Cunningham v Essex County Council and Others
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 2000 |
| Date | 26 June 2000 |
| Court | Queen's Bench Division |
Court and Reference:High Court, Queen's Bench Division ; Case No 1995 C No 601
Eady J
Appearances:J Goudie QC and W Pawlak (instructed by Bevans) for C; W Robert Griffiths QC and J Ramsden (instructed by Hempsons) for the Council
Whether the Council was liable for malicious prosecution when the police had laid charges on the basis of its complaints
C was a part-time teacher. The school advertised for a full-time post in April 1991. C applied but another candidate was selected in May 1991. In July 1991, C was told at short notice that his services were not required after the end of that academic year except as a supply teacher. There was some confusion about the reason for the termination of his employment, but he was eventually told that it was because his fixed-term contract had expired and his part-time post had been replaced with the full-time post. C brought proceedings for unfair dismissal. The Employment Tribunal, in October 1993, found that C had been fairly dismissed on grounds of redundancy.
C received 2 redundancy payments from the school in September and December 1991; the second was a result of an administrative error, and C was asked to return it but did not as he had already paid it into his bank account. In February 1992, C obtained a home tutoring post. The Head Teacher wrote a letter to her line manager to assist in the provision of a reference for C for this post. She had previously provided a positive reference for him; this letter was less positive, referred to the ongoing Tribunal proceedings and suggested that criminal proceedings had been brought against C in respect of the redundancy payments (though it was suggested that this should be verified). The letter was forwarded to the Department responsible for C in his new position. C was dismissed, and was told that this was because of the Tribunal proceedings. The decision to dismiss was reversed the same day.
In May 2002, C was arrested and charged with obtaining the second redundancy cheque dishonestly. The police had been told that C, having received the first redundancy cheque, telephoned the Council's offices and said that he had not received the payment; as a result, the second payment was sent. He was eventually acquitted on the judge's direction at the Crown Court. C brought proceedings for malicious prosecution, malicious arrest, libel, malicious falsehood, negligence and breach of contract.
The factual background
1. On 1 September 1989 Mr Peter Cunningham, the claimant, began employment with the Essex County Council working at the Westcliff High School for Girls. He taught science and technology 4 days a week. This was agreed with the then Head Teacher, Miss Howard. It was not his intention to work a full week because he had a pension from Hampshire County Council, which would in such circumstances have been adversely affected. He and his family had moved house from the Portsmouth area and took up residence near his new place of work. In about May 1990, it was agreed that he would work only 3 days a week in the next academic year, starting in the following September. This arrangement was reached with the then Head of the Science Department, Mrs Veronica Fielder. There was no suggestion at that stage that the reason for a reduction in hours was anything to do with his competence or effectiveness as a teacher. The claimant believed that it was a result of tighter budgeting following the introduction of the concept of local management of schools (or 'LMS').
2. There is some dispute as to the terms on which he was then employed, because a document (D1059-60) came into existence at some point purporting to record as a fact that he was, in his second year, taking the place of someone who had resigned and thus created a vacancy. This was not countersigned by Mr Cunningham, and he does not accept that it accurately sets out the position. As far as he was concerned, when he moved from Portsmouth he was hoping effectively to take up a permanent post while remaining as a part time member of staff. (Indeed, he and his wife did not sell their house in Portsmouth until October 1990 after he had, as they perceived it, settled into his new job.) As far as the Council was concerned, he was regarded in his second year as being a part-time teacher on a fixed term contract, working a proportion to 60% of a full school week. I have seen a document to that effect, dated 16 August 1990 and signed by the Area Education Officer (D1060A). This recorded his revised annual salary entitlement as being £9433.80. The claimant told me that he had no idea that he was on a fixed term contract. I can only think that this is because he never gave his mind to the question. There is no documentary or other support for his perception that he was employed on a different, more permanent, basis. Any assumptions he made to that effect seem to me, on the basis of the evidence, to have been unwarranted. If he was intending to move to a permanent post, one would expect the contractual framework of such an arrangement to have been fully spelt out.
3. There is no doubt that the claimant intended to keep his options open and look around at any other more attractive opportunities that might present themselves. A new Head Teacher had taken up her post in January 1991. That was Mrs Elliott, who is the second defendant in these proceedings. In April of that year she informed the claimant that the school wished to have a full time science teacher because of an increase in the work load anticipated for the next academic year. I was shown the relevant advertisement in the issue of 'Job Scene' for 26 April of that year. She encouraged him to apply. Before the advertisement actually appeared the claimant had another conversation with her, because he wished to let her know that he would have been prepared to negotiate for an increase on the hours then being worked, while still not intending to change to full time teaching. He did not at that time have any idea that the arrival of a new science teacher in the following September would in any way jeopardise his 3 day week. Had the second defendant made this clear, I am sure it would have registered with him. It would have given him a sense of urgency about making alternative arrangements. By the time of the second conversation, the advertisement had already been sent out (or so the second defendant told him), and things were allowed to take their course.
4. The claimant was interviewed on 17 May, as was the only other candidate (a Mr John Lacey). At the interview, the claimant offered to come up to 4 days a week on 'contractual time' and to make up the other half day required by being classified as a 'supply' teacher. The outcome of the interviews was that the newcomer obtained the full time post and the claimant was told the news that very day. A few days later the second defendant, at what she called a 'de-briefing', led the claimant to believe that there would still be work available to him in the forthcoming academic year. Thus, although he was disappointed not to have been successful at interview, the claimant still did not think that the appointment of a new member of staff was going to affect his own opportunities. It would appear that the second defendant allowed him to be lulled into a sense of security (which turned out to be unjustified).
5. Meanwhile, a reference had apparently been sent by the second defendant on 16 May (ie the day before his interview) to a Mr Keenan of the nearby St. Thomas More School for Boys. The claimant did not become aware of this until long afterwards, but when he learnt of it he was surprised because he had never applied for a post at that school. He had been to the school for a talk (with a Mr Phillips), but decided to take it no further - not least because he thought the post they had in mind would have been full time. At all events, the letter as sent was in the following terms:
"Mr Cunningham joined the staff of Westcliff High School for Girls in September 1989 to teach Chemistry to Advanced level for 4 days a week. In the current academic year this was reduced to 3 days a week.
Mr Cunningham has taught integrated science to years 7, 8 and 9, and combined science to years 10 and 11, specialising in Chemistry. Mr Cunningham is familiar with the national curriculum in years 7 and 8, and he is gradually adapting to the new teaching and assessment methods that are required.
Generally speaking Mr Cunningham gets on well with his pupils. He is hard-working and prepares his lessons and marks students' work very conscientiously. He is punctual and has a good record of regular attendance.
Mr Cunningham gets on very well with his colleagues. He is a courteous and pleasant person, well-liked by his colleagues. I cannot comment on Mr Cunningham's pastoral organisation and reliability as he has not been a form tutor at this school.
Mr Cunningham has indicated that owing to his pension entitlement he is not able to work full-time at Westcliff High School for Girls."
6. (It does not matter for the purposes of the present narrative, but until the trial itself the claimant had only seen a later version of this reference (D1085). This was misleading in that it was printed out on later, and therefore anachronistic, writing paper. It also contained the comment by the second defendant that she was no longer able to employ him at the school. This was unfortunate, because it led the complainant, not surprisingly, to the conclusions (a) that the letter was altogether a later "forgery", and (b) that the second defendant had already made up her mind that she could not employ him before the interview of 17 May. The second defendant explained how this had all come about, but only when she was in the witness box in March 2000. The explanation was entirely innocent, even if it revealed a somewhat chaotic system of record keeping in her...
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