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Cite as: [2013] IESC 52
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Judgment Title: Fuller & ors -v- Minister for Agriculture Food and Forestry & anor Neutral Citation: [2013] IESC 52 Supreme Court Record Number: 132/2008 High Court Record Number: 2005 1183 JR Date of Delivery: 27/11/2013 Court: Supreme Court Composition of Court: Clarke J., MacMenamin J., Dunne J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Allow And Set Aside | ||||||||||||||||
THE SUPREME COURT [Appeal No: 132/2008] Clarke J. MacMenamin J. Dunne J.
MARIE FULLER, ANNE MARIE COLLINS, NUALA O’MAHONY, CARMEL KELLEHER, BRENDAR FARR, MARGARET COLLINS, GRETTA COLEMAN, GERALDINE HURLEY, KAREN MURPHY, MAIREAD O’CONNELL, GRETE HEGARTY, BRIAN O’REGAN, HUGH O’REILLY, DEIRDRE COOMEY, BERNIE BURKE, MARTIN BRENNAN, MARGARET CAHILL, SHARON CANNON O’REILLY, NOIRIN CARR, TERESA COMMONS, TERESA COSGROVE, JAMES CUNNINGHAM, MICHAEL CORCORAN, MARIE CRESHAM, MAUREEN DEANE, CHARLOTTE DEVINE, CATRIONA DOYLE, GERALDINE FARRAGHER, ANGELA DEMPSEY, GERALDINE FORKAN, KEVIN FEENEY, BRIDGET A. GALLAGHER, FRANCES GALLAGHER, MARTINA GALLAGHER, BRID GAYNARD, KITTY GREENE, NOREEN GROARKE, MICHAEL HALLINAN, BREDA HEGARTY, MARY HENEGHAN, MARGARET HENRY, MAURA HENEGHAN, TERESA HYLAND, UNA HENRY, GERALDINE HUGHES, SHEILA JOYCE, MARGARET KEANE, MARGARET KEARNEY, PATRICK KILCOYNE, LYNDA LYONS, MARIA LARKIN, VALERIE LAVELLE, ANN LYNOTT, CARMEL GOLDEN, JOHN LOFTUS, MARY MOORE, KATHLEEN MADDEN, ALICE VESEY-McCARTHY, SIOBHAN McDONNELL-GILL, MARY P. McDONNELL, KARA McNULTY, KATHLEEN MINOGUE, PATRICIA MORAN, HELEN MURPHY, NUALA MURPHY, JOSEPHINE NAUGHTON KEANE, BRID Ni CHINNÉIDE, ÁINE Ui LOIDEAN (ÁINE Ni EANACHÁIN), BERNADETTE O’MALLEY, CATHERINE O’MALLEY, JAMES O’MALLEY, JOSEPH O’REILLY, PATRICIA O’MALLEY, HONORAH RONAYNE, CATHERINE B. SWEENEY, IRENE RYDER, ANNE VAHEY WALSH, MARY WALSH, MAUREEN WALSH, MAURA WALSHE, JAMES WOODLOCK, LORRAINE BOYLE, PATRICIA FITZPATRICK, HILDA FLANAGAN, CARMEL HALL, MARY HERATY, MARTINA JORDAN, CHRISTINA KEARNS, MARTINA KELLY, LORETTO MARLEY, MARY C. McDONNELL, ELEANOR McHUGH, ANNE RUANE, BRIDIE SHALLY, BERNADETTE WALSH, MAIREAD WHELAN, MARY WHITE, KAY DOLLY, SUZANNE BRODY, BREDA QUIRKE, NIAMH SPILLANE, MARY McAULIFFE, TERESA CLEARY, PATRICIA CREGAN, CARMEL GALVIN, MARY O’CONNOR, ANNETTE COLLINS, DOLORES QUINN, NORA T. O’BRIEN, CLAIRE RYAN, DENISE McINERNEY, ELEANOR BIRMINGHAM, GERALDINE O’BRIEN, ANNE MARIE SHEEHAN, DOLORES O’SULLIVAN, ADELE WRIGHT, BRENDA MOLONEY, SIOBHAN CRAIG, MARY BREEN, PATRICK POWER, JUNE DANAGHER, MARTINA TOBIN, BREDA MURPHY, CLAIRE CONSIDINE, OLIVE O’CONNOR, MARGARET MULVIHILL, BREID GUINANE, DOLORES BURKE, EILEEN CARROLL, EILEEN CASEY, MARIE DALTON, MARY DILLANE, SIOBHANE DINEEN, VERONICA DONEGAN, PHILIP EGAN, ELIZABETH M. EGAN, MARGARET GRIFF-FITZGERALD, MARGARET FITZGERALD, ANNE FOLEY, BREID GRIFFIN, DAVID GRIFFIN, NORA HALLISSEY, EILEEN HANLEY, MARIAN HERLIHY, MARIAN HUSSEY, ANNE KAVANAGH, KATHLEEN T. KAVANAGH-McELLIGOTT, CATHERINE T. KELLIHER, EILEEN KENNEDY, CARMEL KING, KATE KISSANE, ANN LEEN, NORA McCARTHY, SIMON McCARTHY, EILEEN McQUINN, DEIRDRE MOORE, MARY MURPHY, SINEAD NOLAN, SHEILA O’CONNELL, NOREEN O’CONNOR, MARY ENRIGHT O’CONNOR, SHEILA O’DONOGHUE, DEBORAH A. O’CONNOR SCANNELL, MARY O’MAHONY, MARIAN O’REILLY, ANN O’SULLIVAN-DOWNEY, MARY O’SULLIVAN, MARION ROSS, ANNE REEN, SHEILA REYNOLDS, CARMEL SHEEHY, MARION WALSHE, SUSAN CONROY, ANNE EGAN (FORDE), ANNE CONNOLLY, ELIZABETH HAYES, THERESA HURLEY, MARY EVANS, PATRICIA LAWTON, SILE COLLINS O’NEILL, ANNE WHELAN, PATRICIA BURKE, GERALDINE MURPHY, DOLORES DOYLE, CATHERINA FARRELL, MARYSE JENNINGS, RAY BURKE, EAMON DOYLE, MARY SMITH, IMELDA KEANE, BREEDA McDONAGH, VALERIE FALLON, BERNIE HICKEY, CARMEL DONOGHUE, CIARA GLYNN, ANNE MILLER, ROSALEEN CONNELLY, PHILO MADDEN, PAT CONNELLY, ANN FAHERTY, CATHERINE RUANE, BRIDIE THORNTON, MARY MAUGHAN, CARMEL FEENEY, MARGARET FOY, MAUREEN MOONEY, TERESA HANNON, GERALDINE FLANAGAN, BRID DONNELLAN, PATRICIA DUFF, ANNE FEENEY, CATHERINE LOFTUS, HELEN LUNDY, MARIA BARRETT, CIARA FAHY, SEAN MURPHY, MAURA CURRAN, JANETTE TREACY, SHARON KEELY, CATHERINE FINNEGAN, PAULINE COLLINS, KAREN DONOGHUE, OLIVE RIDDELL, BREEGE BURKE, VIOLET CALLAGHAN, MARTIN BIGGINS, ANNE HESSION, CATHERINE RYAN, MARGARET RAFTERY, PATRICIA GILLIGAN, DEIRBHLE CAREY, GERALDINE CONROY, MARY B. KEADY, MARY TREACY, ANNE COSTELLO, CLAIRE CLEARY, ETHNA MAHONY, DOLORES MURPHY, RITA HURLEY, GERALDINE CAHIR, ROSARIO MELLET, GERALDINE McHUGH, SABRINA BYRNE, VALERIE FULLARD, DEIRDRE McGUIGAN, MAURA McNICHOLAS, MARY HENNESSY, UNA CAFFERKEY, SINEAD GORMAN, NOREEN O’DRISCOLL, ANN McNAMARA, NORA BUTLER, MARY KEANE, CATHERINE GORMALLY, CLAIRE O REILLY, JULIE COLLINS, MARY SOMERVILLE, PATRICIA SHEEHAN, BERNADETTE DUNNE APPLICANTS/APPELLANTS AND
THE MINISTER FOR AGRICULTURE, FOOD AND FORESTRY AND
THE MINISTER FOR FINANCE RESPONDENTS/RESPONDENTS JUDGMENT of Mr. Justice Clarke delivered the 27th November, 2013 1. Introduction 1.2. After judgment had been given on the appeal, the applicants’ trade union (“the CPSU”) wrote to the Department asserting an entitlement, deriving from the decision of the courts in Fuller (No. 1), to be entitled to pay and pension qualification in relation to a period when, to use a neutral term, they were out of work as a result of the relevant industrial dispute. The claim made also related to other officials who, while they were not applicants in Fuller (No. 1), were involved in the same industrial dispute. 1.3. The judgments of Carroll J. in the High Court and McGuinness J., speaking for this Court, in Fuller (No. 1) give a comprehensive account of the relevant facts and it is, therefore, unnecessary to go into those facts in great detail at this stage. For present purposes, it is sufficient to note that, in taking certain members of CPSU off the payroll, the respondents (“the Ministers”) had acted in purported reliance on s. 16 of the Civil Service Regulation Act 1956. The backdrop to that stance was the fact that members of the CPSU took a form of limited rolling industrial action in furtherance of a trade dispute concerning terms and conditions. The action involved a refusal to carry out certain types of work at certain times. Warnings, both oral and written, were given that those involved would be taken off the payroll under s. 16 unless full work was resumed. The officials concerned declined to terminate their limited industrial action and they were removed from the payroll. This happened on two different dates for two different groups of officials. Immediately thereafter, an all-out strike was called and, separately, the legal proceedings which became Fuller (No. 1) were commenced. The time at which officials went on all-out strike also differed by reference to the different times when relevant officials were removed from the payroll. 1.4. In simple terms, the decision of both Carroll J. and of this Court in Fuller (No. 1) was that the Ministers had acted unlawfully in purporting to place reliance on s. 16 in order to remove the officials concerned from the payroll. In substance, it was held that s. 16 was concerned with disciplinary matters and could not be utilised in relation to persons who were refusing to do certain aspects of their work as part of a general industrial relations type dispute. 1.5. In any event, as a result of the decisions in Fuller (No. 1), it was asserted that the relevant officials were entitled to be paid (and to be credited for pension purposes) for the period which elapsed between the officials concerned being taken off the payroll and their return to full work as a result of a settlement of the underlying industrial relations dispute. While there was no initial substantive response to the correspondence addressed to the Ministers on behalf of the relevant officials by CPSU, at the hearing in the High Court in these proceedings, the Ministers asserted that the relevant officials were not entitled to be paid because they had, it was said, gone on all-out strike immediately after they were removed from the payroll. On that basis, it was asserted that the law does not require striking workers to be paid. 1.6. As a result of the refusal of the Ministers to make the payments concerned and to agree that pension qualification and calculation would be conducted on the basis of the workers concerned having a credit for the relevant period, these proceedings were commenced and ultimately came on for hearing before Gilligan J. in the High Court. The applicants in these proceedings included those who were the applicants in Fuller (No. 1) but also included many others involved in the dispute. It will be necessary, for completeness, to deal briefly with the precise position of each group of applicants in due course. However, for present purposes, it is sufficient to note that the claims made in these proceedings failed in the High Court, and it is against that decision that this appeal is brought. 1.7. A range of issues came to be determined by Gilligan J. The one which most logically arises first for consideration derives from a contention put forward on behalf of the relevant workers that the Ministers are now estopped or otherwise prevented from putting forward an argument of the type just addressed by virtue of the manner in which the Ministers defended the earlier proceedings. In addition, there are both factual and legal disputes between the parties as to the circumstances, if any, when workers may be entitled to be paid in circumstances such as arise in these proceedings. However, clearly, those potentially difficult issues do not arise in the event that the Ministers are prevented from raising the relevant substantive arguments in the first place. In those circumstances it is appropriate to turn, first, to consideration of that issue. 2. The Estoppel Issue 2.2. In their statement of opposition the Ministers specified, at paragraph 7, that it was admitted “That the Applicants have been and continue to be deprived of their remuneration however it is pleaded that in so depriving the Applicants the Respondents have acted lawfully and in accordance with the powers conferred upon them by section 16 of the Civil Services Regulation Act 1956.” 2.3. In the context of that sequence of pleading, the undisputed factual backdrop is of some relevance. The applicants in Fuller (No. 1) were involved in part of the rolling industrial action to which reference has been made. They were served with notices to the effect that, unless they returned to full work, they would be removed from the payroll with effect from the 28th April. As was emphasised by counsel for the Ministers before this Court, there was already experience on both sides as to how matters were likely to develop, for a larger number of co-officials had already been removed from the payroll earlier in April in identical circumstances. It was pointed out that the relevant communications on behalf of the Ministers on both occasions made clear that the removal from the payroll was to last only as long as any relevant officials were actively engaged in the rolling industrial action in the sense of not actually fully working on any particular day or days. It was in the nature of that rolling action that different officials declined to do certain duties for a number of specified days and then returned to full working. Thus, it is said on behalf of the Ministers that it was clear at all times that the only removal from the payroll which would occur would be in respect of those days on which any relevant official declined to carry out their full duties, so that the official concerned would be restored to pay in respect of any day or days on which they did, in fact, work fully. 2.4. In simple terms, the Ministers’ case is, therefore, that any relevant official would have been fully paid in respect of any days on which they returned to full work. On that basis it is said that the only reason why the officials concerned were not paid for the period in dispute was because they were on full strike. However one characterises matters, it is clear that all of the officials who were applicants in Fuller (No. 1) were on full strike before leave was obtained to seek judicial review and well before the statement of opposition on behalf of the Ministers was filed. For completeness, one minor twist in the facts should be noted. As pointed out, the sequence of events was that, on different dates, groups of officials were removed from the payroll in purported reliance on s. 16 as a result of their failure to do full work. Within a day an all-out strike was called. No pay was, at the relevant time, given to any official in respect of a time after they were removed from the payroll on the basis of the Ministers’ contention that they were not entitled to such pay. However, in the course of the proceedings before the High Court, it was accepted on behalf of the Ministers (as it would have to have been in order to maintain a position consistent with the case being made by the Ministers) that any official who, subsequent to being removed from the payroll, did attend for work even on the basis of doing limited duties, was entitled to be paid. That concession stemmed from the acceptance by the Ministers that, at a minimum, the judgments in Fuller (No. 1) rendered non-payment of officials in respect of periods when they were attending for some work unlawful. 2.5. It is in the context of those facts that the estoppel issue arises. It is argued on behalf of the officials that the only justification put forward on behalf of the Ministers in their statement of opposition, not only for their initial deprivation of remuneration but also for any continued deprivation of remuneration, was s. 16. On that basis, it is said that if, as is now argued to be the case, the true reason for depriving any relevant official of remuneration after the all-out strike commenced, and thus at the time when the judicial review proceedings were launched and, in particular, when the Ministers put in their statement of opposition, was a separate reason, being that the workers were now on all-out strike, then same could and should have been pleaded in the statement of opposition. 2.6. On that basis, it is said that it is now too late for the Ministers to seek to make a different case to justify the failure to continue to remunerate the relevant officials. Against that background, it is next necessary to turn to the way in which the trial judge dealt with this aspect of the case. 3. The Judgment of the Trial Judge 3.2. Thereafter, at page 11 of his judgment, Gilligan J. went on to say the following:-
4. Analysis 4.2. Next it is, for completeness, of relevance to note that two of the original applicants, who remained parties as at the time of the High Court, withdrew their appeals at the time of the oral hearing in this Court. For ease of reference, I will, therefore, refer to those of the original applicants whose case remained alive at the oral hearing as “the continuing claimants”. I now turn to the arguments raised at the hearing on the estoppel issue. 4.3. The first point noted by counsel for the continuing claimants was that the case for estoppel made in the High Court was one made on behalf of the applicants rather than one, made on behalf of the Ministers, which suggested that the claim, rather than the defence, was subject to a Henderson v. Henderson type estoppel. Against that background, it is suggested that it is curious that the trial judge made a finding that “the raising of the issue by the applicants” is not “in any way an abuse of process”. No such suggestion had, apparently, been made by counsel for the Ministers before the High Court. 4.4. While that point may not, of itself, be of any relevance to this appeal, it is apparent that the trial judge proceeded on the basis that the question of actual payment of the applicants in Fuller (No. 1) was not raised in that case. An analysis of the pleadings in Fuller (No. 1) makes it clear that that is not the case. The relief in respect of which leave to seek judicial review was granted by the High Court (Quirke J.) on the 12th May, 2003, included, as has already been noted, at item (d)(II), “An Order of Mandamus directing the Respondents to restore the Applicants to the payroll as and from the 28 April 2003”. Thus, there was a very specific claim made in Fuller (No. 1) seeking an order, in effect, that the relevant applicants be paid. The plea at paragraph 7 of the statement of opposition, which has already been cited, has to be seen in that light. It follows that, at least so far as the pleadings were concerned, the issues which were before Carroll J. in Fuller (No. 1) included (although obviously were far from confined to) a claim for payment with a denial that the applicants were entitled to payment. In particular, that denial was expressly stated to be based on the application of s. 16 and s. 16 alone. Furthermore, and of particular relevance to the issue which has now arisen, s. 16 was stated to be the justification not only for the initial removal from the payroll and, thus, the initial refusal to pay the relevant applicants, but also in respect of any continued refusal to pay. The statement of opposition was filed on the 20th May, 2003. By that stage all of the applicants in those proceedings were on full strike. If, therefore, the basis for not paying those officials, after they had gone on full strike, was because they were not entitled to be paid simply because they were on strike, then it is surprising that no mention of that justification is to be found in the statement of opposition even as a fallback position. 4.5. On the basis of the case which the Ministers now seek to make, it would, for consistency, have been appropriate for the Ministers to have pleaded, in late May, 2003, that, at least in the alternative and whatever about the effect of s. 16, the applicants were no longer entitled to continue to be paid by virtue of their being on strike. No such plea is to be found. 4.6. What then are the consequences of the way in which the Ministers defended Fuller (No. 1)? First, it is said on behalf of the Ministers in this appeal that Fuller (No. 1) turned out to be a very narrow case wholly concerned with the proper statutory interpretation of s. 16. In that context, it is said that, whatever about the claim for payment being included in the relief sought in the statement of grounds, no such claim was pressed in the sense that neither the judgment of Carroll J. in the High Court or McGuinness J. in this Court deals with the order of mandamus. It can, I think, safely be inferred that had such an order been pressed at either hearing, the court would have at least dealt with it in some fashion. There is, on the affidavits, a difference of recollection which it is impossible to resolve at this remove as to what might have been said in this Court about the payment issue. 4.7. In his replying oral submissions, counsel for the continuing claimants agreed that the issue in Fuller (No. 1) was narrow but suggested that the reason why it was so narrow was precisely because of the way in which the Ministers chose to set out their opposition. It seems to me that counsel was correct in so characterising the situation. It remains the case that, as the case was pleaded, the applicants in Fuller (No. 1) asserted an entitlement to be paid. The only basis put forward for resisting that claim was to place reliance on s. 16. It was, in those circumstances, a matter for the Ministers to raise any other basis or justification for not continuing to pay the applicants in that case. The issue was narrow precisely because the Ministers chose not to widen it. The failure to press for an order of mandamus must, again, be seen in that context. Given that the only basis put forward by the Ministers for suggesting that they did not have a continuing obligation to pay was s. 16, it was, in my view, not unreasonable for the applicants in Fuller (No. 1) to consider that a victory on the s. 16 point would necessarily carry with it an entitlement to be paid. It is true that the court was not asked to make the mandamus order. It is true that the court did not, therefore, expressly find that the applicants were entitled to be paid. But it is also true that the only basis put forward in the pleadings for suggesting that the applicants were not entitled to continue to be paid was rejected. 4.8. In passing, I should note that, while not all of those who are applicants in these proceedings were parties to Fuller (No. 1), no argument was, in my view quite properly, advanced on behalf of the Ministers to suggest that any estoppel which, contrary to his submissions, might arise could only apply in favour of those who were applicants in Fuller (No. 1). The fact is that Fuller (No. 1) arose out of the same dispute between, in substance, the same parties and it would have been wholly inappropriate to seek to distinguish between those who happened to be applicants in Fuller (No. 1) and those who were not. 4.9. It is also worthy of some note, although far from decisive, that the Ministers, in Fuller (No. 1), sought to rely on jurisprudence of the English courts which suggested a “no work no pay” principle such that, independent of s. 16, the Ministers might have been entitled to remove the applicants from the payroll because of the undoubted fact that they declined to work fully in accordance with their contractual obligations. However, this Court made clear that it did not consider it appropriate to permit the Ministers to raise, in Fuller No. 1, that point precisely because no basis other than s. 16 had been put forward to justify the removal of the applicants from the payroll. It was acknowledged by counsel for the continuing claimants in this Court on this hearing that the “no work no pay” point sought to be raised on that earlier occasion on behalf of the Ministers was a slightly different one than the one now sought to be relied on. The point then sought to be made was that the Ministers were entitled to remove the relevant officials from the payroll because they were engaged in reduced working as part of the limited and rolling industrial action to which reference has already been made. Of course, what is now sought to be relied on is the same principle but as a justification for a continued removal from the payroll subsequent to the complete refusal to work occasioned by the calling of an all-out strike. However, it seems to me that the underlying principle is much the same. The basis which the Ministers put forward as a justification for non-payment (either by the original removal from the payroll or in respect of any continuing non-payment) was s. 16 and s. 16 alone. No other basis was put forward. 4.10. Insofar as it might be said that the basis for not paying the continuing claimants changed when they went out on all-out strike, no mention of that is made in the statement of opposition. If the Court were only concerned with what was said in correspondence at the respective times when the relevant officials were initially removed from the payroll (which was, of course, before they were on all-out strike) then there might be merit in that point, although it would, also, be necessary to consider whether there was any obligation on the Ministers to specify that there had been a change in the basis on which the officials concerned were not to be paid. However, by the time the case in Fuller (No. 1) came to be pleaded the situation had already changed so that, if the Ministers’ argument be correct, the reason for not paying the applicants in Fuller (No. 1) on a continuing basis was no longer s. 16 but rather their all-out strike. For the reasons already analysed, no mention is made of such a basis in the pleadings. 4.11. It seems to me to follow, therefore, that the reason why Fuller (No. 1) was debated on a narrow basis was because of the position adopted by the Ministers and not the position adopted by the applicants. The applicants sought continuing payment. The Ministers’ only basis for justifying not continuing to pay was s. 16. On that basis, and because of the position adopted by the Ministers, the case was argued on a narrow basis and it was not unreasonable for the applicants in Fuller No. 1 not to press for an order of mandamus when it was clear that only one justification for non-payment (including continuing non-payment) was put forward and where their central attack was on the legality of that basis. 5. The Consequences 5.2. For the reasons already analysed I am satisfied that the trial judge was incorrect in his analysis of the circumstances which led to the question of payment not being the subject of a definitive ruling by either the High Court or this Court in Fuller No. 1. It is clear that the exercise by the trial judge of the discretion which he undoubtedly enjoyed as to whether to permit the Ministers to put forward a different defence in these proceedings to that put forward in Fuller No. 1 was significantly coloured by the view which the trial judge took of those circumstances. It follows that this is not one of those cases where this Court is required, in accordance with the relevant jurisprudence, to afford very significant weight to the manner in which the trial judge exercised his discretion. I am, therefore, satisfied that, in those circumstances, it is appropriate for this Court to take a different view as to whether the Ministers should be allowed rely on the defence in question. 5.3. In my view, having permitted Fuller (No. 1) to proceed on a narrow basis by failing to put forward any justification for the continuing removal of the applicants from the payroll other than s. 16, it would now be unjust to deprive the continuing claimants of the fruits of their victory in Fuller (No. 1) by allowing the Ministers to put forward a different and, substantially inconsistent, basis of justification for continued non-payment. 5.4. One further observation seems to me to be appropriate. It might, on a superficial view, be taken that this Court is deciding this appeal on narrow and technical pleading grounds. It is important to emphasise that such is not the case. The modern view on pleadings is that the Court should be anxious to ensure that the true issues between the parties are determined. To that end a court should lean in favour of any application to amend pleadings provided that no unfairness or injustice will result. However, it remains the case that pleadings are important for they define the parameters within which any case is to be decided. Where it is desired either by a claimant (whether plaintiff, petitioner, applicant or the like) or by a defendant or respondent to expand the scope of a hearing beyond that defined by the pleadings then it is of the utmost importance that an appropriate application to amend the pleadings is made and dealt with by the court. That is as true, if not more true, in the sphere of judicial review where the legality of otherwise valid measures is at stake. Such cases should be clear as to their scope both of claim and defence. 5.5. There have, regrettably, been far too many cases which have come before this Court in the judicial review sphere in recent years where the case had evolved both before the High Court and on appeal before this Court but in circumstances where the parties had not sought to amend the pleadings to reflect any such change. Such is a highly unsatisfactory situation. No such problems, of course, arose in this case. However, those observations serve to emphasise the importance of ensuring that the scope of the issues before the Court in judicial review proceedings are clear from the statement of grounds and statement of opposition for that scope can have effects beyond the relevant proceedings. On the facts of this case it was clear that the issues before the court in Fuller No. 1 included the question of continuing payment with opposition to payment being grounded solely on s.16. 5.6. The other issues which were debated on this appeal raise important questions concerning the circumstances in which employers generally or those in the public sector are, independent of statute, entitled to refuse to pay, or fully pay, persons engaged in limited or full industrial action. Likewise the issues involve important questions from the perspective of employees as to whether they can be obliged, on pain of not being paid at all, to work in circumstances where employers either have threatened or have actually refused to pay or fully pay them. It seems to me that, having concluded that the Ministers were not entitled to raise those issues in these proceedings for the reasons already analysed, it would be inappropriate to enter into a detailed consideration of those important questions in circumstances where any conclusions reached would clearly not affect the result of the case and thus be obiter dicta. On that basis I would propose dealing with this case solely on the basis of the estoppel or abuse of process argument raised on behalf of the continuing claimants which, for the reasons already set out, I am satisfied permits those claimants to succeed. I now turn to the order which I propose. 6. Conclusions 6.2. As I am of the view that these proceedings can be disposed of on the basis of the estoppel or abuse of process argument put forward on behalf of the continuing claimants it does not seem to me to be appropriate to deal with the other important issues raised. 6.3. For the avoidance of doubt, I would propose that the parties be asked to agree a specific form of order, specifying the continuing claimants and identifying declarations to be made, which meet the substance of this judgment.
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