Totally without merit?
Labour & European Law Review Weekly Issue 476 29 June 2016
Although tribunals do not have the right to issue an order restraining a litigious claimant from bringing further claims, the High Court has held in Nursing and Midwifery Council v Harrold that it would be helpful if they could make a finding in weak claims as to whether they were totally without merit or not.
Ms Harrold was employed as a nurse until she was dismissed in December 2005. About two years later she was struck off the register of her professional body, the Nursing and Midwifery Council (NMC). She brought a series of claims against the NMC and the Trust for harassment, victimization and discrimination among other things, most of which were unsuccessful.
When she brought a 15th claim in 2014, the NMC and the Trust applied for a Civil Restraint Order (CRO) asking that Ms Harrold be denied the right to bring any further claims against them in the High Court, the county court or the tribunal, unless she had the permission of a High Court judge. Although the Civil Procedure Rules 1998 only apply to the civil courts, and not employment tribunals, the judge took the view that the High Court had the power to make the order on behalf of the tribunal.
The NMC and the Trust then returned to the High Court to ask for a General Civil Restraint Order (GCRO) to be issued against Ms Harrold. The High Court had to decide if the claims she had brought were totally without merit (TWM) and if so, whether it should use its discretion to issue a GCRO.
High Court decision
As tribunals (unlike county courts) are not expressly required to consider whether a claim or application is TWM, the judge had to individually review each of the cases brought by Ms Harrold, bar one which had been brought in the county court. Having done so, she considered that most were bound to fail and were indeed TWM.
She then considered whether it was proportionate to make the order requested. Although it would clearly interfere with Ms Harrold's right to bring future claims, the judge had to consider the cost she had incurred in bringing and losing so many claims to date. She also had to take into account the costs to the NMC and the Trust of having to fight the claims, the strain on tribunal resources in having to deal with them, and the implications for other tribunal litigants of such strain.
The judge found a pattern of persistence by Ms Harrold against the Trust which amounted to 'obsessiveness'. Although she had not worked for the Trust since June 2004, she persisted in issuing claims against them which were only loosely connected with her former employment and which, as the judge had found, were generally without merit. Likewise she had issued claims against the NMC which extended over a period of years, were entirely or substantially without merit and which revisited matters that had already been litigated. Although Ms Harrold had appealed the decision to strike her off the register, she had done very little to pursue it and could not explain this 'apparent lack of enthusiasm'.
The High Court judge therefore issued the GCRO restraining Ms Harrold from bringing claims against the Trust and the NMC in the county court, the tribunal and the High Court for two years. She also suggested that it would be very helpful if tribunals could, in future, consider and make an express finding of TWM in weak claims as that would help in any future applications for a CRO in the High Court.
This is obviously a very extreme case. In most situations it is sufficient for a tribunal to make use of deposit orders and in some cases the threat of striking out the claim to ensure that litigants in tribunal proceedings act reasonably.