HER MAJESTY’S ATTORNEY GENERAL APPLICANT v MR D C D'SOUZA [2004] UKEAT 0139_04_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0139_04_1907Case No Appeal No. UKEAT/0139/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HER MAJESTY’S ATTORNEY GENERAL APPLICANTAPPELLANTMR D C D'SOUZARESPONDENT
Before
Mr Justice Beatson Mr J Mallender Mr S M SpringerDate 19 July 2004
[1]APPEARANCES For the Applicant MR WILLIAM HOSKINS (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS For the Respondent MR D C D'SOUZA (the Respondent in Person) SUMMARY Practice and Procedure Application by the Attorney-General for a Restriction of Proceedings Order pursuant to section 33 of the Employment Tribunals Act 1996 granted. It is not open to the Employment Appeal Tribunal considering an application under section 33 to revisit the conclusions of the judges in the underlying proceedings upon which the application is based: Attorney-General v Wheen [2000] IRLR 461, affirmed [2001] IRLR 91 followed. THE HONOURABLE MR JUSTICE BEATSON By an application dated 16 January 2004 the Attorney-General seeks a Restriction of Proceedings Order pursuant to section 33 of the Employment Tribunals Act 1996 in respect of the respondent, Mr Donald Claudius D'Souza. Three affidavits respectively dated 16 January, 27 February and 23 March 2004 have been sworn in support of the application by Mr Andrew Turek. The applicant contends that the respondent exhibits a refusal to accept the decisions of employment tribunals and the Employment Appeal Tribunal and is likely to continue to pursue vexatious litigation which he has habitually and consistently and without reasonable ground pursued in the past. The respondent opposes the application.[2]On 9 February 2004 Burton J ordered the applicant to serve and lodge an affidavit or affidavits setting out the nature and gist of its case. His Lordship's order also required the respondent to comply with rule 15 of the Employment Appeal Tribunal Rules 1993 , and to set out the gist and nature of his case in any affidavit or affidavits in opposition to the application within 21 days after receipt of the applicant's further affidavit or affidavits. On 19 March 2004 the respondent served a Statement of Truth. In a letter to the Employment Appeal Tribunal on the same day he stated that he was not submitting documents to this tribunal but wished the applicant to refute the Statement of Truth by adducing documentary and oral evidence. We have also had the benefit of skeleton arguments from the respondent and Mr Hoskins, who appeared on behalf of the applicant.[3]The respondent was employed, originally by the Greater London Council, and from March 1986, by Lambeth London Borough Council, as an Information Systems Group Manager. He was suspended from that post on 21 September 1989 and dismissed on 22 January 1990. This application relates to eight cases brought by him against Lambeth LBC and its members, officers and a legal adviser, since 3 March 1996. It relies on proceedings instituted on that date (case 14097/96), on 7 July 1997 (case 230224/97), 24 November 1998 (case 2304856/98), 17 August 1999 (case 2302685/99), 23 November 2000 (case 2306526/00), 8 May 2001 (case 2302456/01), 16 September 2003 (case 2305185/03), and 19 April 2004 (case 2302297/04) and on applications made in all but the two most recent of these cases. Where decisions have been given, save for a successful appeal from a costs order imposed by one of the tribunals, the respondent has been entirely unsuccessful. The proceedings before the employment tribunal in case 2305185/03 were adjourned on 12 February 2004 pending the outcome of this application. The application in case 2302297/04 made on 19 April 2004 arises out of that adjournment. The Legal Framework[4]By section 33 of the Employment Tribunals Act 1996 :
"(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. (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. (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 of 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."
[5]The equivalent and substantially identical provision in respect of proceedings in the High Court and in County Courts is section 42 of the Supreme Court Act 1981 which makes provision for civil proceedings orders against vexatious litigants. The principles governing orders under section 42 were applied to restriction of proceedings orders under section 33 of the 1996 Act by the Employment Appeal Tribunal in Attorney-General v Wheen [2000] IRLR 461, a decision affirmed by the Court of Appeal, [2001] IRLR 91. In Attorney-General v Barker [2001] FLR 759, 765, an application under section 42, guidance was given as to the terms "vexatious" and "habitually and persistently". With regard to the former, Lord Bingham LCJ stated, at page 764:
"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"
As to "habitually and persistently", his Lordship stated:
"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."
That "habitually and persistently" requires some degree of repetition was also stated in Attorney-General v Wheen [2000] IRLR 461 at 462 paragraph 2 (EAT); [2001] IRLR 91, 92 paragraph 10 (CA). In Attorney-General v Barker Lord Bingham, LCJ stated (at p. 765) that the repetition need not be over a long period.[6]An application for a restriction of proceedings order may be made in respect of the institution of vexatious proceedings in an employment tribunal or before the Appeal Tribunal (section 33(1)(a)) and in respect of the making of vexatious applications in any such proceedings (section 33(1)(b)). The Background[7]The proceedings that form the basis of this application can be described as the second phase of litigation in employment tribunals and the Employment Appeal Tribunal between the respondent and Lambeth. That phase cannot, however, be understood without some account of the first phase of the litigation, about which no complaint is made by the applicant. The first phase consisted of seven cases Mr D'Souza brought against Lambeth before and immediately after his dismissal in 1990 alleging racial discrimination and victimisation. Before his dismissal he brought 5 cases between 30 September 1987 and 20 December 1989, the last of which was in respect of his suspension on 21 September 1989. In one of these he also alleged discrimination by Mr A J George, and Councillors Bellos, Dewpney, Hughes, Shakespeare, and Sorabji. He was successful before employment tribunals in 3 of these applications and awarded damages of £3,000 on 2 occasions and £500 on one occasion. He was unsuccessful in the remaining 2 applications.[8]After his dismissal, on 10 April 1990, the respondent instituted proceedings in the industrial tribunal for unfair dismissal, racial discrimination and victimisation. In these proceedings he stated inter alia that he had attempted to use Lambeth's grievance procedure but had been denied this facility and had been denied the right to appeal against his dismissal. Lambeth acknowledged that, since it had not followed the normal disciplinary procedures, the dismissal was unfair but denied racial discrimination. In March 1993 an industrial tribunal held that Lambeth had unfairly dismissed Mr D'Souza and was guilty of direct race discrimination and victimisation. It ordered Lambeth to reinstate Mr D'Souza, and also ordered Lambeth to pay him £5,000 in respect of the discrimination and victimisation. Following a hearing in July 1995, in August 1995 the tribunal accepted Lambeth's submission that reinstatement was not practicable and so held. Compensation was assessed following a hearing on 14 September 1995. The total compensatory award was assessed at £377,546.42 but this was held subject to the then statutory cap of £8,925.[9]On 9 October 1997 Mr D'Souza's appeal to the Employment Appeal Tribunal was allowed and his compensation fixed at £358,288.73. This tribunal held that the industrial tribunal had erred in law in not making an award under the Race Relations Act 1976 to compensate the applicant for loss of earnings in respect of his discriminatory dismissal once the employers had refused to comply with the order to reinstate him with the result that the award in respect of loss of earnings was limited to the statutory maximum compensation for unfair dismissal. Morison J, delivering the judgment of the Appeal Tribunal, stated: "In the experience of this court, this is the worst case of unlawful race discrimination that it has ever had to consider. Furthermore, there is no reported case which shows such persistent discrimination against one individual." and "[He]…has been the victim of shameful treatment by a local authority" [1997] IRLR 677, paragraphs 1 and 29.[10]On 16 December 1998 the Court of Appeal, allowed an appeal by Lambeth, holding that the industrial tribunal had correctly decided not to increase the compensation previously awarded under the Race Relations Act 1976 , even though the upper limit on compensation under the Race Relations Act 1976 had by then been removed. The Race Relations (Remedies) Act 1994 , which removed the limit, only applied to cases where compensation was awarded for race discrimination after that Act came into force on 3 July 1994. In the present case, the award of compensation for race discrimination was made on 16 March 1993, before the 1994 Act came into force. The Court of Appeal held that the fact that reinstatement was later held to be impracticable only affected the remedies for unfair dismissal and did not make the remedy awarded under the Race Relations Act 1976 anything other than final. A petition for leave to appeal to the House of Lords was refused on 20 October 1999. Mr D'Souza was represented by counsel throughout these proceedings. In all but one of the earlier proceedings before tribunals he represented himself.[11]The final two applications in what we have described as the first phase of Mr D'Souza's litigation were an application issued on 30 June 1995 for race discrimination and victimisation in respect of the continuing refusal of Lambeth to reinstate him, and an application issued on 23 July 1995, also for race discrimination and victimisation, in respect of Lambeth's refusal to reinstate him but additionally proceeding against Mr Herman Ouseley, then Lambeth's Chief Executive, and Mr Steggals, the Director. Those applications were dismissed on 13 March 1996 by an industrial tribunal on the ground of lack of jurisdiction based on the law as it was then understood in the light of the decision in the Appeal Tribunal in Post Office v Adekeye (No 2 ) [1995] IRLR 297 (subsequently affirmed: [1997] IRLR 105). Subsequent appeals to the Appeal Tribunal and to the Court of Appeal were unsuccessful. Appeals in his case and two others were heard by the House of Lords. On 19 June 2003 their Lordships overruled the decision in Adekeye : [2003] UKHL 33 ; [2003] ICR 867 . Although the applicants in the other cases succeeded, Mr D'Souza's appeal failed. Their Lordships held that the refusal to reinstate him was not conduct falling within s4 of the Race Relations Act 1976 because the benefit acquired by an employee from a reinstatement order does not arise from the employment relationship but derives from an order of the tribunal after the employee has been unfairly dismissed.[12]We have referred to Morison J's statement that he considered this to be the worst case of unlawful racial discrimination the EAT had considered. Mr D'Souza, as was recognised by the decision of an employment tribunal chaired by Mr Snelson in the second phase of Mr D'Souza's litigation, must have experienced a crushing disappointment when the very substantial award of the Appeal Tribunal presided over by Morison J was overturned by the Court of Appeal in December 1998, and the House of Lords refused his petition for leave to appeal on 20 October 1999. That must have been compounded by the fact that, although his case was one of those before the House of Lords when their Lordships overruled the decision in Adekeye in June 2003, his success on the Adekeye point brought him no practical benefit. These cases provide the background to the cases brought since 3 March 1996 upon which the Attorney-General relies in support of his present application. We now turn to those cases.[13]The first was launched over six years after Mr D'Souza's dismissal by Lambeth. Not surprisingly, in view of the three month time limit in section 76 (1) (a) of the Sex Discrimination Act 1975 and section 68 (1) (a) of the Race Relations Act 1976 , a fundamental issue in this and other cases brought by Mr D'Souza was whether time should be extended under section 76 (5) of the 1975 Act and section 68 (6) of the 1976 Act. Case No. 14097/96; EAT/1042/96[14]The first of the cases upon which the Attorney-General relies in support of his application was launched on 3 March 1996, before the decision of the Employment Appeal Tribunal presided over by Morison J in Mr D'Souza's unfair dismissal and race discrimination case. His new claim was that the dismissal constituted direct sex discrimination under the Sex Discrimination Act 1975 and the Equal Treatment Directive 76/207/EEC. Mr D'Souza sought to bring the claim out of time under section 76 (5) of the Sex Discrimination Act 1975 in view of what he described as "the special circumstances involved and the ruling of the European Court".[15]Following a hearing on 26 June 1996, on 13 August 1996, an employment tribunal chaired by Mrs Gleeson (hereafter, the "Gleeson tribunal") refused to allow the claim to proceed on the ground that it was out of time and that in all the circumstances the tribunal did not find it just and equitable for the claim to be considered out of time. The tribunal stated (paragraph 7) that the applicant was aware of his sex discrimination claim as long ago as 1990 and had told the tribunal that he had been advised by Messrs Lawfords not to pursue it. Paragraph 8 of the decision states that:
"The present originating application contains no particulars whatsoever of the alleged discrimination."
The decision states that the applicant was clearly sufficiently experienced to know that such particulars are necessary and that to issue an application effectively in blank six years after the event is unreasonable and, had it been necessary, the tribunal would have been prepared to find that the application should be struck out.[16]An application for a review of the decision was refused on 27 February 1997 and the decision to refuse a review was itself reviewed and upheld by the full tribunal on 4 December 1997. Between those two reviews an appeal to the Employment Appeal Tribunal was dismissed following a preliminary hearing on 2 July 1997. The Appeal Tribunal presided over by His Honour

Judge Hull QC stated, that it was:

"…quite unable to find any fairly arguable point of law in criticism of this decision, on which this appeal could proceed. Indeed, we would go further; having looked at this decision carefully and looked at such of the facts as we know, it appears to us that it would have been an extraordinary decision and perhaps appealable, had the decision been the other way."
It is clear from this decision that Mr D'Souza had made submissions based on European law to the Appeal Tribunal.[17]Mr D'Souza appealed the refusal of the Gleeson tribunal to review its decision. On 23 March 1999, the Employment Appeal Tribunal dismissed his appeal. This decision is not in the documents exhibited to the applicant's affidavits. It is, however, referred to in a further decision of the Gleeson tribunal promulgated on 31 October 2000. That decision concerned an application made on 27 October 2000, for a further review of the decision promulgated some four years earlier by the tribunal she chaired. Mr D'Souza's stated that this, his third application for a review, was based on new evidence that his proposed comparator, Miss Lewis, was not dismissed. Mrs Gleeson held that the evidence was not new. It was foreseeable at the date of the decision, and indeed the applicant had then said that Miss Lewis had not been dismissed. She also stated that the evidence Mr D'Souza wished to adduce "show[ed] merely that Miss Lewis is even less a comparator than originally suggested". Mrs Gleeson also considered Article 6 of the European Convention. She stated that Mr D'Souza "has already had a fair and public hearing on numerous occasions", and "there is no breach of Article 6 in refusing the applicant yet another review, four years out of time, of a refusal to extend time by six years, on the seventh claim arising out of the same dismissal". Mr D'Souza appealed from this decision by a letter dated 29 December 2000. The appeal was dismissed by the Employment Appeal Tribunal presided over by Maurice Kay J (as he then was) on 19 December 2001. Case No. 2303224/97; EAT/199/98; EAT 489/98; EAT 893/98; EAT/28/99; EAT/233/99[18]The second of the proceedings upon which the Attorney-General relies is an application alleging sex discrimination arising out of Lambeth's refusal to reinstate Mr D'Souza. Its procedural history is extremely complicated. The application was made on 2 July 1997, the day of the EAT decision dismissing his appeal from the Gleeson tribunal. The respondents are Mr Herman Ouseley and Lambeth LBC.[19]Mr D'Souza's application stated that, although he believed at the time Lambeth refused to reinstate him that its refusal constituted unlawful sex discrimination, he could not commence proceedings as he did not have the requisite evidence to support the claim. He contended that the delay in submitting the application was a direct result of the tactics used by Lambeth which included giving him untrue information and suppressing relevant facts and documents which were essential if he was to have any success in proving his claim. He referred to his receipt in June 1997 of a copy of the Industrial Tribunal's decision in the case brought by Miss Lewis against Lambeth. Mr Ouseley was named because he signed the letter refusing to reinstate Mr D'Souza. On 11 December 1997 an employment tribunal chaired by Mr Davis (hereafter, the "Davis tribunal") refused to allow the claim to proceed as it was out of time. In its decision, the tribunal refers to the application issued on 30 June 1995 for race discrimination and victimisation in respect of Lambeth's refusal to reinstate Mr D'Souza. It states (paragraph 7):
"The applicant now brings this case on the same grounds except that he says the failure to reinstate him was a matter of sex discrimination."
[20]In considering whether to allow the claim out of time the tribunal state (paragraph 15) that it was always open to Mr D'Souza to seek a copy of the decision from the tribunal itself and there was no reason why the application could not have been presented and then the applicant make an application for discovery. After referring to the particular need for expedition in discrimination cases, and the delay of over four years in the present case, the tribunal found that there would be considerable prejudice to the respondent if the case were to be allowed to proceed. It also noted that on the facts outlined to it Mr D'Souza would appear to have very little chance of success. It concluded that the application was presented outside the time limit and the tribunal had no jurisdiction to consider the complaint of sex discrimination. It also rejected the submission that the tribunal should disapply the statutory time limit because of the provisions of the Equal Treatment Directive which the United Kingdom government had failed to implement properly.[21]On 21 December 1997 Mr D'Souza applied for a review of the decision of the tribunal presided over by Mr Davis. The grounds upon which review was sought were the interests of justice and new evidence relating to Miss Lewis' grievance against Lambeth. On 2 February 1998 Mr Davis refused this application giving reasons for his decision. Mr Davis concluded that the new documents did not comprise new evidence sufficient to warrant a review of a decision concerned with the reason for the applicant's delay of four years in bringing his case. With regard to the other grounds, Mr Davis concluded that they were either arguments that the tribunal had erred in law, which were a matter for appeal not review, or attempts to persuade the tribunal to make different findings of fact from those which it made in its original decision. Three days later, on 5 February 1998 Mr D'Souza applied to the London (South) Regional Chairman seeking a further review of Mr Davis' decision or a review of Mr Davis' decision not to review the decision. Alternatively he asked that his application for a further review be referred to the President of the Industrial Tribunals for determination. That application was also refused. An appeal against that refusal, the substantial decision of the Davis tribunal, and Mr Davis' decision refusing Mr D'Souza's application for a review of the substantive decision came before the Employment Appeal Tribunal on 10 July 1998 in the form of a preliminary hearing. On 22 July 1998 the Appeal Tribunal, presided over by His Honour Judge Clark dismissed the appeal. The tribunal refused an application for permission to appeal.[22]It is apparent from a judgment of the EAT presided over by Charles J given on 25 January 2000 that Mr D'Souza made further applications in respect of the decision of the Davis tribunal. On 12 August 1998 he sought a review by the Employment Appeal Tribunal of the orders it made when dismissing the appeal on 22 July 1998. On 12 October 1998 the Employment Appeal Tribunal refused this application. On 26 October 1998 Mr D'Souza made a third application for a review of the decision of the Davis tribunal. That application was made because Mr D'Souza had seen a report of the decision of the European Court of Justice in Coote v Granada Hospitality Limited [1988] IRLR 656 which ruled that the Sex Discrimination Act 1975 does not fully implement the Equal Treatment Directive because it does not allow claims to be brought against an employer after the ending of employment. The application was refused on 2 November 1998 on the ground that the Davis tribunal had not made a decision that the refusal to reinstate was an act occurring after the ending of Mr D'Souza's employment. Since the preliminary hearing had not decided the point it was not possible to "review" the decision. On 12 November 1998 Mr D'Souza made a further application seeking a review of the decision of 2 November refusing to review the decision of the Davis tribunal. That application was in turn refused on 8 December 1998.[23]To summarise, following the decision of the Davis tribunal, by the end of 1998 Mr D'Souza had made four applications for the review of that tribunal's decision. Two of these were made before the determination of his substantive appeal to the Employment Appeal Tribunal in July 1998. Following the dismissal of that appeal Mr D'Souza sought a review of the decision of the Appeal Tribunal, and, following the refusal of that application, he made two further applications to the Davis tribunal; first that it review its decision, and then that it review its refusal to review the decision. On 23 February 1999 Mr D'Souza made a further application to the Appeal Tribunal presided over by His Honour Judge Clark that it review its decision of July 1998. That application was dismissed on 17 March 1999[24]This case came back to the Employment Appeal Tribunal on 15 November 1999 when the tribunal presided over by Charles J dismissed an appeal against the refusals of reviews of the decision of the Davis tribunal. Judgment was given on 25 January 2000. At the hearing Mr D'Souza informed the Appeal Tribunal (see paragraph 7 of its judgment) that he had not as yet pursued an appeal to the Court of Appeal from the July 1998 decision of the EAT presided over by His Honour Judge Clark. He informed the Appeal Tribunal presided over by Charles J that he wished to exhaust all possible remedies before the EAT before he did this. This case was last before the Employment Appeal Tribunal on 1 April 2003 when the tribunal, presided over by Mitting J dismissed an appeal against a further refusal on 29 October 1999 by the Davis tribunal of Mr D'Souza's fourth application that it review the decision it promulgated on 19 September 1997: see paragraphs 59-65 of the judgment. The Employment Appeal Tribunal presided over by Mitting J also considered appeals from decisions of tribunals chaired by Mr Booth and Mr Snelson in cases commenced by Mr D'Souza on 24 November 1998 and 23 November 2000. We shall return to that decision of the Employment Appeal Tribunal, after setting out the circumstances of those cases. Case No. 2304856/98; EAT 0395/99[25]The third case upon which the applicant relies was instituted on 24 November 1998. It alleged sex discrimination and victimisation by Lambeth in respect of various matters relating to Mr D'Souza's dismissal, including a refusal to allow him to appeal against the dismissal; the provision of references by Lambeth and the provision of documents and information required to bring proceedings. Mr D'Souza stated this claim arose as a result of the decision of the European Court of Justice in Coote v Granada Hospitality Limited [1998] IRLR 656 and Kleinwort Benson Limited v Lincoln CC [1999] 2AC 349 . On 12 April 1999 an employment tribunal chaired by Mr Booth (hereafter, the "Booth tribunal") adjourned the matter to enable further evidence to be obtained as to whether it was just and equitable to extend the time limit. Prior to this hearing Mr D'Souza sought a review of orders made on 15 January and 2 February 1999 requiring him to set out more details of his complaints and that there be a preliminary hearing. He had, in fact, provided some further particulars on 8 February 1999. The application that there not be a preliminary hearing was refused on 24 February 1999 and that for a review was refused on 1 March 1999. On 4 March Mr D'Souza appealed to the Employment Appeal Tribunal against the Chairman's rulings.[26]The adjourned hearing was delayed by a number of matters including the illness of the Chairman and to enable the parties to look for documents which the tribunal indicated it wished to see, but resumed on 22 September 2000. At that hearing Mr D'Souza sought to have the case transferred to a tribunal in North London on the ground (see his letter dated 12 October 2000) that "South London tribunals had earned a reputation for racial bias against black applicants particularly under Chairmen Booth, Davis and Gleeson." He also asked that Mr Harrison, one of the members of the tribunal, recuse himself as having shown bias against Mr D'Souza in another case, and complained about the delay. The tribunal refused to extend the time limit. It stated (paragraphs 11-12) that Mr D'Souza's case was not strong because the prospect of him showing the difference in references was attributable to a difference in gender was remote and, more fundamentally, there was no evidence that a reference had ever been provided. It concluded it would not be just and equitable to order a merits hearing where there would be no real evidence on either side. It considered that Morison J's judgment in Coote v Granada Hospitality Limited showed that Mr D'Souza's submission based on European law was "unfounded".[27]On 12 October 2000 Mr D'Souza applied for a review of the decision of the Booth tribunal. He relied on the complaints he had made at the hearing, argued that the Chairman, Mr Booth and his associates "were willing to play Lambeth's racist game by abusing their power, and that he had rushed the decision in order to promulgate it before 2 October 2000 and thereby evade liability under the Human Rights Act". His substantive grounds were primarily but not exclusively that the tribunal had erred in law and in the light of the decisions of the European Court of Justice in Coote and Emmott . Mr D'Souza's application was refused on 31 October 2000, coincidentally the same day that the Gleeson tribunal refused his third application made on 27 October for a review of the decision made by that tribunal on 13 August 1996.[28]Before the outcome of that review was known, on 25 October 2000 Mr D'Souza appealed against the substantive decision of the Booth tribunal. The grounds of appeal were those contained in the application for review made on 12 October. Following the refusal of the Booth tribunal to review its decision, on 16 November 2000 Mr D'Souza wrote to the Regional Chairman of the London South Employment Tribunals confirming that he would be appealing against the refusal of the review. At this stage, therefore, he had launched appeals to the Employment Appeal Tribunal in respect of the decision to hold a preliminary hearing, the substantive decision, and the Booth tribunal's refusal to review its decision.[29]The case came before the Appeal Tribunal presided over by Maurice Kay J (as he then was) on 19 December 2001. In its decision the Appeal Tribunal stated it had been put "fully in the picture as to the procedural complexity of Mr D'Souza's multifaceted litigation against the London Borough of Lambeth". It also referred to proceedings Mr D'Souza commenced after he brought the case that was decided by the Booth tribunal. The judgment of the Appeal Tribunal stated that the other proceedings:
"… go over a great deal of the same territory, although it is said there are some issues, which, as a matter of form at least, are not identically treated in each case. What is significant is that on 2 and 3 July 2001, there was a tribunal hearing described as a preliminary hearing, in which evidence was called and, eventually, submissions were made relating to the 1999, 2000 and 2001 applications"
. The preliminary hearing was by a tribunal chaired by Mr Snelson (hereafter, the "Snelson tribunal").[30]The Appeal Tribunal presided over by Maurice Kay J also stated that it was concerned that "amid this plurality of applications and appeals, there has developed a tendency for each to be considered separately from those which it closely resembles, reaching different procedural stages at different times". It considered that it would be inappropriate for it to determine the substantive appeal from the Booth tribunal before the outcome of the proceedings subsequently launched and which were before the Snelson tribunal. It adjourned the matter until the decision of that tribunal was promulgated. It also directed that any appeal by either party from that matter to the Employment Appeal Tribunal should be listed with the appeals from the Booth tribunal. At the beginning of April 2003 all these appeals came before the Appeal Tribunal presided over by Mitting J. We deal with the decision of that Appeal Tribunal after setting out the circumstances in the proceedings considered by the Snelson tribunal. Cases 2302685/99, 2306526/00, 2302456/01, EAT 0023/00, EAT 0466/02[31]The next three applications came before the Snelson tribunal. The first (case 2302685/99), made on 17 August 1999 was a claim under the Equal Pay Act 1970 in respect of Lambeth's refusal to reinstate Mr D'Souza. He requested the tribunal to disapply the six month time limit on the ground that until the ruling of the European Court in R v Secretary of State for Employment, ex parte Seymour Smith [1999] IRLR 253 it was impossible for him to raise this complaint.[32]The second application (case 2306526/00), made on 23 November 2000 alleged sex discrimination and victimisation contrary to the Sex Discrimination Act 1975 and the Equal Treatment Directive 76/207/EEC in respect of Mr D'Souza's dismissal, the non-hearing of grievances, and the suppression of evidence and provision of deceptive information. In respect of the last of these allegations he proceeded against Ms A McKane, one of Lambeth's lawyers. Mr D'Souza states in the application that it was not until the hearing of the case before the tribunal chaired by Mr Davis on 22 September 2000 that he learnt his chosen comparator had not been dismissed. He relied on European law as accepted by the Employment Appeal Tribunal in Levez vTH Jennings Limited [1996] IRLR 499 (for the subsequent decision of the European Court of Justice see [1999] IRLR 36 ). He submitted that as a result of European Law time for limitation purposes did not start running until 22 September 2000.[33]The third application (case 2302456/01) was made on 8 May 2001. It alleged sex and race discrimination and victimisation arising from a letter by Mr Curran of Lambeth Legal Services which, stated "I would invite you to withdraw your complaint forthwith, failing which I shall be applying to the tribunal for this claim to be dismissed with an order for costs against you". This letter related to the claim for sex discrimination and victimisation (case 2306526/00).[34]We have noted that preliminary points on these three applications were considered by the Snelson tribunal on 2 and 3 July 2001. The tribunal's decision dismissing all three applications was promulgated on 27 March 2002. The decision is 27 pages long. The tribunal stated (paragraph 24) that the equal pay claim lay outside the scope of the 1970 Act and was completely misconceived. An application to amend the originating application was dismissed and described (paragraph 22) as "hopeless". The argument that European law precluded the claims being barred by domestic time provisions were considered and the answer, contrary to Mr D'Souza's submissions (paragraph 26) said to be "clear and beyond sensible dispute". The tribunal noted that in Preston v Wolverhampton Healthcare NHS Trust [2001] IRLR 237 and Levez vTH Jennings Limited [1999] IRLR 36 ECJ the successful attack had not been upon the six month time limit for the presentation of claims but on the limitation under s2 (5) of the Equal Pay Act 1970 which purports to restrict claims under equality clauses to a period of two years immediately preceding the date of commencement of the proceedings. The Snelson tribunal concluded (at paragraph 29) that "it is beyond sensible argument that this claim is time barred". At paragraph 72 the tribunal stated that it had "reached the clearest conclusion that all three claims are plainly, and utterly, misconceived. They should not have been brought".[35]The Snelson tribunal also commented on the way Mr D'Souza conducted his cases. The litany of applications by Mr D'Souza "lacked any substance" and many of them "were wholly unarguable" (paragraph 73). It had difficulty in avoiding the impression that Mr D'Souza's principal desire was to prevent the hearing from being effective at all or to extend it as long as possible. He stated he wished to cross-examine "for as long as it takes" in circumstances where, "if hearing of any evidence was appropriate, the scope of the factual dispute was exceedingly limited." While not expressing a concluded decision, these features of the presentation of the case inspired in the tribunal "a considerable degree of scepticism". The tribunal regarded his offensive remarks about Mrs McKane and Mr Bryant as deplorable. They stated (paragraph 74) his routine allegations of grossly improper and unprofessional conduct on their part for which there was not the slightest foundation contributed to their doubts as to his good faith. They warned that "further wild and unfounded allegations will not only undermine his credibility but also expose him to the added risk of costs order". They stated (paragraph 75) that Mr D'Souza knew where competent advice could be sought either free or at modest expense but that they thought he was "fully aware that if he took his arguments to a lawyer worth consulting he would receive a disappointing response." In May 2002 Mr D'Souza appealed from the decision of the Snelson tribunal. The "Omnibus" Appeal in the EAT[36]The appeal from the Snelson tribunal, the three appeals from the decisions of the Booth tribunal, (to order the hearing of the time point as a preliminary issue, the substantive decision refusing to extend time, and the refusal to review the decision,) and the appeal from the decision of the Davis tribunal to refuse his fourth application that it review its substantive decision were heard by the Appeal Tribunal presided over by Mitting J on 1, 2 and 3 April 2003. An oral judgment was given at the end of the hearing and the written judgment was sent to the parties on 21 May 2003. With the exception of an appeal in relation to a costs order made by the Snelson tribunal, all of Mr D'Souza's arguments were rejected and his appeals dismissed.[37]As far as the appeals from the Booth tribunal are concerned, the grounds of appeal;(a) attacked the procedure adopted by the tribunal;(b) argued that Lambeth were not entitled to rely against him on the statutory time limits because the Sex Discrimination Act 1975 did not fully transpose the obligations in Council Directive 76/207/EEC into UK law and he was entitled to have his claim heard by the Employment Tribunal however long had elapsed since the facts which gave rise to it, and(c) alleged racial bias on the part of the Booth tribunal.[38]In relation to the procedure adopted by the Booth tribunal, Mr D'Souza argued that the tribunal should not have decided to consider time questions as a preliminary issue because they could not do so without considering all the facts and because the determination of preliminary issues infringed his rights under Article 6 of the European Convention on Human Rights . He also submitted that the gap of seventeen months between the hearing on 23 April 1999 and that on 29 September 2000 infringed his right to a hearing within a reasonable time under Article 6. The Appeal Tribunal stated (paragraph 20) that these criticisms could be answered shortly. It concluded that the Booth tribunal was entitled to order the preliminary hearing of the time limit question because neither disclosure of the documents Mr D'Souza sought nor the respondent's answer to his questionnaire were required to inform the tribunal of the facts necessary to decide the time question. Nothing in Article 6 or the Strasburg Jurisprudence prohibits the identification and determination of preliminary issues and in any event the Human Rights Act 1998 was not in force at the time when the Booth tribunal made its decision. As to the delay, apart from the fact that the Human Rights Act 1998 was not in force, the seventeen month gap, while unfortunate and while it might in ordinary circumstances give rise to concern, had in fact been explained: paragraph 22. Much of the delay was caused by the Chairman's illness, and delay was also caused by time required to enable the parties try to find documents the tribunal indicated it wished to see.[39]With regard to Mr D'Souza's argument that he was entitled to have his claim heard by the Employment Tribunal however long had elapsed since the facts which gave rise to it, the Appeal Tribunal considered the decisions of the European Court of Justice in Emmet v Minister for Social Welfare [1991] IRLR 387 , Marshall v Southampton and South West Hampshire Area Health Authority (No 2) [1993] IRLR 445 , Coote v Granada Hospitality Limited [1998] IRLR 656 , Rewe Zentralfinanz AG & Rewe-Zentral AG v Landwirtschaftskammmer für das Saarland [1976] ECR 1989 and Preston v Wolverhampton Health Care NHS Trust [2001] IRLR 237 . The decisions of the Employment Appeal Tribunal in Coote v Granada Hospitality Limited (No 2) [1999] IRLR 452 and the Court of Appeal in Rhys-Harper v Relaxion Group plc [2001] IRLR 460 were also considered. The Appeal Tribunal concluded that, after the enactment of section 2 (1) of the Sex Discrimination Act 1986 and the Sex Discrimination Equal Pay (Remedies) Regulations 1993 SI 1993/2798, the Sex Discrimination Act 1975 was at the latest on 22 November 1993 fully compliant with the Equal Treatment Directive (see paragraphs 33, 43-44). The Appeal Tribunal accordingly rejected Mr D'Souza's submission that no time limit applied to his claim: paragraph 45. It stated that to the extent that the 1975 Act did not properly transpose the Equal Treatment Directive into United Kingdom law that time limit may not have prevented a claim by the applicant as a state employee before 22 November 1993; but once the Act was brought into line with the Directive the special position of state employees ended. Mr D'Souza's claims for pre-22 November 1993 acts of unlawful sex discrimination therefore became time barred on 22 November 1993, subject to the power of the tribunal to consider an application if it was just and equitable to do so: paragraph 47. The Appeal Tribunal stated (paragraph 50) that the reasoning of the Booth tribunal in considering whether or not to consider Mr D'Souza's claim out of time "cannot be faulted".[40]The third substantial ground of appeal was an allegation of racial bias by the Booth tribunal against Mr D'Souza. Mr D'Souza's application for review of the decision complained of the biased way in which the proceedings were being conducted in that Lambeth's representatives were being unfairly assisted by the tribunal. It also quotes Mr D'Souza's reference to the case of Mr Kapadia as showing the "notorious anti-black bias of South London tribunals". Paragraph 7 of his application states, of a submission of Mr Bryant, counsel of the respondent, that:
"He now raises this issue because he knows that Chairman Booth and his colleagues are so deeply biased that they would clutch at straw which enabled them to deprive a black applicant of a remedy he is entitled to by law. I may mention that the use of this tactic demonstrates that Lambeth is confident that it can rely on the notorious anti-black bias of south London tribunals, and was also utilised by Lambeth in the case of Mr Kapadia who was dismissed by them. Mr Kapadia brought a claim under the Disability Discrimination Act but he lost before the ET. On appeal the EAT pointed out that the ET's decision was contrary to the undisputed evidence before the ET and made a finding that, in dismissing Mr Kapadia, Lambeth were guilty of discrimination. Lambeth appealed to the Court of Appeal on the ground that the EAT should have remitted the case to the ET but the Court of Appeal dismissed their appeal. It is unacceptable that Chairman Booth and his associates are willing to play Lambeth's racist game by abusing their power and seeking to reopen an issue which is covered by res judicata . The proper legal course for Lambeth, if it wants to reopen this decided issue, is to apply to the Court of Appeal or petition the house for the entire case to be reheard ab initio since the oral evidence of their witness on the subject of my references was vital to the 1995 tribunal decision."
[41]He also argued that the biased manner in which the tribunal conducted the proceedings was evidenced by the fact that his cross-examination of Ms McKane was constantly interrupted. Mr D'Souza had argued that in case 09349/90 a tribunal chaired by Miss Donnelly had found that Lambeth gave him discouraging references and that the Booth tribunal had erred in concluding that there was no evidence as to references because section 69 (1) of the Race Relations Act 1976 meant it was bound by the finding of the Donnelley tribunal. The affidavit in support of his application stated that "south London tribunals had earned a reputation for racial bias against black applicants particularly under Chairmen Booth, Davis and Gleeson".[42]The Appeal Tribunal presided over by Mitting J stated (at paragraph 55) that the specific criticism of Mr Booth is the subject of an undisputable judicial record. Mr Booth was the chairman of the employment tribunal which decided Mr Kapadia's claim, which a majority of the tribunal rejected. Mr Booth, was, however, in the minority and his view was upheld in the Appeal Tribunal and the Court of Appeal. The Appeal Tribunal presided over by Mitting J concluded (at paragraph 56) "the appellant's accusation against Mr Booth was false. This fact leaves us to treat the appellant's accusations of racial bias against the Employment Tribunals which have heard his claims with scepticism".[43]In relation to the appeal against the decision of the Davis tribunal to refuse the fourth application for a review of its substantive decision made on 19 September 1997, the Appeal Tribunal held that the decision of the Employment Appeal Tribunal promulgated on 22 July 1998 finally disposed of the proceedings commenced in that case. It stated (paragraphs 62-65) that finality of the Employment Appeal Tribunal's decisions is a necessary premise to the orderly functioning of the appeal system.[44]The third group of appeals arose out of the decisions of the Snelson tribunal. Although the Appeal Tribunal presided over by Mitting J refers to Mr Booth in the context of these appeals (see paragraphs 66-71) the case numbers and the references to the oral hearing on 2 and 3 July 2001 and to the contents of paragraph 41 of the decision make it clear that the reference is to the Snelson tribunal.[45]The Appeal Tribunal dismissed the appeal against case 2302685/99 on the ground that decisions of the Court of Appeal in Biggs v Somerset County Council [1996] ICR 364 and Preston v Wolverhampton National Health Service Trust [1996] ICR 899 held that individuals cannot enforce the Equal Pay Directive vertically against emanations of the state. However, the House of Lords in the Preston case held that the prohibition on referring a claim to an employment tribunal in respect of an equality clause relating to a woman's or man's employment, if she or he had not been employed in the employment within the six months preceding the reference, does not conflict with European Union law. It dismissed Mr D'Souza's appeal that the Snelson tribunal was not entitled to conclude that Lambeth did not deceive him as to the facts because it was satisfied that the tribunal's findings of fact upon this point were not perverse. Accordingly it was not entitled to upset them.[46]The Appeal Tribunal held that the appeals in case 2306526/00 failed for the reasons it had given in connection with the substantive appeals from the Booth tribunal.[47]The appeal in case 2302456/01 concerning the costs warning letter of 20 December 2000 was dismissed on the ground that the Snelson tribunal's decision was "plainly right" (see paragraph 81) in holding the letter did not constitute a detriment under section 6 (2) (b) of the Sex Discrimination Act 1975 or section 4 (2) (c) of the Race Relations Act 1976 because it was straightforward and courteous and did not amount to oppressive conduct, and because the tribunal was bound by the decision of the Court of Appeal in Rhys-Harper v Relaxion . The Appeal Tribunal noted Mr D'Souza's inability to acknowledge, let along explain, what it saw as the contradiction between this complaint and his complaint that he had not been warned by the Snelson tribunal that it was contemplating making an order for costs against him.[48]The Appeal Tribunal allowed Mr D'Souza's appeal from the costs order made by the Snelson tribunal on the ground that the tribunal should have taken into account the fact that the proceedings were brought and heard at a time when the 1993 Rules applied. Those rules did not permit the making of a Costs Order on the ground that the bringing of proceedings was misconceived and limited the costs to £500. After dismissing all other appeals the Appeal Tribunal stated at paragraph 92:
"We would advise the appellant that given the number, nature and conduct of the appellant's cases to date, all or which arise ultimately out of his dismissal and its consequences in 1990, the Attorney-General can apply for a Restriction of Proceedings Order under section 33 of the Employment Tribunals Act 1996 and may well do so, if he brings further proceedings arising out of essentially the same facts."
The Appeal Tribunal also stated that the making of accusations of racial bias against each of the tribunals was unnecessary and improper and the continuation of those accusations in the appeal process was itself unnecessary and improper and amounted to unreasonable conduct. For that reason the Appeal Tribunal made an order that Mr D'Souza should pay 25% of the respondent's costs of the appeal.[49]On 7 April 2003 Mr D'Souza applied for a review of the order of the Employment Appeal Tribunal presided over by Mitting J. The tribunal rejected this application on 15 April 2003. On 28 April Mr D'Souza served a Notice of Appeal from the decision of the Employment Appeal Tribunal. It also appears from Lambeth's comments on Mr D'Souza's application for permission to appeal that he submitted two further applications to the Employment Appeal Tribunal for it to review its decision. A principal ground of the application for permission to appeal to the Court of Appeal and the further reviews was that the Appeal Tribunal had, in the light of the decision in Marks & Spencer v Commissioner of Customs & Excise [2003] 2 WLR 665 , used the wrong test in deciding the case and whether to review its order. The European Court of Justice's judgment was delivered on 11 July 2002, nine months before the decision of the Appeal Tribunal, and the part of the Weekly Law Reports containing it was published on 21 March 2003, ten days before the decision of the Appeal Tribunal. The Appeal Tribunal refused the application on the ground that this case did not add to or affect its reasoning. Case 2305185/03; Case 2302297/04[50]On 16 September 2003 Mr D'Souza launched a further application arising out of his dismissal by Lambeth. The respondents are Lambeth London Borough Council, Mrs A McKane and Mr K Bryant, who are respectively Lambeth's solicitor and counsel. The application complains of unlawful discrimination and victimisation under the Race Relations Act 1976 and Community Directive 2000/43/EC, and unlawful harassment under the Race Relations Act 1976 and Directive, the Sex Discrimination Act 1975 and the Equal Treatment Directive 76/207/EC. The substance of the complaints are stated to be; grievances raised by Mr D'Souza before his summary dismissal were never heard; his appeal to the council was refused on spurious grounds; Lambeth refused to give him an agreed reference and gave bad and discouraging references about him; Mr Ouseley refused to comply with the Order to reinstate him; and Ms McKane and Mr Bryant claimed that he was dismissed for gross misconduct despite the determination of the Employment Tribunal that he had been unfairly dismissed and that his dismissal constituted unlawful direct race discrimination and victimisation. Mr D'Souza relied on European Community law as preventing the application of the limitation period in respect of these complaints until the 1975 and 1976 Acts were amended to give effect to the ruling of the European Court of Justice in R v Employment Secretary, ex parte Seymour Smith [1999] IRLR 253 . He also relied on the ruling in Levez vTH Jennings Limited [1999] IRLR 36 .[51]Lambeth applied to strike out this application on the ground that the complaints arise essentially out of the same set of facts as are contained in the numerous cases which Mr D'Souza has previously brought against Lambeth and Ms McKane. It also argued that Mr D'Souza is estopped from raising all the matters complained of save those in relation to Ms McKane and Mr Bryant. At the hearing of an employment tribunal chaired by Ms Wade on 28 January 2004 (hereafter the "Wade tribunal") Lambeth applied for an adjournment pending the resolution of the present application which had been made on 16 January 2004. The tribunal adjourned the case. It stated that no decision had been made as to the outcome of the preliminary hearing and that it was specifically not prejudging the outcome of the Attorney-General's application.[52]On 19 April 2004 Mr D'Souza launched another application against Lambeth and certain of its employees. Mr D'Souza's most recent application arises out of the adjournment of the Wade tribunal. He complains that the application to the Solicitor General by the respondents and Ms McKane and Mr Drury constituted unlawful race and sex victimisation and harassment. He argues it could constitute contempt of court in that it interrupted the proceedings of a duly constituted court engaged in the discharge of its statutory duty. He also names Mr Turek, who swore the affidavits on behalf of the applicant. The Applicant's Submissions[53]Mr Hoskins, on behalf of the Attorney-General, submitted that in the light of that recital of the litigation brought by Mr D'Souza, he is a vexatious litigant and that only the order sought in these proceedings will prevent him continuing as before. All the various proceedings relied on by the applicant relate to Mr D'Souza's employment with Lambeth London Borough Council which terminated in January 1990 and Lambeth's refusal to reinstate him following the finding of an Employment Tribunal in November 1992 that they had unfairly dismissed him. Mr Hoskins submitted that the circumstances surrounding the termination of Mr D'Souza's employment have been repeatedly raised in these proceedings at great cost in time and expense to the respondents and to the employment tribunals concerned and this Appeal Tribunal. They have had to consider arguments which are elaborate but misconceived. Mr Hoskins submitted that the litigation in the applications on which he relies has been fruitless and misconceived and without any practical advantage to Mr D'Souza. The complaints made against Mr Ouseley, other officers and Ms McKane in substance concerned the same matters.[54]Mr Hoskins relied on Mr D'Souza's repeated application for reviews after the tribunal decisions and in the appeals from the Gleeson and Davis tribunals after the decision of the Employment Appeal Tribunal of the substantive matter. He argued this showed a characteristic refusal to accept the decision of any tribunal. He noted that the Appeal Tribunal presided over by Charles J described the pattern of requests for review, appeals from the refusal or reviews, and simultaneous appeals against the substance of the decision in the Davis tribunal as an abuse of process. Mr Hoskins also relied on the statement in the request for a review of the Davis tribunal's decision that reasons be given "in order that my appeal against the refusal can be heard by the EAT at the same time as my appeal against the decision itself" as showing a determination to appeal whatever the decision or the reasons given for it. In August 1996 the Gleeson tribunal had concluded that, apart from the issue of time, it would have been prepared strike out the application because it contained no particulars whatsoever of the alleged discrimination. The Appeal Tribunal presided over by HH Judge Hull QC stated it was unable to find any fairly arguable point of law in Mr D'Souza's criticism of the Gleeson tribunal. Mr D'Souza subsequently made a third application for a review of the Gleeson Tribunal's decision three years after the Employment Appeal Tribunal had dismissed his appeal from the tribunal she chaired.[55]The Snelson tribunal described the applications before as "completely misconceived", and "hopeless" and stated that "it is beyond sensible argument that this claim is time barred" (see paragraph [34 of this judgment). It also condemned the way Mr D'Souza conducted that case in strong language (see paragraph 34 of this judgment), and Mr Hoskins submitted that the way Mr D'Souza conducted that case shows an intemperate attitude towards litigation. He submitted that the allegation of racial bias made to and about the Booth tribunal and indeed before this tribunal also shows such an attitude.[56]Mr Hoskins also submitted that Mr D'Souza's use of new cases as a generator for requests for review of previous decisions and further appeals shows that he is incapable of recognising the orthodox application of tribunal jurisprudence.[57]Finally Mr Hoskins relied on the institution of the proceedings before the Wade tribunal very soon after the careful consideration of his arguments in several appeals by the Appeal Tribunal presided over by Mitting J. He submits that in essence Mr D'Souza was seeking to do exactly what that Appeal Tribunal warned him not to do. The proceedings launched on 16 September 2003 substantially concern events around the termination of his employment and Lambeth's failure to reinstate him. The allegations of race discrimination now brought forward were ones which could have been brought in the early 1990s. Mr Hoskins submitted that the cause of action has been formulated differently in this application but its actual subject matter is the same.[58]Mr Hoskins argued this was also the case in respect of the earlier applications relied on in support of the application. In those the facts litigated in the first phase of Mr D'Souza's litigation against Lambeth were essentially re-presented clothed in a sex discrimination guise. He contends the application that came before the Wade tribunal is a further example of vexatious conduct. Moreover, the most recent application, made as a result of the Wade tribunal's decision to adjourn is, he submitted an entirely inappropriate reaction to that decision. He invited us to infer that unless an order under section 33 is made, fruitless applications that have been made for many years will continue to be made. The Respondent's Submissions[59]Mr D'Souza provided us with an eight page single spaced skeleton argument and the Statement of Truth to which we have referred. There is also a letter of 16 February 2004 to the Employment Appeal Tribunal inter alia listing some of the authorities he relies on and a further letter to the Registrar dated 19 May 2004. On the first day of the hearing, beginning soon after the short adjournment, he developed his arguments. He continued for the reminder of that afternoon and, on the second day of the hearing, during the morning and for a short time after the adjournment. In general terms Mr D'Souza asserts that he had a good cause for each piece of litigation and each application for a review of an employment tribunal's decision. He also maintained his complaints that South London Employment Tribunals in front of which he has appeared have been tainted by bias against him.[60]Mr D'Souza also submitted that in bringing this application the Attorney-General acted unlawfully under English law and European Community law and that the allegations are frivolous and vexatious in compelling him to take part in pointless litigation and in causing interruption of a legitimate hearing of his application by the Wade tribunal. He seeks damages including aggravated and exemplary damages against the Attorney-General. Mr D'Souza argued that although the Attorney-General had submitted that the issues raised were without practical advantage to him, he had suffered detriment. Taking the calculation of his loss by the Employment Appeal Tribunal presided over by Morison J in 1997 he argued the loss to him was now, with interest, in the region of £500,000.[61]Mr D'Souza submitted that he is entitled to revisit the merits of the individual cases relied on this application. This faced formidable difficulties in the shape of the decisions of the Court of Appeal in Attorney-General v Jones [1990] 1 WLR 859 and Attorney-General v Wheen [2001] IRLR 91. Those cases state that in applications under section 33 of the Employment Tribunals Act 1996 and section 42 of the Supreme Court Act 1981 it is not open to revisit the conclusions of the judges in the underlying proceedings. Mr D'Souza submits that Attorney-General v Jones only precludes consideration of the merits of the underlying cases where, as in that case(1) in the underlying proceedings, the judges concluded that the conduct was vexatious or had involved an abuse of the court, and(2) the underlying proceedings involved a determination of the merits of the cases. In the present application the underlying proceedings did not conclude Mr D'Souza was vexatious or abusive, and the decisions were all made at preliminary hearings so that the merits of the claims have not been the subject of a decision. Moreover, he contended the bar on revisiting merits does not apply where the decisions in the underlying proceedings were made without jurisdiction, as he argued they were in the underlying proceedings to the present application. This was because, when the tribunals considered Mr D'Souza's applications, there was no jurisdiction to consider claims by ex-employees because of the decision in Post Office v Adekeye . Mr D'Souza submitted that, although the Davis tribunal had assumed jurisdiction and considered whether it would be fair and equitable to extend time, it should not have done so because, at that time, as a result of Post Office v Adekeye , it had no jurisdiction in the matter.[62]Moreover, Mr D'Souza submitted that the wording of section 33 of the 1996 Act requires this Appeal Tribunal to be satisfied the underlying proceedings were vexatious or an abuse of process and that this tribunal cannot be so satisfied unless it considers the merits of the underlying proceedings.[63]Mr D'Souza also made the following submissions. First, that he was entitled to bring new applications and seek reviews of tribunal decisions when decisions of the European Court of Justice showed that the basis upon which employment tribunals applied the time limits and refused to extend time were wrong. He relied on the decisions of the European Court of Justice referred to earlier in this judgment and on Marks & Spencer v Commissioner for Customs & Excise [2003] 2 WLR 665 ; [2004] 1 CMLR 8 . He submitted that, once Post Office v Adekeye was seen to be wrong and overruled so that an ex-employee could bring proceedings for unlawful discrimination, he was entitled to seek reviews of the earlier tribunal decisions which had been made on an erroneous view of their jurisdiction and to make new applications. To do so could not, he submitted, be characterised as either vexatious or an abuse of process. Secondly, where an action was dismissed on the ground that the court or tribunal had no jurisdiction, a claimant could proceed again because there was no decision on the matter. Mr D'Souza relied on Heinz v Birkbeck College No 2 [1991] 4 All ER 450 and Arnold v National Westminster Bank plc [1991] 3 All ER 41, 49-50 in which Lord Keith of Kinkell asked:
"If a judge has made a mistake, perhaps a very egregious mistake, as is said of Walton J's judgment here, and a later judgment of the higher court overrules his decision in another case, do considerations of justice require that the party who has suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject matter, reopening that issue?"
Arnold's case concerned a decision on the interpretation of a rent review clause which subsequent cases had shown to be wrong. The House of Lords held that there was no issue of estoppel between the parties preventing the lessees from relitigating the matter and affirmed the decisions of the lower courts refusing the landlord's application to strike out the claim.[64]Mr D'Souza submitted that res judicata is the only form of abuse of process in English law and, as a result of the principle stated in the authorities in paragraph 61 above no res judicata or issue estoppel arose in respect of the proceedings upon which the Attorney-General relies. Accordingly he submitted he was entitled to bring new applications after Post Office v Adekeye had been overruled so that an employment tribunal could consider the exercise of its discretion on proper grounds taking into account the fact that until that decision had been overruled employment tribunals had no jurisdiction. Similarly, he was entitled to seek reviews of the decisions of tribunals so that they could consider the exercise of their discretion on proper grounds in the light of the changes in the law.[65]Thirdly, Mr D'Souza submitted that his applications and requests for reviews were not vexatious for a number of reasons:(1) they had not been made after a full adjudication on the merits;(2) in so far as the underlying cases relied on by the Attorney-General had not succeeded because the United Kingdom had not transposed European Directives to UK law it was not open to the Attorney-General to say that it was vexatious for Mr D'Souza to raise the claims again once UK law had been brought into line with the requirements of European law;(3) the legal basis of the claims in the sex discrimination cases brought since 1996 is fundamentally different from that in race discrimination cases; and(4) the case before the Wade tribunal was the first claim alleging race discrimination since 1990. There had been a gap of 13 years since the last such claim and his success rate when alleging race discrimination had been good. The application now made could not have been raised in the early 1990s because the tribunal's jurisdiction was precluded by Post Office v Adekeye . Proceedings against Sir Herman Ouseley were brought now because of the changes in the law as a result of the Race Relations Directive and the decision in Seymour Smith . Moreover, the case before the Wade tribunal involved some extra parties including the behaviour of the barrister and solicitors.[66]Fourthly, Mr D'Souza submitted that the Attorney-General could not properly rely on his allegations of bias against tribunals as evidence of vexation. The allegations were supported by reasoned arguments and were not vexatious. The tribunal presided over by Mitting J was wrong to say the allegation of bias against Mr Booth had been shown to be false. The allegation made was that Mr Booth was biased against Mr D'Souza. He was not alleging bias to Mr Kapadia as the Appeal Tribunal stated in its decision. Moreover, he suggested that the scenario in the Kapadia case was distinct. Mr D'Souza's argument is that employment tribunal chairmen, especially Mr Both, are biased against unrepresented black litigants but Mr Kapadia was represented.[67]Fifthly, Mr D'Souza submitted that making an order under section 33 of the 1996 Act would make it excessively difficult for him to exercise his rights under European Community law and would thus violate the principle of effectiveness.[68]Mr D'Souza also submitted that he was entitled to make the further applications because Lambeth had not provided necessary documents or responded to his questionnaires. Conclusions[69]Mr D'Souza's submission that we must revisit the merits of the underlying proceedings relied on by the Attorney-General is fundamentally flawed. The concern of a court faced with an application under section 33 of the 1996 Act is with the history of the proceedings and applications in the proceedings in employment tribunals and the Employment Appeal Tribunal and not with the factual or legal merits of the proceedings or applications. Section 33 does not distinguish between different types of underlying proceedings. It permits applications based on underlying proceedings in the form of preliminary decisions, actions struck out, applications for review, and applications for permission to appeal as well as what Mr D'Souza described as full decisions on the merits. There is no reason in principle for concluding that, in considering an application under section 33, the Appeal Tribunal is only precluded from considering the merits of the underlying decisions if they were "full decisions on the merits". That this is so is seen from the Divisional Court's decision in Attorney-General v Oakes CO/1860/99 15 February 2000, affirmed [2001] EWCA Civ 1297 . That case concerned an application for an order under section 42 of the 1981 Act. Some but not all of the underlying cases relied on had been struck out. The Divisional Court stated that Mr Oakes was not entitled to go into the fine detail of the facts upon which his various claims were based. It did not make a distinction between the cases and applications that were struck out and those that were not. Similarly, there is no reason to confine the principle of Attorney-General v Jones to situations in which the judge in the underlying proceedings has said they were frivolous or vexatious or an abuse. This was not in fact the case in all the underlying proceedings in Attorney-General v Wheen [2000] IRLR 461, affirmed [2001] IRLR 91. Similarly we reject the argument that the principle in Attorney-General v Jones and Attorney-General v Wheen has no application if the underlying proceedings involved a tribunal refusing jurisdiction. The institution of proceedings against a tribunal which does not have jurisdiction may be vexatious and, if this is done habitually and persistently and without any reasonable ground, will justify an order under section 33. The practical difficulties that arise if a court considering an application under section 33 were to examine the merits of the underlying cases also arise in cases where the tribunal has refused jurisdiction. The appropriate response of an applicant who considers that a court of tribunal has wrongfully refused jurisdiction is to appeal against the decision or, in an appropriate case, to seek relief by way of judicial review against that refusal of jurisdiction.[70]For the reasons we have given, we are not concerned with the merits of the conclusions in the underlying decisions. If those conclusions were or were thought by Mr D'Souza to be erroneous his remedy was to appeal. Mr D'Souza has not been successful in the appeals he has mounted, in his application for reviews, or in his applications for permission to appeal to the Court of Appeal. We observe that in so far as he has had any arguable claims, he has not lacked opportunity to bring them before employment tribunals, and the Employment Appeal Tribunal.[71]Mr D'Souza's submission that he is entitled to continue to bring actions because both European and domestic law enable this is one that has been considered and been rejected by several tribunals, and most recently by the Appeal Tribunal presided over by Mitting J. We observe that what has occurred is not a single application based on the non-conformity of United Kingdom legislation with European Directives but a series of new applications and applications for reviews. These were brought notwithstanding that, as stated by the Appeal Tribunal presided over by Mitting J, the Sex Discrimination Act has been compliant with the Equal Treatment Directives since 22 November 1993, well before any of the proceedings upon which the Attorney-General relies were instituted. What is significant here is the number of applications and their timing.[72]The submissions based on Heinz v Birkbeck College (No 2) were considered by the Snelson tribunal and rejected as having no application to the facts before that tribunal. We note that in Heinz v Birkbeck College (No 2) the application was dismissed on the sole ground that the court had no jurisdiction. In the underlying cases before us, with the exception of the Snelson tribunal in relation to the costs warning, the tribunals considered whether to extend time on the just and equitable ground but decided not to. Arnold v National Westminster Bank plc was a case in which a lease provided for rent reviews at yearly intervals and the landlords sought to prevent the tenants from arguing at the second rent review that the construction of the clause in the first review was wrong. The case has no application to the facts of the underlying proceedings before us.[73]As far as the effect of the reversal of Post Office v Adekeye is concerned, we also observe that the applications based on European law that came before the Gleeson, Davis, Booth and Snelson tribunals did so while Mr D'Souza's and the other appeals to the House of Lords specifically to consider the decision in Post Office v Adekeye were pending. Mr D'Souza was thus seeking to raise the very matter which was due to be decided by the House of Lords before those tribunals.[74]We accept the Attorney-General's submissions that after the race discrimination claims in the first phase of the Mr D'Souza's litigation against Lambeth did not produce a substantial award of damage reflecting the assessment of Mr D'Souza's full loss by the Appeal Tribunal presided over by Morison J, the allegations made at that time about his dismissal and Lambeth's failure to reinstate were re-presented as cases of sex discrimination and breach of the Equal Treatment Directive. Since Mr D'Souza had been dismissed in 1990, for these applications to proceed it was necessary for employment tribunals to extend time. The employment tribunals concerned rejected Mr D'Souza's applications to extend time and the Employment Appeal Tribunal considered that the applications had been properly considered by the tribunals. The Snelson tribunal notes that Mr D'Souza knew of the potential for a sex discrimination claim at the time of his dismissal but did not pursue it. We accept the submission that the tribunals considering extending time were primarily concerned with whether there were just and equitable grounds for doing so and that the Post Office v Adekeye point barely featured in their decisions. They were orthodox applications of the ordinary principles relating to claims brought out of time.[75]We do not accept Mr D'Souza's argument that the sex discrimination cases since 1996 should be disregarded in assessing whether the claim brought on 16 September 2003 and now before the Wade tribunal is vexatious or abusive. While the Wade tribunal has made no findings and we do not know whether, if the matter proceeds, they will accede to the submissions made by Lambeth and the other respondents to that application, we do take into account that the claim was instituted with regard to Lambeth's failure to reinstate Mr D'Souza and its provision of references soon after the final dismissal of similar claims founded on the Sex Discrimination Act and notwithstanding that these issues were before tribunals considering whether there had been race discrimination or victimisation in the early 1990s.[76]It is unarguable that the only form of abuse of process is res judicata . It is clear that an attempt to relitigate in another action issues which have been fully investigated and decided in a former action may constitute an abuse of process, quite apart from any question of res judicata or issue estoppel: Bragg v. Oceanus Mutual Underwriting Association (Bermuda) Ltd. and C.E. Heath & Co. (Marine) Ltd [1982] 2 Lloyd's Rep. 132; Department of Education and Science v Taylor [1992] IRLR 308; Staffordshire County Council v Barber [1996] ICR 379. In Attorney-General v Barker [2001] FLR 759 Lord Bingham states that the term "abuse of the court's process" includes "using that process for a purpose or in a way significantly different from its ordinary and proper use". Mr D'Souza accepted that a claim brought in bad faith would be an abuse of process although not res judicata . Abuse can also include the bringing of two or more sets of proceedings in respect of the same subject matter, whether concurrently or serially.[77]We reject Mr D'Souza's submissions on his allegations of bias. We consider it clear from the context of the allegation made against Mr Booth in Mr D'Souza's application for a review of the decision of the Booth tribunal that the Kapadia case was given as an example of such bias. It was, as the Appeal Tribunal presided over by Mitting J stated, untrue. Mr D'Souza persisted before us in his unparticularised accusations of bias against Chairmen who have made decisions in his cases. Making such allegations in this unparticularised and general way is vexatious and an abuse of process.[78]We turn to Mr D'Souza's submissions that his applications were justified because Lambeth had dishonestly withheld documents and information about his claims. The Snelson tribunal found that there was no wilful withholding of evidence and the Appeal Tribunal stated that this finding was unchallengable. We consider it an abuse of process to raise this again after its dismissal by the Employment Appeal Tribunal.[79]Finally, Mr D'Souza submitted that making an order under section 33 will make it excessively difficult for him to exercise his rights under European Community law and thus contravenes the principle of effectiveness. It is, of course, true that making an order under section 33 restricts an individual's ordinary right of access to employment tribunals and to this tribunal and is a serious step which is not to be taken lightly. A tribunal determining an application under section 33 has to strike a balance between the prima facie right of a person to institute proceedings in employment tribunals and the reasonable protection of those who are repeatedly subject to abusive claims.[80]The right of access to a court or tribunal is an important right: see, for example, R v Lord Chancellor, ex parte Wilham [1998] QB 575 . It is, however, not absolute and may be subject to limitations: see, for example, R. v Immigration Appeal Tribunal, ex parte S [1998] Imm AR 252. An order under section 33 does not entirely exclude the vexatious litigant's access to tribunals. It subjects it to a leave requirement. Section 33 (4) of the 1996 Act provides that leave for the institution or continuance of proceedings or applications shall not be given unless the Employment Appeal Tribunal is satisfied that the proceedings or application are not an abuse of the process of the tribunal in question and that there are reasonable grounds for the proceedings or application. If leave is refused it is because this tribunal is not satisfied that the proceedings or application are not an abuse of the process of the tribunal or that there are reasonable grounds for the proceedings or application. In the context of the equivalent section 42(3) of the Supreme Court Act 1981 Lord Bingham LCJ stated "that is not a high threshold to cross": Attorney-General v Oakes Divisional Court 15 February 2002, affirmed [2001] EWCA Civ 1297 .[81]In Attorney-General v Wheen [2001] IRLR 91 the restriction imposed by an order under section 33 was upheld as compatible with Article 6 (1) of the European Convention on Human Rights . Keene LJ stated that it is "wholly unarguable that section 33 of the Employment Tribunals Act conflicts with the European Convention on Human Rights". See also the decision of the European Commission on Human Rights in H v United Kingdom App No 11559/85; 45 DR 281.[82]With regard to European Community Law, since section 33 provides for access to employment tribunals and to this tribunal so long as permission is obtained, we do not consider that a restriction of proceedings order under section 33 makes it excessively difficult to exercise rights so as to contravene the principle of effectiveness. Just as the requirement of permission in judicial review applications is not inconsistent with the principle of effectiveness, so the requirement of permission following an order under section 33 is not so incompatible.[83]We conclude that the applicant has established there was no good cause for Mr D'Souza to bring these many applications. The tribunals which have dealt with them have in our view done so carefully, courteously and patiently. In many of them they have nevertheless commented that the applications and arguments made by Mr D'Souza have no merit, seek to relitigate matters decided, and are pursued in an inappropriate manner. We are persuaded that Mr D'Souza has habitually and persistently engaged in proceedings and applications with no merit and refused to acknowledge decisions given against him which he repeatedly seeks to review and appeal and, even after an unsuccessful appeal, seeks to review them again.[84]We doubt that the first of the applications alleging the dismissal and non-reinstatement constituted sex discrimination and breach of the Equal Treatment Directive was unreasonable. After the Appeal Tribunal dismissed the appeal from the Gleeson Tribunal, the position changed. By the time the Appeal Tribunal dismissed the appeal from the substantive decision of the Davis Tribunal in July 1998 there was no reasonable ground for Mr D'Souza's subsequent new applications which came before the Snelson tribunal and the applications to review that tribunal's decision. There was also no reasonable ground for the further applications for reviews made to the Davis tribunal and the appeals from the refusals of reviews. His most recent application based on Lambeth's application that the Wade tribunal adjourn pending this application is an entirely inappropriate response and is illustrative of Mr D'Souza's attitude to litigation. This attitude is also shown by his application to us in these proceedings that we review the decisions of the Employment Appeal Tribunal in the underlying proceedings.[85]What we have described as the second phase of Mr D'Souza's litigation against Lambeth exhibits all of the hallmarks of persistent and habitual litigious activity identified by Lord Bingham in Attorney-General v Barker [2001] FLR 759 in the passage we set out in paragraph 4 of this judgment. He sues the same party, Lambeth, repeatedly. He has also issued proceedings against Lambeth's former chief executive, Sir Herman Ouseley and Ms McKane, one of its lawyers. He relies on essentially the same cause of action. In all but one of the cases relied on by the applicant, this is sex discrimination and breach of the Equal Treatment Directive in respect of his dismissal, non-reinstatement, and, in several of them, it is in respect of the provision of references by Lambeth. He has challenged every adverse decision either on appeal or by repeated requests for reviews of decisions. Although in the first phase of his litigation he enjoyed some success, in the second phase he has not. His applications and appeals have been pursued tenaciously and vigorously, but without any success. In short, in Lord Bingham's words, he keeps "on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop".[86]For these reasons we have concluded that the conditions for making a restriction of proceedings order under section 33 are satisfied and that it is appropriate to make such an order. We consider that in the circumstances of this case the order should remain in force indefinitely.