David Campbell acts as Prosecutor for A.C.T National Health and Safety Criminal Mock Trial

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On Wednesday 13th February David Campbell acted as Prosecution Counsel for Compliance on Trial – Health and Safety  Criminal Mock Trial he helped organise with A.C.T National Ltd at the National Liberal Club in London.

The event was attended by over 70 delegates who became the Jury and were actively involved in the Judgment with the aim of this trial was to provide knowledge of the process when a criminal trial is brought to court.

It was not designed to teach law or how to conduct an investigation, but to provide a valuable insight into both the legal and prosecution process that are taken.

Being run by practicing criminal barristers, this event provides a very realistic view of the legal requirements involving working at height undertakings and the due diligence / liability process in utilising contractors.

The event closed with a discussion of the verdict and its implications, with opportunity to question the legal team and network with fellow professionals.

Pimlico Plumbers Ltd & Mullins v Smith [2018] UKSC 29

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In what is likely to be the leading authority on employment status for years to come, the Supreme Court today has dismissed the appeal of Pimlico Plumbers from the Court of Appeal decision that Mr Smith was a worker and not a self-employed contractor.

Mr Smith is a plumber who carried out work for Pimlico between 2005 and 2011. After suffering a heart attack in 2011, Mr Smith claimed to have been unfairly dismissed despite having presented himself as self-employed for VAT and income tax for 6 years. The facts of his engagement are complex, but the dispute between the parties centred around the legal categorisation of Pimlico’s business model. The model presented operatives to clients as working for the business, but at the same time the business internally sought to maintain that there was a legal relationship of self-employed independent contractor rather than employer and employee. The paperwork in this regard was confusing at best. The employment tribunal, EAT and Court of Appeal all reached the decision that Mr Smith was a ‘worker’ rather than a self-employed contractor. Today the Supreme Court judgment upheld that finding.

Whether or not someone is a worker or an employee is largely a matter of fact for the Tribunal to decide. Here Lord Wilson determined that, “the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance …there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor.” The substantive claims will now proceed to be heard in the employment tribunal.

Although Charlie Mullins (the owner of Pimlico) prophesies that companies using self-employed contractors now face a ‘tsunami of claims’, this claim is most likely a gross exaggeration. As has always been the case, every individual case will require careful legal analysis of the true nature of the working relationship. The contractual label alone is not enough. The contract may term the relationship as one of self-employed contractor, but the substance of the obligation of personal performance is what counts. Here, there was criticism of “an irrelevant contract, cast in highly confusing terms”, necessitating proper scrutiny of the entire engagement. The famous judgment of Lord Templeman in Street v Mountford [1985] AC 809 comes to mind that “The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.”

Companies routinely engaging self-employed contractors on any sort of routine basis would do well to potentially scrutinise and revise its contracts in light of this judgment. Individuals who feel as though they have been ‘strong armed’ into signing a contract declaring them to be self-employed, despite being heavily controlled by their company, may wish to consider negotiating a clearer and more honest working legal relationship. When it comes to drafting contracts that seek to control an operative whilst describing them as self-employed, the ‘careful choreography’ exercised by Pimlico is not enough to balance such inconsistent objectives. In future, contracts- be they for an employee, worker or self-employed contractor- should really call a spade a spade.

https://www.supremecourt.uk/cases/docs/uksc-2017-0053-judgment.pdf

Andrew Worthley

Fundamental Dishonesty in Context – LOCOG v Sinfield [2018] EWHC 51

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In the absence of an authoritative statutory definition, a fair amount of judicial ink has been spent attempting to unpack the practical meaning of the term ‘fundamental dishonesty’. It was introduced by CPR 44.16(4) as an exception to the qualified one-way costs shifting (QOCS) provisions in CPR 44.14 and has since been employed in the Criminal Justice and Courts Act 2015. The Court of Appeal in Howlett v Davies [2017] EWCA Civ 1696 (on which see Russell James’ 2017 article) endorsed the approach of HHJ Moloney QC in the unreported case of Gosling v Hailo (29 April 2014) on the meaning of the term in the QOCS context. An important element of that guidance is an explicit distinction between dishonesty relating to issues that are ‘fundamental’ and those that are merely ‘incidental’ to the claim.

Relatively few findings of fundamental dishonesty have been made at all and, although a general taxonomy is helpful, discussion of this vexed expression against different factual and legal backgrounds renders its meaning clearer and application simpler. In this context, the recent case of LOCOG v Sinfield [2018] EWHC 51, which is the first reported case on the concept in relation to section 57 of the 2015 Act is a helpful addition to the emerging definition.  Section 57 provides in part:

57 Personal Injury Claims: Cases of Fundamental Dishonesty

(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a) the court finds that the claimant is entitled to damages in respect of the claim, but

(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.…

The case concerned a volunteer at the 2012 Olympic Games who injured his arm and wrist; the Defendants admitted liability. Following a trial on quantum, LOCOG served an amended defence which alleged fundamental dishonesty.

The Claimant claimed that the injury prevented him from tending to his two-acre garden which he said he and his wife had used to look after alone but for which they now required a gardener. The amount claimed in this respect was ~£14,000 which represented ~42% of total damages. It emerged that the Claimant had employed a gardener before the accident (who had taken on no more work since the accident) and that additional invoices, purportedly from the gardener, were in fact drawn up by the Claimant himself (his ex post facto excuse was that this was ‘self-billing’).

At first instance, the judge rejected the section 57 application, finding that the Claimant had been “muddled, confused and careless” in making the inflated claim and, in relation to the creation of false invoices, had been “dishonest”. Crucially, however, he had not been fundamentally dishonest so as to affect the entirety of the claim.

Allowing LOCOG’s appeal, Knowles J took Howlett and QOCS caselaw as his starting point for his discussion on fundamental dishonesty. This discussion is useful for three reasons:

  1. it provides a practical example of fundamental dishonesty;
  2. it clarifies the narrow difference between the two uses of the term; and
  3. it outlines the proper approach to be taken to an application under section 57.

Firstly, it was found clear that this was an example of ‘dishonest’ behaviour. Dishonesty is not a particularly controversial concept and imports the well-understood concepts of falsity, deceit and deception. In Ivey v Genting Casinos [2017] 3 WLR 1212 the criminal standard of dishonesty was modified to be more objective, the civil test now being for the court to consider, as a matter of fact: what the Claimant’s words meant and whether the Claimant could have genuinely believed that meaning.

The court also noted that even in the context of a claim for gardening assistance ~42% of the damages was sufficiently ‘fundamental’. What fundamental actually means however still remains something of a mystery. The judgment brings together existing signposts on fundamentality: the Howlett approach was applied and the judge considered the proportion of the damages affected was more than incidental; the definition of ‘fundamental’ breach of contract discussed by Lord Upjohn in Suisse Atlantique [1967] 1 AC 361 is also drawn on (breaches that go “to the root” of the contract). However, the judgment does not go much further than canvassing these authorities and applying them to the present facts in actually clarifying the concept of fundamentality for the purposes of personal injury litigation.

Secondly, the decision compares the usage of the term fundamental dishonesty in relation to QOCS and section 57. At paragraph 60:

60 …the drafter of s 57 sought to draw several distinctions from CPR r 44.16: it is the claimant who the court must find dishonest, rather than the claim. Further, rather than permitting the defendant to recover all of his costs, the court is required to assess the claimant’s ‘genuine’ damages and deduct that figure from the defendant’s costs. As to the first point, however, it will be rare for a claim to be fundamentally dishonest without the claimant also being fundamentally dishonest, although that might be a theoretical possibility, at least.

On the basis of that dictum, it appears that practitioners should not be reluctant to draw on QOCS caselaw when considering the term in the section 57 context and vice versa. Whether there could be a case where a Claimant is fundamentally dishonest but that dishonesty does not infect his claim remains to be seen.

Finally, at paragraph 64, the judge neatly summarises the correct approach:

64 Where an application is made by a defendant for the dismissal of a claim under s 57 the court should:

a. Firstly, consider whether the claimant is entitled to damages in respect of the claim. If he concludes that the claimant is not so entitled, that is the end of the matter, although the judge may have to go on to consider whether to disapply QOCS pursuant to CPR r 44.16 

b.If the judge concludes that the claimant is entitled to damages, the judge must determine whether the defendant has proved to the civil standard that the claimant has been fundamentally dishonest in relation to the primary claim and/or a related claim in the sense that I have explained.

c.If the judge is so satisfied then the judge must dismiss the claim including, by virtue of s 57(3), any element of the primary claim in respect of which the claimant has not been dishonest unless, in accordance with s 57(2), the judge is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

In addition to this, Knowles J addressed a finding that the judge below had made: that it would be substantially unjust for the entire claim to be dismissed when the dishonesty related only to a peripheral part of the claim. In paragraph 65 he dismisses this, noting that it was Parliament’s intention that section 57(3) “…be punitive and…operate as a deterrent” and that a ruling which effectively allowed fundamentally dishonest claimants to keep the “honest” portion of their damages “would effectively neuter” the effect of that subsection.

Overall, the first case to discuss fundamental dishonesty in the section 57 context sensibly draws on and contributes to the emerging judicial understanding of the term. It provides guidance on the approach to be adopted which, with further application, will help bring much-needed clarity to this important area.

20.02.18 – Charles Shwenn

 

Unmarried couples win right to claim bereavement damages following landmark ruling 

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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/

 

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.

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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.

The Court of Appeal Gives Judgment in Fundamental Dishonesty Case

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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

Dan Dyson Led by Neil Hext QC succeeds in Court of Appeal

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CHANNON V WARD [2017] EWCA Civ 13

The Court of Appeal has held that a negligent broker who failed to place PI insurance for his accountant client had caused no loss as the notional insurer would not have accepted the claim made by the accountant due to the particular facts underlying his claim.  The judgment can be read here: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2017/13.html&query=(channon)+AND+(v)+AND+(ward)

In particular Lord Justice Tomlinson considered that:

“The insurers would, as the judge found, have recognised that the investors had been advised to “shoehorn their commercial claim against MHP into a professional negligence claim in order to tap into Mr Channon’s PII cover”. The pithy but apt language is again that of Mr Dyson.” (para 40)

In addition to the central issues in the appeal, the Court of Appeal also considered circumstances in which parties to a settlement cap a Defendant’s liability for the purposes of that settlement only to subsequently obtain a judgment by consent in excess of that amount (see in particular paragraph 17).

The appeal follows on from Dan Dyson’s successful first instance result at trial see: Channon v Ward [2015] EWHC 4256 (QB) which can be read here: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2015/4256.html&query=(channon)+AND+(v)+AND+(ward)

Dan Dyson has a broad commercial practice including property matters.

Dan Dyson appears before the Court of Appeal

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Dan Dyson led by Neil Hext QC of 4 New Square Chambers appeared before the Court of Appeal (Lady Justice Gloster and Lord Justice Tomlinson) on 22 and 23 November 2016 in the case of Rodney Channon (t/a Channon & Co) v John Ward (t/a Channon & Co).  Judgment will be handed down in due course.

At trial in the High Court (Exeter District Registry) Dan had succeeded in establishing that despite his insurance broker’s negligence in failing to renew his accountant client’s PI cover, quantum against him should be assessed at nil.  The claim against the insurance broker arose after his accountant client had received a number of claims made by investors of a property development company that the accountant managed and owned.  All the investors had invested in the property development company by making unsecured loans.  The loans were not repaid so substantial sums were lost by the investors.  Claims were issued against the accountant alleging that he had given negligent advice qua accountant.  However, HHJ Cotter QC decided that the accountant had not been acting qua accountant so that no accountant’s policy would have operated to provide an indemnity and/or that certain exceptions in the putative policy would have meant that no cover would have been provided – had any insurer been on risk.

Accordingly, the appeal covered matters of: loss of chance; construction of exceptions to an accountant’s policy and their exceptions as supported by the ICAEW’s Approved Policy Wording (a policy wording formulated and/or agreed by the accountant’s governing body). As well as how impecuniosity might be a matter of remoteness in contract.

Rupert Chapman

New Procedure for Appeals in Family Proceedings

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As of October 3rd 2016, appeals from orders made by Circuit Judges and Recorders in most private law family proceedings will be heard by a High Court Judge rather than by the Court of Appeal as had previously been the case.

The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016 applies only in relation to appeals where the notice of appeal was filed on or after October 3rd 2016, so any appeal from a Circuit Judge or Recorder which was filed before that date will continue to the Court of Appeal as before.

The new rules will not apply where;

  • The order is made in proceedings relating to Part 4 (care and supervision cases), Part 5 (protection of children) and paragraph 19 of Schedule 2 of the Children Act 1989 (arrangements to assist children to live abroad) or proceedings under the Adoption and Children Act 2002 (adoption and placement applications);
  • The appeal is from a decision relating to contempt of court in or in connection with cases of the above types (i.e. in public law cases only – committal in connection to private law or Family Law Act proceedings will be within the new procedure);
  • The appeal is a second appeal; or
  • The person who made the order was, when the order was made, sitting in a position other than as a Circuit Judge or Recorder (e.g. when sitting as a s.9 High Court Judge).

In such cases the appeal will be to the Court of Appeal, as before.

Appeals from decisions by District Judges and Deputy District Judges of the County Court or District Judges of the Magistrates’ Court are unaffected, as are the requirements for permission. Appeals from a District Judge will continue to be heard by a Circuit Judge.

The intention is to reduce the workload of the Court of Appeal, which is said to be under great strain as the number of appeals increase.

Employment Appeal Tribunal allows claim to be pursued which arose after the ACAS Early Conciliation Certificate

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Can an ACAS Early Conciliation Certificate cover a claim which has not arisen before the date of the Certificate (or even before ACAS were first contacted)?

“Yes”, said the Employment Appeal Tribunal in Compass Group UK and Ireland Ltd v Morgan.

With rare exceptions, a prospective claimant must contact ACAS before presenting any claim to the Employment Tribunal. It is not difficult to do so – it can be done online or by a simple telephone call – and all the prospective claimant has to provide is his or her name and address and his or her employer’s name and address and contact details. So long as the prospective claimant consents, ACAS will then contact the employer  to see whether any dispute can be conciliated. If it cannot, if subsequent discussions are unsuccessful or if thirty days have elapsed, ACAS issues a Certificate and its reference number must be included on the ET1 Claim Form – otherwise the claim will be rejected by the Employment Tribunal. (The conciliation period can also be extended with the consent of both parties).

Mrs Morgan claimed that a location move and what she saw as a demotion in August 2014 amounted to disability discrimination. She went off on sick leave and later lodged a grievance with her employers who in spite of a “chaser” from her solicitors took no action to progress that grievance. Mrs Morgan commenced Early Conciliation in December 2014 and a Certificate was issued in January 2015. When there was still no action taken to deal with her grievance, Mrs Morgan resigned in March 2015 and claimed that she had been constructively dismissed.

Her employers argued that the Employment Tribunal did not have any jurisdiction to consider her unfair dismissal complaint because, they said, Mrs Morgan had not complied with her obligation to contact ACAS about that claim. The Employment Tribunal disagreed, finding that “there was a connection between the factual matters complained about in the claim form and matters which were in dispute at the time of the Early Conciliation process”.

Her employers appealed to the Employment Appeal Tribunal, contending that, as a matter of construction of Section 18A(1) Employment Tribunals Act 1996, an Early Conciliation Certificate could only cover disputes arising out of facts in existence when the Early Conciliation Procedure was instigated. Since in Mrs Morgan’s case, the resignation took place three months after the start of Early Conciliation, the Certificate could not cover her constructive dismissal claim.

As an argument, this could have some odd results. Take, for example, an employee objecting to a series of unlawful deductions who tried to conciliate. After receiving a Certificate, his employer made another unlawful deduction. Why would Parliament have intended the employee to be duty bound to go to ACAS again – a pointless and futile gesture? And if the employee resigned because of the latest unlawful deduction, why would the position be any different? What about something arising during the Conciliation period? Here, the employer’s case shifted ground during the appeal, moving from a proposed guillotine of the date of instigating Early Conciliation to the date of the Certificate and in the course of argument conceding further that something obviously in contemplation would also be covered even if it had not occurred before the Certificate although, apparently, dismissal would be different (but quite why was never satisfactorily explained).

However, this is a problem which has been troubling Employment Tribunals at first instance with an equal number of decisions for and against, so appellate guidance was badly needed.

The Employment Appeal Tribunal, presided over by its President Mrs Justice Simler, took a healthily robust attitude to the employer’s case. Emphasising that jurisdictional challenges to the cover provided by an Early Conciliation Certificate should be few and far between, it held that if the subsequent claim related to facts and matters in existence at the time of the Early Conciliation Certificate then the Employment Tribunal would have jurisdiction.

In Mrs Morgan’s case, that was clearly so because she had been complaining about all of the matters that she relied on subsequently to argue that there had been a “last straw dismissal” and, indeed, had been telling her employers that they were in breach of contract because they had not dealt with her grievance promptly and fairly before the Early Conciliation process had started.

There was no “chronological” test, as the employers had argued but a question of impression, fact and degree for the Employment Tribunal to assess whether the issues in the subsequent claim related to events or disputes in existence or contemplated at the time of Early Conciliation.

Compass Group UK and Ireland Ltd v Morgan  UKEAT0060/16/RN  26th July 2016.

(Nigel Moore successfully represented Mrs Morgan in the London South Employment Tribunal and in the Employment Appeal Tribunal, instructed by Irwin Mitchell LLP)