Victoria Steele, Author at Parklane Plowden

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Substantial Injustice and Fundamental Dishonesty: Will courts know it when they see it?

Kirsty Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB) - <a href="https://www.bailii.org/ew/cases/EWHC/KB/2024/806.pdf">https://www.bailii.org/ew/cases/EWHC/KB/2024/806.pdf</a>  Introduction  <ul> <li>In this case, the claimant brought a claim for injuries and losses she suffered after falling from the defendant’s pier in July 2018. Liability was agreed at 2/3 in the claimant’s favour. The trial on quantum and fundamental dishonesty lasted 11 days. The judgment of Ritchie J was handed down on 10 April 2024.</li> </ul>  <ul> <li>Late evidence concerning substantial injustice was admitted near the end of the trial.</li> </ul>  <ul> <li>The claimant’s schedule was £2,352,261 and the defendant’s counter schedule was between £259,174 and £367,857.  The Judge assessed quantum in the net sum of £596,704.</li> </ul>  <ul> <li>The claimant was found to be fundamentally dishonest and her claim was dismissed under s57 of the Criminal Justice & Courts Act 2015. </li> </ul>  <ul> <li>The Judge carried out a detailed analysis of the way courts should consider the claimant’s ‘shield’ of substantial injustice under s57(2) of the Act; in this case finding that the claimant would not suffer substantial injustice if the claim was dismissed.</li> </ul>  Law  <ul> <li>S57 of the Act provides:</li> </ul>  (1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”) —  (a) the court finds that the claimant is entitled to damages in respect of the claim, but  (b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.  (2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.  (3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.  <ul> <li>Substantial injustice has been considered by the High Court before; notably:</li> </ul>  <ul> <li>In London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 where Julian Knowles J stated at [65]:</li> </ul>  ‘Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain that substantial injustice must mean more than the mere fact that the claimant will lose his damages for those heads of claim that are not tainted with dishonesty. That must be so because of s.57(3). Parliament plainly intended that sub-section to be punitive and to operate as a deterrent. It was enacted so that claimants who are tempted to dishonestly exaggerate their claims know that if they do, and they are discovered, the default position is that they will lose their entire damages. It seems to me that it would effectively neuter the effect of s.57(3) if dishonest claimants were able to retain their 'honest' damages by pleading substantial injustice on the basis of the loss of those damages per se. What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.’  <ul> <li>In Iddon v Warner [2021] His Honour Judge Sephton QC (sitting as a High Court judge) agreed with Julian Knowles J in LOCOG at [98]; both found that the claimants in their cases had not suffered substantial injustice and dismissed the claims.</li> </ul>  <ul> <li>In Woodger v Hallas [2022] PIQR P18 Julian Knowles also found that there was no proper basis for a finding of substantial injustice and dismissed the claim. He stated at [47&48]:</li> </ul>  ‘In Iddon, [103] the judge approached the question of substantial injustice by balancing on the one hand, the nature and extent Mrs Iddon’s dishonesty, and on the other the injustice to her of dismissing her whole claim, and came down in favour of dismissal on the basis that the former outweighed the latter. Mr Sasse commended this approach and commented that the judge had not undertaken any balancing exercise. Taking the same approach to this appeal, even on the assumption that there was some injustice to this Claimant (which I have found there was not), the same conclusion follows. The sustained nature of his dishonesty; the length of time for which it was sustained; and his involvement of others all make his dishonesty so serious that it would have outweighed any injustice to him.’  <ul> <li>Julian Knowles J expressed no surprise when he was told by counsel there was no case which had defined the meaning of ‘substantial injustice’, stating instead that county court judges would generally ‘know it when they see it’.</li> </ul>  The claim  <ul> <li>In Williams-HenryRitchie J summarised his assessment of the credibility of the claimant (and her mother) at [118]:</li> </ul>  ‘I have come to the conclusion that both the Claimant and her mother have been thoroughly dishonest in their presentation of the Claimant’s symptoms and disabilities and have sought to mislead clinicians, medicolegal experts and this Court about the Claimant’s health, functioning, activities of daily living and her work abilities. I have considered the subjective elements above but looking at the Claimant’s statements which I have identified as lies above and below, objectively, taking into account what a reasonable member of the public would consider to be honest, knowing all of the relevant facts, I have come to the conclusion that the Claimant and her mother have been objectively dishonest. I will set out the law in relation to findings of dishonesty below.’  <ul> <li>He described the claimant’s injuries in these terms at [158]:</li> </ul>  ‘I find that in the fall the Claimant suffered skull fractures and a moderately severe TBI. This involved substantial frontal and temporal lobe damage. She has been fortunate and has achieved a very good recovery since the fall. Her intellect and cognition are retained intact. Her symptoms from the TBI are mainly mild to moderate fatigue, irritability, anxiety, some disinhibition, some emotional dysregulation and some mild reduction in short term memory when tired. I do not consider that the Claimant has suffered organic cognitive decline or substantial loss of the function of her memory. I do not consider that the Claimant has lost the ability to multi-task or her special awareness.’  <ul> <li>The Judge also identified the following injuries: fractured ankle; fractured pelvis; sequestrated lumbar disc; and low mood. Also, finding that the claimant’s depression was not the cause of the claimant’s dishonesty at [165].</li> </ul>  Fundamental Dishonesty  <ul> <li>Ritchie J reviewed the law relating to s57 CJCA generally at [171&172]; and made a series of specific findings of the claimant’s dishonesty and its affect upon the claim at [173]:</li> </ul>  ‘The burden of proof lay on the Defendant and I consider that it has been satisfied by the Defendant in relation to the specific findings of the lies I have set out above. Those covered conscious gross exaggeration and fabrication of the true duration and/or extent inter alia of: (1) her left sided hearing loss, (2) her disability when walking, (3) her noise intolerance, (4) her dizziness and balance issues, (5) her fatigue, (6) her lack of spatial awareness, (7) her ankle pain and range of movement, (8) her left sided hand grip and alleged weakness, (9) her cognitive disability, (10) her memory and cognitive functioning, (11) her light intolerance, (12) her back of head pain, (13) her ability to shower alone, (14) her foreign travel, (16) her ability to socialise and her consumption of alcohol, (17) her ability to drive long distances, (18) her need for help with ADL, (19) her headaches.  Overall, I find that the Claimant has presented her function and disabilities to clinicians, medico-legal experts and the Court dishonestly. The effects of this dishonesty on the claim have been substantial and fundamental. It has led to the experts instructed on her behalf making recommendations for care and case management in the past and in future which were and are far in excess of her actual needs caused by the accident. The claim for care was pitched at around £1 million. Some experts recommended care and therapies for life. The dishonesty has led to the cost of surveillance, multiple supplementary medical reports, disclosure applications and the need for a 2-week trial. It has substantially affected the presentation and preparation of both the claim and the defence. I consider that in law these matters are fundamental to the claim.’  <ul> <li>The Judge was not satisfied that the claimant’s repeated lies to the DWP (when applying for benefits) or to L&G Insurance (for life insurance) were fundamental to the claim [174].</li> </ul>  Substantial Injustice  <ul> <li>Concerning ‘substantial injustice’ Ritchie J reviewed the decisions of LOCOG and Woodger v Hallas [175&176] and stated at [177]:</li> </ul>  ‘The principle to be applied is that fundamental dishonesty will result in the Claimant losing her genuine damages. This penalty is intended by Parliament. So, the starting point is that a dishonest claimant is not suffering an injustice per se by being deprived of his/her genuine damages. Once fundamental dishonesty has been found by the Judge then the Court must consider whether the dismissal will cause SI. However, trying to identify whether dismissing a claim for damages with a properly assessed genuine quantum of say £600,000 would cause any or even a substantial injustice to a claimant, whilst ignoring the very dismissal which is the only operative cause of any potential injustice, is imposing a blindfold on the Judge which the Act itself does not impose. I do not understand how a Judge will know injustice when she/he sees it, with the blindfold put on. If that is what Knowles J. was saying then I respectfully do not agree with his ruling on the interpretation of SI. The plain words of the Act tie the responsibility to assess any resulting SI to the dismissal of the claim. In my judgment it is the dismissal of the claim for damages that is the trigger for the analysis of whether a substantial injustice will occur if no damages are awarded. One cannot ignore the very thing which S.57(3) takes away when considering the injustice of the taking away. I accept, of course, that the aim of the section is to punish dishonesty by the dismissal of the claim. But this is tempered by Parliament’s inclusion of S.57(2). This section gives the Judge discretion which, is to be exercised fairly and only if a threshold with two parts is reached. Part one is a finding of injustice to the Claimant. Part two is a finding that the injustice is substantial.’  <ul> <li>At [78] Ritchie J identified the approach to be used by Courts when deciding whether the claimant can use the ‘shield ‘of substantial injustice:</li> </ul>  I consider that the correct approach when deciding whether a substantial injustice arises is to balance all of the facts, factors and circumstances of the case to reach a conclusion about SI. The relevant factors in my judgment are all of the circumstances and include:  (1) The amount claimed when compared with the amount awarded. If the dishonest damages claimed were small or moderate compared to the size of the assessed genuine damages which were substantial or very substantial this will weigh more heavily in favour of an SI ruling.  (2) The scope and depth of that dishonesty found to have been deployed by the claimant. Widespread and gross dishonesty being more weighty against SI than moderate or minor dishonesty.  (3) The effect of the dishonesty on the construction of the claim by the claimant and the destruction/defence of the claim by the defendant. This would be measured by considering all matters including the costs consequences of the work done in relation to the dishonesty compared with the work done had there been no dishonesty.  (4) The scope and level of the claimant’s assessed genuine disability caused by the defendant. If the claimant is very seriously brain injured or spinally injured, then depriving the claimant of damages would transfer the cost of care to the NHS, social services and the taxpayer generally and that would be more unjust than if the claimant had, for instance, a mild or moderate whiplash injury. The insurer of the defendant (if there is one) has taken a premium for the cover provided. Why should the taxpayer carry the cost?  (5) The nature and culpability of the defendant’s tort. Brutal long term sexual abuse, intentional assault or drug fuelled, dangerous driving being more culpable than mere momentary inadvertence.  (6) The Court should consider what the Court would do in relation to costs if the claim is not dismissed. The Judge should ask: will the Court award most of the trial and/or pre-trial costs to the defendant in any event because fundamental dishonesty has been proven? Also, will the claimant have to pay some or all of his/her own lawyers’ costs out of damages if the claim is not dismissed? These both aim towards answering the question: “what damages will be left for the claimant after costs awards, costs liabilities and adverse costs insurance premiums are satisfied?” If the genuine damages to be received by the claimant will be substantially reduced or eradicated by the adverse costs awards, then it is less likely that SI will be caused by the dismissal.  (7) Has the defendant made interim payments, how large are these and will the claimant be able to afford to pay them back?  (8) Finally, what effect will dismissing the claim have on the claimant’s life. Will she lose her house? Will she have to live on benefits, being unable to work?  <ul> <li>Somewhat unusually, the claimant had admitted specific evidence to persuade the Court that she would suffer substantial injustice if the claim was dismissed. This included evidence from herself, her mother and her treating psychiatrist (all of whom provided sworn statements). The evidence was to the effect that the claimant would commit suicide if the claim was dismissed.  However, Ritchie J stated at [204]:</li> </ul>  ‘I consider that I cannot take into account the threat of or the risk of suicide when making the decision on fundamental dishonesty.’  <ul> <li>At [205] the Judge identified the matters which were relevant to the issue of substantial injustice:</li> </ul>  ‘For the decision on SI I shall take each relevant factor in turn. (1) The amount claimed when compared with the amount awarded. The Claimant sought £2.5 million and recovered just under £600,000. The difference is not outside the usual bounds of claims and awards in personal injury claims, however the dishonest parts of the claim inflated the damages sought by over £1 million. (2) The scope and depth of the dishonesty found to have been deployed by the Claimant. The scope of the Claimant’s untruths was wide. They related to her asserted pain, her ADL, her social life, her physical disabilities and her mental disabilities. The level of dishonesty was high in my judgment and was for financial gain. The Claimant told ancillary untruths to the DWP and the life insurer L&G for financial gain alongside her many fundamental untruths to this Court, her treating clinicians and the experts. (3) The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant. I consider that the Claimant’s dishonesty had a very substantial effect on the trial, on the preparation for the trial and on the evidence relating to the claims for case management, care, therapies, loss of earnings and the figure for pain and suffering and loss of amenity. It also led to many more experts’ reports. (4) The scope and level of the Claimant’s assessed genuine disability caused by the Defendant. The Claimant is moderately severely brain injured but has made a very good physical and cognitive recovery. Depriving the Claimant of damages will not transfer much, if any, cost of care to the NHS, social services and the taxpayer generally. In my judgment she can work and live independently. (5) The nature and culpability of the Defendant’s tort. The Defendant’s tort was at the lower end of the culpability scale. The pier had stood in the state it was in for years with no previous accidents. (6) The Court should consider what the Court would do in relation to costs if the claim is not dismissed. If I were to find SI, I would almost certainly award the trial and pre-trial costs to the Defendant in any event because fundamental dishonesty has been proven. These costs may be very substantial considering the size of the Defendant’s costs budget. I have, of course, not seen any Part 36 offers, but the fundamental dishonesty will have an overarching effect on the costs orders which usually flow from Part 36 offers. The Claimant would most likely have to pay some of her own lawyers’ base costs and success fees out of damages if the claim is not dismissed because of my probable adverse costs orders against her. What damages will be left for the Claimant after adverse costs awards, her own lawyers’ costs and insurance premiums are satisfied? Will her adverse costs insurance cover fundamental dishonesty? I doubt it, but have not been shown any policy. In my estimation the genuine damages to be received by the Claimant will be reduced (or potentially eradicated) by the adverse costs orders and the standard terms of her own CFA (which I have not seen but which usually entitle the lawyers to recover their costs on recovery of any sum in damages). It would have assisted the Court if I had been shown the CFA and the adverse costs insurance policy for the SI issue. (7) Finally, what effect will dismissing the claim have on the Claimant’s life. I am unsure what the effect will be on the Claimant’s life. I consider that she is capable of work, physically and mentally, from the perspective of the injuries caused by the Defendant. I take into account the evidence of the Claimant’s suicidal ideation. I consider that the Claimant’s current unstable state of mental health has been caused by her own dishonesty. The advice she received to take a sabbatical and later, to give up work, was likewise so caused. The Claimant was in work until October 2022. In my judgment her stopping work was not caused by the tort. I am unclear whether the dismissal of the claim will lead to the Claimant being unable to repay her mortgage. She paid part of it off out of the £108,000 she received from an insurance policy after the fall. She should be able to afford the reduced mortgage repayments if she gets back to work. She has minimal savings.’  <ul> <li>Noting that no application had been made by the defendant for repayment of a £75,000 interim payment under CPR25, and accepting that to repay the sum the claimant would lose her home which combined with the dismissal of the claim could be descried as a ‘substantial injustice’ because she would be ‘homeless, jobless, depressed and suicidal’ the Judge balancing the remaining factors before reaching a decision at [206]:</li> </ul>  ‘This Claimant maintained before trial, in open Court and in her last served witness statement, that she had never lied during this claim. I take into account the wide scope and considerable depth of the Claimant’s fundamental dishonesty in the claim, compared to the low level of culpability of the Defendant (the Defendant company was also only 2/3rds to blame on liability). I take into account the large sums which would be taken out of the Claimant’s damages by adverse costs orders if damages are awarded. I further take into account the excellent recovery which the Claimant made from the injuries with high quality NHS treatment both at hospital and for years afterwards. On balance, I do not find that it would be a substantial injustice to dismiss the claim. I know it looks like a large sum of money to deprive a genuinely injured person of, but by drafting and passing S.57 Parliament sought to stamp out dishonesty which is fundamental in personal injury claims and the Claimant has breached this law. Finally, I take into account that the Claimant was wholly unrepentant when she gave evidence and had sought, in parallel, to defraud the DWP and L&G insurance about her disabilities.’  <ul> <li>The claim was dismissed.</li> </ul>  Takeaway  <ul> <li>Ritchie J conducted a detailed analysis of the relevant factors a court should identify when considering whether a claimant can prove substantial injustice and avoid the draconian dismissal of a claim under s57 CJCA.  This is a significantly more nuanced approach than used by the courts is cases such as LOCOG, Iddon and Woodger v Hallas.   I expect that in future other courts will shape their determination of substantial injustice by reference to the criteria identified by Ritchie J in Williams-Henry.   </li>  <li>Defendants can take comfort in the robustness of the decision against the evidential background of widespread and destructive dishonesty.  It is another success for a defendant; I am unaware of any reported decision where a claimant has successfully used the ‘shield ‘of substantial injustice.</li>  <li>There is however some comfort for claimants.  Courts should not ignore the fact of the dismissal of the claim and conduct their assessment ‘blindfold.’  In cases where the dishonesty is less extensive and the affect upon the conduct of the claim by the defendant more limited, claimants may now use the evidential framework used by Ritchie J to protect themselves against the punitive operation of s57.</li>  <li>Will courts know substantial injustice when they see it? I think its more likely to be identified now than before.  </li> </ul>  <a href="https://parklaneplowden.co.uk/Corin_Furness">Corin Furness</a> is a member of the PLP Serious Injuries Team and Head of the Civil Fraud & Credit Hire Team.

Parklane Plowden shortlisted at the British Claims Awards 2024

Parklane Plowden are pleased to announce that we have been shortlisted for the Barristers' Chambers of the Year award at the <a href="https://www.claimsmag.co.uk/british-claims-awards" target="_blank" rel="noreferrer noopener">British Claims Awards</a> 2024.  The winners will be announced at the awards ceremony on 6th June.  Congratulations to all the nominees!

24 April 2024 | Commercial Law with Lunch

Join our Commercial team for the first PLP Commercial Law with Lunch of 2024. The seminar will take place in our Leeds office with lunch, refreshments, and the chance to network on arrival.   Members of our specialist Commercial team will discuss the below topics.  Programme  12:00 - Lunch & Networking  12:30 - <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/">Sean Kelly</a> - Mechanics of a Partnership Claim  13:00 - <a href="https://www.parklaneplowden.co.uk/our-barristers/michael-james/">Michael James</a> - Equal shareholders: Disputes between directors  13:30 - <a href="https://www.parklaneplowden.co.uk/our-barristers/stuart-roberts/">Stuart Roberts</a> - Restrictive Covenants  14:00 - Close  Please email events@parklaneplowden.co.uk to register.

REPLAY: Updates in Employment Law: What you might have missed and what’s coming up? | 27 March 2024

<iframe width="560" height="315" src="https://www.youtube.com/embed/Q-pYI23rW04" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>   Parklane Plowden's Employment Law with Lunch seminars bring you the latest law updates.  Employment specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/tim-wilkinson/">Tim Wilkinson</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/">Bharat Jangra</a> explore the recent updates and new regulations upcoming in Employment Law.  Click on the above video to watch the webinar recording.

Parklane Plowden Podcast – A missed opportunity for workplace sexual harassment law

Listen to Parklane Plowden’s latest PLP Podcast – A missed opportunity for workplace sexual harassment law.  In October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, making changes to the remedy provisions in the Equality Act in relation to sexual harassment at work.  Parklane Plowden employment barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/roger-quickfall/">Roger Quickfall</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> explore the current protections for employees suffering sexual harassment and the journey behind the legislative change.  They discuss why an opportunity was missed with the upcoming legislation in relation to protecting employees from third party sexual harassment such as that by clients of their employer and how employers and practitioners can prepare for when the new legislation comes into force.  Helpful resources and further reading:  <ol class="wp-block-list"> <li><a href="https://www.legislation.gov.uk/ukpga/2023/51/contents">Worker Protection (Amendment of Equality Act 2010) Act 2023</a></li>  <li><a href="https://bills.parliament.uk/bills/3205">History of the progress of the Bill where the debates can also be found</a></li>  <li><a href="https://metoomvmt.org/">Me too </a></li> </ol>  Listen to the podcast below:

Parklane Plowden sponsor AvMA’s 34th Annual Clinical Negligence Conference

We are pleased to announce we will be sponsoring and attending AvMA's 34th Annual Clinical Negligence Conference on the 21 - 22 March 2024. The conference will take place at the Royal Armouries Museum, Leeds.  The conference is aimed at clinical negligence specialists. The very best medical and legal experts will discuss up to date issues, developments and policies in clinical negligence and medical law.   You can find us at stand 16 and we look forward to seeing you there!

Parklane Plowden Shortlisted at the Modern Claims Awards 2024

Parklane Plowden Chambers are shortlisted for the Diversity Award at the Modern Claims Awards 2024!  Last year, PLP were highly commended in this category.  The awards ceremony will take place on the 18 April 2024. The full shortlist can be found <a href="https://www.modernclaimsawards.com/2024shortlist">here</a>.  Congratulations to everyone shortlisted.

Women’s Forum Event: International Women’s Day 2024

Last night, Parklane Plowden hosted the North Eastern Circuit Women's Forum event to celebrate International Women's Day at Portland House in Newcastle. The event was co-sponsored by New Park Court Chambers. Charing the event was Kama Melly KC joined by vice chairs, <a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> and Chloe Hudson.  Attendees heard from the panel of speakers, HHJ Clemitson, HHJ Moreland and <a href="https://www.parklaneplowden.co.uk/our-barristers/elizabeth-hodgson/">Elizabeth Hodgson </a>sharing their experiences and guidance.  This year the theme for International Women's Day is Inspire Inclusion.  <figure class="wp-block-image size-large is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2024/03/WhatsApp-Image-2024-03-06-at-12.26.12-1-1024x1024.jpeg" alt="" class="wp-image-9508" style="width:600px;height:auto"/></figure>

Rule 50 in the spotlight: privacy in the Employment Tribunal – a recent case and some practical tips

The key provisions in brief  Rule 50  Under r50:  “(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.  (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.”  R50(3) contains a list of illustrative orders the Tribunal may make. That includes:  <ul> <li>R50(3)(a) – An order that a hearing, or part of a hearing be held in private.</li>  <li>R50(3)(b) – Anonymisation orders applying to parties, witnesses, or other people referred to in proceedings. Anonymisation can relate to the course of the hearing, in the list, and/or any documents forming part of the public record, such as the judgment or reasons.</li>  <li>R50(3)(c) – An order for measures preventing witnesses at a public hearing being identifiable by members of the public, such as screens.</li>  <li>R50(3)(d) – A restricted reporting order (“RRO”) within the terms of s11 or 12 of the Employment Tribunals Act 1996 (“ETA”). Respectively, these sections relate to sexual misconduct/offences and disability (see below).</li> </ul>  Under r50(5), an RRO must meet certain requirements:  “(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;  (b) it shall specify the duration of the order;  (c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and  (d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.”  S10 ETA  The Tribunal can be invited to sit in private to hear evidence which is likely to consist of information which:  <ul> <li>Has been communicated or received in confidence.</li>  <li>Would cause substantial injury to the Respondent.</li> </ul>  S11 ETA  In cases involving allegations of the commission of sexual offences, s11 ETA (read with r50) enables the Tribunal to grant anonymity to those affected by or making an allegation of the commission of sexual offences.  In cases involving allegations of sexual misconduct, it enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.  Sexual misconduct means “the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed”.  Sexual offence means any offence to which certain statutory provisions, including SO(A)A apply.  The RRO should prevent the reporting of any matter likely to lead members of the public to identify the person affected by (i.e. the alleged perpetrator), or the person making (i.e. the complainant), the allegation.  S12 ETA  In a “complaint which relates to disability in which evidence of a personal nature is likely to be heard”, s12 ETA (read with r50) enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.  Evidence of a personal nature means “any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported”.  Sexual Offences (Amendment) Act 1992 (“SO(A)A”)  S1 grants lifelong anonymity to those alleging commission of sexual offences:  “(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.  (2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.”  Accused means charged with an offence.  No such protection is extended to alleged perpetrators, by virtue of their status alone. However, cases of ‘jigsaw identification’ – where revealing the identity of the perpetrator would be likely to lead to identify the person making the allegation – may necessitate an order being sought in relation to the alleged perpetrator under s1.  Z v Commerzbank AG [2024] EAT 11  Facts  The Claimant made discrimination allegations and alleged that a female colleague, Q, had sexually harassed and sexually assaulted him. After he was dismissed by Commerzbank, he brought a claim against it and other Respondents, including Q.  First instance  On application, restricted reporting and anonymity orders were made in respect of the Claimant and Q.  In relation to the Claimant, the Judge found that he was protected for life by operation of s1 of the SO(A)A. In respect of the anonymity order, she decided to make the same order in the interests of justice under r50(3)(b) to give effect to the SO(A)A. She also made a restricted reporting order (“RRO”) of indefinite duration under r50(3)(d). She considered freedom of expression under art 10 but held that it was proportionate to protect the Claimant’s art 8 right to privacy because “the test of strict necessity [in r50] is satisfied in the case of a victim of an alleged sexual offence”.  In relation to Q (and her husband), who did not enjoy the protection of SO(A)A, similar orders were made, but of limited duration until the promulgation of the liability judgment. The Judge referred to art 10 but found it was outweighed by Q’s art 8 rights. She held that post-promulgation restrictions fall outside the statutory exception in s11 ETA.  At the liability hearing, the Tribunal concluded that the Claimant’s account was false and made up. It dismissed all his claims.  The Respondents applied to lift the anonymity order and RRO (“the privacy orders”) in respect of the Claimant, and to extend them in relation to Q.  In respect of Q, the privacy orders were varied to have indefinite effect. Whilst not the subject of any appeal, Mr Justice Kerr expressed discomfort that the orders had no sunset or lapsing provision requiring a conscious decision to extend the duration of the order periodically.  In respect of the Claimant, the Tribunal revoked the privacy orders, subject to a temporary stay for any appeal. It referred to Mr Justice Soole’s decision in A v X UKEAT/0113/18, noting that there appears to be no direct authority on whether and if so how the Tribunal should give effect to the SO(A)(A).  The Tribunal concluded that there had been a material change of circumstances sufficient to enable the Tribunal to consider revoking the privacy orders:  “The exceedingly serious allegations on which the Claimant based his application for anonymity have been considered, comprehensively dismissed and found to be false and, in large part, made up. The foundation on which EJ Brown necessarily approached the application, namely that the Claimant was relying on sincere allegations advanced in good faith, has been exploded.”  The power to make the order lay under r50, not SO(A)A, and the power to revoke it under r29. The correct approach was to exercise its case management powers under r29 “in keeping with the spirit and intention” of SO(A)A. That involved recognising that protection under the SO(A)A is automatic and in principle permanent. The rationale being to avoid discouraging victims from making complaints for fear of distressing publicity. However, the Employment Tribunals Rules of Procedure enable the Tribunal to remove or relax that protection in special circumstances:  “We simply cannot accept that the law is powerless to separate the Claimant from a protection to which, as is now apparent, he was never entitled. It is to us unthinkable that our procedural law, founded on the overriding objective of deciding cases justly, could contemplate such a bizarre and unjust result.”  It went on to consider the balancing exercise of competing interests and concluded that art 10 clearly outweighed art 8:  “His is a most unusual story and we can well see why it would be of considerable interest to the press and the public. His identity would be a matter of legitimate interest given the Tribunal's findings, in the way that Q's would not. Against the interests of open justice and freedom of interest, we see no countervailing argument based on the Claimant's Convention rights. If, as we have held, he did not have a sustainable right to litigate anonymously, it cannot be said that his right to respect for his private life would be violated as a consequence of the anonymity being lost.”  Appeal  The Claimant appealed the revocation of the anonymity order and RRO.  Mr Justice Kerr identified four strands of authority: the common law; art 8; SO(A)A and ETA read together with r50. He described this as a “complex interaction”.  There was no dispute between the parties regarding the principle of open justice and derogations from it applying the common law or art 8, balanced against art 10. There are many authorities dealing with this balancing exercise.  He noted that:  <ul> <li>The protection of s1 SO(A)A is statutory an therefore automatic – there is no need for the trial court to make an order mirroring it.</li>  <li>By s1(4), the section does not prohibit publication of a report of a subsequent trial of the complainant for perjury or perverting the course of justice.</li>  <li>There are provisions to allow removal or relaxation of the s1 protection, but these must not be given by reason only of the outcome of the trial.</li> </ul>  Mr Justice Soole reviewed several authorities where it had been assumed that s1 SO(A)A applied to a Claimant making an allegation in the Tribunal.  He held that the words “an allegation has been made” in s1(1) SO(A)A “refer to the making of an allegation in circumstances which raise, or are intended to raise, a real possibility that a criminal charge will follow.”  Such an allegation need not be made by the alleged victim. For example, a complaint by a parent to police that their child has been sexually assaulted would trigger anonymity for the child.  He stated:  "the accurate formulation is that "allegation" in section 1(1) refers to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought. The paradigm case is a complaint to police. Other complaints made seriously and intended to or likely to be acted upon might be to a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system.  It follows that I do not think an ""allegation"" in section 1(1) includes, without more, an allegation made in civil, family or tribunal proceedings of conduct that, if committed, would be one of the sexual offences covered by the 1992 Act.“  The Claimant nor anyone else had made such an allegation against Q and the Judge at first instance was wrong to conclude he was entitled to the protection of the SO(A)A.  However, Mr Justice Soole commented, obiter, there will be a difficulty in other cases where the requirement in s1(1) is satisfied, for example where a serious complaint of a sexual offence has been made to police by the time the allegation of the same conduct is made in the Tribunal. In those circumstances, the only means of removing the protection of SO(A)A is in accordance with its provisions, for example if there is a subsequent trial for perjury or if a Justice of the Peace of a Crown Court Judge decides to relax the restriction.  He noted the cross reference to SO(A)A in s11(6) ETA as suggesting that parliament had in mind the possibility that the protection of SO(A)A could apply in cases where the same conduct is alleged as a criminal matter and in the Tribunal. In such cases, a privacy order would be made under r50.  The lacuna, however, is that an Employment Judge does not have the corresponding power given to a Justice of the Peace of a Crown Court Judge to remove the restriction in circumstances where the Tribunal decides a complaint is false. The solution may here lie with Parliament.  Albeit for slightly different reasons, the Tribunal at first instance was therefore correct to revoke the privacy orders in respect of the Claimant. It was “difficult to think of a more striking change of circumstances” and the art 10/art 8 balance had been struck correctly.  Some practical tips  <ul> <li>Privacy orders should be considered in any sex-related or sexual harassment claim</li>  <li>In disability-related cases they are rarer</li>  <li>The parties cannot agree to a departure from open justice – the Tribunal will not merely approve an agreed order, but will need to consider whether a derogation from open justice is necessary</li>  <li>The interests of justice and protection of a person’s Convention rights are two distinct but often overlapping grounds upon which derogation from open justice can be sought</li>  <li>The party seeking the privacy order has the burden of proving it is necessary to deviate from the principle of open justice</li>  <li>Evidence should therefore be adduced in support of such an application e.g. medical evidence if an assertion is made of risk of damage to health, evidence of any complaint to police</li>  <li>The Tribunal may need to hear witness evidence e.g. to determine whether revealing certain information could lead to jigsaw identification of a complainant</li>  <li>A draft order should be prepared to accompany the application, with thought being given to precisely what is sought e.g. Anonymity? Of whom? An RRO? For how long?</li>  <li>Applications should ideally be made at a preliminary hearing in advance of the final hearing</li>  <li>There may be consequential impacts of a privacy order on case preparation e.g. redaction, labelling of individuals by letters, preparation of one bundle for the parties and a redacted bundle for the public</li> </ul>  For a fuller discussion of this topic, join <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> at <a href="https://www.parklaneplowden.co.uk/20-march-2024-employment-grandstand-seminar-newcastle/">Parklane Plowden’s Employment Grandstand on 20 March</a> for her talk: The Limits of Open Justice: Anonymity and Privacy Issues in the Tribunal.

Cait Sweeney successful in precedent-setting appeal Nazir & Nazir -v- Begum [2024] EWHC 378

Cait Sweeney acted for the successful Respondents in an appeal, before Freedman J, regarding the operation of and the meaning of a ‘trust’ within the Land Registration Act 2002 and the effect of a registered proprietor’s death on a claim for adverse possession.  THE FACTS  The Appellants sought to appeal the first instance decision in which the Respondent was found to have obtained title to a parcel of land through adverse possession.  The basis of the Appellant’s appeal was that the first instance decision was wrong, as the Respondent could not establish the requisite 10 years of adverse possession due to the operation of the Land Registration Act 2002 (“LRA 2002”) Schedule 6, Paragraph 12 which states:  “A person is not to be regarded as being in adverse possession of an estate for the purposes of this schedule at any time when the estate is subject to a trust, unless the interests of each of the beneficiaries in the estate is an interest in possession.”  The Respondents had been in possession of the land from at least 2012 onwards. The registered proprietor of the land was the Appellant’s father, who had died in 2010. Shortly before proceedings were issued the Appellants obtained Letters of Administration. They argued that their father’s estate, which included the disputed land, was held “in trust” by them as personal representatives and as a result the Respondents could not have been in adverse possession of the land by virtue of Sch 6, Para 12 LRA 2002.  THE APPEAL  The Appellants were granted permission to appeal by Sweeting J on the basis that there was some other compelling reason for the appeal to be heard, namely:  “the uncertainty as to the effect of an administration of an estate upon a period relied upon as adverse possession”.  THE JUDGMENT  As outlined  by Freedman J, there is no precedent from the higher courts on the point raised within the appeal. However, the court concluded that the reference to “trust” within Sch 6 Para 12 LRA 2002, did not encompass a deceased individual’s estate in administration for the following reasons:  <ul> <li>There are fundamental differences between a trust and trustees (in the classic sense) and an estate in administration and personal representatives. Executors or administrators are not trustees in any usual sense of an unadministered estate. Furthermore the trust fund is by definition unidentifiable until the administration ends. The beneficiaries are likewise unknown until the administration is brought to an end by the assenting of property to those entitled.</li> </ul>  <ul> <li>If Parliament had wished to extend the ambit of the trust referred to in Sch 6 para 12  to include deceased individual’s estate, it could have done so expressly and easily by incorporating s.68 (17) of the Trustee Act 1925 into s.132 of the LRA as it had done in the Limitation Act 1980.</li> </ul>  <ul> <li>If Sch 6 para 12 were treated as extending to a deceased individual’s estate, then the exception to Sch 6 para 12 which provides “unless the interests of each of the beneficiaries in the estate is an interest in possession”  would be difficult to apply. The wording of this exception assists in the construction that beneficiaries are required as in a conventional trust, and that without that, there cannot be a trust for the purpose of Sch 6 para 12.</li> </ul>  <ul> <li> There was nothing within the Final Report of the Law Commission prepared in respect of the implementation of the LRA 2002  to suggest that Sch 6 para 12 was intended to apply to a situation where there is no ‘trust’ in the strict sense of the word recognised by equity and no possibility of a revisionary interest.</li> </ul>  It was therefore held that the effect of the death or the registered owner or the estate being in administration during the required ten year period did not operate as a bar to a claim for adverse possession.  A full copy of the judgment can be found here:  <a href="https://www.bailii.org/ew/cases/EWHC/KB/2024/378.html">https://www.bailii.org/ew/cases/EWHC/KB/2024/378.html</a>

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