HER MAJESTY'S ATTORNEY GENERAL v MR REGINALD TYRRELL [2003] UKEAT 0236_03_0406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0236_03_0406Case No Appeal No. EAT/0236/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HER MAJESTY'S ATTORNEY GENERALAPPELLANTMR REGINALD TYRRELLRESPONDENT
Before
Mr Justice BurtonDate 4 June 2003
[1]APPEARANCES For the Appellant MR M MAXWELL-SCOTT (of Counsel) The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an application brought by the Attorney General under Section 33 of the Employment Tribunals Act 1996 for a Restriction of Proceedings Order against Mr Reginald Tyrrell. A Restriction of Proceedings Order under that section is equivalent to what has been colloquially referred to, pursuant to the procedures which have long existed in the High Court, as a vexatious litigant order. It arises where, on the application of the Attorney General, who has to be brought in as an independent party to consider the papers and make the application, the court is invited to conclude that the litigant in question should not be permitted to make any further applications of any material kind without there first being a check in future by the court as to whether those proceedings are well founded or not. It arises in circumstances where a litigant, usually a litigant in person, has brought a substantial number of cases, either against the same defendants, or at any rate in respect of the same subject matter, repeatedly over a substantial number of months or, in some cases, years.[2]Section 33 now reads as follows:
"(1) If, on an application made by the Attorney General … 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 application 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. (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 instituted 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. (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." The order that is sought in this case by the Attorney General is such that it is intended, if granted, to remain in force indefinitely.[3]There has been a number of reported decisions which have amplified and explained the nature and the context of an order, either a similar one in the High Court under Section 42(1)(b) of the Supreme Court Act 1981 (as amended), in the cases of Attorney General v Jones [1990] 1WLR 859 CA and Attorney General v Barker [2000] 1 FLR 759 , or, so far as a Restriction of Proceedings Order is concerned under Section 33, in the unreported decision of Attorney General v Wheen CA 7 December 2000. The principles under which the section is operated, which is clear from those cases, are helpfully summarised in two places, to which our attention has been drawn by Mr Maxwell-Scott, counsel for the Attorney General. At paragraph 22 at page 764 of Barker , Lord Bingham LCJ, as he then was, says as follows:
"The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop."
We have had our attention drawn further to paragraph 18 of the judgment of Keene LJ in Wheen , who said this:
"It is right that that decision seems to have taken a considerable time, since it was over a year later that the application to the Appeal Tribunal for a section 33 order was made. But clearly throughout that time Mr Wheen was well aware that the Attorney General was considering whether or not to apply for a restriction order against him. That, to my mind, was a relevant factor for the Appeal Tribunal to take into account in the exercise of its discretion, along with the absence, as I have indicated, of any evidence from Mr Wheen that he had undergone some change of heart. There may sometimes be situations in which the mere passage of time since the last litigious step was taken may give rise to an inference that the person concerned has had a change of heart or for some other reason may not be likely to commence further proceedings, despite his conduct in the past. But in the circumstances of this case the Appeal Tribunal was in my judgment entitled to conclude that that was not an appropriate inference to be drawn from the passage of time alone."
[4]Against that background, we turn to consider the position of Mr Tyrrell. Mr Tyrrell has not attended today, and has sent a notice to the court to the effect that he is unable to attend but wishes this Tribunal to take account of his written submissions, which we have read and fully considered. He has for many years had what appears to be a burning resentment arising out of his dismissal by the Ministry of Defence. In 1996 he was employed as a labourer and store assistant, from 1987 until that date. When dismissed he issued, in the Leeds Employment Tribunal, what was to be the first of many proceedings, to which we will refer, but, of course, perfectly properly doing so, whatever may have been the merits of his case, with which we are not concerned, bringing a claim for unfair dismissal. That claim was settled after Mr Tyrrell had had the opportunity of taking advice from his union, the TGWU, and under the imprint of ACAS. He signed a COT3 form in February 1997, receiving compensation in settlement of his claim.[5]That was the starting point, and we shall refer to what has occurred subsequently, which has led over the last eight years to a total of eight more proceedings being brought arising out of the same matters, themselves proliferated by the bringing of review applications and appeals in respect of all or most of those proceedings, as we shall describe.[6]The second of the nine proceedings, which has been the subject matter of our consideration, was brought on 15 December 1997 in the Manchester Employment Tribunal. He brought the claim against his union, the TGWU, for breach of Section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992 . He later added a discrimination claim pursuant to the Disability Discrimination Act 1995 . That application was, on 5 March 1998, dismissed by the Chairman of the Manchester Tribunal on grounds that it was out of time. As will become clear, this became a pattern. The Applicant was not content with that dismissal and sought, as he was entitled to do, a review. His application for a review was refused by the Chairman on 27 March 1998. He followed up that review by an appeal to this Appeal Tribunal. His appeal was dismissed by panel of this Tribunal, chaired by Smith J, on the basis that it had no prospect of success and raised no arguable point of law. That was the end of the second set of proceedings, after an unsuccessful review and appeal.[7]In the meanwhile, pending his unsuccessful appeal in respect of action number two, he had commenced a fresh action, namely the third set of proceedings, this time in the Leeds Employment Tribunal, once again against the TGWU. The claim was for victimisation, disability discrimination and unjustifiable discipline. A Chairman of the Leeds Tribunal listed the matter for a pre-hearing review on 2 September 1998. The Chairman recorded that the legal representative of the TGWU had been accused by the Applicant of perjury and warned Mr Tyrrell to be careful of his conduct, given that it might amount to vexatious behaviour within what was then Rule 12, Schedule 1 of the Employment Tribunal Constitution Rules of Procedure Regulations 1993 , making him subject to a costs order. The Applicant continued to push his case vigorously, including applications for witness orders against the Regional Chairman, and indeed, on 18 March 1999, applied to the Leeds Tribunal for the Regional Chairman to be joined as a party to the application pending in the Leeds Employment Tribunal, so that he could attend a hearing, alleging that on three occasions the Regional Chairman had victimised or discriminated against him as a disabled person. On 17 May 1999 there was a Preliminary Hearing held in relation to action three at which it was concluded by a different Chairman at Leeds that he did not have a disability within the meaning of the Disability Discrimination Act . His complaint, that he had been unlawfully discriminated against because of disability, was consequently dismissed. .[8]By this time he had issued the fourth set of proceedings, again in the Leeds Employment Tribunal, again against the TGWU, but this time joining Mr Scott, the legal representative of TGWU, to whom we have made earlier reference, as an individual party, claiming discrimination. At the same Preliminary Hearing, to which we have referred, the Applicant was ordered to pay a deposit of £150 pursuant to Regulation 7(4) of Schedule 1 of the 1993 Regulations (as amended) on the ground that he had no reasonable prospect of success in that claim. That claim was then consolidated with the balance of the third proceedings, insofar as it had not all been struck out on 17 May.[9]Then a fifth set of proceedings, proceedings five, were issued on 23 June 1999, once again in the Leeds Employment Tribunal, this time against Mr Scott alone, for unjustifiable discipline and disability victimisation. This was consolidated with the remainder of proceedings three and with proceedings four on 8 July 1999. On 4 October 1999 a yet further Chairman in the Leeds Employment Tribunal dismissed the rump of proceedings three and the whole of proceedings four and five.[10]The next step that the Applicant took was to apply, in the Leeds Tribunal, for the first proceedings, the ones that had been settled by virtue of the COT3 form against the Ministry of Defence, to be listed for hearing on the merits. That was refused by a Chairman at Leeds on 15 December 1999, on the basis that there was no ground for reopening the case that had been settled and disposed of in February 1997.[11]The Applicant, Mr Tyrrell, appealed both the dismissals of proceedings three, four and five, and the refusal to list proceedings one for re-hearing on the merits, to this Appeal Tribunal. That appeal was dismissed by Judge Clark, in circumstances to which we will refer, on 31 March 2000, meaning that he had thus appealed unsuccessfully in all five of the proceedings to which we have referred.[12]Meanwhile he had taken further steps. On 8 December 1999 he had sought to issue what would have been the sixth set of proceedings, in the Leeds Employment Tribunal. He made an application, by letter dated 8 December 1999, to bring a further complaint of unjustifiable discipline against the TGWU, alleging conduct by the General Secretary, Regional Secretary and the deceased local District Officer. That application was not issued by the Leeds Employment Tribunal. Instead, the sixth proceedings did not materialise until 13 January 2000, when the Leeds Employment Tribunal did issue proceedings, at his instance, against the TGWU, Mr Davey and Mr Morris, alleging unjustifiable discipline or other detriment. Eight days later, at a hearing, that application was dismissed on withdrawal.[13]On 29 January 2000 proceedings seven were issued, this time against the Ministry of Defence, which had not been joined to proceedings since the very first set of proceedings, and in respect of whom, of course, there was, at that stage, the pending appeal to Judge Clark against the refusal to re-list on merits, to which we have referred. This case was based on a claim for discrimination and victimisation by failing to follow disciplinary procedures causing the claimant to become ill, and alleging breach of contract.[14]On 24 February 2000 the eighth set of proceedings were issued, again, in the Leeds Employment Tribunal, against the TGWU, on the basis of a claim under Section 64 of the Trade Union and Labour Relations Consolidation Act 1992 .[15]It was therefore at that stage that the appeal before Judge Clark, to which we have referred, came on and was dismissed on 31 March 2000, namely when there had been the pending appeals which were then dismissed, to which we have referred, but in addition had now been issued three more proceedings, one of which had been dismissed on withdrawal. Judge Clark, in dismissing the appeals which were before him and the panel at that time, concluded as follows, in paragraph 11:
"This has to stop, these continuing proceedings are a plain abuse of process. There are no grounds for this appeal to the Employment Appeal Tribunal. There is no rational justification for the Applicant to pursue proceedings at all."
The proceedings seven and eight, however, were still then, as we have indicated, in existence, and were not withdrawn. They came on on 6 June 2000 before a yet further Chairman at the Leeds Employment Tribunal and were struck out on the ground that they were frivolous and vexatious within Rule 13(2)(c) of the 1993 Regulations.[16]Mr Tyrrell was not content with that decision and applied for a review, which was refused, by a yet different Chairman, on 26 July 2000 on the basis that it had no reasonable prospect of success. Not content with that decision, Mr Tyrrell appealed back to the Employment Appeal Tribunal and a differently constituted panel of this Tribunal, chaired by Judge Altman, dismissed the appeal on 4 December 2000 on the basis that there was no arguable point of law. That meant, as a result of the now third appeal to the Employment Appeal Tribunal, all eight proceedings - that is the first one which had been sought to be resuscitated and the subsequent seven, had thus been dismissed or struck out.[17]On 6 July 2001 Mr Tyrrell issued fresh proceedings in the Leeds Employment Tribunal. This was, once again, a claim brought against the Ministry of Defence alleging harassment, victimisation, detriment, injury to feelings and making misleading submissions, once again arising out of his dismissal by the Ministry of Defence five years earlier.[18]The next step was an indication by the Attorney General that an application would be made to this court in due course for a Restriction of Proceedings Order. On 12 July 2001 a letter was sent to Mr Tyrrell indicting that the Regional Chairman of Tribunals had directed a stay whilst the matter was referred to the President of the Tribunals with a view to the applicant being declared a vexatious litigant. Of course, any reference to the President of the Tribunals was not directly relevant, the requirement would be a decision by or on behalf of the Attorney General to bring an application by way of declaration that Mr Tyrrell was a vexatious litigant, ie for a Restriction of Proceedings Order, but, on any basis, his ninth application was thus stayed. Notwithstanding that stay, the Applicant has continued to correspond with the Tribunal and with the Respondents. We have seen a bulk of correspondence continuing through to September 2002 in which he was seeking orders and giving and seeking disclosure of documents, showing a desire still to proceed with his claim.[19]The necessary sanction by the Solicitor General to make an application to this Tribunal for a Restriction of Proceedings Order was given in February 2002. It took twelve months until this application was launched in February 2003; that is, and we have made this clear to counsel for the Attorney General, a most unsatisfactory state of affairs. It obviously needs time to consider the making of an application for such an order, and we make no criticism of the passage of time between July 2001 and February 2002 when the sanction was granted, but we do criticise the passage of time since February 2002 before the making of this application one year later. Counsel has not been able to offer us any explanation other than the fact, as is understandable, that the Attorney General's office has other priorities, but that is not a satisfactory answer at all. Nevertheless, we are now dealing with this application, and one of the matters which we shall have to address is whether the passage of time between February 2002 and February 2003 in any way renders inappropriate or unnecessary the making of the order which is now sought.[20]The Respondent to this application, Mr Tyrrell, has, as we have indicted, put forward a number of submissions. One of them, namely, a reference to the Data Protection Act, does not appear to us to have any materiality. Not only are there exceptions in that Act to allow for consideration of matters otherwise protected by the Act in legal proceedings, but in any event, and more significantly, the making, and the granting (if granted), of this application has no relevance to matters protected by the Act in any event; as can be seen from the approach which the Attorney General has taken, and from the consideration that we have given, we have not considered, nor needed to consider, the merits of the applications afresh. We are content to rely upon the judgments and decisions of court after court after court, at first instance, on review, and on appeal, which have concluded that there is no merit in those applications. We are not intending, and, indeed, this is not the purpose of the application, and, indeed, it is the purpose of any order to avoid it, to tread over sensitive or confidential grounds.[21]The other matters that Mr Tyrrell raises are as follows:(1) First, he asserts that his Article 6 rights would be interfered with by the making of a Restriction of Proceedings Order. We are entirely satisfied that the Section and any order made under the Section is Article 6 compliant. The party in question is not prevented from bringing any further proceedings, it is simply that, given the quantity of previous applications, all arising out of the same subject matter and all determined contrary to his interests, render it now necessary that if further such proceedings are brought there should be a threshold for him to have to surmount of showing that the bringing of such further proceedings is reasonable and soundly based. If they are, then he will be permitted to proceed.(2) Secondly, he submits that the ninth set of proceedings have not yet been determined, have been interrupted by the grant of the stay and the making of this application, and that the right course for the courts ought to have been a consideration by the Leeds Employment Tribunal of an application that the ninth proceedings were vexatious, and no such application having been made or considered, it is inappropriate for this order to be sought. That misconceives the basis of this application. It is not necessary for this application to be made in one particular action. Indeed, it is not brought by a party to one particular action. It is brought, in the interests of the public, by the Attorney General. It is intended to prevent separate consideration in each separate fresh action, and the onus being placed upon the opposite party, harassed by continuing actions, continually to bring such applications. In any event, as we have recited, both the seventh and eighth proceedings were indeed struck out on 6 June 2000 on the basis that they were frivolous and vexatious, and it would seem likely that there would have been and could have been a similarly successful such application made in relation to the ninth set of proceedings, which the making of this order would render unnecessary.(3) The third point that is made by Mr Tyrrell is one which has, in the light of the history to which we have referred, necessarily troubled us. That can be put as being, in general terms, one of delay. He submits that the Ministry of Defence, which, of course, is not a party to these proceedings, but is a party to the ninth proceedings, has not put in a notice of appearance in the ninth set of proceedings, and that the inter-position of this application has caused delay to the ninth proceedings, and itself has, as he put it, been brought by the Attorney General out of time. There is no provision so far as out of timeness is concerned relevant to Section 33. Everything depends upon whether, at the time the application is made by the Attorney General to this Tribunal, this Tribunal can be satisfied that there is a risk of continuance of vexatious proceedings, and it is obvious, as we have earlier indicated, that the more time passes the more it may be capable of being alleged that this order is no longer necessary because the party in question has taken no further step, has learnt his lesson, and has acquiesced in the injustice, as he would no doubt see it, or, at any rate, as could be more objectively stated, in the earlier decisions of the court. It is certainly the case that, for example, in Barker , the very passage of time was considered sufficient to mean that the order would not be appropriate to be made, albeit that that is the case in which Lord Bingham set out in such clear terms the ingredients for the making of an order.[22]We have carefully considered the words of Keene LJ in paragraph 18 of Wheen which we recited earlier. Notwithstanding the passage of time since July 2001 when the ninth proceedings were stayed, it is entirely clear to us that Mr Tyrrell has not undergone a change of heart, and it is not a situation in which the mere passage of time since the last litigious step can, or does, give rise to an inference that he has had a change of heart, or for some other reason may not be likely to commence further proceedings, despite his conduct in the past. As we have indicated, it is quite plain that the Applicant, notwithstanding the stay, has continued to pursue even the ninth proceedings and there is no indication of his having decided that enough is enough. He had the clear warning from Judge Clark, in this Tribunal, as long ago as 31 March 2000 and took no notice of that to the extent of pursuing, both to review and appeal, the seventh and eight proceedings. He then commenced the ninth proceedings which he has given every appearance of wanting to pursue.[23]We are satisfied that the ingredients to which Lord Bingham referred to in Barker -successive actions either against the same parties or against successive parties who either were or could have been joined in the earlier proceedings, and in respect of whom findings are made all arising out of the same set of facts; refusing to take any notice of orders and indications by the court; and effectively, what Lord Bingham describes as the essential vice of habitual and persistent litigation, of keeping on and on litigating when earlier litigation has been unsuccessful and then on any rational and objective assessment the time has come to stop - could not be more clearly exemplified by the conduct of this Applicant.[24]We are satisfied that it was appropriate for an order to be made on this application in February 2002, and that nothing has happened since February 2002 to cause there to be any less need for the making now of this order. We conclude that it is appropriate that it should be made and that it should be permanent. In those circumstances this application is granted.