Turner v Grovit

JurisdictionUK Non-devolved
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT,LORD SCOTT OF FOSCOTE
Judgment Date13 December 2001
Neutral Citation[2001] UKHL 65
Date13 December 2001
CourtHouse of Lords
Turner
and
Grovit

And Others

(Appellants)

[2001] UKHL 65

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hobhouse of Wood-borough

Lord Millett

Lord Scott of Foscote

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse of Woodborough. For the reasons he gives I would refer to the European Court of Justice the question formulated by him on the interpretation of the 1968 Brussels Convention.

LORD HOFFMANN

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse of Woodborough. For the reasons he gives I would refer to the European Court of Justice the question formulated by him on the interpretation of the 1968 Brussels Convention.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

3

By Article 3(1) of the Protocol on the interpretation of the 1968 Brussels Convention by the European Court signed at Luxembourg on 3rd June 1971 (the 1971 Protocol) made part of English domestic law by s.2(1) of the Civil Jurisdiction and Judgments Act 1982, your Lordships' House is under an obligation, where a question of interpretation of the Brussels Convention is raised in a case pending before it and the House considers that a decision is necessary in order to give judgment, to request the European Court of Justice to give a ruling on that question. Your Lordships are in agreement that such a question of the interpretation of the Brussels Convention is raised in the present case and accordingly will refer the question to the Court of Justice. In this speech I will therefore, besides formulating the question of interpretation, state the facts which have given rise to this question and provide a statement of the English domestic law which is relevant to explain how and why the question arises and to provide a brief discussion of the arguments. The facts which I will set out are derived from the findings of fact made by the Court of Appeal in the present case and by the Employment Tribunal in its judgment of 10 September 1998. These findings have been made in contested proceedings after receiving evidence from and the submissions of the parties. Before your Lordships, the appellants have again sought to present a different view of the facts but it is upon the facts as so found that the question of interpretation arises and is referred. Your Lordships have heard full argument upon the relevant questions of English domestic law. Mr Turner himself has not taken any part in this hearing and has not been represented. In order to be able fully to consider the legal arguments your Lordships requested the assistance of an amicus curiae to present the relevant legal arguments and materials to the House. I am sure that I speak for all your Lordships in expressing my gratitude to Mr Laurence Rabinowitz for his assistance.

The Facts:

4

The parties to the present proceedings are as follows:

Mr Gregory Paul Turner, the claimant, who is a British citizen and is, and has at all material times been, domiciled in the United Kingdom.

Mr Felix Fareed Ismail Grovit, the first defendant who is likewise a British citizen, described by the claimant as being domiciled in the United Kingdom and by Mr Grovit as being domiciled in Belgium. He appears to have residences in both countries. Harada Ltd, the second defendant, which is a company incorporated in the Republic of Ireland but carries on its business in the United Kingdom as a UK registered overseas company under the name 'Chequepoint UK' with its seat in the United Kingdom. Changepoint SA, the third defendant, which is a company incorporated in the Kingdom of Spain and carries on business there. Mr Turner is the respondent to the appeal to this House; the defendants are the appellants. As previously stated the former was not represented before us; the latter have throughout these proceedings been jointly represented by senior and junior counsel.

5

The two defendant companies are part of the 'Chequepoint Group'. This is a group of companies incorporated in a number of countries including various tax havens. The member companies have varied from time to time as new companies have been formed and existing ones dissolved. The directing mind of the group is Mr Grovit who effectively controls what the group does. The principal business of the group is bureaux de change and companies in the group carry on business in a number of different countries. But the origin of the group was the United Kingdom and it is in the United Kingdom and Belgium that it has its head management.

6

Mr Turner is a qualified English solicitor with a practising certificate (ie, a licence to practise as an English solicitor) from the Law Society London. He has never at any time had any qualification to act as a Spanish lawyer nor is he competent or permitted under Spanish Law to practise as a Spanish lawyer in Spain.

7

In 1990 Mr Turner entered the employment of China Security Ltd, a company in the Chequepoint group, incorporated in Hong Kong and registered under Part XXIII of the UK Companies Act 1985 as an overseas company in the United Kingdom with its place of business at 43 Oxford Street, London. The terms of Mr Turner's contract of employment were set out in a letter on the writing paper of that company dated 10 April 1990 signed by the "Group personnel director" on behalf of China Security Ltd and countersigned by Mr Turner. The letter described the company as the employment company for the group. His employment was to be as "Group Solicitor" with responsibility for all group legal matters apart from "company secretarial". He was to be based in London but could be required to travel. His salary was a sum in sterling. Detailed provisions covered pension contributions, health insurance, the provision of a company car, holidays, normal hours of work, notice, etc. The company would pay his practising certificate fee and for his Law Society membership. His role as group solicitor was to cover all group UK conveyancing and (if requested) liaison on other conveyancing; all "commercial matter" relating to existing companies within the group, new business, joint ventures and acquisitions; all UK litigation; all UK legal enquiries; and "other legal matters which may arise from time to time within the group". He reported to Mr Grovit. At the same time as signing these terms he also signed a confidentiality/ non- solicitation/ non-competition undertaking.

8

At the end of 1990 Mr Turner's contract was (with his agreement) transferred to a British Virgin Islands company, likewise registered in the United Kingdom, called Chequepoint UK Ltd and on 31 December 1997 it was again transferred, this time to Harada Ltd. Each of these transfers took place as part of a transfer of assets from one group company to another and did not alter the terms of Mr Turner's contract. The proper law of his contract continued to be English law.

9

In November 1996 Mr Turner had indicated that he was minded to resign from his employment as he wanted to learn Spanish and would like to live in Spain while he was doing so. His employers were anxious to retain his services and agreed that he could move his office to Spain and do the work there that he would have done in London. This was what occurred and the London office remained his address registered with the Law Society and he remained the person registered to accept service there for Chequepoint. He continued to report to Mr Grovit in Brussels. The Madrid office was a small one and it was contemplated that Mr Turner would not stay there for more than a year and would then move on to the Paris office. The terms of his relocation were agreed between Chequepoint UK and Mr Turner in a letter dated 21 May 1997 which varied the terms of the letter of 10 April 1990. It was again on the company writing paper and signed and countersigned. It provided that his "present salary of £65,000 will continue"; Chequepoint UK would continue to pay the pension contribution and medical cover, continue to provide and pay for a company car, and continue to pay for his annual practising certificate and Law Society membership; the holiday and notice provisions would continue as before. In other words, although he was to relocate to the Madrid office his previous contract was to continue in force and his employer was to continue to be Chequepoint UK. He continued to be paid by Chequepoint UK (and then by Harada) in sterling with deductions as required by English law.

10

However Mr Turner did not move to Spain until November 1997. He took a six month lease of a flat in Madrid. On 16 February 1998 he gave notice to Harada. He did not go into the Madrid office after 26 February. He had only worked in Spain for a total of 35 days. He did not renew the lease on the flat when it expired. He returned to London where on 2 March 1998 he commenced proceedings for unfair and wrongful dismissal against Harada in the Employment Tribunal in London. These proceedings were served on Harada at its registered address for service in London. The nature of the claim he made was that there had been repudiatory breaches of his contract of employment which were tantamount to dismissing him. He alleged that there had been attempts to involve him in unlawful and irregular conduct in relation to the misuse of, and failure to account for, deductions from the wages and salaries paid to the employees of group companies. It would have been material for Harada, besides denying his allegations, to allege in answer that Mr Turner had been in breach of his obligations and that it would have been justified in dismissing him (whether or not it knew of such breaches at the time). The allegations later made against Mr Turner in the Madrid proceedings would be directly material to the...

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