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.

Remote hearings and the future of the Financial Remedy Court: What we learned from the Farquhar report – Parts 1 and 2

<!-- wp:image {"id":3890,"width":222,"height":265,"sizeSlug":"full","linkDestination":"none"} --> <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/11/giorgia-sessi-pupil-21-1.jpg" alt="Barrister Giorgia Sessi" class="wp-image-3890" width="222" height="265"/><figcaption> Written by Barrister; <a href="https://plp.m12development.com/our-barristers/giorgia-sessi/">Giorgia Sessi</a>. </figcaption></figure> <!-- /wp:image --> <!-- wp:paragraph --> <p>T<strong>he Farquhar report, authored by His Honour Judge Stuart Farquhar, was commissioned by Mostyn J (the National Lead of the Financial Remedies Court) to consider the future of the FRC and the role that remote hearings should play.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The findings of the report were based on a nation-wide survey conducted amongst judges and practitioners and on the observations of a working group formed of judges (full time and part time), solicitors and barristers with a broad experience in financial remedy cases, from low to high value assets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report was published on 22 October 2021 and is formed of two parts, which are summarised below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Part 1: remote hearings are here to stay</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report concludes that remote hearings should continue. 14 months into the ‘new normal’ (this part of the report was finalised in May 2021), it is clear that remote hearings bring advantages and disadvantages with them. Amongst the advantages are higher levels of efficiency, ability of judges to work nationally, conflict reduction, improved access for litigants and representatives. The disadvantages merely centre around the solemnity and formality of the process being somewhat undermined, technical difficulties, higher level of tiredness and the ‘loss’ of lay clients who do not have their advocate physically present. Interestingly in respect of final hearings, lawyers indicated that cross-examination can be as effective as in person, whereas judges observed that it is more difficult to assess credibility remotely and that they would benefit from seeing and hearing a party and/or witnesses in person. However, the consensus in respect of expert witnesses is that there is no reason why their evidence cannot continue to be heard remotely. In respect of FDRs, should the parties opt for a remote listing, such listing should be in the morning with an afternoon slot to enable advocates to update the court on progress.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report observes that hearings where no evidence is heard should continue as remote, with the exception of FDRs (although the lawyers involved survey indicated more cases are settling at remote FDRs), enforcement hearings where the liberty of the individual is at risk and appeals.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In terms of platforms, MS Teams was chosen as the preferred remote hearing platform due to its reliability and simple interface, followed by Zoom (mostly supported by lawyers) and CVP (preferred by judges), with BT Meetme faring last.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report also deals with the use of private FDRs, with the majority of respondents reporting a higher settlement rate, but this is regardless of whether the private FDR takes place remotely or in person.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Areas of improvements for remote working were identified as follows:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Technology: CVP to enable breakout rooms or other platforms such as Zoom to be implemented nationally. Dedicated, trained court staff to operate the equipment.</li><li>E-bundles to be fully searchable, bookmarked, PD and e-bundles protocol compliant. Separate disclosure bundle only with permission. A common platform to share bundles should be considered. Sanctions for failure to comply.</li><li>Pre-hearing: advocates’ meetings to narrow issues; include time for judicial reading; better system to ensure judges receive documents on time.</li><li>Hearing: Coat of arms background for judges; regular breaks to acknowledge the tiresome nature of remote working; time limits imposed to lodge orders; listing future hearings there and then.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Part 1 of the Farquhar report is available </em><a href="https://www.judiciary.uk/wp-content/uploads/2021/10/Report-of-the-Farquhar-Committee-Part-1-FRC-Remote-Hearings-May-2021.pdf"><em>here</em></a><em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Part 2: a more efficient system of dealing with low value cases</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The most interesting aspect of the Part 2 is the suggestion of a ‘fast-track procedure’, where low value cases (under £250,000 net assets) can be finalised within 6 months of filing the Form A. If the pilot scheme is successful, there is potential to increase the threshold to £500,000.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The pre-Covid statistics are eyewatering, with the average length of proceedings to FDR being 55 weeks and 84 weeks to final hearing. The fast-track procedure is aimed at improving the level of emotional distress on the parties and children of the family, which practitioners are all too familiar with, and enabling court resources to be freed up for the most complex cases. This procedure involves a fast-paced approach, which will require strict adherence from lay parties and professionals.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main features of the fast-track procedure are as follows:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Forms E, house valuations, mortgage capacities, questionnaires and replies all being available prior to the FDA.</li><li>Forms E to be exchanged within 4 weeks of issue.</li><li>Questionnaires to be exchanged 14 days after receipt of Forms E, with replies being due within 4 weeks of receipt.</li><li>Experts: Parties to agree on house valuations and CGT within 7 days of exchanging Forms E; with LOIs to be agreed within 2 weeks if no agreement is reached. Experts to be directed to provide a report within 4 weeks.</li><li>Preliminary documents to be filed 7 days before the first hearing.</li><li>The first hearing to be listed within 16 weeks of issue.</li><li>Offers to be made in advance of the FDA so that the hearing can be treated as an FDR.</li><li>The final hearing to be listed within 26 weeks from the issue of the Form A.</li><li>Final hearings to be listed for one day.</li><li>Parties to have an option to transfer to the ‘standard’ procedure in case of complexities.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The data collected within the report appears to suggest that just under half of the work carried out within the FRC involves cases under £500,000; therefore, this new procedure would have a significant impact on the volume of cases going through the FRC. The report concludes that this scheme should be piloted in no more than three separate FRC zones for a period of 12 months, with data being collected for evaluation prior to any wider rollout.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report also sought to address wider issues within the practices and procedures of the FRC and identified the following areas of improvement:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Judicial continuity: any interlocutory application (and particularly enforcement) to be made to the allocated judge unless impracticable.</li><li>Listing: no block listing for FR cases; ‘not before’ slot most appropriate; parties’ availability to be provided and listing to be arranged on the day of the hearing. FDAs to be listed for 1 hour; FDRs for 1.5 hours not in the afternoon (parties and advocates to be available for the whole day).</li><li>Staffing: a designated, trained member of staff to be responsible for each FRC hearing.</li><li>Litigants in person: a user friendly set of guidelines on the FRC process to be sent to unrepresented parties at the time of issue of Form A.</li><li>Forms E to be amended to include:<ul><li>Date of cohabitation</li><li>Mortgage capacity</li><li>Housing needs</li><li>What kind of settlement is considered fair instead of ‘order sought’</li></ul></li><li>FMH valuation: value of FMH to be agreed within 7 days of exchange of Form E; valuation / appraisal in default of agreement prior to FDA.</li><li>FDA documents:<ul><li>No statement of issues</li><li>Joint schedule of assets with differences highlighted</li><li>Chronology with differences highlighted</li><li>Joint case summary</li></ul></li><li>Skeleton arguments: to be significantly reduced in length, i.e. 5 pages for FDA to a maximum of 15 pages for the final hearing.</li><li>Advocates’ meeting: to be held 3 days before each hearing to narrow issues.</li><li>ADR: to be strongly encouraged, including use of private FDRs.</li><li>Draft orders: to be lodged prior to the hearing with areas of disagreements clearly marked. Final draft to be completed on the day of the hearing.</li><li>Asset schedules: to be provided in A4 (not A3) format and excel.</li><li>S25 statements: to be limited to 10-15 pages and contain evidence only, not ‘argument or rhetoric’.</li><li>Consent orders: to be sent in word version, with a proposed new statement of information which provides more clarity as to capital and income resources and the net effect.</li><li>Appeals: Lead FRC judges (if CJ) to be allowed to certify where an appeal is ‘totally without merit’. This is in light of the many groundless appeals made within the FRC.</li><li>Costs: parties to be clearly reminded of the cost consequences of breaches and failure to negotiate reasonably; Forms H to be included in the bundle.</li><li>Communication: documents to be sent to judges directly as well as the court.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Part 2 of the Farquhar report is available <a href="https://www.judiciary.uk/wp-content/uploads/2021/10/Report-of-the-Farquhar-Committee-Part-2-The-Financial-Remedies-Court-The-Way-Forward-September-2021.pdf" target="_blank" rel="noreferrer noopener">here</a>.</em></p> <!-- /wp:paragraph -->

Litigating with Litigants in person: Useful pointers on balancing duties

<!-- wp:paragraph --> <p><strong>Nicola Twine is a specialist Personal Injury, Clinical Negligence, and Employment barrister with over 20 years’ experience. In the article below Nicola outlines useful pointers on balancing duties when litigating with Ligitants in person.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>1.</strong> The growth in the number of litigants in person (LiPs) in the Employment Tribunal has been keenly apparent over the last 18 months, when dealing with cases remotely as a consequence of Covid19. <a href="#_ftn1">[1]</a> Whilst as lawyers we have had to familiarise ourselves with navigating electronic bundles and technology for remote hearings we have navigated through otherwise familiar territory.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>2.</strong> The LiP has had the unfamiliar through which they have to find their way expanded. The day in court that many LiPs have hoped for has not arrived but has been a day, or days, behind a screen. It is likely this will continue, certainly for some types of hearings, going forward.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>3.</strong> As a result, it is helpful to take some time and reflect on how as lawyers we should conduct cases when responding to claims against LiPs. It is important to understand the extent and limit of duties in the tribunal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Legal duties</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>4.</strong> We have a duty to our clients, to the court, and the administration of justice, as set out in The Legal Services Act 2007 at s1(3) which provides that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>c) …authorised persons should act in the best interests of their client.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>d) …persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independent in the interests of justice.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>5.</strong> It is the duty to the court which is paramount. This is reflected in the regulatory framework for both sides of the profession. The Barristers Code of Conduct states clearly at gC1 that the duty to the court in the administration of justice overrides any other core duty<a href="#_ftn2">[2]</a>, if and to the extent that the two are inconsistent. The Solicitors Regulation Authority Handbook contains provisions with similar effect.<a href="#_ftn3">[3]</a> Most significantly, chapter 11 provides that a solicitor must ensure that unfair advantage is not taken of an opposing party’s lack of knowledge where they are a LiP.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>6. </strong>The duty may conceivably operate to potential disadvantage of a client, by obligating submission of authorities that are unhelpful to a case. At gC5 the BSB Handbook makes specific reference to this highlighting that it is particularly important when acting against LiPs to draw to the attention of the court any decision or provision which may be adverse to a client. This is to prevent unfair advantage and to ensure that both parties are on ‘an equal footing’ in accordance with the overriding objective.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Guidance for lawyers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>7.</strong> In 2015 the Law Society, the Bar Council and CILEx jointly prepared guidelines for lawyers facing litigants in person in the courts.<a href="#_ftn4">[4]</a> Despite the age of the guidelines, and the fact they have not been updated to address remote hearings, they remain a good reference setting out good practice. It is recommended they are read in conjunction with the section on litigants in person within the Judicial College Equal Treatment Bench Book (ETBB) <a href="#_ftn5">[5]</a>, which book all Judges must have regard to<a href="#_ftn6">[6]</a>. Chapter 1 of the 2021 edition concerns litigants in person and lay representatives.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>8. </strong>Dealing with litigants in person can be at times frustrating and time-consuming. It is not uncommon to be presented with pleadings that appear as ramblings, where the claims have to be identified, and witness statements that deal with each and every event that occurred in the workplace for a period spanning years. Nor is it uncommon to have litigants in person who are angry and frustrated holding unrealistic expectations as they are so involved in their own case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>9. </strong>The ETBB reminds us that the flagged difficulties faced by LiPs generally stem from lack of knowledge and that LiPs tend to:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a. Be unfamiliar with the language and vocabulary of proceedings;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> b. Have little knowledge of proceedings;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> c. Be ill informed about ways of presenting evidence;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> d. Be unskilled in advocacy;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> e. Be unable to understand the relevance of the law and regulations in relation to their own problem;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> f. Be unable to understand the concept of a cause of action;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> g. Lack objectivity and emotional distance from their case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>10.</strong> We can add to the list that LiPs tend to be unfamiliar with, and nervous about, the use of technology for conducting proceedings. They are less likely to have the required technology than a lawyer and may not be able to comfortably operate it to conduct a hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Practical pointers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Communication</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>11.</strong> Ensure both in and outside of the tribunal that you are clear in communications, as well as courteous and co-operative. Legal jargon is to be avoided where possible. Any written documents such as applications, skeleton arguments, and submissions should be comprehensive to the lay person and sent in advance of a hearing, again where possible.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>12.</strong> If circumstances permit, notice should be given of any applications to minimise objection from a LiP and the potential need for adjournments to proceedings, which may result in adverse costs orders.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>13.</strong> In any hearing, when interjecting it is helpful to explain why, recognising that the LiP may not know what has caused interruption to their submissions or questioning and the importance of their being able to follow and participate in proceedings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Preparation</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>14. </strong>The tribunal will generally expect the represented party to take responsibility for preparation of bundles, provision of copies, and to draw up any orders. This should be anticipated. Time should generally be allowed for agreeing the content of trial bundles recognising the LiPs do not always understand what renders a document relevant, so start preparation early.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>15. </strong>Where authorities are to be relied on those should be provided to the LiP ahead of a hearing. Furthermore, it is helpful if specific passages to be relied on are marked for the LiP, as the EAT requires on any appeal.<a href="#_ftn7">[7]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Assistance</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>16. </strong>There should be preparedness to assist LiPs at hearings when identifying claims and issues.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>17. </strong>In Cox v Adecco &amp; Ors UKEAT/0339/19/AT, an appeal against an order striking out a claim made at a preliminary hearing, it was stressed that before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, and issues in the claim. Moreover, with LiPs this involves more than requiring a preliminary hearing to say what the claims and issues are but requires reading the pleadings and core documents that set out the claimant’s case. Amongst a number of general propositions advanced it was stressed<a href="#_ftn8">[8]</a> that respondents, particularly if legal represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not take procedural advantage of LiPs, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner expected of a lawyer or the wrong label is applied.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>18.</strong> It is to be recognised that the tribunal has a duty to make procedural allowances to a LiPs difficulties and vulnerabilities and to demonstrate sensitivity. This may dictate how proceedings are conducted.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Reflection</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>19.</strong> Sensitivity has to be demonstrated to a LiPs’ difficulties. Time should be taken in each case to determine what these might be and what practical steps might be taken, in the interests of the court and the client, to assist the smoother running of a hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>20.</strong> Practically, if it is believed that a LiP is vulnerable and that there needs in terms of participating in proceedings have not been recognised this should be brought to the attention of the tribunal.<a href="#_ftn9">[9]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>21.</strong> In April 2020 the Employment Tribunal issued presidential guidance on vulnerable parties and witnesses<a href="#_ftn10">[10]</a>, which stresses the importance of active case management, adjustments for vulnerability, and addresses vulnerability in the context of capacity to litigate. Lawyers are advised to familiarise themselves with this guidance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>22.</strong> Guidance on the appropriate course of action where a representative forms a view an unrepresented claimant might lack capacity to conduct litigation was given in Jhuti v Royal Mail Group Ltd UKEAT/0061/17. Whilst both the presidential guidance and that in Jhuti leave many questions unanswered, such as how to investigate capacity where the evidence is not clear, both stress the importance of raising capacity early if it is a potential issue. This is despite there being no bar to a party without capacity conducting litigation in the Employment Tribunal, unlike in other jurisdictions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>23.</strong> Procedurally, regard has to be had to difficulties there may be with compliance. As was recognised in Cox, when dealing with LiPs requests for additional information should be as limited and clearly focussed as possible. Repeatedly asking for additional information and particularisation rarely assists as LiP to clarify the claim<a href="#_ftn11">[11]</a>. More often assistance is required.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Compliance</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>24. </strong>Lawyers must ensure that they comply with rules and practice directions and be aware that a failure to do so, when there is a LiP in particular, may lead to adverse consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>25.</strong> Where there has been non-compliance by with practice directions and court orders by a LiP the tribunal will be keen to ascertain why. In reality some degree of assistance and leniency is often given due to the difficulties faced by LiP but in many cases there comes a time when a court will impose a sanction, particularly where an infarction has implications for the litigation process and represented party.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Costs</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>26. </strong>Represented parties are advised to carefully consider whether to apply for costs against a LiP in any given case, even where there is finding of some unreasonable behaviour or consideration that a claim had limited or no prospects. The gravity and effect of any unreasonable conduct or failure, as well as means to pay are relevant factors for consideration.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>27. </strong>Whilst the threshold tests are the same whether a party is represented or not the application of those tests is to take account as to whether a party is professionally represented or not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>28.</strong> The EAT in AQ Ltd v Holden [2012] IRLR 648<a href="#_ftn12">[12]</a> observed that a tribunal cannot and should not judge a LiP by the same standards as a professional representative. It was held that: whilst the law is the same, the application of that law and the courts exercise of discretion, must take into account whether a litigant is professionally represented; a tribunal cannot and should not judge a LiP by the standards of a professional representative as justice requires professional standards are not applied; and that even if the threshold tests are met the tribunal has discretion whether to make an order having regard to all the circumstances. This has since been followed with approval in Vaughan v London Borough of Lewisham UKEAT/0534/12/SM.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>29.</strong> In Oni v Unison UKEAT/0370/14/LA the importance of considering means was stressed once there has been a finding of unreasonable conduct. The tribunal had there erred in assuming that once unreasonable conduct was established a costs order should follow. The means of a paying party are to be considered twice. Firstly, in considering whether to make an award of costs; secondly, if an award is to be made in deciding how much.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>30. </strong>The unreasonable behaviour on the part of the LiP has likely to be significant to result in a costs order. This was the case in Liddington v 2gether NHS Foundation Trust UKEAT/0002/16. In that case three Employment Judges had told the claimant that her claims were not adequately particularised. In considering costs the Judge accepted that the claimant was a litigant in person and so (in accordance AQ Ltd v Holden) should not be  held to the standards of a lawyer but her continued ability to provide particulars amounted to unreasonable conduct justifying costs against her. The Judge did consider whether there was vulnerability by reason of stress, anxiety or illness, that affected the failure to particularise and decided it was not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Conclusion</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>31.</strong> An understanding of the party as well as the claim is the key to conducting a case against a LiP. This is to minimise the risk of any appeal, avoid unnecessary adjournments, assist the smooth running of the claim, and to ensure that competing duties are discharged.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><br>Nicola Twine</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden<br><br><br></p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1">[1]</a> The five yearly <a href="https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-2018">https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-2018</a> survey conducted in 2018 found 46% of Claimants used a lawyer for some or all of the proceedings whereas 77% of employers had representation. It is the number of unrepresented Claimants that is believed to have increased markedly.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2">[2]</a><a href="https://www.barstandardsboard.org.uk/for-barristers/compliance-with-your-obligations/the-core-duties.html">https://www.barstandardsboard.org.uk/for-barristers/compliance-with-your-obligations/the-core-duties.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3">[3]</a> Chapters 5 and 11.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4">[4]</a> Accessible via <a href="https://www.lawsociety.org.uk/en/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers">https://www.lawsociety.org.uk/en/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5">[5]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf">https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6">[6]</a> This is regularly updated and its relevance and importance in Employment Tribunal proceedings has been recognised judicially.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7">[7]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2020/06/Practice-Direction-2018-19-09-19_.pdf">https://www.judiciary.uk/wp-content/uploads/2020/06/Practice-Direction-2018-19-09-19_.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8">[8]</a> Paragrpahs 28 to 31.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref9">[9]</a> As considered in Higgins v Home Office [2015] UKEAT/02961/14/LA and East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref10">[10]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref11">[11]</a> Paragraph 32.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref12">[12]</a> In which the writer represented the employer.</p> <!-- /wp:paragraph -->

Parklane Plowden Chambers named as Band 1 Barristers’ set across five practice areas in Chambers &#038; Partners 2022 rankings

<!-- wp:paragraph --> <p>Parklane Plowden Chambers has been ranked as a Band 1 set across five practice areas and a Band 2 set across two areas in the Chambers &amp; Partners 2022 rankings.<em>Chambers has been named as Band 1, the highest ranking a Chambers can achieve, across the chancery; clinical negligence; employment; family: children and personal injury practice areas. Additionally, the set has been ranked as Band 2 for family: matrimonial finance and inquests &amp; inquiries.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>57 Parklane Plowden barristers were ranked in this year’s edition across:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><em>Motor Insurance Fraud</em></li><li><em>Personal Injury: Industrial Disease</em></li><li><em>Chancery</em></li><li><em>Clinical Negligence</em></li><li><em>Employment</em></li><li><em>Family: Children</em></li><li><em>Family: Matrimonial Finance</em></li><li><em>Personal Injury</em></li><li><em>Professional Negligence</em></li><li><em>Inquests &amp; Public Inquiries</em></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Parklane Plowden Chambers also saw success in this year’s Legal 500 2022 Edition. To find out more, click <a href="https://www.parklaneplowden.co.uk/news/parklane-plowden-chambers-named-as-tier-1-barristers-dry-across-five-practice-areas-in-legal-500-2022-rankings">here</a>.</em></p> <!-- /wp:paragraph -->

Joy Dove and (1) HM Assistant Coroner for Teesside and Hartlepool (2) Dr Shareen Rahman and Secretary of State for Work and Pensions

<!-- wp:paragraph --> <p>Written by&nbsp;<a href="https://www.parklaneplowden.co.uk/barristers/sophie-watson">Sophie Watson</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The High Court considered whether the Department for Work and Pensions (DWP) owed a duty under Article 2 to a benefits claimant who took their own life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Jodey Whiting had been receiving Employment Support Allowance since 2012, and other state benefits prior to that.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The DWP reassessed Ms Whiting’s work capabilities and gave her an appointment in person, which she missed because of pneumonia and her mental health difficulties. The DWP rejected Ms Whiting’s explanations and refused her invitation to seek evidence from her GP.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The DWP then stopped Ms Whiting’s benefits, which the family alleged had caused or contributed to her suffering severe depression, in the course of which she took an overdose of prescription medication on 21.02.17 and died.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 24.05.17 the Assistant Coroner held an inquest into her death. The Assistant Coroner refused to examine the actions of the DWP and recorded a conclusion of suicide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Appeal to the High Court</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Whiting’s mother, applied to the High Court under section 13 of the Coroner Acts 1988 for an order quashing the Coroner’s determination and requesting that a new Inquest take place on the grounds of:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>Insufficiency of inquiry by the Coroner under common law;</li><li>insufficiency of inquiry by the Coroner under Article 2;</li><li>there was fresh evidence, namely an Investigation report documenting the numerous flaws in the DWP’s conduct and medical report making a causal link between their conduct and Ms Whiting’s suicide; and</li><li>it was likely there would be a different conclusion if the new information was placed before a different Coroner.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The appeal was dismissed on all 4 grounds.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mrs Justice Farbey considered the three categories in which a state is under an “operational duty” to protect an individual under Article 2, as set out in&nbsp;<em>Rabone v Pennine Care NHS Trust&nbsp;</em>[2012] UKSC 2, [2012] 2 AC 72:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>Where there was an assumption of responsibility by the state for an individual’s welfare and safety (including by exercise of control);</li><li>the vulnerability of the victim; and</li><li>the nature of the risk (i.e. if it falls outside of ordinary everyday risks).</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The Court found that the DWP did not owe an operational duty to Ms Whiting to prevent her suicide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mrs Justice Farbey stated that the DWP were bound by law to allocate funds to those who met the statutory requirements. Their decisions to allocate ESA to Ms Whiting were based upon the statutory criteria alone and had no consideration of Article 2 requirements.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The applicant argued that the respondent’s failure to follow its own guidance and undertake a “safeguarding visit” following the missed appointment, gave rise to an operational duty. The Court rejected this argument on the grounds that this was only practical guidance, not law, and was not sufficient reason to extend Article 2 obligations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court accepted that Ms Whiting’s physical and mental health problems made her particularly vulnerable. However, it saw no reason to depart from the decision in&nbsp;<em>R (Maguire) v Blackpool and Fylde Senior Coroner&nbsp;</em>[2020] EWCA Civ 738, [2021] QB 409, that there is no general obligation to prevent suicide in the absence of an assumption of responsibility. The Court made reference to the fact that Ms Whiting was not under the care or control of the state nor a minor to whom responsibility may automatically arise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, the Court found that the nature of the risk was not “exceptional” for the purposes of assuming an operational duty. It found that the risk posed to Ms Whiting by the withdrawal of her benefits did not arise from a dangerous threat to life but an ordinary hazard of life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court also considered the systemic duty under Article 2 and found that there had been no breach as the failings were individual, not systemic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case reinforces the limited scope of the operational duty under Article 2. The starting position remains as is stated in&nbsp;<em>Maguire&nbsp;</em>that there is no general obligation in the absence of responsibility and that the test applied in&nbsp;<em>Rabone&nbsp;</em>is likely to remain the focus for future coroners to consider in similar circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is important to note that this case relates principally to the operational duty under Article 2. The DWP, and other public authorities, remain under the primary duty to have in place appropriate systems to protect life.</p> <!-- /wp:paragraph -->

Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442: “A court should still consider criticisms of an otherwise uncontroverted expert report but when such criticisms should be made is far from clear.”

<!-- wp:paragraph --> <p>The eagerly awaited judgment of the Court of Appeal in the Case of Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442 was handed down on Thursday 7th October 2021.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Written by&nbsp;<a href="https://www.parklaneplowden.co.uk/barristers/ian-pennock">Ian Pennock</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Ratio Decidendi (binding) of all three judges is that a court is always entitled to assess the weight of even an uncontroverted expert report to ensure the expert has provided reasons for his conclusions (a bare assertion being worthless). When the court has assessed the experts report the court is entitled to reject the experts conclusions provided it has ‘good reason’ to do so - otherwise it should normally accept such evidence and conclusions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Obiter Dictum (non-binding) comments by Asplin LJ about the Defendant being entitled to reserve criticism of the expert report until their closing submissions (It being Obiter because the court was not deciding when any criticisms of an expert report should be made - such as with closing submissions or Part 35 Questions or cross examination) were ‘profoundly’ disagreed with by Bean LJ who considered such a tactic to be ‘Trial by Ambush’ and that Party is not just prevented from contesting the veracity of a witness to whom it has not put such a challenge to the honesty of that witness but also prevented from criticising in closing submissions a witness to whom they have not put criticisms regarding the accuracy of that witnesses evidence thereby denying that witness an opportunity to answer the same and denying the Court the opportunity to consider the witness’ response. He considered such a tactic of leaving such criticisms to closing submissions alone to be contrary to the ‘cards on the table’ approach advocated by the CPR and the overriding objective.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is notable that despite agreeing that the judge below (Spencer J) was wrong to say a court ought not to evaluate an uncontroverted expert report Bean LJ would still have dismissed the appeal because leaving such criticisms until closing submissions was a ‘<em>trial by ambush</em>’ and contrary to basic principles of fairness and justice which deprived Mr Griffiths of a fair trial.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“<em>Mr Griffiths must be wondering what he did wrong. He instructed a leading firm of personal injury solicitors, who in turn instructed an eminent microbiologist whose integrity has not been questioned. Mr Griffiths and his wife gave evidence at the trial, were cross-examined, and were found by the judge to be entirely honest witnesses. The eminent expert gave his opinion that on the balance of probabilities Mr Griffiths’ illness was caused by the consumption of contaminated food or fluid supplied by the hotel. No contrary evidence was disclosed or called, and the expert was not cross-examined. Yet the Claimant lost his case.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Asplin LJ, with whom Nugee LJ agrees, says at [65] that “as long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so”, and that she can see nothing which is inherently unfair in that procedure. With respect, I profoundly disagree. In my view Mr Griffiths did not have a fair trial of his claim. The courts should not allow litigation by ambush. I would therefore have dismissed TUI’s appeal.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion -&nbsp;</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A court can still assess an uncontroverted expert report but should be very slow to dismiss its conclusions unless it has good reason to do so (i.e. as we have always said).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Practice Points -</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Counsel - The Defendant’s practice of ‘keeping its powder dry’ for closing submissions</strong>&nbsp;ought to be resisted and criticised by Claimant counsel in their closing submissions noting the Defendants failure to put such criticisms to the expert by way of Part 35 questions &amp; denying that expert an opportunity to answer the purported criticism and denying the court the benefit of the experts answer to that purported criticism - all of which is contrary to the overriding objective of ensuring a fair trial such that any purported criticisms by the Defendant of that expert in closing submissions alone ought to be given very little weight (The Defendant having denied the expert the opportunity to answer the criticism and having denied the court the opportunity to consider any response by the witness).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Solicitor</strong>&nbsp;- Always read and check an experts report by asking the question in relation to any conclusion within the summary of those conclusions “Have they said WHY they have come to that conclusion?” if not send it back and ask them to do so.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Also, if an expert does not answer the other sides Part 35 question properly point that out to them and ask them to reply further with a more expansive response.</p> <!-- /wp:paragraph -->