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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bain v Abbey Life Assurance Company Ltd [2001] EWCA Civ 602 (24 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/602.html Cite as: [2001] EWCA Civ 602

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL MERCANTILE COURT
(His Honour Judge Weeks eks QC,
sitting as a Judge of the High Court)

		The Royal Courts of Justice The Strand London Tuesday 24 April 2001

Tuesday 24 April 2001

1. LORD JUSTICE CHADWICK: This is a renewed application for permission to appeal against paragraph 5 of an order made on 11 January 2001 by His Honour Judge Weeks QC, sitting as a Judge of the High Court in the Bristol Mercantile Court, in proceedings brought by Mr Gordon Bain against his former employers, Abbey Life Assurance Company Limited. I use the phrase "former employers" loosely. In fact the relationship appears to have been that of principal and agent; in that Mr Bain was an appointed agent of Abbey Life for the purposes of the sale of life assurance and other financial products to members of the public.
2. The agency was determined with effect from 12 January 1998. Thereafter Mr Bain applied for appointment with other companies in the financial services industry. Those companies to whom he applied approached Abbey Life for references in the usual way. The relevant complaint in these proceedings is as to the alleged lack of care in the preparation of those references. Mr Bain relies on a duty of care established by the House of Lords in Spring v Guardian Assurance Plc [1994] 1 ICR 596, and, subsequently, applied in this court in Bartholomew v London Borough of Hackney [1999] IRLR 246.
3. On 4 December 2000 His Honour Judge Jack QC (as he then was) made an order by consent for the trial of a preliminary issue. The issue which the court was asked to decide is set out in the schedule to that order. Put shortly, the question posed is whether, in determining whether or not the defendant was in breach of a duty of care owed to the claimant to take reasonable care in compiling references - in the circumstances in which, in the past, the defendant had taken disciplinary action against the claimant and recorded that fact and the outcome in the reference - it is relevant to consider whether on each such occasion the defendant should have taken the disciplinary action, or should have imposed the penalty which it did.
4. Abbey National seeks a negative answer to those questions; for the obvious reason that, if the court can be persuaded to hold that such an investigation is not relevant, then it will be unnecessary to prepare for a trial in which those past matters will all have to be investigated. If either of those questions are answered in the affirmative, then, at a substantive trial, the court will, in effect, have to investigate each of the occasions on which Abbey Life took disciplinary action against Mr Bain in the past, in order to determine whether or not the company had acted improperly or wrongfully.
5. This, then, was essentially a question as to how best to manage this litigation. Was it better to try to resolve these matters as a preliminary issue of law on assumed facts in advance of the trial, or was it better to leave the matter to come before the judge - with these points plainly in mind - so that the trial judge could decide what evidence should be admitted, and what evidence should be treated as irrelevant and inadmissible.
6. Judge Weeks took the view that it was inappropriate in the present case to make any ruling on the preliminary issue in advance of the trial. He took that view because he rejected the submission, made on behalf of Abbey Life, that there were no circumstances in which the giver of a reference could be under a duty to go behind a disciplinary finding which was correctly (as a matter of fact) recorded on the records of the members of its staff. He contemplated that there could be circumstances in which simply recording the bare facts does not amount to a fair reference, within the test laid down by this Court in Bartholomew, and subsequently applied by Burton J in Kidd v Axa Equity & Law Life Assurance Society Plc [2000] IRLR 301.
7. The judge recognised that it was impossible to tell whether this would turn out to be one of those cases or not. He accepted that it would be a rare case in which a trial judge would reach the conclusion that it was negligent on the part of the employer not to have re-opened the question whether the disciplinary action was appropriate; but he was not satisfied that this might not turn out to be one of those cases. He went on to say:

"That is a matter, I think, for the trial judge on all the evidence before him and it would be wrong for me to give a ruling in advance of the evidence submitted to him. However convenient it might be for the parties to know their position in advance, it is a matter for them to consider what evidence is going to be relevant at the trial and for the judge to rule on the admissible evidence before him whether or not the defendant should have taken the action which was, in fact, taken and for the giver of the reference to have considered any particular point in giving the reference. . . I cannot rule out circumstances in which it might be incumbent on the giver of the reference to consider the procedures which were taken in relation to the disciplinary action which was noted on Mr Bain's records."

8. An appellate court cannot properly interfere with a decision of that nature unless satisfied that the judge erred in principle: that is to say, that he failed to take something into account that should have taken into account; or that he left out of account something that he should have given weight to; or that his decision is plainly wrong.
9. In this case, the judge had to consider whether to let the matter go to trial, so that these points can be sorted out by the trial judge - if necessary with interim rulings in the course of the trial as to what points can or cannot be pursued in evidence - accepting that that may cause a waste of expense and possibly time; or to run the risk that a decision as to a matter of law on assumed facts may itself be the subject of one, or possibly two, appeals - in circumstances in which the appellate courts have no satisfactory foundation of fact on which to deal with the issues raised before them and where, in the event, they may have been asked to decide questions which turn out to be without any factual foundation.
10. The reports are replete with warnings from appellate courts as to the dangers of seeking to take short cuts by deciding preliminary issues. It is a matter of common experience that what has seemed (at the time) to be a way of saving time and expense has led (in the end) to additional waste of time and expense. Whether to take one course rather than the other was a balance which the judge had to weigh. In my view, there is no real prospect that this court would think it right to interfere with the decision which he reached. It is impossible to contend that he erred in principle.
11. This is an appeal which has no real prospect of success. The application must be refused.
ORDER: Application refused.