Williamson v Bishop of London and Others
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] EAT 118 |
| Court | Employment Appeal Tribunal |
2022 July 13; Aug 1
Industrial relations - Employment tribunals - Procedure - Civil proceedings order - Claimant subject to order prohibiting institution of any civil proceedings without leave - Age discrimination claim commenced in employment tribunal without first obtaining leave - Permission to pursue claim later obtained - Whether retrospective leave possible - Whether proceedings nullity -
The claimant was subject to a civil proceedings order, made in 1997 under section 42 of the Senior Courts Act 1981F1, prohibiting him from instituting any civil proceedings or continuing any existing proceedings without leave of the High Court. In 2019, he commenced a claim in the employment tribunal of unlawful age discrimination, without first obtaining the required leave. When the respondents raised the issue of the civil proceedings order, the claimant applied to the High Court for an order permitting him either to proceed with his current claim before the employment tribunal or to bring a fresh claim. A deputy High Court judge decided that there were reasonable grounds for the tribunal proceedings and that they were not an abuse of process, and he made an order granting the claimant permission (1) to pursue his existing proceedings, alternatively (2) to issue fresh proceedings. On a preliminary hearing to determine the effect of that order on the employment tribunal claim, an employment judge, applying a previous decision of the High Court which had not been before the deputy High Court judge, held that the existing proceedings, having been brought without leave, were a nullity, so that paragraph (1) of the order could have no effect. When the claimant subsequently sought to pursue fresh employment tribunal proceedings, relying on paragraph (2) of the High Court order, they were rejected as being out of time.
On an appeal by the claimant—
Held, dismissing the appeal, that, in the authority relied on by the employment tribunal, the High Court had held that employment tribunal proceedings commenced by a claimant who was subject to a civil proceedings order without leave of the High Court having first been obtained, contrary to section 42(1A) of the Senior Courts Act 1981, were a nullity, and that, therefore, there was nothing to which any retrospective granting of leave could attach; that, although, as a court of co-ordinate jurisdiction, the Employment Appeal Tribunal was not bound by a decision of the High Court, it was persuasive authority to be followed unless one of the accepted exceptions applied; that it was clear that the case had not been decided per incuriam, nor was it manifestly wrong, nor were there exceptional circumstances that would warrant departing from the decision; that, in any event, in stating that “no civil proceedings shall … be instituted in any court” without leave, section 42(1A) imposed a jurisdictional barrier consistent with the purpose of a civil proceedings order, which was to protect the interests of the public against vexatious claims, and the wider interests of justice, by ensuring that the time and resources of courts and tribunals were not taken up by wholly unmeritorious litigation, and, while the imposition of such an order was a draconian step, it did not give rise to an injustice that was disproportionate; and that, accordingly, the employment tribunal had been correct to treat the claimant’s purported claim before it as null and void (post, paras 26, 64–68, 72, 73, 74, 78).
Per curiam. Accepting that the present decision places an additional burden on the would-be litigant who is subject to a civil proceedings order in the employment tribunal, because of the shorter time limits that tend to apply, if they take reasonable steps to seek the permission of the High Court in good time before the expiration of the relevant limitation, that would be a relevant consideration in any application for an extension of time (post, para 75).
The following cases are referred to in the judgment:
Attorney General v Ebert
Attorney General v Edwards
Attorney General v Taheri [
British Gas Trading Ltd v Lock [
Carr v British International Helicopters Ltd [
Chief Constable of Avon and Somerset Constabulary v Gray
Choudhury v Stepney Shahjalal Mosque and Cultural Centre Ltd
Couper v Irwin Mitchell LLP
Ewing, In re
Ewing v News International Ltd
Ewing v Security Service
Foden v Smailes
Muman v Nagasena [
Park v Cho
Portec (UK) Ltd v Mogensen [
Pyx Granite Co Ltd v Ministry of Housing and Local Government [
Rendall v Blair (
St George, Hanworth, In re [
Saunders (A Bankrupt), In re [
Seal v Chief Constable of South Wales Police
Seal v United Kingdom (Application No 50330/07) (
Secretary of State for Business, Innovation and Skills v Feld
Senior-Milne v Secretary of State for Justice
Young v Bristol Aeroplane Co Ltd [
The following additional case was cited in argument:
Veluppillai v Chief Land Registrar
APPEAL from an employment judge sitting at Watford
On 8 January 2020 the employment judge dismissed a complaint of age discrimination by the claimant, Mr Paul Williamson, against the respondents, the Bishop of London, the London Diocese Fund and the Church Commissioners for England, on the ground that the proceedings were a nullity and the tribunal had no jurisdiction to hear the complaint as it had been brought in breach of a civil proceedings order. The claimant appealed on the grounds that (1) the wording of a High Court order granting the claimant permission to pursue existing proceedings was unambiguous and binding on the employment tribunal; and (2) the High Court decision in Attorney General v Edwards [2015] EWHC 1653 (Admin) was not binding and should not be followed.
The facts are stated in the judgment, post, paras 3–9.
James Wynne (instructed by
Edward Kemp and Bláthnaid Breslin (instructed by
The court took time for consideration.
1 August 2022. EADY J (PRESIDENT) handed down the following judgment.
Introduction1 This appeal raises a question as to the consequences of a claim being brought in the employment tribunal by a claimant who is the subject of a Civil Proceedings Order (“CPO”) who has not first obtained the required permission of the High Court.
2 In giving this judgment, I refer to the parties as the claimant and the respondents as below. This is the full hearing of the claimant’s appeal against a judgment of the Watford Employment Tribunal (Employment Judge McNeill QC, sitting alone on 8 January 2020), by which it was held that the claimant’s claim, having been presented without first obtaining the leave of a High Court judge, was a nullity. The claimant has appealed and, after a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (SI 1993/2854) (as amended) before Judge Tucker on 11 November 2021, this matter was permitted to proceed to a full hearing. The claimant was represented before the employment tribunal by Mr Wynne, of counsel, as he is today. The respondents were also represented by counsel below, albeit not by Mr Kemp and Ms Breslin, who appear before me.
The relevant background3 On 16 July 1997, the claimant 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) of the Senior Courts Act 1981 (“SCA”), by which it was ordered that the claimant was prohibited 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 claimant] 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.”
4 It is common ground that the employment tribunal is a court for the purposes of the CPO.
5 The claimant seeks to pursue an age discrimination claim before the tribunal, relating to the termination of his tenure as priest-in-charge at the Parish of St George, Hanworth Park, when he reached the age of 70 on 18 November 2018. There are issues between the parties as to the claimant’s employment status, and thus whether the tribunal would have jurisdiction to hear the case in any event, but, 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 the process of the tribunal.
6 The claimant presented his claim to the employment tribunal on 1 April 2019, without having obtained the permission of the High Court. After the respondents had raised the issue of the CPO, on 12 September 2019, the claimant made an application for leave to the High Court, attaching a draft order by which he sought permission...
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