P Williamson v The Bishop of London & Ors

A civil proceedings order under Senior Courts Act 1981, section 42(1A), imposes a substantive condition precedent to commencing proceedings. A person subject to such an order cannot institute proceedings in any court or tribunal without first obtaining leave of the High Court.

Proceedings purportedly commenced without prior leave are a nullity. Tribunal procedural powers to stay, strike out or dismiss a claim cannot cure that defect, because they presuppose validly instituted proceedings. Retrospective leave cannot attach to proceedings that are null.

An Employment Appeal Tribunal will ordinarily follow a persuasive High Court decision unless a recognised exception justifies departure. None applied here.

The claimant, who was subject to a civil proceedings order, presented an Employment Tribunal claim alleging age discrimination without first obtaining leave of the High Court. After the respondents raised the order, a Deputy High Court Judge made an order granting permission to pursue the existing claim and, in the alternative, permission to issue proceedings concerning the termination of the claimant’s tenure.

The Watford Employment Tribunal held that the original claim was a nullity, following Her Majesty’s Attorney General v Edwards [2015] EWHC 1653 Admin. It also construed the two forms of permission as alternatives. The claimant appealed, contending that Edwards should not be followed and that the High Court order validated the existing proceedings.

1. Appeal dismissed. The Employment Tribunal correctly held that the claim, having been presented by a person subject to a civil proceedings order without prior High Court leave, was null and void.

2. Section 42(1A) of the Senior Courts Act 1981 does more than impose a procedural requirement. Its language, that no civil proceedings shall be instituted without leave, creates a substantive jurisdictional barrier. The requirement attaches to the litigant, rather than to the particular claim. Accordingly, a claim that otherwise satisfies rule 8 of the Employment Tribunal Rules cannot be instituted until leave has first been obtained.

3. The EAT was not bound by the High Court decision in Her Majesty’s Attorney General v Edwards [2015] EWHC 1653 Admin, but it was persuasive authority which should ordinarily be followed under Lock v British Gas Trading Ltd (No 2) [2016] IRLR 316 EAT. It was neither per incuriam nor manifestly wrong, and no exceptional circumstances justified departure. It was also correct on the statutory language and purpose.

4. The statutory purpose is to protect prospective defendants and judicial resources from vexatious litigation. Allowing an Employment Tribunal to stay, strike out or dismiss an unauthorised claim would engage the very resources which the civil proceedings order is intended to protect. The High Court permission process remains a filter, rather than an absolute bar, because leave may be sought before proceedings are instituted.

5. In any event, the Pittaway Order gave alternative forms of permission. Read in the context of the application, paragraph 2 permitted a fresh claim concerning the same matter; it did not authorise both continuation of the invalid existing claim and a further claim.

6. The President added that, if the claimant had not obtained High Court leave before instituting the EAT appeal, that appeal too would be a nullity.

• Employment Appeal Tribunal: appeal dismissed: [2022] EAT 118 .
• Watford Employment Tribunal: on 8 January 2020, held that the claim presented without prior High Court leave under the civil proceedings order was a nullity.