Victoria Steele, Author at Parklane Plowden

Guardianship Orders: A Cut out and Keep Guide based on One I Made Earlier

Introduction  The Guardianship (Missing Persons) Act 2017 (“the Act”) came into force three and half years ago on 31 July 2019.  Informally known as ‘Claudia’s Law’ after Claudia Lawrence who disappeared in 2009, the purpose of the Act is to empower the court to appoint a guardian to deal with the property and financial affairs of people who have gone missing.   Despite the acknowledged need for such an Act, and the length of time for which the remedy has now been available, there are no reported cases of a court appointing a guardian.  I would like to be able to say “not until now”, but the nature of the hearing I had in December 2022, during which a DJ in the Business and Property Courts in Leeds granted my client a guardianship order did not lend itself to a reported judgment.  So I have taken it upon myself to provide a short overview of our application, followed by a brief “cut out and keep” guide to guardianship orders, based upon “one [a DJ in the Leeds BPC] made earlier” with the intention that you can keep this article in the magical cloud/internet storage/e-mail server and pull it out if you’re faced with a situation where you need to consider applying for such an order.  The Order made in Leeds  The background to my case was that the applicant had been contacted by professionals searching for relatives of the owner of a derelict property which was causing problems for its neighbours.  The identity of the owner was known, but he had not been seen or heard of for many years.  The applicant for the guardianship order was the brother of the owner.  Enquiries carried out by the applicant revealed a last known address for the missing person in 2017/18, from where it appears that the missing person was admitted to hospital, never to be seen again save for an unconfirmed sighting in the hospital around this time.  All other enquiries drew a blank, but equally no death certificate could be found.  Given that only four years had elapsed from when the missing person had last been seen, and there was no evidence to show that it was thought that the missing person had died, it was not open to the applicant to apply for a declaration of presumed death under the Presumption of Death Act 2013, so instead we applied for a guardianship order so that the applicant (and his wife) could deal with the derelict property.  One of the significant difficulties faced by the applicant was that he had not personally been in touch with his brother for over 15 years, and the missing person was a gentleman with few friends, no regular job, and no other family.  It was therefore necessary to track down and then obtain witness statements from the missing person’s friends to try and piece together a picture of the missing person’s life in 2017/18 so that it could be shown that the missing person was indeed ‘absent from his usual place of residence and usual day to day activities’ as required by s.1 of the Act.  There is no assistance as to the necessary time period for “usual” within the Act, but as the applicant could not find any trace of the missing person after 2018, we had to focus upon his ‘usual’ activities at that time.  CPR 57.27 makes it clear that the first hearing of an application for a guardianship order is usually a directions hearing.  In our case there had been a problem with the advertisement which needs to be placed in a ‘public news media’ no later than 14 days after notification of the date of the first hearing, and therefore an order was sought (and granted) to extend the time to advertise the claim.  However, even given the short period of advertisement, the remote hearing was attended by a member of the public; an academic with an interest in the derelict property due to its historical significance as a synagogue dating back to 1892.  Directions were given as to the filing of further evidence, and the final hearing was listed in person with the proposed guardians (the applicant and his wife) ordered to attend.  The order was subsequently granted with the court expressing concern that without the order sought the property was, and would remain,  uninsured, and the authority given to the guardians included permission to sell the property and to pay the legal costs of the application from the missing person’s estate.  Cut Out and Keep  The law relating to application for a guardianship order (“an order”) is set out within the Act and guidance for guardians and persons making applications under the Act is provided by the Guardianship (Missing Persons) Act 2017 Code of Practice (“the Code”), the most recent edition of which is dated June 2019.  The relevant section of the CPR is CPR 57.  Jurisdiction and Standing  Under s.2 of the Act, the court only has jurisdiction to hear and determine an application for an order if either:  <ul> <li>the missing person was</li>  <li>domiciled in England and Wales on the <a>day before (s)he was first known to be missing, or</a></li> </ul>  <ul> <li>had been habitually resident in England and Wales throughout the period of one year ending on the day before (s)he was first known to be missing,</li> </ul>  Or  <ul> <li>the application is made by the missing person’s spouse or civil partner and the applicant is:</li>  <li>domiciled in England and Wales on the day on which the application is made, or</li>  <li>has been habitually resident in England and Wales throughout the period of one year ending on the day on which the application is made.</li> </ul>  Pursuant to s.19 of the Act, any applicant for an order must have a sufficient interest in the missing person’s property or financial affairs.  The persons with automatic sufficient interest include the missing person’s spouse/civil partner, parent, child, or sibling.  Under s.20 of the Act any application for an order must be advertised in accordance with the rules of court and s.20(3) provides that the court must refuse to hear an application if it knows that the advertising requirement has not been met.  CPR 57.29 provides that the advert must be in the prescribed form, and must be advertised ‘within 14 days of notification of the date of the first hearing’.   In the event that the advert is late, relief from sanctions can be obtained via CPR 3.1(2)(a) – power of the court to extend or shorten the time for compliance with any rule or practice direction.  Criteria to be Satisfied to Make an Order  <a>Under s.3 of the Act, the court can make an order if satisfied that:</a>  ‘Missing’  Under s.1 of the Act, a person is “missing” if he is absent from his usual place of residence, is absent from his usual day to day activities, and his whereabouts are either completely unknown or are not known with sufficient precision to enable that person to be contacted for the purposes of decisions relating to his property or financial affairs.  Paragraph 4.4 of the code explains that the typical scenario for a case under the Act is “where a person has simply disappeared without explanation”.   Best Interests to make an Order  s.18 of the Act provides that when determining what is in the missing person’s best interests, the court must consider all the relevant circumstances of which the court is aware, and must consider, so far as is reasonably ascertainable—  (a) any relevant wishes and feelings expressed by the missing person at any time,  (b) the beliefs and values that would be likely to influence the missing person, and  (c) any other factors that the missing person would be likely to consider.  The court must take into account the views of any persons of whom the court is aware with a relevant interest in relation to the missing person's property or financial affairs, where it is reasonably practicable and appropriate to do so, and must consider the consequences of taking a proposed action.  However, the court is not required to decide any matter by reference to the decision the missing person is likely to have taken, or to consider any question as to whether or when the missing person might cease to be missing.  Appointment of a Guardian  The criteria of eligibility to be appointed a guardian is set out at s.4 of the Act.   Under s.16 of the Act, the court may appoint two or more guardians.   The Terms of an Order  Pursuant to s.5 of the Act an order must appoint a guardian in relation to all of the missing person’s property and financial affairs or such property or affairs as is specified or described in the order.   Under s.6 of the Act an order may impose duties upon a guardian and/or include conditions and restrictions.  Under s.10 the court may give directions to the guardian about how to act and/or the scope of the guardian’s power.  Under s.6(4), a guardian may be given the power to sell property.  Under s.7 of the Act, the maximum period of an order is 4 years.  An order can be varied or revoked at any time (ss. 12 and 13).

ELA’s Keeping Connected Coffee Morning

Parklane Plowden will be hosting an ELA coffee morning, tomorrow 8:30 – 10:00.  Over the last few years, the opportunity to get together and connect has been greatly eradicated. Almost everything has moved online and most of us spend less time in a communal office. Whilst this change has been positive in helping balance work and life, it has left us with fewer opportunities to keep connected. The aim of the coffee morning it to give Employment Specialists the chance to connect in person.  Reserve your space on the <a href="https://www.elaweb.org.uk/training-and-events/1319">ELA website</a> or email <a href="mailto:charleym@elaweb.org.uk">charleym@elaweb.org.uk</a>.

Nuisance after Fearn v Tate Gallery

Background  The Neo Bankside development (“the Development”) consists of four purpose built residential towers on Holland Street, London. A stone’s throw from the south bank of the River Thames. Each has 21 floors and is designed to maximise the area of glass on each floor thereby giving the occupier a panoramic view of the city. Each tower was completed in 2013 / 2014 and subject to long leaseholds. Leases of many of the flats within the Development sell for over £1 million.   Across Holland Street and next to the Millenium Bridge is the Tate Modern gallery. In 2016 Tate Modern completed the construction of the Blavatnik Building. This is adjacent to the main building and in the form of a twisted pyramid including a 360 degree viewing gallery open to visitors. Block C of the Development (“Block C”) is the closest to the Blavatnik Building. The gap between the two is about 34 metres. The viewing gallery is at the height of floors 18 and 19 of Block C.   The Development and the Blavatnik Building are substantial developments and planning for both took a long period. There was an overlap between the applications for planning permission. At one stage there was a proposal to include angled glass and like features in the viewing gallery. However, this proposal was not pursued in amended plans. Thereafter, neither the planning consultants for Tate Modern nor the local planning authority considered in any detail the desirability of restricting viewing in the direction of the Development. Even after the Development opened, the plans for the Blavatnik Building could have been amendment, but were not.  The Court considered the relationship in space between the Development and the Blavatnik Building in detail, but it is not easy to see the problem without the benefit of Google Maps. A visitor to the viewing gallery would want to look downwards to the North to view the river. Such a visitor would also want to view the Houses of Parliament and the London Eye to the South West but these are some distance away. The visitor would probably be content to view these distant landmarks without looking down. In principle, the viewing gallery could have been designed to prevent viewing downwards in the South West direction (or indeed Southwards generally). Putting the matter another way, there is not much to look at immediately to the South of Tate Modern.   Once opened, the viewing gallery became very popular with visitors of Tate Modern. At any one time the viewing gallery could accommodate up to 300 visitors. Such visitors watched, filmed and photographed residents of Block C on a virtually constant basis. Some even used binoculars. For the affected residents of Block C, the intrusion was relentless and akin to being in a zoo. Tate Modern did put up signs in the viewing gallery suggesting that the privacy of the residents should be respected. These were largely ignored.  The residents of Block C most affected (ranging from floors 13 to 21) commenced proceedings to require Tate Modern to cordon off part of the viewing gallery so as to prevent the viewing referred to above.  Initial observations  At first sight, one might be forgiven for thinking that the issues of the claim would be limited to the required remedy and that liability would not be a serious issue. The claimants were leaseholders of flats within Block C (with exclusive possession) and have a sufficient proprietary interest to bring a claim in private nuisance (see Hunter v Canary Wharf Ltd [1997] AC 655). The types of activity giving rise to private nuisance are not closed. In principle, private nuisance could apply to interference with television signals (see Hunter v Canary Wharf). It could apply to damage caused by Japanese knotweed (see Williams v Network Rail [2019] QB 601). Private nuisance ought to apply to viewing in an appropriately extreme case.  The standard test or methodology involves asking three questions being as follows:  1)  Is the defendant’s use of its land “common or ordinary” in the locality? Some cases use “or” and some “and” without any discussion of the differences. If the defendant’s use of its land is “common or ordinary” then it may be able to avoid liability by relying upon the defence of “reasonable user” or “give and take” that is to say user necessary for the ordinary or common use of the land (see speech of Lord Goff in Cambridge Water Co. v Eastern Counties Leather PLC [1994] 2 AC 264 at page 299E).   2)  Is the claimants’ use of their land “common or ordinary” in the locality?  3)  Is there a substantial interference with the use of the claimants’ land?  The creation and use of the viewing gallery is now unlawful and might be desirable from a commercial perspective, but it is hardly “common or ordinary” in this or any other locality. It is unique and this is its selling point. The interference is substantial because it deprives the residents of flats from being able to use them in the usual way that people do. For some residents, it made their life a misery. Insofar as this might be relevant, Tate Modern had every opportunity to design the Blavatnik Building so as to mitigate the effects on the residents of the Development, but did not to do so.   However, this is not the way in which the case proceeded until the Supreme Court decision on 1st February 2023.  The decision of Mann J at first instance ([2019] Ch 369)  The claim was brought on two bases. The first was that Tate Modern was undertaking “functions of a public nature” and thereby bound to act fairly under section 6(3)(b) of the Human Rights Act 1998. It was claimed that it had not done so by facilitating viewing of the nature described. The second was that the acts constituted private nuisance and that the Court was entitled to take into account the right to privacy under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) in order to extend if necessary the remit of private nuisance.  The Judge found that Tate Modern was not undertaking “functions of a public nature” even though it was publicly funded. This would only apply if the functions were of the nature normally undertaken by a Government agency.  As to private nuisance, the Judge considered that the requirement for the protection of privacy under the Convention enabled him to extend the tort of private nuisance (if necessary) so as to include viewing which interfered with such privacy. However, the Judge concluded that there had been no substantial interference with the claimants’ reasonable user of the flats for the following reasons:  1)  The way in which the viewing gallery had been operated was not unlawful or “unreasonable”.  2)  The claimants had created a “self-induced sensitivity” to viewing by deciding to live in flats which had been constructed so as to maximise glass frontage.  3)  The claimants could take steps to deal with the problem whether by installing tinted glass or curtains other otherwise.  Accordingly, the claim was dismissed.  I found the decision at the time troubling.   1)  As to the first point, the reference to user which was not “unreasonable” seemed to be misplaced. Mann J did not conclude that Tate Modern’s user was “common or ordinary”. Accordingly, “reasonable user” or “give and take” should not apply.  2)  As to the second point, this is normally an argument which judges hate. The amount of glass used in the construction of the towers enabled the residents of to enjoy their flats to their best advantage. Nothing more. Some years ago, I acted for an offal factory which had increased its production intensity. Nearby residents brought claims against it for private nuisance relating to noxious smells and noise. One of the arguments which the offal factory used was that these residents had created or worsened the problem by installing patio doors in their homes which they liked to keep open during the trading hours of the offal factory. As might be expected, this argument went down like a lead balloon. In my experience, similar arguments normally do. As a general rule, judges are the sort of people who like to enjoy their homes to their best advantage and empathize with a claimant who wishes to do so. There is also an element of blaming the victim, which is unattractive.  3)  This seems to be an issue as to remedy rather than the existence of a cause of action.  The decision of the Court of Appeal ([2020] EWCA Civ 104)  Before the Court of Appeal, the case took a different direction.  All three judges disagreed with the approach taken by Mann J as to substantial interference. None accepted that the claimants had created a “self-induced sensitivity”. The claimants were just enjoying their flats as people do.  However, all three judges concluded that the weight of judicial authority was to the effect that “mere overlooking” from one property to another was not capable of giving rise to a cause of action in private nuisance. Article 8 of the Convention could not assist in extending the ambit of private nuisance because concepts of privacy under the Convention were distinct from property rights protected under the law of private nuisance. Privacy is attached to the person. Private nuisance is a property tort linked inextricably with rights to enjoy property.  I found the decision at the time troubling because the essence of the tort of private nuisance is that it evolves with time, technology and the innate ability of the species to interfere with the rights of neighbours. It clearly applies to vibrations on one property which affect the neighbouring property. This type of vibration would not have been dreamt of when the tort originated. Neither would residential tower blocks lined with glass. In any event, the viewing by visitors was not “mere overlooking” in the sense that it arises merely because one property is higher than another. It was deliberate and intensive viewing for pleasure or amusement. Tate Modern had effectively encouraged its visitors to do so.  The decision of the Supreme Court  All five judges concluded that the tort of private nuisance was wide enough to enable a claim relating to viewing provided that it was sufficiently intensive. Insofar as this was relevant, the actions of the visitors of Tate Modern amounted to far more than the facilitation or encouragement of “mere viewing”. The fact that there had been no reported case to date relating to such a claim was not important. Article 8 of the Convention has no part to play in assessing the scope of the tort or private nuisance or any similar property tort.   The majority of the Supreme Court (Lords Leggatt, Reed and Lloyd-Jones) accepted the criticisms of the Court of Appeal with regard to the decision of Mann J and concluded what there had been substantial interference with the claimants’ “common or ordinary” user of their flats. While there was a balance between the conflicting right of neighbouring owners to be maintained (see Sedleigh-Denflield v O’Callaghan [1940] AC 880) the balancing exercise required the Court to intervene and relief would be granted. Lord Leggatt, who gave the speech of the majority, was scathing about the judgments below and considered that they may have been motivated by a desire to prefer the rights of the many visitors to Tate Modern at the expense of a few rich residents of the flats. In this regard, Lord Leggatt may be inferring more than is obvious from the judgments themselves. It is an unfair criticism of the Court of Appeal as all three judges would have found for the claimants but for the fundamental issue as to the nature of the actions giving rise to a private nuisance claim.    The speech of the minority (Lords Sales and Kitchin) is not easy to follow. They do not appear to have accepted the argument that the claimants created “a self-induced sensitivity”. However, they refused to interfere with the judgment of Mann J on the basis that private nuisance involves at its very essence the concept of “reasonable user” or “give and take”. For the minority, these concepts were not limited to actions required for “common or ordinary” user. The minority considered that residents of the flats were in a position to take steps to mitigate the problem and they should do so rather than Tate Modern.  The analysis of the minority is perplexing for a number of reasons including the following:  1)    The natural reading of the speech of Lord Goff in Cambridge Water limits “reasonable user” or “give and take” to actions required for “common or ordinary” user. No judge took the view that there was “common or ordinary” user of Tate Modern’s land.  2)  Extending the defence of “reasonable user” or “give and take” to situations where the user is not “common or ordinary” creates uncertainty and changes the whole nature of the liability. A person who constructs a property which is not “common or ordinary” in the locality (or commences a use which is not “common or ordinary” from an existing building) ought to assess and mitigate the consequences for his neighbours of such use. He is best placed to do so and mitigation can be filtered into the cost. One might be forgiven for thinking that these steps would be taken in conjunction with (or at the direction of) the planning authorities. On the facts, Tate Modern had been given every opportunity to construct the Blavatnik Building in a way which mitigated the obvious potential damage to the residents of Block C caused by hundreds of visitors gawping at them. It had taken none of these opportunities and had made no proposals to restrict the usage of the viewing gallery thereafter.  The law after the judgment  In a case with just two issues, it is surprising to find such fundamental difference of approach by the judiciary. As to the two issues, the nine judges considering the same decided as follows:  1)  Nuisance applies to viewing (6 to 3).  2)  There was substantial interference (6 to 3).  However, there were only three judges who found both. Fortunately, they were all in the Supreme Court.  The following can be said in the light of the judgment of the Supreme Court:  1)  The boundaries of the law of private nuisance are not closed. In appropriate circumstances, viewing can amount to private nuisance.  2)  Article 8 of the Convention is of no assistance in determining the ambit of private nuisance or any other property tort.  3)  Reliance upon “self-induced sensitivity” arguments as regards residential properties is likely to be very difficult.  4)  The standard test for substantial interference is to be applied that is to say the defence of “reasonable user” or “give and take” only apply to actions required for the “common and ordinary” user of the claimant’s land.  Sean Kelly  Parklane Plowden Chambers  22nd February 2023

EMPLOYMENT | ‘LAW WITH LUNCH’ WEBINAR SERIES | 27 FEBRUARY 2023

Barrister and employment specialists, Nicola Twine and Sophie Watson will be discussing:  ‘Flexible Working’: Nicola and Sophie will explore the Government’s response to the flexible working consultation and the key changes the new bill would introduce.   Please note, places on this webinar are FREE and spaces will fill up fast. If you require any further information, please email events@parklaneplowden.co.uk

Seminar: Public Law Update, discussing interesting authorities in the last 12 months

Join us on the 22 February for the next instalment of our PLP Family, Public Law group seminars.   Louise McCallum and Iain Hutchinson will be presenting a 'Public Law Update, discussing interesting authorities in the last 12 months.'  Wine, nibbles and other refreshments will be available on the evening.   This event is in person only at Parklane Plowden Chambers, Leeds.   Please feel free to RSVP colleagues as space is limited.  Please email <a href="https://lex.parklaneplowden.co.uk/iframeCoreFiles/tinyMce/events@parklaneplowden.co.uk">events@parklaneplowden.co.uk</a> for any further information.

National Apprenticeship Week

It’s national apprenticeship week, and at Parklane Plowden we pride ourselves on our successful apprenticeship scheme. Over the last eight years we have taken on ten apprentices and six of those are still working within the company, four of them having worked their way up to clerking positions.  Two of our current staff who started out as apprentices would like to share their journey and the skills they have gained along the way.  <a href="https://www.parklaneplowden.co.uk/our-staff/millie-eccles/">Millie Eccles, Office Assistant</a>: I began my apprenticeship in October 2021, after completing my A Levels. I knew university wasn’t the right path for me as I wanted to gain experience while working full time.  Beginning my apprenticeship Parklane Plowden has enabled me to gain valuable knowledge and experiences of the workplace. I have also made valuable connections and improved the confidence I have in myself and my abilities.  Completing my apprenticeship at Parklane Plowden has allowed me to expand my knowledge of the law, as well as develop the skills I need to move forward in my career. It enables me to balance my time studying and working full-time, as well as earning a salary and gaining valuable experience. It has also allowed me to start my career earlier than going to university.  <a href="https://www.parklaneplowden.co.uk/clerks/emma-frazer/">Emma Frazer, Practice Manager – Civil Employment and Inquests</a>: After completing my first year of sixth form, I knew I wanted to do something different instead of continuing into my second year. I considered what my next steps could be and searched for an apprenticeship in the legal industry, which was an area of real interest for me. I managed to find an apprentice role at Parklane Plowden Chambers as an administrative apprentice.  Shortly after applying for this role, I researched barristers’ chambers, clerks, and the opportunities of career progression. Once I was offered the role, I did more research into working in a busy clerk’s room and how I could prepare.   The apprenticeship at Parklane Plowden gave me the opportunity that sixth form and university could not. At 17 I got to see the inner workings of chambers, the meetings, the court appointments, the fee negotiating, all whilst concentrating on my role as an administrator. I knew my role was an integral part of the business and no two days were the same for me.  After completing my 1-year apprenticeship I was quickly promoted to Junior Civil clerk, and truthfully, I had been doing some clerking to help the team during my apprenticeship, which meant I was able to hit the ground running with my clerking career.  Now almost 8 years later, I am the practice manager for the civil and employment team, and I have not looked back.  Parklane Plowden Chambers are committed giving the best start to all of our apprentices and helping them every step of the way.

Sophie Firth successfully defends menopause-related employment tribunal claims

Miss A Irwin v Experian Limited 2601913/2020  Sophie Firth has successfully defended Experian Limited against Miss Irwin’s menopause-related Employment Tribunal claims following a 7-day liability hearing. Sophie was instructed by Paul Sands and Demi Fawzi-Perrin of Eversheds Sutherland.  In early 2018, Miss Irwin started to experience (peri)menopausal symptoms. She was held by a Tribunal at a preliminary hearing to be disabled by virtue of those symptoms.  In mid-2018, concerns arose about Miss Irwin’s performance and she was subsequently placed on a performance management plan. In September 2019, she went off sick with stress and returned to work for a short period before resigning in January 2020 following an unsuccessful grievance.  Miss Irwin brought claims of constructive unfair dismissal, disability discrimination, sex/age/disability harassment and victimisation. The Tribunal unanimously dismissed all those claims.  Whilst Experian’s managers knew Miss Irwin was (peri)menopausal, they did not have actual or constructive knowledge that those symptoms rendered her disabled until she submitted her grievance in October 2019.  In any event, the Tribunal found that Experian’s use of the performance management process was justified, it handled Miss Irwin’s return to work carefully, investigated her grievance thoroughly and decided it fairly.  The judgment is available here: <a href="https://assets.publishing.service.gov.uk/media/63e3ad0c8fa8f50e86ff1b08/Miss_Irwin_v_Experian_Limited_2601913.2020.pdf">https://assets.publishing.service.gov.uk/media/63e3ad0c8fa8f50e86ff1b08/Miss_Irwin_v_Experian_Limited_2601913.2020.pdf</a>  Sophie will be speaking on the topic of Menopause in the Workplace at Parklane Plowden’s upcoming Employment Grandstand Seminar: <a href="https://www.parklaneplowden.co.uk/employment-grandstand-seminar/">https://www.parklaneplowden.co.uk/employment-grandstand-seminar/</a>

Government Legal Department Attorney General’s Panel

Parklane Plowden are pleased to announce that five of our members have been appointed / re-appointed to the Attorney General's Civil Panel Counsel.     Robert Dunn and Amy Rumble have been appointed as Panel C counsel from 01 March 2023 for a 5-year tenure.  Dominic Bayne, Andrew Webster, and Tim Wilkinson have been re-appointed as Panel A counsel for another 5 years.  The government relies on the Panels for advice and representation and seeks candidates of the highest quality. Competition for places is fierce.  We’d like to congratulate our members above on their appointment.

QOCS Rules To Be Shaken Up From April 2023

April 2023 will see significant changes to CPR 44.14.  These changes will allow defendants to enforce costs orders made in their favour against costs orders made in favour of claimants.  Defendants will also be able to enforce costs orders up to the aggregate amount in money terms of any settlement, including cases concluding by way of acceptance of Part 36 offers and Tomlin Orders.  The effect of the new rule will be to reverse the decisions in Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654; [2018] 1 WLR 6137 (which precluded enforcement in cases where settlement had been agreed, rather than the court ordering an award of damages) and Ho v Adelekun [2021] UKSC 43; [2021] 1 WLR 5132 (which precluded the offset of costs against costs).  The new rule will apply to cases issued on or after 6th April 2023.  The Current Rule  CPR 44.14 currently reads as follows:  Effect of qualified one-way costs shifting  44.14  (1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.  (2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.  (3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.  The Amendment  The amendment, by virtue of The Civil Procedure (Amendment) Rules 2023, reads as follows:  <h2>Amendment of Part 44</h2>  24.  In rule 44.14—  (a)in paragraph (1), for “damages” substitute “, or agreements to pay or settle a claim for, damages, costs”;  (b)after paragraph (1), insert—  “(2) For the purposes of this Section, orders for costs includes orders for costs deemed to have been made (either against the claimant or in favour of the claimant) as set out in rule 44.9.”;  (c)renumber what was paragraph (2) as paragraph (3);  (d)after what will now be paragraph (3), insert—  “(4) Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.”; and  (e)renumber what was paragraph (3) as paragraph (5).  The New Rule  The amended rule, by virtue of The Civil Procedure (Amendment) Rules 2023, will read as follows (amendments in bold):  Effect of qualified one-way costs shifting  44.14  (1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for <s>damages</s> or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.  (2) For the purposes of this Section, orders for costs include orders for costs deemed to have been made (either against the claimant of in favour of the claimant) as set out in rule 44.9.  (3) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.  (4) Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.  (5) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.  Practical Points  <ol type="1"> <li>Defendant Part 36 offers are  likely to have far more bite than they did previously.</li> </ol>  <ul> <li>Defendants will now effectively be able to enforce costs orders up to the aggregate amount of damages and costs awarded to a claimant.</li> </ul>  <ul> <li>Claimants, and their lawyers (who will now have more at stake themselves than was previously the case), are going to have to think very carefully before rejecting offers.</li> </ul>  <ul> <li>Claimants and their lawyers will have to think carefully before making or opposing interim applications, as adverse costs orders are now more likely to be enforceable.</li> </ul>  <ul> <li>There may be a greater need for ATE protection and claimants will need to be advised accordingly.</li> </ul>  <ul> <li>There may be a flurry of cases issued between now and 6th April as claimants seek to avoid being caught by the new rule.</li> </ul>  <ul> <li>There will likely be satellite litigation. There always is.</li> </ul>  Should you wish to discuss the above, please do not hesitate to contact me in chambers.

REPLAY: Inquest case law update, 07 February 2023

<iframe width="560" height="315" src="https://www.youtube.com/embed/j4ASiBKcA2c" 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.  Following our recent Inquests Grandstand Event, <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/">Megan Crowther</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/">Sophie Watson</a> give an update summarising the key Inquests cases from the last year.  Click the video to watch the webinar recording.

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