Ministry of Justice v Burton & Anor [2016] EWCA Civ 714

Case No A2/2016/0010/EATRF[2016] EWCA Civ 714
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MR JUSTICE LANGSTAFF, PRESIDENT
UKEAT021015
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/07/2016
Before
LORD JUSTICE ELIASLORD JUSTICE KITCHINLADY JUSTICE KING
Between
MINISTRY OF JUSTICEAppellant(1) Ms BURTON &Respondent(2) Mr ENGELRespondent
Charles Bourne QC and Rachel Kamm (instructed by Government Legal Department) for AppellantSaul Margo (instructed by Leigh Day Solicitors) for First RespondentMr Engel appeared in Person for in personHearing Hearing date : 6 July 2016
Judgment
[1]This appeal raises a short point. It arises out of the long running litigation about whether, and to what extent, part-time fee-paid judges have been treated less favourably than full-time salaried judges contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.[2]The respondents, whom I shall call the claimants, as they were before the Employment Tribunal, were both part-time chairs of the Residential Property Tribunal (RPT), which is now part of the First-tier Tribunal (Property Chamber). As part-time judges, they have already been held to have been less favourably treated than their full-time judicial comparators with respect to their pension rights: see Ministry ofJustice v O’Brien [2013] UKSC 6; [2013] ICR 499. These particular claimants are now contending that they were also less favourably treated with respect to the way in which they were paid for writing up judgments when compared with their full-time judicial comparators. This is a test case which will determine the outcome for many other judges in that jurisdiction.[3]It was agreed that there was no full-time equivalent with whom they could compare themselves in the RPT itself because full-time judges in that jurisdiction have additional administrative responsibilities over and above their judicial functions which made a direct comparison inappropriate. However, it was held in an earlier decision, Edge and others v Ministry of Justice that they were doing broadly similar work to, and could therefore compare themselves with, full- time salaried judges in the First-tier Tribunal (Tax Chamber). There was no appeal against that decision. Employment Judge Macmillan, who made that determination, also upheld the claim that they had been less favourably treated than their full-time comparators in respect of the fees paid for decision writing in relation to one category of their work, leasehold valuation cases. That is not so, however, with the other major element of their work, rent assessment. After hearing evidence about the nature of the judicial writing exercise in the leasehold valuation jurisdiction, EJ Macmillan held, in a carefully reasoned decision dated 13 November 2014, that in order to remove the less favourable treatment and bring about parity, as the Regulations require, the claimants should have been paid an additional fee of two thirds of the daily fee for each day’s sitting. Accordingly, if a judge heard a case over three days, he or she would be paid for two further days to cover judgment writing.[4]The MoJ do not now contend, as they initially did, that there was no less favourable treatment. It did submit below, however, that the rate of payment stipulated by the judge has the effect of over compensating the claimants so that they are now treated more favourably than their comparators. The MoJ sought to have the decision overturned in two ways. First, it made an application for the ET itself to review its decision; second, it appealed to the EAT submitting that there was an error of law in the ET’s quantification of the loss. Neither of these applications was successful. Following the refusal to review, the MoJ also appealed against that decision.[5]In both the review application and the appeal on quantification, the MoJ argued both that the two thirds rate was too high, and that in any event, even if it was an appropriate rate for shorter cases, it over compensated for multi-day hearings. There should have been a tapering of the daily sum or alternatively a cap to the remuneration which could be received. The ET did not agree to reconsider either of these points, and the EAT held on appeal that the finding as to the daily rate was open to the ET on the evidence and was not perverse. The MoJ no longer seeks to challenge the conclusion that for shorter cases the two thirds per diem allowance is appropriate, but it does in this appeal submit that the rate should not be applied with respect to each day’s sitting for longer hearings.

The judgment of the Employment Tribunal

[6]The judge noted that it had not been suggested that the claimants were entitled to be paid for precisely the same amount of judgment time writing as the full-time judges of the tax tribunals. He explained why that would be to overcompensate them. He also identified a number of reasons why the exercise he had to undertake was both difficult - indeed, he said “almost impossible” - and necessarily produced a very rough and ready assessment. “3. At paras 60 and 61 of Edge I rejected a submission by Mr Bourne that I should take into account the nature of the different cases heard in the two jurisdictions when determining whether the work of the RPTS judges and the tax judges was broadly similar and there has been no appeal from that decision. But in this new context it seems that, implicitly, Mr Margo accepts that I must do so and in my judgment that is correct. Different jurisdictions impose different demands on their judges whether arising from the rules of procedure or simply the nature of the work of the jurisdiction, in particular when it comes to the question of how long it takes to do a task which is given the same label across jurisdictions but which in reality is markedly different. For that reason, although at first sight, the claimants’ contention that they have been treated less favourably because they have not been allotted (roughly speaking) ½ X as paid time for decision writing appears anomalous, it is in fact the only sensible approach to adopt. My task verges on the impossible (at least in the absence of sound empirical evidence) because it appears to involve a requirement to establish in the tax chamber how much time salaried judges are allocated for decision writing in normal working hours for which they are remunerated, how much, if any, additional time they reasonably require to write decisions outside of normal working hours for which they are not remunerated and how much time it is reasonable for the average RPTS judge to take to write the average LVT decision as (almost by definition) neither actually exist. The comparison is of course made even more difficult by the fact that tax judges are not merely full time they are salaried and therefore do not have specified normal working hours as far as I am aware. 4. I suggested prior to closing submissions that it was necessary for the claimants to do four things:(a) identify the less favourable treatment complained of:(b) specify what they say is required to prevent the less favourable treatment:(c) explain why that has the effect of eliminating the less favourable treatment: and(d) point to the evidence which supports that contention. Mr Bourne agreed that that was the correct approach and Mr Margo and Mr Engel did not submit that it was not. It is also common ground that if I am against the claimants in their contention that ½ X is the correct amount of time for which they should be remunerated for decision writing that is not necessarily the end of the matter. Provided I am satisfied that there is less favourable treatment in the matter of paying remuneration for decision writing I am at liberty, in fact required, to identify a different amount of time necessary to eliminate the less favourable treatment. It is, as Mr Bourne submitted, all a question of quantification. 5. I have stated my task in paragraph 3 as I have because of Mr Margo’s answer to point (b) in paragraph 4. Mr Engel adopts the same position. The answer to point (b) is not that the RPTS judges should be remunerated for the time which they actually spend in decision writing but for a notionally reasonable amount of time for writing the notionally average decision or decision of median complexity and that that should not be on the basis of a claim which must be justified but as an automatic adjunct to the daily sitting fee. More precisely each days sitting determining anything other than a rent case where only summary reasons are required, should be remunerated on the basis of 1 day sitting and 1 day decision writing. The swings and roundabouts principle copes with decisions which are both easier and more complex and in consequence shorter or longer than the median to write ...”.[7]Having concluded that the treatment of the claimants was less favourable than that meted out to the chosen comparators, the question thereafter was what should be done to eliminate that less favourable treatment. The judge was unhappy with the state of the evidence, partly because there was so little solid evidence available and partly because he did not consider that the evidence of the claimants as to their own experience of how long it took to write judgments was reliable. He concluded that their evidence was vague and prone to exaggeration and he rejected their submission that a day’s hearing would typically attract a day’s judgment writing. He then considered whether there was sufficiently robust evidence to enable him to form a view at all as to the appropriate level of payment and concluded “with some hesitation” as he put it, that there was.[8]The judge heard evidence from Judge McGrath, President of the FTT Property Chamber and formerly senior President of the RPTS. She said that in her view the time taken to write an average decision following a one day case was five and a half hours. This contrasted with the allocation of time to the tax judges which was between one and a half to two day’s judgment writing for each day’s sitting. But as EJ Macmillan pointed out, that was a difficult figure to encapsulate because there is considerable autonomy for such judges, and they often have to work in their own time to complete judgments.[9]The judge referred to a range of evidence which he had considered in order to assess the writing time. It is not necessary to recount it. Suffice it to say that he accepted the five and a half hour figure suggested by Judge McGrath, at least with respect to more recent years when, partly as a consequence of the Human Rights Act 1998, fuller reasons have had to be given and the task of judgment writing has become more burdensome. He then modified this figure downwards to reflect two factors in particular: first, that the hearing day often went short and the time liberated could be used for judgment writing; and second, that the comparator tax judges would in a complex case have to work in their own time in order to complete judgments. Having regard to these factors, he concluded “doing the best I can with this very limited information” that an average time would be between four and a half and five hours which equated to about two thirds of a day. He added at the end of his judgment that the parties could seek a review if they felt that he had gone “wildly wrong”.

The review application

[10]The MoJ took up the offer and sought a review essentially on the grounds that the judge had fixed too high a figure and that it was in the interests of justice for the ET to reconsider the rate of pay necessary to eliminate the less favourable treatment. The basis of the application was that the judge had not properly taken into account, or alternatively given appropriate weight to, a number of particular factors. The judge rejected this part of the application saying this in a judgment delivered on the 14 January 2015:
“The conclusion to which I came … is necessarily a rather rough and ready assessment of what the daily decision writing fee should be. It is a figure arrived at taking account of all the factors which Mr Bourne now says I have given insufficient weight to and giving them such weight as it felt appropriate to give. None are capable of accurate quantification. I have therefore already undertaken the exercise which Mr Bourne says I have not done, or rather have not done appropriately, and I am not persuaded that I have given these factors inadequate weight.”
[11]The MoJ also sought a review of the decision on the grounds that even if the daily rate was appropriate, it was over-compensating the claimants to allow them to have the same rate for each day of a multi-day case. The argument was advanced in the following way:
“Further, the Respondent asks the Tribunal to reconsider its finding that the “additional fee” is payable in respect of every Leasehold Valuation Tribunal sitting occasion when a full day’s sitting fee is payable. This would significantly over-compensate claimants in respect of multi-day Leasehold Valuation Tribunal hearings. This is demonstrated by the example of Mr Engel. Paragraph 39 of the reasons discusses Mr Engel spending 6.5 days to write up a 10-day hearing (probably including Chambers days). The Tribunal properly noted that it could not understand how the judgment took this length of time to write up and it found that the paradigm judge would take much less time. However, if Mr Engel received the “additional fee” for each of those 10 hearing days then he would receive 6 2/3 sitting day fees. This is more than the 6.5 days that he actually spent writing up the judgment and which was a disproportionate amount of time. For this reason, the Tribunal is invited to find that the “additional fee” is payable only in respect of the first day of a multi-day Leasehold Valuation Case and that a lower or tapering sum is payable for any further hearing day(s) and/or that there is a cap on the total fee to be paid for any one judgment.”
[12]In the preceding paragraph of the application it had also been submitted, although very much en passant, that no additional payment for judgment writing should be made for what were termed “Chambers days”, that is days when the three members of the tribunal meet for the purposes of deliberation.[13]The

judge was not willing to revisit the case for this reason either for the following reasons (para.7):

“I am next asked to reconsider my finding that the additional fee is payable in respect of every Leasehold Valuation Tribunal sitting occasion when a full day’s sitting fee is payable as this would significantly over compensate the claimants in respect of multiday Leasehold Valuation Tribunal claims. This is a point which could and should have been taken during the hearing and I heard no evidence specifically directed to it. As Mr Margo points out in his written submissions, the current pro rata system of discretionary fees for decision writing allows for half a day’s fee for each day of a five day hearing rather than a tapering arrangement. It is now too late for the respondent to raise this point and I decline to reconsider the Judgment in this respect.”
The judge did not in terms refer to the submission on chambers days, but then that issue had not been raised specifically with respect to multi-day cases.

The appeals to the Employment Appeal Tribunal

[14]So the MoJ was left with its appeal to the EAT on the quantification issues. It also appealed against the judge’s refusal to review. The basis of the quantification appeal was that the decision of the ET was perverse, both in fixing the appropriate payment at two thirds of the daily payment for each sitting day, and in any event in permitting that same rate to apply with respect to each day of multi-day cases. The arguments advanced essentially mirrored those which had been used when seeking the review.[15]The President of the EAT, Langstaff J, dismissed both appeals. As to the quantification argument, he dealt specifically with the two thirds per diem payment and it is noteworthy that in that context he specifically referred to the submission of the MoJ’s counsel, Mr Bourne QC, that it took no account of, or at least gave inadequate weight to, the need for a tapering effect for long judgments. Essentially, this aspect of the appeal was dismissed because the judge held that there was evidence to support the judge’s conclusion and it was not perverse. (There were a number of other issues before that court which are not the subject of appeal.) The President pointed out that there are often circumstances when a judge has to make a rough and ready assessment which will nonetheless be the best that can be done with the evidence available. As he put it (para. 30), the judge was “entitled to make a broad brush assessment without attempting an accuracy which might be spurious.” He observed that the claimants had sought a day’s judgment writing for each day of sitting but that had been rejected by the employment judge. The figure adopted was, in Langstaff P’s view, neither manifestly excessive nor manifestly too low.[16]Langstaff P then turned to consider the specific submission that the rate was in any event too high for long cases. In this context I would observe that, in my view, it can be fairly said that he had at least indirectly assessed the merits of this argument when considering whether the judge had reached a perverse conclusion when fixing the daily rate. As I have said it was there argued that the rate should be lower in part because it over-compensated for long cases. However, Langstaff P also addressed the multi-day point as a separate issue.[17]Mr Margo, counsel for the claimant Mrs Burton, submitted that the evidence overall entitled the judge to adopt a standard approach with respect to each day’s sitting, and he noted that “no witness had been asked to comment on whether different lengths of a multi-day hearing generated different amounts of decision writing time.”[18]It is true that Langstaff P did not directly address the question whether the judge’s failure to treat multi-day cases differently was perverse, although it is in my view a legitimate inference from the way that he dealt with the wider quantification argument that he would inevitably have dismissed this argument in the same way.[19]In the context of answering this question, Langstaff P considered whether EJ Macmillan had been entitled to refuse to review the multi-day issue for the reasons he gave. After setting out paragraph 7 of the second decision, reproduced in paragraph 13 above, Langstaff P held that the judge was indeed entitled to refuse a review on the grounds that the point had not been raised at the time and that it was now too late to advance it. This was a proper basis for refusing to reconsider the decision on this point.

Discussion

[20]Mr Bourne has advanced two arguments on the appeal, the second of which was barely prefigured in the written submissions. First, he repeated the quantification argument advanced below with respect to multi-day cases. He now accepts that it was open to the judge to fix the daily rate as he did but submits that the amount stipulated will inevitably over-compensate the claimants for longer cases unless there is tapering or some form of cap imposed to limit the amount recoverable. The failure to make any specific adjustment for long cases was, he submits, perverse. The second argument is that even if it was not perverse on the basis of the evidence before the employment judge, EJ Macmillan ought to have reviewed the matter once the potential unfairness had been drawn to his attention. Again, as he accepts, he has to satisfy the court that no reasonable tribunal judge, properly directing himself, could have refused the application for a review of the decision. That is an extremely high hurdle. I will deal with this latter ground first.

Refusal to review

[21]An employment tribunal has a power to review a decision “where it is necessary in the interests of justice”: see Rule 70 of the Tribunal Rules. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J, as he was, pointed out in Newcastle on Tyne City Council v Marsden [2010] ICR 743, para. 17 the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Iron sides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review. In my judgment, these principles are particularly relevant here.[22]Mr Bourne put forward a number of reasons why it ought to have been clear to the judge that a review should be undertaken. First, he says that it is self-evident that longer cases do not get commensurately more difficult depending upon the length of the hearing. The facts are likely to be more complex, but not necessarily the legal issues. Second, he submits that it is plainly the case that there should be no add on payment for Chambers days since that is in substance part of the judgment writing process. They do not generate further material for judgment writing; rather by identifying the relevant evidence and argument, they ought to limit it. Moreover, in the context of this particular jurisdiction he points out that historically a cap was imposed in this tribunal. Finally he relies upon the fact that the judge found that the claimant Mr Engel had taken a disproportionate amount of time in writing up one particular case, known as the Weekday Cross case, when a ten day hearing had resulted in a claim for six and a half days judgment writing. Logically this demonstrated that the figure must be too high since it would lead to Mr Engel recovering marginally even more than the allegedly disproportionate amount he had claimed.[23]I do not accept that these factors, even taken together, would compel the tribunal to review its decision. First, they do not in my view carry the weight which counsel seeks to place on them; they are not self-evidently pointing in the appellant’s favour. It is a matter of dispute, and probably wholly fact sensitive, whether the burden of writing a judgment is commensurate with the length of a hearing. The fact that a cap was placed on the amount recoverable under earlier rules is of very limited relevance now, and in any event it is not clear whether the cap was imposed on the grounds that any additional payment would be excessive or for other reasons. Moreover, the fact that EJ Macmillan considered that a wholly disproportionate amount of time had been spent on the Weekday Cross case, which took ten days, is of very limited relevance because it is clear, as Mr Bourne accepts, that the judge was not seeking to make any statement of a general nature that this would be a disproportionate time to spend judgment writing with respect to all ten day cases.[24]Quite apart from these considerations, in my view it is highly material, as EJ Macmillan thought, that this argument was not addressed before the judge. Nobody suggested that there should be tapering or a cap. If the point was an obvious one for the judge to consider, it must have been obvious for counsel to raise it at the material time. Given the observations of Mummery J in the Lindsay case, the refusal of the judge to reconsider the point in these circumstances was wholly apt. The principle that it will not in general be in the interests of justice to reopen a case on the basis that counsel had not raised a certain point should not be circumvented by suggesting that the point should have been taken by the judge of his or her own motion.[25]Moreover, although Mr Bourne denied that he was seeking to introduce fresh evidence, it seems to me that this would inevitably have been the outcome if the judge had acceded to the application for a review. For example, Mr Bourne submits that it is plain that it is wrong for Chambers days to be treated as hearing days since they do not add to the period needed to write the judgment, I see force in that submission taken on its own. But it is not clear from the evidence whether Judge McGrath, when she suggested that typically a judgment would take around five and a half hours to write following a day’s hearing, was intending to include Chambers days when making that assessment. Indeed, Mr Engel, who appeared in person before us, took us to some documents which suggested that she was envisaging that Chambers days should be taken into account. If that is so, she might have given a different answer if these days had been omitted from the assessment of hearing days. However, to allow a case to be reopened in order for further argument or cross examination would undermine the important principle of finality. Moreover, if a party wished to adduce more evidence, as again seems likely if the review application had been granted, that would conflict with the principle, recently affirmed by HH Judge Eady in the EAT in Outasight VB Ltd v Brown UKEAT/0253/14 (21 November 2014) that it will only be in the interests of justice to allow fresh evidence to be introduced on review if the well-known principles in Ladd v Marshall have been satisfied. The first of these is that the evidence could not have been obtained for the original hearing. Plainly that would not be the case here.[26]For all these reasons, therefore, in my view it is quite impossible to say that the judge erred in refusing to review his decision and there was no error by the EAT in upholding his ruling. It was entirely in line with principle to conclude that it was not in the interests of justice to do so. If the judge had erred, the way to put it right was to appeal.

The quantification argument

[27]I can deal with this briefly. A perversity argument can only succeed, as Mummery LJ pointed out in Yeboah v Crofton [2002] IRLR 634, para. 93 “where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.” In my judgment, essentially for the reasons I have already given when considering the review appeal, there was nothing wrong with the way the judge approached the evidence before him. It is unfortunate perhaps that certain matters were not clarified, such as whether Judge McGrath’s evidence that judgment writing would typically take five and a half hours per hearing day was intended to include Chambers days, and whether it was generally accepted that longer cases would not typically need commensurately longer judgment writing time. But it was for the parties to advance the evidence to support their case. The claimants submitted that the appropriate rate was a day’s writing day per hearing day (which did include Chambers days) but this did not find favour with the judge. It was not for them to submit that longer cases should be treated less favourably; if the MoJ wished to advance that submission, it had to adduce the necessary evidence to support it. In the absence of clear answers to these issues, the judge had to make do as best he could on the evidence he could accept. He understandably found it a very difficult task. I do not think it can conceivably be said that he reached a perverse conclusion in failing to treat long cases differently. I should add that this is particularly so given that there was evidence that cases over three days are very rare in any event, and it is not clear how many chambers days they will typically involve. It may well be that the amounts involved are too insignificant to justify an amendment to the two thirds rate which is itself a very rough and ready figure.[28]For these reasons I would dismiss the appeal.[29]I mention one further point. Mr Engel is extremely upset with the observations of EJ Macmillan to the effect that he was taking too long to write his judgments. The judge understandably had to engage with the question because the judgment writing in the Weekday Cross case in particular was relied upon to support the claimants’ case that the appropriate payment should be a day per day’s sitting. The MoJ said that the paradigm judge would not have taken so long and hence the judge had to assess whether this was right and he found that it was. I agree with the EAT that there was an evidential basis for this finding.[30]Mr Engel sought to take us through detailed submissions which, he says, demonstrate that the judge had reached an unjust conclusion and that he, Mr Engel, had acted conscientiously and had been justified in taking the time he did. We did not allow him to develop these arguments orally because they were not directly relevant to the appeal. As Mr Bourne pointed out, his argument was not premised on the basis that Mr Engel ought to have written the judgment in the Weekday Cross case more quickly; it was simply that this was the judge’s view and whether right or wrong it was thereafter illogical for the judge to fix the appropriate rate at a figure which would in fact have allowed Mr Engel to be paid more for that work. I have already explained why there is in my view no inherent illogicality in the judge’s analysis. This court is not in a position to assess how long that particular piece of work ought to have taken. In his written skeleton Mr Engel has made detailed argument as to why the judge did not fairly assess the time taken in this and indeed in another case. Suffice it to say that it suggests that other judges might not have thought it appropriate to draw the inferences which EJ Macmillan drew. Mr Engel can also point to the fact that the judge’s finding that two thirds of a day should be allocated for each day’s sitting itself lends support to his claim that he was acting as the paradigm reasonable judge would have done.[31]I agree.[32]I also agree.

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