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Abuse of process – double jeopardy strikes again: Akay v University of Newcastle

Hannah Beddis, Principal Associate, takes a look at a recent case: Akay v University of Newcastle [2020] QBD, Lavender J, 25.06.20

Akay v University of Newcastle [2020] QBD, Lavender J, 25.06.20

Summary

The claimant’s personal injury claim in the county court was struck out as an abuse of process as the settlement of his Employment Tribunal (ET) had previously compromised all available remedies.

Facts

The claimant was previously employed by the defendant. His employment ended in 2013. He commenced proceedings against the defendant in the ET on the grounds of unfair dismissal, discrimination and harassment. The ET struck out the harassment claim because the claimant had shown a “contumelious disregard” for various Orders requiring better particulars and the claimant had no reasonable prospect of establishing that the claim had been brought in time.

The unfair dismissal and discrimination claims were subsequently resolved by way of a Compromise Agreement (‘the Agreement’) dated 3 September 2015. By this time, the claimant had issued county court proceedings in respect of a personal injury claim against the defendant. The Agreement confirmed, “nothing in this agreement prevents the claimant from pursuing the personal injury claim that had already made”.

On an application by the defendant in the injury claim, HHJ Gargan struck out the claim as an abuse of process, holding that there was nothing in the Agreement to prevent the claim being struck out on this basis. The claimant was also ordered to pay the defendant’s costs. The claimant appealed to the High Court.

Appeal

In a comprehensive judgment, Mr Justice Lavender dismissed appeal, holding:

  • The harassment claim in the ET had been struck out by the tribunal as an abuse of process in light of the claimant’s failure to comply with the orders of the tribunal.
  • It was accepted that the injury claim arose out of ”essentially the same underlying facts” as the harassment claim.
  • 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 special reason (per Aktas v Adepta [2011] QB 894 and Securum Finance Ltd v Ashton (No.1) [2011] CH 291.
  • There was no such special reason. In particular, on the claimant’s own case he was aware that he believed the defendant’s conduct had caused him psychiatric injury before he commenced his ET claim. The claimant’s “deliberate decision” not to pursue the injury claim was not a special reason.
  • The clause in the Agreement did not affect the parties’ rights to bring or defend the injury claim. There was no agreement that the injury claim was not an abuse of process. The clause therefore did not improve the claimant’s position in the injury claim, it merely preserved it.

Comment

This is another important judgment in the complex territory of injury claims being brought after concluded or compromised ET claims. If the claimant’s submissions had been accepted, ET harassment and discrimination claims involving injury that had been struck out or compromised may have been capable of being resurrected and pursued long after the event.

Weightmans LLP acted for the Defendant in this case. 

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