Our members and staff are taking part in the 4th annual Bristol Legal Walk to raise both awareness and funds for the South West Legal Support Trust on Monday, 22nd September.
HHJ McCahill QC and President of the Law Society, Andrew Caplen will lead the walk at 5.45pm from the Bristol Civil Justice Centre.
The Legal Walks bring together the legal profession and the advice sector to raise much needed funds to support the provision of early, free legal advice to those across the South West who don’t qualify for legal aid and can’t afford to pay for advice.
If you would like to sponsor our team, please visit www.uk.virginmoneygiving.com.
Our family team’s two resident bloggers Sarah Phillimore and Lucy Reed are both involved in an exciting new project aimed at providing balanced and accessible information to the public about the Family Court.
The idea for The Transparency Project came from a blog post
written by Lucy on her Pink Tape blog some months ago, and has resulted in a group of practising lawyers, legal academics and legal bloggers and publishers getting together to make the idea a reality.
The Transparency Project website has recently launched (www.transparencyproject.org.uk) and over coming months the members of the founding group will be refining their goals and making plans for the future of the project. The site already hosts a number of useful blog posts and resources for members of the public looking for information about the Family Court. If you have any feedback about the site, please e-mail:
You can follow the progress of the project on twitter by following @seethrujustice.
The President’s judgment in Q v Q, Re B (A Child) and Re C (A Child)  EWFC 31: latest article from Lucy Reed and Judi Evans
Judi Evans and Lucy Reed, members of our children’s team have recently published an article for Jordans Family Law on the President’s judgment in Q v Q, Re B (A Child) and Re C (A Child)  EWFC 31, where they look at the implications of these cases.
Judi and Lucy acted in the matters of Re B (A Child) and Re C (A Child). Judi acted for the father in the matter of Re B and Lucy represented the mothers in both Re B and Re C.
The President’s judgment in Q v Q, Re B (A Child) and Re C (A Child)  EWFC 31: thinking through the implications
The bare facts in two of these three cases (Re B and Re C) are strikingly similar, but they are no doubt not unique. There will be other cases with different facts but involving equally grave allegations and complex issues, and which require a forensic approach and an understanding of the potentially significant legal consequences of the court’s determination of such allegations within family proceedings – significant both for a parent found responsible of gravely abusive and potentially criminal conduct or for a parent found to have fabricated such allegations. In either instance there is potential for far reaching ramifications – perhaps an effective termination of a direct relationship with a child or a change of residence – and beyond the specific dispute about this child, child protection concerns may impact on the care of other children by that adult, or criminal proceedings may follow.
Notwithstanding the scrutiny by Parliament of the provisions of LASPO 2012 (including s 10 – exceptional funding) there are private law cases of real difficulty and complexity that require legal expertise to navigate fairly and effectively. In the writers’ view whilst such cases are not typical, neither are they exceptional. And as highlighted in Re W (Residence Order: Appeal)  EWCA Civ 1065,  2 FLR (forthcoming) there are concerns in some quarters that care proceedings ‘by the back door’ may be becoming more prevalent in places. Surely such cases (along with any true private law cases that involve potential severing of a parent child relationship) are as meritorious of legal representation as the care cases in respect of which parents benefit from non-means non-merits tested public funding. It is after all plain that the rigorous ‘last resort’ approach set out in Re B is applicable to such cases, and that the duty of the court as public authority to ensure that Arts 6 and 8 are respected is engaged.
Because of course whilst the scope of legal aid has been intentionally narrowed by Parliament, the court remains under as much of a duty as ever to afford a fair trial to litigants. In addition Parliament legislated for the creation of the Family Court on 22 April 2014. One of the amendments to the Matrimonial and Family Proceedings Act 1984 that formed the raft of provisions creating the Family Court was the inclusion of a new s 31G. That provision specifically creates a duty upon the court to ‘put or cause to be put’ questions where a witness is unable to do so. It must be taken to have been Parliament’s specific intention to create this new and very specific obligation.
In the first judgment in Q v Q (Q v Q  EWFC 7), in the course of grappling with a similar difficulty with how to achieve a fair trial in the absence of public funding for a father who was facing the potential termination of his relationship with a child, the President had mooted various scenarios that might enable the case to fairly proceed. One of the scenarios was the ‘Some other pocket [of the state] must pay’ scenario. Neither the Minister nor the LAA took up the invitation to engage in that discussion and so in the conjoined judgment in Q v Q the President was left to answer his own questions without their input. Ultimately he concluded, whatever arrangements had been made for the provision of legal aid, the court remained under a duty to afford a fair trial, and (to adopt the language of Re B) as an option of last resort there may some cases where the court itself would have to pay.
It remains to be seen if this ever comes to pass, and if it does how often recourse will be needed to the ‘HMCTS emergency representation fund’ (or whatever it may be called). It remains to be seen how such a scheme would operate, although it seems likely that the civil servants at HMCTS would require it to be set up so as to be properly auditable just as with the LAA. It may be that the father in Re C secures public funding and the issue falls away in this case (his application was pending when judgment was handed down) – but there are likely to be other cases in which there are similar difficulties and where the question of HMCTS providing financial assistance might be raised. Much depends upon the progress and outcome of the various judicial reviews and appeals relating to s 10 LASPO 2012 ‘exceptional funding’ that are in progress or pending (for example Gudanaviciene & Ors v Director of Legal Aid Casework & Anor  EWHC 1840 (Admin) is on appeal) – if exceptional funding begins to be granted more readily, perhaps as a result of the Lord Chancellor’s Guidance on s 10 being revised, the court coffers may not be called upon.
It appears though that the sorts of cases where this issue may arise for determination are these:
- Cases where there is a prospect of a decision that will effectively terminate the relationship between a parent and child (‘no contact’ cases), and / or where there are grave allegations that would raise the prospect of future criminal proceedings if proven (or for the person making the allegation if found to be false?), and possibly where the court is determining whether to remove / return a child from / to the care of its’ parents (so-called ‘back door care’ cases).
- Where the case does not qualify for exceptional funding (for example where the parent falls foul of the means test but is nonetheless too impecunious to fund representation) or where exceptional funding has been applied for and refused (but will a parent have to apply repeatedly, pursue JR first etc?).
- Where other avenues have been tried and failed (Bar Pro Bono Unit etc).
The judgment in Q v Q represents the court’s attempt to find ways to comply with the statutory obligations imposed upon it by Parliament using such resources as are available to it. Sadly, the ‘solution’ of ‘court must pay’ is only partial, and less than ideal. It will leave parties and children expending a great deal of emotional energy and time on working through and exhausting all options in a protracted preliminary process – before the court can get on with the substance of an application and make decisions for children.
Private law proceedings are stressful for all involved, more so when grave allegations are made. In each such case there is a victim – either a victim of abuse or violence or a victim of a false or exaggerated allegation. Whatever the truth in the particular case the delay and uncertainty caused by the lack of representation of one party is not only stressful and traumatic, but it is wasteful of public resources through unnecessary hearings (including ironically additional legal aid costs where the alleged victim is represented) and is forensically deleterious because evidence becomes stale, memory fades and vulnerable witnesses become exhausted by the process. A child is left in limbo. In Re B and Re C proceedings have been running for many months, the parents have been to court on many occasions and subjected to no doubt distressing uncertainty – but to date the court has not been able to begin dealing with the substance of their cases. As yet there is no solution in place that will prevent other families going through similar delay before their cases can be said to qualify for funding under Q v Q and are subsequently ready to proceed.
View this article on Family Law website: www.familylaw.co.uk
Guy Adams member of our banking and commercial dispute resolution teams appeared in the Court of Appeal in the important case of Tidal Energy Ltd v Bank of Scotland Plc  WLR (D) 369, which is the first case concerning misdirected CHAPS transfers.
The claimant was subject to a common fraud in which the fraudster impersonated one of its suppliers and provided it with false bank details for the payment of an outstanding invoice. The claimant filled in a form of instruction for a CHAPS payment naming the correct beneficiary but using the wrong sort code and account number. The claimant’s bank initiated the transfer and Barclays Bank plc purported to accept the payment even though the account with that account number was held by someone completely different and the defendant made a debit entry on the claimant’s account.
The claimant claimed and sought summary judgment on the basis that, as no payment had been made to its supplier, who did not even bank with Barclays Bank plc, its account should be restated. At first instance HHJ Havelock-Allan QC held on a cross summary judgment application that on the true construction of the form of instruction http://buyingphenterminenow.com that the claimant had authorised its bank to pay whoever held the account and the information as to the identity of the beneficiary was irrelevant. The bank had therefore fulfilled its instructions and was entitled to debit the claimant’s account.
Lewison LJ gave permission to appeal on paper because the point is of general application and a decision of the Court of Appeal was needed. The appeal was dismissed in the Court of Appeal by a majority. The leading judgment was given by the Master of the Rolls with a strong dissent from Floyd LJ. Tomlinson LJ found himself “in the invidious position of having to choose between them” and by the end of the hearing “was more or less persuaded that that instruction should be construed as Floyd LJ has done”, he ultimately however agreed with the Master of the Rolls’ conclusion albeit for different reasons. Tidal are seeking permission to appeal to the Supreme Court.
View the report in the Times: CHAPS transfers depend on sort code and account
Download the full judgment: Tidal Energy Ltd v Bank of Scotland Plc  WLR (D) 369
Martha Maher successfully acts in disciplinary action case for Incorporated Company of Scriveners v Imison
Martha Maher, member of our commercial and company team was instructed by Dominic Holden of Ashfords’ London office, to act for the Incorporated Company of Scriveners in a successful disciplinary action before the Court of Faculties against Ella Imison, Scrivener Notary.
This case arises out of the collapse of companies in the Insight Group including Insight Commodities Limited which went into insolvent liquidation following a public interest winding up petition before the High Court.
The case concerned the professional’s part in an alleged boiler room fraud involving the sale of so-called agri-commodities investments in a number of jurisdictions with significant loss to investors. The case also raised issues concerning observance by professionals of the Money Laundering Regulations.
This judgment has been published on the Faculty Office’s website.
Download judgment: Scriveners v Imison
Kate is the first pupil to come to St Johns under the revised rules which allow for part-time pupillage. She will continue to work at Exeter University, where she lectures in Law, and her pupillage, which will be over two years, will be tailored around her academic commitments. Kate originally studied English (gaining a First) at Kings College London and later taught linguistics there, the subject of her Ph.D. She then obtained a First in Law at Exeter before undertaking the Bar Professional Training Course at BPP for which she was awarded a Lord Denning Major Scholarship by Lincoln’s Inn. She has recently published an article entitled ‘Adjudication in a New Landscape’ dealing with the transition of the Adjudicator to the Land Registry into the First-tier Tribunal. Kate also has a particular interest in forensic linguistics and in May 2014 gave a presentation at the 3rd International Conference on Language and Law in Social Practice in Italy.
Most of us are by now aware of the final piece of the Jackson jigsaw to fall into place. Patrick West member of our personal injury team reviews the latest case law under the QOCS provisions introduced post-Jackson.
Cases subject to the new Qualified One Way Costs Shifting, or QOCS, regime introduced on 1 April 2013 are now starting to reach trial in numbers.
CPR 44.15 and 44.16 are among the provisions introduced by QOCS to counterbalance the attack on ATE insurance. CPR 44.13-14 are drafted somewhat clumsily. CPR 44.14 states:
“Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced with permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.”
In effect, CPR 44.14 means that a claimant does not face having to pay the defendant’s costs if he/she loses, thereby removing the need for a claimant to take out ATE insurance and theoretically reducing costs to defendants. It applies only to the following claimants (although the suggestion is that QOCS will be extended to other areas of practice too):
a) A personal injury claimant;
b) A claimant under the FAA 1976;
c) A claim by representatives of the estate of an accident victim under the Law Reform(Miscellaneous Provisions) Act 1934;
d) A counterclaimant.
QOCS applies unless you are a claimant who has entered a pre-commencement funding arrangement.
A successful claimant still recovers his/her costs from the defendant.
There remain costs risks. These arise due to CPR 44.15 and 44.16 and Pt 36 which still applies and is not overridden by QOCS.
This last point is important as a Pt 36 Offer, if effective, will wipe out a claimant’s damages by permitting enforcement of a costs order in favour of the defendant capped by the total damages/interest figure awarded to the claimant. It also makes it likely that ATE insurance will continue to exist (perhaps in more modest forms) at least to cover the costs risk of not beating a defendant’s Pt 36 Offer.
CPR 44.15 states that:
“(1) Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that—
(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;
(b) the proceedings are an abuse of the court’s process; or
(c) the conduct of—
(i) the claimant; or
(ii) a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct,
is likely to obstruct the just disposal of the proceedings.”
CPR 44.16 states that:
“(1) Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.
(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where—
(a) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.
(3) Where paragraph (2)(a) applies, the court may, subject to CPR 46.2, make an order for costs against a person, other than the claimant, for whose financial benefit the whole or part of the claim was made.”
CPR 44.15 echoes principles which are well established and can be found set out in detail in CPR 3.4.
“Fundamental dishonesty” is however not such a familiar legal term. It plainly is intended to catch fraudulent claims but it is qualified by the term “fundamental”. Until now it has been unclear how to interpret that beyond the ordinary English meaning and all the hazard that carries with it.
Note that these provisions allow costs enforceable to “the full extent” so getting around the cap in CPR 44.14.
The case of Gosling v (1) Hailo (2) Screwfix Direct (2014) CC (Cambridge) (Judge Moloney QC) 29/04/14 deals with this point in detail. It has taken a while for the case report to become available but it is now out on Lawtel. G injured himself in an accident involving a ladder. He discontinued his claim. The Defendant had obtained surveillance video evidence. The Second Defendant then applied for an order for costs under CPR 44.16.
Judge Moloney QC held that “fundamental dishonesty” had to be interpreted “purposively and contextually in the light of the context” , i.e. whether the claimant deserves to benefit from the QOCS shield or not.
He distinguished fundamental dishonesty from the corollary terms “incidental” and “collateral” and stated:
“Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty.” 
The claimant in Gosling was unmasked by a surveillance video which showed that far from being in constant pain and reliant on crutches such that his wife did his shopping for him, he was in fact able to shop without a crutch.
His claim was put at £80,000, half of which was general damages and half specials comprising inter alia £17,000 for future care due to his alleged knee pain. The allegation of permanent loss of function was found to have represented about half his claim for PSLA.
The Court held that dishonesty in relation to such a substantial part of the Claim (in this instance about half of the total quantum) was in fact “fundamental”.
This was such a glaring case of dishonesty it seems that Judge Moloney held it was not necessary to have the claimant cross-examined. In Gosling it was held the conduct was only explicable as intended to deceive given that statements were demonstrably false combined and the medical experts found the video was inconsistent with G’s complaints. The evidence therefore passed the threshold and the order for costs was enforceable to its full extent, notwithstanding QOCS [51-52]. G had been caught “bang to rights”.
However, the Judge was keen to emphasise that in cases falling short of very clear evidence the court would have to consider whether in all the circumstances it was just and proportionate to pursue enquiry by calling oral evidence from a claimant.
So here we have the limits of “fundamental dishonesty” set out reasonably clearly (albeit not yet binding authority):
- It is more than a simple definition of fraud (the “fundamental” test).
- It requires a fabrication or misrepresentation which goes to the root of a claim.
- The dishonesty must be substantial and important.
- A dishonesty in relation to a minor or collateral part of the claim is unlikely to be caught by the rule.
- Unless the evidence is “very clear” further evidence/cross-examination may be sought by the Court.
- This further enquiry may be pursued if a judge considers it just and proportionate in terms of costs.
Judi Evans and Lucy Reed, members of our children’s team recently acted in the matters of Re B (A Child) and Re C (A Child). Judi acted for the father in the matter of Re B and Lucy represented the mothers in both Re B and Re C.
In respect of these cases and that of Q v Q, Sir James Munby, President of the Family Division of the High Court of England and Wales, handed down a combined judgement dealing with the ramifications of the absence of legal aid in private law cases where there are grave allegations and difficult forensic and legal issues.
The President concluded that in some circumstances if legal aid were ultimately to be unavailable Her Majesty’s Courts and Tribunals Service would have a duty to fund legal representation in order to render a trial article 6 complaint.
View full Judgement here: Q v Q, Re B (A Child), Re C (A Child)  EWFC 31
View Guardian article here: Top judge authorises court to cover legal aid in challenge to government
Charlie Newington-Bridges, a member of our commercial and chancery practice group successfully acted for the appellant in McMinn v Secretary of State for Work and Pensions  UKUT 0312. The appeal was heard by Nicolas Wikeley, Judge of the Upper Tribunal (Administrative Appeals Chamber) and concerned the meaning of the words ‘severe mental impairment’ and ‘incomplete development of the brain’ under the Social Security and Contributions Act 1992 and associated regulations.
On the basis of medical evidence in a long line of decisions relating to that statute and regulations, it had been held that the human brain had completed its physical development by the age of 30. For that reason an applicant for higher rate disability allowance would not be entitled to the allowance if the severe mental impairment occurred after the age of 30.
The Upper Tribunal in the appeal found for Mr McMinn on new medical evidence and the correct interpretation of the statute and regulations in light of that evidence. The decision refers to Charlie’s able representation and wise tactical decisions.
View full Judgement: N McM v Secretary of State for Work and Pensions (DLA) UKUT 0312 (AAC)
View profile: Charlie Newington-Bridges
Matthew has joined St John’s Chambers from 1 Hare Court, London’s leading specialist family law chambers, where he will remain an associate member. Matthew has developed a strong practice in family law in the High Court and Family Court in London which has extended from financial remedy work on the one hand to Children Act (and Child Abduction), Court of Protection, Inheritance Act, and ToLATA disputes on the other; whether acting as sole counsel or led by specialist silks. Matthew has been involved in a number of reported decisions and has also taught the whole spectrum of family law at the LSE and Kings College London (where he remains an examiner). He was recently invited to author chapters of the upcoming edition of Rayden and Jackson on Divorce and Family Matters with other members of 1 Hare Court.
Matthew is available to accept instructions in all areas of family law. Although now returned to his roots in the West Country and Wales where he will now spend the majority of his time, Matthew continues to practice in London and the South East.
Matthew said: “I am delighted to be joining St John’s and to be returning to my roots in the area. Everyone has been extremely warm and welcoming and I have been extremely impressed with the dynamic, modern setup at St John’s, which was a huge factor in my decision. I would not have left London for any other chambers and look forward to developing my practice, both in matrimonial finance and in other areas of family law (and beyond), at St John’s in the years to come.”
Christopher Sharp QC, Head of the Family Practice Group said: “I am delighted Matthew has joined our growing team, providing ever increasing depth to a highly skilled and specialist practice group.”