The claimant presented a claim of race discrimination to the ET which was struck out because the claim was out of time and the EJ said that it was not just and equitable to extend time. The claimant's appeal to the EAT was dismissed. His solicitors then issued the present claim against his former employers in the Queen's Bench Division for damages for negligence and breach of the Management of Health and Safety at Work Regulations 1999. Again, the factual allegations were of harassment over the years resulting in psychiatric injury. Like the claimant in the case of Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170, he was essentially putting forward the same factual case in this court as he had before the employment tribunal. The claim was struck out, the judge holding that he was bound by the decisions of the Court of Appeal in Lennon v Birmingham City Council [2001] IRLR 826 and Sheriff v Klyne Tugs. However, the judge said that he was uneasy with the prospect of barring a claimant with an ostensibly genuine claim on a narrow procedural/jurisdictional ground which might result in a grave injustice and so gave permission to appeal to the Court of Appeal. The matter was then remitted to the QB division of the High Court.

The High Court dismissed the appeal. It was not open for the judge to depart from the proposition in Barber that "the principle of avoiding repetitious litigation is plainly a legitimate aim". The judge said that if a claimant has brought his claim before a tribunal which could have exercised a discretion to grant an extension of time and consider the case on the merits, but which declined to do so, it was entirely proportionate that the doctrine of issue estoppel should prevent him from putting essentially the same case again to a second tribunal.

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Neutral Citation Number: [2013] EHWC 3938 (QB)

Case No: QB/2013/0421

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

BEFORE:

MR JUSTICE BEAN

BETWEEN:

NAYIF (Applicant)

- and -

HIGH COMMISSION OF BRUNEI DARUSSALAM (Respondent)

MR R GLANCY QC (instructed by Messrs Grange & Castle) appeared on behalf of the Applicant

MR J JOHNSON QC (instructed by Messrs Bircham Dyson Bell) appeared on behalf of the Respondent

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MR JUSTICE BEAN:

1. In an application presented to an employment tribunal on 26 October 2011 Mr Nayif complained among other things that he had been subjected to racial discrimination at work from July 2003 until 25 June 2010 and that he had suffered psychiatric injury as a result. There were other claims which were met with the defence of State immunity, but at a pre-hearing review on 24 February 2012 these other claims were withdrawn.

1. That left the racial discrimination claim. As to that, it had been presented well outside the period of three months from the last act relied upon, but the Claimant's solicitor argued it was an appropriate case to extend time on the grounds that it was just and equitable to do so.

1. The Claimant did not give oral evidence, but submissions were made and documents presented on his behalf. The Respondent employers were represented by counsel.

1. Employment Judge Grewal, in a reserved decision promulgated on 19 March 2012, held that the discrimination claim had not been presented in time, as quite clearly it had not, and that it was not just and equitable to extend time. The reasons for her decision run to several pages. The formal judgment which accompanied them read as follows in paragraph 2:

"The Tribunal does not have jurisdiction to hear the complaint of race discrimination because it was not presented in time and the Tribunal does not consider it just and equitable to consider it. It is, therefore, dismissed."

1. The Claimant gave notice of appeal to the Employment Appeal Tribunal, but in a written decision taken under rule 3.6 on 26 June 2012 His Honour Judge Richardson held that there were no reasonable grounds for an appeal, and accordingly gave a direction under Rule 3.7 that no further action was to be taken on the appeal. No attempt was made to apply for reconsideration of that decision at an oral hearing. So that was the end of the Tribunal road for Mr Nayif.

1. On 20 December 2012 his solicitors issued the present claim against his former employers in the Queen's Bench Division for damages for negligence and breach of the Management of Health and Safety at Work Regulations 1999. Again, the factual allegations were of harassment over the years from 2003 to 2010 resulting in psychiatric injury. Like the Claimant in the case of Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170, Mr Nayif was essentially putting forward the same factual case in this court as he had before the employment tribunal.

1. On 22 February 2013 the employers served a Defence, which began by arguing that the claim was an abuse of process and should be struck out. Paragraph 1 of the Defence continued:

"The Defendant relies on the dismissal by the Employment Tribunal of the Claimant's claim for damages for compensation arising out of the same facts and matters as found the basis for the instant Claim."

1. By an application of same date the Defendant applied for the claim to be struck out. That came before Master Leslie on 13 May. He gave a decision upholding the Defendant's application and striking out the claim. He said this in paragraph 12:

"It is not an easy question. I am bound to say that I feel uneasy, as I said during the course of argument - profoundly uneasy indeed - at the prospect of barring a claimant with an ostensibly genuine claim on a narrow procedural/jurisdictional ground which might result in a grave injustice."

However, he held that he was bound by the decisions of the Court of Appeal in Lennon v Birmingham City Council [2001] IRLR 826 and Sheriff v Klyne Tugs (to which I have already referred).

1. In a document accompanying his judgment, the Master gave permission to appeal and referred the case to the Court of Appeal on the grounds that there was a point of practice and procedure of significant importance and also a point of general principle and importance in the development of the substantive law. In the box "Additional Reasons" he referred to the case of Lennon which he said "bound me to this decision about which I have considerable discomfort, although it may be distinguishable".

1. However, when the matter was considered by a single Lord Justice, Tomlinson LJ, he directed that:

"I do not consider it appropriate that the appeal should be heard in the Court of Appeal pursuant to CPR 52.14(2). I remit it to the High Court, Queen's Bench Division."

Accordingly, the appeal has come before me.

1. An officer of the Civil Appeals Office took the view that the appeal in the High Court would have to be filed out of time, so an extension of time was required. I respectfully doubt whether this is so, but Mr Johnson QC for the Respondents accepts that if an extension of time is required, it is obviously right that it should be granted; and for the avoidance of doubt, if it is needed I grant it.

1. It may be useful to begin with a question of terminology. The Defendants rely on this application on what is sometimes called res judicata and sometimes issue *estoppel. They say that Mr Nayif's claim has already been brought forward in the earlier case; that is to say the claim before the Tribunal and has been the subject of a decision of a court of competent jurisdiction. This is not a case of what is properly referred to as Henderson v Henderson* abuse of process, where a claim could and should have been brought forward in earlier proceedings but was not.

1. The two cases which the Respondents say are binding authority in favour of the striking out of this claim are Barber v Staffordshire County Council [1995] ICR 379 and Lennon v Birmingham City Council (to which I have already referred). Mrs Barber claimed a redundancy payment before the Employment Tribunal, but not at that stage unfair dismissal. She withdrew the redundancy payment claim at a hearing and the industrial tribunal dismissed that claim in 1993. Following the decision of the House of Lords in another case in 1994, she presented a second tribunal claim, this time for both a redundancy payment and unfair dismissal. The tribunal allowed her to proceed, but on appeal the Employment Appeal Tribunal and the Court of Appeal held that both claims should have been struck out. In the case of the redundancy payment claim that was because of res judicata in the form of cause of action estoppel. The unfair dismissal claim failed because of Henderson v Henderson abuse of process. The important point for present purposes is that the Court of Appeal held (following the same court's decision in SCF Finance Co Ltd v Masri (No 2) [1987] QB 1828) that the fact that the order dismissing the claim had been made on withdrawal by the Claimant made no difference.

1. Barber was followed in Lennon v Birmingham City Council. Mrs Lennon brought a sex discrimination claim before an employment tribunal alleging harassment over a long period causing a stress-related illness. Two days before the hearing for directions she sent in a letter saying she wished to withdraw her application. The tribunal chairman made an order stating that the application was dismissed on withdrawal by the applicant. Five months later she brought a county court claim for damages for negligence or breach of contract, again based on an allegation of harassment causing her to be ill and to be absent from work. The Court of Appeal affirmed the county court judge's decision striking out the claim. They said that Barber was binding authority that the dismissal of a claim on withdrawal was an adjudication. The case before them was one of true res judicata because the whole claim had already been brought forward in the employment tribunal; it was not one of abuse of process falling under Henderson v Henderson.

1. In Lennon an Article 6 argument was put forward which was dealt with trenchantly by Buxton LJ in paragraph 36 in the following terms:

"... it was faintly suggested that there might be some issue arising under Article 6 of the European Convention on Human Rights with regard to the inability now of Mrs Lennon to pursue her claim. The answer to that is that the Convention gives a right of access to a court. That is what Mrs Lennon indeed has had in her access to the employment tribunal. It gives no right to a reiterated access to a series of courts, nor does it undermine the reasonable power of the authorities of states signatory to the Convention to make rules for the conduct of litigation in a fair and economic way. There is, therefore, no point arising under the Convention at all."

1. In contrast with the decision of Lennon was Ako v Rothschild Asset Management Ltd & another [2002] ICR 899, heard by the Court of Appeal the following year. Ms Ako brought a Tribunal claim against the First Respondent for unfair dismissal and racial discrimination. She wrote in asking to withdraw it and an order was made dismissing the claim in both its aspects on withdrawal. A week later she issued essentially the same claim but this time against both Rothschild Asset Management Ltd and another company. The Court of Appeal held that cause of action estoppel did not apply where it was clear on examining the facts that the withdrawal of the first claim was intended to be a discontinuance preserving the Claimant's right to issue new proceedings. Barber and Lennon were distinguished and the Court of Appeal held that Ms Ako was not barred from bringing the second claim. Mummery LJ, in the leading judgment, observed that the Employment Tribunal Rules did not have the equivalent of the provision in the Civil Procedure Rules for discontinuance as a form of disposing of a case to be distinguished from its dismissal. He said at paragraph 30:

"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".

1. Mr Glancy QC for the appellant Claimant relies on this decision as showing that the form of the order disposing of the first claim is not necessarily determinative. He distinguishes Barber and Lennon on the basis that in the present case the employment judge held that the tribunal had no jurisdiction. He refers to Radakovitz v Abbey National plc [2010] IRLR 307. That was an appeal in an unfair dismissal case where Elias LJ said at paragraph 16:

"There is plenty of authority which confirms that time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a tribunal by agreement or waiver: see Rogers v Bodfari (Transport) [1973] IRLR 172 (NIRC), approved by the Court of Appeal in Dedman v British Building & Engineering Appliances [1973] IRLR 379."

1. Mr Glancy submits that the ratio of Barber and of Lennon is that if a claimant has a valid claim which he chooses to withdraw, he cannot then have a second bite of the cherry in another court. But Mr Nayif, he says, never presented a valid claim for racial discrimination to the employment tribunal at all. The claim which he did present was out of time and the Employment Judge held that the tribunal had no jurisdiction to consider it. It was therefore a nullity, just as much as if Mr Nayif had submitted to the employment tribunal a claim for defamation or for infringement of patent.

1. Mr Johnson for the employer says that the ratio of Barber and of Lennon is that if the employment tribunal makes an order dismissing the claim, you cannot go behind it. In Lennon at paragraph 30 Buxton LJ said:

"The doctrine [that is 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. 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."

The only exception, which derives from the decision in Ako, is where the dismissal is on withdrawal and the Claimant's true intention was not to withdraw altogether but to discontinue. In such a case what was in the Claimant's mind is relevant; but in the present case, Mr Johnson submits, the Claimant's state of mind is irrelevant. Mr Nayif wanted his claim for racial discrimination to go ahead on the merits in the Tribunal. The Employment Judge decided against the submissions of his representative that it would be just and equitable to extend to allow this to happen. The claim, Mr Johnson submits, cannot be described as a "nullity", in contrast to Mr Glancy's examples of a claim for damages for defamation or for infringement of patent.

1. In my view it is possible to consider a slightly less egregious example than Mr Glancy's of a claim over which the Employment Tribunal has no jurisdiction and never could have jurisdiction. Suppose that an employee suffers physical injury at work and alleges that this is because of the negligence or breach of statutory duty of his employer. Acting in person and knowing no better, he submits a claim for compensation to an employment tribunal. An Employment Judge decides that the employment tribunal has no jurisdiction to hear the case and an order is drawn up dismissing the claim. In my view a subsequent county court claim brought by the claimant on the same facts would not be barred, and Mr Johnson in argument was disposed to accept as much. The reason that the employment tribunal had no jurisdiction is because the subject matter of the claim was wholly outside its remit. There is no question of a time bar and no question of a discretion. The case cannot be heard in an employment tribunal any more than a defamation claim or a patent infringement claim or, indeed, a private prosecution or a divorce petition.

1. However, I do not accept that the decision of the employment tribunal in the present case is in the same category. Employment Judge Grewal decided that (as is obvious) the claim had been brought outside the primary limitation period After hearing submissions from the Claimant's representative and considering the documents placed before her, she found that it was not just and equitable to extend time. She would, it is clear, have heard oral evidence from the Claimant had his representative wished to call him. Her reasoned decision runs to several pages.

1. This is far more a substantive decision of a judge than a dismissal on withdrawal. Indeed, in some discrimination cases brought out of time employment tribunals exercise a discretion to postpone the issue of whether it would be just and equitable to extend time until the tribunal has heard evidence on the merits of the case. It would be very strange indeed if in such a case, where the employment tribunal after hearing evidence on the merits has refused to extend time, held that it therefore has no jurisdiction to consider the case and dismissed the claim, issue estoppel did not apply because of the classification of the decision as jurisdictional.

1. This is to be contrasted with the unfair dismissal jurisdiction where the escape route to avoid the time bar is much narrower, requiring the claimant to show that it was not reasonably practicable for the claim brought in time; although the Claimant may adduce evidence to show that it was not reasonably practicable to bring the claim in time, this point is invariably decided as a preliminary issue since the merits of the case have nothing to do with it. In any event, unfair dismissal is an entirely different cause of action from a common law wrongful dismissal claim, which may explain why the argument has not been run in an unfair dismissal claim.

1. Mr Glancy put forward an alternative argument based on Article 6 of the ECHR. He points to the important early decision of the Grand Chamber in Ashingdane v United Kingdom [1985] 7 EHRR 528 in which the Strasbourg court said at paragraph 57:

"Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and individuals'...Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

1. So, as Baroness Hale of Richmond observed in Seal v Chief Constable of the South Wales Police [2007] 1 WLR 1910 at paragraph 57:

"To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued."

She continued at paragraph 59:

"Even where a rational connection between the end and the means can be shown, the means still have to be proportionate to the ends."

1. Mr Glancy points out in his skeleton argument that in addition to Article 6 in the Strasbourg Convention, there is now also the parallel protection provided until Article 47 of the Charter of Fundamental Rights of the European Union which has direct effect on national law and which provides that "everyone whose rights and freedom is guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law."

1. I do not think that the ECHR Article 6 argument, even when combined with Article 47 of the EU Charter of Fundamental Rights, adds to Mr Glancy's case. As Buxton LJ said in Barber at paragraph 36, "the principle of avoiding repetitious litigation is plainly a legitimate aim". It is not open to me to depart from that proposition; indeed, Mr Glancy did not suggest that I should. And it is, in my view, a proportionate means of furthering that legitimate aim that the courts should adhere to the principle of issue estoppel. Putting it in less legalistic language, if a claimant has brought his claim before a tribunal which could have exercised a discretion to grant an extension of time and consider the case on the merits, but which declined to do so, it is entirely proportionate that the doctrine of issue estoppel should prevent him from putting essentially the same case again to a second tribunal.

1. It may be that there will be cases of great technicality where it would not be proportionate for the doctrine to be applied. Ako is an example of a very hard case where the Court of Appeal found itself able to create a solution. This case is not in my view analogous,. Master Leslie was correct to hold that he was bound by the Court of Appeal decisions in Barber and in Lennon to strike out the present claim. It follows that the appeal must be dismissed.

1. Finally, I wish to express my gratitude to both Mr Glancy and Mr Johnson for the very high quality of their oral and written submissions.