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Dove v Assistant Coroner for Teesside [2023] EWCA Civ 289 (17 March 2023)

<!-- wp:paragraph --> <p>Mrs Dove’s daughter took her own life after DWP benefits were withdrawn.&nbsp;In September 2021, the Divisional Court refused her application under s13 of the Coroners Act 1988 to quash the Coroner’s determination and direct a new inquest. The Divisional Court considered that the question of <strong>'how'</strong> someone died in a <em>Jamieson</em> inquest was directed only to the means by which the deceased died, and did not encompass the wider circumstances of their death. In this case, the Court of Appeal considered the meaning of <strong>‘by what means’</strong>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In <em>Middleton </em>the House of Lords considered that a coroner determining <strong>‘how’</strong> a person died in a non-Art 2 inquest need only determine <strong>‘by what means’</strong> they died and not the broad circumstances.&nbsp; The meaning of <strong>‘by what means’</strong> has, however, remained elusive.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>By way of background, Jodey Whiting died as the result of suicide having taken an overdose of prescription medication. She had a history of mental health problems, including depression and emotionally unstable personality disorder, and was in receipt of Employment and Support Allowance (‘ESA’).&nbsp; It was known to the DWP that she was vulnerable and had previously had suicidal thoughts. &nbsp;&nbsp;At her inquest, Mrs Dove expressed the view that the cessation of her daughter’s ESA, housing benefit and council tax benefit had contributed to the mental distress that led to her suicide.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The coroner held that Art 2 procedural obligations were not engaged and that the actions and decisions of the DWP fell outside the scope of her investigation, albeit on returning a suicide conclusion, the coroner did note within her factual findings that “Jodey had her ESA claim turned down in the weeks before her death” and that her family believed that “this caused extra stress that was a contributing factor in her death.”</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Two pieces of evidence were obtained by Mrs Dove following the inquest: (1) a report from an Independent Case Examiner (the ‘ICE Report’) which found shortcomings in the handling of Ms Whiting’s case by the DWP and (2) an expert psychiatric report that expressed the opinion that there was likely to have been a causal link between the cessation of Ms Whiting’s benefits and her state of mind immediately before her death.&nbsp; It was in the light of this fresh evidence that Mrs Dove had sought a fresh inquest.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In dismissing the s13 application, the Divisional Court considered that the question of <strong>how</strong> someone died in a <em>Jamieson</em> inquest was directed only to the means by which the deceased died and did not encompass the wider circumstances of their death, meaning that ‘how’ Ms Whiting died had been properly recorded at the brief inquest.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Divisional Court’s view regarding the psychiatric report was that whilst it postulated a causal link between the DWP’s failings and Ms Whiting’s state of mind immediately before her death, it did not establish a causal link with the death itself.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Divisional Court considered that Art 2 obligations were not engaged.&nbsp; There was no <strong>operational duty</strong> owed to Ms Whiting as: (i) the DWP had not assumed responsibility for her; (ii) her vulnerabilities were not exceptional; and (iii) the risk to her life by suicide was long-standing. &nbsp;There was no arguable breach of the <strong>systems duty</strong> because the DWP’s failings had been individual in her case and not structural or systemic in nature.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>When the case came before the Court of Appeal, it was no longer asserted that the coroner needed to carry out an inquiry into the DWP’s systems and policies since the ICE report served that purpose.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Mrs Dove argued that the Divisional Court had (1) adopted the wrong approach to causation by looking at whether the DWP’s failures directly caused Ms Whiting’s death rather than whether those failings were a <strong>more than trivial cause</strong> of her mental health deterioration and (2) drawn an artificial distinction between Ms Whiting’s mental health and her ultimate death since the former resulted in the latter.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Mrs Dove sought (1) a fresh <em>Jamieson</em> inquest to investigate the issue of causation in respect of the deterioration in her daughter’s mental health just before she took her own life, and (2) a finding that Art 2 obligations were engaged in any event.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The coroner’s position was that to direct a second inquest would result in coroners having to explore ‘why’ rather than ‘how’ someone died, &nbsp;necessitating inquiry into the causes of a person’s psychiatric problems in suicide cases, which would be a controversial task and fell outside the required scope of an inquest in any event.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court of Appeal agreed that the specifics of the DWP’s errors and policy breaches lay beyond the scope of any <em>Jamieson</em> inquest, &nbsp;however the question was whether the inquest should now consider the causative impact of the DWP’s admitted failings.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The threshold for causation of death is of course that on the <strong>balance of probabilities</strong>, the conduct must have <strong>more than minimally, negligibly or trivially </strong>contributed to it.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Divisional Court was wrong to approach causation on the basis of whether the death would have occurred “but for” the particular act or omission.&nbsp; Causation in inquests is a broader concept, encompassing acts or omissions which contribute more than minimally, negligibly or trivially to death. &nbsp;It is therefore open to a coroner in a suicide case to consider the extent to which acts or omissions contributed to the deceased’s mental health deterioration, which in turn led them to take their own life.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Divisional Court’s error was that they suggested that mental health deterioration could be separated from death, the latter being the end point of the former.&nbsp; The way in which the abrupt cessation of benefits was likely to have affected Ms Whiting’s state of mind was an issue that was ‘well within the scope of a <em>Jamieson</em> inquest’. &nbsp;It not only went to the issue of <strong>intention</strong>, but would assist the coroner in the formulation of a <strong>narrative conclusion</strong>, to reflect the particular anxiety and distress suffered by Ms Whiting before she took her own life.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>It would be open to a coroner presiding over a fresh inquest to find that the sudden withdrawal of benefits contributed to a deterioration in Ms Whiting’s mental health and record a <strong>brief, neutral, factual narrative conclusion</strong> such as: “The deceased took her own life as a result of a deterioration in her mental state exacerbated by the abrupt cessation of her ESA by the DWP”<em>.</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The wide discretion conferred on coroners includes establishing the background facts and considering contributory factors before determining whether those facts were or were not causative of death. &nbsp;Restricting a coroner’s discretion to conduct whatever investigations are appropriate within the ambit of a <em>Jamieson</em> inquest to establish ‘how’ the deceased came by their death would be undesirable.&nbsp; Moreover, where suicide is raised as a possible conclusion, part of the coroner’s role is to investigate whether the deceased intended to take their own life and whether the deceased acted while their mind was disturbed (with that fact being recorded if it is established). &nbsp;The cause or causes of disturbance of the mind may be closely connected to the matters which are already before the coroner.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court of Appeal went on to consider whether it was necessary or desirable to have a<strong> fresh inquest</strong>.&nbsp; Having established the discretion to consider the impact of events on Ms Whiting’s mental health, the Court of Appeal went on to consider whether in this particular case it was <strong>‘necessary and desirable’</strong> to hold a fresh inquest (applying the s.13 <strong>‘Hillsborough test’</strong>).&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The function of an inquest is to seek out and record as many of the facts concerning the death as the <strong>public interest</strong> requires and to establish the <strong>‘substantial truth’</strong>. &nbsp;In this case the extent to which the DWP’s actions contributed to Ms Whiting’s mental health was part of determining the ‘substantial truth’ and if the death was connected to the abrupt cessation of benefits, the public had a legitimate interest in knowing that.&nbsp; The judges were unanimous that the interests of justice required Mrs Dove to have the opportunity to invite a coroner, at a fresh inquest, to make a finding of fact that the DWP’s actions contributed to her daughter’s deteriorating mental health.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court of Appeal held that Art 2 was not engaged on the basis that the basic ingredients of an Article 2 <strong>operational duty</strong> (as outlined in <em>Rabone</em>) were not present. &nbsp;The fact that the DWP is the agency responsible for administering the welfare benefits system does not of itself involve any assumption of responsibility to safeguard against the risks of suicide or self-harm by all those with whom it has dealings.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Takeaways:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>1) The discretion as to an inquest’s <strong>scope</strong> remains with the coroner.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>2) Whilst the touchstone of causation is important, when setting their investigation’s scope, it is still for the coroner to decide what <strong>‘by what means’</strong> actually means for each inquest.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>3) When addressing the <strong>‘how’</strong> question a coroner may, and in some cases should, in the exercise of their discretion, go beyond a bare determination of the mechanism of death. A more detailed exploration of causation may be required to meet the interests of justice.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>4) <strong>Causation</strong> in the context of an inquest means making a material (i.e., more than trivial) contribution, of which there must be evidence.&nbsp; The subjective opinion of the family is not evidence and will not suffice without more.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>5) Where it is said that the state of mind of someone who killed themselves was contributed to by their partner’s infidelity, the interests of justice are not likely to require the affairs of individuals to be investigated in public at an inquest.&nbsp; However, where the <strong>shortcomings of a public body</strong> are said to have contributed to a deterioration in mental health, it is harder to see why a coroner would exercise their discretion so as to ignore this factor.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>6) Even where Art 2 is not engaged, the bereaved family and the public have a legitimate interest in knowing how public bodies’ actions impact on citizens’ mental health.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>A copy of the Court of Appeal judgment is <a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__email.coronersociety.org.uk_c_eJxkzj1uxCAQQOHTQBcEMwM2BUWavcaKnyFGu2ssTGTl9tFK6VJ9zSteCcl6a53kYNziCWhdjdzCajIunJB85WqQQefqTKzRFl-5FMEmULoAE1gjGrJdJK11IwYXKOlojeC9K5j77zOHtuPH9UH1-5Fq-2DyGfYZvzOAV-2DCrgJuF3Xpf6XAm739npztHy-2DKfX-2DtwjkPjyROkqVIzziaPvFz3MTpNNs-2D-2DSx81S5v34DAAD-5F-5F-2DC-2DREQ&amp;d=DwMFaQ&amp;c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&amp;r=BRZ95pjmCh-tfCekrLZ-l8USk2pXHnZA-0k36JQ6wsA6ebOyTWGcER0g81JbdmB_&amp;m=NRa0P0pKarMeglsijZ49R7PSeWCoBXVi1ceokXvnuu4&amp;s=AgC-VPu73P4tEckfG05gPJCpOIXAPFOszkWvCVadadA&amp;e=" target="_blank" rel="noreferrer noopener">here</a>.</p> <!-- /wp:paragraph -->

Parklane Plowden Podcast &#8211; Understanding coroner inquests and the role of lawyers

<!-- wp:paragraph --> <p>Listen to Parklane Plowden’s latest podcast: <a><em>Understanding coroner inquests and the role of lawyers</em>.</a></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Head of our Inquests and Inquiries Team and Assistant Coroner for Gateshead and South Tyneside, <a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes </a>is joined by the Deputy Chief Coroner for England and Wales and Senior Coroner for the City of Sunderland, Derek Winter DL, to discuss the role of the coroner service and the inquest process.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The two also discuss the role of lawyers in coroner courts and how effective legal representation can support different participants throughout the inquest process. &nbsp;&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Helpful resources and further reading:</p> <!-- /wp:paragraph --><!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/courts-and-tribunals/coroners-courts/office-chief-coroner/">Office of the Chief Coroner</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.gov.uk/government/publications/guide-to-coroner-services-and-coroner-investigations-a-short-guide">Guide to coroner services for bereaved people</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.gov.uk/government/statistics/coroners-statistics-2021/coroners-statistics-2021-england-and-wales#:~:text=In%202021%2C%2055%25%20of%20deaths,mortem%2C%20no%20change%20on%202020.&amp;text=In%20the%20majority%20(79%25),a%20post%2Dmortem%20was%20held.">The latest coroner statistics for England and Wales</a> (2021)</li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.sra.org.uk/solicitors/resources/practising-coroners-court/">Solicitors Regulation Authority Coroner inquest toolkit</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.barstandardsboard.org.uk/for-barristers/resources-for-the-bar/resources-for-practising-in-the-coroners-courts.html">Bar Standards Board Coroner Inquest toolkit</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/courts-and-tribunals/coroners-courts/coroners-legislation-guidance-and-advice/coroners-guidance/">Chief Coroner Guidance and Law Sheets</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2022/09/GUIDANCE-No-44-DISCLOSURE-final.pdf">Disclosure requirements for coroner inquests</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/guidance-and-resources/chief-coroners-guidance-no-33-suspension-adjournment-and-resumption-of-investigations-and-inquests1/">Resumption guidance</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/guidance-and-resources/chief-coroners-guidance-no-41-use-of-pen-portrait-material1/">Pen Portrait material guidance</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2016/02/law-sheets-no-2-galbraith-plus.pdf">Galbraith Plus</a></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/courts-and-tribunals/coroners-courts/reports-to-prevent-future-deaths/">Prevention of Future Deaths</a></li> <!-- /wp:list-item --></ol> <!-- /wp:list -->

Third-Party Harassment at Work

<!-- wp:paragraph --> <p><strong><u>Existing law</u></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Employees are currently protected against harassment committed by their employer (s.26(2) EqA 2010).</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>However, modern workplaces mean that many workers often interact with third-party contractors or partner organisations during their working days. Frequent interaction with customers is also of course common for many, and high-profile companies such as Ikea and McDonalds have recently signed up to agreements with the Equality and Human Rights Commission (the Commission) relating to sexual harassment policies.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Harassment (that is, unwanted conduct related to a protected characteristic creating the proscribed environment) of an employee, committed at work by a customer or employee of such third-party organisation, would not be caught under existing provisions.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><u>Impending changes to the law</u></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Worker Protection (Amendment of Equality Act 2010) Bill (presently – March 2023 - at stage 2 reading in the Lords) will give that protection to workers.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Bill will add the following to the EqA 2010, s.40:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>“The circumstances in which A is to be treated as harassing B under subsection (1) include those where—</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>(a) a third party harasses B in the course of B’s employment, and</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>(b) A failed to take all reasonable steps to prevent the third party from doing so.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>(1B) A third party is a person other than—</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>(a) A, or</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>(b) an employee of A’s.”</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Bill will also impose on employers a positive duty to prevent sexual harassment of employees.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This requirement will not be enforceable <em>per se</em> via an Employment Tribunal claim, but where a claim of sexual harassment is made out, an ET must consider contravention of the positive duty when determining any appropriate remedy, with the power to increase any award by up to 25%.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The second of these two changes will be enforceable by the Commission.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><u>What does it mean for employers and employment lawyers?</u></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>First</strong>, the basic tenets of a harassment claim have not altered. Though the potential scope of persons who may be capable of committing the act has increased, those persons must still engage in unwanted conduct, related to a relevant protected characteristic, and which creates the proscribed environment (s.26(1)(b) EqA 2010).</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Second</strong>, whilst the positive duties imposed by the Bill on employers concerns sexual harassment, the provisions enabling enforcement via individuals and the Employment Tribunals extends to all those protected characteristics to which harassment claims can presently be brought. It is reminded that this does not include marriage and civil partnership or pregnancy and maternity. It is only where the harassment claim related to conduct of a sexual nature will the increased remedial powers apply.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Third</strong>, the likely battle ground for employment lawyers will be the ‘all reasonable steps’ phrase – that is, when will an employer have failed to have taken all reasonable steps to prevent a third party from harassing an employee?</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The employer has no direct control over the third-party, no disciplinary or other similar measures can be brought to bear against the putative discriminator. Further, the employer may have no independent knowledge at all of the circumstances in which the acts take place.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Will all reasonable steps extend to seeking to understand the policies of customers or contractors? Will it extend to understanding the active measures put in place by those bodies to combat and prevent harassment at work? Will it extend to requiring, for instance, changes to who or how any particular business interactions takes place? Will it extend to requiring employers to not do business with another if it could not be reasonably satisfied that harassment would not occur?</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>At present, it is probably right that having policies, which it can be shown were actively and effectively being disseminated with relevant third-parties, and which were being implemented and endorsed, will be key.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Further, presently within the Equality Act, an employer may defend a claim on the basis that it took ‘all reasonable steps’ to prevent an employee from doing the thing that the Claimant contends constituted the discriminatory act (s.109(4) EqA 2010).</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>It may be that the case law assessing that terminology will be turned to by Tribunals seeking to give effect to the Bill’s provision. If so, the EHRC Code provides an example of a policy being disseminated, managers trained and an offending employee being disciplined. As with that defence, the Bill’s provision will require an employer to demonstrate what action it took prior to the act occurring – taking remedial action after the act will not be sufficient.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Other relevant factors in determining if ‘all reasonable steps’ were taken will include likelihood of the step being effective at preventing harassment from occurring, cost and practicability. That latter factor will be particularly important given the usual toolkit available to an employer with regards to its employees will not be as available.</p> <!-- /wp:paragraph -->

EAT guidance on strike out and disputed facts: Kaul v Ministry of Justice and ors

<!-- wp:paragraph --> <p>The Claimant appealed against a decision under Rule 37(1)(a) of the Employment Tribunal Rules, striking out claims of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment, and discrimination arising from disability, on the ground that the claims had no reasonable prospect of success. The struck-out claims arose from the way in which grievances had been addressed (but did not concern the substantive outcome of the grievances). </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Claimant took issue with various aspects of the grievance process, the struck-out claims pertained to a delay in responding to grievances, requesting a schedule of complaints, informing the Claimant her grievances may be out of time and asking her to set out why they were not, and refusing to accept that the Claimant was disabled. The pleaded case did not particularise why or how these acts were said to amount to the various forms of pleaded discrimination.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The EAT considered whether the strike out was consistent with <em>Ezsias v North Glamorgan NHS Trust</em>, that a claim should not be struck out where there were facts in dispute between the parties which might affect the decision.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The EAT held that the Employment Judge had been entitled, as a matter of assessment, to reach the conclusions he had. The need for caution when considering a strike-out application does not prohibit realistic assessment where the circumstances of the case permit. As per the ruling of the CoA in <em>Ahir v British Airways</em> [2017], it is open for a tribunal to strike out a claim, even if there are material disputed facts, where there is on the face of it a straightforward and well-documented innocent explanation, and the Claimant’s case proceeds on the basis of a mere assertion that that explanation was not the true explanation, without the Claimant being able to advance some basis for that being so. In this case, the claims rested on undisputed events. The matters complained of were apparently ordinary events that might occur in the course of any grievance process. No part of the Claimant’s case explained why those events should not be taken at face value. In these circumstances, the decision that the claims had no reasonable prospect of success was one reasonably open to the Employment Judge.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The case is essential reading for those making strike out applications for Respondents based on claims having no reasonable prospects of success. Tribunals are, understandably, reluctant to strike out claims, particularly discrimination claims. The EAT noted that the rarity of strike outs for want of reasonable prospects of success “<em>is the clear tenor of the authorities, all of which identify the caution Tribunals must apply when dealing with Rule 37(1)(a) applications</em>.” What is clear though is that “<em>that submission on its own, is not sufficient</em>”, and each case must be determined on its merits. The case will be useful for respondents making applications is such cases, where it is not infrequent to be met by outright refusal to consider strike out.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Equally, the case should serve as a salutary remined to those pleading claims that to simply set out a factual background, followed by an allegation of discrimination is insufficient; there must be some explanation as to why events that may have an innocuous explanation, should not be taken at face value. Crucially, whilst when considering such an application a tribunal should take the Claimant’s case at its highest, <em>“taking a case at its highest does not require a Tribunal to speculate on a case that a claimant might have advanced, but has not advanced.”</em></p> <!-- /wp:paragraph -->

SEA CHANGE: bon voyage to many PI and fatal claims in the Admiralty Court

<!-- wp:paragraph --> <p>The knotty matter of having to issue personal injury and fatal accident claims occurring on ships in the Admiralty Division of the High Court is soon to addressed by amendments to the Civil Procedure Rules which will be launched on 6 April 2023.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>CPR 61 governs claims to be issued in the Admiralty Court.&nbsp; The present r.61.2 (1) (a) (v)<a href="#_ftn1" id="_ftnref1">[1]</a> states:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>‘The following claims must be started in the Admiralty Court –</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>(a) a claim –</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>(v) for loss of life or personal injury specified in section 20(2)(f) of the Senior Courts Act 1981.’</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Where s.20 (2) (f) of the Senior Courts Act 1981 provides:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>‘(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in the consequence of the wrongful act, neglect or default of:</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>i. the owners, charterers or persons in possession or control of a ship; or</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>ii. the master or crew of the ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In essence, it means any accident on a ship is likely to fall within CPR 61.&nbsp; And that has long given rise to headaches.&nbsp; Claimants mistakenly issue in the County Court, are forced to transfer their claim over to the Admiralty Court, only for the Admiralty Court to transfer it right back to whence it started.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In response to this unwarranted complexity, the Civil Procedure Rule Committee have decided it is time to rock the boat.&nbsp; From 6 April 2023, r.61.2 (1) (a) (v) is to be overhauled, replaced by r.61.2 (2):</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>‘Any other admiralty claim may be started in the Admiralty Court and a claim for loss of life or personal injury specified in Section 20(2)(f) of the Senior Courts Act 1981 should be started in the Admiralty Court in the circumstances set out in Practice Direction 61’.</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The updated Practice Direction 61 will stipulate, as at paragraph 2.8:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>‘[Personal injury and fatal accident] Claims [falling within s.20 (2) (f) of the Senior Courts Act 1981] should not be commenced in the Admiralty Court unless they require or would benefit from the specialist knowledge and experience of that court. That is likely to include personal injury claims which:</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>(a) involve questions of navigation, seamanship, boat or ship-handling skills and/or acts or omissions relating to sea state;</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>(b) arise out of the shipwreck, capsizing or stranding of the ship, or explosion or fire in the ship;</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>(c) are employer’s liability claims relating to or concerning equipment or working practices peculiar to a ship;</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>(d) raise difficult or novel questions of private international law or of the interpretation of the Athens Convention.’</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>So, the sea of claims arising out of slips and trips on ships will, by and large, no longer sink or swim under the watch of Admiralty.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This means plain sailing for claimants who would previously have been caught out in the choppy waters of issuance.&nbsp; And in the wake of this amendment, it means many such claims will be subject to the fast-track fixed costs regime under CPR 45.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Robert Allen is a pupil in Chambers currently under the supervision of Jim Hester.&nbsp; He will be accepting instructions in second six from 3 April 2023.</p> <!-- /wp:paragraph --><!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --><!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> White Book 2022 Edition, Volume 2, page 669</p> <!-- /wp:paragraph -->