MR L BOXELL v DURHAM COUNTY COUNCIL - CHIEF EDUCATION OFFICER [2002] UKEAT 0786_02_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0786_02_0111Case No Appeal No. EAT/0786/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L BOXELLAPPELLANTDURHAM COUNTY COUNCIL - CHIEF EDUCATION OFFICERRESPONDENT
Before
Mr Justice Wall Mr B R Gibbs Mrs J M MatthiasDate 1 November 2002
[1]APPEARANCES For the Appellant MR I WRIGHT (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by Mr Boxell against the Decision of the Employment Tribunal sitting at Newcastle on 17 June 2002. The unanimous decision of the Tribunal was that the Originating Application issued by Mr Boxell against the Chief Education Officer of Durham County Council be dismissed.[2]In his Form IT1 Mr Boxell claimed a misreading of statutory orders with equal pay implications and in the particulars which were attached to the form within the Form IT1 he said:
"The payment made to me 24/01/02 (by order of the Secretary of State for Education) was deficient (with EO implications) (based on an earlier misreading of a statutory order) with implications for my pension (starting 29/03/02). A similar misreading occurred to another statutory order (but the County [Court] decide they are not going to honour that deficiency). I am seeking rectification of my pension position, payment of my pay shortfall, compensation for the violation of my European Convention Rights."
[3]The point which arose immediately on the Originating Application was that the issues Mr Boxell sought to raise had been the subject of previous litigation. Accordingly, the Tribunal embarked on a Preliminary Hearing to determine whether or not Mr Boxell's Originating Application could proceed. The point taken by the Respondents was that it was an attempted re-opening of previous litigation Mr Boxell had brought both in the Employment Tribunal and in the Darlington County Court. There was accordingly a plea of res judicata or estoppel as well as the application of the rule in Henderson v Henderson .[4]Mr Boxell appeared in person and a solicitor represented the Respondents. Mr Boxell put in submissions running to some 78 pages.[5]In its recitation of the facts, the Tribunal found (and this is of course not in issue) that there had been previous proceedings. In March 1997 Mr Boxell brought proceedings in the Employment Tribunal alleging he had not been paid on the correct grade in respect of his jobs in the teaching profession, both as a teacher and as a lecturer. His claim was rejected by the Employment Tribunal in a very lengthy decision, which Mr Boxell appealed to the Employment Appeal Tribunal which rejected his appeal. He also litigated a similar claim in the Darlington County Court and that claim had been dismissed.[6]In recording these submissions the Chairman noted that Mr Boxell accepted that the factual situation in the present application was the same as the previous claim; and that Mr. Boxell also accepted that the issues raised in the present application were the same as he raised in the previous applications dealt with by the Employment Tribunal.[7]Mr. Boxell alleged that the Employment Tribunal in the previous case failed to consider the legislation which he put before it, and failed to give reasons why it rejected his interpretation of that legislation. He submitted that made the cases different.[8]The Tribunal then went into the law on the subject of res judicata and the case of Henderson v Henderson and at paragraph 8 reached its decision which we think is important. (The first paragraph 8; there seem to be 2 which is typographically inaccurate). The first paragraph 8 under the heading Decision is, we think, significant and we read it in full: 8 "Our decision is a unanimous decision. Mr Boxell has told us that the claims he now seeks to bring before the Tribunal arise out of the same factual situation that he litigated previously. He raises the same issues as he raised previously. He had the opportunity in those proceedings to cover all of the issues that he now seeks to raise. We have read all of the documentation particularly the decision of the Employment Tribunal, which is extensive and the judgment of the County Court. Mr Smith in his written submissions set out Mr Boxell's claims contained in his present Originating Application see paragraph 5. The Tribunal in the decision set out the full issues determined by it at paragraph 2. We adopt these. All of the points which Mr Boxell has mentioned to us today and those contained in his Originating Application and, more particularly, in the further and better particulars are dealt with in the previous proceedings. On reading closely those documents it is clear to us that these issues are exactly the same as those he has previously sought to bring before an Employment Tribunal and which were rejected by the Employment Tribunal. Mr Boxell's merely trying to re-litigate. He failed in the original proceedings. He does not accept that he should have failed. He now tries to bring those issues before another Tribunal. He is not allowed to do that because of the ruling cause of action estoppel . We come to the conclusion that he must be barred from bringing the proceedings, as they are exactly the same. He is not allowed to re-litigate things just because he does not believe that the right decision was made. We dismiss his Originating Application." And the Tribunal also made an Order for Costs in the sum of £750.[9]The Notice of Appeal, most unfortunately in our view and quite inappropriately, alleges: 1 "Bias on the part of the Chairman and fraudulent misleading of a previous Chairman by a solicitor. 2 Errors of law on the part of the Chairman and no reasonable Tribunal [would reach such a] perverse decision."[10]For present purposes we leave on one side the allegations of bias. The simple fact of the matter is here that it is not merely did Mr Boxell tell the Tribunal that he issues were the same but that the Tribunal itself after a careful reading of all documentation reached the same conclusion.[11]This morning Mr Boxell has had the advantage of Mr Wright appearing on his behalf under the ELAAS Scheme and we are, as ever, grateful to Mr Wright for his appearance.[12]Mr Wright says today that, effectively, we are not in a position properly to deal with the appeal because we do not have either the judgment of the previous Employment Tribunal or the judgment of the County Court and in those circumstances it would be appropriate for us to adjourn to enable those documents to be obtained.[13]Mr Wright also makes the point that whilst the judgment of the Tribunal records Mr Boxell's apparent concession that the issues were the same that is not what Mr Boxell apparently meant to say and that on perusal of the documentation, once we had it, there may be a point of law here which would enable this matter to go forward to the full Tribunal.[14]We have of course considered those submissions carefully but with great respect to Mr Wright we do not think that they are made out, or that the course he proposes on Mr Boxell's behalf is an appropriate one. In this particular case one does not have to apply the second limb of Henderson v Henderson (which relates to matters which could have been brought forward on an earlier occasion and were not).[15]It is clear from a direct finding by the Tribunal that the issues sought to be re-litigated are precisely the same and therefore however one views the law, with great respect, the facts of the case fall fair and square within the principle of res judicata . These matters have all been dealt with before, now by two Tribunals. There must be an end to litigation and, with respect of Mr. Boxell, we suggest that he concentrates now, not on litigation but on the remainder of his days which we hope he will enjoy.[16]In these circumstances we feel no purpose will be served in the matter going forward to a full Tribunal and accordingly the appeal will be dismissed. Note At the conclusion of the judgment, Mr. Boxell pointed out that Mr. Wright had only addressed the EAT on the question of an adjournment, and that the Preliminary Hearing of his appeal should now take place. He invited the EAT to recuse itself, on the basis that it had effectively made up its mind, as demonstrated by the judgment just given. The EAT agreed to recuse itself, to set aside the order it had just made, and to put the Preliminary Hearing over to another date before a differently constituted EAT. It directed, however, that the judgment just given should be transcribed and made available both to Mr. Boxell and the freshly constituted EAT.