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A Fairer Private Rented Sector

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener"><strong>Sean Kelly</strong></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Nothing new under the sun”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Government has just published its White Paper on amendments to residential landlord and tenant legislation including amendments to the Housing Act 1988 (“the 1988 Act”).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The White Paper proceeds on the premise that an assured shorthold tenancy under the 1988 Act (“an AST”) is a long-term tenancy which can be terminated by the landlord by service of a notice under section 21 of the 1988 Act (“a section 21 notice”) and that a section 21 notice can be used as a device to stifle justified complaints by tenants about the quality of the demised premises.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The White Paper includes a number of commitments to amend or replace the 1988 Act. The commitments include the following:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>It will no longer be possible to obtain an accelerated possession order following the service of a section 21 notice. This is referred to in the White Paper as <em>“Section 21 ‘no fault’ evictions”</em>. As a quid pro quo, landlords will have additional rights to seek possession for fault based upon antisocial behaviour and persistent rent arrears and have additional rights to seek possession in order to facilitate sale. The Government appreciates that these routes to possession will involve contested hearings. To deal with this, it states that it <em>“will work with the Ministry of Justice and Her Majesty’s Courts and Tribunal Service (HMCTS) to target the areas where there are unacceptable delays in court proceedings”</em>. Good luck with that.<br></li><li>Landlords will be prevented from refusing to let to tenants whose rent is paid by the DSS or who have young children.<br></li><li>Landlords will need to justify a ban on particular types of pet.<br></li><li>All landlords will be required to accept the jurisdiction of a new dedicated ombudsman in relation to disputes with their tenant.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Paragraph 3.1 of the White Paper is not drafted with precision. It states as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <em>“We will abolish Section 21 evictions and simplify tenancy structures. To achieve this, we will move all tenants who would previously have had an Assured Tenancy or Assured Shorthold Tenancy onto a single system of periodic tenancies.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The use of the word <em>“move” </em>indicates that the new regime will apply to current tenancies. This would be a unique way of amending residential landlord and tenant legislation. All previous amendments have operated prospectively for new tenancies created after a set date.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It may assist to go through how we have arrived at the present position.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Rent Acts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I started in practice in 1992 and was faced with Rent Act possessions many times in my early years.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first of the various Acts grouped under this title was passed in 1915. By 1992 the most important was the Rent Act 1977. Under the Rent Act 1977, even persistent arrears of rent was not a mandatory ground for possession. Mandatory grounds were limited to tenancies by specific types or landlord (such as owner-occupiers) to specific types of tenant (such as ministers of religion). For obvious reasons, a landlord wants to rely on a mandatory ground for possession. It does not want to incur the expense of proceeding to trial against a Legally Aided tenant, establish its case and then give the judge the opportunity to refuse to make the order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The 1988 Act</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The 1988 Act was passed because of the injury to the residential letting market caused by the Rent Acts. The problem is recorded in the 1987 Conservative Party Manifesto (being the last election fought by Margaret Thatcher), which states as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <em>“Most problems in housing now arise in the rented sector. Controls, although well-meant, have dramatically reduced the private rented accommodation to a mere 8 per cent of the housing market ...</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; First, to encourage more investment by institutions, we will extend the system of assured tenancies. This will permit new lettings in which rents and the period of lease will be freely agreed between tenants and landlords. The tenant will have security of tenure and will renegotiate the rent at the end of the lease, with provision for arbitration if necessary.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Second, to encourage new lettings by smaller landlords, we will develop the system of shorthold. The rents of landlords will be limited to a reasonable rate of return, and the tenant’s security of tenure will be limited to the term of the lease, which would be not less than 6 months. This will bring back into use many of the 550,000 private dwellings which now stand empty because of controls, as well as making the provision of new rented housing a more attractive investment.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Save for some transitional arrangements, the 1988 Act only applies to tenancies created after 15<sup>th</sup> January 1989.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As originally enacted, the default tenancy was an assured tenancy. There was no accelerated procedure for assured tenancies and claims for possession mirrored the Rent Acts in many respects. There remained mandatory non-fault grounds for possession based on status. More importantly, <em>“serious rent arrears” </em>was now a mandatory ground for possession. For a monthly tenancy, this was two months’ arrears. However, the tenant could set off any claim for damages against such arrears. Such damages could arise as a result of a breach of repair covenant or any other act committed by the landlord.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The 1988 Act created the AST being<em> “a fixed term tenancy granted for a term certain of not less than six months”</em>. Possession could be obtained under the accelerated procedure following service of a section 21 notice. An AST could only be created if the appropriate notice was served before its commencement. The landlord had to prove receipt of the notice.&nbsp; In practice, this could be difficult. I recall a judgment of DJ Buckley in Blackpool County Court in which he recited (probably with irony) that such notices were never received in Blackpool.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The creation of ASTs had the desired effect and the growth of the private rented sector can be traced to this time.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The 1988 Act as amended</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The AST became the default for new residential tenancies created after 28<sup>th</sup> February 1997. From that time, the tenant could no longer challenge possession based on a failure to serve an AST notice before commencement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The fee for an accelerated possession order is currently £355 and there is usually no hearing. Under the accelerated process, no rent arrears can be claimed. Most landlords are content to proceed in this manner.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The 2015 Act</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Deregulation Act 2015 (“the 2015 Act”) affects the ability of a landlord to obtain possession in two respects, being as follows:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>A landlord is prevented from claiming possession for 6 months after a complaint by the tenant as to the condition of the premises (referred to as a “retaliatory eviction”); and<br></li><li>A landlord was prevented from serving a section 21 notice if certain prescribed information was not served on he tenant before the commencement of the tenancy. This included various energy compliance certificates.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The 2015 Act only applies to new tenancies created after 1<sup>st</sup> October 2015.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The justification for the first restriction is repeated in the White Paper. Tenants who complain about the condition of the premises are more likely to receive section 21 notices. The justification does rely on the erroneous premise that the relationship is intended to be long-term. If a landlord is entitled to serve a section 21 notice as of right, it is difficult to see why his motivation for doing so is relevant. Statute does not need to be logical.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The justification for the second restriction was that other mechanisms to enforce compliance with the obligation to provide specified information were either ineffective or too expensive. However, depriving the landlord of a right to possession under the accelerated procedure for failure to provide information is a sledgehammer to crack a nut. Be that as it may, this requirement means that any properly advised landlord will only let through a professional agent. Only a professional agent has the administrative systems in place to prove service of the required information. This mechanism for enforcement will be lost if the proposals are implemented.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Comments on the proposals</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>Any amendment to residential tenancy legislation which applies to current tenancies is unacceptable as it is retrospective legislation. A landlord should be entitled to decide whether to let under any statutory regime. If the new regime is to apply to current tenancies, then many landlords may decide to serve section 21 notices and use the accelerated procedure before the new regime comes into force.<br></li><li>It is submitted that the use of the word <em>“evictions” </em>in the White Paper is emotive and inaccurate.&nbsp; The whole premise of the White Paper is incorrect. An AST is a fixed-term tenancy which may (if both sides want) continue beyond that fixed term. This is how the same was sold to the nation in 1987. The premises are not the <em>“home” </em>of the tenant in any normal sense of that term. The tenant has a right to live there for such term as is agreed. The ability of the landlord to make use of a section 21 notice merely reflects such agreement. The Government does not appear to understand the difficulty faced by a landlord in obtaining a contested order for possession even for the most persistent of rent arrears. I recently represented a young couple who had bought a property to let as an investment. Unfortunately, their letting agents did not serve the appropriate notices before the commencement of the tenancy and they could not serve a section 21 notice. One of four tenants never paid rent and drove the other three out. It took 18 months to obtain possession as that tenant made unfounded allegations of breach of covenant and bullying against his landlords. Their loss of rent and legal costs were so substantial that they had to sell the property after the possession order was made. In my experience a tenant who wishes to keep a roof over his head will do or say almost anything.<br></li><li>A landlord wants to achieve two things. He wants to ensure that the rent is paid on time and he wants to ensure that the premises are returned in condition which enables them to be re-let. No landlord should be entitled to select tenants based on anything other than these concerns. One tenant’s money is as good as any others. However, as a matter of logic, selection based upon ability of the tenant to pay the rent or to deliver up the premises in a proper condition must be acceptable. This is normal for commercial tenancies or assignments. It is nonsense to require a landlord to accept a tenant whose rent is paid by the DSS. There are frequent delays in DSS payments and there is no good reason why a landlord should be required to accept the deficiencies of the DSS. The tenant may lose the right to claim benefits and expect to remain rent-free. Further, as possession is now to be fault based, the landlord will want to ensure that the tenant is able to pay at least some of the costs of any claim for possession. Private landlords are not there to undertake the work of the state.<br></li><li>It is unclear why a landlord should wish to avoid letting to a family with young children.&nbsp; This is normally seen as being an advantage. Once the children are in a nursery or school which they like, the parents are not likely to want to move.<br></li><li>Pets can be a problem for landlords.&nbsp; Large dogs can make a property smell to such a degree that future tenants will be put off. Refusing to let to tenants with a large dog is not unreasonable. The White Paper contains no indication as to who will decide on the issue of reasonableness.<br></li><li>The White Paper contains little detail about the ombudsman schemes, but it is reasonable to assume that it will be akin to the Financial Ombudsman Service (“the FOS”). Although many customers assume that the FOS is biased in favour of service providers, this is not the case. The FOS is very good at determining complaints. It will obtain the full file of the service provider and go through it meticulously to reach a determination. Often, it will go behind the way in which the customer has made its complaints to seek out the real problem. The service provider effectively pays for this service. It would be very unusual for the FOS to hold an oral hearing. Determinations are based on documents. It is difficult to see how something akin to the FOS could work for residential landlord and tenant disputes. The ombudsman will not be able to inspect premises to see whether they are in repair and will not normally be able to determine issues of fact.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Questions arising from the White Paper</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The two obvious questions which arise are:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>Does the Government want to drive individual private landlords from the market?<br></li><li>How can an individual private landlord protect his position?</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>As to the first question, the starting point must be that a government intends the obvious consequences of its actions. A private landlord who can no longer rely upon the accelerated procedure is at risk that it will take time and money to remove an unsuitable tenant. This is a risk which has to be taken into account in the decision to put his property on the rental market. Tax relief on mortgage interest for buy-to-let properties is no longer available either. Many individual private landlords may well feel that there are other better investments. This happened before 1988.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As to the second question, there are letting agents who will guarantee the payment of rent and insurance products which will cover the cost of court proceedings. However, these services or products are geared at the current position and not that which applied before 1989 (or 1997). It remains to be seen whether these services or products will be cost effective. If they are, then it will ultimately be the tenants who will have to pay by way of increased rent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener">Sean</a> undertakes a broad range of chancery and commercial work with emphasis on partnerships, company law, banking, contractual disputes, land law (including land registration), landlord and tenant and administration of estates.</p> <!-- /wp:paragraph -->

ACAS Uplift? Recent Guidance

<!-- wp:paragraph --> <p><strong>Written by: <a href="https://www.parklaneplowden.co.uk/our-barristers/nicola-twine/" target="_blank" rel="noreferrer noopener">Nicola Twine</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>An uplift on an award can be significant and the prospect of an uplift a real tool in negotiations and Judicial Mediations, which are becoming more common. In the last 6 months two cases have come before the EAT providing useful and welcome guidance on assessing, firstly, whether to uplift and, secondly, the appropriate percentage uplift to compensation for failure to follow the ACAS code of Practice on Disciplinary and Grievance Procedures (the Code): <strong><em>Slade v Biggs &amp; Ors<sup>1</sup> </em></strong>and <strong><em>Rentplus UK Limited v Coulson<sup>2</sup></em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, a Tribunal has the power to increase an award of compensation (compensatory award only), by no more than 25%, if it considers that an employer has unreasonably failed to comply with the Code, and it is just and equitable to increase the award.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Whether to uplift</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Rentplus</em></strong><strong> </strong>is a case which the ET found arose from both a sham redundancy and a sham grievance process.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong><em>Rentplus</em></strong>, Ms Coulson joined the respondent, a privately funded commercial company that purchases properties rented to tenants by housing associations in 2015. Her role was varied and involved working closely with the CEO. Unbeknown to Ms Coulson, in March 2017 a decision was taken to dismiss her. A consultant was appointed at around that company who it was envisaged would replace the CEO who was outgoing. From October 2017 Ms Coulson was essentially frozen from her role. In early 2018 the respondent carried out what it described as a ‘redundancy exercise’ [9] and held consultation meetings. The ET found that these were a total sham as the decision to dismiss Ms Coulson had long since been made and there were funds available. Prior to dismissal Ms Coulson submitted a grievance. The ET concluded the process of dealing with that was just as much a sham as the redundancy [10].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET in giving brief reasons materially found:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"a"} --> <ol type="a"><li>&nbsp;That the dismissal was unfair and not for redundancy but a desire to remove Ms Coulson from her role and that was the basis upon which the consultant in fact took on the role of CEO [11];</li><li>The dismissal was not (and could not be) disguised as a capability dismissal;</li><li>There was a total failure to comply with the Code;</li><li>In relation to uplift the ET concluded that <em>‘the failures are so egregious that the Tribunal decides that an uplift in compensation of 25% is required’ </em>[12];</li><li>There were facts from which it could infer sex discrimination and that the respondent had not disproved discrimination [13]<em>.</em></li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Appeal proceeded following a rule 3(10) hearing. The grounds were that [14]:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>The ET had erred in law in concluding that an ACAS uplift should apply where the reason given for dismissal was redundancy and the reason found was discrimination;</li><li>Even if the ACAS uplift applied it was not clear which aspects of the Code were relied upon.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Appeal came before HHJ Tayler in the EAT. He helpfully set out circumstances in which the ACAS code applies and clarified that the code applies even if an employer seeks to dress up a dismissal as redundancy [34]:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>34<strong>. If an employer considers that an employee is guilty of misconduct or has rendered poor performance, I incline to the view that the Acas Code is applicable even if it said that dismissal is for SOSR because it resulted from the response of fellow employees to the misconduct or poor performance</strong> that had led to a breakdown in working relationships. However, it is not necessary to determine the point in this appeal. I consider it is clear that the applicability of the Acas Code is a matter of substance rather than form. I do <strong>not consider that an employer can sidestep the application of the Acas Code by dressing up a dismissal that results from concerns that an employee is guilty of misconduct, or is rendering poor performance, by pretending that it is for some other reason such as redundancy.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Further, that if the ET concludes there was discrimination the code is not precluded from applying [35]:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>35. <strong>In a dismissal case, the principle reason for the dismissal could be conduct or capability, but nonetheless direct discrimination would be established if it was a material factor in the treatment.</strong> An example of unconscious discrimination is where a person is genuinely thought to be guilty of misconduct or poor performance, but is not given the benefit of the doubt because of a protected characteristic, whereas the benefit of the doubt would have been applied if the person had been more like the decision maker.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>HHJ Taylor was mildly critical of the ET decision and said it would have benefitted from more detailed analysis [45], and took issue with description of breach as ‘<em>egregious</em>’ [55] stating what the ET actually meant was that ‘<em>the breach was beyond merely being unreasonable</em>’, but dismissed the Appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In dismissing the Appeal HHJ Tayler considered and set out four questions that should be asked when considering ACAS uplift (see [45]-[55]):</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Is the claim one which raises a matter to which the ACAS Code applies?</li><li>Has there been a failure to comply with the Code in relation to that matter?</li><li>Was the failure to comply with the Code unreasonable?</li><li>Is it just and equitable to award an uplift because of the failure and if so, by what percentage (up to 35%)?</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Percentage uplift</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong><em>Slade</em></strong>, Mrs Biggs and Ms Steward, were employed by the company which runs weddings and events owned by eccentric baronet Sir Benjamin Slade. In 2017 both claimants became pregnant, which the ET found Sir Benjamin deemed ‘<em>highly inconvenient</em>’ and that in response he took a decision to dispense with their services and avoid having the expense of hiring temporary staff.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In a damning ET judgment it was found that Sir Benjamin had ‘<em>decided to engineer their departure from their employment</em>’ [14] by pursuing ‘<em>a course of conduct’</em> [13] that included: failing to pay SMP, subjection to spurious TUPE transfer, ignoring grievance(s), and insisting on a formal resignation. The ET was vocal in their negative assessment of Sir Benjamin as a witness and described him as having <em>‘made wide-ranging and lurid allegations about the claimants, without any substantiation whatsoever…entirely fanciful and prompted by a desire on his part…to ‘throw some dirt’ </em>[31].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET found Sir Benjamin had discriminated against both employees on grounds of their pregnancy or maternity, and that there was a failure to consult claim and holiday pay claim, and applied the maximum 25% uplift to the compensatory award, award for injury to feelings and an aggravated damages award.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The company appealed maintaining this resulted in ‘double counting’ and that the awards were too high to be proportionate or acceptable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT, the Honourable Mr Justice Griffiths, dismissed the appeal. He described the attempt of the company to ‘<em>slice up various awards with a view to detecting any double counting</em>’ [46] an unhelpful over analysis of the ET decision, which the Court of Appeal have warned against and found that there was no obvious or significant double counting applied to the uplift of both awards.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT proposed a four-stage test [77] which tribunals might choose to apply when determining the issue of ACAS uplifts to ensure against double counting and ensure proportionality:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Is the case such as to make it just and equitable to award any ACAS uplift?</li><li>If so, what does the tribunal consider a just and equitable percentage?</li><li>Does the uplift overlap with other awards, such as injury to feelings; and, if so, what is the appropriate adjustment in order to avoid double-counting?</li><li>Applying a final sense-check, is the uplift disproportionate in absolute terms and, if so, what further adjustment needs to be made.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The case also clarified that awards for injury to feelings and for aggravated damages are taxable (under s401 ITEPA) and should be grossed up to take account of taxation [98] where they are compensation for ill treatment in connection with the termination of employment, as in index case. Further that, there can be joint and several liability in appropriate cases [83].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong><br>Both cases provide useful reference for consideration of uplifts for breach of the Code. It is worthy of note that if a party does not raise uplift when it comes to remedy there is no obligation on an ET to consider whether an uplift should be made for non-compliance with the Code (<strong><em>Pipecoil Technology Ltd v Heathcote EAT 0432/11</em></strong><em>)</em>. However, there should be readiness to deal with the issue as if the ET decides of its own motion to consider uplift, as in the author’s experience it has with litigants in person, it must give both parties an opportunity to make submissions on it.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p>1- [2021] UKEAT 2019-000687</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2- [2022] EAT 81</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/nicola-twine/" target="_blank" rel="noreferrer noopener">Nicola </a>is an employment practitioner with over 20 years experience.</p> <!-- /wp:paragraph -->

Location Location Location: An Update

<!-- wp:paragraph --> <p>On 30 March 2022 <a href="https://www.parklaneplowden.co.uk/our-barristers/amy-rumble/" target="_blank" rel="noreferrer noopener">Amy Rumble</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-dunn/" target="_blank" rel="noreferrer noopener">Robert Dunn</a> hosted a Law with Lunch event on the topic ‘<strong><em>Jurisdiction and Giving Evidence from Abroad in the ET’</em></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Much awaited <strong>Employment Tribunal Presidential Guidance on taking evidence from persons located abroad</strong> has been released today (27 April 2022) and can be found here: <a href="https://files.constantcontact.com/a61bf256301/079c8a18-8178-4988-9942-a828e619c31b.pdf" target="_blank" rel="noreferrer noopener">Presidential guidance taking oral evidence by video or telephone from persons located abroad</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In brief the guidance sets out:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>The decision of the Upper Tribunal in<em> Agbabiaka </em>is not legally binding on Employment Tribunals. Nonetheless, it is appropriate for Employment Tribunals, and the parties who appear before them, to follow the approach set out in that decision.</li><li>Why permission is needed.</li><li>The process of obtaining permission from a foreign state.</li><li>Guidance for when permission is delayed or refused.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Dementia risk and provisional damages. A recent decision

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-vonberg/" target="_blank" rel="noreferrer noopener">Tom Vonberg</a></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The decision of Mrs Justice Hill in <a href="https://www.bailii.org/ew/cases/EWHC/QB/2022/924.pdf" target="_blank" rel="noreferrer noopener"><em>Mathieu v Hinds and Aviva Plc</em></a> [2022] EWHC 924 (QB) addressed a number of difficult quantum matters which are common to brain injury litigation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was not a case in which the parties had managed a great deal to narrow the issues – at trial the Claimant’s pleaded claim was in excess of £33 million whereas the counter schedule admitted £49,500. In the event, the Judge awarded a little over £3 million. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was in the context of a Claimant who had been a 29-year-old studying for a degree in Fine Art when he was, as a pedestrian, struck by the Defendant’s moped and for which liability was admitted. His severe head injury encompassed subarachnoid haemorrhage, subdural haemorrhage and frontal lobe contusions. The Claimant thereafter suffered the typical panoply of neurocognitive issues and which were broadly agreed by the neuropsychological experts for each side.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unsurprisingly, the substance of the quantum disagreement was reflected in the approach to the future loss of earnings claim. Post-accident the Claimant had developed a successful artistic career such that the Judge found as fact that he had the potential to command six figure sums per painting sold. The loss of earnings claim was essentially based on the shortfall caused by his loss of productivity (in terms of paintings created) consequent upon his neurological symptoms.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In arriving at a lifetime multiplicand to reflect future lost sales, the Judge admirably navigated the witness evidence of fellow artists, gallery owners and art experts rather than succumb to the Defendant’s submission that there were so many uncertainties surrounding earnings potential that the only appropriate award was one made pursuant to <em>Blamire v South Cumbria Health Authority</em> [1993] PIQR Q1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The provisional damages claim</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the real interest of the decision to this writer was the Judge’s approach to the Claimant’s provisional damages claim and specifically that in relation to the claimed elevated risk of dementia as a result of the traumatic brain injury.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whereas the elevated epilepsy risk consequent upon TBI is often uncontroversial in litigation, and indeed agreed upon by neurological experts, the same cannot be said of dementia and the causal link with a TBI. Nevertheless, it has become more or less <em>de rigueur </em>for Claimant neurological evidence to identify that the risk exists hand in glove with the established risk of epilepsy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>One of the practical issues for Claimant advisors is the degree, if any, to which the existence of an apparent dementia risk should be weighed in the balance when it comes to settlement and / or a claim for provisional damages. Nor has the dearth of reported decisions on the causation issues made that task any easier.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Mathieu </em>is therefore a welcome and thorough first instance decision of the High Court at which well respected legal teams set out the competing arguments.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To recap, Section 32A of the Senior Courts Act 1981 underpins the Court’s jurisdiction to make a provisional damages award where:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><em>There is proved or admitted to be a chance that some definite or indefinite time in the future the injured person will, as a result of the act of omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Practitioners are well aware that the Claimant must meet a three-stage test if that jurisdiction is to be exercised – as first set out in <em>Wilson v Ministry of Defence</em> [1991] ICR 595 and subsequently approved by the Court of Appeal in <em>Curi v Colina</em> [1998] EWCA Civ 1326. This requires that the Claimant establish:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>That there is a (more than fanciful) chance he / she will develop the disease or deterioration in question;</li><li>That the disease or deterioration in question is serious; and</li><li>That the Court should exercise its discretion to make a provisional damages award.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>There is a welter of case law on all three issues surrounding the measure of chance, the meaning of <em>“serious”</em> and the circumstances in which the Court should exercise its discretion as opposed to making a once and for all award of damages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the pressing issue in claims for provisional damages in which the trigger event is dementia is that relating to proof of medical causation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the chance of developing the condition need only be small, the Claimant must also prove on the balance of probabilities the causal link with traumatic brain injury. To this end, while the dementia risk is now routinely advanced in such cases, to the writer’s knowledge there has not, until this case of <em>Mathieu</em>, been a fully reasoned judgment on causation as it relates to TBI and dementia.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the Claimant’s case, the parties’ respective neurology experts who were Dr Richard Orrell for the Claimant and Dr Oliver Foster for the Defendant readily agreed in the joint statement that an elevated epilepsy risk existed of between 5 to 8%. However, their co-operation did not extend to the dementia issue.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The academic papers cited by Dr Orrell drove him to the view that the Claimant’s risk of developing dementia caused by the traumatic brain injury was substantially higher than the risk to the background uninjured population – potentially 2 to 4 times higher depending on the age the condition manifested. The papers and studies relied upon were those commonly cited by expert neurologists and included Agrawal and Ford (July 2018)<a id="_ftnref1" href="#_ftn1"><sup>1</sup></a>, Barnes et al (May 2018)<a id="_ftnref2" href="#_ftn2"><sup>2</sup></a>,&nbsp; Fann et al<a id="_ftnref3" href="#_ftn3"><sup>3</sup></a> and Nordstrom and Nordstrom<a id="_ftnref4" href="#_ftn4"><sup>4</sup></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Interestingly, in addition to those familiar studies, Dr Orrell also cited a recent 2019 paper by Professor David Sharp and Dr Neil Graham<a id="_ftnref5" href="#_ftn5"><sup>5</sup></a> - two well respected and academically active neurologists at Imperial College London. Their paper claims an established link between TBI and <em>“progressive neurodegeneration and dementia”</em> and that the <em>“all-cause dementia risk is increased by around 1.5 times”</em> in cases of TBI. As was evident from her Judgement, this paper piqued the Judge’s interest but ultimately, absent the authors being called as witnesses in the trial, she did not find it tilted the balance in favour of the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the other hand, the broad thrust of Dr Foster’s position for the Defendant was that the literature was a <em>“mess”</em> and whilst he accepted that there were studies to suggest an association between TBI and dementia, he contended that this did not necessarily imply medical causation. Dr Foster also highlighted some of the criticisms regularly made of the research to date which contended that there is a causal link - including criticism of retrospective analysis, observer bias and, fundamentally, the basis on which dementia is said to have been diagnosed in patients.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Judge’s decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These were the arguments that found favour with Mrs Justice Hill. With reference to a meta-analysis of 68 research papers by Hicks et al<a id="_ftnref6" href="#_ftn6"><sup>6</sup></a> which was published relatively recently in December 2019 the Judge identified in fairly frank terms, at paragraph 334, that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><em>The Hicks teams’ conclusions surely cast significant count on those previous studies which found an association between single TBI and dementia. This is not to resort to “nihilism” as Mr Huckle said Dr Foster was doing, but to recognise that the most recent meta-analysis is itself leaving open the question of whether there is a sound scientific basis for the assertion that a single TBI can cause dementia.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>And with that, the Judge declined to find that <em>“on the current state of the science”</em>, the Claimant had established on the balance of probabilities that there was a more than fanciful chance that his brain injury would lead to him developing dementia.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant in <em>Mathieu</em> may well have lost on this issue, but what is interesting from a medico - legal perspective is that the science is in a state of development such that it is probably just a matter of time before a different Claimant runs this argument again and likely with a better quality of medical literature available to them.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In her Judgment, paragraph 333, Justice Mills highlighted that the Hicks team had expressed their hope that more robust studies in the future would <em>“help the research community in finally answering the question as to whether a TBI does indeed increase the risk of [Alzheimer disease]”</em>. Likewise the Judge speculated whether the authors of the Graham and Sharp paper were likely to take issue with the findings in Hicks as to the inconclusive nature of the causation evidence. All of which is to underscore the present uncertainty in the medical community and, therefore, amongst injury lawyers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In truth, when faced with what even Dr Orrell accepted was a wide range of opinion on the issue, one can see why the Judge approached this aspect of the claim cautiously and found that the causal link was not established for the purpose of Section 32A.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following this decision, in view of the literature as it stands, it would undoubtedly be a brave Claimant team to run a provisional damages argument based on dementia risk alone. But Defendants will not rest easy. This is far from a settled debate.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn1" href="#_ftnref1"><em><strong>1</strong></em></a><em> - Agrawal and Ford, Trouble Ahead, PI Focus, July 2018, pp.10-14</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn2" href="#_ftnref2"><em><strong>2</strong></em></a><em> - Barnes et al, Association of Mild Traumatic Brain Injury with and Without Loss of Consciousness With Dementia in US Military Veterans, JAMA Neurol 2018: 75(9): 1055-1061</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn3" href="#_ftnref3"><em><strong>3</strong></em></a><em> - Fann et al, Long-term risk of dementia among people with traumatic brain injury in Denmark: a population-based observational cohort study, Lancet Psychiatry 2018; 5: 424-31</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn4" href="#_ftnref4"><em><strong>4</strong></em></a><em> - Nordstrom and Nordstrom, Traumatic brain injury and the risk of dementia diagnosis: A nationwide cohort study, PLoS Med 15(1): e1002496</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn5" href="#_ftnref5"><em><strong>5</strong></em></a><em> - Graham and Sharp, Understanding neurodegeneration after traumatic brain injury: from mechanisms to clinical trials in dementia, Journal of Neurology, Neurosurgery and Psychiatry 2019; 90: 1221-1233</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn6" href="#_ftnref6"><em><strong>6</strong></em></a><em> - Hicks et al, Traumatic Brain Injury as a Risk Factor for Dementia and Alzheimer Disease: Critical Review of Study Methodologies, Journal of Neurotrauma 36: 3191-3219 9December 1, 2019)</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Tom has significant experience of brain injury litigation. He has acted in many cases of traumatic and acquired injury in both the personal injury and clinical negligence context. Tom has an interest in the medical issues which arise in these types of claim and he has appeared at trial in the High Court where the arguments have included the Claimant’s entitlement to claim provisional damages.</p> <!-- /wp:paragraph -->

Informed Consent Post Montgomery – &#8220;More than a signature on a form&#8221;

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unbelievably, it is now almost seven years since the Supreme Court revolutionised the legal landscape in respect of informed consent with its seminal judgment in <em>Montgomery v Lanarkshire Health Board </em>[ 2015 ] UKSC 11.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test of materiality was born.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;A doctor was now <em>“ under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments “. The test of materiality was described as </em>“ <em>whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be aware that the particular patient would be likely to attach significance to it “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It has been said that the decision encapsulated patient choice replacing the previous archaic approach of medical paternalism.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Seven Year post - A Gentle Reminder</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In assessing materiality, the Supreme Court in <em>Montgomery </em>gave the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>The assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors in addition to its magnitude : the nature of the risk , its effect on the patient’s life , the importance to the patient of the benefits sought by the treatment , the alternatives available , and the risks involved in the alternatives. It is bespoke like a Saville Row suit ; and</li><li>The doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands all the matters involved. The information provided is to be comprehensible and is not fulfilled by bombarding with technical information and/or copious brochures/literature</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Practicalities and Realities</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Duce v Worcestershire Acute Hospitals NHS Trust</em> [ 2018 ] EWCA Civ 1307, Hamblem LJ gave practical guidance from the Court of Appeal regarding the nature and extent of the duty that was involved in <em>Montgomery </em>informed consent. It is a twofold test and is succinctly set out by Hamblem LJ at paragraph 33 of the judgment as :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li><em>“ what risks associated with an operation were or should have been known to the medical professional in question . This is a matter falling within the expertise of the medical professionals ; and</em></li><li><em>Whether the patient should have been told about such risks by reference to whether they were material. This is a matter for the Court to determine. The issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone “.</em></li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Accordingly, on a case by case basis, the medical experts instructed are to deal with the risks that that should have been known or ought to have been known by the medical professional in question ( and in so doing this limb seemingly retains homage to Bolam ). In the Duce case, Hamblem LJ specified at Paragraph 42 of the judgment that whether gynaecologists were or should have been aware of the relevant risks at issue <em>“ is a matter for expert evidence”. </em>Thereafter, whether those risks should have been communicated to the patient by reference to whether they were material is a question for the court to determine.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test is replicated at Paragraph 12 of the judgment of Yip J in the subsequent case of <em>Hazel Kennedy v Dr Jonathan Frankel</em> [ 2019 ] EWHC 106 ( QB ). This is a sorry case in that the Defendant doctor had provided his diagnosis and treatment gratuitously, but it did not absolve him from his duties in respect of informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hamblem LJ repeated at Paragraph 35 of the Duce judgment , those factors relevant to determining materiality that were previously elucidated by the Supreme Court in Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Alternative treatment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Determination of materiality brings with it a need to inform not only of the risk involved in the treatment but also “ <em>any reasonable or variant treatments “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Bailey v George Elliott Hospital</em> [ 2017 ] EWHC 3398 , HHJ Worster sitting as a Deputy High Court Judge, considered what test should be applied as to whether an alternative treatment was “ reasonable “.&nbsp; He set out the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>What is a reasonable treatment option must depend upon the patient, their treatment and their prognosis. In essence, all the circumstances ;</li><li>An alternative treatment option must be within the knowledge of a reasonably competent clinician as at the relevant time, and in so doing, satisfy Bolam ;</li><li>The alternative treatment must be an accepted practice at the relevant time ; and</li><li>The alternative treatment must be an “ appropriate “ treatment and not just a “ possible “ one.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The case of <em>Mills v Oxford University Hospitals NHS Trust</em> [ 2019 ] EWHC 936 ( QB ) highlights the need to advise as to alternative treatments in addition to the risk involved in the treatment proposed. The surgeon concerned failed to advise that the procedure to be followed was “ new “ and that there was an alternative available.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the context of alternative treatment, the case of <em>Mukhtar Malik v St George’s University Hospitals NHS Foundation Trust </em>[ 2021 ] EWHC 1913 ( QB ) considered whether it was reasonable to not offer alternative treatment. In this matter, the clinician, a neurosurgeon offered further remedial spinal surgery and did not propose the alternatives of pain medication or nerve blocks. They had either not worked in the past, or would have had a very limited beneficial effect for a short duration of time. HHJ Blair QC approached the matter through the Bolam prism finding that <em>&nbsp;“ I consider that a responsible, competent, and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion …. “</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Causation</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A failure to provide informed consent still brings with it the need to establish that the failure was causative. It is not a presumptive sequitur. This is best exemplified in the case of <em>Diamond v Royal Devon and Exeter NHS Foundation Trust</em> [ 2019 ] EWCA Civ 585. The Claimant had had an abdominal hernia repaired using surgical mesh, but was not advised of the alternative of a suture repair. At first instance, HHJ Freedman held that the Claimant had not been given the appropriate information required for informed consent but that had she been so informed she would have proceeded with the mesh repair which in fact took place. The Court of Appeal approved the trial judge’s approach adopted to the question of factual causation. The court re-iterated that the but for test applies to causation in informed consent cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A recent exposition of the consideration given by a trial judge as to the facts to establish causation ( in which causation was established ) is usefully illustrated in the judgment of Stacey J in <em>Betty Plant ( by her son and Litigation Friend , Rodney Winchester ) v Mr Ahmed El-Amir and London Eye Hospital Limited</em> [ 2020 ] EWHC 2902 ( QB ).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before leaving causation, it is worth noting that at first instance in the <em>Diamond </em>case, those acting for the claimant sought a free standing right to damages to compensate for the invasion of the right to personal autonomy/choice. It failed. HHJ Freedman determined that a <em>“ mere failure to warn of a risk , without more “ </em>&nbsp;does not give rise to a free standing claim in damages. That aspect was not pursued before the Court of Appeal. The grounding of any claim in this respect is unlikely to find a renaissance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Contemporaneous Evidence</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Contemporaneous evidence is often the deal breaker in informed cases. Such cases generally tend to turn on a dispute of facts in respect of what was said in the consenting process. Accordingly, the contemporaneous medical notes are a must review in the evidential framework of consent, particularly given that the Montgomery decision recognises that each case is bespoke in its considerations. An absence of contemporaneous evidence to establish that informed consent was obtained is “ fraught with risks “. In the case of <em>Malik v St George’s University Hospital NHS Foundation Trust</em> [ 2021 ] EWHC 1913 ( QB )<em>, </em>the clinician concerned did not keep handwritten notes or typed notes of the consent consultation. HHJ Blair QC commented that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ I was taken aback by his practice of simply dictating a letter to his patient’s GP after an outpatient clinic appointment to relay the details of his patient’s current symptoms, recording his clinical assessment , giving his opinion as to appropriate treatment ( s ) but omitting to state what advice has been given about the risks and benefits of the avenue ( s ) open to the patient. This is a practice which it seems to me is fraught with risks of being unable confidently to answer important questions many years later without having the benefit of a contemporaneous set of detailed notes “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A common and sensible approach often seen by clinicians nowadays following Montgomery, is to keep a detailed set of medical notes of the informed consent process, followed by a letter to the claimant and cc’d to the claimant’s GP setting out precisely what was discussed in the informed consent consultation, focusing on treatment options, risks and alternatives. Such an approach goes a long way evidentially to negate a finding of no valid consent having been obtained.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Montgomery Consequences</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A study conducted at Queen Mary University of London : <em>“ the effect of the Montgomery judgment on settled claims against the NHS due to failure to inform before giving consent to treatment “ </em>published in March, 2020 ( by DS Wald, JP Bestwick , P Kelly in the Quarterly Journal of Medicine , DOI : HCAA082 ), gives a fascinating insight into the practical effect of the Montgomery decision in so far as claims initiated as against the NHS concerning a failure to provide informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The research established that while the rate of increase of other clinical negligence claims has remained steady, cases relating to consent have risen four times as fast since the Montgomery decision in March, 2015, and where failure to inform was added as a contributory claim, the rise was nearly ten-fold.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;Data established that as between 2005 and 2019 the NHS settled 70,000 cases of which 2,300 were linked to a failure to inform ( either primary or secondary ) with a total value of nearly £400 million. Between 2011 and 2015 , costs for settling informed consent cases rose from £25 million to £28 million per annum. Thereafter, from 2015 ( post Montgomery ) to 2019 costs rose to £62 million per annum. The rise was purely due to the increase in the numbers of claims,as the cost per claim remained steady. The study found that lawyers’ fees accounted for about 40 per cent ( £155 million ) of costs paid by the NHS in settled claims due to a failure to inform.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Professor Wald remarked that <em>“ claims involving failure to inform are normally invisible in the overall numbers of negligence claims , but the rise we have identified is striking and shows no signs of stopping. The data support concerns that lawyers are adding consent-related claims to other allegations which on their own may not be successful in court. The Montgomery ruling now makes these cases much easier to win, and the NHS is paying the bill “.</em> Professor Wald’s study is symbolic evidence of the growth in informed cases being brought post Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From the medical perspective, some five and a half years post the Montgomery decision, the GMC issued new guidance to doctors entitled “ Decision Making and Consent “. It was dated 30<sup>th</sup> September, 2020, and came into practical effect on 9<sup>th</sup> November, 2020. It replaced the GMC guidance on consent last issued in 2008. The guidance focuses on “ <em>the importance of meaningful dialogue , personalised communication and potential benefits and harms , and how doctors can support patients to make decisions with them about treatment and care “. </em>At its core are <em>“ the </em>seven principles of decision making and consent “ , and Lawrentian in their wisdom . The seven principles find their genesis and meaning in the Montgomery judgment. At the heart of the new guidance is the concept of meaningful dialogue. The new guidance translates the Montgomery decision into practical guidance for medical professionals. A central tenet is the keeping of contemporaneous medical notes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The present vista</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is clear as per the research by Professor Wald and his co-authors that the Montgomery decision has seen a rise in informed consent cases per se, or in tandem with substantive allegations of negligence. It has had a profound effect on informed consent not only from a legal but also a medical viewpoint. The decision from the perceived ivory tower of the Supreme Court has resonated throughout the day to day decisions on consent made in hospitals and GP surgeries nationwide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The crux of what represents informed consent post Montgomery is probably best summed up by the guidance given by the <em>Royal College of Physicians and Surgeons of Glasgow</em>, and which states the following:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ Despite how it can often feel in the middle of a busy clinic, or at the start of a full theatre list, consent is more than obtaining a signature on a piece of paper. It is process that is part of patient-centred care and begins with finding out what matters to the patient, identifying what options are reasonable – including the option of no treatment – and helping the patient decide which option suits them best.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>The decision the patient makes may not be the one you would have made but, if the patient has been kept at the centre of the process, it should be the right one for the individual patient at that time. When the moment comes to sign the consent form if a patient has been fully involved in the process and enabled to weigh up the different options and their benefits and risks – risks that must be transparently presented – then truly informed consent will have been given “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The precis is simple, post Montgomery consent is “ a <em>process not a signature on a form</em>“.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Jonathan Godfrey is a specialist clinical negligence barrister.</p> <!-- /wp:paragraph -->

Giving Notice – Fundamental to Alleging Dishonesty?

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the High Court case of <em>Jenkinson v Robertson </em>[2022] EWHC 791 Mr Justice Choudhury overturned a finding of fundamental dishonesty. This case highlights the need to give a Claimant adequate notice of allegations of fundamental dishonesty and provide them with sufficient time to properly respond.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By way of the background, the Claimant sustained injuries in a road traffic collision. The first instance judge found that the Claimant was dishonest in that he exaggerated his symptoms of a back injury. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was given permission to appeal on 3 grounds:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Procedural fairness: The Claimant had not been given sufficient notice/opportunity to respond to allegations of fundamental dishonesty.<br></li><li>The Judge had wrongly reversed the burden of proof, requiring the Claimant to prove that he was not fundamentally dishonest.<br></li><li>The Judge was led into error, or was wrong, in relation to each of the factors upon which he based his decision that the Claimant was fundamentally dishonest.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Judgement</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of the first ground, the Defendant relied upon correspondence which asserted that the claim was ‘<em>exaggerated and unreasonable’ </em>as evidence of putting the Claimant on notice<em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, Mr Justice Choudhury rejected that this was sufficient to equate to allegations of fundamental dishonesty and may be misconceived. He found any doubt as to the allegations could have been cleared up by pleading with specificity.<em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendant also sought to argue, in further correspondence, that they had stated that they did not consider the Claimant’s losses to be reasonable or credible. However, Mr Justice Choudhury found that ‘<em>an allegation that a claim was not credible could amount to notice of an allegation of dishonesty; but without more… it did not unequivocally amount to such an allegation’</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court also noted that the Defendant refused to provide particulars on grounds which its s.57 Criminal Justice and Courts Act 2015 (‘s.57’) application was made, even though requested to do so. Mr Justice Choudhury found that this was not a satisfactory way to pursue an allegation of fundamental dishonesty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was ultimately found that the Claimant was not given any real notice apart from a ‘<em>vague and deliberately unparticularised allusion to the possibility of a s.57 application’. </em>This had led to key documents and information failing to be placed before the Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Justice Choudhury stated that in the interests of fairness the Claimant should have been given adequate warning of and proper opportunity to deal with fundamental dishonesty given the severe consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appeal for procedural fairness was allowed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Briefly, ground 2 was dismissed on the basis that there was no real reference in the first instance judgement of the burden of proof. It therefore could not be said that the burden had been reversed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, on ground 3, it was upheld that there were substantial errors in all 3 matters which the first instance judge found fundamental dishonesty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As acknowledged in the judgement, the Defendant is not precluded from running a s.57 defence if the same is not pleaded. However, this is another case which warns against the possibility of failing to put the Claimant on proper notice of allegations of fundamental dishonesty. Without adequate notice and sufficient time for the Claimant to respond there is a real possibility that the Court could reject allegations of fundamental dishonesty. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The full judgement can be accessed at <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2022/791.html&amp;query=(jenkinson)+AND+(v)+AND+(robertson)" target="_blank" rel="noreferrer noopener">www.bailii.org - <em>Jenkinson v Robertson</em> (Rev1) [2022] EWHC 791</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a>&nbsp;is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sophie is now accepting instructions.</p> <!-- /wp:paragraph -->

<em>Hudson v Hathway</em> [2022] EWHC 631 (QB) &#8211; The end of detrimental reliance in common intention constructive trusts?

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/harriet-stacey-pupil/" target="_blank" rel="noreferrer noopener">Harriet Stacey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The seminal judgment in <em>Jones v Kernott</em> [2012] 1 AC 776 left open the deeply unsatisfactory question of the relevance and import of detriment, a question which the recent judgment of Kerr J in <em>Hudson v Hathway</em> [2022] EWHC 631 (QB) has sought to answer. Did the Court in <em>Jones </em>simply omit to refer to the requirement of detriment in establishing a common intention constructive trust as a form of judicial simplification, or was it omitted because it is not a necessary precondition in these kinds of common intention constructive trust cases? The latter interpretation of course itself begging the question – was this by virtue of it never in fact having been a requirement in these types of cases, or was <em>Jones </em>implicitly revoking its necessity?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the words of Kerr J, “must a party claiming a subsequent increase in her equitable share necessarily have acted to her detriment? Or does a common intention alone suffice to alter the beneficial shares?”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Hudson</em> posed and answered this question in confined factual circumstances, not dissimilar to those present in <em>Jones</em> – parties in a cohabiting relationship who own a shared home in joint legal names with a joint mortgage for which both are responsible, without an express declaration of trust, where there is an alleged common intention that the parties in fact agreed one party owned a greater than the presumed 50% beneficial ownership which would flow from the reasoning in <em>Stack v Dowden </em>[2007] UKHL 17.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Hudson and Ms Hathway were in a relationship from 1990 to 2009, during which time they had two children. They purchased the property known as “Picnic House” in 2007 in joint names with a joint mortgage, paid from a joint account into which both parties’ salaries were paid. Following separation, the parties discussed separation of their assets by email with Mr Hudson writing that Ms Hathway could keep the parties “liquid cash, physical property, contents of the house… and the house” if he could retain his pension and shares. Ms Hathway agreed. Mr Hudson ceased to contribute to the mortgage from January 2015.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At first instance and on appeal there was, unusually, no dispute that the parties had reached a deal in this respect. Mr Hudson, however, disputed that it amounted to an effective transfer of legal title or declaration of trust, and asserted that no constructive trust could have arisen as Ms Hathway had suffered no detriment. Ms Hathway contended that in fact she had suffered detriment through paying the mortgage alone from January 2015, desisting from claiming against assets acquired by Mr Hudson during the relationship, not claiming for financial support for the children and maintaining the property since January 2015.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First Instance</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At first instance, HHJ Ralton determined that there was a clear common intention for Ms Hathway to own the entire equity and that she had acted to her detriment but only insofar as she desisted in claiming against the assets acquired by Mr Hudson during the relationship. Whilst the judge accepted that a civil claim brought in relation to this might have been “weak” he was not convinced it was a “non-claim”, attaching significance to the particular belief the parties held that the wealth they generated during the relationship ought to be shared were they to separate in future.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Decision on Appeal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kerr J took the view that it was “striking” to find no mention of detriment in either <em>Stack </em>or <em>Jones </em>other than in Lord Neuberger’s dissent in the former at [124], particularly in view of the fact the Court in <em>Jones </em>in particular were setting out to ‘clarify and settle’ the law. He therefore concluded that it was more likely the Court made this omission because it did not need to be proved rather than that it had simply been forgotten.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kerr J was clear that the approach in <em>Jones </em>was set out in relation to cases of a specific type, namely those in which there was "a family home…bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests". The Court in <em>Jones</em> should be taken to have been stating the entirety of the law applicable to these types of cases, of which <em>Hudson v Hathway </em>was of a piece.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Equally, Kerr J noted that in his view had the Supreme Court intended to conflate the evidential approaches to the creation of a constructive trust in sole and joint name cases (as <em>Amin </em>had suggested they did) that they would have done so expressly [66].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kerr J concluded that what is required for a constructive trust to arise is evidence that demonstrates it would be unconscionable for the party denying the other’s equitable interest to do so. Unconscionability here is to be taken in “the broadest sense” [67].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kerr J took the view that in the domestic consumer context the contract-based notions of detriment arising from consideration including by way of ‘counter-promise’ are “inapposite” [70-71]. Instead, in cases of this type an express agreement as to beneficial shares <em>“can itself supply the necessary detriment or… the requirement of unconscionability, without the need to establish separately that the beneficiary has acted in detrimental reliance on or changed her position in reliance on that promise”,</em> provided that there is in fact an<em> express agreement</em> and not merely a unilateral oral declaration of trust [79].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kerr J was satisfied this followed from the principles in <em>Jones </em>wherein (to paraphrase) the agreement was sufficient to establish common intention and the common intention sufficient to establish the constructive trust [80].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Where does this leave us?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst on the face of it this decision may appear radical, Kerr J does not go so far as to <em>remove</em> the requirement of detriment. Rather he considered that the notion of what will suffice as detriment in fact includes evidence of an express agreement. At least, in the very limited factual circumstances where there is a property owned in joint names, in a domestic context and where there exists an express agreement to alter the beneficial ownership.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In truth, in cases where a claim is made that an agreement to alter shares may be inferred from conduct, the evidence relied upon to establish the agreement would inevitably overlap considerably if not entirely with that relied on to prove detriment. Why then in principle, when there is an express agreement (particularly one which both parties agree existed as in this case)should there be an additional evidential requirement before equity will give effect to that shared intention?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, it is perhaps in precisely these types of intimate relationships that the risk exists most acutely that a more dominant party might seek to abuse the trust of the other to obtain more than their presumptive 50%. If there is no requirement for detriment it may be that the Court will need to adopt a greater willingness to find that parties in fact did not reach a true accord, rather than confining the party denying an agreement to rely upon the more restrictive “undue influence” approach in order to avoid loss. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Harriet Stacey is a Family Finance Pupil</p> <!-- /wp:paragraph -->

Joint Expert discussions and the Joint Statement – Don’t get involved

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Patricia Andrews &amp; Ors v Kronospan Limited [ 2022 ] EWHC 479 ( QB )</em> , Senior Master Fontaine spelt out in no uncertain terms that instructing solicitors and the expert are not to discuss the content of the joint expert discussions and the joint statement. Each should be aware of the duties that they owed to the court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To enter into discussion risks exclusion of the expert evidence relied upon.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The matter concerned a group action by 159 residents alleging that the defendant was liable to them in nuisance due to dust, noise and odour emissions from its wood processing plant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Expert reports on dust analysis were exchanged in April, 2021 with a joint discussion as between the experts commencing the following month.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>After a period of several months ( no joint report having been finalised ) it came to the attention of the defendant’s solicitors that the claimant’s expert had been forwarding “ <em>work in progress “</em>copies of the joint statement to his instructing solicitors and that he had sent over the initial draft on an unsolicited basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The matters having come to light, the defendant made application contending that the only option to the court was to revoke the claimants’ permission to rely on their expert. It was advanced by the defendant that the expert was not truly independent but rather that he had acted as an advocate for the claimants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The expert concerned had been acting in his capacity for a period of 3 years and had incurred fees of £225,000.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Over the period in question, the claimants’ solicitors had made 68 comments on the drafts that had been sent to them, most of which were typographical, or by way of query.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was also established that the expert and the claimants’ solicitors had entered into email and telephone discussions in which the content and progress of the joint statement was discussed as between them.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Hearing</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claimants contended that the approach suggested by the defendant was potentially calamitous as it would involve significant delay in instructing another expert and result in further significant cost.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Senior Master Fontaine noted that while many comments made by the claimant solicitors were inconsequential <em>“ many others commented or made suggestions on issues of substance “.</em>The claimants’ solicitors had themselves accepted 16 comments on this premise. In sending over the first draft unsolicited , Senior Master Fontaine considered that such could only have been the case because the expert sought the solicitors views.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claimants’ solicitors accepted that <em>“ it was wrong for a expert to solicit input from their instructing solicitors during the process of drawing up a joint statement, just as it is wrong for solicitors to provide that input “ </em>&nbsp;and furthermore that <em>“ there was serious transgression of the rules by the claimants “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Senior Master Fontaine observed that her primary concern having seen the communications passing between the respective parties, was that the expert’s approach <em>“ strongly suggests that he regards himself as an advocate for the claimants , rather than an independent expert whose primary obligation is to the court “. </em>The stance draws parallels with the dicta of Black LJ in <em>EXP v Dr Charles Simon Barker [ 2017 ] EWCA Civ 63</em> ( albeit a conflict of interest case ) in which he stated that <em>“ our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the court over any other loyalty or obligation …. “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Notwithstanding that there would be difficulties in revoking the claimants’ permission to rely on the expert, Senior Master Fontaine considered that the transgressions undertaken by him and the claimants’ solicitors were such that the court had no confidence in his ability to act in accordance with his obligations as an expert witness. She further enforced the position by specifying that <em>“ the basis upon which the claimants received permission to rely on [ x ] as an expert witness , namely his duties under CPR 35.3, 35 PD paras 21 and 2.2, has been undermined “</em>. In so doing , it is also worth observing that the expert had breached those duties expected of an expert as set out by Creswell J in the quintessential case of &nbsp;<em>” Ikarian Reefer “ [ 1993 ] 2 Lloyd’s Rep 68.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Senior Master Fontaine succinctly remarked &nbsp;that it <em>“ it is important that the integrity of the expert discussion process is preserved so that the court ,and the public , can have confidence that the court’s decisions are made on the basis of objective evidence “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Albeit that the litigation process was well progressed, no trial date had been set by the court, and in the circumstances, the claimants were allowed to rely on a new expert. A distinctly cooler climate would have been felt had matters surfaced at trial, where no substitution would have been permitted.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Summary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ratio is clear. Leave well alone. &nbsp;The decision in <em>Andrews </em>highlights the importance of the objectivity and transparency involved in the joint statement discussions as between the experts. Until the joint statement has been signed off and distributed by the experts there should be no contact as between the expert and their instructing solicitors on the content of the report by way of conversation, email or otherwise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The tenor of <em>Andrews </em>repeats that said by HHJ Davies some 4 years earlier in <em>BDW Trading Ltd v Integral Geotechnique ( Wales ) Ltd [ 2018 ] EWHC 1915 ( TCC )</em>, in which he stated that “ <em>the expert should not ask solicitors for their general comments or suggestions on the content of the draft statement “.</em> As a solicitor, if approached as to the content of a joint report, a polite no and a clarification of the duties owed to the court will suffice. As was said by Fraser J in <em>Imperial Chemical Industries Ltd v Merrit Merrall Technology Ltd [ 2018 ] EWHC 1577 at [ 237 ] :</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>&nbsp;“ the principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them.If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts in stake and in any particular case, and is a foundation stone of expert evidence “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a> is a specialist clinical negligence and personal injury barrister at Parklane Plowden.</p> <!-- /wp:paragraph -->

Looking into a crystal ball &#8211; Do I have the evidence to consider a Part 36 offer? The decision in <em>Equitix Eeef Biomass 2 Ltd v Fox &#038; Ors </em>[ 2021 ] EWHC 2781 (TCC ) would probably say yes!

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In any situation where a Part 36 offer has been made there are decisions to be made as to its appropriateness or otherwise. In the situation where an offer has been made, but the offeree feels that it does not have all the information to make a totally informed decision on its appropriateness, it can be a dilemma. The decision of Mr Justice Kerr in Equitix Eef Biomass 2 Ltd v Fox &amp; Ors [ 2021 ] EWHC 2781 ( TCC ) has further compounded the dilemma and reinforced the approach adopted by the court in such circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Equitix</em>, the case had proceeded to trial and the claimant had achieved judgment in the sum of £11 million.&nbsp;During the course of proceedings, the claimant had made a Part 36 offer of just shy of £5.5 million on 25<sup>th</sup> January, 2021. An enhanced rate of interest was applied to the damages awarded due to the Part 36 offer being beaten, from the date following the requisite acceptance of the Part 36 offer. The Defendants contended that they had not been able to make an assessment of the offer that had been made until such time as Equitix’s expert’s 2<sup>nd</sup> report was served on 22<sup>nd</sup> March, 2021. They proposed that enhanced interest should only apply from that date. &nbsp;Kerr J roundly rejected the argument. In addressing matters in his judgment, he said [ 25 ] :</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ I reject the defendants’ contentions. As to the first part, parties frequently face the pressure of a Part 36 offer without all of the pieces of the jigsaw in place. Much of the purpose of Part 36 would be lost if it were otherwise ; the costs which the regime was intended to prevent being incurred, would have to be incurred before the normal consequences of the offer could flow</em>. <em>A well judged Part 36 offer is often based on inspired and educated guesswork , which the other party must also display when deciding whether to accept it</em> “.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kerr J went on to continue at [ 26 ] that <em>“ part of the incentive to settle is “ upping the ante “ consideration that a recipient of the offer may pay dearly for not accepting it, if it is beaten at trial “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Should we be surprised by the approach adopted by Kerr J to the Part 36 offer ? In truth, no. Perhaps as to the comprehensive nature of the language used , particularly that part I have underlined, but in reality, the approach adopted by Kerr J is the approach that has been adopted by the courts throughout. The courts have not adopted a laissez-faire attitude to Part 36 consideration with a paucity of evidence available.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In Briggs v CEF Holdings Ltd [ 2017 ] EWCA 2363 ( Civ ) the Court of Appeal emphasised the position that where a Part 36 offer is made where an assessment of value is not properly achievable, the fact that it is a difficult equation to solve does not normally act as a reason for displacing the normal Part 36 basis for costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Briggs </em>, the claimant who had been injured in 2010, issued proceedings. In September, 2012, the defendant made&nbsp; a Part 36 offer in the sum of £50,000. Having eventually completed obtaining expert reports and evaluation the claimant accepted the offer.&nbsp; The claimant sought an order that the defendant pay its costs up until October, 2014. They were successful at first instance, but the matter was taken by the defendant to appeal. The judge at first instance had ruled that the medical uncertainty until October, 2014 made it appropriate to make a different order to the norm. The Court of Appeal disagreed. Goss LJ remarked that <em>“ it is very important not to undermine the salutary purpose of Part 36 offers “. </em>He took into account that all cases are fact specific but highlighted that the general rule that emerges from Part 36 , is that if the offer is not accepted within the requisite time then the claimant bears the costs of the defendant until such time as the offer is accepted. The general rule can only be displaced if the offeree can show injustice “ <em>but it is up to the offeree to show injustice, not simply that it may have been difficult to form a view as to the outcome of litigation “. </em>&nbsp;Goss LJ considered that the more appropriate action for the claimant to have taken had it considered it did not have the necessary evidence at hand would have been to apply for a stay of the action at the time of the offer and that a stay might in many cases <em>“ justify [ ies ] displacing the usual rule “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The approach adopted by the courts can be further viewed in the decision of Mrs Justice Lambert in Campbell v the Ministry of Defence [ 2019 ] EWHC 2121 ( QB )<em>. </em>This was a personal injury case in which liability had been admitted. In January, 2018 the defendant made a Part 36 offer of £100,000, and extended for acceptance until 19<sup>th</sup> February, 2018. It was eventually accepted by the claimant on 22<sup>nd</sup> March, 2019, some 13 months after the time limit for acceptance had expired. The claimant sought an order that costs be awarded to him up until 19<sup>th</sup> February, 2018, with no order for costs thereafter, as to do otherwise would have been unjust. The claimant had contended that it was unjust for the normal costs order to be made as it was not in a position to properly quantify the case at the time that the offer was made. The claim included a claim for loss of earnings , the value of which depended upon the claimant’s acceptance or otherwise for an officer’s commission not known until October, 2018.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lambert J went back to the basics set out in CPR 36.13 ( 4 ), at ( b ) , which provides that as in the instant case, a Part 36 offer relating to a whole claim if accepted after the expiry of the relevant period , the liability for costs must be determined by the court, unless the parties agreed. Costs not being agreed under CPR 36.13 ( 5 ), the court must <em>“ unless it considers it unjust to do so “ , </em>order that the offeree be awarded costs up to the date that the relevant period expired, but that the offeree thereafter should bear the offeror’s costs from the end of the relevant period until acceptance. In considering whether the normal rule would produce an unjust outcome, the court is required under CPR 36.13 ( 6 ) to take into account all the circumstances of the case, and including those matters set out in CPR 36.17 ( 5 ). Only if the court concludes that it is unjust will it go on to determine the alternative order under CPR 44.3.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lambert J set out that in consideration of matters the court must guard against making any exception from the norm <em>“ on the grounds that the regime itself is harsh or unjust but must find something about the particular circumstances of the case which takes it outside the norm “.</em> Adopting the stance of Goss LJ in <em>Briggs ibid</em>, Lambert J reminded herself that the salutary purpose of Part 36 was to promote compromise and avoid the unnecessary expenditure of costs and court time. She continued that the burden was on the offeree to show injustice, and that <em>“ uncertainties of litigation do not render it unjust for normal costs order to operate “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In her judgment, Lambert J readily accepted that at the time that the Part 36 offer expired , the evidence concerning the claimant’s prospects of promotion were incomplete. She then went on to say :</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ However, in personal injury claims as in other litigation, offers to settle are often made at an early stage when the evidence is incomplete ( either in liability or quantum or both ). In these circumstances, it is the job of the claimant’s advisors to weight up the merits of the Part 36 offer and give the claimant appropriate advice. I accept that the exercise involves judgment and experience, but here, the claimant had the benefit of specialist personal injury lawyers with a sub-specialisation in military claims. As such they were in as good a position as any advisor to evaluate the claimant’s career prospects and to give him advice on the offer “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Had the claimant’s advisors in considering the offer determined that the prospects were so uncertain as to make any evaluation wholly speculative, then the appropriate action considered by Lambert J would have been to apply for a stay of the action pending the determination of the Commission Board. In failing to do so, the claimant continued the litigation at his own costs risk. Lambert J found in the circumstances of the case she did not find that it would be unjust to make an order reflecting the normal consequences of a late acceptance of a Part 36 offer. The offer to settle <em>“ was not a tactical offer but represented a serious attempt to resolve the claim “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There have been decisions where the courts have considered that the “ <em>the other side of the factual line has been crossed “</em> so as to allow for a departure from the normal order, most notably in SG ( a Minor ) v Hewitt [ 2012 ] EWCA Civ 1053, and more recently, <em>Momonakaya v the Ministry of Defence</em> [ 2019 ] EWHC 480 ( QB ). Notwithstanding these cases, the <em>Equitix </em>case has restated in the strictest terms and the most evocative language the courts position in relation to the consideration of a Part 36 offer. Although all the pieces of the jigsaw may not be in place the expectation is that “ inspired and educated guesswork “ can enable an&nbsp; informed decision to be made. While there may be some cases where the courts will exercise their discretion to depart from the normal order, in order to convince such a departure the party concerned will need to demonstrate that it would be unjust to apply the normal court order as the circumstances take it outside the norm. Where after consideration there is a decision that there is a paucity of evidence to allow for a proper evaluation of a claim, the more considered approach would be to apply to the court for a stay of proceedings in order to enable the provision and consideration of the evidence required. To merely sit back and take a decision after the obtaining of the necessary evidence is a risky tactic. <em>Equitix </em>is the latest in a Part 36 jurisprudence of cases where it has been established that legal advisors can apply instinct to consideration of value notwithstanding the lacuna in the totality of the evidence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>J<a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">onathan</a> is a specialist clinical negligence and personal injury barrister at Parklane Plowden.</p> <!-- /wp:paragraph -->