Samuel v Waterlows [1997] UKEAT 50_97_1510

EAT
Samuel v Waterlows
[1997] UKEAT 50_97_1510 · 1997-10-15
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether Mr Samuel has an arguable point of law from a decision of an Industrial Tribunal Chairman sitting alone which is contained in a written decision dated 20th December 1996. By that decision the tribunal dismissed Mr Samuel's Originating Application which he had brought against his former employers, Waterlows, by consent and on its withdrawal by the applicant.The circumstances giving rise to that decision are these. The Originating Application in these proceedings was signed by Mr Samuel on 23rd May 1994, notwithstanding that it appears to have been presented to the office on 31st October 1995. A previous decision of the London (South) Region made on 22nd February 1994 was incorrectly dated and it manifestly should have been dated 22nd February 1995. By that decision an Industrial Tribunal Chairman exercising the powers conferred on him by Rule 4(7) of the Rules of Procedure, struck out Mr Samuel's then complaint against Waterlows because he had failed to comply with an order for particulars. The tribunal continued:"6 That claim appeared to me to be almost identical to the claim Mr Samuel now brings before me and furthermore it seems that the Originating Application before me is a photocopy of an application made by Mr Samuel which formed the basis of proceedings in the London South Tribunal under case number 30957/1994." [ That being the reference number of the Order to which I have referred. ]The tribunal indicates that Mr Purnell, Mr Samuel's adviser representing him at the hearing, had said that his instructions were that this was an application in identical form to that before the London (South) Industrial Tribunal which had already been dismissed. The Chairman then reminded Mr Purnell of the doctrine of res judicata and issue estoppel and gave him an opportunity to consider the matter further with Mr Samuel. The tribunal's decision continues:
"10. ... Responsibly Mr Purnell returned before me to say that his instructions are that Mr Samuel now wishes me to dismiss the Originating Application which is before me today on withdrawal by him. I am pleased to do so. The Originating Application is dismissed forthwith."
The tribunal Chairman then noted that there was some possibility that the decision of the Industrial Tribunal made in February 1995 was under appeal and awaiting determination before the Employment Appeal Tribunal.This is an appeal against the decision to which I have just referred. It seems to us manifestly clear that it is not within our power to hear this appeal. It was a decision which was arrived at by consent and on withdrawal by the applicant. But in any event, it seems to us plain that the Industrial Tribunal Chairman was correct in striking out the Originating Application as it was no more than a repetition of what had already been advanced and what had been dismissed by a previous Industrial Tribunal.It is an abuse of the process of the Court to repeat a claim previously dismissed.Mr Samuel says that he is doing this because he has read a circular from his union dated May 1994 which alerted union members to rights following a House of Lords ruling on part-time workers rights in respect of unfair dismissal and redundancy compensation. That of course was a circular which was in existence well before his first set of proceedings were struck out.Despite the way in which Mr Samuel has conducted himself today, we regret that we are unable to provide him with any assistance in this matter. It seems to us that we should dismiss the appeal. Mr Samuel has indicated that he would like to appeal our decision. I have indicated to him that we do not think it appropriate to grant leave in this case as we can see no arguable point of law in favour of allowing the appeal. Therefore, if he wishes to take the matter further, it is to the Court of Appeal that he must apply for leave.