Yes, held the Court of Appeal in Nayif v The High Commission of Brunei Darussalam.
In 2011, Mr Nayif issued an employment tribunal claim against the High Commission alleging, amongst other things, that he had suffered race discrimination resulting in psychiatric injury. These claims were advanced outside the three month time limit and the employment tribunal, without engaging with the substantive merits of the case, refused to extend time. In 2012, Mr Nayif issued proceedings in the High Court for negligence, accepting that the issues were the same as those before the employment tribunal. The High Commission relied on the defence of issue estoppel/res judicata on the basis that the employment tribunal had dismissed a claim on the same issues. Both the Master (albeit with “considerable reluctance”) and the High Court felt bound by authority, particularly Lennon v Birmingham City Council, to strike out the claim.
The Court of Appeal disagreed, noting that a determination that an issue could not be considered at all did not amount to a final disposal of the claim. The apparently strict test in Lennon, suggesting that res judicata applies whenever there has been any order dismissing the case, was too wide and did not cover situations where the order dismissing proceedings was the result of a refusal to accept jurisdiction. As a result, Mr Nayif was allowed to pursue his action in the High Court.
The Court of Appeal considered, but rejected, Mr Nayif’s argument that striking his claim out as res judicata would constitute a breach of Article 6.