Hood Sailmakers Ltd v Axford & Anor [1992] UKEAT 684_91_2801

EAT
Hood Sailmakers Ltd v Axford & Anor
[1992] UKEAT 684_91_2801 · 1992-01-28
MR JUSTICE WOOD (PRESIDENT): This is an Appeal by Hood Sailmakers Ltd from an Interlocutory Order made by the learned Regional Chairman sitting at Southampton on the 16th October of last year when he refused an application from the Respondent Company to postpone a hearing before the Industrial Tribunal brought by Mr Axford and Mr Bainbridge alleging unfair dismissal. He is prepared to postpone the Hearing until after the matter could be heard before this Court but at the moment it is due to be heard from the 3rd to the 7th February of this year.The Applicants launched their proceedings by an Originating Application of the 9th May 1991. Mr Axford had been employed for some 20 years by the Company, his basic salary was alleged to be just over £31,000 with bonus benefits of about £14,000. Mr Bainbridge had been employed for a lesser period of time, namely since 1982 and was also on a salary of some £30,000 with £3,500 said to be in bonuses. Mr Axford was a Director of the Company; Mr Bainbridge was Secretary and Accountant to the Company. This Company were sailmakers as their name indicates. Mr Axford had been working with that Company for many many years in a practical way; he had worked his way up from being a Production Manager. The Company had been formed in 1966 and its shareholding was for the main part abroad.The issues before the Industrial Tribunal in these proceedings can be analysed as follows. These two Applicants were summarily dismissed. The reason for the dismissal, if you like, the defence to what would undoubtedly be an unfair dismissal, rely on two grounds. First, conduct in that it is alleged, and there are particulars, that there was a failure to comply with proper directions from abroad. Secondly, that there was some other substantial reason, namely a breakdown in the relationship of trust and confidence between the management of the Company and those who owned and controlled the Company. Those issues are normal issues for an industrial tribunal. The embarrassment which is alleged might occur, if High Court proceedings were to be launched and decided, is on the quantum of the compensation which might be awarded.From a conversation between the Solicitors, who were obviously trying to analyse and dispose of this matter, the Company learnt that there might be High Court proceedings in that the settlement of the industrial tribunal proceedings would not necessarily be the end of the matter, and therefore application was made by the Company for the adjournment pending the hearing of the High Court proceedings.There have been no High Court proceedings. There is no guarantee that those proceedings will be brought within a very short time, therefore the future on that time-table is uncertain. However, Mr Belben for the Company, submits that unless there is a stay on the industrial tribunal proceedings a position may arise such as arose in O'Laoire v. Jackel International Ltd [1991] ICR 718 where in fact the employee had received the maximum amount in the industrial tribunal, £8,000, and there had been no possibility of setting it off against damages recovered in the High Court in other proceedings. That of course is a problem which has been thrown up by O'Laoire . It may be that that problem can be met in some way by the industrial tribunal requiring an agreement between the parties that there will be a set off of that sum against any future damages awarded. It may be that an industrial tribunal could adjourn the question of compensation after deciding what sometimes has been called "liability". There may be other ways of dealing with this matter although at present without full argument it seems to us unlikely that there is jurisdiction in an industrial tribunal to require an undertaking. There must be several ways in which this matter could be dealt with so as to ensure that there was fairness between the parties on that score. Mr Belben's main point was that to allow the industrial tribunal proceedings to continue was to allow the Applicants an unfair tactical advantage. He used that phrase, and it is a happy phrase, to describe the way in which he was putting the case. That indeed was the main thrust of his case coupled with the comment that there are issues which will be aired in the future in the High Court by way of what he termed a "counterclaim" should Mr Axford and Mr Bainbridge bring proceedings in that Court. Until the industrial tribunal proceedings have been heard, if they are to continue, it does not seem likely that it will be necessary for Mr Axford and Mr Bainbridge to bring High Court proceedings and indeed Mr Bainbridge may never do so, but the counterclaim which is suggested exists is a claim of a breach of duty by the two Applicants as trustees of a pension fund in the Company, it is a breach of trust. What is suggested is that there came a time in May 1986 when an earlier pension scheme, which was a final salary scheme, was wound up and after payment towards certain benefits and other matters the residue of the amount outstanding was to be transferred to the Company. In fact, under the new scheme, which was a money purchase scheme, the money was transferred from the old scheme into the new scheme and it is suggested therefore that the Company suffered in that there was a breach of trust by the trustees because they held that part of the monies in trust for the Company. Enquiries were made by this Court of those advising the two Applicants at the time; they included Messrs Slaughter and May, and Messrs Anthony Gibb Pension Services Ltd; the matter was clearly looked into and carried out under advice. However, it seems to us that that claim is a claim which would normally be brought in the Chancery Division and would not normally be treated as a counterclaim if proceedings were brought by the Applicants in the Queen's Bench Division for wrongful dismissal. It is obvious from what we have just said that we consider that the pension issue is really a very separate issue from the wrongful dismissal or unfair dismissal issues.If that is right we must then look to see whether the Decision of the learned Chairman and his Members can be criticised. It is a discretionary Decision therefore as we have stated recently one must look to see whether there was power to make the Order, there clearly was. Whether there was a clear failure to follow a legal principle, such as the Nassé case in the case of discovery, there was no failure that we can see in this case. Finally one must test it on the basis of the Wednesbury rules. Did this Tribunal fail to take into account something it should take into account? Did it take into account something it should not have taken into account? Or was the Decision plainly wrong?A number of cases have been cited to us. The reason they have been cited to us is because this problem has become very prevalent. The matter was referred to quite recently in the case of Delaney v. Staples [1991] ICR 331 where right at the end of the Judgments in the Court of Appeal the learned Master of the Rolls referred once again to this problem of duplication of jurisdictions and the inability of applicants to bring their cases in one court. He quoted from an early Decision of Mr Justice Phillips and from another Decision in the House of Lords with a comment from Lord Wilberforce and from a comment which this Court made, we said this:
"At present an applicant finds it difficult to understand why he cannot recover all that is due to him in one Court, it must tend to bring the law into disrepute"
and on that the learned Master of the Rolls comments:

"That is unanswerable"

and ends his Judgment

"Can nothing really be done"

We would once again urge those responsible for legislation and policy to reconsider the whole question of these various jurisdictions and whether the time has not arrived for a fundamental reassessment and rethink on this whole matter.However, the other cases which were cited to us Cahm v. Ward and Goldstone [1979] ICR 574; Carter and Credit Change [1979] ICR 908; First Castle v Electronics & West [1989] ICR 72 and most recently Bowater plc v. Charlwood [1991] ICR 798. They all set out the overall approach of this Court in different circumstances and in the Bowater case an attempt was made by this Court to analyse the cases and produce an overall issue, a test, for this type of problem and looking at that matter we say on page 804, and indeed we adopt:
"in today's climate the correct basis for the question to ask ourselves is: `In which court is this action must conveniently and appropriate to be tried being in mind all the surrounding circumstances including the complexity of the issue, the amount involved, the technicality of the evidence, and the appropriateness of the procedures?'"
That case was cited to the learned Chairman and in looking at the various factors he clearly bore that guidance in mind. This is a case where there is no contract of employment, no specific agreement as to notice and as the learned Regional Chairman comments, the issues do not seem to be really very complex. They can easily be distinguished from First Castle Electronics case and also Bowater plc v. Charlwood .He has looked into the question of the issues, the convenience, he has posed the problem of the capping as indicated in O'Laoire and he and the Members have reached a conclusion that they would not adjourn the industrial tribunal proceedings until a High Court action was brought, were it to be brought. He expresses the view that this was a balancing act and they were exercising a broad discretion, we respectfully agree.The last issue that he considered was the question whether the decision in the House of Lords in Delaney v. Staples which is being awaited, would alter the position? It may, it may not, but in any event if the position is radically altered it seems to us likely that the Tribunal will be able to take it into account and indeed may reserve their decision so they do not give their written reasons until after Delaney has been decided. If it is material to their decision then maybe a further hearing can be ordered before the decision is given so that any argument based on the decision of Delaney in the House of Lords can be taken into consideration.Those are all matters for the learned Chairman of the Tribunal, he exercises discretion. We do not feel able to say here that there are any grounds to say, or to indicate, that the Tribunal was wholly wrong in the Decision which it reached.It follows therefore that this Appeal must be dismissed.