What are Civil Proceedings Orders?
Section 42 of the Senior Courts Act 1981 (“SCA”) enables a court to make an indefinite order preventing a person from starting proceedings, including proceedings in the Employment Tribunal, without the court’s permission.
Civil Proceedings Orders (“CPO”) are not the same as Civil Restraint Orders, which are a different type of order which can restrain a person from:
- making further applications in existing proceedings (Civil Procedure Rule (“CPR”) 2.3(1)(a));
- issuing certain claims or making certain applications in specified courts (CPR 2.3(1)(b)); or
- issuing any claim or making any application in specified courts (CPR 2.3(1)(c)).
A CPO covers all litigation and applications that a ‘vexatious’ litigant may wish to bring. CPOs also involve the publication of the litigant’s name on a list which receives widespread circulation (this can be found here). The criteria for making a CPO under section 42 of the SCA are different from, and more stringent than, the criteria for a civil restraint order which is made in exercise of the court’s inherent jurisdiction under CPR 3.11 and PD 3C.
Further, a CPO is not the same as a Restriction of Proceedings Order (“RPO”), which is a similar type of order that can restrict the issue of proceedings by vexatious litigants solely in the Employment Tribunal or the Employment Appeal Tribunal. Barring the difference in the judicial venue where the orders apply, CPOs and RPOs largely act in the same manner. Section 33 of the Employment Appeal Tribunal governs RPOs and states that the Attorney General must apply for such an order to the Employment Appeal Tribunal. The test for the award of an RPO is the same as the tests for a CPO (as set out below).
When can Civil Proceedings Orders be issued?
It is not possible for an individual or company to apply for a CPO. Such an order can only be obtained by the Attorney General. In the circumstances, the first step in obtaining a CPO is to lodge a notification with the Attorney General’s office that consideration should be given to applying for a CPO against an individual.
The Attorney General advises that if a person believes an individual has been involved in vexatious litigation, full particulars of the subject’s alleged vexatious activity, including court references, parties’ names and outcomes should be provided to the Government Legal Department on a spreadsheet, together with supporting materials. The Government Legal Department will then investigate on behalf of the Attorney General. As a guide, the Attorney General is unlikely to intervene unless at least six separate claims have been commenced by the subject which have been unsuccessful or struck out but each case will be looked at on its own merits.
To grant a CPO, the court needs to be satisfied that the person is “habitually, persistently and without reasonable grounds engaged in vexatious proceedings”. Whilst there is no formal definition of what a vexatious litigant is, it is generally agreed that they are individuals who:
- bring repeated litigation obsessively, despite clear judicial determination of the issues; and
- ignore court orders.
Lord Hoffman clarified in Attorney General v Barker that the hallmark of vexatious proceedings is that they have “…little or no basis in law;…[their] 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 [they involved] an abuse of process of the court, meaning…for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.
The threshold for obtaining a CPO is a high bar and the Attorney General’s guidance recommends that those thinking of asking the Attorney General to investigate an individual’s litigation activity with a view to proceedings under section 42 SCA should, in the first instance, seek alternative remedies, such as a civil restraint order. CPOs are generally seen as an additional tool which the courts can impose in circumstances where a civil restraint order has not been fully effective. A prior civil restraint order is not however a requirement under section 42 SCA.
When assessing whether to grant a CPO, the court will consider:
- the judge’s conclusions in the underlying proceedings;
- the whole picture when deliberating if the conduct has been ‘habitual and persistent’; and
- the balance of justice, weighing a citizen’s right to access a civil court’s jurisdiction and the need for public protection against abusive and ill-founded claims;
- whether or not it would be appropriate to extend the order to prevent the individual from acting for anyone else in any proceedings as a McKenzie Friend (a person without formal legal training who assists a litigant in person during a court case).
In the circumstances, the issuing of a CPO will ultimately depend entirely on the facts of a case. Examples of when such orders have been made include:
- an individual issuing nine separate claims or appeals, on their own behalf or on behalf of others, which had all been described as totally without merit (Attorney General v Vaidya); and
- a prisoner issuing almost 80 claims or applications on their own behalf or on behalf of other prisoners which were totally without merit, “pervaded with dishonesty and deception” and were in breach of numerous general civil restraint orders. Some of these proceeding had also harassed government departments and employees with serious yet groundless allegations of professional misconduct (Attorney General v Gayle-Childs).
Recent clarification from the Employment Appeal Tribunal (EAT) regarding Civil Proceedings Orders
On 5 April 2023, in the case of Williamson v Bishop of London, the EAT confirmed that where a claimant is subject to a CPO, if proceedings are issued by that individual, those proceedings are void and not simply ‘stayed’ pending an application for permission to issue a claim.
Mr Williamson was the subject of a CPO from 1997 requiring him to obtain permission from the High Court before issuing proceedings. On 1 April 2019, Mr Williamson presented a claim before the Employment Tribunal, without the required permission, for age discrimination when his parish appointment was terminated after reaching the age of 70. The respondent then raised the fact Mr Williamson was subject to a CPO and Mr Williamson at that point applied to the High Court for retrospective permission to bring such a claim. An order was made by the High Court allowing Mr Williamson permission to pursue his claim and granting him permission to issue proceedings in the employment tribunal. However, on 8 January 2020, the employment tribunal held that the proceedings already commenced in the tribunal were null and void notwithstanding the High Court’s order allowing for retrospective permission.
Mr Williamson appealed to the EAT. The appeal court ultimately agreed with the Employment Tribunal’s decision that the proceedings were void and that they could not be validated retrospectively. This decision had significant repercussions for the claimant because the time limit to bring an age discrimination claim against his parish had by then expired.
Should you have any questions on CPOs, or any other type of order which could prevent an applicant from issuing unmeritorious applications, please do not hesitate to contact Linky Trott, Clare Gilroy-Scott or any other member of the Employment team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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