England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		6th April 2003

Friday, 6th June 2003

MR JUSTICE MOSES: Introduction

1. True enjoyment at supper in front of the television can only be achieved by the sight of the disappearing limbs of an insect within the mouth of a monitor. That that is so is due in no small measure to the high skills and professionalism of a body of wildlife cameramen and women. That they exercise their skills in a professional manner does not mean that they are professionals.
2. In this application, which proceeds as a substantive hearing as a matter of urgency, the BBC challenges the decision of a panel of the Central Arbitration Committee ("the CAC") dated 30th April 2003. The panel decided that certain cameramen and women who work for the Natural History Unit are workers within the meaning of section 296(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"). The CAC is the body responsible for overseeing the statutory recognition procedure set out in Schedule A1 to the 1992 Act.
3. The BBC contend that in so deciding the panel erred in law. It goes further and contends that the only true and reasonable conclusion was that that group was a group of professionals and thus it was not open to the CAC to accept the Broadcasting Entertainment Cinematograph and Theatre Union's ("BECTU") application for recognition. Further arguments were raised as to whether, even if this was a group of workers, it was a group of individuals who work, normally work or seek to work within the meaning of section 296(1) of the 1992 Act and as to whether the approach adopted by the CAC to the evidence, a group approach, was lawful.

Statutory framework

4. By Schedule A1 paragraph 1 of the 1992 Act, headed "Collective Bargaining Recognition", Part 1 "Recognition":

"A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule."

Section 296(1) provides, so far as material, as follows:

"(1) In this Act 'worker' means an individual who works, or normally works or seeks to work -

(a) under a contract of employment, or

(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his or,

(c) in employment under or for the purposes of a government department ... in so far as such employment does not fall within paragraph (a) or (b) above."

5. The relevant procedure under Schedule A1 was set out by Elias J in his decision in Kwik-fit GB Limited v Central Arbitration Committee and adopted by the Court of Appeal in the appendix to its decision [2002] ICR 1212. I adopt that analysis gratefully:

"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 ...

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) ...

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 ...

10. The third stage is the determination of the bargaining unit [the principal issue in that case]."

By paragraph 2(2) of Schedule A1:

"(2) References to the bargaining unit are to the group of workers concerned (or the groups taken together).

(3) References to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition."

Paragraph 3(3) provides:

"References to collective bargaining are to negotiations relating to pay, hours and holidays; but this has effect subject to subparagraph (4)."

6. It is important to observe at this stage two features. The purpose of this legislation was explained by Elias J at paragraph 6 as being "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". The second feature to be observed is that the definition of worker (section 296(1)) is not confined to provisions of Schedule A1 in relation to recognition. It also applies to provisions which go to the very heart of the 1992 Act because it is central to the definition of trade union at section 1. A trade union means an organisation which consists wholly or mainly of workers. Thus the definition is crucial in relation to identifying those groups upon whom rights are conferred and obligations imposed collectively under the 1992 Act, for example in relation to liability in tort under section 20, to the limitation on damages under section 22, as to accounting obligations in section 28, elections under section 46, political funding under section 71, in relation to the scope of ACAS advice (see section 218) and as to the definition of trade disputes under section 244.

The decision of the panel

7. In its decision at paragraph 6 the panel pointed out that "[it] is unable to proceed with the application of a number of the relevant tests until it is determined whether the individuals contained within the proposed bargaining unit are 'workers' for the purposes of the Act". At paragraph 7 the issue is identified as being whether "the individuals within the bargaining unit are 'workers' for the purposes of section 296(1)(b)".
8. There was reference to the standard documentation pursuant to which the BBC entered into agreements with the cameramen and camerawomen and as to a contacts list which contained contact details and, where appropriate, an agreed rate in respect of wildlife cameramen and women who had at some point in time been contracted by the Natural History Unit of the BBC. The list also identified what additional or special equipment was available from individuals for an additional hire fee. There was also a procedure set out for those individuals who wished to increase the rate they sought to charge.
9. The arguments of the union were set out particularly at paragraphs 11 and 12 of the decision. The union referred to the clauses according to which the BBC entered into contracts with the individuals. The union argued that professional meant something narrower than merely running a business and should not be regarded as the converse of amateur.
10. The submissions of the company were set out from paragraph 14. The company said that each worker should establish by evidence that they were workers and not professionals. The BBC produced a spreadsheet giving details of the engagements of 49 freelance cameramen and women between March 2001 and December 2002 who were covered in the contact list. At paragraph 16 the BBC set out those factors upon which they relied in demonstrating that the cameramen and women were professionals:

"(a) a high level of skill, with sub-specialisms. The absence of an academic test is not fatal to this.

(b) involvement in short-term engagements;

(c) Schedule D tax status and liability to VAT;

(d) the flexibility to operate variously as individuals, partnerships, trading names and companies;

(e) working for a range of organisations, at an arm's length relationship;

(f) the right to substitute;

(g) provision of equipment, which may vary according to their sub-specialism;

(h) the existence of a professional association;

(i) rates being subject to negotiation;

(j) a relatively high level of earnings;

(k) work with an artistic flavour, of a kind that distinguishes a painter and decorator, on the one hand, from an interior designer, on the other."

11. The central decision and reasoning of the panel is set out at paragraphs 21 and 22:

"21. The second issue for the Panel to determine is whether the relationship of the wildlife cameramen/women with the Company is that of professional and client. The Panel considers that it is the relationship between these individuals and the Company that is material, not the individuals' general status. It is therefore satisfied that it is able to decide this point on the basis of the evidence before it. It was common ground between the parties that there is no legal definition of a profession. The Panel notes that, in contrast to other legislation, the definition of a 'worker' in the Act does not exclude clients or customers of a 'business undertaking'. The reference to clients and customers of a business undertaking in that other legislation, in addition to the professional/client relationship, suggests that a professional cannot be equated with a person who operates a business undertaking. A professional cannot, therefore, be compared merely with an amateur. We are persuaded that, as an exception to the definition of a 'worker', the term professional should be narrowly construed. We do not seek to put forward a comprehensive definition of the term. However, we consider that some form of regulation of a professional's field of activity by a body covering those engaged or seeking to be engaged in that activity is required in order for any individual to be categorised as a 'professional'. This test is not met by the cameramen/women engaged by the Company. It was common ground between the parties that they may be members of the International Association of Wildlife Filmakers, which was described by the Union in its application as a 'professional association'. However, Mr Spence, the Union's Assistant General Secretary, the signatory to the application, informed the Panel that he had used this term in a colloquial sense and that membership of the association was not compulsory. The voluntary nature of membership was not disputed by the Company. We consider that the other arguments put forward by the Company for a professional/client relationship are more consistent with the relationship of the client or customer of a business undertaking than with a professional/client relationship. We note the Company's evidence that no technical standards or procedures are currently issued to Freelances pursuant to clause 10.2 of the Freelance Terms of Trade, relied upon in the Union's submission, and this clause has played no part in our decision.

22. The final issue for the Panel to determine is whether the individuals within the proposed bargaining unit work, or normally work or seek to work for the Company. The Union has defined its proposed bargaining unit by reference to the Company's 'Contacts List', described in paragraph 8 above. Ms Hamilton, a Production Executive at the Company's Natural History Unit, confirmed that the individuals detailed in the spreadsheet referred to in paragraph 14 above are the same as those on the Company's Contacts List. Mr Hellier stated that in his view everyone on the Contacts List would like to be offered work by the Company. In view of this evidence, the Panel concludes that individuals who are on the Contacts List, if they do not work or normally work under a contract whereby they undertake to do or perform personally work or services for the Company, can be regarded as seeking under such a contract for the purposes of section 296(1). Mr Hellier indicated that individuals who are not on the Contacts List may also be offered work. However the fact that there may be other individuals not within the proposed bargaining unit who may have the potential to fall within the definition of a 'worker' is not material to the issue that the Panel is required to decide."

Approach of the court to the decision of the panel

12. It is important to emphasise the restricted scope for intervention by this court. The CAC is a permanent and independent arbitration body. Originally its functions were limited to carrying out voluntary and unilateral arbitrations in the sphere of industrial relations. The Employment Relations Act 1999, which introduced the statutory recognition procedure under Schedule A1, significantly enlarged its role. Members of the CAC are appointed by the Secretary of State and are required to be "persons experienced in industrial relations" (see section 260(3)). The chairman of the CAC establishes a three member panel to deal with any application for recognition. Unlike employment tribunals, there is no requirement that the chairman of the panel or the other members be legally qualified. There is no equivalent to the detailed Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, in contrast to the employment tribunal system. There is no express power to order disclosure of documents or to require attendance of witnesses. The chairman has a discretion to sit in private but there is provision for cases where the panel is not unanimous. The panel determines its own procedure subject to those provisions (see section 263A(7)). Paragraph 171 of Schedule A1 is important. It provides:

"In exercising its functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workforce, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned."

13. It is clear, therefore, that the proceedings are intended to be informal, non-legalistic and conducive to good industrial relations rather than litigation. To that extent it is in marked contrast to the recognition procedure under the former Employment Protection Act 1975, in which applications became hopelessly bogged down with legal challenges. The process under Schedule A1 is designed to encourage a speedy momentum rather than delays. The intervals between each of the successive stages are specified and they are short. The CAC must decide whether to accept an application within ten working days from receipt (see paragraph 15(6)(a)). There is a discretion to extend time, but reasons must be given for such an extension. Paragraphs 18 and 19 provide a period of 20 working days during which the parties have an opportunity to reach agreement in relation to the appropriate bargaining unit, after which the CAC has but 10 working days to decide an appropriate bargaining unit should there not be agreement. It is inherent within the procedure that the parties should attempt to reach agreement and only as a last resort refer to the CAC for a decision. This is quite inconsistent with a legalistic approach.
14. These considerations reinforce the reluctance of any court to intervene and the rare occasions when it would be appropriate to do so. It is for the expert body, the panel of the CAC, to identify whether a group of individuals concerned are undertaking to work or normally working or seeking to work in the exercise of a profession, as a matter of fact, and in the context of the statutory scheme and its purpose.
15. If authority is required in support of that proposition it can readily be found at paragraph 23 in the judgment of Elias J in Kwik-fit, as endorsed by Buxton LJ at paragraph 2 of his decision in the Court of Appeal, in which he said:

"I would also venture to endorse in strong terms what was said by the judge in paragraph 23 of his judgment, that the CAC was intended by Parliament to be a decision making body in a specialist area that is not suitable for the intervention of the courts. Judicial review, such as is sought in the present case, is therefore only available if the CAC has either acted irrationally or made an error of law."

16. Further support for the proposition can be found in the speech of Lord Scarman in relation to ACAS in United Kingdom Association of Professional Engineers v Advisory, Conciliation and Arbitration Service [1981] AC 424, where at page 441G he said:

"The courts have no part to play other than to exercise their function of judicial review in the event of a challenge to the legality of any act or omission on the part of the bodies entrusted by statute with the duty of promoting the improvement of industrial relations."

At page 442E-F he continued:

"The courts will not tell a statutory body how it is to conduct its business or what decision, report or recommendation it is to make. They will invalidate the exercise of a statutory body's judgment or discretion only if satisfied that no reasonable person charged with the body's responsibilities under the statute could have exercised its power in the way that it did."

First issue - error of law

17. The criteria for identifying whether the group referred to in paragraph 1 of Schedule A1 of the 1992 Act is a group of workers is not specified in the Act. This led to an argument whether, as the BBC contended, the approach adopted by the panel was too narrow. The statute, contended the union, intended a narrow approach.
18. I found this a somewhat arid argument unless and until the parties explained what it is they meant by a narrow or broad approach. It is of assistance to be told to take a narrow approach without more. The correct approach is dictated by the terms of the definition of section 296 itself. Any group of individuals who work, normally work or seek to work under a contract, other than a contract of employment, whereby that group undertakes to do or perform personally any work or services for another would be a group of workers but for the requirement that the group does not or does not seek to do so under a contract in the exercise of a profession. If the group is not or is not seeking to exercise a profession it would come within the definition. Thus, the statute requires some feature or features which go beyond the mere personal performance of work or services to the extent that the work can be recognised as the exercise of a profession.
19. I am not sure any greater assistance can be gained by describing that as a narrow approach, but that there is a distinction between personal performance of work or services and such performance in the exercise of a profession is plain from the terms of the section itself. Further support for the necessity to make such a distinction can be derived from those statutory provisions where Parliament has chosen to make no such distinction. The definition in section 296(1) is relevant to those provisions dealing with collective rights and obligations. Where rights are conferred on individuals the definition of worker is less inclusive. It excludes both non-professionals exercising a business undertaking and those exercising a profession. In regulation 2(1) of the Working Times Regulations the definition of worker is as follows:

"'Worker' means an individual who has entered into or works under ... any other contract ... whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual [my emphasis]."

A similar definition is adopted in the Employment Rights Act 1996 at section 230(3).

20. In those circumstances, the contention that individuals within a group undertake to do or perform personally any work or services in the exercise of a profession must identify particular features which identify the work as the exercise of profession. It seems to me difficult and dangerous to go further. There was some debate as to the purpose of the section. Mr Bowers QC, on behalf of the BBC, whilst accepting that the section was designed to draw a distinction between professional and non-professional (an observation with which no-one could possibly disagree), sought to demonstrate that the greater the degree of dependence on the other party to the contract, the more likely it would be that the work or service provided was a worker. The paradigm of worker within section 296, he argued, is an employee who is dependent upon the employer for terms as to hours, pay and holidays and whom the statute seeks to protect under the umbrella of collective bargaining. The less dependent one party is upon other party to a contract in respect of pay, hours and holiday (the matters in respect of which there is an obligation to enter into negotiation under paragraph 3(3) of the Schedule), the less likely the person is to be a worker.
21. He relies in support of that proposition on a case concerning the Working Time Regulations, namely Byrne Bros (Formwork) Ltd v Baird and others [2002] ICR 667. At page 677, paragraph 17(4), Mr Underhill QC, the Chairman, said:

"It seems to us that the best guidance is to be found by considering the policy behind the inclusion of limb (b). That can only have been to extend the benefits protection to workers who are in the same need of that type of protection as employees stricto sensu - workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours ... to suffer unlawful deduction from their earnings or to be paid too little. The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-a-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm's-length and independent position to be treated as being able to look after themselves in the relevant respects."

22. I derive no assistance from this passage. It may be true that a professional is less in need of the protection afforded by a union exercising the right to enter into negotiations as to pay, hours and holiday, but so too may that be said of a non-professional working under a contract with a particular party for only a short part of the year and thus not particularly dependent on that particular party. Equally, a professional may become particularly dependent upon one client. It may well be, although in fact I had no evidence of it, that the BBC is a particularly important and significant body engaging the services of wildlife cameramen and women. I do not find the test of dependence of any assistance in the context of collective bargaining as opposed to the conferring of individual rights and protection.
23. The CAC is thus left by the statute to recognise those who undertake or seek to undertake work in the exercise of the profession and those who do not. The statute lays down no criteria but trusts the expertise of the CAC. The CAC must obviously look at all the circumstances and characteristics of the work, but it is for them to decide what weight to give to those characteristics, to decide which features they regard as significant and which features they regard as irrelevant.
24. I am conscious that these observations are of little assistance and may be regarded as trite. It is dangerous to derive support from observations of other judges in different statutory contexts, but what I have said is intended to differ in no respect from the words of the Court of Appeal in the different statutory context of the Finance Acts. In Currie v Commissioners of Inland Revenue [1921] 2 KB 332, Lord Sterndale, Master of the Rolls, in considering whether a tax payer was carrying on a profession and was thus outwith the charge to excess profits duty under the Finance (No 2) Act 1915, said:

"The first question that has been debated before us is this: 'Is the question whether a man is carrying on a profession or not a matter of law or a matter of fact? I do not know that it is possible to give a positive answer to that question; it must depend upon the circumstances with which the Court is dealing."

He went on:

"... between those two extremes there is a very large tract of country in which the matter becomes a question of degree; and where that is the case the question is undoubtedly, in my opinion, one of fact..."

25. In relation to the tax-payer in that case, who was an accountant, Lord Sterndale emphasised that the Special Commissioners were far better qualified to judge whether the work was that of a professional or not and declined to interfere with their decision (see page 337). He expressed concern as to whether the commissioners had attached too much weight to the fact that the accountant was not a chartered accountant, but declined to interfere, even though he appears to have been of the view that too much weight might have been attached to that consideration (see page 338). Scrutton LJ said at page 340:

"In my view it is impossible to lay down any strict legal definition of what is a profession, because persons carry on such infinite varieties of trades and businesses that it is a question of degree in nearly every case whether the form of business that a particular person carries on is, or is not, a profession. Accountancy is of every degree of skill or simplicity. I should certainly not assent to the proposition that as a matter of law every accountant carries on a profession or that every accountant does not. The fact that a person may have some knowledge of law does not, in my view, determine whether or not the particular business carried on by him is a profession ... Art is a matter of degree, and to determine whether an artist is a professional man again depends, in my view, on the degree of artistic work that he is doing. All these cases which involve questions of degree seem to me to be eminently questions of fact, which the Legislature has thought fit to entrust to the Commissioners, who have, at any rate, from their very varied experience, at least as much knowledge, if not considerably more, of the various modes of carrying on trade than any judge on the bench."

He then emphasised that the matter was a matter of degree for the Commissioners and concluded by commenting:

"... I myself am disposed to attach some importance in findings as to whether a profession is exercised or not to the fact that the particular man is a member of an organised professional body with a recognised standard of ability enforced before he can enter it and a recognised standard of conduct enforced whilst he is practising it. I do not for a moment say it settles the matter, but if I were deciding a question of profession I should attach some importance to that particular feature."

26. Similarly, in Carr v Inland Revenue Commissioners [1944] 2 All ER 463 the Court of Appeal considered the decision of the Commissioners that a fully qualified optician was carrying on a profession within the meaning of the 1939 Finance (No 2) Act. The observations of du Parcq LJ were founded upon the dicta of Lord Sterndale MR in the case I have already cited. Du Parcq LJ said:

"... before one can say that a man is carrying on a profession, one must see that he has some special skill or ability, or some special qualifications derived from training or experience. Even there one has to be very careful, because there are many people whose work demands great skill and ability and long experience and many qualifications who would not be said by anybody to be carrying on a profession."

At page 167 du Parcq LJ pointed out that the categories were not closed and as time has moved on so did the number and status of the professions.

27. These observations were made in a very different statutory context, but they do provide some guidance as to the sort of factors which a body such as the CAC might care to take into account when identifying one who is exercising a profession or not and an important warning to courts such as this not to interfere with the views of the body charged with such identification.
28. The error of law for which it is contended lay in the panel stating that before a group of workers may be said to be exercising a professional activity, that group must be subject to regulation by a body covering those engaged or seeking to be engaged in the activity in question (see paragraph 21). The panel went on to say: "This test is not met by the cameramen and women engaged."
29. I am satisfied that the panel did regard it as an essential requirement of profession activity that that activity be subject to regulation by some supervisory body. I am also satisfied that to impose such a requirement amounted to an error of law. It is of course essential that the decision of the panel is read as a whole. It must not be read as a statute; it must be delivered speedily and may be given by those who are not trained lawyers, though I hasten to say not in the instant case. There is no obligation to give reasons at all, but the BBC was entitled to know why its contention that the cameramen and women were exercising a profession was unsuccessful, at least in broad terms. I am satisfied that it was the failure of the group to satisfy the test the CAC imposed which led to its conclusion that the cameramen and women were not exercising a profession.
30. It was argued by Miss Moor, on behalf of the union, that there was a freestanding reason not dependent upon the test imposed as a requirement by the panel. She referred to the passage at paragraph 21 in which the panel said:

"We consider that the other arguments put forward by the Company for a professional/client relationship are more consistent with the relationship of the client or customer of a business undertaking than with a professional/client relationship."

31. The panel was entitled to find the features which it there described by reference back to the arguments of the BBC at paragraph 16 (which I have already quoted) as being as consistent with a business undertaking as with the exercise of a profession. It was certainly open to the panel to find that those factors were insufficient to establish that the group was exercising a profession. It is difficult to see quite how the panel can have described the features of (a), namely a high level of skill and sub-specialisms and (k) work with an artistic flavour, as being more consistent with the relationship of customer of a business undertaking than with a professional/client relationship, but at least, I emphasise, it was open to the panel to regard those features as not being sufficiently particular as to connote the exercise of a profession. But, I conclude that the essential basis for the decision of the panel was its decision that there was no regulatory body, a requirement which it considered essential. There are no qualifying words before the reference to the other arguments and nothing to indicate that it regarded those reasons as being freestanding. It is, in my view, impossible to say that the panel's view was not coloured by the inability of the group to satisfy the requirement the panel had imposed for a regulatory body.
32. That is not to say that the existence or absence of a regulatory body is not a relevant feature. Had such a body existed, the panel would have been entitled to conclude that it was a powerful feature pointing to the exercise of a profession. It would be a sufficient, although not a necessary, condition. Equally, the panel was entitled to regard the absence of such a feature as significant if there were no other features pointing towards the existence of a professional activity rather than the mere exercise of a business activity. There may be cases, and indeed the instant case may be an example, where all the features of the activity point either way. In those circumstances the absence of a regulatory body may be the significant feature which demonstrates that the activity is not that of a professional. But it is clear to me that that was not the approach of this panel. It went beyond that and imposed a test for which there is no warrant. It must surely be possible to envisage the exercise of a profession, and that of an interior designer was used as an example, in respect of which no regulatory body exists. The imposition of the requirement for the existence of a regulatory body was, in my view, an error of law which taints the panel's decision. Accordingly, the decision must be quashed.
33. I should emphasise that I am far from saying that the conclusion that the cameramen were workers within the meaning of section 296 was not open to the panel. It was a matter for them, having considered all those features which they regarded as relevant, but it was not open to them to impose the test they identified.

Second issue - "seeking to work"

34. In the light of my conclusion it is unnecessary to dwell upon the remaining issues, save insofar as they may be necessary for the further consideration of the CAC which must follow my decision. The BBC argue that it was not open to identify those on the contact list as falling within those who worked or normally work or seek to work. It contended that the contact list contains only those who in the past 21 months have worked under a generic contract with the BBC sometimes, as the spreadsheets demonstrated, for no more than one day. There was no evidence, it contended, that those on the contact list were seeking to undertake any work over and above that which had already been performed.
35. The short answer to that submission is that there was such evidence as accepted by the panel and recorded at paragraph 22, when the panel recorded: "Mr Hellier stated that in his view everyone on the Contacts List would like to be offered work by the Company". It was a matter for the panel whether that was sufficient to establish the test imposed in section 296(1) or not. It is clear they were satisfied that it did.
36. It was argued further on behalf of the CAC that even absent the evidence of Mr Hellier, it was open to the panel to conclude that, as a group, these were the sort of individuals who seek to work under a contract for another who is not a professional client. No particular contract need be in existence and no particular other party need be in mind. The definition is concerned with a group and not particular individuals. It is concerned with types or species.
37. It seems to me unwise to give any view in the light of the fact that there was evidence to satisfy the requirement, even on the BBC's argument. But it is open to the CAC to approach the question looking at the wording of paragraph 1 of Schedule A1. This refers to a group of workers. Such a group may exist even though there may be individuals within that group who are no longer seeking to work. Thus, it is open to the CAC to look at the group as a whole and no requirement to look at every member of the group.
38. I stress that the procedure is intended to be informal and speedy. It is up to the CAC to determine the nature and extent of the evidence it regards as sufficient to satisfy the requirements of paragraph 1 of Schedule A1 as defined by section 296. It is important that concentration on the definition should not lead anyone to lose sight of paragraph 1 of the Schedule.

Third issue - detailed evidence

39. Those observations lead me to the third issue, namely whether the panel was required to consider particular evidence relating to the circumstances of the individuals amongst the 49 on the contact list. Again, this is only relevant for future consideration.
40. Mr Bowers' submission on behalf of the BBC changed radically, and sensibly so. At paragraph 28 of the application for judicial review the BBC contended that the issue could not be approached on a global basis as the CAC did; the only appropriate way for the CAC to have resolved the matter was for evidence to be adduced in relation to each particular worker to demonstrate that he is a worker and for such evidence to be tested, with workers being subject to cross-examination. A similar submission was made in the written argument at paragraph 19.
41. This submission was subsequently modified before me. Mr Bowers QC submitted that the panel should at least have considered whether the circumstances varied within the group so as to distinguish those on the list who had only worked for a day or a few days from those who had worked more often. For the reasons I have already given, I do not see how that would assist. One may be exercising a profession though one has only worked in the past on one day, or merely a worker although one has only worked in the past for one day. The length of time one has worked will not assist as to status or whether there has been an exercise of professional activity since, as I have concluded, the test of dependency on a particular contractor is not of help.
42. The short time and informality of the proceedings makes this an impossible submission and the panel cannot be required to undertake the wholly impractical task originally suggested. Again, I emphasise, the focus of paragraph 1 of Schedule A1 is on a group and not on the particular individuals within the group. It is up to the panel to determine what evidence it needs and the extent to which it satisfies them (see again UKAPE v ACAS at page 422E). Further, the question of whether there exist those who should not form part of what the statute describes as a bargaining unit arises at the later stage, Elias J's third stage. If there is no agreement the CAC must determine the bargaining unit under paragraph 19. That powerfully demonstrates that, at the earlier stage of consideration of the request, it is the group which must be considered and not particular individual characteristics which may later fall for consideration in determining the appropriate bargaining unit.
43. The approach to the evidence adopted by this panel cannot be faulted, but for the reasons I have advanced the matter will have to be considered again by a different panel.
44. MR LEWIS: My Lord, I was going to address you on the issue as to whether it should go back to the same panel or a different panel.
45. MR JUSTICE MOSES: I have said it is a different panel but I will hear argument if someone says it should be the same.
46. MR LEWIS: It was not my submission, it is my submission it should be different.
47. MR LADDIE: My Lord, I appear on behalf of the defendant. We submit that it should be the same panel, principally for reasons of expedition. Your Lordship has already indicated the primary function of the CAC. We consider there is a danger of duplicated time and money being wasted should the matter be referred --
48. MR JUSTICE MOSES: I know. I have great sympathy with that, but, with the greatest and best will in the world, suppose they come back, as they may very well do, with exactly the same answer, they have to approach it as a fresh matter, and how will the BBC ever believe that they have not just sort of tarted it up to be consistent with -- I do not mean to be unkind, but we are all human. Or, on the other hand, if they come to a different decision it is because they do not want to appear to have been coloured by their earlier one. I know it is going to take up further time -- well, I know from watching the seals being tossed and killer whales, that this group has been around for some time. A few more weeks or months -- it is expensive for your people --
49. MR LADDIE: The only thing I would add is that if that argument, with respect, was adopted no cases would ever be remitted to the same tribunal.
50. MR JUSTICE MOSES: It depends on the grounds, it depends on why.
51. MISS MOOR: My Lord, I adopt the submissions of my learned friend. I would say that speed is of particular importance in the statutory context given the procedure you identified.
52. MR JUSTICE MOSES: I know, but I mean how long has this group being going on without BECTU?
53. MISS MOOR: My Lord, the fact the group have been in existence for some time is, I would say, not the relevant factor. Speed becomes important once the group makes an application for bargaining. Then matters being crystallised.
54. MR JUSTICE MOSES: Why is it going to so difficult to find three other people?
55. MISS MOOR: I would not say that was difficult, but a further hearing would be required which would not be required if you were required to remit the matter to the same panel, it having been seized of all the information before it. There is no suggestion that the panel was somehow prejudiced or --
56. MR JUSTICE MOSES: No, no, I am talking about human characteristics.
57. MISS MOOR: You hear the submissions, my Lord.
58. MR JUSTICE MOSES: Yes, thank you very much. I shall order it be a different panel.
59. MR LEWIS: I am grateful, my Lord. My Lord, can I hand up a statement of costs.
60. MR JUSTICE MOSES: You have not asked for them yet. Ask for the application to be allowed firstly and then you ask for your costs. The application is allowed. I shall give permission as a matter of formality, although there was sort of consent, and I shall allow the application. Right. You ask for costs first of all. Does anybody have anything to say about the costs?
61. MR LADDIE: I understand my learned friend is applying for costs from the defendant. My Lord, our observations are as follows. The defendant is a judicial or quasi-judicial body and in the normal run of affairs judicial bodies or quasi-judicial bodies do not tend to appear in the Administrative Court to defend their own decisions. The reason why --
62. MR JUSTICE MOSES: Those submissions were successful.
63. MR LADDIE: Indeed, propositions 2 and 3. In those circumstances, in my submission, it would be inappropriate to award the successful claimant its costs, but it would be appropriate to award the defendant its costs of attending.
64. MR JUSTICE MOSES: Against whom?
65. MR LADDIE: Against the BBC.
66. MR JUSTICE MOSES: Thank you very much. I am going to say no order as to costs.
67. MR LEWIS: I am grateful, my Lord.
68. MR JUSTICE MOSES: You lost the two points which the CAC were -- you won another point. You have not asked for costs against the interested party.
69. MR LEWIS: That was my next submission. My Lord, I can see the point being made --
70. MR JUSTICE MOSES: I was proposing to give the BBC half its costs. It lost two of its points and won one of them.
71. MR LEWIS: I would say the priority was for the matter to be dealt with in the round, but I would be content with that order.
72. MR JUSTICE MOSES: Let us hear what Miss Moor says.
73. MISS MOOR: My Lord, we object in principle to an order being made against us. Of course we are in the middle of a challenge against the decision of the CAC.
74. MR JUSTICE MOSES: But it was your argument that seems to have tilted the panel into making this error.
75. MISS MOOR: It was not, with respect. We did not suggest any such test towards the panel and ought not to be required to pay for the hearing which puts it right. We suggested a number of factors of course but not a minimum test for regulation by a body, which was why the matter --
76. MR JUSTICE MOSES: You could have saved time by saying, "we think they got it wrong, they better do it again".
77. MISS MOOR: Well, not very much given that a great deal of time was spent in relation to the second and third matters, which were not of --
78. MR JUSTICE MOSES: That is why I was not going to give all the costs against you.
79. MISS MOOR: If you are against me on the matter of principle, I have a number of points to make about the assessment itself.
80. MR JUSTICE MOSES: Let us wait and see. I shall give the BBC half its costs. It seems to me that they lost two out of the three, they won an important one, and in those circumstances they should have half their costs against the interested party.
81. MR LEWIS: I am grateful. Can I hand this up.
82. MR JUSTICE MOSES: I think I have it. Is this the one that ends up with £16,000?
83. MR LEWIS: It is. Perhaps it just needs an explanation. At the bottom of the list you see the heading "counsel's disbursements" and a figure is given there. I ought to make clear that that relates to the costs of drafting in this matter, so matters such as statement of grounds.
84. MR JUSTICE MOSES: It says solicitor's disbursements, £4,200.
85. MR LEWIS: It should in any event relate to counsel's disbursements, my Lord.
86. MR JUSTICE MOSES: With some more fees on top. I do not know what a counsel's disbursement is.
87. MR LEWIS: That is what I was endeavouring to explain. What it is intended to relate to, but unfortunately it is not made clear, are the fees of work done on preparing the application.
88. MR JUSTICE MOSES: That was you, was it?
89. MR LEWIS: Yes, my Lord.
90. MR JUSTICE MOSES: You get £7,000-odd?
91. MR LEWIS: Well, it is a combination of myself and Mr Bowers, my Lord. No, I do not get £7,000 from this.
92. MR JUSTICE MOSES: You get a cut. I have your figures.
93. MISS MOOR: We have a number of points of principle to make on the amounts, my Lord.
94. MR JUSTICE MOSES: Did you submit your own summary of costs?
95. MISS MOOR: We have. Ours came to a total of £4,700-odd and you will see that the defendant's costs come to £6,000, taken together far less than the sum of the claimant's costs. We make firstly the point that two counsel were not required for the case. You will see from the papers that Mr Bowers appeared below. Much of the work done in relation to the grounds on this application was work already done. Much of his submissions below were repeated there. Whilst it is always a pleasure to see two counsel, it is not for us to be required to pay. We also contend that the amount of counsel's fees is high, and whilst plainly the BBC is entitled to choose and agree for expensive counsel, it is not for the union to pay in respect of a one day case where the fees of counsel on the claimant's side are a great deal higher than in total the defendant's and the interested party's. You see, for example, counsel's fees on the other side, and I suggest that a significant --
96. MR JUSTICE MOSES: I do not have the other side's assessments.
97. MISS MOOR: They were handed up, my Lord. If you have the defendant's schedule there you will see that Mr Linden's fees are recorded as the total of £4,000.
98. MR JUSTICE MOSES: What were yours?
99. MISS MOOR: Mine were £1,900, my Lord.
100. MR JUSTICE MOSES: Very cheap.
101. MISS MOOR: I would say reasonable perhaps, my Lord. The two points to take are no necessity to have two counsel and counsel's fees.
102. MR LEWIS: My Lord, in terms of having two counsel, could I make this point. In matters such as this expedition is extremely important. It was crucial that this matter be brought on very quickly having made a decision to come and apply for judicial review and therefore to have two sets of counsel, being able to get the matter before the court quickly, was essential, and indeed even with the short time which elapsed, a matter of three weeks, and part of which was taken making the initial decision, complaints were being made as to the time taken, it was going to be relied on at one point as a reason for objecting and that was not in the end pursued. Having made a decision which required anxious consideration we then needed to move extremely quickly. Having junior counsel proceed with the bulk of the drafting enabled that to happen more quickly than otherwise --
103. MR JUSTICE MOSES: It is very difficult, but I do think, one looks at it all, the total cost of counsel both appearing and drafting was some £12,000, was it not?
104. MR LEWIS: Yes, my Lord.
105. MR JUSTICE MOSES: It seems quite a lot. It is obviously more than the other sides because you have to set the whole thing up, but you did have the benefit of a leader who had been in it and therefore pretty much knew what was what so far as the structure was concerned. The main point was absolutely standard judicial review. You looked at a particular error of law and identified one sentence that scotched the case. I know it is easy to be wise after the event, but it is a very discrete point. They just went a bit too far. I am proposing to knock £6,000 off and you and Mr Bowers can then quarrel about it. Do you want to say anything more?
106. MR LEWIS: No, my Lord.
107. MR JUSTICE MOSES: It is very difficult, but I do think if one looks at counsel's fees as a whole, particularly having regard to the fact Mr Bowers had been in it before, acknowledging that it is always more expensive, as it were, to run the case than to respond to it, I still think it is too much. I am not going to say anything about whether it should be one or two counsel, it seems unnecessary. All I am going to say is I look at the total and say that a long low whistle emits from my lips judicially, which means "too much", so I shall knock that £12,000-odd down to £6,000-odd. So I shall knock £6,000 off the grand total making a total of £10,000-odd.
108. MISS MOOR: I omitted to mention VAT. We say that ought not be included given the BBC, as I understand it, would be able to reclaim that in any event.
109. MR JUSTICE MOSES: Counsel cannot. It is counsel's VAT, it is VAT on counsel's fees and the BBC has to pay counsel's VAT.
110. MISS MOOR: But then reclaim the VAT proportion of it, that is how I understand that.
111. MR JUSTICE MOSES: No, I do not understand the argument.
112. MISS MOOR: Very well.
113. MR JUSTICE MOSES: You will have to show me the VAT provisions and you will be paying for the costs of arguing that as well.