Under section 42 of the Senior Courts Act 1981, an individual who has had a civil procedures order (CPO) filed against them is not allowed to lodge tribunal claims (among other things) without first getting the permission of a High Court judge. In Williamson v Bishop of London, the Court of Appeal held that if a prospective claimant with a CPO fails to obtain permission before going ahead with a claim, it will be considered to be null and void.

 

CPO

A vexatious litigant is anyone who – in the view of the High Court – has habitually and persistently brought vexatious proceedings. The purpose of a CPO is to act as a safeguard against an unnecessary use of court time and resources on unjustified litigation and to protect prospective defendants from the expense which that involves.

 

Basic facts

In July 1997, Reverend Williamson was made the subject of a CPO. In April 2019, he issued tribunal proceedings, arguing that he had been discriminated against on the basis of his age when his parish appointment was terminated at age 70.

However, contrary to the terms of his CPO, he failed to get permission from a High Court judge before issuing the proceedings. The Bishop of London (known as the respondent) argued that this failure rendered the claim a nullity and that the claim should, therefore, be treated as though it did not exist.

In September 2019, Reverend Williamson asked the High Court either to allow him to continue with the proceedings he had already issued or give him permission to start them again. A High Court judge issued an order which permitted him to: i) pursue the existing proceedings, and ii) issue new proceedings.

Reverend Williamson then returned to the tribunal where he had lodged his age discrimination claim. However, before it could hear the merits of the claim, the tribunal had to consider the consequences of the fact that Mr Williamson had started civil proceedings without first obtaining leave of the High Court. The question essentially was whether the High Court judge’s order could operate retrospectively. The answer was significant because if the tribunal agreed with the respondent, Mr Williamson would not be able to pursue his existing claim, but if he issued it as a new claim, it would be well outside the time limit of three months less one day.

 

Tribunal and EAT decisions

At the preliminary hearing of his age discrimination claim on 8 January 2020, the tribunal ruled that the complaint should be treated as a nullity as it had been presented without prior permission of the High Court. As the claim did not therefore exist, there was nothing to which the High Court judge’s order could attach.

Reverend Williamson appealed on the basis that as the legislation under which a CPO can be made does not identify what should happen in the event of the order being breached, the courts should treat the breach as a procedural bar rather than a nullity. The EAT, however, disagreed, and dismissed his appeal.

He appealed again to the Court of Appeal, arguing that his claim should have been stayed pending the outcome of his retrospective application for permission.

 

Decision of Court of Appeal

Whilst acknowledging that procedural failures should not, as a matter of principle, lead to proceedings being deemed a nullity, the Court of Appeal added the proviso that it very much depended on the purpose and importance of the provision in question when considered within its statutory context.

It was clear in this case that parliament intended to make leave under section 42, a jurisdictional bar to claimants starting proceedings where a CPO had been made. It pointed out that neither the prospective respondent nor the court has to take action where a proposed claim is made by a vexatious litigant, unless and until the proceedings have the required leave of a High Court judge. Indeed, the very inflexibility of the provision was an integral part of the protection it affords.

As such, the court concluded that the express terms of section 42, read in light of the object and purpose of the section, imposed a jurisdictional (not just a procedural) barrier on a litigant subject to a CPO wishing to institute proceedings. As a result, Mr Williamson’s claim fell away. Although he now had permission to lodge a new claim, he was of course prima facie significantly out of time to do so.