The High Court dismissed an interlocutory injunction application in circumstances where an employer sought to dismiss personal injury proceedings against them, highlighting the importance of encouraging employees to obtain legal advice when signing a waiver agreement.

What happened?

The plaintiff in the case had worked for the defendant from 1998 until 2015 when her employment ceased by reason of redundancy. When the plaintiff resigned, she signed a waiver agreement. Eight months after signing the waiver, the plaintiff made an application to PIAB which was followed by a personal injury summons in 2016. The plaintiff claimed that during the course of her employment she had sustained personal injuries as a result of the defendant's negligence and/or breach of duty.

The present judgment was delivered in respect of an interlocutory application. The defendant put forward three grounds upon which it was argued that the proceedings should be dismissed: (a) The proceedings were bound to fail by virtue of the waiver agreement which the plaintiff signed (b) It was submitted that the proceedings were bound to fail as being statute barred (c) It was submitted that the proceeding should be dismissed for want of prosecution pursuant to O.36, r.12 of the RSC and/or pursuant to the Court's inherent jurisdiction on the grounds that there had been a delay on the part of the plaintiff that was inordinate and inexcusable in both the commencement and the conduct of the proceedings with a real risk that there could be an unfair trial.

What did the High Court decide?

In delivering the judgment, Bolger J highlighted that the plaintiff had not been advised by the defendant to seek independent legal advice in relation to the waiver agreement. Furthermore, the plaintiff was not afforded an opportunity to seek independent legal advice. As the plaintiff described it in a replying affidavit, the agreement had been put to her on a "take it or leave it" basis. The plaintiff's motive for signing the agreement was that she was stressed at work and wanted to leave her employment with the defendant and if she chose not to sign the agreement, the offer of redundancy would go to another employee. As Bolger J pointed out, the defendant had stated in the agreement that the plaintiff had obtained independent legal advice when in reality, she had not. It was indicated that had the plaintiff obtained legal advice, the defendant may have been able to rely on the waiver. The Court was not satisfied that the mere existence of the waiver agreement was such that the plaintiff's claim was bound to fail. As such, Bolger J held that the issue should be determined by a trial judge as a preliminary issue.

In relation to the argument that the proceedings were bound to fail on the basis that they were statute barred, the main question was at what point the plaintiff knew the injury was significant and/or attributable to the defendant's omission or act of negligence either wholly or in part. The Court indicated that this was an issue which should be determined as a preliminary issue by the trial judge. Accordingly, the Court refused to dismiss the proceedings on this ground.

In considering the instances of delay relied on by the defendant, the Court was not satisfied that the delays were inordinate and emphasised that even if that conclusion was wrong, it was not in the interests of justice that the proceedings be dismissed as the periods of delay had not resulted in a substantial risk to having a fair trial or that the periods of delay were likely to cause the defendant to suffer prejudice. On this basis, the Court refused to dismiss the proceedings on the basis of delay.

Key takeaways

It is imperative that employers advise and give the opportunity to any employee signing a waiver agreement to seek legal advice.

Full case here: https://www.casemine.com/judgement/uk/62323b61b50db9fc0c926483