Monk v Cann Hall Primary School & Anor

The Court of Appeal allowed Mrs Monk's appeal against the Deputy High Court Judge's order striking out her personal injury claim. The court held that the judge was entitled to permit the defendant council to withdraw some factual admissions but was wrong to refuse Mrs Monk permission to amend her particulars of claim to plead that her employment terminated on 31 August 2008 rather than 10 July 2008. That amendment could put the claim outside the so-called "Johnson exclusion area" established by Johnson v Unisys Ltd, which precludes common-law recovery for loss caused by the fact or manner of dismissal. The court further held that the employment tribunal compromise did not give rise to an estoppel preventing Mrs Monk from pursuing a separate common-law personal injury claim and that it would not be an abuse of process for her to contend that her employment ended on 31 August 2008. The court declined to decide finally whether the injury alleged was too remote.

Background and parties:

• The appellant, Mrs Suzanne Monk, was employed as an administrative assistant at Cann Hall Primary School from October 1997 until August 2008. The council informed her on 6 June 2008 that her post would be withdrawn with effect from 31 August 2008 on grounds of redundancy.
• On 10 July 2008 the chairman of the governors required Mrs Monk to clear her desk and escorted her from the school in a public and summary manner. She alleged that the treatment caused psychiatric injury.

Procedural history:

• Mrs Monk pursued an unfair dismissal claim in the employment tribunal which was compromised in November 2009; the settlement expressly excluded any personal injury claim. She also compromised a separate defamation claim.
• She commenced High Court proceedings in July 2011 claiming damages for personal injury. The defendant council initially admitted breach of duty in correspondence dated 21 October 2011 but later applied (17 July 2012) for permission to withdraw those admissions and to strike out the claim as disclosing no reasonable cause of action, relying on the Johnson v Unisys principle that the common law will not provide a remedy for loss caused by the fact or manner of dismissal.
• On 12 September 2012 the Deputy Judge granted permission to withdraw the admissions and struck out the claim. Mrs Monk appealed.

Issues framed:

1. Whether the council could withdraw admissions made in correspondence shortly before trial.
2. Whether the claim for psychiatric injury arising from the events of 10 July 2008 was barred by the "Johnson exclusion area" which prevents common-law recovery for consequences of the fact or manner of dismissal.
3. Whether the prior employment tribunal compromise or its conduct gave rise to estoppel or otherwise precluded Mrs Monk from altering her pleaded date of termination to 31 August 2008 in order to avoid the Johnson exclusion area.
4. Whether the claim should be struck out as disclosing no reasonable cause of action or as an abuse of process; and whether remoteness precluded the claim.

Court's reasoning and outcome:

• The Court held that the admission in the defence that the defendants had failed to exercise reasonable care was, insofar as it merely admitted facts, unnecessary to permit withdrawal of, but the council's earlier letter had also admitted breach and thus raised issues. Nevertheless the real question was whether the council could take the Johnson point at that stage. The Court accepted that permission to withdraw was not necessarily misconceived in order to raise a pure point of law.
• The Court rejected the argument that the employment tribunal compromise made it unconscionable for the council now to advance the Johnson point. The tribunal had no jurisdiction to award damages for personal injury and the compromise expressly preserved any separate personal injury claim; accordingly there was no estoppel or unconscionability sufficient to prevent the council arguing legal points in the High Court.
• On the strike-out point the Court held the Deputy Judge was wrong to refuse permission to amend. It was arguable, on the evidence and contemporaneous documents, that Mrs Monk's employment continued until 31 August 2008 and that, if so, the events of 10 July could be independent incidents during the employment rather than the date of dismissal. That would likely place the claim outside the Johnson exclusion area. Because the remoteness argument depended on evaluation of evidence it was inappropriate to strike out the claim on that ground at that stage.

Remedy:

• The Court allowed the appeal and gave Mrs Monk permission to amend her particulars of claim to plead that her contract terminated on 31 August 2008. The strike-out order was overturned for the reasons given.

Appeal allowed. The Court held that although the judge was entitled to permit the defendants to withdraw certain admissions to raise a pure point of law, it was wrong to strike out the claim. Mrs Monk should be permitted to amend her particulars of claim to allege that her employment terminated on 31 August 2008; that pleaded amendment might place the claim outside the Johnson exclusion area which precludes common-law recovery for loss caused by the fact or manner of dismissal. The employment tribunal compromise did not estop her from pursuing the personal injury claim and it would not be an abuse of process to seek to amend the pleadings. The court did not finally decide the remoteness issue or whether the events of 10 July 2008 in fact amounted to dismissal.

Appeal from the High Court of Justice (Deputy High Court Judge John Leighton Williams Q.C.), case HQ11X02534, where by a 12 September 2012 decision the judge permitted the defendant to withdraw admissions and struck out the claimant's personal injury claim. The Court of Appeal heard the appeal and allowed it on 10 July 2013 ([2013] EWCA Civ 826). Prior to the High Court proceedings the claimant had pursued and compromised an unfair dismissal claim before the employment tribunal in November 2009 (tribunal proceedings withdrawn following compromise).