Truly I can see the future. A few weeks ago I wrote on this blog about a website run by Gordon Turner and Damien McCarthy, the two employment lawyers who set up www.serial-litigants.com, designed to keep a check on those claimants who repeatedly bring claims against different employers (or potential employers) for the same thing – usually discrimination claims.  I welcomed the scheme but thought that it might hit problems with the Data Protection Act, which governs what information can be held on people and how it can be used.  Then, lo and behold, I received this email from Gordon Turner a few days ago;

Dear Michael

 ALL GOOD IDEAS MUST BE SHOT DOWN

 …or so it seems. As you predicted, our service is to be challenged, although it is not clear why because (a) we have no database and (b) have already taken and implemented advice from the ICO.

 We are meeting an MP on Monday to see if a helpful EDM can be set down in response, namely to properly debate the degree to which serial litigants are (or may be) a ‘big problem’.

 With one claimant alone having brought well in excess of 50 claims (without ever showing up to hearings) our concern is that the problem or serious threat of a problem by serial litigants is neither audited or monitored in any way.

 There must be a way of striking a balance between the policy issues of dispensing with the Register and the needs of the public and employers.

 Regards,

Gordon Turner

 The EDM (Early Day Motion) will probably not be debated; most aren’t.  EDMs are a mechanism whereby backbench MPs can promote issues and raise awareness.  Although this EDM does criticise the abuse of the system by serial litigants, it does not suggest a practical alternative and that is regrettable.  This is the text of it;

I don’t think the reputation of the Oracle at Delphi is in too much danger as it was always likely that a challenge to this website would arise.  Serial-Litigants.com works by searching the Register of Decisions held by the Employment Tribunal.  If the same person keeps cropping up time after time this is then material for cross-examination at the final hearing or, more likely, for a strike out application early on. The idea is that when a Claimant is faced with evidence that he/she has been submitting multiple clams his credibility will be so badly damaged that no Tribunal would give the allegations credence. In my earlier post I said that this scheme deserves to succeed and I still think that. Some sort of safeguard is necessary for preventing vexatious litigants from making a fast buck out of the justice system – in the worst cases putting in multiple claims with the aim of forcing the employer into making a financial settlement is no better than extortion.  What is missing from this debate so far is any sort of statistical analysis on how significant a problem it is.  The EDM states that it “does not accept that these individuals are a big problem”:  does anyone know of any figures out there? Perhaps Gordon Turner or Damian McCarthy could respond on that?

Where the EDM might be on stronger ground is in saying that the website could be used by employers for screening out job candidates who had previously taken legitimate claims against their previous employers.  That is a concern in just the same way as the blacklist maintained by The Consulting Association on construction workers and the Retail Consortium’s register on shop-workers was.  I can see that the website could be misused in this fashion but, in the bigger picture, how many employers are going to pay the fee (currently £99 per search, although temporarily reduced to £50) each time they employ someone?  I think it unlikely that many employers will do that. Which is the bigger risk: serial litigants ripping off innocent businesses or honest employees being screened out by unscrupulous employers?    How else can this problem be tackled if not by a search based system?

Well, I can think of two options. One way would be to introduce Tribunal fees upon issuing proceedings, in the same way that is required when commencing a claim before the County or High Court.  The level of fees can be swingeing though, especially in the bigger claims and that is because (laughable) government policy for some years now has been to make the court system self-financing by its users.  Hence you have to pay a large fee even if you want to cough in court.  Employment Tribunals do not require a fee to be paid and the system is “free” at point of delivery.  Introducing large issue fees might stop the scamsters but it would also prevent genuine claimants from getting access to justice and would be a political non-starter.

The second option would be to introduce “costs-shifting” in the ET.  This occurs in the civil courts and means that the winner gets his costs paid by the losing party. In ETs it is very unusual for the Employment Judge to award costs against a party, so the general rule is that each party bears its own legal costs win or lose.  It is this rule that makes it attractive for serial litigants to “try it on” because they know many employers will pay up a “nuisance settlement” sooner or later to avoid the case going to a full hearing because they won’t want to incur legal expenses that they won’t recover from the Claimant.  That is why serial litigants are performing a type of extortion, in my view. 

The problem is in identifying the serial litigants. Someone who has brought fifty claims against fifty different employers ought to be a surefire candidate; but what about someone with ten, or five, or (worryingly) two claims?  An employee who has had the misfortune to be involved in previous ET proceedings is not prevented from bringing his/her claim by this website.  It is for the Respondent (the employer) to adduce the evidence and make of it what it will: similarly the employee can give evidence to explain.  Most employers would probably be keen for costs shifting to be introduced into the ET system, but I can’t see it happening any time soon.  Instead the serial-litigants search system offers a practical option accessible by all.  I don’t have shares in it, I don’t know Gordon Turner or Damian McCarthy (although I do instruct other barristers in his chambers) but I do think it deserves to succeed.  No one is well served by allowing serial litigants to abuse the system, least of all genuine employees with honest claims.  In his email to me Gordon Turner  writes that he is seeking to drum up support from a sympathetic MP to place an EDM in response.  I look forward to news of developments.

 I would be very interested to hear from anyone – lawyer, employer, or MP – who has any information on how widespread this problem is, or any anecdotes on serial litigants (on an anonymised basis please).  

Related posts:

Serial Litigants Beware

Blacklists to be blacklisted?

A Rant about Data Protection

Related posts:

1. How to Deter a Serial Litigant
2. Can Recruiters Relax on Age Discrimination in Advertisements?
3. Serial Litigants beware!

Truly I can see the Future originally appeared on Jobsworth by Michael Scutt on 29/01/2010.

Take a look at this article from The Daily Telegraph.  A good idea in principle but I’m wondering about the Data Protection issues involved, as well as the subsequent satellite litigation that would undoubtedly result.  Does anyone remember the blacklist of “difficult” employees compiled by The Consulting Association (see my previous post on the subject here)?  Or the National Staff Dismissal Register (see here) ? 

I can accept that there is a world of difference between a register kept by employers and passed on to others to identify those employees who stand up for their rigths and those people who bring many different (and fabricated) claims – but how do you differentiate between the two in practice?  I suppose we should bear in mind Oscar Wilde’s aphorism (albeit paraphrased) “To have one Discrimination claim is unfortunate, to have 34 is downright suspicious”.  Preventing someone from asserting their legal rights is not something to be undertaken lightly. 

It’s interesting that the Employment Tribunal isn’t keen to get involved and I can see why.  These serial litigants might turn their hand to defamation or judicial review instead of discrimination claims. Tribunals are wary of awarding costs against litigants and they certainly aren’t going to relish banning individuals from bringing claims. Since 1993 they have had the power to make a “restriction of proceedings order”, but they are very rare.   The way forward is shown  by Her Majesty’s Courts Service, which runs all the civil and criminal courts (but not the Tribunals) in the country and which maintains a list of vexatious litigants on its website (www.hmcourtsservice.gov.uk).  However, the people listed on there will have been declared a vexatious litigant in proceedings and thus there has been a judicial finding.  If Mr Turner’s idea is to get off the ground (and it deserves to) he will need the ET to be more robust in making  “restriction of proceedings orders” and then publishing that list. 

Related posts:

1. How to Deter a Serial Litigant
2. Barrack Room Lawyers Beware

Serial Litigants beware! originally appeared on Jobsworth by Michael Scutt on 25/11/2009.