Barber and Lennon v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE BUXTON,LORD JUSTICE MANTELL |
| Judgment Date | 27 March 2001 |
| Neutral Citation | [2001] EWCA Civ 435 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A3/2000/0324 |
| Date | 27 March 2001 |
[2001] EWCA Civ 435
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(His Honour Judge Griffiths-Jones)
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
Lord Justice Mantell
Lord Justice Buxton
A3/2000/0324
MR S HUNJAN (Instructed by Bradshaws, 3 Swann Courtyard, Coventry Road, Yardley, Birmingham B26 1BU) appeared on behalf of the Appellant
MR A GLENNIE (Instructed by Birmingham City Council, Legal Services, Ingleby House, 11–14 Cannon Street, Birmingham B2 5EN) appeared on behalf of the Respondent
Tuesday 27th March 2001
Buxton LJ will give the first judgment.
This is an appeal from a decision of His Honour Judge Griffiths-Jones in the Birmingham County Court in which he dismissed, on grounds of res judicata, that is to say cause of action or issue estoppel, a claim brought in that court by Mrs Helen Lennon against her employers, the Birmingham City Council.
The matter has a long history. Mrs Lennon's employment commenced in February 1984. Over a substantial period of time she complains that she was subjected to offensive and intimidating behaviour, either by her employers or by persons for whom her employers were responsible, within the employment relationship; with the result that, amongst other things, she has suffered injury to her health.
On 28th May 1997 she issued proceedings in what was then known as the Industrial Tribunal. The complaint that she then made was described in the following terms:
"Harassment/Discrimination
Bullying
Vicarious liability of employer
Health and Safety Duty of Care."
That application was supported by a substantial document, described as Statement of Case, at the end of which it was asserted that, because of the treatment that Mrs Lennon had received whence working for Birmingham, she had suffered a stress related illness. I have to say that it is not wholly clear to me under what part of the then jurisdiction of the Industrial Tribunal this complaint was brought; but, for reasons that will become apparent, any such doubts do not affect the outcome of this appeal.
The matter was to some extent clarified when the employers replied to the complaint, saying that they intended to resist the application and expressing themselves in the following terms:
"The Respondent denies that it has discriminated and/or harassed the Applicant on the grounds of sex. The Respondent denies that this Tribunal has jurisdiction to deal with any other purported claim being brought by the applicant."
The employer went on to say that the detailed complaints were being investigated, and it asked that the matter should not be proceed to a hearing until those internal inquiries had been completed.
On being made aware of that position taken by the employer, Mrs Lennon's union, who were then acting for her in this matter, wrote to the Industrial Tribunal in response to letters that they had sent expressing some concern about the progress of the matter. The union said this, inter alia:
"(1)The application does not allege only discrimination/harassment on the grounds of sex, it includes bullying etc."
There was then a lengthy delay whilst the internal investigation and, as it would appear, discussions and negotiations with Mrs Lennon herself proceeded.
On 27th February 1998, that is to say some nine months after the complaint had been filed, the union wrote to the Secretary of Industrial Tribunals, saying that the investigation into her grievance had been concluded but that one element required further investigation. That was a complaint of sexual harassment. That was in February 1998. Matters did not progress. Very properly, the tribunal expressed concern about the delay and eventually arranged that there should be a directions hearing. That was to be held on 27th November 1998. Before that hearing took place Mrs Lennon's solicitors, who had taken over the conduct of the matter from her union, wrote to the Secretary of Tribunals on the 25th November 1998 in the following terms, inter alia:
"We have recently spoken to our client at length in relation to this matter and she has instructed us that she wishes to withdraw the Application to the Industrial Tribunal.
We should accordingly be grateful if the claim could be marked withdrawn and the Interlocutory/Directions Hearing listed for Friday 27 November 1998 could be vacated."
In response to that the tribunal or the Chairman of the tribunal made the following order or decision on 30th November:
"The application is dismissed on withdrawal by the applicant."
It is important for understanding the issues in this appeal to note that it was indeed the decision of the tribunal that the application should be dismissed.
On 5th March 1999, that is to say some five months after the dismissal of the Employment Tribunal proceedings, Mrs Lennon, acting through the same solicitors as had advised her in connection with the Employment Tribunal matter, brought the present claim in the Birmingham County Court. That was substantially a claim in negligence or in breach of contract. The nature of it can be seen from three paragraphs near the start of the particulars of claim, paragraphs 3–6, which read as follows:
"3.Prior to in or about January 1996 the said other servants or agents of the Defendants and the said Geer"
I interpose, he was a manager in Mrs Lennon's area of activity,
"habitually behaved towards the Plaintiff in an abusive and/or unpleasant and/or offensive and/or intimidatory manner.
4.By reason of the said behaviour the Plaintiff suffered physical and mental ill health and was caused thereby to be absent form her employment."
5.In or about January 1996 the Plaintiff was subjected to abusive and/or unpleasant and/or offensive and/or intimidatory behaviour by the said other servants or agents of the Defendants and the said Geer."
6.The said behaviour caused the Plaintiff to suffer physical and mental ill health and, by reason of it, to be absent from her employment between the 19 and 26 days of January 1996."
That absence was described in the pleadings as "the first period of absence". It was alleged that that illness and that absence was caused by negligence on the part of the defendants; and very lengthy particulars of negligence are given reaching to some nearly 30 paragraphs.
The claim then continues in respect of repeating such behaviour on the part of the City Council, or, rather, those for whom it was responsible, alleging further incidents leading to further periods of absence, the particulars of complaint in respect of the latter periods being substantially the same as those in respect of the first period.
Faced with this claim, the defendant City Council made an application to strike the claim out. That was described in their application in the following terms:
"The claim be struck out pursuant to CPR 3.4(2)(b) as an abuse of process"
and then particulars were given.
"The claimant included a claim for stress related illness in industrial tribunal proceedings which proceedings were based upon the same facts as the present case and have been dismissed. As a matter of law the claimant is thereby estopped from bringing the present claim."
That matter was considered by Deputy District Judge Turner. He held that the county court proceedings did indeed substantially repeat those in the Employment Tribunal. But he refused to strike out the claim on grounds of res judicata because he saw the letter of the Employment Tribunal of 30th November 1998, which I have just read, not as a decision on the part of the tribunal such as would be necessary to found a claim in of res judicata, but as merely, as he put it, an acceptance of a wish to discontinue those proceedings. It is perhaps relevant to note that the matter was, as I have said, argued before him on the basis of res judicata.
The defendant appealed to the Circuit Judge, saying that the case should have been struck out on grounds of issue estoppel once the judge had made the finding that the claim repeated the proceedings in the Employment Tribunal. The claimant in resisting that appeal, or seeking to, did not challenge that finding of the Deputy District Judge, that is to say that the claim repeated the proceedings in the Employment Tribunal. Rather, the argument was that res judicata in the sense of issue estoppel could only apply when there had been an actual adjudication on the earlier claim, and that that was not the case here. That that was the argument below is apparent from the copy that we have of the skeleton argument used on that occasion.
In determining that appeal His Honour Judge Griffiths-Jones considered that he was bound by the decision of this court in the case of Barber v Staffordshire County Council [1996] 2 All.E.R. 748 (to which I shall refer as "Barber"), which demonstrated that as a decision of the...
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