England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CARDIFF COUNTY COURT
(His Honour Judge W Gaskell)

		Royal Courts of Justice Strand London WC2 Friday, 30th November 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal made by Mr Mark Griffiths from the judgment of His Honour Judge Gaskell given on 24th July 2001. In his proceedings Mr Griffiths was suing the Newport County Borough Council in negligence on the ground that it had provided to prospective new employers with whom Mr Griffiths was seeking employment a negligent, misleading and unfair reference. He had originally, I think, pleaded his claim both in negligence and in defamation, but ultimately he agreed before the judge that his case should proceed on the basis of negligence alone. One of his grounds of appeal is that the Council had failed to provide particulars of fair comment pursuant to CPR Part 53 (which is, of course, the procedural code relating to defamation actions), but he recognises before me that that becomes irrelevant once his claim in defamation is no longer in issue.
2. In his judgment the judge described Mr Griffiths as an "academically talented young man" who, unfortunately, has been out of work for some ten years now, since he left his employment with the Council in May 1991. It was he who in fact resigned from his employment. He had sought previously, in January 1991, to resign, but he had been persuaded to withdraw that resignation by his line manager. Ultimately, however, he did leave four months later. Since then he has been seeking further employment in social work, that being the nature of the work that he had performed with the Council, where he was in particular concerned with child care matters. He has a degree in economics and social studies from Manchester, which he obtained in 1995, and other qualifications. The judge pointed out what I think is not in dispute: that child care work requires special qualities and abilities and that in the context of such work a reference needs to be meaningful and cannot simply be bland.
3. The reference from the Council which Mr Griffiths sought to categorise as "negligent and unfair" was a detailed one, dealing both with Mr Griffiths' weaknesses as well as his good points. But at his trial, as the judge pointed out, Mr Griffiths was not able to put forward any reason in his relationship with the Council as to why the author of the reference, or those whom that author had consulted for the purpose of preparing that reference, should have given an inaccurate or unfair one. Mr Griffiths relied before the judge, as he was entitled to, on his previous excellent references and contrasted those with the reference from the Council. When resigning from his employment, Mr Griffiths gave as his reason that he did so in part because he found child care work very demanding and draining, although he has subsequently submitted that he was constructively dismissed.
4. The judge pointed out in his judgment that Mr Griffiths had, in effect, let himself down somewhat by a letter written by him in December 1991 in answer to an offer made to him by his line manager, Mr Banfield, to come to the Council to discuss his reference with them. This was a letter which the judge had to describe in uncomplimentary terms and which in his evidence Mr Griffiths was unable to explain, save by saying, in effect, as he has said again to me, that he is now older and wiser. Mr Griffiths has also submitted that his real reason for failing to take up the offer of that meeting was that it was only made to him on the basis that the reference given, or to be given, by the Council would remain confidential, whereas he was only prepared to attend a meeting, he tells me, on the basis that the Council would discuss an open reference or at any rate be prepared to show him its confidential reference. Nevertheless, that was, in the view of the judge (and, I have to say, of myself), a helpful offer made to him, which would have enabled Mr Griffiths to engage with the Council (and, in particular, with Mr Banfield, who made the offer) in a discussion about his possible strengths or weaknesses. He lost that opportunity by his refusal and, indeed, by the terms of the letter in which his refusal was communicated.
5. Even so, as the judge pointed out, the Council made it clear to Mr Griffiths that he might wish to obtain references from sources other than itself because its reference might turn out to be counter-productive. The Council also made it clear that, at any rate where he might seek employment outside social work, it would be willing to provide a less detailed reference. That did in fact happen in at least one case referred to by the judge, which was in connection with Mr Griffiths seeking employment with a firm called Pimlico Furniture. In that instance a reference was provided by the Council limited to Mr Griffiths' honesty, health and punctuality, which was, albeit in those limited terms, a wholly good reference.
6. The judge referred to the witnesses who appeared before him: Mr Griffiths himself and, on the part of the Council, in particular, Mrs Jones, who was his immediate supervisor; his line manager, Mr Banfield; and the senior officer in the department, Mr Waters, who was the person who had actually prepared the reference. He described both Mrs Jones and Mr Banfield as excellent witnesses, who were obviously sympathetic to Mr Griffiths. The judge described Mr Waters as someone who had not had daily contact with Mr Griffiths and who was therefore able to take an objective view. He described all the witnesses as "impressive".
7. The judge concluded his judgment with these passages. He said (at p.26F):

"Having taken that evidence into account and weighed it up against the claimant's evidence, taking into account the way he has set out his position in correspondence and all the facts in this case, I have come to a very clear view that this action fails on the basis that the observations set out in the references are factually accurate and a fair observation, with the one exception of the error that he was described as working in the Mental Handicapped Division as opposed to the Mental Health Division. That clearly is an error, but I cannot think that that would cause anyone to refuse a post to someone they were minded to employ."

8. Then he said (at p.28D):

"I find that on the evidence before me, the defendants were not negligent in the representations that were made in the reference, and that those representations did reflect a genuine and accurate reflection of their opinion of his capabilities. So the action fails."

9. In his application to this court Mr Griffiths has pointed to no error of law or principle on the part of the judge. The judge fully accepted that in principle a claim in negligence for an inaccurate, misleading or unfair reference is a good cause of action in law. Instead, what Mr Griffiths seeks to say is that the judge was wrong in his judgment as to the fairness and accuracy of the reference in the light of the oral evidence that he heard from the witnesses concerning Mr Griffiths' performance while employed by the Council. It seems to me, however, that the judge has written a careful and sympathetic judgment which takes account of all the evidence and material before him and of the arguments in the case. It is the judge who has heard the witnesses. No appeal court could have that advantage. In my view there could on appeal be no real prospect of success, because the Court of Appeal would, in effect, find it extremely difficult to differ from the judge's account and assessment of the evidence that he had heard and I see no reason for thinking that it would. In saying that, I have, of course, taken account of all the submissions made to me by Mr Griffiths, both in the papers before me and in his oral submissions today.
10. There are some other points raised by Mr Griffiths, apart from the essential merits of the case. He submits that there was a breach of Article 5 of the ECHR, which says that everyone has a right to liberty and security of person. He submits that in effect the security of his work and prospects of employment have been taken away from him. For my part, I do not think that that is what Article 5 is concerned with; but even if it were, there could be no breach of Article 5 unless there had been some negligence or unfairness on the part of the Council.
11. Mr Griffiths also complains that there was procedural fault, in that the Council answered certain requests for further information late (on 6th December 2000) and inadequately. So far as its lateness is concerned, that was still some seven months before trial. So far as its inadequacy is concerned, it is perfectly true that that response states that Mr Waters, for instance, was unable to identify the names of specific clients or agencies which he had referred to in his witness statement and to that extent his evidence would not have had any particular force; but that was, of course, all part of the material before the judge.
12. Mr Griffiths submitted that the judge was more preoccupied by the Council's duty of care to Mr Griffiths during his employment than with its duty of care in connection with the reference given after his employment had ceased. However, it seems to me that that is not a fair criticism of the judge's judgment.
13. In written material before me Mr Griffiths has also complained of minor factual errors made in the judge's judgment, but he has not in particular stressed them today. It seems to me that those minor inaccuracies do not in any way enter into the substance of his judgment, which was against Mr Griffiths.
14. Mr Griffiths has made his submissions before me (as, indeed, the judge made the point in his judgment that he had made his submissions before him) with politeness and efficiency and even, I might say, with eloquence and obvious sincerity, which have impressed me. Nevertheless, the test that I have to bear in mind if I am to give permission to appeal is that there is a real prospect of success upon appeal or some other compelling reason why permission should be given. For the reasons which I have sought to give in this judgment, I am unable to say that Mr Griffiths has met that test. I am obviously concerned and personally sad that Mr Griffiths has been unable to find employment in the ten years since he left the Council's employment and I wish him personal luck and success for the future. But I am sorry to say that he has failed to make a case before me that he ought to be given permission to appeal.
Order: application for permission to appeal dismissed.