Care First Partnership Ltd v Roffey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ALDOUS,SIR CHRISTOPHER SLADE |
| Judgment Date | 03 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1103-3 |
| Docket Number | A2/2000/0510 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 2000 |
QUEEN'S BENCH DIVISION
Before Mr Justice Newman.
Local government - members' interests - school likely to benefit from authority's resolution - councillor governors should not have voted
Membership of a public body, such a school's board of governors, was a personal or private interest within the meaning of the National Code of Local Government Conduct (DoE Circular 8/90), which should be declared, and was capable of giving rise to a clear and substantial interest preventing the councillor from voting in any matter concerning the body.
If a body was likely to benefit from voting on a resolution, it had a direct interest in the resolution, regardless of whether the resolution was directed specifically to considering the affairs of that body.
Mr Justice Newman so held in the Queen's Bench Division when allowing an application by Daniel Beaumont and 15 others for judicial review of the decision of Kirklees Metropolitan Borough Council dated July 14, 1999 to close Birkdale High School.
Mr Marc Beaumont for the applicants; Mr Clive Lewis for the local authority.
MR JUSTICE NEWMAN said that the applicants were all either students at Birkdale High School or wished to become students at the school. The respondent local authority had voted, by 36 votes to 35, to close the school.
Two of the councillors who voted in favour of closure were governors of another local school, Westborough High School.
The applicants argued that since the councillors might have regarded a vote to close Birkdale High School as consequentially benefiting Westborough High School, they should not have voted and the decision was void.
The local authority's standing orders provided that any member of the council who had a personal interest in any matter, as defined by the National Code of Local Government Conduct, should disclose that interest, but could vote unless the interest was clear and substantial in which case the member should withdraw. The two councillors had not disclosed any interest in the vote.
Article 9 of the Code, which related to non-pecuniary interests, stated: "Private and personal interests include those of your family and friends, as well as those arising through membership of, or association with, clubs, societies and other organisations such as the Freemasons, trade unions and voluntary bodies."
The applicants submitted that the councillors had a private interest in the vote by virtue of article 9. The local authority argued that membership of a public body, such as a board of governors, was not listed in article 9 and so did not amount to a personal interest.
In his Lordship's judgment, the examples in article 9 were not exhaustive, and the code did regard membership of a public body as being a private or personal interest, capable of giving rise to a clear and substantial interest. It was plain that an interest as a governor could amount to a private or personal interest.
The local authority submitted that a private or personal interest would only arise if the matter under discussion was directed to the affairs or interests of the body of which the councillor was a member.
In his Lordship's judgment, a body might have a direct pecuniary interest in a matter under consideration other than by the matter being headed as concerning that body.
If a person might obtain a financial benefit as a consequence of voting on a resolution concerning someone else, he might obtain the benefit indirectly but his interest in the resolution constituted a direct pecuniary interest for him.
Whether or not a legal person or entity had a direct pecuniary interest in a matter which by its terms was directed to another person or entity was a question of fact in each case.
If it was plain as a matter of fact and record that as a consequence of voting on a resolution touching the affairs of A, B was likely to benefit financially, B had a direct financial interest in the resolution although the resolution was not directed specifically to considering the affairs of B.
The question to be considered was whether the matter upon which the two governors voted concerned Westborough High School. In his Lordship's judgment, it did, and the councillors should not have voted.
[2000] EWCA Civ J1103-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Lord Justice Aldous
Sir Christopher Slade
A2/2000/0510
MISS L COX QC and MR P EPSTEIN (Instructed by Bupa Legal Department, Bupa House, 15–19 Bloomsbury Way, London WC1A 2BA) appeared on behalf of the Appellant
MR I SCOTT (Instructed by Messrs Bolt Burdon, London N1 0QX) appeared on behalf of the Respondent
With the leave of the Employment Appeal Tribunal, Care First Partnership Ltd ("Care") appeal against the order of the Employment Appeal Tribunal of 12th July 2000 which dismissed their appeal against the decision of the Ashford Employment Tribunal of 11th July 2000.
Care are the respondents to proceedings brought by seven applicants who were employed by them as care workers in an old people's home that was owned by Bromley County Council. The first set of proceedings were presented on 30th July 1999. All seven of the applicants made claims under sections 44 and 47B of the Employment Rights Act 1996. Care took the view that the Tribunal had no jurisdiction to consider the complaints under section 47B, having regard to the date when the Public Interest Disclosure Act 1998 came into force. They therefore requested the Tribunal to set a date for a hearing to determine that issue. The Tribunal fixed the hearing for 2nd February 2000.
On 24th January the same applicants presented a second set of proceedings with a view to overcoming the defects which had been identified by Care in the first set of proceedings. What happened at the hearing on 2nd February was recorded in the Tribunal's letter of 29th February. Since the applicants had all presented further originating applications following the termination of their employment, the Chairman expressed his view that in the light of those developments it would not be helpful to have a preliminary hearing as originally envisaged. Counsel agreed with that view.
The Chairman then went on to give directions, which included directions for Further and Better Particulars, mutual disclosure and that the parties should exchange witness statements not less than 14 days before the hearing date. The time estimated for the hearing was five days, and the date arranged for the hearing to start was 10th July.
As it happens, the applicants were not in a position to exchange their witness statement until 30th June, i.e. five working days before the date of the hearing. On the morning of the hearing, Care applied to the Tribunal for an order striking out the applications on the basis that if all the evidence in the witness statements of the applicants was accepted as factually correct, there was no reasonable prospect of the claim succeeding.
The Employment Tribunal heard submissions and decided during the luncheon adjournment that they did not have jurisdiction to make the order sought. Care told the Tribunal that they wished to appeal, and did appeal, to the Employment Appeal Tribunal. That appeal was, as I have said, dismissed on 12th July for essentially the same reasons as given by the Tribunal.
The hearing was then resumed for one day, when it was adjourned part-heard, having heard evidence from one of the applicants and the manager of the home. The hearing is set to continue in March 2001, after the hearing of this appeal.
This appeal is concerned with whether those decisions of the Tribunal and the Employment Appeal Tribunal are correct. In essence the question for decision is whether an Employment Tribunal has power to dismiss proceedings at the start of a hearing because they stand no reasonable prospect of success. As the Tribunal is a creature of statute, the answer to that depends upon the terms of the rules governing the jurisdiction of the Employment Tribunal. Those rules are contained in the Employment Tribunals (Constitution and Rules Procedure) Regulations 1993. For the purposes of this appeal, the relevant parts of those rules are as follows:
"4. Power to require further particulars and attendance of witnesses and to grant discovery"
I need not read subrules (1) to (6).
"(7) If a requirement under paragraph ( 1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether; but a tribunal shall not so strike out or direct unless it has sent notice to the party which has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so.
7. Pre-hearing review
(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of-
(a) the contents of the originating application and notice of appearance;
(b) any representations in writing; and
(c) any oral argument advanced by or on behalf of a party.
(2) If a party applies for a pre-hearing review and the tribunal determines that there shall be no review, the Secretary shall send...
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