Case No: A2/2006/2381 & A2/2006/2380
Neutral Citation Number: [2007] EWCA Civ 240
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION 
(MR JUSTICE BUTTERFIELD)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 28th February 2007
Before:

THE MASTER OF THE ROLLS
LORD JUSTICE BUXTON
and
LORD JUSTICE TOULSON
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Between:

	NOTTINGHAMSHIRE AND CITY OF NOTTINGHAMSHIRE FIRE AND RESCUE AUTHORITY AND LINCOLNSHIRE COUNTY COUNCIL	Appellant	
	
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THE FIRE BRIGADES UNION AND ORS	
Respondent	

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MR J GOUDIE QC and MR P WALLINGTON (instructed by Messrs Browne Jacobson) appeared on behalf of the Appellants.

MR J GALBRAITH-MARTEN and MR E WILLIAMS (instructed by Messrs Thompson) appeared on behalf of the Respondents.
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Judgment

Lord Justice Buxton: 
1.	This appeal concerns an unfortunate dispute between a body of fire fighters represented by the Fire Brigades Union (FBU) and their Fire Authority employers.  This court is not concerned, any more than was Butterfield J from whom this appeal is brought, with the industrial relations aspects of that dispute narrowly understood.  We are concerned simply with an issue that arises out of the proper construction of the current contract between the fire fighters and their employers.
2.	The dispute is about something that is called co-responding. What that is and how the dispute about it has arisen is if I may say so well set out in paragraphs 6 to 11 of the judge’s judgment:
“What then are the co-responding duties referred to in the declarations sought?  Firefighters necessarily have to deal on a regular basis with persons who, as victims of fires or other incidents, such as road traffic accidents, have suffered serious and potentially life-threatening injury. If first on the scene of such an emergency, firefighters administer such first aid and basic medical interventions as they can pending the arrival of ambulance crews or paramedics whose training and equipment enable them to provide more extensive medical support to the victim.  

“In order to be able to provide these first tier medical interventions firefighters are trained and regularly retrained in basic first aid and related procedures including the administration of oxygen. As part of their duties, firefighters carry defibrillators for use at such scenes.  

“Co-responding seeks to build on this training and the experience thus gained.  Calls for purely medical assistance from members of the public are routed to the ambulance service. Calls are classified as category A, B or C. Category A calls are those where the symptoms reported to ambulance control indicate that the patient's condition is or may be immediately life-threatening. In particular, though not exclusively, this refers to emergency calls reporting cardiac arrest, respiratory arrest, unconsciousness, chest pain, choking and collapse.  

“Government targets require the ambulance service to attend 75 per cent of such calls within eight minutes of receipt, the window of time during which it may be possible by medical intervention to keep the patient alive and to permit further treatment of the patient. Where such a call is received by the ambulance service and it appears to ambulance control that a fire appliance and crew could reach the patient within the critical eight minute window but an ambulance could not, either because of the relative location of the fire appliance and the ambulance or because the available ambulance is in use on other calls then the Fire and Rescue Service may be called out to attend the patient in addition to an ambulance being sent as soon as possible. Once on the scene firefighters will give initial medical support until the ambulance arrives, such as administering oxygen for breathing difficulties or using a defibrillator for cardiac arrest.  

“The initial training involved before a firefighter is equipped to undertake this task is a day initially with six monthly refreshers. The evidence shows that corresponding may be life saving and has saved lives in the areas where such schemes have been accepted by firefighters and put into effect.  

“The Fire Authorities have sought to impose an obligation on their employees to participate in co-respondent schemes. They maintain that their employees are contractually obliged to do so. Their case is that co-responding is within the terms of the national agreement and the Role Maps and role descriptions drawn up in implementation of the national agreement, and that instructions to undertake it are therefore within the scope of an employer’s authority to give reasonable instructions to its employees.”

3.	The litigation arises in this way.  There is a long standing position on the part of the Fire Brigades Union that co-responding is not included within their contractual duties. The case involving the Lincolnshire County Council, the fire authority for Lincolnshire, started by claims by that authority for declarations against the FBU and certain named defendants, including the General Secretary, to the effect that co-responding was indeed so included.  The case in Nottinghamshire started by two fire fighters employed by Nottinghamshire seeking declarations that deductions that were being made from their pay by reason of their refusal to take part in co-responding were unlawful. That claim was, we were told, abandoned during trial leaving in issue between those parties a counter claim by Nottinghamshire for declarations in essentially the same terms as those sought by Lincolnshire.  So the main issues are the same in each case, though each case is subject to one particular separate issue which we will come to at the end of the judgment. Before us Mr Goudie QC, who appeared for the appellants, made it clear that all parties are anxious to have a judgment that deals with the general issue that divides them.
4.	A significant number of issues in relation to co-responding are not in dispute.  Included amongst those are first, that co-responding schemes do have real benefits including the saving of lives; secondly, that fire fighters are well qualified and trained to perform the emergency first aid work that co-responding would involve; and thirdly, that the fire authorities have statutory powers, not least by sections 11 and 12 of the Fire and Rescue Services Act 2004, to use their equipment and to deploy their staff for the purpose of co-responding.  The only issue between the parties is whether the terms of the fire fighters’ employment extend to co-responding so that they can be required by their employers to cooperate in co-responding. The judge, if I may say so, put it well in his paragraph 12. He recorded that the employees and the FBU do indeed recognise the real benefits and value of co-responding schemes, and then said this:

“They maintain that such duties are outside the scope of the contractual obligations.  If the Fire Authorities wish them to undertake such duties then they submit the existing terms and conditions of employment will have to be changed. The price for those changes in terms of new protocols, working practices, and perhaps remuneration for additional duties must await negotiation between the fire authorities and the FBU.”

5.	In order to introduce the contractual dispute it is necessary to say something about three categories of document which are or are arguably relevant to it.  The first is something called IRNPs.  Fire authorities are statutorily required to produce Integrated Risk Management Plans after consultation with the FBU and subject to ministerial approval.  These set out the fire authority’s view of its role and tasks.  We were not, I think, actually taken to any IRNPs, but in the case of both authorities they make some reference to co-responding.  However, it is open to the respondents to say, as they did, that these references are on a somewhat aspirational level and cannot be taken to be laying down any decided policy.  

6.	The Lincolnshire IRNP says that it is the authority’s intention to, as they put it: “refine our responses to incidents other than fires”.  The Nottinghamshire IRNP goes a little further and says that the authority actively supports developments of partnership and service provision with the ambulance service. However, it is agreed by the appellants, firstly that the IRNPs are not negotiated with the FBU or the employees generally; and secondly that the IRNPs are not incorporated into individual contracts of employment. They do, however, say that the IRNPs are an important part of the background to be referred to when construing the actual contractual documents.  

7.	Secondly, the Role Maps.  These set out the duties of various grades of employees.  They are best explained in National Joint Council circular 1303, which is the document that announced the settlement of the well known national fire fighters dispute of 2002/2003.  It is important in this case and I shall quote shortly, again taking it from the judge.  It is the case that the Role Maps were incorporated into or at least referred to in the employee’s contracts, again as I shall shortly explain below.

8.	Third, the “Grey Book”, as colloquially called, though it had a longer and more imposing name.  This is the only specifically contractual document before us.  It is a collective agreement negotiated by the union with the employers’ representatives and it is accepted that it is incorporated in all the employees’ individual contracts.  The background and the context of the Grey Book are set out by the judge in his paragraphs 28 and 29:

 “The Grey Book was substantially amended following the settlement of the 2002/03 pay dispute. The settlement was announced with the issue of a joint statement on 13' June 2003. It reads as follows:

‘1.1 This Agreement sets out the changes in conditions of service and associated pay rises for a modem Fire Service.

‘1.2 In reaching this Agreement the NJC recognises that the role of a modern service is the reduction in loss of life, injury, economic and social cost arising from fires and other hazards.

‘1.3  The Fire Service is responsible for

•	risk reduction and risk management in relation to fires and some other types of hazard of emergency; 
•	community fire safety and education;
•	fire safety enforcement;
•	emergency responses to fires and other emergencies where it is best fitted to act as the primary agency responsible for the rescue of people, including road traffic accidents, chemical spillages and other large scale incidents such as transport accidents; and
•	emergency preparedness coupled with the capacity and resilience to respond to major incidents of terrorism and other chemical, biological, radiological or nuclear threats.

‘1.4  The principal components of 'fire fighting' and 'fire control' work are covered by the relevant Fire Service National Role Maps.  These Role Maps reflect Fire Service responsibilities incorporated into local risk management plans in order to:

•	apply a risk based approach to fire cover and to all its activities in deciding how best to use its resources;
•	focus on reducing the level of fire and other emergencies;
•	develop and maintain effective partnerships with a range of agencies in the public, private and voluntary sectors where these can deliver cost-effective improvements in community safety; 
•	adopt safe systems of working to secure the health and safety of both its staff and the general public; and
•	minimise the impact of the incidents it attends and of its response at those incidents on the environment.’

“The statement also covered in some detail other matters of importance, including pay increases, duty systems, overtime and part-time working. It made no specific reference to co-responder schemes.

“The amended Grey Book took effect as from 26th August 2004. Paragraph 1 of the preface begins:

‘1 	The role of Local Authority Fire and Rescue Services in the United Kingdom is the reduction in the loss of life, injury, economic and social cost arising from fires and other hazards.’

“Thereafter the paragraph rehearsed word for word the joint statement to which I have already referred.”

9.	I turn then to the contractual dispute and to the way in which it is to be resolved. As the judge pointed out, there is no specific reference to co-responding in the Grey Book.  What the Grey Book does contain, including by reference to Role Maps, is a detailed statement of skills, compentences and duties expected of fire fighters which, if their contractual duties did extend to co-responding, would be appropriate -- or at least not inappropriate -- in doing co-responding work.  How, therefore, should we decide whether the contract, and thus the employer’s duties extend to co-responding, even though the contract does not say so?  And even though, and as was accepted, the Fire Brigades Union did not expressly agree to co-responding entering the contract in the course of negotiations in the court below?  For that purpose both sides had recourse as did the judge to the well known formulation of Lord Hoffman in the West Bromwich case [1998] 1 WLR 896.  We were not taken back to this in the appeal, but I should say something of it in the context of the judgment of the judge below.  

10.	Although the following observations make no difference to the outcome of the present case, it seems to me that to refer in detail to Lord Hoffman’s statement in this particular case produced a degree of elaboration that the case does not require.  The problem in the West Bromwich case, and what divided the Court of Appeal and Lord Lloyd on one hand from Lord Hoffman and the majority in the House of Lords on the other, was that a literal reading of the terms of what was described by Lord Hoffman as a badly-drafted clause led to an outcome that was thought to flout business common sense. When faced with that problem, and assuming that the parties had not intended to create a nonsense, the whole circumstances of the transaction differ significantly from the most obvious indicators of the parties’ intentions, the words that they used. The background must be scrutinised to see what the parties’ real intentions, as opposed to the meaning of the words that they actually used, must have been. 

11.	So, according to Lord Hoffman’s principle four, not only may the background be resorted to in order to chose between different meanings when the words actually used are ambiguous, but also that exercise may lead to the conclusion that the parties must have used the wrong words in the first place.  There is no such problem in our case.  The meaning of the words used in the Grey Book, their appropriateness, and what they describe, is not in doubt.  It is no part of the appellants’ case to say that there have been drafting errors, or that the Grey Book does not mean what it says.  The dispute is, and is only, not as to the meaning but as to the scope of the Grey Book; that is, whether the contractual duties it imposes on the fire fighters extend to co-responding as well as to their other tasks that are specifically mandated in the Grey Book.  

12.	In order to find that out we have to look at two sources: the factual matrix of the agreement as referred to by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1384 to 1386; and, secondly, what the Grey Book says about itself.  So far as the factual matrix is concerned, we are concerned with the circumstances in which the words we used and the object appearing from those circumstances that the parties must have had in view.  

13.	Looking at the factual matrix to the agreement that is contained in the Grey Book, in my view three things stand out.  The first is the terms in which the settlement of the 2002/2003 dispute was announced. Those have already been set out in the quotation from the joint statement that I have taken from the judge’s judgment.  Those terms, which were then taken into the preface to the Grey Book, overwhelmingly assume that the duties are concerned with fire fighting, rescue and attendance at major incidents.  In his paragraph 53, the judge regarded that as an important part of the context and he was right to do so. 

14.	Secondly, the judge recorded that the Fire Brigade Union has a position of long‑standing opposition to co-responding as being part of the fireman’s obligations.  I regard that factor, as did the judge, as a legitimate part of the factual matrix in which we have to understand the Grey Book, and not just as being a negotiating stance or statement of intention that we are not allowed to look at.  The judge dealt with this in his paragraphs 54 to 56, recording the national policy of the FBU and saying that it had been reaffirmed shortly before any amendments of the Grey Book were agreed.  It seems to have been suggested to the judge that, despite that position, those negotiating on behalf of the Fire Brigade Union had in fact given their agreement to a contract which, without actually saying so, commits their members to taking part in co-responding.  The judge robustly rejected that view in his paragraph 56, and what he said merits being set out.  He said this:

“I have seen and heard the FBU negotiators. They are, in my judgment, men who read small print and are alive to any disadvantage that might accrue to the membership.  I am quite satisfied that the settlement of the pay dispute did not concede the issue on co-responding.  If they had conceded that issue there would, in my judgment, have been a clear reference to that fact in the Grey Book.”

15.	It was legitimate for the judge to take that view, because he was addressing an argument which said that although co-responding is not mentioned in terms in the Grey Book, it must be taken to have been mentioned inferentially.  His view of the posture of the Fire Brigade Union and the factual history with which they came into negotiations was a legitimate matter for him to take into account in deciding whether indeed the agreement had that meaning.  

16.	Third, I do not hesitate to say that, as a matter of common sense and impression and general experience, co-responding in the sense that it is used in this case, standing in for the ambulance service at an accident to which the ambulance service but not the fire service has been called, is simply not what fire fighters are ordinarily expected to do. If that duty is to be imposed on them, that is to say to attend a purely ambulance incident in circumstances where the ambulance service attending cannot get there first, then the background and history of this matter looks for that to be done expressly and not by inference.  

17.	What of the terms of the Grey Book itself?  The judge has already set out the terms of the preface, but they merit repetition:

“The role of local authority Fire and Rescue Services in the United Kingdom is the reduction of loss of life, injury, economic and social cost arising from fire and other hazards.”

18.	Mr Goudie suggested, as I understood it, that “other hazards” could encompass purely medical emergencies such as would be attended by the ambulance service. Looking at the sentence as a whole I did not find that submission persuasive.  Second, the roles, responsibilities and contractual obligations are said to be formed by looking at the Role Maps which are incorporated in the Grey Book.  The judge set out the relevant sections of the Grey Book again in his judgment:

 “Section 3 of the Grey Book relates to roles and responsibilities and is so headed.  The relevant paragraphs are 1, 5 and 6.  They read as follows:

‘1.	The roles of Fire and Rescue Service employees are those defined within the integrated personnel development system and set out in accredited occupational standards determined by the Emergency Fire Services Vocational Authority considers necessary and specific activities within those roles will be determined by the Authority to meet the local needs of the Service based on risk.

‘5.	Fire and Rescue Authorities can use whichever roles they consider necessary.  Specific activities within roles will be determined by the Authority to meet the local needs of the Service based on its integrated risk management plan…

‘6.	The units of competence that form each of these roles are laid down in the NJC document ‘Fire and Rescue Services Role Maps’.  Fire and Rescue Authorities can require any reasonable activity to be carried out by an individual employee within his or her Role Map.  These Role Maps reflect Fire and Rescue Service responsibilities incorporated into local integrated risk management plans in order to…develop and maintain effective partnerships with a range of agencies in the public, private and voluntary sectors where these can deliver cost-effective improvements in community safety.

“To discover the detailed contractual obligations it is thus necessary to examine the relevant parts of the Role Maps.  The National Occupational Standards referred to in the Grey Book comprise a number of units for each grade.  For the fire fighter the section runs to nearly 40 pages.  The headings for each unit for a fire fighter are:

1.	Inform and educate your community to improve awareness of safety matters;

2.	Take responsibility for effective performance;

3.	Save and preserve endangered life;

4.	Resolve operational incidents;

5.	Protect the environment from the effects of hazardous materials;

6.	Support effectiveness of operational response;

7.	Support the development of colleagues in the workplace;

8.	Contribute to fire safety solutions to minimise risks to your community;

9.	Drive, manoeuvre and re-deploy Fire Service vehicles.

“Each unit is sub-divided and sometimes descends to considerable detail about the role and responsibility required of the fire fighter.  By way of example unit 4 headed “Resolve operational incidents” is broken down thus:

‘FF4.1	Control and extinguish fires.  This element refers to your ability to work as a team member to respond to emergencies involving fires.  You will be required to apply your skills and use appropriate equipment to contain and extinguish fires.

‘FF4.2	Resolve incidents other than those involving a fire or hazardous materials.  This element refers to your ability to work as a team member, to respond to emergency, non-emergency or special services, such as lock-ins, lock-outs, pump-outs, emergency provision of water, support to other agencies for potential incidents, stand-by for potential life risk.

‘FF4.3	Support people involved in an operational incident.  This element concerns your ability to provide both physical and emotional support to people directly and indirectly involved in an operational incident.  This will include reassuring and comforting people, protecting their privacy and dignity, maintaining security at the scene of and incident and liaison with other agencies.’

“The competences are there clearly stated.”

19. As I have said, there is no mention of co-responding; if it is there, it is only there by inference.  At least before the judge, the appellants relied in particular on unit FF3, concerned with saving and preserving endangered life. That again I can set out from the judge’s judgment:

“FF3.1 Conduct a search to locate life involved in incidents. This element concerns your ability to search for people who are in some form of difficulty or danger through involvement in an incident. This may include searches in a range of locations at hazardous environments, usually as a team member.

"FF3.2 	Rescue life involved in incidents. This element concerns your ability to move endangered people to a place of safety. This may include extrication using relevant equipment, releasing a trapped person, moving conscious and unconscious people to a place of safety.  You may also be involved in the rescue of trapped animals.

"FF3.3	 Provide treatment to casualties. This element concerns your ability to administer immediate treatment to casualties, to assist with stabilisation of the casualty's condition and preservation of life. The level of treatment you provide will be within the limits of the training you have received in line with your organisational policies and will aim to prepare casualties for handover to appropriate agencies. This will include basic life support and casualty handling.

"FF3.4 Support people involved in rescue operations. This element concerns your ability to provide both physical emotional support to people directly and indirectly involved in a rescue incident. This will include reassuring and comforting people, protecting their privacy and dignity, maintaining security at the scene of an incident and liaison with other agencies. This element includes dealing with deceased.”

20. FF3.3, on which reliance was particularly placed, certainly expects a fire fighter to be able to provide treatment to casualties.  But two things must be said about that.  First, as Mr Goudie himself indeed said, that passage is about the competences expected in performing the job, whatever it may be. It does not follow that casualty treatment is thereby made an obligation separate from the rest of the job.  Second, FF3.3 has in any event to be read in context.  The context is all about attending at major incidents as envisaged in the preface to the Grey Book, and not at all about directly taking the place of the ambulance service until the ambulance service has itself arrived.  The judge with respect summarised the effect of FF3 entirely accurately in his paragraph 64.  He said this:

“The unit refers, in my judgment, to the role of the fire fighter when he or she attends an incident at which the fire and rescue service is best fitted to act as the primary agency to save and preserve endangered life. The role under FF3.1 is to find the person or people involved in the incident. Having done so, the role under unit FF3.2 is to rescue the person found, whether from a burning house or the crashed car or otherwise.  Under FF3.3 the role is to treat the person rescued. Finally, FF3.4 identifies the role supporting those involved in the search, rescue and treatment operations. That was how the unit struck me when I was first introduced to it on the opening morning of the trial.  After four days of evidence and argument I remain firmly of that view.” 

21. Over and above those arguments of interpretation and construction, the appellants advanced a number of wider arguments.  First, the judge was criticised for not giving force, as part of the relevant background to the national statutory provision for permission and encouragement of co-responding, to the fact that, as we have seen, it would be lawful for local authorities to introduce co-responding by their statutory powers; and also various encouragements on the part of national guidance to introduce such measures.  The statutory provisions are to be found in Section 3 E of the 1947 Act and Sections 11, 12 and 21 of the 2004 Act already referred to.  

22. In my judgment, however, the judge was right to see these as what were described in his paragraph 82, ambitions or aspirations held by the government and by higher management within the fire authorities.  They are not agreed by the Fire Brigades Union or by individual fire fighters.  As such, they are in my judgment unilateral statements of subjective intent, excluded from consideration by Lord Wilberforce, and confirmed as excluded by Lord Hoffman in his principle 3. They cannot drive to a conclusion as to the meaning of this contract which is otherwise not available.  

23. Secondly, it was submitted that the clear wish of the government was that local authorities should do something about, putting it broadly, co-responding. But what they had to do in the contractual circumstance in which they found themselves was to persuade their employees to a change in the agreement that at the moment stands in the way of the employees being required to act as co-responders.  Mr Goudie stressed not only that the various agreements required the fire fighters to obey the lawful instructions of the employees, but that generally there was an obligation on an employee to obey his employer’s instructions and to cooperate in the work that the employer wished him to do. That of course is all uncontroversial, but the employer can only give instructions to his employee to do that which the contract requires the employee to do.  Otherwise, it is not a question of the instruction being lawful or unlawful, but rather that the tasks are not open to the employer to require of his employee.  

24. That line of argument took us to an authority upon which Mr Goudie relied; Cresswell v the Board of Inland Revenue [1984] ICR 508.  The issue in that case was the wish of the Board of Inland Revenue to introduce a computer system known as COP which, put shortly, computerised the administration of the PAYE scheme.  The employees, clerical and other employees engaged in tax offices engaged in the administration of that scheme, effectively said, or are thought to have said, that their contract entitled them to continue to use manual methods in operating the scheme.  The head note, it is agreed, accurately sets out the nub of what the judge said in dismissing  the claim:

“An employee was expected to adapt to new methods and techniques in performing his duties provided the employer arranged for him to receive the necessary training of the new skills and the nature of the work did not alter so radically that it was outside the contractual obligations of the employee.  But it was a question of fact whether the introduction of the new methods and techniques altered the nature of the work to such a degree that it was no longer the work that the employee had agreed to perform under the terms of his contract and that, although the introduction of COP changed the way the plaintiffs performed their duties, they were still administering PAYE and performing the duties of tax officers which, in any event, could be varied under the terms of the their contract.”

Therefore it was a question of fact whether the employees were still doing the same job, and whether the obligation of cooperation required them to obey instructions to use new methods.  Walton J found on the facts that “the job” was administration of the PAYE system.  That had always been the job, and that was what the employees were continuing to be required to do, albeit that they were being required to do it not, as the judge rather graphically said, by horse and buggy methods, but by methods that were more efficient and up to date.  

25. Now in our case the judge in my view would have been entitled to find as a fact, and I think he probably did, that the introduction of co-responding changed the job rather than changed the way of doing the job.  But in addition he correctly found against this argument on a more fundamental ground, that co-responding was not a new way of doing fire fighting but it was not fire fighting at all as the contract understood it.  That was for the reasons already set out in detail by him and repeated by me.  I would accept as correct what the judge said in his paragraph 59:

“As it seems to me, the distinction between Cresswell and the present case is that in Cresswell it is the method by which the work was to be performed was to be changed, not the actual nature of the work itself.  In corresponding, the Fire and Rescue Services are not acting as fire fighters at all.  There is no incident calling for their special skills and qualities in the field of fire and rescue.  There is no fire, there is no accident, there is no hazard, there is no missing person and there is no rescue. They are deployed because they can get to the medical emergency quickly and have a raised level of skill in performing medical interventions.  I have no doubt that it is a very valuable and worthwhile use of their expertise but it is essentially the job of a paramedic or an ambulance crew.”

26. Those considerations dispose of the main issues in the appeal.  There are, as I have said, two particular issues -- one for each appellant -- that have additionally been raised.  I do not intend to go through these in detail.  They are set out clearly and in full in paragraphs 43 to 46 of the appellant’s skeleton. They both turn on particular terms in the contracts which require cooperation or the obeying of orders of superior officers. They do not raise separate points because each of them assume what has to be proved in the main case, that the ambit of the fire fighters’ contract extends to co-responding.  For the reasons that I have stated, that is not so; so the contracted right of an employer to require various generally stated actions does not extend to a right to require performance of those actions as part of co-responding.

27. I would therefore dismiss both of these appeals, substantially for the same reason as the judge found in what was, if I may respectfully say so, a full and impressive and, I would add, extempore judgment delivered at the end of a four day trial.  I would also adopt what the judge said at the end of his judgment, which I would venture to repeat:

“No one could listen to the evidence in this case, particularly that of Dr Yvonne Owen, the clinical director of Lincolnshire Integrated Voluntary Emergency Service, and Mr Marwood of the East Midlands Ambulance Service NHS Trust without recognising the importance of co-responder schemes.  They are crucial to better survival rates from patients sustaining cardiac arrests in the community.  The FBU acknowledges as much. If I had been able to construe the contractual documents to require participation in such schemes by fire fighters, I should have unhesitatingly have done so.  The benefits are abundant and are clear. I am, however, constrained by the cannons of construction on the facts as they are presented to me.  

“No such constraints bind the FBU.  I express the earnest hope that there will be no triumphalism after this judgment.  Rather I hope that there will begin yet further determined efforts to find a way in which the benefits of co-responding by the Fire and Rescue Services can be achieved in a spirit of co-operation between all parties.  If that does not happen, not only will the country be poorer for it but the reputation rightly enjoyed by fire fighters for their courage, bravery, skill and selflessness will be inevitably tarnished. That would be much to be regretted.”

I respectfully agree with those sentiments of the judge.

Lord Justice Toulson:  

28. I agree.

Sir Anthony Clarke, MR:  

29. I also agree and do not wish to say anything on the legal issues.  I only wish to add a word on the point to which Lord Justice Buxton has just referred.  I take the expression “co-responding” to mean, as my Lord, Lord Justice Buxton has put it, standing in for the ambulance service in circumstances where the fire and rescue service can render services more immediately than the ambulance service could render them.  It is common ground that co-responding on the part of the fire and rescue service is of great benefit to the public and is likely to save lives. In these circumstances I cannot believe that both the fire fighters and the FBU on the one hand and the Fire and Rescue Services on the other do not wish to reach a voluntary agreement under which co-responding services can be provided to the public in the future.  It is surely long past that a time for such an agreement to be reached. I urge the parties to reach agreement for the future as soon as may be.  The result of the appeal is that the appeal is dismissed.  

Order:  Appeal dismissed.