Jon Comlay, Author at Parklane Plowden

Expertise

Our Expertise

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

Pregnancy and Maternity Discrimination in the Workplace – Changes in 2024

2024 has already brought some significant changes to pregnancy and maternity discrimination law.  But what are they? A re-hash of what was already there? A step too far? Or a great rebirth of maternity protection?  This article seeks to reflect those key developments, and what they might mean for women, employers, and practitioners alike.  (1) An Extension of Redundancy Protections  Until 6th April 2024, Regulation 10 of the Maternity and Parental Leave Regulations 1999 (“MPL”) offered some women positive discrimination, rarely seen outside disability discrimination law.  If it was not practicable by reason of redundancy, to continue to employ someone during their maternity leave, that person obtained priority status for any suitable alternative employment. If a role was suitable, they had to get it. Otherwise, it is Automatic Unfair Dismissal.  From 6th April 2024, it has been substantially widened. That priority now also extends to:  <ul> <li>‘The Protected Period’, being from when the employer is informed of a pregnancy, until either Statutory Maternity Leave (“SML”) starts, or 2 weeks after the pregnancy (if there is no SML);</li> </ul>  <ul> <li>‘The Additional Protected Period’. This starts after SML, and ends 18 months after the expected week of childbirth (see exact wording for the specific day);</li> </ul>  This could triple the protection women have. It extends this positive discrimination from not only the period of maternity leave, but to potentially around nine months beforehand, and potentially nine months or so afterwards.  Employers must be aware of this when conducting any redundancy exercise. No longer must they only consider those women on maternity leave for any suitable alternative role. Now, they must consider anyone whom they have been told is pregnant, or whom has recently returned from maternity leave. This will likely encapsulate many more persons.  (2) Widening of Section 18 EQA 2010  Section 18 EQA 2010 offers protection from unfavourable treatment because of the protected characteristic of pregnancy and maternity. However, it has had its drawbacks.  Before this year, it only applied during the ‘protected period’, which was the duration of any pregnancy and maternity leave. This was the specific impact of S.18(5) EQA 2010. Perhaps that sounds sensible?  However, what about the woman returning from maternity leave, whom finds their role has been changed, their office occupied, and themselves isolated in the workplace, all because she had been pregnant?  That is unfavourable treatment due to maternity, but they seemingly had no claim under S.18. They would have had to rely on S.13 EQA 2010, and (potentially) the difficult comparative exercise which that can entail. Even then though, would a man returning after one year have been treated any differently? Perhaps not.  From 1st January 2024, the position is different. The EQA 2010 (Amendment) Regulations 2023 have amended S.18(2) EQA 2010, and removed S.18(5) EQA 2010. This means that if treatment was due to pregnancy, but occurred after the protected period, S.18 claim still exists. This seeks to reflect the ECJ decision in Brown v Rentokil [1998 ICR 790]. S.18 also offers protection if a person has ‘exercised’ the right to maternity leave.  This is a further protection for women, particularly when no indirect discrimination or harassment claims can be brought on the grounds of pregnancy/maternity (See S.19 and S.26). It is arguable that EU Law may well have offered this protection in any event through Brown, but having it codified in S.18 is certainly helpful, particularly post-Brexit.  (3) Direct Discrimination  Again, until this year, S.13(7) EQA 2010 prevented women claiming that less favourable treatment due to breastfeeding, was direct sex discrimination in the workplace. Again, this was in conflict with EU Law, such as the ECJ decision in Otero Ramos v Servicio Galego de Saude [2018 ICR 965].  This caused an issue. If you were dismissed due to breastfeeding in the workplace, (unless you could rely on EU Law) the statute prevented a S.13 Direct Discrimination Claim ‘because of sex’. A S.18 EQA 2010 claim might have been closed too, for the reasons above. This was unsatisfactory.  From 1st January 2024, Section 13(7) is no more. This means that less favourable treatment due to breastfeeding can now be direct sex discrimination.  Recent case law has assisted in this area too. Cases such as Commissioner of the City of London Police v Geldart [2021 ICR 1329], suggest that a woman who has been treated unfavourably on the ground of pregnancy or maternity, would not need to compare herself to a man to establish direct sex discrimination. If the ‘reason why’ question suggests pregnancy/maternity was the reason for the treatment, a direct sex discrimination claim will likely succeed.  What is gained by this, is a good question.  Section 18(7) prevents a S.13 direct sex discrimination claim being brought, if a S.18 claim can be brought on the same facts. Given the widening of S.18, as described above, this could arguably make some of the benefits of the widening of S.13 redundant. In reality, the key benefit is likely to concern less favourable treatment due to breastfeeding, which will now certainly succeed as a S.13 Direct Sex Discrimination claim, if not under the new widened S.18.  A final option might be a Section 13 EQA 2010 claim, for direct discrimination ‘because of pregnancy or maternity’. It is again questionable what the benefit in it might be. Such a person has S.18, which does not need a comparator. However, given the specific wording of S.18(7) EQA 2010, it seems that S.18 does not prevent such a claim of S.13 direct pregnancy/maternity discrimination, even if a S.18 claim could succeed on the same facts.  (4) The Paternity Leave (Amendment) Regulations 2024  And to close, one for the fathers. If the expected week of childbirth is after 6th April 2024, there is now greater flexibility in when paternity leave can be taken. It can now be taken any time within the first year of birth, and can be taken in 2 x 1-week blocks, rather than only in 2-week blocks.  Conclusion  Some of these changes are codification of ECJ caselaw. Yet, their codification in the EQA 2010 is of real assistance for litigants, employers and practitioners alike.  The impact of the changes to the EQA 2010 are notable. Unfavourable Treatment by an employer because of pregnancy/maternity is now more likely to lead to a successful claim, either under S.13 or S.18. Employers may now lose the technical arguments about ‘protected periods’, which may have allowed them to defend many a claim.  But some changes have far more weight. The impact of the changes to the MPL regarding redundancy is clear, and employers must be alive to them. They offer a significant widening of the protection to women, potentially giving them priority treatment in redundancy situations for over two years of their working life. It is the making of reasonable adjustments on a vast scale indeed.

A reminder from the EAT that Employment Tribunals must have regard to disabilities of litigants in person during case management stages

Mr B King v Gemalto Thales UK Ltd 2024 EAT 34 (8 March 2024)  The Background  Mr King (“the Claimant”) started working for Thales (“the Respondent”) in December 1999. The Claimant is vulnerable with mental health conditions. He brought an unfair dismissal claim to the Employment Tribunal which was dismissed due to it being submitted out of time. The Claimant brought a further separate claim alleging sex discrimination. A Preliminary Hearing was held to consider whether the second claim also included a claim of disability discrimination and whether the claim of sex discrimination was an abuse of process.  At first instance an Employment Judge concluded that the first claim did not include a claim of disability discrimination. Nonetheless, they upheld the Respondent’s abuse of process argument which resulted in the dismissal of the sex discrimination claim and refusal of the application to amend the second claim to add disability discrimination.  The Law  The EAT, presided by His Honour Judge James Tayler, considered several legal principles as part of the appeal. For the purposes of this article, it is pertinent to note paragraph 58 of the Judgment as follows:  “58. An Employment Tribunal may have to take account of learning difficulties and mental health issues that make a witness vulnerable in two principle ways:  58.1.  the Employment Tribunal may have to adjust its procedures to permit a witness to give his or her best evidence. A failure to make an adjustment could possibly be so serious as to render the hearing unfair  58.2.  it may be necessary for the Employment Tribunal to take vulnerability into account when assessing the evidence of a witness. A failure to do so could possibly:  58.2.1.  be so serious that the hearing is unfair  58.2.2. involve a failure of the Employment Tribunal to direct itself to the relevant law  58.2.3. undermine the Employment Tribunal’s analysis of the evidence to such an extent that a decision might be perverse, even taking account of the high threshold of showing perversity – this might be in connection with any other errors of analysis of the evidence or application of the appropriate legal tests”  Furthermore, the EAT recorded:   “Although the legal duty to make reasonable adjustments pursuant to the Equality Act 2010 does not apply to the employment tribunal, it is well established that the tribunal should make such adjustments as are necessary to ensure a fair hearing: Heal v University of Oxford [2020] ICR 1294, at paragraph 18.”  Finding  The EAT found that in undertaking the broad, merits-based assessment, including the analysis of the Claimant’s evidence, the first instance Judge was required to take account of The Claimant’s vulnerability. Emphasising that “proper allowance should have been given to Mr King’s vulnerability when assessing his evidence” at paragraph 87. The EAT remitted the matter to a new tribunal for a fresh assessment, tasking it with considering all relevant factors, including the precise nature of the Claimant’s claims, the reasons for not bringing those claims earlier, the impact of his mental health conditions, and the possible prejudice to the Respondent.  Comment  This case acts as a helpful reminder of the importance in having regard to disabilities of litigants in person during case management stages.  Employment Tribunals are obliged to ensure substantive fairness, allowing parties to effectively participate throughout all stages of the process. In utilising judicial discretion, the Tribunals must weigh in the balance of fairness and access to justice for all parties including vulnerabilities of individuals. It follows that at a final hearing witnesses should also be afforded the opportunity to provide reliable evidence.  Helpful resources for Tribunal users:  <ul> <li><a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf" target="_blank" rel="noreferrer noopener">Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings.</a></li>  <li><a href="https://www.theadvocatesgateway.org/toolkits-1-1-1" target="_blank" rel="noreferrer noopener">The Advocate’s Gateway Toolkits</a></li>  <li><a href="https://www.judiciary.uk/about-the-judiciary/diversity/equal-treatment-bench-book/" target="_blank" rel="noreferrer noopener">Equal Treatment Bench Book</a></li> </ul>

Parklane Plowden welcomes new pupil

Chambers is delighted to welcome Isabella Brunton, who is commencing her specialist civil law pupillage under the supervision of Claire Millns.  Isabella achieved first-class honours at the University of York in Law and was awarded the Citizenship Award for her role as Mistress of the Moots of the Mooting and Bar Society. She was awarded the HHJ Paul Clark Scholarship and Blackstone Entrance Exhibition Award by Middle Temple, and the Excellence and Career Commitment Scholarships by BPP. She went on to achieve a Distinction in her BTC LLM.

New Chief Coroners Guidance on Obtaining Information Regarding Social Media Use

On 2 April 2024, the Chief Coroner introduced new guidance (No. 46) surrounding the obtaining of evidence regarding social media use. This intersects with the Online Safety Act 2023 coming into force on 1 April 2024.  As background, Schedule 5 of the Coroners and Justice Act 2009 gives a coroner the power to require the production of evidence or documents that relate to an investigation. Such notices can be sent directly to social media providers, or to the Office of Communications (Ofcom), and can be issued in connection with the death. However, Ofcom can only provide information that it holds or controls, so its information is limited.  Coroners may face difficulty in establishing to whom Schedule 5 notices should be sent to in order to obtain information about social media use. They may also struggle to frame notices in a way that elicits the most useful information, unless they are advised by someone with knowledge of social media and its evolving trends.  To assist coroners accessing social media information that is relevant to an investigation into the death of a child, the Online Safety Act (OSA) 2023 includes new provisions extending the information that can be obtained and disclosed by Ofcom to coroners.  Section 101  Section 101 grants Ofcom the power to obtain the relevant information from service providers in respect of a living person’s use of a regulated service that is linked to an investigation into a child’s death (e.g. someone’s social media account that demonstrates bullying of a deceased child), or the use of a regulated service by the child whose death is under investigation (e.g. where a child has been exposed to harmful content via a social media platform’s algorithms).  Examples of information Ofcom can obtain from regulated services include:  <ul> <li>Content encountered by the child by means of the service;</li>  <li>How the content came to be encountered by the child (including the role of algorithms or particular functionalities);</li>  <li>How the child interacted with the content (for example, by viewing, sharing, or storing it or enlarging or pausing on it); and</li>  <li>Content generated, uploaded, or shared by the child.</li> </ul>  Section 163  Under this provision, Ofcom may prepare a report for use by the coroner following the receipt of a Schedule 5 notice and can do so using its s101 powers to require regulated services to provide information that may assist with Ofcom’s report.  Practical considerations  Coroners have previously been advised (Guidance No. 44) that they should only use Schedule 5 notices to compel disclosure where the disclosure is necessary and, unless there are exceptional circumstances, should attempt to obtain the disclosure by agreement before issuing a notice. To facilitate Ofcom exercising their s101 OSA powers, coroners will have to issue a formal Schedule 5 notice.  The new guidelines advise informal engagement with Ofcom beforehand to discuss the reasonableness of the request, the coroner’s proposed timeframe, and how to structure the request so the coroner can obtain relevant, sufficient, and proportionate information, based on Ofcom’s knowledge and experience of the sector. Ofcom can contact multiple providers on a coroner’s behalf, which increases administrative efficiency, and can advise the coroner on how to frame the request so the information can be understood without the need for specialist analysis. For example, instead of requesting the code for a social media company’s recommender system, it might be preferable in a particular case to seek a description of how the recommender system operates.  Coroners will need a adopt a case-by-case approach as to whether they choose to seek information from services directly or to approach Ofcom, weighing the benefits of each. Some investigations may already have contact with a regulated service through Interested Persons, making it possible to obtain information directly without difficulty, for instance, or Ofcom’s information gathering powers may be limited by barriers such as foreign law.  The new guidance also advises coroners to be mindful that social media companies are likely to hold extensive material about any relevant individual and that requests could return large volumes of information. In order to be effective, Schedule 5 notices should therefore:  <ol style="list-style-type:lower-alpha"> <li>Identify the child in connection with whose death a notice relates;</li>  <li>Identify a particular service or various services of interest (this information is likely to be available to coroners through discussions with the family and/or other Interested Persons);</li>  <li>Describe the information sought, including what personal information is needed. If there is personal information that is likely to be returned in the context of the request that is not relevant, confirm that such information can be omitted or redacted;</li>  <li>Describe the timeframe within which the information is sought to enable a proportionate search to be conducted and to prevent the coroner from being overwhelmed with irrelevant information; and,</li>  <li>Set a reasonable deadline for Ofcom to respond, which takes into account the time it will take for Ofcom to provide their own notice to the relevant services and obtain the information.</li> </ol>  Commentary  The new guidance is a big step forward in a world of growing technology where social media may play a part in the investigation into a death. There is a concern, however, in limiting Ofcom’s s101 powers to investigations into the death of a child, rather than any death. Although coroners can still contact social media providers directly for information about an adult’s social media use, the efficiency of an investigation into the death of an adult may be limited in lacking the ability to delegate this to Ofcom under the OSA. Whether this is extended in the future is yet to be seen, but until then, the guidelines are a welcome improvement to the inquest landscape that recognises the prevalence of social media in the lives and deaths of young people.

Case note on LZL v HYC

Facts  <ol> <li>The claimant and first defendant are partners. Together, they have five children between the ages of six and 23.</li>  <li>The claimant was a passenger whilst being driven by the first defendant. The first defendant crashed the car.</li>  <li>The claimant suffered a traumatic brain injury.</li>  <li>The claimant filed a claim against the first defendant on 25 October 2023.</li>  <li>The claimant lacks capacity to conduct proceedings. The claimant’s litigation friend is the first defendant’s mother, HXS. The claimant has lived with HXS since she was 14 years old. HXS has acted as the litigation friend since 3 September 2023.</li>  <li>On 6 June 2023, the second defendant, an insurer, made a voluntary interim payment of £100,000 to the claimant.</li>  <li>On 20 December 2023, HHJ Siddique approved the interim payment in order that the payment may be used for rehabilitation or injury related purposes. He further ordered that the claimant apply to the Court for the appointment of a Professional Deputy by 12 January 2024.</li>  <li>At the date of the hearing, on 11 March 2024, an application had still not been made. HXS failed to provide the relevant documents to the claimant’s solicitors to enable an application to be made. HXS did, however, bring the required documentation to the hearing.</li>  <li>Because a deputy had not been appointed, the claimant had been unable to utilise the interim payment to acquire a suitable property to live in.</li>  <li>The claimant was opposed to the making of an application of a deputy because she was distrustful of those outside the family.</li> </ol>  Issue  11. Whether the Court should appoint an alternative litigation friend. Absent suitable alternatives, the only appropriate candidate was the Official Solicitor.  Law  <ol start="12"> <li>Farbey J considered the legal framework.</li>  <li>CPR 21.2(1) stipulates that a litigation friend may act as litigation friend if they can fairly and competently conduct proceedings on behalf of the protected party and have no interest adverse to that of the protected party.</li>  <li>The White Book commentary indicates at 21.4.1, that a (prospective) litigation friend having an interest in the litigation is not fatal to their acting as such so long as their interest is not adverse to the interests of the protected party.</li>  <li>CPR 21.7 stipulates that the court may terminate and appoint litigation friends.</li> </ol>  Decision  <ol start="16"> <li>Farbey J considered that the following factors weighed in favour of appointing an alternative litigation friend to HXS: <ul> <li>HXS lacked insight into the need for a professional deputy; and</li>  <li>HHJ Siddique’s order had been breached in part because HXS failed to supply relevant This suggests HXS may not be able to competently conduct the litigation.</li> </ul> </li> </ol>  <ol start="17"> <li>Farbey J considered that the following factors weighed in favour of permitting HXS to remain litigation friend: <ul> <li>HXS had now supplied the relevant documentation so that the claimant’s solicitors could apply for the appointment of a professional deputy;</li>  <li>There was no evidence HXS could not safeguard the claimant’s interests despite being the defendant’s mother;</li>  <li>HXS would likely be better able to facilitate the claimant’s engagement with the litigation process than an Official Solicitor.</li> </ul> </li> </ol>  <ol start="18"> <li>On balance, Farbey J concluded that HXS should be given one final chance to remain litigation friend. If an application for a professional deputy was not made within 14 days (or some other reasonable period as agreed by counsel), then the Official Solicitor was to replace HXS as the litigation friend.</li> </ol>  Comment  <ol start="19"> <li>For those considering whether a given individual would make for a suitable litigation friend, the analysis should focus on the specific circumstances of the case and not merely the existence of a connection between litigation friend and defendant. Here, even in the face of the ongoing breach of a Court Order, Farbey J took a pragmatic approach and allowed for the litigation friend to continue to act.</li> </ol>

Parklane Plowden expand Family Team with KC

Parklane Plowden’s Family Team are delighted to welcome Martin Kingerley KC as a door tenant.  Martin was called to the Bar in 1999, and took silk in 2020. He was then appointed a Deputy High Court Judge in 2023.  An experienced family law practitioner, Martin specialises in the law relating to children, undertaking work in the most serious and complex public law cases relating to allegations of non-accidental injury and death, serious sexual harm, factitious/induced illness and honour-based abuse.  Martin is highly ranked in both the leading legal directories, with Chambers and Partners describing him as a barrister who “knows all there is to know about children's law” and who is “quite excellent in terms of his advocacy skills.”  “We’re delighted that Martin has joined as a door tenant, bringing a wealth of family law experience. His specialist knowledge of the law relating to children will provide a further boost to our already preeminent position in this field.” Stephen Render, Senior Practice Director.  For further information on the group’s services and expertise, please contact <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/" target="_blank" rel="noreferrer noopener">Stephen Render</a>, Senior Practice Director to the Family, Chancery & Commercial Teams on 0113 228 5000.

Richard Harrington, Imogen Gray, Lucy Evanson, and James Kapadia start their second six and accept instructions

Parklane Plowden is pleased to announce that Richard Harrington, Imogen Gray, Lucy Evanson, and James Kapadia have started their second six and are available to take instructions.  Richard started pupillage in October 2023 as a family pupil under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/farzana-tai/" target="_blank" rel="noreferrer noopener">Farzana Tai</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/giorgia-sessi/" target="_blank" rel="noreferrer noopener">Giorgia Sessi</a>. Richard is available to take instructions from April 2nd.  You can read more about Richard’s practice, <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-harrington-pupil/" target="_blank" rel="noreferrer noopener">here</a>.  Imogen started pupillage in October 2023 as a commercial law pupil under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-harrison/" target="_blank" rel="noreferrer noopener">Sarah Harrison</a>. Imogen is available to take instructions from April 2nd.  You can read more about Imogen’s practice, <a href="https://www.parklaneplowden.co.uk/our-barristers/imogen-gray-pupil/" target="_blank" rel="noreferrer noopener">here</a>.  James Kapadia started pupillage in October 2023 as a civil law pupil under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-nossiter/" target="_blank" rel="noreferrer noopener">Tom Nossiter</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/gareth-price/" target="_blank" rel="noreferrer noopener">Gareth Price</a>. James is available to take instructions from April 2nd.  You can read more about James’ practice, <a href="https://www.parklaneplowden.co.uk/our-barristers/james-kapadia-pupil/" target="_blank" rel="noreferrer noopener">here</a>.  Lucy started pupillage in October 2023 as a civil law pupil under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/elizabeth-hodgson/" target="_blank" rel="noreferrer noopener">Elizabeth Hodgson</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/kristian-mills/" target="_blank" rel="noreferrer noopener">Kristian Mills</a>. Lucy is available to take instructions from April 3rd.  You can read more about Lucy’s practice, <a href="https://www.parklaneplowden.co.uk/our-barristers/lucy-evanson-pupil/" target="_blank" rel="noreferrer noopener">here</a>.  To instruct Richard, Imogen, James or Lucy please contact: <a href="mailto:clerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">clerks@parklaneplowden.co.uk</a> or call us on 0113 228 5000.

CCC v Shefﬁeld Teaching Hospitals NHS Foundation Trust – Case Note

Citation: [2024] 1 WLR  High Court of Justice, King’s Bench Division  Judge: Ritchie J  Background:  This was a clinical negligence claim where the claimant made a single Part 36 offer comprising a lump sum and a periodical payments order (PPO), which the defendant did not accept. Following a trial on quantum, the judge awarded the claimant a lower lump sum, but a higher PPO than her offer. The claimant then sought an order for indemnity costs, the additional award and interest on costs and damages under Part 36.17.  She contended that her judgment was at least as advantageous as her offer.  The Claimant’s case:  The claimant contended that the judgment obtained was at least as advantageous as her Part 36 offer, arguing that the total value of the award (if capitalised, using the agreed life multiplier) was better in money terms than the total value of her offer (if capitalised, using the agreed life multiplier).  Judgment:  The court ruled that the judgment obtained was not at least as advantageous as the claimant's Part 36 offer, as the lump sum part of the judgment was not better in money terms than the lump sum part of the offer.  The court found that there was no unfairness to the Claimant, as she could have made Part 36 offers as to each part, as individual offers.  It was up to the Claimant as to how the offer was made.  In this case she would have beaten her PPO offer and the Part 36 consequences would follow, as to that element.  The system for determining the value of a Part 36 offer should be ‘kept simple and clear’ in order to encourage good practice by using a series of sanctions and rewards.  In short, it was found (paragraph 18):  “For an offeror to beat her Part 36 combined offer, she has to beat both parts.  If she wishes protection for each part then individual offers can be made.”  Conclusion  This is a useful case, which clarifies a point for which there was previously no authority. It may lead to more offers being made comprising of the individual elements in the future.

Non-party costs order (“NPCO”) against credit hire company

Kindertons Limited v (1) Georgina Murtagh (2) Esure Services Limited [2024] EWHC 471 (KB)  Introduction  <ul> <li>This case concerns a non-party costs order made against a  credit hire company, Kindertons Limited (“Kindertons”), in favour of an insurer, Esure Services Limited (“Esure”) and is a High Court decision by Turner J, handed down on 5 March 2024.</li> </ul>  Background  <ul> <li>On 20 February 2019, a minor collision occurred when Georgina Murtagh carelessly drove her Volkswagen Polo into gentle contact with the rear of Serhat Ibrahim’s Audi A5.</li>  <li>Mr Ibrahim’s claim for the costs of repairs was in the sum of £2,543.80.</li>  <li>Two days after the accident, a representative by the name of Rachel telephoned Mr Ibrahim to discuss providing him with a replacement vehicle.  During the telephone conversation, Mr Ibrahim described the damage to his vehicle as: “…not a lot of damage.  It’s just the back bumper.  It looks a bit out of line…”.</li>  <li>Notwithstanding his modest description of the damage, Mr Ibrahim was readily persuaded that he should not be driving the car and that he ought to hire an alternative from Kindertons.</li>  <li>A report later provided by JP Morris assessors on behalf of Kindertons concluded that Mr Ibrahim’s Audi had suffered no damage in the accident that would have rendered it unroadworthy. </li>  <li>Rachel told Mr Ibrahim that if the other driver’s insurer, Esure, should offer to provide him with a less expensive alternative hire car he should “just tell them Kindertons are dealing with the claim and end the call from there”. </li>  <li>On 23 February 2019, Mr Ibrahim entered into a credit hire agreement with Kindertons for the hire of a Jaguar XF (later replaced with a Mercedes Benz C250 on the same terms) at a rate of £345.08 per day.  The period of hire was 33 days.</li>  <li>Also on 23 February 2019, Mr Ibrahim entered onto a credit hire agreement with Kindertons in respect of repair, recovery and storage facilities.</li>  <li>On 25 February (two days after the initial hire period commenced and before Mr Ibrahim entered into the second hire agreement) Esure sent him a letter offering an alternative replacement vehicle at no cost at all to him but at a cost to Esure of £63.45 per day. </li> </ul>  The claim  <ul> <li>Proceedings were brought by Mr Ibrahim and his wife, Sylvia, against Miss Murtagh limited to £20,000.</li>  <li>All but £50 of Mr Ibrahim’s special damages claim arose under the credit agreements. </li>  <li>In addition, both Mr and Mrs Ibrahim claimed general damages in respect of personal injury, the combined value of which could not have exceeded £3,192.25 having regard to the value of Mr Ibrahim’s special damages claim and the overall claim limit.</li>  <li>Miss Murtagh denied liability and the matter proceeded to a fast track trial.</li> </ul>  The trial  <ul> <li>The matter came before Mr Recorder Berkley KC, who found that whilst he was satisfied that a collision had occurred, (i) the damages claimed in respect of the repairs and hire charges had not been caused in the accident; (ii) Mrs Ibrahim was not in the vehicle at the time; (iii) both Mrs Ibrahim and her husband had been fundamentally dishonest in saying that she had been.</li>  <li>Mr Ibrahim did not take up the offer.</li>  <li>Mr and Mrs Ibrahim were ordered to pay Miss Murtagh’s costs in the sum of £12,000.</li>  <li>Mr Ibrahim promptly disappeared, leaving the costs bill unpaid.</li> </ul>  The non-party costs claim  <ul> <li>Esure applied for a non-party costs order (“NPCO”) against Kindertons.</li>  <li>The application ought to have been heard by Mr Recorder Berkley KC but instead came before Mr Recorder Gallagher.</li>  <li>Para. [29]: “It is regrettable that the trial judge did not hear the costs application and that neither side took the issue below.  Particular care should be taken not to list NPCO applications to be heard by a judge who did not sit on the trial without a compelling reason.”</li> </ul>  The decision below  <ul> <li>The parties agreed that the Recorder had the power to make a NPCO.  The issue was whether he should have exercised his discretion to exercise that power in the circumstances of the case (para. [30]).</li>  <li>The statutory foundation of this power is to be found in section 51(3) of the Senior Courts Act 1981 which provides as follows: “(3) The court shall have full power to determine by whom and to what extent costs are to be paid”.</li>  <li>The Recorder correctly referred to CPR 44.16(2) as identifying the circumstances in which an NPCO can be made in the context of Qualified One-way Costs Shifting [QOCS]. </li>  <li>In addition, CPR 44 PD 12 was noted to provide that “[e]xamples of claims made for the financial benefit of a person other than the claimant…within the meaning of rule 44.16(2) are subrogated claims and claims for credit hire…” and to state at para. 12.5(b) that “the court may, as it thinks fair and just, determine the costs attributable to the claims for the financial benefit of persons other than the claimant”. </li>  <li>Noting that Mr and Mrs Ibrahim were found to have no viable residual claims which might have been sustained if not for the finding of fundamental dishonesty, the Recorder found that the claim included a claim which was made for the financial benefit of Kindertons and awarded Esure 80% of their costs against Kindertons.</li> </ul>  Dismissing the appeal on all grounds…  <ul> <li>The whole purpose of Kindertons providing credit hire facilities is to make a commercial profit out of the client’s legal claim (para. [39]).</li>  <li>Kindertons stood to gain substantially from the claim brought in Mr Ibrahim’s name and the price of the services they provided under the contracts with Mr Ibrahim very significantly exceeded the value of the personal injury and “undocumented miscellaneous expenses” claims brought by him and his wife (para. [42]).</li>  <li>It followed that Kindertons had a very strong financial stake in the litigation and that “any benefit to Mr Ibrahim in pursuing the claim for hire charges was all but illusory” (para. [43]).</li>  <li>In relation to the contention that there was no proper basis for the judge’s finding that the appellant controlled the litigation, the court stated: “There is a danger that the concept of “control” is wrongly treated as if it were a traffic light, governing the exercise of the court’s discretion to make a non-party costs order, which is showing either red or green.  Control is almost invariably a matter of degree.  As a concept, it is relevant to the extent that, in any given case, the greater the level of control exercised by the non-party the more likely it will be that the court will exercise its discretion in favour of making a NPCO” (para. [44]).  </li>  <li>The court quoted, with approval, Deutsche Bank AG v Sebastian Holdings [2016] 4 W.L.R. at para. 62: “We think it important to emphasise that the only immutable principle is that the discretion must be exercised justly.  It should also be recognised that, since the decision involves an exercise of discretion, limited assistance is likely to be gained from the citation of other decisions at first instance in which judges have or have not granted an order of this kind” (para. [45]).</li>  <li>On the facts of the case, there was a high degree of control: “The contractual terms identified above tied Mr Ibrahim into bringing a claim and continuing it at the risk of incurring serious financial consequences in the event that he were to fail to comply. It matters little, if anything, that such consequences were not, in the event, visited upon Mr Ibrahim. It is the threat and not the execution of repercussions which forms the usual basis for control” (para. [46]).   Furthermore, by reference to the phone call between Mr Ibrahim and Rachel, the court was satisfied that Kindertons “wished to choreograph the progress of the litigation to preclude [Esure compromising the interests of Kindertons]” (para. [47]).</li>  <li>In respect of Kindertons’ contention that Esure needed to have established that Kindertons’ involvement resulted in them incurring more costs in the litigation than they would have done in any event (the “but for” test), the court held that there is no generally applicable guidance on causation applicable to all NPCO applications and that Lord Briggs in XYZ v Travelers Insurance Co Ltd [2019] 1 W.L.R. 6075 was not intending to lay down any such guidance (paras. [51-52]). </li>  <li>The position of Kindertons was different to liability insurers.  It “involved itself voluntarily and enthusiastically in the claims after the accident giving rise to it”.  Its involvement was “a matter of choice in the expectation of profit specifically related to the legal proceedings to follow” (para. [54]).</li>  <li>The intermeddler cases to which Lord Briggs referred in Travelers fell to be distinguished: “It could not be said that it was none of Kindertons’ business to involve itself in the progress of the litigation.  On the contrary, it was very much its business both in a literal and metaphorical sense” (para. [56]).</li>  <li>On the circumstances of the case (“and without seeking to lay down any general rule relating to the appropriateness of NPCOs against credit hire companies”), the Recorder was right to conclude that it was just to make the order and he was not obliged to make any specific finding in respect of "but for" causation before so doing. It was neither fair nor just that it should be permitted to exercise a degree of control over the most valuable aspect of Mr Ibrahim's claims on the basis of instructions from Rachel the specific intention of which was to neuter any attempts by Esure to limit its exposure to the hire claim, without exposing itself to the potential consequences of a NPCO (para. [57]).</li>  <li>By ordering Kindertons to pay 80% of the costs, “the Recorder was exercising his discretion appropriately to reflect the proportionate benefit which it stood to obtain if the claim for hire charges had succeeded. An attempt mathematically to calculate on a "but for" basis of causation would simply not have reflected the unfairness of allowing Kindertons a free ride on the coat tails of Mr Ibrahim's claim” (para. [58]).</li>  <li>Regarding Kindertons’ contention that Esure should have given notice that it would or might pursue a non-party costs order against it, the court held that “Kindertons would or should have known only too well that the nature of its business put it at risk of a NPCO application. The wording of CPR 44 PD 12.2, insofar as it relates to claims for credit hire, provided express warning of this; if any such were needed. I can discern no prejudice to Kindertons in the timing of Esure's application” (para. [61]).</li>  <li>Regarding the argument that the finding of dishonesty made it unjust to make a NPCO against Kindertons, the court held as follows: “Kindertons voluntarily assumed the risk that Mr and Mrs Ibrahim would turn out to be dishonest….The level of scrutiny which would be applied to any aspect of the claim which it was seeking to adopt was a matter for Kindertons…it may well be that the cost of exercising higher levels of scrutiny would be disproportionate to the money thereby saved but this is a commercial decision the consequences of which must be borne by Kindertons” (para. [63]).</li>  <li>Under the subheading ‘Discretion’: “On the facts of this case, I too would have made a NPCO against Kindertons had the matter come before me at first instance for the reasons I have given. But even if I had not been minded to make such an order, I would still have concluded on appeal that the approach taken by the Recorder to the exercise of his discretion fell comfortably within the generous parameters afforded to him. Appellate courts will not lightly interfere with such decisions” (para. [65]).</li> </ul>

Case note on Hadley v. Przybylo

‘A costs (Mc)cloud with a silver lining’  The case of Hadley v. Przybylo [2024] EWCA Civ 250<a id="_ftnref1" href="#_ftn1">[1]</a> arose out of a road traffic accident in which the claimant suffered catastrophic injuries. At a cost budgeting hearing before Master McCloud, the parties were ordered to engage in ADR in respect of the future costs. Following ADR only one item of future costs remained in dispute – namely a figure of £68,400, claimed within the ‘Issues and Statements of Case’ phase, in respect of solicitor attendance at case management meetings with medical and other professionals, and for meetings with financial and Court of Protection deputies (said to be part of maintaining the Schedule of Loss).  In a judgment dated 22nd June 2023<a href="#_ftn2" id="_ftnref2">[2]</a>, Master McCloud considered that she was being called upon to decide a point of principle and determined that solicitor (or fee earner) costs of attending (numerous) rehabilitation case management meetings were not in principle progressive of the litigation and that the information required could be obtained by way of an occasional letter to the relevant case manager or deputy or by obtaining documents for later disclosure.  Accordingly, she disallowed some £52,000 worth of future costs, but gave ‘leapfrog’ permission to the claimant to appeal to the Court of Appeal.  In a single judgment dated 28th February 2024 and to which all members of the Court contributed, it was held that the Master had been wrong to conclude that the costs of attending rehabilitation case management meetings and the like were irrecoverable in principle as costs.  Section 51(1) of the Senior Courts Act 1981 provides for a party to recover the costs of an incidental to the proceedings and the case of In re Gibson’s Settlement Trusts [1981] Ch 179 is authority for the proposition that in order to be recoverable, costs must related to something which (i) proved of use and service in the action; (ii) was relevant to an issue; (iii) was attributable to the defendant’s conduct (i.e. that which gave rise to the cause of action in the first place).   Therefore, the recoverability of the costs of attending rehabilitation case management meetings and the like will depend on the application of three criteria in In re Gibson’s Settlement Trusts (sometimes summarised as utility, relevance and attributability) and the reasonable and proportionate costs of a claimant’s costs that meet such criteria will generally be recoverable.  The precise amount of recoverable time spent by a solicitor in respect of rehabilitation will always depend on the facts of the case.  Takeaway: Both claimants and defendants will doubtlessly regard the judgment in this case as offering something of a silver lining!  Claimants on the basis that there is no bar to claiming the costs of attending rehabilitation meetings and defendants on the basis that ‘routine’ attendance by claimant solicitors cannot be assumed to be recoverable.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a id="_ftn1" href="#_ftnref1">[1]</a> <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2024/250.html" target="_blank" rel="noreferrer noopener">https://www.bailii.org/ew/cases/EWCA/Civ/2024/250.html</a>  <a id="_ftn2" href="#_ftnref2">[2]</a> At [2023] EWHC 1392 (KB) see: <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2023/1392.html&query=(2023)+AND+(EWHC)+AND+(1392)" target="_blank" rel="noreferrer noopener">https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2023/1392.html&query=(2023)+AND+(EWHC)+AND+(1392)</a>

Latest News

Uncategorised

23 July 2025

Court Affirms Gender Reassignment Surgery as a Joint Financial Responsibility – JY V KF {2025} EWFC 195

Read time: 2 m

Cookie	Duration	Description
cookielawinfo-checkbox-analytics	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional	11 months	The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy	11 months	The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.

Your Shortlist (0)