See Attached Schedule v His Majesty’s Revenue and Customs & Others — 2022

These claims concerned alleged direct age discrimination arising from the Civil Service Compensation Scheme taper and cap provisions for voluntary redundancy and voluntary exit. The wider multiple had previously been case-managed by a Presidential Case Management Order, and the Newby sample claims were heard in December 2021. In the Newby judgment, promulgated on 18 January 2022, the tribunal held that the scheme was age discriminatory but that the respondents had shown objective justification.

After Newby, the respondents applied to strike out the FDA claimants' claims. The FDA claimants said they were not parties to the Newby hearing, had not been involved in the sample selection process, and wanted to rely on fresh evidence, including Mr Richard Gibson's preliminary report on the benefits and losses ratio and the methodology used in the justification analysis. The tribunal addressed the matter through the abuse of process authorities it had cited, including Ashmore v British Coal Corporation, Johnson v Gore Wood, Allsop v Banner Jones Ltd and Phosphate Sewage Co Ltd v Molleson, together with the rule 2 overriding objective and rule 37.

The tribunal held that re-litigation of the justification issue on these facts was abusive. It found that the FDA claimants had been aware that the multiple was proceeding by way of sample cases, that their solicitors had been notified of the December 2021 hearing, and that they could have intervened or raised the possibility of further evidence before that hearing. The tribunal was not persuaded that the proposed fresh evidence could not have been obtained earlier, or that it would entirely change the aspect of the case. It concluded that allowing the claims to proceed would be manifestly unfair and would bring the administration of justice into disrepute, and that no less draconian response was suitable, so the claims were struck out/dismissed.