Mr C Johnson v Transport for London: 6007901/2024
JUDGMENT
The Judgment of the Tribunal is that the claim is struck out as an abuse of process under the rule in Henderson v Henderson.REASONS
[1]This decision was given orally on 22 April 2025. The claimant requested written reasons.[2]By a claim form presented on 7 August 2024 the claimant Mr Christopher Johnson brings a claim of disability discrimination for failure to make reasonable adjustments.[3]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties consented to the matter being heard by video.[4]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. About 4 members of the public attended at different points during the hearing.[5]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no difficulties.[6]The participants were told that was an offence for them to record the proceedings.[7]The only witness was the claimant and he had access to the relevant written materials. I was satisfied that the claimant was not being coached or assisted by any unseen third party while giving his evidence.The issues
[8]The issues for this hearing were identified by EmploymentJudge Gordon-Walker at a Case Management Hearing on 8 January 2025 as follows:
[9]The issue of res judicata: Is the claimant estopped from bringing his claim because:a. He brought the same cause of action against the respondent in case number 2305160/2021; andb. The respondent says that the issues in this case have already been determined in case number 2305160/2021: both claims involve the respondent’s conditions of fitness policy which the claimant says is a PCP which places him at a substantial disadvantage.[10]Is the claim an abuse of process (Henderson v Henderson)? Could and should the matters in the present claim have been raised in the earlier claim number 2305160/2021?[11]If the res judicata issue is determined in the claimant’s favour:a. Which legal and/or factual issues relevant to the present claim have been determined in case number 2305160/2021?b. Case management, including orders to prepare for the final hearing and Tribunal panel composition for the final hearing. Witnesses and documents[12]There was an electronic bundle of 127 pages and an authorities bundle from the respondent with 5 authorities.[13]The tribunal heard evidence from the claimant only.[14]There were Skeleton Arguments and oral submissions from both sides. All submissions and authorities referred to were fully considered, whether or not expressly referred to below. Supplementary witness statement from the claimant[15]The claimant sought permission on the day of the hearing to admit a supplementary witness statement. The original date for witness statements was 12 February 2025. This statement was served on 15 April 2025, the day after Skeleton Arguments were exchanged. The claimant said that the reason for this was that it was on receipt of Skeleton Arguments that they understood the respondent’s position and it was to deal with the reason why he did not include the matter of the turning circle in the previous claim.[16]The respondent opposed the introduction of the supplemental statement but was not sure how far it took the tribunal in relation to the legal issues. The claimant said that there may have been some misunderstanding from the Preliminary Hearing in January 2025 as to exactly what was to be dealt with at this hearing. The respondent said that the issues came from the authorities and not what was said at the Preliminary Hearing.[17]Ms Thomas for the respondent said that there were certain evidential points upon which she had not been able to obtain instructions.[18]I agreed with the respondent’s submission that the issues on res judicata come from the authorities and it should not have been the respondent’s Skeleton Argument that caused the claimant to understand their position. The issues for this hearing are clearly set out in the Case Management Order of 8 January 2025 at paragraph 4.[19]I took the view that as these were largely legal issues to be dealt with and noting that the respondent was not sure how far the supplementary statement took the tribunal, that I would admit it.Findings
[20]The claimant is a self-employed black cab driver and the respondent is the body that grants licenses for cab drivers in London. It regulates the standards of black cab drivers including ensuring that vehicles meet expected standards. The respondent also regulates private hire vehicles (PHV) which includes minicabs which have a different system of regulation. It is a qualifications body under section 54 Equality Act 2010.[21]Disability is admitted in terms of physical impairments to the claimant’s back being Spondylosis and Schmorl’s nodes, being arthritis in the discs of his spine.[22]The claimant brought an earlier claim against the respondent in the London South Employment Tribunal in case number 235160/2021. The respondent says that the claimant is estopped from bringing the present claim and/or it is an abuse of process. It says that the current claim involves the same cause of action and issues: namely concerning the respondent’s Conditions of Fitness (CF) document for the Construction and Licensing of Motor Taxis for Use in London. Insofar as these are new issues, the respondent says the claimant could and should have raised the issues in the earlier claim.[23]The substantive issue in this present claim is for the alleged failure to make reasonable adjustments. This concerns whether the respondent applied a PCP (provision, criterion or practice) with the Conditions of Fitness policy for black cabs to have a tight turning circle. The claimant says this put him at a substantial disadvantage compared with someone who does not share his disability because he is unable to afford to purchase a black cab with a tight turning circle and he suggests two adjustments that could be made.[24]The claimant’s case is that the respondent is in breach of the duty to make reasonable adjustments by not enabling him to purchase an affordable taxi to accommodate the disadvantage caused by his disability which means he can only work part-time hours. He says that the cost of purchasing or renting a black cab taxi is expensive and is only affordable by working full-time hours.[25]The claimant says that his earlier claim involved different issues as it was about the wheelchair accessibility of vehicles rather than the turning circle. The claimant says he relies on a different PCP for the current claim, being the requirement for a tight turning circle. He says that he could not have raised it as an adjustment in the earlier claim, as he did not know about the vehicle he now wishes to use, being the Ford MaxiCab.[26]The issues in claim 1 were set out in an Agreed List of Issues and the relevant part of this was at page 87 of the bundle: Did the R have the provision, criteria or practice (“PCP”) of requiring all taxi drivers in London to have vehicle that is wheelchair accessible? If so, does the PCP cause C a substantial disadvantage do you to his disability in comparison with taxi drivers who are not disabled? It is C’s case that it does as, a) he cannot assist wheelchair users due to his disability; b) he nevertheless is required under R's policy to have a wheelchair accessible taxi under R's Vehicle Conditions of Fitness policy; and c) he cannot afford the costs of such a vehicle as he can work only limited hours due to his disability.[27]Following Judgment in the first claim 2305160/2021, sent to the parties on 22 June 2023, the claimant continued to correspond with the respondent seeking to agree an alternative vehicle to be licensed.[28]The focus of claim 1 was the requirement in the CF document for wheelchair accessibility. The focus in the present claim is on the vehicle turning circle. It was accepted by the claimant in claim 1 and referred to in the Judgment at paragraph 123 that both of these specifications, along with others, were “core requirements” of the CF document.[29]The CF document sets out the requirements that motor taxis must satisfy. It includes at paragraph 7.1 the requirement that the taxi must “Be capable of being turned so as to proceed in the opposite direction without reversing between two vertical parallel planes not more than 8.535 metres apart”. This is known as the turning circle.[30]The Tribunal found in claim 1 (paragraphs 149-150) that the claimant was placed at a substantial disadvantage in comparison with nondisabled taxi drivers because of the reduced number of hours he is able to work due to his disability and the consequent effect upon earnings. For reasons set out in the Judgment, the tribunal found that it was objectively reasonable for the respondent not to have made the adjustments sought by the claimant.[31]The claimant accepts that the 3 vehicles which were the subject of claim 1 were not compliant with the turning circle requirement but he said those vehicles were capable of being modified to make them complaint. He said that had the vehicle he proposed been approved, he would then have sought the necessary funding which he understood to be around £12,000. The claimant’s position is that he did raise in the first claim the issue of the necessity of the turning circle but it was “not fully addressed by the tribunal probably because of my intention to get the vehicle modified” (supplementary statement paragraph 4).[32]I find that it was not “fully addressed” by the tribunal in the first claim because the turning circle requirement was not put in issue within the Agreed List of Issues between the parties.[33]In his supplemental statement the claimant said that one source of funding for the modification would be Access to Work. He said that he could not pursue an application for funding with them, whilst the issue around wheelchair accessibility remained unresolved.[34]The claimant said that the vehicle he now wishes to use is wheelchair accessible and fulfils that core requirement of the CF policy. The turning circle does not comply with the policy which is why he brings this further claim. He says: “The turning circle is now a live issue”.[35]At paragraph 11 of his supplemental statement the claimant said: “The turning circle and vehicle length issues would not have precluded me using the vehicles I relied on in my previous claim. The issue was wheelchair accessibility. The turning circle is now a live issue as it will prevent me from using the new vehicle. This is why I have brought my further claim.”[36]He accepts that if this claim is to proceed, he would also need leave to amend to include the core requirement of the length of the vehicle. This core requirement was set out at paragraph 49(e) of the Judgment in the first claim. The requirement is that the overall length of the taxi must not exceed 5 metres. The vehicle he relies on in the present claim is 5cms longer than this.[37]The issue for the claimant in relation to the vehicle he has now identified is that he says the turning circle cannot be modified. His case is that he could not have pursued a claim for reasonable adjustments in relation to the turning circle because it was “academic” when the issue of wheelchair access was outstanding. Findings made by the tribunal in case 2305160/2021[38]I set out below a number of relevant findings made by the tribunal in claim 1 in relation to the issue of the turning circle. This is not an exhaustive list.[39]At paragraph 92: Further on 27 June 2021 he wrote [to the respondent], “I am once again asking that you allow me to licence a hackney carriage vehicle that does not have the wheelchair facility…….the material differences being that the NV-200 electric van doesn’t have the wheelchair functions (which I could never use due to my disability) and it doesn’t have a turning circle”.[40]At paragraph 106: The Tribunal find that the respondent’s response did not specifically refer to the fact that the vehicle proposed by the claimant did not have an appropriate turning circle …………….The Tribunal find that the appropriate turning circle requirements are set out in the CF document at paragraph 7”[41]At paragraph 123: The Tribunal find that each of the requests made by claimant for the respondent to licence different vehicles related to vehicles that did not fit with the requirements in the CF document as the vehicles were not wheelchair accessible, did not have the appropriate turning circle, did not have the right dimensions for the passenger compartment or partition, did not have grab rails, an induction loop, taxi signage, taxi meter or credit card machine. This is not disputed by the claimant, and he accepted that these were core requirements.[42]At paragraph 162 there was reference to one of the vehicles in claim 1 not having the appropriate turning circle and this being a factor which had been identified by the claimant.[43]The tribunal considered different aspects of the CF policy in relation to the vehicles identified by the claimant within that claim – for example paragraphs 171 and 174. At paragraph 175 it referred to an argument made by the claimant in that case about the turning circle and why he said it was no longer a “useful” requirement.[44]At paragraph 178 the tribunal noted that the claimant had accepted in cross-examination the cost of modifying one of the vehicles to have the appropriate turning circle. I find that the claimant had to some degree looked into the cost of this as part of his first claim.[45]Significantly, at paragraph 205 it was unclear to the tribunal whether the claimant’s case was also that the respondent should use their discretion not to enforce the CF document requirements of an appropriate turning point.[46]At paragraph 206 the tribunal said it was unclear what modifications the claimant was proposing to carry out, including whether he would modify the turning circle. Submissions[47]There were helpful written submissions from both parties to which they spoke and which are not replicated in full here. As stated above, all submissions and authorities referred to were fully considered, whether or not expressly referred to below. The respondent’s submissions[48]The respondent submitted in terms of cause of action estoppel the issues in the previous claim are the same as in the present claim. It is a reasonable adjustments claim, the substantial disadvantage is the same and the reference in terms of the PCP is to the same CF document.[49]The adjustments sought were the same in terms of the licensing of the vehicle or the amendment of the CF policy. The claimant relies on the same physical impairment, that he can work only limited hours and that he cannot afford a taxi that meets the respondent’s requirements. The respondent submits that these issues are identical in both claims.[50]The respondent submits that at the heart of both claims is the respondent’s CF policy.[51]The claimant relies on the new vehicle not being having been manufactured at the time of the last claim. The respondent submits that this is not an answer to the res judicata argument because it is the underlying policy of the CF document. They submit that what the claimant is trying to do is have another bite of the cherry by identifying a different vehicle. The respondent posed the question, is if he is permitted to do so, where would this end? The respondent says that this cannot be right in principle, if the claimant later wants to seek another adjustment to the CF policy.[52]The respondent says that it is not the case that the turning circle was not “in play” or was not live in the previous claim. It is said that both the wheelchair access point and the turning circle are fundamental parts of the policy and that this was recognised throughout the Judgment in the first claim. It is not correct to say that the first claim was solely confined to wheelchair accessibility.[53]The respondent said that what the claimant was trying to do was to revisit or elaborate on matters already dealt with by the tribunal. By way of example the respondent highlighted paragraph 40 of the Judgment where the tribunal said they did not find the comparison of licensing for London with other licensing authorities outside of London helpful, yet in paragraph 20 of his statement the claimant referred to the position in Edinburgh.[54]The respondent took the tribunal to a number of findings made by the tribunal in the Judgment in claim 1 and examples of those are set out above. The respondent said that claim 1 was not just about wheelchair accessibility; the question of the turning circle was a “front and centre point”.[55]It was accepted by the tribunal in claim 1 that the turning circle was one of the core requirements. The respondent said that the where the “mischief” lies is that this was not sufficiently advanced by the claimant in the first claim when it should have been.[56]The respondent said that what may then happen is that the claimant may “attack” other elements of the policy and he now seeks to amend to include the requirement as to the length of the vehicle. The respondent submits that this is repeated litigation and the claimant should not be allowed to make a “piecemeal approach” to the policy and “have another go”. The claimant’s submissions[57]The claimant’s position was that cause of action estoppel did not apply in this case because the cause of action is different to the first claim. The claimant relies on a different vehicle, which unlike any of the vehicles in the first claim, is wheelchair accessible. The claimant also said that the PCP is different, relying on the turning circle which was not in issue in the first claim.[58]The claimant submits that issue estoppel does not apply because the issues are not identical to those relied upon in the first claim and findings of fact were not made on the turning circle. No determination has been made in relation to the turning circle. The claimant does accept that the issue of the turning circle was referred to in the first claim.[59]In relation to the rule in Henderson v Henderson the claimant says that the vehicle relied upon in the present claim was not available at the time of the earlier proceedings and the respondent has produced no evidence to the contrary. The claimant says that although he did raise the issue of the turning circle in the first claim, the tribunal did not determine the matter because it was not necessary for them to do so.[60]The claimant submitted but this was not the same case. Claim 1 was based on real vehicles which the claimant had suggested as alternatives to operate a London taxi. The issue in claim 1 was about wheelchair accessibility. That was the PCP he relied upon and anything else was academic because if the alternative vehicles were not wheelchair accessible, they were ruled out. That was the end of the case and the claim could go no further.[61]The new vehicle is wheelchair accessible. There are two other issues: the turning circle and the length, as it is too long by 5 centimetres. The reason the claimant did not bring this argument in the first claim is because the vehicle was not available, it is new to the market. The cost issues still applied.[62]The claimant submitted that as with strike out applications under Rule 38, the tribunal needs to be very careful in striking out a discrimination claim on res judicata grounds. Henderson v Henderson is about abuse of process. There is public importance in dealing with discrimination claims on their merits. There is discretion for the respondent to modify their policy as set out in paragraph 8 of the claimant’s written submissions. A vehicle can be exempted from requirements on a request from the applicant if, having regard to exceptional circumstances, it is reasonable to do so.[63]The claimant also submits that this is not harassment of the respondent. There is no collateral attack on the previous decision, there is no dishonesty involved. He is simply saying, there is a new taxi available and he would like to use it. He is seeking to maintain his position in the workforce.The relevant law
[64]Cause of action estoppel prevents the re-litigation of a claim which has already been decided between the parties. Issue estoppel prevents a party from seeking to pursue a claim relying on the same facts which are the subject of a prior claim between the same parties.[65]The distinction between cause of action estoppel and issue estoppel was set out by the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd 2014 AC 160 at paragraph 20: “Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened. Issue estoppel may arise where a particular issue forming 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.[66]In cases where issue estoppel is raised as a defence in subsequent proceedings, it is generally essential that the issues in those proceedings are identical with those that were determined in the earlier proceedings and also that the findings of fact in the judgment in those earlier proceedings are clear and precise – see Jones v Mid-Glamorgan County Council 1997 ICR 815 CA at page 819 which quotes from O’Laoire v Jackel International Ltd (No. 2) 1991 ICR 197 CA.[67]The rule in Henderson v Henderson 1843 3 Hare 100 is a wider form of issue estoppel which says that a claimant can be barred from bringing a different claim from the one which has been decided if with reasonable diligence that claim could have been put forward in the original claim. There is discretion for special circumstances. Sir James Wigram V-C said: ''… where 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 the whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case. A 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 a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.''[68]In Talbot v Berkshire County Council 1994 QB 290 the Court of Appeal in discussing the rule in Henderson v Henderson said: “The rule is thus in two parts. The first relates to those points which were actually decided by the court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second is not a true case of res judicata but rather is founded on the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation; the court will stay or strike out the subsequent action as an abuse of process”.[69]The underlying public policy was set out by the House of Lords in Johnson v Gore Wood & Co 2002 2 AC 1 that there should be finality in litigation and that a party “should not be twice vexed in the same matter” or to “avoid the oppression of subjecting a defendant unnecessarily to successive actions”.[70]In Johnson v Gore Wood Lord Bingham set out a broad merits based approach. “…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 earlier 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…………. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.”[71]Lord Millett said in Johnson v Gore Wood: “It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by Article 6….”.[72]A party’s reasons for not raising the issue earlier should be examined: James v Public Health Wales NHS Trust EAT 0170/14 (at paragraph 53).Conclusions
[73]In the first claim the tribunal considered three applications made by the claimant to license vehicles. They made a finding that it was objectively reasonable for the respondent not to have licensed any of the three vehicles and there was no failure to make reasonable adjustments.[74]The PCP in issue in the first claim was the requirement for wheelchair accessibility. It is one of the core requirements of the Conditions of Fitness policy in respect of the licensing of vehicles.[75]The claimant now brings a reasonable adjustments claim in respect of another of the core requirements of the Conditions of Fitness policy; this time the turning circle. The claimant describes his as now being a “live issue”. He accepts that he raised the matter of the turning circle in the first claim (submissions paragraph 36 and Judgment paragraph 175).[76]It is clear from the Judgment and the paragraphs quoted above, that the turning circle was very much “in play” as the respondent said, in those proceedings. The claimant knew of the requirement for vehicles to have a certain turning circle and the vehicles he had identified in claim 1 were not compliant. He proposed to seek modification of the turning circle, which he says is not possible with the vehicle identified in the present claim.[77]Both the first and second claims are between the same parties, are both for reasonable adjustments, based on the same physical impairment, relying on the same substantial disadvantage and the requirements of the CF Policy.[78]I agree with the claimant’s submission that the claim is not the same case and therefore it is not cause of action estoppel. It is a claim related to a different PCP being the turning circle and not the wheelchair issue. It is not the same issue being relitigated.[79]On the question of issue estoppel and following Jones v Mid- Glamorgan I find that the issues in the current proceedings are not identical with those determined in the first claim.[80]I have gone on to consider the rule in Henderson v Henderson.[81]On my finding the subject matter in the present proceedings is directly related to the original proceedings in case number 2305160/2021 and could with reasonable diligence have been put forward within that claim.[82]The issue of the turning circle is a point which properly belonged to the subject of that litigation and which the claimant, exercising reasonable diligence, could have brought forward in that claim.[83]The claimant was aware of the core requirements of the CF policy when he brought his first claim. The issue of the turning circle was not something new that came to light after the hearing of the first claim. He knew that the vehicles he identified in the first claim were not compliant with the turning circle requirement. His reason for not advancing it in the first claim was that it was “academic” because of the wheelchair accessibility issue.[84]I asked what the position would have been if he had succeeded in the first claim and then hit an issue with the turning circle. I was told that this would have been a new issue. I find that it would have been a new issue and it is one that could have been put forward in the original claim[85]As I have said above, the question of the turning circle was “in play”. At paragraphs 205 and 206 of the judgment, the tribunal was unclear whether the claimant’s case was also that the respondent should use their discretion not to enforce the CF document requirements of an appropriate turning circle or what he proposed to do about it. I find that he could have made this clear by putting it in issue for the tribunal.[86]Although this claim relates to a different vehicle and a different PCP it is a claim seeking exemption or modification of one of the core requirements of the CF document. The claimant also seeks to amend to include another of the core requirements. These are matters that could have been included in the first claim. Had the claimant succeeded in claim 1, he could have hit an issue with the turning circle or potentially another core requirement, which would then, as now, have necessitated further litigation.[87]I accept on the issue of abuse of process, that there is no collateral attack on the previous decision there is no dishonesty involved. I have to take account of both the public and private interests involved. I accept the claimant’s submission as to the purpose of the legislation which is to try and ensure as far as possible that disabled people such as he, can participate in the workforce instead of relying on State benefits. I also accept the claimant’s point that care should be taken before striking out a discrimination claim.[88]At the same time, the respondent is a public body, the time and cost of the litigation is from public funds. There is also a public interest in finality of litigation and this claim would involve a further trial of the core requirements of the CF document which were already in issue in claim 1. The question of the turning circle was ventilated in claim 1 and could have been put in issue without the need for a second set of proceedings.[89]The respondent posed the question, where would this end? In allowing this claim to proceed, there would be nothing to stop the claimant bringing a further claim, should he seek to challenge another core element of the CF document.[90]I find that this present claim is in contravention of the rule in Henderson v Henderson such that the respondent ought not to be brought into or “vexed” with a second set of proceedings where one set of proceedings should have sufficed.[91]For these reasons it is struck out as an abuse of process under the rule in Henderson v Henderson.