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“Putting Grindleford on the Map”

Case Note: Bevan v Ministry of Defence [2025] EWHC 1145 (KB) | Jim Hester and Georgia Banks, Counsel for the Defendant  Citation: [2025] EWHC 1145 (KB) Court: High Court (King’s Bench Division), Manchester District Registry Judge: His Honour Judge Bird, sitting as a Judge of the High Court Date of Judgment: 14 May 2025  The full Judgment can be read here:  <a href="https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/1145" target="_blank" rel="noreferrer noopener">https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/1145</a>  <a href="https://www.bailii.org/ew/cases/EWHC/KB/2025/1145.pdf" target="_blank" rel="noreferrer noopener">https://www.bailii.org/ew/cases/EWHC/KB/2025/1145.pdf</a>  <h4 class="wp-block-heading">Overview</h4>  In Bevan v Ministry of Defence, Jim Hester and Georgia Banks were instructed by the Defendant in a claim for noise-related injury, valued by the Claimant at over £530,000.  Though experts in 3 disciplines were cross-examined over the course of the 5-day trial, the case turned primarily on the ENT evidence.  The case provides insight into claims involving alleged ‘acoustic shock’.  The claim arose from noise exposure from military vehicle and headset use.   The claim was dismissed following careful analysis of potential mechanisms of causation.  The Court concluded that the Claimant’s tinnitus and asserted psychological injury were not attributable to the conceded breach of duty. In so finding, the Court applied the Grindleford Criteria, the only extant peer-reviewed diagnostic framework for acoustic shock and found that key criteria were not met.   <h4 class="wp-block-heading">Factual Background </h4>  Mr Bevan served in the Household Cavalry Regiment and was involved from 2017 to 2020 in testing Ajax armoured vehicles at General Dynamics in Merthyr Tydfil. During this period, he wore a headset in his right ear, programmed to relay communications and alarms. His case was that prolonged exposure to repeated alarm signals, particularly the CBRN alarm, caused him to develop tinnitus and associated psychological injury.  While breach of duty was admitted by the MoD, causation and quantum were in dispute. Notably, the claim underwent an evolution: it began as a noise-induced hearing loss (NIHL) case, but by trial was premised on acoustic shock.   <h4 class="wp-block-heading">Medical Expert Evidence - Causation</h4>  The Court accepted that a mechanism of injury was required to prove causation:   ‘…hearing loss and tinnitus can (and often do) occur without any injury or fault at all. The cause of these issues may be very difficult to identify. The ENT experts agree that “a significant number of individuals with hearing loss/ tinnitus never have an underlying cause diagnosed, even with the very best investigation.”’   Three mechanisms as to causation were considered:  <ol class="wp-block-list"> <li>NIHL was ruled out. The experts agreed that audiometric evidence did not disclose the configuration required to meet the diagnostic criteria set out in Coles, Lutman and Buffin (2000). There was no high-frequency ‘notch’ or ‘bulge’, and no argument to the contrary was advanced at trial.</li>  <li>Acoustic trauma was also excluded. There was no evidence of a single, acoustic event which was sufficiently loud to meet that diagnosis.</li>  <li>Acoustic shock was the only remaining possibility. However, it had not been referred to during proceedings until only a few weeks before trial. </li> </ol>  The only papers available to the court which referenced acoustic shock were those written by Parker et al (2014<a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftn1">[1]</a> and 2020<a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftn2">[2]</a>).    One of the authors of these papers, Mr Andrew J Parker, was the ENT expert for the Defendant in this case.   Mr Parker had also been the ENT expert instructed (on that occasion by the successful claimant) in Royal Opera House Covent Garden Foundation v Goldscheider [2019] EWCA Civ 711.   The Parker 2020 paper advance the ‘Grindleford Criteria’ as an objective method when considering a diagnosis of acoustic shock.  These are the only known criteria for diagnosis of acoustic shock.   Importantly, these criteria were accepted by the court in Bevan, and so the court considered the case against these guidelines.   <h4 class="wp-block-heading">The Grindleford Criteria and their Application </h4>  The Grindleford Criteria comprise four core elements (G1 - G4):  <figure class="wp-block-table"><table class="has-fixed-layout"><thead><tr><td>Criterion</td><td>Requirement</td><td>Court’s Finding</td></tr></thead><tbody><tr><td>G1</td><td>A defined acoustic incident</td><td>Not satisfied – Exposure described was repetitive and generalised. There was no discrete incident sufficient to engage the test.</td></tr><tr><td>G2</td><td>Symptoms commencing immediately or shortly after the incident</td><td>Not satisfied – The court found that the onset of tinnitus occurred about 2 – 4 months after exposure ended.</td></tr><tr><td>G3</td><td>Symptoms exceeding normal physiological or startle responses</td><td>Satisfied – The experts agreed that the Claimant’s tinnitus could meet this threshold.</td></tr><tr><td>G4</td><td>Symptoms arising from the exposed ear(s)</td><td>Not satisfied – The Claimant ‘s tinnitus was bilateral. However, the exposure which the Claimant’s expert considered may have caused the acoustic shock was exclusively right-sided. Bilateral symptoms were inconsistent with such exposure unless the tinnitus was of sufficient magnitude – which the court found it was not.</td></tr></tbody></table></figure>  The criteria also note that there may be significant psychological overlay or relationship to illness behaviour.  The failure to meet G1, G2 and G4 was, therefore, fatal to the acoustic shock claim.  The Court accepted Mr Parker’s evidence that a qualifying event under G1 must be “memorable… enough to produce a startle and a shock”. None was identified.  Further, G2 requires at least some symptoms temporally proximate to the identified event, even if full manifestation is delayed.  Again, this feature was missing in the case.  On G4, the Claimant's tinnitus was bilateral. As Mr Parker explained, this would only be consistent with right-sided acoustic shock if the tinnitus were catastrophic or at the top-end of severe, which the court accepted it was not.  Absent a physical acoustic injury, the psychological sequelae could not be causally linked to the previous noise exposure.  <h4 class="wp-block-heading">Conclusion</h4>  The Court concluded:  <ul class="wp-block-list"> <li>The Claimant did not suffer acoustic shock, NIHL, or acoustic trauma.</li>  <li>His tinnitus began after the exposure period and so could not be attributed to it in any event.</li>  <li>The subsequent conversion disorder was not caused by the Defendant’s breach.</li>  <li>The claim was accordingly dismissed.</li> </ul>  The Judgment makes clear that while acoustic shock may be a real clinical entity, its diagnosis requires rigorous and structured analysis and that the Grindleford Criteria offer the appropriate method for that assessment. Generalised or ambient noise exposure, however persistent, will not suffice without a defined event, temporal proximity, and lateral consistency.  <h4 class="wp-block-heading">Key Practice Points</h4>  <ul class="wp-block-list"> <li>The Grindleford Criteria are likely to become the standard means of assessing acoustic shock claims.</li>  <li>Absent a provable mechanism for injury, the fact that there had been negligent exposure and that there was an ENT-related condition is insufficient for causation to be made out. </li> </ul>  It should be noted that the Claimant sought permission to appeal from the trial judge, which was refused.  The Claimant indicated that an application for such permission will be renewed at the Court of Appeal.   <a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftnref1">[1]</a> William Parker, Victoria Parker, Glynn Parker & Andrew Parker (2014) ‘Acoustic shock’: A new occupational disease? Observations from clinical and medico-legal practice, International Journal of Audiology, 53:10, 764-769, DOI:10.3109/14992027.2014.943847  <a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftnref2">[2]</a>Parker, W. A. E., Parker, V. L., Parker, G., & Parker, A. J. (2020). Acoustic shock: an update review. The Journal of Laryngology & Otology, 134(10), 861–865. https://doi.org/10.1017/S0022215120001991

Police, Misadventure, and the Limits of Article 2: R (Robinson) v HM Assistant Coroner for Blackpool & Fylde [2025] EWHC 781 (Admin)

Introduction  The High Court has provided important clarification on the circumstances in which Article 2 of the ECHR is automatically engaged following a death involving police contact.  The Court’s analysis has significant implications for future inquests where the boundaries of “state responsibility” are in issue.  Factual Background  On 11 March 2021, Mr Robinson was stopped by armed police officers in Blackpool.  After a car chase, he exited the vehicle and was restrained on the ground.  During the course of the restraint, he placed a plastic-wrapped package (later identified as containing drugs) into his mouth.  Officers attempted to prevent this, but the package became lodged in Mr Robinson’s throat and he quickly became unresponsive.  Officers started CPR and paramedics arrived promptly, but despite efforts to resuscitate him, Mr Robinson was pronounced dead.  A post-mortem determined that the cause of death was upper airway obstruction due to the package in his throat.  At the inquest, the coroner had deferred the decision as to whether Article 2 was engaged until after the evidence had been heard.  Following the evidence, the coroner declined to engage Article 2. The jury returned a short form conclusion of misadventure.  The coroner also wrote a “letter of concern” to the National College of Policing to address issues around the training of officers around the removal of drug packages.  No Prevention of Future Deaths (PFD) report was made.  The family sought judicial review on 3 grounds:  <ol class="wp-block-list"> <li>The decision that Article 2 was not engaged.</li>  <li>The coroner’s summing up to the jury was insufficient.</li>  <li>The failure to issue a PFD report.</li> </ol>  First Ground: Article 2  The Applicant submitted that the procedural obligation under Article 2 was automatically triggered and that the coroner had erred in finding otherwise.  The argument was twofold:  Firstly, that the case fell within a category where Article 2 is engaged automatically.  Secondly, in any event, there was an arguable breach of the state’s positive operational duty to protect life.  It was contended that the categories of case where Article 2 is engaged automatically are not closed.  The Applicant proposed that the following categories should be recognised as giving rise to automatic engagement:  <ul class="wp-block-list"> <li>An unnatural death occurring while in the involuntary (lawful or unlawful) custody or control of the state.</li> </ul>  <ul class="wp-block-list"> <li>An unnatural death following the deceased committing an intentional act liable to cause himself harm in the presence or control of the police.</li> </ul>  <ul class="wp-block-list"> <li>A death where police are aware that the person has swallowed a package posing a risk to life.</li> </ul>  <ul class="wp-block-list"> <li>A death in custody or control where the person enters a medical emergency of which police were or should have been aware.</li> </ul>  <ul class="wp-block-list"> <li>A death following the use of force by police in the course of an arrest or physical control.</li> </ul>  The Applicant argued that Mr Robinson’s death clearly fell within one or more of these expanded categories.  Furthermore, it was submitted that the police knew or ought to have known that Mr Robinson was at real and immediate risk of death, thereby triggering the positive operational duty under Article 2.  Conclusion  Mr Justice Kerr rejected the Applicant’s submissions and reaffirmed the orthodox position that the categories of automatic Article 2 engagement remain limited and are not lightly extended.  The Court accepted the approach in Morahan [2022] EWCA Civ 1410, quoting Popplewell LJ in that the circumstances of the death must be such that:  “They fall into a category which necessarily gives rise, in every case falling within the category, to a legitimate ground to suspect state responsibility by way of breach of a substantive article 2 obligation” (Morahan at [122(7)]).  Mr Justice Kerr found that the proposed new categories advanced by the Applicant lacked a sufficient degree of certainty or inevitability to justify automatic engagement.  While Mr Robinson had been under a degree of physical restraint, he was not in “custody or detention” in the relevant Article 2 sense.  In relation to the operational duty, the Court found that the coroner had correctly considered whether there was an arguable breach of the duty to protect Mr Robinson’s life.  However, the coroner had considered the evidence, particularly the officers' rapid response and the provision of first aid and concluded that no such arguable breach had occurred.  The Judge held that this reasoning was legally sound and open to the coroner on the evidence.  Second Ground: Coroner’s Summing Up  The Applicant argued that the coroner’s summing up failed to adequately guide the jury on key issues.  In particular, in relation to the police’s conduct during the restraint and the timing of medical interventions.  Conclusion  The High Court rejected these criticisms.  Mr Justice Kerr held that the summing up, while brief, was fair and legally sufficient.  The jury had seen all the relevant evidence and were repeatedly reminded that they were the judges of fact.  The coroner’s directions were not biased or flawed, and the jury’s preference for misadventure verdict reflected their own view of the facts, not flaws of the directions given.  Third Ground: PFD Report  The Applicant argued that the coroner’s decision to send a “letter of concern” instead of a PFD effectively avoided the statutory reporting regime in favour of an informal mechanism.  Reliance was placed on the Chief Coroner’s Revised Guidance No.5. which stressed that the “concern” threshold is low.  Conclusion  The coroner’s refusal to issue a PFD report was upheld.  Mr Justice Kerr found that the statutory duty only arises where the coroner forms the view that both a risk of future deaths exists and that actions should be taken to prevent them.  Although the coroner recognized the risk and sent a “letter of concern” he had found that there was no sufficient basis to believe that action was required to prevent future deaths.  Mr Justice Kerr found no legal error in the coroner’s reasoning or decision.  It was emphasised that this is a matter of discretion for the coroner, not an obligation.  Commentary  This case affirms the narrowness of the circumstances in which Article 2 is automatically engaged in the context of deaths involving police contact, particularly outside formal detention settings.  The Court reaffirmed that the existing categories of automatic engagement are intentionally limited.  Expansion requires a clear and necessary link between the factual category and the likelihood of state responsibility.  The judgment also clarifies the threshold for the operational duty it is not enough that there was some general risk.  The officers must have known (or ought to have known) of a real and immediate risk to life and failed to take reasonable steps to avoid it.  Notably, the case demonstrates the reluctance to conflate police presence or control with detention in the absence of formal arrest or custodial status.

Coroners Statistics 2024: Key Trends

On the 8th May 2025 the Ministry of Justice published the Coroners Statistics 2024, providing an overview of deaths reported to coroners in England and Wales during the past year.  The headline findings show that:  <ul class="wp-block-list"> <li>191,636 deaths were reported to coroners in 2023, a 7% decrease from the previous year and the lowest figure since 1995.</li>  <li>Post-mortem examinations were ordered in 38% of cases, slightly down from 2022, continuing a gradual long-term decline.</li>  <li>Inquests were opened in 30,184 cases, accounting for 16% of all reported deaths, maintaining a consistent trend.</li>  <li>Jury inquests remained rare, comprising just 1% of all inquests.</li>  <li>The median time to complete an inquest was 30 weeks, reflecting a continued improvement in timeliness since 2020.</li> </ul>  The report also identifies several key trends:  <ul class="wp-block-list"> <li>“Natural causes” remained the most common inquest conclusion, followed by “accident/misadventure.” Conclusions of “suicide” and “open” have remained relatively stable.</li>  <li>There is notable regional variation in the use of post-mortems and inquest opening rates, highlighting differences in local practices and population profiles.</li>  <li>The overall reduction in reported deaths may reflect both changes in registration practices and longer-term demographic trends following the COVID-19 pandemic period. COVID-19 deaths are likely to be considered to be deaths from natural illness and as such not reportable to coroners.</li> </ul>  These figures suggest that coroners are managing workloads more efficiently, while ensuring that inquests remain a key part of the investigatory process into unexplained or unnatural deaths.  You can read the full report and analysis on the GOV.UK website:  <a href="https://www.gov.uk/government/statistics/coroners-statistics-2024/guide-to-coroners-statistics" target="_blank" rel="noreferrer noopener">https://www.gov.uk/government/statistics/coroners-statistics-2024/guide-to-coroners-statistics</a>  Julia is a member of the Inquests and Inquiries Team and Head of the Family Team at Parklane Plowden Chambers. <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-nelson/" target="_blank" rel="noreferrer noopener">Her full profile can be accessed here</a>.

Gonorrhoea and Presumed Sexual Abuse – Court of Appeal Clarifies Re A, B and C

Late last year, second-six pupil Avaia Williams <a href="https://www.parklaneplowden.co.uk/non-sexual-transmission-of-gonorrhoea-in-children-cases/" target="_blank" rel="noreferrer noopener">wrote a summary</a> in relation to Liverpool City Council v M and F and P [2024] EWFC 318 (B), a case concerning non-sexual transmission of gonorrhoea. The matter has since been successfully appealed and Avaia now considers what the appeal judgment in F and B (Fact-Finding: Gonorrhoea) [2025] EWCA Civ 340 means for such cases going forward.  Background  The matter concerned F, a six-year-old girl, (referred to in the first instance decision as ‘C’ and in the appeal as ‘F’) who presented at A&E in mid-2023 and was tested positive for gonorrhoea. At this time, F lives with her maternal grandmother and maternal uncle, X (referred to in the first instance decision as ‘P’ and in the appeal as ‘X’). X had also tested positive for gonorrhoea prior to F’s diagnosis, F’s mother, M, also tested positive.  Crucially, F had made no allegations of sexual abuse and no such statement was made which suggested as such. Further, partial examination revealed no signs of sexual abuse.  It was the Local Authority’s case at first instance that the diagnosis must have been caused by sexual contact and sought findings against either X or M.  First Instance Decision  The court at first instance was guided by A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437 which cautions against an immediate jump to an infection equalling evidence of sexual abuse and the need to consider the broad canvas of evidence in the case.  The case was heavily guided by the evidence of two experts, Dr Amos Ghaly, a consultant in genitourinary medicine, and Dr Michael Rothburn, a microbiologist. Dr Ghaly stated in his report that gonorrhoea is primarily sexually transmitted, noting that:  “Transmission is by direct inoculation of infected secretions from one mucous membrane to another. The main route is sexual contact with relevant anatomical sites…”  Dr Ghaly provided a simplified overview of transmission, noting that gonorrhoea being present on an object or surface, and then somebody simply coming into contact with that surface is not likely to transmit gonorrhoea, there needs to be a transmission via a ‘mucous membrane’ such as the mouth, nose, eyes, and genitals. Dr Ghaly noted that:  “A positive culture for N gonorrhoeae from any site in a child without prior peer sexual activity is strongly suggestive of sexual abuse. The question of whether gonococcal infection in children can be acquired through fomites still arises. To date there are no convincing data to support nonsexual mode of transmission in children.”  In conclusion, Dr Ghaly believed the transmission was likely due to sexual contact, but that fomite transmission could not be excluded.  Dr Rothburn explained of fomite transfer that:  “The possibility of fomite transfer (transfer via an inanimate object), is considered rare because gonorrhoea is a fastidious organism which does not survive outside the human host in a dry environment.”  The court therefore noted that:  “The combined expert evidence does not exclude the possibility that [F] could have contracted the infection from fomite transmission. The collective evidence supports that the germ can survive on a surface for up to 12 hours in moist conditions. A damp towel located within a bathroom which is poorly ventilated and in which condensation forms, and is visible, is such a moist environment. For [F] to have contracted the infection from a fomite source, the germ must have been deposited on a surface and survived for a long enough period for [F] to come into contact with it. The germ must then have been conveyed to one of her mucus membranes for the infection to enter her body. This could be achieved directly by the object having been inserted into the body with such depth that it touches the membrane. In the case of the eye, this could be achieved by wiping the eye with an infected towel or by self infection from touching an infected part of the body and then touching the eye.”  As such, it was found that F’s infection was transmitted via non-sexual contact, i.e. via fomites.  The Appeal  The Local Authority appealed the decision on three grounds:  <ol class="wp-block-list"> <li>The judge was wrong to place such weight on the experts being unable to conclusively eliminate fomite transmission as a possibility, thus not applying the correct standard of proof;</li>  <li>The judge failed to properly consider the wider canvas of evidence alongside that of the experts, notably in respect of the bathroom conditions being unfit to incubate gonorrhoea and P’s credibility as a witness;</li>  <li>The judge was wrong for not explaining why he rejected the medical evidence, instead relying on Re A, B and C (Fact-Finding: Gonorrhoea) to depart from this.</li> </ol>  The Court of Appeal, whose judgment was given by Baker LJ, reminded itself of the caution against interfering with a trial judge’s findings of fact or assessment of the evidence, citing Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 which reminds courts that:  “The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. The trial is not a dress rehearsal. It is the first and last night of the show. Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. In making his decision the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). Thus even if it were possible to duplicate the role of thr trial judge, it cannot in practice be done.”  That being said, the Court of Appeal found they were compelled to interfere with the trial judge’s conclusions, accepting that the judge either misinterpreted or misapplied the expert evidence. The Court of Appeal noted that the expert evidence principally was that gonorrhoea in a child was a strong indicator of sexual abuse and, whilst fomite transmission could not be ruled out, it is a rare occurrence.  Baker LJ therefore held at [45] that:  “Instead of treating that as the starting point when considering the totality of the evidence, the judge focused on the fact that the expert evidence left open the possibility of fomite transmission. He said words to that effect at several points in the judgment […] he alighted on Dr Ghaly’s observation that “moisture is a main factor” for the survival of the bacterium and Dr Rothburn’s comment that its survival “on an inanimate surface depends on it being a moist environment”. He noted that the conditions in the bathroom at the grandmother’s home provided the moist environment in which it could have survived for up to 12 hours. He set out in paragraph 80 of his judgment ways in which F might have been infected by fomite transmission. It is right to note that at paragraph 81, he described the grandmother’s routine with the family towels as “meticulous … some would say exemplary”. But overall he concluded that fomite transmission in that environment was “unlikely … but not impossible””  Ground one was therefore successful, with the court finding that the judge had failed to factor in the rarity of fomite transmission, attaching excessive weight to the point that such a finding was not impossible.  On the second ground, the Court of Appeal found that the judge was flawed in his treatment of the lies told by X in evidence. Whilst lies must be treated flexibly within family proceedings, a lie on a material issue might be evidence supporting a finding. Baker LJ noted at [48] that:  “He found that X had lied in his evidence about when he discovered he was suffering from gonorrhoea. That lie was plainly capable of supporting the local authority’s case that F had been infected by X through an act of abuse. But the judge concluded, without explaining why, that it was “likely that X made up the story to give a reason for the infection being on the toilet seat or on towels”. He decided that X “has created a narrative which he thinks would tie in with the timings of the discovery of symptoms in F” without explaining why he discounted the possibility that the reason for the false narrative was to conceal the fact that he had abused the child. His ultimate conclusion on this part of the evidence was that “the fact that X has lied does not of itself negate the possibility of F having become infected by reason of X’s lack of personal hygiene.” But as already noted there was no evidence to support this possibility other than the expert evidence that fomite transmission “cannot be totally excluded … due to lack of robust published research evidence”.”  Ground two was therefore successful, with the court noting that the lies told by X was capable, and in fact more consistent, with the expert evidence that the infection was likely sexually transmitted.  On the final ground, Baker J was clear that the judge was mistaken on the application of A, B and C (Fact-Finding: Gonorrhoea) (notably a judgment given by Baker LJ). Baker LJ clarified that, his judgment in A, B and C, was within the context on an argument that an infection of gonorrhoea was de facto evidence of sexual abuse and this amounting to a reversal of the burden of proof, with counsel in that case identifying features which suggested non-sexual transmission. Baker LJ at [51] provided that:  “It was in that context that, when analysing the submissions at the end of the judgment, I made the observations at paragraph 53 which were cited by the judge in the present case when setting out the relevant law, concluding that the judge in that case had concluded wrongly on the medical evidence that the mere presence of gonorrhoea in the child was determinative of sexual abuse”  Baker LJ went further, noting at [52] that:  “I accept that my judgment in Re A, B and C could have been expressed with greater clarity, but for whatever reason the judge’s reliance on it in the present case led him into error. He seemingly misconstrued paragraph 33 as representing my conclusion as opposed to merely a summary of counsel’s submissions. It was counsel who contended that “a proper survey of the wider canvas would have shown that the presence of gonorrhoea was the only evidence of sexual abuse” and that “all the other features pointed the other way”.”  The Court of Appeal expressed worry over the judge presenting the factors identified by counsel in Re A, B and C as an effective checklist against which to evaluate evidence in the present case. Baker LJ reaffirming that this list was a list drawn by counsel in that case, not a checklist to consider as an art for all such cases.  Concluding, the Court of Appeal held that Re A, B and C was a successful appeal on the ground that the judge did not adequately consider the wider canvas of evidence and did effectively find that the medical evidence alone equated sexual abuse; the issue in this case was that the judge did not adequately consider the expert evidence that the likely cause was sexual contact and the wider canvas supporting this, instead being tied to the fact that fomite transmission was not a factual impossibility.  Commentary  The real significance of F and B lies in the way it ensures that Re A, B and C is read contextually and clarifying the box within which that decision squarely fits. Clearly, since 2023, the evidence of a usually sexually transmitted infection not being determinative of sexual contact has been misinterpreted into a starting point or a high bar to overcome. As did the judge at first instance here, treating the “features pointing the other way” as some sort of checklist which can defeat any allegation of abuse based on an infection is not an approach sanctioned by the case law.  Baker LJ was clear that, the list and discussion within Re A, B and C was no more than that, it was useful advocacy within the facts of that case, but never intended to become a template of defining principles. The first-instance judge in Liverpool CC v M, F and P fell into error precisely because he elevated that counsel-drafted list to the status of principle, setting it up against the expert evidence as though the two carried equal weight.  What the Court of Appeal has clarified is that, just because an infection alone is not conclusive of sexual abuse, this is simply one factor to consider within the broad canvas of evidence. What the law does not, however, say, is that this lack of inherent presumption does anything to the evidential canvas other than to ensure a judge does not place all the weight solely on the infection, and that infection must be contextualised. If two experienced specialists are united in saying that paediatric gonorrhoea is “strongly suggestive” of sexual contact and that non-sexual transfer remains only a theoretical rarity, a judge must then consider that the possibility of an outcome is not the same as the probability of an outcome.  Re A, B and C was never a mandate to discount expert consensus whenever a fanciful alternative can be imagined; it was a reminder not to convict on science alone without canvassing the wider evidence. F and B restores the missing half of that equation: the wider canvas does not licence a court to simply discount what the science says is overwhelmingly likely. Nor does it sanction a “tick-box” defence drawn from someone else’s litigation strategy.  Simply put, F and B does little by way of change or gloss to the law, what it does make clear, is to suggest that any ‘defence’ of fomite transfer is one which is going to be rarely capable of succeeding once the full canvas of evidence is considered alongside the scientific evidence. The presence of gonorrhoea is still not de facto proof of sexual abuse, but alternatives which are “not impossible” are simply not capable of dominating a case by virtue that they technically exist.  The full judgment can be found <a href="https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/340?query=gonorrhoea" target="_blank" rel="noreferrer noopener">here</a>.

Cases of parental death before protective measures – a reaffirmation of the Children Act’s adaptability? – [2025] Fam Law 538

We are pleased to announce that Parklane Plowden pupil, Avaia Williams, has again had an article published in the Family Law Journal (April 2025).  In this article, Avaia explores two recent High Court decisions, with wholly unique backgrounds, in which members of chambers Martin Kingerley KC, Rebecca Musgrove, and Nathaniel Garner acted respectively. In both A Local Authority v W [2024] EWFC 350 ('Re W') and A Local Authority v C [2024] EWFC 336 ('Re C'), the children’s mothers had died in tragic circumstances leaving nobody able to exercise parental responsibility.  A key theme within both judgments was whether harm caused pre-birth could be attributed to a parent who is deceased when the date for proceedings having been issued is post-death. In Re W, the mother took her own life whilst the baby was in utero, thus creating a lacuna whereby for a period of time, post mother’s death but before the child’s birth, there were no legal people in existence. In Re C, the mother also took her own life via a house fire, in the process almost killing C, here an issue arose whereby the Local Authority only issued proceedings a month later.  Mr Justice Peel found in Re W that:  “The court may not have jurisdiction until the child is born, but in my judgment the court is entitled, when considering threshold, to take into account the parental care given to the child before birth, even if the parent is dead at the relevant date point of either protective measures starting or at the point of application. If the question posed is: “can the care given by the parent encompass care given to a child in utero” I suggest that the answer, in principle, is yes.”  And noted in Re C:  “. . . the attributability requirement is not to be confined to, or aligned with, the date of the application. C was at the date of the application suffering significant harm. That harm was, on the evidence currently available, attributable to the actions of her mother a mere 7 days previously. It would be extraordinary if, in such a situation, the Local Authority could not take steps to protect the child. It would lead to the anomalous situation that the court would not be able even to inquire into threshold, however, desirable that might be, or seek protective orders. The purpose of Part IV of the Act is to enable children who are suffering, or likely to suffer, significant harm caused by parents to be protected from that harm by Local Authority intervention. To neuter s31 because the parental perpetrator of harm is no longer alive would be an unexpected, and unfortunate consequence. But in my judgment that is not the intention of the Act, nor is it what the Act says. A plain reading of the words in s31(2)(b) that the harm must be attributable to “the care given to the child” must include past care, i.e before the date of the application, which led to the application itself. The wording does not expressly add “at the time of the application” or some such rider. Nor does it say that a parent must be alive at the time of the application. If my analysis is correct, then it matters not whether the parent is alive, or dead, or missing. What matters is whether the LA can establish (i) harm at the date of the application (or, if earlier, when protective measures implemented and carried through to the date of the application) and (ii) attributability of that harm i.e that it is a consequence of parental acts or omissions.”  Avaia explores the impact and potential consequences of these two judgments, questioning whether Parliament intended for unborn children to be considered in the way that Mr Justice Peel allowed for, a question which raises legitimate concern given the legal definition of a foetus was not clarified in law until after the drafting of the Children Act 1989.  The court also relied on the judgment in Re M [1994] 2 FLR 577 which causes concern that the goal posts in relation to threshold may have been moved; drug or alcohol use in utero to establish a basis for pre-birth harm almost always arises as an issue as being a risk of significant harm for the future, not necessarily relied upon as a sole condition or actual harm caused – to consider a hypothetical where a mother uses drugs or alcohol for the first 5 months of pregnancy, she then stops completely and it is agreed she has made a full recovery, upon birth the baby has drug and/or alcohol related concerns, is threshold established? Prior to the judgments of Peel J, it would have been more readily argued no, now, the situation is not so clear.  For more about the judgments and potential implications in practice, and to read the discussion, you can find Avaia’s full article in Family Law Journal (April 2025 issue) <a href="https://plus.lexis.com/uk/document/?pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-uk%2Furn:contentItem:6FHB-X6W3-RSP5-648C-00000-00&selectedTocLevelKey=TAABAABAAKAAC&crid=1c13272e-a979-4a69-9025-d4faca8557a8&cbc=1" target="_blank" rel="noreferrer noopener">here</a>.  <a href="https://www.parklaneplowden.co.uk/our-barristers/avaia-williams-pupil/" target="_blank" rel="noreferrer noopener">Avaia Williams</a> is a second-six family and COP pupil and is quickly building a busy children law and Health and Welfare practice. He has already acted in multi-day final hearings and complex capacity matters.  <a href="https://www.parklaneplowden.co.uk/our-barristers/rebecca-musgrove/" target="_blank" rel="noreferrer noopener">Rebecca Musgrove</a> is a family and Court of Protection barrister who often acts in lengthy and complex proceedings and regularly appears in the High Court. She has particular expertise in Deprivation of Liberty cases concerning children.  <a href="https://www.parklaneplowden.co.uk/our-barristers/nathaniel-garner/" target="_blank" rel="noreferrer noopener">Nathaniel Garner</a> is a specialist family practitioner, with emphasis on serious and complex cases involving children. He is recognised by Chambers and Partners for his exceptional work and is often instructed in high profile cases on Circuit.  <a href="https://www.parklaneplowden.co.uk/our-barristers/martin-kingerley-kc/" target="_blank" rel="noreferrer noopener">Martin Kingerley KC</a> is a door tenant who took silk in 2020 and was appointed a Deputy High Court Judge in 2023. He is instructed in some of the most serious and complex public law cases and is an expert on matters concerning surrogacy and conception.

The Need for Empathetic and Accurate Language About Suicide in Family Proceeding

The language used in legal proceedings can have a profound and enduring impact on everyone involved, particularly within family cases, documents such as thresholds build a stage for care proceedings, and case summaries and openings set the tone in private disputes.  For many years, the phrase “committed suicide” was routinely employed to describe the act of ending one’s own life, it continues to be used significantly. Such usage stems from an era when suicide was deemed both a criminal offence and a moral failing. Despite the fact that the Suicide Act 1961 decriminalised suicide in England and Wales, this outdated terminology persists, carrying with it undertones of wrongdoing and judgement.  Family proceedings regularly require the court, legal and children professionals, parents, families, and children themselves to confront difficult and emotional subjects, including in many cases a party’s suicidal ideation, attempts, or the tragic death of a loved one by suicide.  When these events are discussed – in written submissions, thresholds, case summaries, oral hearings and questioning – the phrase “committed suicide” can reinforce the notion that a criminal, sinful or immoral act has taken place. It can also exacerbate the distress of bereaved family members, who may already feel guilt, shame, or confusion around their loss. In a modern legal framework that appreciates the complexity of mental health challenges, it is more fitting to use language that reflects empathy and neutrality, rather than implying culpability.  By adopting phrases such as “died by suicide,” “ended their life,” or “attempted suicide” legal practitioners acknowledge the profound despair and social or psychological factors that may have contributed to a person’s actions, rather than suggesting criminality or any degree of blame. These more sensitive choices of words also align with contemporary efforts to destigmatise mental health difficulties, recognising that individuals who feel driven to suicide need compassionate support rather than judgement.  In family court proceedings, especially those involving young children, the written record of events endures long after the hearing has concluded. The documents placed before the court can resurface in a child’s life later on, often when they reach adulthood, and the language used in those records may shape how they perceive their parent’s or relative’s struggles, possibly shaping their own struggles.  If children discover references to a loved one as having “committed” an act akin to a crime, they may feel that person is being condemned or blamed, which can compound the emotional toll on a family already grappling with tragedy. In contrast, a neutral phrase such as “she died by suicide” conveys the difficult reality without suggesting guilt, offering a more measured and supportive tone for the child who might later read these reports.  When speaking in open court, counsel and judges alike can maintain a respectful atmosphere by avoiding language laden with historical stigma. Simple adjustments – saying “she took her life in June 2022” or “he attempted suicide following a period of acute depression” – allow the court to focus on the relevant facts of the case without further burdening those who have suffered a distressing loss. This approach does not obscure the gravity of what has occurred; rather, it upholds the dignity of everyone involved and fosters an environment in which mental health issues can be addressed more openly.  Some are likely to ask why such a seemingly minor shift in vocabulary matters, to consider this hill “woke”, or question whether this truly constitutes an essential “hill to die on” in the midst of complex family proceedings. Yet the language we choose to employ sets the tone of our interactions, the record we leave behind, and the compassion we show to those enduring profound pain.  Family cases are often among the most emotionally charged in the legal system, and the documents emanating from these proceedings can resonate for years to come. Ensuring that our words reflect empathy, and an up-to-date understanding of mental health challenges is therefore not merely a linguistic preference; it is a crucial aspect of safeguarding the emotional well-being of individuals and families well beyond the conclusion of a case. In short, professionals have a greater obligation to those involved in proceedings than simply offering advice and representation.  Ultimately, by moving away from phrases that connote wrongdoing, legal professionals can better serve the interests of justice and humanity alike. In doing so, they acknowledge that suicide, decriminalised half a century ago, remains a profoundly tragic outcome of an individual’s suffering, rather than an act deserving of blame. This small but significant change in language supports a more compassionate discourse, helping to ensure that families in the throes of crisis are met with the sensitivity and support they so urgently require.  ___  <a href="https://www.parklaneplowden.co.uk/our-barristers/avaia-williams-pupil/">Avaia</a> has volunteered with the Nightline Association and ShoutUK as a crisis intervention worker, supporting over 150 individuals in mental health crises, and has delivered talks to charity groups, schools, and government departments on the impact of youth mental health on safeguarding.

Challenging the Suitability of Expert Witnesses in the Coroner’s Court: R (Gamesys Operations Ltd) v HM Senior Coroner Inner London South [2025] EWHC 659

In this judicial review claim, the Administrative Court considered the extent of the coroner’s discretion to call expert evidence and whether expressing an opinion on a matter renders an expert unsuitable due to bias.  Facts  In preparation for an inquest into the death of Mr Adams, who had died in 2020 from cardiac arrhythmia and an overdose of medication, the coroner intended to explore whether gambling, or an undiagnosed gambling addiction, had contributed to his death. Professor Dame Clare Gerada was instructed as an expert in gambling addiction/disorder.  The Claimant and interested party in the inquest, Gamesys Operations Ltd, objected to her appointment claiming that she was biased. Instead, they proposed the instruction of Dr Frazer, a consultant psychiatrist with expertise in gambling disorders.  In response, the coroner chose to instruct both Professor Gerada and Dr Frazer. This failed to satisfy the Claimant, and they issued a judicial review claim. After being refused permission on the papers at first, they renewed their application at an oral hearing. The application was heard by Mrs Justice Lang.  Allegations of bias  The Claimant’s core submission was that Professor Gerada was biased on the basis that she was a “leading antigambling campaigner” who held a fixed and strong negative view on gambling herself. They further submitted that she was unsuitable because she had previously publicly advocated for gambling to be recorded as a causative factor in suicide inquests, led the NHS primary care gambling service funded by “Gamble Aware” and had recently given written evidence to a Select Committee Inquiry contrary to the position of the Claimant.  The Claimant also made allegations of personal conflicts of interest because Professor Gerada had previously been recommended to the coronial court by the family’s solicitors, Leigh Day, her son was a solicitor at Leigh Day and because until 2014, Mr Adams and his family had attended the GP surgery where she practised.  Grounds of challenge  There were four grounds of review:  <ol class="wp-block-list"> <li>The coroner had failed to take into account of or did not accord sufficient weight to concerns about independence and impartiality raised by the Claimant in making his decision on expert evidence.</li>  <li>Professor Gerada was so obviously partisan that her appointment as expert infected the coroner with bias or gave reasonable apprehension of bias.</li>  <li>The coroner’s decision was irrational because no reasonable coroner would have appointed Professor Gerada as an expert witness.</li>  <li>The coroner did not provide adequate reasons for his decision.</li> </ol>  The family of Mr Adams opposed the Claimant’s application for judicial review, largely on the basis that Professor Gerada had exercised her duty of independence to the court on numerous occasions and was well-placed to assist the coroner on the issues being investigated.   Judgment  Wednesbury unreasonableness  The Court re-asserted the well-established principle that the coroner’s duty to ensure that relevant facts are fully investigated encompasses a broad discretion on which expert witnesses to call. When the exercise of that discretion is challenged, the Court must consider whether it is Wednesbury unreasonable.<a href="#_ftn1" id="_ftnref1">[1]</a> Mrs Justice Lang commented that the threshold is very high and it is clear that the Court “cannot dictate what witnesses the coroner calls”.<a href="#_ftn2" id="_ftnref2">[2]</a>  Irrationality  The Court found that the Claimant had no prospect of success in a rationality challenge. The expertise and qualifications of Professor Gerada were convincingly strong and different to those of Dr Frazer. By inviting both to give evidence, the coroner had made a scrupulously fair and balanced decision.  The suggestion that the coroner had not taken into account the Claimant’s concerns about impartiality and independence was not credible given the extensive submissions the coroner had invited on the subject. The weight afforded to those concerns, and the balance given to the family’s opposing position, was a matter for his discretionary judgment and not for the Court.  In this respect, Mrs Justice Lang noted the Claimant’s own interests in protecting its business reputation and success. She commented that protecting those interests was not the purpose of the inquest, but in any event, it was apparent that the coroner would ensure that evidence given by Professor Gerada did not go beyond the circumstances of Mr Adams’ death and stray into the political aspects of safeguarding potential problem gamblers.  Bias and fairness  Finally, the Court found that in assessing the lawfulness of the coroner’s approach, the most important consideration is one of fairness. Independence and impartiality of an expert may be relevant in considering fairness, but the test is not one of apparent bias, as the Claimant submitted.  In the context of an inquest, the test for fairness must be broad to encapsulate the inquisitorial nature and very broad powers of the coroner. Accordingly, a conflict of interest compromising the independence of an expert will ordinarily only arise when their opinion is or may be influenced by their personal interests. In applying this principle, Mrs Justice Lang found that Professor Gerada was not an unsuitable expert due to her professional interests in and views on addiction and gambling disorders as she was capable of adhering to her duty of independence. The alleged personal conflicts raised by the Claimant were immediately dismissed on the basis that those connections were insufficient to give rise to any arguable conflict.  Ultimately, the Court found that the coroner had conducted the proceedings in a scrupulously fair way and the allegation that inviting Professor Gerada to give evidence infected the coroner with bias was unarguable and had no prospects of success.  Comment  Unsurprisingly given the coroner’s wide discretion, the Administrative Court will be slow to interfere with a coroner’s decision on witnesses. Even when an expert has previously expressed apparently partial views on an issue, it will be difficult to bar them from giving evidence at an inquest when they are capable of adhering to their duty of independence.    It may not have assisted the Claimant that they challenged the coroner’s decision before any expert evidence had been written or conclusions made. The Administrative Court is likely to be even slower to interfere with a coroner’s procedural decision when the impact on the conclusion of the inquest has not yet crystallised. It appears, in this case, the coroner went above and beyond to maintain the fairness of the procedure and as a result, the Court was bound to respect his decision-making.  The judgment is available <a href="https://www.bailii.org/ew/cases/EWHC/Admin/2025/659.pdf" target="_blank" rel="noreferrer noopener">here</a>.  <a href="https://www.parklaneplowden.co.uk/our-barristers/georgia-banks-pupil/" target="_blank" rel="noreferrer noopener">Georgia Banks</a> is a second six pupil in Chambers and can now receive instructions in personal injury, clinical negligence and inquests.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> R (McGuire) v Assistant Coroner for West Yorkshire [2018] EWCA Civ 6.  <a href="#_ftnref2" id="_ftn2">[2]</a>  R (Lin) v Secretary of State for Transport [2006] EWHC 2575 (Admin), at paragraph 56, per Moses LJ).

Demystifying AI for Barristers: Opportunities, Challenges, and Ethical Considerations

Julia Nelson writes for The Barrister Magazine.  Artificial Intelligence (AI) is reshaping industries and professions and the Bar is no exception. Generative AI and Large Language Models (LLMs), like ChatGPT, offer barristers wide ranging helpful tools including for research, drafting, and case analysis. However the use of AI where we have sensitive client data also raises ethical, regulatory, and professional concerns.  Understanding AI's capabilities and limitations is crucial for its responsible integration into any barristers' practice. This article explores AI's nature, existing guidance, its benefits and risks, and its future in the profession.  To read Julia's article, please click <a href="https://www.parklaneplowden.co.uk/app/uploads/2025/04/Demystifying-AI-for-Barristers.pdf" target="_blank" rel="noreferrer noopener">here</a>.

Practice Direction 57AD – Disclosure in the Business and Property Courts

Introduction  A disclosure pilot scheme (known as PD51U) operated in the Business and Property Courts (the “BPC”) in a number of courts including Leeds, Manchester, Newcastle, and London from 1st January 2019.  Practice Direction 57A (“PD57A”) substantively reproduces PD51U and came into force on 1st October 2022.  Eighteen months on, my experience of PD57A is that it is still slowly filtering through to practitioners and courts, notwithstanding that for practitioners in Leeds, Manchester, Newcastle, and London, these provisions (or some very similar) have been in force for over five years.  This article hopes to de-mystify PD57A and provide some practical assistance to those still grappling with the provisions<a href="#_ftn1" id="_ftnref1">[1]</a>.  You will however still need a copy of the most up to date PD57A to hand, and I apologise in advance for the number of acronyms used.  When does PD57A apply?  The first thing to ascertain is whether PD57A applies to your case, or whether you’re still looking at disclosure under CPR 31.  The clue here is in the title of the article - PD57A applies to existing and new proceedings in the BPC (whether London or the provinces).  It does not apply in the County Court and it does not apply to proceedings which are  <ul class="wp-block-list"> <li>Proceeding under Part 8</li>  <li>Within a fixed costs or capped costs regime</li> </ul>  Which Regime?  Under Appendix 5 of PD57A you will find provisions for a simplified disclosure regime for Less Complex Claims (“LCC”).  An LCC is a claim which by virtue of its nature, value, complexity, and the likely volume of Extended Disclosure (“ED”) may not benefit from the full procedure set out in the main body of Practice Direction 57AD.  Deciding whether your claim is a LCC is akin to deciding to which track your case should be allocated.  If the value of the claim (both financial and non-monetary) is less than £1M then the starting point is LCC, but the other factors (nature, complexity etc) can tip a claim under £1M into the full regime and cases over £1M into a LCC.  The parties can agree to treat a claim as LCC or the court can order it.  If your claim is LCC, you follow the provisions under Appendix 5, so this is something that needs to be agreed at the outset.  If LCC is not agreed, the LCC regime does not apply unless and until the court makes an order to the contrary.  The court may make such an order upon its own volition or by application by any party.  LCC Regime  My experience is that most practitioners agree to designate their cases as LCC and I have therefore considered this regime first so that when you read the main provisions you have in mind the parts which don’t apply or which are varied on the LCC.  However, I’m afraid you still have to read the notes for the Full Regime below as I have not repeated the relevant parts of the Full Regime here.  For LCC, Appendix 5 varies the provisions in the main body of PD57A – paragraph 1 of Appendix 5 provides that all the provisions of the main body apply unless they are expressly varied by Appendix 5.  The simplified LCC procedure is found at paragraph 10 of Appendix 5.  ED is confined to Models A, B, or D.  Models C and E are not available for a LCC (Models considered under Full Regime below).  The relevant Disclosure Review Document (“DRD”) for a LCC (which is referred to in the PD as the “LCCDRD”) is that set out at Appendix 6, and the timetable is that which appears at paragraphs 7 and 10 of the main body and Appendix 7.  The LCCDRD only needs to be completed where one or more parties are seeking ED.  If nobody wants ED or only Models A or B are proposed, there is no need to complete a DRD.  If, however, in circumstances where Model B is proposed, the parties believe that it would be of assistance to identify and agree upon on List of Issues for Disclosure (or to complete any other sections of the LCCDRD), they may agree to do so.  It is the Claimant’s responsibility to ensure that the LCCDRD is completed and a single agreed version filed with the court (although the parties can agree to pass this responsibility to another party).  Completing the LCCDRD – don’t forget that the relevant DRD for a LCC is at Appendix 6.  The only mandatory part of the LCCDRD is section 1 - “Issues for Disclosure and Disclosure Model Proposals”.  The rest of the LCCDRD should only be completed if applicable and relevant.  Paragraph 9 of Appendix 7 encourages the parties to confer about the LCCDRD in person rather than by letter/email, and my experience suggests that this is very good advice.  The timetable for completing the LCCDRD is set out at paragraph 13 of Appendix 7, and I have set this out below.  The parties may agree to revise the timetable provided it does not affect the date set for the CMC.  NOTE – the first deadline in the timetable is “within 28 days of the closure of statements of case”.   HOWEVER  - also remember that under paragraph 5 of the main regime, each party must provide to all other parties at the same time as its statement of case an Initial Disclosure List of Documents with copies of those documents.  Disclosure is not something that can be considered ‘later’.  It needs to be in the forefront of your mind from the start of your involvement with the case,  Timetable for completing the LCCDRD  <figure class="wp-block-table"><table class="has-fixed-layout"><tbody><tr><td></td><td>Stage to be completed</td><td>Deadline</td></tr><tr><td>Step 1</td><td>Each party should state, in writing, whether or not it is likely to request Extended Disclosure Models A, B and/or D on one or more issues in the case. At this point it should not particularise the Model(s) or the issue(s) in the case.</td><td>Within 28 days of the closure of statements of case</td></tr><tr><td>Step 2</td><td>Where one or more of the parties has indicated it is likely to request search-based Extended Disclosure (i.e. Models D), unless the parties agree otherwise, the claimant must prepare and serve on the other parties a draft List of Issues for Disclosure unless the equivalent of such a list has already been agreed between the parties (for example, as part of a fuller list of issues). At the same time, the claimant shall identify for each Issue for Disclosure which Model of Extended Disclosure it proposes for each party. If the claimant fails to take these steps, the defendant may, but is not obliged to, prepare and serve its own draft List of Issues for Disclosure on the other parties.</td><td>Within 42 days of the closure of statements of case</td></tr><tr><td>Step 3</td><td>A party served with a draft List of Issues for Disclosure and proposals on Models shall indicate within section 1 of the LCCDRD whether it agrees with the proposed Issues for Disclosure and corresponding Model(s) for Extended Disclosure by completing the “Issue Agreed” and “Model Agreed” columns in section 1. If the party does not agree, or wishes to propose alternative or additional Issues for Disclosure or other Models, it should set out its alternative or additional proposals in section 1 of the LCCDRD and briefly explain and set out in section 6 of the LCCDRD the reasons why it disagrees with the Issues for Disclosure or Models proposals of the other party the reasons for the alternative proposals it is proposing.</td><td>As soon as practicable but in any event no later than 21 days after service of the draft List of Issues for Disclosure</td></tr><tr><td>Step 4</td><td>Having sought to agree the List of Issues for Disclosure and proposals on Model(s) for Extended Disclosure, the parties should prepare and exchange drafts of the LCCDRD (with all applicable sections of the document completed) in accordance with the guidance in Appendix 7.</td><td>As soon as reasonably practicable and in any event not later than 14 days before the case management conference</td></tr><tr><td>Step 5</td><td>The parties must seek to resolve any disputes over the scope of any Extended Disclosure sought or any other aspect of the completion of the LCCDRD.</td><td>In advance of the first case management conference</td></tr><tr><td>Step 6</td><td>Unless otherwise agreed by the parties or ordered by the court, the claimant(s) shall be responsible for ensuring that the form is completed and a single agreed version is filed with the court.  Related correspondence and earlier drafts should not ordinarily be filed.</td><td>Not later than 5 days before the first case management conference</td></tr><tr><td>Step 7</td><td>The parties must independently file a signed Certificate of Compliance substantially in the form set out in Appendix 3 to the Practice Direction.</td><td>Not less than two days before the case management conference</td></tr></tbody></table></figure>   I cannot urge you strongly enough to engage with this process as early as possible and to meet the deadlines.  If you get to CMC and you have not complied with PD57A you may find that the court simply adjourns your CMC (costing you and your clients both time and money).  It also makes it very difficult (if not impossible) for the court to determine which Model to order if the issues for disclosure have not been identified.  Both of these examples have arisen in cases I have been involved in within the last month.  In relation to the completion of the LCCDRD, ‘issues for disclosure’ has the same meaning as in the main body of PD57A:  <blockquote class="wp-block-quote"> “Issues for Disclosure” means for the purposes of disclosure only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or nonadmission. (see paragraph 7.6 main body) </blockquote>   However, the issues for disclosure in a LCC must be brief, should rarely exceed 5, and should not be defined by reference to sub-issues if that will materially increase the length and complexity of the list.  The list of issues for disclosure is not the same as the list of issues for trial, and the parties should have regard to the function of the list as set out at paragraph 10.5 of Appendix 5, which includes helping the parties to consider, and the court to determine, whether ED is required and, if so, the appropriate Model, and to identify the documents and categories of documents that are likely to exist and are required to be disclosed.  If the parties cannot agree the terms of ED, the court will determine the issue at the CMC.   Full Regime/Main Body of PD57A  Save where expressly modified by Appendix 5, these provisions also apply to a LCC.  The regime starts with initial disclosure and paragraph 5 of the main body of PD57A provides that when a party serves its statement of case, it must also provide to all other parties an Initial Disclosure List of Documents that lists and is accompanied by the key documents that party has relied on and the key documents that are necessary to enable the other side to understand the case it has to meet.  This form of disclosure is known as initial disclosure and is not required where the parties have agreed in writing to defer or dispense with it. In the event of such agreement the parties should record their reasons so as to be available to the court if requested at the CMC. Any disagreements about whether initial disclosure should be dispensed with can be referred to the court.  There is no requirement for a party to search for documents or to disclose adverse documents by way of initial disclosure.  There is also no requirement for any document disclosed by way of initial disclosure to be translated.  In Breitenbach v Canaccord Genuity Financial Planning Ltd [2020] EWHC 1355 (Ch) it was held that documents that were said to be necessary to evaluate and weigh the Defendant’s prospects of success were not key documents, as this went beyond enabling the claim to be understood.  A party seeking disclosure in addition to or as an alternative to initial disclosure must request extended disclosure (“ED”).  Where ED is sought, the parties are expected to complete the Disclosure Review Document (“DRD”) set out at Appendix 2.  ED involves using Disclosure Models which are set out at paragraph 8 of PD57A:  Model A: Disclosure confined to known adverse documents As set out in the title  Model B: Limited Disclosure The key documents a party has relied on in its statement of case and the key documents that are necessary to enable the other side to understand the case it has to meet (ie, Initial Disclosure), plus known adverse documents.  Model C: Disclosure of particular documents or narrow classes of documents The court may order a party to give disclosure of particular documents or narrow classes of documents relating to a particular Issue for Disclosure.  Model D: Narrow search-based disclosure, with or without Narrative Documents Documents which are likely to support or adversely affect a party’s claim or defence or that of another party in relation to one or more of the issues for disclosure. Under D the parties are required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure.  Model E: Wide search-based disclosure Documents which are likely to support or adversely affect a party’s claim or defence or that of another party in relation to one or more of the issues for disclosure, or which may lead to a train of inquiry which may then result in the identification of other documents for disclosure.  Although the parties can (and should where possible) agree the issues for disclosure and the Model, the court retains control and will determine whether to order ED at the CMC.  If the parties cannot agree, the court will determine disputes at the CMC.  A practical point – The parties may, at any time, ask the court to determine any disclosure issues, or provide guidance on any point concerning the operation of PD57A, by issuing an application notice.  This is worth remembering if there are significant areas of disagreement, as the standard time allowed for a CMC may not be sufficient to deal with CMC issues and disclosure.  I have recently had a CCMC adjourned to deal with budgets at a later date as the 90 minute hearing was largely taken up with disputes over disclosure.  Dealing with disclosure at a separate hearing before the CCMC would have been more appropriate.  The Court will only order search based models – C, D, E – if persuaded it is appropriate, and Model E will only be ordered in an exceptional case.  Paragraph 6.4 sets out the factors to be considered when determining whether ED should be ordered:  <ol class="wp-block-list"> <li>the nature and complexity of the issues in the proceedings;</li>  <li>the importance of the case, including any non-monetary relief sought;</li>  <li>the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;</li>  <li>the number of documents involved;</li>  <li>the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates);</li>  <li>the financial position of each party; and</li>  <li>the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.</li> </ol>  There is no presumption that a party is entitled to search based ED, and it is for the party requesting ED to show that what is sought is appropriate, reasonable, and proportionate.  When it is necessary to decide any question of what is reasonable and proportionate under a particular Model, the court will consider all the circumstances of the case including 6.4 and the overriding objective.  At paragraph 2AA-63.1 the White Book 2024 states:  Approach to determining choice of disclosure model  <blockquote class="wp-block-quote"> In McParland & Partners Ltd v Whitehead [2020] EWHC 298 (Ch), Vos C at [50]–[52] provided guidance on the approach to be taken determining the appropriate disclosure model under the disclosure pilot scheme. The same approach will apply to PD 57AD. Where a party had made a reasonable request for further documentation and disclosure could not be agreed, Model C disclosure was appropriate. Where parties did not trust each other, Model D disclosure was likely to be the simplest, most appropriate choice. Care should also be taken to consider if different disclosure models should apply to different parties. There is no reason in principle why the same issue might not be subject to disclosure Model D for one party, while it is subject to disclosure Models B or C for another party. Model D disclosure may also be appropriate in respect of issues that are central to a party’s pleaded case: Lombard North Central Plc v Airbus Helicopters SAS [2020] EWHC 3819 (Comm), Bryan J, at [20]–[30] following McParland at [51]. </blockquote>   The DRD for cases proceeding under the full regime is found at Appendix 2, and the timetable pertaining to the same is at paragraph 7 of the main body of PD57A.   Again, there is a handy timetable provided (which can be found at the end of Appendix 2).   Timetable for completing the DRD  The timetable should be read in conjunction with paragraph 7 as paragraph 7 sets out exactly what each party needs to do.  <figure class="wp-block-table"><table class="has-fixed-layout"><tbody><tr><td></td><td>Stage to be completed</td><td>PD Ref.</td><td>Deadline</td></tr><tr><td>Step 1</td><td>Each party should state, in writing, whether or not it is likely to request search-based Extended Disclosure to include one or more of Models C, D or E on one or more issues in the case. At this point it should not particularise the Model(s) or the issue(s) in the case.</td><td>Para 7.1</td><td>Within 28 days of the closure of statements of case</td></tr><tr><td>Step 2</td><td>Where one or more of the parties has indicated it is likely to request search-based Extended Disclosure (i.e. Models C, D and/or E), the claimant must prepare and serve on the other parties a draft List of Issues for Disclosure unless the equivalent of such a list has already been agreed between the parties (for example, as part of a fuller list of issues). At the same time, the claimant shall identify for each Issue for Disclosure which Model of Extended Disclosure it proposes for each party. If the claimant proposes Model C Disclosure for any Issue for Disclosure it should indicate, using Section 1B of the Disclosure Review Document, the particular documents or narrow class of documents it proposes should be defined for that purpose. If the claimant fails to take these steps, the defendant may, but is not obliged to, prepare and serve its own draft List of Issues for Disclosure on the other parties together with its proposals on Models and any Model C requests.</td><td>Para 7.2</td><td>Within 42 days of the closure of statements of case</td></tr><tr><td>Step 3</td><td>A party served with a draft List of Issues for Disclosure and proposals on Models shall indicate using Section 1A (and, if applicable, 1B) of the Disclosure Review Document whether it agrees with the proposed Issues for Disclosure and corresponding Model(s) for Extended Disclosure (including any proposals as to how Model C Disclosure should be defined). If the party does not agree, or wishes to propose alternative or additional Issues for Disclosure, other Models and/or other Model C proposals, it should set out its alternative or additional proposals in Sections 1A and 1B of the Disclosure Review Document.</td><td>Para 7.9</td><td>As soon as practicable but in any event no later than 21 days after service of the draft List of Issues for Disclosure</td></tr><tr><td>Step 4</td><td>The parties must discuss and seek to agree the draft List of Issues for Disclosure, the Models identified for each Issue for Disclosure, and the wording of any Model C proposals. They should consider whether any draft Issue for Disclosure can be removed.</td><td>Paras 7.10 and 10.6</td><td>In advance of the first case management conference</td></tr><tr><td>Step 5</td><td>Having sought to agree the List of Issues for Disclosure, proposals on Model(s) for Extended Disclosure and the wording of any Model C requests, the parties should prepare and exchange drafts of Section 2 of the Disclosure Review Document (including costs estimates of different proposals, and where possible estimates of the likely amount of documents involved). Section 2 of the Disclosure Review Document should be completed only if the parties are seeking an order for Extended Disclosure involving a search-based Disclosure Model (i.e. Models C, D and/or E).</td><td>Para 10.5</td><td>As soon as reasonably practicable and in any event not later than 14 days before the case management conference.</td></tr><tr><td>Step 6</td><td>A finalised single joint Disclosure Review Document should be filed by the claimant. Related correspondence and earlier drafts should not ordinarily be filed..</td><td>Para 10.7</td><td>Not later than 5 days before the case management conference</td></tr><tr><td>Step 7</td><td>The parties must independently file a signed Certificate of Compliance substantially in the form set out in Appendix 3 to the Practice Direction</td><td>Para 10.8</td><td>Not less than two days before the case management conference</td></tr></tbody></table></figure>   Guidance on completing the DRD is found at paragraph 10 and in the explanatory notes which come after the DRD in Appendix 2.  Adverse Documents  “Adverse Documents” and “known adverse documents” are defined at paragraphs 2.7 and 2,8:  2.7 Disclosure extends to “adverse” documents. A document is “adverse” if it or any information it contains contradicts or materially damages the disclosing party’s contention or version of events on an issue in dispute, or supports the contention or version of events of an opposing party on an issue in dispute, whether or not that issue is one of the agreed Issues for Disclosure.  2.8 “Known adverse documents” are documents (other than privileged documents) that a party is actually aware (without undertaking any further search for documents than it has already undertaken or caused to be undertaken) both (a) are or were previously within its control and (b) are adverse.  Note as well that a company or organisation is “aware” if any person within the company/organisation with accountability or responsibility for the events or circumstances which are the subject of the case or for the conduct of the proceedings is aware, and at paragraph 2.9 it is expressly said that it is necessary to take reasonable steps to check the position with relevant persons who have left the company/organisation.  If an order for ED is made, the disclosure made must also include any known adverse documents not already disclosed.  If ED is not ordered, all known adverse documents must be disclosed within 60 days of the first CMC, and a Disclosure Certificate provided.   Complying with ED  Paragraph 12 sets out how to comply with an order for ED:  <ul class="wp-block-list"> <li>service of a signed Disclosure Certificate (Appendix 4) confirming all known adverse documents have been disclosed</li>  <li>service of an ED Disclosure List of Documents</li>  <li>production of the documents</li> </ul>  Note paragraph 12.5 -  12.5 A party may not without the permission of the court or agreement of the parties rely on any document in its control that it has not disclosed at the time required for Extended Disclosure (or within 60 days after the first case management conference in a case where there will be no Extended Disclosure). For the avoidance of doubt the party and its legal representatives remain under the duties under paragraph 3.1 (the Disclosure Duties) and 3.2 above.  Where there has been a failure to comply with ED the court may make orders which may include ordering the service of a further, or revised Disclosure Certificate, to make further searches, provide a further or improved Extended Disclosure List of Documents, produce documents, or make a witness statement explaining any matter relating to disclosure.  A party applying for such an order should normally file a witness statement in support and must satisfy the court that making the order is reasonable and proportionate (paragraph 17).  A court may, at any stage, make an order varying an order for ED.  Any party applying for such an order must file a witness statement, and must satisfy the court that varying the original order is both necessary for the just disposal of the proceedings, and that it is reasonable and proportionate (paragraph 18).  Paragraph 14 deals with the right to withhold documents, paragraph 15 deals with confidentiality, and paragraph 16 deals with redaction.  Pursuant to paragraph 21, a party may at any time request a copy of a document mentioned in  <ul class="wp-block-list"> <li>a statement of case</li>  <li>a witness statement, summary, or affidavit</li>  <li>an expert’s report</li> </ul>  Costs  Parties are required to provide an estimate of what they consider to be the likely costs of giving the disclosure proposed by them in the Disclosure Review Document, and the likely volume of documents involved, in order that a court may consider whether such proposals on disclosure are reasonable and proportionate.  In cases where the cost budgeting scheme applies, if it is not practical to complete the disclosure section of Form H in relation to disclosure prior to the court making an order in relation to disclosure at the CMC, the parties may notify the court that they have agreed to postpone completion of that section of Form H.  The court will give a date at the CMC for completion of the disclosure section, and where possible the court will then consider (and if appropriate, approve) that part of the cost budget without an oral hearing.  Nicola Phillipson Parklane Plowden Chambers May 2024  This article has been written by a trusts and probate practitioner for the benefit of practitioners who attended Parklane Plowden’s Annual Trusts Conference in June 2024.  Therefore, whilst this article may be of use to other practitioners, please be aware of the intended audience.  This article is also intended to provide guidance only and should not be relied upon as legal advice.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a id="_ftn1" href="#_ftnref1">[1]</a> Please see disclaimer above – this article has been written with trusts practitioners in mind

Interest Adds Up: Main v SpaDental Ltd [2024] EAT 200

Facts  The Appellant, a dentist, worked for the Respondent company, SpaDental Ltd, for several years. He claimed unpaid holiday pay on the basis that he was a ‘worker’ under section 230(3) Employment Rights Act 1996 (“ERA”).  After litigating the issue from 2019 to 2022, it was established that he was indeed a worker for the purposes of section 230(3). A remedy hearing was listed. This case note is on the 2024 EAT hearing, which was an appeal concerning issues on remedy only.  The claim largely concerned holiday pay. The claim was made as one for unlawful deductions from wages under section 23 of the ERA.   Relevant Law  The main legal framework engaged was the Working Time Regulations 1998 (“WTR”).  Regulation 13 of the WTR sets out a worker’s entitlement to annual leave. This includes payment in lieu of untaken leave where the worker’s employment is terminated.  Regulation 16 deals with payment in respect of periods of leave.  Regulation 30 outlines remedy in the form of compensation. It gives an employment tribunal discretion to award an amount which is just and equitable – regulation 30(4).  Article 6 of the Equal Treatment Directive 76/207/EEC was also relevant. It does not impose a limit to the reimbursement of loss and damage sustained by a person, nor is there an exclusion of an award of interest to compensate for the loss sustained.   Issues  There were two issues to be considered:  <ol class="wp-block-list"> <li>Did the claim vest in the trustee in bankruptcy?</li>  <li>Was the Appellant entitled to interest on the holiday pay owed by the Respondent?</li> </ol>  The remaining issues were agreed. It was also agreed that EU law applied as the facts of the case occurred before the UK left the EU.    Focus is on the second ground of interest.   Submissions  On the second ground, the Appellant argued that interest was an essential component of compensation and the principles of effectiveness and equivalence applied. It was also submitted that policy reasons were a crucial consideration:  “Were it not so, employers would have a financial incentive for non-compliance with the WTR even if they might eventually be ordered to pay the holiday pay, and could gain a competitive advantage from non-compliance.”  at [75].  The Respondent argued that the principle of equivalence was irrelevant because the domestic provisions on interest in civil court cases are discretionary. The respondent accepted that the employment judge was entitled to consider the parties’ interactions, the passage of time and regulation 30.   Outcome  The EAT held that:  <ol class="wp-block-list"> <li>The first issue was correctly decided at first instance – the Claimant’s claim brought against the Respondent to provide him with paid leave was a proprietary claim which vested in his trustee in bankruptcy.</li>  <li>The employment tribunal at first instance erred in its refusal to award any “interest-like” compensation.</li> </ol>  The interest in this case involved substantial figures. It added £42,082 on top of the original award of £83,573, calculated at 8% running from the mid-point of each leave year. The rate of interest was accepted as post-judgment interest.  EU law was not necessary to be considered and the principle of equivalence “does not add anything of significance to the present case” at [87].   Analysis on Interest Issue  This case is important for two main reasons:  <ol class="wp-block-list"> <li>It clarifies (or perhaps expands) the discretion of the employment tribunal to award interest on compensation under the WTR.</li>  <li>It sets out clear factors that the employment tribunal should consider.</li> </ol>  Firstly, the employment tribunal does not have an express power to award interest accruing before judgment on compensation or other sums under the Working Time Regulations or Employment Rights Act. It is accepted that interest is granted for sex discrimination and equal pay awards following Marshall v Southampton and SW Hampshire AHA (No 2) [1994]. Here, the ECJ held that to not award interest would be contrary to Article 6 Equal Treatment Directive. Interest is now pursuant to the Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The 1996 Regulations apply to awards under the Equal Pay Act 1970, as well as awards resulting from successful sex, race and disability discrimination claims.  The judgment is significant because it may open the door to awards of interest on compensatory awards for other claims, like unfair dismissal. It was decided that the wording of Regulation 30 of the Working Time Regulations was wide enough to grant a compensatory award that includes interest or an “interest-like” payment. Therefore, it is possible that other tribunals will decide they have discretion to award interest in other cases too. Where the award is substantial or the time passed is significant, the interest can amount to a generous sum. It is therefore a crucial consideration in remedy hearings.  Secondly, Bourne J outlined 5 distinct factors at paragraph 62 to be considered when awarding interest in a Working Time Regulation case:  <ol class="wp-block-list"> <li>Regulation 30(4)</li>  <li>What is just and equitable</li>  <li>The nature of the company’s default</li>  <li>Any loss sustained by the Claimant</li>  <li>Significance of the sums involved</li> </ol>  Interest will not be awarded automatically following this case. It was not clear whether these are five strict criteria to be followed each and every time. It was also not established if all 5 factors are required for interest to be awarded.  Therefore, both parties should assess whether some, if any, factors are satisfied and assess this on a reasonable basis.  Marshall was the clear influence in this appeal. The Court in Marshall explained that “full compensation” for “loss and damage” includes the factor of reduction in value by effluxion of time. Bourne J in Main indicated at paragraph 86 that this “factor must be brought into account”. This is useful in practice in support of an argument that the 5 factors above are not exhaustive. In practice, parties should bear in mind the passage of time and how this will impact the final sum awarded. A common-sense approach is implicitly endorsed.  This case reminds practitioners to bear in mind interest on compensation in remedy hearings. Whether representing claimant or respondent, it may amount to a significant sum. The Tribunal is yet to establish any hard and fast rules, so this discretion and flexibility may be a useful advantage where relevant.  The full judgment can be found <a href="https://assets.publishing.service.gov.uk/media/676945103229e84d9bbde9f0/Mr_James_Main_v_SpaDental_Ltd_and_Timothy_Alexander_Close__In_His_Capacity_as_Trustee_in_Bankruptcy_of_Mr_Main___2024__EAT_200.pdf" target="_blank" rel="noreferrer noopener">here</a>.

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