HER MAJESTY’S ATTORNEY GENERAL APPLICANT v MR V BRUCE [2006] UKEAT 0586_05_3101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0586_05_3101Case No Appeal No. UKEAT/0586/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HER MAJESTY’S ATTORNEY GENERAL APPLICANTAPPELLANTMR V BRUCERESPONDENT
Before
Mr Justice Langstaff Ms B Switzer Mr S YeboahDate 31 January 2006
[1]APPEARANCES For the Applicant MR A TOLLEY (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) 1 Kemble Street London WC2B 4TS For the Respondent MR V BRUCE (The Respondent in Person) SUMMARY Practice & Procedure: Restriction of Proceedings Order/Vexatious Litigant Litigant who had instituted 78 applications containing 80 claims, only two of which were successful, made subject to a Restriction Order. Court did not accept that he was entitled to make a claim that he had been discriminated against simply upon rejection at interview. THE HONOURABLE MR JUSTICE LANGSTAFF Application to Cross-Examine We have been invited to make an order requiring Catherine Edwards, Senior Executive Officer and Case Officer of the Treasury Solicitor, to attend this Tribunal for cross-examination upon an Affidavit dated 5 October 2005.[2]The initial thrust of the application arose because Mr Bruce was concerned that we might treat as fact what is plainly to us comment based upon documents relating to some 78 applications which Mr Bruce has, over the past 10 years, made to employment or industrial tribunals.[3]It has become apparent to him that our view of the law, which I am happy to record is shared by Mr Tolley who appears for the Attorney General, is that an Affidavit is there to convey fact. Its primary purpose is not to convey comment nor a view and accordingly, he has not persisted in seeking her attendance here for cross-examination upon those matters which may properly be analysed as comment as opposed to assertions of fact.[4]He has continued to ask that she come essentially to answer these questions: why is the Affidavit as subjective in its view of him as it appears to be? Why she has been selective in the extracts from cases to which she has referred? Whether there has been proper documentation disclosed? To answer questions as to her or the Attorney General's sources of information about Mr Bruce; to deal with deliberations which, it appears, the Attorney General may have had in 2000 as a consequence or as a result of which he then determined not to proceed under s42 or s33 of the Employment Tribunals Act 1996 so far as Mr Bruce was concerned; and Mr Bruce thinks that there may have been further deliberation in 2003. He would like to know what or who prompted this application. He points out that her Affidavit does not say of the decision in 2000, as it might have done or should have done: "We were aware, as at the year 2000, of a number of claims brought by Mr Bruce. We took legal advice - even so far as to say from X QC, or whoever - and then decided on these particular grounds not then to take action".[5]We have to ask whether the answers to any such questions as Mr Bruce may have asked would assist us in determining this particular application. In doing so, we have regard to a number of considerations which, collectively, may be called the overriding objective beginning with its opening words which require this Tribunal and, indeed, any Civil Court to have regard to what is fair and just in all the circumstances of the case, but having particular regard to a number of factors. Amongst those factors are the need for expedition, cost, the saving of the resources of the parties and taking an approach which is proportional to the issues.[6]We also, however, take into account the need for any evidence to be relevant. We consider that our task is to look at the primary material which has been produced through the medium of Ms Edwards' Affidavit, stripping out from it what is properly to be regarded as comment, listening to the submissions of Mr Tolley for the Attorney General and Mr Bruce in his own defence on the two rival sides and coming to a determination whether, in our view, on that material the Attorney General has satisfied the burden of proof which rests on him under s33 of the Employment Tribunals Act 1996 .[7]Because it is our view that is sought, we do not think we are going to be helped, nor do we think it relevant that we should investigate, what someone else's view is or was. It is not relevant to us whether Catherine Edwards thinks that the case brought against Mr Bruce is or is not a proper case any more than it is relevant that Mr Bruce thinks it is not. We have to determine it not upon the views of others, but upon the basis of our own views of the facts. It follows that we would not be assisted by knowing what view the Attorney General took in the year 2000 or in the year 2003 as to the strength of any possible case against Mr Bruce. We have to determine the case on the material which is before us now. There appears to be no argument that we may examine matters from the first Tribunal claim onwards. Mr Bruce said so in his submissions to us before we retired and we propose to do so and come to whatever the appropriate conclusion is upon those facts in the light of the submissions which both sides will address to us.[8]Because, therefore, primarily it seems to us that Mr Bruce will be cross-examining to achieve answers which would be, once given, irrelevant to anything that we had to consider; that we will reject the application. We support that decision in any event by saying that we would anyway not have thought that the extent to which those questions might assist us would, in the light of the overriding objective, justify our exercising our discretion and powers to do so since it does not appear to us that there is any significant difference in the appreciation of the underlying facts between the parties. What is different is the analysis which each party makes based upon those facts.[9]Accordingly we reject this application. Only this needs to be added: in the course of our summary of the position on behalf of the Tribunal to Mr Tolley before inviting his response, we suggested that it might be the case that Mr Bruce would wish to raise an issue of bad faith in the mounting of these proceedings. We have not, however, approached the determination of the question of whether Miss Edwards should give evidence or not upon the basis of an allegation of bad faith because Mr Bruce was at pains to point out in his response that none was being made. He does not preclude making such an allegation at a later stage in the proceedings, but it seems to us that if no allegation is actually being made, that it should represent no part of our determination either way as to whether we exercise our discretion procedurally to require Catherine Edwards to attend for examination. For that reason, and conveniently at 1 o'clock, this application is rejected and we shall proceed to hear Mr Tolley's opening of the way in which he puts the case at 2 o'clock. Main Appeal[10]This is an application made to us under s33 of the Employment Tribunals Act 1996 by the Attorney General for a Restriction of Proceedings Order. That is a draconian order which restricts, though it does not extinguish, the rights of an individual subject to such an Order to commence proceedings, in this case before an Employment Tribunal or the Employment Appeal Tribunal without first obtaining the permission of the Employment Appeal Tribunal.[11]Section 33 imposes onerous criteria. It provides "(1) If, on an application made by the Attorney General…under this section, the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground(a) instituted vexatious proceedings…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". There is little, but some, dispute before us as to the applicable law. We shall set that out before we turn to the particular facts which give rise to this application.[12]It is common ground that s33 gives us a discretion which, as with any discretion, does not have to be exercised if the Attorney General satisfies us of the factual matters contained in s33. There is no further guidance, however, to the way in which such a discretion, which will be exercised judicially, should be exercised other than that which is to be gained from the context of s33 as a whole and, it may be, from the purpose behind the section which was identified in the Attorney General v Jones [1990] 1 WLR 859 CA (in particular see Lord Donaldson MR between p ages 862H and 663B and Staughton LJ 865C-D).[13]We have to be "satisfied", which means that the burden of proof rests upon the Attorney General. That is a proof on balance of probabilities though given the nature of the application, such proof should plainly be cogent.[14]The word "has" which comes before "habitually" and "persistently" etc indicates that this Court should take an historical perspective. What matters is what has happened. This Court does not have to be satisfied, in order to come to the discretion stage, as to what the Respondent might intend for the future.[15]"Habitually" and "persistently" indicate an element of repetition. Thus, it was said in the Attorney General v Matthews [2001] EWCA Civ 254 at paragraph 57 "….the requirement of repetition was satisfied in that, although the defendant had not repeatedly sued the same party or relied on the same subject matter, he had repeatedly brought proceedings which were vexatious in nature. If I may respectfully say so, Lord Justice Rose has set out, in a way on which I could not improve, the position in paragraph 54". That extract from the judgment of the Lord Chief Justice, Lord Woolf, takes one back to the citation which was approved from Rose LJ in the earlier case in the Divisional Court. Paragraph 54 of that judgment says this:
"Granted that repetitious conduct is a necessary prerequisite for the making of an order, what gives rise to that repetitiveness necessarily depends, it seems to me, on the circumstances of the particular case. In making the determination whether or not there is that necessary element of repetition one looks at the whole history of the defendant's litigious activity. In some cases that activity will focus upon a particular defendant. In some cases it will focus upon a particular grievance. In some cases it may be represented by numerous claims against a wide range of defendants in circumstances where no reasonable cause of action exists. In this last category of case, as it seems to me, the conditions of section 42" [we interpose to note that s42 is, in its material terms, identical to s33] "may be fulfilled just as they may be if a particular defendant or a particular grievance is the focus of the defendant's activity. As the passages in the judgment in Vernazza to which I earlier referred, make plain, one has to look at the whole of the circumstances, the way in which the proceedings were instituted, whether with or without reasonable cause, and also the way in which subsequently they were conducted by way of hopeless appeal or otherwise. All of those matters have to be considered."
[16]The requirement that there should be no reasonable ground does not, in our view, mean to say that there must be no theoretical right to bring an action. What has to be looked at, in the light of the authorities, is the whole picture. Thus, it may be said that an individual may have a right in the employment sphere to complain that he or she has been unfairly dismissed. The right is there to be exercised. It is provided by Parliament to remedy the problems which arise in unfair dismissal. But if it were plain that an employee had, for example, put his hand into the till in order to fill his own purse dishonestly, a claim that he had been unfairly dismissed for that reason, by an employer who adopted a procedure which no one could regard as anything other than impeccable would rightly be regarded as not having any reasonable ground. Theoretically, he would have; for the purposes of the application of s33, he would not.[17]"Instituted" means the proceedings must be those of the claimant concerned. In the case of Attorney General v Wheen [2000] IRLR 461 (a decision of the President of this Tribunal, which was upheld on appeal before the Court of Appeal [2001] IRLR 91) Lindsay J at first instance in this Court said that this meant looking at proceedings begun by the Respondent. It is common ground, we understand, that in light of the Vernazza case, [1959] 1 WLR 622 (approved by the Court of Appeal at [1960] 1 QB 197) the whole history of the matter has to be looked at. It is not just a question of looking at the very moment when proceedings are issued. It is thus relevant to note that it is important in the present proceedings to focus not just upon those matters which may have led the Respondent to issue proceedings but upon, for instance, his conduct thereafter in ceasing to proceed with those proceedings where it appeared to him that there was no evidence to support their continuation or no reasonable prospect of success.[18]It is as to the meaning of "vexatious proceedings" that there is a difference between the parties. In reliance upon the case of Marler Ltd v Robinson [1974] IRLR 72 (in particular at page 76) Mr Bruce draws attention to the definition there contained of "vexatious". What is said is this, in the judgment of the National Industrial Relations Court delivered by Sir Hugh Griffiths:
"If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to \pursue it. If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee".' Later on the same page, he said this: "
It is for the tribunal to decide if the applicant has been frivolous or vexatious and thus abused the procedure. It is a serious finding to make against an applicant, for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised" That, it will be seen, looks to the motivation of the employee in large part, though not entirely.[19]In the case of Attorney General v Barker [2000] 1 FLR 759 at page 764B-E, the Lord Chief Justice Lord Bingham of Cornhill expressed his satisfaction that in that case, the respondent had indeed instituted vexatious proceedings. He described the hallmark of vexatious proceedings as being, in his judgment, that they had little or no basis in law ( at least no discernible basis) and then he said this:
"…. 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"
He went on to comment in respect of the jurisdiction under s42, which we have already observed echoes that of s33, that the Court has become familiar with the hallmark of persistent and habitual litigious activity. He commented that the hallmark usually was that the plaintiff sued the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations after it had been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relied on essentially the same cause of action, perhaps with minor variations after it had been ruled upon in actions against successive parties who were, if they were to be sued at all, should have been joined in the same action; that the claimant automatically challenged every adverse decision on appeal and that the claimant refused 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".[20]We see in Barker a concentration not upon the motivation of the litigant as giving rise to the description "vexatious" but, in particular in the extract first cited, a concentration upon its effect upon those who are to be subject to the litigation as defendant or respondent. We regard those comments on the same page to which we later drew attention as being exemplars of situations in which a Court can find that there has been vexatious litigation. It is not a list of requirements, each of which has to be satisfied. It is a set of examples, any one of which will satisfy, in an appropriate case, the relevant test.[21]In our view, there is perhaps a difference of emphasis between Marler and Barker .[22]However, as Mr Tolley pointed out, and we accept, Marler Ltd v Robinson is, as the extract which we have cited shows, a case relating to the exercise of a Tribunal's discretion to award costs if that Tribunal should consider that the proceedings before it have been vexatious. It is not, therefore, direct authority since it does not directly consider s.33 (or s.42). The direct authority of the Divisional Court relates to this jurisdiction. We regard, therefore, that as the authority which we should follow. We adopt, therefore, the approach to the definition of "vexatious" indicated by Lord Bingham of Cornhill and, in particular, note that our concentration should be not so much upon any question of bad faith or otherwise of the respondent, but upon the effect that the proceedings have, and whether it can be said that the conduct of Mr Bruce in the present case is such that properly and sensibly described he has kept on and on litigating when earlier litigation has been unsuccessful and when, on any rational and objective assessment, the time has come to stop, or (to take one of the other exemplars) if he has sued successive plaintiffs in reliance on essentially the same cause of action, perhaps with minor variations after it has been ruled upon.[23]If we are satisfied such that we are called upon to exercise our discretion, we direct ourselves that we should have regard to the Attorney General v Jones [1990] 1 WLR 859 CA. In that case, the then Master of Rolls, Lord Donaldson, at 862H-863B set out the Court of Appeal's view as to the mischief to which s33 (s42 in that case) was directed. "This is that the compulsive authority of the state vested in the courts and the judiciary shall not be invoked without reasonable cause to the detriment of other citizens and that, where someone takes this course habitually and persistently, that person shall be restrained from continuing to do so, but shall nevertheless be as free as any other citizen to use those processes if he has reasonable cause for so doing". Staughton LJ at page 865, having commented upon the drastic restriction of civil rights, which any order made constitutes, noted that there must come a time when it was right to exercise that power for at least two reasons. "First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not".[24]We derive from the authorities the following further points which are relevant to our evaluation of the facts which have been put before us. First, we accept that the litigation, which is habitually and persistently brought, does not have to be brought against the same party. That we consider plain from the Matthews case at paragraphs 61 and 69, the decision of Lindsay J at first instance in the Wheen case at paragraph 6(10) and a decision of Rimer J in the case of the Attorney General v Roberts decided in this Tribunal on 25 May 2005 (UKEAT/0058/05) at paragraph 6.[25]Secondly, the fact that a litigant having begun proceedings then discontinues those proceedings, is not in itself a defence to any application. That is plain from that which the Court of Appeal in Wheen say per Keene LJ at paragraphs 28-29 of the decision. We consider it is, however, part of the overall picture to which we have to have regard.[26]Thirdly, we do not think that there is any significant Human Rights point that can be taken which would deprive the jurisdiction of any effect, although it might be said that exercise of the jurisdiction interferes with the rights otherwise guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The point was raised, again in Wheen – it was dealt with by Keene LJ at paragraph 38 with the agreement of LJJ Mummery and Nourse.[27]Fourth, as will become plain when we turn to the facts of the present case, there has here been some success by Mr Bruce in his actions. Success, in itself, in one or other of the claims which is brought (or it may be in a number of them) is, in our view, no defence to an application. This may be demonstrated by reference to the cases. Thus, in the Matthews case, one case out of 33 might be said to have been successful because a payment into Court was accepted. That did not dissuade the Court from thinking that a s33 order was entirely appropriate. In the Covey case which was part of the same application considered by the Court, though in relation to a different litigant, three actions out of 54 were allowed to proceed. The fact that there may have been a success or two or three or more does not, in our view, mean that the litigant who has been successful in some applications which share common features, even with those in which he has been allegedly or demonstrably unsuccessful, is thereby given a sure-fire guarantee against a s33 order being made. That this must be right on reason and logic is clear. Otherwise, a litigant who secured, on the 1000 th time he brought a case, a judgment in his favour could claim that no regard could be had to the 999 times when he had brought claims without any reasonable justification for doing so. We think the answer to this point is once again to return to the Vernazza emphasis upon taking an overall view of the picture presented to us as a matter of fact.[28]Finally, we should observe that we have been referred to three reported cases in which orders have been made which relate to this jurisdiction. They are the cases of Wheen , of Roberts and a case to which we have not thus far referred, that of HM Attorney General v Ayovuare . Each of those cases concerns an application for such an order which was successful. That of Ayovuare was a decision of Keith J at this Tribunal on 30 October 2003, (appeal number UKEAT/0614/03). In that case, and in the case of Wheen , the respondent was shown to have brought proceedings which related to his failure to secure a job or job interview after applying for one. Discrimination was alleged. In the Roberts case what inspired the litigation by Mr Roberts was similarly disappointment on his application for employment. In that case, he alleged (and alleged persistently) that the reasons were because he had been involved in trade union activities.[29]In all of those cases, purely taken numerically (as will be shown) the number of applications to a Tribunal which had been made and, in particular, the number of applications unsuccessfully made, were less than in the present case. That, as we have indicated, does not mean that we should treat this case as one to be resolved purely on the numbers. It is a factor. But it gives some reassurance to know that the mere facts that a litigant may apply for a job and be refused in circumstances in which he has some suspicion that the employers' refusal or rejection has been motivated by discrimination and not by his true qualities or lack of them do not, without more, necessarily amount to a reasonable ground for proceedings.[30]Before we leave the law, we should say this: that other cases and legislation are also relevant to the determination of the Attorney General's present application. Those are cases, and a statute, which relate to disability discrimination and to the approach which Tribunals and Courts should more generally take to discrimination. It has long been accepted that an individual who is discriminated against cannot sensibly expect the alleged discriminator to confess to discrimination. Usually it may have to be inferred and sometimes from slender or apparently slender evidence. We shall come back to that law in dealing with the response which Mr Bruce makes to the application of the Attorney General. The Facts[31]Mr Bruce is a man who is now in his mid-fifties who has, from a young age, suffered seriously from the after-effects of polio. He is a wheelchair user. The movements of his arms and hands are affected by this medical background. Throughout his life, he has suffered from the after-effects of those disabilities. He tells us that he has, since 1995, applied for over 300 jobs, he has been interviewed on some 10 occasions and has been offered a job on one occasion. The Attorney General, when these proceedings began, asserted that he had brought 80 claims of which the Attorney General knew by means of 78 applications, 33 of which were withdrawn by Mr Bruce before proceeding to any hearing of the merits, 14 of which were dismissed after hearing, with a further five dismissed on procedural grounds and 14 of which were settled (including two negotiated withdrawals, if not more). There have been six appeals which have been rejected and two applications for a review. In the light of Affidavit evidence which Mr Bruce put in in response, those figures need to be modified. He, the Attorney General, indicated that the result of a further six claims was unknown. In the light of what was put forward by Mr Bruce, the position now is that 19 cases are to be treated as having been settled and not 14, as first claimed. One case remains unknown. The Attorney General noted that two proceedings have been instituted too recently for an outcome to have been reached. We have been told by Mr Bruce that one of those was settled. The other has gone to a merits hearing and a decision is awaited. On two occasions, Mr Bruce succeeded.[32]The Attorney General, through Mr Tolley, draws attention first to the sheer number of cases brought. He notes, however, also, that there is evidence that the proceedings were of a vexatious nature in the sense used in Barker . Thus, in two respects, Mr Bruce has used the same argument time after time when it was rejected and therefore, in common parlance, the case for the Applicant is that he should have known better than to run the same argument again. Thus, in case number 17, a claim against Morley Mitchell, the discrimination alleged by Mr Bruce was that firstly, the firm failed to grant him an interview for a position as a solicitor, particularly to carry out personal injury work and that that was a result of his disability; but also he alleged that the respondents failed to make adjustments to provide facilities so that he could be so interviewed. At page 2 of that decision, page 136 of the bundle, the Tribunal note that though applying for a post as solicitor, he was not qualified as a solicitor and admitted to the roll of solicitors at the time. At paragraph 5, the Tribunal noted that it was fundamental to the case that the Applicant's purported application was in respect of a position which, on his own evidence, he did not qualify to be considered for. He admitted, apparently, that at no time did he qualify for the specific vacancy about which he complained of his failure to be interviewed.[33]He argued, so the decision shows, that it would have been a reasonable adjustment to disregard the criteria which apparently were being applied. That argument was not entertained by that particular Tribunal, but was a forerunner of an argument which was later to be utilised. It was to this effect. The Disability Discrimination Act 1995 , as it then was, provided by s5 that discrimination against a disabled person could take one of two forms: (a) it could be less favourable treatment – and we stress the next following words – "for a reason which relates to the disabled person's disability"; or it could be, by s5(2), a failure to comply with a s6 duty which the employer could not show to be justified. A s6 duty is a duty to make adjustments. That duty is sometimes called the duty to make reasonable adjustments, though that may tend, sometimes, to confuse an enquiry into the adjustments which might be necessary with the evaluation as to whether it is reasonable to make them. S6(1) reads, so far as relevant to this argument: "Where (a) any arrangements made by or on behalf of an employer…place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case for him to have to take, in order to prevent the arrangements…having that effect".[34]The argument advanced by Mr Bruce (foreshadowed in the case to which we have just referred) was that, as a disabled person, he had not had the same advantages open to others of securing qualifications and similarly, because of difficulties in obtaining employment, which difficulties are shared by disabled persons generally and, in particular, wheelchair users, he had not had the opportunity to gain experience. Thus the possession of a university degree, or a qualification by terms of experience which might be a necessary criterion for an able bodied candidate to meet, should be adjusted in his case so that he was not necessarily subject to those requirements.[35]We have to say, speaking for ourselves, that we would not have regarded this argument as in the least promising. It could only succeed, if it ever were to succeed, if the requirements to which reference is made were marginal and it could only succeed, if it were to succeed, in the presence of substantial evidence that showed that the reason for the lack of experience or lack of qualification was, indeed, disability rather than a generalised appeal to the generalised difficulties which people with disability generally have. A litigant certainly could not, in our view, sensibly nor reasonably expect the argument to be accepted if the effect of it was that there should be one set of stringent qualifications for those who were not disabled and a different and more relaxed set of qualifications for the same post for those who were.[36]However, we cannot say, and do not say, that it was wholly unreasonable for Mr Bruce to test the water in an appropriate case. In a case which he brought against Eversheds (tab 18 of our bundle – decision 17 February 1998) the argument was, indeed, mounted in terms (see paragraph 4). It was mounted, however, late. At paragraph 10, the Tribunal recorded the submission that Mr Bruce maintained that the requirement of the respondents as to a good law degree from a first class university was discrimination against him as a disabled person, (which the Tribunal found as a fact it was not) and recorded his views that the only universities which qualify as first class universities were those of Oxford, Cambridge and Durham. The result of that particular case, it should be noted (see paragraph 14) was that the Tribunal concluded that Mr Bruce should pay a sum of £100 by way of costs to the employer respondents. In setting that sum, they took into account his apparently restricted means.[37]The same argument, Mr Tolley pointed out to us, was then adopted in the case which he brought against the Council of the City of Stoke-on-Trent (tab 24 in our bundle) heard in November 1998. The argument is set out at paragraph 12. The relevant part states:
"Secondly, the Applicant complains that the Respondent failed to make reasonable adjustments to their short-listing criteria, having regard to the disadvantage that disabled people in general and he, in particular, suffered in the areas of education and employment…He asserts that the respondent should have treated him as having the experience which, for that reason, he lacked"
. The argument is further analysed at paragraph 16 which invited the comment by the Tribunal towards the end of that paragraph that the problem was that the applicant was seeking a post with the respondent where the experience he had gained was not directly relevant or central to the work which would be required of him.[38]Having been rejected, and the obvious flaw in the argument pointed out, the case at tab 29 demonstrates that, again, the same argument was sought to be advanced (see page 212, para 2; 214, para 5.7) in that at tab 34 against Milners, argued on 12 January 1998 the same argument surfaces again (see paragraph 4). In the next case of our bundle (35) against Kingston-upon-Hull, paragraph 6 of the Tribunal decision reached in 1999 reveals that the submission of Mr Bruce was that there should have been a number of adjustments. The Tribunal commented that the adjustments he sought would have been such as to have required the Respondent to ignore that the applicant did not have local government experience and ignore that he did not have a degree, because of his difficulties in obtaining a degree for reasons relating to his disability.[39]Matters did not stop there. In case 61, (page 693 of our bundle) the case brought in Bristol brought against Mr Lock and Mr Midas, the same argument was advanced (see paragraphs 25-28). It does seem that the same argument was being advanced repeatedly despite a signal lack of success.[40]Mr Bruce, in his submissions, argued further that any requirement for skills or experience in a particular field such as employment law involved disability discrimination. Mr Tolley refers to claims 63 and 64 and notes that in the latter (against Thompsons) the argument was rejected by the Employment Appeal Tribunal on appeal yet Mr Bruce still advanced it in the former (which despite being numbered "63" was decided later than "64"). He then comments in this way in his Skeleton Argument. "…. although Mr Bruce had been told repeatedly in ET hearings that his applications for employment were rejected because he lacked the necessary skills and/or experience and that defence was upheld repeatedly by Employment Tribunals, he persisted in making the very same allegation in most, if not all of his claims, that he was the best candidate for the position so the only conclusion to be drawn from his rejection was that he was discriminated against because of his disability".[41]We observe that part of that commentary is justified, but part is not. It is not, in our view, correct to say that he was alleging in most, if not all of his claims, that he was the best candidate for the position. It has now been shown to us that that claim was expressly advanced in sufficient cases for us to be able to say that. Nonetheless, we do take into account the fact that a claim could only have any realistic prospect of success if in applying for the position which he did, Mr Bruce had some prospect of appointment which was not unrealistic and either that he should have been appointed as being the best candidate or that the procedures adopted by the would-be employer were such as to disable him from having the chance, at least, which he should have had of competing with others. However, the complaint about persisting in hopeless arguments was fully justified.[42]In a second respect, it is said, Mr Bruce again raised arguments which he persisted in without stopping when he should have done. In particular, Mr Tolley drew our attention to a claim which came before this Tribunal against the Leeds Citizens' Advice Bureau and four named respondents (tab 72). In that, Mr Bruce sought to argue that though nominally a volunteer at the Citizens' Advice Bureau, he nonetheless fulfilled the requirements of the Employment Rights Act 1996 as being an employee. The Leeds Tribunal rejected his argument. He appealed to this Tribunal. This Tribunal consisted of the judicial member of the presently constituted Tribunal, together with Mrs Mathias and Mr Singh. It heard Mr Bruce's application that his case should proceed to a full hearing . It rejected that on the basis that his argument that he was an employee disclosed no arguable point of law. That decision constitutes, it is common ground, an authority. It could have been appealed. It was not.[43]Shortly, thereafter, Mr Bruce brought a claim in which exactly the same point of law, though against a slightly different factual background, arose. That was a case brought against Addleshaw Booth (it is tab 71 in our bundle). We have already mentioned a case brought against a charity, Dial House, Chester. An application was made by the respondent "employer" to strike out the Originating Application. That was successfully resisted by Mr Bruce. Although he had been personally involved in the argument before this Tribunal in the Leeds CAB case to which we have just referred, he did not mention that to the Tribunal hearing the strike out application. He did not refer them to binding authority of which he knew. He accepts that he is justly and reasonably to be criticised for that failure, though asks us to accept that he did not deliberately withhold his knowledge from the Tribunal. There certainly is no doubt that he should have revealed the existence of the authority of which he knew.[44]The Tribunal, once it realised that there was such an authority, reversed its earlier decision and Mr Bruce was subject to criticism by this Tribunal, HHJ McMullen presiding (see the report of the decision of that Tribunal 20 August 2004 – judgment 16 September 2004 – reference: UKEAT/0555/04) which noted that the Tribunal had found it surprising that Mr Bruce had not drawn to its attention our decision in the Leeds CAB case. He noted at paragraph 41 in a passage which has been the subject of some debate in the Affidavit evidence before us as follows:
"We have no doubt that Mr Bruce is a past master in understanding the limits of the employment protection and protection against discrimination in the employment field and in their application to persons giving their time as volunteers to charitable organisations. His Originating Application, stayed pending other proceedings, was bound to fail. He was at fault in failing to draw the attention of the Employment Tribunal to binding legal authority against this proposition. He failed to recognise the force of further binding authority, Melhuish v Prior drawn to his attention before the EAT hearing in this case. He did not appeal the finding against him in Bruce v Leeds CAB on this very point. He considers that the legal point of these proceedings has been incorrectly decided. With recent EAT authorities against him on this point, the Originating Application could not get off the ground if they had been available to the Employment Tribunal. The complaint to the Employment Tribunal was misconceived and Mr Bruce acted unreasonably in not showing the authority to the Employment Tribunal. Once two of them were provided to it by the Respondent, the review decision was inevitable. With now five recent EAT authorities before us, this appeal was misconceived and Mr Bruce acted unreasonably in pursuing it"
. Then he added this to which exception is taken by Mr Bruce in particular "With his extensive litigation experience and his qualification as a solicitor, Mr Bruce well knew this". For the reasons which we have given, we do not think it particularly profitable, in the circumstances of this case, to investigate the motive of Mr Bruce. The fact of what happened speaks for itself.[45]Thus, the Attorney General, through Mr Tolley, effectively made the point that in those two particular respects, the argument in relation to reasonable adjustments and the argument in respect of volunteers, Mr Bruce showed a persistence in addressing an argument to Tribunals which he ought to have realised, particularly given earlier experience in advancing that argument, was highly likely to fail.[46]He then draws our attention to the number of claims which were withdrawn. In the course of his submissions before us, Mr Bruce accepted, in answer to a specific request for clarification of his case from the bench, that those cases which were withdrawn were withdrawn because they were ones in which there was no evidence of discrimination or there was no reasonable prospect of success should he continue. It follows, we think, as a matter of inevitable inference that some 33 cases were commenced in at least a substantial proportion of which there was no evidence to show any discrimination. If there was no proper case of discrimination, the question arises why the proceedings should have been started in the first place. This is a matter to which we shall return when we review Mr Bruce's response.[47]With those submissions before us, we turn to see how Mr Bruce attempts to answer the issues of fact and deal, should it be necessary, with any issues of jurisdiction. What he argues to us relies upon a number of points. First of all and as an overriding issue, he draws our attention to the position of the disabled person in society. We do no discredit, we hope, to his argument by noting that he produced copious material before us to show that a disabled person, even today, is at a substantial disadvantage in obtaining employment. He demonstrated that this position in the 1970s and in the 1980s had been recognised by authoritative reports and, no doubt, this lay behind Parliament's recognition of the problems the disabled face when it came to enact the Disability Discrimination Act 1995 . That Act was there to remedy a particular social problem. That it has not done so, perhaps, to the extent which the legislators would wish, may perhaps be indicated by the reversal recently of the burden of proof and the recent alteration in the terms of the statute. He comments that Parliament has, by permitting proceedings under the Act, enabled somebody who is or may well be, the victim of discrimination, to put an employer or would-be employer to annoyance, expense and trouble because that is necessarily implicit in defending a claim. One has to assume, therefore, that that expense, time and trouble is proportionate because Parliament has declared it so.[48]Such is the nature of discrimination that it is sometimes very difficult to detect. It is rarely admitted that a person who is disabled and who applies for employment may well be rejected by reason of that disability. He may be unable to prove it without more. The fact that there is a genuine basis for thinking that there may well be discrimination in such a case is demonstrated by the poor level of entry generally of the disabled into the labour market. Thus, issuing proceedings, serving a questionnaire, entering into correspondence, requesting the reasons for rejection is, in general terms, legitimate because without it discrimination which does exist may never be uncovered. He supports this general background picture by reference to cases decided in the area of discrimination on the ground of race such as and such as were reviewed in King v Great Britain China Centre [1991] IRLR 513 (see, in particular, what is said in relation to earlier authorities in the speech of Neill LJ from paragraphs 33-37).[49]He then makes these particular points against that general background. He says that we should not draw the conclusions of fact, which we are asked to do, because first, two claims were genuine, at least in the sense of producing a decision of a Tribunal in his favour. His arguments draw heavily upon the facts of a claim he brought against Leeds City Council in which it emerged during the course of the evidence that Leeds City Council had failed to appoint either Mr Bruce or, indeed, a woman whom he considered better qualified even than he, to the post of an employment law specialist when they appointed an internal candidate whose expertise was in criminal law and had no proper justification for doing so.[50]Secondly, he notes that Employment Tribunals have, in the main, not awarded costs against him and have, on occasions, rejected applications made by the employer for costs against him. If they were not prepared to say that those proceedings, though they failed, were vexatious, nor should we.[51]Thirdly, he emphasises that the claims were genuine; he had had no job. It is right to say that he qualified as a solicitor in 1997. He did so by passing the eight papers required for the professional stage exam though, if he had had a degree, only six would be required, and thereby obtained a qualification of degree standard. He worked for a while with Wansborough Willy Hargrave as one of three trainees, one of whom (not him) was taken on at the conclusion of that traineeship. Since then he worked briefly for DLA but otherwise, had no employment until he was taken on by the Law Society as a case worker, not as a solicitor in 2001. He has emphasised that his applications were genuine applications for jobs. What he wanted was work. He was not particularly concerned with obtaining compensation; it was a job he was after.[52]He argued before us that the fact that he had succeeded in two claims out of 80 showed that statistically, he was succeeding approximately as much as one might expect. That was the general level of success in disability related claims. In support of that he produced statistics. We have examined those statistics. In our view, although matters of statistics are never necessarily easy to determine, they do not support the thesis. For instance, R391 demonstrates that of those disability discrimination cases which went to a Tribunal, only 6% were successful. That compares with 2.6% in Mr Bruce's case on his calculation. But to concentrate on that would be to ignore the 39% of claims brought which are described as ending with ACAS conciliated settlements, thus indicating a degree of confidence on both sides that a proper resolution of the complaint had been made. When the 6% is looked at, as against the claims which were dismissed at hearing, one compares it with those dismissed as being out of scope, (4%); and then dismissed at hearing for other reasons, 15%. There is a broad correlation there which shows that for every claim taken to a Tribunal, one would succeed for every three or thereabouts which failed (6 out of 25). One can argue that of all the claims made about half have some success, at least in terms of the would-be applicant being content with the result (from that particular year's statistics 455 as against 55%; the figure is more even still in later years).[53]He emphasises that his early claims were brought at a time when clarification of the law of the 1995 Act was proceeding; that he was right not to trust employers, in particular those of whom he had had some experience (such as Kent, Leeds, Addleshaw Booths, the Equal Opportunities Commission and the Department of Trade & Industry) whose legal departments he considered had been disingenuous in their response to him. He maintained that at the outset of each case, one would only have suspicions to proceed on. There would never be hard evidence of discrimination. Conclusions[54]We have considered the material and the submissions made by both sides. We have concluded that in this case, the factual basis upon which we might have a discretion to exercise has, in our view, been made out by the Attorney General. We do so for the reasons principally advanced by Mr Tolley, in particular the numbers of claims, the number withdrawn and the repetition of arguments long after he should have realised they were hopeless. We also, however, take into account the following.[55]We have looked to see how the pattern of litigating began. Of the first 10 cases there were nine separate respondents (two cases were brought against the same respondent). They were issued between 11 August 1995 and 29 August 1995. On the latter date, it looks as though some seven claims were issued. They were issued in different regional offices. All were claims alleging sex discrimination. We make two comments. First, we consider that there was no reasonable basis upon which claims alleging sex discrimination could, in the light of what we know about those cases, be brought. We focus, for instance, upon case number 7, that against Broxtowe Borough Council. Mr Bruce accepted, in answer from Mr Yeboah, that at the time he began the claim, he had no idea whether the person appointed was or was not of his gender. The case simply was rejection of application. "It might be that the successful applicant was of the other gender. Therefore there might be a claim. I do not know unless or until I bring proceedings. If I do that, I may find out and there may be a case." We do not think that is a reasonable basis upon which to institute any claim for sex discrimination despite the very considerable difficulty that there are with such cases and despite the corrosive nature of discrimination and the importance of eliminating it. We note that the third of those cases, number 3, against Hertfordshire County Council, was explicitly withdrawn because Mr Bruce found out that the successful applicant was a man.[56]Next, we observe, that it was unrealistic to expect to litigate those cases in those various different locations across the country at one and the same time. When taxed about that difficulty by Mr Yeboah, Mr Bruce's reply was that he did not think he knew what the outcome would be; he applied for those jobs and the motivation that he had was a search for justice. He might have been satisfied with the response made. We do not consider that an adequate response. It thus seems to us that, at the outset at any rate, Mr Bruce was undoubtedly bringing claims in a manner which would satisfy the statutory definition. They were vexatious in the sense that they would impose, or have, the effects on Respondents to which Attorney General v Barker draws attention.[57]Next, when we looked at Mr Bruce's own Affidavit, we concluded that there was justification in Mr Tolley's charge that Mr Bruce "shot first and asked questions afterwards". Thus, at paragraph 8.4, he says in the last two sentences:
"I do not pursue a claim without having concluded the real issues that could constitute discrimination exist. If I cannot see good grounds to proceed, I withdraw or settle on agreed terms"
. In other words, the grounds come second to the issue of proceedings. At paragraph 9.2 he notes that usually the rejection – that is rejection of an application for a job – is the basis for the claim; and at page 11, in reference to the Loosemores and Sefton Metropolitan Borough Council cases, he says "withdrawal is the correct approach if I decide there is either no or insufficient evidence of discrimination". That, as we have already indicated, presupposes that the claim is issued with there being no evidence of discrimination.[58]We do not consider that suspicions are a proper basis on their own for the issue of proceedings. We do accept that there may be circumstances in which those suspicions can be fuelled properly by the reaction and response of an employer or by other facts which happen to be known. They were, for instance, so fuelled by the fact, in the case of King v Great Britain China Centre where it is apparent that Ms King became aware of the identity of the person who was appointed before proceeding. We do not see that the approach that Mr Bruce has taken is sufficiently scrupulous to decide between those cases in which there is an appropriate ground for instituting proceedings and those when there is not.[59]We are conscious that our views, thus far, have related to the early stage of the litigation history. In his reply to us, Mr Bruce drew our attention to a much later case which related to Cambridge. On 8 March 2001, the would-be employer, that is St John's College, Cambridge, wrote, through the Master (Professor Goddard) to Mr Bruce to thank him very much for his application for a fellowship and college lectureship in law. The letter rejected his application, saying that he had not been short-listed. Suffice it to say that the letters which follow are argued by Mr Bruce to show a rebuff by the employer which was sufficient to justify him in both issuing a questionnaire and Originating Application to a Tribunal. We have to say that we very much doubt the realism of any application by Mr Bruce, from what we know of his background, for a fellowship and college lectureship in law, teaching law to undergraduate students and those engaged in masters degree work (presumably) when he, himself, did not have an undergraduate degree. This is so even though he points out that his qualification through the Law Society was the equivalent; nothing we have seen suggests that he had relevant general experience save in the realm of considering the disability statutes and case law. We thought this case was one brought without any reasonable ground, which was vexatious, and were surprised that Mr Bruce held it up to us as being a proper and justified claim.[60]We accept that he has repeated arguments which have no reasonable prospect of success. We think it is plain that he considers, and genuinely considers, that he is entitled to commence proceedings without that which we would regard as a sufficient reasonable cause. We think that the very fact of having done so on a number of occasions, and having had to withdraw or having had his claim dismissed by Tribunals, should have indicated to him that the time had come to stop. We are therefore satisfied that it has been made out to us that, in the words of s33, he has habitually and persistently instituted vexatious proceedings without any reasonable ground, that is without any reasonable prospect of success, without having any evidence or with having evidence which is so specious that it would not have justified the commencement of proceedings. The fact that he has, on occasions, had a justified case is beside the point in looking at the picture overall, as we do.[61]Nothing that we have said should detract from the acceptance by Mr Tolley that he has no doubt that Mr Bruce is genuine in the views that he has expressed. The complaint is that put forward, those views and had them rejected, he does not, in our view, easily take no for an answer. Accordingly, the basis upon which we may exercise our discretion is made out. The Discretion[62]Should we exercise our discretion to order a Restriction of Proceedings Order? We note that Mr Bruce has, in the years since 2000, issued less in volume of claims than he did before. He points out that in the year 2000 the Attorney General considered issuing proceedings under s33 against him but chose not to. In effect, he asks in submissions, what has changed? Unless something has, we should be mindful of the approach that the Attorney General then took and refrain from exercising our discretion.[63]We must take account, as it seems to us, of the imperative socially to eradicate the scourge of discrimination against those who are disabled. Discrimination can, as Lindsay J, pointed out in Wheen , be vicious. However, we have to balance the difficulties that someone such as Mr Bruce may have in demonstrating that there has been discrimination in an individual case involving an individual employer against the matters to which the Attorney General v Jones would have us pay regard.[64]Any application which is actually made to a Tribunal involves the employer in expense in the expenditure of time and the expenditure of resources. It also causes worry which, if the claim is unjustified, is an unjustified worry. If discrimination is evil, to be accused of it is to be accused of committing evil. We have to take into account the resources of the Tribunals. We have to take account of the fact that if it should become known that claims may be issued on a slender basis, as they have in many of the cases Mr Bruce has issued, then those disabled people who have genuine claims may find them more difficult to pursue successfully before Tribunals. Those Tribunals may inevitably have an element of reserve about such cases which is unjustified. To that extent, the behaviour that he has shown in this case may be said to harm disabled people generally.[65]The issue that we have to look at is his conduct. We consider, in the exercise of our discretion, that provided that he is at liberty in any proper case to bring and pursue claims where there is a proper cause, a restriction of him from bringing other proceedings will be justified. In particular, we have been persuaded to the view that we should grant a Restriction of Proceedings Order by the fact that in his submissions to us, Mr Bruce persists in making and trying to justify many of those points to which the cases relate and which, in so far as they concern principle, Tribunals have unanimously rejected. We cannot be satisfied that, were we to exercise our discretion otherwise, he would refrain from issuing such cases because it appears to us that he has every intention of doing so upon grounds which, as we have indicated, we do not ourselves think sufficient and proper.[66]Accordingly, it is the judgment of this Tribunal that, on the grounds that we have indicated, there should be a Restriction of Proceedings Order of indefinite duration.