Edmonds v Lawson & Anor, Court of Appeal - Civil Division, March 10, 2000,  EWCA Civ 69
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- 25 - Case No: QBENF 1999/1019/A2 IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CIVIL DIVISION)In the Court of Appeal on appeal from the High Courtof Justice, Queen's Bench DivisionRoyal Courts of JusticeStrand, London, WC2A 2LL Friday 10 March 2000 B e f o r e : LORD CHIEF JUSTICEOf England and Wales (Lord Bingham of Cornhill)LORD JUSTICE PILLand LADY JUSTICE HALE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 180 Fleet StreetLondon EC4A 2HDTel No: 0171 421 4040, Fax No: 0171 831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -James Goudie QC, Sean Jones and Anya Proops (instructed by the General Council of the Bar) for the defendantsRobin Allen QC and Paul Epstein (instructed by the General Council of the Bar) for the claimant- - - - - - - - - - - - - - - - - - - - -JudgmentAs Approved by the Court Crown Copyright © Lord Chief Justice: 1. This is an appeal by the defendants against a decision of Sullivan J made on 24 September 1999 when he held that the claimant, a pupil barrister, was entitled to be paid the national minimum wage during her pupillage. She brought the proceedings against Mr Michael Lawson QC, the head of the chambers in which she was a pupil, and against two junior members of the chambers, to each of whom she was assigned as a pupil for six months of her 12-month pupillage. Counsel on both sides are instructed by the General Council of the Bar, and the proceedings are devoid of acrimony; but the parties make sharply conflicting submissions on the issues which lie at the heart of this appeal, which are whether there was any contract between the claimant and the members of the chambers where she was a pupil and, if there was, whether it was a contract of employment within the meaning of the National Minimum Wage Act 1998. 3. The claimant, born on 1 November 1968, is now aged 31. She graduated from Oxford with a good degree in English and worked in the IT industry for some time before deciding to become a lawyer. She undertook an MA course in Environmental Law and Conservation at the University of Kent at Canterbury and graduated with a first class mark in 1996. She then studied successfully for the common professional examination at the University of Westminster. By this stage she had set her sights on practice at the Bar, and to that end she did a number of mini-pupillages and spent time in the prosecuting department of the Ministry of Agriculture. Before enrolling for the Bar Vocational Course at the Inns of Court School of Law, which she did in the Autumn of 1997, she made application for a pupillage through the Pupillage Applications Clearing House scheme, and after a series of interviews was offered a funded 12-month pupillage at a set of common law chambers in The Temple. During her year at the ICSL, for reasons which do not matter for present purposes, she decided to seek a career at the criminal Bar: having obtained her release from the common law chambers already mentioned, she accordingly contacted a number of sets of chambers specialising in crime to see if any places for pupils remained for the year beginning in the autumn of 1998. In due course she was invited for interview at Mr Lawson's chambers at 23 Essex Street, a large and highly-regarded set of criminal chambers. After two interviews, the first largely exploratory, the second intended to test the claimant's aptitude for criminal practice, the head of the chambers Pupillage Committee offered her an unfunded 12-month pupillage at the chambers. The offer was made over the telephone on 21 August 1998 and was confirmed in writing the same day. The claimant accepted the offer over the telephone, and as requested wrote on 1 September 1998 to accept the offer made in the letter to her. 4. The claimant had already gained some information about pupillage from material published by the Bar Council, from talks on the subject at the ICSL and from the Inner Temple of which she was a member. On arrival at 23 Essex Street as a pupil she was given a document entitled "Selection of Pupils, Pupil Training and Recruitment", to which a Pupillage Code was appended. She also received a pupillage checklist, listing the requirements which had substantially to be met during the first six months of pupillage in order in qualify for the issue of a provisional practising certificate. The second defendant acted as the claimant's pupil-master for her first six months of pupillage, during which she attended the courts, attended three training courses (two of them paid for by the chambers) and carried out the tasks necessary to qualify her for a provisional practising certificate, which she gained in April 1999. During the second six months of the pupillage, during which the third defendant was her pupil-master, the claimant spent a significant amount of time working on her own account, for which she was paid either privately or by the Legal Aid Board. She devilled one piece of work for a member of the chambers (not named in these proceedings) who paid her £150. 5. In years past, as Sullivan J. helpfully explains in the course of his lucid judgment, pupillage was a very informal, personal, hit-or-miss affair. While some pupil-masters conscientiously ensured that pupils were properly trained and educated in the professional skills and ethical standards required for practice at the Bar, others relied very largely on the capacity of an apt pupil, exposed over months to the incidents of a busy practice, to recognise the skills and learn the lessons which would fit him or her for professional practice. Save that the pupil would proffer a traditional fee of 100 guineas at the outset of a 12-month pupillage, which the pupil master might or might not choose to accept, the master-pupil relationship lacked any structure. There was no curriculum, and no formal monitoring of performance by master or pupil. The pupil's work experience would largely depend on the work which came the pupil-master's way during the term of the pupillage, and his future prospects would very much depend on the personal rapport he established with his pupil-master (and, in some cases, on the judgment of an experienced clerk). The system, if it be so described, did not exclude the possibility of partiality and prejudice, and the playing field on which pupils competed was not always level. 6. Since then, the relationship of pupil-master and pupil has been transformed. The reasons for this transformation are not immediately germane to the issues on this appeal; but heightened recognition that access to a profession should be open and fair and that the public are entitled to require high standards of competence and professionalism from those holding themselves out as skilled legal practitioners no doubt played a part. The documents before the court in this case, to which reference will be made below, reflect this transformation. The emphasis in the documents is, as we read them, twofold: first, to ensure so far as possible that the process of recruiting and selecting pupils is open, fair, objective and non-discriminatory; and secondly to ensure, again so far as possible, that pupils uniformly receive thorough, structured and monitored training and education in the practical and ethical aspects of practice in their chosen field at the Bar to complement the academic knowledge and skills which, by this stage of their careers, they should already possess. 7. The Act and the Regulations 8. The object of the National Minimum Wage Act 1998 was not, as we understand, to enlarge the categories of those entitled to be paid wages but to ensure that those entitled to be paid wages are not paid at anything less than a specified minimum level. Certain classes of worker were specifically included within the scope of the Act, such as crown servants (section 36), and staff of the House of Lords (section 38) and the House of Commons (section 39). Others are expressly excluded, such as members of the armed services (section 37), share fishermen (section 43), unremunerated voluntary workers (section 44), residential members of religious and other communities (section 44A) and prisoners (section 45). Section 1 of the Act, so far as relevant, provides: "(1) A person who qualifies for the national minimum wage shall be remunerated by his employer in respect...
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