Srivatsa v Secretary of State for Health & Anor

Withdrawal of an Employment Tribunal claim does not by itself establish abandonment or concede the merits. The court must assess the claimant’s intention when withdrawing, including the reasons for withdrawal and the surrounding circumstances. Economic pressure, jurisdictional or procedural difficulties, an objection to dismissal, and a request to revive the claim may show that the withdrawal was a discontinuance, not an abandonment. A later dismissal under the Tribunal rules concerns the Tribunal proceedings and does not itself determine the effect on separate High Court proceedings. Cause-of-action and issue estoppel remain subject to the broader rule against abusive litigation. Where no merits adjudication occurred and the claimant did not intend to abandon the claim, the later High Court action is not barred.

The appellant, a general practitioner, brought Employment Tribunal proceedings against former employers alleging discrimination, breach of contract, detriment for protected disclosures, constructive unfair dismissal and arrears of pay. He withdrew those proceedings in 2011, citing economic and procedural difficulties, and later began a High Court action based on substantially the same facts. The Employment Tribunal subsequently dismissed the withdrawn claim. The Employment Appeal Tribunal reinstated that dismissal after setting aside a later revocation.

The High Court, in [2016] EWHC 2916 (QB), held that the withdrawal amounted to abandonment and that res judicata and issue estoppel barred the High Court action. The central issue was whether the withdrawal and subsequent dismissal precluded the separate High Court claim.

Appeal allowed. The appellant’s High Court claim was not barred by issue estoppel, cause-of-action estoppel or the withdrawal of his Employment Tribunal proceedings.

1. Effect of the Employment Appeal Tribunal decision. The Employment Appeal Tribunal had concentrated on whether the Employment Tribunal claim should be dismissed. Slade J expressly left the effect of that dismissal on the High Court proceedings to the High Court. Her reference to the withdrawn claim therefore concerned the Employment Tribunal claim, not the underlying complaints in every forum. Further, any conclusion that the withdrawal abandoned the underlying complaints was unnecessary to the Employment Appeal Tribunal’s decision, which rested on independent procedural errors. It could not create an issue estoppel.
2. Applicable principles. The court applied the approach in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, [2013] UKSC 46, that res judicata and abuse of process are distinct but overlapping principles, and that the usual absolute character of estoppel is qualified where the conduct is not abusive. Issue estoppel requires an issue to have been a necessary ingredient of a cause of action and to have been litigated and decided, as explained through Arnold v National Westminster Bank plc [1991] 2 AC 93.
3. Withdrawal and intention. The authorities, including Khan v Heywood & Middleton PCT, [2006] EWCA Civ 1087, Sajid v Sussex Muslim Society, [2001] EWCA Civ 1684, Ako v Rothschild Asset Management Ltd, [2002] EWCA Civ 236, and Nayif v The High Commission of Brunei Darussalam, [2014] EWCA Civ 1521, require attention to the circumstances and the claimant’s intention at withdrawal. The critical question is whether the claimant intended to abandon the claim or merely discontinue it. The more formal approach in Lennon v Birmingham CC, [2001] EWCA Civ 435, had been overtaken by that contextual approach. Staffordshire CC v Barber, [1996] ICR 379, was distinguishable on its facts and its assumption that cause-of-action estoppel was absolute was qualified by later Supreme Court authority.
4. Tribunal rules. Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, rule 25(3) and (4) concerned only the withdrawn Employment Tribunal proceedings. They did not determine the consequences in separate High Court proceedings, and Employment Tribunal rules could not prescribe those consequences. The later Employment Tribunals (Constitution and Rules Procedure) Regulations 2013 required an express reservation in circumstances where a claimant wished to bring a further claim, but that requirement did not apply at the time of this withdrawal.
5. Application. The appellant withdrew for economic reasons, faced technical, procedural and jurisdictional objections, sought reactivation of the claim and objected to its dismissal. Those circumstances did not show an intention to concede the merits. The withdrawal was in substance a discontinuance. The appellant was therefore entitled to continue the High Court action.

1. Court of Appeal (Civil Division): Allowed the appeal and held that the High Court claim was not precluded.
2. High Court, Queen’s Bench Division: In [2016] EWHC 2916 (QB), Nicol J held that the withdrawal amounted to abandonment and that res judicata and issue estoppel barred continuation of the High Court claim.
3. Employment Appeal Tribunal: Slade J allowed the respondents’ appeal in February 2016, setting aside the revocation of the Employment Tribunal dismissal and reinstating that dismissal.
4. Employment Tribunal: The claim was withdrawn in 2011 and later dismissed by order dated 13 October 2014. A subsequent revocation was set aside on appeal.