CPR 52.30 Reopening is Exceptional: Later Authority is Not Enough, and “Reason Why” Findings Remain for the ET

1. Introduction

Omooba v Michael Garrett Associates Ltd (t/a Global Artists) & Anor ([2026] EWCA Civ 253) concerned an attempt by Miss Seyi Omooba (a professional actress) to reopen, under CPR 52.30, a Court of Appeal judge’s earlier refusal of permission to appeal. The underlying Employment Tribunal (“ET”) proceedings arose after the Curve Theatre (the “Theatre”) terminated Miss Omooba’s acting contract for a production of The Color Purple following a rapid and hostile social-media reaction to the resurfacing of a 2014 Facebook post expressing her religious beliefs about homosexuality. Shortly thereafter, her agent, Michael Garrett Associates (the “Agent”), also terminated its contract.

Miss Omooba’s ET claims included direct discrimination (Equality Act 2010 (“EqA”) s.13), harassment (EqA s.26), indirect discrimination, breach of contract, and she challenged costs and an order requiring removal of hearing materials from websites. The ET rejected the claims, ordered costs, and made a publication/removal order. The EAT (Eady J) dismissed her appeal. A single Lord Justice (Bean LJ) then refused permission to appeal to the Court of Appeal. Miss Omooba sought to reopen that refusal, alleging (principally) inconsistency with the later Court of Appeal decision in Higgs v Farmor's School [2025] EWCA Civ 109, [2025] ICR 1172.

The key issue before the Court of Appeal (Vos MR, Moylan LJ, and another Lord Justice giving the leading judgment) was whether the stringent conditions for reopening under CPR 52.30 were met—particularly whether Bean LJ had “failed to grapple” with the essential points, and whether any alleged inconsistency with Higgs demonstrated a process-corrupting error causing real injustice.

2. Summary of the Judgment

  • The Court of Appeal dismissed the CPR 52.30 application to reopen the refusal of permission to appeal.
  • The asserted inconsistency with Higgs v Farmor's School [2025] EWCA Civ 109, [2025] ICR 1172 was misconceived: Higgs did not turn on the contested “reason why” causation issue that was central in Miss Omooba’s case.
  • The court reaffirmed that the CPR 52.30 jurisdiction is truly exceptional, aimed at cases where the integrity of the earlier proceedings has been critically undermined, and where there is a powerful probability of significant injustice.
  • Bean LJ did grapple with the essential issues in refusing permission; brief reasons can suffice if they address the key points.
  • On the discrimination issues, the court emphasised that determining the “reason why” for treatment under EqA s.13 is a question of fact for the ET; the ET’s conclusions (as upheld by the EAT and Bean LJ) were permissible.
  • The harassment grounds failed to reach the CPR 52.30 threshold; “harassment by inaction” is controversial and evidence-sensitive.
  • The breach of contract point was academic on the facts (full fee offered; and findings that she would not have performed the role).
  • The documents point failed: the ET had case-management jurisdiction to restrict continued publication of disclosed materials, supported by authority applying the logic of CPR 31.22.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Reopening final appellate decisions: CPR 52.30

  • Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528
    Established the rare jurisdiction to reopen final appellate determinations to prevent real injustice where the integrity of the earlier process was undermined. This remains the doctrinal foundation for CPR 52.30.
  • Municipio de Mariana v BHP Group plc [2021] EWCA Civ 1156, [2022] 1 WLR 919
    Supplied the modern restatement of CPR 52.30 principles, emphasising exceptional circumstances, the need for a “powerful probability” of significant injustice, and the concept that the earlier judge must have “grappled” with the essential points.
  • R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (Practice Note) [2018] EWCA Civ 860, [2018] 1WLR 5161
    Informed the “grappling” standard: if a clearly articulated point is not understood and that misunderstanding corrupts the process, reopening may be possible.
  • R (Wingfield) v Canterbury City Council (Practice Note) [2020] EWCA Civ 1588, [2021] 1WLR 286
    Reinforced the restrictive approach to reopening, supporting finality unless process integrity is compromised.

These authorities drove the court’s core conclusion: alleged legal disagreement, later case developments, or re-argument of merits do not come close to the “critical undermining” standard required to reopen a final refusal of permission to appeal.

B. Direct discrimination causation: “reason why”, motive, and context

  • Nagarajan v London Regional Transport [2000] 1 AC 501
    The court relied heavily on Lord Nicholls’ formulation: the tribunal must ask the “crucial question”—why the claimant was treated as they were (“the reason why”). This is distinct from the discriminator’s motive (even a benign motive does not negate discrimination if the protected characteristic materially influenced the decision).
  • Din (Ghulam) v Carrington Viyella Ltd [1982] ICR 256
    Used to illustrate the long-established separation between “reason why” and motive, and the risk of employers responding to (or seeking to neutralise) discriminatory reactions in ways that can still amount to discrimination.
  • Amnesty International v Ahmed [2009] ICR 1450
    Underhill J’s analysis was used to demonstrate (i) how tribunals infer the “reason why”, (ii) the limits of “but for” reasoning, and (iii) how a protected characteristic can be part of the factual background without being the operative ground of the impugned treatment.
  • James v Eastleigh Borough Council [1990] 2 AC 751
    Cited (via Ahmed) as an example of “criterion” cases where discrimination is apparent from the criterion itself, contrasting with subjective “reason why” cases requiring inference.
  • Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48, [2001] ICR 1065
    Cited for the proposition that the “reason why” determination is for the tribunal of fact—reinforcing appellate restraint.
  • Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, [2022] ICR 1513
    Central to the court’s discussion of the so-called “separability approach”: a tribunal may separate the protected characteristic (or disclosure) from distinct, separable features such as the manner of expression or other conduct; this is not a rule of law, but a tool for fact-finding.
  • Fecitt and others v NHS Manchester [2011] EWCA Civ 1190, [2012] ICR 372
    Supported the proposition that an employer can, in principle, act to resolve a dysfunctional situation without the protected act/characteristic being the operative reason—provided the tribunal is satisfied that dysfunction, not the protected matter, was the real reason.
  • Martin v Devonshires Solicitors [2011] ICR 352
    Referenced (through Kong) in relation to distinguishing protected activity from separable conduct.

Applying these authorities, the Court of Appeal rejected the submission that, as a matter of law, the ET had to treat the publicity storm and third-party reactions as merely “motive”, compelling a discrimination finding. The court treated the ET’s conclusion—that commercial/artistic dysfunction and business survival were the operative reasons—as a permissible factual evaluation.

C. The attempted reliance on Higgs

  • Higgs v Farmor's School [2025] EWCA Civ 109, [2025] ICR 1172
    The court explained why Higgs did not create any inconsistency justifying reopening. In Higgs, the “reason why” issue was effectively not in dispute at appellate level; the live question became proportionality/justification where the employer acted because of the manner of manifestation of belief. By contrast, Miss Omooba’s case turned on whether the protected belief/manifestation formed an operative part of the “reason why” the contracts were terminated—an ET fact question.
  • Page v NHS Trust Development Authority [2021] EWCA Civ 255, [2021] ICR 941
    Discussed (through Higgs) for the idea that objection to the way a belief is manifested can engage direct discrimination analysis, but can be lawful if objectively justified—framing why Higgs was fundamentally a different kind of case.

D. Harassment by inaction and Convention-rights framing

  • Conteh v Parking Partners [2011] ICR 341
    Bean LJ had relied on this for the proposition that “harassment by inaction” is controversial and requires cogent evidence that inaction worsened the position. The Court of Appeal endorsed the view that these grounds could not meet CPR 52.30’s threshold.

E. Publication of documents, open justice, and ET jurisdiction

  • Cape Intermediate Holdings Limited v Dring [2019] UKSC 38, [2020] AC 629
    Provided the open-justice framework used by the ET/EAT in explaining why temporary public access during a remote hearing did not translate into a permanent entitlement to publish the entire bundle and witness statements online.
  • IG Index PLC v Cloete [2014] EWCA Civ 1128, [2014] CP Rep 44
    Key authority relied on by the Court of Appeal to uphold the ET’s jurisdiction under general case-management powers: it is implicit that the restrictions akin to CPR 31.22 can apply in tribunal proceedings, including restricting use/publication of disclosed documents.
  • Khuja v Times Newspapers Limited [2017] UKSC 49, [2019] AC 161
    Distinguished: the court held that the passages relied upon did not concern the publication of disclosed trial bundle materials by a party and did not confine the ET’s case management powers in the manner argued.

F. Other authorities appearing but not determinative

  • Lee v Ashers Baking Co Ltd [2018] UKSC 49, [2020] AC 413
    Mentioned as part of a cross-appeal rendered unnecessary by the EAT’s disposal; it did not drive the Court of Appeal’s CPR 52.30 decision.

3.2 Legal Reasoning

  1. Identify the true nature of the application: this was not a merits appeal, but an attempt to reopen a final refusal of permission. The court framed the question strictly through CPR 52.30 and Municipio de Mariana v BHP Group plc [2021] EWCA Civ 1156, [2022] 1 WLR 919.
  2. Reject “Higgs inconsistency” as a gateway: the court explained that Higgs turned on a different legal structure (manifestation/manner and proportionality), whereas Miss Omooba’s case turned on the ET’s factual finding about the “reason why”. A later decision in a different factual/legal posture cannot, without more, demonstrate a process-corrupting misunderstanding.
  3. Reaffirm appellate restraint on “reason why” findings: drawing on Nagarajan v London Regional Transport [2000] 1 AC 501, Amnesty International v Ahmed [2009] ICR 1450, and Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48, [2001] ICR 1065, the court emphasised that (save for criterion cases) the “reason why” is a question of fact and inference for the ET.
  4. Explain the “separability approach” correctly: following Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, [2022] ICR 1513 (and the whistleblowing analogy), the court treated separability as an analytical tool, not a legal rule that forces a discrimination finding whenever protected belief is part of the background.
  5. Apply the “grappling” standard: the court held Bean LJ’s reasons showed engagement with the essential points. “Grappling” does not require lengthy reasoning; what matters is that the key issues are addressed. The attempt to repackage merits arguments as a failure-to-grapple complaint did not meet the CPR 52.30 threshold.
  6. Dispose of remaining grounds as far from exceptional: harassment-by-inaction was not shown to be viable on findings/pleadings; the contract issue was academic given the full-fee offer and findings that she would not perform; costs involved case-management discretion and was supported by the ET’s careful reasoning; documents/publication was within jurisdiction and discretion.

3.3 Impact

  • CPR 52.30 remains a “process integrity” jurisdiction, not an error-correction mechanism: the decision underscores that litigants cannot treat later appellate authority, or perceived tensions between outcomes, as a routine basis to reopen final PTA refusals.
  • Discrimination litigation: firm boundary between context and operative “reason why”: the judgment consolidates (in a structured summary) the doctrinal separation between protected characteristics as background circumstances and protected characteristics as operative reasons. It also reinforces that ET fact-finding is the primary arena for resolving that boundary.
  • “Separability” is a tool, not a trump card: by aligning EqA causation analysis with the logic articulated in Kong/Fecitt, the judgment may encourage tribunals to articulate more clearly what is being treated as separable (e.g., manner of expression, workplace dysfunction, third-party backlash) and why it is or is not fairly distinguishable from the protected matter.
  • Remote-hearing document access: the approval of the ET’s approach, supported by IG Index PLC v Cloete and the logic of CPR 31.22, signals that temporary access arrangements during remote hearings do not confer enduring publication rights over entire bundles and witness evidence.

4. Complex Concepts Simplified

CPR 52.30 (reopening)
A narrow power to reopen a final appellate decision (including a refusal of permission) only where it is necessary to avoid real injustice, circumstances are exceptional, and there is no alternative remedy—typically where something went wrong that undermined the integrity of the earlier process.
“Reason why” vs “motive” (EqA s.13 direct discrimination)
The tribunal asks: what actually caused the decision (the operative ground)? Motive explains the aim behind that ground (e.g., commercial protection). A benign motive does not excuse discrimination if the protected characteristic materially influenced the operative ground; but the protected characteristic being part of the background does not automatically make it the operative ground.
“Separability approach”
A way of analysing whether what an employer acted on can be separated from the protected matter (e.g., belief) and treated as a distinct reason (e.g., abusive manner of expression, hacking, or an independently established dysfunctional situation). It is not a legal rule that dictates the answer; it helps the fact-finder decide what the real reason was.
Harassment “by inaction”
The idea that failing to act (e.g., failing to support or condemn hostility) could itself be “unwanted conduct” creating a hostile environment. The courts treat this as controversial and highly dependent on pleadings, evidence, and findings that inaction worsened the environment.
Open justice and publication of disclosed documents
Open justice supports public access to hearings and certain materials, but it does not mean a party can publish the entire disclosed bundle to the world indefinitely. Courts/tribunals can restrict use/publication of disclosed documents, even if referred to publicly, where rules or case-management powers allow.

5. Conclusion

The Court of Appeal’s decision is a clear reaffirmation that CPR 52.30 is reserved for exceptional, process-undermining failures, not for relitigating merits or invoking later appellate decisions as supposed “inconsistencies”. Substantively, the judgment provides a structured and practical synthesis of direct discrimination causation principles: the “reason why” inquiry is fact-sensitive, motive is distinct, “but for” reasoning is insufficient, and “separability” is an aid to identifying the true operative reason. Finally, the court’s treatment of the documents issue confirms robust tribunal powers to control publication of disclosed materials, particularly where temporary remote-access arrangements might otherwise be misconstrued as a right to permanent online dissemination.