High Court strikes out excessive pleadings and stays employment claim pending Employment Appeals Tribunal outcome.

NEUTRAL CITATION 2010 IEHC 540

THE HIGH COURT

[2008 No. 10492 P)

BETWEEN

KATHERINA STEPHENS

PLAINTIFF

AND

ARCHAEOLOGICAL DEVELOPMENT SERVICES LIMITED DEFENDANT

JUDGMENT of Mr. Justice John MacMenamin delivered the 21st day of December, 2010

1. By notice of motion dated the 9th November, 2009, the defendant seeks, in summary:-

(i) An order pursuant to the Rules of the Superior Courts striking out matters in the plaintiff's statement of claim said to

be unnecessary, scandalous, or which would tend to prejudice, embarrass or delay a fair hearing of the claim;

(ii) Alternatively, in order that the entire statement of claim be struck out on the grounds that the pleadings, inter alia,

by reason of the plaintiff pursuing her claims in the Employment Appeal Tribunal as well the High Court therein amounting

to an abuse of process, or are vexatious;

and/or

(iii) An order that this Court decline jurisdiction to hear the matter pleaded in the claim as no prior authorisation for the

proceeding was granted by the Injuries Board.

2. To understand what follows it is necessary to deal with the background to the claim in some detail. It must be emphasised that

what follows do not constitute findings of fact, but rather the evidential framework of the procedural issues which arise herein. The

precise basis for the reliefs claimed are outlined specifically in the judgment.

3. The plaintiff commenced her employment with the defendant on or about the 5th December, 1997. She was employed as an

Operations Manager, a position which she held up to her cessation of work on or about the 17th October, 2008. The defendant

company is a small one engaged in archaeological consultancy work.

4. It appears that the plaintiff enjoyed a relatively close relationship with the company's owners. It is said a meeting took place

between them in August, 2007, they discussed the possibility that Mr. Stephen Ryan, a former member of staff (previously the

company financial controller), might be rejoining the company. The plaintiff pleads that at this meeting she was assured - and it was

agreed - that Mr. Ryan would not be put in a position superior to her own, and that any such appointment would not be made without

her consent.

5. The plaintiff claims that in breach of this agreement, Mr. Ryan was appointed to the post of Chief Executive Officer in September,

2007. The plaintiff says that thereafter the Chief Executive engaged in a campaign of intimidation and harassment which placed her

future employment in question.

6. Late in 2007, the plaintiff was diagnosed with breast cancer. She was on sick leave for upwards of one year. This continued until

the 10th October, 2008. On the 17th October, 2008, a meeting took place between herself and Mr. Ryan. The plaintiff pleads that Mr.

Ryan imposed a number of onerous and unlawful conditions on her return to work. Matters reached an impasse. The plaintiff consulted

her legal advisers. There was extensive correspondence between solicitors. On the 7th November, 2008, Eamon Murray & Company,

solicitors for the plaintiff, wrote to the defendant company complaining that, when the plaintiff had reported back to the office for

work, her personal belongings were nowhere to be found, and that Mr. Ryan insisted that if she wished to return to work her desk

would have to be placed beside his. The plaintiff says she was forbidden to return to work unless she undertook to comply with these

conditions and gave undertakings as to her future conduct.

7. In the same letter (of 7th November, 2008) the plaintiffs solicitor alleges that after the same meeting, a series of emails followed,

ending in a message received from the company on 4th November, 2008, where the company sought to meet her to negotiate an

agreed resolution to the dispute, and affirming the company's intention to defend any claims. At about the same time, it is said that

the payment of the plaintiffs salary ceased. The plaintiffs solicitors claim that this conduct amounted to a de facto "dismissal''.

8. In the course of the 7th November letter the plaintiffs solicitors wrote:-

"... We believe that we need not advise you of the other remedies that are open to our client in relation to the

injury and loss that she has suffered at the hands of the company and separate remedies that she has in respect of

her wrongful dismissal." (Emphasis added).

The significance of the reference to "wrongful dismissal" will be explained later in this judgment.

9. The defendant's solicitor, Brannigan & Company, responded on 18th November, 2008. Their letter indicated that the defendant had

no difficulty in paying the plaintiffs salary upon her return to work, but that such payment was conditional on her actual return. The

letter also mentioned the possibility of a meeting between solicitors. Further correspondence took place in the month of November.

However, this talk of negotiation came to nothing. The plaintiff did not return to work. She did not receive her salary.

10. Proceedings were issued on the 8th December, 2008. The contents oft he pleadings will be considered in detail later. They form

part of the matter in issue.

11. Later, on 24th March, 2009, Murray & Co. wrote, reiterating that the plaintiff had received no pay since October, 2008 and that

she now regarded herself as having been constructively dismissed. They added "...we now propose to bring an application to the

Employment Appeals Tribunal in addition to our High Court proceedings".

12. On the 16th June, 2009, the defendant's solicitors responded, seeking a date to be identified as to when the plaintiff asserted

that she had left the company and also seeking a letter of resignation.

13. On the 14th July, 2009, the defendant's solicitors wrote to Murray & Co. making a number of points. These were in summary:-

1. that the plaintiff had never sought the interlocutory injunctive relief claimed in her High Court proceedings;

2. that the plaintiff was not entitled to commence constructive dismissal proceedings before the Employment Appeals

Tribunal as well as the High Court proceedings;

3. that the plaintiffs High Court proceedings purported to advance a personal injuries suit on behalf of the plaintiff, where

no prior application had been made to the Injuries Board.

They called on the plaintiff to withdraw the proceedings. They contended that the plaintiff was not entitled to pursue her claim for

payment under the Minimum Notice and Terms of Employment Acts in the circumstance where a claim of constructive dismissal had

been brought by the employee and where the contract was terminated without notice.

The pleadings

14. In the plenary summons issued on the 8th December, 2008, the plaintiff sought, in summary, injunctions restraining the defendant

from:-

(a) demoting the plaintiff or removing her from her position of operations manager in the absence of fair procedures;

(b) treating the plaintiff as other than in continued employment of the defendant;

(c) advertising, recruiting or appointing any other person to carry out the plaintiffs work or position;

(d) taking any steps inconsistent with the plaintiffs continued employment;

(e) interfering with the plaintiff discharging her responsibility as operations manager.

and ordering the defendant:-

(f) to take steps to protect the health and safety of the plaintiff in accordance with the defendant's policies;

(g) to pay the plaintiffs salary in full pending the hearing of the action:

on foot of these the plaintiff also claimed

(h) damages including aggravated or exemplary damages for breach of contract, misrepresentation, breach of warranty,

breach of a relationship oftrust and confidence, negligence, breach of fiduciary duty, infringement of the plaintiffs

constitutional rights, breach of statutory duty, wilful infliction of mental distress;

(the above is a summary of the claimed reliefs: not a quote from the pleadings).

15. An appearance was entered to the plenary summons on the 12th December, 2008. This was unconditional.

16. Between the time of the plenary summons and the statement of claim (delivered on 20th March, 2009), the plaintiff did not apply

to court for interlocutory relief. It is said now that this was as a consequence of her sense that, by then, there had been a

breakdown in the relationship of trust and confidence between herself and her former employers, such that interlocutory relief would

have been futile.

The statement of claim

17. The statement of claim is a rather long document. It is some 26 pages. In addition to the reliefs outlined, it contained two

aspects which are criticised.

18. The first of these, set out after para. 10 of the statement, is headed "Particulars of Harassment, Intimidation and Stress Inducing

Events". Thereafter, there follows a detailed narrative of events said to have taken place between August/September, 2007 and 20th

October, 2008. This material includes accounts of conversations, quotations from emails and the plaintiffs alleged reaction thereto.

19. The second arises from further particulars set out after paragraph 12. These are headed "Particulars of Personal Injury including

Mental Distress, Damage to Reputation, Loss, Damage, Inconvenience and Expense". They set out the plaintiff's sense of 'harassment'

as a result of what are said to be the "persistent phone calls, voicemails and emails" during the period of her sick leave. It is said this

caused her physical and mental distress. It describes her concern when she found her desk had been cleared out when she returned

to work. These particulars did not contain anything amounting to a psychiatric or medical report; but the plaintiff reserved the right

to furnish particulars of personal injury, including mental distress between the time of delivery of the statement of claim and the

hearing of the action. It was claimed that the plaintiff awaited reports in relation to the psychological and mental stress which she

suffered as a result of the defendant's actions.

Sequence of issues now considered

20. The reliefs sought by the moving party in this notice of motion were set out at the commencement of this judgment. However, as

a matter of logic, it follows that these should be taken in reverse order. Any question of the mere content of the pleadings would be

entirely otiose were the court to hold first that it had no jurisdiction to entertain a claim at all as the plaintiff should first have made

application to the Injuries Board, or were the court to conclude that the proceedings were an abuse of process, or that the Claim

should be struck out as being vexatious or scandalous. Consequently, I turn first to the questions as to whether the court has

jurisdiction to entertain the claim.

Should the plaintiff have first applied to the Personal Injuries Board?

21. It will be recollected that the plaintiff pleads that she was subjected to intimidation, harassment and stress. For this reason the

defendant contends that the proceedings should not have been initiated without prior application to, what is now, the Injuries Board.

In the absence of any interlocutory relief having been pursued, the defendant says the claim brought should be reduced to what was

effectively a wrongful dismissal action claiming damages for personal or psychological injuries inflicted on the plaintiff. Thus it should

have gone to the Injuries Board as a preliminary step.

The Personal Injuries Assessment Board Act 2003

22. The legislative intent behind the Act of 2003 has been recently considered by O'Neill J. in Sherry v. Primark [2010] IEHC 66

(Unreported, High Court, O'Neill J., 19th March, 2010). The issue which arises here, however, is more discrete one. It is confined to

the facts of this particular action. The point is simply whether this set of proceedings is captured by the legislation.

23. It is necessary first to consider the provisions of the Personal Injuries Assessment Board Act 2003 ("the 2003 Act"). Section 3 of

that Act provides:-

"This Act applies to the following civil actions-

(a) A civil action by an employee against his or her employer for negligence or breach of duty arising in the course

of the employee's employment with that employer ... "

The question which arises is whether this is, in fact, an action of an "employee" against an "employer" for "negligence or breach of

duty" such that it is captured by s. 3(a) of the Act of 2003. Were it so it would have been necessary for the plaintiff to apply first to

the Injuries Board.

24. It is necessary to consider also the provisions of s. 4 of the Act. This section defines a "civil action" as being:-

"... an action intended to be pursued for the purpose of recovering damages, in respect of a wrong for -

(a) personal injuries, or

(b) both such injuries and damage to property...

but does not include

(i) an action intended to be pursued in which, in addition to damages for the foregoing matters, it is bona fide

intended and not for the purposes of circumventing the operation of section 3 to claim damages or other relief in

respect of any other cause of action." (emphasis added)

25. If these proceedings come within s. 3 of the Act, then clearly, by virtue of ss. II and I2 of the Act, the Court has no jurisdiction,

as no prior application was made to the Injuries Board.

26. The issue which arises here is one of jurisdiction; not discretion under s. 17(d) of the Act. There is there a discretion vested in

the Injuries Board not to arrange for the making of a medical assessment in circumstances which include where the injuries consist of

psychological damage. There is a faint echo of s. 4, however, where s. I7(iii) provides that the Injuries Board may, within its

discretion, decide not to arrange for the making of an assessment

"(iii) ... because aggravated or exemplary damages are bona fide, (and not for the purposes of circumventing the

operation of the Act) sought to be recovered in the claim."

I do not interpret this statutory provision as reducing the jurisdiction of the Injuries Board however. Rather, it is an identification of a

discretion vested in the Board in proceedings which should properly have been the subject matter of an application. The pursuit of

aggravated or exemplary damages in a claim does not, in itself, remove a case from the jurisdictional scope of the Act.

27. The plaintiffs case is that this is not a personal injuries action for negligence or breach of duty as normally understood. By

affidavit, the plaintiffs solicitor, Ms. Clare Murphy, deposes that, when the proceedings were brought "it was a bonafide intention of

the plaintiff to seek injunctive relief to compel the defendant to facilitate the plaintiffs return to work". However, she adds, as

matters evolved, it became apparent that any relationship of trust and confidence between the parties had completely broken down.

Ms. Murphy accepts that some of the reliefs sought in the original pleadings are no longer appropriate. On behalf of her client, she

specifically abandons any claims for relief by way of injunction at this point. Counsel for the defendant submits that these claims

should simply be struck out and that, absent such claims for equitable relief, the case should properly be seen as an action for

personal injuries or breach of duty, thus falling within the terms of s. 3 of the Act of 2003.

28. The defendant lays some emphasis on the letter of the 7th November, 2008, wherein Murray & Company specifically warned of the

"other remedies" that were open to their client in relation to the "injury and loss" that she has suffered and the "separate remedies

that she has in respect of her wrongful dismissal". It is said this is now a de facto “wrongful dismissal claim" seeking damages for

personal injuries.

29. • The question here is first one of statutory interpretation, and second, the application of the statute to the facts of this case.

To use the term employed by the drafter in s. 4 of the Act: is this an action "intended to be pursued for the purpose of recovering

damages for personal injuries"; or is it, rather, an action intended to be pursued in which, in addition to damages for personal injuries,

it is bona fide intended to claim damages for other relief not for the purpose of circumventing the operation of s. 3 of the Act?

30. The interpretation of s. 3 and s. 4 together must, of course, be objective. Subjective "intention" cannot be determinative in itself.

However, I consider that the true meaning of s. 4 necessitates that a court must look first to what was the actual intention of the

plaintiff in 'pursuing' the proceedings. I am of the view the test which should be applied is as to that "intention" at the time of the

initiation of the proceedings; because it was then, and only then, that the relevant "intention" was formed. If it had been the

intention of the plaintiff then to circumvent the operation of s. 3 of the Act, plainly the action should be struck out. The court must

also address the question as to whether there was a bona fide intention to claim damages or other relief in respect of any other

cause of action. Again, this must not be for the purpose of circumventing the operation of section 3.

31. The defendant relies on the correspondence to which reference has been made earlier. The relevant portions have been set out.

There is the reference to a potential claim for wrongful dismissal. But I do not consider this as sufficient evidence to establish mala

fides. I do not consider this as determinative evidence as to the plaintiffs state of mind or "intention" when the proceedings were

brought. There was nothing to prevent at least an application for an injunction in December, 2008. Such application would not have

been out of the question, whatever its outcome. I am unable to find the letter as evidence of subsequent mala fides, or an intention

to circumvent the operation of the Act. In fact, there is only one piece of actual evidence directly on the question of intention, and

that is Ms. Murphy's affidavit sworn on behalf of the plaintiff, to which reference has just been made. It is important to emphasise

that no counter balancing evidence of any equal weight has been adduced on this important question of intention. It is true that the

correspondence raises a question of a wrongful dismissal claim and an action for personal injuries. But, as will be seen, no claim for

wrongful dismissal was actually pleaded.

32. In my view, the test for the jurisdictional question is as to the subjective intention analysed objectively at the time ofthe bringing

of the proceedings. The balance of the evidence favours the plaintiff. Additionally, there is the content of the plenary summons itself.

It is replete with pleas for equitable relief by way of injunction. There is too, what is now, infelicitously, termed the fluid "factual

matrix". At the time the writ was issued the facts were still evolving. The cause of action was not yet entirely crystallised as being

one confined to damages.

33. Taken together, I consider that the evidence establishes, as a matter of probability, the intention of the plaintiff. At that time, it

was to pursue remedies by way of injunction. The fact of that "intention", at the time the proceedings were brought, brings the case

outside the range of s. 3, and within the provisions of section 4.

34. I would emphasise that this finding is made on the facts of this case, and the inferences which may be drawn from the pleadings.

The decision should not, therefore, be read as having significance beyond the factual ambit of this case. There has been no actual

evidence in rebuttal which carries similar weight.

35. There is support for this conclusion also by reference to the contents of the statement of claim. This is an action where it was

intended to seek remedies, not just in negligence, but for breach of contract, misrepresentation and under a range of other headings.

These include, to quote:-

"(i) breach of fiduciary duty;

(j) ... infringement of constitutional rights;

(k) breach of statutory duty;

(1) such interim or interlocutory relief as to this Honourable Court shall seem meet;

(m) damages for the wilful infliction of mental distress and emotional upset, harassment and bullying."

It is not, therefore, a simple action for personal injuries for "negligence" against an employer (see again s. 3 of the Act).

36. Finally, it is important to recollect in this context the manner in which the law has recently evolved. Claims for what are termed

"harassment and bullying" are not now confined to negligence claims. They may arise in contract (see Berber v. Dunnes Stores [2009]

IESC 10, (Unreported, Supreme Court, 1ih February, 2009); Pickering v. Microsoft Ireland Operations Ltd. [2006] 17 ELR 65). A breach

of contract action lies without the s. 3 range.

37. It is true that for the purposes of this decision the key phrase ins. 4 is "intended to be pursued". This is, of course, somewhat

broader in meaning than any other term which might have been used by the drafter, such as an action "initiated for the purpose of

recovering damages". One could well envisage circumstances where, on other facts, a court might lay greater emphasis on the word

"pursued", or conclude that the "intention" was not bonafide. But, on the evidence this is not such a case. Consequently, (subject to

what follows) I consider that this court has jurisdiction to entertain and deal with the claim. This part of the relief claimed by the

defendant will therefore be dismissed.

Is the plaintiff debarred from proceedings in the High Court and the

Employment Appeals Tribunal?

38. I tum then to the next jurisdictional issue, that is whether the plaintiff is debarred from pursuing her remedies in the Employment

Appeals Tribunal and in the High Court.

39. Here it is again necessary to look first at the statutory framework.

40. Section 7 of the Unfair Dismissals Act 1977 provides for certain areas of redress for unfair dismissal before the Employment

Appeals Tribunal. Such redress may take the form of reinstatement, re-engagement or (as provided in the parent Act of 1977):-

"...(c) payment by the employer to the employee of such compensation (not exceeding an amount 104 weeks

remuneration in respect of the employment from which he was dismissed calculated in accordance with the regulations

under section 17 of the Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and

equitable having regard to all the circumstances."

41. Subsection(2) of the same section identifies matters to which the Tribunal shall have regard in determining the amount of financial

compensation. These include the extent to which the financial loss was attributable to some act, omission or conduct by the

employer or employee; to mitigation of loss, or to failure of compliance with codes of practice.

Subsection (3) identifies "financial loss" as including:

"... any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or

diminution attributable to the dismissal, or the rights of the employee."

The focus is on financial loss therefore - specifically - not general damages for pain and suffering.

While this provision was amended by s. 6 of the Unfair Dismissals (Amendment) Act 1993 the parameters for an award by the tribunal

remained strictly within the realm of financial loss and still do not encompass any scope for a claim under any heading in the law of

torts, nor for the awarding of punitive or exemplary damages.

42. The provisions of s. 15 of the original Act of 1977 are also material. This provides, insofar as relevant:-

"... 15(1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common

law for wrongful dismissal.

(2) Where an employee gives a notice in writing under section 8 (2) of this Act in respect of a dismissal to a rights

commissioner or the Tribunal, he shall not be entitled to recover damages at common law for wrongful dismissal in respect

of that dismissal.

(3) Where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the

employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate...."

43. This provision was amended by s. 10 of the Unfair Dismissals (Amendment) Act 1993 so that subsection 2 and 3 now read:-

"(2) Where a recommendation has been made by a rights commissioner in respect of a claim by an employee for redress

under this Act or the hearing of a claim by the Tribunal has commenced, the employee shall not be entitled to recover

damages at common law for wrongful dismissal in respect of the dismissal concerned.

(3) Where the hearing by a court of proceedings for damages at common law for wrongful dismissal of an employee has

commenced, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the

proceedings relate."

From these statutory citations a number of points emerge clearly:-

(1) the compensation which may be awarded by the Employment Appeals Tribunal is confined to financial loss as defined.

(2) a claimant is not entitled to pursue either statutory or common law remedies in the circumstance where, either the

jurisdiction of the tribunal or the court has been triggered by first, either an appearance before a rights commissioner, or

the hearing of a claim by the tribunal, or second, where a claim in court for damages for wrongful dismissal has

commenced.

44. However, here the situation is more nuanced. As can be seen from the chronology of events set out earlier, the plenary summons

was served before the employment contract was discharged. I expressly refrain from making any finding as to the question by whom

it was discharged, or when.

45. To repeat, no application for interlocutory relief was ever brought on between 8th December, 2008, and 25th March, 2009 when

the statement of claim was delivered. In light of the plaintiffs solicitor's letter of 23rd March, 2009, it must be highly questionable

whether a court would have granted interlocutory relief by then. Even the plaintiff accepted that there had been a breakdown of

trust. Thus, by that time it would have been impossible for her to compel her remaining in employment with the defendant by way of

restraining order.

46. On the 10th April the plaintiff signed what is known as a T1-A Form and lodged a claim with the Employment Appeals Tribunal.

This was received on the 1st May, 2009. In that document the plaintiff sought compensation under the Minimum Notice and Terms of

Employment Acts 1973-2004 and the Unfair Dismissal Acts 1977-2001.

47. In an addendum to the Tl-A Form, the plaintiff set out very much the same • material as in the section of the statement of claim

headed "Particulars of Harassment and Intimidation and Stress Inducing Events". By inference, both would appear to be drawn from a

set of written instructions from the plaintiff. In the T1-A Form, the plaintiff referred to the fact that she had initiated High Court

proceedings, although the date given is erroneous. Importantly, however, the statement of claim omits claim for damages for wrongful

dismissal. Thus the instant case is distinguishable from other decided authority wherein there was a clear overlap in the remedies

sought by a claimant in the High Court and that before the tribunal. (See, for example, The State (at the prosecution of Dublin

Corporation) v. The Employment Appeals Tribunal and Lawrence Mooney (Unreported, High Court, Gannon J., 20th October, 1986)

and on different facts, The State (James Ferris) v. Employment Appeals Tribunal and Royal Liver Friendly Society (Unreported,

Supreme Court, 10th December, 1984). No wrongful dismissal claim is made here.

48. Counsel for the defendant, however, relies strongly on the decision of the Supreme Court in Parsons v. Iarnród Eireann [1997] 2

I.R. 523. The facts of Parsons bear some consideration. Arising from a labour dispute, the plaintiff appeared before a disciplinary

committee of that defendant company. He was dismissed from his employment. He informed the defendant he intended to pursue a

claim through the rights commissioner's office under the Unfair Dismissals Act 1977. The matter was heard before a rights

commissioner, who recommended the plaintiff should proceed to the next stage of the defendant's internal disciplinary proceedings.

This took place and the plaintiffs dismissal was confirmed. Subsequently, the plaintiff issued proceedings seeking a declaration that

the decision to dismiss him from his employment was null and void, and an injunction compelling the defendant to reinstate him and

damages for breach of contract and wrongful and/or unfair dismissal. As can be seen then, in Parsons, the plaintiff had invoked the

rights commissioner procedure. Subsequently, as well as claiming injunctions, he also sought damages for what was termed in the

statement of claim "wrongful and/or unfair dismissal". The claim was doomed to failure in the courts on two separate grounds: first the

invocation of the rights commissioner procedure; second the claim for wrongful dismissal.

49. In the course of his judgment, speaking for the Supreme Court, Barrington J. set out the statutory boundaries in this way:-

"... Section 15 of the Unfair Dismissals Act, 1977, provides that the worker must chose between suing for damages

at common law and claiming relief under the new act. Sub-section 2 accordingly provides that if he claims relief

under the Act of 1977, he is not entitled to recover damages at common law; while subs. 3 provides that where

proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee the

employee shall not be entitled to redress under the Unfair Dismissals Act, 1977, in respect of the same dismissal ...."

(p. 529)

He added later in the judgment, at p. 530:-

"If the plaintiff loses his right to sue for damages at common law the heart is gone out of his claim and there is no

other freestanding relief which he can claim at law or in equity ...."

The issue in this case is whether Parsons is a binding authority or whether, on the facts, it should be distinguished.

50. Here there is no plea of wrongful dismissal. The plaintiff has not invoked the barring mechanism of rights commissioner

proceedings. A further issue then arises as to whether, in any case the facts and circumstances of the Tribunal claim and that in the

High Court are separate and severable. There is helpful authority on this issue.

51. In Quigley v. Complex Tooling and Moulding Ltd. [2009] 1 I.R. 349, Lavan J. found that, where an employee had also acquired a

common law cause of action against an employer prior to his dismissal, his cause of action in tort might nonetheless proceed in the

High Court as well as a Tribunal claim. Where the facts of that High Court claim were independent of the subsequent dismissal

therefore, a claim might be pursued in the Tribunal. In so finding, that Judge specifically approved the House of Lords decision of

Eastwood v. Magnox Electric plc. [2004] 3 W.L.R. 322, and did not follow earlier dicta of that same court in Johnson v. Unisys Ltd.

[2003] I A.C 518. The background case law to the Eastwood decision is of some importance. I will deal with this briefly.

52. In Mahmud v. Bank of Credit and Commerce International SA (in liq.) [1997] 3 All E.R. 1, the House of Lords had considered the

application of the implied term of trust and confidence in employment contracts. There, the plaintiff claimed damages at common law

for breach of this term. The House of Lords held that the claim was well founded as a matter of law. It held that damages for the

trust and confidence implied term should be assessed in accordance with ordinary contractual principles.

53. What were described as "the ramifications" of this decision then came under scrutiny in Johnson v. Unisys Ltd. [2003] 1 A.C. 518.

In Johnson, the plaintiff sought to extend the Mahmud principles further, seeking to rely on the breach of trust and confidence implied

term, not as a basis for a statutory claim for unfair dismissal, nor for a claim for damages unrelated to dismissal, but as a foundation

for a claim at common law for unfair dismissal. In its decision, the House of Lords concluded that Mr. Johnson's claim was founded on

the fact that he had been dismissed and that the trust and confidence implied term could not be applied to dismissal itself. Further, it

concluded that the grounds on which it would be wrong to impose an implied contractual duty regarding the exercise of the power of

dismissal would make it equally wrong to achieve the same result by imposing a duty of care. Thus the matters which Mr. Johnson

complained of in his court proceedings were held to be only within the statutory jurisdiction of an employment tribunal.

54. The vexed issue came to be considered again by the House of Lords in Eastwood. In the course of his speech Lord Nicholls made

the following helpful observations at p. 331 of the report:-

"... [27] Identifying the boundary of the 'Johnson exclusion area', as it has been called, is comparatively

straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed

unfairly. An employee's remedy for unfair dismissal, whether actual or constructive, is the remedy provided by

statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law,

for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and

the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the

dismissal.

He continued:-

"[28] In the ordinary course, suspension apart, an employer's failure to act fairly in the steps leading to dismissal

does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by

reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area."

But he added:-

"[29] Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employer's failure to act

fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance

is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other

illness caused by his pre​ dismissal unfair treatment. In such cases the employee has a common law cause of

action which precedes, and is independent of his subsequent dismissal. In respect of his subsequent dismissal he

may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a

tribunal he cannot recover any overlapping heads of loss twice over." [Emphasis added]

55. There is one further helpful passage from the same speech. Having commented on the possibility that it may be necessary for a

tribunal and a court to traverse the same evidential ground in deciding the factual issues, Lord Nicholls went on to say:-

"...[31] Second, the existence of this boundary line means that in some cases a continuing course of conduct,

typically a disciplinary process followed by dismissal, may have to be chopped artificially into separate pieces. In

cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches

of the trust and confidence term and loss flowing from the employee's acceptance of these breaches as a

repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive

dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area. In

some cases this legalistic distinction may give rise to difficult questions of causation in cases such as those now

before the House, where financial loss is claimed as the consequence of psychiatric illness said to have been

brought on by the employer's conduct before the employee was dismissed. Judges and tribunals, faced perhaps with

conflicting medical evidence, may have to decide whether the fact of dismissal was really the last straw which

proved too much for the employee, or whether the onset of the illness occurred even before he was dismissed."

56. The decision in Johnson had been much criticised. This criticism is set out in remarkable detail in Lord Steyn's speech in Eastwood.

(He had dissented in Johnson). The iteration of the judicial and academic criticisms of Johnson, so fully outlined in Eastwood, must be

seen as an unusually vivid illustration of judicial schadenfreude.

57. It is undoubtedly true that the terms of the United Kingdom legislation differs somewhat from the Unfair Dismissals Acts. However,

I am satisfied that the observations in Quigley by Lavan J. are illustrative of a distinction the lines of which were fully set out in the

Eastwood, and which apply in our law. Provided a demarcation line can be similarly drawn, the effect of Quigley should be followed by

this court. I say this subject to two caveats. First, clearly, there can be no question of double recovery; second; it may be

necessary for a court to intervene by way of case management in order to identify precisely the case to be made before the Tribunal

and that which may ultimately come before this Court. I mention in passing that Quigley was successfully appealed: however that

appeal did not concern the point at issue

here.

58. In the present case, the plaintiffs claim is that she was subjected to intimidation and harassment during the course of her

employment. This allegedly occurred mainly during her certified sick leave. She contends this amounted to breach of contract and

negligence which had psychological consequences. Further, she states that she suffered financial loss by way of loss of earnings by

reason of the fact that she had been suspended from the 17th October, 2008 without pay. The plaintiffs case is that this cause of

action is entirely separate and distinct from the Employment Appeals Tribunal claim concerning the financial loss resulting from the

dismissal.

59. The plaintiff says that the matters pleaded refer to conduct during the continuation of her employment and in no way refer to the

manner of her dismissal; that the facts and circumstances pre-date her date of dismissal by over eighteen months at the earliest

stage, and six months at the latest date. She says that the employment appeal proceedings refer to the actual dismissal, how it

came about, and whether the employer's actions were reasonable or not in the context of her resignation. I accept the proposition

that this plaintiff, on these facts, may proceed before the Employment Appeals Tribunal, and, on separate aspects of the facts in the

High Court.

60. I find support for the proposition that the plaintiff may (if the case is made out on evidence) recover damages for mental distress,

for breach of implied terms of trust and confidence in a breach of contract proceedings (see Pickering v. Microsoft Ireland Operators

Ltd. [2006] 17 ELR 65; Berber v. Dunnes Stores [2009] IESC 10) (Unreported, Supreme Court,Ii11 February, 2009). This aspect of the

notice of motion must fail.

How the case will be managed

61. But the defendant company is entitled to know precisely what case it has to face and where. It will be necessary for this court to

case manage the balance of the pleadings in these proceedings and to have sight of the documentation to be submitted to the

Employment Appeals Tribunal. The High Court damages claim will be stayed until the final determination in the Employment Appeals

Tribunal. That Tribunal claim will deal (and deal only), with the issue of financial loss caused by the plaintiffs dismissal (if so found). It

will be necessary then for the statement of claim in these proceedings to be re-drafted so as specifically to identify issues ultimately

to be placed before this court and "sanitised" so as to preclude the possibility of any overlap of claims. The plaintiff is not entitled to

pursue a wrongful dismissal claim in the High Court in any guise.

Are the pleadings in accordance with the Rules of Court?

62. I move then to consider a third general issue viz - whether the statement of claim accords with the Rules of the Superior Courts

("RSC").

63. The effect of Order 19, rules 1 and 3, and Order 20 of the RSC is that a statement of claim should contain a statement of the

facts relied on by the plaintiff as a relief which is claimed. The cause of action relied on must be clearly identified. Order 19, rule 3

lays down the fundamental principle that pleadings shall "contain, and contain only, a statement in a summary form of the material

facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be

proved ...".

64. Material facts are those which constitute the cause of action; that is those which identify the case which must be proved by the

plaintiff in order to succeed in the claim. Pleadings must not contain an unnecessary or extraneous matter. In general, therefore, a

statement of claim should not include the evidence by which the material facts constituting the cause of action are to be proved. As

in the case of all demarcation lines, the distinction is not always easy to draw. The observations which here follow should not be

taken as being in any way critical of those who drafted the pleadings, in that, frequently, a plaintiff will be criticised for providing too

little information rather than too much. In simple terms the litmus test is established by asking two simple questions. First, what is the

plaintiffs case? This should be pleaded in the statement of claim. Second, how will the case be proved? That should not be pleaded in

the statement of claim itself, but may well be provided in particulars. Under the rules, pleadings which unnecessarily set out evidence

by which the material facts are to be proved may be struck out.

65. It is true that in certain forms of case the rules provide exceptionally that particulars of certain matters may be pleaded. This is

for the purpose of further defining the issues between the parties and to prevent either party being taken by surprise. Personal injury

claims are now one example of this exception. However, the exercise of such exceptions does not derogate from the general principle

of pleading. A statement of claim should not be an "affidavit" in its format or content.

66. Order 19, rule 27 RSC deals with the question of what are termed 'unnecessary' or 'scandalous' pleadings. It provides that a court

may at any stage strike out or amend any matter in an indorsement of claim which is deemed to be "unnecessary or scandalous" or

which may tend to "prejudice, embarrass or delay the fair trial of the action". In general, pleadings which come under these

descriptions will contain either irrelevant material, or allegations about parties in the case which have nothing to do with the dispute

(see generally Consolidated Superior Court Rules, P.J. Breen, Ed. (Round Hall Sweet and Maxwell) and Delaney and McGrath, Civil

Procedure in the Superior Courts (Round Hall, Dublin 2010, Chapter 5).

67. Having identified the relevant general principles, it is necessary to consider whether the statement of claim in its present form

accords with Orders 19 and 20.

68. The defendant's first complaint is that not all the terms of the contract between the plaintiff and the defendant have been

pleaded. Specifically, in the section headed "Particulars of Harassment and Intimidation and Stress Inducing events", there is

reference to alleged oral or written variations to the original employment contract. These are said to have been subsequently

negotiated between the plaintiff and the owners of the defendant company. Reference is made to alleged assurances to the plaintiff

by the owners of the company regarding the terms of Mr. Ryan's appointment of Chief Executive. It is said, broadly, that it was

agreed that any position made available to Mr. Ryan would not rank above the plaintiff, and that no such appointment would be made

without the plaintiffs consent. Further than that however, the statement of claim itself does not go. The consequence of this is that

the full nature of the alleged representations by the owners is not pleaded, thus the full ambit of the express or implied terms of the

contract or other alleged representations said to have existed at the date of alleged breach or discharge of the contract have not

been identified. Having considered the contents of the statement of claim I find myself in agreement of the defendant's submission on

this point. The full terms of any alleged variation or representation should be set out. This is a "first question" issue, what precisely is

the plaintiffs case? More specifically, what were the terms of the contract? The statement of claim should be amended to address

this question fully.

69. A second issue arises in relation to the same section of particulars. In short, the section containing the aforementioned particulars

stretch over some twenty-seven unnumbered paragraphs, that section of the statement of claim contains a great deal of narrative of

events identifying persons at meetings, contents of emails, what was said and the plaintiffs reaction to these things. This section of

the statement of claim goes over five folio pages.

70. I must conclude that such narrative transgresses the boundary line into evidence, the impugned portion of the statement of claim

seeks to identify how the claim will be proved. Thus it goes to the "second question", and identified earlier is impermissible.

71. While I have no doubt that the same material will, as a matter of high probability, be set out in a reply to particulars I do not think

that it appropriately lies within the framework of a statement of claim. It would inevitably beget a defence suffering from similar

frailties. It is, to that extent, "embarrassing", in that it renders the task of pleading excessively onerous and would militate against

identifying the true issues in the case. I will direct that the statement of claim will be amended by deletion of this section in its

present form.

Are the proceedings vexatious or an abuse of process?

72. It follows from the findings in this decision that I do not consider the proceedings to be inherently frivolous or vexatious, or are

such as must inherently fail because of procedural or statutory infirmity. For the same reasons, it follows that the claim does not

come within the description of on abuse of process (see generally Lac v. Chevron [1995] 1 ILRM 161; Riordan v. Ireland (No.5) [2001]

4 I.R. 263).

Decision

73. The court will stay these proceedings until the outcome of the Employment Appeals Tribunal claim which will deal with the

question of financial loss (if any) arising from the plaintiff's dismissal, (if this is established). For the purposes of any High Court claim,

the statement of claim must be amended as directed; and specifically to plead the outcome of the Tribunal hearing, to set out such

award and specifically to ensure there is no question of pursuing overlapping heads of loss.