​Equality Act:
access to assessors in the county court

Andrea Qwarnstrom and Simon Mullings consider the current law and guidance around the use of Equality Act assessors in the county court. Experience suggests that more robust procedures and guidance might be needed to ensure that this important court resource is properly utilised.

Through enactments from 1968 onwards, there has been recognition that the use of assessors to assist the courts is important to the developing jurisdiction in discrimination law. However, despite the advent of the Equality Act 2010 (EA) and specific provisions for assessors therein, procedural problems still arise.

In 2014, ‘satellite’ litigation concerning a dispute about an assessor appointed by the court in a discrimination claim reached the Court of Appeal in Cary v Commissioner of Police for the Metropolis EWCA Civ 987. The Equality and Human Rights Commission (EHRC) intervened. While this article is not concerned with the actual dispute in Cary, the judgment provides a useful history of the use of assessors in the courts and also clear statements on the importance of using assessors (see, for example, paras 27 and 58). Cary also provides an example of the difficulties that can arise in their appointment. At para 61, Lord Justice Christopher Clarke said:

The procedural history of this case shows that matters went badly awry. It is important that it should not happen again.

We will see that, unfortunately, this warning has not been heeded.

Rules and guidance

For our purposes, the relevant provisions start with County Courts Act 1984 s63:

63 Assessors.
(1) In any proceedings in the county court a judge of the court may, if he thinks fit, summon to his assistance, in such manner as may be prescribed, one or more persons of skill and experience in the matter to which the proceedings relate who may be willing to sit with in the county court a judge of the court and act as assessors.

The further provisions of that section were broadly encapsulated in the Civil Procedure Rules at r35.15:

(1) This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981 or section 63 of the County Courts Act 1984 as an assessor.
(2) An assessor will assist the court in dealing with a matter in which the assessor has skill and experience.
…1
(5) The remuneration to be paid to an assessor is to be determined by the court and will form part of the costs of the proceedings.
(6) The court may order any party to deposit in the court office a specified sum in respect of an assessor’s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.

EA s114(7)–(9) sets out the county court’s jurisdiction to hear EA claims and the principles for the appointment and (in Scotland only) payment of EA assessors:

(7) In proceedings in England and Wales on a claim within subsection (1), the power under section 63(1) of the County Courts Act 1984 (appointment of assessors) must be exercised unless the judge is satisfied that there are good reasons for not doing so.
(8) In proceedings in Scotland on a claim within subsection (1), the power under rule 44.3 of Schedule 1 to the Sheriff Court (Scotland) Act 1907 (appointment of assessors) must be exercised unless the sheriff is satisfied that there are good reasons for not doing so.
(9) The remuneration of an assessor appointed by virtue of subsection (8) is to be at a rate determined by the lord president of the Court of Session.2

As to further guidance: a letter from the Government Equalities Office to the president of the employment tribunals (E & W) in October 2010 sets out the government’s position on the maintenance of lists of assessors; and following Cary, Revised guidance on lay assessors was issued by HM Courts & Tribunals Service (HMCTS) on 12 November 2015. Remarkably, these documents are not readily available online. They have been obtained by way of a Freedom of Information Act (FOIA) request to the EHRC.3 Finally, a list of judicial fees, last updated on 1 April 2017, provides for an assessor’s remuneration for attendance at hearings.

Surprisingly, there does not appear to be anything on the EHRC’s website, and a recent FOIA request made by the authors revealed that the EHRC does not appear to have records regarding the use of EA assessors outside the cases it is involved in. We therefore have no figures about how many times an EA assessor has been used.

In very brief summary, the position in law and guidance of assessors in EA cases is that:

• Ajudge of the county court must appoint an assessor unless there is good reason not to;
• The assessor’s role is to assist the judge, not the parties; and
• The assessor’s fee is to be determined by the court and will form part of the costs of the proceedings unless the fee is to be paid out of money provided by parliament.

A recent case in a London county court demonstrates what can go wrong with these apparently simple propositions. It concerned a claim for housing possession brought by a housing association on the ground of alleged anti-social behaviour, which was defended with the benefit of legal aid by reference to the EA. The case demonstrates:

1. confusion as to the procedure for appointing an assessor;
2. a lack of clarity about the circumstances in which the court must appoint an assessor;
3. a lack of clarity about whether the word ‘claim’ should be construed to include a ‘defence’; and
4. widespread confusion as to remuneration of an assessor.

Whose responsibility is it anyway?

In directions agreed between the parties and approved by the court, it was ordered that:

… the court shall hear the case together with an assessor, in accordance with section 114 of the Equality Act 2010. The parties are either to agree an assessor or to provide the names and CVs of two proposed assessors to the court by 14th January 2019. In the absence of agreement the court will select one of the proposed assessors.

As the parties were directed to find the assessor, the defendant attempted to obtain details of potential assessors from the regional tribunal judges at the four nearest regions of the employment tribunal (ET). The regional tribunal judge for the south east region responded by writing to the court office, drawing its attention to staff guidance on the procedure for appointing assessors. He invited court staff to contact the Central London Employment Tribunal directly. Despite that letter, and chasing by the defendant, nothing was done by the court to progress the appointment for trial.

Claim – equal to counterclaim? – equal to defence?

In a pre-trial hearing just days before trial, the district judge confirmed that no assessor had been appointed but held that the trial should continue without one. Referring to EA s114(7) and the word ‘claim’, the judge held that the duty to appoint an assessor would have applied in this case if there had been a counterclaim rather than just a defence. That issue was brought by the defendant as an appeal to the circuit judge. Without going into detail as to the grounds of appeal, it is an extremely unlikely proposition that the intention of parliament was that assessors could assist with claims and counterclaims based on the EA but not defences.

Permission was granted but before that appeal came to a hearing, the claimant agreed to compromise. An appropriately-experienced assessor was agreed and the parties submitted a consent order, which was given effect by way of an order of the circuit judge appointing the assessor and ordering the matter to be re-listed for trial.

Remuneration

One month before trial, the claimant sent details of the assessor’s fees. These were substantially more than the fees set out in judicial fees guidance. The defendant made an application for prior authority for the Legal Aid Agency (LAA) to cover their portion of the assessor’s fees. The LAA responded via CCMS: ‘thank you for the documents submitted to date however, it would appear that the costs of an equality advisor sitting with the judge is that of the court under the administrative duty to ensure a fair trial for the defendant and not the Legal Aid Agency.’

The defendant disputed the LAA’s position referring, inter alia, to the material set out in this article. But the LAA wrote in return to indicate that it would not give prior authority for payment of the assessor and indeed did not believe that the assessor’s costs formed any part of the legal representation, and therefore it considered that they were outside the scope of the certificate. It wrote: ‘the costs of the assessor is that of the court as part of their administration of a fair trial.’

While the LAA’s analysis is technically incorrect, it does reflect the purpose and principles of the EA assessor. With that in mind, and out of pragmatism, the claimant and the assessor were asked to reconsider the position on fees, referring to guidance issued to HMCTS staff and the published lists of judicial fees. Unfortunately, it was then confirmed that the assessor had taken other work and would not be available for the trial. As in Cary, things had gone awry.

Last resort: the court

The defendant applied to the court asking it to appoint an assessor directly given what had occurred. In the event, the claim was settled just before trial, but it was clear that the court had not made further attempts to appoint a replacement assessor.

If this was the only case of its kind since Cary then it might be dismissed as a ‘one-off’. However, the authors are aware of another recent case with a very similar history in relation to an EA assessor. An assessor was chosen by the parties but when the fees could not be agreed, a judge had to direct that the court should appoint the assessor, in order that there be clarity about the assessor’s appointment and the fees to be paid.

Concerns

A court that understands that an assessor is mandatory absent good reason, and is so because an assessor is necessary for the administration of a fair hearing, should then see the need for clear, timetabled directions to ensure that the appointment of an assessor in appropriate cases is effective.

The concern is that, despite the Court of Appeal’s scrutiny in Cary, and the resulting guidance issued in 2015, there remains a critical lack of clarity among parties, court staff, and the LAA as to how to manage the appointment of assessors. It seems inevitable that there will be cases where an assessor should be appointed but is not.

We contend that the most straightforward and reliable way for an assessor to be appointed and remunerated is for the court to appoint them directly, probably through the regional ETs as suggested in correspondence with the court in the above case, and that the procedure should be recorded in case management directions to ensure that court staff work to timetables and the appointment is effective. Remuneration should be set at the judicial remuneration rates so there can be certainty about that. As things stand, the court may order that these fees be borne by the parties as ‘part of the costs of the proceedings’. However, the assessor’s role in assisting the court, not the parties, would be enhanced if the fees were generally met by the court. The LAA would not be troubled and litigants in person, who cannot get legal aid, would not then be burdened with a fee they might not easily afford.

Most obviously, the guidance should be clarified and made readily available. The EHRC should take the lead. We contend these steps are essential if the EA jurisdiction is to maintain its purpose and preserve the confidence of those who have recourse to it.