Tribunal Fees in the Supreme Court:

In perhaps the most important judgment in employment law of the last fifty years, a seven-person Supreme Court has found that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (Fees Order) prevents access to justice and is unlawful.

The immediate consequence is that the Fees Order is quashed, so that as of today fees cease to be payable for claims in the employment tribunal (ET) and appeals to the EAT, and fees paid in the past must be reimbursed. But the judgment is of much wider constitutional significance, underlining the high degree of protection given to access to justice by the common law and clarifying the principles which will be used to scrutinise impediments to that fundamental constitutional right.

The lawfulness of the Fees Order was challenged by UNISON, supported by the interveners, the Equality and Human Rights Commission. UNISON lost in two Divisional Court hearings below, and in the Court of Appeal.

Lord Reed gave the principal judgment with which all other SCJs agree. He first outlined the operation of the Fees Order and empirical evidence relevant to its effect – including the low level of most ET awards, the poor record of enforcement, and the dramatic impact of the Fees Order on the number of claims (and especially on low value claims). After noting that the Order had made a much less significant contribution to tribunal costs than expected, had failed to deter unmeritorious claims, and did not appear to have improved the proportion of cases which had settled through ACAS, Lord Reed turned to the issue which lay at the heart of the case – the importance of the constitutional right of access to the courts, as an essential element of the rule of law.

Lord Reed’s analysis is noteworthy in at least two respects: first, because he begins not with Article 6 EHRC but with the common law; second, because he emphasises that unimpeded access to the courts is a benefit to the public and not just to the parties themselves:

“Without [access to the courts], laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not provide a public service like any other”

Contrary to these fundamental principles, the government’s consultation papers had assumed that the justice system was only of value to “users” of the system.

Citing a letter written by a Lord Chancellor “of a previous generation”, Magna Carta, Sir Edward Coke, Blackstone and common law authorities on the rights of every citizen to unimpeded access to the court, Lord Reed concluded that the Fees Order would be unlawful if there was a “real risk” that it would effectively prevent persons from having access to justice. Alternatively, it will be unlawful if the degree of intrusion goes beyond what is justified by the objectives of the relevant provision – a test analogous to the proportionality test under the ECHR.

As to the first principle, Lord Reed concluded that the Fees Order did effectively prevent access to justice. The evidence showed that the fees were not set at a level that everyone could afford. This included: the sharp and sustained drop in the number of claims; the estimate in the recent Review that 10% of claimants did not bring proceedings because they could not afford the fees; and the hypothetical examples presented in evidence by Unison, of how fees impacted on claimants in low to middle incomes. The existence of the exceptional power of remission, which was exercised only about 51 times from July 2015 until December 2016, was no answer to this picture: the problem was systemic.

A number of other factors reinforced this conclusion. The fees were set at a level which rendered it futile or irrational to bring smaller claims. For example, no sensible person would pay a fee of £390 to bring a claim of £500 unless he was virtually certain to succeed, that he would be reimbursed his fees and that the award would be satisfied in full. But success can rarely be guaranteed, and only half of successful claimants receive payment in full. Little wonder that the statistics show that fees deter especially claims for low sums.

Turning to the second principle, Lord Reed concluded that it too was breached: fees were not justified as a necessary intrusion on the right of access to courts.  The Government had not produced evidence to show why the fees had been set at the level they had, and had falsely assumed that the higher the fee, the higher the revenue (an assumption which contradicted “elementary economics and plain common sense” because the optimal price depends on the elasticity of demand). Nor had the Government shown that fees met the other objectives for their introduction, such as deterring weak claims. Finally, the Government had also failed to consider the public benefits flowing from the enforcement of rights conferred by Parliament.

Lord Reed supported his analysis of the common law by reference to the EU principles of effectiveness and effective judicial protection, and the case-law on Article 6 ECHR. These two jurisdictions now chime together, and require that any restriction on access to the courts must pursue a legitimate aim and be proportionate to the aim. Here, the Court of Appeal erred in assuming that the only question was whether it was impossible to pay fees in practice. Rather, the Strasbourg case-law showed that other factors were relevant to proportionality, including whether fees were proportionate to the sums at stake. In light of his conclusions based on the common law, Lord Reed considered that the Fees Order also imposed disproportionate restrictions for the purpose of EU law.

It followed, according to Lord Reed, that the Fees Order was unlawful under both domestic and EU law, and “since it had that effect as soon as it was made, it was therefore unlawful ab initio and must be quashed”.

Agreeing with Lord Reed’s analysis of the right of access to a court, Lady Hale also held that the Fees Order was indirectly discriminatory against those with a protected characteristic. The parties accepted that the Fees Order had a disparate impact upon women, so that the question was whether it was justified as a proportionate means of achieving a legitimate aim. Lady Hale, relying on similar reasoning to Lord Reed held that the treatment was not justified.

The short-term consequences of the judgment are that with immediate effect fees are no longer payable for claims before the ET or appeals to the EAT and, in accordance with an undertaking given by the Lord Chancellor to the courts below, all fees which were paid in the past must be reimbursed. The long-term consequence is that the Supreme Court has given the strongest possible endorsement to the fundamental public importance of access to justice, meaning that future restrictions of all kinds (and not just financial barriers) on access to the courts will be subjected to the closest scrutiny in accordance with the principles set out by Lord Reed.

Michael Ford QC, Mark Whitcombe and Spencer Keen were instructed by the Intervener, the Equality and Human Rights Commission (Rosemary Lloyd and Mike Young)
Read The Guardian's article by clicking here

Ex-wife begs judges to end her 16-year divorce battle with ‘evasive’ airline pilot

The ex-wife of a millionaire pilot who is locked in Britain’s longest divorce battle has pleaded with senior judges to end the “ghastly” 16-year legal fight.

Viki Maughan, 50, and her former partner, Richard Wilmot, 62, have been fighting over money since they split in 2001, with Mr Wilmot claiming that  her daughter had been fathered by another man.

Mr Wilmot, an ex-British Airways captain, is “absolutely convinced” he is not the father. He accuses his ex-wife of fabricating evidence to try to extract maintenance payments from him.

Ms Maughan says he needs to “accept reality”. At the Court of Appeal, she asked judges to order Mr Wilmot to honour their 2001 divorce settlement.

Her barrister, Jonathan Swift, told the court: “A significant air of reality needs to descend in this case.” He said his client has a “sincere wish that this court should dispose of this matter with as many restraining directions as possible, so it may never be resurrected again”.

Lady Justice Black, Lord Justice Sales and Lord Justice Moylan heard the couple lived in an £800,000 country home, Hartley Oast, in Cranbrook, Kent, before they split in the late Nineties.

Mr Wilmot, who flies for Turkish Airlines, has remarried and lives in an £800,000 country house in Alcombe, Somerset. He also has a £500,000 18th-century listed house in Dunster, Somerset, and a property in Kirk Michael on the Isle of Man, the court heard.

He argues that £390,000 he has paid to Ms Maughan since their divorce was “obtained by fraud”, claiming that a 2000 DNA test — which concluded he was the father — is invalid and that the child’s birth certificate was a forgery.

He has now gone to the Appeal Court, asking the judges to block Ms Maughan’s claims for more money under the 2001 settlement. As well as not paying maintenance, he has also been accused by Ms Vaughan of being “evasive” and trying to dodge court papers.

 esterday, he said he had not properly received court documents by email as he could only access “slow internet” abroad. Nicholas Bowen QC, for Mr Wilmot, said: “He only comes back to the UK for a few weekends a year. He is based in the air, all over the world.”

He did not want to receive documents at his Somerset home because he “didn’t want to be pursued by this ghastly case” and sought to protect his new wife “from the wreckage of the past”.

“He therefore told his wife that if anything turns up at Alcombe, just send it back,” said Mr Bowen.

At an earlier hearing, a judge told Mr Wilmot that the case “could bankrupt you”, as he could face years of maintenance back payments as well as a hefty costs bill if he lost. The Appeal Court  judges have reserved their decision on Mr Wilmot’s appeal until a later date.

Outdated law of wills ‘needs overhaul’ to reflect modern world

The outdated law of wills needs an overhaul according to the Law Commission.

The independent body say that Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their possessions after their death.

The Law Commission says that an estimated 40 per cent of adults die intestate each year and it is thought that the laws could be discouraging people from making a will. 

As a result, the Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.

The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.

In a new consultation paper, the Law Commission proposes:

• Giving the court power to recognise a will in cases where the formality rules have not been followed but the will-maker has made clear their intentions.
• An overhaul of the rules protecting those making a will from being unduly influenced by another person.
• Applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will.
• Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
• Giving the Lord Chancellor power to make provision for electronic wills.
• Lowering the age at which people are able to make a will from 18 to 16 years old.

The paper also asks whether the rule that marriage revokes a will should be retained or abolished.

Law Commissioner Professor Nick Hopkins said:

"Making a will and passing on your possessions after you've died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.

"Even when it's obvious what someone wanted, if they haven't followed the strict rules, courts can't act on it. And conditions which affect decision-making – like dementia – aren't properly accounted for in the law.

"That's not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people's last wishes."

For more information, click here