Sivanandan v Enfield London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Wall,Lord Justice Buxton,Lord Justice Peter Gibson
Judgment Date20 Jan 2005
Neutral Citation[2005] EWCA Civ 10
Docket NumberCase No: A2/2004/0872 & 0875

[2005] EWCA Civ 10

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL APPEALS DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Sir Edwin Jowitt

HQ02X04120

Before

Lord Justice Peter Gibson

Lord Justice Buxton and

Lord Justice Wall

Case No: A2/2004/0872 & 0875

Between
London Borough of Enfield
Appellant
and
Ms Natasha Sivanandan
Respondent

Daphne Romney (instructed by The London Borough of Enfield) for the Appellant

Mr Richard O'Dair (instructed by Messrs Pollecoff) for the Respondent

Lord Justice Wall

Introduction

1

On 9 December 2002, the respondent to this appeal, Ms Natasha Sivanandan, issued proceedings in the Queen's Bench Division of the High Court (the Queen's Bench proceedings) against the appellant, the London Borough of Enfield (Enfield) for damages for breach of contract. The contract in question was a contract of employment between Ms Sivanandan and Enfield under which Enfield employed Ms Sivanandan as a racial equality officer.

2

The particulars of claim in the Queen's Bench proceedings are dated 5 April 2003. Enfield did not file a defence, and as a consequence Ms Sivanandan obtained judgment in default. Enfield then applied both to set aside the judgment and to strike the proceedings out as an abuse of process. On 13 November 2003, Master Leslie set aside the judgment and struck out parts of the particulars of claim. He gave Enfield permission to appeal against his refusal to strike out the proceedings in their entirety, but refused Ms Sivanandan's application for permission to mount a cross-appeal designed to reinstate those parts of the claim, which he had struck out. However, on 21 January 2004, Cox J gave Ms Sivanandan permission to appeal, with the result that the appeal and the cross-appeal came before Sir Edwin Jowitt, sitting as a judge of the High Court, on 9 to 11 March 2004. In a reserved judgment handed down on 5 April 2004, he dismissed both, and refused both parties permission to appeal.

3

On 20 May 2004, Brooke LJ, on the papers, granted Enfield permission to appeal, but refused Ms Sivanandan's application. She renewed it before Maurice Kay LJ on 29 July 2004; he directed that the application be adjourned to the hearing of Enfield's appeal and granted her permission to file her respondent's notice out of time.

4

At the outset of the argument before us, and with the agreement of both counsel, we heard Ms Sivanandan's application for permission to appeal first. Having done so, we announced that her application would be refused for reasons which we would give when giving judgment on Enfield's appeal. At the conclusion of the argument on the appeal, we reserved judgment.

Rule 3.4 of the Civil Proceedings Rule 1998 (CPR)

5

As applied to this case, the relevant provisions of CPR Rule 3.4 are the following: —

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court —

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; ……

The issues in bare outline

6

Enfield argues that the Queen's Bench proceedings are an abuse of process on two principal grounds. The first is that the claims which Ms Sivanandan now seeks to bring were all properly before the Stratford Employment Tribunal in proceedings brought by Ms Sivanandan against Enfield and others in which she had claimed race discrimination and victimisation under the Race Relations Act 1976 (RRA 1976), unfair dismissal, breach of contact, and sex discrimination under the Sex Discrimination Act 1975 (SDA 1975). The claim for breach of contact, it argues, had never been withdrawn from the Employment Tribunal and it was, accordingly, finally adjudicated upon and disposed of when the Employment Tribunal, in circumstances, which I shall describe, struck out all Ms Sivanandan's claims on 6 September 2000.

7

Secondly, and in the alternative, Enfield argues that even if the breach of contract claim was withdrawn from the Employment Tribunal, the Queen's Bench proceedings are an attempt to resurrect, as a claim for breach of contract, allegations of race discrimination and victimisation which Ms Sivanandan had every opportunity to ventilate in the Employment Tribunal proceedings. Furthermore, Enfield argues, Ms Sivanandan had asserted throughout the Employment Tribunal proceedings that she had been dismissed from her employment as a racial equality officer on 11 December 1996. It was thus an abuse of process for her now to seek to bring proceedings in which she asserted that she had never been dismissed; and that her contract of employment remained in being because she had never accepted Enfield's unilateral and unlawful repudiation of it.

8

Ms Sivanandan's case, in a nutshell, is that her claims for breach of contract and wrongful dismissal were clearly withdrawn from the Employment Tribunal on the basis that they exceeded in value the Employment Tribunal limit of £25,000 and that she intended to pursue them in the County Court or the High Court. They were thus unaffected by the dismissal of her Employment Tribunal proceedings. Secondly, she argues, that far from being an abuse of process, the Queen's Bench proceedings represent her final opportunity to obtain the justice which she had been seeking since she first instituted proceedings in the Employment Tribunal in 1997. She had never been dismissed by Enfield. Whilst Enfield had unilaterally and unlawfully repudiated her contract of employment, she had never accepted that repudiation. Her primary case, accordingly, was that she was entitled to damages on the basis that she had remained throughout Enfield's employee. Alternatively, if her contract of employment with Enfield had been terminated, she had been denied a proper grievance and disciplinary procedure, and Enfield's liability to her in damages extended to the period in which the contract could have been lawfully terminated—a period which, she estimated, would probably have lasted up to two years, given the complex nature of the grievances raised..

9

There are, clearly, various ways in which the complex history of a case such as the present can be approached. I have come to the conclusion that the manner of presentation which most readily demonstrates the answer to the appeal, and which enables the Queen's Bench proceedings to be seen in their proper context, is to deal with events in chronological order. This judgment will, accordingly will deal with events in the following sequence;

(1) the history of the proceedings between the parties in the Employment Tribunal and the County Court (paragraphs 10 to 50);

(2) the claim as pleaded in the Queen's Bench proceedings (paragraphs 51 to 55);

(3) the decision of Master Leslie (paragraphs 58 to 59);

(4) the decision of Sir Edwin Jowitt (paragraphs 60 to 69);

(5) Ms Sivanandan's application for permission to appeal (paragraphs 70 to 84);

(6) the arguments advanced in this court on both sides in Enfield's appeal (paragraphs 85 to 98);

(7) Discussion, analysis and conclusion (paragraphs 99 to 140).

Ms Sivanandan's application to the Employment Tribunal

10

I therefore begin the history on 8 March 1997, when Ms Sivanandan filed a Form IT1 in the Employment Tribunal at Stratford in East London. The particulars, which she gave about herself in that form, were that she had been employed between 22 July 1996 and 11 December 1996 as a Racial Equality Officer at Enfield Racial Equality Council (EREC). In Box 5 of the form, in which she was asked to give "the name and address of the employer, other organisation or person against whom this complaint is brought", she identified three. They were (1) Enfield; (2) EREC; and (3) a director of EREC identified as Ms C Bhatia.

11

The complaints which Ms Sivanandan made were of: —

(1) Racial discrimination and victimisation, contrary to RRA 1976;

(2) Unfair dismissal (written statement of employment particulars);

(3) Breach of contract ;

(4) Sex discrimination, contrary to the SDA 1975.

12

A word of explanation about complaints (2) and (3) above is necessary. Ms Sivanandan could not avail herself of the right not to be unfairly dismissed given by section 94 of the Employment Rights Act 1996 ( ERA 1996) because she had plainly not been continuously employed for a period of what was then two years (now 12 months):—see ERA 1996, section 108(1). However, she was able to make a claim under ERA 1996, section 104(1)(b), since ERA 1996 section 108(3) disapplies section 108(1) in relation to it. Section 104(1)(b) provides: —

An employee who is dismissed shall be treated for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—…..

(b) alleged that the employer had infringed a right of his, which is a relevant statutory right.

13

The "relevant statutory right" which Ms Sivanandan identifies in the statement attached to her Form IT1 is her right to a written statement of employment particulars ( ERA 1996, section 1). It will be noticed that, to succeed under ERA 1996 section 104(1)(b), Ms Sivanandan would have had to demonstrate that her assertion of her statutory rights was either the reason (or if there were more than one) the principal reason for her dismissal.

14

As for Ms Sivanandan's claim for breach of contract, the particulars which she gives are the following: —

I believe the respondents breached the...

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