Kramer v South Bedfordshire Community Healthcare Trust [1997] UKEAT 828_96_1802

EAT
Kramer v South Bedfordshire Community Healthcare Trust
[1997] UKEAT 828_96_1802 · 1997-02-18
MR JUSTICE KEENE : This is an employee's appeal from a decision of an Industrial Tribunal Chairman sitting alone at Bedford. By that decision, promulgated on 19th June 1996, the tribunal held that the respondents had not made any deduction from the appellant's wages contrary to the provisions of s.1 of the Wages Act 1986 and that the respondents had not been in breach of the terms of her contract of employment with them in relation to payment of her salary and other emoluments.The appellant was employed as a consultant in child and adolescent psychiatry by the respondents and their predecessor authority from January 1987. The appellant, Dr Kramer, claimed that the respondents had failed to pay her salary between 25th April 1995 and 14th August 1995, and that this was an unlawful deduction under the Wages Act 1986 .The respondents, on the other hand, claimed that her contract of employment had been terminated by mutual agreement on and with effect from 25th April 1995, and that although they subsequently reinstated her with effect from 14th August 1995, they were not responsible for payment of her salary between those two dates.We turn to deal with the facts in this case in a little more detail.In the course of 1994, certain complaints were made about the appellant. As a result on 25th November 1994 she was suspended from her duties on full pay while investigations were carried out. A disciplinary hearing was arranged for 23rd February 1995, but that was postponed at the request of the British Medical Association ["BMA"], who by that date were acting for the appellant. A further hearing was also adjourned while certain information was supplied by the respondents, and on 14th March 1995 the respondents wrote to the BMA setting the 6th April 1995 as the date for the hearing to take place. Open correspondence was thereafter being exchanged between the parties dealing with certain alleged failures by the respondents to supply documents and other information.However, by letter dated 27th March 1995 the solicitors acting for the respondents made a without prejudice offer to settle the dispute. In essence, they offered the appellant early retirement on the ground of redundancy. She would receive her NHS pension which would be made up to reflect the maximum service she could have accrued had she continued in employment. The letter made it clear that the respondents would require a compromise agreement within what was then s.140(2)(fb) of the Employment Protection (Consolidation) Act 1978 , now s.203(2)(f) of the Employment Rights Act 1996 . Thus such an agreement would provide that the appellant would not institute proceedings before an Industrial Tribunal in respect of the matters which were the subject of the disciplinary enquiry. At the request of the BMA, the respondents adjourned the disciplinary hearing set for 6th April 1995 so that the appellant could have more time to consider that offer. However, they re-fixed the hearing for 26th April 1995, were there to be no concluded agreement between the parties.On 20th April 1995 the BMA, still acting on behalf of the appellant, wrote to say that she was willing to accept the offer but on certain conditions. There were nine such conditions. It is only necessary to refer to four of these.

(i) was:

"That the allegations and the disciplinary proceedings be withdrawn."

Condition (ii) was:
"That an agreed written statement be circulated to local general practitioners, hospital consultants, and other referrers by the Chief Executive of the Trust dealing with her departure."
Condition (iii) said:
"An agreed reference including a statement to the effect that our member has undertaken her duties with a high degree of professional conduct and competence; she is respected by her colleagues; and that she took early retirement in 1995 on the grounds of redundancy."
Finally (v) stated:
"In view of the fact that our member will suffer a loss of pensionable service and income by accepting a settlement at this stage we consider that the Trust should also compensate her for this loss by awarding an ex-gratia payment of equivalent to two years salary."
The letter concluded by stating:
"As indicated above, our member is willing to sign a compromise agreement in accordance with Section 140(2) of the Employment Protection (Consolidation) Act 1978 in full and final settlement of her claim, but excluding any claim for personal injury, and accrued pension rights."
In the meantime, while this correspondence was being exchanged, arrangements for the disciplinary hearing were still proceeding. But on 21st April 1995 the respondents' solicitors replied to the BMA letter. It is necessary to quote somewhat extensively from this letter of 21st April:
"If this matter is settled prior to the disciplinary hearing on 26th April then there will be no need for the disciplinary hearing to proceed, but it is not possible for the allegations to be withdrawn under any circumstances, and our clients are not prepared to provide your member with any written intimation that the allegations have been withdrawn. That deals with your condition (i).
Our clients are prepared to consider the terms of a statement to be circulated to local general practitioners and others suggested in your condition (ii) but the statement should reflect what we say in this letter in relation to your conditions (i) and (iii).Our clients are not prepared to provide a reference which goes beyond stating that your member took early retirement in 1995 on the ground of redundancy."There is then a passage dealing with condition (iv) to which we need not refer. The letter then continues:
"As to condition (v) your member's redundancy payment will take account of the loss of pensionable service and she will be compensated in that respect, her pensionable service being made up to the maximum ten years. In the light of this our clients are only prepared to pay Dr Kramer's contractual three months pay in lieu of notice."
The final paragraph of the letter read as follows:
"We hope that your member will still be prepared to proceed to an agreement incorporating those conditions set out in your letter of 20th April to which our clients agree as indicated in this letter. Your member will have until the morning of 25th April to decide, otherwise our clients' offer is withdrawn and the disciplinary hearing will take place whether or not your client decides to attend it. This notification should be in writing."
On 25th April 1995, the day before the disciplinary hearing was due to take place and the final day, or indeed the final morning, for the acceptance of the respondents' offer, newly instructed solicitors acting on behalf of the appellant telephoned the respondents' solicitors to seek confirmation that their offer was still available up to 1 p.m. that day. On being told that it was, the appellant's solicitors sent a fax to the respondents' solicitors referring to the telephone conversation and stating that:
"Dr Kramer wishes to accept your client's offer of redundancy on the terms set out in the BMA's letter of 20 April and your letter dated 21 April 1995. Our client is willing to sign a compromise agreement in accordance with Section 140 (2) of the Employment Protection (Consolidation) Act 1978 in full and final settlement of her claim, but excluding any claim for personal injury, and accrued pension rights."
Forthwith on the same day, the respondents, having been informed of this latest faxed letter, delivered to the appellant's home a letter confirming that with effect from that day, 25th April 1995, her contract had been terminated on the ground of redundancy; setting out the payments which would be due to her in accordance with the letter from their solicitors of 21st April to the BMA, and giving attention to the other matters specified in that letter. Again, on that same day, the respondents' solicitor sent by fax to the appellant's solicitors drafts (in terms which complied with the proposal set out in their letter of 21st April to the BMA) of a reference which the respondents were willing to give the appellant, and a letter to be sent at the appellant's request to professional colleagues in the locality in which she worked.The appellant's solicitors faxed back a letter the same day saying that they needed instructions from their client on the terms of the proposed reference and letter. On 27th April 1995, they faxed a further letter to the respondents' solicitors stating, amongst other things:
"Our client anticipated her employment would not be terminated until the terms of the compromise agreement were finalised as implied in the correspondence."
and also:
"While we do not expect there will be great delay in finalising the compromise agreement our client is clearly prejudiced by being unemployed in the interim. Therefore our client requests she be reinstated until the agreement is finalised."
On 18th May 1995 the respondents' solicitors sent a draft compromise agreement under s.140 of the 1978 Act, indicating that the agreed payments would not be made until it had been signed. The letter also noted that the appellant had not yet sent back the form sent to her for making her pensions claim.Nothing further then happened for about four weeks.On 15th June 1995 the respondents themselves then wrote to Dr Kramer asking her to sign the compromise agreement and the pension form so that her payments could be finalised.Eventually on 30th June 1995 the appellant's solicitors wrote to the respondents' solicitors asserting for the first time that the respondents' letter of 25th April 1995 terminating her employment on the ground of redundancy amounted to wrongful repudiation of her contract of employment which she did not accept. It was said, again for the first time, that she remained ready and willing to perform her obligations under that contract. They went on to assert that the respondents had failed to comply with proper contractual procedures in dealing with the appellant's suspension and the subsequent disciplinary proceeding, and then indicated that the appellant was now exercising her right under the terms of that contract to appeal to the Secretary of State for Health against unfair termination of her contract. Finally they drew attention to a particular paragraph in the appellant's terms and conditions of service providing that until such an appeal had been determined she was entitled to continued payment of salary and sought confirmation that the necessary arrangements would be put in place.Further correspondence followed in which the respondents' solicitors claimed, and the appellant's solicitors denied, that there had been a binding agreement under which her contract of employment was to be terminated.On 11th August 1995 the respondents' solicitors wrote indicating that in view of the appellant's attempts to negotiate fresh terms of settlement, they no longer considered themselves bound by the settlement agreement which they had claimed to be in place and that:
"Your client will be re-instated with effect from Monday 14th August 1995 and immediately suspended pending the outcome of disciplinary proceedings."
The appellant's solicitors replied on 15th August stating that their client accepted reinstatement:

"... on the basis that her contract has been continuous."

and seeking confirmation that her salary for the period from 25th April would be paid forthwith. The respondents' solicitors answer on 21st August 1995 was that their client would not reinstate any date earlier than 14th August and would not pay the appellant's salary for the period from 21st April to 13th August. Further correspondence followed in which the respective arguments of the parties were canvassed without there being any resolution of the matter.It is important to note that no reliance is placed by the appellant on there being any implied term in the August agreement to reinstate her that her salary would be paid to her for the period in dispute, namely 25th April 1995 to 14th August 1995. The Industrial Tribunal seems to have understood that this was one of the arguments being advanced before it on behalf of the then applicant; but whether it was or not, it is certainly now expressly disclaimed by the appellant in the skeleton argument lodged in this appeal. This undoubtedly simplifies matters.The Industrial Tribunal concluded that Dr Kramer's contract of employment had been terminated by mutual agreement with effect from 25th April 1995, and that her right to be paid salary ceased at the same time. The tribunal arrived at this conclusion by examining in some detail the exchange of correspondence which led it to say this:
"6. ... There was in the view of this Tribunal nothing left to be agreed; certainly it remained to settle the precise terms of the documentation required to implement the agreement but the necessary terms of a compromise agreement under Section 140 of the 1978 Act are clearly set out in subsection (3) of that section and if the Applicant had not subsequently sought to withdraw from the agreement she had made, there could have been no problem about formally settling those terms. The precise text of the reference and of the letter to professional colleagues to be provided by the Respondents had not been settled but the Respondents' solicitors letter of 21 April was clear in sufficiently precise terms to indicate what would be said and what would not be said in those documents."
The Industrial Tribunal's conclusions there have been attacked by the appellant on four grounds. They are as follows:
"(a) The IT wrongly found that there was a concluded and binding contract under which Dr Kramer's contract of employment was terminated by agreement on 25.4.95; (b) The IT erred in failing to find that the purported termination of Dr Kramer's contract amounted to a breach of contract; (c) That the Tribunal erred in failing to find that following the said wrongful repudiation, Dr Kramer's affirmation of the contract was such that the contract remained extant and that the Respondent's failure to pay Dr Kramer during the relevant period amounted to an unlawful deduction under Section 1 of the Wages Act 1986; (d) Alternatively, (if the contract did not remain extant) the IT erred in failing to find that Dr Kramer was entitled to compensation arising from the Respondent's breach namely, the termination of the contract on 25.4.95 without having complied with the procedures provided for by the contract and without three months notice."
However, a moment's perusal of those grounds indicates that the vital one amongst them is the first ground of appeal. Both parties agree that the appellant cannot succeed in this appeal unless she succeeds on ground (a). The other grounds all require there to have been a breach of contract by the respondents in terminating the contract of employment, and if the fact is that that contract of employment was properly and lawfully terminated in accordance with a binding settlement agreement between the parties, then there was no such breach and grounds (b), (c) and (d) fall away. Those other grounds are essentially ways of establishing how she is entitled to payment if there was no concluded agreement terminating her employment. But if there was a concluded agreement as at 25th April 1995 this appeal must fail.We come back therefore to the first ground of appeal which is patently at the heart of this case.The appellant's argument here is that at the material time there were outstanding matters still to be agreed between the parties. Those matters were the terms of a reference to be given by the respondents; the terms of a statement to be sent to local general practitioners and other referrers; and the entering into of an agreement under s. 140 of the 1978 Act to prevent Dr Kramer complaining of unfair dismissal to an Industrial Tribunal. Consequently, it is contended that the alleged agreement said to be concluded on 25th April 1995 was not sufficiently complete or certain, and therefore, as a matter of law, was not a binding and concluded agreement.On the first of those matters said to be still outstanding, Miss Chudleigh has submitted that one can see that there was still disagreement over the reference to be given because the version enclosed with the letter of termination by the respondents on 25th April 1995 differed from that subsequently put forward by Dr Kramer's solicitors on 30th June 1995, some two months or more later. The respondents' version, after some introductory paragraphs, simply said:
"Consequent upon changing population needs, the Child and Family Service had been reviewed and, as an outcome, Dr Kramer decided to take early retirement on the grounds of redundancy."
At first blush that might appear to be in broad agreement with what the parties seemed to have discussed and potentially agreed in the correspondence. The appellant's solicitors version sent on 30th June was in very different terms. It stated:
"Dr Kramer was responsible for the care of patients and for the proper functioning of her department. She was conscientious in undertaking her duties and showed great commitment to patients and referrers. However, she was made redundant in 1994.

Dr Kramer's sickness absence record has been good."

A similar point is made on behalf of the appellant in relation to the statement to be sent to general practitioners and other referrers.The main uncertainty however, alleged by the appellant, still to exist, concerns the need for there to be a written compromise agreement under s.140 of the 1978 Act. Miss Chudleigh points to the fact that no such agreement was ever executed, and submits that the terms of such a s.140 agreement had not been finalised. In support of that argument she refers to the terms of a draft agreement sent by the respondents' solicitors to the appellant's solicitors on 18th May 1995. Most of that draft agreement is in predictable form, and no issue arises as to the terms of it save in one respect. That respect is in relation to clause 4 which was a confidentiality clause. It stated:
"4 This agreement is to be confidential between the parties and each of the parties hereto agree not to disclose the contents or existence of this agreement to anyone other than the parties professional advisers."
Miss Chudleigh rightly says that there had been no mention of such a confidentiality clause in the exchange of correspondence which ended with the faxed acceptance letter of 25th April. She submits that that was a new term, and that it shows that there had not been a complete agreement by that date. It indicates, in her submission, that the respondents did not regard the terms arrived at by 25th April 1995 as a final agreement. She also refers to the fact that sometime later on 30th August 1995, the respondents' solicitors wrote a letter in the course of which they said that their clients:

"... have now reluctantly to accept that no agreement was reached ..."

It is contended that this is evidence as to the respondents' intention as at April 1995. No argument based on any kind of estoppel because of that letter of 30th August 1995 is advanced.Mr Makey on behalf of the respondents contends, in brief, that by the time of the letter of 21st April 1995 from his instructing solicitors, there was a clear counter-proposal capable of acceptance, and if accepted, of forming a concluded contract. He contends that that counter-proposal was indeed accepted by the appellant's solicitors by their fax of 25th April, and that in consequence there was a concluded agreement. As to the need for a compromise agreement under s.140 to be signed, he submits that the a signing of such an agreement was a term of the actual agreement achieved by correspondence. It was one of the terms, he says, of that agreement that a formal compromise agreement under s.140 should be entered into.In respect of the confidentiality clause which was later put forward as part of a draft compromise agreement by the respondent's solicitors under s.140, Mr Makey submits that one has to see what was actually agreed as at 25th April 1995, and that, in fact, no confidentiality clause had been agreed as at that date, but that there was nothing wrong in the Trust putting it forward subsequently for Dr Kramer's consideration. It might be an additional term which would appeal to her and which might work indeed for her protection. Consequently he says the suggestion of such a clause in the s.140 agreement does not cast any doubt on the existence of a concluded and binding agreement as at 25th April 1995.The law applicable to this topic is not really in dispute between the parties. An agreement may fail to give rise to a binding contract because it is incomplete or insufficiently certain: see, for example, Scammell v Ouston [1941] AC 251 . But there may be a binding contract even though certain detailed aspects remain open. We have been referred to the decision of the Court of Appeal in the well-known case of Foley v Classique Coaches Ltd [1934] 2KB 1 , and the equally well-known decision of the House of Lords in May & Butcher Ltd v Rex [1934] 2KB 17 . In that latter case it was said by Lord Buckmaster at page 20 that:
"In my opinion there never was a concluded contract between the parties. it has long been a well recognized principle of contract law that an agreement between two parties to enter into an agreement in which some critical part of the contract matter is left undetermined is no contract at all. It is of course perfectly possible for two people to contract that they will sign a document which contains all the relevant terms, but it is not open to them to agree that they will in the future agree upon a matter which is vital to the arrangement between them and has not yet been determined."
In the speech of Viscount Dunedin in the same case at page 21 it was said that:
"To be a good contract there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties. ... As a matter of the general law of contract all the essentials have to be settled. What are the essential may vary according to the particular contract under consideration."
One can find similar statements in the decision of the House of Lords in the case of Nielson v Stewart [1991] SLT 523 .The phraseology in these passages differs, but it is accepted by both parties that it is the essentials of a contract which have to be agreed in order for there to be a legally binding contract. There may be other inessential matters which have not been agreed, but if that is the case, it will not stand in the way of there being a binding contract.In relation to the need for a written contract, reference has also been made in argument to the decision in Von Hatzfeldt-Wildenburg v Alexander [1912] 1Ch.R 284 , and in particular a passage from the judgment of the court there which appears at page 288:
"It appears fro be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored."
Thus, the fact that a formal written agreement is still to be executed may or may not indicate that there is no binding contract until then. It is all a question of construction.Finally, on the law, the test of whether the parties have reached agreement in all essential terms is an objective one. It is to be based on whether or not the parties have appeared to reach agreement, not upon what one party subsequently says was or was not their intention at the time.We turn therefore to the present case. It seems to us to be fruitful to examine first what had been agreed between the parties as a result of the exchange of correspondence before turning to look at what is said to have remained unagreed between them.The exchange of correspondence seems to us to have established the following points of agreement. First, that the appellant would take early retirement on the ground of redundancy. Secondly, that she would then receive her NHS pension including both a lump-sum and an annual payment on the footing that she had notionally remained in employment. Thirdly, that she would receive three months pay in lieu of notice. Fourthly, that she would receive payment in lieu of her pro-rata leave entitlement for the year 1995-96. Fifthly, that she would receive outstanding travel claims for 1994-95. Sixthly, that the respondents would pay reasonable legal costs for advice on the terms of the formal compromise agreement under s.140. Seventh and subject to more detailed consideration of the submissions made today, that the respondents would provide a reference to the effect that the appellant took early retirement in 1995 on the ground of redundancy. Eighth, and again subject to dealing in more detail with today's arguments, that the respondents would circulate a statement to local general practitioners, hospital consultants and other referrers, reflecting the terms of the reference just referred to and excluding any statement that the allegations against her had been withdrawn. Ninth, that the disciplinary hearing on 26th April 1995 would not take place. Tenth, that there would be a formal s.140 agreement whereby the appellant would agree to refrain from instituting proceedings in an Industrial Tribunal.The matters alleged by the appellant still to be outstanding and not agreed, despite the exchange of correspondence culminating in the faxed acceptance by the appellant's solicitors on 25th April, are as we have indicated three in number. We will deal with them in the order in which they have been advanced in argument.The first of those matters said to have been outstanding is the terms of the reference to be given by the respondents to Dr Kramer. The respondents' solicitors had stated in their letter of 21st April what reference their clients were prepared to provide, namely one which did not go beyond stating that the appellant had taken early retirement in 1995 on the ground of redundancy. It is important to observe that in stating that to be their clients' position, they were expressly rejecting condition (iii) in the BMA letter of 20th April 1995 which had sought a positively favourable reference for Dr Kramer. The appellant's solicitors then accepted the respondents' basis for a reference as set out in the letter of 21st April, that is to say omitting any favourable comment on Dr Kramer's performance. The mere fact that on 30th June 1995, when the appellant was seeking to assert that there had been no concluded agreement, her solicitors put forward a draft reference in very complimentary terms cannot alter what had been agreed. Agreement had already been reached on a neutrally worded reference. The respondents' solicitors had rejected any complimentary reference and that rejection had been accepted by the appellant's solicitors. The precise phraseology of that reference for Dr Kramer may not have been agreed between the parties at that stage, but the substance of it had been. We can see nothing in this argument.The next matter said to have been remained outstanding consists of the terms of a statement to be sent to local general practitioners and other referrers. As to this the respondents' solicitors in their letter of 21st April had stated:
"Our clients are prepared to consider the terms of a statement to be circulated to local general practitioners and others suggested in your condition (ii) but the statement should reflect what we say in this letter in relation to your conditions (i) and (iii)."
The reference there to what had been said about conditions (i) and (iii) was, in essence, that there would be no withdrawal of the allegations against Dr Kramer, and that the respondents would not say more than that she had taken early retirement in 1995 on the ground of redundancy. That therefore was the clear basis being put forward for a statement by the respondents' solicitors as at 21st April. That basis for a statement to be circulated was accepted by the appellant's solicitors in their faxed letter sent on 25th April 1995. What is uncertain about that beyond the precise phraseology? It was clear that the respondents were not prepared to include anything complimentary about Dr Kramer's performance of her duties, and the appellant's solicitors accepted that position. We cannot say this gives to any uncertainty as to any essential term of the agreement.The third and final matter is the entering into an agreement under s.140 to prevent Dr Kramer from complaining of unfair dismissal to an Industrial Tribunal. It is clear that no such written agreement as required under s.140 was or has ever been executed. But it had been agreed between the parties that such a formal s.140(2) agreement should be entered into. By that was clearly intended an agreement which met the very detailed requirements of s.140(3). (Those requirements are there in the subsection, and we do not propose to set them out at length in the course of this judgment.) The respondents' letter of 27th March 1995 had identified what the agreement essentially was to provide. If one then looks at the following correspondence there is, to all intents and purposes, no dispute as to what should go in the s.140 agreement above and beyond the matters which were subsequently agreed in the correspondence. As at 25th April 1995 there was no material dispute between the parties as to the essential terms of that formal s.140 agreement. Subsequently, it is true that the respondents put forward a draft which included a confidentiality clause, a clause not previously agreed. It seems to us that as a matter of law they could not insist on that. But making such a suggestion does not indicate that the terms had not previously been agreed for that s.140 agreement. The reality was that the respondents wanted to ensure that Dr Kramer could not proceed for unfair dismissal or a claim for wages or any similar claim before an Industrial Tribunal.We find ourselves in complete agreement with the Industrial Tribunal's comment on this aspect of the matter which we have quoted earlier in this judgment, that is to say that the necessary terms of a compromise agreement under s.140 of the Act are clearly set out in subsection (3) of that section, and that given the matters which had been agreed between the parties, there would have been no problem over the formal settlement of those terms. As a matter of construction we do not find this to be a case where agreement between the parties had not finally been reached until such time as a s.140 agreement was executed. Rather, this was a case where it was a term of the agreement, an agreement produced by exchange of correspondence between the parties, that there should be such a formal s.140 agreement executed so as to give the respondents the protection which they desired; and the essential terms of that latter s.140 agreement were not in doubt. Consequently the absence of such a formal agreement does not, in our judgment, mean that there was no binding contract between the parties.Looking at the matter overall, we are in no doubt that all the essential terms of the agreement setting the dispute were agreed by the exchange of correspondence which culminated in the faxed acceptance letter of 25th April 1995. Some minor details might remain to be dealt with, such as the precise wording of the reference and of the letter to general practitioners and other referrers, but all the material terms had been established. Moreover, it seems that the parties themselves proceeded on that basis until 30th June 1995. The disciplinary proceedings which had been arranged for 26th April 1995 did not take place. The appellant did not present herself for work, nor indicated that she was prepared to work or expected to be paid in the usual monthly way until such time. What seems to have happened is that at some stage in late June the appellant came to regret that she had agreed to the terms set out in the April correspondence. That of course is neither here nor there. Nor is the letter sent by the respondents' solicitors on 30th August 1995. What ever was said in that letter cannot change the position as it was objectively on 25th April 1995, and we do not accept that that letter of 30th August gave any true indication of the intention of the parties as at the earlier date.We conclude therefore that there was a binding contract as at 25th April 1995 between these parties. In our judgment, the Industrial Tribunal was right in law in the interpretation which it placed upon the correspondence and on the facts which it found. It follows that no wages or other sum of money are owed by the respondents to the appellant in this matter. This appeal must be dismissed.