Seldon v Clarkson Wright & Jakes (A Partnership)

Where an appeal raises a fundamental challenge to the effect or validity of a regulation made pursuant to a European directive, and the same issue is being considered in related proceedings, the appeal may be adjourned generally pending that determination. Interrelated grounds should ordinarily be dealt with together rather than separating the central challenge from the remaining issues. A respondent may recover the costs of a hearing day where a late submission materially enlarges the scope of the litigation. The court made no determination on the merits of the challenge and directed that the appeal’s future course be considered after the related proceedings.

This was an appeal from a decision of the Employment Appeal Tribunal, Elias J presiding, in favour of a solicitors’ partnership. The claim arose under the Age Discrimination Act. During the hearing, the appellant and the Equality and Human Rights Commission advanced a fundamental challenge to regulation 3, said to have been made pursuant to Council Directive 2000/78/EC of 27 November 2000, including the contention that Article 6 had not been properly utilised. The European Court of Justice had already ruled in the related Age Concern proceedings, whose consequences were due to be considered in the Administrative Court. The central issues were whether this appeal should proceed or be adjourned, and how costs and future directions should be dealt with.

Disposition. The formal order recorded that the appeal was allowed. Operatively, the appeal was adjourned generally and the respondent was awarded its costs of the day.

1. The principal issue was a fundamental challenge to regulation 3, purportedly made pursuant to Council Directive 2000/78/EC of 27 November 2000. The challenge concerned whether regulation 3 was of effect and whether any derogation from the Directive was possible. The court made no determination on the merits.
2. The challenge had become the central issue in the appeal. Grounds 2 to 9 were materially interrelated with it. It was therefore not sensible to proceed with those grounds while adjourning ground 1.
3. The related Age Concern proceedings were due to consider the consequences of the European Court of Justice ruling at first instance. The present appeal was accordingly to be referred, after that determination, to the supervising Lord Justice for directions. Those directions could address the future course of the appeal, possible joinder with any related appeal, and further costs protection for the respondent.
4. The respondent was entitled to the costs of the hearing day. The scale and complexion of the litigation had materially changed following the late submission attacking regulation 3, which had been advanced several months after the Age Concern ruling and only fully developed during the hearing.

1. Court of Appeal (Civil Division): The appeal was adjourned generally, the respondent received its costs of the day, and the appeal was referred for future directions after the related Age Concern proceedings.
2. Employment Appeal Tribunal: Elias J, then President, had decided the claim in favour of Clarkson Wright & Jakes.