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Rajni Virk, Robert Allen and Oliver Bailey accept Tenancy

<!-- wp:paragraph --> <p>We are delighted to announce our offer of tenancy has been accepted by Robert Allen, Rajni Virk and Oliver Bailey after successfully completing their respective pupillages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/rajni-virk/">Ranji Virk </a>commenced her family pupillage in October 2022 under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/louise-mccallum/">Louise McCallum</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-nelson/">Julia Nelson</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> commenced his specialist civil pupillage in October 2022 under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a>, <a href="https://www.parklaneplowden.co.uk/our-barristers/jim-hester/">Jim Hester</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/michael-james/">Michael James</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/oliver-bailey/">Oliver Bailey</a> commenced his specialist civil pupillage in October 2022 under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/hylton-armstrong/">Hylton Armstrong</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/">Bronia Hartley</a>.</p> <!-- /wp:paragraph -->

SEA CHANGE: bon voyage to many PI and fatal claims in the Admiralty Court

<!-- wp:paragraph --> <p>The knotty matter of having to issue personal injury and fatal accident claims occurring on ships in the Admiralty Division of the High Court is soon to addressed by amendments to the Civil Procedure Rules which will be launched on 6 April 2023.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>CPR 61 governs claims to be issued in the Admiralty Court.&nbsp; The present r.61.2 (1) (a) (v)<a href="#_ftn1" id="_ftnref1">[1]</a> states:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The following claims must be started in the Admiralty Court –</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) a claim –</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(v) for loss of life or personal injury specified in section 20(2)(f) of the Senior Courts Act 1981.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Where s.20 (2) (f) of the Senior Courts Act 1981 provides:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in the consequence of the wrongful act, neglect or default of:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>i. the owners, charterers or persons in possession or control of a ship; or</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>ii. the master or crew of the ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In essence, it means any accident on a ship is likely to fall within CPR 61.&nbsp; And that has long given rise to headaches.&nbsp; Claimants mistakenly issue in the County Court, are forced to transfer their claim over to the Admiralty Court, only for the Admiralty Court to transfer it right back to whence it started.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In response to this unwarranted complexity, the Civil Procedure Rule Committee have decided it is time to rock the boat.&nbsp; From 6 April 2023, r.61.2 (1) (a) (v) is to be overhauled, replaced by r.61.2 (2):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘Any other admiralty claim may be started in the Admiralty Court and a claim for loss of life or personal injury specified in Section 20(2)(f) of the Senior Courts Act 1981 should be started in the Admiralty Court in the circumstances set out in Practice Direction 61’.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The updated Practice Direction 61 will stipulate, as at paragraph 2.8:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘[Personal injury and fatal accident] Claims [falling within s.20 (2) (f) of the Senior Courts Act 1981] should not be commenced in the Admiralty Court unless they require or would benefit from the specialist knowledge and experience of that court. That is likely to include personal injury claims which:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) involve questions of navigation, seamanship, boat or ship-handling skills and/or acts or omissions relating to sea state;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) arise out of the shipwreck, capsizing or stranding of the ship, or explosion or fire in the ship;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(c) are employer’s liability claims relating to or concerning equipment or working practices peculiar to a ship;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(d) raise difficult or novel questions of private international law or of the interpretation of the Athens Convention.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>So, the sea of claims arising out of slips and trips on ships will, by and large, no longer sink or swim under the watch of Admiralty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This means plain sailing for claimants who would previously have been caught out in the choppy waters of issuance.&nbsp; And in the wake of this amendment, it means many such claims will be subject to the fast-track fixed costs regime under CPR 45.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Robert Allen is a pupil in Chambers currently under the supervision of Jim Hester.&nbsp; He will be accepting instructions in second six from 3 April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> White Book 2022 Edition, Volume 2, page 669</p> <!-- /wp:paragraph -->

WHIPLASH (AND MORE): Taking stock of the Court of Appeal’s decision in Hassam &#038; Anor. v. Rabot &#038; Anor. [2023] EWCA Civ 19

<!-- wp:paragraph --> <p><em>The Court of Appeal’s much anticipated judgment in <u>Charlotte Victoria Hassam &amp; Anor. v. Yoann Samuel Rabot &amp; Anor</u>.<a href="#_ftn1" id="_ftnref1"><strong>[1]</strong></a> was handed down on Friday 20 January 2023.&nbsp; The Court set out guidelines as to how to deal with concurrence of tariff and non-tariff injuries.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Two cases were heard together on appeal: <em><u>Rabot v. Hassam</u></em> and <em><u>Briggs v. Laditan</u></em>.&nbsp; Both arose out of road traffic accidents.&nbsp; Both concerned the claimant having suffered whiplash and non-whiplash injuries.<a href="#_ftn2" id="_ftnref2">[2]</a>&nbsp; Whiplash injuries<a href="#_ftn3" id="_ftnref3">[3]</a> now attract a tariff award, pursuant to the Whiplash Injury Regulations 2021 as enacted by the Civil Liability Act 2018.<a href="#_ftn4" id="_ftnref4">[4]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Rabot</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Yoann Rabot had suffered various tariff injuries including whiplash, alongside soft tissue injuries to the knees, for which no tariff applied.<a href="#_ftn5" id="_ftnref5">[5]</a>&nbsp; The tariff award at first instance was assessed at £1,390 and the non-tariff £2,500, totalling £3,890.&nbsp; Hennessy DJ, sitting in the County Court at Birkenhead, then ‘<em>stepped back</em>’ to consider whether adjustment was necessary, applying the <em>‘totality principle’</em> identified by Pitchford LJ in <em><u>Sadler v. Filipiak</u></em>.<a href="#_ftn6" id="_ftnref6">[6]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It is in my judgment always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the JSB guideline advice, to consider whether the award for pain, suffering and loss of amenity should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person's recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting...’</em><a href="#_ftn7" id="_ftnref7">[7]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following this application, Rabot’s overall award was reduced to £3,100.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Briggs</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Similarly, Briggs, whose claim was heard by the same judge, suffered tariff-caught soft tissue injuries, alongside elbow, knee and hip injuries for which Parliament had not prescribed a set remedy.&nbsp; The tariffed injuries amounted to an award of £840, with non-tariff at £3,000.&nbsp; Hennessy DJ, stepping back and identifying an overlap between the two sets of injuries, reduced the award by £1,040 to give a total of £2,800.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Appeal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The question for the Court to determine was this: what approach should be taken when coming to assess a combination of tariff and non-tariff injuries where a given claim involves both?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On that question, the Court of Appeal was divided.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Nicola Davies LJ, with whom Stuart-Smith LJ agreed, held by majority that on interpretation of the whiplash regulations, the assessments at first instance were correct.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At paragraph 38 of her judgment, Nicola Davies LJ set out the approach to be taken by the Court:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It follows that the approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that the court should:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><em>assess the tariff award by reference to the Regulations;</em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><em>assess the award for non-tariff injuries on common law principles; and Judgment Approved by the court for handing down Rabot v Hassam; Briggs v Laditan;</em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><em>“step back” in order to carry out the Sadler adjustment, recognising that the sum included in the tariff award for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles’</em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>‘There is one caveat, namely that the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In essence, consider each injury as intended by statute or at common law, then step back to determine totality.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The caveat provided is noteworthy.&nbsp; The total award would be no lower than what the PSLA would have been in a given case for the non-tariff injuries by themselves.&nbsp; In other words, a claimant cannot walk away with a lesser sum by bringing both claims together.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Geoffrey Vos MR, dissenting, determined that the parliamentary award represented full compensation for the injuries taken together.  The consequence of that approach would mean the award for any non-tariff injury would only amount in a small uplift on the original sum.  Stuart-Smith LJ suggested it was hard to reconcile such an application of the law with the conclusion reached:<a id="_ftnref8" href="#_ftn8">[8]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The Master of the Rolls starts with an acceptance that the 2018 Act “removed certain claimants’ rights to full compensation for whiplash injuries, but not for other kinds of injury”; but he reaches the conclusion that “Parliament has legislated for the reduction of general damages for non-whiplash personal injuries in cases where whiplash injuries have been sustained, even though the statute does not appear specifically to be directed at non-whiplash cases.” (My emphasis). There is an obvious tension between these two statements. Since it is accepted that the 2018 Act does not remove any claimants’ rights to full compensation for other kinds of injury, the conclusion can only be supported if the terms of the statute effect the change by necessary implication and the consequential alteration to the common law was necessary and no more than necessary: see Lachaux at [13], cited by Nicola Davies LJ above.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The dissenting view mirrors the approach taken by many insurance companies when defending such claims.&nbsp; Following <em>Rabot</em>, insurers are likely to review their position.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Courts across the country now have a methodology upon which to value these claims.&nbsp; But is that the final word on the subject?&nbsp; We await to see whether leave to appeal will be sought to take the matter up to the Supreme Court in due course.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The full judgment can be found <a href="https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/19">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The tariffs found within the Whiplash Injury Regulations 2021 can be found <a href="https://www.legislation.gov.uk/uksi/2021/642/regulation/2/made">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/">Bharat Jangra</a>, called 2019, is a junior member of the civil and employment teams in Chambers.&nbsp; He is regularly instructed in representing parties at hearings in relation to assessment of quantum and in drafting advices on quantum.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> is a pupil in Chambers currently under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/jim-hester/">Jim Hester</a>.&nbsp; He will be accepting instructions in second six from 3 April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> [2023] EWCA Civ 19</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> Para 2 ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> So long as they do not exceed, or are not likely to exceed, two years – Section 3(1)(b)(i) Civil Liability Act 2018</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> Section 3</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5" id="_ftn5">[5]</a> In quantifying PSLA for non-tariff injuries, the common law principles apply – see <em>Attorney General of St Helena v. AB</em> [2020] UKPC 1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6" id="_ftn6">[6]</a> [2011] EWCA Civ 1728</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7" id="_ftn7">[7]</a> Para 34 ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8" id="_ftn8">[8]</a> Para 43 ibid</p> <!-- /wp:paragraph -->

Mr Robert Cratchit v. Scrooge and Marley Limited

<!-- wp:paragraph --> <p>Charles Dickens’ <em>A Christmas Carol</em> features the most eminent of all unscrupulous festive employment relationships.&nbsp; That between Ebenezer Scrooge and Bob Cratchit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The firm<em> Scrooge and Marley</em> is an employer like no other (though like many others at the time).&nbsp; Whilst the late Mr Marley no longer presides, his joint business partner, Mr Scrooge, continues to rule with an iron fist.&nbsp; And Bob Cratchit, doting father to Tiny Tim, is a loyal, patient clerk who finds himself confronted with a problematic working environment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dickens’ iconic work centres on the reformation of Scrooge’s life through the visits of various Christmas ghosts, rather than any of his firm’s employment rights violations.&nbsp; The latter would have been surprising, given that employment relationships back in early Victorian England were governed by nothing more than an unwritten moral code.&nbsp; And even that moral code was ignored by most.<a href="#_ftn1" id="_ftnref1">[1]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Still, Christmas ghosts provide limited entertainment to employment lawyers.&nbsp; And the classic tale has been told and retold countless times.&nbsp; It is time for a different approach.&nbsp; Applying modern day employment law principles to <em>Scrooge and Marley</em>, what would Bob Cratchit’s claim look like?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Working conditions</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dickens’ description of the firm’s counting-house paints the picture of a workplace that is less than accommodating:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The door of Scrooge’s counting-house was open that he might keep his eye upon his clerk, who in a dismal little cell beyond, a sort of tank, was copying letters. Scrooge had a very small fire, but the clerk’s fire was so very much smaller that it looked like one coal. But he couldn’t replenish it, for Scrooge kept the coal-box in his own room; and so surely as the clerk came in with the shovel, the master predicted that it would be necessary for them to part. Wherefore the clerk put on his white comforter, and tried to warm himself at the candle; in which effort, not being a man of a strong imagination, he failed.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Regulation 7 of The Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) (the Workplace Regulations) provides that, during working hours, the workplace indoor temperature must be ‘<em>reasonable</em>’.<a href="#_ftn2" id="_ftnref2">[2]</a>&nbsp; Paragraph 61 of the HSE Approved Code of Practice and guidance assists on the meaning of reasonable in this context:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘61 The temperature in a workplace should normally be at least 16 degrees Celsius. If work involves rigorous physical effort, the temperature should be at least 13 degrees Celsius. However, these temperatures may not necessarily provide reasonable comfort, depending on other factors such as air movement, relative humidity and worker clothing. Temperature readings should be taken close to workstations, at working height and away from windows.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dickens depicts a counting-house closer to 16 degrees Fahrenheit than Celsius.&nbsp; And Scrooge has failed to provide adequate local heating<a href="#_ftn3" id="_ftnref3">[3]</a>, or issue suitable clothing.<a href="#_ftn4" id="_ftnref4">[4]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Regrettably for Cratchit, Scrooge’s breach of the Workplace Regulations does not give rise to civil liability<a href="#_ftn5" id="_ftnref5">[5]</a> and in any event would not fall within the jurisdiction of the Employment Tribunal.&nbsp; However, breach of the Workplace Regulations could be used as evidence of Scrooge’s negligence in a personal injury claim if Cratchit was to become injured as a result of the cold.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It could alternatively form the grounds of a breach of the implied term that the working environment be reasonably safe.&nbsp; If Cratchit chose to resign as a result, he could argue constructive unfair dismissal under section 95 (1) (c) of the Employment Rights Act 1996 (ERA 1996) on the basis that the freezing temperatures were enough to repudiate the contract between he and the firm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Threatened dismissal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The book recounts of an incident which arose when Scrooge’s nephew came to visit the counting-house.&nbsp; The nephew having voiced to his uncle the virtues of Christmas spirit, Cratchit felt compelled to respond:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The clerk in the Tank involuntarily applauded. Becoming immediately sensible of the impropriety, he poked the fire, and extinguished the last frail spark for ever.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘“Let me hear another sound from you,” said Scrooge, “and you’ll keep your Christmas by losing your situation!’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Scrooge threatening the termination of Cratchit’s employment in such circumstances gives rise to a further breach of the implied term of trust and confidence and a further potential claim of constructive unfair dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case of&nbsp;<a href="https://uk.practicallaw.thomsonreuters.com/D-006-8588?originationContext=document&amp;transitionType=PLDocumentLink&amp;contextData=(sc.Default)&amp;ppcid=b2137dc87b94430e8fde8f08836bd9b6"><em>Horkulak v. Cantor Fitzgerald International</em> [2003] IRLR 756</a>&nbsp;illustrates how intolerable working environments may constitute a breach of the implied term of trust and confidence, and Crachit would certainly have a plethora of evidence, should he chose resign in response to Scrooge’s treatment of him at work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Further, if Crachit complained about working conditions and was sacked, he could make a claim of automatic unfair dismissal under section 103 ERA 1996 on the grounds that his dismissal was because he had made a protected disclosure and such disclosure was the principal reason for his dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Holiday</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For all of Scrooge’s bitterness, he does demonstrate one gesture of seasonal good-will in begrudgingly granting his employee a paid day of holiday to celebrate Christmas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“You’ll want all day tomorrow, I suppose?” said Scrooge.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“If quite convenient, sir.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“It’s not convenient,” said Scrooge, “and it’s not fair. If I was to stop half-a-crown for it, you’d think yourself ill-used, I’ll be bound?”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>The clerk smiled faintly.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“And yet,” said Scrooge, “you don’t think me ill-used, when I pay a day’s wages for no work.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, it becomes apparent that Scrooge does not make a habit out of granting leave:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The clerk observed that it was only once a year.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“A poor excuse for picking a man’s pocket every twenty-fifth of December!” said Scrooge, buttoning his great-coat to the chin. “But I suppose you must have the whole day. Be here all the earlier next morning.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Evidently, Scrooge fails to afford his clerk the statutory minimum annual leave for full-time workers required by modern-day law.&nbsp; Full time workers are entitled to 28 days of leave by virtue of the combined effect of regulation 13 of the Working Time Regulations (WTR) 1998 (SI 1998/1833), which grants the first 20 days, and regulation 13A WTR 1998, which provides an additional 8 days.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If Scrooge grants only one measly day of holiday each year, Cratchit can bring a claim in the Employment Tribunal seeking a declaration, alongside such compensation as the tribunal considers just and equitable in all the circumstances, having regard to Scrooge’s default in refusing to permit Cratchit to exercise his right, and any loss sustained by Cratchit as a result, per regulation 30 (3) and (4) WTR 1998.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Harassment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Scrooge has no issue voicing his opinions at work.&nbsp; When a charity stops by seeking donations for the poor, Scrooge retorts:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Are there no prisons?” asked Scrooge.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Plenty of prisons,” said the gentleman, laying down the pen again.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“And the Union workhouses?” demanded Scrooge. “Are they still in operation?”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>[…]</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Both very busy, sir.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Oh! I was afraid, from what you said at first, that something had occurred to stop them in their useful course,” said Scrooge. “I’m very glad to hear it.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst such an exchange is likely to have made Cratchit squirm, it does not give rise to a claim.&nbsp; The outburst was not directed at Cratchit, and nor is the comment related to a protected characteristic on his part.&nbsp; Though Scrooge’s manner here could be enough to create a hostile working environment, Cratchit may have to let this one pass.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Discrimination by association</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It does not seem that Bob Cratchit could rely on a protected characteristic of his own with which to bring a discrimination claim, although his employer must still proceed with caution.&nbsp; Dickens reveals later in the book that Cratchit’s son, Tiny Tim, is disabled.&nbsp; This fact is revealed to Scrooge during his time spent with the Ghost of Christmas Present.&nbsp; From Christmas night forward, Scrooge has knowledge of Tim’s disability for the purposes of section 15(2) Equality Act 2010.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Cratchit may also be able to bring a claim of direct disability discrimination by association if he were able to establish that he was treated less favourably because he is linked or associated with his son’s disability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Given Scrooge’s propensity for outbursts about those less fortunate than he, it could also give rise to a potential claim of harassment, if such comments related, for example, to Tiny Tim’s disability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Summary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst Bob Cratchit cannot bring a claim for breach of the Workplace Regulations, he enjoys strong prospects in a claim under the WTR 1998 for holiday pay, and if he chose to resign in response to Scrooge’s conduct, as understandably he might, a claim of constructive unfair dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>And that assessment is made following one Christmas eve night which forms the subject of the book’s opening.&nbsp; Doubtless there were many more infringements experienced by Cratchit during his employment at the firm which would give most modern-day employment lawyers much food for thought.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Though Cratchit may find himself struggling to argue for a time extension to bring any such claim, given the events of the book were set in 1843.<a href="#_ftn6" id="_ftnref6">[6]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Merry Christmas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> is a pupil barrister at Parklane Plowden under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a>, <a href="https://www.parklaneplowden.co.uk/our-barristers/michael-james/">Michael James</a>, and <a href="https://www.parklaneplowden.co.uk/our-barristers/jim-hester/">Jim Hester</a>.&nbsp; He will be accepting instructions from April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> But not all Victorian employers were like Scrooge.&nbsp; A famous example of a contemporaneous employer who took a different approach to workers’ rights was the textile designer, William Morris.&nbsp; See his ‘Policy of Abstention’ (1887).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> 38 MPs this year called for the law to go further, bringing an early day motion calling for legislation which would limit maximum workplace temperatures to 30/27 degrees Celsius, depending on the nature of the work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> Para 65 of the Guidance</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> Para 69 ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5" id="_ftn5">[5]</a> Section 69 of the Enterprise and Regulatory Reform Act 2013</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6" id="_ftn6">[6]</a> Limitation expires after 3 months and the bringing a claim 179 years out of time is unlikely to be granted an extension of time.</p> <!-- /wp:paragraph -->

‘NOT WILLING TO ACT’: assessing the court’s power to appoint personal representatives to the deceased

<!-- wp:paragraph --> <p><strong>Imagine this scenario:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>You are owed money by a business which has since fallen into liquidation.&nbsp; Fortunately for you, the director of said business signed a personal guarantee on the debt.&nbsp; Less fortunately for all involved, said director of said business has passed away.&nbsp; You seek out an executor to no avail; he died intestate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Thankfully for you, CPR 19.8 provides for such a circumstance.&nbsp; You can make an application for an order to appoint a personal representative (PR) to the deceased’s estate, pursuant to r.19.8 (2) (b) (ii):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘19.8 (2) Where a defendant against whom a claim could have been brought has died and-</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) […]</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) a grant of probate or administration has not been made-</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(i) the claim must be brought against “the estate of” the deceased; and</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court’s broad powers in granting PR appointments were summarised by Walker LJ in <em><u>Berti v. Steele Raymond</u></em>:<a href="#_ftn1" id="_ftnref1"><em><strong>[1]</strong></em></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘[I]t is apparent from the rule [r.19.8] as a whole that it gives the court quite wide powers to dispense with the need for a formal grant of probate or letters of administration after the death of a party.&nbsp; It seems to recognise that, especially with relatively small claims, the need for a formal grant may be disproportionate and cause unnecessary delay and expense.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The typical approach is that ‘<em>[T]he best person for the court to appoint under r.19.8 is the person most likely to have a right to apply for a formal grant of representation.</em>’ <a href="#_ftn2" id="_ftnref2">[2]</a>&nbsp; That might be a spouse or civil partner, a child, or a parent.&nbsp; Such appointments are made ad litem.<a href="#_ftn3" id="_ftnref3">[3]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Returning to the scenario I posed, you know your late debtor leaves behind a widow.&nbsp; She, surely, would make a suitable appointment.&nbsp; There is only one sticking point: she has no desire to act in such a capacity.&nbsp; Can the court compel her?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Such was the case in the recently heard <em><u>Ghazanfarihashemi and Ghanbariannaeeni v. The Estate of Mr Mohammad Reza Kanji (Deceased) and Ors</u></em><a href="#_ftn4" id="_ftnref4"><em><strong>[4]</strong></em></a> in the King’s Bench Division, in which Michael James acted for the proposed appointee, a Mrs J.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claimants sought that the court appoint the deceased defendant’s widow, Mrs J, as PR to his estate.&nbsp; There were various factors which rendered Mrs J ill-suited to being drafted into the proceedings.&nbsp; She spoke limited English and would require the support of both an interpreter and her children.&nbsp; She had little to no knowledge of her late husband’s financial affairs.&nbsp; She was, by her own account, far from equipped to participate in complex commercial proceedings.&nbsp; Yet even more fundamentally than all the above, she flatly did not wish to have any involvement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court can, on the reading of r.19.8 (2), appoint anyone it likes.&nbsp; The rule provides for an unfettered discretionary power.&nbsp; And there is radio silence on consent to be joined as PR in the White Book commentary.<a href="#_ftn5" id="_ftnref5">[5]</a>&nbsp; Perhaps this is to be expected, given that r.19.8 is generally exercised in circumstances where the PR is ready, willing, and waiting to act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But none of this assists the court when it comes to Mrs J.&nbsp; What is the right approach when dealing with those in her position?&nbsp; Does the court have the power to appoint a PR against their will?&nbsp; If the court has power, ought the court to exercise the power in the above circumstances?&nbsp; Would it be in the parties’ interests to do so?&nbsp; Could such an order even be enforced?&nbsp; To begin to answer these questions, one must be prepared to delve back to some of the older authorities.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>History of PR consent</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Judges were opining on PR consent long before r.19.8 came to be drafted.&nbsp; A prior incarnation of the rule was s.XLIV<a href="#_ftn6" id="_ftnref6">[6]</a> Court of Chancery Procedure Act 1852 c.86.&nbsp; S.XLIV provided that the court may proceed in any claim without a PR, or the court may appoint one:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘If in any Suit or other Proceeding before the Court it shall appear to the Court that any deceased Person who was interested in the Matters in question has no legal personal Representative, it shall be lawful for the Court either to proceed in the Absence of any Person representing the Estate of such deceased Person, or to appoint some Person to represent such Estate for all the Purposes of the Suit or other Proceeding, on such Notice to such Person or Persons, if any, as the Court shall think fit, either, specially or generally by public Advertisements; and the Order so made by the said Court, and any Orders consequent thereon, shall bind the Estate of such deceased Person in the same Manner in every respect as if there had been a duly constituted legal personal Representative of such deceased Person, and such legal personal Representative had been a Party to the Suit or Proceeding, and had duly appeared and submitted his Rights and Interests to the Protection of the Court.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>S.XLIV was considered in <em><u>Hill v. Bonner</u><a href="#_ftn7" id="_ftnref7"><strong>[7]</strong></a></em>, when the claimant sought that a Mr Hoper be appointed PR.&nbsp; It is recorded that Mr Hoper objected to the appointment.&nbsp; Sir John Romilly MR held<em>: ‘I cannot appoint a person as a representative who is not willing to act.’&nbsp; </em>Those words made plain that the court considered consent, beyond being a mere factor for the court to consider, a bar to appointment entirely.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Consent was held as a prerequisite to appointment, with reference to <em>Hill</em>, in <em><u>Joint Stock Discount Co. v. Brown (No. 2)</u></em><a href="#_ftn8" id="_ftnref8">[8]</a>.&nbsp; A breach of trust claim was brought against a list of defendant directors.&nbsp; Two of whom, Mr Dent and Mr White, subsequently died abroad.&nbsp; Mr White’s widow appeared to have been appointed his executrix.&nbsp; She declined to be involved.&nbsp; The court determined that a consenting surviving defendant, Mr Biden, should be appointed PR.&nbsp; Sir William Milbourne James VC held:<a href="#_ftn9" id="_ftnref9">[9]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘I cannot appoint a person to be representative of the estate against his will. Consequently I am unable to make the order</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>which I proposed at first; and I will accordingly do this: I will appoint Mr Biden, who consents, to be the representative, unless</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>within fourteen days after service of the notice, the widow of Mr</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>White, and his solicitors on the record, or either of them, should</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>appear and elect to represent the estate, in which case the widow</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>and the solicitors, or she, or they, will be appointed.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>S.XLIV was later incorporated into the Rules of the Supreme Court Order 16, Rule 46:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘If in any suit... it shall appear to the Court that any deceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the Court... to appoint some person to represent such estate for all.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Order 16, Rule 46 was sought in <em><u>Pratt v. London Passenger </u></em><em><u>Transport Board</u></em>.<a href="#_ftn10" id="_ftnref10">[10]</a>&nbsp; The question in that case was whether the Official Solicitor could be appointed as representative of an estate of a third person, whom the defendants blamed for an accident, without his consent.&nbsp; It was held they could not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Pratt</em> was to be affirmed in the comparatively recent authority, <em><u>Lean v. Alston</u>.</em><a href="#_ftn11" id="_ftnref11">[11]</a>&nbsp; Since <em>Lean</em>, the reported authorities do not appear to consider PR consent at all.&nbsp; <em>Pratt</em> is referenced in <em>Williams, Mortimer &amp; Sunnucks, Executors, Administrators and Probate</em><a href="#_ftn12" id="_ftnref12">[12]</a>.&nbsp; It is plain from the wording of the extract that this issue lacks clarity:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘<u>Presumably</u> no person will be appointed under CPR r.19.8 (2) (b) (ii) unless his consent is first obtained, as was the position under the corresponding provision of the RSC (Pratt v L.P.T.B. [1937] 1 All E.R. 473).’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(Emphasis added)</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the current r.19.8 (2), nor any of its previous forms, expressly require consent, case law since <em>Hill and Joint Stock </em>signals that consent is fundamental and that the court does not have the power compel a person to act without it.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The outcome in </strong><strong><em>Ghazanfarihashemi</em></strong><strong></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On hearing the claimants’ application, and on considering the submissions advanced on behalf of Mrs J on her lack of consent and the authorities, Master Dagnall held that Mrs J was an inappropriate person to be appointed as PR and declined to grant the order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Given that the straightforward nature of the assets sought by the claimants, the court determined that the claim would not require the input of the Official Solicitor.<a href="#_ftn13" id="_ftnref13">[13]</a> Instead, the court allowed the claim to proceed against the defendant in the absence a personal representative.<a href="#_ftn14" id="_ftnref14">[14]</a>&nbsp; The claimants were ordered to give notice of the date of the upcoming hearing by placing advertisements in one local and one national newspaper.<a href="#_ftn15" id="_ftnref15"><em><strong>[15]</strong></em></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Just as Mr Hoper had been over a century and a half prior in <em>Hill</em>, Mrs J was awarded her costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Why consent is fundamental</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is inevitable that consent is a factor the court will have at the forefront of its mind when considering PR appointment.&nbsp; A PR will be subject to the same fiduciary duties as an executor for the purposes of the litigation.&nbsp; The court cannot be certain that those duties will be satisfied by persons who are compelled to act against their will.&nbsp; And it is not in the interests of the court to grant an order which requires continuous surveillance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moreover, it is not in accordance with the overriding objective for the court to grant orders which prove unenforceable.&nbsp; Just as an executor has the power to renounce their status, so too, by extension, does a PR.&nbsp; The court could not prevent a PR who it so appoints from renouncing their newly held position as soon as the order is made.&nbsp; That a person does not consent is a clear indication they are likely to take such a course of action.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As in <em>Ghazanfarihashemi</em> itself, in cases where there is a lack of consent, it follows that there may well be reasons to justify that position, which themselves make appointment undesirable.&nbsp; For example, even if Mrs J had consented, the court would have been reluctant to appoint her under circumstances where she required the assistance of translator to carry out her duties.&nbsp; Such reasons should not be allowed to cloud the fundamental position on consent.&nbsp; Regardless of the capacity of a person, the case law is clear: PR appointments are to be made on a voluntary basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Providing future clarity</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Perhaps r.19.8 (2) should incorporate an express requirement for consent so as to accurately reflect the approach taken in case law since <em>Hill and Joint Stock</em>.&nbsp; All that is necessary is the inclusion of one additional word:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>19.8 (2) Where a defendant against whom a claim could have been brought has died and-</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) […]</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) a grant of probate or administration has not been made-</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(i) the claim must be brought against “the estate of” the deceased; and</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(ii) the claimant must apply to the court for an order appointing a <u>consenting</u> person to represent the estate of the deceased in the claim</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen </a>commenced pupillage in October 2022. Robert is currently undertaking the commercial leg of his pupillage under the supervision of Michael James.&nbsp;He will be accepting instructions from April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> [2001] EWCA Civ 2079</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> See White Book commentary at 19.8.1</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> I.e., for the purposes only of the claim</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> [Unreported]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5" id="_ftn5">[5]</a> See 19.8.3</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6" id="_ftn6">[6]</a> That is ‘s.44’ for the post-Romans</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7" id="_ftn7">[7]</a> [1858] 26 Beav. 372</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8" id="_ftn8">[8]</a> [1869] L.R. 8 Eq. 376</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref9" id="_ftn9">[9]</a> [380] ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref10" id="_ftn10">[10]</a> [1937] 1 All E.R. 473</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref11" id="_ftn11">[11]</a> [1947] K.B. 467</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref12" id="_ftn12">[12]</a> (Sweet &amp; Maxwell, 20th Ed.): Chapter 65 - The Representative as Defendant: Section B - Parties in Action against Personal Representatives at para 65-13</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref13" id="_ftn13">[13]</a> The Official Solicitor can be appointed as an alternative if no other suitable person is identified to represent the estate.&nbsp; The cost of appointing the Official Solicitor is high and parties will seek to avoid it unless absolutely necessary to pursue a claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref14" id="_ftn14">[14]</a> As in <em>Ballard v. Milner</em> [1895] W.N. 14</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref15" id="_ftn15">[15]</a> Per r.19.8 (4), which provides <em>‘Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.’</em></p> <!-- /wp:paragraph -->

REASONING WITH BELIEF: Reflecting upon the recent approach to ‘reasonable belief’ in whistleblowing cases

<!-- wp:paragraph --> <p>It is well established that a whistleblowing claim may only succeed if the whistleblower makes a ‘qualifying disclosure’.&nbsp; A claimant must satisfy the tribunal that they reasonably believed their disclosure (i) tended to show a breach of a legal obligation and (ii) was made in the public interest.<a href="#_ftn1" id="_ftnref1">[1]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst many whistleblowing cases turn on the causation of any alleged detriment, making out such a protected disclosure can, in and of itself, present several issues for claimants.&nbsp; In the recent case of <em><u>Martin v. London Borough of Southwark and Ors</u></em><a href="#_ftn2" id="_ftnref2">[2]</a>, the Employment Appeal Tribunal (EAT) examined one such issue: that of reasonable belief.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The doctrine of reasonable belief in a whistleblowing context was explored some 15 years ago by Wall LJ in <em><u>Babula v. Waltham Forest College</u></em><a href="#_ftn3" id="_ftnref3">[3]</a>:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘[I]<em>n my judgment, the word ‘belief’ in section 43B(1) is plainly subjective.&nbsp; It is the particular belief held by the particular worker.&nbsp; Equally, however, the ‘belief’ must be ‘reasonable’.&nbsp; That is an objective test.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Subjective belief and objective reasonableness are not mutually exclusive.&nbsp; Wall LJ opined that it was ‘[the claimant’s] <em>belief (which is inevitably subjective)</em> [that must be] <em>held by the Tribunal to be objectively reasonable.</em>’ <a href="#_ftn4" id="_ftnref4">[4]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>So, the test is twofold.&nbsp; First, whether a claimant held a subjective belief.&nbsp; Second, whether <em>that </em>subjective belief, given the facts known to <em>that</em> claimant, was reasonable by an objective standard.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Such an approach has been adopted throughout English law.&nbsp; Most recently in the now standardised dishonesty test, reformulated by the Supreme Court in <em><u>Ivey v. Genting Casinos Ltd t/a Crockfords</u></em>.<a href="#_ftn5" id="_ftnref5">[5]</a> &nbsp;Following <em>Ivey</em>, the court is asked first to enquire as to the subjective state of a person’s honesty, before considering whether that same state of mind was objectively honest.&nbsp; Indeed, a similar model has also been applied within the criminal courts in the context of self-defence.<a href="#_ftn6" id="_ftnref6">[6]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The two-stage test requires a level of nuance.&nbsp; And for good reason.&nbsp; Applying an objective standard alone fails to take into account the state of the claimant’s own mind at the time the disclosure was made.&nbsp; The tribunal can only fairly assess whether a given belief was reasonable by stepping into the shoes of the claimant, so that their words and actions during the making of the disclosure can be properly reconciled.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Martin</em>, the EAT had cause to re-emphasise the consequences of this approach. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Martin, in his capacity as a teacher at a hospital school, grew concerned that he and his fellow staff were being required to work hours in excess of Directed Time<a href="#_ftn7" id="_ftnref7">[7]</a>.&nbsp; Martin disclosed the same to the head teacher by email:<a href="#_ftn8" id="_ftnref8">[8]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>I am looking at our working hours for teachers and seem unable to reconcile them to statutory guidance, and all my conservative calculations, clearly I may be missing something</em>’, Martin wrote.&nbsp; He went on: ‘<em>From my calculations the excess of directed time for each full-time teacher is in excess of 97.5 hours for this academic year 05/09/16-21/07/17, clearly I may be missing something. Please may we discuss this?</em>’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The issue was whether Martin reasonably believed he had disclosed information tending to show a breach of the legal obligation to follow the School Teachers’ Pay and Conditions Document.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is fair to say Martin adopted tentative, even provisional, wording.&nbsp; But was it fair, as the Employment Tribunal (ET) found at first instance<a href="#_ftn9" id="_ftnref9">[9]</a>, to say that Martin’s words amounted to an ‘<em>enquiry rather than a disclosure of information</em>’?&nbsp; The ET’s view was that ‘[it was] <em>clear from the wording that the purpose of the letter </em>[was]<em> to invite a discussion</em>’ and that he was ‘<em>not alleging that there was a breach of a legal requirement</em>.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On appeal, Tayler J held that the ET had erred in its approach.&nbsp; It had not applied the two-stages as referenced in <em>Babula</em>.&nbsp; The ET had taken Martin’s caution, by objective assessment, as an indication that he lacked the requisite certainty that Directed Time had been exceeded.&nbsp; The ET had approached the question of reasonable belief on a purely objective basis:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>The tribunal did not consider what the claimant’s subjective belief was or whether that belief was objectively reasonable.</em>’ <a href="#_ftn10" id="_ftnref10">[10]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is, of course, unsurprising that Martin was cautious when flagging the issue.&nbsp; Most employees do not operate under a universal assumption that their employer is acting in breach of a statutory obligation.&nbsp; Discovery of such a breach may come as a surprise, often triggering self-doubt.&nbsp; A whistleblower’s words should be seen in this context; that requires a degree of subjectivity.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is also plain from Martin’s email that he had taken it upon himself to research the nature of the breach.&nbsp; He had conducted the necessary calculations and understood the lawful position.&nbsp; In other words, he came armed with information which tended to show the breach and disclosed that information to his employer.&nbsp; That he may have invited his employer to refute that same information did not undo his first act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Yet, applying a blanket objective approach, the ET took Martin’s words ‘<em>clearly, I may be missing something. Please may we discuss this</em>?’ in their ordinary meaning, and out of the context originally intended by Martin himself.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Reasonable belief demands objective rationality, but the EAT’s decision in <em>Martin</em> is a worthy reminder that the facts known to, and particular beliefs of, the whistleblower in question must not be ignored.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> commenced pupillage in October 2022 under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a>.&nbsp; Robert will be ready to take instructions from April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn1" href="#_ftnref1">[1]</a> Section 43B Employment Rights Act 1996</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref2" id="_ftn2">[2]</a> EA-2020-000432-JOJ</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref3" id="_ftn3">[3]</a> [2007] EWCA Civ 174 at [82]</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref4" id="_ftn4">[4]</a> [75] ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref5" id="_ftn5">[5]</a> [2017] UKSC 67</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn6" href="#_ftnref6">[6]</a> <em>R v. Gladstone Williams</em> [1987] 3 All ER 411</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn7" href="#_ftnref7">[7]</a> Directed time is when teachers are directed by their head teacher to be at work and available for work. The vast majority of publicly funded schools in England operate according to the School Teachers’ Pay and Conditions Document (STPCD), which states that a classroom teacher can only be directed by the headteacher to work for up to a maximum of 1,265 hours over 195 days of the year.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref8" id="_ftn8">[8]</a> [16] of <em>Martin</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref9" id="_ftn9">[9]</a> [20] ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn10" href="#_ftnref10">[10]</a> [18] ibid</p> <!-- /wp:paragraph -->