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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bourne Rail Ltd & Anor v Ashton & Ors [2018] EWHC 910 (QB) (26 April 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/910.html Cite as: [2018] EWHC 910 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 April 2018

Judgment on Counterclaim

His Honour Judge Forster QC:

1. By way of Counterclaim the First Defendant claims that he was wrongfully dismissed by the First Claimant so that he has suffered loss and damage.
2. The First Defendant was employed by the First Claimant as their Managing Director.
3. Under clause 12 of his Contract of Employment the First Defendant was entitled to 3 months notice if his employment was to be terminated by the company.
4. By letter dated 30 October 2017 the First Claimant terminated the employment of the First Defendant with immediate effect and without notice or pay in lieu of notice.
5. On behalf of the First Defendant it is asserted that the immediate termination amounted to a repudiatory breach of contract which the First Defendant accepted by letter.
6. The claim is made in the sum of £31,184.61 which is made up of the loss of salary, car allowance and accrued holiday.
7. In the Judgement given on 26 January 2018 I made specific findings in respect of the actions of the First Defendant.
8. At paragraph 343, I found that the email sent on 29 June 2017 by the First Defendant to Mr Hall created a false impression in that it did not accord with what had taken place. The First Defendant had been in repeated contact by telephone with Mr Hall. On the day upon which the email was sent the First Defendant had been in contact with Mr Hall.
9. In his evidence the First Defendant was unable to offer any reasonable explanation for his writing of the email. In my judgment it had been sent to create a false impression.
10. I also found that the First Defendant had failed to share with Mr Shipley essential information concerning business opportunities which were being sought on behalf of the company.
11. Because the parties could not anticipate the findings I would make I gave the parties the opportunity to make a further submission before giving judgment on the Counterclaim.
12. The First Defendant held a very important position within the company and as such was required to pursue the best interests of the First Claimant.
13. Under the terms of his Contract of Employment the First Defendant was required to faithfully and diligently perform his duties, to use his best endeavours to promote the interests of the company and to keep the Board promptly and fully informed of his conduct of the business or affairs of the company.
14. The First Defendant, as Managing Director, also owed implied duties of loyalty, fidelity and diligence. These were high duties in accordance with his very important position.
15. The Contract of Employment provides, at paragraph 12.2, for immediate dismissal in specified circumstances. The specified acts include acts of gross misconduct, acts of dishonesty and conduct which in the reasonable opinion of the Board brings him into disrepute.
16. It has long been established that in an action for wrongful dismissal it is possible to justify the dismissal by reference to conduct of the employee of which the employer was unaware at the time of the dismissal.
17. In this case it is necessary to have careful regard to the procedural history. The Claimants requested leave to serve an Amended Reply to the Defence on behalf of the First Defendant and a Defence to the Counterclaim.
18. Counsel on behalf of the First Defendant served a skeleton argument dated 20 November 2017. In the skeleton it was indicated that the First Defendant would agree to the amendments on the basis that the Claimants restrict their case,in respect of the dismissal, to the facts and matters relied upon in the Amended Particulars of Claim.
19. When the application was made in Court I was concerned that the issues should be contained. The Claimants had made a serious allegation against the First Defendant and there was a danger the Court could become consumed in considering many aspects of the First Defendant's employment.
20. I granted leave on the basis that the reasons for dismissal would be limited to the matters alleged against the First Defendant in the Amended Particulars of Claim.
21. The Claimants have been aware of their position throughout. The Claim had been drafted on a limited factual basis and this limited basis became their Defence to the Counterclaim.
22. In the Judgement on the Claim I consider each of the three matters upon which reliance is placed. They gave rise to no adverse finding against the First Defendant.
23. I find that it would be unfair to allow the Claimants to rely upon additional matters when the amendment was made on a clear basis and when the serious allegation forming the foundation of the Claim was not made out.
24. I reject the suggestion made on behalf of the Claimants that there should now be a further hearing or new trial in respect of the Counterclaim. At the beginning of the trial the position was clear and there must now be finality. It would not be proportionate to order any further hearing.
25. There must be Judgement for the First Defendant on the Counterclaim with costs to be subject to a detailed assessment if not agreed.