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Secondary victim claims – Paul v Royal Wolverhampton NHS Trust

Written by Sophie Watson   The Court of Appeal has struck out three secondary victim claims on the basis of previous binding authority that limits the scope of such claims, whilst supporting future consideration of the claims by the Supreme Court.    <h2 class="has-medium-font-size">Background</h2>   The cases of Paul v The Royal Wolverhamptom NHS Trust (‘Paul’, Polmear v The Cornwall Hospital NHS Trust (‘Polmear’), and Purchase v Ahmed (‘Purchase’) were heard as conjoined appeals   The cases relate to a failure to diagnose the primary victims’ life-threatening conditions which resulted in their deaths.   In Paul and Polmear the close relatives witnessed the primary victim’s death and in Purchase the close relative came upon the primary victim immediately after she had died.   The main area of contention was whether there was sufficient proximity in time and space of the Claimant to the “relevant event” (i.e. the death of the primary victim) or its immediate aftermath, and where in all three cases the relevant event had occurred sometime later than the date of alleged negligence.   The Court of Appeal acknowledged that the claims otherwise satisfied the criteria to establish a secondary victim claim (set out in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (Alcock)), i.e. the Claimant fell within the category of possible secondary victims.   A number of leading authorities were considered.  However, the most crucial case was that of Taylor A.Novo (UK) Ltd [2013] EWCA Civ 194 (Court of Appeal).   In Novo the Claimant’s mother was injured at work when a stack of racking boards fell onto her. Three weeks later the Claimant’s mother suddenly collapsed and died from a pulmonary embolus which resulted from deep vein thrombosis caused by the accident. The Claimant witnessed the death of her mother but not the initial negligent course of action. Lord Dyson held that proximity was not established as the Claimant did not witness the negligent action but rather a separate event three weeks later. Lord Dyson found at [29] of his judgment that ‘… to allow [the daughter] to recover as a secondary victim on the facts of the present case would be to go too far.’   It was argued by Counsel for Paul and Polmear that Novo was an accident case as opposed to a clinical negligence case which meant it could be distinguished. However, this was rejected by the Court of Appeal who found the criteria established in Alcock applied to cases, like Novo, where there was a separate event and in clinical negligence matters where the injury manifested at a later date.     The Court of Appeal considered if the proximity requirement established in Alcock was simply applied, despite the fact the relevant event took place later than the Defendant’s misdiagnosis, it would be considered proximate as:   <ol type="1"><li>The relevant event was a consequence of the Defendant’s negligence; and</li><li>The secondary victim was either present or more or less within the vicinity of the relevant event or witnessed its immediate aftermath.</li></ol>   However, the Court of Appeal held that the current law under Novo did not permit the relevant event to be removed in time from the negligence, unless it can be a considered to be a continuum as in the case of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792.   <h2 class="has-medium-font-size">Decision</h2>   The Court of Appeal determined that it was bound by the decision in Novo, as such the claims would be struck out. However, Sir Geoffrey Vos, Master of the Rolls, expressed his concern about the interpretation of proximity for secondary victim claims and stated permission to appeal would be granted, should the Claimants seek it.   <h2 class="has-medium-font-size">Comment</h2>   Sir Geoffrey Vos was clearly unable to logically define why the proximity in clinical negligence cases must be in relation to the initial cause of action. The Court of Appeal was simply bound by precedent. The decision is likely to be appealed. It will be interesting to see what approach the Supreme Court will take and its definition of the “relevant event”   For now, it is a victory for defendants maintaining limits on those who can recover as a secondary victim. But, if the concern of Sir Geoffrey Vos is an indicator of the likely outcome in the Supreme Court, this could be short lived. Should secondary victim claims be allowed in failure to diagnose cases, it may see a vast increase in the number of those pursuing secondary victim claims against healthcare professionals.   <h2 class="has-medium-font-size">Author</h2>   Sophie Watson <a href="https://www.parklaneplowden.co.uk/app/uploads/2021/10/Sophie-Watson.jpg">(photo)</a> is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.

Special Measures in Finding of Fact Hearings: M (A Child) [2021] EWHC 3325 (Fam)

Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener">Chloe Branton</a>   <h2 class="has-normal-font-size">Introduction</h2>   This was an appeal following a finding of fact hearing within private law proceedings concerning a 2-year-old child. The mother’s 14 allegations to be determined at first instance included 3 allegations of rape. There had been no preliminary applications for special measures or consideration of the issue by the judge at first instance leading to or during the finding of fact hearing. Not all of the mother’s allegations were found proven. Subsequently the mother appealed to the High Court with different legal representation.   The judgment on appeal considered issues including: the operation of PD12J of the Family Procedure Rules 2010, the treatment of vulnerable witnesses in the family court, and participation directions/ special measures for such witnesses in proceedings. Mrs Justice Judd also discussed the new statutory provisions, including the Domestic Abuse Act 2021, which had come into force since the initial hearing.   <h2 class="has-normal-font-size">Background Facts</h2>   In around 2015 the parents met online when the mother was providing sexual services via webcam. The father was a client. The mother did not live in England, and they first met in person in 2016. The mother became pregnant in 2018, with the father being unhappy about this for a time. 4 weeks post-birth the father no longer wished to be in a relationship with the mother and they separated. The mother was very distressed, and there were arguments about the arrangements for the baby’s care and finances. In December 2019 the mother returned to her home country with the baby and without the father’s consent. This led to proceedings for their return, which the mother did in February 2020. The mother made allegations of domestic abuse against the father. A finding of fact hearing was required to determine allegations.   Within the orders listing the finding of fact hearing and timetabling there was nothing referring to Rule 3A and PD3AA. Despite the details set out within the orders as to time estimates, hybrid hearing arrangements and reading time, the orders were essentially silent as to support for the mother’s participation. There was no application for participation directions and no ground rules hearing. The mother had the assistance of an interpreter and both parents were represented. There was a substantial amount of evidence produced by the parties, including over 1000 pages of documents and numerous videos and recordings, including of sexual intercourse.   <h2 class="has-normal-font-size">Finding of Fact and Judgment at First Instance</h2>   Evidence was heard from the mother, the father, maternal grandmother, paternal grandmother, and the father’s adult son over 4 days. Judgment was reserved and handed down a week later. The judge rejected the mother’s allegations of rape and sexual abuse. The judge found that the mother had made the allegations to malign the father to improve her own application for leave to remove from the jurisdiction. The judge also rejected the father’s allegation that the mother had sought to control his time with the child, instead stating she was an anxious first-time mother.   <h2 class="has-normal-font-size">The Appeal</h2>   The mother was given permission to appeal on 2 out of the 5 grounds advanced:   “Ground 1 was the absence of special measures sought or implemented for the mother at the fact finding hearing and Ground 2 whether or not the judge balanced the evidence properly looking overall at the allegations.” [39]     The court was keen to highlight the limited role of the appellate court when considering an appeal against a finding of fact decision. The task is to determine if the judgment is sustainable. The court set out this well-established legal principle with reference to case law including Piglowska v Piglowska [1999] 1 WLR 1360. In summary, the appellate court should not interfere with findings made by trial judges unless compelled to do so. A list of reasons for this provided by Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114-115] was set out. Some of the key points are “the trial is not a dress rehearsal”, the lack of resources, and how the trial judge heard the live evidence directly.   When considering PD12J and the function of findings of fact, the court also considered the recent and important case of<a> </a><a href="https://www.bailii.org/ew/cases/EWCA/Civ/2021/448.html" target="_blank" rel="noreferrer noopener">Re H-N and Others (Domestic Abuse: Finding of Fact hearings)[2021] EWCA Civ 448</a>. A significant portion of the judgment was focused on the treatment of vulnerable witnesses in the family court.   <div class="wp-block-group"> <div class="wp-block-group"> “Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person 'is, or is at risk of being, a victim of domestic abuse', the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A.” [25].   Whilst the provision was not in force at the time of the finding of fact hearing, the court set out how there were extensive provisions (rule 3A and PD3AA) governing vulnerable witnesses in place. When determining the appeal, the court was clear that the provisions of rule 3A and PD2AA are mandatory. Also, that there could be no doubt the mother came within the category of those who might be vulnerable, given she was alleging domestic abuse and sexual abuse.   </div> </div>   <blockquote class="wp-block-quote">“It does not appear from any of the orders that the question of participation directions was considered or determined by the court. The provision that the mother and father should attend court on different days to give evidence appears from the wording to have been made in order to meet the restrictions on too many parties being in one room as a result of Covid.” [59]As addressed at paragraph 62, whilst the mother was represented throughout the proceedings, the obligation to consider vulnerability is upon the court. Wilst advocates should have reminded the judge of this, any failure or decision not to do so does not relieve the court of the responsibility it has been given under the rules.At paragraph 66 Mrs Justice Judd stated:</blockquote>   “this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished. Here, the need for directions went beyond the need to consider whether the parties should not come into physical contact in the court room or building. Matters, such as whether the mother should be visually shielded from the father as she gave her evidence, and what topics should be covered in cross examination, were highly relevant.”     The court considered points advanced on behalf of the father on how the lack of special measures cannot be said to have led to any particular difficulties with mother’s evidence. The court, however, accepted that it is not possible to know how the absence of such measures may have affected the mother. The various impacts for some witnesses were considered at paragraph 70. It is not always possible to deduce how a vulnerable witness is or will be affected when or from giving evidence What was important here was that the judge did not find the mother a credible witness and did intervene to ask the mother to answer the question asked of her.   Consequently, in relation to Ground 1, on the facts of this case Mrs Justice Judd found the failure to abide by the procedural rules to be “so serious that the decision of the court cannot stand” [71]. The case is a “stark reminder to us all that these matters need to be addressed to avoid the risk that the integrity of the trial will be undermined” [72]. Ground 1 was therefore found.   Dealing very briefly with Ground 2 (as the High Court did), Mrs Justice Judd also allowed this ground of appeal too. The judge in considering the extensive evidence filed, both paper and recordings, had acted diligently and conscientiously. The judge was sympathetic to the strain faced by judges but found the second ground too. The first instance judge’s reasoning as to the allegations of rape focused on the issues of consent and capacity rather than abusive behaviour in the wider sense, and she rejected the mother’s evidence on almost every point.   Concluding her judgment, Mrs Justice Judd emphasised that she was “not for one moment saying that there will be a different outcome at a retrial.” [86]. That will await determination as a fresh case before a Family Division Judge, with as much further delay avoided as possible. “Any new consideration of the facts or framing of the case will have to take place with a clear eye as to the evidence the court will need to come to a decision on the applications before it” [87].   <h2 class="has-normal-font-size">Take Homes for Lawyers</h2>   This case reminds advocates of the importance of effective case management and preparation before the finding of fact hearing is heard. Pre-trial reviews and ground rules hearings are essential, and issues regarding vulnerable witnesses and special measures should be raised swiftly. Whilst the court has a mandatory duty to consider vulnerability, advocates should spend time considering and discussing special measures with those clients considered vulnerable ahead of directions hearings. This was a case where special measures should have certainly been applied for, and most likely would have been granted. Whilst the mother was able to appeal post-fact finding, the special measures should have been sought i) by their representative and/or ii) granted by the judge prior to the finding of fact.    It is important to keep in mind when meeting with clients that they do not always understand what support is available or how such measures operate and could assist them. As far as is possible, time should be spent ahead of listing fact finding hearings to ensure participation directions are discussed with clients and between advocates to ensure the finding of fact is effective and fair. However, we must also remember that vulnerable witnesses may feel that the measures do not go far enough to protect and support them in court. This is an issue not touched upon by this judgment, but is a matter that should be kept in mind by all within the family system. It can be important to remind clients that some support is better than no support, no matter how meagre or limited they may think that support to be.   Finally, as was mentioned within this judgment, it can be easy in the covid-19 era to spend time considering how hearings are to be heard based purely upon protocols as to attendance at court of parties/witnesses and advocates. Advocates have become used to completing case plans regarding when and where parties will attend. However, the special measures needed to ensure a witness gives their best evidence must not be forgotten or relegated.   Author   <figure class="wp-block-image size-large is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/09/chloe-branton-pupil-15.jpg" alt="" width="150" height="200"/><figcaption><a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener">Chloe Branton</a> is a barrister specialising in both public and private children work.</figcaption></figure>

Pawley v Whitecross & Others – the Court of Appeal consider whether a Claimant can be compelled to sue a party against their wishes

Written by Sophie Watson   In the case of Jade Pawley v (1) Whitecross Dental Care Limited (2) Petrie Tucker and Partners Limited [2021] EWCA Civ 1827 the Court of Appeal recently allowed the Claimant’s appeal and found that it is not permissible to add a party as a Defendant against the Claimant’s wishes, unless the circumstances are exceptional.   Facts   The Claimant was a patient at the Defendants’ dental practice between 2012 and 2018. During this period, she was treated by 4 different dentists that she alleged had provided negligent treatment.   The Claimant issued proceedings against the Defendants, but not against the individual dentists, alleging that the Defendants’ owed her a non-delegable duty of care and were vicariously liable for the actions of the dentists.   The Claimant did not request permission to join the dentists as Defendants. The Defendants’ applied to add the dentists under CPR Part 19.   First Instance   The Judge held he had the power to join the dentists as Defendants under CPR Part 19.5 (as limitation had expired).   The Court considered the case of In re Pablo Star Ltd [2017] EWCA Civ 1768, [2018] 1 WLR 738 at [60] wherein the Master of the Rolls decided that there were ‘two lodestars’ in considering whether it was necessary to join a new party. Firstly, whether their rights may be affected by the decision in the case and, secondly, the overriding objective. She disregarded the reasoning of Coulson LJ in Milton Keynes Council v Viridor [2016 EWHC 2764 (TCC), [20166] 6 Costs LR 1041, which indicated that the court did not have the power to join a party as a Defendant in circumstances where the Claimant opposes the joinder.   The Judge held she did not have to consider whether the Claimant consented to the addition of the dentists but rather the two ‘lodestars’ identified in Pablo Star. The Judge found that the decision would impact upon the rights of the dentists and that, if the Claimant lost on the primary issues of the existence of a non-delegable duty and vicarious liability, she may then seek to bring an action against the dentists or her legal advisors. Ultimately, it was held as necessary to join the dentists as Defendants.   First Appeal   On appeal, the Judge again considered the case of Viridor and found that Coulson LJ’s dictum in respect of not adding Defendants against Claimants’ wishes was not binding.   The Judge found there was no jurisdictional bar to adding a party against the will of the Claimant, as noted at CPR Part 19.2.1. It was further decided that the provisions under CPR Part 19.2(2) did not apply because this case fell within CPR Part 19.5. Therefore, the parties seeking joinder did not have to meet the criterion that it was ‘necessary’ to add the dentists as a party.   It was held that the Court is entitled to take into account all the circumstances, including the overriding objective and the issues of delay and wasted costs if the claim was unsuccessful and second claim was brought.   The appeal was dismissed.   Second Appeal   The Claimant appealed the decision on two grounds:   <ol type="1"><li>The Court had failed to give any, or any adequate weight, to the statement in Viridor that the Claimant could not be forced to bring proceedings against Defendants and become liable for their costs; and</li><li>The Judge wrongly conflated the issues of ‘necessity’ and ‘necessary’ in that he imputed a wider power under CPR Part 19.5(4) which relied upon ‘all the circumstances, including the overriding objective’ to allow the joinder of the dentists.</li></ol>   The Claimant succeeded on ground 1.   The Court endorsed Coulson LJ’s decision in Viridor, although clarified that the rules are wide enough to allow a Defendant to be added where the Claimant opposes. However, it would still be wrong in principle for the Court to exercise this power. The Court further set out that this principle is not limited to cases where the Claimant would be potentially held liable for the Defendant’s costs.   The Court stated a person who is competent to litigate is entitled to decide who they will sue and as to what cause of action they will pursue. They found there was sound reasoning why the Claimant had chosen to sue the Defendants even if it means she is exposed to a greater risk of not succeeding.   The Court highlighted that the Defendants had an alternative route of issuing CPR 20 proceedings against the dentists.   It was acknowledged there may be exceptional circumstances in which a party is joined as a Defendant against the Claimant’s wishes.   In determining the issue of ground 2, the Court noted that there was no threshold set out under CPR Part 19.5(4) as to whether it was ‘desirable’ or ‘necessary’ to add a party. However, no findings were made on this matter given ground 1 had succeeded.   The Court did state that they had applied the threshold test of desirability which included taking into account all the circumstances and application of the overriding objective. They found this was not satisfied in this case.   Comment   Generally, future applications under CPR Part 19, without consent of the Claimant, are unlikely to succeed unless the circumstances are exceptional. CPR Part 20 will continue to offer a route by which Defendants can proceed for contribution/indemnity.    In Pawley, the claim will now proceed against the original and intended Defendants.   The appeal against the decision made in Hughes v Rattan [2021] EWHC 2032 (QB), on non-delegable duty and vicarious liability in the dental context, will likely impact upon the eventual outcome in Pawley.   The full judgment in Pawley can be found at <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2021/1827.html" target="_blank" rel="noreferrer noopener">www.bailii.org [2021] EWCA Civ 1827</a>   Author   Sophie Watson is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.   Parklane Plowden Chambers offer specialist pupillages based within either our Civil & Employment teams, our Family Team or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.   Please click <a href="https://www.parklaneplowden.co.uk/pupillages/" target="_blank" rel="noreferrer noopener">here</a> to read more if you are interested in applying for Pupillage at Parklane Plowden.

Employment law – what will 2022 bring?

Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/" target="_blank" rel="noreferrer noopener">Sarah Brewis</a>   Due to the pandemic many proposed employment law changes have been delayed, however hopefully 2022 will see some of the legislative developments that had previously been postponed finally being introduced.   Employment Bill   In December 2019 (which now seems like a very long time ago), a new Employment Bill was announced in the Queen’s Speech. The bill will incorporate the changes recommended by the Good Work Plan, which include: a new right for all workers to request a more predictable contract; a single market enforcement agency to help workers enforce their rights and support business compliance; extended protection for workers on maternity, adoption and shared parental leave, including extending redundancy protection to six months following a return to work from maternity, adoption or shared parental leave; a week’s leave for unpaid carers; making flexible working the default where an employer does not have a good reason not to allow it; new legislation mandating that organisations publish their modern slavery statements on a new government registry, and measures to encourage employers to play their part in retaining disabled workers. There was also reference in the briefing notes of the bill to the employment tribunal process being aligned with other tribunals in one unified structure. The aim of this was to address the current backlog of claims in the employment tribunals given that (as I am sure we all can attest), some claims take in excess of a year to reach a full hearing.   Whilst some progress has been made on these issues, there is as of yet little progress on the employment bill itself. The next stage, the second reading, is scheduled to take place on Friday 18th March 2022.   Workplace sexual harassment   On 21st July 2021, the government published its response to the consultation on workplace sexual harassment, which was launched in July 2019. It confirms that the government will introduce a duty on employers to prevent sexual harassment. Employers will need to show that they have current anti-harassment policies in place, together with up-to-date training for their employees. It will also introduce protection against third party harassment, such as customers and clients. The duties will be subject to an ‘all reasonable steps’ defence. It is also possible that the time limit for bringing discrimination claims to the employment tribunal will be extended from three months to six months. A new statutory code of practice will be published to support the duty to prevent sexual harassment, along with guidance for employers.   Similar to the Employment Bill, these legislative changes are likely to be implemented ‘when parliamentary time allows’.   Pay gap reporting   Since 2017 any employer with 250 or more employees has been required to comply with regulations on gender pay gap reporting. Gender pay gap calculations are based on employer payroll data drawn from a specific date each year (called the ‘snapshot date’). Due to the pandemic, enforcement of the reporting deadline for both public and private sector organisations was extended by six months to 5th October 2021. In terms of 2022, the deadlines are expected to revert back to normal timescales (with a deadline for reporting of 30th March 2022 and a snapshot date of 31st March 2022). For private sector and voluntary organisations the deadline is likely to be 4th April 2022, with a snapshot date of 5th April 2022.   However, unlike the gender pay gap, there is no legal requirement for companies to publish their ethnicity pay gap. A recent report by the Commission for Race and Ethnic Disparities recommended that the practice remain voluntary due to a lack of diversity in some parts of the country. Nevertheless a coalition of workers’ groups has called for ethnicity pay gap reporting to be made mandatory so that employers can better address pay disparities. MPs debated this issue in Parliament on 20th September 2021. In the course of the debate the government was told that unless ethnicity pay gap reporting was made mandatory for larger organisations, businesses would struggle to make the progress needed to close the pay gap.   In the meantime, some companies are taking it upon themselves to report their ethnic pay gaps. However, just 13 FTSE 100 companies did so in their most recent annual report, according to CIPD (Chartered Institute of Personnel and Development) research. Of those, ten organisations published for the first time, suggesting that greater public scrutiny of race inequalities prompted these employers to act.    Previous CIPD research has found that while most employers (77%) believe that ensuring workforce diversity is a priority, only 36% collect and analyse data to identify differences in pay and progression for employees from different ethnic groups, highlighting the need for mandatory reporting and clear guidance.    Whilst the 2020 Black Lives Matter protests led many organisations to publicly condemn racism and discrimination, few have taken steps to voluntarily disclose their ethnicity pay gap, which can play a key role in assessing if and where inequalities exist in their workforce.   As a result many organisations are calling for mandatory ethnicity pay reporting by 2023 and accordingly wise employers may see the sense in doing so before then together with gender pay gap reporting in order to boost workplace equality.   Harpur Trust v Brazel   On 9th November 2021, the Supreme Court finally heard the appeal in the Harpur v Brazel. The Court of Appeal’s decision in the case had upheld the previous decision of the Employment Tribunal and EAT that an employee employed under a permanent contract was entitled to 5.6 weeks leave, regardless of how many weeks of the year were worked. This appeared to lead to an anomaly in that a school employee employed under a permanent contract but only working for four weeks of the year would still be entitled to 5.6 weeks leave. If the appeal is successful the principle of pro-rating statutory holiday entitlement for part year workers will be re-instated.   Although the case was heard back in November, judgment is not expected to be handed down until sometime in early to mid 2022.   Author   <figure class="wp-block-image size-large is-resized is-style-default"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/09/sarah-brewis-29.jpg" alt="Sarah Brewis" width="150" height="224"/></figure>   <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/" target="_blank" rel="noreferrer noopener">Sarah Brewis</a> is an employment law specialist and is known for her sound advice and pragmatic approach to litigation.

How to approach issues of fact in clinical negligence cases

Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/hylton-armstrong/" target="_blank" rel="noreferrer noopener">Hylton Armstrong </a>   Parklane Plowden’s <a href="https://www.parklaneplowden.co.uk/our-barristers/howard-elgot/" target="_blank" rel="noreferrer noopener">Howard Elgot</a> (instructed by Hudgell Solicitors) recently successfully represented the Claimant at trial in the case of HTR (by his mother and litigation friend) v Nottingham University Hospitals NHS Trust [2021] EWHC 3228. In this article Hylton Armstrong looks at Mr Justice Cotter’s Judgment.   Background   The Claimant was born by emergency caesarean section on 10 October 2004 having suffered chronic partial hypoxia resulting in asymmetric quadriplegic cerebral palsy. The Claimant, by his litigation friend LRJ, alleged negligence on the part of a then SHO at an antenatal clinic appointment at Nottingham University Hospital 4 days earlier.   The Claimant’s case was that LRJ made it clear at the appointment that she had experienced reduced fetal movement, and that further investigations ought to have been arranged. The Defendant accepted that a maternal report of reduced fetal movement is a matter that requires further investigation, but denied LRJ raised such a concern. The case proceeded to a breach of duty only trial with the issue being a wholly factual one.   Evidence   For the Claimant, LJR and various family members gave evidence. LRJ appears to have had a relatively clear recollection of the appointment, which happened to take place on her wedding anniversary.   For the Defendant, the SHO provided 3 written statements, one of which turned out to be ‘seriously misleading’ in relation to an issue about training on use of portable US scanners. On the central issue the SHO had no recollection of the appointment, which was not surprising given the passage of time. Instead, the SHO relied on the records which included no explicit reference to reduced fetal movements, and instead appeared to confirm ‘Active FMs’.   Decision   Mr Justice Cotter found that LRJ did tell the SHO she was concerned about reduced fetal movement. In doing so he noted:   <div class="wp-block-group"> <ol type="a"><li>Records are usually of very considerable importance, but here they were only of some assistance on the central issue.</li><li>There was an important distinction between reduced movement and no movement whatsoever.  As such a record of ‘active’ fetal movement is not of itself contradictory to an expression of concern about ‘reduced’ fetal movement.</li><li>The SHO’s evidence needed to be treated with considerable causation, because of her subsequent years of practice, especially post 2011 when the emphasis on fetal movement changed to a degree. </li><li>The finding must mainly turn on an assessment of LRJ’s recollection, which was clear.</li></ol> </div>     Analysis   <div class="wp-block-group"> This case is particularly notable for two reasons.   Firstly, the claim may be one of the biggest successful contested clinical negligence liability trials in recent years, with the value being estimated by the Claimant’s lawyers to be up to £20m.   Secondly, Mr Justice Cotter’s Judgment includes an extremely useful comprehensive summary of most of the key cases concerning findings of fact in the context of clinical negligence cases.    For practitioners, below is a summary of the key cases and text referred to in Mr Justice Cotter’s Judgement, and then an attempt by me to succinctly summarise the current key/basic principles. </div>     KeyCases   Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm):   <div class="wp-block-group"> [16] While everybody knows that memory is fallible, I do not believe that the legal system sufficiently absorbs the lessons of a century of psychological research into the nature of memory and the unreliability of eye witness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other peoples' memories are unreliable and believe our memories to be more faithful then they are. Two common (and related) errors are supposed: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.   [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades over (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flash bulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flash bulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience). External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which have not happened, which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). that the more confident another person is in their recollection, the more likely their recollection is to be accurate.   [18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestion about an event in circumstances where his or her memory of it is already weak due to the passage of time.   […]   [22] The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.   Carmarthenshire County Council v Y [2017] EWFC 36   [17] In my opinion this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.   Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283   [12] It is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category. Other documents may be less obviously reliable, as when written by a person with imperfect understanding of the issues under discussion, or with an axe to grind. </div>   EW v Johnson [2015] EWHC 276   [71] I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.   HXC v Hind & Craze [2020] EWHC (QB) (5th October 2020)   [137] In my judgment a court can and often will taking a starting point, but no more than a starting point, that a contemporaneous entry made by a medical professional is likely to be a correct and accurate record of what was said and done at a consultation/examination.   Pomphrey v Secretary of State for Health & North Bristol NHS Trust [2019] EWHC QBD [2019] Med LR Plus 25:   [31] I start with some very general and basic propositions. When evaluating the evidence of a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may, but does not necessarily mean, that the rest of the evidence is unreliable. There are a number of reasons why an incorrect element has crept in. Apart from the obvious loss of recollection due to the passage of time, there may be a process of conscious or subconscious reconstruction or exposure to the recollection of another which has corrupted or created the recollection of an event or part of an event.   [32] The court must also have regard to the fact that there can be bias, conscious or subconscious within the recollection process. When asked to recall an event that took place some time ago within the context of criticism people often take an initial stance that they cannot have been at fault; all the more so if the act in question was in terms of their ordinary lives; unmemorable. There is a tendency to fall back on usual practice with the tell-tale statement being 􀀃I would have􀀄 rather than 􀀃I remember that I did􀀄.   [33] To approach the exercise of fact finding in a complex case (when faced with stark conflicts in witness evidence) as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because individual pieces of the jigsaw may be wrong, distorted to a greater or lesser degree or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do so (see generally Rhesa Shipping Co SA v Edmunds (The Popi (M) [1985] 1 W.L.R. 948). However, often a sufficient number of pieces may be fitted together to allow the full picture to be seen.   Key Principles   In an attempt to distil the case law referred to above into a simple set of key principles, I suggest:   <div class="wp-block-group"> <div class="wp-block-group"> <div class="wp-block-group"> <ol type="a" start="1"><li>The best approach is to base findings on documents and known/probable facts.</li><li>The starting point is that contemporaneous medical record are likely to be a correct.</li><li>However, records should still be given careful consideration.</li><li>This involves judging the record alongside the other evidence in the action.</li><li>Just because a document is contemporary does not necessarily mean it a reliable record.</li><li>A witness’s recollection should also be treated cautiously. </li><li>When evaluating a witness their evidence should be broken down into its parts.</li><li>If one element is incorrect it may, but doesn’t necessarily mean, the rest is unreliable.</li><li>The court must also consider that there can be conscious or subconscious bias.</li><li>People often take an initial stance, or fall back on usual practice.</li><li>In a complex case it may be impossible to fit all the pieces of the jig saw together.</li><li>However, sometimes a sufficient number of pieces can be fitted together, to allow the full picture to be seen.</li></ol> </div> </div> </div>     Author   <figure class="wp-block-image size-large is-resized is-style-default"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/09/hylton-armstrong-53.jpg" alt="" width="300" height="359"/></figure>   <a href="https://www.parklaneplowden.co.uk/our-barristers/hylton-armstrong/" target="_blank" rel="noreferrer noopener">Hylton Armstrong</a> is a specialist personal injury & clinical negligence Barrister, and head of Parklane Plowden’s clinical negligence group.

Joy Dove and (1) HM Assistant Coroner for Teesside and Hartlepool (2) Dr Shareen Rahman and Secretary of State for Work and Pensions

Written by <a href="https://www.parklaneplowden.co.uk/barristers/sophie-watson">Sophie Watson</a>.   The High Court considered whether the Department for Work and Pensions (DWP) owed a duty under Article 2 to a benefits claimant who took their own life.   Background Facts   Jodey Whiting had been receiving Employment Support Allowance since 2012, and other state benefits prior to that.   The DWP reassessed Ms Whiting’s work capabilities and gave her an appointment in person, which she missed because of pneumonia and her mental health difficulties. The DWP rejected Ms Whiting’s explanations and refused her invitation to seek evidence from her GP.   The DWP then stopped Ms Whiting’s benefits, which the family alleged had caused or contributed to her suffering severe depression, in the course of which she took an overdose of prescription medication on 21.02.17 and died.   On 24.05.17 the Assistant Coroner held an inquest into her death. The Assistant Coroner refused to examine the actions of the DWP and recorded a conclusion of suicide.   Appeal to the High Court   Ms Whiting’s mother, applied to the High Court under section 13 of the Coroner Acts 1988 for an order quashing the Coroner’s determination and requesting that a new Inquest take place on the grounds of:   <ol><li>Insufficiency of inquiry by the Coroner under common law;</li><li>insufficiency of inquiry by the Coroner under Article 2;</li><li>there was fresh evidence, namely an Investigation report documenting the numerous flaws in the DWP’s conduct and medical report making a causal link between their conduct and Ms Whiting’s suicide; and</li><li>it was likely there would be a different conclusion if the new information was placed before a different Coroner.</li></ol>   The appeal was dismissed on all 4 grounds.   Mrs Justice Farbey considered the three categories in which a state is under an “operational duty” to protect an individual under Article 2, as set out in Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72:   <ol><li>Where there was an assumption of responsibility by the state for an individual’s welfare and safety (including by exercise of control);</li><li>the vulnerability of the victim; and</li><li>the nature of the risk (i.e. if it falls outside of ordinary everyday risks).</li></ol>   The Court found that the DWP did not owe an operational duty to Ms Whiting to prevent her suicide.   Mrs Justice Farbey stated that the DWP were bound by law to allocate funds to those who met the statutory requirements. Their decisions to allocate ESA to Ms Whiting were based upon the statutory criteria alone and had no consideration of Article 2 requirements.   The applicant argued that the respondent’s failure to follow its own guidance and undertake a “safeguarding visit” following the missed appointment, gave rise to an operational duty. The Court rejected this argument on the grounds that this was only practical guidance, not law, and was not sufficient reason to extend Article 2 obligations.   The Court accepted that Ms Whiting’s physical and mental health problems made her particularly vulnerable. However, it saw no reason to depart from the decision in R (Maguire) v Blackpool and Fylde Senior Coroner [2020] EWCA Civ 738, [2021] QB 409, that there is no general obligation to prevent suicide in the absence of an assumption of responsibility. The Court made reference to the fact that Ms Whiting was not under the care or control of the state nor a minor to whom responsibility may automatically arise.   Finally, the Court found that the nature of the risk was not “exceptional” for the purposes of assuming an operational duty. It found that the risk posed to Ms Whiting by the withdrawal of her benefits did not arise from a dangerous threat to life but an ordinary hazard of life.   The Court also considered the systemic duty under Article 2 and found that there had been no breach as the failings were individual, not systemic.   Comment   The case reinforces the limited scope of the operational duty under Article 2. The starting position remains as is stated in Maguire that there is no general obligation in the absence of responsibility and that the test applied in Rabone is likely to remain the focus for future coroners to consider in similar circumstances.   It is important to note that this case relates principally to the operational duty under Article 2. The DWP, and other public authorities, remain under the primary duty to have in place appropriate systems to protect life.

Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442: “A court should still consider criticisms of an otherwise uncontroverted expert report but when such criticisms should be made is far from clear.”

The eagerly awaited judgment of the Court of Appeal in the Case of Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442 was handed down on Thursday 7th October 2021.   Written by <a href="https://www.parklaneplowden.co.uk/barristers/ian-pennock">Ian Pennock</a>.   The Ratio Decidendi (binding) of all three judges is that a court is always entitled to assess the weight of even an uncontroverted expert report to ensure the expert has provided reasons for his conclusions (a bare assertion being worthless). When the court has assessed the experts report the court is entitled to reject the experts conclusions provided it has ‘good reason’ to do so - otherwise it should normally accept such evidence and conclusions.   Obiter Dictum (non-binding) comments by Asplin LJ about the Defendant being entitled to reserve criticism of the expert report until their closing submissions (It being Obiter because the court was not deciding when any criticisms of an expert report should be made - such as with closing submissions or Part 35 Questions or cross examination) were ‘profoundly’ disagreed with by Bean LJ who considered such a tactic to be ‘Trial by Ambush’ and that Party is not just prevented from contesting the veracity of a witness to whom it has not put such a challenge to the honesty of that witness but also prevented from criticising in closing submissions a witness to whom they have not put criticisms regarding the accuracy of that witnesses evidence thereby denying that witness an opportunity to answer the same and denying the Court the opportunity to consider the witness’ response. He considered such a tactic of leaving such criticisms to closing submissions alone to be contrary to the ‘cards on the table’ approach advocated by the CPR and the overriding objective.   It is notable that despite agreeing that the judge below (Spencer J) was wrong to say a court ought not to evaluate an uncontroverted expert report Bean LJ would still have dismissed the appeal because leaving such criticisms until closing submissions was a ‘trial by ambush’ and contrary to basic principles of fairness and justice which deprived Mr Griffiths of a fair trial.   “Mr Griffiths must be wondering what he did wrong. He instructed a leading firm of personal injury solicitors, who in turn instructed an eminent microbiologist whose integrity has not been questioned. Mr Griffiths and his wife gave evidence at the trial, were cross-examined, and were found by the judge to be entirely honest witnesses. The eminent expert gave his opinion that on the balance of probabilities Mr Griffiths’ illness was caused by the consumption of contaminated food or fluid supplied by the hotel. No contrary evidence was disclosed or called, and the expert was not cross-examined. Yet the Claimant lost his case.   Asplin LJ, with whom Nugee LJ agrees, says at [65] that “as long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so”, and that she can see nothing which is inherently unfair in that procedure. With respect, I profoundly disagree. In my view Mr Griffiths did not have a fair trial of his claim. The courts should not allow litigation by ambush. I would therefore have dismissed TUI’s appeal.   Conclusion -    A court can still assess an uncontroverted expert report but should be very slow to dismiss its conclusions unless it has good reason to do so (i.e. as we have always said).    Practice Points -   Counsel - The Defendant’s practice of ‘keeping its powder dry’ for closing submissions ought to be resisted and criticised by Claimant counsel in their closing submissions noting the Defendants failure to put such criticisms to the expert by way of Part 35 questions & denying that expert an opportunity to answer the purported criticism and denying the court the benefit of the experts answer to that purported criticism - all of which is contrary to the overriding objective of ensuring a fair trial such that any purported criticisms by the Defendant of that expert in closing submissions alone ought to be given very little weight (The Defendant having denied the expert the opportunity to answer the criticism and having denied the court the opportunity to consider any response by the witness).   Solicitor - Always read and check an experts report by asking the question in relation to any conclusion within the summary of those conclusions “Have they said WHY they have come to that conclusion?” if not send it back and ask them to do so.   Also, if an expert does not answer the other sides Part 35 question properly point that out to them and ask them to reply further with a more expansive response.

Clarity Ho!! – Qualified One-way Costs Shifting (‘QOCS’) regime in Ho v Adelekun [2021] UKSC 43

<a href="https://www.parklaneplowden.co.uk/barristers/stuart-jamieson">Stuart Jamieson</a>, group co-ordinator of the Parklane Plowden <a href="https://www.parklaneplowden.co.uk/expertise/costs--litigation">Costs</a> team, analyses the significant decision of the Supreme Court in Ho v Adelekun [2021] UKSC 43 in relation to the Qualified One-way Costs Shifting regime (‘QOCS’) handed down today.   Ho provides clarification on the mechanism of the QOCS rules, specifically how these apply to competing costs orders between parties and potential set off.   Prior to today appellate authority meant that the correct approach to competing costs orders was that set off under CPR 44.12 would occur prior to enforcement under QOCS.   This circumstance can occur quite frequently, for example where a claim is successful but subject to an interlocutory or appeal costs order in favour of a Defendant or where a Claimant accepts a Part 36 Offer of settlement out of time.   The judgment of Lord Briggs and Lady Rose, with whom Lady Arden, Lord Kitchin and Lord Burrows agreed, contains an all-encompassing yet pithy and insightful consideration of the background to the introduction of QOCS.    It is recognised that there is an inherent inequality of arms in PI litigation as Defendants ordinarily have the benefit of insurance and large resources.  The old legal aid scheme and then CFAs / ATEs represent the previous ameliorating procedural schemes to address this, with QOCS the third attempt after the Jackson report identified that the previous regime may have tilted the playing field too far in favour of Claimants.   Litigants are now familiar with the QOCS regime, which is celebrating its 8th anniversary since implementation on April Fool’s Day 2013.  As part of a raft of reforms, Defendants were to forego enforcement of recovery of their own costs but not face meeting the payment of success fees or most ATE premiums inter partes.  This was One Way costs shifting that was designed to shield Claimants from having the risk of having to pay the costs of the Defendant.  It was however qualified by a monetary cap as to enforcement up to the aggregate of the Claimant’s damages and interest and with further, specific exceptions for non-PI claims (e.g. hire), vexatious, abusive claims or fundamental dishonesty where Defendant’s costs could be enforced without limit.   It is important to bear in mind that QOCS as finally enacted did encompass major differences as between the system initially set out persuasively by Sir Rupert in his Final report published in 2009.  This included that the system enacted does not inhibit or restrain the making of a costs award in favour of the Defendant in principle, subject to QOCS acting to limit enforcement.   In addressing the issue of QOCS and set off the Supreme Court recognised that if there were a large amount of damages in a case then the matter may be redundant, the Defendant can fully enforce any costs order as it will be less than the aggregate amount of damages and costs.   However, the Supreme Court identified 3 scenarios where the issue of QOCS and set off are critical: (i) a Claimant loses the claim but has a costs order in its favour, (ii) where a settlement means there is no court order for damages or interest for a Defendant to enforce its costs (as can occur in multi-Defendant actions following Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654), and (iii) costs to be paid by the Claimant to the Defendant exceeds the damages and interest awarded to the Claimant.   The background to Ho was that in Howe v MIB [2020] Costs LR 297 the Court of Appeal decided in 2017 that set off of opposing costs orders was not affected by QOCS, as it was not a mechanism of enforcement and to be applied prior to application of the QOCS rules.  The Court of Appeal in Ho were, however, critical of the outcome of Howe but felt bound to follow it.  The Supreme Court were critical of this difference of opinion and that the matter had not been addressed decisively by the Civil Procedure Rules Committee.   The facts of Ho were that Ms Adelekun had a successful PI road traffic accident claim that settled by acceptance of a Part 36 Offer and Tomlin Order at £30,000 after exiting the RTA Protocol Portal.  The initial key dispute following settlement was whether Ms Adelekun’s costs should be recovered on the fixed or more favourable standard basis.  The Court of Appeal in [2019] Costs LR 1963 finally determined that fixed costs should apply.  The costs of the assessment dispute up to the Court of Appeal were awarded in favour of the Defendant to the PI claim, Ms Ho.  The issue for the Supreme Court was whether she could set off those costs (£48,600) against the fixed recoverable costs of the claim awarded to Ms Adelekun (£16,700) prior to applying QOCS.   The importance of the issue in Ho caused APIL to appear as an intervenor, making written submissions on the potential implications for the QOCS regime.      It was agreed in Ho that following Cartwright there was no “order for damages” against which to enforce the Defendant’s costs award.  Accordingly, Ms Adelekun’s case was that she was entitled to her damages, interest and fixed costs in full and with the costs order made against her not to be enforced against her damages or costs under QOCS.  Ms Ho contended for the set off of her costs (to occur before QOCS) such as to mean that no net payment of Ms Adelekun’s costs were to be made by her, i.e. the award of £16,700 was set off and eliminated by the costs order of £48,600 for the assessment costs.   Ms Adelekun and APIL argued that to deprive the Claimant of costs for work undertaken on parts of the case where the Claimant had been successful would undermine the economic basis for PI litigation under QOCS.  Ms Ho argued that the opposite approach would encourage unmeritorious or weak application on behalf of Claimants.  The Supreme Court, rightly, evaluated that these policy considerations had limited utility.  The purpose of QOCS to re-balance the playing field had had a greater effect from cases such as Cartwright, as more claims settle than are made subject to a court order for damages in favour of a Claimant, and by the reality that Claimants who lose at trial under QOCS do not ordinarily pay any costs.     In order to determine the issue before it the Supreme Court considered the specific language of the relevant rule on the “Effect of QOCS” at CPR rule 44.14.  It was observed that, “QOCS does not seek to constrain the court from making court orders, but merely the use which defendants can make of costs orders in their favour.”     It was also explained by the Supreme Court that the QOCS regime operates mechanically.  The test is whether relevant exceptions are met rather than requiring a court to exercise a general discretion.   In undertaking its analysis the Supreme Court found that, “we would accept that QOCS is intended to be a complete code about what a defendant in a PI case can do with costs orders obtained against the claimant, ie about the use which the defendant can make of them. The defendant can recover the costs ordered, by any means available, including set-off against an opposing costs order, but only up to the monetary amount of the claimant’s orders for damages and interest.”     In what is likely to be an oft-cited passage Lord Briggs and Lady Rose set out at Paragraph 38 of Ho, “rule 44.14(1) works in the following way. First, it requires two comparators to be constructed. First, the aggregate amount in money terms of all costs orders in favour of the defendant. Secondly, the aggregate amount in money terms of all orders for damages and interest in favour of the claimant. We will call them A and B. If A is less than or equal to B, the defendant can enforce his costs orders without limit. If A is more than B, then the defendant can only enforce his costs orders up to the monetary limit of B. The effect of this cap, as we have called it, is to require the defendant to keep a running account in money terms of all costs recoveries which it makes against the claimant, and to cease enforcement when limit B is reached. [emphasis added]”   The Supreme Court then considers an example where A is at £30,000 and B is £20,000.  The Defendant could then enforce its costs order against the damages, but the Defendant cannot enforce the remaining balance of its costs entitlement of £10,000 (£30,000 - £20,000).   In undertaking this illustration the Supreme Court note, at Paragraph 41 of the Judgment, that CPR rule 44.14(1) is by reference to the aggregate amount of costs orders in favour of the Defendant, it is not by reference to the net amount after setting off opposing costs orders.  Accordingly, “Costs orders in favour of the claimant are not even mentioned in the formula, and the aggregate expressly referred to [of the Defendant’s costs awards] is a gross not a net amount.”   The Supreme Court judgment identifies that Claimant’s damages can be set off from Defendant’s costs award by operation of QOCS (A – B) but that competing costs orders are not to be treated in this way.  It is stated forcefully that any apparent unfairness in not offsetting the Defendant’s costs from those of the Claimant must be accepted as part of the overall QOCS regime.  The Jackson reforms mean that the Defendants have received other benefits, notably by not paying the large success fees and ATE premiums as in the past.  In addition, the Supreme Court highlighted that QOCS works well in the vast majority of cases where one side succeeds.   Ultimately, Ho is an excellent example of the Supreme Court acting decisively to resolve with great clarity of judgment a difficult point over the application of the costs rules and to overrule a previously criticised decision of a lower court (the Court of Appeal in Howe).   The decision will have significant implications for circumstances such as where a Claimant is considering acceptance of a Part 36 Offer out of time or a Defendant is considering an appeal where the structure of settlement, if comparable to Ho, would mean that the costs of succeeding on appeal whilst ordered in principle will not be enforceable against the Claimant.   Overall, Ho is a welcome decision that should help the continued, relative success of the QOCS regime and Jackson reforms in achieving a level playing field for PI claims, compared to the previous generations of ameliorating procedural schemes of Legal Aid and CFAs / ATE.   Stuart Jamieson and Abigail Telford will be giving a lecture on the implications and detail of Ho on Friday (8th October) as part of the Costs conference hosted by Carter Burnett in Newcastle.   Stuart Jamieson and Abigail Telford are the group co-ordinators of the Costs team at Parklane Plowden.

Thompson v Scancrown Ltd: Refusal of flexible working request amounted to indirect discrimination

Written by <a href="https://www.parklaneplowden.co.uk/barristers/jade-ferguson">Jade Ferguson</a>.   In Mrs Alice Thompson v Scancrown Ltd T/a Manors ET/2205199/2019, the Employment Tribunal (‘ET’) found that refusing an employee’s flexible working request to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination.   Background   The Claimant was employed as a sales manager by the Respondent, a small independent estate agency firm. The normal working hours of the office were 9 am to 6 pm.   On the Claimant’s return from maternity leave, she applied to modify her working hours in order to accommodate the closing time of the nursery that her child attended. She submitted a request to finish at 5pm instead of 6pm so that she could pick her child up from nursery in time.   The Respondent refused the request, detailing 5 business reasons for their decision.  When this application was refused, the Claimant resigned and filed several claims, including indirect sex discrimination.   The Law   Section 19 of the Equality Act 2010 (“the Act”) defines indirect discrimination:   “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.”   Indirect discrimination is concerned with decisions or policies which, in practice, have the effect of placing a group of people with a particular protected characteristic at a disadvantage. Sex is included as a relevant protected characteristic under the Act.   When a PCP has the effect of placing a group of people with a protected characteristic at a disadvantage, it will amount to indirect discrimination unless the employer can objectively justify the PCP. This means they have to demonstrate that the PCP is a proportionate means of achieving a legitimate aim otherwise indirect discrimination will be established.   In the present case, it was argued that the provision for sale managers to work full time 9am – 6pm, Monday to Friday, was a practice which placed women with children at a substantial disadvantage compared to men with children.   Decision   The Tribunal upheld the indirect discrimination claim and found that the Respondent’s failure to consider this flexible working request put the claimant at a disadvantage as a result of the PCP as this meant that she was unable to collect her child from nursery.   The ET also considered whether the Respondent had an objective justification for the provision. It was noted that although the recognised the Respondent’s business concerns, they did not outweigh the discriminatory impact on the Claimant.   The Claimant was therefore found to have been indirectly discriminated against on the grounds of sex and was awarded £184,961.32 for loss of earnings, loss of pension contributions, injury to feelings, and interest.   Tips for Employers   Employers are seeing sharp rise in flexible working requests since the pandemic. Although working from home is unlikely to become a strict legal right for everyone, employees who are called back into the office after having enjoyed the benefits of hybrid or remote working may turn to statutory flexible working requests. Women who are seeking flexible working for childcare reasons will have the added layer of protection from discrimination laws.   This recent judgment has reaffirmed the need for employers to carefully consider all flexible working requests. Before rejecting proposed changes, employers should not only assess their practices and business needs, but also ensure consideration is given to whether the employee making the request may have a protected characteristic and whether they are likely to suffer a disadvantage.   Points for employers to consider:   <ol><li>If the request has been refused for a business reason, can an alternative working arrangement be agreed with the employee?</li><li>Can the requested flexible working be put in place for a trial period? If a trial period is used for a reasonable length of time, the employer will be able to assess the impact of modified working arrangements on their workplace.</li><li>Employers should keep clear records of their reasoning when making decisions.</li><li>Employers should ensure they remain consistent in their treatment of flexible working requests.</li><li>Employers should consult their existing policies and practices for flexible working, which ideally will incorporate the statutory requirements and principles outlined above and from the ACAS Code of Practice.</li></ol>   A copy of the judgment can be found <a href="https://assets.publishing.service.gov.uk/media/60a375d3d3bf7f2888d19089/Mrs_A_Thompson__vs__Scancrown_Ltd_trading_as_Manors.pdf">here</a>.

Staying Away From Work Because of COVID: a Trap for Employers?

Written by <a href="https://www.parklaneplowden.co.uk/barristers/hari-menon">Hari Menon</a>. <ol style="list-style-type: undefined"> <li>Consider this scenario. Employee X, has a particular health condition which makes him especially vulnerable to contracting Covid and to the effects of Covid. There are several unvaccinated co-workers in his place of work. They are unvaccinated by choice which has nothing to do with any medical reason. X’s employer does not require employees to be vaccinated or require employees or customers to wear a face mask at the workplace. The requirements of X’s job are that he cannot work remotely. His job requires contact with his colleagues, none of whom work in compartmentalised units such as offices occupied by a single person. X stays away from work and refuses to return, citing the risk to his health caused the potential to contract Covid from by his unvaccinated co-workers and no one wearing a mask in the workplace. What are the options open to the employer and to X in response to any action taken by his employer?</li> <li>It is the duty of an employee to undertake work provided by the employer. When the employee fails to attend for work without good reason, an employer may withhold wages for the period of the employee’s absence or dismiss him. As against that, it is the employer’s duty under s.2(1) of the Health and Safety at Work Act 1974 to ensure the health, safety and welfare at work of all its employees, so far as is reasonably practicable, and failure to discharge this duty is an offence under s.33 of that Act.</li> <li>Section 44(1A)(a) of the Employment Rights Act 1996 (ERA) applies to detriment by way of non-payment of wages. Its counterpart in relation to dismissal is s.100(1)(d).</li> </ol> S.44(1)(a) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that— (a) in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work….. s.100(1)(d) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that ….. (d)         in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.   <ol start="4"> <li>Note that the danger does not actually have to be serious and imminent. It is X’s reasonable belief that matters and this will depend on the circumstances. Nor is it a requirement that the employee must have any disability or other condition that makes him particularly vulnerable to contracting Covid or to its effects. It is obvious that employees with a condition which makes them especially vulnerable to contracting Covid and to its symptoms will be in a better position to make out the reasonable belief. Whether X could reasonably have averted the danger to himself is a question of fact. Clearly, if X is say, immunocompromised and unable to take the vaccine, it may be reasonable for him to harbour the belief that it is simply a matter of time before he is exposed to a life-threatening infection in workplace where unvaccinated and unmasked colleagues and perhaps, also customers, pose a danger to him. It is also important to bear in mind that even an employer who is has no reasonable means of averting the risk to X is not given any leeway under these provisions The test is what X reasonably believed, not whether his employer had the capability to avert the danger to him or whether it was reasonably practicable for the employer to do so.</li> <li>The risks posed to the employer by a s.100(1)(d) dismissal should not be underestimated. First, reasonable belief on the part of the employee is a relatively low bar, given that there is no need to prove actual danger. Secondly, under ERA s.108(3)(c) a s.100 ERA claim does not require a qualifying period. Thirdly, except where the employee does not have the adequate qualifying years’ service, it is for the employer to prove a permissible reason for the dismissal. Fourthly, once it is shown that the reason, or a principal reason is caught by either provision, no issue can arise as to reasonableness because the dismissal is automatically unfair. Fifthly, the employee does not have to prove any disability and consequently, Equality Act 2010 considerations of proportionate means, PCPs and reasonable adjustments have no relevance. Sixthly, the fact that the employer has no reasonably practicable steps available to prevent the employee being exposed to risk in the workplace is irrelevant. Lastly, compensation for such a dismissal is uncapped – this is expressly provided for by s.124(1A) ERA.</li> <li>If it finds that the employee’s reasons for staying away from work are prima facie well-founded, a reasonable employer would take all reasonable and practicable steps to obviate or minimise the risk to the employee, including modifying the workplace or redeploying the employee. If all such options have been exhausted or are not reasonably practicable and the risk to the employee, or the employee’s fear persists , what is the employer to do? If it ceases paying the employee, it risks a detriment claim for unpaid wages. If it dismisses the employee for failing to attend work, it faces an automatic unfair dismissal claim.</li> <li>A possible way around this appears to be for the employer to treat the contract of employment as being end by frustration in that further performance of the contract is rendered impossible by supervening events . This is not a dismissal. The supervening events would be the pandemic and the employee’s reasonable belief in the danger to him in the workplace, neither of which is the fault of either party. if the employee is disabled under the Equality Act 2010 (EA) a dismissal claim under s.15 and s.20 of the EA should be anticipated, though the defence of frustration would, if successful, defeat both such claims.</li> <li>The doctrine of frustration is encapsulated in this passage from the decision of the House of Lords in Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854, 909: “There are two essential facts which must be present in order to frustrate a contract. The first essential factor is that there must be some outside or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting which either makes it impossible for the contract to be performed at all, or at least renders its performance something radically different from what the parties contemplated when they entered into it. The second essential factor is that the outside event or extraneous change of situation concerned, and the consequences of either in relation to the performance of the contract, must have occurred without the fault or the default of either party to the contract.”.</li> <li>It is important to note here that the defence of frustration will not succeed if the employer is at fault. It follows that an employer must explore all reasonable alternatives such as redeployment and re-configuration of the workplace before seeking to invoke frustration. A failure to do so would nullify the defence.</li> <li>In responding to a s.100(1)(d) claim, could the employer rely on an SOSR dismissal on the ground that the employee is unable to attend for work in circumstances, and for reasons, which the employer cannot control? The risk with relying on this is that it may be regarded as a s.100(1)(d) dismissal with a different label if it is found that the employee did, indeed, have the reasonable belief. However, it should be relied upon as an alternative in the event the employee’s reasonable belief is not made out.</li> <li>If the employee has no underlying condition, vulnerability or disability, the issue of whether he had a reasonable belief in the serious and imminent danger to him is (all other things remaining equal) likely to be more difficult to establish . It should however, not be thought that the fact that such an employee is in the same boat as his co-workers is a bar to running a s.100(1)(d) claim, or indeed its detriment counterpart in s. 44(1)(a). The fact that other workers may be prepared to put up with or overlook any such risk is not to the point. Relevant factors here will include working arrangements such as the proximity to other colleagues, any aspect or feature of his duties which places him at greater risk of infection, the prevalence of Covid infections in that workplace or locality and the extent to which government guidance is followed. This is a potentially difficult area, especially in the absence of any current appellate authorities and even so, is likely to be determined on the individual facts of a case.</li> <li>For the reasons discussed above, and apart from any obviously manufactured false claims, it is inherent in the nature of s.44(1)(a) and s.100(1)(d) claims that employers could be very much on the back foot. Such claims have the potential to become more ubiquitous and the following months will tell us whether Covid has set off a trend in yet another species of claim.</li> </ol> This article sets out the author’s views on the topic discussed. It is not a substitute for legal advice and should not be relied upon as such.     [1] Assuming that the employee harbours a genuine belief in the danger to him and is not simply using Covid as an excuse to absent himself. The latter would clearly be misconduct, but it would require an intrepid employer supported by clear evidence to rely on this. [2] By analogy with frustration where an employee cannot attend work because of imprisonment. See e.g. F C Shepherd & Co Ltd v Jerrom<a href="https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23IRLR%23sel1%251986%25year%251986%25page%25358%25&A=0.6118167050484329&backKey=20_T294126583&service=citation&ersKey=23_T294126582&langcountry=GB">[1986] IRLR 358</a>, <a href="https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23ICR%23sel1%251986%25year%251986%25page%25802%25&A=0.5628371364583555&backKey=20_T294126583&service=citation&ersKey=23_T294126582&langcountry=GB">[1986] ICR 802</a>. [3] For a somewhat benevolent (to the claimant) treatment of reasonable belief of serious and imminent danger, see the ET decision in Accattatis v Fortuna Group 3307587/2020; 6.4.21 para.49 and 50 of the Reasons. This was a claim under a different, but related, sub-section, s.100(1)(e) which contains the same reasonable belief provision.  The claimant did not have any condition which made him especially vulnerable to Covid, but Tribunal accepted that the claimant had made out his subjective belief because he had Covid-like symptoms for 3 weeks (albeit he was never diagnosed as having the virus) and had to travel by bus to work each working day.  His claim failed because the Tribunal found that (i) his additional insistence on being furloughed was not an appropriate step for the purposes of s.100(1)(e) and (ii) the real reason for the dismissal was his employer’s desire to sack him before he had the 2 years’ qualifying period for unfair dismissal.

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Secondary victim claims – Paul v Royal Wolverhampton NHS Trust

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Secondary victim claims – <em> Paul v Royal Wolverhampton NHS Trust</em>

Special Measures in Finding of Fact Hearings: <em>M (A Child) [2021] EWHC 3325 (Fam)</em>

<em>Pawley v Whitecross &#038; Others </em>– the Court of Appeal consider whether a Claimant can be compelled to sue a party against their wishes

Employment law – what will 2022 bring?

How to approach issues of fact in clinical negligence cases

Joy Dove and (1) HM Assistant Coroner for Teesside and Hartlepool (2) Dr Shareen Rahman and Secretary of State for Work and Pensions

Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442: “A court should still consider criticisms of an otherwise uncontroverted expert report but when such criticisms should be made is far from clear.”

Clarity Ho!! &#8211; Qualified One-way Costs Shifting (&#8216;QOCS&#8217;) regime in Ho v Adelekun [2021] UKSC 43

Thompson v Scancrown Ltd: Refusal of flexible working request amounted to indirect discrimination

Staying Away From Work Because of COVID: a Trap for Employers?

Latest News

Naakesha Michl joins Parklane Plowden’s Family Team

Clinical Negligence & Personal Injury | ‘Law with Lunch’ Webinar Series | February 2022

Secondary victim claims – Paul v Royal Wolverhampton NHS Trust

Special Measures in Finding of Fact Hearings: M (A Child) [2021] EWHC 3325 (Fam)

<em>Pawley v Whitecross & Others </em>– the Court of Appeal consider whether a Claimant can be compelled to sue a party against their wishes

Clarity Ho!! – Qualified One-way Costs Shifting (‘QOCS’) regime in Ho v Adelekun [2021] UKSC 43