IN THE SUPREME COURT OF JUDICATURE A1/2000/2016

Royal Courts of Justice

Strand

London WC2

Thursday, 7th December 2000

B e f o r e :

LORD JUSTICE NOURSE

(Vice President of the Court of Appeal, Civil Division)

LORD JUSTICE MUMMERY and

LORD JUSTICE KEENE

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HER MAJESTY'S ATTORNEY GENERAL

Applicant/Respondent

-v-

GEOFFREY ARNOLD WHEEN

Respondent/Appellant

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The Appellant Respondent Mr Wheen appeared in person.

Mr R Jay QC (instructed by the Treasury Solicitor) appeared on behalf of the Respondent Applicant.

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(As Approved by the Court)

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1. LORD JUSTICE NOURSE: I will ask Lord Justice Keene to deliver the first judgment.

2. LORD JUSTICE KEENE: This is an appeal against an order known as a restriction of proceedings order made under section 33 of the Employment Tribunals Act 1996 by the Employment Appeal Tribunal on 18th April 2000. On that occasion the Appeal Tribunal was presided over by its president, Mr Justice Lindsay. The effect of such an order is to prevent the person against whom it is made from instituting or continuing any proceedings in an Employment Tribunal or before the Employment Appeal Tribunal without the permission of the latter. It also prevents him from making any application in any such proceedings without such permission, save for an application for permission itself. I understand that this is the first such order which has been made under this statutory provision.

3. Section 33(1) reads as follows:

4. Unless the order provides for it to cease to take effect at the end of a specified period, the order remains in force indefinitely.

5. According to the affidavit of Rodger Lutterodt filed on behalf of the Attorney General, the appellant had commenced some 15 proceedings in all against various respondents in Industrial Tribunals between July 1997 and 3rd April 1998. He had also brought appeals in a number of those cases against orders made by the Industrial Tribunal, five of those appeals being heard and dismissed by the Appeal Tribunal on 10th June 1998. Those five were described on that occasion by the Appeal Tribunal as being an abuse of process. Permission to appeal to this court against those decisions was refused by the Appeal Tribunal on 15th July 1998.

6. Rule 7(4) of the Employment Tribunals Rules of Procedure 1993 provides:

7. If that condition is not met, rule 7(7) empowers the tribunal to strike out the proceedings.

8. Of the 15 originating applications it seems that something like 12 were struck out by the Industrial Tribunal, some under that provision to which I have just referred and others as being frivolous, vexatious or an abuse of process. One was dismissed after a hearing; and it seems that the remaining two were cases where an order under rule 7(4) had been made but the proceedings apparently had not as yet been struck out. In all of them the present appellant, Mr Wheen, had made allegations of unlawful discrimination specifically on grounds of race, sex, disability and marital status.

9. There was, as the Appeal Tribunal observed in its decision of 15th July 1998, a pattern to the cases, in that Mr Wheen had in each of them applied for employment with the named respondent and been refused, after which he had asked for reasons and served on the company or institution in question a questionnaire under the Sex Discrimination Act 1975 or the Race Relations Act 1976 or both. He subsequently commenced the proceedings in question, which were in almost all the cases, as I have indicated, found to be without merit. In this way during a period of less than a year he commenced proceedings against Oxford Brookes University, the University of Northumbria, English Partnerships, the London Boroughs of Greenwich, Enfield and Newham, the Borough of Broxbourne, Railtrack Plc, the Leeds & Holbeck Building Society, Derbyshire Dales District Council, Craven District Council, the Open University and the University of Central England and Birmingham. The evidence is that the appellant is a white male who is not disabled. That, of course, as Mr Wheen has been emphasising to us today, does not rule out the possibility of discrimination.

10. The Attorney General applied for an order under section 33 on 22nd October 1999. When the Appeal Tribunal heard the application it noted that the words "habitually and persistently" in subsection (1) of that section indicated that some degree of repetition over a period of time was a pre-condition to the making of such an order. On the meaning of "vexatious proceedings" it drew guidance from a passage in the judgment of the then Lord Chief Justice, Lord Bingham, in Attorney General v Barker (unreported, 16th February 2000), where it was said that:

11. The Appeal Tribunal also noted that it had a discretion under section 33, which it had to exercise even if it was satisfied that the conditions in section 33(1) had been met. It concluded that Mr Wheen was a person who had habitually and persistently and without any reasonable ground instituted vexatious proceedings, so that the conditions in section 33(1) had been satisfied. It then went on to consider the exercise of its discretion in the light of a number of factors and concluded that it should make the order sought by the Attorney General.

12. Mr Wheen now appeals to this court, with the permission of Lord Justice Latham. The sole ground of appeal which commended itself to that learned judge as being at least arguable was that the tribunal was wrong to make the order in view of the lapse of time since Mr Wheen’s last originating application. However, permission to appeal was not limited to that point and today we have allowed Mr Wheen to argue a number of other matters. Nonetheless, I shall begin with this point, which is one going essentially to the Appeal Tribunal’s exercise of its discretion. Lord Justice Latham noted that the last originating application by Mr Wheen was dated 3rd April 1998, whereas the Attorney General’s application for this order was not made until 22nd October 1999. Consequently, there was an argument that the order was not necessary because Mr Wheen was not likely to be instituting further proceedings.

13. On this aspect of the case Mr Wheen contends before us that there was a long delay before any action was taken by the Attorney General. He emphasises his own inactivity in the period before the Attorney General made his application and argues that there was no basis upon which the Appeal Tribunal could have concluded that a section 33 order was necessary to prevent him from making further applications to Employment Tribunals. He relies on the decision in Barker, to which I have already referred, where the court concluded that an order was unnecessary on the facts of that case. He relies also on Attorney General v Flack (unreported, 29th November 2000) to like effect. It is said by the appellant that it is mere speculation that he was deterred from starting more proceedings in the period between April 1998 and October 1999 by the threat of action from the Attorney General.

14. For the Attorney General, Mr Jay QC contends that the skeleton argument which had been submitted to the Appeal Tribunal by Mr Wheen did not assert anywhere that he had no intention of litigating further in a similar manner as in the past. It is said that in fact the contrary inference could properly be drawn, given the emphatic denials in that skeleton argument of having litigated vexatiously in the past. Mr Jay points out that in the Barker case, where, as I have said, the Divisional Court found that an order was unnecessary, the litigious activity had extended only over a period of four or five months and the court accepted that Mr Barker had been seriously ill at the time, with his mental health having apparently been severely affected. So there was in that case a clear evidential basis on which the court could conclude that things had changed since the various proceedings had been commenced by Mr Barker and that an order in his case was not necessary. That, submits Mr Jay, is very different from the present case, where there is no such evidence. Moreover, the Appeal Tribunal here took the Barker approach expressly into account when considering the exercise of its discretion. It is submitted that it exercised that discretion in a way which is unassailable. It is pointed out by Mr Jay that in fact a notice of appeal was lodged by Mr Wheen in one of the cases relied on by the Attorney General as late as 20th January 1999. Consequently, the time gap was only nine months before the application for the order under section 33 was made. During that time none of the pending appeals to the Employment Appeal Tribunal had been withdrawn. Those are the submissions on behalf of the Attorney General on this point.

15. To my mind there can be no doubt that the Appeal Tribunal recognised that it had a discretion to exercise once the conditions in section 33 had been met. It gave careful consideration to the fact that no new originating applications had been made to institute proceedings by Mr Wheen since April 1998 and it expressly referred to the Barker case. But in its decision the Employment Appeal Tribunal noted that there had been no indication from Mr Wheen that he would not institute proceedings in the future. It considered that it had no assurance as to his future conduct and was not prepared to infer merely from the time gap that an order was unnecessary. It follows that in exercising its discretion the Employment Appeal Tribunal did take account of this argument but concluded that an order should nonetheless be made. Therefore, it did not overlook the point.

16. One therefore has to a ask, was that exercise of discretion clearly wrong on the facts?It is right that no new proceedings as such were commenced by the appellant after 3rd April 1998. He was, however, as I have already pointed out, taking steps in relation to appeals to the Appeal Tribunal until January 1999. Moreover, it is to be observed that the Employment Appeal Tribunal’s decision on the five appeals already referred to was given in a document dated 10th June 1998, which must have been received by Mr Wheen a relatively short time after that. By the time he received that document he would have been aware that the Attorney General was being asked to consider whether or not to take action under section 33. I say that because early on in the Appeal Tribunal’s decision delivered by Mr Justice Morison it was said:

17. There is also a letter in the bundle dated 22nd September 1998 from the Appeal Tribunal to Mr Wheen indicating that a direction had been made that no appeals by him to the Appeal Tribunal should be listed until the Attorney General had made his decision.

18. It is right that that decision seems to have taken a considerable time, since it was over a year later that the application to the Appeal Tribunal for a section 33 order was made. But clearly throughout that time Mr Wheen was well aware that the Attorney General was considering whether or not to apply for a restriction order against him. That, to my mind, was a relevant factor for the Appeal Tribunal to take into account in the exercise of its discretion, along with the absence, as I have indicated, of any evidence from Mr Wheen that he had undergone some change of heart. There may sometimes be situations in which the mere passage of time since the last litigious step was taken may give rise to an inference that the person concerned has had a change of heart or for some other reason may not be likely to commence further proceedings, despite his conduct in the past. But in the circumstances of this case the Appeal Tribunal was in my judgment entitled to conclude that that was not an appropriate inference to be drawn from the passage of time alone.

19. What was there beyond that? There was nothing in the skeleton argument put by Mr Wheen before the Appeal Tribunal to indicate that he was unlikely to continue making vexatious originating applications in the future if he was free to do so. Indeed, as Mr Jay has submitted, the position is rather the reverse. At paragraph 15 of that skeleton Mr Wheen had said:

20. "... I did not act vexatiously in any instance, nor breach s.33 ITA. In fact I acted perfectly legally and properly and in accordance with statutory procedures, case law, legal textbooks and advice and literature supplied to me by the CRE and EOC. It was and is employers, IT chairmen, the EAT and UK Government which are at fault, either through ignorance of, or disregard for, various laws governing my rights, of which these proceedings are the latest example. And not only is delving into the activities and practices of public bodies and servants a legitimate activity protected by the Convention and HRA, in Derbyshire County Council v Times Newspapers (1993) 91 LGR 179 the House of Lords ruled that it was in the highest interest of the public that a council should be subject to scrutiny and criticism. That being so I see no valid reason why anybody, let alone a victim of these bodies, should be acting unlawfully by doing as I’ve done. In fact, I’d say the exact opposite, and that these proceedings have been belatedly resurrected in order to cover up what I’ve discovered and stop me pursuing my claims against the perpetrators."

21. None of that suggests a change of heart on the appellant’s part. It indicates, and indicated to the Appeal Tribunal, a person still convinced of the rightness of his past actions. I am bound to say that Mr Wheen’s statements before us today have to some degree re-enforced that impression. I regard this as a case entirely different on its facts from that of Barker. There was no evidence of any substance to show that an order under section 33 might be unnecessary. For that reason I conclude that the Appeal Tribunal exercised its discretion properly on this aspect of the case.

22. I turn, therefore, to the other points made by the appellant. The main ones can, on analysis, be put under a number of headings. First of all, Mr Wheen contends that the terms of section 33(1) were not met in his case. He argues that he has done nothing wrong. All that he did initially was to apply for jobs for which he was qualified and, when he was refused an interview and found that the reasons for that refusal were in each case unsatisfactory, he used the lawful procedures of sending questionnaires under the relevant Acts. Some employers refused to answer them. In other cases he regarded the answers as unsatisfactory. He therefore complained to Industrial Tribunals. He submits that in all of that he did nothing wrong. Indeed, he contends that all the applications which he made to Industrial Tribunals were arguable and that he has not behaved vexatiously. Moreover, he emphasises that the Attorney General in making this application put in no evidence about the details of the various individual claims.

23. As I have indicated, all this goes to the statutory pre-conditions for an order set out in section 33(1), to which I referred earlier in this judgment. Of course, in so far as Mr Wheen appealed against the rule 7(4) orders to the Appeal Tribunal, in some five of those which reached a determination he lost and permission to appeal further was refused.

24. The authorities on vexatious litigants in civil proceedings must be relevant in a case of this kind under section 33 of the Employment Tribunals Act. In Attorney General v Jones [1990] 1 WLR 859, Lord Donaldson MR said at p.863D:

25. That authority seems to me to be applicable to the situation with which we have to deal. It is not open to someone in Mr Wheen’s position to reopen the merits of the individual cases which have been struck out by tribunals below.

26. It is, of course, the case that some of the Industrial Tribunal decisions relied on by the Attorney General have appeals outstanding in them which have been stayed pending the outcome of these proceedings. But I accept Mr Jay’s submission on this that such proceedings can still be relied on in respect of a section 33 application, even though an appeal is pending. One can rely on what the court or tribunal of first instance has decided - that is to say, that these particular applications were frivolous or vexatious or an abuse, or had no reasonable prospect of success. Such a decision is still a decision of that body, whether it be a court or tribunal, and cannot be disregarded. It still has evidential value and the relevance of such a decision cannot be removed simply by means of lodging a notice of appeal. Nor would it in my judgment be proper for the tribunal or court dealing with a section 33 order to seek to go behind that decision in the individual case. To adopt such a process before a court or tribunal considering an application under section 33 would mean lengthy re-litigation of matters which were properly to be dealt with by the lower body.

27. It is right that Mr Wheen had repeatedly launched proceedings which Industrial Tribunals or Employment Tribunals found had no reasonable prospect of success or were frivolous, vexatious or an abuse of process. That in itself seems to me to be something on which the Attorney General could properly rely and which founded in this present case a proper basis for the order ultimately made here by the Appeal Tribunal.

28. Associated with this argument is Mr Wheen’s next point, which is that in a number of the cases he had been asked to pay a deposit upon the basis that there was seen to be no reasonable chance of success and that he stopped any further action when he was ordered to pay that deposit. He says to us that he did not go on with the action once that stage had been reached. Consequently, he contends that that should not be regarded as something which can form relevant material for a section 33 application.

29. This was an argument which was raised before the Appeal Tribunal when dealing with the Attorney General’s application. It said this at p.7 of its decision:

30. With that passage I agree. It seems to me to present a complete answer to the argument which is advanced on this by the appellant.

31. It is said by Mr Wheen that when dealing with matters of this kind it should be borne in mind that one is not concerned with a normal civil case. He contends that proceedings under section 33 are tantamount to a criminal prosecution. The State is proceeding against an individual and the State of course has virtually unlimited resources. Therefore, he submits, the Appeal Tribunal here did not apply the correct standard of proof. The one which they should have applied was the standard of "beyond reasonable doubt".

32. This is a matter which has been dealt with in a number of previous decisions of this court, in particular, in Attorney General v Hayward (The Times, 20th November 1995). It was held, after a review of the relevant authorities, that the appropriate standard in cases of this kind is the civil standard, but paying a proper regard to the seriousness of the issues at stake. I can see nothing to indicate in this case that the Appeal Tribunal failed to adopt that approach. It was not obliged to apply the criminal standard of proof and so the absence of such a standard being applied did not vitiate the conclusion which it reached. It seems to me that the condition specified by section 33(1), namely that the court must be satisfied that the person has habitually and persistently and without any reasonable ground instituted vexatious proceedings, was in the present case met in all its particulars.

33. Next, the appellant tells us that he did not attend the hearing of the Appeal Tribunal on 18th April 2000 when the Attorney General’s application was dealt with because he took the view that the Appeal Tribunal was biased. The basis of that belief is that in June 1998 the Appeal Tribunal had said (as it is put at least by Mr Wheen) that he had been abusing the process of the tribunals and the Appeal Tribunal. He puts it concisely and colourfully by saying that "his goose was already cooked" there.

34. It is right, as I have already indicated, that on 10th June 1998 the Appeal Tribunal (presided over by Mr Justice Morison), when dealing with Mr Wheen’s five appeals, said that it was satisfied that those appeals were an abuse of the process of the court, and the then president sent the files to the Attorney General. However, that was not a decision that Mr Wheen was a vexatious litigant. That was an issue still to be determined. It had to be decided in the first place by the Attorney General whether it was an appropriate case even for an application for a section 33 order to be made. If he so decided, the Appeal Tribunal would then have to consider the statutory test and the exercise of its discretion on the merits of the case. When the Attorney General’s application eventually came before the Appeal Tribunal, that tribunal was differently constituted from the one which had been dealing with the appeals back in June 1998. The Appeal Tribunal in April 2000 considered the point to which I have just referred and rejected any suggestion that they were influenced by the earlier views of the Appeal Tribunal under Mr Justice Morison. Mr Justice Lindsay commented that he had not read the earlier judgment. For my part, I can see no basis for regarding the Appeal Tribunal which dealt with this matter in April 2000 as having been biased.

35. A point is raised by the appellant, which is somewhat limited in nature, that a number of documents sent to him by the tribunal made it seem as if the April 2000 hearing was an appeal rather than an application. Mr Wheen goes so far as to say that he was misled by this.

36. It is true that certain documents from the Appeal Tribunal did use the word "appeal". But the notice dated 13th January 2000 sent to him about the hearing date told him in clear terms that it was an application which was to be dealt with. So did the covering letter of the same date. I cannot see any potential prejudice to Mr Wheen because of this. There is nothing in this point.

37. Finally, Mr Wheen argues that the section 33 order amounts to a breach of his human rights. He says that there has been a breach of his right to work and there has been a breach of his rights simply because he has been stopped from taking proceedings before Employment Tribunals. Reliance is placed by him on the Human Rights Act 1998 and, of course, the incorporation of the European Convention on Human Rights.

38. One can observe that the right to work is not a right in our domestic law or under the European Convention on Human Rights, but of course there is a right of access to the courts under Article 6 of that Convention - the right to a fair trial. That is not an absolute right. A balance has to be struck between the right of the citizen to use the courts and the rights of others and the courts not to be troubled with wholly unmeritorious claims. The administration of justice has to be taken into account. But in any event the order which has been made against Mr Wheen provides for access to the Employment Tribunal system by him so long as permission is obtained. That is a necessary feature of an order obtained under section 33. That is a familiar feature of many proceedings which take place in our judicial system. It is not something which in my judgment can amount to a breach of Article 6. Access to the courts is not prohibited; it is provided for on certain terms. It is in my judgment wholly unarguable that section 33 of the Employment Tribunals Act conflicts with the European Convention on Human Rights.

39. I conclude, therefore, that none of the points raised by the appellant additional to that which commended itself to Lord Justice Latham has any merit. The statutory requirements for a section 33 order, as set out in the first subsection thereof, were met in this case. The Appeal Tribunal exercised its discretion properly. For my part, I would dismiss this appeal.

40. LORD JUSTICE MUMMERY: I agree.

41. LORD JUSTICE NOURSE: I also agree.

42. I wish to emphasise that the person with whom section 33(1)(a) of the Employment Tribunals Act 1996 is concerned is a person who "has habitually and persistently and without any reasonable ground instituted vexatious proceedings". Plainly, those words are capable of including a person who is not currently instituting vexatious proceedings and, to take the view of the present case most favourable to Mr Wheen, has not done so for 18 months or so before the application under section 33 is made. However, while there is jurisdiction to make an order in such a case, the Appeal Tribunal may, in the exercise of their discretion, decline to do so. That was what happened in Attorney General v Barker, where the Divisional Court was satisfied that an order under the comparable provisions of section 42 of the Supreme Court Act 1981 was unnecessary. In the present case the Appeal Tribunal were not so satisfied.

43. For the reasons given by Lord Justice Keene, I agree that the Tribunal’s decision to make an order against Mr Wheen under section 33 was, on the facts of this case, within their discretion and that it is not one with which this court can interfere. The appeal is dismissed.

Order: appeal dismissed; permission to appeal to the House of Lords refused.