Cowling v Matbro Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE PHILLIMORE |
| Judgment Date | 05 February 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0205-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 1969 |
[1969] EWCA Civ J0205-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of plaintiff from Order of His Honour Judge McDonnell, Reigate County Court, Dated November 15th, 1968.
The Master of The Rolls (Lord Denning)
Lord Justice Edmund Davies and
Lord Justice Phillimore.
Mr. A. R. M. DAVIES (instructed by Messrs. Gowen & Stevens, Croydon) appeared on behalf of the Plaintiff Appellant.
Mrs. BARBARA MILLS (instructed by Messrs. Peerless de Rougement & Co., East Grinstead) appeared on behalf of the Respondent Defendants.
We need not trouble you any further, Mr. Davies. Matbro Limited are manufacturers of forklifts at Horley in Surrey. Mr. Cowling is their works manager. He started in their employment in 1964. On 17th November, 1967, Mr. Matthews, the managing director of Matbro Limited dismissed Mr. Cowling on the spot at a moment's notice. The reason was because it was said that he had received £30 on behalf of the company and had not handed it over. In short, he had embezzled it. The employers deducted it from the sums owing to him and dismissed him. Mr. Cowling was aggrieved by the allegation. His solicitors wrote a letter within a week to Mr. Metthews claiming the £30 and also intimating that he would claim damages for wrongful dismissal. Mr. Matthews did not reply. Mr. Cowling issued a plaint for £91 10s. 2d. Mr. Matthews himself put in a defence in his own hand: "The Plaintiff was discharged instantly because of his inability to account for company money which was entrusted to him by a customer". Later on the defendants instructed solicitors and counsel. On 31st May, 1968, the defendants put in a defence in which they alleged that they had terminated his employment for misconduct. They gave particulars saying that in early October 1967 he misappropriated a sum of £30 which was entrusted to him for and on behalf of the defendants. That was the only charge of misconduct against him. The other defence was that he had not been dismissed but had resigned.
The case went to trial on that pleading. The first day was 1st July 1968, at Reigate before Judge McDonnell. By the end of that day it was quite clear that the Judge was running against the defendants. Mr. Matthews made a very bad impression on the Judge. His suggestion that Mr. Cowling had not been dismissed was quite untrue. It was contraverted by the documents, so that things looked pretty bad for the company. The second day was at Epson a week later. During the week'sadjournment some of the employees of the company went to the Company Secretary, Mrs. Thompson, and told her of all the other wrong things that Mr. Cowling had done. They said that he had got the company's servants to do work for him in the company's time: that they had been making things for him for his own personal use; and also that they had been taking to Mr. Cowling's house things which belonged to the company. Mrs. Thompson told one of these servants to go to the police, and she may, or may not, have said something to the solicitors. But however that may be, on thing is clear: one the second day - 9th July - nothing was said to the Judge about these new allegations. No application was made for an adjournment: the case was tried simply on the issue of misconduct in regard to the £30. The Judge found that the charge was not established. He found for the plaintiff, Mr. Cowling, and gave judgment for him for £91 10s. 0d.
After the case was over, the defendants by their solicitors made further investigations into these allegations by the work-people. They took statements from them and applied thereupon to the County Court Judge for a new trial. The Judge required the new allegations to be set out in writing. The defendants accordingly amended their defence, striking out the charge in respect of the £30, but adding seventeen new charges of misconduct of one kind and another. The Judge granted leave to make those amendments and ordered a new trial. Mr. Cowling appeals to this Court.
It is settled law, of course, that in seeking to justify the dismissal of a servant, an employer is entitled to rely, not only on misconduct know to him at the time of dismissal, but also on any misconduct which afterwards comes to his notice, provided that it is properly pleaded and proved at the trial. This case raises, however, 3 new point. Here the trial has been held. The employer has failed to proved the misconduct which hepleaded. Judgment has been given against him. Now the employer seeks to bring up other misconduct which he did not plead before. He says it has only come to light since the trial. I have no doubt that, if an employer after the trial, discovers that the servants was guilty of other misconduct - other than that of which he has been acquitted - this Court may, in its discretion, grant a new trial and allow the employer to plead and prove this freshly discovered misconduct, rather than let the servant retain a judgment contrary to the justice of the case. That follows, I think, from the decision in Ellis v. Scott, ( 1965 1 W.L.R. 276). And if this Court...
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South Western Atlantic Investment Trust Company Ltd v Millette
...and though the style and mode of expression have differed, they all have spoken with one voice. 36 In the English Jurisdiction 37 In Cowling v. Matbro Ltd. 1969 2 All ER 664 at p.666, Edmund, Davies LJ said: “As the Court of Appeal said in Re Neu York Exchange, Ltd., (1988) 39 Ch.D 415 at p......
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Robert Gordon Jewell (Plaintiff Appellant) v Llandovery Drainage Company Ltd (Defendants Respondents)
...a county court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds." In Cowling v. Matbro Ltd. (1969) 1 W.L.R., 598 at page 602 I endeavoured to indicate the reasonswhy the Court should always be very cautious before granting an ap......
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Mohammed Yusuf Chaudhary v Mohammed Ali Hadi
...in the County Court? Mr Welsh argued that there was no authority on that issue, but there is. It is the decision of this court in Cowling v. Matbro Ltd [1969] 1 W.L.R. 598. That was a case in which Mr Cowling was employed by Matbro and he claimed that he had been wrongfully dismissed. The o......
- South Western Atlantic Investment Trust Company Ltd v Millette