Nursing and Midwifery Council v Harrold

The High Court may use its inherent jurisdiction to restrain abusive litigation in the Employment Tribunal, county court and High Court by a civil restraint order. The jurisdiction protects the courts’ processes and the public interest in preventing court resources and parties’ resources being wasted on claims which are totally without merit. The applicant’s general conduct does not ordinarily deprive the court of that power. The court must nevertheless decide whether the respondent has persistently issued claims or made applications which are totally without merit and whether an order is proportionate. A general civil restraint order is appropriate where an extended order would not sufficiently protect the courts or parties, particularly where the litigant adopts a broad or scattergun approach across different grievances and forums.

The Nursing and Midwifery Council and North Bristol NHS Trust applied under Part 8 for a general civil restraint order against Mrs Harrold. She had brought numerous claims and applications over several years in the Employment Tribunal, county court and High Court, many concerning her dismissal, the Trust’s referral of her to the NMC, the NMC’s decision to strike her from its register, and related evidence and procedural matters.

The application followed an earlier High Court decision in the same proceedings that the High Court could restrain proceedings in the Employment Tribunal. The central questions were whether Mrs Harrold had persistently pursued claims or applications which were totally without merit, whether the claimants’ conduct prevented relief, and what form and duration of order were proportionate.

1. Jurisdiction. The inherent jurisdiction of the High Court to protect its own process, and that of inferior courts, from abuse extends to restraining proceedings in the Employment Tribunal. The jurisdiction is consistent with the statutory and rules-based civil restraint order regime. The authorities concerning the inherent jurisdiction and civil restraint orders, including Law Society v Otobo, [2011] EWHC 2264 (Ch), were followed.
2. Applicant’s conduct. A civil restraint order is directed principally to the public interest in protecting judicial and litigant resources. The general conduct of an applicant therefore does not, as a matter of principle, deprive the court of power to make an order. Such conduct may be relevant when deciding whether the respondent’s claims are totally without merit, but that is a separate question.
3. Applicable approach. Applying Practice Direction 3C by analogy, the court had to decide for itself, while taking account of the reasoning in earlier decisions, whether the claims and applications were totally without merit. The court adopted, for the purposes of this application and in the defendant’s favour, the formulation that a claim was “bound to fail”, without deciding that this was the legally correct test. The former requirement of vexatiousness was not required under the rules-based regime, consistently with R (Kumar) v Secretary of State for Constitutional Affairs, [2006] EWCA Civ 990.
4. Many later claims and applications were bound to fail because they sought to re-litigate matters already decided, revive withdrawn allegations, or were out of time without explanation. The claims against the Trust and NMC showed persistence over several years.
5. Relief and proportionality. The court had a discretion whether to make an order and had to balance interference with access to court against the respondent’s litigation costs, the burden on the claimants, and pressure on tribunal resources. An extended order was unsuitable because the litigation covered broad and shifting themes. A general order was proportionate and was made for two years, restraining claims in the county court, Employment Tribunal and High Court. The order excluded any extant appeal to the Administrative Court concerning the NMC striking-off decision and included the stayed fourteenth and fifteenth Employment Tribunal claims.

First-instance application determined by the High Court. The judgment records earlier Employment Tribunal, Employment Appeal Tribunal, county court and Court of Appeal proceedings concerning the defendant, but those proceedings were not appeals from the present application.