High Court develops the law on res judicata

In Srivatsa v Secretary of State for Health the High Court considered whether res judicata applied in circumstances where the Claimant issued his second claim before his first claim had been dismissed.

Thomas Cordrey, appearing for the Secretary of State for Health, submitted that the Claimant, a General Practitioner, was estopped from pursuing a second claim in the High Court which concerned subject matter that had already been raised in a first claim in the Employment Tribunal (ET).

It was common ground between the parties that for res judicata to apply the ET claim not only had to have been withdrawn by the Claimant but also dismissed in a judgment by the ET. All previous res judicata cases relating to ET proceedings had involved ET claims which had been dismissed before the claimant attempted to re-litigate in another court. The High Court agreed that there was “no precedent” for Dr Srivatsa’s case in which the ET claim was dismissed 2 ½ years after the High Court claim had been started.

Nicol J held that res judicata operated to estop Dr Srivatsa’s second claim – what mattered was that 1) the Claimant had abandoned the ET claim by withdrawal before issuing in the High Court and 2) that by the time of the res judicata issue being considered, the ET claim had been dismissed. The necessary components for an estoppel were all present.

Thomas Cordrey was instructed by DAC Beachcroft LLP on behalf of the Secretary of State for Health.

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