Jones v MBNA International Bank

A party should ordinarily advance its whole factual and legal case at trial. An appellate court will be slow to permit a new ground, or withdrawal of a concession, where the point was available below, changes the nature of the case, may have prompted further evidence, or requires factual evaluation by the trial judge.

An appellate court will not interfere with a trial judge’s factual conclusion merely because another judge might have reached a different view. It may uphold a finding that an employer lacked reasonable grounds to believe that an employee was guilty of gross misconduct where that finding was open on the evidence known to the employer at the time.

Jones v MBNA International Bank concerned the summary dismissal of a senior banking employee for alleged gross misconduct arising from a relocation-expenses claim.

At trial in the Cardiff County Court, the Recorder held that the employer lacked reasonable grounds to believe that the employee had committed gross misconduct. The dismissal was therefore wrongful, but damages were confined to the contractual two-week notice period. The Recorder rejected the separate allegation that the employer had acted in bad faith so as to breach the implied term of mutual trust and confidence.

The employee appealed, seeking to advance for the first time a broader case that the manner of the investigation and disciplinary process itself breached that implied term. The employer cross-appealed against the finding that it lacked reasonable grounds for summary dismissal.

1. Appeal dismissed. Peter Gibson LJ held that the employee should not be permitted to advance the proposed new grounds. The way the claim had been conducted at trial amounted to a concession that the claim based on the implied term could not succeed without proof of bad faith. More fundamentally, the proposed grounds presented a substantially different case from that tried below.

2. The Court of Appeal should ordinarily expect parties to put their whole case at trial. It should be slow to admit a new appellate point that was available at trial but was not raised, particularly where the opposing party might have called further evidence or where the point requires evaluation of oral evidence and findings of primary fact. Here, the proposed challenge to the employer’s enquiries and disciplinary process could have caused the employer to adduce evidence about its investigative practices and regulatory setting. The requested findings did not inevitably follow from the Recorder’s findings and could not fairly be made for the first time on appeal.

3. May LJ agreed, adding that the principle rests on substantial justice as well as efficiency. Parties and the court must know the issues being tried, since those issues determine evidence, litigation expenditure, case management and the final resolution of the dispute. This was not an exceptional case justifying departure from that principle. Hale LJ agreed.

4. Cross-appeal dismissed. Peter Gibson LJ held that the Recorder had addressed the correct question: whether, at the time of dismissal, the employer had reasonable grounds to think that the employee was lying and guilty of gross misconduct. She had considered the circumstances known to the employer. Although another judge might have assessed those facts differently, her conclusion was open to her and could not properly be disturbed.

5. The formal order dismissed both the appeal and the cross-appeal. The respondent received 75% of its costs, subject to a section 18 costs order.

• Court of Appeal (Civil Division) — By [2000] EWCA Civ 514, dismissed the employee’s appeal against the limited damages award and dismissed the employer’s cross-appeal.
• Cardiff County Court — Mrs Recorder J Crowley QC held that the summary dismissal was wrongful because the employer lacked reasonable grounds to believe that the employee was guilty of gross misconduct. She awarded damages for the two-week notice period, rejected the alleged breach of the implied term of trust and confidence, and allowed the employer’s unopposed counterclaim.