Soteriou v Ultrachem Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON |
| Judgment Date | 02 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1520 |
| Date | 02 November 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2004/1127 |
[2004] EWCA Civ 1520
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE ALTMAN
(Sitting as a deputy High Court judge))
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
A2/2004/1127
MR H LEDERMAN (instructed by Bar Pro Bono Unit) appeared on behalf of the Applicant
The Respondents did not appear and were not represented
This is an application for permission to appeal from a decision of His Honour Judge Altman sitting as a deputy judge of the Queen's Bench Division, a decision that was handed down on 16th April 2004. The judge's judgment is extremely full, extending to 50 pages of typescript and 146 paragraphs. I have also had the benefit on this application of an extensive skeleton argument by Mr Lederman, who appeared, as I understand, for Mr Soteriou below. The skeleton argument extends to 44 pages and 100 paragraphs, with extensive reference to authority.
I do not need in this judgment to set out the underlying facts. They are very thoroughly canvassed in the judge's judgment. If anyone other than the parties wishes to inform themselves further about this matter, they can easily apply there.
This, as is recognised, is a second appeal under the provisions of paragraph 52.13 of the Civil Procedure Rules, since the learned judge was hearing an appeal on a strike-out application from the decision in that application of Master Leslie. It is therefore necessary before this court can grant permission for it to be established that the appeal raises an important point of principle or practice. By that is meant not merely that such a point might arguably be discerned in the process, or might arise in the course of the appeal, but that the appeal significantly centres on such a point and that it is right that in the context of this appeal the facilities of this court should be used in order to decide that point.
The issues of principle said to arise are set out in paragraph 2 of the skeleton argument. They centre on, though are not limited to, the compatibility of the English law doctrine of illegality and more particularly (because the doctrine is not a single doctrine but applies differently in different chapters of the law) the law of illegality as it affects liability in contract.
The Employment Tribunal found in respect of Mr Soteriou's relations with his employers and of misrepresentations to the income tax authorities, in a passage quoted by the Master in paragraph 13 of his judgment:
"We find that, far from being a victim of Mr Brinton's [that is a representative of the employers] threatening and overbearing manner and being forced to maintain a status of self-employment for fear of losing his job, we conclude that Mr Soteriou was the prime mover in ensuring that his self-employed status was preserved following the Contributions Agency investigation. Not only that, but he made fraudulent statements to the investigators, knowing full well that the true position would have prejudiced that status. … Accordingly, we find that it would be against public policy to allow Mr Soteriou to come to this tribunal to try to claim the benefits accorded to employees under the employment rights legislation. He volunteered to exclude himself from the employment protection system from the outset."
They quoted, and significantly in this context quoted, a very well-known passage from Lord Denning MR in support of that view in his judgment in Massey v Crown Life Insurance [1978] ICR 590, where Lord Denning said:
"An arrangement between two parties to put forward a dishonest description of their relationship so as to deceive the revenue would clearly be illegal and unenforceable."
The first question that the judge had to deal with, and which he dealt with at very considerable length, was whether there was an issue estoppel arising in the present, what I will call civil, proceedings from the findings of illegality in the Employment Tribunal. He so held at paragraph 143, sub-paragraph (i), as follows:
"The findings as to illegality in the Employment Tribunal operate as an issue estoppel. Accordingly, the High Court would be bound to find that the contract for breach of which the claimant seeks to sue is unenforceable and the claim would be bound to fail. This is also the case even if this is not a case of issue estoppel, but rather of alleged abuse, for the new matters are matters that could and should reasonably have been adduced before the Employment Tribunal."
The latter is a reference to extensive argument that had been addressed to him on the principle of Henderson v Henderson.
It is submitted by Mr Lederman that the present case would not be one of issue estoppel and, as I understand it, he would wish so to contend before this court. He says, firstly, the actions are not the same —that is to say, Mr Soteriou can claim in the present claim against his employers whether or not he is employed or self-employed, and therefore the particular point precluding his access to the Employment Tribunal does not arise —and, secondly, that since the decision of the Employment Tribunal the law has changed or may have changed in view of the intervention of the Human Rights Act 1998.
I would be prepared for present purposes to accept that one or other of those arguments might succeed. I do not say would succeed, but at least might succeed. But the immediate problem for Mr Soteriou in this case is the findings of fact made by the Employment Tribunal which I have just set out. True it is that again those findings of fact would not necessarily bind the court that was hearing these present proceedings. That also is a question that might arguably be contested under the heading of issue estoppel. But in the exercise on which we are presently embarked —that is to say, whether this court should grant permission to appeal from the judge on the point that he decided —it would be artificial not to proceed on the basis that in the present proceedings either Mr Soteriou would be bound by those findings or, at the very least, there is a very significant danger that if the facts were...
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