HM ATTORNEY GENERAL v MR S B BENNETT [2001] UKEAT 0112_01_0205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0112_01_0205Case No Appeal No. EAT/0112/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HM ATTORNEY GENERALAPPELLANTMR S B BENNETTRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 2 May 2001
[1]APPEARANCES For the Appellant MR WILLIAM HOSKINS (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS For the Respondent MR BENNETT (The Respondent in Person) MR JUSTICE LINDSAY (PRESIDENT) We have here before us an application in the matter HM Attorney General v Mr Stephen Bernard Bennett . The Attorney General seeks a restriction of proceedings order under section 33 of The Employment Rights Act 1996 against Mr Bennett. Before us this afternoon the Attorney General has been represented by Mr William Hoskins. Mr Bennett has not appeared nor is he represented. That position needs a little explanation. The case was fixed some while ago to come on before us today and was listed in the list for today as either to be heard at 12 noon or as not before 12noon. At 1120 this morning my Clerk spoke to Mr Bennett a few moments after Mr Bennett had telephoned in to the Employment Appeal Tribunal and had spoken to Phyllis Murphy at the reception desk. When my Clerk spoke to Mr Bennett, Mr Bennett said he would be late because he was waiting for an ambulance to take his mother to hospital. He said that he would get to the EAT as soon as possible. My Clerk asked if his mother was seriously ill and Mr Bennett replied that it was for an appointment that she going there. Pausing there, that rather suggests that the appointment, presumably being a fixed appointment, could have been foreseen and that some earlier telephone communication or other communication from Mr Bennett should have been received by the EAT, but there was none. My Clerk asked where the hospital was and he was told it was at Mile End. I should say that Mr Bennett's address is in Clapton, East 5 and not that far from Mile End. Mr Bennett asked whether the case would be adjourned. My Clerk said that he could not answer that as only the Judge could and that the Judge was already sitting in Court. Mr Bennett finished by saying that if my Clerk rang him back he would probably be on his way to the hospital. There was no further communication at all from Mr Bennett. My Clerk has added a note that says he has tried telephoning him, about every 10 minutes from 1.30pm onwards. We started the case at about 2.25pm, still having heard nothing. Mr Hoskins was invited to address us on whether we could go ahead in Mr Bennett's absence. He was content to do so. I indicated that a possibility would be that if we were in the Attorney General's favour and therefore minded to make an order, we could make it lie in office to give Mr Hoskins an opportunity to move to set it aside. Certainly we were concerned that the Applicant's side should not be put to the expense and delay of adjourning and coming back to start afresh some other day. It might be noted that in the course of going through the history of the case we have noted at least one other occasion on which Mr Bennett has failed to attend and has indicated that the reason was his elderly mother's ill health. Of course, that may be true, but that earlier occasion should have drawn to his attention the need, as early as possible, to communicate with the Court or Tribunal before which he should have appeared and to keep in contact in a manner in which, unfortunately, here he has not. So with that background we go ahead in his absence.[2]The case is brought under section 33 of The Employment Tribunals Act 1996. Section 33(1) provides:
"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 grounds – (a) instituted vexatious proceedings, whether in an [employment tribunal] or before he Appeal, 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."
Sub section (2) defines a 'restriction of proceedings order'. We bear it in mind; we do not think it think it necessary fully to set out (2)(a), (b) and (c). Sub section (3) provides for the duration of any order made; should it be limited, or should it otherwise remain in force indefinitely? Sub section (4) deals with the consequences if an order is made; again we have it in mind but do not think it necessary to set it out.[3]Two chief questions therefore arise for us. Firstly, are we satisfied that Mr Bennett has habitually and persistently and without any reasonable ground instituted vexatious proceedings, whether in the Employment Tribunal or in the Employment Appeal Tribunal, or that, in such a manner, he has made vexatious applications in any Employment Tribunal or Employment Appeal Tribunal proceedings? That is the first broad question. Secondly, if that is so, then ought we, in our discretion thus arising, to make a restricted proceedings order and, if so, whether for a period only or indefinitely?[4]We have had our attention drawn to Attorney General v Wheen at the Employment Appeal Tribunal on 18 April 2000, which we understand to have been the first case of its kind to come before the Employment Appeal Tribunal, and also to the report of that decision having been upheld in the Court of Appeal on 7 December 2000. We respectfully adopt the definition of vexatious proceedings used by Lord Bingham, Lord Chief Justice in Attorney General v Paul Evan John Barker on 16 February 2000, which was referred to in Wheen both at the Employment Appeal Tribunal and the Court of Appeal level. So far as concerns the manner in which it was quoted at the Employment Appeal Tribunal, it was as follows: "…….. "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 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 …." A little while ago, the message came through in the course of our delivering our judgment that Mr Bennett had, indeed, arrived within the building. We broke off from delivering the judgment and rose. Since then Mr Bennett has attended. It is now about 3.07pm. Mr Bennett has been given the fullest opportunity to address us, and has addressed us briefly. He has also indicated that, whilst he recognises that the papers have been gone through before us by Mr Hoskins, on behalf of the Attorney General, there would be no point in them being gone through all over again, in Mr Bennett's presence, because Mr Bennett well knows what the papers say. The drift of Mr Bennett's argument has been that he has not had justice. We now continue with the judgment at the point at which we earlier broke off. Fortunately we had not embarked on the merits in any way but had just indicated that we would have in mind and adopt the definition of vexatious proceedings which Lord Chief Justice Bingham had used in the Barker case. Continuing with the judgment –[5]We note also the reference in the Wheen case, at both EAT and Court of Appeal levels, to Attorney General v Jones [1990] 1WRL 859 Court of Appeal 863, namely, that a person in Mr Bennett's position as a Respondent to an application such as this is not in the position to re-open the decisions of the various earlier cases which are relied upon as an indication of his having previously instituted vexatious proceedings. We have in mind, too, that we are to apply the civil standard of proof but paying a proper regard to the seriousness of the issues at stake – see Wheen in the Court of Appeal at paragraph 32.[6]With that background we turn to the description of Mr Bennett's various proceedings given in an affidavit sworn on 9 January 2001 by Rodger Lutterodt, a solicitor in the Treasury Solicitors Department, sworn on behalf of the Attorney General. Mr Bennett lodged an IT1 against his erstwhile employer, the Lord Chancellor's Department, on 22 June 1988. He had been an administrative assistant with the Public Trust Office, which is an executive agency of the Lord Chancellor's Department. The Lord Chancellor's Department's IT3 of 20 July 1998 said:
"Following a series of warnings regarding performance, the report at the end of the trial again marked the Applicant as "
Unsatisfactory". As a result, a Retirement Board was convened (before which the Applicant appeared) and its recommendation was that he be prematurely retired on the grounds of inefficiency; the recommendation was accepted by the Head of Personnel Management Division. Since 1985 the Applicant has had 3 Reporting Officers, 3 Countersigning Officers and annual interviews with a Personnel Officer. He was given every opportunity to raise his performance to an acceptable level, with all appropriate guidance and assistance, but failed to do so. In all the circumstances, it is denied that the Applicant's dismissal was unfair." On 17 March 1989 Mr Bennett's first IT1 was dismissed by the Employment Tribunal (it was then, of course, called the Industrial Tribunal) upon its having been withdrawn by Mr Bennett. That is important to have in mind - that it was Mr Bennett who withdrew the application and that it was that withdrawal that led to its being dismissed by the Employment Tribunal[7]So far there was nothing at all vexatious in Mr Bennett's proceedings but he formed the view, and he has obviously very much had it in mind since, that he had been improperly pressurised into withdrawing his complaint and that the Lord Chancellor's Department was denying him further employment by not providing a satisfactory reference. He accordingly began a series of applications or of fresh proceedings, sometimes against the Lord Chancellor's Department, sometimes against the Public Trust Office. There is, as it seems to us, no need to distinguish between the two.[8]The basic complaint remains the same throughout. The proceedings are set out in a convenient tabular form in our papers by way of a summary. We touch upon them only relatively briefly. Mr Bennett's first move was to appeal the dismissal of his IT1 upon its withdrawal. The 42 days for appeal ran from 17 March 1989. No timely Notice of Appeal was lodged. A request for an extension of time was made on 14 September 1989. Hardly surprisingly, an extension of time was refused by the Registrar of the Employment Appeal Tribunal on 24 January 1990. The appeal to the President of the Employment Appeal Tribunal was then dismissed on 11 June 1990. Leave to appeal to the Court of Appeal was refused. Next, a fresh IT1 was launched on 10 June 1992 against the Lord Chancellor's Department raising the same issues about the dismissal of the first IT1 and the consequences of the dismissal of the first IT1. There was then a hearing at the Employment Tribunal on 12 February 1993. On 24 March 1993 the Employment Tribunal held that the complaint was, in effect, barred both by estoppel and by the statutory time bar. Mr Bennett's appeal to the Employment Appeal Tribunal was dismissed on 11 October 1993. Only a few days afterwards one notes, on 16 October 1993, Mr Bennett launched yet another IT1 against the Lord Chancellor's Department going over the same ground yet again. The Employment Tribunal dismissed that on 20 April 1994. Then, again after only a short interval, on 25 July 1994, yet another IT1 was launched against the Lord Chancellor's Department in which Mr Bennett reiterated his complaints as to the 1998 dismissal from employment and the 1989 withdrawal and dismissal of his IT1. On 23 November 1994, the Employment Tribunal ruled on the matter saying:
"In exercise of the power conferred on me [this is the Chairman] by Rule 13(2)(e) of the Industrial Tribunals Rules of Procedure 1993, I strike out and dismiss the Originating Application dated 25 July 1994 on the ground that it is frivolous or vexatious"
And under the heading:
"REASONS The Applicant has presented his Originating Application alleging unfair dismissal some six years after the termination of his employment notwithstanding that the time limit for such an application is three months. The Applicant has failed to respond to three letters of the Tribunal dated 27 September, 10 October and 10 November 1994 inviting him to show cause why this order shall not be made."
Mr Bennett, undeterred, applied for a review which was refused on 11 January 1995. His appeal to the Employment Appeal Tribunal was dismissed on 9 November 1995. In the course of the Employment Appeal Tribunal's judgment, which was delivered by Mr

Justice Mummery, the Employment Appeal Tribunal said, after setting out the history of the matter:

"We have considered the arguments. We have reached the conclusion that on this Preliminary Hearing, Mr Bennett has failed to show that there is an arguable point of law on the appeal. The position seems clear enough to us on the history of this case. He brought a case in time. He withdrew it on advice. That is the end of the matter. What he is seeking to do in later cases is either to resurrect a case which came to an end when he withdrew it, or to bring a new case, such as the case on references, which the Industrial Tribunal has no jurisdiction to entertain. This appeal is doomed to fail. There is no point in letting it go on. It will therefore be dismissed."
Mr Bennett sought leave then to appeal from the Employment Appeal Tribunal to the Court of Appeal on 12 December 1995 and the Court of Appeal refused that leave on 20 June 1997. On 13 January 1995, Mr Bennett issued yet another IT1 against the Lord Chancellor's Department, again relating back to the dismissal in May 1998. On 14 March 1995, the Employment Tribunal struck out that IT1 on the ground it was vexatious. On 15 June 1998, there is yet another IT1, this time directed against the Public Trust Office. On 7 September 1998, it was struck out by the Employment Tribunal. Mr Bennett appealed to the Employment Appeal Tribunal on 7 June 1999. His appeal was dismissed. The Employment Appeal Tribunal's judgment, delivered on that occasion by His Honour

Judge Clark, included this:

"There are no grounds for reopening the circumstances in which he came to withdraw his complaint ten years ago. In these circumstances we are quite satisfied that the Chairman was right to strike out the present complaint. There is no arguable point of law raised in the Notice of Appeal and accordingly we dismiss the appeal."
On 9 June 1999, Mr Bennett applied for that decision to be reviewed. That was refused on 18 June 1999. Leave to appeal to the Court of Appeal was sought and refused. Mr Bennett sought leave from the Court of Appeal but failed to lodge the required papers in time and so his application for leave failed. On 4 November 1999, he launched yet another IT1, this time against the Public Trust Office, still going back to the dismissal from employment of May 1998. The Employment Tribunal struck it out on 17 March 2000. Mr Bennett appealed to the Employment Appeal Tribunal. On that occasion he was represented at the Employment Appeal Tribunal by experienced leading counsel under the ELAAS system, nonetheless the EAT dismissed the appeal and a reasoned judgment was given by Mr Recorder Langstaff supporting the decision. Mr Bennett then made application for that to be reviewed. That was refused on 3 August 2000. Accordingly on 9 January 2001 the Attorney General applied to the Employment Appeal Tribunal for the relief which we are now dealing with. On 5 February 2001, Mr Bennett showed that his guns were still blazing, he says:
"The Applicants have never attended an Employment Appeal Tribunal hearing in this case. Their demand for a restriction of proceedings order is malicious. There is nothing frivolous or vexatious in justice which has been denied me for the past 11 years. I have had no compensation for the loss of my job and livelihood. This restriction is a liberty of Human Rights."
[9]In our judgment, with that history in mind, we are satisfied that Mr Bennett has habitually and persistently and without reasonable ground instituted vexatious proceedings and has in such a manner also made vexatious applications in existing proceedings. His first IT1 was withdrawn voluntarily and on advice, so far as we can tell. Had he wished to complain that it was not a proper withdrawal and dismissal then he should have moved to appeal promptly as the rules require, but he did not. He neither moved to set aside the original dismissal of the first IT1 by reason, for example, of fraud or undue pressure or mistake, nor to appeal it within the prescribed time. He let some six months go by before taking any procedural step. The matter has only got worse with repetition.[10]It is thus, in our view, open to us, as a matter of discretion, to make a restriction of proceedings order. We have in mind the persistency and frequency of Mr Bennett's litigious steps. There has not been any long period of inactivity as there was in Mr Wheen's case. Rather, Mr Bennett's applications have continued at intervals throughout the whole period since September 1989. We have been given no reason for any confidence that if left free to proceed Mr Bennett will desist from issuing further proceedings in respect of the very same complaint that he has repeatedly complained of since the outset.[11]We remind ourselves by reference to paragraph 11 of the Employment Appeal Tribunal's judgment in the Wheen case, that one of the objects of section 33 and kindred legislation is as is there expressed. The EAT there said:
" ……. one object of section 33, as emphasised in the Barker case, on similar legislation, is to protect respondents from the cost and the anxiety of proceeding 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 [as it then was] 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 hearing 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. "
Similar considerations can properly be taken into account in the case before us.[12]Having regard to the matter as a whole and recognising that we have a discretion open to be exercised, we think it would be right here to make a restriction of proceedings against Mr Bennett and that it would not be right to limit its duration to any particular period. Accordingly we make the order sought by the Attorney General and, since Mr Bennett has turned up, we have no need to consider whether the order should lie in office, which was a matter we had contemplated at the beginning of the judgement when Mr Bennett had not arrived.