Phipps v Orthodox Unit Trusts Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE PARKER,LORD JUSTICE PEARCE |
| Judgment Date | 14 October 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1014-1 |
| Court | Court of Appeal |
| Date | 14 October 1957 |
[1957] EWCA Civ J1014-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Jenkins,
Lord Justice Parker And
Lord Justice Pearce
Mr Graham Shanwick. Q.C. and Mr Bernard Finiay (instructed by Messrs Alfred Neale & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr R.J. Parker (instructed by Messrs Linklaters & Paines) appeared on behalf of the Respondents (Defendants).
: This interlocutory appeal arises in an action brought by Mr Ivon Morgan Phipps against a company called Orthodox Unit Trusts Limited for damages for wrongful dismissal. It appears that the Plaintiff was sale managing director of the Defendant Company, and his claim is in respect of a wrongful dismissal which took place as long age as the 13th July, 1949. He claims very substantial sums in the shape of arreare of remuneration, and, as to damages for wrongful dismissal, he bases the main part of his claim on the contention that the terms of service were such that he was entitled to remain in the service of the Trust during tha whole of its life. There is an alternative claim to the effect that in any event he must have been entitled to reasonable notice which he did not get, and he claims one year's remuneration on that basis. There is also a matter of director's fees. His main remuneration appears to have been a percentage on sales of units by the Defendant Company. The Defendants admit that the Plaintiff was wrongfully dismissed, but they say his percentage was not 1 per cent but was one-third of 1 per cent; and they contest his allegation that he was entitled to continue in the service of the Company during the life of the Trust.
After narrating the facts, the Statement of Claim gives certain particulars of damages in these terms: "The Plaintiff will contend that had he ramained as sele managing director of the defendants for the full period of the said Trust the gross value of the sales of all units or other interests in Unit or other Trusts or funds formed, managed or sponsored by the Defendants would, as far as can reasonably bo estimated, have been not less than aa average of £1,000,000 per annum after the 13th July, 1949, and would in all probability have been considerably in excess of that average and that in the premises the Plaintiff's yearly remuneration after such date would have bean, on an average, not less than £10,000 until the termination of the said Trust, and would probably have been considerably Greater. The damage sustained by the Plaintiff is the loss of the said remuneration, together with the loss of direct's fees at the aforesaid rate".
On that pleading, there was a request for partlculare, and the request was in those terms: "Under paragraph 9. Of the alleged damage stating whether the Plaintiff received any taxable income in any of the tax years from 1948/49 onwards, and if so then (i) the amount of such income from every source in each of such years; (ii) the amount of any and all assessments to income tax and surtax respectively in each of such years showing how such amounts are made up; and in any event giving full particulars of any facts which entitled or would have entitled the Plaintiff to tax allowances in respect of each of the said years". The Defendants' application for particulars in the terms I have read was refused by the Master, but on appeal Mr Justice Glyn-Jones at Chambers, by an Order dated the 31st July, 1957, reversed the Master's decision and ordered that the particulars should be given. From that decision the Plaintiff now appeals to this Court.
The question involved in the case is, to my mind, by no means free from difficulty. It is what one might describe as a by-product of the decision of tha House of Lords in the well-known case of British Transport Commission v. Courley. since that decision it has, of course, been established that where a claim is made for damages, whether for personal injuries or for wrongful dismissal, the income tax and sur-tax liability of the plaintiff is an essential element in the calculation of damages. The Question in this case is whether, that being so, the Defendants are entitled to particulars in the form which I have read. In opposition to that view, Mr swanwick for the Plaintiff says that the particulars here sought go beyond the proper function of particulars. He points out that under the Rules a pleading should contain, and contain only, a statement of the facts on which the party relies. He says that the particulars sought here are not facts material to the case; they are no more than facts from which a calculation night he made for the purpose of estimating the Plaintiffs tax liability. He admits, and he could not well do otherwise, that matters such as those referred to in the particulars sought — that la is to say, the amount of the Plaintiff's income from every source during the years in question, the amount of all assesaments and the question whether the Plaintiff would have been entitled to any tax allowances — are all relevant to the quantum of damages and will have to bo dealt with at some...
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