Neutral Citation Number: [2004] EWHC 1441 (Admin) CO/421/2004

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand
London WC2
13th May 2004

B e f o r e :

LORD JUSTICE AULD
MR JUSTICE PITCHERS

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ATTORNEY GENERAL (CLAIMANT)
-v-
ESTHER MODUKPE DZAGBLEY MENSAH (DEFENDANT)

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MR A TOLLEY (instructed by the Treasury Solicitor) appeared on behalf of the CLAIMANT
The DEFENDANT appeared in person

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HTML VERSION OF JUDGMENT
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  1. MR JUSTICE PITCHERS: This is an application by the claimant seeking a civil proceedings order against the defendant pursuant to Section 42 of the Supreme Court Act 1981 that:

    "(1) no civil proceedings shall without the permission of the High Court be instituted by the Defendant in any court; and
    (2) that any civil proceedings instituted by her in any court before the making of any order shall not be continued by her without the permission of the High Court; and
    (3) that no application (other than an application for permission under section 42 of the said Act shall without leave of the High Court be made by the Defendant in any civil proceedings instituted in any court whether by her or another on the ground that she has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings in the High Court and/or made vexatious applications in civil proceedings in the High Court."
  2. An interim order in this case was made on 2nd April of this year. The history of this litigation starts with disciplinary proceedings against the defendant in her capacity as a midwife in 1977. Those proceedings resulted in her being removed from the register of midwives in 1978 and thus losing her job with what was then known as the West Berkshire Health Authority. She made a complaint of unfair dismissal which was unsuccessful in September 1979. She was, however, restored to the register of midwives in 1981.

  3. The defendant has continued to believe that she was the victim of a miscarriage of justice. In 1993 she tried to review the decision of the Employment Tribunal in 1979. That application failed, as did various attempts at appeals and review.

  4. She returned to practice as a midwife although not as an employee. She attempted to obtain a permanent position but failed to do so. She was later removed from the "banking register" which meant that she was no longer able to be engaged as a midwife in any capacity. Those two decisions, her original dismissal and the decision that she was not an employee, are perceived as injustices by this defendant and lie at the heart of most of the litigation which has followed. As to that subsequent litigation, it is enough that I summarise it.

  5. She has engaged in a total of 25 separate proceedings which have, with one exception, all be unsuccessful. Sixteen of those proceedings have involved the Employment Tribunal or its predecessor the Industrial Tribunal. Her one successful application was when she received damages in 1996 against an employee of a National Health Service Trust for rejecting her for employment. An allegation of racial discrimination was dismissed at the same hearing. She has also conducted litigation against the Royal College of Midwives, claiming it discriminated against her in failing to overturn the disciplinary findings in 1977. She has brought five judicial review claims, all seeking to re-litigate issues previously determined by employment tribunals or matters wholly outside the jurisdiction of the courts. She has brought two claims in the Queen's Bench Division attempting to re-litigate unsuccessful employment tribunal proceedings. She has brought one personal injury claim arising out of her employment as a midwife which failed at trial.

  6. It is not simply a matter of her bringing proceedings which have failed completely. She has also, in every case, pursued all avenues available for review or appeal of decisions of the lower courts and, occasionally, attempted to take avenues which do not exist to review or appeal such decisions. In all of those subsequent applications she has, with one small exception, always been unsuccessful. On one occasion the unsuccessful applications following an initial loss reached double figures. She has on ten separate occasions sought to challenge her dismissal from her job in 1978. On nine occasions she has tried to challenge the finding that she was not an employee when she was a bank midwife. Five separate attempts have been made to bring proceedings against the Royal College of Midwives for racial discrimination.

  7. It is against that factual background that I turn to the correct approach in applications of this sort. That approach is well known and can be found in a number of decisions in this court, particularly Attorney General v Barker [2000] 1 FLR 759. In his judgment Lord Bingham said that if the statutory pre-condition had been satisfied:

    " . . . the court has a discretion to make such an order, but it is not obliged to do so. Whether, where the condition is satisfied, the court will exercise its discretion to make an order, will depend on the court's assessment of where the balance of justice lies, taking account on the one hand of a citizen's prima facie right to invoke the jurisdiction of the civil courts and on the other the need to provide members of the public with a measure of protection against abusive and ill-founded claims. It is clear from Section 42(3) that the making of an order operates not as an absolute bar to the bringing of further proceedings but as a filter."

    In dealing with the meaning of the terms, Lord Bingham said at paragraph 19:

    "'Vexatious' is a familiar term in legal parlance. The hallmark of a vexatious proceedings 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 . . .
    (22) From extensive experience of dealing with applications under section 42, the court has become familiar with the hallmark of persistent and habitual litigious activity. 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.
    (23) [Counsel for the Attorney General] acknowledges that the words 'habitually and persistently' connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition."
  8. There is, in my judgment, no question that the defendant in this case has habitually and persistent instituted civil proceedings. The statistics set out above are enough to demonstrate that without further argument. Those same statistics and the almost complete failure of all litigation she has undertaken are also sufficient to demonstrate that her litigation has been vexatious and without reasonable grounds. It is also relevant to consider that of her various employment tribunal claims, six have been dismissed on the express ground that they were frivolous or vexatious. In one of those, in a decision dated 9th November 1999, the tribunal concluded their decision by saying:

    "We would like to state that in our view this originating application is wholly misconceived. Mrs Mensah is wasting the time and resources of the employment tribunal service and the time and resources of the respondents who have to defend these proceedings. We regret that we do not have the power to name Mrs Mensah as a vexatious litigant."
  9. On 5th October 2000 Elias J in dismissing several of her litigations said this:

    "I appreciate that Mrs Mensah feels very aggrieved at the decision of these tribunals, in particular a decision some time ago that found that, as a bank nurse, she was not an employee. Nonetheless, the number of proceedings now being initiated, the fact that at every turn when they are rejected there are further appeals and further applications made, suggest to me that the time has come when it may be appropriate for the Attorney General to consider whether or not an application might be made on the ground that she is a vexatious litigant. There are clearly other applications that have been made of which I am not aware but I am not clear how many and in what circumstances. But I do think this matter ought to be considered by the Attorney General because these applications are taking up the court's time and inevitably the involving of significant costs and time for the parties who are continually being brought back before the court."

    In relation to a later claim in the Administrative Court, Ousely J, in refusing permission on paper, stated that the application was hopeless on the merits and vexatious, and agreed with Elias J that the Attorney General ought to examine whether Mrs Mensah should be considered for vexatious litigant proceedings.

  10. Mrs Mensah, in resisting the application, has submitted two skeleton arguments and a bundle of documents with comments thereon. She seeks, on paper at least, to take a procedural point, arguing that the Attorney General should have taken proceedings under CPR Part 7, not Part 8. This point has been considered by this court in the case of Attorney General v Cameron [2003] EWCA 2144 Admin where Dyson LJ held that Part 8 was the appropriate part for an application under section 42.

  11. As to the substance of the application, Mrs Mensah argues that her various claims have all been well-founded and says in her acknowledgment of service:

    "I do not accept the notion that I have made applications habitually and persistently without reasonable ground in civil courts. On the contrary, the tribunal and courts should be held responsible for creating the situation of multiplicity of litigation by convening and hearing complaints and claims out of jurisdiction. If not an employee refusing to join complaints then those that they had jurisdiction had been dismissed without a merit hearing or struck off on ground of frivolous vexatious abuse of process and collateral attack theoretically. These they had done by deliberate omission, collusion with the respondent's legal advocates to my horror and dismay. The facts speak for themselves. Briefly these are the ways in which they have achieved it."

    She then goes on to list, with particulars, complaints of witness interference, subornation of perjury, misleading the courts, withholding evidence, interfering with conduct and decisions of the courts, intimidation and other various complaints.

  12. She has elaborated those written arguments orally before us. In summary she says that her legislation was not persistent because it was founded on different issues; that it was not vexatious because she is the victim in these matters; and that she has not litigated because, save for the County Court claim, these actions have not proceeded to a full hearing on the merits.

  13. In my judgment, the reality of her submissions are that she seeks to reopen the merits of proceedings in which she has already exhausted her avenues of appeal. This is not a permissible way of opposing an application such as this, as was made clear in the case of Attorney General v Jones [1990] 1 WLR 859. For my part I have no doubt that the statutory pre-conditions to the making of a civil proceedings order are fully made out and subject to the one matter of law to which our attention has been directed, we should exercise our discretion to make the order sought by the Attorney General.

  14. There is one matter of law upon which we are expressly asked to rule. That is to say whether an order under section 42 will apply to proceedings in employment tribunals and the Employment Appeal Tribunal. By the Employment Tribunals Act 1996 section 33, the Employment Appeal Tribunal is given the power to make a Restriction of Proceedings Order preventing the institution of Tribunal proceedings without permission. Such an order does not cover litigation in other courts even if arising out of the same subject matter.

  15. Unless restrained from doing so by authority, I would certainly wish to hold, as a matter of public policy, that an order under section 42 was apt to cover proceedings in employment tribunals. The purpose of proceedings under section 42 was considered in the case of Attorney General v Jones by the Court of Appeal, a decision to which I have already referred. In giving his judgment, Lord Donaldson, Master of the Rolls said this at page 862, letter (h):

    "For my part I consider that section 42 is ambiguous. From this it follows that it is both permissible and necessary to have regard to its purpose -- to the mischief at which it is directed. This is that the compulsive authority of the state vested in the courts and the judiciary shall not be invoked without reasonable cause to the detriment of other citizens and that, where someone takes this course habitually and persistently, that person shall be restrained from continuing to do so, but shall nevertheless be as free as any other citizen to use those processes if he has reasonable cause for so doing. Given that purpose, there is no obvious or indeed any reason why the section should have been intended by Parliament to have regard only to proceedings in the High Court or in an inferior court to the exclusion of proceedings in the Court of Appeal. Mr Christopher Symons appearing for the Attorney General submitted, correctly as I think, that the reference to the High Court and to inferior courts was intended to make it clear that, although the Act of 1981 was primarily concerned with the powers, duties and procedures of the Supreme Court, this section was to extend to proceedings initiated in other courts, such as the county courts, but was not intended to extend to proceedings initiated in those tribunals which were not properly characterised as courts."
  16. The issue, thus, in relation to an employment tribunal is whether it is properly characterised as a court. I shall turn to that issue in a moment. On the general principle this case is far from unique in demonstrating the way in which proceedings in an employment tribunal may be followed by or accompanied by proceedings in the High Court. It would be anomalous if a separate application requiring separate proof but covering exactly the same ground had to be made both in this court and the Employment Appeal Tribunal.

  17. To the extent that this issue has been considered by the courts in relation to employment tribunals, the authority is clear. In Attorney General v Douglas [2001] EWHC Admin 610, this court had to consider this issue. Brooke LJ said this at paragraph 52:

    "So far as proceedings in employment tribunals are concerned, the Employment Appeal Tribunal is empowered by section 33 of the Employment Tribunals Act 1996 to make a Restriction of Proceedings Order preventing the institution of Tribunal proceedings without permission. This procedure is appropriate when the sole litigious activity complained of has been before employment tribunals, but I would accept Mr Jay's submission that the language of section 42 is wide enough to accommodate both court proceedings and proceedings in employment tribunals. These tribunals are to be regarded as "inferior courts" for the purposes of section 42 (see Attorney General v BBC [1981] AC 303 at 339H and 360A; and Peach Grey & Co v Sommers [1995] ICR 549 at 557H and 558A)."
  18. In the latter case, the Divisional Court had to consider whether the employment tribunal was an inferior court for the purposes of contempt of court under the former rules of the Supreme Court Order 52. After hearing full argument, Rose LJ held that such a tribunal satisfied all three tests propounded by the House of Lords in Attorney General v BBC. In the course of his judgment Rose LJ said this at page 557:

    " . . . determination in the present case can be limited initially to the question of whether an industrial tribunal is an inferior court within RSC, Ord, 52, r.1.
    In my judgment it is. I say this for a number of reasons. First, by virtue of sections 128 and 131 of and Schedule 9 to the Employment Protection (Consolation) Act 1978 and regulation 5 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (SI 1993 No. 2687), an industrial tribunal has many of the characteristics to which the authorities refer as being those of a court of law. It is true that it is not a court of record and its monetary awards have to be enforced and taxation of its costs carried out by the county court; that, although in practice it observes the rules of evidence, it is not strictly bound to do so; that there are conciliation proceedings available involving the Advisory Conciliation and Arbitration Service; and that rights of audience that are not limited to lawyers. But it was established by Parliament, it has a legally qualified chairman appointed by the Lord Chancellor, and, like the Employment Appeal Tribunal which is a court of record, other members representing employers and employees drawn from panels compiled by the Secretary of State for Employment. It sits in public to decide cases which affect the rights of subjects and it has power to compel the attendance of witnesses, administer oaths, control the parties' pleadings by striking out and amendment and order discovery; the parties before it can have legal representation; it has rules of procedure relating to the calling and questioning of witnesses and addresses on behalf of the parties; it can award costs; it must give reasons for its decisions which, on a point of law, can be appealed to the Employment Appeal Tribunal and Court of Appeal. In all, it appears to me to exercise judicial functions.
    Secondly, in Attorney General v BBC [1981] AC 303 in the House of Lords three tests are propounded in the speeches. Viscount Dilhorne referred, at page 339H, to a body which discharges judicial rather than administrative functions and forms part of the judicial system of the country rather than the administration of the government. Lord Edmund-Davies said, at page 351F, that the question is 'largely a matter of impression'. Lord Scarman referred at page 360A to a body 'exercising judicial functions [which] can be demonstrated to be part of this judicial system'.
    In my judgment, by each and all of those three tests, an industrial tribunal is a court. It is also to be noted that, in the Court of Appeal in that case, Lord Denning MR in a dissenting judgment (the conclusion, though not the reasoning of which was confirmed in the House of Lords) specifically referred, at page 313G, to industrial tribunals as having 'all the characters of the recognised courts.'
    Thirdly, section 19 of the Contempt of Court Act 1981 defines 'court' as including 'any tribunal or body exercising the judicial power of the state'. In Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, at page 380 Lord Donaldson of Lymington MR, whose reasoning was approved by Lord Bridge and all other members of the House of Lords said:
    ' . . . this definition must be intended to reflect the common law concept of what is a 'court' for the purpose of the common law jurisdiction of the courts in relation to contempt of court.'
    By this yardstick also it seems to me that an industrial tribunal is properly to be regarded as a court, for it exercises the judiciary power of the state.
  19. In accordance with his duty to the court, Mr Tolley for the Attorney General has drawn to our attention dicta in two cases which could conceivably be argued to support the argument that employment tribunals are not covered by section 42. In an unreported case of the Attorney General v Ewing, 21st December 1989, which dealt with the meaning of "proceedings" in section 42, Rose J (as he then was) agreed with the submission of counsel for the Attorney General that the words "whether in the High Court or any inferior court" were "apt to exclude tribunals which might otherwise be thought to be within the ambit of civil proceedings." There was no need for the court in that case to consider the position of an employment tribunal -- which indeed in its modern form did not then exist -- nor did the court purport to do so in the course of argument or judgment.

  20. The second dictum is from the judgment of Rose LJ in the Attorney General v Badibanga [2003] EWCA Admin 394. An attempt has already been made to take those words out of context and use them to support a similar argument to that which I am now considering. That was done by Mr Ewing in Ewing v The Security Service [2003] EWCA Civ 581. Its irrelevance to this issue was firmly stated by Laws LJ in his judgment in that case.

  21. It follows then that as a matter of general principle, and on all the authorities on the matter which I have cited, it is clear that section 42 is apt to cover proceedings in an employment tribunal and the Employment Appeal Tribunal, and I would so hold. Therefore, not only is it right to make the order sought by the Attorney General in this case, but it is also clear that that order will apply to those proceedings as well as to proceedings in the Queens Bench Division and other courts. For those reasons, I would grant the Attorney General the order that he seeks.

  22. LORD JUSTICE AULD: I agree with my Lord, for the reasons he has given, that the court should make a civil proceedings order under section 42 of the 1981 Act against Mrs Mensah. I particularly endorse his conclusion on the authorities he has cited and follow his reasoning on them that employment tribunals and the Employment Appeal Tribunal are "courts" or "inferior courts" for the purpose of section 42.

  23. I take the liberty of underlining, in particular, two important propositions that seem to me to emerge from those authorities. First, the word "court", as used in this or similar statutory contexts, is not a technical term, save by reference to whether the jurisdiction of such a body and the way in which it exercises it are characteristic of a judicial process. So much is to be derived from the observations of their Lordships in the Attorney General v BBC [1981] AC 303, HL, by Rose LJ giving the leading judgment of this court in Peach Grey & Co v Sommers [1995] ICR 549, and more recently by Brooke LJ giving the leading judgment of this court in Attorney General v Douglas [2001] EWHC Admin 610, with particular reference in that case to employment tribunals and, necessarily, to the Employment Appeal Tribunal.

  24. The second important proposition that emerges from the authorities (and for the reasons advanced by Mr Tolley for the Attorney General) is that, as a matter of public policy, the word "court" in such a context should be broadly construed. Otherwise, in a process designed to protect both the efficient and fair administration of justice and hapless potential defendants to vexatious proceedings, it would often only add to the pointless and damaging litigious toll. In many cases it would be necessary for wasteful parallel applications to be made in respect of the employment tribunal and Employment Appeal Tribunal under section 33 of the Employment Tribunals Act 1996, as well as an application under section 42. As Mr Tolley pointed out, there are many cases of this sort that involve an element of vexatious litigation in both jurisdictions, producing repetitious litigation, which section 42, when matters become extreme, is designed to avoid.

  25. Accordingly, there will be an order granted in the form sought by the Attorney General.

  26. Now, Mr Tolley?

  27. PROSECUTION COUNSEL: My Lord, I can arrange for the order to be drawn up. I certainly have on my system a copy.

  28. LORD JUSTICE AULD: That would be helpful. Is there any other consequential matter?

  29. PROSECUTION COUNSEL: Just an order for costs. I am quite happy to put that on the order.

  30. LORD JUSTICE AULD: Very well. Mrs Mensah?

  31. DEFENCE COUNSEL: I believe it is plain to me, it does not stop me from coming to court. If I have good grounds and I apply, I can proceed.

  32. LORD JUSTICE AULD: You have to apply on a case by case basis. Thank you.

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