Jon Comlay, Author at Parklane Plowden

Parklane Plowden is recruiting

The Civil Team at Parklane Plowden is seeking to recruit practitioners of seven years’ call and above.  Applications can be submitted in the strictest confidence and are encouraged from those that have experience in <a href="https://www.parklaneplowden.co.uk/expertise/personal-injury-barristers/" target="_blank" rel="noreferrer noopener">Personal Injury</a>, <a href="https://www.parklaneplowden.co.uk/expertise/clinical-negligence-barristers/" target="_blank" rel="noreferrer noopener">Clinical Negligence</a> and particularly in <a href="https://www.parklaneplowden.co.uk/expertise/inquests-inquiries-barristers/" target="_blank" rel="noreferrer noopener">Inquests</a>. Applications are also particularly encouraged from those wishing to be based in Newcastle.  Chambers has premises in Leeds and Newcastle, but has a national profile. It is consistently recognised by Chambers and Partners and the Legal 500 as a leading set across its core practice areas, last year winning Chambers of the Year at the Yorkshire Legal Awards for the third year running, and is described as “a regional heavyweight”, “forward thinking” and “friendly”.  With new and refurbished offices and expanding work, Chambers is looking to recruit.  Applications are made via our Tenancy Application Form, which can be requested from <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/" target="_blank" rel="noreferrer noopener">Andrew Sugarman</a>, Head of Recruitment, at <a href="mailto:andrew.sugarman@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">andrew.sugarman@parklaneplowden.co.uk</a>. Applications are invited to be submitted by 29th April 2024.

Bronia Hartley Appointed Court Examiner

We are delighted to announce that Bronia Hartley has been appointed by the Lord Chancellor as a Court Examiner for a period of five years from 1 April 2024.  Court Examiners are able to take depositions where a court has ordered a witness to be examined before trial as to their oral or documentary evidence under Rule 34.8 where, for example, someone is too ill to attend the trial, or where a foreign court requests evidence from a person who resides in this jurisdiction and not in the jurisdiction of the foreign court (pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1974 and the Hague Convention).  The role is quasi-judicial in that the Court Examiner takes the evidence as a judge would and certifies the transcript of the recording as correctly reflecting the evidence given.  Court Examiners work independently to fulfil the requirements of the role.  Bronia will act as a Court Examiner alongside her day-to-day practice at the Bar.   You can read the Ministry of Justice’s formal announcement, <a href="https://www.gov.uk/government/news/8-court-examiners-appointed" target="_blank" rel="noreferrer noopener">here</a>.

Success at Trial for Leila Benyounes in Birth Injury Clinical Negligence

Leila Benyounes has succeeded at trial in a birth injury clinical negligence claim, at which breach of duty and causation were in dispute.  The claim involved serious injuries suffered by the Claimant during the birth of her first child.  During the delivery, the Claimant suffered a significant and life-threatening post-partum haemorrhage, and she sustained multiple tears including a third-degree internal perineal tear. The Claimant required blood and plasma transfusions and suffered a prolonged recovery period with significant pain and the development of a psychological injury.  The Claimant’s case, as found by the judge at trial, was that she sustained an uncontrolled delivery due to the negligence of the Defendant. Liability had been denied by the Defendant throughout the claim.  The trial was heard over five days in which disputed oral expert evidence on liability, causation, and quantum from six experts was heard, including in the disciplines of midwifery and obstetrics.  Leila acted for the Claimant throughout this successful claim, including at trial, in respect of pleadings and conducting conferences with the experts. It was successfully argued that the Defendant was negligent in the particular circumstances of the delivery, based on the expert evidence heard on breach of duty and causation, and it was found that the negligence materially contributed to the Claimant’s injuries.  The Claimant was successful in her causation and quantum arguments resulting in her beating her own Part 36 offer and obtaining favourable consequences for her damages, interest, and the Claimant’s costs pursuant to Part 36.  Leila was instructed by Hayley Collinson at Hudgells Solicitors.  Leila is a specialist in the fields of Clinical Negligence and Inquests. She is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Clinical Negligence and Inquests and Inquiries. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>.

Miah v Jones and Aviva Insurance

Citation: [2024] EWHC 92 (KB)  High Court of Justice, King’s Bench Division - Leeds District Registry  Judge: His Honour Judge Gosnell, sitting as a Judge of the High Court  Background:  The Claimant, Mr. Mohammed Mashuk Miah, was struck by a vehicle driven by Dr. Hayley Jones (the First Defendant) after the Claimant alighted from a bus on a rural road in North Wales.  It was dark at the time and there was no street lighting in the area.  The Claimant was wearing dark clothing.  The Claimant suffered significant head and orthopaedic injuries and became a protected party.  He had little or no recollection of the collision.  The Accident  There was little dispute as to the broad facts of the accident, not least as CCTV was available from the bus.  There was limited dispute as to details such as the precise speed of the First Defendant’s vehicle (though it was within a fairly narrow band) and the precise distances involved.  A photograph of the location appears in the Judgment, as taken by one of the accident reconstruction experts:  <figure class="wp-block-image size-full"><img src="https://www.parklaneplowden.co.uk/app/uploads/2024/03/JH-article-picture.jpg" alt="" class="wp-image-9525"/></figure>   Prior to the accident, the Claimant had alighted from a bus that had stopped directly opposite the Madiha Tandoori Restaurant (the restaurant seen to the left of the road), even though this was not an official bus stop. After the bus departed, the Claimant briefly waited and then proceeded to walk across the road from the south side to the north side (from the right of the photo to the left), seemingly with the intention of visiting the restaurant. In so doing there was a collision with the First Defendant’s vehicle which was travelling easterly (away from the photographer).  The area in question would not have been visible at all to the First Defendant until about 380m before, once she had travelled over the brow of a hill.  The parties’ cases:  The Claimant alleged that the First Defendant was traveling too fast, failed to anticipate that the bus might have been dropping off passengers, should have braked, kept a proper lookout, and used her main beam rather than dipped headlights.  The Defendants (the Second Defendant being the First Defendant’s insurer) argued that the First Defendant was driving at a reasonable speed for the location; that it was not reasonable for her to anticipate that someone would cross the road from behind the bus; and that she reacted as soon as it was reasonably possible once the Claimant was visible.  Judgment:  The factual disputes between the parties were quite narrow, but the court made limited findings of fact.  The interpretation of the facts as to negligence was the more important feature.  The court found that the First Defendant was not negligent for driving at just below the national speed limit (60 mph) in a rural area at night.  The court considered whether the ‘hazard’ of the bus should have caused the First Defendant to adjust her driving.  The judge ultimately concluded that a reasonably prudent motorist could not have identified the stationary bus as a hazard from the distance at which the First Defendant was initially approaching and that she could not have seen the Claimant in time to prevent the collision. The Judgment takes into account the visibility/ conditions, the speed of the First Defendant’s vehicle, and the actions of both the First Defendant and the Claimant leading up to the accident.  The court considered guidance from Cavanagh J, in Chan v Peters and Advantage Insurance Company Limited [2021] EWHC 2004 (QB), in relation to collisions between cars and pedestrians, including that:  <ul> <li>A defendant will be liable in negligence if they failed to attain the standard of a reasonably careful driver and if the accident was caused as a result.</li>  <li>The burden of proof, on the balance of probabilities, rests with the claimant.</li>  <li>The standard of care is that of the reasonably careful driver, who is armed with common sense and experience of the way pedestrians, particularly children, are likely to behave.</li>  <li>If a real risk of danger emerging would have been reasonably apparent to such a driver, then reasonable precautions must be taken.</li>  <li>If the danger was no more than a mere possibility, which would not have occurred to a reasonably careful driver, then there is no obligation to take extraordinary precautions.</li>  <li>Drivers must always bear in mind that a motorcar is potentially a dangerous weapon.</li>  <li>Drivers are taken to know the principles of the Highway Code.</li>  <li>Trial judges should be cautious in making findings of fact of unwarranted precision when that was not justified by the evidence, on the basis that treating what could in truth be no more than ‘guessimates’ as if they were secure findings of fact.</li>  <li>If there are inherent uncertainties about the facts is dangerous to make precise findings. This may well mean that the party who bears the burden of proof is in difficulties. But that is one of the purposes behind a burden of proof; that if the case cannot be demonstrated on the balance of probabilities, it will fail.</li>  <li>The defendant is not to be judged by the standards of an ideal driver, nor with the benefit of ‘20/20 hindsight’.</li> </ul>  ‘Coincidence of location fallacy’  The ‘coincidence of location fallacy’ refers to a situation where a defendant's earlier negligence places them at a location where an accident occurs, but that earlier negligence is not causative of the accident itself.  It was suggested in this case that if the First Defendant had driven more slowly along the stretch of road from the brow of the hill to the accident location, then the Claimant would have been able to cross the road without incident.  The concept of ‘coincidence of location fallacy’ was explained by Jackson LJ in Gray v Botwright [2014] EWCA 1201. He illustrated it with a hypothetical scenario where a motorist drives at excessive speed between two points but then slows down to a proper speed and is involved in a collision that is not their fault. The motorist's earlier speeding did not cause the collision, even though it led to them being at the collision point at that time. The fallacy lies in incorrectly attributing the cause of the accident to the earlier negligent act, rather than to the circumstances prevailing at the time of the accident.  In this case, the Claimant argued that the duty of care started when the First Defendant came over the brow of the hill and saw the bus, which continued until the impact occurred. The Claimant's case was that a reasonably prudent driver would have contemplated the risk that someone might have alighted from the bus to cross the road and would have slowed down accordingly, and so the fallacy did not arise.  The court found that expecting the First Defendant to recognize the presence of a stationary bus from 370 - 390 meters away at night as a hazard represented a counsel of perfection and was not a reasonable expectation for a prudent motorist.  The court concluded that the First Defendant did not fall below the standard of a reasonably prudent driver by failing to identify the presence of a stationary bus from such a distance or to infer that a passenger had alighted and was about to cross the road. By the time that the First Defendant was able to identify the vehicle as a bus, there was no reason to regard it as a hazard.  The Claimant himself could not be identified in the dark, wearing dark clothing.  Therefore, the court did not find that it needed to consider any potential ‘coincidence of location fallacy’ further in this case, since there was no negligence at any stage by the First Defendant.   Conclusion  This is an interesting case, with the facts that were broadly agreed.  What was in dispute was whether the largely agreed facts gave rise to negligence.  It is a useful example of how a court may approach liability in road traffic accidents involving pedestrians.

Land purchased by family members for business purposes not subject to Stack v Dowden presumption

Case comment on Williams v Williams [2024] EWCA Civ 42  In the recent case of Williams v Williams the Court of Appeal looked at the question of whether the presumption laid down in Stack v Dowden [2007] UKHL 17 (namely that property purchased in joint names is also held as joint tenants in equity) applies more broadly than simply where that property is purchased by cohabitants or persons in the “domestic consumer context”.  Nugee LJ giving the judgment on behalf of the court, held that whilst it may apply more broadly it is absolutely clear it does not apply to properties bought for business purposes, even where the co owners are family members. This is because there is a clear and historic presumption that where property is bought for business purposes (whether by a partnership or not) the parties do not intend survivorship to operate, and therefore necessarily they must intend to hold as tenants in common.  Notably, the court commented there might be “strong arguments” in favour of the Stack presumption applying where property is purchased for business purposes by a couple in an intimate relationship, given the inevitable interplay of “mutual affection and sharing of both financial and other resources rather than commercial considerations” (para 54). Arguably, this simply reflects the likelihood that the nature of the relationship itself will amount to an effective rebuttal of the presumption against survivorship in those circumstances.  It is of assistance that the court reiterated that the Stack presumption of joint beneficial tenancy in the absence of an express declaration of trust to the contrary, is not simply a result of the operation of the mantra of ‘equity follows the law’ but based on two much more fundamental justifications arising from context, as was made clear in Jones v Kernott:  <ol> <li>“The first is implicit in the nature of the enterprise. If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise." (Jones at para 19)</li>  <li>Secondly, that not only do parties in “a trusting personal relationship” generally not hold each other to account financially, but in many cases it is of great practical difficulty to attempt to do so. (Jones  para 22)</li> </ol>  The facts in Williams v Williams  In Williams, the business property in question comprised a two-part family farm, Crythan Farm and Cefn Coed Farm. Both purchased in the joint names of Mr and Mrs Williams and their son Dorian who ran the farm as a partnership of equal shares formed by deed. This was an unusual case in that the parties agreed that the intention was for all three to own equally (they all having contributed equally including by virtue of a mortgage in joint names). The issue was as to mechanism and whether Mrs Williams’ beneficial share had, following her death, accrued to the others by virtue of survivorship, or whether it passed according to the terms of her will.  The Court noted the long standing presumption that those acquiring property for business purposes do not intend survivorship to operate and concluded that where property is owned by a couple and a third party, particularly where there is evidence of accounting between the parties (such as by way of partnership management accounts or the taking of rents) the appropriate starting point is that the property is owned as tenants in common.  Fundamentally, in Williams, the context was “very different” to that in Stack in that whilst it in part provided a home for Mr and Mrs Williams it was “primarily a business which provided their livelihood” (para 54).  Key takeaways  This is a particularly important decision for the many disputes involving family businesses which extend beyond simply cohabitants or husband and wife and incorporate co-ownership of land with other family members. These are very often property holdings which have the added complexity of encompassing dual-use land such as farmland incorporating a family home (such as in Williams) or where the family home is located above business premises below.  It is now beyond doubt that outside of the pure cohabitation context (unless an express declaration of beneficial interest is made) the court will very likely assume that co-owners of business or mixed business/domestic property intended to hold as beneficial tenants in common rather than joint tenants.  It also raises the knotty question of whether in a different case (one in which parties did dispute the quantum of beneficial shares), whether the starting-point of common intention constructive trust reasoning would also give way in favour of the more commercially focused resulting trust analysis.  In short, in cases where property is co-owned by more than just the couple themselves, will the law now also presume their intention was to own in shares proportionate to their financial contributions – even as between the couple themselves?  This also poses potentially very significant difficulties in terms of inheritance planning for families who may well be operating on the assumption that their partner and later children will acquire by way of survivorship on their death, thus avoiding otherwise potentially onerous inheritance tax implications.  Consideration should particularly be given as to whether this issue applies where purchases predate the introduction of the TR1, which now prompts parties to declare at purchase their intentions as to beneficial ownership, as it did in Williams.  Harriet is a specialist family finance practitioner regularly undertaking instructions in TLATA 1996 claims. Harriet also has a breadth of experience in financial remedies cases involving family businesses and issues arising where property is owned jointly by one or both of the couple at the heart of the matter and third parties.

Jury concludes that death of a detained patient by choking was contributed to by inadequate assessment, communication and mitigation of risks

<a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> represented the family of a midwife who died by choking on food whilst detained under the Mental Health Act.  The Article 2 investigation in front of a jury explored the assessment and management of risk of self-harm and suicide, particularly around food, during the deceased’s period of detention.  The jury found that the deceased demonstrated a high risk of deliberate self-harm and suicide associated with food in the month prior to her death. The jury recorded that on the day of her death the deceased was at the highest level of risk.  In recording that the deceased died by suicide, the jury concluded in an expanded narrative conclusion that her death was contributed by the inadequate assessment, communication and mitigation of risks on the ward, including with food and mealtimes.  During the inquest the Trust which provided care for the deceased accepted that the assessment and mitigation of risks associated with food and mealtimes was not robust. In particular there was no care plan around food, the risk assessment was not updated, and specialist input was not sought.  Leila was instructed by Clare Gooch at Switalskis.  Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as Tier 1 by Legal 500 for Inquests and Inquiries. Leila has been appointed to the Attorney General’s Treasury Counsel Panel A since 2010. Leila is appointed as Assistant Coroner for Gateshead and South Tyneside. Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>.

Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd & Ors [2024] EAT 16 (23 February 2024)

The Background  The Claimant/Appellant applied to the Employment Tribunal to be allowed to record a three-day preliminary hearing. The Employment Judge declined to grant the application as he was not satisfied with the evidence in support or that there was any significant disadvantage to the Appellant. In reaching his decision, the Judge did not refer to the guidance provided on this question in Heal v University of Oxford [2020] ICR 1294. Although the guidance in Heal is not mandatory, is in important in considering an application to record proceedings and by not referring to it, the Judge then failed to take into account factors material to the assessment of the Appellant's application. The Judge should therefore have granted the application and it was right to make a declaration that the decision not to do so was unlawful.  The Law  The Employment Tribunal is under a duty to make reasonable adjustments in appropriate circumstances. Whilst the language of reasonable adjustments appears in s. 20 of the Equality Act 2010, that section does not provide the source of the relevant duty as was made clear by Underhill LJ in J v K [2019] ICR 815, albeit in the context of an application for an extension of time for the presentation of a complaint to the employment tribunal:  "...judicial decisions are excluded from the scope of the Act: see paragraph 3 of Schedule 3 to the Act. But as a matter of general law the exercise of a judicial discretion must take into account all relevant considerations, and in such a case the party's mental condition or other disability would plainly be a relevant consideration." [33]  Langstaff J in Rackham v NHS Professionals Ltd UKEAT/0110/15/LA said as to the level of review to which and Employment Tribunal's decision on reasonable adjustments could be subject to scrutiny at the EAT level:  "In this case, though we are attracted to the proportionality analysis that Miss Joffe proposed and that Mr Horan in reply adopted, we do not think that the decision actually depends upon the approach we take, though we would observe that we would be very hesitant before suggesting that a pure Wednesbury approach was appropriate in any case in which it appeared to the reviewing court that it would have been reasonable to have to make an adjustment if that adjustment appeared necessary to obtain proper equality of arms for someone with a relevant disability."[46]  In addition, the court observed as follows:  “In many cases, if not most, a person suffering from a disability will be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it." [50]  The particular issue of whether a reasonable adjustment might be granted in the form of permission to record proceedings was considered by Choudhury J in the Employment Appeal Tribunal in Heal v The Chancellor, Master and Scholars of the University of Oxford & Ors [2020] ICR 1294.  “a. Tribunals are under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in a party's ability to participate in proceedings.  b. Where a disability is declared and adjustments to the Tribunal's procedures are requested in the ET1 form, there is no automatic entitlement for those adjustments to be made. Whether or not the adjustments are made will be a matter of case management for the Tribunal to determine having regard to all relevant factors (including, where applicable, any information provided by or requested from a party) and giving effect to the overriding objective.  c. The Tribunal may consider whether to make a case management order setting out reasonable adjustments either on its own initiative or in response to an application made by a party.  d. If an application is made for reasonable adjustments, the Tribunal may deal with such an application in writing, or order that it be dealt with at a preliminary or final hearing: see Rule 30 of the ET Rules.  e. Where the adjustment sought is for permission for a party to record proceedings or parts thereof because of a disability-related inability to take contemporaneous notes or follow proceedings, the Tribunal may take account of the following matters, which are not exhaustive, in determining whether to grant permission:  i. The extent of the inability and any medical or other evidence in support;  ii. Whether the disadvantage in question can be alleviated by other means, such as assistance from another person, the provision of additional time or additional breaks in proceedings;  iii. The extent to which the recording of proceedings will alleviate the disadvantage in question;  iv. The risk that the recording will be used for prohibited purposes, such as to publish recorded material, or extracts therefrom;  v. The views of the other party or parties involved, and, in particular, whether the knowledge that a recording is being made by one party would worry or distract witnesses;  vi. Whether there should be any specific directions or limitations as to the use to which any recorded material may be put;  vii. The means of recording and whether this is likely to cause unreasonable disruption or delay to proceedings.  f. Where an adjustment is made to permit the recording of proceedings, parties ought to be reminded of the express prohibition under s.9(1)(b) of the 1981 Act on publishing such recording or playing it in the hearing of the public or any section of the public. This prohibition is likely to extend to any upload of the recording (or part thereof) on to any publicly accessible website or social media or any other information sharing platform."  Comment  Given the facts of the case, that there was evidence from a psychotherapist support the application, the application was not opposed by the Respondent, the Claimant was a litigant in person, the PH in question was to last 3 days, and the Claimant had previously been given permission to record hearings with no concerns over his use of those recordings, the outcome of the case is hardly surprising.  Considering the frequency with which disabled Claimants, or witnesses more generally, come before the ET, it is surprising how regularly reasonable adjustments are not considered at case management stage. When adjustments are considered and ordered, they are often conservative in nature. One reason for this conservatism may be an over-reliance on expecting Claimants to identify the adjustments they need, and the corresponding obvious difficulty for Claimants, not familiar with the ET process, to imagine what measures may alleviate disadvantages.  It would be short-sighted for a Respondent representative, seeing no reasonable adjustments requested by a disabled Claimant, to fail to raise the matter. Of course primary duties are to the Tribunal, and Respondents must always bear in mind the Overriding Objective, and as such it would be sensible to always raise the matter of adjustments proactively at case management stage. In most circumstances, it is far better for a Respondent to have an effective final hearing with adjustments, albeit perhaps slightly longer, than a disrupted hearing, or worse, an appeal.  Representatives will find useful guidance on reasonable adjustments in the context of vulnerable parties and witnesses in the <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">Presidential Guidance</a>. The Presidential Guidance refers to <a href="https://www.theadvocatesgateway.org/toolkits-1-1-1">The Advocate’s Gateway Toolkits</a> which cover a range of topics including cross examining witnesses with autism, dyslexia, ADHD, and deaf witnesses. For those representing Claimants with disabilities, the toolkits may be a helpful prompt to inform requests for meaningful reasonable adjustments.

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Parklane Plowden is recruiting

Bronia Hartley Appointed Court Examiner

Success at Trial for Leila Benyounes in Birth Injury Clinical Negligence

Miah v Jones and Aviva Insurance

Land purchased by family members for business purposes not subject to Stack v Dowden presumption

Jury concludes that death of a detained patient by choking was contributed to by inadequate assessment, communication and mitigation of risks

Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd & Ors [2024] EAT 16 (23 February 2024)

Jim Hester writes about Silicosis claims for LexisNexis

Welcome back Emily Ross

10th September 2025 | Inquest Law with Lunch

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

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Parklane Plowden is recruiting

Bronia Hartley Appointed Court Examiner

Success at Trial for Leila Benyounes in Birth Injury Clinical Negligence

Miah v Jones and Aviva Insurance

Land purchased by family members for business purposes not subject to Stack v Dowden presumption

Jury concludes that death of a detained patient by choking was contributed to by inadequate assessment, communication and mitigation of risks

Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd &amp; Ors [2024] EAT 16 (23 February 2024)

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Jim Hester writes about Silicosis claims for LexisNexis

Welcome back Emily Ross

10th September 2025 | Inquest Law with Lunch

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

Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd & Ors [2024] EAT 16 (23 February 2024)