Solicitors Regulation Authority Ltd & Ors v Zakir Khan

A High Court may make a civil restraint order protecting the processes of the Employment Tribunal and Employment Appeal Tribunal, although those tribunals have no equivalent power. The court should apply the Civil Procedure Rules by analogy.

The court must ask whether the litigant has persistently issued claims or made applications that are totally without merit, whether there is an objective risk of further abusive litigation, and what is the least restrictive proportionate order. Previous findings that claims were totally without merit are conclusive unless overturned. A restraint may be confined to a defined category of proceedings and need not restrict reconsideration applications in existing cases.

The claimants, including the Solicitors Regulation Authority and several government departments, applied for a general or extended civil restraint order restraining Mr Khan from issuing employment claims or appeals concerning job applications without permission. Mr Khan sought strike-out of that application and various declarations, damages and orders challenging decisions of the Employment Tribunal and Employment Appeal Tribunal.

The claimants relied on his extensive history of employment litigation, including five express findings that claims were totally without merit. The central issues were whether the threshold for a civil restraint order was met, whether further abusive litigation was objectively likely, and what form of order was proportionate.

1. Defendant’s Application. The application to strike out the claimants’ application was dismissed. The claim disclosed reasonable grounds and was not an abuse of process. A civil restraint application is a legitimate means of moderating, rather than preventing, access to justice. The defendant’s proposed challenge to Employment Tribunal and Employment Appeal Tribunal decisions could not be brought in the High Court. Such challenges lie by reconsideration in the tribunal or by appeal on a question of law to the Employment Appeal Tribunal under section 21(1) of the Employment Tribunals Act 1996. Any further appeal lies to the Court of Appeal with permission. The remaining miscellaneous relief was incoherent and procedurally defective, and the Defendant’s Application was recorded as totally without merit.
2. Threshold. The court applied the three-stage approach in Nowak v The Nursing and Midwifery Council: whether there had been persistent totally without merit litigation; whether further abusive litigation was objectively likely; and what order was just and proportionate. Five contemporaneous Employment Tribunal findings were conclusive because they had not been appealed or set aside. The court also found one further claim and one reconsideration application totally without merit. The minimum threshold of three was therefore exceeded.
3. A claim or application is totally without merit where it is bound to fail. Persistence may be established by repeated meritless litigation over time, particularly where issues are repeatedly re-litigated. The court must have sufficient information about earlier proceedings before making a retrospective finding. It declined to characterise an Employment Appeal Tribunal appeal and an earlier reconsideration application as totally without merit because the available material was insufficient.
4. Risk and proportionality. There was a significant objective risk of further totally without merit claims or appeals. Relevant matters included the defendant’s sustained litigation, repeated threats to continue, inability to accept decisions, and expressed compulsive determination to obtain what he considered justice. His stated intention not to issue new claims did not reliably reduce the risk. Applying the least-restrictive-order principle, the court granted an extended civil restraint order for three years. It was limited to new Employment Tribunal claims and Employment Appeal Tribunal appeals arising from job application processes. Requests for reconsideration in existing Employment Tribunal claims remained unrestricted.
5. The precise terms of the order were reserved for consideration at the handing-down hearing.