IN THE HIGH COURT OF JUSTICE CO/3053/97

(DIVISIONAL COURT)

Royal Courts of Justice

Strand

London WC2

Monday, 30th March 1998

B e f o r e:

LORD JUSTICE MAY

-and-

MR JUSTICE SCOTT BAKER

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HER MAJESTY'S ATTORNEY-GENERAL

-v-

BARRY CORNELIUS VIDLER

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-421 4040/0171-404 1400

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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MR N GARNHAM (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Applicant.

THE RESPONDENT appeared in person.

J U D G M E N T

(As approved by the Court)

(Crown Copyright)

Monday, 30th March 1998.

LORD JUSTICE MAY: Scott Baker LJ will give the court's decision.

MR JUSTICE SCOTT BAKER: There is before the court an application under section 42 of the Supreme Court Act for a civil proceedings Order against Mr Vidler, who the Attorney-General contends is a vexatious litigant.

There are, it seems to me, three issues: (i) has Mr Vidler habitually and persistently and without any reasonable ground instituted civil proceedings or applications; (ii) were those proceedings vexatious; and (iii) in all the circumstances should the court make an Order. Mr Neil Garnham, who has presented this application on behalf of the Attorney-General, has helpfully produced a schedule which sets out in summary form the 22 actions that have been commenced. It appears that there have been two principal targets of Mr Vidler's litigation: (i) his union, UNISON; and (ii) his former employers, the Southwark Borough Council.

It is necessary to say a very brief word about the background to all these proceedings. From March 1977 Mr Vidler was employed by the Southwark Council in the Housing Department, and from 1979 in the Social Services Department, becoming, on 6th November 1993, a Day Services Officer. Unfortunately, he fell foul of his employers and in the autumn of 1993 was the subject of a disciplinary hearing which resulted in him being demoted and given a warning. There followed, in April 1994, a disciplinary offence which resulted in his employment being terminated on 22nd June 1994. It is thereafter that this litigation began.

In August 1994 Mr Vidler brought proceedings in the Industrial Tribunal for unfair dismissal. I shall come to that in due course, as it is Action (F) in the schedule to which I have referred. On 27th June 1994 Mr Vidler applied to become an unemployed member of his union. On 3rd August 1994 the union replied saying that the branch meeting had rejected his application. The branch Chairman wrote:

"... It was considered that your behaviour has not been in keeping with that expected of a UNISON member. ..."

It is necessary to mention that in May 1995 Mr Vidler took proceedings under section 66 of the Trade Union and Labour Relations (Consolidation) Act 1992 against his union. What he was concerned about was his position with the union and whether the union was treating him properly. At page 343 of the bundle there is a letter which illustrates the success that this action brought him because, on 2nd August 1995, UNISON wrote to him saying:

"...

Having checked our membership records and the Rules of the union, it is my view that your membership continues and that accordingly you have not, as a matter of fact, been expelled from the union notwithstanding any advice you may have received to the contrary. ..."

These proceedings in the Industrial Tribunal formed no part of the 22 actions on the schedule. It appears that Mr Vidler may have gone to the Tribunal on this ground on more than one occasion because there appears to have been a measure of blowing hot and cold on the part of the union. This, however, is really all background to the matters of which the Attorney-General complains.

As a result of having his union membership taken away and subsequently reinstated, Mr Vidler commenced a number of actions. They are Actions (A) to (D) in the schedule. In these he claimed damages for the distress that had been caused to him by receipt of the letter sent on 3rd August 1994, to which I have referred. However, on 14th March 1996, all four of these actions were dismissed as disclosing no reasonable cause of action and as an abuse of process. Those Orders were all made on the same day by District Judge Jacey in the Lambeth County Court. According to Mr Vidler, the District Judge told him that he was not in the correct court and that he should have been in the Industrial Tribunal. The fact is the actions failed for the reasons that I have described. Those four decisions were not appealed and, in my judgment, therefore stand. In other words, Mr Vidler cannot go behind the grounds on which these actions were dismissed (see Attorney-General v Jones [1990] 1 WLR 859 at 863, per Lord Donaldson, MR.

In Action (E) Mr Vidler sought damages for time and money spent on pursuing a claim to have sight of all his UNISON branch accounts. On 14th March 1996 that action was struck out as having no reasonable cause of action and as being an abuse of process. That was by the same district judge on the same day and in the same County Court as Actions (A) to (D). That decision too has not been appealed.

The London Borough of Southwark, its members and officers have been defendants in no less than nine actions brought against them by Mr Vidler. The root cause of these actions is plainly the dismissal by the Southwark Council of Mr Vidler from his employment with them in June of 1994. Mr Garnham says that the dismissal has, on examination of this litigation, clearly led to a campaign of harassment against members of the Council and its officers.

Action (F) was the application by Mr Vidler to the Industrial Tribunal claiming unfair dismissal, which I mentioned at the commencement of this judgment. That action was commenced on 19th August 1994 following the termination of his employment two months earlier. There was a three-day hearing in November 1995, and on 29th February 1996 the Tribunal decided that Mr Vidler had been fairly dismissed. He did not appeal.

Section 42 of the Supreme Court Act 1981 is limited to civil proceedings in the High Court or inferior courts. In Attorney v British Broadcasting Corporation [1979] 3 All ER 45 the Court of Appeal held that the Industrial Relations Tribunal was an inferior court for the purposes of the Rules of the Supreme Court, Ord. 52, r.1. I cannot see any reason for construing the words "inferior court" in section 42 in any different matter. In my view, industrial tribunals are covered by this expression.

Mr Garnham accepts that Action (F), standing alone, cannot be catergorised as vexatious. It is, however, he contends, (and I accept this) relevant as part of the history.

Actions (G) and (H) were commenced in October 1995 and were claims for damages against two personnel officers of the Council, alleging that they had threatened and intimidated Mr Vidler. They served defences and applied for the Particulars of Claim to be struck out on the ground that they were scandalous, frivolous and vexatious and disclosed no reasonable cause of action. However, before the applications were heard Mr Vidler withdrew the actions, agreeing to pay each defendant's costs on Scale 1.

Action (I) was a claim by the plaintiff for £1.43 against a Mr Hunter, which, with additional costs and fees, came to £111.63. This claim, in reality, relates to Mr Hunter's share of a Council tax bill, namely £1.43. It is a trivial sum with a modest amount of additional expenses added to it. The details of this claim are to be found in the bundle at page 102. It is not entirely clear what is the underlying basis of the claim. Of more significance is the fact that in the course of it Mr Vidler sought to issue a witness summons against the Chief Executive of the Southwark Council, Mr Coomber. He contends that he knows nothing whatsoever about the claim and that he made an application to set aside the witness summons. The result of that is not clear from the papers. What is clear is that the action itself was dismissed on 28th November 1996, Mr Vidler and the defendant both appearing before the court in person. Whatever the perceived merits of the action, it was, on any view, for a trivial sum. Mr Garnham takes the point that it was quite an unacceptable behaviour and clearly vexatious to issue a witness summons against the Chief Executive of the Southwark Council, and that such an action is indicative of the general approach of Mr Vidler.

Action (J) began on 12th October 1995. In this action Mr Vidler claimed 35p against the Chief Executive of the Southwark Council for negligently failing to advise him that he had overpaid his Council tax. As these facts show, it was another claim for a trivial sum. The defendant, not surprisingly, applied for it to be struck out. Mr Vidler failed to appear and District Judge Zimmels struck the claim out in the Lambeth County Court on 26th January 1996.

In Action (K) which began on 18th October, Mr Vidler sued the Southwark Council in the Lambeth County Court for failing to stop Ms Ould, who was Mr Vidler's Area Manager when he was employed by them, from sexually harassing him. On 2nd October 1996 District Judge Lipton dismissed the claim for want of jurisdiction. That Order was never appealed and, in any event, in my judgment, no appeal would have had any prospect of success.

Action (L) was commenced on 15th January 1996. It was a claim bought by Mr Vidler against a Mrs Vahib, claiming damages for swearing a false affidavit in another action (Action (O)). On 14th May 1996 Action (L) was struck out as disclosing no reasonable cause of action and as being an abuse of process. The nature of the dispute between Mr Vidler and the Vahibs emerges in Action (O).

Next, there is Action (M). That began on 1st February 1996. The defendant was Mr Vidler's former superior at Southwark Council. Mr Vidler took proceedings against him in the County Court for making a false and malicious allegation against him. If proved the claim might amount to slander, but if it did the County Court had no jurisdiction. On 3rd October 1996 the claim was dismissed for want of jurisdiction.

I now turn to Action (O). This action was brought in the County Court by Mr and Mrs Vahib against Mr Vidler, claiming an Order of an injunction to stop him harassing them. The position can be seen in a little more detail in the core bundle at page 13 in the affidavit of Mr Aylett:

"The action was for an injunction to prevent Mr Vidler molesting the Plaintiffs following the sending of threatening letters, persistent ringing of their doorbell, his remaining outside their house and other threatening words and behaviour. On 21 April 1995 ... an injunction was granted to the Plaintiffs restraining Mr Vidler from molesting them or coming within the vicinity of their house. On 28 April 1995 ... Mr Vidler applied to the Court requesting to know what was meant by 'vicinity' and on 26 September 1995 ... he applied for the injunction to be set aside on the grounds that the Plaintiffs' statements were "incorrect. On 30 October 1995 his application was dismissed with costs assessed at £200.00 ..."

Mr Vidler says that he did have a measure of success in obtaining clarity from the court as to what was meant by the words "in the vicinity". The background to all of this was that Mr Vahib was Chairman of the Council's Social Services Committee and Mr Vidler blamed him for loss of his job. The Vahibs obtained the injunction against Mr Vidler ex parte and he was, on the face of it, entitled to dispute the factual basis of the Order. Therefore, viewed in isolation, Mr Vidler's steps in this action might not be regarded as vexatious, but what he did has to be seen, in my judgment, in the context of all the other proceedings.

Action (P) concerns proceedings taken by the Southwark Council and Mr Fraser, the Council's leader, seeking injunctions restraining Mr Vidler from harassing employees of the Council or attending its premises.

On 14th November 1996 Toulson J granted an injunction, but that provoked a response from Mr Vidler. At page 651 the Council was forced to write to Mr Vidler on 12th December 1997 in these terms:

"Despite the injunctive relief that has been obtained against you, it would appear that you may be proposing to breach the terms of the order. It has been brought to our attention that on 12 December, at about 10.45 hours, you telephoned Mrs Lorraine Heron, Personal Assistant to the Chief Executive of the Council, and indicated to her that it is your intention to attend at the Leader's home address in the new year in order to collect items of correspondence from him. ..."

The reply from Mr Vidler appears at page 653, and perhaps gives some insight into his general attitude and approach. After thanking the Council, he goes on:

"I confirm that the information provided to you by the Secretary of the Chief Executive is 100% correct: And what a pleasant officer she is.

I am fully aware of the contents of the two injunctions against myself and in fact I have already spent some time in the cells at Walworth Police Station, in relation to a call to Police from the partner of Mr Jeremy Fraser. I found my loss of liberty to be somewhat upsetting and I hope in the years to come, she nor her children will come to regret my loss of liberty.

As a Council Tax payer I do expect answers to questions I put to any elected member who collects their allowances and indeed feel it not unreasonable to hold all those who benefit from this cash income to be equally responsible.

I trust that the replies I am waiting for from the Leader will follow shortly.

...

ps: In the new year I hope to be calling on those two officers who bullied me to return the bullying. On my terms this time. An eye for an eye a tooth for a tooth.

cc: Mrs Lorraine Heron: Council Leader: Mrs Fraser ?????."

Action (Q) is an action for an injunction against Mr Jeremy Fraser restraining him from denying Mr Vidler access to Council property, in particular the Southwark Town Hall and like premises. This arose out of the events which occurred on 15th November, the day after the injunction was granted against Mr Vidler. He was, on that day, politely asked to leave the Southwark Town Hall and did so. It is accepted that it probably was the position that, at that time, Mr Vidler was unaware of the injunction that had been obtained against him on the previous day. The injunction, however, certainly was served on Mr Vidler before he started Action (O). Mr Garnham makes the point that in Action (Q) he obtained the interlocutory injunction with no mention of the full facts, which had the judge known of them he would have been most unlikely to grant the relief that he did.

On 9th December 1996 District Judge Cox dismissed Action (Q) in the Lambeth County Court and ordered Mr Vidler to pay the Council's costs of £175. It was plain, when all the facts were known, that he had no cause of action.

Action (R) began on 10th February 1997. This was another claim against Mr Fraser arising out of the events of 15th November 1996. Because Mr Vidler was barred from every Council building, he says that he was not able to go about his normal and legitimate business. He was, he says, unable to go to the Dulwich library which he ordinarily did by going on foot. He stated that he had instead to go to the library at Wandsworth on 16th November and the bus fare for the return journey was £1.80. In this action he claimed that sum of money which, together with the court fees, came to £11.80. Mr Vidler failed to appear at the hearing on 29th May 1997 when his action was struck out.

Actions (S) to (V) all concerned, once again, Mr Vidler's Trade Union. Action (S) was begun on 14th April 1997 and was an action in the Lambeth County Court by Mr Vidler against Mrs Fielding. She had acted as auditor of the UNISON Central Branch account. Mrs Fielding applied to have the application struck out as disclosing no cause of action.

On 24th September 1997 District Judge Cox in the Lambeth County Court adjourned the application generally with liberty to restore pending the Treasury Solicitor's application to have Mr Vidler declared a vexatious litigant. The gist of the claim was that Mrs Fielding had wrongly agreed to a payment of £154.50p to a Mr Phair without seeing any supporting documentation for it. Mr Vidler was not a representative of the union and the judge expressed considerable doubt as to whether he had any locus to bring such a claim.

Action (T) was based on the tort of intimidation. This action was started on 13th June 1997 against the Lambeth Council. This claim was for £99 million. The details of the claim appear at page 333 of the bundle. It is unnecessary to go into those details. This too came before District Judge Cox on 24th September 1997. Again, he adjourned this application pending the Treasury Solicitor's application to have Mr Vidler declared a vexatious litigant.

On 21st December 1997 Mr Vidler issued two summonses to have the case heard and for judgment against the defendant. No Order was made on these on 24th February 1998.

Action (U) was an originating summons issued by Mr Vidler against the Southwark General Branch of UNISON, seeking various documents. It was issued on 9th December 1997 and, 30th December, the defendant applied to strike it out on the grounds that it was frivolous and vexatious. It was, indeed, struck out by Master Hodgson on 11th March 1998.

Action (V) was a claim in the Industrial Tribunal commenced on 29th October 1997, again relating to Mr Vidler's expulsion from the union. UNISON has admitted the expulsion, but claimed that it was lawful because Mr Vidler no longer complied with the requirements for membership, as he had not been employed in the appropriate employment for a period of over two years. The proceedings have been adjourned pending the outcome of this application.

In order to succeed in this application to the Tribunal, Mr Vidler will have to show that he was an unemployed member of the union. A document to which our attention has been drawn, at page 587 in the bundle, throws considerable doubt on whether he will be able to discharge that burden. He said on 21st January in response to a letter from UNISON, speaking of a meeting:

"...

My best time would be any afternoon in March this year, to enable to booked leave from work. ..."

The wording is somewhat unclear but the plain implication is that he has work.

So much for the various actions and applications, to which I have referred in summary form. In considering whether legal proceedings or applications brought by a litigation are vexatious, the court should concentrate on the proceedings or applications brought, rather than on any underlying right which the bringer seeks to assert. Furthermore, the court has to look at the whole history and not simply at whether an individual pleading discloses a cause of action. What matters is the number of applications or proceedings brought, their general character and the result (see In re Chaffers [1897] 45 WR 365 at 366 per Wright J).

Mr Garnham relies, essentially, on four matters. First, he says that there are here repeated hopeless actions against two bodies; that when one looks at them one can see that there is an attempt to hound and punish defendants; and that they are not, in reality, genuine claims. Secondly, he says that Mr Vidler has gone against those who have been involved in one way or another against him. Thirdly, he views court proceedings as a weapon in a greater war. Fourthly, he points to the character of some of the claims as being for either very small sums of money or very large sums of money. He says that of 20 actions 10 have been struck out, seven of those for an abuse of process.

It is plain, in my judgment, that these cases involve a campaign of fruitless litigation against Mr Vidler's former employers and union. I have no hesitation in answering the three questions that I have set out as the issues at the commencement of this judgment in the affirmative: (i) has Mr Vidler habitually and persistently and without any reasonable ground instituted civil proceedings or application: "Yes"; (ii) were those proceedings vexatious: "Yes"; (iii) in all the circumstances should the court make an Order: "Yes".

For my part, I have no doubt that Mr Vidler ought to be declared a vexatious litigant (for his own good as well as for that of other parties) and a civil proceedings Order should be made. It is right that I should mention, lest there be any doubt about it, that in the unlikely event that Mr Vidler has a meritorious claim against any party (it seems to me most unlikely that he will have one against his employers or the union or anybody connected with them), then he is entitled to apply to a High Court judge for leave to commence proceedings. I am not encouraging him to do so, but he has that escape route to avoid any possible injustice.

LORD JUSTICE MAY: I agree.

The effect of that is that there will be a civil proceedings Order against Mr Vidler under section 42 of the Supreme Court Act 1981. Mr Vidler, I will just explain the effect of that in a moment. Mr Garnham, is there any other matter that we ought to deal with?

MR GARNHAM: No, my Lord, there is no other application.

LORD JUSTICE MAY: Mr Vidler, you have heard what my Lord has said. The effect of the Order is that you may not institute proceedings in any court nor may you continue any proceedings that are presently on foot without leave of the High Court. It does not absolutely forbid you from doing so, but you cannot do so unless you get leave of the High Court. As my Lord has said, you are not encouraged by this court, at any rate, to do so, but that is the position. The provision of section 42(3), which I will just read to you, is as follows:

"Leave for the institution or continuance of, or for the making of an application in, any Civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) [that is you] shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application."

Those are the circumstances in which you might persuade someone to let you take or continue some proceedings.

THE RESPONDENT: Thank you, my Lord.

LORD JUSTICE MAY: Without that, you cannot.