Service Provision Changes; Court of Appeal confirms that client must stay the same

October 30th, 2012 by Simon Devonshire QC

The Court of Appeal has today handed down judgement on the appeal against Slade J’s decision in Hunter –v- McCarrick  [2012]EWCA Civ 1399.   The Court of Appeal confirmed that the statutory concept of service provision change requires “the same client throughout” the change in service provider.   This was the natural consequence of the words used and there was no need to import a purposive construction in domestic legislation that did not seek to give effect to EU law; paras 37 & 38.

 The appellant had also argued that there had been a business entity (old style) transfer.   This was rejected for a number of reasons that do not really advance the jurisprudence (paras 42 to 47), but does contain one point of interest.    At the conclusion of his judgment, Elias LJ noted (para 48) that the appellant assumed that “if he could show that there was a regulation 3(1)(a) transfer, it would not matter that there had been a change in the client receiving the service”.   Whilst Elias LJ thought that this may be right, he said that the point was arguable and not covered by any authority.   He ventured the observation that “it may be that where the business is in the nature of a service provided to a particular client, the identity of the client is an essential element in description of the undertaking”, with the result that if the post transfer service was carried on for a new client, there could not be an old style transfer either.    However, according to Elias LJ that was “an argument for another day”, so watch this space.


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