British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mensah v Heatherwood & Wexham Park Hospitals NHS Trust & Ors [2002] EWCA Civ 1610 (1 November 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1610.html
Cite as: [2002] EWCA Civ 1610
[New search] [Printable RTF version] [Help]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
Strand London, WC2 Friday, 1 November 2002 |
||
B e f o r e :
____________________
| ESTHER MENSAH | Applicant | |
| -v- | ||
| HEATHERWOOD & WEXHAM PARK HOSPITALS NHS TRUST | ||
| A DOAK | ||
| J OSTLER | ||
| L WEBB | ||
| H HUGHES | ||
| WESTMIDLANDS UNIVERSITY HOSPITAL TRUST | ||
| THE ROYAL BERKSHIRE & BATTLE HOSPITALS NHS TRUST | Defendants |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Defendant did not attend and was not represented
____________________
Crown Copyright ©
- LORD JUSTICE KEENE: This is an application by Mrs Mensah for permission to appeal against part of an order made by the Employment Appeal Tribunal on 5 July 2002.
- This matter was listed for hearing at 10.00 this morning. It is now very nearly 10.15 and there is no appearance by or on behalf of Mrs Mensah. Apparently no message has been received from her at the List Office indicating that she is delayed. I have read the papers with some care and therefore take the view that I can deal with this matter properly in her absence.
- In general the Employment Appeal Tribunal ("EAT"), in its order in July at what was a preliminary hearing, took the view that Mrs Mensah's appeal should go to a full hearing. That was their order. That full hearing has not yet taken place but in the course of its decision the Appeal Tribunal upheld a striking out by the Employment Tribunal below of one of her three originating applications on the basis that it was attempting to relitigate matters previously decided in the Employment Tribunal in 1979 and 1999 (see paragraph 17 of the EAT's judgment). That is what Mrs Mensah now seeks permission to appeal.
- Her application to the Employment Tribunal was dated 19 February 2001. It complained of unfair dismissal, race and sex discrimination and victimisation by her employer, the Royal Berkshire and Battle NHS Trust. The complaints related to a period between September 1973 and February 1978 when she was employed as a midwife at a hospital in Reading. She was dismissed in 1978 and brought a complaint of unfair dismissal amounting to victimisation against the Berkshire Area Health Authority. That complaint was dismissed by an industrial tribunal sitting at Reading on 26 September 1979.
- According to an affidavit sworn by Mrs Mensah she appealed unsuccessfully against that decision to the Employment Appeal Tribunal. That is as far as those proceedings went.
- In 1993 she applied for a review of the 1979 decision on the ground that fresh evidence had since come to light. But that application was refused by the regional chairman. It seems that there was then an appeal to the EAT and to the Court of Appeal, but without success at either level.
- In 1999 she issued further proceedings against the present respondent complaining of sex and race discrimination and unfair dismissal in 1978. That complaint was struck out on the grounds that it is was frivolous or vexatious. An appeal to the EAT was dismissed. That matter seems to have gone no further.
- In the present proceedings Mrs Mensah argues that the previous decisions on her complaint about her dismissal in 1978 did not take account of her rights under European Community Law, and in particular under the Equal Treatment Directive 76/207/EEC. In addition, it is said in her written skeleton argument that her 1978 unfair dismissal claim was never fully litigated. She says that there was no preliminary hearing on her appeal against the Industrial Tribunal decision of 26 September 1979, and she claims that this omission was an error of law. She also claims that the Industrial Tribunal failed to consider her complaints of victimisation.
- In addition, she argues the failure of the Employment Tribunal on 13 August 2001 to consider issues relating to the reasons why she was struck off the Roll of Midwives violated her right to a fair hearing under Article 6 of the European Convention on Human Rights. The 1993 and 1999 refusals to review the 1979 decision further violated this right. That is the gist of her current complaints.
- None of these points seem to me to have any substance. But in any event Mrs Mensah faces an insuperable difficulty in seeking to raise them. Insofar as they have been raised before by her in proceedings in 1979 or 1999 they are res judicata; that is to say, the issues have already been determined and cannot properly be relitigated. Insofar of any of these arguments were not raised in the previous proceedings they should have been. It is a basic principle that in litigation, or any other proceedings, a claimant must raise all the points which he wishes to raise on the one occasion. He cannot in general principle argue one lot of points on one occasion, lose, and then come back for a second go on a later occasion.
- Moreover, it is now far too late to seek to raise complaints about the conduct of the respondent in 1978. There is a three-month time limit on making applications to an Employment Tribunal about complaints of unfair dismissal and discrimination. We are here dealing with an attempt to bring a complaint 24 years after the events in question. It would be quite impossible for any fair hearing to take place after that length of time. I am satisfied that the Employment Appeal Tribunal was entirely right in its decision. There is no prospect whatsoever of a successful appeal in this matter.
- This application is therefore dismissed.
Friday, 1 November 2002