United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is an appeal by Miss Douglas against a reserved decision of an Employment Tribunal sitting at Liverpool under the chairmanship of Mr M Homfray-Davies striking out three separate Originating Applications which she presented to the tribunal on 11th March, 16th March and 27th April 1999. They were case numbers 2100573/99, 2100574/99 and 2102572/99. That decision, with extended reasons, was promulgated on 2nd February 2000.

1. We are indebted to the Employment Tribunal for its clear and detailed exposition of this matter. In summary, the appellant, who is black, first enrolled on the College of Law's part-time LPC course in London in January 1995. She subsequently withdrew from that course and recommenced the course at the College's Chester branch in September 1995. The difficulty has been that she has been unable to pass all the necessary examinations. Instead of achieving her desire to become a qualified solicitor in the conventional way, that is by passing examinations in an extremely competitive field, she has resorted to litigation in an attempt, so the Employment Tribunal found, to harass and bludgeon the College into granting her preferential treatment in the form of allowing her a pass, or carrying out an assessment which obviated the need for her to pass the examinations.
2. That litigation has taken the form of applications to the Employment Tribunal, County Court proceedings and application for judicial review. When that has failed she has taken appeals to the EAT and to the Court of Appeal.
3. At every stage, she complains, she has been denied justice. Everyone, from the Lord Chancellor and the Master of the Rolls down, is biased against her. She has been denied a fair and impartial hearing. Her human rights have been infringed.
4. We have taken one step backwards to remind ourselves of our function. Our jurisdiction is limited to correcting errors of law by Employment Tribunals. Thus the question for us is, at this preliminary hearing, has the appellant shown any arguable point or points of law which might give rise to a finding at a full inter partes appeal hearing that the tribunal erred in law in striking out these present claims of racial discrimination, victimisation and detriment allegedly suffered by the appellant under rule 13(2)(d) of the Employment Tribunal Rules of Procedure 1993 which provides:

"(2) A tribunal may-

…

(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out … any originating application … or anything in such application … on the grounds that it is scandalous, frivolous or vexatious." [We omit irrelevant words]

5. We shall not repeat the history which is fully set out by the Employment Tribunal. Instead, we shall focus on the points of law which Miss Douglas seeks to raise both in her written submission and in oral submissions before us today. They are as follows:

(1) She submits that the tribunal Chairman failed to discharge his professional duty in that he did not, on the face of the tribunal's reasons for which he was responsible, consider all relevant case law and statutory provisions which bear on her substantive complaints. By way of example, she complains that the Chairman makes no reference to the case of Rovenska v General Medical Council [1997] IRLR 367 CA. That was a case concerned with the meaning of a continuing act for the purpose of deciding questions of limitation under s.68(7)(b) of the 1976 Act. It seems to us that there was no necessity for the tribunal to refer to that statutory provision nor the case of Rovenska in circumstances where what they were considering was not whether or not the claim was time-barred but whether or not it ought to be struck out under rule 13(2)(d). It is no part of the tribunal's decision that these claims fail for limitation reasons.

(2) She was not given an opportunity to show cause under rule 13(3). That argument, it seems to us, is bound to fail. First, she was given notice for the purpose of rule 13(3) in advance of the hearing before the Homfray-Davies tribunal at a directions hearing held before another Chairman, Mr D Reed, on 24th June 1999. Secondly, she was plainly given an opportunity orally at the two day hearing before the Homfray-Davies tribunal to show cause why each of these three Originating Applications should not be struck out.

(3) She complains that no determination was made on the Respondents' contention that the doctrine of res judicata applied and prevented her from pursuing these Originating Applications. That, it seems to us, is immaterial in circumstances where the tribunal struck out the Originating Applications under rule 13(2)(d). There was, accordingly, no necessity to decide the alternative ground relied upon by the Respondents, that of res judicata.

(4) She submits that if res judicata does not apply, can these Originating Applications be properly struck out as an abuse of process? We are satisfied that they can. Miss Douglas refers to the judgment of Slynn J, as he then was, in Mulvaney v London Transport Executive [1981] ICR 351. Again, she complains that that case was not specifically referred to in the tribunal's reasons. We have considered it. It is correct to say that in that case the EAT set aside an Industrial Tribunal order striking out a second Originating Application based on the same facts as an earlier Originating Application which had been withdrawn by Mr Mulvaney for fear of a costs order being made against him (incidentally, Miss Douglas' explanation for withdrawing an earlier Originating Application in Case No. 2102840/98 brought against the Law Society following a letter giving notice that an application for costs under rule 12 of the Employment Tribunal Rules of Procedure would be made on behalf of the Respondent by their solicitors in a letter dated 10th February 1999).

However, in the course of his judgment in Mulvaney at page 355B, Slynn J allowed that there may be cases where the case is so misconceived that it ought not to be allowed to continue.

In Ashmore v British Coal [1990] ICR 485 CA, Stuart-Smith LJ said:

"A litigant has a right to have his claim litigated, provided it is not frivolous, vexatious or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case, the categories are not closed and considerations of public policy and the interests of justice may be very material."

In our judgment, the history of this matter, as recounted by the Employment Tribunal in their reasons, plainly entitled them to conclude that these three Originating Applications were properly to be described as an abuse of process, designed to harass the Respondents into submission rather than to obtain a favourable judicial determination on the merits of the claims. In these circumstances, we can see no grounds for interfering with the tribunal's decision.

(5) Miss Douglas complains that the case was decided without the tribunal hearing evidence. It is correct to say that no evidence was received, however the history of the matter, as fully set out in the tribunal's reasons, was sufficient to entitle the tribunal to conclude that her purpose in bringing the actions was to harass the respondents. This is a classic abuse of process case.

(6) The Chairman failed to take into account the case of Nagarajan v London Regional Transport [1999] IRLR 572, a case on the correct approach to be taken in determining whether or not a complainant has been victimised under the provisions of the 1976 Act. We make the same observation as before, it seems to us that the real question for the Employment Tribunal was what was the purpose of the appellant bringing these complaints. It was not necessary to set out the law or the underlying statutory provisions on which her claims were said to based.

(7) At the directions hearing in June 1999, Mr Reed did not order her to pay a deposit under the provisions of rule 7(4) of the Employment Tribunal Rules of Procedure. His reasons for not ordering her to pay a deposit are expressed in this way:

"I concluded that, on the basis of the documents I was entitled to view, (namely written representations in the pleadings) and on the oral representations made to me, it was impossible for me to conclude that the applicant's claim was sufficiently hopeless to warrant a deposit being ordered."

We particularly emphasise the limited scope of the enquiry which the Chairman was obliged to undertake at that stage, that is, simply to consider the forms IT1 and IT3 and submissions. The difference when the matter came before the Homfray-Davies tribunal is that the whole of the history was put before that Employment Tribunal, allowing them to form a view, in our judgment permissibly, as to whether or not the application under rule 13(2)(d) succeeded or not.

(8) She has referred us to one page in the transcript of a judgment given by Henry LJ in the Court of Appeal, in her appeal in the County Court proceedings. She draws particular attention to this passage, where his Lordship said:

"I do not place reliance on the judge's decision that the Claimant was out of time in her complaints about the College's allegedly discriminatory rejection of her applications. It is at least arguable that he was wrong."

We have only been provided with that one page in the transcript and therefore we have not seen the context in which that remark is made. What we are told is that the appeal was dismissed and that is a matter which is to be further investigated so the appellant tells us. At the moment we cannot see what possible relevance that has to the matters in issue in the appeal before us.

(9) The appellant complains that the Homfray-Davies tribunal indicated at the end of their reasons their intention to forward the papers to the President of Employment Tribunals, Judge John Prophet, with a view to his considering whether steps ought to be taken to have her declared a vexatious litigant. We see from a letter from Judge Prophet to the appellant dated 6th April 2000 that at that stage he decided not to take any further action on the reference by the Liverpool Employment Tribunal, but gave notice that if further frivolous or vexatious applications in respect of matters already dealt with were made by the appellant, then he would be obliged to reconsider that decision.

The short answer to that complaint, so far as we are concerned, is that an indication by an Employment Tribunal of this nature is not a decision or order against which an appeal lies to the EAT under s.21 of the Employment Tribunals Act 1996. We would add, as we indicated to Miss Douglas in the course of argument, that the procedure for applications to the EAT to make a restriction of proceedings order is contained in s.33 of the Act. Such application is made by the Attorney-General, as in High Court proceedings. So far as we are aware no such application has yet been made in respect of this appellant. The fact that no such application has been made, does not, of course, indicate that the circumstances of these three cases, the subject matter of this appeal, were not an abuse of process. We find that the tribunal were entitled to conclude that they were.

6. In all these circumstances, we have concluded that this appeal raises no arguable point or points of law and in those circumstances it must be dismissed. Finally, we dismiss Miss Douglas' application for leave to appeal to the Court of Appeal. Such further appeal has no real prospect of success for the reasons given.