Appeal No. UKEAT/0538/05/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 2005
Judgment handed down on 21 December 2005

Before
HIS HONOUR JUDGE RICHARDSON
(SITTING ALONE)

MS ANNE-MARIE VERDIN 	APPELLANT

HARRODS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR NIRAN DE SILVA
(of Counsel)
Instructed by:
Messrs Archon Solicitors
Martin House
5 Martin Lane
London EC4R 0DP	
For the Respondent	MR PAUL NICHOLLS
(of Counsel)
Instructed by:
Messrs Nabarro Nathanson Solicitors
Lacon House
Theobald Road
London WC1X 8RW	

SUMMARY

The Tribunal Chairman erred in law in concluding that Mrs Verdin’s breach of contract claim should be dismissed.

Rule 25 of the Employment Tribunal Rules 2004 is to be construed in the light of Ako v Rothschild Asset Management [2002] IRLR 348.  

A claim should be dismissed if (a) the Claimant is intending to abandon it or (b) if the Claimant is intending to resurrect it, it would be an abuse of the process to allow that to occur.

The Tribunal may dismiss part of a claim on withdrawal.  

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Mrs Anne-Marie Verdin against a decision of the Employment Tribunal sitting at London Central by Chairman alone dated 15th August 2005.  In her Tribunal proceedings Mrs Verdin had made several claims against her former employers (“Harrods Ltd”), the Respondent.  One of those claims was for breach of contract.  She sought to withdraw that claim in order to pursue it later in the High Court.  The effect of the Tribunal’s decision was that it would only permit her to withdraw that part of the claim if it was formally dismissed.

2.	New rules of procedure were instituted for Employment Tribunals in 2004 by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004: sch 1.  They are the Employment Tribunal Rules of Procedure 2004 (“the 2004 Rules”).  This appeal concerns rule 25, which was a substantially new provision.  On what principles ought a Tribunal to dismiss a claim?  Has the Tribunal any power to dismiss part of a claim?  

3.	There is also a cross appeal by Harrods from the refusal of the Tribunal to award costs in its favour.

4.	It will be helpful, as I recount the facts, to have in mind rule 25 of the 2004 Rules.  This reads as follows:
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).
(5)		The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so”.

The Facts

5.	Mrs Verdin was a highly paid and senior employee of Harrods.  She was Marketing and Communications Director.  Her pay before tax was more than £200,000 per year together with a package of benefits.  There was provision for a bonus.

6.	Under her contract of employment dated 17th June 2003 she was entitled to notice, but Harrods reserved the right to pay her in lieu of notice.  The provision, clause 3, reads:

“The Company will be required to give you 6 months’ notice …..  The Company reserves the right to pay your salary in lieu of notice”

7.	On 14th February 2005 Mrs Verdin was dismissed.  The reason for her dismissal is a matter in dispute between the parties.  She says that she was dismissed because the Chairman of Harrods suspected that she was pregnant.  So, she says, Harrods discriminated against her on the grounds of her sex, and her dismissal was automatically unfair, as being for a reason related to her pregnancy.  She instructed solicitors.  She served a questionnaire under the Sex Discrimination Act 1975.  Harrods, on the other hand, says that she was dismissed for reasons relating to her performance and conduct.  It is not necessary for the purposes of this appeal to go into the details of that dispute.

8.	In the letter confirming her dismissal Harrods said it would pay her in lieu of notice in accordance with clause 3 of the contract.   It might be thought she would have been paid a lump sum; that is the general practice.  But Harrods paid by monthly instalments.  Mrs Verdin’s solicitors queried this.  Harrods, having also instructed solicitors, confirmed by letter dated 19th April 2005 that it would stop paying salary by instalments.  And so it did.  But it has not paid a lump sum either.

9.	Mrs Verdin presented her claim to the Employment Tribunal on 13th May 2005.  To the standard Claim Form was attached a document entitled “Details of Complaint”, prepared by Mr de Silva, who appears for Mrs Verdin in this appeal.  The Details of Complaint included the following claims.  Firstly, there was a claim for unlawful deduction of wages in respect of bonus for the year to January 2005 (paragraph 14).  Secondly, there was a claim for unlawful sex discrimination.  Thirdly, there was a claim for unfair dismissal.  Finally there came a section entitled “Breach of contract and victimisation in respect of notice pay”, which read as follows:

“18.		In the circumstances, the Claimant avers that the Respondent is in breach of contract in that it (a) failed to pay the Claimant her salary in lieu of notice as a lump sum on termination; and/or (b) has ceased to  make payment of her salary by instalments. 
19.		Having regard in particular (but without limitation) to the fact that there is no legal basis for the Respondent to avoid payment of the Claimant's salary, it is averred that the Respondent discriminated against the Claimant on the ground of the protected act referred to above by not continuing to pay her salary by instalments from 19 April 2005.
20.		For the avoidance of doubt, the Clamant makes no claim for breach of contract in respect of the non-payment of bonus and reserves the right to bring proceedings in respect of the same in the High Court”.  

10.	The reference to victimisation is, of course, a reference to section 4 of the Sex Discrimination Act 1975.  There is no limit on the size of the award which a Tribunal may make if such a claim is successful.  The reference to breach of contract is to a claim pursuant to the Employment Tribunals (Extension of Jurisdiction (England and Wales) Order 1994.  There is a limit to the size of such a claim.  By article 10 of the 1994 Order the tribunal may not order a payment exceeding £25,000 in respect of contract claims relating to the same contract.

11.	In June 2005 those advising Mrs Verdin had second thoughts about the contract claim.  Their reasoning was as follows.  If the Tribunal in due course should be satisfied that Harrods had unlawfully victimised Mrs Verdin by stopping her payment in lieu of notice, then she would effectively recover the full amount of it as part of her loss.  But if in due course the Tribunal should not be satisfied that it was victimisation, then she would only recover damages for breach of contract limited to £25,000.  Her contract claim was obviously worth more than that.  So it needed to be preserved in full against the possibility that the victimisation claim failed.

12.	On 30th June 2005 Mrs Verdin’s solicitors wrote to Harrods’ solicitors as follows –
	“We write further to receipt of your client's ET3.
We wish to clarify our client's position in so far as it relates to your client's failure to pay her notice pay.
It is our primary case that the decision to cease payments is victimisation.  It is, accordingly, appropriate to bring the claim for loss of notice pay as part of our client's claim of sex discrimination within these Tribunal proceedings. It also promotes economy of proceedings since, if the claim for notice pay is dealt with by the Tribunal as losses arising by reason of victimisation, there will be no need for separate High Court proceedings (subject to a possible claim in relation to the non-payment of bonus).
If, as we expect, the Tribunal agrees that our client was victimised then the claim or loss of notice pay will not be subject to the £25,000 limit. However, it is not our intention to limit our client’s claim for loss of notice pay to £25,000.  Accordingly, the claim for loss of notice pay is not being pursued as a claim for breach of contract in the Tribunal. If the Tribunal makes no finding of victimisation, we will pursue the claim in respect of unpaid notice in the High Court.
In order that the matters set out above are clear on the pleadings, we intend to ask the Tribunal to allow the ET1 to be amended according to the marked-up draft attached.  We will also notify the Tribunal of the reasons for the amendment/withdrawal of the breach of contract claim and ask the Tribunal to record the same”.

The proposed amended Details of Complaint omitted paragraph 18 altogether.  In paragraph 20 the words “in respect of the non payment of bonus” were omitted, so as to stipulate that no claim at all for breach of contract was made in the Tribunal proceedings.

13.	On 8th July 2005 Mrs Verdin’s solicitors wrote to the Tribunal as follows:

“We write with regard to proposed amendments to the Details of Complaint which forms part of our client's ET1. The amendments concern the withdrawal of the claim for breach of contract in relation to the Respondent's failure to pay our client her salary in lieu of notice on termination of employment and their ceasing to make payments of her salary by instalments.
It is our primary case that the decision to cease payments is victimisation. It is, accordingly, appropriate to bring the claim for loss of notice pay as part of our client's claim for sex discrimination within these proceedings.  However in the event that the Tribunal makes no finding of victimisation, our client would not wish to limit her claim for notice pay to the Tribunal breach of contract cap of £25,000.  Accordingly, the breach of contract claim is being withdrawn on the express basis that, if the Tribunal makes not finding of victimisation, our client will be free to pursue her claim in respect of unpaid notice in the High Court. 
Accordingly, we ask the Tribunal to allow the ET1 to be amended according to the marked-up attachment and to record the reasons for the withdrawal of the breach of contract claim..
We consider that the withdrawal of the breach of contract claim will result in an efficient streamlining of our client's claims and will thus assist the Tribunal in dealing with the proceedings efficiently and fairly. We have written to the Respondent's solicitors notifying them of this application and attach a copy of that letter”. 

Harrods’ solicitors objected to the course proposed on behalf of Mrs Verdin.  They pointed out that Mrs Verdin had without doubt brought her contract claim in the Tribunal.  They said any attempt to re-litigate it in the High Court would be prevented by one legal principle or another – res judicata, or issue estoppel, or abuse of process.  They said:

	“We can see no basis on which the Claimant should be allowed to withdraw that claim having brought it.  Her maximum recovery in this regard is accordingly £25,000.  Any shortfall from what would have been her maximum recovery had the claim been correctly brought and won is a matter between the Claimant and her solicitors” 

The Tribunal’s decision

14.	Under the 2004 Rules the Tribunal may hold a case management discussion at which it may resolve interlocutory matters: see rule 17 of the 2004 rules.   The dispute over withdrawal was the first issue determined at a case management discussion between the parties held on 15th August.

15.	The Chairman set out the rival positions of the parties.  Mrs Verdin wished for her breach of contract claim to be withdrawn and the Claim Form amended accordingly without her contract claim being dismissed.  Harrods accepted that Mrs Verdin was entitled to withdraw her breach of contract claim but argued that it should be dismissed under rule 25(4), for Harrods objected to Mrs Verdin reserving her position and having a second bite at the cherry in the High Court.  The parties referred to authorities, including Sajid v Sussex Muslim Society [2002] IRLR 113 and London Borough of Enfield v Sivanandan [2005] EWCA Civ 10.  The Chairman reserved her decision.

16.	She recorded her eventual decision in two places during the relevant part of her written reasons.  In paragraph 1.4 she said:
“The decision of the Chairman is to refuse the application for leave to amend to withdraw the complaint of breach of contract”

In paragraph 1.5.9 she said:

“It is still open to the Claimant to proceed with her complaint of breach of contract in the Employment Tribunal as currently pleaded and unless the Claimant indicates within 14 days of the promulgation of this decision that she intends to proceed with the claim of breach of contract in the Employment Tribunal that claim will be dismissed on withdrawal under rule 25(4) of the Employment Tribunal Rules of Procedure 2004”

Her reasoning appears from two passages:

“1.5.6.	Ms Verdin in the present case seeks to withdraw her complaint of breach of contract, rely on her claim of victimisation in the Employment Tribunal and then, if not successful, bring a claim of breach of contract in the High Court.  This is on a par with the situation in Sajid in that the subsequent proceedings in the High Court for breach of contract would be an attempt to re-litigate the same cause of action to recover the same sum due, if Ms Verdin is not successful with her claim of victimisation in the Employment Tribunal.

1.5.8	The Chairman was satisfied that the authorities indicate that having commenced a claim of breach of contract and wishing to withdraw it, the Claimant cannot simply request that it should not be dismissed to allow her to bring a claim in the High Court at some future date if she is unsuccessful in recovering the same sums through her complaint of victimisation in the Employment Tribunal”.

In reaching her conclusion, the Chairman referred to and seems particularly to have had in mind London Borough of Enfield v Sivanandan [2005] EWCA Civ 10.  

17.	If the Chairman is correct, the consequences are stark.  Mrs Verdin’s claim for breach of contract is potentially far more than £25,000.  Her counsel says it is worth more than £88,000.  If she succeeds in her contract claim in the Tribunal it will be capped at £25,000.  This seems a heavy price to pay for including it in the Tribunal proceedings inadvisedly, especially since her advisers repented within a few weeks - long before any hearing.  

Submissions on appeal

18.	Counsels’ principal submissions focussed upon the exercise of the power to dismiss a claim under rule 25, but it is important also to note their submissions on a procedural point, which led to close examination of rule 25 during submissions.

19.	On behalf of Mrs Verdin, Mr de Silva submitted in his skeleton argument that Mrs Verdin had an absolute right to withdraw part of her claim without it being dismissed, for rule 25(4) applies only where the whole claim has been withdrawn.  That is clear, he submitted, because rule 25(4) refers to “the proceedings” being dismissed, and rule 25(4) only comes into play where the whole claim is withdrawn – see rule 25(3).  In oral argument Mr de Silva did not abandon this point, but it is right to say that he did not put it forward with great enthusiasm.  For, when one analyses the purpose of the rule, it is difficult to see why the Tribunal should not have power to dismiss part of a claim.

20.	On behalf of Harrods, Mr Nicholls submitted that “claim” in rule 25 meant “cause of action”, and “part of his claim” meant an element in the claim such as a factual issue.  

21.	On the issue of dismissal of the claim, Mr de Silva submitted that in any event it would not be improper or an abuse of the process of the court for Mrs Verdin to take proceedings for breach of contract in the High Court should her victimisation claim fail.  The two claims are logically different.  The victimisation claim depends on whether the stopping of payment in lieu of notice was by reason of the service of a questionnaire under the Sex Discrimination Act 1975.  The breach of contract claim depends on an undoubted contractual right which exists independently of the claim under the 1975 Act.   There is good reason to litigate the latter claim in the High Court; otherwise it will be capped.  He took me to the authorities on withdrawal prior to the 2004 Rules.  I will deal with those authorities later in this judgment.  

22.	Mr de Silva submits Mrs Verdin is impaled on Morton’s fork.  If the Tribunal is right, so that it would be an abuse of the process of the Court to take proceedings in the High Court for breach of contract, then this will be the case whether the breach of contract claim is withdrawn or dismissed.  Conversely, if the Tribunal is wrong, and it will not be an abuse of the process of the court to take proceedings in the High Court, then it will not matter whether the breach of contract claim is withdrawn or dismissed.  He submits that the Tribunal was right to conclude that it would be an abuse of the process of the Court to issue proceedings in the High Court.  He says the case was on a par with London Borough of Enfield v Sivanandan.

Finality in litigation

23.	In order to understand the function of rule 25 of the 2004 Rules it is necessary to appreciate the legal principles which operate to bar or restrict litigation of similar matters on different occasions.  There are three such principles.  For the purpose of this judgment I need describe them only in general terms.

24.	Firstly, where a cause of action has been determined in litigation between two parties, as a general rule that cause of action cannot be raised again in subsequent litigation between them.  The technical term for this principle is cause of action estoppel.  Secondly, where an issue has been determined in litigation between two parties, as a general rule that issue cannot be raised again in subsequent litigation between two parties.  The technical term for this principle is issue estoppel.  Thirdly, even where a cause of action or issue has not been determined in prior litigation between two parties, there may be circumstances in which it would be an abuse of process for the cause of action or issue to be raised between them.  The categories of abuse of process are not closed.  There may be an abuse of process if a party seeks to litigate an issue which should have been raised in earlier proceedings.  There may be an abuse of process if a party seeks to litigate an issue which has been decided in a test case by which it was understood he would be bound.

Finality, withdrawal and dismissal

25.	Earlier versions of the Rules had no equivalent to rule 25, but contained a provision that a tribunal might dismiss the proceedings if at any time the claimant gave notice of withdrawal (see r 15(2)(a) of the 2001 Rules).  It was common practice for a tribunal to dismiss proceedings if the claimant gave notice of withdrawal.

26.	The effect of dismissal upon notice of withdrawal was often to create a cause of action estoppel under the first principle which I have set out above.  The previous determination for the purposes of that principle did not necessarily have to be a reasoned decision on the merits.

27.	Thus, in Barber v Staffordshire County Council (1996) IRLR 209 Mrs Barber withdrew an originating application claiming a redundancy payment because of a decision of the House of Lords.  The originating application was dismissed upon her withdrawal.  But a decision of the European Court opened the way for her again.  So she presented a new application claiming a redundancy payment and unfair dismissal.  It was held that her new application for a redundancy payment was barred by cause of action estoppel.  The doctrine applied even though there had been no determination on the merits.  See also Lennon v Birmingham City Council [2001] IRLR 826.

28.	Mrs Barber’s unfair dismissal claim was barred (if I understand the decision correctly) as an abuse of the process, because it could and should have been brought at the same time as the earlier redundancy claim.

29.	However, although in Barber and Lennon dismissal on withdrawal gave rise to an estoppel per rem judicatam, this proved not to be an inflexible rule.    

30.	In Sajid v Sussex Muslim Society [2002] IRLR 114 Mr Sajid presented an application to an employment tribunal which included, among other claims, a claim for damages for breach of contract of £72,000.  His application reserved the right to commence proceedings in the High Court, recognizing that there was a limit of £25,000 on the tribunal’s powers.  Subsequently he began High Court proceedings.  His solicitors withdrew the breach of contract claim in the tribunal, but continued with the other claims.  The tribunal signed a decision to the effect that “the breach of contract claim is dismissed on withdrawal by the applicant”.

31.	It was held that this decision did not create an estoppel per rem judicatam, or otherwise bar the High Court proceedings.  Mummery LJ referred to the underlying policy of cause of action estoppel and related doctrines in the following way:
“The underlying policy of cause of action estoppel and related doctrines, which are usually classified under the heading res judicata, is that of finality in litigation and the avoidance of the multiplicity of proceedings.  Save in special circumstances, it is contrary to public policy and may be an abuse of the process of the court to attempt to reopen in new proceedings a case which has already been litigated and finally determined by a court or tribunal in proceedings between the same parties or issues which could have been litigated properly between the parties in relation to the subject-matter of the earlier litigation.  This doctrine embodies, in my view, a principle of justice, not just policy.  In the absence of special circumstances, it is unjust for a party who spent time and money in obtaining a final determination of a claim or an issue in a claim to be faced with fresh proceedings from the other party seeking to re-litigate the same cause of action or the same issue”.

He went on to say:

“Far from abandoning his claim for breach of contract, Dr Sajid was, in view of the quantum of his claim, seeking to preserve his full rights, having started proceedings in the High Court for same cause of action. He did so because of the limited nature of the jurisdiction of the Employment Tribunal over such claims. The order was made for the purposes of avoiding duality or multiplicity of proceedings, which would have been open to the objection of embarrassing duplicity, if they had not been determined in the way that they were by the Employment Tribunal. The order of 6th May was not, and could not have been, intended either by the parties or by the tribunal to constitute a final and binding determination dismissing Dr Sajid's claim. Its purpose was to enable his claim to be pursued and determined in a court which had the jurisdiction which the Employment Tribunal lacked”.

Laws LJ said:

“22.		I entirely agree. As my Lord has said, the policy which justifies the doctrine of cause of action estoppel is the need to prevent multiplicity of legal proceedings being raised upon the same issue. If this court were to allow this appeal, far from supporting that policy we should undermine it. The respondent's common law claim in the tribunal (being withdrawn) was, on 6th May 1999, dismissed upon the very premise and for the very reason that it should not be litigated there but in another forum. That dismissal thus supported the policy underlying the cause of action estoppel to which I have referred. 
23.		Mr Rogers' argument, if accepted, would entail the conclusion that a party acting as the respondent did here would find himself trapped by the very doctrine to which he had himself been loyal, forever barred from having his claim for damages over £25,000 litigated at all. If the law produced such a result we should be ashamed of it. But it does not. We do not allow salutary principles to be corrupted into instruments of injustice”. 

32.	A similar problem arose in Ako v Rosthchild Asset Management [2002] IRLR 348.  Mrs Ako presented a claim against Rothschild for unfair dismissal and race discrimination.  But one of the departments in which she was employed was transferred to another company.  She was advised by an officer of the Commission for Racial Equality to withdraw her originating application and present a new one naming both Rosthchild and another company.  Her first claim was dismissed on withdrawal.  Rosthchild argued that her second claim against it was barred.  This argument was rejected.

33.	Mummery LJ drew attention to the fact that there was, in employment tribunal, no equivalent to the procedure known in civil courts as discontinuance (see Civil Procedure Rules).  He said at paragraph 30:

“In my judgment, the reasoning in Barber and Lennon does not require that cause of action estoppel, as applied in the ordinary courts, should apply to employment tribunal cases where it is clear, on an examination of the surrounding circumstances, that the withdrawal of the application is in substance a discontinuance of the proceedings. Discontinuance does not release or discharge the cause of action. It preserves the right to establish an untried claim on the merits in other proceedings. If, as I have explained, this is so in ordinary courts, it does not make any sense that the position should be more strict in its application in the less formal setting of the employment tribunals. Unless and until the Regulations of the employment tribunals are amended to deal with this point, it would be advisable for employment tribunals, on being notified of the withdrawal of an originating application, to ask the applicant for a statement of the circumstances of the decision to withdraw before deciding whether to make an order dismissing the proceedings”.

Dyson LJ said at para 41:

“In my view, what emerges from these authorities is that there is no inflexible rule to the effect that a withdrawal or judgment by consent invariably gives rise to a cause of action or issue estoppel. If it is clear that the party withdrawing is not intending to abandon the claim or issue that is being withdrawn, then he or she will not be barred from raising the point in subsequent proceedings unless it would be an abuse of process to permit that to occur. On the facts of the present case, it is clear that Ms Ako did not intend to abandon her claim. Nor would it be unjust or unfair as between the parties to permit her to start again: no abuse of process is involved here”.

The new Rule

34.	Rule 25 of the 2004 Rules is substantially new.

35.	There are only two ways in which a claim or part of a claim may be withdrawn.  It may be withdrawn in writing, or it may be withdrawn orally at a hearing.  If it is withdrawn in writing, withdrawal takes effect on the date on which the employment tribunal office receives notification of it.  Withdrawal does not depend on any decision by the tribunal.  The consent of the opposite party is not required.  All that is required is that the opposite party is notified.  If the withdrawal is given orally at a hearing, withdrawal takes effect when the tribunal receives notice of it.  Again withdrawal does not depend on any decision by the tribunal.  The consent of the opposite party is not required.

The whole claim

36.	Where the whole claim is withdrawn, rule 25(3) sets out the effect of withdrawal.  The proceedings are brought to an end.  But there are two exceptions.  Firstly, there may still be proceedings as to costs, preparation time or wasted costs.  Secondly, there may be an application for the proceedings to be dismissed.  It is plain, however, that no application to dismiss is necessary to bring the proceedings to an end; rule 25(3) expressly says the proceedings are at an end.

37.	In my judgment the true purpose of rule 25(4) can be seen from authorities which I have cited above, including in particular the judgment of Mummery LJ in Ako.  

38.	It will be recalled that three separate principles govern finality of litigation.  The first of those three principles – cause of action estoppel – gave rise to the difficulties which were discussed in Barber, Lennon, Sajid and Ako.  But cause of action estoppel cannot arise unless there is an order disposing of the proceedings.  Cause of action estoppel cannot arise on a withdrawal which takes effect automatically.

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. 

40.	I agree with a submission made by Mr. Nicholls, that where one party withdraws the other party will generally be entitled to have the proceedings dismissed.  This is because the party who withdraws will generally have no intention of resurrecting the claim again, or if he does will generally have no good reason for doing so.  There is sometimes a temptation for a litigant, as the day of battle approaches, to withdraw a claim in the hope of being better prepared on another occasion.  That will be unacceptable.  Tribunals will no doubt be astute to prevent withdrawal being used as an impermissible substitute for an application for adjournment.  Occasionally, however, there will be good reason for withdrawing and bringing a claim in a different way.

Part of the claim

41.	What is the position where part of the claim is withdrawn against a party?  Here the position is not so straightforward.

42.	Rule 25 certainly permits withdrawal of part of the claim.  The procedure for withdrawal is the same as if the whole claim is withdrawn: see rules 25(1) and (2).   A claimant may withdraw part of his claim orally at a hearing or in writing to the employment tribunal office, saying what part is to be withdrawn and (if there is more than one respondent) against which respondents.  The Secretary must then inform all other parties of the withdrawal.  Withdrawal takes effect on the date on which the Employment Tribunal office receives notification of it (if it is in writing) or on the date on which the tribunal receives notice of it (if it is oral).

43.	Rule 25(3) does not expressly deal with the effect of withdrawal of part of a claim.  In my judgment, however, it is implicit in the rule that where part of a claim is withdrawn, proceedings in respect of that part of the claim are automatically brought to an end.  Proceedings as to costs, preparation time or wasted costs are not affected.  I say this for two reasons.  Firstly, withdrawal of part of a claim takes effect automatically without any provision for a court hearing, in just the same way that withdrawal of the whole claim takes effect.  Secondly, there are no provisions in the 2004 Rules to cater for any other eventuality.   So the withdrawal of part of a claim has the same effect as withdrawal of the whole claim, except, of course, that the balance of the proceedings will continue, unaffected by the withdrawal of part.

44.	Where a claimant withdraws part of his claim, does the party against whom it is withdrawn have a right to have that part of the claim against him dismissed? 

45.	In my judgment the party against whom part of the claim is withdrawn does have a right to apply to have that part dismissed.  I reach this conclusion for the following reasons.

(1) 	To my mind, the most important consideration is the purpose of rule 25, with its enhanced distinction between withdrawal and dismissal.  As I have found, an important part of the purpose is to enable the Tribunal to consider, at an early stage, whether the withdrawing party is intending to abandon the claim, and if the withdrawing party is intending to resurrect the claim in fresh proceedings, whether it would be an abuse of the process to allow that to occur.  But this question may arise if part of a claim is being abandoned, just as it may arise if the whole claim is being abandoned.  

Take as an example the case of Mr Sajid.  He commenced proceedings in the Tribunal on three different grounds.   He only withdrew the breach of contract claim.  Under the rules prior to 2004, if loyal to the decision of the Court of Appeal in Ako, the Tribunal would have enquired into Mr Sajid’s reasons, and only dismissed the breach of contract proceedings after such enquiry.  Under the new rules it would do so if this was Mr Sajid’s only claim.  But if Mr de Silva’s submissions are right, the Tribunal would not have any role in considering whether he intended to abandon that claim, or whether it would be an abuse of the process for him to do so.  I see no sensible reason for this distinction.

(2) 	On a first reading one might conclude that rule 25(4) only applies in respect of the whole claim, by virtue of the reference to it in rule 25(3), and by reference to the consequence, namely that “the proceedings” are dismissed.  But rule 25(4) does not expressly say “the whole claim”, and I think that the words “the claim” should be read as meaning any cause of action, and that “the proceedings” should be read as meaning the proceedings in respect of that cause of action.  In this way the essential purpose of rule 25, which does not to my mind depend on whether the whole or part of the claim is being dismissed, is fulfilled.

For these reasons I reject Mr. de Silva’s submission that the Tribunal had no jurisdiction to dismiss part of the claim.

The decision in this case

46.	However, I accept his submission that the Tribunal Chairman erred in law in her conclusions.  In paragraph 1.5.6 of her Reasons she said that the case was on a par with Sajid.   Thus far she was correct, and that should have led her to the conclusion that there was good reason for concluding that it would not be an abuse of the process to litigate the breach of contract claim elsewhere.  As in Sajid, it was only sought to withdraw the breach of contract claim by reason of the £25,000 limit on jurisdiction.

47.	Then, however, having cited London Borough of Enfield v Sivanandan (2005) EWCA CIV 10, she concluded that the authorities indicate that having commenced a claim of breach of contract and wishing to withdraw it, the Claimant cannot simply request that it should not be dismissed to allow her to bring a claim in the High Court at some future date if she is unsuccessful in recovering the same sums through her claim of victimisation.

48.	If the Tribunal Chairman derived some general proposition from Sivanadram to this effect, she was in my judgment wrong to do so.  In that case, the facts of which I do not need to rehearse at length, it was held that proceedings in the civil court were an abuse of the process because they represented an attempt to reinvent a claim of race discrimination and victimisation which had been struck out in the Tribunal.  Sivanandan was not a case where the applicant had withdrawn a claim because the Tribunal did not have the necessary jurisdiction to hear it.  Her claim in the Tribunal was struck out because of her conduct: see paragraph 49 of the judgment.  That claim included her breach of contract claim: see paragraph 110 of the judgment.  Contrary to the submission of Mr. Nicholls, Sivanandan is of little relevance to the point in this case.

49.	In my judgment the Tribunal Chairman should have focused on the questions which I have set out above.  Does Mrs. Verdin intend to abandon the withdrawn claim, or to bring it elsewhere?  If she intends to bring the withdrawn claim elsewhere, will that be an abuse of the process?  If the Tribunal Chairman had applied such a test, she would have concluded, since she correctly regarded the case as on a par with Sajid, that it was not an abuse to bring the claim elsewhere.

Conclusions

50.	For these reasons the appeal will be allowed.  It will be sufficient to declare that Mrs. Verdin was entitled to withdraw her claim and has permission to amend the Details of Complaint to withdraw the claim.  If, which is unclear, any order dismissing the breach of contract claim has actually been issued, it will be set aside.

51.	In the circumstances the appeal by Harrods for costs cannot succeed.  Any costs of the withdrawal itself were negligible.  Any subsequent costs are due to the stance of Harrods in requiring the breach of contract claim to be dismissed – a stance which was in my judgment not justified.

52.	I should add one post-script to this judgment.  There is a curious feature within Rule 25(4) of the 2004 Rules.  It is provided that if the proceedings are dismissed, “those proceedings cannot be continued by the claimant” (in the absence of a successful review or appeal).  At first sight it is not clear whether these words add anything to Rule 25(3), which has already provided that withdrawal itself brings proceedings to an end.  Since, however, I have concluded that the proceedings in relation to the breach of contract claim ought not to be dismissed, it is unnecessary for me to venture an opinion on this question, and it is better left for a case in which it arises directly.