Civil Restraint Orders in Other Courts and Tribunals

AuthorDavid Giles/Maurice Rifat

Chapter 9


9.1 As shown in the previous chapters, the civil restraint order regime implemented by rule 3.11 of the Civil Procedure Rules puts on a statutory basis the powers of the court formerly exercised under the inherent jurisdiction to prevent and protect itself from abuse of its processes. Furthermore, it codifies the procedure for litigants subject to a civil restraint order, to obtain the court’s permission to bring claims and applications.

9.2 One of the main questions arising in this chapter is how the civil restraint order jurisdiction impacts on claims and applications made in tribunals. Furthermore are there any similar orders available in the family and criminal courts?

9.3 As to the first question, there are two aspects. First, does the county court or High Court have jurisdiction to make a civil restraint order under the Civil Procedure Rules civil restraint order regime restraining proceedings from being brought in a tribunal? Secondly, can the county court or High Court take wholly unmeritorious claims and applications brought in the tribunal into account when deciding whether to make a civil restraint order under the Civil Procedure Rules?

9.4 In the context of vexatious litigation the tribunal is just as, if not more, vulnerable to the capricious applications of such litigants. Most tribunals have the power to strike out a claim or response and award costs against any litigant who has brought a claim vexatiously, improperly or unreasonably.

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9.5 For example, rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 20131provides that a chairman or the Tribunal may make a judgment or order striking out or amending all or any part of a claim or response on the grounds that it is scandalous or vexations or has no reasonable prospect of success or striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the party has been scandalous, unreasonable or vexatious. Rule 37(2) provides that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

9.6 Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 empowers the Tribunal to make a costs or preparation time order against a party if it is appropriate to do so, where the party or his representative has either in bringing the proceedings or conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably, or where any claim or response had no reasonable prospect of success.

9.7 Rule 78 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 deals with the amount of such costs or expenses orders and begins by stating that the sum to be paid may be specified by the Tribunal but, if so, the sum shall not exceed £20,000. It goes on to say that the parties may agree on the sum to be paid or the Tribunal may direct that the amount of costs to be paid shall be determined by way of detailed assessment in the county court or by an Employment Judge in accordance with the Civil Procedure Rules. In the latter two cases, the amount paid may exceed £20,000.

9.8 The Court of Appeal in the case of Dean & Dean (A Firm) and Others v Sofia Dionissiou-Moussaoui2heard an appeal against the dismissal by the Employment Appeal Tribunal of an appeal against the dismissal by the Employment Tribunal of an application for costs pursuant to rule 40 (the

1 SI 2013/1237.

2 Dean & Dean (A Firm) and Others v Sofia Dionissiou-Moussaoui [2011] EWCA Civ

predecessor to rule 76). Dr Mireskandari (a partner in the firm of Dean & Dean) had, until they were struck out by the Employment Tribunal on jurisdictional grounds, faced claims of sexual harassment. Dr Mireskandari argued that the claimant’s claims struck out on jurisdictional bases constituted unreasonable conduct and on the grounds that the claims were misconceived. Accordingly, the Tribunal had to consider whether it should make an order for costs against the claimant but it declined to do so. The Tribunal decided that since the sexual harassment claims were not determined on their merits but rather dismissed on jurisdictional grounds, they were not able to decide whether the claims were false or for that reason misconceived, frivolous or vexatious, and consequently it would be wrong to make a costs and expenses order against the claimant.

9.9 The appeal to the Court of Appeal was on the ground that the Tribunal had failed to take into account all relevant circumstances, wrongly exercised its discretion and reached a perverse decision. The Court of Appeal upheld the decision of the Tribunal. The reasoning of the Court of Appeal was succinct. There was no error of principle because the Tribunal had expressly referred to the relevant rule and the nature of the discretion to be exercised. Given the lengthy and detailed argument before it, the Tribunal could hardly have failed to have had regard to the context, both factual and legal, in which it was being asked to exercise that discretion, and the fact that the claims of sexual harassment were not being decided on their merits and that other claims of victimisation against Dr Mireskandari were to continue were highly relevant matters to take into account in the exercise of the discretion.

9.10 The case serves as a salutary warning for litigants, disappointed with the decision of the Employment Tribunal where in the exercise of its discretion the Tribunal has refused to make a costs of expenses order against a party, to be cautious about appealing the decision. As the Court of Appeal said:3

this is a case of three rounds of legal argument about costs in the ET. Even more costs have been run up on the sort of appeal that is doomed to fail, unless it is shown that the discretion appealed was flawed by error or legal principle, or by failure to give proper consideration to all the relevant circumstances, or was obviously wrong.

3 Dean & Dean (A Firm) and Others v Sofia Dionissiou-Moussaoui [2011] EWCA Civ
1332 at [22].

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9.11 In Dean & Dean, the Court of Appeal referred to the decision of the Court of Appeal in Barnsley Metropolitan Borough Council v Yerrakalva.4

In that case, Miss Yerrakalva, the claimant, had presented claims against Barnsley Metropolitan Borough Council for sex, race and disability discrimination which she had withdrawn before the Tribunal had determined the claims on their merits but after the commencement of a pre-hearing review.

9.12 The Tribunal decided that the claimant had not been truthful to it during the pre-hearing review about the state of her health, her personal injuries claims and her financial means, and it made a costs order against her pursuant to rule 40. Her claims were, however, never determined, but that alone did not preclude the Tribunal from declining to exercise the discretion to make a costs and expenses order against her. The Tribunal decided that her untruthfulness was unreasonable conduct within rule 40 and that unreasonable conduct had caused Barnsley Metropolitan Borough Council to reasonably incur costs in responding to and refuting or exposing her untruthfulness.

9.13 Interestingly, the case is an example of an appeal against a costs order from the Employment Tribunal to the Employment Appeal Tribunal which was successful, in that the Employment Appeal Tribunal (Underhill J) allowed the claimant’s appeal on the ground that, while the Tribunal correctly decided it had the jurisdiction to make a costs order, it failed to factor into the exercise of its discretion the serious criticisms it made of Barnsley Metropolitan Borough Council’s own litigation conduct and the effect that conduct had on the costs it incurred and claimed from the claimant. Thus, on appeal to the Employment Appeal Tribunal, Mr Justice Underhill allowed the appeal and set aside the costs order.

9.14 However, on Barnsley Metropolitan Borough Council’s appeal from Mr Justice Underhill’s decision, the Court of Appeal allowed the appeal in part, and in so doing said that the vital consideration in the exercise of the costs jurisdiction of the Employment Tribunal under rule 40 was to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct in bringing the claim and conducting the case, and to identify that conduct and what effects the identified unreasonable conduct had. While it is not necessary for the

4 Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255.

Tribunal to determine a precise causal link, causation was relevant but not to an overly analytical degree.


9.15 In proceedings before the Property Chamber of the First-tier Tribunal, the Chamber has the power pursuant to rule 9(3) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 20135to strike out the whole or part of proceedings or case if the Tribunal considers that the proceedings or case (or part of them), or the manner in which they are being conducted to be frivolous or vexatious or otherwise an abuse of process of the tribunal. Paragraph 10 of Schedule 12 to the...

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