Last updateTue, 24 Feb 2015 5pm

Kingsley Napley LLP

Kingsley Napley LLP

Richard Fox examines the practical and political issues arising from the Supreme Court’s momentous decision that charging claimants to bring an employment tribunal complaint is unlawful

Quite how the government managed to hold on to the Employment Tribunal Fees Order (the Fees Order) for so long may come to be one of the mysteries of our age. The Fees Order came into effect the day after it came into force on 28 July 2013. It introduced for the first time the need to pay a fee to issue an employment tribunal claim and thereafter a fee to have the case heard. For ‘Type A’ cases (the more standard claims), these fees were £160 and £230 respectively. For ‘Type B’ cases, generally speaking the more complicated claims, these fees were £250 and £950 respectively.

Katherine Pymont reflects on the lessons from Roberts v Fresco [2017]

The High Court has held in Roberts v Fresco [2017] that a husband or wife’s right to claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) does not survive for the benefit of his or her estate.

Sandra Paul and Sophie Wood consider the impact of the Modern Slavery Act 2015 over the past year

The Modern Slavery Act 2015 (MSA 2015) which came into force on 31 July 2015 is the first legislative framework to specifically address slavery and trafficking in the 21st century. We look back over the past year to see how it has been used, what impact it has had and what developments there have been since.

Should a vendor’s solicitor be under the same scrutiny as those representing the purchaser? Mary Young and Ben Hillman discuss

Victims of identity theft or modern scams frequently suffer more inconvenience and stress than permanent financial loss. Customers of financial institutions and law firms can rely on safeguards in any number of transactions when falling victim to fraud or dishonesty. Liability, particularly where the underlying perpetrator is a speck on the horizon, increasingly lands at the door of professional advisers and their insurers. Quite recently, the High Court ruled that both the vendor’s and purchaser’s solicitors may be on the hook in certain property transactions.

Sandra Paul presents a legal guide through the headline trial of the year

Only those of the most Luddite disposition can have failed to be aware of the current storyline of The Archers involving domestic abuse. In short, mild-mannered Helen Titchener (née Archer) stabbed her controlling and coercive husband Rob. Helen was about to leave Rob, taking her five-year-old son Henry (who was also present during the incident) with her. In a rage, Rob brandished a knife, making it clear to Helen that the only way she would leave was if she killed herself. Turning the table in classic Kobayashi Maru style, Helen caused the injuries which placed Rob on life support and needing a stoma.

Claire Randall and Katie Allard outline the tax implications of Bowring v HMRC, which concerned a scheme to reduce CGT on capital payments by a trust

In Bowring v HMRC [2015] the Upper Tribunal found that a scheme designed to reduce capital gains tax due on capital payments by a trust, commonly known as the ‘flip-flop II’, was effective. This case is, of course, of interest to those who implemented flip-flop II schemes before anti-avoidance legislation was introduced to block them in the Finance Act 2003. This type of scheme is no longer effective. However, the judge’s reasoning on the meaning of indirect transfers to beneficiaries under s97(5) of the TCGA 1992 is generally applicable. The judgment therefore provides a useful insight for those involved in tax planning as to how the courts are likely to decide on similar issues in the future. However, before undertaking a more in-depth analysis of the Upper Tier’s decision, it is first useful to set out the main provisions of the legislation and the basis upon which the parties deployed their respective arguments.

The material contribution test for causation in clinical negligence has been maintained and clarified following Williams and John. Suzanne Farg reports

The recent Privy Council decision in Williams v The Bermuda Hospitals Board [2016] has confirmed the role of ‘material contribution’ in establishing causation in clinical negligence claims and has already been followed in the subsequent High Court decision of John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust [2016].

Henderson v Wilcox [2015] sheds light on uncertain aspects of the forfeiture rule. Sarah Playforth analyses the case

What could be more straightforward than the forfeiture rule? On the face of it, the rule of public policy that prevents a killer from benefitting financially from their crime offers glorious certainty in a morally ambiguous world. But, like most legal concepts, you only have to scratch the surface to find that things are not as black and white as they seem.

Sarah Playforth discusses Chadda v HMRC, which shed light on the level of evidence needed to show that there has been a severance

A joint tenancy is a fragile thing. That appears to be the upshot of a case in First Tier Tax Tribunal where the judge was very easily persuaded that a joint tenancy had been severed by notice – even though the notice itself had been lost.

Suzanne Farg explores the aims and construction of the new Act coming into force

On 12 February 2015 the Social Action, Responsibility and Heroism Act 2015 (SARHA) was given Royal Assent and its substantive provisions are likely to come into force in the near future.

Claire Kennedy and Emily Carter look behind the government proposals for reform of judicial review

Judicial review is the essential safety valve within our constitutional system which enables individuals or organisations to challenge the lawfulness of decisions made by public authorities. The decisions challenged are as varied as the claimants; from individuals challenging housing decisions made by their local authority to multinational corporations seeking review of decisions made by industry regulators. However, what underpins all judicial review proceedings is the opportunity available to seek judicial oversight of the exercise of state power. In the words of Lord Dyson (R (Cart) v Upper Tribunal [2011]):

Jo Rickards and Johanna Walsh take a look at the UK government’s anti-corruption initiatives for 2015

Anti-corruption compliance should by now be as entrenched in the thinking of UK companies and their staff as anti-money laundering requirements. Currently very much in vogue, it is the new anti-money laundering in the same way that 40 is the new 30 and brown is the new black. Over the past five years a great deal of effort has gone into raising awareness about the effects of corruption and the criminal courts have seen many more prosecutions for corruption, both at home and abroad, than in the previous decade. As we go into 2015 anti-corruption is still in fashion, remaining high on the government’s list of priorities; a plan for the future was published at the end of last year and the Financial Conduct Authority (FCA) has also carried out its own assessment of the risks of corruption in the regulated sector.

Guy Pomphrey discusses the new criminal offence of wilful neglect

The public inquiry into the events at Mid Staffordshire NHS Foundation Trust led to Sir Robert Francis calling for a cultural shift in attitude within the NHS to put patients first. The government has since consulted on a number of responses including a new criminal offence of wilful neglect. This article reviews how healthcare professionals and organisations can be prosecuted under gross negligence manslaughter and corporate manslaughter offences and how a new offence of wilful neglect might operate alongside this.

Suzanne Farg gives guidance on pursuing clinical negligence claims for ‘wrongful conception’ and ‘wrongful birth’

The essential characteristics of reproductive and antenatal medical treatment are such that negligence in these areas will often have further reaching implications for the patient and his or her family, than negligence in other areas of medicine.

Verity Altaras discusses the court’s approach to amending particulars of claim in light of the Jackson reforms

Litigants may wonder to what extent the Jackson reforms have impacted on applications to amend particulars of claim. In a recent decision, the High Court in Hague Plant Ltd v Hague [2014] found that proportionality of cost and reasonable allocation of court resources tipped the scale against the grant of permission. What lessons can be learned from the case?

Laura Sylvester considers if there has been a softening of judicial approach

Following the Court of Appeal’s decision in 2013, in the landmark case of Andrew Mitchell MP v News Group Newspapers Lts [2013], much has been discussed about the court’s robust attitude towards a party breaching a civil procedure rule, practice direction or terms of a court order. Claimants and defendants were left reeling at the end of 2013 following the ruling in Mitchell and prepared for a future fraught with anxiety and fear of missing deadlines and non-compliance of the CPR, even in the most minor of ways. The age of the collaborative party/party relationship was thought to be over and seemingly, we were at war.

Sandra De Souza reviews recent case law and insurers’ willingness to reopen cases where fraud is suspected

With an increase in social networking in recent years, personal injury claimants are now under more scrutiny then ever. While it is true that misleading claimants should not be rewarded for their dishonesty, not all accusations of fraudulent behaviour have merit. One picture or one comment, taken out of context can have a damaging affect on your client’s claim.

Kirsty Allen discusses the Official Solicitor’s role in clinical negligence and personal injury proceedings

The Office of the Official Solicitor is widely known for its work representing patients in Court of Protection proceedings about critical medical treatment. However, the Official Solicitor also performs an intrinsic function of our legal system, by enabling access to justice for vulnerable people who want to bring a clinical negligence or personal injury claim, and who do not have a litigation friend to bring proceedings on their behalf.

Natalia Siabkin and Suzanne Farg discuss the impact of the reforms five months after implementation

The new Jackson toolkit for reining in litigation costs arrived on 1 April 2013, as set out in the Civil Procedure (Amendment) Rules 2013 and accompanying Practice Directions. ‘Costs Management’ is the new concept. Proportionality and compliance, backed by the courts’ powers to give relief from sanction, have been with us for some considerable time but have now received transformative makeovers.

Richard Lodge and Raoul Lumb discuss the impact of the Act on clinical negligence cases

As an area of law largely focused on narratives of harm befalling individuals at the hands of a state funded and controlled body, it is perhaps surprising that Human Rights considerations do not feature more regularly, and more prominently, in clinical negligence litigation. Indeed, so rare are their impact that, for many practitioners in the area, knowledge of the interplay between traditional negligence remedies and less orthodox human rights-based claims will be considered somewhat esoteric.

Laura Sylvester and Verity Danziger examine the factors that will influence a judge to order a liability hearing

Contained within the court’s general powers of management, in Part 3 of the Civil Procedure Rules (CPR), is the power to direct a separate trial of any issue (CPR 3.1(i)). Consideration of a split trial features throughout the CPR rules and accompanying practice directions, including CPR Parts 26, 28 and 29.

Michael Caplan QC assesses the impact of recent developments in extradition on corporate practice

The long arm of American justice has often reached out across the Atlantic to grasp those in this country. Some have argued in vain that if they have committed any offence, given the facts it is more appropriate they should go on trial in the English courts. The Home Secretary announced recently that she is going to introduce a forum bar to enable those in such a situation to be tried here if it is in the ‘interests of justice’. But will this mark a drastic change in our relationship with the US and can business executives now rest easier?

Alice Anderson and Sarah Harris look at lessons to be learned from Mayer v Hoar

As any seasoned defamation lawyer will know, two of the principal defences to a defamation claim are the defences of absolute privilege and qualified privilege.

Suzanne Farg and Verity Danziger discuss the hurdles to overcome to establish a claim

The method by which the courts assess whether a future event would have occurred, but for the defendant’s negligence, is at the heart of any determination of causation and is often highly relevant to quantum. However, the authorities show a marked difference in the approach taken by the courts, with certain types of cases requiring that causation be proved on balance of probability, while in others an assessment of lost opportunity has been considered more appropriate. Additionally, this lost opportunity approach (lost chance) is proving increasingly important in the quantification of damages for personal injury and, in particular, in respect of lost earnings. This is well illustrated in the recent clinical negligence case of XYZ v Portsmouth Hospitals NHS Trust [2011], in which the claimant was awarded approximately £5.8m for loss of earnings and business opportunity.

Caroline DeLaney contemplates the new offence of squatting in a residential building, and the background to it

Tucked away in s144 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 is the new criminal offence of squatting in a residential building. The section provides that a person commits an offence if:

Dr Jock Mackenzie and Richard Lodge have another look at the Eeles principles

In our article ‘Advance with caution’, PILJ88, September 2010, p2, we concluded that at interim payment applications, the courts had adopted a cautious approach in applying the Eeles principles and, where necessary, had applied a gloss to the Court of Appeal’s guidance. The landscape in September 2010 appeared to be:

Chris McIntosh reviews the courts’ approach where the marital assets are inherited as in the decision in Robson v Robson

The case of White v White [2001] introduced the concept of checking the division of assets upon marriage breakdown against the yardstick of equality. In the intervening years, case law has progressed from the majority view in that case to be more in line with the approach of Lord Cooke. His Lordship doubted that there was much difference between using a yardstick of equality to check the division of assets or using equality as a starting point. It is now generally accepted that, following a long marriage, the starting point should be an equal division of assets and that good reasons are required to depart from this approach. ‘Good reasons’ cited include:

Richard Lodge reviews the court’s approach to applying Ogden Tables 1, 2 and 28

One of the first questions to be addressed when quantifying damages in a personal injury action is whether the claimant’s injuries will shorten his life expectancy. If so, the medical experts will be asked to predict how long the claimant is expected to live. Life expectancy is usually disputed and is often a hard fought issue because, as the estimate of the claimant’s life expectancy increases, so too does the value of the claim. Therefore, since the House of Lords set out the underlying principles to quantification of personal injury actions in the seminal case of Wells v Wells [1999], the courts have been asked to consider how the Ogden Tables should be used to calculate the life multiplier. Although the modern practice is to order periodical payments in respect of care and case management (usually by far the largest head of future loss), the life multiplier is still a calculation relevant to smaller heads of future loss not subject to periodical payments and, therefore, it plays a part in calculating multipliers applicable to a proportion of the future loss period.