HER MAJESTY’S ATTORNEY-GENERAL v MS A P MCCLUSKEY [2009] UKEAT 0118_09_0906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0118_09_0906Case No Appeal No. UKEAT/0118/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HER MAJESTY’S ATTORNEY-GENERALAPPELLANTMS A P MCCLUSKEYRESPONDENT
Before
Mr Justice Burton Mr T Stanworth Ms B SwitzerDate 9 June 2009
[1]APPEARANCES For the Appellant MR PAUL GOTT (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) One Kemble Street London WC2B 4TS For the Respondent (debarred) SUMMARY PRACTICE AND PROCEDURE: Restricted reporting order After 12 unsuccessful applications, numerous review applications, all dismissed, and at least 31 appeals, all dismissed or stayed, and substantial and persistent vexatious correspondence, an indefinite Restriction of Proceedings Order made. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of an application by Her Majesty's Attorney-General pursuant to s33 of the Employment Tribunals Act 1996 to seek to persuade this Tribunal to be satisfied that the Respondent, Anne Patricia McCluskey, has habitually and persistently, and without any reasonable ground, instituted vexatious proceedings, whether in an Employment Tribunal or before this Appeal Tribunal, and if so satisfied to make a Restriction of Proceedings Order against her.[2]The Respondent was employed by the Department of Work and Pensions, the DWP, as a full-time Trade Union Officer based at Southport Job Centre. She received a written warning in respect of her conduct in May 2005, it being asserted that she had bullied a colleague, and she was eventually dismissed by the DWP on 10 August 2006.[3]We shall describe the facts and the background which has taken place in relation to the plethora of unsuccessful and mostly unarguable and hopeless litigation brought by the Respondent since December 2004. There is no dispute before us as to the facts, namely that all 12 applications, which we shall briefly describe, brought by the Respondent before the Employment Tribunal, all the applications for review, which have been persistently made within each of those 12 applications, and all the at least 31 appeals to the Employment Appeal Tribunal in respect of orders made, directions given or orders or directions not made or given in those hearings, and the application for permission to appeal by the Respondent to the Court of Appeal, have been dismissed.[4]When this application was made there was an order made by the Employment Appeal Tribunal in the usual way requiring a Notice of Appearance to be entered. No Notice of Appearance was entered by the Respondent, nor any evidence in response to the very full witness statement served on behalf of the Attorney General by Miss Edwards, notwithstanding orders that a Notice of Appearance and affidavit be put in by the Respondent. An unless order was made by this Tribunal, giving her a last opportunity to put in either such Notice of Appearance or such evidence and she did not do so. Therefore, an order was made debarring her from defending; although she would have had the opportunity to attend if she had wished to, her opportunity to put forward a substantive defence was thus debarred.[5]There has been correspondence with the Employment Appeal Tribunal and copied to the Attorney General since this application was made on 17 February 2009. The first letter came from the Respondent's sister, and she was concerned, and reflected her sister's concern, that there might be a costs consequence from any failure by her sister adequately to deal with the matter, and although no reply was given at that stage, Mr Paul Gott who has appeared today on behalf of the applicant has made it plain that no costs are to be sought against the Respondent.[6]There followed two letters, 19 March and 4 April, sent by the Respondent personally to the Employment Appeal Tribunal. Although her sister had mentioned that she was receiving outpatient treatment from a consultant psychiatrist, there is no mention of that or of ill health in the two letters. Both of these two letters were sent to the Employment Appeal Tribunal before the unless order was made on 28 April.[7]The applicant indicated that she was unsure as to what was required of her under the present set of circumstances. She indicated that a good deal of documentation had been destroyed, and that the facts were clear from the material in support of the claims which had already been provided to the Employment Appeal Tribunal. Those documents have formed the bulk of the documents put before this Appeal Tribunal relating to the 12 applications and the 31 appeals, to which we have referred. She is right to say that they do indeed tell a very clear picture, which we shall describe.[8]She referred to a 44-page statement, which she said was forwarded to both Judge McMullen and Judge Meeran, and, it seems, formed part of her case put before the Court of Appeal. Neither that document nor any attachments (unless, as is most likely the case, they duplicate what we have) in which she sought to justify the various claims, and in particular sought to obtain permission to appeal from the Court of Appeal, have been made available to the Attorney General or hence to this tribunal. All of it would have been dedicated towards explaining the claims that she was then making, which we shall describe, certainly none of them to accepting in any way that any of what she did amounted to being vexatious and, indeed, she asserts in her letter of 19 March that her intention was not vexatious in continuing to lodge applications and appeals in tribunals. She says:
"I was a litigant in person and what I consider to be abuse was ongoing, meriting further tribunals."
[9]She points out that there has been a stay, as indeed there has been, as we shall describe, imposed on the various proceedings. She concludes on 4 April:
"I reiterate that it was not my intention to be vexatious in continuing with the appeals. I have thought that there were laws to protect people from being dismissed after lodging in an Employment Tribunal."
[10]She sent a notice of 4 April to the Registrar saying that she did not intend to be present at the hearing. That notice antedated both the Order of 29 April by way of an unless order for her to serve a Notice of Appearance and evidence and that of 28 May debarring her from doing so. So, it is quite plain that she had, even before those two orders, concluded that she was not going to attend and that the evidence that she wanted before this Appeal Tribunal was that which told the story of her applications and appeals, which in large part had and have been considered. In those circumstances we go ahead with this application, and there is no reason for us not to do so.[11]Those documents to which she referred tell a sorry tale. Of the 12 applications to the Employment Tribunal the first four, claims one, two, three and four, related to detriment which she alleged she had suffered in respect of her trade union activity before her dismissal in August 2006. As we shall describe, all those four claims were dismissed and her union, after initially supporting the first claim, withdrew from continuing to support her cases.[12]Claim number five was a claim in respect of her dismissal, and other claims were appended, including claims against her union, PCSU, which latter were early struck out. Claims six and seven, albeit issued some considerable time after her dismissal, all related to alleged pre-dismissal discrimination; almost all, if not all, had already been subsumed in the earlier claims and, as we have described, those too were dismissed or struck out.[13]Claims eight to eleven which followed were claims, ever more fantastic, against judges and court staff: that is primarily Employment Judges, but including Regional Chairmen and the President of the Employment Tribunals and, as the expansion of the Respondents continued, judges of the Employment Appeal Tribunal: Elias J; the former President, Beatson J, Judge McMullen QC and others.[14]Finally action 12, the last of them, was issued in February 2008. We do not have a copy of that application because, like a number of its predecessors, it was rejected at an early stage and no copy of it was kept by either the Liverpool Employment Tribunal Office at which it was lodged or the Leeds Office to which it was transferred. There is mention in the correspondence of various respondents, including the DWP, against whom the claim had been determined, but a large number of other respondents, at least, we believe, 23 of them, as we shall describe.[15]As we have indicated, within those 12 applications there was a myriad of review applications, each time or almost each time that an order was made or refused by a tribunal, and at least 31 appeals to the Employment Appeal Tribunal. All those applications and appeals were dismissed or struck out. As we have described, there was an ever-accreting and accumulating band of respondents to the applications and the appeals.[16]At page 479 of our bundle there appears the coda to a judgment of Beatson J in the Employment Appeal Tribunal on 22 February 2008, when he dismissed six Notices of Appeal as none of them meriting further consideration. He concluded, at paragraph 41:
"I have considered six notices of appeal. I understand that at present there are before the EAT a total of twenty two notices of appeal by Mrs McCluskey. Sixteen of them have been filed since the six with which I have been concerned. In the light of my consideration of these cases, and the pattern of challenges by seeking reviews and, in one case, a review of a refusal to review, it may be appropriate for the Registrar to consider all these applications. If the sixteen applications which I have not seen are of a similar nature to those which I have seen, consideration should be given to drawing the attention of the Attorney General to all the applications so that she can consider whether it is appropriate for her to make an application under section 33 of the Employment Tribunals Act for a restriction of proceedings order."
[17]Shortly afterwards Judge McMullen QC considered under Rule 3(10) on 27 February 2008 nine further Notices of Appeal and he referred, in paragraph one, to having readMr Justice Beatson's judgment and he concluded, at paragraph 4d, as follows:
"As before, I will take this latest tranche of six fresh Notices of Appeal together. I have said the words utterly hopeless are inadequate and so I must dig deep into my vocabulary to give my opinion on these. They add no new legal grounds to what I previously described as fantastical allegations. They are deliberately vexatious, designed to waste time and settle imaginary scores. The Claimant habitually and without any ground persistently pursues these appeals and applications. She has paid no attention to each succeeding warning she has been given. The scarce resources of the EAT and of the Employment Tribunals cannot legitimately be deployed on this case, holding back the many litigants properly wanting their cases heard. The Claimant has added to her abuse by including allegations against me as corrupt. I considered with the President whether I should handle these Rule 3 applications and his view was that the overriding objective required continuity of judicial case management. This latest unparticularized allegation is an attempt further to stultify and enervate the administration of justice in the EAT by taking out judicial officers who have ruled against the Claimant. I am not corrupt. It fails."
[18]On 17 March 2008 in a fresh Notice of Appeal issued before the Employment Tribunal, notwithstanding those remarks of Judge McMullen, the Respondent, in appeal PA/413/08, having set out the history, from her point of view, of the abusive conduct of various Employment Tribunal Judges in dismissing her various claims, said this:
"The appeals commenced being lodged with the EAT on 26.06.2007 and have not been discharged. The appeals are 0844, 0846, 0878, 0890, 0898, 0890, 1111, 1112, 1500, 1501, 1533, 1555, 1568, 1569, 1589, 1590 and 1628 with other appeals in the pipeline. They are attempting to regress the appeals to prior to the involvement of the abusive actions of Judges McMullen, Meeran and Elias and the subsequent named respondents, to retain jurisdiction of the situation and conceal their own illegal misconduct… The Judiciary are perverting the course of justice and aiding and abetting each other in the act. I request permission to progress my appeal through the jurisdiction of the Courts of Appeal. Some of the Respondents are as follows…"
She then sets out 23 different Respondents and ends, "And their agents or representatives".[19]The 23 respondents to those various appeals include not only her previous employers and the Union but the then President of Employment Tribunals, Judge Meeran; the Regional Chairman in Liverpool, Mr Doyle; Mr Sneath, who is described as the Leeds Regional Chairman; another Chairman, Mr Robinson; various administrative assistants in the Liverpool Tribunal by name; the President of the Employment Appeal Tribunal, Elias P; Judge McMullen; the Registrar of the Employment Appeal Tribunal and the Deputy Registrar; two case managers at the Employment Appeal Tribunal; the Parliamentary Ombudsman's Office; an MP; a firm of solicitors and one of their employed barristers; the local council; an insurance company and the police force.[20]On 23 April 2008 Judge Clark notified that in relation to 11 new appeals lodged by the Respondent they were all dismissed under Rule 3(10). He said:
"I have before me at the paper sift stage 11 new appeals by Mrs McCluskey arising out of letters written to her by the Liverpool ET and orders made by that ET during the period 14 February - 2 March 2008 … The 11 new appeals follow precisely the same pattern identified in the earlier appeals … I am satisfied that in the light of the history of the litigation referred to above, each of these new 11 Notices of Appeal conform with a pattern of procedural abuse by this Appellant which she is unable or unwilling to recognize."
[21]Notwithstanding that, there were then some further appeals, and by order of Judge McMullen on 12 May 2008 25 extant appeals were ordered to be stayed pending a decision by Her Majesty's Attorney General as to whether to proceed under section 33. The last order that I should recite related to the application by the Respondent to the Court of Appeal for permission to appeal, among others, that order. It appears that in that appeal the lengthy statement was put in by the Respondent to which we have referred, but which we have not seen. Having considered the papers Laws LJ on 13 June 2008 said:
"HHJ McMullen QC was plainly right for the reasons he gave. The application is quite hopeless."
[22]Without dignifying the history by reciting the content of the various applications, it is enough for us to recite the fact, as we have done, that all of them were dismissed. It is sometimes the case in these applications under s33 that there has been an enormous plethora of applications, but that some of them have been successful, or, even if unsuccessful, have been close run things. This is not such a case. It is quite plain that all of the applications were dismissed and we do not need to review or revisit all the various findings of the Employment Chairmen (later Employment Judges), and Employment Appeal Tribunal Judges and indeed Lord Justice of Appeal which have been given. It is enough to dip into some of those conclusions.[23]In relation to the first claim, which was the subject matter of a five-day hearing in December 2005 and February 2006 before Chairman Mr Reed and two members, the Tribunal said as follows, at paragraph 12 of its judgment, in which it dismissed unanimously the claim by the Claimant that she was subjected to detriment by her employer for the purpose of preventing or deterring her from taking part in trade union activities:
"12. Notwithstanding these considerations we simply found it impossible to accept Mrs McCluskey's assertions. Where there were factual disputes, the witnesses on behalf of the Department gave straightforward and, in our view, truthful and accurate accounts of what had occurred. Mrs McCluskey's demeanour in the witness box was not such as to inspire the same confidence. She was frequently evasive and confrontational. 13. In relation to the areas where there was no factual dispute and where the only issue was the motivation of employees of the Department, the same considerations applied; those witnesses called by the Department gave a clear and sensible explanation for the steps taken. By way of contrast Mrs McCluskey adopted what was, in most circumstances, a wholly unreasonable interpretation of events."
[24]In claim four, which was another claim in respect of alleged subjecting by her employer of the Respondent to a detriment for the purpose of preventing or deterring her from taking part in trade union activities, the application was again dismissed, after a hearing before Mr Reed and two different tribunal members in two days in March, with judgment in April, 2007. The judgment of the Tribunal read:
"8. The witnesses called for the DWP appeared to give their evidence in a straightforward and truthful manner. Broadly speaking, there was a thread of logic running through the narrative of that evidence. 9. Mrs McCluskey, on the other hand, we found an unimpressive witness. It appeared to us that she was too readily inclined to put a sinister interpretation on events. Furthermore, in significant respects her evidence appeared to be at odds with that given by everyone else who experienced the events in question. In short, where there was a conflict between her evidence and the evidence of the witnesses called on behalf of DWP, our inclination was to accept the latter as more accurately representing reality."
[25]Claim five, to which we have referred, was that which originally contained a large number of allegations against the employer and others, including the Union, all of which other claims were trimmed away by the Tribunal, except for the claim for unfair dismissal. So far as that is concerned, by 6 February 2008, a notice was sent by a Mr Nathan on behalf of the Regional Secretary of Tribunals, subsequently himself to become a respondent in a later claim, as follows:
"Thank you for your letter dated 25 January 2008. Regional Employment Judge Doyle (to whom this letter was referred [Mr Doyle having been what had then been called the Regional Chairman and now become Regional Employment Judge] has instructed me to inform you he is not prepared to reply to deliberately discourteous correspondence. If you wish to apply for a postponement of the Hearing in June 2008, you may do so in writing to the Tribunal giving reasons for the application. Regional Employment Judge Doyle does not consider this letter as such an application. Furthermore, I have been instructed to inform you that such correspondence may amount to evidence of the manner in which you are conducting the proceedings is scandalous, unreasonable or vexatious. If such correspondence continues, Regional Employment Judge Doyle will not hesitate to require you to show cause why your claim should not be struck out on those grounds."
[26]Unfortunately that warning did not deter the Respondent, and at that stage she continued to pursue various of her appeals against the, at that stage, 21 respondents listed in her Notice of Appeal of 11 February 2008, and a further letter was sent on behalf of the Regional Secretary of Tribunals to the Respondent dated 14 February 2008 to say that:
"The judge proposes to order that the claim be struck out on the ground that the manner in which the proceedings are being conducted by the claimant has being scandalous, unreasonable or vexatious. The judge's reasons are despite a warning of 6th February 2008 in respect of a series of discourteous and inappropriate correspondence, the Claimant replied in a similar vein with an allegation of personal corruption."
[27]By a letter dated 15 February 2008 Mr Nathan, on behalf of the Regional Secretary of Tribunals, referred to four further letters and said:
"The allegations made against the judge in this letter are not accepted and are clearly been made as part of your vexatious campaign against the Employment Tribunal, its staff and its judiciary."
[28]By a judgment by Regional Employment Judge Doyle on 6 March 2008 claim five was struck out on the ground that the manner in which the proceedings had been conducted by the Claimant had been scandalous or unreasonable or vexatious. Regional Employment Judge Doyle said:
"1. Over a period of some months, the claimant has bombarded the Tribunal with a series of correspondence which, so far as it is possible to divine from that correspondence, makes ill-considered and groundless applications, while also levelling personal abuse and allegations of corruption against any Employment Judge who then deals with that correspondence. By any measure, the applications are an abuse of the Tribunal process, and the correspondence is inappropriate and deliberately discourteous in the extreme… 7. The claimant has failed to show reason why such an order should not be made. Indeed, the claimant has continued to write to the Tribunal in a manner that amounts to an abuse of process and with little disguise of her apparent contempt for any judge who rules against her. Rather than excuse or redress her earlier conduct of the proceedings, she has compounded it… 11. … the weight of the claimant's abuse of the tribunal process and her scandalous or unreasonable or vexatious conduct of these proceedings leaves a clear impression that the claimant is impervious to any attempts to encourage her to conduct herself appropriately within judicial proceedings. A line must be drawn here."
[29]In claim six, which was the penultimate of the seven claims which at least had the semblance of a claim relating back to her employment, a judgment was given on a Pre-Hearing Review on 9 August 2007 in Liverpool by Chairman Mr Homfray-Davies in which he stated as follows, "During discussion with the claimant I was not able to find a clear thread of argument or any thread that enabled me to understand how she put her case against the employer that did not relate to a pre-determined matter. … I have little doubt the conduct of Mrs McCluskey, in bringing this hopelessly inadequately pleaded claim against her employer, was acting vexatiously. She simply cannot let go of her obsession with the perceived injustice she suffered as a result of the mutual complaints between her and Mr Grundy, which led her to be given a written warning, which ultimately, indirectly, led to her dismissal. The claim against the employer is struck out."[30]Such are examples of the findings in the first six of the claims, which were the only ones in which effectively there was substantive consideration by the Employment Tribunal, as she became ever more frequent in her bombardment of the tribunals with yet more claims which, as we shall describe, started to be made against individual Employment Judges and court staff.[31]As for the content and subject matter of the claims, we have indicated that all were unsuccessful, and there were costs orders made against her in relation to a number of those unsuccessful applications. We have no indication as to whether any of those costs orders were paid. It is quite apparent to us that there were conclusions, and properly founded conclusions, that the content and the subject matter were both abusive and persistently abusive. The content was also repetitious, and she constantly and continually reissued claims which had already been litigated.[32]Such a conduct was not only, in our judgment, therefore, vexatious in the sense of continuously inappropriate and unsuccessful and amounting to re-litigation but it was also oppressive. We have already referred to the large number of Respondents seemingly having no connection certainly with anything that had occurred prior to the termination of her employment about which she wishes to complain. We refer to a letter of 3 December 2007 that was written to her in claim ten on behalf of the Regional Secretary of Tribunals, which says as follows:
"Mr Doyle considers that you may be confusing, deliberately or otherwise, three separate processes, namely: (1) the procedure that applies to the presentation of any new claim; (2) the procedure that applies to a claim that has been accepted and in respect of which any kind of decision, order or judgment has been made; and (3) the judicial complaints procedure. Put simply, it may be an abuse of process to attempt to present new claims (of the kind falling within category (1)) against named members of the Tribunal judiciary on the grounds that you are unhappy with decisions that they have taken in the course of an existing claim (of the kind falling within category (2)) or in relation to a judicial complaint (of the kind falling within category (3)). … Further correspondence of the kind represented by your recent letters will be filed, without acknowledgment or reply. They have absorbed a disproportionate and unnecessary amount of judicial and administrative time and resources. You also risk being required to show cause why your remaining claim should not be struck out because of the way in which you are conducting the proceedings."
[33]That conduct included, for example, as recorded in Judge Clark's Rule 3(10) decision of 23 April 2008 to which we have referred, the issue of 11 appeals to the Employment Appeal Tribunal on one day alone. The oppression which is indicative here is not simply that as against the individuals who are served and whom the Attorney General seeks to protect from such vexation, but in particular in this case relates to the protection of the judiciary and the court staff, who are plainly bound to do a job on behalf of the public.[34]The earliest example of an attack on the judiciary is in claim four in respect of which Mr Reed was the appointed Chairman and had delivered the judgment to which we referred earlier in this judgment. In a lengthy letter dated 2 June 2007 directed to Mr Reed requesting a review, she concluded as follows:
"You put me through eight days of a charade in the tribunal services that was so stressful I can not find the words to describe. No wonder I developed a stress disorder. During this charade my blood count fell, as a result of another lifelong medical condition I have. I felt that both physically and mentally I could no longer go on and I seriously contemplated suicide. … How much do you think a person can endure?"
[35]On 31 October 2007, in relation to one of the appeals brought before the Employment Appeal Tribunal, she wrote a letter to Judge McMullen, to the Deputy Registrar at the Employment Appeal Tribunal Ms Johnson, and to one of the EAT case managers, in which she concluded:
"I suppose Judge McMullen considers that his actions, in the same manner as the Liverpool Tribunal chairman, are sustainably fair that there is no evidence to suggest that he failed to carry out his judicial duty to be impartial, and that he has not unjustifiably exploited my disability and discriminated against me?"
[36]On 9 November 2007 she wrote to the then Regional Chairman Mr Doyle a letter in relation to claim five in which she said:
"You are continuing to abuse your judicial positions and tribunal processes. You have continually obstructed the just disposal of my tribunals, deflected the lodging of tribunals, invited and substituted lesser claims to break links with the previous actions, heard claims out of order and taken unfair advantage of my disability. Is that why Judge McMullen deliberately prolonged the sift decision and gave the opinion he gave? It was an attempt to deflect the victimisation and disability discrimination claim lodged on the 5.11.2007. He further misdirects me when he states that he hopes that I can now prepare for the unfair dismissal hearing. And of course in the pre hearing review of the 9.8.2007 Mr Homfray Davies fell short of throwing out my unfair dismissal claim because it gave Judge McMullen, and yourselves, chance to break the appeals to the EAT if I lodged the further claims on the 5.11.2007 for your attempts to get me to withdraw my claims in the pre hearing reviews. How despicable."
[37]A further letter to Mr Regional Chairman Mr Doyle was sent on 16 February 2008 in which she concluded:
"You may now be looking at avenues to cover your corrupt acts but your attempts, and those of your contemporaries, to cover your tracks only portrays just how corrupt you have been."
[38]In addition to Employment Tribunal judiciary the Respondent started to extend her attacks to the staff at the Employment Appeal Tribunal. She had already accused one of the EAT case managers of "perverting the course of justice" in a letter of 23 October 2007. In a letter to Employment Judge Robinson on 4 December 2007 she included an attack on Judge Meeran, threatens the Employment Tribunals and the EAT Registrar, Ms Donleavy, who "abused their positions" and then:
"TO AID YOU AID THE REGISTRAR PAULINE DUNLEAVY IN WHATEVER SHE IS ATTEMPTING NEXT I HAVE PROVIDED YOU WITH THE SUBSTANCE OF WHAT WILL APPEAR IN THE RE SUBMITTED TRIBUNAL APPLICATION WHICH WAS THE OBJECT OF YOUR CAREFULLY WORDED LETTER OF THE 3.11.2007."
[39]Soon thereafter, such staff and judiciary started to appear in her appeals and on 2 February 2008 there was Appeal PA/0168, with 18 respondents, including the Registrar and the Deputy Registrar and various Case Managers at the EAT, in addition to various Judges and Employment Judges. It was however not simply to be limited to appeals that all these judicial staff and Judges were to be included. We have earlier referred to the fact that, after claim seven, they started to be the subject matter of actual applications in the Employment Tribunal. Of course for anyone to be made a party to court proceedings is, of itself, both disturbing and oppressive for such person: disturbing because no one likes being a defendant in proceedings, and oppressive because it requires expenditure of time and cost to have oneself removed from such proceedings.[40]Claim eight was a claim against Judge Meeran, Judge McMullen and Regional Chairman Doyle. It was accompanied by a letter of 21 November 2007 to Regional Chairman Doyle which indicated:
"I charge the Tribunal Judiciary and the EAT with the obstruction of the just disposal of my tribunal claims … The EAT are playing the same game as the Liverpool Tribunal Services. Attempting to avert liability for their collusive acts with the respondents in my claims."
[41]In claim nine, another application was launched against Employment Judges Reed, Robinson and Homfray-Davies, and Regional Chairman Doyle and Judge Meeran. In claim ten there was a claim in which the Deputy EAT Registrar, Julia Johnson, and one of the Case Managers at the EAT were both personal Respondents. Claim 11 was a personal claim against the Chairman in Leeds, Mr Sneath, who, it seems, was the Chairman who had declined jurisdiction in respect of these earlier claims, nine and ten.[42]Finally came the twelfth claim, which we mentioned earlier, which was lodged at Liverpool and transferred to Leeds. This was sent back to the Respondent, so we do not have a copy of the document, but it is apparent from such documents as have been produced from February 2008 that there was an enormous list of different respondents to the action.[43]In one of the simultaneous appeals, in which 21 respondents are mentioned, the Respondent listed them with the opening following words, "Some of the respondents are as follows". It is quite apparent that the targets of her litigious campaign were getting ever more numerous and ever less connected with any complaint that she may have originally had prior to August 2006.[44]In the most recent of her appeals on 1 March 2008 she commenced the ground of appeal:
"Judges Beatson and McMullen have, in orders made on 22.2.2008 and the 28.2.2008, fragmented and manipulated orders that have a direct impact upon one and other."
[45]At paragraph 5 she repeats her assertions that the judiciary are seeking to avert liability for their deliberate acts and omissions. She continues at paragraph 6:
"Judge Beatson's judgment in the illegal rule 3(10) hearing of the 20.2.2008 … had long been superseded by other events, appeals and tribunals. Judge McMullen could have ruled upon the appeals he labours over in his order dated 28.2.2008 when they were lodged … But given the fact that he was well aware that the respondents had not filed responses to the action until seven months after the tribunal application was lodged, a fact known from the form 1's and ET3 responses, he chose to conceal these facts. AND IN DOING SO KNOWINGLY PERVERTED AND OBSTRUCTED, ALONG WITH HIS CONTEMPORAR[IES], THE COURSE OF JUSTICE."
[46]In the same Notice of Appeal of 1 March 2008 at paragraph 25 she concluded:
"I am asking that the Courts of Appeal attempt, if at all possible, to ensure that such cumulative tiers of judicial abuse is never experienced by an unrepresented member of society again. That the judiciary do not pervert and obstruct the course of justice, which is contrary to the very office they have sworn to uphold."
We have mentioned that Laws LJ, after considering all the papers, dismissed her application for permission to appeal as "quite hopeless".[47]It is in those circumstances that the Attorney-General puts the case before us. Mr Gott has drawn our attention to the authorities which are helpful and clear in their interpretation of s33. The leading authority, HM Attorney General v Barker [2001] FLR 759, was in fact under the parallel s42 of the Supreme Court Act 1981 but the words of Bingham LJ in that case have subsequently been approved and applied to s33 in HM Attorney General v Wheen [2001] IRLR 91 CA and HM Attorney General v Kuttapan EAT/0478/05, a judgment of Rimer J. The words of Bingham LJ in Barker are always relied upon in these applications, at paragraph 19:
"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."[48]As Mr Gott said to us in his submissions, there is a balance to be drawn between the right of access to the court on the one hand and, on the other hand, the protection of the availability of those courts to others, protection of the resources of the courts. For example, in these 31 appeals, never mind the 12 different applications, an enormous amount of resource has been used and expenditure incurred in considering and in due course striking out or dismissing every single one of the numerous applications that have been made. It is important to ensure that the courts are available to all and not taken up by one.[49]There is however another important principle which arises here, in addition to that balancing act, and it is the protection of individuals who are taken up by these proceedings. The origin of s42 applications in the High Court under the Supreme Court Act , upon which s33 is modelled, is to protect defendants from persistent and hopeless applications. It is one thing for a claimant to bring an action and fail and possibly even, particularly in the employment tribunals, to bring further actions against the same respondent, or even against others, and fail, but once that becomes a persistent campaign, a persistent course of conduct, in bringing hopeless applications, ones which have already been litigated, then that does begin to cause an enormous amount of angst and distress on the part of those who are unfairly and unjustly sued.[50]That relates to the individuals who were themselves involved, such as employers or fellow employees in the employment field where the applications are brought by employees. This can spread to others who are not concerned at all and who, as in a case like this, are sucked in as the tentacles of litigious voracity extend even further. It is, as we said earlier in this judgment, never a pleasant matter to be subject to service of proceedings.[51]But, in this case, there is the additional factor of the insidious attack on those who are doing the public's business for them, be they judges who are required to be robust, but even more so staff at the various courts and tribunals who are not employed to be, or expected to be, robust, other than, no doubt, in their courteous dealings every day with the public. They are certainly not expected to be themselves the object and the subject matter of litigious proceedings over and over again, and there must be a risk that the carrying out of their activities on behalf of the public is affected if they are fearful at all times that they can be bombarded by proceedings.[52]This is a case in which exactly that is at risk. There is also the factor that the more often that judges are sued the more difficult it may be to find judges who have not been sued by that litigant, and are then said not to be able to bring independent judgment to bear on the case. In this case neither of my fellow lay members nor I have had any previous connections with any of the 31 appeals which have been brought to this Appeal Tribunal. We are all united in our conclusion that the Respondent here has been vexatious and that an order must be made against her.[53]Sometimes when these applications are brought by the Attorney General the result is some agreement or undertaking by the Respondent not to bring any further claims, so that there is the possibility for compromise or a consent order. Although there has been correspondence here to which we have referred, it is quite apparent that this Respondent does not consider that she has been vexatious and gives no undertaking for the future not to bring any further proceedings even as of today, and since the making of the stay, she has been prevented from doing so.[54]An order under s33 does not, of course, drive anyone from the courts, because they are always permitted to bring proceedings with the permission of the Employment Appeal Tribunal and thus there is that hurdle, that filter, in future, so that if there were a proper and fresh claim against some appropriate defendant, then a party subject to a s33 order can, with permission, bring a claim. What is quite plain is that this conduct, persistently carried on ever since 2005, must come to an end, and it will do, because neither an Employment Tribunal nor the Employment Appeal Tribunal will accept any further claims unless there is permission given by this Appeal Tribunal on paper prior to the issue of those proceedings.[55]We consequently make an order under s33, and in the circumstances of this case we conclude that it is appropriate to make an order which remains in force indefinitely. We have no confidence whatever that the Respondent has learnt anything from the constant warnings she has received, and the only way in which her continued abuse can in our judgment be prevented is by imposing the filter on a permanent basis. There is no application for costs, consequently we make no ruling in that regard on this application.