Vexatious Litigants and Restriction of Proceedings Orders

Specialist employment law solicitor, Hilary Burgess discusses the recent EAT decision of HM Attorney General v Taheri regarding restriction of proceedings orders.

In a recent Employment Appeal Tribunal (“EAT”) decision, the EAT has held that a restriction of proceedings order of indefinite duration was appropriate in the circumstances.  

Section 33 of the Employment Tribunals Act 1996 (“ETA”) permits the Attorney General or Lord Advocate to apply to the EAT for a restriction of proceedings order (“RPO”) in circumstances where a person habitually, persistently and without reasonable grounds institutes vexatious proceedings. An RPO is therefore intended to deal with serial vexatious litigants.

The facts of this case can be summarised as follows:

The Attorney General applied for an RPO of indefinite duration against the Respondent on the basis that he had “habitually and persistently and without any reasonable ground” instituted vexatious proceedings before the Employment Tribunal. It was argued that the Respondent had made over 40 claims in the Employment Tribunal over a ten-year period.

The Applicant’s position, in this case, was that the Respondent had a modus operandi in that he would apply for jobs and if unsuccessful, he would then subsequently bring a claim against the prospective employer based on age, race, and/or disability discrimination. Such claims would, it was argued, have very limited or no basis for his allegations.

The Respondent contended that the application for the RPO was itself vexatious and was an attempt to violate his Article 6 ECHR rights (right to a fair hearing). The Respondent also argued that he had merely been trying to obtain gainful employment and did not, therefore, have a hidden agenda.

In reaching her decision, the Honourable Mrs. Justice Eady (President of the EAT) considered Section 33 of ETA which lays down the conditions for RPO’s. She determined that all three conditions had been met in this case, namely that the Respondent had (1) habitually and persistently, and (2) without any reasonable ground, (3) instituted vexatious proceedings or made vexatious applications, whether in an Employment Tribunal or the EAT, and whether against the same person or different persons.

In reaching the decision that the Respondent had habitually and persistently brought proceedings without any reasonable ground (conditions 1 and 2), the EAT was persuaded in this case by the fact that the Respondent had, by his own admission, brought 41 claims in the Employment Tribunal over a decade. In addition, it was relevant that a number of these claims had either been struck out, withdrawn, or found to be without merit.

In respect of the third and final condition, it was found that the Respondent had instituted vexatious proceedings. It was accepted by the EAT that there was a pattern to the Respondent’s conduct of ET litigation. He would institute proceedings and seek substantial sums in damages for alleged acts of discrimination as a means to obtaining a nuisance value payment from a prospective employer. If the prospective employer refused to engage in settlement discussions, the Respondent would either withdraw his claim and/or make threats of adverse publicity or regulatory referral against solicitors acting for the employers.

The Employment Appeals Tribunal decision

Having determined that all three conditions were met, the EAT went on to consider whether it should exercise its discretion to make the requested RPO.  The EAT determined that it was appropriate in the circumstances and granted an RPO of indefinite duration “for public protection against abusive claims and to ensure that the administration of justice is not impaired by the persistent pursuit of unmeritorious proceedings”.

This is an interesting decision about the factors that the EAT will take into consideration when dealing with serial litigants and section 33 of the ETA. It is worth bearing in mind that an RPO will not totally bar a Respondent from bringing future claims. The effect of the RPO is such that a Respondent, such as Mr. Taheri in this case, will not be given permission to start or continue proceedings or make an application, without the EAT being satisfied that the matter does not amount to an abuse of process and that there are reasonable grounds for making said application/proceedings.

The judgment can be found here.