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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rothschild Asset Management Ltd v Ako  EWCA Civ 236 (1 March 2002)
Cite as:  2 All ER 693,  EWCA Civ 236,  ICR 899,  ICR 543,  IRLR 348
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE LINDSAY
EMPLOYMENT APPEAL TRIBUNAL
London, WC2A 2LL
Friday 1st March 2002
B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE DYSON
| ROTHSCHILD ASSET MANAGEMENT LIMITED
|- and -
|MS KATE AKO
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Karon Monaghan (instructed by Commission for Racial Equality for the Respondent
Crown Copyright ©
Lord Justice Mummery :
"The application is dismissed on withdrawal by the applicant."
" barred by the principles of estoppel and res judicata from bringing the Second Application….."
The Employment Tribunal
"The Applicant never intended not to proceed against Rothschild Asset Management Ltd. It was at all material times her intention to replace the Originating Application which she had withdrawn with one which named both Rothschild Asset Management and the present Second Respondent."
"…did not intend, understand or know that she would not be permitted to pursue those claims further and she would not have asked for the application to be withdrawn had she known that."
The Appellant's Submissions
"30. Secondly, it was argued that Barber is distinguishable from the present case because in that case the court knew the reasons for the withdrawal of the original claim. In this case, we do not know the reasons. That is, in my judgment, an incorrect argument. The doctrine turns not on the reason why the court's decision to dismiss the claim was consented to by the party making the claim, nor on the reason why the court made the order, but on the simple fact that the order was in fact made. It is for that reason that, in the case of issue estoppel, the court will not re-enter the merits or justice of allowing the proceedings to continue, whereas in the wider jurisdiction under Henderson v. Henderson, which turns on abuse of process and not simply on a comparison of one order or another, the court may do that."
" …in the principles of cause of action or issue estoppel which stipulated that they could only apply in cases where the tribunal has given a reasoned decision on the issues of fact and law in the previous litigation": per Neill LJ at p. 397.
"Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re-opened."
" The reason why Mrs Barber withdrew her claim was because without aggregation she could not satisfy the statutory conditions relating to the minimum hours of work per week required to support her claim."
Lord Justice Dyson:
"The judgment was given by consent and the consent was given because the company claimed, and the plaintiff accepted, that there was no lending of money. In my view, that admission by the plaintiff, given to the court and founding the judgment by consent, was just as efficacious for the purpose of issue estoppel as a judicial decision by the court after argument founding a similar judgment"
"In this case, the plaintiff had the opportunity, in support of his appeal on the previous occasion, of establishing that money was lent. He chose not to establish that position. His counsel got up in court and deliberately abandoned it. So it seems to me that he loses his right of establishing that same position before another tribunal".
"In the event what happened was that the plaintiff, through his counsel, quite specifically and categorically chose to withdraw that issue from the consideration of the court on the basis that, in relation to that issue, he was bound to accept defeat and acknowledge that the case against him was unanswerable."
Lord Justice Jonathan Parker:
"…. never intended not to proceed against [the appellant]. It was at all material times her intention to replace the Originating Application which she had withdrawn with one which named both [the appellant] and [Boston Safe Deposit & Trust Co Ltd]."
"…. the doctrine [of issue estoppel] turns not on the reason why the court's decision to dismiss the claim was consented to by the party making the claim, nor on the reason why a court made the order, but on the simple fact that the order was in fact made"
was made in the context of a clear expression of an intention to abandon the claim. As Buxton LJ makes clear, where a party has expressed such an intention, the court is not concerned with the reasons which may have led him to do so. In the instant case that stage is not reached, because Ms Ako neither held nor expressed any such an intention.