Victoria Steele, Author at Parklane Plowden

Welcome back Lucy Bairstow

Parklane Plowden are delighted to welcome back Civil and Employment barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/lucy-bairstow/">Lucy Bairstow</a>.  Lucy will be returning to Chambers on the 21 March after a period of maternity leave. She will be accepting instructions from next week.  To instruct Lucy, please contact the clerks at <a href="mailto:clerks@parklaneplowden.co.uk">clerks@parklaneplowden.co.uk</a> or alternatively contact the clerks on 0330 390 4301 (Civil) / 0330 390 4302 (Employment)  You can find out more about Lucy and her practice <a href="https://www.parklaneplowden.co.uk/our-barristers/lucy-bairstow/">here</a>.

23 March 2023 | Fact-finding hearings: Proportionality & Pleadings

Join us on the 23rd of March, 17:00 - 18:00 for the next instalment of our PLP Family, Public Law group seminars.  <a href="https://www.parklaneplowden.co.uk/our-barristers/maxine-best/">Maxine Best</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/shabab-rizvi/">Shabab Rizvi</a> will be discussing 'Fact-finding hearings: Proportionality & Pleadings.'  Nibbles and refreshments will be available on the evening.  This event is in person only at Parklane Plowden Chambers, Leeds.  Please email events@parklaneplowden.co.uk to RSVP colleagues, we can then add them to our system.  Space is limited and places will fill up fast.

Junior Chancery and Commercial Coffee Morning

Join our Junior Chancery and Commercial Group on the 29th March for a chance to network over breakfast and coffee at in our Leeds Chambers.  The coffee morning will run from 8:00AM, please feel free to drop in anytime between 8:00 - 9:00AM.  This is a free event for Chancery and Commercial specialists, places will fill up quickly.    Book your space <a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0xD831809767835023|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0xD831809767835023|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">here</a>.

Parklane Plowden sponsor the Northern Acquired Brain Injury Forum Conference – 28th June 2023

We are delighted to be sponsoring the NABIF conference alongside our friends Burnetts on the 28th June 2023.  This event is for people affected by brain injury/Case Managers/Personal Injury Solicitors/Health and Social Care Professionals.  For those looking to book an exhibition stand, please email <a href="https://www.parklaneplowden.co.uk/our-staff/victoria-steele/">Victoria Steele</a> who will gladly assist. Exhibition stands are £700, this includes three delegate spaces. When making your booking please provide the name and contact details of the three delegates.  For those wanting to attend the event, tickets are £70pp. You can purchase your ticket via <a href="https://www.eventbrite.co.uk/e/northern-acquired-brain-injury-forum-conference-28th-june-2023-tickets-557669403197">Eventbrite</a>.

D v R [2023]: An important reminder of the application of Part 3A and Practice Direction 3AA

[2023] EWHC 406 (Fam)<a href="#_ftn1" id="_ftnref1">[1]</a>  Rajni Virk, Pupil Barrister  In this recent authority, Mrs Justice Theis DBE considers an appeal following a fact-finding hearing on the grounds that Part 3A and Practice Direction 3AA Family Procedure Rules 2010 were not complied with by the judge. This appeal was allowed, the findings were set aside and the case was remitted to the Designated Family Judge to consider a re-hearing. This case provides a helpful legal framework of the important provisions when the case involves a vulnerable party.  Background  The parties had been in a relationship since 2015, married in May 2019 and separated in June 2021. They had one child together (X) who was born in 2020. Since separation, X remained living with the mother. The father made an application in December 2021 to spend time with X. During the proceedings, the mother made allegations of domestic abuse against the father. The fact-finding hearing took place remotely in September 2022 before Recorder Bradberry, it lasted for four days and both parties were legally represented.  The mother appealed the judgment on the grounds that the judge failed to comply with the court’s duties under Part 3A and Practice Direction 3AA Family Procedure Rules 2010 (‘FPR’) and section 62 Domestic Abuse Act (‘DAA’) and how the court dealt with section 98 Children Act 1989.  Legal Framework  At paragraphs 19 – 24 Mrs Justice Theis DBE helpfully sets out the key law applicable to appeals and participation of vulnerable parties in proceedings.  Appeals  An appeal may only be allowed where the decision of the court was wrong or there was a procedural irregularity, such that the decision made was unjust<a href="#_ftn2" id="_ftnref2">[2]</a>. This conclusion can be reached by the appellate court where;  <ol type="a"> <li>there has been an error of law;</li>  <li>the judge had clearly failed to give due weight to some very significant matter or, by contrast, has clearly given undue weight to some matter not deserving of it<a href="#_ftn3" id="_ftnref3">[3]</a>;</li>  <li>that a conclusion has been reached on the facts before the court which was not open to the judge reaching them on the evidence<a href="#_ftn4" id="_ftnref4">[4]</a>;</li>  <li>that a process has been adopted at the court below which is procedurally irregular and unfair to such an extent that it renders the decision made unjust<a href="#_ftn5" id="_ftnref5">[5]</a>; or</li>  <li>that a discretion has been exercised which is outside the parameters within which it is possible to heave reasonable disagreement<a href="#_ftn6" id="_ftnref6">[6]</a>.</li> </ol>  Participation of Vulnerable Parties  This is governed by FPR Part 3A “Vulnerable Persons: Participation in Proceedings and Giving Evidence” and is supplemented by Practice Direction 3AA (‘PD3AA’). No definition is given to ‘vulnerability’ however, some factors the court may consider are set out in PD3AA paragraph 2.1. These provisions were introduced in 2017 and FPR 3A was amended in 2022 for cases involving allegations of domestic abuse. These changes were helpfully summarised by Mrs Justice Knowles in Re M (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), which highlighted the inclusion of Rule 3A.2A; ‘Court’s duty to consider making participation directions: victims of domestic abuse’ and the amendments following the implementation of the Domestic Abuse Act 2021 (particularly section 63).  In her judgment, Mrs Justice Theis DBE identifies Mrs Justice Knowles’ summary in Re M as essential reading for any judge involved in proceedings with allegations of domestic abuse. A summary of the steps that a court should follow in these circumstances are:  (1) Is this a case where there are allegations of domestic abuse within the definition of  section 1 DAA? Section 1 defines “domestic abuse” as follows:  (2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if –  (a) A and B are each aged 16 or over and are personally connected to each other, and  (b) the behaviour is abusive.  (3)Behaviour is “abusive” if it consists of any of the following –  (a) physical or sexual abuse;  (b) violent or threatening behaviour;  (c) controlling or coercive behaviour;  (d) economic abuse;  (e) psychological, emotional or other abuse;  and it does not matter whether the behaviour consists of a single incident or a course of conduct.  (4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to –  (a) acquire, use or maintain money or other property, or  (b) obtain goods or services.  (5) For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the  fact that it consists of conduct directed at another person (for example, B’s child)”.  (2) If there are allegations of domestic abuse s 63 DAA applies and Rule 3A.2A provides:  3A.2A Court’s duty to consider making participation directions: victims of domestic abuse  (1) “where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court must assume that the following matters are diminished –  (a) the quality of the party’s or witness’s evidence;  (b) in relation to a party, their participation in the proceedings”…  (3) Where the assumption set out in paragraph (2) above applies, the court “must consider whether it is necessary to make one or more participation directions” (Rule3A.2A(3)) (emphasis added). Participation directions are often referred to as ‘specialmeasures’.  (4) It is important to keep in mind, and distinguish between, the need for participation directions to facilitate participation in a hearing from those relating to how evidence is given. As regards participation in a hearing, there is a need for that to be considered at the start of the proceedings (and kept under review), whereas those applying to the giving of oral evidence may be additional and/or different to any earlier participation directions. As regards those that may be required for giving evidence, they may best be considered after the written evidence has been filed.  (5) A ground rules hearing should be held. PD3AA para 5.2 states “When the court has decided that a vulnerable party, vulnerable witness or protected party should give evidence there shall be a “ground rules hearing” prior to any hearing at which evidence is to be heard, at which any necessary participation directions will be given’. There is no need for this to be a separate hearing to any other hearing in the proceedingsbut a part of the hearing should specifically relate to consideration of any participationdirections.  (6) Rule 3A.7 sets out a list of matters to which the court must have regard to “when deciding whether to make one or more participation directions:  (a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of –  (i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or  (ii) any members of the family of the party or witness;  (b) whether the party or witness –  (i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;  (ii) has a physical disability or suffers from a physical disorder; or  (iii) is undergoing medical treatment;  (c) the nature and extent of the information before the court;  (d) the issues arising in the proceedings including (but not limited to) any  concerns arising in relation to abuse;  (e) whether a matter is contentious;  (f) the age, maturity and understanding of the party or witness;  (g) the social and cultural background and ethnic origins of the party or witness;  (h) the domestic circumstances and religious beliefs of the party or witness;  (i) any questions which the court is putting or causing to be put to a witness in  accordance with section 31G(6) of the 1984 Act<a href="#_ftn7" id="_ftnref7">[7]</a>;  (j) any characteristic of the party or witness which is relevant to the participation  direction which may be made;  (k) whether any measure is available to the court;  (l) the costs of any available measure; and  (m) any other matter set out in Practice Direction 3AA”.  (7) The court may make such directions for the measures specified in Rule 3A.8. In addition, the court may use its general case management powers as it considers appropriate to facilitate the party’s participation (para 4.2 of PD 3AA).  (8) The measures set out in Rule 3A.8 “are those which –  (a) prevent a party or witness from seeing another party or witness;  (b) allow a party or witness to participate in hearings and give evidence by live link;  (c) provide for a party or witness to use a device to help communicate;  (d) provide for a party or witness to participate in proceedings with the assistance of an intermediary;  (e) provide for a party or witness to be questioned in court with the assistance of an intermediary; or  (f) do anything else which is set out in Practice Direction 3AA”.  (9) The court should set out its reasons on the court order for making, varying, revoking or refusing any directions in FPR Part 3A (Rule 3A.9).  Mrs Justice Theis DBE also referred to the decision of Baker LJ in A v A Local Authority and others [2022] EWCA Civ 8, specifically paragraphs 41-42. In particular, Baker LJ states when discussing Part 3A; “All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly.” Importantly, Baker LJ goes on to say that “It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust.”  Submissions  In relation to ground 1, it was submitted on behalf of the appellant that the serious nature of the allegations in this case encompass the meaning of domestic abuse. Thus, under FPR rule 3A.2A the mother should have been identified as someone who was a vulnerable party, and the court was under a duty to consider if any participatory directions were required when she gave evidence. It was submitted that the court wholly failed in this duty and in the judge’s conclusions about the mother’s evidence, the judge noted the mother’s inconsistencies. It was submitted on the mother's behalf that no account was taken of her vulnerabilities as a complainant of domestic abuse, and what potential impact this may have had on her evidence. Further, the failure to comply with the mandatory requirements of FPR Rule 3A was a serious procedural error, resulting in the hearing being unfair and unjust. The submissions in relation to ground 2 covered similar legal points. It was submitted that the judge was wrong to replay videos without having a ground rules hearing to consider any potential impact this may have on the mother as a vulnerable witness and any participation directions that should be made.  The father, who appeared in person, provided a written skeleton argument and oral submissions. He submitted that there would simply be no difference in the final outcome and the function of a remote hearing would have assisted the mother. At no point did the mother ask for her camera to be switched off, she had breaks during her evidence and the videos were required to be played as she disputed facts.  Decision and Conclusion  Whilst considering her decision, Mrs Justice Theis DBE reiterated historic appeals in relation to compliance with FPR Part 3 and PD3AA at [34]. The recurrent grounds resulting in a successful appeal were on the “basis of procedural irregularity where the court had failed to comply with its duty to consider the vulnerability of a party or a witness, and to then, in turn, hold a ground rules hearing and consider what, if any, participation directions should be made.”<a href="#_ftn8" id="_ftnref8">[8]</a> Mrs Justice Theis DBE also drew attention to the fact that neither party’s legal representative raised this as an issue and these requirements “should now be embedded in the legal landscape of these cases to ensure the important safeguards they provide are kept under active review.”<a href="#_ftn9" id="_ftnref9">[9]</a>  The appeal was allowed on grounds 1 and 2 and the detailed reasons are set out at [37]. As the appeal was successful on these grounds, it was deemed not necessary to consider the last ground. The reasons are in summary;  <ol type="a"> <li>No ground rules hearing took place nor was it considered;</li>  <li>This lack of consideration, it left a gap in the safeguards for a vulnerable witness;</li>  <li>At no point did the court consider or address any participation directions for a vulnerable witness, whether needed or not;</li>  <li>Allegations involved intimate details of the parties’ relationship;</li>  <li>No consideration was given to the video evidence; and</li>  <li>The totality of failing to consider Part 3A and the lack of consideration of the mother’s vulnerability resulted in the hearing being unfair.</li> </ol>  This appeal, together with the decision in Re M, provide a helpful summary of the law in relation to vulnerable witnesses for practitioners. Further, it highlights a duty, not only for the court, but also representatives to ensure that this issue is continually reviewed throughout proceedings. There have been increasingly more and more cases that invoke Practice Direction 12J, where the nature of the allegations involve witnesses that fall into the category of being ‘vulnerable’. Therefore, the judgment of Mrs Justice Knowles in Re M and the principles set out in this appeal should remain at the forefront of practitioners’ minds when involved in such cases.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://www.bailii.org/ew/cases/EWHC/Fam/2023/406.html">D v R [2023] EWHC 406 (Fam) (24 February 2023) (bailii.org)</a>  <a href="#_ftnref2" id="_ftn2">[2]</a> FPR rule 30.12 (3)  <a href="#_ftnref3" id="_ftn3">[3]</a> B v B (Residence Orders: Reason for Decision) [1997] 2 FLR 602  <a href="#_ftnref4" id="_ftn4">[4]</a> Royal Bank of Scotland v Carlyle [2015] UKSC 13  <a href="#_ftnref5" id="_ftn5">[5]</a> Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136  <a href="#_ftnref6" id="_ftn6">[6]</a> G v G (Minors: Custody Appeal) [1985] 1 WLR 647  <a id="_ftn7" href="#_ftnref7">[7]</a> Matrimonial and Family Proceedings Act 1984  <a href="#_ftnref8" id="_ftn8">[8]</a> [34]  <a href="#_ftnref9" id="_ftn9">[9]</a> [35]

The proposed changes to Panel Composition in the ET and the EAT – a valuable cost saving exercise, or an erosion of justice?

Sir Keith Lindblom, Senior President of Tribunals has in recent weeks launched a consultation paper seeking views on the proposals to potentially change the composition of ETs and the EAT, with a view to removing, or further reducing the use of lay members in all but the most complex cases. But what effect, if any, would this change have on the administration of justice?  Employment Tribunals, created in 1964 (and known as Industrial Tribunals until 1998) were initially created to decide appeals against training levy assessments imposed on employers by Industrial Training Boards. Whilst ETs still hear some appeals against administrative decisions, in most respects ETs have changed beyond all recognition in the past 59 years. However, one key component of Employment Tribunals has been its composition; indeed, the use of a panel in both the ET and EAT is of great importance to us as employment lawyers.  The use of lay members, who assist the Employment Judge in the determination of legal issues, but who also provide a lay perspective to issues (when first established the idea was that one non-legal member would have a Trade Union background and the other have a business background) has traditionally given parties the appearance of fairness and access to justice. However, the requirement for a panel of three has been reduced over the years.  Employment judges have been sitting alone on case management discussions, most pre-hearing reviews, and claims relating to unlawful deductions, unpaid holiday pay and redundancy payments for many years. Since 2012 Employment Judges have also been able to sit alone in Unfair Dismissal cases. When this was announced, it was anticipated to save around £3 million per annum in lay members fees and other associated costs. Meanwhile when the EAT was first established, a panel was required for all cases. However, since 2013 the EAT has been composed of a judge sitting alone, with a discretion to sit with a panel. This discretion is only exercised in about 15% of cases.  Now 10 years on, that composition looks set to change yet again. Within the consultation paper, Sir Keith Lindblom, Senior President of Tribunals said that the aim is to create a ‘more efficient and consistent pattern of panel composition’. This would involve reductions in panel size where that is justifiable, and potentially scrapping the system of allowing judges to sit alone for certain types of cases and not for others.  Sir Lindblom is of the view that there no inherent unfairness in a hearing before an Employment Judge sitting alone; equally he appeared to reject any suggestion that a full panel was required for parties to feel that they were getting a fair hearing. He also said that including non-legal members on the panel can affect the length of time involved or extend the time taken to make a decision or judgment.  Listing hearings on dates convenient for three members of a panel is also more difficult than where a judge can sit alone (have we not all had a hearing where a panel member has had a holiday or an operation to work around, resulting in an unavoidable further delay in a part-heard case?). One should also bear in mind the fees of panel members; currently £200 per day in the ET and £350 per day in the EAT, plus expenses.  Sir Lindblom cited the use of panels in discrimination and whistleblowing cases as being ‘too broad’ given that such cases often succeed or fail on legal points which panel members may have little knowledge in. He deemed this a ‘wasteful use of hard-pressed resources’ and perhaps many of us cannot argue with his logic. But what about the other side of the coin; what are the advantages of panel members?  Sir Lindblom acknowledged that lay members are more likely to be female (56% compared to judges at 52%), come from ethnic minorities (18%, compared to judges at 12%) and be people with disabilities (11%, compared with judges at 6%). Removing them from hearings could reduce representation of these groups in the tribunal. Equality in the Tribunal is therefore potentially affected, bearing in mind that there is also a higher proportion of people from ethnic minorities among claimants in the ET than in the workforce as a whole.  There is also a sense amongst many lawyers that panel members bring a human touch to a hearing; claimants in particular can feel that their voice is being heard by a lay person rather than a lawyer. As the consultation paper points out, a non-legal member may be better placed to determine an issue such as whether an adjustment requested by a disabled employee was reasonable, than a judge.  Whilst the promotion of diversity in the judiciary is highlighted within the consultation paper as being one of the Senior President Tribunal (SPT’s) main strategic objectives, it also points out that ‘it would not be appropriate to pursue that objective by deploying judicial office holders to hear cases in which their expertise is not required’.  When changes were made to panels for unfair dismissal hearings back in 2012, there was concern that this might be seen to erode public confidence for those seeking to bring claims. However, the consultation paper makes clear that the data shows that these concerns were unfounded. There were 49.036 unfair dismissal claims in 2012/2013, which was slightly higher than in the preceding years.  It is therefore argued that trusting the discretion of judges to identify cases where the input of non-legal members would be useful seems to be the correct approach. The SPT therefore proposes that the EAT should remain and the ETs should become, tribunals where substantive decisions are taken by a judge alone by default, with a discretion for the judge to sit with two non-legal members.  There is a further proposal by the SPT that preliminary hearings (which currently have a discretion for a judge to sit with a panel), will have the discretion removed and will always be conducted by an employment judge sitting alone. Interestingly, there is also a proposal to introduce the possibility of a two-judge panel, to deal with particularly complex cases; a system that already exists in various chambers of the First-tier Tribunal.  The sense one feels from reading the consultation paper is that whilst there are compelling arguments on both sides, the changes that we have seen in the tribunals and EAT over the past decade or so are likely to continue and that the composition of tribunals will no doubt be changed further. But would this be the right decision? If you have views on the consultation paper, responses to the same have now been extended to 27 April 2023 and can be sent to SeniorPresidentTribunalsOffice@judiciary.uk

Parklane Plowden Podcast – Expert evidence in disability related employment claims

Listen to Parklane Plowden’s latest podcast: : Expert evidence in disability related employment claims  Barrister and joint head of Parklane Plowden’s employment team Andrew Sugarman is joined by employment barrister Amy Rumble and Consultant Psychiatrist Dr Devika Colwill to discuss how best to instruct expert witnesses in disability related employment cases.  Alongside the conversation with Amy and Andrew around the legal landscape of giving expert evidence, Dr Colwill also provides insights on her specialist area of autistic spectrum condition cases.  Listen to the podcast below:

International Women’s Day

The North Eastern Circuit Women’s Forum in collaboration with Parklane Plowden Chambers is hosting an event to mark International Women’s Day.  This year International Women’s day is about embracing equity. The event will celebrate the achievement of women and raise awareness about the need to take action for gender parity.  We will be joined by Mrs Justice Foster and members of the local judiciary.

Think twice before making a pre-action admission

Pupil Barrister. <a href="https://www.parklaneplowden.co.uk/our-barristers/oliver-bailey/">Oliver Bailey</a> reviews the decision in Somoye v North West Anglia NHS Foundation Trust [2023] EWHC 191 (KB).  Facts  This case concerned a clinical negligence claim arising out of the death of Dr Oluyinka O Somoye.  In short Dr Somoye attended the Defendant’s hospital for a myomectomy on 28/02/18 and was discharged by the treating doctors on 03/03/18.  On 07/03/18 Dr Somoye returned to hospital with severe abdominal pain. She subsequently vomited faeces, collapsed, and suffered a fatal cardiac arrest.  Admission  In March 2020 the Defendant made a pre-action admission of liability primarily based upon the written expert opinion of Professor Winslet, who had been instructed by the Coroner for the inquest. The Defendant then reiterated this admission by letter a year later in April 2021.    However, at the inquest Professor Winslet changed his opinion somewhat and concluded that different treatment would not have prevented death.  The Defendant then made an application to withdraw the pre-action admission in respect of causation, not in respect of breach of duty.  The Defendant then relied upon Professor Winslet’s updated opinion and also expert evidence from a consultant in intensive care and a cardiologist.     The Law  Under CPR 14.1A(4) a party who makes a pre-action admission may apply to withdraw it.  Practice Direction 14 paragraph 7.2 states:  “In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –  <ol type="a"> <li>The grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;</li> </ol>  <ul> <li>The conduct of the parties, including any conduct which led the party making the admission to do so;</li> </ul>  <ul> <li>The prejudice that may be caused to any person if the admission is withdrawn;</li> </ul>  <ul> <li>The prejudice that may be caused to any person if the application is refused.</li> </ul>  <ul> <li>The stage in the proceedings at which the application to withdraw is made, in particular in relation to the date of a fixed period for trial;</li> </ul>  <ul> <li>The prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and</li> </ul>  <ul> <li>The interests of the administration of justice.”</li> </ul>  Application  Master Sullivan thought that the factors listed in PD 14 are not to be considered in any hierarchy, but ought to be applied to achieve the overriding objective.  The factors were then considered in turn and can be summarised as follows:  <ul> <li>New evidence. The oral evidence given by Professor Winslet was not new but rather a change of opinion. In 2018 he opined aspiration was the cause of death however, he also raised the alternative view. Therefore, the issue was identified from 2018, pre-admission. Master Sullivan noted that the new evidence now obtained by the defendant was evidence in support of the application but not new evidence for the purpose of the test.</li> </ul>  <ul> <li>Conduct. The onus was on the defendant to fully investigate matters prior to making the admission. Especially when the expert had raised an alternative view which could support a defence. The second admission was made to spare a full inquest and to reduce costs. Whilst this is something to be encouraged, we must look at the impact in the round. The Trust will almost always be represented at inquest however a family may not be where an admission has been made and costs may not be recoverable. The claimant then potentially loses an opportunity to fully investigate at inquest. In this case it meant the clinicians were not called to give factual evidence. </li> </ul>  <ul> <li>Prejudice. The prejudice on the claimant who has relied upon this admission and limited their enquiries and investigations as a result was significant. An opportunity to obtain factual evidence had been lost because of the 3 years since the admission. In addition, the defendant’s prejudice in being refused permission to withdraw was mitigated as they were still able to challenge the extent of their losses.</li> </ul>  <ul> <li>Stage in the proceedings. Master Sullivan afforded little weight to the application being at the very start of the civil proceedings. Greater emphasis was placed on the application coming some 5 years post incident, 3 years post admission and after an inquest.</li> </ul>  <ul> <li>Prospects of success. As a result of the two expert reports obtained, the defendant had good prospects of success in respect of 07/03/18. The claimant had not produced any evidence to refute the same. However, the admission was not date specific. The defendant did not provide any evidence dealing with the earlier substandard treatment on 03/03/18.</li> </ul>  <ul> <li>Interests of Justice. The claimant argued that allowing the admission to be withdrawn would result in claimant’s being unable to rely on admissions pre-inquest in case it was later withdrawn. As such claimants would be incurring expenses to fully investigate matters even when an admission has been made. The defendant argued that to allow a trial on an artificial basis, where evidence is against the admission would not be in the interests of justice. Master Sullivan noted this factor was very much connected with conduct (b).</li> </ul>  Decision  The fact the defendant now had a realistic defence was a strong factor in favour of granting permission to withdraw. Master Sullivan felt however that this was outweighed by the conduct and prejudice of the parties on this set of facts. Permission to withdraw the admission was therefore refused.  Conclusions  This case serves as a useful reminder to those considering making a pre-action admission of liability. Generally, pre-action admissions are to be encouraged. They enable parties to narrow down the issues and ensure the case progresses in a proportionate and reasonable manner. However, early admissions in particular will shape the trajectory of a case and inform either parties decision making. Parties are therefore well advised to think long and hard about the evidence and how it may develop before making pre-action admissions.  A party wishing to withdraw from an admission should also act promptly and in a transparent manner to afford themselves the best chance of success.

Employment Seminar

Our specialist employment team are hosting this seminar which focuses on disability claims at the Leeds, City Hilton Hotel on Thursday 23rd March 2023.  Menopause related claims in the workplace are on the rise and Sophie Firth will discuss this topic and the difficulties faced.  More recently, Sophie defended Experian Limited against menopause-related Employment Tribunal claims. This article recently received a lot of attention, showing the growing interest in this topic.  You can read the full article and judgement <a href="https://www.parklaneplowden.co.uk/sophie-firth-successfully-defends-menopause-related-employment-tribunal-claims/">here</a>.  You can also view the line-up of speakers and topics for the Employment Grandstand Event <a href="https://www.parklaneplowden.co.uk/employment-grandstand-seminar/">here</a>.

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Welcome back Lucy Bairstow

23 March 2023 | Fact-finding hearings: Proportionality & Pleadings

Junior Chancery and Commercial Coffee Morning

Parklane Plowden sponsor the Northern Acquired Brain Injury Forum Conference – 28th June 2023

D v R [2023]: An important reminder of the application of Part 3A and Practice Direction 3AA

The proposed changes to Panel Composition in the ET and the EAT – a valuable cost saving exercise, or an erosion of justice?

Parklane Plowden Podcast – Expert evidence in disability related employment claims

International Women’s Day

Think twice before making a pre-action admission

Employment Seminar

9th September 2025 | Employment Law with Lunch

Parklane Plowden Podcast – A closer look at burial disputes

Trial Success for Howard Elgot and Megan Crowther: HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

2nd October 2025 | Expert Evidence in Focus – In Collaboration with Sarah Vella, Evidence Matters

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Welcome back Lucy Bairstow

23 March 2023 | Fact-finding hearings: Proportionality &#038; Pleadings

Junior Chancery and Commercial Coffee Morning

Parklane Plowden sponsor the Northern Acquired Brain Injury Forum Conference &#8211; 28th June 2023

D v R [2023]: An important reminder of the application of Part 3A and Practice Direction 3AA

The proposed changes to Panel Composition in the ET and the EAT – a valuable cost saving exercise, or an erosion of justice?

Parklane Plowden Podcast – Expert evidence in disability related employment claims

International Women’s Day

Think twice before making a pre-action admission

Employment Seminar

Latest News

9th September 2025 | Employment Law with Lunch

Parklane Plowden Podcast – A closer look at burial disputes

Trial Success for Howard Elgot and Megan Crowther: HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

2nd October 2025 | Expert Evidence in Focus – In Collaboration with Sarah Vella, Evidence Matters

23 March 2023 | Fact-finding hearings: Proportionality & Pleadings

Parklane Plowden sponsor the Northern Acquired Brain Injury Forum Conference – 28th June 2023