Ashmore v British Coal Corporation

JurisdictionEngland & Wales
Judgment Date27 February 1990
Judgment citation (vLex)[1990] EWCA Civ J0227-6
Docket Number90/0176
CourtCourt of Appeal (Civil Division)
Date27 February 1990
Ann Ashmore
British Coal Corporation (otherwise known as National Coal Board)

[1990] EWCA Civ J0227-6


The Master of the Rolls

(Lord Donaldson)

Lord Justice Stuart-Smith

Lord Justice Farquharson






Royal Courts of Justice

MR. N. R. J. BAKER Q.C. and MISS K. M. THIRLWALL (instructed by Messrs. Hopkin & Sons, Mansfield, Nottingham) appeared for the Appellant.

MR. P. H. GOLDSMITH Q.C. and MR. N. E. UNDERHILL (instructed by the Legal Department, British Coal Corporation) appeared for the Respondents.


This appeal raises important questions as to how courts and tribunals should deal with large numbers of cases that raise similar factual issues.


Between July and December 1982 about 2,000 applications were made by women canteen workers employed in various parts of the country by the National Coal Board under section 1(2)(a) Equal Pay Act 1970 as amended (the Act). Proceedings were issued in the Birmingham Industrial Tribunal. The claimants alleged that they were doing like work with certain male comparators and that they were employed on terms that were less favourable than those under which the men were employed.


One such claimant is Ann Ashmore, the appellant, who was employed at the Gedley Colliery in Nottinghamshire. At that time all claimants were members of the National Union of Mineworkers (N.U.M.) and they were represented by the union's solicitors, Milners, Curry and Gaskell. It was necessary for the industrial tribunal and the parties to devise some means of dealing with all these cases, which eventually dwindled to about 1,500, which avoided the necessity of trying each one separately.


In August 1984 the cases were transferred to London and assigned to Mr. Heggs, Chairman of Industrial Tribunals. In October of that year there occurred the first of a number of interlocutory hearings. The tribunal ordered that representative sample cases should be chosen for trial. In effect the union were to choose six of their best cases and the Board six cases (subsequently increased to eight).


In giving the tribunal's decision Mr. Heggs said:

"These would not be test cases, the decision on any of the cases would not be binding upon the applicants or the respondents in any other cases but the decision might well assist in the resolution of the remaining cases by agreement."


And a little later he said:

"The tribunal must determine each case upon its individual merits but in doing so must not disregard the interests of justice to the applicants as a whole and to the respondents. Care must be exercised to ensure that the course of the proceedings is not manipulated by any party for tactical advantage. Although a decision on sample cases is not binding upon the respondents or applicants in other cases it will undoubtedly have persuasive effect when the cases of other applicants fall to be considered.…if a multiplicity of appeals is to be avoided it is important that most of the triable issues arising should be determined in the decision covering the sample selected."


During 1985 the claimants named seven comparators and the 14 sample cases were chosen; full particulars were given of the work by each comparator and the sample claimants. There were further interlocutory hearings involving directions as to pleadings, discovery and selection of cases. All claims other than the 14 sample cases were stayed pending determination of those cases.


By 1986, if not earlier, a number of claimants had left the N.U.M. and become members of the Union of Democratic Mineworkers (the U.D.M.); these included the appellant and Mrs Barker, who was the only one among the 14 sample cases who had become a member of that trade union. On 3rd February 1986 Hopkin & Son, the appellant's solicitors, notified the respondent that they had been instructed to act on behalf of the U.D.M. claimants. On 7th May, the claimants abandoned all other comparators save one, Mr. Tilstone.


The substantive hearing of the sample cases took place between 7th and 21st July 1986 under the name Thomas v. National Coal Board; leading counsel appeared for those claimants who were members of the N.U.M. and the Board; Mrs Barker was separately represented by junior counsel. All the applications were dismissed. The basis of the decision was two-fold: first, that none of the sample claimants were employed on like work with Mr. Tilstone, he being employed on night work and alone, unlike the claimants, and so they failed to satisfy section 1(2)(a) of the Act; and, secondly, that the Board had established a defence under section 1(3), namely that the variation in rate of pay between the claimants and Mr. Tilstone's contract was "genuinely due to a material factor which is not the difference of sex."


All 14 claimants appealed to the Employment Appeal Tribunal. The appeals were dismissed on 15th May 1987. Mrs Barker alone appealed to this court, but she withdrew her appeal in early September 1987. Meanwhile, the present appellant had made several attempts to have the stay on her claim removed and the case listed for hearing. These applications had been adjourned pending the outcome of the appeal procedure. In September 1987, after the withdrawal of Mrs Barker's appeal, she applied again. The respondents thereupon applied under the provisions of the Industrial Tribunals (Rules of Procedure) Regulations 1985 to have her claim struck out on the grounds that it was frivolous and vexatious. Rule 12(2) provides:

"A tribunal may, if it thinks fit—

(e)…at any stage of the proceedings order to be struck out…any originating application…on the grounds that it is scandalous, frivolous or vexatious."


The industrial tribunal acceded to the respondent's application and struck out the claim on the grounds that it was vexatious. The argument advanced on behalf of the appellant to the tribunal was that, unlike the claimants in the 14 sample cases, Mrs Ashmore was engaged in like work, because she had since 1984 been engaged in night work and she worked alone. It was argued that the tribunal's decision in the Thomas case on the Board's defence under section 1(3) of the Act was obiter, and that, in the absence of res judicata or an agreement to be bound by the findings of fact, the appellant had an absolute right to relitigate that issue before a different tribunal. It does not appear that Mr. Todd, the appellant's solicitor, who argued the case before the tribunal, suggested that there was any further evidence to be adduced on this point. The tribunal were plainly correct to reject the submission that the decision on the second ground was obiter; and Mr. Baker Q.C. does not argue to the contrary. The chairman accepted that the decision in Thomas was not technically binding on the appellant but he held that it was an abuse of the process to relitigate a factual issue under section 1(3) of the Act which had been fully litigated in fact if not in form on behalf of all applicants and that, if the appellant were allowed to proceed, her claim would be bound to fail. The appellant's appeal to the Employment Appeal Tribunal was dismissed on 10th February 1989. She now appeals to this court pursuant to leave granted by Balcombe L.J. on 6th June 1989.


The expression frivolous and vexatious in rule 12(2)(e) includes applications which are an abuse of process: see Marler v. Robinson (1974) 1 C.R. 72 per Sir Hugh Griffiths at page 76H. Whether or not an application should be struck out on this ground is a matter for the discretion of the tribunal, which can only be challenged on the basis that the tribunal has misdirected itself in law or reached a decision to which no reasonable tribunal could come: Medallion Holidays Limited v. Birch (1985) 1 C.R. 578.


Mr. Baker Q.C. submits that the tribunal did err in law. He submits that, unless she is estopped by res judicata, issue estoppel or agreement to be bound by the findings in the Thomascase, and it is common ground that she is not, the appellant has an absolute right to have her claim litigated. He argues that, because the appellant is not estopped for any of those reasons, her claim cannot be frivolous, vexatious or an abuse of process. I do not agree. A litigant has a right to have his claim litigated, provided it is not frivolous, vexatious or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material. In Hunter v. Chief Constable of West Midlands (1982) A.C. 529 at page 536 Lord Diplock, with whose speech the rest of the House agreed, said:

"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."


In that case the House of Lords held that it was an...

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