British Coal Corporation v Irwin & Ors [1991] UKEAT 267_91_2511

EAT

British Coal Corporation v Irwin & Ors

[1991] UKEAT 267_91_2511 · 1991-11-25

MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory Appeal by the British Coal Corporation from an Interlocutory Order made by the learned Chairman on the 3rd May of this year when an application was made to him by the Corporation that certain proceedings which were then in existence before an Industrial Tribunal at Newcastle-upon-Tyne should be adjourned pending hearings in the High Court.

In order to understand the problems raised it is necessary to go back somewhat in history. The Applicants, seven of them, were, and are, miners in the Durham coal fields. An agreement was reached in December 1921 between the Durham Coal Owners' Association and the Durham Miners' Association which agreed to make a rent allowance for the miners and their families who were not living in accommodation provided by the mine owners. That allowance is now calculated at 25 pence per week. In the 1970's the Board provided no further free accommodation and therefore the miners could be divided into those who owned homes, probably paying for them by mortgages and those who were in council accommodation. The interpretation of the agreement and what has happened over the years will be at issue between the parties although the facts may not be seriously at issue.

In August 1988 the Corporation unilaterally abolished the rent allowance and that gave rise to the present proceedings. A writ was issued in the Newcastle-upon-Tyne District Registry at a Queen's Bench Division on the 28th July 1989 by eight miners who are different from those who are the Applicants in the Industrial Tribunal proceedings and that statement of claim following the writ, simply alleged that they were due to be paid their 25 pence per week, so they claimed arrears; interest and a declaration.

The Defence raised issues upon the agreement of 1921 and what happened thereafter and we are told that a reply has now been served raising estoppel and the proper interpretation of the agreement.

The Originating Applications in front of the Industrial Tribunal were issued in November 1990. The progress of those two sets of hearings are that when the learned Chairman was considering the matter in May of this year the High Court proceedings were just about to be set down and were due to be heard in the early Spring of 1992. That position is now the same except that the proceedings have been set down but the anticipation is still early 1992 for a hearing in the High Court. So far as the industrial proceedings hearings there is no particular indication of how the lists are faring but nevertheless, no doubt the matter could be listed fairly shortly, whether it is before or after the High Court proceedings is not known to us and indeed would not seem to be certain.

The amount at issue between the parties mentioned is small. But there are thousands of others and we are told that the financial issue is likely to be something like £250,000. The contestants in fact, although the individuals are of course, the immediate gainers, are the Corporation and the National Union of Miners, their representation is the same both in the High Court and before the Industrial Tribunals.

The learned Chairman decided that he would not delay the hearings in the Industrial Tribunal and he based his decision on two main factors, although he made it perfectly clear that he was taking all others into account.

Before dealing with those two main factors it is right to note that there is no criticism by Mr Underhill of the directions of law which the learned Chairman gave himself and we must therefore bear in mind that this is a decision reached in the exercise of his discretion by the learned Chairman and the importance of that and interlocutory procedures was emphasised by this Court in Adams v. West Sussex County Council

[1990] ICR 546

and in particular 550 G onwards. There is no doubt here that there was power to make this Order and therefore in criticising it one ought to apply the Wednesbury principles.

The two main factors which influenced the learned Chairman was that first the Applicants before the Industrial Tribunal were different from those in the High Court proceedings and that as a general principle a litigant should be entitled to choose his forum, and the second basis was that he felt that the Wages Act could raise problems which were not necessarily identical with those which were raised in the High Court proceedings. Those two principles are criticised by Mr Underhill.

His general criticisms are the disadvantages of allowing both sets of proceedings to continue were first of all, that it was wasteful to the parties in cost and time; secondly, that there was a risk of conflicting findings and he submitted under that heading that the decision of the High Court would be more authoritative; thirdly, that there were more steps in the appellate ladder, the High Court would go straight to the Court of Appeal of the House of Lords whereas an industrial tribunal would come through this Court before reaching the Court of Appeal; fourthly, he said that there were fewer issues in the High Court and that there might be a question of interest. However, his main submission was this, that the issues in the High Court depended purely and simply on legal matters and that the issues in the industrial tribunal were purely on legal issues and therefore it was really, for the reasons he gave, ridiculous, perhaps that putting it slightly too highly, but it was really a waste of time and money to allow the Tribunal hearing to proceed. It was in everyone's interests that the industrial tribunal matter should be heard after that in High Court.

So far as the first matter is concerned he submits that the Applicants were not wholly disconnected and by that we understood him to mean that it was the same trade union and the same solicitors and the same Counsel and there was a sense of unreality if one did not recognise that really we were dealing here with the same litigants.

Mr Langstaff drew our attention to a recent decision in Doyle & Others v. Northumbria Probation Committee [1991] 4th Vol. AER 294, this was a reserved decision of Mr Justice Henry on issues that were not similar to the present ones but the principle is there reiterated yet again, the well known principle, that litigants should be entitled to choose their own forum and that is set out from pages 301 and 302, and indeed it is a principle which should be upheld unless there are very very strong reasons to the contrary.

In the present position there are different litigants between the two sets of proceedings and it is difficult to see how the learned Chairman could be said to have erred in taking that matter into account, it seems to us that it would be a dangerous precedent if in fact, that particular factor was said to be of very little importance indeed. Mr Underhill pointed out two cases which were adjourned, usually by consent, pending the decision of either the European Court of Justice or perhaps the House of Lords in this country. Those are matters which are rather different. It seems unlikely that they will be adjourned, or they may not have been adjourned, before industrial tribunals; they are more likely to be adjourned by this Court where the same issue point of law is to be raised in other cases. But even taking those factors into account it seems to us difficult to criticise the learned Chairman for having laid stress on the fact of the different identities of those who were the applicants or plaintiffs.

The second point taken, and the one on which, if we understand him, Mr Underhill was placing greatest stress was the second factor where the learned Chairman took the point that the issues under the Wages Act might be rather different from the pure issues of law in the High Court proceedings. It is submitted that the wording of Section 7 of the Act make it perfectly plain that the only issue that can arise under the Wages Act and the industrial tribunal proceedings are brought under that Act, that the only issue must be "were these sums legally payable". Mr Underhill bases his argument on the wording of subsection (1) that reads in its relevant parts:

"In this Part "wages", in relation to a worker, means any sums payable to the worker by his employer in connection with his employment, including - (a)any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise;"

and the submission is that "payable" indicates that it must be contractually payable or payable by some principle of law whether it is through the implication of trust or on some promissory estoppel or otherwise.

Mr Langstaff has submitted that it is dangerous perhaps to reach such a decision at this stage. It depends how the argument is developed in full in front of an industrial tribunal and that may depend on how the facts are ultimately found. It may be that the tribunal hearing the matter will want to find the facts in detail before turning to the law because the facts may be relevant for the interpretation of the case. He has also pointed out that the words "or otherwise" to be found in s.7(1)(a) indicated that they may be routes other than the pure contractual route to be relied on by the Applicants. He also was good enough, in answer to a direct question from this Court to indicate that it was when he saw the Defence in the High Court that the decision was, no doubt on his advice, properly given, that proceedings should be initiated under the Wages Act in industrial tribunals because it is only those tribunals that have the jurisdiction under the Wages Act.

It would be quite wrong for us at this early stage in these proceedings to seek to decide precisely whether or not this claim can be brought under the Wages Act otherwise than purely on the contractual basis of the High Court proceedings and we do not intend so to do.

This is a question essentially of the discretion of the learned Chairman, as Mr Langstaff forcefully pointed out to us, one person might properly in the exercise of his discretion, take one view, another person might take a different view. That is not a matter for us, we are here to examine the exercise of the discretion by this learned Chairman; he took into account a factor, namely the individual choice of the Applicants, he also took into account the possibility that arguments could arise under the Wages Act which when fully developed might not be identical to the arguments raised in the High Court.

In so far as Mr Underhill is worried that additional costs and time may be utilised, of course, the question of costs is always open both in the High Court and in industrial tribunals, although rarely in the latter and the matter can be dealt with by the various Courts dealing with these matters if unreasonable conduct has taken place.

Looking at in the round and bearing in mind all the submissions helpfully made by both Members of the Bar we have reached the unanimous conclusion here that this is not an exercise of discretion with which we should interfere, this Appeal is dismissed.