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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Puplampu v Pathfinder Mental Health Service NHS Trust [2002] EWCA Civ 1243 (13 August 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1243.html
Cite as: [2002] EWCA Civ 1243
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand London WC2 Tuesday 13th August, 2002 |
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B e f o r e :
LORD JUSTICE KEENE
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| NICHOLAS PUPLAMPU | Appellant/Applicant | |
| - v - | ||
| PATHFINDER MENTAL HEALTH SERVICE NHS TRUST | Respondent |
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of Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7404 1400
Official Shorthand Writers to the Court)
THE RESPONDENT did not appear and was not represented
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Crown Copyright ©
- LORD JUSTICE SEDLEY: This application for permission to appeal comes before the court in circumstances which can be found set out in the short judgment which I gave on 25th February 2002 when the matter first came before the court. On that occasion I was troubled by the possibility that there might be an arguable case which neither Mr Puplampu as a layman nor his then representative, able though he was, was in a position to articulate.
- The adjournment which I therefore gave, with encouragement to Mr Puplampu to seek the help of the Bar Pro Bono Unit, has borne fruit. Before us today Mr Goodison, who has handsomely volunteered his services, has advanced a skeleton argument and oral argument in support which in my view justify the grant of permission to appeal.
- I will not set out -- because they are already set out in the previous judgment and the skeleton argument -- the background facts. I do not say that this is an open-and-shut case by any means, and Mr Goodison recognises that it is not. But it is, it seems to me, a case which raises a point which is both arguable and in any event one of quite considerable general importance. The question is: what is the reach in law of the ostensible authority of a representative such as Direct Legal Ltd in the settlement of Employment Tribunal proceedings? I put it in that way because such proceedings and settlements are common and of great importance every year to a large number of people and of employing organisations. It is, however, a question that does not necessarily engage the larger philosophy of ostensible authority.
- What seems to me to make the question viable and capable of determination in Mr Puplampu's favour is in essence that the form IT1 which was completed by Direct Legal for him, although couched in terms which make it quite clear that it is addressed to and by the applicant himself, is not signed by the applicant but is signed by Direct Legal. That may not be conclusive, but it is a start. It ties in with the careful judgment of the Industrial Tribunal, approved by the Employment Appeal Tribunal under Wood J's presidency in Freeman v Sovereign Chicken Ltd [1991] ICR 853, in particular at pages 861 and 863. What is counselled in that case is caution where the settling representative is neither a solicitor nor a Citizens' Advice Bureau. One can see illustrated in the facts of the present case quite vividly why the distinction may matter. In the present case Direct Legal were on the point of being wound up by petition of the Secretary of State on the ground that their activities were contrary to the public interest. The particular invasion of the public interest was that their terms of dealing with their customers placed the company's interests in not only direct conflict with but in a superior position to the client's interests. This case and its settlement might be thought to be a classic example of the conflict working itself out.
- Pathfinder NHS Trust were, on any view, an innocent party in all this. They no doubt leapt at the settlement which was offered because it completely circumvented the reinstatement which the IT1 was claiming and offered them a way out at a very low price. Nobody, however, can blame them for that.
- The real question is whether either they or ACAS, through whom the deal was mediated, ought to have insisted that the settlement have the direct agreement of Mr Puplampu himself in the circumstances which I have outlined. It seems to me arguable that as a matter of law this should have been so, and that in these circumstances ostensible authority may be argued not to extend to the completion of a settlement, at least a settlement such as the present one, absent the client's express authority. It is a difficult situation because of the position of an innocent party, but it seems to me to be not unarguable and to raise quite serious questions of legal and public policy.
- For those reasons I for my part would give permission to appeal. I wish, however, to add two things. Firstly, unlike the jurisdictions below, this not a cost-free jurisdiction. The ordinary rule, as Mr Puplampu needs to know, is that the loser pays the winner's costs. For him, if he does lose the appeal, this may represent a very significant financial burden indeed. He needs to consider that.
- Secondly, it seems to me that the underlying issue in the context of the legal problems which I have touched upon is one which is capable of resolution by alternative means. The court's ADR services are available to parties in pending appeals and I would make those services available in this case in the hope that it may be possible to find at least a formula which will enable the matter to be resolved in a way which does not unduly injure either party's interests.
- On that footing I would give permission to appeal.
- LORD JUSTICE KEENE: I agree that there are arguable grounds here for an appeal as my Lord has described, although it should be recognised that the appellant will have considerable obstacles to overcome in respect of ostensible authority. Although the IT1 form was not signed by Mr Puplampu himself, the detailed information contained in the rest of the form may well be thought to indicate to the other party that Direct Legal was instructed by Mr Puplampu, who was therefore holding them out as his representative for the proceedings.
- As to whether any ostensible authority which they possessed as such a representative extended to the power to settle the proceedings, I entirely accept that Direct Legal were not to be seen as a solicitor or the Citizens' Advice Bureau. On the other hand, they may potentially not be equated with a one-off lay representative, such as a personal friend of an applicant, but rather to be seen as a body established, as they were, to provide such services on a regular basis. They would be known in the industry to be doing so regularly; and, in short, Direct Legal might be regarded as a professional representative who might be held therefore to have had similar authority to a solicitor or the Citizens' Advice Bureau which authority would normally encompass the power to settle proceedings.
- So I do urge caution. This will not be an easy appeal and I, too, would emphasise the value to the parties of using ADR. Nonetheless, as I have indicated, I concur with my Lord in granting permission to appeal.