Unison, R (On the Application Of) v Lord Chancellor

Permission for judicial review requires an arguable case, meaning grounds that merit full consideration at a substantive hearing. Interim relief requires consideration of three matters: whether there is a serious issue to be tried, whether damages would be an adequate remedy, and the balance of convenience, including the wider public interest. Where relief would restrain a public authority from enforcing apparently valid legislation, strong grounds are required. Fee-remission arrangements and the prospect of repayment may materially protect affected persons and weigh against interim relief.

UNISON sought permission to challenge the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013, which introduced fees for Employment Tribunal and Employment Appeal Tribunal claims. The proposed grounds concerned European Union law, inadequate assessment of impact, and unlawful disadvantage to particular groups.

UNISON also sought interim relief preventing implementation of the Order pending determination of the judicial review. The court considered the arguability of the proposed claim and whether interim relief was justified before a full hearing.

1. Permission. The claimant established an arguable case on all four proposed grounds. Permission to apply for judicial review was therefore granted.
2. Interim-relief test. The court applied a three-stage approach: whether there was a serious issue to be tried; whether damages would be an adequate remedy; and whether the balance of convenience favoured relief. The first stage was satisfied. The adequacy of damages did not assist materially, since the dispute concerned public-law legality and damages were unlikely to provide a realistic remedy.
3. Balance of convenience. The wider public interest had to be considered. Following R v Secretary of State for Transport ex p Factortame Ltd No 2 [1991] 1 AC 603, the court was reluctant to restrain enforcement of apparently authentic law unless the challenge was sufficiently firmly based to justify that exceptional course. That approach applied by analogy to the subordinate legislation in issue.
4. The challenge was arguable but was not sufficiently strong, on the material then available, to justify suspending the fee regime. The court also considered the impact on affected claimants. The remission provisions protected persons on specified benefits and others with limited disposable income. Fees paid under an Order later found unlawful would have to be repaid. Those protections weighed against interim relief.
5. Orders. Interim relief was refused. The judicial-review claim was expedited for a two-day hearing in October 2013, with directions for further evidence, skeleton arguments and bundles.