Archer v Employment Tribunal & Ors

Judicial review is not a substitute for a statutory appeal or an avenue for challenging decisions where the statutory route governs. The Court of Appeal could not grant a stay of execution of Employment Tribunal orders when the available challenge was an appeal to the Employment Appeal Tribunal, particularly where no such appeal had been brought. Nor could judicial review be used to quash an order transferring a matter to the Supreme Court Costs Office or to challenge costs allowed by that office. An order permitting an interested party to make representations at a permission hearing disclosed no basis for quashing, and participation could not affect an application with no prospect of success. The court confined itself to these procedural issues and made no findings on the underlying employment or civil claims.

This was an application for permission to appeal against Mr Justice Maurice Kay’s refusal on 19 July 2001 to grant permission to apply for judicial review. The applicant sought stays of Employment Tribunal orders dated 26/27 February and 14 May 2001, and the quashing of orders made by the Mayor’s and City of London Court, the Administrative Court and the Supreme Court Costs Office.

The Employment Tribunal had struck out the originating application and refused a review. The applicant had not appealed either decision to the Employment Appeal Tribunal. The central issue was whether the proposed judicial review proceedings, or the Court of Appeal’s jurisdiction on this application, could provide the relief sought.

1. Application refused. The Court of Appeal agreed with Mr Justice Maurice Kay that the proposed judicial review application had no prospect of success.
2. The court had no power to grant a stay of execution of the Employment Tribunal’s orders. The originating application had been struck out on 26/27 February 2001 and the application for review had been refused on 14 May 2001, promulgated on 17 May. The statutory route for challenging those decisions was an appeal to the Employment Appeal Tribunal. The applicant had not pursued that route, and the Court of Appeal could not intervene by judicial review.
3. There was no power in the High Court, acting in its judicial review jurisdiction, to quash the Mayor’s and City of London Court order transferring an application, on the court’s own initiative, to the Supreme Court Costs Office.
4. There was no basis for quashing the Administrative Court order permitting the London Cab Drivers’ Club Ltd to appear and make representations at the permission hearing. In any event, the interested party’s participation could not affect the outcome where the judicial review application was hopeless.
5. The costs allowed by the Supreme Court Costs Office could not be challenged by judicial review in the present court. Any other avenue of appeal did not involve the jurisdiction being invoked.
6. The court made no findings or comments on the merits of the applicant’s treatment by the club, her alleged employment relationship, the Employment Tribunal proceedings or any possible civil claim. Those matters were unnecessary to the procedural conclusions.

The formal order was: Application refused.

• Court of Appeal (Civil Division): On 30 November 2001, Lord Justice Pill refused the application for permission to appeal: [2001] EWCA Civ 1965.
• Administrative Court: Mr Justice Maurice Kay refused permission to apply for judicial review on 19 July 2001.
• Employment Tribunal: The originating application was struck out on 26/27 February 2001, and an application for review was refused on 14 May 2001, promulgated on 17 May 2001.