The Attorney General v Dr Christian Mallon

A restriction of proceedings order under Employment Tribunals Act 1996, section 33, may be made where a person has habitually and persistently instituted vexatious proceedings without reasonable ground. The assessment may rely upon final findings in earlier proceedings and must consider the cumulative burden imposed on respondents and the tribunal system.

Vexatiousness turns on the proceedings’ effect and their lack of proper foundation, rather than the litigant’s asserted good faith. An order is a filter, not a bar: meritorious proceedings may proceed with leave. It is therefore compatible with Article 6 where it pursues the legitimate aim of preventing abuse and is proportionate. Whether an order should be time-limited is a fact-sensitive discretionary decision; an indefinite order may be proportionate where there is no reliable prospect that the conduct will cease.

The Attorney General applied to the Employment Appeal Tribunal for a restriction of proceedings order against Dr Christian Mallon under section 33 of the Employment Tribunals Act 1996.

Dr Mallon had brought numerous employment tribunal claims, principally alleging disability discrimination arising from job applications. The Tribunal reviewed an agreed chronology and underlying decisions. Most claims had failed, been withdrawn, struck out, or led to deposit or costs orders. One claim against Aecom Ltd had achieved limited success and remained unresolved in part.

Dr Mallon contended that his disabilities and good faith explained his conduct. He proposed a voluntary, time-limited pre-issue filter as an alternative to an order. The central issues were whether his proceedings met the statutory description of habitual, persistent and groundless vexatious proceedings, and whether an indefinite statutory filter was proportionate and compatible with Article 6.

1. Application granted. The Tribunal made a restriction of proceedings order against Dr Mallon under section 33 of the Employment Tribunals Act 1996. The order was to remain in force indefinitely.

2. The statutory question was whether he had habitually and persistently, and without reasonable ground, instituted vexatious proceedings. The Tribunal was entitled to treat the unappealed or extant findings in earlier proceedings as reliable evidence. Those findings showed a long-running pattern of claims that lacked merit, were withdrawn, were struck out, or resulted in costs or deposit orders.

3. Dr Mallon’s disabilities had been considered in the earlier decisions and did not explain or justify the pattern. His stated good faith was not determinative. Vexatiousness depends upon the effect of groundless proceedings, including the disproportionate inconvenience, harassment and expense imposed on respondents and the misuse of tribunal resources. The Tribunal found that the pattern continued despite clear warnings and reasoned decisions, and that there was no reason to expect it to stop without an order.

4. An RPO was necessary and proportionate. It is a filter requiring the Appeal Tribunal to be satisfied that proposed proceedings are not abusive and have reasonable grounds. It does not prevent a properly founded claim from proceeding with leave. Accordingly, it pursued legitimate aims, protected potential respondents and the tribunal system, and did not impair the essence of the Article 6 right of access to a court.

5. The proposed voluntary mechanism was less suitable than the statutory procedure. Although section 33(3) permits a specified duration, the Tribunal found no sign of lasting change and no reason to expect the stream of claims to abate. An indefinite order was therefore appropriate and proportionate.

This was an original application to the Employment Appeal Tribunal under section 33 of the Employment Tribunals Act 1996, not an appeal from a decision in this litigation.