London Borough of Enfield v Sivanandan

The Court of Appeal allowed the appellant's appeal and struck out the respondent's Queen's Bench proceedings as an abuse of process. The court held that the breach of contract claim was not validly withdrawn from the Employment Tribunal and was therefore finally disposed of when the Tribunal struck out the whole claim on 6 September 2000; the claim is therefore res judicata. Alternatively, even if the contractual claim had been withdrawn, the re‑litigation in the Queen's Bench was an abuse because the matters and factual matrix leading to alleged contractual loss were the same as those before the Employment Tribunal and the Tribunal had jurisdiction to award uncapped compensation for racial discrimination and victimisation. The court also held that the respondent had repeatedly treated the Tribunal proceedings as bringing about the end of her employment (i.e. acceptance of repudiation), limiting the scope of any contractual damages claim. The court relied on CPR Rule 3.4(2)(a) and (b) as the procedural basis for striking out.

The respondent issued proceedings in the Queen's Bench Division for damages for breach of contract, relying on a purported continuing employment relationship with the London Borough of Enfield after a December 1996 suspension and dismissal by Enfield Racial Equality Council (EREC). The respondent had earlier pursued multiple claims (race discrimination, victimisation, unfair dismissal, breach of contract and sex discrimination) in the Employment Tribunal. After protracted interlocutory litigation and repeated hearings the Employment Tribunal fixed an extensive full hearing but ultimately struck out the originating application on 6 September 2000 for the applicant's conduct of the proceedings; the EAT dismissed the subsequent appeal.

The respondent issued the present High Court claim on 10 December 2002 (the last day before expiry of the six‑year limitation period). The Council applied to strike out in the High Court and then appealed the refusal in part of the Master and Sir Edwin Jowitt's dismissal of strike out pleas. The Court of Appeal heard whether the contractual claims had been withdrawn from the Tribunal (and so survived the Tribunal strike out), and whether, in any event, the new proceedings amounted to an abuse of process.

The court framed the issues as: (i) had the respondent validly withdrawn her breach of contract claim from the Employment Tribunal so as to permit re‑litigation in the High Court; (ii) if withdrawn, was the High Court claim nonetheless an abuse because it sought to re‑litigate the same factual matrix (race discrimination and victimisation) that could have been, and was, before the Tribunal; and (iii) whether the respondent had accepted the employer's repudiation such that the contract fell to be treated as terminated at the date of dismissal.

The Court of Appeal concluded the breach of contract claim had not been validly withdrawn from the Employment Tribunal and so was struck out with the rest of the tribunal proceedings on 6 September 2000; the claim is therefore res judicata. Even if the claim had been withdrawn, the court held the Queen's Bench proceedings amounted to an abuse of process because they sought to relitigate the same matters which the Employment Tribunal had been asked to determine and which could attract uncapped awards under the Race Relations Act 1976. The court also accepted that the respondent's conduct and statements in the Tribunal proceedings evidenced acceptance of repudiation of contract in December 1996, limiting any contractual damages claim. The court therefore struck out the High Court proceedings under CPR rule 3.4(2)(a) and (b).

Appeal allowed. The Court of Appeal held (i) that the respondent’s breach of contract claim had not been validly withdrawn from the Employment Tribunal and was therefore struck out with the rest of her tribunal claims on 6 September 2000 (res judicata); and (ii) alternatively, even if it had been withdrawn, the Queen’s Bench proceedings were an abuse of process because they sought to relitigate the same factual matrix and rights that were before the Employment Tribunal and which could attract uncapped relief under the Race Relations Act 1976. The proceedings were struck out under CPR rule 3.4(2)(a) and (b).

Proceedings began in the Stratford Employment Tribunal (Form IT1 filed 8 March 1997). The Tribunal made interlocutory orders and later fixed a lengthy full hearing but struck out the originating application on 6 September 2000 for frivolous, vexatious and scandalous conduct; the EAT dismissed the respondent's appeal on 23 July 2002 and permission to appeal to the Court of Appeal was refused in October 2002. The respondent issued Queen's Bench proceedings on 10 December 2002. Master Leslie set aside default judgment and struck out parts of the particulars of claim on 13 November 2003; Sir Edwin Jowitt dismissed the appeal and cross‑appeal in a reserved judgment handed down 5 April 2004. Brooke LJ granted the appellant permission to appeal on paper (20 May 2004); Maurice Kay LJ later allowed the respondent to file a respondent's notice out of time. The Court of Appeal (Peter Gibson LJ, Buxton LJ and Wall LJ) heard the appeal on 3 December 2004 and gave judgment 20 January 2005, allowing the appeal and striking out the Queen's Bench proceedings under CPR 3.4.