England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Sir Edwin Jowitt
HQ02X04120

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2005

Lord Justice Wall:

Introduction

1. On 9 December 2002, the respondent to this appeal, Ms Natasha Sivanandan, issued proceedings in the Queen's Bench Division of the High Court (the Queen's Bench proceedings) against the appellant, the London Borough of Enfield (Enfield) for damages for breach of contract. The contract in question was a contract of employment between Ms Sivanandan and Enfield under which Enfield employed Ms Sivanandan as a racial equality officer.
2. The particulars of claim in the Queen's Bench proceedings are dated 5 April 2003. Enfield did not file a defence, and as a consequence Ms Sivanandan obtained judgment in default. Enfield then applied both to set aside the judgment and to strike the proceedings out as an abuse of process. On 13 November 2003, Master Leslie set aside the judgment and struck out parts of the particulars of claim. He gave Enfield permission to appeal against his refusal to strike out the proceedings in their entirety, but refused Ms Sivanandan's application for permission to mount a cross-appeal designed to reinstate those parts of the claim, which he had struck out. However, on 21 January 2004, Cox J gave Ms Sivanandan permission to appeal, with the result that the appeal and the cross-appeal came before Sir Edwin Jowitt, sitting as a judge of the High Court, on 9 to 11 March 2004. In a reserved judgment handed down on 5 April 2004, he dismissed both, and refused both parties permission to appeal.
3. On 20 May 2004, Brooke LJ, on the papers, granted Enfield permission to appeal, but refused Ms Sivanandan's application. She renewed it before Maurice Kay LJ on 29 July 2004; he directed that the application be adjourned to the hearing of Enfield's appeal and granted her permission to file her respondent's notice out of time.
4. At the outset of the argument before us, and with the agreement of both counsel, we heard Ms Sivanandan's application for permission to appeal first. Having done so, we announced that her application would be refused for reasons which we would give when giving judgment on Enfield's appeal. At the conclusion of the argument on the appeal, we reserved judgment.

Rule 3.4 of the Civil Proceedings Rule 1998 (CPR)

5. As applied to this case, the relevant provisions of CPR Rule 3.4 are the following: -

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; ……

The issues in bare outline

6. Enfield argues that the Queen's Bench proceedings are an abuse of process on two principal grounds. The first is that the claims which Ms Sivanandan now seeks to bring were all properly before the Stratford Employment Tribunal in proceedings brought by Ms Sivanandan against Enfield and others in which she had claimed race discrimination and victimisation under the Race Relations Act 1976 (RRA 1976), unfair dismissal, breach of contact, and sex discrimination under the Sex Discrimination Act 1975 (SDA 1975). The claim for breach of contact, it argues, had never been withdrawn from the Employment Tribunal and it was, accordingly, finally adjudicated upon and disposed of when the Employment Tribunal, in circumstances, which I shall describe, struck out all Ms Sivanandan's claims on 6 September 2000.
7. Secondly, and in the alternative, Enfield argues that even if the breach of contract claim was withdrawn from the Employment Tribunal, the Queen's Bench proceedings are an attempt to resurrect, as a claim for breach of contract, allegations of race discrimination and victimisation which Ms Sivanandan had every opportunity to ventilate in the Employment Tribunal proceedings. Furthermore, Enfield argues, Ms Sivanandan had asserted throughout the Employment Tribunal proceedings that she had been dismissed from her employment as a racial equality officer on 11 December 1996. It was thus an abuse of process for her now to seek to bring proceedings in which she asserted that she had never been dismissed; and that her contract of employment remained in being because she had never accepted Enfield's unilateral and unlawful repudiation of it.
8. Ms Sivanandan's case, in a nutshell, is that her claims for breach of contract and wrongful dismissal were clearly withdrawn from the Employment Tribunal on the basis that they exceeded in value the Employment Tribunal limit of £25,000 and that she intended to pursue them in the County Court or the High Court. They were thus unaffected by the dismissal of her Employment Tribunal proceedings. Secondly, she argues, that far from being an abuse of process, the Queen's Bench proceedings represent her final opportunity to obtain the justice which she had been seeking since she first instituted proceedings in the Employment Tribunal in 1997. She had never been dismissed by Enfield. Whilst Enfield had unilaterally and unlawfully repudiated her contract of employment, she had never accepted that repudiation. Her primary case, accordingly, was that she was entitled to damages on the basis that she had remained throughout Enfield's employee. Alternatively, if her contract of employment with Enfield had been terminated, she had been denied a proper grievance and disciplinary procedure, and Enfield's liability to her in damages extended to the period in which the contract could have been lawfully terminated – a period which, she estimated, would probably have lasted up to two years, given the complex nature of the grievances raised..
9. There are, clearly, various ways in which the complex history of a case such as the present can be approached. I have come to the conclusion that the manner of presentation which most readily demonstrates the answer to the appeal, and which enables the Queen's Bench proceedings to be seen in their proper context, is to deal with events in chronological order. This judgment will, accordingly will deal with events in the following sequence;

(1) the history of the proceedings between the parties in the Employment Tribunal and the County Court (paragraphs 10 to 50);

(2) the claim as pleaded in the Queen's Bench proceedings (paragraphs 51 to 55);

(3) the decision of Master Leslie (paragraphs 58 to 59);

(4) the decision of Sir Edwin Jowitt (paragraphs 60 to 69);

(5) Ms Sivanandan's application for permission to appeal (paragraphs 70 to 84);

(6) the arguments advanced in this court on both sides in Enfield's appeal (paragraphs 85 to 98);

(7) Discussion, analysis and conclusion (paragraphs 99 to 140).

Ms Sivanandan's application to the Employment Tribunal

10. I therefore begin the history on 8 March 1997, when Ms Sivanandan filed a Form IT1 in the Employment Tribunal at Stratford in East London. The particulars, which she gave about herself in that form, were that she had been employed between 22 July 1996 and 11 December 1996 as a Racial Equality Officer at Enfield Racial Equality Council (EREC). In Box 5 of the form, in which she was asked to give "the name and address of the employer, other organisation or person against whom this complaint is brought", she identified three. They were (1) Enfield; (2) EREC; and (3) a director of EREC identified as Ms C Bhatia.
11. The complaints which Ms Sivanandan made were of: -

(1) Racial discrimination and victimisation, contrary to RRA 1976;

(2) Unfair dismissal (written statement of employment particulars);

(3) Breach of contract ;

(4) Sex discrimination, contrary to the SDA 1975.

12. A word of explanation about complaints (2) and (3) above is necessary. Ms Sivanandan could not avail herself of the right not to be unfairly dismissed given by section 94 of the Employment Rights Act 1996 (ERA 1996) because she had plainly not been continuously employed for a period of what was then two years (now 12 months): - see ERA 1996, section 108(1). However, she was able to make a claim under ERA 1996, section 104(1)(b), since ERA 1996 section 108(3) disapplies section 108(1) in relation to it. Section 104(1)(b) provides: -

An employee who is dismissed shall be treated for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee - …..

(b) alleged that the employer had infringed a right of his, which is a relevant statutory right.

13. The "relevant statutory right" which Ms Sivanandan identifies in the statement attached to her Form IT1 is her right to a written statement of employment particulars (ERA 1996, section 1). It will be noticed that, to succeed under ERA 1996 section 104(1)(b), Ms Sivanandan would have had to demonstrate that her assertion of her statutory rights was either the reason (or if there were more than one) the principal reason for her dismissal.
14. As for Ms Sivanandan's claim for breach of contract, the particulars which she gives are the following: -

I believe the respondents breached the contract of employment and varied the contract of employment by providing me with incorrect information about grievance and disciplinary procedures.

She then adds:

I believe that there was unfair and unreasonable application of grievance and disciplinary procedures, breaches of principles of natural justice, and breaches of good employment and equal opportunities procedures and practices following my complaints about, amongst other matters, racial discrimination and victimisation, to my detriment.

15. It should also be noted that article 3(c) of the [Employment Tribunals] Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623) provides that proceedings may be brought in an Employment Tribunal for the recovery of damages for breach of a contract of employment only where "the claim arises or is outstanding on the termination of the employee's employment" (emphasis added). Article 10 of the same Order limits the amount an Employment Tribunal can award in a breach of contract claim to £25,000.
16. The first sentence of the three page document attached to her Form IT1, in which Ms Sivanandan set out the details of her complaints, begins with the words: "I was dismissed from my post of Racial Equality Officer at (EREC) …. on 11 December 1996, following a series of complaints that I made, both verbally and in writing against the Respondents – that is, the EREC Director, the EREC Executive Committee and (Enfield)". She says she made these complaints on behalf of herself and on behalf of EREC clients, to whom, as part of her job, she was providing advice, assistance and representation.
17. Ms Sivanandan then goes on to identify the many complaints she made, both orally and in writing, and the persons to whom she made them, prior to her dismissal on 11 December 1996. I shall return, briefly, to the detail of these in due course. She claims that as a result of these complaints she was suspended on 11 October 1996. She claims that the manner in which her complaints were dealt with (in comparison to the complaints of others against her) was racially discriminatory and constituted victimisation contrary to RRA 1996. She then says: -

I believe that the respondents acted unreasonably and unfairly in the procedures adopted to suspend and dismiss me, in the manner of my suspension and dismissal and in relation to the complaints leading up to the decision to dismiss me and thereafter. I believe that there was no sufficient reason for my dismissal.

Ms Sivanandan also makes a complaint of sex discrimination based on a refusal to allow her to job-share, although this application, in the event, was not pursued.

18. Whatever else may be said about Ms Sivanandan's Form IT1 and its attachment, they leave me in no doubt whatsoever that on 8 March 1997, she was making it abundantly clear that her complaints to the Employment Tribunal were being advanced on the basis that she had been dismissed from her post as a Racial Equality Officer, and that her contract of employment had come to an end. Furthermore, it seems to me that the two documents contain a comprehensive statement of the various claims, which Ms Sivanandan believed she had, and which the Employment Tribunal had jurisdiction to entertain..

The responses to Ms Sivanandan's IT1 by EREC and Enfield

19. EREC and Ms Bhatia put in their notice of appearance to Ms Sivanandan's claim (known as a Form IT3) on 19 March 1997. They agreed that Ms Sivanandan had been dismissed, and that the dates she had given for her employment were correct. The document sets out in detail the complaints against Ms Sivanandan and the disciplinary procedure undertaken. Because of complaints about her, she had been suspended on 11 October 1996. EREC asserts that the panel hearing the subsequent disciplinary proceedings properly decided that Ms Sivanandan had been guilty of gross misconduct and should be summarily dismissed. She had been notified of her dismissal by a letter dated 11 December 1996, although she had received one month's salary in lieu of notice on an ex gratia basis. There were denials of the allegations of race discrimination and victimisation. There was a denial that Ms Sivanandan had been unfairly dismissed. The point was taken that she did not have the two years continuous employment and was thus not entitled to complain of unfair dismissal. The point was also taken that her claims of sex discrimination (which were denied) were out of time.
20. Enfield, for reasons, which are not entirely clear, put in a notice of appearance asserting that it was not Ms Sivanandan's employer. It stated that a preliminary hearing would be sought to determine the point. Without prejudice to that contention, Enfield in summary form adopted the same stance as EREC. It also denied any breach of Ms Sivanandan's contract.

The initiation of the County Court proceedings

21. On 8 September 1997, Ms Sivanandan wrote to the Central London County Court. The text of the letter reads: -

Dear Clerk to the Court

"I am issuing a County Court summons against the London Borough of Enfield in respect of their actions in November and December 1996 and January and February 1997 and since then, which I believe breached the 1976 Race Relations Act.

The time limit of 6 months for bringing such a claim has been extended to 9 months by the assistance of the Commission for Racial Equality, see the CRE letter to myself dated 2^nd September 1997, (copy attached).

I am lodging this claim to reserve my rights pending the outcome of my industrial tribunal claim against the London Borough of Enfield which has been presented at Stratford Tribunal, London E15, but for which no date has yet listed.

22. The actual pleading reads:-

"PARTICULARS OF PLAINTIFF'S CLAIM:

On 11^th December 1996 I was dismissed from the post of Racial Equality Officer based at the Enfield Racial Equality Council, (EREC), based at 258(a) Hertford Road, Enfield, Middlesex, following complaints made against me by senior officers of the local authority, the London Borough of Enfield (LBE).

My dismissal followed a series of complaints that I made, both verbally and in writing, alleging racially discriminatory practices by officers and departments of the London Borough of Enfield and other complaints.

The London Borough of Enfield discriminated against me and victimised me, contrary to Section 20 of the 1976 Race Relations Act.

I was treated less favourably and victimised by the London Borough of Enfield in its provision of services and in the way it responded to my complaints and allegations that L.B.E officers and departments were breaching the 1976 Race Relations Act.

My complaints and allegations were made in good faith and led to my victimisation by the L.B.E, contrary to the 1976 Race Relations Act.

23. RRA 1976, section 20 deals with discrimination in the provision of goods, facilities and services, for which section 57 provides a remedy in the County Court. By RRA 1976 section 54, claims for racial discrimination or victimisation in the employment field are made to an Employment Tribunal, not to the County Court. It is clear, therefore, that Ms Sivanandan issued protective proceedings in the County Court to guard against the risk that EREC might be found to be her employer in the Employment Tribunal proceedings. If that was the Employment Tribunal's conclusion, she could then proceed against Enfield in the County Court for discrimination in the provision of services offered to her. On the other hand, if the Employment Tribunal found Enfield to be her employer, the County Court would have no jurisdiction under RRA 1976, and the proceedings would inevitably fall to be dismissed.

The first hearing in the Employment Tribunal on 24 October 1997

24. On 24 October 1997 the Employment Tribunal at Stratford sat to deal with a number of preliminary issues. Ms Sivanandan appeared in person. Enfield was represented by a solicitor, Mr. J Cawston. A different solicitor represented EREC and Ms Bhatia. Although the Tribunal had set aside the whole day to deal with preliminary issues, it did not have time to deal with them all. The Tribunal reserved its reasons for the orders it did make, which were promulgated on 21 November 1997.
25. Unfortunately, in setting out the orders it had made, the Employment Tribunal mistakenly appears to have thought Ms Sivanandan had made an application to amend the proceedings to include a claim under ERA 1996, section 70 (failure to pay the whole or any part of remuneration to which an employee is entitled when suspended from work). At the next hearing on 23 January 1998, Ms Sivanandan duly pointed out the error and sought a review of the decision. She also sought a correction of the extended reasons promulgated on 21 November 1997, in which the Chairman had recorded that there was in existence a claim for breach of contract by Ms Sivanandan "arising out of the failure to give notice". Ms Sivanandan successfully sought the deletion of the words in quotation marks.
26. I record the orders made on 24 October 1997 as subsequently corrected. The Tribunal unanimously decided: -

(a) The Tribunal has jurisdiction to consider the Applicant's complaint under the Race Relations Act 1976.

(b) The Tribunal had jurisdiction to consider the Applicant's complaint under the Sex Discrimination Act 1975.

(c) The Applicant was employed by the First Respondent (Enfield) and the Second Respondent (EREC) is dismissed from these proceedings.

(d) The Applicant's application to bring a claim under the Equal Pay Act 1970, being out of time, is dismissed on withdrawal by the Applicant.

(e) The hearing is adjourned until 23 January 1998 when the Tribunal's jurisdiction to consider the complaint of unfair dismissal and the Applicant's application to join a number of named individuals will be considered, following which there will be a Pre-Hearing Review.

I need not set out the Tribunal's reasons for reaching these decisions.

The application to amend the County Court proceedings

27. On 12 January 1998, Ms Sivanandan wrote to Enfield, enclosing (amongst other documents) an application she was making to the County Court for a Questionnaire pursuant to RRA 1976 section 65 together with

"An application to amend / consolidate my claim for breach of contract / wrongful dismissal with my particulars of claim and my reasons for requesting an amendment / consolidation of claim."

28. The particulars of claim attached to this letter read as follows:-

PARTICULARS OF CLAIM – FOR CONSOLIDATION WITH CASE NO. CL 756477

CLAIM OF WRONGFUL DISMISSAL AND BREACH OF CONTRACT FOR THE REASON THAT THE DISMISSAL WAS IN BREACH OF A CONTRACTUAL DISMISSAL PROCEDURE

Between 22^nd July 1996 and 11^th December 1996 I was employed by (Enfield) as a Racial Equality Officer (R.E.O) based at (EREC). As a result of a series of complaints I made about both (Enfield) and EREC, I was summarily dismissed on 11^th December 1996.

Although my contract included a (Enfield) grievance and disciplinary procedure, I was in fact dismissed by EREC under an entirely different set of grievance and disciplinary procedures and my complaints and grievances were never dealt with, contrary to my contractual rights.

I claim that my dismissal was in breach of the rules of natural justice and in breach of a contractual dismissal procedure and constituted wrongful dismissal in breach of my contract of employment.

The second hearing at the Employment Tribunal

29. On 23 January 1998 (extended reasons promulgated on 10 February 1998) the Stratford Employment Tribunal, identically constituted, sat for the second time. As I have already stated in paragraph 25 above, it reviewed its previous decision in a number of respects. It ordered that Ms Sivanandan's unfair dismissal claim (which had been based on her assertion of her statutory right to a written statement of her employment particulars) "be dismissed on withdrawal". It held that it had jurisdiction to consider Ms Sivanandan's claim for breach of contract, and it refused her application for permission to amend her claim to join sixteen named members of EREC's executive committee as individual defendants. It adjourned the following matters to 20 March 1998, namely:-

(1) a pre-hearing review;

(2) the applicant's application for costs;

(3) questions of discovery;

(4) applications for further and better particulars.

30. In relation to this hearing, there is a discrepancy between the Tribunal's decision that it had jurisdiction to entertain Ms Sivanandan's claim for breach of contract, and a note of the hearing, which Ms Sivanandan has produced. In paragraphs 5 and 6 of its reasons, the Tribunal stated:-

5. The Tribunal next considered the question of whether it had jurisdiction to consider the Applicant's claim for damages by way of breach of contract. The Applicant submitted that the disciplinary procedure followed at the time of her dismissal was the incorrect procedure, and that it was a fundamental right of an employee that the proper dismissal procedures should be followed; failure to do so therefore was a substantial breach of her contract. Mr Cawston, for the First Respondent, conceded that the procedure of the London Borough of Enfield had not been followed. The dismissal proceedings had been conducted by members of the Enfield Racial Equality Council. ("EREC") He contended that for a breach of contract there must be quantifiable damages arising from the breach and that this was not the case.

6. It is well established that failure to follow a disciplinary procedure, the effect of which might be to extend employment, can give rise to a claim in damages. The amount of loss sustained by an employee by reason of such a breach of contract would be a matter for the Tribunal to determine after hearing all the evidence at a full merits hearing. Accordingly, the Tribunal finds that it does have jurisdiction to consider the Applicant's claim for damages for breach of contract.

The Tribunal also found as a fact that Ms Sivanandan had been dismissed on 11 December 1996.

31. Ms Sivanandan has produced a note she made in relation to the hearing on 23 January 1998. It is manifestly not a contemporaneous note, since it purports to record exchanges between herself and the Tribunal chairman as they took place. As reliance is placed on the note, however, it is necessary to set out the appropriate extracts from it.

"Unfair dismissal claim

NS – based on Sect 104 of EMP Rights Act 96 – failure to give written statement of employment particulars. (See ITI)

Chair – Isn't your point – principal reason for dismissal – race discrim?

NS – Yes, but contrib issue – asked several times

Chair – Do you wish to say it was principal reason?

NS – No

Chair – Can only use this if principle (sic) reason for dismissal? assertion of that right.

NS – Didn't know that – doesn't say that on DTI booklet – withdraw if that is the case.

Breach of Contract

NS – Fundamental Right to correct info on griev & disc. Proced. – LBE various docs. (bundle – letter of 18^th July 96 from LBE – Read from DTI booklet). Yet EREC discipl. proc. used.

Cawston – Accept disc. proc. was ERECs – not LBE. No quantifiable damages.

Chair – Accept correct info not given?

C - Yes

Chair – Accept there was breach of contract at date of terminat?

C- Yes

Chair – so Br of con. arose and was outstanding at dismissal. Reserve decis ? after lunch."

32. Later in the note the heading LUNCH appears and then:-

After lunch 2.06 pm

Chair – Breach of contract cl. allowed. Failure to give correct info re griev & disc. proced. Failure to follow correct proced – clearly gives rise to br of con. Fail to follow. disc. proc. Might be to extend employ – clearly gives rise to cl. in damages. Do not accept Mr Cawston's arg on this. However, limit to damages for claim in IT - £25,000 can bring claim in county or High court

NS – Taken advice. Intend to pursue in C.C. cos of limit in IT. Have already informed LBE re intention to do so Not pursuing in IT – only point in ITI is re incorrect info given.

33. Ms Sivanandan relies on the note in support of her argument that she did not intend to pursue her claim for breach of contract before the Employment Tribunal, and that it had been withdrawn from the Stratford Employment Tribunal when that Tribunal struck out her claims on 6 September 2000. There is, however, nothing in the Employment Tribunal's reasons which supports the final paragraph of the note, nor is there any reference to the Chairman explaining the financial limit on a claim for damages brought in the Employment Tribunal. Most importantly, perhaps, the Employment Tribunal did not record the breach of contract claim as having been withdrawn – contrast the claim for unfair dismissal, which the Tribunal ordered "be dismissed on withdrawal". To the contrary, the Employment Tribunal held it had jurisdiction to entertain the breach of contract claim.
34. Ms Sivanandan appealed to the Employment Appeal Tribunal (EAT) against the Tribunal's refusal to join the individual members of EREC's executive committee as parties to the proceedings. There were other appeals, the detail of which is not material.
35. On 20 March 1998, there was a further hearing in the Employment Tribunal. The Tribunal refused Mrs. Sivanandan's application that it should review its decision of 23 January 1998. Orders were made in respect of particulars. It was also ordered that witness statements be exchanged two weeks before the full hearing on the merits, and that the case should be listed for a hearing lasting 15 days, that hearing to take place after the EAT had given its decision on Ms Sivanandan's appeal against the orders made on 23 January 1998.

The withdrawal of the County Court proceedings

36. On 3 April 1998, Ms Julie Spicer, a solicitor employed by Enfield, swore an affidavit in support of an application to strike out the County Court proceedings. In paragraph 6 of her affidavit, Ms Spicer accepted that, when Ms Sivanandan had commenced those proceedings, the question of the identity of her employer was unresolved. That explained why Ms Sivanandan had sought to invoke RRA 1976, section 20 in the County Court. However, Ms Spicer continued, the Employment Tribunal had now determined that Enfield was her employer: all her claims, including those of race and sex discrimination related to her employment, and accordingly the County Court did not have jurisdiction to entertain her claim against Enfield. On Ms Sivanandan's application to amend the claim (see paragraphs 27 and 28 above) Miss Spicer argued: -

8. The proposed amendment is to add a claim for wrongful dismissal and breach of contract. Quite apart from technical reasons for opposing the amendment (which will be a matter for argument) an identical claim has already been made within the Industrial Tribunal proceedings, and will be determined there (my emphasis). It would be unnecessary (and wrong) for this Court to allow multiplicity of proceedings, with the attendant risks of the two forums coming to different decisions. The Industrial Tribunal is seized of all matters in issue between the parties and is the proper forum.

37. Paragraph 8 of Ms Spicer's affidavit is, of course, entirely consistent with the decision of the Employment Tribunal on 23 January 1998 (see paragraph 29 above). It appears from the passage, which I have highlighted, moreover, that Enfield regarded the contractual claim in the Employment Tribunal as embracing damages for wrongful dismissal.
38. On 12 May 1998, an order was made in the Central London County Court giving Ms Sivanandan permission to withdraw the proceedings with no order as to costs. Ms Sivanandan has produced a note dated 7 April 1998, on which she relies. In the extract which follows, HLC stands for Hackney Law Centre, and the "McMeel Invest" is a reference to an enquiry which Enfield set up following Ms Sivanandan's complaints about the way EREC was functioning, and to which Ms Sivanandan makes reference in paragraph 19.2 of her particulars of claim in the Queen's Bench proceedings (see paragraph 52 below).

"LBE County Court Case – CL756477

Tues. 7/4/98

11AM – Appt with Catrin Lewis – HLC. Advice – withdraw current claim. Await outcome of McMeel Invest. Issue claim for breach of contract/ wrongful dismissal in c.c. In due course. No hurry – 6 yrs to bring claim. Phone LBE today – agree para 6 of J Spicer's affidavit. Don't agree para 8 of affidavit:- no br of contract claim in respect of "dismissal" by EREC in IT – ITI clearly limits claim to wrong info given. Limit of damages in IT to £25,000 – my claim worth more. Ask LBE if they'll agree "no order as to costs" if I withdraw c.c claim (each side pay own costs if I drop case). No claim for race dis. in cc cos of IT decis. Let court know by tom. Cos of 9/4 hearing- risk of costs – get LBE agree.

Phone Mr Deller, LBE. (pm)

Obtained advice from Law Centre this morn. (read out all of the above) if unclear re claim in IT see my ITI. Law Centre will help issue br. of c/wrongful d in due course. Will u agree no order as to costs – need to tell the court by tom? – No author. to agree. Seek Chief Exec's permis. Get back to you tomorrow.

Wed – 8/4/98

Mr Deller rang, 11.50am. Agree no order as to costs I'm to fax court & copy to him on Fax No. 0181 – 379 5168/4065. He'll fax court too. Thanked him

(Faxed Court at 3.30pm)

Mr. Deller, we were told, had left Enfield's employment, and could not be traced.

The outcome of the Employment Tribunal proceedings

39. Between the interlocutory hearing on 20 March 1998 (extended reasons promulgated on 22 April 1998) and the final order of the Employment Tribunal on 6 September 2000 striking out the proceedings under rule 13(2)(e) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, there was a dispiriting abundance of forensic activity. This is recorded, in meticulous detail, over nearly four pages of single spaced A4 typescript by the Employment Tribunal in the extended reasons , which it gave for the decision to strike out Ms Sivanandan's claims, promulgated on 22 September 2000. It is necessary for the purposes of this judgment only to extract the following.
40. On 15 October 1998 the full merits hearing was listed for 20 days starting on 2 March 1999. That date had to be vacated because appeals by Ms Sivanandan to the EAT were outstanding;
41. In what appears to have been a series of hearings during 1999 the EAT, in a constitution chaired by its then President, Morison J, promulgated its various decisions covering all the issues appealed to it. In my judgment, the outcome of the various appeals is not material to this appeal. The EAT was clearly sympathetic towards Ms Sivanandan. At the same time, it took the view that the case had been allowed to get quite out of control and proportion, and that what was needed was an early hearing date.
42. In January 2000, the Employment Tribunal made enquiries of the parties about the anticipated length of the full hearing. Ms Sivanandan estimated 35 days: Enfield and EREC estimated 23. The Chairman accepted the former. There was a three-day interlocutory hearing between 1 to 3 February 2000 dealing with directions for trial and discovery. The hearing was fixed for 5 September 2000. On 3 and 4 April 2000, the parties were ordered to provide discovery by 5 May 2000. On 4 May 2000, Ms Sivanandan filed a fresh appeal to the EAT against the orders made on 3 February 2000.
43. On 8 and 9 May 2000 all Respondents complained to the Tribunal that Ms Sivanandan had not provided discovery pursuant to the order of 24 February 2000. Ms Sivanandan's response was that she had not given discovery because she had appealed the order, which directed it.
44. In a letter to the Tribunal written shortly before the pre-hearing review, which had been fixed for 15 August 2000, Ms Sivanandan asserted that the 35 days set aside for the hearing were inadequate. She anticipated her own evidence taking a minimum of 15 days in chief. Counting up all the witnesses she asserted that 24 days would be required for her and her two witnesses; a total of 35 days for the Respondents' evidence; five days for legal argument and two reading days for the Tribunal - a total of no less than 66 working days.
45. The letter ends with the following important paragraph:

Finally, I give notice that I will seek leave, at the 15^th August hearing to amend my originating application from the original "unfair dismissal" claim to "wrongful dismissal" claim in respect of my dismissal by the wrong party, in addition to the breach of contract claim that already exists (my emphasis). This is also in addition to the other matters raised by myself in earlier correspondence. Finally, I believe that one day will not be sufficient time to deal with all the matters listed to be heard on 15^th August: once again, I believe that insufficient time has been set aside to deal with interlocutory/preliminary matters in this case.

46. We do not have the Tribunal's order made on 15 August 2000. For the full hearing on 5 September 2000, however, Mr. Thomas Linden, counsel instructed by Enfield, produced a document entitled "Outline of the Issues". In relation to breach of contract, he summarised the issues in the following way: -

"Here the current claim is that the Respondents failed to follow the correct procedure in dismissing the Applicant. The Applicant contends that the Council's procedure ought to have been followed and that, had it been, her dismissal would have been delayed. The Respondents are bound by the Tribunal's findings that she was an employee of the Council but the following issues arise:

3.0.1 Was it agreed that she was entitled to the benefit of the Council's disciplinary procedure?

3.0.2 If so, would the outcome have been delayed under the Council's procedure?

As a footnote, Mr Linden added:-

The applicant seeks to add a claim for wrongful dismissal, to which the Respondents object on the grounds that the amendment comes too late, the delay has prejudiced the Respondent's defence and in any event the Applicant has been paid in lieu.

47. On the first day of the hearing, 5 September 2000, Ms Sivanandan applied for the hearing to be postponed. The Tribunal refused that request. The hearing then proceeded. However, it did not last long. On 6 September 2000 the Tribunal acceded to Enfield's application to strike out Ms Sivanandan's originating application. Its full written reasons both for its decision to proceed on 5 September and the decision to strike out on the following day were promulgated together on 13 September 2000.
48. The order striking out the proceedings reads as follows: -

the Applicant's Originating Application be struck out under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1 Rule 13(2)(e) on the ground that her conduct of the proceedings has been frivolous, vexatious and scandalous.

49. It is, I think, unnecessary for me to record the detailed and careful reasons given by the Employment Tribunal for striking out Ms Sivanandan's claim. I say that for the simple reason that Ms Sivanandan appealed the decision to the Employment Appeal Tribunal which on 23 July 2002, in a constitution chaired by its then President, Lindsay J, gave a long and careful judgment dismissing Ms Sivanandan's appeal. An application for permission to appeal to this court was refused by Mummery LJ at an oral hearing on 7 October 2002. In a sentence, however, the claim was struck out because Ms Sivanandan's conduct at and of the proceedings on 5 September 2000 made it impossible for the hearing to continue. It is also, I think, worth pointing out that at no stage had Ms Sivanandan prepared a proper witness statement, nor had she given discovery.
50. Following the refusal of permission to appeal to this court against the order striking out of the proceedings in the Employment Tribunal, the next date of relevance is 10 December 2002, when Ms Sivanandan instituted the Queen's Bench proceedings. This was, it will be appreciated, the last day before the expiry of the six-year limitation period if the contract had been terminated by dismissal on 11 December 1996.

The pleaded case in the Queen's Bench Proceedings

51. In the Queen's Bench proceedings, Ms Sivanandan asserts that she commenced employment with Enfield as a racial equality officer on 22 July 1996. Having set out her qualifications for the post, Ms Sivanandan says: -

The claimant's place of work was Enfield Race Equality Council ("EREC"), an independent voluntary organisation funded by both the defendant and the Commission for Racial Equality. Although the claimant was never given a contract of employment nor, despite repeated requests, a statement of terms and conditions and despite the fact that the defendant and EREC sought to argue that EREC was in fact the Claimant's employer, in October 1997 Stratford Industrial Tribunal ("the Tribunal") found that an unambiguous contract of employment existed between the claimant and the defendant.

52. In paragraph 2 of her particulars of claim, Ms Sivanandan sets out the terms of the contract relating to pay, notice, annual increments, leave and pension. In paragraphs 3 to 13, she sets out in detail a number of what she describes as "concerns and grievances" which she had about her employment, and in particular what she describes as EREC's failure, in dereliction of duty, to take appropriate action in respect of Enfield's breaches of race equality policies and of RRA 1976. She also sets out complaints made against her by employees of Enfield. She describes the disciplinary procedures taken against her by EREC, leading to EREC on 11 December 1996 writing to her, "purporting to dismiss her". In paragraphs 14 to 18 Ms Sivanandan puts her case in the following way: -

14. EREC wrote to the Claimant on 11 December 1996 purporting to dismiss her, despite the fact that it was not her employer, had no authority to dismiss her and, at the Defendant's own admission, was not acting as an agent for the Defendant. The Claimant pointed out that the EREC disciplinary panel was unlawful even under the EREC procedures as one of the members of the panel was not a member of the EREC Personnel Subcommittee (a requirement under EREC's constitution and standing orders). EREC purported to authorise payment by the Defendant of one month's pay in lieu of notice (despite authorisation not being required from EREC for the payment of the Claimant's wages by the Defendant). The Defendant paid the Claimant's wages up to 11 January 1997 but ceased to pay any wages to the Claimant from that date onwards.

15. As the Claimant was adamant that the Defendant was her employer, she did not consider that her employment with the Defendant had been terminated. By letter dated 16 January 1997, the Claimant wrote to the Defendant stating that, as she was employed by the Defendant and not EREC, she wished to be reinstated by the Defendant and requested that the Defendant continue to pay her wages and deal with her complaints and grievances as one of the Defendant's employees. The Defendant refused to accept that it was her employer and refused her request for reinstatement. The Defendant also refused the Claimant's request for an investigation into her purported dismissal. In order to protect her position and due to the Defendant's refusal to take the action requested, the Claimant also wrote to EREC requesting that she be given the opportunity to appeal the decision to dismiss her. However, EREC refused this request.

16. The Claimant wrote to the Defendant on a number of occasions after she received a copy of the Tribunal's decision (referred to in paragraph 1), again making the point that she was the Defendant's employee and asking that the Defendant reinstate her and follow the correct grievance and disciplinary procedures. One of EREC's members (Councillor Devitt) also made representations on her behalf (both before and after the Tribunal decision). However, the Defendant still refused to accept that it was her employer (despite the Tribunal's decision to the contrary) and refused to take any action in relation to the purported dismissal. The Tribunal's decision followed a preliminary hearing in relation to the Claimant's claims in the Tribunal for unfair dismissal, sex and race discrimination, victimisation and breach of contract (the latter claim limited to breach by the Defendant in respect of information provided to the Claimant).

17. Whilst the Claimant has at all times maintained that she is still employed by the Defendant, she has sought alternative employment as a way of mitigating her loss. However, the Defendant's actions in making unfounded allegations about the Claimant have resulted in damage to the Claimant's reputation and standing within the race relations field, which is very small. Such damage has prevented the Claimant from obtaining alternative employment.

18. The Claimant has suffered psychological injury as a result of the Defendant's actions.

53. In paragraphs 19.1 to 19.4, Ms Sivanandan identifies Enfield's breaches of contract. For ease of reference, I highlight the parts of the pleading struck out by Master Leslie.

19.1 As EREC was (at the Defendant's own admission) not acting for the Defendant when it purportedly dismissed the Claimant, the Defendant acted in breach of contract by refusing to allow the Claimant to work and by failing to pay her wages, despite her being ready and willing to work at all times and despite the fact that a contract of employment continues to exist between them. The Claimant has never accepted the above-mentioned breach as bringing the contract between herself and the Defendant to an end and as such, the Defendant is still obliged to pay salary to and provide work for the Claimant.

19.2 Alternatively, if the fact that the Claimant has not accepted the above mentioned breach is not capable of keeping the contract between the Defendant and the Claimant alive, the Defendant's liability extends to the period in which the contract between itself and the Claimant could have been terminated lawfully. The Claimant's suspension, the investigations into the allegations against her and her purported dismissal were not carried out in accordance with the Defendant's contractual grievance and disciplinary procedure. The grievances raised by the Claimant were not dealt with in accordance with the Defendant's contractual grievance procedure prior to her purported dismissal. As the disciplinary charges against the Claimant all related to the grievances that the Claimant had raised and post-dated her complaints, the Defendant should have investigated all of the Claimant's grievances before taking disciplinary action. Had the Defendant's contractual grievance and disciplinary procedures been followed, this process would probably (due to the complex nature of the grievances raised and including the time for an appeal) have lasted up to two years. The fact that the Applicant's grievances required considerable investigation is evidenced by the fact that the McMeel report was only published in May 1998. This investigation, which commenced in or around February 1997, looked into some of the grievances the Applicant raised - and indeed praised the Applicant for having done so, apologising for the inadequacies relating to the treatment of her complaints between August and December 1996. A special audit investigation ordered by the District Auditor as a result of the complaints the Claimant made, resulted in a further report in May 1998. The report stated that the appointment of Mr Shaik was a personal appointment by the Director of Social Services, was ultra vires and in breach of audit, finance and local authority regulations.

19.3 Alternatively, if EREC was instructed by the Defendant to pretend to be the Claimant's employer and to dismiss the Claimant (as the Claimant believes might be the case), the Defendant dismissed the Claimant in breach of its contractual disciplinary and grievance procedures. In addition, the Defendant (a body exercising a public function pursuant to section 6(3)(b) of the Human Rights Act 1998) acted in breach of the Claimant's right to a fair trial under Article 6 of Schedule 1 to the Human Rights Act 1998. The Claimant considers that the Defendant's treatment of her in this regard was influenced by her race and, as such, that the Defendant acted in breach of Article 14 of Schedule 1 to that Act.

19.4 Further to the breach set out in clause 19.1, 19.2 or 19.3 above, or in the alternative, the Defendant acted in breach of the implied term of trust and confidence.

54. Ms Sivanandan identifies her loss and damage in paragraph 20.1 as either; (paragraph 20.1(a)) unpaid salary from 11 January 1997 to 5 April 1997 and then from year to year until 5 April 2003 and continuing plus accrued pension loss for the whole period in a sum to be assessed; or (paragraph 20.1(b)) loss of wages to 11 December 1998 including loss of accrued pension rights and other rights and allowances for that period, together with pay for outstanding holiday as at 11 October 1996. The Master struck out the paragraph, which claimed loss and damages on the basis set out in paragraph 20.1(a).
55. The other heads of relief which Ms Sivanandan claimed were the following (once again I highlight those struck out by Master Leslie): -

20.2 Expenses incurred in seeking and applying for alternative employment, totalling £320.

20.3 Loss of statutory rights – to be assessed.

20.4 Damage to the Claimant's reputation and standing – to be assessed.

20.5 Damages for pain and suffering, leading to reactive depression (or post traumatic stress disorder) requiring drug and psychotherapeutic treatment – to be assessed.

20.6 Breach of Articles 6 and 14 of Schedule 1 to the Human Rights Act 1998 – damages to be assessed.

The decision of Master Leslie

56. The Master assumed for the purposes of his decision that Ms Sivanandan had told the Chairman of the Employment Tribunal that she would not be proceeding with the breach of contract claims in the Employment Tribunal (see the note set out at paragraphs 31 and 32 above). In paragraph 15 of his judgment, the Master dealt with the central question of whether or not Ms Sivanandan had been dismissed. He concluded that she had. His reasoning is, I think, worth repeating. He said:

15.I have not found the decision to which I have come to an easy one. It seems to me, first of all, that Miss Sivanandan is in the gravest difficulty in saying that she was not dismissed. The whole of her proceedings in the Employment Tribunal were predicated upon the end of her employment being 11 December 1996. As Miss Romney has pointed out, the documents, which were put before the Employment Tribunal and the County Court, were littered with allegations by Miss Sivanandan that she had been dismissed. She says that at that time, although she was receiving some legal advice, she was not well versed in matters legal and had she realised the significance of the use of the word "dismiss" or "dismissal", she would have added the word "purported". Frankly, I do not think that there is anything in that. It seems to me that the whole of her case was based on the fact that she was dismissed in December 1996, albeit by EREC, but for the reasons I have attempted to give already, EREC were acting as the agents of the London Borough of Enfield in dismissing her. Whether or not the procedure that EREC adopted was correct is another matter. Miss Sivanandan says not only was she never subjected to her employer's (the London Borough of Enfield's) disciplinary procedure, but the procedure adopted by EREC was itself not in accordance with the strict rules and regulations that they had set. Into that I need not go for present purposes. The position was that Miss Sivanandan was dismissed, in my judgment, without doubt on 11 December 1996. There are no reasonable grounds for her to say otherwise.

57. In my judgment, the Master's findings (a) that Ms Sivanandan was dismissed on 11 December 1996; and (b) that her case throughout had been that she was dismissed are unassailable. Both facts stand out from the detailed description, which I have given of the Employment Tribunal proceedings.
58. The Master did not, however, strike out the whole of Ms Sivanandan's claim. Basing himself on the decision of this court in Sajid v Sussex Muslim Society [2002] IRLR 113 (hereinafter referred to as Sajid) the Master concluded in summary (1) that Ms Sivanandan had given Enfield sufficient notice that, on the breach of contract aspect of her claim, she did not intend to proceed in the Employment Tribunal, but to bring proceedings for in the High Court because of the financial limit imposed on the Employment Tribunal's jurisdiction; (2) that the breach of contract claim was different from that which would have been heard in the Employment Tribunal; and (3) that Ms Sivanandan's breach of contract claim was accordingly not an abuse, nor was it barred by the principle of issue estoppel.
59. However, the Master went on to hold that paragraph 19.1 of the pleading was unsustainable in the light of his finding that Ms Sivanandan had been dismissed. He commented: "The idea that there is a claim for continuing salary up to today's date is, in my judgment, fanciful". He struck out the claim under the Human Rights Act 1998 as unsustainable given the absence of any retrospective effect of that legislation. He also struck out the allegation that Ms Sivanandan had suffered personal injury on the basis that any injury to her feelings or health that she may have suffered was outside the three-year limitation period, and that Enfield would have a cast iron limitation defence.

The hearing before Sir Edwin Jowitt

60. Sir Edwin Jowitt delivered a lengthy reserved judgment. He identified the three heads of damage which had to be considered, as follows:

21….. There are therefore three heads of damage, which have to be considered in this appeal. They are all based on (Enfield's) repudiation of Miss Sivanandan's contract of employment. The first is the claim for damages for injury to mental health and is based on the implied duty of mutual trust and confidence. The second and third are the claims for damages for loss of earnings and pension rights, the first of these being made on the basis of a continuing contract which has never been terminated, and the second on the narrower basis that the contract was terminated.

22 . It is important to note that Miss Mountfield (counsel for Ms Sivanandan) puts the claim for injury to mental health on the basis that it was the actions of (Enfield) subsequent to Miss Sivanandan's dismissal and its repudiation of her contract, which triggered the injuries to her mental health. Accordingly, whether (Enfield) can prove that she accepted, or is to be taken as having accepted, this repudiation is crucial to whether there is a cause of action on which to base this head of damages. Miss Mountfield accepts that if the contract was terminated the claim for damages for injury to mental health must fail.

61. After an examination of the evidence, Sir Edwin Jowitt came to the clear conclusion that Ms Sivanandan had been dismissed from her employment with Enfield, and that in the language of the contractual claim, her application to the Employment Tribunal of 10 March 1997 constituted an acceptance of Enfield's repudiation of her contract of employment. Sir Edwin Jowitt continued:

25. It is common ground between the parties, resting on the decisions of the Court of Appeal in Gunton v London Borough of Richmond [1980] IRLR 321 and Boyo v London Borough of Lambeth [1995] IRLR 50, that if Miss Sivanandan did accept or is to be taken to have accepted the repudiation of her contract by (Enfield) that dates back to the date of repudiation. The consequence of this is that, if there was acceptance, the contract was no longer in existence at the relevant time and, therefore, the implied duty of mutual trust and confidence was no longer in operation when, on Miss Sivanandan's case the injury to her health was triggered. It follows also that if this be the correct factual basis the damages for loss of earnings and pension rights can only be claimed on the narrower basis set out in paragraph 19.2. If this is the correct factual basis, Miss Mountfield accepts this.

62. Sir Edwin Jowitt then turned to examine the claim for loss of earnings and pension rights made under paragraphs 19.2 and 20.1(b) of the particulars of claim on the basis that Ms Sivanandan's contract of employment had been terminated. This he considered on two bases. Firstly, had the claims been withdrawn from the Employment Tribunal as Ms Sivanandan alleged? Secondly, if they had not, were the current proceedings an abuse of process?
63. Sir Edwin Jowitt noted that, at the time the case was before the Employment Tribunal, there was no provision in the Employment Tribunal's rules of procedure for the amendment of an originating application by withdrawing part of it. It was, however, common ground between counsel that a claim could not be regarded as having been withdrawn unless the applicant had shown a clear intention to withdraw it, and the ambit of what had been withdrawn was clear.
64. Ms Sivanandan relied on her note of the hearing before the Employment Tribunal, the relevant text of which I have set out at paragraphs 31 and 32 above. However, Sir Edwin Jowitt only records in the judgment the extract which begins "After lunch 2-06pm" down to the Ms Sivanandan recording the Chairman as saying: "Matter for you. Can bring in trib or court" (see paragraph 32 above). He does not refer to the exchanges in the morning (see paragraph 31).
65. Sir Edwin Jowitt did not find it easy to reconcile Ms Sivanandan's note with the Tribunal's record of its proceedings. He refers to the extended reasons. In the absence of any evidence to the contrary, and taking Ms Sivanandan's note at face value, Sir Edwin Jowitt reached the conclusion that the claim for loss of earning and pension rights had been withdrawn from the Tribunal by Ms Sivanandan. He said:

In my view, the exchange between Ms Sivanandan and the Chairman, as noted by her, does have the two requisite features of clarity (see paragraph 63 above) and did operate to withdraw her claim for damages for loss of earnings and pension rights from her application to the Tribunal. It is true that earnings and pension rights are not mentioned in the note but it is clear from the nature of the discussion with the chairman of an Employment Tribunal, as described in Ms Sivanandan's note, what it was that was being referred to.

66. Counsel for Enfield accepted before Sir Edwin Jowitt that the materials before the court did not enable the latter to conclude that the claim was worth less than £25,000 (that is to say within the financial limits of the Employment Tribunal's jurisdiction). Sir Edwin Jowitt then rejected Enfield's abuse of process arguments based on Securum Finance v Ashton [2001] Ch 290, and accepted Ms Sivanandan's argument based on Sajid. Sir Edwin Jowitt said that, in his judgment, the latter authority made it "quite clear that for Miss Sivanandan to withdraw her claim from her application to the Tribunal to make a separate claim in civil proceedings was not an abuse".
67. Sir Edwin Jowitt also rejected Enfield's argument that had Ms Sivanandan's claim for race discrimination succeeded in the Employment Tribunal she would have been entitled to claim for loss of earnings and pension rights with no upper limit. He likewise rejected the argument that Ms Sivanandan's attempt to add a claim of wrongful dismissal in the County Court proceedings was abusive. His view was that she had been faced with an application that those proceedings were an abuse, and she had withdrawn them. He added: -

There was never a live contractual issue in that action which might have given rise to an argument that this present action is an abuse. Even when the withdrawal or discontinuance of an action can be said to give rise to an abuse argument or a plea of res judicata this could not apply in Miss Sivanandan's case to a subsequent action brought in contract.

68. Sir Edwin Jowitt also rejected Enfield's argument that the claim was res judicata because the Employment Tribunal had struck out Ms Sivanandan's claim after she had made an application to amend the application to include a claim of wrongful dismissal. He said: -

The amendment was never made and one cannot consider the question of abuse on the assumption that there was an amendment. It would be to speculate to say that if the application had been considered it would have been granted and to approach an argument based on abuse or res judicata as though it had been. Unless and until the application was amended there was no contractual claim before the Tribunal for damages for wrongful dismissal.

69. Finally, and largely for reasons he had already elaborated, Sir Edwin Jowitt rejected what he described as a "rolled up plea" by Enfield relating to Ms Sivanandan's litigation conduct. He accordingly agreed with the Master's decision, and dismissed both the appeal and the cross appeal from it.

Ms Sivanandan's application for permission to appeal

70. For Ms Sivanandan, Mr. Richard O'Dair accepted in argument before this court that if the correct factual analysis was that Ms Sivanandan had been dismissed on 11 December 1996 (or if her contract had otherwise come to an end on that date) both the Master and Sir Edwin Jowitt had been right to strike out paragraph 19.1 of the Particulars of Claim and the damages flowing from it identified in paragraph 20.5. Despite this proper concession, and notwithstanding the plethora of evidence to the contrary, Mr. O'Dair attempted to persuade us that both the Master and Sir Edwin Jowitt had been wrong on this point. He advanced three prospective grounds of appeal. They were as follows: -

(1) the judge's decision depended upon a concession by Ms Sivanandan's counsel that the effect of an acceptance of a repudiatory breach related back to the moment of repudiation. This had been accepted by the judge, but was erroneous;

alternatively:

(2) the judge's decision was based on a misapprehension about what must be done by an employee before a repudiatory breach of a contract of employment will bring that contract to an end; alternatively, the judge did not find the facts necessary to justify a holding that the contract had come to an end; and

(3) the decision of the judge should be set aside because it was unjust because of a serious procedural irregularity namely that the case was not apt for disposal without hearing oral evidence.

71. In my judgment, none of these grounds is even remotely sustainable. In the event, Mr. O'Dair did not pursue the third, nor did he seek to resurrect Ms Sivanandan's claim under the Human Rights Act or her claim for damages in relation to her reputation and standing.
72. Mr O'Dair's first argument involved resiling from an agreement made by his predecessor before Sir Edwin Jowitt (recorded in paragraph 25 of his judgment and set out at paragraph 61 above). Leaving on one side whether it is properly open to him to do so, it seems to me that all the judge was saying in paragraph 25 of his judgment was that if Ms Sivanandan had accepted Enfield's repudiation (for example by taking proceedings in the Employment Tribunal asserting that she had been dismissed on 11 December 1996), then the contract of employment ceased to be in existence on that date, and Ms Sivanandan could not rely on any breach the implied duty of mutual trust and confidence to found her case for damages for injury to her health which, she accepted, occurred later. Furthermore, her claim for loss of earnings and pension rights was thereby limited to the more narrow basis pleaded in paragraph 19.2 of the particulars of claim.
73. It does not seem to me to be any different whether one expresses the point in this way, or if one expresses it in terms of the two authorities to which the judge refers in paragraph 25 of his judgment, namely Gunton v London Borough of Richmond [1981] Ch. 448 (Gunton) and Boyo v London Borough of Lambeth [1995] IRLR 50 (Boyo).
74. In Gunton the plaintiff was told that his contract of employment would terminate in a month. However, the relevant disciplinary procedures, which would have enabled the council lawfully to dismiss the plaintiff, had not been undertaken. The plaintiff obtained a declaration from the judge that the notice of dismissal was ineffective lawfully to determine the contract. The judge ordered an enquiry as to damages on the basis that the plaintiff was entitled to remain in the council's employment until retirement age unless lawfully dismissed. On the council's appeal, this court held that the plaintiff had been wrongfully dismissed, and whilst an unlawful repudiation of a contract of employment which was not accepted by the innocent party did not result in the automatic termination of the contract, (a) the plaintiff had accepted the council's repudiation; and (b) the fact that he had been dismissed, albeit wrongfully, meant that it was not open to him to assert that he was still employed. His claim for damages, accordingly, was not open-ended, but was limited to those sustained by him until the expiration of one month's notice, commencing on the day when the proper disciplinary procedure, if followed, could have been concluded.
75. In Boyo, the plaintiff was suspended from his employment, having been arrested on serious criminal charges. The council wrote to him making it clear that they regarded his employment as being at an end. They also ceased to pay him. Following the dismissal of the criminal charges, the plaintiff brought an action against the council claiming arrears of salary. The judge found that the council had repudiated the plaintiff's contract; that the contract came to an end when the plaintiff accepted the repudiation by committing himself to a contested action, but that the damages were restricted to his contractual notice entitlement plus a reasonable period for carrying out the appropriate disciplinary procedures – assessed by the judge at five months. This court dismissed by the plaintiff's appeal and the council's cross appeal.
76. Mr. O'Dair attempted to escape from Gunton and Boyo by relying on the line of authority culminating in the decision of the House of Lords in Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and another [2004] 3 WLR 322 (Eastwood & McCabe) The argument was that if, contrary to Ms Sivanandan's primary case, she did accept Enfield's repudiatory breach, that acceptance did not extinguish a cause of action based on a breach of the implied term of trust and confidence committed whilst the contract was in force.
77. I do not think Eastwood & McCabe assists Ms Sivanandan. Both were cases in which the claimants had a cause of action based on their employers' breach of the implied term of trust and confidence, which both pre-dated and was independent of their subsequent claims for unfair dismissal. The House of Lords held that, where an employee had, prior to his unfair dismissal, whether actual or constructive, acquired a common law cause of action against his employer in respect of the employer's failure to act fairly towards him such that it could be said to exist independently of his subsequent dismissal, and financial loss had flowed directly from that failure, he could, subject to the rule against double recovery, bring an action at law in respect of that loss, and such action was not barred by the availability of a claim in the Employment Tribunal under the unfair dismissal legislation.
78. In my judgment, Eastwood & McCabe has nothing to do with paragraph 19.1 of the Particulars of Claim, or the damage alleged to flow from it. Paragraph 19.2 is plainly based on Gunton; this neither the Master nor Sir Edwin Jowitt struck out. The simple answer to the point is that Ms Sivanandan's case in paragraph 19.1 cannot survive the legitimate, indeed inevitable, finding of fact by both the Master and Sir Edwin Jowitt that she had persistently asserted that she had been dismissed on 11 December 1996. After that, the relationship of trust and confidence ceased to exist. Furthermore, at no point had she suggested that her physical and mental ill-health had pre-dated her dismissal, or that it had been caused by Enfield's behaviour prior to her dismissal, a point noted by Sir Edwin Jowitt in the passage from his judgment which I have cited at paragraph 61 above.
79. In support of the proposition that Ms Sivanandan continued in Enfield's employment after 11 December 1996, Mr. O'Dair sought to rely on a letter written by an Enfield Councillor, Mr. Graham Devitt, to the Chair of Corporate Services at Enfield, Mr. Andrew Stafford, on 26 November 1997, to which Ms Sivanandan refers in paragraph 16 of the particulars of claim (see paragraph 52 above). This followed the Employment Tribunal's decision on 24 October 1997 that Ms Sivanandan had been employed by Enfield. In this letter, Councillor Devitt states his understanding that Ms Sivanandan had never been dismissed by Enfield; that she was still one of its employees and was entitled to be paid as such. It also raises the question of her re-instatement.
80. In my judgment, this letter cannot assist Ms Sivanandan. What Councillor Devitt thought is plainly not evidence and is irrelevant. In any event, in my judgment, he was wrong. The evidence is overwhelming that Ms Sivanandan did not remain Enfield's employee after 11 December 1996. Apart from Ms Sivanandan's assertions to that effect throughout the Employment Tribunal proceedings, the Employment Tribunal had found as a fact on 23 January 1998 that Ms Sivanandan had been dismissed on 11 December 1996 (see paragraph 30 above).
81. Mr. O'Dair's alternative ground (2) fails for the same reason. However, Mr O'Dair sought to persuade us to the contrary by reference to the decision of this court in Peyman v Lanjani and others [1985] Ch. 457 . In my judgment, this case does not assist him. The issue in the case was whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his election if, when he made it, he was aware of facts which entitled him to rescind the contract, but had no knowledge that those facts gave him the right in law to rescind. This court held, for the purposes of the common law doctrine of election, that where a person has an unrestricted choice between two mutually inconsistent courses of action which affect his rights, knowledge of the right to elect is a pre-condition of making an effective election, and there can be no effective election unless the person making it knows his legal rights as well as the facts giving rise to those rights.
82. Peyman v Lanjani was a case on highly unusual facts, and was plainly correctly decided, but speaking for myself, I find it impossible to apply any of the statements in the judgments relating to the general principles underlying the common law doctrine of election to the straightforward facts of the instant case. In any event, what Peyman v Lanjani decides is that a person cannot elect to affirm a contract in the face of a repudiatory breach by the other party without knowledge that he has the right to choose whether or not to affirm. This is plainly correct. It would clearly be unfair to conclude that a party had elected to go on with a contract when he did not know that he had the right to rescind.
83. However, Peyman v Lanjani is not, in my judgment, authority for the proposition that the same rule applies to one party's acceptance of the other party's repudiation of the contract. If the innocent party accepts the breach and sues for damages, the contract is at an end. That is plainly what happened in this case. Moreover, this is not unfair, since the innocent party is given a proper remedy, and will normally wish to take advantage of it, as Ms Sivanandan did.
84. It is now said that Ms Sivanandan should not be held to that objective acceptance of Enfield's repudiation because she did not realise that she had an alternative course of action which may have served her better, namely to affirm the contract and sue for lost wages. But that assertion ignores the fact that the contract was in any event brought to an end by her dismissal on 11 December 1996. If Ms Sivanandan made an error in accepting Enfield's repudiation and taking proceedings in the Employment Tribunal (and for my part I do not think she did) it was not an error based on ignorance of her legal rights as applied to the facts, as in Peyman v Lanjani: it was a decision to bring the contract to an end as a matter of fact in order to pursue an appropriate remedy. This is different from using one party's legal knowledge as one of the matters to take into account in determining whether or not a contact has been affirmed.
85. Although the argument was not pressed, I also reject Mr. O'Dair's submission that the apparent discrepancy between Ms Sivanandan's acceptance of her dismissal and other statements of her belief that she remained employed by Enfield required investigation by oral evidence, and thus was not a suitable subject for an application to strike out. I equally reject Mr. O'Dair's argument that it would be open to the court to hold at trial that Ms Sivanandan's goal throughout was to establish the identity of her employer, and retain her status as an employee.
86. The pleading in paragraph 19.1 of the Particulars of Claim that "the Claimant has never accepted (Enfield's) breach as bringing the contract between herself and (Enfield) to an end" with the result that Enfield was still obliged to provide salary and work for Ms Sivanandan flies in the face of the facts which both the Master and Sir Edwin Jowitt were entitled to find. The cross-appeal based on paragraph 19.1 and the damage allegedly flowing from it is, in my judgment, hopeless. I would, therefore, unhesitatingly refuse Ms Sivanandan permission to cross appeal.

The arguments advanced in this court on Enfield's appeal

87. For Enfield, Miss Daphne Romney divided her abuse of process argument into two main strands. The first depended upon the proposition that Ms Sivanandan had not withdrawn her breach of contract claim before the Employment Tribunal, and that as a consequence it was struck out with the remainder of Ms Sivanandan's claims by the Stratford Tribunal on 6 September 2000. The claim was, accordingly, res judicata, and it was an abuse of process to seek to revive it by the present claim.
88. Ms Romney's alternative argument was that even if Ms Sivanandan had withdrawn her claim for breach of contract in the Employment Tribunal proceedings, the relief sought in the current proceedings was identical, so that it remained an abuse of process to proceed with it.
89. Ms Romney also submitted that the judge had been wrong to hold that the principles identified by this court Sajid applied to the facts of the instant case. She argued that the decision of this court in Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481 (Sheriff) did apply, as did paragraph 34 of the well-known judgment of Chadwick LJ in Securum Finance Ltd v Ashton and another [2001] Ch 291 at 309.
90. In support of her primary submission, Ms Romney accepted that the Employment Tribunal procedural regulations in force at the time did not specifically permit the withdrawal of part of a claim. The regulations only provided that the Tribunal could dismiss an originating application where the applicant gave notice of withdrawal. However, in practice, specific parts of a multi-faceted application could be, and were withdrawn. The method by which this was achieved was an expression by the court that the application had been "dismissed on withdrawal". In other words, the court had actively to dismiss the proceedings (or a part of the proceedings) for the withdrawal to be effective.
91. Ms Romney pointed to the order relating to Ms Sivanandan's claim for unfair dismissal made by the Employment Tribunal on 23 January 1998, which was "dismissed on withdrawal". She pointed to the fact that in the same order, the Employment Tribunal determined that it had "jurisdiction to consider the applicant's claim for damages for breach of contract". Ms Romney also relied on the fact that on 6 August 2000, Ms Sivanandan wrote to the Employment Tribunal seeking to add a claim of wrongful dismissal "in addition to the breach of contract claim that already exists". On 15 August 2000, the Employment Tribunal identified Ms Sivanandan's application to amend as one of the issues to be determined before the Tribunal moved to substantive issues. All this, Ms Romney argued, demonstrates that the claim had not been withdrawn.
92. As to Ms Sivanandan's note of her exchanges with the Chairman on 23 January 1998 , Ms Romney submitted that even taking the note at face value, it did not amount to an unequivocal withdrawal, nor were the exchanges understood to be so by the Employment Tribunal: see paragraphs 5 and 6 of the extended reasons given on 10 February 1998 and set out at paragraph 30 above.
93. Further or alternatively under this head, Ms Romney argued that the current claim was an abuse of process for the reasons given by Chadwick LJ in Securum Finance v Ashton. Ms Sivanandan should not be permitted to re-litigate her claim for breach of contract in the circumstances appertaining to this case. If it is an abuse to re-litigate a case where it has been struck out for non-contumelious delay, Ms Romney submitted, it was all the more an abuse to re-litigate it where the claim was struck out by reason of Ms Sivanandan's vexatious and abusive conduct of the proceedings before the Employment Tribunal.
94. In the alternative, Ms Romney argued that if Ms Sivanandan did withdraw her claim for breach of contract so that it was not struck out in September 2000, it remained an abuse to pursue the claim now. All the requisite elements of the present claim were included in the proceedings before the Employment Tribunal, and the claims were therefore identical. Sir Edwin Jowitt was wrong not to apply the principles explained in Sheriff. Ms Sivanandan could have had all her claims for compensation properly determined in the Employment Tribunal. Sir Edwin Jowitt had been wrong in paragraph 74 of his judgment to dismiss this argument. His reasoning was that where "a woman has suffered a loss by reason of a breach of contract, it is not an abuse for her not to include her claim for damages for breach under the umbrella of another complaint which she must win in order to avoid the cap on contractual damages when in civil proceedings there is not and success is not dependent on proving the other complaint". That reasoning was wrong. Sir Edwin Jowitt was also wrong to hold that Sajid made it quite clear that for Ms Sivanandan to withdraw her claim from the Employment Tribunal in order to make a separate claim in civil proceedings was not an abuse.
95. Ms Romney accepted that it is not an abuse where appropriate steps are taken by a litigant not to burden the courts with duplicated litigation. But Sajid, she argued, was not authority for the proposition that such conduct can never be an abuse. The court must look at the facts of the individual case. Sajid and Sheriff were not mutually inconsistent.
96. Ms Romney also pointed out that Sajid was not a case of race discrimination, which brought with it a right to uncapped compensation. The claimant in Sajid was obliged to withdraw his claim from the Employment Tribunal and re-issue it in the County Court because his claim was worth more than the Tribunal limit of £25,000. By contrast, Ms Sivanandan was under no such constraints, since in her claims under RRA 1976 she was able to claim uncapped compensation.
97. Sir Edwin Jowitt was also wrong, Ms Romney submitted, to give no weight either to the fact that by her letter of 6 August 2000, Ms Sivanandan had signalled an application to reintroduce her wrongful dismissal claim, or to the argument that she failed because the whole claim was struck out. Sir Edwin Jowitt had held this was irrelevant because the application to amend was never in fact made, and its outcome was speculative. However, this ignored the fact that Ms Sivanandan had again sought to have the case heard in the Employment Tribunal, despite the financial limit; it also demonstrated that she had repeatedly vexed Enfield with the same claim in 1997, 2000 and now 2003.
98. Finally, Ms Romney argued that the judge had not given proper consideration to the judgment of Stuart-Smith LJ in Sheriff. In that case, the claimant did not need to prove race discrimination to succeed in tort, nor could he have claimed damages for personal injuries or negligence in the employment trirbunal. Despite this, Stuart-Smith LJ held that the same issue lay at the heart of both proceedings. Similar consideration lay at the heart of Ms Sivanandan's claims. She emphasised that race discrimination was a central feature of her present claim, and had elected to plead it on that basis. The relief she sought would have been the same. The fact that there was a financial limit on the breach of contract claim in the Employment Tribunal was irrelevant: there was an identical claim for compensation, and to bring it was abuse.

The argument for Ms Sivanandan

99. In his skeleton argument, Mr. O'Dair described Ms Sivanandan as an employee who had been denied, for seven years, the right to her contractual grievance and disciplinary procedure. She was, he argued, denied her right to be heard before she was "purportedly dismissed" by an organisation (EREC), which was not, and never had been, her employer.
100. Following our rejection of Ms Sivanandan's application for permission to appeal, and our rejection of her primary case that her contract of employment remained in existence, Mr. O'Dair was effectively limited in his argument to an adoption of the judge's reasoning, which I have set out in paragraphs 60 to 69 above. As to the withdrawal of Ms Sivanandan's claim for wrongful dismissal from the Employment Tribunal, Mr O'Dair submitted that this was a strikeout application, and that Ms Sivanandan's case was plainly arguable. As to abuse of process, Sajid was clear authority for the proposition that it was not an abuse of process to withdraw a claim from the Employment Tribunal if the claim exceeded the statutory limit. Sheriff was clearly distinguishable. In that case, the two claims were almost identical. In the instant case, the claim in the Employment Tribunal was of race discrimination and victimisation; the High Court proceedings related to the proper disciplinary procedures and breaches of the implied term as to trust and confidence. Either claim might succeed even if the other failed. For example, it might be found that the proper procedures were not followed, but that this had had nothing to do with race.

Discussion and analysis

101. In my judgment, Miss Romney has correctly identified the two questions raised by this appeal. The first is whether or not Ms Sivanandan's claim for breach of contract was withdrawn from the Employment Tribunal. The second, on the basis that the breach of contract claim was withdrawn, is whether or not the claim in the Queen's Bench proceedings is, nonetheless, an abuse of process. Both questions, I think, have to be addressed in the context of the various authorities to which the court was referred.
102. The underlying principle is clearly expressed by Mummery LJ in Sajid. At [2002] IRLR 113, paragraph 20 of his judgment, he said: -

I first approach this matter on the basis of principle. The underlying policy of cause of action estoppel and related doctrines, which are usually classified under the heading res judicata, is that of finality in litigation and the avoidance of the multiplicity of proceedings. Save in special circumstances, it is contrary to public policy and may be an abuse of the process of the court to attempt to reopen in new proceedings a case which has already been litigated and finally determined by a court or tribunal in proceedings between the same parties or issues which could have been litigated properly between the parties in relation to the subject-matter of the earlier litigation. This doctrine embodies, in my view, a principle of justice, not just policy. In the absence of special circumstances it is unjust for a party who spent time and money in obtaining a final determination of a claim or an issue in a claim to be faced with fresh proceedings from the other party seeking to re-litigate the same cause of action or the same issue.

103. In Barber v Staffordshire County Council [1996] IRLR 209, the applicant was a part-time primary school teacher. She made an application for a redundancy payment in the Employment Tribunal, but withdrew it shortly before the date fixed for the hearing because she was advised by her union that she was unable to satisfy the qualifying criteria for bringing such a claim. Her claim was thereupon formally "dismissed on withdrawal by the applicant". Approximately a year later, the House of Lords decided that the rights of part-time workers were different from what they had previously been thought to be. In those circumstances, Mrs Barber sought to bring fresh proceedings in the Employment Tribunal. They were the same proceedings she had brought previously, relying on the same facts and making the same claim against the same former employer. Both the EAT and this court held that the principle of res judicata applied to prevent the applicant making a further claim. The fact that the Employment Tribunal had dismissed the applicant's claim without any adjudication on its merits was, of itself, no bar. The Employment Tribunal had adjudicated on her claim by dismissing it.
104. Sheriff extends the principle. Here, the applicant brought proceedings in an Employment Tribunal complaining of race discrimination. The case settled during an adjournment when it was part heard. The applicant received a payment and entered into an agreement which stated: -

The applicant accepts the terms of this agreement in full and final settlement of all claims, which he has or may have against the respondent arising out of his employment, or the termination thereof being claims in respect of which an industrial tribunal has jurisdiction.

105. The Employment Tribunal thereupon issued a formal decision dismissing his application on withdrawal by the applicant. The applicant later brought a claim in the Count Court for damages for personal injuries. The particulars of his claim were almost identical to the allegations made by the applicant in the Employment Tribunal proceedings. The County Court proceedings were struck out as an abuse of process by a Recorder, whose decision was upheld by this court.
106. Giving the leading judgment, Stuart-Smith LJ approved the reasoning of the Recorder, who had said: -

Since, therefore, in this court the plaintiff brings a case in identical terms to the case which he presented at the industrial tribunal, and since within the jurisdiction of the tribunal at the time the case was heard there was power to award damages for injury to feelings, which are a euphemism for mental suffering, mental injury, personal injuries of a psychiatric nature, and since he compromised that settlement in the terms of paragraph 4, to which I have already referred, then he has compromised his rights in regard to the damages that flow from his psychiatric condition caused, as he alleges, by the defendant, and that is precisely the issue which is before the county court. Since, therefore, that matter has been litigated before the industrial tribunal and compromised, it is, in my view, an abuse of process of the county court that the matter should be brought here, and I therefore find that the proper course to follow is to strike it out as such an abuse.'

107. By contrast, however, the decision of this court in Sajid makes it plain that it is not an abuse of process if (1) an applicant brings proceedings before an Employment Tribunal for damages for breach of contract, unfair dismissal and a redundancy payment; (2) the claim for breach of contract is in excess of the Employment Tribunal limit of £25,000; and (3) the applicant makes it clear in the application to the Employment Tribunal that he reserves the right to rely on the findings of the Tribunal in order to bring proceedings in another court to recover the excess.
108. In Sajid, the applicant's solicitors brought proceedings in the High Court for breach of contact, and wrote to the Employment Tribunal, specifically requesting that the breach of contract claim in the Employment Tribunal be withdrawn, although the applicant made it clear that he intended to proceed with his claims for unfair dismissal and a redundancy payment. The respondent's plea of res judicata as a defence to the High Court proceedings failed, and the judge's decision was upheld in this court. In the course of his judgment, Mummery LJ said: ([2002] IRLR 113 at paragraphs 16 and 17) :

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 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.

17. The claim was removed from the Employment Tribunal to the High Court. That was a different forum. It was not re-litigation of a cause of action, which had been litigated and finally determined in the Employment Tribunal.

109. As Laws LJ pithily put it in the same case: [2002] IRLR 113 at paragraphs 22 and 23: -

….. the policy, which justifies the doctrine of cause of action estoppel, is the need to prevent multiplicity of legal proceedings being raised upon the same issue. If this court were to allow this appeal, far from supporting that policy we should undermine it. The respondent's common law claim in the tribunal (being withdrawn) was, on 6 May 1999, dismissed upon the very premise and for the very reason that it should not be litigated there but in another forum. That dismissal thus supported the policy underlying the cause of action estoppel to which I have referred.

23 (Counsel for the appellant's) argument, if accepted, would entail the conclusion that a party, acting as the respondent did here would find himself trapped by the very doctrine to which he had himself been loyal, forever barred from having his claim for damages over £25,000 litigated at all. If the law produced such a result we should be ashamed of it. But it does not. We do not allow salutary principles to be corrupted into instruments of injustice.

110. In the light of these authorities, I have come to the clear conclusion that on the facts of this case Ms Sivanandan's claim for breach of contact was not withdrawn from the Employment Tribunal. It was therefore struck out with the remainder of her claims on 6 September 2000. It is, accordingly, res judicata and cannot be revived.
111. I reach this decision by examining each stage of the process. I have already set out (in paragraph 14 above) the terms in which the claim was made in the attachment to Ms Sivanandan's form IT1. On 27 October 1997 (reasons promulgated on 21 November 1997) the Employment Tribunal decided that Enfield was Ms Sivanandan's employer. This removed the reason for the County Court proceedings. On 12 January 1998, Ms Sivanandan stated an intention to apply to the County Court to add a claim of wrongful dismissal and breach of contract "for the reason that the dismissal was in breach of a contractual procedure" (see paragraph 28 above). She never, of course, actually applied to the County Court for permission to amend, nor did she give any reasons for invoking the County Court jurisdiction. At best, therefore, in my judgment, the letter of 12 January 1998 and its enclosures are evidence of an intention on her part to apply to the County Court for permission to amend. There was at this stage no mention of discontinuing or withdrawing the breach of contract claim from the Employment Tribunal.
112. On 23 January 1998, the Employment Tribunal sat to consider the matters left over from 24 October 1997. I am quite clear that Ms Sivanandan did not withdraw her breach of contract claim from the Employment Tribunal on that day. It is clear from the record that she did withdraw her claim for unfair dismissal, which, as a consequence, the Tribunal duly dismissed. Both the recorded decisions made on that day (recorded at paragraph 29 above), and paragraphs 5 and 6 of the extended reasons given on 10 February 1998 (recorded at paragraph 30) are quite inconsistent with any withdrawal of the breach of contract claim. To the contrary, the Employment Tribunal rejected the argument put forward by Enfield that the Employment Tribunal did not have jurisdiction to entertain the claim. Even taking Ms Sivanandan's note of her exchanges with the Chairman at face value, it is, at best, in my judgment, an expression of a possible intention.
113. It is also, in my judgment, highly significant, that on 23 January 1998, the very day on which it is said Ms Sivanandan withdrew her breach of contract claim, she sought and obtained a correction to the Chairman's extended reasons (promulgated on 21 November 1997) in which the Chairman had recorded the existence of a claim for breach of contract by Ms Sivanandan in her Form IT1 as "arising out of the failure to give notice". As I pointed out in paragraph 25 above, Ms Sivanandan, on a review of the reasons, obtained a correction from the Chairman by the deletion of the words I have placed in quotation marks. This seems to me wholly inconsistent with a contemporaneous withdrawal of the breach of contract claim.
114. The next step was the withdrawal of the County Court proceedings. Miss Spicer was plainly right (and Ms Sivanandan agreed) when she asserted in paragraph 6 of her affidavit (paragraph 36 above) that Ms Sivanandan had no claim against Enfield under RRA 1976, section 20. All her race discrimination and victimisation allegations plainly fell within the Employment Tribunal proceedings. A strike out of the County Court proceedings was thus inevitable.
115. It is also, I think, significant, that Ms Spicer asserts in paragraph 8 of her affidavit (also set out at paragraph 36 above) in relation to Ms Sivanandan's proposed amendment that "an identical claim had already been made within the Industrial Tribunal proceedings". As I pointed out in paragraph 37 of this judgment, Enfield appear to have regarded the contractual claim in the Employment Tribunal as embracing damages for wrongful dismissal.
116. In any event, Ms Sivanandan never made an application to the County Court to amend the particulars of claim. Once again, therefore, her note of her exchange with Enfield leading to the withdrawal of the County Court proceedings (paragraph 38 above) is, at its highest, an expression of her intention in due course to bring proceedings for wrongful dismissal in the County Court. Moreover, her note is inaccurate. The breach of contract claim in the Employment Tribunal proceedings was not limited to "wrong info given" as stated in the first substantive paragraph of the note: it included "unfair and unreasonable application of grievance and disciplinary procedures, breaches of principles of natural justice and breaches of good employment and equal opportunities procedures and practices".
117. As at 12 May 1998, therefore, when Ms Sivanandan was given permission to withdraw the County Court proceedings, there is nothing in my judgment to suggest that the breach of contract claim had been withdrawn from the Employment Tribunal proceedings. This, to my mind, is confirmed by the next important event, which supports the proposition that Ms Sivanandan regarded her contractual claim in the Employment Tribunal as alive. In August 2000, she wrote to the Employment Tribunal making it clear that she intended to amend her originating application "from the original "unfair dismissal" claim (which had, of course, already been dismissed on withdrawal) to a "wrongful dismissal" claim in respect of her dismissal by the wrong party, "in addition to the breach of contract claim which already exists".
118. One can, of course, interpret this letter is a number of ways. I remind myself that Ms Sivanandan is not a lawyer. I read the letter as her intention to claim damages for wrongful dismissal in the Employment Tribunal proceedings. At its lowest, however, it is clear that Ms Sivanandan regarded her breach of contract and wrongful dismissal claims as alive for the purposes of the final hearing on 5 September 2000.
119. It is, of course, the case that the Employment Tribunal never adjudicated on the merits of Ms Sivanandan's breach of contract claim, nor did it adjudicate on the extent to which it would permit her to pursue it. However, it had held on 23 January 1998 that it had jurisdiction to entertain the claim. That decision was not appealed and remained extant on 5 September 2000. In my judgment, therefore, the breach of contract claim was never withdrawn and was dismissed by the Employment Tribunal on 6 September 2000.
120. This leaves the question as to whether or not Ms Sivanandan can bring herself within the principle stated by this court in Sajid. I do not think she can. As the facts of the case make clear, Dr. Sajid's claim in the Employment Tribunal was formally withdrawn and dismissed on the clear basis that it exceeded the Employment Tribunal limit and would thus be litigated elsewhere. The object was to avoid duplication of proceedings The critical distinction, it seems to me, between the instant case and Said is that in the latter there was a formal withdrawal of the claim ordered by the Employment Tribunal for reasons which the applicant made clear, and which did not offend against the principle that there should be no duplication of proceedings.
121. In the instant case, Ms Sivanandan's breach of contract claim was never formally withdrawn, and her attempt to re-litigate it in the Queen's Bench proceedings is plainly a duplication of proceedings. Furthermore, I have to say that given the overall litigation history of the Employment Tribunal proceedings, I am confident that had the Employment Tribunal erroneously failed to record Ms Sivanandan's formal withdrawal of the breach of contract claim on 23 January 1998 on the basis that she was to pursue it in the County Court or the High Court, she would have asked the tribunal to review its decision, and would have pointed out the error: - see, in this context, her successful application for a review of the Employment Tribunal's error in relation to the claim under ERA 1996 section 70.
122. Furthermore, although by paragraph 11 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 an Employment Tribunal is required to "seek to avoid formality in its proceedings", I am in no doubt that on a matter as important as the withdrawal of a claim, or part of a claim, a clear procedural discipline is required. Thus, in my judgment, if a claim is to be withdrawn from the Employment Tribunal on the basis that it is to be pursued elsewhere, as in Sajid, the position must be made clear, and it would be desirable for the Employment Tribunal to adjudicate by making an order dismissing the claim on withdrawal. That would mean that either on the face of the order itself, or in the record kept by the Employment Tribunal, there would be unambiguous evidence of the circumstances in which, and the reasons for which, the application was withdrawn. In my judgment, expressions of intent are insufficient. It is of the utmost importance that the issues on which an Employment Tribunal is being asked to adjudicate are clearly defined, and good practice requires that if a claim is to be withdrawn, both the fact that it is being withdrawn and the reasons for its withdrawal should be clear.
123. My reasons for parting company from the Master and Sir Edwin Jowitt will, I hope be apparent from what I have already said. In my judgment, Sir Edwin Jowitt gives Ms Sivanandan's note of the hearing on 23 January 1998 a weight which, even taking it at face value, it cannot bear. Furthermore, he only records the passage from Ms Sivanandan's note relating to the period after lunch. In the pre-lunch discussion it is clear that Ms Sivanandan did formally withdraw her unfair dismissal claim (a fact which is duly recorded in the Employment Tribunal's order) and Enfield's argument on the breach of contract point is recorded. The chairman's finding is that the Employment Tribunal had jurisdiction, and that was duly recorded in the order. Against this background, and in the light of the history I have set out at length, I am simply unable to agree with Sir Edwin Jowitt that Ms Sivanandan's note of the exchanges between herself and the chairman has "the two requisite features of clarity" (that is, the intention to withdraw and the ambit of the withdrawal) and that "it operated to withdraw her claim for damages for loss of earnings and pension rights from her application to the tribunal".
124. In my judgment, Sajid, which is an entirely appropriate exception to the general res judicata rule, is readily distinguishable. Above all, in Sajid there was an order of the Employment Tribunal dismissing the claim on it being formally withdrawn for a clear, unambiguous and meritorious purpose.

Abuse of process

125. It follows that Ms Romney is, in my judgment, entitled to succeed on her first argument. That is, of course, sufficient to dispose of the appeal. I would not, however, speaking for myself, wish to leave the matter there, because I have formed the clear view that, even if I am wrong on the first point, the Queen's Bench proceedings are an abuse of process and should be struck out as such.
126. I am, of course, acutely aware that Ms Sivanandan never filed a statement in the Employment Tribunal proceedings setting out her case, or gave discovery. She should, of course, have done both. However, despite the absence of a statement, I reach my conclusion as to abuse of process by going back to Ms Sivanandan's form IT1 and identifying the issues, which she raised.
127. It is in my judgment quite clear that Ms Sivanandan's principal complaint in the Employment Tribunal proceedings was one of race discrimination and victimisation. There is, I think, abundant evidence of this, and it is in my judgment significant that the first answer which she records herself as giving to the Chairman of the Employment Tribunal on 23 January 1998 (see paragraph 31 above) is that the principal reason for her dismissal was race discrimination. .
128. I note that in the details of the complaint attached to her Form IT1, she says in terms that she was dismissed following a series of complaints, which she made against EREC (its director and executive committee) and Enfield. Those complaints were about racial discrimination and possible breaches of RRA 1976. Over two pages of single-spaced A4, Ms Sivanandan lists in great detail the persons to whom she complained and the issues about which she complained.
129. Furthermore, Ms Sivanandan makes it very clear in the attachment to her Form IT1 that, in her view, her suspension and subsequent dismissal were acts of race discrimination and victimisation. She says in terms: -

I believe that the manner in which my complaints were dealt with, in comparison to the complaints of others against me, was racially discriminatory and constituted victimisation, contrary to RRA 1976.

I believe that the respondents acted unreasonably and unfairly in the procedures adopted to suspend and dismiss me, in the manner of my suspension and in relation to the complaints leading up to the decision to dismiss me and thereafter. I believe that there was no sufficient reason for my dismissal.

I believe that after my suspension, the EREC Director, Employment Officer, Chair and EC (executive committee) discriminated against me and victimised me as a result of my complaints and the complaints of EREC clients and others who raised the issue of, or complained about my "disappearance" or suspension.

I believe that after my dismissal, the EREC director and EC continued to discriminate against me and victimise me, by not responding to my letters and complaints and not responding to the complaints of EREC clients and others who made enquiries or complaints about my dismissal.

130. Comparing the attachment to the Form IT1 with the particulars of claim in the Queen's Bench proceedings, I am struck by a number of similarities. In paragraph 4 of the particulars of claim, Ms Sivanandan relates conversations which she had with one of Enfield's officers, a Mr. Stan Barker, in which she related her "concern" about a number of matters, which mirror those in the Form IT1. In paragraph 6 she says: -

On 5 September 1996, Ms Bhatia (Director of EREC) informed the Claimant that Mr. Barker had complained to her about the Claimant. The Claimant was led to believe that both the Defendant and EREC viewed her as a "troublemaker" for raising the grievances referred to above and for criticising the lack of professionalism at EREC.

131. On 11 October 1996, Ms Sivanandan was summoned to a meeting and told she was being suspended following complaints, which had been made about her by senior officers within Enfield. She was told the complaints would be investigated, but was not told what they were. In paragraphs 11 of the particulars of claim, Ms Sivanandan pleads: -

The Claimant was informed of the complaints made against her by letters from EREC dated 15 and 29 November 1996. These letters evidenced the fact that the complaints related to her handling of the matters in relation to which she had raised grievances. All of the Defendant's staff that complained about the Claimant only did so after the Claimant had already lodged grievances against or raised concerns abut either themselves of their departments. Due to information, which subsequently came to the Claimant's attention following her suspension, the Claimant lodged further grievances.

132. In my judgment, Ms Sivanandan's Form IT1 and its attachment fully represent her case as it was on 8 March 1997. Whether or not it had any merit is, for the moment, immaterial. She had been dismissed. She could not claim unfair dismissal save on one very limited basis. She could also make a claim for breach of contract. But above all what she could claim – and what her case was all about, in my view - was that she had been the object of race discrimination and victimisation. The latter, in particular, she believed had brought about her dismissal. She had complained about EREC and about Enfield: the nature and volume of her complaints had brought complaints about her in return: these had led to her suspension and dismissal. That was the victimisation.
133. In my judgment, the two critical distinctions between the instant case and Sajid (apart from the fact that in Sajid there was a formal order dismissing the breach of contract claim on withdrawal) are, in the abuse context, (1) that the facts underlying Ms Sivanandan's claim for racial discrimination and victimisation were the same as those underlying any claim for damages based on breaches of her contract of employment; and (2) that the Employment Tribunal had jurisdiction on her claims under RRA 1976 to award Ms Sivanandan unlimited damages. In my judgment, it was immaterial that in the Employment Tribunal Ms Sivanandan could not claim unfair dismissal. If the Employment Tribunal had found that she had been racially discriminated against, or that the racial victimisation had taken the form of improperly suspending and dismissing her, any damages for either breach of contract or unfair dismissal based on a breach of a statutory obligation would have been subsumed under the claim under RRA 1976.
134. The structure of what Ms Sivanandan was alleging, moreover, fits correctly into the structure of the legislation. If an employee is racially discriminated against and victimised, it is, of course, right that he or she should have an immediate remedy, and not be required to endure a statutory period of continuous employment before a claim can be brought.
135. The initiation of the County Court proceedings on 8 September 1997 (see paragraphs 21 to 23 above) reinforces my view that Ms Sivanandan's claims were in truth for race discrimination and victimisation. She had been in touch with the Commission for Racial Equality, and she was instituting the proceedings to ensure that, if EREC was found to be her employer in the Employment Tribunal proceedings, she would have a claim against Enfield in the County Court for race discrimination and victimisation under RRA section 20.
136. It follows, in my judgment, that all Ms Sivanandan's proper claims were contained within her Form IT1, and it is that document which properly identifies them. It must also, I think, be remembered that the Employment Tribunal had set aside 35 days for the hearing. The prospective length of the hearing illustrates, to my mind, the true nature of the issues being raised.
137. For these reasons, the instant case to my mind is closer to Sheriff than Sajid. If Ms Sivanandan's claim in the Employment Tribunal had proceeded to a hearing, and had Ms Sivanandan established race discrimination and victimisation in the manner of her treatment and dismissal by Enfield, those claims would have embraced the claims relating to breach of contract, and she would have recovered appropriate, and unlimited, damages.
138. In my judgment, the reality is that the Queen's Bench proceedings are an abuse of process because they represent an attempt to re-invent a struck out claim of race discrimination and victimisation as a claim for breach of contract. There is, however, another factor, and it is that, in order to bring the claim, Ms Sivanandan has significantly changed her position. Having asserted throughout the Employment Tribunal proceedings that she had been dismissed, she now says in paragraph 17 of the particulars of claim that she has "at all times maintained that she is still employed by (Enfield)".
139. I am, of course, acutely aware of, and agree with Laws LJ's dictum that salutary principles must not be corrupted into instruments of injustice. In my judgment, it is not unjust to allow this appeal. As I have already stated, all Ms Sivanandan's claims were properly encompassed within her Form IT1. Had she pursued those applications properly, all her rightful claims would have been appropriately adjudicated upon on their merits, and, if her case was meritorious, she would have received appropriate and unlimited damages. She was allowed 35 days of Tribunal time to advance her claims. The result of her conduct of the proceedings was that they were properly struck out. She cannot now, in my judgment, bring any one of those claims forward under a different guise.
140. Once again, I hope that my reasons for departing from the reasoning of the Master and Sir Edwin Jowitt are clear. It is, I think, sufficient, at this point if I say simply that, on the facts as I have set them out, I am unable to agree with the latter's statement in paragraph 78 of his judgment that "on the hypothesis that (her claim in contract for wrongful dismissal) was no longer before the Tribunal when her originating application was struck out, it cannot be said that she was attempting to re-litigate an issue which had already been disposed of". That, in reality, was. I think, precisely what Ms Sivanandan was trying to do.
141. In my judgment, this is not a case to which the principles in Henderson v Henderson (1843) 3 Hare 100 apply for the simple reason that in her form IT1 Ms Sivanandan had brought forward all the claims she had against Enfield and EREC, as well as some which she did not have. It was a comprehensive pleading.
142. Finally, the Queen's Bench proceedings also seem to me to fall fair and square within the spirit of Chadwick LJ's judgment in Securum Finance Ltd v Ashton and another [2001] Ch 291 at 309 when he said:

34. For my part, I think that the time has come for this court to hold that the "change of culture" which has taken place in the last three years - and, in particular, the advent of the Civil Procedure Rules – has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases. The position, now, is that the court must address the application to strike out the second action with the overriding objective of the Civil Procedure Rules in mind – and must consider whether the claimant's wish to have "a second bite of the cherry" outweighs the need to allow its own limited resources to other cases. The courts should now follow the guidance given by this court in the Arbuthnot Latham case [1998] 1 WLR 1426, 1436-1437:

"The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action, and any excuse given for the misconduct of the previous action: see Janov v. Morris [1981] 1 W.L.R. 1389. The position is the same as it is under the first limb of Birkett v. James. In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed."

Conclusion

143. For all the reasons set out above, I would allow this appeal. I would set aside the orders of both Sir Edwin Jowitt and Master Leslie, and I would strike out the Queen's Bench proceedings pursuant to CPR rule 3.4(2)(a) and (b).

Lord Justice Buxton:

144. I entirely agree.
145. Ms Sivanandan's application for permission to appeal was hopeless, and should not have been brought. I can only assume that the judge who gave permission to appeal from the Master did not have properly brought to her attention the repeated assertions by Ms Sivanandan that her employment had come to an end on 11 December 1996.
146. Ms Sivanandan's case as to the pursuit of her claim in contract rests on what allegedly passed between her and the Chairman of the Employment Tribunal at the hearing on 23 January 1998. I have to express very considerable reservations about the way in which this issue has been approached. When a professional judge has settled extended reasons recording a series of decisions, it is unlikely to be appropriate to rely on an unagreed note of doubtful provenance to go behind those reasons: at the least, without consulting the judge, which does not seem to have occurred in this case. But, even if that course is to be adopted, I wholly agree with my lord that when the note is read in its totality it comes nowhere near to justifying the conclusions that the judge drew from it. And that is quite apart from the very many indications, set out by my Lord, that Ms Sivanandan assumed after that date that the tribunal proceedings encompassed the contract claim, and only raised that matter in the High Court when the tribunal proceedings foundered.
147. It was however sought to justify that course by the argument that, to quote the opening words of Mr O'Dair's skeleton argument

"This claim is about an employee who has been denied, for seven years, the right to her contractual grievance and disciplinary procedure"

In truth, far from Ms Sivanandan being denied an opportunity to assert her rights, the Employment Tribunal, in a case where she had not produced any formal witness statement, nonetheless, and more or less on Ms Sivanandan's own assurances, set aside the remarkable period of 35 days for her to pursue her grievances. When by her own conduct she rejected that opportunity, the case was not dismissed without lengthy and anxious consideration by the tribunal; a thorough review by the Employment Appeal Tribunal in a constitution headed by its President; and a further review by a judge of this court. The suggestion that she has been denied her day, indeed very many days, in court under the tribunal system, and for that reason is entitled to pursue exactly the same grievances in the High Court, is one that should never have been made.

Lord Justice Peter Gibson

148. I agree with both judgments.