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Tribunal procedure: abuse of process

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Was it an abuse of process for Claimants to re-introduce an issue already decided in group litigation?

Yes, held the Employment Appeal Tribunal in Pady and others (the FDA claimants) v HMRC

The Claimants (supported by the FDA union) sought to pursue claims of direct age discrimination in relation to the redundancy payment scheme under the Civil Service Compensation Scheme.  There were already similar claims on-going that were subject to a Presidential Case Management Order (PCMO). This extended to the FDA Claimants' claims. The FDA Claimants were told that a preliminary hearing on the issue of justification, to be determined in sample cases, had been listed for December 2021. The FDA Claimants didn’t make any applications at this hearing, although their legal observers attended. The Respondents' justification defence was upheld and the sample claims dismissed.  

The FDA Claimants, nevertheless, sought to continue their claims, relying on expert evidence which they said was material to the question of proportionality.  The tribunal struck-out the FDA Claimants’ claims, concluding that their continued pursuit would be an abuse of process such as to be scandalous, unreasonable, or vexatious. 

The FDA Claimants appealed. The EAT dismissed the appeal. Although there was no presumption that re-litigation in civil proceedings was an abuse, the tribunal was entitled to conclude that it was in the circumstances of this case. The FDA Claimants were parties to proceedings that had been case managed under a PCMO, under which it had been decided that the common issue of justification would be determined, using sample claims, at a preliminary hearing.  

Although the FDA Claimants had been entitled to sit on their hands at the preliminary hearing, to then seek to re-litigate the point that had been determined at the preliminary hearing would undermine the tribunal’s case management of the proceedings. It would put the Respondents at risk of repetitive litigation and bring the administration of justice into disrepute. No error of law had arisen from the striking out of the claims.