Turner v Grovit
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE JONATHAN PARKER,LORD JUSTICE STUART-SMITH |
| Judgment Date | 28 May 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0528-18 |
| Docket Number | 1999/0455/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 May 1999 |
[1999] EWCA Civ J0528-18
Lord Justice Stuart-Smith
Lord Justice Laws
Mr Justice Jonathan Parker
1999/0455/3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR D DONALDSON QC)
Sitting as a High Court Judge
Royal Courts of Justice
Strand, London W2A 2LL
MR ALEX HICKEY (instructed by Messrs Russell Jones & Walker, London WC1X 8DH) appeared on behalf of the Appellant (Claimant).
MR MICHAEL SUPPERSTONE QC (instructed by Messrs Dibb & Clegg, London WC2) appeared on behalf of the Respondents (Defendants).
This is a plaintiff's appeal brought with leave of Aldous LJ against a decision of Mr David Donaldson QC, sitting as a judge of the Chancery Division, on 24 February 1999 whereby he declined to grant the relief sought in a Notice of Motion filed by the plaintiff on 31 December 1998 and discharged an earlier interlocutory injunction granted by Pumfrey J on 22 December 1998. He refused the plaintiff leave to appeal, but stayed his order for discharge pending an application for leave being made to this court. In the result the injunction of 22 December 1998 has remained in force until and during the hearing before us. The plaintiff seeks, and was by Mr Donaldson's order denied, what is called an "anti-suit" injunction: that is, an order to restrain the commencement or continuance of proceedings against him outside the jurisdiction on the grounds that on the facts such proceedings are or would be abusive. In fact, having regard to events which have happened since Mr Donaldson made his order, the plaintiff now seeks an injunction in a revised form, namely to require the defendants to cause the foreign proceedings (which I shall shortly describe) to be discontinued. We indicated at the close of argument that we would consider the appropriate form of relief if the question arose in light of our judgments as to the substance of the case.
The first defendant, Mr Grovit, is alleged to be the guiding mind, controller and ultimate owner of the second and third defendant companies (to whom I will refer as "Harada" and " CSA" respectively). Harada and CSA are part of the Chequepoint Group of Companies. CSA was incorporated in Spain and carries on business there. On 10 April 1990 the plaintiff commenced full-time employment with a company called China Security Ltd, whose undertaking was, however, transferred on 10 April 1991 to Chequepoint UK Ltd. In December 1997 Chequepoint UK Ltd was taken over by Harada, an Irish offshore company which had been recently incorporated as part of the Chequepoint Group.
The Plaintiff's employment from the beginning was as Group Solicitor. Clause 3 of his original contract provided that he was to be based in London or "as you may be directed". On or about 22 October 1997 he moved to the Group's Madrid office. It seems to be beyond contest that before this move his contract of employment was with Chequepoint UK Ltd. The plaintiff asserts that they remained his employers after the move until Harada succeeded them upon their take-over of Chequepoint UK Ltd; after that his contract was with Harada. But there is a question, arising in circumstances which I will describe, whether upon his move to Spain there was a novation of the contract, substituting CSA for Chequepoint UK Ltd as the other contracting party. In relation to that it is convenient at this stage to set out the terms of a letter to the plaintiff of 21 May 1997, whose importance will shortly appear. It is written on Chequepoint headed notepaper and signed by a Mr Dodson "for and on behalf of Chequepoint UK Ltd". Mr Dodson would be one of Harada's witnesses in proceedings the plaintiff was to bring before the Employment Tribunal, which are very much at the core of the issues falling for decision on this appeal. This is what the letter says:
"Dear Paul
Further to our discussions, I set out the agreed terms of the Company's offer of relocation as follows:
1 Your present salary of £65,000 will continue.
2 The Company's present contribution to your pension will continue at the rate of 6% of gross salary per annum.
3 The Company will continue to pay medical cover at the present level.
4 The Company will continue to provide a company car at the present level and will continue to pay any MOT or its equivalent, insurance, road tax, servicing and repairs of the business mileage. The Company will continue not paying any non-business mileage.
5 You will continue to be entitled to 4 weeks holiday per annum.
6 Your notice period will continue to be 6 months.
7 The Company will continue to pay for the cost of the annual practising certificate and Law Society membership.
8 The commencement date of your relocation to Madrid will be not later than 21 October 1997.
Please sign the attached copy of this letter in acknowledgement of receipt."
And the plaintiff duly signed it. I shall make findings about the effect of this letter at a later stage.
On 16 February 1998 the plaintiff sent a fax to Mr Grovit resigning his employment. It stated:
"I regret that because executing and defending certain commercial decisions have caused me overwhelming personal conflict I have decided to give notice of termination of my contract of employment."
On 26 February 1998 without warning he left the office where he was working in Madrid. On 5 March 1998 Mr Bermudez, signing himself "Group Internal Auditor" wrote to him on CSA paper as follows:
"Last Thursday February 26 1998 you walked out of this office without any explanation. Since then you have not returned, not been available nor have you answered the phone to the many attempts to contact you on our part.
In consequence, your responsibilities as Group Solicitor have been abandoned with extensive and predictable damage to the company.
Therefore, by means of this letter, you are hereby notified that your employment contract is terminated."
Three days before that, however, on 2 March 1998 the plaintiff commenced proceedings in the Industrial Tribunal in London (The Employment Tribunal as it is now known), claiming against Harada compensation for unfair dismissal and damages for wrongful dismissal (the Tribunal having the jurisdiction to deal with the latter claim under the provisions of the Industrial Tribunals (Extension of Jurisdiction) Order 1994). His case was that he had been constructively dismissed. In his application form to the Tribunal (Form IT1) he alleged that he had been
"instructed to justify and defend the withholding by my employer and its predecessor Chequepoint UK Ltd trading as Chequepoint UK, of employees' PAYE and national insurance contributions in the UK and their equivalents in the Netherlands, and their use without the employees' consent to fund my employer's business, which was in extreme financial difficulties".
Harada contended that the Employment Tribunal had no jurisdiction to hear the claim. Its written response, on Form IT3, contains the assertion
"the applicant ordinarily worked for the respondent outside Great Britain and accordingly does not have a right to make a claim to this Tribunal which does not have jurisdiction to hear the claim…"
The Tribunal conducted a preliminary hearing at which this issue was gone into (as also was a submission by Harada to the effect that the Tribunal was biased). A reasoned decision was issued by the Tribunal on 10 September 1998, to the effect that it possessed jurisdiction (and rejecting the argument as to bias). At the hearing, as the tribunal recorded in paragraph 7 of its decision:
"Both Mr Dodson and Mr Bermudez gave their evidence and were cross-examined by counsel and were questioned by the Tribunal. They were peripheral figures who in the absence of the applicant's line manager Mr Grovit did not add much to the evidence by the applicant."
In relation to the claim for compensation for unfair dismissal the question of the Tribunal's jurisdiction depended upon the application of s. 196(2) of the Employment Rights Act 1996, which it is unnecessary to set out for the purposes of this appeal. The issue under the subsection was whether the applicant ordinarily worked outside Great Britain; if so the Tribunal would lack jurisdiction. The Tribunal held (Paragraph 12):
"The relevant clause in the employment contract is set out in paragraph 1 above ["he would be based in London or as he might be directed"]. That was the provision which remained binding at all times and the letter of 21 May 1997 does little more than confirm the continuation of the existing terms with a posting to Madrid. The terms of the 1991 contract were clear and the applicant was at all times ordinarily working within Great Britain…The relocation was temporary and the applicant was ultimately expected to return to London."
As regards the wrongful dismissal claim, s. 196(2) was not in point; the Tribunal stated (Paragraph 12):
"The respondent maintains that the applicant habitually carried out his work in respect of the contract upon which he claims in Spain and that there is a jurisdictional hurdle under the Brussels and Lugano Conventions enacted in England by the Civil Jurisdiction and Judgments Act 1982 (as amended). It is understood that the respondent contends that the applicant should sue in Spain and reliance is placed on Article 5.1 of the Brussels Convention."
Paragraph 13 of the Tribunal's decision reads:
"The relevant Articles under the Brussels Convention are Articles 2, 5.1 (alternatively 5.5). Under each of these Articles, the court with jurisdiction is England. The domicile of the respondent [Harada] is determined by s. 42 of the...
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