United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J SYKES (Representative)
For the Respondent	MR S CATHERWOOD (of Counsel) Instructed by: Messrs Pinsent Masons Solicitors Citypoint 1 Ropemaker Street London EC2Y 9AH


 


SUMMARY

Practice and Procedure – Withdrawal

Appellant withdraw his application to the ET and then sought to withdraw his withdrawal. Could he do so?


 


HIS HONOUR JUDGE REID QC

1. This is an appeal from a decision of an Employment Tribunal held at London Central on 22 December 2006 by which the Chairman sitting alone held the whole of the claims in two sets of proceedings which had been consolidated had been withdrawn pursuant to rule 25(2) of the Employment Tribunals Rules of Procedure 2004 on 27 November 2006, and that the proceedings had been bought to an end as against the Respondent, save that the judgment did not affect proceedings as to orders for costs, preparation of time orders, or wasted costs orders. There were then certain consequential directions that were made.
2. The point on the appeal effectively is whether or not this case can be distinguished in the case of Khan v Heywood & Middleton Primary Care Trust [2006] EWCA Civ 1087.
3. The factual background of the case is this. The Appellant claimed unfair dismissal and race discrimination by two separate claims presented respectively on 23 May 2006 and 26 June 2006, which were consolidated. There was then a direction for a judicial mediation, which was listed for 29 and 30 November 2006. It appears that there had been some difficulties as between Employment Lawyers Ltd, who were representing the Claimant Appellant, and the Claimant Appellant as to communication. The result of that was that on 27 November a letter was prepared, or instructions at least for a letter were given, the body of which read:

"We write to inform you that we withdrawn the above Claim and ask that you vacate the Judicial Mediation CMD hearing, which is to be held at Victory House, on Wednesday 29^th and Thursday, 30th November 2006 at 09.30 am."

4. There are two versions of that letter in the bundle before me. In one of them, which appears to be the version received by the Employment Tribunal, the heading only gives one of the consolidated case numbers, though the reference gives both. The other version of the letter gives both of ET numbers, and it looks as if it was that latter version that was sent to the Respondent's solicitors. Nothing I think turns on that distinction; no point was taken on it below and although I raise the question as to whether any point was taken on it in this Tribunal, Mr Sykes representing the Appellant did not take any such point.
5. That letter bearing the typed date 27 November 2006 was received by the Employment Tribunal on 28 November at 10.49 am. At some time in that day the Clerk to the Tribunal wrote to both parties vacating the appointment for the following day in these terms, having given the heading including both case numbers:

"WITHDRAWAL OF CLAIM

Employment Tribunals Rules of Procedure

Thank you for your letter informing the tribunal that you are withdrawing your claim against the respondent, namely London School of Economics and Political Science.

The hearing listed for 29 & 30 November 2006 has been cancelled.

Your file has been closed and will be retained in archive for one year after which time it will be destroyed."

That letter appears to have been sent by post to each side.

6. In the course of the afternoon a further letter was sent by the Appellant's representatives. This was apparently received by the Employment Tribunal at 17.08. Though it is suggested that it may have been sent or received at 1605, nothing I think turns on that difference of an hour; and the 1708 time I take from the copy of the letter apparently received at the Tribunal, to be found at page at page 116 of the bundle. The Judicial Mediation, of course, as I have indicated, was cancelled.

The second letter had said this:

"VERY URGENT

Amended letter

We write to inform you that we have withdrawn from the above Claims. The Claimant will represent himself at the Judicial Mediation."

7. The consequence of that communication was that the Chairman decided that there should be what was described as a pre-hearing review, on 22 December 2006. It is from the decision there that this appeal is brought, the Chairman having found that the Appellant's representatives had authority to withdraw the claims by their first Notice; and that the Khan case, to which I have referred, precluded him from setting aside the withdrawal. There was no appeal so far as the first of those two points was concerned.
8. The starting point in this case must be rule 25 itself, that provides as follows:

"25 Right to withdraw proceedings

(1) A claimant may withdraw all or part of his claim at any time - this may be done either orally at a hearing or in writing in accordance with paragraph (2).

(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.

(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the Tribunal(in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.

(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).

(5) The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so."

9. The submissions made on behalf of the Appellant were to the effect that this case was distinguishable from Khan; and in order to see the effect of Khan it is necessary to go to the end of that fairly lengthy decision. I set out below paragraphs 70 – 79 of that decision:

70. "In the first place, in my judgment, the ET is a creature of Statute and its procedure is specifically governed by the 2004 Regulations. It is much used by litigants in person. Its procedures are governed by what is meant to be an informal, but clearly understood code. Thus, whilst at first blush, and particularly given the tight time-limits for instituting proceedings, it might seem sensible to have a procedure by means of which a litigant who had mistakenly withdrawn a claim should be allowed to revive it, I am satisfied that, for such a procedure to exist, it would need to be set out expressly in the rules. I therefore regard the absence of any such express provision in the rules as important.

71. The point is, I think, emphasised by the draft rule which Miss Sen Gupta found on the DTI web-site. Had that rule been promulgated, she would have been on strong ground. But it was not.

72. Secondly, whilst none of the authorities cited to us is directly in point, their thrust seems to me strongly to support the proposition formulated by Moore-Bick LJ in paragraph 46 of his judgment in Fraser that the lacuna in the rules identified by Mummery LJ in Ako has now been made good. This is also, I think, the basis of Judge Richardson's reasoning in the extracts from his decision in Verdin which I have set out in paragraph 44 of this judgment, and with which I agree. I have less difficulty than Rimer J, despite the clumsy wording of rule 25(4), in reaching that conclusion.

73. Thirdly, it seems to me that the construction of the rule favoured by the ET Chairman and the judge is consistent with the CPR, and maintains the well-established distinction between a claim which has been withdrawn, but on which there is no judicial determination, and a claim which has been dismissed by means of a judicial act. The first does not, of itself, create either issue or cause of action estoppel: the latter does. Thus, if respondents to a claim in the ET wish to secure their position, they must apply to the ET for the claims against them to be dismissed. If they do not, they have the possibility that the claimant may bring a second claim on the same facts.

74. For the reason given in paragraph 70 above, I am unable to accept Miss Sen Gupta's submission that, as a matter of law, no order is required to enable a claimant to revive a withdrawn claim. Miss Sen Gupta herself, I think, recognised the weakness of her argument on this point, but felt compelled to advance it, since it followed logically if her primary submission (that withdrawn proceedings were dormant rather than "brought to an end") was correct. For the reasons I have attempted to give, however, I agree with the Chairman of the Tribunal and the judge that the words "brought to an end" mean what they say. Those particular proceedings have indeed been brought to an end, and cannot be revived against a respondent. That does not mean, however, that absent dismissal, a fresh claim on the same facts cannot be made.

75. I am equally unable to accept Miss Sen Gupta's alternative proposition that other rules in the 2004 Regulations enable the ET to permit a claimant to revive a withdrawn claim. I take this view for two reasons which are additional to the proposition that the rules themselves made no specific provision for the revival of a withdrawn claim.

76. Firstly, it seems to me that such an order is not within the concept of case management or the "General Power to manage proceedings" conferred by Rule 10 of Schedule 1 to the 2004 Regulations. I do not think it necessary to illustrate this point by reference to any of the specific examples of the orders which may be made under rule 10(1) as set out in rule 10(2). Secondly, I accept Mr. McCluggage's submission that the words "Subject to the following rules" with which rule 10(1) begins are significant, and that the reasoning of this court in Vinos v Marks & Spencer applies. It is also noteworthy that each section of the 2004 Rules is separated from its neighbours by specific sub-headings. Rule 25 is headed "Withdrawal of Proceedings", and is the only rule under that heading.

77. Finally, I am satisfied, for the reasons set out in paragraph 66 that the construction favoured by Mr. Brain and the judge will not cause injustice to claimants who have good reasons for seeking to withdraw a particular claim and to bring another on the same facts. Indeed, and for the reasons put forward by Mr. McCluggage, I regard this process as more in keeping with the over-riding objective than the procedure for which Miss Sen Gupta argues.

78. Whilst, therefore, I agree with the judge that the drafting of rule 25 is "lamentable", and that it is ambiguous, I am satisfied that there was no error of law in the decision of the Tribunal Chairman, and I would dismiss this appeal. In so far as it is necessary to do so, I would also refuse Dr. Khan's application for permission to appeal against the order for costs made by the Chairman.

Footnotes

79. Although I have reached a clear view on the meaning of rule 25, it would, in my judgment, nonetheless be sensible, when the Rules are next revised, for the relevant body to reconsider it, and on the assumption that its intended meaning is that found by the Tribunal Chairman, so to amend it as to remove its current ambiguity. "

Paragraph 79 is a footnote to the judgment, this being a judgment in which Lady Justice Smith and Lord Justice Brooke concurred with Lord Justice Wall.

10. The Appellant says, first of all, that rule 25(3) does not prevent a Claimant from amending his notice of withdrawal; and that amendment is irrelevant to the Respondent at least to the point where an application for dismissal is expected. The withdrawal, it is said, can be amended with leave of the Chairman using his powers under rule 10(1) (his case management powers) and indeed a withdrawal of a withdrawal could be sanctioned by the Chairman.
11. So far as amendment is concerned, the proposed amendment in this case is no amendment at all. It is not amending the notice of withdrawal: it is seeking to withdraw the notice of withdrawal. So far as withdrawal of the notice of withdrawal is concerned, the effect it seems to me of the notice of withdrawal when it takes effect, as to which I shall come, is that the proceedings are brought to an end against the relevant Respondent subject to the limited extent that proceedings for costs, preparation time, or wasted costs, can remain on foot.
12. The argument proceeded that since the notice of withdrawal is expressed by rule 25(3) to take effect on the date on which the Employment Tribunal Office, in the case of written notifications, or the Tribunal, in the case of oral notification, receive notice of it, that meant that the withdrawal could take effect at any time on the day on which it was delivered to the Tribunal Office if in writing and therefore it would take effect only at the conclusion of the day. The argument appeared to be, and thus far I accept it, that a notice of withdrawal could be served any time during the day and would not be artificially treated as being received on some later day. Thus it could be delivered to the Tribunal Office at 11.59 pm and still take effect on that day. The next stage of the argument was that therefore the notice did not take effect until the end of the day. Therefore, at any time during the day the withdrawal could itself be withdrawn.
13. I regret to say that I was unable to see quite how this argument proceeded from the words of the rules. 25(1) provides that a Claimant may withdraw all or part of his claim at any time. 25(2) indicates that the withdrawal may be either in writing by informing the Tribunal office or orally at a hearing. So far as 25(3) is concerned, once the Office has been informed an obligation is placed on the Secretary to inform all other parties of the withdrawal. It is following that that the sentence occurs 'withdrawal takes effect on the date on which the Employment Tribunal Office, in the case of written notification, or the Tribunal, in the case of oral notification, receive notice of it'. The reason, it seems to me, for that indication as to withdrawal taking effect on the date of receipt is because there may very well be occasions when the Tribunal Office takes time to inform the parties either because of pressure of business or, for example, in the case of a notice of withdrawal which is delivered late in the evening just before Christmas and therefore will not be seen by anyone until some time afterwards. The rule is intended to ensure that a withdrawal takes effect at a certain time rather than the uncertain later time when the Office gets round to dealing with it or possibly when the notice of withdrawal from the Secretary is served on the other party.
14. Any other construction, it seems to me, would be extremely difficult to justify. The suggestion that somehow the withdrawal does not take effect until the end of the day on which it is served would, for example, have the effect that were the withdrawal an oral withdrawal made in the course of a hearing, the hearing would somehow remain in limbo waiting to see whether the withdrawal was maintained until the very end of the day with the necessary consequential waste of costs and general inconvenience. The parties would not know whether the action was finally disposed of until the end of the day and that the matter might then be revivified in the course of the evening so that a further hearing was necessitated. The rules do not it seems to me provide any basis on which it could be said that the withdrawal could be itself withdrawn at any stage after it had been served, either by amendment or by retraction.
15. It will be recollected the rules carry on to provide a situation whereby following a withdrawal the Respondent can seek to have the claim dismissed. The point about this is the point identified in Khan, namely that if there is no dismissal it may be possible and desirable for a Claimant to seek to bring fresh proceedings on the same facts; whereas if there is a dismissal the matter will be res judicata. The rules do not provide for any cooling off period for the remainder of the day during which the notice is served. Had they intended to do so I have no doubt they would have done so specifically.
16. That I think leaves only one further point, which was a point not taken below. It is not it seems to me a point which would have been open or should be open on this appeal but in any event it seems to me a thoroughly bad point. The suggestion was that a notice of withdrawal could be effective only in circumstances where reasons for the withdrawal were specified in the notice. Now it may be prudent for a Claimant who is withdrawing to identify his reasons in his notice of withdrawal or when orally notifying the Tribunal during the course of the hearing, particularly if the reason for the withdrawal is so that fresh proceedings can be launched either in the Employment Tribunal or possibly in the courts. Such reasons may also make more difficult or may discourage an application for dismissal. Thus there may be good reasons for identifying why the withdrawal takes place but there is nothing in the rules which requires any such reasons to be given. Rule 25 provides that the withdrawal may be in writing or orally. There is no detail as to what has to be done to withdraw it orally. There is no magic formula. And so far as withdrawal in writing is concerned, the only requirement is that the Claimant must inform the Employment Tribunal Office that the claim or the parts of it which are being withdrawn is being withdrawn. Had it been a requirement of a valid withdrawal that reasons should be set out in the withdrawal then the rules would have said so.
17. It follows that I take the view that the decision to which the Chairman below came was entirely correct, and as I observed to Mr Sykes when finding against another of his clients at the end of last week, if the Appellant has any remedy it is a remedy against his advisers. The appeal will therefore be dismissed.