Mr Adrian Smith v Trafford Housing Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 23 November 2012 |
| Neutral Citation | [2012] EWHC 3320 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: 1IR54453 |
| Date | 23 November 2012 |
[2012] EWHC 3320 (Ch)
Mr Justice Briggs
Case No: 1IR54453
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
(Transferred from the Manchester County Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Tomlinson QC (instructed by Aughton Ainsworth)) for the Claimant
Mr Andrew Short QC (instructed by Devonshires Solicitors) for the Defendant
Hearing dates: 18 and 19 October 2012
Approved Judgment on Damages & Costs
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Damages and Costs
When handing my judgment in this matter on 16 November 2012 I stated that the parties had agreed that the precise quantification of the damages, together with any other matters, including costs, were by agreement to be resolved upon written submissions, following which I would hand down a further short judgment.
In its original form, Mr Smith's claim was for damages for breach of his employment contract and for a declaration that, in demoting him, the Trust had acted incompatibly with his Convention rights. The claim for a declaration was based upon the allegation in paragraph 24 of the Particulars of Claim that the Trust was a public authority.
The claim for a declaration, together with those parts of the Particulars of Claim upon which it was based, was struck out pursuant to the order of District Judge Khan made on 21 March 2012, upon the ground that Mr Smith had no real prospect of demonstrating at trial that the Trust was a public authority. Mr Smith was ordered to pay the costs of that application. That decision was not appealed and it has since then been common ground that Mr Smith's case has been a private law claim for damages for breach of contract.
For the reasons given in my main judgment, Mr Smith's claim for damages is limited to the difference in his salary and benefits between his contractual entitlement and the reduced amount payable by reason of his demotion, but only for the twelve week notice period which the contract is deemed to have provided. The Trust has advanced calculations tending to show that damages are therefore limited to £98, together with interest of £4.10, and this has not been challenged by Mr Smith. Accordingly I award damages, and interest, in those amounts.
Mr Smith's claim was issued in the Manchester County Court in October 2011, the Particulars of Claim being dated 19 October. It was issued following a pre-action protocol letter by Mr Smith's solicitors to the Trust dated 20 June 2011, alleging breach of contract, and seeking re-instatement of Mr Smith to his former position as a housing manager, together with re-payment of any deductions from his salary, and the rescission of his final written warning, issued after the conclusion of the disciplinary proceedings against him. The Trust's response, by letter dated 29 June 2011 was that, since Mr Smith was still employed by the Trust, any employment concerns of his "should be raised through the recognised internal company procedures". It was suggested that it was inappropriate for the Trust to "enter into correspondence with a third party on these matters".
Following the issue of proceedings, the Trust made a Part 36 offer by letter dated 21 December 2011. The letter denied any infringement of Mr Smith's Convention rights and asserted a contractual entitlement to demote him, together with an expression of the Trust's confidence that "when the court hears the evidence from the witnesses who were upset by your client's actions, against the background of the very clear policy your client as a manager breached, we will succeed." Nonetheless, and in order to save costs, the Trust offered to pay Mr Smith £1,000, inclusive of interest, upon the basis that the Trust calculated that, even if Mr Smith succeeded in his claim for breach of contract, his entitlement would amount to a mere 84 pence.
Mr Smith did not accept that offer. The case proceeded to trial. The Trust did not call as witnesses any of those of its employees alleged to have been upset by Mr Smith's postings on his Facebook wall page. It was in the event sufficiently proved that two of his colleagues were upset, one of them because she misinterpreted Mr Smith's comments about gay marriage in church, and the other because of what I concluded was an unreasonable view about the tone of his comments.
The outcome of the trial is that Mr Smith's claim that he had been wrongly demoted, in breach of contract, succeeded. It appears that the Trust thereafter apologised to him for the way in which he had been treated, but he has not been re-instated, as he sought by his pre-action letter. A claim based upon breach of his contract of employment could not have given rise to an order for re-instatement.
Mr Smith did not accept that, if he succeeded in proving a breach of contract, his damages would be limited to £100. On the contrary, detailed submissions were made by Mr Tomlinson QC on his behalf to the effect that he was entitled to compensation for the shortfall in his reduced remuneration to date, and prospectively. I rejected that basis for quantification of damages.
CPR Part 36 .14 provides, so far as is relevant, as follows:
"(1) This rule applies where upon judgment being entered—
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer;
…..
(1A) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, "more advantageous"...
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