1. Between January 2008 and June 2009 Ms Michaela MacKenzie was employed by the British National Party as an administrative assistant. In June 2009 she was dismissed, following which she brought a claim for unfair dismissal in the Employment Tribunal. On the second day of the final hearing of that claim, 16 June 2010, a compromise agreement was reached in the following terms:
“Upon the parties reaching agreement as follows:
(1) The Respondents to pay the Claimant £25,000 (payable to the Claimant’s solicitors Renney and Co) on or before 14 July 2010 in full and final settlement of this or any claim that the Claimant may have against the Respondents
(2) There shall be no publication of the terms hereof by the Claimant or the Respondents or any servant or agent thereof
(3) The Respondent to provide the Claimant with a favourable written reference to be sent to Renney and Co on or before 14 July 2010
(4) The claim will be dismissed by 28 July 2010 on withdrawal by the claimant unless the tribunal is notified otherwise in writing if there are any problems in implementation thereof.”
2. One of the issues raised in those proceedings (indeed raised in these proceedings too) was that the British National Party had no legal personality and so could not properly be a party to litigation. For that reason Ms MacKenzie had joined various officers of the party as respondents to her unfair dismissal claim, among them Mr Nicholas Griffin, chairman and leader of the British National Party. Mr Griffin was one of the signatories to the settlement agreement.
3. Ms MacKenzie was not paid the £25,000 by 14 July 2010. She has still not been paid. She has brought proceedings in the county court against Mr Griffin for payment of that sum. Mr Griffin’s original defence and counterclaim has been replaced in its entirety by an amended defence of 22 October 2012. That abandons the counterclaim and raises two main defences. The first is that the settlement was discharged as a consequence of Ms MacKenzie’s breaches of clause 2 of the agreement, the confidentiality clause. The second is that, having given up attempting to enforce the settlement agreement, Ms MacKenzie elected to return to the Employment Tribunal where she sought to resume her temporarily stayed claim. In the event her unfair dismissal claim was dismissed. In those circumstances it is submitted that she cannot now seek to rely on the settlement agreement. This defence is a form of estoppel.
4. The claim was allocated to the fast track. I heard evidence on 29 October 2013 from Ms MacKenzie and her witness Mr Lecomber, and from Mr Griffin. Ms MacKenzie was represented by counsel Mr Joseph, and Mr Griffin by direct access counsel Mr Price Rowland. Both counsel provided me with written and oral submissions, for which I am very grateful. The matter could not be concluded in a day and had to be adjourned so that Mr Price Rowland could provide me with copies of the various authorities he had referred to in his skeleton argument (and make his further submissions on those authorities) and for Mr Joseph to make his closing submissions. Mr Griffin subsequently sought and was granted a longer adjournment than would otherwise have been allowed, because of his duties as a Member of the European Parliament, and the matter was not relisted until 27 March 2014. By this time Mr Griffin had been adjudicated bankrupt (2 January 2014). His trustee in bankruptcy informed the court that he did not intend to appear or make any representations, making the point that there were no funds presently available in Mr Griffin’s estate. But Mr Griffin wished to make further representations himself and did so via a firm of law costs draughtsmen called Forest Costing Services whom he instructed to send a copy of a revised skeleton argument prepared by Mr Price Rowlands dated 16 December 2014. In the event neither Mr Price Rowlands nor Mr Griffin appeared at the resumed hearing. Mr Joseph made his closing submissions. He also was put to the trouble of providing me with the copies of Mr Price Rowland’s authorities, for which I am very grateful.
5. No party wished me to exercise my power to stay the proceedings under section 285(1) Insolvency Act 1986 and there appeared to be good reason to proceed to determine the legal rights as between the parties, not least because that is what both parties wanted me to do.
6. Relating to the alleged breach of the confidentiality clause, my findings are as follows. For the avoidance of any doubt I explain that my findings are made on a balance of probability:
(1) The final hearing of Ms MacKenzie’s unfair dismissal claim began at 1.30pm on the afternoon of 15 June 2010 and continued to 4.30pm. I accept, in broad terms, Ms MacKenzie’s description of proceedings in her blog published on 14 July 2010. I accept that in the course of the hearing Mr Griffin’s barrister admitted that Ms MacKenzie had been unfairly dismissed, at least procedurally. I accept that the evidence of Mr Griffin, in particular his responses to the judge’s questions, would have given the clear impression that Ms MacKenzie’s employer had a poor case in answer to her unfair dismissal claim. All that took place in open court, that is to say, in public. A journalist was present. Some members of the public are also likely to have been present (as they were on the first day of this county court trial). I accept that Ms MacKenzie’s description of the afternoon’s proceedings is reasonably accurate and that the journalist and members of the public present would have got the clear impression that the employer’s case was a weak one.
(2) Settlement terms were agreed on the morning of day two of the hearing, 16 June 2010, following which the court made this order:
“Terms of settlement having been agreed, these proceedings are stayed to allow those terms to be put into effect, and will be treated as dismissed upon their withdrawal on 28 July 2010 unless the tribunal is notified to the contrary before that date.”
That order was also made in open court. A journalist and members of the public were likely to have been present
(3) Ms MacKenzie’s unfair dismissal claim and this settlement came at a time of a leadership contest within the BNP between Mr Griffin and Mr Ed Butler. The fact of the unfair dismissal and Ms MacKenzie’s successful claim, and the “waste” of party funds some members might have believed this to be, was information which assisted Mr Butler’s opposition campaign. Ms MacKenzie was a supporter of Mr Butler.
(4) The terms of the settlement agreement were known not only to Ms MacKenzie and Mr Griffin, but also to Phillip Reddall and Clive Jefferson, the two other officers of the British National Party who were also respondents to the unfair dismissal claim. The terms would also have been known by some of the BNP office staff, in particular those who worked with Mr Griffin, Mr Redall and Mr Jefferson and those who were responsible for organising the payment.
(5) Mr Griffin had left a copy of the settlement agreement lying on his desk at his home. It had been found there by Mr Lecomber, a house-sitter, who read it some time between 26-31 July 2010, and that he also saw there a demand by Ms MacKenzie’s solicitors dated 16 July 2010 for payment of £25,000. Mr Lecomber says he told “several others” “over the next few weeks” what the settlement amount was. I accept what Mr Lecomber says.
(6) There were rumours which came to Mr Griffin’s attention within days of the settlement agreement, that he had reached terms with Ms MacKenzie under which he was to pay her compensation.
(7) I accept Ms MacKenzie’s evidence that she was not responsible for these rumours. I believed her. In particular I believed her when she said that did not wish to jeopardise the agreement. She wanted to receive the £25,000.
(8) There were plentiful other sources from which those rumours may have come. Although Mr Lecomber was not a source of those early stories, the fact that others apart form Mr Griffin and Ms MacKenzie would have known of its existence and its terms, and the fact that the litigation and its outcome was of political interest to opponents of Mr Griffin, supports my finding that there were many potential sources within BNP of the rumours of which Mr Griffin spoke. The first afternoon of the hearing, open to the public, had not gone well for Mr Griffin. And when the parties reached terms of settlement on the second day, members of the public present and interested in the case may well have deduced that the BNP or Mr Griffin had probably conceded the claim and agreed to make some payment to Ms MacKenzie. It is entirely understandable how rumours may have begun to circulate.
(9) Ms MacKenzie held her fire until after the deadline for payment had passed and she had not been paid. She had checked with her solicitors to see if Mr Griffin had made the payment and she was told that he hadn’t. She believed that once that deadline for payment had passed she could talk about the settlement, although she was aware she should still not talk about the amount of the settlement. On 14 October 2010 at 5.07pm Ms MacKenzie published a blog on the internet (some 5 pages of A4) in which she gave a graphic blow by blow account of the employment tribunal hearing (the afternoon of the first day) and then of the settlement negotiations that followed, that afternoon and the following morning.
(10) In that blog, in her description of the settlement negotiations, Ms MacKenzie published the following:
- “day two of the tribunal began with a without prejudice doubling of the settlement offer made the previous day. This was politely declined. A further increased offer was made and again declined. .. A further offer ensued with the admission that I had been unfairly dismissed both procedurally AND substantively. .. I was also assured that the party would provide me with a ‘glowing reference’. My answer was that any reference from the party would be as valuable in finding a job as a reference from Osama bin Laden .. Griffin’s barrister then approached me just 2 minutes before the tribunal was due to re-convene and told her that Mr Griffin wanted to know what I would be prepared to settle for, to name my price. .. Griffin then made the only sensible decision of his life and completely caved in. .. As a postscript to this statement, I am now able to inform you all that Mr Nick Griffin MEP who gave a signed undertaking in court in front of three tribunal judges, his own barrister and a journalist, to pay the agreed settlement by 14 July, has reneged on his word. Further legal proceedings against him, and other party officers, to recover the amount of the settlement have now begun”
(11) This blog would have been read and was intended to be read by party members. It was published in the course of a leadership contest I have mentioned, in which Mr Ed Butler, whom Ms MacKenzie supported, was also running for election against Mr Griffin. The purpose of Ms MacKenzie’s blog – which is clear from other aspects of this long document - was to cast Mr Griffin in a bad light, both as an employer and as a waster of party funds. Her hope was that party members would support Mr Butler and not Mr Griffin.
(12) By her blog, Ms MacKenzie published the following material information:
(i) that Mr Griffin had agreed at the hearing of her unfair dismissal claim to pay her a sum of money by 14 July 2010 and had not paid it, and
(ii) that Mr Griffin had offered to give her a glowing reference, but that she regarded that offer as worthless.
I accept that Ms MacKenzie deliberately avoided revealing the amount of the settlement because she believed that that would put her in breach of clause 2 of the agreement, of which she was aware.
(13) In a video placed on You Tube by Mr Ed Butler on 31 July 2010, Mr Butler said that Ms MacKenzie “was supposed to have been paid today in the terms of the settlement. The amount of the settlement I know but it is a secret. Again, everything is done in secret so you don’t know how much of your money is being flushed down the toilet. They were supposed to pay her today and they haven’t. They have missed a payment deadline. ..” Mr Butler was one of the members of the public present in court on the first day of this (county court) trial. Under cross-examination Ms MacKenzie denied telling Mr Butler what the agreed settlement figure was. She challenged Mr Price Rowlands to ask Mr Butler himself where he got the information from. The challenge was not taken up. Ms MacKenzie might of course have been playing a clever game, calling a fine bluff. But I did not think she was. Having heard Ms MacKenzie’s evidence I am satisfied that the one thing she knew not to disclose, lest it jeopardise her settlement, was the amount of the settlement. I believe her when she says she did not reveal the amount, either to Mr Butler or to anyone else.
7. Against this factual background I consider the case for each side. Mr Price Rowlands submitted that Ms MacKenzie had, whether in conversation with Mr Butler and others, or by her blog, published the terms of the agreement. Mr Joseph submitted she had not, that what she had published was not “the terms”. Counsel’s arguments were developed in their written and oral submissions. My conclusions are as follows:
8. Telling people that Mr Griffin or his advocate had admitted that Ms MacKenzie was unfairly dismissed is not saying anything about the terms of the agreement. There is nothing in the agreement at all about any admission of liability.
9. Telling people that there was a settlement agreement is not publishing the terms of agreement. It is not a breach of clause 2. The order of the Employment tribunal itself begins with the words “Terms of settlement having been agreed ..”. The fact that there was a settlement was public knowledge.
10. Telling people that Mr Griffin agreed to pay a sum of money is saying something about the terms of the agreement. But clause 2 does not prohibit the parties from saying anything at all about the agreement. It states that there shall be “no publication of the terms hereof”. My interpretation of that is a literal one. The “terms hereof” means exactly that. It doesn’t mean “something about the terms hereof”. Nor does it mean “how the agreement came to be reached”. So, for example, if Ms MacKenzie were to have said “Mr Griffin agreed to pay me £25,000” that would be a publication of one of the terms. But to have said, as she in effect did, “Mr Griffin capitulated and agreed to pay me whatever I asked for”, is not. Indeed, Mr Griffin might well have responded to Ms MacKenzie’s blog by saying “I did not capitulate, I did not double any offer, I did not agree to pay what you wanted, my barrister did not ask your solicitor to name your figure, your description of how we came to reach the settlement agreement is quite wrong”. A look at the terms of the agreement would not have provided an answer to which of them was right. That is because these things are not terms of the agreement. They are merely part of the story leading up to the agreement.
11. Telling people that Mr Griffin offered to give Ms MacKenzie a “glowing reference” might have been a publication of one of the terms if Ms MacKenzie had indicated that she accepted that offer. But the content of her blog is to suggest that the last thing she was interested in was a reference from Mr Griffin, and that she did not accept that offer. I am not persuaded that there was a publication of clause 4 of the agreement in these circumstances.
12. Thus, I find that Ms MacKenzie was not in breach of clause 2 of the agreement. But even if I had found otherwise, that would not establish a defence. There are two further issues that would need to be considered. The first is whether the breach was sufficiently serious to amount to a repudiatory breach, that is to say a breach which entitles the innocent party to terminate the agreement. The second is whether, if it was a repudiatory breach, Mr Griffin accepted such breach as terminating the agreement and communicated as much to Ms MacKenzie.
13. If (contrary to my findings) Ms MacKenzie committed a breach of clause 2 by revealing the term which provided for a reference, I would not accept that such publication was a repudiatory breach. Mr Griffin’s remedy would perhaps be not to provide the reference. I am not deciding whether that is right or not – the question has not been argued before me. But I am quite satisfied that publication of the provision in clause 4 to provide a reference would not have entitled Mr Griffin to tear up the whole agreement. That would be disproportionate. And Mr Price Rowland accepted as much in his closing submissions, accepting, rightly in my view, that if such a breach stood alone it would not be a repudiatory breach.
14. If (contrary to my findings) Ms MacKenzie committed a breach of clause 2 by her revealing that Mr Griffin had agreed to pay her a significant sum of money, then I would still have found that this did not amount to a repudiatory breach. The court has to look at the seriousness of that breach against the circumstances as a whole. The circumstances would, I accept, include Ms MacKenzie’s motivation for writing her blog. But the circumstances would also include the fact that rumours, to the effect that Mr Griffin had agreed to pay compensation to Ms MacKenzie, already abounded, rumours which I have found were nothing to do with Ms MacKenzie. People already knew. And Ms MacKenzie was not responsible for those rumours. Neither had she published the amount of the settlement.
15. Moreover, such seriousness as Mr Griffin asserts is substantially mitigated by the fact that Ms MacKenzie did not write her blog until after the deadline for payment of the £25,000 had passed. The significance of this latter point is this. Mr Griffin having failed to make payment by the due date, Ms MacKenzie was free to bring proceedings against him to enforce the agreement - as she has done. The terms of the agreement were going to become public knowledge in the course of those proceedings – as they have done. There has been no application at any stage of these proceedings by Mr Griffin or by any other signatory to the settlement agreement to prevent the public becoming aware of its terms. There were several members of the public in court during the first day of this (county court) hearing. It has not been argued by Mr Griffin or Mr Price Rowland that the publication of the amount of the settlement (indeed of the precise, complete terms of the agreement) by Ms MacKenzie in the course of these proceedings puts her in breach of clause 2 of the agreement. Had it been submitted otherwise I would have held that such publication was permissible and did not involve a breach of clause 2. In other words, once Mr Griffin failed to pay the £25,000, such permissible publication of the terms of the agreement became a real possibility. The point has further significance when (as we shall see) Mr Griffin’s case, when the matter came back before the tribunal, was that Ms MacKenzie should take up her case in the county court.
16. Aside from all that, I find that Mr Griffin did not communicate his acceptance of Ms MacKenzie’s alleged repudiatory breaches as terminating the agreement. Communication within a reasonable period of time of the “innocent” party’s acceptance of the breach as terminating the agreement, is an essential part of the defence of discharge by breach: see Chitty on Contracts, Vol 1, General Principles para 24-002. Nowhere in Mr Griffin’s witness statements or in his evidence does he assert that he communicated his acceptance of the alleged breaches as discharging the agreement. Indeed it looks rather as though his counsel Mr Price Rowlands accepts as much (see his first skeleton argument, para 39). Whatever Mr Price Rowlands means by what he said there, however, he does not appear to be submitting that Mr Griffin accepted or communicated his acceptance of the breach by way of any specific communication. It is correct that, in a skeleton argument put before the tribunal in February 2010 Mr Griffin submitted that Ms MacKenzie should not be allowed to resume her claim in the Tribunal but should be left to enforce the settlement agreement in the county court where she would face “the issues .. concerning the enforceability of the settlement, the repudiation by the Claimant of its terms by breaching the confidentiality agreement ..”. But this is no more than an assertion of issues about enforcement and issues about the alleged repudiatory breach. It does not point to any communication by way of acceptance. Nor does Mr Price Rowland submit that it does.
17 Rather, what Mr Griffin appeared to be saying in his oral evidence before the court was that he considered himself no longer bound by the agreement and made his position clear by his non-payment. He appears to be saying that his non-payment was a sufficient communication.
18 But that is not an accurate reflection of the chronology. Mr Griffin had already ignored his obligations under the agreement before Ms MacKenzie published her blog. The £25,000 was to have been paid on or before 14 July 2010. Mr Price Rowlands agreed with me – and I find – that a proper construction of the agreement was that the £25,000 was to have been paid by close of business or office hours that day, i.e. by 5pm. That is because the objective bystander armed with the necessary information about all the relevant background circumstances, would have said the parties intended that the £25,000 was to be paid to Ms MacKenzie’s solicitors by conventional means (bank transfer or delivery of some bankers draft or some other recognised commercial method of transferring funds) something that would have taken place during business or office hours, and that it was inconceivable that, for example, a BNP officer would have dropped round a bag of cash to Ms MacKenzie’s solicitors after office hours. Ms MacKenzie did not publish her blog until after 5pm, after office hours. She waited until it was clear that Mr Griffin was not going to pay. And she checked with her solicitors that he had not done so before publishing her blog. Mr Griffin had already failed to pay in accordance with the terms of the settlement agreement when Ms MacKenzie published her blog
19 Indeed Mr Griffin told the court that he had already decided not to pay the £25,000 some time earlier. I am quite satisfied that the reason why Mr Griffin decided not to pay the £25,000 on 14 July 2014 was nothing to do with Ms MacKenzie’s blog. The reason was, as he explained, a decision he had reached earlier when rumours had begun to circulate soon after the settlement terms had been agreed. But those rumours were, as I have found, nothing to do with Ms MacKenzie. Mr Griffin is not saying that he was going to pay all along, but that after he read Ms MacKenzie’s blog, he changed his mind. He is not saying that after he read the blog he immediately communicated with Ms MacKenzie or her solicitors and said the deal is off. He had already decided not to honour the agreement long before Ms MacKenzie published her blog.
20. In these circumstances I reject the contention (insofar s Mr Griffin or Mr Price Rowlands are seeking to advance it, if they are) that Mr Griffin communicated his acceptance of Ms MacKenzie’s breaches as discharging the settlement agreement, simply by failing to pay the £25,000 on the due date. This would be a further reason for rejecting Mr Griffin’s first line of defence.
21. For all these reasons I reject the defence that the agreement became discharged by breach.
22. In order to analyse Mr Griffin’s second line of defence, I need to set out the chronology and further findings of fact:
(1) 16 June 2010. Terms of settlement and employment tribunal order, as set out above.
(2) 16 July 2010, two days after the date Mr Griffin should have paid the £25,000, Ms MacKenzie served a statutory demand on him to pay the £25,000. She served a second statutory demand on him on 11 November 2010.
(3) 28 July 2010, Ms MacKenzie sought an extension of the date (the date contained in the tribunal’s order of 16 June 2010) for communicating withdrawal of the claim, to 25 August 2010. The tribunal granted that application on 4 August 2010, although (like Ms MacKenzie’s solicitor) described it as a “stay”.
(4) 17 August 2010. Ms MacKenzie requests a further “stay”, or extension of time, in response to which the Tribunal listed the matter for a hearing “to decide if proceedings are now dismissed and if not what directions may be appropriate”
(5) The matter took a long time to be listed. There was an appeal to the EAT by one of the other respondents to the unfair dismissal claim which may have contributed to this delay. And there was at least one adjournment.
(6) Meanwhile, on 17 February 2011 the Tribunal directed that the claim be “relisted for the hearing to be continued before the same tribunal” with a time estimate of 2 days. The order says it was made after hearing the representations of both parties. Mr Griffin’s solicitors had filed a lengthy skeleton argument (10 February 2011) submitting that the tribunal claim had come to an end and that Ms MacKenzie should take her chance at enforcing the settlement agreement in the civil courts where she would have to face the argument that she broke the agreement by publishing its terms. At paragraph 43 on page 440 of the bundle, we read this submission:
“These matters of dispute are matters that lie wholly within the jurisdiction of the County Court. By asking the Employment Tribunal to allow her to re litigate her employment claim, the claimant is seeking to avoid the jurisdiction of the county court and her liability for her own actions.”
I deduce from the order made by the tribunal, that Ms MacKenzie’s solicitor must have submitted that the tribunal hearing (left part heard on 16 June 2010) should continue and that Ms MacKenzie should not have to proceed in the county court. One might have got the impression from the order made on this day (17 February 2011) that the tribunal heard these competing submissions and preferred Ms Mackenzie’s arguments to those of Mr Griffin, but evidently the tribunal had not made a ruling at all, as a consideration of the order next made shows.
(7) A “case management discussion” took place on 9 August 2011. The Order made and some reasons for it are at pages 482-3 of the bundle. The tribunal gave directions listing what it described as “the resumed hearing” before the same tribunal as began hearing the case in 2010, to be heard on 7 to 10 November 2011. Significantly it went on to provide as follows:
“The following preliminary issues may be considered by the Tribunal, if it considers it appropriate, before recommencing the resumed Hearing:
i) whether the Tribunal ought to recuse itself from resuming the hearing;
(ii) the identity of the proper respondents to the proceedings ..
(iii) whether the proceedings ought to be struck out or stayed as an abuse of process, on the basis that the proceedings were (sic) claimant has sought to enforce the terms of settlement apparently entered into on 16 June 2010 by way of civil enforcement proceedings”.
The inferences I draw from this third preliminary issue are, first, that Mr Griffin was continuing to press his argument that Ms MacKenzie should be limited to enforcing the settlement agreement in the county court whilst Ms MacKenzie maintained her argument that the unfair dismissal claim should continue before the Tribunal, and, secondly, that the tribunal had still not yet ruled on these competing arguments.
(8) The order made on 9 August 2011 directed the parties to exchange skeleton arguments on these preliminary issues. Mr Griffin’s solicitors had already done so. If Ms MacKenzie’ solicitor served a skeleton argument for her client, it is not in the bundle, and no-one before me in these proceedings is quite sure whether the solicitor did so.
(9) A few days before the resumed hearing Ms MacKenzie’s solicitors wrote to Mr Griffin’s solicitors (letter 3 November 2011) proposing
“without prejudice to costs, and on the basis that it is agreed that the settlement terms of 16 June 2010 are effective as an enforceable agreement (albeit that the liabilities under it are in dispute) the Claimant is willing to consent to the Tribunal proceedings being stayed or discontinued on the terms of the compromise set out in the order dated 16 June 2010”
A copy of that letter was sent to the Tribunal. The offer was repeated in similar terms in Ms MacKenzie’s solicitor’s letter of 4 November 2011. No reply appears to have been received.
(10) The 7 November 2011 was a reading day for the Tribunal. On 8 November 2011, at the Tribunal hearing, the parties discussed matters, and put terms of a consent order before the Tribunal. The tribunal’s order reads as follows:
“Upon the claimant conceding by her counsel that these proceedings were dismissed in accordance with the judgment of 16 June 2010,
By consent no further order is made. .. “
(11) The order made by the tribunal on 8 November 2011 also gave directions for dealing with any application for costs, for wasted costs or for a “preparation time order”. A costs application was indeed later made on Mr Griffin’s behalf but was subsequently withdrawn.
23. Mr Price Rowlands submitted that a claimant in the employment tribunal who reaches terms of settlement has an election: she can either accept the terms and seek to enforce them; or she can proceed with her claim before the tribunal and try to obtain findings of fact and judgment. But she can’t do both. In particular she can’t press on with her unfair dismissal claim and, after she loses, seek to enforce the earlier terms of settlement. He submits that Ms MacKenzie elected to proceed with her unfair dismissal claim before the tribunal. She even did so in the face of Mr Griffin’s arguments that she should stick to her remedies in the county court. One might add to Mr Price Rowland’s submissions the point, arising from my findings of fact, that on two occasions (17 February and 9 August 2011) Ms MacKenzie must, through her solicitor, have told the court that she wanted to press on with her unfair dismissal claim and did not want to enforce the settlement agreement in the county court. Mr Price Rowlands suggested that Ms MacKenzie was trying to get more than she had obtained in her settlement agreement, or was seeking another opportunity or forum in which to make political points. Mr Price Rowlands develops his submissions comprehensively in his two skeleton arguments. He relies on various authorities, including Australian Commercial research and Development Ltd v ANZ  3 AER 65, Barber v Staffordshire County Council  ICR 379 and Lennon v Birmingham City Council  EWCA Civ 435. He in effect submits that Ms MacKenzie had a choice but could not choose both and is stuck with the choice she made, which was to try her hand once again before the Employment Tribunal. He submits that Ms MacKenzie is estopped – by cause of action estoppel or res judicata or issue esoppel or by her election – from reverting to the June 2010 settlement agreement and seeking to enforce it in the county court. And he submits that the election she made, to return to the Tribunal, was irrevocable.
24. Had the facts of this case been different, I would have had considerable sympathy with Mr Price Rowland’s submissions, based on the authorities he relied upon. There is merit in an argument that a claimant who, knowing she faces issues about breaches of a confidentiality clause were she to enforce settlement terms, chooses instead to press on with a part-heard unfair dismissal claim (hoping to get a judgment which she could enforce without the inconvenience of having to respond to arguments about breach), should not be permitted to fall back on the settlement terms after she has lost her unfair dismissal claim.
25. But that is not what happened here. What I am satisfied happened here is as follows:
26.1 Mr Griffin was continuing to argue – as his February 2011 skeleton argument showed - that Ms MacKenzie should not be allowed to proceed in the Tribunal and should seek to enforce the settlement agreement instead and face the defence of repudiatory breach. Ms MacKenzie had clearly been minded to submit the opposite.
26.2 But those positions remained submissions. The Tribunal had not yet ruled. The question was to be determined by way of a preliminary issue. If the parties had left the matter to the Tribunal they might have been two possible rulings, one which allowed Ms MacKenzie to proceed, or one which told her that her tribunal case had ended and she should enforce the settlement agreement in the county court. Nowhere do I see in Mr Griffin’s February 2011 skeleton argument the notion that Ms MacKenzie had made an irrevocable election to resume her unfair dismissal claim and was stuck with that. That is not what Mr Griffin wanted to say at all. He was saying the very opposite. And apart from the parties’ submissions, the reality was that the tribunal had not yet decided whether Ms MacKenzie could resume her unfair dismissal claim.
26.3 No irrevocable step had been taken by Ms MacKenzie, Not yet anyway. It might have been otherwise if the Tribunal had decided that Ms MacKenzie could proceed with her unfair dismissal claim and the case had restarted. But that point was never reached. That is because the parties reached a settlement (their second in the course of those proceedings) on 8 November 2011, put before the Tribunal in the form of a Consent Order
26.4 Underlying that Consent Order was the parties’ agreement that Ms MacKenzie would pursue her remedies in the county court, and face whatever arguments about breaches of the agreement the respondents might properly raise. I do not accept that the respondents to the Tribunal claim were saying that Ms MacKenzie could not even pursue her claim in the county court. Rather, the respondents were saying that she should pursue her remedies in the county court, the very opposite of what Mr Griffin is saying in his second line of defence.
Such are my findings.
27. This interpretation of what happened, what was agreed on 8 November 2011, what was intended by the parties, and what was meant by the Tribunal’s order, is consistent with the Tribunal’s use of the phrase “dismissed in accordance with the judgment of 16 June 2010” (my emphasis), which judgment refers to the parties’ earlier settlement agreement. It is consistent with the chronology of what happened after Mr Griffin’s failure to pay the £25,000. It is consistent with the overtures to further settlement made by Ms MacKenzie’s solicitors in their letters of 4 and 5 November 2011, ahead of the hearing. It is consistent with the fact that Ms MacKenzie herself consented to this order.
28. For those reasons I do not accept that Ms MacKenzie is estopped by election or otherwise from bringing her claim in the county court. In short I can see no unconscionable conduct on the part of Ms MacKenzie, or unfairness to Mr Griffin, to support an estoppel preventing Ms MacKenzie from pursuing these county court proceedings. Insofar as Mr Griffin may have been caused any wasted costs in the tribunal between July 2010 and November 2011 he was provided with a remedy under the express terms of the 8 November 2011 order.
29. If there is an estoppel at work here, it seems to me that it works the other way round. In the light of the order made on 8 November 2011 and my findings of fact, it is Mr Griffin who is estopped from preventing Ms MacKenzie bringing this claim in the county court.
30. Thus Mr Griffin’s second line of defence fails.
31. No other defences were relied upon or developed by Mr Price Rowlands in his closing submissions.
32. Mr Joseph sought in his closing submissions to argue that the compromise agreement of 16 June 2010 was a bill of exchange drawn and dishonoured by Mr Griffin and that there is no defence to a claim for dishonour of the bill. But that claim was not pleaded in the particulars of claim. It is not surprising therefore that Mr Price Rowlands did not address it in his submissions. I shall not address it in this judgment either, save to say that it was not pleaded.
33. In any event, for the reasons which I have given, the claim succeeds. I give judgment for Ms MacKenzie for the sum of £25,000
34. Mr Joseph submitted, at the hearing on 27 March 2014 that I should address the matters of interest and costs in this judgment in order to try to spare the parties further costs in returning to court. I shall accede to that invitation. Mr Griffin had the opportunity to attend at the hearing on 27 March 2014. The date was specifically fixed in order to accommodate his convenience. He chose not to attend.
35. As for interest I shall award the judgment debt rate. Although the settlement agreement was not a judgment debt, it was a settlement agreement made in the course of proceedings. In the exercise of my discretion I accept Mr Joseph’s submission and award interest at the rate of 8% per annum from 14 July 2010 to date.
36. As for costs, there is no good reason here to depart from the usual rule, that the loser should pay the winner’s costs. But I am not persuaded that there is justification for ordering indemnity costs, as Mr Joseph asks. The defences advanced do not to my mind put the conduct of proceedings by the defendants out of the ordinary or otherwise into the category of conduct justifying indemnity costs. The defendant shall pay the claimant’s costs of the claim to be assessed if not agreed, on a standard basis.
37. This was a fast track claim, but it lasted more than a day. The costs schedule is substantial. It seeks just short of £49,000. I am told that the schedule was served on Mr Griffin’s trustee in bankruptcy but was not served on Mr Griffin himself. So he may not have seen it. I shall order that there be a detailed assessment of the claimant’s costs. I shall however make an order under CPR rule 44.3(8) that the defendant do pay a sum of £25,000 by way of costs on account. I consider that to be a reasonable proportion of the sum claimed.
38. I shall hand down judgment on a date to be fixed as soon as possible. I release counsel from attending that hearing although any party or representative instructed may of course do so.
District Judge Watson