Curr v London & Country Mortgages [2020] EWHC 1661 (QB)

Frances CoulsonSenior & Managing Partner, Head of Litigation & Insolvency, Moon Beever

Curr v London & Country Mortgages [2020] EWHC 1661 (QB), a judgment of Andrews J, is the classic case of a former bankrupt pursuing vexatiously litigation that was not his to pursue.

 Mr Curr had been employed by London & County Mortgages. On 8 December 2017 (less than 3 months into his probation period) he had a probation review meeting. The meeting was reconvened a few days later when he was told that his employment was being terminated with immediate effect. He was paid one week’s salary in lieu of notice. Detailed reasons for the decision followed. Mr Curr appealed, but the appeal was rejected on 9 January 2018.

In February 2018, Mr Curr issued proceedings against L&C claiming damages for breach of an implied term of mutual trust and confidence. The damages claimed amounted to an optimistic £1,125,000 based on an estimate of prospective salary earnings over 45 years. On 10 May 2018, Master Cook made an order granting L&C summary judgment. He also struck out the statement of case (i.e. the particulars of claim) under CPR 3.4(2(a) as disclosing no reasonable grounds for bringing the claim. He ordered Mr Curr to pay L&C’s costs, summarily assessed at £15,000. Mr Curr failed to pay, so L&C petitioned for his bankruptcy, and a bankruptcy order was made.

On 13 November 2018 Mr Curr issued further proceedings for breach of contract against L&C in the Bristol Employment Tribunal again alleging breach of the implied term of trust and confidence. Again, he claimed damages of £1.1million odd, or in the alternative the maximum statutory award of £25,000. Those proceedings were struck out because, inter alia, there were no reasonable prospects of success: any claim for breach of the implied term of trust and confidence was doomed to fail, as a result of the master’s earlier decision. Mr Curr sought to appeal against that decision to the Employment Appeal Tribunal, to which an appeal only lies on a point of law. The appeal was considered on paper but dismissed on the basis that the notice of appeal disclosed no reasonable grounds for bringing an appeal. At a subsequent oral hearing on 19 February 2020 the judge took the same line and directed that no further action be taken on the appeal, and that the appeal should itself be dismissed.

The very next day Mr Curr issued the claim form that was the subject of the hearing to which the judgment relates. By that date, Mr Curr had been discharged from his bankruptcy, so any cause of action in existence at the time of the bankruptcy order vested and remained vested in the Official Receiver. As the judge remarked, “I can understand why Mr Curr might have assumed that his right to bring a claim would revert to him on discharge from bankruptcy, which is what he told me: but that assumption was mistaken.”

Unsurprisingly, Mr Curr’s latest attempt to litigate his employment claim failed – for tried and tested reasons. The judge said,
 

“This claim is the clearest possible abuse of the process of the court, as it seeks to re-open issues that have been finally and conclusively determined against Mr Curr; but even if that were not the case, it is clearly and obviously bound to fail. There is no prospect of success at trial […]”

She went on:
 

“It is an important principle of public policy that there should be finality in litigation. L&C is entitled not to have to face a third set of proceedings asserting, for essentially exactly the same reasons as in the previous two, that it is liable to Mr Curr for repudiatory breach of the contract of employment, however his claim is put, and irrespective of whether the latest version would bring the claim outside the ambit of Johnson v Unisys. The claim could also be characterised as a collateral attack on the Master’s decision, which was not appealed and which is binding on Mr Curr as well as on L&C.”

She went on to give summary judgment in favour of L&C, finding also that the claim was totally without merit.

On the effect of the bankruptcy she said this:
 

“If the claim otherwise had merit, it seems to me that the question of status to bring it is one which might be capable of resolution. Despite the fact that Mr Curr had taken no steps to find out from the Official Receiver whether he would be willing to assign him the cause of action, the proper course in those circumstances might well be to give him a final chance to do so: see Pathania v Adedeji and another (Bank of Scotland Plc intervening) [2014] EWCA Civ 681 per Floyd LJ at [15]-[16]. On the other hand, if this claim is hopeless and/or an abuse of process, Mr Curr’s lack of status to bring it really takes matters no further.”

The judgment also contains a useful reminder of when an extended civil restraint order can be made, prohibiting the applicant issuing further applications without the Court’s permission.  The court is obliged to consider whether to make a civil restraint order when it finds, as here, that a claim or application is totally without merit (i.e. bound to fail) and can make an order where a party has persistently issued claims or made applications which are totally without merit.  On the facts the jurisdiction to make an ECRO was engaged but the judge was “just about persuaded that the time has not yet arrived”.

Sarah May

Partner

Moon Beever LLP