Banker’s Court of Session damages appeal over failure of Court of Appeal to refer case to ECJ dismissed

The Sheriff Appeal Court had upheld a decision of the sheriff to dismiss the pursuer’s claim for damages in excess of £2m against the UK state, following which he sought leave to appeal to the Court of Session, but a judge rejected the application as an “abuse of the court process”. 

‘Wrongful dismissal’ 

Lord Malcolm heard that the claim by the pursuer Fermin Aldabe against the UK, which was represented by the Advocate General for Scotland, arose from a decision of the Court of Appeal dated 3 October 2012, which occurred in the context of proceedings raised by the pursuer in the Central London Employment Tribunal.

The pursuer, a dual Italian and Argentine national, came to the UK in August 2008 as part of a search for work and was offered a job with the Standard Chartered Bank – which has its headquarters in London – in its ‘Group Market Risk’ function in Singapore. 

Soon after his arrival in Singapore on 1 December 2008 a dispute arose concerning the terms of employment and on his first morning in his new job the pursuer began to write out a resignation letter, but before it was completed the bank withdrew the offer of employment. 

The pursuer raised proceedings in High Court of the Republic of Singapore claiming damages of about 1.54 million Singapore dollars – described by the judge as an “astronomical and outrageous sum” – for breach of the contract of employment and for fraudulent misrepresentation. 

He was successful in part, the judge having upheld the wrongful dismissal claim, and the court awarded him notice pay dating from the original start date. 

In February 2009, the pursuer then brought a claim in the UK employment tribunal for breach of contract and unlawful deductions; unfair dismissal due to his assertion of a statutory right, relying on section 104 of the Employment Rights Act 1996; and holiday pay. 

But a preliminary issue arose as to the jurisdiction of the employment tribunal to hear the claim, one question for decision being whether the pursuer’s and his employment’s connection with the UK was sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with his claim. 

Preliminary reference 

The employment tribunal dismissed the claim inter alia on the grounds that the tribunal lacked jurisdiction to entertain the claim for unfair dismissal - a decision which was upheld by the Employment Appeal Tribunal (EAT), thereby bringing those proceedings to an end. 

The pursuer sought leave to appeal to the Court of Appeal on the basis that the conclusion reached by the tribunal was discriminatory on grounds of nationality, and as part of his submissions he invited the court to make a preliminary reference to the ECJ for a ruling on the discrimination issue. 

The proposition was that, in terms of article 267 of the Treaty on the Functioning of the European Union (TFEU), the court was obliged to make a reference.  

In refusing the application for leave to appeal, the court refused to make a reference, as any issue of discrimination was not relevant because it had not been material to the tribunal’s decision and there was therefore no issue of EU law.

Thereafter, the pursuer raised the action in the Sheriff Court, arguing that the Court of Appeal was in error in refusing to make the reference; as a result of that alleged error he had been “wrongly deprived” of his right to pursue his claim in the UK employment tribunal against his former employer; and as a result had not obtained the redress which he believed he would have obtained – including an order for reinstatement or re-engagement; that as result he suffered losses; and the UK, being responsible for the failure to refer and hence those losses, should be ordered to pay damages to him.

The sheriff dismissed the action as “irrelevant” and the Sheriff Appeal Court upheld the decision on 5 February 2019, following which the pursuer applied for permission to appeal to the Court of Session in terms of section 113 of the Courts Reform (Scotland) Act 2014.

‘Abuse of process’ 

Refusing the application, the judge described the party litigant’s conduct as an “abuse of the court process”. 

In a written opinion, Lord Malcolm said: “There has been no arguable error of law on the part of the SAC in refusing the appeal from the decision of the sheriff. The test in section 113 of the 2014 Act is not satisfied. 

“There remains the request for this court to make a reference for preliminary rulings under article 267 and rule of court 65. Twenty four questions have been suggested. 

“It would appear that the pursuer has compiled a list of all the questions he can think of which might involve an issue of EU law. Many of them seem to spring from his erroneous belief that only the European Court is permitted to interpret and apply EU law. 

“He also, again wrongly, views this action as another opportunity to have the ECJ address his concerns as to the decisions of the ET and EAT. Those proceedings are over. This is a different and separate process, based on a claim for damages arising from the decision of the Court of Appeal not to make a reference. 

“In the course of submissions, Mr Aldabe stated that if this court fails to make a reference, he intends to raise another action founding upon that failure, and so, as he put it, a ‘vicious circle’ will continue unless and until he achieves his objective. All of this, it seems to me, amounts to an abuse of the court process. 

“This decision, and those in the sheriff court and the SAC, have been based on obvious, clear and well-established legal rules, some of domestic, some of Community law origin. 

“Regard has been had to the 24 questions proposed by the pursuer, and more generally as to the issues raised by this application. No doubtful or unclear issue of EU law requires to be addressed and resolved by the ECJ in order to allow the court to reach a decision. To put it another way, no relevant question of EU law arises. 

“The overall result is that no reference will be made, and the application for leave to appeal to this court is refused.” 

He added: “It was agreed at the hearing that expenses should follow success. Given that the application has failed, the defender will be entitled to an award of the expenses occasioned by the application against the pursuer.”