Neutral Citation Number: [2004] EWHC 672 (QB)

Case No: HQ02X04120
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

On appeal from Master Leslie, 13 November 2003

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 5 April 2004 

Before:

SIR EDWIN JOWITT 
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Between :

	London Borough of Enfield	Appellant	
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	Natasha Sivanandan	Respondent/Cross-Appellant	

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Miss Daphne Romney (instructed by London Borough of Enfield Legal Services) for the Appellant
Miss Helen Mountfield (instructed by Hodge, Jones & Allen) for the Respondent/Cross-Appellant

Hearing dates: 9-11 March 2004
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Judgment

Sir Edwin Jowitt: 
1.	This is an appeal by the London Borough of Enfield (LBE), the defendant in an action brought by Miss Sivanandan, against the refusal by Master Leslie of its application made pursuant to CPR 3.4(2)(b) to strike out her claim against it and a cross appeal by her against his decision, on his own motion, to strike out certain parts of her claim, pursuant to CPR 3.4 (2) (a).
2.	On the 22nd July 1996 Miss Sivanandan became an employee of LBE as a Racial Equality Officer.  Her role was to work with the Enfield Racial Equality Council (EREC), an organisation funded partly by LBE.  Although LBE had its own grievance and disciplinary procedures, the benefit of which were in fact part of Miss Sivanandan's contract of employment with it, it was under the impression that she was employed by EREC.  So it was that when complaints were made about her conduct to EREC, EREC followed its own disciplinary procedures rather than those of LBE and, on the 11th October 1996, in accordance with those procedures, EREC suspended her from her duties.  Then, on the 11th December, it dismissed her from her employment for gross misconduct.
3.	LBE and EREC both denied being Miss Sivanandan's employer.  However, LBE did not question the fact that she had been dismissed from her employment.  It did not question why EREC had acted as it did, and, having paid Miss Sivanandan one month's salary in lieu of notice, it made no further payments to her.  Miss Mountfield, who has appeared for Miss Sivanandan submits that, although LBE never dismissed her from her employment, it had nonetheless breached her contract with it by the 11th December 1996 by its failure to ask EREC why it had chosen to dismiss someone who was not its employee, but LBE's, and by failing also to make available to Miss Sivanandan the appropriate grievance and disciplinary procedures which it operated.  Miss Mountfield says that the breach became a repudiation when her salary became due on the 11th January 1997 and was not paid.  One cannot say that LBE adopted the dismissal by EREC as its own act, since it never accepted that she was its employee.  However, since she was, and since it took no steps to follow its own disciplinary procedures and meanwhile to make clear to her that she was still in the employment of LBE, and ceased to pay her salary, it is clear that it repudiated her contract of employment and, in my view, thereby constructively dismissed her. In these circumstances it becomes unnecessary to consider whether LBE should be regarded as having treated EREC as having acted as its agent when it purported to dismiss Miss Sivanandan, a contention advanced by Miss Romney, for LBE, but not accepted by Miss Mountfield.  Nor does it really matter whether there was or was not a constructive dismissal, having regard to Miss Mountfield's concession that the contract of employment had been repudiated by the 11th January 1997. 
4.	On the 7th March 1997 Miss Sivanandan made an application to an Industrial Tribunal.  In her application she named LBE, EREC and a director of EREC as respondents.  She gave the dates of her employment as being from the 22nd July 1996 to the 11th December 1996.  Her complaints were of racial discrimination and victimisation, unfair dismissal, breach of contract and sex discrimination.  The complaint of sex discrimination was not, in the event, pursued.  The details of Miss Sivanandan's complaint stated, among other things, that she had been unfairly dismissed by EREC but that her employer was LBE and that she had been denied recourse to LBE's disciplinary procedures.
5.	At a preliminary hearing held on the 24th  October 1997 the Tribunal found as a fact that Miss Sivanandan's employer was LBE.  LBE never appealed against that decision, and so is bound by it.  EREC was not a body corporate and so was dismissed from the proceedings.  In its extended reasons the Tribunal noted that there was a claim for breach of contract in Miss Sivanandan's application arising out of the failure (of LBE) to give her notice.
6.	Both LBE and Miss Sivanandan applied for a review of the decision of the 24th October and this was held on the 23rd January 1998.  Miss Sivanandan had not been employed for long enough by LBE to enable her to complain she had been unfairly dismissed, nor could she bring her case within the provision which would nonetheless have allowed her to make such a complaint.  Accordingly, this complaint was withdrawn and the Tribunal recorded that it had been dismissed on withdrawal.  The Tribunal confirmed that it had jurisdiction to consider Miss Sivanandan's claim for damages for breach of contract.
7.	This hearing was followed by further interlocutory hearings and reviews and appeals to the Employment Appeal Tribunal.  At a later stage Miss Sivanandan gave notice to the Tribunal of her intention to make an application to amend her application by adding a contractual claim for wrongful dismissal.  In fact this application was never ruled upon.  It was to have been considered at the full hearing of the merits which was fixed to begin on the 5th September 2000 and before the Tribunal embarked on that hearing.  In fact the Tribunal never reached the point of considering this amendment because on the following day Miss Sivanandan's application was struck out under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, schedule 1, rule 13 (2)(e) on the ground that her conduct of the proceedings had been frivolous, vexatious and scandalous.  It is unnecessary to go into what brought about this decision.  Suffice it to say that Miss Sivanandan unsuccessfully appealed it to the Employment Appeal Tribunal and was refused leave to appeal further to the Court of Appeal.
8.	Miss Sivanandan had throughout been a litigant in person and she continued in this capacity in County Court proceedings which she launched and in the present action in the High Court, including the application before Master Leslie which is the subject of this appeal.  It is only in the last three or four weeks that she has had legal representation, though she has received advice from the Hackney Legal Centre from time to time concerning her litigation.

9.	The Tribunal proceedings and the appeal hearings arising from them were concluded by the refusal of leave to appeal to the Court of Appeal against the decision of the Employment Appeal Tribunal on the 7th  October 2002.  It was not until the 9th December 2002 that Miss Sivanandan issued the present proceedings in the High Court.
10.	The document setting out the particulars of claim is a long one.  It sets out in some detail Miss Sivanandan's account of the factual history of her dealings with LBE and EREC leading up to and including her dismissal by EREC and dealing also with subsequent events, including LBE's refusal to accept the finding of the Tribunal that it was her employer.  The history includes the fact that before any disciplinary proceedings were brought against her she had made a number of complaints to LBE which were not dealt with in accordance with its grievance procedures.
11.	Paragraph 18 alleges that LBE's actions had caused Miss Sivanandan psychological injury.
12.	Paragraph 19 sets out the breaches of contract which are alleged as follows:
19.1 Miss Sivanandan's contract of employment has never been determined and continues in being as she has never accepted LBE's repudiation of it.  Nonetheless she has never been paid her salary, although she has at all times been ready and willing to work for LBE.  She therefore claims loss of earnings.
19.2  Alternatively if, despite the fact she never accepted the repudiation, the contract is at an end, Miss Sivanandan is entitled to her loss of earnings up to the time when, after following the appropriate grievance and disciplinary procedures, a notice determining her employment would have expired.  The period for this is put at up to two years.  (Prior to the disciplinary proceedings, Miss Sivanandan had made a number of complaints to LBE and it had not followed its grievance procedures in relation to these.  Her pleaded case is that the time which would have been taken by going through the grievance procedures has also to be included in the period of loss of earnings for which she is entitled to be compensated.)
		19.3 This is no longer pursued.
19.4 Further and alternatively LBE's actions in relation to Miss Sivanandan were in breach of the implied duty of mutual trust and confidence.  Miss Mountfield has explained that the relevance of this is that the claims for injury to Miss Sivanandan's mental health and damage to her reputation are founded upon this breach.
13.	Paragraph 20 (a) sets out the damages claimed pursuant to paragraph 19.1 based on a calculation of her unpaid salary and loss of pension rights.  Paragraph 20 (b) claims in the alternative what would be a much reduced sum based upon the breach alleged in paragraph 19.2.
14.	Paragraph 20.2 claims special damages, being expenses incurred in seeking alternative employment.  Paragraph 20.3 simply claims a loss of statutory rights without any further information.  Paragraph 20.4 seeks damages for the harm done to Miss Sivanandan's reputation and standing in, as I understand it, her field of work.
15.	Paragraph 20.5 claims damages for injury to mental health.  The particulars of claim are defective in that they do not comply with the Civil Procedure Rules as to the provision of the medical evidence relied upon in support of this part of the claim.  However, certainly in the case of a litigant in person, I would not regard this as a ground for striking out this part of the claim.  The court can sufficiently deal with a failure of this kind by an order requiring compliance with the rules.
16.	LBE did not file a defence and so Miss Sivanandan entered judgement in default.  Before Master Leslie, LBE applied successfully to set aside this judgement.  LBE also sought to strike out the whole action pursuant to CPR 3.4.2 (b) as being, in the light of the striking out of her application to the Tribunal, both an abuse of the process of the court and not open to be litigated by reason of the doctrine of res judicata.  The Master was not persuaded to strike out the whole action but, acting on his own motion pursuant to CPR 3.4.2 (a), he struck out certain of Miss Sivanandan's claims.  I deal only with those which are now live in this appeal from his decision.
17.	He concluded that Miss Sivanandan's contract of employment had been terminated on the 11th December 1996 and that therefore she was not able to claim damages for lost earnings on a continuing basis.  He therefore struck out paragraph 19.1 and the associated paragraph 20.1 (a).  Miss Mountfield accepts that if this was when the contract was terminated damages would not be recoverable on the wider basis, but she contends that the contract never was terminated since LBE's repudiation of it was never accepted and that damages are therefore claimable on a continuing basis.
18.	The Master also struck out the reference in paragraph 19.4 to paragraph 19.1, though without giving reasons.
19.	He also struck out the claims for damages for loss of reputation in paragraph 20.4 and injury to mental health in paragraph 20.5.  His view was that Miss Sivanandan would have no answer to the limitation point, which Miss Romney said would be taken if and when the defence was pleaded.  Master Leslie considered that, the three year limitation period having elapsed, Miss Sivanandan had no prospect of availing herself of the extended time limits provided for by sections 11 and 33 of the Limitation Act 1980.
20.	Miss Sivanandan sought leave to appeal against the striking out of paragraphs 19.1, 20 (1) (a) and the reference to paragraph 19.1 in paragraph 19.4.  Cox J. gave leave to appeal against these strikings out.  Miss Sivanandan did not seek leave to appeal against the striking out of paragraph 20.4 (loss of reputation) or, surprisingly, against paragraph 20.5 (injury to mental health).  However, paragraph 18, which alleged that LBE had caused injury to her mental health, was not struck out and whether or not this part of her claim should be allowed to proceed has been argued fully on both sides.  Therefore, despite the fact that no leave to appeal has been sought or given in respect of paragraph 20.5 I deal with this appeal on the footing that I have to decide whether or not this claim should be struck out.

21.	The position, in my view, is different in relation to the claim for damages for damage to reputation.  This was referred to only in paragraph 20.4 of the particulars of claim, and the decision to strike out this paragraph is not the subject of appeal. It is not open now to Miss Sivanandan to pursue an appeal on this point.  There are therefore three heads of damage which have to be considered in this appeal.  They are all based on LBE's repudiation of Miss Sivanandan's contract of employment.  The first is the claim for damages for injury to mental health and is based on the implied duty of mutual trust and confidence.  The second and third are the claims for damages for loss of earnings and pension rights, the first of these being made on the basis of a continuing contract which has never been terminated, and the second on the narrower basis that the contract was terminated.

22.	It is important to note that Miss Mountfield puts the claim for injury to mental health on the basis that it was the actions of LBE subsequent to Miss Sivanandan's dismissal and its repudiation of her contract which triggered the injuries to her mental health.  Accordingly, whether LBE can prove that she accepted, or is to be taken as having accepted, this repudiation is crucial to whether there is a cause of action on which to base this head of damage.  Miss Mountfield accepts that if the contract was terminated the claim for damages for injury to mental health must fail.

23.	In support of LBE's appeal Miss Romney argued that the Master should also have struck out the claim for damages for loss of earnings and pension rights made on the narrower basis in paragraph 19.2 of the particulars of claim.  Leaving aside the claim in paragraph 20.4, Miss Mountfield argues that none of the other claims which Master Leslie struck out should have been.  She asks that the relevant part of his order be quashed and that his decision not to strike out the whole action should be upheld.

24.	I would add this about the claim for damages for injury to reputation.  Miss Mountfield did not, either in her skeleton argument or in her oral submissions, address me about it but, as I understood her, concedes that whether there was a cause of action would have stood or fallen with whether or not Miss Sivanandan's contract had been terminated.

25.	It is common ground between the parties, resting on the decisions of the Court of Appeal in Gunton v London Borough of Richmond [1980] 1 IRLR 321 and Boyo v London Borough of Lambeth [1995]  IRLR 50, that if Miss Sivanandan did accept or is to be taken to have accepted the repudiation of her contract by LBE that dates back to the date of repudiation.  The consequence of this is that, if there was acceptance, the contract was no longer in existence at the relevant time and, therefore, the implied duty of mutual trust and confidence was no longer in operation when, on Miss Sivanandan's case the injury to her health was triggered.  It follows also that if this be the correct factual basis the damages for loss of earnings and pension rights can only be claimed on the narrower basis set out in paragraph 19.2.  If this is the correct factual basis, Miss Mountfield accepts this.

26.	On the other hand, if the contract was still in force, then there is a fatal flaw in Miss Romney's argument that the injury to health claim must be struck out, following the striking out of the Tribunal proceedings, as an abuse of the process of this court so that, notwithstanding the similarity of the factual issues in the two sets of proceedings, her argument must fail.  The reason is very simple.  An Employment Tribunal has no jurisdiction to consider a claim based on a breach of a contract of employment unless the contract has been terminated.  By regulation 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, as amended, Employment Tribunals were given jurisdiction to deal with claims for damages either arising on or outstanding on the termination of the employee's employment.  Accordingly, the Tribunal would have had no jurisdiction to entertain a claim based on breaches of a contract which was still in being and which did not occur until after the LBE's repudiation.  The doctrines of abuse and res judicata in this field do not come into play unless Miss Sivanandan is pursuing in a second action what she could and should have pursued in her claim before the Tribunal.  The authorities to which I have been referred in argument, but to which I do not need to refer in this part of my judgement, simply do not come into play unless Miss Sivanandan's contract of employment had been terminated.

27.	However, if the repudiation had been accepted, or was to be taken to have been, the Tribunal would have had jurisdiction to consider claims based on breach of contract but, as I have already pointed out, Miss Mountfield accepts there would have been no factual basis for the claim. 

28.	Miss Romney takes another point which, if she is right, would mean she does not have to rely upon acceptance of repudiation.  There was a claim before the Tribunal that Miss Sivanandan had been dismissed from her employment.  Although in her originating application she alleged breach of contract, the breach alleged was not wrongful dismissal.  As to dismissal, what she claimed was that she had been unfairly dismissed.

29.	Section 94 of the Employment Rights Act 1996 creates for an employee the right not to be unfairly dismissed.  Section 95 deals with what is required for there to be a dismissal, namely, that the contract of employment is terminated.  So, Miss Romney argues, although a dismissal may not of itself terminate her contract, when an Employment Tribunal makes a finding that someone has been dismissed the use of this term has to be considered in the context of its jurisdiction in the field of claims relating to dismissal, which is limited to cases in which the contract has been terminated.  I agree with this.  She goes on to point out that in the hearing of the 24th October 1997 the Tribunal found that Miss Sivanandan had been dismissed.  The issue has therefore been decided and is now res judicata.

30.	Miss Mountfield counters this with the argument that, as on the 24th October EREC was a party before the Tribunal, the finding was not a finding that LBE had dismissed Miss Sivanandan.  I do not find this argument persuasive.  Since it is accepted by Miss Mountfield that LBE had repudiated Miss Sivanandan's contract, what matters is that the Tribunal made a finding of dismissal, which was equivalent to saying that her contract had been terminated.  Moreover, although EREC was a party at the outset of the hearing on this date, it was dismissed from the proceedings during the course of the hearing.  The reason why is irrelevant in relation to this point.

31.	However, there is in my judgement another objection to Miss Romney's argument.  At the hearing on the 23rd January 1998 the Tribunal ruled it had no jurisdiction to consider a claim by Miss Sivanandan for unfair dismissal.  Consequently, she withdrew this part of her claim and it was dismissed.  It must follow from this ruling as to its jurisdiction that at the October hearing it had no jurisdiction to make the finding that Miss Sivanandan had been dismissed since, I repeat, the only dismissal claim she was making was one of unfair dismissal.  A finding made without jurisdiction cannot, in my judgement, be relied upon to invoke the doctrine of res judicata.

32.	The application to strike out this claim on the ground of abuse and/or res judicata must therefore fail.

33.	But this is not the end of the matter.  Although Master Leslie struck out the primary claim for loss of earnings and pension rights based on paragraph 20 (a) of the particulars of claim on the basis that the contract had been determined, this was not the ground on which he struck out the claim for damages for the injury to mental health.  As I have said already, he struck this claim out on the limitation point.

34.	My view is that I should consider first whether LBE has proved that Miss Sivanandan has or is to be taken to have accepted its repudiation of her contract.  In the course of Miss Mountfield's submissions I expressed the strong view that if this was proved then, since there would be no cause of action, the question of striking out should be considered in the context of abuse of process and that it was open to me to hear evidence on the point.  She argued against this and did not accept the opportunity I offered her to call Miss Sivanandan.  On reflection I conclude that I was wrong and that Miss Mountfield was right and that the question whether there was acceptance falls to be considered under paragraph (a) of CPR 3.4.2 and not under the abuse provision contained in paragraph (b).

35.	Miss Mountfield stressed that where there is a factual issue to be determined and there is conflicting evidence to be considered a judge should consider long and hard in strike out proceedings before he reaches the conclusion that he can decide it on the material before him.  I accepted and accept that.  She argued that in this case the factual point was not one which could be decided without hearing oral evidence.  Moreover, she argued, there were difficult points of law, not fully resolved, about what amounted to acceptance of repudiation in an employment case and that there were arguments on both sides.  It was not appropriate, she submitted, for me to deal with them in a strike out hearing.  She points out that LBE had not accepted that it was Miss Sivanandan's employer and did not make an application before the Master under paragraph (a) but under paragraph (b).  However, in response to that it is right to point out that the matter has been fully argued on both sides, carefully and at length, and, if it be said there was a focus on paragraph (b), the arguments were equally germane to a consideration of the case under paragraph (a).  Miss Mountfield was not in any way taken by surprise by the case she had to meet and I see no unfairness caused to Miss Sivanandan if the evidence is such as to allow me to reach a conclusion.  The issue is crucial as to whether or not there is the necessary factual basis for a trial upon the issue of injury to health, which could be fairly lengthy.

36.	It is right that I should say something about the submission that there are difficult points of law.  In my judgement the question is one of fact.  There have in the past been two schools of judicial thought about the effect of dismissal of a person from her employment.  One view was that it had the effect of terminating the contract immediately.  The second view was that, in conformity with the general law of contract relating to repudiation, the contract is not determined unless and until the repudiation has been, or is to be taken to have been, accepted by the employee.  This difference of opinion was resolved by the Court of Appeal in favour of the second view in the two cases to which I have referred already.  Miss Romney has not argued to the contrary.  The position would have been different if there were not binding Court of Appeal authority which I must follow, or if I had concluded that the debate between the two views was still open and opted for the first view.

37.	In his judgement in Gunton's case Buckley LJ expressed the view that it should be easy, in the absence of special circumstances, to conclude that a repudiation had been accepted.  In Boyo’s case Ralph Gibson LJ said in paragraph 34 of his judgement:

“Further, if there is a requirement of law for acceptance by the servant of the repudiation by the master, I am unable to see why it is not a requirement for a real acceptance, that is to say a conscious acceptance intending to bring the contract to an end or the doing of some act which is inconsistent with the continuation of the contract.  If that is right, I do not understand how the courts would apply the notion of ‘easily inferring that the innocent party has accepted... the repudiation’.”

Respectfully, I share this difficulty.   In paragraph 52, Staughton LJ said that the repudiation must demonstrate to the guilty party that the contract is accepted as at an end.   Ralph Gibson LJ said in paragraph 39 of his judgement, speaking about the facts of the case before the Court of Appeal:

“If acceptance by the plaintiff of the repudiation was necessary was there acceptance?  In my judgement there was not at any time before the hearing, unless ‘acceptance’ for this purpose can be taken to mean no more than the internal but unwilling acknowledgement that the plaintiff will not escape from being treated as if he had accepted.  As stated above, I do not accept that it can properly be taken to mean no more than that.  I can see no relevance in the fact that the plaintiff had deliberately formulated his case in a particular way for tactical reasons.  If the law permits him to do so why should he not?” 

38.	I do not approach the question whether there was acceptance on the basis that, absent special circumstances, it should be easy to conclude a repudiation has been accepted. As Ralph Gibson LJ said, it has to be either a conscious acceptance intending to bring the contract to an end, or the doing of something which is inconsistent with the continuation of the contract.  It is common ground that the significance of inconsistent actions has to be judged objectively.  It is not open to the employee to say he did not mean his inconsistent act to be understood as an acceptance.  Nor is it open to the employer to say he understood some act to be inconsistent with the continuation of the contract if, looking at it objectively, that was not its effect.

39.	Though accepting this, Miss Mountfield submits it is relevant to making an objective assessment to take account of what Miss Sivanandan was saying to LBE.  What she said showed she was not intending to treat the contract as at an end, so that looking objectively at all the circumstances LBE would not have concluded that she was.  This seems to me really to be a halfway house between an objective and a subjective approach and I do not accept it.  It is important in my view to note that in the first passage quoted from Ralph Gibson LJ's judgement in Boyo's case, which sets out the general law of contract relating to repudiation, he draws a distinction between a conscious acceptance and inconsistent conduct.  Either will suffice to bring an end to the contract.  In my judgement, the consequence of the objective approach is that if the employee has done something inconsistent with the continuation of the contract, it is not open to her to avoid its consequences by saying she did not mean to terminate it and that her employer must have known from what she said that she did not.  The employer is entitled to rely upon the inconsistent conduct and is not required to consider whether the employee really does intend to accept repudiation and whether her earlier words were a true statement of her state of mind or simply represented a bargaining position.  To require this would be to depart from the need to judge objectively what is said to be an inconsistent action.

40.	Once, of course, the repudiation has been accepted the acceptance cannot be withdrawn.  It follows that assertions thereafter that the contract continues in being can be of no avail.

41.	Is there material on which I can safely come to a conclusion as to whether or not Miss Sivanandan accepted LBE's repudiation of her contract or, by reason of her actions of which LBE had knowledge, is to be taken as having accepted it?  I remind myself that the burden of proving there was an acceptance of repudiation is upon LBE.  In my judgement there is an abundance of evidence and it would be wrong of me not to reach and state my conclusion.  I say this bearing in mind that a defendant should not have to contest at trial hopeless litigation and that the courts’ resources, which are finite, should not be eaten into by it.

42.	Miss Sivanandan made her originating application to the Employment Tribunal on the 10th March 1997.  The form which had to be filled in asked her to give the dates of her employment.  She gave them as being from 22/7/96 to 11/12/96.  This seems to me to be a clear indication that the contract of employment was being treated as one which was not continuing.  This impression is reinforced in the details of Miss Sivanandan's application in which she writes, "I was dismissed from my post of Racial Equality Officer on the 11th December 1996," and she explains in a later passage why she says she was unfairly dismissed.

43.	I have referred already to the fact that Miss Sivanandan complained in her application that she had been unfairly dismissed and that her contract of employment had been breached.  As I have pointed out, the Tribunal had no jurisdiction to entertain either of these complaints if her contract of employment was still in force.  It matters not that there was no claim expressed to be for wrongful dismissal.  There was a claim for breach of contract and the Tribunal made it clear in its decision of the 24th October 1997 why this could sound in damages.  Nor does it assist Miss Sivanandan to say the Tribunal had in any event no jurisdiction to hear her claim for unfair dismissal.  

44.	What has to be considered is the objective significance of the making of two claims which in law the Tribunal had no jurisdiction to entertain unless the contract was at an end.  In my judgement, viewed objectively the making of this application was inconsistent with there being a contract of employment which continued in being.  The other features of the application to which I have referred reinforce this assessment.  I conclude, therefore, that the making of this application amounted to an acceptance of LBE's repudiation of Miss Sivanandan's contract.

45.	It is urged upon me by Miss Mountfield however that Miss Sivanandan is not a lawyer, well versed in the procedural and jurisdictional aspects of proceedings before an Employment Tribunal.  I refer in answer to this to the assessment of those who had a good opportunity to assess her competence in this field.  In paragraph 8(d) of the findings of fact made at the Tribunal hearing on the 23 Jan 1998 it is said:

“The applicant is an extremely able and well informed person widely experienced in dealing with the Race Relations Act, and is well aware of her rights.”  

The President of the Employment Appeal Tribunal, Lindsay J., in giving judgement on Miss Sivanandan's appeal against the striking out of her application to the Tribunal said, beginning at paragraph 5 of his judgement:

“Ms Sivanandan is no bewildered rustic with no knowledge or familiarity with the law but a clever and highly articulate woman with, by now (and even at the time of the events of which we shall need to speak) some experience of Employment Tribunal law and practice and the race discrimination law.  She tells us, and it is easy to believe, that she reads and absorbs material relatively quickly.

“She had already, by the time of the events in question, not only conducted a not insubstantial case, one spread over some six days, at the Employment Tribunal on her own behalf but also had helped one or more others to prepare in part or in whole, or to present in part or in whole, their cases, including her addressing Employment Tribunals on those others' behalf.”

46.	Moreover, Miss Sivanandan had to assist her a booklet on Employment Tribunal proceedings, produced to assist litigants in person.  In it there appears this passage:

“How can a contractual dispute be resolved?

Disputes about losses suffered through failure to observe the terms of the contract of employment, as evidenced by the written statement of employment particulars, may usually be determined by an industrial tribunal if they arise or are outstanding on the termination of the employee's employment.  The Tribunal may order payment of arrears of wages, of holiday pay or pay in lieu of notice, and may award damages for wrongful dismissal.”

A little lower down the page one reads:

“Contractual disputes arising during the course of the employee's employment may be resolved only by bringing a claim in the civil courts of law if satisfaction cannot be obtained without recourse to legal action.”

Miss Sivanandan said later she had misunderstood what was written.  I do not accept this.  It is refuted by what was said by the Tribunal and Lindsay J about her abilities.  I have read enough of the voluminous papers before me to be able to conclude that she is a shrewd woman.

47.	In an affidavit dated the 22nd August 1997 prepared for the first hearing before the Tribunal Miss Sivanandan said she had been summarily dismissed on the 11th December 1996 and there are number of references in the affidavit to the fact of her dismissal.  She refers also to a letter of the 6th January 1997 which she had written to an LBE councillor, Councillor Bond, in which she had said she could not legally have been dismissed, but this is not the same as an assertion that the contract was continuing and nowhere in this affidavit does Miss Sivanandan assert that it was.  In another affidavit dated the 17th November 1998 filed with the Tribunal, she said her application concerned her summary dismissal.  This explanation was repeated in affidavits dated the 21st December 1998 and the 16th May 2000 in support of interlocutory appeals she made to the Employment Appeal Tribunal.  These references in these affidavits are in my view consistent with what was said in the originating application and inconsistent with the proposition that the contract of employment was still in being.

48.	The making of the originating application to the Tribunal was not, in my judgement, the only occasion on which Miss Sivanandan's acts were inconsistent with the continuance in being of her contract of employment.  On the 9th of September 1997 she had begun proceedings in the Central London County Court against the LBE.  By a letter dated the 8th September she had written to the County Court explaining she was lodging a claim in order to reserve her rights pending the outcome of the Tribunal proceedings.

49.	The claim did not relate to breach of contract or the dismissal of Miss Sivanandan from her employment.  However, on the 12th January 1998 she sent to LBE a copy of the application she had made to the County Court to amend her particulars of claim to add a claim for breach of contract and wrongful dismissal.  The amendment states she was summarily dismissed on the 11th December 1996 and that this was a wrongful dismissal in breach of her contract of employment.  It also stated that Miss Sivanandan had been employed by LBE between the 22nd July 1996 and the 11th December 1996.  In the event, though applied for, this application was never considered by the County Court.  LBE had filed an application to strike out her action and she withdrew it on the 12th May 1998.

50.	In Gunton's case Buckley LJ said at paragraph 25 of his judgement:

“If, however, a dismissed servant sues for damages for wrongful dismissal, he must by so doing accept the master's repudiation of the contract.”

I do not think it matters that the application to amend was not considered by the County Court.  It had clearly been Miss Sivanandan's intention to amend her claim if she could and she took steps to achieve her intention by sending her application to the court.  This was to act inconsistently with the continuance of her contract.  To seek to claim that in breach of her contract of employment she had been wrongfully dismissed in order to claim damages was to say no other than that her contract was at an end.

51.	The next step in the proceedings before the Tribunal which I have to consider was that on the 6th August 2000 when Miss Sivanandan wrote to it to give notice of her intention to seek leave to amend her originating application to add a claim for wrongful dismissal.  I have said already that in the event, although the Tribunal was to have considered this application for leave to amend, it never did because consideration was overtaken by the decision to strike out her claim.  What I have said already about the significance of the application to amend the particulars of claim in the County Court applies with equal force to this application and I do not need to repeat it.

52.	In September 2000 there came what I can only regard as a change in Miss Sivanandan's position from anything she had said previously in any documents she had put before the Tribunal.  Her affidavit of the 22nd September was prepared for the purpose of the strike out application before Master Leslie.  In paragraph 25 she said that in correspondence with Councillor Bond and the LBE:

“… in using the term "reinstated", I did not accept that I had been dismissed by LBE.  Rather I used the word "reinstated" as a way of asking to be allowed to return to work and carry out my duties.  I was of the opinion that a contract of employment still continued between us.”

It was in this affidavit, in paragraph 28, that Miss Sivanandan said she had misunderstood the booklet to which I have referred already.  It is a matter of surprise that someone of her calibre who is saying she had never regarded her contract of employment as being at an end should never have made this clear in any of the documents she provided to the Tribunal or to the Employment Appeal Tribunal.  I note that when, in relation to her County Court action, she thought it important to make clear that she reserved her rights and was bringing that action as a precautionary measure she did just that.  I am driven to reject what Miss Sivanandan says.  It is in my view wholly inconsistent with what she had said in the Tribunal proceedings before this.

53.	I do not overlook the various letters about which Miss Mountfield has addressed me to which I must now make reference.

a) In a letter to Councillor Bond dated the 16th January 1997 Miss Sivanandan said she believed the procedures adopted to dismiss her were null and void.

b) On the 28th January 1997 she wrote to the chief executive asking to be reinstated.

This, however, was six weeks before Miss Sivanandan made her application to the Tribunal.  Since that application amounted in my judgement to an acceptance of the repudiation, what she said in later correspondence cannot avail her.  Nonetheless, I shall refer to it.

a) On the 27th October 1997 Miss Sivanandan wrote to the chief executive of LBE saying she had never been disciplined or dismissed by LBE and made a formal request to be reinstated.

b) On the 15th December 1997 she wrote threatening the chief executive that if she was not reinstated she would take legal action.

Throughout all this correspondence LBE continued to maintain it had not been Miss Sivanandan's employer.  Then there followed in January her application to amend her claim in the County Court.

54.	On the 27th April 1998 Miss Sivanandan wrote to the chief executive complaining that LBE had refused to reinstate her despite the ruling by the Tribunal "that I was employed by the LBE"  (my emphasis).  She goes on to make formal complaints against the chief executive and other officers and against certain LBE councillors.  The penultimate paragraph of this letter reads:

“Please inform me in writing whether these complaints will be dealt with as if I am an ex-employee of LBE or as a member of the public.”

In my view the reference to herself as an ex-employee, without any protest that her contract is still in force, connotes a clear acceptance by her of the repudiation.

55.	I have identified three stages at which, in my judgement, Miss Sivanandan's conduct was inconsistent with the continuance in being of her contract of employment with LBE.  I bear in mind that in paragraph 39 of his judgement in Boyo's case Ralph Gibson LJ said:

“I can see no relevance in the fact that the plaintiff had deliberately formulated his case in a particular way for tactical reasons.  If the law permits him to do so why should he not?”

However, that was a case in which the trial judge had concluded that the plaintiff had accepted his employer's repudiation of his employment contract at about the time when he obtained a hearing date and so had firmly committed himself to a contested hearing.  Although he had made an application to an Industrial Tribunal, alleging unfair dismissal, there is nothing in the report about the outcome of those proceedings and no point had been taken in the defence that they had amounted to an acceptance of the repudiation.  This point was simply not before the trial court or the Court of Appeal.  The Court of Appeal was not called upon to consider the issues in relation to acceptance which have been before me and I do not think the sentence I have quoted from Ralph Gibson LJ's judgement can assist Miss Sivanandan.  I conclude, therefore, that LBE's repudiation of her contract was accepted by her and that this acceptance must be dated back either to the 11th December 1996 or the 11th January 1997.  It follows from Miss Mountfield's concession that, at the time when the injury to Miss Sivanandan's mental health was triggered, there was no longer in existence any contract of employment which could be breached so as to give rise to a cause of action.

56.	It also follows from the decisions in Gunton's and Boyo's cases, as is conceded, that if the repudiation of Miss Sivanandan's contract was accepted the claim for loss of earnings and pension rights can only be made on the narrower basis.

57.	I therefore uphold Master Leslie's decision to strike out paragraph 19.1, the reference to this paragraph in paragraph 19.4 and paragraph 20.1 (a) of the particulars of claim in this action.

58.	It is appropriate to say something about the ground upon which Master Leslie struck out the claim for damages for injury to mental health.  He said that the primary limitation period had expired, as indeed it had, and that he considered Miss Sivanandan had no realistic prospect of avoiding the bite of section 14 of the Limitation Act 1980.  He turned then to section 33 and concluded she would not be able to succeed in obtaining the benefit of the discretionary exclusion of the time limit for which it makes provision.

59.	Miss Romney has taken me to the parts of Miss Sivanandan's own documents which impact on the date of knowledge issue and to the medical letters and reports which also have a bearing on it.  I have considered also the provisions of section 33.  I am bound to say that I see much force in the Master's view about the limitation point.  Miss Mountfield submits, though, that it was wrong for him and would be wrong for me to come to a conclusion on the limitation point.  There might be, she argues, other relevant evidence which Miss Sivanandan might be able to produce on the limitation point, including further medical evidence.

60.	Despite my strong suspicion that such an exercise might not have proved very profitable there is a further and, to my mind, very important factor which has to be taken into account.  Whereas Miss Sivanandan was on notice that the LBE would contend in the strike out application before the Master that her contract had been terminated and that any repudiation had been accepted by her (see paragraph 43 (b) of Miss Hussein's third statement of the 14th August 2003), she was not on notice that a limitation point would be taken.  Accordingly, she did not come before Master Leslie equipped to deal with the point.

61.	In the circumstances, despite there being material to support his view, it was not fair to Miss Sivanandan that the limitation point should be taken against her without notice.  LBE had not yet pleaded to her particulars of claim.  However, while it intended, if the action was not struck out, to include a limitation plea in its defence, it had obviously taken the conscious decision not to take the point before the Master.  If, therefore, I had not found against Miss Sivanandan on the contract termination point I should have declined to consider the limitation point and do not do so now.

62.	I come finally to the application by LBE to strike out the claim for loss of earnings and pension rights made under paragraphs 19.2 and 20.1 (b) of the particulars of claim, made on the alternative basis that Miss Sivanandan's contract of employment was terminated.  Miss Romney contends that to bring a separate action in the High Court is an abuse of process on a number of bases.  However, before I consider them I must decide whether the claim for loss of earnings and pension rights was withdrawn from her application to the Tribunal, as Miss Sivanandan asserts.

63.	There is no provision in the rules of procedure for Employment Tribunals which deal with the amendment of an originating application by withdrawing a part of the claim.  One way in which it is dealt with in practice is by dismissing that part of the claim which has been withdrawn and noting in the Tribunal's record that it is dismissed, having been withdrawn.  However, it has not been suggested either by Miss Romney or Miss Mountfield, both experienced in this field, that this is the universal practice.  Miss Romney accepts that if an applicant announces her withdrawal of a part of her claim, even though it has not been dismissed, she could not expect to be allowed to reinstate it without good cause.  Both sides accept that a claim cannot be regarded as having been withdrawn unless the applicant has shown a clear intention to withdraw it and that the ambit of what has been withdrawn is clear.  (It seems to me that if the intention is clear only as to part, or the ambit of the withdrawal is clear only as to part, a withdrawal could only be effective as to the relevant part.)

64.	Miss Sivanandan's case is that at the review hearing on the 23rd January 1998 she did withdraw her claim for damages for loss of earnings and pension rights in terms which were clear both as to her intention and as to the ambit of what was withdrawn.  The evidence of withdrawal is to be found in a note which she asserts is of an exchange between herself and the chairman of the Tribunal at this hearing.

“After lunch 2-06 pm

“Chair - Breach of contract cl.  allowed.  Failure to give correct info. re griev.  and disc.  proced - clearly gives rise to cl. in damages.  Do not accept Mr Cawston’s arg. on this.  However, limit to damages for claim in IT -£25,000  Can bring claim in county or High court

“NS - Taken advice.  Intend to pursue in C. C. cos of limit in IT.  Have already informed LBE re   intention to do so   Not pursuing in IT -only point in ITI is re incorrect info given

“Chair - Matter for you.  Can bring in trib. or court.”

After these passages the note goes on to deal with Miss Sivanandan's application to join the members of EREC's executive committee as parties.

65.	I am bound to say that this note is not easy to reconcile with the Tribunal's record of its proceedings.  Paragraph 5 of the Extended Reasons records the submission made on behalf of the solicitor for LBE to the effect that a breach of Miss Sivanandan's contract of employment by not following its own dismissal procedure did not give rise to any loss to her.  The record notes that the failure to follow a disciplinary procedure, the effect of which might be to extend employment, can give rise to a claim in damages.  This accords with the first part of Miss Sivanandan's note.

66.	But the next record is of the finding that it does have jurisdiction to deal with her claim for damages for breach of contract.  This does not appear in her note.  The Tribunal's records make no mention at all of the important exchange which ends with Miss Sivanandan saying she is not pursuing her claim before the Tribunal.  In fact, the next point dealt with in the record is her application to join members of EREC's executive committee.  Further, although the dismissal on withdrawal of Miss Sivanandan's claim for unfair dismissal is recorded in the decision section of the record for this hearing, the Tribunal has not adopted the same practice in relation to the withdrawal of the claim in contract.

67.	Miss Romney tells me that LBE does not accept the accuracy of Miss Sivanandan's note.  However, no contrary evidence has been adduced and she invites me to accept the note at it its face value and not to question its accuracy or veracity.  In these circumstances it would not be appropriate for me to question it.

68.	The question for me, therefore, is whether the note is clear in the two respects of which I have spoken.  Miss Romney urges upon me that it is not.  Miss Mountfield submits that it is.  The question is one of impression which will not be illuminated by discussion.  In my view the exchange between Miss Sivanandan and the chairman, as noted by her, does have the two requisite features of clarity and did operate to withdraw her claim for damages for loss of earnings and pension rights from her application to the Tribunal.  It is true that earnings and pension rights are not mentioned in the note but it is clear from the nature of the discussion with the chairman of an Employment Tribunal, as described in Miss Sivanandan's note, what it was that was being referred to.

69.	I asked Miss Romney whether the value of the claim under paragraph 20.1 (b) of the particulars of claim was less than £25,000.  Her reply was that the materials before me did not enable me to conclude that that was the case.  It cannot, therefore, be argued that to bring this claim in separate proceedings when it fell within the financial limit of the Tribunal's jurisdiction in contract is an abuse of process.  Nonetheless, Miss Romney argues that for Miss Sivanandan to bring a claim in the High Court for damages for loss of earnings and pension rights when she had made a claim for breach of contract in her application to the Tribunal and it had ruled it had jurisdiction in relation to it is an abuse of process.

70.	She relies on the decision of the Court of Appeal Securum Finance v Ashton [2001] 1 Ch 290.  In that case an action by a bank for the repayment of a loan was struck out by reason of delay.  Thereafter, a second litigant, as the bank’s assignee, brought an action within the limitation period to enforce the rights assigned by the bank to him.  He also had a second claim which had not been raised in the first action.  To make this good, the claim which was raised in the first action had also to be established.  The Court of Appeal took the view that, but for this, the second action would have been struck out as an abuse.   At paragraph 34 of his judgement Chadwick LJ said this:

“For my part, I think the time has come for this court to hold that the ‘change of culture’ which has taken place in the last three years - and, in particular, the advent of the Civil Procedure Rules - has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases.  The position, now, is that the court must address the application to strike out the second action with the overriding object of the Civil Procedure Rules in mind - and must consider whether the claimant's wish to have ‘a second bite at the cherry’ outweighs the need to allot its own limited resources to other cases.  The courts should now follow the guidance given by this court in the Arbuthnot Latham case [1998] 1 WLR 1426, 1436-1437:

“The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action, and any excuse given for the misconduct of the previous action: see Janov v Morris [1981] 1 WLR 1389.  The position is the same as it is under the first limb of Birkett v James.  In exercising its discretion as to whether to strike out the second action, the court should start with the assumption that if the party has had one action struck out for the abuse of process some special reason has to be identified to justify a second action being allowed to proceed.””

71.	Miss Mountfield relies on another decision of the Court of Appeal, Sajid v Sussex Muslim Society [2002] IRLR 113.  In that case the applicant before an Employment Tribunal withdrew his breach of contract claim because his damages exceeded £25,000.  The Tribunal recorded its decision that  "The breach of contract claim is dismissed on withdrawal by the applicant". He then began civil proceedings for breach of contract.  The Court of Appeal held that there was no relitigation of a cause of action which had been litigated and finally determined and disposed of by the Employment Tribunal.  In paragraph 18 of the report Mummery LJ said:

“The consequence of upholding the pleas in paragraphs 1 and 2 of the defence would be unjust.  It would not expose the society to any injustice but it would inflict injustice on Dr Sajid, because it would prevent him having his claim determined on its merits, which it had not been in the employment tribunal.  The consequence of this appeal succeeding would be that Dr Sajid could not pursue his claim in the employment tribunal, because of the order of 6 May 1999, and he could not pursue his claim in the High Court or the County Court because - Mr Rogers says - of the effect of the order made on 6 May.  So by a neat, technical swipe the society would have eliminated a substantial claim without any Tribunal or court having heard any evidence or argument about it.  That seems to be a decision to which this court is not driven by any principle of cause of action estoppel.”

At paragraphs 22 and 23 Laws LJ said:

“I entirely agree.  As my Lord has said, the policy which justifies the doctrine of cause of action estoppel is the need to prevent multiplicity of legal proceedings being raised upon the same issue.  If this court were to allow this appeal, far from supporting that policy we should undermine it.  The respondent’s common law claim in the tribunal (being withdrawn) was, on 6 May 1999, dismissed upon the very premise and for the very reason that it should not been litigated there but in another forum.  That dismissal thus supported the policy underlying the cause of action estoppel to which I have referred. 

“Mr Rogers' argument, if accepted, would entail the conclusion that a party acting as the respondent did here would find himself trapped by the very doctrine to which he himself had been loyal, for ever barred from having his claim for damages over £25,000 litigated at all.  If the law produced such a result we should be ashamed of it.  But it does not.  We do not allow salutary principles to be corrupted into instruments of injustice.”

72.	In my judgement Sajid's case makes it quite clear that for Miss Sivanandan to withdraw her claim from her application to the Tribunal to make a separate claim in civil proceedings was not an abuse.  However, Ms Romney submits there are further matters to be considered.

73.	She points out that if Miss Sivanandan's claim for racial discrimination had succeeded she would have been entitled to claim for loss of earnings and pension rights with no upper limit.  So, Miss Romney submits, to bring a separate action for the purpose of making this claim is an abuse of process.  She points out that in Sajid's case there was not a claim before the Employment Tribunal which had the effect of removing the cap on damages.

74.	I am not in the least persuaded by this argument.  Suppose a woman has suffered a loss by reason of a breach of contract, it is not an abuse of process for her not to include her claim for damages for breach under the umbrella of another complaint which she must win in order to avoid the cap on contractual damages when in civil proceedings there is not and success is not dependent on proving the other complaint.

75.	Nor is there any abuse in the fact that Miss Sivanandan sought in her County Court action to add a claim for wrongful dismissal.  She was faced with an application that these proceedings were an abuse and withdrew them.  There was never a live contractual issue in that action which might have given rise to an argument that this present action is an abuse.  Even when the withdrawal or discontinuance of an action can be said to give rise to an abuse argument or a plea of res judicata this could not apply in Miss Sivanandan's case to a subsequent action brought in contract.

76.	Nor can the dismissal of Miss Sivanandan's originating application to the Tribunal subsequently to her application to amend her originating application to add a claim for wrongful dismissal be relied upon by way of res judicata.  The amendment was never made and one cannot consider the question of abuse on the assumption that there was an amendment.  It would be to speculate to say that if the application had been considered it would have been granted and to approach an argument based on abuse or res judicata as though it had been.  Unless and until the application was amended there was no contractual claim before the Tribunal for damages for wrongful dismissal.

77.	Lastly, Miss Romney complains that the manner in which Miss Sivanandan has threatened LBE with civil proceedings, withdrawn them and then, on almost the last day of the limitation period, began her present action in the High Court amounts to an abuse of the process of this court.  One might call this a rolled up plea and whether it is well made cannot be judged without analysis of the point being made.  It embodies abuse arguments I have considered already and I am conscious of the fact that I shall be to some extent repeating myself.

78.	First, it has to be kept in mind that the question is whether, in the context of the earlier litigation between Miss Sivanandan and LBE, it is an abuse for her to make in the High Court a claim in contract for wrongful dismissal.  On the hypothesis that that claim was no longer before the Tribunal when her originating application was struck out it cannot be said she was attempting to relitigate an issue which had already been disposed of, and I have explained already why, in the light of Sajid's case, there was no abuse in withdrawing that claim from the case before the Tribunal.  Nor could it be said that any further proceedings Miss Sivanandan chooses to bring against LBE following the striking out of the Tribunal claim should, simply by virtue of that fact, be regarded as an abuse.  That would be to treat her as though she had been declared a vexatious litigant in relation to proceedings against LBE.

79.	Returning to the County Court proceedings, the particulars of claim did not make any claim for damages for breach of contract.  Miss Sivanandan's application to add a claim for wrongful dismissal was followed by an application to strike out her particulars of claim on a number of grounds.  It was said that in their unamended form she was out of time, that they disclosed no cause of action and were an abuse of process.  The proposed amendment was opposed as a further abuse since, it was said, this claim was already before the Tribunal.  Approaching this on the basis that this claim had been withdrawn from the Tribunal proceedings, this proposal did not amount to an abuse.  Next, on the assumption that the rest of the claim was an abuse, its withdrawal cannot found an argument for the abuse for the reasons I have given already in relation to the dismissal of the claim to the Tribunal.

80.	The authorities to which I have been referred show that res judicata and abuse of process can be invoked against a litigant to protect his opponent from harassment and also to protect the court from having a demand made on its resources which, in the interests of justice and litigants in general, ought not to be made.  It can be invoked when an attempt is made to relitigate issues which have already been litigated, when the blame for the fact that issues previously before the court were not litigated to a conclusion lies with the party who seeks to bring them before the court again and when a party seeks to litigate issues when he has had the opportunity, to litigate them in an earlier action.

81.	For the reasons I have given LBE has not made out its case on res judicata and abuse.  Nor have I been persuaded that Master Leslie was wrong to strike out those parts of the particulars of claim which he did, albeit I have reached a conclusion in relation to the claim for damages for injury to health for different reasons.  The result is that both the appeal and cross-appeal are dismissed.

82.	Miss Sivanandan wishes to amend her particulars of claim.  In giving leave, Cox J said her proposed amendments should be considered at the hearing of these appeals.  Having seen what was proposed it seemed to me and to counsel that it would be better not to follow this course but to give directions for the making of amendments.

83.	I conclude by saying that in a case in which there are a lot of documents I generally give the page references to those I refer to in my judgement.  Deliberately, I have not done so in this case.  The papers have been put together with no apparent thought as to how the order in which they were assembled might best help the court to tackle the issues before it.  One might be forgiven for thinking that, like Topsy, they “just growed”.  Nor was any adequate index provided until this was to an extent remedied by an index prepared by Miss Romney part way through the hearing, for which I am grateful.  If this judgement has to be considered in any other court I hope those documents which are needed can be put into a proper order and the new page numbers added to it.