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Case No: QBENF 98/1439/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(CARDIFF DISTRICT REGISTRY)
(HIS HONOUR JUDGE MOSELEY QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 24th March 2000
B e f o r e :
LORD JUSTICE HENRY
LORD JUSTICE ALDOUS
and
LORD JUSTICE LAWS
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|
CARDINAL
PACKAGING LIMITED
|
Appellant
|
|
-
and -
|
|
|
ATKINSON
& OTHERS
|
Respondent
|
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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A Hillier Esq (instructed by Messrs Dolmans for the Appellant)
M Lane Esq (instructed by Messrs Thompson Smith & Puxon for the
Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE HENRY:
1. This is an appeal from His Honour Judge Moseley QC sitting as a Deputy High
Court Judge, delivered in Cardiff on 22nd October 1998. The matter arises in
this way: the first three defendants, Malcolm Atkinson, his brother Kevin, and
Simon Phillips, were employed by the fourth and/or fifth defendants, who I will
jointly refer to as ACP, at printing works in Hereford, some distance from
their homes in or near Ebbw Vale. There was in Ebbw Vale another printing
works, namely Cardinal Packaging Limited - the claimants in this case. In
September 1966 the three individual defendants left their employment with ACP
to take up employment with Cardinal at their printing works in Ebbw Vale. The
move was not successful. The men wished to return to their previous employer,
who when the men left had indicated that they could always come back to ACP
provided there were vacancies. In March of 1997 they left their employment
with Cardinal, and again took up employment with ACP, on 24th March 1997.
Unfortunately, none of the three men gave sufficient notice to terminate their
contracts of service with Cardinal, who consequently claimed that the
individual defendants were liable to pay the claimant damages, to be assessed.
Cardinal in the same action joined ACP, the fourth and fifth defendants. In
this claim they alleged:
"... the fourth and/or fifth defendants procured or induced the first, second
and third defendants to terminate their employment with the plaintiff without
giving proper notice in breach of the above pleaded term."
2. Cardinal succeeded in their action against the individual workmen, but
failed to make out their case against the corporate defendants. The claim
against the latter was dismissed, with no order as to costs in the action.
Cardinal now appeal their case against the corporate defendants, and the order
for costs. There is no cross appeal by the individual defendants.
3. The ingredients of the tort of actionable interference with contractual
rights were set out in DC Thompson & Co Limited -v- Deakin [1952] 1
Ch 646. There Lord Justice Jenkins set out four categories of direct
interference with contractual relations and the judge makes it clear that the
case before him was argued under the first category only, that is to say:
"Direct persuasion or procurement or inducement applied by the third party to
the contract breaker, with knowledge of the contract and the intention of
bringing about its breach, is clearly to be regarded as a wrongful act in
itself, and where this is shown a case of actionable interference in its
primary form is made out: Lumley -v- Guy."
4. The judge said:
"The plaintiff's case stands or falls as a case of direct persuasion or
procurement or inducement with intent to bring about a breach."
5. There is no dispute as to the law. The act of inducement is not by itself
actionable: the procurer must be able to be shown to have acted with knowledge
of the contract, and with the intention to interfere with the claimant's
contractual rights. The classic summary is Jenkins LJ's judgment in
Thompson -v- Deakin [1952] 1 Ch 646 at 697:
"But, while admitting this form of actionable interference in principle, I
would hold it strictly confined to cases where it is clearly shown, first, that
the person charged with actionable interference knew of the existence of the
contract and intended to procure it breach; secondly, that the person so
charged did definitely and unequivocally persuade, induce or procure the
employees concerned to break their contracts of employment with the intention I
have mentioned; thirdly, that the employees so persuaded, induced or procured
did in fact break their contracts of employment; and fourthly, that the breach
of contract forming the alleged subject of interference ensued as a necessary
consequence of the breaches by the employees concerned of their contracts of
employment."
6. Diplock LJ added a gloss to this in Emerald Construction Company Limited
-v- Lothian [1966] 1 WLR 691 at 704:
"But ignorance of the precise terms of the contract is not enough to show
absence of intent to procure its breach. The element of intent needed to
constitute the tort of unlawful procurement of a breach of contract is, in my
view, sufficiently established if it be proved that the defendants intended the
party procured to bring the contract to an end by breach of it if there were no
way of bringing it to an end lawfully."
7. Conversely, where there is evidence of a positive intention not to cause a
breach of contract, an alleged inducer is not liable if the contract is, in
fact, breached: White -v- Riley [1921] 1 Ch at 16 and 26.
8. I take the facts from the judgment:
"26 The three employees had left ACP's employment in September 1996 on good
terms with everyone. They were well regarded by Mr Whitehouse the managing
director, and were on good terms with Mr Stubbs the print manager. Mr Malcolm
Atkinson was on particularly friendly terms with him. The attitude of the
management at ACP was that they regretted the departure of the three men,
sympathised with the employees concerning the strain of travelling daily from
and to Ebbw Vale, and, exceptionally, had no objection to the employees
returning to their previous jobs if they were so minded. ACP's willingness to
take them back was exceptional because in this industry employees who leave are
not normally taken on again. So the position was that both the employees and
the management at ACP remained on good terms and the employees knew that their
old jobs were available provided their were vacancies in the workforce; my
understanding of the evidence is that there were nearly always vacancies in
both factories, the work being specialised and the available pool of labour
limited.
27 In January 1997 ACP took delivery of a new Italian printing press,
manufactured by Uteco. That machine was installed and operational by 17th
February 1997, though a fume extraction system attached to it was not then
operational. On an unknown date before 10th March 1997, Mr Malcolm Atkinson
and his brother the second defendant Mr Kevin Atkinson visited the ACP factory
at Hereford inter alia to see the new machine. The impression I gathered from
the evidence was that the visit was a friendly visit with no particular motive;
but it was against the background that all three employees were unhappy with
their work at Cardinal. They had not settled in and did not find their work as
congenial as they had found their work at ACP. Either as a result of that
visit or contemporaneously with it, they learned that consequent upon the
arrival of the new machine ACP was recruiting printers and that there were
vacancies for them is they wanted to return.
28 At ACP there were three relevant persons engaged in management functions.
Hiring and firing was the function of the print manager Mr Stubbs, who also
determined rates of pay. Mr Whitehouse was the managing director with overall
control of the company including, or course, a supervisory function in respect
of Mr Stubbs's work. The company secretary was a Mrs Evans who was based in
London but visited the Hereford factory from time to time. She was also the
managing director of ACP's holding company (which was not identified to me)
She was not a lawyer but her functions included liaising with lawyers.
29 Some time before 10th March 1997 the first and second defendants (the two
Atkinson brothers) informed Mr Stubbs that they wished to return to their
employment with ACP. Mr Stubbs informed Mr Whitehouse, who was delighted to
hear the news. An inquiry was made as to whether the third defendant Mr Simon
Phillips could also return, if he wished. Mr Phillips was unsure whether he
wished to return, their being difficulties in making childcare provision
because of his wife's shiftwork pattern. Mr Stubbs and Mr Whitehouse agreed
that a job would be available for Mr Phillips also, if he wished to return. I
infer from the evidence that that decision was communicated to Mr Atkinson.
30 Cardinal had until the hearing no first hand knowledge of how the recruiting
process had proceeded. It had necessarily to rely on what it was told by the
employees, who were not entirely frank. Hence in the statement of claim there
are allegations of inducements which go well beyond the facts as I find them to
be. It is there alleged that Mr Malcolm Atkinson was offered the position of
assistant print manager. I am satisfied that that was not the case, and that
he was merely offered his old job. It is also alleged that the arrival of the
new machine at ACP had created an emergency at ACP requiring the urgent
recruitment of print operators. I am satisfied by the evidence that that is an
exaggeration: ACP was seeking to recruit new printers, as it always was, but
the arrival of the new print machine caused no particular difficulty. Its
arrival had caused an alteration in the shift pattern, and the recruitment of
new staff enabled the shift pattern to revert to its previous form. There was,
however, no emergency, certainly not such an emergency as would cause me to
infer that ACP was willing to procure a breach of contract in order to recruit
staff. It is also alleged that financial inducements were offered to the
employees to rejoin ACP. There is evidence in the documents of a modest
increase in wages, but the evidence about that increase is confused and
uncertain. On balance I infer from it that the employees merely enjoyed an
increase in salary in common with all the other employees of ACP and received
no special treatment.
31 By 10th March 1997 Mr Malcolm Atkinson had decided that he wished to leave
the employment of Cardinal and to return to his old job at ACP. As mentioned
in Section `B' above, he had signed the previous January a written contract of
employment, but I am satisfied by his evidence that he had not read it
carefully enough and had misunderstood it. He thought it required him to give
one week's notice to Cardinal since he had been employed by Cardinal for less
than a year. It s clear that the second and third defendants harboured the
same mistaken understanding, probably derived from Mr Malcolm Atkinson who was
the leader of the group and incidentally also their print supervisor. Under
that mistaken impression Mr Malcolm Atkinson spoke to Mr Damien Williams on
10th March 1997. Mr Williams was then in sole charge of the factory, Mr Tucker
the Managing Director being abroad on holiday. Mr Malcolm Atkinson informed Mr
Williams that he had been offered his job back at ACP, and that ACP would like
to have him back as quickly as possible. Mr Williams pointed out to him that
his contract of employment required him to give one calendar month's notice
expiring at the end of the calendar month, and said that Cardinal would be
unwilling for him to leave without working out his full notice period. Mr
Williams urged Mr Malcolm Atkinson not to make a final decision until Mr Tucker
had returned from holiday. Mr Malcolm Atkinson immediately telephoned ACP and
spoke to Mr Whitehouse. There is no contemporaneous note of the telephone
conversation and of course only the evidence of Mr Malcolm Atkinson and Mr
Whitehouse concerning it. I have no reason to reject their evidence which was
that Mr Malcolm Atkinson informed Mr Whitehouse that he had a legal problem and
needed to consult a solicitor. Mr Whitehouse understood that the problem was
concerned with Mr Atkinson's contract of employment with Cardinal and concerned
with the notice of termination which he was required to give. He was not,
however, informed in detail about the conversation with Mr Williams and the
nature of the problem was not explained to him. Mr Whitehouse informed Mr
Atkinson that his colleague Mrs Evans was the person at ACP who dealt with
legal problems, and that Mr Malcolm Atkinson should speak to her. There was
then a conversation by telephone between Mr Malcolm Atkinson and Mrs Evans
during which Mrs Evans asked Mr Atkinson to send her a copy of his contract and
offered to put him in touch with the company's solicitors. Mr Malcolm Atkinson
sent a copy of his contract of employment to ACP the same day and the following
day (11th March 1997) Mrs Evans faxed a copy of it to the company's solicitors.
Because of legal professional privilege it is not known what advice was given
to Mr Atkinson by the company's solicitors; but some advice was given.
32 It is, apparently, Cardinal's case as advanced by Mr Wynne-Griffiths that
the various states of mind and knowledge of the three managers of ACP I have
mentioned can be added together, attributed to ACP and/or the fifth defendant,
and that I should infer therefore that ACP and/or the fifth defendant procured
Mr Malcolm Atkinson and the other employees to break their contracts of
employment, intending them to do so. I say `apparently' because having put
that proposition to me Mr Wynne-Griffiths then appeared at the end of the case
to resile from it, and did not respond to my invitation to submit in writing
any additional argument and authority he wished me to take into account. So
the proposition was put to me without any supporting authority. In my judgment
the argument is without substance. The issue is whether I should infer from
the facts that ACP and/or the fifth defendant by one or more of their officers
procured the employees to break their contracts of employment with intent that
they should do so. The facts from which I am invited to draw that inference
are that Mrs Evans, the company secretary, had received through the post on
11th March 1997 a copy of Mr Malcolm Atkinson's contract of employment. The
same day she faxed a copy of it to the firm of solicitors who have habitually
acted for the company but, on this occasion, appear to have been acting as
solicitors retained by Mr Malcolm Atkinson. By inference she must have
retained the hard copy in her own possession. She did not give evidence and
therefore that is all that is known about her involvement in the matter. Mr
Whitehouse did not see the contract and had no knowledge of its contents. All
that he knew was that some legal problem concerning notice had arisen
concerning Mr Malcolm Atkinson's contract with Cardinal. Mr Stubbs appears to
have known nothing of this: his involvement in the matter was to recruit Mr
Malcolm Atkinson and his two colleagues to the workforce. He was not involved
with legal matters. It was established by the evidence that Mr Malcolm
Atkinson has not received a bill from the solicitors. Mr Wynne-Griffiths
invited me to draw adverse inferences from that, being that ACP was interested
in the answer to the query put to the solicitor and must have known what the
problem was. I am unable to draw any such inference. The problem must have
been a straightforward one for the solicitor to solve, the wording of the
contract being clear to a lawyer. One possibility is that the solicitors did
not send a bill at all either because of goodwill towards the company or
because the matter was so straightforward.
33 I am unable to draw the inference Mr Wynne-Griffiths invites me to draw.
None of the officers of ACP had as an individual sufficient knowledge of the
facts to enable me to draw such an inference. I infer that Mrs Evans must have
known of the relevant term in the contract of employment, but there was no
evidence that she was concerned in the recruitment process. Mr Whitehouse and
Mr Stubbs were involved in the recruitment process, but there is no evidence
that Mr Stubbs knew anything about the relevant term in the contract of
employment, and I cannot infer from the circumstances that Mr Whitehouse had
any such knowledge. So in my judgment there are no grounds for drawing from
this incident the inference which Mr Wynne-Griffiths invites me to draw.
34 There were several discussions between one or more of the defendants and one
or ore of Cardinal's two directors between 10th March 1997 (see above) and 24th
March, the last day on which any of the defendants worked for Cardinal. Most
of those discussions are in my view irrelevant to the issue of procuring a
breach. Only one incident appears to me to be of any relevance, namely that Mr
Malcolm Atkinson told Mr Tucker that he had to be at ACP's premises urgently in
order to receiving training on the new printing press from a visiting Italian
engineer. I am satisfied by Mr Atkinson's evidence that that was a lie: a
white lie as he put it. By the date of that lie he was aware of the notice
requirement in his contract of employment but was apprehensive about serving
out his notice because of the ill will which he thought he was likely to suffer
during his period of notice. So he viewed the lie as an excuse to enable him
to leave earlier. It did not achieve its purpose. Cardinal remained unwilling
for him to leave before the end of April in accordance with his contract.
35 It is common ground that on or abut 21st March 1997 each of the employees
received an offer of employment in writing signed by Mr Stubbs. Each of the
three letters contained a sentence that `you should report for work on Monday
24th March 1997 at 4pm'. Mr Stubbs did not know that there was any problem
about the period of notice but he did know that Mr Malcolm Atkinson had some
unspecified problem to sort out before he rejoined ACP and he understood that
that had been sorted out by 13th March 1997.
36 Each of the employees ended a block of four night shifts at Cardinal at 6am
on Monday 24th March 1997. They were due to start again on a day shift at 6am
on Good Friday, 28th March 1997 and in the meantime their time was their own.
In fact all three started work for ACP or the fifth defendant at 4pm on the
24th after a short period of sleep. According to their offers of employment
from ACP they were due to work 8 hours shifts 5 days a week: ACP had altered
their shift pattern to accommodate the new machine and had not reverted to the
old party of four 12 hour shifts. So all three employees were due to work for
ACP or the fifth defendant from 4pm on Monday 24th March 1997 until midnight on
Good Friday, 28th March 1997. On Thursday, 27th March 1997 Mr Williams spoke
to the third defendant (Mr Simon Phillips) by telephone and was told that he
would not be attending work that weekend and was finishing with the company.
In my view that conversation is of no relevance to the issue of procuring a
breach. All it does is reinforce the conclusion that I have reached that Mr
Phillips was in breach of his contract of employment and paid scant regard to
his contractual rights.
37 There is one further item of evidence relevant to the allegation of
procuring a breach by Mr Malcolm Atkinson of his contract. Mr Atkinson felt
sorry for Cardinal and knew that they would be in difficulties over the Easter
weekend. So on Thursday 27th March 1997, he telephoned Cardinal and spoke to a
Mr Stephen Williams, Cardinal's production manager offering his services during
the weekend. There are two versions of the conversations, Mr Williams
asserting that the offer was to work one 12 hour shift only, and Mr Malcolm
Atkinson asserting that his offer was to work a block of four 12 hour shifts.
It does not appear to me important which version is correct, the issue having
nothing to do with the fourth and fifth defendants' alleged procurement of a
breach of contract by him. I, however, tend to the view that there was a
misunderstanding between them, Mr Atkinson offering to working one shift,
namely one block of four 12 hour shifts and Mr Williams understanding he was
offering one 12 hour shift only. The matter is only of relevance to the issue
of procuring a breach because of a note written on Mr Malcolm Atkinson's record
car by a Miss Ann Leigh, an employee of ACP whose function it was to keep the
record cards. Her entry records that Mr Malcolm Atkinson re-started on 31st
March, Easter Monday, which is known to be incorrect. The entry has been
altered from something else, and probably from 24th March, the day on which all
three employees started back. Mr Wynne-Griffiths invited me to draw an adverse
inference from those events, contending that it was clear from the alteration
that ACP and/or the fifth defendant knew that there was a problem concerning Mr
Malcolm Atkinson's notice of termination. I can make no such inference. Miss
Leigh was not called to give evidence, and the alteration in the record is
consistent with Mr Malcolm Atkinson's explanation that since he intended to
work for Cardinal over the Easter weekend he was treating his period of
employment between 24th and 28th March as a period of casual employment. There
was no evidence at all of any knowledge by Miss Ann Leigh of any of the facts I
have mentioned.
38 Finally, I should add that Mr Whitehouse the managing director of ACP gave
evidence and in cross-examination strongly denied that he had procured any of
the employees to break their contracts of employment with Cardinal. He
admitted that he knew there was some problem concerning Mr Malcolm Atkinson's
notice, but thought that it had all been sorted out. I have no reason to
disbelieve him.
39 Mr Wynne-Griffiths invites me to infer from those facts that ACP and/or the
fifth defendant procured breaches of contract by all three employees with
intent. I am unable to make any such inference. It follows from the analysis
above that the claim against the fourth and fifth defendants for procuring a
breach of contract fails, but that the first, second and third defendants are
liable to Cardinal for breach of their respective contracts of employment."
9. As will have been seen, the judge, in a full and careful judgment resolved
most of the issues of fact in favour of ACP. Mr Hillier for the appellants
recognised the magnitude of his task in seeking to persuade this Court to
differ from the trial judge on issues of credibility where the latter had the
inestimable advantage of having seen and heard the witnesses and we did not.
Of central and crucial importance is that the trial judge believed Mr
Whitehouse, and that was decisive of the case. So it is on that that Mr
Hillier concentrates first. He submits that the judge should not have found
(paragraphs 31 & 32) that prior to the men coming to work for ACP, Mr
Whitehouse did not see Mr Malcolm Atkinson's contract and had no knowledge of
its contents. He contends that the proper inference to draw was that from, on
or after 11th March Mr Whitehouse must have known that Mr Malcolm Atkinson was
required to give a month's notice terminating at the end of the month, and so
could have not have been contractually free to start work for ACP on 24th
March.
10. Mr Hillier bases his attack on upsetting another inference: namely that
"Mrs Evans must have known of the relevant term in the contract of employment
... but I cannot infer from the circumstances that Mr Whitehouse had any such
knowledge." (paragraph 33)
11. He seeks to do this by relying on one question and answer by Mr Whitehouse,
disclosed by the transcript which we are told the judge had no note of. It
relates to the telephone conversation between Mr Atkinson and Mr Whitehouse
described in paragraph 31 of the judgment. The detail of that call is found in
evidence. Mr Atkinson at p 97 in chief:
"I said I needed a solicitor's advice ... he offered the services of their
solicitors. ... I was told to get in touch with Mrs Evans who dealt with that
side of things."
12. He posted her his service contract for her to forward to the solicitors the
company used, who gave him advice. He then went on:
"Q Did anyone at ACP tell you that you had to start work with them by a
particular date if you were going to go back?
A No.
Q Did anyone suggest to you or say to you that ACP would be in difficulties if
you did not start by a particular time?
A No.
Q Did you feel under any pressure of any kind from ACP to go back?
A No.
Q Why were you keen to go back?
A I felt the situation at Cardinal once I handed my notice in that it would get
a bit unpleasant and that was it."
13. He was then cross-examined:
"Q When you spoke to Mr Whitehouse on 10th March, what did you tell him about
your terms and conditions of employment with Cardinal?
A Nothing.
Q Why did you say that you wanted solicitor's advice?
A I said I needed to ask solicitors advice about my contract.
Q Did he ask you why?
A No. ... He said that I could use their solicitors if I wanted. I haven't
actually dealt with solicitors before.
Q The reason why you wanted solicitor's advice was what?
A Was because of the notice period.
Q And you wanted advice as to what effect?
A As to, you know, how right it was. ... Whether I was bound."
14. He went on to say that he had no discussion with ACP on the terms of his
contract either before 10th March of after. He got solicitors advice on the
contract by letter on 13th March. Privilege was successfully claimed for that
letter.
15. Mr Whitehouse at p 131:
"I offered the use of our solicitors to him and I referred him to Mrs
Evans."
16. We know that the service contract was faxed to Mrs Evans that night, and
forwarded to the company solicitors. When Mrs Evans was in Hereford (she
usually worked in London) she shared an office with Mr Whitehouse. So it is
said first that he must have known, and second that that is bolstered by a
passage in the evidence. The crucial answer relied on (the first sidelined
passage below) was not in the judge's note. It does not seem to have greatly
impressed counsel either because he repeated the sequence of questions, next
time getting an unfavourable answer, which I have also sidelined. The passage
is at p 135:
"Q His evidence is that he sends a complete copy of his ... contract to Mrs
Evans that evening, 10th March, right?
A That is what he said, yes.
Q And a complete copy is then received by your company on the following morning
and ... Mrs Evans, or possibly someone helping her, faxed some parts of that
contract to those instructing my learned friend at just after 10 o'clock on
that morning.
A Yes.
Q So at that point we can deduce, can we not, that there was a full copy of the
contract in your office?
A With Mrs Evans.
Q Yes. And did she mention to you at that stage what that contract said about
notice?
A I can't recall.
Q You can't recall. Is it possible that she did? It is likely, is it not?
A At some stage later on, yes.
Q Before he started on the 24th?
A In all probability, yes.
Q Did she show you the contract?
A I cannot recall seeing the contract itself.
Q You cannot recall seeing it?
A No.
Q Is it possible that you did?
A Not that I can recall.
Q Is it likely that she told you that the clause in the contract on notice
said, ... that notice had to be given before the end of a calendar month to
expire at the end of the calendar month following?
A At some stage later on, yes.
Q When you say at some stage later on, was that before or after the 24th
March?
A I honestly cannot recall.
Q Because, as I understand it, you are saying, `Well, 24th March, problem
resolves, got these three gentlemen on board.'
A I was under the impression that everything had been sorted out with Cardinal,
yes, from them.
Q So there was nothing more to talk about, as far as you and Mrs Evans are
concerned, in relation to Malcolm Atkinson's contract, was there?
A In all probability, no.
Q So it is possible that you had a discussion with her about that particular
time in the contract.
A It is possible, yes."
17. A number of points emerge from that passage. The answers to questions put
in the form "Is it possible" are seldom useful. Whatever weight could be given
to the first sidelined question and answer was taken away by the next sidelined
questions and answers. Next, the crucial point was not what the period of
notice was, but whether it had been "sorted". Mr Whitehouse believed it had
been because the men turned up for work on 24th March, saying that it had been
sorted. The judge was quite entitled to draw the inference he did, and his
relevant factual findings should not be interfered with. There was no special
magic in knowing that there was a notice provision in the men's contracts of
employment. All that mattered was whether the men would be required to work
their notice. Mr Whitehouse referred them to the solicitors the company used.
Mr Atkinson went to see them, and told Mr Whitehorse it was sorted. Mr
Whitehouse believed him, and the judge accepted that. He was entitled to do
so.
18. The next and principal issue raised by Mr Hillier is whether on the
evidence the plaintiff established that Mr Whitehouse on behalf of ACP
unlawfully interfered with the contract between Malcolm Atkinson and Cardinal
by authorising the offer of employment with ACP to begin on 24th March.
19. The significance of 24th March is that it is the day on which the three
individual defendants again started work for ACP. The request or requirement
was in a standard form letter offering the men the posts, dated 21st March.
This letter was sent by Mr Stubbs. He did not know of any difficulties as to
notice. His evidence as to their recruitment was that there was no urgency
surrounding it: "All I said was give me a start date". This the judge clearly
accepted, finding (Paragraph 30):
"There was however no emergency, certainly not such as would cause me to infer
that ACP was willing to procure a breach of contract in order to employ
staff."
20. That letter supports the judge's conclusion - it is clearly a formal letter
setting out basic terms, and nothing more can be read into it.
21. The claimant's letter before action of 3rd April 1997 reveals their
thinking, accusing ACP of:
"... placing pressure on them to commence work with you, prior to the expiry of
the appropriate notice period." (a contention subsequently amplified in their
pleading)
22. The judge rejected this in Paragraph 30. The salient point was that on the
evidence, while ACP was pleased that their ex-employees were coming back to
them, there was no incentive given them to do so, and it was not important to
the company whether or when they did come back, or did not.
23. The judge properly addressed the question of whether it was ACP or Mr
Atkinson who was the client instructing the company's solicitors. Mr
Wynne-Griffiths invited him to draw "adverse inferences" from the fact that Mr
Atkinson had not been billed for the work the solicitors had done for him. He
suggested that ACP was interested in the query put to the solicitor "... and
must have known what the problem was". The judge found himself unable to draw
such an inference. That finding was entirely consistent with his reading of
the case, namely that it was not a matter of importance to ACP when these men
started, that while Mr Whitehouse would have realised the last minute snag
concerned notice, he did not know precisely what the problem was. The judge
accepted his evidence:
"Mr Whitehouse ... strongly denied that he had procured any of the employees to
break their contracts of employment with Cardinal. He admitted that he knew
that their was some problem concerning Mr Malcolm Atkinson's notice, but
thought it had all been sorted out. I have no reason to disbelieve him."
24. Accordingly, the claimants have failed to establish that Mr Whitehouse on
behalf of ACP unlawfully interfered with the contract between Malcolm Atkinson
and Cardinal by authorising the employment of the men by ACP on 24th March.
Their principal ground of appeal therefore fails.
25. There was a subsidiary ground of appeal. It was submitted that if the
knowledge of Mr Whitehouse, Mr Stubbs and Mrs Evans were aggregated, then ACP
would be liable. This point was raised before the judge, but not
enthusiastically pursued. No authority was put before him, and on that basis
he found the argument without substance. On appeal, there is a fig-leaf of
authority offered. But the question never arises on the facts as found. There
was no-one at ACP who, on the judge's findings, knew that when the men turned
up for work on 24th March that matters had not been "sorted" with Cardinal.
The judge did not find that any of the three prime movers at ACP intended to
bring the men's service contracts with Cardinal to an end "... by breach if
there were no way of bringing [them] to an end lawfully." (see Diplock LJ in
Emerald Construction (above)).
26. Accordingly, I would dismiss this appeal.
LORD JUSTICE ALDOUS:
27. I agree.
LORD JUSTICE LAWS:
28. I also agree.
Order: Appeal Dismissed
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