Attorney General v Vaidya

Under section 42 of the Senior Courts Act 1981, a civil proceedings order requires proof that the respondent has acted habitually, persistently and without reasonable grounds. These requirements are cumulative. The court examines only proceedings capable of satisfying the statutory test; successful proceedings are not relied upon, but success elsewhere is not a sufficient answer if the remaining conduct meets the test. The jurisdiction is draconian and must be exercised carefully, but it protects court and tribunal resources and other litigants from vexatious conduct. A section 42 order may operate as a filter rather than extinguishing pending or future claims. Where such an order is made, it is appropriate to prohibit the litigant from acting as a representative or McKenzie friend without permission.

The Attorney General applied under section 42 of the Senior Courts Act 1981 for an order restricting Dr Vaidya from instituting proceedings or making applications in civil courts and tribunals, including the Employment Tribunal and Employment Appeal Tribunal. The Attorney General also sought to prevent him from acting as a representative or McKenzie friend.

The application relied on the history of Dr Vaidya’s litigation, including numerous unsuccessful proceedings and applications certified as totally without merit. Dr Vaidya relied on his occasional successes, challenged the merits and jurisdictional basis of earlier decisions, invoked human rights considerations, and opposed restrictions on representing others. The central issues were whether the statutory conditions were met and whether the order should extend to representative activity.

1. The court made a civil proceedings order under section 42 of the Senior Courts Act 1981. It was satisfied that Dr Vaidya had habitually and persistently, and without reasonable grounds, instituted vexatious civil proceedings and made vexatious applications, including in Employment Tribunal proceedings.

2. The statutory words are cumulative. All three requirements—habitual conduct, persistent conduct and absence of reasonable grounds—must be established before an order can be made. The jurisdiction is draconian and must be exercised with care.

3. Successful proceedings or applications cannot themselves be relied upon as evidence satisfying section 42. However, the jurisdiction is not determined by a success rate. If the remaining proceedings establish the statutory conditions, occasional success does not provide an answer.

4. The court will not generally reopen the correctness or merits of earlier decisions, or go behind certifications that proceedings were totally without merit. The qualification is that a change in the law, or recognition that the previous understanding of the law was erroneous, may require the earlier proceedings to be viewed differently. Michalak v General Medical Council illustrated that qualification in relation to employment tribunal jurisdiction.

5. A section 42 order does not extinguish continuing or prospective litigation. It subjects it to a permission filter. The jurisdiction protects scarce court and tribunal time, meritorious litigants, and parties exposed to repeated vexatious applications. The cumulative effect of the litigant’s activities is relevant.

6. Proceedings in the Employment Tribunal and Employment Appeal Tribunal fall within the section 42 jurisdiction. The court also held that the order should prohibit Dr Vaidya from acting as a representative or McKenzie friend in any court or tribunal without leave. The case for restricting representative activity was stronger than the case for restricting a person’s own litigation.