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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Srivatsa v Secretary of State for Health & Anor [2018] EWCA Civ 936 (26 April 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/936.html Cite as: [2018] WLR(D) 255, [2018] ICR 1660, [2018] EWCA Civ 936 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Nicol
HQ12X01519
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE KITCHIN
and
LADY JUSTICE ASPLIN
____________________
DR KADIYALI MADHAVA SRIVATSA |
Appellant |
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- and - |
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SECRETARY OF STATE FOR HEALTH |
1st Respondent |
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THE PRACTICE SURGERIES LIMITED |
2nd Respondent |
____________________
THOMAS CORDREY (DAC Beachcroft LLP) for the 1st Respondent
MUGNI ISLAM-CHOUDHURY (instructed by The Practice Surgeries Limited) for the 2nd Respondent
Hearing date : 19 April 2018
____________________
Crown Copyright ©
Lord Justice Lewison:
"JURISDICTION
6. The Claimant's Claim Form was submitted on 6 May 2011. In respect of his Public Interest Disclosure Act 1998 ("PIDA") claim, the Claimant is only entitled to complain about alleged detriments occurring on or after 7 February 2011. The [relevant] Respondent will submit that the Tribunal does not have jurisdiction to consider any alleged detriments occurring before this date and that there is no evidence of a continuing act.
7. The [relevant] Respondent contends that the Tribunal does not have jurisdiction to consider any claim for loss of the chance of earning locum income as a result of the Claimant not being included on the Performers List."
"Our client wishes to withdraw his claim and therefore we should be pleased if you will vacate Thursday's hearing."
"25. – (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one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn.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 he 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)."
"'We have received a copy of the 1st respondent's application for an order that the claim be dismissed and judgment be entered, which we received on 9 November.
We object to the order sought. Our client withdrew his claim upon the expectation that his employment claims would be concluded. His [principal] reason for doing so was the cost of pursuing his claim against 2 respondents whose pockets are very much deeper than his own. The risk of a costs order, however slight, coupled with the risk that to reach a full hearing would involve expense he simply cannot manage, caused him to withdraw. Our client was facing a barrage of technical and procedural issues.
Accordingly, our client was obliged to withdraw for economic reasons. It now appears that one of the respondents intends to pursue a costs order. If this is correct (it is not clear from their letter), then the claimant would wish to re-activate his claim rather than face a costs application."
"'Employment Judge Hall-Smith has considered the parties' recent correspondence and instructs me to write as follows:
The Judge points out that the Employment Tribunal has no jurisdiction to 're-activate' a claim which has been withdrawn. There is no such thing as "conditional withdrawal"."
"If the ET Claim has been dismissed by order of the Employment Tribunal, the Second Defendant relies on issue and/or cause of action estoppel in defence of the present claim in respect of those issues and claims pleaded and claimed in the ET claim now pursued in these proceedings."
"The Claimant had objected to the dismissal of proceedings when he withdrew his claim in 2011. This information was not known to the judge when the Judgment was made as the Tribunal file had been closed and destroyed. This information was not made known by the Respondent when requesting a dismissal judgment."
"Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order."
"Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless—
(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or
(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice."
"Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue."
"(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised."
"Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court's procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v National Westminster Bank plc [1991] 2 AC 93, 110G, "estoppel per rem judicatam, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process"." (Emphasis added)
"Further, the effect of the dismissal of the ET claim on that in the High Court is a matter for that court to determine."
"Further, I accept the submission made on behalf of the Second Respondent that the effect on High Court proceedings of dismissal of ET proceedings without a hearing on the merits is a matter for that court. Nayif was not relevant to the application before the EJ."
"The withdrawal of the claim in 2011 was unequivocal. At the time of withdrawal the Claimant did not express a wish to reserve the right to bring a further claim. Whether under the 2004 ET Rules applying the guidance in Verdin and Ako v Rothschild Asset Management [2002] IRLR 348 or under the 2013 ET Rules applying Rule 52, the only decision open to an ET considering an application for dismissal under the 2004 Rules or acting under the 2013 Rules was that the claim should be dismissed."
"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 judgment, 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."
"Far from abandoning his claim for breach of contract, Dr Sajid was, in view of the quantum of his claim, seeking to preserve his full rights, having started proceedings in the High Court for the same cause of action. He did so because of the limited nature of the jurisdiction of the employment tribunal over such claims. The order was made for the purposes of avoiding duality or multiplicity of proceedings, which would have been open to the objection of embarrassing duplicity, if they had not been determined in the way that they were by the employment tribunal. The order of 6 May was not, and could not have been, intended either by the parties or by the tribunal to constitute a final and binding determination dismissing Dr Sajid's claim. Its purpose was to enable his claim to be pursued and determined in a court which had the jurisdiction which the employment tribunal lacked."
"Although Lennon highlights the importance of the fact that an order for dismissal has been made, the decision does not preclude the application of the general principle that a court may have regard to the factual circumstances surrounding a consensual legal act (the matrix of fact) in order to understand its meaning and effect."
"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."
"The passage in the judgment of Buxton LJ is capable of being misunderstood. A person may withdraw a claim or (in litigation) consent to judgment for many different reasons. He may do so because he has accepted advice that his claim will fail; or because he cannot afford to continue; or because he wants to defer proceedings until some other avenue of resolving the matter has been explored; or because he has decided that he is not yet in a position to proceed; or that he ought to proceed before a different tribunal (as in Sajid) or add another party (as in the present case). In some cases, the reasons will indicate that the party has decided to abandon the claim. In others, not so. In relation to the question whether a dismissal following withdrawal (or a consent judgment) gives rise to a cause of action or issue estoppel, I consider that the reasons for the withdrawal or consent are not relevant, unless they shed light on the crucial issue of whether the person withdrawing the application or consenting to judgment intended thereby to abandon his claim or cause of action."
"The underlying principle is that there should be finality and matters which have been litigated, or would have been but for a party being unwilling to put them to the test, should not be reopened. But I see no justification for the principle applying in circumstances where there has been no actual adjudication of any issue and no action by a party which would justify treating him as having consented, either expressly or by implication, to having conceded the issue by choosing not to have the matter formally determined."
"by a neat, technical swipe the [Defendants] would have eliminated a substantial claim without any tribunal or court having heard any evidence or argument about it. That seems to be a decision to which this court is not driven by any principle of cause of action estoppel."
Lord Justice Kitchin:
Lady Justice Asplin: