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Abuse of process: Court holds that Employment Tribunal was capable of hearing injury claim

  • Legal Development 07 August 2020 07 August 2020

Akay v Newcastle University [2020] EWHC 1669 (QB)

Abuse of process: Court holds that Employment Tribunal was capable of hearing injury claim

The High Court recently held that a claimant should have brought a personal injury claim before an Employment Tribunal, when pursuing simultaneous claims for harassment and unfair dismissal.

Upholding the first instance decision, the High Court agreed that there was no special reason why the Claimant had not brought his personal injury claim before the Employment Tribunal, which had jurisdiction to hear it. This decision was reached with reference to the Henderson v Henderson and Johnson v Gore-Wood decisions.


The Claimant was employed by the Defendant between 1998 and 2013, and had brought a claim in the Employment Tribunal in December 2013 alleging unfair dismissal and harassment. The Tribunal had jurisdiction to determine a claim for personal injury damages arising out the same underlying facts but the Claimant elected not to bring a personal injury claim at this time.

Whilst the harassment claim was struck out, the unfair dismissal claim continued. At this stage, the Claimant instructed his solicitors to pursue a personal injury claim. The Claimant brought a claim against the Defendant for PTSD, caused by breach of contract, breach of duty and/or harassment.

Proceedings were issued on 25 August 2015, and two days after the parties attended mediation in relation to the dismissal claims. The Defendant agreed to pay the Claimant compensation for termination of employment and for injury to feelings. The compromise agreement made clear that this settlement did not preclude the Claimant from pursuing his personal injury claim.

However, the Defendant averred that the personal injury claim was an abuse of process and issued a strike out application.

At the hearing, and considering Henderson v Henderson (1843) and Johnson v Gore-Wood & Co [2002], HHJ Gargan held the Claimant's claim should be struck out as an abuse of process, and the Claimant pay the Defendant's costs of the whole action as well as the strike out application.


The Claimant appealed the decision of HHJ Gargan on the following grounds:

  • The Court misinterpreted the Employment Tribunal decision;
  • The Judge’s approach to question of whether there was a “special reason” not to strike out the Claimant’s claim; and
  • The application of the “broad, merits-based judgment” referred to by Lord Bingham in Johnson v Gore-Wood.

Interpretation of the decision of the Employment Tribunal

Mr Justice Lavender held that HHJ Gargan was right to find that harassment claims were struck out for abuse of process. One reason why the Employment Tribunal struck out the harassment claim was due to the Claimant's failure to comply with their orders.

“Special reason” not to strike out the claim

The Claimant alleged there was "special reason" not to strike out the personal injury claim. The case of Sheriff v Klyne Tugs [1999], confirmed an exception to the Henderson rule where there are special circumstances which must "afford an adequate explanation of why the claim now made was not made in earlier proceedings".

However, there was no suggestion the Claimant was unaware of his psychological problems when he launched his Employment Tribunal claim. In fact, despite submissions to the High Court to the contrary, the Claimant had previously indicated that had deliberately refrained from pursuing the claim as part of the Employment Tribunal claim.

Application of a ”broad merits-based” judgment

The Claimant argued HHJ Gargan "should have considered all the facts and applied the broad merits-based test in Johnson", and that he had erred by considering the overriding objective. Mr Justice Lavender described HHJ Gargan’s consideration of the overriding objective as "systematic and thorough" and saw no basis for criticising this approach.

Mr Justice Lavender also found that whilst the Compromise Agreement did not prevent the Claimant from pursuing a personal injury claim, there was no express or implied agreement that the claim was not an abuse of process.


Mr Justice Lavender found the Claimant did not succeed on any of the pleaded grounds and dismissed the appeal.

Further, the costs order made by HHJ Gargan was not outside the scope of his wide discretion.

What can we learn?

  • In similar cases where defendants wish to issue a strike out application for abuse of process it is important to consider whether a claimant could show special reason as to why a claim was not pursued. Assessing the likely success of any application will help reduce costs.
  • Defendants should always consider whether a claimant will likely raise arguments in a second set of proceedings that could have been raised in previous proceedings. Examples may include credit hire and RTA personal injury claims, claims for injuries following an accident at work and loss of earnings claims, vehicle damage claims and subsequent personal injury claims, compensation for housing disrepair claims and personal injury. If a claimant attempts to pursue a second claim, defendants need to be alive to a potential abuse of process.


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