Dr Kadiyali Madhava Srivatsa v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Kitchin,Lady Justice Asplin |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWCA Civ 936 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/4550 |
| Date | 26 April 2018 |
[2018] EWCA Civ 936
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Nicol
HQ12X01519
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Kitchin
and
Lady Justice Asplin
Case No: A2/2016/4550
Giles Bedloe (instructed by Messrs C J Jones LLP) for the Appellant
Thomas Cordrey (DAC Beachcroft LLP) for the 1 st Respondent
Mugni Islam-Choudhury (instructed by The Practice Surgeries Limited) for the 2 nd Respondent
Hearing date: 19 April 2018
Judgment Approved
The issue on this appeal is whether Dr Srivatsa is entitled to prosecute an action in the High Court against his former employers. The Respondents say that he is not, because before the action began he had issued and then withdrawn proceedings in the Employment Tribunal (“the ET”) which were formally dismissed after the action had begun. Nicol J agreed with them. His judgment is at [2016] EWHC 2916 (QB). I can take the essential facts from the judge's judgment.
Dr Srivatsa is a General Practitioner. He began working for a practice known as The Surgery in College Road, Woking in 2004. His employer at that time was Surrey Primary Health Care Trust, or the part of the PCT known as Surrey Community Health. On 31 March 2013 Primary Care Trusts were abolished and their liabilities were taken over by the Secretary of State for Health. On 1 May 2011, the Practice Surgeries Ltd was awarded the contract by the Primary Care Trust to run the surgery and the GP service was transferred to it from the Primary Care Trust.
On 3 May 2011 Dr Srivatsa issued proceedings in the ET. Both Surrey Community Health and the Practice Surgeries Ltd were named as respondents. Dr Srivatsa alleged unlawful discrimination, breach of contract, detriment for making protected disclosures, constructive unfair dismissal and arrears of pay. The disclosures on which he relied all took place before January 2009. The last specified instance of detriment that he alleged was his removal from the Performer's Group List on 16 August 2010. Both respondents filed responses to the claim on 7 June 2011 on form ET3. In each ET3 the respondents pleaded:
“JURISDICTION
6. The Claimant's Claim Form was submitted on 6 May 2011. In respect of his Public Interest Disclosure Act 1998 (“PIDA”) claim, the Claimant is only entitled to complain about alleged detriments occurring on or after 7 February 2011. The [relevant] Respondent will submit that the Tribunal does not have jurisdiction to consider any alleged detriments occurring before this date and that there is no evidence of a continuing act.
7. The [relevant] Respondent contends that the Tribunal does not have jurisdiction to consider any claim for loss of the chance of earning locum income as a result of the Claimant not being included on the Performers List.”
On 25 October 2011, shortly before the first listed hearing, Dr Srivatsa's solicitors wrote to the ET by e-mail. They said:
“Our client wishes to withdraw his claim and therefore we should be pleased if you will vacate Thursday's hearing.”
On 26 October 2011 the ET acknowledged receipt of the email. It said that the claim had been withdrawn and the file had been closed. Dr Srivatsa's solicitors were told that the file would be retained for a year and then destroyed.
At the time of the withdrawal the prevailing ET Rules of Procedure were those in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 (“the 2004 Rules”). Rule 25 of the 2004 Rules provided:
“25. – (1) A claimant may withdraw all or part of his claim at any time – this may be done either orally at a hearing or in writing in accordance with paragraph (2).
(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents he claim is being withdrawn.
(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.
(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).”
On 7 November 2011, Surrey Community Health's solicitors applied for the claim to be dismissed. They also indicated that they might seek a costs order against Dr Srivatsa. His solicitors replied:
“'We have received a copy of the 1 st respondent's application for an order that the claim be dismissed and judgment be entered, which we received on 9 November.
We object to the order sought. Our client withdrew his claim upon the expectation that his employment claims would be concluded. His [principal] reason for doing so was the cost of pursuing his claim against 2 respondents whose pockets are very much deeper than his own. The risk of a costs order, however slight, coupled with the risk that to reach a full hearing would involve expense he simply cannot manage, caused him to withdraw. Our client was facing a barrage of technical and procedural issues.
Accordingly, our client was obliged to withdraw for economic reasons. It now appears that one of the respondents intends to pursue a costs order. If this is correct (it is not clear from their letter), then the claimant would wish to re-activate his claim rather than face a costs application.”
Following an objection to reactivation, the ET wrote to Dr Srivatsa's solicitors on 15 December 2011. The letter said:
“‘Employment Judge Hall-Smith has considered the parties’ recent correspondence and instructs me to write as follows:
The Judge points out that the Employment Tribunal has no jurisdiction to ‘re-activate’ a claim which has been withdrawn. There is no such thing as “conditional withdrawal”.”
Dr Srivatsa began his High Court action on 18 April 2012. At that stage there was just one defendant, Surrey Community Health, which had been one of the two respondents in the ET. The claim was for breach of contract and damages for tortious conspiracy. At the time that the action was begun his claim in the ET had been withdrawn but not dismissed, although an application for dismissal had been made.
The underlying facts pleaded were to all intents the same as those which had been relied on in the ET claim.
On 24 March 2014 Master Yoxall made a number of orders by consent. The Practice Surgeries Ltd was added as Second Defendant. The Secretary of State for Health was substituted as the First Defendant. Dr Srivatsa was given permission to amend his Particulars of Claim. A timetable was set for the Secretary of State to amend his defence (which he did on 23 May 2014) and for The Practice Surgeries Ltd to file its defence.
In its defence, pleaded on 9 June 2014, The Practice Surgeries Ltd pleaded:
“If the ET Claim has been dismissed by order of the Employment Tribunal, the Second Defendant relies on issue and/or cause of action estoppel in defence of the present claim in respect of those issues and claims pleaded and claimed in the ET claim now pursued in these proceedings.”
It will be noted that the plea of estoppel was a conditional one. In fact at the date of the pleading the ET claim had not been dismissed, but the application for dismissal was pending, despite the fact that it had been made some two and a half years earlier. The Secretary of State's solicitors wrote to the ET on 16 September 2014 drawing attention to the fact there appeared to have been no decision on its application for the claim in the ET to be dismissed. Since the ET had said back in October 2011 that the file would be destroyed after one year, it was entirely foreseeable that the ET would not have the relevant paperwork. However, the letter did enclose the ET1 and also Dr Srivatsa's solicitors' e-mail of 14 November setting out their objections to dismissal.
On 13 October 2014 EJ Martin ordered that the ET proceedings should be dismissed ‘following a withdrawal of the claim by the claimant’. No further reasons were given for that decision. That decision was sent to the Secretary of State's solicitors on 21 October 2014. The Tribunal did not also send a copy to Dr Srivatsa or to The Practice Surgeries Ltd. However, the Secretary of State's solicitors did send a copy of EJ Martin's decision to Dr Srivatsa on 24 October 2014. Dr Srivatsa did not appeal against that decision.
On 12 February 2015 Dr Srivatsa's solicitors wrote to the ET asking for the decision of EJ Martin of the previous October to be reconsidered.
On 5 March 2015 EJ Martin extended time for Dr Srivatsa to apply for reconsideration of her earlier decision and revoked that earlier decision. She said:
“The Claimant had objected to the dismissal of proceedings when he withdrew his claim in 2011. This information was not known to the judge when the Judgment was made as the Tribunal file had been closed and...
To continue reading
Request your trial
-
Secretary of State for Justice v Mr Ben Plaistow
...Sajid v Sussex Muslim Society [2001] EWCA Civ 1684, [2002] IRLR 113, and Srivatsa v Secretary B of State for Health and another [2018] EWCA Civ 936, [2018] ICR 1660). More generally, it is important to look to the substance of what a party has conceded by adopting or accepting a particular ......
-
Mr Hussain v Newday Cards Ltd: 1803823/2020
...set out in the 2013 Rules. Similarly, those principles are considered under the old rules in Srivatsa v Secretary of State for Health [2018] ICR 1660, despite the date of that 96. The Respondent refers to Campbell v OCS Group UK Ltd (unreported, EAT 0188/16) submitting that in this case the......
-
Mrs L Mortie v Blue Arrow Ltd: 2301149/2019
...to having conceded the issue by choosing not to have the matter formally determined." 50. In Srivasta v Secretary of State for Health [2018] EWCA Civ 936, an ET1 was presented in May 2011 and withdrawn in October 2011, but no dismissal judgment was issued until October 2014, by which time H......
-
Marcus Farnham-Oliver v RM Educational Resources Ltd
...following resolutions and compromises of Tribunal Claims. Mr Watson relied on the decision in Srivatsa v Secretary of State for Health 2018 ICR 1660. There an Employment Claim had been made and withdrawn with a Rule 52 dismissal and then a Civil Claim based on the same facts was brought. Th......