<!-- wp:paragraph --> <p><strong>Kindertons Limited v (1) Georgina Murtagh (2) Esure Services Limited [2024] EWHC 471 (KB)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>This case concerns a non-party costs order made against a &nbsp;credit hire company, Kindertons Limited (“Kindertons”), in favour of an insurer, Esure Services Limited (“Esure”) and is a <strong>High Court decision</strong> by <strong>Turner J</strong>, handed down on 5 March 2024.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>On 20 February 2019, a minor collision occurred when Georgina Murtagh carelessly drove her Volkswagen Polo into gentle contact with the rear of Serhat Ibrahim’s Audi A5.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Mr Ibrahim’s claim for the costs of repairs was in the sum of £2,543.80.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Two days after the accident, a representative by the name of Rachel telephoned Mr Ibrahim to discuss providing him with a replacement vehicle.&nbsp; During the telephone conversation, Mr Ibrahim described the damage to his vehicle as: “…not a lot of damage.&nbsp; It’s just the back bumper.&nbsp; It looks a bit out of line…”.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Notwithstanding his modest description of the damage, Mr Ibrahim was readily persuaded that he should not be driving the car and that he ought to hire an alternative from Kindertons.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A report later provided by JP Morris assessors on behalf of Kindertons concluded that Mr Ibrahim’s Audi had suffered no damage in the accident that would have rendered it unroadworthy.&nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Rachel told Mr Ibrahim that if the other driver’s insurer, Esure, should offer to provide him with a less expensive alternative hire car he should “just tell them Kindertons are dealing with the claim and end the call from there”.&nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>On 23 February 2019, Mr Ibrahim entered into a credit hire agreement with Kindertons for the hire of a Jaguar XF (later replaced with a Mercedes Benz C250 on the same terms) at a rate of £345.08 per day.&nbsp; The period of hire was 33 days.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Also on 23 February 2019, Mr Ibrahim entered onto a credit hire agreement with Kindertons in respect of repair, recovery and storage facilities.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>On 25 February (two days after the initial hire period commenced and before Mr Ibrahim entered into the second hire agreement) Esure sent him a letter offering an alternative replacement vehicle at no cost at all to him but at a cost to Esure of £63.45 per day.&nbsp;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The claim</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Proceedings were brought by Mr Ibrahim and his wife, Sylvia, against Miss Murtagh limited to £20,000.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>All but £50 of Mr Ibrahim’s special damages claim arose under the credit agreements.&nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>In addition, both Mr and Mrs Ibrahim claimed general damages in respect of personal injury, the combined value of which could not have exceeded £3,192.25 having regard to the value of Mr Ibrahim’s special damages claim and the overall claim limit.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Miss Murtagh denied liability and the matter proceeded to a fast track trial.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The trial</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The matter came before Mr Recorder Berkley KC, who found that whilst he was satisfied that a collision had occurred, (i) the damages claimed in respect of the repairs and hire charges had not been caused in the accident; (ii) Mrs Ibrahim was not in the vehicle at the time; (iii) both Mrs Ibrahim and her husband had been fundamentally dishonest in saying that she had been.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Mr Ibrahim did not take up the offer.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Mr and Mrs Ibrahim were ordered to pay Miss Murtagh’s costs in the sum of £12,000.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Mr Ibrahim promptly disappeared, leaving the costs bill unpaid.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The non-party costs claim</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Esure applied for a non-party costs order (“NPCO”) against Kindertons.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The application ought to have been heard by Mr Recorder Berkley KC but instead came before Mr Recorder Gallagher.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Para. [29]: “It is regrettable that the trial judge did not hear the costs application and that neither side took the issue below.&nbsp; <strong>Particular care should be taken not to list NPCO applications to be heard by a judge who did not sit on the trial without a compelling reason</strong>.”</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The decision below</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The parties agreed that the Recorder had the power to make a NPCO.&nbsp; <strong>The issue was whether he should have exercised his discretion to exercise that power in the circumstances of the case</strong> (para. [30]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The statutory foundation of this power is to be found in <strong>section 51(3)</strong> of the <strong>Senior Courts Act 1981 </strong>which provides as follows: <em>“(3) The court shall have full power to determine by whom and to what extent costs are to be paid”</em>.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Recorder correctly referred to <strong>CPR 44.16(2)</strong> as identifying the circumstances in which an NPCO can be made in the context of Qualified One-way Costs Shifting [QOCS].&nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>In addition, <strong>CPR 44 PD 12</strong> was noted to provide that <em>“[e]xamples of claims made for the financial benefit of a person other than the claimant…within the meaning of rule 44.16(2) are subrogated claims and claims for credit hire…”</em> and to state at para. 12.5(b) that <em>“the court may, as it thinks fair and just, determine the costs attributable to the claims for the financial benefit of persons other than the claimant”</em>.&nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Noting that Mr and Mrs Ibrahim were found to have no viable residual claims which might have been sustained if not for the finding of fundamental dishonesty, the Recorder found that the claim included a claim which was made for the financial benefit of Kindertons and awarded Esure 80% of their costs against Kindertons.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Dismissing the appeal on all grounds…</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The whole purpose of Kindertons providing credit hire facilities is to make a commercial profit out of the client’s legal claim (para. [39]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Kindertons stood to gain substantially from the claim brought in Mr Ibrahim’s name and the price of the services they provided under the contracts with Mr Ibrahim very significantly exceeded the value of the personal injury and “undocumented miscellaneous expenses” claims brought by him and his wife (para. [42]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It followed that Kindertons had a very strong financial stake in the litigation and that <strong>“any benefit to Mr Ibrahim in pursuing the claim for hire charges was all but illusory”</strong> (para. [43]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>In relation to the contention that there was no proper basis for the judge’s finding that the appellant controlled the litigation, the court stated: <strong>“There is a danger that the concept of “control” is wrongly treated as if it were a traffic light, governing the exercise of the court’s discretion to make a non-party costs order</strong>, which is showing either red or green.&nbsp; Control is almost invariably a matter of degree.&nbsp; <strong>As a concept, it is relevant to the extent that, in any given case, the greater the level of control exercised by the non-party the more likely it will be that the court will exercise its discretion in favour of making a NPCO”</strong> (para. [44]). &nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The court quoted, with approval, <em>Deutsche Bank AG v Sebastian Holdings [2016] 4 W.L.R.</em> at para. 62: “We think it important to emphasise that <strong>the only immutable principle is that the discretion must be exercised justly</strong>.&nbsp; It should also be recognised that, since the decision involves an exercise of discretion, <strong>limited assistance is likely to be gained from the citation of other decisions at first instance in which judges have or have not granted an order of this kind</strong>” (para. [45]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>On the facts of the case, there was a high degree of control: “The contractual terms identified above tied Mr Ibrahim into bringing a claim and continuing it at the risk of incurring serious financial consequences in the event that he were to fail to comply. <strong>It matters little, if anything, that such consequences were not, in the event, visited upon Mr Ibrahim. It is the threat and not the execution of repercussions which forms the usual basis for control</strong>” (para. [46]). &nbsp;&nbsp;Furthermore, by reference to the phone call between Mr Ibrahim and Rachel, the court was satisfied that Kindertons “wished to choreograph the progress of the litigation to preclude [Esure compromising the interests of Kindertons]” (para. [47]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>In respect of Kindertons’ contention that Esure needed to have established that Kindertons’ involvement resulted in them incurring more costs in the litigation than they would have done in any event (the “but for” test), the court held that <strong>there is no generally applicable guidance on causation applicable to all NPCO applications</strong> and that Lord Briggs in <em>XYZ v Travelers Insurance Co Ltd [2019] 1 W.L.R. 6075</em> was not intending to lay down any such guidance (paras. [51-52]).&nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>The position of Kindertons was different to liability insurers</strong>.&nbsp; It “involved itself voluntarily and enthusiastically in the claims after the accident giving rise to it”.&nbsp; <strong>Its involvement was “a matter of choice in the expectation of profit specifically related to the legal proceedings to follow”</strong> (para. [54]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The intermeddler cases to which Lord Briggs referred in <em>Travelers</em> fell to be distinguished: “It could not be said that it was none of Kindertons’ business to involve itself in the progress of the litigation.&nbsp; On the contrary, it was very much its business both in a literal and metaphorical sense” (para. [56]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>On the circumstances of the case (<strong>“and without seeking to lay down any general rule relating to the appropriateness of NPCOs against credit hire companies”</strong>), the Recorder was right to conclude that it was just to make the order and he was not obliged to make any specific finding in respect of "but for" causation before so doing. <strong>It was neither fair nor just that it should be permitted to exercise a degree of control over the most valuable aspect of Mr Ibrahim's claims</strong> on the basis of instructions from Rachel the specific intention of which was to neuter any attempts by Esure to limit its exposure to the hire claim, <strong>without exposing itself to the potential consequences of a NPCO</strong> (para. [57]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>By ordering Kindertons to pay 80% of the costs, “<strong>the Recorder was exercising his discretion appropriately to reflect the proportionate benefit which it stood to obtain if the claim for hire charges had succeeded</strong>. An attempt mathematically to calculate on a "but for" basis of causation would simply not have reflected the unfairness of allowing Kindertons a free ride on the coat tails of Mr Ibrahim's claim” (para. [58]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Regarding Kindertons’ contention that Esure should have given notice that it would or might pursue a non-party costs order against it, the court held that “<strong>Kindertons would or should have known only too well that the nature of its business put it at risk of a NPCO application</strong>. The wording of CPR 44 PD 12.2, insofar as it relates to claims for credit hire, provided express warning of this; if any such were needed. I can discern no prejudice to Kindertons in the timing of Esure's application” (para. [61]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Regarding the argument that the finding of dishonesty made it unjust to make a NPCO against Kindertons, the court held as follows: “Kindertons voluntarily assumed the risk that Mr and Mrs Ibrahim would turn out to be dishonest….The level of scrutiny which would be applied to any aspect of the claim which it was seeking to adopt was a matter for Kindertons…it may well be that the cost of exercising higher levels of scrutiny would be disproportionate to the money thereby saved but this is a commercial decision the consequences of which must be borne by Kindertons” (para. [63]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Under the subheading ‘Discretion’: “On the facts of this case, I too would have made a NPCO against Kindertons had the matter come before me at first instance for the reasons I have given. But even if I had not been minded to make such an order, I would still have concluded on appeal that <strong>the approach taken by the Recorder to the exercise of his discretion fell comfortably within the generous parameters afforded to him. Appellate courts will not lightly interfere with such decisions</strong>” (para. [65]).</li> <!-- /wp:list-item --></ul> <!-- /wp:list -->

<!-- wp:paragraph --> <p><strong>‘A costs (Mc)cloud with a silver lining’</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case of <em>Hadley v. Przybylo </em>[2024] EWCA Civ 250<a id="_ftnref1" href="#_ftn1">[1]</a> arose out of a road traffic accident in which the claimant suffered catastrophic injuries.  At a cost budgeting hearing before Master McCloud, the parties were ordered to engage in ADR in respect of the future costs.  Following ADR only one item of future costs remained in dispute – namely a figure of £68,400, claimed within the ‘Issues and Statements of Case’ phase, in respect of solicitor attendance at case management meetings with medical and other professionals, and for meetings with financial and Court of Protection deputies (said to be part of maintaining the Schedule of Loss).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In a judgment dated 22^nd June 2023<a href="#_ftn2" id="_ftnref2">[2]</a>, Master McCloud considered that she was being called upon to decide a point of principle and determined that solicitor (or fee earner) costs of attending (numerous) rehabilitation case management meetings were not in principle progressive of the litigation and that the information required could be obtained by way of an occasional letter to the relevant case manager or deputy or by obtaining documents for later disclosure.&nbsp; Accordingly, she disallowed some £52,000 worth of future costs, but gave ‘leapfrog’ permission to the claimant to appeal to the Court of Appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In a single judgment dated 28^th February 2024 and to which all members of the Court contributed, it was <strong>held </strong>that the Master had been wrong to conclude that the costs of attending rehabilitation case management meetings and the like were irrecoverable in principle as costs.&nbsp; Section 51(1) of the Senior Courts Act 1981 provides for a party to recover the <em>costs of an incidental to the proceedings</em> and the case of <em>In re Gibson’s Settlement Trusts </em>[1981] Ch 179 is authority for the proposition that in order to be recoverable, costs must related to something which (i) proved of use and service in the action; (ii) was relevant to an issue; (iii) was attributable to the defendant’s conduct (i.e. that which gave rise to the cause of action in the first place).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Therefore, the recoverability of the costs of attending rehabilitation case management meetings and the like will depend on the application of three criteria in <em>In re Gibson’s Settlement Trusts </em>(sometimes summarised as utility, relevance and attributability) and the reasonable and proportionate costs of a claimant’s costs that meet such criteria will generally be recoverable.&nbsp; The precise amount of recoverable time spent by a solicitor in respect of rehabilitation will always depend on the facts of the case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Takeaway: </strong>Both claimants and defendants will doubtlessly regard the judgment in this case as offering something of a silver lining!&nbsp; Claimants on the basis that there is no bar to claiming the costs of attending rehabilitation meetings and defendants on the basis that ‘routine’ attendance by claimant solicitors cannot be assumed to be recoverable.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a id="_ftn1" href="#_ftnref1">[1]</a> <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2024/250.html" target="_blank" rel="noreferrer noopener">https://www.bailii.org/ew/cases/EWCA/Civ/2024/250.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn2" href="#_ftnref2">[2]</a> At [2023] EWHC 1392 (KB) see: <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2023/1392.html&amp;query=(2023)+AND+(EWHC)+AND+(1392)" target="_blank" rel="noreferrer noopener">https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2023/1392.html&amp;query=(2023)+AND+(EWHC)+AND+(1392)</a></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Leila Benyounes has succeeded at trial in a birth injury clinical negligence claim, at which breach of duty and causation were in dispute.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claim involved serious injuries suffered by the Claimant during the birth of her first child.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During the delivery, the Claimant suffered a significant and life-threatening post-partum haemorrhage, and she sustained multiple tears including a third-degree internal perineal tear. The Claimant required blood and plasma transfusions and suffered a prolonged recovery period with significant pain and the development of a psychological injury.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s case, as found by the judge at trial, was that she sustained an uncontrolled delivery due to the negligence of the Defendant. Liability had been denied by the Defendant throughout the claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The trial was heard over five days in which disputed oral expert evidence on liability, causation, and quantum from six experts was heard, including in the disciplines of midwifery and obstetrics.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Leila acted for the Claimant throughout this successful claim, including at trial, in respect of pleadings and conducting conferences with the experts. It was successfully argued that the Defendant was negligent in the particular circumstances of the delivery, based on the expert evidence heard on breach of duty and causation, and it was found that the negligence materially contributed to the Claimant’s injuries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was successful in her causation and quantum arguments resulting in her beating her own Part 36 offer and obtaining favourable consequences for her damages, interest, and the Claimant’s costs pursuant to Part 36.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Leila was instructed by Hayley Collinson at Hudgells Solicitors.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Leila is a specialist in the fields of Clinical Negligence and Inquests. She is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Clinical Negligence and Inquests and Inquiries. Her full profile can be accessed </em><a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes"><em>here</em></a>.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Citation: [2024] EWHC 92 (KB)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>High Court of Justice, King’s Bench Division - Leeds District Registry</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Judge: His Honour Judge Gosnell, sitting as a Judge of the High Court</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant, Mr. Mohammed Mashuk Miah, was struck by a vehicle driven by Dr. Hayley Jones (the First Defendant) after the Claimant alighted from a bus on a rural road in North Wales.&nbsp; It was dark at the time and there was no street lighting in the area.&nbsp; The Claimant was wearing dark clothing.&nbsp; The Claimant suffered significant head and orthopaedic injuries and became a protected party.&nbsp; He had little or no recollection of the collision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Accident</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was little dispute as to the broad facts of the accident, not least as CCTV was available from the bus.&nbsp; There was limited dispute as to details such as the precise speed of the First Defendant’s vehicle (though it was within a fairly narrow band) and the precise distances involved.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A photograph of the location appears in the Judgment, as taken by one of the accident reconstruction experts:</p> <!-- /wp:paragraph --> <!-- wp:image {"id":9525,"sizeSlug":"full","linkDestination":"none"} --> <figure class="wp-block-image size-full"><img src="https://www.parklaneplowden.co.uk/app/uploads/2024/03/JH-article-picture.jpg" alt="" class="wp-image-9525"/></figure> <!-- /wp:image --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Prior to the accident, the Claimant had alighted from a bus that had stopped directly opposite the Madiha Tandoori Restaurant (the restaurant seen to the left of the road), even though this was not an official bus stop. After the bus departed, the Claimant briefly waited and then proceeded to walk across the road from the south side to the north side (from the right of the photo to the left), seemingly with the intention of visiting the restaurant. In so doing there was a collision with the First Defendant’s vehicle which was travelling easterly (away from the photographer).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The area in question would not have been visible at all to the First Defendant until about 380m before, once she had travelled over the brow of a hill.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The parties’ cases:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant alleged that the First Defendant was traveling too fast, failed to anticipate that the bus might have been dropping off passengers, should have braked, kept a proper lookout, and used her main beam rather than dipped headlights.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendants (the Second Defendant being the First Defendant’s insurer) argued that the First Defendant was driving at a reasonable speed for the location; that it was not reasonable for her to anticipate that someone would cross the road from behind the bus; and that she reacted as soon as it was reasonably possible once the Claimant was visible.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Judgment:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The factual disputes between the parties were quite narrow, but the court made limited findings of fact. &nbsp;The interpretation of the facts as to negligence was the more important feature.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court found that the First Defendant was not negligent for driving at just below the national speed limit (60 mph) in a rural area at night.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court considered whether the ‘hazard’ of the bus should have caused the First Defendant to adjust her driving.&nbsp; The judge ultimately concluded that a reasonably prudent motorist could not have identified the stationary bus as a hazard from the distance at which the First Defendant was initially approaching and that she could not have seen the Claimant in time to prevent the collision. The Judgment takes into account the visibility/ conditions, the speed of the First Defendant’s vehicle, and the actions of both the First Defendant and the Claimant leading up to the accident.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court considered guidance from Cavanagh J, in <em>Chan v Peters and Advantage Insurance Company Limited </em>[2021] EWHC 2004 (QB), in relation to collisions between cars and pedestrians, including that:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>A defendant will be liable in negligence if they failed to attain the standard of a reasonably careful driver and if the accident was caused as a result.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The burden of proof, on the balance of probabilities, rests with the claimant.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The standard of care is that of the reasonably careful driver, who is armed with common sense and experience of the way pedestrians, particularly children, are likely to behave.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>If a real risk of danger emerging would have been reasonably apparent to such a driver, then reasonable precautions must be taken.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>If the danger was no more than a mere possibility, which would not have occurred to a reasonably careful driver, then there is no obligation to take extraordinary precautions.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Drivers must always bear in mind that a motorcar is potentially a dangerous weapon.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Drivers are taken to know the principles of the Highway Code.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Trial judges should be cautious in making findings of fact of unwarranted precision when that was not justified by the evidence, on the basis that treating what could in truth be no more than ‘guessimates’ as if they were secure findings of fact.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>If there are inherent uncertainties about the facts is dangerous to make precise findings. This may well mean that the party who bears the burden of proof is in difficulties. But that is one of the purposes behind a burden of proof; that if the case cannot be demonstrated on the balance of probabilities, it will fail.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The defendant is not to be judged by the standards of an ideal driver, nor with the benefit of ‘20/20 hindsight’.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>‘Coincidence of location fallacy’</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ‘coincidence of location fallacy’ refers to a situation where a defendant's earlier negligence places them at a location where an accident occurs, but that earlier negligence is not causative of the accident itself.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was suggested in this case that if the First Defendant had driven more slowly along the stretch of road from the brow of the hill to the accident location, then the Claimant would have been able to cross the road without incident.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The concept of ‘coincidence of location fallacy’ was explained by Jackson LJ in <em>Gray v Botwright</em> [2014] EWCA 1201. He illustrated it with a hypothetical scenario where a motorist drives at excessive speed between two points but then slows down to a proper speed and is involved in a collision that is not their fault. The motorist's earlier speeding did not cause the collision, even though it led to them being at the collision point at that time. The fallacy lies in incorrectly attributing the cause of the accident to the earlier negligent act, rather than to the circumstances prevailing at the time of the accident.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In this case, the Claimant argued that the duty of care started when the First Defendant came over the brow of the hill and saw the bus, which continued until the impact occurred. The Claimant's case was that a reasonably prudent driver would have contemplated the risk that someone might have alighted from the bus to cross the road and would have slowed down accordingly, and so the fallacy did not arise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court found that expecting the First Defendant to recognize the presence of a stationary bus from 370 - 390 meters away at night as a hazard represented a counsel of perfection and was not a reasonable expectation for a prudent motorist.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court concluded that the First Defendant did not fall below the standard of a reasonably prudent driver by failing to identify the presence of a stationary bus from such a distance or to infer that a passenger had alighted and was about to cross the road. By the time that the First Defendant was able to identify the vehicle as a bus, there was no reason to regard it as a hazard.&nbsp; The Claimant himself could not be identified in the dark, wearing dark clothing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Therefore, the court did not find that it needed to consider any potential ‘coincidence of location fallacy’ further in this case, since there was no negligence at any stage by the First Defendant.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is an interesting case, with the facts that were broadly agreed.&nbsp; What was in dispute was whether the largely agreed facts gave rise to negligence.&nbsp; It is a useful example of how a court may approach liability in road traffic accidents involving pedestrians.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p><strong><u>Case comment on Williams v Williams [2024] EWCA Civ 42</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the recent case of <em>Williams v Williams </em>the Court of Appeal looked at the question of whether the presumption laid down in <em>Stack v Dowden</em> [2007] UKHL 17 (namely that property purchased in joint names is also held as joint tenants in equity) applies more broadly than simply where that property is purchased by cohabitants or persons in the “domestic consumer context”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Nugee LJ giving the judgment on behalf of the court, held that whilst it may apply more broadly it is absolutely clear it does not apply to properties bought for business purposes, even where the co owners are family members. This is because there is a clear and historic presumption that where property is bought for business purposes (whether by a partnership or not) the parties do not intend survivorship to operate, and therefore necessarily they must intend to hold as tenants in common.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Notably, the court commented there might be “strong arguments” in favour of the <em>Stack </em>presumption applying where property is purchased for business purposes by a couple in an intimate relationship, given the inevitable interplay of “mutual affection and sharing of both financial and other resources rather than commercial considerations” (para 54). Arguably, this simply reflects the likelihood that the nature of the relationship itself will amount to an effective rebuttal of the presumption against survivorship in those circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is of assistance that the court reiterated that the <em>Stack </em>presumption of joint beneficial tenancy in the absence of an express declaration of trust to the contrary, is not simply a result of the operation of the mantra of ‘equity follows the law’ but based on two much more fundamental justifications arising from context, as was made clear in <em>Jones v Kernott</em>:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>“The first is implicit in the nature of the enterprise. If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise." (<em>Jones </em>at para 19)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Secondly, that not only do parties in “a trusting personal relationship” generally not hold each other to account financially, but in many cases it is of great practical difficulty to attempt to do so. (<em>Jones </em>&nbsp;para 22)</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The facts in <em>Williams v Williams</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Williams</em>, the business property in question comprised a two-part family farm, Crythan Farm and Cefn Coed Farm. Both purchased in the joint names of Mr and Mrs Williams and their son Dorian who ran the farm as a partnership of equal shares formed by deed. This was an unusual case in that the parties agreed that the intention was for all three to own equally (they all having contributed equally including by virtue of a mortgage in joint names). The issue was as to mechanism and whether Mrs Williams’ beneficial share had, following her death, accrued to the others by virtue of survivorship, or whether it passed according to the terms of her will.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court noted the long standing presumption that those acquiring property for business purposes do not intend survivorship to operate and concluded that where property is owned by a couple and a third party, particularly where there is evidence of accounting between the parties (such as by way of partnership management accounts or the taking of rents) the appropriate starting point is that the property is owned as tenants in common.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Fundamentally, in <em>Williams</em>, the context was “very different” to that in <em>Stack </em>in that whilst it in part provided a home for Mr and Mrs Williams it was “primarily a business which provided their livelihood” (para 54).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Key takeaways</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is a particularly important decision for the many disputes involving family businesses which extend beyond simply cohabitants or husband and wife and incorporate co-ownership of land with other family members. These are very often property holdings which have the added complexity of encompassing dual-use land such as farmland incorporating a family home (such as in <em>Williams</em>) or where the family home is located above business premises below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is now beyond doubt that outside of the pure cohabitation context (unless an express declaration of beneficial interest is made) the court will very likely assume that co-owners of business or mixed business/domestic property intended to hold as beneficial tenants in common rather than joint tenants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It also raises the knotty question of whether in a different case (one in which parties did dispute the quantum of beneficial shares), whether the starting-point of common intention constructive trust reasoning would also give way in favour of the more commercially focused resulting trust analysis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>In short, in cases where property is co-owned by more than just the couple themselves, will the law now also presume their intention was to own in shares proportionate to their financial contributions – even as between the couple themselves?</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This also poses potentially very significant difficulties in terms of inheritance planning for families who may well be operating on the assumption that their partner and later children will acquire by way of survivorship on their death, thus avoiding otherwise potentially onerous inheritance tax implications.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Consideration should particularly be given as to whether this issue applies where purchases predate the introduction of the TR1, which now prompts parties to declare at purchase their intentions as to beneficial ownership, as it did in <em>Williams</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Harriet is a specialist family finance practitioner regularly undertaking instructions in TLATA 1996 claims. Harriet also has a breadth of experience in financial remedies cases involving family businesses and issues arising where property is owned jointly by one or both of the couple at the heart of the matter and third parties.</strong></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> represented the family of a midwife who died by choking on food whilst detained under the Mental Health Act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Article 2 investigation in front of a jury explored the assessment and management of risk of self-harm and suicide, particularly around food, during the deceased’s period of detention.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The jury found that the deceased demonstrated a high risk of deliberate self-harm and suicide associated with food in the month prior to her death. The jury recorded that on the day of her death the deceased was at the highest level of risk.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In recording that the deceased died by suicide, the jury concluded in an expanded narrative conclusion that her death was contributed by the inadequate assessment, communication and mitigation of risks on the ward, including with food and mealtimes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During the inquest the Trust which provided care for the deceased accepted that the assessment and mitigation of risks associated with food and mealtimes was not robust. In particular there was no care plan around food, the risk assessment was not updated, and specialist input was not sought.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Leila was instructed by Clare Gooch at Switalskis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as Tier 1 by Legal 500 for Inquests and Inquiries. Leila has been appointed to the Attorney General’s Treasury Counsel Panel A since 2010. Leila is appointed as Assistant Coroner for Gateshead and South Tyneside. Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters. Her full profile can be accessed </em><a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes"><em>here</em></a><em><u>.</u></em></p> <!-- /wp:paragraph -->

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

<!-- wp:paragraph --> <p><strong><u>The Background</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant/Appellant applied to the Employment Tribunal to be allowed to record a three-day preliminary hearing. The Employment Judge declined to grant the application as he was not satisfied with the evidence in support or that there was any significant disadvantage to the Appellant. In reaching his decision, the Judge did not refer to the guidance provided on this question in <strong><u>Heal v University of Oxford [2020]</u></strong> ICR 1294. Although the guidance in Heal is not mandatory, is in important in considering an application to record proceedings and by not referring to it, the Judge then failed to take into account factors material to the assessment of the Appellant's application. The Judge should therefore have granted the application and it was right to make a declaration that the decision not to do so was unlawful.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The Law</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Employment Tribunal is under a duty to make reasonable adjustments in appropriate circumstances. Whilst the language of reasonable adjustments appears in s. 20 of the Equality Act 2010, that section does not provide the source of the relevant duty as was made clear by Underhill LJ in&nbsp;<strong><u>J v K [2019]</u></strong>&nbsp;ICR 815, albeit in the context of an application for an extension of time for the presentation of a complaint to the employment tribunal:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"className":"is-style-default"} --> <p class="is-style-default"><em>"...judicial decisions are excluded from the scope of the Act: see paragraph 3 of Schedule 3 to the Act. But as a matter of general law the exercise of a judicial discretion must take into account all relevant considerations, and in such a case the party's mental condition or other disability would plainly be a relevant consideration."</em> [33]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Langstaff J in <strong><u>Rackham v NHS Professionals Ltd</u></strong> UKEAT/0110/15/LA said as to the level of review to which and Employment Tribunal's decision on reasonable adjustments could be subject to scrutiny at the EAT level:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>"In this case, though we are attracted to the proportionality analysis that Miss Joffe proposed and that Mr Horan in reply adopted, we do not think that the decision actually depends upon the approach we take, though we would observe that we would be very hesitant before suggesting that a pure&nbsp;Wednesbury&nbsp;approach was appropriate in any case in which it appeared to the reviewing court that it would have been reasonable to have to make an adjustment if that adjustment appeared necessary to obtain proper equality of arms for someone with a relevant disability</em>."[46]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In addition, the court observed as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“<em>In many cases, if not most, a person suffering from a disability will be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it</em>." [50]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The particular issue of whether a reasonable adjustment might be granted in the form of permission to record proceedings was considered by Choudhury J in the Employment Appeal Tribunal in <strong><u>Heal v The Chancellor, Master and Scholars of the University of Oxford &amp; Ors</u></strong> [2020] ICR 1294. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“a. Tribunals are under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in a party's ability to participate in proceedings.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>b. Where a disability is declared and adjustments to the Tribunal's procedures are requested in the ET1 form, there is no automatic entitlement for those adjustments to be made. Whether or not the adjustments are made will be a matter of case management for the Tribunal to determine having regard to all relevant factors (including, where applicable, any information provided by or requested from a party) and giving effect to the overriding objective.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>c. The Tribunal may consider whether to make a case management order setting out reasonable adjustments either on its own initiative or in response to an application made by a party.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>d. If an application is made for reasonable adjustments, the Tribunal may deal with such an application in writing, or order that it be dealt with at a preliminary or final hearing: see Rule 30 of the ET Rules.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>e. Where the adjustment sought is for permission for a party to record proceedings or parts thereof because of a disability-related inability to take contemporaneous notes or follow proceedings, the Tribunal may take account of the following matters, which are not exhaustive, in determining whether to grant permission:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>i. The extent of the inability and any medical or other evidence in support;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>ii. Whether the disadvantage in question can be alleviated by other means, such as assistance from another person, the provision of additional time or additional breaks in proceedings;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>iii. The extent to which the recording of proceedings will alleviate the disadvantage in question;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>iv. The risk that the recording will be used for prohibited purposes, such as to publish recorded material, or extracts therefrom;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>v. The views of the other party or parties involved, and, in particular, whether the knowledge that a recording is being made by one party would worry or distract witnesses;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>vi. Whether there should be any specific directions or limitations as to the use to which any recorded material may be put;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>vii. The means of recording and whether this is likely to cause unreasonable disruption or delay to proceedings.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>f. Where an adjustment is made to permit the recording of proceedings, parties ought to be reminded of the express prohibition under s.9(1)(b) of the 1981 Act on publishing such recording or playing it in the hearing of the public or any section of the public. This prohibition is likely to extend to any upload of the recording (or part thereof) on to any publicly accessible website or social media or any other information sharing platform."</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Comment</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Given the facts of the case, that there was evidence from a psychotherapist support the application, the application was not opposed by the Respondent, the Claimant was a litigant in person, the PH in question was to last 3 days, and the Claimant had previously been given permission to record hearings with no concerns over his use of those recordings, the outcome of the case is hardly surprising.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Considering the frequency with which disabled Claimants, or witnesses more generally, come before the ET, it is surprising how regularly reasonable adjustments are not considered at case management stage. When adjustments are considered and ordered, they are often conservative in nature. One reason for this conservatism may be an over-reliance on expecting Claimants to identify the adjustments they need, and the corresponding obvious difficulty for Claimants, not familiar with the ET process, to imagine what measures may alleviate disadvantages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It would be short-sighted for a Respondent representative, seeing no reasonable adjustments requested by a disabled Claimant, to fail to raise the matter. Of course primary duties are to the Tribunal, and Respondents must always bear in mind the Overriding Objective, and as such it would be sensible to always raise the matter of adjustments proactively at case management stage. In most circumstances, it is far better for a Respondent to have an effective final hearing with adjustments, albeit perhaps slightly longer, than a disrupted hearing, or worse, an appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Representatives will find useful guidance on reasonable adjustments in the context of vulnerable parties and witnesses in the <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">Presidential Guidance</a>. The Presidential Guidance refers to <a href="https://www.theadvocatesgateway.org/toolkits-1-1-1">The Advocate’s Gateway Toolkits</a> which cover a range of topics including cross examining witnesses with autism, dyslexia, ADHD, and deaf witnesses. For those representing Claimants with disabilities, the toolkits may be a helpful prompt to inform requests for meaningful reasonable adjustments.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

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

<!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For the first time in many years, the Court of Appeal in 2023 looked at the type of order, if any, under which a child should be placed at home in <em>JW (Child at Home under Care Order)</em> [2023] EWCA Civ 944<a href="#_ftn1" id="_ftnref1">[1]</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Case Law and Legal Principles</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Until the Court of Appeal revisited this area in <em>JW</em>, the last time that the topic had been, albeit tangentially, considered by the Court was in<em> Re DE (Child under Care Order: Injunction under Human Rights Act 1998)</em> [2014] EWFC 6; [2018] 1 FLR 1001.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Baker J held that, unless the need to remove arises as an emergency, a local authority considering removal should give notice to the parents, who may then make an application to the court to hold the situation via either an application to discharge the care order or a HRA 1998 injunction, or both. The decision to remove a child should only be made after a ‘<em>rigorous analysis of all of the realistic options</em>’ (in a similar manner required by the Supreme Court in <em>Re B </em>[2013] UKSC 33 when adoption is being considered). Baker J set out guidance on the approach to be taken where a local authority is proposing to remove a child, who is the subject of a care order, from home at paragraph 49 of the judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>[28] of <em>JW</em> sets out a helpful summary of the statutory scheme and case law:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"lower-alpha"} --> <ol style="list-style-type:lower-alpha"><!-- wp:list-item --> <li>making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>since <em>Oxfordshire </em>and <em>Re O</em>, the High Court decision in <em>Re DE</em>, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself for making a care order;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>supervision orders should be made to work, where that is the proportionate form of order to make.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>President’s Public Law Working Group Guidance</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In March 2021<a href="#_ftn2" id="_ftnref2">[2]</a>, the report at paragraphs 158 – 162 dealt with the making of care orders where children are placed at home. Key parts of those paragraphs are:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There is a risk that the making of a care order at home provides false assurances to partner agencies because the local authority is neither involved in, nor has a thorough oversight of, the child’s day-to-day care.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings. Unless a final care order is necessary for the protection of a child, an alternative means/route should be made available to provide this support and these services without the need to make a care order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Supervision Orders may be appropriate, but there are concerns of their use. They have a higher (20%) risk of breakdown and return to court for further care proceedings within 5 years.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A final care order should not be used as a method prematurely to end proceedings within 26 weeks artificially to alleviate concerns that the children will be at continuing risk of harm. The order should only be made whether the local authority can demonstrate that the assessment of any carer of a looked after child meets the criteria of the regulations.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A final care order has an intrusive effect of state intervention, not only for the parents but also for the child. It can only be justified if it is necessary and proportionate to the risk of harm to the child.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Appendix F of the report sets out the best practice guidance (paragraphs 34 – 37) where a care order is sought but the child is to be placed at home:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There should be exceptional reasons for the court to make such an order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It should not be used as a vehicle for the provision or support or services.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers, or some lesser legal order and regime is required. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The PLWG in their report and recommendations placed emphasis on the need for proportionality when considering the necessity for a child placed at home under a final care order. This in turn caused the Court of Appeal in <em>JW</em> to find that there needs to be ‘<em>exceptional reasons’</em> to justify the making of a care order for a child who is to be placed at home as a long-term care plan.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Paragraph 37 of <em>JW</em> is key;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.'</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In April 2023 a further report was published (<em>Recommendations to achieve best practice in the child protection and family justice systems: Supervision Orders</em>)<a href="#_ftn3" id="_ftnref3">[3]</a>. The key provision within this report is contained with Appendix C. The key change is the expectation that, in every case where a supervision order may be made, the local authority will prepare a clear and detailed Supervision Support Plan<a href="#_ftn4" id="_ftnref4">[4]</a> which is tailored to the needs of the child. It also requires that the plan should be clear as to the provision of resources to underpin each element of the plan, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the supervision order:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>In every case where a Supervision Order may be made, the local authority will prepare a clear and detailed Supervision Support Plan which is tailored to the needs of the child. The guidance also requires that the plan should be clear as to the provision of resources to underpin <u>each element of the plan</u>, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the Supervision Order.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following the decision in JW, it is anticipated that the number of final care orders for children placed at home will drop significantly. As practitioners, it is important to analyse the facts of each case where such a care plan is proposed, to identify whether there are ‘truly exceptional’ circumstances that justify the same. Where a case is to be concluded by way of a supervision order, it is essential that the support plan is a comprehensive document that sets out exactly what the parents can expect the local authority to do to support the family in making the placement successful, and vice versa.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf">https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf">https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf</a></p> <!-- /wp:paragraph -->