant in the present case, viz., that if A puts property in the name of B intending to conceal his (A’s) interest in the property for a fraudulent or illegal purpose, neither law nor equity will allow A to recover the property, and equity will not assist him in asserting an equitable interest in it” which related to the purchase of a property for an illegal purpose. Lord Goff then referred to theNew Zealand Illegal Contracts Act 1970 , and its twofold provision that first any illegal contract was of no effect but that secondly the court had discretion to grant appropriate relief. It was in this context that Lord Goff urged an examination of the English law by the Law Commission and spoke of the indiscriminate nature of the present law. It seems to me, therefore, that Lord Goff was concerned in that case only with illegal contracts formed for an illegal purpose, as having an indiscriminate effect and that in the context of a property transaction. He did not refer to illegal performance of contracts that were legal when formed, nor to the element of ‘knowing participation’ that already formed part of the common law according to Scarman LJ in Ashmore and others. Lord Goff was in the minority. In one of the majority speeches, Lord Browne-Wilkinson said that “…the Plaintiff…is entitled to recover if he is not forced to plead or rely on the illegality, even if it emerges that the title on which he relied was acquired in the course of carrying through an illegal transaction”
“Moreover the court is not persuaded that the House of Lord’s decision that as a matter of law there was no duty of care on the applicants’ case may be characterised as either an exclusionary rule or an immunity which deprived them of access to court…The House of Lords… decided not to extend liability and negligence into a new area. In so doing, it circumscribed the range of liability under tort law. That decision did end the case, without the factual matters being determined on the evidence. However, if as a matter of law, there was no basis for the claim, the hearing of evidence would have been an expensive and time-consuming process, which would not have provided the applicants with any remedy at its conclusion. There is no reason to consider the striking-out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court. In such a procedure, the plaintiff is generally able to submit to the court arguments supporting his or her claims on the law and the court will rule on those issues at the conclusion of an adversarial procedure. Nor was the court persuaded by the suggestion that, irrespective of the position in domestic law, the decision disclosed an immunity of fact or practical effect due to its allegedly sweeping or blanket nature. That decision concerned only one aspect of the exercise of local authority’s powers and duties and cannot be regarded as an arbitrary removal of the court’s jurisdiction to determine a whole range of civil claims… Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law…it is not enough to bring Article 6(1) into play that the non-existence of a cause of action under domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm..”
“It is not consistent with the rule of law in a democratic society with the basic principle underlying Article 6(1) – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a state could, without restraint or control by the convention enforcement bodies, remove from the jurisdiction of the courts, a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons”
“…Article 6 … applied only to civil rights which could, on arguable grounds, be recognised under domestic law and where the restriction on the right of access was procedural in nature…”
“Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle and it is also clear that Article 6 is in principle concerned with procedural fairness and integrity of the state’s judicial system”
“The applicability of such exclusionary rule has to be decided afresh in each individual case… on these grounds the Strasbourg court held that the English court had breached Article 6 by striking out the claim… without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The court said that the police had been granted a “blanket immunity” which was disproportionate and an unjustifiable restriction on the Osmans’ right of access to the court.”
“In so far as the Osman case… underlined the dangers of a blanket approach so much the better. However, it would be wrong for the Osman decision to be taken as a signal that, even when the legal position is clear and investigation of the facts would provide no assistance, the court should be reluctant to dismiss cases which have no real prospect of success… although a strike out may appear to be a summary remedy, it is in fact indistinguishable from deciding a case on a preliminary point of law.” 71. Lord Phillips then referred to Z v United Kingdom in which the European Court of Human Rights reviewed what it had said in Osman. The European Court quoted the speech of Lord Browne-Wilkinson in Barratt to which I have referred. They endorsed the striking out procedure contained in English law as a procedure by which: 72. “It can be determined at an early stage, with minimal costs to the parties, whether the facts pleaded revealed a claim existing in law”
“…the court considers that its reasoning in the Osman judgment was based on an understanding of the law of negligence…which has to be reviewed … the court is satisfied that the law of negligence…includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of the law concerning that element in this case does not disclose the operation of an immunity. In the present case, the court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to the court of the kind contemplated in Ashingdane… The applicants may not therefore claim that they were deprived of any right to a determination of the merits of their negligence claim. Their claims were properly and fairly examined in the light of applicable domestic legal principles concerning the tort of negligence…”
“Once the House of Lords had ruled on the arguable legal issues… the applicants could no longer claim any entitlement under Article 6(1) to obtain any hearing concerning the facts. As pointed out above, such a hearing would have served no purpose, unless a duty of care in negligence had been held to exist in their case. It is not for this court to find that this should have been the outcome of the striking out proceedings since this would effectively involve substituting its own views as to the proper interpretation and content of domestic law.”
“Once the House of Lords has ruled on the arguable legal issues…the applicants could no longer claim any entitlement under Article 6(1) to obtain any hearing concerning the facts”
“In the present case, the court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law.”
“I fail to see how compatibility with the Convention right in Article 1 of the First Protocol requires the national court to apply a principle of proportionality, so as first to divine, and then to exercise, a discretion to relieve the claimant from the consequences of his own illegal act.”
“Both parties acquired contractual rights under the agreement. “Possessions” in Article 1 is apt to embrace contractual rights as much as personal rights.”
“There are of course many circumstances where statutes empower the executive or the courts to make orders depriving a person of some of his possessions. Compulsory acquisition, and property adjustment orders on divorce, are instances. The exercise of powers such as these prima facie engages article 1. … thus a provision in the Consumer Credit Act empowering the court to refuse to enforce a regulated agreement may engage article 1. … 43. … A law regulating the effect of the transaction between the parties in the public interest does not always escape review under article 1 of the First Protocol. Such a law may infringe article 1 if it creates an “imbalance” between the parties which would result in one party being arbitrarily or unjustly deprived of his possessions for the benefit of the other”. 44.…In my view, consistently with the underlying objective of article 1 of the First Protocol, the relevant provisions in the Consumer Credit Act are more readily and appropriately characterised as statutory deprivation of the lenders rights of the property in the broadest sense of that expression than as a mere limitation of the extent of the rights granted by transactions. The rigid ban on enforcement of security and contractual rights prescribed by (the Consumer Credit Act) … engages Article 1 of the first protocol. The lender’s rights were extinguished in favour of the borrower by legislation for which the state is responsible. This was a deprivation of possessions within the meaning of article 1. …Whether this… was justified and therefore not a breach of article 1, is a separate issue.”
“One must, of course, distinguish carefully between cases where the effect of the relevant law is to deprive a person of something that he already owns and those where its effect is to subject his right from the outset to the reservation or qualification which is now being enforced against him. The making of a compulsory order or of an order for the division of property on divorce are examples of the former category. In those cases it is the making of the order, not the existence of the law under which the order is made, that interrupts the peaceful enjoyment by the owner of his property.”
“The agreement which was entered into in this case was, from the outset, an agreement which was improperly executed. So it was always subject to the restrictions on its executions which… the 1974 Act set out. I would hold that (the lenders) convention rights under Article 1 of the first protocol are not engaged in these circumstances.”
“Article 1 of the first protocol is directed to interference with existing possessions or property rights. The lender never had at any stage in the history of the loan agreement, the right to enforce against Mrs Wilson the repayment of the£5,000 . Neither the 1974 Act as a whole or Section 127(3) in particular constituted an interference with a pre-existing right of (the lender) to enforce repayment by Mrs Wilson of the£5,000 . The Act, in Section 127(3) prevented (the lender) from ever possessing that right. No authority has been cited to your Lordships for the proposition that a statutory provision which prevents the transaction from having the quality of legal enforceability can be regarded as an interference for Article 1 purposes with the possessions of the party who would have benefited if the transaction had had that quality. In my opinion the proposition should be rejected.”
“The extinction of the title of the claimant in those circumstances is not a deprivation of possessions or a confiscatory measure for which the payment of compensation would be appropriate: it is simply a logical and pragmatic consequence of the barring of his right to bring an action after the expiration of the limitation period”
“I am far from persuaded that the circumstances of this case engage Article 1 of the first protocol at all. The claimant’s claim is for the return to him of part of the sum paid by him in the course of an illegal and prohibited act. As, ex hypothesi, the law does not afford to the claimant a remedy, it is arguable (as Mr Marshall did argue) that his claim does not amount to a “possession” at all; still less that the court or the state “deprives” him of it.”
“The court recalls that, according to the established case law of the Convention organs, “possessions” can be “existing possessions” or assets, including claims, in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, National or social origin, association with a national minority, property, birth or other status.”
“The defendants are private limited companies owned and controlled by Mr Brinton. I believe that it is only proper and fair to lift the corporate veil in order to uncover the real defendant in this claim. Undoubtedly, it is Mr Anthony John Brinton.”
“Illegality may affect a tort claim in many ways ranging from an essential part of the story giving rise to liability to some remote aspect of quantum. I favour a broad test…: is the claim or the relevant part of it based substantially (and not therefore collaterally or insignificantly) on an unlawful act? Such a broad test has the merit of simplicity. It does not involve the judge having to make very specific and difficult value judgments about precisely how serious the misconduct is or whether it would result in imprisonment of whether the claimant’s loss is disproportionate to his misconduct. I agree with what McLachlin J said in the passage cited by Ward LJ… “The law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other would be to “create an intolerable fissure in the laws conceptually seamless web.”
“In my judgment, it could not properly be said that the complaint of sex discrimination by dismissal was based on the contract of employment, still less that a claim of such discrimination was so closely connected with or inextricably bound up or linked with the acquiescence by the employee in the unlawful failure by the employer to deduct PAYE and NIC that the court would be seen to be condoning unlawful conduct by the employee.”
“…if parties who have entered into definite and distinct terms involving certain legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”
“I will refer to the various forms which I was asked to complete over the years for the Defendants for the Revenue which proceeded on the basis that I was a self employed consultant working for them. The Defendants took the benefit of that status when it suited them. I relied upon promises and assurances made by Mr Brinton and Janet Brinton pleaded in the existing proceedings. I relied upon those promises and assurances to my detriment as I carried on working without receiving written particulars or confirmation of the promises. I also deferred obtaining the contribution to the car as agreed and finalised with Janet Brinton (paragraph 11 of the existing Particulars of Claim). Submissions will be made on my behalf that in the circumstances pleaded in the existing proceedings, it would be inequitable or unconscionable for the Defendants to rely upon a finding of illegality in the Tribunal. This issue was not raised before the Tribunal”
“While we accept that Mr Soteriou did talk to Janet about having a car, no firm agreement had been reached on that subject and she may not have felt it necessary to report the conversation to her father… 27…given Mr Soreriou’s meticulous recording of such matters in his faxes to Mr Brinton, we do not believe that any firm agreement was ever reached on the part of Mr Brinton to give Mr Soteriou a motor car…It would have been interesting to see how the parties would have dealt with it had Mr Brinton agreed to give Mr Soteriou a car. Clearly he could not have done so in the open manner which was arranged in respect of Mr Santell and Mr McElroy (employees), since that would have been inconsistent with Mr Soteriou’s expressed self-employed status”
“We accept Mr Brinton’s evidence that it was immaterial from his point of view whether Mr Soteriou was employed or self-employed…when Mr Brinton entered into negotiations for the proposed sale of the company, he was prepared to negotiate a long term contract of employment with Mr Soteriou in order to give him the benefits of employment protection…Little wonder …that Mr Soteriou should have been keen to maintain his self-employed status when it was challenged by the Contributions Agency”
“It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt tto dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, or on given facts, abuse it to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caussed by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.”