The Price of Justice

It seems such a long time ago now that Claimants had to pay fees to bring their claims. It was 26 July 2017 that the fees regime was abolished as being unlawful.  We remember it well, here at Morrish Solicitors – the moment the email arrived confirming the Unison decision, our employment team erupted with a spontaneous cheer!

The decision of the Supreme Court made it clear that the fee regime prevented access to justice, was indirectly discriminatory and was contrary to EU law.

Yet on 18 April 2019 it was reported that the Employment Appeal Tribunal (EAT) in the case of Wray v Jewish Care had refused to grant an extension of time to a Claimant who hadn’t been able to lodge his claim because of that unlawful fee regime.

Mr Wray presented his claims out of time because he was of limited means and did not have strong literacy skills. At the time he was obliged to lodge it, he would have had to pay £250 and he said he couldn’t afford it. He was nearly or slightly overdrawn and so he decided to wait.

In early August 2017 he learned of the Supreme Court’s decision that fees were unlawful and he went on to lodge his claim in early September 2017, the limitation date having expired on 18 July 2017. He was nearly two months late.

And the EAT said this was 2 months too late.

Where Mr Wray went wrong was that he didn’t prove to the Tribunal that he was genuinely dissuaded from pursuing his claims because of the fee payable. He’d waited too long. He also hadn’t properly evidenced his financial means.

So, in spite of an access-to-justice preventing, unlawful fee regime, each case will still turn on its own facts – and now, so long after the Unison decision, we suspect that we will see no more of these “late” cases anyway.

But something is wrong, here.  The Supreme Court excoriated the politicians – what use access to justice, they asked, if no-one could afford to exercise it?  It was always clear that swingeing fees of over £1000 were going to deter individuals from pursuing justice.

Now that the Supreme Court have confirmed what we all knew, it seems ironic that a technical approach means that those denied access to justice by unaffordable fees are now denied it by a narrow decision on practicability.

Daniel Kindell - Partner and Employment Solicitor

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