The Reverend Paul Williamson v The Bishop of London and Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lord Justice Popplewell,Lord Justice Baker |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWCA Civ 379 |
| Docket Number | Case No: CA 2022/001944 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
[2023] EWCA Civ 379
Lord Justice Baker
Lady Justice Simler
and
Lord Justice Popplewell
Case No: CA 2022/001944
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MRS JUSTICE EADY (PRESIDENT)
Royal Courts of Justice
Strand, London, WC2A 2LL
James Wynne (instructed by Scott-Moncrieff & Associates Ltd) for the Appellant
Edward Kemp and Bláthnaid Breslin (instructed by Winckworth Sherwood LLP) for the Respondents
Hearing dates: 15 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
Section 42 of the Senior Courts Act 1981 (“SCA 1981”) enables the High Court to restrict the rights of vexatious litigants to institute legal proceedings by imposing an order requiring leave before such proceedings may be commenced. The question that arises on this appeal is what as a matter of statutory construction Parliament intended should be the consequence if civil proceedings are started without first obtaining leave in breach of the prohibition contained in a civil proceedings order made under section 42(1A) SCA 1981. Are those proceedings a nullity or may they simply be stayed unless and until the leave required by section 42 is granted? There may be cases where this will not matter. But here, because of the expiry of the relevant limitation period, the consequence makes a material difference to the ability of the appellant to pursue his claim of unlawful age discrimination.
The appellant, The Reverend Paul Williamson, was made the subject of a civil proceedings order (“CPO”) pursuant to section 42(1A) SCA 1981 in 1997. The CPO prohibited him from instituting any civil proceedings in any court or tribunal “unless he obtains the leave of the High Court having satisfied the High Court that the proceedings are not an abuse of the process”. For reasons that do not matter on this appeal, the appellant commenced proceedings on 1 April 2019, in the employment tribunal, without first obtaining such leave.
Following a contested hearing, on 8 January 2020 the employment tribunal (EJ McNeill KC) held that the appellant's claim could not progress because it was a “nullity” brought in breach of a CPO and there was no jurisdiction to entertain it. The appellant appealed. By a judgment dated 1 August 2022, the Employment Appeal Tribunal (Eady P) (“the EAT”) dismissed his appeal against the decision that the claim was a nullity. The EAT added as a postscript, that the EAT's own judgment was a nullity because permission had not been obtained from the High Court to bring the appeal.
The appellant submits that both tribunals below were wrong. He submits that the interests of courts and respondents or defendants are fully served by the ability of a court or tribunal to strike out or stay proceedings within their existing rules of procedure, and there is simply no need for the concept of a claim being a nullity. It offends the overriding objective. There is no concept of a claim being treated as a nullity in the Employment Tribunals Act 1996 or the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) (save for rule 6 which does not apply). This consequence is also not expressly provided for by section 42 SCA 1981, which establishes the jurisdiction for a court to make an order in the form of a CPO, imposes the conditions for permission to be granted, but does not identify the consequences of a claim brought in breach of such an order. In these circumstances, the breach is plainly to be treated as a procedural bar that can be cured.
For their part, the respondents submit that a claim presented without first obtaining the necessary permission of the High Court is a nullity. Further, the High Court cannot grant retrospective permission to bring such a claim. The terms of section 42(1A) SCA 1981 are clear: where an individual is subject to a CPO “no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made”. This is consistent with the object and purpose of a CPO, which is to “avoid the unnecessary use of court time and resources on unjustified litigation and to protect prospective defendants from the expense which that involves”: see Ewing v News International [2010] EWCA Civ 942 per Patten LJ at paragraph 18. This purpose requires that an individual subject to a CPO be “debarred” from commencing proceedings without permission of the High Court. Case law including highly persuasive dicta supports this approach.
Although there are five grounds of appeal, it is common ground that there is essentially one question for determination by this court: what is the meaning and effect of section 42, and in particular, in a case to which it applies, where proceedings are brought without leave, does it operate as a jurisdictional or merely a procedural bar?
The relevant factual background
On 16 July 1997, on the application of the Attorney General, the appellant was made the subject of a CPO issued by a Divisional Court of the High Court (Rose LJ and Jowitt J) under section 42(1) SCA 1981. The terms of the order prohibited the appellant from:
“1. instituting any civil proceedings in any Court and
2. continuing any civil proceedings instituted by him in any Court before the making of this Order and
3. making any application other than an application for leave as required by section 42 of the [SCA] in any civil proceedings instituted in any Court by any person unless [the appellant] obtains the leave of the High Court having satisfied the High Court 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.”
The term “any court” in section 42(1A) SCA 1981 has been held to extend to all inferior courts including tribunals. The term accordingly embraces employment tribunals.
The appellant purported to present a claim in the employment tribunal on 1 April 2019. The claim alleged unlawful age discrimination in relation to the termination of the appellant's tenure as Priest-in-Charge at the Parish of St George, Hanworth, when he reached the age of 70 on 18 November 2018. Subject to the effect of the CPO on the proceedings, it is not otherwise suggested that the claim itself is vexatious or would amount to an abuse of process. The appellant did not obtain the permission of the High Court before presenting the claim. On 8 May 2019, the respondents filed their substantive defence to the claim by way of Grounds of Resistance, and also pleaded that the claim was a nullity in the absence of leave of the High Court. A preliminary hearing to consider jurisdiction was listed to be heard in the employment tribunal on 8 January 2020.
Meanwhile, on 12 September 2019, the appellant sought leave of the High Court, either to continue the proceedings he had issued on 1 April 2019 or for permission to issue fresh proceedings in the employment tribunal. His application was supported by a witness statement from his solicitor, who acknowledged that proceedings had been issued in the employment tribunal without having first obtained the leave of the High Court. Reference was made to the fact that the respondents had contended that the employment tribunal proceedings were a nullity. The application was dealt with on paper, without notice to the respondents. David Pittaway KC, sitting as a deputy High Court Judge expressed himself satisfied that the claims made in the employment tribunal proceedings were not in themselves an abuse of process. He made an order dated 24 September 2019 (“the Pittaway Order”) as follows:
“1. The Applicant do have permission to pursue the proceedings issued by him in the Watford Employment Tribunal on 1 st April 2019 under Case Number 3313470/2019 against (1) The Bishop of London (2) The London Diocesan Fund and (3) The Church Commissioners for England (the “ET” Respondents) in respect of a claim for Age Discrimination contrary to the Equality Act 2010.
In the alternative
2. The Applicant do have permission to issue proceedings in the Watford Employment Tribunal as regards the termination of his tenure as the Priest-in-Charge of St. George Hanworth against the (1) The Bishop of London (2) The London Diocesan Fund and (3) The Church Commissioners of England.”
The parties disagreed about the meaning and effect of this order, but that disagreement is now academic and it is agreed by counsel on both sides that nothing turns on it for present purposes. It is now common ground that the first paragraph was intended to take effect if, but only if, at the preliminary hearing it was determined that the proceedings were not a nullity.
On 8 January 2020 the preliminary hearing in the employment tribunal took place. Following argument, EJ McNeill KC ruled that the April 2019 employment tribunal claim was a nullity having been presented without permission of the High Court. There was therefore nothing to which paragraph 1 of the Pittaway Order could attach. The appellant appealed to the EAT.
Meanwhile, on 23 January 2020 the appellant presented a second claim for unlawful age and religious discrimination pursuant to paragraph 2 of the Pittaway Order. On 22 June 2021 that claim was dismissed because it was presented out of time and the employment tribunal held that there was no good explanation for the significant delay (11 months). The appellant has not appealed this decision.
On 1 August 2022 the EAT dismissed the appeal from the employment tribunal decision that the 2019...
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...with section 42(1) of the Senior Courts Act 1981 as interpreted by the Court of Appeal in Williamson v Bishop of London and others [2023] EWCA Civ 379. 11 Case No. 2402775/2023 Even though I considered the proceedings to have been a nullity, I was satisfied that the provisions of the 2013 R......