What is a vexatious litigant and what can I do about it?
Someone who issues claims regularly, usually without any real basis, and to a wide range of people is a ‘vexatious’ litigant. They are rare, but they do exist. Generally, the cases are struck out or withdrawn, but not before considerable cost and time have gone into them from the employer Respondent to the case.
Where there is a truly vexatious litigant, it is possible to apply to the Attorney General for an order preventing proceedings.
That is not a simple process and is very rare – it requires the litigant to obtain permission from the Employment Appeals Tribunal before a claim can be brought, thus ensuring that employers do not have to continue defending costly and unmeritorious claims.
If you believe that you might be subject to a claim by such a person, you can search at www.thegazette.co.uk to see if there is a Restriction of Proceedings Order in place.
WHAT CAN YOU DO WHEN YOU RECEIVE A CLAIM YOU DON’T THINK IS GENUINE OR VALID?
A more common situation that employers can find themselves in is where they have carefully followed all the right procedures, taken advice and done all the right things, but they still find themselves subject to a claim, often due to a lack of understanding on the part of the potential litigant.
What we ideally do here is try to stop such claims from going ahead and limit the outlay to our clients. Options here include applying to strike a claim out and applying for costs or deposit orders too.
WHAT ARE THE CONSEQUENCES OF BEING SUBJECTED TO A WEAK CLAIM?
Essentially, as costs are often not awarded in a Tribunal and if they are, they are more limited in value, an employer who has to defend any claim can be looking at significant legal costs, not to mention the time of preparing a claim and attending a hearing. Even where the claim is weak and the employer is successful, the whole costs are often not recovered, and the wasted time is already lost.
WHAT CAN EMPLOYERS DO?
First and foremost, following the correct legal procedures avoids giving any grounds for claims- this is the best protection.
However, when that has been done and a claim arrives regardless, there are quite a number of tactics which we can use to dissuade litigants from going ahead with claims which have little or no merit. These tactics include the following: -
- The first is to make good use of the Early Conciliation. Every claim has to go through this with ACAS, where ACAS will open a file and contact both sides to see if the matter can be settled. We have great success in setting out the law here demonstrating why a claim will not succeed and how robustly it will be defended in a way which can often result in no claim being issued, and we highly recommend using this process to try to head off claims before they become formal. Where a claim is legally misconceived and that is set out clearly early in the process, that can also mean costs awards become more likely where the claim continues regardless.
- Once the formal claim is issued, then the initial process will involve not only a very robust and clear legal defence, but using the early proceedings to either apply that the case itself be struck out entirely, or that a deposit order be made to continue. The latter is more frequently ordered than the strikeout, which is draconian and does require clear evidence that the claim is hopeless. If a deposit order is made, the claimant has to pay a sum of money to be able to continue, and it is good evidence that a costs order may be made should they proceed and lose. Both are combined with a legal letter setting out that the claim itself is technically unmeritorious and that costs would then be sought on that basis by the employer should it go ahead. Although costs are harder to win in a Tribunal, they do happen, and where a claim is vexatious, they should be clearly flagged early in the case to make the claimant aware of the possibility.
- If the claim progresses, there may be other chances to bring it to a close. The claim itself will involve a number of different orders with regard to evidence and statements – and where a claimant is not co-operating with these, it is possible to ask that the Tribunal make an order that “unless” they do so, the claim be struck out. This can be a useful remedy against the person pursuing a claim with no merit and who is thus reluctant to hand over evidence. If they refuse to do so, the claim can be struck out which means it is at an end and they cannot pursue it further.
- Finally, sometimes there are practical steps to consider. A “nuisance/cost benefit” settlement is always worth considering early in the case – offering a small sum, often plus an agreed reference, simply to bring things to an end without the further outlay of money or time. This can save costs and risks of litigation and ensure any public Judgment (almost all Employment Tribunal decisions are published online) is limited to the terms you agree to, giving more control to you when you resolve a case like this.
- Another option can be to offer to pay an agreed sum to a Solicitor of the employee’s choice for advice – where the employer is confident that the claim is being pursued due to a lack of understanding, this can be effective, allowing them to get an independent opinion. It would also be useful armoury in any costs claim later, to show that you had offered the opportunity for them to obtain an independent opinion and they turned it down, which can help avoid the argument that a litigant-in-person couldn’t have known the claim wasn’t valid.
There can be other practical steps – and often this is why ACAS conciliation can be so useful for giving an idea of what the claimant is really looking for. At the end of the day, litigation is expensive and uncertain, and if sensible steps can be taken to avoid it, employers may be wise to carefully weigh them up.
At BRIDGE, we are always mindful of our client's bottom line and ensure that we give them economic options at every stage. Of course, sometimes there are very good reasons to fight such a claim, and, where that is the case, we have the experience and expertise and we do our utmost to ensure not only victory but to put the client in the best position to recover some costs at the same time.