A2/01/1819
Neutral Citation Number: [2002] EWCA Civ 117
IN THE SUPREME COURT OF JUDICATURE                                   
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR W AYLEN QC sitting as a Deputy Judge of the Queen's Bench Division)

							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Monday 4 February 2002
B e f o r e:

LORD JUSTICE JUDGE

- - - - - -

COLIN KEATHLEY CORNELIUS
Claimant/Applicant

- v -

THE LONDON BOROUGH OF HACKNEY
Defendant/Respondent

- - - - - -

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - -

MR JOHN LLOYD acting pro bono on behalf of the Applicant.

The Respondent did not attend and was not represented.
- - - - - -
J U D G M E N T
1.	LORD JUSTICE JUDGE: On 26 October 2001 this application was removed from the list on the basis that the court's ADR scheme might help resolve the dispute between the parties. That has failed. I have read a bundle of correspondence. I cannot, and should not, enquire into the reasons why the ADR route failed. I mention that because Mr Cornelius has produced a further affidavit with a number of documents exhibited to it. If an ADR route fails, the court's jurisdiction is limited to deciding the issue before it.
2.	There is a separate question that arises from the papers (assuming Mr Cornelius' account of events is right) about what he perceives as a very serious grievance about the conduct of the defendant's solicitors. Mr Cornelius applies for permission to appeal the order made by Mr Walter Aylen QC, sitting as Deputy High Court Judge, on 27 July 2001, striking out the amended statement of claim and ordering Mr Cornelius to pay the respondent's costs. 
3.	At the date of the hearing before Mr Aylen it now emerges that, contrary to what I had understood, Mr Cornelius was aware of the fact that a payment had been made into court. That is demonstrated by the contents of a letter dated 11 July 2001. But the later material from him shows his very real continuing concern that the solicitors acting for the local authority were (and I use the term quite deliberately to identify the sense of grievance) “playing ducks and drakes” with the civil justice system. 
4.	I shall allow that to have no influence on the decision I have to make, which is whether there is a realistic prospect of a successful appeal or whether any other compelling reason to allow the application has been established. 
5.	The writ was issued on 29 June 1998 and amended on 28 April 1999. The events with which this litigation is concerned go back much further. Many of the crucial facts occurred before June 1992. They are sufficiently summarised in paragraphs 1 - 10 of the statement of claim. I do not propose to read those out, but they form part of this judgment. The facts pleaded in those paragraphs all redound to Mr Cornelius' credit. He had exposed what he believed were corrupt irregularities, and for his pains was then dismissed; as was subsequently found, wrongfully dismissed. 
6.	As Mr Aylen himself put it, in summarising this part of the case, Mr Cornelius acted properly and was treated, possibly offensively, and certainly in breach of contract. Similarly, Tucker J, giving the judgment of the Employment Appeal Tribunal, said that the plaintiff was not motivated by self interest or any improper purpose. “His motive was to bring to justice what he perceived to be, and what the defendants now acknowledge have been, corrupt irregularities”.
7.	In his approach to the factual matters, Mr Aylen identified several potential causes of action. He dealt with them in turn. That was a more difficult exercise than it sounds. The pleadings were not always as clear as they might have been. The applicant had sought, and had been granted, a statutory remedy under the relevant employment legislation. His causes of action to be deduced from the pleadings were not always straightforward. In essence, the question is, what did the defendants do after June 1992 (within the relevant limitation period) for which the applicant would be entitled to a remedy at law, which was not already duplicated by the proceedings and award made to him by the Employment Appeal Tribunal, or as a consequence of its decision? 
8.	Grounds 10, 11 and 12 of the notice of appeal seem to me to take the argument no further. The rights identified in those paragraphs are not in issue. They present no particular difficulty. The short fact is that they either add nothing to the case if Mr Cornelius has one, and they do not make out a case for him if he does not have one.
9.	Turning to the way in which Mr Aylen identified the causes of action, he first identified an allegation that the termination of the applicant's contract of employment was null and void. That point was no longer pursued before him. Even if it had been, it would have been held unarguable since the applicant had told Mr Aylen during the course of the hearing before him that he had accepted the repudiation of contract by the very fact of his proceedings before an Industrial Tribunal as a result of which he had received compensation. 
10.	A second cause of action was unlawful conspiracy. Originally there were no particulars of conspiracy, although on one view a great deal of material was contained in the particulars of mal-treatment to paragraph 12, which ran in allegations from (a) to (s). The judge held, having looked at the subsequent material, that the letters shown to him demonstrated individual acts by individuals. While sharing his concern on that principle, it is difficult to see a conspiracy by the defendants with themselves, which is what, in truth, this allegation amounts to. Before me, Mr Lloyd, who has taken over the conduct of this case and as far as I am concerned has presented it with great balance and good sense, no longer pursues the allegation. 
11.	I turn to unlawful interference with the contract. The difficulty was that there was only one contract and there were two contracting parties. The contract was a contract of employment. The local authority did not interfere in the contract, save in the sense that they broke it. That allegation formed the basis of successful proceedings. 
12.	In my view, the essential points for consideration are the allegations based on misfeasance in a public office and negligent mis‑statement. The allegations are to be found in paragraphs 14 and 15 of the statement of claim. Paragraph 14 relies on the duty of the defendants to take reasonable care in the way in which information was furnished to the public, trade and profession about his (Mr Cornelius') personal and professional conduct. In effect, he relies on the decision in Spring v Guardian Assurance Plc [1995] 2 AC 296. 
13.	The second relevant cause of action is in paragraph 15 where the complaint is that in breach of duty the defendants deliberately, negligently or recklessly maintained the allegations of gross professional conduct, originally made in 1990, 1991 and 1992. Many of these issues found their way to the eventual decision of the Employment Appeal Tribunal. The point of the paragraph is that this process continued after the Employment Appeal Tribunal had exonerated Mr Cornelius. 
14.	There are difficulties with both these causes of action. The judge's approach was to regard the negligent mis‑statement claim as producing a situation in which the principle would be extended in a way which was “virtually uncontrollable”. The difficulty was compounded by the fact that although the material relied on in support of this allegation might well have founded a claim in defamation, the statement of claim expressly excluded any such cause of action and Mr Lloyd did not pursue it. 
15.	As to the misfeasance allegation, the judge felt that this was an attempt to circumvent the rules relating to dismissal in employment cases, contrary to the principles summarised in Johnson v UNISYS Limited [2001] 2 WLR 1076. He then went on to hold that the applicant did not come within the ingredients of the tort summarised by Lord Steyn in the now well‑known case of Three Rivers DC v Governor and Company of the Bank of England (No 3) [2000] 3 All ER 1. The ingredients of the tort were summarised by Mr Aylen at page 13C-F of his judgment. 
16.	The argument before me, in summary, can be put in this way. The letters and material on which Mr Cornelius relies which came into existence after June 1992, arguably fall within the ambit of the principle in Spring. It is said that the fact that something may have been done deliberately does not mean that it necessarily falls outside the principle. In any event, it may be that the court will reflect that there is insufficient proof of deliberate misconduct, but it may be satisfied that the defendants were negligent. In those circumstances, merely because Mr Cornelius cannot proceed with a claim in defamation, it is arguable that the conduct complained of fell within the principle in Spring. 
17.	As to misfeasance, that relates to the conduct of employees of the defendant. They are vicariously liable, but they are plainly in public office. The statements were made to the public in the purported exercise of responsibilities as public officials. As to the state of mind of the defendant, the evidence may establish either of the two requisite forms: that is, either deliberate malice or, in effect, recklessness involving bad faith in the sense that the defendants did not have an honest belief that their actions truly were lawful. 
18.	I have made clear on previous hearings, and I do now, that I do not want Mr Cornelius to develop an over exaggerated sense of the prospects of a successful appeal. In the course of the discussions before me, I pointed out to Mr Lloyd that the consequences of an unsuccessful appeal would be to add to, rather than to reduce, the very high burden of costs which has already been placed on Mr Cornelius. Mr Lloyd assured me that he had explained all that to Mr Cornelius. 
19.	Turning to the issue which I have to decide, and having reflected on the material before me, and Mr Lloyd's submissions, I have come to the conclusion that there is an arguable case in relation to negligent mis‑statement and misfeasance. Given the background and circumstances in which Mr Cornelius' employment came to an end, this seems to me to be a case where those allegations ought to be considered by the Court of Appeal in any event. 
20.	On the face of the findings of the Employment Appeal Tribunal he appears to have behaved very well, and to have been the victim of unlawful termination of contract by his former employers. The battle between them continued thereafter. 
21.	In those circumstances, I shall grant permission on those two grounds. 
22.	There is a separate matter relating to costs. At the start of the judgment I indicated that Mr Cornelius had a sense of grievance about the conduct of the defendant's solicitors. To a large extent the way in which any costs order will fall to be decided will depend on the outcome of the appeal. But, given the background in relation to costs, to which my attention has been drawn in the latest affidavit from Mr Cornelius, I shall indicate that the whole of the costs issue may be re-considered by the full court if the appeal is successful. It follows in every case that the costs issue is re-considered, but I mention, simply for Mr Cornelius' peace of mind, that if the appeal is successful then the costs issue is there for consideration. If the appeal is unsuccessful and Mr Lloyd believes there are grounds for arguing further about costs, I shall give him leave to do so. 
Order: Permission to appeal on two grounds of negligent mis-statement and misfeasance only. Pleading to be amended accordingly. Costs of this application to be costs in the appeal. Transcript of judgment to be provided to applicant at public expense. In the event of any further dispute regarding this case, it is to be reserved to Lord Justice Judge.