Murali v Department Of Health & Ors

In discrimination proceedings, earlier events are not necessarily res judicata merely because they were included in an earlier unsuccessful claim. They may constitute evidence supporting a later cause of action if a subsequent event strengthens or completes the alleged discriminatory pattern.

However, continued requests for review of the same decision do not ordinarily create a fresh cause of action. A later claim must identify a genuinely new and distinct event capable of supporting the new allegation. Recharacterising the same conduct as victimisation does not avoid the principle of finality. Permission to appeal may properly be refused where the proposed claim remains legally unsustainable.

The applicant, a specialist registrar, brought an earlier Employment Tribunal claim alleging race discrimination, breach of contract and related matters. That claim was dismissed as out of time, and the decision was not appealed.

He later presented a further originating application relying substantially on the same history, together with later correspondence. The Employment Tribunal dismissed it as res judicata and ordered him to pay £300 costs. The Employment Appeal Tribunal dismissed his appeal. He applied to the Court of Appeal for permission to appeal, challenging both the substantive decision and the costs order.

The central issue was whether the later material disclosed a new and viable claim or merely continued the earlier dispute.

1. Application refused. The Court of Appeal refused permission to appeal on both the substantive issue and costs.
2. The principle requiring a party to advance the whole case at the first opportunity prevents successive causes of action being constructed from the same facts. In a discrimination case, however, earlier events may remain evidence rather than the res itself. If a later event strengthens the inference of discrimination, a subsequent claim is not necessarily barred merely because the earlier events featured in the first claim. The court referred to Johnson v Gore Wood & Co as expressing this principle.
3. That qualification did not assist the applicant. His correspondence showed that he continued to seek review of the original refusal to readmit him to Type I rotational training. The change in academic year did not make the request, or the refusal, new. The additional facts therefore did not establish a fresh discriminatory act.
4. Recasting the complaint as victimisation also failed. Conduct during the intervening proceedings could support a new claim only if something new and distinct pointing to victimisation had emerged. Delay in responding, cancellation of a meeting and the rotation of other trainees did not satisfy that requirement.
5. The omission of detailed argument concerning the applicable 1996 and 1998 regulations from the Employment Tribunal’s reasons was not an error of law. In the absence of a new event, that issue was no longer live. The £300 costs award had a sufficient basis and was a permissible exercise of discretion.

• Employment Tribunal: The first claim was dismissed as out of time. A later originating application was dismissed as res judicata, with a £300 costs order.
• Employment Appeal Tribunal: The applicant’s appeal was dismissed.
• Court of Appeal (Civil Division): Permission to appeal was refused.