Curr v London & Country Mortgages

An employer with an express contractual right to terminate employment during probation on notice may exercise that right without good reason, unless the contract clearly imposes a qualification. A breach of probation procedures may concern the manner of dismissal and fall within the statutory unfair-dismissal regime, but it does not ordinarily create a common-law claim for post-termination losses. Chaplin v Hicks concerns the assessment of damages where an actionable breach causes an uncertain loss; it does not create a separate cause of action for loss of chance. Recasting dismissal losses as loss of a contractual chance does not avoid the Johnson v Unisys limitation. A further claim based on the same dismissal may also be an abuse of process where it reopens matters finally determined or ought to have been raised earlier.

The claimant had been employed by the defendant as a protection adviser and was dismissed during his contractual probationary period. He had received one week’s pay in lieu of notice. Earlier proceedings in the High Court had resulted in summary judgment and strike-out of a claim concerning the dismissal. Subsequent Employment Tribunal proceedings and related appeals or judicial review applications had also failed.

The claimant then brought a further High Court claim, describing his alleged loss as the loss of a contractual chance to meet probation targets and earn future salary and bonuses. The defendant applied for summary judgment under the Civil Procedure Rules 1998, alternatively strike-out for abuse of process, and an extended civil restraint order. The central issues were whether the contractual right to terminate was unfettered, whether the loss-of-chance formulation avoided the limits on common-law dismissal damages, whether the claim was abusive, and whether an extended civil restraint order should be made.

1. Summary judgment. Summary judgment was granted for the defendant. The claim was declared totally without merit. The application for an extended civil restraint order was refused.
2. Contractual right to terminate. The employment contract clearly permitted termination at any time during probation on one week’s notice. A further clause permitted immediate termination with payment in lieu. Neither clause required good reason, and the probation manual did not qualify that right or guarantee completion of probation or permanent employment.
3. Loss of chance. Chaplin v Hicks did not establish a separate cause of action. It recognised that damages may be assessed by reference to a chance where an actionable breach has caused real but uncertain financial loss. Here, any alleged loss flowed from the dismissal itself. Since the employer was entitled to dismiss on notice and the notice payment had been made, no recoverable common-law loss arose.
4. Johnson exclusion area. The claim could not avoid the limitation recognised in Johnson v Unisys Ltd and explained in Edwards v Chesterfield Royal Hospital NHS Foundation Trust by recasting the complaint as breach of express probation procedures or deprivation of a contractual opportunity. Complaints about the fairness or manner of dismissal belonged to the employment tribunal. The principles in Eastwood v Magnox Electric plc did not assist because the claimed financial loss depended on the dismissal and did not arise independently beforehand.
5. Finality and abuse. The earlier High Court decision had finally determined that the employer could terminate without reason. That finding created an issue estoppel. Independently, the new claim repeated the substance and facts of the earlier claim and deliberately advanced a formulation that could have been raised then. Applying Johnson v Gore Wood & Co, it was a clear abuse of process and also bound to fail.
6. Restraint order. The conditions for an extended civil restraint order were engaged because the claimant had persistently pursued meritless proceedings arising from the same grievance. Nevertheless, the judge considered that the time had not yet arrived to make such an order, particularly because it could not prevent an appeal or interfere with pending appellate consideration.

The judgment itself was a first-instance decision on the defendant’s application. It records earlier proceedings and related decisions, including summary judgment in the High Court, strike-out in the Employment Tribunal, dismissal of an Employment Appeal Tribunal appeal, and dismissal of a judicial review application. The present court granted summary judgment and did not make an extended civil restraint order.