Kerry Underwood

PERSONAL INJURY, EMPLOYMENT TRIBUNALS, QOCS AND ABUSE OF PROCESS

with 4 comments


The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Akay v Newcastle University [2020] EWHC 1669 (QB)

the Queen’s Bench Division of the High Court, on appeal, upheld the decision of Newcastle County Court to strike out as an abuse of process a personal injury claim, and to order the claimant to pay costs.

 

Abuse of Process

Originally the claimant brought an Employment Tribunal claim for unfair dismissal, harassment, victimization and discrimination on the grounds of age, race and religion.

Although the Employment Tribunal has jurisdiction to determine a claim for damages for personal injury, the claimant did not claim personal injury damages in the Employment Tribunal claim, but the present claim relied on the same underlying facts as those in the Employment Tribunal proceedings.

The Employment Tribunal claim was struck out due the claimant’s failure to comply with the orders requiring provision of particulars, and because the claimant had no reasonable prospect of success.

As the court here said, this case had similarities to the case of

Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] EWCA Civ 1663  .

There Mr Sheriff brought a personal injury claim against his employer in the County Court after he had brought and settled an Employment Tribunal claim arising out of the same fact.

The Court of Appeal held that the personal injury claim was an abuse of process both because it was settled by the Settlement Agreement, and because the case fell within the principles set out in

Henderson v Henderson (1843) 3 Hare 100.

So far, so clear.

However, not all of the Employment Tribunal claims had been struck out and the parties entered into a Settlement Agreement, which, as usual, compromised all claims, but the wording in relation to personal injury claims was different from the usual one.

The usual term in a Settlement Agreement compromises all personal injury claims of which the claimant is aware, or ought to have been aware, at the time of the Settlement Agreement.

Thus, it leaves open the possibility of the claimant suing for a latent injury such as asbestosis, which the claimant develops later, and was unaware of at the time of the Settlement Agreement.

Here the Settlement Agreement read:

“The Claimant confirms that he is aware of no other cause of action which he has made against the Respondent (save for the personal injury claim referred to in clause 7) …

The Claimant is not precluded by this agreement from bringing any personal injury claim against the Respondent where he is not and could not reasonably have been, aware of any such claim at the date of this Agreement. For the avoidance of doubt nothing in this Agreement prevents the Claimant from pursuing the personal injury claim that he has already made. The making and pursuing of this claim is not a breach of this agreement.”

Thus it was clear that the claimant had not, in the Settlement Agreement, compromised this personal injury claim.

The judge at first instance rejected the claimant’s contention that the terms of the Settlement Agreement precluded the defendant from seeking to strike out the claim as an abuse of process, and held that it was appropriate to strike out the claim as an abuse of process, but that the claim was not res judicata.

Here, the High Court upheld that decision.

The judge at first instance quoted from

 Johnson v Gore-Wood & Co (No 1) [2002] 2 AC 1

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

As to the Settlement Agreement the original judge said:

“As set out above, I do not consider that there is anything in the terms of the Compromise Agreement to suggest that it extended beyond compromising the ET claim, leaving the issues in the personal injury action at large. Therefore, I consider that the defendant is entitled to argue res judicata and/or abuse of process as part of its defence to the personal injury claim.”

The trial judge also held that there was no special reason why the ordinary rule, as set out in

Davies v Carillion Energy Services Ltd [2018] 1 WLR 1734

that where a first action has been struck out as itself being an abuse of process, a second action covering the same subject matter will be struck out as an abuse of process unless there is a special reason.

Making a deliberate decision not to advance a personal claim in Employment Tribunal proceedings cannot amount to a special reason, and neither can ignorance of the fact that it was possible to bring personal injury claims in Employment Tribunal.

A party must bring forward any claim for personal injuries in the Employment Tribunal if the injuries were caused by the conduct which gives rise to the discrimination claim.

Elevating the claimant’s deliberate decision to refrain from pursuing his personal injury claim to a special reason would be to encourage duplicative litigation.

 

Comment

Over specialization is a disaster.

Most of my case load for other solicitors stems from personal injury firms, or individuals within them, not having a basic understanding of the law of contract, or probate law, or the fact that Employment Tribunals have extensive personal injury jurisdictions.

Written by kerryunderwood

July 30, 2020 at 7:49 am

Posted in Uncategorized

4 Responses

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  1. This is an appalling decision, and one which highlights the UK courts’ poor approach to mental health.

    The settlement agreement clearly states that the Claimant is free to pursue the personal injury claim, and any suggestion that it would be an abuse of process to do so should have been raised at the time.

    I think the decision in Sheriff is wrong in saying that personal injury claims should be raised at the employment tribunal rather than the CC – the three month time limit is insufficient in most cases as these injuries can take years to develop (in the case here the Claimant wasn’t even diagnosed until years later). In my view, the decision that the original strike out was due to abuse of process was also wrong, but in any case the original claim was for a different head of damages. It must be up to the Claimant to decide whether to pursue a personal injury claim through the ET or CC. That is not to say they should have two attempts at the same claim, but if they feel the ET is unsuitable for their claim then they must have the right to bring a personal injury action in the CC.

    I hope that this decision is appealed.

    Anonymous

    July 30, 2020 at 12:36 pm

    • I largely agree with you, although I think that the decision is probably technically correct, but nevertheless unjust.

      A number of points arise.

      Firstly, it is absolutely standard for a Settlement Agreement to exclude any personal injury claim, unless at the time of the settlement the employee did not know, and could not reasonably have known, of the injury. Thus, the fact that here the Settlement Agreement did indeed allow the claimant to pursue the personal injury claim is, of itself, unusual and means that the parties regarded this as an unusual situation.

      In my view, there is an argument that the employer was estopped from raising an abuse of process defence, where they had agreed that the claim could go ahead. It is worth noting that this was not just a theoretical claim, details of which the employer may not have had; the proceedings had already been issued.

      The other side of that coin is that abuse of process is a defence, like any other, and clearly by agreeing that the claim could go ahead, the employer was not waiving his right to defend that claim.

      The other issue which you mention concerns the personal injury jurisdiction of the employment tribunal. I pointed out that many lawyers are unaware of this jurisdiction, which is true. That raises the issue of how on earth a lay person representing themselves in an employment tribunal, and employment tribunals were designed for people to represent themselves, would be aware of its personal injury jurisdiction and the draconian consequences of failing to bring any personal injury claim with the employment claim in that tribunal.

      You make a good point about the fact that the time limit in employment tribunals is three months less a day, compared with three years in the High Court or Country Court for a personal injury claim.

      Maybe it should be the other way around; that is where an employee brings a claim in an employment tribunal, they are still free to bring a personal injury claim elsewhere, but the employment tribunal would be free to direct, or have a telephone or Zoom Case Management Conference, as to whether the personal injury claim should be brought within the proceedings in the employment tribunal or not.

      That way the employee would be on notice and would not lose out by having failed to include the personal injury claim in the initial Form ET1 commencing employment tribunal proceedings.

      Kerry

      kerryunderwood

      July 31, 2020 at 9:27 am

      • I think the main problem with the decision is, as you touch on, that in this instance it was specifically agreed that the claim was to go ahead. Any mention of abuse of process should have been made at this stage and the fact that it wasn’t means the only reasonable interpretation must be that the Defendant didn’t believe there was an abuse of process, otherwise it would have been raised then. While the Defendant is still entitled to defend the claim, ‘abuse of process’ is not a defence, which is something that the original judge didn’t seem to understand. I think the intention of the original agreement can only have been that no abuse of process was alleged, and that the personal injury claim would be brought and potentially defended in the usual way.

        Completely agree with your points on time limits and jurisdiction, a very sensible and fair proposal.

        Anonymous

        August 10, 2020 at 8:44 am

      • I agree.

        I think there is an argument here that the defendant is estopped from raising abuse of process in relation actually to bringing the claim, as they had, for all intents and purposes, consented to that.

        Obviously, this would not prevent the defendant arguing a subsequent alleged abuse of process for something which actually took place during the proceedings, but it does seem wholly unfair that the actual bringing of proceedings should be regarded as an abuse.

        Kerry

        kerryunderwood

        August 11, 2020 at 10:51 am


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