Nesbitt v Holt (of the Citizens Advice Bureau)

This is an appeal from the judgment of Patten J sitting at Newcastle upon Tyne in which he struck out the appellant’s action as an abuse of the process of the court. The appellant, Brian Nesbitt, had commenced an action against Mr Wilfred Holt, who, acting on behalf of the Citizens’ Advice Bureau (CAB) had represented Mr Nesbitt in respect of a claim under the Disability Disablement Act 1995 (DDA). The claim was compromised and Mr Nesbitt alleged that it had been compromised without his authority. At a hearing before a Chairman of Employment Tribunal (ET), Mr Nesbitt tried to have the compromise declared invalid. The Chairman held that Mr Holt had had ostensible authority to enter into a binding agreement of compromise. He added that, in his view, Mr Holt had also had actual authority to compromise the proceedings. Mr Nesbitt then sued Mr Holt alleging that he had compromised the proceedings without actual authority but Patten J held that, in the light of the Chairman’s finding on actual authority, the new proceedings were an abuse of process. Rix LJ granted permission to appeal to this Court.

In 1994, the appellant began to work for Dunlop Tyres Ltd (Dunlop) at their factory at Washington, Tyne and Wear. He worked on the shop floor. In either 2000 or 2001 (it matters not which for present purposes) the appellant was assaulted and suffered a serious head injury. The lasting effects included a form of epilepsy which made him permanently unsuited to work on the shop floor. He also suffers from problems of concentration. He was off work completely until March 2002. During that time he had undergone rehabilitation with Rehab UK and retraining for an administrative position. In March 2002, Dunlop agreed with Rehab UK to provide the appellant with administrative work for a trial period of six months. The salary was stated to be £14,500 per year. This trial of work proved unsatisfactory for both sides. The appellant claimed that he was being put under too much pressure to complete tasks. The employer denied this and claimed that it had no other work to offer the appellant. In early 2003, the employer suspended the appellant from work, saying that it had no work for him, which he was fit to undertake.

In April 2003, the appellant commenced proceedings under the DDA in the ET alleging that employer had failed to make reasonable adjustments to take account of his disability. At an early stage after commencing proceedings, the appellant had a discussion with Mr Barry Colman of the Advice, Conciliation and Arbitration Service (ACAS). Although it was initially thought that his trade union would represent the appellant in these proceedings, that did not happen and the appellant was put in touch with the Gateshead CAB. Mr Wilfred Holt was assigned to him as caseworker. A document of authority which Mr Nesbitt signed on 17^th July 2003 stated that Mr Holt was to represent Mr Nesbitt at the ET and that he (Mr Holt) considered there to be a possibility of presenting a case. There were to be further meetings to discuss the response put in by the employer to the claim. It appears that the two men met again on 23^rd July. On 12^th August, there was a directions hearing. Mr Holt attended with Mr Nesbitt and represented him. After the hearing, Dunlop’s representative Mr Trevor Gibson approached Mr Holt to discuss a possible settlement. Mr Nesbitt and Mr Holt discussed the case briefly afterwards.

On 14^th August, 2003, Mr Holt was contacted by Ms Abraham, a solicitor from Wragge and Co, instructed by Dunlop. She wished to explore the possibilities of settlement. According to her attendance note of their discussion (the accuracy of which Mr Holt did not appear to dispute at the ET hearing to which I will come in due course), Mr Holt told Ms Abraham that Mr Nesbitt was worried about his inability to keep up his mortgage payments if he lost his job and felt that it would be difficult for him to get another job on account of his disabilities. He was also of the view that, if he won his DDA case, Dunlop would have to find a job for him. Ms Abraham told Mr Holt how Dunlop saw the case; they thought they had a strong case by which to defeat the DDA claim but, even if Mr Nesbitt won, the compensation would be small. Apparently, Mr Holt said, off the record, that he agreed with Ms Abrahams’ assessment of the case but he could not get Mr Nesbitt to see it in that way.

A little later in the discussion, according to Ms Abraham’s note, Mr Holt told her that, after the directions hearing on 12^th August, he had advised Mr Nesbitt that he had a weak case and should consider settling. He said he had just written to Mr Nesbitt and intended to telephone him the next day to see if he had changed his mind. There was then some further discussion about the strength of Dunlop’s case. Mr Holt asked whether Ms Abrahams could say what Dunlop had in mind as a settlement figure; she did not but would take instructions. She added that Dunlop would probably be prepared to make an increased offer on the basis that Mr Nesbitt would accept the immediate termination of his employment. She told Mr Holt that Dunlop’s view was that when the DDA proceedings were over, they would have to proceed to termination of his employment; they did not think that they would be able to find him anything suitable and they could not keep him on the payroll indefinitely. Apparently Mr Holt expressed agreement with what Ms Abraham had said. He promised to speak to Mr Nesbitt and report back to her. Ms Abraham said that the amount that the company would be minded to offer would depend to some extent on what they would have to spend on costs to fight the case and would be reduced by any amount that they had already had to spend. She impressed upon him that much would have to be done by the following Friday when bundles had to be exchanged. This was plainly intended as an encouragement to obtain instructions to settle quickly.

The following day, 15^th August, Mr Nesbitt and Mr Holt discussed the situation for about three hours. There may be a dispute as to what was said at that meeting. Mr Nesbitt is adamant that he made it plain at that meeting that the one thing he was not prepared to do was to give up his job voluntarily. It appears from Ms Abraham’s attendance note of the telephone conversation she had with Mr Holt soon after this meeting had finished, that Mr Nesbitt had said that it would be difficult for him to find another job and that, if he were to leave Dunlop, he would need at least a year’s pay to act as a ‘buffer’ to tide him over until he could find another job. Mr Holt told Ms Abraham that he had been very clear in telling Mr Nesbitt that, at some point, Dunlop would take steps to end his employment on capability grounds. He said that Mr Nesbitt seemed to grasp this. Mr Holt then said that he ‘was convinced’ that Mr Nesbitt would settle the DDA claim for about £5,000 but that he would want a further sum before he would give up his employment. Mr Holt suggested that the total would need to be of the order of £11,000, which would amount to about a year’s salary. Ms Abraham thanked him for his help and said she would take instructions and contact him first thing on Monday (that would be Monday 18^th August).

On the Monday morning, there were apparently three conversations between Ms Abraham and Mr Holt which culminated in an offer of £9,000 in settlement of the DDA claim and on the basis that Mr Nesbitt would give up his employment forthwith and bring no claim in respect of its termination. It is common ground that Mr Nesbitt and Mr Holt did not meet to discuss this offer; they spoke on the telephone. What was said is in dispute. Mr Holt claims that Mr Nesbitt agreed to the settlement. Mr Nesbitt says that he did not. Mr Holt told Ms Abraham that the offer was accepted.

Ms Abraham and Mr Holt reduced the agreement into writing and both signed on behalf of their respective clients. For the settlement to be binding, it had to be recorded on a form COT3, completed by an ACAS officer. Mr Holt was going away on holiday that evening and there was some urgency in completing the formalities. Ms Abraham faxed the written agreement to ACAS in the late afternoon of 18^th August. The ET was informed that the case had settled and the hearing date could be vacated. Later, the COT3 form was completed and eventually signed by Mr Holt and Ms Abraham. It is common ground that Mr Nesbitt never saw the agreement in written form and did not see the COT3 until several days after the agreement had been finalised and was binding upon him.

On Thursday 21^st August, Mr Nesbitt telephoned Ms Abraham. He knew that Mr Holt was away on holiday. His case is that he believed that witness statements for the forthcoming DDA tribunal hearing had to be exchanged on the following day. He asked Ms Abraham about the exchange. She told him that there was no need to do that as the case had been settled. There is a dispute as to what Mr Nesbitt said in response. He claims that he expressed surprise. In any event, after that, Mr Nesbitt telephoned both the ET and the CAB and was told that the case had settled. On Mr Holt’s return there was a conversation between him and Mr Nesbitt about which there is a difference of view.

Early in September Mr Nesbitt received a cheque for £9,000. He put the money into the bank and used it. He was later to tell the ET that he had to do so in order to avoid starvation. He declined to send to the CAB the receipt they had asked him to sign.

In November 2003, Mr Nesbitt was in touch with the CAB alleging that his claim had been settled without authority. Some time later, he contacted the ET and requested the reinstatement of his DDA claim. After a number of preparatory hearings, the issue of the validity of the settlement was determined at a hearing described as a ‘Prehearing Review’. This took place on November 2004. Mr Nesbitt was unrepresented. Mr Holt appeared as a witness for Dunlop. He gave evidence about the negotiations he had had with Ms Abraham and his discussions with Mr Nesbitt. He asserted that, not only had he ostensible authority to sign the agreement on Mr Nesbitt’s behalf, he also had actual authority to do so. No one appears to have given any thought to the question of whether the evidence of his discussions with Mr Nesbitt breached the latter’s rights of privilege or confidentiality. Mr Nesbitt told us that he explained to the ET that he did not understand the concept of ostensible authority but he asserted that he had never agreed to give up his job. He did agree that he had told Mr Holt that, if he were dismissed by Dunlop and had to go to an ET, he would be prepared to settle that claim for a year’s pay. But he had not agreed to compromise his DDA claim and give up his job for £9,000.

Most of the Chairman’s decision following the ‘prehearing review’ dealt with the issue of ostensible authority which was plainly the issue of direct relevance to the decision he had to make. He held that Mr Holt had ostensible authority to enter an agreement with Dunlop. Therefore so far as Mr Nesbitt’s claim against Dunlop was concerned, it had been finally and bindingly compromised. The ET had no jurisdiction to hear Mr Nesbitt’s claim under the DDA. (No issue arises about ostensible authority in the current proceedings.) In the context of the ET proceedings, it was not necessary for the Chairman to go on to consider whether Mr Holt had actual authority to compromise his DDA claim and any future claim he might have had arising out of the termination of his employment. However, he said that, because the issue had been ventilated before him he would do so. He held that Mr Nesbitt had been told of the terms of settlement and that he understood and accepted them. Mr Nesbitt was ordered to pay Dunlop’s costs, on the basis that he had acted unreasonably in attempting to put the proceedings back on their feet.

Mr Nesbitt did not accept that he had given Mr Holt authority to compromise his claims and, on 2^nd August 2005, he commenced a high court action against the CAB. The claim form alleged professional negligence. The particulars of claim, drafted by Mr Nesbitt himself, alleged that Mr Holt had signed a COT3 agreement without his knowledge. Mr Nesbitt alleged that Mr Holt had lost interest in representing him at the ET and that this amounted to professional negligence and misrepresentation. He alleged that if the CAB had not wrongfully signed the COT3 settlement, he would have proceeded to a hearing at the ET. Moreover, he would have still been employed by Dunlop. Although he did not put it quite this way, it is clear that he was alleging that his loss was the loss of the opportunity to enforce his employment rights.

The defendant entered an appearance and immediately applied to strike out the claim on three grounds: first as an abuse of the process of the court; second on the ground that the claimant had no reasonable grounds for bringing the claim (CPR 3.4(2) (a)); and third on the ground that the claimant had no reasonable prospects of success (CPR 23.2(a). Quite properly, the defendant did not file a defence but put in a statement prepared by the solicitor instructed, to which was exhibited a witness statement from Mr Holt and the decision of the Chairman of ET. Mr Nesbitt filed a statement in response to which he exhibited several documents, including the record of his original interview with the CAB on 17^th July 2003, a letter dated 17^th February 2004 from Swinburne & Jackson, which was a response to Mr Nesbitt’s complaint about Mr Holt’s handling of his case and also Ms Abraham’s attendance notes, which had come into his possession in the course of the ET proceedings and to which I have referred extensively in my exposition of the factual background.

The defendant’s application came before Deputy District Judge Watson who gave judgment on 15^th February 2006. He dismissed the defendant’s applications, holding first that the continuance of the claim was not an abuse of process, on the contrary it would be unjust to prevent him from so doing. He cited the relevant authorities and noted, inter alia, that this was not a case in which the defendant could claim that it had been harassed more than once in respect of the same litigation. It had not yet been sued at all in respect of its conduct of Mr Nesbitt’s case. In concluding that the new proceedings were not an abuse of process, DDJ Watson took account of the interest of the parties and the public interest in the finality of litigation. He also took into account the fact that Mr Nesbitt had been unrepresented at the ET hearing and that although the chairman had said that he had taken Mr Nesbitt’s disability into account so far as he was able, it did not appear to DDJ Watson that the ET had had any clear evidence as to the nature and extent of Mr Nesbitt’s intellectual impairment.

The deputy district judge dealt with the second and third grounds of the application by holding that, on the face of it, the claimant had lost his right to litigate his DDA claim and an unfair dismissal claim in the event that he were to be dismissed by Dunlop. As to the issue of authority, it would be Mr Holt’s word against Mr Nesbitt’s. The defendant had not put any evidence before him to enable him to assess the merits and value of the claimant’s employment claims. The burden was on it to show that the claim had no reasonable prospect of success and it had failed to discharge that burden. Although the claimant’s pleading was ‘rather vague’ it was not so vague as to cause him to say that there was no reasonable cause of action.

The defendant appealed and the appeal came before Patten J on 14^th July 2006. On this occasion, Mr Nesbitt was presented by counsel on a pro bono basis.

In his judgment, Patten J observed that the main issue in the current proceedings was whether Mr Holt had had actual authority to compromise Mr Nesbitt’s employment rights in the way that he did. That he said involved the resolution of a conflict of evidence about what had been said between the parties in relation to the offer of £9,000. He noted the CAB’s submission that this issue had been determined by the ET in its favour. It would be an abuse of process to allow Mr Nesbitt to relitigate this issue. The CAB had not submitted that the decision of the ET created an issue estoppel because it had not been a party to the ET proceedings. However, the proceedings against the CAB amounted to a collateral attack on a court of competent jurisdiction.

The judge then reviewed the relevant authorities, beginning first with Johnson v Gore Wood and Co [2002] 2 AC 1, where the House of Lords considered the circumstances in which the litigation of an issue, which could have been raised in earlier proceedings between the same parties, might constitute an abuse of process. He cited a number of important passages from the speech of Lord Bingham of Cornhill and also passages from judgments in other cases, such as the well known passage from Henderson v Henderson [1843] 3 Hare 100, where the Vice Chancellor said :

Having reviewed these authorities, Patten J sought to apply them to the facts of the present case. He said that both Mr Nesbitt and Mr Holt had been able to give evidence before the ET. He said that there was no real suggestion that Mr Nesbitt had been unable to set out his side of the story due to any medical or health problems which had particularly affected that hearing. His evidence would or ought to be the same if the present action were to be allowed to proceed. Therefore there would be, he said, ‘a potential trial of the very same issue on precisely the same evidence’. He acknowledged that Mr Nesbitt had been unrepresented at the ET but he said that what was in issue was a simple question of fact. He considered that to allow Mr Nesbitt to run the same issue again would be to invite the High Court to reach a different conclusion on the same evidence as that used by the ET to reach its decision. He expressed the view that there had to be some justification for allowing that to happen other than Mr Nesbitt’s dissatisfaction with the outcome of the ET’s proceedings.

A little later in the judgment, Patten J considered the position of the CAB. He observed that, if the current proceedings were to continue, the CAB would ‘be required to devote further time and effort in dealing with an issue which has already been comprehensively investigated in evidence in the tribunal proceedings’. He said that it was not alleged that the tribunal hearing had been unfair and added:

Before this Court, Mr Nesbitt, the appellant was, once again, unrepresented. The Court was concerned that, despite the fact that Rix LJ had granted permission to appeal, Mr Nesbit had been unable to obtain representation. We were satisfied that he had made extensive efforts. Undesirable though we thought it was for a man with Mr Nesbitt’s disabilities to have to act in person, we decided that there would be no point in adjourning the appeal in the hope that he would find someone willing to represent him. We decided that we must proceed and Mr Nesbitt agreed. In the event, given time to express himself, Mr Nesbitt was able to explain his point of view to us quite clearly. However, he frankly admitted that he had no knowledge of the law. For example, he told us that he still did not understand the difference between ostensible and actual authority. More to the immediate point, he was not able to submit reasons why, from a legal standpoint, Patten J’s decision was wrong. He addressed us only on the facts. He was adamant that he had not agreed to accept £9,000 for his employment rights. He proffered his explanation as to why he had used the £9,000 while still contending that his claim had not been settled. He explained how difficult the ET hearing had been for him. He was convinced that the ET’s decision that he had agreed to the settlement was wrong and he did not think it was fair to stop him from suing the CAB.

Miss Jeram who appeared for the CAB provided helpful and succinct submissions. She sought to support the decision of Patten J. He had directed himself correctly according to the authorities and his application of the law to the facts of the case was unimpeachable. She did, however, recognise that the cases cited by the judge were concerned primarily with the situation which arose where one party tried to litigate an issue which either had been raised in a different form in previous litigation between the same parties or should have been raised in previous litigation. Here, as she accepted, the CAB and Mr Nesbitt had not been involved in any previous litigation. But, she submitted that the correct test must be the ‘broad merits-based’ approach advocated in Johnson v Gore Wood. She referred the court to two recent authorities, Gribbon v Lutton & Luttons Dunford [2002] QB 902 and Simms v Conlon and Harris [2006] EWCA Civ 749. We were grateful to her for drawing our attention to these cases although we did not find them of particular assistance, save in one respect. In Simms the court was concerned with the effect of a finding of dishonesty against a solicitor by a Solicitors’ Disciplinary Tribunal (SDT) upon the issues arising in a claim against that solicitor for fraudulent misrepresentation. The defendant solicitor denied any dishonesty. The claimants sought to argue that this denial was an abuse of process. The facts of Simms were obviously very different from the facts here. However, perusal of the report led us to a statement of the law of Sir Andrew Morritt VC in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, which appears to be relevant to the argument raised in the instant case that to allow Mr Nesbitt’s claim to proceed would be to allow a collateral attack on the finding of a court of competent jurisdiction. At paragraph 38 of his judgment, Sir Andrew Morritt said:

It seems to us that that passage helpfully emphasises where the onus lies in a case in which a party alleges that the litigation is an abuse of process but there has not yet been any litigation between the parties. Indeed, Lord Bingham had made it plain that the onus lay on the party alleging abuse even where there had been litigation between the parties. In those cases, he said that there should be a ‘broad merits-based judgment’. But in the present case, there has been no previous litigation between the parties and it seems to us the onus lying on the party alleging abuse is substantially heavier as a result. Bairstow shows that, where there has been no other litigation between the parties, there will only be an abuse of process if it would be manifestly unfair to the defendant to allow the action to proceed. Patten J quoted extensively from Johnson and cases like it but did not have his attention drawn to Bairstow. True it is that he reminded himself that Mr Nesbitt and the CAB had not litigated before but he then seemed to assume that because the issue of actual authority had been previously determined by the ET, the onus was on Mr Nesbitt to show why his action was not an abuse. In any event, the judge certainly did not apply the test in Bairstow.

In any event, we are of the view that the judge misdirected himself on the facts. He stated that, if the action proceeded, the issue of actual authority would be a trial of the same issue on the same evidence. With respect that is not necessarily so. The CAB had not given any discovery of documents at the time of the ET decision. Indeed, it still has not done so as that stage has not been reached in the present action. The court cannot know what the evidence might be at the hearing of the civil action. True it is that Mr Nesbitt’s evidence in chief will or ought to be the same as it was at the ET hearing; so ought Mr Holt’s. But what light might be thrown on their evidence by the discovery of documents in the current action is quite unknown.

Further, in paragraph 30 of his judgment, Patten J said that if the current proceedings were allowed to proceed, the CAB would have to devote further time and effort in dealing with an issue which has already been comprehensively investigated in tribunal proceedings. With respect to the judge, he seems there to have overlooked the fact that the CAB has not been involved in any litigation up to now. Mr Holt appeared as a witness for Dunlop at the ET supporting their attempt to defeat Mr Nesbitt’s attempt to have his DDA claim heard on the merits. Presumably the CAB gave him permission to do that. If Mr Holt’s appearance before the ET caused the CAB to expend any time or other resources, it expended them of its own volition and not as the result of any compulsion emanating from Mr Nesbitt.

For the reasons we have given, we consider that the judge’s decision that these proceedings are an abuse of process was flawed. We propose to make our own decision on this issue. We apply the test in Bairstow and ask ourselves first whether to permit this action to proceed would be manifestly unfair to the CAB. We note first that the CAB has not been involved in any litigation at all arising out of these events. All that has happened so far is that the CAB has had to investigate Mr Nesbitt’s complaint, brought under its own procedure; that did not involve litigation. As we have just said, any CAB time or effort expended on the ET proceedings was entirely voluntary. Further, we do not consider that the issue of actual (as opposed to ostensible) authority, which was not a necessary issue for decision by the ET, has been determined on a proper inter partes basis. We consider that that issue cannot be properly decided unless and until there has been discovery in the present action. We are quite satisfied that it would not be manifestly unfair to require the CAB to defend this claim; indeed, we consider that it would be unfair to Mr Nesbit to prevent him from pursuing it.

We turn to the second aspect of the CAB’s original application, which was not dealt with by Patten J. Ought the claim to be struck out as having no real prospect of success? As DDJ Watson observed, the burden on this issue lies on the CAB. The issue of liability, which centres on actual authority, will be a question of whose evidence is accepted. Miss Jeram submitted that the claim would fail because, in a document before the court, Mr Nesbit had admitted that he had given Mr Holt authority to settle his claim for £9,000. We have seen that document and have heard Mr Nesbitt’s explanation for what he wrote. It does not appear to us that the words clearly bear the meaning that Miss Jeram would have us give them. We think that it would be open to the court hearing this action to accept Mr Nesbitt’s explanation. Miss Jeram also relied on the fact that Mr Nesbitt had spent the £9,000. That, she submitted, shows that he knew the case had been settled and amounted to an affirmation of the settlement. Mr Nesbitt has given us his explanation. It is not for us to accept or reject it. All we say that it is capable of being accepted. It appears to us that there are weaknesses in Mr Nesbitt’s claim which may defeat it. On the other hand, it seems to us that there are weaknesses in the CAB’s position which lead us to conclude that Mr Nesbitt’s claim is by no means hopeless. One of these is that Mr Holt was plainly aware of Mr Nesbitt’s brain injury and the disabilities under which he labours. That meant that it was the more important to ensure that he fully understood the terms of the proposed settlement. Second, it is a little odd that, if Mr Nesbitt did say that he would need a year’s salary if his employment were to be terminated, Mr Holt felt able to compromise both the DDA claim and the employment claim for £9,000. Third, the content of Ms Abraham’s attendance notes may be of real assistance to Mr Nesbitt. It would be open to a judge to take the view that Mr Holt was too anxious or even determined to effect a settlement. Taking those matters into account, we do not think that it could possibly be said that this claim has no real prospect of success.

Turning to the question of quantum, DDJ Watson properly applied his mind to the question of whether the claim had any potential value. He observed that the CAB had not adduced any evidence as to the value of Mr Nesbitt’s DDA claim or the value of a potential claim for unfair dismissal. That remains the case. It appears to us that this could not be described as a heavy claim but we could not say that it is of negligible value.

For those reasons, we conclude that Mr Nesbitt’s appeal must be allowed. The decision of Patten J will be set aside and the decision of the deputy district judge restored.