HER MAJESTY'S ATTORNEY-GENERAL v MR G WHEEN [2000] UKEAT 1301_99_1804

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1301_99_1804Case No Appeal No. EAT/1301/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HER MAJESTY'S ATTORNEY-GENERALAPPELLANTMR G WHEENRESPONDENT
Before
Mr Justice LindsayDate 18 April 2000
[1]APPEARANCES For the Appellant MR R JAY QC Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 The Broadway London SW1H 9JS For the Respondent THE RESPONDENT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : We have before us an application by the Attorney General in the matter headed "In the matter of Section 33 of the Industrial Tribunals Act 1996 and "In the matter of Geoffrey Arnold Wheen". The application made by the Attorney General is for a Restriction of Proceedings Order to be made against Mr Wheen. His address is given. The application notes that the affidavit in support of the application was attached. We have seen that affidavit and we have seen also two large bundles of documents which, we are told, have been supplied to Mr Wheen. We have no reason to believe that Mr Wheen was not given adequate notice of today's hearing but he does not attend. The Attorney General appears by Mr Jay QC. It is necessary first to look at the section identified in the heading of the application where it is described as the "Industrial Tribunals Act"; in fact its title has been changed to the " Employment Tribunal Act 1996 " following the general renaming of the Industrial Tribunals to be called Employment Tribunals. Section 33(1) reads:
"(1) If, on an application made by the Attorney General or the Lord Advocate under this section, 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."
We should pause to say that the "Appeal Tribunal" there referred to is this Employment Appeal Tribunal; see section 42. Subsection (2) reads:
"(2) A "restriction of proceedings order" is an order that- (a) no proceedings shall without the leave of the Appeal Tribunal be instituted in any employment tribunal or before the Appeal Tribunal by the person against whom the order is made, (b) any proceedings by him in any employment tribunal or before the Appeal Tribunal before the making of the order shall not be continued by him without the leave of the Appeal Tribunal, and (c) no application (other than one for leave under this section) is to be made by him in any proceedings in any employment tribunal or before the Appeal Tribunal without the leave of the Appeal Tribunal."
Subsection (3):
"(3) A restriction of proceedings order may provide that it is to cease to have effect at the end of a specified period, but otherwise it remains in force indefinitely."
Subsection (4):
"(4) Leave for the institution or continuance of, or for the making of an application in, any proceedings in an employment tribunal or before the Appeal Tribunal by a person who is the subject of a restriction proceedings order shall not be given unless the Appeal Tribunal is satisfied- (a) that the proceedings or application are not an abuse of the process of the tribunal in question, and (b) that there are reasonable grounds for the proceedings or application."
Subsection (5):
"(5) A copy of a restriction of proceedings order shall be published in the London Gazette and the Edinburgh Gazette."
[2]A number of points require brief attention. In the expression "the Appeal Tribunal is satisfied that that a person has habitually and persistently", the word has indicates that it is, in effect, no conclusive defence that the conduct complained of has stopped, although plainly that would be relevant to the exercise of the discretion. The words "habitually and persistently" obviously indicate that some degree of repetition over a period is necessary to be shown. The words "without any reasonable ground" perhaps explain themselves. "Instituted" indicates that what one is looking at is proceedings begun by the person whose conduct is in question. As to "instituted vexatious proceedings" in section 33(1)(a) and (b), we have the benefit of recent guidance in the Divisional Court of the Queen's Bench in a judgment of the Lord Chief Justice, Lord Bingham, in Attorney-General v Paul Evan John Barker , at paragraph 19 of that decision. We are looking at the transcript of the 16th February 2000; the matter is not yet reported. In paragraph 19 one finds: "19. … "Vexatious" is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment 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. …"[3]The "may" in section 33(1), in the wider expression "the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order" plainly indicates that a discretion is there to be exercised. It has to be exercised judicially, but otherwise there are no further fetters on the exercise of the discretion than are posed by the conditions under which the discretion arises in the first place.[4]A number of the cases to which we have been referred and which Mr Wheen has brought claim that he has been discriminated against. It is not entirely clear what kind of discrimination Mr Wheen would be in a position to claim. So far as Mr Jay can tell us, Mr Wheen is white and married and not disabled. Of course that does not preclude him being discriminated against but we have in mind that that is his condition.[5]The timetable is as follows. The application for a restriction of proceedings order is dated 22nd October 1999. On the same day, there was sworn the affidavit of Mr Lutterodt of the Treasury Solicitor's Office. On 3rd December 1999 Mr Wheen made response and we have that amongst our papers. On 23rd March 2000 Mr Jay's skeleton argument for today's hearing was prepared and, as we understand it, it has been sent to Mr Wheen. On 11th April 2000 Mr Wheen's supplied his skeleton argument of today. Unfortunately, the version which he sent to the Employment Appeal Tribunal had only the odd page numbers - 1, 3, 5 and 7 - but we have been supplied this morning by Mr Jay with the full version which gives all pages.[6]There are a number of points to be made in answer to issues that Mr Wheen has sought to identify in his skeleton. We do not propose to deal with every point that Mr Wheen raises, but some are worth mentioning.(1) Mr Wheen complains that the Employment Appeal Tribunal hears appeals and that this is not an appeal. There would be force in that if it was not the case that the statute had carefully conferred this jurisdiction on the Employment Appeal Tribunal. It has, in this regard, an original jurisdiction, see also section 21(4)(b).(2) Mr Wheen complains that the EAT itself under Morison J, President, had taken up such a position in favour of the making of restriction of proceedings order against him that such predisposition is bound to colour the views of Morison J's successors and the successors of those whose sat with Morison J. We find it quite possible to put wholly out of mind the views taken earlier by the other earlier constitution of the EAT that previously commented on Mr Wheen's position. Indeed, speaking for myself, by chance I did not read the earlier judgment of the EAT and today Mr Jay was content not to draw it further to our attention.(3) Mr Wheen complains that as (he says) he is taking proceedings against the EAT, the EAT is disentitled to rule under section 33 during the currency of those proceedings. Section 33 makes no such provision. It would, indeed, be remarkable if, by way of the simple expedient of issuing yet further proceedings, a litigant who was at risk under section 33 could procure the disapplication of a section which, as at least part of its object, has the object of the barring of further proceedings.(4) Mr Wheen asserts that because he takes the view that section 33 or its exercise is in breach of Human Rights legislation or of Community law, and because he therefore challenges its legality and validity, the section cannot be exercised against him but ought, for the time being, to be suspended. We take a different view. If a challenge to section 33's validity raising truly arguable points of law had been laid before us we might have taken a different view but it cannot be enough to suspend the application of the section merely to assert that Human Rights or Community law make the section invalid. Indeed, there is authority in Attorney General v Price [1997] COD 250 , to a summary of which we have been taken, that indicates that there is no such breach involved in section 33 in itself.(5) Mr Wheen complains that there has been substantial delay by the EAT and by the Attorney General but there is no suggestion that he has suffered prejudice thereby. Delay, if anything, would have harmed the Attorney General's case but we see no way in which the delay has harmed Mr Wheen and we attach no importance to this allegation.(6) Mr Wheen complains that the pressure put upon him in relation to documents has been such that he has been unable adequately to respond to the Attorney General's case. It is not a complaint that sits easily with his complaint about delay but in any event the chronology indicates that it has no substance.(7) Mr Wheen then relies on the well known case in Compagnie Financiere du Pacifique v Peruvian Guano Co [1882] ,as to discovery. He complains that discovery here has been inadequate. Strictly speaking, the Peruvian Guano case has no direct application because in neither the Employment Tribunal nor in the Employment Appeal Tribunal is discovery automatic. It has to be the subject of a separate application and a separate order. Mr Wheen has seen all the papers which the Attorney General relies upon, and if he had taken the view that it was not possible, on the basis of those papers alone, fairly to dispose of the case and that there were papers open to the Attorney General which had been withheld, then it would have been for him to have applied for some specific order for discovery and to have made a case that whatever papers he then sought to be added were necessary fairly to dispose of the case. As far as we know, there has been no such application made by Mr Wheen and he thereby is disabled from complaining about inadequate discovery.(8) Mr Wheen takes the point that in a number of the cases complained of an order was made by the relevant tribunal under Rule 7(4) of the Employment Tribunals Rules of Procedure 1993, which says this:
"(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter."
Sub-rule (5) say this:
"No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit."
Mr Wheen takes the point that every time an order has been made against him under rule 7(4) he has not sought to take the case further. Whereas, he says, a truly vexatious litigant would have pressed on regardless. But what is borne against him, and which is something which the making of unappealed orders under rule 7(4) indicates, is his frequent launching of proceedings which have no reasonable prospect of success. True it is that it could be said to be even more vexatious if he had paid the deposit and had gone ahead and had lost but that does not mean that there is no vice in the launching of the proceedings in the first place, given that they are ruled on as having had no reasonable prospect of success. (9) Dealing with another point which Mr Wheen raises, it is established on the authorities that where earlier proceedings have been dismissed on the ground that they have, for example, had no reasonable prospect of success, or that they were abusive, or that they were frivolous or vexatious, where those earlier decisions have not been appealed against, the litigant whose conduct is in question cannot reopen those unappealed decisions. Their holdings as to the nature of the conduct or the nature of proceedings must be held to be correct. In that regard, Mr Jay has taken us to Attorney General v Jones [1990] 1WLR 859 CA , at 863, where Lord Donaldson MR says:
"The fifth and last issue of law arose out of Mr Jones' wish to challenge the conclusion of various judges in the underlying proceedings that his conduct in those particular proceedings had been vexatious or had involved an abuse of the process of the court. We ruled that he was not free to do so. If any such conclusion was, or was thought by Mr Jones to be, erroneous, the remedy was to appeal in those proceedings … But if that was not done, the decision must stand and is capable of forming the basis for the court being satisfied upon an application under section 42 that Mr Jones had habitually and persistently and without any reasonable ground acted in the manner referred to in subsection 1( a ) or ( b )."
That reference to section 42 is, of course, to the precursor applicable in ordinary civil proceedings and which has provided a model for section 33. Mr Wheen could have appealed against the various decisions and so far as he has not or the appeals have failed. Thus the decision and its reasoning can be relied upon by the Attorney General in support of the assertion that there have here been repeated vexatious or frivolous proceedings or ones suffering from other abusive shortcomings, as appropriate. (10) A feature which distinguishes Mr Wheen's case from many other cases against allegedly vexatious litigants is that he does not, in general, repeatedly sue the very same respondent, nor does he obsessively, as is not uncommon, return to the one event or the one series of events. We bear that in mind. But the Act applies whether or not one sees the same respondent recurring; section 33(1)(a) expressly so provides and there is no restriction, either, that it is only the same events that have to be relied upon. Indeed, if the Act contemplates, as it does, that there can be different respondents, it is not unlikely that there will be different events being relied upon.[7]We have looked carefully at Mr Lutterodt's affidavit. It sets out, in particular, a schedule of Mr Wheen's actions in the Tribunals. It gives in each case the date the proceeding commenced, the Tribunal before which the proceedings were taken, the action number, the parties, the nature of the claim and the result. There are 13 separate headings in the schedule and, in a number of those cases, any one number will lead to more than one step in the proceedings, for example, when there is a proceeding, then an appeal dismissed and leave to appeal dismissed and that sort of thing. But there are 13 separate headings of proceedings which Mr Wheen has instituted and which have failed and which have been marked, in relation to that failure, with comments upon their being frivolous or vexatious in some cases. Some are cases which have been the subject of orders under rule 7(4) as falling within the description of the cases within that rule and none of them represents any success on Mr Wheen's part. We do not think it is necessary to go through the whole schedule in any detail, but we do conclude that Mr Wheen is a person who has habitually and persistently and without reasonable ground instituted vexatious proceedings, attributing to the expression "vexatious proceedings" the meaning that we cited above from Lord Bingham's judgment in the Barker case. He has thus fallen foul of section 33(1)(a) and, in relation to his appeals to the Employment Appeal Tribunal, to section 33(1)(b). It is therefore open to us to exercise the discretion under section 33.[8]In relation to that exercise, there are a number of points which we bear in mind. Mr Wheen has not, as it seems, launched wholly fresh proceedings since April 1998, although there is an appeal to the Employment Appeal Tribunal in 1999 that was struck out (simply, as it seems, on a time basis). We may be generous to Mr Wheen in saying that he has launched no new proceedings since April 1998 but we have, in any event, no explanation of why there are no proceedings after that date. The only reason we can think of is that he has been at pains not to underline the strength of the Attorney General's case against him. If that is the only reason why there have been no more recent proceedings, then it really does not give any assurance as to the future conduct of Mr Wheen. He has not attended to tell us why it is that there has been an interval, and we do not feel able to regard it as a point of any real strength in his favour that there have been no truly recent proceedings. Unlike the position as it was in the Barker case, we have had no indication from him that he will not launch proceedings in the future, nor any suggested mechanism (for example, that he would not launch proceedings unless he had previously received favourable advice from solicitors or Counsel or something along those lines) that he might have been willing to impose upon himself. We do not suggest that it would be reasonable to demand that from him or that it would have sufficed to avoid an order under section 33 but we do make the point that he offers nothing of any such kind at all as to his future conduct.[9]We have mentioned that many of his claims involve discrimination. Discrimination is generated or can often be generated merely by the personal characteristics of the individual concerned. It may fairly be said that for that reason facts justifying the launching of a claim for discrimination are more likely to recur to an individual than are, for example, the facts of an ordinary civil cause of action. Such a thought leads to us to be particularly cautious in relation to section 33 and its application to discrimination cases. But 13 failed sets of proceedings as explained in Mr Lutterodt's affidavit do represent a substantial argument that there have here been vexatious proceedings launched not upon reasonable grounds. Moreover, if an order is made under section 33, then, as its own terms indicate, that is no total bar to Mr Wheen in the sense that he would still be able to ask for leave to proceed in the way that the section contemplates. If he is able to show to the Appeal Tribunal, to whom he makes application, that despite the making of the section 33 order, some situation has arisen which truly justifies proceedings going forward upon reasonable grounds, then there is no reason why he should contemplate not being given leave to proceed.[10]We bear in mind the unusual feature of discrimination which we have mentioned and that it can reoccur and be vicious, but we do not see that, that of itself or in combination with other features relied upon by Mr Wheen, is any substantial force against the exercise of the discretion in favour of the Attorney General's application.[11]Further, in favour of the Attorney General's application at the discretionary level, we have to recollect that one object of section 33, as is emphasised in the Barker case, on similar legislation, is to protect respondents from the cost and anxiety of proceedings which are vexatious. But we would wish to add that another object is to be borne in mind and that is this: in the very busy Employment Tribunals up and down the country and in the very busy Employment Appeal Tribunal, giving time to Mr Wheen's unnecessary proceedings, proceedings without reasonable grounds, proceedings with no real prospect of success, is to deny that very same time to parties who have real grievances. The effect is that those with real grievances have their hearings delayed. That is a matter we are entitled to take into account and it further inclines us to exercise the discretion in favour of the Attorney General's application. Indeed, considering as best we can the matters raised not only on behalf of the Attorney General by Mr Jay but also those contrary points raised in Mr Wheen's skeleton argument, we see this to be a proper case for an order under section 33 to be made against Mr Wheen.[12]We make an order under section 33 - a Restriction of Proceedings Order - against Mr Wheen. It is to be indefinite. We draw Mr Wheen's attention to section 33(4). We notice that he has put in a written application for his costs against the Attorney General; we reject that application. He makes an application for leave to appeal to the Court of Appeal and, notwithstanding, that this is the first case of its kind, as far as we understand the position, we do not see it as an appropriate case for the grant of leave to appeal to the Court of Appeal. If Mr Wheen wishes to get that permission then he must apply to the Court of Appeal direct.