R v Civil Service Appeal Board, ex parte Bruce
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE TAYLOR,SIR JOHN MEGAW |
| Judgment Date | 30 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1130-2 |
| Docket Number | 88/1022 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 1988 |
and
[1988] EWCA Civ J1130-2
Lord Justice Dillon
Lord Justice Taylor
and
Sir John Megaw
88/1022
IN THE SUPBEME COUBT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF THE DIVISIONAL COURT
(LORD JUSTICE MAY AND MR JUSTICE ROCH)
Royal Courts of Justice
MR E. TABACHNIK, Q.C., and MR RICHARD DRABBLE, Instructed by Messrs Kingsford Dorman & Routh Stacey (Agents for Messrs Marsh & Ferriman, Worthing), appeared for the Appellant (Applicant).
MR NIGEL PLEMING, Instructed by The Treasury Solicitor, appeared for the Respondent (Respondent).
MR JOHN LAWS, Instructed by H.M. Attorney General, appeared for the Intervener (Second Respondent).
The court has before it an appeal by Mr Bruce against an order of a Divisional Court of the Queen's Bench Division (Lord Justice May and Mr Justice Roch) made on 19th June 1987 whereby Mr Bruce's substantive application for judicial review of a decision of the Civil Service Appeal Board was dismissed.
The factual history of the matter is that the appellant, Mr Bruce, was born in 1951 and unfortunately as a result of an illness he has been severely disabled since he was about five years old. In November 1982 he was offered employment in the Civil Service as an executive officer in the Inland Revenue Enforcement Office at Worthing. He remained in that engagement until his service was terminated with effect from 14th September 1985. He appealed, as he was entitled to, to the Civil Serivce Appeal Board, a body established under the Crown Prerogative, to consider the fairness of the termination of his service. There were submissions of case on each side and a hearing by the Civil Service Appeal Board in December 1985 as a result of which the Board by a written decision of 8th January 1986 concluded that the department's decision to terminate the appellant's appointment was fair. He therefore applied for leave to seek judicial review of the decision of the Appeal Board, and that leave was ultimately granted in February 1986. After various procedural interludes, which I need not further mention, the application for judicial review of the decision of the CSAB came before Lord Justice May and Mr Justice Roch for hearing in April 1987 and their reserved judgment was delivered, as I have mentioned, on 19th June 1987.
The ground on which the decision of the CSAB was challenged in argument before the Divisional Court was solely that the Board had failed to give sufficient or any reasons for its decision. Apart from the application for judicial review the appellant started proceedings before an Industrial Tribunal, complaining of unfair dismissal. These proceedings were started on 15th August 1985. They have so far remained in abeyance. He also, on 21st March 1986, issued a writ in the High Court alleging that the proceedings before the Industrial Tribunal had been compromised and claiming to enforce the compromise. That action is still proceeding, but in October 1986 he was granted leave to amend the proceedings and has amended them, claiming additionally a declaration that his employment was terminated wrongfully and unlawfully and without reasonable cause, and further, or alternatively, damages for wrongful and unlawful dismissal, and alternatively damages for breach of an implied term in his contract that the job offered to him would be suitabl in the light of his disability. In that action the appellant appears in person and the action is of course brought against the Commissioners of Inland Revenue, who were the employing department, and not against the Civil Service Appeal Board or, for that matter, the Attorney General who has been given leave to intervene in these proceedings. The action is still pending.
At the hearing before the Divisional Court many points were argued, but the substantive point on which the case was decided was that as a matter of discretion in all the circumstances and in view of the other proceedings which were being pursued by the appellant it was not appropriate to grant him judicial review on the ground which alone was relied on, that no reasons for the decision had been given by the CSAB. The Divisional Court did not therefore reach any conclusion on whether there was a duty on the CSAB to give reasons, or on the effect as a matter of natural justice of inadequacy of the reasons given. They did, in the course of the judgment, reach the conclusion that the employment of the appellant in the Civil Service was under the Prerogative and not under a contract of employment and also that,other things being equal,a decision of the CSAB was susceptible of being reviewed by judicial review. The decision whether or not the employment was under a contract of employment seems to have been in the result obiter. We have been asked by Mr Laws to hear argument in support of the view of the Attorney that there was a contract of employment, but since,on the view we take,this appeal must anyhow fail, anything we said on that topic would be obiter and we have therefore declined to hear argument on it. It does not affect the proceeding by the appellant in the Industrial Tribunal because there is statutory provision making that procedure applicable to employment under the Crown.
When the appeal was first mentioned there was a question whether the appeal had become academic because the parties had composed their differences. But it was explained to us that though there have been discussions and certain terms, which I need not mention, have been agreed in principle no agreement had been actually concluded, nor had any terms been signed. We accept therefore that this case is not academic.
Also when the case was opened Mr Tabachnik, for the appellant, sought leave to amend the notice of appeal to raise a fresh point not raised in the notice of appeal so far, and not canvassed before the Divisional Court. This concerned certain documents and the broad question was whether there were grounds for criticising the procedures of the CSAB because matters were so handled that the appellant was not able to put before the CSAB certain documents which he had wished to put in. We ruled against allowing any amendment, but deferred giving our reasons at that stage. I do not propose to go through the history of this document issue in detail. It is absolutely clear that the point was taken in the original form 86A which was lodged by the appellant seeking leave to apply for judicial review and it was elaborated in a supplemental notice of application for leave, settled by counsel and issued on 10th April 1987.
When the hearing before the Divisional Court came on the appellant agreed to abandon the point on the advice of leading and junior counsel of great experience then appearing for him. We have been supplied with an affidavit of the solicitor then acting who explains that when the appellant and his solicitor arrived at court both junior and leading counsel advised the appellant in the strongest terms not to pursue the documents point; "The (appellant) stated that he wished this aspect of his case to be argued but both Counsel made it plain they were not prepared to do so at public expense. The (appellant) then instructed…Counsel to abandon the documents argument which he did." The solicitor goes on to say that he" wished Counsel to reconsider the matter as the advice had been given under pressure of time at the door of the Court", and so a facsimile transmission was sent to junior counsel stressing the appellant's continued concern at the abandonment of the documents point in its entirety. Counsel was asked to reconsider the documents contained in the bundles before the court and the aspects of the documents point. There was then a further conference with junior counsel before the next day's hearing in the Divisional Court on 50th April when counsel confirmed that he had reconsidered the matter fully, but remained of the view that the documents argument was untenable. The applicant reluctantly accepted that advice. The whole of the documents argument therefore in all its limbs was abandoned by the appellant in the court below.
Having now changed solicitors and counsel he seeks to resuscitate the point.
The decision of the Divisional Court was given, as I have said, on 19th June 1987. The notice of appeal was given on 3rd December 1987. The appeal was fixed for hearing this week as long ago, we were told, as July 1988. The notice seeking to amend the notice of appeal to resuscitate the documents point and supported by an application to admit...
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