Access to justice, right of

2017 SCMR 1887 SUPREME-COURT-OF-UK Judicial Precedent

Effectiveness, principle ofScopeEffective judicial protection, principle ofScopeImposition of fees for access to (employment) tribunals and appeal tribunal

Whether such fees breached 'principle of effectiveness' and the 'principle of effective judicial protection' (recognized under European Union law)

Prior to the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 ("the Fees Order"), a claimant could bring and pursue proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying any fees

After the 'Fees Order' came into force , claims and appeals in the tribunals and appellate tribunal could only be commenced and continued on payment of fees, except where an individual applied and qualified for a remission; held, that 'principle of effectiveness' and the 'principle of effective judicial protection' were recognized as general principles (of European Union) law

Proper administration of justice might justify imposition of a financial restriction, such as payment of fees, on access to a remedy, however, the restriction had to retain a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved

Proportionality required the fees charged to be proportionate in amount to the sums being claimed in the proceedings

Ability of a person to pay fees was not determinative of their proportionality: it was merely one among a number of relevant factors

Amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the phase of the proceedings at which that restriction had been imposed, were factors which were material in determining whether or not a person enjoyed the right of access to a court

Financial restrictions on access to a court which were unrelated to the merits of a claim or its prospects of success should be subject to particularly rigorous scrutiny by the courts

In relation to the phase of the proceedings at which the restriction had been imposed, the court ought to regard it as significant if non-payment of a fee may result in a claim's never being examined on its merits

Since the fees imposed under the 'Fees Order' were in practice unaffordable by some people and were so high as to prevent persons who could afford them from pursuing small or non-monetary claims, the 'Fees Order' imposed limitations on the exercise of (European Union) rights which were disproportionate and therefore unlawful under the (European Union) law

'Fees Order' was also unlawful because it contravened the (European Union) law guarantee of an effective remedy before a tribunal; it imposed disproportionate limitations on the enforcement of (European Union) employment rights

Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 was unlawful under the (European Union) law because it prevented access to justice

Supreme Court (UK) declared the Employment Tribunals and the Employment Appeal Tribunal Fees Order, 2013 to be unlawful ab initio and quashed the same.

2017 SCMR 1887 SUPREME-COURT-OF-UK Judicial Precedent

ScopeProceedings before tribunalsFees, payment ofImposition of fees for access to (employment) tribunals and appeal tribunalWhether such fees breached (common law) right of access to justice

Prior to the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 ("the Fees Order"), a claimant could bring and pursue proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying any fees

After the 'Fees Order' came into force, claims and appeals in the tribunals and appellate tribunal could only be commenced and continued on payment of fees, except where an individual applied and qualified for a remission

Objectives of the 'Fees Order' were to transfer the cost burden from taxpayers to users of the tribunals; to deter unmeritorious claims, and to encourage earlier settlement

Appellant-trade union sought judicial review of the decision to introduce fees, on the grounds that making of the 'Fees Order' was not a lawful exercise because the prescribed fees interfered unjustifiably with the right of access to justice (under common law), and frustrated the operation of Parliamentary legislation granting employment rights

High Court and Court of Appeal dismissed the trade union's claim; held, that the constitutional right of access to justice was inherent in the rule of law and ensured that rights created by Parliament and interpreted by courts and tribunals were applied and enforced

Tribunals were not merely the providers of a service which was only of value to users who brought claims before them

Right of access to justice was to be understood in a broader social context as establishing principles of general importance and resolving questions of genuine uncertainty in interpreting legislation

Value to society of such access extended to the knowledge that rights would be enforced and that remedies existed where obligations were not met

In particular, the possibility of claims being brought by employees whose rights were infringed had to exist if employment relationships were to be based on respect for such rights

Furthermore negotiation and mediation could only work fairly in the context of the awareness of those involved that a fair and just system of adjudication was available

Right of access to justice, administered promptly and fairly, had long been recognised and could only be curtailed by clear and express statutory words

Any hindrance or impediment by the executive in such regard required clear Parliamentary authorisation and a statutory power authorising any intrusion was to be interpreted as doing so only to the extent reasonably necessary to fulfil the particular objective in question

Question as to whether any fees effectively prevented access to justice must be decided according to the likely impact of the fees on behaviour in the real world

Fees must be affordable not in a theoretical sense, but in the sense that they could reasonably be afforded