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Richard Harrington appears in the High Court on the first case to involve a change of both forename and surname in relation to a looked after child

It may be a surprise to many practitioners that until the decision of Re BC (Child in Care: Change of Forename and Surname) [2024] EWHC 1639 (Fam) there have been no reported cases concerning an application made by a looked after child to change both their forename and surname. In fact, this was the very first reported case to consider the principle of a child wanting to change both of their respective names.   Background   The child, BC, is a Gillick competent 15-year-old girl who was made subject to a care order on 22 June 2022. During care proceedings, serious findings were made, including that BC’s father had raped her and sexually assaulted her. Criminal proceedings remain ongoing, and father begins his trial later this year. Mother does not accept the findings made against father.   BC confirmed that since November 2021, she has wanted to change her name due to both names having a strong association with her father and the considerable trauma she suffers when she is called BC; the proposed name chosen by BC is well-considered and non-controversial. Despite mother not accepting the findings made, BC continued to have supervised contact with her mother and brothers; BC has remained keen for this relationship to continue and develop. Despite the wishes of BC, her mother opposed the application on the basis that BC should use her surname instead and that calling BC this name would make her feel that BC is not her daughter anymore.   The Local Authority opposed BC’s application. It was the position of the Local Authority that BC’s actions did not match her expressed wishes. The Local Authority made submissions that BC had not used her preferred name widely at school despite having numerous opportunities to do so, she voluntarily introduced herself as BC at her recent work experience placement, and she would not speak to professionals about her proposed change of name (save for her teachers). It was the case of the Local Authority that due to such hesitation and indecision, changing her name legally would risk causing further emotional harm to BC. The Local Authority submitted that there was a likelihood of her peers asking questions as to why she has changed her name and given BC has not been able to talk to professionals and her therapist about the harm inflicted by father, this may result in her feeling pressured to talk about the significant trauma she has suffered before she is ready to do so. The Local Authority was also concerned about the importance of BC having flexibility and control as to the situation, and the importance of BC having a relationship with her family. The Local Authority suggested there should be further therapeutic work undertaken with BC, BC should use her preferred name more widely at school first before considering to change her name legally, and she should await making such a significant decision until she turns 18.   Law   Section 33(7) of the Children Act 1989 (“CA”) confirms that while there is a care order in force, no persons can cause a child to be known by a new surname without either written consent of every person who has parental responsibility or the leave of the court; similar rules apply to children who are subject to a child arrangements order (section 13(1) CA 1989)  or a special guardianship order (section 14C(3) CA 1989). In contrast, a 16-year-old not subject to the aforementioned orders can change their name by unenrolled deed poll.   In relation to forenames, as confirmed by the recent decision of Re C (Change of Forename: Child in Care) [2023] EWHC 2813 (Fam) (“Re C”), to change a forename requires the court to invoke its inherent jurisdiction. Re C confirms the principles relating to change of forename and surname are the same and Re C provides guidance for the court to consider when faced with such applications.   As highlighted by Justice Poole at paragraph 32 of his Judgment, Re C concerned a very young child and Mr Justice Cobb noted that it will only be in rare or exceptional circumstances where the court would interfere with a forename chosen by a parent. Nevertheless, given BC was a Gillick-competent 15-year-old, Justice Poole questioned whether the approach set out in Re C should be different for older children who have capacity to make decisions for themselves.   The most relevant case in this matter was the Court of Appeal decision of Re S (Change of Surname) [1998] EWCA Civ 1950 (“Re S”) where an application was made by a 15-year-old to change her surname to her maternal surname following allegations made that her father had sexually abused her sister. In this matter, Thorpe LJ relied heavily on the wishes and feelings of the child wanting to change her name.   At paragraph 34, Justice Poole confirmed the following principles apply to an application made by a competent child in care to change their forename and/or surname:   i) The court’s paramount consideration is the child’s best interests.   ii) In assessing best interests, the wishes, feelings, needs and objectives of an applicant who is competent to make a decision about changing their name(s) should be given careful consideration.   iii) The motives and objectives of any family member who objects to the application will require careful scrutiny.   iv) Advice from a guardian will be valuable to the court.   v) The principles to be applied to a change of name are the same regardless of whether the change is to a forename or surname. If the application is to change both, then the implications will need to be considered accordingly.   vi) Regard should be had to the fact that at 18 the child will be free to change their name(s) without hinderance and that at 16 a child who is not in care or subject to a child arrangements order or special guardianship order is free to change their name by deed poll without the consent of any person with parental responsibility.   vii) The views of others and proposed carers are relevant only as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child.   viii) The name(s) chosen by the child’s parent(s) may link them to particular religious or cultural backgrounds which are of significance to the child’s identity.   It was also noted that the views of any Local Authority who have parental responsibility must be taken into account. Justice Poole confirmed that any application made by a child to change their forename should be made to the High Court.   Analysis and Conclusion   Justice Poole acknowledged the differences between Re S and the facts in this matter but on balance, determined that the court should follow the authority of Re S. Justice Poole confirmed the need to give very careful consideration to the wishes, feelings and objectives of BC. It was noted that BC was mature and that she would be entitled, if not subject to a care order, to change her name by deed poll at the age of 16. It was further of note that BC had been settled on her preferred name since 2021 and on such basis, the court rejected the suggestion that she was hesitant or indecisive about wanting to change her name.   It was determined by Justice Poole that BC had good reason for wanting to change her names and to be dissociated from her father. BC’s statement was regarded as being powerful, noting that she has given considerable thought as to the implications of this decision and she has consistently remained of the view that she wishes to change her names.   Justice Poole rejected the Local Authority’s submission that changing BC’s name would set back the ongoing re-building of the family relationship. BC was clear that she would permit the family to call her BC despite the impact it would have on her. While it was accepted that the family relationship may come under considerable strain during father’s criminal trial, the court determined that the change of name would not be a significant contributor to any strain on the relationship; rather the father’s conduct, the verdict and the sentence will be much more important.   In conclusion, Justice Poole provided the following remarks at paragraphs 61 and 62:   A change of forename and/or surname for a child is a serious decision whatever the age of the child. The court’s paramount consideration is the best interests of the child. The views of others, in particular of those with parental responsibility, are to be taken into account. The family’s views are relevant insofar as they may affect their conduct and attitude and therefore affect the welfare of the child. The views of the Local Authority, having parental responsibility in respect of a child in care, are of importance. The court must take into account the child’s competence to make the decision, their age and maturity, the steadfastness of their wish to change their names, and the reasons behind the wish to make the changes. The court should consider the choice of name(s) – are they frivolous or would they be liable to be detrimental to the welfare of the child because of their nature or associations? The court should have close regard to the impact on the child of allowing them to change their name(s) as well as the impact of refusing them leave to do so. In the case of an older child, the court can have regard to the fact that a 16 or 17 year old not in care and not subject to a relevant child arrangements order or special guardianship order, could change their name without consent or leave, as could any 18 year old. [61]   Having regard to the legal framework and all the evidence and circumstances in this case, I have little hesitation in allowing the application and in giving leave to BC to change her forename and surname so that she shall be known as JKL. I suggest that if she wishes to do so, once she is 16 years old, she should be assisted to change her name by unenrolled deed poll. My order gives her leave to do so. I give considerable weight to the settled wishes of a mature, competent 15 year old who has good reason to wish to change both her forename and surname, who has chosen sensible new names that are not frivolous or provocative or liable to be detrimental to her welfare in any way. I am content that she has thought through the decision and is aware of the significance of the changes proposed. I am confident that she will be well supported at school and in her foster placement in the change process, that she will enjoy psychological and emotional benefit from the changes, and that she would be liable to suffer psychological and emotional harm were her application to be refused. The Local Authority might consider funding further therapy to support her though the process of the name changes (and the pending trial of her father). I do not believe that her family relationships will be harmed by the proposed name changes. In my judgement it is clearly in BC’s best interests to allow this application. [62]   Richard Harrington acted for the Local Authority in this matter. Should you wish to instruct Richard, please contact his clerks on 0330 390 4303 or <a href="mailto:FamilyClerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">FamilyClerks@parklaneplowden.co.uk</a>.

Simon Wilkinson appears in two cases regarding vulnerable adults in the High Court and Court of Protection involving the use of the inherent jurisdiction and the appointment of a Health and Welfare Deputy

In Wakefield Metropolitan District Council v FH & Anor [2024] EWHC 830 (Fam) Simon represented the Health Trust in proceedings before Cobb J (as he was) in proceedings involving the inherent jurisdiction being invoked for protective orders for a vulnerable adult. The judgment summarises the key legal principles to be applied and gives a further example of when such orders will be made.   The judgment can be found here: <a href="https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/830?query=FH">https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/830?query=FH</a>   In AB v CD (By The Official Solicitor) & Anor [2024] EWCOP 32 Simon represented the local authority in linked proceedings in the Court of Protection. There were two applications for (1) an annual renewal of CD’s deprivation of liberty; and (2) a health and welfare application by CD’s mother. As part of his analysis of the orders which were in CD’s best interests HHJ Baddeley considered whether to appoint a deputy for CD’s health and welfare (the case advanced by the local authority). He considered the wealth of evidence including the clear recommendation of Christopher Wall (independent social worker) and concluded that this was “one of those rare cases in which it is in [P]’s best interests for a deputy to be appointed”.   The judgment can be found here: <a href="https://caselaw.nationalarchives.gov.uk/ewcop/2024/32">https://caselaw.nationalarchives.gov.uk/ewcop/2024/32</a>   Simon is an experienced Family law and Court of Protection barrister, recommended in both the Legal 500 and in Chambers & Partners over many years. He has a particular interest in cases involving a crossover between the jurisdictions.

Constructive knowledge of Neurodiversity – a reminder of the correct test to be applied

The EAT handed down its judgment in the case of Godfrey v Natwest Markets plc [2024] EAT 81 on 24 May 2024.   The EAT found that the ET had erred in applying a higher test when considering the employer’s constructive knowledge of a former employee’s disability.   The employee’s appeal was nevertheless dismissed in circumstances where the ET had gone on to consider the counterfactual. The ET had been entitled to find that the employee would have refused any investigations and, in turn, the employer could not reasonably have been expected to have knowledge of the employee’s disability.   Background:   The Claimant, Mr Godfrey was employed by the Respondent, Royal Bank of Scotland plc (subsequently NatWest Market plc) from August 2006 until his resignation in January 2011.   Between 2017 and 2019, he applied for a number of vacancies within the Respondent’s ‘Super Sovereign and Agency (SSA) Team’ and was unsuccessful.   He was formally diagnosed with Asperger's syndrome in 2018, although he contended that those who had worked with him would have been fully aware of his communication and social interaction difficulties and thus the Respondent had been aware of the relevant facts of his disability.   He brought claims of direct disability discrimination and discrimination arising from disability arising from the Respondent’s alleged failures to consider him for the relevant vacancies.   The Claimant was found to be a person with a disability by reason of his Asperger’s Syndrome, an autism spectrum condition, following a preliminary hearing in August 2020.   At a further preliminary hearing in February 2021, for the purposes of his s.15 claim, the Claimant asserted that the “something arising” in consequence of his disability was that he ‘needed quiet and space and would not engage in conversation or social interactions in the same way as others.’   The Respondent denied the claim asserting, amongst other grounds, that it had no knowledge of the Claimant’s disability.   A Ltd v Z<a href="#_ftn1" id="_ftnref1">[1]</a>:   Her Honour Judge Eady QC had explained, at paragraph 38 and 39 of A Ltd v Z that:   ‘38. A Respondent will avoid the liability that would have otherwise arise under section 15 EqA if it can show that it did not know, and could not reasonably have been expected to know, of the complainant’s disability. A finding that the Respondent does not have actual knowledge of the disability is thus not the end of the ET’s task; it must then go on to consider whether the Respondent had what (for shorthand) is commonly called “constructive knowledge”; that is whether it could – applying a test of reasonableness – have been expected to know, not necessarily the Claimant’s actual diagnosis, but of the facts that would demonstrate that she had a disability – that she was suffering a physical or mental impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.   39. As to what a Respondent could reasonably have been expected to know, that is a question for the ET to determine. The burden of proof is on the Respondent but the expectation is to be assessed in terms of what was reasonable; that, in turn, will depend on all the circumstances of the case.’   In Godfrey, it was common ground that the legal principles that should inform the ET’s approach to the determination of constructive knowledge were as summarised at paragraph 23 of A Ltd v Z:   (1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39.   (2)  The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of section 15(2) ; it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long- term effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J.   (3)  The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.   (4)  When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610 , per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052 ), and (ii) because, without knowing the likely cause of a given impairment, " it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so] ", per Langstaff P in Donelien EAT at paragraph 31.   (5)  The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code , which (relevantly) provides as follows:   "5.14  It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'.   5.15  An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially."   (6)  It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; SoS for Work and Pensions v Alam [2010] ICR 665 ).   (7)  Reasonableness, for the purposes of section 15(2) , must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code .   ET decision:   The ET observed that it had limited evidence of the Claimant’s impairment whilst working for the Respondent:   It noted that the Claimant, in his particulars of claim “describes being confronted with severe challenges when interacting with and communicating with others, particularly where he feels overwhelmed or perceives a hostile environment” (ET paragraph 18).   However, he gave no detail of any such challenges in the workplace whilst employed by the Respondent.   Similarly, the ET noted that in his witness statement, he suggested that he “might be less fun on the desk, at times need space and quiet (especially when considering [his] portfolio) and often took breaks from [his] desk to do so, and would not engage in conservation or social interactions in the same way as others.” (ibid)   Again, however, no detail was added.   The ET observed that ‘While, according to the Code and the principles in A Limited, it is for the Respondent to show that it did not have knowledge rather than for the Claimant to show that it did, the Respondent clearly could not have called everyone who worked with the Claimant between 2006 and 2011. The Claimant needed to give some context for the Respondent to know where to start.’ (ET paragraph 20)   In his claim form, the Claimant had made reference to a manager who had commented that there was a perceived issue with the Claimant’s ability to socially integrate and another manager who had told him that that year’s bonus would have been double if he was easier to converse with. (ET paragraph 21)   He had also referred to an executive assistant who had told him he needed somebody to look after him and that he was strange and further, two peers from the 2006 graduate programme, one of whom had said “the way your brain operates is very strange” and the other had told the Claimant “you are (very) weird.” (ET paragraph 22)   The Claimant had not elaborated on this in his statement, had not named the individuals referred to nor did he put the comments in context.   In his claim form he stated that, although he had only become aware of the impact of his condition since the diagnosis, those who sat around him in the workplace would have been aware of the daily communication and social interaction problem. However, he did not name any of these colleagues.   Whilst, in his oral evidence, the Claimant did name names, he had not referred to these individuals in his witness statement and he had not sought to call them to give evidence.   In his statement, he had stated that the condition led to some colleagues describing him as ‘psychotic’, ‘very strange<a>’</a>, ‘mad’, ‘bizarre’ and ‘extremely odd’ but he had not ascribed these comments to any one person or persons.   The ET did attempt, during the Claimant’s evidence, to elicit some context from him in respect of the specific comments he had referred to in his statement, however the Claimant was only able to provide two examples.   In terms of witness evidence, the Claimant relied on a short, signed witness statement from one of his former managers at the Respondent (having intended to call him). The statement contained no specifics regarding the impairments noted or adjustments made whilst working with the Claimant.   The ET also heard from two witnesses for the Claimant; one a university friend and one a former employee of the Respondent who had not worked with the Claimant whilst they were both employed by the Respondent but had worked with the Claimant subsequently at another company.   Having heard the evidence, the ET considered that the working hours and pressures that the Claimant was subject to at this company were much greater than those at the Respondent and as such it could not be concluded that his behaviour would have been replicated at his earlier employment with the Respondent.   The Respondent’s only witness had worked on the same trading desk as Mr Godfrey between 2008 and 2011 and it was his evidence that the Claimant did not stand out.   The ET also had regard to the documentary evidence that was available from the time of the Claimant’s employment with the Respondent.   The ET found, unanimously, that the Respondent had no actual knowledge of the Claimant’s disability.   In respect of constructive knowledge, the ET found by majority decision that the Respondent could not reasonably have known of the Claimant’s disability.   The ET did, importantly, and in line with A Ltd v Z, go on to ask itself:   ‘52. . . . what the outcome might have been if management or HR personnel at the Respondent had observed the Claimant’s differences, taken more account of them and realised that they might be the result of a mental impairment or autistic spectrum disorder . . ..’   And found, by a majority decision that:   ‘54. . . . there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. It would be unreasonable to expect an employer without such training to do so, given that Mr Hammacher, who has known the Claimant for many years and observed him in social situations where his behaviours manifested themselves, and who is medically qualified, not to have done so.’   And   ‘74. . . . There was no ‘trigger event’ while the Claimant worked at the Respondent that would have caused its managers to make the referral, which the majority considers the Claimant would have resisted. The authorities confirm that it is not incumbent on an employer to make every enquiry when there is little or no basis to do so.’   EAT Decision:   Following a rule 3(10) hearing, the Claimant’s appeal proceeded on the single ground that the ET had failed to apply the correct legal test; focusing on the particular diagnosis of his disability rather than the question of the Respondent’s knowledge (actual or constructive) of the relevant factual features of that disability.   For the Claimant, it was argued that the ET had focused on whether the Respondent had knowledge of the Claimant’s diagnosis and not on the salient ingredients of s.6 EqA and had thus applied the wrong test throughout, citing the ET’s references to the diagnosis of the Claimant’s disability within its reasoning:   <ul> <li>ET paragraph 44: ‘. . .this would not be sufficiently unusual, . . . to alert an employer to the fact that an employee is a person with Asperger’s or to make enquiries about an autistic spectrum disorder.’</li>   <li>ET paragraph 45: ‘we do not find that an employee being sensitive would lead an employer to consider that they had Asperger’s . . . it does not lead us to the conclusion that Mr Muscatt found or should have considered the Claimant’s behaviour to be consistent with Asperger’s.’</li>   <li>ET paragraph 54: ‘. . . the majority of the panel concluded that there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. . ..’</li>   <li>ET paragraph 66: ‘. . . There is also evidence that Mr Balax really listened to or took in what the Claimant was telling him about his diagnosis. . ..’</li>   <li>ET paragraph 68: ‘. . . On the . . . balance of probabilities however the majority finds that they were not aware of his Asperger’s and nor would it have been reasonable to expect them to be.’</li> </ul>   For the Respondent, it was argued that the ET had reminded itself of the correct test as laid down in A Ltd v Zand had applied it when considering the Claimant’s behaviours and all the evidence that might assist in determining how matters might have appeared to the Respondent.   It was acknowledged that the wording of the ET’s reasoning went ‘a little further than it ought’ (an example being ET paragraph 54 as set out above) but this didn’t detract from the reasoned consideration given elsewhere which focused on knowledge of the factual features rather than knowledge of the disability itself.   Counsel for the Respondent contended that ‘it was of note that there was no evidence before the ET that went to knowledge of impact on day-to-day activities, or long-term nature, or of any impairment being more than merely transient’ (EAT paragraph 44).   It was argued for the Respondent that references to the Claimant’s diagnosis was plainly just a convenient shorthand.   Having noted that the ET had reminded itself of the correct legal test, the Honourable Mrs Justice Eady DBE (P) also noted that:   ‘49. ...Consistent with the legal test it was required to apply, the ET carried out a detailed assessment of all the evidence available to see what would (or should) have been known by the respondent about how the claimant might have been affected by his disability. That its analysis reached back to 2006, notwithstanding that the claimant had no diagnosis of his condition until 2018, supports the view that the ET understood that it was concerned with the respondent’s knowledge (actual of constructive) of the facts constituting the claimant’s disability rather than the particular label that was to be attached to that disability upon its eventual diagnosis’. [additional emphasis added].   Thus Mrs Justice Eady found it tempting to adopt the Respondent’s approach to the passages relied upon by the Claimant ‘. . . as effectively using the diagnosis of the claimant’s disability as a shorthand for a finding that the requisite constituent facts – the existence of a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks – were not, and could not reasonably have been, known to the respondent. . . . the scope of the enquiry was certainly consistent with a focus on the manifestation (is any) or an impairment . . .’ (EAT paragraph 54).   However, Mrs Justice Eady, went on to find that ‘. . . the reasoning at no stage expressly answers the specific questions the ET was required to determine; namely: whether the respondent had demonstrated that it did not know, and could not reasonably have known, that the claimant suffered a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks’ (EAT paragraph 55).   ‘the difficulty, however, is that the language used in the majority’s reasoning suggested that it reached that decision by imposing a requirement that the respondent had been put on notice that the claimant might have suffered from an autistic spectrum disorder. Contrary to the legal test it had earlier referenced, the ET majority’s reasoning at (for example) paragraphs 44 and 54 of the decision is focused on whether the respondent might reasonably have been put on notice of the particular medical diagnosis, rather than the question whether it might reasonably have been alerted to the need to make further enquiry about, more generally, the possible effects of some mental impairment.’ (EAT paragraph 59)   Accordingly, and notwithstanding the Respondent’s argument that this was just convenient shorthand, the EAT could not be satisfied, from the language used, that the ET in fact applied to the correct legal test.   However, as the ET had nevertheless gone on to consider the counterfactual; namely, what would have happened if the respondent had attempted to further investigate the cause of the Claimant’s behaviours and had found, on the evidence, that the Claimant would have resisted such attempts, (a finding against which there had been no challenge), the ET was entitled to find that the Respondent could not reasonably have been expected to have knowledge of the Claimant’s disability.   The Claimant’s appeal was therefore dismissed.   Suggested takeaways and practical considerations:   <ul> <li>This decision is, of course, fact sensitive concerning an employee whose interpersonal skills were not considered to fall short of what his employee expected and thus there was no need for it to attempt further investigations into his mental health. Nonetheless, employers need to be alert to the possibility of cases where an employee’s disability is not self-evident and may only become evident in certain situations or in relation to certain duties. Employers need also to be particularly alive to the possibility of cases where the employee themselves is not fully aware of their disability or perhaps may not consider themselves to be ‘disabled.’</li>   <li>The decision should not be read as meaning employers shouldn’t consider their employees behaviours and consider whether further investigations or referrals should be explored.</li>   <li>Whilst, in Godfrey the ET did not go on to consider further the reasons why the Respondent did not invite the Claimant to interview, they observed that its recruitment process was contrary to the Code of Practice and the lack of documented procedures and transparent competencies would likely lead some to believe that it is a protected characteristic which has led to their not being progressed and as such invite claims which may be challenging to defend.</li>   <li>These observations serve as a warning to ensure that recruitment processes, from advertisement to selection for interview, are transparent and clearly documented.</li> </ul>     <hr class="wp-block-separator has-alpha-channel-opacity"/>   <a href="#_ftnref1" id="_ftn1">[1]</a> UKEAT/0273/18/BA

At a glance: How will the general election impact employment law?

We now have the key party manifestos, with varying priority given to proposals on employment law reform and detail to prepare employers. Regardless of which party gains power from 4th July, there are likely to be plenty of changes to look out for.   Labour   Emphasising that it is time for change, in May 2024 the Labour Party published ‘Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People’, promising new legislation within 100 days of entering government.<a href="#_ftn1" id="_ftnref1">[1]</a>   The most significant proposed reforms are:   <ul> <li>Extend the current time limit for raising a claim from three to six months for all claims</li>   <li>Ensure the minimum wage is a real living wage, removing age bands and ensuring the Single Enforcement Body and HMRC can enforce non-compliance</li>   <li>Strengthen statutory sick pay, removing the lower earnings limit</li>   <li>End “one-sided flexibility” by banning ‘zero-hour’ contracts, introducing rights to regular hours based on hours worked on a 12-week reference period</li>   <li>Ending ‘fire and rehire’ practices by reforming the law to provide effective remedies against abuse</li>   <li>Increase day 1 employment rights for all workers, including protection against unfair dismissal, parental leave and sick pay</li>   <li>Create a single status of a worker and a simpler two-part framework for employment status</li>   <li>Strengthen redundancy rights and protections and those for workers subject to TUPE processes</li>   <li>Strengthen protection for whistleblowers, including by updating protection for women who report sexual harassment at work</li>   <li>Strengthen rights and protections for self-employed people</li>   <li>Have a baseline set of family-friendly rights including flexible working and parental rights</li>   <li>Make it unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances</li>   <li>Review the new legislation for unpaid carers’ leave which was introduced in April 2024 and examine the benefits of introducing paid carers’ leave</li>   <li>Introduce the right to bereavement leave for all workers</li>   <li>Bring in the ‘right to switch off’ – following similar models for working from home as are in place in Ireland and Belgium</li>   <li>Regulate AI, introducing surveillance technologies at a minimum to consult with trade unions or elected staff representatives</li>   <li>Implement the ability of employees to lodge collective grievances through ACAS</li>   <li>Introduce Fair Pay Agreements and repeal many anti-strike laws.</li> </ul>   Conservatives   Devoid of a specific section for employment law in the Conservative Party Manifesto, there are a few relevant proposals for new areas of reform:<a href="#_ftn2" id="_ftnref2">[2]</a>   <ul> <li>A bid to protect female-only spaces and competitiveness in sport by changing the definition of ‘sex’ in The Equality Act 2010 to ‘biological sex’</li>   <li>Cut employees’ national insurance to 6% by April 2027</li>   <li>Limit the impact of industrial action by implementing Minimum Service Levels legislation</li>   <li>Overhaul the ‘fit note’ process by moving the responsibility from GPs towards specialist work and health professionals</li>   <li>Abolish national insurance for self-employed people entirely</li>   <li>Retain the two-year qualifying period for unfair dismissal</li>   <li>Reintroduce tribunal fees</li>   <li>Cap the duration of non-compete clauses in employment contracts</li>   <li>Implement the Workers (Predictable Terms and Conditions) Act 2023</li>   <li>Restrict transfer rights under TUPE to employees only.</li> </ul>   Liberal Democrats   In the Liberal Democrats Manifesto ‘For a Fair Deal’, they promise to modernise employment rights to make them fit for the age of the ‘gig economy’, including:<a href="#_ftn3" id="_ftnref3">[3]</a>   <ul> <li>Introduce ‘Adjustment Passports’ to record the adjustments, modifications and equipment disabled people have received, and ensure that Access to Work support and equipment stays with the person if they change job</li>   <li>Increase the minimum wage for people on zero-hour contracts by 20%</li>   <li>A right to request a fixed-hours contract after 12 months for ‘zero-hour’ and agency workers</li>   <li>Shift the burden of proof in employment tribunals regarding employment status from individual to employer</li>   <li>Establish a new ‘dependent contractor’ employment status in between employment and self-employment – with entitlement to basic rights like sick pay, holiday entitlement and minimum earnings levels</li>   <li>Make parental leave and pay, day-one rights</li>   <li>Introduce a new protected characteristic of ‘caring’ under the Equality Act</li>   <li>Require large employers to monitor and publish data on gender, ethnicity, disability, and LGBT+ employment levels, pay gaps and progression and publish five-year aspirational diversity targets</li>   <li>Extend the use of name-blind recruitment processes</li>   <li>Introduce SSP from day one</li>   <li>Remove the lower earnings limit</li> </ul>   to name a few…   Reform UK   Marketed as a ‘Contract’ rather than a party manifesto, Reform UK have set out their proposals for the first 100 days following the general election and thereafter.<a href="#_ftn4" id="_ftnref4">[4]</a> Despite various economic and benefits reforms, there are very few notable employment law proposals and each is broad and lacking in detail:   <ul> <li>Replace the Equality Act 2010</li>   <li>Scrap EU Regulations</li>   <li>Scrap thousands of laws that hold back British business and damage productivity, including employment laws that make it riskier to hire people</li>   <li>Abolish IR35.</li> </ul>   Green Party   In a pledge for ‘Real Hope. Real Change’, the Green Party have pledged a number of significant employment reforms:<a href="#_ftn5" id="_ftnref5">[5]</a>   <ul> <li>Pay-gap protections to be extended to all protected characteristics</li>   <li>Repeal “anti-union” legislation and replace it with a Charter of Workers’ Rights – including a legal obligation for employers to recognise trade unions</li>   <li>£15 per hour national minimum wage for all ages, offsetting costs to small businesses by increasing the Employment Allowance to £10,000</li>   <li>Four-day working week</li>   <li>Day one rights for all – including those on ‘zero-hour’ contracts and working in the ‘gig economy’</li>   <li>Fund the enforcement of rights</li>   <li>Maximum 10:1 pay ratios for all private and public-sector organisations</li>   <li>Equal pay audits for all large and medium-sized companies</li>   <li>Campaign for safe sick pay.</li> </ul>   Although details of the practicality of proposals are absent from the manifestos at this stage, we now have a flavour of what the future of employment law could look like. Current polls suggest Labour will form our new government. Labour’s proposals set out an ambitious agenda to implement significant change at great speed. If Labour manages to achieve its objectives, particularly with respect to the extension of time limits to present a claim and the introduction of day-one rights, this is likely to place even greater pressure on the Employment Tribunal backlog. Whether this is matched by funding for the tribunal system remains to be seen…   <hr class="wp-block-separator has-alpha-channel-opacity"/>   <a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://labour.org.uk/updates/stories/a-new-deal-for-working-people/#:~:text=Labour's%20plan%20to%20make%20work%20pay%20will%20ensure%20more%20people,resilience%20and%20conditions%20for%20innovation">Labour Party Employment Law Plan</a>   <a href="#_ftnref2" id="_ftn2">[2]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Conservative%20Party%20Manifesto">Conservative Party Manifesto</a>   <a href="#_ftnref3" id="_ftn3">[3]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Liberal%20Democrats%20Manifesto">Liberal Democrats Manifesto</a>   <a href="#_ftnref4" id="_ftn4">[4]</a><a href="file:///Users/isabellabrunton/Documents/PLP/Reform's%20'Contract%20with%20you'">Reform's 'Contract with you'</a>   <a href="#_ftnref5" id="_ftn5">[5]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Green%20Party%20Manifesto">Green Party Manifesto</a>

Partnership Property

These are the notes from the seminar and workshop provided by Sean Kelly and Cait Sweeney to the Property Bar Association on 30th April 2024.   1.         It is often thought that partnership claims revolve around issue of expulsion and the mechanics of winding-up. However, in most cases the major issues which have a monetary value concern the ownership of assets (and in particular land) used by or generated by the partnership. This will be the case whether the partnership is to be wound-up by the Court or the interest of a departing partner is to be bought under the terms of a partnership agreement. It would be rare for a partnership agreement to deal with land which is not partnership property.   2.         In relation to land used by a partnership, the issues to be considered are (in order) as follows:                           1)         Is the land partnership property?                           2)         Is the land held at a joint tenancy or tenancy in common outside the partnership?   Partnership property               1) The nature of partnership property   3.         Section 20(1) of the Partnership Act 1890 ("the Act") provides as follows:   "All property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement."   4.         No partner has any interest in specie in partnership property. Rather, each partner has an interest in the net balance of the assets and liabilities of the partnership as manifested in the capital account (see Popat v Shonchhatra [1997] CA, 1 WLR 1367). Accordingly, partnership property is something distinct from property held:               1)         By one partner beneficially               2)         By some or all of the partners as beneficial joint tenants               3)         By some or all of the partners as beneficial tenants in common               4)         Under some other specific trust arrangement.               Partnership property is to be applied for the business of the partnership while trading and, following dissolution, it is available to meet the demands of creditors (under section 39 of the Act) with the ultimate surplus to be distributed between the partners in accordance with the partnership agreement.               2) The significance of partnership property in winding-up   5.         The significance of partnership property is tied-up with the manner in which accounts of a partnership are produced.   6.         In the context of partnership law, "capital" is a sum of money which is invested by a partner in the business of the partnership on the basis that the same is not to be returned until dissolution (or ceasing to be a partner in a joint lives partnership). It is similar to the concept of capital in a limited company or an LLP. An "advance" is a sum of money which is loaned to the partnership which is expected to be repaid. At least as a matter of law the two are different and such difference is accepted by the order of priority of payments set out in section 44 of the Act.   7.         Income profits arise out of the usual trading of a partnership. Capital profits arise from the sale of partnership property otherwise than as a result of normal trading such as the sale of the land from which it trades. Capital profits follow income profits save where the contrary is agreed expressly (which would be rare). Each is dealt with differently following dissolution.   8.         On dissolution, the right of the departing partner to income profits ends. However, the departing partner can claim under section 42 of the Act either interest at 5% per annum on the value of his share in the partnership or the profit generated thereby. This is the “net” share, so that if the capital account of the departing partner is in deficit, he can not claim a section 42 account (see Sandhu v Gill [2006] Ch 456). The logical extrapolation from this decision is that the capital accounts of the partners have to be calculated to dissolution (using valuations if necessary) so that the departing partner’s claim to interest or profits can be quantified properly.   9.         Section 42 of the Act does not apply to capital profits. Partnership property remains such until it is sold. The value of any partnership property in the accounts of the partnership is merely an estimate (and often a historic value). The value crystalises on sale (whether to a third party or one of the partners). On sale, the value in the accounts is replaced by the sale price and the capital profit which arises is divided between the partners in the capital profit sharing ratios over the period involved. Where there has been a change in profit shares over a number of years, the allocation of capital profits will be difficult.   10.       A capital account in its strict sense is merely a statement of the amount of capital introduced by the partners. A current account in its strict sense is an account of what has happened since the partnership has commenced in terms of:               1)         Undrawn profits               2)         Advances made to the partnership               3)         Expenditure incurred by the partnership for individual partners.               In practice, it is rare to find accounts for a partnership which distinguish between capital accounts and current accounts in any way. The only general exception would be old farming partnerships. The usual capital account is a combined capital and current account where the total of the capital accounts of the partners equates to the net assets of the partnership. "Capital account" is normally used to refer to this combined account. Accordingly, it is possible (and indeed quite common) to have a negative balance on a partner's capital account.   11.       There is no Statement of Standard Accounting Practice (“SSAP”) for partnerships. Accordingly, there is no requirement to revalue partnership property and strong tax reasons for not doing so. Accordingly, partnership land is often included in accounts at extremely low historic cost and the capital profits on sale will need to be dealt with in winding-up.   12.       This logical analysis of the position does not accord completely with the decision of the Court of Appeal in Bathurst v Scarborow [2004] EWCA Civ 411. In this case, land was purchased during the course of a short-lived partnership in respect of which no signed accounts were ever prepared. Although it seems likely that the land was purchased with partnership funds, it was not alleged that this was the case. The conveyancing solicitors were instructed to purchase such land on a joint tenancy but the box on the transfer was not executed. At first instance, the Master held that the land was purchased as partnership property because this was the clear intention of the partners on the facts. The Court of Appeal overruled this finding of fact as it was clear that the partners intended that the land should be purchased by them as joint tenants. This is what the conveyancing solicitors had been asked to do. So far so good. The Court of Appeal then went on to suggest that partnership property could be held on joint tenancy without explaining how this might affect the sale of the same to enable the payment of creditors. Popat v Shonchhatra  was not cited to the Court of Appeal in Bathurst v Scarborow and Bathurst v Scarborow itself was not cited to the later Court of Appeal in Sandhu v Gill (which followed Popat v Shonchhatra). It is suggested that this (obiter) part of the judgment needs to be treated with care.   13.       The fact that the interest of a partner is reflected in his capital account means that a partner's capital account can be considered to be an interest in property in its own right. Thus, capital accounts can be held as joint tenants and can pass by survivorship. This principle was accepted by the Court of Appeal in Hopper v Hopper [2008] EWCA Civ 1417 where the only issue between the parties was as to whether there was a joint capital account between father and mother, with children having separate capital accounts or whether there was a single joint capital account. It was suggested in argument that joint capital accounts are common. This may be overstating the case. They are not uncommon as between husband and wife in farming partnerships. Indeed, this arrangement has many benefits because it means that the death of the first spouse does not lead to a general dissolution. The partnership can carry on as before (see also Graham v Graham [2018] 5 WKUK 132, HHJ Pelling, KC).                   3) Land becoming partnership property   14.       Unless the business of the partnership is selling land, there is no requirement that any land which it uses should be partnership property. The land can be owned by one or more of the partners outside the partnership and made available to the partnership either by way of a lease or licence whether subject to payment or otherwise. The mere fact that land is used by a partnership does not make it partnership property (see Davis v Davis [1894] 1 Ch 393). Nor does paying the rent make a farming lease a partnership asset (see Eardley v Broad [1970] 215 Estates Gazette 823).                           a) Land purchased before the partnership commenced   15.       Where the land was purchased before the partnership commenced, it has to become partnership property. This can arise by express declaration of trust in the usual way and such an express declaration of trust will be binding (see Pettitt v Pettitt [1970] AC 777).  The land would be transferred to A and B “as partners” or similar. This would be unusual. Such a declaration of trust can also be included in the partnership agreement. Otherwise, it is necessary to rely on the bringing in of the land into the partnership under section 20(1) of the Act.   16.       The transfer of land into a partnership necessarily requires the agreement of all partners because the partner who transfers the land into the partnership will require credit for the value of the same as an addition to his capital account. Without such credit, the accounts will not balance in any event. While this agreement can be express or implied (see Miles v Easter [1953] 1 WLR 581, Harman J), an implied agreement is unlikely to arise in the case of land as land can be made available to the partnership in a variety of ways. Section 20(1) of the Act is in effect a conveyancing section (see Wild v Wild [2018] EWHC 2197 (Ch) HHJ Eyre, KC). There needs to be an agreement to bring the land into the partnership and section 20(1) of the Act avoids the need to comply with section 2 of the Law of Property (Miscellaneous Provisions) 1989.                                       i) Bookkeeping entries   17. It is unclear whether bringing in needs to be accompanied by appropriate bookkeeping entries. Physical assets such as stock or machinery can be “brought in” to the partnership by delivery to the partnership premises. However, land does not move. All of the leading cases involve situations where the accounts show land as a partnership asset and the Court has been asked to determine whether this is sufficient evidence of an agreement to bring in. It is unlikely that there could be an agreement to bring in without this being accompanied by bookkeeping entries.   18. In practice, it can be very difficult to show bookkeeping entries to record the bringing in of land into a partnership. Invariably, the problem is the starting position. The accountant who produces the first accounts of the partnership ought to record the individual pieces of land which (when combined) give rise to the total land value. However, this is rarely the case for farming partnerships. The record (if made) might well become lost. Accountants also tend to treat money spent on improvements to land held outside the partnership as land investments of the partnership which can provide a further complication.                                       ii) Evidence of agreement   19. It is often assumed by clients that the bookkeeping entries themselves will provide sufficient evidence of an agreement to bring land into the partnership. Surely, that is the whole point of the exercise. Clients tend to assume that this is the case. This is not the way that the Court looks at the matter. Accountants who produce partnership accounts rarely have access to conveyancing documents and accountants often assume that all land used by a partnership is partnership property. In a line of cases starting with Barton v Morris [1985] 1 WLR 1257 and ending with Wild v Wild, the Court has refused to accept bookkeeping entries as reliable evidence of an agreement to bring land into the partnership. Insofar as it is evidence, it has to be weighed against other available evidence. As no partner has an interest in specie in any part of partnership property, statements made by a partner that he has an interest in a specific piece of land (whether by including it in his Will or in a trust document) may provide a strong rebuttal to the contention that the land is partnership property.                           b) Land purchased during the partnership   20. Section 21 of the Act provides as follows:                                       "Unless the contrary intention appears, property bought with money belonging to the firm is deemed to have been bought on account of the firm"   21. This provision usually deals with the ownership of land bought using partnership funds. A contrary intention will only appear if there is an express declaration of trust or evidence that this is what was actually intended by the partners. Contrary intention is not merely failure to include land within partnership annual accounts unless that failure is intentional (see Mehra v Shah [2004] EWCA Civ 632)   22. There are a number of issues relating to whether in any particular case property is bought with money belonging to the firm. These are as follows:                           1)         Partnership funds can only be used if the partnership has a bank account or payment can be otherwise proven.                           2)         The section is dealing with monies owned beneficially by the partnership at the date of the purchase. Monies taken by a partner as agreed drawings and then applied by him in buying property are not monies of the partnership. However, it is not clear whether this principle applies to drawings which are not agreed. In practice, monies misappropriated by a partner are treated as drawings when the next annual accounts are drawn up (because there is no other way of making the accounts balance). The accountants with often do this without explaining what has been done. In James v James [2018] EWHC 43 (Ch) the Court accepted at face value the fact that monies used by one partner had been treated as his drawings and that such drawings had been used to buy land as indicating that such land was not partnership property. There was no analysis of whether the drawings were agreed.                                                                                                     3)         The section is most obviously directed at one off purchases. It is far from clear   that the section applies to a situation where one partner buys land with the   assistance of a mortgage and the partnership pays the sums due under the   mortgage. It can be easily inferred that such payments are to be treated as rent   (see Morton v Morton [2022] EWHC 163).                 4) Land transferred out of a partnership   23. Section 2 of the 1989 Act (relating to the agreement for the sale or an interest in land) and section 53 of the Law of Property Act 1925 Act (relating to the actual transfer of an interest in land) need to be considered in respect of each transaction whereby land is to leave a partnership. Section 20(1) of the Act is a one-way ticket in.   24. Where parties agree to a transfer of a share of a partnership, whether on dissolution or retirement, section 2 of the 1989 Act must be complied with if the partnership owns land. Where an option is granted by one partner to another to sell or purchase another's share, the option must also comply with section 2 of the 1989 Act if the partnership includes land.   25. Strictly, any transfer of an interest in land into or out of a partnership must comply with section 53 of the 1925 Act. The fact that there is no written transfer may indicate that there was no actual agreement for the transfer of land into or out of the partnership. The strength of this indication will depend on the extent to which the partnership otherwise complied with legal formalities. If the parties agree that land is to be transferred into a partnership and act in reliance upon the fact that it has been, then it is very likely that an estoppel will be found to this effect. This is probably why points based upon section 53 of the 1925 Act are rare.               5) Rights of occupation   26. If the land is not an asset there has to be some right to occupy. There will not be a lease implied for the benefit of a partnership which occupies land which is not a partnership asset. The use made of it by the firm and all the partners is given effect to by the creation of implied ‘non-exclusive' licences to the partners, not to the partnership (see Harrison-Broadley v Smith [1964] 1WLR). These licences will not be determinable during the partnership if it is inconsistent with the duty of good faith. On dissolution given the right of all partners to wind up the firm, the licences will continue for this purpose               6) Rules for determining whether non-land assets are partnership property   27. The fact that an asset is not capable of being sold does not prevent it from being partnership property (see Don King v Warren CA [2000] Ch 291). The partner in whom it is vested will have to account for its value. Non-alienable assets cannot be sold as part of winding-up. However, the partner in whom they are vested can be made to account for their value.   28. Miles v Clarke is an important case because it is often assumed that all of the non-land assets used by a partnership in the conduct of its business will be assets of the partnership. This will be the case where the asset is bought using the funds of the partnership. Otherwise, the asset will only be a partnership asset by implication is this is required as a matter of business efficacy which will be unusual.               7) Property generated by the partnership   29. Where an asset is generated by one partner through his position as a partner, there is no presumption as to whether such asset is partnership property. The Court will have to determine whether there is an agreement to this effect (see Goldup v Cobb [2017] EWHC 526 (Ch).) In this case a partner in a solicitors practice acquired pension rights as a result of being a coroner. Income derived from such position was treated as partnership income. However, the Court held that the pension rights which had accrued to such partner were not partnership property because there was no agreement (express or implied) to this effect.               8) The sale of partnership assets after winding-up                           a) Presumption that all of the assets of the partnership should be sold   30. Following dissolution the Court has the power to order the sale of all of the assets of the partnership (including land) and will usually do so because to do otherwise would or might deprive the former partners from realizing the maximum return from the assets of the partnership. The practice is only departed from in two situations, namely (i) when a Syers v Syers Order is made and (ii) where the sale of the partnership assets would offend statute or would otherwise be difficult to achieve   31. It follows that in many cases it will be obvious that there will need to be a sale of the assets of the partnership and that the winding-up of the partnership cannot commence in proper without such sale. Although the current editors of Lindley state that the practice of the Court is not to order a sale at an early stage of a partnership dispute, this is not the practice of the Court. Unless there is some good reason why a sale would not be ordered at the trial of the claim, there is no good reason to delay a sale until such time. For example, if the issue between the partners is whether the profits are to be shared equally or one third two thirds, there is no good reason why the sale should be delayed until the trial. Obviously, of there is an issue as to whether a particular asset is a partnership asset, the sale might not be ordered until this issue has been determined. However, if the issue is whether the asset is partnership property or held as tenants in common in equal shares, sale might well be ordered as the Court has power to order sale of assets held as tenants in common in any event (see Bagum v Hafiz [2016] Ch 241).                           b) Method of sale   32. In principle, there is little difference between the conduct of the sale of partnership assets and a sale of co-owned assets. Any partner will be allowed to bid and the likelihood that a particular partner may bid will affect which who has conduct of the sale. A partner cannot bid and have conduct of the sale. The only concern of the Court is that the assets of the partnership should be sold at the best price reasonably obtainable in the circumstances. It is common for one partner to be given conduct of the sale on the basis that he will sell at or above a particular price provided that his agent considers that the price is the best price reasonably obtainable in the circumstances (which is a deliberately vague expression).   33. It would be normal practice to allow a purchasing partner P effectively set off his share in the partnership against the price which he has to pay for a particular asset. P would agree to pay the purchase price and this would be included in the accounts as the value of the asset concerned. P's capital account would be adjusted accordingly and would be set off against the purchase price. P would normally be expected to pay a deposit pending the calculation of the set-off.                           c) Syers v Syers Orders   34. The majority of partners (either in number or by partnership share) may apply to the Court for an Order that they be entitled to buy out the minority usually at the date of dissolution at a price to be determined by the Court. As remarked by Hoffmann LJ in Hammond v Brearley [1992] WL 12678533, Syers v Syers is more often cited than applied. It is an unusual order because it deprives the minority of the ability to test the market so as to ensure that the assets of the partnership are sold at the best price obtainable.   35. A Syers v Syers Order was made in Mullins v Laughton [2003] Ch 250, Neuberger J. In Mullins the partnership was a joint lives partnership where the defendants had attempted to expel the claimant for breaches of the partnership agreement. The claimant sought the dissolution of the partnership under section 35 of the Act. This was granted, but the Court gave the majority the opportunity to buy out the claimant at a valuation. There are a number of unusual features of the case which make it easy for the Court to make a Syers v Syers order. These were as follows:               1)         The application was heard at the same time as the partnership was dissolved.                           2)         The majority could have expelled the claimant if they had properly used the procedure of the partnership agreement                           3)         There was no real opposition to the making of the order and no suggestion that the assets of the partnership could not be valued easily.         36. A Syers v Syers Order was refused in Benge v Benge, 13/02/17, Murray Rosen, KC where there was a real risk that a valuation would not achieve the result achievable on a sale in the open market.   37. Where the Court makes a Syers v Syers order, the usual rule is that the sale will take place following the order. However, the order can be retrospective so that the assets of the partnership are deemed to have been sold on dissolution. This may be an advantage for the departing partner in that retirement relief for CGT can be retained.   Land bought for business purposes   38. Once it has been determined that land has not been bought as partnership property, it is necessary to determine whether it has been purchased as joint tenants or tenants in common. As always, a declaration of trust will determine the issue. However, if there is no declaration of trust, how is the issue to be determined.   39. In a domestic context, the starting point is that equity follows the law. Where land is transferred to A and B, the initial starting point is that they hold the same as joint tenants (see Stack v Dowden [2007] 2 AC 432) and Jones v Kernott [2012] 1 AC 776). However, where land is purchased for business purposes, the starting point has always been that survivorship is not to apply as this is inconsistent with a business relationship. In Williams v Williams [2024] EWCA Civ 42, the Court of Appeal held that the presumption relation to business purchases still applies as no purchase could be approached “in a vacuum”.   40. Accounts of a partnership do not operate as severance of joint tenancy (see Bartin v Morris).

Misrepresentation and Credit Hire – Refusal of Application for Non-Party Disclosure Order in Respect of Voice Recordings Upheld

Mr Joshua Parker v (1) Skyfire Insurance Company Limited (2) Spectra Drive Limited [2024] EWHC 1060 (KB)   High Court, Mrs Justice Dias   This case concerns an appeal from an order of Mr Recorder Michael Smith sitting in the County Court at Liverpool on 25 September 2023 refusing an application by the Defendant ("Skyfire") for non-party disclosure under CPR Part 31.17.   Background   The underlying claim arise out of a road traffic accident which occurred on 5 December 2021 and involved what insurers have labelled "Google-spoofing".   Following the accident, the Claimant, Mr Parker, immediately attempted to notify his insurers, Hastings, of the accident. He Googled their name and rang the first number in the list of search results. Unbeknownst to him, he was in fact speaking to a claims management company which told him that he would be put in touch with a hire company who would arrange for his car to be repaired. His car was then collected from his home later that same day. On the following Monday, he was called by the First Respondent ("Spectra") who told him that they could provide him with a hire car and also sort out the damage to his own car.   In due course he was sent a number of documents by Spectra. These included:   <ul> <li>A short-term rental agreement for a maximum of 89 days on Spectra's letterhead and displaying its contact details and company registration. There was an express acknowledgement in the signature box that the hirer was agreeing to hire the vehicle on the terms and conditions contained in the agreement. Clause 5 of those conditions (which applied where the hire was necessitated by damage to the hirer's own car in a road traffic accident) contained an undertaking by the hirer to pay the hire charges either at the conclusion of any action against the third party alleged responsible for the accident or in any event within 11 months of the date of the agreement;</li>   <li>A Form of Authority authorising Spectra to recover all uninsured losses arising from the accident and to appoint a solicitor on behalf of the hirer;</li>   <li>A Mitigation Questionnaire in which the hirer acknowledged that the hire vehicle was not free, and that it was being provided on a credit hire basis;</li>   <li>A sheet of FAQs identifying the hire company as Spectra Drive Limited and expressly clarifying that Spectra was not the hirer's insurance company or part of or acting on behalf of the hirer's insurers. It also stated that the hirer was legally liable for the charges incurred in hiring the vehicle but that Spectra would recover these from the third party. It continued, "We will not ask you to pay the charges provided you have complied with the terms of the agreement and co-operated with us or any solicitor you instruct, throughout your claim."</li> </ul>   Mr Parker signed all these documents by Docusign.   Mr Parker sought to recover his losses arising out of the accident, including the credit hire charges and other storage and recovery fees incurred under the agreements with Spectra.   Skyfire objected to the claim for credit hire charges on a number of grounds, including enforceability of the credit hire contract. Skyfire strongly suspected that in the course of Spectra's discussions with Mr Parker, some misrepresentation was made, whether as to any association between Spectra and Mr Parker's own insurers, or as to the circumstances in which Mr Parker might or might not himself be called upon to pay the charges under the agreement. Its argument was that if any misrepresentation were made, the agreement would be voidable for misrepresentation and that if Mr Parker were to avoid it, he would not be under any subsisting liability to pay the credit hire charges and would not have suffered any corresponding loss. Skyfire would accordingly be relieved pro tanto of any obligation to indemnify him.   However, Skyfire was unable to advance any positive case to this effect without the recordings of the conversations between Mr Parker and Spectra, and so made an application against Spectra for non-party disclosure of "the recordings of all calls between Mr Joshua Parker and Spectra in relation to the accident, vehicle damage and replacement vehicle…".   Skyfire’s Defence and Counter Schedule of Loss simply put Mr Parker to proof that he signed an enforceable agreement with Spectra and as to the representations made to him regarding the terms of payment.   Part 31.17   CPR Part 31.17 provides in material part as follows:   "(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.   (2) The application must be supported by evidence.   (3) The court may make an order under this rule only where—   (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and   (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.   …"   It was common ground that Part 31.17(3) sets out the threshold conditions which must be satisfied before any order can be made but that even if those conditions are met, the court has an overarching discretion whether to grant the order or not. In other words, satisfying Part 31.17(3) is a necessary but not sufficient condition of obtaining relief.   It was also not seriously in dispute that an order for non-party disclosure is to be regarded as the exception rather than the rule: see Rowe v Fryers [2003] EWCA Civ 655 at [10].   The judgment under appeal   The application for non-party disclosure came before the Recorder on 25 September 2023 and was opposed by both Spectra and Mr Parker on the grounds that:   <ul> <li>Disclosure was not necessary in the circumstances of the case;</li>   <li>There had been delay in bringing the application;</li>   <li>It would be disproportionate to require Spectra to search for all recordings over the entire lifetime of its relationship with Mr Parker;</li>   <li>On a proper analysis of the law, no useful purpose would be served by ordering the disclosure because it would take Skyfire nowhere.</li> </ul>   In his judgment, the Recorder recognised that he was required to consider first whether the threshold conditions in Part 31.17 had been satisfied before proceeding to exercise his discretion based on a consideration of all the circumstances in the case.   His conclusions were as follow:   <ul> <li>He accepted that the question of enforceability and misrepresentation was a pleaded issue to which the disclosure was relevant.</li>   <li>With some hesitation, he also accepted that the documents were necessary in order for Skyfire properly and fairly to advance the case it wished to make since, without the disclosure, its counsel would only be able to cross-examine Mr Parker on a purely speculative basis.</li>   <li>It would not be unduly difficult to search for the recordings and it would not therefore be disproportionate to require disclosure to be made.</li>   <li>Skyfire could justifiably be criticised for having delayed in bringing the application, with the result that granting the order would inevitably lead to vacation of the trial date. However, the credit hire charges were the key issue remaining in the case and the sum at stake was substantial. If disclosure was otherwise justified on the grounds of necessity, delay would not itself be a reason to refuse an order. There was no real prejudice to Mr Parker in vacating the trial since he had not been called upon to pay the charges himself and was not being kept out of any other damages to which he was entitled.</li>   <li>However, even if the disclosure demonstrated unequivocally that there had been a misrepresentation, Skyfire's defence could still not succeed because the contract between Mr Parker and Spectra remained valid and enforceable until such time as Mr Parker chose to avoid it. There was no indication that he intended to do so and on the authority of Irving v Morgan Sindall plc [2018] EWHC 1147 (QB) he would be entitled to recover even if his liability under the contract was contingent upon his recovering damages from Skyfire.</li>   <li>Accordingly no useful purpose would be served by making an order.</li> </ul>   Grounds of appeal   In its Appeal Notice, Skyfire asserted that the Recorder's reasoning disclosed an error of law and/or that his conclusion was perverse. More specifically, it asserted that:   <ul> <li>The Recorder wrongly interpreted Irving v Morgan Sindall plc (supra) as precluding Skyfire from raising an argument as to misrepresentation.</li>   <li>It was inconsistent for the Recorder to suggest that, despite satisfying the threshold provisions of Part 31.17, disclosure would nonetheless serve no useful purpose.</li>   <li>The conclusion that no useful purpose would be served was in any event perverse since it was based on an assumption that the contract with Spectra would be confirmed by Mr Parker when there was no direct evidence from him to this effect, only indirect hearsay evidence from his solicitors (in respect of whom there was a clear conflict of interest given that they also acted for Spectra). It was pure speculation what his evidence would be at trial.</li> </ul>   Permission to appeal was granted on the papers.   Discussion and analysis   It was not in dispute that an appeal from the County Court does not proceed by way of rehearing. It is limited to a review of the decision below and in accordance with CPR Part 52.21(3) requires the appellant to show that the decision appealed from was either wrong or unjust because of a serious procedural or other irregularity in the proceedings below.   Mrs Justice Dias began by observing as follows (§21):   <ul> <li>‘…the relevance of the disclosure is in relation to the question of whether Mr Parker has suffered any loss in respect of the credit hire charges. If the agreement with Spectra were invalid (for example, because it was irredeemably unenforceable due to some breach of the Consumer Credit Act), then Mr Parker would be under no liability to pay the charges and would have suffered no loss in that respect. In those circumstances, any claim would be limited to general damages to reflect the notional cost of hiring a car: see Bee v Jenson [2007] EWCA Civ 923.’</li> </ul>   Accordingly, Mrs Justice Dias did not accept the suggestion by the Claimant that any issue of remoteness arose or that the recent Supreme Court decision in Armstead v Royal & Sun Alliance Co. Ltd [2024] UKSC 6 had any relevance. It was observed that in that case, the argument raised by the defendant as to enforceability of the credit hire agreement had been withdrawn before the case reached the Court of Appeal and there was no dispute that the claimant was under a liability to pay the hire company.   Threshold requirements   Turning to the threshold requirements of Part 31.17(3), Mrs Justice Dias said as follows:   <ul> <li>‘…there was no dispute before me that when assessing whether the disclosure sought is "likely" to support or adversely affect one side's case, the appropriate test to apply is whether it "may well" do so. This requires a higher degree of probability than that of "real prospect"…but something less than a balance of probabilities…’ (§23).</li>   <li>‘It is clear from the material placed before me, including various court decisions involving Spectra itself, that it is not uncommon in credit hire cases for the claimant to be told – incorrectly – that he or she will have no personal liability for the hire charges. Other criticisms have also been made of credit hire companies, for example in failing to make clear that they were not the claimant's insurers or acting on behalf of the claimant's insurers. Equally there have been cases where it has been held that no misrepresentation was made’ (§24).</li>   <li>‘However, it is important to note that these are all findings which were made after the judge had heard evidence at trial. This, by contrast, is a pre-trial application where it cannot be known for certain whether any misrepresentation was actually made or, if so, exactly what was misrepresented. [Counsel for the Appellant] submits that this is precisely why pre-action disclosure is needed because the point is crying out for investigation at trial’ (§25).</li>   <li>I have considerable sympathy with this submission. Non-party disclosure applications frequently involve a degree of speculation as to what will emerge. The question for me is whether Skyfire has done enough to show that the call recordings "may well" support its case or adversely affect that of Mr Parker’ (§26).</li>   <li>‘At the very least, it seems to me that this is a point which would in principle be worthy of exploration at trial. I am therefore satisfied that the disclosure sought "may well" support Skyfire's case on misrepresentation and is accordingly likely to do so. It is not a mere fishing expedition. I stress, however, that this is a decision which rests on the particular facts of this case. It may well be that in cases involving other claims management and credit hire companies, there is not sufficient evidence to satisfy the threshold condition of likelihood with regard to the existence of a misrepresentation. This must always be a fact-specific assessment which may vary from case to case and it is not possible to lay down any general rules’ (§29).</li>   <li>‘However, that is not the end of the matter because Skyfire must also satisfy me that the disclosure is necessary in order to dispose fairly of the claim or to save costs. But if there is no real prospect that the disclosure can make any difference to the outcome of the claim, it is difficult to see how it could ever be "necessary" to the fair disposal of the claim’ (§30).</li>   <li>‘There was rightly no suggestion in this case that the contract was unenforceable or invalid because Mr Parker did not understand what he was signing. It is well-established that it unnecessary for a contracting party to have understood the true nature of the contract in order to be bound by it: Burdis v Livsey [2002] EWCA Civ 510’ (§31).</li>   <li>The only basis on which it was suggested that Mr Parker might not actually be liable to Spectra was on the grounds of misrepresentation. However, it was conceded that even if it could be established that Mr Parker's contract with Spectra was tainted by misrepresentation, that would not of itself mean that he was under no liability, conceding, amongst other things, that a voidable contract is valid unless and until it is avoided; avoidance requires the innocent party to take some steps to rescind the contract; recission is not available unless it is possible to make restitutio in integrum; and a contract cannot be rescinded if it has been affirmed by the innocent party with full knowledge of the facts and of his or her right to avoid (§32). </li>   <li>Mrs Justice Dias disagreed that the Recorder wrongly interpreted Irving v Morgan Sindall plc. In her view, the Recorder correctly identified the proposition that a claimant's liability under a credit hire contract is, whether as a matter of construction or by operation of a collateral agreement or otherwise, contingent upon them recovering damages from the defendant, which contingent liability constitutes a loss in respect of which a claimant can recover (§35). </li>   <li>The Recorder’s conclusion that ordering disclosure would be futile was the result of his assessment, based on the facts and evidence before him, that there was no sufficiently realistic prospect of avoidance even if a misrepresentation could be established (§36).</li>   <li>The question whether the Recorder's conclusion was nonetheless wrong because it was perverse required consideration of two separate questions: (1) whether avoidance was even an option open to the Claimant unless he could make restitution; and (2) if it was, whether he had in any event put it out of his power to avoid by affirming the contract (§38).</li>   <li>As to affirmation: ‘A voidable contract does not depend for its validity on whether it has been affirmed or not. Rather it is valid unless and until it is avoided. The correct question is therefore not whether the Respondents have produced sufficient evidence of affirmation, but whether Skyfire can point to a real prospect that the contract is both capable of being avoided in principle, and, if so, might in fact be avoided by Mr Parker’ (§40). </li>   <li>The Appellant laid much emphasis on the fact that there was no positive or direct evidence of affirmation from Mr Parker. However, Mrs Justice Dias observed that a contract can be affirmed by conduct as much as by express words and statements and may even be deemed to have been affirmed by lapse of time: Chitty (op.cit.) para. 10-148 (§41).</li>   <li>Mr Parker brought his claim to recover the credit hire charges in express reliance upon the contract with Spectra, opposed the application for non-party disclosure before the Recorder and continued to maintain his opposition to the application on the basis argued by his counsel that avoidance was not a realistic possibility. </li>   <li>Against that background, Mrs Justice Dias could not see any basis for suggesting that Mr Parker might seek to avoid the contract with Spectra in the future, having chosen not to do so hitherto (§43).</li>   <li>However, even assuming a real prospect that the contract is capable of being avoided in principle, it is necessary to ask the question as to whether it is a course of action even theoretically open to a claimant if restitution can no longer be made.</li>   <li>In Mr Parker’s case, the hire agreement was a contract for services which had been fully performed. Mrs Justice Dias observed that Mr Parker had the benefit and use of the car for nearly one year and that in those circumstances, it was difficult to see how he could make restitution in respect of those services received: ‘In this respect, a contract for services is very different from, for example, a contract for the sale of goods where the goods themselves can be returned, even if it might be necessary to make some allowance for depreciation. Although there are indications that the courts might be prepared to adopt a slightly more flexible approach to restitution than in the past, it is still the case that a fully performed contract for services cannot be rescinded: Chitty (op.cit) paragraphs 10-139 to 10-140 (§45).</li>   <li>‘This, it seems to me, is an insuperable obstacle to avoidance of the contract which exists independently of any misrepresentation or affirmation. It follows that even if the application were granted and even if the disclosure fully supported a case of misrepresentation, Skyfire would be unable to establish any circumstances in which Mr Parker would be relieved of his liability under the contract with Spectra’ (§46). </li>   <li>In Mrs Justice Dias’ judgment, for these reasons, the Recorder was entirely correct to conclude that disclosure would serve no useful purpose and as such that it could not be regarded as necessary for the fair disposal of the claim (§47). </li>   <li>Mrs Justice Dias was at pains to stress that there must always be a fact-specific assessment and that ‘it is not possible to lay down any general rules’ (§29): ‘Again, I stress that this is a fact-specific finding which depends on the circumstances of the particular case. Other cases may present factual situations where rescission is not barred on the facts and where there are no compelling grounds for saying that the contract had been affirmed but that is not the case here’ (§48).</li> </ul>   Proportionality   As regards proportionality, Mrs Justice Dias agreed with the Recorder that ‘it would not be disproportionate or unreasonable for Skyfire to be ordered to give disclosure if it was otherwise appropriate’, observing that she would not have refused the application on this ground alone (§50).   Delay   ‘The question of whether the application should be refused on grounds of delay is a paradigm example of a case management decision falling within the ambit of the Recorder's discretion’ (§57).   Postscript   As regards the practice of “Google-spoofing”, Mrs Justice Dias said, obiter, that whilst she could readily understand the desire of insurance companies to challenge such practices, ‘if there is anything objectionable in it, it may well be that this can only be addressed by Parliament, the FCA or one of the other industry regulators’ (§61).   The full judgment can be found <a href="https://www.bailii.org/ew/cases/EWHC/KB/2024/1060.html" target="_blank" rel="noreferrer noopener">here.</a>

Fluctuating Capacity: the approach of the Court of Protection

Tom Barclay-Semple appears in the May 2024 edition of the Family Law Journal. Following on from his presentation at the AvMA Court of Protection Conference 2023, Tom’s article details the Court of Protection’s approach to the issue of fluctuating capacity and what orders should be sought in those circumstances.   Practitioners can access the article with a Lexis+ UK subscription <a href="https://plus.lexis.com/uk/document/?pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-uk%2Furn:contentItem:6C69-G5W3-RTV3-H45T-00000-00&tocnodeid=TAABAABAAEAAF&isviewwholeof=true&fontType=verdana&fontSize=Small&doccollection=analytical-materials-uk&tocid=urn:contentItem:5R73-NM51-FM2B-Y000-00000-00&docProviderId=hg4k&pct=urn:pct:241&hlct=urn:hlct:50&pageNumber=0&new-toc=1&docLni=6C69-G5W3-RTV3-H45T-00000-00&crid=f4fac8c1-31e2-4b61-87c3-bf0384652544" target="_blank" rel="noreferrer noopener">here</a>.

Care Proceedings involving Unaccompanied Asylum-Seeking Children

It has become the sad reality that thousands of individuals are forced to flee their home country due to war, persecution, violence, poverty and for many other reasons. For many, fleeing their home country in search for a better life comes with significant risks and are vulnerable as a result. Truth be told, even when refugees, asylum-seekers and migrants arrive in their desired country and receive international protection, that vulnerability continues by often having no family members or friends in that country, being unable to speak the native language, and being exposed to a new culture.   Risks taken by parents and/or family members include sending children unaccompanied across the globe for their safety and/or in search for a better quality of life. These journeys are often long and dangerous. When unaccompanied asylum-seeking children arrive in England and Wales, Local Authorities have a duty in accordance with Section 20 of the Children Act 1989 to ensure that they are suitably accommodated. Unless a care order is made, should a child’s parents be deceased or uncontactable, no one is able to exercise parental responsibility over the child.   This article focuses on two common issues which arise within care proceedings relating to unaccompanied asylum-seeking children:   <ul> <li>Notification to foreign authorities</li>   <li>Threshold</li> </ul>   Notification to Foreign Authorities   Article 37(b) of the Vienna Convention on Diplomatic Relations 1961 states:   If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty: […]   to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments.   Sir James Munby confirmed how Article 36(b) should be applied in care proceedings at paragraphs 47-48 in Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam):   […] Whenever a party, whether an adult or the child, who is a foreign national   a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or   b) is detained,    the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay. [47]    If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision [48]   Sir James Munby makes it clear that, while it is good practice to inform a foreign authority of proceedings, the court does have liberty to depart from this position. Such view is consistent with the advice given by the Department of Education: “Working with foreign authorities: child protection cases and care orders” (<a href="https://assets.publishing.service.gov.uk/media/5a7d9d2fe5274a676d5331a3/Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf" target="_blank" rel="noreferrer noopener">https://assets.publishing.service.gov.uk/media/5a7d9d2fe5274a676d5331a3/Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf</a>) dated 2014, which confirms at page 6:   Social workers should inform the relevant Embassy when a child with links to a foreign country has become the subject of a child protection plan, has required immediate protection or has become the subject of care proceedings, unless doing so is likely to place the child or family in danger and provided any necessary consent to disclose information has been obtained. Decisions should be linked to a robust and thorough risk assessment.   Lord Justice Moylan and Mr Justice MacDonald published further guidance in 2019 titled “International Family Justice Officer: Family Courts Informing Consular Authorities of Proceedings” (<a href="https://www.judiciary.uk/wp-content/uploads/2019/12/Consular-Authorities-Note.Final-18.04.19-1.pdf" target="_blank" rel="noreferrer noopener">https://www.judiciary.uk/wp-content/uploads/2019/12/Consular-Authorities-Note.Final-18.04.19-1.pdf</a>). The following guidance was of note:   <ul> <li>The court should ascertain the immigration status of the foreign child involved in care proceedings.</li>   <li>The court may require the parties to obtain advice from an experienced immigration lawyer.</li>   <li>The court should be mindful of any detrimental consequences for the family in the country of origin should notification be permitted.</li> </ul>   The recent decision of Mr Justice Keehan in Re O (A Child: The Vienna Convention on Consular Relations 1963) [2021] EWHC 908 (Fam) sets out the circumstances where requisite notification may not be required:   In the premises does Article 37(b) impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals? In my judgment it does not. [31]   In the vast majority of cases where Article 37(b) is engaged, the court will have no difficulty or face any impediment in complying with the terms of the Vienna Convention and giving the requisite notification to the foreign authority. There will be rare cases, such as the circumstances of this case, where it would wholly inimical to the welfare best interests of the child to give the requisite notice to the foreign authority. <a></a> [32]   The Vienna Convention is not enshrined in our domestic law. The terms of the Convention should ordinarily be complied with but where to do so would be contrary to the welfare best interests of the child concerned, I am satisfied that the court may conclude it would not be appropriate to give the requisite notification. [33]   I am satisfied in this case and on the basis of the cogent evidence before the court that it would be wholly contrary to the welfare best interests of O for the court or for the local authority to notify the Congolese authorities of the fact of these public law proceedings and/or of the appointment of a guardian to represent her interests. [34]   In this case, the child was a 13-year-old citizen of the Democratic Republic of Congo (“DRC”) who was brought to the United Kingdom by her mother’s friend who sadly abandoned her at a bus stop. While the child did miss her family, she did not want to return to the DRC due to the horrific experiences she had encountered and her belief that she would either be arrested or killed upon her return. In contrast, the child was doing well in the UK and wished to remain in her foster care placement where she could receive psychological help. Mr Justice Keehan confirmed that he had no reason to doubt the account given by the child and provided permission to the Local Authority not to inform the DRC of proceedings.   Accordingly, case law makes clear that whether a Local Authority should give a foreign authority requisite notice of proceedings will be dependent on whether the same would be contrary to a child’s best interests.   Threshold   In cases where the parents of the unaccompanied asylum-seeking child are deceased or are outside of the jurisdiction, a question arises as to how threshold is pleaded. Often thresholds are pleaded on the basis that a child is suffering or is likely to suffer significant harm given no one can exercise parental responsibility. While the child is likely to suffer significant harm, in accordance with the section 31(2) test, how is that harm attributable to the care being given to the child?   This issue was addressed by Lord Justice Peter Jackson in Re J (Child Refugees) [2017] EWFC 44. This case concerned an application for care orders of two unaccompanied asylum-seeking children who fled Afghanistan due to the Taliban. Very little was known about the children’s family other than both children’s fathers were believed to be deceased or missing. At paragraph 15, Lord Justice Peter Jackson stated:   The question first arises as to whether such children can properly be accommodated under section 20 of the Children Act, or whether the Local Authority is under an obligation to bring care proceedings.  In this case, the threshold criteria have undoubtedly been crossed because the children have certainly faced the risk of significant harm and have, indeed, suffered significant harm at the time the proceedings were brought as a result of being sent across the world without any parental protection.  Whether the children are to be described as abandoned or just sent out into the world makes no difference.  It also seems to me that the fact that the children may have been sent out of Afghanistan for their own benefit does not prevent the threshold for care proceedings being met.  That was a decision that was taken either by the parents or the parents were not in a position to exercise parental responsibility so that it was taken by others.  The fact that the children might have suffered worse harm by staying does not mean they have not suffered significant harm and risked suffering significant harm by going   Re J confirmed at paragraph 17 that the test for threshold is the attribution of harm to the parental behaviour, not parental culpability.   While not concerning unaccompanied asylum-seeking children, the decision of HHJ Thorp in West Sussex County Council v K [2022] EWFC 170 provides a helpful guide to situations where care orders can be made without their being any fault of the parents. In this case, father was deceased, and mother suffered a catastrophic brain haemorrhage and could no longer care for the child; there were no concerns with the mother’s parenting before this. HHJ Thorp stated at paragraph 35:   In those circumstances, in my judgment, threshold is crossed in this case, whether the threshold date is shortly after the mother had her haemorrhage or whether it is in February 2022. The fact of the matter is that if there was no intervention and an order was not made, this is a child who would not have the care from a parent which it would be reasonable to expect a parent to give. The reason for that is that the mother just cannot provide it, through no fault of her own. Equally, in my judgment it is highly likely that as a result of her mother's incapacity (and, hence, her inability to provide the care which it would be reasonable to expect a parent to give), K would be likely to suffer significant harm in the future if an order were not made. Indeed, no party submitted that she would not be at risk of significant harm in these circumstances.   Further, HHJ Thorp concludes at paragraph 41 that: “[…] it is vital that the Local Authority share parental responsibility so that there is in fact someone who is able to exercise parental responsibility, and so that K can be looked after appropriately.”   Case law has therefore established that threshold can be satisfied where no one can exercise parental responsibility, even in circumstances where there has been no fault of a parent or caregiver.

Coroner Issues Prevention of Future Death Report

<a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/" target="_blank" rel="noreferrer noopener">Richard Copnall</a> (Instructed by <a href="https://www.isonharrison.co.uk/" target="_blank" rel="noreferrer noopener">Ison Harrison</a>, Leeds) recently represented the family of Mathew Dale at an inquest in Liverpool. Mathew was an adult with a significant learning disability, who was in full time residential care. When unsupervised, he removed padding from his incontinence pad, placed it in his mouth and choked to death.   The coroner agreed with the family’s submissions that the circumstances required the issuing of a prevention of future deaths report to the government [<a href="https://www.parklaneplowden.co.uk/app/uploads/2024/06/Matthew-Dale-Prevention-of-future-deaths-report-2023-0028_Published.pdf" target="_blank" rel="noreferrer noopener">you can see a copy here</a>]. Then government has now published its response [<a href="https://www.parklaneplowden.co.uk/app/uploads/2024/06/Reg-28-PFD-Response-Coroners-Report-DALE.pdf" target="_blank" rel="noreferrer noopener">you can see a copy here</a>]. The key points are that the Government has, since the inquest, published:   <ol style="list-style-type:lower-alpha"> <li>The “Care Workforce Pathway which provides (for the first time) a national career structure for those working in adult care.</li>   <li>A new professional qualification for those employed in Adult Social Care, which includes training in health and safety and life support and is backed by £50 million to support 37,000 individuals to enrol.</li> </ol>   Matthew’s case provides a powerful illustration of the way in which a thorough inquest, with an experienced legal team can contribute to improvements in public policy.

Allege and Fail to Prove Fundamental Dishonesty? A ‘Significant Risk’ You’ll Pay Indemnity Costs

Thakkar & Ors v Mican & Anor [2024] EWCA Civ 552   Decision of the Court of Appeal   Leading Judgment of Coulson LJ, with the Lady Chief Justice & Asplin LJ agreeing   20 May 2024   <a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__caselaw.nationalarchives.gov.uk_ewca_civ_2024_552-3Fquery-3Dthakkar&d=DwICAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=_Tqnn7PeGD0E3Ikr9KycpBghkm9HL1oCiW3uNBXhD2G3XOBqYt1-tjwHxkBMIkKz&m=223Tr5-ZrNcFAfZED5y2YidSwij50jJR1ssNaWke1r0PXp8vEWjh1MuRjSfsEXxd&s=3TW6kFTJLAMs8RJJL2vXDG9j8e0GRwEnoofiGtek9yI&e=">https://urldefense.proofpoint.com/v2/url?u=https-3A__caselaw.nationalarchives.gov.uk_ewca_civ_2024_552-3Fquery-3Dthakkar&d=DwICAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=_Tqnn7PeGD0E3Ikr9KycpBghkm9HL1oCiW3uNBXhD2G3XOBqYt1-tjwHxkBMIkKz&m=223Tr5-ZrNcFAfZED5y2YidSwij50jJR1ssNaWke1r0PXp8vEWjh1MuRjSfsEXxd&s=3TW6kFTJLAMs8RJJL2vXDG9j8e0GRwEnoofiGtek9yI&e=</a>   Background   <ul> <li>In this case, the claimants brought a claim arising from a RTA in May 2017.</li> </ul>   <ul> <li>Liability was in issue. The claimants alleged the defendant driver had driven his van into their car; whereas the defendant driver alleged that the claimant driver drove from a parked position into the side of his van. The defence pleaded that the claimants’ credibility and honesty would be challenged at trial.</li> </ul>   <ul> <li>At the CCMC the Circuit Judge considered an application by the defendants to amend the defence and allege fundamental dishonesty. The Judge was unimpressed and refused the application. The relevant matters came ‘nowhere near what is required to be able to plead fraud and/or fundamental dishonesty’. It was accepted that following the trial, if there were grounds to do so, the defendants could still advance the allegation of fundamental dishonesty (in accordance with Howlett & Howlett v Davies & Ageas Insurance Ltd [2017] EWCA Civ 1696).</li> </ul>   <ul> <li>At the trial in April 2022, the court gave judgment for the claimants. The Judge resolved the factual issues according to the reliability of the witnesses’ recollection. There was no allegation at trial that the claimants had been fundamentally dishonest.</li> </ul>   <ul> <li>The claimants sought their costs following the CCMC (when the defendant had sought to amend the defence and allege fundamental dishonesty) up to the date of the trial on an indemnity basis. (The claimants had beaten a CPR 36 offer so recovered the costs of the trial on an indemnity basis). The application was refused by the Judge.</li> </ul>   <ul> <li>The claimants’ appeal to Mr Justice Richard Smith was refused in July 2023.</li> </ul>   <ul> <li>The claimants were given permission to appeal to the Court of Appeal.</li> </ul>   Grounds of Appeal   <ul> <li>The claimants’ grounds of appeal were pared down to three issues. These were identified by Coulson LJ at paras 11 & 12 as follows: ‘The first is that the trial judge misdirected herself as to the test to be applied when considering indemnity costs and/or that the absence of proper reasons in her decision was sufficient to throw real doubt on the test that she applied.’ ‘The second is that, in all the circumstances, the trial judge reached a conclusion which no reasonable judge could have reached; that the refusal to award indemnity costs to the appellants was perverse.’ ‘The third ground is identified at paragraph 18f of the appellants’ skeleton: it is said that, in Commercial and Chancery cases, the failure of allegations of fundamental dishonesty attract “a presumption” that indemnity costs will be awarded, and that the same approach should apply in personal injury cases. An element of this same submission is that such a presumption would reverse the burden of proof…It was this point of principle which led to the granting of permission to bring this second appeal.’</li> </ul>   Legal Principles   <ul> <li>Coulson LJ identified the applicable legal principles at paras 18 to 21 of the judgment: 18. On any appeal concerned with costs, a good starting point are the words of Wilson J (as he then was) in SCT Finance Ltd v Bolton [2003] 3 All E.R. 434 at [222], where he noted “the heavy burden faced by any appellant in establishing that the judge’s decision falls outside the discretion in relation to costs conferred upon him…For reasons of general policy, namely that it is undesirable for further costs to be incurred in arguing about costs, this court discourages such appeals by interpreting such discretion very widely”. The same point was made by this court in Hislop v Perde [2018] EWCA Civ 1726; [2019] 1 W.L.R. 201 at [68]. 19. It is convenient to summarise, without going to the authorities in laborious detail, the general principles applicable to the award of indemnity costs. They are: (a) The discretion to award indemnity costs is a wide one and must be exercised taking into account all the circumstances of the case, including but not limited to the conduct of the paying party: see Three Rivers DC v The Governor of the Bank of England [2006] EWHC 816 (Comm)); Digicel (St. Lucia) Limited v Cable and Wireless PLC [2010] EWHC 888 (Ch); and Excalibur Ventures v Texas Keystone & Others (No 2) [2016] EWCA Civ 1144, [2017] 1 W.L.R. 2221 at [21]. (b) In order to obtain an order for indemnity costs, the receiving party must surmount a high hurdle; to be able to demonstrate “some conduct or some circumstance which takes the case out of the norm. That is the critical requirement”: see Lord Woolf in Excelsior Commercial & Industrial Holdings Limited v Salisbury [2022] EWCA Civ 879, [2022] C.P. Rep. 67 at [32]). Whilst it is preferable for the judge expressly to apply the test of “out of the norm”, the use of the word “exceptional” may be consistent with the judge having applied the principles in Excelsior: see Whaleys (Bradford) Ltd v Bennett [2017] EWCA Civ 2143; [2017] 6 Costs L.R. 1241 at [21] (Newey LJ). (c) To the extent that the application is based on the paying party’s conduct, it is necessary to show such conduct was “unreasonable to a high degree” in order to recover indemnity costs (see Kiam v MGN Limited [2002] EWCA Civ 66; [2002] 1 W.L.R. 2810), but it is not necessary to go so far as to demonstrate “a moral lack of probity or conduct deserving of moral condemnation” on the part of the paying party (see Reid Minty v Taylor [2002] 2 All E.R. 150). (d) Merely because the conduct in question may happen regularly in litigation does not mean that such conduct cannot also be ‘out of the norm’: “in my view the word ‘norm’ was not intended to reflect whether what occurred was something that happened often, so that in one sense it might be seen as ‘normal’, but was intended to reflect something outside the ordinary and reasonable conduct of proceedings”: see Esure Services Ltd v Quarcoo [2009] EWCA Civ 595 at [25], in the judgment of Waller LJ. 20. Since the judge has such a wide discretion when it comes to costs, the courts have repeatedly made it clear that the court should avoid going beyond the CPR to identify rules, default positions, presumptions, starting points and the like, when addressing costs disputes. Lord Woolf made that point in Excelsior at [32]: “In my judgment it is dangerous for the court to try and add to the requirements of CPR which are not spelt out in the relevant parts of the CPR. This court can do no more than draw attention to the width of the discretion of the trial judge…” 21. As to allegations of dishonesty, there are many cases which demonstrate that, if a claim is found to be dishonest, the judge will very often award indemnity costs against the claimant: see Three Rivers DC at [25(5), (6) and (8)], and Esure v Quarcoo at [25] – [27].</li> </ul>   Outcome   <ul> <li>Coulson LJ addressed the third issue first. After reviewing the authorities, he roundly rejected the claimants’ submission that there was a ‘presumption’ in favour of an order for indemnity costs in these circumstances; or that an order for indemnity costs was the ‘starting point’. There was no reversal of the burden of proof.</li> </ul>   <ul> <li>At paras 29 & 30 Coulson LJ stated: 29. As to the existence of a presumption or a starting point which tilts the balance in favour of an order for indemnity costs before any consideration of the circumstances, I respectfully agree with the views expressed by the first instance judges in Clutterbuck, Natixis, Bishopsgate, and Libyan Investment, all cited above. Their analysis makes plain that there is no such presumption or reversal of the ordinary burden of proof. It will always depend on the circumstances of the particular case, and the judge retains a complete and unfettered discretion. It may be that, in an appropriate case (like Natixis), the failure might be the starting point for any consideration of those circumstances but, as Miles J noted in Libyan Investment, that does not, in some way, reverse the burden of proof, or put the burden on the paying party to explain why indemnity costs are not appropriate. Bryan J did not suggest anything of the sort in Natixis, and he applied no presumption or reversal of the usual burden. The default position is always that standard costs will be assessed and paid, unless the party seeking indemnity costs can demonstrate why they are appropriate in all the circumstances. 30. I consider that any other conclusion would fetter the court’s broad discretion in respect of costs in any given case, and would give rise to the very danger which Lord Woolf warned against at [32] of Excelsior, cited at paragraph 20 above: the court must avoid the temptation to create rules which cannot be found in the CPR. </li>   <li>Thereafter, Coulson LJ considered the two other issues in the case. He was satisfied that the Judge had not misdirected herself as to the test to be applied and had given adequate reasons for her decision. Further, the Judge reached a conclusion which was open to her; the decision was not perverse.</li> </ul>   <ul> <li>Although the appeal was dismissed, Coulson LJ gave this warning to defendants at para 28: ‘But nothing that I say there is intended to detract in any way from this statement of the obvious: that, because the making of a dishonest claim will very often attract an indemnity costs order against a claimant, a failed allegation of dishonesty will very often lead to the making of an indemnity costs order against the defendant, on the simple basis that “what is sauce for the goose is sauce for the gander”: see Tomlinson LJ in Manna v Central Manchester University Hospitals NHS Foundation Trust [2017] EWCA Civ 12; [2017] 1 Costs L.R. 89 at [42]. A defendant who makes allegations of this kind therefore runs a very significant risk that, if the allegations fail, indemnity costs will be awarded against them [My emphasis]. </li>   <li>Manna v Central Manchester University Hospitals NHS Foundation Trust was a catastrophic clinical negligence action in which the claimant had recovered substantial damages. In respect of an appeal against an order for indemnity costs, Tomlinson LJ stated at para 42: 42. I have no doubt that had the judge acceded to the defendant’s suggestion that the claimant’s case was deliberately exaggerated the defendant would have sought an award of indemnity costs. What is sauce for the goose should be sauce for the gander. I bear in mind that litigation in this field is often hard-fought. Given that litigation is necessarily adversarial, and that litigation unfortunately cannot be avoided in this field, I guard against a feeling that sometimes it is conducted in a manner inappropriate to the subject matter. I appreciate that there were here serious issues which the defendant felt needed to be explored in the manner in which they were, although as the judge records at [9] the contemporaneous records, of which there were here a large number, including in particular medical, social services and educational records, were likely to be the most reliable source of information. Looked at in the round, the judge who heard the trial, and who I might add had heard many like it, plainly concluded that what had occurred fell outside the norm, although she did not express her conclusion in precisely that manner. That conclusion will I hope rarely be reached in litigation of this kind, but I do not consider that we would be justified in interfering with the judge’s conclusion that here it properly should be. I would therefore dismiss the appellant’s appeal on this aspect also. </li>   <li>Returning to Thakkar & Ors v Mican & Anor,at paras 55 & 56 The Lady Chief Justice added: 55. I also agree and would add only this. This litigation has been characterised by parties on both sides far too ready to throw unnecessary and serious allegations against each other. In the appellants’ case, this occurred from the very outset. The appellants’ solicitors first email response to the second respondent spoke of the first respondent’s “reckless” driving; within weeks they were referring to what they described as the first respondent’s “fabrication of the truth” and “perversion of justice”, and indicating that they would be seeking to recover their costs from the respondents on an indemnity basis. 56. As the trial judge recognised, this was a relatively straightforward road traffic accident case involving conflicting witness evidence. It should have been approached by the parties as such, all in accordance with the overriding objective. The trial judge is to be commended for her attempts throughout to lower the temperature, particularly at the CCMC on 16 July 2021. As the courts have made clear repeatedly, an unnecessarily aggressive approach to litigation is unacceptable (see Excalibur Ventures LLC v Texas Keystone Inc (Costs) [2013] EWHC 4278 (Comm) at [48]; Collier v Bennett [2020] EWHC 1884 (QB); [2020] 4 WLR 116 at [13]; Bates and others v Post Office Limited [2018] EWHC 2698 (QB) at [58]). Potential costs incentives are not a good reason for making unwarranted allegations of misconduct, let alone dishonesty. The unfortunate effect of the parties’ conduct was to increase not only aggravation to an independent witness but also costs on both sides.</li> </ul>   Takeaway   <ul> <li>In my experience, there is an attitude amongst some of the judiciary that defendants allege dishonesty (and fundamental dishonesty) too regularly; and that more care is required to target those cases where the allegation is merited. Indeed, I know of one Judge who rejected a claimant’s application for indemnity costs where the defendant had failed to prove fundamental dishonesty because the allegation was made so frequently and claimants should necessarily expect it. I should add, that I do not consider this a good reason to refuse the application (see para 19 (d) of Thakkar & Ors v Mican & Anor above).</li> </ul>   <ul> <li>Where a court finds a claimant (or their claim) fundamentally dishonest, in my experience, an indemnity costs order almost always follows. By this stage, the Judge is usually critical of the claimant and a quick reference to the authorities cited at para 44.3.8 of the White Book Vol 1 is all that’s required if the claimant seeks to resist the order. The judgment of Coulson LJ is a clear warning to both parties that defendants are at a very significant risk of a similar order in the event the allegation fails. If an unproven allegation of fundamental dishonesty is pursued vigorously throughout the litigation and at trial, the prospects of a claimant securing an indemnity costs order will necessarily be improved. The judgment of Thakkar & Ors v Mican & Anor has underlined the risks for the unsuccessful defendant in these circumstances.</li> </ul>   <ul> <li>The defendant must tread a careful course: a failure to give the claimant adequate warning and proper opportunity to meet an allegation of fundamental dishonesty may prevent the defence being deployed at trial (per para 31 Howlett & Howlett v Davies & Ageas Insurance Ltd [2017] EWCA Civ 1696); though ‘vigorous’ pursuit of the allegation in an unmeritorious case brings with it the increased risk of costs sanction. Each case is of course ‘fact specific’ and as illustrated in Thakkar & Ors v Mican & Anor, an appellate court will be reluctant to interfere with the trial judge’s decision. As ever, defendants must be vigilant to identify the right cases which justify the defence of fundamental dishonesty being pursued to trial.</li> </ul>

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