Attorney General v. Roberts [2005] UKEAT 0058_05_2505

EAT
Attorney General v. Roberts
[2005] UKEAT 0058_05_2505 · 2005-05-25
[1]This is an application, by notice dated 17 December 2004, by Her Majesty's Attorney General under section 33 of the Employment Tribunals Act 1996 . It is for a "restriction of proceedings order" against the respondent, Mr James Roberts. The Attorney General was represented before us by Mr Thomas Linden. Mr Roberts was unrepresented and did not appear in person.[2]The hearing was originally fixed for a date in April, to which Mr Roberts objected because it clashed with the trial of a libel action he had brought against Sefton Metropolitan Borough Council, which was due to commence on 25 April. He asked for this hearing to be re-listed in late May or June. It was so listed for a day and a half hearing commencing yesterday, 24 May. There is no doubt that Mr Roberts knew of that date. On 23 May, he applied by letter for an adjournment of the hearing on medical grounds, which the applicant opposed and which the Deputy Registrar refused. As we will explain, it is typical of Mr Roberts that he should have sought such a last minute adjournment, and a pre-reading of the papers showed that it was predictable that he would do so in respect of this application as well.[3]We have ourselves considered whether we should grant Mr Roberts the adjournment which he requests, which is one until July 2005. Despite the potential importance to him of this application, and our consequential concern about dealing with it in his absence, we could see no justification for adjourning the application and so we did not adjourn it. We will come later to the particular grounds upon which Mr Roberts relies, and there explain more fully our reasons for not adjourning the application. We have, therefore, heard the applications in his absence. The applicable law[4]Section 33, headed "Restriction of vexatious proceedings", provides as follows:
"33(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) A copy of a restriction of proceedings order shall be published in the London Gazette and the Edinburgh Gazette."
[5]The Attorney General asserts that in this case both limbs of section 33(1) are satisfied and he asks for an unlimited order against Mr Roberts. By way of guidance to the relevant principles, Mr Linden referred us first to the decision of the Divisional Court in Attorney General v Barker [2000] 1 FLR 759 , which related to an application under section 42 of the Supreme Court Act 1981 for a civil proceedings order against the respondent, the terms of which section are similar to those of section 33. Lord Bingham of Cornhill, then the Lord Chief Justice, gave the leading judgment, with which Klevan J agreed, and pointed out first that before the court can make an order under section 42 it must be satisfied that the statutory pre-conditions to an order are made out, their equivalent in the present case being those in section 33(1). If they are, the court then has a discretion as to whether or not to make the order sought. At page 764, Lord Bingham said this:
"I am satisfied on the facts adduced in evidence before us that Mr Barker has instituted vexatious civil proceedings. '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. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all. I am furthermore satisfied that these vexatious civil proceedings have been instituted without any reasonable ground. All the proceedings have been struck out; none has gone to trial; none has been settled. Leave to appeal against Alliott J's striking out order in relation to the 19 actions was refused. In truth, none of these actions could have succeeded." and a little further on: "
From extensive experience of dealing with applications under section 42 the court has become familiar with the hallmark of persistent and habitual litigious activity. 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."[6]Most cases of allegedly vexatious litigants, as Lord Bingham there points out, concern repeated claims or applications in respect of one particular matter by which the litigant has become obsessed, commonly involving the same defendant or defendants. In the employment law field this is a less common feature. Instead, what is commonly seen is the making of repeated applications of a like type to employment tribunals, usually against different respondents but founded on the like basis. In this case, the pattern of Mr Roberts' repeated applications to employment tribunals is that they allege a discriminatory refusal to give him a job for which he has applied on the alleged ground of his trade union membership and connections. The Attorney General knows of at least 24 applications he has made to employment tribunals and, with some exceptions, the respondents are all different. This feature is, however, no bar to a case being made out under section 33, as of course section 33(1)(a) makes plain.[7]Mr Linden also referred us to the decision of this tribunal, Lindsay J, the President, presiding, in Attorney General v Wheen [2000] IRLR 461. Mr Wheen had issued 13 separate proceedings. As in the present case, some of Mr Wheen's cases were the subject of orders under rule 7(4) of the Employment Tribunals Rules of Procedure 1993 . That is a provision which empowered the tribunal, if it considered that the application had no reasonable prospect of success, to order the applicant to pay a deposit, not exceeding a specific amount, as a condition of being permitted to continue with the application. This appeal tribunal made the order sought against Mr Wheen who did not attend the hearing any more than Mr Roberts has attended this one. But he had made a number of points in writing, as has Mr Roberts to us. We refer to the following passages in Lindsay J's judgment as pertinent also to the questions before us. In paragraph 6, Lindsay J said:
"(8) Mr Wheen takes the point that in a number of the cases complained of an order was made by the relevant tribunal under Rule 7(4) of the Employment Tribunals Rules of Procedure 1993, which says this: "(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter."
Sub-rule (5) says this:
"No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit."
Mr Wheen takes the point that every time an order has been made against him under rule 7(4) he has not sought to take the case further. Whereas, he says, a truly vexatious litigant would have pressed on regardless. But what is borne against him, and which is something which the making of unappealed orders under rule 7(4) indicates, is his frequent launching of proceedings which have no reasonable prospect of success. True it is that it could be said to be even more vexatious if he had paid the deposit and had gone ahead and had lost but that does not mean that there is no vice in the launching of the proceedings in the first place, given that they are ruled on as having had no reasonable prospect of success." Then a little further on:
"(10) A feature which distinguishes Mr Wheen's case from many other cases against allegedly vexatious litigants is that he does not, in general, repeatedly sue the very same respondent, nor does he obsessively, as is not uncommon, return to the one event or the one series of events. We bear that in mind. But the Act applies whether or not one sees the same respondent recurring; section 33(1)(a) expressly so provides and there is no restriction, either, that it is only the same events that have to be relied upon. Indeed, if the Act contemplates, as it does, that there can be different respondents, it is not unlikely that there will be different events being relied upon."
We also refer to Lindsay J's observations in paragraph 11 as follows:
"Further, in favour of the Attorney General's application at the discretionary level, we have to recollect that one object of section 33, as is emphasised in the Barker case, on similar legislation, is to protect respondents from the cost and anxiety of proceedings which are vexatious. But we would wish to add that another object is to be borne in mind and that is this: in the very busy Employment Tribunals up and down the country and in the very busy Employment Appeal Tribunal, giving time to Mr Wheen's unnecessary proceedings, proceedings without reasonable grounds, proceedings with no real prospect of success, is to deny that very same time to parties who have real grievances. The effect is that those with real grievances have their hearings delayed. That is a matter we are entitled to take into account and it further inclines us to exercise the discretion in favour of the Attorney General's application. Indeed, considering as best we can the matters raised not only on behalf of the Attorney General by Mr Jay but also those contrary points raised in Mr Wheen's skeleton argument, we see this to be a proper case for an order under section 33 to be made against Mr Wheen."
[8]Mr Wheen appealed to the Court of Appeal against that decision, and this time he appeared in person. The appeal was dismissed and the decision is reported at [2001] IRLR 91. The leading judgment was given by Keene LJ. At paragraph 26 he said this, which may have some minor relevance to the present case:
"It is, of course, the case that some of the industrial tribunal decisions relied on by the Attorney General have appeals outstanding in them which have been stayed pending the outcome of these proceedings. But I accept Mr Jay's submission on this that such proceedings can still be relied on in respect of a section 33 application, even though an appeal is pending. One can rely on what the court or tribunal of first instance has decided – that is to say, that these particular applications were frivolous or vexatious or an abuse, or had no reasonable prospect of success. Such a decision is still a decision of that body, whether it be a court or tribunal, and cannot be disregarded. It still has evidential value and the relevance of such a decision cannot be removed simply by means of lodging a notice of appeal. Nor would it in my judgment be proper for the tribunal or court dealing with a section 33 order to seek to go behind that decision in the individual case. To adopt such a process before a court or tribunal considering an application under section 33 would mean lengthy re-litigation of matters which were properly to be dealt with by the lower body."
Having read that passage we should, however, observe that in fact we are not aware that there are any current appeals outstanding.[9]At paragraph 29, Keene LJ agreed with the EAT's observations on the rule 7(4) point, which we have quoted. Keene LJ also rejected the argument that a section 33 order infringes the human rights of the respondent to bring proceedings before employment tribunals. That is relevant because we understand Mr Roberts to make a similar point. Keene LJ said:
"37. Finally, Mr Wheen argues that the section 33 order amounts to a breach of his human rights. He says that there has been a breach of his right to work and there has been a breach of his rights simply because he has been stopped from taking proceedings before employment tribunals. Reliance is placed by him on the Human Rights Act 1998 and, of course, the incorporation of the European Convention on Human Rights. 38. One can observe that the right to work is not a right in our domestic law or under the European Convention on Human Rights, but of course there is a right of access to the courts under Article 6 of that Convention – the right to a fair trial. That is not an absolute right. A balance has to be struck between the right of the citizen to use the courts and the rights of others and the courts not to be troubled with wholly unmeritorious claims. The administration of justice has to be taken into account. But in any event the order which has been made against Mr Wheen provides for access to the employment tribunal system by him so long as permission is obtained. That is a necessary feature of an order obtained under section 33. That is a familiar feature of many proceedings which take place in our judicial system. It is not something which in my judgment can amount to a breach of Article 6. Access to the courts is not prohibited; it is provided for on certain terms. It is in my judgment wholly unarguable that section 33 of the Employment Tribunals Act conflicts with the European Convention on Human Rights."
Mummery LJ agreed and Nourse LJ delivered a short concurring judgment. The evidence on this application[10]The application is supported by an affidavit of Richard Dingwall, sworn on 13 December 2004. By an order of 21 January 2005, the Registrar of this tribunal ordered Mr Roberts to lodge a notice of appearance and serve an affidavit in answer. His notice of appearance was lodged at the tribunal on 7 March. He asserted in it that:
"I INTEND TO VIGOROUSLY RESIST THIS TAINTED, POLITICALLY MOTIVATED APPLICATION. THE APPLICANT SHOUD BE ARRAIGNED FOR CONSPIRACY TO PERVERT THE COURSE OF JUSTICE, AND SACKED FROM HIS JOB FOR CORRUPTION."
That notice was accompanied by Mr Roberts' answer to the application. It is phrased in immoderate terms, describing the Attorney General as "Tony's Crony". It asserts that the application is an abuse of the legal process, one said to involve a gross violation of the principle of the separation of powers. It asserts that it is "a wholly politically motivated application designed to interfere with, and prejudice, a High Court action against Labour-controlled Sefton MBC for libel and slander, due to commence on 25 April 2005."[11]Mr Roberts did not in fact attend that trial, as he explains in his skeleton argument. He said he was suffering from an ankle ligament injury, which he explained to the court. Tugendhat J, the trial judge, proceeded with the case in his absence and dismissed the claim. Again, such non-attendance is entirely consistent with the pattern of Mr Roberts' approach to litigation he commences, as we shall show. The answer goes on to allege that the Attorney General's application involves:
"Flagrant violation of my human and legal rights, and a total dereliction of duty on the part of Employment Tribunals, and the EAT, to enforce the law regarding blacklisting of trade union members."
[12]In paragraph 4, Mr Roberts claims to "cross-appeal" against two particular pending EAT appeals, numbers PA/1459/04 and PA/1655/04. In paragraph 5 he sets out his "grounds of appeal", which appear in fact to be further grounds of resistance to this application. Paragraph 5 asserts that the application represents an attempt to "trample all over my human and legal rights and this abuse of power is solely inspired by political malice and discrimination." It further asserts that the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 require tribunals to deal with cases justly, something that he says the tribunals and the EAT have repeatedly and routinely flouted. There is, of course, no question of us entertaining any "appeals" against any of the matters Mr Roberts has been involved in. This application is solely between the Attorney General and Mr Roberts, and none of the other parties to the many tribunal applications Mr Roberts has instituted over the years is before us.[13]On 18 April 2005, Mr Roberts lodged an unsworn affidavit at this tribunal in answer to Mr Dingwall's evidence. That did not comply with the Registrar's order of 21 January, since an unsworn affidavit is not an affidavit at all. On 4 May, the Registrar directed him to swear an affidavit in answer and to lodge the original copy of it by 10 May. Mr Roberts complied with that direction on 9 May, his sworn affidavit being lodged on 10 May. The affidavit is a three-page one. It is expressed in similarly intemperate terms. Mr Roberts asserts that the Attorney General's application is corrupt, politically motivated, and a gross abuse of the legal process. He again asserts that it was designed to interfere with his libel action, scheduled to commence on 25 April, one, of course, which he did not attend and which was dismissed. He asserts that it is inspired by political malice and hatred:
"3. … with a Labour Government holding hands with Labour controlled Sefton MBC and seeking to erase my human and legal rights to oppose illegal blacklisting of myself – stretching back 30 years – for being an active Trade Unionist and Socialist, implacably opposed to the Labour Party's abandonment of Socialist principles (formerly Clause 4 of the Labour Party Constitution) upon which that Party was founded at the start of the 20 th Century. Tony Blair and his disreputable, dishonest, war-mongering ilk despise loyal Socialists like myself precisely because, unlike him and his cronies, we are loyal to the ideals and aspirations of genuine Socialism – and not to the monstrous caricature of Socialism, otherwise known as Stalinism, that misruled the former Soviet Union, and the former Soviet bloc in Eastern Europe, until the 1990s. That same caricature still disfigures contemporary China. 4. All of my applications to Employment Tribunals, and all of my appeals to the Employment Appeal Tribunal (EAT), have fallen victim to a politically motivated conspiracy to pervert the course of justice, and to deny me the protection of legislation outlawing blacklisting of Trade Union members."
[14]In paragraph 5, he asserts that this conspiracy began under the last Conservative Government. In paragraph 6, he asserts that Mr Dingwall's affidavit is a "politically inspired tissue of lies from start to finish, and I refute and deny all of the mendacious allegations contained therein in their entirety". His affidavit continued in a similar vein, again asserting that the application is directed at infringing his human and legal rights, that "this application has no basis in law and is a fabrication from top to bottom", and that, in paragraph 12:
"Politically motivated discrimination is illegal under Article 14 of the European Convention. As this application is rooted entirely in such politically motivated discrimination against a Socialist it is illegal and a manifest abuse of the legal process. A ( sic) Employment Appeals Tribunal basing itself upon the law, justice and respect for the Constitution would reject this application out of hand, with suitably punitive costs and damages to myself."
He adds an abusive appendix relating to a particular judgment given by this appeal tribunal (by His Honour Judge McMullen QC) in relation to one of his appeals on 13 December 2004, to which we will return.[15]We have summarised enough of Mr Roberts' written contributions to this application to show that they do not condescend to any particulars as regards the case made by the Attorney General against him. The essence of that is that the pattern of Mr Roberts' conduct in relation to his many tribunal applications shows, so the Attorney General claims, that he has habitually and persistently instituted vexatious proceedings and/or made vexatious applications in such proceedings.[16]Schedule 1 to Mr Dingwall's affidavit gives a summary of the tribunal applications that Mr Roberts has made of which Mr Dingwall is aware. The schedule lists some 24 tribunal applications between August 1998 and July 2004, and summarises their outcome. Supporting documentation in relation to each application is also exhibited. Nearly all the applications are based on the assertion that Mr Roberts has been denied an employment opportunity by a prospective employer, being a denial he then claims is because of his trade union membership, placing reliance on section 137 and/or 138 of the Trade Union and Labour Relations (Consolidation) Act 1992 . Those sections provide, so far as material:
"137 Refusal of employment on grounds related to union membership (1) It is unlawful to refuse a person employment- (a) because he is, or is not, a member of a trade union, or (b) because he is unwilling to accept a requirement— (i) to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or (ii) to make payments or suffer deductions in the event of his not being a member of a trade union. (2) A person who is thus unlawfully refused employment has a right of complaint to an employment tribunal. … 138 Refusal of service of employment agency on grounds related to union membership. (1) It is unlawful for an employment agency to refuse a person any of its services - (a) because he is, or is not, a member of a trade union, or (b) because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union. (2) A person who is thus unlawfully refused any service of an employment agency has a right of complaint to an employment tribunal. …"
[17]Mr Roberts' various claims under such heads were sometimes accompanied by complaints of sex discrimination, breaches of the Human Rights Act 1998 or of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 . Mr Dingwall is aware of only two of Mr Roberts' applications in which the 1992 Act has not provided the main basis. He is aware of one claim that was settled, but is otherwise unaware of any claim having succeeded.[18]Dealing first generally with the evidence, the picture which emerges from it is as follows. Some 15 of Mr Roberts' cases were dismissed on his non-attendance, usually after an unsuccessful application to adjourn, but in at least one case (case 16) without any prior warning or application. In two cases (cases 12 and 17) he walked out of the hearing. He attended only five substantive hearings (cases 1, 1A, 15, 18 and 20) which all failed on the merits. In five cases (3, 4, 7, 9 and 22) he was ordered to make a deposit on the grounds that his claim had no reasonable prospect of success; in each case he failed to pay the deposit and his claim was struck out. In five cases (1, 2, 14, 15 and 17) his claims were dismissed in emphatic terms. In nine cases he was ordered to pay costs. The making of such costs orders is unusual, if not exceptional, in employment tribunals and reflects the tribunals' assessment of his conduct, or misconduct, of the proceedings.[19]The most striking feature of the pattern Mr Roberts' claims is the frequency of his applications to postpone the hearings, usually some time after they were fixed and usually only shortly before the hearing date. In several cases there were repeated such applications. Reasons range from clashes with unspecified commitments to attending his son's football match. He frequently asserts that he has an ailment which prevents his attendance, but rarely provides proper supporting medical evidence. In some cases the tribunals found that his claimed ground for a postponement was untrue, or that he had not deal with the tribunal in good faith, had no intention of attending and had timed his application to cause maximum inconvenience and cost to the respondent.[20]Another feature of the claims is Mr Roberts' refusal to accept the tribunals' decisions. He has frequently renewed failed adjournment applications and has repeatedly and unsuccessfully sought reviews of tribunal decisions. He has made several appeals to this tribunal. It is also typical for him to allege bias in intemperate terms against the tribunal, as for example in cases 1, 1A, 2, 6, 8, 9, 10, 11, 13, 16, 17, 19, 20, 21 and 23. He accused the chairman in case 11 of acting out of political spite and malice. In two cases, as we have said, 12 and 17, he walked out. He has provoked the strongest condemnation by tribunals. We have referred to Mr Roberts' written grounds of opposition to this application, which are expressed in just the sort of scandalous language that the tribunals have criticised.[21]We summarise the various cases to which Mr Dingwall refers. Before doing so, and in order to explain Mr Roberts' background more fully, we quote first from paragraphs 7 and 8 of the employment tribunal's extended reasons in case 15:
"7. We heard extensive evidence from the applicant, who has described his trade union past in more detail than he put in his written application form. He further explained graphically his strongly held socialist views and how he believed those had been held against him. The college, he presumed, must have taken soundings and made telephone calls in order to find out about his past activities, both on the political front and the trade union front. The applicant describes himself as being notorious in the Merseyside, Wirral and Wallasey area. He has been a "thorn in the side" of the TUC, and latterly of the Labour Party. He is one of many people who, as a committed Socialist, no longer supports the values of the current Labour government. He resigned from the Labour party in 1995. He also ceased his membership of the National Union of Journalists in 1999, but he is currently a member of the National Union of Teachers. 8. His experience in the last eleven years prior to the application has been as a supply teacher to secondary schools throughout the Merseyside, Cheshire and Lancashire areas teaching 11-18 year olds History, English, and Media Studies, both at GCSE and 'A' Level. We have no reason to doubt the applicant's capabilities in all those fields. He was on the top scale for a teacher in July 1987. After a year's full-time study he achieved a post graduate Certificate of Education from the University of Manchester. The applicant has also been a freelance journalist, to some effect. He has sold several articles on political and union topics to local, political and general national papers. His closing submission which was both entertaining and compelling was a testament to his ability."
[22]We turn now to each of the individual cases. Case 1 – Roberts v Castrol (UK) Limited[23]This was a section 137 case, presented in 1998 and based on an unsuccessful application for a temporary job. There was no evidence that at any material time the respondent knew of Mr Roberts' trade union connection. His stance was nevertheless that the respondent had "clearly failed to prove the charge brought against them", which the tribunal described as displaying a fundamental misunderstanding of the relevant law, the burden being on Mr Roberts to prove his case, which he did not. Mr Roberts sought a review of the decision, asserting bias against the chairman and procedural irregularity. The chairman refused the review application on the grounds that it had no reasonable prospect of success, denying the alleged bias and saying that the alleged procedural irregularity reflected a misunderstanding of the correct procedure. Mr Roberts appealed to this tribunal, repeating his allegations of bias. He did not attend the preliminary hearing, writing to the tribunal saying that financial reasons prevented it. His Honour Judge Levy QC, presiding, expressed this tribunal's view that they were satisfied that no bias was shown and dismissed the appeal as having no reasonable prospect of success. This was an example of the bringing of a claim which had no reasonable prospect of success, since Mr Roberts could not prove the minimum required to cast any burden of explanation on the respondent, and the making of an equally unjustified appeal. Case 1A – Roberts v Vauxhall Motors Ltd[24]This was another section 137 case. The tribunal rejected it on 14 May 1999, the evidence not coming near to showing that the respondent knew of Mr Roberts' union background. He was ordered to pay £250 costs on the ground that his evidence did not give any colour to his accusations against the respondent. The case was as ill-conceived as case 1. Mr Roberts appealed to this tribunal. An ELAAS representative appeared for him at the preliminary hearing, arguing that a question of law arose as to the correctness of the costs order. Mr Roberts also appeared in person at that hearing, alleging bias against the employment tribunal. He alleged a conspiracy to pervert the course of justice, making particular criticism of the chairman. This tribunal directed the appeal against the costs order to go to a full hearing. They dismissed the ground of appeal based on bias. They dismissed a ground of appeal based on the employment tribunal's refusal, at Mr Roberts' request, to adjourn the proceedings below. Mr Roberts later withdrew his appeal on the question of costs and it was dismissed. Case 2 – Roberts v West Kirby Grammar School for Girls[25]This was another section 137 case, linked with a sex discrimination complaint. The application was dismissed by the employment tribunal on 13 December 1999, Mr Roberts not attending the hearing. He sought a review of that decision, saying he had overlooked the hearing date. He did not attend the review hearing on 1 March 2000 to give evidence to that effect and his review application was dismissed. The tribunal also ordered him to pay £500 costs to the respondent. The tribunal said in paragraph 9:
"It would seem that the applicant has taken a view as to his prospects of success but has been minded to cause maximum disruption and inconvenience both to the respondents and the Tribunal by failing to withdraw his application."
Mr Roberts re-applied for a review of the decision on 14 March 2000, saying he had received no notice of the hearing of 1 March 2000. He did not attend the hearing for that review application either, which was on 2 June 2000, so again there was no evidence from him and his further review application was predictably dismissed. On 5 June 2000, Mr Roberts sought yet a further review. He said he had simply overlooked the hearing because of the pressure of other commitments, including in the Court of Appeal. That application was also refused, the tribunal saying in paragraph 11:
"11. Mr Roberts has now been given notice of and opportunity to attend two hearings. His approach would appear to be that these are not matters sufficiently serious for him to ensure that he will actually be present. We might well have been prepared to revoke the decision where we were satisfied that on one occasion, due to his negligence, he had failed to attend. I take the view that the Tribunal would be unlikely to adopt a similarly sympathetic approach where this has occurred twice."
This case is a good example of repeated and unjustified review applications. Case 3 – Roberts v Wirral County Grammar School for Girls[26]On 18 August 2002, the tribunal ordered Mr Roberts to pay a deposit as a condition of permitting him to continue the proceedings. The then applicable rules of procedure permitted such orders to be made if the tribunal considered the applicant's claim had no reasonable prospect of success. Mr Roberts did not pay the deposit and on 3 October 2000 the chairman struck his application out. That case should never have been brought. Case 4 – Roberts v Wirral Borough Council[27]On 18 August 2000, the tribunal ordered Mr Roberts to pay £150 as a deposit pursuant to the same procedural rule. He did not pay it and his application was struck out on 4 October 2000. This application was related to the case 3 application. We make the like comment about the bringing of that claim. Case 5 – Roberts v Neston High School[28]This was another section 137 application. The hearing was fixed for 16 February 2000. On 11 February, Mr Roberts applied by letter for a postponement on the grounds of an unspecified work commitment. The tribunal notified him on 14 February 2000 that his application was refused. At 10.23 pm on 15 February 2000 he faxed a further letter to the tribunal seeking a postponement. It was an arrogant letter, as follows:
"Dear Sir or Madam, I refer to a letter dated 14 th February concerning my request for a postponement of the hearing set for 16 th February. The unidentified Chairman demonstrates his bias, prejudice, and ignorance with his reported comments. My work commitment on Wednesday, 16 th February is a matter between me and my employer. It has nothing to do with this Chairman. As a Supply Teacher, I do not (and hardly ever) receive advance notice of work. As you have already been informed in my faxed letter of 12 th February, I was offered the work on Friday afternoon (11 th February). My circumstances are such that I am not in a position to refuse work – but I would not expect the affluent Chairman to appreciate this. You have also been informed that a postponement to the half-term school holiday would be better both for myself and for the respondent school, for clear and obvious reasons connected with release of school staff for the Tribunal. I repeat, I am unable to attend the Tribunal on 16 th February, and I request a postponement to a date during the school half-term. If the Tribunal proceeds in my absence, and notwithstanding this second request for postponement, I will raise the matter with the E.T.S., and the President of Employment Tribunals."
That fax was, of course, not seen by anyone until the morning of 16 February, the day of the hearing. Mr Roberts did not attend it; the respondent did, represented by counsel. The respondent's first witness had arrived at 9.05 am. The respondent considered rule 9(3) of the then rules, dealing with the non-attendance of a party, and also section 137. Counsel asked for the application to be proceeded with in the absence of Mr Roberts, to which the tribunal agreed. Counsel wanted to argue a preliminary issue raised in the notice of appearance. The point was argued and the tribunal held it showed that Mr Roberts had no status to bring the claim and it was dismissed. The case was, therefore, another one which, on the tribunal's findings, had no reasonable prospect of success. Case 6 – Roberts v National Union of Journalists[29]This was a complaint by Mr Roberts of suspension from a union of which he was a member, following a disciplinary hearing. He complained that he had been unjustifiably disciplined. He issued two originating applications. He issued the first in November 1999. In February 2000, he proposed that a hearing for directions be abandoned and that the case proceed to an immediate hearing. That proposal was rejected. He did not attend the subsequent directions hearing. He issued his second originating application in April 2000. His application in May to have the matter transferred from London to Manchester was refused. He disputed the need for the second directions hearing that was ordered in June 2000 and complained of the delay. That directions hearing was fixed for 20 September. He sought and obtained a postponement of it on the grounds of a viral infection; the hearing was re-listed for 9 November. He sought and obtained a postponement of that hearing in order to be at home to deal with important legal matters; the hearing was re-listed for 9 December. He sought and obtained a postponement of that hearing because of national rail difficulties; the hearing was re-listed for 16 January 2001. On 15 January 2001, he sought and obtained a postponement of that hearing on the grounds of influenza; the hearing was re-listed for 14 February. He sought and obtained a postponement of that hearing on the grounds of enteritis; the hearing was re-listed for 16 March. That hearing did take place, but Mr Roberts did not attend on the ground of "work commitments" and an unwillingness to travel by rail. The tribunal gave directions, fixed the merits hearing for five days in October and gave directions for discovery. On 31 July, an order for discovery was made against Mr Roberts on the respondent's application.[30]In August, Mr Roberts he made a complaint about the tribunal's approach and sought the removal of the chairman. He appealed to the EAT against the discovery order. The Regional Chairman rejected his complaint and reminded him of his need to comply with the order. He did not. His appeal against the order was due to be heard on 6 September. He notified the EAT the day before by fax that he had to attend his son's football match on 6 September and either could not or would not attend the hearing of the appeal. Nor did he. The respondent was represented by counsel at the hearing of the appeal. The EAT dismissed his appeal on 6 September. It could identify no error of law on the part of the employment tribunal in making the discovery order. Mr Roberts had argued in writing that the order infringed his human rights under articles 6 and 14 of the Convention , a theme common to his frequent complaints. By his appeal he not only sought to appeal against the discovery order, but also against the decision fixing the venue for the substantive hearing in London, an order made in 2000. That appeal was seriously out of time and was also dismissed; it was plainly a frivolous one which had no prospect of success. On 10 September, the respondent applied for the case to be struck out. That was refused and the employment tribunal extended to 21 September Mr Roberts' time for complying with the order of 31 July. On 12 September, he sought to appeal to the Court of Appeal against the EAT's dismissal of his appeal and on 16 September he sought an adjournment of the substantive hearing, then fixed for 1 October. On 25 September, the respondent applied for a strike out of the application for an adjournment. On 26 September both adjournment applications were refused, as was the strike out application.[31]On 27 September, Mr Roberts appealed to the EAT against the refusal of his adjournment application; it was listed for hearing on 28 September. On that day, he advised the EAT he would not be attending and he did not do so. Again, the respondent was represented by counsel. The ground of appeal was that the employment tribunal ought to have postponed the substantive hearing pending Mr Roberts' application for permission to the Court of Appeal against the earlier dismissal by the EAT of his appeal against the discovery order. Not surprisingly, the EAT dismissed his appeal. Counsel for the respondent sought an order for costs. His Honour Judge Clark, presiding, directed the respondent to file a schedule of its costs within 28 days and Mr Roberts within the same time to file a statement of his means. He said he would then deal with the matter on paper. The respondent did file its schedule, albeit late; Mr Roberts did not comply with the order, preferring to write to the court as follows:
"I trust you have made Judge Clark aware of the outstanding Court of Appeal proceedings. You may also make him aware that I have no income or savings so any costs award he may make in relation to the extraordinarily improper and irregular hearing on 28 September (a hearing of which I was given NO NOTICE, and which proceeded in my absence, again) will be left utterly futile."
On 18 September, Judge Clark ordered Mr Roberts to pay costs assessed at £744.17 (including value added tax).[32]Meanwhile the substantive hearing came on before the employment tribunal on 1 October, the first day of what was supposed to be the five-day hearing. Mr Roberts did not attend. The respondent was represented by its solicitor. Mr Roberts had, however, asked for an adjournment. He faxed his request to the tribunal at 7.43 am on 1 October. He said he was ill and that his doctor's note would be forwarded as soon as it was obtained. He also faxed a copy letter he had faxed on the previous day to this Appeal Tribunal "on this case and very irregular happenings on 28 September." He proposed a re-fixing of the case in the week commencing 22 October. The tribunal reviewed the history of the two applications. They considered rule 11(3) of the then rules relating the non-attendance of a party. They considered the cost rules. Their decision was as follows:
"7 The Tribunal in looking at this issue today considered four options: a simple adjournment although noting that a five day case cannot be fixed for some time and certainly not in the week beginning 22 October; to hear the case in the absence of the Applicant, but did not consider that to be to appropriate given that the burden of proof is on the Applicant to establish his case; to adjourn the case with a view to fixing the matter for argument as to striking out; to dismiss the case on Mr Roberts' non-appearance. That latter is the course urged upon the Tribunal by the Respondent. The Tribunal having regard to all of the above is satisfied that Mr Roberts has failed to prosecute his case with vigour; has been granted a number of requested adjournments; has been granted a number extensions of time in which to comply with the Employment Tribunal's order but has nevertheless failed to comply with three orders for discovery so that even today on the day fixed for the commencement of a five day hearing the papers that were to have been put before the Tribunal were not in a satisfactory order. Further he has failed to appear at two directions hearings, two appeal hearings and of course today. In all of these circumstances the Tribunal considers it appropriate to dismiss his applications and so orders. 8 The Tribunal has considered an application for costs in this matter made by the Respondent. The Tribunal proposes to order costs under rule of procedure 14 as in bringing and conducting these proceedings, it is the Tribunal's opinion that Mr Roberts has acted both vexatiously and unreasonably. The Tribunal feels that it cannot make an order for costs until it has more information firstly about what the costs are and secondly about Mr Roberts' means and capital. Therefore the Tribunal orders that within 14 days of the date this decision is sent to the parties, the Respondent file a schedule of costs and that Mr Roberts file a statement of his means including capital. Thereafter the Tribunal will reconvene to consider costs providing both parties with an opportunity to appear and make representations if they wish."
Case 7 – Roberts v Hugh Baird College[33]This was a section 137 case. On 29 March 2000, the tribunal ordered Mr Roberts to pay £150 deposit as a condition of continuing the proceedings. He did not pay it and in May 2000 the tribunal struck his originating application out. That is another application that should have been brought. Case 8 – Roberts v Plessington Catholic High School[34]This was another section 137 case. The hearing was fixed for 30 November 2000, although it had been so fixed without prior reference to the parties. On 23 October, the respondent sought an adjournment, as its main witness had a pre-fixed longstanding engagement. The tribunal adjourned the hearing and re-listed the case for 5 December. On 29 November and 4 December, Mr Roberts sought a further adjournment: he had a cold. He submitted no doctor's note or other corroboration of his illness. The application was opposed on the ground that he frequently failed to attend the hearings of his applications before tribunals. The tribunal nevertheless adjourned the hearing to 5 January 2001, pointing out that any application for an adjournment on that date must be supported by medical or other evidence. On the morning of 4 January 2001, Mr Roberts sent the tribunal a fax asking for an adjournment. His reason this time was that "the new date … clashes with prior engagements". He said he did not wish the application to proceed in his absence. He did not explain what the prior engagements were. The chairman refused to postpone the matter. He also directed that if Mr Roberts failed to attend on 5 January the matter would proceed in his absence. A message was left on his answer machine to that effect. He could not be faxed because his fax machine had not, so the tribunal said, been switched over. In the afternoon of 4 January, Mr Roberts repeated his unavailability the following day because of an unspecified prior engagement. He said that if the hearing proceeded in his absence he would take all steps available to him "to contest this latest exhibition of partiality and injustice…". He did not attend the hearing on 5 January. The tribunal reviewed the history of the case and dismissed the application. We infer that Mr Roberts had no intention of attending that hearing in order to argue his case. Case 9 – Roberts v Wirral Metropolitan Borough Council[35]This was a section 137 case. On 18 August 2000, the chairman ordered Mr Roberts to pay £150 by way of a deposit. He did not pay it and so on 28 November the chairman struck his application out. This application was related to cases 3 and 4. On 4 December, Mr Roberts applied to the tribunal to review its decision. His case was that he had mistaken the date of the hearing of 28 November; he thought it was to be on 30 November. The tribunal revoked its decision of 28 November and re-fixed for 5 January 2001 the question of whether Mr Roberts' application should be struck out. On the morning of 4 January, Mr Roberts faxed to the tribunal a request for an adjournment in the same terms as that referred to in case 8. It came before the same chairman who refused it for the same reasons. Mr Roberts did not attend the hearing on 5 January and the same tribunal as in case 8 dismissed his application. This case should never have been brought. Case 10 – Roberts v The Health & Safety Executive[36]This was also a section 137 case. The hearing was fixed for 7 November 2000. On 6 November, Mr Roberts wrote to the tribunal saying he would not attend on 7 November and asking for a postponement. His request was refused. He did not attend on 7 November and his application was dismissed. On 15 November, he applied for a review of that decision. He complained that to proceed in his absence denied him a fair trial. The chairman's view was that Mr Roberts had been offered a fair trial but did not take the offered opportunity. He rejected the assertion that the postponement application had not been properly considered. He rejected the assertion that he was biased against Mr Roberts. He had been the chairman in case 1A in which the EAT dismissed the accusations of bias against him. He rejected Mr Roberts' assertion that his appointment to sit on the case violated Mr Roberts' right not to be subjected to discrimination on the grounds of politics or other opinion and said he did not know what opinions Mr Roberts was referring to. He rejected the assertion that he had illegally discriminated against Mr Roberts because he knew he lacked confidence in him and said that Mr Roberts' lack of confidence provided no reason why he should not sit on the case: Mr Roberts is not entitled to select his tribunal members. The chairman dismissed the review application as having no reasonable prospect of success. Case 11 – Roberts v Birkenhead Sixth Form College[37]This was another section 137 case. The hearing was fixed for 25 September 2000 but was postponed because that date clashed with a hearing in case 10; it was re-fixed for 25 October. The hearing was postponed at the respondent's request, to which Mr Roberts raised a vociferous objection. Mr Roberts complained to the Regional Chairman and President for Tribunals. He made an allegation that there was a conspiracy to pervert the course of justice and named three chairmen of tribunals. By a notice dated 16 November, the case was listed for 18 December. On Sunday 17 December, at 9.40 pm, Mr Roberts requested a postponement on the grounds of ill-health, claiming he was suffering from a throat / chest infection. He said he was not in a fit state to attend a day-long tribunal hearing. He had left it as late as possible to establish his unfitness to attend on 18 December "because I did not wish to inconvenience either the tribunal or the respondent…". He made no attempt to contact the respondent or their solicitors and made no further contact with the tribunal. He did not attend the hearing on 18 December. The respondent was represented by counsel. The tribunal dismissed the originating application and ordered Mr Roberts to pay the respondent £500 costs.[38]The tribunal, in their extended reasons recorded their knowledge that Mr Roberts had made 12 applications to the same tribunal between August 1998 and May 2000. They detailed them in a schedule. They said that:
"But for the manner in which Mr Roberts conducted himself in certain of those cases, his application [for a postponement] might have been expected to succeed."
They said it was:
"…wrong to ignore the fact that the applicant knows, by reasons of his previous dealings with the tribunal, that an application for a postponement on the grounds of ill-health should be supported by medical evidence certifying that the ill-health prevents attendance at the tribunal."
We draw attention to that observation as being relevant to Mr Roberts application to us to adjourn this application, one which is similarly unsupported. The tribunal refused the postponement and made the further orders we have mentioned.[39]Mr Roberts applied, on 26 February, for a review of that decision. That application was dismissed on 7 March. He appealed against the tribunal's decision to the EAT. The preliminary hearing of the appeal was due to be heard on 21 September 2001; Mr Roberts did not attend it. At 7.28 am on the morning of 21 September he sent the EAT a fax saying that he was unable to travel to the EAT because he had influenza, adding:
"My apologies to all concerned. I trust justice will be done in my absence."
The justice done in his absence was the dismissal of his appeal because it raised no fairly arguable error of law on the part of the employment tribunal. He had launched an appeal which had no reasonable prospect of success. Case 12 – Roberts v Teaching Personnel Ltd[40]This was a section 138 case. The hearing was fixed to take place on 14 May 2001. At 6.08 pm on Sunday 13 May, Mr Roberts faxed a communication to the regional officer saying he had been taken ill over the weekend. He said he had informed the respondent by telephone that evening. He said he would provide a doctor's note as soon as he had seen his doctor on 14 May. He asked for the case to be adjourned to the week beginning 28 May. Neither side attended the hearing and the tribunal adjourned the case to a date to be fixed. The case came back before the tribunal on 8 August 2001. On that occasion Mr Roberts did attend and Mr Millard represented the respondent. At a point at which an element of contention arose between Mr Roberts and the chairman as to the material issues in the case, Mr Roberts asked the chairman, Mr M D Homfray-Davies, to recuse himself. His grounds were that the chairman had been party to an earlier decision against Mr Roberts which was under appeal. The chairman refused to do so. Mr Roberts then asked for a postponement on the grounds of the chairman's previous alleged bias and prejudice. He said he did not propose to take any further part in the hearing if the chairman chaired them. He left the tribunal room at 10.40 am, saying he was going home to fax a complaint to the EAT. The tribunal's extended reasons record that Mr Roberts had been aggressive, raised his voice and spoke disrespectfully to the chairman. The tribunal proceeded to deal with the case on the merits, but concluded that it needed to hear the evidence of a Mr Hellier and so adjourned the case until the autumn of 2001 on a date to be fixed.[41]The matter in fact returned to the tribunal on 7 March 2002. The notice of that hearing had been sent to the parties on 26 November. On 3 March, Mr Roberts sent a fax to the tribunal asking for an adjournment on the ground that he was unable to attend a hearing during March. The chairman, again Mr Homfray-Davies, refused that application, no sufficient reason being advanced for it. On 5 March, Mr Donnelly, for the respondent, notified the tribunal that he would be unable to attend the hearing either, but asked the tribunal to consider the written statement he had earlier submitted. Both those documents were sent to Mr Roberts on 6 March. Mr Roberts sent a further fax to the tribunal at 5.06 pm on 6 March. He said that:
"Once again we have blatant and unconscionable double standards by your office and by the un-eminent Mr Homfray-Davies."
He said he wished to cross-examine Mr Donnelly and that, as neither was available on 7 March, those were two good reasons for adjourning the case to April. He repeated his request for an adjournment. Neither side was present or represented when the hearing commenced on 7 March. The tribunal refused to adjourn the matter in response to Mr Roberts' further request, expressing the view that:
"His expressed desire to cross-examine Mr Donnelly is disingenuous because it was only made after his original request had been refused and Mr Donnelly, no doubt to save the expense of attending the tribunal in Mr Roberts' absence, said he was not going to attend."
The tribunal then dismissed the application on the grounds of Mr Roberts' non-attendance, although they also considered the application on its merits and found it to be without justification. That case should not have been brought. Case 13 – Roberts v Department of Education and Employment[42]This was a section 137 case. On 30 January 2001, the parties were notified that the hearing would be on 15 March. On the same day the tribunal made a discovery order against the respondent on Mr Roberts' application. On 14 March, Mr Roberts faxed the tribunal a request for an adjournment on the grounds that the respondent had not furnished him with any documentation upon it that he intended to rely. That request was refused and the refusal was conveyed to Mr Roberts on the same day. That led to a fax from Mr Roberts to the EAT asking that the conduct of the chairman who refused the adjournment be investigated. At 7.23 am on 15 March, Mr Roberts sent another fax to the tribunal complaining that the chairman had dismissed his adjournment request in "something like an hour, if that". He made no repeat adjournment request. He did not attend the hearing. The respondent attended by his solicitor, as did four witnessess whom it intended to call. The respondent claimed, and the tribunal appear to have accepted, that the discovery order had been complied with and asserted that the application was frivolous and vexatious. The tribunal considered the originating application and notice of appearance and dismissed the application. Mr Roberts appealed to the EAT against the chairman's refusal to postpone the hearing. He did not appeal against the dismissal decision of 15 March itself. On 13 February 2002, the EAT dismissed his appeal at the preliminary hearing. Mr Roberts did not attend the hearing and the tribunal, His Honour Judge Wilkie QC presiding, held that it was "manifest from the papers that it had no reasonable prospect of success". Case 14 – Roberts v(1) The Governing Body of Alun School(2) Flintshire County Council[43]This was a section 137 claim and a sex discrimination complaint. Mr Roberts was ordered by the tribunal, within specified times(a) to disclose the grounds on which he alleged denial of employment due to trade union membership and(b) to serve a written statement. He complied with neither order. Nor did he attend an interlocutory hearing, but sent a fax to the tribunal at 10.00 pm on the previous evening asking for an adjournment, saying he had another unspecified appointment. The tribunal observed, in their extended reasons of 4 March 2001, that this "all seems to be part and parcel of the applicant's conduct of these applications". The substantive hearing was fixed to take place at Flint on 30 January 2001. There had been some 'to-ing and fro-ing' as to where the hearing would in fact take place, which the tribunal explain in their reasons, but Mr Roberts was notified of the venue the night before. At 9.46 am on the morning of the hearing the tribunal received a fax from him asking for a postponement, he making a complaint that he had no time to "adjust to travelling to either Shrewsbury or Flint and the tribunal has not assisted with travelling directions". The tribunal said of this:
"4. … The Tribunal regards that suggestion as nonsense. In fact, Flint is some twenty minutes driving nearer to Liverpool than Denbigh. The applicant should have made arrangements expecting to travel to Denbigh and is not beyond his compass as an intelligent man to make enquiries where he lives or even of a police station of the slight adjustment in route required to get him to Flint. At the least the applicant should have set out and then contacted the Tribunal office on route to indicate that he might be delayed or had some problem. The reality is that despite having received notice of a slight change of venue at 7.30 p.m. the night before by just before 10 o'clock, he had not even left home. Further, on being advised by fax timed at 10.13 a.m. the Tribunal was not prepared to consider an adjournment and would wait until 11.30 a.m. which would give him ample time to make the journey no communication has ever been received. The Tribunal suspects in fact that the applicant left home so that he could avoid receiving any further communication. In fact as far as travel is concerned the situation is perfectly simple. The roads from Liverpool are clearly signposted and there are only two roads into Flint and there would have been no problem in finding the hearing venue. Two members of the Tribunal in fact travelled from Shrewsbury which is not a much greater distance in order to assist the applicant in order to have a hearing today. The application for this matter to be adjourned is been rejected without difficulty and once again the applicant has shown flagrant disregard for the requirements of the Tribunal, who consider that he had no intention whatever of attending any hearing. The time is now nearly 12 o'clock and still the applicant has not arrived nor any further communication been received. 5. The Tribunal has considered and read the Originating Application, the Notice of Appearance, the agreed bundle of documents which includes all the correspondence from the applicant, the matrix for selection and the statements of the respondents' witnesses. The Tribunal has no difficulty whatever in deciding upon that paperwork that the explanation given by the respondents for the choice of the lady teacher is an adequate and satisfactory explanation. Indeed the lady teacher chosen had areas of expertise which would be of considerable value to the school with which the applicant could not compete. 6. The applications are, therefore, dismissed, and as far as the Tribunal is able to see there were no grounds whatever for making the application which had no merit whatsoever."
Case 15 – Roberts v Shrewsbury College of Arts and Technology[44]This was a section 137 case, although Mr Roberts linked it with complaints under the Human Rights Act 1998 , asserting that he had been discriminated against on the grounds of his political opinions and claiming to place reliance on articles 9, 10, 11 and 14 of the Convention . This is an unusual case in that Mr Roberts attended the substantive on 4 February 2002 and gave evidence. The tribunal said in their extended reasons, sent to the parties on 20 February 2002, that:
"In most respects the applicant's case is, therefore, legally well conceived. The facts unfortunately for the applicant, fail to bear it out."
The tribunal proceeded to consider the case very fully but dismissed it on the facts without feeling the need to be addressed by counsel for the respondent. They refused an application for costs against Mr Roberts, saying in paragraph 22:
"We do not consider the conditions in what is now Rule 14 of the 2001 Tribunal Rules to have been met If the originating application was misconceived it was only in hindsight that the applicant can now see it to be so. The applicant has not been unreasonable in having a full hearing of the matter today."
Case 16 – Roberts v Wigan & Leigh College[45]This was a section 137 case. The original substantive hearing was postponed because of Mr Roberts' ill-health. The adjourned hearing was on 8 September 2003. Mr Roberts did not attend, the tribunal observing that there seemed to be no reason why he did not do so. The respondent attended by its solicitor. The tribunal considered the papers and concluded it could not deal with the merits without hearing evidence from Mr Roberts and dismissed the application, also ordering Mr Roberts to pay £850 costs, the tribunal holding that his conduct was "vexatious and otherwise unreasonable". On 3 June 2004, Mr Roberts wrote to the tribunal complaining of the delay in re-fixing the hearing and complaining that the delay in bringing the matter to a hearing (the originating application having been presented in March 2002) infringed his article 6 rights. He suggested that the case be listed in the first week of September or the last two weeks of October. Our copy of that letter is incomplete, a page being missing. We do not understand its basis or the tribunal's reply of 9 July, the application having been dismissed the previous September. Mr Roberts also appears to have lodged an appeal to the EAT against the tribunal's decision in its letter of 9 July, which he regarded as a refusal to order discovery which he had sought. We presume that the appeal went no further. Case 17 – Roberts v Celsian Employment Agency[46]This was a section 138 case. The hearing was on 16 May 2003. Mr Roberts did not attend. At 11.46 am on that day he sent a fax to the tribunal asking for an adjournment. By then the case had been heard, the tribunal hearing evidence from Mr Jones for the respondent. The tribunal dismissed the claim on its merits and ordered Mr Roberts to pay £1000 costs, holding the case to have been misconceived. Mr Roberts applied for a review of that decision. The ground of his application was that he did not know until the morning of the hearing when it was fixed to take place and that he was anyway medically unfit to attend. The review hearing was on 31 July 2003. We quote from the tribunal's extended reasons on the review application, sent to the parties on 18 August 2003:
"3. An account of this case will be incomplete without a description of the events that' occurred in the Tribunal room. Here is what happened: (a) The Chairman opened the hearing by identifying the case and acknowledging the representatives. He said: "
The applicant is Mr James Roberts, and you, Mr Roberts, represent yourself to-day, don't you?" The applicant met the question with silence, staring stonily ahead of him. The Chairman:
"Mr Roberts, that's right, isn't it?"
The applicant grunted his assent, still avoiding eye contact. (b) At the Chairman's invitation, the applicant then said what the grounds of his application were, in detail. The Chairman then invited him to give evidence on oath confirming what he had said, and he agreed. The exchanges between them had until then been quiet and courteous. The Chairman has now to say this: as the applicant crossed before him, walking from his seat to the witness table, he (the Chairman), observing his face, sensed that here was someone troubled and unhappy, and felt a keen pang of pity for him. He determined that the hearing should be as little distressing to the applicant as possible. (c) The applicant was sworn. He briefly confirmed what he had said in opening. He said he had nothing to add to it. Ms von Wachter of counsel for the respondents attempted to cross-examine him. She never deviated from complete politeness. She started by saying to him, "I represent the respondents, Mr Roberts, and I'm now going to ask you a few questions, do you understand?" Strictly the remark is redundant, but it is often used by representatives as a signal of courtesy; it means something like, "There is nothing personal in what follows. Let us be as friendly as we can". He ignored her, not even looking at her. She said, "Er, Mr Roberts, do you understand that?". His affirmation that he did was churlishly said. (d) The applicant refused to answer Mrs von Wachter's next question, whether he was an experienced litigant, saying acerbically that he did not understand its relevance. He then asked her what her name was. She tried to continue but he insisted on being told her name. The Chairman, who has had previous experience of the applicant, did not want an irreconcilable confrontation on the matter, and told him her name. She then tried to carry on, but he asked how her name was spelt. The Chairman told him. (d) Ms von Wachter tried to ask the applicant about the contents of the Schedule to the previous decision, which the Tribunal (at the Chairman's instance) had provided to the parties; in that case the respondents were Birkenhead College. She asked about the first case on the list, in which the respondent was Castrol. The applicant then abandoned any attempt to answer questions. He pretended that he did not know what Ms von Wachter was alluding to. He pretended that he could not find it. He made a display of finding it on the table before him. He objected to the production of the decision. He wanted to know what the case of Castrol had to do with the present case. The Chairman asked him to look at the Schedule. He pretended to be confused as to which case he was being asked about, Castrol or Birkenhead College. He spoke snarlingly and contemptuously to Ms von Wachter. (e) Ms von Wachter was trying to focus the applicant's attention on the Schedule. She was asking him to look at it. He was aggressively refusing. The Chairman was trying to persuade him to look at it. In vain. No one was speaking rudely to him or even impatiently at this stage. Finally the Chairman, perceiving that patient persistence was useless, said peremptorily to the applicant, "Just do it!" The applicant turned to him apparently in surprise and said, "What did you say?" The Chairman repeated, even more emphatically, "Just do it!" The applicant gathered up his papers and walked out of the Tribunal, muttering. (f) Ms von Wachter felt distressed and intimidated by the applicant's behaviour. The two Tribunal members were themselves unnerved. They declared that they had never in their considerable experience of sitting seen such appalling behaviour from a party. The hearing continued quietly in the applicant's absence, with the result indicated below." The tribunal refused to review their decision. They rejected Mr Roberts' claim that he had only learned the date of the hearing on the very morning of it because he had been told of the date in a letter of 8 May 2003, one which he had read because he had referred to it elsewhere. They said that:
"Not turning up and not giving warning soon enough to stop the hearing is a modus operandi of the applicant's. We did not believe the excuse for not doing so he offered on this occasion. He did receive notice of the hearing."
The tribunal also held that Mr Roberts did not satisfy them that he was unfit to attend the hearing. He was fit enough to travel to the post office on that day and produced no medical evidence to support his unclaimed fitness. They said:
"(c) The applicant did not satisfy us that he was unfit to attend. He was fit enough on the day to travel from his home to the Post Office. He produced no medical evidence to support his claim that he was unfit to attend a hearing. He produced 2 documents from Arrowe Park Hospital, one promising him an appointment and the other offering him one on 8 September 2003. Neither helped us to decide whether he was unfit to attend. He also produced a medical certificate dated 30 April 2003 pronouncing him unfit to attend work for 8 weeks. But he knows that there is a difference between being unfit to go to work every day and being unfit to come to a hearing, and he knows the Tribunal's requirement that medical certificates should reflect the distinction. He knows because he has been told. At paragraph 6.1 of the decision in the Birkenhead College case, the Chairman writes: "
In granting the postponement the Chairman stated that any future application for a postponement on health grounds would require a doctor's certificate concerning the applicant's ability to attend a hearing, not to attend work"." We have quoted that because it is also relevant to the equally unsatisfactory basis on which Mr Roberts has sought to have this hearing adjourned. The tribunal made an order for costs in the sum of £1,959.70 against Mr Roberts. They referred to the relevant procedural rule and then said:
"We decided that an order for costs was appropriate. The applicant knew when the hearing was fixed to take place. He had insufficient reason to think that he was medically unfit to attend. He did not tell us the truth. He misbehaved grossly. The applicant is vexatious. His motives, language and behaviour are spiteful. There may be sadness at seeing what this talented man is doing to himself. But here he had caused great expenditure and trouble, and some distress, to the people against whom his venom was directed. At the very least this application was misconceived, and his conduct of it unreasonable. Indeed those adjectives understate the truth. He should pay the respondents' costs."
Case 18 – Roberts v Sefton Metropolitan Borough Council[47]This was a section 137 case, linked with a claim under the Part-Time Workers Regulations 2000 . In this case Mr Roberts had received legal assistance from Legal Team Ltd. On 20 October 2003 they sought an adjournment of a preliminary hearing at the last minute, which was refused by the tribunal on 21 October. The tribunal explained that the hearing date had already been adjourned once to accommodate Mr Roberts. Mr Roberts responded personally to that refusal by a letter to the Employment Tribunal Service in Manchester of 23 October. He wrote as follows:
"RE: Violation of my human and legal rights in breach of Article 6 of the Human Rights Act, 1998 J. Roberts v Sefton M.B.C., Case Number 2101019/03 Dear Sir or Madam, I wish to protest about the outrageous behaviour of the Chairperson responsible for the above case, who is clearly in league with the Respondent. On Monday, 20th October, the Solicitors who have agreed to act for me in this matter – Legal Team Ltd. – faxed this Employment Tribunal in Liverpool and the Respondent to request a short adjournment of a Preliminary Hearing set for 24th October. My Solicitor is at the Employment Appeals Tribunal on the same day. My Solicitor has contacted me this morning to inform me that the Chairperson has refused my request , saying I have had plenty of time to obtain legal representation. Wrong. Mr Solicitors were appointed only last week, as the previous Solicitors appointed by a Red Ltd. of Manchester deserted the case without explanation and without notice. I am entitled to pursue this application on an equal footing and with equal rights to legal representation. It seems clear that the Chairperson wishes to deny me my human and legal rights in violation of Article 6 of the Human Rights Act, 1998. It is crystal clear in the light of this incident, and others reported to your office recently, that there is an illegal conspiracy to pervert the course of justice in relation to my application to the Liverpool office of E.T. It is time something was done about this, and before tomorrow. I call upon your office to intervene to ensure respect for the law, and for the principles of justice and parity that should underpin the workings of this Tribunal, and all Tribunals."
Mr Roberts followed that letter up with a further letter of the same date to the tribunal, repeating his request for a short adjournment, explaining the difficulties he had with getting representation and enclosing a medical certificate dated 23 October to the effect that a headache from which he was suffering rendered him unable to work.[48]The matter came before the tribunal on 24 October when Mr Roberts was not represented and the respondent was represented by its solicitor. In the light of the contents of Mr Roberts' second letter, the tribunal postponed the hearing to 10 December. They reserved until then the question of whether Mr Roberts should pay the wasted costs of the attendance on 24 October. On 6 November, Mr Roberts wrote to the tribunal thanking them for their decision, but complaining that Mr Lomas had sat as a member of the tribunal, of whom he had made a complaint to the EAT. He asked for Mr Lomas to be replaced by a member who was not likely to be prejudiced against him. At the hearing on 10 December, the chairman was the same but the industrial members were different. Mr Roberts attended in person and gave evidence. The respondent was represented by its solicitor. The tribunal ruled against Mr Roberts on the preliminary point and dismissed his claim. They made no order as to costs against him in respect of the earlier hearing, concluding that any fault in relation to that lay rather with his legal representatives. Case 19 – Roberts v Locum Group Education Recruitment[49]This was a section 138 case. On 27 October 2003, Mr Roberts applied for a postponement of a hearing on 29 October. It was refused on 28 October on the grounds that the medical certificate did not support it. On 28 October, he made a repeat application supported by a medical certificate of the same date, to the effect that he was suffering from a viral infection, felt tired and lethargic and was unable to drive long distances. On receipt of that further evidence the tribunal did postpone the case. The hearing was re-fixed for 27 November. On 23 November, Mr Roberts wrote to the tribunal to say that it clashed with his signing on day. He asked for it to be re-listed, and application which was refused. On 25 November, he wrote a letter of complaint about that, saying that he would refer the correspondence to the President of Employment Tribunals and the EAT. He said he could not afford to wait an extra three days for his benefits and repeated his adjournment application. The application was refused on 26 November, the tribunal pointing out that Mr Roberts had known of the hearing date since the end of October. On 26 November, Mr Roberts complained to the President of Employment Tribunals, who replied on the same day, predictably saying it was a matter for the chairman concerned. Mr Roberts did not attend the hearing on 27 November. Ms Windle represented the respondent. The tribunal heard evidence from the respondent, accepted that the respondent's recruitment consultant had no knowledge of Mr Roberts' trade union membership and dismissed the claim on its merits. The respondent sought costs on the basis that the application was misconceived, but the tribunal made no order. On 5 January 2004, Mr Roberts applied for a review of that decision, one he described as "scandalous in the extreme". The tribunal refused it on 9 January, taking the view that all of Mr Roberts' grounds were based on the contention that his absence from the hearing was unavoidable, whereas the tribunal's view was that he could and should have attended. Case 20 – Roberts v The Cheshire County Football Association Ltd[50]This was a section 137 case. Miss Donnelly, a chairman, made an early decision that Mr Roberts had shown no evidence linking his trade union connections to the fact that he was not short-listed for the job. That being so, she declined to order the respondent to provide him with information he had sought. Mr Roberts complained of that and wrote about Miss Donnelly's decision to the EAT. His letter to the EAT of 6 August 2003 included this paragraph:
"Miss Donnelly deliberately seeks to pervert the course of justice in this case by declining to issue an Order for Disclosure against the Respondent for disclosure of the application details of the seven short-listed candidates. She does this, deliberately, because she knows such an Order would prove me right, and expose her as obstructing my application, and unfairly assisting the Respondent."
He asked the EAT to investigate the matter. Mr Roberts plainly appears, mistakenly, to regard the EAT as some sort of employment tribunal ombudsman. On 15 August, the EAT informed Mr Roberts that what they interpreted to be an appeal by him disclosed no arguable error of law by Miss Donnelly and that no further action would be taken on it. That provoked an angry response from Mr Roberts on 31 August, in which he said, in part:
"I have not submitted any Notice of Appeal in this case so the opening sentence of your letter of 15th August is a mystery to me. What you have received from me are letters complaining about the biased, obstructive, and prejudiced behaviour of Miss Elaine Donnelly, Chairperson in this case, who is clearly in collusion with the Respondent in seeking to pervert the course of justice in this application. Thank you for referring me to the Employment Tribunals Act, 1996, which I will be studying in detail over the next few days. May I, in turn, refer you to the Human Rights Act, 1998, and in particular, Articles 6 and 14 of that Act. Article 6 is concerned with my right to a fair trial. To date, it is clear Miss Donnelly is intent on denying me my right to a fair trial of this application. Article 14 concerns my right to enjoy the rights set out in the Human Rights Act, 1998, free from discrimination of any kind. Miss Donnelly is clearly engaged in discrimination against myself. Both Miss Donnelly and yourself are rather selective about which laws you chose to adhere to. The Human Rights Act, 1998, is the law of the land. This Act is …."
The remainder of my copy of the page is cut-off. The hearing before the tribunal was on 17 October 2003. Mr Roberts attended in person and gave evidence. The respondent was represented by its solicitor. The tribunal dismissed the section 137 complaint. They found that Mr Roberts was not short-listed or interviewed because his scores in the short-listing process were too low. They also dismissed his complaints under the Human Rights Act 1998 . The tribunal referred to the history of complaints made by Mr Roberts under section 137 and stated in their reasons that the chairman would make a report to the appropriate authority with a view to a consideration as to whether a section 33 application should be made against Mr Roberts. Case 21 – Roberts v Wirral Metropolitan College[51]This was a section 137 claim linked with complaints under the Human Rights Act 1998 . The human rights claims were struck out in February 2004. The hearing on the section 137 claim was on 14 June. At 4.51 pm on 11 June, Mr Roberts faxed an adjournment request. He said he had fallen ill with "influenza / chest / throat" infection and had been too unwell to see a doctor, but was seeing one on 14 June. He did not attend the hearing. Mr Moran attended for the respondent. The tribunal refused to postpone it. They said, in their extended reasons, sent to the parties on 8 July 2004:
"In case number 2101888-00 against Birkenhead Sixth Form College he made an application for a postponement by facsimile on the Sunday before the hearing at 21.40 on the grounds of ill-health. It was refused and the case dismissed. He had previously been informed in the interlocutory process of case number 2101678-00 against the Health and Safety Executive, that any future application for a postponement would require a doctor's certificate certifying that the applicant was unfit to attend a hearing because of ill-health, and by implication that a certificate which merely said that he was unfit to attend work would not suffice."
The tribunal further said as follows:
"8. In the light of the applicant's knowledge of tribunal procedure, in particular the tribunal's requirements in respect of applications to postpone on medical grounds, and the history cited above we refuse the application to postpone because we doubt its sincerity. It was sent just before the close of business of the tribunal, on the last working day before the hearing scheduled for the following Monday. If it be true, with the applicant's history of incapacity due to various respiratory problems, he could and should have informed the tribunal at say 10.00 am on 11 June 2004 of his predicament, at which time the tribunal and the respondent could have given it full consideration; in fact Mr Moran did not receive the request until this morning from the tribunal. If he was too unwell to attend the Doctor he could have requested a visit from a Doctor. He states that he had made an appointment with his Doctor for Monday, yet he gave no time for the appointment. 8.1 After the decision in this case had been made the tribunal received a facsimile timed at 16.39 14 June 2004, in which the applicant informed the tribunal that he not been able to see his Doctor to-day since the Doctor was fully booked, this statement contradicts his contention on Friday that he had booked an appointment for Monday. He stated that he had an appointment on Tuesday afternoon. Given the general practice adopted by GP's surgeries nowadays it would be surprising if Mr Roberts could have booked an appointment on Friday for Monday. 8.2 By further facsimile received on Tuesday 15 June 2004 timed at 19.21 the applicant enclosed a certificate from his doctor dated 15 June 2004, which states that he should refrain from work due to chest infection until 22 June 2004. The certificate makes no mention of Mr Roberts condition on Monday 14 June 2004; further, no mention is made of whether Mr Roberts was able to attend the hearing on Monday 14 June 2004, neither is there any report of the examination carried out. 9. We wish to record that the tribunal will not consider any further step in these proceedings which concerns the decision to refuse the postponement request on medical grounds, without a full report from the Doctor on the consultation carried out with the applicant on 15 June 2004 and the doctor's opinion on Mr Roberts' fitness to attend a hearing on 14 and 15 June 2004. 10. The applicant is a menace; he is a menace to educational establishments in Merseyside, and a menace to this tribunal. He uses scandalous language in correspondence and frequently frustrates the due process of his applications by failing to attend or submitting bogus applications for postponements on medical grounds. He should be stopped from doing so."
The tribunal then dismissed his claim and made an award of costs against him in the sum of £1,233.75. On 18 July, Mr Roberts sought a review of that decision which was dismissed on 26 July as having no reasonable prospect of success. Case 22 – Roberts v Hugh Baird College of Further Education Corporation[52]This was a section 137 case. On 8 January 2004, Mr Roberts was ordered to pay a deposit of £5,000 as a condition of being permitted to continue the claim. He did not pay it and so on 4 March his application was struck out. The application should not have been brought. Case 23 – Roberts v Sefton Metropolitan Borough Council[53]The nature of Mr Roberts' claim is unknown to us, but he sought an adjournment shortly before the hearing. It was unsupported by medical evidence and refused. He was told that unless medical confirmation was provided no postponement would be granted. He repeated his application on the eve of the hearing, again without supporting medical evidence. He did not attend the hearing. The respondent was represented by its solicitor. The tribunal again refused to postpone the hearing and dismissed Mr Roberts' application. Appeals to this appeal tribunal[54]The evidence then includes papers relating to appeals to the EAT against the decisions in cases 17 to 20 inclusive. On 23 December 2003, Mr Roberts sought an adjournment of a preliminary hearing in one of those appeals, fixed for 14 January 2004; he was suffering from back pain and produced a doctor's certificate to the effect that he should rest for at least ten days. In those circumstances he claimed to be unable to meet a bundle deadline of 31 December. The hearing on 14 January was vacated; it was re-fixed for 3 March. On 18 February, he sought an extension of time for lodging bundles; he had a cold and a stomach bug and he had been unable to leave home for two days. On 29 February, he wrote to the EAT requesting an adjournment of the preliminary hearing on 3 March; he had been ill with influenza and a chest infection and said he was attending his doctor on 1 March. The Registrar vacated the hearing fixed for 3 March and re-fixed it for 5 April. On 26 March, Mr Roberts asked for an adjournment of it as he was unwell with a chest infection, a viral illness and the effects of stress. He enclosed a doctor's certificate advising him to refrain from work for four weeks. The Registrar declined to vacate the hearing on 5 April. Mr Roberts repeated his application on 30 March, complaining in unacceptably intemperate terms that he had been harassed by officers of the EAT. He copied the letter to the President of Employment Tribunals, the Lord Chancellor, the Prime Minister and European Court of Human Rights, an exercise entirely typical of the conduct of vexatious litigants. The hearing on 5 April was vacated and the preliminary hearing was re-fixed to be heard with three others of Mr Roberts' appeals on 7 May. On 5 April, he wrote to the tribunal, returning to it, unopened, correspondence he had been sent by it, saying he would not open any of its correspondence until he had advised the EAT, in writing, that he had recovered. The hearing of 7 May was then vacated. All four appeals were listed for 23 June. The bundle before us includes correspondence relating to the course of Mr Roberts' other appeals. On 18 June, Mr Roberts wrote to the tribunal saying he could not attend on 23 June as he had been ill with a chest infection. He asked for an adjournment until late July. Silber J refused the application.[55]The preliminary hearings of the four appeals came before Burton J, the President, and two members on 23 June. Mr Roberts did not, of course, attend. In his judgment Burton J reviewed the history of the adjournment applications Mr Roberts had made to the EAT and in the ET. In paragraph 40, Burton J said:
"40. We are entirely satisfied that we should and must deal with these preliminary hearings in the absence of the Appellant. The history which we have recited indicates that there is no reality in the various applications for adjournment that he has made over the years, or at any rate in the majority of them. So far as concerns the application to adjourn before us now: (i) we are satisfied he knows of the hearing; (ii) there is no medical evidence before us to satisfy us that he is unfit, even for work and certainly not, given the clear and proper distinction subsequently supported in the Court of Appeal, made by the Liverpool decision, to which his attention has plainly been drawn because he appealed it, that there is a distinction between showing that someone is unfit for work and that someone is unfit to attend at a hearing; (iii) there is the Order of Silber J which was in the clearest possible terms."
The outcome was that this tribunal dismissed all the appeals, save for one ground of appeal in one of them in respect of which it made an order adjourning its further consideration to a future date on conditions with which Mr Roberts was required to comply. Mr Roberts then sought permission from the Court of Appeal to appeal against that decision. On 4 November 2004, Deputy Master Di Mambro subjected that application to a condition in nature of an "unless" order, with which Mr Roberts had to comply by 15 November. He did not comply with it and so his appeal stands dismissed.[56]We have also been referred to a judgment of this tribunal, His Honour Judge McMullen QC presiding, on 13 December 2004. The Registrar had notified Mr Roberts that his notice of appeal in his case against Sefton Metropolitan Borough Council raised no arguable error of law so that this tribunal had no jurisdiction to entertain it. The judgment was on Mr Roberts' challenge to that decision under rule 3(10) of the Employment Appeal Tribunal Rules 1993 as amended. Mr Roberts did not attend the hearing. Judge McMullen said:
"5. The case manager of this case wrote on behalf of the Registrar in due course, acknowledging that the Applicant would have a hearing today under Rule 3(10). In respect of that, the Applicant had sought an adjournment until some unspecified date in March. The medical material which has been produced to me does not indicate why the Applicant is unable to attend in London today to press his claim. 6. The particular claim with which I am concerned is a Notice of Appeal against a Decision on review by the Chairman, Mr Reed; he declined to order a review because it stood no reasonable prospect of success in accordance with Rule 13(1). The reason the Chairman gave related to the absence of the Applicant, and he considered that those reasons had been set out fully by the full Tribunal and it was most unlikely that the Tribunal would change its Decision, and thus he refused. 7. The approach of the Applicant to the written presentation of his cases is to include intemperate and abusive comments about judicial officers and members of staff of the EAT and the Employment Tribunal. None of the material which he puts before me persuades me that I should take a different view from that of Judge Serota: no errors have been identified with a reasonable prospect of success, and I refuse the application under Rule 3(10). … 9. In my judgment no adequate material has been put before me indicating why this hearing today should not go ahead, and in any event I am not convinced that Mr Roberts would have attended. However, I have done the best I can on the merits of this case and indicate that the case has none, and I am not satisfied that sufficient evidence has been given to me indicating that this case should not go ahead. 10. Mr Roberts has made it clear that if that were to be the view today, he would appeal to the Court of Appeal. I will treat that as an application for permission to appeal and I refuse it since it, in my judgment, stands no reasonable prospect of success. The application is dismissed. 11. Since the Attorney-General has asked to be informed of multiple applications, and since he has commenced a restriction of proceedings application in the EAT, I will ask the Registrar to pass this judgment to him."
Mr Roberts was apparently incensed by that decision. In his skeleton argument he referred to it as "lie-ridden", condemned the procedure on 13 December 2004 as "irregular and improper" and asserted that Judge McMullen had "compounded the perversion of justice still further". Those observations are groundless abuse.[57]The main thrust of his skeleton argument is to the effect that this application is simply a continuation of the persecution to which the Government and employers have subjected him as an active trade unionist and devoted socialist. That assertion represents an elementary misunderstanding of the nature of this application. It seeks in no manner to restrict Mr Roberts' activities as a trade unionist or as a devoted socialist. All it is directed at restricting is the bringing and making by him of vexatious proceedings and applications in employment tribunals. Mr Roberts' application for an adjournment[58]On 23 May, Mr Roberts sent a fax to this tribunal saying he could not attend yesterday's hearing because of an ankle ligament injury. He enclosed a doctor's certificate "confirming the injury, which, he says, normally takes some eight to twelve weeks to heal". He says he saw Dr Sarfaraz at Wallasey's Victoria Central Hospital on 21 April and "was told there is no fracture but severe damage to the ligaments around the ankle". He said:
"The ankle has been bandaged continuously ever since, but I am still limping and experiencing pain when walking, and going about my every day tasks."
He said he has been taking prescribed pain killers. He asked for the case to be adjourned to July. He apologised for any inconvenience. The enclosed doctor's certificate, ostensibly that of Dr Halder, is dated 22 April and it describes Mr Roberts' problem as that of an "ankle sprain" and advised that he refrain from work from Friday 22 April to Wednesday 27 April. That period of recommended rest expired almost a month ago. There is no doctor's certificate to the effect that Mr Roberts was or is unfit to attend the tribunal yesterday and today, and the Deputy Registrar concluded that Mr Roberts' own assertion as to his discomfort was insufficient to justify an adjournment, one which was also opposed by the Attorney-General. Their opposition was expressed as follows, in a letter to the tribunal of 23 May:
"1. It is submitted by the applicant that it is a feature of Mr Roberts' litigation that he frequently seeks to postpone the date fixed for hearing, usually some time after it was fixed and often very shortly before the hearing is due to take place. The Tribunal are referred in particular to Paragraphs 9 to 11 of Richard Dingwall's affidavit of 13 th December 2004, served in support of this application. The applicant submits that the pattern of applications to postpone or adjourn hearings is evidence of Mr Roberts's intention to cause maximum inconvenience and cost to the applicant and to the Employment Appeal Tribunal. 2. It is further submitted that the certificate supplied by Mr Roberts does not support his application for an adjournment on medical grounds as it advises that he should refrain from work only for the period 22 nd to 27 th April 2005 and does not therefore cover him for the period set for this hearing."
That letter was from the Treasury Solicitor.[59]The Deputy Registrar was probably not as familiar with the pattern of Mr Roberts' adjournment applications as we are, although we are satisfied that her decision to refuse the adjournment was entirely right. His letter appears to show that even if he is suffering from some pain and inconvenience, he is able to walk and carry on his every day tasks, and there is no medical evidence to satisfy us that he is unfit to attend this hearing. There is anyway also simply no point in adjourning this case until July because the history we have related enables us to be confident that Mr Roberts will then produce another excuse for his non-attendance. What possible reason is there for us to believe that he would attend a hearing in July? His established practice is, with very few exceptions, not to attend court hearings and his letter of 23 May was just another manifestation of that. We would not expect him to change that practice by July.[60]For these reasons we refused to adjourn the Attorney-General's application and proceeded with it in Mr Roberts' absence. We have, however, considered his various written submissions, including those contained in his skeleton argument, although they do not appear to us to advance arguments of any materiality to the issue before us. Our conclusions[61]We consider that the lamentable story of Mr Roberts' many applications to employment tribunals speaks for itself. During the space of six years he commenced at least 24 tribunal applications, of which none had any apparent merit. Five were struck out following the non-compliance with deposit conditions, those cases being ones that the tribunal concluded had no reasonable prospect of success. Some 15 or so were dismissed following his non-attendance, usually following a last-minute and groundless application for an adjournment. The inference is that those cases had no merit either, and that he had no wish or intention to pursue them further. In five cases he did attend the hearing but they all failed as well. In two cases he walked out of the hearing. In nine cases he had costs orders made against him, a mark of the unreasonable manner in which he had conducted, or misconducted, his claims.[62]The most striking feature of his applications is his ever repeated endeavour to have the hearings in them adjourned. We have not attempted to count the number of adjournment applications he has made. Several have, of course, succeeded. That is not surprising. If a litigant writes a last minute letter to a tribunal, asserting that he is too ill to attend or to prepare for an imminent hearing, the tribunal is likely to be disposed to give him the benefit of the doubt, even though to do so will also be likely to cause inconvenience and/or worse to the other party. By "worse" we have in mind that litigation is a stressful business to both sides, and the prolongation of litigation by the other side's adjournments simply adds to that stress. But the employment tribunals before whom Mr Roberts brings his repeated claims and makes his repeated adjournment applications have become wise to his practice in this respect, and have rightly insisted on adjournment applications on health grounds being supported by current medical evidence. They have equally rightly approached Mr Roberts' typical last-minute adjournment applications with a critical eye, and have quite properly refused many of them. The result has usually been that the hearing would then come on in Mr Roberts' absence and would be dismissed. Such dismissals would not, however, be entirely automatic. The tribunal is still required first to consider the originating applications and notices of appearance. But since in most of Mr Roberts' case at least the initial burden of proof was on him, it is not surprising that in all cases of his non-attendance his applications were dismissed. From one point of view that may be regarded as a relatively painless exit for the respondent. But the more important point is that the only proper inference is that these cases should not have been brought at all, whereas they were brought and so caused the respondents to incur expense and suffer inconvenience and stress in defending them. They have also wasted the time of the anyway heavily committed and overworked employment tribunals, time which could and should have been devoted to cases properly brought.[63]Another feature of Mr Roberts' practice is his insistence on seeking reviews, in at least one case repeated reviews, of adverse decisions, and the making of him of his many appeals to the EAT, none of which latter, perhaps one ground in one appeal apart, appear to have had a shred of arguable merit in them. This is the hallmark of a vexatious litigant, just as is the abusive way in which Mr Roberts writes to and about tribunal chairmen and staff and is so ready to level allegations of bias and prejudice against the tribunals.[64]Another theme which tirelessly repeats itself in his complaints against the system is the assertion that his human rights are being violated, usually when yet another of his adjournment applications has been refused. Mr Roberts should understand that the respondents to his applications have human rights as well, one of which is the right to have his claims brought to a speedy and efficient disposal, an objective to which his preferred litigation practices appear to have no regard.[65]We are satisfied that Mr Roberts has habitually, persistently and unreasonably(a) instituted vexatious proceedings within the meaning of section 33(1)(a) of the 1996 Act and(b) made vexatious applications within the meaning of section 33(1)(b). Mr Roberts has, we are satisfied, been given the opportunity to be heard on this application but has not chosen to take it, although we have considered his written observations, which appear to us to provide no answer to the Attorney-General's application. In the light of the history of this matter, we are confident that, unless some restraint is imposed upon him, Mr Roberts will continue to make like unreasonable and vexatious applications.[66]As a matter of discretion, therefore, we are satisfied that we should make an unlimited restriction of proceedings order against Mr Roberts, and we will do so. We explain to him that this will involve no absolute restriction in his right to bring future proceedings in employment tribunals, or to make applications in them. But what it does mean is that he cannot do so without first obtaining leave to do so from Employment Appeal Tribunal under section 33(4) of the Act .

Cited in 2 later judgments