HM Attorney General v Edwards & Anor

Proceedings commenced by a person subject to a civil proceedings order, without first obtaining the leave required by Senior Courts Act 1981, are a nullity. Section 42(3) permits leave to continue proceedings instituted before the order, but does not permit retrospective leave for proceedings begun in breach of the order. The High Court therefore has no jurisdiction to revive or validate such proceedings retrospectively. A fresh claim requires a new application for leave. An interested party properly served with and participating in an application under section 42 may recover its costs in principle.

Simon Albert Edwards applied under section 42 of the Senior Courts Act 1981 for leave in relation to Employment Tribunal proceedings against his former employer, Brecker Grossmith Ltd. He had commenced the proceedings without first obtaining the leave required by a civil restraint order made in 2010. The Employment Tribunal proceedings had been stayed pending determination of whether the High Court could grant leave retrospectively or permit their continuation. The central issue was whether section 42 authorised such relief where proceedings had been commenced without prior leave.

1. Jurisdiction. The application was refused for want of jurisdiction. Section 42(3) refers to leave for the continuance of proceedings instituted before the making of the civil proceedings order. It does not extend to proceedings instituted afterwards without the required leave.
2. Effect of proceedings begun without leave. The reasoning of the House of Lords in Seal v Chief Constable of South Wales Police [2007] UKHL 31 was binding and established that proceedings commenced without required leave are a nullity. There was consequently nothing to which retrospective leave could attach. The same conclusion applied to the Employment Tribunal proceedings.
3. Johnson v Valks. The unreported Court of Appeal decision was distinguishable. It concerned validly instituted proceedings and a second permission requirement for an appeal, not proceedings that were void because they had been commenced without leave. Its procedural solution was also reached in circumstances that materially limited its authority.
4. Mr Edwards remained free to apply for leave to commence fresh proceedings concerning the alleged deduction from wages, whether in the Employment Tribunal or another forum. The court declined to determine any speculative fresh application.
5. Costs. The interested party was entitled in principle to its costs of the application. Relying on Ewing v News International Limited & Others, the court summarily assessed those costs at £4,000.

Not stated in the judgment.