Paymentshield Group Holdings Ltd v Halstead (Practice and Procedure : Postponement or stay) [2011] UKEAT 0470_11_0909

EAT
Paymentshield Group Holdings Ltd v Halstead (Practice and Procedure : Postponement or stay)
[2011] UKEAT 0470_11_0909 · 2011-09-09
[1]This case is about the exercise of discretion by two Employment Judges in deciding not to order a stay of Employment Tribunal proceedings during the time in which there is an outstanding letter before action and draft particulars of claim in the High Court served by the Claimant, Mr Halstead, upon the Respondent, Paymentshield Group Holdings Ltd. Introduction[2]It is an appeal by the Respondent in those proceedings against, substantively, the Judgment of Employment Judge Etherington, issued with Reasons on 19 July 2011 at London Central. The parties were there represented, different counsel having been engaged today; for the Claimant Ms Katherine Apps and for the Respondent Mr Michael Duggan.[3]The Judge was asked to consider the same issue as had been put before Employment Judge Lewzey relating to a stay of the proceedings brought by the Claimant against the Respondent. She had declined to impose a stay. The precise mechanism of this is not important because the effect is that, on 26 September 2011 for five days, there is to be tried the Claimant’s case of unfair dismissal and breach of the Working Time Regulations in respect of holiday pay. The claim is weighed on the basis of an ordinary unfair dismissal and automatic unfair dismissal for breach of the whistleblowing provisions under s.103A and part IVA of the Employment Rights Act 1996 . The Respondent denies the claims.[4]The essential issue before Employment Judge Etherington was whether there should be a stay on the upcoming Tribunal proceedings. He decided there should not and that is the subject of the appeal, which has been expedited. Tribute is to be given to the parties and their advisers for the very prompt way in which the papers have been prepared for me today and for getting this case on with careful skeleton arguments to match. The legislation[5]The relevant provisions of the legislation are not in issue. Judges in the Employment Tribunal have very wide discretion over case management including the power to order a stay of proceedings; see for example rule 10. The facts[6]I will briefly describe the facts insofar as they are relevant to the proceedings today. The Claimant was employed by CCV Limited, pursuant to what is known as the original contract, on 5 July 2007, on what is described to me as a very substantial remuneration package. A new contract came into existence at some stage in relation to the current Respondent, Paymentshield, and, according to Mr Duggan, Paymentshield terminated the relationship on 23 December 2009 (that is in dispute). On 22 March 2010 the Claimant issued a claim in the Employment Tribunal; that is, on the last day for lodging such a claim, and it was met by a response.[7]A CMD was conducted in Liverpool whence the case was transferred to London. On 7 December 2010 a pre-action conduct letter, which was a letter before action under the CPR, was issued by the Claimant’s solicitors, Messrs Sheridans, and attached to it was a draft particulars of claim. The letter said as follows:
“This is a letter before action pursuant to the CPR Practice Direction on Pre Action Conduct. We look forward to your response by 15 December 2010 . As there are ongoing proceedings in the Employment Tribunal, for which dates have been listed for trial in early February and your client has already been appraised of the factual basis for this claim for many months, we consider this period of less than 14 days for a response to be reasonable. It is in the interests of both parties, if this matter can be resolved amicably, that it be done before Christmas. For your instructions, we attach draft particulars of claim setting out the nature of Mr Halstead’s claim.”
[8]The draft particulars of claim invoked a number of causes of action, including wrongful dismissal and a claim for economic duress in relation to the change between the original and the new contract. The Claimant also claimed breaches of express and implied terms and interest. The relief sought was rescission of the new contract and/or damages, damages for breach of contract, debt and interest under section 35A of the Senior Courts Act 1981 . In material which was available to the Employment Judge the claim in the High Court was put at about £1 million.[9]On 21 December 2010, that is, within 14 days of the pre-action letter, a stay in the Employment Tribunal was sought by solicitors for the Respondent and Sheridans consented on 24 December. To that end Employment Judge Lewzey imposed the stay by consent. On 23 March, Sheridans wrote asking for the stay to be lifted; the sole ground was stated to be financial for they said this:
“On 24 December 2010, we wrote to the Tribunal to confirm that the Claimant consented to the Respondent’s application to stay the above proceedings. The Claimant’s consent to the stay was based primarily on his understanding at the time that financially, he would be in a position to pursue High Court claims in advance of his Employment Tribunal claims. Unfortunately, due to unforeseen funding issues, this is no longer the case and as a result, the Claimant will require such compensation he receives from the Employment Tribunal to fund any subsequent High Court litigation. Additionally, despite our best efforts, High Court without prejudice negotiations have proved unsuccessful. Therefore, we now apply pursuant to Rule 10(1) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 (the “Rules”) to lift the stay imposed by the Tribunal on 4 January 2011. The Claimant confirms that should the stay be lifted, he will not pursue any High Court claim in tandem with Tribunal proceedings and that he will wait until Tribunal proceedings have concluded prior to issuing any High Court claims. If the Tribunal consents to the Claimant’s application, in accordance with the original Case Management Directions of 23 August 2010 and the overriding objective of the Rules, we respectfully request that the Tribunal sets a new deadline of 20 April 2011 (4 weeks’ time) for exchange of witness statements and the earliest available date thereafter for a four day hearing at London Central.”
[10]The Respondent objected. The Claimant had looked forward to a response by 15 December; in fact a response did not come in that time but emerged on 25 March 2011, from Messrs Reynolds Colman. On 23 May 2011 Employment Judge Lewzey lifted the stay. The sole reason for lifting the stay was that no High Court proceedings have been issued and so it was not in accordance with the overriding objective for the stay to remain.[11]An appeal was lodged but effectively the real vehicle for the appeal is a further decision by Judge Etherington.[12]That is a representation on his behalf that if the case becomes live at the Tribunal there will be no parallel proceedings in the High Court and that he would await the outcome of the Tribunal proceedings. It does not indicate anything other than a decision not to proceed with the High Court and the Tribunal proceedings at the same time . When he wins compensation at the Employment Tribunal he will proceed in the High Court.[13]Employment Judge Etherington heard argument from counsel, addressed substantial skeleton arguments submitted on behalf of both parties and in a generic statement said, “7. I have considered the case authorities presented to me. I do not propose to list them - we are clearly aware of what they are and indicate. I have also read the draft particulars of the Claimant’s High Court claim and revisited the Claimant’s application to the Tribunal (ET1) and the grounds of response (ET3).”[14]He summarised the position as follows:
“8. The application is to stay the proceedings in the Tribunal because of the Claimant’s stated intention to present a case to the High Court. He has gone further than merely state the intention; he has provided draft particulars of claim which go into some detail. The Respondent asserts that because the factual issues regarding the claims in these Tribunals and the potential claims in the High Court are so intertwined that in the light of authority it would be the better and more appropriate course to stay the action here affording priority to that in the High Court. Continuing the action before the Tribunals would and certainly could, they assert, unfairly affect adversely their case were it to proceed in the High Court. They say so for all the reasons adumbrated in the cases cited to me today.”
[15]In the course of the exercise of discretion

the Judge made the following findings:

“10. The Claimant argues on the other hand that the factual issues here relate to the statutory jurisdiction which the Tribunal operates and that they could therefore properly be dealt with in the Tribunals given the very different jurisdiction in the High Court. The Respondent counters that factual findings in [the] Tribunal will have a significant impact on any High Court case and would, to use the expression found in one of the cited authorities, ‘be in danger of imposing a straight jacket on the High Court judge.’ 11. Having considered the documents mentioned, I have no doubt that factual findings following the continuation of the case before the Tribunal would have significant import in the High Court. The claim before the Tribunal rests upon an assertion that the Claimant was dismissed because he had made protected disclosures and he refers to a series of those. He also asserts that the Respondent’s assertion before dismissal that his post was redundant was untrue and simply a cover for the true reasons for dismissal - the disclosures; there was no redundancy situation. 12. Additionally the Claimant in the draft particulars of claim alleges he was dismissed because the Respondent wished to avoid paying him the generous remuneration package to which he was entitled. This the Respondent characterises as a contradiction of the grounds advanced before the Tribunal; the Claimant says it is no more than a further explanation of what lay behind his dismissal. 13. It seems to me that it is inevitable that the Tribunal would when dealing with the case before it, have to look across the piece at all of these issues as would the High Court were it to become seized of the matter. The issues, evidence and facts cannot neatly be compartmentalised. For instance the Respondent is not going to ignore the statements made in the draft particulars of claim if tackling the Claimant before this Tribunal.”
[16]Pausing at that stage it looks as though the stay will be imposed. But the Judge went on to decide the matter by reference to the issue of rescission, as to which he said this:
“14. The question of rescission and its effect has been raised but not argued in detail. In my view the High Court, were circumstances found to justify consideration of the award of that relief and the court to grant it, would have ample power to deal with the consequences of any findings in the Tribunals and in particular any financial ramifications. And indeed one may doubt whether rescission will be available to a Claimant who stands here before the Tribunal seeking to enforce a contract which he says should not really be in existence and who has acted under the contract for a period of months in circumstances were there may be no agreement explicit or otherwise to rescind the contract and placing the parties as though the contract had never existed might be somewhat problematic.”
[17]One consideration which loomed before him and has loomed large before me is what is broadly described as the funding issue. But

the Judge dismissed this as not in itself persuasive, for he said the following:

“15. That the Claimant says that he cannot take action in the High Court because of his financial position and that he needs an award from this Tribunal to fund his claim before the High Court is not in itself persuasive. Firstly he is not guaranteed a finding in his favour here. Were he to be successful he cannot be sure of an award of a sum sufficient to fund a claim in the High Court. Perhaps questions of appeal would arise. The Claimant also accepts that a finding here may actually prejudice him, a risk he says he accepts.”
[18]The background to that is that the Claimant has the advantage of insurance - at least up to today - which has provided for the legal expenses in part and he has in part funded the case.

The Judge then decided that the matter was to be balanced and this is the test which he set himself:

“16. In the end my decision has come down to balancing these various and in part conflicting matters to arrive at what I hope reflects a just and equitable approach and considering the balance of prejudice.”
[19]I will come back to whether that is the correct test. He then appears to have had further reflection on the funding issue by what he said in paragraph 17:
“17. If I order a stay then the Claimant is put in the position of either abandoning his High Court claim because he has no funds or of mounting what would not be an easy action, perhaps even for lawyers but certainly for a non lawyer, before the High Court. Abandonment of his right to put a claim before the High Court (the course urged by the Respondent) would be a major prejudice to him and the former prejudicial to a degree. If I do not order a stay then the Respondent fears prejudice for reasons set out in the authorities. But there is no certainty that there would be any such prejudice; the action would proceed here with the anomalies to which I have briefly referred which would be the subject of proper scrutiny by the Respondent and the Tribunal in the light of their knowledge of the Claimant’s contentions across all issues. Should an action follow in the High Court I have no doubt that any difficulties arising as contended by the Respondent could be resolved justly and without prejudicing either party’s case.”
[20]His conclusions followed, and they do not expressly deal with the funding issue, but Mr Duggan submits that there is some sort of rehearsal of that matter in the succeeding paragraphs and I agree there is. “18. At the end of the day it is a matter of balance. Significantly it is no less a matter of balance and discretion when there are contemporary proceedings actually in progress before the two bodies. Were there two sets of proceedings now underway it would still be possible to argue for those to continue contemporaneously before the Tribunal and the High Court 19. Here, there are no contemporary proceedings; there may never be any contemporary proceedings especially given the Claimant’s statement that he will commence High Court proceedings, if at all, only after the Tribunal proceedings have concluded; and there may never be such an action then. I do not know of and have not been alerted to the existence of any power residing in any court enabling it to order the Claimant to commence or maintain an action before the High or other court. By staying the action now it would in a rather roundabout way bring pressure on the Claimant to do so but in my view that would be a draconian exercise of power. Though Mr Wynne’s arguments are attractive I have decided on balance that the proper decision today is not to order a stay but to allow the proceedings to continue before the Tribunal. Weighing the balance of prejudice as between the parties it is my view that staying the action before the Tribunal would have a greater prejudicial impact on the Claimant’s case than allowing it to continue would have upon the Respondent’s case. The difficulties perceived as possibly arising from two sets of proceedings (whether contemporaneous, consecutive and acknowledging that in any event there is no certainty that the High Court proceedings would ever be lodged) are a much less likely source of prejudice and injustice than would be the forced abandonment of the Claimant’s claim; or its forced presentation; and maintenance with him unrepresented.”[21]The case therefore was listed for trial. The Respondent’s case[22]On behalf of the Respondent, Mr Duggan contends that all the elements necessary for the stay to be imposed were found in this Judgment. What was missing in the factual circumstances on the authorities which I will review is the actual issue of proceedings and service of them in the High Court. Mr Duggan contends that the principles remain and there are firm findings by the Judge as to issues such as overlap and issue estoppel.[23]With some force, Mr Duggan contends the Claimant knew what the effect of the High Court proceedings was, for he immediately agreed to a stay after he had issued the letter before action and draft particulars of claim, and then changed his mind. Mr Duggan recognises that what is happening here is the exercise of discretion by a Judge. He does not contend that the mere existence of a possible claim against a Respondent should give it the right to stay ongoing proceedings in the Employment Tribunal, but this case involves the intention of the Claimant to pursue High Court proceedings.[24]As to the existence of a European Union‑derived right - the claim under the Working Time Regulations - Mr Duggan contends that that could not be separated because it depends so much on findings necessary both in the ET and in the High Court on the nature of the contract and the relevant dates. The Claimant’s case[25]With vigour Ms Apps contends that the Claimant is denied access to the seat of justice if a stay is imposed, for he has no money to pursue the claim in the High Court and he would be locked out of it forever. The Judge did not commit an error of law. The passages which I have cited indicate his attention to the relevant authorities and his discretion should be respected. The legal principles[26]Both parties relied upon the Judgment I gave in Mindimaxnox LLP v Gover & Ho UKEAT/0225/DA and both parties recognise that it establishes the principles for a decision to be made where there are Employment Tribunal and High Court proceedings. Counsel divide, however, on the applicability of those principles in a case where no High Court proceedings have been issued and served. Ms Apps contends that Mindimaxnox has no part to play where no actual proceeding are issued. The principles in Mindimaxnox are these. “27. From that general background, five submissions are made:(1) The more appropriate forum is the High Court, since there are complex factual matters. 28. This is an invidious position to inflict on an Employment Judge. It is clear that Employment Tribunals today deal with highly complex issues relating characteristically to equal pay, discrimination in its nine strands and to major bonus issues, for example amongst traders in the City. I do not accept the simple proposition that because there are complex factual matters the Employment Tribunal’s jurisdiction is usurped. That is not the central question. 29. Given there are complex factual matters in the tribunal proceedings is it more appropriate for those matters to be determined by the High Court? It is a question of balance (see First Castle Electronics Limited v West [1989] ICR 72 at 78 and the reference I have given above to Carter ). It is also the case that where the issues of fact are supported by voluminous documents that too will point to the matter being better determined in the High Court (see JMCC Holdings Limited v Conroy [1990] ICR 179). 30. I accept in principle Mr Kibling’s support for the expertise of Employment Tribunals, I indeed endorse it. The fact is that the authorities which have been shown to me indicate where there is a very substantial factual dispute the proceedings are more appropriately to be brought in the High Court. The Judge does not seem to have been alert to that distinction. He seems to have taken the view that there was some criticism of the Employment Tribunals as not having the expertise. If he did that was misplaced. There is no such criticism; it is simply a question of where it is more appropriate to decide complex factual matters. 31. There are rules of evidence which are important to resolve in disputes such as this. It has been submitted to me that a Judge of the High Court, sitting alone, with preparation time being provided by the court and reading time and making a decision on his or her own, is an expeditious way to deal with these matters. There may be some force in that.(2) Embarrassing the High Court. 32. This is the language used in First Castle at page 78. It is that findings by the Employment Tribunal could be embarrassing for a Judge in the High Court. A similar view is taken by Sir Ralph Kilner Brown in the Employment Appeal Tribunal in Automatic Switching Limited v Brunet [1986] ICR 542 at 545; he talked about putting the High Court Judge in a straightjacket. A similar approach was taken by HHJ Ansell in GFI Holdings Limited v Mr D Camm UKEAT 0321/08, who said this:
‘It is generally desirable to dispose of High Court actions first where there are issues in both sets of proceedings which are substantially the same.’
The point is that the Employment Judge, again, seems to have been of the view that there would emerge either res judicata or issue of fact estoppels. All of the authorities where this arises indicate preference for the High Court rather than the Employment Tribunal: see, for example, Jacobs v Norsalta Limited [1977] ICR 189 at 192, where it was thought to be preferable for the tribunal to have the High Court judgment than for the High Court to have the tribunal’s judgment. 33. It appears that the Judge in our case specifically rejected the contention that findings of fact by the Employment Tribunal would embarrass the High Court. In my judgment he erred in that because they plainly would. They would impinge upon the Judge who would find it difficult not to be bound by the findings. (3) Complex legal matters. 34. It is contended that complex legal matters are better decided by the High Court than the Employment Tribunal. Again this is a difficult submission to make and I accept from Mr Kibling that Employment Tribunals are making decisions on complex legal matters all the time. Employment Tribunals are now bound by judicial oaths and have responsibilities to determine the law as well as to be an employment jury. 35. One issue which arises in this case is said to be based upon BNP Paribas v Mezzotero [2004] IRLR 58, a judgement of Cox J. Whether or not that is to be applied in this case seems to me to be irrelevant. A judgment of the Employment Appeal Tribunal is binding on the Employment Tribunal and if the Respondents wish to rely on it they will be better off in the Employment Tribunal. On the other hand it is to mistake the simple principle. If a judgment is made by a Judge, at whatever level, which is correct, it will be followed whether regarded as binding or not by a subsequent Judge. It is relevant to consider the complexity of legal issues and it is plain that in this case there will be some complex legal issues in relation to the discussion of the bonus and so on. 36. I accept that the Judge did consider the complexity of the legal issues but again he ought to have recognised that these hugely expensive claims in the Employment Tribunal will be susceptible to a detailed analysis in the High Court, at least in respect of Mr Ho, which will influence the decision making in the Employment Tribunal if that is the sequence in which the cases are heard. (4) Considerable overlap. 37. In my judgment Mr Griffiths is correct when he relies heavily upon the finding by the Judge that there is considerable overlap. That is the premise upon which the Judge ought to have decided that this matter should be left to the High Court. In terms of value it is 99 per cent. The only real issue is the statutory tort of unfair dismissal and I say ‘only’ bearing in mind the comments I have made above about the importance of that matter. The factual material is the same in both jurisdictions. It seems to me that where there is considerable overlap it is appropriate to cede to the High Court and the Judge was wrong not to regard this as a compelling reason for rejecting the application for a stay. (5) The small financial value. 38. It is of small financial value and I accept the imagery of Mr Griffiths. The central issue in the case will be the amount of the bonus and whether there is entitlement to it. More issues can be determined in the High Court than in the Employment Tribunal. Mr Ho will have to face an issue relating to what essentially will be a counterclaim. It will give satisfaction, if that is the right word, to the parties to know that the central issues, in terms at least of money, and some of the issues relating to share ownership, will have been determined once in the High Court.”[27]Reassuringly these principles are described by counsel as clear and helpful. In Unison v Brennan UKEAT/0580/07 Elias P indicated the importance of European Union‑derived rights - this time equal pay - being heard expeditiously in the Employment Tribunal.[28]The principles in relation to the exercise of discretion as well as those set out in Mindimaxnox appear in the Judgment of Henry LJ for the Court of Appeal in Noorani v Merseyside TEC [1999] IRLR 184 :. “32. I am satisfied, contrary to what the Employment Appeal Tribunal found, the ET were here exercising the classic discretion of the trial judge in the issue of witness summonses and in like matters. Such examples of such a discretion lie not only in the issue of witness summonses but whether to grant an adjournment or whether to order the trial of a preliminary issue etc. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was ‘outside the generous ambit within which a reasonable disagreement is possible’, see GvG [1985] 1 WLR at 647.”[29]Similarly Wall LJ in Canadian Imperial Bank of Commerce v Beck [2009] EWCA Civ 619 said the following:[23]“23. As to the correction of an error of law committed by a judge who is exercising a judicial discretion, the law is equally clear. The leading case is GvG [1985] 1 WLR 647 , which contains references to the well-known judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 ALL ER 343 at 345. For an appeal to succeed, the exercise of discretion which is challenged must, in Asquith LJ's words: "exceed the generous ambit within which reasonable disagreement is possible". […][25]We make this point because Mr. Oudkerk, for the Bank, came near to submitting that it was simply not open to Judge McMullen QC to reverse the ET on a case management decision. In our judgment, that submission is manifestly untenable. Whilst, of course, a judge who makes a case management decision exercises a very broad judicial discretion and such decisions will be treated with deference by superior courts, the exercise of a judicial discretion which falls foul of GvG is an error of law and is capable of being corrected on appeal.” Discussion and conclusions[30]I prefer the argument of Mr Duggan and have decided that the Judge committed an error. It is common ground that the Judge was addressing what is described as the embarrassment of a High Court Judge (or the straightjacket on a High Court judge) in paragraphs 10-13 which I have set out above. He does not cite Mindimaxnox but there is a view taken as to the relationship between ET and High Court proceedings. Had this Judgment stopped there then there would be no doubt that the only decision available would be a stay.[31]The reasoning however went on to consider rescission. Given the overlap, and embarrassment of the High Court Judge, I do not regard as satisfactory the Judge’s finding that, as he put it, “the consequences of any findings in the Tribunals and in particular any financial ramifications” could be dealt with by the trial Judge. There is also an issue about rescission, which is a difficult contractual issue and which would be fully before the High Court in the draft particulars of claim. If the Tribunal, without that issue before it, were to decide the claim, then the matter would have to be revisited in a different way in relation to the relationship under the original contract.[32]The Judgment went on to consider the effect of Mr Halstead’s funding and came to the conclusion that that issue was not in itself persuasive. It was and is the central issue which he puts before the Tribunal and this Court: he cannot fund High Court proceedings without the winnings in the Employment Tribunal. But the Judge put that aside. Nevertheless, I accept Mr Duggan’s submission that it creeps back into the Judge’s thinking, because it is the basis upon which he finds in paragraph 17 that the Claimant would have to abandon his High Court claim. That reintroduction of the funding issue seems to me to muddle, as Mr Duggan puts it, the Judge’s conclusions. The conclusions do not expressly refer to the funding issue. But the Judge describes in a rather roundabout way bringing pressure on the Claimant as a “draconian exercise of power”. This reference to the figure from antiquity most cited in legal proceedings, Draco, from 7 th Century BC Athens, appears again and again, so often misquoted, as here.[33]Throughout this exercise the Judge is weighing the balance of prejudice. Given that the Judge on the joint position of counsel in the paragraphs I have cited - 10-13 - is to be credited with considering the embarrassment of the High Court Judge, there is no reflection of that in his balancing of the prejudice because the exercise has to pay attention to the triangular interests. Of course the parties are important, but the starting point of this jurisprudence is the effect of a decision in one part of the administration of justice upon another. Any constraint on a High Court judge is a public issue. The Judge does not factor into his conclusions the findings he had made about the overlap and this is an error. Besides, all of this is to do with the prejudice to the Claimant and his funding. There is no reference to any prejudice to the Respondent in waiting for this issue to be tried or any other factors the Respondent wishes to rely upon.[34]It also seems to me that the Judge did not consider the effect of the earlier concession by the Claimant of the stay. The Judge was influenced by the fact that there were no proceedings on foot; see the firm finding in paragraph 19. That is a clear reflection on the decision taken by Employment Judge Lewzey. But, what has to be borne in mind is that absent issue and service of a claim form, and before any reply by the Respondent to the letter before action, the Claimant himself decided to accede to the Respondent’s application for a stay before Christmas 2010. He has changed his position and is seeking, by this method, in my judgment, to keep both claims running.[35]I have some sympathy with the Claimant in his wishing to fund his High Court action from his Employment Tribunal winnings. But since the Judge regarded that as not persuasive in itself, it seems to me that further consideration of that issue would not arise. In any event it seems to me to be a misuse of the proceedings. It is based upon the conclusion that the Claimant will win substantial compensation and then go on, funded, to the High Court where he will win again. There are some flaws in that analysis. One obvious one is that if he has a good case in the civil court he will get his costs, but not in the no-costs environment of the Employment Tribunal. In any event, the funding issue as the driving force in the exercise of discretion to stay public proceedings in the Tribunal or the Court is one which the Judge did not describe as persuasive and I agree. In those circumstances the Judge’s error is in putting it back into the equation - see paragraph 17 - and in failing to include the embarrassment of the High Court Judge factor in the balancing of the prejudices.[36]It seems to me on this novel point that there is no difference in the principle to be applied when High Court proceedings have been issued, and been the subject of a pre-action conduct letter and a draft particulars of claim. This is not a case where there just may be a glint in the Claimant’s eye that he may seek in another forum from the Employment Tribunal to recover substantial amounts, say, for a bonus; that issue is not before me. But it seems unlikely that a Respondent would succeed in keeping the Claimant out of the Employment Tribunal just because for six years he might possibly issue proceedings. The principle applies where there has been issue and service of proceedings; see Mindimaxnox . In my judgment it is correct to extend it on the facts of this case, where there has been a solicitor’s letter in accordance with the CPR which, in practice, claimants have to issue lest there be consequences at some stage in costs. It is certainly regarded as an important part of the procedures. It is intended to get the parties to see what a case is and possibly avoid going to court, but it is an important and established part of the court’s practice in Section C of the Civil Procedure. It involved legal costs in its preparation and service and legal costs for the Respondent in providing a response and substantive reply. Here it was accompanied by draft particulars of claim so that the Respondent saw exactly what it is that is going to be claimed, and it had the effect of drawing from the Claimant a ready acceptance that his claim in the Tribunal must be stayed pending the outcome of this matter. What was right for him on advice to do in December 2010 is unchanged by the change of heart he has had in wishing to go first in the Tribunal. He did not have to utter the letter before action; he could have gone ahead with his Employment Tribunal case and the issues as to concurrence, and embarrassment of the High Court Judge, would not in my view have arisen, because it would simply be hypothetical. However, we have to deal with the facts as they are, and this is a clear intention by the Claimant to claim the remedies and relief above. The claim in the Employment Tribunal is now worth about £400,000 I am told.[37]I will set aside the order of Employment Judge Etherington. At the outset of this case, as in Mindimaxnox , both counsel invited me to make the decision today if I were in favour of Mr Duggan’s submission; that is, to exercise the discretion myself.[38]Ms Apps, in a careful intervention tactfully put, has asked me to correct certain parts of my Judgment. The principal issue relates to what is said in Automatic Switching Ltd v Brunette [1986] ICR 542, which I cited under the second principle in Mindimaxnox , and I recorded what had been put before me by counsel in that case, that I said all of the authorities where this arises indicate preference for the High Court rather than the Employment Tribunal. She is right to point out that Automatic Switching is an indication by the EAT of preference for the Employment Tribunal. I accept Mr Duggan’s submission that this is an old case and is unlikely to be decided today in the light of the ensuing authorities and the CPR. Apart from Automatic , the proposition I set out in Mindimaxnox remains. As to Automatic , I prefer not to follow it. The finding by the EAT in that case was that there was no ground for intervention in the Employment Judge’s thinking, but in my respectful view, Automatic Switching is out of step with the strain of authorities that occurred before and after it. It was decided solely on the basis that there were no sufficient grounds to interfere with the exercise of discretion. That was a matter for the EAT, but I prefer to apply the other authorities.[39]The approach of counsel to the matter addressed by the Judge in paragraphs 10-13 is as follows: Mr Duggan submits that there, the Judge is addressing the kind of factors under the embarrassment of the High Court Judge issue in Mindimaxnox . I am unclear what Ms Apps’ position is, but since she has specifically drawn my attention to it then I will take it that she does not accept that that is the Judge considering those matters. The problem for her in that submission is that, if it is not addressing the embarrassment of the High Court Judge issue, it is an error, because this is a requirement, and I prefer Mr Duggan’s submission. The discretion[40]Both counsel accepted at the outset that if there were an error I should decide it rather than remit to a, or the, Employment Judge. The discretion now is before me, having announced the result and after I have heard submissions from Ms Apps. They are in essence as they were throughout, that the Claimant will be stultified by this decision because he cannot pay to go to the High Court and he will effectively have no remedy. I do not accept that. Mr Halstead is today making £100,000 a year, his boats are not burned. The implication of my decision to order a stay is that this case will go on in the High Court, where all of the issues will be dealt with in the way that I described in Mindimaxnox in relation to what will pave the way, if anything, for ET proceedings. He will be able to try before the appropriate forum issues such as duress, debt, rescission and statutory interest.[41]So although I can understand the submission that the Claimant says he will not go to the High Court this now needs to be reconsidered by him. I do not regard it as a persuasive reason so I will order the stay.[42]Ms Apps contends that I should not make that order today. The sole reason she puts forward is that she may wish to go to the Court of Appeal. There is no application before me for permission. As Mr Duggan rightly pointed out when he addressed me on this matter, if this does go to the Court of Appeal the Employment Tribunal case cannot be heard anyway, so the practical effect will be that there is a stay. If there is an application for permission and if it is granted and if my Judgment is overturned then the case will be back in the Employment Tribunal a few months later and the work that has gone on so far will not be in vain.[43]The appeal is allowed. Permission to appeal refused [for reasons not transcribed].