9 October 2020
Graeme (instructed by Jay Oberoi of Avon & Somerset Family Law) represented the maternal grandmother on her application for leave to apply for the revocation of a placement order made in February 2020 at the end of care and placement proceedings.
The application was first heard by HHJ Bromilow in July 2020. His Honour found that there had been no change of circumstances since the making of the placement order and that, even if there had been, he ought not to exercise his discretion and grant leave. That being so, he dismissed the grandmother’s application.
Baker LJ (with whom Underhill and Arnold LJJ agreed) found that HHJ Bromilow had been wrong to hold that there had been no change of circumstances and that he ought to have exercised his discretion in the grandmother’s favour.
In the circumstances, the Court of Appeal set aside HHJ Bromilow’s decision, granted the grandmother leave to apply for the revocation of the placement order and additionally granted her permission to apply for a special guardianship order.
Re JL (A Child)(Leave to Apply to Revoke a Placement Order)  EWCA Civ 1253
Download PDF here
29 July 2020
Mostyn J’s judgment in OG v AG, in which Christopher Sharp QC and Andrew Commins represented the wife, provides a number of important pointers for financial remedy practitioners. It highlights the importance of negotiating reasonably, even in the face of abysmal litigation conduct, late disclosure and s.25(2)(g) conduct, and even when the financial position is not clarified until weeks before trial. It is never too late and if a party fails to do so they will suffer a costs penalty.
Due largely to the way the husband had conducted himself and the litigation (described by the judge as his “abysmal, and let there be no doubt, dishonest, presentation”) the case took two years from H’s Form A, and generated costs in excess of £1 million with two aborted FDRs. W pursued disclosure from H and third parties to uncover H’s financial situation and only, on the judge’s findings, on 12th June 2020, shortly after the PTR, and less than a month before the trial started on 8th July had “the husband made the final round of disclosure which enabled the financial landscape to be viewed with sufficient clarity to enable negotiations to take place reasonably.” The important point for practitioners, however, is that even at that late stage W was ‘required’ to ‘engage in reasonable open negotiations’. The judge, assessing both parties as being ‘difficult and confrontational characters’, took the view that W’s position was unreasonable, that the revised PD 28A paragraph 4.4 (which the judge said is “extremely important”) clearly applied and requires the parties to negotiate openly in a reasonable way. W had not done so and suffered a consequential penalty in costs, by way of a reduction in the award of costs in her favour made against H. The judge observed: “I hope that this decision will serve as a clear warning to all future litigants: if you do not negotiate reasonably you will be penalised in costs.”
Although, as Mostyn J noted, W had been more sinned against than sinning, she too had initially failed to disclose some bank accounts, and although she had remedied this quite early on and the judge characterised this as “minor compared to the delinquency of the husband” nevertheless “it must be reflected, in my judgment.” He set off £10,000 against her costs award. “The message should go out that if you are guilty of deliberate non-disclosure, even if it is relatively minor, you will pay a penalty in costs.”
A third set off related to a s.37 application to freeze assets in Dubai which was deemed unnecessary.
In the event H was ordered to pay indemnity costs (assessed at 90%) amounting to 45% of W’s costs.
The case is also useful as an example of an award reflecting ‘conduct’ pursuant to s.25(2)(g), which is itself comparatively rare.
The parties were in their early 50 and had been married for 25 years. They had two children, one adult and the other ten years of age. W was Polish and H was German but they had met in London and lived all their lives in this country where they had built a business making ducting, which was an industry in which H’s family had been involved. They had worked hard at building the business to the extent that they amassed almost incidentally a great deal of wealth without knowing what to do with it. The company had £10 million of surplus assets and the parties had built up a portfolio of properties in London, Gibraltar and Dubai. After they separated in 2017 relations deteriorated significantly and H had clandestinely dealt with the properties in Dubai, selling them and channelling funds through a Dubai corporation to establish a competitor business in Europe, with which he denied any connection but which the judge found was, although established behind a façade of nominee shareholders and a LLP, plainly his company. It was the exposure of this network of funding and illicit competition which had been the subject of W’s investigations, including the instruction of private investigators whose agent posed as a potential employee of H’s business to provide evidence of its structure and ownership.
W’s case was that H had sought to destroy the UK company by using confidential information, approaching its customers and competing unfairly. He had even gone to the extent of submitting as evidence an email which he had altered to suggest W had agreed to the sale of the UK company when in fact her position was the opposite.
In the event W kept the UK company, a number of undertakings were given to prevent unfair competition, and the value of the UK company (which was to be shared between the parties) was discounted to reflect H’s competition and also the uncertainty arising from Brexit and Covid-19. The discount was set against the trading value of the company rather than its underlying assets.
In his approach to conduct as a s.25 factor (para 34-39 of the judgment) Mostyn J differentiated litigation conduct and the drawing of adverse inferences from a party’s conduct, from ‘gross and obvious personal misconduct’ and, separately, wanton and reckless dissipation of assets which supports the ‘add back’ jurisprudence. The instant case concerned personal conduct which “can extend, obviously, to economic misconduct such as is alleged in this case. If one party economically oppresses the other for selfish or malicious reasons then, provided the high standard of “inequitable to disregard” is met, it may be reflected in the substantive award.”
While there was a time when the court exercised a moral judgment in relation to its discretion in ancillary relief, times have changed. “Conduct should be taken into account not only where it is inequitable to disregard but only where its impact is financially measurable. It is unprincipled for the court to stick a finger in the air and arbitrarily to fine a party for what it regards as immoral conduct.” (para 72: emphasis added). He concluded (para 73): “Therefore I firmly reject the submission that in addition to the competitor discount, which will fall on the husband alone, and the penalty in costs, there should be an additional substantial departure from equality to reflect the court’s indignation at the way the husband has behaved in the course of the litigation.” Therefore, despite W’s strongly held views about H’s conduct, as the House of Lords had made clear in Miller v Miller “conduct would only be reflected where there is a financial consequence to its impact,” and the “conduct in question, although greatly distressing to Mrs Miller, should not find independent reflection in the court’s decision.”
But for the conduct issues the case was plainly one for equal division. In the event H received a little under 45%. In addition the judge attributed to him an income of £200,000 and having jurisdiction to make an order as H was out of the jurisdiction, he ordered a composite child maintenance figure to include a contribution to school fees of £27,000 pa, based on the statutory child support formula (cf CB v KB  EWFC 78).
7 July 2020
A claim for nearly £1.6m brought by a 60 year old former managing director, Richard Walkden, against Drayton Manor Park has been dismissed by HHJ Murdoch on the grounds it was dishonestly exaggerated.
On 18 April 2014 Mr Walkden and his wife and son were in a gondola at the theme park when it swung violently as it was pushed too hard by a ride operator. Mrs Walkden and their son had only minor injuries.
Mr Walkden claimed he suffered a severe back injury and developed a chronic pain syndrome which prevented him from working normally. He alleged his Leicestershire based ground source heat pump company, Eartheat, went downhill over the next 3 years forcing him to sell it for a nominal sum after a heart attack resulting in him losing over £1m.
Mr Walkden also claimed he was in so much pain he could not bend his back at all and needed care from his wife for 2 hours every day. A two week trial took place in March 2020 at which Mr Walkden was represented by Satinder Hunjan QC and Affinity Law.
Drayton Manor’s insurers, QBE Insurance, instructed Andrew Mclaughlin and Anthony Bushell of Plexus Law. Mr Walkden was cross examined over 2 days during which the Judge held he groped for explanations when confronted with inconsistencies in his claim.
Mr Hunjan QC urged the court to accept his client was honest and truthful and he had been left seriously disabled by what he alleged was a horrific accident. In a written judgment handed down on 7 July 2020 the Judge said Mr Walkden was evasive, he misrepresented and exaggerated the effects of the accident, he was untruthful about his past medical history, he failed to disclose documents and he lied about the reasons he had not worked.
The Judge also found Mrs Walkden was not credible. 5 medical experts, Dr Stephen Allder (neurologist), Professor Abel (psychiatrist), Darren Forward (orthopaedic surgeon), Dr John Williams (pain consultant) and Dr Challenor (cardiologist) as well as Stephen Harris, a forensic accountant, were called to give evidence on his behalf but their opinions were rejected.
The Judge said he preferred the evidence of each of the Defendants experts (Robert Macfarlane, John Webb, Michael Bond, Graham McDowell and Professor Channer) who had carefully analysed video surveillance of Mr Walkden which showed he had a good range of movement of his back and was far less disabled than he had claimed. The Judge also preferred the evidence of Matthew Geale, Forensic Accountant.
Mr Walkden had made a claim on an income protection policy following his heart attack in 2017 but resisted disclosing the documents he had submitted in support until about 1 month before the trial and only after relentless pressure and 2 court orders against him. Some documents were not even sent until after the trial had finished. The Judge held the documents showed he had lied to the court and this reinforced his conclusion about Mr Walkden’s lack of credibility.
The Judge assessed damages at £17,600, about 1% of the damages he claim but ruled he should receive nothing and his claim should be dismissed with costs on the indemnity basis because he had been dishonest.
Mr Walkden now faces a bill of in excess of £300,000 and the prospect of bankruptcy if he does not pay.
A link to the judgment and the order made will be available when provided by the court.
Download general form of judgment here: 182204673420071410355 (003)
1 June 2020
Matthew White, of St John’s Chambers’ personal injury team, successfully represented the claimant in Barlow v. Wigan Metropolitan Borough Council  EWCA Civ 696.
The key points are:
- For a highway to be “a highway constructed by a highway authority” so as to be considered highway maintainable at public expense,
- the highway must be constructed by an authority exercising its highway authority functions (i.e. this Court of Appeal has disagreed with Sedley LJ in Gulliksen); and
- the highway must have been constructed by the highway authority after 1959.
- If a claimant is permitted to be on the defendant’s land for reasons other than the existence of a highway, it has been suggested (obiter) that the rule in Gautret v. Egerton/ McGeown v. Northern Ireland Housing Executive which would mean that no duty of care is owed in relation to accidents on the highway does not apply.
1 June 2020
Richard Stead, instructed by Lea Brocklebank, partner in DACB Beachcroft’s Complex and Catastrophic Injury Team, successfully defended a GB International carriage driver in a claim alleging negligence arising out of an accident occurring during a competition at the Indoor Carriage Driving National Championships.
The claim alleging negligence was brought by the Claimant who was acting as “back stepper” (a groom who stands on the back of the carriage to moves his / her body weight to maintain stability of the carriage) when the carriage tipped over on a tight corner during an obstacles race. The Claimant sustained serious injuries to her right arm and left knee. The Claimant sued the Defendant who was the driver of the carriage, alleging that she drove at an excessive speed and intensity, and that she should not have asked the Claimant to backstep for her in the light of the Claimant’s alleged limited experience. The case provides a welcome restatement of the law in relation to the duty of care owed by competitors in sport, and clarifies the position towards their teammates.
HHJ Tindall sitting in Hereford County Court tackled the well-established line of authorities going back over 60 years establishing the standard of care in negligence in the context of competitive events and sports, ‘calibrated’ to reflect their context of necessarily carrying a degree of risk of injury greater than (e.g.) driving safely and carefully in vehicles on public roads or a gentle horse ride through the countryside on a bridleway.
Starting with what he identified as the beginning of the modern approach (Wooldridge v Sumner  3 WLR 616) the judge noted that the maxim volenti non fit injuria does not apply in this context because it presupposes a tortious act by the Defendant. Rather, the issues of consent and voluntary assumption of risk are relevant circumstances in ascertaining the extent of the standard of care.
An important stop on this journey through the law was the case of Wilks v Cheltenham Motorcycle Club  1 WLR 668 (CA), in which Lord Denning said “Let me first try to state the duty which lies upon a competitor in a C race. He must, of course, use reasonable care. But that means reasonable care having regard to the fact that he is a competitor in a race in which he is expected to go ” all out” to win. Take a batsman at the wicket. He is expected to hit six, if he can, even if it lands among the spectators. So, also in a race, a competitor is expected to go as fast as he can, so long as he is not foolhardy. In seeing if a man is negligent, you ask what a reasonable man in his place would or would not do. In a race a reasonable man would do everything he could do to win, but he would not be foolhardy.”
After considering the case of Maguire v Caldwell  PIQR P6 (CA), HHJ Tindall arrived at Blake v Galloway  1 WLR 2844 (in which Richard Stead represented the Defendant) which considered children throwing bark chippings during horse-play, and in which Dyson LJ stated “that there is a breach of the duty of care owed by participant A to participant B only where A’s conduct amounts to recklessness or a very high degree of carelessness.”
In determining the breach that the Claimant needed to prove in this claim, the Judge also acknowledged that there was a difference between the pre-race period and the race/event itself. As far as allegations pertaining to the pre-race period, the normal standard of reasonable care was applicable. In the context of the race itself, the Claimant failed to establish that, as was required, the Defendant had been “reckless”, or demonstrated “a very high degree of carelessness”, or as Lord Denning had termed it “foolhardy”. The Judge considered that the carriage was driven round the particular corner at an excessive speed bearing in mind the level of experience of the backstepper, but that this was an error of judgment which did not amount to a breach of the requisite standard of care.
There were two remaining interesting features. First, on the facts of this case, the Defendant was a championship level driver and the Judge accepted that the level of care to be expected from the Defendant was higher than it would be for less skilled drivers, relying upon the Court of Appeal case of Condon v Basi  1 WLR 866.
Second, HHJ Tindall had to consider the duties in the context of an injury to a team-mate and whether the ‘calibrated’ standard of care still applied. Referring also in his deliberations to the case of Harrison v Vincent  RTR 8 (CA), he decided that it did, pointing out that it was difficult to see why the Claimant should have a lower hurdle to prove liability against the Defendant than against a rival competitor in a horse race or a spectator of a sporting event.
As a footnote, this hearing lasting 3 days was conducted remotely by Skype with the parties, their legal representatives and the witnesses, lay and expert, being in various locations. While noting that he had conducted several smaller trials remotely, the judge noted that “Whilst this 3-day case was a different level of challenge, it was supported at a listing hearing by the Claimant’s solicitor Mr Cotton and the Defendant’s experienced and skilled counsel Mr Stead. Indeed, thanks to their efforts and those of Mr Stead’s instructing solicitor Ms Brocklebank and her team, we were able to overcome various technological issues and successfully tested not only using Skype but using it to share video footage the week before trial”. In spite of a number of witnesses losing connection during their evidence, a reasonable quality of hearing was achieved in difficult circumstances.
28 May 2020
The High Court in Bristol (HHJ Matthews) has granted Sally Challen relief from the forfeiture arising from her killing of her husband Richard in 2010. The case had become a cause celebre arising from Sally Challen’s conviction for murder in 2010, and its subsequent quashing by the Court of Appeal in 2019 and later substitution with a conviction for manslaughter by reason of her diminished responsibility, a substantial element of which was the coercive control that Richard had enforced over Sally for the forty years of their marriage. The judgment considers the effect of the court’s jurisdiction under the Forfeiture Act 1982 and the operation of the time limits within that Act, as well as the merits of the application.
Leslie Blohm QC of St. John’s Chambers, instructed by Stephens Scown LLP Exeter (Charisse Crawford) represented Sally on the application.
27 April 2020
Nick Pointon, together with Jersey Advocate Steven Chiddicks, has been representing Consultant Ophthalmologist Mr Amar Alwitry in long running proceedings before the Jersey courts, arising out of his unlawful dismissal in 2012. The liability phase of these proceedings has now concluded, with the Judicial Committee of the Privy Council declining the States Employment Board’s renewed application for permission to appeal, following detailed written argument. Significantly, the Privy Council accepted the submissions made on behalf of Mr Alwitry that the proposed appeal gave rise to no arguable point of law.
In February 2019, following a two week trial focussed on questions of liability, the Royal Court of Jersey found that Mr Alwitry had been unlawfully dismissed in breach of contract (SEB v Alwitry  JRC 014). The SEB’s first appeal against that decision was heard and dismissed by an extraordinary sitting of the Court of Appeal (Sir William Bailhache, Bailiff of Jersey, Lord Anderson of Ipswich KBE and Jonathan Crow QC), in SEB v Alwitry  JCA 134. The SEB, having been declined leave by the Court of Appeal, renewed their application directly to the Judicial Committee of the Privy Council.
Her Majesty The Queen, on the advice of the Judicial Committee of the Privy Council, refused permission at a meeting of the Privy Council held during lockdown at Windsor Castle on 3 April 2020 (SEB v Alwitry, JCPC 2019/0105).
The decision is a significant one, recognising at the highest judicial level that the right of the SEB as employer to dismiss Jersey consultants on notice without cause has been fettered by the express terms of their contract. This case exemplifies the possibility, alluded to by Baroness Hale JSC and Lord Mance JSC in Edwards v Chesterfield NHS  UKSC 58, that an employee may have the contractual security of indefinite employment absent lawful cause for their dismissal, thereby falling outside the so-called “Johnson exclusion area” created by Johnson v Unisys Ltd  UKHL 13. The practical consequence is that Mr Alwitry’s claim to damages is not capped by reference to any notice period.
The quantum phase of this long running litigation will now begin. Mr Alwitry continues to be supported by the British Medical Association.
27 February 2020
|Natasha Dzameh successfully represented an administrator in joined trials in the High Court. The first concerned a claim by the administrator for an injunction, an account and other relief in relation to a property he alleged was the main asset in the Deceased’s estate. Natasha secured a £625,000 freezing injunction in the interim resulting in recovery of the main asset prior to trial. An order for an account was secured at trial despite the Defendant attempting to offset a six figure sum she claimed was owed to her.|
The second trial was a claim by 3 individuals who would be residuary beneficiaries if a 1988 uncertified copy of a will was propounded for. The administrator contended that the presumption of revocation applied.
10 February 2020
Asha represented the local authority in this 5 day final hearing in care proceedings concerning allegations of inflicted injury. She secured significant findings of physical and emotional abuse against both parents. Instructed at the case management stage, Asha drafted a comprehensive schedule of findings and ensured that the best evidence in respect of the child’s allegations was obtained.
10 February 2020
Asha acted for the local authority in this 4 day final hearing involving significant neglect over a number of years. The local authority was undergoing a serious case review in relation to this case following criticism by the ISW and guardian. Asha advised the local authority in conference prior to the hearing. At the hearing she marshalled the voluminous evidence and secured the findings and orders sought by the local authority.
10 February 2020
Asha represented the father assisted by his intermediary in this final hearing in care proceedings. She submitted that in the interests of fairness and the need to consider parenting with adequate support, the father’s needs and abilities should have been assessed earlier in the process. The judgement was written in a plain English format for her client to understand and criticisms were made of the local authority not following best practice for adults with learning disabilities in line with Asha’s submissions.
10 February 2020
In this 5 day finding of fact hearing, Asha represented the mother who was in the pool of perpetrators in relation to significant bruising to an immobile baby. She was able to process a voluminous amount of police disclosure served on the morning of the trial in order to maintain the listing and she was praised by the judge for her ‘thorough’ cross examination of a paediatrician and her ‘detailed’ written submissions.
10 January 2020
Matthew O’Regan recently represented Swedish technology group Tobii AB before the Competition Appeal Tribunal in its challenge to the decision of the Competition and Markets Authority that Tobii’s acquisition of Smartbox, a British supplier of augmentative and assistive communications products, restricted competition and should be prohibited, with Tobii being required to sell Smartbox.