The Ministry of Justice v Burton & Anor (Part Time Workers) [2015] UKEAT 0211_15_2711

EAT
The Ministry of Justice v Burton & Anor (Part Time Workers)
[2015] UKEAT 0211_15_2711 · 2015-11-27
[1]Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 provides, materially, as follows:
“(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker – (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if – (a) the treatment is on the ground that the worker is a part- time worker; and (b) the treatment is not justified on objective grounds. (3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.”
[2]Both Claimants were formerly fee paid part-time chairmen of the Residential Property Tribunal Service, which is now as part of the First-tier Tribunal (Property Chamber) known as the Residential Property Tribunal (“RPT”). Their cases are lead claims made under Regulation 5 by a group of first-tier tribunal judges in the same position. If a part-time worker is to establish a right to any remedy, the Regulations require a comparison to be made between that worker and a full-time worker. There is no comparable full-time judge of the RPT: salaried full-time judges of the RPT occupy more senior positions which are accepted not to be properly comparable. However, in Edge and Others v Ministry of Justice Employment Judge Macmillan held that full-time salaried judges of the Tax Chamber First-tier Tribunal (“Tax Judges”) were comparable. By a decision, reasons for which were delivered on 13 th November 2014, and later expanded upon in some respects when the Judge refused to reconsider his judgment for reasons delivered on 16 th January 2015, he held that the Claimants had been less favourably treated than Tax Judges in respect of the fees paid for decision writing in Leasehold Valuation Tribunal cases. He assessed that for each sitting occasion when a fee-paid Judge of the RPT sat to hear a substantive Leasehold Valuation Tribunal case the Judge should be paid an additional fee of two-thirds of the daily fee for writing up the judgment.[3]The question before me on this appeal is whether in so holding the Judge was in error of law. The Tribunal Decision[4]Individual cases vary in their complexity. Judges vary in the speed with which they can address the complexities of a case when writing a judgment. The difference may be all the greater between those who deal with tax cases and judges of the RPT (whom I shall call “Property Judges”), since tax cases may take a different length of time to resolve than do Leasehold Valuation Tribunal cases, and that which is required of a written judgment may not be entirely the same. Given the starting point that the positions of the salaried Tax Judge and the part-time Property Judge are nonetheless comparable, the Employment Judge had first to determine whether the Claimants had been treated less favourably than a full-time Tax Judge had been or would be. The approach adopted by him, with the approval of the Appellants before me (the Ministry of Justice: “MoJ”), was to require the Claimants to identify the less favourable treatment complained of, specify what was needed to prevent such less favourable treatment, explain why that would have the effect of eliminating the less favourable treatment and indicate the evidence which supported that contention.[5]Importantly,

the Judge said at paragraph 4:

“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 [ Counsel for the MoJ ] submitted, all a question of quantification.”
[6]The evidence which the Judge accepted was that full-time Tax Judges were nominally allocated between 1½ and 2 days for decision writing per day of hearing. They worked to some extent in their own time on both decisions and preparation, outside the conventional working day, at weekends and during the evening. By comparison, Property Judges were not paid a fee for judgment writing as a matter of entitlement, but only as the consequence of the exercise of discretion. Their claims for writing-up fees were made after the event. The discretionary scheme succeeded a scheme under which, from January 2002 – April 2006, a half day fee was awarded for each day of sitting up to a maximum of 2½ days, though there was a discretion to be exercised in very limited circumstances “to go up to 3 days or possibly more where the sitting had exceed 5 days” (sic) (paragraph 10). Since then, the approach had been more flexible. The Judge summed up his preliminary conclusions at paragraphs 20 and 21: by contrast with Tax Judges, Property Judges had no paid decision writing entitlement, but only the hope that discretion would be exercised in their favour upon application. It is clear that such evidence as he accepted was to the effect that in the absence of exceptional circumstances a Property Judge received at most half a day’s additional fees for each day sitting, and often less.[7]The Judge considered that the material available to show how the less favourable treatment which he had found to exist might be remedied was very sketchy, but he despaired of it becoming clearer if time were given to permit further evidence to be garnered. He concluded that his task was to assess how long it should take a Judge of reasonable competence, applying herself with appropriate diligence and being a reasonably competent typist, to produce a judgment of appropriate length and content in the supposedly average case: a person he called the “paradigm judge” (paragraph 28). The Claimants contended that a paradigm judge would take a day for each sitting day to produce a judgment in an average case. The Judge commented (paragraph 29) that although it was accepted between the parties that if the Judge rejected the contention that a day’s fee per sitting day was the appropriate measure of the time spent by a paradigm judge writing an average decision, he could reach his own alternative conclusion, nonetheless:
“The burden must still be on the Claimants to put before me sufficient evidence to enable me to say that if one day is not the answer to the question, then some other lesser, or possibly, greater time is. I cannot simply pluck a number out of thin air on a merely ‘felt fair’ basis. So if I reject their evidence as being unreliable and in consequence their primary contention fails there must still be some other evidence which enables me to form a view as to some alternative appropriate figure on the balance of probabilities.”

The Judge indeed rejected the evidence of the Claimants:

[8]Mrs Burton’s evidence was unreliable, not supported by any records, and much exaggerated; Mr Engel had self-evidently “taken far longer than was truly warranted” and therefore far longer than the paradigm judge would have required. He could “derive no assistance” from Mr. Engel’s evidence - in his case there was ample evidence from his decisions themselves (paragraph 38, 39), and in the Judge’s view “scarcely have documents spoken more eloquently.” He selected two particular examples. One related to the Weekday Cross Buildings in the Lace Market, Nottingham. There had been a hearing lasting 10 days covering a wide range of issues. Mr Engel subsequently claimed 6½ days’ fees for writing the decision. Yet the decision itself had been discussed by the whole panel before the Judge wrote up the conclusion which it had reached. The Employment Judge concluded (paragraph 41):
“I have to say with the greatest possible respect to Mr Engel that I simply cannot understand how this decision took him 6½ days to write……I am satisfied on the balance of probabilities that our paradigm judge would have taken much less time.”
[9]The second example was a claim by Mr Engel for 5 days’ writing time to record a decision reached following a 5½ day hearing in the “South City Court case”. Similar criticisms fell to be made.[10]Having rejected the evidence of both lead Claimants, though for different reasons, the Judge nonetheless came to the conclusion that “there is just about sufficient evidence. In particular the elements which I have to take into consideration are clear even though quantifying some of them may not be.”[11]He thought it was reliable to assume that(1) some sitting days ended early enough for some decision writing to be done: such writing-up was then covered by the daily sitting fee and required no remuneration;(2) the comparators (Tax Judges) did some decision writing in their own time: the Claimants could not be entitled to remuneration in respect of that;(3) perhaps as many as 20% of cases heard in the LVT were simple and straightforward and thus would require rather less than the average measure of time to write up, though there must, on the other hand, be cases which required more than the average time. He commented:
“that is ex hypothesi but I have heard no reliable evidence on what this might mean in terms of time, more importantly to what extent it counter-balances the time saved on similar cases.”
[12]To assess the average time, he noted evidence from Judge McGrath, President of the Residential Property Tribunal, that in her view it took 5½ hours per sitting day to write an average decision. The pro rata scheme operated in the predecessor of the RPT had adopted half a day. The discretionary scheme operated since looked not unlike its pro rata predecessor. At paragraph 47 he thought that a “rule of thumb” that half a day’s fee should be paid for each day of hearing, provided it appeared justified, was consistent with Judge McGrath’s evidence, since half a day is 3½ hours and he thought that a day’s sitting fee already included two hours (or possibly 2-3 hours) of decision writing time. Thus the schemes, first pro rata then discretionary, which had previously been adopted for rewarding writing time were “likely to have been based on an assumption that the time required to write a decision was about 5½ hours per day of sitting.”[13]Evidence had been given to the Tribunal by a Judge Robson that he thought it took a day to write up a day’s sitting. That would be about 7 hours. The judge noted this, but discounted it, thinking that:
“ the admittedly absolutely minute statistical sample of Mrs Burton’s decision writing fee claims which I have analysed….is entirely consistent with it taking about 5½ hours on average. Indeed, if anything it suggests that might be a little on the generous side.”
[14]At paragraphs 49 and 50

the Judge said:

“Mr Margo [ Counsel for Mrs Burton ] appears to be right that if the sitting fee is calculated on the basis of 1/220th of a Vice-President’s salary as claimed by the respondent, but also on the further basis of the fee paid judge’s day is 9 or possibly even 10 hours duration, the claimants may well have been underpaid throughout the time that this basis for calculating their fees was in place. The normal sitting day could be said to be between 9a.m. and 5p.m. which, with an hour for lunch, is 7 hours. The margin of underpayment could be substantial. I anticipate that the Respondent would not seek to contend that that is the case. 50. In my judgment the answer can only be this. Rather than the sitting fee being remuneration for 9 or even 10 hours’ work, it was remuneration for one day and if decision writing was done on another day no additional fee was payable. When the figure of 2-3 hours emerged that might not have been an unrealistic estimate of how much decision-writing was generated by a day’s sitting. In consequence no adjustment needs to be made to the 5½ hours to reflect a payment already included in the judge’s remuneration, there being no such payment.”
[15]The Judge then adjusted the 5½ hours to reflect the assumptions with which he had started – the frequency with which the sitting day went short, and the amount of their own time which Tax Judges spent in decision writing. Pulling the other way were those one day cases so complex that additional decision writing time was required.

The Judge concluded as follows:

[16]- “52. Doing the best I can with this very limited information, in my judgement the measure of paid time which is required to eliminate the less favourable treatment of the claimants when compared with their full-time tax judges is between 4½ and 5 hours per sitting day which equates to ⅔ or 66.66% of the daily sitting fee.” He invited either party who thought that he had got the figures “wildly wrong” to apply for reconsideration. The Application for Reconsideration[17]The MoJ asked the Tribunal to reconsider its decision that the additional fee for a Leasehold Valuation Tribunal case should be set at ⅔ of the daily sitting fee. It argued that the reduction from 5½ hours was insufficient because insufficient weight had been given to short days, variable complexity, and Tax Judges’ time spent writing in evenings and weekends: complex cases were in general compensated because they took longer than one day, therefore attracting a further writing fee. Though some hearings went short, there was no evidence that hearings ever went beyond 5pm. The Tribunal had not sufficiently explained why it had not deducted more from the 5½ hour starting point it had finally reached.[18]Rejecting the application for reconsideration for reasons delivered on 16 th January 2015, the Judge said he had not discounted that there was no evidence that hearings ever went beyond 5pm: he had taken that factor and others into account. He observed:
“To say that I only deducted 40 minutes as a result of those factors is to wholly misunderstand the exercise that I found myself compelled to undertake. I did not deduct any specific unit of time from any other specific unit of time. In my reserved judgment I criticised the evidence on which I was being asked to reach my decision as being largely anecdotal. In fact, I went so far as to say that I was so concerned by its adequacy that I doubted for a time whether it was possible for me to reach any conclusion that I had even considered inviting the parties to call more evidence. I eventually concluded that I had just about enough evidence to enable me to reach a reasonably sensible decision, that conclusion being driven to a large extent by a very serious doubt that any more evidence could have been made available. The conclusion to which I came to in paragraph 52 is therefore necessarily a rather rough and ready assessment of what the daily decision writing fee should be. It is a figure arrived at by taking into account all of the factors which Mr Bourne now submits I have given insufficient weight to and giving to them such weight as it felt appropriate to give. None are (sic) capable of accurate quantification I have therefore already undertaken the exercise which Mr Bourne insists I have not done, or rather have not done appropriately, and I am not persuaded that I have given those factors inadequate weight.”
The Appeal[19]The first Ground of appeal was that the Judge erred in finding that the Claimants were less favourably treated than Tax Judges in respect of fees paid for decision writing. The second was that he erred in quantifying the less favourable treatment. Third, he erred by holding the additional fee was payable in respect of every Leasehold Valuation Tribunal sitting for which a full day’s sitting fee was payable, since this would over-compensate Claimants for hearings which lasted several days. The Week Day Cross case demonstrated this. The ten days it took to hear would on the Judge’s formula produce 6⅔ days’ worth of sitting fees. Mr Engel had claimed less, at 6½ days, but the Judge had rejected 6½ days as simply far too long.[20]The MoJ appealed separately against the reconsideration decision of January, but this appeal raises no point which does not arise in respect of the appeal against the November decision.[21]Mr Engel cross-appealed the Judge’s rejection in part of his reconsideration judgment of his argument that a half day’s sitting should attract two-thirds of a half day’s fee for writing-up. The judge rejected this on the basis that the point was an entirely new one, but this (claimed Mr Engel) was erroneous. He cross-appealed the decision that Rent Assessment cases did not attract a writing-up fee (paragraph 5 of the reconsideration judgment), that sitting days which were not “substantive hearing days” did not attract a writing-up fee, and against the Judge’s decision to list the issue of mitigation of loss for a further hearing, upon the Ground that it was “crystal clear that I did not fail to mitigate my loss”.[22]In his skeleton argument, Mr Engel went further, to argue that on the evidence before the Judge he should have found that a day’s sitting required on average a day’s writing-up, and if necessary he applied for permission to amend his cross-appeal to claim it. He complained he had not been given a fair trial because in the course of it the Judge had made up his mind before hearing the evidence, and had refused to allow Mr Engel to explain the long list of cases put to him including Weekday Cross . He expressed concern about having to conduct the remedy hearing before a Judge whose treatment of him, he felt, had been so unfair. The Arguments[23]As to the first Ground of appeal, Mr Bourne QC argued that it was not open to the Judge to find that the Claimants had established they were treated less favourably than Tax Judges. The burden of proof lay on them as the judgment acknowledged. To establish less favourable treatment they would need to identify work which they did without an additional fee which the comparators did as part of their usual salary, and that was not established, given the Judge’s observations about the extreme difficulty of the comparison and the unreliability of both Mrs Burton and Mr Engel as witnesses. If that were not so, there was nonetheless no sufficient reasoning to justify the rejection of an argument Mr Bourne had advanced before the Tribunal that any less favourable treatment in respect of writing-up was offset by other terms which were more favourable, such that the treatment overall was no less favourable.[24]Mr Margo for Mrs Burton, whose submissions were echoed in this respect by Mr Engel correctly noted that the first argument was a perversity challenge, but countered that there was ample evidence, let alone enough to enable the judge to reach a conclusion of fact. Secondly, and in any event, the fact that Tax Judges were entitled to days allocated for decision writing whereas the Claimants obtained allowance only as a matter of discretion, was a clear difference of treatment. There was no perversity in the conclusion that any less favourable treatment in respect of decision writing was not offset by other more favourable terms. The term which had been relied on related to cancellation fees (paragraph 25 of the judgment). But in Matthews v Kent and Medway Towns Fire Authority [2006] UKHL 8 [2006] ICR 365 , Baroness Hale had made it plain that any exceptions to an analysis term by term would be limited to cases in which it could be said that one less favourable term was “so well balanced by a more favourable one that it could not be said that the part-timers were treated less favourably overall” (paragraph 48-9). It could not be said here that the terms were “so well balanced” and the Tribunal had not found that they were. Conclusions on Ground 1[25]In my view, the Judge was clearly entitled to come to the conclusion he expressed at paragraph 20 and the two paragraphs that followed, each numbered 21. It is sufficient to establish less favourable treatment to show that the Claimants would only be paid for writing-up time as a matter of discretion, whereas Tax Judges had it as a matter of entitlement.[26]The decision in respect of whether cancellation fees were such as to eliminate the less favourable treatment complained of was essentially a matter of fact for the Tribunal Judge. He applied the correct legal principle, addressing it in the light of Baroness Hale’s words. His decision could not be said to be perverse. The Appeal on Ground 1 must be dismissed. Argument on Ground 2[27]The second Ground was one of sufficiency of evidence for the findings made. Here Mr Bourne QC did not directly challenge the entitlement of the Judge to accept the evidence of Ms McGrath as a starting point to the effect that writing-up one day’s work would take some 5½ hours, though he reminded me that the Judge thought that might be “a little on the generous side” for the average case. He accepted, too, that the Judge directed himself properly that that figure had to be reduced to take into account the particular factors he mentioned at paragraph 51 – the frequency with which a sitting day went short, and the amount of time Tax Judges regularly spent decision writing which was “their own time”. He argued nonetheless that the decision left a number of questions unanswered. Thus, the Judge did not make individual findings of fact about the extent to which each factor might cause a reduction from the starting point. The explanation given at paragraph 4 of the reconsideration decision showed that the Judge had not made his best estimate based on the evidence available: the only possible finding consistent with the evidence was that a more substantial reduction than one third of a day was needed, taking into account the facts that(i) all Tax Judges worked in their own time to some extent on their decisions and preparations;(ii) perhaps 20% of Leasehold Valuation Tribunal cases were straightforward, requiring less than average writing-up time;(iii) as a matter of common sense, a number of more complex Leasehold Valuation Tribunal cases would be multi-day hearings or have Chamber days: to compensate Judges in the position of the Claimant to the tune of two-thirds of a day’s fee for each of these days would overcompensate – it would take no account of the “tapering” effect to be expected where long cases were followed by a judgment;(iv) some hearings went short.[28]Mr Bourne QC argued that it was not sufficient to say that the Judge had in mind those factors without indicating more clearly the extent to which each had had an effect: if they had properly been taken into account, the deduction would necessarily have been substantially higher than it was. Two-thirds of a day was just 50 minutes less than the 5½ hours which was the Judge’s starting point.[29]Mr Margo responds that the assessment which the Judge purported to make was necessarily rough and ready, a broad judicial assessment rather than a precise mathematical computation. It had not been established what the average time was for a Tax Judge to deal with writing-up an average tax case, as to which it would always be difficult to reach figures. Nonetheless, a difference in treatment had clearly been established – even if it was difficult to put a figure upon its quantification with exactitude. Conclusions on Ground 2[30]In my view, the critical question is whether the Tribunal was entitled in allowing for the factors it had identified to make a broad brush assessment, without attempting an accuracy which might be spurious.[31]There are many occasions when courts assess values in figures from a body of evidence before them, much of which is not specific as to precise addition or subtraction of numerical values, though the evidence may call for an adjustment up or down to be made to primary figures, and although it is plain within what range the figures must come. A few examples may suffice. The assessment of the speed of a motor vehicle in a road traffic case may be established as beyond the applicable speed limit by a mixture of evidence which lacks precision – witnesses’ impressions of the speed, which may vary; the engine noise of the vehicle, as reported by observers; whether there was a squeal of tyres or brakes; the fact that the driver of the car said to be speeding lost control, and the nature of that loss of control - which would be less likely if observing the limit; any comments made immediately afterwards by those concerned, and the extent and nature of damage caused both to the vehicle and anything or person with which or whom it came into contact. There may also be evidence of skid marks which may provide a range of speeds, but hardly ever a precise figure which could be relied upon if exact point precision were needed.[32]Similarly, the assessment of the age of a person will necessarily be impressionistic, though broad parameters (child, young person, early middle age, elderly) may be easy to agree.[33]More persuasive still are those cases in which it is recognised there is little evidence, but a Judge must do his best. In cases which have dealt with the loss of earning capacity on the open labour market as a consequence of injury, the courts have long recognised that precise figures may be impossible to state with any certainty: but a judge is nonetheless obliged to make an award if it appears from the primary evidence that there is such a loss, even if its quantification is imprecise. A recent example in the analogous field of the assessment of loss of earnings is given by Griffin v Plymouth Hospital NHS Trust [2014] EWCA Civil 1240, IRLR 962. At paragraph 9 Lord Justice Underhill considered a Tribunal’s finding that the Claimant was “likely to obtain suitable alternative employment of 25 hours per week in a year’s time” and awarded damages on that basis. He commented:- “At the risk of spelling out the obvious, that is not a finding that it was more probable than not that the Claimant would find a job after precisely one year. Rather, it is an estimate made on the assumption that the Claimant continued to make reasonable efforts to mitigate her loss of the mid point of the probabilities. In Wardle v Credit Agricole Corporate and Investment Bank [2011] IRLR 604 , Elias LJ said:
“...In the normal case, if a Tribunal assesses that the employee is likely to get an equivalent job by a specific date, that would encompass the possibility that he might be lucky and secure the job earlier, in which case he would receive more in compensation than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss. The Tribunal’s best estimate ought in principle to provide the appropriate compensation. The various outcomes are factored into the conclusion. In practice the speculative nature of the exercise means that the Tribunal’s prediction will rarely be accurate. But it is the best solution which the law seeking finality at the point where the court awards compensation, can provide.”
It is, however, convenient to refer to it, as the Tribunal did, as the date on which it was likely that she would obtain employment.”[34]I do not, therefore, think that the Judge was being heterodox in seeking to make a broad brush assessment. Nor do I understand that the MoJ pointed to any particular precise figure which it said was justified upon the evidence. By contrast, the Claimants argued that the appropriate time was one day. They relied upon the evidence of Judge Robson for this effect. However, that was considered, and rejected as failing to provide a fair assessment of the average which the Judge set out to establish. In his comments in the reconsideration decision the Judge was repeating that he had made allowance for the factors he had identified. These had, plainly, reduced the figure which he started with, and which is not seriously criticised before me as an appropriate starting point. The test on appeal, in such circumstances, is whether the figure that results on the assessment is manifestly excessive or manifestly too low, given the evidence before the judge below. So far as the broad run of cases which the Judge was considering is concerned, I cannot say that it was either. His assessment must stand. Ground 3[35]The third Ground of appeal was that which particularly attracted my attention as arguable when I considered that permission should be given for a full appeal in this case. This Ground is limited to the specific case of multi-day hearings. Mr Bourne QC argues that from the evidence before the Judge it is inevitable that the additional fee of two-thirds of a day would significantly overcompensate claimants in respect of multi-day Leasehold Valuation Tribunal hearings, if paid in respect of every sitting occasion when a full day’s sitting fee was payable. Mr Bourne QC invited me to conclude that the application of the additional per diem fee in cases where the hearing exceeded one day was perverse, and to remit the issue to the Judge for conclusion.

The Judge dealt with the point at paragraph 7 of his reconsideration judgment:

“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 multi-day Leasehold Valuation Tribunal claims. This is a point which could and should have been taken during the hearing. 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 5 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.”
[37]It follows that no decision was made specifically upon the merits of this argument.[38]Mr Margo accepted that if the Employment Tribunal’s findings in respect of the Weekday Cross case were taken in isolation then they would not support the finding that the difference in treatment between Judges in the position of the Claimants and Tax Judges were such that the former should be paid two-thirds of a daily sitting fee for each Leasehold Valuation Tribunal hearing day during which they had sat, including every day of any multiple day hearing. He contended however that the evidence which had been given permitted the conclusions which the Judge had reached, and that there was no, or alternatively very little, evidential basis upon which to support a conclusion that a tapering payment was appropriate. No witness had been asked to comment whether different lengths of a multi-day hearing generated different amounts of decision writing time.[39]Mr Engel complained that the only realistic assessment that a Judge could make was to allocate one day’s writing for one day’s hearing. The Judge had given no proper reason to reject the evidence of Judge Robson. He felt strongly that he had been unfairly criticised for the time he took to write the Weekday Cross decision. The reasons he gave were that he was the only person in the Midlands region who could deal with the points raised by the case – and indeed the Upper Tribunal had subsequently criticised him for not giving reasons on certain of them. This hardly suggests that the judgment was “too long”. It was a document heavy case: he had spent days and nights working away on the documents, and it was extremely upsetting to be castigated as he had been. The average judge, he asserted, would take no less time. In essence, he was submitting to me that the length of time it takes to write a judgment cannot simply be deduced from the length of the judgment when it is finally delivered.[40]In my view, he was making a point which, viewed generally, has much to commend it: the simplicity of many judgments may well be the product of much greater time, and effort than a far lengthier product. It is recognised there is often truth in the apology made by a Judge in respect of an unduly long judgment that he regretted that there was insufficient time to make it shorter. Nonetheless, however valid these points may be as matters of general observation, they do not reveal an error of law in the Judge’s approach. He was concerned with whether he could rely upon the evidence of Mr Engel as to the length of time it took for the paradigm judge to write a judgment. The point was made by the MoJ that Mr Engel took far longer than such a paradigm judge would be expected to. The Judge accepted this, and had evidence on which to base his conclusion. Accordingly, to adopt the time which a Judge such as Mr Engel took to write a judgment as the standard by which payment should be made would be to adopt a figure which overcompensated most Judges even if it was faithful to the time that Mr Engel himself took. These were matters of evidence and decision which the Judge was in the best place to evaluate, having heard the witnesses, and having examined the documentation for himself. I see nothing in the points which he made in respect of the Weekday Cross judgment which shows an approach which was impermissible in law.[41]It follows from my rejection of this point by Mr Engel that I accept that, taken on its own, the Weekday Cross decision would be inconsistent with compensation at two-thirds of a day’s fee for each day of a hearing which extended for several days.[42]The Judge’s rejection of Mr Bourne’s point was not a decision on its merits, as to which this view of the Weekday Cross case would be relevant. It was simply that the matter had not been argued, and it was now too late. It seems to me that this was a proper basis upon which to decline to exercise his discretion to permit reconsideration. I cannot say that he is wrong in law to do so, for there is nothing to suggest he exercised this discretion on any wrong basis. He could not be accused of an error of law in failing to deal with a point which was not raised before him at the first hearing; and he was entitled to refuse to reconsider his earlier decision on the basis he adopted at the second. If it be argued that he should have taken into account the lead case nature of the litigation, the answer might be that rule 36 of the Employment Tribunal Rules makes provision for that (and in particular rule 36(3), which, subject to extension of time may yet be open to the MoJ to explore at least in cases other than those of Mrs Burton and Mr Engel) and that since it was already catered for by rule, the judge was not obliged to exercise his discretion any differently for this reason.[43]In conclusion, therefore, I dismiss this Ground and with it, the appeal. The Cross-Appeal[44]I have already summarised the Grounds of cross-appeal at paragraph 21 above. I now consider them in greater detail.[45]Mr Engel had submitted that he should be paid one day’s writing-up fee for each sitting day and a half day’s writing-up fee for each half sitting day. His first Ground of cross-appeal was that this second submission should not have been rejected.

The Judge was in error in this respect:

[46]Mr Engel’s original particulars of claim sought a pro-rata system “where each day’s sitting attracts another full day for writing-up… and each half day’s sitting attracts another half day for writing-up…” In his witness statement he had said “for each half-sitting day (including short half-days) I spend more than 3.5 hours writing-up…”.[47]It is thus common Ground between the MoJ and Mr Engel that the Judge refused to reconsider his decision on a mistaken basis.[48]Mr Bourne QC however contends in his skeleton argument that on the evidence before the Tribunal it was not open to the Judge to find that there was less favourable treatment in relation to writing-up fees for a half day hearing. To make a bald assertion in a witness statement as Mr. Engel had done was not sufficient.[49]By Ground 2, Mr Engel cross-appealed against the Judge’s decision that he was not treated less favourably than a full-time salaried Tax Judge in respect of writing-up fees for rent assessment hearings. The Judge said, at paragraph 5 of his reconsideration judgment:
“[The MoJ] invites me to clarify a number of issues. The first is that the finding of less favourable treatment is limited to Leasehold Valuation Tribunal cases only and it excludes rent assessment cases. I do not accept that any clarification is needed… it is clear from reading paragraphs 1 and 2 of the judgment together that it applies only to Leasehold Valuation Tribunal cases, but it is also clear from paragraph 1 of the Reasons that that is the issue in the case. There never was a claim that decision writing fee should apply to rent assessment cases”
. The MoJ acknowledges that this, too, was an error by the Judge since Mr Engel’s claim in respect of writing-up fees was expressed in general terms, and was not limited to Leasehold Valuation Tribunal cases.[50]The MoJ nonetheless opposed the appeal, since the Judge had also asked Mr Engel during the course of the hearing whether he was asking for a writing-up fee for a rent case where no reasons were given. The MoJ pointed to the fact that Mr Engel replied that he was, although he accepted there would nowadays be very few such cases; that there was a discretionary fees system for rent assessment cases, which applied because there may be 4 or 5 rent cases dealt with in a day, but in only one of them might reasons be sought. Full reasons were rarely asked for. The MoJ contends that therefore a discretionary system was appropriate. On analysis, other than Mr Engel’s dissatisfaction there was no evidence of a failure to pay fees in rent cases which were as favourable as the remuneration of the Tax Judges.[51]By Ground 3, Mr Engel sought to cross-appeal the decision that he was not treated less favourably than a full-time salaried Tax Judge in respect of writing-up fees for sittings other than substantive hearing days (for instance, for case management hearings and the like). The Judge at paragraph 6 of the reconsideration judgment said “there was never a contention by either Mr Engel or by Mr Margo on behalf of Mrs Burton that [a writing-up fee] should apply to any other occasion”. This, again, was not correct: Mr Engel in his particulars of claim had defined writing-up as relating to “reasons, directions, responses to applications for permission to appeal, reviews, corrections, drafting replies to queries, telephone conversations, emails and all other work carried out outside sitting times – other than preparation”. Mr Bourne QC argued however that there was no evidence that a non-substantive hearing day gave rise to unpaid writing-up requirements.[52]By Ground 4 of the cross-appeal, Mr Engel disputed the Judge’s case management decision to list the question whether he had mitigated his loss as one of the issues to be determined at a hearing in respect of remedy for the breach of the Part-Time Workers’ Regulations which he had found. Though this might appear to be a normal case-management decision, Mr. Engel said that the Judge had commented at the start of the hearing that no one could accuse him, Mr Engel, of having failed to mitigate his loss. Having thus indicated a concluded view on the matter, the Judge should not have exposed him to the risk that a different (and it would follow adverse) decision might be made at a further hearing.[53]Mr Bourne QC argues that this comment was not repeated in the November judgment and did not amount to a finding of fact by the Judge. Mitigation was plainly an issue in respect of other property judges. The cases are test cases where such issues could properly be determined. If Mr Engel personally could not be accused of a failure to mitigate this did not mean to say that the issue should not be considered at a further hearing. Consideration[54]The request for reconsideration was made by the MoJ. In the course of it, the Judge dealt with a number of discrete issues, to “clarify” the meaning of the earlier judgment. In dealing with the question whether the judgment was limited to Leasehold Valuation Tribunal cases only and excluded Rent Assessment cases, the Judge was in error in rejecting the argument that it did, or should, include rent assessment cases, on the basis that this was never contended for by Mr Engel. It had been. Similarly, Mr Engel had argued for the payment of writing-up fees even though the hearing was not a substantive hearing. The Judge was in error there too in saying he had not. Further, when he rejected the “half-day” argument he again did so on the false basis it had never been made.[55]Although I have considerable sympathy with Mr Bourne’s arguments on the second and third Grounds of cross-appeal to the effect that the evidence as reflected in the judgment would not justify the conclusion which Mr Engel seeks, I am satisfied that there has been an error of approach by the Judge in respect of those as well as on the first Ground. That being the case, the appeal must be allowed unless I am satisfied that the decision the judge reached is plainly and obviously right in any event. I am not: in particular, I did not hear the whole evidence, and a decision whether to reconsider an earlier judgment is in particular a reflection on that evidence and whether it justified the conclusions actually reached. As to the “half day” issue, it might be thought implicit in the “two-thirds of a day writing-up fee for a one day sitting” approach that half a day’s sitting would attract a third of a sitting fee. To that extent, therefore, I have more sympathy with Mr Engel’s arguments of substance on the first Ground: and as to his arguments of law, I am satisfied that they, too, require me to allow me his appeal in this respect.[56]However, I do not accept that Mr Engel’s cross- appeal in respect of mitigation is borne out. The Judge made no findings which precluded him making the case management order he did. Such an order is a matter of discretion, and does not finally resolve an issue. Remedy had still to be determined. At the time that the Judge made the comment, he would not, in any event, have been directing his mind to the entirety of the evidence which might be put before him as if he were making a focussed decision as to mitigation. There is no basis for showing that he exercised his discretion to order that the issue of mitigation be listed at a later hearing on a basis which was wrong in law. It was not precluded by any form of issue estoppel. Accordingly, the cross-appeal on Ground 4 must be rejected. Disposal[57]Mr Engel argues that the EAT should substitute its own decision for that of the Judge, ordering the contrary to that which the Judge decided on Grounds 1, 2 and 3. On precisely the same Grounds as those on which I refuse to rule against the appeal – that it is essentially a matter of fact for the fact finding tribunal which has heard the evidence – I reject it: I do not accept that I am in possession of all the facts which would enable me to make such a ruling.[58]A consequence therefore is that the decisions as to whether a half day’s sitting attracts a half day’s fee, whether Rent Assessment cases as well as Leasehold Valuation Tribunal cases are covered in the writing-up fee, and whether a writing-up fee is payable in respect of days of sitting in respect of which no substantive written judgment is made, must be remitted for further determination. These are all issues which arise in respect of whether to reconsider the judgment of November. They are thus dependent in large part upon the evidence and submissions made to the Judge on that occasion, in the light of the documents which the Judge had before him. There is thus a strong practical imperative that the matter should be remitted to the same Tribunal.[59]Mr Engel is reluctant that this should happen, because of the way in which he feels his case was treated by the Judge. He complains the judge did not provide a fair trial, in particular in respect of the Weekday Cross case. In his comments on the Respondent’s application for reconsideration following the judgment of 13 November 2014 he submitted that the Judge had permitted Mr Bourne QC to put to the Claimant a long list of cases in cross-examination in which his claims for fees for writing-up had been described by Vice-Presidents and Deputy Regional Judges as “disproportionate”, but had then refused to allow him, Mr Engel, to go through the cases individually to explain his side of the matter; that he intervened in the cross-examination of Mr Engel in ways hostile to him, and had intervened in his own cross-examination of Judge McGrath in a way which again was unhelpful to him, Mr Engel.[60]The cross-appeal does not itself rely upon any allegation of bias or apparent bias. Mr. Engel did, however, raise the question of whether he would receive a fair trial from an impartial tribunal if the case were remitted to Judge Macmillan: he was particularly concerned not just about the behaviour described in the preceding paragraph, but about remarks made by the Judge in respect of his complaint that he was entitled to be remunerated in respect of sitting fees which would have been payable to him if the distribution of work among the lawyer chairs of the London panel of the former Residential Property Tribunal Service had been fair (a complaint which he raised in case 1313664/2011, heard by Judge Macmillan, and in which judgment was given on 26 th February 2015). In his judgement the Judge had observed (paragraph 37) that Mr Engel had been “milking the system for all he could get out of it”.[61]In a separate decision ( Thompson, Barran and Burton v MoJ , case No. 2204105/2013) the same Judge had dismissed complaints that the less favourable remuneration received by Mrs Burton compared to that paid to her full-time comparator was related to her status as a part-time office holder. Mr Engel’s case had been stayed behind hers, under the lead case procedure provided for by Rule 36 of the Employment Tribunal Rules 2013. Mr Engel applied under Rule 36(3) for an order that the decision in Mrs Burton’s case did not apply to and was not binding upon him. He argued that the Judge should not deal with the application because Mr Engel had earlier made a complaint of misconduct against him arising out of his conduct of an earlier hearing, and because of certain findings of fact which Mr Engel contended were libellous. Judge Macmillan had responded (paragraph 2 of his judgment and reasons of the 26 th June 2015) that:
“however, as I am the lead judge for the whole of the judicial pension scheme litigation as well as being the Judge whose decision is in issue in this application in my view it would be inappropriate for any other Judge to deal with his application.”
This response did not engage at all with the complaints which Mr Engel was making and whether or not they might be justified: it did not say whether he accepted or rejected them. It had no regard to fairness, but merely to what the judge thought might be convenient. I do not think it was adequate. If he had been unreasonably unfair to Mr. Engel, he should have recused himself. He did not say whether he accepted he had been.[62]I have considered carefully whether in the light of these last matters there is reason to think that the well informed, impartial observer would conclude that there was a real risk that the Judge might be biased against Mr Engel. In the end what has persuaded me, after some reflection, that the matters should be remitted to the same Judge for hearing is that the issues for him to determine at the reconsideration application arise out of the evidence which was given before the Judge, by witnesses whom he saw and heard; the professionalism of the Judge should be such that, if he is reminded that issues were before him which he had erroneously dismissed in the reconsideration decision as not having been at issue, he will deal with them fairly; I do not see that any issue of the credibility as such of Mr. Engel arises; the integrity of Mr Engel has not been challenged on the appeal before me; and he himself fell shy of appealing against the decision upon the basis that the Judge appeared biased against him. Convenience, strongly to be served by this decision, must (I acknowledge) play second fiddle to there being a plainly impartial tribunal (see the remarks of Mummery LJ in AWG Group Ltd and Another v Morrison [2006] 1WLR163 at paragraph 6), and accordingly if I had thought in the circumstances that, taken in context, the remarks of the Judge, coupled with his failures to recognise the point being made to him by Mr Engel in three separate respects, and his rejection of an application for recusal on inadequate Grounds, gave an appearance of bias, this would not have persuaded me to remit to the same Judge. They do not, however, go that far.[63]Accordingly, the cross-appeal is allowed as to the first 3 Grounds and dismissed upon the fourth, with the consequence that the matters which the Judge thought were not in issue before him may be argued out fully on the basis of the evidence which was before the Tribunal, to see whether in the light of the merits of those arguments, which he has yet to consider fully, the Judge holds by the “clarification” he made as part of the reconsideration judgment.[64]Accordingly, the appeal is dismissed, and it follows the appeal by the MoJ against the reconsideration judgment is dismissed as well; the cross-appeal succeeds upon the first 3 Grounds and the matter will be remitted to the same Judge for further hearing.