“33. Restriction of vexatious proceedings (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 before the Certification Officer, 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 before the Certification Officer, 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 before the Certification Officer, in any employment tribunal or before the Appeal Tribunal by the person against whom the order is made, (b) any proceedings instituted by him before the Certification Officer, 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 before the Certification Officer, 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 the making of an application in, any proceedings before the Certification Officer, 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 process, 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.”
“… ‘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. … From extensive experience of dealing with applications under s. 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 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.”
“8. …Unlike the position in the Barker case, we have had no indication from him [Mr Wheen, who did not attend the hearing] that he will not launch proceedings in the future, nor any suggested mechanism (for example, that he would not launch proceedings unless he had previously received favourable advice from solicitors or counsel or something along those lines) that he might be willing to impose upon himself. We do not suggest that it would be reasonable to demand that from him or that it would have sufficed to avoid an order under s. 33, but we do make the point that he offers nothing of any such kind at all as to his future conduct. 9. We have mentioned that many of his claims involve discrimination. Discrimination is generated or can often be generated merely by the personal characteristics of the individual concerned. It may fairly be said that for that reason facts justifying the launching of a claim for discrimination are more likely to recur to an individual than are, for example, the facts of an ordinary civil cause of action. Such a thought leads to us [sic] to be particularly cautious in relation to s. 33 and its application to discrimination cases. But 13 failed sets of proceedings as explained in Mr Lettrodt’s affidavit do represent a substantial argument that there have been vexatious proceedings launched not upon reasonable grounds. Moreover, if an order is made under s.33, then, as its own terms indicate, that is no total bar to Mr Wheen in the sense that he would still be able to ask for leave to proceed in the way that the section contemplates. If he is able to show to the appeal tribunal, to whom he makes application, that despite the making of the s. 33 order, some situation has arisen which truly justifies proceedings going forward upon reasonable grounds, then there is no reason why he should contemplate not being given leave to proceed. 10. We bear in mind the unusual feature of discrimination which we have mentioned and that it can reoccur and be vicious, but we do not see that that, of itself or in combination with other features relied upon by Mr Wheen, is any substantial force against the exercise of the discretion in favour of the Attorney General’s application. 11. Further, in favour of the Attorney General’s application at the discretionary level, we have to recollect that one object of s. 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. …”
“… public spirited citizen and vigorous campaigner on a wide range of public issues and specifically on all areas of race and sex discrimination and minority rights. He has campaigned vigorously on such issues with [Croydon]. This has involved extensive correspondence from the Applicant to Council members and senior officers of [Croydon], the submitting of questions to public meetings and the attendance at public meetings of LBC. In the course of these campaigns the Applicant has, among other matters, had cause to complain to the Council by question and otherwise that the present Chief Executive, Mr David Wechsler, was appointed without the vacancy for his position being advertised and that this constituted discrimination under the Race Relations Act as no applications were invited from suitable candidates of ethnic minorities.”
“35. … Nor do we doubt that there is much to be done to combat unlawful discrimination and promote genuine equality of opportunity in many organisations, including the Respondent. Nonetheless, this litigation, which has been brought and pursued at great public expense, is, in our view, misconceived and entirely devoid of legal merit. It is important to appreciate what can be achieved by litigation and what cannot. Not all campaigns can properly be conducted through the courts and tribunals. Moreover, in the context of discrimination, Parliament has recognised the need for enforcement mechanisms and provided for the creation of bodies (the Commission for Racial Equality (‘CRE’) being the relevant one for present purposes) designed to secure compliance with the law and the promotion of equality of opportunity. It is not for any individual (however well-intentioned) to arrogate to himself the role which those bodies exist to discharge. … We have no doubt that the Applicant brought this case having been much encouraged by the success of the earlier proceedings. Following the disappointment associated with the outcome here, we hope that he will pause and think carefully before resorting to litigation of this kind again. To do otherwise might be regarded as unreasonable.”
“2. … We have been struck by the surprising lengths to which he has gone to draw attention to his litigiousness. Indeed, the unsuccessful job application on which this case is based was so liberally stocked with references to his particular interest in ‘equalities’ issues and his extensive experience as an Employment Tribunal litigant that one could be forgiven for thinking that it was positively designed to deter the prospective employer from selecting him. … 3. … The hearing of this straightforward case occupied the Tribunal for all of the five days allotted to it, and, if not strictly policed, would have overrun even that unreasonably generous allocation. The bundle (in two volumes) runs to 637 pages. In our view, litigation on this scale is grotesquely out of proportion to the simple issues involved. …”
“In the course of cross-examination of the Respondents’ witnesses, the Applicant on several occasions raised the question whether they had judged his job application to be ‘bona fide’. We have to confess that as the case proceeded, we could not help wondering ourselves about that matter. Nonetheless, it was not put to the Applicant in terms that his job application had been bogus or a mere device in order to set up an Employment Tribunal claim. Moreover, that matter is not, we think, strictly relevant to the liability questions which we have been required to address. It might well be relevant if the Tribunal was dealing with, for example, a remedy hearing or a costs application. However, neither of those matters is (at this stage at least) before us. In those circumstances, we do not think that it would be appropriate to offer a view in these reasons as to whether this was or was not a bona fide job application.”
“157. Furthermore the object of such a complaints procedure is to seek to establish whether there has been any irregularity and in particular any unfairness or bias in the recruitment exercise. In our own very full inquiry we have found that there was no victimisation of any kind and that in effect therefore there was no real basis for the Claimant to raise a complaint at all…. 161. We do to a certain extent echo Mrs Parkes’ general comments in her final letters as to what is the Claimant’s overall intention with regards to his employer. He purports to claim that with one breath the Respondent is an employer with whom he is very anxious to work and become employed and for whom he would be a useful and valuable asset and yet at the same time it is clear that in these proceedings at any rate and so far as we can tell from the correspondence and references to other cases in other proceedings as well he has sought to mount a wide ranging attack on a whole variety of manager that they and many of their colleagues with whom they may occasionally chat are all biased against him.”
“6. … A considerable amount of time has been spent by all three members in considering the bulky papers in this case. Furthermore, the fact that we have had to do that and have this case listed today, has meant that other more deserving cases have not been heard. 7. We not only take the view that this appeal should be dismissed, but although we have not had the benefit of submissions from the Applicant, our view, having carefully considered the papers is that this appeal had no reasonable chance of success and was, in effect, unarguable. No case is made out for any bias on the part of the Employment Tribunal, nor has any case been made out, as it seems to us, against the Respondent in this case. We wish to be quite clearly understood and [sic: ‘that’?] we are not simply dismissing the appeals on the basis that the Applicant has asked us to withdraw his appeals, but on the basis that we are quite satisfied that the appeals were launched without any chance of success. These are appeals, in our opinion, that should never have been brought in the first place.”
“46. The case was however in the unanimous view of the Tribunal unusual and probably unique in the experience both of the Chairman and the members in the volume of documentation which had been produced in relation to the period of time and the events. In our experience the quantity of documentation emanating from the Applicant, to the Applicant and about the Applicant over such a short period of time of 3/4 months we found to be as a matter of fact without parallel in our sitting on lengthy cases as we do in this region quite often. The actual events and issues simply covered the period late May – early September 2001.”
“56. He also demonstrated a titanic recollection of detail of the events e-mails, letters, documents, discussions, allegations, and history with which we were dealing to a level which in our experience not many barristers attain. He had a quick and comprehensive mastery of the document bundle which was particularly impressive when we took into account that he had no one to act as a note taker and to help remind him of page numbers and other references. There was of course a disadvantage to the Applicant in being unrepresented in that he may well have had to work harder at home in the evenings, rather than leaving it to a paid advocate. However, as we find, for example amply demonstrated by the lists of cross-examination questions immaculately cross-referenced and divided where appropriate into questions and sub-questions, the Applicant did in fact present on his own behalf an enormously thorough and carefully prepared case on all the main issues identified at the hearing for directions broken down often into microscopic detail and exploring on many of the issues a whole variety of possibilities, hypothesis [sic] and alternatives.”
“371. We the majority find that the Applicant was by the whole variety of words he used provocative in the sense of seeking to provoke a reaction in very many of the words and documents which he used. This general approach was reflected in his routine of using lists of questions formulated both formally and informally. In any situation where he felt himself either under threat or where he was seeking to prove a point or establish a principle, he used what the majority can only describe as the weapon of questions. 372. There are very many examples of batteries of questions from the Applicant, many of the questions sub-divided. The more formal lists of questions came thick and fast under the more formally described heading ‘questionnaire’ and of course there are some which were described specifically as questionnaires under [section 65 of the Race Relations Act 1976 ]. The questions themselves are often formulated in very extreme language and/or legalistic language. This was plainly oppressive and daunting for the recipient and it was not surprising in our finding that much of the documentation went more or less automatically to Liz Williams and even Mr Khalia for a response. 373. More importantly we find, many of the questions were framed no [sic] so much out of a genuine desire to know the answer to the question, but as part of a particular campaign or issue being pursued by the Applicant in that particular line of correspondence. 374. On occasions where the recipient chose to answer the questions there was very often, by return of post or e-mail yet further questions argument and debate about the answers given. … 375. Another tactic used by the Applicant was to copy much of his correspondence, e-mails and letters to a variety of people up and down the management chain. In our own proceedings he used that copying in of management to correspondence as an avenue for cross-examination and sought wherever possible to enquire whether the recipient had read such and such a series of documents (and if not why not). We the majority find as well that part of the Applicant’s objective must have been in certain situations to cover his own position and to place the onus on others to react to him in one way or another and thus in turn to provide a possible excuse or mitigation for himself. … 377. On similar lines was the Applicant’s regular referral to the suggestion that he was ‘a thorn in the side’ of the Respondents and that his particular communication might be viewed by the recipient as ‘irritating’ or his reference to the fact that the recipient might be ‘irritated’. … 378. We find that the Applicant has extracted the phrase ‘thorn in the side’ from discrimination law and was seeking to provoke the recipient or witness into agreeing that they viewed him as a ‘thorn in the side’ or ‘irritating’. As we have already observed above we found the patience and tolerance of the Respondent witnesses to what we have no hesitation in finding highly provocative and offensive and extreme language used both orally and in writing against them over and over again to be remarkable. We find that there must also have been an element in the reaction of the managers of concern about ‘walking on eggshells’ because of the Applicant’s constant reference to discrimination and victimisation. … 382. Another regular feature of his questions and questionnaires was an insistence on a very prompt reply with a threat of ‘adverse inferences’ if there was not a reply or prompt reply. We suspect that the majority of those receiving a reference to ‘adverse inferences’ would not have had the Applicant’s own legal knowledge of that phrase. This was part of what we find to have been a very legalistically confrontational approach by the Applicant in what was at any rate in each situation at the beginning a ‘mere’ workplace difficulty. 383. In general terms again it is obvious from the history that the slightest workplace difficulty generated from the Applicant a deluge of paperwork, a request for meetings, a request for notes and minutes of the meetings, arguments about notes and minutes and so on and so on.”
“408. Nevertheless as a Tribunal in a case of this kind with issues of this kind we were urged to reach a conclusion by the Respondent about the Applicant’s motivation. The principal way in which we reach a conclusion about such an issue is to look at the words used, the language used, the tone of the language if it is writing and the tone of the language if it is spoken as evidence before us and the conduct and behaviour accompanying those words and language. We find that it is obvious simply from the words themselves that over and over again the Applicant used about as extreme language as it is possible to formulate about many of his colleagues and managers in respect of whom he had criticisms and complaints in the contemporaneous meetings and documentation which was adopted, repeated and rehearsed to a substantial extent in our own proceedings. … 414. Furthermore, it is yet a further notable feature of the Applicant’s oral and written communications that there is in many cases very little actual substance and fact behind or underlying the very extremely worded but also very general and vague language used by the Applicant. …In our majority finding this is a further reflection of the Applicant’s own knowledge that the lack of actual content in the majority of his applications can be hidden by his purported extreme sense of injustice, particularly when that alleged injustice is based on alleged racism or race victimisation.”
“(xli) … In his submissions Mr Griffith-Jones stated: ‘These complaints, even for the Applicant, are extraordinary, but they illustrate how low in the depths of silliness the Applicant is prepared to go and how he is prepared to make fatuous complaints without any attempt to relate them to the statutory requirements of the complaint of racial discrimination/victimisation.’ The Tribunal can do no better that agree with the sentiments of that submission.”
“42. In the light of those facts, this Tribunal has asked itself the same question as was considered by the EAT [the panel presided over by Mr Commissioner Howell QC which heard the appeals in Claims 2 and 5] at paragraph 34 of that claim (endorsing paragraph 35 of the decision of the Employment Tribunal promulgated on13 June 2001 (2304313/00)). The Employment Tribunal had stated that not all campaigns are appropriate to be conducted through courts and tribunals. The EAT stated that it is a misuse of Tribunal machinery for an individual to use it merely as a means of pursing some separate agenda or campaign. We conclude that in the light of all this knowledge it must have been the Applicant’s purpose to pursue such a campaign.”
“66. … In the case of a number of the claims made by the Applicant, particularly in respect of those relating to matters in 2003, we have expressed doubts as to the purpose of the Applicant and have suggested that he may well have been conducting a campaign. We have stopped short of branding the claims against the First, Third and Fourth Respondents as vexatious and/or unreasonable. We have stated on occasion that it appears that in pursuit of a campaign, the Applicant is deliberately drawing attention to his position and may be expecting, and even hoping, that these Respondents would reply to it in a way which he could describe as discriminatory or as amounting to victimisation. Whether that is so or not, we are not prepared to conclude that the Applicant plainly knew, in respect of most of the significant claims, that there was no reasonable chance of the claim succeeding. In our view, he must have known this in respect of some of the less significant of his claims, but we consider that there is nothing to be served by isolating those less significant claims as vexatious and unreasonable. 67. This, however, does not apply to the complaints of victimisation against the Second Respondent. In our view, quite patently the Applicant was well aware that these complaints had no substance whatsoever.”
“… To run such a case in such a way against any respondent would be despicable. To prey upon an organisation such as the First Respondents, which exists to promote improved race relations and to combat discrimination, was, we think, beneath contempt. It is, in our view, not easy to imagine a more appropriate case for a costs order. We are quite satisfied that the proper order is one requiring Mr Kuttappan to pay the totality of the Respondents’ costs.”
“42. We have made certain strong findings concerning the behaviour of Mr Kuttappan. We have also commented adversely on his judgment. On the other hand, it would be wrong not to recognise his abilities. He has a remarkable memory and an impressive command of detail. It is, to out minds, tragic that he should be, seemingly, so intent upon tilting at windmills and inhabiting a world of constant conflict, when with a change of heart his undoubted talents could, we feel sure, be put to constructive and even, perhaps, rewarding use. 43. If Mr Kuttappan does not see fit to restrain his litigious impulses, we feel bound to wonder whether the time is approaching when the Attorney-General should be invited to consider whether to seek an order under theEmployment Tribunals Act 1996, s. 33 .”
“… that should the Applicant be involved in any other cases where he is uncertain about the viability of a claim being made, it is his duty and responsibility to make sure that he has got a good case on any particular point at an early stage in the proceedings and not simply wait to see how the lie of the land looks before he decides finally to proceed or not to proceed.”
“51. … Once the Claimant had become aware that his application had been rejected, he subjected the Respondents to a volume of correspondence, which the Tribunal considered was unreasonable, even making allowances for the fact that the Applicant was obviously and understandably disappointed that he had failed in his application. We do not conclude on the evidence that the Claimant had any intention of taking on board any explanation for his non selection from the Respondents, and was determined to bring Employment Tribunal proceedings against the Respondents however unreasonable and satisfactory the Respondents’ explanations for his non selection were.”
“59. I believe that: (a) the Applicant has little or no knowledge about what exactly was going on within the London South Employment Tribunals in relation to my claims. (b) The Applicant had made no effort to find out exactly what was going on within the London South Employment Tribunals in relation to my claims. (c) He did not find out or make any effort to find out the exact reasons(s) why so many of my claims were dismissed by the London South Employment Tribunals and/or why there were so many unfair, improper, inappropriate and personal criticisms about me or my claims in the judgments of the London South Employment Tribunals. 60. I also believe that: (i) The Applicant had never critically examined his own attitudes and prejudices to me and/or to the people from minority ethnic communities, particularly adult immigrants, who had made claims of racial discrimination against white British people. (ii) He did not realise his own attitudes and prejudices towards me and/or to the people from minority ethnic communities, particularly adult immigrants, who had made claims of racial discrimination against white British people. (iii) He believed that many people from minority ethnic communities were making claims of racial discrimination because they had no other claims to make and that their claims were false, frivolous, misconceived or vexatious. (iv) He also believed and/or continues to believe that all or almost all my claims were false or vexatious.”