QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
- and –
MR JUSTICE FOSKETT
| THE QUEEN
ON THE APPLICATION OF UNISON (NO. 2)
|- and -
|THE LORD CHANCELLOR
(Transcript of the Handed Down Judgment of
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Ms Susan Chan (instructed by The Treasury Solicitor) for the Defendant
Mr Michael Ford QC and Mr Spencer Keen for the Intervener
Hearing dates: 21, 22 October 2014
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Lord Justice Elias :
"This brings us to a fundamental difficulty with the whole of this case. Brought as it was in the belief that the lawfulness of the regime had to be challenged as a matter of urgency, and in any event within three months, the Court has been faced with judging the regime without sufficient evidence, and based only on the predictions of the rival parties throughout and after the hearing. Parliament decided, by affirmative resolution, to introduce the regime, authorised by statute, and debated and positively affirmed by both Houses of Parliament. Quite apart from the continuing obligation to fulfil the duties identified in the Equality Act, the Lord Chancellor has himself undertaken to keep the issue of the impact of this regime under review. If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the Lord Chancellor would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late. It seems to us more satisfactory to wait and see and hold the Lord Chancellor to account should his optimism as to the fairness of this regime prove unfounded. We believe both Unison and the Commission will be, and certainly should be, astute to ensure that accurate figures and evidence are obtained as to the effect of this regime.
No doubt the Lord Chancellor will also be doing the same, if he is successfully to resist a future challenge. In the meantime, we think that the fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime. We would underline the obvious: there is no rule that forbids the introduction of a fee regime. The nature of that regime is closely dependent upon economic and social considerations and policy. The formation of such policies is itself dependent upon an accurate assessment of income and expenditure and the means of those who wish to use the Tribunal system, and in the light of the need to encourage challenges to discrimination in pursuit of the important goal of equality. This court did not find itself in any position accurately to collate the information, still less the evidence, in order to achieve a just resolution. The application is dismissed."
The remission scheme
The principle of effectiveness
"The procedural requirements for domestic actions must not make it virtually impossible or excessively difficult to exercise rights conferred by [EU] law":
see Levez v TH Jennings ECJ  ICR 521 para 22, citing a whole raft of earlier authorities.
"The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the 'universally recognised' fundamental principles of law."
The claimant has not, however, sought to rely directly on these principles.
"if – which is for the referring court to determine- it would result in procedural disadvantages for those individuals in terms, inter alia, of cost, duration and the rules of representation, such as to render excessively difficult the exercise of rights deriving from the Directive."(para. 51)
"it must be held that the Spanish legislation at issue in the main proceedings does not appear to comply with the principle of effectiveness, insofar as, in proceedings brought by consumers in cases where the goods delivered are not in conformity with the contract of sale, it makes the enforcement of the protection which Directive 1999/44 seeks to provide to those consumers excessively difficult, if not impossible."
"….. it should be borne in mind that the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in arts 6 and 13 of the ECHR and which has also been reaffirmed by art.47 of the Charter of Fundamental Rights of the European Union (see Mono Car Styling  3 C.M.L.R. 47 at  and the case law cited).
62 In that regard, it is common ground in the cases before the referring court that, by making the admissibility of legal proceedings concerning electronic communications services conditional upon the implementation of a mandatory attempt at settlement, the national legislation introduces an additional step for access to the courts. That condition might prejudice implementation of the principle of effective judicial protection.
63 Nevertheless, it is settled case law that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed …"
"The Court does not regard this possibility, of itself, as conclusive of the matter. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, mutatis mutandis, the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 31, paras. 3 in fine and 4; the above-mentioned Golder judgment, p. 18, para. 35 in fine; the Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, pp. 17-18; para. 42; and the Marckx judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see, mutatis mutandis, the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25). It must therefore be ascertained whether Mrs. Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily."
The court held that she would not in that case be able to present her case properly because of the formal nature of the proceedings, the complexity of the issues, the emotional strain, and the need to cross examine witnesses including experts. Accordingly, Article 6 was infringed.
"61. The "right to a court" is not absolute. It may be subject to limitations permitted by implication because the right of access by its very nature calls for regulation by the State. Guaranteeing to litigants an effective right of access to courts for the determination of their "civil rights and obligations", Article 6 (1) leaves to the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the ultimate decision as to the observance of the Convention's requirements rests with the Court.
62. In particular, Article 6 (1) does not compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees in Article 6, regard being had to the fact that the manner of application of that provision to such courts depends on the special features of the proceedings involved and that account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see, for instance, Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2955, § 33, and Tolstoy-Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 61 et seq.; and Kreuz (no.1), cited above).
63. The Court has accepted that in some cases, especially where the limitations in question related to the conditions of admissibility of an appeal, or where the interests of justice required that the applicant, in connection with his appeal, provide security for costs to be incurred by the other party to the proceedings, various limitations, including financial ones, may be placed on his or her access to a "court" or "tribunal". However, such limitations must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (ibid.)
64. The requirement to pay fees to civil courts in connection with claims, or appeals, they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 (1) of the Convention. However, the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the phase of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed his right of access and had "a ... hearing by [a] tribunal" …."
" …. restrictions which are of a purely financial nature and which, as in the present case, are completely unrelated to the merits of the appeal or its prospects of success, should be subject to a particularly rigorous scrutiny from the point of view of the interests of justice."
"66. The Court notes that, indeed, the courts at several instances heard Mr Podbielski's case and that, eventually, the fee for lodging his company's appeal of 29 November 1996 was significantly reduced (see paragraphs 28 and 33 above). Yet, in contrast to the Tolstoy-Miloslavsky case, the money that the applicant was obliged to secure did not serve the interests of protecting the other party against irrecoverable legal costs. Nor did it constitute a financial barrier protecting the system of justice against an unmeritorious appeal by the applicant. Indeed, the principal aim seems to have been the State's interest in deriving income from court fees in civil cases (see paragraphs 30, 35 and 54 above).
67. Moreover, it appears that the sum in question was still far too high for the company which, from at least May 1995 up to the material time (October 1997), had been on the verge of winding-up its business, had constantly incurred losses, had its assets attached and had gradually had all its bank accounts frozen (see paragraphs 24 and 27-39 above)."
"It must be recalled in this regard that the right to have access to a court is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. However, the Court must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 I)."
The court later continued (para. 59-60):
"The Court recalls in this regard that in order to determine whether or not a person enjoyed the right of access, the amount of the fees requested is to be assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the phase of the proceedings at which that restriction has been imposed (Kreuz, cited above, para 60).
60. In the present case, the impugned financial restriction was not imposed on the applicant either at first instance, or at the appellate stage of the trial, and could not therefore be considered as being related to the merits of his claim or its prospects of success – considerations which might justify restrictions on the right of access to a court (see, a contrario, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316 B, pp. 80-81, paras 61 et seq.). The existence of the final and enforceable judgment in the applicant's favour stands, on the contrary, for the fact that the applicant's litigation had been meritorious. Consequently, the imposition of the obligation to pay expenses in order to have that judgment enforced constitutes a restriction of a purely financial nature and therefore calls for particularly rigorous scrutiny from the point of view of the interests of justice (see Podbielski and PPU Polpure v. Poland, no. 39199/98, paras 65, 26 July 2005)."
Applying these principles, the court held that the imposition of the fee in that case did infringe Article 6(1).
"Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and individuals'...Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
Access to the court: the context
"We turn to the outcome, examining each of the three critical scenarios in turn. In scenario 5 the disposable monthly income of the notional single parent is £441.59. The remission scheme would mean that a maximum of £470 is paid for any single fee. The ET issue fee for a Type B claim is £250 and thus the whole fee would be payable without remission. Remission would limit the ET hearing fee for a type B claim to £470. A very low number of cases proceed to the EAT. In the unlikely event of appeal the EAT issue fee is £400 and would be payable without remission. The EAT hearing fee would be capped following remission at £470.
An ET claim must be issued within the relevant limitation period (three months in many cases) and must be accompanied by either the applicable fee or the completed application for remission. This means that, potentially, a claimant has up to three months from when the claim arose until they will have to pay the issue fee, and will have longer if an application for remission is made. The ET issue fee of £250 represents 57% of the disposable monthly income, with three months to accumulate the fee. The ET hearing fee, payable in the great preponderance of cases after a further period of months, represents 106% of the disposable monthly income. For those few whose cases proceed to the EAT, the issue fee would represent 91% of disposable monthly income, and the EAT hearing fee, after remission, 106% of a disposable monthly income.
Under scenario 7 the notional ET Claimant's disposable monthly income is £608.43 and the remission scheme would mean a maximum fee at any point of £500. The ET issue fee for a Type B claim is well within that maximum at £250, representing 41% of the disposable monthly income. The ET hearing fee for a Type B claim, capped at £500, represents 82% of disposable monthly income. An EAT issue fee at £400, represents 66% of a disposable monthly income, and the EAT hearing fee, capped at £500, represents 82% of the disposable monthly income.
Finally we turn to scenario 8. In relation to this notional individual, the Claimant emphasises the considerable modesty of the income concerned, by pointing out that the net monthly income in the agreed calculation includes a top up of state benefit to the family, as set out in the calculations of Ms Endean's second statement, Annex B paragraph 67. We accept the relevance of the comment. It must be clear to all that these notional Employment Tribunal Claimants and their families are living on a very modest income. Yet, after essentials the disposable monthly income is £556.81 a month. For this claimant, the maximum fee payable is £520 in respect of any fee arising. Thus the ET issue fee of £250 for a type B claim represents 45% of disposable monthly income. The ET hearing fee for a Type B claim will be capped at £520, a sum which represents 93% of disposable monthly income. An EAT issue fee at £400 would fall to be paid in full, representing 72% of disposable monthly income. An EAT hearing fee will be capped at £520, which represents 93% of disposable monthly income for the individual.
We conclude that the combined effect of the remissions in the periods before and between the dates when fees must be paid, is that there is a sufficient opportunity even for families on very modest means, as illustrated in the three notional claimants, to accumulate funds to pay the fees. Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult.
The very use of the adverb "excessively" in the jurisprudence suggests that the principle of effectiveness is not violated even if the imposition of fees causes difficulty and renders the prospect of launching proceedings daunting, provided that they are not so high that the prospective litigant is clearly unable to pay them. Kreuz v Poland  11 BHRC 456 establishes, in relation to Article 6, ECHR, that it is legitimate to impose financial restrictions on access to court, but a fee equivalent to the average annual salary in Poland was excessive (-). In Kijewska v Poland  ECHR 73002/01 the domestic court appears to have refused to take into account the litigant's impecuniosity.
It is clear that any regime must be flexible, and have regard to the means of prospective litigants. The real difficulty lies in deciding when the level of fees imposed can properly be condemned as "excessive". The mere fact that fees impose a burden on families with limited means and that they may have to use hard-earned savings is not enough. But it is not possible to identify any test for judging when a fee regime is excessive. It will be easier to judge actual examples of those who assert they have been or will be deterred by the level of fees imposed."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
" … the statutory concept, in my judgment, is that of a 'pool' or 'relevant population,' meaning those persons, male and female, who satisfy all the relevant criteria, apart from the requirement in question."
"erred in law in having regard to a "pool" which consisted of only those train operators who were single parents, a subdivision not warranted by the statutory provisions. The pool consisted of train operators, male and female, to whom the new rostering arrangements were applied."
Lord Justice Potter adopted a similar analysis in the Court of Appeal in that case ( ICR 494, 505):
"The identity of the appropriate pool will depend upon identifying that sector of the relevant workforce which is affected or potentially affected by the application of the particular requirement or condition in question and the context or circumstances in which it is sought to be applied"
"Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question."
It must equally follow that it cannot be shown by excluding those who are disadvantaged by the rule in question. The pool must be all those who have to pay category B fees in order to be allowed to bring their claims. Accordingly I would reject this argument.
"A three stage test is applicable to determine whether the birth link criteria are proportionate to the aim to be achieved: see de Freitas v. Permament Secretary of Ministry of Agriculture, Fisheries and Housing  AC 69 at 80 and R (Daly) v. Secretary of State for the Home Department  UKHL 26,  2 AC 532 at paragraph 27 and 28. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?"
"There is, it seems to me, some degree of artificiality about such an approach to the question of justification. As Elias J observed in the Redcar & Cleveland case,  IRLR 91, at paragraph 91, 'Almost every decision taken by an employer is going to have regard to costs.' Regulation 3(1), however, says nothing of the extent to which considerations of cost may feature in the justification exercise. It provides merely that what would otherwise be discriminatory treatment may be justified if it was 'a proportionate means of achieving a legitimate aim'. The relevant question must therefore be whether the treatment complained of was such a means. Accepting, as I make clear I do, that the guidance of the Court of Justice is that an employer cannot justify discriminatory treatment 'solely' because the elimination of such treatment would involve increased costs, that guidance cannot mean more than that the saving or avoidance of costs will not, without more, amount to the achieving of a 'legitimate aim'. That is entirely unsurprising. To adopt a simple example given by Mr Short, it is hardly open to an employer to claim to be entitled to justify the discriminatory payment to A of less than B simply because it would cost more to pay A the same as B. Such treatment of A could not, without more, be a 'legitimate aim'."