Soteriou v Ultrachem Ltd.

For a second appeal, permission requires more than an arguable issue. The appeal must significantly centre on an important point of principle or practice, and its determination must warrant using the Court of Appeal’s facilities.

Where a claimant need not rely on an illegal act, contractual illegality depends on whether the method of performance and degree of participation turned the contract into an illegal contract. Illegality defines the substantive content of a right rather than creating a procedural bar to court access, so Article 6 is not engaged. A future entitlement is a possession under Article 1 of the First Protocol only if it is a legal right, not a hope based on an incorrect view of domestic law. Uniform rules are not discriminatory merely because they produce different outcomes.

Mr Andreas Soteriou sought permission for a second appeal from a decision of His Honour Judge Altman, sitting as a deputy High Court judge, handed down on 16 April 2004. The judge had heard an appeal from Master Leslie’s decision on a strike-out application.

The judge held that findings by the Employment Tribunal concerning illegality operated as an issue estoppel, making the civil claim unenforceable. He also considered whether the claim constituted an abuse of process. The proposed appeal raised issues concerning contractual illegality, issue estoppel and Articles 6, 1 of the First Protocol and 14. The central question was whether those issues met the second-appeal permission threshold.

Application refused. Lord Justice Buxton held that no proposed point was sufficiently important or arguable to justify permission for a second appeal.

1. Under paragraph 52.13 of the Civil Procedure Rules, permission requires an important point of principle or practice. It is insufficient that such a point might arguably arise. The appeal must significantly centre on the point, and it must be right in the circumstances for the Court of Appeal’s facilities to be used to determine it.
2. On domestic illegality, the court accepted for present purposes that the claimant might not need to rely on the illegal conduct. The applicable inquiry, identified in Hall v Woolston Hall Leisure Ltd [2001] 1 WLR 225 and Colen v Cebrian [2004] ICR 568, was whether the chosen method of performance and the degree of participation in that illegal performance were sufficient to turn the contract into an illegal contract. That was a question of fact. The Employment Tribunal’s findings made it highly likely that domestic illegality would apply.
3. Illegality defines the substantive content of the right asserted. It does not impose a procedural bar to access to a court. Article 6 therefore was not engaged merely because illegality prevented enforcement. Unlike limitation, illegality did not prevent the claimant from bringing his issues before the court, and no proportionality assessment arose.
4. For Article 1 of the First Protocol, even assuming that a future right could constitute a possession, the right had to be a legal right. The claimant had only a hope founded on an incorrect view of domestic law. Stransal did not establish that Article 1 was engaged, since the relevant issue there had been assumed rather than decided.
5. The Article 14 argument was unarguable. The same rules applied to everyone. Different outcomes in cases such as Tinsley v Milligan did not make the substantive law discriminatory.

The formal order was that the application for permission to appeal was refused.

1. Court of Appeal (Civil Division): On 2 November 2004, Lord Justice Buxton refused permission for a second appeal.
2. High Court of Justice, Queen’s Bench Division: His Honour Judge Altman, sitting as a deputy High Court judge, handed down his decision on 16 April 2004. He held that the Employment Tribunal’s findings of illegality operated as an issue estoppel and that the civil claim was unenforceable.
3. Earlier proceedings: The High Court decision concerned an appeal from Master Leslie’s decision on a strike-out application. The judgment also recorded relevant findings by the Employment Tribunal.