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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Attorney General v. D'souza [2004] UKEAT 0139_04_1907 (19 July 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0139_04_1907.html Cite as: [2004] UKEAT 0139_04_1907, [2004] UKEAT 139_4_1907 |
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At the Tribunal | |
On 22 June 2004 | |
Before
THE HONOURABLE MR JUSTICE BEATSON
MR J MALLENDER
MR S M SPRINGER MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Applicant | MR WILLIAM HOSKINS (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS |
For the Respondent | MR D C D'SOUZA (the Respondent in Person) |
SUMMARY
Practice and Procedure
Application by the Attorney-General for a Restriction of Proceedings Order pursuant to section 33 of the Employment Tribunals Act 1996 granted. It is not open to the Employment Appeal Tribunal considering an application under section 33 to revisit the conclusions of the judges in the underlying proceedings upon which the application is based: Attorney-General v Wheen [2000] IRLR 461, affirmed [2001] IRLR 91 followed.
THE HONOURABLE MR JUSTICE BEATSON
The Legal Framework
"(1) If, on an application made by the Attorney General or the Lord Advocate under this section, the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground-
(a) instituted vexatious proceedings, whether 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.
(2) A "restriction of proceedings order" is an order that-
(a) no proceedings shall without the leave of the Appeal Tribunal be instituted in any employment tribunal or before the Appeal Tribunal by the person against whom the order is made,
(b) any proceedings instituted by him in any employment tribunal or before the Appeal Tribunal before the making of the order shall not be continued by him without the leave of the Appeal Tribunal, and
(c) no application (other than one for leave under this section) is to be made by him in any proceedings in any employment tribunal or before the Appeal Tribunal without the leave of the Appeal Tribunal.
(3) A restriction of proceedings order may provide that it is to cease to have effect at the end of a specified period, but otherwise it remains in force indefinitely.
(4) Leave for the institution or continuance of, or for the making of an application in, any proceedings in an employment tribunal or before the Appeal Tribunal by a person who is the subject of a restriction of proceedings order shall not be given unless the Appeal Tribunal is satisfied -
(a) that the proceedings or application are not an abuse of the process of the tribunal in question, and
(b) that there are reasonable grounds for the proceedings or application."
"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"
As to "habitually and persistently", his Lordship stated:
"The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give 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."
That "habitually and persistently" requires some degree of repetition was also stated in Attorney-General v Wheen [2000] IRLR 461 at 462 paragraph 2 (EAT); [2001] IRLR 91, 92 paragraph 10 (CA). In Attorney-General v Barker Lord Bingham, LCJ stated (at p. 765) that the repetition need not be over a long period.
The Background
"In the experience of this court, this is the worst case of unlawful race discrimination that it has ever had to consider. Furthermore, there is no reported case which shows such persistent discrimination against one individual."
and
"[He]…has been the victim of shameful treatment by a local authority"
[1997] IRLR 677, paragraphs 1 and 29.
Case No. 14097/96; EAT/1042/96
"The present originating application contains no particulars whatsoever of the alleged discrimination."
The decision states that the applicant was clearly sufficiently experienced to know that such particulars are necessary and that to issue an application effectively in blank six years after the event is unreasonable and, had it been necessary, the tribunal would have been prepared to find that the application should be struck out.
"…quite unable to find any fairly arguable point of law in criticism of this decision, on which this appeal could proceed. Indeed, we would go further; having looked at this decision carefully and looked at such of the facts as we know, it appears to us that it would have been an extraordinary decision and perhaps appealable, had the decision been the other way."
It is clear from this decision that Mr D'Souza had made submissions based on European law to the Appeal Tribunal.
Case No. 2303224/97; EAT/199/98; EAT 489/98; EAT 893/98; EAT/28/99; EAT/233/99
"The applicant now brings this case on the same grounds except that he says the failure to reinstate him was a matter of sex discrimination."
Case No. 2304856/98; EAT 0395/99
"… go over a great deal of the same territory, although it is said there are some issues, which, as a matter of form at least, are not identically treated in each case. What is significant is that on 2 and 3 July 2001, there was a tribunal hearing described as a preliminary hearing, in which evidence was called and, eventually, submissions were made relating to the 1999, 2000 and 2001 applications".
The preliminary hearing was by a tribunal chaired by Mr Snelson (hereafter, the "Snelson tribunal").
Cases 2302685/99, 2306526/00, 2302456/01, EAT 0023/00, EAT 0466/02
The "Omnibus" Appeal in the EAT
"He now raises this issue because he knows that Chairman Booth and his colleagues are so deeply biased that they would clutch at straw which enabled them to deprive a black applicant of a remedy he is entitled to by law.
I may mention that the use of this tactic demonstrates that Lambeth is confident that it can rely on the notorious anti-black bias of south London tribunals, and was also utilised by Lambeth in the case of Mr Kapadia who was dismissed by them. Mr Kapadia brought a claim under the Disability Discrimination Act but he lost before the ET. On appeal the EAT pointed out that the ET's decision was contrary to the undisputed evidence before the ET and made a finding that, in dismissing Mr Kapadia, Lambeth were guilty of discrimination. Lambeth appealed to the Court of Appeal on the ground that the EAT should have remitted the case to the ET but the Court of Appeal dismissed their appeal. It is unacceptable that Chairman Booth and his associates are willing to play Lambeth's racist game by abusing their power and seeking to reopen an issue which is covered by res judicata. The proper legal course for Lambeth, if it wants to reopen this decided issue, is to apply to the Court of Appeal or petition the house for the entire case to be reheard ab initio since the oral evidence of their witness on the subject of my references was vital to the 1995 tribunal decision."
"We would advise the appellant that given the number, nature and conduct of the appellant's cases to date, all or which arise ultimately out of his dismissal and its consequences in 1990, the Attorney-General can apply for a Restriction of Proceedings Order under section 33 of the Employment Tribunals Act 1996 and may well do so, if he brings further proceedings arising out of essentially the same facts."
The Appeal Tribunal also stated that the making of accusations of racial bias against each of the tribunals was unnecessary and improper and the continuation of those accusations in the appeal process was itself unnecessary and improper and amounted to unreasonable conduct. For that reason the Appeal Tribunal made an order that Mr D'Souza should pay 25% of the respondent's costs of the appeal.
Case 2305185/03; Case 2302297/04
The Applicant's Submissions
The Respondent's Submissions
"If a judge has made a mistake, perhaps a very egregious mistake, as is said of Walton J's judgment here, and a later judgment of the higher court overrules his decision in another case, do considerations of justice require that the party who has suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject matter, reopening that issue?"
Arnold's case concerned a decision on the interpretation of a rent review clause which subsequent cases had shown to be wrong. The House of Lords held that there was no issue of estoppel between the parties preventing the lessees from relitigating the matter and affirmed the decisions of the lower courts refusing the landlord's application to strike out the claim.
Conclusions