R (Unison) v Lord Chancellor (Nos 1 and 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Davis,Lord Justice Moore-Bick |
| Judgment Date | 26 August 2015 |
| Neutral Citation | [2015] EWCA Civ 935 |
| Docket Number | Case No: C1/2015/0059 C1/2014/1172(C) |
| Court | Court of Appeal (Civil Division) |
| Date | 26 August 2015 |
and
[2015] EWCA Civ 935
Lord Justice Moore-Bick
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Davis
and
Lord Justice Underhill
Case No: C1/2015/0059
C1/2014/1172(A)
C1/2014/1172(C)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Moses and Mr Justice Irwin
AND ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Elias and Mr Justice Foskett
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Karon Monaghan QC and Mr Mathew Purchase (instructed by Unison Legal Services) for the Appellant
Mr David Barr QC and Ms Susan Chan (instructed by Government Legal Department) for the Respondent
Mr Michael Ford QC (instructed by Equality and Human Rights Commission) for the Intervener (written submissions only)
Hearing dates: 16 & 17 June 2015
INTRODUCTION
Until 29 July 2013 claimants could pursue proceedings in an employment tribunal (an "ET") without paying any fee to Her Majesty's Courts and Tribunals Service ("HMCTS"); likewise appellants to the Employment Appeal Tribunal ("the EAT"). By the Employment Tribunal and the Employment Appeal Tribunal Fees Order 2013 ( SI 2013/1893) ("the Fees Order"), made by the Lord Chancellor under statutory powers, that has ceased to be the case. Under the Order fees are payable by the claimant or appellant on the commencement of a claim or appeal and also in advance of the final hearing, unless they are entitled to a remission on account of limited means: I give fuller details below.
On 1 July 2013 the trade union Unison commenced judicial review proceedings challenging the Lord Chancellor's decision to make the Fees Order, which had been laid before Parliament but not yet made. I need not at this stage set out the grounds of challenge in full, but a central ground was that the fees were set at such a level, and the remission criteria were so restricted, that many claimants would be unable to afford to bring a claim in the tribunals. I will refer to these proceedings as Unison 1.
Unison sought a stay on the making of the Fees Order pending the decision on its challenge. In his response the Lord Chancellor volunteered an undertaking "that, if he is allowed to make the Order and if, following exhaustion of appeal rights, it is found to be unlawful, he will reimburse all fees that have been paid". That undertaking was apparently tendered to Lewis J at a hearing on 29 July 2013, though it was not (as it should have been) incorporated in the recital to his order; and no stay was ordered. The Order came into force on that day.
The claim in Unison 1 was heard by a Divisional Court comprising Moses LJ and Irwin J over two days in mid-October 2013 and on a third day in November. The Equality and Human Rights Commission ("the Commission") intervened in support of the challenge. By a judgment handed down on 7 February 2014 ( [2014] EWHC 218 (Admin), [2014] ICR 498) the claim was dismissed. A principal reason why the challenge failed was that the Court believed that it was premature, because it was wrong to reach a decision on the impact of the Fees Order on the basis of predictions rather than wait until it was possible to see what its effect had been in practice. Consistently with that reasoning, the Court refused permission to appeal, although it was acknowledged that the claim raised some arguable issues, on the basis that the right course was for Unison to launch further proceedings, if it chose, once better information was available.
Unison did not, and does not, accept that the challenge in those proceedings was premature. It applied to this Court for permission to appeal. On 19 May 2014 Sedley LJ gave limited permission and also made an order permitting Unison to adduce evidence about the reduction in the volume of claims to the ET and appeals to the EAT in the period since fees had been introduced.
Unison renewed its application orally in relation to the grounds on which permission had not been given; and the Lord Chancellor in his turn applied to have the order for the admission of further evidence set aside. However, when those applications came before myself and Sharp LJ in September 2014 Unison had announced that it was about to issue further proceedings, and it was agreed that the applications should be stood over for the time being.
The further proceedings (" Unison 2") were filed on 23 September 2014. The grounds of challenge overlap with those in Unison 1 but Unison was able to rely on evidence about the actual impact of the fees in the period of more than a year since they were introduced.
Unison 2 was heard in October 2014 by a Divisional Court comprising Elias LJ and Foskett J. The Commission again appeared as an intervener. By a judgment handed down on 17 December 2014 ( [2014] EWHC 4198 (Admin), [2015] ICR 390) the claim was dismissed.
The Divisional Court itself gave permission to appeal against that decision. The parties then sought to revive the applications in Unison 1 to which I have referred at para. 6 above. On 31 March 2015 Burnett LJ and I gave permission to appeal as regards the remaining grounds and directed that both appeals be heard together. We stood over to the hearing of the substantive appeals the Lord Chancellor's application to set aside the order of Sedley LJ permitting the introduction of fresh evidence.
Accordingly what is before us are the appeals against the decisions in both Unison 1 and Unison 2. Ms Karon Monaghan QC and Mr Mathew Purchase appear for Unison, as they did at first instance in both cases. Mr David Barr QC and Ms Susan Chan appear for the Lord Chancellor; Ms Chan appeared on her own at first instance in both cases. The Commission has again been permitted to intervene, but on this occasion it has done so only in the form of written submissions settled by Mr Michael Ford QC.
THE FEES ORDER
The Statutory Basis
Section 42 (1) of the Tribunals, Courts and Enforcement Act 2007 confers power on the Lord Chancellor by order to prescribe fees payable in respect of "anything dealt with by" the First-tier and Upper Tribunals and also by an "added tribunal". By section 43 (3) the Lord Chancellor was given powers to specify "added tribunals": the ET and the EAT were so specified by the Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013 (SI 2013/1892).
The Introduction of the Order
In January 2011 the Government announced that it was its view that in principle users of the ET and the EAT should be asked to contribute towards the costs of running them by the payment of fees. Detailed proposals were advanced for consultation in December 2011. A response to consultation was issued in July 2012. On 25 April 2013 a draft of the eventual Fees Order was laid before Parliament. It was debated and approved by both Houses under the affirmative resolution procedure. It was made on 28 July 2013 and, as I have said, came into force on the following day.
The Fees
Article 3 of the Fees Order makes general provision for fees to be payable in respect of any claim presented to an ET or of an appeal to the EAT. Fees in the ET are governed by Part 2 and fees in the EAT by Part 3.
So far as fees in the ET are concerned, article 4 defines the "charging occasions" on which fees will become payable by claimants. There are two basic charging occasions — when a claim is presented ("the issue fee"), and when notice is given of the listing of a final hearing ("the hearing fee"). Fees are also chargeable on the making of various kinds of application. The amounts chargeable are specified in tables set out in Schedule 2. So far as the issue fee and hearing fee are concerned, these vary depending on whether the claim is brought by a single claimant or a group and on whether the claim is classified as "type A" or "type B". Table 2 defines 61 specific types of claim as type A; type B are the rest. Broadly speaking, type A claims are those which the Lord Chancellor regards as typically the more straightforward: I annex a copy of the table. Unfair dismissal claims and discrimination claims do not appear in the table and accordingly fall into type B 1. The issue fee and hearing fee for a single claimant bringing a type A claim are £160 and £230 respectively (thus £390 in total); for a type B claim the figures are £250 and £950 (£1,200 in total). For multiple-claimant claims the figures depend on the numbers in the group. I need not give all the variables. For the smallest group (up to ten claimants) the totals are £780 for type A claims and £2,400 for type B claims; for the largest (over 200) they are £2,340 for type A and £7,200 for type B. I need not give the figures for applications.
In the EAT £400 is payable when the appeal is issued and £1,200 when the EAT directs that the appeal proceed to an oral hearing. There is no distinction between different "types" of appeal or between single and group appeals.
Remission
Article 17 enacts Schedule 3, which contains the provisions relating to fee remission. These reproduce the regime for remission of fees in the ordinary courts. That regime changed soon after the Fees Order came into force, with the result that a new Schedule 3 was substituted with effect from 7 October 2013 (see the Courts and Tribunals Fee Remissions Order 2013 ("the Remissions...
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