Attorney General v Simmons

Thursday, 26th June 2003

1. LORD JUSTICE ROSE: The Attorney General seeks a Civil Proceedings Order under section 42 of the Supreme Court Act 1981 on the basis that the respondent has habitually and persistently, and without any reasonable ground, instituted vexatious civil proceedings or made vexatious applications in civil proceedings.

2. The respondent, whose letter to the court dated 24th February 2003, together with the enclosures which accompany it, I have read, says that he is medically unfit to defend this claim in person. He encloses medical certificates, which are some three or four years out of date, and which refer to him at that time suffering from a moderately severe depressive illness.

3. There is before the court no medical substantiation of the respondent's claim that he is unfit to defend this application.

4. The approach which the court has to adopt to applications of this kind is classically set out in the judgment of Lord Parker, Chief Justice in Re In Vernazza [1959] 1 WLR 622 at 624, the relevant passage in the judgment having subsequently received the blessing of the Court of Appeal in [1961] QB 197. Lord Parker said that, in considering whether any proceedings are vexatious, one is entitled to and must look at the whole history of the matter and it is not determined by whether the pleading discloses a cause of action. Indeed, that is the principle applied under the rules of court when application is made to strike out a pleading. Though the pleading may be in order, the court, in its inherent jurisdiction, is entitled to look at affidavits as to the history of the matter and if, in the light of that history, the action is vexatious, the pleading can be struck out and the action dismissed.

5. It is unnecessary for present purposes to refer to any of the other authorities which are pertinent to the exercise of this jurisdiction. If satisfied that the respondent has, in the terms of section 42 which I have quoted, behaved vexatiously, the court has a discretion as to whether or not to make the order which the Attorney General seeks, and has a discretion whether or not to make the order limited in time or without limit.

6. The origin of the litigation, to which in a moment I shall come, seems to have been the fact that the respondent's wife was unsuccessful in her application, some years ago, for the position of Post Master at Darnall sub-post office in Sheffield. It seems that the respondent and his wife took the view that the successful appointee was unsuitable for the post.

7. In consequence, three strands of litigation by the respondent have been identified by Mr Carr on behalf of the Attorney General as emanating from the respondent and as justifying the order which is sought.

8. There is a separate unrelated matter which gives rise to action number 16 of the 22 actions to which the affidavit evidence before the court refers, which is unrelated to the post office employment issue. This involves a somewhat intemperate claim against the occupant of a neighbouring caravan on the Beachcomber Holiday Park. Mr Carr does not suggest that that action of itself would be capable of supporting such an application as is here made. Indeed, he does not rely upon that action as being one of those which demonstrate alleged vexatiousness on the respondent's behalf.

9. The 21 actions on which reliance is placed can be grouped in the three strands to which Mr Carr has referred. First, there are claims brought against the Post Office and its employees by the respondent between the late 1990s and 2002. They are actions 2, 3, 7, 8, 9, 13, 17, 18, 19, 20 and 22.

10. Secondly, there are claims brought by the respondent on behalf of his wife against Post Office Counters Limited and/or the Co-operative Society and its employees, claiming victimisation or sexual discrimination in relation to the respondent's wife's unsuccessful application for the post to which I have referred, and victimisation is claimed against the Co-operative Society's employees arising from their refusal to provide access to documents. These are actions 1, 4, 5, 10, 11 and 21.

11. The third strand is claims by the respondent against the Communications Workers Union, which was the respondent's trade union. They are actions 6, 12, 14, 15, 17 and 20. It will be recalled that number 20 also included a claim against the Post Office. The basis of these claims against his union was the refusal, as the respondent alleges, of the union to represent the respondent properly, or at all, following his retirement from the Post Office on medical grounds in October 1998.

12. He wished to claim constructive dismissal. The union, according to the respondent, concluded that his prospects of success did not meet the criteria for union support and, in consequence, the six claims which I have identified were made against the union, based on their refusal to represent him.

13. In summary, all of the respondent's actions have been struck out or dismissed for want of jurisdiction and Mr Carr's submission is that they demonstrated those features of being scandalous and unreasonable which support Mr Carr's application.

14. It is, as it seems to me, unnecessary in this judgment to outline in any detail each of the 21 actions on which reliance is placed. It suffices to refer, by way of example, to some of those actions in order that the flavour of the respondent's litigious activities can be identified.

15. I start with action number 2, the first against the Post Office. It was proceedings before the Sheffield Industrial Tribunal in March 1998 and included a claim that the respondent's employers, the Post Office, had victimised him because of his involvement in his wife's sexual discrimination case against Post Office Counters. The respondent included in this claim an allegation that an interview conducted with him in January 1998 had been conducted in an intimidating and aggressive way.

16. In the Post Office's notice of appearance, it was said that the respondent had been interviewed because he had been taking photographs of the secure zone of the Post Office's premises, which he then used to make an offensive Christmas card, which he published at his place of work.

17. The Post Office sought a pre-hearing review. The claim was heard by the Sheffield Employment Tribunal on the 7th to 8th September 1998 and the Tribunal unanimously dismissed it.

18. In the course of so doing, they referred to the matter of Mrs Simmons' failure to secure the appointment which she had wished, and the Tribunal referred to the matter being "pursued relentlessly" ever since.

19. Paragraph 3 of the Tribunal's ruling refers to the respondent to the present application becoming obsessed by the matter:

"He involved MPs and ombudsmen and he began making allegations against the two people who had interviewed his wife, Mr McElhone and Mr Drinkwater. He sent some anonymous letters to the respondents and made allegations against Mr McElhone and Mr Drinkwater which were of a very serious nature".

20. Then in paragraph 5:

"He took some photographs of Mr McElhone in the respondents' security zone and at the beginning of December he used such a paragraph to produce and offensive Christmas card which he published in his place of work. At the same time the applicant sent a comprehensive indictment of what Mr McElhone is alleged to have done, not only to Mr McElhone's employees but also, apparently, to a television programme".

21. There is a reference in paragraph 10 to the present respondent's evidence before the Tribunal being "less than satisfactory" and "insulting that we should be asked to accept that a photograph that had been put before us was taken because of architectural interest in the building".

22. The respondent then sought to review the Tribunal's decision. The Tribunal observed that, by so doing, he was seeking to relitigate matters already decided, whereupon the respondent applied to the Employment Appeal Tribunal, which, on 16th March 1999, dismissed his appeal, following an application which he had made in February for leave to appeal to be withdrawn.

23. However, it seems that he changed his mind about that, because, on 14th May 2000 the following year, he applied for an extension of time in which to enter a Notice of Appeal, and, in so doing, made very serious allegations against others involved in the litigation, including a suggestion that counsel on the other side had perverted the course of justice and presented fabricated evidence to the Tribunal.

24. In June 2000, the Employment Appeal Tribunal refused the application. That decision the respondent appealed and, at a hearing on 27th November, which he did not attend, Lindsay J dismissed the appeal, pointing out that it had been submitted 539 days out of time and there were no grounds for granting an extension of time.

25. Furthermore, in the light of the serious allegations made by the respondent, but wholly unsubstantiated, Lindsay J ordered the respondent to pay the costs.

26. The respondent sought permission to appeal to the Court of Appeal, again alleging perjury and fabrication of documents and seeking the arrest of certain people for allegedly perverting the course of justice. On 4th October 2001, Peter Gibson LJ refused permission to appeal.

27. Nothing daunted, in November 2002, the respondent submitted a further Notice of Appeal, which, as the Employment Appeal Tribunal pointed out, was 1,447 days out of time. He was told he must seek an extension. He submitted an application for an extension of time, but the documents before the court do not disclose, although it is perhaps not difficult to guess, what the outcome of that application was.

28. Action number 7 is another example of litigation by the respondent against the Chairman of the Post Office. In December 1999, the respondent sought an injunction against the Chairman to investigate events in January 1996 in relation to Darnall Post Office and, in January 1998, in relation to the Royal Mail. It was ordered by Judge Bullimore, by consent, on 5th January 2000 that there should be judgment for the defendant to that action, and no order for costs.

29. Action number 9 was by the respondent against the Post Office. It was issued in December 1999 and included a variety of allegations against Post Office employees, including the Chairman. The allegations included the fabrication of evidence, what the respondent referred to as "psychological assault", conspiracy of defamation, deception and perjury.

30. Again, in January 2000, the respondent consented to judgment being entered in the defendant's favour. Thereafter, he sought, unsuccessfully, to have that judgment set aside.

31. Action 17 was brought by the respondent against the Post Office and the trade union and the DSS in Castleford. It was issued in January 2001. It alleged relentless persecution of the respondent and his wife by the Post Office. It was struck out by a District Judge as disclosing no cause of action and as being an abuse of process, and a Circuit Judge refused the respondents permission to appeal on the ground that there were no reasonable prospects of success.

32. Action number 18 was against a number of Post Office employees. He alleged they had assisted suppression, concealment, fabrication, destruction of requested evidential documents and other things in order to secure a miscarriage of justice at the Sheffield Tribunal on the 7th and 8th September 1998, which, it will be recalled, was the second of the actions on which reliance is placed.

33. In action number 18, the respondent sought damages of quarter of a million pounds. The claim was struck out by the Circuit Judge in May 2001.

34. Action number 20 was brought against Consignia PLC (sued as the Post Office) and against the Communication Workers' Union. The Sheffield Employment Tribunal received that claim in February 2002. It was for victimisation by virtue of exclusion from the union, and failure to provide the respondent with representation.

35. In July 2002, the Tribunal unanimously struck out the original application and the respondent was ordered to pay costs to the Post Office and to the union on the basis that he, the respondent, had conducted the proceedings in a manner which was vexatious, unreasonable, scandalous and misconceived.

36. On 9th September, the Post Office sought to enforce the award of costs. In that case, and in actions numbers 2, 13 and 22, and in October 2002, an order was made at Bradford County Court for the respondent to pay a sum of costs in excess of £7,000 within 14 days.

37. It does appear that the respondent has appealed against that decision to the Employment Appeal Tribunal, but the outcome of that is not known.

38. Action number, 22 issued in June 2002, is the most recent of the respondent's actions. It is a claim against the Post Office and a number of named individuals for deliberately misleading counsel, with a view to procuring a perversion of the course of justice in the September 1998 proceedings.

39. The defendants sought to have the claim struck out and, on 29th July, a District Judge ordered that judgment be entered for the defendant and that the respondent pay a sum in excess of £2,000 in respect of their costs.

40. The actions to which I have so far referred exemplify the first strand of the litigation. So far as the second strand is concerned, claims by the respondent on behalf of his wife against Post Office Counters, action 1 is an example. Proceedings were brought in December 1997 for unlawful sexual discrimination. The respondent's wife was represented. The claim failed on the unanimous decision of the Industrial Tribunal and an application by the respondent for review of that decision in April 1998 was refused by the Chairman, on the basis that there was no reasonable prospect of success.

41. Action number 4 was brought in the name of the respondent's wife, with the respondent named as her representative, against Post Office Counters. The allegations were of victimisation and sex discrimination in relation to the non-appointment as a sub-post master and, in particular, vis a vis the Meadow Hall Shopping Centre.

42. In the absence of his wife from a pre-hearing review by the Tribunal in February 2000, the respondent appeared. He was ordered to pay £100 as a condition of being permitted to continue taking part in the proceedings, on the basis that they had no reasonable prospect of success and were an attempt to relitigate earlier proceedings brought by the wife. By letter of 13th March, the respondent sought from the Tribunal extended reasons for their decision, which was said to be biased.

43. On 31st March, the originating application was struck out by reason of the non-payment of the deposit which had been ordered. The respondent appealed to the Employment Appeal Tribunal, alleging bias and perversity, but, on 5th December, the respondent obtained leave to withdraw the appeal and it was dismissed.

44. Action number 5 again involved the respondent acting as the representative of his wife. In October 1999, the claim was issued against Post Office Counters for deception, insider dealing, conspiracy, sex discrimination, willful negligence and unlawful interference. On 5th January, a Circuit Judge, on the defendant's application to strike out the claim, entered judgment for the defendants.

45. Action 21, the respondent being named as his wife's representative, was a claim in relation to employees of the Co-op in Sheffield. It came before the Sheffield Employment Tribunal on 29th April. It alleged that Mrs Simmons had been subjected to a vendetta, but it seems the claim was withdrawn at the end of July 2002.

46. So far as the third strand of litigation, that against the respondent's trade union is concerned, action number 6 was launched in October 1999, and claimed discrimination on the grounds of sex for not providing him with legal assistance or representation. He sought an injunction. In January 2000, by consent, judgment was entered for the defendants. But, ten months later in November, the respondent sought to have that judgment set aside. The court, it appears, declined to hear that application on the basis that the matter had been effectively closed by the terms of the consent order the previous January.

47. Action number 14 was issued in July 2000 and was a claim that the union had failed for three years to provide the care and representation against a tyrannical employer, which the respondent required. It was struck out by the District Judge in September 2000 and an order for costs was made against the respondent.

48. That action clearly provides a further example of the respondent relitigating the same issue when no reasonable ground existed for bringing the claim.

49. Action 15 was against the union. It was brought before the Employment Tribunal in July 2000 and a complaint was made of unfair expulsion or exclusion from the union. The union sought a preliminary hearing on the ground that the claim was vexatious and unreasonable and the Tribunal, on 22nd November 2000, struck it out as scandalous and unreasonable, and again made an order for costs to be paid by the respondent to the union.

50. I have considered the observations contained in the letter from the respondent dated 24th February 2003. They do not, as it seems to me, begin to provide any sort of answer to the application which today is made to this court. In my judgment, the litigation to which I have referred demonstrates that the respondent has habitually and persistently, and without any reasonable ground, instituted vexatious civil proceedings and made vexatious applications in civil proceedings.

51. Furthermore, I am satisfied that this case is an appropriate one in which the court should exercise its discretion to make an order under section 42, and that it should be made without limit of time.

52. The order, if my Lord agrees, will be in the form sought in the claim form by the Attorney General; that is to say, it will extend to proceedings in the respondent's name or in the name of any other person, including his wife.

53. MR JUSTICE DOUGLAS BROWN: I agree.