Do not insult your judges: more on the problematic order refusing access to prosecute any more cases before the UN Appeals Tribunal

In its order of 6 September 2019, the UNAT orders an applicant to pay a certain amount for “abusive behavior” and surprisingly enough orders that the applicant “will be refused access to prosecute any case before the Appeals Tribunal if she fails to timely comply with the [o]rder” (UNAT Order No. 353 (2019)). The order in question obviously raised a lot of eyebrows as refusing access to prosecute any case before the UNAT equals a lifelong sentence of effective denial of access to justice.

Background:

The UN Appeals Tribunal (UNAT) has, on more than one occasion, ordered litigants to pay fines for unacceptable conduct and abuse of process pursuant to its internal rules.

The practice in itself is questionable. The Statute of the UNAT foresees in its article 9 § 3 that “the Appeals Tribunal shall not award exemplary or punitive damages”. The same article 9 provides in § 2 however that “where the Appeals Tribunal determines that a party has manifestly abused the appeals process, it may award costs against that party”. It follows from this reasoning that an abuse of process may allow the UNAT to award costs, rather than a fine, against such party.

In an earlier decision, the UN Dispute Tribunal (UNDT) considered that:

“Whereas the right to access to justice is sacrosanct and is treated as such by this Tribunal, the Tribunal will nevertheless not hesitate to punish the misuse of its procedures by any party. The conduct of proceedings before the Tribunal considerably taxes both its resources and those of parties appearing before it. Where the Tribunal determines that any applications before it are frivolous, vexatious and/or an abuse of the Court’s process, it will sanction the offending party accordingly.”

(UNDT/NBI/2013/088, consideration 44)

This decision and others were confirmed by the UNAT on appeal.

The UNAT order of 6 September 2019, however, does not only order the applicant to pay a certain amount but moreover orders that the applicant “will be refused access to prosecute any case before the Appeals Tribunal if she fails to timely comply with the [o]rder”. As stated above, the order in question raised a lot of eyebrows as refusing access to prosecute any case before the UNAT equals a lifelong sentence of effective denial of access to justice, without any possibility to reverse the sentence following expiration of the deadline imposed by the UNAT.

As it turns out, the applicant never paid the amount ordered.

A more recent judgment of the UNAT (UNAT Judgment No. 981 (2020)) involving the same applicant has now implicitly overturned the initial order by stating in its consideration 34 that:

“The Tribunal ordered [the applicant] to pay USD 600 and decided that she would be refused access to prosecute any case, in connection with Case No. [xxx], before the Appeals Tribunal, if she failed to timely comply with that Order. [the applicant] never paid $600 as ordered. Subsequently, Case No. [xxx] was administratively closed.”

With this consideration the UNAT now suggests that not complying with the order to pay merely has consequences for this specific case but nevertheless closes the case in question. This is in clear contrast with the initial order refusing “access to prosecute any case before the Appeals Tribunal”.

Although order has returned on the issue and access to justice seems to be restored, the last is certainly not said about the purpose, nature and consequences of the cost awards for abuse of process.