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Pupils Andrew, Bharat and Sophie share their experiences and insights of their first week ‘on their feet’

<!-- wp:paragraph --> <p>Our pupils are now on their feet and accepting instructions since 4th April 2022. Here, they share their first week's schedule and tell us more about their experiences.</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":4} --> <h4><strong><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-mohamdee/" target="_blank" rel="noreferrer noopener">Andrew Mohamadee</a></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph --> <p><strong>Diary </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Monday</strong>: received my first set of papers. Spent the day sifting through the bundle and drafting a skeleton argument regarding which Local Authority had jurisdiction for the proceedings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Tuesday</strong>: prepared and sent a case summary to court, followed by an advocates’ meeting ahead of a hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Wednesday</strong>: sifting through the papers for a different matter. Prepared and sent a case summary, and attended an advocates’ meeting.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Thursday</strong>: appeared in Court on behalf of a Local Authority at a case management hearing in care proceedings. Received papers and prepared for a NMO case listed for Friday.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Friday</strong>: Friday: in the morning I represented a Local Authority at what was an early final hearing for the discharge of the care order. I then travelled to Liverpool to represent the respondent to a non-molestation order application.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What was the most interesting case you had on your first two weeks on your feet?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>I have enjoyed working on all the cases for which I’ve been instructed. Of particular interest has been a case which was listed for a financial dispute resolution (FDR) hearing. This is an area that I have had considerable experience and exposure to, both in my academic and work history, so it is satisfying that I am now able to advise and represent clients in their financial matters.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>How have you found it so far doing your own cases?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>It has been immensely enjoyable and rewarding to work on my own cases. Each case offers its unique set of circumstances and challenges, and embracing the opportunity to work through the issues and propose a fair outcome has been thoroughly satisfying and fulfilling.</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":4} --> <h4><strong><a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/" target="_blank" rel="noreferrer noopener">Bharat Jangra</a></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph --> <p><strong>Diary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Monday 4 April </strong>- Today was my first day ‘on my feet’ and the first day of my second six. I had a small claims trial for credit hire charges at 2pm over the telephone.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I undertook my case preparation, working around attending the weekend PIBA (Personal Injury Bar Association) Conference in Oxford. It was a great weekend of lectures and opportunities to meet other practitioners at the PI Bar.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once I had read through the papers, I sent an email to my Instructing Solicitors to raise some further queries and to confirm instructions on various points, credit hire can be a legal minefield.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I was able to speak with the solicitor during the morning and subsequently able to finalise my submissions. However, at 12:45pm, the solicitor got in touch to let me know I had been stood down as the hearing had been vacated. At least I'll be prepped for next time!</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Tuesday 5 April</strong> - Today was a Stage 3 hearing via telephone, to assess how much an individual was to receive in compensation for their injury. Once I had reviewed the papers, I advised the Client that we were likely to face Part 36 cost consequences if we did not accept the Claimant's offer. The Client was unable to accept the offer and we had to proceed to the hearing. Following the Judge's determination, my client did receive Part 36 cost consequences against it which I needed to calculate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Wednesday 6 April</strong> - I had an application hearing to apply for permission to obtain further medical evidence to assist in quantifying the Claimant's claim, if successful. There were also complicating factors surrounding the application, which did not assist my client. A compromise position was reached for my client to, in effect, renew their application at the conclusion of the liability trial if they win due to take place within the next month. This ensured that the trial date was not lost and my client had not suffered any detriment by having their application refused.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For<strong> Thursday and Friday</strong>, I remained in Chambers and worked on papers, advising on the merits of an employment claim and finalising an advice regarding a Highways Act claim. It has been a varied week with lots going on, and I have enjoyed every bit of it.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What was the most interesting case you had on your first two weeks on your feet?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The most interesting case so far has been the application to adduce further medical evidence I did on Wednesday 6 April. A tactical decision needed to be made, as agreed with my instructing solicitors, to make sure that the Client's position was maintained and nothing happened to their detriment, which was a very real possibility.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>How have you found it so far doing your own cases?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>It has been an enjoyable experience but there's also been equal amounts of nerves and stress. However, I have been reminding myself that this has been a goal I have been working towards for the past eight years and I'm just happy I'm able to do this job. I'll be taking each day as it comes and looking forward to what the next six months bring.</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":4} --> <h4><strong><a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph --> <p><strong>Diary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>My first case was on <strong>Tuesday </strong>remotely. I was extremely nervous but excited. This turned out to be a challenging case as it had every credit hire issue in dispute and costs had to be assessed on a standard basis. Despite this I enjoyed it and felt thoroughly welcomed to the profession by all those involved in the hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I attended my first in person hearing for a road traffic liability dispute on the <strong>Thursday</strong>. It was great to be in person and further test out my advocacy skills.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the other <strong>three days </strong>I am fortunate to be provided time to still observe and learn from my supervisors. I saw day one of an Inquest, an occupier’s liability conference, a fast-track road traffic accident trial, and several small claims relating to credit hire and road traffic accidents. I certainly took away vital tips from each to aid my own practice.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What was the most interesting case you had on your first two weeks on your feet?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>It’s difficult to choose as everything is fresh and exciting at this stage. However, my road traffic liability small claim would have to be the most interesting. I had to cross-examine two witnesses on the accident which put my advocacy to the test!</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>How have you found it so far doing your own cases?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>I have thoroughly enjoyed it. It is good to put to use all that we have learned throughout the first six of pupillage. I am enjoying testing out my advocacy style in a range of different hearings. It has also made me appreciate how fortunate I am to have such helpful supervisors and colleagues, who have been there for me every step of the way.</p> <!-- /wp:paragraph -->

Giving Notice – Fundamental to Alleging Dishonesty?

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the High Court case of <em>Jenkinson v Robertson </em>[2022] EWHC 791 Mr Justice Choudhury overturned a finding of fundamental dishonesty. This case highlights the need to give a Claimant adequate notice of allegations of fundamental dishonesty and provide them with sufficient time to properly respond.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By way of the background, the Claimant sustained injuries in a road traffic collision. The first instance judge found that the Claimant was dishonest in that he exaggerated his symptoms of a back injury. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was given permission to appeal on 3 grounds:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Procedural fairness: The Claimant had not been given sufficient notice/opportunity to respond to allegations of fundamental dishonesty.<br></li><li>The Judge had wrongly reversed the burden of proof, requiring the Claimant to prove that he was not fundamentally dishonest.<br></li><li>The Judge was led into error, or was wrong, in relation to each of the factors upon which he based his decision that the Claimant was fundamentally dishonest.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Judgement</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of the first ground, the Defendant relied upon correspondence which asserted that the claim was ‘<em>exaggerated and unreasonable’ </em>as evidence of putting the Claimant on notice<em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, Mr Justice Choudhury rejected that this was sufficient to equate to allegations of fundamental dishonesty and may be misconceived. He found any doubt as to the allegations could have been cleared up by pleading with specificity.<em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendant also sought to argue, in further correspondence, that they had stated that they did not consider the Claimant’s losses to be reasonable or credible. However, Mr Justice Choudhury found that ‘<em>an allegation that a claim was not credible could amount to notice of an allegation of dishonesty; but without more… it did not unequivocally amount to such an allegation’</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court also noted that the Defendant refused to provide particulars on grounds which its s.57 Criminal Justice and Courts Act 2015 (‘s.57’) application was made, even though requested to do so. Mr Justice Choudhury found that this was not a satisfactory way to pursue an allegation of fundamental dishonesty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was ultimately found that the Claimant was not given any real notice apart from a ‘<em>vague and deliberately unparticularised allusion to the possibility of a s.57 application’. </em>This had led to key documents and information failing to be placed before the Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Justice Choudhury stated that in the interests of fairness the Claimant should have been given adequate warning of and proper opportunity to deal with fundamental dishonesty given the severe consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appeal for procedural fairness was allowed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Briefly, ground 2 was dismissed on the basis that there was no real reference in the first instance judgement of the burden of proof. It therefore could not be said that the burden had been reversed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, on ground 3, it was upheld that there were substantial errors in all 3 matters which the first instance judge found fundamental dishonesty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As acknowledged in the judgement, the Defendant is not precluded from running a s.57 defence if the same is not pleaded. However, this is another case which warns against the possibility of failing to put the Claimant on proper notice of allegations of fundamental dishonesty. Without adequate notice and sufficient time for the Claimant to respond there is a real possibility that the Court could reject allegations of fundamental dishonesty. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The full judgement can be accessed at <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2022/791.html&amp;query=(jenkinson)+AND+(v)+AND+(robertson)" target="_blank" rel="noreferrer noopener">www.bailii.org - <em>Jenkinson v Robertson</em> (Rev1) [2022] EWHC 791</a></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">Sophie Watson</a>&nbsp;is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sophie is now accepting instructions.</p> <!-- /wp:paragraph -->

Parklane Plowden Pupils&#8217; Interviews

<!-- wp:paragraph --> <p>Our pupils are on their feet and accepting instructions from today 4th April 2022. Here we interviewed them about their experience at Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":4} --> <h4><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-mohamdee/" target="_blank" rel="noreferrer noopener"><strong>Andrew Mohamadee</strong></a></h4> <!-- /wp:heading --> <!-- wp:list --> <ul><li><strong>What three words would you use to describe your role?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Stimulating, rewarding, boundless.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What do you like most about your job?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>I enjoy being confronted with new challenges and working out how to best approach them. This career provides endless opportunities to learn unfamiliar legal principles and adapt to an ever-evolving legal system. Each case and client have their own unique set of demands and need to be treated in accordance with their particular circumstances. This limitless variety invigorates one’s inquisitiveness and ensures that work remains fresh and enjoyable.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What advice would you give to recent new pupils?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>For most new pupils, the first few months of pupillage involves coming across lots of new concepts, procedures, practices, and skills. It is important to absorb as much as you can so that you feel confident going into second six. Make sure to ask plenty of questions—there’s no such thing as a silly question! While observing hearings, I found it useful to think about how I would have presented the case; what I liked about the advocacy, what I would have approached differently, etc. Doing this helps bridge the gap between simply observing court proceedings and being an advocate in the hearing. Lastly, the time flies by so make sure you embrace the learning opportunities and enjoy the journey.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>Any other comments about your time so far at Parklane Plowden?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>I’ve really enjoyed the friendliness at Parklane Plowden and the willingness of members to go out of their way to help you, whatever the issue. I am grateful to have been welcomed into chambers by people who want to see me excel in my career, and I am looking forward to what lies ahead.</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":4} --> <h4><a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/" target="_blank" rel="noreferrer noopener"><strong>Bharat&nbsp;Jangra</strong></a></h4> <!-- /wp:heading --> <!-- wp:list --> <ul><li><strong>What three words would you use to describe your role?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Problem solving communicator.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What do you like most about your job?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The advocacy! The variety of the work, no two days have been the same and no two days ever will!&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What advice would you give to recent new pupils?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Take each days as it comes. Six/twelve months does not last very long and so it's best to make sure we get the most out of each learning experience.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>Any other comments about your time so far at Parklane Plowden?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>I am very fortunate to be in a like Parklane Plowden, everyone has been incredibly supportive and willing to help. I've had a great first six, here's to the second!</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":4} --> <h4><a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener"><strong>Sophie Watson</strong></a></h4> <!-- /wp:heading --> <!-- wp:list --> <ul><li><strong>What three words would you use to describe your role?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Interesting, face-paced, diverse.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What do you like most about your job?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The work is completely varied and changes on a daily basis which makes for a new learning point every day.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>What advice would you give to recent new pupils?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>I would advise new pupils to not be afraid to have a go at any and all types of work. Inevitably we all get things wrong and first six is the time for making mistakes and learning from them.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><strong>Any other comments about your time so far at Parklane Plowden?</strong></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The support from all members of chambers and staff has been exceptional. No question (and there has been a lot of them) has been too much trouble for anyone.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I am extremely excited to start on the next stage.</p> <!-- /wp:paragraph --> <!-- wp:group --> <div class="wp-block-group"><!-- wp:group --> <div class="wp-block-group"><!-- wp:paragraph --> <p>Find out more about our pupils by visiting their profiles <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-mohamdee/" target="_blank" rel="noreferrer noopener"><strong>Andrew Mohamadee</strong></a>, <a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/" target="_blank" rel="noreferrer noopener"><strong>Bharat&nbsp;Jangra</strong></a>, <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener"><strong>Sophie Watson</strong></a>.</p> <!-- /wp:paragraph --></div> <!-- /wp:group --></div> <!-- /wp:group -->

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

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

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

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