“Issue estoppel” is the legal principle that, when applied, is intended to ensure finality and clear determination of issues in legal proceedings. It is defined as follows:

It applies where an issue in a cause of action was decided in a previous action. It must be a finding that is fundamental to the outcome of the decision, so fundamental that if a different conclusion had been reached on the issue, the outcome would have been different.

It is a form of res judicata. Although lawyers are encouraged to avoid the use of latin phrases there is no direct translation of res judicata. In essence this is the principle that a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties.

High_Commission_of_Brunei_in_LondonIn Nayif v High Commission of Brunei Darussalam the Court of Appeal was asked to consider whether a tribunal’s rejection of a race discrimination claim that was out of time prevented a negligence claim based on the same facts being brought in the High Court. Mr Nayif was employed as a chauffeur from 2003. He made a number of complaints that, during his employment from 2003 to 2010 he was treated unfairly and subjected to various acts of bullying, harassment and abuse. He claimed to have suffered psychiatric injury as a result.

On 26 October 2011 he commenced a race discrimination claim in the employment tribunal. All his claims were outside the standard three months time limit. It is possible for a tribunal to extend the time limit if it is thought just and equitable to do so. In Mr Nayif’s case the tribunal declined to exercise the discretion to extend the time limits. Mr Nayif applied for permission to appeal to the Employment Appeal Tribunal but his application was rejected.

One might reasonably have thought that, as a result, he was at the end of the judicial road in terms of pursuing claims resulting from his employment. However, on 20 December 2012 he commenced proceedings in the High Court alleging negligence and breach of contract in respect of the same alleged psychiatric injury. His complaints were effectively the same as those made in the employment tribunal proceedings. However, he did not allege race discrimination.

The Commission applied for the claim to be struck out on the basis of issue estoppel with reference to the earlier employment tribunal proceedings. At the hearing of the application Master Leslie “with considerable reluctance” agreed with the Commission. However he was concerned that Mr Nayif may have suffered a “grave injustice” as a result of him barring the claim and he therefore granted permission to appeal the decision. On appeal Mr Justice Bean also agreed with the Commission so the claim remained struck out.

Mr Nayif appealed to the Court of Appeal. The appeal was heard by Sir Brian Leveson (he of the now largely forgotten Leveson Inquiry), Lady Justice Rafferty and Lord Justice Elias. Judgment was given by Lord Justice Elias. he noted that the policy lying behind the principles of res judicata is the interest of finality in litigation. the equivalent private interest is that “it is unjust for a man to be vexed twice with litigation on the same subject matter”.

This analysis presupposes that there will have been a formal adjudication by a court. However, in this case (as in other similar cases) the employment claim failed because Mr Nayif had failed to successful negotiate a technical hurdle – the three months time limit. Mr Justice Elias said that he saw “no justification for the principle applying in circumstances where there has been no actual adjudication of any issue and no action by a party which would justify treating him as having consented, either expressly or by implication, to having conceded the issue by choosing not to have the matter formally determined”.

Does this mean that employers can expect a rash of what would otherwise be out of time discrimination claims. It has for some time been the case that if a claimant discontinues a tribunal claim before a hearing that does not prevent a subsequent claim in the High Court. The rationale for this is that there is a distinction between discontinuance and dismissal of a claim: the latter is final whereas the former is not. That has not led to masses of claims and in the same way it is unlikely that the judgment in Nayif will materially alter the number and distribution of such claims. It does however provide a handy safety net for ostensibly out of time discrimination claimants and their legal representatives.