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Unison v Lord Chancellor to be heard in Supreme Court 27/3/17

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Daphne
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Unison, R (On the Application Of) v The Lord Chancellor [2015] EWCA Civ 935 listed for Supreme Court on 27 March 2017.

Court of Appeal ruled that it cannot be inferred that a drop in the number of employment claims was entirely down to potential claimants unable to afford fees.

https://www.supremecourt.uk/docs/hilary-term-2017.pdf

ikbikb
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Of course not entirely so therefore a signifucant reason nonetheless.

Meanwhile ‘Hilary Term’ is defined as ‘the second academic term of the Universities of Oxford and Dublin and also Deepdene School near Portslade in East Sussex. It runs from January to March and is so named because the feast day of St Hilary of Poitiers’

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Supreme Court judgment today R (on the application of UNISON) v Lord Chancellor rules that the 2013 employment tribunal Fees Order is unlawful, breaching the EU principle of effective access to justice, and is indirectly discriminatory.

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Blimey!

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Press release from Unison:

Employment tribunal fees will be scrapped after UNISON won a landmark court victory against the government this morning.

The Supreme Court – the UK’s highest court – has unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees four years ago.

From today, anyone who has been treated illegally or unfairly at work will no longer have to pay to take their employers to court – as a direct result of UNISON’s legal challenge.

The government will also have to refund more than £27m to the thousands of people charged for taking claims to tribunals since July 2013, when fees were introduced by then Lord Chancellor Chris Grayling.

https://www.unison.org.uk/news/article/2017/07/tribunal-fees-victory/

 

Mike Hughes
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Huzzah. Doubt we can breathe easy on fees for social security appeals though. It will rear it’s ugly head once again at some point.

Paul_Treloar_AgeUK
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Good stuff, very good decision. In what I find even more surprising news:

The Government will take steps immediately to stop charging employment tribunal fees and to refund thousands of people who have paid in recent years, following a Supreme Court ruling, the Ministry of Justice said.

Justice Minister Dominic Raab said that in setting employment tribunal fees, “the Government has to consider access to justice, the costs of litigation, and how we fund the tribunals”.

“The Supreme Court recognised the important role fees can play, but ruled that we have not struck the right balance in this case,” he said.

“We will take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid.

Government to refund tribunal fees after Supreme Court ruling, Ministry of Justice reveals

Mike Hughes
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Cue attempt to “strike the right balance”.

Can’t wait.

Paul_Treloar_AgeUK
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Yes, although it’s good they’ve stopped charging now and are refunding, I have a feeling this may not necessarily ne the last chapter here….

ClairemHodgson
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an excellent decision; a brilliant take down of the government’s position.  many implications for the government’s position elsewhere (in civil court), particularly on fees and their current proposals for costs and rta claims…..

see in particular paras 65 - 85.

and lady hale who concentrated particularly on discrimination - obiter, as not necessary to the decision, but nontheless valid for all that….

i rather think the judiciary have made their overall position more than clear…...

Mike Hughes
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So, on what we know so far.

1 - brilliant decision.
2 - likely to have consequences and redirect but not stop attempts to raise money.
3 - likely to result in an indirect strike on the judiciary by government as a punishment.

ClairemHodgson
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Mike Hughes - 26 July 2017 08:08 PM

3 - likely to result in an indirect strike on the judiciary by government as a punishment.

i was thinking yesterday, as i read it, that i’m glad we don’t live in e.g. Turkey…......

Peter Turville
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Or see front page of the Daily Mail today (via BBC website honest) “Queue here for the gravy train” - cue another attack on judiciary etc.

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Peter Turville - 27 July 2017 12:41 PM

Or see front page of the Daily Mail today (via BBC website honest) “Queue here for the gravy train” - cue another attack on judiciary etc.

but of course they’d say exactly the opposite were they on the winning side in litigation…..

Mike Hughes
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ClairemHodgson - 27 July 2017 01:54 PM
Peter Turville - 27 July 2017 12:41 PM

Or see front page of the Daily Mail today (via BBC website honest) “Queue here for the gravy train” - cue another attack on judiciary etc.

but of course they’d say exactly the opposite were they on the winning side in litigation…..

Aw come on now :)

http://newsthump.com/2015/01/20/daily-mail-down-to-just-2376253-potential-causes-of-cancer/

http://www.anorak.co.uk/288298/tabloids/the-daily-mails-list-of-things-that-give-you-cancer-from-a-to-z.html/

Peter Turville
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Mike Hughes - 27 July 2017 01:58 PM

http://www.anorak.co.uk/288298/tabloids/the-daily-mails-list-of-things-that-give-you-cancer-from-a-to-z.html/

I followed the link under W for work (hoping for a way to wangle early retirement etc) - but it leads to a scare about Nutella & Kinder Eggs.

You just can’t trust what you read in the tabloids!

Surrey Adviser
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Three comments.

1.  What has worried me for some time is that we appear to have developed over a period a situation where more & more laws are, in effect, made by judges & not by Parliament.  When I was young (admittedly a long time ago!) I doubt that judicial review existed - or if it did it was on such a small scale that it just wasn’t on the radar.  Nor do I recollect Courts overturning Parliamentary decisions in the way that seems to happen pretty frequently now.  I’m not saying that this is always a bad thing (& in the present case there’s no doubt that the fee level was far too high) but the extent of the drift away from Parliamentary law making concerns me.

2.  Part of the argument in the present case was that people were denied access to justice, & I can well understand this, given the level of fees.  But if that was the judges concern what do they think about all the other people denied access to justice - such as those unable to use the civil Courts because they don’t qualify for a fee exemption but can’t afford the fees?.

3.  The Court & Tribunal service has to be paid for somehow & I can understand the Government, given the parlous financial state of the country (with the enormous & ever growing national debt) wanting to remove as much as possible of the cost from taxation & place it on the users of the service.  I don’t pretend to know how to strike the right balance but I’m far from sure that providing Tribunal services free to everyone is necessarily correct.  I know from my own past experience that there are vexatious claims, & also cases where employers decided to make an unsubstantiated claim go away by making a payment because of the cost (& expenditure of staff time) involved in having to go to Tribunal.

ClairemHodgson
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I’m going to write a bit of an essay…......

Surrey Adviser - 27 July 2017 05:36 PM

Three comments.

1.  What has worried me for some time is that we appear to have developed over a period a situation where more & more laws are, in effect, made by judges & not by Parliament.  When I was young (admittedly a long time ago!) I doubt that judicial review existed - or if it did it was on such a small scale that it just wasn’t on the radar.  Nor do I recollect Courts overturning Parliamentary decisions in the way that seems to happen pretty frequently now.  I’m not saying that this is always a bad thing (& in the present case there’s no doubt that the fee level was far too high) but the extent of the drift away from Parliamentary law making concerns me.

Judicial review has existed for many years - certainly since the Wednesbury case in 1947 (http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/1947/1.html&query;=(title:(+wednesbury+)))

and prior to that the judges always ensured that the king/parliament acted within the law, so far as they could (read yesterday’s SC decision in the Unison case for a history).

As the court said, the executive has to comply with the law along with the rest of us.  the executive is not only the government of the land, but local authorities (planning is a common theme, but also other stuff they have to do, and have to do right), the legal aid board (i was involved with a JR against it so we could get the British Coal VWF Litigation off the ground, they wanted to pull the plug from legally aided clients).  and so on and so forth.

Surrey Adviser - 27 July 2017 05:36 PM

2.  Part of the argument in the present case was that people were denied access to justice, & I can well understand this, given the level of fees.  But if that was the judges concern what do they think about all the other people denied access to justice - such as those unable to use the civil Courts because they don’t qualify for a fee exemption but can’t afford the fees?.

They are of the same view on that, but no one has brought a JR on the point.  thought has been given to doing so, and i have no doubt that more thought will be given following yesterday.  Judges regularly comment on the lack of funding available to the litigants in person appearing before them, in some very hard cases.  See, for instance, Francis J’s jdugement in the Charlie Gard case the other day http://www.bailii.org/ew/cases/EWHC/Fam/2017/1909.html

Surrey Adviser - 27 July 2017 05:36 PM

3.  The Court & Tribunal service has to be paid for somehow & I can understand the Government, given the parlous financial state of the country (with the enormous & ever growing national debt) wanting to remove as much as possible of the cost from taxation & place it on the users of the service.  I don’t pretend to know how to strike the right balance but I’m far from sure that providing Tribunal services free to everyone is necessarily correct.  I know from my own past experience that there are vexatious claims, & also cases where employers decided to make an unsubstantiated claim go away by making a payment because of the cost (& expenditure of staff time) involved in having to go to Tribunal.

again, i draw your attention to yesterday’s decision in the Unison case for an exposition of how court cases are for the general good, not just for the individuals involved; and for the statements of principle going back to magna carta.  this is particularly relevant where the discussion is about the “users of the service” rather than society in general.  a court service, like a health service, is a societal good of benefit to all (for the reasons set out by the SC).  whilst that doesn’t mean there shouldn’t be fees, it DOES mean they should be affordable.  also, courts should not be making a “profit” as was reported this week.  it’s not a business, it’s a service.

re employment - the evidence given in the case was that it wasn’t the vexatious or unmeritorious claims that had been prevented, but the meritorious ones (including those where the remedy wasn’t worth much more than the fee, or was for a declaration).  It’s for an employer/defendant to decide how to deal with what it thinks is a bad claim against it.  if it’s daft enough to settle when it should have fought - up to them.  This is one of the reasons, on the PI side, that the insurers pay out more than they perhaps should - they don’t fight the claims they should fight, but do argue the toss on those on which their insured are bang to rights.
In other fields, many people bring meritorious claims; if they can afford the fee, there is nothing to stop them unless and until they get to the point where it can be said with justification that they are a vexatious litigant.

Mike Hughes
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I am going to write a (relatively) shorter response. Most unlike me I know but here goes:

1) Given the powers Parliament is giving itself in order to push through Brexit I don’t think worrying about Parliament not making law is going to be a concern for decades to come. Parliament is giving itself a terrifying amount of power without scrutiny. The judiciary are going to have a critical role in limiting the abuse of that power and funnily enough politicians are stepping over each others bodies in the rush to attack the judiciary. There could not be a worse moment to suggest they have too much of a role.

2) Nothing to add as Claire has nailed it.

3) Personally speaking I am very much evidence based and empirically minded. Putting aside that charging people on a fixed income verges on immoral I find that the small number of vexatious litigants are as driven by mental ill health as notions of justice being ill-served. Even that statement verges dangerously on stereotyping. Either way they have little relevance to this discussion. 

That said, where has this idea that the country is in a parlous financial state come from? Austerity is an imposition of a political ideology not a necessity. An enormous and ever growing national debt is, sadly, capitalism at its best. Every attempt to manage a national economy by limiting the money supply has conspicuously failed and the pernicious idea that the economy should be managed like households i.e. balancing the budget, falls to pieces as soon as one glances at the level of individual debt. There’s not a household in the country living within its means; balancing its budget or even capable of doing so. It’s abject nonsense.

Oh, and the Great Depression anyone? You know. That thing that we should have learnt lessons from. Mistakes never to be repeated etc. Yet here we are. Sigh.

ClairemHodgson
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actually, on the JR front, i should also of course have drawn attention to

1. the various JR’s re social security/benefits
2. Gina Miller’s case re Article 50, where the government was also hauled into line

I agree with everything Mike has said re the powers the government is getting parliament to give it.

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The problem with the theory of parliamentary sovereignty is that while it is widely accepted that parliament is legislatively sovereign, it is when the question of political sovereignty arises that the theory begins to fall apart.

Parliament must exercise its powers according to the constitution developed over centuries of common law and through statutes devised as a result of political, often violent, upheaval.  The role of parliament has developed within this framework.  So has the role of the judiciary.  It is the final arbiter of the limits of the power of governments and parliaments under the constitution and it is its job to interpret any particular law within a patchwork of differently coloured statutes, often pulling in different directions.

Judges, according to one (and some might say, naive) view; do not make law they interpret the law as it is.  And judges themselves are the first to be alive to the dangers of ‘judicial activism’.  The system is far from perfect.  All systems are.  But I challenge anyone to come up with something better.

nevip
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And, by the way, Mike Hughes, spot on

Surrey Adviser
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1.  Well that’s me firmly put back in my box!  I take the comments on board.  However, we all accept that no person or organisation (Government, Parliament, Courts etc.) is infallible.  I would, on balance, rather have an error made by Parliament than one made by judges because the former is – ultimately – accountable to the people & the judges (in my opinion – probably to be disputed!) are not. 

3.  “also, courts should not be making a “profit” as was reported this week.  it’s not a business, it’s a service.”

I agree.  I looked this up in the 16-17 report & accounts.  The Fees & Charges table on p. 75 shows a surplus on Civil, but then adds the Tribunal services & there is a deficit overall of £60+ million.  The total deficit of the whole service (p.81) is over £943 million.  I think this sort of result (sometimes called cross subsidisation, I believe) is inevitable in any complex activity.  I suspect that if there was no surplus on Civil there could be more agitation for charges on Tribunals.

“It’s for an employer/defendant to decide how to deal with what it thinks is a bad claim against it.  if it’s daft enough to settle when it should have fought - up to them.”

It may be daft in some cases but far from always – it’s a commercial business decision based on an assessment of the direct cost & the indirect cost to the business of the staff time which would be spent going to Tribunal.  I’ve been there & done that – both going to Tribunal & deciding not to.

“That said, where has this idea that the country is in a parlous financial state come from? Austerity is an imposition of a political ideology not a necessity. An enormous and ever growing national debt is, sadly, capitalism at its best.”

I couldn’t disagree more!  The national debt has risen from £1 trillion in 2011 to at least £1.7 trillion now & is still increasing.  It has to be paid for – over £50 billion a year in interest at present, all to come from taxation.  If it just goes on spiraling upwards at some stage we’ll have trouble getting anyone to lend to us (back to Healey and the IMF in 1976?).  Of course, it’ll never be paid off in full (& nor should it be) but to do nothing about correcting the ever increasing amount is, in my view, irresponsible to future generations.

“There’s not a household in the country living within its means; balancing its budget or even capable of doing so. It’s abject nonsense.”

Poetic licence taken to extremes?  You cannot be serious!  I know quite a few households with no mortgage or other debt & either no credit card or paying it off in full each month.  I’m sure there are many many more.

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Surrey Adviser - 31 July 2017 10:03 AM

1.  Well that’s me firmly put back in my box!  I take the comments on board.  However, we all accept that no person or organisation (Government, Parliament, Courts etc.) is infallible.  I would, on balance, rather have an error made by Parliament than one made by judges because the former is – ultimately – accountable to the people & the judges (in my opinion – probably to be disputed!) are not. 

Seriously?  you need to go read some case law where it is made more than clear that

And don’t tell me you think elected judges would be better - you only have to look at the states, where some counties elect their judges,  to see that that isn’t so, since they’re then in pledge to the people who financed their campaigns.

having said that, the US constitution’s checks and balances are there for a purpose - to ensure that all branches of government abide by the law.

 

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Claire   At least we can agree on something!  I may be unhappy about the way some aspects of our system work but elected judges would horrify me.

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New Case Management Order from Presidents of the Employment Tribunals in England and Scotland relating to the staying of cases arising from the Supreme Court’s decision in the Unison case.

https://www.judiciary.gov.uk/wp-content/uploads/2015/03/case-management-order-of-the-president-scotland-re-unison-20170809.pdf

The Law Society Gazette. also has details.

[ Edited: 10 Aug 2017 at 08:41 pm by Stuart ]
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Law Society Gazette reports of one of the first cases, a discrimination claim, revived after employment fees ruled unlawful.

https://www.lawgazette.co.uk/news/employment-first-discrimination-claim-revived-after-fees-ruled-unlawful/5062460.article#.WZL_2UAAbEE.twitter

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stuart - 15 August 2017 03:31 PM

Law Society Gazette reports of one of the first cases, a discrimination claim, revived after employment fees ruled unlawful.

https://www.lawgazette.co.uk/news/employment-first-discrimination-claim-revived-after-fees-ruled-unlawful/5062460.article#.WZL_2UAAbEE.twitter

cue much more litigation on the point, i should think…...needs EAT and will probably go to CA, if not in this case in another.

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Employment Law Bulletin saying details of the employment tribunal fees refund scheme to be announced during September -

As you are probably aware, in advance of the Supreme Court’s judgment in the Unison case an undertaking was given to the Court to refund Employment Tribunal and Employment Appeal Tribunal fees, should the Fees Order be declared unlawful.

We are now working on the detailed arrangements of the scheme to enable that undertaking to be met and we aim to ensure that the process is as simple and unobtrusive as possible for those who make an application, while ensuring that refunds are only paid to those who are entitled. There are, however, a number of points of detail that we do need to address including, for example, how to deal with refunds in claims involving multiple claimants, and how it will operate when the tribunal has ordered the opposing party to reimburse a fee.

Please bear with us during this period, and we hope to be in a position to make an announcement on the details of the refund scheme during September

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LexisUK Employment reports that HMCTS is to launch a fee reimbursement scheme (with initial pilot) in about a week.

https://twitter.com/LexisUK_Employ/status/919942128536518656