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Court of Appeal rules on effect of civil proceedings orders

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In an important judgment handed down today concerning the rights of vexatious litigants in all courts and tribunals, the Court of Appeal in Williamson v The Bishop of London and others [2023] EWCA Civ 379 considered the effect of breach of the prohibition contained in a civil proceedings order made under s.42(1A) SCA 1981.

A Civil Proceedings Order (CPO) is imposed on vexatious litigants pursuant to s.42 of the Senior Courts Act 1981 (SCA). A CPO is directed “only at vexatious litigants, who are as often as not motivated more by a desire to enjoy the oxygen of the legal process than any desire for or expectation of redress from it.” It is a requirement of a CPO for a vexatious litigant to obtain prior permission to institute civil proceedings from a High Court judge. Williamson confirms the draconian effects of a CPO. If proceedings are filed without prior proceedings having been obtained, the proceedings are a nullity.

The Reverend Paul Williamson is the subject of a CPO. He filed ET proceedings for age discrimination without first having obtained the required leave. He later obtained leave and sought to argue that the permission obtained had retrospective effect. The ET held that it had no jurisdiction on the basis that the ET claim, filed in breach of the requirement to obtain prior permission, was a nullity. The EAT (Eady P) upheld that decision which is now reported at [2022] ICR 1670.

The Court of Appeal held (per Simler LJ with whom Popplewell LJ and Baker LJ agreed) that Parliament intended to make leave under s.42 SCA a jurisdictional bar to the institution of effective proceedings where a CPO has been made. Neither the prospective respondent nor the court is required 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. The requirement to obtain permission thus acts as a filter and a safeguard against vexatious litigation. The very inflexibility of the provision was an integral part of the protection it affords.

Edward Kemp successfully represented the Bishop of London and other Respondents leading Bláthnaid Breslin of Littleton Chambers and was instructed by Susan Kelly of Winckworth Sherwood LLP.

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