Okoturo v Tesco Stores Plc

Cause of action estoppel is not applied mechanically whenever an employment tribunal claim is withdrawn. The court must examine the surrounding circumstances, including whether the claimant intended to abandon the claim and whether allowing fresh proceedings would constitute an abuse of process. The principle of finality must be balanced with the public interest in fair hearings. That balance is compatible with Article 6. A procedural complaint which did not affect the fairness of the proposed hearing, and which provided no adequate justification for withdrawal, does not permit the claimant to resurrect the same causes of action. An extension of time requires a good reason for delay.

The applicant had brought employment tribunal claims against Tesco Stores Plc, withdrawn them, and later commenced further proceedings raising substantially the same causes of action. The first complaint was dismissed on withdrawal, and the repeated claims in the second complaint were struck out under the then Employment Tribunal Rules of Procedure 1993, applying Barber v Staffordshire County Council 1996 IRLR 209. The Employment Appeal Tribunal dismissed the applicant’s challenge.

He applied to the Court of Appeal for permission to appeal and an extension of time. He argued that applying cause of action estoppel denied access to a court and a fair hearing under Article 6, and relied on Ako v Rothschild Asset Management Ltd and Another and the surrounding circumstances of his withdrawal.

The application for permission to appeal and the application for an extension of time were refused. There was no order for costs.

1. Withdrawal and estoppel. The court accepted the principles stated in Ako v Rothschild Asset Management Ltd and Another. A withdrawal does not invariably create cause of action or issue estoppel. The surrounding circumstances may show that the claimant did not intend to abandon the claim, in which event subsequent proceedings may remain possible unless their commencement would be an abuse of process.
2. Relationship with earlier authority. Ako v Rothschild Asset Management Ltd and Another distinguished and placed in a different light the earlier decisions in Barber v Staffordshire County Council and Lennon v Birmingham City Council. The principle of finality therefore remained important, but it was not to be applied without examining the circumstances of the withdrawal.
3. Application to the applicant. The applicant withdrew because he alleged delay in serving the originating application. That delay did not prejudice the fairness of any subsequent hearing and was wholly inadequate justification for abandoning the claims while reserving the possibility of bringing them again. The circumstances did not resemble those in Ako v Rothschild Asset Management Ltd and Another, where the claimant had not intended to abandon her claim and a fresh action would not be unfair or abusive.
4. Article 6 and finality. Article 6, applied through the Human Rights Act 1998, did not prevent courts from restraining repetitive proceedings. The applicant had an opportunity to present his case before an employment tribunal and chose not to pursue it. Applying finality in those circumstances was consistent with a fair hearing.
5. Time. The application was substantially out of time. No good reason for the delay had been shown, so an extension would have been refused independently on that ground.

• Court of Appeal (Civil Division): refused permission to appeal and refused an extension of time.
• Employment Appeal Tribunal: dismissed the applicant’s challenge to the employment tribunal’s striking out of repeated claims. The judgment was dated 4 December 2001 and sent to the parties on 19 December 2001.