England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand
		8th February 2002

MR JUSTICE ELIAS:

The Background

1. Kwik-fit GB is a company operating throughout Great Britain. It specialises in the replacement of tyres, brakes and exhausts on cars. It is part of the Kwik-Fit Group, which is a wholly owned subsidiary of the Ford Motor company. It apparently has some 646 centres in Great Britain of which 110 are located in London (ie within the M25 boundary).
2. The TGWU has been for some two years actively seeking to organise and recruit Kwik-Fit employees in the London area. It has on a number of occasions represented employees in disciplinary and grievance procedures in that region. On 5 October 2001 it submitted an application for recognition by Kwik-Fit in relation to the company's London employees, pursuant to Part 1 of Schedule A1 to the Trade Union Labour Relations (Consolidation) Act 1992. The Central Arbitration Committee ("CAC") held a hearing into that application on 18 December at which there was a wide ranging discussion between representatives of both parties as to the appropriate bargaining unit. The CAC also received written observations in advance of that hearing, and various company documents.
3. Subsequently, on 20 December 2001, the CAC determined that the bargaining unit proposed by the TGWU, namely the two London divisions, was indeed the appropriate bargaining unit. Under the relevant legislation that means that if there is the requisite approval in a ballot of the workers in the relevant unit, the company will be obliged to recognise the union for collective bargaining purposes in respect of wages, hours and holidays.
4. Kwik-Fit now seeks to challenge that determination of the CAC. It has initiated proceedings for judicial review. I granted permission for the application to be made on 29 January. There was some urgency about the application because it was proposed to send out the relevant ballot papers on 18 February. In order not to lose this timetable in the event that the application was unsuccessful, and because there was very little further evidence that needed to be lodged, the parties agreed that there should be a very truncated timetable for exchanging any additional evidence and it has been possible for the substantive hearing to be heard within a week of permission being granted. The TGWU is an interested party and has been separately, and ably, represented by Ms Mountfield.

The legislative context

5. It is necessary to set out the statutory background against which this application is made. The legislation was introduced by theEmployment Relations Act 1999 which created a new schedule - Schedule A1 - to the Trade Union and Labour Relations (Consolidation) Act 1992. The schedule deals with recognition and subsequent variations as well as de-recognition. Recognition itself is regulated by Part 1 of the schedule. The provisions are exceptionally detailed; Mr Bean QC for the CAC accurately described them as being of "byzantine complexity". I will not begin to seek to deal with all the permutations envisaged by the statue but will merely outline the basic structure so that the issues in this case can be placed in context.
6. The purpose of the legislation is to enable a trade union which is refused recognition by an employer to use the legal process to require the employer to enter into collective bargaining. Recognition means that the union should be "entitled to conduct collective bargaining on behalf of a group or workers" (paragraph 1). Collective bargaining, in turn, is defined as "negotiations relating to pay, hours and holidays", unless the parties agree to a broader range of matters (paragraph 3).
7. The process commences with the trade union making a request for recognition from the employer. Certain conditions must be met if the request is to be treated as valid within the terms of the legislation. For example, it must be in writing, be made by an independent trade union and identify the proposed bargaining unit. In addition, the employer (together with any associated employer) must employ at least 21 workers (paragraphs 4 to 9).
8. The employer is given 10 working days to agree the request. If the request is accepted that is the end of the matter. If it is rejected or there is no response, then the union applies for recognition. This is made pursuant to paragraph 11 (2), an important provision in this case which I set out below. (There is a variation of the procedure where the employer agrees to negotiate about the proposed recognition but those negotiations fail to bear fruit).
9. The second stage is the acceptance or otherwise of the application. The CAC must decide two questions in order to determine whether the application can be accepted. First, it must be satisfied that the original request was valid in the way I have described above. Second, it must decide whether it is admissible within the meaning of paragraphs 33 to 42 (paragraph 15). The most important criterion of admissibility is that members of the union must constitute at least 10 per cent of the workers in the proposed bargaining unit, and that the CAC must be satisfied that a majority of the workers would be likely to favour recognition (paragraph 36).
10. The third stage is the determination of the bargaining unit. (That, of course, is the principal issue in this case.) In accordance with the general philosophy that voluntarism is preferable to legal regulation, the CAC must try to help the parties reach agreement as to the relevant bargaining unit. But if that is unsuccessful, then the CAC itself must determine the bargaining unit (paragraph 19 (2)). Paragraphs 19 (3) and (4) set out criteria which must be taken into account in the course of that process. I consider them in more detail below.
11. Once the CAC has determined the bargaining unit, the fourth stage depends on the outcome of that decision. If the bargaining unit determined is the same as that proposed by the union, then a ballot may have to be held. In general, a ballot will not be required if the union has a majority of the workers in the bargaining unit as members (although even then a ballot may be required if, broadly, there are doubts as to whether the majority does want the union to be recognised, or if good industrial relations makes this desirable) (paragraph 22). Otherwise a ballot will be necessary. Where no ballot is required, the CAC simply declares that the union is recognised and entitled to conduct collective bargaining.
12. The position is more complex if the stipulated bargaining unit is not that proposed by the union. The CAC must then decide whether the application is invalid within the meaning of paragraphs 43 to 50 (paragraph 20). The most significant feature here is that the CAC must be satisfied in respect of the stipulated bargaining unit that the 10 per cent criterion and that relating to the likelihood of majority support are met. If not, the application will at that stage be treated as invalid. If it is valid, then the issue as to whether a ballot is required is determined in the same manner as I have outlined above.
13. Where a ballot is required it will be carried out by a qualified independent person appointed by the CAC. The employer must co-operate in the process and permit the union to have access to the workers. The CAC must make a declaration of recognition if the result is favourable; this requires both that those who vote in favour constitute a majority of those voting; and that they constitute at least 40 per cent of the workers constituting the bargaining unit (paragraph 29 (2)).
14. If the vote is against then the CAC must declare that the union is not entitled to recognition. Essentially it cannot re-apply for recognition in respect of that group of workers (or a substantially similar group) for three years (paragraph 40).
15. The consequences of the declaration in favour of recognition are that the employer is obliged to recognise the union in respect of the relevant bargaining unit. In the absence of agreement between the parties, the CAC will be required to stipulate the method by which collective bargaining can be carried out (paragraphs 30 and 31). The ultimate, and only, sanction for failure to comply is specific performance (paragraph 31 (6)).

The determination of the CAC

16. The fundamental question is whether the CAC properly approached its determination of the appropriate bargaining unit. The CAC gave reasons for its determination, as it habitually does. (Surprisingly, there is no statutory duty to do so in relation to this decision, unlike the decision on admissibility where reasons must be given: see paragraph 36 (3)).
17. After setting out the background, the CAC summarised the union and the employer's cases in the following terms:

"Summary of the Union case

7. The Union argued that the two London Divisions were distinct in employment terms from the rest of the Company. There was a London weighting allowance and had, until recently, operated a particular pattern of hours of work. The Union contended that the London Divisions had an identifiable management structure and that final decisions on matters of discipline and dismissal were taken by Divisional Directors alone without formal reference to the Company Head Office. They noted that there was one personnel manager, or Training and Development Manager, in London covering both Divisions.

8. The Union drew the panel's attention to a variety of examples of companies in the transport sector which actively encouraged the decentralisation of collective bargaining, often to a local site level. A number of these were integrated organisations with national operations. It must be presumed, they argued, that these organisations found bargaining decentralisation compatible with the effective management of a centralised organisation. They suggested that their application could not be construed as encouraging the fragmentation of bargaining units since it covered the whole of the London area.

Summary of the company's case

9. In rejecting the Union's arguments, the Company laid especial emphasis on the integrated and centralised nature of its operations. The success of the Company was founded on standardised high quality service provided in each of the Centres. This was reflected in the management of the employment relationship. All fitters and, with appropriate variations to allow for seniority, Centre Managers had the same basic terms and conditions of employment as revealed in the common employment Handbook, the same training, same career ladder, same hours of work and holiday entitlement and identical rosters system. The rules of the profit sharing scheme were nationally designed and applied equally in all Centres based on local profitability. While decision taking in discipline and dismissal matters was taken by a manager or Director at the appropriate level (with more senior staff being handled at Head Quarters level) the same national procedures were used and carefully enforced in all sites.

10. The only flexibility in terms and conditions of employment related to pay since it was both necessary and sensible to adjust pay rates in accordance with local or regional variations. The Company drew attention to the fact that there was no reference to a London Weighting in any of the company literature. They accepted that virtually all qualified and trained fitters in the two London Divisions received an allowance or salary enhancement but noted that similar allowances were paid in Aberdeen and some other locations where they were experiencing recruitment difficulties. While Divisional Directors made recommendations for such allowances, the decision was taken centrally in the Scottish Head Quarters. The Company contended that there was nothing special or unique about the way the London Divisions were managed, with each having a divisional director.

11. The Company expressed concern at the possible consequences of a decision to allow for a London bargaining unit. There was a danger that it might sap morale if different terms and conditions were to apply. More serious was the real possibility of multi-unionism emerging in the future with competing bargaining units in different divisions. Emphasis was placed on the danger of leap-frogging in bargaining."

18. Then after drawing attention to two previous rulings of the CAC which the employers submitted supported their argument, the CAC continued setting out the employer's case:

"As an integrated, national company the only bargaining unit that would be compatible with effective management would be one covering the whole of their operations in England, Scotland and Wales for Tyre and Exhaust Centre staff up to and including Centre Managers."

19. The CAC then set out its own considerations together with its conclusions in paragraphs 13 to 16:

"13. The Act requires the Panel in s. 19.3 (a) to give precedence to the need for the bargaining unit to be compatible with effective management. Other considerations to be taken into account, in as far as they do not conflict this compatibility with effective management, are listed in s.19.4. We have listened carefully to the oral submissions of both parties, have studied their written submissions and have questioned them closely on aspects of their cases. We note that there are no existing local and national bargaining arrangements that apply to Kwik-Fit GB and neither party has argued that any particular distinctive characteristics of the workers or their location apply in this case. We are not of the view that a bargaining unit covering the whole of London and a significant proportion (20%) of the Company's employees can be considered either a small or fragmented unit especially as there are no other bargaining units in the Company (with the exception of Northern Ireland which is, in any event a separate company).

14. We have taken great care in reviewing the points made to us about the need for the unit to be compatible with effective management. We have noted that the union recognises that the company has strong national policies and culture and operates as a national unit. It has suggested that its aim is to negotiate a modern partnership agreement which fits the needs of the business, to remain an efficient `best-in class' business, while meeting the needs of its members. We accept that the company operates centrally and seeks to apply uniform policies and procedures across all sites not just in employment but in wider aspects of operational management. We also accept that there is nothing particularly distinctive about the London divisions which mark them out from the rest of the company although, as both parties agreed, London does have a distinctive labour market. There are, however, aspects of operations such as the handling of disciple (sic) and dismissals, the relative autonomy of Divisional Directors, and the local delivery of training co-ordinated currently by one manager in London which allow us to conclude that it is possible for other aspects of employment practice, such as collective bargaining, to be applied at the London Divisional level. We note that there are many examples of central control being exercised in companies which have opted for a decentralised bargaining structure. That is, the central features of policy and practice and the approval of budgets remain in the control of the centre, a matter the trade unions sometimes find frustrating. We do not believe that collective bargaining covering all of the London Centres would undermine or challenge the continued mode of management preferred by Kwik-Fit GB. In this regard we have paid attention to the two previous CAC decisions drawn to our attention by the company. It seems to us that in both cases particular emphasis was placed on the needs of these two companies to ensure that there was full flexibility of labour between sites and there were particular business reasons why this was necessary. With the relatively rare exception of the movement of staff across the M25 boundary, we have heard no evidence that there is significant movement of fitters to Centres in different Regions, let alone Divisions. The particular features of these cases do not therefore apply to this one.

15. We are required to ensure that the unit is compatible with effective management. The union reminded us that `compatible' means `consistent' or `able to co-exist with'. That is, we are not required to decide on the most effective form of management, merely that what we decide is compatible with effectiveness. Or, to put it another way, we need to examine whether the union's proposed bargaining unit is found wanting and does conflict with effective management. Using this test we concluded that it was possible for a bargaining unit to apply across the London divisions. We noted that it is only recently that two divisions have been created and the previous organisation structure provided a unified management in London. We also note that, within the bounds of national policies, there exists a management team quite capable, in our view, of conducting collective bargaining and able to forge workable relationships with the union. That is, the bargaining unit proposed by the union is compatible with effective management.

16. We cannot predict what the consequence of a London bargaining unit would be on the rest of the company, just as we cannot predict how the company will respond to legislative changes concerning employee participation. We do note, however, that the company has the managerial capacity and the size to exert a strong influence over future events if it so wishes."

The key legislative provisions

20. This case involves a challenge to the determination of the bargaining unit by the CAC. The parties have strongly relied upon the following provisions in particular in their submissions - paragraph 11:

"11 (1) This paragraph applies if -

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union (or unions) that the employer does not accept the request (without indicating a willingness to negotiate).

(2) The union (or unions) may apply to the CAC to decide these questions -

(a) whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit."

21. The other significant provisions are paragraphs 19 (2), (3) and (4). They are as follows:

"19 (1) This paragraph applies if -

(a) the CAC accepts an application under paragraph 11 (2) or 12 (2), and

(b) the parties have not agreed an appropriate bargaining unit at the end of the appropriate period.

(2) The CAC must decide the appropriate bargaining unit within -

(a) the period of 10 working days starting with the day after that on which the appropriate period ends, or

(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.

(3) In deciding the appropriate bargaining unit the CAC must take these matters into account -

(a) the need for the unit to be compatible with effective management;

(b) the matters listed in sub-paragraph (4), so far as they do not conflict with that need.

(4) The matters are -

(a) the views of the employer and of the union (or unions);

(b) existing national and local bargaining arrangements;

(c) the desirability of avoiding small fragmented bargaining units within an undertaking;

(d) the character is of workers falling within the proposed bargaining unit and of any other employees of the employer whom the CAC considers relevant;

(e) the location of workers."

22. The question in issue is how that bargaining unit is to be determined. I find it surprising that the answer to such an important question, which goes to the heart of the CAC's jurisdiction in statutory recognition disputes, has not been unambiguously spelt out in the legislation. Unfortunately, it has not.

A preliminary observation

23. Mr Bean has submitted that the CAC is a statutory body charged with exercising statutory functions of a delicate, sensitive and controversial nature, and that the courts should be wary of intervening in its deliberations. He referred me to certain passages in the judgment of Lord Scarman in the House of Lords' decision in The UK Association of Professional Engineers v ACAS [1981] AC 424 at 441 to that effect, albeit that they were with respect to ACAS rather than the CAC and were concerned with now repealed recognition procedures. I readily accept that submission: courts do not have the relevant expertise, nor is it desirable that these procedures should become a happy hunting ground for lawyers. But as Lord Scarman also pointed out, the courts must ensure that the statutory body stays within its jurisdiction. In this context I take that to mean that the court must at least be satisfied that the CAC has directed itself properly in law, taken account of the matters it is obliged to consider and that there is some evidential basis for its determination. But the weighing of the evidence, the balancing of conflicting factors, is for the CAC alone. The courts must be astute to prevent disappointed litigants seductively dressing up what are really challenges to the merits in the garb of judicial review proceedings.

The grounds of challenge

24. Mr Bowers QC, for the claimants, has argued that the CAC erred in four respects.
25. First, he submits that it misdirected itself by asking the wrong question. He contends that it ought to have considered what was the most appropriate bargaining unit having regard to all the information before it, whereas it approached its task by asking whether the bargaining unit proposed by the union was an appropriate bargaining unit. Having concluded that it was, it went no further.
26. Second, he says that the CAC erred in the meaning and effect it gave to the criterion whether the bargaining unit was "compatible with effective management" in paragraph 19 (3). He argues that as a minimum the proposed unit should not make effective management more difficult or lead to less effective management. Furthermore, he submits that if the employer makes a convincing case for a single status, single bargaining unit within the organisation, then the requirement of compatibility with effective management in paragraph 19 (3) requires that the CAC should adopt the employer's preference.
27. Third, he contends that the CAC had failed to have regard to certain relevant considerations. In particular, he submits that the CAC ought to have reached a view as to whether, if the union's proposed bargaining unit were adopted, there was a risk of encouraging fragmented bargaining outside that unit, as the employer had suggested.
28. Finally, he submitted that the decision was perverse in that given the evidence about the way in which the company was centrally operated, and the potential for fragmented bargaining if the union's proposal were adopted, it was perverse for the CAC to conclude that the proposed bargaining unit was consistent with effective management. However, he realistically accepted in argument that this head of challenge added nothing of substance to the third ground, in the sense that it was predicated on that ground being successful.
29. Mr Bean QC for the CAC and Ms Mountfield for the TGWU both argued that the decision was lawful and valid. The union, but not the CAC, also submitted that the claimant had not taken action promptly as required by CPR 54.5, and that in the circumstances, including the adverse consequences to the union if relief is now granted, no relief should be given even if the approach of the CAC were flawed. I will deal with each of these issues in turn.

Misdirection

30. This argument focuses on three sentences in paragraph 15 of the decision:

"The union reminded us that `compatible' means `consistent' or `able to co-exist with'. That is, we are not required to decide on the most effective form of management, merely that what we decide is compatible with effectiveness. Or, to put it another way, we need to examine whether the union's proposed bargaining unit is found wanting and does conflict with effective management."

31. The claimant says that this demonstrates that the CAC considered that it first had to decide whether the bargaining unit proposed by the union was appropriate, and only if it considered that it was not appropriate was it necessary to go further and consider other potentially appropriate bargaining units. This construction of the decision, Mr Bowers submitted, is also supported by the final sentence of that paragraph:

"That is, the bargaining unit proposed by the union is compatible with effective management."

32. Mr Bowers contends that this is not what the CAC should do. Paragraph 19 (2) requires it to decide "the appropriate bargaining unit". He says that this must mean the most appropriate, or at least the most appropriate on the evidence before it, and there is no justification for treating the union's proposal as having any special or favoured status at all. He accepts that the CAC must consider the union's proposal as part of its overall analysis of the issue, but likewise he submits that it ought to consider any views as to the appropriate bargaining unit expressed by the employer, and to treat them with equal respect. However, if it simply focuses on the union's proposal first, any counter-proposal from the employer will not necessarily even be considered. The CAC would be obliged to take account of any reasons given by the employer as to why it thought the union's proposal was inappropriate, but it could not at the first stage at least consider arguments as to which bargaining unit would be more appropriate. He contends that this is inconsistent with the duty imposed on the CAC by paragraph 19 (4) to take into account the views of the employer and the union before determining the bargaining unit.
33. Mr Bowers also put some weight on the fact that paragraph 19 (2) refers to the need for the CAC to determine the appropriate bargaining unit and not simply a bargaining unit. The use of the definite article, he submitted, showed that it was not acceptable for the CAC simply to choose any bargaining unit which might be appropriate in the sense that it was compatible with effective management; rather it should choose the most appropriate in the light of the contentions of the parties.
34. Mr Bean QC for the CAC, whose argument was supported by Ms Mountfield, disputes this. I understand him to be accepting that the CAC did in fact adopt the approach of considering the union's proposal first (although Ms Mountfield contends otherwise). But he says that they were acting lawfully in doing so. His primary contention is that when paragraph 19 (2) is read in context, it is plain that the CAC should first have regard to the union's proposal. In particular, he relies upon paragraph 11 (2) (a) which identifies the questions which the union is asking the CAC to determine as being whether the proposed bargaining unit or some other bargaining unit is appropriate.
35. Mr Bean says that these two paragraphs should be read together. The CAC must determine the appropriate bargaining unit by posing the question set out in paragraph 11 (2). Paragraph 19 (2) in effect refers back to paragraph 11 (2). That provision, properly interpreted, makes it plain that it is first necessary to determine whether the proposed bargaining unit is appropriate before asking whether any other bargaining unit is appropriate. He points out that that provision does not say that the CAC is to determine "the appropriate bargaining unit", or "the most appropriate bargaining unit". There is no purpose, he submits, in referring to the union's proposed bargaining unit in that way unless it was going to be assessed first and before any other bargaining unit was considered.
36. In response to Mr Bowers' emphasis on the use of the definite article in paragraph 19 (2), Mr Bean relies in turn on paragraph 20 which uses the indefinite article to described the bargaining unit actually selected by the CAC. He submits that the use of the definite article is irrelevant.
37. Ms Mountfield supports Mr Bean's construction by focusing on the general purpose of these provisions and the context in which they were passed. She points out that the statutory provisions only come into play because an employer has refused to recognise a trade union in respect of a particular bargaining unit. She made reference to the White Paper which preceded the legislation, entitled "Fairness at Work" (Cmnd 3968). In particular she relies on a passage at paragraph 4.11 wherein it is stated that -

"the government will bring forward legislation to provide for representation and recognition where a majority of the relevant workforce want it."

38. She submits that there is a perfectly cogent and sensible policy in permitting the union's proposal to be given favourable or privileged status, and to leave the question whether other bargaining units are appropriate or whether modifications are appropriate only if and when that issue has been adversely determined against the union. The CAC is simply determining a particular dispute brought to them, and it is perfectly cogent for it to have to decide the union's proposed bargaining unit first because it was its request for recognition that is in focus.
39. I confess that I have not found the solution to this question altogether straightforward, but on reflection I have reached the clear conclusion that neither set of submissions properly encapsulates the CAC's duties when determining the bargaining unit. I accept Mr Bowers' submission that the CAC is not entitled to consider the proposed bargaining unit suggested by the union first, independently of any potential modifications or other appropriate bargaining units. Equally, however, I reject the contention that the CAC is obliged to determine the most appropriate bargaining unit in the sense of the bargaining unit which would, in a perfect world, best fit the existing management structures. In my judgment the CAC has more flexibility than either approach allows for.

Must the union's proposal receive first consideration?

40. I will first give my reasons why I reject the CAC's construction as to the proper meaning of paragraph 19 (2). It is important to consider what is the consequence of that analysis. In this context it is relevant to note - and this is common ground - that there may be a number of bargaining units which the CAC could in principle properly consider to be appropriate, in the sense that they could be properly determined as appropriate by a panel of the CAC applying the criteria set out in paragraph 19. The CAC may take the view that the bargaining unit proposed by the trade union would, as it were, pass the test of appropriateness, but that a modified bargaining unit, say one adding white collar workers to the bargaining unit proposed by the union, would plainly be preferable in industrial relations terms. On Mr Bean's approach, the CAC would be prevented from giving effect to their view. Moreover, this would be so even if the employer was also in favour of the modified unit. The CAC could only achieve what they considered to be the proper result by concluding that the bargaining unit proposed by the union was inappropriate. Plainly, however, they could not do that unless they genuinely thought it was inappropriate; they could not lawfully say it was inappropriate merely to achieve a more beneficial result. That would simply conceal the fact that they were not in fact carrying out their statutory duty as they perceive it to be; they would not then be considering the union's proposals on its merits independently of other possible candidates.
41. Given the emphasis that Parliament has given to the CAC in the recognition process, and the degree of expertise of its officers, I would be surprised if Parliament had given it such a limited role in considering the union's application. This is particularly so given that its general duty is to promote "fair and efficient practices in the workplace" (paragraph 171). It is hardly conducive to efficient practices for the CAC to identify a bargaining unit it considers less than satisfactory. Moreover, on this analysis the CAC would in effect merely be acting as an examination assessor, to see if the proposed bargaining unit passed the appropriateness test. If, however, it held that the proposed unit was not appropriate, then it would be able to put aside the mortar board, turn from assessor to deliberator, and use its expertise to fashion what it considered to be the appropriate bargaining unit in all the circumstances. But this constructive role would only arise in what might be termed the "default" position, where the union's proposal could not be described as "appropriate".
42. Apart from this general consideration, in my judgment the rejection of this analysis is supported by various other considerations. First, I would have expected paragraph 11 (2) to have been differently expressed if the intention were that the CAC could only determine that some other bargaining unit was appropriate if and when it had decided that the union's proposed bargaining unit was inappropriate. The submission in my view requires the addition of the words "if not" after the word "or" in paragraph 11 (2) (a). This is such a fundamental addition that I consider that it would have been expressly stated had Parliament intended the union's bargaining unit to have such an exclusively privileged status.
43. Second, I think one gets some assistance from the place within the schedule where the paragraphs are to be found. Paragraph 11 is in the section dealing with the union's application. It will be asking the CAC to consider, amongst other matters, whether its proposal is appropriate, and it is not surprising to find a specific reference to that proposal. That is, after all, the issue in which it is most interested. By contrast, paragraph 19 is in the section dealing with the appropriate bargaining unit. It simply provides that the CAC must determine the appropriate bargaining unit without any exclusively privileged status given to anyone's proposal. In my view, the way paragraph 11 is framed provides too slender a base for incorporating its ambiguous terms into paragraph 19. One may equally - and in my view more justifiably - read paragraph 11 consistently with paragraph 19 by construing it as giving the CAC a broad discretion in the choice of bargaining unit.
44. Third, the CAC must take into account the views of the employer and the union when determining what is the appropriate bargaining unit. The inference is surely that they will both be considered by the CAC when reaching its determination. Yet if the construction proposed by the CAC is correct, the employer's views as to the appropriate unit would have no relevance unless and until the union's proposal was found to be wanting. Indeed, as I have indicated, even if the employer was in agreement with much of the union's proposal, but considered that it should be modified in some way, the proposed modification could not be considered at all until the CAC had first rejected the union's proposal as inappropriate.
45. Fourth - and this is really related to the third point - there is considerable emphasis placed in the rules on seeking to secure agreement as to the appropriate unit where possible. It would in my view undermine that policy if the union's proposed bargaining unit was to be tested first ahead of any contrary proposal from the employer, or any modifications which either the CAC or the employer thought desirable, and only rejected if found wanting. The union would naturally be more reluctant to give way if it thought that its proposal would have a prior and unhindered scrutiny when the CAC became involved. I do not think that Parliament intended that to be the case.
46. Finally, there are certain circumstances where the CAC may declare that the bargaining unit has ceased to exist or is no longer appropriate. (Part 3 of the schedule). In the latter case either the union or the employer may make an application. If the CAC declares that the unit has become an inappropriate one, it may determine the appropriate bargaining unit and it will do so by considering essentially all the factors set out in paragraph 19. It does not in those circumstances first have to ask the union what it proposes in place of the original bargaining unit. Clearly, as both Mr Bean and Ms Mountfield have urged upon me, the circumstances in which the question of the appropriate unit arises is there different to those which exist where there is an initial application: in particular, there has been of course a bargaining unit in place. That is true as a matter of fact, but in my view it provides no rationale why, if their arguments are right, the union would not again be given the opportunity to suggest an alternative bargaining unit.
47. Mr Bean suggests that in determining an appropriate alternative bargaining unit where the original unit is held to be inappropriate, it is not open to the CAC to re-visit issues of principle, such as whether the bargaining should be company wide or not. I see no basis for that submission in the statutory language. In my view, they cannot avoid those questions. They must, in my judgment, determine the issue as they would have done had it been an original application: see paragraph 70 (4) and (5). Yet in this context they are not constrained by the union's views as to the appropriate bargaining unit.
48. Accordingly, I consider that this does provide a further reason for rejecting the analysis proffered by Mr Bean and Ms Mountfield.

The most appropriate bargaining unit?

49. However, while I accept Mr Bowers' submissions on this aspect of the case, I do not agree with his related submission that the CAC must choose the most appropriate bargaining unit on the evidence before it. On the face of it, this is a perfectly cogent submission. Indeed, it seems perverse to conclude that the CAC is entitled to determine, as the appropriate bargaining unit, a less rather than more appropriate unit. But in my judgment what is most appropriate depends upon the particular context in which a determination has to be made. The CAC is not engaged in an abstract exercise of deciding how in an ideal world it would map out a company's bargaining arrangements. It is faced with a specific claim for recognition which the employer has already rejected. The employer's opposition may be to any bargaining; sometimes it will be to the particular bargaining unit selected by the union. But the employer's opposition must seriously engage the union's proposal if it is to carry any significance. If the employer is going to suggest an alternative bargaining unit it must be one that would at the very least be capable of regulating the terms of a significant proportion of the workers in the union's proposed bargaining unit. To take an extreme example, it is obviously no answer to a claim for recognition in Bolton that there is a more appropriate bargaining unit in Liverpool. That simply does not meet the union's claim that it should represent a group of workers who want their pay, hours and holidays determined by collective bargaining, and it does not meet the concerns of those workers.
50. If the CAC were to have to determine the most appropriate bargaining unit, independently of the context in which the issue arises, it would in many, perhaps most, cases be reaching a decision of no value which could, moreover, frustrate the statutory process. The company will often be able to suggest what everyone would agree would be, if it could be implemented, a more desirable bargaining unit to that proposed by the union, while of course being unwilling actually to recognise any union in respect of its proposed unit. For example, unions will often pursue recognition following a concerted membership campaign in a particular geographical area or company division. It can hardly have been Parliament's intention that it should fail in its recognition ambitions simply because the employer was able to conceive of a better starting point for collective bargaining, such as recognition nationally or on a regional basis, or through plants rather than divisions. Of course, the position would be otherwise if the union's proposals were not compatible with effective management.
51. I recognise that it is highly unlikely that the CAC can properly take into account the prospect of the bargaining unit being found acceptable to the workers within it (although I have heard no argument directly on that point). That would seem to anticipate the later stage when the degree of support is assessed, by ballot or otherwise. The CAC would in all probability be said to be acting for an improper purpose or taking into account an irrelevant factor if it were to act in that way. But in my judgment that does not preclude the CAC from having regard to the fact that it is determining a claim for recognition on behalf of a particular group of workers located in a particular bargaining unit. It must decide how to progress that claim in order to promote a fair and efficient arrangement, as its general duty in paragraph 171 requires. A determination which fails to have proper regard to the claim of the union, and which effectively stymies their application because of some theoretically more favourable bargaining unit, does not, in my judgment, constitute the encouragement or promotion of fair arrangements.
52. It follows that while I do not consider that the union's proposed bargaining unit can, if deemed appropriate, automatically "trump" other potentially more suitable arrangements or suitable modifications, I consider that the CAC in reaching its determination must have regard to the context in which the question arises. The concept of appropriateness is well able toaccommodate both the need for effectiveness and fairness. A bargaining unit which is appropriate will take into account not only the specific statutory criteria, including the need for the unit to be compatible with effective management, but also the fact that the union is able and willing to conduct negotiations and in that objective has the support of at least some of the workers in the proposed bargaining unit (as it must have for the application to be admissible). How the CAC strikes the right balance between the competing lawful considerations is entirely a matter for them. In the way of things, the positions adopted by the parties over the proposed bargaining unit will sometimes be principled, sometimes tactical, and frequently both. The CAC must cut through these disputed contentions and, in the light in particular of the submissions made and the statutory criteria, do their best to exercise the judgment of Solomon in determining the appropriate bargaining unit.
53. In my judgment in that determination it is perfectly proper for them to have, as one of their objectives, to seek to retain the essence or core of the union's proposed bargaining unit, even where they feel it should be modified. They must of course be satisfied that their chosen unit fairly accommodates the criteria in paragraph 19 and in particular is compatible with effective management. They are not constrained by an obligation to determine some concept of the most appropriate bargaining unit in the sense that it is the bargaining unit which best matches the specified criteria. The statute does not require this, and as Ms Mountfield has observed, there is no power for the CAC to revoke a declaration on the grounds that the bargaining unit no longer reflects the most appropriate unit, only that it is an inappropriate bargaining unit. No doubt the CAC will try to determine the most appropriate bargaining unit taking into account matters I have identified, including the union's proposal. But that is no more than saying that it will exercise its discretion as fairly and reasonably as it can. There is no superadded duty to determine a bargaining unit which it considers would be the most appropriate in any other sense. I have no doubt that it would lead to never ending legal disputes if there were. Equally, however, the CAC are not constrained in their approach by the need to give the union's proposal an uncontested trial against the measure of appropriateness.

Applying the conclusions to the facts

54. Did the CAC err in law by adopting the wrong approach, and, if so, can I properly conclude that it was an error which in all the circumstances made no difference to the result? Ms Mountfield submits that there is in fact no error in the decision. Paragraph 15, she says, clearly shows that the CAC gave proper consideration to the claimant's proposals. I do not agree with that analysis. The only fair reading of the decision in my view makes it clear that at the very least there is a strong likelihood that the CAC only considered whether the union's proposals were appropriate. The CAC appears to have assumed that it first had to determine that question: having concluded that they were appropriate, that was an end of the matter. Accordingly, I consider that it erred in its approach to the issue. This is not just a case of infelicity of expression; indeed, the CAC was simply approaching the matter in the way in which its counsel submitted it ought to do.
55. Can it be said that the result would have been the same even if the CAC had asked the right question? There is authority for the view that exceptionally a court can refuse to set aside a decision of a statutory body which it finds was taken unlawfully, if the public interest requires it: see R v Panel on Takeovers and Mergers ex parte Datafin Plc [1987] QB 815. I am prepared to accept that in principle this could also apply where there was simply no purpose in setting the decision aside because any fresh determination would inevitably be the same. But it will be only in the most exceptional of cases that a court could with confidence reach such a firm conclusion. It is particularly difficult to do so when the body has approached an issue by posing the wrong question. There must inevitably be a degree of speculation as to how it might have considered the evidence, and indeed what other evidence it might have considered relevant, if it had asked the correct question. I do not see how the court can be satisfied that the CAC would inevitably have reached the same decision if it had been aware that it was entitled to vary or modify the proposed bargaining unit.
56. It may be likely - even highly likely - that it would have reached the same conclusion. But in my judgment that is not sufficient justification to deny any relief. The claimant is entitled to a determination in accordance with the law, not one which departs from it even if the conclusion is in fact consistent with the proper legal approach.
57. It follows that subject to an argument about whether relief should be denied because of delay (to which I return below), in my judgment the CAC has erred in its approach in this case and the quashing order the claimant seeks should be granted. However, I have heard arguments on other points and I should briefly state my conclusions upon them.

An alternative argument from the CAC

58. First, I briefly consider an alternative way in which Mr Bean put his case. As I have indicated, his principal argument was that CAC was obliged to accept the union's proposed bargaining unit if it were appropriate. The alternative argument was that even if they were not obliged to do so, they were entitled to do so. Having determined that the union's bargaining unit was an appropriate one, the CAC could, if it wished, go further and consider variations or modifications, either of its own motion or as suggested by the employer, but it is not obliged to do so. It could simply ignore any proposed variations. It was entirely a matter for the CAC whether it chose to do so or not.
59. In part, for the reasons already given I consider this analysis to be flawed. Indeed, I consider this to be less attractive that his principal submission. I cannot believe that Parliament intended such a wide and apparently arbitrary discretion to be conferred upon the CAC, so that one day they might have regard to the employer's submission but not on another, without any rhyme or reason for the distinction. It would not take long for there to be a justifiable perception of unfairness and arbitrariness in the system. This would rapidly damage employer confidence in the system and would, in my view, undermine the integrity of the process and the standing of the CAC itself.
60. Accordingly, I reject this alternative way of putting the argument.
61. I turn now to consider the other grounds relied upon by the claimant.

Misunderstanding of the meaning of "compatible with effective management".

62. In my view this argument is misconceived. I accept that the legislation places considerable emphasis on the significance of the bargaining unit being compatible with effective management. Paragraph 19 (3) requires that the CAC must take that factor into account. Moreover, the other factors specifically referred to in paragraph 19 (4) must be taken into account only insofar as they do not conflict with that need. This does not, however, mean that the duty is to determine the bargaining unit which is compatible with the most effective management. That is simply not what the provision says. There may be a number of possible bargaining units that would be consistent with effective management, but not necessarily as effective. Equally, the provisions do not require the CAC to give priority to management's view of the most effective management arrangements nor (which will usually but not necessarily be the same thing) to the prevailing management structures. No doubt these will be matters for the CAC to consider, but proposed recognition arrangements will frequently, at least to some extent, cut across the way matters have traditionally been determined, and not merely because they substitute collective bargaining for managerial prerogative. They will often set new patterns or levels of pay determination with formerly disparate groups being treated together, and formerly unified groups being dealt with separately.
63. Mr Bowers' argument would give a privileged status to the employer's views, which is not consistent with the language of paragraph 19 (4). It involves a major re-writing of the statute, and one which would largely frustrate the workings of the legislation, to require the CAC to adopt the employer's views provided they are cogent. I have no hesitation in rejecting this submission.

Failure to have regard to relevant considerations

64. The contention here is that the CAC ought to have taken into account the company's arguments on the risk of fragmentation. It is clear that they did consider in terms whether the proposed bargaining unit was itself a fragmented bargaining unit. However, Mr Bowers says there were no findings as to the risk of fragmentation in the rest of the company. In my view there was. The issue was clearly before the CAC since it was a central plank of the company's opposition to the union's proposal. The CAC said in paragraph 16 that it could not predict the effects on the company in the future, but it was satisfied that management would be able to exercise a considerable influence on events. In my judgment it is saying that it does not anticipate unacceptable fragmentation. That is supported by its observation in paragraph 14 that it did not believe that its recommendation would undermine the preferred mode of management of the company.
65. Accordingly, I consider that the CAC has considered this matter expressly, although even if they had not, in my judgment, it would be difficult for the claimant to say that the matter had not been given proper consideration. In the event, I reject this contention.

The decision was irrational

66. This argument rested heavily on the premise that the second and third arguments were correct. Since I have rejected both of them, the basis for this allegation falls away.

Delay in discretionary ruling

67. Ms Mountfield submits that the claimant failed to apply for judicial review promptly and that her client suffered serious detriment.
68. It is necessary briefly to recount the chronology. The CAC determination was made on 20 December and notified to the directors of Kwik-Fit shortly thereafter. I have a witness statement from Mr Houston, a group director of the company, in which he says that because of the Christmas and New Year holidays it was not possible to meet with other directors until 7 January. There were then discussions with senior management and with the solicitors. The solicitors were asked to obtain leading counsel's opinion on 10 January and that opinion was available on 14 January. The board then considered their position and decided on Friday 18 to take proceedings. The solicitors notified the CAC and the union on Monday 21, and the application was formally lodged on 24.
69. I do not accept that this timetable demonstrates a failure to act promptly. The duty is not to act with the utmost speed; it is to act with all sensible expedition and not to permit undue delay. Given the intervention of the holidays and the fact that a decision of this kind understandably required consideration by the most senior executives in the company, after taking advice from leading counsel, a month showed no lack of promptitude. The union were told immediately the decision to take proceedings had been made. I reject as wholly unrealistic Miss Mountfield's criticism that the union should have been told that taking proceedings were under active consideration. This would have been potentially damaging in industrial relations terms. It might have created hostility for no purpose. No doubt, too the company would have been criticised for creating unnecessary concerns had they so notified the union and then decided not to take action.
70. I should add that in any event I do not consider that the adverse consequences to the union would have justified withholding relief. There are certain administrative problems that have been created, but these have been caused not by the delay or even by any relief granted, but rather by the fact that litigation was taken at all. I am sympathetic to the union's concerns that the rapid turnover of staff at Kwik-Fit means that with every day that passes it is difficult for the union to maintain the momentum for union support. Even so, I do not think that the extent of such difficulties over a short period would justify withholding relief, particularly given the fact that even if there has been delay, it is extremely short and has not, of itself, caused hardship.

Conclusion

71. For the reasons set out I grant the claimant the relief it seeks. I will hear submissions about whether the matter should be remitted to the same or a different panel.

MR LEWIS: My Lord, can I address you on the issue of where the decision should go back to? I do not think there will be any issue between the parties on that. We all agree that the matter should be remitted. There is no suggestion on this side that it needs to be remitted to the same panel. Would you order that this go back to a differently constituted CAC?

MR JUSTICE ELIAS: Yes.

MR LEWIS: I am grateful. I want to raise the issue of costs. Does your Lordship have the costs schedule?

MR JUSTICE ELIAS: Probably the answer is no, but I was given one. (Handed)

MR LEWIS: The schedule is broken down in relation to those costs incurred prior to permission hearing and those costs which specifically relate to the events subsequent to that. The costs prior to permission include all the costs of preparing, considering the application, taking leading counsel's advice .....

MR JUSTICE ELIAS: One would not normally be entitled to all those costs.

MR LEWIS: Preparing the hearing, the statement of grounds and the application itself. In my submission those costs are appropriate. There was a need to consider the application quickly in order to comply with the need to act promptly. The grounds had to be drafted with some expedition and the case prepared by the time we got to a hearing to suffice for permission. I say those costs are appropriate. It leads to a higher grand total of costs up to permission.

MR JUSTICE ELIAS: Significantly higher as well.

MR LEWIS: Yes.

MR JUSTICE ELIAS: I do not say it by way of criticism but this looks a very high figure. I will hear Mr Linden, but I am not prepared to award anything like this. I would send costs to be taxed.

MR LINDEN: My Lord, we would invite you to make an assessment. I will endeavour to assist you in relation to that. We say that the costs sought by the claimant are grotesquely high. I accept that these matters are ultimately rough and ready as far as you are concerned. I will seek to make one or two short points as to how matters resulted. First, as a matter of principle I accept that, in principle, the defendant should pay the claimant's costs. They succeeded on the point that went to the heart of the case but failed on three extremely bad points. Even in respect of their success they did not win the argument but they got the result they sought. That is to be weighed in your Lordship's discretion.

Secondly, as a matter of principle, we do not accept that we should pay the VAT on costs. That is because, as a limited company, the claimant, as I understand it, will be able to reclaim VAT on the legal costs ordered in its favour or the costs it has to pay its solicitors.

Thirdly, in terms of principle, we make the point that the hourly rates charged by the solicitors in this case are higher than those for solicitors operating where they operate.

MR JUSTICE ELIAS: Where do they operate?

MR LINDEN: Central Manchester, as I understand it. I have the guideline costs (Handed). You can see under the heading Northern Circuit Manchester Central the hourly rates recommended. I am not asking you to re-calculate the schedule, but you can see immediately that the hourly rates are significantly higher than those recommended in the guidelines. There are other points I seek to make to illustrate the point that in this litigation the claimant has sought to travel in a Rolls Royce where, as I would submit, a lesser vehicle was appropriate.

MR JUSTICE ELIAS: A bicycle.

MR LINDEN: I am a cyclist, as you may know. There is no disadvantage in travelling by bicycle. It can often be more convenient. The starting point is to compare the costs contended for by the other party. We do not seek our costs but there is an indication of what we say would be a reasonable amount.

So far as the union is concerned, you will appreciate that it was involved in the hearing substantially and the full hearing and produced some evidence. In relation to that hearing we had the benefit of a skeleton and Miss Mountfield's submissions; it was £6,380. So far as the defendant is concerned, there was involvement at the initial hearing, including skeleton argument, and some overlap in terms of costs because there was a change of counsel; the figure was £8,671. Those figures are dwarfed by the sum of £23,380 sought by the claimants. I can try and indicate why that might be, but it is not a detailed analysis. If one takes the position in relation to the costs of the hearing of the 5th, earlier this week, (it starts at page 3) you can see the list of solicitors who have graced this case on behalf of the claimant. The total in terms of names comes to 8. The position is that in the course of this case 8 solicitors at the relevant firm dealt with this case which must have led to significant overlap in terms of costs. At page 4 one can see under the heading Attendance of Client that in the 4 days between the permission hearing and the full hearing there were 13 telephone calls and 9 letters sent by the solicitor and, in relation to counsel, 20 telephone calls, all charged for. Obviously, solicitors must seek assistance of counsel but 20 calls in 4 days in circumstances where, in effect, all the work had been done for the permission hearing, I submit, is excessive. But it is really an indication of what I say are Rolls Royce costs in what I say is an ordinary car case.

I draw attention to counsel's fees; I do this with some deference. At page 3 the fees in respect of the first hearing are just over £10,000. Again, if you combine those with the fees for the full hearing, or if you do not, they still dwarf the fees levied by counsel for the other two parties added together. I accept Mr Bowers is experienced counsel, as is Mr Lewis, and I accept that the claimants are entitled to the benefit of the services of experienced counsel.

MR JUSTICE ELIAS: But not at your expense.

MR LINDEN: Not at public expense. With experience comes speed. In this case Mr Bowers appeared for the company throughout and attended the panel hearing. He had the benefit of full knowledge of the evidence and made the relevant submissions. With respect, no doubt Mr Bowers' clerk is to be congratulated but the eyebrows do raise when one sees a figure that high for the full hearing.

Your Lordship has to adopt a rough and ready approach. I would say that you should take the view that the costs levied by the defendant in respect of these proceedings in the order of £8,500 are appropriate for these proceedings given that the defendant attended both the permission hearing and the full hearing and given that those costs are necessarily inflated by some overlap in terms of counsel. If my friend advances a very convincing case as to why the figure should be higher I would ask you to say £10,000 which, in my submission, is an appropriate and proportionate figure for this litigation. Unless I can be of further assistance, those are my points.

MR JUSTICE ELIAS: Do you want me to go ahead and make an assessment?

MR LEWIS: I do not have an objection to the matter going to detailed taxed assessment of the costs. I would urge your Lordship that the number of solicitors involved is not an indication of a Rolls Royce service. It is an indication of solicitors travelling between Manchester and London, others in the office sometimes are involved in back-up work without the need for the same detailed knowledge of the case. Therefore one does not have any degree of waste or overlap. The examples given of the number of hearings (page 4) lead to total costs of only about £240. Equally, the 13 telephone calls referred to at page 4 lead to total costs of only about £150. The effect of having that number of solicitors involved is not to increase the costs. It allowed solicitors charging less to be involved where they can be usefully used. It allowed the matter to be progressed as promptly as it needed to be progressed.

I would urge your Lordship not to accept the submission that the number of solicitors involved is an indication of a Rolls Royce approach. I would also urge your Lordship to accept that the time and expense involved is likely to be higher with the claimant having to prepare the case, consider it initially, make the application, and respond to the points raised by both parties because we needed to deal with the delay points raised by the union as well. That does inevitably lead to higher expenses being incurred by the defendants. I urge you not to accept those submissions. If you are minded - I think as you indicated when I initially made submissions - to say this must be far too high and to cross through it, I would urge you that that sort of approach is best conducted upon taxation, looking in detail .....

MR JUSTICE ELIAS: The problem with taxation is it adds more costs.

MR LEWIS: It may be that the parties can reach agreement in advance of taxation and that reduces costs. It is something .....

MR JUSTICE ELIAS: Is there any point in my rising for 5 minutes to see if you can reach agreement?

MR LEWIS: It may be if I can get instructions. I think it is worth trying, yes.

MR LINDEN: I have no objection to that.

MR JUSTICE ELIAS: Otherwise, I will make a determination.

(Short Adjournment)

MR LEWIS: Thank you for that opportunity. We have not been able to reach agreement.

MR JUSTICE ELIAS: I have looked at the application for costs. The figure looks very high for an application of this kind, notwithstanding the seriousness of the matters, which comes to somewhere in the region of £22,000, including VAT which apparently should not be claimed in any event. I consider that the hourly rate for solicitors has been marginally greater than that considered appropriate for solicitors in their region. The number of hours seems to be quite considerable in the circumstances. Two counsel have been employed and counsel's rates appear to be high. That is not in any sense a criticism of solicitor or counsel. The claimant is perfectly entitled to take what advice it needs and to go into it in the thoroughness it thinks appropriate.

I have to decide what costs should be properly borne by the defendant. In my judgment, taking an overall approach, it seems that the correct figure would be £11,500.

MR LINDEN: There are a couple of other matters. The first is the permission to appeal. Your Lordship's observation in the judgment, if I may say so, is correct that the construction point in this matter goes to the heart of the legislation. On that basis alone I seek permission.

MR LEWIS: I oppose permission. This is a matter on which your Lordship has given a balanced judgment. The point has been urged by both the CAC and the union. The appropriate course now is for the CAC to get on with making a detailed assessment. If the Court of Appeal are interested in a point of appeal may be that can be a matter to be determined by them, but otherwise I would urge your Lordship to allow the matter to proceed.

MR JUSTICE ELIAS: It may be balanced but it may not be right. I think it ought to go to the Court of Appeal and they ought to have an opportunity. It is a matter of some public importance.

MR LINDEN: First, can I ask you to order a transcript of the judgment to be produced as soon as possible. Second, can I ask for you to say the matter is fit for expedition. I appreciate that your Lordship cannot tie the hands of the Court of Appeal .....

MR JUSTICE ELIAS: I cannot.

MR LINDEN: ..... but at least make the observation.

MR JUSTICE ELIAS: This is affecting the way in which the CAC is handling its matters day by day. I am happy to say that it seems to me it is a matter that should be decided as soon as the Court of Appeal thinks appropriate. It would assist the CAC for it to be resolved as soon as possible.

MS MOUNTFIELD: I join Mr Linden in urging you to make a strong recommendation as you think appropriate. I was involved in a decision the week before last and Mr Justice Keene indicated that he would indicate his view on it. Clearly, his remarks .....

MR JUSTICE ELIAS: If they can deal with it quickly that is desirable. I am sure they would.

MS MOUNTFIELD: Can it be indicated to the CAC that it should not, in any event, stay a re-determination in the face of your Lordship's judgment pending that decision because, clearly, a delay of possibly several months at the Court of Appeal would leave these workers without recognition. With respect, the law is at present as your Lordship has now said it is. I appreciate that that may be a hearing where the Court of Appeal may again wish to consider it, but in the meantime there may be a group of workers with no recognition at all.

MR JUSTICE ELIAS: I do not think there is any problem about the stay, but the question is simply whether the CAC would prefer to go ahead in the light of the judgment or whether they may prefer to stay their hand. I have no application to stay their hand so I do not think there is any question of a stay.

MS MOUNTFIELD: If you thought it was preferable to indicate that it would not helpful, that would be helpful.

MR JUSTICE ELIAS: I am not sure that anyone - - if the CAC does not make an application there is no basis on which the claimant can, I would have thought. But they have not done so. I am not willing to tie the hands of any other judge who may hear such an application.

MR LINDEN: We have reached no view as to what we will do in the light of your Lordship's judgment, whether to pursue the appeal or to go back and carry on. We will let the parties know as soon as we have reached a view.

MR LEWIS: I have no point to take in relation to a stay. It seems to me that it is a matter for the CAC, in the first instance, to decide how to pursue the matter.

MR JUSTICE ELIAS: Thank you.