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Government announces today that evidence tests are relaxed for domestic violence legal aid

From January domestic violence victims will no longer have to endure harsh evidence tests to qualify for legal aid, the government announced today.

The Ministry of Justice decided in February that it would scrap a five-year time limit for some forms of evidence and broaden the range of documents that can be accepted as evidence. A statutory instrument amending the legal aid regulations will be laid in parliament on Friday.

https://www.lawgazette.co.uk/law/evidence-tests-relaxed-for-domestic-violence-legal-aid/5063974.article

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Unmarried couples win right to claim bereavement damages following landmark ruling 

Unmarried couples are to have the same rights to bereavement damages as married couples following a landmark Court of Appeal ruling.

NHS worker Jakki Smith, 59, brought an appeal after discovering she was not eligible for damages after her partner John Bulloch died in 2011.

http://www.telegraph.co.uk/news/2017/11/28/unmarried-couples-win-right-claim-bereavement-damages-following/

 

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Burden of Proof under the Equality Act 2010: Ayodele v Citylink Limited & Napier [EWCA] Civ 1913 a Return to Orthodoxy after Efobi v Royal Mail Limited.

Further to my article on 9th October 2017 the Court of Appeal has considered the effect of section 136 of the Equality Act 2010 in the case of Ayodele v Citylink Ltd. The point arose as an additional ground of appeal before the Court of Appeal as a consequence of the EAT’s decision in Efobi.
Their Lordships considered not only the well-known, pre-Efobi, domestic law on this point but also the Opinion of Advocate General Mengozzi in CJEU case C-415/10 Galina Meister v Speech Design Carrier Systems GmbH, which supported the view that in EU law the initial burden lies on a claimant and that this maintains a fair balance between the rights of claimants and those of defendants or respondents.
Singh LJ at paragraph 93 of his Judgment in Ayodele said “I can see no reason in fairness why a respondent should have to discharge that burden of proof unless and until the claimant has shown that there is a prima facie case of discrimination which needs to be answered” Singh LJ was reinforced in that view by reason of the Opinion of the Advocate General in Galina Meister. Further comment was made that there was no material before the Court of Appeal that tended to show that there was a mischief that Parliament intended to remedy by the altered wording in Section 136. It was concluded that the change in wording was because the earlier legislation was not entirely clear that what should be considered at the first stage was all the evidence, from whatever source it had come, and not only the evidence adduced by the claimant. This had been clarified by the Court of Appeal in Madarassy. The changing of the wording was a “tidying up” exercise and not intended to change the law in substance. It was concluded that the pre-Efobi decisions of the Court of Appeal remained good law and that the interpretation in Efobi is wrong and should not be followed.
There is, however, an important point still to be drawn from Efobi, namely the clear warning given to Respondents of the possibility that an adverse inference might be drawn if they do not call alleged discriminators, without a good explanation, to give evidence.
It should be noted that the Court of Appeal has not determined whether permission to appeal should be granted in Efobi and as such there may be further developments.

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Chambers welcomes two Pupils

Members of Chambers are delighted to welcome two new pupils for the final, essential, part of their training known as a pupillage The pupils will spend twelve months in chambers undertaking the preparation of cases under the careful supervision of experienced and knowledgeable barristers in the set as well as learning from the advocates as they work.

Jennifer Smith commenced a specialist family pupillage in October 2017 and will be available to accept instructions from April 2018. Charles Shwenn commenced a specialist civil pupillage in November 2017 and will be available to accept instructions from May 2018.

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UK Employment Appeal Tribunal rejects Uber appeal

 

The ride-hailing firm Uber has lost its appeal against a ruling that its drivers should be classed as workers with minimum-wage rights, in a case that could have major ramifications for labour rights in the growing gig economy. Read the full judgment.

https://www.gov.uk/employment-appeal-tribunal-decisions/uber-b-v-and-others-v-mr-y-aslam-and-others-ukeat-0056-17-da#content

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Members ranked in Chambers and Partners 2017 for the UK Bar

Chambers are delighted to congratulate members for being ranked for their excellence.

Michael Berkley of Magdalen Chambers
Chancery practitioner with a practice covering contentious trusts and probates, wills and property disputes. He is joint head of Magdalen Chambers in Exeter.
Strengths: “Very able and straightforward.”

Christopher Naish of Magdalen Chambers
Has a broad practice, acting for guardians, parents and local authorities on private and public children law matters, as well as being able to handle complex financial remedy cases.
Strengths: “Chris is a calming, steady hand with expert knowledge.” “Very good on complex financial matters and public law children cases, with particular expertise on appeals.”

Carol Mashembo
Has a diverse family practice encompassing cohabitation disputes, financial remedies and private children law. She has over 15 years’ experience and is used to handling cases that involve dealing with litigants in person.
Strengths: “She is a no nonsense, approachable, effective advocate, who clearly devotes time to her preparation.” “Carol’s attention to detail and expert handling of tricky cases is her strength.”

Rupert Chapman
Acknowledged for his handling of cases involving matrimonial finance disputes and private law children matters.
Strengths: “He is very thorough in preparation and has a common-sense approach. He is imperturbable and clients find him very reassuring.”

Gavin Collett
Well regarded for his expertise in planning law, with particular specialist knowledge in highways and rights of way. He acts for local authorities, as well as developers and private individuals.
Strengths: “He has a good grasp of the issues and his preparation is very good. He has an eye for detail. He’s also good tactically and is able to relate to clients.”
Recent work: Acted for a representative of Sustainable Totnes Action Group in a challenge to the Road Traffic Order in Totnes.

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The Court of Appeal Gives Judgment in Fundamental Dishonesty Case

On Monday 30 October 2017 the Court of Appeal gave judgment in the case of Howlett v Davies [2017] EWCA Civ 1696, which concerned the issue of fundamental dishonesty for the purpose of removing the costs protection provided by Qualified One Way Costs Shifting (‘QOCS’). Rule 44.16 of the Civil Procedure Rules provides the exceptions to the costs protection provided by QOCS and specifically provides in relation to fundamental dishonesty as follows: “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 probability to be fundamentally dishonest.”

The facts of the case are of limited relevance but in brief concerned a claim by a mother and son that they had been passengers in a vehicle that had reversed into another stationary vehicle. They alleged that they had suffered injury and sued the driver of the vehicle they claimed to have been a passenger in. The driver of the vehicle they were in also gave evidence supporting the case of Mrs Howlett and her son.

At the start of the trial counsel for the Howletts attempted to get the defence struck out on the ground that the defendant insurers should either allege fraud (which they didn’t) or accept that the accident occurred as alleged with the consequential injuries. It was contended that the Howletts “should not be allowed to sit on the fence”. The application to strike out was dismissed and the fast track trial (taking 4 days) proceeded. At the conclusion of the trial the deputy district judge found that there was fundamental dishonesty, dismissed the claims and allowed the defendant insurer to enforce their costs. The Howletts appealed firstly to HHJ Blair QC who dismissed their appeal and then secondly to the Court of Appeal resulting in this judgment.

2 principal points of importance arise out of this decision of the Court of Appeal (judgment of Newey LJ with whom LJJ Lewison and Beatson agree).

Firstly, the Court of Appeal approve the meaning of fundamental dishonesty given by HHJ Moloney in the County Court decision of Gosling v Hailo (2014) in which he said:

“It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability.

The corollary term to ‘fundamental’ would be a word with some such meaning as ‘incidental’ or ‘collateral’. 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.”

Secondly, the Court of Appeal dealt with the main issue in this case, which was whether or not a defendant insurer had to expressly plead fundamental dishonesty in order for there to be such a finding. This was answered in the negative with Newey LJ stating as follows:

“I do not think an insurer need necessarily have alleged in its defence that the claim was “fundamentally dishonest” for one-way costs shifting to be displaced on that ground. Where findings properly made in the trial judge’s judgment on the substantive claim warrant the conclusion that it was “fundamentally dishonest”, an insurer can, I think, invoke CPR 44.16(1) regardless of whether there was any reference to fundamental dishonesty in its pleadings.” (Paragraph 32).

This news article is written by Russell James of Magdalen Chambers who appeared earlier this year in a successful County Court appeal on a fundamental dishonesty point

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Exeter Family Court Clinic Needs you!

The Exeter Family Court Clinic (or EFCC) was launched in May 2017 to provide limited free support to LiPs. We need more volunteers to help with this new initiative.

The clinic runs monthly at the Exeter Combined Court offering legal advice and support to LiPs involved in child arrangements or domestic violence proceedings by means of short pre-booked appointments. It is not extended to cover LiPs in financial remedy or care proceedings and does not involve court representation.

The aim of the clinic is to help prepare LiPs for hearings and raise awareness of how the Family Court works.

The development of the clinic has been driven by barristers and solicitors, who work in partnership with the Personal Support Unit (PSU) in Exeter and the Bar Pro Bono Unit.

At present we have 23 lawyers signed up, volunteering at least a half-day a year to the scheme but due to the demands of the service, we need more!

If you are a family solicitor, legal executive or barrister of over 1 years PQE and would like to support the clinic, please contact Carol Mashembo, Magdalen Chambers on 01392 285200 or email cmashembo@magdalenchambers.co.uk

We are having an EFCC stand at Exeter Combined Court on 8th November 2017 during Pro Bono Week. Please come and say hello!

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Magdalen Chambers are again ranked as a leading set by the Legal 500

Magdalen Chambers is thoroughly delighted to announce that for the fourth successive year we have been rated as a leading set on the Western Circuit by the prestigious Legal 500 directory. The authors mentioned chambers specialism in civil and family law, and our key practice areas of family finance and public children law matters.

They say the family team at Magdalen Chambers is ‘very strong with respect to financial and children work’. In public children law matters, the set has seen a recent increase in instructions involving sexual abuse and non-accidental injuries. They also praise chambers for being equally adept in planning, commercial and insolvency matters”, and for our expertise in property law.

In addition to chambers leading set ranking, 9 individual members were praised by clients for their work in their respective fields, and ranked in tier 1 on the Western Circuit for their expertise.

The editors of the Legal 500 singled out the following areas of law as being particular strengths of chambers’ practice:

  • Commercial, Banking, Insolvency and Chancery Law;
  • Construction, Planning and Environment;
  • Family and Children Law;
  • Personal Injury and Clinical Negligence;
  • Property Law

The members of chambers individually recognised by the directory as being in the top tier of practitioners are:

  • Joint Head of Chambers Michael Berkley for Commercial, Banking, Insolvency and Chancery law, and is described as “A robust advocate with a very good bedside manner” and for his work in Property law they say “Clients are reassured by his confident demeanour”.
  • Joint Head of Chambers Christopher Naish in the field of Family and Children law was described as “Very intelligent, calm, personable, courteous, analytical and thorough”
  • Rupert Chapman, Head of the Family team, was “Recommended for financial remedy cases and private law children matters”
  • Tony Ward recognised for his expertise in family work is also described as “Very experienced in financial disputes”.
  • Head of the Regulatory, Public and Administrative team, Gavin Collett was ranked in tier one, with the editors mentioning that “His practice encompasses planning, highways, and rights of way” and that “he made a successful challenge to the Secretary of State in the High Court”
  • William Hopkin, who heads up the Commercial team, was praised for being “Extremely able at assimilating complex information quickly”
  • Head of the Civil team, and leading property barrister, Russell James was described as having “a niche practice in homelessness law”
  • Carol Mashembo, a senior member of the family team, recognised in tier 1, has been described as “Experienced in cases involving same-sex families”.
  • Jonathan O’Neill was praised as “A specialist in personal injury matters” and for his expertise in property law as “An impressive cross-examiner”

In addition to the plaudits received by chambers’ members, two of our clerking team are mentioned in this years’ publication. Senior Clerk, James Basden and civil clerk Harry Turner were praised by clients for providing “a very effective personable service and are also very commercial in terms of fees” and that solicitors would “thoroughly recommend them”.

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Burden of Proof under the Equality Act 2010 and Adverse Inferences

Burden of Proof under the Equality Act 2010 and Adverse Inferences: Efobi v Royal Mail Group Limited (Judgment handed down on 10 August 2017). 

Prior to the advent of the Equality Act 2010 the burden of proof under the earlier legislation was stated by the Court of Appeal in Igen v Wong [2005] EWCA Civ 142. The first stage was that the Claimant had to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed, or is treated as having committed, the unlawful act of discrimination. If that initial burden was established by the Claimant, the legislation then required the Respondent to show that unlawful discrimination had not occurred.

Section 136 of the Equality Act 2010 provides:

“136 Burden of proof

(1)     This section applies to any proceedings relating to a contravention of this Act.

(2)     If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)     But subsection (2) does not apply if A shows that A did not contravene the provision.

…”

It is of note that the explanatory notes referred to in the Preamble of the Act state that “…the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act…”

In Efobi v Royal Mail Group Ltd UKEAT/0203/16/DA, a race discrimination case under the Equality Act 2010, the EAT considered the interpretation of S136 after the tribunal at first instance applied Igen v Wong. The EAT held that section 136 does not put any burden on the Claimant and that it was explicit in not placing any burden on the Claimant. S136 requires the Tribunal to consider all the evidence, from all sources, at the end of the hearing so as to decide whether or not there are facts, from which in the absence of an explanation, it could conclude that there had been discrimination. This therefore means that S136 prohibits a submission of no case to answer at the close of the Claimant’s case because the Tribunal has to evaluate all of the evidence, including that of the Respondent, before considering whether there is sufficient evidence to require the Respondent to show that discrimination did not occur.

Laing DBE J acknowledged that this was not the way the Explanatory Notes to the Equality Act 2010 interpreted S136 and although they can be used to aid construction of the statute they cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statue in question. It was further acknowledged that this was not the way that the burden of proof had been understood in cases starting with Igen v Wong but the statutory provisions under consideration in those cases were worded differently to the Equality Act 2010.

Efobi is also a salutary warning to Respondents that choose, without explanation, not to adduce evidence of matters in their own knowledge in that they run the risk that the Tribunal may draw an adverse inference when considering whether S136(2) has been satisfied. In Efobi there was very little evidence adduced before the Tribunal as to the race and national origins of the successful candidates and the Respondent had not called, as witnesses, any of the staff who made decisions in relation to Claimant’s application for promotion. Although not referred to as part of Laing J’s discussion, Lord Sumption’s Judgment in Prest v Petrodel Resources Ltd [2013] UKSC 34 and Wisniewski v Central Manchester Health Authority CA [1998] PIQR P324 were cited in argument.

In Wisniewski, a clinical negligence case in which the Senior House Officer on call did not give evidence, Brooke LJ derived the following principles in relation to inferences:

(1)       In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2)      If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)       There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)       If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.

Conclusion

Efobi has not only clarified that there is not a burden of proof on the Claimant as part of S136(2) but has also highlighted the need for Respondents to adduce evidence if they do not want to run the risk of an adverse inference being drawn as to why a witness has not been called or why disclosure of other evidence has not been provided. It should, however, be noted that before an inference on any particular issue can be drawn there must be some evidence before the court or tribunal on that issue. Accordingly, Efobi is a clear warning to Respondents who do not call alleged discriminators, in the absence of a good explanation, to give evidence.

Permission to appeal has been sought from the Court of Appeal and a Judicial Decision on the papers is currently awaited.

James Bax

Magdalen Chambers