The appellants had been responsible for appointment of General Practice Registrar places and the claimant alleged that he had been offered a post, and a contract, and that contract was breached when he was subsequently asked to attend a competitive interview: he was not subsequently offered a post. The claimant pursued a discrimination claim through the ET, which was dismissed. He then made a second claim of victimisation under the RRA 1976 in which he was successful and awarded compensation of c£15,000.  He subsequently issued further claims in the High Court for breach of contract (he had not done so in the ET) which the appellants' sought to have struck out but the judge found that; i) the claimant could not have brought the claim in the ET as he was not an employee and it exceeded £50,000 and ; ii) the breach of contract proceedings involved issues fundamentally different from the discrimination and victimisation proceedings.

In this appeal, the appellants' argued, among other things, that, following Henderson v Henderson, this was a case where the matters could have been raise in previous proceedings but were not. Further the judge had erred in distinguishing this case with those of Sheriff and Sivanandan which, it was contended show, that the test in for identifying abusive proceedings is whether the same remedy is available and is being sought in the proceedings being challenged as in previous proceedings. Slade J rejected these submissions as I) while it is usual for there to be overlap in remedies in unfair and wrongful dismissal claims that does not render later wrongful dismissal breach of contract claims abusive; ii) the judge had been entitled to hold that it was not abusive for the claimant not to inform the appellants' that he may pursue a High Court claim while in the midst of Tribunal proceedings; iii) following Fraser v HLMAD Ltd if a claimant brining unfair dismissal proceedings wished to recover over the limit for claims in the ET then the claim should only be made in the High Court; and iv) the difference between the issues in the High Court claim and the discrimination claim can be readily demonstrated by the fact that the outcome of one does not determine the outcome of the other.

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Neutral Citation Number: [2010] EWHC 908 (QB)
Case No: HQ08X03679
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/04/2010

Before:

THE HONOURABLE MRS JUSTICE SLADE DBE

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Between:

**University of London (Appellant)

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Dr Mohammad Tariquez-Zaman (Respondent)**

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Daphne Romney QC (instructed by Beachcroft LLP) for the Appellant
James Laddie (instructed by Bevans) for the Respondent

Hearing dates: 13th January 2010

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Judgment

**Mrs Justice Slade:
**1. The University of London appeals from the judgment of Master Roberts of 13th July 2009 by which he dismissed its application to strike out as an abuse of process a Claim for breach of contract issued in the High Court on 19th August 2008 by Dr Mohammad Tariquez Zaman ('Dr Zaman'). By his High Court Claim Dr Zaman alleged that the University of London Deanery ('the Deanery') was in breach of contract. The Deanery is responsible for administering applications for and allotment of places as a General Practice Registrar ('GPR') on the General Practice Vocational Training Scheme ('GPVTS') in the London area. Dr Zaman alleged that the Deanery entered into a contract with him on or about 25th October 2002 whereby he was to be appointed to a GPR post following completion in August 2003 of six months as a Senior House Officer in Accident & Emergency (A&E) at North Middlesex Hospital. The breach alleged by Dr Zaman was requiring him to attend a competitive interview on 3rd April 2003 for a GPR post. Following the interview he was not allocated such a post.

2. By Notice dated 4th June 2009 the Deanery applied to strike out the High Court Claim as an abuse of process. Dr Zaman had pursued complaints against the Deanery in the Employment Tribunal. The first claim, made on 9th July 2003 ('the discrimination claim'), was of direct race and sex discrimination by requiring him to attend a competitive interview for a GPR post. The Employment Tribunal dismissed his discrimination claim by its judgment on 14th February 2004. Dr Zaman made a second complaint to the Employment Tribunal on 6th August 2004 of victimisation under the Race Relations Act 1976 ('the victimisation claim'). The victimisation was alleged to have taken place in November 2003 and May and June 2004 and to have been constituted by unhelpful comments made by the Deanery which it forwarded with his application for a GPR post to the National Clearing Service. It was alleged that these comments were made because he had previously made a complaint of race and sex discrimination. The Employment Tribunal by a judgment on 18th July 2006 upheld Dr Zaman's victimisation claim. Following a remedies hearing, by judgment on 8th May 2007 Dr Zaman was awarded compensation for victimisation in the sum of £15,430.72.

**The Grounds of Appeal
**3. Miss Romney Q.C. for the Deanery pursued three of the original five grounds of appeal. These are:

(1) The Master erred in his application of the principles on abuse of process explained in Sheriff v Klyne Tugs [1999] IRLR 481 and London Borough of Enfield v Sivanandan [2005] EWCA Civ 10; [2005] All ER (D) 165 by focussing upon the separate causes of action in the High Court claim and those in the discrimination claim before the Employment Tribunal rather than upon the remedies available to Dr Zaman and/or the facts giving rise to the claims;

(2) The Master fell into error in holding that because compensation was not decided by the Employment Tribunal hearing the discrimination claim there was no abuse of process in pursuing the High Court claim;

(3) Had Dr Zaman wished to pursue a claim in breach of contract, he should have reserved damages for loss of a chance of qualifying and practicing as a GP to a High Court claim and confined his claim for compensation in the discrimination and victimisation claims to hurt feelings and psychiatric injury.

**Summary background facts
**4. This summary of facts is taken in part from the judgment of the Master supplemented by the pleadings before and the judgments of the Employment Tribunal. The summary is not to be taken as making any findings of fact.

5. Dr Zaman applied for a Vocational Training Post under the GPVTS. The Deanery administers the applications for and allocates places on the Scheme in the London Area. Dr Zaman was informed that the only post which would be appropriate for him was for six months as a Senior House Officer in A&E followed by twelve months as a GPR. He was interviewed for a post at the North Middlesex Hospital. He was successful at interview and was offered a post in A&E where he was to work for his first six months. Before he accepted the post he was told by an employee of the Deanery that before he could undertake the further twelve months as a GPR he would be required to attend a further interview. This was because a GP trainer had not been present at the first interview. Dr Zaman says that he was told that the second interview would be a mere formality. By letter dated 20th October 2002 the Deanery offered Dr Zaman the North Middlesex post. The letter described the offer as a 'firm offer of training'. It also referred to the requirement for Dr Zaman to attend an interview for the GPR post.

6. The terms of the offer of training posts which was made by the Deanery to and accepted by Dr Zaman in October 2002 are at the heart of the breach of his contract claim.

7. Dr Zaman completed all training requirements of his A & E post. By letter dated 4th March 2003 the Deanery informed him:

"We are currently in the process of organising GPR placements for the August 2003 intake. As discussed before your appointment at North Middlesex you will have to be interviewed for a General Practice post."

The interview for the GPR post which took place on 3rd April 2003 was not a formality but a competitive interview. Dr Zaman failed to obtain the GPR post.

8. A Dr Darkwah was made and accepted an offer of training similar to that made to Dr Zaman. She was in a six month post at Newham when Dr Zaman was at North Middlesex. Like Dr Zaman Dr Darkwah was told that the interview before an offer of a twelve month GPR position would be a formality.

9. Unlike the interview which Dr Zaman attended on 3rd April 2003, the interview which Dr Darkwah attended for a GPR position was not formal and competitive. She was not in competition with external candidates and was appointed to a GPR post.

10. Dr Zaman recorded a conversation he had with Dr Darkwah about her appointment to the GPR post. In November 2003 Professor Jackson, Dean of GP Education at the Deanery, complained to the General Medical Council about Dr Zaman recording the conversation with Dr Darkwah.

11. By his discrimination claim in the Employment Tribunal Dr Zaman complained that the Deanery had treated him less favourably than Dr Darkwah on grounds of his race and/or sex by requiring him to compete with others at interview for a GPR post. Dr Zaman's discrimination claim failed and was dismissed by the Employment Tribunal on 14th December 2004.

12. Dr Zaman reapplied to the Deanery for a GPR post for the August 2004 term. On 7th May 2004 he was informed that he was not successful. He was kept on a list of reserve candidates and was given the option of having his application forwarded to the National Clearing service. He accepted this option.

13. On 8th June 2004 Dr Zaman was informed that his name would not be put into National Clearing because of some comments the Deanery had put on his application form when forwarding it to them. As a result of those comments he was considered unsuitable for clearing.

14. Dr Zaman relied upon these incidents in November 2003 and May and June 2004 as the basis for his successful claim of victimisation under the Race Relations Act 1976.

**The Employment Tribunal Proceedings
*The discrimination claim
*15. By his discrimination claim Dr Zaman complained of less favourable treatment than Dr Darkwah a female doctor of black African origin. The Employment Tribunal identified the issue for them as being:

"Was the requirement for the Applicant to attend a competitive interview discriminatory?"

16. The Employment Tribunal made the following findings, which have a bearing on the issue in the High Court claim. The Tribunal held:

"6.1 There was clearly a misunderstanding between the Claimant and Dr Lints as to the nature of his appointment to the North Middlesex Hospital following an interview on 4 October 2002. The misunderstanding was as to whether (as the Claimant believed) the appointment was to a six month post at the hospital which would automatically be followed by twelve months of GPR training to be organised by the Respondents in a GP practice, or whether (as maintained by Dr Lints) the appointment was only 'stand alone' for six months at the hospital with no commitment to GPR training thereafter, should the Claimant fail an interview.

6.2 The Claimant had reasonable grounds for believing that his appointment included the GPR element and that, whilst he would be required to attend an interview before receiving the offer of a GPR post, this interview would be a formality and only necessary because there had been no GP tutor on the interview panel at North Middlesex Hospital on 4 October 2002. He reasonably believed that his progression to the twelve month GPR element of his training was assured and dependent only upon 'appraisal, progress and completion' of the six month hospital post, as set out in his letter of appointment."

17.  The Tribunal held at paragraph 6.11:

"It is clear that there was a lack of clarity in the manner in which the Respondents dealt with the appointments of Dr Darkwah and the Claimant, which caused each of them to believe that they were appointed on a 'fully packaged GP VTS'."

18. The Tribunal did not and was not required to make any finding as to the terms of the contract between Dr Zaman and the Deanery. The Tribunal was concerned to decide whether his treatment by the Deanery was less favourable than that of Dr Darkwah. It decided that it was. The Tribunal then considered whether the less favourable treatment was on grounds of either race or sex. It decided that it was not. Accordingly the discrimination claim was dismissed.

*The victimisation claim
*19. Dr Zaman claimed that he had been treated less favourably by the Deanery because he had brought the discrimination claim. The issue for the Employment Tribunal to decide was whether in passing to Clearing in 2004 adverse comments on his application, the Deanery had treated Dr Zaman less favourably because he had made a complaint of discrimination to an Employment Tribunal.

20. The findings of fact made by the Employment Tribunal are rightly concerned with events following the application made by Dr Zaman in February 2004 for a GPR post for August 2004. In particular, findings are made regarding the comments the Deanery attached to the application when it was passed to the National Clearing Service.

21. The Employment Tribunal found that the action of the Deanery in passing to the National Clearing Service unfavourable comments on his application was taken because Dr Zaman had made a discrimination claim.

22. At the remedies hearing the Employment Tribunal considered whether Dr Zaman had lost a thing of value by reason of the victimisation, namely the chance to qualify as a Medical General Practitioner. It therefore considered the chance of Dr Zaman gaining a GPR post if the adverse comments had not been included on his application sent to the National Clearing Service. At paragraph 35 the Employment Tribunal held:

"In our view the Claimant failed to demonstrate by a long way that there was a real or substantial rather than a highly speculative chance that any Deanery and in particular those we have identified would have acted so as to confer on him the benefit of appointment to a GPR post. The burden of doing so lay firmly on the Claimant and since his prospects of success were no more than negligible there were no prospects of success for the Tribunal to assess."

23. Accordingly the Tribunal did not make any award of compensation in respect of the loss of a chance of successfully obtaining a GPR post through Clearing.

*The High Court contract claim
*24. By the Particulars of Claim Dr Zaman alleges that by letter dated 25th October 2002 he accepted an offer of a post at the North Middlesex Hospital on the basis that the Deanery had agreed (subject to the production of satisfactory standard occupational health police checks and references and subject to the satisfactory completion of the SHO post) that it would allocate him a twelve month post as a GPR to enable him to complete his training as a general practitioner.

25. Dr Zaman satisfactorily completed all the requirements of the post in A&E at the North Middlesex Hospital.

26. The interview attended by Dr Zaman on 3rd April 2003 for appointment to a GPR post was competitive and he did not succeed in obtaining such a post.

27. Dr Zaman contends that the Deanery was in breach of contract in that it failed to appoint him to the GPR post. He contends that this was in breach of his agreement with the Deanery that he would be appointed to such a post after his six months in A&E.

28. Damages for breach of contract are claimed in respect of the period from August 2003, the termination of the post in A&E. Damages are claimed in respect of the period of GPR training and thereafter based on the loss of the chance of becoming a General Practitioner.

*The Judgment of Master Roberts
*29. Master Roberts considered whether there was issue estoppel in either the narrow sense or the broad sense arising from the judgments of the Employment Tribunal. He considered the contention on behalf of the Deanery that Dr Zaman had already litigated his claims for loss of a chance to become a GP and damages for depression and psychiatric injury in two Tribunal claims.

30. It was noted that Dr Zaman made no claim before the Employment Tribunal for breach of contract. This was conceded by counsel for the Deanery in her skeleton argument. At paragraph 11 Master Roberts found that:

"…the issues before the first Employment Tribunal were completely different from those in the instant proceedings. The first Tribunal was not asked to decide whether Dr Zaman entered into a contract and whether there had been a breach of that contract but whether Dr Zaman had been treated less favourably than Dr Darkwah and if so, whether this was on grounds of his race or sex. …the key findings in respect of the respective proceedings are fundamentally different."

31. The Tribunal considering the discrimination claim found that Dr Zaman had not been treated less favourably than his comparator on grounds of race or sex and made no findings as to his loss of a chance of becoming a GP. Accordingly Master Roberts rejected the Deanery's argument that there was issue estoppel by reason of the claim for the loss of the chance of becoming a GP made in the discrimination proceedings.

32. At paragraphs 23 and 24 of his judgment Master Roberts rejected the argument then being advanced on behalf of the Deanery that the claim for loss of a chance now being advanced in the High Court proceedings is the same as that in the victimisation claim. Rightly there is no appeal against that conclusion.

33. In deciding whether the High Court claim is an abuse of process, Master Roberts considered Johnson v Gore Wood [2002] 2AC 1 and Stuart v Goldberg Linde [2008] 1 WLR 823. He accepted the argument on behalf of Dr Zaman that Sheriff v Klyne Tugs [1991] IRLR 481 is distinguishable from his case. In Sheriff the same issue of conduct, forcing the Muslim complainant to eat pork, was at the heart of the employment tribunal race discrimination proceedings and of the claim for personal injuries in the County Court. In the case of Dr Zaman the issues of race discrimination and breach of contract were separate and distinct.

34. Miss Romney pointed out to the Master that many of the factual issues in the High Court claim had been investigated in the discrimination proceedings. Citing Stuart v Goldberg Linde in which Lloyd LJ held at paragraph 47:

"The overlap between the two Actions needs to be assessed by reference to the substance of the respective claims, not by a literal comparison of the two statements of case,"

Master Roberts concluded in relation to the significance of the overlap of factual issues in the current High Court proceedings and the discrimination proceedings that:

"…although there is much common ground between the subject matter of the racial discrimination proceedings and the present action, the substance of the issues to be decided in the respective claims is very different. As a consequence I find that the case of Sheriff is distinguishable."

35. Miss Romney relied upon LB Enfield v Sivanandan [2005] AER (D) 165 in which Wall LJ observed at paragraph 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."

to contend that the High Court claim was a re-labelling of the Employment Tribunal claims.

36. Master Roberts found that Sivanandan was distinguishable from the case of Dr Zaman because he is not seeking to pursue the same grievances in the High Court as in the discrimination proceedings but different issues.

37. In accordance with the statement of principle in Johnson v Gore-Wood Master Roberts undertook a broad merits-based judgment of whether the High Court proceedings were an abuse of process. He correctly directed himself that the Deanery had the burden of proving that the breach of contract action in the High Court was an abuse of process.

38. In reaching a broad merits-based judgment Master Roberts took into account the public and private interests involved and all the facts of the case, focusing attention on whether Dr Zaman was misusing or abusing the process of the Court. He stated that he had considered in particular five matters:

(1) Inability to bring the breach of contract claim in the Employment Tribunal;

(2) Contract proceedings involve separate and distinct issues from discrimination and victimisation proceedings;

(3) Notification of contract proceedings;

(4) Change of position;

(5) Prospect of success.

39. The decision of the Master on the second matter, that the breach of contract proceedings involve in substance fundamentally different issues to those involved in the discrimination proceedings, gives rise to the first two grounds of appeal.

40. At paragraph 49 of his judgment Master Roberts held:

"Applying a broad merits-based approach, I find that the Defendant has failed to prove that Dr Zaman by bringing High Court proceedings for breach of contract is misusing or abusing the process of the Court. …I find that Dr Zaman could not have brought the breach of contract case before the Employment Tribunals because he was not an employee of the Defendant or apprenticed to it, and his claim exceeds £50,000. The breach of contract proceedings involve issues which are fundamentally different in substance from those involved in the racial discrimination and victimisation proceedings. …. The effect of the Defendant's abuse of process argument in the present case would be to use the salutary principle to shut Dr Zaman out from bringing before the Court a genuine cause of action for breach of contract."

**Submissions
*41. At the hearing of the appeal before me Miss Romney Q.C. made it clear that she was not saying that this was a case of issue estoppel. She contended that the High Court proceedings were an abuse of process as explained in Henderson v Henderson (1843) 3 Hare 100 and in Johnson v Gore Wood. As was observed by Stuart-Smith LJ of Sheriff at paragraph 23 so in this case Miss Romney recognised that this is not a case of res judicata in the strict sense because the cause of action was not the same in the High Court and the Employment Tribunal proceedings. However the principle in Henderson v Henderson* applies to matters which could have been raised in previous proceedings but were not.

42. Miss Romney submitted that the Master erred in distinguishing Dr Zaman's case from Sheriff and Sivanandan. Miss Romney relied upon those cases to contend that what is material in deciding whether proceedings are an abuse of process is whether the same remedy is available and is being sought in the proceedings being challenged as in previous proceedings. In Sheriff, Stuart-Smith LJ held it material to the decision as to whether a subsequent claim in the County Court for damages for personal injury was to be struck out that it was:

"…a claim for compensation for injury sustained by the appellant arising out of his employment with the respondent (i.e. through the master's conduct) and in respect of which the industrial tribunal had jurisdiction."

In Sivanandan at paragraph 133 Wall LJ considered it material to determining whether proceedings should be struck out as abusive that any damages for either breach of contract or unfair dismissal based on a breach of a statutory obligation would have been subsumed in the claim which Ms Sivanandan had brought under the Race Relations Act 1976.

43. The remedy sought by Dr Zaman in the High Court Claim is the same as that in the discrimination claim: damages for loss of the chance of becoming a General Practitioner. Miss Romney contended that in his case as in that of Ms Sivanandan any damages for breach of contract would have been subsumed in a successful race discrimination claim before the Employment Tribunal. Accordingly the High Court Claim is an abuse of process.

44. It was submitted by Miss Romney that in accordance with the approach in Sheriff and Sivanandan the Master should have paid regard to whether the High Court claim was in effect the same as that brought in the discrimination and victimisation claims but relabelled. Those cases illustrate that it is no answer to a plea of abuse of process that the particular form of claim being challenged could not have been brought in the Employment Tribunal but had to be brought in the County Court or the High Court.

45. Secondly, if seeking the same remedy does not constitute abuse of process, Miss Romney contended that pursuing a case which rests on the same factual issues as earlier litigation was held in Sheriff and Sivanandan to constitute an abuse of process. The same factual issues are at the heart of the High Court claim brought by Dr Zaman and the earlier discrimination proceedings. The Employment Tribunal in the discrimination proceedings had to consider the circumstances of the offer of a post made by the Deanery to Dr Zaman in October 2002 in order to determine whether he had received less favourable treatment than his comparator, Dr Darkwah. Miss Romney contended that in the discrimination proceedings the issue of whether the A&E post was a stand alone post or part of an offer of a GPTS post was litigated. She contended that Dr Zaman is bringing the same case and making the same assertions which the Employment Tribunal found not to have been established. All the evidence and the assertions are the same in the High Court Claim as in the discrimination claim. They have been relabelled as breach of contract. The Master fell into error by considering whether Dr Zaman was advancing different causes of action rather than considering whether he was relying on the same factual assertions.

46. Thirdly, Miss Romney contended that Master Roberts erred in law in failing to hold that Dr Zaman was precluded from now seeking damages in a breach of contract claim for loss of the chance of qualifying as a GP because he did not reserve damages for breach of contract to High Court proceedings. If he had wished to do so he should have confined the remedy in his discrimination and victimisation claims to compensation for hurt feelings and psychiatric injury.

47. Mr Laddie for Dr Zaman contended that the Master did not err in reaching his decision not to strike out the High Court Claim. He directed himself correctly in law on abuse of process and applied it correctly to the High Court claim. The essence of all the grounds of appeal which the Deanery is pursuing is that Dr Zaman's High Court claim is an abuse of process because it has already been litigated or should have been litigated in the Employment Tribunal or that he should have warned the Deanery that it would be separately litigated in High Court proceedings.

48. As for the first ground of appeal it was contended for Dr Zaman that Sheriff does not establish as a matter of principle that a coincidence of remedy claimed in two sets of proceedings renders the second set of proceedings an abuse of process. Mr Laddie referred to paragraph 24 of Sheriff in which Stuart-Smith LJ applied the principle in Henderson v Henderson in circumstances in which the same issue of the conduct of the Master of the respondent's vessel lay at the heart of both the proceedings in the employment tribunal and the county court action. Mr Sheriff could have brought the whole of his claim for compensation in the tribunal. He did not do so. The County Court proceedings were an abuse of process.

49. Mr Laddie contended that Sivanandan turned on its own facts. In any event the observations on abuse of process were not necessary to the decision of the Court of Appeal. Wall LJ held that Ms Sivanandan's claim for breach of contract had been struck out by the Employment Tribunal. The issue of breach of contract was therefore res judicata. In considering abuse of process on the facts of that case Wall LJ held at paragraph 138:

"…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."

That is not so in Dr Zaman's case. The claim of discrimination was different from that for breach of contract.

50. In the case of Dr Zaman it was contended by Mr Laddie that the Master rightly held that the same issue was not at the heart of the discrimination proceedings and the High Court claim. In the first, the issue was whether Dr Zaman had been treated less favourably than his comparator on grounds of race or sex. That issue did not turn on whether the Deanery was contractually bound to provide a GPR post to Dr Zaman in 2003 without a competitive interview which was the issue in the High Court claim.

51. Mr Laddie contended that the argument that because there may be overlapping remedies sought or common issues of fact in the Employment Tribunal and in the High Court rendered Dr Zaman's current claim an abuse of process is an expansion of the Henderson v Henderson principle. He questioned why overlapping remedies and facts in two sets of proceedings should render the second set of proceedings abusive. He pointed out that commonly there are overlapping remedies and facts in unfair and wrongful dismissal proceedings.

52. As for the third ground of appeal, Mr Laddie submitted that the Henderson v Henderson principle explained in Johnson v Gore Wood that it may be an abuse of process to raise a claim which could have been raised in earlier proceedings could not preclude Dr Zaman from pursuing his High Court claim. He could not have brought a claim for breach of contract against the Deanery in proceedings before the Employment Tribunal. It was not in issue that since Dr Zaman was not an employee of the Deanery the Tribunal would have no jurisdiction to entertain his claim for breach of contract. For Henderson v Henderson to apply there has to have been a possibility of pursuing the second claim as part of the first claim.

53. Mr Laddie contended that Dr Zaman could be under no obligation to reserve his right to pursue a breach of contract claim in the High Court as he could not have brought such a claim against the Deanery before the Employment Tribunal.

**Discussion
*54. The application made by the Deanery to strike out the High Court claim was made on the basis that it was an abuse of process. Miss Romney did not seek to rely on issue estoppel or res judicata 'in the strict sense'. The three grounds of appeal before me are variants on an argument that the Master erred in failing to hold that the High Court claim should be struck out as an abuse of process. Miss Romney rightly drew attention to the dictum of Thomas LJ in Aldi Stores Ltd v WSP Group plc* [2008] WLR 748 on the approach of an appellate court to decisions whether proceedings are an abuse of process. At page 762 paragraph 16 Thomas LJ held:

"…an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him."

55. It is for a Defendant who seeks to strike out a claim to establish that it constitutes an abuse of process. The proper approach to the question of whether proceedings constitute an abuse of process was comprehensively considered and set out in Johnson v Gore Wood. Lord Bingham held at page 31 that:

"…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. …there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.

…[there should 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, focussing attention on the crucial question of 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."

56. Whilst Sheriff and Sivanandan provide illustrations of abuse of process where a later claim was in essence the same as an earlier claim which had been compromised or dismissed they do not lay down any new principles. Sheriff was decided before Johnson v Gore Wood. Johnson v Gore Wood was not considered in the judgment in Sivanandan. Those cases turn on their own facts.

57. In this case the difference between the issues in the High Court claim and the discrimination claim can be readily demonstrated by the fact that the outcome of one does not determine the outcome of the other. Dr Zaman failed to establish that he was treated less favourably than Dr Darkwah by reason of his race in not being given a GPR without a competitive interview. While the discussions and correspondence Dr Zaman had with the Deanery in 2003 regarding his appointment formed part of the factual background to his discrimination claim, whether or not he and Dr Darkwah had a contractual entitlement to automatic progression to a GPR post was not the issue before the Tribunal. The success or failure of his discrimination claim did not turn on whether Dr Zaman had such a contractual entitlement. However the success of his High Court claim does turn on whether he can establish such an entitlement.

58. In my judgment pursuing the contract claim is not, in the words of Lord Bingham in Johnson v Gore Brown, 'unjust harassment' of the Deanery.

59. As for the argument that the High Court proceedings are abusive because the remedy sought is the same as would have been available had the discrimination claims (not the victimisation claim) succeeded, it is usual for there to be overlap in remedies available in unfair and wrongful dismissal claims. This does not render later wrongful dismissal breach of contract claims abusive. In Fraser v HLMAD Ltd [2006] EWCA Civ 738; [2006] ICR 1395 Mummery LJ observed that if a claimant bringing unfair dismissal proceedings wished to recover over £25,000 (the limit for contract claims in the Employment Tribunal), his wrongful dismissal claim should only be made in High Court proceedings. No argument has been advanced and I see no reason in principle why the same observation should not apply to discrimination and breach of contract proceedings.

60. With regard to the second ground of appeal, it is common for findings of fact in Tribunal proceedings to be relied upon in subsequent High Court proceedings for breach of contract. Overlapping factual issues do not render the later proceedings abusive.

61. As for the argument that the High Court claim is abusive because Dr Zaman failed to reserve any breach of contract damages to the High Court in his discrimination and victimisation claims, he could not pursue a contract claim in the Employment Tribunal against the Deanery as it was not his employer. In my judgment the Master was entitled to hold that it was not abusive for Dr Zaman not to notify the Deanery when pursuing his Tribunal claims that he would or may pursue a claim in the High Court for breach of contract. Further, Dr Zaman had asserted in April 2003 that he accepted the post offered by the Deanery because he would be given a GPR post without a competitive interview. The Deanery must have been aware that he could not pursue a contract claim against them in the Employment Tribunal and that he was asserting that in 2003 he was entitled to a GPR post. Therefore, if notice were needed, the Deanery should have been on notice that Dr Zaman may pursue a claim in the High Court against them for breach of contract.

62. I wish to pay tribute to the careful analysis of the law and the facts undertaken by Master Roberts in determining the application by the Deanery to strike out the claim in breach of contract brought by Dr Zaman. The Master carefully took into account and balanced all relevant factors as required by Johnson v Gore Brown. He considered and determined all the issues upon which he was addressed and came to a conclusion which was open to him. There is no error of law or perversity in the judgment of Master Roberts. The appeal from the dismissal of the application by the Deanery to strike out Dr Zaman's High Court claim is dismissed.