MR A C GREEN v H & L RUSSELL LIMITED [2006] UKEAT 0545_05_1201

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0545_05_1201

Case No Appeal No. UKEAT/0545/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A C GREENAPPELLANT

H & L RUSSELL LIMITEDRESPONDENT

Before

His Honour Judge Reid

Date 12 January 2006

[1]APPEARANCES For the Appellant MR A C GREEN (The Appellant in Person) For the Respondent Written Submissions SUMMARY Practice and Procedure – damages for breach of contract Owing to a misunderstanding between Chairman and advocate, claim for breach of contract treated as withdrawn when the advocate only conceded one head of damages was not reasonable. Claim for breach of contract reinstated. HIS HONOUR JUDGE REID QC This is an appeal from an Order of 18 May of last year made at Sheffield by which on a Case Management Discussion a variety of matters were dealt with.

[2]The Case Management Discussion arose following an Order of 1 March last year. It is in these terms, so far as material:

"(ii) The pre-hearing review will deal with the issue of whether or not the tribunal has jurisdiction in relation to the unfair dismissal, written reasons for dismissal and race claims and, in any event, it will decide whether, (whatever maybe the position insofar as jurisdiction is concerned) those claims should be struck out or whether the claimant should be ordered to pay a deposit (of up to £500) as a condition precedent to being allowed to continue with those claims on their merits, in other words, if the tribunal concludes they have no reasonable prospects of success."

[3]The hearing on 18 May dealt with those matters. Mr Green, the Appellant, was at that stage represented by solicitors and the claims for unfair dismissal, race discrimination and failure to give written reasons for dismissal were either withdraw or struck out. But there then followed a discussion relating to the remaining claims which Mr Green had which were for breach of contract, and a number of claims were identified.

[4]It appears that at the time the Chairman didn't identify orally all of the points, no doubt thinking that by referring to "other contractual points" he was sweeping up points which were evident to those present from the form of the discussion. Regrettably, it seems to me, there had been a misunderstanding in relation to one part of the contractual claim. The misunderstanding arose in this way. Mr Green claimed damages for wrongful dismissal. A part of that claim was on the basis that he was dismissed without his employer having been through the proper disciplinary process. He said that had the employer gone through the proper disciplinary process he would have remained in employment beyond the one year mark and would therefore have become entitled to claim for unfair dismissal as well as for wrongful dismissal. As is well known, and was clearly known to his then solicitor, Mr Singh of Howells, it is not possible following the decision of the Court of Appeal in Virgin Net Limited v Harper

[2005] ICR 921

to claim in addition to other damages, damages for the loss of the right to claim for unfair dismissal. It is not possible to say, "Had the employer gone through the appropriate process I would have still been employed after a year; therefore part of the loss arising from my wrongful dismissal is the loss of a chance to claim for unfair dismissal" and to claim compensation under that head. That point was made by the Chairman to Mr Singh and I have no doubt that Mr Singh took it on board.

[5]The problem which arose was that the Chairman appears to have taken the view, and indeed it looks as if the employer's solicitors also took the view, that this meant that no other part of the wrongful dismissal claim was being pursued. Mr Singh had accepted that damages on what might be called "anti- Virgin Net Limited v Harper " basis could not be claimed. But what Mr Singh did not, as is clear from his letter which has been put before me, intend to do was to accept that there was no other damage flowing from the wrongful dismissal claim. In particular, one item that Mr Green is anxious to pursue is the loss of wages on the basis that had the employer gone through the appropriate disciplinary process rather than summarily dismissing him, (for which he has now been awarded three month's pay in lieu of notice, as I understand it), he would have remained in employment for a further period before that notice period began to run and he has, therefore, lost a number of weeks or possibly months further employment for which he says he is entitled to be recompensed.

[6]It was not Mr Singh's intention to withdraw or abandon that claim when he accepted that there was no Virgin Net v Harper claim available. Regrettably, it seems to me, there was a misunderstanding and the Chairman acted entirely properly on his understanding of the concession being made. However, I am satisfied from Mr Singh's letter that that was not in truth Mr Singh's intention or his instructions, whatever understanding the Chairman and counsel for the employer may have had at the time.

[7]In those circumstances it seems to me that whilst the Order made was within the power of the Tribunal and, was one which on the Chairman's understanding, it would properly have been within his discretion to make, in making it he was acting under a fundamental misapprehension as to what it was that was being conceded. The order that he made (on the concession in fact intended) was not one that he could properly make. Put very simply: he made an order in the belief that the wrongful dismissal claim was being entirely withdrawn; had he been aware that all was being accepted was that a Virgin Net v Harper claim could not succeed, he would, I am satisfied, never have made the order which he did.

[8]It is as a result of that misunderstanding that it seems to me that the Grounds of Appeal (as amended) are made out and that it is correct to say as counsel instructed by ELAAS have said in the draft amended Grounds of Appeal the effect of the order is that the Claimant is locked out of part of his claim made by the Originating Application, recognized by the Respondents as arguable, and identified at the Case Management Discussion as requiring further directions and adjudications. Because of the unfortunate misunderstanding the omission of the head of claim from the matters to go to trial was an error of law in that it failed to allow a legitimate claim to proceed to a hearing and thereby caused a fundamental failure of the Appellant to be allowed to have his day in court and to have his rights adjudicated upon in accordance with the order.

[9]One can well understand how something of this sort could occur. It is just, I am afraid, one of those unfortunate things arising, I think in substance from the failure of the solicitor then representing the Appellant, to make clear precisely what his position was. He and the Chairman got their wires crossed with an unfortunate result for which the Chairman cannot possibly be blamed. But the net result is that Mr Green was shut out from pursuing a claim which may very well not be worth much (if any thing) but which he is entitled to pursue.

[10]I will therefore allow the appeal and allow the breach of contract claim to be reinstated but I reiterate, as I think Mr Green readily accepts, that will not entitle him to claim any of the type of damages held by the Court of Appeal in Virgin Net v Harper to be irrecoverable.