Although claimants cannot pursue a claim in a court dealing with matters that have already been considered in another court, the Court of Appeal held in Nayif v High Commission of Brunei Darussalam that if the claim was rejected because it was beyond the first court’s jurisdiction, a case based on the same facts could still be heard elsewhere.

Basic facts

Mr Nayif, a chauffeur employed by the High Commission of Brunei Darussalam, brought claims of bullying, harassment and abuse which he said were due to race discrimination, and which caused him to suffer psychiatric injury. However, without hearing the substantive merits (or otherwise) of his case, the tribunal ruled that his claims were out of time and that there were no grounds for extending the time. His application for permission to appeal against that decision was also refused.

He then issued proceedings in the High Court for negligence and breach of contract in relation to the psychiatric injury he alleged he had suffered. However, the High Commission argued that he could not claim damages for compensation which arose from the same facts that had already been dismissed by the tribunal, a defence known as “issue estoppel”.

High Court decision

With “considerable reluctance”, the High Court judge agreed with that defence, on the basis that he was bound by the decision of the Court of Appeal in Lennon v Birmingham City Council. In that case (where the facts were very similar to this one), the Court ruled that the doctrine was not predicated on why the Court made the decision to dismiss the claim, but just on the simple fact that an order had been made.

Mr Nayif appealed against that decision.

Decision of Court of Appeal

The Court of Appeal held that, although in general issues which have been litigated should not be re-opened, it could see no justification for that principle applying in circumstances where the issues had not been adjudicated and none of the parties could be said to have conceded the issue by choosing not to have the matter formally decided.

The reality was that, had Mr Nayif started his action for negligence in the tribunal, it would not have had jurisdiction to hear it. In those circumstances, it did not make sense to say that a final judgment had been handed down and therefore it could not be litigated again if he had subsequently brought proceedings in the High Court for negligence. Although the tribunal decided it could not hear the race discrimination claim, it would be unjust to treat that decision as the final disposal of his entire claim.

Although the decision in Lennon could be read as applying to any case, the Court of Appeal held that the words had to be read in the context of the facts of that case and could not be taken to include situations where the order dismissing proceedings was the result of a refusal by a court to accept jurisdiction. It also referred to the later case of Ako v Rothschild Asset Management Ltd in which the Court of Appeal recognised that there was a distinction between a situation where the intention was to dismiss a claim as opposed to discontinue it. If it was clear on the facts that the withdrawal was essentially a discontinuation of proceedings, the principle that the issue had already been litigated would not apply even though the application had been dismissed.

The Court of Appeal therefore gave permission for Mr Nayif to pursue his negligence action in the High Court.