Dan Cornel Nistor & Anor v Union of Shop, Distributive and Allied Workers (USDAW)

The claim by two former Tesco distribution centre employees against their trade union was struck out and judgment entered for the defendant. The court held that the particulars advanced no arguable cause of action: negligence and alleged fiduciary breaches were unsustainable because a trade union does not owe an individual duty of care in the collective bargaining context and the pleaded facts did not show disloyalty or other features of a fiduciary breach. Statutory and criminal statutes relied on (including the Fraud Act 2006 and Bribery Act 2010) do not create civil causes of action in the High Court for the matters pleaded, and Equality Act 2010 complaints of unequal treatment should have been pursued in the Employment Tribunal and in any event were not pleaded as discrimination by protected characteristic. Claims said to arise under section 20 TULRCA (inducing breach of contract) were not supported by any arguable facts because the claimants admitted the collective agreement did not apply to them and did not identify any enforceable contractual rights that the union had induced Tesco to breach.

Background and parties: The claimants, a father and son, were members of USDAW and were employed at Tesco's Lichfield Distribution Centre between May 2017 and March 2021. They complained that a collective agreement and site agreements gave enhanced terms (including "retained pay") to employees who transferred from other sites before 2012, leaving post-2012 recruits less favourably treated. They sued USDAW in the High Court seeking large damages and various remedies.

Nature of the claim / relief sought: The Claim Form and Particulars advanced multiple heads of claim described as professional negligence/gross negligence/fraud, breach of statutory duty, breach of fiduciary duty, breach of contract (relying on a trade-union provision said to be "section 20" of the Trade Union Act 1992, which the judge treated as a reference to section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992), and illegal use of union funds. Remedies sought included exclusion of officers and significant compensatory and aggravated damages.

Procedural posture: This was a first-instance strike-out and summary judgment application by USDAW under CPR 3.4(2) and CPR Part 24. The defendant relied on witness statements and collective agreement documents. The court also had regard to factual background in the Court of Appeal judgment USDAW and others v Tesco Stores Ltd [2022] EWCA Civ 978.

Issues framed:

• Whether any duty of care or other civil cause of action was owed by the union to individual members in respect of collective bargaining outcomes;
• Whether the pleaded allegations could establish breach of fiduciary duty;
• Whether statutory provisions relied on (including the Fraud Act 2006, Bribery Act 2010 and Equality Act 2010) gave rise to a justiciable civil claim in the High Court on these facts;
• Whether any claim in tort under section 20 TULRCA for inducing breach of contract was arguable;
• Whether the claim was an abuse of process and/or totally without merit such as to justify a civil restraint order.

Court’s reasoning and conclusions: The court found there was no arguable duty of care to individual members in the collective bargaining context and that Langley v GMB was distinguishable because that case concerned an assumed responsibility to provide individual legal advice. The fiduciary claim failed because the particulars lacked any factual basis for disloyalty, conflict of interest or improper profit; mere disadvantage from a collective agreement did not amount to fiduciary breach. Criminal statutes cited (Fraud Act 2006, Bribery Act 2010) do not confer civil remedies in the High Court for the pleaded complaints. Equality Act claims would properly lie in the Employment Tribunal under sections 114 and 120 and the pleadings did not identify discrimination linked to a protected characteristic; references to sections 39, 57 and 145 EA 2010 were therefore unarguable in this court. The asserted section 20 TULRCA claim (inducing breach of contract) lacked essential elements because the claimants did not establish enforceable contractual rights under the collective agreement and admitted it did not apply to them. Overall the particulars disclosed no reasonable grounds, were an abuse of process and the claimants had no real prospect of success. The court therefore struck out the Claim Form and Particulars and, further or alternatively, entered summary judgment for the defendant. The judge considered but declined to make an extended civil restraint order, as the threshold of persistence had not been conclusively met, while warning the claimants about future vexatious litigation.

The claim is struck out and judgment is entered for the defendant. Rationale: the particulars disclose no reasonable grounds and the claimants have no real prospect of success on any pleaded cause of action. Negligence and fiduciary claims fail as a matter of law in the collective bargaining context; statutory and criminal provisions relied on do not give rise to a justiciable High Court cause of action on the pleaded facts; Equality Act complaints lie to the Employment Tribunal and were not properly pleaded; and a section 20 TULRCA claim for inducing breach of contract is not made out because the collective agreement relied upon did not apply to the claimants and there is no arguable inducement. The claim is therefore an abuse of process and summary judgment is appropriate.