Agbenowossi-Koffi v Donvand Ltd

The Court of Appeal dismissed the appellant's appeal against the Employment Appeal Tribunal's upholding of a tribunal judge's order striking out a second race discrimination claim as an abuse of process. The central legal principles applied were the Henderson v Henderson abuse of process doctrine as explained in Johnson v Gore Wood and the ordinary rules on cause of action estoppel. The court accepted that a tribunal judge may infer from the omissions in a claimant's earlier claim form and the surrounding procedural context that the claimant did not regard certain matters as acts of discrimination and was therefore entitled to conclude that the later repetition of those matters amounted to an abuse of process.

The court emphasised that the burden rests on the defendant to show abuse clearly, that the judge adopted the broad merits-based approach required by Johnson, and that the judge's factual assessment was open to her on the evidence. Because the Court of Appeal concluded the strike out for abuse of process was sustainable, it did not need to decide whether cause of action estoppel independently justified striking out the first part of the second claim.

Background and parties: The claimant, employed as a client services executive and of Black African origin, alleged that in November 2009 a supervisor made a racist remark which she characterised as describing her as a 'monkey dressed in silk'. She developed psychiatric illness and subsequently brought proceedings. The respondent admitted the incident but relied on limitation defences.

Procedural history: The claimant presented an initial ET1 in June 2011. At a pre-hearing review (PHR) on 2 September 2011 Judge Potter refused permission to amend the claim to plead a continuing discriminatory course of conduct under Equality Act 2010 s123 and refused to extend time on a just and equitable basis. That decision was not appealed successfully. A second ET1 was issued on 6 September 2011 repeating earlier allegations and adding "new complaints" said to establish conduct extending over a period. At a PHR EJ Grewal struck out the second claim, holding that (i) the complaints in the first part of the second ET1 were barred by cause of action estoppel and (ii) the additional complaints were an abuse of process under Henderson v Henderson as explained in Johnson v Gore Wood. The EAT (HHJ Burke QC) upheld EJ Grewal. The claimant appealed to the Court of Appeal.

Nature of the claim and relief sought: The claim was for race discrimination/harassment. The claimant sought to rely either on an extension of time or on the continuing act principle (Equality Act 2010 s123) so that the claim would be in time.

Issues framed: (i) whether EJ Grewal was right to strike out the second claim as an abuse of process under Henderson v Henderson/Johnson v Gore Wood; (ii) whether the first part of the second claim was barred by cause of action estoppel.

Court's reasoning and conclusion: The Court of Appeal analysed whether the judge had properly applied the Johnson v Gore Wood principles, emphasising that the judge must take a broad, merits-based approach and that the onus to establish abuse rests on the defendant. The judge had been entitled to take into account that the claimant and her solicitors were aware of the allegedly discriminatory acts before the first claim was drafted, that the meeting alleged to constitute a continuing act occurred three days before the first ET1, and that there was no evidence from the claimant to support her later explanation. The judge was entitled to infer that the claimant had not regarded the additional matters as discriminatory at the time and that they were being raised only to resurrect an out-of-time claim. The court held that these findings were open on the evidence and that the striking out for abuse of process was therefore sustainable. Because that conclusion disposed of the appeal, the court did not decide the separate estoppel point. The appeal was dismissed.

The appeal was dismissed. The Court of Appeal held that the Employment Judge was entitled to find that the claimant had not regarded the additional matters as acts of race discrimination when the first claim was presented and that the bringing of those matters in a second claim amounted to an abuse of process under the Henderson v Henderson principle as explained in Johnson v Gore Wood. That factual and evaluative conclusion was open to the judge on the evidence, and therefore sustainable on appeal. Because the abuse finding disposed of the case, the court did not determine whether cause of action estoppel also applied.

Employment Tribunal (pre-hearing review by EJ Potter) dismissed claim for want of jurisdiction at PHR (2 September 2011). Appeal to Employment Appeal Tribunal rejected at sift and on oral hearing under the EAT Rules; EAT judgment of HHJ Burke QC handed down 6 September 2013 (UKEAT033712DM). Appeal to Court of Appeal: permission granted by Rimer LJ; appeal dismissed [2014] EWCA Civ 855.