The claimants (supported by the FDA union) sought to pursue claims of direct age discrimination in relation to the redundancy payment scheme under the Civil Service Compensation Scheme (“CSCS”). When they lodged their claims before the ET, during the course of the summer of 2021, there were already (as those acting for the FDA claimants were aware) on-going claims of a similar nature relating to the CSCS that were subject to a Presidential Case Management Order (“PCMO”), which then extended to the FDA claimants’ claims. Shortly after the FDA claims were lodged, in July 2021, those acting for the respondents also drew to their attention the fact that a preliminary hearing on justification, to be determined in sample cases, had been listed for December 2021. No applications were made by the FDA claimants in respect of the preliminary hearing, although legal observers attended on their behalf. On the preliminary hearing, the respondents’ justification defence was upheld and the sample claims dismissed. The FDA claimants nevertheless sought to continue their claims, relying on expert evidence, which they contended to be material to the question of proportionality. The ET concluded that the continued pursuit of the claims would be an abuse of process, such as to be scandalous, unreasonable, or vexatious; in the particular circumstances it was determined that the claims should be struck out. The claimants appealed.

The EAT dismissed the appeal. The ET’s power to strike out the claims as an abuse of process was an exceptional jurisdiction, underpinned by a public interest in finality in litigation and by the principle that a party should not be twice vexed in the same matter. Although there was no presumption that re-litigation in civil proceedings was an abuse, the ET was entitled to conclude that was so, in circumstances in which the FDA claimants were parties to proceedings that had been case managed under a PCMO, and in which it had been decided that the common issue of justification would be determined, using sample claims, at a preliminary hearing, expressly to reduce the prospect of further substantive hearings. Having regard to the procedural history, the ET had permissibly found that, had the FDA claimants sought to participate, it was inconceivable that their involvement would not have been accommodated. Although the FDA claimants had been entitled to sit on their hands, to then seek to re-litigate the point that had been determined at the preliminary hearing would undermine the ET’s case management of the proceedings such as to put the respondents at risk of repetitive litigation and to bring the administration of justice into disrepute. The ET had been entitled to conclude that allowing the issue of justification to be re-opened would be manifestly unfair to the respondents and would bring the administration of justice into disrepute. In these circumstances, no error of law arose from the striking out of these claims.