Galdikas & Ors v DJ Houghton Catching Services Ltd & Ors [2016] EWHC 1376 (QB)

Case No HQ14P05429[2016] EWHC 1376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 June 2016
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
ANTANAS GALDIKAS & OTHERSClaimantsDJ HOUGHTON CATCHING SERVICES LTDDefendantsJACQUELINE JUDGEDefendantDARRELL HOUGHTONDefendantGANGMASTERS LICENSING AUTHORITYDefendant
John Hendy QC and Harry Lambert (instructed by Leigh Day) for ClaimantsChristopher Kennedy QC and Gudrun Young(instructed by Clyde & Co Claims LLP) for First to Third DefendantsKate Gallafent QC and Robert Lazarus(instructed by Mills & Reeve LLP) for Fourth DefendantHearing Hearing date: 11 & 12 May 2016
JudgmentMr Justice Supperstone :Introduction
[1]The Claimants are six individuals who allege they were trafficked from Lithuania and subjected to severe labour exploitation. The Claimants have all been confirmed to be victims of trafficking by the UK Human Trafficking Centre or the Home Office. The claims encompass claims in, inter alia, breach of contract, breach of the Agricultural Wages Act 1948 (“the Act”), negligence, harassment and assault. The Claimants allege they have suffered loss and damage, including personal injury, distress and unpaid wages, as a result of the Defendants’ wrongful acts.[2]The First Defendant is a limited company engaged in the supply of labour to chicken farms in the United Kingdom. The First Defendant is run by the Second and Third Defendants, who are the company secretary and director respectively. I will refer to the First to Third Defendants collectively as “the Houghton Defendants”.[3]The Houghton Defendants accept that the Second and Third Defendants were jointly responsible for the First Defendant.[4]The Fourth Defendant (“GLA”) is a statutory regulatory body responsible for the licensing of gangmasters.[5]The Claimants’ solicitors represent ten other Claimants (“Antuzis and others”), who make the same or similar claims against the Houghton Defendants and GLA. The Claimants applied for a stay in those proceedings which was granted by an order of Senior Master Fontaine on 4 February 2016 (“the Order”).[6]There are four applications before the court: i) The Claimants’ application for strike out and/or summary judgment in respect of all or parts of the Houghton Defendants’ Defences. ii) The Houghton Defendants’ application for strike out in respect of parts of the Claimants’ Particulars of Claim. iii) The Houghton Defendants’ application to set aside the Order in the Antuzis proceedings. iv) GLA’s application that all issues relating to liability as against the Houghton Defendants be tried as a preliminary issue. I shall deal with each application in turn. Application 1: the Claimants’ application for strike out and/or summary judgment in respect of the Houghton Defendants’ defences (1). The claim under the Agricultural Workers Order (“AWO”)[7]The legal framework and applicable principles in relation to strike out and summary judgment applications are not in issue. They are helpfully set out at paragraphs 9-21 of the Claimants’ skeleton argument and paragraphs 12 and 13 of the Houghton Defendants’ skeleton argument.[8]The Claimants set out their pleaded case in Generic Particulars of Claim with individual particulars of claim for each of the six claimants set out in separate appendices thereto. The Houghton Defendants did not respond to the Generic Particulars of Claim, but instead settled individual defences to the individual claims. They are each in a similar form; that being so the parties are agreed that for the purposes of this application it is only necessary to consider the defence of the Houghton Defendants to the claim of Mr Galdikas (“the Defence”). The Claimants contend the Houghton Defendants have not provided a Defence to the Generic Particulars of Claim. The result, they complain, is an abuse of the court’s process with the issues between the parties entirely unclear. The Houghton Defendants have explained why they proceeded as they did (Defence, para 2). What is important ultimately is not the form the pleading takes but the content.[9]The Generic Particulars of Claim allege that the Houghton Defendants entered into contracts of employment with the Claimants, which were subject to the terms imposed by Agricultural Wages Orders (“AWO”) made under the Act, that those terms were breached and that loss and damage flowed therefrom.[10]The Defence admits to “an employment relationship” with each Claimant (para 8). The earliest date of employment among the Claimants was April 2008. The last date of employment among the Claimants was August 2012. Some of the Claimants entered into written contracts of employment. Such written contracts, as in the case of Mr Galdikas, expressly stated that they were contracts of employment and specified that the Claimants were to be paid in accordance with the AWO. The Houghton Defendants do not suggest that the remuneration of any of the other Claimants would not be subject to the AWO. Any attempt to “contract out” of the AWO in relation to the payment of wages is unlawful and void by reason of section 11 of the Act.[11]The relevant AWO each year prescribes (as in the case of the 2010 Order), inter alia:(1) minimum hourly rates of pay applicable to various grades of worker;(2) where the worker is paid by piece work that his pay for each hour shall not be less than the appropriate minimum hourly rate;(3) an overtime rate applicable after 8 hours of work on any day, or on a public holiday, or after 39 hours in any week;(4) an additional supplement is to be paid for work at night;(5) that time spent travelling is to be paid at the minimum hourly rates.[12]The Claimants’ factual case as to the hours they worked (see paras 15-17 of the Generic Particulars of Claim) is not disputed. Most of their work took place at night (since chickens are more docile and more easily caught at night).[13]The Claimants claim they were not paid the prescribed AWO rates for daytime work, overtime, or night work; and that they were not paid at all for travel time.[14]In response the Houghton Defendants plead (at para 11 of the Defence):
“As was common in the industry, Mr Galdikas’ pay was calculated according to the number of birds the team on which he was working caught. The method of calculating the pay and the rate per bird were well understood and accepted by Mr Galdikas and his fellow workers. The catching sheets containing information as to the number of birds caught was sent by the Defendants to a firm of Accountants who then generated payslips based upon them. This allowed the Defendants to understand how much tax and national insurance they had to pay.”
[15]Paragraph 36 of the Defence states:
“It is not accepted that Mr Galdikas’ earnings fell below the National Minimum Wage and he has not advanced particulars to establish the amount of any underpayment. Had Mr Galdikas worked at the minimum wage for a 40 hour week for every week he worked for the First Defendant, he would have earned just under £50,000, more than £7,000 less than he in fact earned.”
[16]However the Claimants’ claim is not by reference to the National Minimum Wage (“NMW”). It is made by reference to the rates imposed by the relevant AWO (which are higher than the NMW, certainly in the case of night rates).[17]Mr Christopher Kennedy QC, who appears for the Houghton Defendants, submits, by reference to the catching sheets that were submitted to their accountants, that the Houghton Defendants (with the assistance of the documentation presently with their accountants), may be able to demonstrate that the Claimants were not paid less than the prescribed AWO rates. It seems to me that there is no real likelihood of them being able to do so. As Mr John Hendy QC, who appears on behalf of the Claimants, observed, it is highly unlikely that even with information from the accountants they will know the number of hours and times of day and night that the Claimants worked.[18]In any event they have had adequate opportunity to obtain the relevant documents from their accountants. Judge Sage, sitting as the Appointed Person on the First Defendant’s appeal against the refusal of its application for a new licence, noted that the Third Defendant “was unable to explain the basis for payments made to his workers” (para 22). She further noted that the Second Defendant, when asked in cross examination how she converted the number of birds caught each week to a payment that complied with the NMW, replied that this was an exercise conducted by their accountants and they did “not do a very good job” (para 26).[19]I consider that if, as appears, the accountants were only informed of the number of birds caught and not the number of hours worked or the times of day during which the work was performed, so that they could calculate the hours that attract the night supplement rate or which hours were overtime hours attracting the overtime rate, the Houghton Defendants have no real prospect of successfully defending the claim under the AWO.[20]The Second and Third Defendants have admitted that workers were not paid for travel time. In October 2012 the Second Defendant acknowledged to GLA’s inspectors that “workers are not paid for travel in between jobs even if the journey time between jobs can take sometimes several hours” (see also evidence of Second and Third Defendants at the appeal hearing before Judge Sage in November 2015).[21]The only issue between the parties is whether travel to the first farm is work time. Article 18 of the AWO provides: “18. Travelling(1) Subject to the provisions of this article, a worker shall be paid no less than the minimum rate of pay as set out in this Order for their grade or category when for the purposes of their duties they are travelling.(2) For the purposes of paragraph (1), a worker is to be treated as travelling if, for the purposes of their duties, the worker: (a) is in the course of a journey whether on foot or by means of transport; (b) is waiting at a point of departure to begin their journey by means of transport; … (d) is waiting at the end of a journey for the purpose of carrying out their duties or waiting to receive training under article 19, but not including any time which the worker spends taking a rest break before their duties are due to be carried out or before such training is due to be received.(3) A worker is not to be treated as travelling if: (a) their normal work does not require assignment work (comprising travelling from one assignment to the next at places which are not occupied by the worker’s employer); (b) the travelling is incidental to the worker’s duties (in that the worker’s duties carried out in the course of their work are not as a matter of necessity carried out in the course of the travelling, as would be the case where driving a tractor or combine harvester); and (c) the travel time is time when the worker would not otherwise be working.(4) A worker is not to be treated as travelling if they are travelling (other than for the purposes of performing their work) between their home (or an address where the worker is temporarily residing) and their place of work or a place where assignment work as mentioned in sub-paragraph (3)(a) is to be carried out. …” (a) is in the course of a journey whether on foot or by means of transport; (b) is waiting at a point of departure to begin their journey by means of transport; … (d) is waiting at the end of a journey for the purpose of carrying out their duties or waiting to receive training under article 19, but not including any time which the worker spends taking a rest break before their duties are due to be carried out or before such training is due to be received. (a) their normal work does not require assignment work (comprising travelling from one assignment to the next at places which are not occupied by the worker’s employer); (b) the travelling is incidental to the worker’s duties (in that the worker’s duties carried out in the course of their work are not as a matter of necessity carried out in the course of the travelling, as would be the case where driving a tractor or combine harvester); and (c) the travel time is time when the worker would not otherwise be working.[22]At paragraph 74.9 of the Generic Particulars of Claim the Claimants plead that they “were to be paid no less than the AMR [Agricultural Minimum Rate] when for the purposes of their duties they were travelling”. There is no denial of this entitlement in the Defence.[23]In his oral submissions Mr Kennedy submits that travel to the first farm is not work time for two reasons. First, because the travelling is incidental to the worker’s duties (article 18(3)(b)); second, because they are travelling between their home (or an address where the worker is temporarily residing) and a place where assignment work is to be carried out (article 18(4)).[24]I reject this submission. I agree with Mr Hendy that the Claimants are entitled to be paid for this travel time. Mr Kennedy’s reliance on article 18(3)(b) overlooks the fact that sub-paragraphs (a), (b) and (c) are cumulative. Sub-paragraph (b) applies, but sub-paragraph (a) does not: the Claimants’ normal work does require assignment work. Further, article 18(4) does not assist the Houghton Defendants. The Claimants are travelling “for the purposes of performing their work” (see Article 18(2) as to when a worker is to be treated as travelling “for the purposes of their duties”).[25]Accordingly I conclude that the Claimants are entitled to judgment in respect of the Houghton Defendants’ failure to pay them for their work in accordance with the terms of the relevant AWO. (2). The claim for breach of the Gangmasters (Licensing Conditions) Rules 2009 (“the Rules”)[26]In section D1 of the Generic Particulars of Claim the Claimants allege that the Houghton Defendants owed them a duty of care to act reasonably and comply with the Gangmasters Rules. Section 7 of the 2009 Rules provides for civil liability and redress, in the event of breaches of the conditions set out in Schedule 1 Part 2. For the purposes of the present application the relevant Conditions are: Condition 4 (Obligation to act in a fit and proper manner); Condition 7 (Prohibition on charging fees); and Condition 13 (Prohibition on withholding payment from workers). Further, the Claimants allege the Houghton Defendants acted negligently and/or in breach of GLA Licensing Standards (“Standards”) 4.3 (suitable travel arrangements) and 6.3 (welfare facilities).[27]Mr Hendy submits that the Houghton Defendants have not pleaded to the Rules in their Defences, and they have not advanced any case in relation to these allegations. Accordingly CPR 16.5(5) has the effect of deeming the allegations to be admitted. Mr Hendy therefore invites the court to enter judgment for the Claimants in respect of the allegations made by reference to Conditions 4, 7 and 13, and Standard 6.3. In the alternative he submits that the material before the court demonstrates that the Houghton Defendants have no reasonable prospect of defending these parts of the Claimants’ case.[28]Mr Hendy makes two general points. First, the GLA carried out a detailed inspection of the First Defendant’s practices in 2012 and described it as “the worst UK gangmaster ever”. There was no challenge by the First Defendant to the inspection findings. That being so there can be no real suggestion that the First Defendant complied with the Rules. Second, the “thrust” of the Houghton Defendants’ case that it is Mr Mankevicius, not the Houghton Defendants, who is to blame, provides no defence to these causes of action. Under the Rules the First and Third Defendants retain a free-standing liability qua “business” and qua “principal authority” respectively. They could not divest their responsibilities to Mr Mankevicius, an unlicensed gangmaster.[29]The Houghton Defendants’ pleaded case in relation to Mr Mankevicius is that he “was neither an employee of the Defendants nor their business partner. He was in business on his own account” (Defence, para 7). They said “he was not involved in the Defendants’ business” (see Houghton Defendants’ Response to First Claimant’s Request for Further Information under para 7). There was no express denial that he acted as the agent of the Houghton Defendants. However, Mr Kennedy confirmed that they were his instructions. It seems clear from what the Second and Third Defendants said to GLA’s inspectors that that is the case (save to the extent that they accepted he acted as a recruitment agent).[30]However the evidence does not support their case. The GLA’s Licence Decision Report of October 2012 (“the Decision Report”) records the following:
“Worker evidence… suggests Judge and Mankevicius operate together in relation to paying workers, with Mankevicius determining whether pay should be withheld (see payslip from Olega Nesterovas that says ‘speak Edikus’). Mankevicius clearly has an active role within the business – DJ Houghton must ultimately be responsible for his actions.”
Notifying Mr Houghton of the licence revocation on 29 October 2012 GLA wrote:
“… it is clear that Mr Mankevicius plays an integral role within DJ Houghton. Evidence from workers indicates Mr Mankevicius accompanies Miss Judge when payslips are delivered and that Mr Mankevicius determines whether money is withheld from workers. Miss Judge even refers workers to Mr Mankevicius for an explanation for why money is withheld. Therefore, the GLA concludes that DJ Houghton is responsible for the actions of Mr Mankevicius towards the workers as he is closely connected with the company. It does not matter whether DJ Houghton consented to or had full knowledge of Mr Mankevicius’s activities or not.”
[31]The specific issues Mr Hendy focussed on in his oral submissions in relation to the Conditions and the Standards are:(1) the fees paid by the Claimants for “work-finding services” (Condition 7);(2) prohibition on withholding payment to workers (Condition 13); and(3) the failure to provide the Claimants with facilities to wash, rest, eat and drink (Standards 4.3 and 6.3).

Prohibition on charging fees (Condition 7)

[32]Condition 7 provides that “A licence holder must not charge a fee to a worker for any work-finding services”.[33]The Decision Report noted:
“Judge was adamant during the inspection that no job finding fee is charged. However that is contrary to the workers’ statements and the comparison of payslips against cheques cashed at the Money Shop. Even if Mankevicius receives the money, DJ Houghton is still deducting a job finding fee.”
[34]The Houghton Defendants do not deny that the Claimants were charged a fee in the order of £350 which was deducted from their wages. What they plead (at para 44 of the Defence) is that “No deductions from Mr Galdikas’s wages were made either at the instigation of or for the benefit of any of the Defendants”.[35]That is no defence. The deductions were made by the Houghton Defendants. Further they knew that a job finding fee was being charged by Mr Mankevicius who was, it is clear, acting as a recruitment agent for them.

Prohibition on withholding payment to workers (Condition 13)

[36]The Generic Particulars of Claim and Appendix 1 thereto in respect of Mr Galdikas allege that the Houghton Defendants made unlawful deductions from or withheld wages for an “employment fee” (that is, fees charged to workers for work-finding services), in relation to rent and for “spurious reasons”. The Defendants deny this allegation. Their case is that “No deductions from [the Claimants’] wages were made either at the instigation of or for the benefit of any of the Defendants” (Defence, para 44). In so far as there were any deductions “for spurious reasons” they suggest that “these allegations relate to the actions of Mr Mankevicius for which they are not liable” (Defence, para 26). The Second and Third Defendants aver that Mr Mankevicius also extorted money from them, and that any money which he stole or extorted from Mr Galdikas was not stolen or extorted at the instigation or for the benefit of the Defendants (Defence, paras 42 and 43).[37]The findings in the Inspection Report (at page 7) support the Claimants’ case:
“The pay slips that have been supplied by the workers records a deduction of £50 taken over 7 weeks making the sum of £350 withheld by DJ Houghton for the work finding fee. £40 is also taken for accommodation charges.”
The inspector in the Decision Report said that the Third Defendant had “not been candid and truthful with the GLA” when declaring that he made no deductions from wages in respect of accommodation he owned and provided for workers; and he was satisfied that amounts were deducted for accommodation (£50 a week). During the appeal hearing in November 2015, when asked about the disparity between payslips and amounts written on pay cheques the Second Defendant denied that she deducted £90 from workers’ wages. However Judge Sage concluded that her evidence to the Tribunal on this issue “lacked credibility and at times her answers were evasive” (para 25).[38]The Houghton Defendants contend in their pleaded case that “Mr Galdikas’s claim for unpaid wages including a claim for unlawful deductions was brought before the Employment Tribunal [‘ET’] in 2012 and compromised”, and that any such claim is barred by the compromise (Defence, para 35). Mr Kennedy does not suggest that the claim under the AWO is barred, but he does maintain that any claim for unlawful deductions from wages is barred.[39]This contention cannot in my view succeed. The ET claims were claims for compensation solely in respect of two weeks of unpaid wages and a short period of holiday pay, as was confirmed by the Houghton Defendants in their ET3 Reply to the claims. Upon the Houghton Defendants providing a cheque for £811.96 on 2 September 2012 in respect of holiday pay, and on showing that a cheque for £468.17 had been issued in favour of the First Claimant on 24 August 2012, and providing an additional cheque for £39.58 on 14 December 2012, the First Claimant’s claim was withdrawn. No settlement agreement was concluded. Mr Hendy accepts that the Claimants will have to give credit for any sums received in the ET proceedings for unlawful deductions from wages.[40]I consider that the Houghton Defendants have no real prospect of successfully defending the allegation that unlawful deductions were made from the Claimants’ wages.

Lack of facilities to wash, rest, eat and drink (Standards 4.3 and 6.3)

[41]The Generic Particulars of Claim include allegations that the Claimants had to use the time spent travelling in the minibuses to sleep, that working conditions were usually poor, and that the Claimants were filthy because they had no protective clothing, and there were no adequate washing facilities.[42]The Defence contains no denial to the allegation that there was a lack of facilities to wash, rest, eat and drink.[43]The Houghton Defendants accept that “the work was hard and took place in unpleasant conditions” (Defence, para 22). Paragraph 23 of the Defence states:
“… The issue of facilities for washing at the farms was a matter over which the control of the First Defendant was limited. The Third Defendant had pressed for better facilities but without noticeable success. Again, whatever findings are made as to the working conditions, they did not amount to mistreatment of Mr Galdikas.”
[44]The issue, Mr Hendy contends, is not whether the working conditions amount to “mistreatment” (whatever that means in law), but whether they amount to actionable wrongs as alleged in the Generic Particulars of Claim (see sections D1 and D7). In response to the First Claimant’s Request for Further Information the Houghton Defendants said that from the Third Defendant’s perspective “things were getting better but it was a slow process”.[45]Standard 4.3 (travel arrangements) provides, so far as is material:
“A license holder must not arrange work for a worker… if, in order to take up that work the worker must live away from their UK home, unless the license holder has taken all reasonable steps to ensure that: • … suitable arrangements have been made for them to travel to such accommodation.”
[46]Standard 6.3 (Safety at Work) provides that:
“A license holder must co-operate with the labour user to make sure that: • adequate and appropriate Personal Protective Equipment (PPE) is provided… • adequate arrangements have been made to provide welfare facilities (sanitary conveniences, washing facilities, drinking water, facilities for changing clothes and for rest and consuming food and drink) where it is reasonably practicable to do so or if it is legally required, …”
[47]The GLA inspector found the Houghton Defendants to be in breach of both Standards 4.3 and 6.3.[48]In relation to Standard 4.3 the inspector wrote in the Notice of Licence Revocation:
“The GLA considers that sleeping in a minibus is not suitable accommodation when a worker is away from home.”
In relation to Standard 6.3 the inspector wrote:
“Although you claimed that PPE was provided, the GLA is satisfied on the weight of evidence provided by the workers that no PPE is given to the workers by DJ Houghton. Furthermore, there is no evidence that DJ Houghton has co-operated with its clients for the provision of PPE.”
[49]I do not consider that the Houghton Defendants have any real prospect of defending the allegations of lack of facilities to wash, rest, eat and drink (Standards 4.3 and 6.3). (3). Provision of accommodation[50]The Generic Particulars of Claim set out a series of allegations relating to housing conditions. It is the Claimants’ case that it was a term of the licences/tenancies relating to the dwellings provided for them that they would be “fit for human habitation”, and that the Houghton Defendants failed to keep them fit for human habitation (para 94). Further, Mr Hendy submits, that accommodation must be fit for human habitation was also required by the AWO (see para 31 and meaning of “other accommodation”).[51]There is an issue between the parties as to whether the Houghton Defendants had control over all the properties in respect of which accommodation was provided to the Claimants. However, even assuming for present purposes that they did have the necessary control over the properties, and that as Mr Hendy submits, for the purposes of the AWO it is only necessary to show that the properties were provided by the Houghton Defendants, there is still an issue as to the condition of the accommodation. It is the Second Defendant’s case that her properties were properly maintained and not generally over-crowded, but that managing them was made more difficult by the way in which they were treated (Defence, para 21(i)).[52]The GLA Inspector concluded that “the accommodation DJ Houghton houses its workers in is over-crowded, contrary to the requirements of Standard 4.1”, and that the GLA visits to three named properties also identified problems with damp and mould in the properties (see Notice of Licence Revocation at pp.5-6).[53]However I am not satisfied that the Claimants’ contention that the accommodation provided to them was not fit for human habitation can be determined on this application. (4). The Defence has not been verified by a proper statement of truth[54]The Claimants contend that the Defence should be struck out on the basis that Mr Bleasdale of Clyde & Co, the Houghton Defendants’ solicitors, signed the statement of truth by reference to his own belief, not that of the Houghton Defendants, contrary to 22 PD 3.7. Further, and what Mr Hendy describes as “the principal deficiency here” (Claimants’ skeleton argument, para 153) is that paragraph 14 of the Defence is false, as the Second and Third Defendants must have appreciated when they authorised Mr Bleasdale to sign the statement of truth. The Second Defendant had deducted money from the wages of workers to pay Mr Mankevicius for finding them employment with the Houghton Defendants. There is no application to amend the Defence so the false statement is still advanced before the court.[55]Mr Kennedy submits that the error made by Mr Bleasdale is an error of form rather than substance (Bank of Ireland v Philip Pank [2014] EWHC 284 (TCC)). Clyde & Co subsequently confirmed by letter of 4 December 2015 that the content of the Defence has been agreed and verified with the Defendants. The Houghton Defendants’ instructing solicitors had instructions to sign on their behalf. Mr Kennedy states that, subject to the court’s permission, an amendment will be made to the pleading to reflect that.[56]I consider that the Houghton Defendants should be allowed to make the amendment requested rather than the Defence being struck out. The fact that paragraph 14 of the Defence contains a false statement does not, in my view, affect the decision whether or not to strike out the Defence because Mr Bleasdale signed the statement of truth by reference to his own belief, not that of the Houghton Defendants.

Application 2: the Houghton Defendants’ application for strike out

[57]The Houghton Defendants’ application to strike out the Claimants’ claims in their entirety or in part in essence raises two matters: i) The Employment Tribunal proceedings. The Houghton Defendants seek an order that the Claimants be debarred from pursuing claims in these proceedings which they have compromised in the ET; alternatively for an order that all claims for damages arising out of the Claimants employment relationship with the First Defendant (save for the claims for personal injury and harassment) constitute an abuse of the process of the court because they could and should have been brought within the ET proceedings. ii) The Claimants’ claims for personal injury. The Houghton Defendants seek an order that certain of the Claimants’ claims for personal injury are statute barred; alternatively that some claims for personal injury be struck out either on the basis that they are unsupported by medical evidence and/or are so vague that the pleadings disclose no reasonable grounds for bringing them.

The Employment Tribunal proceedings

[58]I can deal with this matter shortly. I reject the contention that there is any compromise agreement which prevents the Claimants from bringing the present proceedings (see para 39 above). Further, in his oral submissions Mr Kennedy did not appear to pursue the contention that all claims for damages arising out of the Claimants’ employment relationship with the First Defendant (save for the claims for personal injury and harassment) should have been brought within the ET proceedings. In any event I would reject this abuse of process contention essentially for the reasons set out at paragraphs 164-168 of the Claimants’ skeleton argument. Many of the heads of claim in the Generic Particulars of Claim are not within the ET jurisdiction; and there was no obligation on the Claimants to litigate the other claims in the ET.

The personal injury claims

[59]The Houghton Defendants put this part of their application to strike out on two bases. First, that some of the personal injury claims (those of Mr Galdikas, Mr Kelpsa and Mr Prokopas) are out of time, and they will need to persuade the court that it is just and equitable that they should proceed. Second, some claims are unsupported by medical evidence and/or are so vague that the pleadings disclose no reasonable grounds for bringing them.[60]As for the second ground, for example, it is said that the information given by Mr Galdikas in relation to his eye injury does not enable the Houghton Defendants to understand the case they have to meet. In respect of the claim by Mr Kelpsa, the Houghton Defendants say that there are two materially different accounts of an event, which they cannot realistically investigate. The contemporaneous one does not refer to the accident being at work at all. The pleaded account lacks coherence in that it is not obvious how a slip on some dirt at a farm belonging to a Third Party gives rise to a cause of action against them. In Mr Prokopas’s case, it is said that the contemporaneous record does not refer to an accident at work; and that he also has similar difficulties in relation to his alleged back injury. As for the ankle injury to Mr Aponavicius, his pleaded account is that he twisted his ankle when he fell between some slats at a third party’s farm. It is not suggested that he reported this, sought medical treatment or that he had time off work.[61]Mr Kennedy, in his oral submissions, emphasised the need for proportionality. These are all, he submits, small claims which will take some considerable time to investigate and determine at significant cost.[62]I accept that these personal injury claims will require robust case management and costs incurred need to be proportionate. However I reject the contention that the claims should be struck out. During the course of oral submissions the parties appeared to agree that it would be sensible if the limitation issue in the cases where it arises be determined at a preliminary hearing. If claims are not statute barred, then claimants are entitled to have them determined by the court, even in the absence of supporting medical evidence. It will be a matter for the court in the exercise of its case management powers to determine how these claims should proceed, having regard to the overriding objective in CPR 1.1. Application 3: the Houghton Defendants’ application to set aside the order in the Antuzis proceedings.[63]The 10 claimants in the Antuzis proceedings have alleged that their claims are “against the same defendants and raise the same issues as those in the Galdikas proceedings”.[64]On 9 February 2016 Master Fontaine made an order pursuant to CPR 23.10 to stay those proceedings. On 15 February 2016 the Houghton Defendants applied for an order to set aside the order of Master Fontaine.[65]On 16 February 2016 the Antuzis claimants’ solicitors wrote to the Houghton Defendants’ solicitors a detailed letter of claim. Leigh Day are solicitors for the Claimants in both sets of proceedings.[66]The Houghton Defendants in their application notice and skeleton argument had raised some procedural points. However Mr Kennedy accepted that the court will focus on the merits of the application. In his oral submissions he made three points: i) First, that whilst it is asserted that the Antuzis and Galdikas claims will be similar, no or no sufficient evidence has been adduced regarding the alleged similarity of the two sets of proceedings. Details of any personal injury claims have not been provided; the details of the injuries set out in the Appendix to the letter of 16 February are extremely brief and vague, and wholly inadequate for any assessment to be made as to whether any of the Claimants has even sustained a potentially actionable injury; and there is no evidence of the likely value of the claims. The more time that elapses the more difficult it may be to investigate them. Further there may also be limitation issues arising. ii) Second, the stay could result in greater costs being expended by the parties. For example, in relation to the issue of pay, Mr Kennedy suggests that it would be less costly to consider the pay of all 16 Claimants in both sets of proceedings at the same time, rather than to do so on two separate occasions. iii) Third, as matters stand any findings of fact made in the Galdikas proceedings would not be binding upon the Antuzis claimants. That being so the stay is very unlikely to ensure that the second set of proceedings will be resolved without a trial.[67]Mr Hendy does not accept these contentions. He describes the situation as being akin to group litigation where it makes good sense for a few claims raising generic issues to be determined first. The Antuzis claimants’ letter of claim refers to and repeats the paragraphs in the Generic Particulars of Claim in the Galdikas proceedings relevant to the Antuzis claims. The claims are plainly broadly the same. Mr Hendy further suggests that in the event the stay were lifted there would be inevitable delays: the Galdikas proceedings will necessarily be on hold whilst the Antuzis proceedings “catch up”.[68]Having regard to the overriding objective, and in particular to proportionality and cost, I do not consider that the stay should be lifted. Application 4: GLA’s application that all issues relating to liability as against the Houghton Defendants are tried as a preliminary issue[69]Ms Kate Gallafent QC, on behalf of the GLA, submits that proceedings against the GLA will only be of value if(1) in respect of the common law action against the GLA, the Claimants establish liability against one or more of the Houghton Defendants, but fail to make a full recovery of the damages awarded; and/or(2) in respect of the Human Rights Act (“HRA”) claim against the GLA, the Claimants establish liability against the Houghton Defendants, but fail to receive “just satisfaction” as a result. GLA does not accept that it owed the Claimants a duty of care at common law, nor does it accept that the obligations on it under the HRA were of the scope alleged by the Claimants. The claims against the GLA raise, Ms Gallafent submits, novel legal issues which are complex, and both factually and legally the claims are distinct from the claims against the Houghton Defendants. The proportionate approach to this litigation in the circumstances, Ms Gallafent submits, is that the liability of the Houghton Defendants be tried as a preliminary issue (although she agrees that what the GLA propose is not a classic preliminary issue).[70]Ms Gallafent referred to the recent decision in D v Commissioner of Police for the Metropolis [2015] 1 WLR 1833 to illustrate the complexity of some of the legal issues on liability and quantum that can arise when considering claims alleging breaches of the HRA, in that case by reason of failures by the defendant’s police force to conduct an effective investigation into the claimant’s allegations of serious sexual assaults. A duty of care is not accepted by the GLA. As Green J observed: “It is important to recall that the HRA is not a tort statute” (para 15). (On damages, see paras 16-41; and on alternative remedies, see paras 42-65).[71]Mr Hendy observes that what is being sought is, in truth, not a preliminary issue at all; rather the suggestion appears to be that the full hearing of the claims against the Houghton Defendants proceeds. During the course of that trial there is bound to be oral evidence from the GLA investigators, who will then have to give evidence again at a second trial on the claim against the GLA. Similarly, the Claimants will need to give evidence twice, which will be unnecessarily traumatic for them.[72]Ms Gallafent does not accept these criticisms of the approach for which the GLA contends. First, the GLA have given and will continue to give disclosure of all documents relevant to the claims against the Houghton Defendants; and their inspectors will attend to give evidence at the trial. They will also, she accepts, have to attend to give evidence at the second trial. However the issues in the two trials are not the same and the focus of their evidence will accordingly be different. There should therefore be no overlap in evidence. The GLA will be bound by the findings made by the court at the first trial. Second, it will not be necessary for the Claimants to give evidence a second time. They will give evidence at the first trial on all matters, including matters relating to their treatment and their medical condition, and will not have to give that evidence a second time.[73]I accept GLA’s contention that in order to ensure that these proceedings are managed proportionately and justly, the claims against the Houghton Defendants should be heard first. The claims against the GLA are, in my view, complex and distinct from the issues that arise in the claims against the Houghton Defendants. I consider that it would be preferable for the GLA issues to be determined after all issues relating to liability as against the Houghton Defendants have been determined.

Conclusion

[74]For the reasons I have given I have reached the following conclusions on the four applications:[75]Application 1:judgment shall be entered for the Claimants, with damages to be assessed, i) in respect of the Houghton Defendants’ failure to pay the Claimants for their work in accordance with the terms of the relevant AWO; ii) for breach of Condition 7 (prohibition on charging fees) and Condition 13 (deductions from wages) of the Rules, and Standards 4.3 and 6.3 in respect of lack of facilities to wash, rest, eat and drink. Application 2: the Houghton Defendants’ application to strike out the Claimants’ claims in their entirety or in part fails. Application 3: the order made by Master Fontaine in the Antuzis proceedings shall not be set aside. Application 4: all issues relating to liability as against the Houghton Defendants shall be tried before the claim against GLA is determined.

Cited in 1 later judgment