United Kingdom Employment Appeal Tribunal

Appeal No.  UKEAT/0478/05/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

                                                                                                                      At the Tribunal

                                                                                                               On 24 and 25 November 2005

                                                                              

 Judgment delivered on 16 December 2005

 

 

 

Before

THE HONOURABLE MR JUSTICE RIMER

DR B V FITZGERALD MBE LLD FRSA

MR D J JENKINS OBE

 

 

 

 

HER MAJESTY’S ATTORNEY GENERAL                                                          APPLICANT

 

 

 

 

 

 

MR S KUTTAPPAN                                                                                             RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

                                            APPEARANCES

 

 

 

 

 

For the Applicant	MR AKASH NAWBATT (Of Counsel) Instructed by: The Treasury Solicitors 1 Kemble Street London WC2B 4TS
For the Respondent	MR SUDARSANAN  KUTTAPPAN (The Respondent in Person)

 

 

SUMMARY

 

 

 

Whether a “restriction of proceedings order” under section 33 of the Employment Tribunals Act 1996 should be made against the Respondent.

THE HONOURABLE MR JUSTICE RIMER

 

1.         This is an application dated 2 August 2005 by Her Majesty’s Attorney General for an indefinite “restriction of proceedings order” under section 33 of the Employment Tribunals Act 1996 against the respondent, Mr Sudarsanan Kuttappan. The claimed basis of the application is that Mr Kuttappan “has habitually, persistently and without reasonable ground instituted vexatious proceedings in the Employment Tribunals or before the [Employment] Appeal Tribunal …”.  The Attorney General was represented before us by Mr Akash Nawbatt. Mr Kuttappan represented himself.

 

The applicable law

2.         Section 33 provides:

“33. Restriction of vexatious proceedings

(1) If, on an application made by the Attorney General or the Lord Advocate under this section, the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground –

(a) instituted vexatious proceedings, whether before the Certification Officer, in an employment tribunal or before the Appeal Tribunal and whether against the same person or against different persons, or

(b) made vexatious applications in any proceedings, whether before the Certification Officer, in an employment tribunal or before the Appeal Tribunal, the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order.

(2) A ‘restriction of proceedings order’ is an order that –

(a) no proceedings shall without the leave of the Appeal Tribunal be instituted before the Certification Officer, in any employment tribunal or before the Appeal Tribunal by the person against whom the order is made,

(b) any proceedings instituted by him before the Certification Officer, in any employment tribunal or before the Appeal Tribunal before the making of the order shall not be continued by him without the leave of the Appeal Tribunal, and

(c) no application (other than one for leave under this section) is to be made by him in any proceedings before the Certification Officer, in any employment tribunal or before the Appeal Tribunal without the leave of the Appeal Tribunal.

(3) A restriction of proceedings order may provide that it is to cease to have effect at the end of a specified period, but otherwise it remains in force indefinitely.

(4) Leave for the institution or continuance of, or the making of an application in, any proceedings before the Certification Officer, in an employment tribunal or before the Appeal Tribunal by a person who is the subject of a restriction of proceedings order shall not be given unless the Appeal Tribunal is satisfied –

(a) that the proceedings or application are not an abuse of process, and

(b) that there are reasonable grounds for the proceedings or application.

(5) A copy of a restriction of proceedings order shall be published in the London Gazette and the Edinburgh Gazette.”

 

3.         As guidance to the relevant principles, we were referred to the Divisional Court’s decision in Attorney-General v. Barker [2000] 1 FLR 759, relating to an application for a civil proceedings order under section 42 of the Supreme Court Act 1981, whose terms are similar to those of section 33. Lord Bingham of Cornhill, Lord Chief Justice, gave the leading judgment, with which Klevan J agreed, and pointed out that before the court can make an order under section 42 it must first be satisfied that the statutory precondition of an order is satisfied, its equivalent in the present case being that prescribed by section 33(1). If it is so satisfied, the court then has a discretion as to whether to make the order sought. Lord Bingham said, at page 764:

“… ‘Vexatious’ is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all. …

From extensive experience of dealing with applications under s. 42 the court has become familiar with the hallmark of persistent and habitual litigious activity. The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.”

 

4.         In the event, the court made no order against Mr Barker, being satisfied by his assurance that he would not repeat his previous vexatious conduct.

 

5.         Cases of allegedly vexatious litigants in ordinary civil litigation usually concern repeated claims or applications against the same defendant or defendants in respect of a particular matter by which the litigant has become obsessed.  In the employment law field, what is more commonly seen is the making of repeated tribunal applications of a like type against different respondents, the claims often following an unsuccessful job application. Section 33(1)(a) shows, however, that this difference is no bar to a case being made out under section 33. 

 

6.         We were also referred to this tribunal’s decision in Attorney-General v. Wheen [2000] IRLR 461. Mr Wheen had issued 13 separate applications, the Attorney General sought a restriction of proceedings order against him and this tribunal made the order. The following passages in Lindsay J’s judgment are pertinent:

 

“8. …Unlike the position in the Barker case, we have had no indication from him [Mr Wheen, who did not attend the hearing] that he will not launch proceedings in the future, nor any suggested mechanism (for example, that he would not launch proceedings unless he had previously received favourable advice from solicitors or counsel or something along those lines) that he might be willing to impose upon himself. We do not suggest that it would be reasonable to demand that from him or that it would have sufficed to avoid an order under s. 33, but we do make the point that he offers nothing of any such kind at all as to his future conduct.

9. We have mentioned that many of his claims involve discrimination. Discrimination is generated or can often be generated merely by the personal characteristics of the individual concerned. It may fairly be said that for that reason facts justifying the launching of a claim for discrimination are more likely to recur to an individual than are, for example, the facts of an ordinary civil cause of action. Such a thought leads to us [sic] to be particularly cautious in relation to s. 33 and its application to discrimination cases. But 13 failed sets of proceedings as explained in Mr Lettrodt’s affidavit do represent a substantial argument that there have been vexatious proceedings launched not upon reasonable grounds. Moreover, if an order is made under s.33, then, as its own terms indicate, that is no total bar to Mr Wheen in the sense that he would still be able to ask for leave to proceed in the way that the section contemplates. If he is able to show to the appeal tribunal, to whom he makes application, that despite the making of the s. 33 order, some situation has arisen which truly justifies proceedings going forward upon reasonable grounds, then there is no reason why he should contemplate not being given leave to proceed.

10. We bear in mind the unusual feature of discrimination which we have mentioned and that it can reoccur and be vicious, but we do not see that that, of itself or in combination with other features relied upon by Mr Wheen, is any substantial force against the exercise of the discretion in favour of the Attorney General’s application.

11. Further, in favour of the Attorney General’s application at the discretionary level, we have to recollect that one object of s. 33, as is emphasised in the Barker case, on similar legislation, is to protect respondents from the cost and anxiety of proceedings which are vexatious. But we would wish to add that another object is to be borne in mind and that is this: in the very busy employment tribunals up and down the country and in the very busy Employment Appeal Tribunal, giving time to Mr Wheen’s unnecessary proceedings, proceedings without reasonable grounds, proceedings with no real prospect of success, is to deny that very same time to parties who have real grievances. The effect is that those with real grievances have their hearings delayed. That is a matter we are entitled to take into account and it further inclines us to exercise the discretion in favour of the Attorney General’s application. …”

 

7.         Mr Wheen appealed to the Court of Appeal, this time appearing in person. The appeal was dismissed (see [2001] IRLR 91). Keene LJ gave the leading judgment. He made the point (in paragraph 26) that, in applications under section 33, it is not proper for this tribunal to go behind the decisions in the individual tribunal cases that the respondent has brought; and that this tribunal can rely on the decisions of those tribunals that the particular applications before them were frivolous or vexatious or an abuse, or had no reasonable prospect of success. In paragraphs 37 and 28, Keene LJ rejected as “wholly unarguable” the point that a section 33 order infringes the human rights of the respondent to bring proceedings before employment tribunals. He said that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms confers no absolute right of access to the courts, but that a balance has to be struck under it between the right of the citizen to use the courts and the rights of others (and of the courts) not to be troubled with wholly unmeritorious claims. Moreover, a restriction of proceedings order does not impose an absolute bar on the respondent’s right of access to a tribunal, but permits such access so long as permission is first obtained. Mummery LJ agreed with Keene LJ, and Nourse LJ delivered a concurring judgment.

 

The factual background

8.         The case made by the Attorney General is set out in the affidavit of Catherine Edwards sworn on 1 August 2005, to which are annexed two volumes of exhibits. Mr Kuttappan answered that evidence with an affidavit sworn on 22 September 2005. The first volume of Mrs Edwards’s exhibits opens with a Schedule of the claims brought by Mr Kuttappan in employment tribunals and summarises in relation to each known claim the date when it was brought, the tribunal at which it was brought (in fact, all were brought in the London South tribunal), the respondent to it, the nature of the claim and the outcome. The remainder of the two volumes contains documentation relating to each such known claim. Since the closing of the evidence, documentation relating to further claims has also been produced, and we were referred to it.

 

9.         Mr Kuttappan, a British Citizen, is an Asian of Indian origin. He was born in Kerala State on 30 November 1957. He has the degrees of BA and LL.B from the University of Kerala (although he told one tribunal that the latter degree is the equivalent of an A-Level in law in this country), and he practised law in India for three years, handling criminal and civil cases. He came to the United Kingdom in 1987 to join his wife. Since then he has had a variety of jobs, including those of a security officer, a financial consultant, a trainee conductor with British Rail and an administrative assistant with Customs. One tribunal found that during 1998 his career was that of a freelance equal opportunities/employment law adviser. He has been active in voluntary work, including Hindu and Asian interests. He has in particular devoted himself to issues of equal opportunities and racial equality and has described himself as an “equality campaigner.” He was a member of the steering committee to establish a public law centre in Croydon, was the co-ordinator of the Croydon Asian Group, was Secretary of the former Croydon Hindu Cultural Centre and was a member of the Croydon Voluntary Action and of the Croydon Asian Resources Centre.

 

10.       The evidence shows that between 1996 and April 2005 he commenced at least 33 claims in the London South employment tribunal, his most recent application being presented on 25 April 2005. Such has been Mr Kuttappan’s contact with that tribunal that his telephone accounts revealed it as his “best friend”. The two main targets of his claims have been his former employer, Customs, against whom he brought at least 12 claims; and the London Borough of Croydon (“Croydon”), all but one of his nine claims against them having been based on complaints arising out of failed job applications. He has also brought claims against a miscellany of other respondents. Most of his applications included claims against individual respondents (for example, he joined Croydon’s Chief Executive, Mr David Wechsler and Customs’ Chairman). All claims included allegations of race discrimination; and all or most included allegations of victimisation. Some included allegations of sex discrimination. The great majority of his claims failed (many of his claims including a multiplicity of complaints), but he did achieve successes in at least five contested complaints, although two of them were described by the tribunals as “technical” victories and achieved only modest compensation. In two others he recovered compensation totalling just under £5,700. As for the fifth, the evidence does not disclose what, if any, remedy he achieved. All his successes were in respect of claims which were brought together with other claims which failed.  He has also issued at least four review applications, all of which failed, and has presented at least nine appeals to this appeal tribunal. His various proceedings have occupied over 125 days of tribunal time. He has also acted as a representative for others in employment tribunal proceedings. We will summarise his claims, our “Claim” numbering following that in Mrs Edwards’s exhibits. We also summarise the additional applications which have been unearthed.

 

Kuttappan v Croydon and Others

Claim 1

11.       This was presented in June 1997. The respondents were Croydon and three others, including Kingshill Security Ltd, which Mr Kuttappan claimed was his former employer. He alleged race discrimination against all. The claim followed his dismissal as a security officer at the Water Palace, a swimming pool complex owned and managed by Croydon and at which Kingshill had been a contractor whose contract Croydon had terminated. Mr Kuttappan detailed his case by a lengthy and discursive statement. The meat of it was not reached until page six, where he alleged that Croydon sought to be rid of him by tendering a new security contract to DTZ Debenham Thorpe (another respondent), who were allegedly instructed not to employ him at the Water Palace. DTZ was said to have used their own security company for the job, S and R Security Company (also a respondent), and Mr Kuttappan alleged that, in order to hide the impression that they were discriminating against him racially, Croydon instructed DTZ not to employ anyone previously employed by Kingshill at the Water Palace. The result was, he said, that S and R employed no former employees.

 

12.       The hearing before the tribunal, chaired by Mr I. M. MacInnes, occupied four days in August 1999. The tribunal’s extended reasons dated 1 October 1999 explained why all claims were dismissed. They explained that Mr Kuttappan was a:

 

 “… public spirited citizen and vigorous campaigner on a wide range of public issues and specifically on all areas of race and sex discrimination and minority rights. He has campaigned vigorously on such issues with [Croydon]. This has involved extensive correspondence from the Applicant to Council members and senior officers of [Croydon], the submitting of questions to public meetings and the attendance at public meetings of LBC. In the course of these campaigns the Applicant has, among other matters, had cause to complain to the Council by question and otherwise that the present Chief Executive, Mr David Wechsler, was appointed without the vacancy for his position being advertised and that this constituted discrimination under the Race Relations Act as no applications were invited from suitable candidates of ethnic minorities.”

 

13.       The tribunal did not accept Mr Kuttappan’s account of the telephone calls on which his discrimination case was largely based. They rejected all his claims, including a claim for wrongful dismissal. Mr Kuttappan appealed to this tribunal, the outcome of which the papers do not record.

 

Claim 2

14.       All Mr Kuttappan’s other claims against Croydon followed unsuccessful applications for jobs ranging from street warden to Chief Executive. Claim 2 was presented in April 1998 and was heard by a tribunal chaired by Mrs Gleeson. Mr Kuttappan achieved a rare success, but it was reversed on appeal. The tribunal explained in their extended reasons sent to the parties on 25 July 2000 why they upheld his claim that the failure to open to competition the Chief Executive vacancy - in which he was known to have an interest - amounted to discrimination against him contrary to section 4(1)(a) of the Race Relations Act 1976. They referred to Claim 1, and said that “it was apparent … that [Mr Kuttappan] was considered a thorn in the side of the leading members and senior officers of [Croydon]” and that he had pressed “… for more representation for ethnic minorities in the Council’s Officers and the Chief Executive in particular.” They said that, where there was a conflict in the evidence, they preferred Mr Kuttappan’s evidence. They said that the current Chief Executive, Mr Wechsler, had been appointed in 1993 in breach of Croydon’s Equal Opportunities Policy, a matter that Mr Kuttappan had exposed by a public question he put to the Council in December 1994. They said, in paragraph 46, that “The applicant’s twenty page submission is detailed and cogent, showing clear evidence of his legal training and analytic abilities.” At a remedy hearing on 12 September 2000, they awarded him compensation of £17,500 for injury to feelings. He had conceded that he would never have been appointed to the post of Chief Executive (although at an earlier stage in the proceedings he had asserted that he had “a reasonably good chance” of being selected) and so his claimed detriment went no further than that. They said that Croydon’s attitude towards Mr Kuttappan had been high handed and at times mendacious.

 

15.       Croydon appealed against that decision to this tribunal. The appeal was heard, with two other appeals, by a panel presided over by Mr Commissioner Howell QC and the tribunal’s reserved judgment was delivered on 14 June 2002. On this occasion, Mr Kuttappan was represented by Mr J. Quigley, a solicitor. This tribunal allowed Croydon’s appeal on “the single and unanswerable” ground that the employment tribunal had misdirected themselves as to whether Mr Kuttappan had suffered either detriment or less favourable treatment. There could be no detriment by being deprived of the opportunity “of going through the motions of making what is not a genuine job application at all, but one which has no chance of success and is made solely for the ulterior purpose of raising equal opportunities issues”, the latter part of that finding being based on statements by Mr Quigley as to Mr Kuttappan’s intentions in bringing the claim. This tribunal’s decision showed that Mr Kuttappan’s claim to the employment tribunal had been misconceived in fact and law and had been pursued for an ulterior purpose. This tribunal set aside both the decision on liability and the award of compensation. They described Mr Kuttappan’s application, involving as it did the pursuit of a separate agenda, as having been “a misuse of the overburdened Tribunal machinery … especially where inflammatory and abusive allegations are made under the protection of the tribunal procedure.”

 

Claim 3

16.       In late 1998, Mr Kuttappan applied unsuccessfully to Croydon for the job of camera enforcement officer. He issued a claim against Croydon and six individual respondents (Croydon officers, including Mr Wechsler) on 29 January 1999, alleging race and sex discrimination and victimisation. After a five day hearing in September 1999, a tribunal chaired by Mr A. Bano dismissed all claims. In paragraph 17 of their extended reasons promulgated on 3 November 1999, the tribunal referred to the fact that Mr Kuttappan had explained that he had deliberated assembled a document bundle incorrectly, with the claimed objective of establishing the truth about the respondents’ actions. They warned Mr Kuttappan of their power to strike out proceedings which were being conducted scandalously, frivolously or vexatiously, but as he abandoned his chosen course, the tribunal did not consider that further.

 

17.       Mr Kuttappan applied on 15 November 1999 for a review of that decision, asserting bias and prejudice on the part of the tribunal and complaining about the inclusion of Mrs A. Aziz as a wing member. The application was refused by the Chairman as having no reasonable prospect of success.

 

18.       Mr Kuttappan appealed to this tribunal against the substantive decision and against the refusal to review it. The former appeal was based on allegations of bias and prejudice and complained of the inclusion on the panel of Mrs Aziz. The latter appeal was based on like points. The appeals came on for their preliminary hearings on 4 October 2000, Lindsay J, the President, presiding. Mr Kuttappan was represented by Miss Brocks of counsel, under the Employment Law Appeal Advice Scheme. The review appeal was dismissed at that stage. As the substantive appeal raised factual issues as to the conduct of the hearing, it was allowed to proceed and directions as to evidence were given in line with the procedure explained in Facey v. Midas Retail Security and Another [2000] IRLR 812, paragraph 39 (a case familiar to Mr Kuttappan, who had represented the appellant).

 

19.       The substantive appeal came on for hearing on 25 January 2002, Bell J presiding. Mr Kuttappan appeared in person. The tribunal allowed him also to run an argument of alleged perversity in the employment tribunal’s decision to reject his victimisation claim. The tribunal reviewed Mr Kuttappan’s 12 allegations of bias and misconduct and rejected all his grounds of appeal.

 

Claim 5

20.       This claim, commenced in August 2000, was a sequel to Claim 2. Mr Wechsler was re-appointed as Croydon’s Chief Executive in 2000, and so Mr Kuttappan presented another tribunal claim alleging race discrimination (direct and indirect) and victimisation, asserting that he “was genuinely interested to apply for the position of the Chief Executive”, that it was “also my intention to apply for the position” and that he had repeatedly asked Croydon to be given the opportunity to apply. He asserted that Mr Wechsler’s re-appointment was “without good reason but with the malicious intention of unlawfully discriminating against” him and other would-be applicants. During the hearing, however, he conceded that, if he had been permitted to compete for the position, he would not have been appointed (during his cross-examination he disclaimed any management experience). This claim was presented after the employment tribunal’s decision on liability in Claim 2, but before their decision on remedy; and of course nearly two years before Mr Kuttappan’s success at first instance in Claim 2 was reversed by this tribunal.

 

21.       The claim was heard by over four days in April 2001 by a tribunal chaired by Mr A.M Snelson. For written reasons promulgated on 13 June 2001, the tribunal dismissed all claims. They described Mr Kuttappan as having presented his case with courtesy and skill, but also referred to the need to remind him to keep his cross-examination within reasonable bounds and to understand that a tribunal’s time is not an unlimited resource. They explained, however, how he was in fact allowed considerable latitude. They disagreed with the views of the Claim 2 tribunal that the appointment of Mr Wechsler as Chief Executive in 1993 had breached Croydon’s Equal Opportunities policy. They found that there was no vacancy for the post of Chief Executive in 2000 and so the claim failed. If wrong on that, they found that Mr Kuttappan had applied for the post, but also found no basis for inferring direct discrimination against him, about whom they said that “a large problem for [him] is his mistaken perception of his own importance in the story.” They dismissed his claims of indirect discrimination and victimisation, and disagreed with the Claim 2 employment tribunal that he had suffered any relevant detriment. They said they did not question his motives or good faith, but they did go on to say:

 

“35. … Nor do we doubt that there is much to be done to combat unlawful discrimination and promote genuine equality of opportunity in many organisations, including the Respondent. Nonetheless, this litigation, which has been brought and pursued at great public expense, is, in our view, misconceived and entirely devoid of legal merit. It is important to appreciate what can be achieved by litigation and what cannot.  Not all campaigns can properly be conducted through the courts and tribunals. Moreover, in the context of discrimination, Parliament has recognised the need for enforcement mechanisms and provided for the creation of bodies (the Commission for Racial Equality (‘CRE’) being the relevant one for present purposes) designed to secure compliance with the law and the promotion of equality of opportunity. It is not for any individual (however well-intentioned) to arrogate to himself the role which those bodies exist to discharge. … We have no doubt that the Applicant brought this case having been much encouraged by the success of the earlier proceedings. Following the disappointment associated with the outcome here, we hope that he will pause and think carefully before resorting to litigation of this kind again. To do otherwise might be regarded as unreasonable.”

 

22.       Mr Kuttappan appealed against that decision to this tribunal, his appeal coming on for hearing at the same time as Croydon’s appeal against the Claim 2 tribunal decision. This tribunal agreed with the reasoning of the Claim 5 tribunal and dismissed the appeal. They endorsed what had been said in paragraph 35 (just quoted), a matter to which we referred in dealing with the appeal against the Claim 2 decision.

 

Claim 8

23.       This claim was presented in March 2002 against Croydon and three individuals and followed Mr Kuttappan’s unsuccessful application for the post of Incident Controller, for which he was not short-listed. The claim was heard by a tribunal chaired by Mr D.N. Milton over four days in October 2002 and January 2003. Mr Kuttappan appeared in person. The tribunal’s extended reasons were promulgated on 25 June 2003. Mr Kuttappan’s claim of direct race discrimination was dismissed but his claim of race discrimination by way of victimisation succeeded against Croydon, although the tribunal found that none of the individual respondents should be held liable for such victimisation. The tribunal criticised Mr Kuttappan for unnecessarily wide-ranging cross-examinations (paragraphs 46 and 47). The victimisation claim succeeded because Croydon was biased against Mr Kuttappan by their knowledge of that he was a previous litigant who had made a variety of complaints and caused a lot of difficulties for Croydon. The tribunal found that this reaction by Croydon was nothing to do with Mr Kuttappan’s race but because, putting it shortly, he was a known troublemaker on matters of race discrimination: Mr Kuttappan had drawn attention to his litigious history in his job application.

 

24.       Following the subsequent remedy hearing on 12 December 2003, and for written reasons sent to the parties on 11 March 2004, the tribunal awarded Mr Kuttappan compensation of £250. They made these findings:

 

“24. It was put in a general way that the Applicant is prone to making ‘tactical, speculative job applications’ with a view to either taking proceedings or at any rate setting up some kind of situation which may lead to allegations of race discrimination and in turn perhaps to formal proceedings. In our particular case, we could think of no reason why the Applicant formulated his application and made his application at that time, unless he was looking to create a situation which might in due course enable him to pursue just the kind of generalised, sweeping allegations about race discrimination and victimisation which he sets out in that written document [his job application].

25. In those circumstances, our primary finding is that the Applicant had no real genuine intention of making a serious job application which he would take up if he had been short-listed for interview and then in turn interviewed and moved to the next stage of being in a position to put forward a case that he should be selected for employment at an interview process. On this primary finding of fact, our earlier conclusion on liability is that the Applicant has won only a technical, legal victory on his victimisation claim and the award in these circumstances would not be a very high award. It is an award which would not reflect any potential loss of earnings claim at all. Equally, as to the general heading of injury to feelings, the award also would be at a very low level in the light of our findings. …

28. … we believe that we are entitled to treat this as a very unusual and rare case where we are entitled to go below the bottom of the lower bracket of £500 [a reference to the brackets identified in Chief Constable of West Yorkshire Police v. Vento (No. 2) [2002] IRLR 177] and award, in effect, a nominal sum of £250, simply to mark the fact that there has been a procedural conclusion of victimisation in this case.

29. … We would observe that in any event it is, in our judgement, absurd that in the end we have spent some four days in the Tribunal and two days in chambers dealing with the rejection at short-listing stage of the Applicant. We have no hesitation in recording that the length of these proceedings and the volume of paperwork has been mainly generated because of the Applicant’s approach of exploring every single aspect to do with race and procedural issues to do with this quite simple and routine job selection exercise on the one hand and much more wide-ranging questions within the London Borough of Croydon generally, as evidenced by, in the end, two quite substantial bundles of documents”

 

25.       The tribunal were, therefore, making the point that the job application was not a serious one, but was merely used as yet another opportunity for Mr Kuttappan to take centre stage in an employment tribunal as part of his continuing equality campaign against Croydon. Mr Kuttappan appealed against the remedy decision to this tribunal, but his appeal was dismissed at the preliminary hearing (HH Judge Pugsley presiding) on 27 August 2004.

 

 

 

Claim 11

26.       This claim, presented in May 2003, followed an unsuccessful application for a job as a street warden. Mr Kuttappan was short-listed but was unsuccessful. The respondents were Croydon and three individuals. The claims were heard over five days in December 2003 by a tribunal chaired by Mr A.M.Snelson. The tribunal’s reasons were sent to the parties on 24 February 2004. They explained why Mr Snelson refused Mr Kuttappan’s request that he should recuse himself on the ground of alleged bias, and a different tribunal constituted. They recorded Mr Kuttappan’s withdrawal of an application to join yet another respondent. They explained why his complaints of direct race discrimination and victimisation were dismissed.

 

27.       The tribunal referred (in paragraph 2) to “the huge number of cases” that Mr Kuttappan had brought, going on to say that:

 

“2. … We have been struck by the surprising lengths to which he has gone to draw attention to his litigiousness. Indeed, the unsuccessful job application on which this case is based was so liberally stocked with references to his particular interest in ‘equalities’ issues and his extensive experience as an Employment Tribunal litigant that one could be forgiven for thinking that it was positively designed to deter the prospective employer from selecting him. …

3. … The hearing of this straightforward case occupied the Tribunal for all of the five days allotted to it, and, if not strictly policed, would have overrun even that unreasonably generous allocation. The bundle (in two volumes) runs to 637 pages. In our view, litigation on this scale is grotesquely out of proportion to the simple issues involved. …”

 

28.       In paragraph 24, after dismissing the claims, the tribunal said:

 

“In the course of cross-examination of the Respondents’ witnesses, the Applicant on several occasions raised the question whether they had judged his job application to be ‘bona fide’. We have to confess that as the case proceeded, we could not help wondering ourselves about that matter. Nonetheless, it was not put to the Applicant in terms that his job application had been bogus or a mere device in order to set up an Employment Tribunal claim. Moreover, that matter is not, we think, strictly relevant to the liability questions which we have been required to address. It might well be relevant if the Tribunal was dealing with, for example, a remedy hearing or a costs application. However, neither of those matters is (at this stage at least) before us. In those circumstances, we do not think that it would be appropriate to offer a view in these reasons as to whether this was or was not a bona fide job application.”

 

29.       Mr Kuttappan appealed to this tribunal against that decision, his grounds of appeal running to eight pages. They included assertions that the decision was insufficiently reasoned and that the chairman was biased. The appeal was directed to proceed to a full hearing, but was adjourned by a panel presided over by HH Judge Peter Clark on 15 June 2005 (by inference from the order, it was adjourned at least in part until a transcript of the Court of Appeal’s decision in Lodwick v. London Borough of Southwark was available, a case in which the EAT reference is UKEAT/0116/05/DA.  We understand that this appeal has not since been progressed further.

 

Claim 14

30.       This case was presented following another unsuccessful application for the job of a street warden. Mr Kuttappan had been short-listed and interviewed, but not selected. The respondents were Croydon and three individuals. The hearing occupied four days in September 2004 before a tribunal chaired by Ms M. E. Stacey. The complaints, of race discrimination and victimisation, were all dismissed for the written reasons promulgated on 4 January 2005.

 

Claim 17

31.       In 2005, over nine days in March and June, a London South tribunal chaired by Mr D.N. Milton heard Mr Kuttappan’s complaints against Croydon and five individuals (including Mr Wechsler, the Chief Executive) of race discrimination and victimisation. The claims followed his failed application for selection for possible job opportunities in the posts of Housing Needs Officer, Street Warden, Parking Attendant and Neighbourhood Warden. The claims were identified as raising at least 12 issues and various sub-issues. On day 3, Mr Kuttappan withdrew his claims of direct race discrimination, after which his claims were confined to claims of victimisation. On day 9, he withdrew his claims against two of the individual respondents. The claims generated a “massive quantity of communications” (see paragraph 14), and so the pattern was the same as most of Mr Kuttappan’s cases. The claims failed and were dismissed, the tribunal referring in the course of their reasons to “…one of the many absurd arguments put forward by the Claimant …” (paragraph 80); “… this sort of fail safe request by the Claimant is completely misconceived” (paragraph 89); “… the Claimant’s approach … is misconceived and invalid” (paragraph 103); their finding that “the Claimant’s allegations in this respect really to be fanciful” (paragraph 116); that they “found particularly unattractive and unimpressive the Claimant’s tortuous point …” (paragraph 125); that “We found that argument of the Claimant to be another of his totally misconceived arguments” (paragraph 136); that “We found it frankly preposterous for the Claimant to assert that …” (paragraph 141); that “We find that this again is a very unmeritorious part of the Claimant’s whole case” (paragraph 145); that “… we find that [the Claimant] is completely unjustified in that criticism” (paragraph 153); that “In our own Tribunal he sought to draw absurd distinctions between the responses given to other dissatisfied job applicants and himself” (paragraph 155). They said:

 

“157. Furthermore the object of such a complaints procedure is to seek to establish whether there has been any irregularity and in particular any unfairness or bias in the recruitment exercise. In our own very full inquiry we have found that there was no victimisation of any kind and that in effect therefore there was no real basis for the Claimant to raise a complaint at all….

161. We do to a certain extent echo Mrs Parkes’ general comments in her final letters as to what is the Claimant’s overall intention with regards to his employer. He purports to claim that with one breath the Respondent is an employer with whom he is very anxious to work and become employed and for whom he would be a useful and valuable asset and yet at the same time it is clear that in these proceedings at any rate and so far as we can tell from the correspondence and references to other cases in other proceedings as well he has sought to mount a wide ranging attack on a whole variety of manager that they and many of their colleagues with whom they may occasionally chat are all biased against him.”

 

Claim 18

32.       This claim was presented in April 2005 and named Croydon and three individuals as respondents, including Mr Wechsler. It followed Mr Kuttappan’s unsuccessful application the post of Neighbourhood Warden. Directions for a two-day hearing were given on 14 June 2005, but the evidence does not disclose the further history of the case, and we infer it has not been heard or decided.

 

Kuttappan v H.M. Customs & Excise (“Customs”)

33.       Mr Kuttappan was employed by Customs as an administrative assistant from 6 September 1999 until his dismissal on 10 June 2002. He issued at least 12 separate claims against Customs (the Attorney General’s evidence asserts that it was 13, but 12 is our calculation from the papers we have seen).

 

Claim 4

34.       In October 2000, a tribunal chairman (Mr G. Meeran) made orders for the consolidation of two applications Mr Kuttappan had made against Customs alleging race and sex discrimination. In 2001, over 13 days, a tribunal chaired by Ms C. Hyde heard those two consolidated applications and also two other applications that Mr Kuttappan had since presented, also alleging race and sex discrimination. These claims, therefore, account for four of the 12. The respondents included two individuals. The tribunal’s 45-page reasons (promulgated on 5 December 2001) identified Mr Kuttappan’s claims as breaking down into 12 separate issues (certain of which also broke down into sub-issues), two of which Mr Kuttappan withdrew and the other 10 of which were decided against him. The tribunal dismissed all claims of discrimination and victimisation. In relation to one head of complaint (issue 4) they said that a fundamental flaw in Mr Kuttappan’s allegation was his inability “even to describe the nature of the unfavourable intervention Mr Cupis was supposed to have made, or the entry on his PA which his unfavourable intervention led to.”

 

35.       On 13 December 2001, the tribunal ordered Mr Kuttappan to pay £3,000 costs to the respondents, explaining their decision in reasons promulgated on 24 January 2003. They there rejected the respondents’ assertion that he had brought the proceedings vexatiously, but they did find that the bringing of the claims was misconceived (which we understand to mean having no reasonable prospect of success) and that Mr Kuttappan had conducted them unreasonably. They said that only in respect of one issue, issue 10, had they found the primary facts as alleged although they still did not constitute race or sex discrimination or victimisation. They said that “The Applicant failed to listen to voices of caution or take on board courteous exhortations for him to consider the merits of the case objectively.” They referred to the obvious expense to which the respondents had been put and said that Mr Kuttappan had “pursued this unjustified litigation regardless of the consequences.”

 

36.       Mr Kuttappan applied on 27 December 2001 for a review of the substantive decision. In his amended application for a review, dated 11 February 2002, he asserted that the tribunal seriously lacked honesty, integrity, impartiality and the ability and willingness to find out the fullest facts and administer justice without fear or favour. He complained that evidence had been ignored and that conflicts of evidence had almost always been resolved in the respondents’ favour. The chairman refused the application on 25 March 2002 as having no reasonable prospect of success.

 

37.       Mr Kuttappan appealed to this tribunal against the substantive decision, against the refusal of his review application and against a later decision by the employment tribunal on 23 May 2002 refusing his application that an application by Customs for costs against him should be dealt with by a different tribunal, his complaint being that the chairman was biased. The preliminary hearing came before HH Judge Serota QC and two members on 6 September 2002. Shortly before the hearing, Mr Kuttappan sought an adjournment saying that, if it was not granted, he did not wish to pursue the appeal; and he was neither present nor represented at the preliminary hearing, at which this tribunal nevertheless dealt with his appeal on its merits.

38.       The grounds of appeal were based on attacks against the honesty and integrity of the employment tribunal, which this tribunal found to be based on no more than that the tribunal had rejected Mr Kuttappan’s submissions and had preferred the respondents’ evidence. He had alleged in his notice of appeal that the tribunal’s decision was “absolutely perverse, unfair, unlawful, biased, prejudiced and unreasonable.” He had also made an allegation that a senior manager of Customs, Ms Upshall, was also a lay member of the employment tribunals and that she would have known other lay members who would have done her a favour by dismissing his complaints. That appeared to be a new complaint, which Judge Serota said should never have been made. He also said:

 

“6. … A considerable amount of time has been spent by all three members in considering the bulky papers in this case. Furthermore, the fact that we have had to do that and have this case listed today, has meant that other more deserving cases have not been heard.

7.    We not only take the view that this appeal should be dismissed, but although we have not had the benefit of submissions from the Applicant, our view, having carefully considered the papers is that this appeal had no reasonable chance of success and was, in effect, unarguable. No case is made out for any bias on the part of the Employment Tribunal, nor has any case been made out, as it seems to us, against the Respondent in this case. We wish to be quite clearly understood and [sic: ‘that’?] we are not simply dismissing the appeals on the basis that the Applicant has asked us to withdraw his appeals, but on the basis that we are quite satisfied that the appeals were launched without any chance of success. These are appeals, in our opinion, that should never have been brought in the first place.”

 

Claim 6

39.       Over 19 days between May 2002 and November 2003, an employment tribunal chaired by Mr M. Houghton heard two further claims of race and sex discrimination and victimisation which had been presented by Mr Kuttappan against Customs, Mr Bob King (his line manager) and the Public and Commercial Services Union (“PCSU”). On this occasion, Mr Kuttappan was represented by Mr Panesar of counsel. The respondents were represented by Mr Carr of counsel. The tribunal’s 49-page extended reasons, promulgated on 30 January 2004, explained why they dismissed all the claims. Paragraphs 2 explained how during the course of the proceedings Mr Kuttappan withdrew his claims against the PCSU on 10 May 2002, 12 days before the start of the hearing. On day 1 of the hearing, Mr Panesar withdrew a further four claims. At the commencement of the closing submissions, Mr Panesar abandoned two further claims. The tribunal said that that was the first indication that those claims were not being pursued, claims in respect of which they had received considerable evidence. In paragraph 3, they explained how, following a question from Mr Rao, one of the wing members, Mr Panesar applied on day 6 for a discontinuance of the hearing and its recommencement before a fresh tribunal. On day 7, Mr Panesar modified that application to one limited to a request that Mr Rao should stand down and the hearing continue with just a panel of two. Mr Panesar then took instructions, accepted that Mr Rao had merely been seeking clarification of one of Mr Kuttappan’s complaints and withdrew his application relating to Mr Rao. In the event, on the last day of the hearing, Mr Kuttappan also withdrew the complaint which was the subject of Mr Rao’s question. In paragraph 7, the tribunal explained that the result of the successive abandonment of claims by Mr Kuttappan was that all the claims in one of the two applications before the tribunal had gone, with the result that Customs was the only respondent against whom he was still pressing claims. The claims against Mr King and the PCSU were therefore recognised, even by Mr Kuttappan, to be hopeless, albeit only at a late stage, and the surviving claims against Customs were dismissed. The tribunal’s findings explained in great detail how Mr Kuttappan sought to impose his views as to equal opportunities upon Customs (who, as Mr Kuttappan accepted, regarded him as a thorn in their side), including matters which he considered should be covered in an awareness training programme. One point he had made, in a letter of 25 November 1999, was that it was also “important that no one shall be allowed or encouraged to make false, frivolous, vexatious or malicious complaints against anyone.” It is a matter of regret that he could not follow his own advice.

 

40.       Mr Kuttappan appealed to this tribunal against the rejection of his claims, but he withdrew his appeal upon the respondents undertaking not to enforce the £3,000 costs order obtained against him in Claim 4.

Claim 7

41.       Over 22 days between July 2002 and March 2003, an employment tribunal chaired by Mr D.N. Milton heard Mr Kuttappan’s claims for race discrimination and victimisation against Customs, Mr Broadbent and PCSU. Mr Kuttappan appeared in person, the two respondents by counsel. The tribunal’s 78-page reasons were sent to the parties on 24 July 2003. They recorded that Mr Kuttappan had withdrawn his claim against Mr Broadbent at the outset of the proceedings (see paragraph 318); they dismissed the claims of race discrimination and victimisation against Customs and the PCSU; they held, by a majority, that such claims against Customs were false and had not been made in good faith; they unanimously upheld his sex discrimination claim against the PCSU but (only by a majority) awarded him £1,000 compensation. They explained in paragraph 36 that Mr Kuttappan had made Mr Carr of counsel (who had represented the respondents in Claim 6) a respondent to these new claims, although in the event Mr Kuttappan then withdrew those claims against Mr Carr (but not the factual allegations against him) and he accepted before us that he should not have made them in the first place. The extended reasons delivered in Claim 9, to which we will come, explain that Mr Kuttappan was ordered to pay £1,065.50 towards Mr Carr’s costs.

 

42.       The tribunal found the case to be unusually heavily documented. They said:

 

“46. The case was however in the unanimous view of the Tribunal unusual and probably unique in the experience both of the Chairman and the members in the volume of documentation which had been produced in relation to the period of time and the events. In our experience the quantity of documentation emanating from the Applicant, to the Applicant and about the Applicant over such a short period of time of 3/4 months we found to be as a matter of fact without parallel in our sitting on lengthy cases as we do in this region quite often. The actual events and issues simply covered the period late May – early September 2001.”

 

43.       They paid tribute, however, to thoroughness of Mr Kuttappan’s thoroughness in presenting his case, saying:

 

“56. He also demonstrated a titanic recollection of detail of the events e-mails, letters, documents, discussions, allegations, and history with which we were dealing to a level which in our experience not many barristers attain. He had a quick and comprehensive mastery of the document bundle which was particularly impressive when we took into account that he had no one to act as a note taker and to help remind him of page numbers and other references. There was of course a disadvantage to the Applicant in being unrepresented in that he may well have had to work harder at home in the evenings, rather than leaving it to a paid advocate. However, as we find, for example amply demonstrated by the lists of cross-examination questions immaculately cross-referenced and divided where appropriate into questions and sub-questions, the Applicant did in fact present on his own behalf an enormously thorough and carefully prepared case on all the main issues identified at the hearing for directions broken down often into microscopic detail and exploring on many of the issues a whole variety of possibilities, hypothesis [sic] and alternatives.”

 

44.       As we have said, all the race discrimination claims were dismissed, although the sex discrimination claim succeeded. At paragraph 351, however, the tribunal said that the majority’s view was that this represented “a purely technical victory” and, at paragraph 353, they said that the majority’s view was that the injury to Mr Kuttappan’s feelings was minimal. We understand the tribunal also to say in that paragraph that, had the sex discrimination been the sole claim, it would have represented only “a short and interesting morning’s work for a Tribunal.” The majority’s compensation award of £1,000 was, as they said, assessed “right at the lower end of the lowest scale postulated in” Chief Constable of West Yorkshire v. Vento (No. 2) [2002] IRLR 177. The minority would have awarded £5,000 compensation (see paragraph 354).

 

45.       In explaining the majority’s finding that all claims of race discrimination against Customs had been false and not made in good faith the tribunal were critical of Mr Kuttappan’s tactics, about the hundreds of pages of documents he had been responsible for generating in consequence of four minor “work place difficulties”, which the tribunal summarised in paragraph 362, and about his deliberately provocative intentions. We quote some of what the tribunal said:

 

“371. We the majority find that the Applicant was by the whole variety of words he used provocative in the sense of seeking to provoke a reaction in very many of the words and documents which he used. This general approach was reflected in his routine of using lists of questions formulated both formally and informally. In any situation where he felt himself either under threat or where he was seeking to prove a point or establish a principle, he used what the majority can only describe as the weapon of questions.

372. There are very many examples of batteries of questions from the Applicant, many of the questions sub-divided. The more formal lists of questions came thick and fast under the more formally described heading ‘questionnaire’ and of course there are some which were described specifically as questionnaires under [section 65 of the Race Relations Act 1976]. The questions themselves are often formulated in very extreme language and/or legalistic language. This was plainly oppressive and daunting for the recipient and it was not surprising in our finding that much of the documentation went more or less automatically to Liz Williams and even Mr Khalia for a response.

373. More importantly we find, many of the questions were framed no [sic] so much out of a genuine desire to know the answer to the question, but as part of a particular campaign or issue being pursued by the Applicant in that particular line of correspondence.

374. On occasions where the recipient chose to answer the questions there was very often, by return of post or e-mail yet further questions argument and debate about the answers given. …

375. Another tactic used by the Applicant was to copy much of his correspondence, e-mails and letters to a variety of people up and down the management chain. In our own proceedings he used that copying in of management to correspondence as an avenue for cross-examination and sought wherever possible to enquire whether the recipient had read such and such a series of documents (and if not why not). We the majority find as well that part of the Applicant’s objective must have been in certain situations to cover his own position and to place the onus on others to react to him in one way or another and thus in turn to provide a possible excuse or mitigation for himself. …

377. On similar lines was the Applicant’s regular referral to the suggestion that he was ‘a thorn in the side’ of the Respondents and that his particular communication might be viewed by the recipient as ‘irritating’ or his reference to the fact that the recipient might be ‘irritated’. …

378. We find that the Applicant has extracted the phrase ‘thorn in the side’ from discrimination law and was seeking to provoke the recipient or witness into agreeing that they viewed him as a ‘thorn in the side’ or ‘irritating’. As we have already observed above we found the patience and tolerance of the Respondent witnesses to what we have no hesitation in finding highly provocative and offensive and extreme language used both orally and in writing against them over and over again to be remarkable. We find that there must also have been an element in the reaction of the managers of concern about ‘walking on eggshells’ because of the Applicant’s constant reference to discrimination and victimisation. …

382. Another regular feature of his questions and questionnaires was an insistence on a very prompt reply with a threat of ‘adverse inferences’ if there was not a reply or prompt reply. We suspect that the majority of those receiving a reference to ‘adverse inferences’ would not have had the Applicant’s own legal knowledge of that phrase. This was part of what we find to have been a very legalistically confrontational approach by the Applicant in what was at any rate in each situation at the beginning a ‘mere’ workplace difficulty.

383. In general terms again it is obvious from the history that the slightest workplace difficulty generated from the Applicant a deluge of paperwork, a request for meetings, a request for notes and minutes of the meetings, arguments about notes and minutes and so on and so on.”

 

46.       Later the tribunal said this about Mr Kuttappan:

 

“408. Nevertheless as a Tribunal in a case of this kind with issues of this kind we were urged to reach a conclusion by the Respondent about the Applicant’s motivation. The principal way in which we reach a conclusion about such an issue is to look at the words used, the language used, the tone of the language if it is writing and the tone of the language if it is spoken as evidence before us and the conduct and behaviour accompanying those words and language. We find that it is obvious simply from the words themselves that over and over again the Applicant used about as extreme language as it is possible to formulate about many of his colleagues and managers in respect of whom he had criticisms and complaints in the contemporaneous meetings and documentation which was adopted, repeated and rehearsed to a substantial extent in our own proceedings. …

414. Furthermore, it is yet a further notable feature of the Applicant’s oral and written communications that there is in many cases very little actual substance and fact behind or underlying the very extremely worded but also very general and vague language used by the Applicant. …In our majority finding this is a further reflection of the Applicant’s own knowledge that the lack of actual content in the majority of his applications can be hidden by his purported extreme sense of injustice, particularly when that alleged injustice is based on alleged racism or race victimisation.”

 

Claim 9

47.       This claim encompassed five claims against Customs, involving eight allegations of race discrimination, 69 allegations of victimisation and a claim of unfair dismissal. The respondents were Customs and six individuals (including Customs’ Chairman). The hearing occupied ten days before a tribunal chaired by Mr R. Peters. The tribunal’s 47 pages of written reasons were promulgated on 6 August 2003 and explained that they had dismissed, as outside their jurisdiction, various complaints by Mr Kuttappan of alleged violation of his human rights; that Mr Kuttappan had withdrawn part of one case against two individual respondents; that his application to the tribunal to recuse itself was refused; and that all his substantive complaints in the proceedings were dismissed. They found, in paragraph 47, that:

 

“47. The Applicant was unmanageable and he treated his employment as merely a means to champion a cause which he has adopted. He did this without regard to feelings of anyone with whom he came into contact. Mr Griffith-Jones in his submissions accurately describes the Applicant when he says:

‘The Applicant is an extraordinary individual. He describes himself as an equal opportunities campaigner and even likens himself to Ghandi, Mandela and Luther King. But his approach is perverted. The reality is that he is himself driven by a racist (and sexist) philosophy which derives from wild, inappropriate and often offensive stereotypical assumptions (e.g. that Customs is run by discriminatory white managers, that ethnic minority managers are puppets in the hands of their more senior white discriminatory managers, ethnic minority managers are mere tokens, that ethnic minority female managers lack assertiveness to stand up to their more senior white discriminatory managers, that he was disadvantaged by never having a male line manager etc ...). So driven, the Applicant’s approach is clear. He cries foul whenever things do not go his way and is willing to make wild and unsubstantiated allegations about anyone and everyone whom he perceives as being responsible for actions/decisions which do not accord with his wishes. A singular feature of his approach is that he displays no compunction about engaging in individual character assassination of named individuals, with no justification and even less substantiation. He has even sought to maintain, and repeat, such attacks in the face of the categoric rejection of many of them by the (Chairman) Hyde Tribunal in cases 1 to 4, even ignoring the strength of that Tribunal’s findings, as reflected by its award of costs against him. At various times, he has accused virtually every one of his many line managers and countersigning managers as well as very many other managers with whom he has had some (often minimal) contact, from the Chairman down. He has even attacked the Respondents’ solicitors (Lawrence and Kalia) and counsel (Carr) without any conceivable justification. The Applicant’s central thesis is and always has been that the management culture of Customs & Excise is discriminatory. But his presentation in these current cases conveniently ignores the fact that such thesis is undermined by the wholesale rejection of every one of his complaints in cases 1 to 4. Of course, his reaction to the decision in cases 1 to 4 itself illustrates further his approach, which is to cry foul and complain of discrimination of one form or another whenever people fail to dance to his tune. The Applicant twists his assertions and massages the facts to suit his thesis. Thus he accuses those of his targets who are themselves from ethnic minorities as being the ‘puppets’ of the ‘discriminatory white managers’ and he dismisses evidence of the advancement or appointment of non white managers as ‘tokenism’ and part of some careful conspiracy by the ‘discriminatory white managers.’

 

48.       In disposing of one of Mr Kuttappan’s endless complaints, the tribunal said in paragraph 53:

“(xli) … In his submissions Mr Griffith-Jones stated:

‘These complaints, even for the Applicant, are extraordinary, but they illustrate how low in the depths of silliness the Applicant is prepared to go and how he is prepared to make fatuous complaints without any attempt to relate them to the statutory requirements of the complaint of racial discrimination/victimisation.’

The Tribunal can do no better that agree with the sentiments of that submission.”

 

49.       Mr Kuttappan appealed to this tribunal against that decision, but his appeal was withdrawn and dismissed by consent.

 

Miscellaneous claims

Kuttappan v. The Home Office and Others

Claim 10

50.       In July 2003, a tribunal chaired by Professor R.W. Rideout heard Mr Kuttappan’s three applications of race discrimination and victimisation against the Home Office and three others. The tribunal’s extended reasons promulgated on 20 August 2003 explained why they struck out the applications against three respondents as being misconceived and why they struck out as vexatious the applications against the other respondent. The case followed a familiar pattern. As the tribunal recorded in paragraph 1, Mr Kuttappan either raised, or at least appeared to raise, a question about the impartiality of one wing member of the tribunal, a point which they viewed as without substance. The strike out applications followed the giving by Mr Kuttappan of his evidence, and what appears to have been an unnecessarily protracted journey through the documents referred to in his witness statement. The tribunal said in paragraph 42:

 

“42. In the light of those facts, this Tribunal has asked itself the same question as was considered by the EAT [the panel presided over by Mr Commissioner Howell QC which heard the appeals in Claims 2 and 5] at paragraph 34 of that claim (endorsing paragraph 35 of the decision of the Employment Tribunal promulgated on 13 June 2001 (2304313/00)). The Employment Tribunal had stated that not all campaigns are appropriate to be conducted through courts and tribunals. The EAT stated that it is a misuse of Tribunal machinery for an individual to use it merely as a means of pursing some separate agenda or campaign. We conclude that in the light of all this knowledge it must have been the Applicant’s purpose to pursue such a campaign.”

 

 51.      Having explained why the claims were all hopeless, the tribunal the tribunal said:

 

“66. … In the case of a number of the claims made by the Applicant, particularly in respect of those relating to matters in 2003, we have expressed doubts as to the purpose of the Applicant and have suggested that he may well have been conducting a campaign. We have stopped short of branding the claims against the First, Third and Fourth Respondents as vexatious and/or unreasonable. We have stated on occasion that it appears that in pursuit of a campaign, the Applicant is deliberately drawing attention to his position and may be expecting, and even hoping, that these Respondents would reply to it in a way which he could describe as discriminatory or as amounting to victimisation. Whether that is so or not, we are not prepared to conclude that the Applicant plainly knew, in respect of most of the significant claims, that there was no reasonable chance of the claim succeeding. In our view, he must have known this in respect of some of the less significant of his claims, but we consider that there is nothing to be served by isolating those less significant claims as vexatious and unreasonable.

67. This, however, does not apply to the complaints of victimisation against the Second Respondent. In our view, quite patently the Applicant was well aware that these complaints had no substance whatsoever.”

 

52.       Mr Kuttappan applied for a review of that decision, but his application was refused as having no reasonable prospect of success. On 18 December 2003, the tribunal ordered Mr Kuttappan to pay £4,000 costs to the Home Office and £5,000 to Capita RAS Limited, the second respondent. Mr Kuttappan had in the meantime complained to the Regional Chairman of alleged bias against him by the Rideout tribunal and had asked for the matter to be heard by a different tribunal. That request was refused and Mr Kuttappan repeated his complaint about the tribunal at the hearing, relying also on allegations of bias he had levelled against the tribunal in his notice of appeal to this tribunal against the substantive decision. The complaints were refused. In September 2004, Mr Kuttappan’s appeals to this tribunal against the substantive decision were withdrawn by consent and dismissed, with the Home Office and Capita agreeing not to enforce their costs orders.

 

Kuttappan v. Racial Equality Partnership and Others

Claim 12

53.       In December 2003, Mr Kuttappan brought race discrimination and victimisation claims against the Racial Equality Partnership and three individuals. The claim was settled for £500, the respondents in Claim 13 asserting in their notice of appearance that they settled the claims without admissions of liability and in order to save the legal costs of a contested hearing.

 

Claims 13 and 16

54.       In 2004, Mr Kuttappan brought two further race discrimination and victimisation claims against the Racial Equality Partnership and three individuals (two of them were also respondents in Claim 12). They were heard together over four days in January 2005 before a tribunal chaired by Mr A.M. Snelson. The tribunal’s reasons were sent to the parties on 8 March 2005. The tribunal struck out four complaints in one of the cases as being misconceived; and as Mr Kuttappan had withdrawn all other complaints in that claim, it was dismissed. As for the other claim, the tribunal struck out six complaints as being misconceived, and dismissed all other complaints in that claim as being not well founded. The tribunal ordered Mr Kuttappan to pay the whole of the respondents’ costs of both claims. They found (in paragraph 37) that the proceedings had been brought in bad faith; that Mr Kuttappan had brought Claim 12 knowing it to be groundless; that he had made his job application and pursued one of his 2004 claims for the purpose of vexing and harassing the respondents and, probably, in the hope of some financial gain. In paragraph 39, the tribunal explained that they had been troubled not just by the lack of substance in Mr Kuttappan’s claim but by his manner of pursuing it. The tribunal followed this with an explanation of his pattern of proceeding, including in particular his oppressive use of the weapon of questions which another tribunal had referred to. Their criticism of Mr Kuttappan’s oppressive and unreasonable conduct of the pursuit of his alleged complaints was full and damning. In paragraph 40, they said that these features of his conduct of his complaints were disturbing enough, but what was worse was that Mr Kuttappan had manufactured entirely false allegations against the respondents, had “deliberately and knowingly told the Tribunal a straightforward lie” and had included a series of allegations in paragraphs 41 to 50 of his witness statement that he had made up for purely tactical reasons. In paragraph 41 of their reasons, the tribunal castigated Mr Kuttappan’s bringing of the proceedings and the conduct of them as “misconceived, unreasonable and disgraceful”. They said that:

“… To run such a case in such a way against any respondent would be despicable. To prey upon an organisation such as the First Respondents, which exists to promote improved race relations and to combat discrimination, was, we think, beneath contempt. It is, in our view, not easy to imagine a more appropriate case for a costs order. We are quite satisfied that the proper order is one requiring Mr Kuttappan to pay the totality of the Respondents’ costs.”

 

55.       Finally, in a postscript they added this:

 

“42. We have made certain strong findings concerning the behaviour of Mr Kuttappan. We have also commented adversely on his judgment. On the other hand, it would be wrong not to recognise his abilities. He has a remarkable memory and an impressive command of detail. It is, to out minds, tragic that he should be, seemingly, so intent upon tilting at windmills and inhabiting a world of constant conflict, when with a change of heart his undoubted talents could, we feel sure, be put to constructive and even, perhaps, rewarding use.

43. If Mr Kuttappan does not see fit to restrain his litigious impulses, we feel bound to wonder whether the time is approaching when the Attorney-General should be invited to consider whether to seek an order under the Employment Tribunals Act 1996, s. 33.”

 

Kuttappan v. Reigate and Banstead Borough Council

Claim 15

56.       In January 2005, a tribunal chaired by Mrs F. Spencer heard Mr Kuttappan’s race discrimination and victimisation claims against the Council and two individuals. The claim followed his unsuccessful application for employment as a parking attendant. The tribunal’s reasons were sent to the parties on 14 February 2005. They dismissed the claim as not well founded. The chairman dismissed Mr Kuttappan’s application for a review.

 

Additional applications produced since the closure of the evidence

Kuttappan v. Firm Security Group Ltd

57.       This claim was heard over two days in November 1996 before a tribunal chaired by Mr I.S. Lamb. The tribunal’s decision sent to the parties on 26 November 1996 records that on the second day the parties reached an agreement. The terms are not in evidence.

 

Kuttappan v. Makro Wholesalers Limited

58.       On 24 March 1998, a tribunal chaired by Mr R. Peters heard Mr Kuttappan’s wrongful dismissal and race and sex discrimination claims against Makro Wholesalers Limited. In their extended reasons promulgated on 23 April 1998, the tribunal said that Mr Kuttappan had been employed by Makro for one day only. He had been offered the position of cashier assistant, a job he started on 1 November 1997. They said that he had withdrawn the wrongful dismissal claim at the hearing. His discrimination complaints were based on the assertion that he had been instructed to work outside, collecting trolleys, which he had refused to do, following which he had been dismissed. Those claims were also dismissed.

 

Kuttappan v. Midas Retail Security Ltd and Another

59.       Over three days in March and July 1998 and February 1999, a tribunal chaired by Mr I. S. Lamb heard Mr Kuttappan’s discrimination claims against Midas and Whitgift Centre Management following his unsuccessful application as at security officer at the Whitgift Centre. The tribunal’s decision sent to the parties on 12 February 1999 recorded that Mr Kuttappan had reached agreement on the claim with Midas and had withdrawn the claim against Whitgift, which was dismissed.

 

Kuttappan v. Boyden and Others

60.       On 25 November 1999, a tribunal chaired by Mr Rideout heard a preliminary issue as to whether Mr Kuttappan’s claim of race discrimination against Mr Boyden, Midas Security Group Limited and Whitgift Centre Management had been presented in time and was not, by reason of the proceedings just referred to, ruled out under the principle of res judicata. This second set of proceedings followed Mr Kuttappan’s renewed offer to Mr Boyden for employment at the Whitgift Centre, one with which Mr Boyden wanted nothing to do, describing Mr Kuttappan’s persistence as “vexatious”. Mr Boyden’s explanation in his answer to Mr Kuttappan’s questionnaire was, in part, that he had formed the view that “as an employee [Mr Kuttappan] would have persistently searched for reasons to accuse my company of discrimination against [him] or other employees, however fallacious such allegations may have been.” The tribunal’s decision was that the claim was presented in time and was not ruled out by res judicata. They were not concerned with its merits.

 

61.       The merits hearing occupied nine days in December 1999 and July 2000 before a tribunal chaired by Mr D.N. Milton. Mr Kuttappan was in person. The tribunal’s reasons were promulgated on 29 September 2000. They recorded that Mr Kuttappan had withdrawn his sex discrimination claim, one which in paragraph 85 they described as having been (in effect) a misconceived piece of time-wasting, and recommended:

 

“… that should the Applicant be involved in any other cases where he is uncertain about the viability of a claim being made, it is his duty and responsibility to make sure that he has got a good case on any particular point at an early stage in the proceedings and not simply wait to see how the lie of the land looks before he decides finally to proceed or not to proceed.”

 

62.       They dismissed his race discrimination claim against all respondents and his victimisation claim against Whitgift (saying in paragraph 110 that there had been no basis at all for the case against Whitgift). By a majority, Mr Kuttappan’s victimisation claim succeeded against Mr Boyden and Midas, and Midas was ordered to pay him compensation of £2,500, but no compensation was ordered against Mr Boyden. The minority would have dismissed this claim as well. In paragraph 15, the tribunal explained that, unjustifiably, Mr Kuttappan sought to reopen the question of whether he had been discriminated against in the summer of 1997, when he made his first application for a job at the Whitgift centre, claims which had been disposed of in his first originating application against Midas and Whitgift.

 

Kuttappan v. Securicor CIT Limited and Others

63.       Over five days in August 2003, a tribunal chaired by Mr R. Lewis heard Mr Kuttappan’s race discrimination claims against Securicor CIT Ltd and four individual respondents. The claims followed an unsuccessful application for employment with Securicor. They were all dismissed save for the victimisation claim against Securicor in respect of a telephone call, which was upheld and for which the tribunal awarded Mr Kuttappan £3,178,75.

 

Kuttappan v. Tram Operations Limited and Others

64.       Over six days in May and July 2004, a tribunal chaired by Mr M. Hall-Smith heard Mr Kuttappan’s complaints of race discrimination and victimisation against Tram Operations Limited and seven individuals. They followed his unsuccessful application for employment as a tram driver. The claims raised 16 separate allegations of discrimination and victimisation. The extended reasons were promulgated on 9 December 2002, and the tribunal dismissed all claims. They found that the sole reason for the rejection of Mr Kuttappan’s job application was his poor driving assessment. They added that:

 

“51. … Once the Claimant had become aware that his application had been rejected, he subjected the Respondents to a volume of correspondence, which the Tribunal considered was unreasonable, even making allowances for the fact that the Applicant was obviously and understandably disappointed that he had failed in his application. We do not conclude on the evidence that the Claimant had any intention of taking on board any explanation for his non selection from the Respondents, and was determined to bring Employment Tribunal proceedings against the Respondents however unreasonable and satisfactory the Respondents’ explanations for his non selection were.”

 

Kuttappan v. Meteor Parking Ltd and Mr K. Homji

65.       Over two days in October 2004, a tribunal chaired by Ms J. Wade, dismissed Mr Kuttappan’s claim that Meteor had discriminated against him on grounds of race, but found that Meteor had victimised him. They also found that Mr Homji had not victimised him, this being the only claim made against Mr Homji. The tribunal’s reasons were sent to the parties on 30 November 2004. The claim followed Mr Kuttappan’s unsuccessful application for the job of a Revenue Protection Officer. He was one of 283 applicants who were interviewed for the job. The evidence does not disclose what remedy Mr Kuttappan recovered.

 

Mr Kuttappan’s response to the application

66.       By his notice of appearance, and in addition to saying he would resist the application, Mr Kuttappan asked for the application to be passed to the European Court of Justice, asserting that he would not obtain a fair hearing before this tribunal. That absurd application was one he persisted in until the hearing itself, although he did not press it, and in a letter to the tribunal following the hearing (copied to the Treasury Solicitor) he apologised for having suggested he would not receive a fair hearing.

 

67.       Mr Kuttappan’s affidavit ran to 35 pages. We do not propose to detail what it asserts, since we do not regard it as meeting the Attorney General’s case in any relevant way. The thrust of it, in part, is that Mr Kuttappan claims that in the course of his considerable use of the London South tribunal, and at the Regular Users’ meetings of that tribunal, he has played a valuable role in increasing, or endeavouring to increase, racial awareness amongst the chairmen and members of employment tribunals; and that there is a continuing “positive and significant role” for him to play in making employment tribunals less institutionally racist. He appears also to be asserting that the judiciary is institutionally racist, which he says the Attorney General has done practically nothing to stamp out.

 

68.       He says that he has made many formal complaints about the chairmen and members of the London South tribunal, some of which he admits were serious, personal, hurtful and upsetting; that he has lodged many appeals to this tribunal in which he has made serious allegations of bias or improper conduct by chairmen and members; that he has corresponded with (amongst others) HH Judge Meeran, the current President of Employment Tribunals, with the President and Registrar of this tribunal, and with the present Lord Chancellor and Attorney General. He makes the point that he has complained about at least one employee of this tribunal and he suggested that it was possible that the Registrar and some of the tribunal staff would have had discussions about him and formed a negative impression about him. He also suggested that it was possible that some judges of this tribunal would also have had discussions about his notices of appeal or affidavits and would or may also have formed a negative view about him. It was this line of assertion which formed the basis of his claim that he would not have a fair hearing from this tribunal on this application. We say simply that we regard his various points in this respect as without substance. I, as one of the judges of this tribunal, was able to inform Mr Kuttappan at the hearing that, so far as I could recollect, I had never heard of him until about a week before the hearing, when I was provided with the papers in the case. As we say, Mr Kuttappan has now anyway withdrawn his assertion that this tribunal could not, or would not, deal fairly with the application.

 

69.       Mr Kuttappan also devoted considerable effort in his affidavit to criticisms of Mr Snelson, one of the many tribunal chairmen who have dealt with his many cases, accusing him of bias, and complaining that his attempts to achieve a hearing before a chairman other than Mr Snelson had all failed. He complains of the manner in which Mr Snelson (whom he accuses of “seriously lacking honesty, integrity, impartiality and sense of responsibility or ability to find out the actual and/or the fullest facts”) conducted the 2005 hearing of his claims against Racial Equality Partnership, and he sought to re-open the soundness of the findings by that tribunal. We do not understand the supposed relevance of these points. Mr Kuttappan has made regular accusations of bias and misconduct against various chairmen and members and, so far as we are aware, none has succeeded. If Mr Kuttappan’s point is to the effect that we should disregard the adverse decisions of any tribunals chaired by Mr Snelson, we reject the invitation. Those decisions stand unreversed and unimpeached. Mr Kuttappan also criticises certain findings made by another chairman, Ms Stacey, who dealt with one his Croydon cases, a criticism which he says Ms Stacey later admitted as justified and for which she apologised. But the criticism was not one which has resulted in a reversal of the Stacey tribunal’s decision.

 

70.       As for the present application by the “white British” Attorney General, Mr Kuttappan describes it as “false, misconceived, abusive, unreasonable, vexatious, and racially discriminatory or motivated.” He complains that the Attorney General did not take up his invitation to have a “private, personal and confidential meeting and discussion” with the President of the Employment Tribunals about Mr Kuttappan’s efforts with regard to improving the culture in the London South tribunal before continuing with this application. He complains that the Attorney General did not accept his undertaking that he would not start any more claims without the prior leave of this tribunal. He complains that the Attorney General has not withdrawn his application. He said that:

 

“59. I believe that: (a) the Applicant has little or no knowledge about what exactly was going on within the London South Employment Tribunals in relation to my claims. (b) The Applicant had made no effort to find out exactly what was going on within the London South Employment Tribunals in relation to my claims. (c) He did not find out or make any effort to find out the exact reasons(s) why so many of my claims were dismissed by the London South Employment Tribunals and/or why there were so many unfair, improper, inappropriate and personal criticisms about me or my claims in the judgments of the London South Employment Tribunals.

60. I also believe that: (i) The Applicant had never critically examined his own attitudes and prejudices to me and/or to the people from minority ethnic communities, particularly adult immigrants, who had made claims of racial discrimination against white British people. (ii) He did not realise his own attitudes and prejudices towards me and/or to the people from minority ethnic communities, particularly adult immigrants, who had made claims of racial discrimination against white British people. (iii) He believed that many people from minority ethnic communities were making claims of racial discrimination because they had no other claims to make and that their claims were false, frivolous, misconceived or vexatious. (iv) He also believed and/or continues to believe that all or almost all my claims were false or vexatious.”

 

71.       Mr Kuttappan developed this theme further in his affidavit and proceeded also to revisit various other tribunal decisions on his applications and to make his own critical and defensive comments on them. We do not propose to detail the points he makes. We consider that we have to take the decisions as we read them.

 

72.       Mr Kuttappan’s immediate response to the issue of the present application was to write a long letter on 11 August 2005 to the Attorney General, asserting that the application was “misconceived, unfair, racially discriminatory/victimisory and without sufficient merit.” Amongst the long list of points he made, he did, however, say that he was prepared to agree that, before lodging any further tribunal claim, he would first obtain the leave of this tribunal; and, having so said, he asked the Attorney General to withdraw the application. He repeated that statement and request in a further letter to the Attorney General on 18 August 2005 and again in a letter of 9 September 2005. On 10 October 2005, he sent the Attorney General an oppressive six-page questionnaire under section 65 of the Race Relations Act 1976 – another example of what one tribunal had described as Mr Kuttappan’s “weapon of questions”. On 11 October 2005, he sent the Attorney General a three-page questionnaire under the Freedom of Information Act 2000. On 20 October 2005, he sent a six-page Section 65 questionnaire to the Solicitor General.

 

The issues

73.       There are two questions for us. First, whether we are satisfied that the condition in section 33(1)(a) of the 1996 Act is satisfied, that is that Mr Kuttappan “has habitually and persistently and without any reasonable ground – (a) instituted vexatious proceedings, whether … in an employment tribunal or before the Appeal Tribunal, and whether against the same person or against different persons …”. It is the Attorney General’s case that he has (we did not understand any reliance to be placed on the alternative condition in section 33(1)(b)). Secondly, whether or not, if that condition is satisfied, this is a case in which this tribunal should exercise its discretion to make a restriction of proceedings order.

 

74.       We interpreted Mr Kuttappan’s contentious affidavit in answer to the application as attempting to found a factual basis from which he could, and would, mount an argument before us to the effect that he was a much misunderstood man, who was driven by nothing but the highest of motives and whose repeated applications before the London South tribunal, occupying as they did over 125 days of tribunal time, should be seen as directed to achieving genuinely constructive ends rather than as simply reflecting the repeated running of similar and (with a tiny minority of exceptions) unfounded claims. In the event, this was not the line that Mr Kuttappan advanced before us in the course of his clear and courteous address. His stance to us was not one of adversarial defiance, but (in the language of yesterday’s pleaders) one of confession and avoidance.

 

75.       By that we mean that he formally acknowledged to us that, down to the issue of the Attorney General’s application, he had suffered from what, in his letters to the tribunal following the hearing, he referred to as “all my bad habits and inappropriate behaviours”; and he in terms also acknowledged to us that he recognised that there was or may have been something fundamentally wrong with him. He was thereby accepting that, putting it shortly, he had abused the process of the employment tribunal by the bringing of so many unfounded claims and about the manner in which he had conducted them. But he asserted that since the issue of the present application he had determined to reform his ways, having decided in August 2005 not to make any further tribunal claims or to lodge any more appeals to this tribunal. He disclaims any suggestion that his declared intention to reform was immediate and complete, and he conceded that he continued to write letters in an inappropriate manner. He accepted also that it was only during the two or so weeks before the hearing before us that he had been thinking seriously of changing his habits. But his claimed position was that he had looked critically at himself and had realised that there were indeed some fundamental problems with his attitudes, prejudices, habits, approaches and behaviour that he needed to change. He said he needed to listen to what people like the President of the Employment Tribunals tells him. He also said he needed to attend employment tribunals and listen to how counsel handle their cases, making the point that he had noticed how courteous counsel always are to the tribunal (although in this connection we are not conscious of any tribunal having criticised Mr Kuttappan for any lack of courtesy to them, although of course they have criticised him for many other things).

 

76.       In short, Mr Kuttappan has effectively admitted that, for the future, there needs to be a proper control over the extent to which he is to be at liberty to bring proceedings in the employment tribunal or this tribunal, and he has backed that up by offering an undertaking to this tribunal that he will not pursue any such proceedings without the prior leave of this tribunal. As we have said, he offered such an undertaking to the Attorney General in the early stages of this application, but the Attorney General declined to accept it.

 

77.       We will consider in a moment how we should deal with Mr Kuttappan’s offered undertaking, but say first that we would not be prepared to find that the section 33(1)(a) condition was satisfied merely on the basis of Mr Kuttappan’s admission as to his serious personal shortcomings with regard to his commencement and prosecution of his many claims to employment tribunal. We consider that any such finding must be based on an objective assessment of the number, nature and outcome of his many claims, and of the manner in which they were conducted, not forgetting that in the course of the (at least) 33 claims he has brought, he achieved success in at any rate five of the contested complaints amongst the countless overall number of complaints that he made in those claims, although two of such successes were described as merely “technical”. In our view, however, this relatively tiny number of successes is not by itself sufficient to redeem the prosecution of the claims as a whole. The fact is that the overwhelming majority of complaints did not just fail, but in many of them it is plain that the tribunals were satisfied that the primary motivation behind them was the pursuit by Mr Kuttappan of his equality campaign rather than to obtain redress for a genuine personal grievance. He was therefore using the resources of the employment tribunals for a purpose other than that for which they were intended, and was doing so in a way which was often found to be manifestly oppressive and burdensome to his opponents. The difficulty they faced was that, as Mr Kuttappan is so well aware, race discrimination claims are peculiarly fact-sensitive, such that it is ordinarily only after a full investigation of all the facts that it can be seen whether there is anything in the claim. That necessarily involves protracted hearings in a tribunal in which the ordinary rule is that each side pays its own costs. The claims are, however, potentially very serious for the respondents, who will ordinarily have to incur considerable costs in meeting them. Croydon and Customs have had to face repeated such claims. With the few, very minor exceptions we have mentioned, the claims proved to be, one after another, wholly unfounded. Some were found to be brought in bad faith. We have referred to the many, very critical comments made about the quality of the claims by the various tribunals that decided them, about the manner in which the claims were pursued and about the reason that some of them were brought. Our review of the evidence relating to the claims satisfies us that, despite the very few successes he achieved, Mr Kuttappan has habitually and persistently, without any reasonable ground, instituted vexatious proceedings in the employment tribunal and this tribunal and that therefore the precondition of the exercise of our jurisdiction in section 33(1)(a) is satisfied.

 

78.       As to whether, having so concluded, we should exercise our discretion to make the order sought, Mr Kuttappan resists that. He says that, from the outset, he offered the Attorney General the undertaking to which we have referred, and he has repeated the offer to us. Mr Nawbatt, for the Attorney General, was, however, not prepared to agree to the matter being disposed of by an undertaking. He said that there are or may be difficulties in enforcing such an undertaking; and that anyway an undertaking could not be advertised in the London Gazette and the Edinburgh Gazette in the way that an order could and must (see section 33(5)), so that the public would not receive the same protection as they would from an order. He also says that this is a particularly extreme case of vexatious litigation that calls for nothing less than the usual form of order.

 

79.       To our question to Mr Kuttappan as to why, if he was prepared to offer the undertaking, he was not prepared to submit to a restriction of proceedings order, his answer was that he does not want an order to be made that would reflect that he had been found to be a vexatious litigant. We presume he does not want to lose face in his local community. He therefore wanted us simply to accept his undertaking, impose it upon the Attorney General against the latter’s will and so dispose of the case without given any reasoned decision on the Attorney General’s claim that he is in fact a vexatious litigant. Given Mr Nawbatt’s reasoned opposition to the disposal of the case in that way, we concluded that we ought not simply to accept Mr Kuttappan’s undertaking but should reserve our judgment as to the proper disposal of this application; and for that purpose we have necessarily had to set out the facts of this lamentable story and to make our findings on it.

80.       Having done so, we see no good reason why, given our finding that the condition of the exercise of our jurisdiction under section 33 has been satisfied, we should not proceed to exercise our discretion to make the order sought. On the contrary, we consider that there are good reasons why we should make such an order. The Attorney General has satisfied us that it is in the public interest that a proper control should be imposed over Mr Kuttappan’s future litigious activities and it is implicit in his offer of the undertaking that Mr Kuttappan agrees with the Attorney General. The only difference between them, therefore, is whether that protection should be by an order (which, with a view to achieving the best protection for the public, we regard as the safer course to follow) or by an undertaking (which perhaps has certain disadvantages). In particular, this is not a case in which Mr Kuttappan is saying that, so reliable is his stated determination to follow the path of reform, no formal protection at all is required.

 

81.       In our view, our question as to which of the alternative courses we should follow answers itself. We regard this as about a plain a case for a section 33 order as they come and we consider that it is in the public interest that we should make such an order. We propose to do so. The order will be for an indefinite period.