Lynch & Ors v East Dunbartonshire Council [2010] UKEAT 0039_09_0903

EAT
Lynch & Ors v East Dunbartonshire Council
[2010] UKEAT 0039_09_0903 · 2010-03-09
[1]This is an appeal by a group of equal pay claimants from the judgment of an Employment Tribunal sitting at Glasgow, Employment Judge S. Walker, registered on 25 March 2009. The claimants are or were female local authority employees. I propose to continue to refer to parties as claimants and respondents.[2]The claimants were represented by Ms Casey, Advocate, before the Tribunal and by Mr JJ Mitchell QC and Mr D O’Carroll, Advocate, before me. The respondents were represented by Mr S Miller, solicitor, before the Tribunal and before me. BACKGROUND[3]The claimants presented equal pay claims to the Employment Tribunal on various dates in 2005, 2006, 2007 and 2008. Those claims are listed in Schedule C to the Tribunal’s judgment and are referred to as “The First Wave Claims”. The respondents’ response to the First Wave Claims includes an assertion that the claimants had not, prior thereto, complied with the statutory grievance procedure (see: Employment Act 2002 , s.32 and Sch. 2). If the respondents are right about that, the First Wave Claims could not competently proceed. The Tribunal would require to dismiss them. The papers relating to the First Wave Claims were not before me but I understand the argument to be that the grievance letters intimated prior to presentation of the claims were not sufficient for Step 1 of the notoriously troublesome Schedule 2 procedure, as discussed in the case of Highland Council v TGWU [2008] IRLR 272 , the issue regarding the bare minimum required in such a letter not having been determined by the Inner House in the appeal from that decision ( Cannop v Highland Council [2008] SC 603 ).[4]The First Wave Claims are pending and the grievance issue has not yet been determined.[5]Subsequent to the presentation of the First Wave Claims, fresh grievance letters were issued in respect of the claimants’ equal pay claims and, thereafter, a fresh set of complaints were presented to the Employment Tribunal, on 17 March 2008. They are listed in Schedule A to the Tribunal’s judgment and are referred to as the “Second Wave Claims”. The claimants’ purpose in doing so was to protect their position in case the grievance letter issue was decided against them in the First Wave Claims. The five year period will be slightly different since, inevitably, the First Wave Claims cover a period with an earlier starting date than the Second Wave Claims. There is, however, a considerable period of overlap and both the First Wave Claims and the Second Wave Claims raise claims based on the proposition that the claimants were, at all times, carrying out both work rated as equivalent and work of equal value to work carried out by male comparators who were better paid than them. Paragraph 1 of the claimants’ stated “Particulars of Claim”, in the forms ET1 relating to the Second Wave Claims, includes the following:
“The Claimants have in most cases already submitted tribunal claims and have sought in those claims to rely on comparator posts not specifically stated by job title in both their original statutory grievances and claim forms, however the Respondents contend that this is not permitted on the basis of the Highland Council case. To protect their position the Claimants have submitted further grievances and now submit these claims, both of which specifically state the comparator posts the Claimants rely on.”
[6]The respondents responded to the Second Wave Claims in a response which included the following:
“ A. Preliminary pleas 1 . Lis Alibi Pendens The basis of these claims is already the subject of ongoing tribunal proceedings as conceded by the Claimants in their ET1.”
[7]One of the claimants, Ms H Allan, (Case no. 115966/2008) may not have had intimation of the hearing following which the judgment of 25 March was issued and the Tribunal, appropriately, excluded her case from its considerations. THE TRIBUNAL’S JUDGMENT[8]The Tribunal’s judgment in respect of the lis pendens issue was in the following terms:
“The judgment of the Tribunal is that the claims listed in Schedule A shall be dismissed with the exception of claimant Ms H Allan (Case no 115966/2008), which case shall be considered at a future Pre Hearing Review.”
[9]Accordingly, all the Second Wave Claims were dismissed apart from Ms Allan’s.[10]The judgment was issued following discussion at a Pre–Hearing Review. The Tribunal does not record any specific application having been made under rule 18(7) of the 2004 Rules, which sets out the powers of an Employment Judge at such a hearing. It seems clear that there was no question of the respondents seeking strike out on any of the “abuse”/“fairness” grounds in 18(7)(b)–(f). That leaves two possibilities. One is that the Employment Judge approached matters on the basis that she was considering a question:
“as to the entitlement of any party to bring …proceedings.” under rule 18(7)(a). The other is that she was purporting to exercise a separate power under the common law doctrine of lis pendens. At paragraph 33, under reference to the discussion of the common law doctrine of lis pendens as discussed in McPhail: Sheriff Court Practice she says: “Having considered all of the above, I find that the requirements for a successful plea of lis pendens have been established in terms of McPhail’s four elements.”
[11]Thereafter, having determined that she had no discretion in the matter, at paragraph 38, she says:
“Having found that to be the effect of a successful plea in terms of civil procedure, I had to consider whether the Tribunal rules require any different consideration. I do not consider that they do. The overriding objective is served by the operation of the principle of lis pendens. ”
[12]It, accordingly, appears that the Employment Judge considered not that she was exercising a power conferred by rule 18(7)(a) but applying a separate general rule in respect of which she had no choice and no discretion albeit a rule that she felt was justified by the overriding objective.[13]The reason for the Employment Judge’s dismissal of the claimants’ complaints was that the Employment Tribunal was persuaded that the plea of lis pendens could competently be pled before the Employment Tribunal. Further she seems to have decided that she could do so, as I have indicated, not by the application of a specific rule under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (“the 2004 Rules”) but by sustaining an independent plea which was taken as a preliminary point, having determined it in the same manner as it would have been determined if it had been taken by way of defence to a litigation in court. The Employment Judge reached her judgment having regard firstly to an obiter remark by the then President of the Employment Appeal Tribunal, Burton J, in the case of Bryant v The Foreign and Commonwealth Office (EAT/174/02 ), to which I will return, and secondly, to: “… the fact that the analogous plea of res judicata has been considered competent in Employment Tribunals. This is clear from the discussion in Bainbridge .” (paragraph 28).[14]The latter is a reference to Redcar and Cleveland Borough Council v Bainbridge and Ors [2009] ICR 133 . The Employment Judge also refers to a case which was not cited to her but she considered also showed that the plea of res judicata is competent in a Scottish Employment Tribunal, namely the case of Boyce v British Airways [2001] SC 210, where Lord Marnoch commented:
“We see no reason whatever why the principle underlying res judicata – being the principle expressed by the brocard nemo debit bis vexari si constat curiae quod sit pro una et eadem causa – should not in some way be applied to proceedings before administrative tribunals such as those involved in the Employment Tribunal system. Indeed, it is plain , as a matter of common sense, that that must be so.”
[15]The Employment Judge acknowledges that she was not aware of any authority that specifically approved the application of the plea of lis alibi pendens in an Employment Tribunal: “I consider that it derives from the same general principle as res judicata and is therefore a competent plea.” (paragraph 29).[16]Having found that the plea could competently be taken, she examined the facts and determined that the First Wave Claims and the Second Wave Claims raised the same issue between the same parties before the same Tribunal. Further, under reference to the cases of Alston v Alston’s Trustees [1919] 2SLT 22, and Flannigan v British Dyewood Co [1971] SC 110 she determined that she had no discretion in the matter and dismissed the Second Wave Claims (apart from Ms Allan’s). The Appeal[17]For the claimants Mr Mitchell raised three questions. Firstly, is the plea of lis pendens available in the Employment Tribunal? Secondly, did the First Wave Claims and the Second Wave Claims raise the same question? Thirdly, if the plea was available in the Employment Tribunal, did the Tribunal have a discretion as to whether or not to uphold it? Mr Miller agreed that that list of questions appropriately summarised the relevant issues. Is the Plea of Lis Pendens Available in the Employment Tribunal?[18]Mr Mitchell relied on the absence of authority to the effect that the plea is available in the Employment Tribunal. The comment in Bryant relied on by the respondents may not have been to that effect and was, in any event, obiter. There was authority to the effect that the plea was not available in the tribunal system: Marquess of Breadalbane v Orr [1896] 4 SLT 75. The plea, as argued for by the respondents, was not within the 2004 Rules and they were, like the rules relating to proceedings under Part III of the Social Work (Scotland) Act 1968 , a self contained code of procedure intended to regulate proceedings in the Employment Tribunals. The 2004 Rules did not include provision for lis pendens or for it to be taken as a preliminary plea. The overriding objective did not operate so as to enable it to be taken. Mr Mitchell resisted the suggestion that the availability of res iudicata in the Employment Tribunal indicated that the plea of lis pendens was also available. He referred to the cases of Rothschild Asset Management v Ako [2002] IRLR 348 , Canada Trust Co v Stolzenberg [2002] AC1, Arkwright MI v Bryanston Insurance [1990] 2 QB 649 and Boyce to show the distinction between the pleas and that the circumstances in which Lord Marnoch envisaged the principle underlying the plea of res judicata applying in Employment Tribunals were not a matter of technicality.[19]He submitted further that, if the application of the plea did fall to be considered, the two sets of claims did not satisfy the requirement that they raised the same issue. The issue in the First Wave Claims that was due for consideration was the s.32 issue. That issue did not arise in the Second Wave Claims. Finally, if the plea was available, he submitted that the Tribunal had a discretion. The relevant passage at paragraphs 2.94–2.97 in McPhail , stated that the second action “may be dismissed” not that it required to be dismissed. The matter was one of case management. Alston and Flannigan did not, he said, fall to be read as excluding the exercise of a discretion in the matter.[20]In response, Mr Miller’s position was succinctly stated. Whilst it was superficially attractive to say that the Employment Tribunal had a self-contained procedure which was sufficient for all purposes, if that was so, how was it that res judicata could be pled in defence of a claim? He referred to Boyce as authority for the proposition that res judicata was available as a separate plea in the Employment Tribunal. He also relied on Bainbridge , submitting that the Court of Appeal had referred specifically to the doctrine of res judicata at paragraphs 219‑219, and on Rothschild , saying that although the Court of Appeal had there regulated the use of the plea, it had not said that it was not, conceptually, available in the Employment Tribunal forum. Parliament had never, he submitted, indicated that Employment Tribunals could not look beyond the powers set out in their rules. That said, he accepted that res judicata was a more important and weighty plea. In respect that English law did not, traditionally, recognise the plea of lis pendens , as discussed in the Canada Trustees case, it had been devised by the court in the case of Dresser UK Ltd v Falcongate Freight Management Ltd [1992] QB 502 . He submitted that lis pendens could, accordingly, now be taken as a plea in the Employment Tribunal in England. He also accepted that seeking to relitigate a cause which had been determined would be vexatious and come within the provisions of Rule 18(7)(b). He could not think of circumstances in which it would not be vexatious to do so; Mr Mitchell, in response, suggested that relitigation might not be vexatious in exceptional circumstances where there had been fraud or there was fresh evidence or where there had been reduction of a decree in foro . Did the First Wave Claims and the Second Wave Claims raise the same question ?[21]Mr Mitchell’s submission was, shortly, that because the grievance procedure compliance issue arose in the First Wave Claims but not in the Second Wave Claims, the required congruence for the application of the plea was absent. Mr Miller relied on the reasoning of the Employment Judge in support of a submission that the claims were the same. If the plea of Lis Pendens was available, did the Employment Judge have a discretion as to whether or not to uphold it?[22]Mr Mitchell submitted that the Scottish authorities were not clear on the point. Whilst comments made in the case of Alston were regarded as indicating that it was mandatory to uphold the plea, they were obiter and there was no discussion of the issue. He submitted that, contrary to what the Employment Judge thought, Flannigan was not authority for the proposition that it was mandatory to uphold the plea. Mr Miller, on the other hand, submitted that it was clear from Flannigan , that once the court was satisfied that there was a subsisting double dependence, it had no choice. Dismissal of the later action was then mandatory. Discussion and Decision Whether Lis Pendens is available as a plea in the Employment Tribunal?[23]The nature and purpose of the plea of lis pendens (where the prior litigation is pending in the same court) or lis alibi pendens (where the prior litigation is pending in another court in the same jurisdiction) was explained by Lord Neaves in the case of Cochrane v Paul [1857] 20D 178, as follows:
“There is always an equitable power and duty of control in each tribunal to see that there is not on the whole an improper or oppressive accumulation of litigation or diligence.”
(at p.179)[24]Parties are not entitled to use the litigation process to act improperly or oppressively and the need to control and prevent such conduct is, accordingly, what lies at the heart of the plea of lis pendens.[25]There is no reference in the 2004 Rules to the doctrine of lis pendens or lis alibi pendens . There is, however, a rule (Rule 18(7)) which contains provisions empowering the Employment Judge to act so as control and prevent improper or oppressive conduct by either claimant or respondent. There can be no doubt that if the circumstances in which a claimant presented a second claim to an Employment Tribunal, where there was already a pending complaint for the same claim, showed that the claimant was acting improperly or oppressively, that would fall to be characterised as vexatious. It would then be open to the respondent to move for strike out of the second claim under rule 18(7)(b). The same would apply if a claimant whose complaint had been determined by an Employment Tribunal presented a subsequent claim in the same terms as his original claim. Subject to the exceptional circumstances identified by Mr Mitchell, he is unlikely to be able to resist the contention that he is acting vexatiously in doing so.[26]I observe that it was not suggested by Mr Miller that the claimants had acted vexatiously in presenting the Second Wave Claims. No doubt the respondents would have moved for strike out under Rule 18(7)(b) if that had been their position. That motion is, however, conspicuous by its absence in the history of this litigation.[27]Having observed, therefore, that a respondent who considers that the presenting of a second claim is improper and/or oppressive has a remedy under Rule 18(7) of the 2004 Rules, I turn to the question of whether a respondent may also resort separately to the common law doctrine of lis pendens.[28]I take, firstly, the submission that certain comments made by Burton P in the case of Bryant are authority for the proposition that the doctrine is separately available. That case concerned a finding by an Employment Tribunal that it did not have jurisdiction to hear the claim of claimant who had been employed by the respondents only in Italy. In a section of the judgment which refers to the jurisdictional provisions of the Brussels Convention, there is reference to the respondents’ counsel indicating that if the claimant was thereafter going to seek to bring a claim for unfair dismissal in the Italian courts, it would be unfortunate if such a claim were to run alongside a claim in London for wrongful dismissal. At paragraph 35, Burton P comments:
“But if any of that is to arise, it does not arise now. When there are no proceedings in Italy, the only claim is one which, on the face of it, for the reasons we have given, Mrs Bryant is fully entitled to bring for breach of contract. Questions of stay, or even dismissal, on grounds of lis alibi pendens ……. may no doubt arise at some future stage.”
[29]Accordingly, the comments were evidently obiter but perhaps more significantly they would seem to be made, firstly, in the context not of envisaging Employment Tribunal proceedings in England but of envisaging court proceedings for wrongful dismissal, and secondly, in the context of lis alibi pendens applying in the Convention sense rather than at common law. I do not, therefore, consider that it can be regarded as authority for the proposition that lis pendens is available as a plea in the Employment Tribunal.[30]Moving to the submission that the authorities show that res judicata is available in the Employment Tribunal as a separate, stand alone, plea, I refer firstly to the Scottish case of Boyce . Certainly, in paragraph 8 of the opinion of the Court that was delivered by Lord Marnoch, he mentions the plea of res judicata in the Employment Tribunal context. However, he does not say that the court has concluded that it is available in the Employment Tribunal as a stand alone plea. Rather, he refers to the need for the principle underlying the plea to be applied “in some way” to tribunal proceedings. Also of note is his reference there to the fact that the Extra Division in the case of Waydale Ltd v DHL Holdings (UK) Limited [2000] SC 172 were “not averse” to extending the doctrine of res judicata within the court system “through the medium of the Rules of Court” (my emphasis). Waydale involved a determination of the issue of whether the plea of res judicata applied in a case where the prior action had been disposed by way of decree of dismissal rather decree of absolvitor. In discussion, the Extra Division referred to the possibility of the Rules of Court structuring certain procedures so as to allow for the res judicata effect to be achieved even although an issue had been determined after a debate on relevancy without a determination on the merits of the cause, circumstances which would normally, at best for a defender, have potential only for a decree of dismissal. The point that Lord Marnoch seems, accordingly, to make, is that relevant procedural rules may be worded so as to meet the underlying principle of the plea of res judicata without the circumstances requiring to be such that the strict requirements of the doctrine are met.[31]Thus, whilst recognising that Lord Marnoch clearly thought that the principle of res judicata ought to be available in an Employment Tribunal, I am not persuaded that Boyce which predates the 2004 Rules, is authority for the proposition that it is available separately from those Rules.[32]I turn now to the history of the authoritative discussion of the plea of res judicata in the Employment Tribunal context, in England.[33]In the case of Green v Hampshire CC [1979] ICR 861, where claimants who had been unsuccessful in their claims before the National Industrial Relations Court had commenced proceedings in the Chancery Division of the High Court in respect of the same subject matter, Fox J said, at p. 864:
“ …each of these matters is res judicata. For the application of that doctrine there must be a judicial decision pronounced by a judicial tribunal. It is clear that a statutory tribunal such as the industrial tribunal is a judicial tribunal for the purposes of the doctrine: see Spencer Bower and Turner , Res Judicata, 2 nd ed. (1969), para 24 and the cases there cited, and I see no reason to doubt that it was a judicial decision. The tribunal gave a full reasoned judgment. It contained an investigation of the facts, an analysis of the facts, findings of fact, and lastly, the application of the law to those findings.”
[34]Green was referred to in the case of Munir v Jang Publications Ltd [1989] ICR 1 , by Dillon LJ, when rejecting what had been said at an earlier stage in the case by this Tribunal, Sir Ralph Kilner Brown presiding, namely, that as a general rule, there was no place for the principles of estoppel or res judicata in the field of industrial law. Dillon LJ said:
“I am quite clear, however, that as a general proposition of law what I have cited from Sir Ralph Kilner Brown’s judgment cannot be correct. It is inconsistent with earlier decisions of the National Industrial Relations Court or the Employment Appeal Tribunal in Curtis v James Patterson ( Darlington) Ltd 1974. ICR 88 and Green v Hampshire CC 1979. ICR 861 . It seems to me that, in the circumstances of the present case, there would indeed have been res judicata or issue estoppel – it matters not which - on the issue ...”
[35]In Staffordshire CC v Barber [1996] ICR a question arose as to whether the plea of res judicata in respect of the dismissal of a claimant’s claim by an industrial tribunal could be elided in circumstances where the dismissal followed the claimant’s withdrawal of her claim and she later sought to raise fresh proceedings in the light of a subsequent decision of the House of Lords that she considered to be favourable to her claim. The Court of Appeal was satisfied that the dismissal of the first claim by the Tribunal was a judicial decision and that although no evidence had been heard, that did not: “….prevent the decision operating by way of res judicata.” ( p.397D-E, per Neill LJ).[36]Neill LJ added, at p. 397H:
“ …I should deal with the subsidiary argument advanced on behalf of Mrs Barber to the effect that there were exceptional circumstances which prevented the application of the ordinary principles of res judicata and cause of action estoppel. It seems to me, however, that this argument is bound to fail. It is sufficient to refer to a passage in the opinion of Lord Keith of Kinkel in Arnold v National Westminster Bank plc 1991. AC 93, 104 : Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened .”
[37]Whilst Barber may be read as indicating that res judicata applies in Employment Tribunals, as a separate doctrine, in exactly the same way as in the courts, the later decision of the Court of Appeal in Rothschild Asset Management Ltd v Ako [2002] IRLR 348 , which (in common with the Court of Appeal’s decision in Sajid v Sussex Muslim Society [2002] IRLR 113 ) distinguished Barber , is indicative of a different approach. There, the claimant had withdrawn her claim, prompting a dismissal order, but she did so with the intention of resubmitting it, having added the names of further respondents; she thought that that was the appropriate course of action and never intended to discontinue her claim. Mummery LJ refers, at paragraph 1, to it being:
“ …desirable for the law to strike a sensible balance between (a) the application of the principle of finality in legal proceedings and (b) the public interest in full and fair public hearings of grievances in the relatively informal setting of tribunal procedures.”
[38]In the same paragraph he adds:
“The facts of this case shine a spotlight on the glaring injustices which could arise from the mechanical application of cause of action estoppel to all cases in which proceedings are withdrawn from the tribunal.”
[39]He then carefully considered the authorities relating to the plea, looked for limits of its application in the Employment Tribunal setting and found limits, namely that the facts and circumstances surrounding the dismissal of the original action should be examined as should the knowledge, understanding and intentions of the parties at the time of that dismissal. He considered the Employment Tribunal procedural rules, as they then were, noted that there was no alternative to dismissal when a party withdrew a claim and was evidently concerned, not surprisingly, that if the doctrine was applied it might in fact be operating more strictly in the Tribunal setting than in the courts, where the CPR allowed for the raising of a fresh action with the permission of the court.[40]At paragraph 35 of Rothschild , having referred to Barber and the case of Lennon v Birmingham City Council [2001] IRLR 826 , where Buxton LJ had said that the application of the doctrine turned on the “simple fact that the order was made”, rather than on the reasons why the court’s decision to dismiss was consented to by the other party or the court’s reasons for making the order, Dyson LJ said:
“I do not believe that Buxton LJ was saying that the dismissal of an application following withdrawal gives rise to a cause of action or issue estoppel even if it is clear that the applicant did not intend to abandon his claim or cause of action. No authority was cited to us for such a proposition which is both so starkly far- reaching and capable of giving rise to serious injustice.” and at paragraph 41 , he adds: “ …what emerges from these authorities is that there is no inflexible rule to the effect that a withdrawal of judgment by consent invariably gives rise to a cause of action or issue estoppel. If it is clear that the party withdrawing is not intending to abandon the claim or issue that is being withdrawn, then he or she will not be barred from raising the point in subsequent proceedings unless it would be an abuse of process to permit that to occur. On the facts of the present case, it is clear that Ms Ako did not intend to abandon her claim. Nor would it be unjust or unfair as between the parties to permit her to start again: no abuse of process is involved here.”
[41]It seems then that the position in England so far as the application of the doctrine of res judicata in the Employment Tribunal setting is concerned is as follows. Firstly, a judgment of an Employment Tribunal is a judicial decision and so the doctrine can apply to it but, secondly, there may be circumstances in which the plea can be elided; the rule is not to be regarded as inflexible and will not be applied if it is clear that injustice is liable to result. As to whether the doctrine is seen as applying because it is available as a separate plea that lies outwith the four corners of the Employment Tribunal Rules, that is not, in my view, clear. That does not, perhaps, matter, however, since the clear view of the Court of Appeal is that the doctrine need not operate as an absolute bar.[42]I have taken some time to review the authorities on the availability of the doctrine of res judicata or, at least, the principles which underlie it, in the Employment Tribunal, partly because its independent existence was the main plank of the respondents’ argument before me and partly because I see that review as demonstrating that even if it is available as a separate plea, the authorities point to the need to consider it in the Employment Tribunal context. In Scotland, according to Boyce , that involves looking for the principle underlying it to be available in Employment Tribunal procedure and in England that involves being wary of the risk of strict or technical application of the doctrine resulting in injustice and adjusting it accordingly. Neither approach would appear to involve regarding the plea in a vacuum, outwith the Employment Tribunal context.[43]I also observe that none of the authorities referred to involve a consideration of whether or not Rule 18(7) of the 2004 Rules would meet the need to have a procedure available to meet the quite proper objective of protecting against the injustice that can arise from relitigation of an issue; to protect, as it was put in Barber :
“... society and its citizens from the obsessions and frivolities of serial suers, but also to ensure that , even for those who litigate disputes in good faith, all cases come to an end .”
(p.386 D per Mummery J)[44]The serial suer would be at risk of being found vexatious but moreover, it seems likely that any litigant covered by Mummery J’s description would be vulnerable to an Employment Judge simply finding, under Rule 18(7)(a) that, having already litigated the issue, they have exhausted their entitlement to the remedy sought.[45]The Employment Judge referred to res judicata as being analogous to lis pendens and insofar as the operation of both doctrines involves examining two litigations relating to the same parties and subject matter that appear to have the same objective, there is, I agree, an analogy that can be withdrawn. I do not, however, agree that it follows that lis pendens is available as a separate plea before the Employment Tribunal. The mischiefs against which each doctrine seeks to protect are not the same. In res judicata, the defending party has been subjected to being litigated against and has experienced the benefit of that litigation being finalised. It has been closed and from that moment he has been entitled to assume that he can live his life free of it. Lis pendens is different. Stopping the second litigation does not free the defending party of the stress and uncertainty of being litigated against. Further, it is not only the defending party that has an interest in preventing an improper and oppressive accumulation of ongoing litigation; the court also has such an interest and, in the Employment Tribunal context, that interest can be furthered by sisting the second claim at a case management discussion if no Rule 18(7)(b) application is made or is not successfully made. In the court context also, whilst past decisions tend to show the plea being treated as a matter of competency (see: e.g. Wallace v Henderson [1875] 2R 999(IH); Levy v Gardner [1965] SLT (N)86) there would seem to be no reason in principle why the court could not, equally, sist the second claim. It is also of note that if the first litigation is in another jurisdiction, the defending party has to endure the subsistence of the two litigations; the plea is not applicable if the first jurisdiction is a foreign one ( Rothfield v Cohen [1919] 1SLT 138), other than under the Lugano Convention (Article 27) where proceedings in the court second “seised” of a litigation must stay its proceedings pending a decision as to the jurisdiction of the first court.[46]I turn then to the Canada Trust case so as to note that, in England, the common law has no lis pendens rule (per Lord Hoffman at paragraph 7) and insofar as one has been found there, it is one which was, as Lord Hoffman put it, been “invented” by the Court of Appeal for the purposes of Article 21 of the Brussels Convention, the forerunner of the Lugano Convention. It would, accordingly, seem to follow that if the respondents were correct about the separate availability of the plea in Scotland, it is a benefit that would be available to a respondent in respect of a claim in a Scottish Employment Tribunal but not in an English one. In a jurisdiction which extends throughout Great Britain, that does not seem satisfactory.[47]As regards the reference to the Marquess of Breadalbane case, tempting though it is to regard the clear statement that lis alibi pendens was not applicable because the Crofters Commission was not a court of law as determinative of the matter, the report of the case does not contain any discussion of the issue and it appears to have arisen in the context of a question as to whether pending proceedings in the Crofters Commission operated so as to bar the continuance of an action of declarator in the Court of Session rather than a question of whether one set of proceedings in that commission would operate so as to bar a second set of proceedings being progressed. The analogy is not, accordingly, helpful and, in any event, standing the approach of the Chancery Division in the case of Green , I have doubts as to whether such a restrictive approach would apply in modern times.[48]In all these circumstances I am, accordingly, not persuaded that the respondents’ argument is well founded. Whilst the principles underlying the plea of lis pendens or lis alibi pendens may, plainly, be relied on in support of a motion for sist at a case management hearing or a strike out motion under Rule 18(7)(b), I cannot conclude that the doctrine is available to a respondent separately from the procedure in the 2004 Rules. It also requires to be borne in mind that those rules are a self contained set of statutory rules designed to describe, explain and, in some respects, limit, the powers of a statutory tribunal. Section 7(2) of the Employment Tribunals Act 1996 makes it mandatory for proceedings to be instituted in accordance with Employment Tribunal regulations and section 7(3) envisages such regulations making provision for the procedure to be followed, which is what the 2004 Rules do. It is difficult to accept that an Employment Tribunal can look beyond those rules to find further powers yet that is what, in effect, the respondents would have it do. I am not persuaded that they are right about that. Did the First Wave Claims and the Second Wave Claims raise the same question?[49]In the event, this question is academic but I am not persuaded that Mr Mitchell’s argument was correct. I agree with the reasoning of the Employment Judge. Further, the plea of lis pendens may be sustained where there is coincidence in only part of the action. Here the central issue between the parties is the same. Did the Employment Judge have a discretion?[50]This point too is now academic but I would make one or two observations.[51]The Employment Judge did, in my view, have a discretion. The correct approach was to consider whether, as a case management decision under rule 10, the Second Wave Claims should have been sisted. The question of whether or not she should have exercised a Rule 18(7)(b) discretion does not arise as Mr Miller confirmed that it was not the respondents’ case that, if the Tribunal had any discretion in the matter, the action should nonetheless have been dismissed. As I understand the respondents’ position it was, simply, that lis pendens was available as a separate plea and that, if applicable, it could only result in dismissal.[52]I have already commented that I do not see that, in principle, the outcome at common law might not, in an individual case, be that the second action is sisted rather than dismissed whilst recognising the force of the respondents’ argument that Flannigan would seem to suggest that once the court is satisfied that there is a “double dependence” subsisting at the time it considers the plea, it must dismiss the second action. That said, there is a reference there to general considerations of whether or not the second action was unreasonable or vexatious which might seem to suggest that they are relevant to any consideration of the application of the plea. Then, in Alston , although Lord Anderson states, at p.2, that it is “well settled” that if the relevant circumstances exist then “the action which is brought into Court later in time falls to be dimissed”, his use of the expression “falls” can perhaps be seen as something less than mandatory and he explains that dismissal would be:
“on the ground that there is depending in Court a process between the same parties appropriate for the trial of the question at issue.”
[53]When his explanation of the “ground” is considered in the light of the circumstances of the present case, it is certainly arguable that it does not apply. I question whether it can confidently be said that the First Wave Claims are “appropriate” for the litigation of the question at issue, namely the equal pay issue, when the requirements of the statutory grievance procedures may be found to be such as to prevent the Tribunal ever considering the question at issue in the First Wave Claims. There does seem to be something deeply unattractive in the proposition that the respondents can, by relying on an entitlement afforded them by those grievance procedures, an entitlement which Parliament devised for the purpose of assisting the resolution of claims without litigation, seek to prevent the claimants proceeding by way of a litigation in respect of which they have no grievance procedure complaints. The respondents do not suggest that they have not been afforded their statutory entitlement regarding the intimation of grievances so far as the Second Wave Claims are concerned. That unattractiveness deepens on observing that, further, they do not suggest that there is anything improper in the claimants having proceeded in this way. I cannot accept that, in these circumstances, the common law would have required that there was only one answer. The need to allow for a discretion, had the common law plea been available, seems to me to be obvious. Disposal[54]In the circumstances, I will pronounce an order upholding the appeal and remitting the case to the same Employment Tribunal to proceed as accords.