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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> HM Attorney General v Bruce [2006] UKEAT 0586_05_3101 (31 January 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0586_05_3101.html Cite as: [2006] UKEAT 586_5_3101, [2006] UKEAT 0586_05_3101 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MS B SWITZER
MR S YEBOAH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Transcript of Proceedings
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
Main Appeal
"(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.
"….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."
"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.
"…. 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".
"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".
The Facts
"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".
"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.
"…. 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".
"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.
Conclusions
"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.
The Discretion