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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Silva-Douglas v. London School of Economics and Political Science [2007] UKEAT 0075_07_1804 (18 April 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0075_07_1804.html Cite as: [2007] UKEAT 75_7_1804, [2007] UKEAT 0075_07_1804 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE REID QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR J SYKES (Representative) |
For the Respondent | MR S CATHERWOOD (of Counsel) Instructed by: Messrs Pinsent Masons Solicitors Citypoint 1 Ropemaker Street London EC2Y 9AH |
SUMMARY
Practice and Procedure – Withdrawal
Appellant withdraw his application to the ET and then sought to withdraw his withdrawal. Could he do so?
HIS HONOUR JUDGE REID QC
"We write to inform you that we withdrawn the above Claim and ask that you vacate the Judicial Mediation CMD hearing, which is to be held at Victory House, on Wednesday 29th and Thursday, 30th November 2006 at 09.30 am."
"WITHDRAWAL OF CLAIM
Employment Tribunals Rules of Procedure
Thank you for your letter informing the tribunal that you are withdrawing your claim against the respondent, namely London School of Economics and Political Science.
The hearing listed for 29 & 30 November 2006 has been cancelled.
Your file has been closed and will be retained in archive for one year after which time it will be destroyed."
That letter appears to have been sent by post to each side.
The second letter had said this:
"VERY URGENT
Amended letter
We write to inform you that we have withdrawn from the above Claims. The Claimant will represent himself at the Judicial Mediation."
"25 Right to withdraw proceedings
(1) A claimant may withdraw all or part of his claim at any time - this may be done either orally at a hearing or in writing in accordance with paragraph (2).
(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.
(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the Tribunal(in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.
(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).
(5) The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so."
70. "In the first place, in my judgment, the ET is a creature of Statute and its procedure is specifically governed by the 2004 Regulations. It is much used by litigants in person. Its procedures are governed by what is meant to be an informal, but clearly understood code. Thus, whilst at first blush, and particularly given the tight time-limits for instituting proceedings, it might seem sensible to have a procedure by means of which a litigant who had mistakenly withdrawn a claim should be allowed to revive it, I am satisfied that, for such a procedure to exist, it would need to be set out expressly in the rules. I therefore regard the absence of any such express provision in the rules as important.
71. The point is, I think, emphasised by the draft rule which Miss Sen Gupta found on the DTI web-site. Had that rule been promulgated, she would have been on strong ground. But it was not.
72. Secondly, whilst none of the authorities cited to us is directly in point, their thrust seems to me strongly to support the proposition formulated by Moore-Bick LJ in paragraph 46 of his judgment in Fraser that the lacuna in the rules identified by Mummery LJ in Ako has now been made good. This is also, I think, the basis of Judge Richardson's reasoning in the extracts from his decision in Verdin which I have set out in paragraph 44 of this judgment, and with which I agree. I have less difficulty than Rimer J, despite the clumsy wording of rule 25(4), in reaching that conclusion.
73. Thirdly, it seems to me that the construction of the rule favoured by the ET Chairman and the judge is consistent with the CPR, and maintains the well-established distinction between a claim which has been withdrawn, but on which there is no judicial determination, and a claim which has been dismissed by means of a judicial act. The first does not, of itself, create either issue or cause of action estoppel: the latter does. Thus, if respondents to a claim in the ET wish to secure their position, they must apply to the ET for the claims against them to be dismissed. If they do not, they have the possibility that the claimant may bring a second claim on the same facts.
74. For the reason given in paragraph 70 above, I am unable to accept Miss Sen Gupta's submission that, as a matter of law, no order is required to enable a claimant to revive a withdrawn claim. Miss Sen Gupta herself, I think, recognised the weakness of her argument on this point, but felt compelled to advance it, since it followed logically if her primary submission (that withdrawn proceedings were dormant rather than "brought to an end") was correct. For the reasons I have attempted to give, however, I agree with the Chairman of the Tribunal and the judge that the words "brought to an end" mean what they say. Those particular proceedings have indeed been brought to an end, and cannot be revived against a respondent. That does not mean, however, that absent dismissal, a fresh claim on the same facts cannot be made.
75. I am equally unable to accept Miss Sen Gupta's alternative proposition that other rules in the 2004 Regulations enable the ET to permit a claimant to revive a withdrawn claim. I take this view for two reasons which are additional to the proposition that the rules themselves made no specific provision for the revival of a withdrawn claim.
76. Firstly, it seems to me that such an order is not within the concept of case management or the "General Power to manage proceedings" conferred by Rule 10 of Schedule 1 to the 2004 Regulations. I do not think it necessary to illustrate this point by reference to any of the specific examples of the orders which may be made under rule 10(1) as set out in rule 10(2). Secondly, I accept Mr. McCluggage's submission that the words "Subject to the following rules" with which rule 10(1) begins are significant, and that the reasoning of this court in Vinos v Marks & Spencer applies. It is also noteworthy that each section of the 2004 Rules is separated from its neighbours by specific sub-headings. Rule 25 is headed "Withdrawal of Proceedings", and is the only rule under that heading.
77. Finally, I am satisfied, for the reasons set out in paragraph 66 that the construction favoured by Mr. Brain and the judge will not cause injustice to claimants who have good reasons for seeking to withdraw a particular claim and to bring another on the same facts. Indeed, and for the reasons put forward by Mr. McCluggage, I regard this process as more in keeping with the over-riding objective than the procedure for which Miss Sen Gupta argues.
78. Whilst, therefore, I agree with the judge that the drafting of rule 25 is "lamentable", and that it is ambiguous, I am satisfied that there was no error of law in the decision of the Tribunal Chairman, and I would dismiss this appeal. In so far as it is necessary to do so, I would also refuse Dr. Khan's application for permission to appeal against the order for costs made by the Chairman.
Footnotes
79. Although I have reached a clear view on the meaning of rule 25, it would, in my judgment, nonetheless be sensible, when the Rules are next revised, for the relevant body to reconsider it, and on the assumption that its intended meaning is that found by the Tribunal Chairman, so to amend it as to remove its current ambiguity. "
Paragraph 79 is a footnote to the judgment, this being a judgment in which Lady Justice Smith and Lord Justice Brooke concurred with Lord Justice Wall.