Employment Cases Update

Nursing & Midwifery Council & Anor v Harrold [2015] EWHC 2254 (QB)

Date published: 10/08/2015

A civil restraint order ("CRO") was being sought to prevent the defendant from pursuing litigation in the ET. The court ruled that the High Court does have inherent jurisdiction to make a CRO covering proceedings before the ET.

The defendant had brought a series of claims against the Trust and the NMC including claims to the ET. The claimants were seeking a civil restraint order ("CRO") in order to prevent the defendant from continuing to pursue this litigation. They submitted that the High Court's general jurisdiction to make a CRO is clearly engaged and that the CRO which they sought was not limited to proceedings in the High Court and the County Court but also extended to proceedings before the ET. It was this aspect of the CRO which raised jurisdictional issues since the defendant contended that the High Court had no power so to order.

The  court ruled that the High Court does have inherent jurisdiction to make a CRO covering proceedings before the ET although whether or not it was appropriate to do so in this case would involve a detailed consideration of the facts. Of particular relevance was Sir Jack Jacob's article in [1970] Current Legal Problems 23: "The Inherent Jurisdiction of the Court" in which he stated:

"But the High court also has power under its inherent jurisdiction to render assistance to inferior courts to enable them to administer justice fully and effectively".

The court said that there is clearly a need for inferior courts to be protected from vexatious proceedings, just as there is for the High Court to be so protected, as reflected in the development of CROs and explained by the Court of Appeal in Bhamjee v Forsdick. As is common ground, an inferior court, such as the ET, has no power itself to make a CRO or equivalent order. It is entirely consistent with the High Court's jurisdiction in matters of contempt for it to be able to make orders to protect the inferior courts in such circumstances. It can be regarded as another example of the High Court's power "to prevent any person from interfering with the due course of justice in any inferior court".

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Neutral Citation Number: [2015] EWHC 2254 (QB)

Case No: TLQ/15/0131

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Rolls Building, Fetter Lane, London, EC4A 1NL

Date: 31/07/2015

Before:

MR JUSTICE HAMBLEN

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Between:

NURSING & MIDWIFERY COUNCIL & anr (Claimants)

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HARROLD (Defendant)

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Adam Solomon (instructed by FieldFisher and DAC Beachcroft) for the Claimants

Claire Darwin (instructed by Slater & Gordon) for the Defendant

Hearing dates: 23 July 2015

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Judgment

Mr Justice Hamblen :

Introduction

1. The Claimants ("NMC" and "the Trust") bring these proceedings under Part 8 for a Civil Restraint Order ("CRO") against the Defendant, Mrs Harrold.

2. An interim CRO was made by Blair J on 23 January 2015. The Claimants now seek a final CRO on the trial of their Part 8 claims.

3. Mrs Harrold contends that the High Court has no power to make the CRO sought and, if it does, it should not do so.

4. This threshold issue involves detailed arguments of law. It was apparent that these would be likely to take up most of the one day set aside for the trial and it was accordingly resolved to deal with that issue and to adjourn all other matters, should they arise. These include the Claimants' objections to the Defendant's participation in the proceedings brought by the Trust and to the late service of evidence.

Background

5. The Trust is responsible for delivering Healthcare in Bristol and South Gloucestershire. Mrs Harrold was employed by the Trust as a nurse between 9 September 2001 and 20 December 2005, when her employment was terminated on the grounds that she refused to return to work and had declined all proposals of alternative employment made to her.

6. The NMC is the public body responsible for the regulation of nurses in England. Mrs Harrold was struck off by the NMC on 22 October 2009 on the grounds that her conduct was found to be "fundamentally incompatible with being on the register".

7. Mrs Harrold has brought a series of claims against the Trust and the NMC relating to these decisions, the timing of the decision by the Trust to refer Mrs Harrold to the NMC, the information provided to the NMC when it did so and to alleged victimisation. Most of these claims have been brought before the Employment Tribunal ("ET"), although there have also been claims made in the County Court. Save for two recent claims, which have been stayed pending the outcome of the Part 8 claim, all of Mrs Harrold's claims against the NMC have been dismissed and all bar one of her claims against the Trust have likewise been dismissed.

8. The Claimants contend that Mrs Harrold has made many hopeless claims and hopeless applications within those claims, a number of which involve seeking to raise under a different guise claims which have already been dismissed. They contend that absent intervention from the court she will continue to pursue this litigation, vexing and harassing publicly funded bodies, and their lawyers. They submit that the High Court's general jurisdiction to make a CRO is clearly engaged but the CRO which they seek is not limited to proceedings in the High Court and the County Court, but also extends to proceedings before the ET. It is this aspect of the CRO which raises jurisdictional issues since Mrs Harrold contends that the High Court has no power so to order.

The CRO regime

9. Since 1 October 2004 (by virtue of the insertion of Rule 3.11 into Part 3 of the CPR) the civil courts have had power to make CROs under the CPR. CPR Rule 3.11 provides:

"Rule 3.11 Power of the court to make civil restraint orders

3.11

A practice direction may set out—

(a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings;

(b) the procedure where a party applies for a civil restraint order against another party; and

(c) the consequences of the court making a civil restraint order."

10. The principles applicable, and practice to be employed, are set out in Practice Direction C to CPR Part 3 ("the PD"). There are three levels of CRO:-

(i) a limited CRO restrains the party against whom the order is made from making any further applications in the proceedings in which the order is made without first obtaining the permission of the judge identified in the CRO (para 2.2(1) of the PD). It is a pre-condition for making a limited CRO that the party in question should have made two or more applications which are "totally without merit" (para 2.1 of the PD );

(ii) an extended CRO restrains the party in question from issuing claims or making applications in the High Court or any County Court (if the order has been made by a judge of the High Court) where those claims or applications concern any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of the judge identified in the CRO (para 3.2(1) of the PD). The pre-condition for the making of an extended CRO is that the party in question has "persistently issued claims or made applications which are totally without merit" (para 3.1 of the PD);

(iii) a general CRO restrains the party in question from issuing any claim or making any application in the High Court or any County Court (if the order has been made by a judge of the High Court) without first obtaining the permission of the judge identified in the CRO (para 4.2(1) of the PD). The pre-condition for the making of a general CRO is that the party restrained should have persisted in issuing claims, or making applications, which were "totally without merit" in circumstances where an extended CRO would not be sufficient or appropriate (para 4.1 of the PD ).

11. The CRO regime puts on a statutory basis the powers of the High Court, under its inherent jurisdiction, to prevent abuse of its process. The High Court's powers under its inherent jurisdiction was identified, and explained, by the Court of Appeal in Bhamjee v Forsdick [2004] 1 WLR 88. Thus the limited CRO is the statutory reflection of what was known as a Grepe v Loam order (Grepe v Loam (1887) 37 Ch D 168). The extended CRO is the statutory reflection of the extended Grepe v Loam order which the Court of Appeal identified in Ebert v Venvil [2000] Ch 484. The general CRO reflects what was set out in Attorney General v Ebert [2002] 2 All ER 789 at [35].

12. It is clearly desirable that the High Court should have the power to make CROs. They prevent vexation and oppression. They also prevent the unmeritorious waste of court resources. The importance, as a matter of justice, of ensuring that court resources are used appropriately also applies to tribunal proceedings – see Harris v Academies Enterprise Trust (EAT) [2015] ICR 627 at [33] per Langstaff J.

13. It is to be noted that under the CPR the High Court can only make a CRO in relation to the issue of claims or applications in the High Court and the County Court. This is a reflection of the fact that the CPR only governs procedure in the Civil Division of the Court of Appeal, the High Court and the County Court – see section 1(1) of the Civil Procedure Act 1997. As the Claimants accept, tribunals are outside the scope of the CPR since "court" in CPR 3.11 does not include a tribunal – see section 9(1) and Law Society of England and Wales v Otobo [2011] EWHC 2264 (Ch) at [17].

14. The ET is, however, generally regarded as being an inferior court. Thus such tribunals have been treated as an "inferior court" for the purposes of s. 42 of the Senior Courts Act 1983 and for the purposes of making committal orders under RSC Order 52– see Otobo at [33].

The jurisdictional issue

15. This was an issue considered with care by Proudman J in the Otobo case and, whilst that decision is not binding upon me, I consider its reasoning and conclusion to be highly persuasive. I recognise, however, that Mr Otobo was not represented in that case and that many of the arguments raised by Mrs Harrold before me were not considered.

16. Proudman J identified four principles of particular relevance, which she derived from Sir Jack Jacob's article in [1970] Current Legal Problems 23: "The Inherent Jurisdiction of the Court", namely:

(1) "As a matter of principle the general jurisdiction of the High Court is unlimited save insofar as it has been taken away by statute".

(2) "The inherent jurisdiction derives historically from coercion, that is to say punishment for contempt of court and of its process, and regulation, that is to say regulating the practice of the court and preventing abuse of its process".

(3) "Under its inherent jurisdiction the High Court has the power, not to review the decisions of inferior courts, but (1) to prevent interference with the due course of justice in those courts and (2) to assist them so that they may administer justice fully and effectively".

(4) "The powers of the court under the inherent jurisdiction are complementary to its powers under the Rules and are not replaced by them".

17. Proudman J noted that pursuant to its inherent jurisdiction the High Court had or had had jurisdiction to punish contempts in an inferior court – R v Parke [1903] 2 KB 432 - and to restrain a party from continuing foreign proceedings over which it had no direct jurisdiction so as to protect the other party in proceedings, including proceedings in the ET – Turner v Grovit [1999] IRLR 638 (CA). She considered that it was consistent with these examples of the High Court's inherent jurisdiction and the four principles she had identified for the High Court to have the power to make a CRO relating to proceedings in an inferior court, such as the ET, in circumstances where that court had no jurisdiction to do so of its own.

18. Mrs Harrold's counsel, Ms Darwin, criticised Proudman J's reliance on Sir Jack Jacob's article and contended that it was out of date. However, subsequent developments in the law do not undermine the value of his historical survey of the High Court's inherent jurisdiction. In Ebert v Venvil [2000] Ch 484 at 496G-H, the Court of Appeal referred to and relied upon the article which it found to be of "considerable assistance". More recently, in Al Rawi v Security Service [2012], Lord Dyson at [18] quoted from the article with approval and described it as "seminal".

19. Of particular relevance to the issue raised in the present case is Sir Jack Jacob's analysis of the High Court's "Control over Powers of Inferior Courts and Tribunals" at p48-9 where he states as follows:

"The control and superintendence of the High Court over inferior courts stems, at any rate in part, from the jurisdiction of the Court of King's Bench in matters of contempt of court. Under its inherent jurisdiction, the High Court has power by summary process to prevent any person from interfering with the due courts of justice in any inferior court and to punish any such misconduct as a contempt of court, i.e., of the High Court . The basis for the exercise of this jurisdiction is that the inferior courts have not the power to protect themselves.

But the High court also has power under its inherent jurisdiction to render assistance to inferior courts to enable them to administer justice fully and effectively, e.g., by the issue of a sub-poena to attend and give evidence, and to exercise general superintendence over the proceedings of inferior courts, e.g., to admit to bail..."

20. There is clearly a need for inferior courts to be protected from vexatious proceedings, just as there is for the High Court to be so protected, as reflected in the development of CROs and explained by the Court of Appeal in Bhamjee v Forsdick. As is common ground, an inferior court, such as the ET, has no power itself to make a CRO or equivalent order. It is entirely consistent with the High Court's jurisdiction in matters of contempt for it to be able to make orders to protect the inferior courts in such circumstances. It can be regarded as another example of the High Court's power "to prevent any person from interfering with the due course of justice in any inferior court".

21. That the High Court's supervisory jurisdiction in relation to inferior courts extends to the grant of CROs is supported by the decision of the Court of Appeal in Ebert v Venvil. One of the issues in that case was whether the High Court has power to make a CRO not merely in relation to proceedings in the High Court but also in relation to proceedings in the County Court. It was held that it did. As Lord Woolf MR stated at p498B-D:

"The High Court has traditionally exercised a supervisory jurisdiction in relation to the county court and although that jurisdiction is normally exercised over the county court by means of judicial review this does not mean that it is the only way the jurisdiction can be exercised. It could for example properly be exercised by the granting of an injunction or by the sort of orders made by Neuberger J. If authority was needed for this it is provided by In re Connolly Brothers Ltd. [1911] 1 Ch. 731 . In that case the proceedings which were restrained were in the Lancaster Palatine Court and not a county court. In addition the proceedings had already been commenced when they were restrained. Furthermore the injunction would be enforceable against the individual and not the court. None the less these distinctions do not alter the principle involved. The county court will give effect to the High Court order in the same way as it would give effect to an order made by a county court judge. We still have a High Court and county courts with separate but overlapping jurisdictions. However both courts are part of the same civil justice system."

22. Whilst the ET and similar tribunals are not part of the civil justice system in the same way as a County Court, as inferior courts they are still part of that system and of an inter-related jurisdiction.

23. It is also to be noted that there are a number of cases in which the court has assumed that it had a power to make a CRO or like order in relation to tribunal proceedings – see, for example, Cavannah v Borough of Blackburn (Court of Appeal, 23 November 2000, unreported) at [10]; Enfield London Borough Council v Sivanandan [2006] EWCA Civ 888 at [5]; Daniels v British Broadcasting Corporation [2010] EWHC 3057 (QB); Chorion plc and others v Lane (unreported, 24 February 1999).

24. The main arguments raised on behalf of Mrs Harrold as to why the High Court has no such power or jurisdiction were as follows:

(1) The High Court's supervisory jurisdiction over inferior courts and tribunals is statutory and there is no statutory power to make a CRO relating to proceedings in the ET.

(2) There are limits to the High Court's inherent jurisdiction and the modern approach is to the exercise of such jurisdiction is a circumspect one.

(3) The High Court's inherent jurisdiction cannot be used in a way which is contrary to or inconsistent with the CPR.

25. As to (1), particular reliance was placed upon Bremer Vulkan Schiffbau und Machinenfabrik v South India Shipping Corp Ltd [1981] AC 909 and Lord Diplock's statement at p977 that:

'The supervisory jurisdiction that the High Court exercises over the way in which inferior courts and tribunals conduct their proceedings….is not inherent in its character as a court of justice; it is statutory."

26. The Bremer Vulkan case was concerned with whether the High Court has a supervisory jurisdiction over arbitration proceedings analogous to that which it has over inferior courts or tribunals. It was held that it did not and the differences between bodies upon which statutory powers and duties have been conferred and consensual arbitration proceedings were emphasised. The decision affirms, however, that there is such a supervisory jurisdiction over inferior courts and tribunals. In relation to the passage cited above, Lord Diplock made it clear that the statutory basis established by the Supreme Court of Judicature Act 1873 included such jurisdiction as had been exercised by the Court of Queen's Bench up to that time. Sir Jack Jacob's article explains that the Court's inherent jurisdiction, including its supervisory jurisdiction over inferior courts or tribunals relating to matters of contempt, dates "from the earliest of times" – see p25-27. The fact that employment tribunals did not exist at that time is irrelevant. The ET is just a modern example of the type of inferior court or tribunal over which the supervisory jurisdiction has long been exercised.

27. Further, if it was necessary to find a statutory basis for the court's jurisdiction it can arguably be found in the broad terms of s.37 of the Senior Courts Act 1981 under which an injunction may be granted "in all cases in which it appears to the court to be just and convenient to do so", since CROs may be regarded a form of injunctive relief. This is generally recognised as being the basis upon which non-contractual anti-suit injunctions relating to foreign proceedings are now granted – see Turner v Grovit [2002] 1 WLR 107 (HL) per Lord Hoffman at [22].

28. As to (2), it is correct that there are limits to the court's inherent jurisdiction to how civil proceedings should be conducted as the Al Rawi case makes clear – see, in particular, Lord Dyson's judgment at [18] to [22]. However, none of the limitations there discussed are in point in this case.

29. It was submitted that the High Court's jurisdiction is limited because the supervisory jurisdiction which the High Court now has over inferior courts or tribunals is limited to judicial review. However, the supervisory jurisdiction is not so limited, as the passage cited above from Ebert v Venvil makes clear. Contempt orders provide another example. That contempt is now covered by the Contempt of Court Act 1981 does not alter the fact that the power to make contempt orders stemmed from the High Court's inherent jurisdiction, as does the power to make orders for like protective purposes, such as CROs.

30. As to (3), it is correct that the CPR may limit the inherent jurisdiction of the court where there is a conflict between them. This is not, however, a case of conflict. The CPR does not apply to tribunals because a tribunal is not a court for the purposes of the Civil Procedure Act 1977. The CPR therefore cannot and does not purport to apply to tribunal proceedings. In those circumstances its provisions are not inconsistent or in conflict with the exercise of an inherent jurisdiction in relation to such proceedings. No doubt, however, the inherent jurisdiction to make CROs in relation to such proceedings would be exercised consistently with the principles and practices set out in the PD.

31. It was further submitted on behalf of Mrs Harrold that even if the High Court does have inherent jurisdiction to make a CRO relating to proceedings before the CRO, it should not exercise that power given, in particular: (1) the ET's own powers under its Rules; (2) the Attorney General's statutory powers to restrain vexatious tribunal proceedings under s.42 of the Senior Courts Act 1981 and s.33 of the Employment Tribunals Act 1996, and (3) that it would cut across the fundamental principle that discrimination claims are fact sensitive and should not be determined summarily – see Anyanwu v South Bank Student Union (Commission for Racial Equality, interveners [2001] 2 All ER 353 at [24] and Eszias v North Glamorgan NHS Trust [2007] ICR 1126.

32. As to (1), whilst the ET has powers to reject claims under Rule 12, to strike out claims under Rule 37, and to make unless orders (Rule 38), deposit orders (Rule 39) and costs orders, none of these powers can be used to prevent proceedings being brought before the ET and they all involve time and cost being incurred. They are not a substitute for a CRO nor do they satisfactorily address the considerations of justice, convenience and appropriate use of resources which underlie the need to make such orders to restrain vexatious litigants.

33. As to (2), the existence of such powers does not negate the need for CROs, as made clear by the development of Grepe v Loam orders – see generally Bhamjee v Forsdick [2004] 1 WLR 88. As Lord Woolf MR said in Ebert v Venvil at p493E-G:

"It is accepted that the existence of the statutory power has not supplanted the power of the court to make a limited Grepe v. Loam order. They serve to emphasise the importance of the Grepe v. Loam orders only being made when a clear case for making the orders has been established. This is one of the situations where it is accepted that notwithstanding the intervention of Parliament an inherent jurisdiction remains alongside the statutory jurisdiction. This does not mean that intervention of Parliament may not have cut down the inherent jurisdiction of the court. If there was an application for an order of the same width as the statutory jurisdiction, the court could only appropriately deal with such an application under the statutory jurisdiction."

34. This is not a case where an order of the same width as the statutory jurisdiction is being sought.

35. As to (3), this principle is only relevant to cases which are sufficiently arguable to merit consideration on the facts. If they are then permission to bring proceedings will be given. If they are not then the principle is not engaged.

36. In summary, I do not accept that any of Mrs Harrold's arguments establish that the High Court does not have inherent jurisdiction to make a CRO in relation to proceedings before the ET or that the Otobo case should not be followed. On the contrary, for all the reasons outlined above, I conclude that it should be followed. If the High Court does have such jurisdiction, I also do not accept that as a universal or general rule it should not exercise that power in relation to ET proceedings. Whether or not it should do so will depend on the facts of the particular case.

Conclusion

37. Having carefully considered the parties' submissions and the numerous authorities to which I have been referred I am satisfied that the High Court does have inherent jurisdiction to make a CRO covering proceedings before the ET. Whether or not it is appropriate to do so in this case will involve a detailed consideration of the facts.