Parris v Ajayi & Ors

Reference: [2021] EWHC 285 (QB)

Court: Queen's Bench Division

Judge: Richard Spearman QC (Sitting as a Judge of the Queens Bench Division)

Date of judgment: 12 Feb 2021

Summary: Libel - Malicious Falsehood - Strike out - Amendments - Henderson v Henderson abuse of process - Consent to disciplinary procedure within employment context - Friend v Civil Aviation Authority- Claim for losses flowing from dismissal - Jurisdiction of Employment Tribunal - Johnson exclusion area - Johnson v Unisys Ltd - Jameel abuse of process - Failure to provide reference

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Appearances: Christina Michalos QC - Leading Counsel (Claimant)  Justin Rushbrooke QC - Leading Counsel (Defendant)  Richard Munden (Defendant) 

Instructing Solicitors: IRH Solicitors for the Claimant; Mills & Reeve LLP for the Defendants

Facts

C claimed in libel and malicious falsehood in respect of a statement published by her line manager, D1, to (at least) D2 and D3’s HR manager Mr Gayler. C’s pleading put in issue whether D1 had published the statement to anyone else in addition to Mr Gayler. C, D1 and Mr Gayler were all connected by their employment, although the precise relationship between them was not as clear as it might be. D2 and D3 were sued as being vicariously liable for the actions of D1.

Following a disciplinary process relating to the matters referred to in D1’s statement (relating to the discovery of a dictaphone at a meeting), C was dismissed. C claimed for unfair dismissal and wrongful dismissal in the Employment Tribunal and was awarded, inter alia, the maximum compensatory award available for unfair dismissal.

Following a change in legal representation, Ds applied to amend their Defence and strike out the claim or be granted summary judgment. Prior to the change in representation, the Ds had made an unsuccessful application to strike out the claim/for summary judgment.

 

Issue

(1) Whether, given that the Ds had previously attempted to strike out the claim, the application should be refused as an abuse of process in the Henderson v Henderson [1843] 3 Hare 100 sense;

(2) whether the application to amend was “very late” and if so whether the heavy burden on such applications was discharged.

(3) whether the application to amend to plead a defence of consent, applying Friend v Civil Aviation Authority [1998] IRLR 253, should be permitted, and if so whether the claim should be struck out on this basis.

(4) whether the application to amend to plead that the financial loss claimed fell within the Johnson exclusion area of matters that should be dealt with in the Employment Tribunal (Johnson v Unisys Ltd [2003] 1 AC 518) should be permitted, and if so whether the claim should be struck out on this basis.

(5) whether the claim for loss alleged to result from D2’s alleged refusal to provide a positive employment reference for C should be struck out as having no real prospect of success on the facts; and

(6) whether the claim should be struck out as disproportionate, pursuant to Jameel v Dow Jones [2005] QB 946.

Held

Allowing the amendments, and striking out the claim in respect of the damages flowing from dismissal but not otherwise:

(1) The principle in Henderson, that “a party should not be twice vexed in the same matter”, applied not only to raising the same issue a second time, but also to one that could and should have been raised previously. However, the Ds’ applications to amend required them to satisfy the Court that the balance of justice favoured allowing them to be pleaded; and the applications to strike out required them to demonstrate that the claim ought not to be tried. In the circumstances, it would be disproportionate and not in the public interest not to permit the application.

(2) The applications were not “very late” so as to require particularly close scrutiny, although the Ds had been guilty of unacceptable delay. The instruction of new counsel was not in itself a good explanation. These were factors that weighed against the Ds.

(3) Applying Friend, the defence of consent to publication as part of the disciplinary procedure had at the very least a real prospect of success, and the amendments would be allowed. However, C also had a real prospect of defeating it, so the claim would not be struck out. There were relevant factual issues which should be left to trial.

(4) The Johnson line of authority had the effect that any claim to recover loss which arises by reason of an employee’s dismissal falls to be dealt with by the Employment Tribunal. If reputational damage is inextricably linked to the fact of a claimant’s dismissal such that the cause of action in respect of that damage did not exist before the dismissal, such financial loss as the claimant may have suffered as a consequence is the result of the dismissal, and compensation for that damage can only be sought as part of an unfair dismissal claim. The parts of C’s claim relating to loss flowing from the dismissal, including her claim for past and future financial loss, fell within the Johnson exclusion area and were struck out.

(5) If the claim for loss alleged to flow from the refusal to provide a positive employment reference had not been within the Johnson exclusion area, it would not have been the subject of summary judgment. Although the publication made no difference to the terms of the reference D2 in fact provided for C, C could rely on the alleged failure to provide a clinical reference, and this was not an issue suitable for summary determination.

(6) It might transpire at trial that the publication to Mr Gayler had been published at a time and in circumstances independent of the dismissal and/or to other individuals, and as such the claim would not be struck out as a Jameel abuse.

Comment

This lengthy judgment provides valuable analysis of two principles that may be of significance to publication claims in an employment context: the Friend doctrine relating to consent to publication as part of a discipinary procedure, and the Johnson exclusion area in respect of losses following dismissal.

Both sides were critical of each other for attempting to have a ‘second bite of the cherry’ – the Claimant in respect of this being the Defendants’ second application for strike out/summary judgment, the Defendants in respect of the Claimant seeking to recover the same loss of earnings as in her unfair dismissal claim. As to the former, the judgment is a useful consideration of the Henderson v Henderson principle as it applies to interlocutory applications.