THE ACCRUAL OF THE LIMITATION PERIOD FOR LOSS OF EARNINGS: A CLAIM “JUST” IN TIME

The previous post looked at the decision in relation to interest in Oyesanya -v- Mid-Yorkshire Hospital Trust [2015] EWCA Civ 1049. Here we look at the procedural points.

I cannot leave this case without making three observations. First, I am surprised that the respondent, a Health Trust, thought it appropriate to plead the Limitation Act in order to resist paying the appellant the money which it accepted was owed to him for his work as a locum consultant – a course which, in the event, will have caused it much additional cost and expense. Second, the “progress” of this case through the court system can only be described as lamentable, for which both the parties and the county courts themselves bear some responsibility. Third, it is largely as a result of the pro bono assistance of Mr Colton that the appellant has been able to vindicate his rights. Without it a different result might well have occurred.”

KEY POINTS

  • An action based on unpaid wages was not statute barred.
  • The cause of action accrued when the claimant left the defendant’s employment and had an unpaid debt.

THE CASE

The claimant was seeking payment of moneys owed following his work for the defendant Trust. The work had been carried out in 200 and a claim form issued in 2006. The case had a complex procedural history.  At an application by the claimant to strike out the defence the circuit judge decided that a large part of the claimant’s claim was statute barred. He declared that the balance of the claim fell within the small claims track and adjourned the striking out application. The claimant appealed.

THE JUDGMENT
  1. The appellant’s original grounds of appeal had been long and somewhat diffuse. Tomlinson LJ did not restrict the scope of the appeal but Mr Colton helpfully reduced the grounds to four.
  2. The first ground was that Judge Mitchell was wrong to refuse to hear and determine the application to strike out the defence. Mr Colton submitted that that application had to be determined before the limitation issue because that would decide whether the defendant was to be permitted to run the limitation defence. The judge erred, submitted Mr Colton, because he seemed to regard the issue of limitation as one of jurisdiction. At one stage, the judge had said that if the claim was statute-barred, the appellant was not entitled to bring the claim at all. Mr Colton submitted that that was wrong. A claimant is entitled to bring his claim without regard to limitation, which only becomes an issue if and when pleaded by the defendant. Mr Colton submitted that this decision had put the appellant at a severe disadvantage. His application to strike out the defence was a strong one and might well have succeeded, thereby bringing his claim to a successful end. Even if the application had not succeeded in full, the judge might well have required the Trust to carry out proper searches of its files in accordance with Judge Hand’s order and might well have made an unless order to operate in the event of non-compliance. If the Trust had then complied with the disclosure order, who knows what new material might have been available for the appellant to deploy?
  3. Mr Soniake submitted (without, I think, much conviction), that the judge’s decision to deal with limitation before the application to strike out fell within his wide discretion. He reminded us of the well-known authorities to the effect that an appellant court should not interfere with a discretionary decision of the court below unless it had exceeded the generous ambit within which a reasonable disagreement is possible.
  4. In my judgment, this decision was wrong in principle. The position here, as made plain by District Judge Marin’s order of June 2007, was that the only issues for the court to decide were whether the claim was statute-barred and whether the Trust had waived its right to rely on the Limitation Act. In short, the limitation point was the defence. If the defence was struck out, the limitation point disappeared. I think it likely that the judge erred because he mistakenly thought that limitation was an issue which went to jurisdiction. It is not; it is a defence which must be pleaded and proved by the defendant. It follows that the appellant was right when he submitted to the judge that to determine the limitation issue before the application to strike out the defence was “to put the cart before the horse”.
  5. Much more difficult is the question of what would have happened if the judge had heard the strike out application first. Mr Colton submitted that it was very strong and might well have succeeded. Not only was there the manifest inadequacy of the Trust’s response to Judge Hand’s order which was depriving the appellant of material which might help his case, there had been other failings as well. He mentioned that the Trust had failed to file a defence in time and had then filed a defence which was factually wrong. Mr Sonaike accepted that the Trust’s response to Judge Hand’s order was not as it should have been but argued that the defence would not have been struck out. It was not at all clear that the disclosure exercise would have produced anything of use to the appellant. When one bore in mind the difficulty caused to the Trust by the appellant’s delay in commencing proceedings, the court would be slow to strike out an otherwise apparently well-founded defence for failure to conduct an onerous set of searches. The court considering the strike out would also consider the delay caused by the appellant. While accepting that the appellant had been entitled to wait until 2006 to issue his claim, Mr Sonaike submitted that, if he did not then proceed expeditiously with his claim, he would be open to criticism. He had not done so.
  6. This Court cannot decide definitively whether or not the defence would have been struck out if it had been heard. It is not our function. We do have to form a view as to the likely outcome. I do not propose to weigh up all the many factors which a court has to consider when making a decision on a strike-out application. I repeat that, in my view, the Trust’s response was quite inadequate but I think it unlikely that the defence would have been struck out. It was by no means clear that any useful documents would be found to be still in existence. Although not beyond criticism, the Trust’s conduct of the action had not been seriously deficient. Further, the limitation defence had apparent merit. I think that the most likely outcome would have been that the Trust would have been ordered to revisit its response to Judge Hand’s order. Possibly a rather more limited order might have been substituted. There would have had to have been an adjournment. What the outcome would have been we will never know.
  7. As his second ground of appeal, Mr Colton submitted that it had been unjust for the judge to proceed immediately to hear the limitation arguments. First, the judge knew that the appellant had prepared for the hearing in the expectation that his application to strike out would be heard first. He allowed only an overnight adjournment for the appellant to prepare to argue limitation. Second, the appellant was deprived of the benefit of any documents which might have come to light following proper searches. Third, the judge refused to allow the appellant to give evidence because, for perfectly sensible reasons, he had not put in his witness statement. The trial of the limitation issue had not been fair. If that were accepted, the only solution would be to remit the case to the County Court for the strike-out issue to be determined. Mr Colton accepted that the result might well be only partial success, with the Trust ordered to carry out proper searches. He accepted that that was not a happy prospect.
  8. Mr Sonaike submitted that, although at first sight the judge’s course might appear to have been unfair, in the event no injustice had been done. First, it was most unlikely that any relevant documents would have come to light so long after the events they related to. It would not be proportionate to require further searches to be made. Even now, the appellant had not said what documents he believed existed or how they would help his case. I interpose there to say that the appellant had stated in his application for specific disclosure that he believed there would be contemporaneous notes of meetings with the people named and that these would assist with the limitation issue. But it is true that he did not say exactly what had been said at those meetings which would be of assistance to him. Mr Sonaike also submitted that, now that we had heard the whole of Mr Colton’s submissions, it was clear that the appellant accepted that he had never signed the draft contract of employment and that Mrs Tyler’s notes of the various meetings were essentially correct. So it did not matter that he had not been allowed to give evidence about those matters. Nor did it matter that he had not been able to give evidence about the alleged promise to pay by the female officer in the finance department. Even if that were proved, it could not avail the appellant because the promise to pay on 22 December was not supported by consideration. It did not affect the limitation issue because it did not give rise to a fresh cause of action.
  9. I find this a difficult issue in that I see the strength of the arguments on both sides. However, for reasons which will be apparent when I have dealt with Mr Colton’s third ground of appeal, this second ground has turned out to be unimportant.
  10. Mr Colton’s third ground of appeal is that, even if the judge had been entitled to decide the limitation point before considering the strike-out application, he reached the wrong conclusion on limitation. He ought to have found that the whole claim accrued on 30 November 2000 and was not statute-barred when the claim was brought on 30 November 2006. Mr Colton advanced two reasons why this was so.
  11. First, he submitted that, on the Trust’s own evidence, which the judge had accepted, it appeared that, while the employment continued, there was no contractual obligation to pay the appellant. The reasoning was as follows. Mr Colton accepted that a finding that the appellant had not signed the contract was inevitable. He submitted that, even though the contract was not signed, the parties had conducted themselves on the basis that they had entered into a contract, the precise terms of which had not yet been determined but of which some, though not all, terms were agreed. One of those terms was that payment would be made by credit transfer (BACS). During the employment, the appellant had not provided his bank details and Mrs Tyler had said that without that information, the Trust could not pay him. While the employment continued, the Trust was entitled to insist on payment by BACS and was not therefore in breach of any obligation if it did not pay the appellant. If there was no breach, there was no cause of action. While the employment continued, the appellant could not have sued for his unpaid monthly salary. He would have been met by the answer that there had been no breach. When the employment ended, the entire sum of unpaid remuneration became due and the Trust was no longer entitled to insist on payment by BACS. Accordingly, the whole sum became due on 30 November and failure to pay amounted to a breach of contract which gave rise to a cause of action. Mr Colton had to accept, of course, that this argument had not been run by the appellant before the judge. However, he submitted that, as this is a purely legal argument, he should be allowed to take it before this Court. Mr Sonaike did not dissent from that.
  12. Mr Colton also sought to rely on the alleged promise to pay made by the female officer in the finance department. He did not accept that that promise had not been proved. The appellant had given further information about this incident and had appended a statement of truth. The only evidence from the Trust was that Mrs Tyler had said that no one except her would have had the authority to make such a promise. He submitted that, if such a promise had been made, it amounted to a fresh agreement between the parties. Whereas the previous agreement had been to pay by BACS, this agreement would be by some other means, such as by cheque. Also it had been had been supported by consideration, namely there was a forbearance to sue in return for a promise to pay by different means.
  13. As to the first argument, Mr Sonaike accepted that, if the appellant had signed the contract but had not provided his bank details, he would not have been able to sue for non-payment and that would mean that the cause of action did not accrue. He did not say what the position would have been after the employment ended but I do not think he was suggesting that the Trust would not have owed the appellant anything simply because he had failed to provide his bank details. However, that was theoretical because it was now accepted that the appellant had not signed the contract. Mr Sonaike submitted that, once that was accepted, it was clear that the contract between the parties had to be implied and that the touchstone of an implied contract was ‘necessity’. It could not be said that payment by BACS was a necessary term. Monthly payment would have been an obvious term. Therefore, by not paying the appellant monthly while he was working, the Trust had been in breach of contract and the appellant’s causes of action had accrued at the end of each month that he had worked. This argument, that the terms of the contract were to be implied without reference to the draft contract, was somewhat at odds with his skeleton argument, in which he had said that, if the contract had been signed, the appellant would have been entitled to be paid monthly in arrears and, if it had not been signed, the same contractual entitlement would still have arisen, either implied on the same basis or on a day to day accrual basis as the work was done. In other words, in that passage, Mr Sonaike had recognised the possibility that, even though the appellant had not signed the written contract, the parties had conducted themselves in accordance with its terms.
  14. As for the alleged promise to pay on 22 December, Mr Sonaike submitted that the allegation had not been adequately proved and that, in any event, such a promise did not amount to a new agreement and was unsupported by consideration. At its best, it could only amount to a promise to remedy an already existing breach of contract.
  15. I will say at once that I think Mr Sonaike is right about that and that I would reject Mr Colton’s submission that this was a new promise to pay by cheque rather than BACS and was supported by the consideration of forbearance to sue. Even on the appellant’s own case, nothing was said by or to the lady in the finance department about payment by cheque instead of by BACS.
  16. I do, however, accept Mr Colton’s submission as to the terms of the contract and the effect of those terms on the accrual of the cause of action. It appears to me that the judge did not analyse the legal position arising from the evidence before him. Having concluded that the appellant had not signed the contract, the judge jumped straight to an acceptance of the suggestion that personnel in the appellant’s position would be paid on a monthly basis. The judge described it as “really on a quantum meruit basis”. It is not clear what he meant by that. The judge did not ask himself what were the terms on which the parties were doing business together. Nor did he ask himself why it was (on the evidence of Mrs Tyler) that the Trust had not paid the appellant on a monthly basis as it said it usually would. Had he asked those questions, the answers would have been that the Trust was insisting on making payment by BACS because that was a term of the written contract and the appellant was not suggesting that it was not entitled so to insist; he was requesting payment by cheque but it is apparent that he knew he could not insist on it. The inference which has to be drawn was that the parties were conducting themselves in accordance with the contract even though it had not been signed. The contract which had to be implied was the contract as written even though unsigned. As the appellant had not signed the starter information pack and provided his bank details, the Trust was not in breach of contract in failing to pay him monthly. When the employment came to an end, there was no continuing contract between the parties, simply a debt for unpaid salary. In my judgment, that was the moment at which the appellant’s cause of action accrued. The Trust has never suggested that it did not owe the appellant his past salary; indeed before District Judge Marin, it accepted that it owed the sums claimed subject to the limitation argument. Nor has the Trust ever suggested that, after the employment ended, it was entitled to insist on making payment by BACS.
  17. I have some sympathy with the judge’s position in that the appellant did not advance the case which is now put on his behalf; indeed, he was asserting that he had signed the contract. It appears that because the judge rejected that submission, he moved straight to an acceptance of the Trust’s argument. In the event, on Mr Colton’s analysis, which I have accepted, it would have made no difference whether the contract was signed or not as the parties had conducted themselves in accordance with it.
  18. It follows that I would allow the appeal on the basis that the judge reached the wrong conclusion on limitation. The claim was not partly statute-barred. It was all (just) in time. For that reason, it is not necessary for me to express a concluded view on Mr Colton’s second ground of appeal.
  19. I would therefore, subject to any submissions that may be made hereafter as to why the figure should be gross, give judgment for the appellant for the appropriate net figure plus 40%.
  20. Although there was no free-standing appeal against the judge’s costs order, it will plainly have to be revisited in the light of this successful appeal. The Court is aware that there was a part 36 offer although it seems unlikely that we will now be troubled by that.

(The fourth ground related to whether payment should be net or gross. A decision on that issue was deferred).

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