Bon Groundwork Ltd v Foster
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lady Justice Arden,Lord Justice Pill |
| Judgment Date | 13 March 2012 |
| Neutral Citation | [2012] EWCA Civ 252 |
| Date | 13 March 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/0984/EATRF |
[2012] EWCA Civ 252
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MR JUSTICE SILBER (SITTING ALONE)
UKEAT/0382/10/SM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Arden
and
Lord Justice Elias
Case No: A2/2011/0984/EATRF
Mr Chris Bryden (instructed by Lefevre LLP) for the Appellant
Mr Simon Forshaw (instructed by Mary Ward Legal Centre) for the Respondent
Hearing date : 31 January 2012
This is an appeal against the judgment of the Employment Appeal Tribunal, Silber J presiding, in which he allowed an appeal against the judgment of the Employment Judge, Mrs Seymour, who had struck out certain of the claims of Mr Foster, the respondent to this appeal. The claims were struck out on two bases. With respect to some of the claims, she considered that they were res judicata, having been effectively determined by Employment Judge Salter in an earlier application. As to certain other claims, she considered that they amounted to an abuse of process within the principle enunciated in Henderson v Henderson (1843) 3 Hare 100.
Employment Judge Seymour had refused to strike out a claim for guaranteed pay under part III of the Employment Rights Act 1996. That was the subject of a cross appeal before the EAT, which was unsuccessful. There are also other claims pursued by Mr Foster which the employer accepts will have to be heard by the Employment Tribunal.
The employer, Bon Groundwork Limited, now appeals to this court against the determination of the EAT and seeks to restore the judgment of Employment Judge Seymour, save with respect to her ruling that the claim for guaranteed pay should be allowed to go ahead.
The relevant legal principles.
Since the relevant legal principles are not in dispute, I will set them out briefly. The principle of res judicata can be summarised as follows: where an issue has been litigated before a judicial body and determined as between the parties, it cannot be re-opened. It is binding as between them and the parties are estopped from re-opening it. The issue may be one of fact or of law. However, the parties are only bound by an issue which it was necessary for the court to determine in the earlier claim. In Arnold v. National Westminster Bank plc [1991] 2 AC 93 Lord Keith of Kinkel observed that the principle applies where:
"… a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue."
It follows, therefore, that a finding of fact by an earlier court which is not a "necessary ingredient" in the earlier cause of action will not give rise to a 'fact estoppel'. Moreover, a finding cannot be a necessary ingredient of a cause of action if the earlier court or tribunal did not have jurisdiction to decide the matter at all: see the observations of Sir Nicholas Browne-Wilkinson, as he was, in O'Laoire v Jackel Ltd [1991] ICR 718 when he said:
"It is well established that there can be no estoppels arising out of an order or judgment given in excess of jurisdiction."
An exception to this principle is where a court makes an express finding as to jurisdiction which is not appealed. Any such finding is binding on the parties, even if it is subsequently shown to be wrong: see the observations of Lord Hoffmann in Watt v Ahsan [2007] UKHL 51; [2008] 1 AC 696, para 31.
The well-known principle enunciated in Henderson v Henderson was expressed in that case by Wigram VC in the following terms:
"[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
The principle has frequently been considered by the courts. The only passage in any of the later decisions to which it is necessary to refer is the judgment of Lord Bingham of Cornhill in Johnson v Gore-Wood [2000] UKHL 65; [2002] 2 A C 1 where his Lordship identified the close inter-relationship between this doctrine and the principle of res judicata itself:
"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
The central question for the court is, therefore, whether the later proceeding involves the unjust harassment of a party; but that condition is not satisfied merely because a claim could have been brought in the earlier proceedings but was not.
The background.
Mr Foster is a 78 year old man who was employed as a carpenter by the appellant company. His employment commenced in August 1997. He was laid off without pay by the company on 15 April 2009. On 27 April he wrote to his line manager, Mr Nagle, and stated that the company was not entitled to lay him off and that he should have been paid for the period since 15 April. He requested that he be returned to full employment and be provided with a written copy of his terms and conditions of employment.
Two days later, on 29 April, Mr Nagle (on behalf of the company) decided to dismiss Mr Foster. The dismissal was said to be by reason of retirement. By letter dated 21 May the company confirmed that Mr Foster was to be dismissed with effect from 31 July. Mr Foster has never received any payment of any description with respect to any period after 15 April, when he was laid off.
Mr Foster submitted a claim form to the Tribunal (an ET1) being assisted in drafting it by his local Citizens Advice Bureau. He sought, amongst other matters, a redundancy payment. This claim was lodged with the Tribunal on 10 June 2009 which was before his dismissal took effect on 31 July. In the ET1 Mr Foster confirmed that at the date of lodging the claim he was still employed and the details of his claim for redundancy pay were put in the following way:
"I have been laid off from my employment since Wednesday 15 April 2009. I have not worked for my employer since this date. My lay off has now exceeded four consecutive weeks or a total of six weeks in the last thirteen week period.
I wrote to my employer on 27 April 2009 but I have not been provided by work by my employer who has taken away from me a van that is essential for me to carry out my employment."
In the section headed "What compensation or remedy are you seeking?" Mr Foster identified the sums which he was seeking to recover and these included, as a head of compensation for redundancy, the sum of £10,500. This was premised on the assumption that he would be entitled to 30 weeks' pay. Mr Foster had claimed in his ET1, erroneously it seems, that his employment began in 1982. On that assumption the calculation would have been correct.
Section 135 of the Employment Rights Act 1996 provides that a redundancy claim can be made either as a result of the employee being dismissed by reason of redundancy or in certain circumstances where he is laid off or kept on short time:
(1) An employer shall pay a redundancy payment to any employee of his if the employee—
(a) is dismissed by the employer by reason of redundancy, or
(b) is eligible for a redundancy payment by...
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