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Nayif v The High Commission of Brunei  EWCA Civ 1521;  IRLR 134; (2015) EMPLR 021
27 November 2014
Court of Appeal, Civil Division
The President of the Queen’s Bench Division, Sir Brian
Leveson, Elias and Rafferty LJJ
Normally, if someone brings a court or tribunal claim on the
same subject matter as a previous claim, the later claim can be struck out on
the basis either of ‘cause of action estoppel’ (ie the claim has already been
determined) or ‘issue estoppel’ (ie a question of fact has already been
determined which would defeat the subsequent claim). This case shows that no
question of either type of estoppel arises where a claim is dismissed by a
tribunal because it is out of time.
N’s complaints of race
discrimination were brought outside the three month time limit. The tribunal
concluded there were no grounds which made it just and equitable to extend the
time limit, so the claims were dismissed. N subsequently brought claims in the
High Court for negligence relying on the same facts. The employer argued the
claims should be struck out because they had already been determined. The Court
of Appeal disagreed: the tribunal had never determined the merits of the
claims. The only matter it had determined was that the complaints were made too