B2/2006/2136 
Neutral Citation Number: [2007] EWCA Civ 258
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE SENNITT)
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 2nd March 2007
 
B E F O R E:

LORD JUSTICE LONGMORE 
 
- - - - - - -
 
ALISTAIR IRVINE WATSON RODGER
Appellant/Claimant
-v-
 
NATIONAL IT LEARNING CENTRE LIMITED 
Respondent/Defendant 
 - - - - - - -

(Computer-Aided Transcript of the Palantype Notes of 
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -

THE APPLICANT APPEARED IN PERSON
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
 
- - - - - - -
J U D G M E N T
1.	LORD JUSTICE LONGMORE:  This is an application by Mr Alistair Rodger for permission to appeal the order of HHJ Sennitt of 6th September 2006 in the Cambridge County Court.  It is an application for a second appeal, which has been refused on paper by Waller LJ.  HHJ Sennitt himself was sitting on appeal from an order of District Judge Pelly, made on 8th May August 2006, awarding Mr Rodger £400 for breach of the contract which had been made between him and the National IT Learning Centre Limited.  That contract was on its face a contract for services.  A term of the agreement was that it should commence on 3rd December 2004 and would continue until terminated by either party giving the other one week's notice in writing.  That was the basis on which District Judge Pelly awarded Mr Rodger £400.  
2.	Mr Rodger says that that is not enough and he appealed from the judgment of District Judge Pelly to HHJ Sennitt.  In the course of that appeal, he relied, firstly, on the Employment Act Regulations and, secondly, on the Commercial Agents Regulations.  I will call those the 2004 Regulations and the 1993 Regulations respectively.  HHJ Sennitt decided that Mr Rodger was not entitled to rely on the 2004 Regulations because, under the terms of his contract, he was not an employee and for that purpose His Honour relied on clause 6(2) of the Agreement which provided: 
"The Sales Representative and Principal agree and intend that the relationship between them is one of undertaking independent specialist services and specifically is not a relationship of master and servant or employer and employee. During the term the Sales Representative shall be an independent contractor and not the servant of the Principal."
3.	HHJ Sennitt also held that any reliance on the 2004 regulations and, in particular, the dispute resolution mechanisms thereunder had to be in the Employment Tribunal and not in the County Court.  Those conclusions seem to me to be clearly right and I will not grant Mr Rodger permission to appeal on that ground.
4.	The other ground, however, on which HHJ Sennitt decided the case was that Mr Rodger was not entitled to rely on the provisions of the 1993 Regulations because he was not a commercial agent as defined in those Regulations.  I do propose to give Mr Rodger permission to appeal on that ground, even though this is an application for a second appeal.  For permission to be granted for a second appeal, there has to be an important point of principle or practice or some other compelling reason for the Court of Appeal to hear it.  It does seem to me that there is an genuine point of law here as to whether Commercial Agents Regulations, the 1993 Regulations, apply to the kind of agent that Mr Rodger was.  
5.	There is a major difficulty because this was a new point taken before HHJ Sennitt in the sense that it was not pleaded nor was it the subject of adjudication by District Judge Pelly.  Mr Rodger tells me that what happened was this: he was advised that his position was governed by the Commercial Agents Regulations and he therefore, about a month before the trial, sent a copy of the Regulations to Messrs Langleys, who were the solicitors for the respondents.  He tells me further that he explained in a covering letter that the reason why he wished to rely on the Regulations was that he was a commercial agent within the terms of the Regulations and therefore the provisions about indemnity and/or compensation should apply and would mean that he was entitled to a larger sum than he had been awarded by District Judge Pelly.  In those circumstances, the respondents, according to Mr Rodger, became aware of his wish to rely on the Regulations.
6.	Mr Rodger is a litigant in person and is not as familiar as lawyers are with the necessity to plead matters on which you rely.  The next difficulty that arose is, because there were not pleadings on this matter, the respondent took the point, without any notice to Mr Rodger, he informs me, that Mr Rodger was not a commercial agent at all because the Regulations define a commercial agent in section 2 as: 
"... a self-employed intermediary who has continuing authority to negotiate the sale or purchase of goods on behalf of another ('the principal'), or to negotiate and conclude the sale or purchase of goods on behalf of and in the name of that principal..."
7.	It seems, from what I understand of the trial proceedings, that no objection was taken to Mr Rodger relying on the Commercial Agent Regulations but it was argued that he was not a commercial agent within clause 2.  He wished to assert, but he had had no previous notice of the need to do so, that he did indeed sell goods on behalf of his principal because what he was employed to do was to promote and to market, and, if possible, to create contracts, for distance learning which did involve the provision of course manuals, CDs and other computer material for potential students and he maintains that therefore he was employed or retained to sell goods on behalf of his principal.  
8.	That matter was dealt with by the judge in his judgment but in circumstances that Mr Rodger says were unsatisfactory because, having been taken by surprise, as he was, he was able during the lunchtime adjournment to rummage in his briefcase and find references to materials being supplied and being paid for as part of the contract which the students would enter into but that, when the case resumed after lunch, HHJ Sennitt proceeded straight to judgment and would not look at the material Mr Rodger had provided.  
9.	It is difficult to accept in its entirety Mr Rodger's account of the matter because the judge clearly has in the course of his judgment referred to course materials and he was aware that course materials were supplied and he says in paragraph 11 of his judgment this: 
"Of course one appreciates that a substantial part of what is supplied is course material, that is inevitable where there is provision of services for learning at long distance.  It is noted that students wishing to enter into these courses have available to them career development loans. That all seems to fit with the fact that the main and principal purpose behind these courses was to provide learning rather than goods.  Of course goods have to be supplied but they were incidental and ancillary to the provision of a learning service, and that, it seems to me, is clear from what is generally seen as being the purpose of the Respondent company and what they were trying to do with students who were entering contracts with them."
10.	I am far from saying that the judge was wrong to come to that conclusion but it does seem to me that, in a case where the service provided is in fact in the form of course materials supplied rather than a teacher or a tutor going to a student's house and instructing him, or permitting a student to come for the purposes of oral instructions, it might be said that the provision by way of sale of the course materials is not just ancillary to the provision of a service.  It clearly is a genuine part of it and it is a real question of law as to whether in those circumstances clause 2 of the 1993 Regulations would mean that Mr Rodger was a commercial agent.  It does seem to me that that is a genuine point of law that Mr Rodger, if he wishes, should be entitled to ventilate before the full court.  
11.	However, since the matter has not been pleaded, although HHJ Sennitt allowed it to be argued, I will add this: that it is essential for Mr Rodger to put down on paper and to send to the respondent the reasons why he says that he is a seller of goods and also whether he claims an entitlement under the indemnity provision of the Regulations or whether he claims an entitlement under the compensation provisions of the Regulations.  That is so that both sides and the court can know, when the time for appeal comes on, which provisions of the Commercial Agents Regulations of 1993 Mr Rodger does rely on.
Order: Application allowed. Costs to be stayed pending the resolution of the appeal. To be listed for half a day before a court of three who may include a puisne judge.  Suitable for the short warned list.