O’Brien update (1) – By His Honour John Platt

Calling all part time fee paid judges, you have nothing to lose but money lawfully due to you.

In January 2013 the Supreme Court decided that the MoJ had broken the terms of the EU Part time Working Directive of 1997 by denying pension rights to part time fee paid judges where there is a full time salaried comparator.

NB The information contained in this article is believed to be correct as at 3rd October 2014 but the situation may change in the light of future events over which the author has no control.  

That decision only covered Recorders but we now know that the Directive includes many more part time judicial offices including MHRT Chairman in England, Deputy District Judges and Deputy High Court Judges. The current definitive list of relevant offices which have either been decided or conceded by the Ministry of Justice is at page 6 of the document to be found at https://www.gov.uk/government/news/fee-paid-judicial-cases.           

The only major omission from the list is work for the Parole Board which is still contested by the MoJ and will be decided by the Employment Tribunal in due course in a pending claim. One other major contentious issue is the question of time limits for making a pension claim where an individual has held more than one part time fee paid office. This point is under appeal and is discussed in more detail below.    

Miller v MoJ

In the follow on case of Miller v MoJ in January 2014  Employment Judge MacMillan held inter alia that since April 2000 the MoJ has been guilty of further breaches of the Directive in three ways:

(a) by paying less than the daily rate for training days ( in most cases ½ or less),

(b) paying all judges 1/220 of the comparable annual salary for each sitting day instead of 1/210 for Recorders and Deputy Circuit Judges, and 1/215 for Deputy District Judges, and

(c) not paying the London annual allowance and salary lead to London District Judges. 

Subsequently, although it was not part of the Miller judgment, the MoJ has acknowledged that 1/220 divisor for Deputy High Court judges is incorrect and is offering 1/210.

The MoJ has decided not to appeal that part of the Miller decision so it now undoubtedly owes all serving part time fee paid judges including many of those who have retired or taken full time appointments varying amounts of money for underpayment of fees from at least 7th April 2000 which in some cases will be more than £10,000 gross and also compensation for late payment.

The Miller case also dealt with minor issues over holiday pay and sick pay which almost certainly affect only a very few.  However all part time fee paid judges should by now have received a letter from the MoJ to say that their daily rate includes an allowance for holiday pay. Those who wish to delve further into the holiday/sickpay issue or to read the full judgment can now access the judgment at http://www.judiciary.gov.uk/wp-content/uploads/2013/08/miller-2-december....

The consequence of Miller

Part time fee paid judges holding relevant offices now have two valid claims against the MoJ – (a) the pension claim and (b) the money claim.

Pensions

The MoJ is in the process of constructing a brand new pension scheme for part time judges. The draft was published on the MoJ website on 19th September with consultation running until 12th December 2014. The proposals generally mirror the terms of the full timers’ pension scheme under the 1993 Act but the proposal to treat each fee paid office separately will result in a large number losing out in comparison to their salaried comparators which would not appear to comply properly with the EU Directive.

The consultation paper is at https://www.gov.uk/government/consultations/fee-paid-judicial-pensions-u....

The current target date for implementation is March 2016. The formula to be used for calculating pensionable service is that put forward by the MoJ and approved by the Tribunal at a later O’Brien hearing in August 2013. It is both clear and fair. The pension claims moratorium announced in March 2013 remains in effect and has been approved by the Employment Tribunal. So no immediate action is required of those who will still be sitting in part time fee paid office in March 2016.

As soon as the scheme comes into effect you will be credited with pensionable service for all your relevant part time fee paid sitting and training days since 7th April 2000. Credit for days before April 2000 is an issue which will be decided by the Court of Appeal in February 2015 with the possibility of a further appeal to the Supreme Court thereafter. 

However those who retired from any particular Part Time fee paid office after 2nd December 2013 have an immediate right to a pension which will not start to be paid until probably some date in 2016. The MoJ has announced a scheme for making lump sum payments on account of the pension due and payment of compensation for late payments.   Details have been published in a MoJ press release dated 3rd  July 2014 which can be found at  https://www.gov.uk/government/news/fee-paid-judicial-cases. Although the press release appears to exclude those who started sitting before April 2000 the Treasury Solicitor has confirmed that those in this category may claim for post April 2000 sittings pending the outcome of the appeal over the pre April 2000 point.               

The money claim for sitting and training days

This divides into two parts: (a) after 4th January 2014 and (b) between 7th April 2000 and 2nd January 2014.

In respect of (a) it appears that both the Judicial College for training days from 1st July 2014 and HMCS for sitting days from 1st August 2014 have made the necessary adjustments to their computer systems to provide for the correct levels of payment so any continuing breach of the Directive has now ended. The MoJ has accepted that it is their responsibility to contact individually those who have been incorrectly paid for sitting and/or training between 4th January 2014 and those dates and to remedy any underpayments made. That statement was made by Nick Goodwin, the Head of MoJ Judicial Pay and Pensions at a Tribunal hearing on 19th June 2014.   No announcement has yet been made for when that process will start or how compensation for the delay in payment will be calculated.

In stark contrast the MoJ has declined any responsibility to make individual contact with those to whom they owe money for underpaid sitting and training days between April 2000 and 2nd January 2014 which is likely to be be in the range of £1,000 to over £10,000 gross to each individual.  

The only thing the MoJ have done is to publish three press releases on the government website in March June and July. The most recent is at https://www.gov.uk/government/news/fee-paid-judicial-cases with links to the earlier statements.  Care should be taken with the March and June statements which contain dates for making claims which the Treasury Solicitor has acknowledged are legally incorrect and the latest information from the MoJ is that the 30th September deadline contained in the July press release by which claims should be made will now be extended to 31st October.  It is not clear yet whether this is to be a deadline or a guideline.

It has also now emerged that in June 2013 the MoJ has issued by means of a letter from the Treasury Solicitor to the Employment Tribunal a moratorium on money claims similar to the pension claims moratorium. The precise terms of this money claim moratorium have never been published and remain available only to solicitors representing those who lodged claims before June 2013 although there are many, particularly part timers who have retired since 2nd March 2013, who are directly affected by it.  

Others may decide whether the conduct of the MoJ in this regard or more generally may be open to challenge by Judicial Review or otherwise and how it may affect future applications for time extensions. The purpose of this article is to make all members of the Bar who sit or have sat as Part Time fee paid judges aware that they now have a claim and where to find out how to make that claim. The decision whether or not to claim remains one for each individual to take but before claiming two points need to be made.

Claims must be in time

The Judicial Pay Claims Unit (“JPCU”) announced in the Press releases that it will only deal at this stage with claims that are in time in accordance the decision in Miller. Some out of time claims have therefore been rejected by the JPCU. Claims are in time if you still hold a part time fee paid judicial office listed in Annex A to the July press release or you ceased to hold that office after 2nd March 2013. If your claim is out of time the present position is that depending on the outcome of the Miller appeals you may have to apply to the Employment Tribunal for an extension.   So long as the money claims moratorium remains in place the MoJ will invite the Tribunal to ignore any period after 2nd March 2013 and only rely on any lapse of time up to that date. Although the Treasury Solicitor has given an assurance that adequate notice will be given of the ending of the moratorium it cannot be expected to last indefinitely.

HOWEVER  on Friday 27th September 2014 The Treasury Solicitor filed with the Tribunal a list of over 3000 claimants who had made claims either to the Tribunal or the JPCU and which the MoJ accepted are due a payment in respect of their non- pension claims. A number of these claims appear to be substantially out of time,   indeed in one case the claim is over six years out of time. The MoJ has so far offered no explanation for this discrepancy.           

More than one fee paid office

One of the issues decided in Miller which is under appeal is that each part time fee paid judicial office stands alone for limitation purposes. So a barrister who sat both as a Recorder and Deputy District Judge Magistrate and who retired from the first office on 31st December 2012 and from the second office in April 2013 is out of time to make a money claim for his Recorder sittings but in time for his Magistrate sittings, although paradoxically both his pension claims remain in time. His only remedy is to apply to the Employment Tribunal for an extension of time in which to bring a money claim for underpayment of his Recorder sittings and training days. The Miller decision on the general question of time extensions is also being appealed so provided the money claim moratorium remains in place it would seem sensible at this stage either to await the outcome of those appeals or to claim for the in time office and specifically reserve your position on the out of time office.

Making the claim

Anyone who has or who thinks they have or may a claim should simply e mail the JPCU at JudicialPayClaims@justice.gsi.gov.uk. There is no official form for claiming but a letter along these lines should suffice

“Dear Sir,

Following the decision in Miller v MoJ 2nd January 2014 I wish to claim for underpayment of my fees for sitting and training as a

Delete as necessary

[Recorder/ add or insert any other relevant part time fee paid judicial office to cover all offices held which are on the current definitive list at    https://www.gov.uk/government/news/fee-paid-judicial-cases.

From

[7th April 2000/ or if later insert commencement date of first part time fee paid appointment ] to 2nd January 2014 [ or if earlier insert date of retirement from your last relevant office]

I also claim compensation for the delay in payment of these fees.

Delete as necessary any or all of the following paragraphs

Please note that I reserve my position over claiming for sitting and training days before 7th April 2000 which I understand is the subject of a pending appeal to the Court of Appeal.

Please note that I reserve my position over claiming for sitting and training days for the Parole Board which has not yet been decided by the Employment Tribunal.

Please note that I reserve my position over claiming for sitting and training days as a [insert office(s) for which you are currently out of time to claim]  which are subject to appeal in the Miller case on the question of when time starts to run for multiple office holders.

Please note that I have yet to hear from you with your offer to correct underpayments for sitting and training days after 4th January 2014 and compensation for late payment although it is now over three months since Mr Goodwin gave an assurance to the Employment Tribunal that the MoJ would contact those who had been underpaid.

Please acknowledge receipt of my claim and confirm whether you need any further information from me at this stage.

Yours etc.”

The JPCU has in the last few days changed its procedures no doubt in response to the volume of claims.  A letter along the lines set out above will now generate an automated response as follows:

If you emailed us about your intention to make a claim, please ensure that the following information has been provided:

Whether you are making a pension claim and/or a non pension claim (e.g. sitting fee, training rate etc)
What positions you held during the time claimed for and the date of appointment for each position mentioned
The region/s you sat in for the positions claimed for (if you are unsure of the region, please could you provide the main Court/Tribunal/s)
What period you are claiming for, including clarification of whether these dates relate to sitting days, or training days
Your payroll number, if available
Your National Insurance number

If you did not include this information with your email and you do intend to make a claim, please provide it as soon as possible in order to expedite the process.

Once a claim handler has been assigned to your claim, they will contact you directly to advise of the progress of your claim and any further information required. Upon allocation, the team member responsible will assess the claim and provide a written offer within 30 days.

Please note that due to the large volume of claims and correspondence being received, we may not be able to reply to your query straight away and there may be some delay before your claim is allocated to a team member for processing. Please bear with us whilst we work through all of the claims and queries received and be assured that a member of the team will contact you as soon as possible.

It will obviously be helpful either to include all this information in your claim letter or to provide it as soon as possible thereafter. The JPCU is confident that it holds details of all part time fee paid sitting and training days so it is not fatal if you cannot fully particularise your claim at this stage. Obviously the more accurate you can be the better but Judge MacMillan has made it clear that if the MoJ records produce an outcome which is more favourable to the claimant than his or her own records he expects the offer to be based on the MoJ records,   

The unit will therefore initially use its own records to calculate how much is owed.  When any offer is made it may be sensible to call for and check the detailed calculations against your own records particularly for sitting and training before 2006 as the MoJ has previously claimed that its records before then are incomplete.

The JPCU has set up its own appeals process to try and resolve any disputes internally but if agreement cannot be reached any claimant has the right to lodge a claim with the Employment Tribunal.

Anyone who wishes to receive free updates by e-mail on future developments in the O’Brien and related litigation may e-mail his request to jpjudgeretired@gmail.com but His Honour will not be able to give advice in individual cases.                                    

His Honour John Platt is a retired Circuit Judge who worked on the drafting of both the Judicial Pensions and Retirement Act 1993 and the various accompanying Regulations and is the author of a handbook Judicial Pensions - A Guide to the 1993 Act.     

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