Practice and Procedure


PUBLISHED November 7, 2003

Where the allegation of dishonesty in a claim based in deceit had not been pleaded, or put to the defendant in the course of the hearing, or dealt with in closing, it could not be said that there was no prejudice.Defendant's ('W') appeal from the decision of HH Judge Critchlow on 10 April 2003 at Reading County Court to find against him in the claimant's claim in deceit. W, who was employed as a pilot by Virgin Atlantic ('VA'), secured an interview with the claimant ('DHL'), at which he said that he could be released from VA without difficulty. On 8 October 2002, DHL wrote to W offering him a job commencing on 5 November 2002, and requiring him to attend a course. W accepted the offer by letter, and started attending the course on 5 November 2002, on which date he was still employed by VA and believed that he was going to be made redundant. W did not receive a contract from DHL until 6 or 7 November 2002. On 24 November 2002 W informed DHL that he could not commit himself to working for it. DHL contacted VA and discovered that W was still employed by it, and sought to recover the cost of the course from W. The judge found that: (i) by signing and returning the offer letter of 8 October 2002, W had represented that he would be available for employment on 5 November 2002 and released from VA; (ii) W knew on 5 November 2002 that if he told DHL he was still employed by VA he would not be permitted to go on the course; (iii) W's course of conduct was dishonest because he knew DHL was under a misapprehension but he remained silent as he had hoped to get a redundancy payment from VA; and (iv) as a result of W's representation, DHL sent him on the course. W argued that the case on which the judge found against him was never pleaded, nor dealt with in closing speeches nor put to him in the course of the hearing.HELD: (1) It was important to remember that a central ingredient of the allegation of deceit was an allegation of dishonesty. (2) It could not be said that there was no prejudice or that the judge's findings would have followed had the point been dealt with as required.Appeal allowed. Judgment entered for W.