England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Thursday, 1st February 2001

1. LORD JUSTICE SEDLEY: This is an application for permission to bring a second appeal. Consequently, by virtue of Section 55 of the Access to Justice Act 1999, it can only be granted if it raises an important point of principle or practice or discloses some other compelling reason. This is so both under the Act and under the Civil Procedure Rules without regard to the fact that the decision in question - that of Mr Walter Aylen QC, sitting as a Deputy Judge of the High Court - overset in very fully reasoned terms an equally fully reasoned decision to the contrary of Master Murray. That bare fact, in my judgment, cannot bring the case, if it does not otherwise come, within the other compelling reasons category. Nor can it add weight to other grounds if other grounds exist within the rule. Such other grounds may be illustrated by the fact that the judge and the master differed, but if there is some other compelling reason it will be intrinsic to the decision and not a function of disagreements below. This disposes of Mr Hamilton's alternative ground advanced before us today.
2. The action for present purposes is in negligence based upon the doctrine enunciated by the House of Lords in Spring v Guardian Assurance [1995] 2 AC 296 that an employer may owe his employee or ex-employee a duty of care in composing a reference for him. The intended respondent - who from 1987 had worked for the applicant company as a financial advisor and later as a branch manager - got himself into difficulties about, among other things, possibly unauthorised acts performed by him and was dismissed summarily in June 1990. A police investigation into an unconnected matter, but touching Mr Singh to the extent that he was arrested, resulted in no charges being brought.
3. Mr Singh meanwhile had obtained another job. Under the LAUTRO rules the applicant was obliged, in relation to such employment, to furnish Mr Singh with a reference and in doing so to "make full and frank disclosure of all relevant matters which are believed to be true". The reasons for this are too obvious to need stating, but the obligation involves careful regard both to the interests of the public and to the interests of the employee. The references which were in the event given by the applicant are set out in paragraph 9.10 of Mr Aylen's judgment. They cover about ten pages. It is sufficient to say that in his view they left (these are my words, not his) a cloud of doubt hanging over Mr Singh because of the police investigation, when Mr Singh says he was entitled to be cleared of suspicion.
4. He brought proceedings against his former employers in which Master Murray gave him summary judgment for unpaid commission and an account of other monies due but struck out his negligence claim, giving him leave to serve a fresh statement of case on the Spring v Guardian Assurance issue. The Master eventually struck out this fresh pleading after a three-day hearing, giving a very full judgment. On appeal, Mr Walter Aylen QC - in a judgment almost as long - took the view that even though his was more a review than an appellate function, Master Murray's judgment could not stand.
5. Today, in a most attractively presented submission, Mr Hamilton has had to explain his case for permission to appeal by taking us on a brief excursion into detailed and, in two important respects, contentious facts. This notwithstanding, the essential point for our present purpose is very simple. The judge upheld Mr Singh's pleading as tenable on the footing that before providing a reference the applicant's duty of care required it to look into the matters to which the reference related and that Mr Singh was able to argue that on the facts the applicant had failed to do so. The judge did not decide and was not required to decide how much investigation was called for or whether there had, in truth, been a shortcoming on the duty of care. All of that is for trial. In my judgment, this is exactly the kind of assessment which the trial judge is there to make. The duty is known to exist in law. Logically, it requires the former employer to think about what is going to go into the reference and never more so than when the employee and the public have much to lose by a mis-statement. Whether the facts asserted are capable of establishing a breach of duty is often, as undoubtedly here, a matter of experience and impression. The judge's impression, experienced as he is, may turn out to be wrong, or to be right but still insufficient to get the claimant home. It is only at trial and not on appeal that this can be ascertained.
6. The nearest Mr Hamilton has come to extracting a point of principle from the case so far is in relation to the logical approach to the duty of care. He founds upon the formulation accepted by the judge that the questions for the applicant should have taken the form "What information did you have and when did you have it? What investigations did you conduct? And what is their source, and why did you, the employer, consider what you said proper?" What the employer had said is encapsulated in a passage of the first reference which reads:

" ..... we are at present unable to give a fit and proper reference to Mr Singh ..... " explaining that he was still under investigation. There is evidence on Mr Singh's behalf that that is rather like a banker's reference, a coded way of saying "Do not touch this employee."

7. Mr Hamilton, in a supplementary skeleton, has submitted:

"The question of a duty of care arises only after the claimant has established the fact that the references were in some material respect incorrect or unfair. Until a material inaccuracy or unfairness is proved, there is no case to answer."

8. It seems to me that, even if one goes no further, that proposition is untenable. The question of the existence of a duty of care is one that is answered by the reference to the relationship. It is to the question of whether there has been a breach that the inaccuracy or unfairness of the reference will relate, and that is precisely how Mr Walter Aylen QC approached the matter in his judgment.
9. It seems to me that to try to elevate this isue or any of the other issues that Mr Hamilton has touched on into grounds for a second appeal, on which the entire case would have to be argued out on the assumptions most favourable to the respondent, rather than to get on to a final trial on the real merits, is an expensive and pointless way to go. I have to say that I adhere, even after having heard Mr Hamilton's persuasive advocacy, to the view I expressed when I first saw the application on the documents, which is that this case is if anything a paradigm case for not granting permission to appeal but for getting on to trial and sorting out the real issues there. If the trial goes against the applicant, and an issue of law arises from it that deserves this court's attention, that will be the time to come to us. For my part,
10. I would refuse permission to appeal.
11. LORD JUSTICE JONATHAN PARKER: I agree.
Order: Application refused