HM Attorney General v Vaidya
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Mr Justice Goss |
| Judgment Date | 20 July 2017 |
| Neutral Citation | [2017] EWHC 2152 (Admin) |
| Docket Number | Case No. CO/522/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 July 2017 |
[2017] EWHC 2152 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Bean
Mr Justice Goss
Case No. CO/522/2017
Mr Jonathan Lewis (instructed by Government Legal Department) appeared on behalf of the Appellant
The Respondent appeared in person
In this application the Attorney General seeks a civil proceedings order against the respondent, Dr Vaidya, under Section 42 of the Senior Courts Act to prevent him without leave of the court from instituting or making applications in cases in the civil courts and tribunals, in particular the Employment Tribunal and the Employment Appeal Tribunal. The draft order prepared by Mr Lewis, who appears on the Attorney's behalf, seeks also to prevent the respondent from acting as a McKenzie friend for anyone else in the courts or tribunals. The proper wording of such an order would be to prevent him from acting as a representative or McKenzie friend in any court or tribunal.
The Solicitor General Robert Buckland QC MP has given his fiat for the institution of these proceedings.
The Section 42 jurisdiction is now well established. In Attorney General v Barker [2000] 1 FLR 759, Lord Bingham (then Lord Chief Justice) said that the hallmark of a vexatious proceeding is 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.
As Dr Vaidya rightly emphasised — and Mr Lewis did not contend otherwise — the wording of Section 42 (1) requires the court to be satisfied that the respondent has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings etc. The words "habitually", "persistently" and "without any reasonable ground" are cumulative; that is to say, all three must be satisfied before an order can be made.
The other authority to which reference should be made at this stage is Attorney General v Mensah [2004] EWHC 1441 (Admin), in which this court (Lord Justice Auld and Mr Justice Pitchford) held that Section 42 is apt to cover proceedings in an employment tribunal and in the Employment Appeal Tribunal, and that the ET and EAT are courts or inferior courts for the purposes of Section 42.
The history of the many cases in which Dr Vaidya has been involved either on his own behalf or on behalf of others is set out in detail in a witness statement of Sharangit Sidhu of the Government Legal Department on which the Attorney relies. Miss Sidhu's witness statement does not consist of argument. It merely sets out in detail the history of fourteen specific cases in which Dr Vaidya has been a party, followed by four cases in which he has appeared on behalf of others, and makes brief reference to one criminal case which to my mind is irrelevant to the present proceedings.
In the overwhelming majority of these cases Dr Vaidya failed on the merits. On nine occasions an application or appeal brought by him has been described as totally without merit. The judges who have so described his cases have included Lord Justice Lewison, Lady Justice Hallett, Mrs Justice Lang, Mrs Justice McGowan and Mr Justice Burnett (as he then was) who, in a case brought by Dr Vaidya against the General Medical Council (GMC) in 2008, said:
"When the matter came before Mr Justice Cranston he considered that the application was totally without merit. I am bound to say that I take the same view. The history of proceedings involving Dr Vaidya and the GMC paints a really rather unfortunate picture. Dr Vaidya, as it seems to me, makes applications both before the GMC and also in this court with a view to trying to frustrate the disciplinary process which has now been in train for some years. It may be that those who are now advising him might consider explaining the possibility that if there is evidence of multiple unmeritorious applications the court might be moved, either by the GMC or of its own motion, to make a restraint order of some sort which would inhibit Dr Vaidya's ability to issue proceedings."
That was some nine years ago. Since then general civil restraint orders have been made against Dr Vaidya but the story continues and now the Attorney General seeks an order under Section 42 of the 1981 Act.
There is one further point of law. Until the decision of the Court of Appeal (Civil Division) in Michalak v General Medical Council in 2016 it was widely believed, and had often been held at first instance, that an employment tribunal had no jurisdiction to consider a claim of discrimination brought against a regulatory body by a doctor or other practitioner whom the regulatory body was seeking to discipline or against whom the regulatory body was seeking to impose sanctions. If a body such as the General Medical Council makes a decision, for example that a doctor should be struck off or suspended, then there is a statutory appeal to the High Court and the employment tribunal has no business with that. But Michalak held that, since there is no statutory appeal against other acts or omissions or alleged acts or omissions of a regulator, there is no jurisdictional bar in such cases to an application to an employment tribunal.
Among the many decisions adverse to Dr Vaidya in employment tribunals, Mr Lewis concedes that probably one, and conceivably a second, may have resulted, at least in part, from the employment tribunal's view that it simply had no jurisdiction. That also applies to two or three of the cases in which Dr Vaidya appeared as a representative in a tribunal on behalf of others. But the vast majority of the decisions...
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John Caine v Advertiser and Times Ltd
...without merit, the decision whether to grant an ECRO “is not a question of a batting average” (see Attorney General v Vaidya [2017] EWHC 2152 (Admin), per Bean LJ). Ms Hamer submitted: “The vice in this case is the indiscriminate issuing of claims and applications, the vast majority of whi......
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HM Attorney General for England and Wales v Benjamin Gray
...we shall make will be an all proceedings order. Whether any order should include ‘ Vaidya’ terms 134 In Attorney General v Vaidya [2017] EWHC 2152 (Admin) Bean LJ, with whom Goss J agreed, expressed the view that when a s.42 order is made against a vexatious litigant, it should be “standar......
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HM Attorney General for England and Wales v Paul Millinder
...partnership in any proceedings. Mr Lewis for the Attorney General, relying on the judgment of Bean LJ in Attorney General v Vaidya [2017] EWHC 2152 (Admin), submitted that a restriction in the form of paragraph 6 of the draft order is appropriate, in particular given that on occasion Mr Mi......
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R Yolande Kenward v Electoral Commission
...considered the various claims and applications made by the applicant to which I have just referred: see HM Attorney General v Vaidya [2017] EWHC 2152 (Admin), a decision of the Divisional Court (see pages 6 and 7). It is only open to a court to consider totally without merit certifications ......