The Practice Surgeries Limited & Surrey Primary Care Trust v Srivatsa UKEAT/0212/15/RN
Appeal against a revocation order, which overturned an earlier decision to dismiss the Claimant’s claim (after the Respondents had successfully applied for the proceedings to be dismissed following the Claimant’s withdrawal). Appeal allowed and the revocation order set aside.
The Claimant withdrew Tribunal proceedings against both Respondents in 2011. The Respondents (within time) applied for the claims to be dismissed, but the Claimant raised an objection. He subsequently issued High Court proceedings against both Respondents. The Tribunal eventually dismissed the Tribunal claims in October 2014, almost three years after the initial application. The Claimant then (belatedly) applied for a revocation of the dismissal of his claims. Although his application was out of time and was not copied to one of the Respondents, the Tribunal granted his application and revoked the dismissal. The revocation was significant because the Respondents had sought to rely upon an estoppel defence in the (ongoing) High Court proceedings: they had sought to argue that the Claimant should be proscribed from pursuing his High Court action since the substance of his claims had already been dismissed by the Tribunal. The revocation of the dismissal meant that they could no longer rely upon this estoppel defence. The Respondents duly appealed, broadly on the grounds that the Tribunal had failed to comply with its own rules and procedures and had relied upon unsustainable grounds.
The EAT allowed the appeal. The Tribunal had erred in a number of material respects in revoking the dismissal of the claim. In particular, the Respondents were not given opportunity to make representations in response to the Claimant's application; nor were they given reasons as to why the Tribunal chose to extend the time limit by almost 100 days. The EAT determined that the revocation order should be set aside and the judgment dismissing the claims should remain in place.
Tim Crane, Employment Law Solicitor
Appeal No. UKEAT/0212/15/RN; UKEAT/0213/15/RN; UKEAT/0214/15/RN; UKEAT/0215/15/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 19 January 2016
Judgment handed down on 26 February 2016
THE HONOURABLE MRS JUSTICE SLADE DBE
(1) THE PRACTICE SURGERIES LIMITED
(2) SURREY PRIMARY CARE TRUST (NOW SECRETARY OF STATE
FOR HEALTH) (APPELLANTS)
Transcript of Proceedings
For The Practice Surgeries Limited MR MUGNI ISLAM-CHOUDHURY (of Counsel) Instructed by: The Practice Surgeries Limited Rose House Bell Lane Office Village Amersham Buckinghamshire HP6 6FA
For The Secretary of State for Health MR THOMAS CORDREY (of Counsel) Instructed by: DAC Beachcroft LLP Portwall Place Portwall Lane Bristol BS1 9HS
For Mr Srivatsa MR GILES BEDLOE (of Counsel) Instructed by: C J Jones Solicitors LLP 9 Mallow Street London EC1Y 8RQ**SUMMARY**
PRACTICE AND PROCEDURE - Withdrawal
PRACTICE AND PROCEDURE - Review
In 2011 the Claimant withdrew his claim before the Employment Tribunal. As was required by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, within the time limit for doing so the Respondents applied for the claim to be dismissed. After a further request the Employment Tribunal dismissed the claim on 13 October 2014. 111 days after the claim was dismissed the Claimant applied for a revocation of the dismissal of his claim, without an application for an extension of time and without the Claimant (in breach of Rule 71 2013 ET Rules) or the Employment Tribunal (in breach of Rule 72(1)) notifying the Second Respondent of the application. In breach of Rule 72(2) the Respondents were not given an opportunity to make representations in response to the application. The Employment Judge erred in law in revoking the dismissal of the claim notwithstanding that the application was out of time and that the ET Rules had not been complied with. Further the Employment Judge erred in revoking the dismissal of the claim on the basis that when she dismissed the claim she had not been notified that the Claimant had objected when she had been so informed. Appeal allowed. Revocation of the dismissal of the claim set aside. Further, the Employment Judge erred in refusing to reconsider her revocation Order.**THE HONOURABLE MRS JUSTICE SLADE DBE**
- This is an appeal by the Secretary of State for Health (previously Surrey Primary Care Trust ("the First Respondent") and The Practice Surgeries Ltd ("the Second Respondent") from the Order of Employment Judge ("EJ") Martin of 5 March 2015 revoking her Judgment on 13 October 2014 dismissing the Claimant's proceedings before the Employment Tribunal ("ET") following the withdrawal of his claim. The Respondents also appeal from the refusal of EJ Martin on 30 March 2015 of their joint application for reconsideration of the Order of 5 March 2015. As is the practice in the Employment Appeal Tribunal ("EAT") the parties will be referred to by their titles in the ET.
- In summary, counsel for the Respondents, Mr Cordrey and Mr Islam-Choudhury contended that the EJ made many fatal errors of law in revoking the dismissal of the Claimant's claim and in refusing their application for reconsideration of the revocation. They contended that if those errors of law had not been made, the Order of 13 October 2014 dismissing the Claimant's claim in the ET would not have been revoked and the application for reconsideration of the revocation would have been granted. Mr Bedloe, counsel for the Claimant, contended that the EJ did not err in law in making the Order and in dismissing the application for its reconsideration.
- The significance of this appeal is that the Respondents have pleaded that the Claimant is estopped from pursuing proceedings brought in the High Court against them as issues and claims raised in those proceedings were made in an ET claim which had been dismissed. The estoppel defence is to be tried as a preliminary issue in the High Court proceedings.
- The Claimant is a doctor who worked from 2 February 2004 as a salaried GP. When he presented his claim to the Employment Tribunal he had been working at a practice in Woking employed by Surrey Primary Care Trust, whose liabilities have been assumed by the First Respondent. On 1 May 2011 the Second Respondent took over the running of the practice. The parties agree that on 1 May 2011 there was a transfer of an undertaking, the practice, from the First to the Second Respondent. However as the Claimant had been on special or sick leave, what is in dispute is whether he was assigned to the practice at the time of the transfer.
- On 3 May 2011 the Claimant presented a claim in the ET against both Respondents in which he alleged unlawful discrimination and breach of contract.
- The Claimant's ET claim was listed for hearing on 27 October 2011.
- By email of 25 October 2011 solicitors for the Claimant wrote to the ET copying the Respondents:
"Our client wishes to withdraw his claim and therefore we shall be pleased if you will vacate Thursday's hearing."
- On 26 October 2011 the ET office wrote to his solicitors thanking the Claimant for informing them that the claim had been withdrawn and that the file had therefore been closed. His solicitors were informed that the file would be retained until 27 October 2012 and then destroyed.
- By letter dated 7 November 2011 solicitors for the First Respondent applied for an Order pursuant to Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 ("the 2004 ET Rules"):
"for an order pursuant to Rule 25(4) that the claim is dismissed and judgment entered, pursuant to Rule 28(1)(a)."
The First Respondent reserved the right to claim costs against the Claimant.
- Solicitors for the Claimant emailed the ET on 14 November 2011:
"We have received a copy of the 1st respondent's application for an order that the claim be dismissed and Judgment be entered, which we received on 9 November.
We object to the order sought. Our client withdrew his claim upon the expectation that his employment claims would be concluded. His principal reason for doing so was the cost of pursuing his claim against 2 respondents whose pockets are very much deeper than his own. The risk of a costs order, however slight, coupled with the fact that to reach a full hearing would involve expenses he simply cannot manage, caused him to withdraw. Our client was facing a barrage of technical and procedural issues.
Accordingly, our client was obliged to withdraw for economic reasons. It now appears that one of the respondents intends to pursue a costs order. If this is correct [it is not clear from their letter], then the claimant would wish to re-activate his claim, rather than face a costs application."
The Second Respondent also objected to any "re-activation" of the Claimant's claim and applied for costs.
- On 15 December 2011 the ET wrote to the parties' solicitors:
"Employment Judge Hall-Smith has considered the parties' recent correspondence and instructs me to write as follows:
The Judge points out that the Employment Tribunal has no jurisdiction to "re-activate" a claim which has been withdrawn. There is no such thing as a "conditional withdrawal"."
- On 18 April 2012 the Claimant issued proceedings in the High Court against the First Respondent. The First Respondent pleaded that liability for the contract of the Claimant had transferred to the Second Respondent under the Transfer of Understandings (Protection of Employment) Regulations 2006 ("TUPE").
- After the High Court determined on appeal from dismissal of those proceedings that the question of whether there was a TUPE transfer from the First to the Second Respondent required a trial, on 24 March 2014 the Second Respondent was joined as a party to the proceedings. In addition to raising a defence that liability had not transferred to them under TUPE, in their Defence of 9 June 2014 the Second Respondent raised an estoppel defence in respect of matters which had been the subject of the claim before the ET. The Second Respondent stated that they understood that the ET claim which had been withdrawn, was dismissed. They stated that they were not in possession of the dismissal Order and pleaded that:
"25. If the ET Claim has been dismissed by order of the Employment Tribunal, the Second Defendant relies on issue and/or cause of action estoppel in defence of the present claim in respect of those issues and claims pleaded and claimed in the ET Claim now pursued in these proceedings."
- On 16 September 2014, solicitors for the First Respondent wrote to the ET seeking an Order dismissing the ET Claim. They referred to the withdrawal of the claim and stated:
"However, to date the Tribunal has seemingly failed to make an order dismissing the claim. In the event that the claim was not formally dismissed at the time, we request that the Employment Tribunal finalise this procedural point by issuing a dismissal of the claim at its earliest convenience. Making this Order would be in accordance with the overriding objective of dealing with cases fairly and justly."
- In their letter of 16 September 2014, to the ET the solicitors for the First Respondent set out the history of withdrawal of the ET claim exhibiting relevant documents. They wrote:
"4. The Claimant emailed the Employment Tribunal on 14 November 2011 seeking to re-activate the claim (see Exhibit 5) and on 15 December Employment Judge Hall-Smith wrote in reply that the Tribunal had "no jurisdiction to "re-activate" a claim which has been withdrawn. There is no such thing as a "conditional withdrawal" [see Exhibit 6].
5. However, to date the Tribunal has seemingly failed to make an order dismissing the claim. In the event that the claim was not formally dismissed at the time, we request that the Employment Tribunal finalise this procedural point by issuing a dismissal of the claim at its earliest convenience. Making this Order would be in accordance with the overriding objective of dealing with cases fairly and justly."
Included in the exhibits was the email of 14 November 2011 from the solicitors for the Claimant to the ET.
- Under cover of a letter dated 21 October 2014 to solicitors for the First Respondent but not the Second Respondent or the Claimant, the ET enclosed a Judgment of EJ Martin of 13 October 2014 which stated:
"The proceedings are dismissed following a withdrawal of the claim by the Claimant."
- By letter dated 24 October 2014, solicitors for the First Respondent emailed to the Claimant's solicitors the Judgment of EJ Martin of 13 October 2014 and their letter to the ET of 16 September 2014.
- On 21 January 2015 the First Respondent made an application in the High Court proceedings to amend their Defence to plead estoppel and for trial of the TUPE issue and the estoppel issue as preliminary issues. In support of the estoppel issue the First Respondent served evidence including the Judgment of EJ Martin of October 2014. Following a hearing on 10 February, Master Yoxall ordered that:
"The issue of whether, pursuant to the principles of res judicata and abuse of process, the Claimant is estopped from bringing his claim shall be tried as a preliminary issue."
- On 12 February 2015 the Claimant's solicitors wrote to the ET asking for the Judgment of EJ Martin of 13 October 2014 to be reconsidered. Referring to their email of 14 November 2011 they asserted:
"It followed that the case was not dismissed at that time, and that there was a dispute between the parties as to whether dismissal should occur. This dispute was not resolved."
- On 20 February 2015 the ET invited comments on the Claimant's solicitor's email of 12 February from the First Respondent's solicitors but not from those acting for the Second Respondent.
- On 5 March 2015 EJ Martin revoked her Judgment of 13 October 2014 in a fully reasoned letter.
- On 18 March 2015, the Second Respondent applied for reconsideration of the Order of 5 March 2015.
- By letter to all parties on 30 March 2015 the ET refused the application for reconsideration.
The Order of 5 March 2015
- EJ Martin stated that:
"…having considered the representations from both Claimant and Respondent
1. The Judgment dated 13 October 2014 is revoked as being made in error."
The EJ gave the following reasons for the revocation:
"2. The Claimant had objected to the dismissal of proceedings when he withdrew his claim in 2011. This information was not known to the Judge when the judgment was made as the Tribunal file had been closed and destroyed. This information was not made known to the Judge by the Respondent when requesting a dismissal judgment.
3. I have extended time for the Claimant to make the application for reconsideration within the powers set out in rule 5 of the Employment Tribunal Rules of Procedure 2013.
4. It is in the interests of justice that the judgment be revoked."
The Decision of 30 March 2015
- The ET wrote to the parties on 30 March 2015 that EJ Martin refused the Respondents' application for reconsideration of the revocations stating:
"EJ Martin has considered this matter in detail. She has asked me to write on her behalf.
The Respondents joint application for a reconsideration of the judgment setting aside the judgment dismissing the Claimant's claim is refused on the ground that it has no reasonable prospect of success. The reason for the reconsideration of this judgment is clear from the reasons stated. There is no reasonable prospect of the application being successful.
EJ Martin also refers the parties to the case of Nayif v The High Commission of Brunei Darussalem  EWCA Civ 1521 which has the effect of diminishing the effect of a dismissal judgment where there has been no engagement with the substantive merits of the case as happened here."
The Relevant Employment Tribunal Rules
- The parties are agreed that Schedule 1 Rule 25 of the 2004 ET Rules applied to the withdrawal of the Claimant's claim on 25 October 2011. Rule 25 provides:
"25. - (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)."
- The Employment Tribunals (Constitution and Rules Procedure) Regulations 2013 Schedule 1 ("the 2013 ET Rules") applied to the proceedings from 29 July 2013. The 2013 ET Rules apply to the proceedings under consideration in this appeal. Regulation 13 of the 2013 ET Regulations provides that:
"Subject to paragraph (2), Schedule 1 applies to all proceedings before a Tribunal except where separate rules of procedure made under the provisions of any enactment are applicable."
Paragraph (2) was not applicable to these proceedings. The transitional provisions in Regulation 15 state that the 2013 Regulations and Rules of Procedure apply in relation to all proceedings to which they relate. The 2013 Regulations apply to the Claimant's claim and the proceedings in relation to it after 29 July 2013. The exceptions in Regulation 15(2) are not in respect of all claims received by the Respondent before 29 July 2013 but only to those specified in that Regulation which does not include the claims brought by the Claimant.
The 2013 ET Rules
"5. Extending or shortening time
The Tribunal may, on its own initiative or on the application of a party extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.
51. End of claim
Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.
52. Dismissal following withdrawal
Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless—
(a)the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or
(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.
60. Decisions made without a hearing
Decisions made without a hearing shall be communicated in writing to the parties, identifying the Employment Judge who has made the decision.
(1) The Tribunal shall give reasons for its decision on any disputed issue, whether substantive or procedural (including any decision on an application for reconsideration or for orders for costs, preparation time or wasted costs).
(2) In the case of a decision given in writing the reasons shall also be given in writing. In the case of a decision announced at a hearing the reasons may be given orally at the hearing or reserved to be given in writing later (which may, but need not, be as part of the written record of the decision). Written reasons shall be signed by the Employment Judge.
(4) The reasons given for any decision shall be proportionate to the significance of the issue and for decisions other than judgments may be very short.
(5) In the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues. Where the judgment includes a financial award the reasons shall identify, by means of a table or otherwise, how the amount to be paid has been calculated.
69. Correction of clerical mistakes and accidental slips
An Employment Judge may at any time correct any clerical mistake or other accidental slip or omission in any order, judgment or other document produced by a Tribunal. If such a correction is made, any published version of the document shall also be corrected. If any document is corrected under this rule, a copy of the corrected version, signed by the Judge, shall be sent to all the parties.
RECONSIDERATION OF JUDGMENTS*
A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision ("the original decision") may be confirmed, varied or revoked. If it is revoked it may be taken again.
Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.
(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.
(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations."**Grounds of Appeal**
Order of 5 March 2015
- Where the First and Second Respondents' grounds of appeal overlap they will be considered together.
- Mr Islam-Choudhury for the Second Respondent contended that in breach of Rule 71 of the 2013 ET Rules the Claimant failed to copy to them or to the First Respondent his application of 12 February 2015 for reconsideration of the Judgment of 13 October 2014 dismissing his claim.
- This breach of Rule 71 by the Claimant was compounded by the breach of Rule 72(1) by the failure of the ET to invite a response from the Second Respondent to the Claimant's application. By letter dated 20 February 2015 the ET invited such a response from the First Respondent.
- Further, the Second and the First Respondent were deprived of the opportunity they should have been given under Rule 72(2) of making additional representations.
- Mr Islam-Choudhury pointed out that in breach of Rule 60, the Order of 5 March 2015 was not sent to the Second Respondent. They only learned of it through disclosure on 12 March 2015 in the High Court proceedings. Communication with the First Respondent is not to be regarded as including communication to the Second Respondent. They were separately represented and they took diametrically opposed positions on the TUPE issue.
- Mr Bedloe for the Claimant submitted that his client's failure to notify the Second Respondent of his application for reconsideration of the 13 October 2014 Order and of the ET to invite responses from the Second Respondent to the application were technical breaches of the Rules and would not have affected the outcome. Further it is submitted in the Claimant's Answer to the appeals that:
"Whilst the interests of both App 1 and App 2 were clearly aligned in this matter, and both parties had been cooperating in their approach to proceedings, that letter does not explicitly state that representations are made on behalf of both Apps, or are supported by App 2. … In the context of this case, it is inconceivable that App 1 and App 2 were not discussing how to respond to R's 12 February 2015 application for reconsideration."
- In my judgment the EJ was clearly in breach of Rule 72(1) in failing to send a notice to the Second Respondent inviting a response to the Claimant's Application of 12 February 2015 to revoke the Order of 13 October 2014. I do not accept that this failure was a "technical breach of the rules". It was fundamental. The Rules provide that a party must be given an opportunity to respond to an application for reconsideration of an Order. This was not given to the Second Respondent. I do not accept that the interests of both Respondents in the ET proceedings are aligned. They are not. The First Respondent denies liability on the basis that there was a TUPE transfer to the Second Respondent. The Second Respondent denies liability on the basis that there was no TUPE transfer to them. Further, even if their interests were aligned it is recognised in paragraph 11(iv) of the Answer filed on behalf of the Claimant that the letter from the First Respondent making submissions in response to the application of the Claimant for reconsideration of the Order of 13 October 2014 do not "explicitly state that representations are made on behalf of both Appellants or are supported by App 2". Even if the Respondents have interests in common on some issues they are different parties and the ET is required by Rule 72(1) to invite comments from the parties. Rule 72(1) was not complied with in relation to the Second Respondent.
- The failure to comply with Rule 72(1) would be sufficient to set aside the revocation Order of 5 March 2015 at least in relation to the Second Respondent. However this challenge to the Order does not stand alone.
- Mr Cordrey relied upon Rule 71 of the 2013 ET Rules which provides for a 14 day time limit for applications for reconsideration of a Judgment or Order. The Claimant's application for reconsideration of the Judgment of 13 October 2014 was made on 12 February 2015, 111 days not 14 days after the Order.
- By their emailed letter of 26 February 2015, solicitors for the First Respondent pointed out that the Claimant's application for reconsideration was more than three months out of time and that they had sent him a copy of the Judgment of the ET on 24 October 2014. They stated that the covering letter to the Judgment from the ET explains that an application for reconsideration must be made within 14 days of the date the decision was sent to the party.
- The solicitors for the Claimant gave their reasons for missing the time limit for applying for a reconsideration in their email to the ET of 3 March 20015. They stated that they did not suggest that the email of 24 October 2014 was not received but that on that date the writer was overseas on a family holiday with limited access to wi-fi. The solicitor wrote that a copy of the email of 24 October 2014 was served with evidence filed in the High Court claim on 21 January 2015. He stated:
"The email copy of the letter shows that we first conveyed the letter to the Claimant and Counsel 20 minutes after receipt of the evidence sent to us on 21 January 2015."
- Counsel submitted that no application for an extension of time within which to make the application for reconsideration was made by the Claimant. Further, the EJ failed to give reasons for extending time by nearly 100 days.
- Mr Cordrey submitted that by their letter of 20 February 2015 the First Respondent clearly raised the issue that the Claimant's application for reconsideration was out of time. The Claimant's solicitor's letter of 3 March 2015 should have made it clear that the time point was disputed. Counsel submitted that in breach of Rule 62 the EJ failed to give reasons on the disputed issue of whether the application for reconsideration of the Judgment of 13 October 2014 was presented in time. The position of the First Respondent was that it was presented long after time had expired and that there was no basis for extending time. The Claimant's solicitors did not apply for an extension of time when they made their application on 12 February 2015. On 3 March 2015 solicitors for the Claimant asked that if the Order of 13 October 2014 were regular or had any effect that they be "heard out of time".
- Mr Bedloe did not advance any argument in support of the decision of the EJ on 5 March 2015 to extend time other than making reference to the Claimant's solicitor's letter of 12 February 2015.
- In my judgment the EJ clearly failed to comply with Rule 62 of the 2013 ET Rules to give reasons for her decision that time should be extended for the application to revoke the Judgment of 13 October 2014. This was clearly an issue between the parties. It was of importance. If it were decided that time should not be extended the EJ would have no jurisdiction to hear the application.
First Respondent: error 6 - mistaken reason for revocation
Second Respondent: ground 2 - grounds for revocation not sustainable
- Both Mr Islam-Choudhury and Mr Cordrey submitted that the basis for the EJ's decision that the Judgment of 13 October 2014 be revoked is unsustainable. The EJ held that the information that the Claimant had objected to the dismissal of proceedings was "not made known to the Judge by the Respondent when requesting a dismissal judgment".
- Counsel for the First Respondent relied on enclosure 5 to the letter of 16 September 2014 from their solicitors to the ET requesting an Order dismissing the Claimant's claim. Enclosure 5 was the email sent on 14 November 2011 from the Claimant's solicitors to the ET in which he objected to the Order requested by the First Respondent for dismissal of the claim. It was said that "The risks of a costs order was coupled with the expense of a contested hearing caused him to withdraw his claim". Counsel submitted that evidence of the Claimant's objection to the dismissal of his claim was placed before the EJ in the attachment of their letter of application of 16 September 2014.
- Mr Bedloe contended that the Claimant's objection to the dismissal of his claim was not properly brought to the attention of the EJ by the First Respondent. It was said that the EJ would have looked at the letter of 16 September 2014 which merely said at paragraph 4 about the email of 14 November 2011, that the Claimant was seeking to reactivate his claim.
- The material before the EJ to making her decision of 13 October 2014 to dismiss the claim included the email from the Claimant's solicitors of 14 November 2011. The solicitors said in terms that the Claimant objected to the dismissal of his claim. Accordingly a conclusion that this information was not made known to the Judge by the First Respondent when requesting a dismissal judgment is unsustainable.
Conclusion on appeal from Order of 5 March 2015
- The EJ erred in law in significant respects in reaching her decision on 5 March 2015 to revoke the Judgment of 13 October 2014. The appeal from the Order of 5 March 2015 is allowed and the revocation is set aside.
Consequence of setting aside the Order of 5 March 2015
- As the Order of 5 March 2015 is set aside, the Order of 13 October 2014 remains in place. There was no appeal from that Order.
- By email of 25 October 2011 the Claimant withdrew his claim. Within the time specified in Rule 25(4) of the 2004 ET Rules the First Respondent applied for a dismissal of the claim reserving their right to apply for costs against the Claimant. By email of 14 November 2011 his solicitors objected to the Order sought. They wrote:
"… our client was obliged to withdraw for economic reasons. It now appears that one of the respondents intends to pursue a costs order. If this is sought [it is not clear from their letter], then the Claimant would wish to reactivate his claim rather than face a costs application."
- In my judgment it is clear from the solicitors' email of 14 November 2011 that at the time of withdrawal the reason given for doing so was cost. The reason the Claimant objected to dismissal of the ET proceedings and for wanting to "reactivate" the claim was to seek to avoid a costs Order being made in favour of the First Respondent.
- Unlike the position under Rule 52 of the 2013 ET Rules pursuant to which when a claim is withdrawn the ET is required to dismiss it save in specified circumstances, under the 2004 ET Rules an application for dismissal had to be made by a Respondent.
- By letter dated 18 November 2011 the Second Respondent also applied for dismissal of the claim and for costs. They objected to "reactivation" of the claim.
- By letter dated 15 December 2011 the ET notified the parties of the decision of EJ Hall-Smith that:
"the Employment Tribunal has no jurisdiction to "reactivate" a claim which has been withdrawn. There is no such thing as a "conditional withdrawal"".
- Mr Mugni-Choudhry submitted that the decision of EJ Hall-Smith of 15 December 2011 gave rise to three possibilities: that the EJ reached no decision on the dismissal application; that the EJ decided to dismiss the application or that he decided not to dismiss the application.
- The position taken on behalf of the Second Respondent is that the Respondents had outstanding applications for dismissal of the Claimant's claim which were not determined "properly" in 2011. There should have been an Order or Judgment under the 2004 ET Rules.
- In their letter of 16 September 2014 solicitors for the First Respondent wrote that in the event that the claim was not formally dismissed in 2011 the ET were requested to finalise the procedural point by issuing a dismissal of the claim. In effect the First Respondent was asking for an Order or Judgment to be made under the slip rule dismissing the claim.
- Counsel for both Respondents said there was no fresh application in 2014 to dismiss the claim.
- Counsel drew attention to the judgment of the EAT in Verdin v Harrods Ltd  IRLR 339 in which HH Judge Richardson held at paragraph 39:
"So a party who receives a notification of withdrawal of the whole proceedings, and wishes to establish once and for all that there is to be no further litigation on the same questions, may apply for dismissal. The subsequent hearing will then concentrate on the question, which Mummery LJ identified in Ako. Is the withdrawing party intending to abandon the claim? If the withdrawing party is intending to resurrect the claim in fresh proceedings, would it be an abuse of the process to allow that to occur? If the answer to either of these questions is yes, then it will be just to dismiss the proceedings. If the answer to both these questions is no, it will be unjust to dismiss the proceedings."
- Counsel for the Respondents contended that if there had been no decision to dismiss the claim in 2011 such a decision was taken by EJ Martin in 2014. That decision was taken on the applications made in 2011. The applications to dismiss were made in time. There is no time limit for determining the applications. The delay in dealing with it was not the fault of the Respondents. The 2011 applications to dismiss were dealt with by EJ Martin in her Order of 13 October 2014 which resulted in the dismissal of the claim.
- The withdrawal of the claim in 2011 was unequivocal. At the time of withdrawal the Claimant did not express a wish to reserve the right to bring a further claim. Whether under the 2004 ET Rules applying the guidance in Verdin and Ako v Rothschild Asset Management  IRLR 348 or under the 2013 ET Rules applying Rule 52, the only decision open to an ET considering an application for dismissal under the 2004 Rules or acting under the 2013 Rules was that the claim should be dismissed.
- Mr Bedloe contended that the decision of EJ Hall-Smith of 15 December 2011 is not a dismissal of the claim. I agree. The dismissal of a claim is an important judicial determination. It must be clear that such a decision has been taken. That counsel for the Respondents submitted that the decision of EJ Hall-Smith is open to three possible interpretations illustrates that there was no such clarity about his decision. The fact that he said that the ET has no power to reactivate a claim which has been withdrawn refers to a withdrawal of the withdrawal. It is not a decision to dismiss the claim which is a separate decision. Accordingly a dismissal Order could not be made under the slip rule.
- Mr Bedloe contended that before taking the decision to dismiss the claim in 2014 the ET should have given the Claimant an opportunity to make submissions as to why it was not in the interests of justice to dismiss the claim. Counsel submitted that particularly in circumstances in which there had been a delay of some two and a half years in pursuing an Order for dismissal the Claimant should have been given an opportunity to respond to the application. Counsel submitted that dismissal of the claim only became a live issue after April 2014 when it became relevant in the High Court proceedings.
- Counsel for the Claimant submitted that it is not the function of the EAT to consider the Respondents' application to dismiss the claim.
- In my judgment the decision of EJ Martin of 13 October 2014 dismissing the claim stands. The decision was taken on application of both Respondents in 2011 made by them under the 2004 ET Rules. Their applications were not determined by EJ Hall-Smith. They were outstanding and were dealt with by EJ Martin on 13 October 2014. There has been no appeal from that Judgment. In any event if their decision were made under the 2004 ET Rules it was consistent with the guidance of the EAT in paragraph 39 of Verdin: at the time of withdrawal in accordance with the contemporaneous email of his solicitors the Claimant was intending to abandon the claim. If the decision of 13 October 2014 was taken under the 2013 ET Rules the exception to mandatory dismissal in Rule 52(a) did not apply. The Claimant contended in his solicitors' letter to the ET of 12 February 2015 that the sole purpose of the Respondents' application for dismissal of the claim was to frustrate his High Court claims brought in 2012. It was said that to do so would not be disposing of the ET claim "justly and fairly". This consideration could not have been relevant to the applications to dismiss when they were made in 2011. Further, the effect of the dismissal of the ET claim on that in the High Court is a matter for that court to determine.
Decision of 30 March 2015
- Whilst in light of the setting aside of the revocation Order of 5 March 2015 it is not strictly necessary to determine the Respondents' appeal from the decision of EJ Martin of 30 March 2015 refusing to reconsider her Order of 5 March 2015 I do so as the parties addressed me on this issue.
Grounds of Appeal
- On 18 March 2015 the Second Respondent applied for reconsideration of the Order of 5 March 2015. The First Respondent supported the application. It was submitted that, contrary to Rule 62 of the 2013 ET Rules, in the letter of 30 March 2015 EJ Martin failed to give reasons for her decision to refuse the application for reconsideration. It was also said that it was surprising that EJ Martin referred to Nayif v The High Commission of Brunei Darussalam  EWCA Civ 1521 as the issue in that case was not whether a dismissal judgment should be issued but whether such a judgment barred later proceedings through estoppel. This was not relevant to the application before the EJ.
- Mr Bedloe contended that whilst there may have been a technical breach of the Rules it made no difference to the outcome. The Second Respondent had made detailed written submissions which EJ Martin said that she had considered and rejected. EJ Martin referred to the reasons for revoking the Order of 13 October 2014 given in her Order of 5 March 2015. It was therefore apparent what her reasons were for rejecting the Respondents' application for reconsideration.
- In my judgment EJ Martin in her letter of 30 March 2015 failed to comply with the duty in 2013 ET Rules Rule 62 to give reasons for her decision that the Respondents' application for reconsideration of her Order of 5 March 2015 had no reasonable prospect of success. The EJ merely repeated by reference the reasons (which were not supported by the material before her) for making the revocation Order. EJ Martin failed to deal with the detailed grounds of the reconsideration application set out in the letter of 18 March 2015 from the Second Respondent to the ET. These grounds included reference to the documents which had been sent to the ET in response to the Claimant's application for reconsideration. These show that the "error" relied upon by EJ Martin in setting aside the Judgment of 13 October 2014 was itself an error.
- Further, I accept the submission made on behalf of the Second Respondent that the effect on High Court proceedings of dismissal of ET proceedings without a hearing on the merits is a matter for that court. Nayif was not relevant to the application before the EJ.
- If it were necessary to do so, I would set aside the decision of 30 March 2015 to refuse the application for a reconsideration of the Order of 5 March 2015.
- The appeal is allowed.
- The Order of Employment Judge Martin of 5 March 2015 sent to the parties on 6 March 2015 revoking the Judgment of 13 October 2014 is set aside.
- The Judgment of Employment Judge Martin of 13 October 2014 sent to the parties on 21 October 2015 dismissing the proceedings following the withdrawal of the claim by the Claimant remains in place.
Published: 01/03/2016 21:32