BUQ v HRE

By an Application Notice dated 27 September 2012 the Claimant asks for an order that the trial of this action, presently listed for a three day hearing to start on 19 November 2012, be adjourned to follow the determination of the Defendant’s claim in the Employment Tribunal (“ET”). Those proceedings are presently listed for a hearing on 13 March 2013, with an estimate of 14 days on and between 11 March and 12 April 2013 (preceded by two reading days on 7 and 8 March).

In this action the Claimant claims only an injunction. In the Employment Tribunal the Defendant makes claims against four Respondents. Three of the Respondents (“the Employer Respondents”) are companies (there is an issue as to which was his employer) and the Claimant is the Second Respondent. The circumstances in which there arose, not only this action, but also the Defendant’s complaints about the termination of his employment, are briefly related in the judgment I handed down on 29 March 2012 ([2012] EWHC 774 (QB)). It is unnecessary to repeat here what is set out in that judgment.

The issues in this action are essentially those considered in that judgment, although they are now set out in Particulars of Claim and a Defence. Witness statements have been exchanged and the action is nearly ready for trial.

The proceedings in the Employment Tribunal were started on 3 May 2012. They too are in an advanced state of preparation, with disclosure due to take place in December. On 11 September 2012 the ET issued a Judgment and Order covering 22 pages. It set out in a lengthy Schedule the large number of issues that arise in those proceedings. They arise under headings which include: A. identity of the employer; B unfair dismissal; C automatically unfair dismissal; E sexual harassment/sexual orientation harassment/sex discrimination, F. victimisation, and I. remedy. The Defendant also claims detriment for public interest disclosure, which he contends consisted of allegations against the Claimant and others.

Although heading E does not raise exactly the same issues as those that arise in this action, there is a substantial overlap. The Employer Respondents allege that the Defendant has misused substantial sums of their money for his own personal benefit. The Defendant alleges that the Claimant authorised the expenditure of which the Employer Respondents complain. The Claimant denies this, and alleges that the discovery of this misuse of company funds is the motive for the most significant of the sexual allegations which the Defendant makes, falsely, as the Claimant contends.

The present privacy proceedings and the claims in the Employment Tribunal are each most unusual. While there are a number of cases on whether proceedings in the High Court should precede, or should follow, proceedings in other tribunals or courts, there is no case which resembles these two cases on their facts. There is no dispute that the court should seek to achieve the overriding objective of doing justice in accordance with CPR 3.1.

Mr Nicklin submits that in the particular circumstances of this case the ET will be better placed to decide the issues where there is an overlap between the two proceedings. While the sexual allegations arise directly in both proceedings, the financial allegations against the Defendant are an issue in the ET, but are relevant to credibility in the privacy action. Without being able to decide on the merits of the financial allegations against the Defendant, the High Court will be less well placed than the ET to decide the sexual allegations, since it is the Defendant’s case that the financial allegations provide the motive for what he contends are the false sexual allegations.

Further Mr Nicklin submits that if the Defendant succeeds in the ET, having proved his sexual allegations, the reality is that the High Court proceedings will be at an end, and will not need to take up further court time. And if the Defendant fails, or fails substantially, in the ET, the High Court will be better placed to decide the appropriate form of relief in the privacy action than it would be if it were to have to decide on relief in this action before the ET proceedings had been tried.

Mr Nicklin accepts that there is an issue in the privacy proceedings which does not arise directly in the ET, namely whether the Claimant misled the High Court in March, in the course of his application for the privacy injunction. Mr Choudhury submits that this is an important point, because he would wish to rely on that contention in the ET as going to the credibility of the Claimant.

Mr Nicklin submits that the court should have regard to the interests of the Employer Respondents. They are not parties to the High Court action. Any finding of fact made in the High Court in a trial this November would be res judicata as between the Claimant and the Defendant, and the Employer Respondents would or might be disadvantaged. I place little weight on this point, since Mr Nicklin has no instructions from any Respondent other than the Claimant, and I think it unlikely that those Respondents would be materially disadvantaged as a matter of practice. If they were likely to be, I would expect them to inform the court themselves of that fact.

Mr Nicklin notes that there is little if any reliance by the Defendant on his rights to freedom of expression. As noted in the judgment I delivered in March, he denies that he threatens to make any publication.

In addition to the point referred to in para 9 above, there have been disputes between the parties on the extent to which the Defendant can use in the ET the witness statement of the Claimant referred to in para 4 of the order of Bean J dated 14 March (which was continued, as to that paragraph by my order of 2 April 2012). Mr Choudhury submits that further disputes as to that are likely, and if not resolved by agreement, these disputes may lead to another application to this court. Since the High Court trial is estimated to last only three days, if there were to be contested interim applications, little benefit would accrue from adjourning a trial which, if it were not adjourned, would make such applications unnecessary.

Mr Choudhury further submits this application for an adjournment is made very late, and substantial costs have been incurred in preparing for the trial listed for November. He submits that in general High Court proceedings should be accorded precedence over civil proceedings pending before other courts or tribunals.

Mr Choudhury also relies on the stress that the Defendant is suffering. He wishes to get these disputes resolved, so that he can resume his life again.

Mr Choudhury submits that there is a real risk that the Claimant is motivated by a desire not to have to give evidence, and that he should be required to press on with the action which he himself started. It is possible that the ET may not have to make the findings which, if made, would assist the High Court, or that the findings that the ET does make may not in the event simplify the task of the High Court.

In my judgment the issue is finely balanced. One point that concerns me is that, if the trial in this court is adjourned, there is a risk of an interim application concerning the use to which the Defendant may put, in the ET, the evidence of the Claimant in these proceedings last March. And that may take up a significant part of the time that could have been spent trying this action. In response to my expression of this concern Mr Nicklin sought to re-assure the court. He accepted that the ET should have available to it all the evidence relevant to the issues it had to decide, and that that could be achieved by appropriate permission being given by consent to the Defendant to use the witness statement, notwithstanding para 4 of the order of Bean J. However, he did not go so far as to agree that there should be no restriction at all.

There are times when the court has to trust the assessment of experienced counsel as to the course that proceedings are likely to take. I have no doubt of the sincerity of Mr Nicklin. But there is a risk that he may be being over optimistic. However, on this occasion I will trust his assessment that, if I grant the adjournment of the trial that he is seeking, this court is not likely to have to consider any application in this action before the ET proceedings are concluded. I accept his submissions that the ET, which will have to determine the financial allegations made against the Defendant, will be better placed than this court would be to determine the truth or otherwise of the sexual allegations that the Defendant makes.

For these reasons I shall vacate the date for the trial of this privacy action and direct that it be relisted, if the parties are not otherwise agreed, at a date as soon as practical after the final determination of the ET proceedings.