Repeat Claimants – res judicata and issue estoppel

jonathan_holsgrove_pi By Jonathan Holsgrove

Srivatsa v Secretary of State for Health & Another [2016] EWHC 2916 (QB)

As we approach Christmas we get ready to enjoy the repeat runs of favourite TV specials from yesteryear. What isn’t so well received is a new claim from that claimant that you thought had already gone away.  The High Court has recently considered that very prospect.

The Claimant ‘S’ was a GP who, after his employment was terminated, issued an employment tribunal claim. The claim was for breach of contract and detriment for making protected disclosures.  Part way through the tribunal claim S’s solicitors wrote to the tribunal and the respondents withdrawing the claim.  The tribunal acknowledged the correspondence and closed the file.  When the respondents applied for a costs order S sought to ‘re-activate’ his claim.  S was informed by the tribunal that there was no jurisdiction and the withdrawal of the claim had been final.  His claim was dismissed.

S subsequently issued a claim in the High Court for damages for breach of contract and tortious conspiracy. The respondents, now defendants, defended the claim on the basis that S was estopped from pursuing the claim because of the tribunal claim.  In the interim S applied for and was granted revocation of the withdrawal by the tribunal.  The defendants appealed to the EAT who agreed that the withdrawal was unequivocal and not expressed in a way to reserve the right to bring further claims.  The tribunal claim remained dismissed.  The High Court considered as a preliminary issue if under res judicata and abuse of process S was estopped from bringing the present claim.

The Court (Nicol J) held that:

  1. S could not raise in the High Court the issue of whether or not he had withdrawn his tribunal claim. The court was bound by the decision of the EAT that S had unequivocally withdrawn his tribunal claim.
  2. Issue estoppel required the tribunal proceedings to have been disposed of either by judgment, order or withdrawal. However, this case was unusual as the tribunal proceedings had not been disposed of by the EAT at the time that the High Court proceedings were issued. S’s objectionable conduct had been his continued pursuit of the High Court claim after the EAT decision.The defendants could not have been criticised for failing to raise the estoppel argument in their first defence or their summary judgment application because they were both made before the EAT decision.
  3. Pursuant to the principles of res judicata and more specifically issue estoppel S was estopped from bringing this claim. Claim dismissed.

S withdrew his tribunal claim because of the costs. When he realised that he could not live with that decision he attempted to have a second bite of the cheery so to speak.  This case is a reminder of the importance of achieving finality in any orders negotiated to settle or bring to an end claims to protect your client from repeat claimants.

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