The Reverend Paul Williamson v The Bishop of London & Ors

Leave of the High Court under section 42 of the Senior Courts Act 1981 is a jurisdictional condition precedent to proceedings brought by a person subject to a civil proceedings order. Proceedings instituted without that leave are a nullity and cannot be retrospectively validated.

This construction follows the statutory purpose. A civil proceedings order is a filter which protects respondents and judicial resources from habitual, persistent and groundless litigation. It would fail if proceedings could be commenced first and validated later. The restriction is proportionate because it regulates, rather than removes, access to the court and permits an urgent application for leave where necessary.

The appellant was subject to a civil proceedings order made in 1997. In April 2019 he presented an employment tribunal claim alleging age discrimination without first obtaining High Court leave. The tribunal held that the claim was a nullity. The appellant later obtained an order which permitted him to pursue the existing claim only if it was legally effective, or alternatively to issue a fresh claim.

The Employment Appeal Tribunal dismissed his appeal in [2022] EAT 118. The fresh claim was subsequently dismissed as out of time. The appeal concerned whether section 42 of the Senior Courts Act 1981 creates a jurisdictional bar or a procedural defect capable of cure when proceedings are instituted without the required leave.

1. Appeal dismissed unanimously. Leave under section 42 of the Senior Courts Act 1981 is a jurisdictional condition precedent. The employment tribunal claim, instituted while the appellant was subject to a civil proceedings order and without prior leave, was and remained a nullity.

2. The statutory language indicated that leave was required before proceedings could be instituted. Section 42(1A)(b) permits leave to continue proceedings instituted before the order, but does not provide for retrospective leave to validate proceedings commenced after the order without permission.

3. Statutory language was not decisive in isolation. Applying the purposive approach adopted in [2007] UKHL 31, the court held that the relevant purpose was to protect prospective respondents and court resources from litigation by a person already found habitually, persistently and without reasonable ground to have brought vexatious proceedings. The statutory filter works only if the litigant must obtain leave before others have to respond.

4. The restriction was proportionate. A civil proceedings order regulates access to justice rather than barring it. The subject knows of the order, may seek leave urgently where appropriate, and a timely application for leave may be relevant to an extension of time for a fresh claim.

5. The Employment Tribunal Rules could not displace the statutory restriction. Nor did the treatment of civil restraint orders, insolvency proceedings, or charity proceedings assist: those regimes have different statutory wording, purposes and consequences. The court therefore upheld the tribunal and the Employment Appeal Tribunal.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the conclusion that the 2019 employment tribunal claim was a nullity: [2023] EWCA Civ 379.
• Employment Appeal Tribunal: dismissed the appellant’s appeal from the tribunal’s jurisdictional ruling: [2022] EAT 118.
• Employment Tribunal: held on 8 January 2020 that the claim presented without High Court leave required by the civil proceedings order was a nullity.