Practice and procedure – Civil Procedure Order – section 42 Senior Courts Act 1981
The claimant is subject to a Civil Procedure Order (‘CPO’), which provides that he shall not initiate civil proceedings without the leave of the High Court. Notwithstanding that requirement, the claimant purported to bring a claim of unlawful age discrimination before the Employment Tribunal (‘ET’) without first obtaining the required leave. When the point was raised, the claimant made an application for retrospective permission. The Order made by the High Court (‘the Pittaway Order’): 1. granted the claimant permission to pursue the existing proceedings; in the alternative, 2. granted him permission to issue proceedings in the ET. When the matter returned to the ET, however, it was ruled that paragraph 1. of the Pittaway Order could be of no effect as it was not possible to give retrospective permission under the terms of a CPO, and the proceedings in the ET were a nullity (the ET following the High Court decision in HM Attorney General v Edwards [2015] EWHC 1653 Admin). The ET further considered that paragraph 2 of the Pittaway Order was expressed in the alternative, and related to the same basis of claim. The claimant appealed.
Held: dismissing the appeal
The ET had correctly ruled that the proceedings before it were a nullity; section 42(1A) Senior Courts Act 1981 imposed a substantive (not merely a procedural) barrier to the initiation of proceedings by the subject of a CPO. Although not strictly binding on the EAT, the decision in AG v Edwards was of persuasive authority and none of the exceptions identified in Lock and anor v British Gas Trading Ltd (No. 2) [2016] IRLR 316 EAT applied. In particular, contrary to the claimant’s submissions, AG v Edwards had not been decided per incuriam, was not manifestly wrong, and no exceptional circumstances applied. In any event, the decision in AG v Edwards was consistent with the statutory language and the purpose of section 42(1A). As for the Pittaway Order (although strictly academic given the decision reached on the approach to section 42(1A)), the ET had rightly construed the two paragraphs as being alternatives; that was apparent from the context of the application under consideration and from the language used.
Judges:
The Honourable Mrs Justice Eady DBE, President
Citations:
[2022] EAT 118
Links:
Jurisdiction:
England and Wales
Employment
Updated: 14 August 2022; Ref: scu.679862
