A Parking Adjudicator authorised to hear appeals against decisions of local enforcement authorities to uphold the imposition of penalty charges in respect of certain road traffic infringements, issued Employment Tribunal proceedings against the "Joint Committee for Parking and Traffic Regulation outside London" (a consortium of local authorities responsible for traffic enforcement in their area), complaining that he had been subjected by the Chief Adjudicator to detriment contrary to s. s47B of the Employment Rights Act 1996 ("ERA") by reason of the fact that he had made certain public interest disclosures about the Chief Adjudicator to the lead authority.
It was agreed that on a certain date, the Chief Adjudicator had ceased to allocate personal hearings to the Appellant. The Chief Adjudicator maintained that this was because of concerns which she had about the Appellant’s conduct of two such hearings.
The Respondent applied at a Pre-Hearing Review to strike out the claim under rule 18(7)(b) of the Employment Tribunals Rules on the basis that it had no reasonable prospect of success, arguing, inter alia, (a) that the Appellant was not a "worker" for the purposes of the relevant legislation, and (b) that the Chief Adjudicator’s decision not to allocate cases to the Appellant was a judicial decision which was, therefore, incapable of challenge, on the basis of judicial immunity from suit.
The Tribunal, which heard this case before the Supreme Court delivered its judgment in O’Brien, declined to strike out the claim on the "worker" issue, but did strike it out on the judicial immunity issue.
The Appellant appealed, arguing that the effect of the Tribunal's decision was that he, and other judicial office holders, may be workers yet have no legal recourse against being effectively removed from office for illegitimate reasons (for example race, sex, or disability). The Appellant argued that the Tribunal's decision had far reaching consequences and could not be right.
The EAT (Mitting J sitting alone) dismissed the appeal, holding that the decision of the Chief Adjudicator not to allocate cases could not amount to a detriment for the purposes of s47B of ERA, because it was made by her in the execution of judicial functions in her capacity as a judicial office holder, and was, accordingly, covered by judicial immunity.
The EAT stated that a decision not to allocate cases to a judge, whether salaried or fee-paid, is sometimes taken pending consideration of a disciplinary complaint against him. In the case of a complaint which might call into question his suitability to remain in office or to continue to try cases of a particular class, the decision would normally be taken to maintain public confidence in the administration of justice and to avoid any litigant whose case was determined by that judge having cause to challenge his judgment on the ground that he had heard the case. Non-allocation would, in those circumstances, clearly be a decision taken in the exercise of judicial functions. If that was the Chief Adjudicator’s purpose, judicial immunity applied to her decision. However, even if her decision was taken as a free-standing disciplinary measure, and even if it was taken for the improper purpose alleged by the Appellant of subjecting him to a detriment because of his protected disclosure, her decision would still be covered by judicial immunity.
The principle of immunity for the exercise of judicial functions is, ultimately, a policy decision, which must be upheld even in extreme circumstances, as Lord Denning MR explained in Sirros v Moore  3 AER 776 at 781J -782D:
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action…..Of course if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden CJ in Garnett v Ferrand:
‘This freedom from action and question at the suit of individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may free in thought and independent in judgment, as all who are to administer justice ought to be.’
Those words apply not only to judges of the superior courts, but to judges of all ranks, high or low.”
Paul Gilroy QC, leading Christopher Taft, appeared for the Respondent.
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