MoJ: No defence other than limitation
Two solicitors who sought to bring claims against the Ministry of Justice for money owed from when they sat as part-time judges over 14 years ago have had them thrown out due to limitation.
Both understood limitation periods and failed to act in 2014 when they should have known they had claims, said Employment Judge Stuart Williams in London.
District Judge Parul Desai and First-tier Tribunal judge Mark Hindley initially held part-time office in the Child Support Appeals Tribunal until they took up full-time salaried appointments in the tribunal’s successor in 2007. Ms Desai became a district judge in 2012.
Mr Hindley retired from the social entitlement chamber in July and Ms Desai plans to retire soon.
Both brought employment tribunal claims, in 2013 and 2012 respectively, over their entitlement to a judicial pension taking into account both their part-time and full-time periods of judicial service. These have been “resolved to their satisfaction”, Judge Williams said.
Ms Desai (in May 2018) and Mr Hindley (in March 2020) applied to amend their complaints to add monetary claims from their part-time days, comprising payment for writing up statements of reasons and for training days, a ‘divisor’ claim (used to calculate daily fees) and a claim for an interest-like payment. Mr Hindley also applied to add a claim for London weighting.
Their value ran to tens of thousands of pounds, the judge said.
Both solicitors accepted that their original complaints were presented years out of time, as were the applications to amend. The Ministry of Justice challenged the applications on limitation grounds; it “did not advance any defence” to their merits, the tribunal noted.
“As a district judge, Ms Desai is aware of limitation periods,” said Judge Williams. “In Mr Hindley’s jurisdiction they are less significant, but he has a professional lawyer’s knowledge of them.”
Judge Williams said that, given what the two solicitors knew in 2014 about the landmark O’Brien case – which concerned discrimination against part-time judges in the calculation of pensions – as well as “all that they had discussed with each other and with colleagues, what their solicitors wrote in 2014, and their legal sophistication, there is no doubt in my mind that by about 2014 at the latest both claimants knew that monetary claims could be made”.
The question then was why Ms Desai waited another four years and Mr Hindley another six before applying to add the monetary claims.
Judge Williams said it was clear that both thought their monetary claims would be ruled out of time “and that it was therefore not worth bothering to do anything”.
Ms Desai acted only after 2017’s ruling in Veitch – allowing a judge to add monetary claims to a pension claim – and Mr Hindley after the Supreme Court’s Miller decision in 2019, which said part-time judges could bring their claims within three months of retirement rather than when their fee-paid judicial posts came to an end.
Judge Williams noted that it took Ms Desai a further six months to make her application. “I cannot understand why Mr Hindley thought that Veitch provided a reason for further delay.”
He concluded that the balance of prejudice was “a fine one”, explaining: “If the applications are refused, the claimants stand to lose the value of their claims. If they are granted, the respondent will have to deal further with claims which are long out of time and may have to face a liability to the claimants…
“Had I been satisfied that the delay from 2014 onwards, or a significant part of it, was reasonably explained by ignorance on the part of the claimants of relevant facts or of the right to bring a claim, then the result would have been different. I could have found that such delay was reasonable.
“I can make no such finding in this case. The claimants’ delay from 2014 onwards has not been reasonably explained. I find that the balance of prejudice falls against them.”
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