Dr. Harish Chandra v Dr. Vidhu Mayor
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Purle |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] EWHC 2636 (Ch) |
| Court | Chancery Division |
| Date | 19 July 2016 |
| Docket Number | Case Nos: C30BM205 & C30BM206 |
[2016] EWHC 2636 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre,
33 Bull Street, Birmingham B4 6DS.
His Honour Judge Purle, Q.C.
(Sitting as a High Court Judge)
Case Nos: C30BM205 & C30BM206
Mr. M. Brown of counsel, instructed by DWF LLP, appeared for Dr. Mayor, the claimant in C30BM206 and Defendant in C30BM205, sued on behalf of the members of the executive committee of the unincorporated association formerly known as Arya Samaj (Vedic Mission) West Midlands ("the Mission") as at 19 th August 2012.
Mr. J. Quirke of counsel, instructed by Murria Solicitors, appeared for the defendants in C30BM206, being the other members of the executive committee of the Mission as at 19 th August 2012.
Mr. C. Royle of counsel, instructed by SM Commercial, appeared for Dr. Chandra, the claimant in C30BM205
Mr. V. Mandalia of counsel, instructed by mfg Solicitors LLP, appeared for the charitable incorporated association known as Arya Samaj (Vedic Mission) West Midlands.
In claim number 2YN67093, as it formerly was (now C30BM205), I gave judgment on 4 July 2014 for £59,175.40 together with interest of £3,466.72, in favour of Harish Chandra ("Dr. Chandra") against the Defendant ("Dr. Mayor"), together with an order for costs against Dr. Mayor, including interim costs of £20,000.
Dr. Mayor was expressed to be sued in a representative capacity on behalf of the members of the executive committee of an unincorporated association and charity known as Arya Samaj (Vedic Mission) West Midlands ("the Mission") as at 19 th August 2012. Dr. Mayor sued for wrongful dismissal and for sums due to him under the minimum wage legislation. 19 th August 2012 was the date when Dr. Chandra was removed from employment by the then executive committee of the Mission. He was not originally employed by that executive committee, but by a previous executive committee. It is nevertheless evident both from the terms of The Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") and the decision of Morison J. in Affleck v. Newcastle Mind [1999] ICR 852 that the contractual liabilities of the Mission in relation to Dr. Chandra's employment were transferred upon a change of committee and crystallised upon the termination of his employment, so that judgment was properly sought against Dr. Mayor representing the members of the executive committee as at 19 th August 2012.
The trial before me proceeded on that basis. Dr. Mayor now seeks a contribution from the other executive committee members towards the amounts including costs he has been ordered to pay, and Dr. Chandra seeks permission to enforce the costs order in his favour against those other executive committee members. Mr. Quirke, who has appeared on behalf of those other members of the executive committee, not directly represented in their own right at the earlier trial before me, initially resisted the conclusion that the executive committee members at the time of Dr. Chandra's dismissal were liable. Following Mr. Brown's submissions for Dr. Mayor, which included detailed analysis of the TUPE regulations and underlying legislation, that resistance rightly fell away. In my judgment, it is plain that the basis upon which the earlier trial proceeded was correct and that the order was properly obtained against Dr. Mayor in a representative capacity.
The order as drawn by the court, I should mention, did not in terms refer to Dr. Mayor's representative capacity. I was puzzled by that and enquired of the court staff why that was so. The draft order, as lodged by the parties, expressly recited the representative capacity in its heading. I was told that the Case Man electronic system used by the court does not allow enough characters in the heading for such a description to be incorporated, a proposition which I doubted, but which explains why the order coming out of the Case Man system was different from the draft order as lodged by the parties. Moreover, and more significantly, the originating process expressly sued Dr. Mayor in a representative capacity, and I have no doubt that these proceedings have been representative proceedings throughout.
CPR 19.6 (1) provides:
"Where more than one person has the same interest in a claim –
(a) the claim may be begun; or
(b) the court may order that the claim be continued,
by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest."
In this case the claim was begun against Dr. Mayor as a person having the same interest as every other member of the executive committee. They were all contractually liable to Dr. Chandra in respect of his dismissal and, as the trial established, in respect of the failure to pay him the then minimum wage. There is power under CPR 19.6 (2) for the court to direct that a person may not act as a representative, but that power has not been invoked hitherto, though there is now an application to invoke it for the future.
CPR 19.6 (4) provides:
"Unless the court otherwise directs, any judgment or order given in a claim in which a party is acting as a representative under this rule –
(a) is binding on all persons represented in the claim; but
(b) may only be enforced by or against a person who is not a party to the claim with the permission of the court."
It has been suggested by Mr. Quirke that the order of 4 July 2014 merely creates an issue estoppel, but does not enable enforcement of the costs element against individual members of the class represented by Dr. Mayor. The judgment sum, interest and costs on account have been paid, and Dr. Mayor has brought separate High Court proceedings (now C30BM206 formerly B90BM080) seeking contribution from the other executive committee members at the time, both in relation to sums paid and further outstanding costs awaiting assessment. The figures for costs mentioned to me are eye-wateringly high, of the order of half a million pounds, and still moving upwards. Dr. Mayor also seeks to add the represented parties individually as parties to the original claim under section 51 of the Senior Courts Act 1981, for the purpose of costs.
As the parties for whom Mr. Quirke appears are the other members of the executive committee liable on Dr. Chandra's employment contract, it seems to me that CPR 19.6 (4) clearly applies, and that the order, including the order for costs, is not only binding upon Mr. Quirke's clients, but may be enforced against all or any of them with the permission of the court. It appears also from the decision of Cox J., in Howells v. The Dominion Insurance Company Ltd., [2005] EWHC 552 that exceptional circumstances are required for the court to withhold permission to enforce a judgment on liability against the represented parties. Without in any way being prescriptive, an example might be a collusive judgment, of which there is no suggestion in this case.
The object of rules such as CPR 19.6 is to avoid the unnecessary joinder of parties so as to produce an ever-lengthening list of (in this case) Defendants, where it is appropriate and sufficient to join one party as representing himself and all others in the same interest. If however needless obstacles are then erected to enforcement, the beneficial object of the rule will be undermined, because Claimants, unless enforceability is reasonably assured, will not bother to go down the representative route, but will add to the costs by joining everyone in sight in the same interest, resulting in multiple acknowledgments of service and possibly multiple representation with increased costs. That cannot be in the interests of efficient litigation, yet CPR 19.6 construed in the way suggested by Mr. Quirke might well lead to such a result.
In fairness, Mr. Quirke is not to be criticised for making that submission, because he has respectable authority behind him, namely, the decision (under the RSC pre-dating the Wolf reforms) of the Court of Appeal in Moon v. Atherton [1972] 2 QB 435, where it was suggested that the costs order could not be enforced against anyone other than the named defendant. Lord Denning MR explained
"In a representative action, the one person who is named as plaintiff is, of course, a full party to the action. The others, who are not named, but whom she represents are also parties to the action. They are all bound by the eventual decision in the case. They are not full parties because they are not liable individually for the costs. That was held by Eve J in Price v Rhondda Urban District Council. But they are parties because they are bound by the result."
As pointed out by Cox J., in the Howells case, the wording of the then RSC was not significantly different from the current wording of the CPR. However, it is clear from a full reading of Moon v. Atherton that the observations I have cited were obiter, and the Court of Appeal did not address at all the express wording of the RSC contemplating enforcement with the permission of the court. Accordingly, it seems to me that those obiter observations cannot override the clear wording of the rules, and I respectfully disagree with the contrary suggestion in the Howells case, where the point, though raised, does not seem earnestly to have been argued. In my judgment the wording of the rules is too clear to be affected by the Moon v Atherton dicta, which I therefore cannot follow.
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Ms B Alexander and others v Ms S Alexander and Mr P Johnson T/a St Kitts Herbery (A Firm): 1402342/2021 and others
...and its members” he submitted in his written closing. He also cited the decision of Chandra v Mayor; Mayor v Mahendru and others [2017] 1 WLR 729 as an example of the crystalising of claims (wrongful dismissal) against a management committee, in a case which involved an unincorporated membe......
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Ms B Alexander and others v Ms S Alexander and Mr P Johnson T/a St Kitts Herbery (A Firm): 1402342/2021 and others
...and its members” he submitted in his written closing. He also cited the decision of Chandra v Mayor; Mayor v Mahendru and others [2017] 1 WLR 729 as an example of the crystalising of claims (wrongful dismissal) against a management committee, in a case which involved an unincorporated membe......