For latest Supreme Court update on O’Brien, see the note at the end of this piece regarding the reference to the European Court of Justice
A part-time judge who has been battling for himself (and colleagues) to receive pensions has lost a case that could have established pension payments would be backdated to cover all their years of work. Instead the Court of Appeal ruled there will be a cut-off at April 2000, when the European Part Time Workers Directive (PTWD) (97/81/EC) was transposed into UK law.
The basis of Dermod O’Brien’s substantive case was that failure to pay pensions to fee-paid judges and tribunal chairs was unlawful discrimination under the Directive. Following earlier litigation (see O’Brien v MoJ 2013) that established Recorders such as O’Brien should receive pensions, the government has agreed to institute pensions for other fee-paid judicial offices too (see Fee-paid judicial cases: update 3 pdf). These were to be backdated to 7 April 2000 with a new scheme from April 2015 (see Consultation for details).
The Court of Appeal case (O’Brien v MoJ  EWCA Civ 1000) concerned how far pension entitlement should be backdated. Lawyers for O’Brien (and in effect any other fee-paid judicial officers in similar positions) argued that the pension provision should take into account periods of service before the Directive entered into force. He had worked as a Recorder between 1978 and 2005.
But as far as Lord Justice Lewison was concerned this would offend against the the principle that legislation should not be retroactive: “EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.” Read the rest of this entry