Khan v Heywood & Middleton Primary Care Trust

This appeal concerned the construction of rule 25 in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the 2004 Regulations) and whether an Employment Tribunal has jurisdiction to set aside a claimant's written notice of withdrawal of a claim. The Court of Appeal held that rule 25(3) means what it says: a written withdrawal brings the particular proceedings "to an end" as a matter of the rules and cannot be revived as the same proceedings. Rule 25(4) provides a separate, specific mechanism by which a respondent can seek judicial finality by applying within 28 days for dismissal; a dismissal under rule 25(4) operates to prevent a claimant from commencing fresh proceedings on the same cause of action (cause of action estoppel). The tribunal's general case management power in rule 10 does not authorise an order revoking a withdrawal notice where the rules contain no express provision to that effect. The appeal was therefore dismissed.

This case arose from a tribunal claim by Dr Sajid Saeed Khan alleging racial discrimination by Heywood & Middleton Primary Care Trust arising from an unsuccessful application for a post. After a case management discussion the claimant's solicitors wrote on 6 April 2005 to withdraw the claim in writing; the tribunal sent an acknowledgment on 11 April and the file was closed. The claimant later changed representatives and sought to have the withdrawal set aside so the original proceedings could be continued; the respondent applied for dismissal under rule 25(4) and for costs. The tribunal chairman refused to set aside the withdrawal and dismissed the parties' cross-applications on the basis that the prejudice to the respondent of permitting revival was outweighed by prejudice to the claimant. The claimant appealed to the Employment Appeal Tribunal (EAT) and lost. He then obtained permission to appeal to the Court of Appeal.

Nature of the application: whether an Employment Tribunal has jurisdiction to set aside a written notice of withdrawal under rule 25(2) and thereby allow the claimant to continue the same withdrawn proceedings.

Issues framed:

• Whether rule 25(3)'s statement that proceedings are "brought to an end" can be read as leaving the withdrawn proceedings dormant and capable of revival without an express rule authorising revival;
• Whether rule 25(4) implies a tribunal power to set aside a withdrawal or whether it is directed only to the consequences of a dismissal application (notably the application of cause of action estoppel);
• Whether the tribunal's general case management power under rule 10 can be used to permit revival of withdrawn proceedings.

Court's reasoning: The court preferred a purposive construction that honoured the clear wording of rule 25(3) that withdrawal brings the proceedings to an end. The absence of any express rule permitting revival was significant: if a revival power were intended it should have been stated expressly (and a draft that would have done so had been considered but was not enacted). Rule 25(4) was read as preserving respondents' rights to apply for dismissal so as to obtain finality and to prevent a claimant from starting fresh proceedings in the same cause of action by reason of cause of action estoppel. The tribunal's general case management power in rule 10 could not be used to override the specific effect of rule 25: Vinos v Marks & Spencer and related reasoning showed that a general power does not displace a specific unqualified provision. The court accepted that the drafting of rule 25 was lamentable and ambiguous, but concluded the tribunal chairman and the EAT had not erred in law.

The court noted related authorities (notably Ako v Rothschild Asset Management Ltd and Sajid) which illustrated the policy tensions between finality and fairness, but concluded that the 2004 Regulations (and the case law interpreting them) provided the respondent with an express remedy for securing finality.

Appeal dismissed. The Court of Appeal held that under rule 25 a written withdrawal brings the particular proceedings to an end and there is no jurisdiction under rule 10 to set aside that withdrawal; rule 25(4) preserves a respondent's right to apply for dismissal and if granted a dismissal will prevent a claimant commencing fresh proceedings on the same cause of action (cause of action estoppel). The drafting is ambiguous but the tribunal chairman and the EAT did not make an error of law.

Appeal from the Employment Appeal Tribunal (Rimer J, UKEAT/0581/05/ZT, [2006] IRLR 345) which dismissed the claimant's appeal from the decision of the Manchester Employment Tribunal Chairman (decision promulgated 31 August 2005); the Court of Appeal ([2006] EWCA Civ 1087) dismissed the appellant's appeal.