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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Association for Shooting and Conservation v. Cokayne [2007] UKEAT 0467_07_1910 (19 October 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0467_07_1910.html Cite as: [2007] UKEAT 467_7_1910, [2008] ICR 185, [2007] UKEAT 0467_07_1910 |
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At the Tribunal | |
On 12 October 2007 | |
Before
HIS HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
GMB UNION (NO 1) APPELLANT
For the Appellant |
MR NICHOLAS SIDDALL (of Counsel) Instructed by: Messrs. Hill Dickinson 50 Fountain Street Manchester M2 2AS |
For the Respondent |
MR DAVID TINKLER (of Counsel) Instructed by: Messrs. Hillyer McKeown Murlain Business Centre Union Street Chester CH1 1QP |
SUMMARY
Practice and Procedure - Estoppel or Abuse of Process
The Tribunal Chairman erred in law in holding that the cause of action in the two claims commenced by the Claimant was not the same.
Once proceedings are dismissed on withdrawal under Rule 25 a claimant in subsequent proceedings based on the same cause of action cannot avoid the consequences of the order dismissing the proceedings merely by asserting that he always intended to bring a second claim and that it is not an abuse of process to bring it. The exception to the operation of cause of action estoppel allowed in Ako v Rothschild Asset Management (2002) IRLR 348 is no longer available.
Discussion of review as a potential remedy for a claimant who has suffered injustice by the operation of Rule 25.
HIS HONOUR JUDGE RICHARDSON
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one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.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notifications) or the Tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date.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.
The appeal
Mr Cokayne's employment
The first Tribunal claim
"It would be much easier to forward the documentation I have as there are a number of issues involved."
"I applied for a tribunal a little while ago… I applied at that time as my employer had not followed required procedures when I tried to raise a grievance and I was worried that I would run out of time to make an application. However, my employer has now gone through a grievance procedure.
I therefore wish to withdraw my initial application, and will resubmit when the correct amount of time has elapsed.
I hope this is the correct procedure, and would appreciate it if you could let me know when this is done."
The second Tribunal claim
" I felt that the way Tim Russell had tried to undermine me, treated me differently from the other members of my team, spoken negatively about me behind my back, his general treatment of me and most of all the handling of my grievance and appeals meant that I could no longer have trust and confidence in BASC and so I had no option but to resign"
The Tribunal's reasons
"His claim which was presented in April 2007 certainly covers the same ground but goes on to deal with a grievance procedure extending beyond the commencement of the first claim and indeed beyond the withdrawal of the first claim and an appeal procedure thereafter which was not fully completed until 19 January 2007. Therefore in my view the new claim covers new ground which was not and could not be included in the first claim…. Accordingly I take the view that we are not dealing with identical causes of action"
"It seems to me that an employee who gives his employer an opportunity to deal with grievances is not to be deprived of his right to bring the claim if having given that opportunity the employer fails to deal with grievances satisfactorily. It is much the same as the general principles relating to constructive dismissal that an employee who delays too long after the breaches will be said to have acquiesced or affirmed the breaches and cannot then proceed with a cause of action arising out of them. But an employee who allows his employer to investigate and put things right is not to be deprived of his claim because of the delay to allow that to happen if the employer does not in fact put things right. In my view this is not an identical cause of action. It is an enlarged cause of action much of which depends on facts which occurred after the original proceedings were commenced"
The issues on appeal
Were the causes of action the same?
Abuse of process
29. …. There is, however, a procedural problem peculiar to the Employment Tribunals, which has not been mentioned in the authorities. Its importance only became apparent to me in the course of the excellent submissions of Ms Monaghan in support of this appeal. In the ordinary courts there is a significant distinction in the rules of procedure governing withdrawal of proceedings between (a) an order dismissing proceedings, which is capable creating cause of action estoppel, and (b) discontinuance of proceedings under CPR Part 38.7 (and previously, with the leave of the court, under RSC Order 21, rules 3 and 4), which does not operate as a release or extinction of a cause of action and as a bar to further proceedings: see The Ardanhu (1887) 12 App. Cas. 256 at p. 259 and Foskett on the Law and Practice of Compromise paras 15-24 and 15.25 The permission of the court is now required to make another claim against the same defendant when the claim arises out of facts, which are the same or substantially the same as those relating to a claim which has been discontinued after the defendant has filed a defence. The court would be very likely to give permission in a case such as the present. The procedural rules in the Employment Tribunal do not, however, make the same distinction or contain similar provisions. This omission may be a trap for the unwary, if the doctrine of cause of action estoppel is strictly applied. The only procedure for withdrawing an application is by an order dismissing the proceedings. There may, however, be cases in which a discontinuance of the tribunal proceedings, if that procedure were available, would be more appropriate than dismissal: Sajid is one such case, where the evident purpose of withdrawal was to put an end to the particular proceedings without releasing or discharging the cause of action on which those proceedings were based.
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. Discontinuance does not release or discharge the cause of action. It preserves the right to establish an untried claim on the merits in other proceedings. If, as I have explained, this is so in ordinary courts, it does not make any sense that the position should be more strict in its application in the less formal setting of the Employment Tribunals. Unless and until the Regulations of the Employment Tribunals are amended to deal with this point, it would be advisable for Employment Tribunals, on being notified of the withdrawal of an Originating Application, to ask the applicant for a statement of the circumstances of the decision to withdraw before deciding whether to make an order dismissing the proceedings
45 As I read the decision, the court's approach to the question of cause of action estoppel in Ako v Rothschild Asset Management Ltd reflected the ambiguous nature of an order in the Employment Tribunal at that time dismissing a claim. It is not authority for the general proposition that a person who seeks to pursue proceedings based on a cause of action which has been the subject of a judgment in former proceedings can subsequently delve into the circumstances surrounding the former judgment with a view to persuading the court that he did not intend to abandon his right to take further proceedings on the basis of it. That would be inconsistent with the observations of Lord Keith in Arnold v National Westminster Bank Plc and contrary to the principles underlying cause of action estoppel which, as this court held in Barber v Staffordshire County Council, depends on the existence of a judgment rather than a decision on the merits, much less the circumstances in which it came to be entered.
46 Since those cases were decided a new set of rules, the Employment Tribunals Rules of Procedure 2004, has been introduced governing proceedings in the Employment Tribunal. Rule 25(1) of those rules allows a claimant to withdraw all or part of his claim at any time and the withdrawal takes effect when the Employment Tribunal Office (in the case of a written withdrawal) or the tribunal itself (in the case of an oral notification) receives notice of it. No further order is required to make the withdrawal effective, but the respondent may apply for an order dismissing the proceedings against him and the rules expressly provide that, if such an application is granted and the proceedings are dismissed, those proceedings cannot be continued by the claimant. It would seem, therefore, that the lacuna in the previous rules identified by Mummery L.J. in Ako v Rothschild Asset Management Ltd has now been made good. That was the thrust of the decision of His Honour Judge Richardson in the Employment Appeal Tribunal in Verdin v Harrods Ltd [2005] UKEAT 0538, [2006] IRLR 339 with which I would respectfully agree. Accordingly, claimants should no longer assume that if they allow an order to be made dismissing the claim they can prevent a cause of action estoppel arising by making it clear that they intend to pursue a claim elsewhere.
72 …. 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.
39. So a party who receives a notification of withdrawal of the whole proceedings, and wishes to establish once and for all that there is to be no further litigation on the same questions, may apply for dismissal. The subsequent hearing will then concentrate on the question, which Mummery LJ identified in Ako. Is the withdrawing party intending to abandon the claim? If the withdrawing party is intending to resurrect the claim in fresh proceedings, would it be an abuse of the process to allow that to occur? If the answer to either of these questions is yes, then it will be just to dismiss the proceedings. If the answer to both these questions is no, it will be unjust to dismiss the proceedings.
40. I agree with a submission made by Mr Nicholls, that where one party withdraws the other party will generally be entitled to have the proceedings dismissed. This is because the party who withdraws will generally have no intention of resurrecting the claim again, or if he does will generally have no good reason for doing so. There is sometimes a temptation for a litigant, as the day of battle approaches, to withdraw a claim in the hope of being better prepared on another occasion. That will be unacceptable. Tribunals will be no doubt be astute to prevent withdrawal being used as an impermissible substitute for an application for adjournment. Occasionally, however, there will be good reason for withdrawing and bringing a claim in a different way."