Victoria Steele, Author at Parklane Plowden

Expertise

Our Expertise

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

Mike Stubbs Funeral – Friday 16 February 2024

As a mark of respect due to the funeral of our esteemed colleague Michael Stubbs our Newcastle office will be closed on Friday 16th February and will re-open on Monday 19th February.  Our Leeds office will also be functioning on limited team members today.  We thank you for your patience with us on this difficult day.

22 February 2024 | Employment Law with Lunch

The next webinar in our ‘Law with Lunch’ series of bitesize, lunchtime talks covering legal issues of the moment is not to be missed.  Thursday 22 February 2024 | 12:30 - 13:30  Join employment specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/">Sarah Brewis</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/">Bethan Davies</a> as they discuss remedy arguments and calculations.  Please register via events@parklaneplowden.co.uk

20 March 2024 | Employment Grandstand Seminar, Newcastle

Successful Litigation for Employment Practitioners: Practical Guidance and Useful Tips  Parklane Plowden Chambers would be delighted if you would join our employment team specialists on the 20th March 2024 for an afternoon of talks giving practical guidance and useful tips on running a successful employment tribunal litigation.  Location: <a href="https://www.bing.com/maps?mepi=101%7EDirections%7EUnknown%7EDirection_Button&ty=0&rtp=pos.54.97492980957031_-1.6094900369644165__Laing+Art+Gallery__e_%7E&mode=d&v=2&sV=1&cp=54.974913%7E-1.609465&lvl=14.5">Laing Art Gallery</a> New Bridge Street Newcastle Upon Tyne NE1 8AG  Time: 12:00 - 16:30  We are offering an early bird price of £50pp when registering to this event until the 26 February 2024. Tickets will be £75pp after this date.   Programme  12:00 - 12:55 | Lunch and Refreshments  12:55 - 13:00 | Welcome  13:00 - 13:30 | <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/">Andrew Sugarman</a> - How to win in the Employment Tribunal: top 10 tips  13:30 - 14:00 | <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a> - Mastering the virtual maze: a guide to efficiently handling employment tribunal claims via the online portal  14:00 - 14:30 | <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-dunn/">Robert Dunn </a>& <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> - Case choreography and preliminary pizzazz: tips on navigating a CMPH  14:30 - 14:45 | Break  14:45 - 15:15 | <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> - The limits of open justice: anonymity and privacy issues in the tribunal  15:15 - 15:45 | <a href="https://www.parklaneplowden.co.uk/our-barristers/nicola-twine/">Nicola Twine</a> - Striking the balance: when to apply (and when not to), strike out and deposit orders  15:45 - 16:15 | <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/">Bethan Davies</a> - It’s all in the words: maximising your witness statements  16:15 - 16:30 | Questions and closing remarks   Lunch and refreshments will be served from 12pm with speakers starting at 13:00 until 16:30. Guests will then be welcome to join us in Chambers at Portland House for drinks.  If you are interested in attending please <a href="https://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x75E2A344A6368118|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x75E2A344A6368118|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">sign up here</a>.

Bathgate v Technip [2023] CSIH: Broadening the scope of Qualifying Settlement Agreements

As all employment lawyers know, in order to protect them from being taken advantage of by unscrupulous employers, employees cannot ordinarily contract out of their employment rights. There are only two exceptions.  They can do so in a contract of settlement made with the assistance of ACAS, known as a ‘COT3’, or they can do so in ‘qualifying settlement agreement’, but not otherwise.  I recently came across the notes for a talk I gave back in 2006 in which I confidently stated that one of the differences between a COT3 and a qualifying settlement agreement (or a compromise agreement as they were then called), was that a COT3 could compromise claims arising out of future conduct whereas a qualifying settlement agreement could not.  Following the recent Court of Session judgment in Bathgate v Technip [2023] CSIH 48, however, it appears that my confidence was misplaced.  Legal Background  Since at least the House of Lords decision in BCCI v Ali [2001] ICR 337,it has been clear that parties can use a COT3 to compromise claims that have not even come into existence, although as Lord Bingham put it ‘If the parties had sought to achieve so extravagant a result they should in my opinion have used language which left no room for doubt’. That is because there is nothing to stop parties at common law from contracting out of future rights; and in order to fall into the ‘COT3’ exception, the only stipulation is that the agreement is ‘made with the assistance of ACAS’. In other words, any otherwise contractually enforceable agreement made with the assistance of ACAS will work; a point well illustrated in the context of post-employment victimisation in Arvunescu v Quick Release [2022] EWCA Civ 1600.  It is slightly different with qualifying settlement agreements. To come within that exception there are a number of hoops that have to cleared, one of which is that the agreement must ‘relate to the particular complaint’. It might be thought that for an agreement to relate to ‘the particular complaint’ then the particular complaint must be capable of being in existence at the time the agreement is signed. That certainly was the view of the EAT in Lunt v Merseyside TEC Ltd [1999] ICR 17, when it said:  'A compromise agreement cannot, therefore, seek to exclude potential complaints that have not yet arisen on the off-chance that they might be raised; it cannot, in other words, be used to sign away all the employee's tribunal rights, as can be done in the case of a negotiated settlement drawn up with the assistance of a conciliation officer.'  That also seems to have been the intention behind the statutory provisions, given the comments of Viscount Ullswater when he introduced the relevant statutory provisions in the House of Lords:  'We are proposing that these procedures should only be available in the context of an agreement which settles a particular complaint that has already arisen between the parties to that complaint.'  That too was Lord Summers’s view when Bathgate was in the Scottish EAT. Drawing from the judgments of Mummery and Smith LJJ in University of East London v Hinton [2005] ICR 1260, that the broad purpose behind the legislation was to protect employees from relinquishing their rights; he concluded that the requirement that a settlement agreement ‘relates to the particular complaint’ could never be met in relation to a cause of action which had not emerged at the time of the agreement.  The Judgment of the Court of Session  Needless to say, the Court of Session came to the opposite conclusion. It reasoned that if Parliament had intended to lay down rules limiting parties’ freedom of contract, it would have expressed them in clear and unequivocal terms; and it had not done so. In its view, all that the words ‘relate to the particular complaint’ required was that the complaint being made was covered by the terms of the contract. It could see no justification for putting a temporal limit on what could be compromised by a settlement agreement, when none existed for a COT3. On a natural reading of the settlement agreement signed by Mr Bathgate, future claims for age discrimination were covered. Accordingly his age discrimination claim, which arose out of conduct which post-dated that agreement, had been validly compromised even before the discriminatory conduct had occurred.  Comment  With respect to the Court of Session, its reasons do not seem to me to be entirely convincing. Firstly, it is abundantly clear that Parliament was laying down rules to limit parties’ freedom to contract. It does that in terms at section 144(1) of the Equality Act 2010. The section the Court was interpreting is an exception to that general prohibition, it is not itself a limitation to the right to contract.  Secondly, on one reading of the Court of Session analysis, the statutory requirement for the agreement to ‘relate to the particular complaint’ is entirely superfluous. If the agreement does not ‘relate to the particular complaint’ in the sense used by the Court of Session, then as a matter of contract it will not compromise the complaint. Surely Parliament intended something more by those words than a bland restatement of the obvious. Indeed, I do wonder whether the ubiquitous list of UK employment rights (which Smith LJ had warned against in Hinton) is really quite what Parliament had in mind either.  Thirdly, and perhaps most compellingly, on the Court of Session analysis, the central purpose of the prohibition on contracting out would seem to be undermined. On its analysis, there is nothing to prevent an unscrupulous employer from asking an employee (after advice from an insured lawyer and presumably some form of payment) to sign away their employment rights pre-emptively during the course of their employment. Surely it is that evil that the ‘particular complaint’ requirement was designed to prevent. By definition, ACAS will not become involved until a dispute has arisen, so there is less need for a similar protection in respect of a COT3. But that is not the case with legal advisors. Without some sort of safeguard, they could be brought in to give advice on the waiver of employment rights, even as the ink is drying on the employment contract.  The Court of Session is not technically binding in England and Wales, but its decisions are highly persuasive; and unless and until the issue is revisited by the Court of Appeal, it is likely to be followed. In the meantime, and out of an abundance of caution, I will still be advising employers to utilise a COT3 if they wish to be confident of compromising any claims arising out of future conduct.  <a href="https://www.parklaneplowden.co.uk/barristers/dominic-bayne">Dominic Bayne</a> acted for Mr Bathgate before the EAT and at first instance. He is joint head of <a href="https://www.parklaneplowden.co.uk/expertise/employment">PLP’s employment team</a>, and is recognised by the directories as one of the leading employment barristers on the North Eastern Circuit.

Nicola Phillipson and Sean Kelly joint heads of Parklane Plowden’s Chancery and Commercial Team

Parklane Plowden is pleased to announce that <a href="https://www.parklaneplowden.co.uk/our-barristers/nicola-phillipson-tep/">Nicola Phillipson</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/">Sean Kelly</a> are the new joint heads of the Chancery and Commercial Team.  Nicola and Sean will be taking the place of <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-harrison/#">Sarah Harrison</a>, who is now the Deputy Head of Chambers.  Chambers would like to thank Sarah for her hard work during this role and thanks Nicola and Sean for stepping into this role.

TA v the Public Guardian and duties of a Certificate Provider

Introduction  The Judgment can be found here <a href="https://www.bailii.org/ew/cases/EWCOP/2023/63.html">TA v the Public Guardian [2023] EWCOP 63 (07 December 2023) (bailii.org)</a>.  The case involved an appeal to Mrs Justice Lieven by P’s potential attorney (‘the Appellant’) from a decision of HHJ McCabe sitting in the Court of Protection. The Judgement is short, and therefore probably worth reading, particularly if you want to be refreshed of all the relevant statutory provisions which I have not set out in this note.  Facts  In brief, The case arose from a challenge by the Office of the Public Guardian (‘OPG’) to the validity of Lasting Powers of Attorney instruments for both Property and Financial Affairs and Health and Welfare (‘the LPA’s’), on the basis that they did not comply with paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act (‘the 2005 Act’).  The Application originally included non-compliance on two grounds. However, the only ground pursued at the first hearing was that the Certificate Provider (‘CP’) ‘failed to make the requisite checks of understanding with P prior to certification’.  In the 2005 Act, Schedule 1 2(1) provides that : - ‘The instrument must include –  (e) a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument –  <ul> <li>The donor understands the purpose of the instrument and the scope of the authority conferred under it,</li>  <li>No fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and</li>  <li>There is nothing else which would prevent a lasting power of attorney from being created by the instrument.’</li> </ul>  The PG asked the court at first instance to determine whether the CP had failed to fulfil the requisite checks of understanding (i.e. those set out in the previous paragraph) with the donor prior to the execution of the LPAs.   The attorney argued that there was no requirement for the CP to carry out various checks of the donors understanding, and that how the CP satisfied themselves of matters relating to the donor prior to signing the LPAs was a matter for them. Further, that neither the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (‘ the 2007 Regulations’), or the 2005 Act, prescribed particular steps that the CP would have to take to ascertain the donors understanding.  HHJ McCabe disagreed and held that she was entitled to look for evidence from the CP that the requirements of Schedule 2 had been met. In this case, the CP had simply asked the donor whether she was happy about the LPAs, and the donor confirmed she was. The Judge held it was difficult to understand (from this information), how the CP had satisfied herself that the donor understood the scope of her authority; that there was no undue pressure or inducement; and there was nothing else to prevent the LPA being created. The LPAs were found to be invalid.  The Appeal  The appeal was on the basis that :-  The statutory scheme sets out in clear terms what is required in order for an LPA to be valid, and the only requirement in para 2(1)(e) was for the provision of a certificate. There was no requirement for the CP to take any particular steps prior to signing the certificate, or for the court to ensure that the requisite opinion is formed.  HHJ McCabe therefore wrongly concluded that “this opinion is one of the requirements of the creation of an LPA …” when it is wrong and there is no requirement for the opinion.  Finally, that the Judge wrongly introduced the concept that the opinion must be valid and imposed obligations on the CP.  It was argued by the Appellant that the Judge’s approach undermined the scheme of the MCA; that there was a presumption of capacity; and that the Judge’s approach was that even though the donor had capacity, the LPA was invalid because the certificate provider failed to undertake sufficient checks.  On behalf of the PG, I argued that it was clear that para 2(1) (e) required the CP to have formed the requisite opinion.  This opinion must be based on something which allowed the opinion to be properly formed. The provision of a certificate is fundamental to the formal validity of the LPA. It is not simply a signature verifying capacity, but it is a signature which also goes to issues such as understanding who the attorney is, and undue influence etc.  In order to establish the validity of what the signature is verifying, the court must be able to look behind the signature and the opinion which was formed prior to signing.  Whilst the Appellant appeared to be suggesting that as long as the signature was present, the formalities were met, I submitted that the appellants submission taken at face value could result in a situation where there was no enquiry as to the basis on which the CP had formed the requisite opinion. This could result in an LPA being taken as valid when the CP had not spoken to the donor, or ascertained anything about the wishes, intentions or understanding of the donor. Such a situation would be absurd and would undermine the protection intended in Schedule 1.  Mrs Justice Lieven considered the statutory language, the overall statutory scheme and the purpose at which it was aimed. She held that the court was entitled to check that the requisite opinion had been formed by the CP and that the Judges approach at first instance was correct. The appeal was dismissed.

Roundup of recently reported modest asset cases

As the end of the first week of the Financial Remedies Court (FRC) Reporting Pilot in Leeds draws to an end, what follows is an update of modest asset cases reported in the last six months:  VT v LT [2023] EWFC 256 (B)  <a href="https://www.bailii.org/ew/cases/EWFC/OJ/2023/256.html">https://www.bailii.org/ew/cases/EWFC/OJ/2023/256.html</a>  DJ Hatvany sitting at the FRC in Bristol, 18 December 2023  Core facts:  W (lived in rented accommodation); H (continued to live in the FMH- in his sole name)  18-year relationship with three children (two of which still minor; shared care in place)  Assets:  FMH (four-bed) with net equity of £118,000 (used by H for his business)  Marital debt £33,777 in H’s name and £3,922 in W’s name (plus legal costs)  H’s business, value uncertain but income stream for H who was sole shareholder  Parties’ positions:  W sought a sale of the FMH and a lump sum of £80,000 to buy a shared ownership property, with H to retain all marital debt  H sought to retain the FMH and pay W a lump sum of £45,000 (£20,000 now and balance within 18 months)  Outcome:  <ul> <li>H to retain the FMH (the judge accepted that this functioned as an office for H as well as a home and he could not afford to relocate)</li>  <li>H to pay W a lump sum of £55,000 (£20,000 now and an additional £35,000 within 24 months), with an order for sale in default</li>  <li>H to service the marital debt in his name</li>  <li>Pension Sharing Order in W’s favour</li>  <li>Clean break</li> </ul>  Useful takeaways from this case:  This is a short, ex-tempore judgment similar to the ones we may encounter in our day-to-day practice. DJ Hatvany speaks for the entire profession when he says at paragraph 33: “There is no easy answer. The court can only look for the fairest solution in difficult circumstances having regard to the criteria set out in section 25 of the matrimonial causes act 1973.”  The parties both had responsibilities towards the children of the marriage, and equal housing needs. One of the difficulties was that W’s income was supplemented by Universal Credit and therefore any lump sum over and above £16,000 would have wiped out her entitlement to Universal Credit unless it was utilised to meet her housing needs (hence the shared ownership) within six months (or longer if a sale did not complete). For a detailed analysis of the interplay between financial remedy orders and welfare benefits, the following articles on the Financial Remedies Journal are a must-read: <a href="https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm">https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm</a> and <a href="https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm)">https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm)</a>.)  The judge opted for a ‘creative’ solution, i.e. a deferred lump sum which enabled H to retain the FMH (at least in the interim) and to allow W to part-fund a shared ownership property. This case also highlights the difficulties that both courts and practitioners face at present with competing evidence on the parties’ borrowing capacity.  AXA v BYB (QLR: Financial Remedies) [2023] EWFC 251 (B)  <a href="https://caselaw.nationalarchives.gov.uk/ewfc/b/2023/251">https://caselaw.nationalarchives.gov.uk/ewfc/b/2023/251</a>  Recorder Rhys Taylor sitting at the Central Family Court, 18 December 2023  Core facts:  W aged 36 (lived in rented accommodation); H aged 41 (continued to live in the FMH- in his sole name)  5-year relationship with a child aged 3  Assets:  FMH net equity £100,000  London flat in W’s sole name net equity of £50,000 (W found to hold 50% beneficial interest)  Proceeds of Iranian property owned by H but sold in 2022 (value unknown)  W’s debts totalling £122,674 and H’s debts totalling £101,600  H’s pensions £86,983 and W’s pensions £28,844  Parties’ positions:  <ul> <li>W sought an order for sale and 100% of net proceeds to be paid to her or a Mesher order until child attained majority. She also sought periodical payments and her jewellery to be returned.</li>  <li>H sought to retain 75% of the net proceeds of the FMH, his pensions and clean break.</li> </ul>  Outcome:  <ul> <li>FMH (and contents) to be transferred to W subject to mortgage</li>  <li>Spousal maintenance at £700 pcm until child’s 18th birthday or completion of secondary education (global figure including CMS £1,360 pcm)</li>  <li>Cost order made by way of a pension sharing order, based on the limited amount of capital available against which W could enforce a costs order. This was expressed as follows in the order: “There is no order as to costs save that the court made a 100% pension sharing order over H’s Vanguard pension and has required H to pay promptly any costs of implementation in order to satisfy the costs liability.” (it later became apparent that the Vanguard pension was not illiquid, and the costs order was therefore amended to provide for 75% of the pension fund to be paid to W within 21 days).</li> </ul>  Useful takeaways from this case:  This is the first reported case that deals with the involvement of a Qualified Legal Representative. Recorder Taylor acknowledged the difficulties that this role entails, not least the fact that a QLR is not entitled to see the bundle in advance and cannot therefore make a judgment as to whether the case is within their competence. It is an extremely well-structured judgment with hyperlinks which enable the reader to jump straight to the relevant issue. The court held that W was entitled to a significant departure from equality on the basis of her needs. He quoted the recent judgment of Moor J in Butler v Butler [2023] EWHC 2453 (Fam) where he had stated that in a needs case the court does not necessarily need to make an order that meets both parties’ needs. The Recorder was unimpressed with H’s evidence and his lack of disclosure. He concluded that H would have to rent somewhere and commented at paragraph 148: “if this feels like rough justice, H only has himself to blame. He has the beneficial ownership of an undisclosed sum of money somewhere”.  JN v GN [2023] EWFC 244  <a href="https://www.bailii.org/ew/cases/EWFC/OJ/2023/244.html">https://www.bailii.org/ew/cases/EWFC/OJ/2023/244.html</a>  DJ Hatvany sitting at the FRC in Swindon, 21 November 2023  Core facts:  W aged 60 (continued to live in the FMH); H aged 62 (lived with partner in social housing with secured tenancy)  23-year marriage with one adult child  Assets:  FMH with equity of £224,500  H’s inheritance £468,000 + £30,000 for a painting (dissipated)  H was also alleged to have dissipated £28,000 endowment policy and £56,000 cashed-in pension  Modest pension provisions  Parties’ positions:  <ul> <li>W sought a transfer of the FMH into her name and H to clear the outstanding mortgage, as well as a cost order</li>  <li>H agreed that W should retain the FMH but did not agree to repay the mortgage</li> </ul>  Outcome:  <ul> <li>FMH transferred to W</li>  <li>W to retain responsibility to repay the mortgage</li>  <li>Departure from equality justified on the basis of H’s spending</li>  <li>Clean break</li>  <li>H to pay £10,000 towards W’s costs (£350 pcm due to lack of resources) due to litigation conduct</li> </ul>  Useful takeaways from this case:  District Judge Hatavny took a very pragmatic approach when confronted with a limited asset base and significant non-compliance as well as financial misconduct on H’s part. He ensured that W’s housing needs were met (taking into account her health issues) whilst acknowledging that it would be unfair to require H to repay the mortgage. The approach taken by the judge on costs is also worth of note and it is hoped that it can be replicated; in the vast majority of low-asset cases, there are usually no resources left to pay for a cost order (within 14 days or at all) and this appears to sometimes discourage courts from entertaining cost applications. However, a cost order in a low-value case can go a long way and this instalment-based approach is to be given serious consideration.  Ditchfield v Ditchfield [2023] EWHC 2303 (Fam)  <a href="https://www.bailii.org/ew/cases/EWHC/Fam/2023/2303.html">https://www.bailii.org/ew/cases/EWHC/Fam/2023/2303.html</a>  Peel J on appeal from a decision of Mr Recorder Samuels KC, 20 September 2023  Core facts:  W aged 55, H aged 49  15-year marriage with two minor children aged 17 and 13  Assets:  Property 1 £110,000 net equity  Property 2 £110,000 net equity  Rent in bank account £41,000  Combined business interests about £270,000 net  H’s pension £43,000  W’s debts £40,000  H’s debts £85,000  Outcome of the appeal:  <ul> <li>The judge at first instance had operated a departure from equality, 62/38 in W’s favour and made findings against H in respect of deficient disclosure, manipulative approach to litigation and deliberate downplaying of resources;</li>  <li>The appeal was dismissed on all 6 grounds;</li>  <li>Two amendments were made to the substantive order, namely that a provision giving a specified timeframe for H to repay his sister a soft loan was deleted, and a s 28(1A) provision was added.</li> </ul>  Useful takeaways from this case:  This case highlights the difficulties that parties face when appealing findings of fact. The judge at first instance had been satisfied that, even if H’s share was less readily realisable, it was nonetheless sustainable, and he had only himself to blame for the judge’s adverse findings.  Of particular interest is Peel J’s rejection of H’s criticism of the first instance court’s treatment of the available resources with reference to the parties’ housing needs. Mr Recorder Samuels KC had found that H would need time to rebuild his resources so as to buy a property and, with his earning potential, he would be able to do so. Peel J commented at para 39: “although it is generally desirable in financial remedy cases for each party to be able to own a property, with the attendant benefits of security and potential investment upside, it is not an iron rule. It will all depend on the facts. In this case it is not possible to do so at this stage.”  Butler v Butler [2023] EWHC 2453 (Fam)  <a href="https://www.bailii.org/ew/cases/EWHC/Fam/2023/2453.html">https://www.bailii.org/ew/cases/EWHC/Fam/2023/2453.html</a>  Moor J on appeal from a decision of Recorder Anderson, 24 August 2023  Core facts:  W aged 53 (lived in rental accommodation), H aged 64 (lived in owned property)  Six-year relationship, one child aged 16  Assets:  Property purchased by H £410,000 equity  Land in Jamaica owned by W £16,000  H’s small pension in payment  Both parties had debts  Outcome of the appeal:  <ul> <li>Recorder Anderson had ordered H to pay a lump sum of £58,000 to W and a clean break.</li>  <li>The appeal was a dismissed on the basis that the Recorder was entitled to make the order that he did; the lump sum ordered would enable W to clear her debts and there were no circumstances in which W would be able to purchase her own property.</li> </ul>  Useful takeaways from this case:  The unusual feature of this case is that the parties’ marriage had been in name only from 2009, despite the divorce petition being dated March 2020. Therefore, the property where H was residing was non-matrimonial, having been acquired post-separation. The appeal court did not interfere with the decision of the Recorder, accepting that he was entitled to reject an outcome which would have rendered H homeless. Moor J’s comment at para 39 will no doubt feature in many position statements and skeleton arguments moving forward: “The fact that a judge rightly concludes that a case is a "needs" case does not mean that the judge must then make an order that satisfies both parties' needs. In one sense, this is obvious, because there may simply be insufficient assets to satisfy the needs of either party, let alone both.” Moor J goes on to say that “the court cannot simply apply needs as the only consideration”, and it must in fact consider all factors under s25 MCA. Moor J found that the Recorder was entitled to reject making an order that would make H homeless, particularly in light of the non-matrimonial nature of the main asset.  As a side note, Moor J’s initial comments on the litigation costs, congratulating the lawyers for “the sensible and economic way in which the matter has been litigated”, make a welcome change from the stark criticism made by the higher courts on the disproportionate nature of the litigation costs incurred.  Conclusion  It is hoped that the extension of the transparency pilot to financial remedy cases will lead to more widespread reporting of low-modest asset cases. These are certainly the cases that lead legal representatives to scratch their heads, not to mention the pressure on mounting legal costs when the parties can barely afford it.

Inquest Costs: Separately Recoverable under the Fixed Recoverable Costs Regime

The Ministry of Justice (MoJ) has responded to the July 2023 consultation confirming that the costs of inquest proceedings will be recoverable separately, and the change will be inserted at CPR 45.1 (9) and come into force on 6 April 2024.  In the consultation, which opened on 21 July 2023 and closed on 8 September, the MoJ had indicated a provisional view that the costs of inquests should be separately recoverable to the FRC, and subject to assessment, if these costs were reasonable and proportionate. And in making the rule change, the MoJ has confirmed that inquest costs should only be recoverable to the extent that they would be anyway, outside of FRC.  The consultation highlighted recognition by the MoJ that as part of any proper investigation process, an inquest will typically pre-date, and may (to an extent at least) enable the litigation.  In the multi-track, where FRC will not apply, the costs involved in an inquest can be recoverable.  The MoJ also acknowledged as part of the consultation that without the addition of a new rule in the CPR to provide for the separate recoverability of inquest costs in FRC cases, that the level of costs involved in the inquest would make the pursuit of any claim for compensation uneconomic.  There were 74 responses to the consultation, which included a joint response from the Bar Council and the Personal Injuries Bar Association (PIBA). With the addition of this new rule for inquest costs, there appears to be recognition by the MOJ of the position outlined in the joint response from the Bar Council and PIBA that:  <ul> <li>Inquests are an integral part of the process for investigating unnatural deaths and will inform and facilitate decisions taken about civil proceedings.</li>  <li>It would be wrong to be overly prescriptive in defining the cases when inquests costs ought to be recoverable. Those claims that may be made following an inquest are not limited to claims for dependency under the Fatal Accidents Act 1976. There will be claims on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934; and accidents involving fatalities which found claims for family and non-family members for psychiatric injury as primary and secondary victims. Claims involving the deaths of children and young adults can be complex, but the damages recoverable can be limited to the levels set out in the Fast and Intermediate tracks.</li>  <li>Many cases involving inquests will be complex. There will be some cases when the facts of an inquest greatly assist the determination of civil liability, and admissions may be made, and judgment entered. These cases may be suitable for the Intermediate Track as a result. It is important that the CPR allow for inquest costs to be recovered in these circumstances.</li> </ul>  The addition of the new rule to allow the costs of inquests proceedings to be recovered separately clearly addresses the wide concern shared by many, including the MoJ, that the FRC rules as previously drafted may have impeded solicitors’ ability to pursue claims, and therefore may have impacted on the future ability of bereaved families to obtain representation unless they were able to fund this, wholly or in part, themselves. The new rule will therefore be seen as a positive step for access to representation in the inquest process.  Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Inquests and Inquiries. Leila’s full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>

Inadequate Triage and Missed Opportunities for Assessment at Hospital: Woman’s death caused by severe pain hours after hospital discharge

<a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> represented the family of a 63-year-old lady who suffered an acute cardiac arrhythmia due to severe pain hours after she had been discharged from hospital in May 2022.  The deceased, a former fitness instructor with a medical history of osteoarthritis to her right hip, had awoken with extreme pain to her right hip and required Entonox and intravenous morphine prior to transfer to hospital by ambulance.  It was held at the inquest that the triage within the emergency department was inadequate, did not include a pain score or pull through significant information onto the hospital records, including the opiate analgesia prescribed by the paramedics. It was also held that there was an under-triage of the deceased’s condition, and it was appropriate for the deceased to be admitted for a mobility assessment prior to discharge which did not occur.  It was found that the death was due to a cardiac arrhythmia caused by acute adrenaline excess, as a result of the severe pain the deceased was experiencing to her right hip.  A narrative conclusion was recorded at the inquest in which it was held that there was an inadequate triage and missed opportunities for assessment at hospital.  Leila was instructed by Victoria Wanless at <a href="https://www.beechampeacock.co.uk/">Beacham Peacock Solicitors</a>.  Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as Band 1 by Legal 500 for Inquests and Inquiries. Leila has been appointed to the Attorney General’s Treasury Counsel Panel A since 2010. Leila is appointed as Assistant Coroner for Gateshead and South Tyneside. Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>.

Parklane Plowden Podcast – Analysing 2023 in children’s family law and what it means for 2024

Listen to Parklane Plowden’s latest PLP Podcast – Analysing 2023 in children’s family law and what it means for 2024.  Last year saw a series of case law decisions that will impact practitioners in 2024.  Parklane Plowden children’s family law barrister <a href="https://www.parklaneplowden.co.uk/our-barristers/maxine-best/">Maxine Best</a> is joined by fellow PLP family barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/naakesha-michl/">Naakesha Michl</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sara-anning/">Sara Anning</a>, who also sits as a recorder, to discuss 2023’s children’s family case law decision highlights.  Together, they discuss case law decisions impacting practitioners in areas such as Section 20 orders under the Children’s Act; procedural fairness; habitual residence; finding of fact hearings where adult harm is involved; and the placement of children under care orders.   The three also consider key trends and issues practitioners need to be aware of throughout 2024.  Listen to the podcast below.  Helpful resources and further reading:  Section 20  05.01.2023 - Re S (A Child) and Re W (A Child) (s 20 Accommodation) [2023] EWCA Civ - <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2023/1.html">https://www.bailii.org/ew/cases/EWCA/Civ/2023/1.html</a>  Williams v Hackney (as referenced on the podcast) - <a href="https://www.supremecourt.uk/cases/docs/uksc-2017-0037-judgment.pdf">https://www.supremecourt.uk/cases/docs/uksc-2017-0037-judgment.pdf</a>  Procedural Fairness  28.02.2023 - Re P (Fair Hearing) [2023] EWCA Civ 215 - https://<a href="http://www.bailii.org/ew/cases/EWCA/Civ/2023/215.html">www.bailii.org/ew/cases/EWCA/Civ/2023/215.html</a>   Habitual Residence  12.06.2023 - Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659 - <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2023/659.html&query=(EWCA)+AND+(Civ)+AND+(659)">https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2023/659.html&query=(EWCA)+AND+(Civ)+AND+(659)</a>   19.10.2023 - Re London Borough of Hackney v P and Others  (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 - <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2023/1213.html">https://www.bailii.org/ew/cases/EWCA/Civ/2023/1213.html</a>   Sexual harm allegations between parents  07.03.2023 - Re A, B and C [2023] EWCA Civ 360 - https://<a href="http://www.judiciary.uk/wp-content/uploads/2023/04/A-B-and-C-Judgment.pdf">www.judiciary.uk/wp-content/uploads/2023/04/A-B-and-C-Judgment.pdf</a>  Care Orders at home  04.08.2023 - JW (Child at Home under Care Order) [2023] EWCA Civ 944 - <a href="https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf">https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf</a>   Supervision Orders  Public Law Working Group Supervision Orders - <a href="https://www.judiciary.uk/guidance-and-resources/publication-of-the-public-law-working-group-supervision-order-report-and-webinar-today-24-april-2023/">https://www.judiciary.uk/guidance-and-resources/publication-of-the-public-law-working-group-supervision-order-report-and-webinar-today-24-april-2023/</a>   Threshold Compliance  Re A [2015] EWFC 11 - <a href="https://www.judiciary.uk/wp-content/uploads/2015/02/re-a-child-2.pdf">https://www.judiciary.uk/wp-content/uploads/2015/02/re-a-child-2.pdf</a>   Drafting Orders  Lucy Sowden’s article on standard forms of order - <a href="https://www.parklaneplowden.co.uk/new-rules-for-standard-family-orders-public-law/">https://www.parklaneplowden.co.uk/new-rules-for-standard-family-orders-public-law/</a>

Latest News

Event

24 June 2025

North Eastern Circuit Women’s Forum Event in Newcastle – Women at the Bar and the Bench

Read time: < 1 m

News

24 June 2025

Cookie	Duration	Description
cookielawinfo-checkbox-analytics	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional	11 months	The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy	11 months	The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.

Your Shortlist (0)

Our Expertise

Mike Stubbs Funeral &#8211; Friday 16 February 2024