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 WC2A 2LL
		29 July 2013

1. MR JUSTICE LEWIS: This is a renewed application for permission to bring a claim for judicial review of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Order was laid in Draft before each House of Parliament and has been approved by each House. The Order was made yesterday by the Lord Chancellor. It came into force today. If permission is granted, the claimant also applies for an interim or temporary order preventing the Fees Order from being implemented pending the outcome of the claim for judicial review.
2. The application has been brought on at great speed but nonetheless it has been very well presented by both sides. I am grateful both to Miss Monaghan QC and Miss Chan for taking me through the material today, much of which is complex.
3. By the Fees Order, fees are to be imposed in respect of claims seeking to enforce rights in Employment Tribunals. Essentially, there will be two groups of claims. In relation to one group of claims, a fee called an Issue Fee of £160 will need to be paid in order to have the case issued. A further fee called a Hearing Fee of £230 will need to be paid if the matter is going to a hearing in the Employment Tribunal. These are referred to as Type A claims, and the claims to which these fees apply are set out in Table 2 of Schedule 2 to the Fees Order. In relation to other claims, including those dealing with claims for unfair dismissal or certified Sex Discrimination claims, there will be an Issue Fee of £250 and a Hearing Fee of £950 if the case goes to a hearing at the Employment Tribunal. If there are appeals to the Employment Appeal Tribunal, there are further fees which have to be paid.
4. There is a detailed scheme set out in Schedule 3 of the Fees Order providing for remission or waiver of the fee for certain groups. First, persons on certain benefits such as income support or working tax credit or certain other benefits will not have to pay any fees at all. Secondly, other persons may also be eligible for remission of the fees depending on whether or not they have children, the number of children they have, whether they are single or living as a couple and the level of income that they have. Thirdly, there is provision for partial remission of fees for other groups of persons.
5. The calculations are complex but essentially one takes the disposable monthly income of the party involved - that is defined and excludes certain things such as living expenses and child care costs - and, depending on the amount of the disposable monthly income that the party has, one calculates how much of the Issue Fee or the Hearing Fee the person has to pay.
6. I deal first with the application for permission to bring the claim for judicial review. Judicial review is a two-stage process. First, the claimant must obtain permission to bring a claim for judicial review. Secondly, if permission is granted, there is then a full hearing with all the parties represented and with all the relevant evidence and all the points of law are fully argued out.
7. Today, the claim is at the first stage and is only seeking permission to bring the claim. The claimant must show that there is an arguable case, that is there are grounds of challenge which are properly arguable and merit full consideration at a hearing.
8. The claimant wants to argue that the introduction of the fees is unlawful for four reasons, the first two reasons relating to European Union law. That law permits domestic law to determine procedural rules governing enforcement of rights derived from European law so long as those rules, first, do not make it excessively difficult or virtually impossible to enforce the rights and, secondly, that the domestic rules are no less favourable than the rules in place for enforcing rights derived from domestic law, not European Union law.
9. The claimant wishes to argue that the new rules do make it excessively difficult and do amount to less favourable treatment.
10. In relation to the third ground, the claimant wants to argue that the defendant has not fully assessed, on the basis of all the relevant evidence, the potential impact of the changes introduced by the rules. Finally, the claimant wishes to argue that the changes put certain groups at a particular disadvantage and wants to argue that those changes are not legally justified.
11. I am satisfied that the four grounds of challenge are arguable so that permission to bring the claim should be granted.
12. I turn next to the question of interim or temporary relief. I have read the witness statements of Mr Patrick and Miss Johnstone for the claimant, and also the witness statement of Mr Latham for the defendant, and I have considered very carefully all the written and oral arguments that the parties have made. For the reasons that I shall give, I am satisfied that this is not a case where any interim order would be appropriate.
13. There is a three-stage test for determining whether or not to grant an interim order. First, the claimant must establish that there is a serious issue to be tried. There are arguable points of law here, and I am satisfied therefore that this first part of the test is satisfied.
14. Secondly, the court needs to consider whether damages would be an adequate remedy for one of the parties instead of the grant of an interim order. In reality, in public law cases the availability of damages is unlikely to assist in answering the question of whether or not an interim order should be granted. The issues in judicial review cases tend to focus on the legality of a particular act as a matter of public law rather than the availability of damages. I am satisfied that the question of whether to grant an interim order in this case cannot be determined by consideration of the availability of damages.
15. The claimant says it is concerned about persons who might be deterred from bringing a claim in the Employment Tribunal and might lose their chance of enforcing their rights. There is no realistic prospect that the group would be able successfully to bring a claim for damages against a defendant even if ultimately it was found that there was some flaw in the order. As for the defendant, if it is prevented from implementing the Fees Order it will lose a considerable amount of money (estimated to be £800,000 a month). For reasons to which I will come, I am satisfied that it will not be able to recoup a large part of that amount of money and cannot realistically recover the money from the claimant union. In my judgment, the second stage of the test - the adequacy of damages stage - does not assist me in deciding whether or not to make an interim order in the present case.
16. I turn therefore to the third stage which is whether the balance of convenience favours making the interim order or refusing it. In considering the balance of convenience, it is important to bear in mind the wider public interest as well as the interests of the parties to this claim. I remind myself of the observation in R v Secretary of State for Transport ex p Factortame Ltd No 2 [1991] 1 AC 603, 673B where Lord Goff of Chieveley said:

"Turning then to the balance of convenience, it is necessary in cases in which a party is a public authority performing duties to the public that one must look at the balance of convenience more widely and take into account the interests of the public in general to whom those duties are owed."

17. I consider that the balance of convenience points very clearly against refusing any interim order in the present case. I have considered all the points made in the skeleton arguments and the acknowledgement of service. Given the time constraints, I simply set out the factors which in my judgment are the most significant factors but I have considered all the points that have been raised.
18. First, what the claimant is seeking to do here is to prevent the defendant from implementing the Order that had been made by the Lord Chancellor and approved in Draft by each House of Parliament. The claim is intended to prevent the defendant charging the fees that have been authorised by that Statutory Instrument.
19. I remind myself again of the decision in ex p Factortame No 2. I remind myself of two comments of Lord Goff in particular. He said:

"In this context, particular stress should be placed upon the importance of upholding the law of the land in the public interest bearing in mind the need for stability in our society and the duty placed upon certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of convenience. So if a public authority seeks to enforce what is on its face the law of the land and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law and so to justify in that case the refusal of an interim injunction in favour of the authority or to render it just or convenient to restrain the authority for the time being from enforcing the law."

Later on, Lord Goff said:

"The court should not restrain the public authority by interim injunction from enforcing the apparently authentic law unless it is satisfied having regard to all the circumstances that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken."

20. In my judgment, the position here is similar to or analogous to the position in ex p Factortame No 2. I would be reluctant to grant an interim injunction preventing the enforcement of the Order unless I was satisfied that the challenge was so firmly based as to justify such a course of action. There are differences between this case and Factortame. Factortame dealt with primary legislation (that is an Act of Parliament) and here we are dealing with subordinate legislation. But, in essence, this is a challenge seeking to prevent the defendant from enforcing what appears on its face to be an apparently authentic part of the law of the land. Furthermore, the intention is to prevent the defendant from enforcing its policy of charging fees. The underlying policy is explained in the Equality Impact Assessment in these terms:

"The fundamental policy aim for the introduction of fees is to transfer a proportion of the cost of running the Employment Tribunal and Employment Appeal Tribunal from taxpayers to users. The policy objective is to require users to pay fees where they can afford to do so in order to have their workplace dispute resolved through the Employment Tribunal and the Employment Appeal Tribunal process."

The document also states:

"The intended effects of introducing fees are to:

Ensure that all users who can afford a fee or make a contribution do so, whether they are bringing the claim as an individual or as part of a multiple claim; and

Improve the effectiveness and efficiency of the current system by encouraging employers and employees to resolve workplace disputes as early as possible."

21. The evidence of Mr Latham is that the fees to be recovered will be in the region of £800,000 a month.
22. In my judgment, it would not be appropriate to prevent the defendant from implementing the new fee regime unless the challenge to the lawfulness of the Order was so firmly based that such a course of action was justified. The judgment here is not so firmly based as to justify suspending the new fee regime. I recognise that the points made by the claimant are arguable and I recognise that there should be a full hearing. It would not be appropriate for me to comment on the detail of that challenge in advance of such a hearing.
23. However this is also an application for interim relief. Having read all the material and having listened to counsel on both sides, I consider that the claimant will face considerable difficulties in establishing any of its grounds of challenge [to] the lawfulness of the Order. Consequently, whilst I recognise that the claim is arguable, on the material before me at present, I consider that the grounds of challenge are not sufficiently strong to justify an interim order. Those reasons alone, in my judgment, justify refusing the claim for interim relief.
24. However I have carefully considered the impact of the Fees Order on those whom the claimant represents. I bear in mind the following facts. The new rules provide that those on certain welfare benefits will not pay any fees. They also provide that people, depending on their precise circumstances and their income, may also not have to pay any fee. The policy therefore recognises the most economically vulnerable in society, and interim relief is not necessary to protect those groups. They are already protected by the fee remission arrangement. Furthermore if people pay the fees and if the Order were ultimately found to be unlawful, the fees - as Miss Chan for the Lord Chancellor accepts - would have to be repaid. Those people are therefore protected and interim relief is not necessary to protect their position.
25. In reality, the group in issue are those who the claimant says will or may be deterred from bringing a claim. I have considered the material very carefully. The position seems to me that the people who have a certain degree of disposable income as defined by the Fees Order will have to make a contribution; in some instances pay the whole of the Issue Fee and ultimately the Hearing Fee. I understand that that will for them be a significant figure and they may well have to think extremely carefully as to whether they wish to commit that part of their available income to bringing a tribunal case. However I am satisfied that the arrangements are such that they do actually have the resources available to bring a claim, and the fee remission arrangements and the arrangements governing partial remission to those with certain amounts of disposable monthly income are intended to ensure that it is those who can afford to make a claim [who] are required to do so. So, in my judgment, even the interests of the group most strongly affected do not justify the grant of interim relief.
26. In my judgment, permission should be granted to apply for judicial review, interim relief should be refused.
27. The case will be expedited. I direct that it be heard with a two-day time estimate in October 2013. I am prepared to fix a timetable now.
28. MISS MONAGHAN: I am grateful.
29. MR JUSTICE LEWIS: Shall we sort out the timetable? Time estimate, I said two days.
30. MISS MONAGHAN: Two days.
31. MISS CHAN: Yes.
32. MR JUSTICE LEWIS: Do we need detailed grounds, or can I dispense with that?
33. MISS MONAGHAN: Detailed grounds, no.
34. MISS CHAN: I do not think so. I would have thought that both parties would do skeleton arguments.
35. MISS MONAGHAN: The summary grounds are very detailed.
36. MR JUSTICE LEWIS: I will dispense with service of detailed grounds. Are you able to do your evidence by 6 September, Miss Chan?
37. MISS CHAN: Yes. Well - - - - -
38. MR JUSTICE LEWIS: You normally have thirty-five days but there is not really that much time.
39. MISS CHAN: I wondered whether also we should not respond to the claimant's evidence. It is for the claimant to put its case.
40. MR JUSTICE LEWIS: They have done that.
41. MISS MONAGHAN: We may want to adduce further evidence on the deterrent point.
42. MR JUSTICE LEWIS: If you want more time we will come to that in a moment. So far, what we have is four grounds; you have all your evidence in unless you get permission for some more. We are dealing with the Secretary of State responding to that evidence. And you respond to that evidence - 6 September.
43. MISS CHAN: In the light of the short timescale, we do not have much option.
44. MR JUSTICE LEWIS: Not really but I thought I would ask. The defendant to put in its evidence by 4 pm on 6 September. Evidence in reply is one thing, but if you want new evidence - you have expedition. There is a limit, Miss Monaghan.
45. MISS MONAGHAN: There is. The advantage of expedition is we get this heard quickly but the disadvantage so far is that we have had to put our evidence together very quickly. It is one issue which is the deterrence point. As my Lord has picked up, on a clean analysis of the remission provisions, one could be left with the impression that somebody is left with sufficient money, as Miss Chan put it, to choose to go down the path [to] go on holiday or go to a restaurant. The reality is for many people - perhaps most - particularly at times of austerity, there will be other liabilities that are not catered for in the rules such as debt. We want to adduce some further evidence, not a huge amount, but giving some about the distribution of debt for example and the reality of what people spend this notional sum of money on because for an average earner £2,000 a month is not a lot when one takes account of things like council tax which is increasing, when one takes account of the ordinary distributions, including debts that one will incur (credit cards and so on) for Christmas and the like.
46. MR JUSTICE LEWIS: You can have until 4 pm on 9 August to put in evidence dealing solely with the question of deterrence.
47. MISS MONAGHAN: I am grateful.
48. MR JUSTICE LEWIS: If we put that in, Miss Chan, you should still be able to deal with that evidence by 6 September because you can start working on all your other evidence. You have to bear in mind to pick up the deterrence evidence as well. Matters to be expedited, to be heard in the month October 2013, with a time estimate of two days. I do not know the actual date yet, but a trial bundle lodged two weeks before the hearing should be enough. The claimant to lodge skeleton arguments fourteen calendar days before the hearing; the defendant to lodge skeleton arguments seven calendar days before the hearing; agreed bundle of authorities to be lodged by the claimant three days before the hearing. I will run through all this again in a minute.
49. Miss Monaghan and Miss Chan, is there anything on any of those provisional timetable indications just to get a structure.
50. MISS MONAGHAN: No. That is certainly achievable for us.
51. MISS CHAN: Yes.
52. MR JUSTICE LEWIS: The order will be - in fact Miss Monaghan and Miss Chan can deal with the associate to check that it is all covered - permission to apply for judicial review is granted; the application for interim relief is refused; I dispense with the service of detailed grounds; the defendant to put in their evidence by 4 pm on 6 September; the claimant to have until 4 pm on 9 August to put in evidence of potential deterrence; matter to be expedited to be heard in October 2013 with a two-day time estimate; trial bundle to be lodged two weeks before the hearing; the claimant to lodge a skeleton argument fourteen calendar days before the hearing; defendant to lodge skeleton argument seven calendar days before the hearing; and the claimant to lodge agreed bundles of authorities three days before the hearing. The one thing that is missing, Miss Monaghan, is that you do not have at the moment an opportunity to revise the reply to the defendant's evidence.
53. MISS MONAGHAN: I just saw that.
54. MR JUSTICE LEWIS: If you want to?
55. MISS MONAGHAN: We would like to have the opportunity. It may not be necessary.
56. MR JUSTICE LEWIS: It will have to be 13 September. The claimant to put in evidence in reply by 4 pm, 13 September. You have two dates to work to; you have your deterrence evidence and you have your reply evidence.
57. Miss Chan, you have one date to work to. You have to accommodate their working. Will the two of you - or Miss Chan and Mr Purchase - sort out the order and just double-check everything with the associate?
58. MISS MONAGHAN: Certainly.