Dr Rohit Sharma v University Hospitals Derby & Anor

A statutory claim within the exclusive jurisdiction of the Employment Tribunal does not prevent the Civil Courts from determining a distinct contractual or tortious claim arising from the same facts, provided it does not fall within the Johnson exclusion area. That principle may support an injunction restraining disciplinary conduct before dismissal.

However, a claimant may not use fresh High Court proceedings to duplicate County Court proceedings, challenge interlocutory orders by collateral attack, or obtain relief which should have been sought in the existing proceedings. The court applied the categories of abuse of process separately and struck out the duplicative claim. The interim injunction was refused because there was no serious issue to be tried, damages were adequate, and the balance of convenience favoured continuation of the disciplinary process.

The claimant, a consultant ophthalmologist, was involved in simultaneous Employment Tribunal, County Court and High Court proceedings concerning disciplinary action under the Maintaining High Professional Standards in the Modern NHS policy.

In the County Court he pleaded breach of express and implied contractual duties of mutual trust and confidence and sought an injunction restraining implementation of a proposed verbal warning pending determination of his Tribunal claims concerning whistleblowing detriments and discrimination victimisation. HHJ Owen held that the County Court had jurisdiction and refused interim relief.

The claimant then issued the High Court proceedings, seeking substantially the same injunction, relief relating to the County Court orders, disclosure, removal of the case manager and other orders. The issues were whether the High Court had jurisdiction, whether the claim was abusive or barred by issue estoppel, and whether interim relief should be granted.

1. Jurisdiction. The High Court has jurisdiction under Senior Courts Act 1981, s 37, to grant injunctions. The exclusive jurisdiction of the Employment Tribunal over statutory whistleblowing and victimisation claims does not remove the Civil Courts’ jurisdiction over a distinct contractual claim arising from the same facts. A claim alleging breach of the contractual term of mutual trust and confidence could in principle support an injunction before dismissal.
2. The Johnson exclusion area concerns common-law claims for damages arising from dismissal itself. It did not apply because the claim was for injunctive relief concerning pre-dismissal disciplinary conduct. The contractual claim was therefore not duplicative merely because the same facts were relevant to Tribunal proceedings.
3. Issue estoppel and abuse of process. The refusal of an interim injunction is provisional and does not finally determine the issue for the purposes of issue estoppel. The claimant could have sought relief in the County Court, applied under Civil Procedure Rules 1998, r 3.1(7), or appealed. The High Court claim nevertheless constituted a collateral attack on HHJ Owen’s orders and a Henderson abuse.
4. The court applied a broad, merits-based assessment. The High Court claim substantially duplicated the County Court proceedings, created oppressive and potentially inconsistent parallel litigation, and sought additional relief which was misconceived or unavailable. Abuse categories could not be merged into an undifferentiated general allegation, but either the collateral-attack analysis or the Henderson analysis justified strike-out.
5. Interim injunction. Applying American Cyanamid, there was no serious issue to be tried. The MHPS process was practically complete, the proposed verbal warning was subject to an internal appeal, and the court should not micro-manage disciplinary procedures. Damages were adequate and the balance of convenience favoured maintaining the status quo.
6. The High Court claim was struck out under CPR 3.4(2)(b), alternatively CPR 3.4(2)(a), and the injunction application was refused. Permission to appeal was refused. The claimant was ordered to pay the defendant’s costs of £14,320.50 within three months.

The judgment was a first-instance decision of the High Court. It records that HHJ Owen had previously held that the County Court had jurisdiction and had refused interim injunctive relief. The High Court struck out the later duplicative proceedings and refused permission to appeal.