Hines vs. Birkbeck Coll (3) 1991 (original) (raw)
Court of Appeal [1989 H. No. 5407]
Hines vs. Birkbeck College and another (3)
[1992] Ch 33
HEARING DATES: 19, 20, 21 March & 24 May 1991
University - Estoppel - Per rem judicatam - Cause of action estoppel - Dismissed professor's action against university and college - Action struck out as matter within exclusive jurisdiction of visitor - Statute enacted conferring jurisdiction on court - Professor bringing second action raising same issues against same parties - Whether res judicata - Education Reform Act 1988 (c. 40), s. 206(1) Education - University - Visitor's jurisdiction - Dismissal of professor by college - University committee recommending deprivation by university of title and status - Professor's claim against college and university struck out as being within exclusive jurisdiction of visitor - New enactment giving court jurisdiction - Fresh action - Whether parties entitled to refer matter to visitor - Education Reform Act 1988, s. 206(2)
HEADNOTE:
In 1971 the Senate of the University of London, with the consent of the governing body of Birkbeck College, appointed the plaintiff to a chair of economics at the college and conferred upon him the title of "Professor," with the status of "appointed teacher." His salary was paid by the college, which had the power to dismiss him. The university senate had power to deprive him of his title and status. In July 1983 the college dismissed the plaintiff for alleged serious misconduct and it invited the senate of the university to deprive him of his title and status of appointed teacher. The matter was considered by a university committee which recommended to the senate that the plaintiff be deprived of his title and status. On 17 March 1985 and before the senate had considered the committee's report, the plaintiff issued a writ claiming against the college that its purported decisions leading to his dismissal were ultra vires and void, and seeking an injunction against the university to restrain it from depriving him of his title of professor and status as an appointed teacher. On the defendants' motions, Hoffmann J. struck out the action on the ground that the subject matter of the proceedings was within the exclusive jurisdiction of the visitor and the court had no jurisdiction in the matter.
Section 206 of the Education Reform Act 1988, which conferred on the court jurisdiction in matters which had previously been within the exclusive jurisdiction of the visitor, came into force on 29 July 1988. The plaintiff issued a writ endorsed with a statement of claim in similar terms to that issued in the first action and the defendants applied to have that action struck out. Mervyn Davies J held that the matter was res judicata and ordered that the action be struck out. On other issues raised by the parties which would be relevant only if the action had not been struck out, the judge considered that either or both defendants were entitled to refer the dispute to the visitor and if it was referred, the action should be stayed, and also that the action should in any event be stayed until the plaintiff had paid the costs incurred by the defendants in the first action.
On appeal by the plaintiff:-
Held, allowing the appeal in part, (1) that at the date of the first writ the court did not have jurisdiction to entertain the plaintiff's action and, therefore, there had been no determination by the court on the merits of the plaintiff's claim which could give rise to an estoppel; that, since the doctrine of res judicata did not apply, there were no grounds for striking out the writ.
But (2) that there being a dispute between the parties concerning the termination of the plaintiff's appointment, the plaintiff or the defendants could refer the dispute under section 206(2) of the Education Reform Act 1988 to the visitor and, if the visitor accepted the reference, the action should be stayed; and that, in any event, the proceedings brought by the plaintiff concerning the same subject matter as the first action and between the same parties were to be stayed until the plaintiff paid into court the costs incurred by the defendants in the first action.
M'Cabe v. Bank of Ireland (1889) 14 App.Cas. 413, H.L.(I.) followed.
Order of Mervyn Davies J varied.
INTRODUCTION:
By a writ dated 17 May 1985 the plaintiff, Albert Gregorio Hines, sought against the first defendant, Birkbeck College, (1) a declaration that its purported decision to dismiss him forthwith, if within seven days of 30 June 1983 he had not resigned from his appointment to the chair of economics at the college, and its purported dismissal of him, pursuant to that decision, were ultra vires, null and void; (2) payment of salary and emoluments due to him from the date of the purported dismissal until judgment in the action, together with interest thereon pursuant to section 35A of the Supreme Court Act 1981, as inserted by section 15(1) of and Schedule 1 to the Administration of Justice Act 1982; (3) damages for breach of contract; and costs. Against the second defendant, the University of London, the plaintiff sought an injunction restraining the university from divesting the plaintiff of his title of Professor of Economics, or his status of appointed teacher in the university.
On 19 June 1985 the University of London issued a notice of motion seeking an order that the plaintiff's claim against it be struck out on the ground that the court had no jurisdiction over it, in respect of the subject matter of the claim, or alternatively, an order pursuant to the inherent jurisdiction of the court and R.S.C., Ord. 18, r. 19 that the plaintiff's claim against it be struck out on the ground that it was frivolous, vexatious, and an abuse of the process of the court, and that the costs of the application be paid by the plaintiff.
On 20 June 1985 Birkbeck College issued a notice of motion seeking an order pursuant to R.S.C., Ord. 18, r. 19, or alternatively under the inherent jurisdiction of the court, that the plaintiff's claim against the college be struck out on the grounds that it disclosed no reasonable cause of action, was vexatious and was an abuse of the process of the court; alternatively an order that the plaintiff's claim against the college be struck out on the ground that the court had no jurisdiction in respect of the subject matter of the claim, such jurisdiction being vested exclusively in Her Majesty as visitor of the college and an order that the costs of the action (including the costs of the application) be paid by the plaintiff. On 8 July 1985 Hoffmann J. [1986] Ch. 524 held that the court lacked the jurisdiction to intervene and ordered that the plaintiff's claim should be struck out. On 4 August the Court of Appeal dismissed the plaintiff's appeal: see (Note) [1987] Ch. 457.
On 29 July 1988, section 206 of the Education Reform Act 1988 came into force and, by a writ dated 29 June 1989, the plaintiff sought relief against the first and second defendants in terms identical to the claim in his earlier writ of 17 May 1985. On 13 November 1989 Birkbeck College and on 23 November 1989 the University of London issued notices of motion seeking an order pursuant to R.S.C., Ord. 18, r. 19, or alternatively under the inherent jurisdiction of the court, that the plaintiff's claim against them be struck out on the grounds that the issues raised by the plaintiff had been adjudicated upon and had been determined in an action between the same parties, that the court did not have the jurisdiction in respect of the subject matter of the claim, such jurisdiction being exclusively vested in the visitor; and that the claim showed no reasonable cause of action and was frivolous, vexatious and an abuse of the process of the court. On 21 November 1989 by a further notice of motion the college sought an order that the plaintiff's action be stayed until its costs incurred in the first action had been paid by the plaintiff.
On 30 March 1990 Mervyn Davies J ordered that the plaintiff's action be struck out on the ground of res judicata but ordered that any further proceedings should be stayed until the plaintiff had paid into court the costs incurred by the first and the second defendants in the first action.
By notice of appeal dated 30 May 1990 the plaintiff appealed to set aside that order on the grounds that the judge had erred (1) in holding that the plaintiff was barred from prosecuting the present action by cause of action estoppel when the doctrine of res judicata did not apply to create an estoppel in respect of a judgment that was not final but which was interlocutory; (2) in concluding that there was an identity of subject matter between the present action and the first action; (3) in holding that the Education Reform Act 1988 did not operate to lift the bar of the estoppel; (4) in holding that the defendants could refer the present dispute to their respective visitors and could therefore remove the dispute from the jurisdiction of the court if such references were accepted by the visitors and (5) was wrong, in the absence of any finding of fault or lack of success on the part of the party ordered to pay the costs of previous proceedings, to conclude that if the plaintiff was not estopped he would stay the action against the defendants until the plaintiff had paid into court their untaxed costs.
By a respondent's notice dated 13 June 1990 the second defendant contended that Mervyn Davies J's decision should be affirmed on the additional ground that the second action disclosed no reasonable cause of action against it and was frivolous, vexatious and an abuse of the process of the court.
The facts are stated in the judgment of Nourse LJ.
COUNSEL:
The plaintiff in person: The doctrine of res judicata is founded upon two policies of the law, that there should be an end to litigation and that a person should not be vexed twice for the same cause: see Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853, 909F. Estoppels are not to be applied to drive a plaintiff from the judgment seat but to work justice and, accordingly, the court ensures that all the necessary rules and conditions are strictly fulfilled whenever estoppel per rem judicatem is pleaded: see Howlett v. Tarte (1861) 10 C.B.(N.S.) 813; Spencer Bower and Turner, Res Judicata, 2nd ed. (1969), pp. 18-19 and Langmead v. Maple (1865) 18 C.B.(N.S.) 255. To rebut a plea or finding of res judicata successfully it is sufficient to show that any one of the conditions has not been fulfilled.
Cause of action estoppel is variously characterised in the authorities as preventing a party from relitigating a cause of action that has previously been adjudicated upon and finally determined between the same parties or their privies by a competent tribunal: see King v. Hoare (1844) 13 M. & W. 494 and Thoday v. Thoday [1964] P. 181. The doctrine of res judicata does not apply to create a cause of action estoppel in respect of a judgment that is not final or to a dismissal for want of jurisdiction and not on the merits. Mervyn Davies J was wrong in holding that the plaintiff was barred from prosecuting the action by cause of action estoppel arising from the judgment of Hoffmann J in Hines v. Birkbeck College[1986] Ch. 524. That judgment was interlocutory and not final. It was not on the merits. It was a dismissal for want of jurisdiction and determined one question only, namely, the court's jurisdiction, which the plaintiff does not seek to controvert and which is not raised by the statement of claim in the present proceedings: see Ideal General Supply Co. Ltd. v. Edelson and Edelson (t/a The Ideal Clothing Co.) [1957] R.P.C. 252 and Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300.
The identity of subject matter required for cause of action estoppel is an identity between (1) the cause of action which has actually been adjudicated upon and determined on the merits and has merged with the judgment in the previous action and (2) the subsequent action to which it is sought to apply the estoppel. This identity can be established if, and only if, the plaintiff's statement of claim in the previous action was adjudicated upon and determined on the merits in that action.
In the absence of res judicata the question whether special circumstances are applicable does not arise: see Property and Reversionary Investment Corporation Ltd. v. Templar [1977] 1 W.L.R. 1223. Even if cause of action estoppel applies Mervyn Davies J. was wrong to hold, in reliance upon Arnold v. National Westminster Bank Plc. [1989] Ch. 63, that the Education Reform Act 1988 does not operate as a special circumstance to lift the estoppel bar.
Section 206(1) of the Act of 1988 abolishes the jurisdiction of the visitor over two categories of disputes: "any dispute relating to a member of the academic staff which concerns his appointment or employment" and "any dispute relating to a member of the academic staff which concerns... the termination of his appointment or employment." The court, therefore, has jurisdiction in respect of any such dispute: see Pearce v. University of Aston in Birmingham (1) [1991] 2 All E.R. 461.
For a dispute to come within the exclusive jurisdiction of the visitor it is necessary to show that the individual is a person subject to the jurisdiction of that visitor and that the subject matter of the dispute is within the jurisdiction of that visitor. The nature of the contractual and tortious dispute between the plaintiff and the college is such as to place it within the jurisdiction of the courts and so outside that of the visitor. Also the relief sought against the university being related to and arising out of the claim against the college was within the jurisdiction of the court and apt for injunctive relief.
Under the practice before the Supreme Court of Judicature Act 1873 (36 & 37 Vict. c. 66), it appears that a party in default of payment of the costs of an action or a motion in which he had failed was prevented from bringing a fresh action or from proceeding with the suit because he was in contempt of court: see Morton v. Palmer (1882) 9 Q.B.D. 89 and In re Wickham; Marony v. Taylor (1887) 35 Ch.D. 272. Since the passing of the Supreme Court of Judicature Act 1873 the matter is one for the discretion of the court in exercise of its inherent jurisdiction, each case being considered on its merits. Non-payment of costs per se is not a ground for staying proceedings: see Killing v. Killing (1821) 6 Madd. 68 and In re Wickham, 35 Ch.D. 272, 280, 282. Failure to pay only occurs when a previous final action for substantially the same cause has been adjudicated upon and dismissed on the merits: see Martin v. Earl Beauchamp (1883) 25 Ch.D. 12 and M'Cabe v. Bank of Ireland(1889) 14 App. Cas. 413.
James Munby Q.C. for the college: The plaintiff's claim against the college is concluded against him by the doctrine of res judicata.
Hoffmann J's order [1986] Ch. 524, though interlocutory, is deemed "final" in the context of the doctrine of res judicata: see Spencer Bower and Turner, Res Judicata, 2nd ed., pp. 131-132.
A dismissal for want of jurisdiction does give rise to res judicata precluding the litigant from reviving his claim before the tribunal which has refused jurisdiction though it does not prevent him litigating again in any court which has jurisdiction: see Rex v. Middlesex Justices, Ex parte Bond[1933] 2 K.B. 1.
Hoffmann J decided that the plaintiff did not have any justiciable cause of action against the college in relation to his dismissal since all such claims fell within the jurisdiction of the visitor: see Thomas v. University of Bradford [1987] A.C. 795 which approved Hoffmann J's decision. That finding gives rise to a classic cause of action estoppel: see Thoday v. Thoday [1964] P. 181 and Rex v. Middlesex Justices, Ex parte Bond[1933] 2 K.B. 1. Hoffmann J, in Thomas v. University of Bradford (No. 2) (unreported), 15 June 1990, was wrong in failing to take account of the principle enunciated in Ex parte Bond [1933] 2 K.B. 1 that a dismissal for want of jurisdiction gives rise to res judicata.
So far as cause of action estoppel is concerned, the rule is absolute: you cannot sue twice for the same relief based on the same cause of action even if new facts or law have subsequently come to light. In contrast the binding effect of an issue estoppel is more limited: it will not prevent the parties relitigating if there are "special" or "exceptional" circumstances, for example, if there has been a subsequent change in the law: see Arnold v. National Westminster Bank Plc. [1990] Ch. 573.
At common law the court has no jurisdiction in respect of the subject matter, that jurisdiction being vested exclusively in the college's visitor: see Thomas v. University of Bradford [1987] A.C. 795. The Education Reform Act 1988 precludes the college from asserting that the court is without jurisdiction but the college does have the right to remove the matter from the jurisdiction of the court by making a reference to the visitor: see Pearce v. University of Aston in Birmingham (1) [1991] 2 All E.R. 461. The plaintiff asserts that only the employee can refer a dispute to the visitor: see Secretary of State for Employment v. Banks [1983] I.C.R. 48. This is not so and Pearce's case makes it clear that it is in any event for the visitor, and not the court, to decide whether or not to accept any particular reference. Where a plaintiff, having failed in one action, commences another for the same matter the second action must be stayed until the costs of the first action have been paid: see M'Cabe v. Bank of Ireland, 14 App.Cas. 413.
Paul Smith for the university: The action by the plaintiff against the university should be struck out upon the ground that the issues raised by the plaintiff have already been adjudicated upon and decided adversely to him in Hines v. Birkbeck College [1986] Ch. 524.
The position of the university as regards the plaintiff's appeal is identical to that of the college, save that the college does not seek to pursue any allegation that the plaintiff's claim discloses no cause of action against it and is frivolous or vexatious. The university therefore adopts the argument of the college in relation to res judicata, the effect of the Education Reform Act 1988 on the jurisdiction of the court, and the costs of the first action.
The plaintiff's causes of action in the two actions are identical and arise out of the same alleged fact, namely that the university was or would be acting ultra vires in purporting to deprive the plaintiff of his status and title. The judgment of Mervyn Davies J striking out the plaintiff's claim should be affirmed.
The plaintiff replied.
Cur. adv. vult.
PANEL: Nourse, Balcombe and McCowan LJJ
JUDGMENT BY NOURSE LJ:
In Hines v. Birkbeck College[1986] Ch. 524 Hoffmann J struck out the plaintiff's action against the college and the University of London on the ground that the subject matter of the proceedings was within the exclusive jurisdiction of the visitor. That decision was approved by the House of Lords in Thomas v. University of Bradford [1987] A.C. 795 and the plaintiff's appeal against the order of Hoffmann J was subsequently dismissed: Hines v. Birkbeck College (Note) [1987] Ch. 457. The plaintiff did not refer the dispute to the visitor. On 29 July 1988 there came into force section 206 of the Education Reform Act 1988, which has given to the court an initial jurisdiction over a dispute of this kind; see Pearce v. University of Aston in Birmingham (1)[1991] 2 All E.R. 461. The plaintiff has since commenced a second and seemingly identical action against the college and the university. The main question which now arises is whether, as Mervyn Davies J has held, he is prevented from prosecuting it by reason of the doctrine of res judicata.
It is unnecessary to repeat the earlier history of the matter, which is fully set out in the judgment of Hoffmann J in the first action. Shortly stated, the plaintiff claims that in July 1983 the college wrongfully dismissed him from the post to which he had been appointed in November 1971 and that the university thereafter acted unlawfully in withdrawing his title and status of Professor of Economics.
The writ in the second action endorsed with a statement of claim was issued on 29 June 1989, less than six years after the alleged wrongful dismissal. The college then issued a summons to strike it out, primarily on the ground of res judicata, and a further summons seeking, in the alternative, an order that all further proceedings be stayed until the plaintiff had paid the costs he had been ordered to pay to the college in the first action. The university issued a single summons seeking relief similar to that sought by the college.
The three summonses were adjourned to the judge. In due course they were heard by Mervyn Davies J On 30 March 1990 he made an order striking out the action as against both defendants on the ground of res judicata. In his judgment he dealt also with two further questions which would have arisen if he had allowed the action to proceed. He held that not only the plaintiff, but also the college and the university, were at liberty to refer a dispute of the visitor under section 206(2) of the Education Reform Act 1988. He also held that each defendant would have been entitled to a stay until sums of �6,000 and �7,500 had been paid into court in respect of the costs which the plaintiff had been ordered to pay to the college and the university respectively in the first action. The plaintiff has appealed against the judge's decision of all three questions.
The hearing in this court started at 2 p.m. on 19 March 1991. At the end of that afternoon the plaintiff, who has appeared in person in both courts, was still addressing us on the main question of res judicata. On the morning of 20 March we told him that we had formed a preliminary view of that question favourable to him. He agreed to our proposal that he should take it no further until after we had heard the arguments of counsel for the defendants. Having heard the plaintiff's arguments on the second and third questions, we informed counsel for the defendants that we did not wish to hear them on either of those questions. Having then heard their arguments on the main question, we informed the plaintiff that we did not wish to hear him in reply on that question. On 21 March judgment was reserved.
Shortly afterwards it came to our notice that on 15 June 1990 in Thomas v. University of Bradford (No. 2) (unreported), 15 June 1990, Hoffmann J had decided a question which appeared to be identical to the main question raised on this appeal. He had held that there was no res judicata. He had not been referred to Mervyn Davies J's decision and we had not been referred to Hoffmann J's decision. We informed counsel for the defendants of this development. On 12 April 1991 they supplied us with copies of the transcript of Hoffmann J's judgment. They did not request a further oral hearing. They were content to make brief further submissions in writing. Since Hoffmann J's decision was clearly in the plaintiff's favour, no further argument on his part was necessary. On 25 April 1991 the House of Lords delivered judgment in Arnold v. National Westminster Bank Plc.[1991] 2 A.C. 93, a case in which the judgments both of this court [1990] Ch. 573 and of Sir Nicolas Browne-Wilkinson V-C [1989] Ch. 63 at first instance had been referred to at some length in the argument of Mr. Munby for the college. He subsequently informed us that there was nothing in their Lordships' speeches which required him to ask for the opportunity to address further argument to the court.
I now consider the main question of res judicata. It was pointed out by Diplock LJ in Thoday v. Thoday [1964] p. 181, 197-198, that "estoppel per rem judicatam" was a generic term which in modern law included two species, namely, "cause of action estoppel" and "issue estoppel." That distinction has since become well recognised in the authorities. The foundation of Mr. Munby's argument on the main question, which was adopted by Mr. Smith on behalf of the university, was that the species of estoppel which had barred the plaintiff's second action was cause of action estoppel.
Shortly stated, the decision of Mervyn Davies J was to this effect. He assumed, rather than decided, that he was concerned with cause of action estoppel and not with issue estoppel. Relying on the statement of
the general principle made in the speech of Lord Reid in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853, 909, he recognised that before the estoppel could arise the judgment in the first action must have been a final judgment and that there must be identity both of parties and of subject matter in the first and second actions. Clearly there was an identity of parties. Having considered the other two points, he held that there was an identity of subject matter and that the judgment in the first action was a final judgment for the purposes of the doctrine of res judicata. Next he asked himself whether the Education Reform Act 1988 had operated so as to lift the bar of the estoppel. In answering that question in the negative, he relied on the judgments at first instance and in this court in Arnold v. National Westminster Bank Plc. [1990] Ch. 573, from which I need refer only to these words of Sir Nicolas Browne-Wilkinson V-C [1989] Ch. 63, 69:
"So far as cause of action estoppel is concerned, the rule is absolute: you cannot sue twice for the same relief based on the same cause of action even if new facts or law have subsequently come to light."
He also referred to Rex v. Middlesex Justices, Ex parte Bond [1933] 2 K.B. 1, which is authority for the proposition that a dismissal for want of jurisdiction gives rise to a res judicata precluding the plaintiff from reviving his claim before the tribunal which has already denied jurisdiction; as to this, see further below.
In dealing with the main question in this court, the plaintiff submitted that Mervyn Davies J's decision was wrong at every point. By the end of the first afternoon he had wholly failed to satisfy me, absent the Education Reform Act 1988, that the judge's decision would have been wrong in any respect. However, since he did not complete his argument on the main question, I do not express a final view to that effect. On the other hand, I am satisfied, contrary to the view of the judge, that the effect of the Act of 1988 has been to lift the bar of the estoppel.
So far as material, section 206 of the Act of 1988 is in these terms:
"(1) The visitor of a qualifying institution shall not have jurisdiction in respect of any dispute relating to a member of the academic staff which concerns his appointment or employment or the termination of his appointment or employment. (2) Subsection (1) above does not apply in relation to any dispute which is referred to the visitor of a qualifying institution before - (a) the relevant date; or (b) the date on which this section comes into force; whichever is the later... (4) In this section - (a) 'the relevant date,' in relation to a qualifying institution, means the date on which the statutes of the institution include such provision as is mentioned in section 203(1)(d) and (e) of this Act;..."
It is agreed that "the relevant date" has not yet occurred. By virtue of section 236(1) of the Act of 1988, section 206 came into force on the passing thereof, namely, on 29 July 1988.
In Pearce v. University of Aston in Birmingham (1) [1991] 2 All E.R. 461 it was held that section 206(1), by excluding the jurisdiction of the visitor in respect of any dispute of the two categories there mentioned, and subject to the exceptions for which provision is made by subsections (2) and (3), gave jurisdiction to the court in respect of any such dispute. And so the court, which before 29 July 1988 had no jurisdiction to entertain the plaintiff's action, now has jurisdiction to do so. Did Hoffmann J's dismissal of the first action for want of jurisdiction before 29 July 1988 give rise to a res judicata precluding the plaintiff from bringing the second action before a tribunal, admittedly the same tribunal, which after that date has jurisdiction to entertain it?
The answer to that question is to be found in a passage in Spencer Bower and Turner, Res Judicata, 2nd ed. (1969), pp. 52-53:
"Where an action has been dismissed on the sole ground that the particular court had no jurisdiction, there is no decision of the question in controversy, such as to estop the plaintiff from suing again in any court which has jurisdiction to entertain the suit; but such a dismissal, while it will allow the disappointed party to prosecute his claim in a court having jurisdiction, will preclude him from reviving his claim before the tribunal which has formerly refused jurisdiction."
The authority cited for the second of those propositions is Rex v. Middlesex Justices, Ex parte Bond [1933] 2 K.B. 1. If, as Mervyn Davies J evidently took it, and as Mr. Munby would have us take it too, you take that proposition literally, it applies precisely to this case. The court was and is the same tribunal both before and after 29 July 1988. But before you can say that there is a res judicata you must identify the res upon which an adjudication has been made. What did Hoffmann J decide? Only that before 29 July 1988 the court did not have jurisdiction. He did not decide that the court did not have jurisdiction after that date. Nor did he decide any of the issues raised in the first action. How then can the plaintiff be estopped from asserting that the court does now have jurisdiction or, by virtue of the first of Spencer Bower and Turner's propositions, from suing again in that court?
Mr. Munby's submissions having failed to answer that question, I was, at the close of the argument, more or less confident that there was no estoppel here at all, so that questions whether it was cause of action estoppel or issue estoppel and, if the latter, whether the change in the law effected by the Education Reform Act 1988 amounted to special or exceptional circumstances which would prevent the operation of the estoppel (see now the decision of the House of Lords in Arnold v. National Westminster Bank Plc.[1991] 2 A.C. 93) would not arise. I was therefore much encouraged to find that the same view had been expressed by Hoffmann J himself in Thomas v. University of Bradford (No. 2), 15 June 1990, where an application to strike out a second action was made in circumstances identical to those of this case. In giving judgment, Hoffmann J said:
"The question which this motion raises is a very short one and depends, in my judgment, on examining what exactly the House of Lords decided. It did not, in my view, decide that the facts alleged by Miss Thomas in her writ would not constitute a cause of action at common law. The only decision was that as at the date of the writ the ordinary courts had no jurisdiction to entertain her complaint. Accordingly, there has been no determination of her dispute on the merits which would prevent her from commencing proceedings before any court which did have jurisdiction."
In their further written submissions counsel for the defendants submitted that Hoffmann J was wrong, that his judgment was very brief and that it did not appear to have been based on any very elaborate argument or extensive citation of authority. They referred again to Rex v. Middlesex Justices, Ex parte Bond [1933] 2 K.B. 1. For the reasons I have given, I respectfully think that Hoffmann J's decision was entirely correct and I would therefore decide the main question in favour of the plaintiff. I should record that in a respondent's notice the university contended that the decision of Mervyn Davies J should be affirmed on the additional ground that the second action was frivolous and vexatious and an abuse of the process of the court. That contention was abandoned at the hearing.
I now turn to the second question, which depends upon the true construction of the words "any dispute which is referred to the visitor" in section 206(2) of the Education Reform Act 1988. The plaintiff, while accepting that the college or the university has the right to refer a dispute concerning the appointment or employment of a member of the academic staff, submits that it is only the member himself who may refer a dispute concerning the termination of his appointment or employment. The plaintiff put this submission in a number of different ways, which included an argument based on the combined effect of section 206(1), (2) and (4)(a) and section 203(1)(d) and (e).
The short answer to this submission is that the point is practically concluded against the plaintiff by the decision of this court in Pearce v. University of Aston in Birmingham (1) [1991] 2 All E.R. 461, where an injunction to restrain the university from proceeding further with proposals to dismiss 12 members of the academic staff was refused, but only because the court had been informed that the university proposed to refer the dispute to the visitor. Accordingly, one of the points which was there assumed, if not actually decided, was that the university was entitled to make a reference under section 206(2) of the Act of 1988. The plaintiff sought to distinguish that decision by pointing out that no notices of dismissal had there been given. That is correct, but the dispute was still one "which concerns... the termination of his appointment or employment" within the second category of disputes mentioned in section 206(1).
It is also true that the submission which has been made by the plaintiff here was not made by the plaintiffs in the Pearce case. However, having taken full account of the arguments which the plaintiff has put before us, both orally and in writing, I would in any event decide this question against him. I see no good reason for restricting the effect of the unrestricted words in section 206(2). I would therefore affirm Mervyn Davies J's decision of the second question.
In regard to the third question, the factual position, as stated by Mervyn Davies J, was that the university had taxed its costs of the first action in May 1988 in the sum of �9,548.71 and the college in September 1988 in the sum of �7,805.52; so that the total sum owing amounted to �17,354.23. However, the plaintiff did not attend the taxations and on 13 December 1989 he obtained an order setting aside the taxation certificates. When the matter was before Mervyn Davies J. the hearing of the plaintiff's objections to the certificates had not been completed, so that the precise sums owing were unknown. On 10 August 1990 the costs were finally certified at �6,485.80 in the case of the college and �8,236.98 in the case of the university, as against the sums of �6,000 and �7,500 respectively which Mervyn Davies J would have ordered to be paid into court as the condition for the cesser of the stay. This development meant that it was no longer open to the plaintiff to argue in this court that there was no basis for ordering a stay of the second action until the costs of the first action had been taxed.
The authorities referred to by Mervyn Davies J included Morton v. Palmer (1882) 9 Q.B.D. 89; Martin v. Earl Beauchamp (1883) 25 Ch.D. 12; In re Wickham (1887) 35 Ch.D. 272 and M'Cabe v. Bank of Ireland (1889) 14 App.Cas. 413. The second and fourth of these were cases where the plaintiff, having failed in one action, brought a second action for the same matter. In M'Cabe v. Bank of Ireland, Lord Herschell said, at p. 415:
"The only question remaining is whether the order was right in so far as it stayed the proceedings in the second action until the costs in the first action had been paid. Now, my Lords, I find that it was laid down in a recent case in the Court of Appeal, Martin v. Earl Beauchamp (1883) 25 Ch.D. 12, 15, that 'the rule is established that where a plaintiff having failed in one action commences a second action for the same matter the second action must be stayed until the costs of the first action have been paid;' and even although the actions were not between precisely the same parties or persons suing in the same capacity, the case was held to be within the rule inasmuch as the plaintiff there was 'suing substantially by virtue of the same alleged title.'"
Having cited that passage from Lord Herschell's speech, Mervyn Davies J said:
"In the light of M'Cabe's case I conclude that when a plaintiff is ordered to pay the costs of an action and then brings a second action against the same defendant concerning the same subject matter then, on application by the defendant for a stay, the stay will be ordered as of course; unless no doubt there are some wholly exceptional circumstances. I certainly see no exceptional circumstances in this case, so that it is appropriate to order a stay."
Before this court the plaintiff sought to argue for a less stringent rule, for which purpose he relied mainly on Morton v. Palmer, 9 Q.B.D. 89 and In re Wickham, 35 Ch.D. 272. However, each of those cases was concerned with the question whether a stay should be granted until the payment of costs which had been ordered to be paid in the same action. I can well see that a different rule may apply where there has been no final disposal of the action. That is not a state of affairs with which we are here concerned. M'Cabe, 14 App.Cas. 413 is clear and binding authority for the rule to be applied where an action has been finally disposed of and the costs of it have not been paid. In my view the judge correctly extracted the principle of that decision and it cannot be said that he erred in applying it to the present case. I would therefore affirm his decision of the third question.
In the result I would not strike out the second action at this stage. To that extent I would allow the plaintiff's appeal. As at present advised, I would order that all further proceedings in the second action be stayed, as against the college until after the plaintiff shall have paid it the sum of �6,485.80 and as against the university until after the plaintiff shall have paid it the sum of �8,236.98, in each case together with interest at the appropriate rate from whatever are the appropriate dates until the date of payment. I would give each defendant liberty to apply below if and when the action is no longer stayed as against the defendant. The precise terms of the order will be a matter for discussion with the parties after judgment has been delivered.
JUDGMENT BY BALCOMBE LJ:
I agree.
JUDGMENT BY MCCOWAN LJ:
I also agree.
DISPOSITION:
Appeal allowed in part.
Order of Mervyn Davies J varied.
Further proceedings stayed until payment by plaintiff of defendants' costs of first action together with interest.
Either defendant if and when action no longer stayed against it to be at liberty to apply for further stay of action pending reference to visitor and upon that reference being accepted by visitor action to be struck out as against that defendant from that date.
No order for costs in Court of Appeal.
Leave to appeal refused.
SOLICITORS:
Solicitors: Dawson & Co.; Clifford Chance.
Reported by NIGEL J. MASON ESQ., Barrister
Now go to subsequent (final) judgment Hines v. Birkbeck College (4) 1994
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