Supreme Court allows appeal for industrial action strikers to recover salary via estoppel against employer.

THE SUPREME COURT

[Appeal No: 132/2008]

Clarke J.

MacMenamin J.

Dunne J.

Between/

MARIE FULLER, ANNE MARIE COLLINS, NUALA O’MAHONY, CARMEL KELLEHER, BRENDAR FARR, MARGARET COLLINS, GRETTA

COLEMAN, GERALDINE HURLEY, KAREN MURPHY, MAIREAD O’CONNELL, GRETE HEGARTY, BRIAN O’REGAN, HUGH O’REILLY,

DEIRDRE COOMEY, BERNIE BURKE, MARTIN BRENNAN, MARGARET CAHILL, SHARON CANNON O’REILLY, NOIRIN CARR, TERESA

COMMONS, TERESA COSGROVE, JAMES CUNNINGHAM, MICHAEL CORCORAN, MARIE CRESHAM, MAUREEN DEANE, CHARLOTTE

DEVINE, CATRIONA DOYLE, GERALDINE FARRAGHER, ANGELA DEMPSEY, GERALDINE FORKAN, KEVIN FEENEY, BRIDGET A.

GALLAGHER, FRANCES GALLAGHER, MARTINA GALLAGHER, BRID GAYNARD, KITTY GREENE, NOREEN GROARKE, MICHAEL

HALLINAN, BREDA HEGARTY, MARY HENEGHAN, MARGARET HENRY, MAURA HENEGHAN, TERESA HYLAND, UNA HENRY,

GERALDINE HUGHES, SHEILA JOYCE, MARGARET KEANE, MARGARET KEARNEY, PATRICK KILCOYNE, LYNDA LYONS, MARIA

LARKIN, VALERIE LAVELLE, ANN LYNOTT, CARMEL GOLDEN, JOHN LOFTUS, MARY MOORE, KATHLEEN MADDEN, ALICE VESEY-

McCARTHY, SIOBHAN McDONNELL-GILL, MARY P. McDONNELL, KARA McNULTY, KATHLEEN MINOGUE, PATRICIA MORAN,

HELEN MURPHY, NUALA MURPHY, JOSEPHINE NAUGHTON KEANE, BRID Ni CHINNÉIDE, ÁINE Ui LOIDEAN (ÁINE Ni

EANACHÁIN), BERNADETTE O’MALLEY, CATHERINE O’MALLEY, JAMES O’MALLEY, JOSEPH O’REILLY, PATRICIA O’MALLEY,

HONORAH RONAYNE, CATHERINE B. SWEENEY, IRENE RYDER, ANNE VAHEY WALSH, MARY WALSH, MAUREEN WALSH, MAURA

WALSHE, JAMES WOODLOCK, LORRAINE BOYLE, PATRICIA FITZPATRICK, HILDA FLANAGAN, CARMEL HALL, MARY HERATY,

MARTINA JORDAN, CHRISTINA KEARNS, MARTINA KELLY, LORETTO MARLEY, MARY C. McDONNELL, ELEANOR McHUGH, ANNE

RUANE, BRIDIE SHALLY, BERNADETTE WALSH, MAIREAD WHELAN, MARY WHITE, KAY DOLLY, SUZANNE BRODY, BREDA

QUIRKE, NIAMH SPILLANE, MARY McAULIFFE, TERESA CLEARY, PATRICIA CREGAN, CARMEL GALVIN, MARY O’CONNOR,

ANNETTE COLLINS, DOLORES QUINN, NORA T. O’BRIEN, CLAIRE RYAN, DENISE McINERNEY, ELEANOR BIRMINGHAM,

GERALDINE O’BRIEN, ANNE MARIE SHEEHAN, DOLORES O’SULLIVAN, ADELE WRIGHT, BRENDA MOLONEY, SIOBHAN CRAIG,

MARY BREEN, PATRICK POWER, JUNE DANAGHER, MARTINA TOBIN, BREDA MURPHY, CLAIRE CONSIDINE, OLIVE O’CONNOR,

MARGARET MULVIHILL, BREID GUINANE, DOLORES BURKE, EILEEN CARROLL, EILEEN CASEY, MARIE DALTON, MARY DILLANE,

SIOBHANE DINEEN, VERONICA DONEGAN, PHILIP EGAN, ELIZABETH M. EGAN, MARGARET GRIFF-FITZGERALD, MARGARET

FITZGERALD, ANNE FOLEY, BREID GRIFFIN, DAVID GRIFFIN, NORA HALLISSEY, EILEEN HANLEY, MARIAN HERLIHY, MARIAN

HUSSEY, ANNE KAVANAGH, KATHLEEN T. KAVANAGH-McELLIGOTT, CATHERINE T. KELLIHER, EILEEN KENNEDY, CARMEL KING,

KATE KISSANE, ANN LEEN, NORA McCARTHY, SIMON McCARTHY, EILEEN McQUINN, DEIRDRE MOORE, MARY MURPHY, SINEAD

NOLAN, SHEILA O’CONNELL, NOREEN O’CONNOR, MARY ENRIGHT O’CONNOR, SHEILA O’DONOGHUE, DEBORAH A. O’CONNOR

SCANNELL, MARY O’MAHONY, MARIAN O’REILLY, ANN O’SULLIVAN-DOWNEY, MARY O’SULLIVAN, MARION ROSS, ANNE REEN,

SHEILA REYNOLDS, CARMEL SHEEHY, MARION WALSHE, SUSAN CONROY, ANNE EGAN (FORDE), ANNE CONNOLLY, ELIZABETH

HAYES, THERESA HURLEY, MARY EVANS, PATRICIA LAWTON, SILE COLLINS O’NEILL, ANNE WHELAN, PATRICIA BURKE,

GERALDINE MURPHY, DOLORES DOYLE, CATHERINA FARRELL, MARYSE JENNINGS, RAY BURKE, EAMON DOYLE, MARY SMITH,

IMELDA KEANE, BREEDA McDONAGH, VALERIE FALLON, BERNIE HICKEY, CARMEL DONOGHUE, CIARA GLYNN, ANNE MILLER,

ROSALEEN CONNELLY, PHILO MADDEN, PAT CONNELLY, ANN FAHERTY, CATHERINE RUANE, BRIDIE THORNTON, MARY

MAUGHAN, CARMEL FEENEY, MARGARET FOY, MAUREEN MOONEY, TERESA HANNON, GERALDINE FLANAGAN, BRID

DONNELLAN, PATRICIA DUFF, ANNE FEENEY, CATHERINE LOFTUS, HELEN LUNDY, MARIA BARRETT, CIARA FAHY, SEAN

MURPHY, MAURA CURRAN, JANETTE TREACY, SHARON KEELY, CATHERINE FINNEGAN, PAULINE COLLINS, KAREN DONOGHUE,

OLIVE RIDDELL, BREEGE BURKE, VIOLET CALLAGHAN, MARTIN BIGGINS, ANNE HESSION, CATHERINE RYAN, MARGARET

RAFTERY, PATRICIA GILLIGAN, DEIRBHLE CAREY, GERALDINE CONROY, MARY B. KEADY, MARY TREACY, ANNE COSTELLO,

CLAIRE CLEARY, ETHNA MAHONY, DOLORES MURPHY, RITA HURLEY, GERALDINE CAHIR, ROSARIO MELLET, GERALDINE

McHUGH, SABRINA BYRNE, VALERIE FULLARD, DEIRDRE McGUIGAN, MAURA McNICHOLAS, MARY HENNESSY, UNA

CAFFERKEY, SINEAD GORMAN, NOREEN O’DRISCOLL, ANN McNAMARA, NORA BUTLER, MARY KEANE, CATHERINE GORMALLY,

CLAIRE O REILLY, JULIE COLLINS, MARY SOMERVILLE, PATRICIA SHEEHAN, BERNADETTE DUNNE

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR AGRICULTURE, FOOD AND FORESTRY

AND

THE MINISTER FOR FINANCE

RESPONDENTS/RESPONDENTS

JUDGMENT of Mr. Justice Clarke delivered the 27th November, 2013

1. Introduction

1.1. Industrial relations disputes have their own dynamic often operating outside of legally binding arrangements. However, sometimes

aspects of those disputes involve complex legal questions. The industrial relations dispute out of which these proceedings arose came

to a head in 2003. The dispute was the subject of previous proceedings involving some, but not all, of those who bring these

proceedings. Those proceedings (“Fuller (No. 1)”) commenced in 2003 and were the subject of a judgment of Carroll J. in the High

Court, Fuller & Ors v The Minister for Agriculture and Food and The Minister for Finance [2003] IEHC 27, and of this Court, Fuller &

Ors v The Minister for Agriculture and Food and The Minister for Finance [2005] 1 I.R. 529. While it will be necessary to analyse

aspects of the course of those proceedings in some greater detail, at its simplest, the case made in those proceedings was that the

purported removal from the payroll of the Department of Agriculture of a number of the applicants was unlawful. The applicants

succeeded in those proceedings, both in the High Court and on appeal in this Court.

1.2. After judgment had been given on the appeal, the applicants’ trade union (“the CPSU”) wrote to the Department asserting an

entitlement, deriving from the decision of the courts in Fuller (No. 1), to be entitled to pay and pension qualification in relation to a

period when, to use a neutral term, they were out of work as a result of the relevant industrial dispute. The claim made also related

to other officials who, while they were not applicants in Fuller (No. 1), were involved in the same industrial dispute.

1.3. The judgments of Carroll J. in the High Court and McGuinness J., speaking for this Court, in Fuller (No. 1) give a comprehensive

account of the relevant facts and it is, therefore, unnecessary to go into those facts in great detail at this stage. For present

purposes, it is sufficient to note that, in taking certain members of CPSU off the payroll, the respondents (“the Ministers”) had acted

in purported reliance on s. 16 of the Civil Service Regulation Act 1956. The backdrop to that stance was the fact that members of the

CPSU took a form of limited rolling industrial action in furtherance of a trade dispute concerning terms and conditions. The action

involved a refusal to carry out certain types of work at certain times. Warnings, both oral and written, were given that those involved

would be taken off the payroll under s. 16 unless full work was resumed. The officials concerned declined to terminate their limited

industrial action and they were removed from the payroll. This happened on two different dates for two different groups of officials.

Immediately thereafter, an all-out strike was called and, separately, the legal proceedings which became Fuller (No. 1) were

commenced. The time at which officials went on all-out strike also differed by reference to the different times when relevant officials

were removed from the payroll.

1.4. In simple terms, the decision of both Carroll J. and of this Court in Fuller (No. 1) was that the Ministers had acted unlawfully in

purporting to place reliance on s. 16 in order to remove the officials concerned from the payroll. In substance, it was held that s. 16

was concerned with disciplinary matters and could not be utilised in relation to persons who were refusing to do certain aspects of

their work as part of a general industrial relations type dispute.

1.5. In any event, as a result of the decisions in Fuller (No. 1), it was asserted that the relevant officials were entitled to be paid

(and to be credited for pension purposes) for the period which elapsed between the officials concerned being taken off the payroll

and their return to full work as a result of a settlement of the underlying industrial relations dispute. While there was no initial

substantive response to the correspondence addressed to the Ministers on behalf of the relevant officials by CPSU, at the hearing in

the High Court in these proceedings, the Ministers asserted that the relevant officials were not entitled to be paid because they had,

it was said, gone on all-out strike immediately after they were removed from the payroll. On that basis, it was asserted that the law

does not require striking workers to be paid.

1.6. As a result of the refusal of the Ministers to make the payments concerned and to agree that pension qualification and

calculation would be conducted on the basis of the workers concerned having a credit for the relevant period, these proceedings

were commenced and ultimately came on for hearing before Gilligan J. in the High Court. The applicants in these proceedings included

those who were the applicants in Fuller (No. 1) but also included many others involved in the dispute. It will be necessary, for

completeness, to deal briefly with the precise position of each group of applicants in due course. However, for present purposes, it is

sufficient to note that the claims made in these proceedings failed in the High Court, and it is against that decision that this appeal is

brought.

1.7. A range of issues came to be determined by Gilligan J. The one which most logically arises first for consideration derives from a

contention put forward on behalf of the relevant workers that the Ministers are now estopped or otherwise prevented from putting

forward an argument of the type just addressed by virtue of the manner in which the Ministers defended the earlier proceedings. In

addition, there are both factual and legal disputes between the parties as to the circumstances, if any, when workers may be entitled

to be paid in circumstances such as arise in these proceedings. However, clearly, those potentially difficult issues do not arise in the

event that the Ministers are prevented from raising the relevant substantive arguments in the first place. In those circumstances it is

appropriate to turn, first, to consideration of that issue.

2. The Estoppel Issue

2.1. The underlying factual basis put forward for the proposition that the Ministers cannot now rely on the strike to justify non-

payment stems from the way in which Fuller (No. 1) was pleaded. Amongst the reliefs claimed on behalf of the applicants in Fuller

(No. 1) was, at the relief sought at (d)(II) of the statement of grounds, “An Order of Mandamus directing the Respondents to restore

the Applicants to the payroll as and from 28 April 2003”. In that context it should be noted that the 28th April, 2003 was the date on

which those officials who were applicants in Fuller (No. 1) had been removed from the payroll.

2.2. In their statement of opposition the Ministers specified, at paragraph 7, that it was admitted “That the Applicants have been and

continue to be deprived of their remuneration however it is pleaded that in so depriving the Applicants the Respondents have acted

lawfully and in accordance with the powers conferred upon them by section 16 of the Civil Services Regulation Act 1956.”

2.3. In the context of that sequence of pleading, the undisputed factual backdrop is of some relevance. The applicants in Fuller (No.

1) were involved in part of the rolling industrial action to which reference has been made. They were served with notices to the

effect that, unless they returned to full work, they would be removed from the payroll with effect from the 28th April. As was

emphasised by counsel for the Ministers before this Court, there was already experience on both sides as to how matters were likely

to develop, for a larger number of co-officials had already been removed from the payroll earlier in April in identical circumstances. It

was pointed out that the relevant communications on behalf of the Ministers on both occasions made clear that the removal from the

payroll was to last only as long as any relevant officials were actively engaged in the rolling industrial action in the sense of not

actually fully working on any particular day or days. It was in the nature of that rolling action that different officials declined to do

certain duties for a number of specified days and then returned to full working. Thus, it is said on behalf of the Ministers that it was

clear at all times that the only removal from the payroll which would occur would be in respect of those days on which any relevant

official declined to carry out their full duties, so that the official concerned would be restored to pay in respect of any day or days on

which they did, in fact, work fully.

2.4. In simple terms, the Ministers’ case is, therefore, that any relevant official would have been fully paid in respect of any days on

which they returned to full work. On that basis it is said that the only reason why the officials concerned were not paid for the period

in dispute was because they were on full strike. However one characterises matters, it is clear that all of the officials who were

applicants in Fuller (No. 1) were on full strike before leave was obtained to seek judicial review and well before the statement of

opposition on behalf of the Ministers was filed. For completeness, one minor twist in the facts should be noted. As pointed out, the

sequence of events was that, on different dates, groups of officials were removed from the payroll in purported reliance on s. 16 as a

result of their failure to do full work. Within a day an all-out strike was called. No pay was, at the relevant time, given to any official

in respect of a time after they were removed from the payroll on the basis of the Ministers’ contention that they were not entitled to

such pay. However, in the course of the proceedings before the High Court, it was accepted on behalf of the Ministers (as it would

have to have been in order to maintain a position consistent with the case being made by the Ministers) that any official who,

subsequent to being removed from the payroll, did attend for work even on the basis of doing limited duties, was entitled to be paid.

That concession stemmed from the acceptance by the Ministers that, at a minimum, the judgments in Fuller (No. 1) rendered non-

payment of officials in respect of periods when they were attending for some work unlawful.

2.5. It is in the context of those facts that the estoppel issue arises. It is argued on behalf of the officials that the only justification

put forward on behalf of the Ministers in their statement of opposition, not only for their initial deprivation of remuneration but also for

any continued deprivation of remuneration, was s. 16. On that basis, it is said that if, as is now argued to be the case, the true

reason for depriving any relevant official of remuneration after the all-out strike commenced, and thus at the time when the judicial

review proceedings were launched and, in particular, when the Ministers put in their statement of opposition, was a separate reason,

being that the workers were now on all-out strike, then same could and should have been pleaded in the statement of opposition.

2.6. On that basis, it is said that it is now too late for the Ministers to seek to make a different case to justify the failure to continue

to remunerate the relevant officials. Against that background, it is next necessary to turn to the way in which the trial judge dealt

with this aspect of the case.

3. The Judgment of the Trial Judge

3.1. Gilligan J. noted, at page 8 of his judgment, that the case was made that the Ministers were now estopped from seeking to

justify the “decision to remove those applicants from the payroll on the basis of a justification other than s. 16”. The trial judge then

went on to consider the relevant authorities to which he had been referred, being Thoday v. Thoday [1964] 1 All E.R. 341 at p. 352,

Carl-Zeiss-Stiftung v. Rayner and Keeler Limited and Ors (No.2) [1966] 2 All E.R. 536 at p. 565 and, in particular, the judgment of

Hardiman J. in this Court in A.A. v. Medical Council [2003] 4 I.R. 302 and the consideration therein of the rule in Henderson v.

Henderson [1843] 3 Hare 100 and the discretionary approach to its application noted by Lord Bingham in Johnson v. Gore Wood & Co.

[2002] 2 A.C. 1.

3.2. Thereafter, at page 11 of his judgment, Gilligan J. went on to say the following:-

“I see no reason why the issue as to the payment of the applicants’ wages and clarification as regards the position

pertaining to their pension entitlements could not have been raised in the earlier judicial review proceedings. Counsel for

the respondent does not raise any issue in these proceedings as regards the applicants’ entitlement to maintain these

issues before this Court. In all the circumstances, in the exercise of my discretion, I take the view that what is at issue

in this case is a separate and distinct point which was not at issue or argued in the previous judicial review proceedings

of Fuller No.1. I do not consider in all the circumstances that the raising of the issue by the applicants is in any way an

abuse of process. Equally, I can see no reason why the respondent should not be allowed to make out an argument that

the applicants have no right to be paid their wages or a right to their pension entitlements, notwithstanding that they

were unlawfully removed from the payroll, by reason of the fact that in the circumstances which occurred, almost

immediately after their removal from the payroll, they chose to go on strike and to make themselves unavailable for

work.”

3.3. The first argument which, therefore, arises on this appeal is as to whether Gilligan J. was correct (or at least was acting within

his discretion in a manner which should not be overturned by this Court) in reaching the conclusion that the Ministers were not

estopped from raising the issues now sought to be relied on. I now turn to an analysis of the argument.

4. Analysis

4.1. Before going on to deal with the argument made before this Court, it is important to record some developments which have

occurred in the case. As was pointed out by Gilligan J. in his judgment, a significant number of the original applicants in these

proceedings had withdrawn from involvement prior to the hearing in the High Court. I understand that the circumstances leading to

that withdrawal stemmed from the fact that those of the applicants who had withdrawn had not, in fact, been removed from the

payroll as a result of action taken against them under s. 16 (arising from an involvement in the rolling industrial action) but rather had

been co-officials who had participated in the all-out strike in support of their colleagues, who had been removed from the payroll

under s. 16. In those circumstances, the only basis for the removal of those who, as it were, went out in sympathy, was that they

were on strike and it was accepted that no claims could be brought on their behalf.

4.2. Next it is, for completeness, of relevance to note that two of the original applicants, who remained parties as at the time of the

High Court, withdrew their appeals at the time of the oral hearing in this Court. For ease of reference, I will, therefore, refer to those

of the original applicants whose case remained alive at the oral hearing as “the continuing claimants”. I now turn to the arguments

raised at the hearing on the estoppel issue.

4.3. The first point noted by counsel for the continuing claimants was that the case for estoppel made in the High Court was one

made on behalf of the applicants rather than one, made on behalf of the Ministers, which suggested that the claim, rather than the

defence, was subject to a Henderson v. Henderson type estoppel. Against that background, it is suggested that it is curious that the

trial judge made a finding that “the raising of the issue by the applicants” is not “in any way an abuse of process”. No such

suggestion had, apparently, been made by counsel for the Ministers before the High Court.

4.4. While that point may not, of itself, be of any relevance to this appeal, it is apparent that the trial judge proceeded on the basis

that the question of actual payment of the applicants in Fuller (No. 1) was not raised in that case. An analysis of the pleadings in

Fuller (No. 1) makes it clear that that is not the case. The relief in respect of which leave to seek judicial review was granted by the

High Court (Quirke J.) on the 12th May, 2003, included, as has already been noted, at item (d)(II), “An Order of Mandamus directing

the Respondents to restore the Applicants to the payroll as and from the 28 April 2003”. Thus, there was a very specific claim made

in Fuller (No. 1) seeking an order, in effect, that the relevant applicants be paid. The plea at paragraph 7 of the statement of

opposition, which has already been cited, has to be seen in that light. It follows that, at least so far as the pleadings were

concerned, the issues which were before Carroll J. in Fuller (No. 1) included (although obviously were far from confined to) a claim for

payment with a denial that the applicants were entitled to payment. In particular, that denial was expressly stated to be based on

the application of s. 16 and s. 16 alone. Furthermore, and of particular relevance to the issue which has now arisen, s. 16 was stated

to be the justification not only for the initial removal from the payroll and, thus, the initial refusal to pay the relevant applicants, but

also in respect of any continued refusal to pay. The statement of opposition was filed on the 20th May, 2003. By that stage all of the

applicants in those proceedings were on full strike. If, therefore, the basis for not paying those officials, after they had gone on full

strike, was because they were not entitled to be paid simply because they were on strike, then it is surprising that no mention of that

justification is to be found in the statement of opposition even as a fallback position.

4.5. On the basis of the case which the Ministers now seek to make, it would, for consistency, have been appropriate for the

Ministers to have pleaded, in late May, 2003, that, at least in the alternative and whatever about the effect of s. 16, the applicants

were no longer entitled to continue to be paid by virtue of their being on strike. No such plea is to be found.

4.6. What then are the consequences of the way in which the Ministers defended Fuller (No. 1)? First, it is said on behalf of the

Ministers in this appeal that Fuller (No. 1) turned out to be a very narrow case wholly concerned with the proper statutory

interpretation of s. 16. In that context, it is said that, whatever about the claim for payment being included in the relief sought in the

statement of grounds, no such claim was pressed in the sense that neither the judgment of Carroll J. in the High Court or McGuinness

J. in this Court deals with the order of mandamus. It can, I think, safely be inferred that had such an order been pressed at either

hearing, the court would have at least dealt with it in some fashion. There is, on the affidavits, a difference of recollection which it is

impossible to resolve at this remove as to what might have been said in this Court about the payment issue.

4.7. In his replying oral submissions, counsel for the continuing claimants agreed that the issue in Fuller (No. 1) was narrow but

suggested that the reason why it was so narrow was precisely because of the way in which the Ministers chose to set out their

opposition. It seems to me that counsel was correct in so characterising the situation. It remains the case that, as the case was

pleaded, the applicants in Fuller (No. 1) asserted an entitlement to be paid. The only basis put forward for resisting that claim was to

place reliance on s. 16. It was, in those circumstances, a matter for the Ministers to raise any other basis or justification for not

continuing to pay the applicants in that case. The issue was narrow precisely because the Ministers chose not to widen it. The failure

to press for an order of mandamus must, again, be seen in that context. Given that the only basis put forward by the Ministers for

suggesting that they did not have a continuing obligation to pay was s. 16, it was, in my view, not unreasonable for the applicants in

Fuller (No. 1) to consider that a victory on the s. 16 point would necessarily carry with it an entitlement to be paid. It is true that the

court was not asked to make the mandamus order. It is true that the court did not, therefore, expressly find that the applicants

were entitled to be paid. But it is also true that the only basis put forward in the pleadings for suggesting that the applicants were

not entitled to continue to be paid was rejected.

4.8. In passing, I should note that, while not all of those who are applicants in these proceedings were parties to Fuller (No. 1), no

argument was, in my view quite properly, advanced on behalf of the Ministers to suggest that any estoppel which, contrary to his

submissions, might arise could only apply in favour of those who were applicants in Fuller (No. 1). The fact is that Fuller (No. 1) arose

out of the same dispute between, in substance, the same parties and it would have been wholly inappropriate to seek to distinguish

between those who happened to be applicants in Fuller (No. 1) and those who were not.

4.9. It is also worthy of some note, although far from decisive, that the Ministers, in Fuller (No. 1), sought to rely on jurisprudence of

the English courts which suggested a “no work no pay” principle such that, independent of s. 16, the Ministers might have been

entitled to remove the applicants from the payroll because of the undoubted fact that they declined to work fully in accordance with

their contractual obligations. However, this Court made clear that it did not consider it appropriate to permit the Ministers to raise, in

Fuller No. 1, that point precisely because no basis other than s. 16 had been put forward to justify the removal of the applicants from

the payroll. It was acknowledged by counsel for the continuing claimants in this Court on this hearing that the “no work no pay” point

sought to be raised on that earlier occasion on behalf of the Ministers was a slightly different one than the one now sought to be

relied on. The point then sought to be made was that the Ministers were entitled to remove the relevant officials from the payroll

because they were engaged in reduced working as part of the limited and rolling industrial action to which reference has already been

made. Of course, what is now sought to be relied on is the same principle but as a justification for a continued removal from the

payroll subsequent to the complete refusal to work occasioned by the calling of an all-out strike. However, it seems to me that the

underlying principle is much the same. The basis which the Ministers put forward as a justification for non-payment (either by the

original removal from the payroll or in respect of any continuing non-payment) was s. 16 and s. 16 alone. No other basis was put

forward.

4.10. Insofar as it might be said that the basis for not paying the continuing claimants changed when they went out on all-out strike,

no mention of that is made in the statement of opposition. If the Court were only concerned with what was said in correspondence at

the respective times when the relevant officials were initially removed from the payroll (which was, of course, before they were on

all-out strike) then there might be merit in that point, although it would, also, be necessary to consider whether there was any

obligation on the Ministers to specify that there had been a change in the basis on which the officials concerned were not to be paid.

However, by the time the case in Fuller (No. 1) came to be pleaded the situation had already changed so that, if the Ministers’

argument be correct, the reason for not paying the applicants in Fuller (No. 1) on a continuing basis was no longer s. 16 but rather

their all-out strike. For the reasons already analysed, no mention is made of such a basis in the pleadings.

4.11. It seems to me to follow, therefore, that the reason why Fuller (No. 1) was debated on a narrow basis was because of the

position adopted by the Ministers and not the position adopted by the applicants. The applicants sought continuing payment. The

Ministers’ only basis for justifying not continuing to pay was s. 16. On that basis, and because of the position adopted by the

Ministers, the case was argued on a narrow basis and it was not unreasonable for the applicants in Fuller No. 1 not to press for an

order of mandamus when it was clear that only one justification for non-payment (including continuing non-payment) was put

forward and where their central attack was on the legality of that basis.

5. The Consequences

5.1. It is, of course, clear, not least from A.A. v. Medical Council, that the Court retains a discretion in cases such as this where it is

asserted that a party is no longer entitled to put forward a claim because of the position adopted by that party in previous connected

proceedings. It does seem to me that the underlying rationale for the rule in Henderson v. Henderson applies equally to a matter of

defence as it does to a matter of claim. The rationale is that a party should, ordinarily, bring forward its full case and must run the

risk that, if it does not do so, it will be precluded, in some subsequent similar proceedings, from making a case which it should but did

not put forward on an earlier occasion. That rationale applies with equal force to the obligation on a defendant or respondent to bring

forward its full case. It follows that the Court has a discretion to prevent a defendant from raising an issue which could and should

have been advanced in previous connected proceedings. Like all discretions, the Court must consider all relevant factors and

consider, in accordance with any applicable jurisprudence, where the justice of the case lies.

5.2. For the reasons already analysed I am satisfied that the trial judge was incorrect in his analysis of the circumstances which led

to the question of payment not being the subject of a definitive ruling by either the High Court or this Court in Fuller No. 1. It is clear

that the exercise by the trial judge of the discretion which he undoubtedly enjoyed as to whether to permit the Ministers to put

forward a different defence in these proceedings to that put forward in Fuller No. 1 was significantly coloured by the view which the

trial judge took of those circumstances. It follows that this is not one of those cases where this Court is required, in accordance with

the relevant jurisprudence, to afford very significant weight to the manner in which the trial judge exercised his discretion. I am,

therefore, satisfied that, in those circumstances, it is appropriate for this Court to take a different view as to whether the Ministers

should be allowed rely on the defence in question.

5.3. In my view, having permitted Fuller (No. 1) to proceed on a narrow basis by failing to put forward any justification for the

continuing removal of the applicants from the payroll other than s. 16, it would now be unjust to deprive the continuing claimants of

the fruits of their victory in Fuller (No. 1) by allowing the Ministers to put forward a different and, substantially inconsistent, basis of

justification for continued non-payment.

5.4. One further observation seems to me to be appropriate. It might, on a superficial view, be taken that this Court is deciding this

appeal on narrow and technical pleading grounds. It is important to emphasise that such is not the case. The modern view on

pleadings is that the Court should be anxious to ensure that the true issues between the parties are determined. To that end a court

should lean in favour of any application to amend pleadings provided that no unfairness or injustice will result. However, it remains the

case that pleadings are important for they define the parameters within which any case is to be decided. Where it is desired either by

a claimant (whether plaintiff, petitioner, applicant or the like) or by a defendant or respondent to expand the scope of a hearing

beyond that defined by the pleadings then it is of the utmost importance that an appropriate application to amend the pleadings is

made and dealt with by the court. That is as true, if not more true, in the sphere of judicial review where the legality of otherwise

valid measures is at stake. Such cases should be clear as to their scope both of claim and defence.

5.5. There have, regrettably, been far too many cases which have come before this Court in the judicial review sphere in recent years

where the case had evolved both before the High Court and on appeal before this Court but in circumstances where the parties had

not sought to amend the pleadings to reflect any such change. Such is a highly unsatisfactory situation. No such problems, of course,

arose in this case. However, those observations serve to emphasise the importance of ensuring that the scope of the issues before

the Court in judicial review proceedings are clear from the statement of grounds and statement of opposition for that scope can have

effects beyond the relevant proceedings. On the facts of this case it was clear that the issues before the court in Fuller No. 1

included the question of continuing payment with opposition to payment being grounded solely on s.16.

5.6. The other issues which were debated on this appeal raise important questions concerning the circumstances in which employers

generally or those in the public sector are, independent of statute, entitled to refuse to pay, or fully pay, persons engaged in limited

or full industrial action. Likewise the issues involve important questions from the perspective of employees as to whether they can be

obliged, on pain of not being paid at all, to work in circumstances where employers either have threatened or have actually refused to

pay or fully pay them. It seems to me that, having concluded that the Ministers were not entitled to raise those issues in these

proceedings for the reasons already analysed, it would be inappropriate to enter into a detailed consideration of those important

questions in circumstances where any conclusions reached would clearly not affect the result of the case and thus be obiter dicta.

On that basis I would propose dealing with this case solely on the basis of the estoppel or abuse of process argument raised on behalf

of the continuing claimants which, for the reasons already set out, I am satisfied permits those claimants to succeed. I now turn to

the order which I propose.

6. Conclusions

6.1. The order clearly can only apply to the continuing claimants. However, insofar as those claimants are concerned, it seems to me

that it is appropriate to allow the appeal, on the basis of the estoppel or abuse of process argument put forward, to set aside the

judgment and order of the High Court, and to grant a declaration that each continuing claimant is entitled to be paid salary as if they

had continued to work between the respective dates on which they were removed from the payroll and the date on which they

returned to work after the settlement of the underlying industrial dispute. In addition, there should be a declaration, in an appropriate

form, to guarantee that no pension rights would be lost by reference to the period when each continuing claimant was not on the

payroll.

6.2. As I am of the view that these proceedings can be disposed of on the basis of the estoppel or abuse of process argument put

forward on behalf of the continuing claimants it does not seem to me to be appropriate to deal with the other important issues raised.

6.3. For the avoidance of doubt, I would propose that the parties be asked to agree a specific form of order, specifying the

continuing claimants and identifying declarations to be made, which meet the substance of this judgment.