Denteh & Ors v South London And Maudsley NHS Foundation Trust (Practice and Procedure : Striking-out/dismissal) [2014] UKEAT 0365_13_0402
EAT
Denteh & Ors v South London And Maudsley NHS Foundation Trust (Practice and Procedure : Striking-out/dismissal)
[2014] UKEAT 0365_13_0402 · 2014-02-04
[70]“ In the first place, in my judgment, the ET is a creature of Statute and its procedure is specifically governed by the 2004 Regulations. It is much used by litigants in person. Its procedures are governed by what is meant to be an informal, but clearly understood code. Thus, whilst at first blush, and particularly given the tight time-limits for instituting proceedings, it might seem sensible to have a procedure by means of which a litigant who had mistakenly withdrawn a claim should be allowed to revive it, I am satisfied that, for such a procedure to exist, it would need to be set out expressly in the rules. I therefore regard the absence of any such express provision in the rules as important. ” 15. Mr Ogilvy submits that the Tribunal is not permitted to depart from the terms of rule 25(4), which require the application for dismissal to be made in writing. 16. The starting point for Mr Kempster is the difference between rule 25(3) and 25(4). At paragraph 73 of his Judgment in Khan , Wall LJ said:[73]“ ...it seems to me that the construction of the rule favoured by the ET Chairman and the judge is consistent with the CPR, and maintains the well-established distinction between a claim which has been withdrawn, but on which there is no judicial determination, and a claim which has been dismissed by means of a judicial act. The first does not, of itself, create either issue or cause of action estoppel: the latter does. Thus, if respondents to a claim in the ET wish to secure their position, they must apply to the ET for the claims against them to be dismissed. If they do not, they have the possibility that the claimant may bring a second claim on the same facts. ” 17. In Verdin v Harrods Ltd [2006] ICR 396 , a decision of this Tribunal, approved by the Court of Appeal in Khan [2007] ICR 24 , HHJ David Richardson stated at paragraphs 39 and 40:[39]“ 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 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 .” The observations of Judge Richardson in Verdin encapsulate the purpose of section 25(4).18. Judge Wallis went through the same process with the parties in the present case before acceding to the application to dismiss the claims. This is plain, in my view, from those parts of the review decision to which I have referred.19. In Drysdale v Department of Transport (The Maritime & Coastguard Agency) (UKEAT /0171/12, 13 February 2013) this Tribunal specifically addressed the issue of whether, for the purposes of rule 25(4), it was necessary for the Respondent to make a written application to the Employment Tribunal within 28 days of the notice of withdrawal to the Respondent. HHJ Richardson stated at paragraphs 81 to 83:[81]“ 81. The purpose of dismissal under rule 25 was explained by the Appeal Tribunal in a passage in Verdin v Harrods Limited … [see full quote at para 17 above][82]Once granted, as we have held, that the withdrawal of the claim by the Claimant’s chosen representative was not vitiated by any unfairness or error of law on the part of the ET, it inevitably follows that the Respondent was entitled to an order dismissing the claim. The Claimant’s representative indeed intended when withdrawing the claim to abandon it: this was not a case where she withdrew the claim in order to advance it in other proceedings, and it would have been an abuse of the process for the Claimant to do so. It is true that dismissal of the proceedings in this case followed hard upon the confirmation by the Claimant’s representative that she did indeed withdraw them. In this case, however, dismissal was inevitable and it was no injustice to the Claimant or his representative to deal with the matter there and then.[83]This leaves the submission of Mrs Drysdale that the ET should not have entertained the application to dismiss because it was not made in writing to the ET office within 28 days. The drafting of rule 25 is – as we have already observed – problematic in places. But we think it is plain that the second sentence of rule 25(4) is intended to impose a time limit on an application to dismiss, not to prevent an application to dismiss being made orally at the hearing where the claim has been withdrawn. We can discern no valid purpose in requiring a written application to the ET office when the parties are present at a hearing and the matter can be addressed there and then. To require a written application, with the possibility that a further hearing may then be necessary, would be inimical to the overriding objective, which includes dealing with cases expeditiously and saving expense. Construing rule 25 in accordance with the overriding objective (see reg. 3(3)(b) of the 2004 Regulations) we consider that it does not preclude the ET from dealing with the question of dismissal on an oral application made at a hearing when a claim has been withdrawn. If we had thought there was any substance in Mrs Drysdale’s submission we would at least have entertained an application to amend the grounds of appeal: but we consider that it has no force.”20. There was no suggestion that Mr Ogilvy was preserving the position of the Appellants. In the present case the Appellants were represented by solicitors or employment consultants. In her review decision Judge Wallis stated that, before dismissing the race discrimination claims on 19 December 2011, she first enquired from the Appellant’s representatives whether they had any objection to the application to dismiss. No objection was raised save for the Appellants, or some of them, through their representatives indicating, as I have said, that the withdrawal was not a reflection of or based upon the merits of the race discrimination claims.21. There was no indication by the Appellants, either on 19 December 2011 or within the period relevant to review or appeal, that the purpose of withdrawal was for a reason that required the cause of action to be kept alive and that therefore the claims should not be dismissed. That being so, there was in my view nothing to be gained by, for example, adjourning the hearing on 19 December to allow for a written application to dismiss. To require a written application in such circumstances would, in my view, be inimical to the overriding objective, which includes dealing with cases expeditiously and saving expense.22. Mr Ogilvy referred to rule 11 of the 2004 Rules in support of his submission that applications made to Tribunals have to be in writing and made within certain time limits, albeit those time limits can, he said, be waived by consent. However, Mr Kempster prays in aid that part of the Rule which gives the Judge a discretion to waive the requirement that the application must be in writing. That too, he submits, supports his general submission. Mr Ogilvy submits that Drysdale was wrongly decided. Mr Kempster informs me that the Claimant is pursuing an appeal in that case but not on the issue with which we are concerned. Conclusion23. In my judgment, the decision in Drysdale was correct. I follow it, for the reasons given by Judge Richardson, and I accept the submission of Mr Kempster in this regard.24. One final point – Mr Ogilvy submitted that there was no Judgment or order made by Judge Wallis. Section 25(4) does not require there to be a Judgment. There has to be a judicial act; there plainly was. Judge Wallis had a discretion whether to dismiss the proceedings. She decided, having considered the matter and heard from the Appellant’s representative, to do so, and she made an order to that effect.25. It follows that, in my judgment, Judge Kurrein correctly concluded that there was no jurisdiction for the Tribunal to hear the complaints of race discrimination as contained in the second set of ET1s. Accordingly this appeal fails.