Clyde & Co Llp & Anor v Winkelhof

On a renewed application for permission to appeal, the court may grant permission where the proposed appeal raises an issue of public importance and has reasonable prospects of success. This may include the statutory effectiveness of contractual dispute-resolution provisions. Permission may extend to consequential questions about enforcement and the exercise of the lower court’s discretion. The permission decision does not determine the merits of those issues.

The appellants challenged the judgment of Slade J dated 21 March 2011. The High Court dismissed their claim and awarded costs against them. The dispute concerned a three-stage contractual procedure involving management-board consideration, alternative dispute resolution and arbitration. The respondent had brought Employment Tribunal claims alleging sex and pregnancy discrimination and detriment for protected disclosures. The High Court held that the clause was ineffective under the Equality Act and the Employment Rights Act 1996, and that the application for an injunction restraining the Tribunal proceedings was ill founded. The central issue on the renewed application was whether permission should be granted to challenge the first two stages of the clause.

1. Permission granted. Lord Justice Aikens granted permission to appeal on all three grounds.
2. The proposed challenge to the first two stages of clause 41 raised an issue of public importance and presented reasonable prospects of success. The court therefore considered that those issues warranted appellate examination.
3. The appellants accepted that, if the third stage, being the arbitration provision proper, were triggered, it would fall foul of the statutory restrictions in the Employment Rights Act 1996 and the Equality Act. Ground one was to be amended to reflect that concession.
4. If the appellants succeeded on the construction of the first two stages, the Court of Appeal would need to consider how those provisions could be enforced. Depending on that conclusion, it might also need to reconsider the judge’s exercise of discretion against the appellants.
5. The order was accordingly: application granted.

1. Court of Appeal (Civil Division): On 5 July 2011, Lord Justice Aikens granted the renewed application for permission to appeal on all three grounds, subject to amendment of ground one.
2. High Court (Queen’s Bench Division): Slade J, on 21 March 2011, dismissed the claim, held that clause 41 fell foul of the relevant statutory provisions, and made a costs order in favour of the respondents.