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The Court of Appeal today handed down judgment in the case of John Yapp v Foreign and Commonwealth Office (FCO). The FCO’s fundamental challenge to the Judge’s finding that Mr Yapp was treated unfairly and in breach of contract has been dismissed. The FCO’s challenges to the Judge’s findings on causation were also dismissed. The Judge’s findings on foreseeability of personal injury and a discrete issue on the fairness of the disciplinary process were overturned. The FCO’s separate appeal in relation to the interest on damages due to Mr Yapp was dismissed.
Mr Yapp was the British High Commissioner in Belize who was summarily withdrawn from post in June 2008 after false and offensive allegations of sexual misconduct were made against him by a Belizean politician in opposition, Mr Eamon Courtenay. He not only lost his job with attendant allowances and benefits but became ill with clinical depression after being withdrawn from post and then subjected to a lengthy disciplinary process, during the course of which the allegations of sexual misconduct were dismissed unequivocally and following hostile media intrusion and inaccurate reporting repeated internationally, which caused immense distress to Mr Yapp and his family and in respect of which he brought a successful libel action against the Mail on Sunday.
Mr Yapp was offered no other position by the FCO and never returned to work. In due course he retired.
In May 2013 the High Court (Cranston J) found the FCO liable to pay damages to Mr Yapp for breach of contract and for breach of its duty of care to Mr Yapp following his summary withdrawal from post. The FCO appealed against this decision.
Subject to appeal, in June 2013 agreement was reached as to damages payable by the FCO to Mr Yapp consequent upon Cranston J's decision. At the FCO's request, Mr Yapp agreed to those damages remaining in his solicitor's client account pending determination of any appeal. Mr Yapp was awarded interest at 8% on those damages less any interest accumulated by virtue of the money being held in client account. The FCO appealed against this decision.
The Court of Appeal dismissed the FCO's appeal in relation to issues of breach and causation and upheld the decision that the FCO acted in breach of contract to Mr Yapp in withdrawing him from his post as High Commissioner without affording him fair treatment.
The trial Judge had found that Mr Courtenay's allegations should have been treated with a healthy scepticism; elementary investigation would have demonstrated that some of the less serious allegations were untrue and that some of the more serious could be discounted; and that the reputational damage supposedly suffered by the UK was significantly overblown. There should have been some discussion with Mr Yapp and the failure to discuss the allegations made was a breach of the obligation of fair treatment which the FCO owed to Mr Yapp under his contract of employment. Had there been any such discussion, some further allegations concerning the treatment of a few High Commission staff would not have been pursued through a misconduct enquiry.
The Court of Appeal confirmed that it was unnecessary for the FCO to act as precipitately as it did without any further enquiries of any kind and without even putting the allegations to Mr Yapp. It was described as surprising to see the FCO making a decision of this gravity on the basis of a single telephone conversation with a politician in the host country, and that even apart from the question of fairness to the post-holder, one might have expected some consideration of whether the informant might have his own agenda or be otherwise unreliable.
The Prime Minister of Belize (and former longstanding Foreign Minister), the Hon. Dean Barrow, was a witness in the proceedings at trial. He described Mr Yapp as 'one of the best High Commissioners we have had in Belize. I found him to be a consummate diplomat: intelligent, well-informed and an entertaining host'. Other senior members of the community in Belize praised Mr Yapp equally highly in the proceedings.
In relation to the issue of remoteness of psychiatric injury, the Court of Appeal confirmed that the absence of a pre-existing vulnerability was not decisive and that an employer's conduct might be so devastating that it was foreseeable that a person of ordinary robustness might develop a depressive illness as a result. The subsequent offer of counselling was not thought to be material in cases of this kind.
Expressing sympathy for Mr Yapp and his family, the Court of Appeal however arrived at a different conclusion from that of Cranston J and allowed the appeal of the FCO in relation to foreseeability. Therefore, although the Court of Appeal accepted that Mr Yapp’s illness was caused by the manner in which he was treated by the FCO, the finding of breach of the FCO's duty of care to Mr Yapp could not stand.
The Court of Appeal saw no merits in the FCO's appeal against the award of interest on damages at the Judgment Act rate. That appeal was dismissed without Mr Yapp being called upon to respond at the hearing of the appeal in July 2014.
Mr Yapp's Judgment against the FCO stands. His claim in respect of his unfair treatment has been upheld and he remains entitled to damages for breach of contract. His damages will be assessed by Cranston J at a later date if they cannot be agreed between the parties.
Jane McNeill QC and Katherine Howells represented the Respondent, Mr Yapp, at trial and on appeal instructed by John Kings and Hannah Hunter of Buss Murton Law LLP.
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