England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CARDIFF COUNTY COURT
(Mrs Recorder J Crowley QC)

		Royal Courts of Justice Strand London WC2
		30th June 2000

Friday, 30th June 2000

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: The claimant, Nicholas Jones, was an employee of the defendant, MBNA International Bank Ltd ("MBNA"), from the end of October 1994 until 6th September 1995 when he was summarily dismissed on the ground of gross misconduct. These proceedings arise from that action taken by MBNA.
2. Mr Jones, in the autumn of 1994, had worked for over 20 years in a specialist area of banking concentrating on the money and foreign exchange markets. He was then working for the Bank of Wales in South Wales, where he lived in his own house with his young son. He is divorced. He was then offered, and accepted, employment as a Senior Personal Banking Officer with the function of Money Market Manager in MBNA's Treasury Department. He was to be based in Chester, and the offer of employment included an offer to pay up to £3,000 of relocation expenses. The terms of his employment, as were found at the trial and are now not disputed, entitled MBNA to give Mr Jones, in September 1995, only two weeks' notice to terminate the employment, and that notice could be dispensed with if MBNA had "reasonable grounds to believe that the employee is guilty of gross misconduct or gross negligence" (paragraph 15 of the statement supplied to Mr Jones of his main terms of employment). MBNA also had a Corrective Action Policy referred to in Mr Jones' contract of employment. This provided that normally there would be three written warnings issued to the employee at fault, the third such warning being the final warning and, if that was followed by a fourth default within six months, dismissal could follow.
3. Mr Jones obtained from MBNA a credit card, called a People Card, with a £5,000 credit limit. He was also provided by MBNA with a card called a Cost Centre Card for use for authorised expenses. Mr Jones' work performance after seven months was appraised in June 1995 as "excellent". But in July 1995 a routine review of Mr Jones' Cost Centre Account revealed six anomalies which required investigation. From that investigation there only emerged a niggling concern that Mr Jones was a little slow in putting in his claims for expenses.
4. At about the same time, concern arose about an adverse credit reference recorded against Mr Jones. But in a memorandum to Hugh Chater, the head of personnel, Robin Russell, the Chief Financial Officer, said that although Mr Jones' management of his personal affairs left something to be desired, there was no cause to doubt his integrity. Mr Russell said that he had stressed to Mr Jones that in his position there must not be a shadow of doubt as to his integrity, and that given that incident there was no room for deviation from the highest standards of behaviour, in both form and substance, if Mr Jones was to keep MBNA's trust.
5. Mr Jones, in August 1995, was hoping to complete the purchase of a house in Wrexham on 12th September 1995. On 14th August he accepted a written quotation dated the 9th August from a firm of removers, Masons, for storage and, ultimately, the removal of his possessions to Wrexham. Mr Jones paid Masons a cheque for £153.40 for that part of the costs which had already been incurred for removing his possessions into storage and for four weeks' storage in Masons' storage depot. The quotation for removal from storage was for a further £364. All this was within the £3,000 promised by MBNA as the limit for relocation expenses.
6. Mr Jones then went on his annual holiday, returning to work on Monday 4th September 1995. His case at the trial was that on Friday the 1st or Saturday the 2nd September, while he was with his parents in South Wales, he made out a cheque for £364, payable to Masons, who wanted advance payment. He put it in an envelope, which he addressed, but then found that he had no stamp for it. He asked his mother to stamp and post the letter.
7. On 4th September Mr Jones, back at work, handed his claim for expenses in August to his line manager, John Cummins. He claimed relocation expenses, including £517.40 for removals. That was made up of the £153.40 paid on the 14th August and the further £364 the subject of the quotation. He attached a copy of the quotation on which his acceptance of the quotation had been endorsed. On the claim form was a note that items marked with an asterisk denoted the item as paid but that no receipts had yet been received. No item in fact appears to have been marked with an asterisk, when Mr Jones was plainly indicating that the removal expenses for which no receipt had been supplied had been paid.
8. Mr Cummins was unhappy with the operation by Mr Jones of his People Card Account, which he found was a little over the credit limit, and of Mr Jones' Costs Centre Card Account which had outstanding items to be cleared. Mr Cummins discussed the situation with Mr Chater on 4th September. The view was taken that disciplinary action was warranted.
9. A meeting was convened for the 5th September for Mr Jones to face Mr Russell, Mr Cummins and Mr Chater. Mr Chater's note of the meeting and of what had immediately preceded it was as follows:

"Hugh Chater (HC) explained to Nick Jones (NJ) that the purpose of the meeting was to make him aware of concerns that the company has over the way that he is conducting his Cost centre card, his People card and his relocation expense claims. HC went on to say that Robin Russell (RR) had spoken to NJ in July regarding the importance of running these accounts and transactions precisely according to the policy and procedures that govern them. However NJ is currently overlimit on his People card, there is an amount outstanding to be cleared on his Cost centre card and there is a query over the veracity of his most recent claim for relocation expenses.

John Cummins (JS) said that he had earlier in the day asked NJ whether he had paid the amount for Masons removals of £364.00 claimed on the expense claim dated August 1995, submitted on 4th September. NJ had replied that he had paid the amount. In checking with Masons HC had been told that the amount was outstanding and that the invoice, for a total of £395.20 had only been raised and sent out today. This once again raised doubts over the integrity of NJ and in particular his personal finances. Given his role there could be no room for the slightest doubts.

NJ said that he had sent the cheque at the weekend whilst he was in South Wales. He said that he appreciated that he had not kept his personal finances under control and could only offer 'personal negligence' as the reason for this.

JC said that if NJ was seen as personally negligent then the assumption would be that he could also be professionally negligent.

HC said that NJ had received several warnings from RR and JC about the need to bring his card accounts and expenses claims in line with policy. These had obviously not had the desired effect and the purpose of this meeting had been to find out what the reason for this had been. Having heard what NJ had to say the company would take a short time to consider its position, during that period of consideration NJ would be asked to remain at home on 'leave of absence'. HC hoped that the matter would be resolved in the next 24 hours and would contact NJ as soon as possible to arrange a follow up meeting."

10. The figure of £395.20 would appear to have been made up of the £364 in the quotation plus two further weeks' storage.
11. The next day, Mr Jones was summoned to a further meeting with Mr Russell, Mr Cummins and Mr Chater. He was invited to add anything that he wanted to what he had said the previous day. Mr Jones said that he could see that he had acted less than reasonably. He referred to the difficulties of relocation and acknowledged that his personal financial affairs had not received the full attention they needed. He said that he was deeply hurt that MBNA could consider that he had acted dishonestly and he apologised for any mistakes made. He said that he knew that an offer of employment for the role of trader, which he had performed, had been made to another person and that he had begun to feel that he was not wanted. He was told that the strengthening of the Treasury was not a judgment on Mr Jones and that the matter solely concerned his conduct and was not a reflection on his performance. Mr Russell told Mr Jones that a further check had been made with Masons, who had still not received the payment from Mr Jones, which he had claimed to have posted at the weekend from South Wales.
12. Mr Chater's note of the meeting continues:

"We therefore believe that NJ has not been totally upfront on the expense claim and that in the light of the background with the other issues concerning his personal finances this amounted to a fundamental breakdown in trust. This was not something that we could tolerate given NJ's role and responsibilities. Therefore we were regretfully dismissing NJ on the basis of gross misconduct for submitting a false expense claim."

13. By letter dated 7th September MBNA confirmed the summary dismissal. Mr Jones was told that his conduct relating to the expenses claim was gross misconduct leading to a fundamental breakdown in trust between Mr Jones and MBNA. Mr Jones, shortly afterwards, found that his mother had not in fact posted the letter containing the cheque to Masons. Mr Jones' evidence was that he then tore up the letter and cheque.
14. Shortly before Mr Jones had been offered a job with MBNA in 1994, MBNA had tried to employ Duncan Akin as Money Markets Manager, but Mr Akin had refused the job. In July or August 1995 MBNA again approached Mr Akin, and by letter dated 1st September 1995 it offered him the position of Trader/Money Markets Manager. That offer was accepted by Mr Akin on the 8th September.
15. After his dismissal, Mr Jones attempted, without success, to find work in the Treasury/Money Market sector of the banking industry. He has since obtained qualifications to enable him to obtain lecturing and training work.
16. Mr Jones commenced proceedings against MBNA in June 1996 in the Cardiff County Court, claiming damages for the wrongful termination of his employment contract. Originally the sum claimed was some £19,000. By his original particulars of claim, he claimed a sum a little over £18,000 as special damages, which included salary for a notice period of six months. On 5th March 1998 the particulars of claim were substantially amended. By then the House of Lords had decided in Mahmud v BCCI [1998] AC 20 that contracts of employment contain an implied term of mutual trust and confidence and that, if that term is breached by the employer, foreseeable financial loss caused by the breach is in principle recoverable by an action by the employee in contract.
17. Mr Jones now pleaded an implied term of his contract of employment with MBNA that it would not, without reasonable and proper cause, conduct itself in a manner calculated to destroy or seriously damage the relationship of confidence and trust between MBNA and Mr Jones. (I shall call this pleaded term "the Implied Term".) He pleaded the circumstances relating to Mr Akin and averred that MBNA's intention in making its offer of employment to Mr Akin was to replace Mr Jones by Mr Akin; rather than bring Mr Jones' contract to an end in accordance with its terms, MBNA determined to end it on purported grounds of gross misconduct, regardless of whether Mr Jones' conduct was such as to come within that description. It was pleaded that MBNA, on the 6th September, wrongfully determined Mr Jones's contract and dismissed him, although no notice had been given or payment made in lieu of salary. Further, it was pleaded that in determining to end and in ending Mr Jones' contract, MBNA acted in breach of the Implied Term. As particulars of that pleading, it was pleaded that, as MBNA well knew, Mr Jones's conduct in relation to the removals expenses claim could not properly be, and should not have been, categorised as gross misconduct. Mr Jones claimed a continuing loss of wages resulting from his inability to find work in the Treasury/Money Markets sector of the banking industry and claimed £81,035 past loss and £185,295 future loss.
18. In its defence and counterclaim MBNA admitted the Implied Term but denied any breach of it and counterclaimed for £5,581.61, being the sum outstanding on Mr Jones's People Card.
19. The case came on before Mrs Recorder Jane Crowley QC and was tried over several days in June and November 1998. Among the witnesses who gave evidence were Mr Jones, Mr Russell, Mr Stearns (the fraud manager of MBNA) and Mr Chater. In her judgment, delivered on 11th November 1998, the Recorder referred to Mr Chater's evidence that MBNA believed that Mr Jones had submitted a claim for an amount which he had not yet paid, that he was trying to get reimbursement ahead of payment and that he had been lying when he said that he had paid Masons. The Recorder referred to Mr Chater's and Mr Russell's evidence that MBNA, although concerned about the management of Mr Jones' accounts, had not taken the view that his disorganisation was so bad as to require the imposition of direct deductions, which was a sanction available to MBNA, nor did it warrant a formal written warning as set out in the Corrective Action Policy. She referred to the fact that Mr Chater had agreed that if Mr Cummins had seen Mr Jones put his cheque in the post and Mr Cummins had then received a lodged claim from Mr Jones, it was possible that in his discretion Mr Cummins could properly have paid out on the claim, even though he knew that the cheque had not arrived at its destination. She also referred to Mr Chater's evidence that it was possible that, without the background of previous concerns, Mr Jones' conduct over the removals claim would not have been considered to be gross misconduct.
20. The Recorder found as a fact that the account given by Mr Jones to MBNA about paying Masons, though not accurate, was one which he believed at the time to be true, and that he had not tried to trick, cheat or to deceive MBNA. The Recorder continued:

"As to whether the bank acted reasonably in reaching the conclusion that he was not being truthful, in my judgment, their reaction must be looked at in its fullest context: Mr. Jones had never had his honesty or integrity doubted before; he had been the subject of some enquiries but had been vindicated wholeheartedly insofar as his integrity was concerned. Only weeks previously, Mr Russell had been at pains to state that the plaintiff's integrity was not in question; the plaintiff held a senior post in the bank and had carried out his professional duties impeccably. It was known that he was due to move and that a reimbursement of his expenses would inevitably be made. It was not thought that he was trying in fact to defraud the bank. There was a history of earlier concerns which, as I have already stated, were not considered to be of sufficient gravity to invoke the disciplinary warning procedures. It has been conceded that the plaintiff might, for instance, have been asked whether or not he could produce his cheque stub in order to assist the enquiry or whether he had used first or second class post; none of these enquiries was in fact made. It is not beyond most people's experience that the post can sometimes take several days to be delivered, particularly when a weekend is involved."

21. On the question whether the dismissal was wrongful, the Recorder said:

"In my judgment, the bank did act unreasonably in deciding that this was a gross misconduct case as they did not, as I find it, have regard to all the circumstances, including the fact that in certain circumstances they might indeed have a made an anticipatory payment when they knew that such a payment would be inevitable. The misconduct now relied upon -- although it seems to be that it is not quite the same as that which had been put to the plaintiff at the time when he was being questioned about it -- is essentially that he told a lie. It does seem to me that the thrust of the matter which was being put to him in the first instance was that his claim was a trumped up one or one which was not properly to be incurred. In all the circumstances, it seems to me that the bank jumped unreasonably and hastily to the conclusion that the plaintiff had lied, without giving him the benefit of their knowledge of his history of honesty and industry in their employ. It would have a been possible to have made further enquiries to establish why the invoice was being paid ahead of the move or to have enquired as to the postal arrangements. The whole thing feels unfair, and indeed the defendants themselves through their counsel acknowledge that in normal circumstances to dismiss for the untruth might be considered to be unduly harsh and they relied on untruth in the context of the overall background. I have already dealt with that to the extent of finding that that history did not amount to anything much more than a minor concern, not sufficiently serious to merit the dignity of a formal warning. I find it impossible, in those circumstances, to hold that such a background transforms an incident which would not otherwise in itself necessarily amount to gross misconduct into such misconduct, and I find for the plaintiff on that aspect of this claim. It seems to me that, on the facts of this case, the bank did not in any event have reasonable grounds to believe that the plaintiff had committed an act of gross misconduct; they had a general history to consider, not just the specific matters of concern which they now seek to rely upon."

22. The Recorder then turned to that part of Mr Jones' claim which relied on the Mahmud decision. He found it highly likely that Mr Jones would, as a result of his dismissal and its circumstances, find it very difficult to secure alternative employment in the banking and finance world. She pointed out that Mahmud was not a case specifically about dismissal and that it left open a question as to the circumstances in which a disciplinary dismissal would bring about a breach of the Implied Term. She continued:

"The mere fact that a dismissal is a wrongful one does not of course of itself constitute a breach of the implied term; it must go further than that; I must be satisfied that the bank has positively acted in bad faith towards this plaintiff."

23. Thereby she accepted the submission of Mr Pitt-Payne, junior counsel then appearing for MBNA, which Mr Stewart, then appearing on his own for Mr Jones, specifically accepted as correct.
24. The Recorder considered whether the dismissal was part of an elaborate plan to replace Mr Jones with Mr Akin, but she accepted the evidence of MBNA's witnesses on this point. She, therefore, rejected the allegation of bad faith, and with it went any claim based on breach of the Implied Term. In the result, therefore, the Recorder awarded Mr Jones damages limited to his salary for the two weeks' notice period and granted MBNA's counterclaim which was not opposed.
25. On 9th December 1998 Mr Jones filed his notice of appeal. Of the four grounds which it contained (I need not set out the first three as they have been deleted by Mr Jones) the fourth ground was that the Recorder should have found that Mr Jones suffered continuing financial loss flowing from the breach of the Implied Term in respect of damage to reputation. He claimed £369,513 by way of damages.
26. MBNA, by its respondent's notice and cross-appeal dated 23rd December 1998, as amended on 3rd February 1999, took the point that Mr Jones had conceded that bad faith was necessary for him to succeed in his claim based on the Implied Term, and that he was attempting to put his case quite differently from the way it had been conducted at trial. MBNA also cross-appealed on the ground that the Recorder ought to have held that MBNA had reasonable grounds for its belief at the time of dismissal that Mr Jones was guilty of gross misconduct.
27. In July 1999 Mr Jones sought to make further amendments to his notice of appeal. He would now delete the first three grounds in his original notice of appeal and substitute the ground that, in the light of the findings of fact made by the Recorder, she should have concluded that MBNA acted in breach of the Implied Term on the basis that MBNA had wholly unreasonably

(i)questioned the integrity of Mr Jones, particularly the bona fides of his claim in respect of relocation expenses,

(ii)subjected him to two disciplinary hearings, and

(iii)assuming that it was entitled to believe (which in fact it was not) that Mr Jones had not yet tendered the payment for which he was claiming reimbursement, chose to treat the handling of his claim as gross misconduct, notwithstanding that he had indisputably incurred a liability to pay the sum in question and MBNA had undertaken to pay his relocation costs to the limit of £3,000.

28. The fourth ground of the original notice of appeal is retained. The order sought by Mr Jones is that judgment be entered for him, and that the case be remitted to the county court for damages to be assessed.
29. The application to amend was opposed by MBNA. There was a hearing before Buxton LJ on 24th November 1999 at which he declined to make any order either to refuse or to allow the application, which, he said, should be made to the full court; and he gave directions so that the proposed case for the amendment was better particularised. This has been done.
30. At the hearing before this court we have had the benefit of argument from Mr Reynold QC, leading Mr Stewart for Mr Jones, and Mr Jeans QC for MBNA.
31. The first question to be determined is whether Mr Jones should be allowed to take on this appeal the two points which appear in his amended notice of appeal. They are that:

(1)MBNA was in breach of the Implied Term by acting wholly unreasonably in the ways indicated in that document; and

(2) Mr Jones suffered continuing financial loss flowing from the breach of the Implied Term in respect of damage to reputation.

32. Mr Reynold concedes that neither point was argued below and that it represents to some extent a departure from Mr Jones' pleaded case. In response to an invitation from this court, Mr Reynold made an offer that if this court were to allow the new points to be argued, Mr Jones would accept a condition that any costs of the appeal which this court should require him to pay should come out of any award of damages made in consequence of a successful appeal.
33. On the first point, Mr Reynold gave particulars of the proposed amendment in this way:

"If the learned Recorder had been directed to the point in issue (namely, whether the Respondent's conduct irrespective of whether or not it had planned to replace the Appellant with Mr Akin, constituted a breach of the implied term) she would have been invited to find, and would have found, that the Respondent had acted unreasonably in:

(i)not accepting the documentation submitted by the Appellant in respect of his removal expenses at face value, and in making further enquiries of the removal firm;

(ii)questioning the honesty and integrity of the Appellant in the context of his expenses claim; and

(iii)convening two disciplinary hearings to consider and resolve whether or not the expenses claim was genuine."

34. Mr Reynold said that he would be inviting this court to make those findings which the Recorder did not make. Those findings, he said, would have been consistent with and/or would have flowed from the findings of the Recorder that

(i) MBNA was obliged to reimburse Mr Jones for relocation expenses up to £3,000;

(ii) Mr Jones had accept Masons' quotation of £364 payable in advance and had submitted the quotation in support of his claim;

(iii) MBNA knew Mr Jones was due to move to a new property and that reimbursement of his expenses would inevitably be made;

(iv) there was a discretion to allow payment on a claim in anticipation of payment if it was believed the claimant would incur the expenditure imminently;

(v) Mr Jones' honesty and integrity had never previously been called into question;

(vi) Mr Jones had a senior post and had carried out his duties impeccably;

(vii) MBNA acted unreasonably in treating the case as one of gross misconduct;

(viii) MBNA had jumped unreasonably and hastily to the conclusion that Mr Jones had lied;

(ix) MBNA's enquiry into the expenses claim was clumsily carried out.

35. Mr Reynold argued that he was not asking this court to allow Mr Jones to withdraw a concession. That, he said, was because what Mr Stewart for Mr Jones had accepted below was the submission made by Mr Pitt-Payne for MBNA, and that was limited to the necessity for bad faith to be shown in the particular circumstances which had been alleged. The new points, he argued, were never the subject of any concession.
36. For my part, I think it plain that the way Mr Jones' case was conducted below amounted to a concession that he could not succeed on the claim for breach of the Implied Term without establishing bad faith. Indeed Mr Stuart is recorded as saying:

"I accept that we will not get home on stigma damages if we only show that they acted non-contractually, unreasonably. It has to be that they have acted in bad faith."

37. No doubt that was said in the context of the pleadings on behalf of Mr Jones, but that constituted the only way in which the case for Mr Jones on the Implied Term was being put. If it was not accepted that the case had to be put that high, that would have been stated both in the pleadings and in submissions.
38. It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken.
39. In my judgment it would not be right to allow the new points to be taken for the following reasons:

(1)The new points shift the focus of the issue of breach of the Implied Term from whether the dismissal was in bad faith, because MBNA wanted to replace Mr Jones with Mr Akin, to the reasonableness of MBNA's investigations. As Mr Reynold explained, Mr Jones' case now is that MBNA breached the Implied Term by making enquiries of Masons as to whether the claimed payment by Mr Jones had been made and by holding formal disciplinary hearings instead of making informal enquiries of Mr Jones. I am far from satisfied that the way MBNA conducted its case before the Recorder would not have altered had the way that the case has now been put by Mr Jones been adopted at the trial. Although Mr Pitt-Payne conceded before Buxton LJ that he had not been precluded by the case put below from investigating lines of enquiry relevant to the case as now put, the elucidation of Mr Jones' case by the amendment to the notice of appeal and the particulars to which I have referred only came after the hearing before Buxton LJ. Mr Jeans has pointed out that MBNA might well have wanted to call further evidence on the matters now raised, for example on the circumstances in which enquiries, such as those made by MBNA of Masons, are ordinarily made. Further, he has drawn attention to the regulatory restrictions under which, as is well-known, banks and others in the financial services industry operate. He said that MBNA might have wanted to put in evidence as to the effect such regulatory pressure had on MBNA, concerned as it would be that the senior officer in its Treasury should be above suspicion. In my judgment, this is a case where further evidence might have been adduced at the trial had the points now taken been taken then.

(2)The new way in which Mr Jones' case is now put requires further findings of fact to be made by this court on what are alleged to be wholly unreasonable actions by MBNA. Mr Reynold rightly did not suggest that we should now order the case to be remitted to the Recorder for further findings to be made by her. I do not accept that the new findings which we are asked to make flow inevitably from the findings made by the Recorder to which I have referred. I am far from persuaded that it would be appropriate for this court to make such further findings. They can only properly be made by the trial judge who has seen and heard the witnesses and can evaluate the evidence as a whole.

(3)It would be unfair to require MBNA, having been substantially successful in the county court, to face a new and significantly increased claim (last estimated at nearly £370,000) on points to be raised for the first time in this court when it cannot be said that the concession which was made was obviously wrong (we have not heard argument as to whether it was wrong) or attributable to inexperienced legal representatives and when there was no impediment to the points being taken then.

40. The offer as to costs made by Mr Reynold does not weigh heavily in the scales (Mr Jones is legally aided and if he recovered no damages, MBNA is likely to be unable to recover from him costs awarded to it) against the far weightier matters to which I have referred. In my judgment justice to MBNA requires that neither new point should be allowed to be taken. I would therefore dismiss the appeal.
41. I turn to the cross-appeal. Mr Jeans submitted that the Recorder erred in finding that MBNA had no reasonable grounds for its belief that Mr Jones was guilty of gross misconduct. He said that she fell into the error of judging the question by the impression which Mr Jones made as a witness at the trial, rather than by the correct test of whether at the relevant time in September 1995 MBNA had reasonable grounds to believe Mr Jones to be guilty of gross misconduct. Mr Jeans pointed out the Recorder's finding

(1) that MBNA had been told by Mr Jones on 5th September 1995 that he had sent a cheque by post to Masons at the weekend whilst he had been in South Wales,

(2) that the claim form with its reference to "paid but no receipt received to date" suggested that a receipt might have been expected even though Mr Jones' evidence to the court was that he expected the letter containing the cheque only to have been posted on the 4th September, the same day as the claim was submitted,

(3)that Mr Jones was claiming to have paid Masons even before an invoice had been received,

(4)that he did not explain at either disciplinary hearing why he did not await an invoice before paying and

(5)that at neither hearing had he given the explanation that he had relied on his mother to post the cheque.

42. Mr Jeans drew attention to the fact of Mr Jones' People Card being overdrawn and said that, in the light of the earlier warnings, that might reasonably suggest to MBNA that Mr Jones was not taking the warning seriously enough and that he had a tendency to live beyond his means. He submitted that it was reasonable for MBNA to believe that Mr Jones was trying to obtain a financial advantage in the form of an illegitimate float by telling lies. He criticised the Recorder for suggesting that it was for MBNA to ask to see Mr Jones' cheque stub, which, in any event, would not have helped Mr Jones as it showed a date of 4th September for the cheque to Masons, when Mr Jones had said that he wrote it on the 1st or 2nd September, and that it was for MBNA to enquire whether a first or second class stamp had been used for the letter containing the cheque, when Mr Jones might have been expected to provide such information himself to MBNA at the disciplinary hearings.
43. I do not think that Mr Jeans' criticism of the Recorder's approach is justified. She made a specific finding that at the time Mr Jones had a genuine belief in the account which he gave to MBNA. She asked herself the right question when considering whether MBNA at the time had reasonable grounds for thinking that Mr Jones was lying. When she looked at MBNA's reaction "in its fullest context" she had regard to matters known to MBNA at the time. In my judgment, whilst the points emphasised by Mr Jeans might perhaps have led another judge to take a different view of the facts, I find it impossible to see how this court could properly interfere with the conclusion reached by the Recorder on the facts. I have already cited the relevant passages in her judgment in which she set out the considerations to which she had regard in reaching that conclusion. I cannot say that it was not open to her so to conclude.
44. Accordingly, I would dismiss MBNA's cross-appeal.
45. LORD JUSTICE MAY: I agree with Peter Gibson LJ that, for the reasons he has given, Mr Jones' application to amend his notice of appeal should be refused. The practical consequence of this is that the appeal itself fails and should be dismissed. I also agree that the cross-appeal should be dismissed. I gratefully adopt the account of the facts and the circumstances of this litigation which Peter Gibson LJ has given.
46. The main issues which the Recorder had to decide were:

(1) Whether Mr Jones' contractual notice period was six or three months, as he contended, or two weeks as the bank contended. The Recorder found that it was two weeks and there is no challenge to this finding.

(2) Whether Mr Jones had lied when he said that he had posted the cheque for the second part of the removal expenses. The Recorder found that he had not, and that, on the contrary, he honestly believed what he told those who were interviewing him.

(3) Whether the bank were entitled to dismiss Mr Jones without notice. This depended on whether they had reasonable grounds to believe that he was guilty of gross misconduct or gross negligence. The Recorder found that they did not have reasonable grounds so to believe. By their cross-appeal, the bank invited this court to reverse this finding, but, as I have said, I agree with Peter Gibson LJ that the cross-appeal fails. It follows, as the Recorder held, that Mr Jones' dismissal without notice was in breach of contract. On the finding that his contractual notice period was two weeks, the damages for this breach were the modest amount of £1,260.68, to which the Recorder added £316.93 for interest.

(4) Whether the bank had, in dismissing Mr Jones, acted in bad faith. This depended on whether they had trumped up reasons for dismissing him with the ulterior motive of replacing him as Money Markets Manager by Mr Akin to whom they had previously offered the post. The Recorder held that the bank had not acted in bad faith and there is no challenge to this finding. It was on this ground alone that it was contended on behalf of Mr Jones before the Recorder that he would be entitled to damages, which were then quantified in excess of £250,000, for breach of an implied term of his contract of employment that the bank would not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between the bank and Mr Jones - I shall refer to this as "the confidence and trust implied term". Since this was the only way in which this part of the case was advanced, the Recorder's judgment properly addressed, and only addressed, the issue whether the bank had acted in bad faith.

47. The basis of appeal which the proposed amended notice of appeal seeks to advance is, as Mr Reynold QC fully accepts, one which was simply not advanced before the Recorder. The proposed case is that the manner in which the bank came to dismiss Mr Jones was such as to be a breach of the confidence and trust implied term. It is not suggested that the mere fact of wrongful dismissal constituted a breach of the implied term. The particulars of the proposed case are that, if this case had been made before the Recorder, she would have been invited to find, and would have found, that the bank acted unreasonably in:

(i) not accepting the documents which Mr Jones submitted for his expenses' claim at face value but instead in making further inquiries from the removal firm;

(ii) questioning his honesty and integrity in the context of his expenses claim; ad

(iii) holding two disciplinary hearings to consider whether or not the expenses claim was genuine.

48. If this court were persuaded to allow Mr Jones to advance an appeal on this basis, and if, further, we were persuaded that these were facts which this court could properly find, there would then be contentious questions of fact and law whether there was a breach of the confidence and trust implied term entitling Mr Jones to damages.
49. It is submitted by Mr Reynold QC that these questions of fact and their legal consequences can properly and justly be considered and decided by this court upon the findings of fact made by the Recorder and without the need for further evidence. The facts were explored in evidence in the context of the wrongful dismissal issue and, it is suggested, the new issue concerns essentially the same facts, or inferences which this court is as able to draw as the Recorder would have been, if the case had been advanced before her in this way. Mr Jeans QC submits on behalf of the bank that Mr Jones should not be allowed to advance this new case for the first time in the Court of Appeal. In my judgment, the reasons advanced by Mr Jeans in opposition of Mr Jones' application are sound and convincing reasons why the application should be refused.
50. I express briefly in my own words my essential reasons for concluding that Mr Jones should not be allowed to advance this new case for the first time in the Court of Appeal.
51. If, as in the present case, a claim is presented at trial on the basis that it should succeed if bad faith is established, but will not succeed if it is not, it might be said that that was a forensic concession that the only basis on which the claim might succeed was if bad faith was established. We may then debate whether Mr Jones should be permitted to withdraw the concession. But I am inclined to think that this is really a case to which wider principles apply.
52. Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed. But in my view this is not such a case.
53. In addition, I am persuaded by Mr Jeans' submissions that the Recorder's finding in relation to the wrongful dismissal claim cannot with justice to the defendant simply be transposed without more to the new version of the claim for breach of the confidence and trust implied term; that this court could not with justice make for the first time necessary primary and inferential findings of fact which the Recorder was not asked to make; that this is in particular so when this court has not seen or heard the witnesses as they gave their evidence, and where the factual case advanced on paper is not, as I think, obviously correct intrinsically; that the bank may well have wanted to call additional evidence if the proposed new case had been advanced before the Recorder; and that the focus of the proposed new case of breach of the confidence and trust implied term is substantially different from the focus of the case which the Recorder decided. These are in my view cumulatively very powerful reasons why this court should not entertain Mr Jones' proposed new case for the first time on appeal and why, if this is necessary, we should not permit him to withdraw any concession implicit in the way in which he presented his case before the Recorder.
54. LADY JUSTICE HALE: I agree.
Order: Appeal and cross-appeal dismissed. The respondent to have 75% of its costs. It is just and equitable to make a section 18 costs order. Appellant's costs assessed at nil. Legal aid assessment of appellant's costs. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)