Doryce Yovonie v East Sussex Healthcare NHS Trust

The Claimant sought permission to amend a High Court claim alleging underpayment, discrimination and related causes of action after earlier Employment Tribunal and appellate proceedings had been determined against her and after a previous High Court strike-out order. The court held that the earlier order of Judge Bidder QC struck out "the Claim" so there was no extant claim to amend. In any event the proposed amended claim would be an abuse of process and would be met by res judicata / issue estoppel and by the absence of High Court jurisdiction to hear employment discrimination claims under the Equality Act 2010 (sections 113(1) and 120(1)).

The court further held that the claimant’s latest allegations of fraud were not a proper basis to permit a second bite at the cherry: Takhar v Gracefield Developments Ltd was considered but the court exercised its discretion against allowing re-litigation. The application for permission to amend was dismissed and, on the defendant’s application, an Extended Civil Restraint Order was made for two years to restrain further totally without merit proceedings.

Background and procedural posture:

• The claimant was employed by the defendant 2005–2014 and alleged she had been underpaid on both the Whitley Council and Agenda for Change pay scales. She brought claims in the Employment Tribunal (ET) which were dismissed on 15 June 2015; an appeal to the EAT was dismissed on 25 February 2016; an application for permission to appeal to the Court of Appeal was refused on 5 April 2017; permission to apply for judicial review was refused on 14 August 2017; the claimant then issued proceedings in the High Court in January 2018 which were struck out by Judge Bidder QC on 27 July 2018 and an order for costs was made.

Nature of the application: The claimant applied for permission to amend her (High Court) claim to assert discrimination under the Equality Act 2010 and related remedies and interim relief, relying also on newly articulated allegations of fraud and on concealment to attempt to avoid limitation.

Issues framed by the court:

• Whether there existed an extant claim which could be amended following Judge Bidder’s strike-out order.
• If there were an extant claim, whether amendment should be permitted or whether it would be an abuse of process (res judicata / Henderson v Henderson), time-barred, or otherwise impermissible because the High Court lacks jurisdiction to entertain employment discrimination claims under the Equality Act 2010.
• Whether allegations of fraud nonetheless warranted permitting re-litigation (with Takhar v Gracefield Developments Ltd considered).
• Whether a Civil Restraint Order was appropriate because the claimant had persistently issued totally without merit applications.

Court’s reasoning and conclusions:

• The court concluded that Judge Bidder’s order struck out "the Claim" (the claim form and particulars) so there was no extant claim to amend. Accordingly permission to amend could not be granted.
• Even if there were an extant claim, the proposed amendments would be an abuse of process because the matters were the same or substantially the same as those determined in the ET and in subsequent proceedings; the rule in Henderson v Henderson applied. The claimant’s new allegations were largely based on documents disclosed years earlier, and she had not shown that relevant facts had been deliberately concealed in a manner that would, as a matter of discretion, justify reopening the issues.
• The court held that the High Court has no jurisdiction to entertain employment discrimination claims under the Equality Act 2010 (see sections 113(1) and 120(1)) and that point could not be cured by agreement between the parties.
• Takhar v Gracefield Developments Ltd was considered: although Takhar recognises that allegations of fraud may justify setting aside or permitting a new claim in some circumstances, the court exercised its discretion against the claimant here because the alleged fraud was far‑fetched, central evidence had been available earlier, and allowing re-litigation would be disproportionate and disruptive.
• The claimant’s applications were dismissed. The court found the applications totally without merit and, after considering the history and repeated proceedings, made an Extended Civil Restraint Order for two years to restrain further totally without merit applications concerning the same subject matter.

The Claimant’s applications are dismissed. The court found there was no extant claim to amend following Judge Bidder QC’s strike-out order and, alternatively, that any proposed amendment would be an abuse of process and would be met by res judicata/issue estoppel or be outside the High Court’s jurisdiction under the Equality Act 2010. An application to set aside was considered by reference to Takhar but the court exercised its discretion against allowing re-litigation. On the defendant’s application the court made an Extended Civil Restraint Order for two years to prevent further totally without merit proceedings relating to these matters.

Employment Tribunal: claim dismissed on 15 June 2015. Employment Appeal Tribunal: appeal dismissed on 25 February 2016 (Judge Eady QC). Application for permission to appeal to the Court of Appeal refused on 5 April 2017 (Burnett LJ). Permission to apply for judicial review refused on 14 August 2017 (Warby J). High Court proceedings were issued 15 January 2018; the defendant obtained strike-out of the High Court claim and a costs order on 27 July 2018 (Judge Bidder QC). This judgment (Bourne J) dated 20 October 2023 disposes of the claimant’s application to amend and grants an Extended Civil Restraint Order.