London Borough of Enfield v Ms Natasha Sivanandan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Sir Peter Gibson |
| Judgment Date | 29 June 2006 |
| Neutral Citation | [2006] EWCA Civ 888 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Cases No: A2/2005/2162, A2/2005/2162 (A) |
| Date | 29 June 2006 |
[2006] EWCA Civ 888
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley and
Sir Peter Gibson
Cases No: A2/2005/2162, A2/2005/2162 (A)
Mr C Quinn (instructed by London Borough of Enfield Legal Service) for the Applicant
The Respondent appeared in person.
Following our refusal of Ms Sivanandan's application for permission to appeal to this court, the intended respondent, the London Borough of Enfield, has applied for an extended civil restraint order against her on the ground that there is every indication that Ms Sivanandan, unless stopped, will continue to issue baseless proceedings against the borough in one forum or another.
At the outset of the application Ms Sivanandan asked that Sir Peter Gibson should stand down from the court, on the ground that he had participated as the presiding Lord Justice in the decision of this court [2005] EWCA Civ 10 which resulted in the striking out of her High Court proceedings.
Having considered her application we refused it and proceeded to hear the application. Our reasons were these. The principle that no litigant has a right to handpick his or her court applies both to the inclusion and to the exclusion of particular judges. A judge who either has a direct interest in the case (which has no bearing here) or whom an objective and informed observer would fear might be parti pris should, however, not sit.
Ms Sivanandan's objection, as explained to us by her, was that the court presided over by Sir Peter Gibson had failed to take her claim as its highest as it is required to do on a strike-out application, and that it had denied her the opportunity to develop her substantive case. These are matters with which the judgment itself deals. They are not capable of leading an informed and objective observer to suspect or fear that any further decision by a member of that particular court would be arrived at by improper means or for improper reasons. The fact that a particular judge has on earlier occasion adjudicated against a litigant (or for that matter in favour of the litigant's opponent) is not even prima facie evidence of partiality. It is evidence simply that the judge has been doing his or her job.
A civil proceedings order can be made by this court under the powers contained in CPR 3.11 and in the practice direction at 3 CPD 3 and 7. The qualifying situation arises "where the party against whom the order is made persists in issuing claims or making applications which are totally without merit". If made in this court, the protection of such an order may extend to any court, including an employment tribunal: see Peach Grey and Co v Sommers [1995] ICR 549.
The history of Ms Sivanandan's litigation against the London Borough of Enfield since the presentation of her first originating application in March 1997 has been outlined by Sir Peter Gibson in the judgment which he has given, and with which I have expressed my agreement, on the latest of Ms Sivanandan's applications to this court. The history can be found in greater detail, up to January 2005, in the judgment of Wall LJ [2005] EWCA Civ 10, §10–69. It is, in short, a history of persistent endeavours to relitigate matters which were concluded in all material respects ay an early stage of the proceedings. Each defeat has been followed by different litigation directed to a related end. Asked by us, following our refusal of permission to appeal, whether she was prepared to accept that she had now reached the end of the road, Ms Sivanandan said that she was considering issuing proceedings for misfeasance in public office.
The initial proceedings established by way of a preliminary finding on 22 October 1997 that Ms Sivanandan's employer had been Enfield and that she had been dismissed from Enfield's employment on 11 December 1996. These findings bound and continue to bind the parties. From that point on the proceedings pursued by Ms Sivanandan, beginning with the allegations in the initial claim which was eventually struck out in September 2000, and continuing through the other actions and claims by which she has sought to replicate her case, have been unsuccessful and in considerable part misconceived. The single possible exception, which will not be affected by the present application, is the appeal currently pending in the EAT, which the EAT must now deal with on whatever merits it possesses.
However, in considering whether the court is required to take the drastic step of forbidding Ms Sivanandan to issue any more proceedings without permission (Mr Quinn does not seek by this order to stay those that are already on foot), regard has to be had to some unusual features of the material history.
First, the original claim arose out of complaints made by Ms Sivanandan about the organisation and administration of the body, Enfield Racial Equality Council (EREC), for which she had been working for a relatively short time. One complaint concerned the appointment of a race and violence officer in breach of proper appointment procedures. The other concerned 25 alleged instances of financial irregularity, unacceptable personnel practices and inefficiency on the part of EREC, together with the council's failure to respond promptly to the these complaints.
It was the making of the complaints which had led to Ms Sivanandan's dismissal following a hearing from which she had absented herself. But the complaints themselves were eventually investigated and some were found to have substance. In May 1998 the Chief Executive of the borough wrote to Ms Sivanandan in relation to the appointment of a race and violence officer:
"From the evidence available it would appear that there was not compliance in this appointment with the Council's policies, which reflect the appropriate legislation and legislative guidance."
Later in the same month, an internal report on Ms Sivanandan's complaints about incompetence and financial and organisational mismanagement on the part of EREC concluded that the relationship between the council and EREC had been informal and lacking in financial control, with the result that "equity of treatment, proper accountability and the protection of the independent status of both organisations has not been afforded". The focus of the report, being internal, was upon the council's rather than EREC's shortcomings, but it thanked Ms Sivanandan for bringing the issues to the council's attention, expressed regret at its failure to deal with her complaints promptly when she had first raised them and – not unimportantly –recommended that the report go to the Commission for Racial Equality and the Charity Commission.
Notwithstanding these reports, Ms Sivanandan's dismissal from employment and then, in September 2000, the dismissal of her tribunal claim made it impossible, she says, for her to find other work in the race relations field. Hence her continued attempts to secure a judgment or decision in her favour by one means or another. For reasons which are clear from the judgments referred to above, however, the dismissal of the initial employment tribunal...
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