Mr A Soyege v Solicitors Regulation Authority Ltd: 1307884/2022
JUDGMENT
WITH WRITTEN REASONS The judgment of the Tribunal is as follows: Strike out of claims[1]The claims under case numbers 1307884/2022, 1308608/2022 and 1300342/2024 are struck out under Employment Tribunal Rule 37(1)(a) because they have no reasonable prospect of success. Issues[2]This hearing was listed following a case management hearing on 16 November 2023. At that case management hearing, it was confirmed that the following issues would be considered today:a. The Tribunal will determine the following issues (to the extent it appears appropriate to the Judge to do so, in light of the circumstances applying at the time)b. Clarification of the Claimant’s claimsc. Whether any of the Claimant’s claims should be struck as they have no reasonable prospect of success or be made subject to a deposit order as they have little such prospect, because: i. The principles of res judicata, issue estoppel or Henderson v Henderson apply; ii. The claim is one the Tribunal has no jurisdiction to determine; iii. The claim is likely to fail on its merits.d. Whether the Claimant’s claims should be struck out because they are, or the manner in which they have been pursued is, unreasonable or vexatious.e. Case management for any claims allowed to proceed.[3]The case management hearing was concerned with cases 307884/2022 and 308608/2022. Since those cases were issued, the Claimant issued a further claim under case number 1300342/2024. The Tribunal then wrote to the parties confirming that this case would also be consolidated with the 2022 claims as they appeared to arise from the same facts. The Tribunal then confirmed that the case had been consolidated with the 2022 claims and they would all be heard together, therefore case 13000342/2024 was also before me today. Law[4]Rule 37 of the Employment Tribunal Rules 2013 provides that at any stage of the proceedings... a Tribunal may strike out all or part of a claim or response on any of the following ground:(a) that it is scandalous or vexatious or has no reasonable prospect of success(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; The principles of Res Judicata, estoppel and the case of Henderson v Henderson[5]The principles of Res Judicata and estopel are essentially that once a cause of action has been held to exist or not, that cannot be challenged by either party in subsequent proceedings. Even if the cause of action is not the same (for example it involves some of the same facts, but a different legal label) if the same issue necessarily arises in both sets of proceedings (for example, whether some interaction did or did not take place) if it is decided in the first litigation between the same parties in one way or another, it is binding on them.[6]The case of Henderson v Henderson [(1843) 3 Hare 100, 115] establishes that when issues in a claim should have been the subject matter of earlier litigation and the parties (using reasonable care and diligence) could and should have raised them at the time, they may be prevented from raising these matters in later proceedings.[7]The fact that litigation should be final and that a party should not be twice vexed in the same matter underpins these principles. The hearing[8]There is a previous judgment related to these cases under claim numbers: 1306993/2020, 1300135/2021 and 1305090/2021 dated 12 June 2023 which followed a multi-day hearing in March 2023. That judgment sets out the background of this dispute, which goes back to the Respondent’s decision to impose restrictions on the Claimant’s practicing certificate in 2015.[9]The hearing started with me confirming that clarification of the claims 2022 claims had already been sought at the previous case management hearing but that, since then, the 2024 claim had been added and been consolidated with the 2022 claims to be heard together. It therefore also falls to be considered at this preliminary hearing.[10]I confirmed to the Claimant that I understood the basis of the 2024 claim to be the same as his 2022 claims but that it related to his practicing certificate for the next period and the restrictions that the Respondent had again put on this. Indeed, the Claimant had copied and pasted the content of his previous ET1 claim forms into this claim. The Claimant appeared to agree that this was the substance of this claim.[11]He was, however, unable to provide any clarity as to the basis for claiming that he had been discriminated against a fresh on the grounds of race, disability and age or vicitmised and harassed in respect of this latest claim. The reasons for the Respondent maintaining the conditions that they had applied to his practicing certificate stemmed from the original investigation that it had carried out back in 2015 when the conditions had been first applied to the Claimant’s practicing certificate. As the Claimant had not practiced since these original restrictions were put in place, there were no changes of circumstance or developments for the Respondent to take into account that would alter its decision to apply these conditions.[12]The Claimant also stated that it was the way that the Respondent was conducting these proceedings that was the issue. However, it was not at all clear what the conduct the Claimant was alleging was, beyond him viewing the fact that the Respondent had continued to attach the restrictions to his practicing certificate that had originally been placed on it back in 2015 as discrimination, victimisation and harassment. His claim goes back to the Respondent’s original decision to impose restrictions on his practicing certificate and that he considers that they did not present any of the documents that would have exonerated him to the adjudicator. He was also concerned by the way the Respondent had conducted litigation in respect of these matters so far and considered that the Respondent had left out crucial documentation that should have been before the Tribunal which the Tribunal had therefore failed to consider.[13]Whether the original investigate into the Claimant’s conduct by the Respondent which led to conditions being placed on his practicing certificate was tainted with discrimination or whether the Claimant had been harassed or victimised, have already been considered in some considerable detail by the Tribunal Panel that heard this matter back in March 2023 and addressed in Judge Flood’s reserved judgment dated 12 June 2023. The Claimant states in his pleadings that it is how rather than why the decision has been made which he is seeking to address through the Employment Tribunal and as such the Tribunal is not prevented from so it is not the case that the Employment Tribunal is prevented from hearing his case by virtue of s.120(7) Equality Act 2010 because of the right of appeal against the decision conferred by s.13 Solicitors Act 1974. However, the issue of how as well as why the decision was made to place restrictions on the Claimant’s practicing certificate were considered in Judge Flood’s judgment. Findings of fact were made either on the basis that the Tribunal did not have jurisdiction to hear the Claimant’s complaints by virtue of section 120(7) of the EQA and/or that the allegations were not made out on the facts.[14]I could not see, in respect of these three claims before me for this preliminary hearing, that there had been any material changes of fact or that there was a different factual matrix and as such, find that the facts that these complaints stem from have already been tried and judgment passed.[15]When asked to clarify his claim, the Claimant talked about the fact that he had 5 claims not 3. I note that this was also what he wished to address with Judge Maxwell at the case management preliminary hearing on 16 November 2023. After some discussion, it appeared to be the case that the Claimant was referencing previous claims that he had issued and ACAS certificates that he had raised and that he was saying that there were “totaling new claims” the facts of which the Tribunal had not considered and that they were not before the Tribunal. The Claimant then referred me to paragraphs 20-22 of Judge Flood’s judgment dated 12 June 2023 and I paused to read these. I also read that judgment in full before making my judgment.[16]In respect of the fact that the Claimant states that there were 5 claims not 3 that were issued and should have been considered, as well as the Claimant’s concerns regarding the conduct of the Respondent in respect of whether relevant documents were before the Tribunal, I find that these matters had all been considered by Judge Flood in the Tribunal’s previous judgment, they relate to a time period prior to the previous judgment, and are not new issues being raised but have already been addressed and a judgment made in respect of this issue. As such I find that there is no jurisdiction to consider this issue again.[17]In terms of further submissions, I asked the Claimant whether it might be helpful for counsel to go first so that he could then respond to the points that were being raised. The Claimant was content with this suggestion.[18]Counsel stated that there were no new facts related to these most recent claims, that a judgment in respect of the factual allegations raised (as far as it was possible to decipher these for the Claimant’s pleadings) had already been made. This was not an ongoing relationship like an employment relationship where there had been potential developments, it was a case were the Claimant was applying to renew his practicing certificate each year and, as there had been no developments in the preceding years as the Claimant had not being practicing as a solicitor, there had been no new information to take into account since the last time the Claimant had made an application. As such, the same conditions were being maintained on his practicing certificate which had previously been applied and stemmed from the original investigation. Counsel’s position was that the Claimant was therefore prevented from pursuing these claims(i) on the basis of res judicata, and/or(ii) on the basis that they do not have reasonable prospect of success and/or(iii) the manner they were being pursued was vexatious or otherwise unreasonable.[19]Counsel requested that I also address in my judgment the way that the Claimant had conducted proceedings today and whether the Claimant had in addition acted vexatiously and unreasonably in the manner that he has pursued this litigation. Counsel urged me to consider the fact that, whilst the Claimant is self-representing in respect of these proceedings, he is a solicitor and to view his actions through this lens.[20]When I heard from the Claimant he immediately referred me to some pages of a bundle which were not a bundle that I had in front of me. Both parties had been ordered in the case management hearing in November 2023 to provide their own bundles for this preliminary hearing owing to the amount of correspondence that the Claimant was sending to the Respondent, which was making it impossible to sensibly manage this case. Counsel for the Respondent had not mentioned the Claimant’s bundle when I had discussed the documents I had before me at the beginning of the hearing and had not mentioned it when giving his submissions as he had not needed to refer to the Claimant’s bundle.[21]I therefore paused the hearing to enquire with the clerk assisting with this hearing regarding receipt of the Claimant’s bundle. It was confirmed that no bundle had been received.[22]On reconvening the hearing, I confirmed to the Claimant that no bundle had been received by the Tribunal. Counsel pointed out that the Judge had, in the 16 November 2023 order, set out an order for the preparation for the bundle. An email was also sent to the Claimant by the Tribunal on 26 March 2024 in response to him sending a link to an external site where his bundle could be downloaded, stating “please be advised that for security reasons we are not allowed to download files from webbased hosting services”. This email set out alternative methods by which this could be accepted. The Judge in the order on16 November 2023 also confirmed that as an alternative paper bundles could be submitted by the parties. The Claimant had not submitted his bundle by either method. Counsel confirmed that the Claimant’s bundle for this preliminary hearing was 4053 pages long and that the Respondent had been unable to download some of it.[23]I asked the Claimant whether this bundle was the same bundle that he had submitted for the hearing back in March 2023. He confirmed it was “totally different” and addressed different facts.[24]Counsel confirmed that, whilst the Respondent’s bundle was not a joint bundle, they had been careful to include all the relevant documents for this preliminary hearing within their bundle.[25]I asked counsel if he was able to get up an index of the Claimant’s bundle so that the document that the Claimant was seeking to refer me to could be identified. Counsel was of great assistance to the Tribunal in doing this and confirmed the various documents that the Claimant was referring to and then confirmed the corresponding pages that these appeared in the Respondent’s bundle. Through this process, I was able to identify a number of the documents that the Claimant was seeking to refer me to. In respect to the documents that the Claimant referred to as exhibit 19, it was confirmed that this ran to almost 500 pages, it was evident that these documents were historic and not related to the claims that were before me today. The Claimant was again revisiting the fact that he had raised 5 claims not 3 claims and that by cross-referencing case numbers to orders, these other claims had not been considered by the Tribunal and no judgment had been made in respect of them. In response to this, I go back to my findings at paragraph 15 and 16 that, whilst perhaps not to the Claimant's satisfaction, this matter had already been addressed by Judge Flood in her judgment and findings of fact made. The Tribunal are therefore bound by these findings of fact and the matter cannot be considered again.[26]After some helpful assistance from Counsel in identifying the nature of additional documents that the Claimant was wishing to refer to, I confirmed to the Claimant that I was satisfied that I had the documents that were necessary in order for me to consider the preliminary issues before me. The Respondent’s counsel had provided me with cross-referenced pages in respect of a number of these. I confirmed that I was not prepared to admit the Claimant’s bundle of 4053 pages. The Claimant expressed his unhappiness at this decision as he considered there to be crucial new evidence that would not be before me. However, from the discussions had and the type of documents that the Claimant was referring me to, these were previous Tribunal orders and again were addressing the Claimant’s assertion that there were 5 not 3 separate claim forms that had been issued and also related to his concerns regarding how the Respondent had conducted this litigation. They were not concerned with the period of time these claims before me today spanned.[27]I confirmed to the parties that I would adjourn to consider the documents that I had been directed to and the submissions made and that I would send out my decision in writing with reasons. This was owing to the need to consider the background to the claim and because I considered the Claimant would be likely to request written reasons in any event.[28]As set out above, I find that the matters raised in these proceedings relate to facts that have already been tried and judged in the Claimant’s previous cases heard back in March 2023. The issue of the claims that had been issued and what claims were before the Tribunal was considered in that litigation as was the issue of what documents were before the Tribunal.[29]I agree with Counsel’s submissions that the facts have already been tried and a determination has been made. There has been no martial changes since the previous cases were tried and the factual matrix on this case remains the same. There is therefore no reasonable prospect of the Claimant’s claims succeeding and I therefore confirm all three claims are struck out.[30]As has been observed by other Judges in previous case management orders and hearings, I was concerned by the way that the Claimant presented at the hearing today. The Claimant was polite and respectful during the hearing, but he did present as muddled and it was challenging to follow the points he was trying to make at times, with additional time taken to clarify the points he was making. The Claimant has, however, repeatedly informed the Tribunal that there is nothing he needs to make them aware of and that the only adjustment he needs is correspondence being in 16 font owing to him being partially sighted. However, given the Claimant’s presentation, whilst I can appreciate the frustrations that the Respondent is raising, I am not prepared to go on to consider the issues of whether the manner in which the Claimant has conducted these proceedings has been vexatious or unreasonable as it is not necessary for me to do so as part of this preliminary hearing given my findings above.[31]I do however find that the Claimant has been given a number of opportunities to further clarify his claims and he has struggled to provide the necessary clarification. The claims are not in a format that the Respondent could sensible be expected to respond to. Had I not already decided that there were no reasonable prospects of success on jurisdictional grounds, I would have found that it would not have been fair or reasonable for these claims to have been permitted to continue to a final hearing in any event. Employment Judge Wright 18 October 2024 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.