England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE SILBER
[2010] EWHC 73 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/01/2011

Lord Justice Pill :

1. This is an appeal by the Secretary of State for Justice ("the Secretary of State") against a decision of Silber J on 22 January 2010 whereby he dismissed the appeal of the Secretary of State against a decision of an Employment Tribunal held in Central London allowing the appeal of Mrs Debra Jane Slee ("the respondent") against the decision of the Secretary of State to refuse her long-term compensation under the Justices of the Peace Act 1949 (Compensation) Regulations 1978 ("the Regulations") (SI 1978/1682)), made under section 42 of the Justices of the Peace Act 1949 ("the 1949 Act"). The Regulations are generally known, it seems, as the Crombie Regulations. The Tribunal listed a remedies hearing which, because of appeals, has not yet taken place.
2. The Tribunal found the following facts:

"The claimant is a qualified solicitor. She commenced employment with the Magistrates' Courts Service in April 1982, initially in Bournemouth, and then at Newham Magistrates' Court. Her contract of employment was as a Justices' Clerk's Assistant under the Joint Negotiating Committee (JNC) Conditions of Service. In July 1993, she was appointed to the post of Court Clerk, later called legal Adviser, at Wimbledon Magistrates' Court, again as a Justices' Clerk's Assistant under the JNC Conditions of Service, and that was the contractual position throughout her employment. Mr Nicholson was then also a court clerk. The role of a court clerk is primarily to sit in court with the justices, and to advise them as to the law, procedures and practices applicable to the matters before them, but the role comprises a number of out-of-court duties as well. Mr Packer was in place as justices' clerk, and remained so until August 2002.

Until very recently, the role of justices' clerk was determined by the history of the office. In the years before the Justices of the Peace Act 1949, justices' clerks were lawyers in private practice who worked only part time at the court. The duties to ensure that his court properly carried out its judicial functions and to attend to the court's administration were vested in the justices' clerk. He was solely responsible for running his court, and he was paid from the fines and court fees he collected. The 1949 Act created a Magistrates' Courts Committee (MCC) for each of a number of designated areas. Wimbledon Magistrates' Court was within the area of the Merton MCC. . . The MCC had executive responsibility for funding and administration of their local magistrates' courts, including appointing and paying the justices' clerk, but the Act did not set out the duties and responsibilities of a justices' clerk save as Collecting Officer, and he continued to be the person answerable for the performance of all the judicial and administrative functions necessary to the proper operation of the court. That position continued, except for the period 1 April 1995 – 31 March 2001 when some of the duties were vested in the justices' chief executive, until about summer 2002 when a root and branch re-organisation of the magistrates' courts got underway."

3. The appeal turns on the construction of the Regulations and upon the role of the respondent when employed at Wimbledon Magistrates Court. At this stage, I merely summarise. In 1993, the respondent was appointed a court Clerk/Legal Adviser at the court where Mr Packer was Justices' Clerk ("JC"). In 1994, she was appointed Training Manager and in 1996 Director of Executives Services, Policy and Training. In that role the respondent was given the title Deputy Justices' Chief Executive. In 1996 the respondent (and a colleague Mr Nicholson) had been given by Mr Packer the delegated power of acting clerk to the justices so that in his absence she could act as the JC. On a reorganisation in 2003, the respondent applied for and failed to obtain a newly created post as Bench Legal Manager ("BLM") at the court.
4. From early June 2004, the respondent was absent from work first as a result of ill-health and then because of maternity leave. She was due to return to work on 7 April 2005 but, on the previous day, wrote claiming that she had been constructively dismissed. The respondent has also made claims against the appellant at an Employment Tribunal for unfair dismissal, sex discrimination and breach of the Maternity and Parental Leave Regulations 1999. These claims have been disposed of and this appeal is concerned only with the claim under the 1978 Regulations, as amended.
5. The first issue is whether the respondent's employment fell within the definition of those qualified for benefits under the Regulations. Those who come within the Regulations qualify for consideration of very generous compensation if they lose their posts owing to a reorganisation. In addition to resettlement compensation, there may be eligibility for long-term compensation which may amount to two-thirds of salary to the age of retirement. The second issue is whether the Tribunal was entitled to hold that, on dismissal, the respondent had sought suitable employment, within the meaning of that term in the Regulations.
6. The respondent's role has to be considered in the context of arrangements for the administration of justice at Wimbledon Magistrates Court. The office of JC is of course of long standing and has carried broad responsibilities, administrative as well as assisting the justices in their judicial capacity. The succinct summary in paragraph 2 of the Tribunal's decision has not been seriously challenged.
7. On 1 April 1995, a role of Justices' Chief Executive ("JCE") was introduced by statute. On 1 April 2001, in the London area, the Greater London Magistrates' Court Authority ("GLMCA") was established and JCs came to be employed by that authority.
8. As at 2 February 1995, the JC at Wimbledon was Mr Packer. In April 1995, he became JC/JCE and continued in that role until April 2001 when he reverted to the title of JC. In 2002, Mr Packer was suspended from his duties (later completely exonerated). He never returned to his role but that is not material for present purposes.
9. In 2002 and 2003, GLMCA became responsible, we are told, for the management/executive responsibility formerly held by MCCs and JCEs. A restructured hierarchy was proposed. Magistrates' courts in London were amalgamated into five groups. JCs were to be replaced by regional justices' clerks. The tier of assistant or deputy judges' clerk posts was ended and a new post of BLM created, to be responsible for running the legal services of the court. A new role of Bench Officer Manager ("BOM") was also created, to manage the administrative running of the court.
10. The first issue turns on the construction of regulation 3 of the 1978 Regulations, as amended. It provides:

"3. (1) These Regulations shall apply to any person who—

(a) held the office of justices' clerk on 2nd February 1995 and continues to hold such office immediately before the material date; or

(b) was employed in assisting the holder of the office of justices' clerk in the performance of the duties of that office on 2nd February 1995 and either -

(i) remains so employed, or

(ii) left that employment to hold office as a justices' clerk and continues to hold such office,

immediately before the material date.

(2) Paragraph (1) shall apply notwithstanding that the determining authority is not the magistrates' courts committee which had appointed the person to the office of justices' clerk held on 2nd February 1995 or, as the case may be, by which the person was employed on 2nd February 1995".

11. Oral submissions were curtailed by the amount of time allocated for the appeal. Post-hearing written submissions had to be permitted though these have been much more extensive than the court contemplated. At the request of the court, enquiries have been made into the circumstances in which the Regulations under section 42 of the 1949 Act were made. The original Regulations were in the Justices of the Peace Act 1949 (Compensation) Regulations 1954 (SI 1954/1262). On behalf of the Secretary of State, it is averred that it appears likely that the generous compensation provided by the Regulations reflected national concerns about the scale of changes introduced by the 1949 Act and their impact on the role of JCs and their assistants. A significant number of existing office holders would face dismissal when the provisions in the 1949 Act took effect on 1 January 1955. The professionalism introduced into the role of JC by the 1949 Act may well have resulted in the continuation of the generous Crombie compensation in subsequent Regulations.
12. On 1 July 2003, the respondent's post was removed as a result of the reorganisation and that is accepted to be an act capable of giving rise to compensation under regulation 12. That is the "material date" within the meaning of regulation 3(1)(b). Thus the first issue turns on whether the respondent was employed in assisting the holder of the office of JC in the performance of the duties of that office on 2 February 1995 and also whether she was doing so on 1 July 2003, when her post was abolished. The central submission of the Secretary of State is that, contrary to the finding of the Tribunal, the respondent was not predominantly employed in work of assisting the JC in the performance of the duties of that office, within the meaning of regulation 3(1)(b). Her role was predominantly in assisting with responsibilities associated with the JCE role.
13. In summary, the Tribunal held, first, that whatever responsibilities a JCE had in practice undertaken, constituted "the duties of the office of the JC" after 1 April 2001. Even if Mr Packer did continue with JCE type duties after 1 April 2001, when he reverted to JC, whatever he was doing constituted the duties of the office of a JC and anyone assisting him in what he was doing was assisting the JC in the performance of the duties of the office of JC. Secondly, the Tribunal conducted an analysis of the duties of Mr Packer and of the respondent and concluded that she worked predominantly in assisting him in JC duties and not other duties. Both those findings are challenged by the appellant. The duties of JCE are additional to the duties of a JC, it was submitted.
14. In his oral submissions, Mr Lynch QC, for the Secretary of State, put the case succinctly. He submitted that Section 3(1)(b) of the 1978 Regulations did not cover the respondent. The office of JC, as described in the Regulations, attaches to a range of duties. The person can qualify under regulation 3 only if assisting the JC in the duties of that office. Some of the duties of a JC are outside the duties of the "office of JC". If a person's time is predominantly spent in assisting in those additional duties, she does not qualify under the Regulations.
15. There is no crisp specification of the duties involved in the office of JC, it was accepted and averred. Mr Lynch nevertheless submitted that deciding what are the duties of the office of JC is a question of law to be determined by the court, which need not be deterred from doing so by the Tribunal's findings of fact. It is said to be a legal role advising justices on law and practice and including administrative functions closely connected with court processes, such as extending bail, certifying copies of documents and monitoring periodic payments. The office of JC is not, however, managerial or strategic. When a JC became a JCE, a person who assists in JCE duties does not come within the regulation. That remains the position if the JC/JCE reverts to JC but continues to perform JCE type duties additional to those of the office of JC.
16. It was submitted that the Tribunal erred in law in holding that whatever a JC did came within the definition in the regulation. To the contrary, there are duties additional to those relating to the office and a person assisting with those duties does not come within the regulation. Mr Lynch accepted that the respondent would succeed if her work came within the definition in the regulation both on 2 February 1995 and on 1 July 2003. At both dates, the respondent was assisting someone whose title was JC. From 1997 to 2001 the title of the person she was assisting was JCE. It was not suggested that the distinction between the role of BLM (for which the respondent was not selected) and BOM had come into effect at the second material date.
17. It is accepted on behalf of the Secretary of State that prior to the Magistrates' Court Committee ("MCC") taking overall responsibility for the administration of Magistrates' Courts in their area pursuant to the Police and Magistrates' Courts Act 1994, the administrative and managerial organisation of the Magistrates' Courts was variable between courts and lacked a coherent, unitary structure.
18. Mr Lynch referred to two cases in which similar issues have been considered. In Bowden v Northamptonshire Magistrates Courts Committee & Anr (The Times, 16 February 1993), Mr Bowden was appointed by an MCC as "Chief Executive to the MCC" (an office different from that of JCE later created though it may have presaged its creation). He was held not to be "employed in assisting" a JC within the meaning of the Regulations. It was common ground that, on appointment as Chief Executive, Mr Bowden ceased to be a JC. He became an employee of the Committee. There was an extensive written job description. Hutchison J accepted the submission that the object of the post must be to provide assistance and that this almost inevitably means that the person concerned must be a subordinate. As Chief Executive to the MCC, Mr Bowden did not come within "a specific category of persons who were assistants to justices' clerks". It could not "embrace a person holding the post which Mr Bowden held on the relevant date".
19. That is a quite different issue from the issue in the present case and throws little light on it. Hutchison J's description of the statutory background is helpful by way of background, though not bearing directly on the present issues:

"Justices for each petty sessional division or borough used to appoint their own clerks who held office during the pleasure of the justices, being liable to dismissal at any time. However, the Justices of the Peace Act 1949 created Magistrates' Courts Committees with administrative responsibility for maintaining an adequate and efficient service of magistrates' courts, and vested in those committees (amongst other duties) that of appointing justices' clerks who thereafter held office during the pleasure of the Committee, subject to certain limitations in the exercise of their powers of dismissal.

The Act also provided (Schedule 4 paragraphs 9(1) and (2)) for the committee to appoint a clerk to the committee and such other officers if any as the Secretary of State might approve; and laid down that, where there was a separate committee for a borough or a county not divided into petty sessional divisions, the clerk to the borough or county justices should, by virtue of his office, be clerk to the committee. The Act made provision for the employment of any staff provided for the justices' clerk. It also, by section 17, imposed on the committee an obligation in relation to training of justices, the carrying out of which in practice fell largely on the clerk to the committee.

There have, of course, been other statutory provisions since the 1949 Act: but the importance of the latter is that, as from that date, the responsibility for appointment of justices' clerks fell on the newly created Magistrates' Courts Committees. The clerk to the committee was either the justices' clerk, whom they appointed but whom they did not employ; other staff whom they did employ; and those categories of officers approved by the Secretary of State, who had given general approval to the appointment, where desired by the committee, of an officer of the local authority as financial adviser or as architect to the committee."

20. In Berkshire & Oxfordshire Magistrates Court Committee v Gannon & Anr [2000] ICR 1003, the applicants were employed on the administrative staff of a Magistrates' Court, spending 25-40% of their working day performing duties delegated to them by the clerk to the justices. An Employment Tribunal held that, as an "appreciable" part of their duties was in assisting the JC, they came within the definition in regulation 3(1)(b).
21. Carnwath J remitted the matter for rehearing holding that the Tribunal had misdirected itself in holding that, for the purposes of the regulation, assisting the JC need be no more than an "appreciable" part of the employment. More was required. In expressing regret that he could not finally dispose of the case, Carnwath J stated, however, at paragraph 27:

". . . It would be convenient if one could treat that dividing-line, between delegated and non-delegated functions, as corresponding precisely to the relevant distinction under regulation 3. However, that is not how the regulation is drafted. Nor does it appear, from the Tribunal's finding, that there was in practice a clear dividing-line. Even the non-delegated functions seem to have been considerably more significant than those of 'typists, secretaries or ushers.' A conclusion that these duties, or some of them, also amounted to 'assisting the clerk', in the sense defined by the Tribunal, would not necessarily be unreasonable."

Carnwath J appears to have been receptive to a comparatively broad approach to the definition of duties amounting to 'assisting the clerk' under regulation 3(1)(b). He also acknowledged the difficulty of providing a clear dividing line between different functions.

Role of a Justices' Clerk and Justices' Chief Executive

22. In considering what are the duties of the holder of the office of JC, within the meaning of regulation 3, Mr Lynch referred to the 1949 Act and statutes which have followed it. Section 19 of the 1949 Act provided:

"(1) Justices' clerks shall be appointed by the magistrates' courts committee and shall hold office during the pleasure of the committee, and the committee may appoint more than one justices' clerk for any area.

(2) A justices' clerk shall be paid a salary for his personal remuneration, and the salary shall be deemed to be remuneration for all business which he may by reason of his office as justices' clerk be called upon to perform, other than any duties as secretary to a licensing planning committee under the Licensing Planning (Temporary Provisions) Acts, 1945 and 1946.

(3) A justices' clerk may be paid a single salary in respect of two or more clerkships.

(4) Subject to subsection (6) of this section, a justices' clerk shall be provided with the accommodation and staff, and the furniture, books and other things, proper to enable him to carry out his duties.

(5) A justices' clerk shall, in addition to his salary, be paid the amount of any expenses of a description specified when his salary is determined, being expenses incurred by him with the general or special authority of the magistrates' courts committee.

(6) Where a justices' clerk devotes part of his time to work other than the duties appertaining to his clerkship or clerkships, he may be arrangement with the magistrates' courts committee make use for the purpose of those duties of any accommodation, staff or equipment which he has for other purposes, and the sums payable to him under the last foregoing subsection may include payments for accommodation staff or equipment so provided by him, whether or not he thereby incurs additional expense.

(7) Any staff provided for a justices' clerk shall be employed by the magistrates' courts committee but shall work under the direction of the clerk, and subject to this Act the committee may make any arrangements they think fit for staff to be engaged and dismissed, and the terms of their employment fixed, on behalf of the committee."

Some of those provisions plainly contemplate that JCs may be part time, a frequent occurrence at that time.

23. Section 5(3) of the Justices' of the Peace Act 1968 provided:

"It is hereby declared that the functions of a justices' clerk include the giving to the justices to whom he is clerk or any of them, at the request of the justices or justice, of advice about law, practice or procedure on questions arising in connection with the discharge out of session of their or his functions as justices, including questions arising when the clerk is not personally attending on the justices or justice, and that the clerk may, at any time when he thinks he should do so, bring to the attention of the justices or justice any point of law, practice or procedure that is or may be involved in any question so arising; but the enactment of this subsection shall not be taken as defining or in any respect limiting the powers and duties belonging to a justices' clerk or the matters on which justices may obtain assistance from their clerk."

Similar provisions appear in subsequent statutes (section 28(3) and (4) of the Justices of the Peace Act 1979, section 45(4) and (5) of the Justices of the Peace Act 1997 and section 28(4) to (7) of the Courts Act 2003). In the 2003 Act, the provision appears in a section headed "Functions" and contemplates judicial functions, section 28 providing:

"(1) Rules may make provision enabling things authorised to be done by, or before a single justice of the peace to be done instead by, to or before a justices' clerk.

(2) Rules may also make provision enabling things authorised to be done by, to or before a justices' clerk (whether by virtue of sub-section (1) or otherwise) to be done instead by, to or before an assistant clerk."

24. The importance of the clerk being independent when acting in a judicial capacity whether on his own account or when advising magistrates, is recognised by statute. The sections have been inserted for that purpose and, while properly emphasising the significance of the judicial role, do not in my judgment define or limit the duties of a JC.
25. Mr Lynch relied on the focus in those provisions being upon the judicial duties of a JC, though accepting that the presence of the word "include" means that the definition is not exhaustive of the duties involved in the office. Mr Lynch submitted that the duties of JC relate to his acting, where permitted, as single justice, advising on law, practice and procedure both in and out of court, providing legal training to justices, performing administrative duties linked to the performance of the criminal process at the court, training and managing the legal team of court clerks and paralegals, acting as collecting officer, keeping a record of proceedings, and similar responsibilities.
26. In December 2008, the Justices' Clerks' Society issued a document entitled 'The Role of the Justices' Clerk and the Legal Adviser'. The first paragraph provides:

"The Justices' Clerk (of whom there are forty nine in England and Wales) occupies a unique position within HMCS in that, although a civil servant and subject to the management of the Area Director for administrative purposes, he/she has complete independence when undertaking judicial functions and giving legal advice to magistrates. He/she is appointed as a Justices' Clerk under the Courts Act 2003 by the Lord Chancellor and designated as such after consultation with the Lord Chief Justice."

27. It is stated that "the Justices' Clerk may delegate these functions to a legal adviser (Assistant Justices' Clerk in statutory terms)". With respect both to the functions of the JC and the legal adviser, the report rightly concentrates on the role of the JC in performing judicial functions and in supporting the justices in the performance of their judicial functions. The need to "act in conformity with the Bangalore Principles of Judicial Conduct" is stated. Duties both in and out of court are considered. A very wide range of out of court functions is specified including membership of the HMCS Area Management Teams and working with other criminal justice agencies, including local Criminal Justice Boards, on operational issues and implementing new initiatives. It is neither asserted nor admitted that such activities, including work for administrative purposes, is work outside the duties of the office of JC and there is no hint of a division of duties into those performed in the office and any performed outside.
28. This is, with respect, a helpful appraisal by the professional body. While in no sense binding or definitive, it emphasises the central judicial character of the duties of the office but does not support a limited or inflexible view of these duties.
29. The Justices of the Peace Act 1997 ("the 1997 Act"), created, at section 30(A), a body corporate known as the GLMCA and provided that it shall be the MCC for Greater London. The role of a JCE was defined at section 41, which provided:

"Role of justices' chief executive. E+W

(1) The justices' chief executive appointed by any magistrates' courts committee shall make arrangements for the efficient and effective administration of the magistrates' courts for the area to which the committee relates.

(2) For that purpose the administration of the magistrates' courts for the area to which a magistrates' courts committee relates includes—

(a) the exercise of the function of acting as clerk to the committee; and

(b) the exercise of all of the functions conferred or imposed on justices' chief executives by or under any other enactment so far as relating to any of those courts or that committee.

(3) The duty imposed on a justices' chief executive by subsection (1) above shall in particular require him—

(a) to allocate responsibility for what falls to be done in the exercise of his functions among justices' clerks and the staff of the committee; and

(b) to determine the administrative procedures to be followed by them.

(4) The justices' chief executive appointed by a magistrates' courts committee shall make arrangements for discussions relating to matters of law (including procedure and practice) among the justices' clerks appointed by the committee, in particular with a view to securing consistency in the advice given by them to justices about such matters.

(5) The justices' chief executive appointed by a magistrates' courts committee shall perform—

(a) the duties imposed on him by this section; and

(b) any other functions conferred or imposed on him by or under any other enactment,

in accordance with any directions given to him by the committee.

(6) Subject to section 48 below, the justices' chief executive appointed by a magistrates' courts committee may give directions to justices' clerks and the staff of the committee as to the carrying out of their responsibilities (including the performance of any functions conferred or imposed on them by or under any enactment)."

30. The Justices' Clerks Rules 1999 (SI 1999/2784), since replaced by the Justices' Clerks Rules 2005 (SI 2005/545, as amended), specify a very broad range of things which may be done by a justices' clerk. It is too long to set out in this judgment and can be found at Halsbury's Volume 29(2), paragraph 638 at pages 453-455. Many of these things plainly involve judicial activities and can be considered to be exercises of judicial powers. It is provided that many of them can be done instead by a person appointed by an MCC to assist the JC, provided that person has been specifically authorised by the JC for that purpose, under the Rules.
31. Mr Lynch relied on the appointment of the respondent as "Director of Executive Services, Policy and Training" referred to as Deputy Justices' Chief Executive (ET paragraph 19) when Mr Packer was JCE as well as JC. Even after the ending of the JCE post at Wimbledon Magistrates' Court, and the creation of the GLMCA JCE post on 1 April 2001, the respondent maintained that title and signed correspondence as "Director of Executive Services etc". Thus the respondent was continuing to act as Deputy JCE and the duties of the JCE role, a title which Mr Packer had vacated on 1 April 2001, were performed, it was submitted. The duties of JCE were different from those of JC and it follows from her designation, it was submitted, that the respondent was not predominantly assisting in the performance of the duties of the office of JC. It would in any event be surprising, submitted Mr Lynch, if the outside duties involved in employment as JCE were not continued when Mr Packer's designation was changed.

Tribunal's Reasons

32. The Tribunal found that, until the 1949 Act, the JC was solely responsible for running his court. Under the 1949 Act, an MCC was created.

"[They] had executive responsibility for funding and administration of their local Magistrates' Courts, including appointing and paying the justices' clerk, but the Act did not set out the duties and responsibilities of a justices clerk save as Collecting Officer, and he continued to be the person responsible for the performance of all the judicial and administrative functions necessary to the proper operation of the court."

The Tribunal found that Mr Packer was appointed as JCE for Merton and "thus he held the post both of Justices' Clerk and Justices' Chief Executive".

33. The Tribunal analysed in detail the duties of the respondent. She and Mr Nicholson were authorised by Mr Packer on 1 July 1996 "to act as clerk to the justices so that, in his absence or on his direction, either might carry out any of his duties. They were referred to as 'Deputy Justices' Clerks'". The Tribunal accepted that, with respect to some functions, the distinction between JCE functions and JC functions "is blurred or, as Mr Packer put it, the function straddles the roles".
34. Following a very detailed analysis, the Tribunal concluded, at paragraph 35:

". . . Accordingly Mr Packer's post of justices' chief executive in Merton came to an end as at that date [1 April 2001]. Thereafter his only post was justices' clerk. His executive functions of strategic planning, policy, hiring and firing, executive services, disappeared, as did his role as clerk to the MCC and his attendance at MCC meetings. It was not disputed that thereafter he was not subject to direction by the GLMCA except, he told us, 'theoretically' it might direct him to train ushers but could not direct how he did it. He remained, in accordance with his position as justices' clerk, the person who ran the court and was answerable for the performance of all its functions."

35. At paragraph 38, the Tribunal found:

"We noted that, as a consequence of the reorganisation, a substantial number of fresh regulations set out the functions of the single, London-wide justices' chief executive, but there was no evidence that the new justices' chief executive delegated any of those functions either to Mr Packer or to the claimant, whereas we would expect a document to be created to reflect any such delegation. Furthermore, the body that had delegated justices' chief executive functions to Mr Packer was defunct, and the only evidence was that the new body 'did not interfere in courthouses'. The regulations were not brought to our attention until the respondent's final submissions, and neither the witnesses nor the tribunal were referred to any of their particular provisions."

36. The Tribunal found, at paragraph 39, that, after 1 April 2001, Mr Packer's JCE role was defunct. While the respondent considered that she still held the title Director of Executive Services, "she could not have held the substantive post referred to as deputy justices' chief executive".
37. The Tribunal referred to the restructuring by GLMCA in late 2002:

"A new post of bench legal manager (BLM) was to be created to head up the legal team at each court, and to deputise for the regional justices' clerk. The administrative functions were to be undertaken by a bench office manager (BOM). On 31 October 2002, Ms Mansbridge wrote to the claimant that all BLM posts would be ring-fenced to the existing deputies, and accordingly the claimant and Mr Nicholson were both ring-fenced for the one post of BLM at Wimbledon Magistrates' Court, and both applied for it. Ms Preece was ring-fenced for the BOM post."

With effect from 2 July 2003, Mr Nicholson, and not the respondent, was appointed. The respondent lost her role.

38. At paragraph 37, the Tribunal held that "it was only as justices' clerk that [Mr Packer] was duty bound to ensure the functions were carried out and only as justices' clerk he was answerable for their performance . . . he could delegate only the functions vested in him as justices' clerk".
39. It was concluded that, on 2 February 1995, "the claimant's employment was wholly devoted to providing assistance to the justices' clerk in the performance of the duties of that office". At paragraph 57, they noted that, after 1 April 2001, Mr Packer's role as JCE was functus officio. "Whatever he did, he did it as justices' clerk, and the claimant could assist him only in that capacity. We accordingly concluded that, immediately before the material date the claimant's employment was wholly devoted to providing assistance to the justices' clerk in the performance of the duties of that office".
40. The Tribunal added, at paragraph 57.2:

"Whilst Mr Packer was justices' chief executive, that office was the mechanism, with its powers and obligations of delegation amongst court staff, but from 1 April 2001 only the London-wide justices' chief executive had powers to delegate the functions of that office. Insofar as the job description of 1 July 1996 was a contractual document, it was, as was Mr Packer's role of justices' chief executive, functus officio. Those functions set out in it that were attributable to the claimant's deputy justices' chief executive's role but remained for her to do after 31 March 2001, could only have been functions vested or re-vested in the justices' clerk; only the justices' clerk was answerable for their performance, and only Mr Packer as justices' clerk could delegate them to her. The justices' chief executive's functions belonged, in accordance with legislation, to the London-wide justices' chief executive."

41. The Tribunal went on to hold, at paragraph 62, that, if their conclusion was wrong, and they needed to determine the proportion of the respondent's functions that belonged to each of Mr Packer's posts:

"That immediately before 1 July 2003 the claimant's employment was predominantly devoted to providing assistance to the justices' clerk in the performance of the duties of that office."

42. A distinction does need to be drawn between the judicial or quasi-judicial office of JC with its duties as legal advisor on law, legal procedure and practice within a Magistrates Court and the strategic, managerial and general administrative responsibilities of the JCE. Under section 87 of the Access to Justice Act 1999, the JCE ceased to be required to be eligible to be appointed as a JC, thus highlighting, Mr Lynch submitted, the essentially administrative functions of the office of JCE.
43. While I agree with the submission that the duties of the office of JC, and of those who assist in their performance, must be analysed, I am far from persuaded that they exclude all administrative duties in relation to the court. Mundane tasks, particularly in days of financial stringency, may be a part of the duties of the office. It does not offend me that duties such as the word processing of judgments, are capable of coming within the duties of the office of JC. I take the example given by Mr Lynch. The JC (or his assistant) who assists in photocopying and arranging papers for use in court cannot, he submitted, be performing the duties of the office of JC. I do not agree, though that finding is not crucial to my conclusion in the present case.
44. Mr Lynch claimed that the Tribunal had found that the respondent continued to perform duties that were those of the JCE appointment. Evidence was given that "an observer wouldn't notice a difference in what Mr Packer did". At paragraph 37, the functions of court staff were said to be "the functions they had previously carried out save the executive administrative functions that ceased to be carried out within the courthouse". However, I do not consider that, read as a whole, the findings of the Tribunal support that submission to the extent claimed.
45. It was submitted that Mr Packer retained, after 1 April 2001, some of the responsibilities he had been performing as JCE; they did not mutate into the duties of the office of the JC. I accept that the duties of the office of JC may be distinct from whatever a particular person whose job title is JC undertakes. I agree that it is the range and nature of the duties of the office of JC which has to be considered for the purposes of the Regulations. The Tribunal does take the short-cut of saying that because Mr Packer no longer had a role as JCE, he no longer had power to delegate functions belonging to the JCE (paragraph 37) but, when considering the substance, they found his post-2001 activities to be related to the office of JC.
46. In my judgment, the Secretary of State has failed to produce evidence which establishes that what the respondent was doing in assisting Mr Packer in February 1995, or assisting in what he (or his successor) was doing up to 1 July 2003, fell outside assistance in his duties in the office of justices' clerk. The Tribunal was entitled to make the finding it did. The evidence did not establish that Mr Packer after 2001, or the respondent assisting him, was performing, for example, tasks of strategic planning of court structures, which may be beyond the duties in the office of JC. For a very long time a JC has had a general responsibility for running a Magistrates' Court. The Secretary of State has fairly accepted that the statutory schemes do not establish a clear definition of the duties involved in the office of JC. No blueprint of that office has been produced to support the contention that the Tribunal's approach was erroneous in law.
47. I do not consider that the Tribunal erred in law in its consideration of the evidence, in the context of the statutory schemes, or in the conclusions it reached. In the present case, the statutory changes, including the creation for a time of the office of JCE, did not preclude a finding that, on 1 July 2003, as on 1 February 1995, the respondent was covered by regulation 3(1)(b) of the 1978 Regulations.
48. It is not disputed that the offices of JC and JCE are separate. The respondent claims that the evidence points strongly to the assistance being given by the respondent to the JC at both material dates was such that she was assisting him in the duties of that office and the Tribunal was entitled so to find. Of long standing though the office of JC is, there is no evidence which establishes that, save arguably for the period when there were JCEs, a general responsibility for the management and administration of a single Magistrates Court was a function beyond the duties of the office. Under and since the 1949 Act, the MCC had overall duties but its performance of them did not involve a retraction or diminution of the duties of a JC at a particular court.
49. The Secretary of State would, in any event, need to establish that there was a substantial hangover, when the role of JCE was abolished in 2001, first, that the nature of the office of JC was such that it could not comprehend such of the JCE duties as remained in a particular court, and, secondly, that such duties were in fact performed by the JC and those assisting him in his office. In my view, the Secretary of State has succeeded on neither count. As the Tribunal found at paragraph 38, there was no document delegating the Chief Executive's functions to Mr Packer.
50. I agree that the reversion to the title JC would not necessarily exclude duties which could not properly be described as the duties inherent in the office of JC but more has to be proved if it is to be established that the work done by the respondent fell outside assisting the JC in the duties of that office. The respondent's somewhat grand title does not of itself provide the necessary evidence. Experience shows that in hierarchical organisations, the adoption of a title may be accepted, or even welcomed, but may not reflect the reality of the work done.
51. There is some ambiguity in the findings of fact as to what the respondent was doing, but the overall picture is one of work by the respondent which predominantly brought her within the regulation 3(1)(b) framework. I do not agree that the titles adopted are conclusive, but I otherwise agree with the result stated by Silber J at his paragraph 53:

"By July 2003, there was no longer a JCE as that role had lasted from 1 April 1995 until 31 March 2001 when the GLMCA came into existence. This meant that until his suspension, Mr. Packer then resumed the duties of justices' clerk, which was his only job and as his appointed assistant, the claimant could then only perform assistance to Mr. Packer as the justices' clerk in the performance of the duties of that office. Mr. Coppel contends that many of the functions of the claimant in which she was assisting the justices' clerk with were concerned with the performance of his duties as a JCE but that cannot be right because as at 1 July 2003, there was no longer a JCE. So Mr. Coppel's point is based on a false assumption and it must therefore be rejected. On that basis, the case for the respondent on the regulation 3 point in relation to the position on 1 July 2003 must fail. Indeed even if after the abolition of the post of JCE, the justices' clerk who the claimant was assisting was performing functions which he had previously performed as a JCE that is irrelevant because those duties were by then the duties of a justices' clerk "in the performance of the duties of that office". After all, it is difficult to see who else could have performed those duties."

52. Mr Lynch went on to analyse and criticise those findings of fact, adopting submissions made by other counsel at the hearing before Silber J. As a matter of law, it was submitted, the management of the court keeper, court security staff and ushers was the responsibility of the MCC and later the GLMCA (Criminal Justice Act 1991, section 76). The Tribunal has erred in considering the duties carried out by the person who held the office of JC rather than by considering the duties of the office. Provision of training for trainee legal advisers was the duty of the MCC (1997 Act section 31(3)), though it was accepted that time spent delivering the courses, as distinct from providing them, would normally be a JC function. The Tribunal were also wrong, it was submitted, in finding that setting general objectives for staff performance was a function of the JC. When duties "straddled" both roles, the Tribunal should have identified which of these functions belonged to each office and how much time the JC devoted to each. It was submitted (and the arithmetic is not challenged) that the Tribunal has over-estimated the percentage of time spent by the respondent in court advising the Bench. In the year up to 1 July 2003, it was 23.5% of her available hours, as opposed to "almost 34%" found by the Tribunal.
53. Even allowing for that arithmetical error, I do not find the Secretary of State's submissions on this issue persuasive. There is no statutory definition of the extent of the duties inherent in the office of JC. The judicial function is central to them but there is a long history of JCs performing administrative work connected with the running of the courts to which they are attached. It may have been intended, by the creation of JCEs, to improve administration of courts by creating an administrative role distinct from the traditional role. That experiment did not last beyond 2001. In that year, a new office was created, as found by the Tribunal who referred, at paragraphs 38 and 57.2, to the London-wide justices' chief executive.
54. I am not persuaded that the office of JC has a legal status such that a Tribunal is constrained by law from conducting an analysis of the duties performed. I am not persuaded that the duties performed by Mr Packer (and his successor) from 2001 and up to the material date, and the assistance given to him by the respondent in performance of those duties, were duties predominantly other than those pertaining to the office of JC. The Tribunal carefully considered those duties and reached conclusions it was entitled to reach. Real doubt is not cast on an analysis conducted with an appropriately broad view of the duties of the office of JC.
55. While the Tribunal was not entitled to hold that because Mr Packer was called JC all he did necessarily came within the duties of the office of JC, on the facts, their conclusion that the work done predominantly fell within those duties was, in my judgment, entirely justified. Conferring on the respondent the title Deputy Justices' Chief Executive does not necessarily mean that her duties at the material date were predominantly other than assisting the JC in the performance of the duties of that office.
56. On this issue, I would dismiss the appeal.

Ground 2

57. The second issue turns on the construction of Regulation 12. It provides, in so far as is material:

"(1) For the purpose of determining whether long-term compensation for loss or diminution of emoluments should be paid to any person and, if so, the amount of the compensation (subject to the limits set out in these Regulations) the determining authority shall, subject to the provisions of paragraphs (2) and (3), have regard to such of the following factors as may be relevant, that is to say—

(a) the conditions upon which the person held the office which he has lost, including in particular its security of tenure, whether by law or practice;

(b) the emoluments and other conditions, including security of tenure, whether by law or practice, of any work or employment undertaken by the person as a result of the loss of office;

(c) the extent to which he has sought suitable employment and the emoluments which he might have acquired by accepting other suitable employment which, after he has received from the magistrates' courts committee by whom he was employed either written notice that his office was to be terminated or written notice of termination of his office, has been offered to him in writing;

. . .

(e) all the other circumstances of his case,

Provided that if at the time when the claimant first undertook the office which he has lost, or in which he has suffered a diminution of emoluments, proposals had been made leading to the event specified in Regulation 4 to which the loss or diminution was attributable, no account shall be taken of that fact.

(2) In ascertaining for the purposes of paragraph (1)(b) and (1)(c) the emoluments in respect of any work or employment that gives the employee or his widow, child or other dependant the right to benefit under a pension scheme under which the employee is not under an obligation to pay contributions, the amount of emoluments shall be increased by the amount of contributions which the employee would have to pay to secure equivalent benefits under a pension scheme in respect of which both the employer and the employee are under an obligation to pay equal contributions.

(3) Regulation 7(4) shall apply for the purposes of this Regulation in ascertaining whether a person has been offered suitable employment."

The issue is whether the Tribunal erred in finding that the respondent had "sought suitable employment' within the meaning of that term in Regulation 12.

58. It is submitted that the Tribunal erred in law in its application of regulation 12. The Secretary of State submitted that the words "suitable employment" should be given their ordinary meaning. "Suitable" in regulation 12 should not be construed as having the same meaning as in regulation 7 which, in the context of regulation 12, would be far too restrictive. Regulation 7 deals with conditions for payment of resettlement compensation which is of course a different subject from the long-term compensation specified in regulation 12.
59. Regulation 7 provides, in so far as is material:

"Conditions for payment of resettlement compensation

(1) Without prejudice to any other requirement of these Regulations, the conditions for the payment of resettlement compensation to any person are that –

. . .

(f) he has not, subject to paragraphs (3) and (4), after he has received from the magistrates' courts committee either written notice that his office was to be terminated or written notice of termination of his office, been offered in writing –

(i) any relevant employment which is reasonably comparable with the office he has lost, or

(ii) any employment specified in paragraph (2) which is suitable for him.

(2) For the purposes of paragraph (1)(f)(ii), the following employment shall be deemed to be suitable –

(a) in the case of a person holding the office of justices' clerk, the holding of another such office; and

(b) in the case of a person assisting the holder of the office of justices' clerk, the holding of the office of justices' clerk, or employment assisting the holder of such an office:

Provided that the said employment shall be at the same place or in the same locality as that where the person who has lost office was employed immediately before his loss.

(3) In ascertaining for the purposes of this Regulation whether a person has been offered employment which is reasonably comparable with that which he has lost, no account shall be taken of the fact that the duties of the employment offered are in relation to the administration of a different service from that in connection with which his office was held or are duties which involve a transfer of his employment from one place to another within England and Wales.

(4) For the purposes of this Regulation, where the determining authority are satisfied –

(a) that acceptance of an offer would have involved undue hardship to the person;

(b) that he was prevented from accepting an offer by reason of ill-health or other circumstances beyond his control; or

(c) that, either before the coming into operation of these Regulations or before the employer gave him written notice that his employment was, or was to be, terminated, an offer –

(i) has not been accepted by him, and

(ii) has lapsed or otherwise terminated,

no account shall be taken of that offer.

60. The Tribunal summarised the submissions on behalf of the respondent:

"For the claimant [the respondent] Ms Heal submitted that 'suitable' is a term of art particular to the Crombie Regulations, so reg 12 refers back to reg 7. Thus only employment as a justices' clerk or assistant to a justices' clerk, in the same place or locality, would fall within the provision, and the claimant had sought such employment to the full extent possible. A duty generally to mitigate was not comprehended in the regulations. That duty arises in claims for damages, or, for example, under s123 of the Employment rights Act 1996. If Parliament had intended there to be such a duty under the regulations, it would have said so."

61. The Tribunal agreed with that submission stating, at paragraph 64:

"We agreed with Ms Heal that the Crombie Regulations did not require a claimant to "mitigate" her loss in the ordinary sense, or to seek employment that was "suitable" in its ordinary meaning. The regulations apply to a tiny and peculiar class of employees. It was not necessary, and certainly not compelling, to construe the very particular provisions in accordance with legislation applicable to all employees. There was nothing on the face of the regulations to suggest that we ought to do so. We could not agree with Mr Coppel that "suitable" bore different meanings in different parts of the regulations."

62. In accepting Ms Heal's submissions, the Tribunal in my view accepted that "suitable" bore the same meaning in regulation 12 as it did in regulation 7(2) and that, consequently, their view was that only employment as a JC or as assistant to a JC, in the same place or locality, would fall within the provision. The Tribunal also accepted that the "suitable employment" factor is a concept different from the common law duty to mitigate and that is not in issue in this court. The extent of efforts to seek suitable employment is to be considered in the context of this particular statutory scheme.
63. Mr Lynch submitted that, in its opening words, regulation 7 is expressly limited to "conditions for the payment of resettlement compensation". Further, by virtue of regulation 7(2), the definition of employment "deemed to be suitable", which is a very limited category of employment, is expressed to be "for the purposes of paragraph (1)(f)(ii)" of regulation 7, and not even paragraph (1)(f)(i) (reasonably comparable employment). It cannot be applied elsewhere in the Regulations, it was submitted. An urge for consistency is not, as might otherwise be expected, backed by the presence in the Regulations of a definition of "suitable employment". Further, there is, in regulation 12, an express incorporation of regulation 7(4) and, had it been intended to incorporate regulation 7(2) into regulation 12, there would have been a similar incorporation in regulation 12.
64. The wording of regulations 12(1)(b) and 12(2) includes reference to benefits from employment which falls outside the posts of JC, or one who assists a JC, and outside the magistrates' service. It is clearly contemplated, it was submitted, that a wide range of alternative employment should be considered when construing the expression "suitable employment" in regulation 12. There is no reference in regulation 12 to employment which is "reasonably comparable" or "similar" to the previous post.
65. Both parties sought to rely on regulation 32 which makes detailed provision for reviews of long-term and retirement compensation. It introduces some flexibility into the scheme but does not assist in determining what, in a particular case, is suitable employment under regulation 12.
66. Silber J did not agree with the Tribunal on the use of regulation 7 to construe the expression "suitable employment" in regulation 12. At paragraph 116, Silber J stated:

"I am unable to derive any assistance from this provision when construing regulation 12 because the opening words of regulation 7(2) explain that its definition of 'employment deemed to be suitable' is only relevant 'for the purposes of paragraph (1)(f)(ii)'. Clearly if the draftsman of the Crombie regulations had intended that the provision in regulation 7(2) should be relevant for the understanding and interpretation of the word 'suitable' in other provisions such as regulation 12(1) (c) or indeed for any other purpose, it would have been expressly stated or at least it would not have limited its use for the purposes of only paragraph 1(f) (ii)."

67. I agree that the construction of "suitable employment" in regulation 12 should not be determined by the definition of "suitable employment" in regulation 7(2). I accept the submissions of the Secretary of State on that issue. In the finding at paragraph 64 that the word "suitable" bore the same meaning in the two regulations, a finding based on submissions to that effect on behalf of the respondent, the Tribunal erred in law.
68. There remains the question whether, because of the Tribunal's error of law, it is necessary to remit this aspect of the case to the Tribunal. That depends on the materiality of the error and on whether, on a proper application of regulation 12, there is any real prospect that the Tribunal would reach a different conclusion as to its applicability to the respondent. It is accepted that the Tribunal is the relevant fact-finding body for the purposes of regulation 12.
69. At paragraphs 45 to 55 of its reasons, the Tribunal made detailed findings of fact about the conduct of the parties. These findings included, but were not limited to, findings about the respondent's attempts to find employment as a BLM. The finding of a Tribunal on an earlier occasion that an offer of reasonably comparable employment had been made to the respondent was reversed by Silber J in an earlier decision against which there was no appeal. The Tribunal made findings that the appellant had failed to reply to letters and about the respondent's eventual success in finding work as a solicitor in private practice. The Tribunal referred to the hurt and distress caused to the respondent by what the original Tribunal found was the appellant's unfair and discriminatory treatment of her. The Tribunal found that it was not unreasonable for the complainant to feel as she did about applying for fresh employment within the Court Service. The respondent had by letter sought a list of vacancies at BLM or equivalent in a suitable location. The respondent had been employed as a JC's assistant for over 20 years.
70. Silber J, notwithstanding his conclusion at paragraph 116, upheld, at paragraph 120, the finding the Tribunal had expressed at paragraph 65:

"65. We concluded the employment to be sought by the claimant under the regulation in the terms applicable to the new structure was as a Bench Legal Manager i.e. the post equivalent to a justices' clerk or an assistant to a justices' clerk in the old structure, at Wimbledon Magistrates Court or elsewhere in South West London. That is the employment she sought."

71. The Tribunal, however, made further findings of a more general kind which it was entitled to make having regard to the provisions of regulation 12(1)(a),(b), and regulation 12(3), which provides that regulation 7(4) shall apply for the purposes of regulation 12 in ascertaining whether a person has been offered suitable employment. The Tribunal noted, at paragraph 64, that "the regulations apply to a tiny and peculiar class of employees". At paragraph 66, the Tribunal stated:

"In accordance with the regulation, we took into account the following:

66.1 The claimant's employment by the [appellant] was secure, well paid, covered by employment protection legislation and a pension scheme, and had opportunities for promotion. Had she not been dismissed, it seems probable she would have remained in the employment until she reached retirement age.

66.2 In accordance with our findings at paragraph 53 above, the claimant's work is now reliant on solicitors, does not include a pension, is unprotected by employment legislation, has no career ladder, and is less well paid.

66.3 In accordance with our findings at paragraphs 51 and 55 above, the tribunal concluded that the claimant had done all she could to seek suitable employment. The claimant was dependent upon the [appellant's] predecessor in title to apprise her of suitable available posts but, as we found, it did not reply to her enquiries regarding the posts."

These are findings of a general nature which apply on an application of the correct test, which requires an overall approach.

72. The judge gave his reasons for upholding the Tribunal's conclusion:

"121. The Employment Tribunal was entitled to reach that conclusion and to proceed to conclude that the claimant had done all she could to seek this suitable work because:-

(a) 'the claimant's employment by the [appellant] was secure, well paid, covered by employment protection legislation and a pension scheme, and had opportunities for promotion. Had she not been dismissed, it seems probable she would have remained in the employment until she reached retirement age'[66.1];

(b) what was 'suitable employment' for the claimant would have to be considered in the context of the claimant's employment as a justices' clerk's assistant and the Crombie regulations, which deal with justices' clerks and their assistants;

(c) suitable work for the claimant would have included those features and would have entailed using her skills and experience as a solicitor who had been a justices' clerk's assistant and that would mean being a Bench Legal Manager i.e. the post equivalent to a justices' clerk or an assistant to a justices' clerk in the old structure, at Wimbledon Magistrates Court or elsewhere in South West London;

(d) the only way in which the claimant could obtain similar work to that which she had before she was unfairly dismissed was if the [appellant's] predecessor 'appraise(d) her of suitable available posts, but as we found, it did not reply to her enquiries regarding the posts' [66.3]. The history of these enquiries is set out in paragraphs 51 and 55 of the Reasons and they justify the conclusion reached because the claimant did not receive that assistance; and

(e) in those circumstances, the claimant obtained alternative work but that was not 'suitable' because she 'is now reliant on solicitors, does not include a pension, is unprotected by employment legislation, has no career ladder, and is less well paid' [66.2].

122. In reaching the conclusion that the Employment Tribunal did not make an error of law, I have not overlooked the submissions of Mr. Coppel that:-

a) The Employment Tribunal confined the class of "suitable" employment incorrectly. I do not agree as it took account of the claimant's skills and experience, the job which she had before she had been unfairly dismissed and the benefits for her as well as the nature and ambit of the Regulations;

b) The Employment Tribunal was perverse as it reached a decision which was clearly open to it on the facts and the [appellant's] case falls a long way from reaching the Crofton v Yeboah [[2009] IRLR 634] threshold that an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached. In any event, it is noteworthy that the [appellant] has been unable to point to any other specific job which was "suitable" for the claimant; and that

c) The decision of the Employment Tribunal contained an error of law but the wording of regulation 12 gave a wide discretion, which it used to reach its decision."

73. Mr Lynch submitted that it was not open to Silber J to uphold the Tribunal's factual finding on suitable employment when the Tribunal had applied the wrong test. In the light of the Tribunal's error, the judge could not substitute his own view on the issue. That could only be done by a Tribunal properly directed as to the meaning of the words "suitable employment" in regulation 12(1)(c). Mr Lynch submitted that the issue should be remitted to the Tribunal. Only if the Tribunal was "plainly and unarguably right notwithstanding the misdirection" can the decision stand (Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812, per Sir John Donaldson MR).
74. The claimant's personal circumstances must be considered in deciding whether she has sought suitable employment, giving that expression the natural meaning it bears. What is natural, however, must be considered in the context of regulation 12 and the Crombie scheme. It is relevant that she applied for, and did not get, the BLM job at Wimbledon and was not offered the job at Richmond. It is not suggested by the Secretary of State that the factors which Silber J took into account in his analysis were other than relevant. The enhanced protection provided by the Regulations cannot be ignored. The Regulations apply to a very limited class of employees and afford special protection beyond that afforded by ordinary employment protection rights. On the other hand, there is no legal restriction on the type of work a dismissed JC, or JC assistant, may do, notwithstanding the judicial or quasi-judicial nature of those posts.
75. Ms Simler QC submitted that there is only one conclusion to which, on the findings of fact, a Tribunal could properly come on an application of regulation 12 and that is the conclusion reached by the Tribunal. I agree that the conclusion of the Tribunal can be upheld. Regulation 12 sets out the factors which may be relevant for the purpose of determining whether long-term compensation should be paid and, if so, the amount of the compensation. These factors are interrelated and the extent of efforts to seek alternative employment is only one of them. The circumstances of the particular claimant must be considered and the Tribunal's detailed findings of fact appear to me appropriate to the test to be applied under regulation 12. While their main focus was on a position of BLM in south west London, the Tribunal would not have made the findings it did, including those at paragraph 66 of the reasons, unless members were taking a more general view, as regulation 12 requires, of what was in all the circumstances suitable.
76. The Tribunal was entitled to find that only a limited range of employment would in the circumstances have been suitable. The findings of fact cover the correct ground. While I respectfully disagree with Silber J's view that the Tribunal's reasoning did not include an error of law, I agree with him that the Tribunal's decision can be upheld. The error of law does not invalidate the broader fact-finding exercise conducted by the Tribunal or the relevance of the findings of fact to the issue to be determined. In any event, on the facts found by the Tribunal and analysed by Silber J, there is no real possibility that a Tribunal would come to a different decision on this issue.
77. It should also be borne in mind that the case has already been through the Tribunal (and High Court) procedure twice. Strong reasons would be required to subject the respondent to a third round.
78. I would dismiss this appeal.

Lady Justice Arden :

79. I agree with the judgment of Pill LJ on both issues, in the case of Ground 2, however, principally for the following further reasons.
80. For the reasons given by Pill LJ, the expression "suitable employment" in regulation 12 (1)(c) is not limited by the deeming provision in regulation 7(2). This conclusion enables the court to consider whether it is possible to infer from an examination of regulation 12 what might have been Parliament's purpose in using a wider expression in regulation 12(1)(c). It is, in my judgment, possible to make that inference and the inference is this. Regulation 12(1)(b) requires the amount of emoluments actually received to be taken into account. But, unless there is some way of investigating the emoluments actually received, the claimant could take much less well- remunerated employment with a view to boosting the claim for compensation at the expense of public funds. Thus the function, and I would suggest purpose, of regulation 12(1)(c) is to provide the means of ensuring that an appropriate amount is taken into account. On this basis, the purpose of regulation 12(1)(c) is to impose a form of duty to mitigate. It is furthermore consistent with the purpose of regulation 12(1)(c) as I have found it to be that the expression "suitable employment" should not be limited by the deeming provision in regulation 7(2).
81. The next question is whether, if the Tribunal had not made an error of law in its interpretation of the expression "suitable employment", it could without acting unreasonably have properly come to any other conclusion than it did. The proceedings for compensation, however, are ordinary adversarial proceedings between the Secretary of State and the claimant. There has been no suggestion that there was any further evidence which was excluded which might have shown that the respondent could properly have taken better-remunerated employment. In those circumstances, I do not consider that the Tribunal could without acting unreasonably have come to any other conclusion than it did even if it had applied the correct test. There was no evidential basis for any other conclusion, and Pill LJ and the judge have set out the findings that were made.
82. Accordingly, I agree with Pill LJ and the judge that this court can and should determine this appeal without remitting the case to the Tribunal to make any further finding as to whether the respondent sought suitable employment for the purposes of regulation 12(1)(c).

Lord Justice Jackson :

83. I agree that this appeal should be dismissed for the reasons given by Pill LJ and Arden LJ.