Elizabeth Willsteed represents Mother in The High Court of Justice, Family Division
Re W (Young Person: Unavailability of Suitable Placement)  EWHC 2345 (Fam)
Elizabeth Willsteed represents Mother in The High Court of Justice, Family Division
Re W (Young Person: Unavailability of Suitable Placement)  EWHC 2345 (Fam)
Re:N  EWCA Civ 785
Elizabeth Willsteed represents Respondent Children by their Children’s Guardian in Appellant Mother’s Appeal held 21st May 2021.
The Court of Appeal has handed down judgment in 4 joined cases considering the approach of the Family Court to the issue of domestic abuse. In a case that attracted substantial comment in the media, and which was live tweeted to the public by legal bloggers (as well as being conducted entirely remotely on a live stream) the Conducted a wide-ranging review of the approach of the Family Court to cases involving Domestic Abuse.
For some time, there has been controversy about the perceived failure of the Family Courts to protect alleged victims of domestic abuse and their children from the dual harm of an abusive partner/parent and a traumatic court process. Some very public judgments criticising the way in which hearings were dealt with led to outrage in the media and wider public and, it must be said, to successful appeals and enhanced training.
Domestic abuse cases are far from rare. As the President observed, in 2019/2020 there were 55,253 private law children applications and at least 40% of them raised issues of domestic abuse. While the Court noted that the number of appeals in such cases is small it was still a cause of deep unease: in such cases the stakes are high but access to legal representation is limited since they were removed from the scope of legal aid by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). While each of the appellants (all mothers and alleged victims of some form of domestic abuse) had legal aid, none of the respondents (fathers accused of being perpetrators of that abuse) did, and all were represented by lawyers acting for free (pro bono).
Against this background Re H-N and Others (Children) (Domestic abuse: finding of fact hearings)  EWCA Civ 448 combined 4 different appeals against orders made by three different Circuit Judges into a single hearing. Various women’s rights organisations, Cafcass, Rape Crisis, Families Need Fathers and the Association of Lawyers for Children were all joined as intervenors. The Court roamed well beyond the facts of the individual cases and looked at the process, at Practice Direction 12J of the Family Procedure Rules 2010 which governs the procedure in domestic abuse cases, and at the wider approach to the fact-finding exercise.
All four appeals involved domestic abuse. In all four cases there were issues raised about the findings or lack of findings which were made, with criticisms including the manner in which the Judges had dealt with the alleged victims and the impact of coercive and controlling behaviour.
The developing attitude of the Courts to domestic abuse
Having set out the historical development of English law’s approach to domestic abuse, the Court turned to the issue of coercive and controlling behaviour. The President cited with approval the judgment of Hayden J in F v M  EWFC 4:
“4. …The nature of the allegations included in support of the application can succinctly and accurately be summarised as involving complaints of ‘coercive and controlling behaviour’ on F’s part. In the Family Court, that expression is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation. There has been very little reported case law in the Family Court considering coercive and controlling behaviour. I have taken the opportunity below, to highlight the insidious reach of this facet of domestic abuse. My strong impression, having heard the disturbing evidence in this case, is that it requires greater awareness and, I strongly suspect, more focused training for the relevant professionals.”
Coercive and controlling behaviour has been a central part of the definition of domestic abuse within PD12J for some years now and will be a familiar concept to anyone who practices in this area of law. The President acknowledged that:
“31… coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see ‘Scott Schedules’ at paragraph 42 -50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim.”
At the same time, the Court recognised that “not all directive, assertive, stubborn or selfish behaviour will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour”. No marriage is perfect, and where some bad behaviour is alleged which is not ‘used to harm, punish or frighten’ or make the victim subordinate it is unlikely to be relevant.
However, a failure to consider the potential impact of coercive and controlling behaviour, and to look at the allegations in the round to establish a pattern, led to two of the appeals against findings of fact to be upheld – an unusual outcome, as did an undue focus on the intention of the perpetrator as opposed to the impact of the behaviour on the victim in another.
The Court’s approach
The issue that the court sought to address in the context of coercive and controlling behaviour, however, was how to approach those cases where what is alleged is a pattern of behaviour which can be somewhat nebulous and not capable of summing up in a series of distinct index events. The Court routinely lists separate ‘fact-finding’ hearings to establish the truth or otherwise of allegations. Where there are specific and serious individual allegations of physical or sexual violence the approach is straightforward: set them out as if an indictment and then address them in turn. The allegations are often so serious individually that their relevance is obvious. Where coercive and controlling behaviour is alleged it is less straightforward. The incidents alone may be relatively minor, but together they have a cumulative affect over time. It was suggested that the standard practice was no longer fit for purpose in dealing with such cases.
The Court reviewed the guidance within PD12J on when it is appropriate to hold a separate fact-finding hearing in cases where domestic abuse is raised as an issue. The President observed that the Court should only determine those issues which it is necessary to determine in order to dispose of the case – there is not a right to litigate every issue which each party wishes to be heard. The proper approach to the decision on whether to hold a fact-finding is therefore (paragraph 37 of the judgment):
This is, essentially, a restatement of the law as it stands. It is obvious that some forms of behaviour will be highly relevant and should be at the centre of the Court’s consideration of risk. Identifying and addressing the risks posed by a range of abusive behaviours is key to child welfare. But it is equally obvious that the Court is not ‘a Court of morals’ in the position of passing judgment on every ill-considered or objectionable act by a party to a relationship which inevitably has fallen apart in some acrimony.
While the Courts have not always had the most enlightened approach to domestic abuse, and while continual attention to the changing understanding of its impact is needed, not everything which one party to a relationship found upsetting will pose a risk to the welfare of children. Nor is the Court there to lay blame for the sad disintegration of intimate relationships. That can lead to the elevation of petty misdemeanours but also (as in one of the appeals) to an exercise in excusing abusive behaviour because the other party was not blameless. The court should assess the allegations which are relevant to the issues at stake.
Indeed, one of the appeals failed because while the disputed allegation was serious, the mother made clear that she did not seek to overturn the order for contact – only to address a finding that had been considered and rejected in the original proceedings. The issue was therefore academic, and it was not necessary to resolve the appeal. Another succeeded in part because the judge had engaged in an exercise of laying blame on one or other party and thereby minimising the abuse which had been found to have taken place.
One significant part of the judgment for practitioners is in the Court’s guidance on how to plead domestic abuse. During the parties’ submissions to the Court there was a universal feeling that the Scott Schedule was no longer suitable. For the uninitiated, a Scott Schedule sets out in tabular form each alleged incident of abuse, the response of the other party, the evidence they each rely on and the findings of the Judge. Originating from building disputes it is designed to include single items on which there is a dispute in an accessible form. Imported into Children Act proceedings a common practice is for a judge to direct a limited number of ‘incidents’ (often 6 is considered proportionate) sometimes described as the first, last, best and worst – i.e. how it all started, the most ‘serious’ incident(s), the final incident that led to protective action being taken and those with the strongest supporting evidence.
The Court of Appeal looked at two criticisms: the inability of a schedule to address the cumulative impact of coercive and controlling behaviour, and the tendency to limit the number of items to be considered.
The criticism of the more limited approach is obvious – if the allegation is of daily low-level coercive and controlling behaviour consisting of perhaps many thousands of incidents over perhaps decades of a relationship, how is that to be pleaded? Is 6 incidents of name-calling or mutual pushing and shoving during arguments in the last weeks of a relationship worse than daily ritual belittling and controlling of a person so as to destroy their spirit and make them dependent?
And how is a pattern of behaviour to be assessed if limits are placed on the number of incidents to be pleased? In a building claim each faulty item is easily identified and the Court will allow you to address each aspect of your claim. If you are a pair of Hollywood stars arguing over a libel claim you can have 16 days with a High Court Judge. But if you are a victim of domestic abuse dealing with a perpetrator who poses a risk to you and your children you are limited to only a small number of issues and potentially criticised if you then stray outside the schedule. The focus on index incidents, it was argued, skews the picture and limits the Court’s assessment of risk – the argument will always be that ‘only’ 3 or 4 or whatever number of incidents were proven, where they may be part of a pattern which is what really poses the risk.
The Court of Appeal agreed with the criticism of Scott Schedules:
“46. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be.”
As to what that format might be – pleadings as in a civil case or a threshold style document identifying types of harm and the causes of them were suggested – that issue was left to another day. In my personal experience it is now common for Scott Schedules to identify ‘coercive and controlling behaviour’ or similar patterns as one of the index allegations, followed by a series of stated examples. This is sometimes criticised as a way of ‘getting around’ the limit on the number of allegations pleaded. This criticism seems inappropriate in light of the Judgment of the Court of Appeal and the recommendations in similar terms of the Harm Report. Until further guidance is received it is likely that the Scott Schedule will need to be adapted to allow a wider view of the narrative.
Controlling and Coercive Behaviour
Perhaps the most important part of the judgment relates to the approach of the Courts to controlling and coercive behaviour allegations. The Court observed that the vast majority of domestic abuse cases were underpinned by coercive and controlling behaviour. It is likely, therefore, to be central to the Court’s exercise in most domestic abuse cases. Even where there was violence it was likely to be part of a pattern of intimidation and control.
Importantly, just as the antiquated approach from the 1970s and 1980s of looking at ‘violence’ as something between the adults had rightly been left behind, so too should the approach of viewing coercive and controlling behaviour as incidents that are between the adults and ‘in the past’ and therefore irrelevant.
That the parties are separated and therefore not in a position where physical or sexual violence can be perpetrated does not address the underlying patterns of behaviour that are the foundation of domestic abuse. The Court observed that the patterns and attitudes that lead to abusive behaviour are likely to find a different outlet if not addressed and therefore to pose a risk, even if the route to a repetition of the past behaviour is closed off by separation or injunctions. A judge who fails to consider the issue of coercive and controlling behaviour is therefore likely to fall into error and expose themselves to an appeal.
The Courts should, it was held (paragraph 56), look less at individual incidents (unless they are obviously of significant concern in their own right) and more at the pattern of behaviour. The Court of Appeal considered this may restrict the length of the exercise and ease the burden on the courts. How a judge is to find as a fact that a pattern of behaviour has occurred without establishing a series of examples of that behaviour remains to be seen. The Court’s guidance was that:
The relevance of the criminal law
Since the case of Re R (Children) (Care Proceedings)  EWCA Civ 198 there has been debate about the relevance of criminal law concepts to Children Act cases. In many cases the allegations made could easily constitute a criminal offence. In some cases, there will have been criminal proceedings resulting in acquittal – a cause of consternation to some that the allegations can be resurrected in a different court with a different standard of proof.
In Re R the Court of Appeal held that it was wrong for the Family Court to engage in debates about whether the alleged abuse constituted a criminal offence. The focus should be on the broad canvas of narrative not the specific detail of an alleged crime. In criminal proceedings no findings of fact per se are made – the jury decides whether a person is guilty or not in relation to the offence as pleaded in the indictment. The issue in Family Proceedings is very different. The Court needs to establish what has happened and how and then assess the risks arising from that.
So far so sensible. The result, however, has been a degree of confusion. As Cobb J observed in F v M  EWHC 3177 (Fam) it is the focus on the ingredients of an offence (for example defences to an established offence or the constituent aspects making up the offence of rape) which was the error envisaged in Re R. The Family Court is ill-placed to consider whether some specific legal defence would be available to a charge in the criminal court, and even where a party may not be guilty of an offence, their conduct may be such as to give rise to genuine risk and real harm. As such it would remain relevant to the welfare exercise even if not a criminal act.
In some cases, however, the Court has become focussed on the language and this was addressed by the Court of Appeal. The contortion of a judge stating that a party or a legal representative let alone a judge is not allowed to use the word ‘rape’ for example but rather must refer to ‘non-consensual sex’ so as to avoid straying into criminal concepts is troubling. What does it say to the victim? They will understand their experience as rape, but a judge is telling them that it is not. They will be left with the understandable feeling that their experience is somehow not so serious. It is artificial, insulting and harmful to victims and was deprecated by the Court of Appeal, who stated that nothing in Re R should cause the courts to shy away from the use of such colloquial language to describe behaviour found to have taken place. The restriction on the consideration of criminal concepts should also not prevent the consideration by the court of procedural matters drawn from the criminal law, such as the relevance of past sexual conduct of the accuser.
This is not the end of the story for Domestic Abuse cases. In the past 12 months both the Harm Panel Report (MOJ: Assessing Risk of Harm to Children and Parents in Private Law Children Cases) and the President’s Private Law Working Group have published detailed reports that are being piloted in Family Courts. They reflect a move away from the adversarial contest between two parties towards a more investigative approach.
It is worth noting that the current position is itself an evolution. The Court observed that as recently as 1976 the Domestic Violence and Matrimonial Homes Act required evidence of actual bodily harm before a power of arrest could be attached to an injunction. In the 1980s ‘domestic violence’ was considered a matter between the adults which was irrelevant to the welfare of children. In 2000 the conjoined appeals in Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence)  EWCA Civ 194 brought heightened awareness of the importance of domestic abuse and its relevance to child welfare, and since then the introduction of PD12J has codified the required best practice, within which domestic abuse is given a wide definition including coercive and controlling behaviour. As society’s approach to domestic abuse evolves, so too does the Court’s.
It is also worth noting that the Courts currently face unprecedented resource restrictions, exacerbated by the impact of the Covid-19 pandemic. Fact-finding hearings are routinely listed for 1 or 2 days, perhaps 3 at most. At least one party is often unrepresented. Lists are busy and the number of judges available restricted. Establishing patterns of coercive and controlling behaviour through many relatively ‘minor’ incidents takes time and care. The challenge for the courts will be to undertake the forensic exercise envisaged by the Court of Appeal within these constraints. Time will tell whether that is possible.
31 March 2021
On 26 September the Supreme Court gave judgement In the matter of D (A Child)  UKSC 42. The case considers the scope of parental responsibility to consent to the living arrangements for children which would otherwise amount to a deprivation of liberty.
By way of background, D was born in 1999. He was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome, and has a mild learning disability. When he was 14 he was admitted to a hospital providing mental health services, for assessment and treatment. He lived in the hospital grounds and attended a school which was integral to the unit. The external door was locked and D was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way. The judge, Mr Justice Keehan, held that D was so deprived but that it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16.
By then, with his parents’ agreement, and with Birmingham City Council (‘the Council’) accommodating him under s 20 Children Act 1989, D had been discharged from hospital to a residential placement, where he was similarly under constant supervision and not allowed to leave the premises except for a planned activity. On his 16th birthday proceedings were issued in the Court of Protection for a declaration that the consent of D’s parents meant that he was not deprived of his liberty at the placement. Keehan J held that his parents could no longer consent to what would otherwise be a deprivation of liberty once D had reached 16, and that the provisions of the Mental Capacity Act 2005 (‘MCA’) now applied. He authorised the placement, and a subsequent transfer to another similar placement, as being in D’s best interests. When D reached the age of 18 his deprivation of liberty could be authorised under the deprivation of liberty safeguards in the MCA.
The Council appeal to the Court of Appeal on the ground that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17-year-old child who lacked the capacity to decide for himself, and the MCA had no bearing on this. The Official Solicitor on behalf of D then appealed that decision. The Supreme Court by a majority of 3 to 2 allowed the appeal.
Lady Hale who gave the lead judgement set out that the issue turns on the inter-relationship between the concept of parental responsibility and the obligation of the State to protect the human rights of children under the European Convention on Human Rights.
Parental responsibility being defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” (section 3(1)). “By law” obviously refers to the common law, but also includes those statutory provisions which give rights etc to parents, such as the Marriage Act 1949, which gives them the right to withhold consent to the marriage of a 16 or 17-year-old child (section 3).
She sets out that historically, parental rights under domestic common law were never absolute and became increasingly subject to the overriding consideration of the child’s own welfare. Quoting Lord Denning MR, In re Agar-Ellis (No 2) (1883) 24 Ch D 317, at 326:
“… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”
She then considered the issue of ‘Gillick competence’ (Gillick v West Norfolk and Wisbech AHA  1 AC 112). A case about whether it was lawful to give contraceptive advice and treatment to a child under 16 without her parent’s consent if she herself was capable of giving that consent. In that case the House of Lords concluded the earlier “age of discretion” cases had established the principle that children could achieve the capacity to make their own decisions before the age of majority. It was no longer, if it ever had been, correct to fix that at any particular age, rather than by reference to the capacity of the child in question.
Lady Hale commented that the MCA does not override other common law and statutory provisions relating to 16 and 17-year-old children, but it does indicate an appreciation of the different needs of this age group. She preferred to express her view on this issue by reference to the ECHR commenting; Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17. D’s living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation.
She considered that the crux of the matter was whether the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply.
She concluded that Human rights are about the relationship between private persons and the state, and D’s deprivation of liberty in the placements was attributable to the state. There is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child.
In her judgement, Lady Black considered that the Gillick case is not directly relevant to the issue before the court. It had to do with medical treatment and not with deprivation of liberty. It was concerned with whether a child might acquire the capacity, and the right, to make such decisions for herself before she reached the common law age of discretion, not with whether parental authority endured beyond that age if the child lacked the capacity to decide for herself. She was however careful to add “I do not intend in any way to water down the important changes brought about by Gillick or to alter the way in which it has been applied in many spheres of family law.”
Lady Black held however that as a matter of common law, parental responsibility for a child of 16 or 17 does not extend to authorising a confinement of the child in circumstances amounting to a deprivation of liberty.
The Court of Appeal has handed down judgment in Livewest v Bamber  EWCA Civ 1174 – a case concerned with whether or not 6 months notice is required to end a fixed term tenancy by the use of a break clause.
In February 2017 Miss Bamber was granted a fixed term assured shorthold tenancy for 7 years of residential premises. That tenancy contained a break clause that Livewest were entitled under the terms of the tenancy to exercise at any time during the starter period, which was an initial period of 12 months capable of extension for a further 6 months (giving a total potential starter period of 18 months).
During the starter period Livewest exercised the break clause due to allegations of anti social behaviour and served a two month notice that complied with section 21(1) of the Housing Act 1988 and the conditions for the exercise of the break clause in the tenancy.
The issue on this appeal was whether or not sections 21(1A) and 21(1B) of the Housing Act 1988, which were introduced by the Localism Act 2011, meant that a six month notice had to be served. Section 21(1A) of the Housing Act 1988 states that section 21(1B) of the Housing Act 1988 applies to an assured shorthold tenancy if “it is a fixed term tenancy for a term certain of not less than two years” and “the landlord is a private registered provider of social housing.” The argument of Miss Bamber was that these conditions were both fulfilled and therefore the effect of section 21(1B) of the Housing Act 1988 was that a six month notice was required.
In the High Court ( EWHC 2454) Miss Bamber’s argument was rejected on the basis that at the time the court came to consider the case the tenancy was no longer a fixed term tenancy for a term certain of not less than two years and therefore the first condition in section 21(1A) of the Housing Act 1988 was not satisfied. The Court of Appeal (at paragraph 42) agree that this analysis cannot be correct as this would be to render the provisions of no effect – by the time the court comes to consider a tenancy in any case it cannot still be a fixed term tenancy. However, the Court of Appeal took the view that a purposive and restrictive approach should be taken towards the word “expiry” in section 21(1B) of the Housing Act 1988 with the effect that this should be read as meaning expiry by the effluxion of time only in this context. This means that the requirement to serve a six month notice only applies where the tenancy in question is being brought to an end by the effluxion of time and therefore does not apply where a break clause is being exercised.
An additional issue that is briefly mentioned in this appeal is whether or not, in cases where section 21(1B) of the Housing Act 1988 does apply, the 6 month notice must be served before or at the end of the fixed term tenancy in order to have effect. Whilst Patten LJ offered a provisional obiter view on this all three members of the Court of Appeal have left this issue to be decided in a future case where the point is of direct application.
A copy of the full judgment can be found here:
Miss Bamber was represented throughout by Russell James of Magdalen Chambers and Cathy Morley of Shelter (Plymouth).
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.
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  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.
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  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  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:
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  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  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 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.
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.