[Thanks to Jonathan Moffat of Outer Temple Chambers for preparing this case summary]
Can a claim be dismissed for abuse of process when it is brought on the same facts as an earlier claim that has been withdrawn but not dismissed?
Yes, according to the EAT in Mills v London Borough of Brent.
Miss Mills presented two claims of race discrimination against the school where she worked, which was maintained by Brent. She withdrew her claims on the third day of a four day trial but the claims were not dismissed.
Miss Mills brought a third claim based on the same facts against Brent. She also submitted a complaint of harassment and duress against the Employment Judge. The complaint was not upheld and the third claim was struck out as an abuse of process at a PHR.
On appeal, Miss Mills alleged bias and claimed that the Employment Judge had erred in striking out the third claim.
The EAT held that:
(1) it did not matter that there was a different respondent to the first two claims than there was to the third given the "privity of interest" between the respective parties;
(2) the Employment Judge had been entitled to take into account the fact that the claims had been withdrawn voluntarily on the third day of the trial; and,
(3) the principle in Henderson v Henderson had no application: the Employment Judge had been entitled to strike the claim out as an abuse of process under rule 18(7)(b).