Tyne and Wear Passenger Transport Executive t/a Nexus v National Union of Rail, Maritime and Transport Workers & Anor

A claim for rectification is not necessarily barred by cause of action estoppel, issue estoppel or abuse of process merely because an earlier employment claim decided the proper construction of the relevant agreement. Rectification addresses an alleged mistake in the making of a document, whereas construction addresses its meaning. Where the earlier tribunal could not grant rectification and the relevant parties and interests differed, the mistake issue need not have been raised earlier. A collective agreement may be capable of rectification even though it is not legally enforceable. At an interlocutory stage, laches, acquiescence and delay will rarely justify strike-out or summary judgment where delay and prejudice remain factually disputed.

The claimant operated the Tyne and Wear Metro and had entered into a collective agreement with the defendant trade unions concerning pay and allowances. Employees later succeeded in proceedings concerning the construction of that agreement and their entitlement to shift allowances, culminating in Tyne and Wear Passenger Transport Executive t/a Nexus v Anderson and others [2018] EWCA Civ 2084.

The claimant then sought rectification of the collective agreement for alleged common or unilateral mistake. The court tried a preliminary issue concerning cause of action and issue estoppel, and then heard an application to strike out the claim or obtain summary judgment on abuse of process, the alleged incapacity to rectify a collective agreement, and laches, acquiescence and delay.

1. Estoppel. The claim was not barred by cause of action estoppel. The earlier proceedings concerned the construction of employees’ individual contracts. The rectification claim accepted that construction but alleged that the agreement should be rectified for mistake. The mistake issue was not decided previously, and rectification could not have been granted in the earlier proceedings. The circumstances did not require the claimant to raise the mistake arguments there.

2. The same conclusion followed for issue estoppel. The mistake issue was not necessarily common to both proceedings, and it could not with reasonable diligence or in all the circumstances have been raised earlier. In any event, special circumstances made it unjust to prevent the claimant pursuing rectification.

3. Privity. Applying the approach in Resolution Chemicals Limited v H. Lundbeck A/S [2013] EWHC Civ 924, the court considered the defendants’ interest in the earlier litigation, their relationship with the employees, and whether it was just to bind the claimant. The unions had an interest, but were not in reality parties to the employees’ proceedings. Nor would it be just to bind the claimant by that outcome. The defendants therefore lacked privity of interest.

4. Abuse of process. The rectification claim was not a collateral attack on the earlier judgment. The parties, issues and remedies differed. Applying the broad merits-based approach in Johnson v Gore Wood & Co [2002] 2 AC 1 and Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260, pursuing the claim was not manifestly unfair and would not bring the administration of justice into disrepute.

5. Rectification and interlocutory relief. Rectification is an equitable remedy not confined to legally binding contracts. A collective agreement could therefore be capable of rectification. The difficulties concerning proof of intention did not justify strike-out. Nor did the evidence establish at that stage the delay and prejudice required for laches, or a justified belief sufficient for acquiescence.

6. The preliminary issue was determined in the claimant’s favour. The defendants’ application to strike out the Particulars of Claim or obtain summary judgment was dismissed.