Estoppel In Personal Injury Practice

• Published date: 23 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury
• Law Firm: 1 Chancery Lane
• Author: Mr Maurice Rifat

Lawler v Co-Operative Group Limited [2022] Liverpool County Court

In a recent appeal it was confirmed that where the Defendant has, in Employment Tribunal proceedings, made written and oral submissions that the Claimant was free to pursue her claim for personal injury in the County Court, an estoppel arises to prevent the Defendant relying on the rule in Henderson v Henderson and striking out the subsequent County Court proceedings.

The Claimant was a regional manager in the Defendant's employment. She brought a claim against the Defendant in the Employment Tribunal for bullying and harassment, which was heard in July and August 2018. Although some aspects of her claim were dismissed, the ET upheld six findings of harassment.

Following Judgment and before the remedies hearing the Claimant was examined by a jointly instructed psychiatrist and was diagnosed with PTSD. This was first time such diagnosis had been made.

Thereafter an application was made to amend the tribunal proceedings to include a claim for personal injury, increasing the value of her claim to over '1.6 million. The application was heard on the morning of the remedies hearing.

In response to the application the Defendant submitted that there would be little or no prejudice if the application was dismissed as the Claimant was "free to pursue her claim (if so advised) through the Civil Courts", and further they stated "if the Claimant feels that her personal injury claim with associated losses...has merit and is arguable, she is of course free to pursue this in the Civil Courts, and accordingly there is little to no prejudice to the Claimant in refusing the amendment and significant prejudice to the Respondent (Defendant) in allowing it."

The Claimant's representative in the ET had at first argued that any claim subsequently pursued in the County Court would be a duplication of proceeding thereby causing immense prejudice to the Claimant if her amendment was not permitted. Following the Defendant's submissions, he changed his position; he accepted that the Claimant could bring a claim in the County Court and conceded that the balance of prejudice in allowing the amendment would therefore be against the Defendant. The application to amend was dismissed in the interests of justice, the balance the prejudice favouring the Defendant.

Subsequently, the Claimant commenced a claim for damages for personal injury in the County Court, with the allegations of breach of duty including the six findings...