Juliet May is a barrister at 3 Verulam Buildings.
What do you do when similar issues arise in two parallel sets of proceedings pending in different tribunals? The simple answer is to apply to have proceedings in one tribunal stayed. But what if that stay is opposed, or is refused? This was the dilemma facing plaintiffs in the recent High Court case of Chorion v Lane.
Lane, formerly a director of Chorion, started an industrial tribunal claim for unfair dismissal. Shortly afterwards, Chorion began High Court proceedings against Lane for breach of director's duties and breach of confidence, and sought to stay the tribunal proceedings.
Lane would not consent to the stay, so Chorion issued an application for an expedited trial to ensure that its High Court action was heard first. The application went before Mr Justice Laddie.
Years earlier, Mr Justice Laddie had confronted a similar problem as counsel for the defendants in Sears Plc v Sears Roebuck & Co. In that case there was an overlap between passing off proceedings and applications before the Trade Mark Registry. The defendants obtained an order directing the plaintiffs not to prosecute their Registry proceedings.
The decision in Sears was based on the court's desire to avoid duplicate proceedings. As the court in that case indicated, complete identity of issues is not necessary to establish the multiplicity ground, merely a "substantial overlap" giving rise to a "real risk" of conflicting decisions.
Having found such an overlap in the Chorion matter, Mr Justice Laddie ordered that Lane be restrained from proceeding with his unfair dismissal claim in the industrial tribunal until final determination of Chorion's High Court action. The disadvantage to Lane was mitigated by a concurrent direction expediting Chorion's action.
This decision pushes at the boundary of Sears in two respects. First, the industrial tribunal had not yet decided on the matter of a stay. Second, in Trade Mark Registry proceedings discovery and cross-examination is restricted, whereas the industrial tribunal has similar powers to the High Court in these respects.
The result of his order was, as Mr Justice Laddie observed, effectively to impose a stay. The Sears order is both a form of appeal (if a stay has already been refused) and a pre-emptive strike (where none has yet been considered by the relevant tribunal). It shows the court acting to exercise control over proceedings and one which, in the new civil procedure rules era, is likely to flourish.