Attorney General v ESTHER MODUKPE DZAGBLEY MENSAH

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."

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.

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.

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.

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.

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.

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."

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."

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...