University of London v Tariquez Zaman

Abuse of process is assessed by a broad, merits-based judgment addressing the public and private interests and all the circumstances, with attention to whether the later proceedings amount to unjust harassment or misuse of the court’s process.

Overlap in remedies or factual issues does not, by itself, make later proceedings abusive. Where an Employment Tribunal could not determine a separate breach of contract claim, the claimant is not generally required to reserve that claim or warn that it may be brought in the High Court. The defendant bears the burden of establishing abuse.

The University of London appealed against Master Roberts’s refusal to strike out Dr Zaman’s High Court claim for breach of contract as an abuse of process.

Dr Zaman had previously brought unsuccessful discrimination proceedings and successful victimisation proceedings in the Employment Tribunal. He later claimed that the University had contractually promised him progression to a General Practice Registrar post without a competitive interview.

The appeal concerned whether the later contract claim was abusive because it sought overlapping damages, relied on overlapping facts, or should have been reserved when the Tribunal claims were brought.

1. Appeal dismissed. The University failed to establish that the High Court contract claim was an abuse of process.
2. The governing approach was the broad, merits-based assessment described in Johnson v Gore Wood [2002] 2 AC 1. The court must consider the public and private interests and all the circumstances, focusing on whether the claimant is misusing the process by raising an issue which could have been raised earlier. Abuse will rarely be found without unjust harassment. The defendant bears the burden of proof.
3. Sheriff v Klyne Tugs [1999] IRLR 481 and London Borough of Enfield v Sivanandan [2005] All ER (D) 165 illustrated abuse where a later claim was in substance the same as an earlier claim. They established no new principle and turned on their facts.
4. The discrimination claim required proof of less favourable treatment because of race or sex. The contract claim required proof of a contractual entitlement to automatic progression to a General Practice Registrar post. The outcome of one claim did not determine the outcome of the other. Their factual overlap did not make the later proceedings abusive.
5. Overlap in remedies was likewise insufficient. The existence of overlapping remedies in unfair dismissal and wrongful dismissal proceedings did not make later contract proceedings abusive, consistent with Fraser v HLMAD Ltd [2006] ICR 1395.
6. Dr Zaman could not have brought the contract claim against the University in the Employment Tribunal because the University was not his employer. He was therefore not required to reserve contract damages or notify the University that he might sue in the High Court. In any event, the University knew that he asserted an entitlement to the further post.
7. The Master had considered the relevant factors and reached a conclusion open to him. There was no error of law or perversity.

• High Court (Queen’s Bench Division): appeal from Master Roberts’s judgment of 13 July 2009 dismissing the University’s application to strike out the breach of contract claim as an abuse of process. The appeal was dismissed.