Neutral Citation Number: [2006] EWCA Civ 888

Cases No: A2/2005/2162, A2/2005/2162 (A)

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

Date: 29/06/2006
Before :

LORD JUSTICE SEDLEY
and
SIR PETER GIBSON
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Between :

	LONDON BOROUGH OF ENFIELD	Applicant	
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	MS NATASHA SIVANANDAN	Respondent	

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Mr C Quinn (instructed by London Borough of Enfield Legal Service) for the Applicant
The Respondent appeared in person.

Hearing date: Friday 5 May 2006
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 Judgment

Lord Justice Sedley : 

1.	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.
2.	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. 
3.	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. 
4.	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. 
5.	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. 
6.	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. 
7.	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. 
8.	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. 
9.	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. 

10.	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.
11.	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 proceedings not on its merits but for abuse of process, was terminal in this regard. It operated in law to foreclose any relitigation of issues which had been or ought to have been included in those proceedings. This fact, however, which would in many cases be conclusive against a persistent litigant such as Ms Sivanandan, has here to be qualified by two particular features. 
12.	One is that her second set of proceedings, based essentially on post-termination discrimination, was issued in February 2004 in reliance upon the recent decision of the House of Lords in Relaxion Group vRhys-Harper [2003] UKHL 33, [2003] 4 All ER 1113, which established for the first time that the legislation would admit such a claim. The EAT was right to say, as it did on the strike-out appeal, that “even if she had not raised a compliant of post-termination discrimination and victimisation prior to [the Gay tribunal’s decision], she ought to have done”. It is true that, prior to the House of Lords’ decision, the employment protection legislation was believed not to include such claims, but this does not cure the want of merit in the second employment tribunal claim. 
13.	A second feature of the disputes which followed the failure of the first originating application is that, in defiance of the preliminary ruling in October 1997 that Ms Sivanandan’s employer at the material time had been the London Borough of Enfield, the local authority persisted for years in denying it. In December 1997 the chief executive wrote to Ms Sivanandan: 

“… the Council has never regarded you as an employee. The issue of reinstatement does not arise ...”

In January 2003 the borough secretary and solicitor wrote to her:

“Whilst in the context of your Tribunal Application the Tribunal refused to accept the Council’s submissions that it should not have been a proper Respondent for the purpose of the Tribunal proceedings, the Council does not accept that it was your employer.

You were dismissed from your employment with EREC by that organisation.”

14.	In legal principle Ms Sivanandan ought simply to have ignored this stance, which defied a binding decision of a tribunal of competent jurisdiction and which Mr Quinn, for the council, has not been able to explain or excuse. She had initially responded to the borough’s denial that it was her employer by issuing proceedings against the borough in the County Court for discrimination in its capacity as a provider of facilities and services. These proceedings were withdrawn by her when she secured the tribunal’s preliminary decision that Enfield had indeed been her employer. But it is not wholly surprising that Ms Sivanandan felt frustrated by Enfield’s prolonged refusal thereafter to accept that it had indeed been her employer, nor therefore that when in November 2003 Enfield admitted before Master Leslie that it had indeed been her employer Ms Sivanandan thought that a new door had been opened to her. She knows now that it had no such effect, and she has accordingly withdrawn the third and fourth employment tribunal claims, both based on post-termination discrimination, which she went on to issue in May and August 2005. 
15.	In the EAT Judge Peter Clark was able to say: 

“… her conduct [before the Gay tribunal] is a matter of regret to the Claimant now (and has certainly not been replicated in the courteous presentation of her case before me)…”

In this court, too, while understandably anxious and at times distressed, Ms Sivanandan has been courteous in her submissions and for the most part realistic in her approach. She has to accept, however, that finality in litigation is a cardinal principle of any system of justice, and that the forfeiture of her case at the point of hearing in September 2000 was the end, in litigation terms, both of the claims she had spelt out against Enfield as her employer and of any associated claims she could have made against them.
16.	In the unusual circumstances which I have described, I do not consider that the point has been reached at which it would be right to make a civil proceedings order against Ms Sivanandan. The repeated issuing of claims without merit is a necessary but not always a sufficient condition of such an order. It must also be proportionate to make it, since it interferes substantially with a citizen’s access to the courts. For my part I am prepared to accept that, given the independent substantiation of some of the complaints which had led to Ms Sivanandan’s dismissal in the first place, and the refusal of Enfield over the succeeding years to accept the finding that it was answerable as her employer for any sustainable claim she might have, the history of her initially contumacious conduct of the principal claim, and thereafter of her issuing one surrogate claim after another, does not warrant the making of a civil proceedings order at the present moment. 
17.	I say ‘at the present moment’ for this reason. If Ms Sivanandan had been able to give us her word that she recognised this and would stop attempting to litigate against Enfield over her employment and dismissal, I would have been perfectly willing to accept it. As it is she has candidly said that she may yet bring further proceedings. One cannot of course say in advance that such proceedings would go the way of the others, but Ms Sivanandan must face the fact that, if they do, she is likely to be held to have passed the point of no return on the road to a civil proceedings order. 
18.	For the reasons I have given, however, I would decline to make the civil proceedings order for which Enfield have applied. 

Sir Peter Gibson:
19.	The London Borough of Enfield (“Enfield”) applies for an extended civil restraint order under CPR 3.4 restraining Ms Sivanandan from issuing claims or making applications in any court including the Employment Tribunal (“ET”) concerning any matter involving or relating to or touching upon her employment by Enfield without first obtaining the permission of a judge identified in the order. The court’s jurisdiction to make such an order is dependent on the court being satisfied that the party concerned has “persistently issued claims or made applications which are totally without merit”.  Whilst that condition looks to the past, the purpose of the jurisdiction is to protect the resources of the court for the future so that the court is saved from having to devote  time to dealing with hopeless cases brought by litigants who refuse to accept previous decisions of the court (see Bhamjee v Forsdick [2004] 1 WLR 88). The court has a discretion whether to make the order even if the condition for the order is satisfied.  Although this application is made for the first time in this court, it is not in dispute that this court has the power to make the order sought.
20.	Enfield relies on the witness statement of Asmat Hussain in support of its application.  In that statement Mr Hussain refers to a number of claims (but no applications) which are said to show that Ms Sivanandan has persisted in issuing claims which are totally without merit.
21.	The first claim made by Ms Sivanandan relating to her employment, which lasted less than 5 months, was that brought by her by an Originating Application presented to the ET on 10 March 1997 (“the First ET Claim”). At that time there was some uncertainty as to who had been her employer and she named as respondents both Enfield and the Enfield Racial Equality Council (“EREC”).  Her own submission that Enfield was her employer was held correct by the ET on 21 November 1997. However on 8 September 1997 she had issued protective proceedings in the County Court to guard against the risk that in the First ET Claim EREC might be found to be her employer.  She was given permission to withdraw the County Court claim on 12 May 1998.  Both in the First ET Claim and in the County Court claim she alleged racial and sex discrimination occurring not only before but also after the termination of her employment.  There was no adjudication on the merits of her claim in the First ET Claim because it was struck out by the ET on 6 September 2000 by reason of the conduct by her of the proceedings. In the circumstances neither the First ET Claim nor the County Court claim can be said to be an example of her issuing a claim utterly without merit. 
22.	Mr Hussain refers next to proceedings commenced by Ms Sivanandan in the Queen’s Bench Division on 10 October 2002 for breach of contract.  In that claim she sought damages from Enfield as her employer in not following its grievance and disciplinary procedures although they were part of her contract.  She had made similar claims in the First ET Claim and in the County Court claim, but asserted that the breach of contract claim had been withdrawn by her before the ET in the First ET Claim.  Although she achieved partial success before Master Leslie in resisting Enfield’s application to strike out her claim, and Enfield’s appeal to Sir Edwin Jowitt, sitting as a High Court judge, failed, this court allowed Enfield’s further appeal and struck out the whole of her claim.  The primary basis of this court’s decision was that she had not withdrawn her breach of contract claim before the ET but both Wall LJ and Buxton LJ made clear their view that the claim was an abuse of process.  In the light of that decision I regard the issuing of the High Court claim as one utterly without merit.
23.	Next Mr Hussain refers to a second Originating Application presented by Ms Sivanandan on 17 February 2004 (“the Second ET Claim”), alleging race and sex discrimination by Enfield in refusing her access to its contractual grievance and disciplinary procedures before and after the termination of her employment.  She claimed that it was because of a concession by Enfield before Master Leslie that it was her employer, something that Enfield had previously denied even after the decision of the ET on 21 November 1997, together with the decision of the House of Lords in Relaxion Group v Rhys Harper [2003] 4 All ER 1113, in which it was held for the first time that a former employee could bring a claim for discrimination occurring after the termination of employment, that she commenced the Second ET Claim. His Honour Judge Peter Clark struck out that claim on the basis that it was an abuse of process as an attempt to relitigate a complaint which was or ought to have been raised in the First ET Claim.  This court refused permission to appeal.  As I pointed out in paragraphs 16, 19 and 20 of  my judgment on the application for permission to appeal, the fact is that Ms Sivanandan was not inhibited from making complaints of post-termination discrimination long before the Relaxion decision in the House of Lords and that at least from the time of the hearing before the ET on 24 October 1997 when she successfully argued that Enfield was her employer she has been consistent in treating Enfield as her employer and in complaining that EREC’s and not Enfield’s grievance and disciplinary procedures had wrongly been followed to dismiss her.  The Second ET Claim therefore seems to me to be another utterly without merit.
24.	Mr Hussain then refers to a third Originating Application presented by Ms. Sivanandan on 22 May 2005, by which she complained of continuing acts of race and sex discrimination by Enfield in respect of its refusal to grant her access to its grievance and disciplinary procedures. He also refers to a fourth Originating Application presented by her on 25 August 2005 once again raising a complaint against Enfield of post-termination discrimination as well as other claims said to relate to her employment which terminated on 11 December 1996.  Both those claims are in my view to be categorised as utterly without merit.  However, we were informed at the hearing that both claims have been withdrawn.
25.	In the light of that history I think it clear that Ms Sivanandan has in the past persistently issued claims which are totally without merit.  Our attention has been drawn to the internal report which Enfield commissioned relating to the numerous complaints which she had raised before her dismissal.  Whilst some of those complaints were upheld in the report, most of the more substantial complaints seem to me not to have been found substantiated.  As no ET has made any findings on her dismissal, for my part I cannot derive any assistance from the report relevant to the application before us. 
26.	Nevertheless this court has a discretion whether to make the order now sought. It is to Ms Sivanandan’s credit that she has withdrawn her claims in the third and fourth Originating Applications.  She has told us that she may wish to bring further proceedings, but that withdrawal suggests to me that a more realistic attitude is now being adopted by her.  In the circumstances, albeit with considerable hesitation, I am prepared to concur in the order proposed by Sedley LJ.