Appeal No.

PA/0074/00

EMPLOYMENT APPEAL TRIBUNAL

At the Tribunal
On 4 May 2000

Before

HIS HONOUR JUDGE PETER CLARK

MRS R A VICKERS

H M ATTORNEY GENERAL APPELLANT

MS R KING RESPONDENT

Transcript of Proceedings

JUDGMENT

FULL HEARING
Revised

 Copyright 2010
 H M Attorney General v King

APPEARANCES

For the Appellant MR R JAY

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JUDGE CLARK

1 Section 42 Supreme Court Act 1981 provides that the High Court may, on an

application made by the Attorney General, make a civil proceedings Order against a person

whom it is satisfied has habitually and persistently and without reasonable ground instituted

vexatious civil proceedings or made vexatious applications in any civil proceedings. The

procedure governing such applications is contained in CPR schedule 1. Order 94 r. 15(1).

2 A similar provision dealing with vexatious litigants before the Employment Tribunal’s

or the Employment Appeal Tribunal is contained in Section 33 of the Employment Tribunals

Act 1996.

3 We have before us such an application made by the Attorney General in respect of the

Respondent, Mrs Rosalind Iris King.

4 So far as we are aware, and this has been confirmed by Mr Jay QC who appears before

us today on behalf of the Attorney General, this is only the second application made by him

under the Section 33 procedure to be heard by the Employment Appeal Tribunal. We have read

the judgment handed down by Lindsay J, President in the first case of Attorney General –v-

Wheen (EAT 1301/99. 18 April 2000. Unreported).

5 The prerequisites for the making of a restriction of proceedings Order under Section 33

are that:

(1) the application is made by the Attorney General in writing and accompanied by

an affidavit in support

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(2) that the application is served on the Respondent, who must enter an appearance

within 14 days, together with an affidavit in support

(3) that the Respondent has been heard on the application or been given an

opportunity to be heard

(4) the Employment Appeal Tribunal is satisfied that the Respondent has habitually

and persistently and without any reasonable ground, instituted vexatious

proceedings, whether in an Employment Tribunal or before the Employment

Appeal Tribunal, and whether against the same or against different persons, or

made vexatious applications in any proceedings in the Employment Tribunal or

Employment Appeal Tribunal.

6 These proceedings were commenced by the Attorney General by an application in

writing dated 10 January 2000, support by an affidavit sworn on that date by Rodger Lutterodt,

a solicitor employed by the Treasury Solicitors Department.

7 The application is resisted by the Respondent, who has filed an affidavit sworn on 20

April 2000, and a detailed skeleton argument responding to that prepared by Mr Robert Jay.

The Respondent had indicated in correspondence that she does not intend to appear at this

hearing , of which she has had notice, due to the expense involved in travelling to London and

the consequences of an injury to her left leg. We are satisfied that she has had an opportunity to

be heard and we have taken into account her written representations, to which we shall return.

8 The basis of the application, as it appears from the affidavit of Mr Lutterodt and the

Schedule annexed thereto and bundle of documents which he produces, is as follows.

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9 The Respondent was employed by Dorset County Council (DCC) as the manager of a

Day Care Centre for the mentally ill until her dismissal on the ground of redundancy on 1 May

1993.

10 On 26 July 1993 the Respondent presented her first Originating application to the

Employment Tribunal naming DDC as the Respondent. She complained of constructive

dismissal, unfair dismissal, discrimination, and breach of redundancy rules and delays in

hearing internal appeals. The claim was resisted.

11 That complaint was heard by an Employment Tribunal sitting at Southampton between

1 – 6 June 1994. At the end of the hearing the Employment Tribunal orally announced its

decision. The complaint failed. However, it then transpired that the Employment Tribunal was

improperly constituted; both lay members came from the employer’s side of industry. Thus,

instead of promulgating a decision, the Chairman alone held a Pre-Hearing Review at which he

ordered the Respondent to pay a deposit of £50 as a condition of her being permitted to proceed

with her complaint, the Chairman taking the view for the purpose of Rule 7 of the Employment

Tribunals Rules of Procedure that her complaint had no reasonable prospect of success. On 6

October 1994 the Respondent withdrew that complaint. It was then dismissed on withdrawal

by an Order of the Employment Tribunal of that date.

12 Thereafter the Respondent made 12 further Originating Applications to the Employment

Tribunal, naming as Respondent a permutation of DCC, Bournemouth University and her Trade

Union, Unison. Each of those complaints was either withdrawn or struck out. Appeals to the

Employment Appeal Tribunal and applications thereafter for leave to appeal to Court of Appeal

were all dismissed.

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13 Her last appeal to the Employment Appeal Tribunal was heard by a division over which

I presided sitting on 5 October 1998 (EAT 234/98). The appeal was dismissed.

14 I have considered, in the absence of the Respondent today, whether, having sat on that

occasion, I should recuse myself from sitting, albeit with different lay members, on the present

application. I have raised the point with Mr Jay, who does not invite me to do so. In this

connection I have also considered the guidance of Court of Appeal to be found in Locabail

(UK) Ltd –v- Bayfield and associated cases (2000) IRLR 96. In particular, the observation

of the Court (paragraph 25) that previous judicial decisions will not normally give rise to a real

danger of bias.

15 In the particular circumstances of this case I bear in mind the observation contained in

paragraph 73(3) of the Respondent’s skeleton argument that she would later refer to the

Employment Appeal Tribunal’s reasons for dismissing her appeal (234/98) and a complaint of

bias.

16 Having considered what follows, and in particular the grounds on which she sought

leave to appeal to the Court of Appeal, set out at paragraph 75(1) of her skeleton argument, it

seems to me there was no complaint of bias by the division on which I sat, rather error of law.

That application was refused by the Court of Appeal on 18 January 1990.

17 In these circumstances I am satisfied that, even taking into account that this is an

application to have the Respondent declared a vexatious litigant, there are no proper grounds

for my standing down.

18 In answer to this application the Respondent makes the following points.

(1) She submits that her conduct cannot properly be characterised as vexatious. In

our judgment it can. We are satisfied that by persistently launching fresh

proceedings relating back to her original dismissal and its alleged effects,

leading to a complaint of sex discrimination in relation to her pension position,

the Applicant has sought to harass the various respondents to those applications.

(2) It is not open to the Respondent to challenge, as she has sought to do in her

skeleton argument, the individual findings by different Employment Tribunals

that her proceedings were vexatious, see Attorney General –v- Jones (1990) 1

WLR 859.

(3) It is suggested that the Attorney General has only brought this application

because the Respondent had made complaint to the European Court of Human

Rights. That is a misrepresentation of paragraph 13 of Mr Jay’s skeleton

argument. What is there said is that the fact that she made such a complaint may

mean that she will seek to issue further Employment Tribunal proceedings.

(4) The Respondent contends that she has never had her claims heard and

determined. That is a denial of her right to a fair hearing before an impartial

tribunal contrary to Article 6(1) European Convention on Human Rights. That

submission overlooks, it seems to us, those applications which were dismissed

on withdrawal by the Respondent herself. We are not satisfied that she has

shown any breach of Article 6. Further, we are persuaded by Mr Jay, on the

authority of Attorney General –v- Price (1997) COD 250, that to make a

restriction of proceedings order in this case would not of itself constitute a

breach of Article 6(1).

19 Having considered and rejected the arguments put forward by the Respondent we are

quite satisfied, on all the material before us, that we should exercise our discretion in favour of
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granting the Order sought by the Attorney General. There will be an indefinite restriction of

proceedings order made against Mrs King. She may only institute further proceedings before

the Employment Tribunal or Employment Appeal Tribunal with leave of the Employment

Appeal Tribunal.

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