The great judicial review challenge

Getting a judicial review claim into court is no mean feat, as lawyer Alex Monaco found when he tried to challenge Vince Cable MP 

I’m a lawyer, and I haven’t, until now, been a litigant. And, what a nightmare it’s turning out to be. Thought I’d seen it all, from the early days as a trainee visiting criminal clients in jail, through representing refugees in their asylum applications, to setting up my own employment law firm, but nothing quite prepares you for taking on the government.

It was obvious to me that the new cap on unfair dismissal compensation, which from 29 July 2013 was reduced from £74,200 to one year’s wages, discriminated against older people on lower incomes. Successful claimants would only ever be awarded more than a year’s wages if they can prove that they’ve tried literally everything to get another job. In practice this almost entirely applies to people nearing retirement age.

With the new cap in place, if you are an older person on minimum wage who is unfairly dismissed, your maximum compensation is so limited that you will not be able to find lawyers to represent you on a contingency fee (percentage of damages) basis. And you certainly won’t be able to afford hourly rates. So you just won’t claim at all.

Thus this new cap is effectively carte blanche for unscrupulous employers to fire old people at will. And once fired they will end up on benefits, so it won’t be the employer who dismissed them unfairly who foots the bill, but the taxpayer instead. And it turns out that the government did not have any statistics on this point, so the impact assessment just wasn’t done.

To make this JR happen, I asked one of my lawyers, Lorna Valcin, who had some limited experience defending JR’s in the past. She put me in touch with top counsel who dealt with this type of thing all the time. They volunteered to apply to the Equality and Human Rights Commission for us, to ask them to take on the JR, but the EHRC apologetically turned us down.

Word on the grapevine is that its funding stream is drying up and it is already supporting the expensive JR on employment tribunal fees. Our barristers shrugged and said they couldn’t help further pro bono. So we asked [Outer Temple’s] Daniel Barnett, a well-known employment lawyer, to ask over a hundred lawyers at his recent London seminar if anyone wanted to form a coalition with us.

We went a bit red when the question was asked, and even redder when no hands went up.

Meanwhile I’d been chipping away at contacts in [campaign groups] 38 Degrees and UK Uncut, and both organisations were very supportive, but were fighting battles on other fronts and unable to offer more than moral support. I even spoke to Chuka Umuna MP when he came to my daughter’s school fair in his Lambeth constituency.

He commended our aims and gave me his card, but when I contacted his office, the assistant simply wished us luck and asked us to keep them posted of progress.

The new three-month time limit for JRs was quickly running out and I was getting despondent. A friendly employment judge suggested that rather than launch an expensive JR, and potentially face an adverse costs order of £80,000 if unsuccessful (which doesn’t bear thinking about!), I should ask around for an actual claim whereby the cap kicked in on an elderly claimant, and take this as a test case to the European Court of Justice. Despite the fact that this could take years, it was very tempting purely as the budget option. I was about to give up on the JR idea entirely when I went down to the High Court and watched the Unison JR against tribunal fees last week and I thought: you know what, this isn’t rocket science.

So that night I completed the claim form and the next day got it issued in court. Just when I was about to put my feet up, a friend who happens to work in a government legal department said that we might have got the wrong defendant.

Cue further serious panic, until we verified that it was indeed Vince Cable MP as Secretary of State for Business, Innovation and Skills who was responsible for the new cap, rather than the Ministry of Justice (MoJ). Finally a good night’s sleep can be had now, but who knows what the process will throw up next. And its only just started.

Compromise Agreements senior partner Alex Monaco