England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 July 2017

LORD JUSTICE BEAN: In this application the Attorney General seeks a civil proceedings order against the respondent, Dr Vaidya, under Section 42 of the Senior Courts Act to prevent him without leave of the court from instituting or making applications in cases in the civil courts and tribunals, in particular the Employment Tribunal and the Employment Appeal Tribunal. The draft order prepared by Mr Lewis, who appears on the Attorney's behalf, seeks also to prevent the respondent from acting as a McKenzie friend for anyone else in the courts or tribunals. The proper wording of such an order would be to prevent him from acting as a representative or McKenzie friend in any court or tribunal.

The Solicitor General Robert Buckland QC MP has given his fiat for the institution of these proceedings.

The Section 42 jurisdiction is now well established. In Attorney General v Barker [2000] 1 FLR 759, Lord Bingham (then Lord Chief Justice) said that the hallmark of a vexatious proceeding is that it has little or no basis in law or at least no discernible basis, that whatever the intention of the proceeding may be its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant and that it involves an abuse of the process of the court meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.

As Dr Vaidya rightly emphasised - and Mr Lewis did not contend otherwise - the wording of Section 42 (1) requires the court to be satisfied that the respondent has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings etc. The words "habitually", "persistently" and "without any reasonable ground" are cumulative; that is to say, all three must be satisfied before an order can be made.

The other authority to which reference should be made at this stage is Attorney General v Mensah [2004] EWHC 1441 (Admin), in which this court (Lord Justice Auld and Mr Justice Pitchford) held that Section 42 is apt to cover proceedings in an employment tribunal and in the Employment Appeal Tribunal, and that the ET and EAT are courts or inferior courts for the purposes of Section 42.

The history of the many cases in which Dr Vaidya has been involved either on his own behalf or on behalf of others is set out in detail in a witness statement of Sharangit Sidhu of the Government Legal Department on which the Attorney relies. Miss Sidhu's witness statement does not consist of argument. It merely sets out in detail the history of fourteen specific cases in which Dr Vaidya has been a party, followed by four cases in which he has appeared on behalf of others, and makes brief reference to one criminal case which to my mind is irrelevant to the present proceedings.

In the overwhelming majority of these cases Dr Vaidya failed on the merits. On nine occasions an application or appeal brought by him has been described as totally without merit. The judges who have so described his cases have included Lord Justice Lewison, Lady Justice Hallett, Mrs Justice Lang, Mrs Justice McGowan and Mr Justice Burnett (as he then was) who, in a case brought by Dr Vaidya against the General Medical Council (GMC) in 2008, said:

"When the matter came before Mr Justice Cranston he considered that the application was totally without merit. I am bound to say that I take the same view. The history of proceedings involving Dr Vaidya and the GMC paints a really rather unfortunate picture. Dr Vaidya, as it seems to me, makes applications both before the GMC and also in this court with a view to trying to frustrate the disciplinary process which has now been in train for some years. It may be that those who are now advising him might consider explaining the possibility that if there is evidence of multiple unmeritorious applications the court might be moved, either by the GMC or of its own motion, to make a restraint order of some sort which would inhibit Dr Vaidya's ability to issue proceedings."

That was some nine years ago. Since then general civil restraint orders have been made against Dr Vaidya but the story continues and now the Attorney General seeks an order under Section 42 of the 1981 Act.

There is one further point of law. Until the decision of the Court of Appeal (Civil Division) in Michalak v General Medical Council in 2016 it was widely believed, and had often been held at first instance, that an employment tribunal had no jurisdiction to consider a claim of discrimination brought against a regulatory body by a doctor or other practitioner whom the regulatory body was seeking to discipline or against whom the regulatory body was seeking to impose sanctions. If a body such as the General Medical Council makes a decision, for example that a doctor should be struck off or suspended, then there is a statutory appeal to the High Court and the employment tribunal has no business with that. But Michalak held that, since there is no statutory appeal against other acts or omissions or alleged acts or omissions of a regulator, there is no jurisdictional bar in such cases to an application to an employment tribunal.

Among the many decisions adverse to Dr Vaidya in employment tribunals, Mr Lewis concedes that probably one, and conceivably a second, may have resulted, at least in part, from the employment tribunal's view that it simply had no jurisdiction. That also applies to two or three of the cases in which Dr Vaidya appeared as a representative in a tribunal on behalf of others. But the vast majority of the decisions against Dr Vaidya as a party in the Employment Tribunal were reached on merits grounds rather than on pre-Michalak jurisdictional grounds. Certainly that is so of all cases in which he made applications to this court.

With those preambles, I turn to the points made by Dr Vaidya in opposition to the Attorney General's application. He put in a helpful skeleton argument in addition to his acknowledgement of service and has taken us at this oral hearing through those documents. He made his points courteously and carefully.

The first point he makes is one which I would accept. The Section 42 jurisdiction is a draconian one and it is one which the court must exercise with great care.

The respondent's next point is that in some of his litigation he has been successful, particularly in what I might call the earlier period of his litigation. This is relevant, in my view, but only to this extent. The Attorney must show under Section 42 that the respondent has habitually and persistently instituted proceedings or made applications without reasonable grounds. In a case in which he was successful, that case or that application cannot be relied on - and of course is not relied on in the present case - as being grounds for making a Section 42 order. If a hypothetical litigant has made 100 applications to the court of which ten have succeeded and 90 have failed it is only the 90 that should be scrutinised to see whether they were made without reasonable grounds. But the Section 42 jurisdiction is not a question of a batting average. In the example I have just given, if the applicant law officer establishes that 90 or anywhere near 90 applications have been made which do satisfy the Section 42 test it is not an answer for the respondent to say "I have succeeded sometimes".

I have referred already to the fact that on nine occasions a judge has certified an application by Dr Vaidya as being totally without merit. Dr Vaidya complains that those orders were in all cases, or at any rate many of the nine cases, made without a full examination of the merits of his case. I do not accept that it is open to us to go behind the certification by a judge of this court or of the Court of Appeal that a case is totally without merit, or an expression of view by the Employment Tribunal or the Employment Appeal Tribunal to like effect. Similarly, one of Dr Vaidya's complaints - although it is right to say that he did not develop it at length - is that some of the decisions made against him are simply wrong. Again, it is not open to this court on a Section 42 application to go into the rightness or otherwise of a decision already made against the respondent in other proceedings - with the proviso that I have already discussed by reference to Michalak: if the law has changed or the law as previously understood has been revealed to be erroneously understood then that is an exception to the general principle.

Dr Vaidya next contends that the Attorney General's Office did not properly investigate the merits of the previous litigation before making the Section 42 application. This is really a very similar point to the last one. The Attorney is entitled to take previous litigation as he finds it. Dr Vaidya considers that the General Medical Council have acted oppressively towards him over a period of many years. But that suggestion is not a matter for the Law Officers' Department to investigate before making a Section 42 application. They are entitled to rely on findings made by the courts or tribunals and then to come to this court and, on the basis of those findings, to ask the court to make a Section 42 order.

Dr Vaidya has a number of claims or appeals outstanding. For example, earlier this year Mrs Justice McGowan made a General Civil Restraint Order against him against which he is seeking to appeal. As Lord Bingham observed in Barker, the effect of a Section 42 order, if made, is not to stifle claims - whether continuing or prospective - but to subject them to a filter. If an order is made, Dr Vaidya's continuing litigation or appeals do not come to an end and disappear, but such an order would mean that Dr Vaidya would have to seek the leave of the court in order to continue with a pending claim.

Dr Vaidya makes reference to the Human Rights Act, both in relation to any order made in respect of his own litigation and in respect of his activities as a representative or McKenzie Friend. In Ewing v Department of Constitutional Affairs [2006] 2 All ER 993, Mr Justice Sullivan (as he then was), in a judgment which has never been questioned in a higher court, held that the Section 42 process is Human Rights Act compatible. And in my judgment he was plainly right to do so.

Dr Vaidya next complains that the Attorney General, as he put it, has no business to carry the can for the General Medical Council, that in making this application the Attorney is taking sides in the long-running dispute between Dr Vaidya and his professional regulator and that is not something which a law officer should do. I cannot accept this submission. If it were open to private citizens, regulatory bodies or anybody else other than the Law Officers to invoke the Section 42 jurisdiction, I am quite sure the General Medical Council would have done so long ago. It is only the Attorney General or the Solicitor General who can authorise such proceedings. In doing so, the Attorney is not taking sides between the General Medical Council and Dr Vaidya. He is simply setting in motion a statutory procedure which enables this court to consider whether the respondent has habitually, persistently and without reasonable cause done any of the acts set out in Section 42 (1).

Dr Vaidya similarly denies that the effect of his litigiousness has been to waste public money. The General Medical Council, he argues, is not to be equated with the State and it does not spend taxpayers' money; it spends the money of the doctors regulated by it. Although waste of public money was a convenient shorthand for counsel, the section 42 jurisdiction is not simply a question of taxpayers' money. Part of its underlying rationale is to prevent unreasonable use of the scarce and valuable commodity of court time, including tribunal time, because the more that vexatious cases are brought or vexatious applications are made, the longer meritorious litigants have to wait for their cases to be heard. In any event, the cost to the private or, in this case, regulatory body litigant of repeated vexatious applications is always a significant factor.

In Attorney General v Covey [2001] EWCA Civ 254, Lord Woolf CJ said that the court should take into account the cumulative effect of the claimant's activities both against the individuals who are drawn into the proceedings and on the administration of justice generally.

Some of Dr Vaidya's points were better than others. I have set out what I consider to be the principal points which he raised. An illustration of a bad point in my view, and I will only give one, was his allegation - and I am sure he has convinced himself that it is correct - that an order made against him in 2010 was a forgery. On 16 July 2010, Sir Charles Gray (sitting as a judge of the Queen's Bench Division) made a General Civil Restraint Order against Dr Vaidya. The order, as drawn up and sealed with the court stamp dated 16 July 2010, contains six substantive paragraphs after the recitals, of which paragraph 1 is the restraint order:

"It is ordered that the defendant be restrained from issuing any claim or making any application in the High Court or any County Court without first obtaining the permission of Sir Charles Gray or, if unavailable, a judge of the High Court."

On 26 July 2010 a document was drawn up (page 95 of the applicant's bundle) which is headed "General Civil Restraint Order" and is on a printed Form N19B. It reproduces paragraph 1 of the order stamped on 26 July and endorses it with a penal notice. I simply do not see that the allegation of forgery has any merit whatever but that is not to my mind an important point although it did feature quite prominently in part of Dr Vaidya's submissions.

I am entirely satisfied that Dr Vaidya has habitually and persistently and without reasonable grounds instituted vexatious civil proceedings and made vexatious applications in civil proceedings, including in each case Employment Tribunal proceedings. I am further satisfied that it is a case in which we should exercise our discretion to make a Section 42 order.

I turn finally to the question of whether that Section 42 order should extend to preventing Dr Vaidya from acting as a representative or McKenzie Friend in any proceedings in any court of law or tribunal. Dr Vaidya argued that such an order would impede other citizens' access to justice although he did say that in the last two to three years he has not acted as a representative or McKenzie Friend. In my view, when an order is made under Section 42 against a vexatious litigant it should be standard practice to include a paragraph prohibiting the vexatious litigant from acting as a representative or McKenzie Friend. If a litigant is to be prevented without leave of the court from bringing cases himself, the case must surely be even stronger to prevent him from appearing as a representative.

Accordingly, I would make an order in the terms sought by the Attorney General.

MR JUSTICE GOSS: I agree.

(Post judgement discussion on separate transcript)