Nursing and Midwifery Council v Harrold  EWHC 1078 (QB)
Application by the Claimants for a civil restraint order to be made against a serial litigator. The application was granted and a GCRO was made to last for 2 years.
The Defendant in these proceedings had brought 15 applications against the Claimants in the last few years. The court had to decide if they were totally without merit (TWM) and if so, whether it would be appropriate to impose a civil restraint order on the Defendant to prevent her from bringing more claims relating to the same proceedings.
The court made the order. First it had to consider whether, even if it found that the Defendant had persistently made claims or applications which were TWM, it was proportionate to make a CRO. As against the interference with her right to bring claims, the court balanced the cost to the Defendant of having brought and lost so many such claims so far and took into account the costs to the Respondents of having to fight such claims, the strain on the resources of the ET in having to deal with such claims, and the implications for other ET litigants of such strain. The Defendant's status as a litigant in person was irrelevant. The courts needed to be protected from TWM claims brought by litigants in person. The court made a GCRO which restrains the Defendant from bringing claims against the Claimants in the county court, the ET and the High Court and, given the long history, the court considered that the GCRO should last, in the first instance, for the maximum possible period, i.e. two years.
Case No's: HQ14X05426 AND HQ14X05427
Neutral Citation Number:  EWHC 1078 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
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NURSING AND MIDWIFERY COUNCIL (Claimant)
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MRS A M HARROLD (Defendant)
NORTH BRISTOL NHS TRUST (Claimant)
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MRS A M HARROLD (Defendant)
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Mr Adam Solomon (instructed by DAC Beachcroft and Fieldfisher) for the Claimants
Ms Daniella Gilbert (direct access) for the Defendant
Hearing dates: 6 – 7 April 2016
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Mrs Justice Elisabeth Laing DBE:
- This is an application by the Claimants for a general civil restraint order ('GCRO') against the Defendant. It is made pursuant to a Part 8 claim. The Defendant is black. She was employed by the First Claimant ('the Trust') as a Grade E nurse, until her dismissal in December 2005. She had been signed off sick, however, since June 2004. Over two years after she last worked at the Trust, the Trust referred her to her professional body, the Second Claimant ('the NMC'). After a hearing which the Defendant did not attend, she was struck off the NMC's register. She appealed against that decision. No steps have been taken in relation to that appeal for some time. A hearing will be listed in due course in that appeal, in order for the court to decide, whether, as the NMC argues, the Defendant has abandoned that appeal, or whether it is still extant. The Defendant has issued a counterclaim in this case. I heard no argument about it, but the Claimants asked me to note that in it she indicates her intention to challenge her dismissal (in 2005) in the High Court.
- She has brought a series of claims against the Claimants, mostly in the Employment Tribunal ('the ET'). The Claimants' case is that most of those claims were totally without merit ('TWM'), and that the Defendant should be restrained from making any further claims against them in the ET, the county court or the High Court. Hamblen J (as he then was) has decided, in a previous hearing in this claim, that the High Court has power to make a civil restraint order restraining proceedings in the ET ( EWHC 2254 (QB);  IRLR 30).
- Many of the facts have been found by the ET. Those findings bind the parties. I will summarise them as briefly as I can, to the extent that it is necessary in order to decide whether or not to make the order the Claimants ask for. Unless I indicate otherwise, the claims I will refer to are claims brought in the ET.
- The Claimants were represented by Mr Solomon and the Defendant by Miss Gilbert. I thank both counsel for their written and oral arguments.
- At the start of the hearing, Miss Gilbert applied for relief from sanctions. The Defendant was late with her acknowledgement of the service of the Part 8 claim as respects one of the Claimants, and her four witness statements were late. Miss Gilbert needed the court's permission to make any oral submissions and to rely on the late evidence. I was referred to Denton v White  EWCA Civ 906;  4 Costs LR 752.
- Mr Solomon's position on the former was neutral, but he objected to the application to rely on the late evidence if the evidence was to be used to bolster an argument of which he only had notice when he received Miss Gilbert's skeleton argument shortly before the hearing. I have decided to grant relief from sanctions in relation to both defaults. I do not consider that that the Claimants have been misled or prejudiced by the late acknowledgement of service. In any event, the relief they are seeking is a significant interference with the Defendant's otherwise free access to the court. In that situation, I consider that it is only fair to the Defendant to enable her case to be argued by counsel. I have also decided to permit the Defendant to rely on the late evidence. For reasons which will become clear, it does not greatly help the Defendant's case in any event.
The first, second, and third claims
(i) The ET's decision
- The first ET decision relates to three claims which the Defendant brought against the Trust for direct discrimination, victimisation and unfair dismissal. The first ET dismissed those claims in a decision sent to the parties on 22 March 2006. It made material findings which I now summarise. The Defendant's employment started in 2001. She was an experienced nurse, but her attitude and manner could cause difficulty in the working of a team. Those were not caused by problems she had at work, though such problems might have contributed to them. The ET noted that during the hearing the Defendant was unwilling to listen to or to accept direction or guidance. Two other members of staff, Sharon Clark and Sandra Elkins, were also difficult to work with. Both could be critical and negative, and would, together, make life uncomfortable for colleagues they had taken against.
- The ET considered a harassment complaint relating to an incident in July 2002 when Ms Clarke and another reported to SR Greaves that the Defendant had hung up and spiked a unit of blood without ensuring the blood had been checked by two nurses. SR Greaves spoke to the Defendant about it. She took notes. Later that day the Defendant complained about Ms Clark and Ms Elkins. The ET found that SR Greaves suggested an informal meeting to sort this out, and that the Defendant declined this offer, welcoming instead the suggestion that Ms Burt, the Head of Nursing, deal with the Defendant's complaint. As a result, SR Greaves reported the Defendant's complaint to Ms Burt, and she investigated it. The ET found that Ms Burt complied with the Trust's harassment procedure, by dealing with the complaint informally. Ms Burt decided that there had been no harassment, but that there were personality difficulties. The ET accepted that Ms Burt's action plan was directed to issues identified in discussion with each member of staff. The Defendant was not happy with the outcome. She complained that she had been downgraded because her name had been moved down the staff rota. The ET found that she had not, but that her name had been moved down the list to reflect her own request not to be 'in charge' of the unit. Ms Burt started a further investigation. She interviewed staff, using questions prepared by the Defendant and her union representative. Two nurses provided further statements which were not disclosed to the Defendant at the time. The ET found that there was nothing sinister in that.
- The ET found that Pat Doman's complaint about Ms Elkins was resolved by an informal meeting because that is what Ms Doman agreed to. The ET found that Ms Doman's complaint of harassment was not upheld. The ET found that Ms Burt's conclusion that all parties were at fault was reasonable and fair. She suggested external mediation between the Defendant, Ms Elkins and Ms Clark. The Defendant did not accept this. She felt that Ms Clark was fabricating incidents in order to make difficulties for her. She did not co-operate with Ms Burt's action plan. Ms Burt decided, in response to suggestions from the Defendant's union, that a ward sister should monitor what was happening. The ET held that that was appropriate. In April 2003, the Defendant initiated a formal grievance about these issues. Her case was that the outcome of the investigation was a cover up to protect Ms Clark and Ms Elkins, and was because she was black and they were white. This was the first time the Defendant referred to her race.
- The ET made findings about the six incidents which the Defendant relied on in her grievance as acts of victimisation. In short, the ET rejected the Defendant's claims about those incidents. They could not amount to victimisation contrary to statute because they happened before the Defendant raised the issue of her race. The ET considered them in order to see if they could be grounds for drawing an inference of discrimination.
- The Defendant pursued her grievance through three stages. The ET considered those in detail (Judgment, paragraphs 6.24-6.27). The ET also made findings about performance issues (ibid, paragraphs 6.28-6.39). In relation to one of SR Greaves' concerns, the ET found it 'significant that the [Defendant] was not prepared to accept the clinical judgment of a ward sister and to agree that faced with similar circumstances she would recirculate'. SR Greaves told Ms Burt that she had concerns about the Defendant's competence. The Defendant did not accept the concerns which SR Greaves raised with her. The ET said 'There is no doubt that the [Defendant] was a very difficult person to manage.' SR Greaves was also concerned about the atmosphere in the unit. The ET found that two emails she sent to managers reflected her genuine concerns. When the Defendant found out about them in 2005, she claimed that they amounted to victimisation of her. The ET found that the managers dealing with the grievance did not know about these emails. The ET found that the grievance investigations were fair and thorough.
- In January 2004, SR Greaves invited the Defendant to a meeting to discuss work issues. The Defendant's response was defensive, so SR Greaves arranged for her own union representative to attend the meeting. The Defendant arrived without a representative, and left immediately she saw Ms Greaves' representative. Ms Burt then made several attempts to set up a meeting with the Defendant to discuss performance issues. The Defendant would not attend. Her position was that there were no such issues. She went off on sick leave on 16 June 2004. She did not return before she was dismissed on 20 December 2005.
- On 31 August 2014, the Defendant sent letters to patients at the unit she worked in about the problems she had had with SR Greaves and the victimisation she said SR Greaves was causing her to suffer. The ET said that this was 'an act singularly lacking in professionalism'. It led to disciplinary action. The ET found that Ms Burt had already warned the Defendant that such action would be a breach of the NMC's code of conduct. The ET referred in this context to a document at p 277 of their bundle. No further action was taken because the Defendant did not go to any disciplinary meetings arranged between September 2004 and February 2005. The ET felt that the Trust could have held the meetings in the Defendant's absence. The Defendant complained to the NMC that SR Greaves should be struck off the register. The NMC found there was no case to answer. The Defendant tried to appeal that decision but was told it attracted no right of appeal.
- The Defendant made further allegations of victimisation arising from the Trust's refusal fully to accede to her request for flexible hours. The ET found that she was not treated less favourably in relation to this issue than three other members of staff.
- The Defendant made it clear once she was off sick that she did not want to return to the unit. The Trust made significant efforts to redeploy the Defendant, but she did not accept the Trust's proposals. The Defendant then asked for a severance package, or she would take the Trust to the ET. At a meeting on 22 September 2005, the Defendant was given three months' notice of dismissal. The Trust sent her details of alternative posts in this period. The Defendant's appeal against dismissal failed in January 2006.
- The ET held that none of the complaints amounted to discrimination on grounds of race. The ET held that the Defendant had discharged the burden of proof in relation some of her allegations (see, for example, paragraphs 13, 26 and 29 of the Judgment), but accepted the Trust's explanations. Although the Defendant was unhappy with the outcome of her grievance, the ET held that those responsible for each stage were thorough and fair, and the outcome was reasonable on the evidence.
- The ET also dismissed the victimisation claim. The Defendant's letter of 5 April 2003 was a protected act. Some of the allegations concerned events before that letter was written, and could not therefore support a claim for victimisation. The ET considered events after the letter was written, and decided that they did not constitute acts of victimisation.
- The ET held that the reason for the Defendant's dismissal was her refusal to return to work in the unit and that that was another substantial reason capable of justifying that dismissal pursuant to section 98(2) of the Employment Rights Act 1996. The ET held that Trust followed a fair procedure. It explained its position to the Defendant and invited her several times to meetings to discuss her position. The decision to dismiss also fell within the range of reasonable responses. The Trust 'made every effort to accommodate [the Defendant]' in alternative employment and she would not accept any offer, even on a trial basis. The ET considered that the Trust had no alternative but to dismiss the Defendant and that the dismissal was fair.
(ii) The appeal to the Employment Appeal Tribunal ('the EAT')
- The Defendant appealed. Her appeal was listed for a preliminary hearing pursuant to paragraph 9(7)-(18) of the Employment Appeal Tribunal Practice Direction 2004. She was represented by Mr Wallington of counsel at that hearing, under the ELAAS pro bono scheme. He advanced one argument, which was that the ET should have granted an adjournment on the fifth day of the hearing, in order to enable her to get legal representation, as she was very stressed and felt that she could not continue to represent herself. The EAT summarised the relevant factors at paragraph 9 of its decision. Those included that the costs consequences of an aborted hearing would have been considerable for the Defendant. There was no medical evidence in support of the application. The EAT held that the ET was entitled to refuse the application. The case had been going on for some time, and the Defendant had representation in the past. She had had plenty of time to arrange for representation. Given the wide discretion afforded to the ET, the appeal had no reasonable prospects of success.
(iii) The applications to the Court of Appeal
- The Defendant applied for permission to appeal to the Court of Appeal. That application was refused on the papers by Pill LJ. I infer from the terms of his refusal that the Defendant's skeleton argument, if not her grounds of appeal, sought to make an attack on the substance of the ET's decision ('the applicant cannot expect a re-hearing of the issues of fact in this court') as well as to argue that the refusal to adjourn was wrong. In any event, he held that there was 'no real prospect of establishing an error of law' either in the adjournment decision or in the substance of the decision.
- The Defendant renewed her application to an oral hearing. Wall LJ dismissed that application after a video link hearing on 11 October 2007. He held that there were two insuperable obstacles to an appeal. First, this was a challenge to the exercise of a discretion. The second was that the ET found against the Defendant on the facts. The Defendant argued that the ET's decision was based on perjured evidence about a conversation which she said had never taken place. Wall LJ held that even if this were capable of being established (and it did not look as though it could be), it could not affect the ET's overall conclusions.
- The Defendant wrote a further letter to the Court of Appeal which was received on 19 May 2008. I have not seen that letter. I infer from the Court of Appeal's reply to it that it raised, among other things, a question about the conduct of the ET. In that reply, dated 27 May 2008, the Court of Appeal said that to the extent that allegations had not been raised in the EAT or with Wall LJ, the Defendant would need to explain why she was only raising them now, and that it was likely to be too late to raise them now. If she wished to, she would need to fill in a form. It seems the Defendant did not take up that invitation.
The fourth claim
The ET's decision
- On 6 September 2006, the Defendant brought a further ET claim against the Trust and Fresenius Medical Care Renal Services Limited ('Fresenius'). She claimed that both had victimised her.
- The ET upheld the claim against Fresenius in a Judgment sent to the parties on 4 June 2007. The ET held that Fresenius had cancelled a shift on 9 June 2006 which the Defendant was to have worked as an agency nurse because Mrs Stockley 'knew in general terms of the tribunal proceedings and this was the main factor in her decision to cancel the [Defendant's] shift and block further employment'. In the course of its Judgment, the ET also held that Ms Reutt, an employee of Fresenius, had interfered with a document by substituting her initials for the Defendant's. This, the ET held, destroyed Ms Reutt's credibility. The ET also had 'considerable doubt' about the evidence of Mrs Stockley, another Fresenius employee. They did not accept her evidence on some aspects of the case (see paragraphs 26 and 35 of the Judgment, for example). The ET said her explanations were 'totally unsatisfactory'. It is fair to say that the ET recorded its view that the Defendant was 'also a far from reliable witness'.
- The ET heard evidence from Professor Feest, of the Trust. The ET said, at paragraph 42, that given the reference in the evidence to a consultant medical director (a post he had held at the Yeovil unit from April 2006), 'The burden was very clearly on Prof Feest to convince us that the 'consultant' referred to was not him'. He admitted that he would have been concerned, if asked, about the Defendant working at the Taunton unit. But the ET accepted his evidence that he was not involved. The ET dismissed the claim against the Trust.
The application for a review of the ET's decision
- On 21 March 2010, after the ET case file had been destroyed, the Defendant applied for a review of that decision, on the grounds that the Trust's website showed that there was a link between the clinics where the discriminators worked and the Trust. The website described them as 'satellite units'. The ET said that it had been aware that there were close links, but there was no evidence that the nurses or managers of those units were employed by the Trust. There was no dispute that they were employed by Fresenius. The description 'satellite units' could not affect this. The ET were also aware of the links between Professor Feest and the units, and that he could have been 'the consultant'. But he convinced the ET that he had no role in the decision, and the ET concluded that Mrs Stockley had not been influenced by the consultant in making the decision, but by gossip, or by one of her members of staff. The application was 'way out of time'. The ET would only review such an old decision in 'the most exceptional circumstances', if, for example, there was 'hard evidence …which destroyed the [Trust's] case. There was no suggestion of that.
The fifth claim
- The Defendant brought a further claim against the Trust on 22 December 2008. She claimed unfair dismissal, race discrimination and victimisation. In her ET1 she alleged that she had lost the first three claims because of perjured evidence given by SR Greaves and by the Trust. She accused the ET of bias. She made a complaint of perjury to the police in 2007.
- The ET, in a decision sent to the parties on 16 April 2009, recorded that the Defendant conceded that she relied on matters which arose during her employment. The claims for unfair dismissal and discrimination could not be pursued because they had already been decided in 2006, the ET held. They were also 'lamentably out of time' and there was no proper reason to extend time. The victimisation allegation had not been decided by the ET in 2006. It related to a note of telephone conversation between the Defendant and her manager.
- The Defendant said the note was false and had been improperly prepared to be used in the first proceedings. She said that its disclosure to the police by the Trust was an act of victimisation. She had made a complaint of perjury to the police. The trust disclosed the document to the police in September 2007. The Defendant became aware that information had been disclosed to the police in late 2007. On 23 September 2008, the Defendant was told that the telephone note had been disclosed to the police. She must already have suspected that, as that note was the subject of her perjury allegation. On the basis most favourable to the Defendant, she must have known no later than 23 September 2008 that, as she had suspected, the document had been disclosed. She was possibly entitled to a short extension of time to bring a claim promptly in respect of something which had happened a year previously, but to no more than a month. She had not brought the claim until 22 December 2008. She was an experienced litigator in the ET and knew about time limits. It could not be right to extend time, particularly since the Trust's solicitors had written to her on 22 October 2008 to say that they would not correspond any further with her. The ET struck out that claim because it was out of time.
The sixth claim
- On 23 April 2009, a few days after the decision in the fifth claim, the Defendant brought a further claim against the Trust and her union, Unison, for discrimination. At paragraph 9.1 of the ET1 she acknowledged that the ET had rejected her unfair dismissal claim, but said that the ET in this further claim 'must' also consider whether she was unfairly dismissed, as the discrimination claim was closely linked with her dismissal. Her case was that the Trust had concealed from the ET that it had started a formal capability procedure. SR Greaves had discriminated against her and victimised her, and that Unison had co-operated with the Trust to have her unfairly dismissed.
- The ET's Judgment was sent to the parties on 17 May 2010, after a hearing on 15 April 2010. The ET quoted extensively from the Judgment of the ET on the first three claims. It rejected the Defendant's claim that she had only become aware of Unison's involvement when it served its defence in the county court claim (in March 2009). She had told that court that she knew this in February 2004. This was not, therefore, newly discovered evidence. The ET rejected her claim that she had learnt anything new in 2010: all the material suggested that there was no formal capability procedure, but that the Trust did have concerns about her performance. The ET, in short, was satisfied that the Defendant was trying to raise the same issues against the Trust as had been decided in the 2006 claim. This was barred by the rule in Henderson v Henderson (1843) 3 Hare 100. To succeed against Unison, the Defendant would have to persuade the ET that it had helped the Trust to do an unlawful act. But the ET had already decided, in the first three claims, that the Trust had not acted unlawfully. The ET unanimously decided that the claims should be struck out as having no reasonable prospects of success. The ET also ordered the Defendant to pay a costs order of £1000.
The county court claim against the police and the Trust
- On 5 May 2009, shortly after the decision in the fifth claim, the Defendant issued a claim in the county court against a policeman and the Trust. She claimed that the policeman had discriminated against her by discontinuing the perjury investigation. That discrimination was abetted by the Trust, because it submitted false documents to the police. She discontinued that claim and on 27 November 2009 was ordered to pay costs to the police and to the Trust.
- That order was made on the date when applications to strike out the claim had been listed (see paragraph 2 of the judgment referred to in the next paragraph). The Defendant had indicated in correspondence that she was discontinuing the claim because the issues would be dealt with in her ET claim and because she had not got disclosure of telephone bills (paragraphs 4 and 5, ibid). She did not attend the hearing on 27 November 2009 (paragraph 6, ibid).
- She then applied to set aside her notice of discontinuance. DJ Paddison refused that application in a judgment dated 18 March 2010. He found that the Defendant clearly intended to discontinue the claims. There was no provision in the CPR for this to be revisited. Moreover, there were no exceptional circumstances to justify the issue of subsequent proceedings on the same basis.
The NMC removes the Defendant from its register
- On 17 November 2006, the Trust referred the Defendant to the NMC, for writing the 31 August 2004 letter to patients (see above), and for writing two further letters in 2006, in which the Defendant, among other things, made complaints of race discrimination. The referral letter said that the Trust reported the Defendant to the police for writing these letters. There was a hearing on 20 and 21 October 2009, at which witnesses from the Trust gave evidence. The Defendant did not attend. The Defendant was struck off the NMC's register. The letter telling her of the decision is dated 22 October 2009.
- The decision was based on the 2004 letter. The NMC panel found that the Defendant did not fully co-operate with the Trust's investigation. It found that she did not respond until November 2005. The panel took into account the Defendant's lack of engagement with the Trust's investigation as one of the reasons for finding that striking off was the appropriate sanction. The panel referred to this four times in its decision.
- As appears from the ET decision which I next summarise, some of the evidence given by the Trust to the NMC was not true. The Defendant lodged an appeal against that decision in November 2009. That appeal has not been decided. As I have mentioned, there is a dispute whether or not the Defendant has abandoned it.
The seventh and eighth claims
(i) The Judgment on liability
- On 27 April and 27 October 2010 the Defendant brought two further claims. The seventh was a claim for victimisation against the Trust, arising from its referring her to the NMC, and from the evidence it gave to the NMC at the NMC hearing in 2009. Unison was joined, but the Defendant withdrew that claim. Time for bringing that claim was extended at a PHR (see paragraph 43 of the ET's Judgment). That claim succeeded against the Trust (see the Judgment sent to the parties on 15 April 2011), on the basis that the Trust had referred the Defendant to the NMC when it did so because she had made the fourth claim to the ET (ibid, paragraphs 87-107). In the course of its reasons, the ET decided that Ms Reutt was not a proper comparator for the purposes of this claim, because she was not employed by the Trust (ibid, paragraph 81). The primary responsibility for reporting her would be her employer's (that is, Fresenius'), not that of the Trust.
- The ET accepted that the Trust had a discretion to refer the Defendant to the NMC (ibid, paragraph 89). It explained in its decision on remedy (paragraph 9) that it was always proper to refer the Defendant to the NMC.
- The Defendant withdrew, shortly before the hearing (ibid, paragraph 24), the claim that the Trust had victimised her by giving false evidence at the NMC hearing in 2009.
- The eighth claim was a claim that the Trust had tried to persuade Unison to stop representing her, and that the Trust and Unison had colluded to ensure that the Defendant was not properly represented at various hearings.
- The Trust applied for an adjournment of the hearing of these claims, saying that it was taken by surprise by the view of the ET that the critical issue was why the Defendant was referred to the NMC when she was, and wanted the opportunity to call those who made the decision to refer. The ET refused that application. If the Trust wanted to call further witnesses, it could, but there was no reason to adjourn the hearing.
- The ET found the Defendant to be credible and straightforward. Mrs Hartley, from the Trust, who had given evidence to the NMC, gave evidence to the ET. The ET said that her evidence 'did not represent the truth in relation to important events' (ibid, paragraph 24). The ET found that the Defendant had responded promptly, on 8 August 2004, to the Trust's letter of 5 August 2004, to say that she was waiting for further information. She did not answer the questions in that letter until a letter in November 2004, but she had, in a letter dated 20 September 2004, explained why she had written the 31 August letter.
- Mrs Hartley, the ET found, was wrong to tell the NMC that the Defendant responded 'only after a very long time'. The NMC had not been told that the Defendant had responded in September 2004. The transcript showed that Mrs Hartley had told the NMC that the Defendant only wrote in November 2005, 'some ten months after… the letter which contained advice to her'. In its decision on remedy, the ET recorded that Mrs Hartley accepted that she had not given the NMC the whole picture but that she had not intended to mislead the NMC.
- The ET said that no letter of advice had been written ten months before November 2005. The advice letter was dated 6 September 2004, that is, after the 31 August 2004 letter. The Trust now accepted that, but it was not what the Trust had said to the NMC in the referral letter. The ET said that it was apparent that the NMC had believed that the advice letter had been written before the Defendant wrote the 31 August letter, but it had not been (ibid, paragraphs 25-31). The last point is also made in paragraph 47 of the Judgment.
- The ET heard no evidence from the decision makers, and was not impressed by the explanation for this.
- The ET held that the eighth claim was out of time. It refused to extend time, because of long period which had elapsed since the disputed events, the lack of documents, and the lack of specific recollection by the witnesses.
(ii) The decision on remedy
- The ET awarded the Defendant £15,000 damages for injury to feelings after a hearing on 24 and 25 October 2011. Its extended reasons for doing so were sent to the parties on 1 December 2011, the Judgment having been sent to the parties on 26 October 2011. The ET rejected her submission that she should be compensated for all the losses she had suffered from being struck off, as the referral had been proper. Because she had admitted writing the patient letter, had not attended the NMC hearing, and had not expressed any contrition, her own conduct had to a large extent caused the striking off. It was difficult to disentangle the causal influence of the false evidence in that decision, and she had withdrawn her complaint to the ET that the Trust had given false evidence to the NMC.
- The ET said there was no basis for compensating the Defendant for her time or expenses in bringing the proceedings, as 'there is not any behaviour by the [Trust] which would make it appropriate to consider this as a preparation time application or costs application.' The Defendant sought to revisit this conclusion in an application dated 4 April 2012 (see below).
- The ET did not make any formal recommendation, but encouraged the Trust 'in strong terms' to write to the NMC and tell them that 'Mrs Hartley was not able to bring to their attention that a letter had been written by the [Defendant] in September 2004'.
(iii) The Trust's appeal and applications for a review
- The Trust appealed against the ET's refusal to adjourn the hearing. The EAT dismissed the Trust's appeal after a hearing in July 2012. It also refused the Trust's application to adduce fresh evidence from the decision makers to say that it was the 2006 letters, rather than the fourth and fifth claims which prompted the referral to the NMC. The EAT refused the Defendant's application for the costs of the appeal on the grounds that the case for the Defendant did not reach the threshold for making an order against the Trust.
- The EAT referred to two applications made by the Trust for a review of the ET's decision, which I have not seen. It was very critical of the Trust. The EAT said that the Trust told the ET, wrongly, that Ms Prime, who had referred the Defendant to the NMC, did not know about the fourth and fifth claims. An email dated 7 September 2006 from Mrs Hartley to Ms Prime showed that she did know (EAT decision, paragraphs 43 and 47). The EAT also criticised the Trust for breaching its disclosure obligations in the ET; this emerged from the 'fresh' evidence which the Trust sought to adduce (decision, paragraph 51).
The ninth claim
(i) The substantive decision
- On 24 February 2011, the Defendant brought a further claim against the Trust for seeking to influence Unison against her on the grounds that she was black. She said that the Trust had admitted doing this on or around 17 February 2011. She sought to amend the ET1 on 7 April 2011. She withdrew the unamended claim. The proposed amendment was struck out on the grounds that it had no reasonable prospects of success at a PHR on 13 June 2011. The ET ordered her to pay £500 in costs because she had 'behaved unreasonably in waiting until today' to tell the Trust and the ET that she did not pursue the original claim.
(ii) The Decision on the review application
- The Defendant applied for a review of the costs order. The EJ refused it. She recorded that the Defendant had accepted at the hearing on 13 June 2011 that she accepted the ET's judgment from March about collusion.
The Bristol county court claim
- On 17 October 2011 the Defendant brought a claim against the NMC in the Bristol county court claiming damages for race discrimination arising out of the NMC's decision not to investigate a white nurse (Ms Reutt) but to strike the Defendant off its register. That claim was struck out, on the application of the NMC, by an order dated 20 June 2012. The Defendant was ordered to pay the NMC's costs.
- The District Judge ('the DJ') set out the history. The DJ had read the transcript of the NMC hearing. He recorded that the NMC had decided not to adjourn the hearing in October 2009 because there had already been one adjournment and there was a public interest in continuing with the hearing. The Defendant had had time to arrange for representation, and the case was relatively old. The legal assessor had taken steps to ensure that the hearing was fair.
- The DJ was not clear what had happened about the Defendant's appeal against the striking off. The NMC did not know what was happening. The Defendant suggested that the Administrative Court had advised her to stay the appeal and bring the present case. The DJ did not accept that explanation. The DJ recorded that the initial claim in the county court had been for damages limited to £5000, but that the Defendant suggested a figure of £600,000 in a recent email. The DJ set out the complaints in some detail. He summarised her case, 'at best' in paragraph 36 of his judgment. He directed himself that discrimination claims should only be struck out in the most obvious cases. He found that the claims were time-barred, and that the court would not disapply the limitation period. He nonetheless considered the merits of the claims. He concluded that the remedy for the first strand of the complaint was an appeal which the Defendant had chosen not to exercise. She was not able to give satisfactory answers when he asked her why she had not exercised her right of appeal (judgment, paragraph 63).
- He concluded that there was no real prospect of challenging the decision to strike off, and reached similar conclusions about the other two strands of the claim. He could see no evidence that the NMC had discriminated against the Defendant on grounds of race. He struck out the claims. He recorded in the judgment that after he circulated the judgment in draft, the Defendant sent in submissions arguing that his decision was wrong. Her costs submissions also were aimed at rebutting his judgment. The county court's order, dated 20 June 2012, records the court's finding that the claim was TWM pursuant to CPR 3.4(6).
The letter of 9 November 2011 from the Trust to the NMC
- On 9 November 2011 the Trust wrote to the NMC. A copy was sent to the Defendant on 12 November 2011. This letter sought to correct the evidence which had been given to the NMC about the timing of the Defendant's response to the Trust's letter of 4 August 2005.
The tenth claim
(i) The substantive decision
- On 24 November 2011, the Defendant made a tenth claim against the Trust. She said that the reason the Trust had given in the 9 November letter to the NMC for misleading the NMC at the 2009 hearing was 'also false and misleading'. It caused her great distress and amounted to continued victimisation. She also suffered a detriment when the Trust 'deliberately lied' at the NMC hearing. The ET at a PHR decided that the claim should be struck out for several reasons.
- First, the Defendant could not be permitted to revive the false evidence claim which she had withdrawn in the earlier proceedings. The doctrine of res judicata applied even though she had withdrawn the claim. Second, the facts were properly before the ET on the other claim. They had been ruled on by the earlier ET and the issue could not be re-litigated. Third, the letter of 9 November 2011 letter was protected by litigation immunity. The ET said that it was sent by a judicial body: I accept Miss Gilbert's submission that this statement is surprising, as it is by no means clear that the Trust is a 'judicial body'. The ET also held that the letter had been sent in the course of proceedings and for the purpose of those proceedings (presumably the Defendant's appeal against the decision of the NMC, which on her case, was still pending).
- The ET refused permission to amend the claim. One amendment made allegations about Ms Reutt, which had already been the subject of proceedings. The second also raised issues which had already been determined, and the 'new' evidence was not new. The claims were barred by res judicata, privilege applied, and the claims were out of time.
- If it had been necessary to do, the ET would also have decided that the claims had no reasonable prospects of success, even though this was a discrimination case. The Defendant's interpretation of the letter was that it was not an apology but an attempt to minimise the Respondent's conduct, and to improve its position in the pending appeal. The EJ said, 'I find it difficult to see that she could possibly succeed with such arguments. I also question what detriment [the Defendant] may have suffered. Most independent observers… might think that the letter was beneficial to [the Defendant]'.
(ii) The applications for costs
- The Defendant applied for her costs of the hearing of the seventh and eighth claims (see above). The EJ struck out this application. It was late, and was precluded by the ET's finding, in relation to that claim, that the Trust's conduct did not merit an award of costs against it.
- She also applied for her costs of the PHR in the tenth claim. She contended that in writing the 9 November 2011 letter the Trust was guilty of perverting the course of justice, perjury, abuse of process and contempt of court. The EJ rejected those allegations as they were 'totally without supporting findings'. He had found against her on these points and she could not re-open them. She had repeatedly tried to do so, and had not addressed the point that her claims had been struck out on several grounds, any one of which would have been enough. She had been given prior warning of the issues the Trust would raise. He would not make a preparation time order in a case which had 'failed so spectacularly'. She had also made 'bizarrely inappropriate' claims for time spent, including legal fees in earlier cases and for 600 hours she had allegedly spent since 2007. 'She should be aware that such claims cannot be made in these two matters. They are an abuse of process as well as unreasonable'. The EJ struck out those claims.
- The ET ordered the Defendant to pay the Trust's costs of the PHR. The Defendant submitted that she should not, because the Trust's employees were guilty of 'dishonest conduct'. The EJ had made no such findings. He held that it was 'arguable that [the Defendant] was entitled to oppose the strike out', which could be why the Trust did not ask for costs at the PHR. But her application for costs, which the Trust had had to oppose, was 'totally unreasonable' in the face of the EJ's substantive decision. It was 'misconceived', had no reasonable prospect of success, and was an abuse of process in that substantial earlier costs and preparation time were sought. The EJ recognised that he had a discretion to exercise. He ordered the Defendant to pay the Trust's costs of opposing her application for costs because the Defendant had 'shown an inability to accept my decision or my reasons. She pressed ahead with a claim in quite inappropriate circumstances'.
(iii) The application for a review of the decision
- The Defendant applied for a review of that decision on 1 May 2012. The Defendant argued that the decision was perverse and that the EJ was biased in favour of the Trust. The Defendant was misguided in thinking the test for a review obliged an EJ to consider any argument. She was simply seeking to re-open the arguments. This was inappropriate. The EJ refused the application.
(iv) The application for the review of the decision on costs
- On 14 May 2012 the Defendant applied for a review of the decisions on her and the Trust's applications for costs. Her main argument in support was that the witnesses lied. The EJ had dealt with this in paragraph 9 of his reasons of 1 May. He did not find that they had. The decision to order the Defendant to pay costs did not relate to the substantive hearing, but to the application for costs. He could not comprehend why the Defendant was saying she could not understand his reasons. She again made the serious allegation that he was biased. He rejected that allegation (which was based on a wholly inadequate foundation). What the Defendant seemed to be saying was that the decision had gone against her and must therefore be wrong. She did not address his reasons for refusing her application. Her costs application had no reasonable prospect of success.
(v) The Defendant's further submissions
- On 6 June 2012, the Defendant addressed further submissions to the EJ. She intemperately accused him of 'obvious improper conduct'. She was 'incensed and appalled by' his 'clear decision to assist a racist and lying Respondent who had admitted lying…'. She wanted to know why the EJ had decided that the Trust was not lying. She was 'adamant' that the EJ was not impartial and his conduct was improper…'. She accused him of 'clear bias' towards the Trust and of unfairness. She 'demanded' an explanation for his decision 'now' (emphasis as in the original). She wanted the submission to be treated as a complaint of misconduct by the EJ.
- The EJ in a letter dated 12 June 2012 said that the Defendant had already sought reviews of his decisions and no further review could be sought. The decisions were final.
(vi) The appeal
- The Defendant appealed to the EAT against the decision of 2 May 2012. She lodged her appeal one day late. She applied for an extension of time. The Registrar of the EAT refused to extend time on 15 June 2012 and she did not appeal that decision.
The eleventh and twelfth claims
(i) The claims and the applications to amend them
- On 18 August 2012 the Defendant brought an eleventh claim against Trust for discrimination on grounds of race. The NMC was first respondent to that claim. The Defendant said that after a subject access request, she had become aware, on 5 July 2012, that the Trust had had inappropriate contact with the NMC in order to collude with the NMC in giving her the most severe possible sanction on racial grounds. She also said that the NMC had treated other registrants more leniently than her. On 6 September the Defendant applied to amend her ET1, so as to add a complaint that the Trust had interfered with her application in August 2009 to adjourn the hearing. The NMC had been asked by the Trust for information about her appeal and the NMC had given information. She believed that the Trust had interfered with her complaint to the NMC about Ms Reutt. That application to amend was allowed by the ET in a letter dated 10 September 2012.
- She made a further application to amend on 28 September. She wished to rely on the criticisms of the Trust made by the EAT in its decision on the Trust's appeal against the decisions of the ET on the seventh and eighth claims (see above). That false evidence was further victimisation of the Defendant. On 7 November 2012 she applied to clarify her ET1. This clarification was a new claim that the NMC had directly discriminated against the Defendant in refusing to 'progress' her 'application for restoration to the NMC register'. Her case was that she had asked the NMC to include the letter of 9 November 2011 with the transcript of the NMC hearing in the letter to her referees, but the NMC on 31 October 2012 said that it had closed the application. The NMC did not explain why. The Defendant explained in the twelfth claim that her consent to the charges and the transcript being sent to the referees was conditional on the November 2011 letter also being sent to the referees. Mr Solomon made it clear that the NMC does not accept that it received the letter which the Defendant relies on for this complaint.
- On 22 November 2012, the Defendant brought a twelfth claim. The NMC and the Trust were respondents. The NMC discriminated directly against her on grounds of race by refusing to progress her application for restoration. The NMC had refused to deal with her application because she had insisted that the November 2011 letter be sent to her referees. She also contended that once it had received the November 2011 letter, the NMC should have reviewed the decision to strike off of its own motion, and its refusal to was direct discrimination on grounds of race. She also claimed that the NMC had unfairly dismissed her. On 30 November 2012, the Defendant applied to amend that ETI. The Trust and the NMC had colluded together. The Trust's nursing director, Ms DeHalle, was also a member of the NMC's relevant committee. She knew about the November 2011 letter and should have ensured that the NMC reviewed its decision. On 14 December 2012, she added that the failure to review the decision was harassment. She also wanted to complain about the conduct of the NMC's representative in relation to the bundle of documents for a PHR listed for 22 November 2012.
(ii) The decision of the ET
- On 26 June there was a PHR in both claims. The Defendant represented herself, but relied on submissions drafted by counsel. The ET's reasons were sent to the parties on 2 September 2013. The EJ summarised the claims in paragraph 15 of its Judgment. The NMC submitted that, in so far as the NMC's acts were acts of a 'qualifications body' the ET was precluded by section 54(2) of the Race Relations Act 1976 and by section 120 of the Equality Act 2010 from hearing any complaint about an act in respect of which a person can bring an appeal, or proceedings in the nature of an appeal. The Defendant had a right of appeal against any decision of the NMC's relevant committee. In so far as the NMC's acts were not acts of a 'qualifications body', the ET had no jurisdiction over them at all.
- The Defendant had not explained why she did not pursue her appeal to the High Court. There were two types of complaint against the NMC. The first was the decision to strike her off the register and decisions which were 'so intimately and inextricably linked to that decision that it would be invidious and wrong to attempt to separate them out'. Those were decisions to take into account evidence at the hearing, colluding with the Trust in striking her off, refusing to adjourn the hearing, and failing to progress her application for restoration. In the EJ's judgment, 'all of those complaints are different ways of saying that the decision to strike off [the Defendant] should not have been made, or should be reversed.' The second group of complaints had nothing to do with the NMC's role as qualifications body. This included failing to involve the Defendant in communications, destroying evidence, and failing to investigate Ms Reutt, for example. The ET had no jurisdiction to investigate those complaints, whether or not they were well founded.
- The ET summarised the Defendant's claims against the Trust in paragraph 35 of its Judgment by reference to the documents referred to in paragraph 34. These included an application made at case management discussion on 18 March 2013 to amend her claim against the Trust to claim continuing victimisation because the Trust had not paid the remedy awarded in the Judgment sent to the parties on 1 December 2011.
- The claims against the Trust based on false evidence at the NMC hearing were an abuse of process, because they had already been made and withdrawn in a previous case in March 2011. In any event, the allegation had no reasonable prospect of success and was out of time. The Defendant was an experienced litigant, knew about the strict time limits and had not explained the delay in bringing the claim.
- It was 'no more than fanciful', in the light of terms of the decision on remedy of 1 December 2011 (see above) that the Defendant was struck off because of 'some imagined collusion' between the Trust and the NMC. The emails were not evidence of collusion. It was no surprise that there was some contact between the reporting body and the regulator. The claims were also out of time.
- There was no evidence of any application for an adjournment of the NMC hearing listed for October, although it was clear that the June hearing had been adjourned. The NMC received a letter on 20 October 2009, the day listed for the hearing, which simply said that the Defendant would not attend because she had no representation. Even if she had applied for an adjournment, there was nothing in the 'voluminous' papers to suggest that the Trust had any interest in the timing of the hearing. That application had 'no prospects of success whatsoever'. Similar reasoning applied to the fourth complaint against the Trust.
- There was 'not the slightest scintilla of evidence to suggest' that the Trust interfered with the Defendant's appeal to the High Court. The Trust had asked for information about the appeal and had got very little. 'That slender reference goes nowhere near supporting the edifice which the [Defendant] seeks to build on it… This complaint bears all the hallmarks of a fanciful inference drawn by the [Defendant] on the basis of no evidence at all'. This claim was also out of time.
- The fact that Ms Reutt had not been referred to the NMC by the Trust did not give the Defendant a cause of action over which the ET had jurisdiction. The allegation which compared the Defendant's treatment with that of Ms Reutt had been fully considered by the ET in March 2011. The issue was res judicata and it would be an abuse of process to re-litigate it. In so far as it was a different complaint - that the Trust had not referred Ms Reutt - the ET had no jurisdiction over it. It had no prospects of success and was struck out on that basis. This reasoning applied to complaints six and eight.
- The EJ dealt next with the actions of the Trust which the EAT had criticised (see above). The EJ recalled that the Defendant had succeeded in that claim. The Trust relied on litigation immunity to argue that everything done in the ET proceedings had an absolute immunity from suit. The EJ could not see how the Defendant had suffered a detriment, since her claim had succeeded. The complaints were also covered by litigation immunity. Nor had the Defendant explained the delay between November 2011, when she received evidence of the Trust's failings, and the date when she brought the claim. There was no basis for extending time.
- The 'NMC issue' had been before the ET in March 2011. There was no ground for allowing the Claimant to re-litigate it. That would be an abuse of the ET's process, and the ET struck out that complaint. Moreover, the 2009 hearing was by a judicial body, and things done in the course of such a hearing were immune from suit. There was no explanation for the delay in bringing the claim.
- The ET did not allow the amendment about Ms DeHalle. She was acting in her capacity as an officer of the NMC, not as an employee of the Trust. That complaint had no reasonable prospect of success. The Defendant had not explained her delay since November 2011 in making any complaint about the NMC's failure to review her case, and time for bringing that claim would not be extended.
- The Defendant was given permission by the county court to enforce the ET's award on 14 December 2011. It was common ground that the county court had made a further order on 12 April 2012 granting the Trust's application for a set off. There was no reasonable prospect that the Defendant would succeed in showing that the Trust's continuing failure to pay the award, which was supported by a court order, was continuing victimisation. Moreover, she had delayed for a year or more before raising the complaint and had not explained the delay. There was no basis for extending time.
- The Defendant had not explained her assertions about EU law or the European Convention on Human Rights. The EJ could not see how those could be engaged.
- The ET struck out both claims against both respondents. The ET recorded that the Defendant had withdrawn her unfair dismissal claim against the NMC.
(ii) The application for reconsideration
- The Defendant applied for reconsideration by letters dated 9 and 19 September 2013. The EJ said that the arguments were arguments in the nature of an appeal and were not appropriate to be considered on a review. The application was refused.
(iii) The appeal
- The Defendant appealed. Her appeal was one day out of time. She submitted most of the documents in time, but the appeal was not properly constituted because one of the ET3s was missing. She was alerted to that by the EAT, but submitted it five hours and 24 minutes too late. The Registrar refused to extend time. The Defendant appealed against the Registrar's order. The EAT dismissed that appeal. It recorded in its decision that the Defendant arrived 'rather late' and applied to exclude the respondent's counsel from the hearing. Her explanation for not including the ET3 was that she had not been told about it and did not know of its existence. The EAT did not fully accept that explanation (see paragraphs 4 and 5 of its decision). The EAT did not accept that her explanation was a good excuse for the delay. The EAT had not gone into the merits (see paragraph 9 of its decision) but said 'For today's purposes, from what I can see, at best the grounds of appeal are arguable'. That conclusion did not take it out of the ordinary run of cases. The fact that the Defendant 'may have' an arguable appeal did not mean that time should be extended.
- The ET awarded costs of £7,500 to the each respondent in a decision sent to the parties on 8 December 2014. It dismissed the Defendant's application for costs. The EJ said that the Defendant's conduct in bringing the claims was vexatious and/or unreasonable in three ways. The history of the litigation showed that the Defendant sought not only to pursue claims that had no merit, but to do so vexatiously. The claims brought against the Trust had no prospects of success at all. It was one of those exceptional cases where a claimant had proceeded both vexatiously and unreasonably. The Defendant sent a document indicating her intention to appeal both costs decisions to the EAT. The broad thrust of the grounds of appeal was that HHJ Shanks had said that her appeal was arguable, and this showed that the ET's decision was wrong. She described the ET's decision as 'perverse, biased, inadequate and clearly wrong'. She made other intemperate criticisms of the EJ.
The thirteenth claim
(i) The claim and proposed amendment
- In January 2014, the Defendant brought a further claim of discrimination on grounds of race against the Trust and the NMC. In short, she complained that the NMC had decided on 4 December 2013 not to continue an investigation against one of the Trust's nurses who had given evidence against her at the October 2009. The Trust had discriminated against her by telling the NMC that it had no fitness to practise concerns about the nurse, who had a history of discriminating against her. She asked for a stay of the case while she tried to resolve it. She then applied to amend the claim. The NMC had wrongly said in a letter dated 20 September 2013 that it had not reviewed the sanction. She had recently discovered a document entitled 'closure reasons' which showed that the NMC had done several reviews of her complaint about the nurse and not told her. The ET had wrongly struck out her claim on the basis of false evidence. She also complained that the Trust had given several awards to the nurse. She believed that these were rewards for giving false evidence.
(ii) The ET's decision
- There was PH on 31 March 2014. The ET's reasons were sent to the parties on 3 April 2014. The ET struck out the claim with one exception. The Defendant was ordered to indicate whether or not she pursued her application to amend. If she did not, the application would be treated as withdrawn. The EJ recited the history. He summarised the claims at paragraph 5.1 of his Judgment.
- The allegations about the nurse's false evidence had already been litigated, withdrawn, and then held to be barred in paragraph 43 of the decision after the June 2013 PHR. The withdrawn claim gave rise to an issue estoppel. Moreover the allegation was covered by judicial immunity. The allegation had no reasonable prospect of success and was an abuse of process. The Defendant suffered no actionable detriment as a result of the NMC's decision not to investigate the nurse's conduct further, or as result of the Trust's failure to discipline, and decision to promote, the nurse. The Defendant's case on causation was also problematic. That allegation had no reasonable prospect of success. An allegation that two other nurses had not been dealt with had not been developed and was, in any event, 9 years old. The claim that the nurse had given false evidence in 2006 was relied on as background and was covered by judicial immunity.
- The only claim against the NMC was its decision to discontinue the investigation of the nurse after the Defendant referred her to the NMC. This was not a detriment, either. In addition, first, section 53 of the 2010 Act does enable a complaint to be made that another person's qualification has not been withdrawn, and, second, the decision not to refer was amenable to judicial review and so the ET did not have jurisdiction to decide it. The Claimant had come to the ET with a draft claim form as an alternative to amending the existing claim. She had applied for consideration of the amendment application to be adjourned, but the EJ refused that application. But the EJ did not decide the application to amend, as the Defendant had a black out and fell during a short adjournment during the hearing. She was too distressed to continue with the hearing.
(iii) The application for a review
- The Defendant applied for a review. The ET refused that application in a decision sent to the parties on 14 April 2014. The ET said that the application centred on the NMC's failure to progress her complaint about its dismissal of the referral of the nurse. The problem was that this was not part of the claim to the ET. This had no reasonable prospect of success. Section 53 of the 2010 Act did not apply to someone else's qualification (see paragraph 5.23 of the decision). The NMC's complaints procedure did not advance the Defendant's case. The EJ rejected the suggestion that the NMC's counsel had bullied the Defendant. The Defendant had told the ET that she did not want to pursue the application to amend her claim.
The fourteenth claim
- The Defendant made a further claim against a named employee of the NMC and the Trust on 7 April 2014. She also named the NMC's legal representatives. The complaint focused on the 'closure document' referred to in the application to amend the thirteenth claim (see above). She accused the NMC's counsel of making false submissions to the ET in June 2013. The document showed that her case had been reviewed (it refers to 'thorough reviews taking place'). She asked for financial compensation, a recommendation for full disclosure of the review decision and a referral of the NMC to the High Court and a referral of the NMC's legal representatives to the SRA. This claim has been stayed pending the decision on this Part 8 application.
The fifteenth claim
- On 13 June 2014 the Defendant made a fifteenth claim against the NMC and the Trust. This also complained of the NMC's refusal to review its decision to strike off the Defendant. This was said to be discrimination on grounds of race and victimisation. The NMC was obliged to reconsider the decision if it received new evidence. It had done so in November 2011. Despite this it had consistently refused to review the decision. The June 2014 decision of the EAT showed that she had a good claim against the NMC for failing to review its decision and that the ET has jurisdiction to decide that claim. If she had been white, her striking off would have been reviewed soon after November 2011 and she would have received a less severe sanction. She was suffering a continuing detriment because the witnesses for the Trust had lied at the NMC hearing. She was seeking all her financial losses as a result of the striking off, and her costs, including the costs of her appeal to the High Court. She would submit a schedule of loss in due course. This claim has also been stayed pending the decision on this Part 8 application.
The injunction in this case
- In January 2015 the Claimants applied for an order, on notice, restraining the Defendant from further litigation against them in the High Court, the county court or the ET, unless she had the permission of the applications judge of the Queen's Bench Division. That application was granted. The order, which is date-stamped 29 January 2015, recites that the Defendant did not attend and was not represented. The order also records that her application dated 1 January 2015 for an adjournment was refused.
- There is no provision in the rules which apply to the ET or to the EAT enabling either to make orders restraining litigation in the ET. The ET is not a court to which the CPR apply: see section 9(1) of the Civil Procedure Act 1997 and Law Society v Otobo  EWHC 2264 (Ch).
- In the decision in this case to which I have already referred, Hamblen J considered the history of Civil Restraint Orders ('CROs'). Since 1 October 2004, civil courts have had the power to make CROs under the CPR. Rule 3.11 of the CPR provides that a Practice Direction may make provision for CROs. Such a Practice Direction had been made (PD C to CPR Part 3). Part 3.11 puts on a statutory footing the powers of the High Court, under its inherent jurisdiction, to prevent abuse of its process. These powers were elucidated in Bhamjee v Forsdick  EWCA Civ 1113;  1 WLR 88, Grepe v Loam (1887) 37 Ch D 168, Ebert v Venvil  Ch 484, and Attorney General v Ebert  EWHC 695 (Admin);  2 All ER 789. In Ebert, the Court of Appeal held that the High Court has power to make a CRO in relation to proceedings in the county court, which, like the ET, is an inferior court.
- Hamblen J paid tribute to the decision of Proudman J in Otobo and to an article by Sir Jack Jacob, 'The Inherent Jurisdiction of the Court' ( Current Legal Problems 23). He followed Otobo, and held that the High Court has power to make a CRO restraining proceedings in the ET. He also noted (judgment, paragraph 23) that in a number of earlier cases it had been assumed without argument that the High Court had such a power. At paragraph 30, he rejected an argument that the express provisions of the CPR limit any power to restrain ET proceedings. The express provisions were not in conflict with such a power. He continued, 'No doubt, however, the inherent jurisdiction to make CROs in relation to such proceedings would be exercised consistently with the principles and practices set out in the PD'.
- Practice Direction 3C provides that all types of CRO restrain the person against whom they are made from taking steps in litigation without first getting the permission of the judge identified in the CRO. If proceedings are started in breach of a CRO they are automatically struck out or dismissed. If a person persistently makes applications to bring proceedings which are TWM, the decision to refuse permission will be final and the person can only appeal against it with the permission of the judge concerned. As Hamblen J explains in his decision (judgment, paragraph 10), Practice Direction 3C provides for three levels of CRO.
- A limited CRO may be made by a judge of any court. Such an order cannot be made unless that person has made two or more applications which are TWM. It prevents (unless permission is sought) the making of any further applications in the proceedings in which the order is made. It is limited to those proceedings and lasts for the duration of those proceedings unless the court orders otherwise.
- An extended CRO ('ECRO'), unlike a general CRO, can only be made by a judge in the Court of Appeal, a High Court judge or a designated civil judge or his appointed deputy. It can only be made where a person 'has persistently issued claims or made applications which are' TWM. If such an order is made by a judge of the High Court, it can restrain the issuing of claims or making of applications in the High Court or in the county court (unless permission is sought) 'concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made'. An ECRO is made for a fixed period (no more than two years) and must identify the courts in which the person against whom it is made is to be restrained from issuing claims or making applications. The two-year period can be extended. It must not be extended for more than two years on any given occasion.
- A general GCRO can be made where a person 'persists in issuing claims or making applications which are TWM, in circumstances where an extended CRO would not be sufficient or appropriate'. Such an order, if made by a judge of the High Court, restrains a person from issuing any claim or making any application in the High Court or the county court (unless permission is sought). A GCRO is made for a fixed period not greater than two years. The two-year period can be extended. It must not be extended for more than two years on any given occasion.
- In R (Kumar) v Secretary of State for Constitutional Affairs  EWCA Civ 990;  1 WLR 536, at paragraph 60, the Court of Appeal said, referring to the then recently amended Practice Direction 3C, 'The new language is apt to cover a situation in which one of these litigants [ie a person who persists in issuing claims or making applications which are TWM] adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an obsessive approach to a single topic that an [ECRO] can appropriately be made against him or her'. The Court of Appeal also said, at paragraph 69, that under the new rules-based regime, the former requirement for vexatiousness has gone.
- There are two main legal issues about which I heard argument. They were whether the Claimants' conduct prevented the grant of a CRO, and what the test for making a CRO is. As I am applying PD 3C by analogy, I have to decide whether the Defendant had persisted in issuing claims and making applications which are TWM.
- Miss Gilbert submitted that, in various ways, the Claimants do not have 'clean hands'. An injunction is an equitable remedy. A CRO is a form of injunction, she submitted, and so a CRO should not be made in favour of an applicant or applicants who do not have clean hands. I reject that submission. There are two linked points. It is true that a party to litigation who is granted a CRO derives a significant benefit from it. But, first, the CPR (rules 3.3(7), 3.46 and 23.12) oblige the court, in certain circumstances, of its own motion, to consider whether or not to make a CRO. This reflects the public interest that CROs should be made in appropriate cases, whether or not someone asks the court for one. So the existence of, and role of, an applicant for a CRO is of secondary importance, and it seems to me to follow that the general conduct of any applicant for CRO is of limited, if any, relevance to the question whether a CRO should be made. Second, it is clear from the decision of Hamblen J that the source of the power to make a CRO the court's own jurisdiction to protect its process, and that of inferior courts, from abuse. The power to grant a CRO protects, therefore, the significant public interest in ensuring that the time and resources of the courts, and of litigants, are not wasted on unmeritorious claims. So the benefit to an applicant for a CRO, if the test for making a CRO is met, it is not an adventitious benefit, and it is a benefit which coincides with a significant public benefit. I do not, therefore, consider that the general conduct of an applicant for a CRO could, as a matter of principle, deprive the court of the power to make a CRO if the test for making one is met. It is also relevant that in some cases (and this is one) a CRO is also an important protection for an obsessive litigant, as, to some extent, it shields such a litigant from incurring liability or liabilities to costs which he would otherwise incur if he were free to litigate totally unmeritorious claims at will.
- I accept that the conduct of the applicant may be relevant to the question whether the respondent to an application has made claims which are TWM; but that is a different issue. In case that is wrong, I say a little more about this issue below.
- The debate about the test for making a CRO stems in part from two decisions of the Court of Appeal: R (Grace) v Secretary of State for the Home Department  EWCA Civ 1191;  1 WLR 3432 and Samia v Secretary of State for the Home Department  EWCA Civ 82. Those decisions concern the test which should be applied by the Administrative Court in certifying that an application for permission to apply for judicial review is TWM pursuant to CPR rule 54.12. Samia makes it clear that the test for such certification is not met merely if the claim does not have reasonable prospect of success. A further effect of those decisions (as is absolutely clear from the last sentence of paragraph 14 of Samia) is that the phrase 'TWM' means one thing in PD 3C and something else in CPR rule 54.12. I am bound by that approach and say no more about it. The parties' submissions about the effect of the phrase 'TWM' in PD 3C contended for a variety of paraphrases of 'TWM'. Miss Gilbert submitted that 'TWM' means 'bound to fail' and that that is a higher test than 'no reasonable prospect of success'. I will adopt the paraphrase which is most favourable to the Defendant, but I must make clear that I do not decide that that is the right test as a matter of law. Had the test not been in dispute, I would simply have applied (by analogy) the language PD 3C paragraph 4.1.
- There is only one claim which has been expressly certified as TWM. It is a county court claim. That is not surprising because the ET, unlike the county court, is not obliged expressly to consider whether a claim or application is TWM. Both sides agreed that I have to analyse the Defendant's claims and applications and decide for myself, taking into account the reasoning in each decision, whether or not any was TWM. Miss Gilbert submitted in her skeleton argument that, apart from that county court claim, no claim or application was TWM. Mr Solomon submitted that many were.
(i) Were any of the claims or applications TWM?
- Mr Solomon did not suggest that the first four claims were TWM. He was right not to. Only one of those claims succeeded, but they were all arguable on their facts. To a significant extent, the ET's decision on the discrete issues depended on its evaluation of the evidence, and of the explanations given by the respondents for what they had done. He did argue that the appeals to the EAT and to the Court of Appeal were TWM. Counsel acting under the ELAAS scheme considered that it was proper to advance one argument in support of the appeal to the EAT, and I do not consider, in those circumstances, that I can say it was 'bound to fail'. I do, however, consider that the written and renewed oral applications for permission to appeal to the Court of Appeal were bound to fail, and that that should have been clear to the Defendant. The EAT clearly explained in its judgment on the preliminary hearing why appeal against the refusal to adjourn was not arguable. The attempts in those applications to re-argue the facts were conspicuously bound to fail. I consider that it would be unfair to the Defendant for me to draw inferences about the contents of the later letter to the Court of Appeal, since I have not seen it, and I do not do so.
- I also consider that the application for a review of the decision in the fourth claim was bound to fail, and, therefore, TWM. It was made nearly three years after the ET's reasons were sent to the parties, and was made on the flimsiest of grounds. The findings in the fourth claim about Ms Reutt were relied on by Miss Gilbert as part of her case that the Claimants did not have clean hands. Her case was that the Claimants should have disclosed these findings. But they are irrelevant, because Ms Reutt was not employed by the Trust. She was employed by Fresenius.
- I reject Miss Gilbert's submission that the Defendant did not intend to challenge her dismissal again in the fifth claim. That is how the ET read, and how I read, the ET1. This claim, too, was bound to fail, and was therefore TWM. The circumstances of the Defendant's dismissal, and whether she had been discriminated against during her employment, had been fully considered by the ET in the first three claims. There was no conceivable basis on which an ET could examine them again. I do not understand the victimisation claim based on the disclosure of a note of a telephone conversation to the police. The note was the subject of a perjury allegation made by the Defendant against the Trust. It is impossible to see how by disclosing that note to the police (who appear to have been investigating the allegation of perjury at the Defendant's instigation) amounted to victimisation of the Defendant. In my judgment, that claim, too, was bound to fail. The reasons of the ET for dismissing the fifth claim are significant for two further reasons. They make it clear that there is a general principle that claims cannot be re-litigated in the ET once they have been considered and decided, and they make it clear that claims which are out of time will be rejected unless there is a good explanation for the delay.
- The county court claim against the Trust covers similar ground to that of the fifth claim. It is difficult to see how the claim against the policeman could have succeeded. Nonetheless, on the limited material I have, I do not feel able to exclude the possibility that the Defendant might have persuaded the county court that the burden of proof had shifted. I have no hesitation, however, in deciding that the application to set aside the notice of discontinuance was bound to fail, and so TWM, even though DJ Paddison did not certify it as TWM.
- The sixth claim was utterly hopeless. In so far as the claim was against the Trust, it clearly covered ground which had been litigated in the first three claims. I reject any suggestion that the Defendant was not seeking to litigate the question whether she had been unfairly dismissed. Once it is clear that the Defendant was trying to re-open questions which had already been decided by the ET, and which the ET would not, therefore, re-consider in the sixth claim, it was also clear that the claim against Unison was bound to fail; there was nothing unlawful for them to abet. These claims are TWM. That view does not depend on the fact that the ET made a costs order, but it is supported by that decision. The test for making such an order which applied at the time was that the conduct of the paying party had been vexatious, abusive, disruptive, or otherwise unreasonable, or the bringing or conducting of the claim was misconceived.
- For what it is worth, the Trust's application for a review of the ET's decision on the seventh claim was misconceived. The EAT was rightly critical of its conduct in relying on inaccurate evidence. But even if I were to assume that the application and the appeal were TWM (and I note that the EAT did not award costs against the Trust), neither can in any way undermine the case of making a CRO against the Defendant, if the test for making it is met. The Defendant's late application for her costs of the seventh claim was also misconceived. It was precluded by the ET's findings, on the remedies hearing, about the Trust's conduct of the claim. It was bound to fail and TWM.
- The ninth claim was bound to fail and should not have been issued. The Defendant was again seeking to litigate issues which had already been litigated. The claim was TWM. That view does not depend on the fact that the ET made a costs order against the Defendant.
- The claim brought in Bristol county court in October 2011 was certified by the DJ as TWM. I need say no more about it at this stage.
- To the extent that the tenth claim sought to resurrect the allegation that the Trust victimised the Defendant by giving false evidence at the NMC, it was bound to fail and TWM. That allegation had been raised, and withdrawn, in previous ET proceedings and it was an abuse of process for the Defendant to raise it again. Whether or not, as a litigant in person, she knew that the full scope of the doctrine of res judicata is neither here nor there. She should have realised, as a result of the ET's decision on the fifth claim, that it was risky to try and re-argue the subject matter of earlier litigation. The rest of the claim was bound to fail, for the reasons given by the ET. The ET said that it is difficult to see, in any event, how the claim could have succeeded, on its merits. I would go rather further, and say that it was bound to fail. The Defendant's application for the costs of this hearing was also bound to fail and was TWM. The ET's reasons for refusing the application show why. The Defendant's application for a review, which made serious allegations of bias against the ET was also bound to fail and TWM. It simply failed to engage with the ET's reasons for finding against her.
- To the extent that the eleventh and twelfth claims relied on false evidence given to the NMC by the Trust at the NMC hearing, they were bound to fail and TWM. The Defendant had been told already by the ET that she could not revive this allegation, which had been made and withdrawn in a previous claim. If the analysis of the ET is correct, the rest of claims were also bound to fail. They sought in one way or another to litigate questions in relation to which she had a statutory right of appeal, or were complaints about acts of the NMC which were not acts of a qualifications body for the purposes of the legislation. The Defendant sought to appeal, but her appeal was out of time. The fact that the EAT was prepared to assume in her favour that the Defendant's grounds of appeal were arguable (it is no more than an assumption, because the EAT did not go into the merits) would not incline me to go behind the ET's conclusions.
- However, Miss Gilbert argued that the claims were not TWM that to the extent that the eleventh and twelfth claims were based on the NMC's failure to deal with the Defendant's application for restoration to the register. The decision of the NMC of 20 September 2012 to close the file on the Defendant's application for restoration to the register was not a decision against which there is a statutory right of appeal (see article 38(1)(a) of the Nursing and Midwifery Order 2001, 2002 SI No 253, which confers a statutory right of appeal against decisions of the Conduct and Competence Committee of the NMC, but not against administrative acts). She relied on Michalak v GMC  EWCA Civ 172, a very recent decision of the Court of Appeal. In that case the appellant complained to an ET that actions taken by the GMC in the course of an investigation into her conduct were acts of unlawful discrimination. The issue was whether the availability of judicial review to challenge those acts, the ET's jurisdiction was excluded by section 120(7) of the Equality Act 2010. The Court of Appeal decided that, in general, the availability of judicial review to challenge an act or decision does not mean that that act or decision is 'by virtue of an enactment subject to an appeal or proceedings in the nature of appeal' for the purposes of the exception from the ET's jurisdiction created by section 120(7). In paragraph 34, Ryder LJ said, obiter, that 'an internal review may be sufficient even if a statutory appeal to the High Court is absent…. For those cases, the ultimate remedy of judicial review is available as an effective safeguard'. The other members of the Court agreed with Ryder LJ's reasons for allowing the appeal. The comment in paragraph 34 was not part of those reasons. I am not persuaded by Mr Solomon that this tentative observation binds me, or that it is obviously correct. This is a question of statutory construction. This observation is not consistent with the reasons for which the appeal was allowed (see, in particular, the observations of Moore-Bick LJ, especially at paragraph 53). At the time of the ET's decision the ET's reasoning was apparently correct: see the decision of the EAT in Jooste v GMC  Eq LR 1048. In any event, it seems to me that even if this aspect of those claims was not TWM, the rest of the eleventh claim was TWM. The twelfth claim was, in any event time-barred. It was a further example of the Defendant bringing a claim long after the three-month period had expired, and not explaining the delay. It was TWM on that ground, if on no other.
- The Defendant's application for costs against both Respondents was clearly TWM.
- The thirteenth claim was bound to fail and was TWM. It, in essence, was a complaint about the NMC's treatment of another nurse, and was therefore not, vis à vis the Defendant, done by the NMC as a qualifications body for the purposes of the statute. This ground had already been covered by the ET in its decision on the eleventh and twelfth claims. The Defendant had suffered no actionable detriment from favourable treatment accorded to that nurse by the Trust. This conclusion is not affected by the decision in Michalak, to which I have already referred, as the reasoning which is affected by Michalak is only part of the reasons supporting the ET's conclusion. I also consider that the Defendant's application for a review was TWM.
- I was invited by Mr Solomon to express views about the merits of the fourteenth and fifteenth claims, and to include them in any order. I deal with the form or the order below. I acknowledge that there are powerful factors which suggest that I should not express any views about those claims. The forum for litigating those claims is the ET. They were issued before the interim order was made in this case. Further, the views which I have expressed about the earlier claims have all been based on, and informed by, the views of the specialist tribunal which has had statutory power to consider them, and which has considered them. I have no similar help in relation to these claims, and am cautious about appearing to trespass into the ET's jurisdiction.
- Nonetheless, on balance, I do consider that, having reviewed the other claims in some detail, I should expressly decide whether these claims are TWM or not. In order to do so, I have to decide whether the fifteenth claim is barred by cause of action estoppel. I am grateful to both counsel for their written submissions on this question. I reject Mr Solomon's submission that Michalak decides this question against the Defendant (see above). But I accept his submission that to the extent that the Defendant, in these claims, seeks to re-litigate the NMC's failure or refusal to restore her name to its register, it is barred by cause of action estoppel. The question of statutory jurisdiction which was decided by the ET against the Defendant was a point 'which had to be and [was] decided in order to establish the existence or non-existence of the [statutory] cause of action' on which the Defendant relied in the twelfth claim (see Price v Nunn  EWCA Civ 1002 at paragraph 67). She seeks to rely on exactly the same cause of action in the fifteenth claim.
- Miss Gilbert argues that the decision on the review claim only gives rise to an issue estoppel. She then argues that the recent decision in Michalak would make it unjust for the Defendant to be bound by any issue estoppel (see Arnold v National Westminster Bank  2 AC 93 and Virgin Atlantic Airways Limited v Zodiac Seats UK Limited . I reject Miss Gilbert's submission that jurisdiction is not an essential ingredient in the cause of action, but goes merely to the forum in which the cause of action is litigated. In the case of a statutory cause of action, jurisdiction and the existence of the cause of action are difficult to separate. I am therefore inclined to think that the fifteenth claim is barred by cause of action estoppel. But if that is wrong, it seems to me that the attempt to re-litigate the review allegation would, in any event, be bound to fail, as it is even more out of time now than when it was first raised.
- My clear view is that both claims are TWM. They either seek to revive grievances on which decisions have already been made, or make claims which are not remotely likely to succeed.
Should the court make a GCRO?
- I accept Miss Gilbert's submissions that even if I find that the Defendant has persistently made claims or applications which are TWM, I have a discretion whether or not to make a CRO, and that it must be proportionate to make a CRO. I take into account the Defendant's own interests at this stage. As against the interference with her right to bring claims, I balance the cost to her of having brought and lost so many such claims so far. I also take into account the costs to the Respondents of having to fight such claims, the strain on the resources of the ET in having to deal with such claims, and the implications for other ET litigants of such strain. I do not consider that the Defendant's status as a litigant in person is relevant. If she chooses to repeatedly to bring claims as a litigant in person, she does so at her own risk. The courts need to be protected from TWM claims brought by litigants in person. I also take into account that the Defendant has occasionally withdrawn claims or applications. But far more often, she has persisted in them and, at times, renewed them.
- I should say a little more about the Claimants' conduct (which I have held is not relevant). Miss Gilbert relied on various matters; first, on Ms Reutt's conduct. I have already explained why this is immaterial. She also relied on inaccurate evidence by the Trust's witness, Ms Hartley, to the ET and to the NMC. The evidence to the ET is irrelevant, because the Defendant won that claim. The evidence to the NMC would be highly relevant if the appeal to the Administrative Court were pursued (see below). But it cannot prevent the court from making a CRO if that is otherwise justified, as it does not make the TWM claims meritorious, and does not justify the nuisance to the Claimants and to the courts which such claims represent. The same reasoning applies to the fact that the ET found that the Trust victimised the Defendant by referring her to the NMC. The same reasoning also applies to the indefensible conduct which the EAT criticised in the Trust's appeal in the seventh claim. The evidence about the warning letter given in the unfair dismissal claim was not material to the decision in the claim, and, in any event, that claim was not TWM. Miss Gilbert relied on many aspects of the NMC's conduct also. Many of those criticisms are answered by the puzzle of the Defendant's conduct of her appeal. If she had pursued it actively and in a timely way (see below), she would have no grounds for complaining about many of the aspects of the NMC's conduct which she is dissatisfied with. In any event, those complaints, whether justified or not, do not transform the TWM claims and applications against the NMC into arguable claims. If and in so far as she had any arguable claim about the NMC's exercise of its statutory powers, she should have made a timely application for judicial review.
- Whatever the precise nature of 'persistence' for the purposes of Practice Direction 3C, there is persistence here, at least against the Trust. I have found that many of the claims issued and applications made by the Defendant against the Trust were TWM. They were issued and made over a period of years. There is a pattern of obsessiveness; the Defendant has repeatedly issued claims against the Trust loosely connected with her former employment by the Trust, its referral of her to the NMC, and its conduct at the NMC hearing. The most recent of those events, the NMC hearing, was five and half years ago. The referral was in 2006, and her employment ended in December 2005, but she has not worked for the Trust since June 2004. She has issued three claims against the NMC which have been the subject of a decision; either about her striking off, or about the NMC's failure or refusal to restore her to its register. Those claims, too, have gone on for years. Those claims were entirely, or substantially, TWM. She has made two applications against the NMC which were also TWM. There are two more claims against the NMC (and the Trust) which are currently stayed, which, I have held, are also TWM. Those claims revisit the matters already litigated against the NMC; in particular its failure or refusal to restore her to its register.
- A notable feature of the litigation against the NMC is that it overlaps with a period during which, or during part of which (if her appeal has been abandoned) the Defendant has had an extant appeal against the decision to strike her off, but seems to have done very little to pursue it. She has also been unable to explain the position about the appeal as is clear from my summary of the litigation history. I, too, am puzzled by the Defendant's apparent lack of enthusiasm for her statutory appeal. If the Defendant had prosecuted her appeal she could have made two points about the NMC decision to strike her off. The ET decision on the seventh claim, the transcript of the NMC hearing and the NMC's decision show that the ET found that the Defendant had responded more promptly to the Trust's investigation about the letter of 31 August 2004 than the NMC's panel was led to believe by the Trust's evidence. This is why the Trust wrote the November 2011 letter to the NMC. Those materials (apart from the NMC's decision) show that the NMC was also given inaccurate evidence about whether the Trust had warned the Defendant, before she wrote the 31 August letter, not to write it. The first factor was referred to four times in the NMC decision. Although the second was not, both may well have contributed to the NMC's decision to strike the Defendant off the register. These factors could be relied on to argue, in the Defendant's appeal, that a less severe penalty should be substituted for striking off. I do not say that an appeal based on those points would necessarily succeed, but I am mystified why the Defendant has not yet argued them at a hearing.
- I have no doubt, on these facts, that if I can, I should make a CRO restraining claims against the Trust. With some hesitation, I have come to the same conclusion about claims against the NMC. In the case of the Trust, there is a long history of TWM claims and applications. In the case of both, there is a real risk of the pursuit, or the making, of further claims. The fourteenth and fifteenth claims are stayed pending a decision on this application. The Defendant has threatened in correspondence, in response to this application, to make further claims against the NMC. Her counterclaim threatens proceedings in this court about her dismissal, for which there can be no possible legal justification.
- On the basis of the history so far, I have no sense that the Defendant now has or could have a good arguable claim in law against either Claimant about any aspect of their lengthy, but now largely past, dealings with her. Any claim for judicial review against the NMC would be long out of time; as Mr Solomon pointed out, the decision not to re-open her case was communicated to her on 20 September 2012. However, the history of the Defendant's claims gives no ground for the view that period which has elapsed since the Defendant had any substantial dealings with the Claimants will stop the Defendant making further TWM claims against the Claimants. The history shows a pattern of claims brought long after time has expired, with no explanation of the delay, and a pattern of seeking to revive issues and claims which have already been decided. There is nothing to suggest that that pattern will change, and material to show that it will not.
- The history also shows that the Defendant has persistently refused to take 'no' for an answer. Examples of this tendency are her attempts repeatedly to re-litigate issues which have already been decided against her, her reaction to the decision of the DJ, which I summarise, from his decision, in paragraph 58, above, and her repeated attacks on the ET and on its decision on the tenth claim (see paragraphs 65-69, above). In other words, she does not seem to be able to accept that once a decision has been made against her it is binding, unless and until successfully appealed. With many variations, she has, so far, kept returning to broadly similar themes; her claim that her dismissal was unfair, the facts that untrue evidence was given by Fresenius's employees in the course of the fourth claim, and to the NMC hearing by the Trust, and the fact that the NMC has struck her off and/or not restored her name to its register. Some of the Defendant's grievances are justified, as the findings of the ETs on the fourth and seventh claims show. But those grievances are not an inexhaustible source of distinct and arguable claims in law.
- Applying Practice Direction 3C by analogy, I do not consider that an ECRO would be appropriate, because I am not dealing with any proceedings such as are described in paragraph 3.(2).1 of Practice Direction 3C. I am considering a free-standing application for a CRO which has not been made in the course of other substantive proceedings between the parties. In any event, I do not consider that an ECRO would appropriate by analogy because I consider that it would be difficult to identify the proscribed issues with any, let alone sufficient, precision. Even if I could make an ECRO by analogy, I do not think that it would be sufficient to protect the Claimants from the risk of further claims which may or may not relate to the many broad themes which have so far engaged the Defendant's attention. The Claimant is the type of litigant described in paragraph 60 of Kumar, for whom an ECRO would not be appropriate and sufficient. She does not have an obsessive approach to one topic, but litigates in a much less focused way. I consider there is a risk that the Defendant may make a claim against one or other of the Claimants which does not share the general themes of the litigation so far, or varies an existing theme in a way which would be difficult to catch in the drafting of the order. I also consider that there is a sufficient risk that such litigation might materialise in the county court (where such claims have been brought by the Defendant in the past) and or the High Court (see the Defendant's counterclaim in these proceedings).
- I consider that I should make a GCRO which restrains the Defendant from bringing claims against the Claimants in the county court, the ET and the High Court. Given the long history, I consider that the GCRO should last, in the first instance, for the maximum possible period, that is, two years. The order must not include the Defendant's appeal to the Administrative Court from the decision of the NMC (in so far as it has not been abandoned). I do consider, however, that the fourteenth and fifteenth ET claims should be included in the GCRO. I will consider written submissions about the precise terms of the GCRO, and about any other consequential matters.
A practical suggestion
- Finally, in their oral arguments, both sides recognised that, now that this court has recognised that the power to make CROs under the inherent jurisdiction extends to orders to protect the process of the ET from abuse, it would be desirable for ETs, when they make decisions in weak claims, expressly to consider, and to make a finding on, the question whether the claim (or application) is TWM. I echo that, and hope that ETs will take notice of this suggestion. It will greatly help to have the views of the ET on the TWM issue in any case in which a respondent to ET claims applies for a CRO in this court. It may also be that those who draft the rules governing the procedures in the ET and in the EAT may wish to give some thought to this topic.
Published: 13/05/2016 10:17