Attorney General v Bentley (Practice and Procedure : Restriction of proceedings order) [2012] UKEAT 0556_11_0305

EAT
Attorney General v Bentley (Practice and Procedure : Restriction of proceedings order)
[2012] UKEAT 0556_11_0305 · 2012-05-03
[1]On 10 August 2011 the Solicitor General authorised the making of an application by the Attorney General for a restriction of proceedings order pursuant to section 33 of the Employment Tribunals Act 1996 (ETA) against Anthony Bentley. On 20 October 2011 that application was made seeking an order in the following terms:(1) No proceedings shall, without the permission of the Employment Appeal Tribunal, be instituted in any Employment Tribunal or before the Employment Appeal Tribunal by Mr Anthony Bentley, whether by himself or through another.(2) Any proceedings instituted by Mr Anthony Bentley in any Employment Tribunal or before the Employment Appeal Tribunal before the making of this order shall not be continued by him without the permission of the Employment Appeal Tribunal.(3) No application other than an application for permission pursuant to section 33 of the ETA is to be made by Mr Anthony Bentley, whether by himself or through another, in any proceedings in any Employment Tribunal or before the Employment Appeal Tribunal without the permission of the Employment Appeal Tribunal. The application as made did not at the time specify whether the order should remain in force indefinitely or for a specified period.[2]Mr Gott QC, who has appeared this morning, has applied that the order should be of indefinite duration. The application was considered by the then President of the Employment Appeal Tribunal, Underhill J, on 1 November 2011 for the making of directions for the hearing of the application. Within the directions that he made on that occasion he directed that:
“Within 28 days of the seal date of this Order the Respondent must lodge with the Employment Appeal Tribunal and serve on the Applicant a Notice of Appearance accompanied by an affidavit in support and in response to that of Ms Catherine Edwards served by the Applicant.”
[3]The order was sealed on 2 November 2011. There was no response by Mr Bentley as directed, despite initially having the terms of the direction communicated by letter dated 2 November 2011 and a follow‑up letter on 15 December 2011. Accordingly, by an order dated 29 December 2011 issued by the Deputy Registrar in chambers, it was ordered that:
“[…] unless a Notice of Appearance and Affidavit is lodged within 7 days of the seal date of this Order together with an application for an extension of time in which to do so the Respondent will be debarred from taking further part in this Application for a Restriction of Proceedings Order.”
[4]By a further order dated 9 January 2012 the Deputy Registrar, upon a failure of the Respondent to file a notice of appearance and affidavit in accordance with the rules, and upon the failure of the Respondent to reply to the Employment Appeal Tribunal letters dated 2 November, 15 December and the order dated 29 December 2011, it was ordered that the Respondent was debarred from taking further part in this application for a restriction of proceedings order.[5]The application has been made this morning and has been supported by two affidavits, each of them made by Catherine Edwards, who is employed as a caseholder for the Treasury solicitor. Those affidavits are dated, respectively, 19 October 2011 and 12 April 2012. They contain a detailed summary of 31 sets of proceedings embarked upon in Employment Tribunals across the country, including the Bedford, Southampton, London North West, Watford, London Central, Exeter, London South, Sheffield, Bristol and Manchester Employment Tribunals. Mr Bentley, whose given home address is in Bradford, has commenced proceedings in these 31 cases. In a number of those cases he has named more than one respondent, with the result that at least 44 separate respondents have been put, by Mr Bentley, to the trouble of having to respond to his claim, at least in the first instance, by submitting grounds of resistance in the form of ET3s. Certain of the respondents have been the subject of more than one application, including Blue Arrow, IFF Research and Bourne Leisure Ltd.[6]Mr Bentley, in his curriculum vitae, claims to be qualified as a photographer and to have had a career as an entertainer. The Attorney General’s case is that he appears to have embarked upon, and then pursued, a campaign in respect of age discrimination that he has pursued through the medium of commencing proceedings in the Employment Tribunal. The form of this activity appears to be that he either applies for positions with respondents, or informs them that he is available for work, and, when he does not receive any offer of work, or is not appointed to the relevant position, he then issues proceedings for age discrimination and, in some cases, disability discrimination, although there is no indication as to the nature of any disability. Some of his later applications have also included allegations of victimisation. The intensity of his activities in this regard is to be measured from the fact that, within a period of just over two years, between 3 June 2009 and 29 September 2011, he has commenced 29 Employment Tribunal applications. It is of significance that in respect of none of the 31 applications to the Employment Tribunal has he ever attended any scheduled hearing. None of his claims have met with any form of success whatsoever. None of them have gone as far as a full hearing. In respect of 19 of them, they have been dismissed: because they were not actively pursued; because he failed to attend a listed hearing; because he requested that the claims be withdrawn; or because he failed to comply with Tribunal orders.[7]Within the affidavit of Ms Edwards, attached to which are the files in relation to each and every case, she has referred to, and Mr Gott has also referred to, certain of the details of particular cases as particular exemplars of this way of proceeding. There is no need for us to rehearse any of those details; it is sufficient to say that we are familiar with them, having perused the documents to the extent that we have indicated.[8]In respect of 11 of the cases, they were struck out on the basis that his claim had no reasonable prospect of success and/or that they were scandalous or vexatious. Once again, Mr Gott has drawn our attention to certain of the descriptions in the decisions striking them out as involving vexatiousness. He has been made the subject of costs orders in three of those cases; in relation to claim 20, he was the subject of a costs order of £2,000, and in respect of claim 28, he was ordered to pay £500 in costs. Notwithstanding those costs orders, he seems to have continued to issue proceedings in the Employment Tribunals regardless.[9]Unhappily, in some of his responses and written communications with the Employment Tribunals and/or the Employment Appeal Tribunal, his language has, on occasions, been somewhat intemperate. He has sought to appeal to the Employment Appeal Tribunal in respect of five of the cases, but in no case has his appeal been validly commenced, having regard to the requirements of the EAT for certain documentation to be provided, and all of his appeals to the Employment Appeal Tribunal have suffered the fate of no action being taken in respect of them because his appeals were not accepted as valid.[10]Section 33 of the Employment Tribunals Act provides in subsection 1:
“If, on an application by the Attorney General… the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground— (a) instituted vexatious proceedings, whether in an Employment Tribunal or before the Appeal Tribunal, and whether against the same person or against different persons; or (b) made vexatious applications in any proceedings, whether in an Employment Tribunal or before the Appeal Tribunal, the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order.”
[11]In the present case he has had the opportunity of being heard by virtue of the directions given by the President to which we have referred, and it is by his failure to respond, despite being reminded of his requirement to do so, and having been made the subject of an unless order requiring him to do so on pain of his being debarred from further participation, that the circumstances have arisen whereby today we have heard only from the Attorney General.[12]Our attention has been drawn to the way in which proceedings such as this, and parallel proceedings in other jurisdictions, have been dealt with as described in the relevant cases. In H M Attorney General v Barker [2002] SCR 1, which was dealing with a civil proceedings order under section 42 of what is now the Senior Court Act 1981 , Bingham CJ, as he then was, said as follows:
“The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernable basis); that, whatever the intention of the proceedings 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 the purpose or in a way which is significantly different from the ordinary and proper use of the court process […].”
[13]The Attorney General contends, and we accept, that this accurately describes the conduct of Mr Bentley, with his repeated and hopeless claims in respect of age discrimination. We have regard to the number of his claims, combined with the complete lack of any merit, such that none have involved any measure of success. The claims were self‑evidently misconceived and hopeless such that a competent or professional litigator would never have sought to raise them at all. Despite being informed that his claims were vexatious and repeatedly having his claims struck out, he has persisted in his behaviour, and he shows no signs of being able to temper this activity or any ability to recognise that he is acting in an abusive and vexatious manner. In the employment context, the type of behaviour typical of vexatious litigants has been described by Rimer J, as he then was, in the case of H M Attorney General v Roberts [2005] All ER (D) 138. At paragraph 6 of his Judgment he said as follows:
“Most cases of allegedly vexatious litigants, as Lord Bingham there points out [in a reference to Barker ], concern repeated claims or applications in respect of one particular matter by which the litigant has become obsessed, commonly involving the same defendant or defendants. In the employment law field this is a less common feature. Instead, what is commonly seen is the making of repeated applications of a like time to employment tribunals, usually against different respondents but founded on the like basis. In this case, the pattern of Mr Roberts’ repeated applications to employment tribunals is that they allege a discriminatory refusal to give him a job for which he has applied on the alleged ground of his trade union membership and connections. The Attorney General knows of at least 24 applications he has made to employment tribunals and, with some exceptions, the respondents are all different. This feature is, however, no bar to a case being made out under section 33, as of course section 33(1)(a) makes plain.”
[14]It is said by the Attorney General that that description aptly fits the conduct and the patterns of conduct of Mr Bentley: he applies for a job or for work and alleges age and/or disability discrimination on no basis other than that he was not successful in his application. Despite his habit of failing to pursue cases with vigour and failing to attend hearings, with the result of which his applications in many cases have been struck out on that ground, he continues to persist in issuing hopeless and vexatious claims. It is said by the Attorney General, and we accept, that this is an abuse of the Employment Tribunal system and is precisely the conduct at which section 33 is aimed. In comparison with certain other cases in which such an order has been made, the scale and the intensity of Mr Bentley’s conduct is, if anything, in excess of those where a section 33 order has been made. By way of example, in the case of H M Attorney General v Wheen [2000] IRLR 461, 13 claims were brought in a period of 9 months by the subject of that order on the basis of which a section 33 order was made against him. In the case of H M Attorney General v Kuttappan UKEAT/0478/05, 33 claims were brought by the subject of that order, but over a period of 9 years.[15]It is pointed out by the Attorney General that, as arrangements are at present, claims can be commenced in the Employment Tribunal with great ease and at no expense to applicants. The consequence of this is that section 33 entitles the Employment Tribunal system, through the agency of the Employment Appeal Tribunal, to protect itself, its processes and its public reputation from being abused in the manner in which those such as Mr Bentley have chosen to conduct themselves.[16]In our judgment, it is necessary, both to protect the reputation of the system and to protect potential respondents, to make the order sought by the Attorney General pursuant to section 33, which does not absolutely debar him from engaging in further litigation in the Employment Tribunal system but which will require him to obtain the permission of the Employment Appeal Tribunal before doing so. Given that the pattern of his behaviour is not, apparently, linked to a particular dispute with a particular respondent, which it might be thought might be limited to a period during which it would be live and after which it would cease, but has a pattern of repeated applications made in different Employment Tribunal offices against a large number of different respondents, each of them making the same claim of age discrimination, it indicates that his conduct is not such that it will come to a natural end by a specific date. Therefore, we are persuaded by the Attorney General that the order that we make shall be an order that shall remain in force indefinitely. Accordingly, this application succeeds, and we will make the order that is sought in the terms that it is placed before us.