Victoria Steele, Author at Parklane Plowden

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22 June 2023 | Employment Law with Lunch

The next webinar in our ‘Law with Lunch’ series of bitesize, lunchtime talks covering legal issues of the moment is not to be missed.  Thursday 22 June 2023 | 12:30-13:30  Join barrister and employment specialist Stuart Roberts as he discusses:  Anatomy of a trial - taking you through a 7 day trial in the Tribunal: the issues, challenges and tactics for a complex trial, spanning claims of race and sex discrimination, unfair and wrongful dismissal: from initial instruction, through the trial to the remedy hearing.  Please email events@parklaneplowden.co.uk to register.

New Rules for Standard Family Orders – Public Law

On the 17th May 2023 Mr Justice Peel announced a number of changes to the Standard Family Orders, along with guidance as to how such orders should be drafted. This article sets out the main changes with an emphasis on their relevance for Public Family Law practitioners.  The new pro forma Standard Family Orders can be found here:  <a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip</a>  <a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip</a>  The key changes are:  <ul> <li>The orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing.</li>  <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles.</li>  <li>The orders include a Permission to Appeal directions order.</li>  <li>The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.</li>  <li>The orders incorporate the new required forms for cases involving committal applications.</li>  <li>The orders incorporate an updated Deprivation of Liberty order, an updated standalone Port Alert order and the correct contact details for any disclosure request to NHS England.</li>  <li>The children orders reduce significantly the use of recitals. In general, recitals now appear at the end of children orders, giving greater prominence to the body and substance of the orders.</li>  <li>In the children orders, there are separate orders for different stages of public law and private law proceedings, all of which have been made more streamlined.</li> </ul>  House Rules  Mr Justice Peel sets out the ‘House Rules’ for the drafting of Family Orders, the main points of these are summarised below.  Recitals  <ul> <li>Recitals in a children order shall appear in a schedule at the end of the order.</li>  <li>Recitals must only record necessary information, drafted in a short and neutral manner.</li>  <li>Recitals should not:<ul><li>record what happened in the hearing</li></ul><ul><li>record the parties’ position</li></ul><ul><li>recite the documents which the court read (unless it was a without notice hearing)</li></ul> <ul> <li>recite the witnesses who were heard (unless it was a without notice hearing)</li> </ul> </li> </ul>  Disclosure Orders  <ul> <li>Disclosure orders against third parties should each be drawn as a separate order</li>  <li>The main order should include, in the body of the order, what disclosure orders have been made and the date by which the disclosure should be made.</li> </ul>  Format of order  <ul> <li>The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.</li>  <li>Orders should be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. The schedule of recitals shall recommence as paragraph 1.</li>  <li>The next hearing should appear at the start of the Order, with the following orders and directions in chronological order.</li>  <li>Parties:<ul><li>The parties shall be specified at the beginning of the order.</li></ul><ul><li>Children shall be referred to by their first forename and surname.</li></ul><ul><li>Each child shall be numbered as a separate respondent.</li></ul><ul><li>The children’s guardian shall be referred to as “the guardian”.</li></ul><ul><li>If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated.</li></ul><ul><li>Advocates should be identified on the face of the order as Mr / Mrs / Miss / Ms etc. [surname] or by their first name and surname, with counsel being identified as such.</li></ul><ul><li>Contact details should be included for litigants in person and the solicitor of represented parties. Counsel’s details should not be included.</li></ul><ul><li>Language</li></ul><ul><li>Clear English should be used at all times, avoiding archaic legal language.</li></ul><ul><li>Definitions appear in the recitals. Abbreviations may be used.</li></ul><ul><li>In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.).</li></ul><ul><li>“Their” should be used in a singular sense instead of “his or hers”.</li></ul><ul><li>Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.</li></ul><ul><li>Dates must be specified using the full name of the month and year, for example 17 May 2013</li></ul> <ul> <li>Times must be stated using the 24-hour format for example - 17:00 or 12:00</li> </ul> </li> </ul>

Drafting Family Orders – the New ‘House Rules’ and Standard Family Orders – May 2023 | Part 2 – Financial Provision and Divorce Orders

The revision to Standard Family Orders (SFO) released on 17 May 2023 are said to: “Reflect changes in law, practice, and procedure. In part, they have been amended to achieve internal consistency and clarity of phraseology. Formatting and stylistic improvements have also been made.” (Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders).  In Part 1, Katherine Goss set out the May 2023 key changes to Private Children orders : <a href="https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/">https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/</a>  This second advisory note therefore concentrates on the May 2023 key changes to the Financial Provision and Divorce orders as a result of the May 2023 revision and also sets out in summary the new “House Rules” on how to draft orders.  As before, the SFOs do not have the status of “forms” under FPR Part 5. The default position is that they should be used, but parties and the court are permitted to adapt them to such extent as may be appropriate.  <a href="https://www.judiciary.uk/guidance-and-resources/advisory-notice-by-mr-justice-peel-judge-in-charge-of-the-standard-orders/">Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders - Courts and Tribunals Judiciary</a>.  Click on the above link to access:  <ul> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/HouseRules.May2023.docx">Download HouseRules.May2023.docxfile</a></li>  <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip">Download SFO-Vol-1-150523.zipfile</a></li>  <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip">Download SFO-Vol-2-150523.zipfile</a></li> </ul>  The Family Orders May 2023 ‘House Rules’ are then in summary :  1) All orders made by the Family Court and the High Court (Family Division) are to be in the standard forms as contained in Vol 1 and 2 so when drafting orders, whether by consent or following a hearing you should use the standard order templates adapted as appropriate to the facts of the case.  2) Recitals -in a financial order these should appear at the beginning of the order BUT in a children order they are to be at the end of the order. Recitals must only record necessary information, drafted in as short and neutral a manner as possible. They should not record what happened in the hearing and should be limited to essential background matters which are not part of the body of the order. Any purported views of the court which did not form part of the court’s decision should not be recited. The recording of a party’s position before, during, or after the hearing as a recital should cease unless the standard order template requires such information.  3) Do Not - recite the documents read, or witnesses heard, save without notice hearings, in which case the details shall be recorded in a recital as shall the reason for the hearing being made without notice    4) Third party disclosure orders/non-party orders need to be done as separate orders  not contained in the main order from the proceedings, but the main order should record that separate order(s) have been made and  should identify what the separate order was for and the date by which any information / evidence arising from that order is to be disclosed.  5) Format of order:  a. The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.  b. An order shall be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. Where possible, and in any event as provided in the standard order templates, recitals in children cases should appear in a schedule to the order. The numbering of paragraphs in any schedule shall recommence as paragraph 1.  c. Subparagraphs, to two levels only, are permitted and shall be numbered (a), (b) etc, then (i), (ii) etc (with or without brackets).  d. So far as possible, the order should contain orders and directions in a chronological order, save that the directions in respect of the next hearings should appear at the start of the order.  e. An order shall state in its heading the statute(s), or European Regulation(s), or Protocol under which the powers in question are exercised. It shall not state that the inherent powers of the court are being exercised.  6) Parties:  a. The parties shall be specified at the beginning of the order.  b. Use the “applicant” and the “respondent” not in the main suit (i.e. petitioner and respondent) save in respect of orders made in the main suit.  c. Children shall be referred to by their first forename and surname.  d. Each child shall be numbered as a separate respondent.  e. The children’s guardian shall be referred to as “the guardian.”  f. If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated in the paragraph of the order detailing the parties to the proceedings.  7) Where a party was represented by an advocate, that advocate shall be named on the face of the order. Formality of naming should be preserved, with the advocate being identified as “Mr / Mrs / Miss / Ms etc. [surname]” or by their first name and surname. If the advocate is counsel, the order should so state.  8) Where a standard order template requires contact details to be inserted into the paragraph detailing the parties to the proceedings, those contact details shall be of the party if a litigant in person, or of the solicitors on the court record if the party is represented. Contact details for counsel should not be used.  9) Clear English (or Welsh in Wales) should be used at all times. Archaic legal language (“the party of the first part,” “hereinabove,” “heretofore” etc.) should be avoided.  10) If definitions are required, they shall appear in the recitals. Abbreviations may be used.  11) In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.)  12) Although not grammatically pure the plural pronoun “their” should be used in a singular sense instead of “his or hers.”  13) An obligation to do an act as provided for in an order shall be taken to include causing the act to take place. Thus the phrase “or cause to be paid,” does not need to be included in an order.  14) An obligation to do an act within a specified period shall state the actual date and time by which the act must be done.  15) Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.  16) Dates shall be specified and must use the full name of the month and the year in full form (e.g. 17 May 2013 and not 17th May 2013 or 17/5/13 or May 17th, 2013 or “this 17th day of May 2013”). Times must be stated using the 24-hour format (e.g. 17:00 or 12:00, not 5pm or noon.)  17) Distances should be specified metrically up to 1,000 metres. Beyond that distance either system, imperial or metric, may be used.  18) Monetary sums shall be denoted numerically, save that for sums expressed in millions the abbreviation “m” may be used. Other variants e.g. “M” or “millions” should not be used. Currencies shall be expressed by the usual symbols. Thus, for example, £, €, US$ and A$ should be used, not GBP, EUR, USD, and AUD.  Changes to the Standard Family Orders (Financial Provision)  Key Practical issues and the need for change:  <ul> <li>The SFO ‘long directions order’ was (in the 2020 incarnation) at 46 pages extremely long and needed wholesale revision.</li>  <li>Across the board the orders needed to accommodate directions for remote hearings and electronic bundles and to update the forms in the light of the Efficient Conduct Statement.</li>  <li>Given that the Divorce Dissolution and Separation Act 2020 is now in force the terminology used in divorce, dissolution, nullity, and separation proceedings needed updating  </li> </ul>  Specific changes  <ul> <li>The ‘long’ directions order is now down to 32 pages from 46 pages .</li>  <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles (paragraph 76 Order 7.0 Vol 2)</li>  <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative (Vol 2 Orders 24.1-24.7)</li>  <li>The orders contain directions supporting the Statement on the Efficient Conduct of Financial Remedy proceedings in the Financial Remedies Court Below High Court Judge level.</li>  <li>The Financial Directions Orders  (Order 1.1 and 1.2) orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing. This extends to there being in the Order 1.1 Long version specific reference t<a>hat the court is highly likely in the first instance to make an order for a single joint expert report and that it is only as a result of a Daniels v Walker application, or for some other reason, that the court permits one or both parties to obtain their own expert report</a>.</li> </ul>  <ul> <li>The financial orders include additional undertakings such as (i) not applying for decree absolute/final decree until 28 days after the making of a financial order (relevant for the making of a pension sharing order); (ii) removal of Land Registry notices; and (iii) obtaining a Get.</li>  <li>The orders incorporate the provisions of the Divorce and Dissolution Act 2020, incorporating the new terminology for divorces – conditional order and final order in place of decree nisi and decree absolute – although retaining both options for the time being while this change takes effect.</li>  <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative.</li>  <li>The financial orders include draft costs orders updated to reflect changes in practice and guidance on costs.</li>  <li>The financial orders include draft directions and substantive orders on pensions updated to reflect changes in practice and guidance in this area.</li>  <li>The financial orders include a free-standing draft order to accommodate the Accelerated First Appointment procedure.</li>  <li>The orders include a Permission to Appeal directions order.</li>  <li>Warning notices have been updated and made consistent.</li> </ul>  Conclusion  It would serve all practitioners well to always have the ‘House Rules’ in mind to ensure that Orders do not require amendment by the court and to update personal templates with the new SFO’s.  <div class="wp-block-group"> Julia Nelson is the head of the family law team at Parklane Plowden Chambers. Julia's practice specialises in Financial Provision and Private Children Law. </div>

New House Rules and Standard Family Orders – May 2023

<a href="https://www.judiciary.uk/guidance-and-resources/advisory-notice-by-mr-justice-peel-judge-in-charge-of-the-standard-orders/">Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders - Courts and Tribunals Judiciary</a>.  Click on the above link to access:  <ul> <li>House Rules (May 2023)18.69 kb</li>  <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip">Download SFO-Vol-1-150523.zipfile</a>SFO Volume 1 (zip file)2.54 mb</li>  <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip">Download SFO-Vol-2-150523.zipfile</a>SFO Volume 2 (zip file)4.64 mb</li> </ul>  The revision to Standard Family Orders released on 17 May 2023 are said to: “Reflect changes in law, practice and procedure. In part, they have been amended to achieve internal consistency and clarity of phraseology. Formatting and stylistic improvements have also been made.” (Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders).  The advisory note sets out the key changes to Private Children orders:  Practical issues:  <ul> <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles (paragraph 76 Order 7.0 Vol 2)</li>  <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative (Vol 2 Orders 24.1-24.7)</li> </ul>  Specific changes:  <ul> <li>The children orders reduce significantly the use of recitals. In general, recitals now appear at the end of children orders, giving greater prominence to the body and substance of the orders (paragraphs 3 and 4 of House Rules)</li>  <li>The orders refer to “Planning Together for Children Course” instead of the “Separated Parents Information Programme” (paragraph 18 (b) Order 7.0 Vol 2)</li>  <li>There is a third-party disclosure order covering disclosure requests from school/nursery; the Local Authority; GP, hospital, Health Visitor etc. and the orders refer to the correct contact details for any disclosure request to NHS England (Order 7.2 Vol 2).</li>  <li>Warning notices have been updated and made consistent across the orders.</li>  <li>The precedents themselves are much more detailed, for example, there are detailed provisions in respect of handovers under the “directions and conditions” (paragraph 51 Order 7.0 Vol 2).</li> </ul>  General provisions:  <ul> <li>The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.</li>  <li>The orders incorporate bespoke headings for the Family Court and the Family Division.</li>  <li>In the children orders, there are separate orders for different stages of public law and private law proceedings, all of which have been made more streamlined.</li> </ul>  Stylistic changes:  <ul> <li>No more little ‘th’ after the date; avoid archaic language; refer to the parties as applicant and respondent, rather than mother/father etc. (House Rules).</li> </ul>  Recitals  Paragraphs 3 and 4 of the House Rules state:  <ul> <li>Recitals in a children order shall appear at the end of the order.</li>  <li>Recitals must only record necessary information, drafted in as short and neutral a manner as possible.</li>  <li>They should not record what happened in the hearing and should be limited to essential background matters which are not part of the body of the order.</li>  <li>Any purported views of the court which did not form part of the court’s decision should not be recited.</li>  <li>The recording of a party’s position before, during, or after the hearing as a recital should cease unless the standard order template requires such information.</li>  <li>The order shall not recite the documents which the court read, or the witnesses who were heard, save in a case where an order is made without notice, in which case the details shall be recorded in a recital.</li> </ul>  Recitals must now appear at the end of the order in a schedule. In the precedents, paragraph one of the schedule lists examples of what qualifies as a “strictly necessary recital”:  <ul> <li>the agreed basis of an order</li>  <li>a concession</li>  <li>an issue resolved</li>  <li>an agreement</li>  <li>mechanical information, such as how an expert will be paid, by whom and what issues the expert should look at</li> </ul>  Is this the death of the recital?  The status of the recital in private law children cases appears to have been elevated in recent years and often more time and effort is spent trying to agree the wording of the recitals than on the substantive order.  It causes delay, increases costs and puts additional pressure on the judiciary to resolve disagreements between the parties about the wording.  This unhelpful trend has been a thorn in the President’s side for some time, yet the President’s Memorandum on drafting orders from November 2021 seems to have been seldom adhered to by many practitioners:  <a href="https://www.judiciary.uk/wp-content/uploads/2022/07/PFD-memo-on-orders-10112021.pdf">https://www.judiciary.uk/wp-content/uploads/2022/07/PFD-memo-on-orders-10112021.pdf</a>  “In my speech to the FLBA on 16 October 2021 I stated: “The task of drafting an order has become a prolonged process. Partly because of remote working, the process of negotiating the order extends for days, with input from instructing solicitors and lay parties. These drafts are embellished to a Byzantine degree.”  I had previously referred to the problems that had arisen in the agreeing and drafting of orders in my Guidance: Forms of Orders in Children Cases (17 June 2019). There I observed that: “Many judges and practitioners are not using electronic templates or programs and are, instead, preparing lengthy narrative orders in each case by a more laborious method with the result that the preparation of orders is now taking more time rather than less.”  2. In that Guidance I proposed that the first order made in any children’s case should contain the key information but that subsequent orders should be in short form omitting lengthy narrative material and containing recitals stating only who attended and their representation; the issues determined at the hearing; any agreement or concession made during the hearing; and the issues that remain outstanding. I hoped that this would mitigate the problems.  3. In the field of public law a comparable problem has been addressed by the issue of amended orders 18 April 2021 1 which should have had the effect of substantially shortening orders made in that sphere with the result that time will have been saved and contention reduced.   4. Yet, it is clear that the problem has persisted in the field of private law, both in relation to litigation about children, and about money, and that the preparation of orders has become a highly adversarial and confrontational process leading to much unnecessary verbiage and great delay in the production of agreed drafts.  5. I have been asked to consider issuing a Practice Direction regulating professional standards in this area.  6. I do not consider that the Family Court needs such a Practice Direction, at least not at the present time. However, the Family Procedure Rule Committee will have to consider introducing such a measure if the principles in this memorandum are not observed and the non-compliance with elementary principles continues.”  For further guidance on what to include in the new schedule of recitals at the end of a draft private law order, the November 2021 Memo remains a useful starting point (key points highlighted):  9. The first and most basic rule is that where the order follows a hearing its terms (including its recitals) must reflect the result of the hearing, no more, no less.  10. The purpose of a recital is not to summarise what happened at a hearing, but rather to record those essential background matters which are not part of the body of the order.  11. In my Guidance of 17 June 2019 I said that in an ideal world the aim was to encapsulate all of the essential information about a children’s case in the most recent court order so that anyone taking up a case would only need to turn to the latest order to understand the issues, the parties, the state of the proceedings and other key information.  12. However, that process has led to delay, expense and confrontation, which has continued notwithstanding the use of short form orders. Therefore, while it remains necessary in children’s cases, both domestic and those with an international element, to record the essential background matters, it is essential that this is done as shortly and as neutrally as possible and that the parties should not seek to introduce adversarial and partisan statements in their favour in the recitals to the order. This is the first area of potential conflict.  13. It is not necessary in a financial remedy order to record any background matters, although the court in its discretion may permit the parties to do so. In this event it is, again, essential that this is done as shortly and as neutrally as possible.  14. The second area of potential conflict is the practice of parties seeking to attribute views to the court which did not form part of the court’s decision. This is a surprisingly prevalent practice and gives rise to much controversy. It is a practice that must cease.  15. The third area of potential conflict is the practice of a party’s representative seeking to record that party’s position before, or during, the course of, the hearing. Again, this can give rise to much conflict, but is wholly superfluous. This, too, must cease.  16. More latitude is permissible as regards consent orders but, again, restraint in relation to the content of recitals must be exercised given the cost to the parties and the time of the court that is spent approving them.  The recital therefore remains, however, the practice of it being weaponised should now be over.

22 June 2023 & 13 July 2023 | Chancery and Commercial Property Breakfast Seminars

Join Parklane Plowden's Chancery and Commercial specialists, Dominic Crossley and Bryan Patterson Whitaker at our next set of Property Breakfast Seminars.  Registration for each seminar is from 8:00am, allowing an opportunity to prepare, network and ask any questions before the seminar session starts at 8:30am in our boardroom.  Real Property (22nd June) programme  8:00 – 8:30 – Registration, light breakfast & refreshments (Barristers Lounge)  8:30 – 9:00 – Dominic Crossley: Proprietary Estoppel - a Magic Wand When All Else Fails?  9:00 – 9:30 – Bryan Patterson Whitaker: Boundary Disputes – Pitfalls and Practicalities  Landlord and Tenant (13th July) programme  8:00 – 8:30 – Registration, light breakfast & refreshments (Barristers Lounge)  8:30 – 9:00 – Dominic Crossley: The Beginning of the End for the Private Rental Sector?  9:00 – 9:30 – Bryan Patterson Whitaker: Forfeiture – Perils and Pitfalls    Please register your attendance for each seminar <a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0xA092BEC2DACAE1A8|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0xA092BEC2DACAE1A8|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">here</a>, this link will allow to to register to both programmes.

Justifying Compulsory Retirement – Academics v Oxford University: Round 3

In September 2021, Eady J in the EAT upheld two employment tribunal decisions that had reached opposite conclusions on the lawfulness of Oxford University’s compulsory retirement policy: Pitcher v Oxford University, which Oxford won, and the slightly later case of Ewart v Oxford University, which it lost: [2022] ICR 338.  Compulsory retirement is an act of direct age discrimination and the issue in such cases is whether an employer, the burden being upon it, can justify it by reference to legitimate aims which must, according to the Supreme Court in Seldon v Clarkson, Wright & Jakes [2012] ICR 716, be of a social policy nature. The two tribunals had reached different conclusions on whether the compulsory retirement scheme was a proportionate means of achieving a number of legitimate aims.  Rather than abandon the policy or appeal to the Court of Appeal, Oxford retained the so-called Employer Justified Retirement Age (“EJRA”) policy, tweaked it in a number of ways (e.g. reduced its scope, increased the retirement age from 67 to 68) and went about gathering further  evidence to support it, some of which was seemingly designed to meet the criticisms articulated by the Ewart Tribunal.  Unsurprisingly, a further challenge to the policy made its way to the employment tribunal in Field-Johnson and others v Oxford University Case No3301882/2020 and others. Three of the claimants were academics, one was a senior administrator. By the time of the hearing, Oxford had a carried out a detailed 10-year review of the policy which had been introduced in 2011.  The creation of vacancies is generally at the heart of compulsory retirement policies. It is through the creation of additional vacancies that social policy aims, such as increasing diversity or furthering intergenerational fairness, commonly relied upon aims, can be pursued. The key finding in Ewart though was that the University had not shown that compulsory retirement had anything other than a trivial impact on the vacancy creation rate.  Most vacancies arose for other reasons, many chose to retire at or before EJRA age in any event and of those that would stay, evidence suggested they would only stay for a limited period. The result was that the vast majority of vacancies would likely exist in any event, meaning the discriminatory EJRA was having only a very modest contribution, at best, on the achievement of Oxford’s aims.  In Field-Johnson, Oxford argued that the new evidence it adduced ought to lead to a different conclusion. It relied on Little’s Law of Queueing – which had been applied in the US in similar circumstances - to model the rate at which vacancies were likely to arise as a result of different (and no) retirement ages, as well as its own analysis of the impact of the policy year on year.  It contended this showed the EJRA significantly enhanced the number of vacancies, giving it the opportunity to use those vacancies to make progress towards achieving its aims, such as increasing diversity, creating opportunities for the next generation and helping it with succession planning.  It also led evidence designed to show that the discriminatory impact of the policy was not as significant as it might appear, as retirement was cushioned both by generous pension provision (more generous than the current generation will receive, a point relevant to intergenerational fairness) and the ability of academics to stay on in an emeritus capacity post retirement.  The Tribunal however concluded, as it had in Ewart, that the University had not justified the policy: it was not a proportionate means of achieving legitimate aims. The University has since conceded the claims of direct age discrimination arising out of the enforced retirements.  By the time of the hearing, the University had already decided to remove administrators, such as Mr Field-Johnson, from the scope of the EJRA because there was insufficient evidence it was efficacious. His task was therefore a little easier. The policy remained in place for various academic grades however, two of the three academic claimants were statutory professors (the highest academic grade) and one was a reader.  The Tribunal concluded that the modelling relied upon by Oxford rested on questionable assumptions and showed at best that only up to 8% of vacancies at the statutory professor grade were attributable to the EJRA, though the figure was likely to be lower than that. The figure was even lower for the grades below statutory professor. These figures were said to be “small”.  On the other side of the scales, the Tribunal concluded the qualitative discriminatory impact of the policy was great. This was so even though retired academics could often stay on and continue making use of some of the University’s facilities and take part in  aspects of college life. Further,  the fact the policy may only have a small quantitative effect did not prevent a finding that the EJRA caused a significant and substantial discriminatory impact.  Overall, it was not satisfied the EJRA was reasonably necessary for Oxford to achieve its aims. It was having a “trivial” impact and that impact was outweighed by its highly discriminative effect.    In reaching those conclusions, the judgment contains much that may be helpful to other employers considering introducing or retaining compulsory retirement schemes:  <ul> <li>The fact the burden falls on an employer to justify such a policy is critical. That cannot be done by assertion or guesswork, cogent evidence will be needed. Where a policy has been operated for some time, an employer ought to be monitoring it, collecting data and periodically reviewing it. Justification is an on-going process;</li> </ul>  <ul> <li>The Tribunal was critical of Oxford for failing to keep contemporaneous records to evidence the effect of the EJRA. It could have done so by eliciting information in exit interviews to determine why people were leaving when they did and when they might otherwise have left if their departure was EJRA related. Instead, it had to rely on surveys after the event of those that had already retired and could be bothered to respond. These surveys were unreliable because the samples were small and self-selecting. The Tribunal concluded that the mathematical analysis Oxford had adopted could only ever be second best to information elicited in exit interviews;</li> </ul>  <ul> <li>Oxford had relied on diversity data to illustrate the positive progress it had made. However, its case on this was significantly weakened by any lack of reliable statistics relating to protected characteristics other than sex. In any event, the Claimants’ case was that progress towards improving gender diversity was slow and did not compare favourably with progress at other Russell Group universities, none of which operated compulsory retirement schemes;</li> </ul>  <ul> <li>The Tribunal held that Oxford had not properly considered alternatives to the EJRA, dismissing options that had been canvassed too readily and without proper reasoning. This was despite the fact its 10-year Review Group had devoted time in a number of meetings specifically to considering alternatives having received oral and written evidence, which is likely to be more than many employers manage. This perhaps illustrates the difficulties employers have in meeting the test for justification, given the burden is on them and the test involves a consideration of whether aims could be achieved via less discriminatory means.</li> </ul>  <ul> <li>The Tribunal did not think that Oxford could rely on its own convoluted internal procedures to justify what would otherwise be direct age discrimination: a warning to employers thinking of arguing that their internal recruitment processes contribute to the difficulty of securing replacements timeously where vacancies arise with limited notice.</li> </ul>  Whether Oxford will now abandon the policy or retain it and wait for the next challenge, in the hope that a different tribunal will reach a different decision, remains to be seen. That is clearly a possibility in light of the EAT’s conclusion in Pitcher and Ewart that there is no legally correct answer to the question of justification in all cases, it is a matter for a tribunal based on the evidence it hears. That sits uneasily with legal certainty. For the time being, the policy remains in place and each year, a new tranche of academics are forced to retire, some before they would wish to do so. Unless the policy is abandoned, “Round 4” seems inevitable.  These series of judgments do not mean compulsory retirement can never be justified. It will depend on the evidence adduced by the particular employer in the particular sector in which they operate. Oxford is a large, somewhat unique, employer and the position may be very different for a small employer with scarce opportunities available for promotion. The Ewart and Field-Johnson judgments do however illustrate the difficulties of justifying such schemes and the lengths to which an employer is likely to have to go in order to do so.  Andrew Sugarman represented the academic claimants in Field-Johnson, and Professor Ewart in the ET and EAT in Pitcher and Ewart.

REPLAY: Employment Law with Lunch, 18 May 2023

<iframe width="560" height="315" src="https://www.youtube.com/embed/K8ka1ksmD_c" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>   Parklane Plowden's 'Law with Lunch' webinars bring you the latest law updates.  Barrister and employment specialists, Gareth Price and Lucy Bairstow discuss Mitigation of loss; getting it right.  Assessing compensation during remedy hearings requires Tribunals to engage with whether the Claimant mitigated their losses. The concept is often not understood and not often argued well. This talk aims to clarify the principle as it relates to dismissed employees and set out practical guidance on how to best argue it.  Click the video to watch the webinar recording.

Court Of Appeal Clears Article 3 LOGJAM

The Court of Appeal has now handed down its long-awaited decision in the case of AB v Worcestershire County Council and others [2023] EWCA Civ 529. The decision provides important clarification of the Article 3 duties owed by local authorities to children in their area. However, the court did not take the opportunity to provide any guidance on the “threshold” of seriousness required for a breach of Art3.  The claim was brought against two local authorities. AB lived in the defendants’ areas, with his mother until he was accommodated by the local authority, aged 11 and taken into care aged 12. Whilst in the care of his mother he was subjected to a number of incidents of abuse and neglect, which were recorded by the local authorities.  At first instance, the judge accepted the second defendant’s submission that a local authority owed no duty to children in its area under Art3, who were not under its “care and control.” This finding had been a surprise to most practitioners, flying, as it did, in the face of longstanding ECtHR authority (E and others v The United Kingdom (33218/96), DP & JC v The United kingdom (38719/97). Very sensibly, the defendants conceded this issue on appeal and that concession was endorsed by the court as having been correctly made [85]. Although not surprising, this development brings to an end 16 months of unwelcome uncertainty and will allow many cases to be resumed, which had been stayed pending the outcome of this appeal.  The judgment is the first occasion on which a domestic appeal court has considered the application of Article 3 to a local authority’s duty to protect a child from neglect and abuse. It provides a clear and concise statement of the test [57-63], which is likely to be useful to practitioners and trial judges.  The court also noted [82] that: “This is not a negligence claim where a court would be considering whether a …social worker had acted in accordance with a body of expert opinion…the question was whether “judged reasonably” [the defendants] had failed to take appropriate steps to avoid a real and immediate risk of Article 3 ill-treatment.. was a question for the court, not for expert evidence.” This principle might prove useful for Claimants, particularly in historic cases, where social work practice at the time might now be thought  to be woefully inadequate but might have satisfied the Bolam test.  The appeal failed on its facts. The court upheld the finding that, whilst the Claimant was “vulnerable and at risk of being subjected to poor and inconsistent parenting and neglect”, he was not at a “real and immediate risk” of treatment of the kind prohibited by Article 3. In other words: his mis-treatment had not met the Art3 “threshold”.  The appeal was determined on the basis that the Claimant had suffered only seven relevant incidents over a period of nine years. The particular circumstances of those incidents should be ascertained from the judgment, but many practitioners might conclude that the frequency and severity of the incidents is towards the lower end of the range of cases with which they are involved. As such, the failure of this appeal on its facts is likely to have little, if any, effect on most claims.  In summary, the judgment:  <ol type="a"> <li>Confirms that a local authority owes an Art3 operational duty to children within its area, irrespective of the extent or absence of “care and control” and restores the law to its position prior to the decision at first instance;</li>  <li>Thereby removes the “logjam” caused by cases that had been stayed pending the outcome of that decision;</li>  <li>Sets out, and applies, the (well established) test for Art3 in the context of a “failure to remove” case against a local authority;</li>  <li>Notes that the assessment of the reasonableness of the defendant’s actions is a matter for the court, not expert opinion, and that, in effect, the defendant cannot avail itself of a Bolam defence;</li>  <li>Provides an illustration of a case in which the frequency and severity of incidents falls below the Art 3 “threshold”;</li>  <li>Does not take the opportunity to provide any guidance on the frequency and severity of abuse/neglect that would meet the “threshold.” This will be a matter of regret, but perhaps not surprise, for practitioners. The level of the “threshold” remains an open question and is one that will probably only be answered as a body of decided cases emerges over time.</li> </ol>

Parklane Plowden’s Commercial team are delighted to welcome Gregory Pipe as a Door Tenant

Greg Pipe has recently joined Parklane Plowden as a door tenant, strengthening and expanding the commercial team, he brings with him a wealth of experience as a commercial practitioner who litigates and advises on complex and high value disputes in both England, Wales and internationally.  Adding strength and depth to the commercial team Greg’s practice covers a wide range of commercial disputes that often involve company and property issues, business sale and shareholder disputes, complex technology, hardware, telecoms and engineering disputes, breaches of fiduciary duty by JV company directors and shadow directors. He is also often asked to assist with matters concerning breaches of director’s duties and other forms of prejudicial conduct.  For further information, or if you would like to discuss instructing Greg Pipe, please contact <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/">Stephen Render</a>, Practice Director, Chancery and Commercial.

Stuart Jamieson appointed as a Recorder

Parklane Plowden are delighted to announce that Stuart Jamieson has been appointed as a Recorder for the North Eastern Circuit in Family. His appointment will take effect from Tuesday 30 May 2023.  Stuart will carry out his new role on a part-time basis and will remain able to accept instructions.  Ranked in Legal 500 and Chambers and Partners for Clinical Negligence and Personal Injury, Stuart also sits as a Deputy District Judge (Civil) and is the head of the Civil Team at Parklane Plowden.  Stuart’s full profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/stuart-jamieson/">here</a>.

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