United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R JAY The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


JUDGE CLARK

1. Section 42 Supreme Court Act 1981 provides that the High Court may, on an application made by the Attorney General, make a civil proceedings Order against a person whom it is satisfied has habitually and persistently and without reasonable ground instituted vexatious civil proceedings or made vexatious applications in any civil proceedings. The procedure governing such applications is contained in CPR schedule 1. Order 94 r. 15(1).
2. A similar provision dealing with vexatious litigants before the Employment Tribunal's or the Employment Appeal Tribunal is contained in Section 33 of the Employment Tribunals Act 1996.
3. We have before us such an application made by the Attorney General in respect of the Respondent, Mrs Rosalind Iris King.
4. So far as we are aware, and this has been confirmed by Mr Jay QC who appears before us today on behalf of the Attorney General, this is only the second application made by him under the Section 33 procedure to be heard by the Employment Appeal Tribunal. We have read the judgment handed down by Lindsay J, President in the first case of Attorney General –v- Wheen (EAT 1301/99. 18 April 2000. Unreported).
5. The prerequisites for the making of a restriction of proceedings Order under Section 33 are that:

(1) the application is made by the Attorney General in writing and accompanied by an affidavit in support

(2) that the application is served on the Respondent, who must enter an appearance within 14 days, together with an affidavit in support

(3) that the Respondent has been heard on the application or been given an opportunity to be heard

(4) the Employment Appeal Tribunal is satisfied that the Respondent has habitually and persistently and without any reasonable ground, instituted vexatious proceedings, whether in an Employment Tribunal or before the Employment Appeal Tribunal, and whether against the same or against different persons, or made vexatious applications in any proceedings in the Employment Tribunal or Employment Appeal Tribunal.

6. These proceedings were commenced by the Attorney General by an application in writing dated 10 January 2000, support by an affidavit sworn on that date by Rodger Lutterodt, a solicitor employed by the Treasury Solicitors Department.
7. The application is resisted by the Respondent, who has filed an affidavit sworn on 20 April 2000, and a detailed skeleton argument responding to that prepared by Mr Robert Jay. The Respondent had indicated in correspondence that she does not intend to appear at this hearing , of which she has had notice, due to the expense involved in travelling to London and the consequences of an injury to her left leg. We are satisfied that she has had an opportunity to be heard and we have taken into account her written representations, to which we shall return.
8. The basis of the application, as it appears from the affidavit of Mr Lutterodt and the Schedule annexed thereto and bundle of documents which he produces, is as follows.
9. The Respondent was employed by Dorset County Council (DCC) as the manager of a Day Care Centre for the mentally ill until her dismissal on the ground of redundancy on 1 May 1993.
10. On 26 July 1993 the Respondent presented her first Originating application to the Employment Tribunal naming DDC as the Respondent. She complained of constructive dismissal, unfair dismissal, discrimination, and breach of redundancy rules and delays in hearing internal appeals. The claim was resisted.
11. That complaint was heard by an Employment Tribunal sitting at Southampton between 1 – 6 June 1994. At the end of the hearing the Employment Tribunal orally announced its decision. The complaint failed. However, it then transpired that the Employment Tribunal was improperly constituted; both lay members came from the employer's side of industry. Thus, instead of promulgating a decision, the Chairman alone held a Pre-Hearing Review at which he ordered the Respondent to pay a deposit of £50 as a condition of her being permitted to proceed with her complaint, the Chairman taking the view for the purpose of Rule 7 of the Employment Tribunals Rules of Procedure that her complaint had no reasonable prospect of success. On 6 October 1994 the Respondent withdrew that complaint. It was then dismissed on withdrawal by an Order of the Employment Tribunal of that date.
12. Thereafter the Respondent made 12 further Originating Applications to the Employment Tribunal, naming as Respondent a permutation of DCC, Bournemouth University and her Trade Union, Unison. Each of those complaints was either withdrawn or struck out. Appeals to the Employment Appeal Tribunal and applications thereafter for leave to appeal to Court of Appeal were all dismissed.
13. Her last appeal to the Employment Appeal Tribunal was heard by a division over which I presided sitting on 5 October 1998 (EAT 234/98). The appeal was dismissed.
14. I have considered, in the absence of the Respondent today, whether, having sat on that occasion, I should recuse myself from sitting, albeit with different lay members, on the present application. I have raised the point with Mr Jay, who does not invite me to do so. In this connection I have also considered the guidance of Court of Appeal to be found in Locabail (UK) Ltd –v- Bayfield and associated cases (2000) IRLR 96. In particular, the observation of the Court (paragraph 25) that previous judicial decisions will not normally give rise to a real danger of bias.
15. In the particular circumstances of this case I bear in mind the observation contained in paragraph 73(3) of the Respondent's skeleton argument that she would later refer to the Employment Appeal Tribunal's reasons for dismissing her appeal (234/98) and a complaint of bias.
16. Having considered what follows, and in particular the grounds on which she sought leave to appeal to the Court of Appeal, set out at paragraph 75(1) of her skeleton argument, it seems to me there was no complaint of bias by the division on which I sat, rather error of law. That application was refused by the Court of Appeal on 18 January 1990.
17. In these circumstances I am satisfied that, even taking into account that this is an application to have the Respondent declared a vexatious litigant, there are no proper grounds for my standing down.
18. In answer to this application the Respondent makes the following points.

(1) She submits that her conduct cannot properly be characterised as vexatious. In our judgment it can. We are satisfied that by persistently launching fresh proceedings relating back to her original dismissal and its alleged effects, leading to a complaint of sex discrimination in relation to her pension position, the Applicant has sought to harass the various respondents to those applications.

(2) It is not open to the Respondent to challenge, as she has sought to do in her skeleton argument, the individual findings by different Employment Tribunals that her proceedings were vexatious, see Attorney General –v- Jones (1990) 1 WLR 859.

(3) It is suggested that the Attorney General has only brought this application because the Respondent had made complaint to the European Court of Human Rights. That is a misrepresentation of paragraph 13 of Mr Jay's skeleton argument. What is there said is that the fact that she made such a complaint may mean that she will seek to issue further Employment Tribunal proceedings.

(4) The Respondent contends that she has never had her claims heard and determined. That is a denial of her right to a fair hearing before an impartial tribunal contrary to Article 6(1) European Convention on Human Rights. That submission overlooks, it seems to us, those applications which were dismissed on withdrawal by the Respondent herself. We are not satisfied that she has shown any breach of Article 6. Further, we are persuaded by Mr Jay, on the authority of Attorney General –v- Price (1997) COD 250, that to make a restriction of proceedings order in this case would not of itself constitute a breach of Article 6(1).

19. Having considered and rejected the arguments put forward by the Respondent we are quite satisfied, on all the material before us, that we should exercise our discretion in favour of granting the Order sought by the Attorney General. There will be an indefinite restriction of proceedings order made against Mrs King. She may only institute further proceedings before the Employment Tribunal or Employment Appeal Tribunal with leave of the Employment Appeal Tribunal.