Pension pothole is finally filled

On 6 February the Supreme Court brought to an end an eight-year-long battle between Dermod O’Brien QC and the Ministry of Justice (MoJ). Mr O’Brien won - and so have the several thousand other lawyers who are in the same position as him.

Mr O’Brien had sat as a recorder (a part-time criminal judge) for 27 years; at the same time he continued in practice as a successful silk. Following his retirement in 2005 he sought a judicial pension but was refused by the MoJ. He started proceedings in the employment tribunal claiming discrimination against part-timers. The case could not have been more important for all the other lawyers who work as part-time judges but he was denied support from the Bar Council and has had to fund the case himself.

And what a case - two days in the Court of Appeal, two days in the Supreme Court in 2010, one day in the European Court of Justice and a further three days in the Supreme Court in 2012. In the process it had become clear as a result of Mr O’Brien’s Freedom of Information requests that it was purely on grounds of cost that recorders had been denied a pension when the part-time workers regulations were made in 2000.

Cost alone can never justify discrimination so the MoJ tried to put up a new justification created ex post facto on the basis of alleged fairness. This new defence was unanimously rejected by the Supreme Court in a judgment given last week (6 February).

The Supreme Court acknowledged that this was a difficult time for public funds and that resources were not “bottomless”, but ruled that the resources available could not be utilised on a discriminatory basis and that all the alleged fairness arguments put forward were really a cloak for saying that they could not afford to pay these pensions. So now, part-time judges

sitting in all kinds of courts and

tribunals can start claiming their pro-rated judicial pensions from the date of their retirement.

The judgment’s wider significance is that the controversial

principle of “costs plus” has been rejected. Cost can never justify discrimination whether in the public or private sphere. Second, ex post facto justifications will be very difficult. The court said that, “in this as in any other human rights context, this court is likely to treat with greater respect a justification for a policy which was carefully thought through by reference to the relevant principles at the time when it was adopted”.

The Supreme Court has sent the case to the employment tribunal to calculate the precise amount of his pro rata pension. Mr O’Brien is going to enjoy his retirement.