Khan v Heywood & Middleton Primary Care Trust

This appeal from the Employment Appeal Tribunal (EAT) raises a point of practical importance in the field of Employment Law. In a summary attached to his reserved judgment delivered on 20 January 2006 (UKEAT/0581/05/ZT also reported at [2006] IRLR 345) Rimer J, who was sitting alone in the EAT to hear an appeal from a Chairman of the Manchester Employment Tribunal (the Tribunal) succinctly formulated it in the following way:

The decision of the Tribunal Chairman, Mr. J.D. Brain, was promulgated on 31 August 2005. He answered the question in the negative. Rimer J, on appeal from Mr. Brain, answered it in the same way. The appeal to this court, for which the judge gave permission, is thus brought by the claimant before the Tribunal, Dr. Sajid Saeed Khan.

Dr Khan was ably represented before us by Miss Diya Sen Gupta. The respondent to the appeal, the Heywood & Middleton Primary Care Trust (the PCT), was equally ably represented by Mr. B.T. McCluggage. I am extremely grateful to both counsel for their considerable assistance on a difficult point of construction in relation to what, on any view, is a poorly drafted rule.

A second point arose relating to costs which, in the event, does not require a decision from this court. In the exercise of his powers under rule 28(1)(a) to Schedule 1 of the 2004 Regulations, Mr. Brain had ordered Dr Khan to pay the PCT’s costs of his application to set aside the notice which he had given on 8 April 2005 withdrawing his claim against it. Mr. Brain found that Dr Khan had acted unreasonably in so doing, and assessed the costs which had to pay the PCT in the sum of £1294.79, inclusive of VAT.

Dr Khan’s appeal against the costs order made by Mr. Brain was dismissed by Rimer J, who, in this instance, refused permission to appeal. Dr. Khan renewed his application for permission to appeal on the costs issue to this court, and on 10 April 2006, Maurice Kay LJ, on paper, adjourned the application to be heard in conjunction with the substantive appeal.

In the event, however, counsel were agreed that the success or failure of Dr Khan’s application for permission to appeal the costs order depended upon, and would follow the outcome of the substantive appeal. In other words, if the appeal succeeded, Dr Khan could not be said to have behaved unreasonably in seeking to set aside his previous notice of withdrawal. In this event, permission to appeal against the costs order would, necessarily, have to be given; the appeal would be allowed and the order for costs set aside. Alternatively, if the substantive appeal was dismissed, the order for costs would stand. In these circumstances, we decided that further argument on the point was unnecessary.

Before setting out the short facts, I propose to set out rule 25 in Schedule 1 of the 2004 Regulations in full. It reads: -

On 16 December 2004, Dr Khan filed an originating application in Form IT1 in the Tribunal alleging that the PCT had discriminated against him on racial grounds in respect of his unsuccessful application for a position on its professional executive committee. In its notice of appearance, filed on 17 January 2005, the PCT denied discrimination and also asserted that the position for which Dr. Khan had applied was not that of an employee. Its case, accordingly, was that the Tribunal had no jurisdiction to entertain Dr. Khan’s claim.

On 23 February 2005, Dr Khan issued proceedings against the PCT in the Oldham County Court under Part III of the Race Relations Act 1976 (RRA 1976). Since Dr Khan’s case was that the act of discrimination had occurred on 29 September 2004, it would appear that these proceedings were designed to protect Dr. Khan against the six month limitation period for such proceedings contained in RRA 1976, section 68(1)(b). We do not know what (if anything) has happened in the County Court proceedings.

At a case management discussion (CMD) in the Tribunal on 10 March 2005, Dr Khan’s solicitors indicated, based on the PCT’s notice of appearance, that they had some doubts as to the validity of his claim before the Tribunal. The Chairman who conducted the CMD accordingly stayed the proceedings, and ordered that Dr. Khan’s solicitors were to inform the Tribunal no later than 7 April 2005 whether he wished to withdraw the claim, or proceed with it.

Dr Khan did decide to withdraw the claim, and on 6 April 2005, his then solicitors sent a letter to the Tribunal, in the following terms: -

On 11 April 2005, The Tribunal replied in the following terms: -

Dr. Khan then parted company with his solicitors and sought the advice of the Bury Racial Equality Council (BREC). On 21 June 2005, BREC’s Chief Executive wrote to the Tribunal, explaining that BREC had taken over the conduct of the case. The letter made it clear that BREC disagreed with the advice which Dr Khan had received, and asserted that the correct step to take was for the question whether or not the post sought by Dr. Khan created the relationship of employer and employee to be listed in the Tribunal for pre-hearing review. BREC accordingly asked the Tribunal “to exercise it’s case management powers under rule 10 of the Tribunal Rules set aside the withdrawal notice and list this matter for a pre-hearing review” (sic). The PCT responded by making an application for the dismissal of the withdrawn claim, and for an order for costs against Dr Khan. These cross-applications came before Mr. Brain on 5 August 2005, when he heard argument and reserved judgment.

Mr. Brain rejected a submission that the case management powers contained in rule 10 of Schedule 1 of the 2004 Regulations (to which I will return later in this judgment) gave him a general power to set aside Dr. Khan’s notice of withdrawal. Having recorded that there was no authority in relation to rule 25 in the 2004 Regulations, Mr. Brain identified the difficulty at the heart of its construction: -

Mr. Brain’s conclusion, however, was that rule 25 was written in an attempt to address what he described as the procedural lacuna identified in cases such as Ako v Rothschild Asset Management Limited and another [2002] EWCA Civ 236, [2002] ICR 899 (Ako), a decision which I discuss in paragraphs 33 to 39 below. In summary, Mr. Brain drew a distinction between (1) a claim which had been brought in an Employment Tribunal (ET) and had then been withdrawn - which did not preclude a second claim arising out of the same set of facts (rule 25(3)); and (2) a claim which had been withdrawn and then dismissed, to which the doctrine of cause of action estoppel applied, and which could not be revived (rule 25(4)). Since Dr Khan was not seeking to bring a second claim, but to revive the first, Mr. Brain’s conclusion was that the words of rule 25(3) must mean what they say, and that it was not open to the claimant to set aside his withdrawal notice.

Mr. Brain did not, however, accede to the PCT’s application for Dr. Khan’s claim to be dismissed. His reasoning was that the prejudice to the PCT of allowing Dr. Khan to make a fresh claim was outweighed by the prejudice to Dr. Khan of not being permitted to do so. Mr. Brain recognised that Dr. Khan “may face some difficulties” in bringing a second claim, since a second set of proceedings would be “some way out of time”. That question, however, he concluded, was for another ET on another day. He accordingly dismissed both applications.

Rimer J had the advantage of argument from both counsel who appeared in this court. His judgment runs to some 19 pages, and is fully and carefully reasoned. Since the essential question before this court is whether or not the Chairman made an error of law which the judge failed to correct, I propose to set out the arguments advanced by both sides to Rimer J, which he carefully recorded and then analysed.

The judge summarised the argument advanced by Miss Sen Gupta in paragraph 12 of his judgment in the following way: -

The judge then summarised Mr. McCluggage’s argument as follows: -

Having floated and, with disarming modesty, rejected a third construction of his own (which, it is fair to say, neither counsel adopted) the judge came down in favour of Mr. McCluggage’s construction. His reasoning can, I think be summarised in the following way.

The judge firstly addressed and rejected Miss Sen Gupta’s argument that the effect of a notice of withdrawal was merely to put the proceedings to sleep, so that – provided no dismissal order under rule 25(4) was made – they could at any stage (at least in theory) be revived and continued. Before the judge, Miss Sen Gupta appeared to accept that the necessary condition of such revival was an order setting aside the withdrawal notice. Before this court, however, she submitted that, whilst as a matter of practice an application would be made, no order of an ET was, as a matter of law, necessary to revoke a notice of withdrawal. I will address that argument later in this judgment.

The first point the judge made was that rule 25(3) expressly provided that the effect of a notice of withdrawal of the whole claim was to bring the proceedings ‘to an end’. Miss Sen Gupta’s construction, he said, involved the court construing those words as not meaning that at all, but as meaning no more than that the proceedings were merely put to sleep and could be woken up and continued. The judge could see no reason why the court should so construe the words “to an end”.

Secondly, the judge was impressed by the fact that at no point in the rules was there any provision giving an ET jurisdiction to make an order permitting a claimant to reinstate a claim following a notice of withdrawal.

Thirdly, the judge noted that Miss Sen Gupta’s argument was wholly dependent on the inference she drew from the words in the last sentence of rule 25(4) that the dismissed proceedings ‘cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed)’. The judge rejected the argument that it was implicit from those words that, provided no dismissal order was made, the tribunal could entertain an application for the setting aside of the withdrawal notice and the continuation of the proceedings. He gave two reasons for that conclusion; (a) rule 25(4) said no such thing (at any rate in terms) and; (b) the words in question were apparently geared only to the consequences of a dismissal application. They were not, on their face, directed at providing that, whether or not any dismissal application was made, a claimant could ask the tribunal to allow him to continue the proceedings he had deliberately chosen to withdraw and so brought ‘to an end’.

The judge was therefore of the opinion that the words ‘subject to paragraph (4)’ in rule 25(3) could be said to be directed at no more than providing that the ‘end’ to which rule 25 (3) brought the withdrawn proceedings was not so terminal as to preclude the making by the respondent of a dismissal application. If that was right, the focus of rule 25 (4) upon the consequences of dismissal might indeed be “an ill-drafted groping” towards the sense for which the PCT argued. In summary, therefore, the judge was of the view that Miss Sen Gupta’s submission required such a fundamental re-writing of the last sentence of rule 25(4) as to cause him to have serious doubts as to whether it could be correct.

The judge then addressed the arguments advanced by Mr McCluggage. These, he found, also faced problems. Mr. McCluggage had submitted that what the draftsman had in mind was to mirror the discontinuance / dismissal distinction that applied in ordinary civil proceedings, and in particular to show that mere withdrawal would not necessarily prevent the commencement of a second claim, whereas dismissal would. He had argued that those alternative consequences were conveyed explicitly (as to dismissal) and implicitly (as to withdrawal) in the last sentence of rule 25(4).

The judge had a problem with that argument. Firstly, he observed that rule 25 said nothing expressly about the right of a claimant who has withdrawn his claim to start a second one. Secondly, it equally did not say anything expressly to the effect that a claimant whose withdrawn claim had also been dismissed had no right to start a second claim. Mr McCluggage had not suggested that rule 25 purported to deal expressly with the first point, but he had submitted that the last sentence of rule 25(4) dealt with the second point. If he was right about that, and if the true sense of that sentence conveyed no more than that a claimant whose withdrawn claim was dismissed could not start again, that would dispose of Miss Sen Gupta’s argument.

However, the judge had difficulty in reading the words ‘If ... the proceedings are dismissed those proceedings cannot be continued by the claimant ...’ as meaning ‘If ... the proceedings are dismissed the claimant may not commence a second claim against the respondent for the same, or substantially the same, cause of action ...’

The judge pointed out that Mr McCluggage had rightly conceded that by no natural process of interpretation could the draftsman’s language be read as having the meaning for which he contended. He was thus obliged to submit that the rule must be construed purposively. The difficulty was that rule 25 contained no clear pointer to the effect that it was purporting to legislate about the ability, or otherwise, of a withdrawing claimant to start a second claim.

Ultimately, therefore, in the judge’s judgment, the solution came down to the meaning of the last sentence of rule 25(4). If Miss Sen Gupta’s construction of that sentence was correct, that provided an answer to Mr McCluggage’s submission. But if it was not, then the judge could not see what sense could be attached to it other than that for which Mr McCluggage contended. This was because the judge could not believe that the draftsman either regarded it as necessary, or was intending, to impart the “blindingly obvious intelligence” that a dismissed claim could not be continued. If, the judge asked, the draftsman’s real point was to explain the claimant’s rights in the event that the claim was not dismissed, why had he not done so expressly?

The judge expressed his conclusion in paragraphs 24 and 25 of his judgment in the following terms: -

Counsel were agreed that there was no authority directly in point, since this was the first time that rule 25 (which was introduced on 1 October 2004) had been judicially considered in the context of an application by a claimant to revive withdrawn proceedings. In my judgment, however, assistance can be obtained from several of the cases cited to us. Of these, the most helpful, I think, is this court’s decision in Ako.

The facts in Ako were that the claimant issued a Form IT1 in an ET complaining of unfair dismissal and race discrimination. However, she named only one respondent. She then received advice that she should also proceed against a second respondent, and that the appropriate method of doing so was to withdraw her application and to submit a fresh application against both respondents. Following that advice, the claimant wrote to the ET withdrawing her claim. An ET Chairman, sitting alone, thereupon dismissed her claim “on withdrawal by the applicant”. When, less than a week later, the claimant presented a fresh application naming both respondents, the first respondent applied to the ET to strike out the claim on the ground that it had been judicially resolved by the Chairman’s action in dismissing it, and that cause of action estoppel prevented the fresh application from being pursued. The ET acceded to that application. The claimant appealed to the EAT which allowed her appeal. The first respondent then appealed to this court, which upheld the decision of the EAT and dismissed the appeal.

The decision of the ET in Ako is dated 1 October 1999. At that point, the application was governed by rules 13(1) and (2)(a) of Schedule 1 to the Employment Tribunals (Constitution, etc) Regulations 1993 (the 1993 Regulations) which read: -

The Employment Tribunals (Constitution etc) Regulations 2001 (the 2001 Regulations), which were the immediate predecessor to the 2004 Regulations, were in terms identical to the 1993 Regulations.

The decision of this court in Ako is neatly summarised in the headnote to the report in the ICR: -

The leading judgment in this court was given by Mummery LJ. It begins with an introductory paragraph in the following terms: -

In paragraphs 28 to 30 of his judgment, Mummery LJ expanded on his introductory paragraph in the following terms. –

In my judgment, these paragraphs are significant in the context of the instant case, and lend support to Mr. McCluggage’s submissions. I will return to them later in this judgment.

The reference in paragraph 29 of Mummery LJ’s judgment to Sajid, is a reference to the decision of this court in the case of Sajid v Sussex Muslin Society [2001] EWCA Civ 1684, [2002] IRLR 113. In that case, a strict application of the doctrine of estoppel or res judicata would have caused injustice. The claimant had presented an application in the ET seeking damages for breach of contract, as well as for unfair dismissal and a redundancy payment. However, he made it clear in the application that he recognised that the ET’s jurisdiction in relation to breach of contract was limited to £25,000, and reserved the right to rely on the findings of the ET in proceedings in the High Court to recover the balance. He later duly started proceedings in the High Court claiming damages for breach of contract well in excess of the ET limit. His solicitors thereupon wrote to the ET requesting that the breach of contract claim in the ET be withdrawn in the light of the High Court proceedings. The claimant made it clear, however, that he intended to continue in the ET with his other claims.

The ET Chairman, following the pre-2004 Regulations practice, signed a decision to the effect that the breach of contract claim was “dismissed on withdrawal by the applicant”. In the High Court proceedings, the employers contended that the claimant’s breach of contract claim had been concluded by the order of the ET Chairman dismissing it on withdrawal, and that the doctrine of res judicata and/or issue estoppel prevented the claimant from pursuing his claim for breach of contract in the High Court. The Judge rejected the employers’ argument, and his decision was upheld in this court.

The references in paragraph 30 of Mummery LJ’s judgment to Barber and Lennon are to the decisions in this court, respectively, in Barber v Staffordshire County Council [1996] ICR 379, [1996] 2 All ER 748, and Lennon v Birmingham City Council [2001] EWCA Civ 435, [2001] IRLR 826. In both cases, this court held that the principles of cause of action estoppel applied to a case where an application had been withdrawn and dismissed without any argument or reasoned decision on the merits of the case; and that neither claimant, on the particular facts of the case, could rely on any exception which would otherwise preclude her from continuing with her second application. Since in Ako, Mummery LJ does not apply the reasoning in both Barber and Lennon to circumstances in which the withdrawal of the first set of proceedings is in substance a discontinuance, and where justice requires a second claim to be permitted, it is not, I think, necessary to examine further either the reasoning of this court or the facts of either decision.

In Verdin v Harrods Ltd [2006] ICR 396, an ET Chairman had taken the view that if a claimant wished to amend her claim of unfair dismissal, sex discrimination, breach of contract and victimisation by removing the breach of contract claim from the ET (where compensation was limited to £25,000) the claim which was being withdrawn had also to be dismissed. The Chairman, therefore, made an order that, unless the claimant indicated her intention to proceed with the breach of contract claim in the ET, it would be “dismissed on withdrawal” under rule 25(4) of the 2004 Regulations. In the EAT, His Honour Judge Richardson, sitting alone, allowed the claimant’s appeal.

Although the case is on a different point, namely the right to withdraw part of a claim without it being dismissed, as opposed to the right to re-instate proceedings which had been withdrawn, Judge Richardson’s reasoning is, in my judgment, both illuminating and helpful. The Chairman’s decision was promulgated on 15 August 2005. The 2004 Regulations, accordingly, applied, and were described by the judge in paragraph 34 of his judgment as “substantially new”. The judgment continues: -

We were also referred to the decision of this court in Fraser v. Hlmad Limited [2006] EWCA Civ 738 (Fraser), where the facts were similar to Sajid, but with one crucial difference. The claimant had made a claim for both unfair and wrongful dismissal in the ET. Whilst he had expressly reserved the right to pursue an action for wrongful dismissal in the High Court for a sum in excess of the £25,000 limit in the ET, he did not withdraw his claim for wrongful dismissal from the ET, which adjudicated on both claims, and duly awarded him the maximum sum of £25,000 for the latter claim. When he took proceedings in the High Court for the excess over £25,000, he was met with a res judicata – estoppel argument, which was upheld both by the Master, who struck out the claim, and by this court.

For present purposes, it is, I think, sufficient to record two passages from the judgments in the case. The first is Mummery LJ’s observation (in paragraph 7 of his judgment) that the facts of the case revealed “a nasty potential trap for the litigant who decides to add a wrongful dismissal claim to his unfair dismissal claim in the (ET) and to pursue both claims to judgment in the (ET)”. The second comprises the observations by Moore-Bick LJ in paragraphs 45 and 46, in which he said: -

CPR Part 38, which deals with Discontinuance, has a number of similarities to rule 25 of the 2004 Regulations. In very crude outline, CPR rule 38.2(1) provides that a claimant may discontinue all or part of a claim at any time, and CPR 38.2(3) provides that where there is more than one defendant, the claimant may discontinue all or part of a claim against all or any of the defendants. The procedure (CPR 38.3) is to file a notice of discontinuance, and to serve it on every other party to the proceedings. A defendant has a right to apply within 28 days to have the notice of discontinuance set aside (CPR rule 38.4). However, discontinuance against any defendant takes effect on service, and subject to that defendant’s right to apply to have the notice of discontinuance set aside, the proceedings “are brought to an end” against that defendant when service takes place. CPR 38.7 provides: -

Finally, we were referred by Mr. McCluggage to the decision of this court in Vinos v Marks & Spencer plc [2001] 3 All ER 784 (Vinos). This was a personal injuries action, in which the claimant’s solicitors issued proceedings about a week before the expiry of the limitation period, but did not serve the claim form on the defendants until some nine days after the four month period prescribed by Civil Procedure Rules (CPR) 7.5(2)). Mr. Vinos subsequently applied for an extension of time in which to serve the claim form. A district judge held he had no jurisdiction to extend the time. This was because, pursuant to CPR 7.6(3) the court in these circumstances could only extend the time if: -

None of the provisions of CPR 7.6(3) applied in Mr. Vinos’ case, and this court held, in agreement with the district judge, that neither the overriding objective nor the court’s case management powers in Part 3 of CPR (specifically the general power in CPR 3.10(b) to remedy procedural errors) enabled the court to do what CPR 7.6(3) expressly forbade. Whilst CPR 3.1(2) empowered the court to make a number of case management orders, it began with the words “Except where these Rules provide otherwise…..”. Giving the leading judgment in this court, May LJ said at [2001] 3 All ER 784 at 789j – 790a: -

The ET’s “General power to manage proceedings” is contained in Rule 10 to Schedule 1 of the 2004 Regulations. It, too, sets out a number of case management orders which the ET is entitled to make. However, rule 10(1) begins with the words “Subject to the following rules…” Mr. McCluggage accordingly relied on Vinos as authority for the proposition that the ET’s case management rules did not give the ET the power to make an order revoking a notice of withdrawal.

In his grounds for appeal, Dr Khan submitted that the EAT had reached the wrong conclusion because: -

On a proper construction of rule 25, a claim which had been withdrawn, but not dismissed, is live but dormant, and so can be continued;

Rule 25 is concerned only with the consequences of withdrawal and dismissal on a current claim and nothing in Rule 25 presents a fresh claim based on the same cause of action as that on which the dismissed claim was based;

The effect of an application to dismiss proceedings is that the proceedings are no longer at an end and can be continued by the claimant unless there are dismissed by the ET.

For the appellant, Miss Sen Gupta recognised that her construction of the words “brought to an end” in rule 25(3) did not give those words their natural meaning. However, she adhered to her submission that these words must be construed in the overall context of: (i) rule 25 as a whole; (ii) the overriding objective (now contained in rule 3 of the 2004 Regulations); (iii) rule 10 (the general power to manage proceedings); and (iv) the 2004 Regulations as a whole. In that overall context, rule 25, she argued, drew an express distinction between proceedings which were ‘brought to an end’ (rule 25(3)) and proceedings which ‘cannot be continued’ (rule 25(4)). If ‘proceedings which are brought to an end’ could not be continued, then rule 25(4), she argued, would be otiose.

Proceedings which have been ‘brought to an end’, Miss Sen Gupta submitted, were proceedings which were not being continued or were not continuing as a result of the Claimant’s choice to withdraw, as distinct from a Claimant being precluded by the Tribunal from continuing them. The difference in language between the two subsections was, she argued, intentional and marked the contrasting nature of the two acts. Withdrawal was the act of a Claimant. Dismissal was a judicial act by the Tribunal or Chairman. Thus following withdrawal, proceedings were alive but dormant, and could be revived by the Claimant unless and until they were dismissed by the Tribunal.

Miss Sen Gupta accepted that the 2004 Rules did not provide an express mechanism for seeking permission to continue with a withdrawn Tribunal claim. However, she submitted that the Tribunal plainly had jurisdiction, pursuant to its Rule 10 case management powers, to set aside the notice of withdrawal. Rule 25(3) could, accordingly, be read as though it contained the words: “Withdrawal of a claim shall not have the effect that the claim can never be continued – an application to set aside the notice of withdrawal may be made by the claimant. Withdrawal does not affect proceedings as to costs or preparation time’.

The meaning which Miss Sen Gupta sought to give to rule 25 was in fact given to it in a draft of the Rule which, with commendable industry, she had found on the DTI website. Its provenance is uncertain, and it is no longer there. However, in that draft, there was a sub-rule (6), which read: -

A claimant who withdraws a claim (“the first claim”) needs the permission of a chairman either to continue the first claim or to make a further claim against the same respondent if:

Whatever the provenance and status of the draft rule, Miss Sen Gupta went further in this court and submitted that a claimant did not need the permission of the ET to reinstate or revive a withdrawn claim. She argued that a claimant need only inform the ET of his or her intention to do so, since withdrawal was not a judicial act and thus did not need to be overturned by a judicial act.

Miss Sen Gupta argued that there was sufficient material in the 2004 Regulations to protect any respondent against an inappropriate re-instatement of a withdrawn claim. The ET would retain its power to strike out a claim which had not actively been pursued (Rule 18(7)(d)) or where the Chairman or the ET considered that it was no longer possible to have a fair hearing in those proceedings (Rule 18(7)(f)). She also accepted (despite her submission that permission to reinstate was not required as a matter of law) that an ET which received notice of a claimant’s intention to proceed with a withdrawn claim would be likely to list the matter for a Pre-Hearing Review in order to consider strike out and to give directions for the further management of the case in the event that it did not strike it out. She further submitted that an ET might also consider requiring the Claimant to pay a deposit in order to continue with the proceedings (Rule 20), although she candidly acknowledged that this was not the primary function of that rule.

In answer to the argument that there needed to be certainty and finality in litigation, Miss Sen Gupta submitted that Rule 25(4) expressly provided a mechanism by which a respondent could achieve finality of litigation once a claim had been withdrawn. Rule 25(4) gave the respondent 28 days in which to seek an order for dismissal. Further, there was a just and equitable extension of time available to him for making such an application. In the instant case, Miss Sen Gupta pointed out, the PCT had made such an application, which had been refused. Thus the claim was still live, and the claimant could continue with the proceedings.

Miss Sen Gupta laid repeated emphasis on the fact that Rule 25(4) provided that if the proceedings were dismissed, it was those proceedings which could not be continued. That, she argued, was necessarily distinct from the issue of whether other proceedings, i.e. a second claim, could be brought. She argued that permitting a claimant to continue with his original claim had to be considered preferable to the suggestion by the Tribunal Chairman that the Claimant should instead present a second claim. The latter could not, she argued, have been intended to be the consequence of the Rules and would be contrary to the overriding objective (particularly the requirements to deal with cases justly, in ways which are proportionate, and ensuring that the case is dealt with expeditiously and fairly and saving expense). Thus requiring a Claimant to present a second claim cannot have been intended to be the effect of Rule 25.

For the PCT, Mr. McCluggage, unsurprisingly and with the minor exception identified in paragraph 63 below, adopted the judge’s essential reasoning. He agreed with Miss Sen Gupta that the issue arose because of an unhappy choice of wording within paragraphs (3) and (4) of rule 25, which created an apparent tension between the two provisions. The nub of the issue, he argued, was the achievement of a reconciliation between the phrase “proceedings are brought to an end” through a claimant’s withdrawal by subsection (3), and the statement in sub-section (4) that it was only after a dismissal that “proceedings cannot be continued by the claimant”. The key to rule 25, he argued, was an understanding that the effect of dismissal under rule 25(4) was to create a cause of action estoppel. Accordingly, as the judge had found, the words “those proceedings cannot be continued by the claimant” in rule 25(4) needed be construed as meaning that the claimant could not continue by commencing fresh proceedings. That construction, he submitted, was consistent with the well established difference between withdrawal (‘discontinuance’) and dismissal in civil proceedings. The Appellant’s submissions failed adequately to address the difference between the two concepts. The analysis by the ET Chairman that the purpose of subsection (4) of the 2004 rules was to formalise the distinctions discussed by the Court of Appeal in Ako between a withdrawal (said to be equivalent to a “discontinuance” in civil proceedings) and a dismissal was, accordingly, correct.

Mr. McCluggage also relied on the decision of the EAT in Verdin v. Harrods [2006] ICR 396 which, he submitted, recognised that the purpose of the new rule 25 was to deal with the Ako issues. He invited us to compare and contrast CPR Part 38 relating to discontinuance in the civil courts. He submitted that the parallels were plain and that the comparison assisted with understanding the rationale of the distinction between withdrawal and dismissal and hence construction of rule 25.

Once it was understood that the underlying purpose of the new rule 25 was to deal with the problem presented in Ako, then the final sentence of rule 25(4) could be read purposively. There was no need to re-write it. The words “those proceedings” in rule 25(4) simply needed to be understood as relating to the subject matter of the proceedings.

Although Rimer J had expressed disbelief that the draftsman either regarded it as necessary, or was intending to impart the “blindingly obvious intelligence” that a dismissed claim cannot be continued, it was more likely, Mr. McCluggage submitted, that the draftsman was clumsily trying to express the effect of a cause of action estoppel. The Appellant’s argument required, in effect, the whole rule to be re-written.

Mr. McCluggage relied on Vinos for the proposition that the appellant could not invoke Rule 10 of the 2004 Regulations, which provided a general power to manage proceedings. Vinos, he submitted, was authority for the proposition that where there is an unqualified specific provision, a general provision is not to be taken to override it.

Mr. McCluggage further submitted that the principles contained in the Overriding Objective very much supported the PCT’s construction of rule 25. The concept of proportionality should not encourage litigants to change their mind months later as to whether to revive their withdrawn proceedings. Further, it should not encourage the need for tribunals to consider strike-out applications at uncertain times in the future in order to consider whether revived proceedings constituted an abuse of process. The desirable effect of rule 25, on the Respondent’s construction, was that if a respondent wished to have the finality of litigation determined (by a tribunal considering whether to dismiss the withdrawn proceedings), then there was a fixed time period of 28 days within which application for dismissal must be made. The finality point was therefore determined quickly and efficiently while the case was fresh in the parties’ minds and there was no prejudice to either party through delay.

Mr. McCluggage also argued that the existence of the relief sought by the appellant would cause difficulty and delay in ET proceedings, which were meant to be simple and straightforward. Furthermore, no injustice would arise in a case in which the claimant had good reason to made a second claim after the first had been withdrawn but not dismissed. The ET had ample powers to extend the time to commence proceedings, In relation to unfair dismissal, the Employment Rights Act 1996, section 111(2)(b) provided for an extension of time where the ET was satisfied that “it was not reasonably practicable” for the complain to be presented in three months, and both the Sex Discrimination Act 1975, section 76(5) and RRA 1976, section 69(6) provided that the time limits imposed by those Acts could be extended where it was “just and equitable” to do so.

I have come to the conclusion that I prefer the submissions made by Mr. McCluggage, and that the decisions of both the Tribunal Chairman and the EAT were correct. I would, for my part, be prepared, broadly speaking, to adopt the judge’s judgment as my own, but out of deference to the skilful and moderate way in which Miss Sen Gupta advanced Dr. Khan’s case, I add some thoughts, albeit inevitably somewhat repetitious, of my own.

I agree with both Mr Brain and Rimer J that the problem in construing rule 25 of the 2004 Regulations lies essentially in the apparent contradiction between the language used in rules 25(3) and (4) and in particular in draftsman’s use of the words “those proceedings” in rule 25(4). It is thus arguable – as the Chairman perceived – that either rule 25(4) is otiose; alternatively, if the proceedings which are liable to be dismissed are the same as the proceedings which have been withdrawn, there is nothing (notwithstanding the words “brought to an end” in rule 25(3)) to prevent the claimant reviving them either if no application to dismiss is made, or if such an application is made but is unsuccessful.

I am, however, satisfied that neither outcome was the draftsman’s intention, nor does either represent the true construction of the rule. I reach this conclusion for a number of reasons.

In the first place, in my judgment, the ET is a creature of Statute and its procedure is specifically governed by the 2004 Regulations. It is much used by litigants in person. Its procedures are governed by what is meant to be an informal, but clearly understood code. Thus, whilst at first blush, and particularly given the tight time-limits for instituting proceedings, it might seem sensible to have a procedure by means of which a litigant who had mistakenly withdrawn a claim should be allowed to revive it, I am satisfied that, for such a procedure to exist, it would need to be set out expressly in the rules. I therefore regard the absence of any such express provision in the rules as important.

The point is, I think, emphasised by the draft rule which Miss Sen Gupta found on the DTI web-site. Had that rule been promulgated, she would have been on strong ground. But it was not.

Secondly, whilst none of the authorities cited to us is directly in point, their thrust seems to me strongly to support the proposition formulated by Moore-Bick LJ in paragraph 46 of his judgment in Fraser that the lacuna in the rules identified by Mummery LJ in Ako has now been made good. This is also, I think, the basis of Judge Richardson’s reasoning in the extracts from his decision in Verdin which I have set out in paragraph 44 of this judgment, and with which I agree. I have less difficulty than Rimer J, despite the clumsy wording of rule 25(4), in reaching that conclusion.

Thirdly, it seems to me that the construction of the rule favoured by the ET Chairman and the judge is consistent with the CPR, and maintains the well-established distinction between a claim which has been withdrawn, but on which there is no judicial determination, and a claim which has been dismissed by means of a judicial act. The first does not, of itself, create either issue or cause of action estoppel: the latter does. Thus, if respondents to a claim in the ET wish to secure their position, they must apply to the ET for the claims against them to be dismissed. If they do not, they have the possibility that the claimant may bring a second claim on the same facts.

For the reason given in paragraph 70 above, I am unable to accept Miss Sen Gupta’s submission that, as a matter of law, no order is required to enable a claimant to revive a withdrawn claim. Miss Sen Gupta herself, I think, recognised the weakness of her argument on this point, but felt compelled to advance it, since it followed logically if her primary submission (that withdrawn proceedings were dormant rather than “brought to an end”) was correct. For the reasons I have attempted to give, however, I agree with the Chairman of the Tribunal and the judge that the words “brought to an end” mean what they say. Those particular proceedings have indeed been brought to an end, and cannot be revived against a respondent. That does not mean, however, that absent dismissal, a fresh claim on the same facts cannot be made.

I am equally unable to accept Miss Sen Gupta’s alternative proposition that other rules in the 2004 Regulations enable the ET to permit a claimant to revive a withdrawn claim. I take this view for two reasons which are additional to the proposition that the rules themselves made no specific provision for the revival of a withdrawn claim.

Firstly, it seems to me that such an order is not within the concept of case management or the “General Power to manage proceedings” conferred by Rule 10 of Schedule 1 to the 2004 Regulations. I do not think it necessary to illustrate this point by reference to any of the specific examples of the orders which may be made under rule 10(1) as set out in rule 10(2). Secondly, I accept Mr. McCluggage’s submission that the words “Subject to the following rules” with which rule 10(1) begins are significant, and that the reasoning of this court in Vinos v Marks & Spencer applies. It is also noteworthy that each section of the 2004 Rules is separated from its neighbours by specific sub-headings. Rule 25 is headed “Withdrawal of Proceedings”, and is the only rule under that heading.

Finally, I am satisfied, for the reasons set out in paragraph 66 that the construction favoured by Mr. Brain and the judge will not cause injustice to claimants who have good reasons for seeking to withdraw a particular claim and to bring another on the same facts. Indeed, and for the reasons put forward by Mr. McCluggage, I regard this process as more in keeping with the over-riding objective than the procedure for which Miss Sen Gupta argues.

Whilst, therefore, I agree with the judge that the drafting of rule 25 is “lamentable”, and that it is ambiguous, I am satisfied that there was no error of law in the decision of the Tribunal Chairman, and I would dismiss this appeal. In so far as it is necessary to do so, I would also refuse Dr. Khan’s application for permission to appeal against the order for costs made by the Chairman.

Although I have reached a clear view on the meaning of rule 25, it would, in my judgment, nonetheless be sensible, when the Rules are next revised, for the relevant body to reconsider it, and on the assumption that its intended meaning is that found by the Tribunal Chairman, so to amend it as to remove its current ambiguity.

During the period over which this judgment has been reserved, it has come to our notice that on 23 March 2006, His Honour Judge Burke QC, sitting alone in the EAT in the case of Ellis and West Malling Golf Club Kent Limited v Mrs. L Yansen [2006] UKEAT / 0132 / 06 ZT followed the decision of Rimer J in the judgment under appeal, albeit, as he said, with some hesitation and despite concerns about the injustice which the application of his interpretation of the rule to the particular facts of the case was capable of generating. He also commented on what he described as the "remarkable" drafting of rule 25. As Judge Burke's reasoning is consistent with the reasoning of Rimer J in the judgment under appeal, we need say no more about the case.

I agree

I also agree that for the reasons given by Wall LJ this appeal should be dismissed.

At the end of the hearing I invited counsel to address us on the relevance, if any, of the judgment of this court in Rastin v British Steel plc [1994] 1 WLR 732. In that case this court held that CCR Order 13 rule 4 gave a court power to extend the time for taking a step in the action even though the action had in the meantime been automatically struck out under CCR Order 17 Rule 11 by reason of the claimant’s failure to take that step. Although Sir Thomas Bingham MR said that the court saw considerable force in the defendant’s submission to the effect that the action was dead as a result of the automatic strike-out and there was no jurisdiction to revive it, the court rejected that submission for the four reasons set out at p 739 B-D of the report.

After the hearing was over we received argument from both parties on the relevance of that decision to the point we now have to decide. I intend no discourtesy to Miss Sen Gupta’s spirited written submissions when I say that the court was there dealing with an entirely different problem in the context of an entirely different regulatory scheme, and that the judgment in Rastin throws no useful light at all on the point we are now having to decide.