Alexander Pady & Ors v HMRC & Ors

The Employment Appeal Tribunal dismissed the claimants' appeal against the Bristol Employment Tribunal's decision to strike out multiple direct age discrimination claims under rule 37(1) of schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 as an abuse of process. The claims challenged the cap and taper provisions of the Civil Service Compensation Scheme (CSCS) under section 13 Equality Act 2010 and the respondents had a common defence of objective justification. The ET found that the claims were subject to a Presidential Case Management Order (PCMO), that a preliminary hearing using sample cases (the Newby proceedings) had been convened to determine justification, and that the FDA claimants had notice and opportunity to participate but did not seek to be included.

The tribunal concluded that re‑litigation of the justification issue in these circumstances would be an abuse of process because it would undermine purposeful case management, risk repetitive litigation and bring the administration of justice into disrepute. The ET considered the putative fresh expert evidence and found it could have been obtained or flagged earlier and would not entirely change the aspect of the case; accordingly the strike‑out was a justified exercise of the exceptional jurisdiction to prevent abuse.

Background and parties. The appeals were brought by 20 members of the FDA union (the FDA claimants) against several central government departments (including HMRC, the Foreign Commonwealth and Development Office and the Home Office). The claimants alleged direct age discrimination under section 13 of the Equality Act 2010 arising from the cap and taper provisions of the Civil Service Compensation Scheme (CSCS) in redundancy payments.

Procedural history and posture. Numerous similar CSCS claims were managed under a Presidential Case Management Order made 30 March 2020 (the PCMO). The PCMO led to combined case management and the selection of sample/lead cases to determine the common issue of objective justification by way of a public preliminary hearing (the Newby sample hearing, heard in December 2021, decision sent out 17 January 2022). The Doyle tribunal dismissed the sample claims on justification. The FDA claimants had issued their claims in mid‑2021, were aware of the PCMO and the planned preliminary hearing, and sent a representative to observe the Newby hearing, but did not apply to participate as sample claimants or to adduce evidence at that hearing.

Relief sought and issues for the ET/EAT. The FDA claimants sought to continue their individual claims challenging the same scheme provisions and relied on expert evidence served later. The primary issues for the tribunal and the EAT were: (i) whether continued pursuit of the FDA claims after the Newby decision amounted to an abuse of process meriting strike‑out under rule 37(1); and (ii) whether any fresh evidence (an expert report) warranted re‑opening the justification issue.

Court’s reasoning and disposition.

• The EAT reviewed and applied established authority on abuse of process, including the twin public interests of finality and avoiding being twice vexed, and the guidance that relitigation in civil multiple litigation may be abusive in appropriate circumstances (cases such as Ashmore, Johnson v Gore Wood, Hunter, Allsop were considered).
• The tribunal’s factual findings (the FDA claimants had notice of the PCMO and of the December 2021 preliminary hearing, had opportunities to apply to participate, and had practical windows to make procedural interventions) were upheld as permissible and pivotal to the abuse analysis.
• The ET properly assessed the later expert material and concluded it was not the kind of fresh evidence that would wholly change the aspect of the case and that it could, with reasonable diligence, have been obtained or flagged before the Newby hearing.
• On the facts, allowing re‑litigation would have undermined case management and been manifestly unfair to respondents and risked bringing the administration of justice into disrepute; strike‑out was therefore justified. The EAT dismissed the appeal.

Appeal dismissed. The EAT held that the Bristol Employment Tribunal correctly applied established principles on abuse of process and case management in large multiples: because the FDA claimants were subject to the PCMO, had notice and realistic opportunities to participate in the Newby sample hearing, and the expert evidence relied upon could (and should) have been obtained or flagged earlier and would not entirely change the aspect of the case, permitting re‑litigation would have been an abuse of process, manifestly unfair to respondents and damaging to the administration of justice; striking out under rule 37(1) was therefore lawful and appropriate.

Appeal to the Employment Appeal Tribunal from a decision of the Bristol Employment Tribunal (Regional Employment Judge Pirani) striking out the claimants' claims as an abuse of process following the Doyle ET's preliminary hearing decision in the Newby sample cases (preliminary hearing heard December 2021; Newby decision sent out 17 January 2022). The Bristol ET struck out the FDA claims on 16 November 2022 (decision sent out 23 December 2022); this appeal was heard before the EAT and dismissed on 20 May 2024.