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	England and Wales Court of Appeal (Civil Division) Decisions
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] ICR 1660, [2018] WLR(D) 255, [2018] EWCA Civ 936

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Nicol
HQ12X01519

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 April 2018

Lord Justice Lewison:

1. The issue on this appeal is whether Dr Srivatsa is entitled to prosecute an action in the High Court against his former employers. The Respondents say that he is not, because before the action began he had issued and then withdrawn proceedings in the Employment Tribunal ("the ET") which were formally dismissed after the action had begun. Nicol J agreed with them. His judgment is at [2016] EWHC 2916 (QB). I can take the essential facts from the judge's judgment.
2. Dr Srivatsa is a General Practitioner. He began working for a practice known as The Surgery in College Road, Woking in 2004. His employer at that time was Surrey Primary Health Care Trust, or the part of the PCT known as Surrey Community Health. On 31 March 2013 Primary Care Trusts were abolished and their liabilities were taken over by the Secretary of State for Health. On 1 May 2011, the Practice Surgeries Ltd was awarded the contract by the Primary Care Trust to run the surgery and the GP service was transferred to it from the Primary Care Trust.
3. On 3 May 2011 Dr Srivatsa issued proceedings in the ET. Both Surrey Community Health and the Practice Surgeries Ltd were named as respondents. Dr Srivatsa alleged unlawful discrimination, breach of contract, detriment for making protected disclosures, constructive unfair dismissal and arrears of pay. The disclosures on which he relied all took place before January 2009. The last specified instance of detriment that he alleged was his removal from the Performer's Group List on 16 August 2010. Both respondents filed responses to the claim on 7 June 2011 on form ET3. In each ET3 the respondents pleaded:

"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."

4. On 25 October 2011, shortly before the first listed hearing, Dr Srivatsa's solicitors wrote to the ET by e-mail. They said:

"Our client wishes to withdraw his claim and therefore we should be pleased if you will vacate Thursday's hearing."

5. On 26 October 2011 the ET acknowledged receipt of the email. It said that the claim had been withdrawn and the file had been closed. Dr Srivatsa's solicitors were told that the file would be retained for a year and then destroyed.
6. At the time of the withdrawal the prevailing ET Rules of Procedure were those in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 ("the 2004 Rules"). Rule 25 of the 2004 Rules provided:

"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)."

7. On 7 November 2011, Surrey Community Health's solicitors applied for the claim to be dismissed. They also indicated that they might seek a costs order against Dr Srivatsa. His solicitors replied:

"'We have received a copy of the 1^st 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."

8. Following an objection to reactivation, the ET wrote to Dr Srivatsa's solicitors on 15 December 2011. The letter said:

"'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"."

9. Dr Srivatsa began his High Court action on 18 April 2012. At that stage there was just one defendant, Surrey Community Health, which had been one of the two respondents in the ET. The claim was for breach of contract and damages for tortious conspiracy. At the time that the action was begun his claim in the ET had been withdrawn but not dismissed, although an application for dismissal had been made.
10. The underlying facts pleaded were to all intents the same as those which had been relied on in the ET claim.
11. On 24 March 2014 Master Yoxall made a number of orders by consent. The Practice Surgeries Ltd was added as Second Defendant. The Secretary of State for Health was substituted as the First Defendant. Dr Srivatsa was given permission to amend his Particulars of Claim. A timetable was set for the Secretary of State to amend his defence (which he did on 23 May 2014) and for The Practice Surgeries Ltd to file its defence.
12. In its defence, pleaded on 9 June 2014, The Practice Surgeries Ltd pleaded:

"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."

13. It will be noted that the plea of estoppel was a conditional one. In fact at the date of the pleading the ET claim had not been dismissed, but the application for dismissal was pending, despite the fact that it had been made some two and a half years earlier. The Secretary of State's solicitors wrote to the ET on 16 September 2014 drawing attention to the fact there appeared to have been no decision on its application for the claim in the ET to be dismissed. Since the ET had said back in October 2011 that the file would be destroyed after one year, it was entirely foreseeable that the ET would not have the relevant paperwork. However, the letter did enclose the ET1 and also Dr Srivatsa's solicitors' e-mail of 14 November setting out their objections to dismissal.
14. On 13 October 2014 EJ Martin ordered that the ET proceedings should be dismissed 'following a withdrawal of the claim by the claimant'. No further reasons were given for that decision. That decision was sent to the Secretary of State's solicitors on 21 October 2014. The Tribunal did not also send a copy to Dr Srivatsa or to The Practice Surgeries Ltd. However, the Secretary of State's solicitors did send a copy of EJ Martin's decision to Dr Srivatsa on 24 October 2014. Dr Srivatsa did not appeal against that decision.
15. On 12 February 2015 Dr Srivatsa's solicitors wrote to the ET asking for the decision of EJ Martin of the previous October to be reconsidered.
16. On 5 March 2015 EJ Martin extended time for Dr Srivatsa to apply for reconsideration of her earlier decision and revoked that earlier decision. She said:

"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."

17. The Defendants then both applied to EJ Martin to reconsider that decision of 5 March. On 30 March 2015 the Tribunal notified the parties that EJ Martin refused to reconsider her decision of 5 March. The Defendants then appealed to the EAT against the decisions of EJ Martin of 5 March and 30 March 2015.
18. Slade J heard and allowed the appeal in the EAT in February 2016, thus reinstating the order for dismissal of the ET proceedings. There has been no appeal against her decision.
19. Between the time that Dr Srivatsa withdrew his claim in the ET and the application for dismissal on the one hand, and the date of the decision to dismiss on the other the procedural rules had changed. The Employment Tribunals (Constitution and Rules Procedure) Regulations 2013 Schedule 1 ("the 2013 Rules") applied to the proceedings from 29 July 2013. Although it might well have been argued that in consequence of rule 25 (3) of the 2004 Rules bringing "the proceedings" to an end, there were no "proceedings" to which the 2013 Rules applied, Slade J held at [27] that the 2013 Rules applied to the decisions under appeal to the EAT. Rule 51 of the 2013 Rules provides:

"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."

20. Rule 52 provides:

"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."

21. It will be seen that the 2013 Rules envisage that the claimant will express a wish to reserve the right to bring a further claim at the time of withdrawal. This was not a requirement of the 2004 Rules.
22. Slade J identified a number of procedural errors in the application for reconsideration which, she held, had been made under the 2013 Rules. Those procedural errors led her to the conclusion at [48] that the order revoking the dismissal was unsustainable and would be set aside. The consequence of that decision was that the dismissal order stood, as she pointed out at [49]. Although Slade J dealt with a number of other arguments, in the light of her conclusion at [48] and [49] they were not necessary to her decision. I will, however, come back to some further aspects of her decision in due course.
23. What came before the judge was the preliminary issue whether Dr Srivatsa's High Court claim was precluded by estoppel. He held that Dr Srivatsa's withdrawal of his ET claim amounted to an abandonment of his underlying complaints for all purposes and in all fora. He reached that conclusion both because he held that Slade J had so decided in the EAT in a way that itself amounted to an issue estoppel between the parties; and also because that was his independent conclusion. Having reached that conclusion he decided that the principles of res judicata and specifically those of issue estoppel precluded Dr Srivatsa from continuing his claim. He rejected the argument that the Defendants had not acted promptly in raising that defence. He also rejected the argument that it made any difference that the High Court action was begun some years before the ET claim was dismissed; and he rejected the argument that to prevent Dr Srivatsa from pursuing his claim would be a disproportionate interference with his right of access to a court under article 6 of the European Convention on Human Rights.
24. The leading case on the various kinds of estoppel that arise out of legal proceedings is now the decision of the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160. That was a case of alleged patent infringement which had been the subject of a full trial and an appeal to this court. The result of those proceedings was a judgment that the patent was valid and had been infringed; and an order for an inquiry into damages which, if proceeded with, was likely to result in a very substantial recovery. However, after the conclusion of the proceedings in this court the Technical Board of Appeal in the European Patent Office decided that all the claims that had been held to have been infringed were invalid. The patent was deemed to have been retrospectively amended, and never to have existed in the form considered by this court. The question was whether the decision of this court was still binding on the parties. Lord Sumption reviewed the law at some length beginning at [17]. He pointed out that the policy underlying all the various principles was "the general procedural rule against abusive proceedings". At [20] to [22] he considered the decision of the House of Lords in Arnold v National Westminster Bank plc [1991] 2 AC 93. At [20] he quoted with approval Lord Keith's description of issue estoppel:

"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."

25. Lord Sumption considered that Arnold was authority for the following propositions:

"(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."

26. However, he went on to say at [25]:

"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)

27. That, to my mind, is the key principle. In Virgin itself the species of estoppel under consideration was cause of action estoppel, yet the decision of the Supreme Court was that Zodiac was permitted to rely on the retrospective amendment of the patent in order to defeat the claim for damages. That is a clear example of the qualification of the absolute character of cause of action estoppel where the conduct was not abusive. Importantly in our case, neither Mr Cordrey nor Mr Islam-Choudhury suggested that Dr Srivatsa's conduct was abusive.
28. Nevertheless it is another important feature of the case that Dr Srivatsa withdrew his proceedings in the ET. That withdrawal was considered by Slade J in the EAT. The Defendants argue (and the judge accepted) that the decision on that question itself created an issue estoppel. First, however, it is necessary to discuss what she actually decided on that point.
29. One of the points argued on Dr Srivatsa's behalf in the EAT was that in considering whether to dismiss the ET claims under the 2013 Rules, the ET ought to have considered the effect of the dismissal on the High Court action. Slade J rejected that argument. She dealt with this point in a number of places. At [65] she said:

"Further, the effect of the dismissal of the ET claim on that in the High Court is a matter for that court to determine."

30. In her decision to refuse reconsideration of the revocation of the dismissal order EJ Martin had referred to the decision of this court in Nayif v The High Commission of Brunei Darussalam [2014] EWCA Civ 1521, [2015] ICR 517. At [70] Slade J said:

"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."

31. Slade J's refusal to consider the impact of the withdrawal on the High Court proceedings and her concentration on the ET proceedings means, in my judgment, that her decision must be read in that context. At [61] she said that:

"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."

32. However, in the context in which she excluded all reference to the High Court action, it seems to me that her reference to "the claim" which was unequivocally withdrawn can only be properly understood as referring to the claim in the ET. That, in my judgment, is reinforced by a consideration of the rules in force at the time of the withdrawal. The consequence of a withdrawal under rule 25 (3) is that "proceedings are brought to an end". The proceedings referred to in that rule can only be the ET claim that has been made. If there is a subsequent dismissal, the effect of the dismissal under rule 25 (4) is that "those proceedings cannot be continued by the claimant". Those proceedings must again refer only to the proceedings that have been withdrawn. The rule thus says nothing about any other proceedings. Moreover it is not competent for rules regulating procedure in the ET to prescribe the consequences in the High Court. If, therefore, one is trying to understand what "claim" or "further claim" was under discussion in Slade J's judgment it can only have been a claim in the ET. I do not, therefore, consider that Slade J decided that the withdrawal of the ET claim amounted to an abandonment of the underlying complaints for all purposes and in all fora. Had she thought otherwise she would not have made the observations in [65] (quoted above).
33. But even if she did so decide, that part of her decision was not necessary to the outcome of the appeal. She had already decided to allow the appeal against the revocation order on other independent grounds. As the quotation from Lord Keith and Lord Sumption's summary of principle both show, it is only where an issue is a necessary ingredient of the cause of action that issue estoppel arises. That is not this case. I consider, therefore, that there was no issue estoppel created by Slade J's decision on the question of abandonment.
34. I consider, therefore, that we are free to look at the matter afresh.
35. A number of cases have considered the impact of the withdrawal or dismissal of proceedings where there has been no adjudication on the merits, with different shades of emphasis. In Khan v Heywood & Middleton PCT [2006] EWCA Civ 1087, [2006] IRLR 793 this court held that a withdrawal (as opposed to a dismissal) of a claim in the ET was in substance a discontinuance which did not bar the bringing of a second claim in the ET covering the same ground.
36. In Staffordshire CC v Barber [1996] ICR 379 Ms Barber withdrew her claim in the ET on the understanding that it would be dismissed, because of the then state of the case law. When a subsequent decision changed the law in her favour she presented a fresh claim to the ET. This court held that she was precluded from doing so by res judicata. Neill LJ said that the fact that the ET had heard no evidence leading up to the withdrawal did not of itself prevent res judicata from applying. It is clear that he took the view that it was a case of cause of action estoppel rather than issue estoppel, and that cause of action estoppel was absolute in the absence of fraud or collusion. However, we now know from Virgin that even cause of action estoppel is not absolute. On the facts it seems clear that in Barber, Ms Barber accepted that her claim would fail on the underlying merits, and that that was the reason for the withdrawal.
37. In Lennon v Birmingham CC [2001] EWCA Civ 435, [2001] IRLR 826 Ms Lennon made a claim in the ET alleging sex discrimination. She later withdrew her application which the ET then dismissed. A few months later she issued proceedings in the county court alleging negligence and breach of contract arising out of the same facts. The council applied to strike out the claim as an abuse of process, and this court upheld that decision. At [30] Buxton LJ said:

"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."

38. However, as we will see, the law has moved on. In Sajid v Sussex Muslim Society [2001] EWCA Civ 1684, [2002] IRLR 113 Mr Sajid made a claim in the ET which included a claim for £72,000 damages for breach of contract. At the time the ET did not have jurisdiction to award a sum of that magnitude. Mr Sajid recognised that limitation and said in his IT1 form that he "reserve[d] the right to rely on the findings of the tribunal as res judicata in another court to recover the balance." However, Mr Sajid then withdrew his claim for damages for breach of contract, which the ET dismissed. He then began an action for breach of contract in the High Court. This court held that he was entitled to do so. Mummery LJ held that it was necessary to examine the circumstances in which and the purposes for which the dismissal order was made. As he said at [14] the legal effect of any act must be considered in its particular factual context. In so saying, it seems to me that he was adopting a far less formalistic approach than that adopted in Lennon. Having examined the context, Mummery LJ said at [16]:

"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."

39. The tension between Lennon and Sajid was resolved to some extent in Ako v Rothschild Asset Management Ltd [2002] EWCA Civ 236, [2002] ICR 899. Ms Ako made a claim for unfair dismissal and racial discrimination to the ET. She wrote to the tribunal withdrawing her application. The ET made an order dismissing the application on withdrawal. When she brought a second claim raising the same allegations, Rothschild said that she was barred from doing so by the principle of cause of action estoppel. In the course of deciding that question the ET found that Ms Ako did not intend to abandon her claim. This court held that she was entitled to bring her second claim, despite the dismissal of the first. At [27] Mummery LJ said:

"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."

40. At [30] he said:

"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."

41. It is to be noted that what Mummery LJ stressed is the withdrawal, not the subsequent dismissal. That must require an examination of the reasons why the claimant withdrew the claim. At [34] Dyson LJ said:

"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."

42. The critical issue, then, in Dyson LJ's view is whether the person abandoning the application "intended ... to abandon his claim or cause of action." Jonathan Parker LJ agreed with both judgments. Thus although Mummery LJ referred to cases in which it was "clear" that the withdrawal was in substance a discontinuance, Dyson LJ posed the question in more neutral terms. As this court held in Spicer v Tuli [2012] EWCA Civ 845, [2012] 1 WLR 3088 Dyson LJ's judgment is an alternative ratio decidendi of that case.
43. The last case in this series to which I need to refer is Nayif. Mr Nayif issued a claim in the ET alleging race discrimination. The ET held that the claim was out of time. He then issued proceedings in the High Court alleging breach of contract and negligence, covering the same ground. This court held that he was entitled to pursue the High Court action. Elias LJ said at [27]:

"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."

44. This way of putting the question seems to me to echo the approach of Dyson LJ. The question as posed by Elias LJ is whether the claimant has consented either expressly or by implication to concede the issue.
45. I agree with the judge at [84] (iv) that what matters is Dr Srivatsa's intention at the time when he withdrew his claim. The mere fact that someone writes to the ET asking for a claim to be withdrawn without explaining why sheds no real light on the question whether he conceded that his claim would fail on the merits. As Khan makes clear the mere fact of withdrawal is in substance a discontinuance which implies no such concession. Thus I do not consider that the e-mail of 25 October 2011 can be taken by itself to amount to such a concession, although if no further contemporaneous explanation is given before dismissal such an inference could be drawn. When one examines the e-mail of 7 November 2011 I do not consider that it can be said that Dr Srivatsa conceded that his claim would fail on the merits. First, the e-mail states in terms that he withdrew for economic reasons; not because he thought the claim would fail. Second, by way of further explanation it said that Dr Srivatsa faced "a barrage of technical and procedural issues." As we have seen from the ET3 forms filed by both respondents those issues included issues that went to the jurisdiction of the ET to entertain the claim. Limited jurisdiction and avoidance of multiplicity of action were justifiable reasons in both Sajid and Nayif for allowing the second action to proceed. Third, the e-mail asked for the original claim to be reinstated. Although that was not procedurally possible, it is, to my mind, a clear indication that Dr Srivatsa was not conceding that his claims would fail. Fourth, the very fact that the e-mail objected to dismissal itself points to the withdrawal as being in substance a discontinuance.
46. The judge decided against Dr Srivatsa at [84] on the ground that he should have made it clear (either expressly or by necessary implication) that he had it in mind to follow the withdrawal of the ET proceedings by proceedings in the High Court. I do not consider that the burden on a claimant operating under the 2004 Rules was that high (although an express reservation is now required by the 2013 Rules). As both Dyson and Elias LJJ have explained, the question is a more neutral one. The judge distinguished Nayif on the ground that Mr Nayif had pursued his claim in the ET but had lost on the jurisdictional ground, whereas Dr Srivatsa had simply withdrawn. I agree with Mr Bedloe that this would have the result that Dr Srivatsa would have been in a better position had he fought and lost in the ET than he was in fact in by recognising that the jurisdictional problems could be overcome by withdrawing and then starting the High Court action. While I would not go so far as calling that "perverse" Mr Bedloe's point is, in my judgment, a powerful one.
47. In my judgment the circumstances at the time of the withdrawal of the ET proceedings do not lead to the conclusion that Dr Srivatsa intended to concede the merits of his claim. In respectful disagreement with the judge I would hold that he is not precluded from continuing his High Court claim. The effect of the judge's decision is that, in the words of Mummery LJ in Sajid:

"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."

48. I would allow the appeal.

Lord Justice Kitchin:

49. I agree.

Lady Justice Asplin:

50. I also agree.