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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 >> Hossain & Ors v Sonali Bank & Anor [2008] EWCA Civ 425 (26 February 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/425.html Cite as: [2008] EWCA Civ 425

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MISTER JUSTICE EADY )

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2008

Lord Justice Jacob:

1. This is an application by Mr Hossain, who appears in person not only for himself but for a number of others -- I think four at present -- for permission to appeal from a decision of Eady J given on 19 June 2007. He dismissed an appeal from a decision of Master Foster given on 11 May 2006, whereby the appellant's claim was struck out as an abuse of process.
2. The abuse of process is said to be that the subject of the complaint -- which relates to Mr Hossain's (and those with whom he is connected) pension – about the Sonali bank, particularly I think the Sonali Bank UK Limited, by whom he had been employed for many, many years. He brought a claim in the Employment Tribunal. He was partially successful, but his point -- and the subject of the claim which he wishes to bring in the High Court -- is that the calculations ought to have been done on his final take home pay and not merely a fraction of it which was in effect to be regarded as his basic pay. He says that these emoluments are what matter and these include certain allowances which he was given, and, if you look at the figures, they are the biggest amounts on what his take home pay was by quite a long way.
3. The proceedings in the Employment Tribunal were protracted. It would seem that the bank was not entirely cooperative in producing all the relevant documents at an early stage. Mr Hossain was represented by leading counsel and at the conclusion of the proceedings he, Mr Gavin Miller QC, put in an outline submission before the tribunal. It included the following paragraphs:

"53. The unsatisfactory nature of the documentary and other evidence as to pension arrangements: The ET will be familiar with the As concern on this point [from the cross examination of Mr Latif for bank employee on day 8]. It is lamentable and suspicious that an employer, in particular a nationalised bank, fails to produce all of the relevant pension documentation in proceedings such as these involving claims by longstanding employees who have received extremely limited one off 'pension' payments. An employer must deal openly and in good faith with its employees in relation to pension arrangements -- let alone the Tribunal. In these circumstances the As (MMNH [that is Mr Hossain, I think] in particular) and their advisers have had to make all the running in seeking to explain to the Tribunal how the pension arrangements/entitlements work.

54. It has emerged in the course of the hearing that R [that is, the bank] considers that all of the sums received by its UK optee staff each month (basic pay, protected pay and allowances) to be part and parcel of their net 'salary' [see 1.282] or 'take home pay' [see especially the evidence of Mr Latif on day 8 when cross examined about 1.282]. The claim as pleaded and articulated in evidence by [Mr Hossain] is, however, linked to the basic plus protected pay (see the 'other allow' column at 2.282 for the eight of the As) 'final' pay for pension purposes.

55. Accordingly the ET is invited to consider whether the reality of the As employment in the UK requires that the phrases covering 'final' pay for pension purposes be construed so as to cover not only protected/personal pay but this full final monthly pay. Those acting for A [and this is an important sentence] and the union are concerned to ensure that guidance capable of resolving all the As grievances is obtained from the ET's decision. If this point is not considered (but merely the claim as pleaded) this may not occur."

4. The matter went to the Employment Appeal Tribunal, which refused to consider the larger claim on the basis that no application to amend had been made. Mr Hossain says that he had in fact given instructions for an amendment, but somehow it never happened and we do not really know why. A claim has accordingly been launched in the High Court for, in effect, the extra, which is in fact most of the pension which he would get.
5. The bank seeks to meet that by a plea of abuse of process on the principles of Henderson v Henderson (1843) 3 Hare 100. They say that this ought to have been raised in the Employment Tribunal and was not. The Master so held and Eady J upheld his decision. This is therefore a second appeal -- or would be, if permission is granted. Under CPR 52.13 2 it is provided that:

"The Court of Appeal will not give permission unless it considers that --

(a) the appeal would raise an important of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

6. Now it is clear that one cannot say that the fundamental claim which Mr Hossain wishes to bring is itself without merit. I do not know whether it is a good claim or a bad claim, but one clearly cannot say it is obviously a bad claim, and no one has said otherwise. The question, therefore, is simply whether the decision that there is an abuse of process by bringing this claim is one that can be challenged.
7. Mr Hossain has taken me through a number of documents showing how the bank regarded his emoluments as being all his take home pay. The basis of the decision by Eady J is that no application was actually made to amend before the Employment Appeal Tribunal and that it would be an abuse of process now for the court to hear that which could have been the subject of an amended claim before the Employment Appeal Tribunal. However, it seems to me that it is potentially arguable -- I would want to hear what the other side had to say about it – that, if such an application had been made to amend, it would have been refused (there was an indication to that effect in the course of proceedings; that is one point, as I understand it) and secondly, that last sentence of Mr Miller's submissions in effect reserved the position about another claim. He invited the tribunal to rule upon all the grievances of the applicant and said there is a real danger that if you do not do so there will be another complaint. I also take into account the fact that the bank was not forthcoming and that a possible exception to the Henderson v Henderson rule on the rather broader basis which now applies, following its reinterpretation in Johnson v Gore Wood [2002] 2 AC 1, one may take into account more the nature of the proceedings which are said to give rise to the (to use the old fashioned word) estoppel. If those proceedings were themselves rather unsatisfactory by reason of one party being less forthcoming, for instance by provision late or not at all, of documents which might have been produced timeously, then less blame can be attached to any other party which fails to raise a point, which it could have done. The position may be that there is really too much of a muddle going on.
8. I also take into account that one must adopt -- as it was put in Johnson v Gore Wood by Lord Millett, I think -- a broad merits-based judgment which take into account the public and private interest involved, and that one should look at all the circumstances.
9. Part 52.13(2) requires that there should be an important point of principle or practice or another compelling reason. I have some reservations whether this case satisfies either of those tests, but again it seems to me to be arguable that -- where the earlier decision in the Henderson v Henderson case is produced in a state of rather a muddle and where one party appears to be reserving its position about further proceedings -- the rule applies. There could be an important question of principle.
10. What I propose to do, because this is quite a complicated area of law and the facts are not all that simple, is to adjourn Mr Hossain's application to be heard by a court of three lords justices, or two lords justices and a High Court judge, for his application to be renewed there and, if permission is given, for the appeal to be heard forthwith. That will be on notice to the respondent bank. I have warned Mr Hossain that, were he to be unsuccessful even at the stage of permission, he is very likely to be the subject of an adverse costs order and he fully understands that.
11. I would hope that he will be legally represented and, indeed, that, if he takes legal advice and was advised that his application was unlikely to succeed, that he would drop it. He feels a fierce sense of injustice, not entirely without cause, it would seem, but if he is advised by a competent lawyer that his prospects of success are poor, I would hope he would drop the case – a very difficult thing to do when you feel a sense of injustice.

Order: Application adjourned