Rowson v Plastic Developments (UK) Ltd [1996] UKEAT 940_95_2401

EAT
Rowson v Plastic Developments (UK) Ltd
[1996] UKEAT 940_95_2401 · 1996-01-24
MR JUSTICE TUCKER: This is an appeal by an employee against an Interlocutory Order made by the Chairman of the Industrial Tribunal sitting at Hull on 31 July 1995. His decision was that the proceedings before the Industrial Tribunal are stayed, until the outcome of all the High Court proceedings to which the Appellant, Mr Rowson, is a party, is known. In fact both sides agree that the terms of the Order are too wide and that they should be restricted to a reference to only one of several High Court proceedings to which the Appellant is a party, that is, Action CH 1995R No.191.What are described as extended reasons were given for that decision. They are that having heard those submissions, the Chairman was not convinced that findings of the Tribunal, necessary in Tribunal proceedings, would not necessarily determine matters which were properly within the ambit of the High Court proceedings. On the basis of caution, he decided that the application by the Respondent to stay the proceedings until the close of the High Court proceedings, should be granted.One of the grounds of this appeal is, that the decision does not disclose proper reasoning, in that it does not provide both parties with the material which will enable them to know that the Tribunal has made no error of law in reaching its findings of fact. See Alexander Machinery (Dudley) Ltd v Crabtree [1974] ICR 120 . The reasons were not as full as they might have been. It might have been better if further details had been provided of the route by which the Chairman reached his decision. Nevertheless, having said that, we think there is just sufficient to show the legal test which the Chairman applied. He clearly felt that in the interests of caution, it would be better to allow the High Court proceedings to go first, in that there was a danger that findings made by the Tribunal might embarrass the judge who later came to try the High Court proceedings. In an appropriate case this is clearly a decision which a Chairman was entitled to reach. He has, it is accepted, a wide discretion, and provided that discretion is exercised on proper grounds and is exercised judicially, it cannot easily be impugned.The Appellant submits that there were no grounds upon which the Chairman could have reached that decision, since there are in fact no issues which occur in both sets of proceedings, which can give rise to an issue estoppel. Mr Oldham has argued the Appellant's case most attractively and persuasively in urging lack of common issues. He identified the issues in the case before the Industrial Tribunal by reference to the Respondents Notice of Appearance and the issues in the High Court case by reference to the pleadings. He submits that no issues overlap and therefore there were no grounds for granting a stay. Even if there was an overlap, he submits there can be no estoppel, as the parties appear in the two cases in different capacities: before the Industrial Tribunal as employee and employer; in the High Court as parties to a consent order or to a dispute; and as a director and company. Mr Oldham cites a passage from Spencer Barr & Turner on Res Judicata 1969 Edition page 203, paragraph 232 in these terms:
"A party who though identical in name litigates in different characters in the two proceedings is in contemplation of law and in the correct sense of the civilians two separate and distinct personae. So that a decision for or against a man who appears in a representative character is not conclusive in favour of or as the case may be against the same man appearing in subsequent proceedings as an individual or in a different representative character."
That passage is couched in a somewhat ancient language but is nevertheless still the law.The fact remains that the two entities, the Appellant on the one hand and the Respondents on the other, do appear as parties in the two sets of proceedings. In our opinion it would, in the circumstances of this case, be over legalistic and artificial to describe them as appearing in different capacities, where the company is relatively small, the directors relatively few, and where the Appellant was a working director, who, if he were reinstated as a director, might well be able to reinstate himself as an employee.Mr Oldham submits that Miss Garner for the Respondents, is wrong to suggest that there are factual issues common to both proceedings. He draws our attention to passages in the pleadings relied upon by Miss Garner, but which appear to be admitted in the defence, so as to indicate that no issue exists between the parties. Nevertheless, we think it inevitable that issues relating to the Appellant's conduct qua director and qua employee, will fall to be considered by the judge trying the High Court action, and that conduct will be the same conduct which would have to be considered by an Industrial Tribunal.Miss Garner submits that what lies behind the proceedings is a directorial dispute, and that this is the main issue which lies behind both sets of proceedings. In our opinion, this dispute encapsulated in the High Court proceedings, is fundamental to the relationship between the Appellant and the Respondents; whether the Appellant be regarded as an employee or as a director. Until that dispute is resolved, there will be no end to their differences.The application to the Industrial Tribunal is only one aspect and in our view, the minor aspect of that overall dispute. The resolution of that aspect will certainly not dispose of the whole of the remaining litigation. It is inevitable that the High Court proceedings will be fought out, whatever the outcome of any Industrial Tribunal proceedings. Whereas we believe that the reverse may not necessarily be the case. We can conceive a situation wherein after litigation of the issues giving rise to the High Court proceedings, the dispute in the Industrial Tribunal may fall away. It is obviously undesirable that both proceedings should go ahead at the same time. It is equally obvious that for reasons given by Mr Justice Wood in the case of First Castle Electronics Ltd v West [1989] ICR 72 page 78 D, there are many factors which make it desirable that the High Court proceedings should be decided first. Delay has already occurred in bringing the Industrial complaint to a hearing. It is now six months since the Chairman's decision. In our opinion it is likely to be as long again before any hearing date could be arranged. Meanwhile, we are told that it is hopeful that the Chancery proceedings may be heard in the middle of this year. In our opinion there is little or nothing to be gained from reversing the Chairman's decision, and no obvious prejudice to the Appellant if we uphold it.In our opinion the decision was one at which the Chairman was entitled to reach in his discretion. This appeal is accordingly dismissed.