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Negligence and Limitation in financial Remedy

This negligence case investigates limitation in financial remedy proceedings, with W complaining about her solicitors (the ‘firm’) negligence. 

The district judge decided that W’s claim against the ‘firm’:

            so far as founded in contract, was time barred, after expiry of the six-year limitation period, see s.5 of the Limitation Act 1980,

            but as founded in tort was not so barred by the equivalent provision in s.2 of that Act.

The ‘firm’ appealed against the DJ's order regarding the claim in tort.

The Circuit Judge allowed that appeal. He found that W's claim as a whole was barred by both s. 2 and s. 5 of the 1980 Act.  He awarded summary judgment in favour of the ‘firm' pursuant to CPR Part 24. 

W claimed her solicitors negligently failed to obtain expert evidence as to the value of certain real properties and jewellery, and to secure permission to admit such evidence at the (final) financial remedies hearing.

The parties owned a marital home and 9 buy to let properties, seemingly in one name or the other.  H claimed W owned jewellery of value.

On the 1st July 2011 at the FDA the value of the marital home was ordered to be obtained, but not the 9 buy to lets.

On the 11th October 2011at the FDR it was ordered that H provide evidence of jewellery and it’s value he claimed W owned.

The ‘firm’ did not ask for valuations of the 9 buy to let properties, W having given to them her valuations of properties in her name.

On 10/2/12 estate agents drive-by valuations of W’s buy to let properties were sent to H’s solicitor; they did not accept the valuations, and said they would object to their production at the forthcoming final hearing.

That seems to be the state of evidence at the final hearing.

The DJ hearing was 4 days between 16 February and 16 March 2012. Judgment was circulated, prior to handing down, which was done  and order made on 30th May 2012.

On 6th February 2016, W sent to the ‘firm’ a "formal letter of complaint", claiming to have suffered losses, for which the firm was responsible, in the sum of £268,000, made up under numerous heads of loss, including £100,000 for distress and £100,000 in respect of the property valuations.

On 26 April 2016, Ms Holt's present solicitors asked the ‘firm’ to send to them the financial relief file, in respect of which the ‘firm' then claimed a lien in respect of their unpaid costs.

In January 2017, Ms Holt made an application for pre-action disclosure of the file. That order was granted on 8 March 2017.

On 28 March 2018, the ‘firm’ issued proceedings against Ms Holt in respect of their unpaid fees in a sum of £48,708.71.

On 5 April 2018, the Claim Form in the present proceedings was issued.

The ‘firm’ said, the claim was instituted after the expiry of the six-year limitation period.

W's case was, the proceedings were issued within that period.

On 1 On August 2018, Particulars of Claim were served, claiming a total of £124,470.

In the Cost of Appeal, McCombe LJ, gave the leading judgement, in which it was said:-

The parties agreed that a claim in tort cannot be brought after the expiry of six years from the date on which the cause of action accrued: s.2 of the 1980 Act.  In tort, the cause of action accrues when damage is sustained.  What was to the date upon which the alleged damage was sustained?

W claimed it was when the judgement was handed down (same date as order,).

Both counsel also agreed that the decision has to be intensely fact specific and is dependent upon the nature of the cause of action levelled against the defendant.

It had to be loss ‘falling within the measure of damage applicable to the wrong in question’.

There was no difficulty in measuring a loss at a time when the chance of introducing further valuation evidence became in reality impossible.  At that stage, W had lost the opportunity to invite the judge to assess her case based on what she asserted were the proper values of the properties and the jewellery.  On that hypothesis, she had lost a chance of arguing her case for a better outcome on fuller evidence.

The core question was still to identify the point at which W was ‘financially worse off’/had suffered ‘measurable' damage.

Mc Combe LJ considered that W's loss was sufficiently well measurable, if not precisely quantifiable, when she lost the ability to adduce the evidence that she avers that she should have been able to produce before the District Judge in the financial remedies proceedings.  That date may, in reality, have been shortly after the FDR.  It may have been when the ‘firm’ recognised, in January 2012, that any application to the Family Court to adduce more valuation evidence would have failed.  In the present case, it could hardly have been later than the end of the hearing on 16 March 2012.

In this case, W's prospective result in the financial remedies hearing was diminished in quality because the base line for distribution of the matrimonial assets would be defined by what she contended were the inflated values of an important part of her assets. The sum that she would be likely to receive either on settlement or upon judgment would be calculated on those inflated values.

A claim to division of assets upon divorce is, however, a valuable right sounding in money. The object of the law is to compensate for damage caused by the loss or diminution of valuable rights by professional negligence.

The amount in money terms that a client is likely to realise in matrimonial proceedings will become clearer as the case progresses and his or her ‘rights' will have a readily estimable value that might fluctuate in estimation, in the course of the case.  That is not to say that it does not have value at the outset or until judgment or settlement.  It does not mean either that that value cannot be damaged by negligent conduct of the litigation in the period up to judgment.

A client's rights can be sensibly evaluated, and can be damaged by negligence, at almost any stage of the proceedings.

It is clear that after the FDR, or at latest after the Husband's solicitors made it clear in January 2012 that they would object to new valuation evidence, there was a real risk (indeed perhaps a near certainty) that the base line value of W's assets would be taken at what she says was an inflated value for the purpose of the financial relief proceedings. That inevitably meant that the value of her rights vis-à-vis the Husband were diminished. If one postponed that inevitability to 16 March 2012 (the end of the hearing), as the Circuit Judge did, it makes no difference to the outcome: damage was still suffered more than six years before the commencement of this action.

It is an interesting case because there is a tendency to think that the loss was only known when judgement was given, as W’s Counsel unsuccessfully argued.

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Guidance for Experts Witnesses on Giving Evidence Remotely

The Academy of Experts’ judicial committee, led by former Supreme Court judge Lord Saville, has produced guidance on the giving of remote evidence for expert witnesses.

https://academyofexperts.org/knowledge-hub/guidance-on-the-giving-of-remote-evidence-for-expert-witnesses/

Although many expert witnesses will already have experienced giving evidence remotely via videolink, this is unlikely to have been in situations where some or all of the other participants in the hearing are also communicating via video conferencing software.

The guidance gives basic practical advice on using remote platforms, such as what to wear, ensuring adequate internet connection and advice on GDPR issues etc.

However, it also gives more specific advice such as suggesting experts write their reports with screen display in mind and the use of 3 screens during the hearing, to ensure easy access to the trial bundle, the hearing itself and other documents without the need to constantly change the view.

Interestingly, the guidance also notes the following:

  • Processing information through online contact is hard and even more so at the moment, due to the stresses of lockdown;
  • Witnesses should accept that they are unlikely to have the same space in their “personal hard drive” to work at the same intensity as before;
  • Online communication is far more demanding and tiring;
  • When we meet face to face, we pick up on cues from others, we “read the room”, we receive body language, we gauge opinions of others, and we tend to process this information subconsciously so it guides is in our communication – but none of this is available online. Or, if any of it is, we find it exhausting to process.

These observations may be poignant for the profession, given the pre-COVID-19 push to promote the wider use of remote hearings. The fact that these observations have been put forward by a committee of such eminent and diverse membership is, it is submitted, very telling of the senior judiciaries’ views on a more widespread use of remote hearings in future.

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Updated Orders by Mr Justice Mostyn

Following the publication of the standard financial and enforcement orders by Mr Justice Mostyn in August 2019, there have been several updates.

In order to assist financial remedy practitioners, please find below a link to the latest financial remedy and enforcement orders

For those in children work, the up to date 29th July 2019 orders are found below

Mother successfully appeals removal of children under ICOs in Re N (Children) [2020] EWCA Civ 1070

A Mother, supported in her position by the Father and the Children’s Guardian, has successfully appealed an order that the children are removed from her care under pre-existing ICOs.

The context of the proceedings were that the LA initially applied for removal of the children to foster care under ICOs, but changed their interim position at the first hearing, agreeing that the children would return to their Mother under a working agreement. The LA then made 2 further applications to remove the children which were later withdrawn.

In the 3rd such application, the LA applied again for removal of the children to foster care, alleging that the parents had broken the working agreement (intending to prevent the children having unsupervised contact with their father), and the Exclusion Order which excluded him from the family home. The parents denied the allegations (of which there were, importantly, only 3) and opposed the application for removal.

The Hearing

The application was therefore set down for a one-day contested hearing to be heard remotely, with the added complication that the Mother required an interpreter, who was only available to interpret via the judge’s laptop. At paragraph 9 of the Court of Appeal’s judgment, it was noted that:

“The parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses. However, when adjourning the matter, the judge directed that the only witness to give evidence would be the social worker. The parents were directed to file sworn statements which the judge stated that she would take "at face value." She also made clear that she would need to have "robust" evidence from the social worker. She also noted that the Guardian, who was unable to attend the adjourned hearing, did not support the removal of the children on the basis of the evidence filed. We were told that the impression left on the parties was that the local authority's evidence was going to be scrutinised to see whether it was capable of sustaining its revised care plan.”

The parents filed statements as directed and the SW gave evidence as planned, which was for a total of 3.5 hours during the hearing, not limited to the three latest allegations which had been relied upon, but including allegations going back to December 2019 which the parents had not had the opportunity to respond to. As a result, the parents made repeated requests to be allowed to give oral evidence in response, which were not acceded to. Additionally, throughout the SW’s evidence the Mother was unable to give instructions to her Counsel as a result of her requiring an interpreter (assisting through the Judge’s own laptop).

Needless to say, the Judge sanctioned removal, taking into account the entire social work chronology and the “pattern of evidence” in the case suggesting that the parents had breached working agreements and court orders. The Mother immediately applied for permission to appeal and a stay, both of which were refused.

The Appeal

In allowing the appeal, Jackson LJ stated at paragraph 31 that:

“A court considering an interim application in proceedings concerning children is required to undertake a level of investigation that is appropriate to the issues that need to be decided and sufficient to enable it to make a fair and effective evaluation of the advantages and disadvantages for the children of making or not making the interim order. Acting within the framework of the relevant substantive and procedural law, the court has a wide and flexible discretion as to how its investigation and evaluation should be conducted at the interim stage. Depending upon the case and the issues to be decided, the decision may well be properly taken without hearing any oral evidence: the question will be whether it is necessary to hear some, probably limited, oral evidence to enable a fair and effective evaluation to be made.”

Jackson LJ went on to hold that “fairness required that in this situation she should hear from both the accuser and the accused” (§31).

It was also added that “the test for interim removal could not reasonably have been met on the evidence that the judge received” (§32).

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Updated: Practice Direction on Committal for Contempt of Court in Open Court

The Lord Chief Justice has issued an updated Practice Direction on committal for contempt of court in open court.

Except in relation to proceedings for contempt of court to which part 81 of the Civil Procedure Rules 1998 apply, the Practice Direction applies to all proceedings for committal for contempt of court, including contempt in the face of the court, whether arising under any statutory or inherent jurisdiction and, particularly, supplements the provisions relating to contempt of court, the Family Procedure Rules 2010, the Court of Protection Rules 2007, and the Criminal Procedure Rules 2014 and any related Practice Directions supplementing those various provisions.

Except to the extent that Part 81 of the Civil Procedure Rules applies, the Practice Direction  applies in all courts in England and Wales, including the Court of Protection, and supersedes the Practice Guidance: Committal for Contempt [2013] 1 WLR 1326, dated 3 May 2013; Practice Guidance (Committal Proceedings: Open Court) (No. 2) [2013] 1 WLR 1753, dated 4 June 2013; and President's Circular: Committals Family Court Practice 2024 at 2976, dated 2 August 2013.

For the Practice Direction, click here.

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Financial Remedy - Accepting and enforcing undertakings for the payment of money.

In a recent case, H had left the fmh, but continued to make certain payments to third parties.  W claimed mps.  H agreed to undertake to make certain payments to third parties and gave an undertaking to do the same.  The issue of quantum of mps was determined by the court.

It is important to remember to include the requirements of PD 33A with regard to any undertaking. 

PD 33A 2.2 contains the words which must be endorsed on the order and 33A 2.3 & 2.4 direct the signed statement the ‘undertaker’ must give, not necessarily in court in person, by endorsing on a copy of the court order or sent in letter form to the court.  This is important when it comes to enforcement.

To enforce a breach, form D50K is issued together with a statement of truth containing:-

  1. the amount due, showing how that amount is arrived at
  2. the method of enforcement sought or
  3. such method of enforcement as the court may consider appropriate

Most applications will chose the latter in which event rule 71.2 (6) and (7) of the CPR will apply 71.2(6) which requires a person to attend court and produce documents in his control described in the order, and answer questions on oath.  The order must contain a contempt warning.  An order to attend court must be personally served, unless the court otherwise directs (71.3)

FPR 5.1 is relevant because it stresses the importance of using the correct form:-

(1) Subject to rule 14.10(2) and (3), the forms referred to in a practice direction, shall be used in the cases to which they apply.

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Re Y – What are the Local Authority’s powers to change the nationality of children in care?

In the recent case of Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038, the court considered the nature of the LA’s corporate PR to make decisions relating to children in care.

Background

The proceedings concerned 2 children of Indian nationality who were born in the UK. The children were removed from their parents in 2015 and have lived in local authority foster care ever since. The LA’s original care plan was to place the children in adoptive placements, however, following difficulties in finding placements for the children, the LA made an application to discharge the placement orders in December 2018. Subsequently, the parents made an application to discharge the care orders. In the proceedings, the LA also sought to apply for British citizenship for the children.

In December 2019, HHJ Tucker discharged the placement orders but refused to discharge the care orders.

Appeal

The case then came to be heard for appeal following the parents’ appeal against the refusal to discharge the care orders. The parents also appealed against a single issue in respect of the LA’s powers to change the children’s nationalities.

Applying the dicta of King LJ in Re H (A child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, Jackson LJ outlined that s.33 Children Act “would allow a local authority to make profound and irreversible decisions about a child, up to and including consenting to the withdrawal of life-sustaining medical treatment” [13]. Of course, the Court of Appeal has held that such decisions would be of such magnitude that they should not be determined by a Local Authority without everyone who holds PR for a child having an opportunity to express their views to the court.

So, do decisions about nationality come under the same category of profound decisions as consenting to withdrawal of medical treatment?

The Court of Appeal held that decisions about a child’s immigration status will not always be of such magnitude that the LA cannot make those decisions alone. However, in cases “where a child may lose his or her original nationality… the issue is of a magnitude that cannot in my view be resolved by a local authority acting in reliance upon its general statutory powers.  In the absence of parental consent, it requires a decision of the High Court under its inherent jurisdiction” [18].

The Court further held that the issue of the children’s immigration status in this case should have been addressed within the existing care proceedings. The LA is able to take steps to regularise the children’s immigration status without making decisions about citizenship.

In deciding issues of citizenship, Jackson LJ noted that the following matters would need to be considered:

  • Firstly, the application should be made under the inherent jurisdiction, whether proceedings are ongoing or not.
  • There should be evidence before the court as to the effect on the children of gaining British citizenship, i.e. would this result in the loss of their Indian citizenship?
  • What are the disadvantages that might flow from the loss of a child’s nationality of birth?
  • Is it appropriate for the application to be made at that time, or should it be deferred until a more informed view can be expressed?

That information not being before the court, and the application not having been made under the inherent jurisdiction, the Court held that “s.33 CA 1989 does not entitle the local authority to apply for British citizenship for these children, in the face of parental opposition and where that may lead to a loss of their existing citizenship, without first obtaining approval from the High Court” [24]

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‘Self-employed’ hairdresser ruled an employee by the Manchester Employment Tribunal

This landmark case furthered the decision of Pimlico Plumbers v Smith [2018] UKSC 29 in deciding when a Claimant is a ‘worker’ or an ‘employee’.

The Claimant, Ms Gorman, a hairdresser at a Terence Paul salon in Manchester, brought an action against her former employers for holiday pay, notice pay and redundancy pay following the Salon’s closure in 2019.

The Claimant alleged that, although she had a contract as a self-employed hairdresser, the level of control exercise by her bosses over matters such as her working hours and conditions, and her pay (with her employer receiving a generous 67% of her takings) meant that she was effectively an employee.

The salon on the other hand claimed that the company’s self-employed hairdressers had control over the hours and days that they worked.

EJ Batten gave judgment in the Claimant’s favour in March with the reasons being released last week.

The decision could have far-reaching consequences for employees and workers in other industries were similar business models are utilised, whilst we still await the outcome of the Uber drivers appeal to the supreme court in a case with similar issues.

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Guidance issued by Mrs Justice Theis :Practice Guidance on Service of Part 4 Family Law Act 1996 applications, orders and notification to the police: Pilot Practice Direction 36U

Practice guidance has been issued by Mrs Justice Theis (Acting President of the Family Division) on Service of Part 4 Family Law Act 1996 applications, orders and notification to the police.  At the Family Procedure Rule Committees meeting in July 2020 they considered the issue of service arrangements for applications for orders, and orders made, under Part 4 Family Law Act 1996 (FLA 1996 orders), particularly in light of the temporary restrictions that were then in place around bailiff service because of the Coronavirus outbreak. Bailiff service resumed on 13 July 2020.
The Committee has concluded that a pilot Practice Direction should be put in place to make temporary modifications to Part 10 of the Family Procedure Rules 2010 (FPR) for a period of nine months. The resulting pilot Practice Direction 36U comes into force on 3 August 2020 and applies until 3 May 2021.

This is summarized as follows;

  • This Guidance should be considered alongside the modifications made to Part 10 FPR by PD36U.
  • The practical effect of the pilot is that it makes express provision clarifying that courts can use r6.35 FPR (which in turn applies r6.19 FPR) to direct service by a method other than personal service, where there is good reason to do so, and that courts can use r6.36 FPR to dispense with service in an appropriate case. For example, an order might be made dispensing with service of some orders enforceable by committal, of non-molestation orders, or occupation orders with a power of arrest attached, where a respondent has been present in court and provided with a copy of the order (albeit unsealed), with the order reciting why service is being dispensed with.
  • The intention is that personal service should remain the usual method for service of Part 4 FLA 1996 applications and orders, where appropriate.
  •  It will remain important, for the court to consider the impact of the method of service directed on the potential to enforce the order, whether by way of contempt or by way of prosecution under s42A FLA 1996, particularly if an alternative to personal service is directed – noting the need for the respondent to be aware of the order (section 42A(2) FLA) and the possibility of claiming a “reasonable excuse” under s42A(1) FLA 1996.
  • As regards notifying the police of an occupation order to which a power of arrest has been attached, or of a non-molestation order, the intention is that this should be done when the respondent has been served or otherwise informed of the terms of the order, whether by being present when the order was made or by telephone or otherwise as per r10.10(2) FPR including when the order is served by the court pursuant to r10.6(2).

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Re C and the dangers of remote hearings

Re C [2020] EWCA Civ 987 is a warning to practitioners and Judges alike. A hybrid hearing took place, where medical evidence was conducted by Zoom. The Appellant however gave evidence in the court building. During her second day of evidence, the Appellant stated she was unwell with back pain and blurred vision. On the third day, the Appellant complained of a cough. The Judge, with agreement of counsel sent the Appellant home, to continue her evidence remotely. The Judge rose for arrangements to be made. However, unbeknownst to the Judge, the remote link of the court room remained open. The Judge was overheard having a private conversation with her clerk, detailing her frustration and that the Appellant was trying 'every trick in the book' in order to avoid answering difficult questions.

An application was made by the Appellant for the Judge to recuse herself the following day. The Local Authority, father and Children's Guardian were each neutral. The Intervenor opposed the application. The Judge refused the application resulting in the appeal.

In the lead Judgment Lady Justice King commented “there is no suggestion that at any time prior to these comments the judge had demonstrated any bias or that she had conducted this difficult hearing with less than scrupulous fairness” (paragraph 25). 

The court recognised the significant pressure caused by Covid19 commenting that “what happened is undoubtedly a consequence of the tremendous pressure under which family judges at all levels find themselves at present. All over the country judges are trying, against powerful odds, to 'keep the show on the road' during the pandemic for the sake of the children involved. They are faced daily, as are the court staff and practitioners, with all the difficulties, technological and otherwise, presented by remote hearings generally and hybrid hearings in particular” (paragraph 27).

However, the appeal was allowed. Lady Justice King stated “We have considerable sympathy with the judge. We have, however, no hesitation in concluding that her comments did indeed fall on the wrong side of the line. The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant's evidence” (paragraph 30).

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Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 & the 123rd Practice Direction Update

Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 (coming into force on 23 August 2020)

The Statutory Instrument is being published via the Legislation website at: http://www.legislation.gov.uk. The on-line rules/web site will also be updated accordingly.

This follows The Civil Procedure (Amendment No.2) (Coronavirus) Rules 2020, which came into effect on 25 June 2020 and amended the Civil Procedure Rules 1998 Part 55 to provide for a stay of all possession proceedings brought under this Part and all enforcement proceedings by way of writ or warrant of possession which expires on 23 August 2020.

The Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 provides for a further amendment to CPR Part 55 to introduce a new temporary Practice Direction (Practice Direction 55C) for how claims under this Part (including appeals) are to proceed following the expiry of the stay provided for by rule 55.29. The provisions relate partly to the resumption of proceedings following lifting of the stay and partly to new cases issued after the stay has ceased.

123rd Practice Direction Update (coming into force on 23rd August 2020)

 The Master of the Rolls and the Lord Chancellor have signed the PD Update. 

In consequence of the Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020, above, a new Practice Direction, PD55C is introduced.  The main changes are:

  • To require a claimant who wishes to continue the proceedings after the expiry of the stay to provide a “reactivation notice” informing the court (and defendant) in writing of this (without which the case will remain dormant).
  • Where the claim includes non-payment of rent, that the particulars of claim set out what knowledge (if any) that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants
  • Suspends the standard period between issue of a claim form and hearing which would usually be not more than eight weeks.
  • Encourages a claimant to produce the full arrears history in advance rather than at the hearing.
  • Due to expire on the 28 March 2021

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Local Authority’s application to withdraw proceedings in GC v A County Council and Ors successfully appealed by the Children’s Guardian

The case of GC v A County Council and Ors [2020] EWCA Civ 848 concerned an application for care orders by a Local Authority in respect of a child who had suffered a suspected NAI. The injury was a small fracture and haematoma which the adult family members could not explain, and the child’s treating clinicians concluded that the injuries were inflicted non-accidentally.

The Facts

The application began with an EPO then an ICO with the Child being accommodated with the Mother in a Mother and Baby foster placement.

Expert reports were provided by Dr Saunders and Dr Rylance, following which the child’s grandparents disclosed an incident where the child had hit her head on a wooden play table, which they stated that they had disclosed at the hospital to the triage nurse. Dr Rylance concluded that this explanation was “a plausible cause” of the injury, whereas Dr Saunders described it as “highly unlikely but not impossible” as a cause of the injury. In essence, it could not be excluded as the cause of the injuries.

The LA subsequently applied for permission to withdraw the proceedings, which was granted by the Judge at first instance, who concluded that the LA had “insufficient evidence to cross the threshold”. The LA’s position was supported by the parents. The Guardian subsequently appealed.

The Appeal

The Guardian appealed against the decision stating that the judge was wrong to determine the issue of threshold criteria summarily without the benefit of hearing and testing the primary evidence, and that the judge was wrong to conclude that the expert evidence could not satisfy the threshold criteria.

The Court of Appeal clarified that there are two types of cases where the LA can seek permission to withdraw public law proceedings:

  1. Where the LA is unable to satisfy the threshold criteria
  2. Where it is possible for the LA to satisfy the criteria, considering whether withdrawal of the proceedings will promote or conflict with the child’s welfare, and considering the overriding objective of the FPR.

Ultimately, the Guardian’s position was that the Judge had wrongly categorised the case in the first type of application for withdrawal, and the Court of Appeal agreed.

Judgment

Baker LJ drew from his dicta in the earlier case of Re S (A Child) (Care Proceedings: Surrogacy) [2015] EWFC 99 at paragraph 124 that:

it is the judge, not an expert or group of experts, who has the responsibility of making the findings in family cases involving allegations of child abuse”.

Baker LJ concluded that this case was “a paradigm example of a case where a judge needs to hear all the evidence, to assess whether the lay witnesses' evidence is truthful, accurate and reliable, and evaluate the medical opinion evidence, tested in cross-examination, in the context of the totality of the evidence (paragraph 34)”.

The Court of Appeal concluded therefore that the fact finding hearing should go ahead and the LA’s application to withdraw should have been refused.

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No.18 Chambers : Approach to Civil litigation

Last Month in the Legal Gazette one of the commentators was quoted as saying that ‘ Business as usual ‘for Personal Injury and Civil work is a ‘fairly distant prospect’. Whether this is still true after the latest announcement from Lord Chief Justice and Lord Justice Lindblom   

(https://www.gov.uk/government/publications/court-and-tribunal-recovery-update-in-response-to-coronavirus) which details the recovery plan  for the court and tribunals in response to coronavirus remains to be seen. In this response the Lord Chancellor has agreed that sitting days should be used to their maximum in this period and courts should not hesitate in using fee-paid and deputy judges to fill any gaps which cannot be filled by the salaried judiciary  saying  “It is now all hands to the pump” . Even if this is the case what is for certain is that the back log that was there before the coronavirus hit has only increased;  the use and uncertainty of hearing done on’ paper’ are here to remain for a little time yet ; and the use of dispute resolution will rise (please click the attached link for details as to our remote dispute resolution innovation)

No.18 Chambers recognises the hurdles in providing high quality legal services for clients with the challenging times ahead which will make clients more hesitant in paying for legal representation in civil cases .To assist we remain committed to deliver exceptional advice, representation and resolution.  We base our service on being 'committed to our clients’, ‘serious about service’ and ‘always fair on fees’. Exceptional service is the corner stone of our ethos.

We believe in providing the same great service whether the case is small or high in value or claim. Lay clients deserve high standards of specialist advice and advocacy regardless of the value of their claim. We also know that our professional clients want our support and assistance to win cases and maximise damages for our clients in all types of cases.

In order to ensure this No.18 are delighted to offer eight schemes in order to assist in every eventuality (further details of each set out below);

In order to facilitate this, No.18 are delighted to introduce eight schemes:

  • CFAs with a 0% success fee on all PI and Clinical Negligence claims (subject to risk assessment)
  • Fixed fee’s for Small Claims/Fast Tracks/Infant Settlements and  Stage 3 hearings
  • No Win Low Fee agreements
  • Package Deals
  • Meet the insurance
  • Armed & Police Forces Discount
  • Emergency Services Discount
  • The Advice, Pleading and Support Package

 

Committed to a 0% Success fee on all PI and Clinical Negligence Cases

At No.18 we recognise that post Jackson, any success that is claimed by counsel has to come out of the client damages. Committed to maximizing the clients damages, No.18 are delighted to commit to a 0% success fee on post-April 2013 CFAs

Fixed fee’s Settlement advices

No.18 are delighted to commit to fixed fee’s on settlement advices, these can prove very useful when a hearing has been ordered to take place on paper or where parties are looking to enter into joint settlement negotiations

Fixed fee’s for Small Claims/Fast Track/ Infant Settlements and Stage 3 hearings

No.18 are delighted to commit to fixed fee’s for the below hearings;

Type of hearing

 

Small Claims (90 mins):                                                       £250 - £350*

 

Infant settlements:                                                               £175 - £250*

 

MOJ Stage 3  :                                                                          £250

 

*Depending on location

 

Fast Track :

 

Trials:   (as per the CPR Guidance)                                  Fast Track Trial Costs

 

No more than £3,000                                                                 £485

 

More than £3,000 but not more than £10,000                         £710

 

More than £10,000 but not more than £15,000                       £1070

 

More than £10,000 but not more than £15,000                       £1705

No Win Low Fee Agreements:

Where a case is not suitable to take under a traditional CFA, No.18 strives to offer a feasible alternative in order to make Litigation available to those who would otherwise not be able afford it. Individually calculated on a case to case basis Members undertake work in appropriate cases offering No Win, Low Fee. Not all cases are appropriate for No Win Low Fee Agreements and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations

Package Deals

No.18 are able to offer fee packages in relation to written advisory work, drafting, conferences & litigation (for example a global fee for both a conference and hearing or drafting and a hearing).

Meet the insurance

Where the matter is insurance backed, No.18 will do our utmost to work within the rates agreed with each insurance company and where there are agreed rates (either hourly or fixed) between another Chambers and that insurance firm we will also do our best to match the fees.  We are able to do both in most cases.

 

Armed & Police Forces Discount

We are delighted to  offer reduced fees (for matters that are paid privately) for members of the Armed & Police Forces and their dependants; please contact us for more information on our 10% discount for Armed Forces personnel and their dependants

Emergency Services Discount

We are delighted to offer reduced fees (for matters that are paid privately) for members of the Armed & Police Forces and their dependants, please contact us for more information on our 10% discount for Armed Forces personnel and their dependants

The Advice, Pleading and Support Package (Terms & Conditions Apply)

No.18  are delighted to  offer our new Advice, Pleading and Support package to clients in Small Claims  and Fast Track cases where costs are fixed in accordance with the provisions of the CPR: please see below for our table of fees that we offer to do so at a fixed price

Our Barristers will provide at your request:

  • Advice on liability, quantum and evidence;
  • Pleadings;
  • Telephone or (if needed) face to face conference with solicitor and client;
  • Assistance with ad hoc queries by phone or email where reasonably required.

Road Traffic Claims :

 

Item of Work  :                                                                £1,000 - £10,000                £10,000 - £25,000

                                                                                                                      

                  Advice on Liability or Quantum                    £150  -  £225                          £225 - £300

                                                

                 Advice on Liability and Quantum                  £200  -  £275                           £300 - £375

                                                

                 Particulars of Claim                                        £150  - £250                            £200 - £300

                                                

                 Defence/Reply/Part 18 Request                     £125  - £225                            £200 - £300

                              

Employer’s Liability/Public Liability:

 

 Item of Work :                                                               £1,000 - £10,000                £10,000 - £25,000

                 

                Advice on Liability or Quantum                      £175 - £275                           £250 - £350

                                                              

                Advice on Liability and Quantum                   £225   - £325                         £325 -£400

                                                               

                Particulars of Claim                                         £200   - £300                          £225 - £325

                                                

                Defence/Reply/Part 18 Request                      £150  - £250                           £200 - £300

James Vatcher appears on South today discussing the impact of Covid 19 on the Family Courts.

No.18 Are delighted to announce that James Vatcher appeared on South Today together with Eleanor Towsey of KJ Smith to discuss the impact of Covid 19 on the Family Courts. Click here to view a full copy of the interview by Sophia Seth.

Click here to view James Vatcher's full profile

Coronavirus: Separated Families and Contact with Children in Care FAQs

Coronavirus has continued to raise several questions in the context of Family Law. In particular, with children in separated families and also children in care. On 1 July 2020 the House of Commons Library published a useful report (‘the Report’) answering some of the most asked questions at the moment.

The report addresses 6 questions:

  1. Can children move between the homes of separated parents?
  2. How should parents comply with a court order for contact?
  3. How are child maintenance payments impacted?
  4. Can parents/relatives visit children in care/residential units?
  5. What are the alternatives to contact centres?
  6. What help and advice is available?

Below is a short summary of each question answered in the Report.

Can children move between the homes of separated parents?

This is a question that was raised at the outset of the pandemic in March. The guidance was clear that ‘where parents do not live in the same household, children under 18 can be moved between their parents’ homes’. However, the guidance was also clear that just because they could, does not mean they must. The Report states that this guidance has not been updated.

How should parents comply with a court order?

The Report gives a thorough background to the importance of complying with Court orders in more normal times and the law surrounding enforcement. However, it then repeats the guidance given by the President of the Family Division of what to do if parents cannot agree on arrangements in these times. The Report reiterates that the key message of the President’s guidance is that the spirit of the order should be followed, even if the letter of the Order can’t. That means there is an expectation that safe alternative arrangements for the Child should be made.

Helpfully, the Report also then addresses the issue in Scotland and Northern Ireland. The message and the expectations are similar in Scotland and Northern Ireland.

Maintenance Payments

Despite there being multiple ways in which maintenance can be paid, the Report focuses primarily on that of the Child Maintenance Service (CMS). It highlights the practices which the CMS are carrying out currently and what changes should be reported to the CMS, for example, job losses and/or a temporary suspension of income.

Children in Care/Residential Units

The Report addresses this question by highlighting the Local Authority’s duty under Section 34 of the Children Act 1989 to allow ‘reasonable contact’ between a child and their parents.

The Report goes on to discuss the Guidance for Children’s Social Care which was released by the Department of Education and updated on 1 July 2020. 

(Found here: https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-for-childrens-social-care-services/coronavirus-covid-19-guidance-for-local-authorities-on-childrens-social-care#residential-provision-childrens-homes-residential-schools-registered-as-childrens-homes-and-foster-care).

The expectation is that contact will continue, recognising that children may be at risk of being traumatised should they not have the contact they are used to with their relatives. Cases should be looked at individually and a range of factors need to be taken into account such as the social distancing guidance and the needs of the individual child. Should contact have to take place virtually, and it is accepted that it might have to, then social workers are encouraged to reassure children that this is only a temporary measure. Foster carers should also be consulted on how to balance facilitating contact with keeping safe, especially if they are shielding or considered vulnerable.

In relation to residential units, there should be suitable facilities within the home for contact to happen, although it is recognised that this may not be possible in the current circumstances. If that is not possible, there needs to be access to communication via telephone, video-link or other electronic method.

Contact Centres

The Report states that the National Association of Child Contact Centres issued guidance in late June. The guidance recommends that each contact centre makes their own decision about whether they can re-open their services but emphasises that ‘no centre should consider opening their services if they do not feel fully prepared or if doing so contravenes any local advice.’

For Help and Advice

The Report concludes with a list of services that can assist families should they need advice.

It therefore appears that Coronavirus continues to affect our family life and may well do for some time. For a copy of the full report, click here https://commonslibrary.parliament.uk/research-briefings/cbp-8901/

 

Read more about Family: Care & ChildrenFamily: Care & Children

Click here to view Rachel Chapman's full profile

Lancashire CC v M – The latest coronavirus adjournment application

This is the latest reported case concerning an application to adjourn a final hearing in care proceedings due to the coronavirus pandemic. The father, who made the application to adjourn, required the assistance of an intermediary to engage in the proceedings.

Facts

The background of the case is that in October 2018, the child was admitted to hospital and subsequently a number of injuries to the child were discovered.

The final hearing had been listed originally in March 2019, however, during the hearing, the father collapsed required an ambulance. The hearing was adjourned until October 2019 as a result, however the father was unable to participate in that hearing; a psychiatrist concluding that his depression rendered him vulnerable and that he required the assistance of an intermediary.

The final hearing then commenced on 16th March 2020, just one week before the UK introduced ‘lockdown’ in the UK. On 17th March, MacDonald J adjourned the final hearing part heard due to concerns about the parties’ and others’ safety amid the pandemic.

Attempts were then made in April 2020 for the case to be heard remotely, however the parents contended strongly that a remote hearing would not be appropriate in this case. The court then made arrangements for a socially distanced face-to-face hearing in May 2020 at the Manchester Civil Justice Centre, which had been assessed as being Covid secure.

The application to adjourn

The father’s application to adjourn the part-heard hearing was on the basis that he would not be able to properly participate in the hearing, nor would he be able to travel to Manchester to engage in the hearing.

The father’s position (supported by the mother) was that the court should adjourn the hearing until a fully face-to-face hearing could take place at Preston. The LA opposed any further delay to the final hearing.  

Judgment

MacDonald J at paragraphs 28-46 sets out the recent case law and other authoritative documentation dealing with coronavirus-related applications to adjourn proceedings. MacDonald J considered the application of Re A, Re P, and the President’s document, The Family Court and COVID-19: The Road Ahead, concluding that it is clear from the signposts in The Family Court and COVID-19: The Road Ahead that;

adjourning cases indefinitely or for a period of many months will not be a viable option and that adjourning a case to await a full face to face hearing is unlikely to be a proper course where an effective and fair remote and hybrid hearing can be held with steps taken to maximize the fairness of that remote or hybrid process” [46].

The court therefore did not accede to the father’s application, noting at [51] that “whilst C's welfare is not the court's paramount consideration in the current context, as is made clear in The Family Court and COVID-19: The Road Ahead the child's welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases”.

The full judgment is available at https://www.bailii.org/ew/cases/EWFC/HCJ/2020/43.html

Click here to view Sarah Barber's full profile

Observatory publishes briefing paper on The effects of digital contact on children's well-being: evidence from public and private law contexts

This rapid evidence review examines what is known about the implications of digital contact on the well-being of children who have been separated from their birth relatives. The review was commissioned following the implementation of social distancing measures to reduce the spread of COVID-19 in the UK in March 2020. Both reports can be found as attached or via the link https://www.nuffieldfjo.org.uk/resource/digital-contact-childrens-wellbeing

Cafcass publishes two new Protocols setting out how they are seeing children and families in person during the Covid-19 pandemic

Cafcass have published two new protocols setting out their approach to returning to in-person work with children and families and using Cafcass offices during the Covid-19 pandemic . The protocol on their return to in person work with children and families explains that they will be using both remote video technology and in-person visits to speak with children. Since the national lockdown began in March, they have been able to work  with children and their families using remote video and telephone meetings and for some this has been their preferred form of contact with them. The judgement about whether in-person or remote work is in the best interest of the child will be made by the Family Court Adviser who will make sure that the rationale is understood by the child and their family or carer.

Cafcass have said they understand that in many circumstances it is essential for a child to see a Family Court Adviser in-person, so whenever this takes place they will make sure that care is taken to protect the health and safety of everyone involved in the visit. Where a visit is judged to be necessary, a risk assessment will take place in accordance with Government guidance and will be overseen by the line manager for the adviser. Cafcass’s Family Court Advisers will work with the children and families who are to be seen in-person to decide which location is the safest and most appropriate. This may include their home, outside spaces such as parks or one of our offices.

Cafcass’s second protocol explains that they are going to start opening 17 Cafcass offices from 27 July so their Family Court Advisers can safely meet with children to understand their needs, wishes and feelings and to enable them to make recommendations to the family court.

Cafcass’s Chief Executive, Jacky Tiotto said:

“Understanding children’s wishes, feelings and hopes for the future is one of the most important duties we have. Speaking up for them in family proceedings and making recommendations to the court about their safety and best interest is equally important. The relationships we make with children, their families and carers help us to do this work well and it is always a priority to see them during our work together. We have been seeing children remotely since the period of national lockdown began in March and we have been able to continue to work effectively, receiving feedback that for some this is their preferred means of engaging with us. For others however, in-person contact is necessary for us to understand their lives, relationships, joys and worries. Being able to see children again with their families is a very special milestone for us. I am deeply grateful to my colleagues at Cafcass who have worked so hard to enable us to plan for this in the safest way possible and to others who will have the privilege of face to face contact once again.”

There is a recognition that they understand that some children cannot or do not want to see us remotely and also understand that for some children it is safer for them and in their best interest for us to see them in-person, and will therefore be able to use some of our offices to do this.

They are putting  many measures in place to make sure their open offices are safe to use for children, families and our staff. These  will include deeper cleaning arrangements, the provision of hand sanitiser to visitors, face coverings for all staff, full compliance with social distancing measures and limiting the number of people in each office at the same time.

Both Protocol are available below

These both follow the publication of our Cafcass Protocol for Attending Court on 29 May.

No.18’s Approach to Employment & Discrimination

Damage Based Agreements:

At No.18 we recognise that new methods of funding need to be found in order to bring claims. No.18 are delighted to offer Damage Based Agreements as a solution. We are committed to assess cases as to whether Damage Based Agreements are an appropriate recourse of funding for a particular lay client in order to allow them purse their claim.

Conditional Fee agreement: (0% Success Guaranteed)

 

Members undertake work under a variety of conditional fee agreements (CFAs) and in appropriate cases offer 0% success fee. Not all cases are appropriate for CFAs and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations.

No Win Low Fee Agreements:

 

Where a case is not suitable to take under a traditional CFA, No.18 strives to offer a feasible alternative in order to make litigation available to those who would otherwise not be able afford it. Individually calculated on a case to case basis members undertake work in appropriate cases offering No Win, Low Fee. Not all cases are appropriate for No Win Low Fee Agreements and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations.

Package Deals:

No.18 are able to offer fee packages in relation to written advisory work, drafting, conferences & litigation (for example a global fee for both a conference and hearing or drafting and a hearing).

Meet the Insurance:

Where the matter is insurance backed, No.18 will do our utmost to work within the rates agreed with each insurance company and where there are agreed rates (either hourly or fixed) between another Chambers and that insurance firm we will also do our best to match the fees.  We are able to do both in most cases.

Armed  & Police Forces Discount:

 

We are delighted to offer reduced fees (for matters that are paid privately) for members of the Armed & Police Forces and their dependants, please contact us for more information on our 10% discount for Armed & Police Forces personnel and their dependants.

Emergency Services Discount:

 

We are delighted to offer reduced fees (for matters that are paid privately ) for members of the emergency services and their dependants, please contact us for more information on our 10% discount for emergency services personnel and their dependants.

Low income “ tailored fee’s:

We recognise that the economic pressures on some clients require flexibility on fees in order to ensure that they can secure access to high quality legal representation. We can in most instances provide tailored fees for clients on a low income or who would previously have been eligible for legal aid to assist.

Merit, Advice, Drafting and Support Package:

No.18  are delighted to  offer our new Merits Advice, Drafting and Support package: please see below for our table of fees offering a guidance as to price. In addition No.18 can offer various fee schemes to help meet your lay client budget as detailed below the table of fees.

Our Barristers will provide at your request:

  • Merit assessment & Advice;
  • Drafting ET1s and ET3s;
  • Telephone or (if needed) face to face conference with solicitor and client;
  • Assistance with ad hoc queries by phone or email where reasonably required.
  • Undertake Settlement agreements (to include liaising with the client) at the agreed fixed rate with the employer

 

Unfair Dismissal/Constructive Claims :

 
     

Item of Work

1 - 10 years call

10 + years call

                                                                                                                      

 

Merits Assessment 

£200- £450

£350 - £700

                                                

   

              Initial Advice 

£300 -£550

£450 -£900

                                                

   

              Drafting ET1  

£250 -£500

£450 -£800

                                                

   

              Drafting ET3 

£250 -£500

£400 -£800

                              

   

Discrimination Claims:

   
     

 Item of Work

1 - 10 years call

10+  Years call

                                                                                                                      

 

Merits Assessment 

£300 - £550

£450 -£800

                                                

   

            Initial Advice  

£400 -£650

£500 -£1000

                                                

   

            Drafting ET1   

£350 -£600

£450 £900

                                                

   

           Drafting ET3 

£350 - £600

£450- £900

                                                

LOCKDOWN SOLUTIONS

 

No18 continues to be committed to providing the highest level of service, client care, advocacy and advice by ensuring that the needs, concerns and interests of clients are always paramount support by over 50 years of clerking expertise. Just in case you have missed them some of our initiatives over the past few months have been:

More detail on each of these can be found by clicking the attached link.

Stop press : Courts and tribunals recovery released

Throughout the COVID-19 pandemic every possible effort has been made to offer continued access to justice whilst ensuring the safety of judges, magistrates, staff, and those attending court and tribunal buildings. The collective efforts of all those involved have allowed us to deal with a greater proportion of our caseload than many similar jurisdictions elsewhere in the world.

During the pandemic, significant and urgent changes have been made to the way we work. These changes have included the separation of the estate into buildings which have been open, staffed and suspended, thus allowing for scarce resources to be focused on the most urgent work. The impact of the virus also meant that very quick steps were taken to improve our access to, and use of, technology.

Although we have seen a period characterised by tremendous and urgent challenges, the experience has been of value. We have learnt very quickly where technology can improve the experience, and where it is less effective. We have learnt much about the physical limitations of our courts and tribunals buildings and where we need to use our court estate more imaginatively.

While COVID-19 will remain with us for some time we are now at a point where the focus is shifting to recovery, applying what we have learned from what has been, in effect, the largest justice sector pilot ever conducted in this country. We have been working closely with HMCTS to that end and they have published a plan for how this will be progressed.

The plan sets out how HMCTS intends to move forward. Importantly, the Lord Chancellor has agreed that sitting days should be used to their maximum in this period and we should not hesitate in using fee-paid and deputy judges to fill any gaps which cannot be filled by the salaried judiciary. It is now all hands to the pump.

This recovery plan sets out details for reopening venues. You may have seen that the majority of courts and tribunal buildings are set to reopen by the end of June, with the remainder opening as soon as it is safe for them to do so in line with public health guidance; the safety of all court users remains a priority. Local leadership judges will also be looking to list creatively and to stagger and extend sitting times, with the potential to start hearings at different times of day and to sit at weekends.

We will see more audio and video hearings, including in new ad hoc court and tribunals venues, supported by more staff, equipped with new IT equipment which will allow them better to support the judiciary with remote hearings. The full functionality of the Cloud Video Platform (CVP) will be rolled-out across Criminal, Civil, Family and Tribunals.

As we move into this next phase, which will enable more cases to be heard, and heard safely, we are grateful for the continued efforts being made to administer justice and keep our justice system running.

The Lord Burnett of Maldon
Lord Chief Justice

Lord Justice Lindblom
Vice-President of Tribunals

Decisions on Pensions in financial remedies cases: Wait for one and three come along at once

There have been three recent cases on the treatment of pensions in financial remedy cases; one decided by HHJ Hess and two by HHJ Robinson.  Although not Court of Appeal, it is interesting to see what was said.  HHJ Hess is joint author of Pensions on Divorce and co-chair of A Guide to the Treatment of Pensions on Divorce: The Pension Advisory Group Report 2019

The cases emphasise needs and the approach to pensions.  I will not recite the entire facts of each case.  

I concentrate on HHJ Hess’s judgement and what he said concerning pensions.   HHJ Hess’s judgement is meticulous in approach and it is difficult to compress or precise in a short article what he said, so I have repeated verbatim much of what was said.

W v H : HHJ Hess 24th February 2020 Swindon

 

This was a first instance decision and not an appeal.  H had a significant pension, there was a PODE.  Regarding the pensions division the judge stated this:-

At para 59,  ‘ … I shall give consideration to the opinions on these (pension) issues set out in some detail in “A Guide to the Treatment of Pensions on Divorce: The Pension Advisory Group Report” (July 2019 …  (it) has the support of the Family Justice Council and the President of the Family Division and should, in my view, be treated as being prima facie persuasive in the areas it has analysed, although of course susceptible to judicial oversight and criticism.

Then at para 60 (i) the judge identified three issues: 

‘The first issue is whether it is right for the court, in dividing pensions with a view to promoting equality, to target capital equality or to target the promotion of equal incomes.’

In answering that the judge said:

‘There is no ‘one size fits all’ answer to this question.’

‘There are, however, scenarios where a simple division of CEs may well not represent a fair solution.’

‘The PAG report expresses its view on this as follows:-

 “In a needs-based case, in particular where there is a significant Defined Benefit pension involved, the appropriate analysis will often be to divide the pensions separately from the other assets, based on an equalisation of incomes approach, such approach often requiring expert evidence from a PODE.” (page 11)’

The judge expressed his decision in this way:

‘In my view the facts of the present case (the ages of the parties, the size and largely defined benefit nature of the pension funds, the relative paucity of non-pension assets) place it firmly in that category of case where the fair and equal outcome is to identify, as a starting point anyway, the pension sharing orders which would bring about equal incomes at a specified time in the future.’

(ii) ‘The second issue is whether it is right for the court, in dividing pensions with a view to promoting equality, to exclude a portion of the member spouse’s pension if it was earned prior to the marriage (or seamless pre-marital cohabitation).’

In answering that the judge said:

‘There has undoubtedly been an established practice in some courts considering the divisions of pension, regardless of needs issues, to make a straight line deduction from the CE of a relevant pension fund by reference to a fraction where the numerator is the number of years of the marriage (including seamless pre-marital cohabitation) and the denominator is the number of years over which the pension fund in question was accrued, and to include in its calculations and deliberations only the reduced amount of the CE.’

‘In my view this approach carries with it significant risks of unfairness as the mathematics of the present case undoubtedly illustrate.’

‘In one sense the exclusion of the pre-marital portion of the pension is no more than, in modern parlance, the identification of non-matrimonial property. In other words the pre-marital portion of the pension is non-matrimonial property whilst the remainder is matrimonial property. Where the pension was wholly accrued prior to the marriage then it is easy to identify it as non-matrimonial property: see, for example, King J (as she then was) in GS v L [2013] 1 FLR 300 and Mostyn J in WM v HM [2017] EWFC 25. The apportionment exercise seems a logical extension of this and pension funds are rarely subject to the ‘mingling’ which often occurs in relation to cash assets.'

‘In a sharing case the exclusion of the pre-marital portion of a pension might well be a legitimate exercise in principle, although, as identified in M v M [2015] EWFC B63, the court might retain an element of discretion as to the level of sharing.’

‘In a needs case, the approach needs to be treated with more caution. Where the pensions concerned represent the sole or main mechanism for meeting the post-retirement income needs of both parties, and where the income produced by the pension funds after division falls short of producing a surplus over needs, then it is difficult to see that excluding any portion of the pension has justification. In the words of Lord Nicholls in White v White [2000] UKHL 54: “in the ordinary course, this factor”..i.e. the factor that the property concerned is non-matrimonial…“can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property”.’

It is important to appreciate that in needs-based cases, just as is the case with non-pension assets, the timing and source of the pension saving is not necessarily relevant - that is to say, a pension-holder cannot necessarily ring-fence pension assets if, and to the extent that, those assets were accrued prior to the marriage or following the parties’ separation.’

‘It is quite unlikely that pension funds will themselves will take the case outside the category of a needs case.’

‘Further, in many cases, and the present case is a good example, the straight-line methodology of calculation, though simpler and easier to apply in practice, conceals an unfairness in that the value of a defined benefit pension scheme based on final salary does not accrue on a straight line basis.’

(iii)  ‘The third issue is the extent to which the court should disaggregate the pensions in the case and promote a discrete and equal division of the pensions as opposed to attempting to execute an offset against other assets.’

In answering that the judge said:

‘The orthodox view, encouraged by Thorpe LJ in Martin-Dye v Martin-Dye [2006] 2 FLR 901, is that pensions should be dealt with separately and discretely from other capital assets and with a view to their post-retirement income producing qualities. The PAG report offers a similar view: “try, if possible, to deal with each asset class in isolation and avoid offsetting…a discrete solution which equalises pensions by pension sharing orders and which equalises non-pension assets by lump sum or property adjustment orders” (page 35).’

‘It is undoubtedly the case, however, that many litigants choose to blur the difference between the categories and engage, to a greater or lesser extent, in an offsetting exercise. It needs to be borne in mind, however, that mixing categories of assets runs the risk of unfairness in that valuation issues become very difficult and, absent agreement, it may be unfair anyway to burden one party with non-realisable assets while the other party has access to realisable assets.’

‘I have decided that I should divide the pensions in this case with a view to making pension sharing orders which have the effect of providing for the parties equal incomes at a specified time in the future.’

  1. HHJ Robinson decided two cases, RH v SV 9th March 2020, Medway, which was a limited appeal against a PSO and in KM v CV 25th February 2020, Medway, the DDJ (with respect possibly inexperienced in financial matters) valued the pension at date of separation, which HHJ Robinson disagreed with, but this appealed from decision was before the Report of the Pensions Advisory Group July 2019.  I mention these two cases because HHJ Robinson also cited portions of the report, and endorsed a needs approach to pensions.
  2. Of course each case turns on its own facts and as a broad proposition the older the parties and the nearer to retirement age they are the greater the focus will be on pension needs.  Where the parties are young and each has the opportunity to build up a pension pot before retirement, then the less pensions will be within the financial needs of each party in the foreseeable future (s25(2)(b)) or, perhaps, the lost benefit by reason of the dissolution of the marriage (s25(2)(b)).

Click here to view Gary Fawcett's full profile

Lockdown Solutions

No18 continues to be committed to providing the highest level of service, client care, advocacy and advice by ensuring that the needs, concerns and interests of clients are always paramount support by over 50 years of clerking expertise. Just in case you have missed them some of our initiatives over the past few months have been:

Updated version of the Remote Family Access Court released

The latest updated version of the Remote Family Access Court has been published. Mr Justice MacDonald has highlighted the following updates in it:

  1. Hybrid Hearings are now covered in detail at para [3.2.3.1] and a Protocol for Hybrid Hearings is set out at Appendix 3
  2. A new hybrid hearing template order has been added at Appendix 5.
  3. The Protocols for ‘Remote’ and ‘Fully Attended’ hearings at Appendix 1 and 2 have been fully revised and updated.
  4. The section on ‘Judicial Discretion as to Format of Hearings’ at para [3.4.1] has been fully updated in light of recent case law.
  5. Details are provided at para [5.4.3] of the sources of IT support for the judiciary, including dedicated support for CVP.
  6. Further details of new support available to litigants in person are set out at para [5.19.7] onwards.
  7. More detail on the use of CVP is set out at para 7.3 onwards.”

Click here for the full document.

Hybrid hearings and Hybrid instructions

Following the latest reports and policy statements it is clear that the use of Hybrid hearings and actual attendance at court is only going to get greater in the coming months. As the legal market continues to adapt to this new world clients are also evolving and want to make their money go further will there also be a rise in Hybrid instructions i.e. unbundling.

A little known fact is that in some circumstances solicitors no longer need to be on record. The Law Society recognises that solicitors may act for a client on a limited retainer (‘unbundling’).  This service is often offered so that the lay client can save money. 

It is likely that in most cases where counsel is instructed by a solicitor who is not on the record, the reason for this an unbundled service is being provided . There is nothing which prohibits the offering, as part of the unbundled package, an agreement to instruct counsel on the client’s behalf. A very good reason why a lay client would want to use the knowledge and experience of a solicitor to select suitable counsel and ensure s/he is properly briefed.

The Law Society’s guidance makes it clear that there is nothing to stop a solicitor on an unbundled retainer.

‘The essence of unbundling in its purest form is that the case remains client-led so the solicitor does not necessarily accept service of documents, does not send out correspondence in the firm's name or otherwise communicate with third parties, does not incur disbursements and does not go on the court record.’

This seems to acknowledge, correctly, that there is nothing prohibiting such a solicitor instructing counsel to represent a lay client at court.  In fact the guidance says that when providing an unbundled service the solicitor should not go on the court record and gives pointers as to the type of case which may and may not be suitable for unbundling.

But what about the BSB ?

A barrister can provide reserved legal activities (including advocacy at court) if they are  instructed by a professional client……... There is nothing in the BSB Handbook or the Legal Services Act which requires that the person instructing the barrister to attend court must have conduct of the litigation.  Therefore, absent any special factors which might require counsel to refuse the instruction, unbundling seems to be a perfectly acceptable way forward in some circumstances.

And the Money ?

Even though you may not be on record I’m afraid , still the best protocol is ‘ monies on account’ for any disbursements i/.e fees.

STOP PRESS: Re S (Vulnerable Parent: Intermediary) – Court of Appeal considers the impact of remote and hybrid hearings on vulnerable parents

This case concerns an appeal against a case management decision in care proceedings whereby the lower court refused an application by a parent with a learning disability for an intermediary assessment and for the appointment of an intermediary.

In what is seemingly the first reported appeal against a case management decision which specifically deals with the impact of hybrid and remote hearings on vulnerable parents in care proceedings, Jackson LJ concluded that an intermediary could help the mother in this case to “negotiate the process of being questioned remotely and to participate in the hearing to the fullest possible extent” (§29).

Facts

In this case, the Mother’s request for an intermediary followed 2 psychological reports into her cognitive functioning (which is in the 1st percentile), and in the second report by Dr Hale, outlining that she would benefit from intermediary assistance.

The court denied the Mother’s application, holding that it was satisfied with the participation directions recommended in the first psychological report and that the professionals assessing Mother had concluded that it would be impossible for her to care for the child. Therefore it was held that an intermediary assessment was not necessary.

Appeal

The Mother appealed on 3 grounds:

  1. The court failed to apply the correct test by confusing the status of a vulnerable party with that of a protected party.
  2. The court impermissibly disregarded the opinion of Dr Hale.
  3. The Judge’s evaluative process was wrong and she reached a decision that was not open to her.

Summarising the rules on the approach to be taken by the court in determining such applications, at §16 Jackson LJ states:

The rules require the court to ask itself these questions:

(1) Is a party or a witness a vulnerable person, having regard to the matters set out in Rule 3A7 and PD3AA? – Rule 3A.3.

(2) Is a party's participation in the proceedings (other than by way of giving evidence) likely to be diminished by reason of vulnerability and, if so, is it necessary to make one or more participation directions? – Rule 3A.4.

(3) Is the quality of evidence given by a party or witness likely to be diminished by reason of vulnerability and, if so, is it is necessary to make one or more participation directions? – Rule 3A.5.”

In upholding the mother’s third ground of appeal, Jackson LJ commented at §26 that:

It is central to my consideration of this appeal that there is to be a hybrid hearing in this case. The hearing will involve quite complex information being considered through more than one medium of communication. Professionals who are having to adapt to these demands have the advantage of repeated exposure to a range of possible formats. Lay parties do not generally have that advantage, but it is to their needs that the court must adapt. Where a party or a witness has a learning disability, the adaptation needs to be sufficient to ensure that they are genuinely able to participate effectively in the hearing, both in and out of the witness box.”

Analysis

It is clear from this judgment that particular consideration has to be given to the ability of vulnerable parties to engage in proceedings that are likely to involve hybrid or remote hearings, particularly if the party is to give evidence with some involvement of remote attendance, for example by the other advocates.

Jackson LJ adds finally at §32 that “the outcome of this appeal does not imply that all parties or witnesses with a similar profile to this mother will require an intermediary, or that intermediaries are likely to be required in all cases where a parent with a learning difficulty may be taking part in a remote or hybrid hearing. All decisions of this kind are case-specific, and must be reached by applying the rules and guidance to the actual circumstances of the individual case”.

Whilst this decision is not a ‘catch-all’, it does helpfully outline what the court will need to consider when faced with applications of this sort, and particularly the considerations that come with the possibility of remote or hybrid final hearings in care proceedings.

Click here to view Sarah Barber's full profile

Useful Guide: Lay Clients’ Guide to Remote hearings

Though I cannot profess to have written the attached document (see attached), I thought it might be of use to share.  This guide has been produced by the FLBA working group in order to assist represented parents when they are attending a remote court hearing whether on-line or by telephone. It is a very useful guide for lay clients and provides guidance as to the use of various platforms including to Skype/CVP/Microsoft teams/zoom and telephone hearings together with a  practical guidance.

Mark Windebank

Senior Clerk

Recommendations to achieve best practice in the child protection and family justice systems: Special guardianship orders

This week has seen the Public law Working Group publish the final report on special guardianship orders (click here to view the reoprt) .The President of the family division commented ;

‘Since its addition to the canon of orders that are available to the Family Court in 2005, the role of a Special Guardianship Order has changed and developed. It is plain that SGO’s have a useful role to play, and are the right order to make in the right case; but which are the ‘right’ cases, how are professionals and the courts to spot them and how can the system best support any special guardians who are appointed?

 

For a considerable time those working in Family Justice have called for consistent and clear practice guidance on SGO’s. Now, through the work of the Public Law Working Group, the Family Justice Council and others, comprehensive and authoritative guidance has been produced. I am immensely appreciative of the work that I know has been done by many over the past year to produce this guidance and I have no hesitation in publishing it now with my complete endorsement.’

 

He further comments that;

 

‘This text is what many professionals in the system have been waiting for; the practice guidance should now be applied and used in every case where a SGO is an option in the hope that, as the authors say, it will improve the outcome for children and special guardians’

General Guidance on pdf bundles

The guidance has been provided by Sir Andrew McFarlane (President of the Family Division) (click here to view guidance) , Lady Justice Thirlwall (Senior Presiding Judge) & Mr Justice Mann (Judge in charge of Live Services) in order to achieve a level of useful consistency in the provision of PDF bundles for use by judges in hearings. In their note (as attached ) it is made clear that it is not immutable, and should give way to any specific directions by particular courts or the requirements of particular judges in particular cases.

Their overriding objective is that , as a guide to the construction of useful bundles this  should provide judges with bundles which are as useful as they can be made. Though comes with words of warning that they are expecting compliance  with all or most of these requirements, and If they cannot there should be explanation as to why.

The President of the Family Division has made two amendments to his Guidance on Allocation and Gatekeeping

The President of the Family Division has made two amendments to his Guidance on Allocation and Gatekeeping for Care, Supervision and other Proceedings under Part IV of the Children Act 1989 (Public Law) 2014.

These changes are unrelated, one has been made via an addendum and the other through re-issuing the supporting Schedule to this Guidance.

The addendum provides a temporary amendment to the Guidance, which ceases effect on 30 October 2020.

The other amendment is a permanent addition to the Schedule, and therefore a new version of this document has been issued. These documents are provided as attached

Mark Windebank

Senior Clerk

Hybrid Hearing’ with remote attendance of advocates is not a breach of Article 6 – Re C (Children: Covid-19: Representation)

The Judgment of the Court of Appeal in Re C (Children: Covid-19: Representation) [2020] EWCA Civ 734 (available here), considers an appeal by a mother against the decision of Williams J ([2020] EWHC 1233 (Fam)) to list a Fact Finding Hearing in care proceedings for a ‘hybrid hearing’.

In his leading judgment, Jackson LJ dismisses the appeal, citing extensively from the judgment of the lower court which decided that the hybrid hearing was fair in accordance with Art. 6 ECHR.

Case on appeal

The case involved expert evidence regarding the death of one of the children in hospital from suspected cocaine ingestion, which the court heard remotely. The court considered whether the lay parties’ evidence could also be heard remotely, finding that it could not and that a hybrid hearing best balanced the Art. 6 rights of the Mother to a fair trial, and the Art 6 rights of the other parties to a fair trial within a reasonable time.

Williams J in his judgment considered the case of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583, which practitioners will remember for its detailed guidance on the conduct of remote and hybrid hearings.

It is of note that in this case, the Mother’s leading counsel was unable to participate in an attended hearing due to her need to shield a vulnerable person at home from Covid-19. The Court of Appeal commented that, quite properly, Mother’s leading counsel had offered to return her brief should the hearing become an attended hearing. Mother however did not wish to change her representation.

The decision of Williams J was appealed on the grounds that he had failed to carry out an assessment of the proceedings, the seriousness of what was at stake for the Mother, whether the arrangements for a hybrid hearing satisfied Mother’s right to an adversarial trial, or the importance of the appearance of a fair trial and whether the hybrid hearing respects a fair balance between the parties.

The appeal also asserted that the judge had not carried out a proper judicial evaluation of the competing Art.6 rights of the parties.

Judgment

In dismissing the appeal, Jackson LJ at [23] of the Court of Appeal’s judgment outlined 7 points relating to the fairness of a trial, drawing on precedents from the UK and the ECtHR:

  1. Fairness is case-specific and is to be assessed in relation to the proceedings in their entirety: Ankherl v Switzerland (2001) 32 EHRR 1 at [38].
  1. There must be protection not only from actual unfairness but also from the risk of unfairness: Kanda v Government of the Federation of Malaya [1962] AC 322 (PC) at p.5.
  1. The right of access to the court must be effective, so that the individual has the opportunity to address all material that might affect the court's decision and is placed in a position to call evidence and to cross-examine: Mantovanelli v France (1997) 24 EHRR 370 at [36].
  1. The importance attached to the welfare of the child must not prevent a parent being able effectively to participate in the decision-making process: L v UK [2002] 2 FLR 322 at 332.
  1. The principle of equality of arms entails a reasonable opportunity to present one's case, including one's evidence, in a way that does not place one at a substantial disadvantage to one's opponent: Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213 at [33].
  1. The administration of justice requires not only fairness but the appearance of fairness: R v Leicester City Justices ex p Barrow [1991] 2 QB 260; P, C & S v UK [2002] 2 FLR 631 at [91]. However, the misgivings of individuals with regard to the fairness of the proceedings must be capable of being objectively justified: Kraska v Switzerland (1994) 18 EHRR 188 at [32].
  1. The determination must be made within a reasonable time: Article 6 itself.

Finally, at [25], the court outlines that “as time goes on a careful evaluation of the kind made in this case is no more likely to be the stuff of a successful appeal than any other case management decision”.

Analysis

This case appears to ‘shut the door’ on appeals such as this where the court has clearly considered the fairness of any such proposed hybrid hearing in the midst of Covid-19.  That decision is a case management decision as any other, and the first instance court will have a wide discretion in making decisions which take into account fairness and the welfare of the children. It therefore seems likely that, where judges give appropriately reasoned judgments in respect of such case management issues, the appellate courts will be unwilling to intervene.

Click here to view Sarah Barber's full profile

The Rise of the Hybrid hearings – here to help with the next adjustment.!

Following the latest report by Sir Andrew McFarlane (as attached and helpfully summarised by Sarah Barber) , the update from HMCTS opening a further 16 courts this week, the policy position of Cafcass  (a report of which can be accessed clicking on the attached hyperlink) together with the various Judgements such as Re: P in relation to remote hearings, it is clear that the use of Hybrid hearings and actual attendance at court is only going to get greater in the coming months.

With this in mind No.18 Chambers are here to help to adapt and adjust once again to what will become another ‘new’ normal.  In reassurance, No.18 remains committed to providing advocacy whether remote or in physical attendance at court.  

No.18 Chambers remain committed to continue to offer to set up and host conferences, advocates meetings and hearings using a variety of virtual methods at our disposal to ensure the smooth running of cases for which can be found on our website.

No18 continues to be committed to providing the highest level of service, client care, advocacy and advice by ensuring that the needs, concerns and interests of clients are always paramount support by over 50 years of clerking expertise. Just in case you have missed them some of our initiatives over the past few months have been:

More detail on each of these can be found by clicking here.

STOP PRESS: Latest Report from the President of the Family Division anticipates Family Courts fully reopening by July

The latest report from MacFarlane J addresses the way forward in light of what is now expected to be significant social distancing measures remaining in place in the court systems in England and Wales until the end of 2020 or even Spring 2021.

In this report, the PFD draws on the Nuffield Family Justice Observatory Report and outlines changes to previous guidance regarding the fairness of remote hearings. The key piece of guidance to change is that hearings that were previously likely to be unsuitable for remote hearings, for example final hearings including oral evidence of lay parties, are now to be considered for the so-called ‘hybrid hearing’. The guidance recognises that such hearings are still unlikely to be unsuitable for ‘fully remote hearings’.

It is also made clear that active thought must be given to lay parties being able to engage in the proceedings from a location other than at home.

Throughout June, the PFD explains that Family Courts will be gradually reopening so that by early July, the Family Courts should be fully open for public use, however the impact of social distancing will remain for the foreseeable future.

It is also noted that the Family Courts may well be required to use the facilities of the Criminal and Civil courts and tribunals to ensure that social distancing can take place.

The report also addresses the use of remote platforms, stating that Zoom, whilst one of the most effective platforms, is not currently supported by the judiciary and HMCTS. The Cloud Video Platform is the preferred option by HMCTS for hearings where video attendance is required.

It is also anticipated that there will be a rise in the use of fee-paid judges to increase the resources of the Family Court in dealing with this changing landscape, and ensuring that the judges who need to remain working remotely can do so, and to deal with the current high volume of work that the Family Courts are seeing at present.

Advice for professionals is that:

  1. Adjourning cases indefinitely will not be an option, and
  2. Clear, focused and very robust case management will be vital.

The report also sets out a Covid-19 Case Management Checklist to help parties narrow the issues and determine the appropriate format of the hearing.

The overriding point to take from this is that these measures can be expected to continue until at least December 2020 and it will likely be many months before we can return to ‘normal’ court hearings. Practitioners will therefore be adapting now to the increased use of hybrid hearings as we expect courts to reopen at a reduced capacity later this month and into early July.

Click here to view Sarah Barber's full profile

Further detail to the Coronavirus Job Retention Scheme

On Friday 29th May 2020 the Chancellor's announcement sought to add flesh to the bones of the Government's extension to the Coronavirus Job Retention Scheme, the extension from the initial cessation of support at the end of May being first set out in the Treasury's Direction on 22nd May 2020, which sought to provide a gradually fading level of support from August to October 2020.

In June and July, employers have been told they will continue to receive normal levels of support.

From August, employers will have to pay NI and pension contributions. 

September sees the 80% payment of wages drop to 70% with employers making up the 10% with the remaining 20% difference remaining optional to employers to top up or not.

The Government will then reduce the level of support form 70% to 60% with employers required to contribute 20% and the balance remaining optional for employers to top up.

From July until the end of the Scheme, employers will be able to bring staff back to work whilst furloughed, the Chancellor giving the example of a part-time return. The detail is unclear as to the degree of flexibility being afforded (whether simply limited to part time return and if this could extend to partial-days) and what impact this has on the level of support

Click here to view Barnaby Large's full profile

Revised Standard Orders in respect of Financial Remedies Cases

This week, Mr Justice Mostyn, in agreement with the President of the Family Division, has amended, revised and re-issued standard order numbers 1.1, 1.2 (Orders in relation to Financial Directions), 2.1 (Financial Remedy Orders) and 2.2 (Orders under Children Act 1989, Schedule 1) of the Standard Financial and Enforcement Orders.

The amendments are similar in each order and focus on the parties’ filing of Form H’s, including costs incurred to date as well as future costs. It also intends to record if parties have failed to file this information. It is now anticipated that there will be two recitals to the order, one to record whether the Applicant has filed relevant cost documentation and one to record whether the Respondent has filed relevant cost documentation.

Such amendments intend to reflect the amendments within the Family Procedure Rules, Rule 9.27(8) and (9). Rule 9.27(8) and (9) now require the Court to record any cost estimates filed as well as any failure to file cost estimates.

The amendments to the Family Procedure Rules as well as the revised standard orders take effect from the 6 July 2020.

A link to the announcement by Mr Justice Mostyn, as well as links to the revised orders number 1.1, 1.2, 2.1 and 2.2 can be found here: https://www.judiciary.uk/announcements/standard-orders-announcement-by-mr-justice-mostyn/  

Click here to view Rachel Chapman's full profile

Stop Press :CAFCASS policy position for stage 1 recovery from lockdown - 1 June - 1 September 2020 - "The Hybrid Hearing"

On 1st June 2020 CAFCASS issued its policy position on CAFCASS Officers attendance at court.  This policy document outlines the steps to keep CAFCASS FCAs safe during the pandemic. 

Lee Young – barrister at No. 18 Chambers asks the rhetorical question: Could  this policy or some of it assist all family advocates contemplating the live attendance at court during this next phase of lockdown easing measures, in order to ensure that we are all kept safe and away from the risk of catching the Coronavirus?

FPR requires CG’s to attend final hearings and authors of section 7 reports to attend if directed to.  CAFCASS starting point is that “we attend hearings remotely unless there is a compelling reason to attend in person, even where others are attending in person.”

The court can direct that attendance may be remote and the decision whether to hold a remote hearing is one for the judge.  This means that judges have a wide discretion about how to manage hearings.  There are of course a number of recent authorities setting out guidance to the to assist the judge with the decision about whether it is appropriate to hold a hearing remotely:

See - Re P (A Child Remote Hearing) [2020] EWFC – a decision of the President of the Family Division; Guidance issued by the President on 27 March 2020

  • The primary purpose of the family justice system is to enable the courts to deal with cases justly
  • The overriding objective – part of which is to ensure parties are on an equal footing
  • Pushing forward to achieve remote hearings must not be at the expense of a fair and just process
  • A range of factors are likely to be in play – each potentially compelling but also potentially at odds with each other
  • The decision to proceed of not may turn on the category of case or seriousness of the decision but also upon other factors that are idiosyncratic of the particular case itself, such as local facilities, the available technology, the personalities and expectations of the key family members
  • No two cases may be the same – the decision has to be left to the judge in each case rather than making the subject of binding national guidance

Cases that have had to be adjourned to an unspecified future date include cases of factitious illness which the require the court to observe the reaction of the witnesses very carefully to the allegations being put – see [2020] EWCA 1086 (Fam) 5 May 2020 – a decision of the High Court Mrs Justice Lievan.

In this regard, the  CAFCASS Policy document – states:

“The Court of Appeal has emphasised the need in some cases to have parties in court to assess their demeanour  when giving evidence.  The same does not apply to professional witnesses and there would need to be a compelling reason during the pandemic and this consequential recovery phase for the FCA to attend.  There is the potential for a hearing to take place with the parties in person together with their advocates while other professionals attend remotely.  This type hybrid hearing is likely to be in operation for the foreseeable future.

The Children’s Guardian would in most cases expect to be present throughout a final hearing but if circumstances do not allow this to be feasible, the court will be informed, and agreement reached as to which parts of the hearing the guardian can attend in addition to the giving of evidence.

There will, however, be times where it is necessary for FCAs to be present in court and these will be discussed between the FCA and the line manager.  In these cases we must ensure that the arrangements are as safe as possible and that any vulnerabilities of the staff member have been considered.

Before agreeing attendance, we expect HMCTS to provide confirmation that appropriate measures identified in the protocols are in place, that it is possible to maintain a safe distance between parties, their advocates and professional witnesses, and that there is sufficient space within communal areas.  HMCTS should be asked to provide confirmation of these specific arrangements before the court convenes any live hearings so that there is an assurance that safety has been addressed and the court has followed government guidance on safe working environments.

Where an FCA is asked to attend court in person to give evidence, the following aspects must be considered:

  • Travelling to court should be by car, walking or cycling as a first option.  If the FCA must travel on public transport and they are not prohibited by recorded health vulnerabilities, they must abide by the government guidelines of wearing a face covering.
  • If the FCA has family commitments as a result of the restrictions or phased recovery from COVID-19 that means they are unable to work outside the home, such as school-age children who cannot attend school or younger children whose child care arrangements have been suspended, they will not be expected to attend in person and this needs to be discussed with the court.
  • Any FCA in a vulnerable category as defined by the Department of Health or any member of their family in that category which places them at additional risk will not be able to attend court in person until the government guidelines change in respect of shielding. 

The manager should discuss the above with the FCA and the court, being careful not to disclose personal information about the FCA to the court without their consent.  The court will need to be told if the FCA is unable to attend, with remote attendance offered is this is an appropriate alternative. 

If the court directs the attendance in the form of a court order, and in circumstances where the direction would put the FCA or others at risk, then Cafcass will challenge the order with the assistance of Cafcass Legal if necessary. 

Cafcass will make every effort to avoid adjournments when the only reason is the pandemic and will, together with the court, attempt to ensure that decisions for children can be reached taking account of the need for fairness in the process.

Evidence

Our tools for working with children have been received positively and support detailed and thorough remote assessments.  FCAs need to be confident that the work they have undertaken allows them to provide enough evidence to the court to support their recommendations, and it is for the court to decide if any further, or alternative direct work, is required.  This is a case-specific issue determined by the characteristics of the child and family as well as the physical circumstances.  The court must balance the need to avoid delay with consideration of the adequacy of the evidence and it will be a matter of professional judgment for the FCA to assess whether they have enough information to justify their conclusion.

Click on the link below for access to the full CAFCASS  policy document.


https://documentcloud.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3Aefc41330-3880-4b0d-931a-de5eb58b89fa#pageNum=1

Click here to view Lee Young's full profile

STOP PRESS – Committee stage of the Domestic Abuse Bill to be completed this month

The ‘Committee Stage’ of the Draft Domestic Abuse Bill (found here - https://publications.parliament.uk/pa/bills/cbill/58-01/0096/cbill_2019-20210096_en_1.htm) is due to complete later this month, with the Committee’s report scheduled to be published on 25th June 2020.

The Bill will be subject to scrutiny by MPs during the Committee Stage and amendments to the Bill as it is currently may still be made.

The Bill passed its second reading in Parliament on 28th April 2020.

Click here to view Sarah Barber's full profile

New guidance for employers and furloughed workers regarding holiday entitlement

The guidance published on 13th May 2020, found here (https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19), outlines the entitlement of furloughed workers to take annual leave, and employers’ duties regarding annual leave entitlement during the coronavirus crisis.

For employers, the government has clarified that:

-           They can require workers to take annual leave provided they give notice of twice the amount of annual leave that the wish the worker to take (for example, for 1 day of annual leave, 2 days of notice should be given)

-           They can also cancel a worker’s holiday provided they give notice which is the same length as the planned holiday (for example, a 7 day holiday would mean that 7 days of notice has to be given)

For furloughed workers, their statutory holiday entitlement of 5.6 weeks per annum still applies.

In respect of holiday pay, it is explained that employers should pay full holiday pay while workers are on furlough. If the amount paid is above the rate of pay the worker receives on furlough, employers should pay the difference. Employers are still able to claim the 80% grant from the government, as taking holiday does not break the furlough period.

Click here to view Sarah Barber's full profile

Wrongful dismissal and length of service

Is an employee's length of service relevant to the question of whether they have been wrongfully dismissed?

No, held the EAT in East Coast Main Line Company Ltd v Cameron.

The Claimant had been employed by the Respondent since 1981, most recently in the role of shunter. In late 2015, during a night-shift, the Claimant had authorised the departure of a train. A driver, standing between that train and his own, had been 'brushed' by the departing train in what was found to be a serious safety incident.

An investigation concluded the Claimant had failed to carry out adequate safety checks. The Claimant was subsequently summarily dismissed on 11th April 2016. The Claimant brought discrimination, unfair dismissal and wrongful dismissal claims. Following a final hearing and an appeal, a subsequent final hearing found the Claimant had been wrongfully dismissed. In doing so it placed weight on the fact that the Claimant had been employed for a considerable length of time. The Respondent appealed.

The EAT, substituting a decision that the dismissal was not wrongful held, amongst other things, that the tribunal was wrong in law to rely on the Claimant's length of service to determine whether he had been wrongfully dismissed.

Click here to view Barnaby Large's full profile

Stop Press :Rishi Sunak confirms new Treasury Direction giving further clarity on the Coronavirus Job Retention Scheme available on 20th May 2020

Contact during the Coronavirus pandemic: A reluctance from the Courts?

Coronavirus continues to affect all areas of our lives. In particular, there appears to be increasing issues in relation to the exercise of parental responsibility when it comes to child contact. What should parents do when one parent does not consider that contact is safe and for the child/children to move between parents’ homes?

This question appears to be the subject of applications which are being made to the local family courts. One Court considered this matter without a hearing and made an order which sent out a clear message.

Within the order, the judge explicitly set out as recitals the Guidance on Compliance with Family Court Child Arrangement Orders issued by the President of the Family Division, Sir Andrew McFarlane on 24 March 2020. As a reminder, this guidance emphasises that ‘parental responsibility lies with child’s parents and not the court’ and that ‘the expectation is that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child’. Children can be moved between homes, but ‘it does not, however, mean that children must be moved between homes.’

As a result of the guidance, the Court gave one further recital, considering that those who have parental responsibility for a child will exercise it in a way that is to comply with the Stay at Home guidance and will pay attention to the exception of children moving between parents’ homes.

It was then ordered that the hearing which had been currently listed for a future date was ‘cancelled’ (as opposed to simply adjourned). Cafcass were still required to do their safeguarding checks, which needed to include whether a hearing was needed or whether alternative methods of dispute resolution could be considered.

The order also gave provision for parties to pursue the original application if they wished, but with the requirement that they explain why the application needed to be heard by the Court and the steps taken to try and achieve some agreement as expected by the Guidance. If no application was made, then the matter would be dismissed with no order made.

This case indicates that the Courts are currently reluctant to get involved and adjudicate upon matters relating to contact within the Coronavirus pandemic. The current stance of the Court appears to be that those with parental responsibility should be exercising that responsibility in a sensible way in line with the current guidance and is encouraging parents to work together to reach a sensible agreement that is suitable for them and in the best interests of their children.

Click here to view Rachel Chapman's full profile

Newsflash : Court of Appeal Decision in re Debenhams Retail Ltd (in Administration)

On 6th May the Court of Appeal (Bean and Richards LJJ) in re Debenhams Retail Ltd (in Administration)[1] handed down what appears to be the first appeal on the Coronavirus Job Retention Scheme (‘CJRS’) dismissing the Administrators’ appeal, holding that if they paid sums received under CJRS to furloughed employees they will be taken to have ‘adopted’ their contracts for the purposes of Insolvency law.

Like the matter of re Carluccio’s[2], the case concerned the interplay of CJRS and "adoption" of employment contracts by administrators.

The issues to be determined was whether –

  1. by paying only amounts received under CJRS to staff while they are "furloughed" and not permitted to work for the furloughing Company, the administrators of that company had ‘adopted’ their employment contracts; and
  2. whether by ‘adopting’ them, payment of salary and other amounts including sick and holiday pay were ‘expenses of the administration’ receiving ‘super-priority’.

The Facts

Debenhams Retail Limited (‘DRL’), part of a well-known retail business, which employed 15,550 staff, found itself forced to close its stores on 25 March 2020 following the Government’s imposition of  lockdown measures to combat the spread of the Covid-19 infection. DRL gave written notice to around 13,000 employees, informing that they were being placed on furlough under CJRS with the first few days.

Administrators were subsequently appointed who consented to management continuing operations so as to ensure trading resumed once lockdown ended. As such the sought to maintain staff furlough status.

The administrators wrote to furloughed staff on 10th April seeking express consent. The vast majority replied with around four expressly rejecting proposals and ten failing to reply.

Simultaneously they applied for directions from the High Court, seeking declaration that none of the furloughed contacts would be ‘adopted’ by the administrators.

The effect of their contracts being adopted would mean after 14 days from appointment –

  • liability is charged on and out of the property the administrators had custody & control over immediately before the cessation of their employment;
  • the liability would rank ahead of administrators’ remuneration/expenses, any amounts secured by flouting charge as well as unsecured creditors as such ‘super-priority’; and
  • liability is restricted to ‘wages or salary’ which includes holiday and sick pay.[3]

In relation to excess holiday pay alone[4] this was said to generate a liability of £1.28 million.

The difficulty for the Court was both that ‘adoption’ is not defined in the 1986 Act and the Powdrill case (that provides authority as to definition)[5] concerned three companies whose relevant employees had all performed services for each employer after the relevant 14 day period, something which could not be said for the furloughed employees of DRL.

Briefly, Powdrill provided for adoption if –

  • words or conduct on the part of the administrator;
  • objectively constructed evidenced election on their part;
  • construed election to treat liabilities arising under the employment contract as enjoying ‘super-priority

On 15th April the case came before Trowner J. Following re Carluccio’s, he refused the declaration sought, finding furloughed staff contracts were most probably adopted (but not declaring this as he had not heard from the employees). The administrators appealed.

The administrators alleged whilst payment of wages normally led to inference of election to treat contracts as having super-priority, re Carluccio’s was wrongly decided in that it did not take account of source of the payment as being from HMRC not the employer.

The Decision

The Court, dismissing the appeal, held adoption was not concerned with accepting but continuing employment and that whether there was an election to continue was an objective question of fact in each case (the administrator’s actual intent was not expressed as a factor).

The Court held the administrators of DRL on payment of wages under the furlough scheme he is ‘continuing’ the employment contract –

  1. The payments would be made under terms of their contracts (albeit amended by the terms of CJRS), reflected in the tax position of both the employees and DRL;
  2. The employees consenting to the furlough arrangements were agreeing to be bound by their employment contracts (including duties of loyalty) save only as to actual work;
  • The purpose of the administrators’ actions were to rescuing DRL for the benefit of the creditors and the purposes of the administration;
  1. While the requirement not to provide work was a relevant factor it was not decisive was balanced against the continued performance of the employment contract by both sides

 

[1] [2020] EWCA Civ 600 https://www.bailii.org/ew/cases/EWCA/Civ/2020/600.html

[2]  re Carluccio’s Ltd [2020] EWHC 886 (Ch) https://www.bailii.org/ew/cases/EWHC/Ch/2020/886.html

[3] Sch.B1 Para. 99(3), (4), (5)(a) & (6) Insolvency Act 1986

[4] HMRC’s updated Employer Guidance had by this time clarified that holiday pay is payable in full even when
   taken during furlough, so an employer would be liable for the balance above the 80% paid by the Government.

[5] see Powdrill v Watson [1994] ICR 395 (concerning ‘Paramount Airways Ltd’, ‘Leyland DAF Ltd’ & ‘Ferranti
   International Plc’) 

Click here to view Barnaby Large's full profile

What is a private FDR?

At No.18 Chambers, we pride ourselves on being forward thinking, especially in this brave new world that we face at the present. We have developed one of the strongest and diverse local Family and Civil teams, at both senior and junior levels. In our continuing commitment to overcome these challenges, we are delighted to announce our new range of non-court based ways of resolving disagreements which can often result in saving money, time and most importantly reducing the stress levels that can often be associated with litigation. The court-based has arena has an excellent this history at bringing disputes to an end quickly and efficiently. We are confident these out of court solutions can equal this.

So what is a Private FDR ? Ian Wheaton (2002) was interviewed by Liza Gatrell of Biscoes solicitors to explain all click here to watch the video.

Our other remote solutions are as follows;

  • Private Dispute Resolution / Early Neutral Evaluation
  • Dispute Resolution Suite or Round table meetings/joint settlement conferences (Matrimonial Finance, Children, Civil, Employment)
  • Merits, Advice, Drafting and Support Package:

If you have any questions or queries surrounding these, or the services or the work we undertake please do not hesitate to contact our friendly and efficient administrative team, either Mark Windebank (Senior Clerk) or Dan Fantham (First Junior Clerk) on 023 80 736812 or contact us at clerks@no18chambers.com

Click here to view Ian Wheaton's full profile

President of the Family Division welcomes Nuffield report into effectiveness of remote hearings during COVID-19

For the full report please click here

No.18 Chambers : New Merits, Advice, Drafting and Support package

With firms under tremendous pressure with staff being on furlough time is precious , with this in mind No.18 are delighted to offer our new Merits, Advice, Drafting and Support package for all types of Civil, Employment and Family cases. No.18 can offer various fee schemes to help meet your lay clients budget and always happy to give a fixed price on a case to case basis.

Our Barristers will provide at your request (but not limited to):

  • Merits assessment (on liability, quantum and evidence);
  • Advice’s as to Settlements,
  • Opinions e.g.; barder Appeals ?
  • Settling Pleadings
  • Drafting Applications
  • Settling  Defence’s
  • Drafting Claim forms/ET1’s & ET’3
  • Telephone or (if needed) virtual conference with solicitor and client;
  • Assistance with ad hoc queries by phone or email where reasonably required.

If you have any questions or queries surrounding chambers, its services or the work we undertake please do not hesitate to contact our friendly and efficient administrative team, either Mark Windebank (Senior Clerk) or Dan Fantham (First Junior Clerk) on 023 80 736812 or contact us at clerks@no18chambers.com

No.18 Chambers : Here to help

No.18 Chambers : Here to help

In these ever changing times where we are being asked to adapt No.18 Chambers are here to help facilitate this. With over 50 years of clerking experience  and extremely experienced members,  No18 continues to be committed to providing the highest level of service, client care, advocacy and advice by ensuring that the needs, concerns and interests of clients are always paramount.

Following on from the President’s Guidance (click here to download), as well as the very helpful documents compiled by Mr Justice Mostyn and Mr Justice MacDonald No.18 Chambers  are utilising technology to ensure the  smooth running of cases.  With this in mind we are able to operate our services remotely using a variety of methods at our disposal including telephone calls, email, Zoom, Skype for Business & Microsoft Teams.

Hearings :

For any form of Court hearings, No.18 is able to offer a virtual attendance via Zoom, Skype for Business & Microsoft Teams. For those who are unaware, these platforms can include:

  • The Court for the hearing itself
  • Separate conference rooms for the parties and their teams; and
  • corridor for counsel’s discussions.

All participants will sent the joining details in advance of the session and there is no need for any software or apps to be downloaded in advance: as it will be generated automatically when participants click on the access links which are provided.

 

Conferences  and advocates’ meetings

We are able to attend telephone and video conferences, which again does not require any of the participants to download any software in advance, as above.

Whether you have opted for a video or telephone conference with counsel,  joining details will need to be obtained before the conference is due to commence.

With the new technology it makes no court destination too far.  Please do get in touch with us to discuss your preferred methods of communication at his challenging time.  If you have any questions about remote access and working then please do get in touch and we will be happy to assist you.

Further useful Numbers are also below in order to be able to organise  telephone hearings

BT Legal Conferencing : 0800 028 4194

Legal Connect : 0800 953 0405

Kidatu : 0800 279 4594

The Coronavirus Job Retention Scheme - in its final form?

The afternoon of 15th April 2020 saw the Treasury issue a direction to HRMC, in accordance with its powers derived from ss.71 and 76 Coronavirus Act 2020, to operate the Coronavirus Job Retention Scheme (‘CJRS’), which is to be applied in terms of the Schedule attached to the direction.

This article (as attached) seeks to try to distil the Schedule and several adjustments which have followed.

Paragraphs 2.1 – 2.5 set out the purpose of CJRS. Unsurprisingly, it is to allow employers to claim reimbursement for ‘the costs of employment’ they would otherwise incur for ‘furloughed employees’ arising from the ‘health, social and economic emergency’ created by ‘coronavirus and coronavirus disease.

For the full updated analysis for Barnaby Large please click here.

Click here to view Barnaby Large's full profile

No.18 Resolution : An Alternative to the Court Room Scenario

At No.18 Chambers, we pride ourselves on being forward thinking, especially in this brave new world that we face at the present. We have developed one of the strongest and diverse local Family and Civil teams, at both senior and junior levels. In our continuing commitment to overcome these challenges, we are delighted to announce our new range of non-court based ways of resolving disagreements which can often result in saving money, time and most importantly reducing the stress levels that can often be associated with litigation.

The court-based has arena has an excellent this history at bringing disputes to an end quickly and efficiently. We are confident these out of court solutions can equal this.

Our remote solutions are as follows;

  • Private FDR/ Early Neutral Evaluation
  • Private Dispute Resolution / Early Neutral Evaluation
  • Dispute Resolution Suite or Round table meetings/joint settlement conferences (Matrimonial Finance, Children, Civil, Employment)
  • Merits, Advice, Drafting and Support Package:

News flash : Coronavirus Job Retention Scheme – An Update

On the 27th March Barnaby provided an article ‘The Coronavirus Job Retention Scheme – What is it and How Does it Work’ following publication by HMRC of details of the CJRS scheme.

HMRC have on 9th April since updated the guidance clarifying its position on a number of issues set out below and again on 15th April 2020 varying the qualifying date by which staff need to be employed on or before is now the 19th March no 28th February 2020, bringing a host of further individuals into the Scheme who obtained employment between those dates.

Click here for a summary of the 9th April amendments and click here for the full report for those who wish to read it full.

Click here to view Barnaby Large's full profile

Two-week rapid consultation on remote hearings in the Family Court launched

The President of the Family Division, Sir Andrew McFarlane is pleased to announce the commencement of a two-week rapid consultation on the use of remote hearings in the family justice system, starting today (Tuesday 14 April 2020).

This research project will be undertaken by the Nuffield Family Justice Observatory, an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of family justice system.

The Nuffield Family Justice Observatory (NFJO) will seek to gather evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers.

The NFJO will also convene virtual meetings and events to discuss the issues over the coming two weeks and draw together findings from existing research of relevance.

The consultation will run until 28 April, enabling the President to receive a summary of the responses by end April, with a view to issuing guidance in early May.

The consultation can be accessed via the following link: https://www.nuffieldfjo.org.uk/news/rapid-consultation-remote-hearings

News Flash: Coronavirus Scheme published in full

The coronavirus scheme has been published in full – please clcick here to view the document . Barnaby Large will be reviewing  it and a short appraise of the highlight are to follow

Click here to view Barnaby Large's full profile

Stop Press :Vicarious liability – clarity from the Supreme Court

In a decision released on 1 April 2020, the Supreme Court in WM Morrisons Supermarkets PLC v Various Claimants [2020] EWCA Civ 2339 has provided much needed clarity on the circumstances in which an employer is vicariously liable for the conduct of its employees.

Facts

Mr Skelton, a senior employee at Morrisons, leaked personal data of 98, 9981 fellow employees online and to three national newspapers. Prior to leaking this information, Mr Skelton was subject to disciplinary proceedings. Following his disciplinary proceedings, Mr Skelton harboured a grudge against Morrisons which led to his disclosure.

A group action was brought against Morrisons for damages for ‘distress, anxiety, upset and damage’. The claim was predicated on the basis that Morrisons was vicariously liable for breaching its statutory duty under section 4(4) of the DPA, misuse of private information and breach of confidence. The question under consideration was whether Morrisons should be held vicariously liable for Mr Skelton’s conduct.

Decision

The Supreme Court ruled that both the court at first instance and Court of Appeal had misunderstood the principles relating to vicarious liability (at [31]) in various respects:

(1) The lower courts were wrong to conclude that Mr Skelton’s disclosure fell within his functions or field of activities.

(2) The Court of Appeal placed too much emphasis on the five factors listed in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 (at [35]). Those factors were concerned with whether the relationship between an employer and employee was ‘akin to employment’, not whether the conduct was so connected with the employment that vicarious liability ought to be imposed.

(3) A temporal or causal connection does not in itself satisfy the ‘close connection’ test.

(4) The reason why Mr Skelton acted wrongfully was not irrelevant. Conversely, it was an important consideration i.e. whether he was acting on his employer’s business or for purely personal reasons (‘a frolic of his own’).

In determining whether Morrisons should be held vicariously liable for the actions of Mr Skelton, the Supreme Court clarified that the question is whether Mr Skelton’s disclosure was ‘so closely connected with acts he was authorised to do that, for the purposes of the liability of his employer to third parties, his wrongful disclosure may fairly and properly be regarded as done by him while acting in the ordinary course of his employment’. In considering Mr Skelton’s employment and conduct, the Supreme Court decided that it would not be fair or proper to regard Mr Skelton’s conduct as falling within his ordinary employment.

The Supreme Court reiterated the distinction between conduct where an employee engages (however misguidedly) in furthering his employer’s business, and cases where the employee engages in conduct on a ‘frolic of his own’. In WM Morrisons, the Supreme Court found that Mr Skelton was pursuing a personal vendetta against his employer for earlier disciplinary proceedings – he was not engaged in furthering his employer’s business. His conduct was not so closely connected with acts which he was authorised to do.

This is a significant decision. In circumstances where an employee has leaked data with the specific intention to harm their employer, the employer may not be held vicariously liable. 

Francis will be covering this case and the topic of vicarious liability in greater detail at No 18 Chambers civil litigation seminar.

Click here to view Francis Payne's full profile

News Flash 'New Guidance on Domestic Violence Injunctions issued by the Government’

On 3 April 2020, the government issued the guidance ‘Applying for a domestic violence (Family Law Act) injunction for unrepresented applicants’. Below is a 6 step process from the Legal aid Handbook.

These are the steps:

  1. Fill in an application form to apply for a Family Law Act injunction.
  2. You will also need to provide a signed witness statement with your name and date, and include a statement of truth.
  3. If you don’t want the respondent to know your contact details, you must also fill in form C8 and the court must have contact details for both you and the respondent in order to set up a telephone or video hearing.
  4. Please check whether your local family court is open. If your local court is currently closed, contact the nearest open or staffed court. Telephone and email contact details can be found on court and tribunal finder by entering your post code.
  5. The court will contact you with hearing arrangements, by email if you have an email address.
  6. Most injunction hearings will take place by telephone. Court staff will arrange a telephone conference and notify you and the respondent, unless the hearing is without notice to the respondent. In some circumstances, the judge may make an order on paper without a hearing. If you are unable to make a telephone or video hearing, for example, because the respondent is in the same property, include this information in your email to the court.
  7. The court will also arrange for the injunction application and any order made to be delivered to the respondent.

For the full article as published in the legal aid handbook news forum please click the attached link https://legalaidhandbook.com/2020/04/06/new-guidance-on-domestic-violence-injunctions/

Click here to view Robin Shane's full profile

118th Practice Direction Update to the Civil Procedure Rules – Coronavirus Pandemic related

New Practice Direction 51ZA Extension of Time Limits and Clarification of PD51Y

The Master of the Rolls and the Lord Chancellor have signed Practice Direction 51ZA (PD) principally in relation to the extension of time limits during the Coronavirus pandemic.

The PD is effective immediately ie from today, 2nd April 2020

The main changes effected by this PD are:

  • Allows the parties to agree an extension up to 56 days without formally notifying the court (rather than the current 28 days), so long as that does not put a hearing date at risk;
  • Any extension of more than 56 days needs to be agreed by the court;
  • The court is required to take into account the impact of the pandemic in considering such applications;
  • The PD also amends the audio and video hearing PD 51Y (the 116th PD Update) by making clear that a person seeking permission to listen to or view a recording of a hearing may do so by request and is not required to make a formal application under the CPR.
  • The PD ceases to have effect on 30th October 2020.

The position will remain under review.

For the avoidance of doubt, this PD does not change the operation of the provisions of PD51Z (set out under the 117th PD Update on 27 March 2020) which provides for the 90 days stay concerning possession proceedings.

Further information

Practice Direction – Extension of Time 51ZA(PD)

No.18 Chambers Launches Family Law Emergency helpline

No.18 understands that family law disputes can arise at any time. Whether you need telephone advice or a court order, we can provide you with this assistance outside of normal working hours. Therefore No.18 are delighted to announce our new Family Law Emergency Helpline.

Our dedicated and experienced barristers, supported by over 50 years of clerking experience, are committed to providing the highest level of service, client care, advocacy and advice. We will continue to ensure the needs, concerns and interests of clients are always paramount. In light of the ever changing times all of our services can be offered via telephone and virtual platforms.

It is always possible to obtain emergency help.

No.18’s barristers regularly act on behalf of both applicants and respondents in urgent applications out of court hours in our areas of work, having particular experience in relation to Public law hearings.

The types of emergency hearings No.18 Chambers deal with

 

Public Law Care: where you are seeking or defending an emergency application. 

 

Private law Children:, where you are seeking a return of a child or seeking an emergency specific issue order

 

Matrimonial finance :  where you need to freeze the assets

 

Domestic Violence : an ex-parte application for a non-molestation order

 

We always have barristers on standby

We will always have members of chambers available to deal with emergency applications. Our clerks will advise who is available and suitable for your needs. It is advisable to call us asap to ensure we are put on notice, particularly if a specific barrister is requested, but we are always available if this is not possible.

How to contact someone

During office hours please call +44 (0)23 8073 6812 

Outside of office hours please call:

Mark Windebank on +44 (0)77 4898 4852 in the first instance; alternatively, contact Dan Fantham on +44 (0)77 8026 0581

What do you need to do?

The barrister instructed will be able to advise you how to contact the court to set up a hearing with the duty judge and the documents that will be needed. The most pressing matter is the evidence. You should ensure, so far as possible, that detailed instructions are taken from the client.

Stop Press :Contact and Coronavirus

In the last 2 weeks every single order I have drafted in private law Children Act proceedings has been impacted by the current COVID-19 outbreak. This has ranged from litigants failing to attend due to self-isolation; difficulties effecting personal service of documents; contact centres closing and parents refusing to adhere to contact arrangements on public health grounds.

A major concern for parents has been whether or not direct contact should continue in light of the recent ‘lock-down’. Thankfully, the President of the Family Division has issued some clear, sensible and pragmatic guidance on compliance with Child Arrangements Order (‘CAO’):

https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/

The President highlights the government guidance which parallels the ‘Stay At Home Rules’ issued on 23rd March 2020, which state that:

“Where parents do not live in the same household, children under 18 can move between their parents’ homes”.

But whilst this is a clear exception to the ‘stay at home’ requirement, this does not mean children must move between homes. Parents are encouraged to exercise their sensible judgement in the current circumstances, including taking into consideration the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

The President goes on to suggest that the best way to deal with these difficulties will be: “for parents to communicate with one another about their worries, and what they think would be a good, practical solution.”

The more seasoned and sceptical practitioners among us will immediately recognise the potential irony in this statement. If parents were capable of communicating with one another about sensitive issues, such as their own worries and concerns, they probably wouldn’t have had to seek a CAO in the first place!

In any case, the President suggests that in the absence of any agreement on whether to vary the arrangements set out in a CAO, a parent who: “is sufficiently concerned that complying with the CAO arrangements would be against the current [public health advice], that parent may exercise their parental responsibility and vary the arrangements to one they consider to be safe”. If necessary, the court can consider whether any potential breach of the CAO was “reasonable and sensible in the light of the official advice and the Stay At Home Rules in place at the time, together with any specific evidence relating to the child or family”.

However, whilst Coronavirus restrictions may cause the letter of a court order to be varied, the President makes it clear that the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child. Professionals should therefore advise clients accordingly.

In these truly unprecedented times it is reassuring to witness some great acts of humanity, empathy and togetherness. Many people have been able to put their differences aside and instead focus on the real issues we face as a species. However, there are also those that haven’t been able to do so… and we may all have some of those people as clients. There are those that insist direct contact should go ahead regardless of the risk to their child or their wider family, and there are those who use the Stay At Home Rules as an excuse to wilfully obstruct contact. It will of course be down to us to guide our clients through these difficult issues.

We have all no doubt experienced another significant problem caused by the outbreak of COVID-19: the closure of contact centres. This will clearly affect large numbers of children and parents who will be not be able to have contact, potentially for a long time.

However, there is a solution at hand!!! With their usual impressive ingenuity and foresight, Chances Gives Choices contact centre are now offering to facilitate video contact throughout the ‘lock-down’ period!

This contact will be facilitated via video conferencing platforms in very much the same way that we currently conduct court hearings. The contact centre will organise the contact session and will dial-up the parties. Contact centre staff will supervise the entire session and can terminate the session in the event that anything inappropriate takes place. They will also be able to provide contact notes in the usual way, if required.

It is understood that use of this facility will cost £25 per 30 minute contact session, with a £5 one-off administrative fee being charged at referral.

Anyone wishing to use this facility should contact Chances Gives Choices via the messaging service on their website:

https://www.chancesgiveschoices.com/

Although the centre is currently only offering this service whilst the Stay At Home Rules remain in place, one can anticipate a continued demand for it in future. It would be a very useful addition to the other great services already offered by Chances Gives Choices, particularly as a graduated step to reintroduce contact, or where practical restrictions make face-to-face contact impossible, such as where a parent/child has difficulty getting to a contact centre on a regular basis.

What is clear is that the Coronavirus is forcing us to find new and innovative ways to work as a profession. We may inadvertently find these innovations are of great benefit to the Family Court and to the profession as a whole, once we emerge from these very difficult times.

Stay safe; stay positive.

Click here to view Robin Shane's full profile

Update from the President of the Family Division: how to submit an appeal during the COVID-19 crisis

The President of the Family Division has directed that all appeals to the Family Division must be submitted by email to appeals.familydivision@Justice.gov.uk

The subject line of the e-mail should state ‘APPEAL TO HIGH COURT: NEW APPEAL’  If the appeal is urgent, this should be identified in the subject line.

All appellants, even those with PBA accounts or applying for fees exemption, will need to submit Form EX160B in relation to the issue fee in order to enable the Fees Office to process fees when the office re-opens. It is accepted that appeals may be issued and  it will NOT be possible to pay the fee within the 5 days specified on EX160B.

All documents in support of an appeal must be supplied in digital format, preferably PDF or Word.

STOP PRESS : Updated Vento Bands

The Presidents of Employment Tribunals in England & Wales and Scotland have issued further joint guidance updating updating the  bands initially set by Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 known colloquially  updating the    as the 'Vento Bands' which guide awards for injury to feelings

 As of 6th April 2020 these stand at -

  • £900 - £9,000 for 'lower band' cases (usually concerning a one-off minor act);
  • £9,000 - £27,000 for 'middle band' cases (usually concerning a one off serious act such as dismissal or more lengthy acts);
  • £27,000 - £45,000 for 'upper band' cases (usually concerning lengthy campaigns of harassment or very serious actions)"

Click here to view Barnaby Large's full profile

Procedure Rules – Coronavirus Pandemic Related

New Practice Direction 51Z to Stay Possession Proceedings

The Master of the Rolls and the Lord Chancellor have signed Practice Direction 51Z (PD) in relation to housing possession proceedings during the Coronavirus pandemic. It follows the Coronavirus Act 2020 emergency legislation and complements the provisions herein to prevent imminent evictions and delay possession proceedings.

The PD is effective immediately ie from today, 27th March 2020

The main changes effected by this PD are:

  • All proceedings for housing possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from today, 27th March 2020.
  • Claims for injunctive relief are not subject to the stay set out in paragraph 2 of the PD.
  • The PD ceases to have effect on 30th October 2020.

Further information :Practice Direction 51Z (PD)

No.18 Chambers : Here to help

In these ever changing times where we are being asked to adapt No.18 Chambers are here to help facilitate this. With over 50 years of clerking experience  and extremely experienced members,  No18 continues to be committed to providing the highest level of service, client care, advocacy and advice by ensuring that the needs, concerns and interests of clients are always paramount.

Following on from the President’s Guidance (as attached), as well as the very helpful documents compiled by Mr Justice Mostyn and Mr Justice MacDonald No.18 Chambers  are utilising technology to ensure the  smooth running of cases.  With this in mind we are able to operate our services remotely using a variety of methods at our disposal including telephone calls, email, Zoom, Skype for Business & Microsoft Teams.

Hearings :

For any form of Court hearings, No.18 is able to offer a virtual attendance via Zoom, Skype for Business & Microsoft Teams. For those who are unaware, these platforms can include:

  • The Court for the hearing itself
  • Separate conference rooms for the parties and their teams; and
  • corridor for counsel’s discussions.

All participants will sent the joining details in advance of the session and there is no need for any software or apps to be downloaded in advance: as it will be generated automatically when participants click on the access links which are provided.

 

Conferences  and advocates’ meetings

We are able to attend telephone and video conferences, which again does not require any of the participants to download any software in advance, as above.

Whether you have opted for a video or telephone conference with counsel,  joining details will need to be obtained before the conference is due to commence.

With the new technology it makes no court destination too far.  Please do get in touch with us to discuss your preferred methods of communication at his challenging time.  If you have any questions about remote access and working then please do get in touch and we will be happy to assist you.

Further useful Numbers are also below in order to be able to organise  telephone hearings

BT Legal Conferencing : 0800 028 4194

Legal Connect : 0800 953 0405

Kidatu : 0800 279 4594

NEWS FLASH :The Coronavirus Job Retention Scheme – What is it and How Does it Work?

The Coronavirus Job Retention Scheme (‘CJRS’) is the biggest employment law headline since the abolition of tribunal fees in July 2017[1] and has formed the basis of much discussion among employment lawyers, human resources professionals, businesses and employees.

It’s introduction seeks to mitigation the inevitable downturn in any economy following a crisis of this nature but also to the introduction of specific measures under the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020, Health Protection (Coronavirus Restrictions) (England) Regulations 2020 and Coronavirus Act 2020 which came into force on the 21st, 26th and 25th March 2020 respectively, temporarily closing food and drink, schools and childcare establishments as well as imposing restrictions on movement and gatherings.

So what is the CJRS and how does it work? – Please click here for further details

 

 

NO.18 CHAMBERS: BUSINESS AS USUAL

No 18 Chambers continues to operate as usual and we will continue to do so until such time as we are advised against it. As a chambers we are continually monitoring the coronavirus outbreak, receiving daily advice from Public Health England (PHE), the Bar Council and considering the contingency measures we may need to put in place. We are determined to do all we can to ensure a continuous service to all of our clients with their welfare and that of our barristers and staff at the forefront of our minds.

We have in place a strict hygiene policy to help prevent the spread of the virus in line with UK Government recommendations Business Continuity plans are in place, and our flexible working policies mean there should be minimal disruption to the business, but we will continue to monitor the situation.Bearing this in mind, where possible we would please ask that you send your documents electronically.An internal working group has been established across the business to monitor and respond to the ongoing situation.
In addition we have now put in place a number of measures in case they are needed in the coming weeks.
These are as follows:

  • All our barristers are able to work remotely
  • Conferences may be held via telephone or Skype .
  • Our operating systems can all be accessed remotely, including our administration and telephone system

In the unlikely event that we have to close chambers buildings, procedures have been put in place to ensure calls will be answered by our clerking team on our usual number  02380 736 812. However, in case of emergency .The mobile phone numbers of our clerks are:

  • Mark Windebank, Senior Clerk: 07748 984852
  • Dan Fantham, First Junior Clerk: 07780 260581

By putting in place these contingency measures we intend to continue offering as normal a service as possible throughout the duration of this unprecedented epidemic; and by working together we are confident we can find solutions to any problems arising, thereby reducing as far as possible any impact on our professional and lay clients and minimising risks to health.

We will of course keep you updated if this situation changes but in the meantime if you have any queries, please do not hesitate to contact us in chambersMark Windebank
Senior Clerk

Guidance re: Civil Proceedings during the Coronavirus Pandemic

The new Practice Direction 51Y

The Master of the Rolls and the Lord Chancellor have signed Practice Direction 51Y (PD) in relation to video or audio hearings during the Coronavirus pandemic. It is a technical amendment, which clarifies the manner in which the court may exercise its discretion to conduct hearings remotely in private. It also clarifies what steps the court may make to ensure access by the public to remote hearings that have been held in private through making available audio or video recordings of those hearings at a time when the courts are operating normally.

The PD is introduced as a pilot scheme under CPR Pt 51. It is intended to formalise the PD through a rule amendment at the earliest opportunity. It will remain in force for no longer than the Coronavirus Bill is intended to remain in force.

The main changes effected by this PD:

  • clarify that the court may exercise the power to hold a remote hearing in private where it is not possible for the hearing to be simultaneously broadcast in a court building. It may do so consistently with the power to derogate from the principle of open justice and may do so under the provisions of this PD in addition to the bases for doing so set out in CPR 39.2. Where such an order is made under the PD the provisions in CPR 39.2(5) do not apply;
  • confirm that the court may not conduct a remote hearing in private where arrangements can be made for a member of the media to access the remote hearing. It makes clear that in such circumstances the court will be conducting the hearing in public;
  • clarifies that the court may direct that where it conducts a remote hearing in private, must, where it is practicable to do so, order that the hearing is recorded. Where it has power to do so, it may order the hearing to be video recorded, otherwise where a recording is to be made it should be an audio recording. Available powers to order such hearings to be recorded, and subsequently broadcast, apply to the Court of Appeal (Civil Division) through The Court of Appeal (Recording and Broadcasting) Order 2013 and are expected to apply more generally through s.85A of the Courts Act 2003, which is intended to be inserted by the Coronavirus Bill;

where a remote hearing is either audio or video recorded, any person may apply to the court for permission to access the recording.

Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders

During the current Coronavirus Crisis some parents whose children are the subject of Child Arrangements Orders made by the Family Court have been understandably concerned about their ability to meet the requirements of these court orders safely in the wholly unforeseen circumstances that now apply.

This short statement is intended to offer advice but, as the circumstances of each child and family will differ, any advice can only be in the most general form.

  1. Parental responsibility for a child who is the subject of a Child Arrangements Order [‘CAO’] made by the Family Court rests with the child’s parents and not with the court.
  2. The country is in the middle of a Public Health crisis on an unprecedented scale. The expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.
    Parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the government on 23 March [‘the Stay at Home Rules’]. In addition to these Rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and Public Health Wales [‘PHE/PHW’].
  3. The Stay at Home Rules have made the general position clear: it is no longer permitted for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
  4. Government guidance issued alongside the Stay at Home Rules on 23rdMarch deals specifically with child contact arrangements. It says:
    “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
    This establishes an exception to the mandatory ‘stay at home’ requirement; it does not, however, mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.
  5. More generally, the best way to deal with these difficult times will be for parents to communicate with one another about their worries, and what they think would be a good, practical solution. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this.
  6. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
  7. Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.
  8. Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.

The Rt. Hon. Sir Andrew McFarlane
President of the Family Division and Head of Family Justice

Update :The Remote Access Family Court: COVID-19 (coronavirus)

1.1 The COVID-19 crisis presents an unprecedented challenge to the provision of core public services that are traditionally delivered face to face, including healthcare, education and justice. At the same time, advances in communications and information technology made during the last 40 years allow us the opportunity to continue to provide these services effectively, through the use of hardware and software communication platforms that are now readily available. Within this context, it should be possible to continue substantially the full operation of the family justice system, albeit on a remote access basis, notwithstanding the COVID-19 pandemic.

1.2 Information gathered since the Prime Minister’s announcement of the introduction of stringent social distancing measures on 16 March 2020 suggests that the key challenges in implementing a remote access Family Court for the duration of the COVID-19 outbreak centre on the extremely short timescale over which such a system must now be introduced and the need to mediate the very large choice of software and hardware platforms currently available to courts and court users pending the introduction by the Ministry of Justice of a centralised remote access system (the forthcoming ‘Cloud Video Platform’ or CVP).

News Flash : UK Civil Partnership Vs Marriage - What’s The Difference?

Ian Wheaton has teamed up with Hatti Suvari (the podcaster behind this popular podcast Get Legally Speaking) and hopes to answer all those questions you might have about what is a Civil Partnership and the main differences it has to a marriage.

This Podcast will cover  - How do you register a Civil Partnership? Are there any specific eligibility requirements for forming a Civil Partnership? Are witnesses needed for a Civil Partnership? Are there any benefits of being registered as a Civil Partnership over being married? If in a Civil Partnership, do you have equal rights over your partner’s assets and Pension when he or she dies? How do you end a Civil Partnership? And much more!

Join Ian and Hatti here: https://www.buzzsprout.com/602962/2665258

Click here to view Ian Wheaton's full profile

COVID 19: National Guidance for the Family Court (19th March 2020)

This Guidance, which is issued with the approval of the Lord Chief Justice and the Senior Presiding Judge, is intended to be followed with immediate effect by all levels of the Family Court and in the High Court Family Division.  Please click here to read the presidents guidance in full.

Coronavirus Update : message from the Lord Chief Justice

The impact of the public health emergency on the operation of the courts has been under constant review. In all jurisdictions steps are being taken to enable as many hearings as possible to be conducted with some or all of the participants attending by telephone, video-link or online. Many court hearings will be able to continue as normal with appropriate precautions being taken. We must make every effort to maintain a functioning court system in support of the administration of justice and rule of law.

Trials in the Crown Court present particular problems in a fast-developing situation because they require the presence in court of many different participants including the judge, the jury, a defendant, lawyers and witnesses as well as staff. Given the risks of a trial not being able to complete, I have decided that no new trial should start in the Crown Court unless it is expected to last for three days or less. All cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned. These cases will be kept under review and the position regarding short trials will be revisited as circumstances develop and in any event next week. As events unfold decisions will be taken in respect of all cases awaiting trial in the Crown Court.

Trials currently underway will generally proceed in the hope that they can be completed.

All those attending court should follow Public Heath England guidance suitably adjusted to reflect the distinct features of a court as a working environment for all concerned, including jurors.

The Lord Burnett of Maldon
Lord Chief Justice

Coronavirus update from the Lord Chief Justice

The latest guidance from government on how to respond to COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction. It is not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt.

We continue to work closely with others in the justice system, including the Ministry of Justice and HMCTS, to work through the implications of the developing medical position for the operation of the courts.

Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.

Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.

In all things Judicial Office Holders are advised to liaise with leadership judges and HMCTS.

The Lord Burnett of Maldon
Lord Chief Justice

Financial Remedies Courts – e-bundles protocol

Have you seen the latest guidance on  e-bundles protocol within financial remedies court as released by The Hon Mr Justice Mostyn ?

  1. The Financial Remedies Courts Good Practice Protocol of 7 November 2019 states at para 18 that “the FRCs will endeavour to adopt environmentally friendly processes. For example, where possible, parties will be encouraged to conduct hearings on a paperless basis”.
  2. FPR PD27A para 2.5 permits the use of e-bundles in a hearing before a High Court judge with that judge’s permission and in other cases or classes of case as have been approved by the Designated Family Judge for the relevant area with the agreement of the President of the Family Division and in accordance with the local arrangements.
  3. The necessary approvals and agreements for the use, in principle, of e-bundles in FRC Zones have been obtained and local arrangements are being established.
  4. Where an e-bundle is to be used the following technical requirements should be observed:
    (a) PDF format is to be used;
    (b) All documents are to be contained, if possible, within one single PDF file;
    (c) The PDF file must be searchable;
    (d) Pagination must be computer generated within the PDF, not hand-written
    (i) Original pagination must be by section and page number i.e. A1, A2, A3…. B1, B2, B3 etc;
    (ii) Insertions, after compilation of the original bundles, should be using ‘legal’ numbering (e.g. B13.1, B13.2, B 13.3 to be inserted between B13 and B14);
    (e) Each section of the bundle, and each individual document referenced in the index, should be separately bookmarked.
  5. The e-bundle should be delivered via a cloud-based link (e.g. iCloud, OneDrive, Dropbox or Google Drive) rather than in a series of emails.
  6. It is acceptable for a hearing to be partly paperless. For example, in a routine financial remedy case involving oral evidence it will be commonplace for a witness to work from a paper bundle, while the judge and counsel are paperless.
  7. Nothing in this Protocol limits the parties from agreeing, with the consent of the court, to use an e-bundle service from a commercial provider.

Guidance has been given on how to prepare and amend such a bundle see this YouTube video.

Financial Remedies Courts: Structure document and Good Practice Protocol

An Overall Structure of the Financial Remedies Courts and the Role and Function of the Lead Judge was  published for the Financial Remedies Courts (FRCs) together with an accompanying Good Practice Protocol (both attached)

The FRCs have been established as a subsidiary structure working within the Family Court. The President of the Family Division has appointed a National Lead Judge and a Deputy National Lead Judge to oversee the operation of the FRCs.

The operation of the FRCs, and the creation of FRC zones and the appointment and role of the FRC Lead Judges within the zones, is attached on the second document

The first document titled Financial Remedies Courts Good Practice Protocol sets out the aims and objectives of the FRCs to improve the delivery of financial remedies for families involved in court proceedings relating to issues arising from the dissolution of relationships.

The FRC pilot scheme is slowly being rolled out, but currently does not apply to local courts, nearest seems to be London courts eg Croydon, and to our east Brighton, Worthing, Guildford.  I am sure it will apply soon locally, and the scheme will lead to better delivery of an application of financial law to financial remedy hearings.  Many of us, will have been in front of a DDJ who has not had a financial remedy background, and shuddered.

The following brief notes are taken from the good practice protocol to give you a taste, (schedules are referred to herein but not included). 

FRC’s aim is to improve the delivery of financial remedy hearings (defined in sch 1).  It is hoped to extend to TOLATA and I(PFF&D)A, subject to primary legislation.

Brief Overview:

  • There is a National Lead Judge (NLJ) and Deputy NLJ to oversee the FRC’s. 
  • There are zones, and Leading Judges (LJ) operate within those zones. 
  • The LJ identifies FRC judges to deal with financial remedy.
  • There are allocation guidelines contained in sch 2 eg: value of assets being relevant.
  • Each FRC zone will operate an allocation procedure. 
  • On issue of application, pro-forma  allocation questionnaire should be filed (pro-forma in sch 3). 
  • First appointment will be before an FRCJ 30-45 mins or exceptionally 60 or more if complex (to be indicated on allocation questionnaire). 
  • If parties can agree directions an accelerated first appointment procedure will apply (see sch 4 generally and for pro-forma order).

NB  Little reference is made to LIP’s !

Best Practice.

  • Judges will encourage settlement eg arbitration, mediation, divorce surgery and private FDR’s (separate considerations apply).
  • The protocol lists 6 websites offering guidance.
  • Standard Family Orders should be used.
  • FRC judges are to keep up to date with law.
  • FPRr9.14(5) questionnaires should not exceed 4 pages, (12 font, 1&1/2 or double spaced* - complex case, reluctant discloser may require a different approach) hard copy to be lodged by 11am or emailed to allocated judge by 2pm working day before.
  • Absent specific reasons, position statements (ditto*) and including schedules should not exceed:-
  • For 1st appointment 5 pages
  • For FDR 10 pages
  • For final hearing 15 pages.
  • Opposing advocates are encouraged to produce an agreed asset schedule.
  • If one or more of the parties are legally represented then an order should be drawn before the parties leave court or if not practicable within 2 working days.
  • FRC judges will respect the well being of advocates (hooray !), hearings not to start before 10am and the court day to end between 4 - 4.30.
  • There shall not be an expectation that emails sent after 6pm be answered before 8.30am unless there is a prospect of a settlement or reduction of issues.
  • FCR’s to adopt an environmentally friendly process eg paperless if possible.

Onwards and upwards !

Click here to view Gary Fawcett's full profile

STOP PRESS – Sara Chalk reported in Court of Appeal representing child through her children’s guardian- Re N (A Child) [2019] EWCA Civ 1997

In March 2018 Sara Chalk represented the child through her Children’s Guardian at a 5 day fact finding hearing regarding non-accidental injuries of multiple bruises on several parts of the body including to the head, face, chest, back, thigh and ear. The case had some complexities due to there being 6 intervenors who were litigants in persons. Two of these intervenors had learning difficulties and therefore had the benefit of an intermediary. At the conclusion of the 5 day fact finding hearing the mother and her partner were found to be in the "pool" for the perpetration of the injuries to the child.  

Following conclusion of the fact finding hearing a psychological assessment and parenting assessment of the mother and her partner were directed. During the assessment process regarding the welfare stage of the proceedings the psychologist reported that the mother had difficulty in terms of her ability to understand and express herself verbally. The mother’s solicitor sought a report by an intermediary and this recommended that the mother have the assistance of an intermediary. An application was then made to the trial judge on behalf of mother to reopen the fact finding hearing and set aside the previous findings in light of the psychological assessment and intermediary report. The judge refused the mother's application for a rehearing. The mother appealed this decision.

In November 2019 the Court of Appeal held that a wholesale failure to apply the Family Proceedings Rules 2010, Part 3A made it highly likely that the resulting trial would be judged to have been unfair. The Court of Appeal allowed the appeal and ordered a re-hearing which is due to take place in March 2020 at which Sara Chalk will once again represent the Children’s Guardian.

Click here to view Sara Chalk's full profile

News Flash: Katie Henry invited to speak at the World Congress in Singapore in July 2020

Following her invitation in Dublin in 2017, No18 Chambers is delighted to announce that Katie Henry has been invited to speak again at the World Congress on Family Law and Children’s Rights in Singapore in July. Katie will undertake a joint presentation with fellow barrister Jack Henry who is head of Family Law at DF Legal LLP in Cheltenham on parental alienation.

The conference runs from 19th to 22nd July at the Raffles City Convention Centre in Singapore.

Click here to view Katherine Henry's full profile

Stop Press: Barnaby Large (2007) secures big win for disabled employee in multi-day discrim case

The Claimant was employed as a marketing manager for the Respondent social enterprise. 

She had, for some time suffered with PTSD following being the victim of a commercial robbery many years before.  Whilst the Claimant had managed her conditions relatively successfully, following the her a difficult family bereavement in the Summer of 2017 her health declined and she found herself having to take time off for ill health and also to support family.

The Claimant's PTSD was found to amount to an Equality Act disability and, despite its resistance, the Respondent was found to have either actual or constructive knowledge of the same. 

Following Mr Large satisfied the Tribunal the Respondent failed to make a number of reasonable adjustments:

1) Despite knowing the vulnerability  arising from her PTSD, the Respondent neither offered her the Claimant the opportunity to bring a companion to nor gave reasonable notice of an informal hearing of her grievance, the review meeting for her performance or the dismissal meeting.

2) Further, the Respondent failed to warn the Claimant the final meeting it held might result in her dismissal.

In addition, the Tribunal also agreed with Mr Large's submissions that the Respondent had performance managed and dismissed the Claimant due to its perception of the risk of her taking further sick leave and need for reasonable adjustments to her workload, rejecting the assertion the dismissal was based on performance and reaction to changes to workload. The Respondent was also found to have failed to consider alternatives to dismissal.

The Respondent required the Claimant to write up her own performance targets, only to have her time-line reduced on three successive occasions by management. The Tribunal found she was essentially being 'set up to fail'.

Whilst the desire to have staff present within the office was potentially a legitimate aim, dismissal was not a proportionate means of achieving it.

The Tribunal gave judgment for £42,284.12 comprising pecuniary losses and a vento award towards the centre of the middle band."

To read the full decision please click  https://www.gov.uk/employment-tribunal-decisions/miss-k-linsley-hood-v-camps-international-group-ltd-1400552-2018

Click here to view Barnaby Large's full profile

Merry Christmas from all at No 18 Chambers

xmas2019

Observations from the Frontline: MOJ STAGE 3

Fixed Costs & Broadhurst v Tan; Taylor v Smith [2016] EWCA Civ 94:

In a recent case it was argued by the claimant that a Part 36 offer made after the issue of Stage 3 proceedings will have the consequences as set out under CPR 36.17. They had completed a Statement of Costs ready to hand. In support of this position, they relied upon Broadhurst v Tan; Taylor v Smith [2016] EWCA Civ 94.

There is no doubt Broadhurst v Tan; Taylor v Smith is an important judgment but what effect does it have on an MOJ Stage 3 hearings and Part 36 offers (aside from the CPR 36.25 Section II ‘Protocol Offer’)? Unfortunately none.

In Broadhurst v Tan; Taylor v Smith it was established that “where a claimant makes a successful Part 36 offer in a section IIIA case, he will be awarded fixed costs to the last staging point provided by rule 45.29C and Table 6B.  He will then be awarded costs to be assessed on the indemnity basis in addition from the date that the offer became effective.” The court was concerned with Section IIIA as opposed to Section III which deals with costs awarded at MOJ Stage 3 hearings.

The only applicable costs awarded at MOJ Stage 3 hearings are the fixed costs as provided for at CPR 45.17. What is the position when a claimant beats their protocol offer? CPR 36.24(1) Section II clearly states Section I does not apply therefore the claimant will not be entitled to the cost consequences as set out at CPR 36.17. Instead, the claimant who matches or beats their Protocol offer is entitled to the consequences set out at CPR 36.29(4) only.

What about claimants who make Part 36 offers in addition to the Protocol offers? The answer is they have no effect at MOJ Stage 3 hearings. Any offer to settle has to be made in accordance with CPR 36.25. Parties are free to make Part 36 or any offers as they wish however, any offer to settle which is not made in accordance with Section II will not have any costs consequences (CPR 36.24(4)).

Claims for Gratuitous care

Although seldom in cases involving minor soft tissue injuries, claimants sometimes claim for gratuitous care as part of the MOJ portal process. A claim for gratuitous care is predicated on the basis that the claimant has been restricted because of his/her injuries, thus necessitating the provision of care from friends or loved ones.  It is important to note that a claimant can only claim for care that goes “above and beyond” any arrangement that may already be set up for the provision of care as between the claimant and caregiver.

When representing a Defendant at an MOJ Stage 3 oral hearing, it is important to closely scrutinise the medical evidence (usually this will be in the form of a medical report from a General Practitioner) or any other physiotherapy documentation that has been provided by the Claimant.

 

In a recent case, a claimant claimed approx. £1600 for Gratuitous care (amongst other heads of loss) over a period of 6 months. The Claimant suffered minor soft tissue injuries to her neck and shoulders. The prognosis was that the Claimant would recover from all injuries 6 months post-accident. The claimant, who was 64 years of age, was the primary carer for her autistic grandson. At the point of examination (1.5 months post-accident), the Claimant reporting suffering a ‘severe restriction’ in childcare, shopping, walking, swimming, DIY etc. The pain was said to be initially severe but described as moderate-severe at the time of examination. The claimant had a 5-10% restriction in the range of movement in her injury sites when examined by the medical expert.

On the day of the hearing, the Claimant’s representative handed Counsel a copy of the Claimant’s witness statement. This has not been provided to the Defendant’s solicitors prior to the hearing. Counsel opposed the introduction of the witness statement on the basis that it amounted to an ambush and the witness statement should have been provided at Stage 2 (after all, the whole point of the portal process is that both sides know the full basis on which a claim is made). The witness statement provided that the claimant’s daughter assisted with the provision of care for the Claimant’s grandson – helping him in/out of bed, transporting him about, preparing meals, general care etc. Despite being served on the morning of the hearing, the District Judge allowed the claimant’s witness statement in. Counsel successfully submitted that the medical evidence was inconsistent with the claim for care. The 5-10% restriction in movement noted on examination did not correspond to the ‘severe restriction’ reported by the claimant. Nor did it justify a claim for gratuitous care in the sum of £1600.  The District Judge agreed. The claimant’s claim for care was reduced from £1600 to £200. This highlights the important of looking closely at the medical evidence when preparing for a Stage 3 Oral hearing. It is also important that Counsel is prepared to robustly challenge the evidence in court.

Click here to view Amelia King, Francis Payne's full profile

Flexible Operating Hours: The future of the courts or a recipe for disaster?

Last month saw the start of the flexible operating hours (“FOH”) at Manchester Civil Justice Centre and the County Court at Brentford. This is a six month pilot scheme which involves early sittings from 8am to late sittings at 7pm in both civil and family cases. The aim is to test whether this would lead to better access to justice for people as well as an improved efficiency in the Court buildings.

But whilst this pilot may allow people to attend Court outside of their working day, and may reduce the delays in cases being heard, what about the people whose ‘working day’ revolves around the Court building?

It is well known, and widely accepted, that barristers and solicitors’ days rarely start at 9am and finish at 5pm. However, the possibility of FOH being rolled out to all Courts leads to a risk of legal professionals needing to be at Court as early as 8am or as late as 7pm. It is extremely unlikely that any barrister or solicitor will frequent their most local court on a daily basis and so travelling time has to be factored in to any working day. Consider a situation where Counsel is in court until 7pm on one end of the Western Circuit and is expected in court at 8am at the other end the next day. Work does not start and end the minute the case in court concludes either. The additional work of attendance notes, orders and preparation time is also a valuable part of the job. This is not just expected of Counsel; solicitors also need to be on hand for instructions, as well as any following up that needs to be done after any hearing. FOH therefore risks lawyers working all hours of the day, without the time for any sufficient break. At a time when the President of the Family Division, Sir Andrew McFarlane, is telling us not to do more than a full day’s work, the concepts of FOH and Wellbeing at the Bar simply cannot be reconciled.

Further, FOH risks the legal profession taking a step backwards in terms of equality as family life would clearly be affected. Many schools or childcare institutions would not be available either that early in the morning or late into the evening, meaning many would have to take a step back from the profession to look after their children. Again, the Bar has developed so that professionals can now have a working and family life and FOH only places this into jeopardy.

Finally, it is not just legal professionals who will experience this change. A thought has to be spared for the court staff as well as Cafcass officers, social workers and other professionals who have to attend hearings. Our current system and processes would simply collapse without them and it is important to consider that they would face similar problems and potentially without any increase in salary.

Therefore, whilst FOH may cut down delays in cases coming to Court and could benefit lay clients who currently have to take time out of their working day to attend Court, the professionals who dedicate their working life to the court system also have to be considered. In theory, FOH may seem desirable and workable but in reality, this initiative is littered with problems and completely undermines the hard work of those who are pushing for wellbeing at the Bar and the progression to a positive work/life balance of the legal profession.

Click here to view Rachel Chapman's full profile

No.18 Chambers welcomes New Pupil Sarah Barber

No.18 Chambers is delighted to welcome Sarah Barber .Sarah joined Chambers as a pupil in October 2019. She was called to the Bar in 2018 after obtaining a ‘Very Competent’ grade on the BPTC. Prior to pupillage, Sarah provided assistance to solicitors in child law matters, working as a Paralegal for a Local Authority and then for a local firm of solicitors, specialising in child care law. Sarah has also held voluntary positions with both the National Centre for Domestic Violence and the Witness Service in the Magistrates’ Court.

Click here to view Sarah Barber's full profile

Stop Press :No.18 Chambers increases recognition in the annual Legal 500 rankings for fourth year running

No.18 Chambers are delighted to announce we have increased our recognition for the fourth year running in the annual Legal 500 rankings. The Legal 500 assesses law firms throughout the country and this year No.18 Chambers have been named as one of the recommended sets on the Western Circuit  for Family, Employment & Immigration. Furthermore, six barristers have been individually acknowledged in the "Leading Juniors" list for their work in Family law & Children, Immigration and Employment.

 

Legal 500 Overview:

No.18 Chambers, a set that primarily focuses on children law and matrimonial finance, has ‘a varied group of skilled lawyers’. Senior clerk Mark Windebank heads a clerking team that is ‘very capable and understanding….. the clerks are always helpful with booking in return dates and keeping consistency in representation

 

Family and Children Law : (Western Circuit - Leading juniors)

No.18 Chambers is active in financial remedy and private children law proceedings, as well as reporting an influx of public law instructions in the past year. Nigel Cholerton is particularly noted for public law proceedings involving complex findings of fact. Lee Young, Nigel Cholerton, Laura Baines & Katherine Henry have been individually acknowledged in the "Leading Juniors" list for their work in Family law & Children;

  • Lee Young (1991)  ‘ Active in all areas of family law ’
  • Nigel Cholerton (2007) (admitted as Solicitor 2004)  ‘ His easy and confident manner helps put clients at ease
  • Laura Baines (2007)  ‘ Very knowledgeable and quick on her feet
  • Katherine Henry (2008) ‘ Particularly skilled with difficult Children Act cases ’

 

Employment : (Western Circuit - Leading juniors)

No.18 Chambers is home to Barnaby Large, who is instructed in a wide range of matters for claimants and, more notably, respondents. In a recent highlight, Large represented the respondent picture framer in a discrimination, unfair dismissal, and victimisation claim brought following the dismissal of an employee for breach of confidentiality. Barnaby Large has been individually acknowledged in the "Leading Juniors" list for his work in Employment;

  • Barnaby Large (2007)  ‘ Provides meticulous and well written opinions

 

Immigration (Western Circuit - Leading juniors)

No.18 Chambers is home to immigration practitioners Laura Baines and Sarah Hirech, who acts predominantly for appellants in immigration cases, although the set is also instructed on behalf of respondents. Laura Baines & Sarah Hirech have been individually acknowledged in the "Leading Juniors" list for their work in Immigration.

  • Laura Baines (2007)  ‘ Client-focused and provides down-to-earth advice
  • Sarah Hirech (2012)   ‘ Recommended for appeals overlapping with domestic violence, human rights claims, and deceptive applications ’

A (short) Guide to the Treatment of Pensions on Divorce The Report of the Pension Advisory Group (PAG) July 2019

The information below is meant as a list of chapters and contents, to give a flavour of the report (as attached ) in case it has not yet been read.  The report comprising over 160 pages, is a good practice guide representing the product of two years’ work.  It is an in-depth tome, the likes of which probably hasn’t been produced before. The report is concisely written and any attempt to precise it would not do it justice.

PAG consists of 24 members comprising judges, barristers, solicitors, financial advisors, actuaries, pension consultants, and academics.  Over 60 other bodies and individuals have assisted by way of contribution or opinion.  The joint chairs are Mr Justice Francis and His Honour Judge Edward Hess (joint author of useful practitioner’s guide ‘Pensions on Divorce’).

It is a guide, initially set out in chapters, detailing essential action points (see 2.5), followed by computation of pension assets (see 3.7) and methods of division ad highlighting the limitation of CE figures (important in my view). 

Then follows guidance on the treatment of pensions in needs and sharing cases, and whether pensions are treated as deferred capital or income. 

Helpful information follows in chapters dealing with pensions fairly on divorce (see 6.10 for examples. Case 5 e.g. suggests seriously considering a report when the CE of defined benefit schemes is between £100,000 - £200,000, citing that defined benefit schemes often undervalue the actual benefits the holder will receive), pension offsetting (see 7.21 for how the overall value of a pension income can be decreased when a pension is split.) and the impact of pension freedoms. 

  • Taxation is looked at (what is the tax rate if more than 25% is taken tax free) and the importance of State pensions is emphasised (Old state pension, new state pension etc.).  
  • There is an examination of potential issues, varying an original order and finally a look at international issues.
  • P71 contains a glossary and then follows other appendixes at p83 dealing with contested and uncontested cases and who is a pensions expert ?
  • Helpfully appendix F contains a specimen letter to a single joint expert. 
  • Recommendations are given on post order implementation, death in service benefits and self-administered schemes.
  • There is a section (app I et seq) about non public sector schemes, underfunding of schemes, the pension protection fund, data and format of reports, seeking a consistent basis of valuation, defined benefits schemes, apportionment of final salary rights, fees and costs, Ogden tables, and finally issues beyond the remit of PAG for the attention of responsible bodies (does that mean Parliament as we see it on TV?)
  • Actuaries reports are important to get accurate figures, much in the same way that a financial advisers assessment of a person’s mortgage raising capacity is important.  We have all been in cases where the parties simply cannot afford to pay for an actuaries report.  If one is ordered by the courts own volition it merely acts as a stick to settle. 

The guide really does seem to be the complete ‘one-stop shop’ for anyone seeking the necessary information to deal properly with pensions on divorce. All divorce practitioners should definitely read it.

The financial remedy process is expensive, lengthy and strength sapping for clients.  Perhaps when it is known clients have limited funds, then the parties may consider whether a report is needed at an early stage, and apportion funds, even though that may mean less money being spent for example on questionnaires.  However each case turns on its own facts. 

Click here to view the guide

Click here to view Gary Fawcett's full profile

No.18 Chambers Welcomes New Tenant – Rachel Chapman (2017)

No.18 Chambers is delighted to announce that Rachel Chapman (2017) has accepted an invitation to join Chambers following successful completion of her pupillage in October. Rachel will be joining our Family & Civil teams.

Rachel joined chambers following successful completion of her pupillage in October 2019. Rachel predominantly undertakes work within Family Law and Civil Law.

Rachel was called to the Bar in 2017 following her successful completion of the Bar Professional Training Course at the University of the West of England where she obtained an ‘Outstanding’.

Prior to pupillage, Rachel worked as a paralegal in a national firm of solicitors where she specialised in Regulatory Law, consistently working with some of the major Healthcare Regulators.

Click here to view Rachel Chapman's full profile

STOP PRESS – BARNABY LARGE HAS EAT CASE REPORTED (UKEAT/0282/18/RN)

Case Summary:

 

The Claimant had taken photographs of invoices she had seen during her work, which she considered established that she had not been told the truth by her employer about her pay and working hours. She provided copies of these photographs to her solicitor, who was assisting with her grievance, but was subsequently dismissed for breach of confidentiality. The ET accepted that the act of sending the photographed copies of the invoices to her solicitor was a protected act but found the Claimant’s dismissal was in no way related to that act; to the extent the Respondent had been aggrieved about her conduct in that regard, it was because she failed to demonstrate support in a time of financial hardship. When considering the Claimant’s complaint of unfair dismissal, however, the ET found that the reason for her dismissal was her conduct in photographing the invoices and then sending those images to her solicitor.  Given the context, the ET did not find this was an act of gross misconduct but it held that the decision to dismiss did not fall outside the band of reasonable response given the Respondents’ sense of grievance about what was seen as a lack of trust and the Claimant’s perceived failure to demonstrate support in a time of financial hardship. The ET went on to find the dismissal had been unfair for procedural reasons but concluded that, if a fair procedure had been followed, there was still an 80% likelihood that the Claimant would have been dismissed.  The ET further held that the Claimant’s conduct was such that there should be a further 80% reduction. The Claimant appealed.

 

Decision:

Held: allowing the appeal

In considering the complaint of unfair dismissal, the ET’s findings as to the reason for the dismissal were such that it was inconsistent for it to hold that the protected act (the Claimant’s act of sending copies of the invoices to her solicitor) had not materially influenced the decision: that was an unavoidable consequence of its finding as to the reason for the dismissal and it was perverse of the ET to find otherwise. The ET’s decisions relevant to the Polkey reduction and on contributory conduct were also unsafe. The ET had failed to grapple with the question of seriousness in relation to the Claimant’s conduct, failing to demonstrate that it had any regard to the context in which the Claimant had passed on the photographs (for a specific purpose related to getting advice and assistance in her grievance, and sent to a solicitor, who was bound by their own duty of confidence).  As for its finding on contributory fault, that was inadequately reasoned given that - in the particular context the ET had itself identified - there was no explanation as to why the Claimant’s actions had been blameworthy.

In relation to the victimisation claim, given the ET’s findings of fact, there was only one possible outcome and the Judgment in that regard would be set aside and substituted by a finding that the victimisation claim relating to the Claimant’s dismissal was upheld. The questions of any reduction under Polkey and/or for contributory fault would be remitted for reconsideration to a differently constituted ET.

For a full transcript of Judgement please click on the below links https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2019/0282_18_0705.html&query=(elston)

or https://assets.publishing.service.gov.uk/media/5d1f5a49e5274a08d9d8c537/Ms_I_Elston_v_1__Robbie_s_Photographic_Ltd__2__Mr_W_McRobbie_UKEAT_0282_18_RN.pdf

Click here to view Barnaby Large's full profile

Case study : Order for lump sum -v- undertaking to pay a lump sum

1.  a.  MCA s23 (1) (c) states the court may make:-
 
‘an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified’
 
b.  And the more relevant provision in the subject case was s23 (3) (c) MCA:- 'an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order …’
 
2.  On divorce H wanted to sell his interests in two businesses and start life afresh, seeking as far as possible a clean break.  
H agreed a sale of his business interests in a very limited market, with stage payments reaching as far as 2028/9.  It was the best deal he could get in the circumstances.  
The parties agreed a division of the assets, including W to retain the fmh, with a small mortgage.  To equalise capital, W was to receive one half of the stage payments scheduled for 2024 and 2025.  
 
3. Under the terms of the business sale agreements, if all or part of a stage payment was not met in any particular year, then the amount outstanding was divided between the remaining stage payments due in the remaining years.  In theory therefore, part of a stage payment agreed in 2024 may not be paid until 2028/9.
 
4. An agreed order was submitted to the DJ as a lump sum order.  
 
The judge rejected that part of the order saying:-
 
‘An order is meant to be clear as to what will happen and when.  If the Respondent receives no payment in 2024 or 2025 but a big one in 2026, what happens? The payments to Respondent appear to be due to be paid in specified amounts and the uncertainty appears to be around inability of the purchaser to pay.I would prefer for the fixed dates and fixed amounts for payment to the wife with a provision that the Respondent may apply for a variation if the payments due are not received in full at the expected times.That at least places the court in the position of deciding.The clause as previously drafted is vague and inconclusive with no obvious means of resolving any dispute which may arise.’
 
5. The judge fixed a directions appointment.  At first an agreed amended version of the order was put before the judge with an alternative for the payment of the lump sum by instalments to be contained in the order by way of H’s undertakings.  The judge accepted the latter course with W’s claim for a lump sum being adjourned until all money due to W was paid.
 
Comments: 

1.  Both sub sections above use the word ‘may’ as opposed to shall.  It was submitted to the judge that meant the court did not have to specify an amount in say pounds sterling, but the section gave the court a discretion to fix the amount by reference to a formula of words or a percentage, if say the payment was contingent on an event occurring, but the value not currently being known[1].  The judge did not respond to that point.
 
2.  This case is a useful example of what was eluded to in Birch v Birch [2015] EWCA Civ 833 (CA)[2].  Mc Combe LJ said  
‘… it is a recognised process of consent orders of this type to make arrangements, by way of undertakings by one or more of the parties, for matters outside the powers of the court  under the 1973 Act. Such undertakings are “enforceable as effectively as direct orders”: see per Lord Brandon of Oakbrook in Livesey v Jenkins [1985] AC 424 at 444F – H, [1985] 1 All ER 106, [1985] 2 WLR 47. The undertakings are an essential part of the bricks and mortar with which the edifice of such financial orders are constructed.’
 
3.  Whilst the original and secondary suggested wording of the order was rejected by the judge, there is an argument that there are different ways of including a lump sum as an order eg being calculated according to a formula or percentage for example.

Click here to view Gary Fawcett's full profile

STOP PRESS : Does Boris need a non-cohabitation agreement

In a land of black BMW’s, dark suits, and the odd shock of blond Old Etonian hair … was a lad called Boris.  Separated from Marina, but not divorced, cohabiting or not with a lass called Carrie, the press wondered will he ever settle down? 

Entering the doorway of no 10 alone, his lawyers were wondering who will be our first lady?  As the glossy black door and closed and shut the world out, Boris called Adrian his trusty Counsel, ‘What do I do, do I move Carrie in?’

Adrian told him about the case of GW v RW [2003] EWHC 611, with Nicholas Mostyn QC sitting as a Deputy High Court Judge, wherein he famously said:-

“Thus in my judgement, where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently”.

‘Nowadays,’ continued Adrain ‘in every case, it is almost automatic when computing the length of the marriage, to add in premarital cohabitation’.  Boris spluttered ‘It’s a good job we had that row in early July, does that put a seam in seamless?’.  ‘Boris, have you never heard of domestic violence and legal aid?’.  Boris reached for the brandy.

Adrian continued with his legal spoutings, some falling on ringing deaf ears, ‘Boris, recently in MB v EB [2019] EWHC 1649 (Fam) Cohen J had to determine the length of the marriage, and that can affect the quantum of the marital acquest, or pension entitlement.  Let me read you out a section from that case (Boris laid his phone down, taking it off loud speaker, flopped on the settee and caressed his brandy glass, a purring cat brushing endlessly against his legs).

‘This is what Mr Justice Cohen said at paragraph 50 citing from an earlier case.  

‘At paragraph 68 of IX v IY [2018] EWHC 3053 (Fam), Mr Justice Williams said this:

What the court must be looking to identify is a time at which the relationship had acquired sufficient mutuality of commitment to equate to marriage.  Of course in very many cases, possibly most cases, this will be very obviously marked by the parties' cohabiting, possibly in conjunction with the purchase of a property.  However, in other cases, and this may be one of them, it is not easy to identify.  The mere fact that parties begin to spend time in each other's homes does not of itself, it seems to me, equate to marriage.  In situations such as this the court must look to an accumulation of markers of marriage which eventually will take the relationship over the threshold into a quasi-marital relationship which may then either be added to the marriage to establish a longer marriage or becomes a weightier factor as one of the circumstances of the case’

‘So Boris, you’d better remember that the date when people start to cohabit, or cease to cohabit for that matter, can impact on the result in a financial remedy case’.  ‘But I’m not yet divorced’ spluttered Boris.  ‘I know, but we’re dealing with that’.

‘Look Boris, family practitioners are familiar with cohabitation agreements, which have a valuable place in setting out responsibilities, financial or otherwise, in a non-marital relationship.  But as the general public become more aware of the law in this area, (possibly with the knowledge that the longer the period of cohabitation the higher the potential claim) it may be important for a party or the parties to be clear when they are not cohabiting’.  ‘I see’ said Boris tipping the contents of the brandy decanter into his glass.

Adrian continued ‘I don’t pretend that such is necessarily common.  But it may be one party to a relationship wants to make it clear that cohabitation is not the status of the relationship.  As you heard from what Justice Cohen repeated, it is often easy to recognise cohabitation from a particular factor eg joint house purchase, but every case is different.  You aren’t buying no 10 are you?’.  ‘Well I hope to be here a long time’ said Boris ‘and it’s nearer Parliament than the flat!  What a good idea Adrian!’.

‘Hmmm’ mused Adrian with lifted eyebrows ‘you will remember when we wrote to Marina specifically stating the date when you both separated so she could not claim a longer period of the marriage?’  ‘Hmmm’ Boris searched his thoughts ‘… did you, I must have been busy on the campaign trail.  Did I instruct you to do that? … well must have been when I was tipping that waitress’.

‘Well Boris, you’re in the formative stage of a relationship with Carrie, well, that’s what I read in the gutter press.  She’ll be staying with you at no 10, wink wink, for extended periods of time perhaps, even Chequers, so perhaps we ought to specifically mark that you are not not cohabiting’.  I’ll get onto her lawyers to see if she’ll sign a non-cohabitation agreement, ok?’

‘Tastes good to me’ sighed Boris.  ‘What?’ demanded Adrian, ‘Sorry Adrian, lovely Remy Martin Louis XIII brandy, worth moving into no 10 for!’

‘Ok Boris, over and out’.  ‘I’m not over or out’ bawled Boris as the phone went dead.

Adrian reflected ‘There may not be many occasions when both parties want it recorded they are not cohabiting, but I’d better get on and help old mop head.  I hope Carrie agrees’.

Click here to view Gary Fawcett's full profile

Stop Press: The Spectre of Dishonesty

Dishonesty has always been that dirty word lawyers like to skirt around in litigation. There are professional obligations as to when and how its to be pleaded and, as we had previously understood, if it was not pleaded, we were unable to assert it.

ATB Sales Ltd v Rich Energy Ltd & Ors [2019] EWHC 1207 (IPEC) alters that general perception, suggesting as to when allegations of dishonesty may be put during oral evidence. 

ATB, a bicycle designer, trading under the name “Whyte Bikes”, sought injunctive relief on grounds of copying infringement for the use of its logo by RE, an energy drinks manufacturer, on their Formula 1 Racecar and website. The logo contained a distinctive stags head drawn by ATB’s staff in 2008 within the course of their employment.

RE’s case was that its director, William Storey, the Second Defendant, had commissioned Staxoweb Ltd, a marketing company, owned by a childhood friend, the Third Defendant, to design a logo for their racing team in 2015. This same logo just happened to feature the iconic stags head.

All three defendants denied copying the image, asserting it was independently designed without knowledge of ATB’s logo (do Google both images if you get the chance – it is quite enlightening).

During the trial, ATB’s Counsel put to RE’s witnesses that their evidence had been dishonest.

During closing submissions, RE’s Counsel, cited CPR 16 PD 8.2 and Chancery Guide at 10.1 which require any allegation of fraud to be pleaded, as well as CPR 32.19(1), where parties are deemed to admit the authenticity of a document disclosed where no express challenge to it is made. He submitted it was not open to the Court to make a finding of dishonesty on the part of the Defendants’ witnesses as RE was not put on notice of the allegation and unable to answer it before trial.

Rejecting the assertion, HHJ Mellisa Clarke held at paragraph 27 –

“As long as the facts upon which an inference of dishonesty may be based are pleaded, if evidence emerges at trial which the Claimant considers sufficient that the court might properly find dishonesty, even though it was not able to plead it before trial, it must be put to the relevant witness so that he may answer it. It is only then that a court may properly be invited to, and may make, an evidential finding that such a witness was indeed dishonest. This is part of the court's ordinary adjudicative function. In this case, the facts from which dishonesty may be inferred are clearly set out in the pleadings and arise from the cause of action. The Claimant pleads that the Defendants have copied C's Device, and the Defendants deny any familiarity with the Claimant or C's Device and deny copying it. It is for the court to sift and evaluate the evidence to determine the case. The court's hands will not be tied in the manner that the Defendants seek, by the fact that dishonesty has not been pleaded.”

Personal injury lawyers will find the case not too surprising given the line of authorities on the ability to assert an unpleaded allegation of fundamental dishonesty in order to displace qualified one-way costs shifting, most prominently in Newey LJ’s judgment in Howlett v Davies [2017] EWCA Civ 1696

The judgment is a common sense solution to the practical problem of the ever changing shape of a case, which will often alter in appearance long after pleadings have been settled. So long as a witness has the opportunity to respond to an allegation of dishonesty, properly put to them, where there is evidence of dishonesty to support a finding of the same, it may be raised despite an absence of pleading

Click here to view Barnaby Large's full profile

Stop Press: New Guidance on orders in Children cases

The President of the Family Division has published new guidance on forms of orders in children cases. Attention is drawn in particular to paragraph 9 and the drafting of first and subsequent orders.

https://www.judiciary.uk/publications/president-of-the-family-divisions-guidance-forms-of-orders-in-children-cases/

Click here to view Katherine Henry's full profile

STOP PRESS : No.18 Welcomes Dan Fantham & Beth Miles to the Clerksroom

No18 is delighted to welcome Dan Fantham and Beth Miles to our clerks room. Dan and Beth will be working alongside Mark in ensuring the highest service is offered.

No.18 are committed to you and your clients  by working collaboratively , as part of your  team to provide a package of high quality legal advice, professional advisory services and first-rate advocacy from the first instructions to conclusion of the case. Further,  No.18 chambers are serious about providing an exceptional level of service and will always be fair regarding fees  and tailoring  to each individual case .

Our clerks have a comprehensive knowledge of each barrister’s practice and expertise, this enables them to assess you and your client’s requirements; and make suitable and appropriate barrister recommendations.

Dan Fantham (First Junior Clerk)

Dan has joined chambers with over 30 years clerking experience gained at leading sets on both the Western & Northern Circuits. He has a wealth of experience & expertise in all core areas of Chambers work combined with an in depth knowledge of the working systems of the Courts and Tribunals in England & Wales.

His primary role in Chambers is to assist and support Mark with the day to day running and maintenance of the diary and case management together with the Billing and collection of fees. Dan’s years of experience gives him the skills in identifying client needs and has an acute knowledge of the barristers’ practices.

Beth Miles - Clerking Assistant

Beth joined Chambers in June 2019 having previously worked in another local set gaining considerable knowledge of the working of Chambers. Beth will be providing outstanding support in her dual role in the Clerks' Room: assisting with the day to day diary management, smooth running of Chambers and administration.

Beth will be developing  her skills in identifying clients’ needs and an acute knowledge of the barristers’ practices and ensuring that you are offered suitable counsel.

No.18 Chambers Welcomes New Tenant – Amelia King (2016)

No18 Chambers are delighted to announce that Amelia King has accepted her invitation to join Chambers following the successful completion of her pupillage in April 2019. Amelia’s practice includes family law and all areas of civil law.
 
She was called to the Bar in 2016 after obtaining a ‘Very Competent’ grade on the BPTC which she studied on a part-time basis whilst working full-time as a Paralegal in a law firm. Following the BPTC she qualified as an ADR Group Accredited Civil and Commercial Mediator.
 
Prior to pupillage Amelia practised as a County Court Advocate and attended court on the Western Circuit for a variety of cases including mortgage repossessions and applications, infant settlements, Consumer Credit Act disputes and general applications under the CPR.
For more information on his practice please see her individual profile below .

Click here to view Amelia King's full profile

STOP PRESS :Judicial Appointment in Chambers

No18 Chambers is delighted to announce that Katherine Henry has been appointed as a Deputy District Judge. Katherine will sit on the Western Circuit in a part time capacity. Everyone at Chambers wishes Katie well in her new role.

Click here to view Katherine Henry's full profile

Chambers are sorry to announce the sad passing of Chas Cochand.

Fondly recorded in the records of the Western Circuit as "the top Canadian barrister on the Western Circuit", Chas will be missed by both the profession, his Circuit and all those in Chambers.

Chas joined Chambers in 1991 with an exclusive criminal practice. He was a formidable advocate but also a kind and supportive figure, particularly to those junior members of Chambers who he sought to nurture throughout his career.

Chas always stood out. A charming man, who would regularly lighten the mood with some humour or a compliment to a colleague on a case well done, and a snappy dresser who never shied away from donning his Christmas waistcoat during the festive period.

Although he did not remain a full member of Chambers, Chas' continued support for Chambers subsisted through his maintenance of a door tenancy, a tie we were all grateful for.

Chas will be fondly remembered by all. A uniquely funny, charming and kind man

News Flash: General Damages for Methanol Exposure

Barnaby recently appeared on behalf of the Claimant in the matter of Brady v Detect Fire & Security Ltd (LTL Doc. AM0505427, December 2018).

The Claimant, an installer of fire alarms, was assigned by the Defendant, his employer, to a fitting assignment at the site of a third party, a company specialising in the manufacture and storage of contact lenses.

The Claimant was working in a room storing a number of contact lens in vats containing a mixture of ethanol and methanol (‘the clean room’). Although the Claimant was provided with protective clothing, this did not include breathing apparatus or a face mask.

Whilst positioned on a ladder in the clean room over one of the vats, the Claimant began to feel extremely unwell, experiencing severe stomach pains, profuse sweating, light-headedness and confusion.

The Claimant descended the ladder and drove himself to hospital accident and emergency where he was diagnosed with acute methanol poisoning. He developed severe stomach cramps associated with pain and vomiting with a pain score of 7 out of 10 which was at its worst for the first 24 hours following the incident. He was discharged from hospital a following day after admission.

The Claimant completely recovered from stomach cramps, pain and vomiting within a further two days. His dizziness and light headaches had fully resolved within 48 hours of the incident and confusion within 12 hours. He was unable to work or attend the gym for 72 hours after the incident.

The Court, when considering the issue of general damages, noting the absence of suitable comparable cases on the point awarded £1,200, having in mind the JC Guidelines pertaining to Chapter 6(G)(b)(iv) pertaining to varying degrees of disabling pain, cramps and diarrhoea continuing for some days or weeks.

Stop Press :Simplistic Pensions Overview.

In trying to make a topic simple but informative, some detail is necessarily lost.  And remember, in law, there is the general rule, and then there are always exceptions to it!

Pensions can come from three sources:-

1)  State (OAP and employees of the state e.g. police, judges!),

2)  Employers, and

3) Individuals.

The types of schemes can be generally divided into the following:-

1)  Defined contribution

2)  Defined benefit, 

3)  Sometimes a hybrid of the two.

Defined contribution schemes: 

Money is paid regularly into a policy and units are bought in an investment fund, providing a monetary value available at retirement.  25% can be usually taken as a tax free lump sum; historically an annuity was bought with the balance, but that is now less popular.  The funds can now be held in drawdown and taken subject to paying tax on anything taken above the 25% tax free limit.

Defined benefit: 

The terminal benefit will be an actual amount or, more often determined according to a formula, e.g. a proportion of salary dependant on number of years worked, more latterly though, career average earnings are used, not final salary. 

Such schemes are either

1)  State e.g. nhs, teachers, armed forces, or

2 ) Provided by employers. 

State pensions are unfunded i.e. no fund set aside to pay pensions but paid out of future taxes and members contributions.  On pension share the non spouse cannot transfer out of the scheme. 

Employers pensions are either funded or unfunded.  Money can be transferred out by a non member under a sharing order, because funds are there to support the withdrawal.

A few words about personal pension schemes:

The simplest form of personal pension scheme is where regular contributions are made to   a pension scheme and units are bought in a managed fund. 

Self administered pension schemes can present difficulties in pension sharing especially where the member invests in property, which can cause valuation problems, and funds are not liquid.  If there is a transfer within the scheme then legislation provides for each member has to be a trustee, which a transferring spouse may resist as it maintains a nexus between divorcing spouses.  A loan of up to 50% of the property value can be obtained against the property to free funds.  But if the property is part of an income producing business, it may not be an easy or desirable route.

Stakeholder pensions are a form of defined contribution personal pension. They have low and flexible minimum contributions, and capped charges. Some employers offer them or you can start one yourself without being employed (there are restrictions, contributions are limited).  Guaranteed Annuity Options schemes and Retirement Annuity Contracts schemes, are not offered  these days but you may come across one started years ago.

Click here to view Gary Fawcett's full profile

No.18 Barristers Chambers Sponsor The Hampshire Law Society Annual Dinner 2019

No.18 Barristers Chambers are delighted announce we are supporting The Hampshire Law Society Annual Dinner on the 6th June 2019.

The evening will take place at the prestigious Hilton at the Ageas Bowl.  With Pre-dinner drinks being served followed by  a sumptuous 3 course meal prior to the entertainment, the after dinner speaker (Great Britain’s first Olympic Ski Jumper Eddie ‘The Eagle’ Edwards)and presentation of the Legal Awards 2019.

For more details please see www.hampshirelawsociety.co.uk

Stop Press :Simplistic Pensions Overview.

In trying to make a topic simple but informative, some detail is necessarily lost.  And remember, in law, there is the general rule, and then there are always exceptions to it!

Pensions can come from three sources:-

1)  State (OAP and employees of the state e.g. police, judges!),

2)  Employers, and

3) Individuals.

The types of schemes can be generally divided into the following:-

1)  Defined contribution

2)  Defined benefit, 

3)  Sometimes a hybrid of the two.

Defined contribution schemes: 

Money is paid regularly into a policy and units are bought in an investment fund, providing a monetary value available at retirement.  25% can be usually taken as a tax free lump sum; historically an annuity was bought with the balance, but that is now less popular.  The funds can now be held in drawdown and taken subject to paying tax on anything taken above the 25% tax free limit.

Defined benefit: 

The terminal benefit will be an actual amount or, more often determined according to a formula, e.g. a proportion of salary dependant on number of years worked, more latterly though, career average earnings are used, not final salary. 

Such schemes are either

1)  State e.g. nhs, teachers, armed forces, or

2 ) Provided by employers. 

State pensions are unfunded i.e. no fund set aside to pay pensions but paid out of future taxes and members contributions.  On pension share the non spouse cannot transfer out of the scheme. 

Employers pensions are either funded or unfunded.  Money can be transferred out by a non member under a sharing order, because funds are there to support the withdrawal.

A few words about personal pension schemes:

The simplest form of personal pension scheme is where regular contributions are made to   a pension scheme and units are bought in a managed fund. 

Self administered pension schemes can present difficulties in pension sharing especially where the member invests in property, which can cause valuation problems, and funds are not liquid.  If there is a transfer within the scheme then legislation provides for each member has to be a trustee, which a transferring spouse may resist as it maintains a nexus between divorcing spouses.  A loan of up to 50% of the property value can be obtained against the property to free funds.  But if the property is part of an income producing business, it may not be an easy or desirable route.

Stakeholder pensions are a form of defined contribution personal pension. They have low and flexible minimum contributions, and capped charges. Some employers offer them or you can start one yourself without being employed (there are restrictions, contributions are limited).  Guaranteed Annuity Options schemes and Retirement Annuity Contracts schemes, are not offered  these days but you may come across one started years ago.

Click here to view Gary Fawcett's full profile

NEWS FLASH : Disclosure in the Family court

Further to my recent short article re slow disclosure of medical records under DPA/GDPR, the provisions of s31G of the Matrimonial and Family Proceedings Act 1984 are also of relevance (inserted by the C and C Act 2013). 

For some reason, the section is not reproduced in my Red Book 2018 in the MFPA 1984 section, but reads as follows:-

31G  Witnesses and evidence

 

(1)  Subsection (2) applies where the family court is satisfied that a person in England and Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, in proceedings in the court.

 

(2)  The court may, if it is satisfied that it is in the interests of justice to do so, issue a summons

 

(a)  requiring the person to attend before the court, at the time and place specified in the summons, to give evidence,

 

(b)  requiring the person to attend before the court, at the time and place specified in the summons, to produce the document or thing, or

 

(c)  requiring the person to produce the document or thing to the court.

The section was considered by Sir James Munby (sitting as High Court Judge) In the matter of Re H [2018] EWFC 61, wherein he said:-

  1. It is also clear that the family court can, if this is necessary to enable it to dispose of the proceedings before it justly and fairly, make an order requiring the third party decision maker, or an individual specified by the family court for the purpose, to disclose relevant documents or to give evidence (see further, paragraph 38 below) (GF’s note - this refers to the mandatory wording of para 7.4 Police protocol - "The police and the CPS will comply with any court order."). The jurisdiction to make such an order is quite plainly conferred by section 31G of the Matrimonial and Family Proceedings Act 1984, to which Mr Day referred me, and there is nothing, whether in section 31G itself, or in the provisions of the Family Procedure Rules, or in the case-law or in principle, to exonerate the police, the CPS or any other public agency or authority from the reach of section 31G. Section 31G goes to the power of the court to make an order for the disclosure of documents or the giving of evidence; it does not, I emphasise, empower the court to disregard the principle that although the court can demand an explanation it cannot require the third party to justify its decision.

Re H is also interesting because it provided an opportunity for Sir James to examine the limits of the Family Courts powers in connection with any Crown Court proceedings running in parallel or other agencies or authorities.

Click here to view Gary Fawcett's full profile

No.18 Chambers is delighted to announce that Tracey Hennessey will be speaking to the Junior Lawyers Division(South Hampshire) about Chasing your career goals

No.18 Chambers is delighted to announce that Tracey Hennessey will be speaking to the Junior Lawyers Division(South Hampshire)  about Chasing your career goals

No.18 are delighted to announce that Tracey Hennessey (2001) will be joining the Juniors Lawyers Division (South Hampshire) panel discussion  together with Kath Shimmin (Partner and Gender Equality Champion at Blake Morgan), Mary Siddall (Employment Law Consultant and Mediator at ADR Group) and Azmi Quarishe (Magistrate and Solicitor at Hampshire County Council) on  Wednesday 16 January 2019 at 6.30pm

The  panel will cover a number of topics including their careers and experiences in the legal profession, how junior lawyers can achieve their career goals and what differences junior lawyers can make to gender equality in the profession.

Full details of the programme are on the attached booking form and we hope to see as many of you there as possible

For further details contact the Committee oncommittee.shjld@gmail.com, alternatively please do not hesitate to contact us in chambers

Click here to view Tracey Hennessey's full profile

News Flash :Slow disclosure of medical records under DPA /GDPR

In a recent care case, medical records of one of a later joined party was requested from her GP by the her solicitor with appropriate authority.  The GP replied that under GDPR they were entitled to 42 days within which to respond.  The mental health of the party was in question, and the proceedings were delayed (there were other minor reasons for delay too).

S54 DPA 2018  states Meaning of “applicable time period” is as follows:-

(1)  This section defines “the applicable time period” for the purposes of sections 45(3)(b) and 48(2)(b).

(2)  “The applicable time period” means the period of 1 month, or such longer period as may be specified in regulations, beginning with the relevant time.

S45 refers to the right of access by the subject, and S 48 refers to informing of the grant or refusal.

In the current case the GP stated 42 days but I can find no reference to 42 days in either the act or  the EU directive, or other regulation, but 28/42 days may be a delay too long in any event.

FPR provides some guidance as to disclosure.  (Formerly subpoena ad duces tecum) FPR 24.2 (1) reads:-

Witness summonses

24.2.—(1) A witness summons is a document issued by the court requiring a witness to—

(a)  attend court to give evidence; or

(b)  produce documents to the court.

Rule 24.3 et seq recite the procedure etc

See also FPR 21.2 (derived from CPR 1998 r31.17).  It is of relevance, but note the words in bold, it reads:-

21.2.—(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2) The application—

(a)  may be made without notice; and

(b)  must be supported by evidence.

(3)  The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs.

(See also the helpful footnotes to r21 & 24 in the Red Book, and including SCA 1981 s 34)

If medical records are needed quickly, especially if there is a listed hearing approaching, an application pursuant to FPR r24 may be useful.  Whilst most GP’s or their practice manager would not want to go to court, the above may be a useful sledge hammer to crack the nut, and disclosure may be produced before any ordered date to avoid court attendance, the order being suitably worded for that eventuality. 

In my experience busy GP’s have always been slow in producing medical records, the excuse being resources.  But CA s1 (2) states delay is likely to prejudice the welfare of the child and that has to be remembered.  The alternative of reciting a preamble in the order that the judge requests disclosure by a certain date may not have the same desired effect.

Click here to view Gary Fawcett's full profile

No.18 Chambers are delighted to welcome our new Junior Clerk Christine MacFarlane

No.18 Chambers are delighted to welcome our new Junior Clerk Rebecca Burns . Christine became a clerk in Chambers in August 2018 . Her principal responsibility is the day to day running and maintenance of the diary and case management; together with the collection and negotiation of fees.

Christine has developed skills in identifying client needs. She is gaining acute knowledge of the barristers’ practices and is always available to ensure that you are offered suitable counsel.

Christine has a dual role in the Clerks' Room: assisting with the day to day diary management, smooth running of Chambers and marketing initiatives.

Outside work, Christine enjoys dog walking, the gym and family.

Stop Press :No.18 Barristers Chambers increases recognition in the annual Legal 500 rankings

No.18 Barrister Chambers are delighted to announce we have increased our recognition in the annual Legal 500 rankings. The Legal 500 assesses law firms throughout the country and this year No.18 Barristers Chambers have been named  as one of the recommended sets on the Western Circuit  for Family, Employment, Personal Injury and Public Law (particularly Immigration). Furthermore, four barristers have been individually acknowledged in the "Leading Juniors" list for their work in Family law & Children, Immigration and Employment.


Legal 500 Overview:

No.18 Barristers Chambers houses approachable barristers, who have particular expertise in Family work, with other notable strengths including personal injury, employment and public law, with immigration matters prominent in the case of the latter. The clerks are always on-hand to assist, and senior clerk Mark Windebank leads an ‘excellent’ team.

Family and children law : (Western Circuit - Leading juniors)

No.18 Barristers Chambers strength in family has seen an ‘uptick in complex private law children work regarding care, placement and adoption proceedings. Matrimonial finance is another core area of expertise’. (2018)


Lee Young  (1991): ‘Steadfast and committed to his cases (2018) Professional, reliable, and conscientious(2017)’ ‘A reliable barrister, who gets results’ (2016).

With over 20 year of experience of public law proceedings Lee is regularly instructed by local authorities, parents, intervenors, extended family members  and by solicitors acting for children in a wide range of complex and demanding cases . Lee is experienced in cases involving serious non-accidental injuries, sexual and physical abuse, neglect, complex expert and medical evidence.

He also has a wealth of expertise in cases with international elements such as moving children across international borders, ‘miracle baby’ cases, sexual abuse, severe neglect and mental health issues of a psychiatric and psychological nature.

Nigel Cholerton (2007) (admitted as Solicitor 2004): Very experienced in a broad range of family law matters’ (2018)  ‘He thinks outside the box to conceive new ideas’ (2017) ’... a real passion for the work he undertakes.’ (2016)

Nigel is an established Family Practitioner with significant experience in care proceedings.  He is regularly instructed to attend emergency protection orders, interim care orders and multi-day complex findings of fact and final hearings with cases involving sensitive sexual abuse or non-accidental injury.  Nigel appears for parents, guardians, Local Authorities and Intervenor’s.

Nigel also has a strong practice in matrimonial finance and property disputes and frequently attends all hearings during the course of proceedings including MPS applications, final hearings and enforcement at all levels.  In addition he is regularly asked to advise on complex matters of both matrimonial finance including Barder appeals

Laura Baines (2007): ‘She is quick to grasp the essence of a case.’(2018)

Laura has acted for the local authority, parents and Guardians as well as the children themselves in public law family matters. Laura accepts instructions in all public family law matters and has undertaken a range of hearings, most recently appearing in the High Court. She frequently appears in interim fact finding and final hearings involving care and supervision orders, section 8 orders, injunctions and matters of jurisdiction.

Laura also accepts instructions in all private law children matters and has undertaken a range of hearings involving child arrangement orders, specific issue and prohibited steps orders involving preventing taking the child out of the jurisdiction. Laura represents fathers and mothers as well as the children when the need has arisen for their separate representation. Laura has experience in dealing with private law children matters relating to forces personnel.

Employment : (Western Circuit - Leading juniors)

Ian Wheaton is head of the employment team at No.18 Barristers Chambers; recent instructions for the group include discrimination and unfair and wrongful dismissal cases.(2018)


Ian Wheaton (2002) : ‘A flexible and approachable barrister’(2018) ‘Very experienced in discrimination cases’ (2017) ‘A strong advocate, who is quick on his feet and robust with opponents.’(2016)

Ian has practised in the Employment Tribunals since 1996 representing clients firstly as a lay representative and then as a barrister since 2002. He has dealt with  the full range of dismissal, discrimination and breach of contract cases that appear before the Tribunals. He has had notable successes in equal pay matters and sex discrimination cases. He is known for robust trial advocacy and common sense advice to clients. and developed a speciality in whistleblowing claims.

Ian’s employment practice sees him represent both employers and employees, primarily in “whistleblowing” claims involving disclosures made under the Public Interest Disclosure Act 1998 in addition to the usual range of tribunal claims such as unfair dismissal constructive dismissal and discrimination claims.

In his most recently reported cases, Co-operative Limited v Baddeley [2013] All ER (D) 333 (Jul) and [2014] EWCA Civ 658 Ian represented an employee in the Employment Tribunal, then that the Employment Appeal Tribunal and then again in the Court of Appeal, (opposed by Mr Bruce Carr QC in the EAT and CA) where it was remitted to a fresh Employment Tribunal in a case involving potential lifetime losses consequent upon dismissal for making alleged protected disclosures.

Immigration (Western Circuit - Leading juniors)

Laura Baines at No.18 Barristers Chambers has established expertise in immigration cases, in which she is well known for representing both appellants and the Home Office (2018)

Laura Baines (2007): Very experienced in immigration and asylum matters.’ (2018) ‘Recommended for immigration cases’ (2017)

 

Laura has a dual practice of both Family & Immigration, which allows her to advise in family cases where there are complex immigration issues. Laura frequently appears in the first tier and upper tribunals in relation to immigration and asylum matters. She conducts a range of preliminary, final hearings and judicial reviews, having acted for both the Home Office and the Appellant. This gives her an advantage when advising clients as to the appropriate course of action. Laura in particular has had conduct of tier 1, tier 2, tier 4 points based system applications, article 8 applications, EU applications, trafficking cases, asylums from Sri Lanka, Bangladesh, Nepal and Trinidad. Laura is happy to provide written advice and draft pleadings such as grounds of appeal for first tier tribunal appeals, upper tribunal appeals and judicial reviews.

Notable cases: IA/28304/2013, where IJ Robinson found the Home Office failed to prove the general ground of refusal under paragraph 322(1A) of the Immigration Rules. The Judge took the view that the evidence produced by the Home Office to show that the academic certificate submitted by the Appellant in support of his application for leave to remain was inadequate

No.18 Chambers are delighted to announce Claire Hook's re-appointment on the South Hampshire Junior Lawyers Division Committee

No.18 Chambers are delighted to announce Claire Hook's re-appointment on to the South Hampshire Junior Lawyers Division Committee for another year. Claire will be sharing the  roles of both Bar Representative & Events Representative.

STOP PRESS: New guidance on children orders have been issued along with changes to PD27A

On 6th June 2018, the President of the Family Division issued guidance promulgating standard children and other orders for general use. Shorter Public and Private Law Case Management directions orders have been produced to assist those at court. Helpfully such orders have been colour coded, showing sections of amendment and editorial comment.

For the President’s guidance and the zip file containing the orders, click below:

https://www.judiciary.uk/publications/practice-guidance-standard-children-and-other-orders/

In addition, there is a new practice direction on bundles which will come into force on 23rd July 2018. Such practice direction should be read in conjunction with the Public Law Outline (PD12A) and Child Arrangements programme (PD12B).

The three main changes are-

  1.  - Introduction of page limits for certain types of documents
  2.  - Further requirements in relation to bundles of authorities
  3.  - The inclusion of various provisions making clear that PD27A applies, with certain modifications, to electronic as well as to paper bundles.

For more information, on the revised practice direction, click below:

https://www.familylaw.co.uk/news_and_comment/draft-revised-practice-direction-27a-family-proceedings-court-bundles-universal-practice-to-be-applied-in-the-high-court-and-family-court#.WywdyS2ZNmA

Click here to view Katherine Henry's full profile

STOP PRESS : Proceedings concerning parents with a learning disability

On 10th April 2018, Sir James Munby issued guidance in relation to parents with a learning disability. The purpose of this ‘is to bring to the attention of practitioners and judges, and to commend for careful consideration and application by everyone, the very important “Good practice guidance on working with parents with a learning disability” issued by the Working Together with Parents Network and the Norah Fry Centre in September 2016’.

The guidance highlights recent case law (Re D (Non-Availability of Legal Aid) (No 2) [2015] EWFC 2, [2015] 1 FLR 1247, and again in Re D (Adoption) (No 3) [2016] EWFC 1, [2017] 1 FLR 237) and the Family Procedure Rules Part 3A and PD3AA.

For the President’s guidance, click below

https://www.judiciary.gov.uk/publications/family-proceedings-parents-with-a-learning-disability/

Click here to view Katherine Henry's full profile

No.18 Chambers are delighted to welcome our new Junior Clerk Laura Hepburn

No.18 Chambers are delighted to welcome our new Junior Clerk Laura Hepburn . Laura became a clerk in Chambers in April 2018 whilst studying part-time for her Law degree.  Her principal responsibility will be assisting Mark and Rebecca with the day to day running and maintenance of the diary and case management; together with fee collection

Laura  will be developing her skills in identifying client needs, together with her acute knowledge of the barristers’ practices and will always be available to ensure that you are offered suitable counsel.

Laura will have a dual role in the Clerks' Room: assisting with the day to day diary management, smooth running of Chambers and administrtaion. Outside work, Laura enjoys socialising and spending time with her Friends and Family

No.18 proud to be walking in the Southampton Legal Walk for third year running - Please donate...

No.18 are proud to announce that for a second year running we are walking in the Southampton Legal (10 km) Walk on Monday 25th June leaving at 5:30pm starting from Southampton Combined Court Centre, London Road.

What is the walk?

The walk is an amazing opportunity to raise much needed funds for access to justice all whilst exploring the vibrant city of Southampton.

The Southampton Legal Walk has a fantastic community  feel and we hope to  see lots of others from the judiciary, law firms,, government departments, in-house legal teams - their friends, family and even a few dogs!

Why we walk

The work of the South West Legal Support Trust is now, more than ever, vitally important to ensuring access to justice for all remains possible. By joining this fundraising event we arel be supporting some of the most vulnerable members of your local community by raising money for much needed advice and support.

How you can help

By clicking on the below  link and donating whatever you can

http://uk.virginmoneygiving.com/No18Chambers

Hope to see you along the route..

No.18 Chambers Welcomes New Tenant – John Franklin (2016)

No.18 Chambers is delighted to announce that John Franklin (2016) has accepted an invitation to join Chambers following the successful completion of his Pupillage .  John will be joining our Civil &  Family team.

John joined chambers following successful completion of his pupillage in April 2018. John enjoys an extensive oral and written practice encompassing all aspects of civil and family law. John previously served as an engineer in the Royal Navy where he gained graduate and postgraduate science and engineering qualifications and became professionally registered as an Incorporated Engineer.   John converted to law in 2014 and gained a distinction for his Graduate Diploma in Law before going on to complete BPTC in 2016. He continued to study part-time throughout pupillage and is in the latter stages of the LPC MSc in Law, Business and Management.

His continuing studies have not only augmented his considerable legal knowledge and skills but also helped to consolidate many aspects of his practical training during pupillage. It also helped to provide with a unique insight into the business needs and practices of his instructing solicitors.

Before attaining pupillage, John worked as a solicitor’s agent appearing regularly in commercial, personal injury and housing matters.

Click here to view John Franklin's full profile

No.18 Chambers welcomes New Pupil Amelia King

No.18 Chambers is delighted to welcome Amelia King .Amelia is to join Chambers as a pupil in April 2018. She was called to the Bar in 2016 after obtaining a ‘Very Competent’ grade on the BPTC which she studied on a part-time basis whilst working full-time as a Paralegal in a law firm. Following the BPTC she qualified as an ADR Group Accredited Civil and Commercial Mediator. Prior to pupillage Amelia practised as a County Court Advocate and attended court on the Western Circuit for a variety of cases including mortgage repossessions and applications, infant settlements, Consumer Credit Act disputes and general applications under the CPR.

Click here to view Amelia King's full profile

No.18 Chambers Welcomes New Tenant – Sara Chalk (2018)

No.18 Chambers is delighted to announce that Sara Chalk (2018) has accepted an invitation to join Chambers and will be available for work from the 26th March 2018 .  Sara will be joining our Family team.

Sara transferred to the Bar in 2018 from her role as a Legal Executive Advocate working in private practice. Before being called to the Bar, Sara worked in private practice for 10 years dealing with a range of matters including conveyancing, wills and probate, crime and family matters. In addition to working in private practice, Sara has worked in-house for a Local Authority undertaking litigation and advocacy relating to public law children matters. Sara has spent the last 8 years specialising in family matters which is something she really enjoys and this is the key focus of her practice. Sara is well known on the Western Circuit. Sara has extensive experience of dealing with vulnerable clients and is known for her conscientiousness, empathy and work ethic

Click here to view Sara Chalk's full profile

STOP PRESS: Restrictive Covenants in Employment Contracts

Every business has information that is confidential and is vital to both their success and operation, whether that be knowledge of your business clients/customers with whom they became connected , internal processes, business strategies or technology. For any competitor in your market this information can be attractive and may help to gain a competitive edge. Certain employees may have such information and, in these situations, the most effective way to protect your business would be via a restrictive covenant.

This is usually a clause in an employee’s contract that is designed to help protect your business  against the use of its confidential information by former employees. This may deter employees from joining competitor and competing against their ex-employer or competitors from poaching your staff.

The attached article gives a brief overview of;

  • The four main types of Restrictive Covenants:
  • What Are Restrictive Covenants There To Protect?
  • Implied terms of confidentiality
  • When Was the Covenant Entered Into?
  • Varying Contracts Of Employment To Include A Restrictive Covenant
  • How Long will the Covenant be valid for?

Click here to download the Notes

Should you have  any queries or questions resulting from the notes, or just want to simply pick Ian’s brain .  Please feel free to contact him either by e-mail on ianwheaton@no18chambers.com or by calling him in Chambers on  02380 736812

Click here to view Ian Wheaton's full profile

No.18 Barristers Chambers Sponsor The Hampshire Law Society Annual Dinner

No.18 Barristers Chambers are delighted announce we are supporting The Hampshire Law Society Annual Dinner on the 17th May 2018.

The evening will take place at the prestigious Hilton at the Ageas Bowl.  With Pre-dinner drinks being served  and the opportunity to do some beer tasting from a local micro brewery and Hampshire food producers. This will be followed by  a sumptuous 3 course meal prior to the entertainment, the after dinner speaker (BBC presenter and naturist Chris Packham )and presentation of the Legal Awards 2017.

For more details please see www.hampshirelawsociety.co.uk

No.18 Chambers Welcomes New Junior Clerk: Rebecca Burns

No.18 Chambers are delighted to welcome our new Junior Clerk Rebecca Burns . Rebecca became a clerk in Chambers in January 2018 after achieving an Upper Second Class BSc (Hons) Degree in Natural Sciences, majoring in Mathematics and Biology.  Her principal responsibility will be the day to day running and maintenance of the diary and case management; together with fee negotiation.

Rebecca will be developing her skills in identifying client needs, together with her acute knowledge of the barristers’ practices and will always be available to ensure that you are offered suitable counsel.

Rebecca will have a dual role in the Clerks' Room: assisting with the day to day diary management, smooth running of Chambers and marketing initiatives. Outside work, Rebecca enjoys netball, cycling and listening to Taylor Swift.

No.18 Chambers Welcomes New Tenant – Claire Hook (2010)

No.18 Chambers is delighted to announce that Claire Hook (2010) has accepted an invitation to join Chambers .  Claire will be joining our Family and Civil teams .

Claire joined Chambers following the successful completion of her pupillage in October 2017. Claire enjoys a mixed common law practice. Prior to pupillage, Claire worked for an insurance company in fleet motor claims and as a public liability claims handler before becoming a Solicitor Agent dealing with civil and commercial litigation, including consumer credit, personal injury and housing matters. Her family practice includes private and public child law as well as applications for injunctive relief and ancillary relief matters.

Click here to view Claire Hook's full profile

No.18 Barristers Chambers Jointly Sponsor The Chartered Institute of Legal Executives Bournemouth and District Branch 86th Annual Dinner

No.18 Barristers Chambers are delighted announce we are supporting The Chartered Institute of Legal Executives Bournemouth and District Branch 82nd Annual Dinner on the 8th December 2017. For more details please see www.badcilex.org.uk.

No.18 Barristers Chambers Jointly Sponsor Ridge Runner OCR

No.18 Barristers Chambers are delighted announce we are supporting Ridge Runner OCR. Ridge Runner made its debut on the 1st and 2nd October 2016. It is an exciting, muddy and challenging 10km cross country obstacle race taking part on Saturday 30th September 2017 at the Broadlands Estate in Romsey. Over 500 runners will be braving the course to face a range of obstacles including climbing walls and fences, jumping lily pads across a lake, monkey bars, water and mud pits and many more including the challenge of the half pipe! They have Dared to Accept the Challenge and embrace the fun and mud

Please check out their website www.ridge-runner.co.uk or their Facebook page for more info https://www.facebook.com/ridgerunnerocr

Tracey Hennessey interviewed on UK Talk Radio

On Thursday 28th September Tracey Hennessey is to appear on UK Talk Radio speaking about Chambers, the legal industry and the ever evolving role of Barristers. To hear the interview, please click on the attached link.

Click here to view Tracey Hennessey's full profile

Katherine Henry (2008) is published in family affairs with article on speaking at to speak at the World Congress on Family Law and Children Rights

Following  Katherine Henry (2008) speaking at the World Congress on Family Law and Children Rights in Dublin in June 2017, we are delighted to announce that she has been published in family affairs writing on her experience

If you have any questions or queries surrounding Katherine’s Practice or Chambers and the we undertake please do not hesitate to contact  Mark Windebank (Senior  Clerk) or Rebecca Brown (Junior Clerk) on 023 80 736812 or contact us at clerks@no18chambers.com

Click here to view Katherine Henry's full profile

Barney Large published in Daniel Barnett’s Employment Bulletin:

No.18 are delighted to announce that Barney Large has been published in Daniel Barnett Employment Bulletin discussing  Can Claimants doing different work bring equal pay claims on the same ET1 claim form? To read the full article please click here 

Click here to view Barnaby Large's full profile

No.18 Chambers Appoints new Head of Chambers

No.18 is delighted to announce  the appointment of our Head of Chambers Tracey Hennessey. After years of dedicated service as Head Of Chambers, Ashley Ailes is standing down. He remains a valued member of chambers, continuing to practice. On behalf of all members, the new Head of Chambers offers Ashley sincere thanks for his unfailing commitment, leadership and hard work throughout the years

Click here to view Tracey Hennessey's full profile

NEWS FLASH : The blame game…is it time to move to no fault divorce

In Owens v Owens [2017] EWCA Civ 182 the Court of Appeal has refused a wife’s appeal on the grounds of her husband's unreasonable behaviour.

The parties married in 1978 and separated in 2015. They had two children. The wife petitioned for divorce on the grounds that the marriage had broken down and that her husband "has behaved in such a way that [she] cannot reasonably be expected to live with [him]” (paragraph 1). The husband contested her application.

Sitting in the Central Family Court, His Honour Judge Tolson QC considered “"that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy. I would not have found unreasonable behaviour on the wife's pleaded case. As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that” (paragraph 46). The wife appealed.

The matter came before Sir James Munby, Lady Justice Hallett and Lady Justice Macur. The President stated that “Mr. Marshall complains that the effect of Judge Tolson's judgment is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down” (paragraph 83).

However despite such marriage, the wife’s appeal was refused. The President considered that “the simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b). It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the very foundation of countless petitions and decrees” (paragraph 94).

Lady Justice Hallett confirmed that she had come to the conclusion “with no enthusiasm whatsoever” (paragraph 99) and urged “the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed” (paragraph 102).

 It remains to be seen whether the case will progress to the Supreme Court. However, the decision has clearly raised the question of a change in the law and whether it reflects modern day realities.

Has the time now come for Parliament to end the blame game?

Click here to view Katherine Henry's full profile

Barney Large published in Daniel Barnett’s Employment Bulletin:

No.18 are delighted to announce that Barney Large has been published in Daniel Barnett Employment Bulletin discussing  Can a Claimant successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010? To read the full article please click here 

Click here to view Barnaby Large's full profile

Legal Walk for third year running - Please donate...

No.18 are proud to announce that for a third year running we are walking in the Southampton Legal (10 km) Walk on Monday 8th May leaving at 5:30pm starting from Southampton Combined Court Centre, London Road.

What is the walk?

The walk is an amazing opportunity to raise much needed funds for access to justice all whilst exploring the vibrant city of Southampton.

The Southampton Legal Walk has a fantastic community  feel and we hope to  see lots of others from the judiciary, law firms,, government departments, in-house legal teams - their friends, family and even a few dogs!

Why we walk

The work of the South West Legal Support Trust is now, more than ever, vitally important to ensuring access to justice for all remains possible. By joining this fundraising event we will be supporting some of the most vulnerable members of your local community by raising money for much needed advice and support.

How you can help

By clicking on the below  link and donating whatever you can

https://mydonate.bt.com/fundraisers/nobarristerschambersteam

Hope to see you along the route..

No.18 Chambers delighted to open London consulting room

No18 is delighted to announce that we have opened a consulting room based in London in order to facilitate meetings for our ever increasing city clients. All correspondence/DX or Post should still be sent to Rownhams House, Rownhams, Southampton, SO16 8LS DX: 96877 Southampton 10 . For more details, please contact our clerks on 02380 736812 /0207 872 5412 or email clerks@no18chambers .com

STOP PRESS: Self Employed Cyclist Runs Rings Round Courier Companies.....

The Central London Employment Tribunal has given judgment in the case of Dewhurst v CitySprint UK Limited in the next decision what may soon be a gargantuan overhaul of the gig-economy.

The case follows closely on the heels of Aslam & Ors v Uber B.V. & Ors in October of last year and sheds a greater light on the impact of contracts which do not reflect the realities of parties working relationships.

CitySprint engages around 3,500 cyclist couriers in the United Kingdom responsible for its courier service. The Company drew up contracts titled “Confirmation of Tender to Supply Courier Services to Citysprint Ltd” which defined these individuals as self-employed contractors.

The courier contracts were signed at the Company’s offices and required those couriers engaged under them to acknowledge key terms making clear the Company was under no obligation to provide work, that couriers could send a substitute to work in their place (if they fulfilled CitySprint’s criteria), that couriers were paid by the job and that if couriers were not working they would not be paid. Importantly couriers were required to acknowledge they were not entitled to maternity, holiday or sick pay.

Ms Dewhurst was one such cyclist, engaged by CitySprint to work in London. She worked approximately four days a week from 9.30am until 6.30pm during which time she would travel between the Company’s clients delivering items with gaps typically of between ten minutes and one hour, with a schedule confirmed by the Company’s controller that morning.

Ms Dewhurst remaining in constant contact throughout the day, receiving updating directions from the Company’s controller throughout the day.

Employment Judge Wage, finding Ms Dewhurst to be a worker for the purposes of s.230(3)(b) Employment Rights Act 1996, determined that the contractual arrangements did not reflect the realities of the parties’ arrangements (in doing so applying Autoclenz Ltd v Belcher [2011] UKSC 41)

What was interesting about the case was not so much the application of Autoclenz but the Judge’s assessment of the substitution clause in the CitySprint’s contracts. In reality, despite its wording, the clause did little more than allow couriers already engaged by the Company to sway shifts.

The Judge reflected on the fact that the acknowledgements and contracts were concluded at CitySprint’s place of work, which with other findings led her to conclude there was an inequality of bargaining power. 

Whilst the case is a first instance decision and not binding, it is likely to guide employment practitioners as they advise and represent clients in this progressing area of law. 

Click here to view Barnaby Large's full profile

Merry Christmas from No18 Chambers

Merry Christmas from all at No 18 Barristers Chambers

xmas2016

News Flash : Katherine Henry (2008) is invited to speak at the World Congress on Family Law and Children Rights

No.18 Chambers is delighted to announce that Katherine Henry (2008) has been invited to speak at the World Congress on Family Law and Children Rights in Dublin next year. 

The conference will be taking place from 4th to 7th June 2017. The World Congress was launched in Sydney, Australia and meets every four years. Katherine will be attending the event and will be presenting in Speaker's Corner with the title: Access to Justice: Myth or Reality?

Katherine Henry ( 2008 ) has a diverse family practice with a keen interest in cases involving children. Katherine has extensive experience in private law matters with a focus on vulnerable clients and domestic violence issues. She takes a client focused approach when dealing with her caseload, providing helpful advice to those that instruct her. In relation to public law matters, Katherine works hard to ensure a strong client relationship, particularly when dealing with sensitive issues.

If you have any questions or queriessurrounding Katherine’s Practice or Chambers and the we undertake please do not hesitate to contact  Mark Windebank (Senior  Clerk) or Rebecca Brown (Junior Clerk) on 023 80 736812 or contact us at clerks@no18chambers.com

Click here to view Katherine Henry's full profile

No.18 Barristers Chambers are excited to announce sponsorship of Trojans R.F.C

No.18 are excited to announce we have sponsored Trojans R.F.C 3rd team together with a pitch side board on the 1st team pitch. We are also delighted to offer a 10% discount on fee’s to friends and family of Trojans R.F.C. For more information with regards to Trojans and the other corporate sponsors please  go to www.trojansrugby.co.uk/

No.18 Chambers Welcomes New Tenant – Robin Shane (2010)

No.18 Chambers is delighted to announce that Robin Shane (2010) has accepted an invitation to join Chambers .  Robin will be joining our Family, Immigration & Property teams .

Robin was called to the Bar in 2010. He is a former Royal Marine and served on operations around the world. He later became a police officer with the Thames Valley police, which sparked his interest in law. He graduated from Oxford Brookes University with a First Class Honours Degree (LLB), achieving the highest degree classification of his academic year.

Robin joined Chambers in 2012. However, he also has extensive litigation experience having recently practiced in-house with a prominent firm of solicitors.

He brings a depth of life experience to his practice. He is able to offer exceptional client care, combined with pragmatism and sound legal judgement.

Click here to view Robin Shane's full profile

No.18 Barristers Chambers gains Recognition in the annual Legal 500 rankings

No.18 Barrister Chambers are delighted to have  gained recognition in the annual Legal 500 rankings. The Legal 500 assesses law firms throughout the country and this year No.18 Barristers Chambers have been named  as one of the recommended sets on the Western Circuit  for Family, Employment and Personal Injury. Further, three barristers individually acknowledged in the "Leading juniors" list for their work in Family law & Children and Employment.

Legal 500 Overview:

The ‘very professional’ members of No.18 Barristers Chambers are ‘very good at what they do’. The set is recommended for family, personal injury and employment work, amongst other areas, and a number of Court of Appeal cases feature in chambers’ recent workload. On the family side, children law cases are the mainstay of the practice, although the set is home to experts in financial remedy and international children matters. ‘The clerking team communicates very well’, and senior clerk Mark Windebank is ‘excellent at finding the best barrister for the case in hand’.

Family and children law : (Western Circuit - Leading juniors)

'The family team  has a number of Court of Appeal cases feature in chambers’ recent workload’... ‘ children law cases are the mainstay of the practice, although the set is home to experts in financial remedy and international children matters’.


Lee Young  (1991) ‘A reliable barrister, who gets results’.

With over 20 year of experience of public law proceedings Lee is regularly instructed by local authorities, parents, intervenors, extended family members  and by solicitors acting for children in a wide range of complex and demanding cases . Lee is experienced in cases involving serious non-accidental injuries, sexual and physical abuse, neglect, complex expert and medical evidence.

He also has a wealth of expertise in cases with international elements such as moving children across international borders, ‘miracle baby’ cases, sexual abuse, severe neglect and mental health issues of a psychiatric and psychological nature.

Nigel Cholerton (2007) (admitted as Solicitor 2004)  ‘He thinks outside the box and has a real passion for the work he undertakes.’

Nigel is an established Family Practitioner with significant experience in care proceedings.  He is regularly instructed to attend emergency protection orders, interim care orders and multi-day complex findings of fact and final hearings with cases involving sensitive sexual abuse or non-accidental injury.  Nigel appears for parents, guardians, Local Authorities and Intevenors.

Employment : (Western Circuit - Leading juniors)

Ian Wheaton (2002) ‘A strong advocate, who is quick on his feet and robust with opponents.’
Ian has practised in the Employment Tribunals since 1996 representing clients firstly as a lay representative and then as a barrister since 2002. He has dealt with  the full range of dismissal, discrimination and breach of contract cases that appear before the Tribunals. He has had notable successes in equal pay matters and sex discrimination cases. He is known for robust trial advocacy and common sense advice to clients. and developed a speciality in whistleblowing claims.

Ian’s employment practice sees him represent both employers and employees, primarily in “whistleblowing” claims involving disclosures made under the Public Interest Disclosure Act 1998 in addition to the usual range of tribunal claims such as unfair dismissal constructive dismissal and discrimination claims.

In his most recently reported cases, Co-operative Limited v Baddeley [2013] All ER (D) 333 (Jul) and [2014] EWCA Civ 658 Ian represented an employee in the Employment Tribunal, then that the Employment Appeal Tribunal and then again in the Court of Appeal, (opposed by Mr Bruce Carr QC in the EAT and CA) where it was remitted to a fresh Employment Tribunal in a case involving potential lifetime losses consequent upon dismissal for making alleged protected disclosures.

Click here to view Ian Wheaton, Lee Young, Nigel Cholerton's full profile

No.18 Chambers Welcomes New Tenant – Sarah Hirech (2012)

No.18 Chambers is delighted to announce that Sarah Hirech (2012) has accepted an invitation to join Chambers. Sarah will be joining our Family, Immigration  Personal Injury & Clinical Negligence, Employment& Property teams .

Sarah became a Tenant in August 2015 after completing her pupillage with Chambers. Prior to pupillage Sarah worked for a year as Assistant Private Secretary to the Advocate General for Scotland in Whitehall. Sarah was called to the Bar in July 2012, after completing a first degree in Applied Business Management at Imperial College London, converting to law and completing the BPTC, obtaining a grade of “Very Competent”. Following the BPTC, Sarah worked for 18 months as a Home Office Presenting Officer in the First Tier Immigration Tribunal, presenting a wide range of immigration cases on behalf of the Respondent.

For more information on her practice please see her individual profile.

Click here to view Sarah Hirech's full profile

Stop Press: The Employment Implications (or Lack Thereof) of Abuse of Migrant Workers

On 22nd June 2016 the Supreme Court (Lady Hale with Lords Wilson, Reed, Hughes and Toulson) handed down probably one of the most significant decisions on the limits of the application of the provisions of the Equality Act 2010 addressing discrimination.

Taiwo v Olaigbe and another; Onu v Akwiwu and another[2016] UKSC 31;  [2016] 1 WLR 2653; [2016] All ER (D) 134 (Jun) on 22nd June 2016 confirms less favourable treatment of a person on the grounds of their status as a vulnerable migrant worker is potentially many things (an actionable tort, a crime or breach of contract) but it is not unlawful discrimination.

The background to the case may be summarised as follows – Ms Taiwo and Ms Onu were Nigerian nationals who travelled to the United Kingdom on domestic migrant visas. Ms Taiwo had entered the country in 2010 with a migrant domestic worker’s visa obtained by her employers, Mr and Mrs Olaigbe. However, it later transpired Mr and Mrs Olaigbe had manufactured her employment history and her contract of employment to secure her passage. On arrival her passport was taken from her. She was required to work in excess of her Working Time Regulations 1999 safeguards without rest breaks provided for by the same. She was paid far less than the National Minimum Wage, sustained huge weight loss from lack of food, was insulted, was slapped and spat at.

Ms Onu’s circumstances were strikingly similar. A Nigerian National, she entered the UK in July 2008 on a domestic worker’s visa obtained by Mr and Mrs Akwiwu who also supplied false information to the UK authorities. Her passport was taken on arrival and she was provided with a contract which threatened referral to the Police and immigration authorities should she abscond within a year. She received no employment particulars and worked an average of 84 hours a week without her Working Time Regulations rest breaks and was paid vastly less than minimum wage. She was repeatedly threatened by her employers until she fled in June 2010.

Both Tribunal Judges made numerous awards in respect of wages and failure to provide employment particulars, with Ms Onu also receiving an award for holiday pay and unfair dismissal and Ms Taiwo receiving an award for failure to provide rest breaks. Both Tribunal’s found as fact that Ms Taiwo and Ms Onu had been mistreated on the ground of their precarious immigration statuses. But, whilst Ms Onu’s claims for discrimination and harassment on grounds of race succeeded on the basis of “a clear link” to her race, Ms Taiwo’s claims for indirect and direct race discrimination were dismissed.

The EAT upheld the Tribunal’s decision in Ms Taiwo’s case and overturned Ms Onu’s discrimination and harassment claims finding her treatment was not inherently bound up in her race but rather her subordinate position as a migrant worker.

The Court of Appeal heard both cases together. In short they found that immigration status could not be equated with nationality for the purposes of either the Race Relations or Equality Acts and mistreatment of migrant workers was not a provision criterion or practice.

The Supreme Court was asked, in respect of direct discrimination only, to resolve the sole question of ‘Whether less favourable treatment of an individual on grounds of their precarious immigration status amounts to race discrimination, specifically nationality?’

On behalf of Ms Taiwo and Ms Onu it was submitted that British nationals have a right of above which cannot be denied. All non-British nationals are potentially subject to immigration control.

Under other legislation including the European Convention on Human Rights and the Crime & Disorder Act 1998 as well as the UK Boarder Agency’s Code of Practice, nationality had been extended to include immigration status and ‘being foreign’.

The Supreme Court sympathised greatly with the Claimants but felt bound to interpret the Equality and Race Relations Acts as self-contained independent statutes unfettered by other legislation or codes of practice. Parliament could have chosen to include immigration status but did not.

The Court was in no doubt that had British Nationals been employed, they would not have been treated so badly. The reason for Ms Onu and Ms Taiwo’s treatment was their nationality but, as demonstrated on the Employers’ behalf, this had nothing to do with the fact they were Nigerian. This dispensed with the direct discrimination claims.

The impact of the decision is a disappointing one (even in the eyes of the Supreme Court Judges dealing with the case) but a timely reminder of the limits of judicial interpretation and the self-contained nature of the Equality Act is a piece of legislation.

Few would disagree that Ms Twaiwo and Ms Onu required recompense for the wrongs afforded to them but it is now clear that, for the time being at least, the jurisdiction of the Employment Tribunal does not offer that recourse.

No doubt the Government will consider whether, at a time when immigration and asylum are topics at the forefront of minds spanning the whole political spectrum, amendment of the legislation is necessary to protect some of the most vulnerable in our society. Indeed, with the impending exit from the European Union, mistreatment on grounds of immigration status will become even more far reaching and provides an unfair technical defence to many unscrupulous employers.

Stop Press: The importance of sibling relationships

In Re N (Children) [2016] EWCA Civ 656, the Court of Appeal allowed a brother to apply for contact for his sister in foster care.

The sister was subject to care proceedings. Both children had been trafficked into the UK. The brother was having limited contact with his sister in the community. The question was whether contact should be unsupervised. The view of the Local Authority and Guardian was that this could take place in the future. However, the brother sought unsupervised contact to take place immediately.

The issue arose as to whether the brother should have been given permission by the court to make an application within the care proceedings for contact with his sister. The brother’s application was refused on the basis that the issue was narrow and the court would consider contact overall when making its final decision.

The Court of Appeal allowed the appeal stating that the brother was entitled to be heard. In the lead judgment Lord Justice MacFarlane said ‘’ This was not an unimportant issue.  Whilst there was some acceptance of the principle of contact, the way it could go forward and indeed the very plan for S at that time in terms of her long-term care had not been settled.  Her brother is, on my understanding of the case, likely to be the most important person in S's life.  He has a view about contact and a view as to what contact is best for S”.

Of importance to the court, was the relationship between the siblings. Four grounds were submitted on behalf of the brother, all of which were accepted. The court stated “…standing back from those grounds, the big point is that this decision about contact between this young man and his 16-year old sister is important.  It may be one of the most important features, looking to the future, for young S.  The relationship with her brother and the ability to rekindle that relationship, it having been put in abeyance for some three or four years, is plainly important both now but, more significantly, for the future.  It will be but a moment before she is an adult and out in the community herself.  She is likely to need a real, live, ongoing, ordinary relationship with her brother.  That is what he wishes to achieve” (paragraph 26).

The case reiterates the importance of family relationships and the need to hear fully any arguments on contact in proceedings.

Click here to view Katherine Henry's full profile

Twelve Month Pupillage

Chambers are now accepting applications for a single twelve month pupillage starting 2nd October 2017. All applications should be made in writing and enclosing a current CV to Barnaby Large. Chambers looks to nurture pupils into tenants to maintain our long established efficient and excellent practice on the Western Circuit. We have two stages to our assessment process - written application followed by second round which is an interview.

Pupillage with No.18 is a fantastic exposure to a broad spectrum of Chambers’ work. Our pupil will be adequately financially supported throughout their first six months, with opportunities to shadow and assist all tenants with their work flow.

Following satisfactory completion of their first six months pupillage, our pupil will be able to undertake their own instructions for which they will be supported by their second six pupillage supervisor and also by the Members of collegiate.

In addition, we are now required by the Bar Standards Board to undertake equality and diversity monitoring in respect of all pupillage applications.

The closing date for applications is the 10th June 2016. Any applications received after that date will not be considered."

No.18 receives Bronze Award from Armed Forces Covenant Employer Recognition Scheme

No.18 is delighted to annouce that we have recieved the the bronze award from the Armed Forces Covenant Employer Recognition Scheme. This award recognsies  the No.18’s pledge to offer a 10% discount  to service personnal for any litigtaion

Helen Nugent (2007) to speak at APIL Annual conference

No.18  are delighted to announce that Helen Nugent, Secretary of the APIL Barristers’ Group, will be speaking at the APIL Annual conference (4th May 2016) on: Working with Counsel.

Click here to view Helen Nugent's full profile

Helen Nugent published in the International Family Law Journal

No.18  are delighted to announce that Helen Nugent has been published along side Carolina Marin Pedreno of Dawson Cornwall Solicitors in International Family Law Journal on their article on “ Legislating against Domestic Violence in Brazil”. Please click on the attached link to read article.

Click here to view Helen Nugent's full profile

No.18’s Pen Competition

As many of your will know we have just had a delivery of  No.18 pens. Some of you have already requested these and might have already received them. If you haven’t received a No.18 pen and wish to enter the competition to win a bottle of bubbly please post on social media (facebook/linkedin/twitter)) and we’ll get a pen sent to you

The rules:

  1. The picture must be legal related in some way (and appropriate )
  2. Must clearly show pen and logo
  3. Your are only allowed to submit 3 attempts
  4. It must be posted on at least two of the three social media sites (facebook/linkedin/twitter)
  5. You must tag No.18 chambers in
  6. The deadline for submission will the 29th April

Happy Snapping

No.18 proud to be walking in the Southampton Legal Walk for second year running - Please donate...

No.18 are proud to announce that for a second year running we are walking in the Southampton Legal (10 km) Walk on Monday 9 May leaving at 5:30pm starting from Southampton Combined Court Centre, London Road.

What is the walk?

The walk is an amazing opportunity to raise much needed funds for access to justice all whilst exploring the vibrant city of Southampton.

The Southampton Legal Walk has a fantastic community  feel and we hope to  see lots of others from the judiciary, law firms,, government departments, in-house legal teams - their friends, family and even a few dogs!

Why we walk

The work of the South West Legal Support Trust is now, more than ever, vitally important to ensuring access to justice for all remains possible. By joining this fundraising event we arel be supporting some of the most vulnerable members of your local community by raising money for much needed advice and support.

How you can help

By clicking on the below  link and donating whatever you can

mydonate.bt.com

Hope to see you along the route..

The No.18 Approach to Personal Injury & Clinical Negligence

In the post-Jackson climate, barristers at No.18 Chambers recognise the various challenges to providing high quality legal services for clients.  We are committed to delivering an exceptional level of advice (whether in writing or in conference), representation and resolution.  Providing a high quality service is central to our ethos: 'committed to our clients’; ‘serious about service’ and ‘always fair on fees’.  

Irrespective of the value or complexity of a claim, we aim to provide a high quality service, with excellent, specialist, tailored advice.

In order to facilitate this No.18 are delighted to introduce seven new schemes:

  • CFAs with a 0% success fee on all PI and Clinical Negligence claims (subject to risk assessment)
  • No Win Low Fee agreements
  • Package Deals
  • Meet the insurance
  • Armed & Police Forces Discount
  • Low income ‘tailored fees’
  • The Advice, Pleading and Support Package

Committed to 0% Success fee on all PI and Clinical Negligence Case

At No.18 we recognise that post Jackson, any success that is claimed by counsel has to come out of the client damages. Committed to maximizing the clients damages No.18 are delighted to commit to a 0% success fee on post-April 2013 CFAs

No Win Low Fee Agreements:

Where a case is not suitable to take under a traditional CFA, No.18 Strives to offer a feasible alternative in order to make Litigation available to those who would otherwise not be able afford it. Individually calculated on a case to case basis Members undertake work in appropriate cases offering No Win, Low Fee. Not all cases are appropriate for No Win Low Fee Agreements and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations

Package Deals:

No.18 are able to offer fee packages in relation to written advisory work, drafting, conferences & litigation (for example a global fee for both a Conference and hearing or drafting and a hearing).

Meet the Insurance:

Where the matter is insurance backed, No.18 will do our utmost to work within the rates agreed with each insurance company and where there are agreed rates (either hourly or fixed) between another Chambers and that insurance firm we will also do our best to match the fees.  We are able to do both in most cases.

Armed  & Police Forces Discount:

We are delighted to  offer reduced fees ((for matters that are paid privately ) for members of the Armed & Police Forces and their dependants, please contact us for more information on our 10% discount for Armed Forces personnel and their dependants

Low income “ tailored fee’s:

We recognise that the economic pressures on some clients require flexibility on fees in order to ensure that they can secure access to high quality legal representation.  We can in most instances provide tailored fees for clients on a low income or who would previously have been eligible for legal aid to assist.

The Advice, Pleading and Support Package

No.18  are delighted to  offer our new Advice, Pleading and Support package to clients in Small Claims  and Fast Track cases where costs are fixed in accordance with the provisions of the CPR: please see below for our table of fees that we offer to do so at a fixed price

Our Barristers will provide at your request:

  • Advice on liability, quantum and evidence;
  • Pleadings;
  • Telephone or (if needed) face to face conference with solicitor and client;
  • Assistance with ad hoc queries by phone or email where reasonably required.

Road Traffic Claims :

Item of Work £1,000 - £10,000 / £10,000 - £25,000

Advice on Liability or Quantum £150 / £225

Advice on Liability and Quantum £200 / £300

Particulars of Claim £150 / £200

Defence/Reply/Part 18 Request £125 / £200

Employer’s Liabilty/Public Liabilty:

Item of Work £1,000 - £10,000 / £10,000 - £25,000

Advice on Liability or Quantum £175 / £250

Advice on Liability and Quantum £225 / £325

Particulars of Claim £200 / £225

Defence/Reply/Part 18 Request £150 / £200
                
We will continue to provide you with outstanding representation for your clients across all areas and at all levels of personal injury and clinical negligence work.          

If you have any questions or queries surrounding these schemes,  chambers, its services or the work we undertake please do not hesitate to contact our friendly and efficient administrative team, either Mark Windebank (Senior  Clerk) or Laura Jackson (Junior Clerk) on 023 80 736812 or contact us at clerks@no18chambers.com


T&Cs for the Package

  1. The package is only available where recoverable legal costs are fixed in the CPR in RTA/EL/PL fast track cases.
    A minimum fee of £150 (plus VAT) will apply.
  2. 3Trial fees are currently allowed as a disbursement under both the Portal and Fast Track Fixed Costs Schemes so we will continue to offer our services in court for trials and interlocutory hearings separately at CPR recoverable rates.
  3. The package is available as a CFA.
  4. Barristers will only do barrister style work as permitted by the Bar Code of Conduct.
  5. Instructing solicitors will provide only the papers necessary for counsel to do the work not the whole file, (e.g. for an Advice on Quantum just the medical report, witness statements/proofs, draft Schedule and relevant supporting documents). In lower value cases the advices may all be in one document rather than separate.
  6. The way in which written advices are provided may be by e-mail, in writing or by fax and will not necessarily be in a formal written and printed advice.
  7. Pleadings will generally be provided by e-mail.
  8. Instructions may be sent to barristers on paper or in electronic format.
  9. If the case exits the Fast Track fixed recoverable costs scheme then normal hourly rates will apply to all work done by the barrister

No.18 Chambers - Fee Structures & Costs

No 18 recognises the need to be fair, flexible, transparent and competitive and we strive to offer premium legal services at competitive prices. Our clerks are always ready to discuss fee structures to meet the client’s budget. Fees are calculated on an individual case basis, taking into account the seniority and experience of the barrister, complexity of the case and the length of time involved in preparation and attending court.

Following the Jackson Reforms, the legal aid cuts and the introduction of issue fees in the Employment Tribunal many clients may be left without legal representation. As part of our commitment to you and your clients, No.18 Chambers have put together  fee structures and payment options  for every eventuality, whether  you act for a company or a client with a lower income.

No.18 Chambers recognise how specialist advice and advocacy are essential in circumstances that can often be unnerving and time consuming for the client.  We as a Chambers are committed to working  with you , the client and the firm  as part of your  team to provide a package of high quality legal advice, professional advisory services and first-rate advocacy.

Whether it’s a Family, Employment, Chancery & Commercial, Immigration, Property , Personal Injury or Clinical Negligence  case chambers can offer a fee package to meet both your and the clients budget, and we are more than happy to try and tailor our fees  to fit. Chambers are able to offer fixed fee’s  with no surprise’s or hidden  extra cost giving your client certainty.

Members undertake work under a variety of conditional fee agreements (CFAs) and in appropriate cases offer 0% success fee. Not all cases are appropriate for CFAs and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations.


Your Fees Structures:

Fair  on Fee’s: Fees Tailored for you and your client:

We as a chambers can offer various fee packages to meet both yours and the clients budget, and we are more than happy to try and tailor our fees  to fit. We aim to remain open, transparent flexible and most importantly approachable. Fee’s are calculated on an individual case basis, taking into account the seniority and experience of the barrister, complexity of the case, any relevant value and the length of time involved in preparation and attending court. Where possible a fixed price for litigation, advisory work and/or drafting can be agreed in advance, providing certainty and assisting the client to budget.

Private Fee Hourly Rates

Fees are calculated on an individual case basis, taking into account the seniority and experience of the barrister, complexity and any relevant value.   

Fixed Fees:

In many cases we are happy to agree a fixed fee for an individual items of work providing certainty to the lay client.  

Maximum Fees:

In many cases we are happy to agree a maximum for an individual items of work i.e. : to ‘cap’ the fee agreed to a ‘maximum fee’ so the client is 100 % of his liability in relation to  fee’s.

Package Deals:

We are able to offer fee packages in relation to written advisory work, drafting, conferences and representation (for example, a global fee for both a conference and hearing or drafting and a hearing).

Meet the Insurance:

Where the matter is insurance backed, we will do our utmost to work within the rates agreed with each insurance company. Where there are agreed rates (either hourly or fixed) between another Chambers and that insurance firm, we will also do our best to match those fees

Armed  & Police Forces Discount:

We are delighted to  offer reduced fees ((for matters that are paid privately ) for members of the Armed & Police Forces and their dependants, please contact us for more information on our 10% discount for Armed Forces personnel and their dependants

Low Income ‘ tailored fee’:

We recognise the economic pressures on some clients that would require flexibility on fees in order to ensure that they can secure access to high quality legal representation.  We can therefore in most instances provide tailored fees for clients on low income or who would previously have been eligible for legal aid.

Conditional Fee agreement: (0% Success Guaranteed)

Members undertake work under a variety of conditional fee agreements (CFAs) and in appropriate cases offer 0% success fee. Not all cases are appropriate for CFAs and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations.

No Win Low Fee Agreements:

Where a case is not suitable to take under a traditional CFA, No.18 Strives to offer a feasible alternative in order to make Litigation available to those who would otherwise not be able afford it. Individually calculated on a case to case basis Members undertake work in appropriate cases offering No Win, Low Fee. Not all cases are appropriate for No Win Low Fee Agreements and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations.

Damage Based Agreements:

At No.18 we recognise that, following the introduction of issue fees in employment cases, new methods of funding need to be found in order to bring claims. No.18 are delighted to offer damaged based agreements as a solution. We are committed to assess cases as to whether Damages Based Agreements are an appropriate recourse of funding for a particular lay client in order to allow them to purse their claim

Legal Aid:

Chambers continues to be committed to undertaking legally aided work and providing the best quality representation to all those who require it.  


Terms and Conditions:

As of 31st January 2013, due to changes in the Bar Code of Conduct and the introduction of the Standard Conditions of Contract for the Supply of Legal Services by Barristers to Authorised Persons 2012, all members of Chambers are willing to accept instructions on ;

  • The Bar Council Standard Contractual Terms
  • COMBAR basis A

Unless any preference is expressed at the time of booking, the booking will be accepted subject to Chambers’ Standard Contractual Terms.

Members of Chambers are willing to consider alternative terms on a case-by-case basis, for further information, please contact the Clerks.

Payment terms:

Each client has different needs and No 18 are delighted to offer 30, 60 or 90 day payment terms or instalments in certain situations (this does not affect our terms & conditions).

Jackson Cost Budgeting rules a problem?

With the  cost rules Cost budgeting is essential and you will no doubt be aware that, as part of the implementation of the Jackson reforms, most proceedings commenced on or after 1 April 2013 will fall into the new costs budgeting regime.

As you know this means that as solicitors you will be obliged to produce a costs budget in the form of new Precedent H. This budget requires you to inform the Court of the level of costs already incurred, but also to estimate future costs , including Counsel's fees up to and including trial. This budget has to be produced as soon as a Defence is filed, with all future estimated costs have to be split into "Phases" – pre-action, issue/pleadings, CMC, disclosure, witness statements, expert reports, PTR, trial preparation, trial, ADR/settlement and contingencies ( i.e interim applications).

So how can chambers help?

Together  as a team, we aim to provide  we are able to offer the following assistance to you:

  • an estimate of Counsel’s future fees at the Defence stage, split into phases as outlined above
  • delivery of fee notes on a regular basis as agreed - with fee notes showing the fee incurred according to the phases as outlined above; and
  • written notification in advance if the estimate of Counsel’s fees for a particular phase are likely to be exceeded. For this  purpose, we suggest that we should be notified when Counsel’s fees  reach 80% of the estimate given.

The No.18’s Employment Solution

Barristers at No.18 Chambers recognise the challenges in providing high quality legal services for clients following the various changes which have made clients more hesitant in paying for legal representation in employment tribunal cases .To assist we remain committed to deliver exceptional advice, representation and resolution.  We base our service on our of being 'committed to our clients’, ‘serious about service’ and ‘always fair on fees’. Exceptional service is the corner stone of our ethos.
 
We believe in providing the same great service whether the case is small or high in value or claim. Lay clients deserve high standards of specialist advice and advocacy regardless of the value of their claim .We also know that our professional clients want our support and assistance to win cases and maximise damages for our clients in all types of cases.
 
In order to ensure this No.18 are delighted to introduce eight schemes ;
 
1- Damage based agreements (Subject to assessment)
2 - No Win No Fee
3-  No Win Low Fee
4 - Package deals
5  - Meet the insurance
6 – Armed & Police Forces Discount
6 – Low Income  “tailored fees”
7 - The  Merits, Advice, Drafting and Support Package

Damage Based Agreements:

At No.18 we recognise that following the introduction of issue fees in employment cases,  new methods of funding need to be found in order to bring claims.   No.18 are delighted to offer damaged based agreements as a solution. We are committed to assess cases as to whether Damages Based Agreements are an appropriate recourse of funding for a particular lay client in order to allow them purse their claim.

Conditional Fee agreement: (0% Success Guaranteed)

Members undertake work under a variety of conditional fee agreements (CFAs) and in appropriate cases offer 0% success fee. Not all cases are appropriate for CFAs and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations.

No Win Low Fee Agreements:

Where a case is not suitable to take under a traditional CFA, No.18 Strives to offer a feasible alternative in order to make Litigation available to those who would otherwise not be able afford it. Individually calculated on a case to case basis Members undertake work in appropriate cases offering No Win, Low Fee. Not all cases are appropriate for No Win Low Fee Agreements and the barrister concerned may decline to enter into a CFA after considering the merits of the claim/prospects of success.  Chambers has a flexible policy on CFAs and will do our best to tailor the agreement to the needs of the case. Our standard arrangements are based on the latest models provided by the Bar Standards Board and specialist bar associations

Package Deals:

No.18 are able to offer fee packages in relation to written advisory work, drafting, conferences & litigation (for example a global fee for both a Conference and hearing or drafting and a hearing).

Meet the Insurance:

Where the matter is insurance backed, No.18 will do our utmost to work within the rates agreed with each insurance company and where there are agreed rates (either hourly or fixed) between another Chambers and that insurance firm we will also do our best to match the fees.  We are able to do both in most cases.

Armed  & Police Forces Discount:

We are delighted to  offer reduced fees ((for matters that are paid privately ) for members of the Armed & Police Forces and their dependants, please contact us for more information on our 10% discount for Armed Forces personnel and their dependants

Low income “ tailored fee’s:

We recognise that the economic pressures on some clients require flexibility on fees in order to ensure that they can secure access to high quality legal representation.  We can in most instances provide tailored fees for clients on a low income or who would previously have been eligible for legal aid to assist.

Merit, Advice, Drafting and Support Package:

No.18  are delighted to  offer our new Merits Advice, Drafting and Support package : please see below for our table of fees offering a  fixed price. In addition No.18 can offer various fee schemes to help meet your lay client budget as detailed below the table of fees

Our Barristers will provide at your request:

  • Merit assessment & Advice;
  • Drafting ET1’s & ET’3;
  • Telephone or (if needed) face to face conference with solicitor and client;
  • Assistance with ad hoc queries by phone or email where reasonably required.

Unfair Dismissal/Constructive Claims :    
        
Item of Work    1 - 10 years call    10 + years call
                                                                                                                          
Merits Assessment     £200- £400 /£350 - £650
                                                        
Initial Advice     £300 -£500 / £450 -£850
                                                        
Drafting ET1      £250 -£450 / £450 -£750
                                                        
Drafting ET3     £250 -£450 / £400 -£750
                                      
Discrimination Claims:         
        
Item of Work    1 - 10 years call    10+  Years call
                                                                                                                          
Merits Assessment     £300 - £500    / £450 -£750
                                                        
Initial Advice      £400 -£600    / £500 -£950
                                                        
Drafting ET1       £350 -£550 / £450 £850
                                                        
Drafting ET3     £350 - £550    / £450- £850

No.18 will continue to provide you with outstanding representation for your clients across all areas.

If you have any questions or queries surrounding these Schemes,  Chambers, its services or the work we undertake please contact our friendly and efficient administrative team, either Mark Windebank (Senior  Clerk) on 023 80 736812 or contact us at clerks@no18chambers.com


T&Cs for the Package

1.            A minimum fee of £150 (plus VAT) will apply.
2.            The package is not available on DBA.
3.            Barristers will only do barrister style (what is barrister style??) work as permitted by the Bar Code of Conduct.
4.            Instructing solicitors will provide only the papers necessary for Counsel to undertakethe requisite work in a orderly format, preferably a ring binder,  with an Index not the whole file. In lower value cases the advice may all be in one document rather than separate.
5.            The way in which written advice are provided may be by e-mail, in writing or by fax and will not necessarily be in a forma  written and printed advice.
6.            Advice and drafting  will generally be provided by e-mail.
7.            Instructions may be sent to barristers on paper or in electronic format.
8.            Counsel reserves the to re-negotiate the fee if there are added levels of complexity

Katherine Henry (2008) wins grant from Bar Council & Family Law Bar Association

No.18 are delighted to announce that Katie Henry has been awarded with a grant from the Bar Council and FLBA to attend the American Bar Association Annual Conference in San Francisco. Katie will be attending seminars and events with American Attorneys and the Judiciary, with a particular focus on family law and the challenges posed across the Atlantic. Katie has been asked to write an article, to be published by the FLBA on her return

Click here to view Katherine Henry's full profile

Shannon Revel (2014 ) wins CBA Award

No.18 are proud to announce thatShannon Revel has won the Criminal Bar Association Bursery Award – a big congratulations from all in Chambers.

Click here to view Shannon Revel's full profile

Shannon Revel (2014) appointed to CPS Advocate Panel

No.18 are delighted to announce that Shannon Revel (2014) has been appointed to the CPS Advocate Panel as a Grade 1 Prosecutor.

Click here to view Shannon Revel's full profile

Stop Press : The Changing Face of Mortgage Regulation

From the 21 March 2016 the European Mortgage Credit Directive (MCD) takes affect and is to be regulated by the Financial Conduct Authority (FCA). This will lead to changes for all those involved in the mortgage process be they lenders, administrators, advisors or intermediaries and will also see changes for house builders and those involved in the buy-to-let market.

The changes will have impact for these involved with both first charge and second charge mortgages and this bulletin seeks to raise awareness of the new regime.

First Charge Mortgage Lenders and Administrators

The changes will see amendment to the Mortgage and Home Finance: Conduct of Business (MCOB) Rules, Training and Competence (TC) FCA Sourcebook and the Prudential Sourcebook for Mortgages (MIPRU). The key changes being:

  • The need to provide a binding offer and seven-day reflection period
  • An adequate explanation of a product’s essential features
  • New disclosure requirements

At a practical level those involved in this area will need to be looking at the following:

  • Whether the conditions attached to existing offers are appropriate
  • The system changes required to provide a European Standardised Information Sheet (ESIS) or Key Facts Illustration (KFI) top-up information
  • How your existing sales process might need modifying to deliver the adequate explanation?

First Charge Mortgage Intermediaries

Along with the changes highlighted above, intermediaries in particular need to be aware of the commission disclosure rules (the right for consumers to ask for information on the commissions paid by different lenders) and remuneration rules (new requirement that remuneration of advisers cannot be contingent on sales targets).

Second Charge Mortgage Lenders, Administrators and Intermediaries

The new regime means that for the first time Second Charge Mortgages will fall inside the remit of the FCA Mortgage Rules and the changes as outlined above in respect of First Charge Mortgages will also apply to Second Charge Mortgages.

Those involved in Second Charges Mortgages will also need to ensure that they obtain the relevant mortgage permissions from the FCA.

On a practical level familiarisation needs to occur as to how the FCA expects firms to deal with customers and conduct themselves throughout the life of a mortgage.

It should also be noted that those second charge mortgages which were regulated under the consumer credit regime on the 20 March 2016 will become a regulated mortgage contract.

House Builders

House builders will often offer shared equity loans or incentives of a similar nature which lead to a Second Charge on the properties concerned. Such loans are now to be covered by the new regime as outlined above with the exception of certain government schemes and loans offered by social landlords.

As such those house builders offering these products will need to look to be authorised with the FCA to carry out such activities or appoint a regulated third-party to administer the loans in certain circumstance.

Consumer Buy to Let Mortgages

Advising on, arranging, lending and administering consumer buy to let mortgages will fall inside the remit of regulation by the FCA.

The MCD defines consumer buy to let mortgage contracts as a mortgage contract not entered into by the borrower wholly or predominately for the purposes of a business carried on, or intended to be carried on, by the borrower.  

The legislation has considered those circumstances which would fall outside this definition and as such the following would not be subject to the new regime:

  • A customer using a mortgage to purchase a property with the intention of renting it out
  • A previously purchased property with the intention of letting it out and neither being inhabited by the purchaser or a relative
  • Those customers who have already purchased other properties which has subsequently been let on the basis of a rental agreement

This bulletin seeks to set out a broad overview of the new regulatory framework for mortgage contracts and readers are advised to seek specific legal advice tailored to their individual circumstances.

James Vatcher (2006)

Click here to view James Vatcher's full profile

No.18 Chambers Welcomes New Tenant – James Vatcher (2006)

No.18 Chambers is delighted to announce that James Vatcher (2006) has accepted an invitation to join Chambers and will be available for work from the 4th January 2016 . James will be joining our Personal Injury & Clinical Negligence, Commercial Chancery & Property teams.

James is developing a broad common law practice with a particular interest in personal injury and clinical negligence. He acts for both claimants and defendants in an advisory and representative capacity. He has experience of appearing in the County Court, High Court and Coroners Court.  James returns to the Bar having been employed by a UK top 40 Law Firm as a Solicitor-Advocate. James has received in the past instructions to act on behalf of several international insurers and their policy holders along with large self-insured organisations. He is able to advise clients both by way of written opinion and in conference and can assist with the drafting of pleadings, witness statements and questions to experts and Part 18 questions.  James is an experienced advocate and can take conduct of Interim Application Hearings, Case Management Conferences, Cost Management Conferences, Infant Approval Hearings and Final Hearings be they contested trials on liability or Disposal Hearings.  James is a well-reasoned negotiator and can assist with the resolution of disputes by way of Joint Settlement Meetings.  Away from Chambers, James enjoys spending time with his young family and walking the family dog in the South Wiltshire countryside.  James is a keen sailor, skier and hiker having climbed Mount Kilimanjaro in Tanzania and trekked in the Annapurna region in Nepal.

Click here to view James Vatcher's full profile

No.18 Chambers Welcomes New Tenant – Shannon Revel (2014)

No.18 Chambers is delighted to announce that Shannon Revel (2014) has accepted an invitation to join Chambers following the successful completion of her pupillage . Shannon will be joining our Family, Commercial Chancery & Immigration teams.

Shannon joined Chambers as a Pupil in November 2014, following completion of a five-week Middle Temple Scholarship placement in Israel, where she worked in an international law firm with clients based in the USA, Israel, the UK and China .Shannon was called to the Bar in July 2014, having achieved a ‘Very Competent’ on the BPTC, with grades of ‘Outstanding’ in advocacy . Having qualified as an accredited civil and commercial mediator, Shannon is able to provide a client-based and practical approach to litigation. Outside of Chambers, Shannon is a keen sportswoman who enjoys canyoning, running, and abseiling.

For more information on her practice please see her individual profile.

Click here to view Shannon Revel's full profile

STOP PRESS : Misuse and abuse of section 20. (Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112)

Sadly we are all too well aware of the delays that the misuse of section 20 can cause.  This mechanism for accommodating children means that as long as their immediate welfare needs are safeguarded they go to the bottom of the list when it comes to local authorities issuing proceedings and getting on with any assessments.  Months can go by with children languishing in foster placements without any attempts being made to return them to the care of their parents.  

Parents in this situation rarely have an understanding of their rights to withdraw consent and when they do seek advice and withdraw their consent they are usually criticised for it.  However, withdrawing consent or threatening to withdraw consent is often the only way to force the hand of the local authority to issue proceedings and for there to be proper oversight of the issues.

Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 the President has again looked at the use or misuse of section 20 by local authorities.  Whilst it is clear that “Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings,” it is not to be used, as it currently is, as a holding position for lengthy periods of time before proceedings are commenced.

The President sets out his view in respect of good practice at para 170.

“It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above:

i)  Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

ii)  The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

iii)  The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

iv)  The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).       

v)  Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

171. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.”

Practitioners beware!!!  On behalf of parents we should no longer be agreeing to fetters on their right to withdraw consent to section 20. We should no longer be offering a period of notice in writing before the parents can withdraw consent.  Such actions are likely unlawful.

Click here to view Tracey Hennessey's full profile

No.18 Chambers Welcomes New Tenant - Tracey Hennessey (2001)

No.18 Chambers is delighted to announce that Tracey Hennessey (2001) (formerly of 12 College Place, Southampton) has accepted an invitation to join Chambers . Tracey is a family specialist and will be joining both our Care and Children Team  and our Court of Protection Team.

Tracey’s practice encompasses all aspects of family law in relation to Children, with a particular specialism in Public Law Care work. Tracey  has a very approachable and friendly manner with clients. For more information on her practice please see her individual profile below .

Click here to view Tracey Hennessey's full profile

Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 – Individual autonomy succeeds against medical advice as to a patient’s best interests

The Court of Protection has ruled that a mentally incapacitated man can refuse lifesaving treatment.

Mr. B, a diabetic with a severely infected leg, refused amputation. Doctors treating Mr. B wished to perform such operation in order to save his life.  The court noted that ‘’without the operation, the inevitable outcome is that he will shortly die, quite possibly within a few days. If he has the operation, he may live for a few years’’ (para 1).

The court considered the principles of section 1 and 2 Mental Capacity Act 2005 and the authorities notably Aintree University Hospitals NHS Trust v James [2014] AC 591.

The Judge was satisfied that Mr B did not have capacity to make decisions (para 34). However, on the balance of interest test, the court considered that it would not be in Mr B’s interest to have the operation. Mr Justice Peter Jackson stated ‘’ I am quite sure that it would not be in Mr B's best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone's behalf and just fighting them. Enforcing treatment in this case would surely be the latter’’ (para 45).

Mr Justice Jackson visited Mr B as to his needs and wishes. It was noted that mental illness of Mr B resulted in him having religious delusions. Despite these being delusions, the Judge noted the importance of religion to him.

The court stated ‘’Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is’’ (para 43).

The case demonstrates the importance of a person’s right to autonomy and the weight that this should hold. Despite evidence of mental illness, the Judge stated that ‘’I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his "fierce independence", and it is this that is now, as he sees it, under attack’’ (para 43).

Click here to view Katherine Henry's full profile

No.18 Welcomes New Tenant

No.18 is delighted to announce; Shannon Revel has accepted an invitation to join Chambers following the completion of her pupillage at the end of November. Everyone at No.18 wishes her every success. For more information regarding Shannon or her practice, please contact Mark Windebank (Senior Clerk) on 02380 736 812 or e-mial clerks@no18chambers.co.uk

Click here to view Shannon Revel's full profile

Laura Baines speaks at the launch of the International Education Forum Executive Business Network

No.18 are delighted to announce that Laura Baines will be speaking at the launch of the IEF Executive Business Network at the Bournemouth Highcliff Marriott Hotel on Friday 23 October. If you would like any further information please see the attached flyer or alternatively if you are interested in attending please contact Gemma Freeman at Lacey’s Solicitors on E: g.freeman@laceyssolicitors.co.uk, T: +44 (0)1202 557256

Click here to view Laura Baines's full profile

No.18 welcomes new junior clerk

No. 18 Chambers is pleased to announce that from 19th October 2015 Rebecca Brown has been appointed our new Junior Clerk. Rebecca has spent the previous three years studying to achieve an Upper Second Class BA (Hons) Degree in Criminology at Southampton Solent University. Rebecca is delighted to join our ever-growing team at No.18 to commence her career in Clerking. Along with Mark Windebank (Senior Clerk), our clerking team strives to deliver an exceptional level of advice, resolution and service; our ethos being, ‘committed to our clients’, ‘serious about service’ and ‘always fair on fees’.

NEWS FLASH : The ‘tragic’ case of Re A (A child) [2015] EWCA Civ 910: Implacable hostility in contact cases

The Court of Appeal has recently considered the ongoing issue in private law children cases of implacable hostility, reaffirming the approach of Re W.

In Re A (A child) [2015] EWCA Civ 910, the child (B), now aged 12, and his Mother had significant psychological and emotional vulnerabilities. The father had initially applied for contact with his son in 2006.  However, the father subsequently withdrew this application due to the stress that this was having on the mother.

The father made a subsequent application in 2010. By this stage, the mother ‘’had developed and consolidated a highly negative and adverse view of the Father to the effect that he was a dangerous man with respect to B's welfare, and B came to adopt that view’’ (para 20).

Four years later, the matter was finally determined before His Honour Judge Atkins on 17th September 2014. HHJ Atkins stated that in relation to the Father ‘’now that he, as I find, presents as a ... calm, thoughtful and caring man, somebody who has a good relationship with his own family, and somebody who does not present a risk to [B].  I consider that he does genuinely care for and want a relationship with [B]." (para 43). However, HHJ Atkins dismissed the father’s application for change of residence and ordered no direct contact, due to the harm likely to be suffered by the child. The father subsequently appealed.

In the Court of Appeal, McFarlane LJ reiterated the provisions now contained in section 1(2A) Children Act 1989 that "it is and should be a given that it will normally be in the best interests of a child to grow up having a full, real and entirely ordinary relationship with each of his or her parents, notwithstanding that they have separated and that there may be difficulties between the two of them as adults" (para 43). He reiterated that the approach to be taken in implacable hostility cases is as per Re W (Direct Contact) [2012] EWCA Civ 999:

  • Where it is in the best interest of a child to spend time with the other parent, then part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be;
  • Where there are significant difficulties in the way of establishing safe and beneficial contact, the responsibility falls on both parents to address those difficulties;
  • All parents have a responsibility to do their best to meet their child's needs in relation to the provision of contact. It is not acceptable for a parent to shirk that responsibility and simply say "no" to reasonable strategies designed to improve the situation in this regard.
  • However, MacFarlane LJ dismissed the father’s appeal, stating that the Judge was right to identify the harm that B would suffer if direct contact was ordered. At paragraph 51, he said ‘’This was a boy who was shortly to be 12 years old.  He was adamantly and consistently saying "no" to any form of contact, even indirect contact, with his father.  The reasons that he was saying "no" may well be subtle and sophisticated, emotionally entangled with his relationship with his mother and the mind-set that he had developed about his father in the period during which he has not been seeing him, but "no" was his approach, and to contemplate moving a 12 year old child from that position to having contact was a formidable obstacle in the way of the Father's application.’’

The Court reiterated the tragedy of the case, not only for the father but also for the child who ‘’ had a warm, easy and close relationship with his father when he was much younger before their separation took place’’ (para 52).

Click here to view Katherine Henry's full profile

STOP PRESS - Scotland to Abolish Tribunal Fees

The Scottish Government, in its programme for the following year "A Stronger Scotland - The Government's Programme for Scotland 2015 - 2016", have confirmed their intention to abolish Employment Tribunal Fees in Scotland next year. The Paper may be found at the following link - http://www.gov.scot/Resource/0048/00484439.pdf"

STOP PRESS - Is a noise induced hearing loss claim a ‘disease’ for the purposes of the costs of a CFA?

In Dalton v British Telecom plc, QBD [2015] ICR 901, the High Court (Phillips J.) considered that a claim for noise induced hearing loss (“NIHL”) was a disease claim, when determining the recoverability and level of success fees in pre-April 2013 CFA funded cases.   

The Claimants brought NIHL claims against the former Defendant employer which were compromised by way of a settlement agreement prior to trial.

The Parties’ agreed a figure in respect of damages; in addition to which the Defendant agreed, in principle to pay the Claimants’ costs of the action. The quantum of solicitors and counsels’ CFA costs were, however, disputed; and in particular the level of success fee which those costs ought properly to attract.  If NIHL was to be regarded as a disease claim, the case would fall within the scope of section V of CPR Part 45; and the Claimants’ legal representatives would be entitled  to a success fee of 62.5% on settlement of claims; this section relating to disease claims settled before trial  (other than for certain irrelevant specified conditions).

Otherwise, a NIHL claim would be classified as an injury and, if 'sustained' on or after 1 October 2004 fell within section IV; attracting a (considerably lower) success fee of only 25%. If sustained before that date, the success fee was not fixed and fell to be assessed by the Court, if not agreed.

On 4th April 2013 and following a number of (first instance) decisions at District Judge level providing inconsistent conclusions, the Regional Costs Judge directed that the issue be referred for determination by High Court Judge as a preliminary issue.

At the High Court, the Defendant contended, in reliance on certain aspects of the aetiology of NIHL and the case of Patterson v. Ministry Defence [2013] 2 Costs LR 197, disease should be given its natural ordinary meaning.  To the layman, this rendered NIHL an injury, not a disease; on the basis that:

i) NIHL is caused by the physical force of excessive noise on the structure of the inner ear, degrading hair cells; rather than regenerate, the hair cells are replaced by scar tissue;

ii) Long term exposure will typically lead to gradual and progressive hearing loss; the symptoms often being first noticed when age-related hearing loss overlays the (earlier) traumatic loss;

iii) However, the damage suffered from each instance of exposure occurs immediately with progressive worsening limited to days or weeks post exposure.

Whereas the Claimants accepted the layman ( with no background in NIHL claims) may well regard NIHL as an injury (rather than a disease);when placed in the proper legislative and medical context, it was clear that the term disease within the rules  had an established meaning sufficient to include NIHL.

Consideration of the legislative history, starting with the Workmen’s Compensation Act 1906; the National Insurance (Industrial Injuries) Act 1946, the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 and the recommendations of the Industrial Injuries Advisory Committee in 1973 (under their statutory powers); plainly indicated Parliament’s intention to classify NIHL as disease claims.

The Court also took into account that CPR 45 Section V’s previous incarnation, which  came into force on 1st October 2005 and had, by convention of  the Court, practitioners and insurers, treated NIHL as a type C disease claim.  The Court also examined the cases of Barker v Corus [2006] 2 AC 572 and Sienkiewicz v Grief (UK) Ltd [2011] 2 AC 299 (SC) both in which  it was observed that loss of hearing claims were to be categorised as disease claims.

Finally, the Court considered a press release from the Civil Justice Counsel and the Civil Procedure Rules Committee; concluding that NIHL should be included in the classification of diseases for the purposes of section V. Applying R v Secretary of State for the Environment Ex parte Spath Holme Ltd [2001] 2 AC 349 and distinguishing Patterson; and thereby favouring a purposive construction the Court outlined that:

a) Occupational deafness had been expressly defined as a disease since 1985, Parliament must therefore have intended NIHL to be a disease for the purposes of the related legislation;

b) NIHL was recognised as an  occupational disease; and accounted for the majority of such claims. It is a paradigm case of such. It was inconceivable, when looked at in its proper litigation context that Parliament did not intend to include NIHL in type C of section V of the current rules;

c) The Civil Justice Council’s press release recorded the ‘industry agreement’ of NIHL as a disease and this likely put the matter beyond any sensible argument.

In the circumstances, NIHL claims plainly fell within the remit of Section V, attracting the higher success fee if settled before trial.

Click here to view Barnaby Large, Helen Nugent's full profile

STOP PRESS – Proactive role should be taken by the judiciary in the absence of representation and funding.

The Court of Appeal has recently overturned the decision of His Honour Judge Bellamy in Re K-H [2015] EWCA Civ 543. Proceedings commenced in the Family Court sitting at Leicester and concerned arrangements for contact between the Father and his children, K and H (now aged 6 and 4). The Mother’s eldest child, Y, alleged that she had been sexually abused by the Father. His Honour Judge Bellamy determined that is was important to consider whether Y’s allegation was true and a fact find was ordered for 14th January 2015, with Y to attend and provide oral evidence. The Mother was legally aided and therefore able to have representation. The Father was in person, unable to obtain legal aid or afford representation.

His Honour Judge Bellamy decided that “(i) it was not appropriate for the father to cross-examine Y (in fact he did not wish to do so); (ii) it was not appropriate for him (the judge) to put questions to Y to test her allegation against the father; (iii) the court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and (iv) the costs of the legal representative should be borne by Her Majesty's Court and Tribunal Service ("HMCTS")” (para 3). Consideration was given to Q V Q [2014] EWFC 31, [2015] 1 WLR 2040 , notably para 79 in the Judgment, where Sir James Munby observed “In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words "cause to be put" in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.”

The Lord Chancellor appealed the decision.  The Court of Appeal upheld the appeal and found there no power for the Judge to order HMCTS to provide funding, disagreeing with the approach taken in Q v Q. At paragraphs 60 and 61, the Court of Appeal stated “In a simple straightforward case, questioning by the judge is likely to be the preferred option and it should present no difficulties. The judge will know what the unrepresented party's case is. It may be helpful for the judge to ask him or her to prepare written questions for the court to consider in advance. Sometimes, unexpected answers may be given to the judge. These may require the judge to ask the unrepresented party to comment on the unexpected answers and to suggest supplementary questions for the Judge's consideration. In my view, in the present case, which is fairly straightforward, the judge should probably have decided to conduct the questioning himself. I am in no doubt that the nature of this case is such that there were options available to the judge which would have ensured a fair hearing and vindicated the article 6 and 8 rights of the father and K and H’’.

The Court of Appeal acknowledged that there would be cases where it would be inappropriate for the questioning to be undertaken by the judge or clerk- “I acknowledge that there may be cases where the position is different. I have in mind, for example, a case where the oral evidence which needs to be tested by questioning is complicated. It may be complex medical or other expert evidence. Or it may be complex and/or confused factual evidence, say, from a vulnerable witness. It may be that in such cases, none of the options to which I have referred can make up for the absence of a legal representative able to conduct the cross-examination. If this occurs, it may mean that the lack of legal representation results in the proceedings not being conducted in compliance with article 6 or 8 of the Convention. This is the concern expressed by Sir James Munby at para 76 in Q v Q. In order to avoid the risk of a breach of the Convention, consideration should be given to the enactment of a statutory provision for (i) the appointment of a legal representative to conduct the cross-examination and (ii) the payment out of central funds of such sums as appear to be reasonably necessary to cover the cost of the legal representative, i.e. a provision in civil proceedings analogous to section 38(4) of the Youth Justice and Criminal Evidence Act 1999 and section 19(3)(e) of the Prosecution of Offenders Act 1985. (para 62)”.

The decision suggests the need for a proactive role to be taken by the judiciary in the absence of representation and funding. However, the Court of Appeal acknowledged the need for a statutory provision for family proceedings as found in criminal legislation. Given the current stance on legal aid, it remains to be seen whether one will be enacted.

Click here to view Katherine Henry's full profile

STOP PRESS - Helen Nugent elected as Secretary to the APIL Barristers’ Group

No.18 are delighted to announce that Helen Nugent (2007) has been elected as the Secretary to the APIL Barristers' Group. Helen has over 7 years' experience in personal injury (road traffic accidents, public and employers' liability claims), fatal accidents, product liability (including breaches of implied terms under the Sale of Goods Act 1979) and clinical negligence claims (for both claimants and defendants).   In particular, she has extensive experience of catastrophic injury claims; and cases involving complex liability, medical causation and quantum issues.   She has experience of claims against the Ministry of Defence and she is currently developing her practice in occupational illness claims, including but not limited to: industrial disease (such as noise induced hearing loss); harassment, stress and bullying at work.  In addition, Helen has drafted Part 8 pleadings in claims for provisional damages. Helen has also been involved in medical and dental negligence claims and cases relating to complex orthopedic injury, birth injury, delayed and wrongful diagnosis. In addition, she has experience of inquests. Prior to coming to the Bar, Helen set up and developed her own successful legal business: providing paralegal services to barristers and solicitors across the country.  She frequently appeared in the County Court in Case Management Conferences, Costs Management Conferences, Infant Approval hearings and interim applications.   As a linguist, Helen has deployed her language skills in large, high value, international group actions (in Peru and the Côte d'Ivoire); involving cross-border litigation and jurisdictional issues.  More recently, she was selected to take part in the Bar Council, British-Brazilian exchange, with a placement in a law firm in São Paulo.

Click here to view Helen Nugent's full profile

STOP PRESS – JA (meaning of “access rights”) India [2015] UKUT 00225 (IAC)

JA (meaning of 'access rights') India [2015] UKUT 00225 (IAC) Another case showing the natural link between immigration and family law. In this instance, the definition of access rights, which is not defined in the immigration rules and no longer used in the family court. Appendix FM provides an avenue for parents to stay with their children in the United Kingdom in some circumstances. Condition E-ECPT.2.4 states- (a) The applicant must provide evidence that they have either- (i) sole parental responsibility for the child; or(ii) access rights to the child; and (b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child's upbringing. However, there have been no use of the word 'access' in family law since the introduction of the Children Act 1989. The recent decision of JA (meaning of "access rights") India [2015] UKUT 00225 (IAC) has confronted the issue. In JA, the refusal letter of the Appellant stated he had: "not shown that you have access rights to your children only indirect contact.  As a result of this you are unable to take an active role in their upbringing.  Your telephone calls and letters can continue unchanged from overseas as can your child maintenance payments and any contact you have with the children’s school.  As such, you fail to meet the requirements of E-LTRPT 2.4." In JA, the court said "where the Immigration Rules are silent as to interpretation, it may be necessary to refer to the Children Act 1989 (as amended) and other family legislation in order to construe those parts of the Rules which provide a route to entry clearance or leave to remain as a parent" (Headnote 1).The court held that "access rights" can include indirect and direct contact between a parent and child (paragraph 11). This could be shown either by court order or agreement between the parties (paragraph 15). Once satisfied "that a parent has "access rights", an appellant must still prove that he/she "is taking and intend to continue to take an active role in the child’s upbringing" (paragraph E-LTRPT.2.4 (a) (ii)). Whether he/she will be able to do so will depend upon the evidence rather than the nature of the "access rights." However, it is likely to be unusual that a person having only "indirect" access rights will be able to satisfy this provision. In some cases, Tribunals may need to examine the reasons why the Family Court has ordered "indirect" rather than "direct" access (Headnote 4)". The judgment provides useful guidance as to the interpretation of E-ECPT.2.4 and the impact decisions in the family court can have on the tribunal.

Click here to view Katherine Henry's full profile

STOP PRESS - Lee Young Successful in the Court of Appeal; setting aside Care & Placement Orders and remitting decision back - Re: T (2015)

Court of Appeal, Aikens, McFarlane, Bean LJJ, 18 June 2015  (Public law children – Procedure – Judgment – 6-month delay  handing down  ) The parents' argument that the judge had not regarded drastic changes in the family home in the six months between the concluding hearing and the judgment being handed down was successful and their appeal was allowed. In care proceedings concerning 10 of the mother's 15 children there were allegations of long-standing neglect and poor parenting. The threshold under s 31 of the Children Act 1989 was agreed by all parties on the basis of neglect, physical and emotional harm. It fell to be determined whether the parents would be able to provide good enough care. Four of the 10 children had remained living with the parents throughout the proceedings under interim supervision orders. Six mothers after the hearing concluded judgment was handed down and final care orders were made. The parents appealed, primarily in relation to the four children who had remained at home. They claimed that the judge had paid no regard to what had or had not occurred in the 6 month period leading up to the handing down of the judgment. The appeal in relation to the four children was allowed and the final care orders were set aside. The case was remitted to the judge for a reappraisal in light of updating evidence which would be filed by the parties. Pursuant to s 32(1) of the 1989 Act and FPR 12.22 the court's key responsibility was to draw up a timetable to ensure so far as was reasonably practicable that an application could be dispensed within 26 weeks. Where a case could not be completed in that timeframe and further time was required for preparation of the judgment s 32 continued to apply. It was incumbent upon a judge to make express provision for an extension of up to 8 weeks to the timetable for that purpose. In deciding whether to extent the timetable the court had to have regard to the requirements of s 32 and to the need for an extension to be limited to what was necessary to enable the court to resolve proceedings justly and to the need to have regard to the impact of any extension on the welfare of the child. The judge had identified that the question of whether the parents could provide good enough care for the children was at the centre of his deliberations. He was clear that careful thought had to be given to whether it was really necessary to remove the children. He had addendum submissions which noted that the parents had made significant and sustained progress in the 6-month interim period. On the facts, it was necessary for the judge to receive updating evidence from the parties as to the welfare of the children who had remained at home.

Click here to view Lee Young's full profile

Our Newsletter

Articles


Upcoming Events & Seminars

No.18  offer a comprehensive seminar programme throughout the year within their specialist fields. Barristers are also happy to provide bespoke in-house training tailored to client's individual business needs. As an authorised CPD provider with the Law Society and the Bar Council all seminars carry the requisite  points and are free of charge.   

We are always looking to cover more topics, if you feel there is an area that you would like to see covered or to receive details of forthcoming events please do not hesitate to contact our clerks.


Private Law Children Conference 2020

Event Start date: Friday 9th October 2020 - From: 10:30am - To: 4:15pm

Our Private Law Children Conference 2020 is aimed at those currently practicing all aspects of Private Law Children and those who are otherwise interested. We are planning on an informative and relaxed seminar at £35 per person (incl of VAT) for 4 hours’ CPD. We will be holding this seminar on 9th October 2020 at Double Tree by Hilton, Bracken Place, Chilworth SO16 3NG.


 

Past Events & Seminars


Civil Conference 2020

Event Start date: Friday 18th September 2020 - From: 9:15am - To: 4:45pm

Our Civil Conference 2020 will cover a diverse range of subjects and is aimed at all those practising and otherwise interested in civil, chancery or property law.

We are planning an informative and social day at a bargain £35 for 4 hours CPD. The conference will be supplemented with an in-depth information pack.


Virtual Bingo

Event Start date: Thursday 18th June 2020 - From: 6.00pm - To: 7:30pm

Need an antidote for webinars? Join us for Bingo and help us support the invaluable work of Yellow Door


No 18 Chambers Competition to Raise Money for the NHS

Event Start date: Monday 11th May 2020 - To: 4pm

 


Employment Breakfast Seminar 2020

Seminar Start date: Friday 17th January 2020 - From: 8am - To: 10:30am

Join our specialist team of Employment barristers for breakfast, whilst they deliver talks covering the employment law legal issues of the moment. Our employment breakfast 2020 is aimed at all those practicing and otherwise interested in employment law. We are planning on an informative and relaxed breakfast at £15 for 2 hours’ CPD.


Christmas Drinks Evening

Event Start date: Thursday 12th December 2019 - From: 6pm

We would be delighted if you could come along on the 12th December 2019, to the Southampton Harbour Hotel, Ocean Village, Southampton, SO14 3QT (Sat Nav : SO14 3TL) 6pm onwards to join us for drinks and canapés.

Please RSVP to clerks@no18chambers.com or contact us on 02380 736812.


No 18 Chambers Summer Celebrations

Event Start date: Friday 12th July 2019 - From: 6.00pm - To: Onwards

We would be delighted if you could come along on the 12th July 2019 to help us celebrate Katherine Henry being appointed a Deputy District Judge and Amelia King becoming our latest tenant. We will be at the roof top bar at Revolutions, Southampton, 28a Bedford Place ,Southampton SO15 2DB 6pm onwards for cocktails, fizz and canapés.


Private Law Children & Matrimonial Finance Conference 2019

Seminar Start date: Thursday 13th June 2019 - From: 9:15 - To: 4:30

Our Private Law Children & Matrimonial Finance Conference 2019 is aimed at those currently practicing all aspects of Private Law Children & Matrimonial Finance, and those who are otherwise interested. We are planning on an informative and relaxed seminar at £35 per person (incl of VAT) for 5 hours’ CPD. We will be holding this seminar on 13th June 2019 at Double Tree by Hilton, Bracken Place, Chilworth SO16 3NG.


Hampshire Law Society Civil Litigation Seminar

Seminar Start date: Thursday 9th May 2019

No.18 are delighted to announce that  Barnaby Large (2007) Francis Payne & John Franklin (2016) are speaking at The Hampshire Law Society Civil Litigation Seminar on the 9th May 2017. 


Barnaby Large (2007) :  “A Tactical Guide for Employees in Receipt of a Bad Reference”

“Barnaby will be exploring the options available to employees who receive a negative reference both prior to and following receipt by a new employer.

The seminar will consider a brief summary of the current law concerning the topic, steps to try to resolve a dispute without litigation and building a case for trial.”


Francis Payne (2014) :  Possessions

“S36 Admin Justice Act 1970 – does it apply following the expiration of a mortgage term?”    

This seminar will consider briefly the law relating to possession proceedings, whether the court can adjourn/stay/suspend a possession in circumstances where the mortgage term has expired (with reference to LBI HF v Stanford [2015] EWHC 3131) and what steps can be taken by Defendants in order to persuade the court to exercise such its discretion.   


John Franklin (2016): Anonymity Orders and Human Rights

 In Justyna Zeromska-Smith v United Lincoln Hospitals NHS Trust [2019] EWHC 552 (QB),  Spencer J gave insightful guidance on anonymity orders in civil proceedings.

The starting position for civil proceedings remains one of openness, enabling the public to know what is going on and who is involved in a case.  Spencer J’s judgment was notable from a human rights perspective as it recognised the range of Article 10 not only protecting the freedom of the press to report on what they want, but also as protecting journalistic style.

John Franklin examines the issues.


For further details contact Nicola Jennings at the Hampshire Law Society on 023 8044 7022 or email at administration@hampshirelawsociety.co.uk , alternatively please do not hesitate to contact us in chambers


Christmas Drinks Evening 2018

Event Start date: Thursday 6th December 2018 - From: 6pm

No 18 Chambers invites you to join us for a Christmas Drinks Evening.

We would be delighted if you could come along on the 6th December 2018, to The Hotel du Vin , 14 Southgate Street, Winchester, Hampshire, SO23 9EF 6pm onwards to join us for drinks and canapés.

Please RSVP to clerks@no18chambers.com or contact us on 02380 736812.

Dress code : Lounge Suits.


Save the Date : No 18’s Chambers 70th Birthday Celebrations

Event Start date: Friday 7th September 2018

This year see’s the Celebration of No.18 Chambers 70th Year. To celebrate we will be holding a party which we hope you and your partners will all attend to celebrate with us.  Keep your eye on our website and mailshots as the date will be released very soon..!!!


Dorset Resolution Seminar Family Law Update (in Conjunction with No18 Chambers)

Seminar Start date: Monday 2nd July 2018 - From: Registration: 12:45 for a 1pm start to include lunch

No.18 are delighted to announce that Ian Wheaton (2002), Nigel Cholerton (2007), Katherine Henry (2008) & Robin Shane (2012) are speaking at The Dorset Resolution Family Law Update on the 2nd July 2018.  

Ian Wheaton (2002) : Ian will discussing “A consideration of equality, needs and the overreaching principle with reference to the new flb guidance”

Nigel Cholerton (2007) :  Nigel will be presenting  “Relocation - Case Law and its effect "

Katherine Henry (2008): Katherine will be looking at “Vulnerable witness’s in context of pd12j”

Robin Shane (2012) : Robin will be considering Emergency Remedies within Family Law

Full details of the programme are on the attached booking form and we hope to see as many of you there as possible

For further details contact Jane Porter at Dorset Resolution , alternatively please do not hesitate to contact us in chambers


Matrimonial Finance / Trust of Land Conference 2018

Seminar Start date: Friday 22nd June 2018 - From: 9:15 am - To: 4.00pm

Our Matrimonial Finance/Trust of Land Conference 2018 is aimed at all who are currently practicing in all aspects of Matrimonial Finance including families exist outside of the more traditional model of marriage (and civil partnership), and those who are otherwise interested. We are planning on an informative and relaxed seminar at £35 per person (incl of VAT) for 5 hours’ CPD. We will be holding this seminar on 22nd June 2018 at Double Tree by Hilton, Bracken Place, Chilworth SO16 3NG.


Hampshire Law Society Civil Litigation Seminar

Seminar Start date: Tuesday 8th May 2018 - From: From 2pm

No.18 are delighted to announce that Ian Wheaton (2002), Barnaby Large (2007) & John Franklin (2016) are speaking at The Hampshire Law Society Civil Litigation Seminar on the 9th May 2017.  

Ian Wheaton (2002) : Ian will be looking at an update on Qualified One Way Cost Shifting

Barney Large (2007) :  Barnaby will be presenting "Compromising Litigation - An Overview"

John Franklin (2016): John will be considering 'Findings of fundamental dishonesty'

For further details contact Nicola Jennings at the Hampshire Law Society on 023 8044 7022 or email at administration@hampshirelawsociety.co.uk , alternatively please do not hesitate to contact us in chambers


Christmas Drinks Evening 2017

Event Start date: Thursday 14th December 2017 - From: 6pm

No 18 Chambers invites you to join us for a Christmas Drinks Evening.

We would be delighted if you could come along on the 14th December 2017, to the Southampton Harbour Hotel, Ocean Village, Southampton, SO14 3QT (Sat Nav : SO14 3TL) 6pm onwards to join us for drinks and canapés.

Please RSVP to clerks@no18chambers.com or contact us on 02380 736812

Dress code : Lounge Suits


Family Private Law Children & Matrimonial Finance Conference 2017

Seminar Start date: Wednesday 29th November 2017 - From: 9:15am

Our Private Law Children & Matrimonial Finance Conference 2017 is aimed at all who are currently practicing in all aspects of Private Law Children & Matrimonial Finance, and those who are otherwise interested. We are planning on an informative and relaxed seminar at £35 per person (incl of VAT) for 5 hours’ CPD. We will be holding this seminar on 29th November 2017 at Double Tree by Hilton, Bracken Place, Chilworth SO16 3NG.

Click here to download the leaflet and booking form


The Kilimanjaro Kids Charity Netball Tournament

Event Start date: Saturday 12th August 2017

The Kilimanjaro Kids, Helen Nugent and Laura Baines are organising a charity netball tournament in partnership with No.18 Chambers on 12th August 2017. All funds raised will be split between Cancer Research UK and the Devon Air Ambulance Trust (DAART). This tournament is part of a larger fundraising campaign by Helen and Laura to raise money for the two charities, by climbing Kilimanjaro in February 2018.

Click here to download the flyer.


An Evening of Drinks, Canapés & Celebration

Event Start date: Thursday 27th July 2017

No 18 Chambers invites you to join us for an evening of Drinks, Canapés & Celebration on the appointment of our Head of Chambers Tracey Hennessey.

After years of dedicated service as Head Of Chambers, Ashley Ailes is standing down. He remains a valued member of chambers, continuing to practice. On behalf of all members, the new Head of Chambers offers Ashley sincere thanks for his unfailing commitment, leadership and hard work throughout the years.

We would be delighted if you could come along on the 27th July 2017, to The Hotel du Vin , 14 Southgate Street, Winchester, Hampshire, SO23 9EF 6pm onwards to join us for drinks and canapés.

Please RSVP to clerks@no18chambers.com or contact us on 02380 736812

Dress code : Lounge Suits


Employment Breakfast 2017

Seminar Start date: Thursday 29th June 2017 - From: 8.00am - To: 10.30am

“How to Lose at the Employment Tribunal”

Our employment breakfast 2017 is aimed at all those practicing and
otherwise interested in employment law. We are planning on an informative
and relaxed breakfast at £15 for 2 hours’ CPD.

Click here for the leaflet and booking form


Family Public Law Care Conference 2017

Event Start date: Friday 26th May 2017 - From: 9.15am - To: 4.30pm

Our Family Public Law Care Conference 2017is aimed at all who are
currently practicing in all aspects of Public Law Care Family Law, and those
who are otherwise interested. We are planning on an informative and
relaxed seminar at £35 per person (incl of VAT) for 5 hours’ CPD. We will be
holding this seminar on 26th May 2017 at HILTON Southampton.


Hampshire Law Society Civil Litigation Seminar

Event Start date: Tuesday 9th May 2017 - From: 2pm

No.18 are delighted to announce that Barnaby Large (2007), Helen Nugent (2007) & Edward Hurley (2010) are speaking at The Hampshire Law Society Civil Litigation Seminar on the 9th May 2017.  

Barnaby large (2007)  : Barnaby will be discussing the impact of litigants in person on civil proceedings. He will explore the obligations on advocates and litigators as well as the treatment litigants in person will receive from the civil courts.

Helen Nugent ( 2007 ): Helen will be discussing the enforcement in civil proceedings including charging orders, warrants of execution and High Court enforcement

Edward Hurley (2010) : Edward will be discussing Service Charges and a guide to the rights & wrongs of recoverability

For further details contact Nicola Jennings at the Hampshire Law Society on 023 8044 7022 or email at administration@hampshirelawsociety.co.uk , alternatively please do not hesitate to contact us in chambers


Cocktail Making Masterclass

Event Start date: Thursday 30th March 2017 - From: 6pm

 


Christmas Drinks Evening

Event Start date: Thursday 1st December 2016 - From: 6pm - To: 9.30pm

No 18 Chambers invites you to join us for a Christmas Drinks Evening.

Please come along on the 1st December 2016 to the Sea City Museum, Civic Centre, Southampton, SO14 7LP from 6pm - 9.30pm and join us for drinks and canapés.

Please RSVP to clerks@no18chambers.com or contact us on 02380 736812.


Family Law Matrimonial Finance Advocacy Training Seminar

Event Start date: Thursday 6th October 2016 - From: 9:15am - To: 4:30pm

Our Family Law Advocacy Training Seminar is aimed at all who are currently practicing in all aspects of Matrimonial finance and those who are otherwise interested. We are planning on an informative and relaxed seminar at £35 per person (incl of VAT) for 5 hours’ CPD. We will be holding this seminar on the 6th October 2016 at the Hilton Hotel, Southampton.

Click here for the leaflet and booking form


Family Law (Public & Private Law Children)

Seminar Start date: Friday 10th June 2016 - From: 9.15am

Advocacy Training Seminar - 10th June 2016 - 5hrs CPD

Our Family Law Advocacy Training Seminar is aimed at all who are currently practicing in all aspects of Family Law, whether Public Law Care or Private Law Children and those who are otherwise interested. We are planning on an informative and relaxed seminar at £25 per person (incl of VAT) for 5 hours’ CPD. We will be holding this seminar on the 10th June 2016 at HILTON Southampton.

Click here for the leaflet and booking form


Hampshire Law Society Civil Litigation Update

Seminar Start date: Tuesday 17th May 2016 - From: 13:45pm - To: 16:45pm

No.18’s Barnaby Large (2007), Edward Hurley (2010) & Helen Nugent (2007) are pleased to be speaking at; The Hampshire Law Society’s Civil Litigation update on the 17th May  2016 from 13.45 – 1645 pm at The Chilworth Hotel, Southampton For further details contact Nicola Jennings at the Hampshire Law Society on 023 8044 7022 or email at administration@hampshirelawsociety.co.uk , alternatively please do not hesitate to contact us in chambers.


Meet the tenants Drinks & Networking Evening

Event Start date: Thursday 3rd March 2016

No 18 Chambers invites you to join us for an evening of Drinks ,Canapés & Networking to meet our New Tenants

We would be delighted if you could come along on the 3rd March 2016, to The Vestry Restaurant & Bar ,61 Commercial Road, Southampton ,Hampshire SO15 1GG from  6pm onwards to join us for drinks and canapés.

Please RSVP to clerks@no18chambers.com or contact us on 02380 736812

Dress code : Lounge Suits


Conflict Management Seminar & Social for the Re-launch of Young Resolution (Hampshire) supported by N0.18 Chambers

Seminar Start date: Tuesday 23rd February 2016 - From: 4.30pm

Venue : Highfield House, Highfield Lane, Southampton, SO17 1AQ

To  Re- launch Young Resolution Hampshire No.18’s Mr Ian Wheaton and Miss Tracey Hennessey are team up with personal coach, Jessica Strachwitz Hamilton  speak on “ all you need to know about conflict management”. This will prepare you for many types of conflictual situation, at work, with clients and in court.

Join us from 4.30pm, seminar to commence at 5pm Canapés and drinks after with time to network!

For more information please see the attached flyer and booking form or to register  contact Kate Stovold  by e-mail :kate.stovold@trethowans.com or Chambers on  02380 736 812 or e-mail: clerks@no18chambers.com


Family Law Financial Seminar for Hampshire Law Society

Event Start date: Tuesday 2nd February 2016

Mr Ian Wheaton and Ms Katherine Henry are to speak at Hampshire Law Society’s Family Law Financial Seminar on Tuesday 2 February 2016 at the Chilworth Hilton Hotel, Bracken Place, Chilworth, Southampton. Ian  has expertise in the full range of Financial provision including all interim applications that can be made under this ever challenging area of law. He regularly  advises and represents client in high value matrimonial finance, schedule 1 applications and cohabitation disputes. Katherine accepts instructions at both advisory and advocacy stages in matrimonial finance, schedule 1 applications and cohabitation disputes.

This course will include:

  • How many bites of the cherry?
  • A reflection on the case of Vince – v- White [2015] UKSC 14 concerning a wife who brought a financial remedy claim 22 years after the divorce was completed.
  • How long should a firm keep its divorce files? 7 years? 100 years?
  • Strike Out Applications under the Family Procedure Rules

For more information or to register  either contact Nicola Jennings ( Administrator of the Hampshire Law Society) on 023 8044 7022 or e-mail :administration@hampshirelawsociety.co.uk or Chambers on  02380 736 812 or e-mial: clerks@no18chambers.com


Evening of Celebration & Art

Event Start date: Thursday 22nd October 2015 - From: 6pm

No 18 Chambers invites you to join us for an evening of art, celebrating with Ashley Ailes and Gary Fawcett as they mark 40 years at the Bar.

Please come along on the 22nd October 2015 to Rownhams House from 6pm onwards and join us for drinks and canapés whilst enjoying the current art exhibition on show.


Civil Litigation Update

Seminar Start date: Thursday 8th October 2015 - From: 2.00pm - To: 4.30pm

Our Civil Seminar is aimed at all practicing and otherwise interested matters.

We are planning on an informative and relaxed seminar at £10 (incl of VAT) for 2.5 hours’ CPD. We will be holding this seminar on the 8th October 2015 at Rownhams House.

Click here for the programme and booking form.


Immigration: The Good, The Bad and The Ugly

Event Start date: Thursday 21st May 2015

We are organising another Immigration Seminar on 21st May 2015 at 3pm entitled ''Immigration: The Good, The Bad and The Ugly''. The focus will be on advocacy tips for the tribunal as well as an update on changes to Article 8 and the Points Based System. The venue is at Rownhams House, Southampton SO16 8LF The afternoon promises to be both informative and entertaining! If you wish to attend please either email us at clerks@no18chambers.com or call Mark Windebank (Senior Clerk) or Laura Jackson (Junior clerk )  on 02380 736812 to book your place We hope to see you and the team there.


Chambers’ Summer Employment Seminar

Event Start date: Friday 1st August 2014

Chambers’ Summer 2014 Employment Seminar


Chambers’ Summer Commercial Seminar

Event Start date: Wednesday 1st August 2012

Chambers’ Summer 2012 Commercial Seminar

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