Andras Szucs v Greensquare Areaccord Ltd

The employment tribunal erred in striking out the Appellant’s

claims as a Henderson v Henderson abuse (as confirmed in the

decision on the reconsideration application), having regard to

some or all of the following:

At the time when the matters complained of occurred, the full

merits hearing in the first claim was about two months away;

Accordingly, any application to amend the first claim to

introduce those claims would have to have been made well

before the time limit for advancing those claims as new claims

expired, thereby cutting in to the time that Parliament had

allowed for such claims to be advanced;

The tribunal (although in the reconsideration decision it

accepted to a degree the claimant’s point that it had mis-stated

in the original decision the factual overlap in terms of which

managers were involved) took insufficient account of the

contention that there would have been insufficient time to

accommodate the new claims into the first claim without

disturbing and extending the listing of the hearing of the first

claim;

These were fact-sensitive discrimination claims and the effect

of a Henderson v Henderson strike-out is to deprive a claimant

of the opportunity to have adjudicated on their merits, claims

that have not so far been adjudicated at all.

The Employment Judge has reviewed the file and the Claimant’s application for a

postponement, set out in his emails of 15 and 18 July. He notes that;

- The file is disproportionately large, mainly as a result of the Tribunal having to

become involved in several breaches of its orders by him;

- The Claimant is in breach of another unless order in respect of his witness

statement and is currently prevented from relying on one at the final hearing without

a judge’s permission.

- He has claimed that he suffers both physical and mental difficulties which are

hampering his engagement with the litigation, but the Judge notes that no

contemporaneous medical evidence is available which supports his assertions and

that he seems to be able to write lengthy, detailed, and persuasive correspondence.

His inability to provide a witness statement is, therefore, not understood.

- He asserts that the difficulties that he faces are primarily related to referencing

documents within his statement, but he significantly contributed to the delay in the

bundle’s provision (as a result of his failure to agree its contents) and he has now

had the bundle for a sufficient period to be able to write his statement.

The hearing is not postponed. It is in everyone’s interest for this case to be concluded. The Tribunal’s resources are being disproportionately drained by this case. It now needs to be heard.

The case remains listed for hearing on 25th July 2022.

In November 2019, the claimant unsuccessfully applied for an internal post of Neighbourhood Project Manager. The reasons in the First Claim record the significant concerns that were held by the respondent in relation to the claimant’s performance in his role (see paragraphs 6.25 and 6.40). The dismissal letter detailed that the claimant had been dismissed because of issues relating to his attitude, performance, and attendance.

Appellant falls down the stairs, taken to A&E, requiring further treatment, put on painkillers. Further surgery and medical appointments on 16 June, 22 June, 8 July, 15 July, 21 July, with further complaints of poor concentration, poor sleep and unable to complete documents. Referred to Mental Health Team, counselling and a wellbeing coordinator.

[1] The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings.

[2] Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336.

[3] Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given on it, and the claimant's sole right as being a right on the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494 , 504 (Parke B).

[4] Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 State Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P

181, 197–198.

[5] Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones.

Henderson v Henderson 1843 3 Hare 100 established the rule that parties to

litigation must bring forward their whole case. They will not be permitted to bring

fresh proceedings about a matter which could and should have been litigated

in earlier proceedings, but was omitted through negligence, inadvertence or

even accident.

The plea of res judicata applies, except in special cases, not only to points

which the court was actually required to decide, but to every point which

properly belonged to the subject of litigation and which the parties, exercising

reasonable diligence, might have brought forward at the time.

The relevant principles were reviewed and restated by the House of Lords in

Johnson v Gore Wood 2002 2 AC 1, HL, where Lord Bingham said (at

paragraph 31) that the court or tribunal must consider:

whether in all the circumstances the bringing of proceedings is an abuse

of process; and

that the circumstances will include whether the proceedings are brought

against the same defendant or respondent; whether the issue could, with

reasonable diligence, have been discovered and raised in the previous

proceedings; and whether the later action involves unjust harassment or

oppression of the party sued.

Applying Henderson v Henderson, the House of Lords said in Johnson v

Gore Wood, p. 30:

“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.”

The ‘crucial question’ is whether the claimant is, in all the circumstances,

‘misusing or abusing the process of the court by seeking to raise before it [an]

issue which could have been raised before’, see Johnson v Gore Wood at p.

31D; i.e., such conduct will ordinarily in itself amount to an abuse.

In determining whether a second claim is a misuse or abusive, the Tribunal

must examine the claimant’s reason for not bringing the claim earlier, see

James v Public Health Wales NHS Trust (EAT/0170/14), per Langstaff P at

[25-26].

The burden of proving an abuse of process is on the employer: Agbenowossi-

Koffi v Donvand Ltd [2014] ICR D27.

Amendment

The rule in Henderson v Henderson likewise applies where a matter arises

post-issue which could have been, but was not, amended into the existing

claim.

In London Borough of Haringey v O'Brien EAT/0004/16 the EAT held that

the Tribunal should consider not just the events occurring prior to the

presentation of a claim but also those occurring after that date but prior to the

hearing of that claim (per HHJ Eady at judgment paragraph 60). The EAT said

that if the Employment Tribunal was entitled to find that it was a Henderson

abuse of process to pursues complaints in a second set of proceedings

regarding matters occurring prior to the presentation of the first claim, the same

reasoning would apply to events occurring thereafter and prior to the full merits

hearing, or at least sufficiently prior to it to have allowed for an amendment to

the claim.

There is no dispute in this case that the claimant could have applied to amend

the First claim to include the allegations that formed the subject of the Second

Claim (in the sense that there was time to do so, he knew how to do so, and he

was physically capable of doing so). The claimant’s argument is whether he

should have; in a sense which is closer to whether it was physically feasible for

him to do so and the interests of justice for him to have taken that step.

The following matters, which are relevant to that issue, do not appear to be in

dispute:

First, the claimant knew of the events about which he wished to

complain; this was not a case where any diligence was required to establish

the facts which found the claims;

Secondly, the claimant knew of appropriate method to amend his

claim (by application to the Tribunal);

Thirdly, the claimant knew the legal claim which he wished to pursue

in respect of the factual events, which he needed to have applied to amend

to include, as he drafted the claim form in the Second Claim himself.

… When I pressed Mr Downey as to whether he had specific instructions from the claimant

in support of that argument, given that the claimant looked startled and highly worried by the fact that it was being advance, he eventually conceded that he did not. I was surprised, therefore, that he had considered it appropriate to raise such an argument and then to advise me that it was instructions, given that Mr Downey is a very experienced member of the bar and knows the Bar Code of Conduct well;

The fact that an application may not succeed does not provide good grounds

not to make the application at all; it could have been made. Had the application

been made and refused, the claimant would have been on stronger grounds in

relation to this application.

Moreover, I observe as an aside, that the claimant’s argument is speculative

and weak at best in terms of the potential outcome: in circumstances where

there were real concerns as to whether the First Claim would be ready for the

final hearing because of the issues with the bundle and the claimant’s failure to

produce a witness statement and, in the context of the overriding objective,

allowing for the fact that there was considerable overlap in the witnesses who

would be called to address the allegations in the First and Second claims, there

were good grounds for allowing the amendment and vacating and relisting the

hearing. That may well have been a persuasive factor in support of the

application itself. Even if it were not, the need for finality in litigation by

addressing matters in a single hearing, rather than allowing separate claims

requiring additional time, use of resource, and cost, may well have the effect

that the application would have been granted, albeit with reservations about the

claimant’s previous failures to comply with case management orders.

Secondly, there was simply no evidence before me to demonstrate either that

any of the conditions the claimant relies upon as disabilities were affecting him

materially at the relevant time, or that those conditions had the effect that the

claimant argued for, i.e. that he only had sufficient energy to focus on one claim.

There was no witness statement from the claimant describing why he had

chosen to take the approach that he had, and no medical evidence, whether in

the form of GP notes or a letter from any treating clinician addressing his

conditions and their effect at the material time. Consequently, I reject the

argument that the claimant’s conditions prevented him from making an

application to amend.

Finally, looking at matters in the round, it seems to me there is force in the

respondent’s argument that there is a real danger in this case of matters that

were found as facts by the Tribunal and were therefore determined in the First

Claim, being reopened and/or reconsidered by a differently constituted Tribunal

in relation to the Second Claim. In particular, the suggestion that the claimant’s

poor performance in his role during his employment was attributable to matters

arising from the alleged disabilities and/or that the respondent’s employees

knew or ought reasonably to have known that (which was an argument the

claimant sought to deploy so as to challenge the respondent’s case as to the

principal reason for the rejection of his applications) was not a matter that was

argued in the First Claim, but would necessarily require reconsideration of the

evidence that had been given in that claim in relation to the period prior to the

claimant’s dismissal.

That is precisely the sort of scenario which the res judicata rules were intended

to prevent. It falls squarely into the category of the fourth principle identified in

Virgin Atlantic Airways, it is “an issue which would be common to both

claims,” namely whether the claimant had performed poorly, and the reasons

for it.

Weighing all those matters in the round, I have concluded that the claimant

should have applied to amend the First Claim to include the allegations which

he now seeks to pursue in the Second Claim. He is therefore caught by the

res judicata rule, and all the rule in Henderson v Henderson.

Consequently, I am satisfied that the claimant’s actions in issuing the Second

Claim to pursue allegations which he could and should have included in the

First Claim by amendment amounts to an abuse of the Tribunal’s process and

the claim is struck out.

It is therefore unnecessary to determine whether the claims have little or no

reasonable prospect of success or are out of time.

The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court: Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, 590 per Lord Kilbrandon, giving the advice of the Judicial Committee; Brisbane c City Council v Attorney General for Queensland [1979] AC 411, 425 per D Lord Wilberforce, giving the advice of the Judicial Committee). This does not however mean that the court must hear in full and rule on the merits of any claim or defence which a party to litigation may choose to put forward. For there is, as Lord Diplock said at the outset of his speech in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536, an "inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."

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 could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast 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.

In considering the approach to be taken by this court to the decision of the judge, it was rightly accepted by Aspinwall that the decision to be made is not the exercise of a discretion; WSP were wrong in contending otherwise. It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. None the less an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2003] 1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd (No 2) [2007] HRLR 580, para 35. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that 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 the 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. In this case, I consider that the judge, despite the weight that must be accorded his view given his great experience in this type of litigation and the conspicuous success with which he has managed the TCC, reached a decision which was impermissible by taking into account factors which he should not have done and omitting factors which he should have taken into account.

This is the point of temptation for the appellate court. It may well have a shrewd suspicion, or gut reaction, that it would have reached a different decision, but it must never forget that this may be because it thinks that it would have found or weighed the facts differently…it must be satisfied that there must have been a misdirection on a question of law before it can intervene. Unless the direction on law has been expressed it can only be so satisfied if, in its opinion, no reasonable tribunal, properly directing itself on the relevant questions of law, could have reached the conclusion under appeal … It is only if the weight given to a particular factor shows a self-misdirection in law that an appellate court with a limited jurisdiction can interfere. It is difficult to demonstrate such a misdirection and, to the extent that it is not done, the issue is one of fact.

The claimant argues that he was in no position to submit the Second Claim before the hearing of the First Claim, or to make an application to amend to include the Second Claim in the First Claim because of his state of health at the time. In the light of the medical evidence he has now put before me in respect of that period, I am sympathetic to the claimant’s difficulties in this respect. It is evident that his health conditions make it very difficult for him to manage his life. However, he had the opportunity to make that argument, and to put the evidence in support of it, before the Employment Tribunal. The judge considered it, but explained at [52] of the judgment that the claimant had not put before him the supporting medical evidence. HHJ Auerbach refused permission on this argument (see [33] of HHJ Auerbach’s judgment) and the claimant cannot resurrect that argument now;

The claimant also argues that the judge failed to take into account that he was seeking to conciliate the Second Claim and that the Acas Early Conciliation period had in fact been extended until after the start of the trial of the First Claim. Again, I have considerable sympathy for the claimant in relation to this argument, because it seems to me that the judge may have overlooked the dates of Acas conciliation. However, the difficulty is that the claimant was represented by counsel below and the judge could only decide the case on the basis of the arguments put forward on the claimant’s behalf by his counsel. That was why HHJ Auerbach refused the claimant permission to run this argument on appeal (see [32] of HHJ Auerbach’s judgment at the rule 3(10) hearing) and again the claimant cannot resurrect this argument now;

The claimant further argues that the tribunal was wrong to find that he was aware that he could have applied to the Tribunal to amend the First Claim to include the Second. He says that he was not aware he could do this. Yet again, I have sympathy for the claimant on this issue. It would in my judgment have furthered the overriding objective for the Tribunal to hear evidence from the claimant as to the reasons why he did not apply to amend the First Claim, rather than determining the application on the basis of submissions by counsel. Had the Tribunal done so, it might have formed a different picture of the claimant’s reasons for not applying to amend the First Claim. However, this is not an argument that has been advanced by the claimant, and it is not one of the grounds of appeal. Employment Judge Midgley at the hearing, without dissent from either party (both of whom were represented by counsel), proceeded on the basis of submissions only. In my judgment, it was reasonable for the judge, on the basis of those submissions, to conclude that the claimant must have known he could have applied to amend because he had amended the First Claim previously.