England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE ELIAS)

		Royal Courts of Justice Strand London WC2 Thursday, 29th November 2001

Thursday, 29th November 2001

1. LORD JUSTICE CLARKE: This would be a second appeal. It is an application for permission to appeal against the order dated 23rd August 2001 made by Elias J. By that order the judge dismissed Mr Hancock's appeal against an order of Master Foster, dated 10th October 2000, when he awarded Doncaster Council costs of £1,700. By his order Master Foster struck out Mr Hancock's counterclaim and set aside Mr Hancock's default judgment on the counterclaim. An appellant's notice was filed and sealed on 6th September 2001; so this application is made in time. He has also filed a skeleton argument together with an annex, and indeed he has filed a series of bundles which I have found it really quite easy to follow, and I am grateful to him for that.
2. The background facts are that the applicant was employed by the Council between 1984 and 1995; in later years in its education department. On 21st September 1995 at a time when the applicant had been off work for some time as a result of depression and anxiety the Council gave him notice to terminate his employment on 15th December 1995 on the grounds of redundancy. On that day the Council made a redundancy payment to him of £24,231.98. Also on 15th December after the payment had been received into his bank Mr Hancock asked to be treated as having retired on grounds of ill-health. This would cause him to receive a higher lump sum payment than would dismissal on the grounds of redundancy, together with an accelerated payment of pension. The Council replied that they would consider the request, although they pointed out that the approval of the request might remove his entitlement to the redundancy payment and might necessitate its recovery.
3. The request was approved on 25th January 1996 and the Council suggested that Mr Hancock agree to the deduction of the payment already made from the higher payment to which he was now entitled. Mr Hancock did not reply to that or some later letters, but however that may be, the pensions authority paid him his ill-health retirement entitlements in full on 15th March 1996. The Council thereafter demanded repayment of the £24,234.98 and issued proceedings on 21st March 1996.
4. Mr Hancock has unfortunately been unwell over the years. He has been suffering from some mental illness, and I am sorry to say that he has told me this morning that he is still not a well person. He has stressed, however, that he never wanted either to be made redundant or to retire on the grounds of ill-health, and that he has always wanted to work in the public service, as he did for many years and as he would like to in the future once his health permits. It is clear from what he has said this morning that he has had some concerns about some of the legal processes which have taken place including, in particular, the granting of a Mareva injunction and indeed some expressions of opinion by Master Foster in the course of his judgment.
5. This application has a long procedural history. In outline it is to this effect. As I have indicated, the Council issued its writ on 21st March 1996. On the same day the Council obtained a Mareva injunction against Mr Hancock which was discharged on 18th April 1996 by Longmore J. I note that in giving judgment Longmore J said that there could be no question of any evidence that Mr Hancock would act in any way dishonourably. I should also add this. Mr Hancock inferred from something that Longmore J said that there would be a trial of the action.
6. In the course of his judgment Longmore J referred to the fact that the Council said that its case was that Mr Hancock could not be entitled to keep both the redundancy payment and the ill-health retirement payment. The judge added:

"If the matter is as clear as the plaintiff says it is, no doubt the trial can come on very quickly and will not take very long."

7. I interpose to say that Longmore J cannot there have been precluding the defendant's right to apply for a summary determination of the issues if such an application was appropriate under the rules. But it seems to me that after Longmore J's decision there could be no question of anybody thinking that Mr Hancock had acted in any way dishonourably simply because a Mareva injunction had previously been granted.
8. In April 1996 Mr Hancock submitted a defence and counterclaim. By the counterclaim he claimed £44,787.70. On 25th July the Council obtained summary judgment on its claim from Master Foster. Ian Kennedy J dismissed Mr Hancock's appeal against that decision on 19th June 1997. Neither judgment dealt with or indeed referred to the counterclaim. Mr Hancock entered judgment in default of defence to his counterclaim on 3rd December 1998 but he did not serve the judgment at that time. There were also a number of industrial tribunal hearings with which I am not concerned. Following a number of costs hearings and the issue of a statutory demand by the Council the Council applied to Master Foster on 10th October 2000 to strike out the counterclaim. It emerged at that hearing that he had entered judgment on the counterclaim. Master Foster set aside the judgment and struck out the counterclaim. As I have indicated Elias J dismissed Mr Hancock's appeal against that decision on 23rd August 2001. It is against that order that Mr Hancock seeks permission to appeal.
9. Mr Hancock's counterclaim appears to have been for (1) £10,277.86, being the amount by which he alleged the redundancy payment was underpaid; and (2) £34,509.84, which was interpreted by the Council in an affidavit of 13th May 1996 as being the redundancy payment already made of £24,231.98 plus the underpayment of £10,277.86 mentioned above. Given the matching figures, that may be right although it does not fit with the total of the counterclaim, namely £44,787.70, which would mean counting the underpayment twice. The counterclaim also alleged that the ill-health compensation was unpaid, although it was the Council's case that it was paid. In any event the counterclaim was in the total sum which I have indicated. The default judgment, however, was for £54,561.88.
10. Elias J observed in the course of his judgment that, although Ian Kennedy J did not mention the counterclaim, the substance of the counterclaim was that Mr Hancock was entitled to keep the redundancy payment, the return of which the Council was claiming. Ian Kennedy J decided that no payment was due by way of redundancy. This was because Mr Hancock left office on 15th December 1995 not on grounds of redundancy, but by reason of a last-minute resignation on grounds of ill-health. Elias J treated this as decisive of the counterclaim. He said this in paragraphs 9 to 11 of his judgment.

"9. The question I have to consider is whether there is any matter which is raised in the counterclaim which has not, in effect, been disposed of by the decision of Mr Justice Kennedy. I say in effect because, as I have already indicated, there was no express reference to the counterclaim. The counterclaim was to the effect that Mr Hancock was entitled to retain the redundancy payment he received; indeed it claims that his redundancy payment had not been calculated on the correct basis but on the basis that his pensionable pay was lower than in fact it should have been. However, he accepts that the substance of the case, whatever the amount of the redundancy payment concerned, is that he was entitled to have his redundancy compensation, or compensation for loss of office to put it rather more broadly, as well as his payments relating to the ill-health retirement.

10. He submitted that before Master Foster and then Mr Justice Kennedy; the only question had been whether he had been made redundant on the 15th December 1995. He says before me that there were another two arguments which he advances and which were not considered by either Master Foster or Mr Justice Kennedy. The first was that his original office had come to an end on the 1st October 1995 and that although he had remained in employment thereafter, nonetheless his entitlement to compensation for loss of office was triggered at that time. The second was that in any event even though he fell within the provision of ill-health retirement and received compensation in accordance with regulation D7 of the Local Government Pension Scheme Regulations 1995, that that did not preclude him at one and the same time also being treated as having his employment terminated by reason of redundancy or otherwise for the more efficient operation of the Council's functions.

11. In my judgment neither of these arguments can properly be advanced in the light of the determination of Mr Justice Kennedy. As I have already indicated, he made a finding in terms that no redundancy money was payable under the regulations, whether under the statutory scheme or under the regulatory scheme applicable in this case. I should add that I have, in addition, given specific consideration to the particular two arguments that have been made by Mr Hancock before me. Plainly those are matters which should have been urged before Mr Justice Kennedy in any event; that would have been the appropriate time to have made them. Be that as it may, I to understand Mr Hancock is a litigant in person and it is not always easy for arguments to be taken at the right time, but I should add that I have no doubt at all that both these arguments would fail and that it would be doing no kindness at all to Mr Hancock in any event to overturn the decision of Master Foster in this case."

11. Importantly, as it seems to me, the judge added this:

"12. It seems to me quite plain that the structure of these regulations is specifically not to allow both compensation for loss of office and compensation by reason of ill-health to run together. It would be rather extraordinary, it seems to me, if the effect were that they could be and I am satisfied that it is not. As I have said, in any event it seems to me this matter has already been determined by the judgment of Mr Justice Kennedy and there was an application to obtain leave to appeal to the Court of Appeal from the Judge and that was refused, and his judgment was taken no further."

12. Before the part of the judgment which I have just quoted the judge said in relation to a suggestion by Master Foster that something that Mr Hancock had said was not true:

"Mr Hancock has said before me, and I accept, that there was certainly no intention to mislead the court in any way and that he had tried at all times to tell the truth to the courts. If and in so far as he may have understood that there was any implication to the contrary, I should perhaps say that I am satisfied that he has sought to tell the truth to the courts, and I am sure he has done that before me today."

13. When that passage is read together with the passage in the judgment of Longmore J which I referred to earlier, I do not think that Mr Hancock can sensibly fear that anything said by the judges in these cases casts any doubt on his honesty or integrity.
14. Mr Hancock has included in the papers lengthy submissions in support of proposed grounds of appeal, and he has put his case very succinctly this morning. In short, he submits: 1. The process has been unfair: (a) the initial Mareva raised allegations of turpitude against him which have coloured subsequent hearings; (b) he has never had a fair and public trial with oral evidence in breach of Article 6 of the European Convention on Human Rights; and (c) all hearings have been too short the investigate the merits properly. 2. Having regard to what Longmore J said, namely that the case should go to trial, it should not have gone to summary judgment. 3. It is clear that neither Master Foster nor Ian Kennedy J dealt with the counterclaim. 4. Ian Kennedy J dealt only with the redundancy occurring on 15th December and it did not resolve the issue relating to redundancy occurring on 1st October 1995. 5. Neither Ian Kennedy nor Elias JJ dealt with changes in the regulations. 6. For the Council to require Mr Hancock to give up his redundancy payment in return for giving him the ill-health payment would amount to him properly influencing the decision of a public authority and would be contrary to the Prevention of Corruption Acts. 7. Mr Hancock acted properly in entering his default judgment and it is a breach of Article 1 of the first protocol on the European Convention on Human Rights to deprive him of it.
15. I shall say a word about each of those, albeit briefly.
1. Procedural unfairness
16. (a) The Mareva injunction should probably not have been granted; but it was set aside, and to my mind there is no question of it having influenced later decisions; (b) The suggestion that summary judgment in general offends Article 6 of the Convention was answered by Lord Woolf of in Kent v Griffiths [2000] 2 WLR 1158, where he said:

"It would be wrong for the Osmond decision to be taken as a signal that, even when the legal position is clear and an investigation of the facts would provide no assistance, the courts, should be reluctant to dismiss cases which have no real prospect of success. Courts are now encouraged, where an issue or issues can be identified which will resolve or help to resolve litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve expedition and save expense. There is no question of any contravention of article 6... in so doing."

17. Mr Hancock complains that the summary judgment hearings were in private, as indeed they were. But they took place before the Human Rights Act came into force. Such hearings are now in public under CPR 39.2. (c) The merits were to my mind sufficiently considered. In each case Mr Hancock produced detailed submissions and it is plain to me that Elias J considered the whole matter with considerable care.
2. Complaints about order 14
18. I have already referred to Longmore J's observation that in due course the issues would have to be determined at a trial but, as I have indicated, that observation did not guarantee Mr Hancock a full trial or preclude an application for summary judgment. In my view such an application was appropriate in this case.
3. Not dealing with the counterclaim
19. It is true that neither Master Foster nor Ian Kennedy J on the order 14 application dealt expressly with the counterclaim. But, as Elias J correctly observed, by his counterclaim Mr Hancock claimed the redundancy payment which the Council was seeking to recover. Both judgments concluded that the Council was entitled to recover the payment. There is no doubt that both Master Foster and Ian Kennedy J would have dismissed the counterclaim if the Council had brought it to their attention.
4. Redundancy occurring on 1st October 1995
20. Ian Kennedy J did not resolve this argument because it was not raised before him. His reasoning was that Mr Hancock resigned at the last moment and therefore was not made redundant on 15th December 1995; so no redundancy money was payable. That would not have decided this issue. If the argument were correct Mr Hancock would have ceased his employment by reason of redundancy on 1st October before he resigned on 15th December. Whether or not Elias J was correct in saying that this argument was decided by Ian Kennedy J, he himself decided the issue on the basis that the structure of the regulations is, as he put it, "specifically not to allow both forms of compensation to run together." Accordingly, if Mr Hancock received the ill-health compensation he could not also receive redundancy compensation, whatever the date of cessation of his employment. That conclusion was to my mind plainly correct.
21. In any event Mr Hancock's argument fails because of the fact that his employment clearly ended on 15th December 1995, not 1st October. Mr Hancock argues that his job was abolished on 1st October and after that he was in supernumerary employment, though he was off sick and not actually working during that period. But he certainly consented to that and therefore it was dismissed or would have been dismissed had he not resigned from the Council's employment on 15th December and not 1st October.
5. Changes in the Regulations
22. The changes introduced by the Local Government Compensation for Redundancy Amendment Regulations 1996, which were retrospective to 28th December 1994, seem wholly irrelevant to the issues.
6. Prevention of Corruption Acts
23. The point taken by Mr Hancock assumes that he was entitled to both benefits which, for the reasons given earlier by Elias J, was not the case.
7. Article 1 of the First Protocol
24. Mr Hancock clearly feels that he acted entirely properly in entering judgment and that it was the Council that was at fault in not filing a defence to the counterclaim.
25. I entirely see the force of that. Mr Hancock was entitled to enter judgment on the counterclaim and I do not think that his doing so was in any way acting dishonourably. However, the right to enter the judgment in default of a defence is not an absolute right, but merely a procedural step permitted by the rules which may be set aside by the court in accordance with the rules where the justice of the case requires it. In this case it was so set aside and, in my judgment, properly so.
8. Conclusion
26. This would be a second appeal. In order to persuade the court to grant permission to appeal Mr Hancock would have to show that his appeal would raise an important point of principle or practice or that there was some other compelling reason why the appeal should be heard. I regret to say that he can do neither. An appeal has no real prospect of success in relation to the points which he advances. It does not raise any important point of principle or practice, nor is there any other compelling reason why an appeal should be heard.
27. It follows that permission to appeal must be refused. I should just add that to grant permission to appeal would bring Mr Hancock no advantage. Any such appeal would fail, exposing him to a liability for costs.
(Application refused; no order for costs).