Agbenowossi-Koffi v Donvand Ltd

A later claim is not automatically an abuse of process merely because it could have been brought earlier. The court must make a broad, merits-based assessment of all the circumstances, including the public and private interests, and decide whether the later proceeding misuses the court process.

The burden is on the party alleging abuse, but oppression may be inherent in requiring a defendant to face a second claim where one should have sufficed; separate harassment need not be proved. An appellate court generally intervenes only for material error or an unsustainable conclusion.

The claimant brought a race discrimination claim after an admitted workplace insult. The first claim was dismissed as out of time after the tribunal refused to extend time. She then issued a second claim, repeating the earlier allegations and adding complaints concerning the respondent’s later treatment of the incident, workplace arrangements and cultural-awareness training.

The second tribunal struck out the repeated allegations for cause of action estoppel and the new complaints as an abuse of process. The Employment Appeal Tribunal, HHJ Burke QC, upheld that decision in UKEAT033712DM. The central issues before the Court of Appeal were whether the new complaints were abusive and whether cause of action estoppel applied.

The Court of Appeal, in a judgment delivered by the Master of the Rolls with Lord Justice Sullivan and Lady Justice Sharp agreeing, unanimously dismissed the appeal.

1. Abuse of process. The governing principle was the rule in Henderson v Henderson (1843) 3 Hare 100, as authoritatively explained in Johnson v Gore Wood [2002] 2 AC 1. The fact that a claim could have been raised in earlier proceedings does not itself make a later claim abusive. The court must make a broad, merits-based assessment of all the circumstances, including finality, avoidance of repeated vexation, efficiency, economy, and the public and private interests involved.
2. Burden and appellate review. The respondent bore the burden of clearly establishing abuse. The question was one of judgment, not discretion, although ultimately there was only one correct answer. Applying Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260, [2008] 1 WLR 748, appellate intervention was generally limited to material omissions, immaterial considerations, an error of principle, or a conclusion that was not open to the tribunal.
3. Application. EJ Grewal was entitled to consider that the claimant knew of the new matters before issuing the first claim, had legal advice, and understood the limitation issue. The meeting of 7 June 2011 preceded the first claim by three days. In the absence of evidence supporting the claimant’s later explanation, the tribunal was entitled to infer that she did not then regard the new matters as acts of race discrimination and introduced them later only to revive the dismissed claim.
4. Oppression and final order. The absence of evidence that the second claim was issued to harass or oppress the respondent did not prevent a finding of abuse. Requiring a defendant to face two claims where one could and should have sufficed may itself be oppressive. Since the appeal was dismissed on abuse-of-process grounds, it was unnecessary to decide the separate cause-of-action-estoppel issue.

• Court of Appeal (Civil Division) — The appeal was dismissed on 24 June 2014. The court upheld the striking out of the second claim as an abuse of process and did not determine the cause-of-action-estoppel issue.
• Employment Appeal Tribunal — HHJ Burke QC, in a judgment handed down on 6 September 2013, upheld EJ Grewal’s decision.
• Employment Tribunal — EJ Potter refused an amendment to the first claim and dismissed it as out of time. EJ Grewal later struck out the second claim, applying cause of action estoppel to the repeated allegations and abuse of process to the new complaints.