Roger v National IT Learning Centre Ltd

Permission for a second appeal requires an important point of principle or practice, or another compelling reason. A genuine question may satisfy that threshold where a self-employed intermediary promoting distance-learning courses may be a commercial agent under the Commercial Agents Regulations. Where course materials form a real part of the arrangement, it is not necessarily correct to regard them as merely incidental to the learning service. The application of the statutory definition required full argument. A litigant relying on an unpleaded statutory claim must identify in writing the factual basis and the remedy provision relied upon.

The claimant had contracted with the respondent under an agreement described as one for independent specialist services. A District Judge awarded him £400 for breach of contract. On appeal, HHJ Sennitt held that he was not an employee for the purposes of the Employment Act Regulations and was not a commercial agent under the Commercial Agents Regulations.

The claimant applied to the Court of Appeal for permission to bring a second appeal. The principal issue was whether promoting distance-learning courses, involving the supply of course manuals, CDs and other computer materials, could amount to negotiating the sale of goods under section 2 of the 1993 Regulations.

1. Disposition. The application for permission to appeal was allowed on the commercial-agency ground. Costs were stayed pending resolution of the appeal. The appeal was to be listed for half a day before a court of three, which might include a puisne judge.
2. Second appeal threshold. Permission for a second appeal requires an important point of principle or practice, or some other compelling reason. The proposed commercial-agency ground raised a genuine point of law and therefore satisfied that threshold.
3. Employment ground. The contractual term expressly stating that the parties intended an independent-services relationship, rather than employment, supported the conclusion that the claimant was not an employee for the purposes of the Employment Act Regulations. Any reliance on their dispute-resolution mechanisms had to be pursued in the Employment Tribunal rather than the County Court. Permission was refused on that ground.
4. Commercial agency. The claimant’s reliance on the Commercial Agents Regulations was raised for the first time on appeal and had not been pleaded, although the lower judge permitted it to be argued. Section 2 defines a commercial agent as a self-employed intermediary with continuing authority to negotiate the sale or purchase of goods for a principal. The supply of course materials might be a genuine part of the arrangement rather than merely ancillary to the learning service. The Court of Appeal did not decide that issue, but held that it was a genuine legal question requiring consideration by the full court.
5. Further particulars. Before the appeal, the claimant was required to provide the respondent with written reasons why he said he was a seller of goods and to identify whether he claimed indemnity or compensation under the Regulations.

• Court of Appeal (Civil Division): On 2 March 2007, in [2007] EWCA Civ 258, allowed the application for permission to bring a second appeal on the commercial-agency issue and stayed costs.
• Cambridge County Court, HHJ Sennitt: On 6 September 2006, dismissed the claimant’s appeal on the grounds that he was not an employee and was not a commercial agent.
• Cambridge County Court, District Judge Pelly: On 8 May 2006, awarded the claimant £400 for breach of contract.