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Cite as: [2002] EWCA Civ 970

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Neutral Citation Number: [2002] EWCA Civ 970


Royal Courts of Justice
London WC2

Thursday, 20th June 2002

B e f o r e :


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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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The Applicant appeared in person
The Defendant did not attend and was unrepresented



Crown Copyright ©

    Thursday, 20th June 2002

  1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, His Honour Judge Peter Clark presiding, dated 4th December 2001, the judgment having been sent to the parties on 19th December. The appellant seeks permission to appeal against that judgment and also an extension of time. The notice of appeal was received in the office on 3rd April 2002 which was very considerably out of time.
  2. The applicant, Mr Odoturo, commenced employment with Tesco Stores Plc at their Hammersmith Brook Green store on 25th September 1995. The relevant history can conveniently be taken from the decision of the EAT to which I have referred, beginning at paragraph 2.
  3. "On 27 July 1999 [the applicant] presented a complaint to London (North), now Central, Employment Tribunal, case No.6004566/99. He raised a number of claims, in particular, victimisation contrary to section 2 of the Race Relations Act 1976, unauthorised deductions from wages and for holiday pay.
    3. On 29 August 1999 the applicant withdrew the first complaint and it was then dismissed by order of the tribunal on withdrawal.
    4. He then brought proceedings against the respondent [Tesco Stores Plc] in the Wandsworth County Court, raising, among other claims, those identified above in the first complaint. The County Court proceedings were struck out by order of Deputy District Judge Crick on 8 December 1999.
    5. Meanwhile on 20 October 1999 the applicant terminated his employment with the respondent, alleging that he had been constructively dismissed. He then presented a second complaint to the tribunal on 1 December 1999, case No.22201334/99, raising some new and some old causes of action. The new causes of action included unfair dismissal and wrongful dismissal; the old causes of action included those identified above, raised in the first complaint and in the County Court proceedings later struck out.
    6. On 25 February 2000 a tribunal chaired by Miss A M Lewzey considered, as one of two preliminary issues, whether the claims of victimisation and the claim for holiday pay, EAT/344/00 unauthorised deductions from wages were frivolous and vexatious and ought to be struck out under Rule 13(2)(e) of the then Employment Tribunal Rules of Procedure 1993.
    7. By decision with extended reasons promulgated on 16 March 2000 those claims were struck out on the grounds that they had been dismissed on withdrawal of the first complaint and the applicant was barred from raising them in the second complaint, applying the approach of the Court of Appeal in Barber v Staffordshire County Council 1996 IRLR 209."
  4. Mr Odoturo has appeared in person this afternoon; he has submitted written grounds of appeal. He makes the main submission, however, that his case should be referred to the European Court of Human Rights at Strasbourg. He has orally submitted this afternoon that English judges are not prepared or not familiar with dealing with a point raised under Article 6 of the Convention. He has referred to the long history of English law and the weight of precedent. He submits that the European Court of Human Rights should have the opportunity to consider the point which he has raised which is essentially that he has not been permitted in his second application to pursue matters which he had claimed in his first application which was withdrawn by him.
  5. The written grounds invite the court to deal with the matter in chambers, though in the event the applicant has decided to appear before the court and has courteously and forcefully made oral submissions. He refers to the fact that in his submission the res judicata issue was rigidly applied in accordance with laid down procedures in Barber v Staffordshire County Council. He said:
  6. "My argument is simply that the manner in which the Barber principle was applied in my case infringes my right to access to the court and a fair hearing since the Barber precedent prevents me from relitigation under any special circumstances... I ask that my case be referred to ECHR on a preliminary point without the need of an appeal for hearing on an issue that matters raised are within the ECHR jurisdiction for determination and that the Court of Appeal is not likely to reverse EAT decision in this respect on current legal conditions and jurisprudence."
  7. An extension of time is also sought, though no reasons are given for the delay. The applicant has told me this afternoon that there were delays in the delivery of the judgment to him. However, while there is some force in that in that the judgment was, on the face of it, stated to have been delivered to the parties 15 days before it was delivered, that delay of two weeks or so does not begin to justify the fact that over three months had elapsed between the sending of the judgment and the receipt in the court office of the present application.
  8. Mr Okoturo has raised the further point this afternoon that since the decision of the EAT this court in Ako v Rothschild Asset Management Ltd and Another The Times 2nd April 2002, has considerably diminished the effect of the Barber decision. Mr Okoturo has referred me to the transcript. I do propose to resolve the application. I would not refer this case to the European Court of Human Rights even if I had power to do so. As I have pointed out to the applicant, by virtue of the Human Rights Act 1998 Article 6 is, in effect, a part of the law of England. Courts have a duty to have regard to its principles and to approach even basic questions afresh. The court must ensure that fair hearings are provided in lower courts. Very frequently issues are raised and considered in this court upon allegations made under Article 6. The applicant points out that in Ako Mummery LJ expressed the view that he did not find it necessary to express a concluded view on submissions under Article 6 of the Convention of Human Rights Act 1998. I will bear in mind the provisions of that Article in the approach I take to the application made.
  9. It is right to say that the case of Ako does distinguish and place in a different light the earlier decisions of this court in Barber and in Lennon v Birmingham City Council 2001 IRLR 826. The question which arises is as to the circumstances in which an applicant is not permitted to raise matters which have been the subject of earlier proceedings. In his introduction to his judgment in Ako, Mummery LJ stated:
  10. "The principle of cause of action estoppel has presented problems for Employment Tribunals in cases in which the initial originating application is withdrawn before a full hearing on the merits and the complainant subsequently attempts to pursue fresh proceedings based on substantially the same facts against the same party. It is desirable for the law to strike a sensible balance between (a) the application of principle of finality in legal proceedings and (b) the public interest in full and fair public hearings of grievances in the relatively informal setting of tribunal procedures. The facts of this case shine a spotlight on the glaring injustices which could arise from the mechanical application of cause of action estoppel to all cases in which proceedings are withdrawn from the tribunal."
  11. It appears to me that even though Mummery LJ was not prepared expressly to consider Article 6 the manner in which he expressed the principle to be applied does comply with the requirements of that Article. The applicant has referred me to a passage in the judgment of Mummery LJ at paragraph 27:
  12. "In my judgment neither Barber nor Lennon is authority for the proposition that it is never permissible to have regard to the circumstances surrounding a consent order in order to determine the extent of the consent given to the making of the order and the extent of the estoppel arising from it...
    30. In my judgment, the reasoning in Barber and Lennon does not require that cause of action estoppel, as applied in the ordinary courts, should apply to Employment Tribunal cases where it is clear, on an examination of the surrounding circumstances, that the withdrawal of the application is in substance a discontinuance of the proceedings."
  13. Dyson LJ stated at paragraph 41:
  14. "In my view, what emerges from these authorities is that there is no inflexible rule to the effect that a withdrawal or judgment by consent invariably gives rise to a cause of action or issue estoppel. If it is clear that the party withdrawing is not intending to abandon the claim or issue that is being withdrawn, then he or she will not be barred from raising the point in subsequent proceedings unless it would be an abuse of process to permit that to occur. On the facts of the present case, it is clear the Ms Ako did not intend to abandon her claim. Nor would it be unjust or unfair as between the parties to permit her to start again: no abuse of process is involved here."
  15. It is right to point out that in Ako the Employment Tribunal had found as recorded at paragraph 10:
  16. "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."
  17. That was an explanation for the decision not to proceed which plainly the court regarded as important.
  18. I have invited the applicant to address the court on the circumstances surrounding the earlier withdrawal. These are set out in writing and repetitively so. I say that not in criticism but to underline the number of times which in his written submissions he makes this point. In relation to the last sentence of Dyson LJ's argument, I do refer to the fact that there is in the bundle of documents supplied by the applicant a letter from the proposed respondents who do object to what they regard as a repetition of earlier complaints.
  19. What the applicant says is that he withdrew the earlier application because the Employment Tribunal had not served his originating application on the proposed respondent within five days. It has been suggested that the service was delayed in order to assist the proposed respondent to escape justice. It is claimed that those respondents had taken advantage of the delay and paid at least some of the holiday pay claimed by the applicant. I refer to a letter of 16th January 2000:
  20. "As a result of Mr J Higgins' prejudicial actions the Applicant submits that he has not been given the opportunity to have a proper hearing to air his justified complaints. The Respondents were able to make some emergency payment on the 10th September 1999 in order to reduce the criticisms they would receive as a result of an Employment Tribunal judgment against them."
  21. Later:
  22. "The Applicant did not have any hearing to determine the evidence he has to prove his claim because of Mr J Higgins' responsibility in delaying the administration of justice which constitutes a perversion of justice which would have made any such hearing unfair in the judgment."
  23. Following page:
  24. "The plea of res judicata does not apply here because the Applicant received no hearing of his case (reference to the case of Barber) and also because the case was withdrawn by the Applicant from the Employment Tribunal because of Mr J Higgins' illegal prejudicial actions already discussed which gave a cause of concern to the Applicant's right to a fair hearing which had been undermined by Mr J Higgins' prejudicial action."
  25. That point is repeated in other letters. 25th January 2000:
  26. "... denied justice due to Mr Higgins' misconduct of public office by his failure to serve Notice Originating Application to Respondents within five day time limit specified by Employment Tribunal rules which are legally binding."
  27. Later in the letter:
  28. "... the Applicant's previous cancelled application was not judicially considered if Mr Higgins undermines the process by his 'misconduct in public office'. So res judicata does not apply."
  29. That is sufficient reference to the very full written submissions which the applicant has made to demonstrate the concern which he has expressed. I do not consider it arguable that the reason given justifies the conduct of the applicant in this case in not pursuing his earlier claim and at a later stage seeking to resurrect the same causes of action. I have referred to the factor which was an important one in Ako. I accept of course the principles stated in Ako. It is open to the court to conduct an examination of the circumstances in which the earlier claim was not pursued. In Mrs Ako's case there was a good and clear reason for the view that she took and it would have been an injustice not to allow her to begin a fresh action. That situation does not in my judgment arguably apply in the present case. I can see no grounds upon which an alleged delay in serving an originating application by the ET can defeat the principle of finality which is an important part of providing justice and to which Mummery LJ drew attention in the introduction to his judgment in Ako. As Mummery LJ pointed out the law must strike a sensible balance between the application of finality in legal proceedings and the public interest in full and fair hearings of grievances in the relatively informal setting of tribunal procedures.
  30. In my judgment the applicant has produced nothing in the documents to which I have referred to show that it is arguable that he does suffer an injustice by reason of the application of the principle in Barber and in Lennon when the reason on which he relied for failing to pursue his earlier application to the Employment Tribunal was the one which he gave. That is a wholly inadequate basis upon which to withdraw the application if it was later going to be sought to resurrect it. If there was late service of the originating application it would not have affected the fairness of the trial before the Employment Tribunal. There is no basis upon which it could be suggested that any delay in serving the originating application would have prejudiced the position of the applicant at the hearing. If that was his reason for not pursuing his claims at that stage it was not a reason which entitles him to take the course which he has sought to take before the Employment Tribunal and on appeal of pursuing the same causes of action on a second occasion.
  31. I have throughout borne in mind Article 6. There is nothing inconsistent in my judgment between the right to a fair hearing and the wish of the court in appropriate circumstances to prevent repetitious proceedings. The applicant had his opportunity to make a case before an employment tribunal; he resolved not to do so. Unlike the case of Ako there was no reason for that which leaves it open to him to commence a fresh action against employers, whose position also has to be considered in any fair procedure, and to allow a further claim to be brought.
  32. I would refuse the application for those reasons. I have to add that I would also refuse the extension of time and on that ground alone the application would fail. It is important in the interests of justice and in fairness to other parties that proceedings are promptly brought. Time limits are provided. Where there is a good reason for delay then the court may in its discretion grant an extension of time. No good reason has been suggested to the court in this case and I would have also refused the application on that ground.
  33. (Application refused; no order for costs).

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