BRITISH ASSOCIATION FOR SHOOTING AND CONSERVATION v MARK COKAYNE [2007] UKEAT 0467_07_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0467_07_1910Case No Appeal No. UKEAT/0467/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BRITISH ASSOCIATION FOR SHOOTING AND CONSERVATIONAPPELLANTMARK COKAYNERESPONDENT
Before
His Honour Judge David RichardsonDate 19 October 2007
[1]APPEARANCES For the Appellant MR NICHOLAS SIDDALL (of Counsel) Instructed by: Messrs. Hill Dickinson 50 Fountain Street Manchester M2 2AS For the Respondent MR DAVID TINKLER (of Counsel) Instructed by: Messrs. Hillyer McKeown Murlain Business Centre Union Street Chester CH1 1QP SUMMARY Practice and Procedure - Estoppel or Abuse of Process The Tribunal Chairman erred in law in holding that the cause of action in the two claims commenced by the Claimant was not the same. Once proceedings are dismissed on withdrawal under Rule 25 a claimant in subsequent proceedings based on the same cause of action cannot avoid the consequences of the order dismissing the proceedings merely by asserting that he always intended to bring a second claim and that it is not an abuse of process to bring it. The exception to the operation of cause of action estoppel allowed in Ako v Rothschild Asset Management (2002) IRLR 348 is no longer available. Discussion of review as a potential remedy for a claimant who has suffered injustice by the operation of Rule 25. HIS HONOUR JUDGE RICHARDSON It is a cause of endless trouble when litigants bring a second set of proceedings covering ground which they have already traversed. Generally there is no good reason for doing so; and the courts have therefore applied strict rules to prevent the same causes of action and issues being litigated in two sets of proceedings.[2]In employment tribunal proceedings there has been a particular difficulty when a claimant has withdrawn a claim and started another covering the same ground. Until 2004 it was the practice for an order to be issued as a matter of course dismissing the proceedings. An order dismissing a set of proceedings generally bars the commencement of a second set of proceedings based on the same cause of action. This usually caused no injustice, for a claimant who withdrew proceedings generally intended to abandon the underlying claim or if he intended to start another set of proceedings had no good reason for doing so. Occasionally, however, a claimant had good reason for withdrawing and starting a second set of proceedings. There was a gap in the rules governing employment tribunals; there was no procedure which enabled him to withdraw the first set without the claim being dismissed. So in exceptional circumstances the law allowed the litigant to bring a second set of proceedings where the first set had been dismissed on withdrawal. The leading case was Ako v Rothschild Asset Management Ltd (2002) IRLR 348 .[3]In 2004 a new rule was introduced: Rule 25 of the Employment Tribunal Rules 2004. Under this rule a claimant can withdraw his claim without the claim being dismissed. The respondent, if he wishes to have the claim dismissed, must make an application. The Tribunal will then consider the circumstances. If (as will usually be the case) the claimant intends to abandon the claim or has no good reason for bringing the same matter before the tribunals or courts again, the Tribunal will dismiss the claim. If, exceptionally, there is some good reason why a second claim would not be an abuse of the process of the court, the Tribunal will not dismiss the claim. The leading case on the new rule is Khan v Heywood and Middleton NHS PCT (2006) IRLR 793 .[4]This appeal shows that there is still a difficulty. Practitioners in employment law can be expected to know the purpose of the new rule. But litigants in person will not always do so. There remains a danger that a litigant in person will withdraw a claim, intending for good reason to start another covering the same ground, and will not oppose dismissal because he does not understand the purpose of the rule. The question arises: if this happens, in the second set of proceedings can he still rely on the principles set out in Ako v Rothschild Asset Management Ltd ? Or have they been overtaken by the new Rule 25? And if they have, is there anything else the litigant can do to rescue his position?[5]Rule 25 of the Employment Tribunals Rules 2004 (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 reads as follows. 25 Right to withdraw proceedings(1) A claimant may withdraw all or part of his claim at any time – this may be done either orally at a hearing or in writing in accordance with paragraph (2).(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the Tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).(5) The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so. The appeal[6]This appeal is against a judgment of the Employment Tribunal dated 13 th July 2007 sitting at Shrewsbury by Chairman alone (Mr C M Gaskell). Mr Mark Cokayne had presented a claim for constructive dismissal against his former employers, the British Association for Shooting and Conservation ("the Association"). The Tribunal Chairman rejected the Association's argument that the claim was barred by the doctrine of cause of action estoppel. Mr Cokayne's employment[7]Mr Cokayne was employed by the Association as a Wildfowl and Wetlands Officer. From about August 2006 onwards he was acutely dissatisfied with the way he was being treated by his immediate manager, Mr Russell. At the end of a meeting on 9 th October 2006 he submitted a letter of resignation. The letter gave 3 months' notice, which Mr Cokayne worked out. During the notice period the Association held a grievance hearing and then an appeal against the rejection of the grievance. The result of the appeal was announced on 1 st December 2006; it went against him, but he was offered an opportunity to withdraw his resignation, which he declined. Mr Cokayne finally left the Association's employment on 8 th January 2007. A second tier of appeal in respect of his grievance was heard and dismissed on 19 th January 2007. The first Tribunal claim[8]In the meantime, on 14 th November 2006, Mr Cokayne presented a claim to the Employment Tribunal ("the first claim"). The standard claim form, known as an ET1, requires a claimant to state the date of dismissal, which he gave as 8 th January 2007. It requires a claimant to say whether he has put his complaint in writing, and if so when. He gave the date 9 th October 2006, a reference to his resignation letter. The only substantive section of the form which he completed related to unfair or constructive dismissal. The form required him, if he resigned and felt he could no longer work for his employer, to explain what happened. He simply said – "It would be much easier to forward the documentation I have as there are a number of issues involved."[9]On 11 th December 2007 the Association entered a Response to the claim. The Response justly complained that Mr Cokayne had given no detail of his case. It correctly treated the Claim as a claim for constructive dismissal, and denied that Mr Cokayne had resigned as a result of any breach of any contractual term, fundamental or otherwise. Further, the Response said that Mr Cokayne had unreasonably issued proceedings before the conclusion of the grievance procedure, by reason of which the Association would seek a reduction of any compensation awarded: see section 31 of the Employment Act 2002.[10]On 12 th December Mr Cokayne sent an e mail to the Tribunal. He was plainly mindful of the point about section 31 of the 2002 Act. He said:
"I applied for a tribunal a little while ago… I applied at that time as my employer had not followed required procedures when I tried to raise a grievance and I was worried that I would run out of time to make an application. However, my employer has now gone through a grievance procedure. I therefore wish to withdraw my initial application, and will resubmit when the correct amount of time has elapsed. I hope this is the correct procedure, and would appreciate it if you could let me know when this is done."
[11]The Tribunal informed both parties of the withdrawal. Neither Mr Cokayne nor the Tribunal copied the e mail to the Association's solicitors. On 2 nd January 2007 the Association's solicitors wrote to the Tribunal asking that in the light of the withdrawal the claim should be dismissed. They gave notice of the application to Mr Cokayne.[12]As I have explained, it can be of great importance whether a claim which has been withdrawn is subsequently dismissed. It seems that no-one alerted Mr Cokayne to the importance of the application to dismiss his claim or told him that it might prevent him from fulfilling his expressed intention of commencing proceedings again once the grievance procedures had taken their course. At all events Mr Cokayne did not respond to the application to dismiss. On 16 th January 2007 a Tribunal Chairman considered it on paper and issued a judgment dismissing the claim. The judgment gives no reasons beyond saying that the dismissal was upon withdrawal. The second Tribunal claim[13]On 5 th April 2007 Mr Cokayne presented his second claim. On this occasion he set out his claim fully. He referred to the circumstances in which he wrote his letter of resignation on 9 th October 2006. He described the subsequent grievance and appeal hearings and set out some criticisms of them. He explained that he did not take up the offer to withdraw his resignation because the Association's managers would not talk to him on the telephone about how he and Mr Russell might work together. He concluded – " I felt that the way Tim Russell had tried to undermine me, treated me differently from the other members of my team, spoken negatively about me behind my back, his general treatment of me and most of all the handling of my grievance and appeals meant that I could no longer have trust and confidence in BASC and so I had no option but to resign"[14]In its Response to the second Tribunal claim the Association took the point that the first claim had been dismissed, and therefore that the Tribunal lacked jurisdiction to hear Mr Cokayne's claim on the principle of res judicata. The Tribunal listed this argument for a pre-hearing review. The Tribunal's reasons[15]At the pre-hearing review the Tribunal Chairman identified, correctly, that the principle relied on by the Association was cause of action estoppel.[16]The Tribunal Chairman concluded that the causes of action in the two sets of proceedings were not the same. His reasons appear from two passages. "His claim which was presented in April 2007 certainly covers the same ground but goes on to deal with a grievance procedure extending beyond the commencement of the first claim and indeed beyond the withdrawal of the first claim and an appeal procedure thereafter which was not fully completed until 19 January 2007. Therefore in my view the new claim covers new ground which was not and could not be included in the first claim…. Accordingly I take the view that we are not dealing with identical causes of action" "It seems to me that an employee who gives his employer an opportunity to deal with grievances is not to be deprived of his right to bring the claim if having given that opportunity the employer fails to deal with grievances satisfactorily. It is much the same as the general principles relating to constructive dismissal that an employee who delays too long after the breaches will be said to have acquiesced or affirmed the breaches and cannot then proceed with a cause of action arising out of them. But an employee who allows his employer to investigate and put things right is not to be deprived of his claim because of the delay to allow that to happen if the employer does not in fact put things right. In my view this is not an identical cause of action. It is an enlarged cause of action much of which depends on facts which occurred after the original proceedings were commenced" The issues on appeal[17]Two issues arise on this appeal.[18]The first question is whether the Tribunal Chairman was right to hold that the causes of action in the first and second claim were different.[19]The second question is whether, even if the causes of action were the same, cause of action estoppel applies. On behalf of Mr Cokayne it is submitted that cause of action estoppel will only apply if, additionally, it was an abuse of the process of the court to bring the second set of proceedings. On behalf of the Association it is submitted that this additional requirement is no part of the law of cause of action estoppel; or, if it is, that on the facts of this case it was an abuse of the process of the court to bring the second set of proceedings. Were the causes of action the same?[20]On behalf of the Association Mr Siddall submits that the cause of action in the two claims remained the same. In each case it was constructive unfair dismissal, based on the same resignation and the same termination of contract. While it is true that in the second claim Mr Cokayne made some criticisms which post-dated and could not have been included in the first claim, these did not alter the cause of action. He referred to Conquer v Boot (1928) KB 336 considered in an employment context by the Appeal Tribunal in Bainbridge v Redcar & Cleveland Borough Council (2007) IRLR 494 at paragraphs 119-120. In any event, he submitted that since constructive dismissal depended on the employee terminating the contract of employment by reason of a fundamental breach of contract, the facts relevant to the constructive dismissal claim itself ended on 9 th October when Mr Cokayne resigned.[21]In answer to this submission on behalf of Mr Cokayne Mr Tinkler submits that it was for the Tribunal to analyse the cause of action in question, and that the Tribunal's analysis is not shown to be wrong in law or perverse.[22]In my judgment both claims were founded on the same cause of action, and the Tribunal Chairman erred in law in holding that there could not be a cause of action estoppel because the causes of action were not identical.[23]In the first claim Mr Cokayne did not complete the ET1 form properly. But given the context which I have described it is entirely plain what cause of action he sought to raise, for the only operative section of the form which he completed was that relating to unfair and constructive dismissal, and the date he gave for termination of his employment was 8 th January 2007, which was the date when the notice he gave in his resignation letter would expire. His cause of action was for unfair dismissal, the dismissal being of the kind set out in section 95(1)(c) of the Employment Rights Act 1996, which is generally termed a constructive dismissal.[24]In the second claim Mr Cokayne expressly relied on unfair and constructive dismissal. Again the date he gave for termination was 8 th January 2007, and on this occasion he expressly referred to his resignation letter and founded his claim on resignation by that letter. To my mind the cause of action is plainly the same; it is a cause of action for constructive unfair dismissal based on the resignation in October and the termination on 8 th January.[25]The Tribunal Chairman was no doubt right to say that there was some new ground in the second claim which did not exist in the first. But fundamentally the cause of action was the same. It does not follow that, because a second claim raises some issues which the first did not or could not, that the cause of action is different. That would be to blur the distinction between cause of action estoppel and issue estoppel.[26]The Tribunal Chairman said that an employee who gives his employer an opportunity to deal with grievances ought not to be deprived of his claim because of delay if the employer does not put things right. That will no doubt usually be true; but the question to be determined is not whether the employee should be deprived of his claim but whether the cause of action remains the same. There may be circumstances in which the cause of action is not identical; for example, if an employee withdraws his resignation pending grievance proceedings, and then in response to unjust grievance proceedings resigns again on a different date. But that is far from the position here. Mr Cokayne's case is and always has been that he terminated the contract of employment with effect from 8 th January. Abuse of process[27]On behalf of Mr Cokayne Mr Tinkler submits that if a claimant did not intend to abandon a cause of action when withdrawing his claim, he is not barred from raising the same cause of action in subsequent proceedings unless it would be an abuse of the process for this to occur. In this case Mr Cokayne, he submits, always made clear his intention to commence further proceedings, and it would plainly not be an abuse of process for him to do so. He relies on Sajid v Sussex Muslim Society (2002) IRLR 113 and Ako v Rothschild Asset Management Ltd. . He submits that nothing in the revised wording of rule 25 of the Employment Tribunal Rules 2004 alters this position.[28]On behalf of the Association Mr Siddall submits that cause of action estoppel admits of no exceptions. He submits that only in the case of issue estoppel can special circumstances give rise to an exception, relying on Arnold v National Westminster Bank plc (1991) 2 AC 93 at 105B, 108F-H, 109A-B. In any case, he submits that the position has changed since Sajid and Ako, because the 2004 Rules have closed the lacuna to which those cases referred. He submits that a claimant is now bound by a dismissal under those Rules. He relies on recent cases under the new Rules: especially Khan v Heywood and Middleton NHS PCT and Fraser v HMLAD (2006) IRLR 687 .[29]I have no doubt that the decision of the Court of Appeal in Ako turned on the absence of any procedure in the Employment Tribunal Rules for withdrawing a claim without dismissing it.[30]In that case the claimant had an understandable reason for withdrawing one set of proceedings and commencing another. It was nevertheless argued that the doctrine of cause of action estoppel prevented her from bringing her second claim after the first had been dismissed. Mummery LJ said: 29. …. There is, however, a procedural problem peculiar to the Employment Tribunals, which has not been mentioned in the authorities. Its importance only became apparent to me in the course of the excellent submissions of Ms Monaghan in support of this appeal. In the ordinary courts there is a significant distinction in the rules of procedure governing withdrawal of proceedings between(a) an order dismissing proceedings, which is capable creating cause of action estoppel, and(b) discontinuance of proceedings under CPR Part 38.7 (and previously, with the leave of the court, under RSC Order 21, rules 3 and 4), which does not operate as a release or extinction of a cause of action and as a bar to further proceedings: see The Ardanhu (1887) 12 App. Cas. 256 at p. 259 and Foskett on the Law and Practice of Compromise paras 15-24 and 15.25 The permission of the court is now required to make another claim against the same defendant when the claim arises out of facts, which are the same or substantially the same as those relating to a claim which has been discontinued after the defendant has filed a defence. The court would be very likely to give permission in a case such as the present. The procedural rules in the Employment Tribunal do not, however, make the same distinction or contain similar provisions. This omission may be a trap for the unwary, if the doctrine of cause of action estoppel is strictly applied. The only procedure for withdrawing an application is by an order dismissing the proceedings. There may, however, be cases in which a discontinuance of the tribunal proceedings, if that procedure were available, would be more appropriate than dismissal: Sajid is one such case, where the evident purpose of withdrawal was to put an end to the particular proceedings without releasing or discharging the cause of action on which those proceedings were based. 30. In my judgment, the reasoning in Barber and Lennon does not require that cause of action estoppel, as applied in the ordinary courts, should apply to Employment Tribunal cases where it is clear, on an examination of the surrounding circumstances, that the withdrawal of the application is in substance a discontinuance of the proceedings. Discontinuance does not release or discharge the cause of action. It preserves the right to establish an untried claim on the merits in other proceedings. If, as I have explained, this is so in ordinary courts, it does not make any sense that the position should be more strict in its application in the less formal setting of the Employment Tribunals. Unless and until the Regulations of the Employment Tribunals are amended to deal with this point, it would be advisable for Employment Tribunals, on being notified of the withdrawal of an Originating Application, to ask the applicant for a statement of the circumstances of the decision to withdraw before deciding whether to make an order dismissing the proceedings[31]As I have already explained, rule 25 of the Employment Tribunal Rules 2004 now provides a procedure which distinguishes between withdrawal and dismissal of proceedings. Withdrawal is now the equivalent of discontinuance. Dismissal is a formal judgment terminating the proceedings.[32]Although Fraser v HLMAD was not a case relating to withdrawal, Moore-Bick LJ considered the effect of Rule 25 on the principles laid down in Ako . He said: 45 As I read the decision, the court's approach to the question of cause of action estoppel in Ako v Rothschild Asset Management Ltd reflected the ambiguous nature of an order in the Employment Tribunal at that time dismissing a claim. It is not authority for the general proposition that a person who seeks to pursue proceedings based on a cause of action which has been the subject of a judgment in former proceedings can subsequently delve into the circumstances surrounding the former judgment with a view to persuading the court that he did not intend to abandon his right to take further proceedings on the basis of it. That would be inconsistent with the observations of Lord Keith in Arnold v National Westminster Bank Plc and contrary to the principles underlying cause of action estoppel which, as this court held in Barber v Staffordshire County Council, depends on the existence of a judgment rather than a decision on the merits, much less the circumstances in which it came to be entered. 46 Since those cases were decided a new set of rules, the Employment Tribunals Rules of Procedure 2004, has been introduced governing proceedings in the Employment Tribunal. Rule 25(1) of those rules allows a claimant to withdraw all or part of his claim at any time and the withdrawal takes effect when the Employment Tribunal Office (in the case of a written withdrawal) or the tribunal itself (in the case of an oral notification) receives notice of it. No further order is required to make the withdrawal effective, but the respondent may apply for an order dismissing the proceedings against him and the rules expressly provide that, if such an application is granted and the proceedings are dismissed, those proceedings cannot be continued by the claimant. It would seem, therefore, that the lacuna in the previous rules identified by Mummery L.J. in Ako v Rothschild Asset Management Ltd has now been made good. That was the thrust of the decision of His Honour Judge Richardson in the Employment Appeal Tribunal in Verdin v Harrods Ltd [2005] UKEAT 0538, [2006] IRLR 339 with which I would respectfully agree. Accordingly, claimants should no longer assume that if they allow an order to be made dismissing the claim they can prevent a cause of action estoppel arising by making it clear that they intend to pursue a claim elsewhere.[33]In Khan v Heywood and Middleton NHS PCT , which was concerned with the construction of Rule 25, Wall LJ said (in a judgment with which Brooke LJ and Smith LJ agreed): 72 …. whilst none of the authorities cited to us is directly in point, their thrust seems to me strongly to support the proposition formulated by Moore-Bick LJ in paragraph 46 of his judgment in Fraser that the lacuna in the rules identified by Mummery LJ in Ako has now been made good. This is also, I think, the basis of Judge Richardson's reasoning in the extracts from his decision in Verdin which I have set out in paragraph 44 of this judgment, and with which I agree.[34]Further, he cited with approval a passage from the judgment of the Appeal Tribunal in Verdin v Harrods Ltd (2006) IRLR 339 to the following effect:39. So a party who receives a notification of withdrawal of the whole proceedings, and wishes to establish once and for all that there is to be no further litigation on the same questions, may apply for dismissal. The subsequent hearing will then concentrate on the question, which Mummery LJ identified in Ako. Is the withdrawing party intending to abandon the claim? If the withdrawing party is intending to resurrect the claim in fresh proceedings, would it be an abuse of the process to allow that to occur? If the answer to either of these questions is yes, then it will be just to dismiss the proceedings. If the answer to both these questions is no, it will be unjust to dismiss the proceedings.40. I agree with a submission made by Mr Nicholls, that where one party withdraws the other party will generally be entitled to have the proceedings dismissed. This is because the party who withdraws will generally have no intention of resurrecting the claim again, or if he does will generally have no good reason for doing so. There is sometimes a temptation for a litigant, as the day of battle approaches, to withdraw a claim in the hope of being better prepared on another occasion. That will be unacceptable. Tribunals will be no doubt be astute to prevent withdrawal being used as an impermissible substitute for an application for adjournment. Occasionally, however, there will be good reason for withdrawing and bringing a claim in a different way."[35]In my judgment once proceedings are dismissed on withdrawal under Rule 25 a claimant in subsequent proceedings based on the same cause of action cannot avoid the consequences of the order dismissing the proceedings merely by asserting that he always intended to bring a second claim and that it is not an abuse of process to bring it. While the earlier dismissal stands it provides an answer to the subsequent claim. The decision of the Court of Appeal in Ako shows that there may be exceptions to the operation of cause of action estoppel where it is necessary to do justice. But the exception was only necessary because there was no means of bringing Tribunal proceedings to an end except by dismissing them.[36]What, then, is the position of a claimant who has withdrawn proceedings and, ignorant of the true purpose of Rule 25, not opposed an application for the proceedings to be dismissed? If such a claimant were altogether without remedy it might be necessary to fashion an exception to the operation of cause of action estoppel in order to provide him with one. But, as was discussed with counsel at the hearing of this appeal, I consider that such a claimant has a remedy. It is to apply for a review of the dismissal. Dismissal of the proceedings under Rule 25(4) must be by means of a judgment, since it is a final determination: see Rule 28(1). Such a judgment may be reviewed: see Rule 34(1)(b). If a litigant made it clear to the Tribunal that he intended to start proceedings again, and if he did not oppose the dismissal of the proceedings because he was ignorant of the effect of such an order, the Tribunal would have power under Rules 34-36 to review the matter.[37]At the moment there is nothing to draw to the attention of a litigant in person the importance of the distinction between withdrawal and dismissal. There is, therefore, still a trap for the litigant in person. I consider that, even if an application for dismissal is unopposed, where the claimant is a litigant in person a Tribunal Chairman should see whether there is any material on the file which might suggest that, applying the tests in Verdin , it would be unjust to dismiss the claim without further enquiry.[38]As Mr Tinkler pointed out, if Mr Cokayne's e mail dated 12 th November had come to the attention of the Tribunal Chairman he might well have ordered a hearing before dismissing the proceedings, or at the very least ensured that Mr Cokayne understood the importance of the point at issue. Mr Cokayne may well persuade a Chairman that there was a procedural mishap in his case or that it is otherwise open to him under the Rules to hold a review; but that is not a matter before me today.[39]If Mr Cokayne applies for a review and persuades a Chairman to hold a review, that Chairman will then apply the tests in Verdin to the circumstances. There is no doubt that Mr Cokayne intended to bring fresh proceedings. The question will then be whether it would have been an abuse of the process for him to do so. Speaking for myself, I would not have thought it an abuse of the process to commence fresh proceedings (within the appropriate time limits) if the first set was withdrawn at an early stage and the reason for withdrawing them was that they had been commenced before the statutory procedures were completed. Ultimately, however, that will be a matter for a Chairman on review, and circumstances may be brought to his attention of which I am unaware.[40]It seems to me that the just way to dispose of the appeal is as follows. The appeal will be allowed. There will be a declaration that the causes of action in the two sets of proceedings are the same. The matter will be remitted to the Chairman to continue the hearing in accordance with this view of the law. This will effectively allow Mr Cokayne a chance to apply for a review to the Tribunal in the first set of Tribunal proceedings. I think it is just that he should have an opportunity to consider such an application in the light of this judgment. If he makes no such application the Chairman will no doubt uphold the argument of the Association. But if Mr Cokayne has made such an application, the Chairman may if he considers it just to do so adjourn to await the result of it – for cause of action estoppel does not go to the Tribunal's statutory jurisdiction, but is rather a matter of defence or abuse which would fall away if a review were successful and the dismissal were revoked. I emphasise that it will be for the Chairman to take that decision. I am conscious that there was some discussion of the question of review in the Tribunal which may bear on that issue.