United Kingdom Employment Appeal Tribunal

APPEARANCES

 

EAT/1100/01 For the Appellant

MISS GEMMA WHITE of Counsel Instructed by: Messrs Thomas Eggar Church Adams Solicitors Sussex House, North Street Horsham West Sussex RH12 1BJ

For the First Respondent For the Eighth and Ninth Respondents For the Second to Seventh Respondents

MR JOHN HENDY One of Her Majesty's Counsel, with MISS MELANIE TETHER of Counsel Instructed by: Messrs Russell Jones & Walker Solicitors 4th Floor, Brazennose Street Manchester M2 5AZ MISS MONICA CARSS FRISK One of Her Majesty's Counsel, with MISS JANE COLLIER of Counsel Instructed by: Office of the Solicitor Department of Social Security New Court, 48 Carey Street, London WC2A 2LS No appearance or representation By or on behalf of the Second to Seventh Respondents

APPEARANCES

EAT/1101/01 For the Appellants

MISS MONICA CARSS FRISK One of Her Majesty's Counsel, with MISS JANE COLLIER Of Counsel Instructed by: Office of the Solicitor Department of Social Security New Court 48 Carey Street, London WC2A 2LS

For the First Respondent For the Eighth Respondent For the Second to Seventh Respondents

MR JOHN HENDY One of Her Majesty's Counsel, with MISS MELANIE TETHER Of Counsel Instructed by: Messrs Russell Jones & Walker Solicitors 4th Floor, Brazennose Street Manchester M2 5AZ MISS GEMMA WHITE Of Counsel Instructed by: Messrs Thomas Eggar Church Adams Solicitors Sussex House North Street Horsham West Sussex RH12 1BJ No appearance or representation by or on behalf of the Second to Seventh Respondents


 


JUDGE PETER CLARK

1. This is an appeal by (1) NHS Executive HQ and Department of Health, respectively Eighth and Ninth Respondents before the Manchester Employment Tribunal and (2) Dr Platt, Seventh Respondent below, against a Decision of a Chairman Mr C J Chapman, sitting alone, refusing to strike out the Originating Application presented by the Applicant, Mr Chaudhary, on 23 December 1998 (the Manchester complaint). That Decision, with Extended Reasons, was promulgated on 21 July 2000.

Background

2. The present Appellants applied to the Employment Tribunal for an Order striking out these proceedings, which we shall refer to as 'the Manchester proceedings', on the grounds of abuse of process, there then being in train proceedings between the same parties in the Southampton Employment Tribunal (the Southampton proceedings).
3. At all relevant times Mr Chaudhary was a registered medical practitioner of Indian ethnic origin, specialising in Urology. He wished to become a Consultant. In December 1995 a new training grade for junior doctors, the Specialist Registrar Grade, was introduced. In April 1996, when employed as a locum Registrar, Mr Chaudhary sought guidance from Dr Platt, the then Regional Postgraduate Dean (Wessex Deanery), as to his position. On 23 July 1996 Dr Platt wrote to Mr Chaudhary informing him that he was not eligible to enter the Specialist Registrar Grade during transition, in part because time spent by Mr Chaudhary in post in the North Manchester Hospital was not recognised by the Specialist Advisory Committee of the Royal College of Surgeons for Higher Surgical Training (SAC; the Fifth Respondent in the Manchester proceedings).
4. In October 1996 Mr Chaudhary appealed against the decision not to award him an NTN (that is, eligibility to enter the Specialist Registrar Grade during transition). That appeal was heard and on 14 January 1997 Dr Platt informed Mr Chaudhary that the appeal had not been allowed. Further correspondence ensued and on 2 December 1997 Mr Chaudhary presented his Originating Application (the Southampton complaint) in the Southampton proceedings, alleging unlawful racial discrimination by the nine named Respondents and based on first the decision communicated by Dr Platt on 23 July 1996 and secondly, the refusal to allow his appeal, communicated by Dr Platt's letter of 14 January 1997.
5. The Respondents took the point that the Southampton complaint was time-barred. That preliminary issue first came before a Chairman sitting alone in Southampton on a day in June or July 1998 and was adjourned to 21 September 1998. On that day the hearing of the time point was further adjourned to allow Mr Chaudhary to obtain new representation.
6. On 28 September 1998 the Specialist Training Authority of the Medical Royal Colleges (STA First Respondent in the Manchester proceedings) wrote to Mr Chaudhary informing him that his application for assessment for entry to the Specialist Register had been unsuccessful.
7. On 1 November 1998 Mr Chaudhary wrote to Dr Platt, enclosing a copy of the STA letter, and contended that on the basis of that letter his time spent in Manchester was recognised for Registrar training in Urology, contrary to that which Dr Platt had said in his earlier letter of 23 July 1996. On 15 December 1998 Dr Platt replied, maintaining that STA recognition for entry to the Specialist Register differed from recognition by SAC. The Manchester complaint specifically refers to that letter, in addition to the earlier history.
8. By their Notice of Appearance the First - Sixth Respondents in the Manchester Tribunal took a preliminary point that the Tribunal had no jurisdiction to hear Mr Chaudhary's complaint. The same Chairman, Mr Chapman, upheld that plea by a Decision promulgated on 28 September 2000. On 20 November 2001 this division of the EAT dismissed Mr Chaudhary's appeal against that Decision (EAT/1410/00).
9. By a Notice of Appearance dated 16 February 1999, the Eighth and Ninth Respondents below foreshadowed an application, subsequently made on 29 March 2000, that the Manchester complaint was an abuse of process, as it raised matters which were the subject of the Southampton complaint.
10. On 9 March 1999 Dr Platt was dismissed from the Southampton proceedings by consent and on 18 March his solicitors wrote to Mr Chaudhary inviting him to withdraw his claim against Dr Platt in the Manchester proceedings. At the time of the hearing before us held on 8 October 2001 no such withdrawal of proceedings had then taken place.
11. On 26 and 29 March 1999 the resumed hearing before the Southampton Tribunal on the time point took place. By a Decision promulgated on 28 May 1999 the Southampton Tribunal ruled that the Southampton complaint was time-barred. An appeal against that Decision by Mr Chaudhary was dismissed by a division of the EAT presided over by Miss Recorder Elizabeth Slade QC on 19 July 2001.

The Chairman's Decision presently under appeal

12. Having considered the submissions of the parties and a number of authorities, against the background to which we have referred, the Chairman, at paragraphs 28-31 of his Reasons concluded that the Manchester complaint was not an abuse of process, taking into account the following factors.

(1) he could not decide, without hearing evidence (none was laid before him on this application), whether the letter from Dr Platt dated 15 December 1998 constituted a reconsideration or a fresh determination by Dr Platt or whether it was a reference back to earlier decisions. He considered that insofar as Mr Chaudhary was relying on that letter in the Manchester proceedings, he was not relying on a matter referred to in the Southampton proceedings.

(2) The Southampton proceedings determined only the issue of whether the Applicant's complaint was in time. It made no findings in relation to the history of the matter.

(3) There was no final determination of the merits in the Southampton proceedings. Cf. Divine-Bortey -v- London Borough of Brent [1998] IRLR 525 (CA). Air Canada -v- Basra [2000] IRLR 683 (EAT).

(4) Mr Chaudhary had a choice as to whether to apply to amend the Southampton proceedings to add the complaint relating to Dr Platt's letter of 15 December 1998 or to start fresh proceedings.

(5) In order to succeed in an application for a strike out it was for the Respondents below (Appellants before us) to show that his exercise of that choice amounted to an abuse. At the time of commencing the Manchester proceedings, which the Chairman regarded as the relevant time, there had been no final determination of the matter by the Southampton Tribunal, let alone the issue of jurisdiction on the time point and thus he was not challenging the Southampton proceedings. It was not an abuse to continue the Manchester proceedings once the Southampton proceedings had been dismissed.

(6) The only basis for a strike out would be, under the principles in Henderson -v- Henderson [1843] 3 Hare 100, if Mr Chaudhary had commenced the Manchester proceedings on the basis of the letter of 15 December 1998 after, rather than before the disposal of the time point by the Southampton Tribunal. That was not the case chronologically. Both options, to commence fresh proceedings or apply to amend the Southampton proceedings were legitimate options. However, it was not appropriate to apply to amend to add an additional allegation which occurred after the Southampton proceedings had been commenced.

(7) Only if the Respondents below had expressly alerted the Applicant to the proposition that he should proceed by way of amendment to the Southampton proceedings would the Chairman extend the principle in Henderson -v- Henderson to strike out the Manchester proceedings as being an abuse of process.

(8) This was not a true case of cause of action or issue estoppel; the Manchester complaint could only be struck out as an abuse of process. It was not.

(9) Additionally, he took into account the then pending appeal against the Southampton Decision on limitation. If it succeeded, but the Manchester complaint was struck out, the 15 December 1998 allegation could not be considered in the Southampton proceedings.

(10) As a matter of broad discretion, taking into account the public interest, it was not an abuse of process meriting a strike out Order. As a matter of public policy, caution need be exercised before striking out a claim without a full hearing on the merits.

Abuse of process

13. At the time when Mr Chapman decided the present issue the state of the law relating to abuse of process may fairly be described as fluid. The most recent case then was Basra, in which we considered a number of the recent Court of Appeal authorities.
14. Happily, the true test has now been revealed to us by the House of Lords in Johnson -v- Gore Wood [2001] 2 WLR 72. In a case which is concerned with neither true cause of action or issue estoppel, as the Chairman correctly found this to be, the proper approach is as stated in the speech of Lord Bingham of Cornhill at 90 A - F:

"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."

The Appeal

15. Appeals to the EAT are on points of law only (Employment Tribunals Act 1996 Section 21(1) ).If an error of law is made out the EAT may:

(1) set aside the decision below and substitute its own finding if the Tribunal decision was plainly and unarguably wrong, or

(2) affirm that decision on the ground that it is plainly an unarguably right, or

(3) remit the matter for rehearing before the same or a different Tribunal.

16. However there is, it seems to us, a further position, which Counsel invite us to adopt in this case, consistent with our powers granted by Section 35(1)(a) ETA and that is to exercise the powers of the Tribunal and to effectively decide the strike-out question de novo rather than remit the case for rehearing before a different Chairman provided an error of law is made out. That is the course we shall adopt, if we find the Chairman to have erred in law, because no evidence was heard below; the factual background is not in dispute and we are in as good a position to deal with the matter based on full argument before us as would be a Tribunal Chairman on remission. There are the added advantages that this is the course which both parties ask us to take and it is one which will save further delay and expense.
17. Thus, the questions in the appeal are:

(1) did the Chairman fall into error? If not, the appeal fails; if so

(2) ought the Manchester complaint be struck out?

The first question

18. In a powerful and detailed submission on behalf of the Eighth/Ninth Respondents below, Ms Carrs-Frisk QC has persuaded us that the Chairman's reasoning is good in parts. Those parts which are not good in law include the following:

(1) Although the Chairman correctly directed himself that the relevant point in time at which the question of abuse is to be considered is the date of the Manchester complaint, 23 December 1998, the Chairman has taken into account factors which post-date the complaint, in particular, the progress of the Southampton proceedings and the pending appeal against the limitation decision in that case.

(2) That the principle in Henderson -v- Henderson is limited to cases in which there has already been a full determination of the issues between the parties on the merits and where there is a collateral challenge to previous proceedings.

(3) That it would be necessary for the Chairman to be satisfied that an application to amend the Southampton proceedings would inevitably have been successful before striking out the Originating Application and that it was for the Respondents below to alert the Applicant of the need to proceed by way of amendment.

(4) That it was extremely unlikely that Mr Chaudhary would have been permitted to amend the Southampton complaint to add an allegation which occurred after the date of that complaint.

19. The correct position in law, undisputed by Mr Hendy QC is that:

(1) the relevant date for considering the question of abuse is the date of the relevant complaint.

(2) The Henderson -v- Henderson principle, that a party should bring forward the whole of his case in a single set of proceedings, is not limited to striking out cases where there has already been a full hearing on the merits. See Barber -v- Staffordshire County Council [1996] IRLR 209.

(3) It would be an impermissible extension of the principle in Basra, where an application for permission to amend was made and refused, to hold that only where such an application would inevitably have succeeded does the principle in Henderson -v- Henderson apply. There is no obligation on the opposing party to tell the other how he should proceed.

(4) As Ms Carrs-Frisk has convincingly demonstrated, without dissent from Mr Hendy, by reference to authority, it is open to a Court or Tribunal to permit an amendment to raise allegations which post-date the originating complaint. See particularly, Ridgeway Motors (Isleworth) Ltd -v- Michael [13 June 1996. Ch D. Unreported] Beecham Group -v- Norton Healthcare Ltd [1997] FSR 82. Hendry -v- Chartsearch [23 July 1998. CA Unreported].

That said, Mr Hendy has equally demonstrated that as at 23 December 1998 there was a strong perception in the Employment Tribunals that amendments to add allegations post-dating the relevant complaint would not be permitted. He gave two examples of Orders made by Employment Tribunal Chairmen to that effect; we took that to be the case, without argument to the contrary, in Lambeth Service Team -v- Atijosan [26 June 2000 EAT. Unreported] paragraph 33 and the 1999 edition of the Supreme Court Practice, v.1, 20/8/2 note, suggests that permission would not be granted to allow a claimant to amend his writ to add a cause of action which had accrued since the date of issue.

20. In these circumstances we answer the first question in the affirmative and move to:

The second question

21. Applying the approach sanctioned by the House of Lords in Johnson -v- Gore Wood we have concluded that the presentation of the Manchester complaint was not an abuse of process for the following reasons:

(1) looking at the position as at 23 December 1998 the Applicant and his advisers could have applied in the Southampton proceedings for permission to add the 15 December 1998 complaint. It would have been open to that Tribunal to allow or disallow the amendment. If allowed, the whole matter would have been contained within one set of proceedings. The Respondents would not have been vexed by a second set of proceedings.

(2) Should the new allegation have been raised in the Southampton proceedings? We are not persuaded that it should. As at 23 December 1998 Mr Chaudhary was faced with a jurisdictional point which, if successful, would dispose of the whole of the cause of action in the Southampton proceedings. In those circumstances, given the then perception as to the granting of permission to add a fresh cause of action, which, based on the Court of Appeal decision in Rovenska -v- General Medical Council [1998] ICR 85, the Manchester complaint arguably raised, we agree with the Chairman below that the issuing of a fresh complaint was a permissible option. It may not be today, now that the practice on amendments is clear. It was on 23 December 1998.

(3) If the limitation defence in the Southampton proceedings failed it would be open to Mr Chaudhary to then combine the two sets of proceedings for the purposes of a full merits hearing. We do not draw a distinction, as a conclusive factor, between proceedings in which substantive issues have been resolved and those where they have not, but we regard the distinction as a material factor in the present case. Further, we accept Mr Hendy's submission that since the evidence necessary for determining the limitation issue in the Southampton proceedings would necessarily have been separately heard with or without an amendment to add the Manchester complaint in those proceedings, no additional time, expense or inconvenience is caused to the Respondents below by having the Manchester complaint waiting separately in the wings in the Manchester proceedings rather than in the Southampton proceedings.

(4) There is no material distinction between the cases of the Eighth/ Ninth Respondents below and Dr Platt. In particular, the fact that the Southampton complaint against Dr Platt was withdrawn on 9 March 1999 is an irrelevant factor when considering the position as at 23 December 1998.

(5) Finally, we have stepped back from the minutiae of the argument before us and have considered whether in all the circumstances Mr Chaudhary's conduct in presenting the Manchester complaint was an abuse of process. We have no hesitation in saying that, in our judgment, it was not.

Conclusion

22. In these circumstances we shall dismiss the appeal.