PERSONAL INJURY ACTION BROUGHT AFTER EMPLOYMENT TRIBUNAL SETTLEMENT NOT AN ABUSE OF PROCESS: THE DEFENDANT HAS GOT WHAT IT SIGNED UP TO…

In Farnham-Oliver v RM Educational Resources Ltd [2021] EWHC 2418 (QB) Master Dagnall rejected an argument that personal injury proceedings, brought after employment proceedings had been settled, were an abuse of process. The settlement agreement had specifically stated that it it did not prevent the claimant bringing personal injury proceedings.  The defendant was estopped from putting forward such an argument.  Further the personal injury was not an abuse of process in any event.

I also again do not see why this should be such an abuse to deprive the claimant of his Article 6 right to have his substantive claim determined substantively. I repeat that all that has happened is that one claim was initiated, dealt with by non-dispositive compromise and withdrawal, and the specifically excepted claim is then brought in another jurisdiction. I cannot see any misuse or abuse of either jurisdiction or any inappropriate invasion or misuse of either private or public interests.

THE CASE

The claimant brought proceedings in the employment tribunal relating to the defendant’s treatment of him. Those proceedings were settled by agreement. The claimant then brought personal injury proceedings for work related stress arising out his employment with the defendant.  The defendant applied to strike these proceedings out as an abuse of process.

THE SETTLEMENT

The settlement in the tribunal proceedings had referred expressly to a proposed personal injury action and made it clear that settlement did not prevent the claimant bringing such an action.

    1. On 26 February 2015 a settlement was reached encapsulated in a written ACA COT3 Form (signed by DAS for the claimant on 26 February 2015 and by solicitors for the defendant on 6 March 2015). This (“the Tribunal Settlement Agreement”) provided amongst other things for:
i) The claimant’s employment to cease on 26 February 2015 (clause 2)
ii) It being a condition that the Tribunal proceedings would be withdrawn with an email to such effect being sent to the Tribunal by DAS within 2 days (clause 3)
iii) A payment being made of £12,000 by the defendant to the claimant (clause 4)
iv) By clause 6 “Subject to the exclusion at clause 7 below…” a full and final settlement of all claims the claimant had or might have against the defendant arising from the employment
v) By clause 7: “The Claimant is not prevented from pursuing his potential claim for damages arising from a personal injury allegedly suffered as a result of work related stress which is currently being handed handled by Norrie Waite and Slater Solicitors on behalf of the Claimant which was raised with the Respondent [the defendant] by way of solicitors’ letter dated 28 January 2015 (“the PI claim”).”
vi) By clause 9 that the claimant would keep the Agreement and the history confidential
vii) By clause 11 that the claimant would not disparage the defendant but that “For the avoidance of doubt the claimant is not precluded from disclosing such information as outlined in clause 9 for the purpose of the PI claim and the same will not be construed as a breach of this Agreement.”

 

THE PERSONAL INJURY ACTION AND THE DEFENDANT’S APPLICATION TO STRIKE OUT

The Master set out the nature of the claim and the defendant’s application.

    1. The (Civil Claim) Claim Form was issued in this court on 3 July 2020. It and its Particulars of Claim seek damages under sections 1 and 3 of the Protection from Harassment Act 1977 (“the 1977 Act”) on the basis that V had unlawfully harassed the claimant within the workplace and that the defendant is vicariously liable for V’s conduct. It is alleged that the claimant suffered psychiatric injury as a result of V’s conduct. I have not been asked to and do not decide in any way whether these claims do or not have substance although no suggestion has been made to me that either they or a substantive defence to them are not reasonably arguable, and it seems to me that I should proceed on that basis.
  1. The Application Notice was issued on 11 February 2021 and seeks to strike-out “on the basis that the Claim is duplicative litigation and an abuse of process.” There is no attempt to strike-out on the basis that the (or any part of the) Claim does not fall within the terms of the clause 7 exception to the full settlement provided for by clause 6 of the Tribunal Settlement Agreement. No submissions have been made to me to such effect and therefore I proceed on the basis that this civil High Court claim does fall within the clause 7 exception’s wording. That may not necessarily prevent the defendant from contending in the future that some or all of this Civil Claim is outwith the clause 7 exception but I do not have to and do not decide that point.

THE MASTER’S DECISION

The Master held that the defendant’s conduct  meant that it was barred by estoppel by convention from bringing or succeeding on the application.  It has signed the settlement agreement.

ABUSE OF PROCESS AND RES JUDICATA

The Master also went on to consider whether the claim was an abuse of process.  He held that it was not.

    1. I therefore turn to “abuse of process” considering it in terms of where I assume in turn each of my decision on the interpretation of the Tribunal Settlement Agreement and assessment of its surrounding negotiations being correct and incorrect.
    1. As stated above, this involves a “broad merits-based approach”; taking into account of the public and private interests involved and all the facts of the case; and 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 (see Akay above) but also asking whether not the Civil Claim amounts to “undue harassment” of the defendant (Johnson v Gore Wood).
    1. The parties in submissions sought to rely on various potentially relevant matters, and which I have taken all into account, and the more important matters being as follows:
(1) the claimant knew throughout of the (alleged) facts underlying the Civil Claim and there is no suggestion that the claimant could not, as a matter of law (as confirmed by both Sheriff (decided many years before the Tribunal Claim was commenced) and Akay; and I note also that the Tribunal is a fit place for the assessment of tort (and thus personal injury) damages as is confirmed by its specific statutory jurisdiction to do so in discrimination claims – see section 119 of the 2010 Act), have advanced the personal injury claim in the Tribunal Claim. It would thus also have been open to the claimant not only to have done that but to have resolved all other issues in the Tribunal Claim by a compromise whilst leaving the personal injury claim to be pursued in the Tribunal. Thus, there could have been just one set of proceedings and I can see (especially in the light of the matters which I go through below) any special reason why the personal injury claim was not or could not have been included in the Tribunal Claim
(2) the factual basis of the Tribunal Claim had little overlap with the factual basis of the Civil Claim; while both related to the employment and to how the defendant had not adjusted matters to protect the claimant from adverse consequences regarding his condition, the only specific matter of complaint which appeared in both proceedings was with regard to the comparative siting of the claimant’s chair and a drinks machine, and the vast majority of the complaints which are said in the Civil Claim to amount to wrongful and actionable harassment of the claimant by V did not appear in the Tribunal Particulars of Claim. That is correct, but it is also clear that the personal injury claim matters both arose from the employment and could have been raised in the Tribunal Claim. The Henderson principle itself in its original form (i.e. where the first set of proceedings have been resolved substantively rather than dealt with by way of compromise and stay/withdrawal) applies to claims which could have been but were not raised in the first set of proceedings and the various abuse of process cases all use that language when describing the extent of the abuse jurisdiction and which reflects the Latin maxims which I have set out above. Thus, while this could be said to be a point in the claimant’s favour, it is of little weight and I disregard it as such (although it flows into the some of the following points)
(3) the compromise and resolution of the Tribunal Claim took place at a very early stage within it and before any substantial judicial (or, it would seem likely, party) expense of time or cost upon it had occurred. That goes (at least) some way towards balancing against the previous point as the fact that the Tribunal Claim was brought and then compromised seems (especially in the circumstances of the Tribunal Settlement Agreement and its clause 7) to have made very little difference to the practical process of pursuing the personal injury claim and there is no suggestion that any particular waste or prejudice has been caused to either the defendant or the tribunal/court system as a result
(4) the 2010 Act claim, being one for discrimination in employment, could only have been brought in the Tribunal and not in the court. This is common-ground, and flows from the provisions of section 117 and 120 of the 2010 Act. Thus, if the defendant is correct (i.e. it is an abuse to bring cases in both the Tribunal and the Court), the claimant could only go to court in relation to the personal injury claim if the claimant was prepared to abandon the 2010 Act claim. At first sight, this seems contrary to Article 6, and especially where claims in the Tribunal are subject to various provisions (in particular in relation to limits on recovery of legal costs) which could be highly prejudicial (although also some perhaps beneficial) to a claimant. On the other hand, an argument to the effect that this would justify bringing proceedings in both jurisdictions was rejected expressly in Sheriff (see paragraph 27 of that judgment) and that is binding upon me and so it seems to me that I should not regard this as being a matter in any way in the claimant’s favour
(5) the claimant’s evidence is that DAS would only deal with the employment (including discrimination) claims and not the personal injury claim which had to be dealt with by separate solicitors and where NWS (at least) would not deal with the employment aspect (at least in a way desired by the claimant, and although I suspect, in view of the involvement of DAS, that there was some insurance point I have no evidence as to this and cannot proceed on that basis). While I accept that evidence, which is not controverted, it seems to me that (a) this is no concern of and should not prejudice the defendant and (b) is in any event something which the reasoning in paragraphs 26 and 27 of the Sheriff judgment again requires me to disregard.
(6) there had been no strike-out or contumelious (or, indeed, any) non-compliance in the Tribunal Claim and, in particular, none regarding the personal injury claim or any related issue. This is not a situation where what had happened in the Tribunal Claim had given rise to any procedural (or substantive) bar to the bringing or the pursuit of the personal injury claim. thus nothing to prevent the personal injury claim being advanced. That not only is a major point of distinction between this case and Akay but also raises the question as to why a discontinuance and withdrawal of other claims should result in a bar against proceeding with the personal injury claim (although I do also bear in mind that the effect of Rule 52 is that the withdrawal does expressly bar (absent an exceptive order being made) the further pursuit of the withdrawn claims which is a different, and more dispositive, effect than that provided for by CPR38.7 in relation to Civil Claims withdrawn prior to service of a defence (but where the law of abuse of process remains in point – see White Book notes 38.7.1 and cases there cited)
(7) the Tribunal Settlement Agreement by clause 7 expressly provided that the claimant was not prevented from pursuing the personal injury claim (and which must be taken, in the light of the withdrawal of the Tribunal Claim, to be by way of Civil Claim). On the basis of my previous conclusions as to the construction of that clause 7 and the surrounding negotiations, the situation was one where the parties were agreeing that the Civil Claim would be able to proceed to a substantive resolution, and where the agreement was very different from that in Akay. However, I also should consider the position which would ensue if those previous conclusions were wrong and all the parties were agreeing was (as in Akay) that the mere fact of the compromise would not bar the personal injury claim but that all other possible procedural arguments, including in particular abuse of process, would remain live and in issue. Nevertheless, even on that basis the existence of the clause 7, and the surrounding circumstances including the preceding letter, made clear both that the defendant knew about the intended personal injury claim (i.e. that claim which was not being compromised) and was not intending to compromise it (or being misled as to what were the claimant’s intentions to pursue it), and where the defendant could have chosen to insist that the personal injury claim formed part of the compromise
(8) there could be some form of overlap of damages between the compromised claims and the personal injury claims. This, if anything, is a factor pointing to abuse but in my judgment is negated by the existence of clause 7 of the Tribunal Settlement Agreement which must (by excluding the personal injury claim from the compromise) contemplate the court having to grapple with the possibility of overlap and as occurs in many situations where one claim is compromised on the basis that the compromise is only partial and others may proceed.
    1. With regard to the various cases relied upon by counsel:
(1) I agree with HHJ Hand in Manda that each case fell to be decided on its own facts and that the case-law is relevant with regard to setting out matters of principle rather than for what happened in any individual case (and which is only persuasive at most in any event)
(2) The fact that the Court of Appeal did not suggest any “abuse of process” in Sviratsa, even on somewhat analogous facts, is of little weight in view of the fact that the point did not seem to be argued and there were apparently jurisdictional issues in bringing that personal injury claim in the Tribunal
(3) The conclusion in Dattani that it was not an abuse to compromise only the claim which had been brought in the Tribunal and then to bring a different claim by way of Civil Claim seems inconsistent with what seems to be the contrary conclusion in Sheriff. However, both cases pre-date Johnson v Gore Wood and Virgin Atlantic and, in all these circumstances, I do not think that either amounts to binding authority either way on that general point but rather the “broad merits based judgment” approach is now to be applied without such restriction
(4) Akay:
(A) is distinguishable and should be distinguished from this case on two separate (but also cumulative) bases, being:
(i) it is a case where there was already a free-standing procedural defence (or rather right of response) to the relevant personal injury claim being that the relevant claimant has been barred by reason of a contumelious disregard of a judicial (there Tribunal) order from bringing the personal injury claim.. In those circumstances, the primary relevant abuse of process was that developed in the Securum Finance line of authorities, being that absent special circumstances the personal injury claim could no longer be advanced in any jurisdiction. In my judgment, HHJ Gargan decided Akay at first instance on that basis and Lavender J decided that HHJ Gargan was correct and justified in doing so, and neither judge proceeded on any other basis. Since the Civil Claim in that case was brought in a different jurisdiction from the strike-out order, the Henderson principle had to be invoked but what rendered that Civil Claim an abuse was the fact of the previous strike-out arising from a contumelious non-compliance with an order. It is, in fact, difficult to see how the result could have been otherwise as such would have involved an way round the consequence of such a strike-out (i.e. unless a relief from sanction is granted then the sanction i.e. the inability to raise and pursue the claim, should continue to apply), and, further
(ii) the fact that the provisions of that compromise agreement (a) only applied to ensure that the compromise agreement “itself” did not bar the personal injury claim while all other existing bars would continue to exist and could be relied upon and (b) this was due to such a “bar” already existing (i.e. apart from and before the entry into the compromise agreement) due to the strike-out (and which “bar” it was held that the defendant would have not been likely to have wished to give up and which thus supported the conclusion that the wording and effect of the compromise agreement and its exception were so limited)
(B) in relation to this case: the situation in point (A)(i) simply does not apply here, there was no strike-out or similar, but it was crucial to the decisions in Akay; the situation in point (A)(ii) does not apply if my previous conclusions are right as the clause 7 of the Tribunal Settlement Agreement was different from the provision in Akay, but, if they are wrong, then in the absence of the strike-out the reasoning regarding the compromise in Akay is, at best, neutral with regard to this case
(C) I do not, in the light of the reasoning in Akay, see it as being any authority for a general proposition that bringing and then compromising, with a withdrawal of, a Tribunal Claim but with an exception for a particular claim, is an abuse of process. Akay very much depends on the existence of the particular strike-out in that case
(5) Manda is at most persuasive but, like Akay, has the feature of a preceding strike-out (at least in part) of a relevant claim, and also has the feature of the subsequent unilateral (i.e. not in the context of a compromise and in particular not a compromise with an exception) withdrawal. The decision in Manda is also “tainted” (in terms of its persuasiveness) by its application of Rule 52 as giving rise to a dismissal which should be treated as being dispositive in law (and which conclusion was practically overruled in Sviratsa).
    1. Looking at matters in the round, and applying the “broad merits based judgment” approach I do not see this Civil Claim (on the assumption, which I have to make, that it is within the clause 7 of the Tribunal Settlement Agreement exception) as amounting to an abuse of process on any basis. I have considered all the material and in particular the above specific matters and what follows is a summary of my main reasons.
    1. On the assumption that my conclusions above as to the interpretation of the Tribunal Settlement Agreement and/or the surrounding negotiations are correct i.e. that it was intended that what had happened already would not bar the personal injury claim, it seems to me that their cannot be an abuse. There is no “undue harassment” of a party (the defendant) which has agreed that a claim against it can continue. There has been no contravention of or inconsistency with any judicial order. There has been no serious waste of time or expense. All that has happened is that one claim was initiated, dealt with by non-dispositive compromise and withdrawal, and the specifically excepted claim is then brought in another jurisdiction. I cannot see any misuse or abuse of either jurisdiction or any inappropriate invasion or misuse of either private or public interests.
    1. On the contrary assumption that my conclusions above as to the interpretation of the Tribunal Settlement Agreement and/or the surrounding negotiations are incorrect i.e. that it was only intended (as a matter of common objectively assessed intention) that the defendant would only not be able to argue that the compromise agreement barred the personal injury claim whilst being able to argue that what had previously and was to happen in relation to the Tribunal Claim could be and was an abuse, it seems to me that the matter is more complex.
    1. Nevertheless, I still consider that the bringing of and proceeding with the Civil Claim is not an “undue harassment” of the defendant. The Tribunal Claim had only progressed to a very early stage without involving any great expenditure of time or cost. The defendant had not required the personal injury claim to be included in the compromise but had allowed it to be specifically excepted, and thus accepted that it was not part of the Tribunal Claim, and, at first sight, was prepared to take the risk that the Civil Claim would be brought. I note that there was no attempt (agreed or otherwise) by the defendant in or at the time of the Tribunal Settlement Agreement to include or intimate any provision or assertion that to bring the Civil Claim would be an abuse. I therefore do not see this as “harassment” or, even if it is, as being “undue”.
    1. I also again do not see why this should be such an abuse to deprive the claimant of his Article 6 right to have his substantive claim determined substantively. I repeat that all that has happened is that one claim was initiated, dealt with by non-dispositive compromise and withdrawal, and the specifically excepted claim is then brought in another jurisdiction. I cannot see any misuse or abuse of either jurisdiction or any inappropriate invasion or misuse of either private or public interests.
    1. I have been tempted to consider whether I should be determining the question of whether it is now an abuse of process to do what was done in Dattani and Sheriff (compromise one matter related to the employment brought in the Tribunal and then litigate another matter related to the employment, and which could have been litigated in the Tribunal Claim, in the Court). However, I do not think that I should accede to the temptation as (1) all cases depend on their own facts and that is not the situation before me where there was a specific exception from the compromise of the personal injury claim and (2) the question is one of some general importance and I do not feel, as a Master, that I should be venturing beyond the bounds of the factual scenario before me.
  1. For the reasons given above I will dismiss the Application.