Kadiyali Madhava Srivatsa v Secretary of State for Health (Defendant 1) The Practice Surgeries Ltd (Defendant 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 18 November 2016 |
| Neutral Citation | [2016] EWHC 2916 (QB) |
| Court | Queen's Bench Division |
| Date | 18 November 2016 |
| Docket Number | Case No: HQ12X01519 |
[2016] EWHC 2916 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: HQ12X01519
Giles Bedloe (instructed by CJ Jones LLP) for the Claimant
Thomas Cordrey (instructed by DAC Beachcroft LLP) for the 1 st Defendant
Mugni Islam-Choudhury (instructed by In-house Legal) for the 2 nd Defendant
Hearing dates: 8 th & 9 th November 2016
Judgment Approved
The Claimant 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 st March 2013 Primary Care Trusts were abolished and their liabilities were taken over by the Secretary of State for Health who is now the 1 st Defendant ('D1') to this claim. There is no need to distinguish between the Secretary of State and his predecessors and so I shall refer to them all as D1. On 1 st May 2011, the Practice Surgeries Ltd which is the 2 nd Defendant ('D2') to the claim 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.
Disputes arose between the Claimant and his employers and, at some stage, his employment came to an end. Quite when that happened is a matter of dispute, but not one which I need to resolve.
On 3 rd May 2011 the Claimant issued proceedings in the Employment Tribunal (London South) ('the ET'). Both Defendants to the present action were named as respondents. To minimise confusion, I will continue to refer to them as the 'Defendants'. The Claimant alleged unlawful discrimination, breach of contract, detriment for making protected disclosures constructive unfair dismissal and arrears of pay.
D1 filed a response to the claim on the form ET3 on 7 th June 2011. Among the points which were raised was an allegation that the claim relating to a protected disclosure was out of time. Such a claim had to be made within 3 months and (at least) most of the acts on which the Claimant relied had occurred before then. D2 filed an ET3 on the same day. It, too, took a limitation point.
The ET claim was listed for hearing (which may have been an interlocutory or preliminary hearing) on 27 th October 2011.
On 25 th October 2011, solicitors for the Claimant wrote to the ET and the Defendants saying 'Our client wishes to withdraw his claim' and asking for the hearing which was due to take place 2 days later to be vacated.
At this time, the prevailing ET Rules of Procedure were those in 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 26 th October 2011 the ET acknowledged receipt of the Claimant's solicitors' email regarding withdrawal. It said that the claim had been withdrawn and the file had been closed. The Claimant's solicitors were told that the file would be retained for a year and then destroyed.
On 7 th November 2011, solicitors for D1 applied for the claim to be dismissed. It also indicated that it might seek a costs order against the Claimant.
On 14 th November 2011 the Claimant's solicitors responded
'We have received a copy of the [D1]'s application for an order that the claim be dismissed and judgment be entered, which we received on 9 th November.
We object to the order sought. Our client withdrew his claim upon the expectation that his employment claims would be concluded. His principle 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.'
The 2 nd Respondent (the 2 nd Defendant in the present claim) objected to any reactivation of the Claimant's claim and applied for costs.
On 15 th December 2011 the ET wrote to the parties and 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."'
The present claim in the High Court began with the Claimant issuing his claim form on 18 th April 2012. At that stage there was just one defendant, Surrey Community Health. The claim was for breach of contract and damages for tortious conspiracy.
D1 applied for summary judgment on the ground that the claim against it had no realistic prospect of success. It argued that, from 1 st May 2011 any liability which it had had to the Claimant was transferred to The Practice Surgeries Ltd as a result of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ('the TUPE point'). On 8 th February 2013 Master Yoxall acceded to the application and granted summary judgment in the Defendant's favour. On 11 th October 2013 HHJ Higgins, sitting as a Deputy Judge of the High Court, allowed the Claimant's appeal and set aside Master Yoxall's summary judgment.
On 24 th March 2014 Master Yoxall made a number of orders by consent. The Practice Surgeries Ltd was added as D2. The Secretary of State for Health was substituted as the D1. The Claimant was given permission to amend his Particulars of Claim. A timetable was set for the D1 to amend his defence (which he did on 23 rd May 2014) and for D2 to file its defence.
In its defence dated 9 th June 2014, D2 pleaded (amongst other things) that the Claimant was estopped from pursuing his claim against it because of the earlier ET proceedings.
On 16 th September 2014 D1's solicitors wrote to the ET drawing attention to the fact there appeared to have been no decision on its application for the Claimant's claim in the ET to be dismissed.
On 13 th October 2014 EJ Martin ordered that the ET proceedings which C had brought against D1 and D2 should be dismissed 'following a withdrawal of the claim by the claimant'. That decision was sent to the solicitors for D1 on 21 st October 2014. The Tribunal did not also send a copy to the Claimant or to D2. D1's solicitors did send a copy of EJ Martin's decision to the Claimant on 24 th October 2014.
On 21 st January 2015 D1 applied for permission to re-amend his defence to the High Court claim. The draft pleading sought to add a defence of estoppel. The application notice also sought the trial of a preliminary issue, of, among other things, whether the Claimant was estopped from bringing his claim.
On 10 th February 2015 Master Yoxall granted permission to D1 to re-amend his defence. He also ordered that there should be a trial of the issue of
'whether, pursuant to the principles of res judicata and abuse of process the Claimant is estopped from bringing his claim.'
It has been that issue which I have been trying.
Master Yoxall made further directions regarding that preliminary issue trial.
On 12 th February 2015 the Claimant's solicitors wrote to the ET asking for the decision of EJ Martin of the previous October to be reconsidered.
On 5 th March 2015 EJ Martin extended time for the Claimant 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 destroyed. This information was not made known by the Respondent when requesting a dismissal judgment.'
D1 and D2 then applied to EJ Martin to reconsider that decision of 5 th March. On 30 th March 2015 the Tribunal notified the parties that EJ Martin refused to reconsider her decision of 5 th March.
D1...
To continue reading
Request your trial
-
Dr Kadiyali Madhava Srivatsa v Secretary of State for Health
...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. 2 Dr Srivatsa is a General Practitioner. He began working for a practice kn......