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<em>Crompton v Meadowcroft </em>[2021] EW Misc 20

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Bharat&nbsp;Jangra</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pupil barrister Bharat&nbsp;Jangra examines the decision of Deputy District Judge Ayers in the case of <em>Crompton v Meadowcroft</em> [2021] EW Misc 20 regarding the exceptionality test under CPR 45.29J and the fixed costs regime.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This claim arose following an RTA on 7 January 2017. The claim was entered into the portal on 9 January 2017, and exited 15 days later. Liability was admitted on 8 March 2017.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Proceedings were issued in early 2020, in July 2020 the Claimants agreed to the Defendant’s settlement offer. However, whilst settlement negotiations were ongoing the court had sent out directions questionnaires, which were completed and filed with the court. On 10 September 2020, the court allocated this matter to the multi-track.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The issue before the Court was whether the Claimant’s solicitors were limited to the fixed costs regime or whether they would be able to obtain their costs on the standard basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Parties’ Submissions</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>CPR45.29B provides the following:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) the fixed costs in rule 45.29C;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) disbursements in accordance with rule 45.29I.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The phrase <em>“and for as long as the case is not allocated to the multi-track”</em> being added following the decision in <em>Qader v Esure Services Limited</em> [2016] EWCA Civ 1109.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendant’s contention was that as this case had been issued in the portal and had settled prior to allocation to the multi-track, the fixed costs regime should therefore apply. Here it may have been <em>“…</em><em>the case that the claimant’s representatives carried out an amount of work that was greater than will be properly reimbursed under the fixed costs regime, but they have to take that on the chin because that is the nature of the scheme</em><em>…” </em>(para. 9)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the Claimant contended that the costs in this case should not be restricted to the fixed costs regime on the basis that the case was ‘exceptional’ further to CPR45.29J, which states:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(2) If the court considers such a claim to be appropriate, it may—</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) summarily assess the costs; or</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) make an order for the costs to be subject to detailed assessment….”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant submitted that this was not a straightforward case and met the exceptional circumstances, a high bar as per <em>Ferri v Gill</em> [2019] EWHC 952 (QB), due to the following:</p> <!-- /wp:paragraph --> <!-- wp:group --> <div class="wp-block-group"><!-- wp:group --> <div class="wp-block-group"><!-- wp:list --> <ul><li>The number of experts involved;</li><li>Extensive medical disclosure;</li><li>The Claimant’s solicitors had to consider that the Claimant may suffer disablement as a result of her injuries;</li><li>Reference had to be made to the Ogden tables to calculate future losses; and</li><li>The agreed settlement figure was outside the fast-track limit.</li></ul> <!-- /wp:list --></div> <!-- /wp:group --></div> <!-- /wp:group --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In these circumstances, the Court did consider that the exceptionality bar had been met and <em>“</em><em>that the work required by those representing the claimant was significantly greater than might have been anticipated … I&nbsp;do deem it appropriate to allow the claimant to depart from the fixed costs regime so as to be properly reimbursed in respect of the work done and the costs incurred on their client’s behalf.” </em>(para. 13)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><span style="text-decoration: underline;"><a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/" target="_blank" rel="noreferrer noopener">Bharat&nbsp;Jangra</a></span> is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers offer specialist pupillages based within either our Civil &amp; Employment teams, our Family&nbsp;Team&nbsp;or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Interested in applying for Pupillage at Parklane Plowden?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If you are interested in applying for Pupillage at Parklane Plowden join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>More information on available at <a href="https://www.parklaneplowden.co.uk/pupillages/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">www.parklaneplowden.co.uk/pupillages</span></a></p> <!-- /wp:paragraph -->

<em>Celine Martin v Salford Royal NHS Foundation Trust </em>: the question of double recovery in care claims when there is a pre-existing state funded care package

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Anna Datta</span></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The central issue in this assessment of damages case was whether the provision of state-funded care was a sufficient reason to refuse to award future care costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a result of the Defendant’s negligence, the Claimant had suffered physical injuries and a brain injury that had resulted in severe neurological impairment. The Claimant also had a pre-existing diagnosis of Emotionally Unstable Personality Disorder and paranoid schizophrenia which had led to an extensive psychiatric history.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s care requirements could be separated into her mental health needs (which the Defendant was not responsible for) and her physical needs (which were as a result of the negligence). The Claimant was in receipt of a package of care, funded through s.117 Mental Health Act 1983, which supported both her mental health and physical needs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Quantum</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although there were several quantum issues, the most interesting was in respect of the Claimant’s future care package.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant brought a claim for a privately funded care package, which would meet both her mental health and physical needs. The Defendant contended that as the Claimant would continue to receive s.117 funded care, which also covered her physical needs, an award for future care would result in double recovery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Judge Bird considered whether the Claimant’s s.117 care was sufficient to put her in the position she would have been in had the negligence not occurred. He noted that the Claimant had a good relationship with carers and that she was happy with the care provided. The Judge, however, applied weight to the evidence that she had also requested a more extensive package of care at home. Judge Bird accepted the Claimant’s evidence that she wanted <em>‘more support than the package provides her with’</em> and concluded that the s.117 care package was not sufficient to put her in the position she would have been in but for the negligence. He therefore found that she was entitled to an award for care for the entirety of her expected lifetime.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With regard to the Defendant’s argument in respect of double recovery, Judge Bird commented that <em>‘I am satisfied that any possibility that Miss Martin might continue to take advantage of section 117 provision for her physical care, whilst it cannot be entirely discounted, is not sufficient for me to make any adjustment to the award.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Capacity</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was an issue as to whether the Claimant had capacity to manage and control any money awarded.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was accepted by all parties that the Claimant had an impairment of the mind or brain. Judge Bird preferred the expert opinion who had assessed the Claimant in a ‘<em>real life setting’</em> rather than a <em>‘controlled clinical setting’</em>. In Judge Bird’s opinion, this allowed the expert to see the Claimant <em>‘balance the demands on her time, recall details, juggle facts and make decisions’ </em>and was preferrable to psychometric testing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge accepted the Claimant was vulnerable, he found however that this was due to her personality disorder rather than her brain injury. The Judge applied substantial weight to the Claimant’s father’s evidence that his daughter had sought his advice regarding lending £10,000. In the Judge’s opinion, this showed that she had retained information (as she had been able to relay it to her father), that she had insight into her vulnerability (as she had sought her father’s advice) and that she was then capable of accepting and acting on that advice. &nbsp;The Judge therefore concluded the Claimant had capacity and thus was not entitled to Court of Protection and Deputy costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The adequacy of the state funded care is crucial to the assessment of double recovery. In many cases, state funded care is unlikely to be sufficient to place the Claimant in the position they would have been but for the negligence, especially if there is a requirement for expensive care costs such as overnight care.&nbsp; Where the state funded care is not adequate, it seems that double recovery will not be a barrier for a claim for a more extensive care package even if there is an overlap in the care provided.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is also a useful reminder of the evidence required in capacity cases. Significant weight is likely to be placed on an assessment which follows a pragmatic rather than theoretical approach to the Claimant’s ability to understand, retain and weigh up information.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong> </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Anna Datta</span></a>, specialises in Clinical Negligence and Court of Protection work and has experience in cases where there are an overlap in these two areas. </p> <!-- /wp:paragraph -->

Covid-19 Vaccinations for Looked After Children: C (Looked After Child) (Covid-19 Vaccination)[2021] EWHC 2993 (Fam)

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Chloe Branton</span></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>C, a boy almost 13 years old, is a looked after child following the making of a care order in 2015. C wishes to be vaccinated with the winter flu and Covid-19 vaccines. On 12 September 2021 it was announced that Covid-19 vaccination would be offered to 12-15 year old children, and the winter flu vaccine for school years 7-11 was added to the flu vaccine programme on 13 October 2021. C informed his Mother at supervised contact on 22 September 2021 that he wished to be vaccinated for Covid-19, and confirmed this to his social worker the next day. The LA and CG considered it in C’s best interests, with C’s Father supporting C’s decision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>C’s Mother was strongly opposed to him being vaccinated and had informed CSC of her opposition to the Covid-19 vaccine on 13 September 2021. She wrote to the LA on 23 September 2021 and enclosed a signed “Vaccine Refusal Declaration”. The Mother’s case remained that she wanted compelling evidence that the vaccines were both safe and effective for C. She did not accept that the national programmes were based on sound evidence, and she did not accept that either vaccine would be effective in protecting C or other children. The Mother also stated she would hold the court responsible if C suffered an adverse reaction, whilst acknowledging that he had no known health conditions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The LA sought confirmation from the High Court that it is authorised to exercise PR and consent to vaccinations under s33 Children Act 1989. The LA’s application for a declaration under the inherent jurisdiction of the High Court was issued on 25 October 2021. The case was brought because of: (i) the Mother’s implacable opposition, (ii) the point on these specific vaccinations not having yet been tested in Court, and (iii) for the court to exercise its inherent jurisdiction to declare it in C’s best interests to have the vaccinations if the LA does not have the power under s33.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court considered s33 Children Act 1989 regarding the exercise of PR by an LA, in line with the current authorities around vaccination, including <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> [2020] EWCA Civ 664. It was agreed that the Court of Appeal held in <em>Re H</em> that an LA with a care order can arrange and consent to vaccination of a child in its care where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents. The parties were unable to identify a judgment in a public law case concerning either the Covid-19 or winter flu vaccination programmes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judgment of MacDonald J in the private law vaccination case of <em>M v H and PT</em> [2020] EWFC 93 was also considered. This judgment, it was noted, was confined to the vaccines of the NHS vaccination schedule. At the time of that judgment the adult Covid-19 vaccination programme was in its early stages with no such programme on the vaccination of children. MacDonald J’s obiter comments at [4] were raised, however, given he had stated:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“… it is <u>very</u> difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidence contraindication specific to that subject child.” </em>[emphasis in the original]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, the court considered the “Gillick Competence” test as per<em> Gillick v West Norfolk and Wisbech Area Health Authority </em>[1985] 3 WLR 830. In this case, Poole J noted the child was almost 13 and strongly in favour of being vaccinated. Poole J examined <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> and noted that that particular case dealt with very young children. &nbsp;The court reiterated that the assessment of whether a child is indeed Gillick competent is both child-specific and decision-specific, and that the decision of a Gillick competent child will not necessarily be determinative and can be overridden by the court. Finally, a 12-year old cannot be conclusively be presumed Gillick competent in relation to a vaccination decision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In terms of the question of Gillick competence, Poole J noted that if a Gillick competent child were to refuse vaccination it would raise different questions than that to be looked at here (overriding the views of a parent). He noted that the LA overriding a child’s decision would be a different situation. However, Poole J declined to determine this issue any further as in the present circumstances it would be an academic activity.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court found it would not be appropriate to investigate the merits of whether a national programme for vaccination of children (Covid-19 and winter flu) was in the best interests of children in general. It was about whether the best interests of the particular child were served by the vaccination. The Court should only consider expert evidence around the vaccines where there is new peer-reviewed research evidence focused on the safety or efficacy of the vaccine(s), or where there is a well-evidenced concern that the vaccine is contraindicated for that particular child. In most cases, therefore, expert evidence is not necessary or appropriate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court confirmed under s33(3)(b) Children Act 1989, where an LA has a care order (including an interim care order), they can arrange and consent to vaccination of a child in its care for the Covid-19 and winter flu vaccines despite the objections of the child’s parents. The basis for this was (i) the vaccination is part of an ongoing national programme; (ii) the child is Gillick competent and consents or is not Gillick competent; and (iii) they are satisfied it is necessary to safeguard or promote that individual child’s welfare. The Court reiterated there is no requirement for an application to be made for authorisation by the Court before vaccinating in those circumstances. Instead, a parent opposing vaccination would need to apply to prevent vaccination as per <em>Re H.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For completeness, it was recognised that s33(3) Children Act 1989 does not provide total freedom for an LA to arrange and consent to vaccinations in every case. LAs should not rely on s33(3)(b) to make grave decisions with profound or enduring consequences for that child. “Individualised” welfare decisions must be taken for each child, and it also cannot be discounted that there is a possibility an individual child’s circumstances may make such a decision “grave”. In the vast majority of cases, however, no application is necessary even with parental objection.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Commentary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>We now have a High Court authority specifically addressing the Covid-19 and winter flu vaccine programmes. Whilst the judgment essentially reiterates the law from the previous cases, the judgment is particularly welcome given the Court had previously chosen not to consider the Covid-19 vaccination scheme. Together, <em>Re C (Looked After Child) </em>and <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> confirm that the LA need not apply for a declaration that it is in a child’s best interests to have such vaccinations. Despite being a public law judgment, this case is also likely now to assist in private law disputes as it goes a step further than <em>M v H and PT</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the Court again confirmed that the LA need not in most cases apply for a declaration, (and reiterated that the onus is on the parent opposing vaccination to apply instead,) it is likely that LAs will continue to bring such applications. LAs remain cautious about their powers in the face of strong opposition, particularly with something as emotive as vaccination. It will be interesting to see whether any cases come before the Court following this decision where a child’s Gillick competence is to be assessed and potentially overridden.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Related Articles</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To read more about <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> [2020] EWCA Civ 664 and <em>M v H and PT</em> [2020] EWFC 93 please see the following articles also on the website.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/vaccinating-children-in-local-authority-care-re-h-a-child-parental-responsibility-vaccination-2020-ewca-civ-664/"><span style="text-decoration: underline;">Vaccinating Children in Local Authority Care: Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA </span></a><a href="https://www.parklaneplowden.co.uk/vaccinating-children-in-local-authority-care-re-h-a-child-parental-responsibility-vaccination-2020-ewca-civ-664/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Civ 664.</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/specific-issue-order-for-vaccination-including-covid-19-m-v-h-private-law-vaccination-2020-ewfc-93-15-december-2020/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Specific Issue Order for Vaccination-including COVID-19: M v H (Private Law Vaccination) [2020] EWFC 93 (15 December 2020)</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.bailii.org_ew_cases_EWHC_Fam_2021_2993.html&amp;d=DwMGaQ&amp;c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&amp;r=8uBzih0l3lFPvxkaiRwrCdYQtl_IWM7KgIilUB5S9L1VUq46hBNvUyJKhk2GW4mY&amp;m=NwxqdV-Cc6hi9J8tloJul8cWxFT61sqLI4VHA7-q7v4&amp;s=bUBGEHwcV8CN-UiIC0GPQgsFbvsxnrb_Fy8qMD72eK0&amp;e="><span style="text-decoration: underline;">C</span></a><a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.bailii.org_ew_cases_EWHC_Fam_2021_2993.html&amp;d=DwMGaQ&amp;c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&amp;r=8uBzih0l3lFPvxkaiRwrCdYQtl_IWM7KgIilUB5S9L1VUq46hBNvUyJKhk2GW4mY&amp;m=NwxqdV-Cc6hi9J8tloJul8cWxFT61sqLI4VHA7-q7v4&amp;s=bUBGEHwcV8CN-UiIC0GPQgsFbvsxnrb_Fy8qMD72eK0&amp;e=" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;"> (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) (09 November 2021) (bailii.org)</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Chloe Branton</span></a>, specialises in children law work, both public and private law. She undertakes both public and private law children work and is regularly instructed for Local Authorities, Children’s Guardians and parents. Chloe has a particular interest in cases involving: vaccination, FGM and forced marriage, and the removal of parental responsibility.</p> <!-- /wp:paragraph -->

Pension Loss &#8211; Withdrawal Factors

<!-- wp:paragraph --> <p>Parklane Plowden Chambers barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/gareth-price/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Gareth Price</span></a>, was called in 2009 and specialises in employment and clinical negligence. He authored the below article in regards to withdrawal factors in relation to pension loss.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pension loss claims of any complexity often fill employment lawyers with dread.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Other than short periods of lost employer pension contributions into a direct contribution pension, such claims can be time-intensive, difficult to analyse and costly to calculate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Delays in acquiring information from pension administrators, annual revaluation under CARE schemes, Ogden table calculations and the possible need for expert evidence are just some of the hurdles in presenting or defending such claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunals Principles for Compensating Pension Loss (‘the Principles’), now in its 4<sup>th</sup> edition (most recently revised as of 2021), provides a ‘how-to’ guide for undertaking calculations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For more straightforward cases, the Basic guide to Compensation for Pension Loss, exists.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With a cold towel and a cup of tea, the thicket of calculating a loss is more manageable than it may first appear.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But one aspect of such claims that attracts relatively little attention, and yet is the area where employment lawyers might be expected to add most value to a case, is what ‘withdrawal factors’ a Tribunal might apply to such a claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>What is a withdrawal factor?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A ‘withdrawal factor’ is a factor that provides for other contingencies that arise in the case, and which may affect how long employment would have continued but for the dismissal (i.e. whether the claimant would have ‘withdrawn’ from the pension scheme, for different reasons, at a future date).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is conceptually the same as the <em>Polkey</em> principle.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The purpose of this article is to explore this concept, consider its use in pension loss claims and look at some examples of its application.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Pension Loss claims concepts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To put matters in context, the following is important.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First</strong>, most employees will be members of occupational pension schemes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Those pension schemes are typically described as either direct contribution schemes or defined benefit schemes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Direct contributions</strong> schemes are ubiquitous in the private sector. Each pay period, the employee and employer contribute a portion of pay into the pension scheme. That money is invested and the pot at the end of the employee’s involvement in the scheme is the pension.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Defined benefit</strong> schemes come in different guises, but the most common are final salary or career average revalued earnings (CARE) schemes. They are more common in the public sector.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>VERY simplistically, final salary schemes calculate the pension by multiplying the employee’s salary in their final year of employment by a fraction that reflects their years of employment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Also very simplistically, CARE schemes add a fraction of an employee’s annual earnings (a ‘slice’) up over the course of their employment, with each slice being revalued for inflation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In each case, that pension is then an annual income for life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Second</strong>, when calculating pension loss claim, the Tribunal is guided by the Principles as to different methods of calculating pension loss claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For employees dismissed from positions benefiting from a direct contribution pension scheme, the ‘contributions method’ should be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For employees who had a defined benefit (‘DB’) pension scheme, their cases might be ‘Simple DB cases’ or ‘Complex DB cases’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For simple DB cases, the contributions method may be appropriate. For instance, if a Tribunal, applying <em>Polkey</em>, considers that the likelihood that the Claimant would have remained in employment until retirement (and therefore a member of the pension scheme at that point) is low, the Principles suggest that even where the employee was a member of a defined benefit scheme, the contributions method is a ‘better choice.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For Complex DB cases, the Principles suggest either using the ‘seven steps model’ (involving Ogden table calculations) or using expert evidence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under the seven steps model, the first step is to calculate the ‘multiplicand’. The multiplicand is the annual income amount that the Claimant would have received had they reached retirement whilst still an employee under the ‘old job’ and still a member of the DB scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Third</strong>, ‘complex’ cases include career loss cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A career loss case is one where the employee contends that, whatever their future career path, the loss of pension benefits from their old job occupational pension will never be replaced. Consequently, on retirement, the employee will (save for any mitigation by way of other pension schemes to which they become members) have a pension loss for life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whether an employee in fact will not be able to mitigate this loss is of course subject to Tribunal assessment of fact.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, it is these career loss cases which most commonly generate the need to engage in assessing whether any withdrawal factors should apply to the pension loss claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Where and how do withdrawal factors come in?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>After calculating the multiplicand, the Principles guide Tribunals to then:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘…<em>take account of any withdrawal factors that may apply. The analysis is like the one done when applying the ‘Polkey’ principle; the tribunal consider the ‘old job facts’ and engages in a degree of speculation about what the future may have held</em>.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Factors relevant to a <em>Polkey</em> reduction may also be relevant withdrawal factors.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Of course, Tribunals must avoid double-discounting (and, within the Principles, step seven explicitly considers this risk and how to avoid it), but the reality is that if a Tribunal considers that on a proper application of the <em>Polkey</em> principle any loss might be relatively short, further consideration of withdrawal factors is unlikely to be necessary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Should the Tribunal reach the stage of considering withdrawal factors however, the Tribunal must then engage in the sliding-doors world of what might have happened had the employee not been dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is not a binary, balance of probabilities assessment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is a future loss under <em>Mallet v. McMonagle</em> principles and is therefore the loss of a chance - what is the chance (or likelihood) that X may have happened?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once that assessment of chance has been made, the Tribunal must then endeavour to reduce the likelihood to a fixed percentage and apply that to the multiplicand.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>How does one assess the likelihood of a withdrawal factor?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This question is, really, the most difficult to advise clients on.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For instance, in any given case, what is the percentage reduction appropriate to reflect the likelihood that, for instance, the employer will become insolvent and be liquidated?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>That, of course, is entirely fact dependent and, ultimately, down to the Tribunal hearing the case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As employment lawyers, whilst we are tasked with analysing facts and applying the law to them in order to provide advice, the reality is that accurately predicting whether a Tribunal will consider there to be a 5% or 50% chance that an employer will become insolvent is – in all but the rarest of cases – very, very difficult.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Perhaps the only constant guiding principle (commonly reflected in <em>Polkey</em> assessments) is that the further away in time from assessment (i.e. the remedy hearing) the prediction is made, the less confident the Tribunal should be about any status quo remaining true or any change occurring.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal in <em>Griffin v. Plymouth Hospitals NHS Trust<sup>1</sup></em>, however, did make it clear that the higher the likelihood of the withdrawal factor occurring, the more likely it is that engaging in the process at all is wrong:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>The question is whether the uncertainties that would have to be reflected in such a discount are so great that they undermine the point of assessing the hypothetical whole-career loss in the first place</em>’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Further, remarking that ‘…<em>experience shows that in most cases the relevant uncertainties are indeed too great</em>’, demonstrates that it will be only rarely that a career long loss is best analysed in this way.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In such circumstances, the Tribunal might consider the contributions method more appropriate. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>What are typical examples of withdrawal factors?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The following are all factors that may be more or less relevant depending on the facts of the case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The common theme for all these factors is that they affect the likelihood of the employee being a member of the occupational DB scheme on retirement or affect their benefits under any such scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Remember, the question is ‘what is the chance that [the following] would have happened?’:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>The employer would have restructured, become insolvent or otherwise dismissed the employee for redundancy<ul><li>This might be in the context of, or reflect, wider economic factors, technological progress in the sector, the history of the business or the financial health of the business</li></ul></li><li>The employee would have left the role, resigned or taken early retirement<ul><li>This might be in the context, or reflect, prior length of employment, general employment history of the claimant, retention rates within the relevant industry, the particular role occupied and common career progression from that role, prospects of working in a different sector (including moving from public to private sector for enhanced salary), the relevant facts giving rise to the Tribunal litigation<sup>2</sup> in the first place and the employee’s health or that of their immediate family</li></ul></li><li>The employee would have been dismissed fairly<ul><li>This, of course, may be the approach taken by the Tribunal under a <em>Polkey</em> assessment. If not, then (for instance) relevant evidence about the employee’s health and likelihood of losing their employment for ill-health capability reasons might constitute a withdrawal factor</li></ul></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>It should also be added that, of course, evidence for the above will be needed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The nature of that evidence need not come solely from parties and witnesses. Subject to matters of proportionality, expert evidence on these factors may be appropriate. For instance, geographical factors, industry-specific matters not within the usual competency of a Tribunal or medical evidence about the long-term effects of a medical condition may all be appropriate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lastly, a more nuanced withdrawal factor might also be that the employee would have reduced their working hours or salary whilst nonetheless remaining within the pension scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Similarly, many people take sabbaticals, take career breaks or take secondments – but then later return to the employer and pension scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The likelihood of each of these factors might be informed by the employee’s home / family life, caring responsibilities, qualifications or desired career progression.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Such adjustments will likely have an impact on the employee’s pension benefits come retirement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moreover, such adjustments ‘bite’ at different stages of the employee’s career.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The nature and impact on pension benefits of these adjustment would be set out in the pension scheme terms and evidence from the pension scheme administrator may be necessary – rather than simply ascribing a percentage reduction to the multiplicand. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p>1- Albeit in the context of the pension guidance applicable at the time, from 2003, which recommended adopting either a ‘simplified’ or ‘substantial loss’ approach. This dichotomy was not retained in the 2017, 4<sup>th</sup> edition.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2- For which see Plaistow v. SoS for Justice, in which the claimant’s resilience to previous work incidents supported a finding that he would have remained in employment until retirement</p> <!-- /wp:paragraph --> <!-- wp:image {"width":300,"height":300,"sizeSlug":"large"} --> <figure class="wp-block-image size-large is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/09/gareth-price-34.jpg" alt="Gareth Price" width="300" height="300"/><figcaption><a href="https://www.parklaneplowden.co.uk/our-barristers/gareth-price/" rel="noreferrer noopener" target="_blank"><span style="text-decoration: underline;">Gareth Price</span></a>&nbsp;was called in 2009 and specialises in employment and clinical negligence.</figcaption></figure> <!-- /wp:image -->

Thorley v Sandwell &#038; West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB)

<!-- wp:paragraph --> <p>Pupil barrister Bharat Jangra examines the outcome of Thorley v Sandwell &amp; West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB) whereby the case was dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual Background</strong><br><br>The Claimant suffered a stroke as a result of his anti-coagulation medication (Warfarin) being stopped whilst undergoing an angiogram in April 2005. Mr Justice Soole’s judgment considered: breach of duty; the Wisniewski principles regarding adverse inferences; causation and material contribution.<br><br>The Claimant advanced two breach of duty arguments:<br><br>• Prior to the angiogram, the Claimant was told to not take any anti-coagulation medication for four days, contrary to the ‘guidance’ document; and<br>• Following the angiogram, the Claimant should have been advised to re-start his Warfarin on the evening of the angiogram.<br><br>The Defendant submitted that the guidance document was not strictly applicable to angiograms and so there was no breach of duty. In response to the second claim, the Defendant submitted that this course of action was not contrary to Bolam or Bolitho and that there was a reasonable body of competent practitioners who would have delayed re-starting Warfarin until the day after the procedure rather than the same day.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Breach of Duty, the Guidance Document, Wisniewski Principles and Adverse Inferences</strong><br><br>The guidance document was titled ‘Anticoagulation and Surgery (Sandwell)’ and had not initially been disclosed by the Defendant as it was their position that it was not directly applicable. The Defendant did not bring any factual evidence regarding this document, either from those who were responsible for drafting the document or from those who had clinical responsibility for Mr Thorley.<br><br>During the trial, the Claimant’s expert advanced the position that the guidance was applicable and should have been followed in this case reducing the period prior to the angiogram without anti-coagulation medication to three days rather than four. He also also accepted that it was only a guideline and could be departed from on clinical grounds [para. 46].<br><br>In contrast, the Defendant’s expert stated it was not applicable as angiography was not a surgical procedure and therefore not covered within the scope of the document. Further, as it was not a protocol or policy, and absence a protocol relating specifically to angiography, it was not reasonable to apply guidance relating to surgery to angiography [para. 43]. The Judge also accepted the position that in 2005 guidance documents were much less common.<br><br>To support their breach of duty arguments, the Claimant sought an adverse inference due to the failure by the Defendant to call any evidence regarding the document, in line with the principles from Wisniewski v Central Manchester Health Authority [1998] PIQR P324, being:<br><br>“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.<br><br>(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.<br><br>(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.<br><br>(4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”<br><br>Soole J did not seek to apply these rules strictly, in reliance on the Supreme Court judgment in the case of Efobi v. Royal Mail Group Ltd [2021] UKSC 33 where Lord Leggatt JSC (with whom the other JSC agreed) observed at [41]:<br><br>‘…Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so…'<br><br>Whilst this was an employment case, Soole J interpreted the above to have the widest possible application.<br><br>Soole J agreed with the Defendant expert’s interpretation regarding the guideline document, in that it did not apply to angiography and it was contrary to the ample material cited to the court advocating a four or five day period without anticoagulation medication. There were no adverse inferences to be drawn by the Court from the Defendant’s failure to call any factual evidence on this issue. Therefore, there was no breach of duty in failing to follow the guideline [paras. 57 - 67].<br><br>The Court went on to discuss that the expert evidence provided no basis to conclude that a three day period was better than a four or five day period of omission without Warfarin. Consequently, regardless of the guideline, there was no breach of duty in the treatment to Mr Thorley [paras. 75 – 77].<br><br>Regarding the second breach of duty claimed around the delay in resuming warfarin, Soole J did acknowledge and accept that some practitioners, with supporting independent publications, would have restarted Warfarin later on the day of the angiogram.<br><br>However, Soole J preferred the Defendant’s expert evidence, in that this position had to be read in the context of the assessment of the Claimant and risk of post-operative haemorrhage. There was a risk of bleeding following the angiogram, which may have been delayed or would not have been immediately apparent after the angiogram, especially considering that the Claimant was obese. The delay in resuming anti-coagulation medicine the day after the angiogram carried a risk, but provided extra safety to the Claimant should a late bleed have occurred [para. 79]. This approach was supported by a reasonable body of competent practitioners, including the Defendant expert himself. Therefore, there was no breach of duty in not resuming Warfarin in the evening on the day of the angiogram.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Causation and Material Contribution</strong><br><br>The Claimant’s causation case was brought on two grounds: ‘but for’ causation and material contribution.<br>Regarding ‘but for’ causation, Soole J found difficulty in accepting the Claimant’s expert evidence in relation to the applicability of the study he produced to the Claimant’s position, or the points raised regarding the relevance of the study relied on by the Defendant’s expert. Instead, he preferred the evidence of the Defendant’s expert and the way in which he extrapolated the evidence he brought and applied it to the Claimant’s condition. On that basis, he did not find that there was any ‘but for’ causation and that the Claimant would have suffered a stroke in any event.<br>Soole J undertook a comprehensive review of the case law regarding material contribution, and in agreement with the Court of Appeal in both Ministry of Defence v AB [2010] EWCA Civ 1317 and Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86, material contribution is not an issue that can be raised when there is one defendant and an indivisible injury.<br><br>The claim was therefore dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusions</strong><br><br>The Court will not restrict themselves to a formulaic test when considering the Wisniewski principles, and in line with Efobi it will take a holistic and common sense approach to the evidence. Further, material contribution cannot be raised as an issue where there is an indivisible injury and one defendant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Author</strong><br><br>Bharat Jangra is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers offer specialist pupillages based within either our Civil &amp; Employment teams, our Family Team or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Interested in applying for Pupillage at Parklane Plowden?</strong><br><br>If you are interested in applying for Pupillage at Parklane Plowden join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.<br><br>Please click <strong><em><a href="https://www.parklaneplowden.co.uk/future" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">here</span></a></em></strong> to read more.</p> <!-- /wp:paragraph -->

Campbell (By His Litigation Friend) v Advantage Insurance Company Limited

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Sophie Watson</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pupil barrister Sophie Watson examines the outcome of Campbell (by his litigation friend) v Advantage Insurance Company Limited whereby the Court of Appeal upholds that a Claimant cannot rely on his own intoxication when accepting a lift from a drunk driver to avoid a finding of contributory negligence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant and his friends had been drinking in a nightclub. The Claimant became very drunk and was assisted into the front passenger seat of his friend’s car where he fell asleep. After leaving the Claimant in the vehicle, the Claimant’s friends went back to the nightclub and continued drinking.&nbsp; When they returned to the car, it would not start and one of them went to borrow jump leads.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The other friend managed to start the vehicle and then began driving with the Claimant as a rear seat passenger, having moved position from the front passenger seat. A collision occurred with an oncoming lorry on the wrong side of the road.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s head collided with the driver’s seat, and he suffered a catastrophic brain injury. The driver was killed, and the other friend provided a witness statement, but killed himself prior to the trial.&nbsp; Therefore, there was limited evidence in respect of the events of the night.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First instance Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge made reference to the Mental Capacity Act (MCA) 2005 and stated that section 1(2) sets out ‘<em>a person must be assumed to have capacity unless it is established that he lacks capacity.’&nbsp;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge found that the Claimant must have been aware of what was happening when he moved from the front passenger seat to the rear seat. He concluded that given the Claimant’s size/height it would have been highly improbable that the driver moved the Claimant without the Claimant assisting. The Judge found this was consistent with the Claimant being aware that the driver was intoxicated and therefore, consenting to remaining in the car as it was driven away.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge applied an objective test of the ‘reasonable man’ when deciding whether, by virtue of being drunk, the Claimant was contributorily negligent. He made a finding of contributory negligence of 20% against the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Appeal Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant appealed this finding of contributory negligence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal identified 4 key issues:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Whether the Judge had wrongly applied the test of capacity under MCA 2005 and reversed the burden of proof for contributory negligence.</li><li>Whether the Judge’s findings were properly made.</li><li>Whether the Judge wrongly applied a test of the objective reasonable, competent and prudent passenger; and</li><li>Whether the judge’s assessment of 20% reduction in damages should be reduced.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Firstly, in respect of capacity, the Court of Appeal considered that the Judge at First Instance had correctly applied the test under MCA 2005. It was held that the Judge did not reverse the burden of proof.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Secondly, the Court of Appeal found there was no evidence that any justiciable errors were made that would entitle interference with the findings of fact. The Court of Appeal was satisfied that, on the basis of the limited evidence, the Judge had made proper findings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main issue determined was the application of the objective test.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s Counsel had made reference to a number of Australian authorities. In <em>McPherson v Whitfield </em>[1996] 1 Qd. 474it was concluded that where the Claimant was lacking relevant conscious awareness, the Claimant should not be held responsible for failing to take reasonable care of his own safety. The Court of Appeal rejected this approach.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal considered the case of <em>Owen v Brimell </em>[1977] QB 859which sets out twoscenarios in which contributory negligence could be found, namely: if the passenger accepted the lift knowing the driver was intoxicated or the passenger had known that he would be given a lift and then drunk to excess so that he could not make an assessment of the driver’s ability to drive<em>. </em>The Court of Appeal acknowledged that there were only two situations identified but found that this did not restrict contributory negligence to only these distinct situations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In dismissing the appeal, the Court of Appeal found that the Judge at First Instance had rightly concluded that the Claimant should be assessed to the standards of a reasonable, prudent and competent adult.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is notable that in agreement, Lord Justice Underhill considered an example of a person who was unconscious would be in a state where they were incapable of making a decision and could not consent. Therefore, in this scenario they would not be contributorily negligent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case re-affirms the objective test to be applied. It is clear that the question of voluntary and involuntary conduct will turn on the facts and the assessment of the evidence by the trial judge.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Sophie Watson</span></a> is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers offer specialist pupillages based within either our Civil &amp; Employment teams, our Family Team or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If you are interested in applying for Pupillage at Parklane Plowden join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Please click <span style="text-decoration: underline;"><a href="https://www.parklaneplowden.co.uk/future" target="_blank" rel="noreferrer noopener">here</a></span> to read more.</p> <!-- /wp:paragraph -->

Worker status and the obligation of personal performance 🗓

<!-- wp:paragraph --> <p><strong><em>In this article, Parklane Plowden Barrister, Roger Quickfall, considers the approach to determining when a limited right of substitution is consistent with the obligation of personal performance following the recent guidance of the Court of Appeal in </em>Stuart Delivery v Augustine<em>.</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Introduction</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 19/10/21, the Court of Appeal (“CA”) delivered its latest decision on worker status: <em>Stuart Delivery Ltd v Augustine</em> [2021] EWCA Civ 1514 (“<em>Augustine</em>”).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On this occasion, the CA was dealing with the obligation of personal performance when there is a fettered right of substitution.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The issue on appeal was whether an employment tribunal (“ET”) was entitled to find that a self-employed courier (“C”) delivering goods by moped for Stuart Delivery Ltd (“R”) was a ‘worker’ for the purposes of s. 230(3)(b) of the Employment Rights Act 1996 (“ERA”).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The facts</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>R had developed a technology platform connecting couriers with retailers via an app.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers who entered into arrangements with R could accept individual delivery jobs and be paid a fixed fee for that job by reference to the distance travelled and the mode of transport.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers could also sign up for one or more time slots via the app.&nbsp; The slots covered the zones with the highest concentration of users at the times of projected highest demand.&nbsp; Couriers were encouraged to sign up for these slots and 93% of couriers worked on these slots.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once signed up for a slot, couriers committed to be in a particular zone for 90% of the time of the slot, not logging off for more than 6 minutes per slot and not refusing more than one delivery job during a slot.&nbsp; If they satisfied these requirements, they were guaranteed a minimum £9 an hour for each slot (regardless of whether they undertook any deliveries).&nbsp; If they did not satisfy these requirements, they would not receive the minimum payment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers were also paid delivery rewards if they achieved a certain number of deliveries in a week, but they would not qualify for the reward if they failed to take up two or more slots in a week.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was no written substitution clause.&nbsp; However, if a courier did not wish to work a slot he had accepted, he could notify other couriers on R’s app who could opt, if they chose, to fill the unwanted slot.&nbsp; C did not know which courier would be taking up the slot and he could not put forward any given individual.&nbsp; If one of the couriers did not take up the slot, C would have to do it or face penalties for missing the slot.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The right of substitution was conditional upon another courier on R’s app agreeing to take up C’s slot.&nbsp; The other courier had to have the same mode of transport and was subject to the same requirements as C of having to stay in the area for 90% of the time, not logging off for more than 6 minutes per slot and not refusing more than one delivery job per slot, to avoid losing the guaranteed payment and suffering the other consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA agreed with the ET and the EAT that this was not a sufficient right of substitution to remove the obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The law</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As employment lawyers are aware, the definition of a worker in s. 230(3)(b) ERA provides, <em>inter alia</em>, that the individual “<strong><em>undertakes to do or perform personally any work or services for another party to the contract …</em></strong>”.&nbsp; This is known as the obligation of personal performance.&nbsp; Anyone seeking to establish themselves as a worker must establish that they are subject to the obligation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If the individual must perform the work themselves, there is no difficulty: there is an obligation of personal performance.&nbsp; If the individual can send whoever they wish to carry out their work, i.e. the right of substitution is unfettered, there is also no difficulty: there is no obligation of personal performance.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The difficulty arises where the right of substitution is fettered or conditional, i.e. limited or occasional.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Whether a conditional right of substitution is consistent with personal performance&nbsp;</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As was held by the CA in <em>Pimlico Plumbers v Smith</em> [2017] EWCA Civ 51, [2017] ICR 657 (“<em>Pimlico Plumbers</em>”) (§84), whether a conditional right of substitution is consistent with personal performance depends on the conditionality; in particular, the nature and degree of any fetter on the right of substitution.&nbsp; In other words: the extent to which the right is limited or occasional.&nbsp; In the same paragraph, the CA gave three examples:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><em>a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. </em><em></em></li><li><em>a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. </em><em></em></li><li><em>a right to substitute only with the consent of [the employer] who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.</em><em></em></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>On appeal in <em>Augustine</em>, R argued that the ET wrongly found that C’s right of substitution was consistent with (iii) above when it should have found that it was consistent with (ii).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The above examples were stated by the Master of the Rolls and approved of by the Supreme Court.&nbsp; There has therefore been a tendency for practitioners to regard them as categories into which the facts of a case can be shoehorned to determine whether there is an obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the CA in <em>Augustine</em>, held that this was the wrong approach because it was unreal to attempt to shoehorn the facts of a case into one of the examples to see whether a right of substitution was consistent with the obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA held that, to treat the examples as categories, addresses the wrong issue.&nbsp; The issue is not whether the case can be fitted into one of the examples; it is whether there is an obligation of personal performance (§38).&nbsp; Where the right of substitution is conditional, the issue is whether the nature and degree of any fetter on the right or ability to appoint a substitute is inconsistent with any obligation of personal performance (§55).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>An important factor is the dominant purpose of the work arrangement when there is a limited right of substitution.&nbsp; Is the employer only concerned that the work is done and uninterested in who does it? Or do they want the individual they have contracted to do it?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As the SC explained in <em>Pimlico Plumbers</em> <em>v Smith</em> [2018] UKSC 29, [2018] ICR 1511, at §32, where there is a right of substitution, it may be helpful to assess its significance by reference to whether the dominant feature of the contract remains personal performance on the part of the person contracted to carry out the work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Pimlico Plumbers</em> the SC proceeded on the basis (without deciding) that the claimant had the right to appoint another Pimlico plumber to do particular work where the claimant had subsequently been offered a more lucrative job.&nbsp; The SC held that this was a significant limitation on the right of substitution and was the converse of the situation in which the employer was uninterested in the identity of the substitute, provided only that the work was done.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Augustine</em>, the system set up by R was intended to ensure that C carried out the work and, in particular, that he turned up for the slots for which he had signed up and did the delivery work during those slots.&nbsp; That was necessary for R’s business model.&nbsp; The limited right or ability to notify other couriers via the app that he wished to release his slot for take up by others was insufficient to remove from him the obligation of personal performance.&nbsp; This was not a situation in which R was uninterested in who performed the work.&nbsp; R wanted to ensure that the courier who took the slot was subject to the same constraints as C to ensure that there were sufficiently reliable couriers available in hot zones at peak times.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA observed that there is no rule that a right or ability to substitute only from R’s pool of operatives is necessarily consistent with personal performance.&nbsp; But the CA acknowledged that the courts have recognised that this is a conclusion that employment tribunals can reasonably reach in broadly similar circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, the CA observed that, in considering whether there is an obligation of personal performance, it may not be necessary to determine whether the substitution arrangements are contractual or merely a practice permitted by R.&nbsp; It was observed that, following <em>Uber v Aslam</em> [2021] UKSC 5, [2021] ICR 657 (“<em>Uber</em>”), the question may be whether, looking at the contractual terms and the way the arrangements operated in practice, there was an obligation of personal performance given the extent and nature of any practice permitting substitution.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Uber</em> it was held that the contract is not the starting point in determining employment / worker status because employment rights are not contractual but statutory.&nbsp; Whether an individual has statutory rights is therefore a matter of ‘statutory’ rather than ‘contractual’ interpretation.&nbsp; It is therefore necessary to have the purpose of the relevant statutory provisions in mind, i.e. the protection of the vulnerable / those in a position of dependency on the employer, when determining whether an individual has particular statutory rights.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Conclusions</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When considering whether an individual is a ‘worker’ where there is a limited ability to appoint a substitute, the issue is whether the nature and degree of any limit is consistent with any obligation of personal performance.&nbsp;&nbsp; In addressing this issue, it is necessary to consider the extent to which the employer is interested in who carries out the work.&nbsp; Trying to shoehorn the facts into one of the so-called <em>Pimlico</em> examples will not be conclusive.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Roger Quickfall</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Barrister at Parklane Plowden</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>November 2021</p> <!-- /wp:paragraph -->

Remote hearings and the future of the Financial Remedy Court: What we learned from the Farquhar report &#8211; Parts 1 and 2

<!-- wp:image {"id":3890,"width":222,"height":265,"sizeSlug":"full","linkDestination":"none"} --> <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/11/giorgia-sessi-pupil-21-1.jpg" alt="Barrister Giorgia Sessi" class="wp-image-3890" width="222" height="265"/><figcaption> Written by Barrister; <a href="https://plp.m12development.com/our-barristers/giorgia-sessi/">Giorgia Sessi</a>. </figcaption></figure> <!-- /wp:image --> <!-- wp:paragraph --> <p>T<strong>he Farquhar report, authored by His Honour Judge Stuart Farquhar, was commissioned by Mostyn J (the National Lead of the Financial Remedies Court) to consider the future of the FRC and the role that remote hearings should play.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The findings of the report were based on a nation-wide survey conducted amongst judges and practitioners and on the observations of a working group formed of judges (full time and part time), solicitors and barristers with a broad experience in financial remedy cases, from low to high value assets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report was published on 22 October 2021 and is formed of two parts, which are summarised below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Part 1: remote hearings are here to stay</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report concludes that remote hearings should continue. 14 months into the ‘new normal’ (this part of the report was finalised in May 2021), it is clear that remote hearings bring advantages and disadvantages with them. Amongst the advantages are higher levels of efficiency, ability of judges to work nationally, conflict reduction, improved access for litigants and representatives. The disadvantages merely centre around the solemnity and formality of the process being somewhat undermined, technical difficulties, higher level of tiredness and the ‘loss’ of lay clients who do not have their advocate physically present. Interestingly in respect of final hearings, lawyers indicated that cross-examination can be as effective as in person, whereas judges observed that it is more difficult to assess credibility remotely and that they would benefit from seeing and hearing a party and/or witnesses in person. However, the consensus in respect of expert witnesses is that there is no reason why their evidence cannot continue to be heard remotely. In respect of FDRs, should the parties opt for a remote listing, such listing should be in the morning with an afternoon slot to enable advocates to update the court on progress.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report observes that hearings where no evidence is heard should continue as remote, with the exception of FDRs (although the lawyers involved survey indicated more cases are settling at remote FDRs), enforcement hearings where the liberty of the individual is at risk and appeals.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In terms of platforms, MS Teams was chosen as the preferred remote hearing platform due to its reliability and simple interface, followed by Zoom (mostly supported by lawyers) and CVP (preferred by judges), with BT Meetme faring last.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report also deals with the use of private FDRs, with the majority of respondents reporting a higher settlement rate, but this is regardless of whether the private FDR takes place remotely or in person.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Areas of improvements for remote working were identified as follows:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Technology: CVP to enable breakout rooms or other platforms such as Zoom to be implemented nationally. Dedicated, trained court staff to operate the equipment.</li><li>E-bundles to be fully searchable, bookmarked, PD and e-bundles protocol compliant. Separate disclosure bundle only with permission. A common platform to share bundles should be considered. Sanctions for failure to comply.</li><li>Pre-hearing: advocates’ meetings to narrow issues; include time for judicial reading; better system to ensure judges receive documents on time.</li><li>Hearing: Coat of arms background for judges; regular breaks to acknowledge the tiresome nature of remote working; time limits imposed to lodge orders; listing future hearings there and then.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Part 1 of the Farquhar report is available </em><a href="https://www.judiciary.uk/wp-content/uploads/2021/10/Report-of-the-Farquhar-Committee-Part-1-FRC-Remote-Hearings-May-2021.pdf"><em>here</em></a><em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Part 2: a more efficient system of dealing with low value cases</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The most interesting aspect of the Part 2 is the suggestion of a ‘fast-track procedure’, where low value cases (under £250,000 net assets) can be finalised within 6 months of filing the Form A. If the pilot scheme is successful, there is potential to increase the threshold to £500,000.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The pre-Covid statistics are eyewatering, with the average length of proceedings to FDR being 55 weeks and 84 weeks to final hearing. The fast-track procedure is aimed at improving the level of emotional distress on the parties and children of the family, which practitioners are all too familiar with, and enabling court resources to be freed up for the most complex cases. This procedure involves a fast-paced approach, which will require strict adherence from lay parties and professionals.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main features of the fast-track procedure are as follows:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Forms E, house valuations, mortgage capacities, questionnaires and replies all being available prior to the FDA.</li><li>Forms E to be exchanged within 4 weeks of issue.</li><li>Questionnaires to be exchanged 14 days after receipt of Forms E, with replies being due within 4 weeks of receipt.</li><li>Experts: Parties to agree on house valuations and CGT within 7 days of exchanging Forms E; with LOIs to be agreed within 2 weeks if no agreement is reached. Experts to be directed to provide a report within 4 weeks.</li><li>Preliminary documents to be filed 7 days before the first hearing.</li><li>The first hearing to be listed within 16 weeks of issue.</li><li>Offers to be made in advance of the FDA so that the hearing can be treated as an FDR.</li><li>The final hearing to be listed within 26 weeks from the issue of the Form A.</li><li>Final hearings to be listed for one day.</li><li>Parties to have an option to transfer to the ‘standard’ procedure in case of complexities.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The data collected within the report appears to suggest that just under half of the work carried out within the FRC involves cases under £500,000; therefore, this new procedure would have a significant impact on the volume of cases going through the FRC. The report concludes that this scheme should be piloted in no more than three separate FRC zones for a period of 12 months, with data being collected for evaluation prior to any wider rollout.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report also sought to address wider issues within the practices and procedures of the FRC and identified the following areas of improvement:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Judicial continuity: any interlocutory application (and particularly enforcement) to be made to the allocated judge unless impracticable.</li><li>Listing: no block listing for FR cases; ‘not before’ slot most appropriate; parties’ availability to be provided and listing to be arranged on the day of the hearing. FDAs to be listed for 1 hour; FDRs for 1.5 hours not in the afternoon (parties and advocates to be available for the whole day).</li><li>Staffing: a designated, trained member of staff to be responsible for each FRC hearing.</li><li>Litigants in person: a user friendly set of guidelines on the FRC process to be sent to unrepresented parties at the time of issue of Form A.</li><li>Forms E to be amended to include:<ul><li>Date of cohabitation</li><li>Mortgage capacity</li><li>Housing needs</li><li>What kind of settlement is considered fair instead of ‘order sought’</li></ul></li><li>FMH valuation: value of FMH to be agreed within 7 days of exchange of Form E; valuation / appraisal in default of agreement prior to FDA.</li><li>FDA documents:<ul><li>No statement of issues</li><li>Joint schedule of assets with differences highlighted</li><li>Chronology with differences highlighted</li><li>Joint case summary</li></ul></li><li>Skeleton arguments: to be significantly reduced in length, i.e. 5 pages for FDA to a maximum of 15 pages for the final hearing.</li><li>Advocates’ meeting: to be held 3 days before each hearing to narrow issues.</li><li>ADR: to be strongly encouraged, including use of private FDRs.</li><li>Draft orders: to be lodged prior to the hearing with areas of disagreements clearly marked. Final draft to be completed on the day of the hearing.</li><li>Asset schedules: to be provided in A4 (not A3) format and excel.</li><li>S25 statements: to be limited to 10-15 pages and contain evidence only, not ‘argument or rhetoric’.</li><li>Consent orders: to be sent in word version, with a proposed new statement of information which provides more clarity as to capital and income resources and the net effect.</li><li>Appeals: Lead FRC judges (if CJ) to be allowed to certify where an appeal is ‘totally without merit’. This is in light of the many groundless appeals made within the FRC.</li><li>Costs: parties to be clearly reminded of the cost consequences of breaches and failure to negotiate reasonably; Forms H to be included in the bundle.</li><li>Communication: documents to be sent to judges directly as well as the court.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Part 2 of the Farquhar report is available <a href="https://www.judiciary.uk/wp-content/uploads/2021/10/Report-of-the-Farquhar-Committee-Part-2-The-Financial-Remedies-Court-The-Way-Forward-September-2021.pdf" target="_blank" rel="noreferrer noopener">here</a>.</em></p> <!-- /wp:paragraph -->

Litigating with Litigants in person: Useful pointers on balancing duties

<!-- wp:paragraph --> <p><strong>Nicola Twine is a specialist Personal Injury, Clinical Negligence, and Employment barrister with over 20 years’ experience. In the article below Nicola outlines useful pointers on balancing duties when litigating with Ligitants in person.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>1.</strong> The growth in the number of litigants in person (LiPs) in the Employment Tribunal has been keenly apparent over the last 18 months, when dealing with cases remotely as a consequence of Covid19. <a href="#_ftn1">[1]</a> Whilst as lawyers we have had to familiarise ourselves with navigating electronic bundles and technology for remote hearings we have navigated through otherwise familiar territory.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>2.</strong> The LiP has had the unfamiliar through which they have to find their way expanded. The day in court that many LiPs have hoped for has not arrived but has been a day, or days, behind a screen. It is likely this will continue, certainly for some types of hearings, going forward.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>3.</strong> As a result, it is helpful to take some time and reflect on how as lawyers we should conduct cases when responding to claims against LiPs. It is important to understand the extent and limit of duties in the tribunal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Legal duties</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>4.</strong> We have a duty to our clients, to the court, and the administration of justice, as set out in The Legal Services Act 2007 at s1(3) which provides that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>c) …authorised persons should act in the best interests of their client.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>d) …persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independent in the interests of justice.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>5.</strong> It is the duty to the court which is paramount. This is reflected in the regulatory framework for both sides of the profession. The Barristers Code of Conduct states clearly at gC1 that the duty to the court in the administration of justice overrides any other core duty<a href="#_ftn2">[2]</a>, if and to the extent that the two are inconsistent. The Solicitors Regulation Authority Handbook contains provisions with similar effect.<a href="#_ftn3">[3]</a> Most significantly, chapter 11 provides that a solicitor must ensure that unfair advantage is not taken of an opposing party’s lack of knowledge where they are a LiP.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>6. </strong>The duty may conceivably operate to potential disadvantage of a client, by obligating submission of authorities that are unhelpful to a case. At gC5 the BSB Handbook makes specific reference to this highlighting that it is particularly important when acting against LiPs to draw to the attention of the court any decision or provision which may be adverse to a client. This is to prevent unfair advantage and to ensure that both parties are on ‘an equal footing’ in accordance with the overriding objective.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Guidance for lawyers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>7.</strong> In 2015 the Law Society, the Bar Council and CILEx jointly prepared guidelines for lawyers facing litigants in person in the courts.<a href="#_ftn4">[4]</a> Despite the age of the guidelines, and the fact they have not been updated to address remote hearings, they remain a good reference setting out good practice. It is recommended they are read in conjunction with the section on litigants in person within the Judicial College Equal Treatment Bench Book (ETBB) <a href="#_ftn5">[5]</a>, which book all Judges must have regard to<a href="#_ftn6">[6]</a>. Chapter 1 of the 2021 edition concerns litigants in person and lay representatives.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>8. </strong>Dealing with litigants in person can be at times frustrating and time-consuming. It is not uncommon to be presented with pleadings that appear as ramblings, where the claims have to be identified, and witness statements that deal with each and every event that occurred in the workplace for a period spanning years. Nor is it uncommon to have litigants in person who are angry and frustrated holding unrealistic expectations as they are so involved in their own case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>9. </strong>The ETBB reminds us that the flagged difficulties faced by LiPs generally stem from lack of knowledge and that LiPs tend to:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a. Be unfamiliar with the language and vocabulary of proceedings;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> b. Have little knowledge of proceedings;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> c. Be ill informed about ways of presenting evidence;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> d. Be unskilled in advocacy;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> e. Be unable to understand the relevance of the law and regulations in relation to their own problem;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> f. Be unable to understand the concept of a cause of action;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> g. Lack objectivity and emotional distance from their case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>10.</strong> We can add to the list that LiPs tend to be unfamiliar with, and nervous about, the use of technology for conducting proceedings. They are less likely to have the required technology than a lawyer and may not be able to comfortably operate it to conduct a hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Practical pointers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Communication</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>11.</strong> Ensure both in and outside of the tribunal that you are clear in communications, as well as courteous and co-operative. Legal jargon is to be avoided where possible. Any written documents such as applications, skeleton arguments, and submissions should be comprehensive to the lay person and sent in advance of a hearing, again where possible.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>12.</strong> If circumstances permit, notice should be given of any applications to minimise objection from a LiP and the potential need for adjournments to proceedings, which may result in adverse costs orders.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>13.</strong> In any hearing, when interjecting it is helpful to explain why, recognising that the LiP may not know what has caused interruption to their submissions or questioning and the importance of their being able to follow and participate in proceedings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Preparation</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>14. </strong>The tribunal will generally expect the represented party to take responsibility for preparation of bundles, provision of copies, and to draw up any orders. This should be anticipated. Time should generally be allowed for agreeing the content of trial bundles recognising the LiPs do not always understand what renders a document relevant, so start preparation early.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>15. </strong>Where authorities are to be relied on those should be provided to the LiP ahead of a hearing. Furthermore, it is helpful if specific passages to be relied on are marked for the LiP, as the EAT requires on any appeal.<a href="#_ftn7">[7]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Assistance</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>16. </strong>There should be preparedness to assist LiPs at hearings when identifying claims and issues.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>17. </strong>In Cox v Adecco &amp; Ors UKEAT/0339/19/AT, an appeal against an order striking out a claim made at a preliminary hearing, it was stressed that before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, and issues in the claim. Moreover, with LiPs this involves more than requiring a preliminary hearing to say what the claims and issues are but requires reading the pleadings and core documents that set out the claimant’s case. Amongst a number of general propositions advanced it was stressed<a href="#_ftn8">[8]</a> that respondents, particularly if legal represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not take procedural advantage of LiPs, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner expected of a lawyer or the wrong label is applied.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>18.</strong> It is to be recognised that the tribunal has a duty to make procedural allowances to a LiPs difficulties and vulnerabilities and to demonstrate sensitivity. This may dictate how proceedings are conducted.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Reflection</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>19.</strong> Sensitivity has to be demonstrated to a LiPs’ difficulties. Time should be taken in each case to determine what these might be and what practical steps might be taken, in the interests of the court and the client, to assist the smoother running of a hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>20.</strong> Practically, if it is believed that a LiP is vulnerable and that there needs in terms of participating in proceedings have not been recognised this should be brought to the attention of the tribunal.<a href="#_ftn9">[9]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>21.</strong> In April 2020 the Employment Tribunal issued presidential guidance on vulnerable parties and witnesses<a href="#_ftn10">[10]</a>, which stresses the importance of active case management, adjustments for vulnerability, and addresses vulnerability in the context of capacity to litigate. Lawyers are advised to familiarise themselves with this guidance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>22.</strong> Guidance on the appropriate course of action where a representative forms a view an unrepresented claimant might lack capacity to conduct litigation was given in Jhuti v Royal Mail Group Ltd UKEAT/0061/17. Whilst both the presidential guidance and that in Jhuti leave many questions unanswered, such as how to investigate capacity where the evidence is not clear, both stress the importance of raising capacity early if it is a potential issue. This is despite there being no bar to a party without capacity conducting litigation in the Employment Tribunal, unlike in other jurisdictions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>23.</strong> Procedurally, regard has to be had to difficulties there may be with compliance. As was recognised in Cox, when dealing with LiPs requests for additional information should be as limited and clearly focussed as possible. Repeatedly asking for additional information and particularisation rarely assists as LiP to clarify the claim<a href="#_ftn11">[11]</a>. More often assistance is required.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Compliance</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>24. </strong>Lawyers must ensure that they comply with rules and practice directions and be aware that a failure to do so, when there is a LiP in particular, may lead to adverse consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>25.</strong> Where there has been non-compliance by with practice directions and court orders by a LiP the tribunal will be keen to ascertain why. In reality some degree of assistance and leniency is often given due to the difficulties faced by LiP but in many cases there comes a time when a court will impose a sanction, particularly where an infarction has implications for the litigation process and represented party.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Costs</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>26. </strong>Represented parties are advised to carefully consider whether to apply for costs against a LiP in any given case, even where there is finding of some unreasonable behaviour or consideration that a claim had limited or no prospects. The gravity and effect of any unreasonable conduct or failure, as well as means to pay are relevant factors for consideration.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>27. </strong>Whilst the threshold tests are the same whether a party is represented or not the application of those tests is to take account as to whether a party is professionally represented or not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>28.</strong> The EAT in AQ Ltd v Holden [2012] IRLR 648<a href="#_ftn12">[12]</a> observed that a tribunal cannot and should not judge a LiP by the same standards as a professional representative. It was held that: whilst the law is the same, the application of that law and the courts exercise of discretion, must take into account whether a litigant is professionally represented; a tribunal cannot and should not judge a LiP by the standards of a professional representative as justice requires professional standards are not applied; and that even if the threshold tests are met the tribunal has discretion whether to make an order having regard to all the circumstances. This has since been followed with approval in Vaughan v London Borough of Lewisham UKEAT/0534/12/SM.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>29.</strong> In Oni v Unison UKEAT/0370/14/LA the importance of considering means was stressed once there has been a finding of unreasonable conduct. The tribunal had there erred in assuming that once unreasonable conduct was established a costs order should follow. The means of a paying party are to be considered twice. Firstly, in considering whether to make an award of costs; secondly, if an award is to be made in deciding how much.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>30. </strong>The unreasonable behaviour on the part of the LiP has likely to be significant to result in a costs order. This was the case in Liddington v 2gether NHS Foundation Trust UKEAT/0002/16. In that case three Employment Judges had told the claimant that her claims were not adequately particularised. In considering costs the Judge accepted that the claimant was a litigant in person and so (in accordance AQ Ltd v Holden) should not be  held to the standards of a lawyer but her continued ability to provide particulars amounted to unreasonable conduct justifying costs against her. The Judge did consider whether there was vulnerability by reason of stress, anxiety or illness, that affected the failure to particularise and decided it was not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Conclusion</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>31.</strong> An understanding of the party as well as the claim is the key to conducting a case against a LiP. This is to minimise the risk of any appeal, avoid unnecessary adjournments, assist the smooth running of the claim, and to ensure that competing duties are discharged.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><br>Nicola Twine</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden<br><br><br></p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1">[1]</a> The five yearly <a href="https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-2018">https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-2018</a> survey conducted in 2018 found 46% of Claimants used a lawyer for some or all of the proceedings whereas 77% of employers had representation. It is the number of unrepresented Claimants that is believed to have increased markedly.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2">[2]</a><a href="https://www.barstandardsboard.org.uk/for-barristers/compliance-with-your-obligations/the-core-duties.html">https://www.barstandardsboard.org.uk/for-barristers/compliance-with-your-obligations/the-core-duties.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3">[3]</a> Chapters 5 and 11.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4">[4]</a> Accessible via <a href="https://www.lawsociety.org.uk/en/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers">https://www.lawsociety.org.uk/en/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5">[5]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf">https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6">[6]</a> This is regularly updated and its relevance and importance in Employment Tribunal proceedings has been recognised judicially.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7">[7]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2020/06/Practice-Direction-2018-19-09-19_.pdf">https://www.judiciary.uk/wp-content/uploads/2020/06/Practice-Direction-2018-19-09-19_.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8">[8]</a> Paragrpahs 28 to 31.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref9">[9]</a> As considered in Higgins v Home Office [2015] UKEAT/02961/14/LA and East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref10">[10]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref11">[11]</a> Paragraph 32.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref12">[12]</a> In which the writer represented the employer.</p> <!-- /wp:paragraph -->