A litigant can sometimes find it difficult to elect the forum in which to issue proceedings. Sometimes it can simply be an issue of cost. Litigating in tribunal is less expensive and the findings of fact will bind a higher court. When deciding whether a stay of tribunal proceedings should be granted where claims are issued on similar facts in more than one court, it is necessary to consider the balance between duplication of court proceedings and the prejudice which might be caused by a stay. In Chorion plc and others v Lane the High Court held that tribunal proceedings should be stayed where there was a sufficient overlap between the tribunal and court proceedings. However, it should be remembered that there is no absolute rule that provides that tribunal proceedings should automatically be stayed.
The litigant, Mr Halstead, in Paymentshield Group Holdings Ltd v Halstead had first issued proceedings in an employment tribunal for unfair dismissal and breach of the Working Time Regulations 1998 in respect of holiday pay. Some two months prior to the hearing, Mr Halstead decided to send a letter before action with attached draft particulars of claim to Paymentshield. When Paymentshield sought a stay of the tribunal proceedings, Mr Halstead at first agreed but then changed his mind, intending to fund the more costly High Court proceedings with the compensation he expected to win from his tribunal claims. He applied for reinstatement of the tribunal proceedings and two employment judges at first instance agreed with him, agreeing to lift the stay because no High Court proceedings had been issued.
On appeal however, Mr Halstead was unfortunate enough to come before HHJ McMullen who, some nine months earlier, had held in Mindimaxnox LLP v Gover & Another that where proceedings are so similar a tribunal must try not to embarrass the High Court or "place it in a straightjacket" with factual findings. It is thought to be "preferable for the tribunal to have the High Court judgment than for the High Court to have the tribunal’s judgment". Where there is "considerable overlap" of factual matters, then "it seems to me that […] it is appropriate to cede to the High Court".
It is unsurprising then, given that HHJ McMullen had so recently pronounced on this matter, that he followed his own line of reasoning on appeal. Referring to his earlier decision, he noted that it was already established law that where tribunal proceedings overlapped with High Court proceedings, the tribunal proceedings should be stayed. It followed that where a claim had not been lodged in the High Court but a letter before action had been issued in accordance with a Civil Procedure Rules (CPR) Practice Direction, the principle should be extended to stay the tribunal proceedings. HHJ McMullen noted that this is regarded as an important part of the procedures and "an important and established part of the court’s practice". HHJ McMullen found that when balancing the issue of prejudice it was necessary to pay attention to the triangular interests, the effect of a decision by one court upon another. Any constraint on a High Court judge is a public issue. This must be correct. If findings of fact in a lower court bind a High Court judge he will inevitably be constrained in how he reaches his decision.
HHJ McMullen was very clear that a letter before action formed an important part of the CPR and was quite distinct from a scenario where there was just "a glint in the Claimant’s eye that he may seek in another forum from the Employment Tribunal to recover substantial amounts […]".
Litigants coming up before HHJ McMullen might also do well to note his irritation with the misuse of the term "draconian". So displeased was he that he took the opportunity to berate the judge at first instance for his misquote of the Athenian 7th century scholar and "law giver", Draco. For those unfamiliar with the scribe, his laws were notable for their severity in relation to the triviality of the offence.