The innovative work of St John’s Family Team was highlighted when our family barristers Judi Evans and Kathryn Skellorn QC were invited to speak at a recent conference organised by the President’s Office for the judiciary on Monday 11th May.
Judi Evans, alongside Claire Wills-Goldingham QC of Colleton Chambers, has had key involvement in creating and implementing changes to help Litigants in Person access the Family Justice System – see ‘The way we are: accessing the Courts after LASPO’. Sarah Phillimore, Abigail Bond and Lucy http://www.montauk-monster.com/pharmacy/modafinil Reed, of our family team, have also contributed to these initiatives. At the conference Judi spoke about the Duty Lawyer Scheme, alongside a more recent initiative focusing on the need to provide earlier therapeutic intervention to parents pre care proceedings.
Recently featured in The Guardian newspaper for her work highlighting the need for early therapeutic intervention for parents in care proceedings, Judi Evans was quoted as saying: “Before a child is removed permanently, if something can reasonably be done, then it should be done and at an early-enough stage so that the child has got a fighting chance of his or her own parent being able to engage with help.” She is also helping to organise a conference on the issue of recurrent care proceedings, which will take place on July 9th in Bristol.
Kathryn Skellorn QC spoke about support systems to assist litigants in person, modest means clients and vulnerable court users in England and Wales against a backdrop of the ‘Californian model.’ This has been a piece of on-going research, feeding into projects at the Bristol Civil Justice Centre wherein they are seeking to coordinate the contributions of the Bristol Family Court Judiciary, magistracy, local practitioners and agencies in providing information and assistance to court users.
HHJ Wildblood QC, Designated Family Judge for Bristol spoke about these Bristol innovations.
This conference shines a light on the innovative work that other members of St John’s Family Team are involved in since the legal aid cuts. Our family barristers have been working on numerous projects regarding supporting litigants in person and vulnerable witnesses.
Family barrister Lucy Reed has given a number of lectures and written articles on the impact of Litigants in person, and is the author of ‘The Family Court without a Lawyer: A Handbook for Litigants in Person.’ Lucy led a team of volunteers from St John’s Family Team, which included Christopher Sharp QC, in producing 3 short films giving practical guidance for litigants in person who are preparing for a first court hearing.
Kathryn Skellorn QC recently chaired a seminar addressing vulnerable witnesses and the Advocates’ Gateway in which St John’s Family Team members, Sarah Phillimore, Julia Belyavin and Lucy Reed spoke alongside Naomi Mason of Communicourt and Beth Tarleton of The Norah Fry Institute.
Kathryn Skellorn QC and Sarah Phillimore also recently delivered best practice updates in public law Children Act and Court of Protection work to a dedicated St John’s Chambers Local Government Law Conference hosted by our Public Law Team.
St John’s are proud to sponsor an exciting and ground breaking conference on June 1st ‘Multi-Disciplinary Conference – Is the Child Protection System Fit for Purpose?’ This conference has been organised by St John’s family barristers, Lucy Reed and Sarah Phillimore as part of their work with the Transparency Project, a registered charity which seeks to improve understanding of the workings of the family court. The conference will take place in London and speakers include Sir Mark Hedley, Dr Lauren Devine of UWE and Brigid Featherstone, author of ‘Re-imagining Child Protection’. The conference will bring together a range of perspectives from all those who are part of the child protection system, to examine the current difficulties and challenges which must be met by parents, professional and children alike. To book your place visit the link below.
Abigail Bond is involved, alongside Joanna Lucas (of Albion Chambers) with increasing the access of children and young people to the family courts so that they can see what is happening. Visits of local school children to the Bristol Civil Justice Centre are in progress, the purpose of which is to de-mystify the Family Court whilst also providing an educative experience. This is of particular relevance now that the 2015 Report of the Vulnerable Witnesses & Children Working Group has made several important recommendations to reform and modernise the involvement of children and young people in proceedings which directly concern them.
Kathryn Skellorn QC, Lucy Reed and Sarah Phillimore will also be speaking at St John’s Annual Children’s Conference on 7th July 2015. The conference will be covering topics related to vulnerable witnesses and litigants in person, speakers include Professor Elizabeth Trinder who is the author of ‘Access to Justice? Litigants in Person before and after LASPO’, which was published in this month’s edition of Family Law magazine. Visit the link below to book your place.
Book your place at our Annual Children’s Conference here: Annual Children’s Conference 2015
Book your place at the Multi-Disciplinary Conference here: ‘Multi-Disciplinary Conference – Is the Child Protection System Fit for Purpose?’
View The Guardian article here: Are we failing parents whose children are taken into care?
View LASPO article here: The way we are: accessing the Courts after LASPO
John specialises in all areas of real property. He is frequently instructed on behalf of major land developers and owners, national house builders and large public authorities as well as private clients. John has recently written a book on Land Licences, printed by Jordans Publishing in which Lord Neuberger, the Master of the Rolls, writes the foreword his is also a contributor to the New Law Journal.
John has recently been http://healthsavy.com/product/valium/ described as “One of the Western Circuit’s leaders in property litigation and is an authority on the subject of land licences. ‘He’s very easy to deal with. He’s very down to earth, and very impressive at cross-examination.’” Chambers UK, Chancery (2015) and is lauded for his “considerable real estate expertise … He is particularly user-friendly and wise as can be.” Chambers UK, Real Estate (2015). Legal 500, Property (2015) calls him “Extremely intelligent, resourceful, down to earth and approachable.’
Follow John on Twitter for all the recent updates in Property and Private Client law @Sharples_John.
Matthew Brunsdon Tully, a barrister from our Family Law team, represented the Respondent Wife in the Court of Appeal on 21st April 2015, led by Bruce Blair QC, in what is thought to be the first time the Court of Appeal has considered the appropriate procedure to follow where a party is seeking to make an application in the family court in reliance on confidential information or documentation illicitly obtained, per the Court of Appeal decision in Imerman
The brief facts are as follows. After a 4-day trial, HHJ Howowitz QC made a Final Order in the Central Family Court. Matthew represented the Wife. After the draft Judgment had been delivered, but before it had been handed down, the Husband disclosed that he had acquired information and documentation emanating from the Wife’s email account. He put that material before the Judge by email through his Counsel, which he argued related in particular to the sale of a property in France by the Wife’s parents. The Judge rejected the approach by email and invited a formal application. No application was made at that stage and the Judgment was subsequently finalised and the Final Order sealed.
Subsequently, the Husband applied back to HHJ Horowitz QC to admit the confidential information, for disclosure/inspection, and to re-open the Final Order. The Wife cross applied to strike out / dismiss the Husband’s application, on the basis, inter alia, that the Husband had not come clean as to how the information and documentation had been obtained (other than where it had been obtained from), and had in any event not filed evidence in support of his Part 18 application. She also argued that, insofar as her parents’ property was a relevant consideration, that the sale of the property had in any event fallen through.
HHJ Horowitz QC acceded to the Wife’s application and dismissed the Husband’s applications. The Husband subsequently appealed both judgments and obtained permission from Rafferty LJ in July 2014.
The Court of Appeal (Macur and Rix LJJ) reserved Judgment. It is expected that the Judgment will clarify the extent to which an applicant seeking to rely on, and admit, confidential information or documentation in any application must – in effect – explain fully his or her ‘modus operandi’ as a necessary precursor to any application, whether for injunctive (as in UL v BK), set aside (as here), or other forms of relief.
Kathryn Skellorn QC, Jessica Wood and Abigail Bond, members of our Children Law team, represent competent children in the Court of Appeal opposing contact, assessment or therapy against their wishes. Court of Appeal reiterating in trenchant terms the mutual duties and responsibilities of separated parents to their children.
In Re H-B (Contact)  EWCA Civ 389 Kathryn Skellorn QC leading Jessica Wood acted for a 16 year old, and Abigail Bond acted for a 14 year old in an appeal brought by the children’s father against an order dismissing his application for direct contact with them. The appeal against the order of HHJ Wildblood QC was also opposed by the children’s mother.
Contact had broken down in 2008. In 2010 there had been a fact-finding hearing in which the court rejected as untrue or exaggerated many of the allegations made by the mother and the children against the father, whilst criticising the father for acting unwisely in a number of respects. There followed a lengthy process in which the court attempted a myriad of strategies to unravel the past, including expert input, therapy for the girls (which broke down after only four sessions) in which they were to be informed that their underlying beliefs about their father had been found to be untrue, and mediation between the parents. The proceedings concluded in 2014 with a judgment in which HHJ Wildblood QC set out 13 overwhelming reasons why direct contact should not be ordered. The children were resolutely hostile to contact throughout.
The crux of the father’s appeal was that the case was one of wholesale failure of the family justice system, similar to that of Re A (Intractable Contact Dispute: Human Rights Violations)  EWCA Civ 1104. The Court of Appeal, with the lead judgment given by Lady Justice Black, recognised that although with hindsight it might seem that there were times when the court process could have proceeded with greater despatch or when a different judge might possibly have chosen a different course, the case did not fall into the Re A category: there was nothing in the chronology of the proceedings that would lead the court to criticise the way in which the legal system had handled the case. Further, there could be no challenge to HHJ Wildblood QC’s handling of the 2014 hearing or to the decision that he had made, since he had applied himself to the issues in the case with the ‘utmost care and precision.’ It was wrong to criticise him for not devising a way to challenge the children’s mistaken perceptions when everything that was practical had already been tried, or to interfere with his careful evaluation of the prospects of establishing direct contact and of what would now serve the best interests of the girls. All three members of the Court expressed a hope that the appeal itself would be the catalyst for change in the mother’s approach in particular, with Munby P emphasising that the responsibility and blame for the current situation was the fault of the parents and no one else.
The case raised complex issues surrounding the representation of ‘competent’ children who were aware of the outcome but not of the detail of the allegations dealt with in the fact-finding hearing back in 2010. Black LJ noted that ‘counsel for the girls have had a delicate task and it was clear that they have gone about it with the greatest care. They conveyed the girls’ views very clearly to the court.’
Full judgment is available here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/389.html
David Regan, personal injury and clinical negligence barrister, considers the development of case law where a defendant’s negligence has caused death in his latest article published in the Solicitors Journal.
Appeals in cases currently before the courts are likely to have profound consequences for litigation where the defendant’s negligence has caused death or shortened the claimant’s lifespan.
The Supreme Court is to revisit Cookson v Knowles  AC 556 and may well be asked to revisit Croke v Wiseman  1 WLR 71. Solicitors acting in cases with fatal consequences urgently need to consider the immediate effects of these appeals, whatever their outcome.
Date of death
In late February 2015, the Supreme Court gave permission for a direct appeal on the issue of whether to overturn the much-criticised and now very aged judgment in Cookson. That decision fixed the multiplier for damages for dependency at the date of the death of the deceased rather than trial.
It has been widely criticised, both by the Court of Appeal in A Train v Fletcher  EWCA Civ 413 and the Law Commission’s 1999 report entitled ‘Claims for wrongful death’, as having the result of illogically reducing damages.
In Knauer v Ministry of Justice  EWHC 2553, Mr Justice Bean adopted some of this criticism, but naturally held himself bound by Cookson. On appeal, the weight of existing authority creates a very good prospect that the Supreme Court will overturn the decision, so that the use of the multiplier in cases of fatal accidents accords with the rationale of the Ogden tables.
The difference in the multiplier between death and trial (often a factor of three to four or more) may have a significant effect on the level of damages awarded. Solicitors for claimants presently pleading schedules of loss and negotiating compromise agreements may well wish to hold fire or assume a change in the law. Where the case involves an infant, or other protected party, the court might be reluctant to approve settlement until the law is decided.
In Totham v King’s College Hospital  EWHC 97, the High Court has recently revisited the question of whether a child, whose life has been shortened by negligence, should be able to make a claim for damages for loss of earnings in the ‘lost years’ between the date when they will die as a result of the negligence and their life expectancy but for the breach of duty. This challenges the decision of the Court of Appeal in Croke.
The judgment in Croke has been widely criticised as placing awards of damages for children on a different basis than those which can be claimed by adults. In 2007, in its judgment in Iqbal v Whipps Cross  EWCA Civ 1190, the Court of Appeal criticised Croke but held that it was bound by it, following which appeal to the House of Lords was compromised.
Mrs Justice Laing made many of the same criticisms in Totham, although she naturally accepted that she was bound by Iqbal. She lamented that it appeared that a profitless appeal to the Court of Appeal was likely to be necessary before the issue could be considered by the Supreme Court.
If the appeal progresses, overturning Croke will have profound consequences in such cases as those involving cerebral palsy. Solicitors acting for victims should now consider including claims for lost years in their schedules of loss to anticipate the likely change in the law. This is both because defendants may wish to ‘buy off’ the risk of appeal and due to the necessity of the court approving any settlement.
If Croke is overturned, awards of damages for children whose life is shortened by a breach of duty will be significantly greater than those made where the death occurs immediately at the time of the tort. Parents bringing a claim arising from the death of their child are almost inevitably unable to establish a dependency on the child’s earning potential after the death. However, if Croke is overturned, parents acting as their child’s litigation friend will be able to receive an award for their child’s lost years if damages are awarded while the child lives. This will create a further anomaly in the operation of the Fatal Accidents Act 1976, systematic reform of which is long overdue.
Finally, in JX MX v Dartford and Gravesham NHS Trust  EWCA Civ 96, the Court of Appeal has developed the law so that the making of an anonymity order should become normal in cases where an award of damages is made to a child or protected party. Protected litigants no longer need to show the existence of a specific risk of tangible harm to them, such as a risk of being exploited were it known that they had received a substantial award of damages.
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Matthew Brunsdon Tully, a Family Law barrister, acts for the Respondent Husband in the case of CS v ACS & Anor  EWHC 1005 (Fam) (16 April 2015), in which the wife has applied to set aside a final order for financial remedies made by consent, on the basis of alleged material non-disclosure. Matthew is due to represent the respondent at a 5-day Final Hearing later this year, which is reserved to the President. The applicant has retained both chancery and family counsel.
Whilst the substantive proceedings involve complex issues of tax planning and the variation of offshore trusts, the main issue in this Judgment concerns the procedural route(s) available to an applicant who alleges a consent order is tainted by alleged material non-disclosure.
For a long time the respondent had acted in person and had not taken the point that the applicant was seeking to go behind a consent order by way of an application to set aside in circumstances where Para 14.1 of PD30A of FPR 2010 had inserted a provision into the rules:
“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged” (emphasis added).
The question of the appropriate route to be taken in the light of this change had not been directly considered by the courts since the new rules came into effect. The matter was transferred to the High Court for consideration and was listed http://imagineear.com/pharmacy/ before the President, who had previous experience of dealing with this vexed issue in his magisterial review of the authorities in L v L  EWHC 956 (Fam),  1 FLR 26.
After surveying the authorities, and accepting he was in a position “of some delicacy”, the President ultimately concluded that Para 14.1 had been made (by the previous President) ultra vires. The primary basis for his conclusion was that procedural rules could not fetter the right of an applicant to seek a long-standing remedy (here, set aside), and Para 14.1 did so in that, insofar as it insisted on an appeal in every such case, it therefore added a requirement for permission where no such requirement existed in all such cases before.
In conclusion, therefore, it remains open to a litigant in the family court seeking to challenge a final order made by consent to apply to the level of court which made the consent order, for set aside, including in (but not limited to) cases in which material non-disclosure is alleged. One reason why this is important is because such an applicant will (still, if seeking set aside) not need to persuade the Court that they should have permission to apply. More generally, the case is one of only a small number of instances where a rule or part of a Practice Direction has been declared ultra vires, and this “procedural quagmire”, which Para 14.1 had seemingly resolved, is now being considered – once again – by the Family Procedure Rules Committee.
View full judgment here: http://www.bailii.org/ew/cases/EWHC/Fam/2015/1005.html
The drinks and canapé reception was held at microbrewery Zero Degrees – a venue with a difference. Guests enjoyed Prosecco and a selection of handcrafted beers whilst catching up with colleagues and clients.
“This evening is just a great way to say thank you and to show our appreciation to those we work with” says Practice Manager Annette Bushell.
Over 100 guests attended, amongst them were Solicitors from Lyons Davidson, Clarke Willmott, Foot Anstey, ARAG, New Law, Bevan Brittan, Barcan Woodward, Metcalfes, Withy King and many more.
The evening was a big success and everyone thoroughly enjoyed themselves; “Great party and fabulous canapés!”, “An excellent evening”, “Fantastic venue, good food and good company”.
Find out more about our Personal Injury and Clinical Negligence teams below:
Annette was interviewed for their Spring editorial about Professional Service Companies in Bristol, she discusses the exciting 2015 Personal Injury and Clinical Negligence seminar programme and why potential clients should choose to instruct St John’s.
What makes you guys Special?
St John’s Chambers is one of the largest Barrister’s sets in the South West, says Annette Bushell, Practice Manager of the Personal Injury and Clinical Negligence teams at St John’s Chambers in Victoria Street. We have over 80 members, and 7 Queens Counsel, specialising in all major areas of law, and a client base that is nationwide. Personally, I work with three other clerks to manage and develop the busy practices of 23 barristers. They range in experience and expertise from Silks, and very senior counsel, dealing with the most grave and high-value claims, to junior barristers recently qualified, who are working hard and learning their craft.
Why come to you?
We advise and act for private individuals, businesses and insurers, and all types of public authorities, including central and local government. Our reputation is as the best Set for PI and clinical negligence outside of London, and we pride ourselves on a highly professional but user-friendly approach to our work.
What’s exciting you in 2015?
2015 is shaping up to be a really exciting year in terms of our regular seminar programme, and we have a long-standing relationship with a number of charities for whom we raise funds, including Headway brain injury charity and Action against Medical Accidents (AvMA). This year, for the first time, we are collaborating with Cerebra, the child head injury charity, too. Ultimately, though, it’s our reputation for service that’s the most precious commodity of all, and is one we are working hard to maintain.
Roy Light, a member of our licensing law team, highlights the dangers for local authorities that fail properly to constitute their licensing sub-committees in his latest article published in Local Government Lawyer.
The Licensing Act 2003 (‘the Act’) provides that premises which carry on licensable activities must hold a premises licence to authorise the carrying on of the licensable activities. The Act and its subordinate legislation provide a statutory scheme for the licensing regime. Licensing authorities are created and each is required to establish a licensing committee to carry out the authority’s responsibilities under the Act. A licensing committee may delegate some of its responsibilities to a licensing sub-committee.
In a recent appeal the decision of the licensing sub-committee in a review hearing was challenged successfully on the basis that the sub-committee was not lawfully constituted. This was the third review hearing in respect of the premises. The decision of the first hearing in 2012 was quashed on appeal on the grounds that the review had not been advertised on the authority’s website as required by the regulations made under the Act; the second hearing had to be abandoned part way through when one of the sub-committee members made it clear, or at least gave the clear impression, that she had already made up her mind on the merits of the review before having heard all of the evidence.
The third review went to a hearing in late 2013. Subsequent to the hearing the premises licence holder became aware of the fact that a member of (indeed the person chairing) the sub-committee was not a member of the authority’s licensing committee and, further, was a member of the authority’s executive. An appeal was lodged on the grounds that the committee was unlawfully constituted.
Grounds of appeal
The Appellant contended that a member of what purported to be a licensing sub-committee was not a member of the Respondent’s licensing committee as required under the Licensing Act 2003, ss.6(1), 7(1) and 9(1) and by the Respondent’s own constitution; and was not therefore qualified to sit on a sub-committee of the licensing committee. Further, the same member was a member of the Respondent’s executive and so ineligible for membership of the licensing committee. The sub-committee as constituted had no jurisdiction to exercise the statutory powers under the Licensing Act 2003 and the proceedings should be declared a nullity and the decision of the sub-committee quashed.
Read full article here: Constitution of licensing sub-committees