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Articles & Publications

Re C (Children)(Covid-19: Representation) [2020] EWCA Civ 734

13th July 2020

Barrister: Sophie Smith-Holland
Source: Family Law Week

Summary:This was an appeal against a decision of Williams J to continue a hybrid fact finding hearing in care proceedings when leading counsel for the mother could not be physically present with her client when she gave live evidence in court, because she was required to shield. Appeal refused. The Court of Appeal held that there was no breach of the mother’s article 6 rights and not only did the Judge reach a decision that was plainly open to him, he reached the correct decision.

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E-Scooters: The Legal Road Ahead

10th July 2020

Patrick West looks at the potential impact of the introduction of e-scooters on UK roads.

The last time a totally new type of electric vehicle appeared on our roads in January 1985 it was the Sinclair C5.

Although it looked like a space-age solution to traffic congestion and pollution by Christmas it had bombed and retailers were selling them at a 65% discount.

The British Safety Council tested the C5 at Sinclair Vehicles’ headquarters in Warwick and issued a highly critical report to its 32,000 members. Sinclair threatened to sue BSC chairman, James Tye, for defamation after Tye told the press: “I am shattered that within a few days 14-year-old children will be allowed to drive on the road in this Doodle Bug without a licence … without insurance and without any form of training.”

Later, Tye described himself as “the man entirely to blame for the failure of the Sinclair C5.”

There were of course technical problems too with a number of the C5s prematurely whirring to a halt at its launch at Alexandra Palace in January 1985 (even Formula 1 legend Stirling Moss was left high and dry by a failed battery).

The new kid on the block is the e-scooter. Around the world their advent has been met with both delight and concern.

Last week the Government signalled the start of on-road e-scooter trials in the UK (excluding Northern Ireland). Previously e-scooters were illegal on the road.

The Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020 amends the Road Vehicles (Registration and Licensing) Regulations 2002 came into force on 4 July 2020. It adds e-scooters to the list of road vehicles (Reg 4) although it restricts the use of e-scooters on the road to “e-scooters being used in a trial”. Privately owned and operated e-scooters remain illegal on the road.

Protective headgear will be required by the newly amended Reg 4 of the Motorcycles (Protective Helmets) Regulations 1998.

In addition, users will be permitted to drive the e-scooters involved in the trials if they have a provisional licence (Reg 5 of the Motor Vehicles (Driving Licences) Regulations 1999.

Other measures introduced in the amended Traffic Signs Regulations 2016 permit the e-scooters in the trial to use cycle lanes and shared spaces such as pedestrian/cycle pavements (but not ordinary pedestrian-only pavements).

The Department for Transport anticipates that “training of some sort will be offered” by the rental firms participating in the trials although it does not specify how much training or what form the training will take.

The DfT also intends to conduct an impact assessment in due course.

The legislative history of electric vehicles is not straightforward and the outlook for e-scooters is no clearer.

The C5 was manufactured with a 250W electric motor and under the Electrically Assisted Pedal Cycle Regulations 1983 it was not a motor vehicle within the meaning of the Road Traffic Act 1988 and therefore required no tax and no insurance. The same regulations apply to EPACs today although most EAPCs now have a more conventional appearance as electric bicycles with two wheels and a normal bicycle frame.

Under the present trial e-scooters are required to have insurance. Other than that it is hard to see much difference between the C5 and the e-scooter.

The C5 had a top speed of 15 mph. E-scooters in the trial are limited to a top speed of 15.5 mph. In Europe some countries permit scooters to reach up to 18 mph on the road. E-scooters which are not regulated (i.e. legal only on private land) can reach speeds of up to 60mph but it seems unlikely that such machines would ever be legally allowed on the road.

Both the C5 and the e-scooter are relatively flimsy vehicles with the obvious potential for harm to the rider. In addition due to their electric motors it’s hard to hear e-scooters coming. The Royal National Institute for the Blind has raised serious concerns about the danger e-scooters pose to blind pedestrians.

The C5 was cheap to buy (about £200 in old money). E-scooters currently retail for between £100 – £1000 and it is assumed rental rates will be competitive for a mass market.

All this suggests e-scooters will become popular and that UK roads will see a very substantial increase in e-scooter road users very quickly. For example, in August 2018 Tel Aviv allowed the introduction of rental e-scooters to its notoriously congested road network and within a year there were 7,500 of the vehicles scooting about. Interestingly, one negative impact there was the way users abandoned them almost anywhere after they had finished using them. It is anticipated that there are already 200,000 e-scooters already in use in this country (off road).

Given the similarities of the C5 and the e-scooter and that electric bikes are not required to have cover it is hard to see how the Government will be able to justify the insurance requirement for long. No doubt commercial entities will be lobbying ministers in that respect too.

So it may well be that the insurance requirement for e-scooters in this country is a temporary restriction. In fact, the Department for Transport has said it may eventually treat the e-scooter as an EAPC just like the C5 removing the need for cover.

Where does that leave us lawyers? Well, notwithstanding the Government’s optimistic statement about training e-scooter riders, it’s almost certain we will soon be seeing road traffic collisions involving e-scooter users.

The difference between the C5 and the e-scooter is that Sinclair’s velocipede never killed or seriously injured anyone (probably as it was not on the roads long enough). Unfortunately, the e-scooter has already become associated with a risk of serious accidents partly due to the death of the 35 year-old TV presenter Emily Hartridge last year in Battersea while riding an e-scooter.

It is not difficult to anticipate the potential for serious if not catastrophic head injury cases or indeed pedestrians who might be seriously injured if hit by a scooter driven by a larger rider. The Regulations permit the weight limit of e-scooters on the road to be 55kg rather than the earlier planned limit of 35kg and power will be 500W rather than 350W. All this increases the risk of hospitalisation to anyone struck by one.

There are likely to be individuals who do not use the helmets provided, raising the prospect of a new type of Froome v Butcher style pleading of contributory negligence by defendants.

The question of liability will of course revolve around the tortious standard of care of the reasonably competent driver. Given the likely popularity of the e-scooter with the young and the fact that only provisional licences are required it seems inevitable that plenty of users will fall below that standard in causing accidents.

There is strong potential for e-scooters to come into conflict with other e-scooters, cyclists and pedestrians bearing in mind they are free to range in cycle lanes and other mixed-use areas.

As to insurance issues, Part VI of the Road Traffic Act 1988 requires motor insurance to be in place for liabilities arising from the use of “a motor vehicle on a road or other public place”.

Under S 151 a road traffic insurer will have contingent liability even if they are not liable under the policy.

What the new Regulations suggest is that the insurance will be to the full extent (unlimited) cover required by the Road Traffic Act and provided by an authorised motor insurer.

Short-term insurance or pay as you go style policies purchased by the same App used to hire the e-scooter or another App will probably be used.

 

One issue for claimants injured by e-scooter riders may be that the riders are drunk or under the influence of other illegal substances. That will no doubt result in them not being indemnified by the insurer in question.

However, it seems reasonably clear that the current definition of rental e-scooters in the trial as motor vehicles will bring them within the scope of cover under the MIB Agreements in cases of uninsured or untraced drivers who cause accidents.

If, as seems likely given the above indication from the DfT, we face a situation in the future where e-scooters are permitted on roads without insurance claimants injured by allegedly negligent e-scooter riders will face much greater problems.

There may be cover for the rider in the shape of home insurance and other policies although it may not be unlimited.

There is also the frightening prospect of the “man of straw” defendant scenario where an e-scooter rider has no cover, no assets and no real prospect of satisfying a high value judgment against him or her.

 

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A Review and Commentary on the Report of the Gosport Independent Panel

8th July 2020

The Gosport Independent Panel was set up to investigate long-running concerns of a number of families that the lives of their loved ones had been shortened whilst patients at the Gosport War Memorial Hospital. In June 2018 the Panel produced their report (“the Report”). The key medical finding is that there was a culture of shortening lives by prescribing and administering “dangerous doses” of opiate medication not clinically-indicated. Patients were, in effect, put on a terminal care pathway on admission.

In this article Justin Valentine reviews the Report’s findings both in relation to what happened at the hospital and the extent to which the families were let down by all those in authority, not only the hospital but also the police, the coronial system and the relevant regulatory organisations. Twenty years since the events dealt with by the Report there still outstanding police investigations and prosecutions may follow.

The scale of wrongdoing and subsequent inability of official bodies properly to investigate is staggering and Justin Valentine suggests what can be learnt by legal practitioners from the failures highlighted by the Report.

If you would like to instruct Justin Valentine in relation to a clinical negligence or personal injury matter, please contact his clerks: [email protected] or 0117 923 4730.

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Cashflow and Covid 19: Interim Payments On Account Of Costs

26th June 2020

St John’s Chambers barrister, James Marwick has written an article for AvMA Lawyers Service Newsletter. This article examines the circumstances in which payments for an order on account of costs can be made in ongoing proceedings.

You can view a copy of the article here.

If you would like to instruct James on a Clinical Negligence matter, please contact his clerks: [email protected] or 0117 923 4730

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Coroners, Coronavirus and controversy

25th June 2020

An article by barrister, David Regan as been published in the New Law Journal.

Thorny dilemmas for coroners

Coroners are experiencing difficulties when assessing which COVID-19 deaths to investigate, barrister David Regan has warned.

Coroners must determine whether to investigate a death, for example, if human error is involved, the death is violent or unnatural or caused by industrial disease. However, medical knowledge of the coronavirus is at an early stage, and the link between work and infection is easier to prove in a care worker than a shop worker.

Writing in this week’s NLJ, Regan of St John’s Chambers said: ‘Identifying which COVID-19 deaths are unnatural―and thus require coronial investigation and inquest―is not straightforward.

‘It is likely to give rise to a number of challenges. Deaths caused by exposure in work give rise to the greatest difficulty.’

In contrast, Regan says, the Lord Advocate has directed that all COVID-19 or presumed COVID-19 deaths in Scotland where the deceased might have contracted the infection at work or in a care home must be reported to the Procurator Fiscal, who performs the coronial role. See p7.

 

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Financial remedy update Summer 2020

22nd June 2020

Barrister: Christopher Sharp QC
Source: FLBA’s ‘Family Affairs’
Summary: Christopher Sharp QC who is acknowledged by Chambers UK as one of only five star Silks in family law in the country, reviews the more important recent financial remedy cases during the course of the year with termly articles, written for and published within FLBA’s ‘Family Affairs’.

His article for FLBA’s ‘Family Affairs’ Summer 2020 edition is now available and can be downloaded here.

All his previous articles are also available to download from Christopher’s online website profile here.

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B-T (A Child: Threshold Conditions) [2020] EWCA Civ 697

18th June 2020

Barrister: Sophie Smith-Holland
Source: Family Law Week

Summary:This is a Court of Appeal judgment concerning the lower court’s decision to dismiss care proceedings because the section 31 threshold had not been crossed and refusal to continue the interim care order pursuant to section 40, pending appeal. The Court of Appeal substituted its own threshold findings and restored the interim care order which revived the care proceedings. The matter was then remitted for a welfare hearing.

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Proprietary estoppel and proportionality following the case of Habberfield: back to the heart of the doctrine

15th June 2020

Anyone with an interest in proprietary estoppel should read Adam Boyle’s new article. Adam is noted as a specialist in proprietary estoppel by Chambers & Partners and in this thought-provoking article he discusses the state of the doctrine following the case of Habberfield

Read full here

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Covid-19: Competition And State Aid Law During The Coronavirus Crisis

8th June 2020

Barrister: Matthew O’Regan

Summary: To assist businesses and public authorities, specialist competition and State aid barrister, Matthew O’Regan has prepared a guide to how UK and EU competition law and EU State aid law will apply during the COVID-19 crisis. Matthew is continuing to work remotely and can advise law firms, local authorities and other public bodies, businesses and individuals on all aspects of competition and State aid law.

This continues to be a fast-developing area. Matthew has therefore updated his guide to reflect developments up to 8th June 2020. These include:

  • New exclusions from UK and EU competition law for collaboration in the dairy and dairy products industries
  • An update on the CMA’s work to control profiteering
  • Extensions to the EU COVID-19 State Aid Temporary Framework to cover support in the form of subordinated debt and, subject to strict conditions, aid to recapitalise companies through state provision of equity or hybrid capital
  • A new section on merger control, which in particular considers the application of the ‘failing firm defence’ when a business is in financial difficulty as a result of the crisis

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Success in the Court of Appeal for Leslie Blohm QC and Alex Troup

8th June 2020

Leslie Blohm QC and Alex Troup of the Wills & Trust Team, instructed by Burges Salmon LLP, represented the successful Appellant, Robert Sofer, in the case of Sofer v. Swissindependent Trustees SA [2020] EWCA Civ 699.

The Appellant claims that a professional Swiss trustee company acted in breach of trust by paying out over US$19 million from the trust fund to the settlor at his request, notwithstanding a prohibition in the trust instrument on the trustees making any advances to the settlor.

The trustees applied to strike out the claim on the basis of an exoneration clause which covered all breaches save for dishonesty, but that application was dismissed on appeal. The Court of Appeal further rejected the trustees’ application for reverse summary judgment based upon a deed of indemnity, signed by the Appellant, which recited that the payments were authorised loans.

The Court of Appeal’s judgment contains important guidance on the principles applicable to the pleading of a dishonest breach of trust sufficient to overcome a trustee exoneration clause. It also contains a useful discussion of the proper construction of a contractual indemnity and of the principles of waiver and estoppel by convention.

A copy of the Court of Appeal’s judgment can be found here.

If you would like to instruct Leslie or Alex on a related matter then please contact their clerks: [email protected] or 0117 923 4740.

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N (a child) [2020] EWFC 35

2nd June 2020

Barrister: Sophie Smith-Holland
Source: Family Law Week

Summary: In this case the child (“N”) had been unilaterally removed by the mother (“M”) from England to her mother’s home on the island of Paros (Greece) on 20.03.20. The father (“F”) first made an application to the Greek court for N’s return under the Hague Convention 1980 (“the Convention”). On 09.04.20 he then made an emergency application, without notice to M, to the High Court out of hours/vacation judge seeking a range of orders under section 8 of the Children Act 1989 including an immediate inward return order (where the court orders the child to be returned from another place to England and Wales). The application came before the court for directions on 28.04.20.

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Time limit in applications under the Forfeiture Act 1982 (Challen v Challen)

2nd June 2020

Barrister: Leslie Blohm QC
Source: Lexis®PSL
Summary: This article was first published by Lexis®PSL on 02/06/2020. The case concerned an application for relief from forfeiture made by an applicant who had been convicted of murdering her husband, where the conviction was subsequently quashed and a conviction for manslaughter substituted. The court held that the statutory time limit of three months in which to bring an application ran from the date of the manslaughter conviction, not the earlier murder conviction—and that time ran from the date of the final sentencing, not the date of plea. The court also reviewed the application principles and authorities in considering whether to grant such an application. Written by Leslie Blohm QC, barrister, at St John’s Chambers.

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Coercive Control and the consequences of forfeiture – Challen v Challen [2020] EWHC 1330

28th May 2020

Natasha Dzameh reviews the case of Challen v Challen [2020] EWHC 1330 and what it means for the operation of the ‘forfeiture rule’ in cases of coercive control.

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Charlie Newington-Bridges acted for the successful applicant in an unusual High Court application under s125 Companies Act 2006

27th May 2020

Charlie acted for the successful applicant in a s125 Companies Act 2006 application involving the rectification of the register of members where a 100% shareholder and sole director had died and no provision had been made in the Articles for the appointment of a director by executors. The claim was made pursuant to s125 Companies Act 2006 for an order that the Claimants, who were the named executors of the estate of the late Russell John Price (‘the Deceased’) could rectify the register of members, allowing them to appoint directors.

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SZ v DG & Ors [2020] EWHC 881 (Fam)

5th May 2020

Barrister: Asha Groves
Source: Family Law Week

Summary: Mostyn J refuses a father’s application for leave to apply for contact with his son subject to a Special Guardianship Order due to s91(14) being in place

This case involved Mostyn J’s ruling on the father’s application for permission to make an application for contact with his son ‘ED’. The child was subject to a special guardianship order in favour of his foster carers made following lengthy care proceedings (see one of the relevant judgments at D (A Child) [2014] EWHC 3388 (Fam). The father required permission to make the present application as, in the course of those proceedings, Mostyn J had imposed a s91(14) order preventing the father from making any future applications without leave of the court.

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AD & Ors, R (On the Application Of) v London Borough of Hackney [2020] EWCA Civ 518

29th April 2020

Barrister: Asha Groves
Source: Family Law Week

Summary: This case involved an appeal of a judicial review decision in respect of the Respondent Council’s policy in relation to provision to support children who have special educational needs and disabilities (“SEND”). The policy in question involved a 5% reduction in one of the funding elements for SEND provision to schools. The Appellants were children who have SEN and disabilities and attend mainstream schools in Hackney.

 

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Update on remote hearing platforms

16th April 2020

One of the points mentioned in the short Wehinar that Vanessa McKinlay and I delivered earlier this week was about the further systems that are being adopted by the courts to enable remote hearings to be conducted. You will all be aware of various limitations being reported around the better known platforms and in particular the security issues associated with Zoom.

To view the webinar click here.

HMCTS are now offering something called the Cloud Video Platform – CVP. I have no direct experience of this system and how it works in practice but below I set out the guidance from HMCTS as to how to ensure you are equipped technologically for such hearings (it is simple) and what will (or should) happen at the time of the hearing.

Firstly, the court will need your preferred contact details and you will receive a website link and sign in details. It is advised that you check your spam folder if you don’t receive this.

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Financial Remedies in the Time of Covid-19

6th April 2020

Zoë Saunders our head of family finance sets out what we can do to help you deal with financial remedy cases in the circumstances of the current pandemic.

 

 

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Case Summary: Inquest touching upon the death of Mr Andrew Goldstraw

31st March 2020

Barrister: Marcus Coates-Walker
Source: AvMA Lawyer Service Newsletter

Summary: Having represented the family at the inquest into the death of Mr Andrew Goldstraw who was found hanged in his cell at HM Prison Winchester, Marcus explores the key issues in the case, including: (a) the time of death; (b) the failure to carry out roll checks; (c) the assessment and management of the risk of self-harm and suicide of inmates; (d) the provision of anti-depressant medication; and (e) the availability of ‘Spice’ in the prison. Marcus also looks at the criticisms made of the ‘SystmOne’ computer system which is used to store and manage the medical records of prisoners nationwide and how it presents an ongoing risk of contributing to similar deaths to that of Mr Goldstraw.

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Duty of Care and the Coronavirus Bill

25th March 2020

Barrister: James Marwick
Summary: The Coronavirus Bill was published last Thursday and it is before Parliament this week.

It is an extraordinary piece of legislation which will introduce wide ranging emergency provisions aimed at addressing the unprecedented public health crisis presented by the covid-19 pandemic.

The situation is constantly evolving and this article simply serves to highlight some of the possible longer-term ramifications for healthcare and clinical risk lawyers presented by the Bill.

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