Tactics at the fore when facing unreasonable tribunal litigants

You probably have some experience of this. An employment tribunal claim that has little merit but seems to absorb a huge amount of management time and doesn’t look like it’s going away any time soon. The claimant appears to be stubborn, difficult to deal with and is demanding compensation which seems totally unrealistic on any measure. So, what can you do about it? We will come on to that shortly

In rare cases the individual may be deemed a vexatious litigant and banned from bringing tribunal claims in future. We have just seen an example of that reported by Personnel Today - a man who has made more than 40 employment claims against a variety of companies. David Taheri has now been banned from using the employment tribunals service after a successful application by the Attorney General. The Employment Appeal Tribunal gave Taheri a restriction of proceedings order of indefinite notice, stopping him from making claims against employers without the permission of the EAT or a high court judge. Most of his 43 claims, made between 2012 and 2020, were struck out after either having no reasonable prospect of success or after being withdrawn. None of the cases resulted in success at a tribunal hearing but many of them resulted in small out-of-court settlements – nuisance payments to get rid of the problem. 

Establishing that someone is a vexatious litigant is a high bar and is rare. You need to show the individual has habitually and persistently and without any reasonable ground brought a succession of claims at various times which amount to an abuse of the justice system. However, not uncommon is the very annoying claim, verging on the unreasonable, and that is something we see quite often. They are difficult for clients and, for the managers involved, often stressful and upsetting. So how can you manage those claims? What tactics can lawyers use to help? James Cran has seen many such cases and he joined me by phone from Edinburgh to discuss it: 

James Cran: “One thing you want to do, as early as possible is to try and impose some reality on the claimant. You will want to get a quantification of their losses from them and that's something that can be ordered at a case management hearing, if it's a discrimination claim, and often you'll see very wild estimates of what an injury to feelings award, or a compensatory award, might be. Now, you can help the claimant understand how unrealistic that is in a number of different ways. One is to point to previous cases where awards are much more limited than claimants think they are. They will have seen something in the papers but that's a very rare case, that’s why it's in the papers, that’s not the reality what they're likely to get and t here are useful publications that give them a more realistic idea of what they could conceivably get. So that's one thing. Also the obligation to mitigate any losses, you know, have they been looking for jobs? You can do job searches, and so on and so forth. So you can get them more realistic on the money. Another thing you can do is try and put the case on rails, or even in a cagey, however you want to put it. One of the things that takes up a lot of time and effort is that they keep trying to amend the claim, or bring new things in, or the claim isn't clear at all and you're trying to second guess what the claimant wants, or what their complaints are. There are a couple of things you can do to control that. One is to have something called a Scott Schedule which you, the respondent, writes and that sets out what they're saying happened, when did it happen, who was responsible and what were the acts? So you write that for them on the basis of what you know and you use the tribunal process to pin them down and that can be an important part of saving time. So you've got them real on the amount of money they might get, you've got them pinned down on the nature of the claim, but it's still what you think is a very weak or unreasonable case, or there's still an abusive process going on. Now costs, or expenses as they're known in Scotland, are something that the tribunal can award. It's relatively rare an employment tribunal situation but, nevertheless, it exists and costs and expenses can be awarded on the grounds of the claimant’s unreasonable behaviour and it’s something you want to make the claimant aware of as early as possible if they are being difficult in any way and there are a couple of ways that you can use them. You can make a costs, or expenses, warning. So behaviour is unreasonable, you can say look this behaviour is unreasonable for the following reasons, we are incurring extra costs as a result of your unreasonable behaviour and we are considering making an application for the recovery of those costs. So just give them fair notice that that's what you're considering. You can also have something called a Calderbank letter where you might make a fairly low offer to settle a claim and you say to the individual look, if you don't accept this offer and you go to tribunal and you're awarded less than that, we will produce this ‘otherwise without prejudice’ letter to the tribunal and ask for a repayment of all the costs that had been incurred after that offer was awarded. In other words, this is a good deal for you and to not take this deal and proceed is unreasonable. So that's another way you can use it.”

Joe Glavina: “These days tribunal judgments are all online so it’s quite easy to search a name and find out a bit about the individuals that way. But are there any other ways you can find out more information on someone? 

James Cran: “We've recently in the team here in Edinburgh had an experience of somebody who would appeal every decision, every judgment, every preliminary issue, asked for reconsideration and the process was just grinding on and on and on and costing us more and more money and we got an award of expenses against this individual for their behaviour. The individual, as it's quite often the case with claimant, says, look, I don't have any money so if you were to get an award of expenses against me, so what? I don't have any money to pay you. What we did is we did a Zoopla search and found out that he owned a property worth over a million pounds that was not subject to any mortgage, so he'd been lying, and so the award of expenses was increased as a result of that. So, there are various things you can do to find out about the means of an individual and to deal with unreasonable behaviour. 

The case of the serial litigant banned from bringing claims which was reported by Personnel Today is Her Majesty’s Attorney General v Taheri. It’s useful because it sets out clearly the statutory criteria that need to be satisfied to have an individual classed as a vexatious litigant although, as you heard, it’s a high bar. If you’d like to read that case for yourself you can – we’ve put a link to the EAT’s judgment in the transcript of this programme.

LINKS
- Link to judgment: Her Majesty’s Attorney General v Taheri