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.

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.

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

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.

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