Easton v Ford Motor Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 22 April 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0422-1 |
| Docket Number | No. QBEN1 92/0525/E |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 1993 |
[1993] EWCA Civ J0422-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
(Mr. Justice Eastham)
Before: Lord Justice Dillon and Lord Justice Butler-Sloss
No. QBEN1 92/0525/E
MR. C. DEHN, Q.C., and MR. SHANKS (instructed by Messrs. Lovell White Durrant) appeared on behalf of the Appellant.
MR. G. TATTERSALL, Q.C., and MR. A. MORAN (instructed by Messrs. Poole Swale) appeared on behalf of the Respondent.
( )
Thursday, 22nd April, 1993
This appeal is an appeal by the defendants in the action, the Ford Motor Company Ltd., against an interlocutory decision of Mr. Justice Eastham given on the 3rd April 1992.
By his decision the judge dismissed an appeal by the defendants from an earlier decision of the District Registrar, Mr. Wilkinson of the 7th October 1991.
The material effect of that was that, though Mr. Justice Eastham allowed certain amendments to the defendant's defence, two particular amendments which the defendants had originally sought by a summons issued in June, 1991, were refused on the grounds that they raised a fresh issue, a fresh defence and, in the judge's view, the interests of justice —and the authority of Lord Griffiths in Ketteman -v- Hansel, to which I shall come —required that the Court should not allow the amendments to be made.
The action was initially brought by two plaintiffs, the first plaintiff Mr. Easton and the second plaintiff, Mr. Westbury. The writ was issued on 28th April 1986. However, we can forget about Mr. Westbury because, a considerable time ago, in December 1987, he accepted a payment into court by the defendants in respect of his claims. Mr. Easton has since then been the sole plaintiff.
It is unnecessary to go into any great detail of Mr. Easton's claim. The basis is that Mr. Easton was employed by the Ford Motor Company at their factory at Halewood. In 1980 Ford established a scheme called "Employee Suggestion Plan". The scheme offered certain categories of employee, which included Mr. Easton, awards not exceeding at the relevant time £2,500, together with a new motorcar, for suggestions made by the employee which, on being adopted by Ford, either saved Ford money or otherwise conferred some advantage on Ford in the carrying out of its business.
It is not in doubt that in September 1980, or thereabouts, Mr. Easton submitted a suggestion proposing a modification or modifications to the radio earth wire fitted on Ford Escort cars. That suggestion was to the effect either that the wire should be shortened or that, instead of being made of a braided material, it should be made of a cheaper material. The combination of the two, rather than either suggestion individually, was adopted by Ford.
Mr. Easton's claim is that he should have been granted an award.
Until recently the essence of the defence put forward was to the effect that Mr. Easton did not get any award, because his suggestion was not novel. It was said that the idea of shortening the radio earth and securing it to a different point had been put forward by a Mr. Carney in August, 1980, before Mr. Easton's suggestion, and the suggestion of a thinner earth wire had also been made earlier than Mr. Easton's suggestion.
There was a suggestion in the pleadings at one stage that the cheaper wire idea had come from a Mr. Johnson, but that was corrected by an amendment of the pleadings to say that it came from a Herr Schollmann in 1977. It appears that Herr Schollmann was in fact an employee of the German Ford Company and not an employee of the English Ford Motor Company Ltd.
The new point which it is sought to put forward by the further amendments which are in question is that it is provided in the Scheme documents that the committee which has to scrutinize the various employees' suggestions, the Suggestion Plan Committee, has a position of finality and therefore its decision cannot be challenged. It is common ground on the facts that the form of application which is signed by a person making a suggestion includes the statement: "All decisions made by the Suggestion Committee regarding eligibility, adoption, rejection or award shall be final". It is not in doubt that that document is contractual. There is also a booklet, which is issued to employees which says this: "Someone has to have the last word so all decisions made by the Committee under the plan, including those regarding eligibility, adoption, rejection or award, are final and binding upon the suggestor".
The particular amendments, therefore, which Ford now want to make are these. First of all, the introduction into paragraph 2 of the re-amended defence of the following: "Decisions on awards were made by the Suggestion Plan Committee at the employees' location and it was a condition of the scheme set out on Form 7325" which is the application form, "and in the said booklet that the decisions of the said Committee were final". In addition, it is sought to add in particulars under paragraph 5, as the last two lines under 5B: "In accordance with the terms of the scheme the said decision was final". That provision in the form and in the booklet has been referred to in argument as the "Finality clause".
The application to make these amendments was only made, as I have mentioned, in June 1991, although the action had been begun in 1986. It is pertinent to bear in mind the remarkably slow pace at which this action had proceeded.
There was indeed reasonably prompt action in 1986. After the issue of the writ the Statement of Claim was served on the 2nd June 1986, and the defence on the 6th August 1986. Further and Better Particulars of the Statement of Claim were served on the 29th September 1986, and a reply on the same date. Further and Better Particulars of the defence were served on the 20th January 1987. There was then a pause. On the 10th September 1987 the plaintiffs' list of documents was served, and the defendants' list followed on the 19th November 1987. Ignoring the position of the second plaintiff, Mr. Westbury, who, after that accepted the payment into court, the next step was almost two years later, on the 8th November 1989, when an amended defence was served. There was then a further near-on a year of delay until, on the 5th October 1990, interrogatories were served on the defendants. These were answered on the 21st February 1991. There was a matter then of amendment of the reply. In June there were the applications to amend the defence by raising the matter of the "Finality clause" with certain other amendments, which were for clarification only and are not in dispute, coupled with an application that in relation to the "Finality clause", if that was allowed as an amendment to the pleading, there should be a direction for the trial of a preliminary issue. It was however made plain that the defendants' desired to plead the "Finality clause" whether or not a preliminary issue was ordered, though it has been on the hearing of this appeal, the common view of counsel on both sides that subject to appropriate wording a preliminary issue will be useful.
The Summons for Directions has not yet been issued and the case therefore is far from having a fixed date for trial. In point of fact, the parties are also agreed that it is appropriate that the case should be remitted to the County Court for trial since, although the amounts claimed when the writ was issued were above the County Court jurisdiction, the amounts are now well within the County Court's jurisdiction so that to remit the case to the County Court would be appropriate.
In considering whether or not to allow this amendment, Mr. Justice Eastham referred to an affidavit by a Mr. Fallon, who is employed by the solicitors who act for Ford. In paragraph 14 of that affidavit Mr. Fallon said: "I took custody of Ford's defence in October 1990. Having considered the papers with counsel, it seemed clear to me that there was a further point which Ford might take on the pleadings, namely that the decision of its Suggestion Committee was —as a matter of contract —binding both upon the employee from whom the suggestion emanated and upon Ford itself". The position appears to be that though it is obvious, when the application form and the booklet are looked at, that the "Finality clause" is part of the contract and is something that should have been pleaded, nobody happened to notice it when the papers were being prepared, presumably by the solicitors, for submission to counsel, nor was it spotted by counsel when the pleading was originally settled. I can see no reason for supposing that there was anything sinister in the fact that the "Finality clause" was not pleaded by counsel in the original pleading and I have no reason to doubt Mr. Fallon's statement in his affidavit that the "Finality clause" and its effect were appreciated by Mr. Fallon for the first time. They were indeed, as is clear from the evidence, known to Mr. Easton and his solicitors at the time that the proceedings were instituted.
Mr. Justice Eastham considers in his judgment the law in relation to the amendment of pleadings. He refers to section 49 (2) of the Supreme Court Act 1981, which sets out that the Court shall so exercise its jurisdiction in every cause or matter before it so as to secure that as far as possible all matters in dispute between the parties are completely and finally determined and all multiplicity of legal proceedings with respect to any of those matters is avoided.
Then he quotes passages to which he...
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