Ministry of Justice v Burton & Anor

An employment tribunal’s power under Rule 70 to review a decision where necessary in the interests of justice is a principled discretion. It must give proper weight to finality. A party will not ordinarily obtain a review merely because its representative omitted an available argument, nor by asserting that the tribunal should have raised that argument itself.

A perversity challenge to an evaluative quantification decision succeeds only where the result was one no reasonable tribunal could have reached. Where the evidence permits only a broad assessment, and the party seeking a taper or cap has not supplied evidence to justify it, the tribunal may make the best assessment it can without falling into error.

The respondents were part-time chairs of the Residential Property Tribunal. In an earlier decision, they had been held capable of comparison with salaried judges in the First-tier Tribunal (Tax Chamber). Their claim concerned payment for writing decisions in leasehold valuation cases.

The Employment Tribunal found less favourable treatment and awarded an additional fee equal to two thirds of a sitting-day fee for each sitting day. It later refused the Ministry’s application to review that decision. The Ministry appealed unsuccessfully to the Employment Appeal Tribunal, whose decision was identified as UKEAT021015.

Before the Court of Appeal, the Ministry accepted the two-thirds rate for shorter cases. It argued that applying it to every day of a longer hearing was perverse, or alternatively that the Employment Tribunal should have reviewed its decision to impose a taper or cap.

1. Appeal dismissed. The Employment Tribunal was entitled to refuse a review of its decision. Rule 70 of the Tribunal Rules permits a review where necessary in the interests of justice, but that discretion is not open-ended. It must be exercised consistently with the importance of finality.

2. The proposed taper or cap was an argument which could and should have been advanced at the original hearing. No party had suggested it then, and the Ministry could not avoid that difficulty by saying that the point was sufficiently obvious for the Employment Judge to raise unaided. The matters relied upon did not compel a review. In particular, the historic cap was of limited relevance, and the finding that one judge had spent a disproportionate time on a particular ten-day case did not establish that all long cases required proportionately less writing time.

3. Reopening the issue would also have been likely to require further evidence or cross-examination, including evidence about whether chambers days were included in the estimate of writing time. That would undermine finality. In any event, fresh evidence could not be introduced on review unless the principles in Ladd v Marshall were met; the evidence in question could plainly have been obtained for the original hearing.

4. The quantification decision was not perverse. A perversity appeal requires an overwhelming case that no reasonable tribunal, properly appreciating the evidence and law, could have reached the result. The Employment Judge had to make a rough assessment on limited evidence. The Ministry bore the responsibility of adducing evidence for a taper or cap. In its absence, the decision not to treat longer cases differently was open to the tribunal, particularly as cases exceeding three days were rare.

• Court of Appeal (Civil Division): Dismissed the Ministry’s appeal and upheld the refusal to review and the Employment Tribunal’s quantification decision: [2016] EWCA Civ 714.
• Employment Appeal Tribunal: Langstaff J, President, dismissed the Ministry’s appeals against the quantification decision and the refusal of review: UKEAT021015.
• Employment Tribunal: Employment Judge Macmillan awarded an additional decision-writing fee of two thirds of a sitting-day fee for each sitting day in leasehold valuation cases, and later refused a review.