Application No. UKEAT/0556/11/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
3 May 2012
Before
THE
HONOURABLE MR JUSTICE WILKIE
MS V BRANNEY
MR P GAMMON MBE
HER
MAJESTY’S ATTORNEY GENERAL APPLICANT
MR
A BENTLEY RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Restriction of proceedings
order/vexatious litigant
Restriction of proceedings order applied for and granted.
THE HONOURABLE MR
JUSTICE WILKIE
1.
On 10 August 2011 the Solicitor General authorised the making
of an application by the Attorney General for a restriction of proceedings
order pursuant to section 33 of the Employment Tribunals Act 1996
(ETA) against Anthony Bentley. On 20 October 2011 that
application was made seeking an order in the following terms:
(1) No
proceedings shall, without the permission of the Employment Appeal Tribunal, be
instituted in any Employment Tribunal or before the Employment Appeal Tribunal
by Mr Anthony Bentley, whether by himself or through another.
(2) Any
proceedings instituted by Mr Anthony Bentley in any Employment
Tribunal or before the Employment Appeal Tribunal before the making of this
order shall not be continued by him without the permission of the Employment
Appeal Tribunal.
(3) No
application other than an application for permission pursuant to section 33
of the ETA is to be made by Mr Anthony Bentley, whether by himself or
through another, in any proceedings in any Employment Tribunal or before the
Employment Appeal Tribunal without the permission of the Employment Appeal
Tribunal. The application as made did not at the time specify whether the
order should remain in force indefinitely or for a specified period.
2.
Mr Gott QC, who has appeared this morning, has applied that
the order should be of indefinite duration. The application was considered by
the then President of the Employment Appeal Tribunal, Underhill J, on
1 November 2011 for the making of directions for the hearing of the
application. Within the directions that he made on that occasion he directed
that:
“Within 28 days of the seal date of this Order the Respondent
must lodge with the Employment Appeal Tribunal and serve on the Applicant a Notice
of Appearance accompanied by an affidavit in support and in response to that of
Ms Catherine Edwards served by the Applicant.”
3.
The order was sealed on 2 November 2011. There was no
response by Mr Bentley as directed, despite initially having the terms of
the direction communicated by letter dated 2 November 2011 and a follow‑up
letter on 15 December 2011. Accordingly, by an order dated
29 December 2011 issued by the Deputy Registrar in chambers, it
was ordered that:
“[…] unless a Notice of Appearance and Affidavit is lodged
within 7 days of the seal date of this Order together with an application for
an extension of time in which to do so the Respondent will be debarred from
taking further part in this Application for a Restriction of Proceedings Order.”
4.
By a further order dated 9 January 2012 the
Deputy Registrar, upon a failure of the Respondent to file a notice of
appearance and affidavit in accordance with the rules, and upon the failure of
the Respondent to reply to the Employment Appeal Tribunal letters dated
2 November, 15 December and the order dated 29 December 2011,
it was ordered that the Respondent was debarred from taking further part in
this application for a restriction of proceedings order.
5.
The application has been made this morning and has been supported by two
affidavits, each of them made by Catherine Edwards, who is employed as a
caseholder for the Treasury solicitor. Those affidavits are dated,
respectively, 19 October 2011 and 12 April 2012. They
contain a detailed summary of 31 sets of proceedings embarked upon in
Employment Tribunals across the country, including the Bedford, Southampton, London North West, Watford, London Central, Exeter, London South, Sheffield, Bristol and Manchester Employment Tribunals. Mr Bentley, whose given home address is in Bradford, has commenced proceedings in these 31 cases. In a number of those cases he has
named more than one respondent, with the result that at least 44 separate respondents
have been put, by Mr Bentley, to the trouble of having to respond to his claim,
at least in the first instance, by submitting grounds of resistance in the form
of ET3s. Certain of the respondents have been the subject of more than one
application, including Blue Arrow, IFF Research and Bourne Leisure Ltd.
6.
Mr Bentley, in his curriculum vitae, claims to be qualified as a
photographer and to have had a career as an entertainer. The Attorney
General’s case is that he appears to have embarked upon, and then pursued, a
campaign in respect of age discrimination that he has pursued through the
medium of commencing proceedings in the Employment Tribunal. The form of this
activity appears to be that he either applies for positions with respondents,
or informs them that he is available for work, and, when he does not receive
any offer of work, or is not appointed to the relevant position, he then issues
proceedings for age discrimination and, in some cases, disability
discrimination, although there is no indication as to the nature of any
disability. Some of his later applications have also included allegations of
victimisation. The intensity of his activities in this regard is to be
measured from the fact that, within a period of just over two years, between
3 June 2009 and 29 September 2011, he has commenced 29
Employment Tribunal applications. It is of significance that in respect of none
of the 31 applications to the Employment Tribunal has he ever attended any
scheduled hearing. None of his claims have met with any form of success
whatsoever. None of them have gone as far as a full hearing. In respect of 19
of them, they have been dismissed: because they were not actively pursued;
because he failed to attend a listed hearing; because he requested that the
claims be withdrawn; or because he failed to comply with Tribunal orders.
7.
Within the affidavit of Ms Edwards, attached to which are the files
in relation to each and every case, she has referred to, and Mr Gott has
also referred to, certain of the details of particular cases as particular
exemplars of this way of proceeding. There is no need for us to rehearse any
of those details; it is sufficient to say that we are familiar with them,
having perused the documents to the extent that we have indicated.
8.
In respect of 11 of the cases, they were struck out on the basis that
his claim had no reasonable prospect of success and/or that they were
scandalous or vexatious. Once again, Mr Gott has drawn our attention to
certain of the descriptions in the decisions striking them out as involving
vexatiousness. He has been made the subject of costs orders in three of those
cases; in relation to claim 20, he was the subject of a costs order of
£2,000, and in respect of claim 28, he was ordered to pay £500 in costs.
Notwithstanding those costs orders, he seems to have continued to issue
proceedings in the Employment Tribunals regardless.
9.
Unhappily, in some of his responses and written communications with the
Employment Tribunals and/or the Employment Appeal Tribunal, his language has,
on occasions, been somewhat intemperate. He has sought to appeal to the
Employment Appeal Tribunal in respect of five of the cases, but in no case has
his appeal been validly commenced, having regard to the requirements of the EAT
for certain documentation to be provided, and all of his appeals to the
Employment Appeal Tribunal have suffered the fate of no action being taken in
respect of them because his appeals were not accepted as valid.
10.
Section 33 of the Employment Tribunals Act provides in
subsection 1:
“If, on an application by the Attorney General… the Appeal
Tribunal is satisfied that a person has habitually and persistently and without
any reasonable ground—
(a) instituted vexatious proceedings,
whether in an Employment Tribunal or before the Appeal Tribunal, and whether
against the same person or against different persons; or
(b) made vexatious applications in
any proceedings, whether in an Employment Tribunal or before the Appeal
Tribunal,
the Appeal Tribunal may, after hearing the person or giving him
an opportunity of being heard, make a restriction of proceedings order.”
11.
In the present case he has had the opportunity of being heard by virtue
of the directions given by the President to which we have referred, and it is
by his failure to respond, despite being reminded of his requirement to do so,
and having been made the subject of an unless order requiring him to do so on
pain of his being debarred from further participation, that the circumstances
have arisen whereby today we have heard only from the Attorney General.
12.
Our attention has been drawn to the way in which proceedings such as
this, and parallel proceedings in other jurisdictions, have been dealt with as
described in the relevant cases. In H M Attorney General v Barker
[2002] SCR 1, which was dealing with a civil proceedings order under
section 42 of what is now the Senior Court Act 1981,
Bingham CJ, as he then was, said as follows:
“The hallmark of a vexatious proceeding is in my judgment that
it has little or no basis in law (or at least no discernable basis); that,
whatever the intention of the proceedings 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 the
purpose or in a way which is significantly different from the ordinary and
proper use of the court process […].”
13.
The Attorney General contends, and we accept, that this accurately
describes the conduct of Mr Bentley, with his repeated and hopeless claims
in respect of age discrimination. We have regard to the number of his claims,
combined with the complete lack of any merit, such that none have involved any
measure of success. The claims were self‑evidently misconceived and
hopeless such that a competent or professional litigator would never have
sought to raise them at all. Despite being informed that his claims were
vexatious and repeatedly having his claims struck out, he has persisted in his
behaviour, and he shows no signs of being able to temper this activity or any ability
to recognise that he is acting in an abusive and vexatious manner. In the
employment context, the type of behaviour typical of vexatious litigants has
been described by Rimer J, as he then was, in the case of H M Attorney General v Roberts
[2005] All ER (D) 138. At paragraph 6 of his Judgment he said as follows:
“Most cases of allegedly vexatious litigants, as
Lord Bingham there points out [in a reference to Barker], concern
repeated claims or applications in respect of one particular matter by which
the litigant has become obsessed, commonly involving the same defendant or
defendants. In the employment law field this is a less common feature.
Instead, what is commonly seen is the making of repeated applications of a like
time to employment tribunals, usually against different respondents but founded
on the like basis. In this case, the pattern of Mr Roberts’ repeated
applications to employment tribunals is that they allege a discriminatory
refusal to give him a job for which he has applied on the alleged ground of his
trade union membership and connections. The Attorney General knows of at least
24 applications he has made to employment tribunals and, with some exceptions,
the respondents are all different. This feature is, however, no bar to a case
being made out under section 33, as of course section 33(1)(a) makes
plain.”
14.
It is said by the Attorney General that that description aptly fits the
conduct and the patterns of conduct of Mr Bentley: he applies for a job or
for work and alleges age and/or disability discrimination on no basis other
than that he was not successful in his application. Despite his habit of
failing to pursue cases with vigour and failing to attend hearings, with the
result of which his applications in many cases have been struck out on that
ground, he continues to persist in issuing hopeless and vexatious claims. It
is said by the Attorney General, and we accept, that this is an abuse of the
Employment Tribunal system and is precisely the conduct at which section 33
is aimed. In comparison with certain other cases in which such an order has
been made, the scale and the intensity of Mr Bentley’s conduct is, if
anything, in excess of those where a section 33 order has been made. By
way of example, in the case of H M Attorney General v Wheen
[2000] IRLR 461, 13 claims were brought in a period of 9 months by the subject
of that order on the basis of which a section 33 order was made against
him. In the case of H M Attorney General v Kuttappan
UKEAT/0478/05, 33 claims were brought by the subject of that order, but over a
period of 9 years.
15.
It is pointed out by the Attorney General that, as arrangements are at
present, claims can be commenced in the Employment Tribunal with great ease and
at no expense to applicants. The consequence of this is that section 33
entitles the Employment Tribunal system, through the agency of the Employment
Appeal Tribunal, to protect itself, its processes and its public reputation
from being abused in the manner in which those such as Mr Bentley have
chosen to conduct themselves.
16.
In our judgment, it is necessary, both to protect the reputation of the
system and to protect potential respondents, to make the order sought by the
Attorney General pursuant to section 33, which does not absolutely debar
him from engaging in further litigation in the Employment Tribunal system but
which will require him to obtain the permission of the Employment Appeal
Tribunal before doing so. Given that the pattern of his behaviour is not,
apparently, linked to a particular dispute with a particular respondent, which
it might be thought might be limited to a period during which it would be live
and after which it would cease, but has a pattern of repeated applications made
in different Employment Tribunal offices against a large number of different respondents,
each of them making the same claim of age discrimination, it indicates that his
conduct is not such that it will come to a natural end by a specific date.
Therefore, we are persuaded by the Attorney General that the order that we make
shall be an order that shall remain in force indefinitely. Accordingly, this
application succeeds, and we will make the order that is sought in the terms
that it is placed before us.
