(1) Securicor Ltd (2) Group 4 Total Security Ltd v D Curling and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE MUMMERY,LORD JUSTICE RIX |
| Judgment Date | 27 February 2001 |
| Neutral Citation | [2001] EWCA Civ 358 |
| Docket Number | B2/2000/0228 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 2001 |
[2001] EWCA Civ 358
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(His Honour Judge Winstanley)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Mummery
Lord Justice Rix
B2/2000/0228
MR TOBY HOOPER QC (Instructed by Hextall Erskine, 28 Leman Street, London, E1 8ER) appeared on behalf of Securicor.
MR B CARR (Instructed by Rowley Ashworth, 247 The Broadway, Wimbledon, London, SW19 1SE) appeared on behalf of the Claimants.
MR J TAYLOR (Instructed by Pinsent Curtis, Leeds) appeared on behalf of Group 4.
Tuesday, 27th February 2001
Two important principles of English law underlie the exclusionary rule of res judicata or estoppel by a judgment. One is that there should be finality in litigation. The other is that no-one should be sued twice on the same ground. Of the two types of that estoppel, cause of action estoppel and issue estoppel, we are concerned on this appeal with the second, issue estoppel. It is not in dispute that the requirements for such estoppel are that (1) the judgment in the earlier action which is claimed in the later action to give rise to the defence of an estoppel is that of a court of competent jurisdiction, is final and conclusive and is on the merits, (2) the parties (or privies to parties) in the earlier action are the same as those in the later action, and (3) the issue in the later action is the same as that decided in the earlier judgment. But to such issue estoppel there is a possible exception, recognised by the House of Lords in Arnold v National Westminster Bank [1991] 2 AC 93, when relevant further material, unavailable at the time of the earlier action and tending to show that the earlier decision was wrong, becomes available. Such material, it was held in Arnold, is not confined to factual material but may include a later decision constituting a change in the law.
The main issue on this appeal is whether the circumstances of this case fall within the exception.
It is an appeal from the order made by His Honour Judge Winstanley in the Wandsworth County Court on 23rd September 1999 on a preliminary issue in two actions. The Judge held that Securicor Ltd ("Securicor") was estopped from arguing in those actions certain points which had been the subject of decisions by an Employment Tribunal and by the Employment Appeal Tribunal ("the EAT") in proceedings brought by eight former employees of Securicor to which Securicor and Group 4 Total Security Ltd ("Group 4") were the respondents. I shall call those former employees "the Employees", including in that term the personal representatives of a deceased former employee. The claimants in the two actions are six of the Employees and the personal representatives of the other two. In the first action Securicor is the sole defendant. In the second action Securicor and Group 4 are the defendants. Securicor now appeals with the permission of the single Lord Justice (Sir Anthony McCowan).
I summarise the facts relevant to this appeal largely from the agreed statement of facts.
For many years prior to 31st December 1998 Securicor was engaged under contract with the Home Office to run the Immigration Detention Centres for Heathrow Airport and for Gatwick Airport. The Employees were employed by Securicor as Immigration Escorts at Gatwick Airport until 31st December 1988. A Memorandum of Agreement between Securicor and MATSA (the Managerial, Administrative, Technical and Supervisory Association), of which trade union the Employees were members, was incorporated into the contracts of employment of the Employees; this provided in Section H of Part VI (relating to redundancy) that each employee entitled to a statutory redundancy payment would receive in addition a supplementary payment equal to one and a half times the amount of the statutory payment.
The Home Office terminated Securicor's contract with effect from 31st December 1988 after a compulsory competitive tender was won by Group 4. From 1st January 1989 the Employees, save for the fourth claimant, Mr Mitchell, who obtained work elsewhere, were employed by Group 4 in the same jobs as those in which they had been employed by Securicor. Group 4 obtained confirmation from Securicor that it had subjected those Employees to positive vetting procedures in accordance with the standards of the British Security Industries Association of which both Securicor and Group 4 were members. There was no break in the provision of the services which had been provided by Securicor when Group 4 commenced work under its contract. That work was the same as that which had been done by Securicor, and was conducted in the same premises provided by the Home Office as had been provided for Securicor. Group 4 adopted Securicor's shift pattern. It provided its own vehicles and communications equipment as Securicor had done.
Between January and June 1989 most of Securicor's former employees working on the contract with the Home Office applied to Employment Tribunals, claiming statutory redundancy payments against Securicor or Group 4. The Employees who had been employed at Gatwick applied to an Employment Tribunal in Brighton. Some 50 former employees at Heathrow applied to an Employment Tribunal in London (North).
The Brighton Tribunal, after a six-day hearing, by a decision promulgated on 20th November 1989, dismissed the Employees' applications, holding that
(a)Securicor had not dismissed the Employees; but
(b)if wrong on that, there had been no transfer of an undertaking from Securicor to Group 4 under the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE"), each of the Employees was dismissed by reason of redundancy, only one (Mr Evans) may have been offered other suitable employment but he was not unreasonable in refusing it, and it would have awarded a redundancy payment to each of the Employees.
On the Employees' appeal and Securicor's cross-appeal, the EAT held, in a reserved judgment delivered by Knox J on 28th July 1992 (reported at [1992] IRLR 549), that:
(a)Securicor had dismissed the Employees by reason of redundancy;
(b)there had been no transfer of an undertaking from Securicor to Group 4; and
(c)the EAT should not interfere with the findings of fact by the Tribunal that there was no offer of suitable alternative employment, save possibly for Mr Evans and there was no basis for distinguishing his case from that of the other employees.
The Employees' appeal was therefore allowed and Securicor's cross-appeal dismissed.
Securicor applied to the EAT for permission to appeal, but that was refused and no application to this court was made for permission.
Securicor duly paid statutory redundancy payments to the Employees. Securicor did not pay the supplementary payments referred to in the memorandum of agreement with MATSA and on 26th May 1994 the Employees commenced proceedings ("the first action") against Securicor alone in the Wandsworth County Court, claiming the supplementary payments, such sums varying from a little under £1,500 to a little over £5,000. By its defence Securicor denied liability, claiming that it had offered suitable alternative employment to each of the Employees and that there had been a transfer of an undertaking within TUPE from Securicor to Group 4. In their reply the Employees claimed that Securicor was estopped by (inter alia) the EAT's decision from maintaining that the Employees' employment was not terminated by reason of redundancy or that any of the Employees had refused an offer of suitable alternative employment or that there had been a transfer of an undertaking within TUPE.
In the meantime, at a two-day hearing, an Employment Tribunal in London (North) had heard a preliminary issue in the application of the former employees of Securicor at Heathrow. This raised the question whether there had been a transfer of an undertaking from Securicor to Group 4 within TUPE. Group 4 submitted that there was no case to answer on terms that it reserved the right to call evidence if that submission failed. But in a decision promulgated on 16th August 1994 the Tribunal, without hearing evidence from Group 4, held that there had been such a transfer. Group 4 appealed on substantive and procedural grounds, but the appeals were settled on 21st May 1997 by a compromise which did not involve Securicor.
On 8th December 1994 the Employees commenced further proceedings ("the second action") in the Wandsworth County Court against Securicor and Group 4, claiming against Securicor, alternatively against Group 4 on the basis that there had been a transfer of an undertaking to it, as damages for breach of contract the supplementary payments and also the pay to which the Employees were entitled if they had received, as they should have done under section 49 Employment Protection (Consolidation) Act 1978 ("the 1978 Act"), notice of the termination of their employment contracts. Such sums varied from £500 to over £3,000. By its defence Securicor denied the claims, again relying on a transfer of an undertaking to Group 4. Group 4 in its defence denied the claims, raising the defence of issue estoppel. In their reply the Employees also raised issue estoppel against Securicor.
The first action and the second action were consolidated by order of His Honour Judge Sumner on 22nd September 1995. That judge heard an application by the Employees for a preliminary issue to be directed as to whether Securicor was estopped by...
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