Appeal No. UKEAT/0337/12/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 8 January 2013
                                                                                Judgment handed down on 6 September 2013

Before
HIS HONOUR JEFFREY BURKE QC
(SITTING ALONE)

MS C AGBENOWOSSI-KOFFI	APPELLANT

DONVAND LTD T/A GULLIVERS TRAVEL ASSOCIATES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROBERT AMEY
(Representative)
Free Representation Unit	
For the Respondent	MR JACK MITCHELL
(of Counsel)
Instructed by:
MPM Legal LLP
Davidson House
Forbury Square
Reading
RG1 3EU

SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Estoppel or abuse of process

The Claimant issued her form ET1 in which she relied on an act of racial discrimination.  The primary time limit had expired.  At a Pre Hearing Review she sought to add two further acts by amendment; the Employment Tribunal refused leave to amend and held that it was not just and equitable to extend time in respect of the original complaint.  An appeal did not succeed.

The Claimant then issued her second ET1 in which she put forward all three acts of discrimination again.  The ET held that the claim in respect of the first act was barred by issue estoppel and that, because the claim in respect of the subsequent acts had only been put forward in an attempt to serve the claim in respect of the first act by enabling the Claimant to argue a continuing act of discrimination, the putting forward of the subsequent acts was an abuse of process.

Held:	
(1)	The decision that there was no jurisdiction to hear the claim in respect of the first act was binding between the parties; an issue necessary to the presentation of that claim had been finally determined.  The absence of any consideration of the claim’s merits did not affect the position.  The ET had correctly applied the principle of res judicata/issue estoppel.  Foster v Bon Groundwork [2012] CA applied.

(2)	The principles of abuse of process considered and reviewed, following Johnson v Gore-Wood [2002] HL and subsequent decisions, including Fox v Bassetlaw [2013] EAT.  The ET had correctly applied these principles and reached a decision which was not perverse.

Appeal dismissed.

HIS HONOUR JEFFREY BURKE QC
Introduction
1.	This appeal raises interesting points as to the doctrines of cause of action and issue estoppel, and what is known as the rule in Henderson v Henderson (1843) 3 Hare 100.  It is an appeal by the Claimant below against a judgment of Employment Judge Grewal, sitting at London Central, sent with reasons to the parties on 23 February 2012.  By that judgment the Employment Judge decided that the Claimant’s complaint of racial harassment, set out in the first 15 paragraphs of her ET1 in respect of an act which occurred in November 2009, should be dismissed, by reason of the application of the doctrine of cause of action of estoppel, and that two further complaints of discrimination which arose in 2011 should be struck out as an abuse of process under the rule in Henderson v Henderson.  The Claimant appeals against both aspects of that judgment.

The history
2.	In order to explain how this position came about, some narrative is necessary.  The Claimant was employed by the Respondent as a client services executive in the travel industry.  She is of black African origin.  The present claim is the second of two claims which she has brought against the Respondent.  The first claim was presented to the Employment Tribunal on 10 June 2011; it complained of a single episode of racial harassment.  The Claimant alleged that in November 2009 her supervisor had audibly described her using words which included the word “monkey”.  The Respondent admitted the incident, for which the supervisor had apologised, but denied that it was racist.

3.	There had been grievance proceedings which were protracted by the Claimant’s illness and did not achieve resolution.  On 10 June 2011 the Claimant, through solicitors, presented her first claim; she put forward the events of November 2009 as the only act of discrimination upon which she then relied.

4.	A Pre‑Hearing Review in that first claim was fixed in order to decide whether that claim was out of time; it was, inevitably, accepted that it had been brought well outside the prima facie statutory time limit of three months from the date of the matters complained of; the Tribunal therefore had to decide whether it was just and equitable to extend time.

5.	The PHR came before Regional Employment Judge Potter on 2 September 2011; her first task was to consider an application made on behalf of the Claimant to amend the claim by adding two further complaints of discrimination, namely (1) that at a meeting on 7 January 2011 the Respondent continued to expect that, when the Claimant returned to work from her continuing ill-health, she should be required to work with the supervisor who had made the original remark, and (2) the Respondent’s failure to implement a recommendations which emerged from the grievance process that there should be cultural awareness training.

6.	Those two complaints related to alleged events prior to the presentation of the first ET1.  If added to that claim, they would have been in time and would have enabled the Claimant to argue that there was a continuing discrimination stretching from November 2009 to within the relevant three‑month period, and thus, potentially at least, to retrieve her initial claim from the dangers which it faced by reason of the time that had passed between the original complaint and the presentation of the first ET1 some 18 months and more later.

7.	The judge rejected the amendment application.  It is not in dispute that, in doing so, she said that the new complaints could be the subject of a new claim which would not be out of time; but she also warned that there might be arguments that the rule in Henderson v Henderson applied.  Having so decided, she then proceeded to consider the time issues in relation to the original complaint and decided that it was not appropriate to exercise the just and equitable discretion in the Claimant’s favour.  Therefore, the claim was out of time and could not proceed.

8.	To depart from the chronology for a moment, the Claimant appealed against that decision; her appeal was rejected at the sift stage of the Employment Appeal Tribunal’s procedures and was rejected again at an oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules.  There was no further appeal.

9.	Meanwhile, without delay the Claimant issued a second ET1, on 6 September 2011.  It repeated the first 15 paragraphs of the original ET1 and put forward the two further claims which Regional Employment Judge Potter had declined to add by way of amendment to the first claim.  It referred to authority on what might amount to “a continuing act of discrimination” and asserted that there had been continuing discrimination in the Claimant’s case on the basis of the two further allegations together with the original complaint and added a third new allegation that the Respondent continued to dismiss the original November 2009 incident as “banter”.

10.	Before me the arguments proceeded on the basis that the second ET1 repeated the original November 2009 complaint and the two subsequent complaints which were sought to be introduced into the first claim by amendment; no reference was made to what might be thought to be a third additional complaint; but it does not seem to me that the more elaborate description of the Claimant’s case in the second ET1 affects the issues with which I have to deal.

11.	When the second claim was presented the Respondent, perhaps unsurprisingly, took the point that the attempt to revive the complaint relating to the November 2009 incident was barred by res judicata or cause of action estoppel and that the Claimant was barred from advancing the two subsequent acts of alleged discrimination because they could and should have been put forward in the first claim and fell within the rule in Henderson v Henderson.

12.	It was these points that Employment Judge Grewal was asked to decide and did decide, in the Respondent’s favour, in February 2012; and it is from the decisions which she then reached that this appeal is brought.

13.	There is one further aspect of the history to which I should refer for the sake of completeness.  It is that, while this appeal has been pending, the Claimant has issued County Court proceedings against the Respondent claiming damages for personal injuries caused by stress at work, workplace harassment and bullying sustained in November 2009 as a result of the Respondent’s negligence.  It does not appear to me that the existence of this further claim affects the issues which arise on this appeal in any way; as Mr Amey, counsel for the Claimant, says in his skeleton argument, any risk of inconsistent judgments should be avoided by appropriate case management. Nothing in this judgment should affect that claim.

14.	I am grateful to Mr Amey, and Mr Mitchell, on behalf of the Respondent, for their helpful written and oral arguments.

Estoppel
15.	Mr Amey’s submissions on the first issue in this appeal, relating to the original claim put forward in the first ET1, can be summarised, I hope fairly, as follows:
(1)	A decision by an Employment Tribunal that a claim under the Race Relations Act 1996 (which applied at the material time) is out of time has the effect that the Employment Tribunal has no jurisdiction to hear the claim; and it must be dismissed for that reason.

(2)	Such a decision cannot support a plea of res judicata or cause of action estoppel or of issue estoppel on any issue which is not a necessary ingredient to that decision.

(3)	The decision of Regional Employment Judge Potter did not contain or involve as a necessary ingredient any consideration of the merits of the claim or whether there was a continuing act of discrimination; the decision involved as a necessary ingredient only the issue of whether it was just and equitable to extend time.

(4)	But that issue did not arise in the second claim, because the original harassment was part of a continuing act of discrimination – or, in terms of section 68(7)(b) of the 1976 Act – an act extending over a period which ended less than three months before the commencement of the second proceedings.  The Employment Tribunal was, therefore, not barred from considering the claim on its merits.

16.	Mr Mitchell’s submissions, similarly summarised, were:
(1)	Paragraphs 1‑15 of the second ET1 repeated precisely the original claim.  That claim had been dismissed on the basis that the Employment Tribunal did not have jurisdiction to hear it.

(2)	The Regional Employment Judge’s decision to that effect created a cause of action estoppel which barred Employment Judge Grewal from considering the original complaint in the second set of proceedings.
(3)	The fact that Regional Employment Judge Potter had not considered the merits of the claim did not enable the Employment Tribunal to take jurisdiction to consider the same claim as repeated in the second proceedings when it had been decided that the Employment Tribunal did not have jurisdiction to hear it.

(4)	Accordingly, Employment Judge Grewal’s decision as to that claim was correct in law.

17.	Both counsel took me extensively to authority; I will refer to their arguments, in so far as it is necessary to do so, as I address those authorities cited to me to which I need to refer for the purposes of my conclusion (which is that, on this issue, the appeal fails).  It is not necessary or indeed helpful for me to embark on a lengthy juridical exegesis of the principles of res judicata, cause of action estoppel and issue estoppel; for the purpose of what I have to decide in this appeal, there appears to be no difference between res judicata and cause of action estoppel.  The nature of both forms of estoppel was set out by Diplock LJ in Thoday v Thoday [1964] P 181 at pages 197‑198 in these terms:

“[…] that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties.  If a cause of action was determined to exist, i.e., judgment was given upon it, it is said to be merged in the judgment […].  If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does […].”

18.	In that passage, Diplock LJ went on to set out the nature of issue estoppel as follows:

“[…] an extension of the same rule of public policy.  There are many causes of action which can only be established by proving that two or more different conditions are fulfilled.  Such causes of action involve as many separate issues between parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more causes of action.  If in litigation upon one such cause of action any of such separate issues as to whether a similar condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

19.	Those passages were adopted by Mummery J in the Employment Appeal Tribunal in Staffordshire County Council v Barber [1996] ICR 379 at 386‑387; and the first paragraph, relating to cause of action estoppel, was adopted in the Court of Appeal in that case, upholding the EAT’s decision, by Neill LJ, with whom Auld LJ and Sir Ian Glidewell agreed, at pages 396-397.

20.	While at first blush it might seem that the present situation falls directly within the principles of cause of action estoppel as there set out, Mr Amey argues that it does not do so, basing himself on the arguments which I have earlier summarised.

21.	The first three of those arguments are, in my judgment, uncontroversial.  That a decision in the Employment Tribunal such as that reached by Regional Employment Judge Potter, that the primary time limit had elapsed before presentation of a claim and it was not just and equitable to extend time, results in the dismissal of the claim for want of jurisdiction is common ground.  In support of his proposition that a decision by a Tribunal that it has no jurisdiction does not support a plea of res judicata or cause of action estoppel on any other issue, in particular the merits of the claim which has been rejected for want of jurisdiction, Mr Amey took me to Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300, in which the Privy Council adopted what Roche J had said in Pinnock Bros v Lewis and Peat Ltd [1923] 1 KB 690 in these terms:

“The mere presence of an arbitration clause is no defence to an action on the contract.  An award following on the arbitration clause may be an answer to a claim, and it will be an answer where it deals with the claim.  Ayscough [v Sheed, Thomson & Co Ltd [1923] 39 TLR 206]’s case is an authority for that.  But where, as in this case, the award does not deal with the claim but merely with the jurisdiction of the arbitrator, it is no answer.”

22.	It should be pointed out that, in Tak Ming, the position was not similar to the present case; a judge in the Hong Kong courts declined to grant interest on a sum found by a brother judge to be payable to the claimants by the defendant because he felt that he had no jurisdiction to do so.  The application for interest should have been made to the original judge; but that did not prevent the original judge from correcting his original judgment by adding a provision for interest under the slip rule.  The second judge’s conclusion that he did not have jurisdiction did not determine the merits of the claim for interest; it also did not determine that the courts had no jurisdiction to award interest.  Nevertheless, Mr Amey’s broad proposition is supported by passages in Spencer, Bower & Handley: Res Judicata, fourth edition, at paragraph 2.15; Phipson on Evidence, at paragraph 43.06; and Halsbury’s Laws, volume 12, paragraph 1175.  I have no hesitation in accepting it.

23.	Mr Amey took me next back to Barber (see above), a decision well known to those versed in employment law.  Mrs Barber was dismissed by her employers from two part‑time teaching posts.  She claimed a redundancy payment, but, on the law as it then stood, she did not in respect of either post have sufficient qualifying hours; and she withdrew her claim on the day of the Tribunal’s hearing; the Tribunal decided that the claim should be dismissed on withdrawal.  Because it was believed that the decision of the House of Lords in R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] ICR 317 had changed the law, Mrs Barber then presented a new claim to the Tribunal seeking a redundancy payment and also compensation for unfair dismissal.  The Court of Appeal upheld the EAT’s reversal of the Tribunal’s conclusion that there was no cause of action estoppel, holding that the first Tribunal had reached a judicial decision which created a cause of action estoppel.  There had, of course, been no decision on the merits of Mrs Barber’s claim.  Mr Amey submitted that, whereas in Barber cause of action estoppel arose from the judicial decision reached by the first Tribunal, no such estoppel arose from the refusal of the second judge in Tak Ming to decline jurisdiction and that the present case fell into the latter and not the former category.

24.	Mr Mitchell, in contrast, submitted that the decision in Barber demonstrated how little was needed to create cause of action estoppel and that Regional Employment Judge Potter had reached a decision that there was no jurisdiction after a much more substantial judicial process than that which took place in Barber.  It was, he submitted, a necessary ingredient of the claim which the Claimant sought to resuscitate in the second proceedings that the Employment Tribunal should have jurisdiction to hear it; but the effect of the earlier decision was that that essential ingredient was missing; it had been finally decided that there was no such jurisdiction, and, without any consideration of other ingredients such as the merits, the claim had to fail.

25.	At the time of the arguments before me, the most recent decision in the relevant area was Foster v Bon Groundwork [2012] ICR 1027, in which the EAT (Silber J) reversed the Employment Tribunal’s decision; and the Court of Appeal upheld Silber J’s decision.  The claimant claimed a redundancy payment after being laid off but not dismissed.  He was subsequently dismissed.  The Employment Tribunal decided that his claim failed, apparently treating the claim as a dismissal‑based claim, which it was not.  The Tribunal found that the reason for dismissal was not redundancy.  The claimant then put forward a second set of proceedings in which he made a claim for redundancy payment and compensation for unfair dismissal, this time based on his dismissal.  A different Employment Judge held that the redundancy payment claim was barred by res judicata by reason of the first judgment; he went on to deal with the unfair‑dismissal claim on the basis of the Henderson v Henderson principle, to which I will come in due course.  On appeal it was held that the doctrine of res judicata or cause of action estoppel did not apply, because the issue whether the dismissal, as opposed to the lay‑off, was by reason of redundancy had not been before the first Employment Tribunal.

26.	That decision, on its own unusual history, only bears directly on the arguments in the present case, in my judgment, by reinforcing the general principles to which I have referred.  Indeed, those principles were summarised in, if I may say so with respect, a succinct and helpful way by Elias LJ in the Court of Appeal, with whom Arden LJ and Pill LJ agreed, at paragraphs 4 and 5 in these terms:

“4. Since the relevant legal principles are not in dispute I will set them out briefly.  The principle of res judicata can be summarised as follows: where an issue has been litigated before a judicial body and determined as between the parties it cannot be reopened.  It is binding as between them, and the parties are estopped from reopening it.  The issue may be one of fact or of law.  However, the parties are only bound by an issue which it was necessary for the court to determine in the earlier claim.  In Arnold v National Westminster Bank plc [1991] 2 AC 93, 105 Lord Keith of Kinkel observed that the principle applies where
‘a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue’.
5. It follows, therefore, that a finding of fact by an earlier court which is not a ‘necessary ingredient’ in the earlier cause of action will not give rise to a ‘fact estoppel’.  Moreover, a finding cannot be a necessary ingredient of a cause of action if the earlier court or tribunal did not have jurisdiction to decide the matter at all: see the observations of Sir Nicolas Browne-Wilkinson in O’Laoire v Jackel International Ltd (No. 2) [1991] ICR 718, 729 when he said: ‘It is well established that there can be no estoppel arising out of an order or judgement given in excess of jurisdiction’.”

27.	In the present case, an issue necessary to the successful prosecution of the Claimant’s original claim was validly determined by the Employment Tribunal.

28.	The core of the question which I have to decide lies in the application of these general principles to the present case; none of the decided cases provides an automatic answer; but I have come to a clear conclusion.  In my judgment, Employment Judge Grewal was correct in her view that the claim in respect of the original alleged discrimination is barred by cause of action estoppel.  Regional Employment Judge Potter made a valid judicial decision that the Employment Tribunal did not have jurisdiction to hear that claim.  That decision is binding upon the parties in the second claim.  I do not see any usefulness in comparing the quantum of material upon which the first decision was made with that which formed the basis of the decision of the Tribunal in Barber.  It was a substantive decision, made after consideration of the material evidence, that an essential element of the claim, necessary to give the Employment Tribunal jurisdiction, was not present.  To adopt the words of Elias LJ, that decision is binding, and the parties are estopped from reopening it.  The first decision was not even arguably one which it was not open to the Regional Employment Judge to make, as was the case in Foster.

29.	The fact that the other elements necessary for the Claimant to succeed – that there had been the incident complained of and that it fell within section 3A of the 1976 Act as amended, (described by Mr Amey as “the merits”) – does not, in my judgment, have the effect that the principle of cause of action estoppel does not apply, for the reasons I have set out.  Further, I do not accept that that principle can be circumnavigated by the repetition of the same claim in subsequent proceedings coupled with the argument that, had the claim been originally presented on the basis that the relevant incident was part of a continuing act, it would or might not have been found to be out of time; that claim, as originally presented, was not put forward in that way (save by the failed attempt to amend).

30.	For these reasons, the original claim, having been dismissed by the first Employment Tribunal and the attempts to appeal that dismissal having failed, bars the Claimant from reintroducing that claim in subsequent proceedings; Employment Judge Grewal reached the right decision for the right reasons.

Abuse of process
31.	What has traditionally been called “the rule in Henderson v Henderson” has in modern times been reformulated by the House of Lords in Johnson v Gore Wood [2002] 2 AC 1, in which at pages 30H‑31E Lord Bingham, with whom, on the abuse of process issue, Lord Goff, Lord Cooke and Lord Hutton agreed, said:

“It may very well be, as has been convincingly argued (Watt, ‘The Danger and Deceit of the Rule in Henderson v Henderson: A new approach to successive civil actions arising from the same factual matter’ [2000] 19 CLJ 287), that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V‑C made, which was addressed to res judicata.  But 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.  This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.  The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.  I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.  It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.  That is to adopt too dogmatic an approach to what should in my opinion 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, focusing attention on the crucial question 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 should have been raised before.  As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard rule to determine whether, on given facts, abuse is to be found or not.  Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim.  While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.  Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

32.	And Lord Millett said, at pages 59D‑60A:

“However this may be, the difference to which I have drawn attention is of critical importance. It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon.  This latter (though not the former) is prima facie a denial of a citizen’s right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953).  While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.  In Brisbane City Council v Attorney General for Queensland [1979] AC 411, 425 Lord Wilberforce, giving the advice of the Judicial Committee of the Privy Council explained that the true basis of the rule in Henderson v Henderson 3 Hare 100 is abuse of process and observed that it ‘ought only to be applied when the facts are such as to amount to abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation’.  There is, therefore, only one question to be considered in the present case: whether it was oppressive or otherwise an abuse of the process of the court for Mr Johnson to bring his own proceedings against the firm when he could have brought them as part of or at the same time as the company’s action.  This question must be determined as at the time when Mr Johnson brought the present proceedings and in the light of everything that had then happened.  There is, of course, no doubt that Mr Johnson could have brought this action as part of or at the same time as the company’s action.   But it does not at all follow that he should have done so or that his failure to do so renders the present action oppressive to the firm or an abuse of the process of the court.  As May LJ observed in Manson v Vooght [1999] BPIR 376, 387, it may in a particular case be sensible to advance claims separately.  In so far as the so‑called rule in Henderson v Henderson suggests that there is a presumption against the bringing of successive actions, I consider that it is a distortion of the true position.  The burden should always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action.”

33.	From those passages and following decisions these propositions are to be derived:
(1)	The fact that a claim could have been brought as part of earlier proceedings against the same defendant does not lead to the conclusion that it should have been so brought and that it should be stayed as an abuse of process; but it can be so stayed.  There will rarely be a finding of abuse unless the later proceedings involve unjust harassment.

(2)	It is for a party who asserts that a second claim should be so stayed to establish that a stay should be granted.

(3)	An appellate court should not lightly interfere with an Employment Tribunal’s decision on the application of these principles; see Foster per Elias LJ at paragraph 39.

(4)	But the Tribunal’s decision on an issue of abuse of process is not a matter of discretion; there is a right and wrong answer; see Aldi Stores v WSP [2008] 1 WLR 748, per Longmore LJ, with whom Wall LJ agreed, at paragraph 38.

34.	Mr Amey submitted that, although the abusive conduct identified by the Employment Judge at paragraph 19 of her decision, namely that the Claimant did not raise the subsequent complaints in her first claim because she did not believe that they constituted acts of discrimination and only raised them in the second claim in order to attempt to resuscitate the original claim, fell squarely within the ambit of abusive behaviour, it was not open to the Employment Judge to make those findings, for two reasons.  The first was that the Respondent had not pleaded harassment or oppression and adduced no evidence of it.  The second was that the findings were perverse.

35.	On the first point Mr Amey submits that the Respondent’s skeleton argument before the Employment Judge asserted only that the complaints which were sought to be introduced into the first claim by amendment were known to the Claimant before the presentation of the first complaint and should therefore have been included in it.  Secondly, he submits that the finding that the Claimant did not believe the new complaints was a finding of dishonesty, which was not raised at the PHR on behalf of the Respondent or by the Judge.  Thirdly, he submits that the Judge decided on a basis which was not open to her, therefore, and which constituted a breach of natural justice.

36.	In support of his second point Mr Amey submitted that the Employment Judge’s finding of dishonesty, on the basis that the new application was made as an attempt to resurrect the original claim, was inconsistent with the fact that the Claimant had sought to amend her first claim to include the new complaints, which could not be said, therefore, to be recent fabrication.  He accepted that, if the original claim had succeeded, the Claimant would probably not have put forward the new complaints; but that had not been the sequence of events.  Further, the fact that the first claim was drafted by solicitors, originally made no mention of the new complaints and that the first claim was known to be out of time did not support a conclusion that the new complaints were made for the reasons identified by the Judge.

37.	Mr Mitchell submitted that Employment Judge Grewal had, at paragraphs 10 and 17 of her judgment, correctly directed herself that it was necessary to identify an additional element of misuse or abuse of the process of the court beyond the fact that the complaints being considered could have been raised in the original proceedings and that the onus was on the person alleging abuse.  He referred to Camerata Property v Credit Suisse Securities (Europe) [2012] 1 CLC 234, in which Flaux J, in the Commercial Court, referred to the judgment of Clarke LJ in Dexter v Vlieland‑Boddy [2003] EWCA Civ 14, which was in these terms:

“(i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
(ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
(iii) The burden of establishing abuse of process is on B not C or as the case may be.
(iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
(v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process.
(vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.”

38.	The Employment Judge in this case had, he submitted, correctly followed those guidelines.

39.	He further submitted that the Employment Judge had not made any finding of dishonesty nor had she taken into consideration any fact which she was not entitled to take into account.  He had orally made the points against the Claimant which the Employment Judge accepted; his skeleton argument did not go into detail; and in any event the Claimant at no time put forward any explanation of the sequence of events inconsistent with the Employment Judge’s findings, which she was entitled to reach.

40.	I accept Mr Mitchell’s submission that the Employment Judge properly directed herself upon the law and that, having done so, she was entitled to and indeed had to apply a broad merits‑based approach in considering whether there had been an abuse of process.  While it is correct that the detailed findings which underlie the Judge’s decision are not expressly referred to in the Respondent’s skeleton argument before her, that document did not need to be more than that which it purported to be, a skeleton argument; and Mr Amey did not in reply take issue with Mr Mitchell’s assertion that he had made the relevant factual points orally.

41.	If there was a risk of a finding of dishonesty which had not been sought by the Respondent, one would have expected the Employment Judge to have given the Claimant an opportunity to deal with it; but I do not regard what the Judge concluded on the facts as amounting to a finding of dishonesty.  It is not necessarily dishonest for a litigant to advance for tactical reasons a complaint which he or she does not believe will succeed or does not believe constituted the legal wrong pleaded on his or her behalf.  In civil proceedings of all kinds, on advice or without it, a party may well put forward an argument in which he has no great confidence.  Of course, if a party making an allegation of fact knows that that allegation is untrue, there is dishonesty; but that is not what the Judge found.  There may be costs consequences if a party advances an argument or case which he regards as unlikely to succeed, even in the context of the Employment Tribunal; but it is not dishonest to do so.  What the Judge found was that the first ET1 was drafted, by solicitors, in terms which acknowledged that the claim was well out of time, that if the Claimant genuinely believed that she had good claims that there had been the two subsequent acts of discrimination which would have enabled her to avoid the consequences of the lateness of the presentation of the first claim, those two acts would have been relied upon from the start, that the two acts were only put forward as a tactical measure to seek to save the original complaint and that they were being pursued in the second ET1 in order to seek to resurrect the first claim, which had already been dismissed.  Those conclusions do not embody a finding of dishonesty, in my judgment.

42.	Nor, in my judgment, do they involve any perversity or other error of law or material error of fact.  Even if Mr Mitchell had not put his case expressly along those lines, the Employment Judge’s construction of events was one which could hardly have taken the Claimant or Mr Amey by surprise; it was as a matter of common sense a construction of events which was manifestly, at the very least, a real possibility.  While it may be correct, as Mr Amey submits, that the facts that the first claim was drafted by solicitors, originally made no mention of the new complaints and that the first claim was way out of time and was likely to fail unless revived did not, to use his expression, “mean”, i.e. necessarily lead to the conclusion, that there was an abuse, it was, in my judgment, plainly open to Employment Judge Grewal to reach the conclusions that she reached.

Conclusion
43.	Accordingly, for the reasons I have set out, the Employment Judge did not err in law in her conclusion that, in the second set of proceedings before her, the original claim was barred by cause of action estoppel or in her conclusion that the further claims constituted an abuse of process.  The appeals are, therefore, dismissed.

44.	After the submissions in this case had been completed and I had reserved my judgment, the Respondent’s/representatives drew my attention to the EAT’s judgment in Fox v Bassetlaw District Council (EAT/0274/12 HHJ Peter Clark, judgment handed down 16 January 2013) (now reported at [2013] Eql R 219).  I invited and received written submissions from both counsel upon that judgment.  That process has, I regret, delayed this judgment.

45.	In Fox, four female employees of the respondent council issued an equal pay claim in respect of their emergency call-out rates as compared with male employees; they then withdrew those claims; the respondent’s applied to have the claims dismissed as withdrawn.  While that application was pending, the claimants issued a second claim which also involved call-out rates and also stand-by allowance points, and included the same comparators; the respondent’s asserted that the second claim was an abuse of process.  The Employment Judge directed himself in accordance with Lord Bingham’s speech in Johnson v Gore Wood (see para. 31 above) and concluded that the claimants, represented by a trade union and solicitors, could and should have brought the second claim as part of the first and chose to withdraw and re-issue in preference to seeking to amend (although he thought that an amendment application would have failed).  He therefore dismissed the first claim and held that the second was an abuse of process.

46.	On appeal it was held that the Employment Judge had correctly applied the law and that his decision was not perverse; on the facts he was plainly entitled to conclude as he did.

47.	I have considered counsels’ submissions; but, having done so, I am not persuaded that this further decision takes either party further than the four propositions which I have set out above at para. 33, save that, in practice, a party who brings a second claim which could and should have been included with his first claim and has been properly represented throughout is likely to find it very difficult to overturn on appeal a finding by the ET of abuse of process.  The EAT’s decision in Fox has not caused me to depart from the conclusions set out above.  The Claimant in this case was represented by solicitors when both the first and second ET1 were presented.