London Underground Ltd v Mighton

The High Court may use its inherent jurisdiction to restrain abusive litigation in the Employment Tribunal and Employment Appeal Tribunal, although those bodies have no equivalent power. A general civil restraint order is justified where the applicant establishes persistent claims or applications that are totally without merit, a continuing objective risk of abuse, and the inadequacy of an extended order. The court must select the least restrictive order that is necessary and proportionate. A general order operates as a permission filter rather than an absolute bar. Repeated attempts to re-litigate decided employment disputes, especially where claims are out of time or fall outside tribunal jurisdiction, may satisfy the threshold. The order may extend to proceedings in the High Court, County Court, Employment Tribunal and Employment Appeal Tribunal.

London Underground Limited applied under Part 8 of the Civil Procedure Rules for a general civil restraint order against its former employee, Roger Mighton. He had issued ten Employment Tribunal claims concerning his dismissal and treatment at work. Earlier claims had been dismissed after substantive hearings or struck out as repetitive, out of time, abusive or lacking reasonable prospects of success. Several appeals had been certified as totally without merit.

The application raised whether the High Court could restrain proceedings in the Employment Tribunal and Employment Appeal Tribunal, whether the threshold for a general civil restraint order was met, and whether an extended order would provide sufficient protection.

1. Power and applicable principles. The High Court possesses an inherent power to make a civil restraint order in relation to Employment Tribunal and Employment Appeal Tribunal proceedings. Nursing and Midwifery Council v Harrold [2015] EWHC 2254 (QB) confirmed that conclusion. CPR 3.11 and Practice Direction 3CPD3 were applied by analogy.
2. Threshold. The relevant questions were whether the respondent had persistently issued claims or applications that were totally without merit, whether there was an objective risk of further abuse, and what order was just and proportionate. Persistence required more than habitual litigation and involved an irrational refusal to accept adverse decisions, as explained in Bhamjee v Forsdick [2004] 1 WLR 88. The court accepted that six EAT appeals and one Court of Appeal application had been conclusively certified as totally without merit. The further Employment Tribunal claims and reconsideration applications were independently bound to fail because they repeated decided matters, raised matters that should previously have been brought, or were out of time.
3. Meaning of totally without merit. A claim or application may be certified as totally without merit only where it is bound to fail: Sartipy v Tigris Industries Inc [2019] EWCA Civ 225. Existing findings were binding unless successfully appealed. Where no express certification had been made, the court could assess the earlier litigation itself on the facts available, following Nursing and Midwifery Council v Harrold (No 2) [2016] EWHC 1078 (QB).
4. Choice of order and proportionality. An extended order was insufficient because the respondent’s claims had become increasingly scattergun, involved numerous tangential individual respondents and issues, and would generate satellite disputes about the order’s scope. A general order was therefore necessary to protect parties and the finite resources of the tribunals. Following Chief Constable of Avon and Somerset Constabulary v Gray [2019] EWHC 1954 (QB), the order was treated as a permission filter. It interfered with access to justice only to the extent necessary and proportionate to protect against vexatious abuse.
5. Order. A general civil restraint order was made for two years, restraining the respondent from issuing claims or making applications in the Employment Tribunal, Employment Appeal Tribunal, County Court or High Court without permission of the specified judge. It included the pending tenth Employment Tribunal claim. No order for costs was made.