The mechanisms restraining vexatious litigation in the tribunal system, each a permission filter rather than a bar. Attorney General v Barker; Nursing and Midwifery Council v Harrold.
Procedure; vexatious litigants; Lord Bingham CJ defined the hallmarks of vexatious proceedings: little or no basis in law, the effect of subjecting the defendant to inconvenience, harassment and expense out of all proportion to any likely gain, and an abuse of the process of the court. The hallmark 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'.
Procedure; civil proceedings order; an ET claim brought without the permission required under a CPO is a nullity and of no effect. The reference in S.42(3) SCA 1981 to 'leave for the continuance of any civil proceedings' is limited to proceedings instituted before the making of the CPO, it does not permit retrospective validation of proceedings commenced in breach.
High Court confirmed that the jurisdiction to grant a Civil Restraint Order (CRO) extends to employment tribunal proceedings. A CRO made in the High Court may prohibit the making of further applications in the employment tribunal where the respondent's conduct of those proceedings has been wholly without merit.
Procedure; civil restraint order; the High Court has inherent jurisdiction to make a civil restraint order extending to employment tribunal proceedings. The CPR does not apply to tribunals (a tribunal is not a 'court' for the purposes of the Civil Procedure Act 1997), but this means CPR provisions are not inconsistent with the exercise of the inherent jurisdiction in relation to tribunal proceedings.
Procedure; civil restraint orders; the High Court's inherent jurisdiction reaches the employment tribunal. Elisabeth Laing J made a general civil restraint order against a former nurse who had brought fifteen claims against her former employer and the NMC, most in the tribunal and many totally without merit, repeatedly re-litigating issues already decided against her [132], [136]. The order, for the maximum two years, restrains her from bringing claims against either claimant in the county court, the tribunal or the High Court without permission, and takes in the two tribunal claims then stayed; her pending appeal from the NMC's decision was excluded [138]. Hamblen J had earlier held that the court has power to restrain tribunal proceedings ([2015] EWHC 2254 (QB)) [2]. Tribunals were invited to record whether a weak claim is totally without merit, so that a later application of this kind has the specialist tribunal's view [139].
Malicious prosecution of civil proceedings. The tort of malicious prosecution extends to the malicious institution of civil proceedings, so a claimant who proves malice and absence of reasonable and probable cause may recover as damages the loss the proceedings caused, including the excess of actual legal expenditure over any costs recovered. The exception to the rule that litigation costs are recoverable only as costs rests on the proceedings themselves being brought entirely without justification.
Procedure; civil restraint order; a two-year GCRO was granted against a former employee who had brought 10 unsuccessful ET claims and stated in open court that he would not stop. The court applied the three-stage test from Nowak v NMC: (1) persistent claims totally without merit, (2) objective risk of further abusive claims if unrestrained, (3) order just and proportionate. The court noted it would be desirable for ETs expressly to certify weak claims as 'totally without merit' to lay down a marker.
High Court applied the three-stage Nowak test in granting a two-year General Civil Restraint Order (GCRO) against an employee who had persistently brought wholly unmeritorious applications. Confirmed that the vexatious litigant jurisdiction under the Senior Courts Act 1981 extends to employment tribunal proceedings.
Court of Appeal confirmed that a claim presented without leave of court after a civil proceedings order (CPO) is a nullity and cannot be retrospectively validated by the grant of permission after the event. The jurisdictional bar is absolute; the employment tribunal has no power to cure the nullity.
Procedure; civil proceedings order; the Court of Appeal confirmed that a claim brought in breach of a CPO under S.42 SCA 1981 is a nullity, not merely susceptible to being struck out but void ab initio. Retrospective permission cannot cure proceedings commenced without the required leave. The nullity principle applies equally to employment tribunal claims.
Restricted proceedings order granted against a serial claimant who had brought over 50 employment tribunal claims, none of which had succeeded. The court confirmed that an RPO does not prevent the subject from acting as a lay representative for a third party in unrelated proceedings.
Procedure; vexatious litigants; the EAT granted a restriction of proceedings order under S.33 ETA 1996 against a litigant who had brought over 50 ET claims since 2017, none succeeding. The order requires EAT permission before instituting or continuing any proceedings. The EAT declined to restrict the respondent from acting as a representative, S.33 only covers proceedings instituted by the named person, unlike S.42 SCA 1981 which extends to proceedings 'by him or another'.