D Carryl v Governing Body of Manford Primary School
[2023] EAT 167
Addison Lee v H Afshar & Ors
18 July 2024
[2024] EAT 114
Employment Appeal Tribunal
Addison Lee lost an appeal about money it had to pay before its case against workers went to court. The court said it was okay to look at a previous similar case when deciding how much money to pay, even though the people involved were different. Addison Lee also argued several other things, but the court wasn't convinced.
Key Facts
- •Addison Lee appealed deposit orders made under Rule 39 of the Employment Tribunals Rules of Procedure.
- •The orders related to arguments Addison Lee raised against 329 claimants alleging worker status.
- •The Employment Tribunal (ET) considered the outcome of previous litigation (Lange v Addison Lee) involving similar arguments and facts.
- •The ET refused to strike out Addison Lee's arguments but granted deposit orders.
- •Addison Lee argued that the ET erred in considering the Lange decision due to the rule in Hollington v Hewthorn (different parties).
Legal Principles
When assessing whether allegations have little reasonable prospect of success for deposit orders (Rule 39), an ET can consider outcomes of previous litigation with identical facts and arguments.
Employment Tribunals Rules of Procedure 2013, Rule 39
The test for striking out is different from the test for making deposit orders; inconsistent reasoning doesn't require the same result.
Hemdan v Ishmail [2017] ICR 486
Deposit orders must be proportionate and not restrict access to justice; affordability and proportionality are key considerations.
Hemdan v Ishmail [2017] ICR 486; Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14/JOJ (2014, EAT)
Rule 39 deposit orders aim to identify weak claims early, deter their pursuit, and save resources; they are persuasive, not punitive, unless the claim ultimately fails.
Employment Tribunals Rules of Procedure 2013, Rule 39
Hollington v Hewthorn does not prevent consideration of previous litigation in a Rule 39 deposit order application; the ET’s decision isn't binding and is not a trial.
Hollington v F Hewthorn & Co Ltd [1943] KB 587 CA
Outcomes
Appeal dismissed.
The ET acted within its jurisdiction and did not err in considering the Lange decision, applying Rule 39 appropriately, or making proportionate deposit orders. Hollington v Hewthorn was distinguished as inapplicable to the summary nature of Rule 39 assessments.