Medical Services International Ltd (t/a Cromwell Hospital) v Ismail [1993] UKEAT 606_91_1507

EAT
Medical Services International Ltd (t/a Cromwell Hospital) v Ismail
[1993] UKEAT 606_91_1507 · 1993-07-15
MR JUSTICE KNOX : The issue before the Tribunal is an unusual one namely whether or not there is in existence a binding agreement to compromise an appeal and cross appeal from a decision by an Industrial Tribunal sitting at London (South) on four days in July 1991. By that decision, sent to the parties on 23 September 1991, it was held that Mr Ismail's claim that he had been discriminated against contrary to the Race Relations Act 1976 by Medical Services International Limited (trading as Cromwell Hospital), which I shall call "the Hospital", should be dismissed but that his dismissal by the Hospital was unfair. The Hospital appealed against the unfair dismissal decision and Mr Ismail appealed against the dismissal of his claim of racial discrimination. The Hospital's appeal was dated 22 October 1991 and Mr Ismail's answer and cross-appeal was dated 10 December 1991.We heard evidence in exercise of our powers under Rule 23 of the Employment Tribunal Rules, 1980. There was one witness on either side. Mr Ismail gave evidence on his own behalf and Mr Treppass a partner in the solicitors' firm Malkins, which at all material times acted for the Hospital, gave evidence for the Hospital. They both signed a written document which was dated 15th September 1992 ("the written Agreement"). It took the form of a letter headed with the Hospital's name and address and addressed to Mr Ismail. So far as material for present purposes that document read as follows:
"Dear Mr Ismail,
I write to confirm the agreement reached to settle all outstanding disputes between the Cromwell Hospital ("the Hospital") and yourself and all claims that you may have against the Hospital arising out of the employment and the termination thereof by the Hospital on the terms set out in the Schedule below.

SCHEDULE

1.The Hospital will make an ex gratia payment of £10,000 together with a contribution of £5,000 towards your legal costs within 7 days of today.2.Each party will forthwith take all necessary steps to discontinue all current legal proceedings between the parties including the Industrial Tribunal Proceedings, the Employment Appeal Tribunal Proceedings and the High Court Proceedings but excluding proceeding commenced against the Hospital in respect of alleged medical negligence.3.You will forthwith return to the Hospital all documents and any copies thereof relating to the Court and the Tribunal actions referred to in paragraph 2 above with the exception of any documents relating to the claim for alleged medical negligence."There was also a clause restraining disclosure of (inter alia) the settlement terms by Mr Ismail and another requiring him to repay on demand the sums referred to in clause 1 should he be in breach of the non-disclosure undertaking. Mr Ismail did not dispute that he had signed the document and had previously read and understood it. There can be no doubt but that on its face the written Agreement required both the appeal and cross-appeal from the Industrial Tribunal decision mentioned above to be withdrawn. Finally so far as this document was concerned it should be mentioned that it was dated the 15th September 1992 and was as already stated signed both by Mr Treppass, in his firm's name, on behalf of the Hospital and by Mr Ismail under the sentence "We hereby agree the above terms of settlement."So far as the law is concerned the decision in Eden v. Humphries & Glasgow [1981] I.C.R. 183 is authority that there can be a legally binding compromise of an appeal to this Tribunal from an Industrial Tribunal decision.Mr Treppass wrote the next day, the 16th September 1992, to this Tribunal confirming that the Hospital and Mr Ismail had reached a settlement under which all claims had been resolved and it had been agreed that each party would withdraw their appeal and cross-appeal to this Tribunal. This letter in our view provides confirmation of Mr Treppass' evidence to us regarding the date when the written Agreement was signed, that is to say on the date it bore which we accept and not a day or two later as Mr Ismail claimed in his evidence. That is however a somewhat peripheral issue.There was no dispute before us but that Mr Ismail collected at Mr Treppass' office a cheque drawn on the latter's firm's bank account for £15,000 which Mr Ismail presented at the bank next to that office and drew out in cash that same day. Mr Ismail has made no move to repay that sum or any part of it.The area of factual dispute concerns whether the agreement between Mr Ismail and the Hospital contained other verbally agreed provisions which Mr Ismail claimed and Mr Treppass (with one exception) denied formed part of the agreement between Mr Ismail and the Hospital. The exception can be dealt with shortly because there is no significant dispute regarding it and this is that in addition to the terms of the written Agreement quoted above it was agreed that Mr Ismail should be given a reference by the Hospital in terms approved by Mr Ismail. It was common ground that Mr Ismail asked for and received such a reference. To that extent therefore he was right in asserting that not everything that was agreed between him and the Hospital was provided for in the written Agreement since it made no mention of the reference.The disputed issues were whether there were additionally agreed as part of the settlement the following terms:a) that the Hospital would undertake that there would be no racial discrimination in its future conduct of its affairs.b) that the Hospital would treat fairly treat both the members of Mr Ismail's family who continued to work at the Hospital and a witness that Mr Ismail had called in the proceedings andc) that Mr Ismail would be permitted by the Hospital to utilise the facilities of a health and sports club to which the Hospital procured access for its staff. The club itself was not part of the Hospital premises.It was Mr Ismail's evidence that these three additional terms were agreed to by Mr Treppass orally on behalf of the Hospital at the same time as the written agreement was entered into and that Mr Treppass agreed them man to man. Mr Ismail also said he had been pressing for the inclusion of such terms for a number of months while negotiations for the settlement of the Industrial Tribunal disputes were conducted in part between Mr Ismail and a Mr David Harrap, a General Manager at the Hospital and in part between Mr Ismail and Mr Treppass. Mr Ismail accepted that the Hospital had tried to hold out for a withdrawal of all allegations of racial discrimination which he, Mr Ismail, was not willing to agree to. Mr Treppass' evidence was that Mr Ismail had indeed been negotiating a compromise partly with Mr Harrap and later with him, Mr Treppass, and that there had been discussions regarding the withdrawal of all charges of racial discrimination which was what on Mr Treppass' advice the Hospital was asking for and Mr Ismail was unwilling to do and Mr Ismail was keen to have a statement that there would be no racial discrimination which the Hospital was unwilling to give because of the implication that that might involve that there had indeed been such discrimination in the past. No agreement was reached on these matters both parties sticking to their own contentions. So far as the other terms were concerned, namely continued use of the sports and social club and an agreement by the Hospital to treat Mr Ismail's family and witness fairly, Mr Treppass' evidence was that he had no recollection of these matters being discussed at a long meeting which he had with Mr Ismail on Monday 14th September when the compromise was agreed in principle leaving Mr Treppass to draft the settlement Agreement and Mr Ismail's reference nor when Mr Ismail collected the written Agreement the following day Tuesday the 15th when it was signed. On the other hand Mr Treppass did accept that when Mr Ismail called to collect the £15,000 cheque on Thursday 17th from Mr Treppass' office, bringing with him Hospital documentation pursuant to the Agreement in a carrier bag, Mr Ismail raised the question of his continued use of the sports and health club and that Mr Trepass said he would take instructions on the subject. He also accepted that on that occasion, the 17th September, Mr Ismail asked for something in writing from the Hospital that they would treat his family and witness properly. Mr Treppass' evidence was that he said there would be no question of that but that if there were complaints then they could be dealt with in the usual way either by the complaints procedure or by proceedings before an Industrial Tribunal and that Mr Ismail seemed content with that.Of the two versions of events we prefer and accept Mr Treppass' for the following reasons:-a) The contemporaneous correspondence supports Mr Treppass' version. Notably the letter dated 25 September 1992 written by Mr Treppass to the Hospital's Finance Manager reporting the settlement in which he said of Mr Ismail:
"...he did make one request when he came to collect the reference and the cheque and that was for permission to continue to use the Cromwell Hospital Sport and Social Club . . . .Obviously whether you allow Mr Ismail access to the Social club is a matter for you. He is clearly still in contact with members of your staff but my personal view is that in view of the action he has taken it would be wholly inappropriate for him to continue to be given the benefit of hospital facilities."
That is not the letter that one would expect Mr Treppass to write if he had promised that the Hospital would give continued access to the Sports and Health Club. It is however exactly the letter that one would expect if the request for continued use of the Sports Club was made on the 17th when the cheque and reference were collected which was after the written Agreement was signed on the 15th September. When the facility was refused by the Hospital by letter dated 30th September 1992 to Mr Treppass, Mr Treppass reported this to Mr Ismail in a letter of the 7th October which again is consistent with Mr Treppass' version of events but not Mr Ismail's in that Mr Treppass wrote:
"I have now received instructions from the Cromwell Hospital in relation to your request to continue to be admitted to the Social Club notwithstanding that your employment has been terminated. I regret to advise you that the Sports and Social Club is specifically for existing members of staff and in those circumstances the hospital cannot agree to your request to use the facilities."
This letter was treated by Mr Ismail as the justification for his failure to withdraw his cross-appeal in accordance with clause 2 of the written Agreement. When this Tribunal wrote to inquire about the withdrawal of the appeal which Mr Treppass had requested and the non-withdrawal of the cross-appeal notwithstanding the terms of the written Agreement, a copy of which had been sent to this Tribunal by Mr Treppass on 13th November, Mr Ismail replied by letter dated 1st December 1992:
"On 15 September 1992 I entered into a written and verbal agreement with the solicitors acting on behalf of Medical Services International Ltd. By letter dated 7 October 1992 Messrs Malkins informed me that their client was unable to agree with the verbal part of our agreement and in the circumstances no settlement has in fact been reached."
The conclusion there drawn that there was no settlement in fact reached would not follow even if, contrary to our view of the matter, the letter of Mr Treppass of the 7th October 1992 could be regarded as a statement that his client was unable to agree with the verbal part of an agreement. There is also a significant difference in the phraseology of the letter of 1 December 1992 from Mr Ismail's initial refusal to agree to withdraw the cross-appeal in his letter to this Tribunal received on 29 October 1992 when he said:
"As requested I am writing to inform you that I do not accept the agreement with Medical Services International Ltd also I do not wish to withdraw the cross-appeal."
However we bear in mind that Mr Ismail's English is less than perfect and that we should therefore make allowances in that respect and not draw inferences from linguistic differences in letters which he wrote. The fact remains that the correspondence which is contemporaneous and cannot have been written with this dispute in mind is consistent with Mr Treppass' account of events and not Mr Ismail's.b) Mr Ismail's account is intrinsically highly improbable. It is most improbable that a solicitor acting for the Hospital would enter into an oral undertaking that the Hospital would not engage in racial discrimination and would treat Mr Ismail's family and witness fairly, when even Mr Ismail accepted that there had previously been a consistent refusal to do so but rather an insistence on a withdrawal of all allegations. Mr Treppass' account on the other hand is consistent with the Hospital's previous attitude that they would not admit, even by implication, that there had been racial discrimination.c) Mr Ismail's evidence that he had throughout the negotiations insisted on the additional oral terms was proved to be wrong by the production of an offer of settlement by solicitors acting for him in April to July 1992 in terms which made no mention of those terms and more seriously still by a letter which he Mr Ismail himself wrote to Mr Harrap proposing terms of settlement which made no mention of them. Mr Ismail was unwilling to admit that the draft terms of settlement produced as the enclosure to his letter was indeed the genuine draft sent by him but that was clearly established to our satisfaction both by the fax notations on the documents and the answering comments which Mr Treppass made on the draft which was sent to him for comment.d) Mr Ismail's evidence that he was content to accept Mr Treppass' word orally regarding the additional oral terms is not easy to reconcile with the suspicions he voiced about the Hospital's trustworthiness in other matters.Mr Ismail relied in argument before us on Mr Treppass having at one stage disputed that there were negotiations between Mr Ismail and Mr Harrap. That was more directed to the fact that Mr Treppass was not actually a party to those negotiations although aware that they were being conducted and in any event has no direct bearing on anything we have to decide. It is certainly far short of persuading us that we should regard as unreliable Mr Treppass' evidence, supported as it is by contemporaneous correspondence.For all these reasons and having heard the oral evidence on each side, we find that the oral terms claimed by Mr Ismail to have been agreed to by Mr Treppass did not form part of the compromise agreement with Mr Ismail. That makes it unnecessary to decide whether if these oral terms had been agreed, there was such a breach of those terms as to discharge the clear terms of the written agreement so as to permit Mr Ismail to continue to prosecute his cross-appeal. In our view Mr Ismail received and has retained the £15,000 in return for giving up his cross-appeal and he cannot go back on that agreement now.We therefore direct that both the appeal and the cross-appeal be withdrawn.