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In the recent case of Cunningham v Intel Ireland [2013] IEHC 207, Mr Justice Hedigan was asked to consider the issue of duplication of proceedings. We have referred extensively to extracts from the judgement delivered on 15th May 2013 below.

Background

The plaintiff in this case was employed by the defendant as a senior manager and instituted a claim for discrimination against the defendant upon her return from maternity leave in 2008. The plaintiff claimed that she was discriminated against in relation to access to employment, promotion/regrading, conditions of employment and harassment. The plaintiff’s equality claim was heard in July and September 2011 but was rejected by the Equality Tribunal. The plaintiff appealed that decision to the Labour Court and at the time of the hearing, the appeal was ongoing.

The plaintiff had been absent from work on a combination of maternity leave and sick from 2007 to 2008. Her intial complaint on Form EE1 was that she was discriminated against on the grounds of gender and her primary allegation was that the defendant failed to allow her to return to her original job following her maternity leave or and/or failed to provide her with a job that matched her grade level.

In the section entitled “brief outline of complaints” attached to her Form EE1, the plaintiff claimed that the alleged discrimination significantly affected her “health and wellbeing”.

The plaintiff also lodged a personal injury claim against the defendants which appeared to relate to the same alleged damage to her “health and wellbeing”.

Duplication of claims

The defendant sought to strike out the plaintiff’s personal injury claim dated 2009 as an abuse of process and/or a duplication of the plaintiff’s equality claim against the defendant and/or for want of prosecution. The defendant claimed that the same events caused the alleged personal injury claimed in the personal injury summons

In this regard the defendant relied upon the rule in Henderson v Henderson (1843) 3 Hare 100 and Section 101(2)(a) of the Employment Equality Act 1988 (as amended) which prevents the duplication of proceedings.

In her submission filed with the Equality Tribunal, the plaintiff claimed that the defendant caused her considerable health difficulties including stress, anxiety, depression and panic attacks. The submissions and her oral evidence to the Equality Tribunal dealt with the entire period referred to in the personal injury summons. The High Court noted that There appeared to be no part of the claim in the personal injury summons that was not made to the Equality Tribunal.

Decision

Justice Hedigan referred to Section 101 of the Employment Equality Act 1998 – 2008 at (2)(a) which provides:

“Where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual –

(a) shall not be entitled to recover damages at common law in respect of the case, and . . ..”

Justice Hedigan also referred to the rule in Henderson v. Henderson and quoted from Lord Bingham in Johnson v. Gore Wood & Co. [2002] 2 AC 1 whereby;

“Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

The High Court also referred to the case of Woodhouse v. Consignia Plc [2002] 1 WLR 2558 where Lord Justice Brooke referred to the public interest in the efficient conduct of litigation and stated (at p. 2575):

“………..The rationale for the rule in Henderson v Henderson (1843) 3 Hare 100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all, is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever, and that a defendant should not be oppressed by successive suits when one would do.”

The High Court commented that all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances.

In respect of the equality claim, Justice Hedigan noted that the plaintiff summed up the effects of all her complaints as distress and humiliation, causing her considerable health difficulties, including stress, anxiety, depression and panic attacks. She stated she was then undergoing hypnotic and anti-depressant medication and psychotherapy.

In respect of bullying, harassment and psychological abuse set out in her personal injury summons, the Court noted that the claims set out started with the announcement of the plaintiff’s pregnancy and concerned the same conduct described in Form EE1 and submissions supporting the same to the Equality Tribunal.

Justice Hedigan stated that it was clear from the plaintiff’s own pleadings and submissions in the two sets of proceedings that both her employment claim and her personal injury claim arise out of the same matters, i.e. alleged mistreatment in her working environment. He stated

“…..The plaintiff in issuing these personal injury proceedings after her employment equality complaints, in my view, drew an artificial distinction which does not stand up to analysis”.

In terms of the reliefs sought, the High Court noted that the plaintiff’s claim in personal injury proceedings was for compensation for the stress and the health problems arising therefrom and that such a remedy may be awarded by the Labour Court in the employment equality proceedings (Ntoko v. City Bank [2004] ELR 116). The Labour Court may also refer to a complainant’s medical reports in assessing the compensation to be awarded (McGinn v. Daughters of Charity EDA9/2003).

Justice Hedigan noted that when the plaintiff chose to create an artificial distinction in the one essential complaint to pre and post-August 2008 by issuing personal injury proceedings, she “in my view, breached the provisions of s. 101(2)(a) of the Employment Equality Act 1998 – 2008 and breached the rule in Henderson v. Henderson”.

He further noted “By confining her complaints in one set of proceedings these statutory and common law requirements do not in any way limit the plaintiff’s right to a remedy for those complaints” and that the plaintiff was better off having all of her complaints dealt with in the one set of proceedings.

The High Court in conclusion allowed the defendant to dismiss the proceedings.

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