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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Okoturo v Tesco Stores Plc [2002] EWCA Civ 970 (20 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/970.html Cite as: [2002] EWCA Civ 970 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand London WC2 Thursday, 20th June 2002 |
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B e f o r e :
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EMIKO OKOTURO | Applicant | |
- v - | ||
TESCO STORES PLC | Defendant |
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Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Defendant did not attend and was unrepresented
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Crown Copyright ©
Thursday, 20th June 2002
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"... 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."
"... 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."