MS K AKO v (1) ROTHSCHILD ASSET MANAGEMENT LTD (2) BOSTON SAFE DEPOSIT & TRUST COMPANY [2001] UKEAT 103_00_0802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 103_00_0802Case No Appeal No. EAT/103/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS K AKOAPPELLANT(1) ROTHSCHILD ASSET MANAGEMENT LTD (2) BOSTON SAFE DEPOSIT & TRUST COMPANYRESPONDENT
Before
Mr Justice LindsayDate 8 February 2001
[1]APPEARANCES For the Appellant MISS KARON MONAGHAN (of Counsel) Commission for Racial Equality Elliott House 10-12 Allington Street London SW1E 5EH For the First Respondents For the Second Respondents MR DESHPAL PANESAR (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL THE SECOND RESPONDENT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : We have before us as a full hearing the appeal of Ms Kate Ako in the matter Ako v(1) Rothschild Asset Management Ltd(2) Boston Safe Deposit & Trust Company Ltd . The appeal raises, inter alia, questions as to estoppel per rem judicatam. The context is one in which the applicant, shortly after the issue of her IT1, wished to withdraw it and where the tribunal then dismissed it upon such withdrawal. Then, shortly thereafter, she launched a fresh IT1 going over the same ground. That is only one of the issues that are raised in the appeal as a whole but we have separated it out from the rest of the case. It raises questions as to the applicability of Barber v Staffordshire County Council [1996] IRLR 209 CA . We have had before us today Ms Monaghan on behalf of Ms Ako and Mr Panesar for the first respondent. The second respondent, Boston, takes no part in the appeal and does not wish to oppose it. We need to say a little of the chronology of the matter. On 18th June 1999 Ms Ako's first IT1, in a case marked with numbers which ended 51/99, was presented to the Employment Tribunal. Her "Box 1" was not completed. The employment, she claimed, was from July 1993 to May 1999 and the employer against whom she made the claim was apparently Rothschild Asset Management Ltd ('RAM'). In her IT1, although Box 1 was not completed, Box 11 was and there she said:
"The First Respondents are Rothschild & Sons Ltd. … The Applicant was employed as a secretary with Rothschild Asset Management Ltd, a subsidiary of the Respondent company from July 1993 to May 1999 when she was dismissed."
She claimed that she had been unfairly selected for redundancy. So far as concerned racial discrimination, she said:
"Further, the Applicant suffered continuous discrimination throughout the course of her employment under S4(1)(c) of the RRA 1976 and was eventually dismissed on the grounds of her race contrary to S1(1)(a) of the RRA 1976."
We are told by Ms Monaghan today that Ms Ako is black, of African origin. The next stage in the chronology is 28th June 1999 when Ms Ako wrote to the Employment Tribunal to withdraw case 51/99. It was a very simple letter, it said:
"I write to withdraw my application against Rothschild Asset Management Limited. Thank you. Yours faithfully"
It is signed Kate Ako. It was stamped as received by the Employment Tribunal on 30th June 1999. So only a short interval had elapsed after the presentation of the IT1 on 18th June 1999.[2]On 6th July 1999 the 'Decision' of the Employment Tribunal was sent to the parties. It had been signed on 2nd July 1999 by a Chairman. There were no summary or extended reasons and it simply said:
"DECISION The application is dismissed on withdrawal by the applicant."
It is signed and then there is a signature which no one has been able to interpret, followed by the typed word 'Chairman' and the date, 2nd July 1999. At the foot of the page is written:
"Decision sent to the parties and entered in the Register on 6 July 1999"
There is then a signature at the foot of the decision on behalf of Miss Humphrys of Stratford Employment Tribunal for the Secretary of the Tribunal. There was no appeal against that decision and no request for its review.[3]On 12th July 1999 (so, again, one sees it was only a short time afterwards) Ms Ako served a second IT1; this time Box 1 was completed and it says:
"1. Unfair dismissal contrary to the Employment Rights Act 1996. 2. Unlawful Racial Discrimination contrary to Race Relations Act 1976."
That was given the number that ended 67/99. Again, the dates of employment remained July 1993 to May 1999. This time, though, there are two respondents, firstly RAM and secondly Mellon Bank. Ms Ako still asserts employment with RAM and she does that by saying:
"The First Respondents are Rothschild Asset Management Limited (RAM) of New Court, St Swithin's Lane, London EC4P 4DU, the Asset Management Company. The Applicant was employed as a secretary with RAM from July 1993 to May 1999. Within the company the Applicant worked for the Securities Processing Department (SPD) and the Institutional Sales Department (ISD)."
She now alleged that she had been told that there had been a transfer of undertakings in respect of the Institutional Sales Department in which she had worked. The transferee, as she understood it, was Mellon Bank. So far as concerned her case against RAM, she said, by way of summary:
"The redundancy is not genuine. Even if the redundancy was genuine the Applicant was unfairly selected. The Respondents failed to consult or consider the Applicant for alternative employment. Further, the dismissal is automatically unfair as it was connected with the transfer of undertaking under Regulation 8(1) TUPE. Further, the Applicant suffered continuous discrimination throughout the course of her employment under S4(1)(c) of the RRA 1976 and was eventually dismissed on the grounds of her race contrary to S1(1)(a) of the RRA 1976."
So far as concerned her case against Mellon, she said that it was Mellon which had conducted the interviews which had led to the redundancy, and she said against Mellon:
"The redundancy is not genuine. Even if the redundancy was genuine the Applicant was unfairly selected. Further, the dismissal is automatically unfair s it was connected with a transfer of an undertaking under Regulation 8(1) TUPE and the Applicant was not selected on the grounds of her race contrary to S1(1)(a) of the RRA 1976."
So that was the nature of her fresh claims.[4]On 5th August 1999 RAM lodged its IT3 to no. 67/99. It mentioned the withdrawal of the first IT1 and it said:
"5 The First Respondent's case is that the Applicant is barred by the principles of estoppel and res judicata from bringing the Second Application against the First Respondent. The application against the First Respondent must be struck out forthwith. The First Respondent relies in particular on the case of Barber –v- Staffordshire County Council [1996] IRLR 209 ."
There was also a denial on the merits of the case should paragraph 5, thus quoted, fail.[5]On 6th August 1999 Mellon Bank's IT3 was received. It alleged that there had been a TUPE transfer concluded by 1st December 1998 but from RAM not to Mellon but to Boston Safe Deposit & Trust Company, which was a subsidiary of Mellon. Mellon invited Ms Ako to amend her IT1 accordingly. Mellon continued:
"The Second Respondent will contend that the Applicant was never employed by either it or Boston Safe and that her claims against it (and/or Boston Safe) should be struck out."
Mellon asked for a preliminary hearing to deal with the nature of the TUPE transfer and whether Ms Ako's work for TUPE purposes had fallen within the work of those "assigned" to the parts transferred to Mellon.[6]We have not got the next stage in the chronology but it is quite plain that at some stage Mellon was struck out as respondents and Boston were added in their place; no question arose in relation to that. So, thereafter, there were two respondents, first RAM and, secondly, Boston.[7]On 11th October 1999 a preliminary issue was heard by the Employment Tribunal under the chairmanship of Ms V Gay. Whereas the respondents were each represented either by Counsel or by a solicitor, Ms Ako appeared in person.[8]On 20th October 1999 the decision was sent to the parties and it was as follows:
"The unanimous decision of the Tribunal on the preliminary issue is that the Applicant's claim against the First Respondent has already been disposed of judicially and that there is thus cause of action estoppel such that it cannot now be pursued in this Tribunal. In respect of the Second Respondent, applications for preliminary hearings were refused and directions were given as further set out below."
[9]On 1st November 1999 Ms Ako asked for a review. On 18th November 1999 the tribunal's decision on the review was sent to Ms Ako. It was held that the application for review was declined as it had no reasonable prospect of success and detailed reasons were given for that view.[10]On 1st December 1999 Ms Ako lodged a homemade Notice of Appeal. On 8th January 2000 she added typed further and better particulars grounds of appeal; they were dated 8th January 2000.[11]On 31st March 2000 there was a preliminary hearing at the Employment Appeal Tribunal. By now Ms Monaghan had come in to act for Ms Ako and represent her. The matter was directed to go to a full hearing and leave was given to substitute fresh grounds of appeal. Boston then or thereabouts indicated it did not oppose the appeal. The present amended Notice of Appeal refers us to the Barber case and raises questions such as exactly what did Barber decide, did Barber oblige the tribunal to conclude as it did and is Barber wrong? Plainly it binds us but we could receive an argument that it was wrong and pass it on, so to speak. Further questions arise also: if Barber is correct and applicable in this case, would that not involve breaches of Article 6? Those are not the only questions raised before us, but they are the chief ones.[12]But before we revert to the tribunal's decision in more detail, it would be as well to set out some at least of the relevant Employment Tribunal Rules and for us to refer to one statutory provision. Proceedings begin before an Employment Tribunal with an Originating Application and Rule 1(1) begins:
"Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application, which shall be in writing and shall set out- …"
It then sets out the requirements; name and address and the grounds and so on. A copy of that is then sent to the respondent; that is provided for in Rule 2:
"Upon receiving an originating application the Secretary shall- (a) send a copy of it to the respondent; (b) give every party notice in writing the case number of the application …"
Then it provides further about sending out notice. The respondent then has to enter an appearance; and that is under Rule 3(1):
"A respondent shall, within 21 days of receiving the copy of the originating application enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance- (a) setting out …"
Again, there are provisions as to addresses, whether there is an intention to resist and the grounds of resistance and so on. Rule 3(2) is as follows:
"A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except- …"
Then there are a number exceptions which are not relevant in any way in this case. So that is how, in the ordinary way, proceedings start. Then one goes to Rule 13:
"(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure. (2) A tribunal may- (a) if the applicant at any time gives notice of the withdrawal of his originating application, dismiss the proceedings. …"
Under Rule 13(3) there is a provision that certain kinds of decision require prior notice to be given to the respondent, but they do not include a decision under 13(2)(a). So that, on the face of things, there is no obligation to warn a respondent that the case against him is about to be withdrawn. Rule 13(8) says:
"Any act required or authorised by the rules to be done by a tribunal may be done by a chairman except …"
Then there are a number of exceptions which we have in mind but need not read. As to joinder of other parties, which may have been an appropriate procedure in this case, Rule 17(1) provides:
"A tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary."
Proceedings can be combined as is clear is Rule 18. Rule 20 is headed "Notices, etc." and makes provision, that we have in mind, for service, but it will not be necessary to read them. We mentioned that there would be one statutory provision at least that needed to be referred to, and that is section 203 of the Employment Rights Act 1996 : "(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports- (a) to exclude or limit the operation of any provision of this Act, or (b) to preclude a person from bringing any proceedings under this Act before an employment tribunal. (2) Subsection (1)- (a) does not apply …" and then there are a number of cases in which it does not apply. There is no statutory provision precluding a party withdrawing, of its own motion and unprompted by any agreement, a claim that it has presented to the Employment Tribunal.[13]Going then to the Employment Tribunal's decision sent to the parties on 20th October 1999, the tribunal, under the heading " Relevant Law " said, inter alia:
"… The doctrine of res judicata and cause of action estoppel apply not only to a judicial determination made after an investigation of the facts and the hearing of evidence, but also to the formal dismissal by a Tribunal of a claim withdrawn by the Applicant, see Barber –v- Staffordshire County Council [1996] IRLR 209, a decision of the Court of Appeal. In that case Mrs Barber presented an Originating Application in November 1992 claiming a redundancy payment, on the basis that she could aggregate her employment at three different schools concerned so as to meet the minimum hours per week qualification then required for a statutory redundancy payment. Shortly before the date of the hearing, her representative became aware of the decision of the House of Lords in Lewis –v- Surrey County Council , to the effect that it was impermissible to aggregate hours worked per week under separate current contracts with the same employer, and in consequence, at the hearing on 5th May 1993 Mrs Barber's claim was withdrawn without evidence being heard. The Tribunal's decision, signed by the Chairman, was entered in the register as follows: "
The unanimous decision of the Tribunal is that this application is dismissed on withdrawal by the Applicant."" There then followed a long citation from the Barber case which followed a short passage in which the tribunal, summarising their understanding of Barber , had said: "… On 3 May Mrs Barber presented a further Originating Application against seeking a redundancy payment and compensation for unfair dismissal. In the Employment Tribunal a Chairman determined that no part of the proceedings was subject to the principle of res judicata or cause of action estoppel because Mrs Barber was entitled to rely upon a claim directly under European community law. The matter came to be considered by the Court of Appeal where Neill LJ, giving the decision of the court said …" and that is where the long citation from Barber was set out. We will be returning to Barber in more detail.[14]So far as concerned findings of fact that are of particular relevance, the tribunal below said, at their paragraph 3:
"(i) … (ii) … (iii) At or about the time she posted the first Originating Application to the Tribunal, the Applicant was in communication with the Commission of Racial Equality. She sent them a copy of the Originating Application and made an application for assistance. (iv) The CRE responded by inviting her for interview. We have been given the notes of interview, hand-written by a Mrs Ratnam who works there. It appears that the Applicant was advised: (a) to send Mrs Ratnam a copy of her Race Relations Act Questionnaire, (b) to send Mrs Ratnam a copy of the new Originating Application which it was proposed should be sent naming not only Rothschild Asset Management Ltd but also Mellon Bank (for which the Second Respondent's name is now substituted); (c) to send a letter to the Employment Tribunal withdrawing the Originating Application which had already been presented and to send a copy of that letter to Mrs Ratnam. There was further advice, not relevant to these proceedings."
Then continuing with the facts, at (v) onward, the tribunal said:
"(v) The Applicant telephoned the Employment Tribunal shortly after her interview and inquired whether Rothschild Asset Management Ltd had put in a Notice of Appearance in response to her Originating Application. On being told that they had not, she said that she would withdraw her Originating Application and would soon confirm that in writing. Nothing was done in response to her telephone assertion. (vi) On 30 June 1999 the Tribunal received a letter from the Applicant dated 28 June 1999 which read as follows: "3201851/99 I write to withdraw my above application against Rothschild Asset Management Ltd. Thank you. Yours faithfully Kate Ako". (vii) In consequence of that letter an administrative clerk printed out and put before a Chairman a standard form decision naming the Applicant and the Respondent and providing for dismissal of her claim. That was done on 30 June 1999. (viii) On 2 July 1999 a Chairman considered the file, which contained both the note of the telephone conversation and the Applicant's letter of 28 June 1999, and signed the document headed Decision, which read in full: "
The application is dismissed on withdrawal by the Applicant." That Chairman heard no evidence and did not sit in an open Tribunal room." Without dealing with how far this evidence was truly material, we go, as the tribunal did, to reflect upon Ms Ako's underlying intent. In their (ix) the tribunal said:
"The Applicant never intended not to proceed against Rothschild Asset Management Ltd. It was at all material times her intention to replace the Originating Application which she had withdrawn with one which named both Rothschild Asset Management Ltd and the present Second Respondent."
She had guided herself, it seems, by reference to a textbook. In their (xii) the tribunal said:
"The Applicant told us that she checked with colleagues that it was alright to withdraw her claim before doing so and that she went to the library at a college in Hertfordshire where she is studying law. There she obtained a book by John Angel called "
How to prepare yourself for an Industrial Tribunal". This book was published in 1980 and she had the first edition. It made no reference to any statute later than 1978 or any statutory instrument later than 1980. At page 126 Mr Angel wrote that after withdrawing a claim an Applicant could make a second application provided it was in time and he cited Sidney –v- Watts Countrymade Foods (above)." That reference to "above" is to " EAT/453/78 , a decision of the EAT on 15 February 1979, The tribunal took the view that the claims by Ms Ako in the first and second IT1s were substantially the same. In their (xiii) they said:
"The claims set out in the first Originating Application and those which now come before us in respect of the First Respondent are identical. The second application is somewhat more fully worded, but both make exactly the same claims of race discrimination throughout the course of the Applicant's employment (1993-99), race discrimination by way of dismissal in May 1999, unfair dismissal by way of unfair selection for redundancy and unfair dismissal as being automatically unfair in connection with a transfer under Regulation 8 of the Transfer of Undertaking (Protection of Employment) Regulations."
The tribunal held:
"4 …The Tribunal is satisfied that at the time when the Applicant wrote to the Tribunal on 28 June and when the Tribunal considered the matter on 2 July, the Applicant intended to withdraw the Originating Application containing the claims against Rothschild Asset Management Ltd. She did not intend, understand or know that she would not be permitted to pursue those claims further and she would not have asked for the application to be withdrawn had she known that."
Then in relation to the nature of the Chairman's act, they said:
"4 … The act of the Chairman in coming to the decision that it was appropriate to dismiss the application on withdrawal by the Applicant was a judicial act, albeit not done in open court. The obligation on the Chairman to be satisfied of the matters now set out in Section 203 of the Employment Rights Act 1996, to act in accordance with Regulation 13(2)(a) of the Employment Tribunal (Constitution and Procedure) Regulations 1993 and to satisfy himself that the Applicant had genuinely and unequivocally applied to withdraw her Originating Application are all aspects of the judicial function which were exercised on that occasion. We are satisfied that as between the Applicant and the First Respondent, each claim which she now makes is res judicata, having been dismissed on 2 July 1999. …"
Then at the foot of their paragraph 4 the Tribunal adds:
"… We have considerable regret for the plight in which the Applicant now finds herself (convinced that she has been the victim of discrimination, having made two complaints in time against the primary discriminator, as she sees it, and now unable to have those complaints adjudicated upon their merits), nonetheless, we recognise that the fair administration of the law requires that there must be finality in litigation and we are satisfied that, in the circumstances here prevailing, that finality was achieved on 2 July 1999 when a Chairman acting judicially, dismissed the very claims which the Applicant now seeks once more to pursue."
Accordingly, the case against RAM could not proceed, but directions were given as to Ms Ako's case against Boston.[15]It will have been seen that the tribunal's reasoning depends entirely on Barber and we must therefore look carefully at Barber to see just what it says.[16]In Barber the facts were that in November 1992 Mrs Barber had presented her IT1 for redundancy payments. There must have been an IT3 in the case. There may have been directions, if only standard form directions; there might even have been a directions hearing. The hearing in Barber was some six months after the presentation; it took place on 5th May 1993 and it was a public hearing. Shortly before that public hearing, (indeed, it seems to have been the very day before) Mrs Barber's advisers encountered a House of Lords' authority which torpedoed her case. It seemed that she did not have the necessary qualifying requirements to make the kind of case she was making. There was then discussion between her advisers and, it would seem, between her advisers and the respondents' Counsel on behalf of Staffordshire County Council. The employers were told that her claim would be withdrawn. A letter was then sent to the Regional Officer of the Employment Tribunal by the respondent, Staffordshire County Council. It said, as cited by the Court of Appeal:
"… [Mrs Barber's representative] has indicated his intention to withdraw the application due to be heard tomorrow, 5 May … and in turn I have indicated I would have no application to make on behalf of Staffordshire County Council. Therefore, on the understanding that in these circumstances the application will now be dismissed I do not propose to attend tomorrow's hearing."
So far as one can tell, the respondent Council did not attend the hearing on the next day, 5 May 1993. There is no reason to think that Mrs Barber's representatives did not attend at the hearing on the next day; one would have expected them to attend. At that hearing Mrs Barber's case was withdrawn and the Employment Tribunal dismissed it. Quite what was said and done on the day beyond that we cannot be sure. The hearing was before a full tribunal, namely, a chairman and two lay members. The tribunal recorded its decision:
"The unanimous decision of the tribunal is that this application is dismissed on withdrawal by the applicant."
Continuing with the facts in Barber , on 3rd March 1994, in a quite different case in the House of Lords, it was held that the qualifying condition which had seemed to bar Mrs Barber's case was in fact itself discriminatory and contrary to Community law. This reopened a door that Mrs Barber would have thought had been thoroughly shut. On 3rd May 1994, two days less than a year after the withdrawal of her first proceedings, she lodged a new IT1 claiming redundancy payments and unfair dismissal. The Staffordshire County Council, faced with the new IT1, asserted in answer a plea of res judicata. They said (again relying on the Court of Appeal's citation):
"… In addition the council raised a plea of res judicata which was framed in these terms: '(2) The application relates to the same termination of employment as was dealt with in application 61096/92, an application that was dismissed on withdrawal by the applicant.'"
The Employment Tribunal in Barber held that Mrs Barber could proceed. The tribunal took the view that no part of the case was truly res judicata and no question of issue estoppel arose. However, at the Employment Appeal Tribunal it was held that cause of action estoppel and issue estoppel did apply. It was held that the withdrawal, coupled with the dismissal, was not a mere administrative act. The dismissal was, it was held, under what is now Rule 13(2)(a), which conferred a discretion. The Employment Appeal Tribunal said it would be an abuse of process to raise that that which could have been raised in the earlier withdrawn and dismissed proceedings. The matter went to the Court of Appeal and the Court of Appeal dismissed the appeal and refused to leave for it to go the House of Lords. Neill LJ gave the only reasoned judgment in the Court of Appeal which attracted the agreement of Auld LJ and Sir Iain Glidewell.[17]It is important to see why the Court of Appeal decided as it did in Barber . At the Employment Appeal Tribunal Mummery J had drawn attention to Rule 12(2)(c). It was identical to the present Rule 13(2)(a) save that the words "if it thinks fit" no longer appear, but that is a difference which seems to us to be of no significance. In paragraph 16 in the decision of the Court of Appeal, there is a reference to the Employment Appeal Tribunal's judgment in Barber as to which the Court of Appeal says:
"Mummery J drew attention to the wording of rule 12(2)(c) of the 1985 Regulations which was in these terms: 'A tribunal may, if it thinks fit – … (c) if the applicant shall at any time give notice of the withdrawal of his originating application, dismiss the proceedings.' He pointed out that the rule conferred a discretion on the tribunal whether or not to dismiss the proceedings. Accordingly it was not a mere administrative act."
But, within the judgments in the Court of Appeal there is, as it seems to us, no conclusion that because of the way in which that rule was cast, then without more , there was a judicial judgment rather than a mere administrative act. In the important paragraphs 30 and 31 Neill LJ says this:
"In my judgment, however, Mummery J was correct when at 11B of the transcript of his judgment he said that there was nothing in the principles of cause of action or issue estoppel which stipulated that they could only apply in cases where a tribunal had given a reasoned decision on the issues of fact and law in the previous litigation. Section 140 of the 1978 Act contains provisions which render void any agreement to preclude a person from bringing proceedings before an industrial tribunal. A tribunal has therefore to be satisfied that a withdrawal is properly made. I am satisfied that the order which was made by the industrial tribunal on 5 May 1993 was a judicial decision made by the industrial tribunal in the exercise of its powers under the 1978 Act and the 1985 Regulations. It was not a mere administrative act."
If the exercise of a discretion under what is now 13(2)(a) without more, invariably constitutes what is, for the purposes of the doctrine of res judicata, a judgment, then the Court of Appeal could very simply have said so. They would merely have had to agree with the Employment Appeal Tribunal. But the way in which they agreed with the Employment Appeal Tribunal was far more limited, as those opening words after "In my judgment, however Mummery J was correct" show. Neill LJ plainly relies upon section 140 of the 1978 Act. He mentions the section or that Act twice in those two paragraphs. Although the wording of section 140 in some respects differs from the present corresponding section 203, for all material purposes they are identical. In Barber one can readily see that the Employment Tribunal would be concerned that an agreement that might fall within section 203's predecessor, (s.140), might well have been the operative cause of the applicant's intention, presumably indicated orally by the applicant to the Employment Tribunal at the hearing, that she wished to withdraw her case. After all, both sides there were thoroughly involved in the proceedings. The substantive hearing was imminent. The case had already lasted for some six months. There had been discussions between the parties and that fact had been indicated to the Employment Tribunal. The applicant's intention to withdraw had been first indicated to the tribunal not by Mrs Barber's own side but by the Council respondent. The fact that the Council in turn indicated to the tribunal that it would have no application to make, (presumably referring to there being no application as to costs) was at least consistent with, or even suggestive of, a consensual dealing between the two sides. In such circumstances, the tribunal would have every reason to wish to look into whether an agreement within section 140 (now s.203) existed and if it did, whether it offended the Act and whether the proposed withdrawal should be allowed to pass on to be a permitted dismissal. Moreover, in that case, it was well within the bounds of possibility that the respondent had suffered prejudice from the existence of the proceedings, if only as to costs. In Barber the tribunal had the applicant's representatives before it and could satisfy itself by raising questions. There was a hearing although we do not know exactly what was done at that hearing.[18]By contrast in Ms Ako's case, there was no indication that RAM had even "appeared" within the meaning of provisions of Rule 3(1). Indeed, it seems that there was no appearance. The position, if that was so, was thus that there was no respondent even entitled to take any part in the proceedings under Rule 3(2). Mr Panesar, on behalf of RAM says, on instructions, that the IT1 had been received by RAM before its withdrawal or dismissal. So this next point may have little weight, but strictly speaking, there is no evidence that Ms Ako's IT1 had even been served on the respondent under Rule 20 or even that they knew of it before the withdrawal. The interval between presentation of the IT1 and the stated wish to withdraw was not more than 11 days. There was no hearing. No party appeared to explain anything to the Employment Tribunal Chairman in Ms Ako's case. There is no reason to suggest that section 203 was considered by the Chairman or, indeed, that anything, save the file, which would have been a slim one, was considered by him. The file included, as it seems, a draft standard form order already prepared for his signature. It is almost impossible to see how the respondent could have suffered any real prejudice by reason of the existence of the proceedings or their withdrawal, although, again, we make, in Mr Panesar's favour, the observation that he tells us, on instructions, that RAM had begun the task of drawing up some response to the IT1 even before they appeared, which they never did. The tribunal had no reason, given the apparently unilateral nature of the so-called proceedings as we have described them, to think that there was any agreement that could fall within section 203 or that any such agreement played any part at all in the withdrawal that was indicated in Ms Ako's letter. Her letter mentions no agreement. No other party was, so far as the Employment Tribunal knew, by then involved in the proceedings. There is no mention of discussions and negotiations with anyone or that the wish to withdraw was engendered by any negotiations or agreement with anyone and there was communication to the tribunal from the respondent in relation to the case.[19]In the circumstances, we distinguish Barber because the probable or even merely possible involvement of section 203's predecessor in Barber , an involvement which was central to the conclusion that there was not merely administrative act but a true judicial decision for the purposes of the doctrine of res judicata, has, in our view, no equivalent in Ms Ako's case. Moreover, we believe that our view accords with the definition of cause of action estoppel which Barber adopted. In paragraph 28 in Barber Neill LJ refers to Thoday v Thoday [1964] P 181 at 197 where cause of action estoppel was defined by Diplock LJ:
"… A cause of action estoppel is that which prevents a party to an action from asserting or denying as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the parties. If the cause of action was determined to exist, ie, judgment was given upon it, it is said to be merged in the judgment … If it is determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam."
Without in anyway questioning Barber , we take the view that the Employment Tribunal's decision in Ms Ako's case cannot fairly be described as a case where a cause of action has been determined by a court of competent jurisdiction not to exist. Nor, so far as concerns issue estoppel, do we see Ms Ako's case as falling within the description or example of that type of estoppel to which the Court of Appeal referred in Barber , where Neill LJ cited Kahn v Goldechha International Ltd [1980] 1 WLR 1482 as referred to in SCF Finance Co Ltd v Masri (No.3) [1987] QB 1028 . The citation in Barber at paragraph 32 of the IRLR report says:
"The decision in Khan v Goldechha International Ltd … makes it clear that an order dismissing proceedings is capable of giving rise to issue estoppel even though the court making such an order has not heard argument or evidence directed to the merits … If a party puts forward a positive case, as the basis of asking the court to make the order which that party seeks, and then at trial declines to proceed and accepts that the claim must be dismissed, then that party must, in our view, save in exceptional circumstances, lose the right to raise again that case against the other party to those proceedings."
It cannot be said here that there has been a putting forward of a positive case with a declining to press it at trial or an acceptance that the claim must be dismissed. We are not saying that that is the only possible definition of that kind of estoppel, but it is certainly the one that was adopted in Barber .[20]We are not to be taken to be saying that the Chairman in Ms Ako's case was not exercising a discretion. He did exercise a discretion as we see it. But, given that there was a exercise of a discretion, we do not see that that of itself necessarily makes the dismissal on withdrawal an adjudication within the doctrine of estoppel per rem judicatam. We recognise that there may be difficulties in drawing the line between the exercise of a discretion by a judicial officer which is a judgment for the purposes of the doctrine and one which it is not a judgment for the purposes of the doctrine, but that line can be drawn with more confidence when the facts require it. What we are clear about is that Ms Ako's case is well short of that line. Moreover, the only case cited to us that comes close to suggesting that Ms Ako's case dismissal does fall within the doctrine is, for the reason that we have given, in our view, distinguishable; that is, of course, the Barber case.[21]Ms Monaghan has other arguments suggesting that Barber is distinguishable. There, the dismissal was at a public hearing. There was a full panel of three tribunal members. There was oral representation by one party before the tribunal and the person who withdrew, or wished to withdraw, had the opportunity of being questioned by and of addressing the tribunal orally. There had been, in Barber , opportunity for the tribunal to find out precisely why it was that withdrawal was sought. In cannot be clear that that opportunity was not taken by the tribunal in Barber in order fully to establish to their satisfaction why it was that the withdrawal was sought and whether dismissal was an appropriate consequence.[22]In Ms Ako's case, by contrast, there was merely a private consideration of slim file and a signing of a pre-prepared standard form by a Chairman alone. The tribunal took advantage of no opportunity to find out precisely why withdrawal was wished.[23]Although these are manifestly differences , Mr Panesar argues that they are not sufficient to amount to a true distinction and we are not convinced that he is wrong. There is nothing in Barber to require of a decision, for the purposes of the doctrine of estoppel, that it should have been made in public or after oral representations. Nor, subject to the next point, is the number of judges relevant.[24]Ms Monaghan then moves onto rather more technical ground, saying that no full reasons were given for decision in Ms Ako's case, notwithstanding that it was a racial discrimination case or at least included that, and that was despite Rule 10(4) of the Employment Tribunal Rules. Indeed, she goes on to say that by virtue of section 4(1) and (3) and section 4(6) of the Employment Tribunals Act 1996 , the Chairman, she says, truly had no jurisdiction on his own to dismiss a racial discrimination case, even where an applicant had indicated in writing a wish for her case to be withdrawn and had done so without that seeming to involve any agreement that might or might not offend section 203.[25]That argument, it will plainly be seen, could affect very many cases and could rise to practical difficulties at the Employment Tribunal level, and would, for an informed judgment, require a full consideration by us of Employment Tribunal practice. None of these technical grounds were argued below, where Ms Ako was in person. It may be said that it does not follow, because a decision was not fully compliant with relevant Rules, that it should be denied the character of being a judicial decision. We quite see that if there is truly a comprehensive shortcoming such as totally to deny jurisdiction then it could be argued that if there had been no jurisdiction then, ergo, there would be no judgment capable of operating as an estoppel. But we reiterate that such considerations give rise to general points going well beyond these parties before us and were not raised below. The safer course is for us therefore not to rule upon them and, indeed, as they were not raised below, the safer course is probably the only course open to us – see Jones v Burdett Coutts School [1998] IRLR 521 C.A.[26]Turning, then, to another aspect of Mr Panesar's argument, he emphasises that the question of dismissal was one for decision by the Chairman. It is the Chairman who has the discretion under the Rules. It requires his judicial decision. Why else reserve it to the Chairman if it was not required to be a judicial decision? Surely if it was not judicial it could be done by a clerk?[27]However, as we said, it is no part of our reasoning that there has been here no exercise of a judicial discretion.[28]Then Mr Panesar goes on to say that the Chairman must have looked at questions such as what were the reasons for the withdrawal. He must, says Mr Panesar, have looked to see if the wish as to withdrawal was qualified or unqualified and whether the withdrawal was, for example, as to the whole of a claim or just part.[29]But there is no evidence of that. It may worth reading again 3(vii) of the tribunal's decision:
"On 2 July 1999 a Chairman considered the file, which contained both the note of the telephone conversation and the Applicant's letter of 28 June 1999, and signed the document headed Decision, which read in full: "
The application is dismissed on withdrawal by the Applicant." That Chairman heard no evidence and did not sit in an open Tribunal room." It is only the file that is found to have been considered by the Chairman. There is no finding as to anything else being considered. It would have been, as we mentioned, a rather slim file. It would have had the IT1, the note of the telephone conversation and the letter indicating the wish to withdraw, coupled with the standard form decision prepared in draft by the clerk. As for looking at the reasons for the wish to withdraw, if the Chairman had done that, he would have immediately seen that dismissal would be inappropriate. He had, of course, no reason to raise with Ms Ako her reasons for withdrawal because the letter seemed to be a complete and unilateral decision to withdraw, but if there had been any raising with the applicant of why it was that she wished to withdraw it would immediately have been seen that it would not be proper to dismiss the case as the very least enquiry of Ms Ako would have established that she wished not to abandon her claims, but, indeed, to add to and to pursue them. So, whilst we must proceed on the basis of a finding that the Chairman considered the file, we have no good reason to suppose he did anything other than that.[30]Of course, at the very heart of Mr Panesar's argument is the submission that Barber binds us to a view that a dismissal in circumstances such as the ones that we are looking at is invariably and without exception to be taken to be a judgment for the purposes of estoppel per rem judicatam. Our response, as we have indicated, is that by reason of its reference to section 140, now section 203, Barber shows that there is no such broad and inescapable proposition. Mr Panesar says that the reference to section 140 in Barber was, as he put it, like an additional skin on an onion; it did not change the basic nature of the matter being considered, it simply added a little to the bulk. But we see the reference to section 140 and to the 1978 Act in Barber as an important step in the Court of Appeal's reasoning. It would have been, as we have mentioned, so easy merely to adopt the reasoning of the Employment Appeal Tribunal, but that was not what the Court of Appeal did. Mr Panesar then says that, in any event, leaving aside what the Court of Appeal said in the case, the EAT in Barber had decided that the mere exercise of the discretion of the Chairman such as was involved in converting the wish to withdraw into a dismissal was of itself a judicial decision for the purposes of the doctrine and invariably that had to be recognised to be the case. We see that that does appear to be what the EAT said in Barber , but, even if it does say that, we are not bound by it and, in any event, as we have said, we regard the subsequent reasoning of the Court of Appeal as depending on the introduced reliance upon section 140, now section 203.[31]Ms Monaghan, lest her argument on Barber should fail, had in her locker, so to speak, further arguments as to Article 6, as to Barber in any event being wrong, and as to some allegations in the second proceedings brought by Ms Ako not possibly being within the doctrine of res judicata as they related to events which had not even occurred at the time of the first dismissal.[32]We have not heard those further arguments. We have merely heard both sides on the Barber issue first. Given the central position of Barber in the tribunal's reasoning and our judgment that it is distinguishable, we do not see it as necessary to go beyond Barber into those further points as to which, in any event, Mr Panesar raised detailed defences.[34]It is plain from the expressed sympathy of the tribunal for Ms Ako's position that the tribunal would not have decided as it did had it not felt it was bound by Barber . Indeed, the need for finality in litigation which, as we have seen, the tribunal mentions, hardly arises here, where the question is not so much concerned with finality after judgment but whether judgment in any relevant sense can really be described as even having begun. We are therefore minded to allow the appeal and to remit the case for hearing on the merits.[33]We add that if we are wrong and if, special considerations apart, the doctrine of res judicata does invariably apply to cases such as Ms Ako's, and if the exception in Arnold v National Westminster Bank Plc [1981] 2AC 93 at 104C is not the only possible exception to it, there may be arguably a case where, in special circumstances, the doctrine can be relaxed. We are not saying that that is so but, if it is so, we would see this as a case where the circumstances which we have outlined in relation to Ms Ako's case make her case special. Therefore, if we were permitted, in our discretion, to do so, we would dis-apply the doctrine and again remit the matter for hearing on the merits. Recent cases in the rather different area covered by Henderson v Henderson [1843] Hare 100 have favoured a modern approach looking at whether or not there has been abuse of process. Ms Ako was advised, albeit, as it would seem, poorly, to withdraw her claim. The Employment Tribunal held that she would not have done so if she had understood that doing so would deny her the ability to pursue her claims. We would shrink from introducing a branch of the rather involved doctrine of dependent relative revocation into employment law, but if we did have any relevant discretion we would see that her conduct could not morally or in any other way be described by the label "abuse of process". In such a case, assuming some such discretion, we would disapply the doctrine.[34]However, we need not go into that further. But, reverting to our chief ground, we distinguish Barber for the reasons we have given. We allow the appeal and remit the case for hearing on the merits. There is no need for it to go to a different Tribunal than before but it should be unless that is impracticable. [ Following discussion with Counsel regarding any directions and an application by Mr Panesar on behalf of the first respondent, for leave to appeal to the Court of Appeal ][35]Yes, we give leave to appeal to the Court of Appeal.