Sun, 15 Sep 2013
By Charles Crow
Charles Crow considers how Claimants can move their cases between the Tribunal and the Court without getting caught by the doctrine of estoppel.
It is not uncommon (due to the short limitation period and/or clients taking advice post-issuing an ET1) for the penny to drop that the issued discrimination (personal injury) and/or wrongful dismissal (worth more than £25,000) claim would be better proceeded with in the County Court. The question then arises: how to extricate the client from the Tribunal without falling foul of any of the various species of estoppel which would lead to a defence of ‘abuse of process’ in the County Court?
In the good old days, a helpful distinction had developed (enshrined/preserved in rule 25) between a plain withdrawal and a dismissal (upon withdrawal). Following the case of Lennon v. Birmingham City Council  IRLR 826 (CA), it was well known that a dismissal by the Tribunal (even without a judicial determination, i.e. upon withdrawal) was likely to be sufficient to prevent the substance of that claim being revived in the County Court. Accordingly, Claimants wishing to preserve that option sought withdrawal, and opposed any application for dismissal. Verdin v. Harrods  IRLR 339 (EAT) confirmed that a withdrawal without dismissal would not give rise to an estoppel and emphasised that the questions to be addressed by Tribunals deciding whether to dismiss or to allow a plain withdrawal were those highlighted in Ako v Rothschild Asset Management, namely: 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 process to allow that to occur? (If the answer to both of those questions is yes, dismissal was appropriate.) This clearly involved the ET in deciding whether a subsequent claim would amount to an abuse.
The new rules as originally drafted provided for automatic dismissal upon withdrawal and made no allowance for any alternative order. The consultation gave rise to a recommendation for an amendment to protect unwitting Claimants. The result is new rule 52:
Dismissal following withdrawal
52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising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.
The following questions, it seems, arise:
- Given that ‘claim’ is defined in rule 1 as “any proceedings before an ET making a complaint”; does the reference to dismissal as a bar mean that it is only intended (as far the ET is concerned) to bar a further ET claim, i.e. dismissal under rule 52 does not prevent a County Court action and/or leaves the issue of estoppel open for the County Court to determine?
- If so, what is the purpose of the exceptions at (a) and (b) (bearing in mind how unlikely it will be that the withdrawing Claimant will wish to reserve the right to bring a further ET claim, and given the resemblance these questions have to the questions referred to in Ako and Verdin)?
- If the intention of rule 52 is to make plain that a dismissal under that rule will, consistent with the case of Lennon, be a bar to any further claim on the same grounds regardless of a change in jurisdiction (i.e. a subsequent County Court claim), should that be clarified in the rule – so that Claimants are aware of the need to make a case against dismissal?
- If one or both exceptions are made out: what is the appropriate order?
Whilst only future guidance on the new rule by the appellate courts will determine the issue, Claimants wishing to withdraw so as to change jurisdictions may be well advised to oppose the automatic dismissal of their claims under rule 52 (by reference to the exceptions therein) and Respondents should seek dismissal. Either way, County Court judges are likely, at some point, to be required to determine whether the new rule has altered the settled position that existed (as per Lennon and Verdin).
For those of you that love an article that raises more questions than it answers: it appears you have just had a treat! For the rest of you: watch this space.
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 A view taken by one Employment Judge before whom this issue has arisen