England and Wales High Court (Queen's Bench Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
Queen's Bench Division

		Royal Courts of Justice
		05 March 1976

Phillips, J.:

1. These are two appeals by the Bentley Engineering Company Ltd. (heard together by consent) from decisions of industrial tribunals, sitting in Nottingham. There are two respondents, Mr. D. Crown and Mr. S. M. Miller, each of whose claim for a redundancy payment was upheld by the tribunals. Their cases were part of a much larger episode of litigation and all the other cases were decided by industrial tribunals under the same chairmanship as the industrial tribunals deciding these two cases. The other cases in the group of applications were decided on the following dates: that of Mr. Knipe, and a large number of other persons, on 22nd November, 1974; that of Mr. Miller, on 4th February, 1975; that of Mr. Parkin on 3rd March, 1975, and that of Mr. Crown on 22nd July, 1975. In the Knipe & Others case the tribunal gave a long, carefully reasoned and very clear decision, and they have very sensibly incorporated that, by reference, in each of the others. Accordingly it is necessary to refer to the decisions in the cases of Mr. Miller, of Mr. Crown and of Knipe & Others, in order to understand the position.
2. The facts in relation to Mr. Crown, so far as relevant, are set out in paragraphs 1 and 2 of the tribunal's reasons. He, like the others, had originally been employed by a company called George Blackburn & Sons Ltd.: in his case, from November, 1948 until February, 1963, apart from an absence on National Service. In February, 1963, he was dismissed on the ground of redundancy. He could not, of course, get a redundancy payment because the Act was not then in force.
3. The reasons continue:

"Almost immediately he obtained other employment believing, as did the employers at that time, that there was little prospect of George Blackburn & Sons Ltd. re-opening again and the applicant believing that his connection with that company was probably finally over. He remained in that other employment for a time and then got further employment, but in February, 1965, he was offered and accepted employment with the respondents [Bentley Engineering Co. Ltd.], an associated company of George Blackburn and Sons Ltd. He worked for the respondents until the 28th June, 1974, when he was again dismissed for redundancy, and he has been made a redundancy payment based on his service with the respondent company, but ignoring his earlier service with George Blackburn & Sons Ltd."

4. The tribunal then go on to recite that he made a claim for a further redundancy payment within the time limit, which is not relevant in his case but is in the case of Mr. Miller.
5. Paragraph 2 of the reasons continues:

"It is not disputed that the issue before the tribunal is whether the applicant's absence from work between February, 1963 and February, 1965 comes within the wording of paragraph 5(l)(b) of the First Schedule to the Contracts of Employment Act, 1972. Only if it does so is he entitled to a larger redundancy payment."

6. The facts material to the case of Mr. Miller, who was employed by George Blackburn & Sons Ltd. for 15½ years, are to be found in paragraph 3 of the decision:

"However, in 1963 and into 1964, he had a 21-month break in employment due to redundancy. Then he joined the Bentley Engineering Co Ltd., an associated company, and served for about a further 7½ years with that company before being dismissed for redundancy."

7. So, the circumstances are the same, except that in one case the gap is two years (Mr. Crown) and in the other it is 21 months (Mr. Miller); and there is not in the case of Mr. Miller, as there was in the case of Mr. Crown, an express finding that he took a replacement job, regarding it, in effect, at that time as a permanency, having severed his connection with his original employers, everyone then supposing that they would not come back into business
8. Schedule 1 to the Contracts of Employment Act, 1972, by reason of the operation of the Redundancy Payments Act, 1965, provides the standard for determining whether employment, for the purposes of calculating a redundancy payment, is continuous. Paragraph 5, under the cross-heading "Periods in which there is no contract of employment," provides:

"(1) If in any week the employee is, for the whole or part of tt week -

"(a) incapable of work in consequence of sickness or injury, or

"(b) absent from work on account of a temporary cessation of work, < "(c) ......

"that week shall, notwithstanding that it does not fall under paragraph or paragraph 4 of this Schedule" -

9. I interpolate that those paragraphs relate to occasions when there is a contra of employment -

"count as a period of employment."

10. So the vital words upon which the whole of these cases depend are these: "If in any week the employee is, for the whole or part of the week . . . (b) absent from work on account of a temporary cessation of work"; and we are talking about periods of two years, and of 21 months, respectively. Mr. Reynolds, counsel for the appellants, has stressed that this schedule is dealing in weeks and that, under paragraph 5(2), which relates to absence due to sickness, the maximum period to be taken into account is 26 weeks. Looking at it generally, at first sight it might appear, I suppose, that absences of such lengths, in such circumstances - especially, perhaps, in the case of Mr. Crown, where there was an intention to take up another job, probably permanently - could almost be ruled out of account as possibly constituting absences from work on account of a temporary cessation of work. But it needs to be borne in mind at the outset that the law, now, after a judicial conflict which has been resolved in the House of Lords, is as laid down in Fitzgerald vs. Hall, Russell & Co. Ltd.^[1] The effect of that case is that the tribunal is enjoined to look at the matter as the historian of a completed chapter of events, and not as a journalist describing events as they occur from day to day. The importance of that is this, that things are seen, as they unfold, quite differently from the way in which they are seen when one looks back and considers the whole of the chapter in its context. What at the time seems to be permanent may turn out to be temporary, and what at the time seems to be temporary may turn out to be permanent. One does not have to go very far to think of good examples: there are, in this building, two courts described as "Temporary Court A" and "Temporary Court B" which were erected, I think I am right in saying, in 1919 as an emergency measure: called "temporary," but by any other standard permanent. One can think of many other examples the other way round. So, first impressions are no true guide to the problem.
11. The decided cases have established that paragraph 5(1 )(b) poses three questions: was there a cessation of the employee's work or job, was the employee absent on account of that cessation, and (which is perhaps the most important question in this case) was the cessation a temporary one? That those are the right questions was not challenged in this appeal; they were followed by the tribunal, and they are helpful. But I do think that some caution is needed because, although they are a helpful guide and anybody confronted with this problem should follow them, at the end of the day one has to go back to the words of the statute, which I have read. And it is probably helpful if, after considering the particular questions I have mentioned, a tribunal does go back and look at the question in the round, to see whether it is satisfied that the claimant was absent from work on account of a temporary cessation of work. I think there is a danger - with respect, I think that Mr. Reynolds may have fallen into it here - of tending to construe judicial utterances meant to act as a guide to the understanding of paragraph 5(1 )(b) as though they were themselves statutory enactments. They are not. Therefore, caution is required in making use of them, to see that they suit the circumstances of the individual case.
12. The key decision is that in the Knipe & Others case. It is a long and clearly reasoned decision and is one which, if I may say so, reflects great credit on the tribunal concerned. In paragraph 7 they set out those three questions and they have no difficulty in deciding the first two favourably to the claimants, and devote most of the rest of the decision to the third, that is to say, was the cessation temporary? In paragraph 8 they set out correctly and clearly the various criteria to be taken into account: the nature of the employment; the length of prior and subsequent service; the duration of the break; what was said when the break occurred; what happened during the break; what was said on re-engagement, etc. "It all depends on the facts of each individual case which we have examined as carefully as we can do in the light of the evidence before us." So, there is no doubt that the tribunal set out the relevant factors.
13. They go on to deal in detail (and it was very important), in paragraph 9, and subsequent paragraphs, with the length of the break, seen in the whole context of the case, particularly the earlier period, in each case a long one, and the subsequent period, in each case a long one. In paragraph 11 they say:

"We are of the opinion that a most important factor to take into account is the length of the break compared with the total length of service, feeling that a cessation which could not be regarded as temporary for someone who had only been employed for a short time when the break occurred, might, all else being equal [I stress those words], be regarded as temporary in the case of someone with a long period of prior service."

14. They elaborate that and reach a decision in each case favourable to the claimant. Then, in the individual cases of Mr. Crown and of Mr. Miller, the tribunal consider and deal with carefully and fully the particular additional matters (and there were additional matters) that were urged upon them in each of those cases, and again come down in favour of the claimant.
15. Against that background, I turn to consider the points raised in support of these appeals by Mr. Reynolds. First, he says that there is no cessation of work, if you look at it (as you must, he says), albeit with hindsight, from week to week; and he stresses that each week must be looked at separately. There is, he says, no cessation for two reasons: (1) because the claimants did not get back their old jobs - he does not pursue that much, because the evidence on that is not clear; and (2), in particular, because they did not go back to their old employers. He says that unless you go back to your old employer, it is impossible to say that there is, as it were, a continuing cessation. Or reflection, I think it becomes clear that that submission is one which belongs to the question whether the cessation was temporary. It seems to me perfectly plain (and so the tribunal thought) that there was a cessation. And, if one takes into account that the old employers never returned to the scene, one might say, in a way, that it was a permanent cessation, rather than that there was no cessation at all. So this point, I think, belongs to his later submission on the question of "temporary" and is, viewed in isolation, merely one which has to be taken into account when considering the question whether it was temporary. It is just one of the factors, and it was considered by the tribunal. But there is also involved, in this point, the circumstance that the re-engagement was by an associated company of the first-named company. Having regard to paragraph 9 of the First Schedule and, indeed, to general principles, that circumstance - that is to say, the departure from the scene of the original employers - would defeat the claims here, were it not for paragraph 10. So, in the end, I think that this point comes down to the construction and application of paragraph 10. Before looking at that, it should be said the submission that the claimants cannot avail themselves of paragraph 10 is inconsistent with the actual decision in Seymour vs. Barber & Herron Ltd.^[2] in the sense that the matter there was disposed of without argument, sub silentio, and with the decision in Northern Ireland in Monarch Electric Ltd. vs. Mac-Intyre^[3] where the matter was considered and Lord McDermott gave judgment upon the point. I will not take time to read that, except to say that it is favourable to the claimants and that I shall follow it in this case. It is criticised by Mr. Reynolds as being delivered without the benefit (because it had not then been decided) of the speeches in the House of Lords in Fitzgerald's case,^[4] the tendency in Northern Ireland being to look at the matter rather differently from that enjoined by the House of Lords in Fitzgerald. But I myself cannot see that that distinction of approach bears on this particular question. It seems to me that the claimants here plainly fall within paragraph 10, which reads:

"(1) If an employee of a company is taken into the employment of another company" -

and that is what happened; and the only reason why it might not apply to the claimants is, if it be said that at the time they were taken into the employment of the second company they were not employees of the first company. But, having regard to the use of the word "employee" in paragraph 5, which pre-supposes that there is no contract of employment, I do not really think that poses any difficulty. In other words, "employee of a company," in paragraph 10, is descriptive rather than saying that he has to be an employee at that particular time.

"If an employee of a company is taken into the employment of another company" -

in this case, the Bentley Engineering Co. Ltd. -

"which at the time when he is taken into its employment is an associated company of the first-mentioned company" -

which it was -

"his period of employment at that time shall count as a period of employment with the associated company and the change of employer shall not break the continuity of the period of employment."

16. The only other possible difficulty lies in the words "his period of employment at that time," which could be open to more than one construction. But it seems to me plain that what is intended - and I think this is what Lord McDermott was saying - is that any period of employment which the claimant would be entitled to bring into account, if he was being reemployed by the original employers, shall count and that for this purpose one ignores the fact that there has been a change of employment, that fact only being relevant when one comes to consider the question whether, in the terms of paragraph 5, the cessation was temporary. And so I fine nothing in this point.
17. The second point is that the tribunal misdirected itself and applied the wrong test, when it said that the cessation was temporary. It is important to note that Mr. Reynolds does not say that the decision is perverse; hi says that here there was a misdirection, or that the tribunal attached too much importance to a factor which, if relevant at all, was only marginally relevant. I have already indicated the approach of the tribunal to this question and I shall not do so again. The criticism is, first, that they were wrong, in assessing the relevance of the 2 years' and 21 months' absence to take into account the lengths of periods of employment before and after wards, and work out, as Mr. Reynolds put it, a sort of ratio. I do not accept that. It seems to me to be common sense. As I indicated earlier, what, at the time it happens, may be thought to be temporary, in the result may be seen in its context not to be temporary. In fact, this approach has the support of Lord Morris of Borth-y-Gest in the Fitzgerald case, where he specifically said,^[5]

"All relevant evidence and all relevant factors will have to be taker into account. Questions of fact will arise. The duration of one period relative to or in relation to the antecedent and subsequent periods will be one relevant factor."

18. Nor do I accept the criticism that, if it was a relevant factor, the tribunal paid too much attention to it. It seems to me that it was obviously an important factor, and I think they would have been wrong not to give it prominence. But I think that it may be that it seems to receive greater prominence in the decision than in fact the tribunal did give it, because, if one reads the Knipe & Ors. decision together with the other decisions, it is quite clear that they considered all the relevant factors and weighed them al up, and that they directed more time and attention to this factor because they had a large number of claimants to consider and differentiate. And this, in the end (and rightly so in the particular circumstances of the case was the principal criterion which required them to distinguish between the different claimants, some of whose claims failed and some of whose claim; succeeded. So, in my judgment, the tribunal did not have regard to irrelevant considerations, and have not been shown to have paid excessive weigh to relevant considerations. The question is one of fact for them, and in this regard, in my judgment, no error of law has been shown.
19. The third submission is that, even if there was a cessation, and even if it was temporary, the absence of these claimants from work was not on account of that cessation. This submission is directed primarily, and perhaps exclusively, to the case of Mr. Crown, and is founded on the fact that there is no evidence in his case that he sought and obtained other employment - indeed, I think, other employment on two occasions - before resuming his employment with the respondents. The complaint is that the tribunal did not ask itself separately, in relation to each week, was the employee absent from work on account of the cessation, or was not the true case that he was absent on account of having taken other employment elsewhere? Reliance is placed on some observations of Lord Parker C.J. in Thompson vs. Bristol Channel Ship Repairers & Engineers Ltd.^[6] That case, in a sense, was the converse of this case, inasmuch as the tribunal had found against the claimant because the claimant had taken up some other, temporary occupation. The appeal was allowed and the case remitted. Lord Parker said,^[7]

"It is said that once he had gone into the employment of Bailey's [the firm with which he took up temporary employment] his absence from work at the respondents' premises was not on account of the temporary cessation of work in respect of which he had been stood off, that his absence once he had taken up employment with Bailey's was on account of his contract of employment with Bailey's. For my part I do not feel that that is the right approach. The moment he was stood off here, and certainly for the days when he was unemployed, he was undoubtedly absent from work on account of the temporary cessation of work with the respondents, he then takes, under protest, this job with Bailey's. He only takes the job on account of the original temporary cessation of work, and provided that his contract with Bailey's is only of a nature which is intended to bridge the gap until the temporary cessation of the respondents' work has come to an end, it seems to me that it is perfectly correct to describe the whole period including that period of employment with Bailey's as absence from the respondents' premises on account of their temporary cessation of work.

"I can quite see that if the job taken after he has been stood off is of such a nature and intended to continue for such a period as not to be, as it were, bridging the gap, then from the moment that employment is entered into, his absence is on account of that employment. Equally as it seems to me if during the period when he has taken a further job, the temporary cessation with his previous employers comes to an end and he is asked to serve them again and cannot, then the absence thereafter is undoubtedly due to the new job because the temporary cessation of work has come to an end."

20. The first thing to say about that is that that is not a statement contained in a statute; it is merely an observation, based on the circumstances of that case, of certain relevant considerations. That was what I meant when I said earlier that there is a danger, I think, in considering these underlying questions laid out in decided cases as guides, as being a substitute for the statutory words. The answer seems to me to be that that consideration - that is, that Mr. Crown had taken up other employment - is relevant in two ways: it is relevant as a factor in deciding whether the cessation was temporary (and it was so considered by the tribunal); it is also relevant, as Mr. Reynolds says, on the question whether the absence was due to the cessation. This point was dealt with by the tribunal, having been developed before by Mr. Reynolds, who had appeared to argue this claim. They deal with it in paragraphs 5, 6 and 7. I cannot find anything wrong with the way in which they reached their conclusions. They point out that what Lord Parker said is entitled to great weight but is not laying down some inflexible principle. They refer to the Fitzgerald case. They remind themselves that that is a little different because that is dealing more with the question whether the cessation is temporary, and they say:

"... we cannot believe they would have approached the matter in the way they did if they had been of the opinion that the taking of other employment, believed to be permanent, was itself fatal to a claim that the absence was due to the original cessation."

21. And in my judgment that is perfectly right. If the fact of taking up another job, when considered (as it was considered by the tribunal) as a factor in deciding whether the cessation was temporary, does not lead to the conclusion that it was not temporary, then I should have thought it was certainly open to the tribunal to reach the conclusion that nor does it prevent the absence being due to the cessation. All these, in truth, are entirely matter of fact for determination by the tribunal. In my judgment they made correct approach and the matter is not, on analysis, a question of law.
22. The fourth and last submission relates only to the case of Mr. Miller It is said that his claim is statute barred. There was another submission which Mr. Reynolds does not now pursue, that, having regard to the earlier making of a redundancy payment, there was an accord and satisfaction but that, now, for a number of reasons, he does not pursue. The submission that the claim is statute barred rests on section 21 of the Redundancy Payments Act, 1965. First, it is necessary to summarise the facts. Mr. Miller was employed for approximately 15 years up to 1963, when he was dismissed for redundancy. He was off and away for 21 months. He was then reemployed by the respondents, the associated company, for a period from 1964 to 1972. In June, 1972, (the date is not specified) he was dismissed. He made a claim upon his employers, the respondents, to a redundancy payment. The evidence does not disclose whether it was written, or in what form it was; and, if it should become material hereafter to find out, the case would have to be remitted to decide it. He made a claim within six months of June, 1972; there was some kind of discussion about it, and again the evidence does not disclose precisely what happened, but in the end a payment was made and it is, I think, common ground that that payment was referable to the period of service from 1964 to 1972. The claim upon which the tribunal's jurisdiction was based was made on 15th November, 1974, little less than two years after he was dismissed. Section 21 provides:

"Notwithstanding anything in the preceding provisions of this Part of this Act, an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date" -

and it is common ground here that the "relevant date" is the date of dismissal -

"(a) the payment has been agreed and paid, or

"(b) the employee has made a claim for the payment by notice in writing given to the employer, or

"(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to a tribunal in accordance with regulations made under Part III of this Act."

23. Everybody who has had anything to do with this case - that is to say, counsel, myself, the tribunal and all involved - are agreed at least on one thing, and that is that this section is obscure. Before going any further, whatever the outcome of this particular case, it is, I would have thought, obviously desirable that the next time there is any legislation in this field, consideration be given to the replacement of section 21 by a section which will make quite plain to employees and employers precisely what are their rights and obligations in this respect - because it is a matter of the greatest importance that people should know quite clearly, in all the various circumstances which can arise (and they are very varied), what are the time limits in which a claim should be made. Mr. Reynolds' submission is that, taking the section as it stands, no claim was made to the tribunal within the period of six months. The tribunal found themselves in very considerable difficulty over this point and dealt with it in this way, in paragraph 6 of the reasons in Mr. Miller's case.

"On the other hand the section talks of entitlement to a redundancy payment and therefore we have considerable doubt whether it has any effect in barring the right of an employee to pursue an application before an industrial tribunal when entitlement to a redundancy payment is not in issue but only the amount."

24. So there, they are drawing a distinction between a claim for a payment and a claim concerned only with the amount of the payment; and they continue:

"Very clear words would have to be used to satisfy us that such a right was statute barred and the words are not clear. We are therefore of the opinion that section 21 does not prevent any of the applicants before us today from pursuing his application."

25. The tribunal then add words which indicate that there might have been some dispute on the facts whether, if they had decided otherwise, section 21 had been satisfied.
26. I confess I share the general puzzlement as to precisely how this section works. In particular, the meaning and purpose of paragraph (a), "the payment has been agreed and paid," seem far from clear. The tribunal offer the conjecture that they may have some significance in relation to a claim by an employer for a rebate, meaning by that, I think, the kind of case where the employer who is found liable to make a redundancy payment has recourse against the fund under the control of the Secretary of State. B it is no more than conjecture, and it is far from clear.
27. Mr. Smith, counsel for Mr. Miller, meets the point in a number of ways. He says that if one looks at section 9, which provides, in sub-section (1)-

"Any question arising under this Part of this Act as to the right of an employee to a redundancy payment, or as to the amount of a redundancy payment, shall, in accordance with regulations made under Part III of this Act, be referred to and determined by a tribunal" -

that subsection, he says, draws a clear distinction between the right to a payment and the amount of the payment. Section 21, he submits, is only dealing with the former and this claim is only concerned with the amount and therefore section 21 has no bearing. That, I think, is more or less what the tribunal decided. He does not say that the effect of that is that a claim which only relates to amount can be brought at any time, however far in the future - what Mr. Reynolds calls the "Doomsday" argument. He says that the way in which it works is that something must have been done which falls within (a), (b) or (c), within the period specified, and that, once that has happened (and it has, he says, happened in this case), then thereafter any claim as to amount is secure, however long thereafter it is brought forward. He says that that causes no particular hardship to the employer because it follows that they will have had prior notice of a claim. He says that paragraph (a) is satisfied here because there has been a payment, which has been agreed to be paid, albeit not the payment which is the subject of the particular claim. Alternatively, he says that paragraph (b) is satisfied inasmuch as there was a claim made for payment within the period of six months to the employer - to which Mr. Reynolds says that there is no evidence that it was in writing. As I have already pointed out, the evidence on this is incomplete and if it became material, the case would have to go back to the tribunal. So, for the purpose of construction, and for simplicity I assume for the moment that the claim made (which certainly was made because there was the earlier payment) was by a notice in writing.

28. A slightly different way of putting the argument - and it is not altogether easy, I find, to disentangle the different ways of putting it - is this: it is said that section 21 goes to entitlement to a redundancy payment, the entitlement deriving from section 1 and the earlier sections of the Act, and that the effect of section 21 is to divest the employee of his entitlement to a redundancy payment, unless, within the period of six months specified, he does one of the acts described in paragraphs (a), (b) or (c). If he does no his right is divested. If he does, his right is preserved. So, it is not like the ordinary limitation provision which merely bars the remedy; the effect it to extinguish the remedy.
29. Then, so the argument goes, that view - which is founded on the words "shall not be entitled to a redundancy payment" - is strengthened by the words I read from section 9, which draws a distinction, as it plainly does between the right to the payment and the amount of the payment. And so in a case (and Mr. Smith says that this is such a case) where the claimant satisfies (a), (b) or (c), at whatever point of time, the effect is to preserve what he would otherwise have lost, namely, his entitlement to a redundancy payment, and that once that has been achieved there is in the section no other restriction on his bringing that claim at any time in the future; that there is in the Act, or the rules or regulations, no other time bar. It seems to me there is a great deal in that argument. In other words, the structure of section 21 is this: one starts with an entitlement derived from the earlier parts of the Act. Unless certain steps are taken, that entitlement is taken away. If those steps are taken, the entitlement is preserved. So, says Mr. Smith, "If you can establish that (a), (b) or (c) has been satisfied, and the steps taken, the result is to prevent what would otherwise happen, his entitlement being taken away." The only answer that has been brought forward against that (and it is an important argument) is one based on the words in paragraph (c), "a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to a tribunal in accordance with regulations made under Part III of this Act." And so it is said that there the draftsman is distinguishing, as he did in section 9, between the right and the amount; and that accordingly, as I understand the argument, section 21 must apply to amount and to entitlement. At first sight that seems an attractive argument, but I have come to the conclusion that it is wrong. Paragraphs (a), (b) and (c) merely state the steps which have to be taken within the six months in order to prevent the employee losing the right which one has to assume that up to that time he possessed, that is to say, that he was entitled to a redundancy payment. So, all that paragraphs (a), (b) and (c) are doing is to state the steps which have to be taken and which, if they are taken, will prevent the right from being divested. As far as (b) is concerned - and one has to express this negatively, in accordance with the scheme of the language - he does not lose his right, if a claim is made within six months by notice in writing to the employer. Equally, under (c), he does not lose his right, if a question as to the right, or a question as to the amount, is referred to the tribunal. In other words, the events stated in paragraph (c), just as in the case of paragraphs (a) and (b), are acts or facts which, if they occurred, prevent what otherwise would happen, that is to say, his right being divested. It does not seem to me that one can argue, from that, that what section 21, in its earlier words, attaches to is not merely the entitlement to a payment, but a claim as to the amount of payment. In other words, I have come to the conclusion that Mr. Smith's argument on this point is right. I will summarise it again, as I understand it, and it is this: one must of necessity approach section 21 assuming the existence of a claimant prima facie entitled to a redundancy payment. And what is said is, not that he cannot bring his claim after a particular period of time, or anything of that kind; what is said is that, unless he does (a), (b) or (c), he shall not be entitled to that which previously prima facie he was entitled. Consequently, if he establishes that he has taken one of the steps set out in (a), (b) or (c), he is no longer not to be entitled. In other words, the operation of it is purely negative and he is in the position that he would have been in, if this particular restriction had not existed.
30. As I am satisfied that the step set out in paragraph (a) has been taken, and it is quite likely (although it would have to be the subject of further evidence) that the step set out in paragraph (b) has been taken, it follows from my judgment that the claimant Mr. Miller is not caught by this section.
31. Before leaving that aspect, I would add that, for the reasons I have already indicated, the section seems to me to be difficult and unclear, so that in any event it ought, in accordance with principle, to be construed in favour of the claimant and against depriving him of a right which otherwise previously he would have enjoyed.
32. That completes, I think, the toll of Mr. Reynolds' submissions, and it means that the appeals in both cases must be dismissed. In the case of Mr Crown, he would have succeeded in any event. In the case of Mr. Miller, he had to surmount this additional hurdle, and, for the reasons I have indicated, in my judgment he does.

Appeals dismissed

Note 1   (1970) 5 I.T.R. 1.    [Back]

Note 2   (1910) 5 I.T.R. 65.    [Back]

Note 3   (1968) N.I.L.R. 163.    [Back]

Note 4   3(1970) 5 I.T.R. 1.    [Back]

Note 5   (1970) 5 I.T.R. at 8.    [Back]

Note 6   (1969) 4 I.T.R. 262, 265.    [Back]

Note 7   ibid at 265.    [Back]