CA-2025-000379 - [2025] EWCA Civ 1357

Does section 18A (1) apply to permission to amend?

Mr Baker’s case on this aspect turned on the fact that section 18A does not use the phrase “present a complaint” or any other formula which unequivocally refers to the initiation of proceedings. Instead the words used are “presents an application to institute relevant proceedings relating to any matter”. He focused both on the word “application” and on the phrase “relevant proceedings”. As to the former, he submitted that it was apt to cover any kind of invocation of the tribunal’s processes to initiate a claim, whether in the form of the initial presentation of a complaint or by way of an application to amend. As to the latter, he pointed out that the definition in section 18 (1) of the ETA does not refer to the presentation of a claim form or any particular process: it simply identifies the statutory provision under which the claim is brought or, as he put it, the statutory cause of action. Thus, he submitted, an application to amend to introduce a fresh cause of action is properly to be regarded as the institution of such proceedings.

If that were correct, it would follow that both Judge Eady in Science Warehouse and Langstaff P in Drake were wrong to hold that section 18A only applied to the original initiation of proceedings: see paras. 29 and 26 of their respective judgments. However, we are not bound by either decision, and I therefore need to consider whether they were correct. I believe that they were. My reasons are essentially twofold.

First, I do not believe that Mr Baker’s construction of the phrase “presents an application to institute relevant proceedings” corresponds to its natural meaning. The key words in the phrase are in my view “institute … proceedings”. “Proceedings” may be a somewhat protean term, the precise meaning of which may be affected by its context; but in ordinary legal parlance reference to the “institution” of proceedings would normally connote the initiation of a distinct process defined by a claim form and the responses to it: an application to amend those proceedings, including by the joinder of a new party, would not typically be described as the institution of proceedings. (Indeed the terms “amendment” and “joinder” positively acknowledge that proceedings are already in place.) That was clearly the understanding of Langstaff P in the passage quoted above, and I respectfully agree with it. That construction is reinforced, as Judge Eady in particular emphasises, by the reference in section 18A (1) to a “prospective” claimant: in the case of an application to amend the claimant is not prospective but existing. The fact that the definition of “relevant proceedings” is framed by reference to particular kinds of claim does not seem to me to advance the argument: that does no more than identify the kinds of proceedings the institution, or prospective institution, of which is covered by section 18A.

I do not believe that that construction is affected by the introductory words “presents an application to”. I note that that phrase is not in fact used in section 18A (7), which begins “[a] person may institute relevant proceedings” tout court, and it seems to me essentially secondary. It is not entirely clear why the draftsman resorted to this rather circumlocutory formula, but the likely explanation is that the jurisdiction-conferring provisions of the various kinds of relevant proceeding do not all use the language of “may present a complaint” – see para. 18 above – and it was therefore necessary to find a phrase that covered all the labels used for the institution of proceedings.

Second, that construction is in accordance with the statutory purpose. It is one thing to require that an opportunity be created for early conciliation before there has been any resort to the tribunal, but the situation is different once proceedings have started. There will at that point have been an opportunity for early conciliation, which ex hypothesi will not have borne fruit. Applications to introduce fresh claims, or join new parties, may be made at any stage of the ensuing proceedings, and in a complex case possibly on many occasions. It is extremely unlikely that Parliament will have intended that on each such occasion the claimant will have to go through the almost certainly futile process of invoking the early conciliation procedure, and impose on ACAS the burden of confirming whether both parties are interested in conciliation (Footnote: ⁸). (I appreciate that this point may appear to echo Swift J’s argument which I reject at paras. 60-62 above, but the question there was whether the likely futility of conciliation in the exceptional case where non-compliance is not picked up at the gateway stage justified a conclusion that section 18A did not go to jurisdiction at all: that is quite different from the question whether it applies to applications to amend.)

I should say that Mr Baker sought to distinguish Science Warehouse and Drake on the basis that in those cases the claimant had in fact obtained an ECC (albeit in the one case relating to a different claim and in the other to a different respondent), whereas here the Claimant had not invoked the early conciliation process at all. But I do not see how that distinction can affect the question of construction raised by his submission.