Lennon v Birmingham City Council

An order dismissing proceedings on a claimant’s withdrawal is a judicial decision capable of founding issue estoppel, even where no evidence was heard and the merits were not adjudicated. The effect turns on the order made, rather than the reason for withdrawal or dismissal. This differs from the Henderson v Henderson abuse-of-process principle, which concerns matters that could have been raised but were not. The Civil Procedure Rules did not alter that substantive law. Article 6 of the European Convention on Human Rights does not confer a right to relitigate through successive courts.

Mrs Lennon brought Employment Tribunal proceedings concerning alleged harassment, bullying, discrimination, vicarious liability and health and safety duties. The application was dismissed on withdrawal on 30 November 1998.

She later brought county court proceedings in negligence and breach of contract based substantially on the same facts. A Deputy District Judge refused to strike out the claim. On appeal, His Honour Judge Griffiths-Jones struck it out, holding that the Tribunal’s dismissal could found issue estoppel and relying on Barber v Staffordshire County Council [1996] 2 All.E.R. 748. The central issue was whether dismissal on withdrawal, without adjudication on the merits, could create an estoppel and whether the matter fell instead within the wider abuse-of-process principle in Henderson v Henderson.

1. Appeal and issue. Buxton LJ gave the leading judgment. Mantell and Pill LJJ agreed. The appeal was dismissed because the Employment Tribunal had made an actual order dismissing proceedings which substantially repeated the later county court claim.
2. Issue estoppel. The court followed Barber v Staffordshire County Council [1996] 2 All.E.R. 748. A dismissal on withdrawal is a judicial decision made by a competent tribunal, not merely an administrative acceptance of discontinuance. Issue estoppel does not require a reasoned decision on fact and law, a hearing of evidence, or adjudication of the merits. The relevant consideration is the order actually made. The claimant’s reason for consenting to dismissal, and the court’s reason for making the order, are immaterial. The principle in SCF Finance Co Ltd v Masri [1987] QB 1028 reinforced the conclusion that a party who advances a positive case and accepts its dismissal ordinarily loses the right to raise it again, save in exceptional circumstances.
3. Res judicata and abuse of process. The court distinguished issue estoppel from the wider Henderson v Henderson jurisdiction. The latter concerns matters which could and should have been brought forward but were not. Here, the whole case had been brought forward in the earlier proceedings and dismissed. The objection was therefore res judicata in the form of issue estoppel, rather than abuse of process under the wider Henderson principle. The distinction was confirmed by Sheriff v Klyne Tuggs (Lowestoft) Limited (1999) IRLR 481 and explained in Bradford and Bingley Building Society v Seddon Hancock and Others [1991] 1 WLR 1482.
4. Further arguments. The Civil Procedure Rules did not change the substantive law of res judicata or require a different approach to the strike-out. Article 6 of the European Convention on Human Rights guarantees access to a court, not repeated access to successive courts, and did not prevent rules designed to secure fair and economical litigation. The appeal was dismissed with costs assessed by consent at £3,245.75, including VAT where chargeable.

• Court of Appeal (Civil Division): Appeal dismissed with costs. The leading judgment was given by Buxton LJ, with Mantell and Pill LJJ agreeing. [2001] EWCA Civ 435 .
• Birmingham County Court: His Honour Judge Griffiths-Jones allowed the Council’s appeal from Deputy District Judge Turner and struck out the county court claim on the basis of issue estoppel, relying on Barber v Staffordshire County Council [1996] 2 All.E.R. 748.
• Birmingham County Court, Deputy District Judge: Deputy District Judge Turner refused to strike out the claim, treating the Tribunal’s dismissal on withdrawal as an acceptance of discontinuance rather than a decision capable of founding res judicata.
• Employment Tribunal: The application was dismissed on withdrawal on 30 November 1998.