A3/2000/0324

Neutral Citation Number: [2001] EWCA Civ 435
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(His Honour Judge Griffiths-Jones)
								Royal Courts of Justice
								Strand
								London WC2

								Tuesday, 27th March 2001
B e f o r e:

LORD JUSTICE PILL
LORD JUSTICE MANTELL
LORD JUSTICE BUXTON
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HELEN LENNON
Appellant

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BIRMINGHAM CITY COUNCIL
Respondent
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR S HUNJAN (Instructed by Bradshaws, 3 Swann Courtyard, Coventry Road, Yardley, Birmingham B26 1BU) appeared on behalf of the Appellant

MR A GLENNIE (Instructed by Birmingham City Council, Legal Services, Ingleby House, 11-14 Cannon Street, Birmingham B2 5EN) appeared on behalf of the Respondent
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J U D G M E N T
Tuesday 27th March 2001 
J U D G M E N T
1.	LORD JUSTICE PILL: Buxton LJ will give the first judgment. 
2.	LORD JUSTICE BUXTON: This is an appeal from a decision of His Honour Judge Griffiths-Jones in the Birmingham County Court in which he dismissed, on grounds of res judicata, that is to say cause of action or issue estoppel, a claim brought in that court by Mrs Helen Lennon against her employers, the Birmingham City Council. 
3.	The matter has a long history. Mrs Lennon's employment commenced in February 1984. Over a substantial period of time she complains that she was subjected to offensive and intimidating behaviour, either by her employers or by persons for whom her employers were responsible, within the employment relationship; with the result that, amongst other things, she has suffered injury to her health. 
4.	On 28th May 1997 she issued proceedings in what was then known as the Industrial Tribunal. The complaint that she then made was described in the following terms:
“Harassment/Discrimination 
Bullying 
Vicarious liability of employer 
Health and Safety - Duty of Care.” 
5.	That application was supported by a substantial document, described as Statement of Case, at the end of which it was asserted that, because of the treatment that Mrs Lennon had received whence working for Birmingham, she had suffered a stress related illness. I have to say that it is not wholly clear to me under what part of the then jurisdiction of the Industrial Tribunal this complaint was brought; but, for reasons that will become apparent, any such doubts do not affect the outcome of this appeal. 
6.	The matter was to some extent clarified when the employers replied to the complaint, saying that they intended to resist the application and expressing themselves in the following terms: 
“The Respondent denies that it has discriminated and/or harassed the Applicant on the grounds of sex. The Respondent denies that this Tribunal has jurisdiction to deal with any other purported claim being brought by the applicant.” 
7.	The employer went on to say that the detailed complaints were being investigated, and it asked that the matter should not be proceed to a hearing until those internal inquiries had been completed. 
8.	On being made aware of that position taken by the employer, Mrs Lennon's union, who were then acting for her in this matter, wrote to the Industrial Tribunal in response to letters that they had sent expressing some concern about the progress of the matter. The union said this, inter alia: 
“(1)The application does not allege only discrimination/harassment on the grounds of sex, it includes bullying etc.” 
9.	There was then a lengthy delay whilst the internal investigation and, as it would appear, discussions and negotiations with Mrs Lennon herself proceeded. 
10.	On 27th February 1998, that is to say some nine months after the complaint had been filed, the union wrote to the Secretary of Industrial Tribunals, saying that the investigation into her grievance had been concluded but that one element required further investigation. That was a complaint of sexual harassment. That was in February 1998. Matters did not progress. Very properly, the tribunal expressed concern about the delay and eventually arranged that there should be a directions hearing. That was to be held on 27th November 1998. Before that hearing took place Mrs Lennon's solicitors, who had taken over the conduct of the matter from her union, wrote to the Secretary of Tribunals on the 25th November 1998 in the following terms, inter alia: 
“We have recently spoken to our client at length in relation to this matter and she has instructed us that she wishes to withdraw the Application to the Industrial Tribunal.
We should accordingly be grateful if the claim could be marked withdrawn and the Interlocutory/Directions Hearing listed for Friday 27 November 1998 ... could be vacated.” 
11.	In response to that the tribunal or the Chairman of the tribunal made the following order or decision on 30th November: 
“The application is dismissed on withdrawal by the applicant.” 
12.	It is important for understanding the issues in this appeal to note that it was indeed the decision of the tribunal that the application should be dismissed. 
13.	On 5th March 1999, that is to say some five months after the dismissal of the Employment Tribunal proceedings, Mrs Lennon, acting through the same solicitors as had advised her in connection with the Employment Tribunal matter, brought the present claim in the Birmingham County Court. That was substantially a claim in negligence or in breach of contract. The nature of it can be seen from three paragraphs near the start of the particulars of claim, paragraphs 3-6, which read as follows: 
“3.Prior to in or about January 1996 the said other servants or agents of the Defendants and the said Geer...”
14.	I interpose, he was a manager in Mrs Lennon's area of activity,
“...habitually behaved towards the Plaintiff in an abusive and/or unpleasant and/or offensive and/or intimidatory manner. 
4.By reason of the said behaviour the Plaintiff suffered physical and mental ill health and was caused thereby to be absent form her employment.” 
5.In or about January 1996 the Plaintiff was subjected to abusive and/or unpleasant and/or offensive and/or intimidatory behaviour by the said other servants or agents of the Defendants and the said Geer.” 
6.The said behaviour caused the Plaintiff to suffer physical and mental ill health and, by reason of it, to be absent from her employment between the 19 and 26 days of January 1996.” 
15.	That absence was described in the pleadings as “the first period of absence”. It was alleged that that illness and that absence was caused by negligence on the part of the defendants; and very lengthy particulars of negligence are given reaching to some nearly 30 paragraphs. 
16.	The claim then continues in respect of repeating such behaviour on the part of the City Council, or, rather, those for whom it was responsible, alleging further incidents leading to further periods of absence, the particulars of complaint in respect of the latter periods being substantially the same as those in respect of the first period. 
17.	Faced with this claim, the defendant City Council made an application to strike the claim out. That was described in their application in the following terms: 
“The claim be struck out pursuant to CPR 3.4(2)(b) as an abuse of process”
	and then particulars were given.
“The claimant included a claim for stress related illness in industrial tribunal proceedings which proceedings were based upon the same facts as the present case and have been dismissed. As a matter of law the claimant is thereby estopped from bringing the present claim.” 
18.	That matter was considered by Deputy District Judge Turner. He held that the county court proceedings did indeed substantially repeat those in the Employment Tribunal. But he refused to strike out the claim on grounds of res judicata because he saw the letter of the Employment Tribunal of 30th November 1998, which I have just read, not as a decision on the part of the tribunal such as would be necessary to found a claim in of res judicata, but as merely, as he put it, an acceptance of a wish to discontinue those proceedings. It is perhaps relevant to note that the matter was, as I have said, argued before him on the basis of res judicata. 
19.	The defendant appealed to the Circuit Judge, saying that the case should have been struck out on grounds of issue estoppel once the judge had made the finding that the claim repeated the proceedings in the Employment Tribunal. The claimant in resisting that appeal, or seeking to, did not challenge that finding of the Deputy District Judge, that is to say that the claim repeated the proceedings in the Employment Tribunal. Rather, the argument was that res judicata in the sense of issue estoppel could only apply when there had been an actual adjudication on the earlier claim, and that that was not the case here. That that was the argument below is apparent from the copy that we have of the skeleton argument used on that occasion. 
20.	In determining that appeal His Honour Judge Griffiths-Jones considered that he was bound by the decision of this court in the case of Barber v Staffordshire County Council [1996] 2 All.E.R. 748 (to which I shall refer as “Barber”), which demonstrated that as a decision of the court, albeit not a decision on the merits, could found an issue estoppel, the decision of the Employment Tribunal in this present case therefore could, and in the judge's determination did, found such an estoppel. The proceedings were thereby struck out. 
21.	The employer appeals to this court, maintaining, broadly, the argument that she addressed to the judge below. 
22.	It is relevant to say something first about the relationship so far as this jurisdiction is concerned between the proceedings in the Employment Tribunal and the proceedings in the County Court. That was explored in this court in Sheriff v Klyne Tuggs (Lowestoft) Limited (1999) IRLR 481. In paragraph 21 of his judgment in that case, which was the judgment of the court, Stuart-Smith LJ, in a case that was admittedly directed at racial discrimination rather than sexual discrimination, considered that both the Employment Tribunal and the County Court had jurisdiction to award damages in respect of such a claim. It therefore follows that, potentially, questions of abuse of process or res judicata could be raised as between those two tribunals. Indeed, Mr Hunjan, who has presented this case on behalf of Mrs Lennon, has not sought to argue differently. Relevantly to this appeal, Stuart‑Smith LJ said this in paragraph 23 in relation to the case before him: 
“I do not think this is a case of res judicata in the strict sense, because the cause of action is not the same in both proceedings. However, the principle applies to matters which could have been raised in previous proceedings, but were not.”
23.	He then referred to the well‑known observations of Vice Chancellor Wigram in Henderson v Henderson. Stuart-Smith LJ's conclusions were that the case fell under Henderson v Henderson because, as he said: 
“For the reasons I have already given, the appellant could have brought forward the whole of his claim for compensation in the tribunal. He did not do so.” 
24.	It will be noted in the present case that it has been found and accepted that the whole of the case was brought forward in the Employment Tribunal. That, therefore, is the basis for saying that this is a case of res judicata and not one of abuse of process falling under Henderson v Henderson. 
25.	In the case of Barber, on which the judge below based himself, the facts can be most conveniently stated by quoting from the head note in the All England Report at page 748, letter D: 
“In 1992 B was dismissed from her employment as a part-time teacher at two of the local authority's schools. She lodged a claim with the industrial tribunal seeking a redundancy payment, but did not seek compensation for unfair dismissal. In order to satisfy the relevant statutory conditions relating to the minimum hours of work per week required to support a claim, B aggregated her hours of work from the separate contracts of employment. However, before the hearing B was advised that she was not entitled to aggregate the hours under separate concurrent contracts with the same employer. B therefore elected to withdraw her claim and at the hearing in May 1993 the industrial tribunal dismissed the proceedings without hearing any evidence or argument. In May 1994, following a House of Lords decision that the relevant statutory provisions were incompatible with provisions of Community law relating to part-time workers, B presented a further application, seeking a redundancy payment and also compensation for unfair dismissal. The tribunal held that the principle of res judicata did not prevent B from proceeding with her claim. The Employment Appeal Tribunal allowed the local authority's subsequent appeal, holding that the principles of cause of action and issue estoppel applied to an application which had been withdrawn and that B was precluded from pursuing her claim for unfair dismissal by the doctrine of res judicata in the wider sense, namely that it would be an abuse of the process of the court to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings. B appealed.”
26.	This court, in a judgment delivered by Neill LJ, with which the other members of the court agreed, directed itself to what it described at page 755 C as the question of estoppel. When we turn to the argument that was advanced in that case on behalf of Mrs Barber to resist a claim in respect of estoppel, it becomes apparent that it is the same argument as Mrs Lennon seeks to maintain in this court. Neill LJ said this of it, at page 756 A: 
“The argument for Mrs Barber was that on 5 May 1993 the industrial tribunal made no relevant determination; it simply dismissed her claim by means of an administrative action or, at any rate, without any consideration of its merits. 
In my judgment, however, Mummery J was correct when he said that there was nothing in the principles of cause of action or issue estoppel which stipulated that they could only apply in cases where a tribunal has given a reasoned decision on the issues of fact and law in the previous litigation. Section 140 of the 1978 Act contains provisions which render void any agreement to preclude a person from bringing proceedings before an industrial tribunal. A tribunal has therefore to be satisfied that a withdrawal is properly made. I am satisfied that that order which was made by the Industrial Tribunal on 5th May was a judicial decision made by the Industrial Tribunal in the exercise of its powers under the 1978 Act. It was not a mere administrative act. It is true that no evidence was heard by the tribunal, but that fact does not prevent a decision operating by way of res judicata.”
27.	Neill LJ went on to quote a statement again in this court in the case of SCF Finance Co Ltd v Masri [1987] QB 1028, where this court said: 
“If a party puts forward a positive case, as the basis of asking the court to make the order which that party seeks, and then at trial declines to proceed and accepts that the claim must be dismissed, then that party must, in our view, save in exceptional circumstances, lose the right to raise again that case against the other party to those proceedings.” 
28.	This, as it seems to me, is an insuperable barrier to Mrs Lennon's claim in this case. What arguments are put against that contention? 
29.	In the skeleton argument it was urged that Barber was in fact wrongly decided, because in that case there had been no adjudication on the merits. Perhaps understandably, Mr Hunjan did not seek to maintain that argument before us. Barber, of course, binds us, as it bound the judge below, unless it can be shown to have been decided per incuriam, a contention that has not been made before us. It is true, to mention one point that Mr Hunjan mentioned to us, that in his exposition of the doctrine well‑known as the doctrine in Henderson v Henderson Vice Chancellor Wigram referred to the doctrine well‑known as the doctrine of issue estoppel as depending on “adjudication” by a court. But it seems to me that that adjudication is not, in any event, limited to a trial on the merits, as Neill LJ said in Barber. What matters is that there has been an actual decision of a competent court dismissing the process, which is what the Employment Tribunal plainly did in the ruling which I have already mentioned. 
30.	Secondly, it was argued that Barber is distinguishable from the present case because in that case the court knew the reasons for the withdrawal of the original claim. In this case, we do not know the reasons. That is, in my judgement, an incorrect argument. The doctrine 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. 
31.	Thirdly, it was argued that in fact Barber had not been a case of issue estoppel at all but one of abuse of process, and that the complaint in this case should have been made in terms of abuse of process in the wider sense rather than being argued on the basis of issue estoppel. This may well be a purely formal criticism, but it is of course one that, if correct, would undermine the basis of the judge's decision. The appellant in that respect relied on observations made about the relationship between issue estoppel and abuse of process by Auld LJ in the judgment of this court in Bradford and Bingley Building Society v Seddon Hancock and Others [1991] 1 WLR 1482. On the basis of that, it appeared to be argued that the doctrine of abuse of process and the doctrine of issue estoppel have become “blurred” -- that is the expression used in Mr Hunjan's skeleton argument -- and that it was legitimate in those circumstances to regard the Barber judgment as not having directed itself to issue estoppel but more broadly as to abuse of process. 
32.	I have to say that that contention seems to me to be completely ill-founded. Bradford was a case falling under Henderson v Henderson, as Auld LJ made apparently clear at page 485 E of his judgment. It was a Henderson v Henderson case because, for the same reason as Stuart-Smith LJ expressed in Sheriff v Klyne Tuggs, the objection in Bradford was that the plaintiff had not brought forward his whole case in the original proceedings. That made it quite different from a case such as the present, where the objection is that the plaintiff had brought his whole case forward in the original proceedings and has failed on it. It is true that Auld LJ did speak of the relationship between Henderson v Henderson and res judicata, but he did not do so in terms that assist the applicant. Indeed, at page 1490 letter F, having set out again the dictum of Vice Chancellor Wigram, Auld LJ continued: 
“In my judgment, it is important to distinguish clearly between res judicata and abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two in the courts' subsequent application of the above dictum. The former, in its cause of action estoppel form, is an absolute bar to relitigation.”
33.	It differs, therefore, from the rule in Henderson v Henderson. Auld LJ returned to this point and the distinction in his remarks at page 1490 letter D, which I do not need to quote. 
34.	Far from blurring the two concepts, or considering them together, Auld LJ distinguished them in a very clear and stark manner. It seems to me quite impossible to contend that when the Court of Appeal in Barber (a decision to which Auld LJ himself was a party) spoke in the terms that I have quoted of issue estoppel, it was really talking about abuse of process. That impression is reinforced if one reads on in the Barber judgment to the point at which the question of Mrs Barber's claim for unfair dismissal was addressed, where the court did recognise that that was an issue arising under the head of abuse of process. So the court in Barber had very clearly in mind the same distinction as Auld LJ set out in Bradford and Bingley and the reasons for it. As I have said, Barber binds us, as the judge rightly found it to bind him, and it is fatal to the pursuit of this appeal. 
35.	Two further arguments were raised on paper. I only mention them shortly. The first was that in some way the CPR had changed the position so that the court ought to look much more carefully before it consented to a claim being struck out on what might be said to be procedural or other grounds. I cannot agree with that argument. The CPR rules did not change, or purport to change, the substantive law in the area that I have addressed. But if one was looking at the practical or policy grounds -- and in my judgement it is not appropriate to do so -- it seems to me strongly more arguable that relitigation of claims that have been brought and failed is even more discouraged in the new regime than it was in the previous regime. 
36.	Secondly, 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. 
37.	I would dismiss this appeal.
38.	LORD JUSTICE MANTELL: I agree. 
39.	LORD JUSTICE PILL: I also agree. 
Order: Appeal dismissed with costs assessed by consent in the sum of £3,245.75, which includes the appropriate figure for VAT where VAT is chargeable.
(ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)