Seldon v Clarkson Wright & Jakes (A Partnership)

The court has today been hearing an application for permission to appeal with appeal to follow by Mr Leslie Seldon against a decision of the Employment Appeal Tribunal, Elias J, the then President, presiding, in favour of Clarkson Wright & Jakes, a partnership of solicitors.

The claim is one under the Age Discrimination Act. In March of this year the European Court of Justice gave a ruling in a decision known as Age Concern (R (Age Concern) v Secretary of State for Trade and Industry). That decision is now seised by the Administrative Court and later this week the consequences of that ruling are to be considered in the Age Concern case .

We have come to the conclusion that notwithstanding our having spent a day on the case and having done a good deal of preparatory work, the appeal should be adjourned. That is not opposed by any of the parties, Mr Allen for the Commission, who have intervened in this case, telling the court that he understands the logic of the adjournment.

The issue which arises is that of the costs of today and what, if any, ancillary directions should be given. A concern was expressed very soon after the hearing had begun this morning by Mr Allen, who appears for the Commission, and for Mr Seldon, with the assistance of Mr O’Dair who formerly appeared for Mr Seldon, as to point 1 of the points which are sought to be taken on this appeal. It is stated in the addendum to the supplement to the amended skeleton argument submitted by Mr Allen:

“Not possible at all to justify direct discrimination because there is no explanation as to how Article 6 has been utilised by the state in making regulation 3.”

The court explored this morning whether there would be advantages in adjourning the appeal.

There are eight other grounds which the court was prepared to consider. During the day it has become increasingly obvious that point 1 is a very important one. The appeal has turned into what my Lord Hooper LJ referred to as a major onslaught on regulation 3, purportedly made in pursuance of Council Directive 2000/78/EC of 27 November 2000.

That issue is to be considered in the Age Concern case itself in the Administrative Court later this week. The submission before this court is that regulation 3 is of no effect and that, as the law of England and Wales stands, no derogation is possible from the effects of the Directive. Mr Allen told us it was a very important point. It is a fundamental point, he submitted. We agree with that. He has referred to the other eight points but having been told of the time allotted to him -- and concerns were expressed after the short adjournment about the timing of the appeal – he said that the other points would be short and that the main issue in the claimant’s case was ground 1.

Mr Allen did touch upon some of the other points but essentially in a point 1 context, from which it appeared to us that there is in submissions of the Commission an interrelation between the various points. I mention that because we had to consider proceeding with points 2 to 9 while adjourning point 1. We do not consider that to be a sensible proposition and it is not supported by any of the parties.

It is in those circumstances that we need to consider the application by Mr Croxford for the respondent’s costs of the day. A similar submission is not made by Ms Rose QC who appears for the intervening party, the Department for Business, Innovation and Skills. Mr Allen’s submission is that the question of costs will need to be looked at retrospectively, that they should be reserved and no costs should be made on the information available to the court today.

Mr Croxford submits that his clients, a firm of solicitors, have appeared to deal with other points and the whole scale of the litigation has changed as a result of Mr Allen’s submission. It was made in a skeleton argument in a document dated 24 June, that is, several months after the decision in Age Concern, and indeed it is only during the course of the day that the magnitude of the change in the complexion of the case has emerged.

In our judgment the respondents are entitled to their costs of the day. The case will be adjourned generally with that order. We also direct that following the determination at first instance of the case of Age Concern in the Administrative Court, the present appeal is referred to the supervising Lord Justice so that applications can be made and directions given as to what course the appeal should take: whether, for example, the appeal should be joined with any appeal that may be made to this court in Age Concern, and if so whether further protection should be given in costs to the present respondent by reason of the enlargement of the scope of the litigation. The supervising Lord Justice will make those directions. He may or may not see fit to refer to members of today’s constitution in doing so.

We do not formally reserve the appeal to ourselves, but having done the work we have, and without objection from the parties, we say that if and when the appeal does come back before this court then if one or more members of the present constitution are available it would be an advantage if that member or members were to be included in the constitution.