Doryce Yovonie v East Sussex Healthcare NHS Trust

A claim struck out in its entirety cannot be amended because no claim remains. Later proceedings may also be abusive where they raise matters that could have been advanced earlier. The High Court lacks jurisdiction over employment discrimination claims under the Equality Act 2010, subject to judicial review. Alleged fraud does not automatically justify reopening concluded proceedings. Persistent applications that are totally without merit may justify an extended civil restraint order.

The claimant’s employment, equal pay and related claims before the Employment Tribunal were dismissed. Subsequent appeals and related judicial review proceedings failed. A later High Court claim was struck out in its entirety by Judge Bidder QC, with costs ordered.

The claimant applied to amend that claim to advance allegations concerning underpayment, fraud, race discrimination and post-employment conduct. The defendant opposed the application and sought a civil restraint order. The issues were whether anything remained capable of amendment, whether the proposed case was abusive or outside the High Court’s jurisdiction, and whether an extended civil restraint order was justified.

1. Amendment. The applications were dismissed. The earlier order striking out “the Claim” struck out the Claim Form and particulars of claim. No claim therefore remained capable of amendment. The interlocutory nature of the earlier application did not alter that conclusion.
2. Abuse of process. Alternatively, the proposed claim was abusive under Henderson v Henderson (1843) 3 Hare 100. Subject to any special approach to fraud, matters which could have been raised earlier could not be litigated again. The claimant’s allegations substantially repeated matters already determined or previously available to her.
3. Jurisdiction. The proposed claim was framed as employment discrimination, harassment or victimisation under the Equality Act 2010. By sections 113(1) and 120(1), the High Court had no jurisdiction to entertain it, apart from judicial review. Jurisdiction could not be created by concession or omission.
4. Fraud. The court considered Takhar v Gracefield Developments Ltd and others [2019] UKSC 13; [2020] A.C. 450. The court retained a discretion to refuse reopening where the fraud allegation had already been raised or evidence had deliberately not been investigated or used. The claimant’s case was a second attempt based on further research of documents disclosed years earlier, and the court would have refused it in any event.
5. Civil restraint order. The applications were totally without merit. A general order was unnecessary, but an extended civil restraint order was justified by persistent totally without merit applications concerning the same employment dispute. It was made for two years.

First-instance decision. The judgment records earlier Employment Tribunal, Employment Appeal Tribunal, Court of Appeal and Administrative Court proceedings, but this was not an appeal from those decisions.