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15/12/14

36 Family’s Piers von Berg successful in the Court of Appeal in a case concerning honour based violence and no orders for direct contact

Piers von Berg appeared for the Respondent Mother in the case of Re P–K (children) [2014] EWCA Civ 1602. 

King LJ held that the judge was entitled to depart from the recommendations of a CAFCASS Officer due to her limited analysis and rudimentary recommendations, which might have been appropriate in a less serious case. Although not explicit, the judge had implicitly applied the principles in Re W (children) (direct contact) [2012] EWCA Civ 999. Furthermore, the order was not undermined by an erroneous finding of fact at the welfare stage, as that was not a decisive factor in the making of an order for no direct contact. 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1602.html

10/12/14

Will Tyler QC appointed to Family Procedure Rule Committee

36 Family are delighted that Will Tyler QC has been appointed to the Family Procedure Rule Committee.

For full details see here: 

https://www.gov.uk/government/news/appointment-of-5-members-of-the-family-procedure-rule-committee 

03/12/14

36 Crime’s Adrienne Lucking QC successfully prosecutes Leicester ‘honour’ attacker

Adrienne Lucking QC successfully prosecuted the Leicester ‘honour’ attacker, Bharat Soma. Soma, 26, attacked Darshana Narotam, 18, and her boyfriend Prashant Govinde on a Leicester street after she refused to marry him.

Soma was found guilty on two counts of attempted murder and a third charge of wounding at Leicester Crown Court.

The judge sentenced him to 23 years.

Full details of the case can be found here: http://www.bbc.co.uk/news/uk-england-leicestershire-30244070 and http://www.bbc.co.uk/news/uk-england-leicestershire-29652420 

27/11/14

36 Property Team – December Newsletter

Please download a copy here.

17/11/14

36 Civil Litigation – Denton is not reason alone to appeal Mitchell decisions. The High Court denies Lord Chancellor relief from sanctions in legal aid dispute.

The Lord Chancellor v The Former Partnership of Taylor Willcocks and others [2014] EWHC 3664 (QB)  

by Stephen Bishop

There was a view in some quarters that following the decision in Denton there was a perceivable softening of the approach to relief from sanctions. As the Government itself discovered to its own cost, the decision in Denton does not mean that decisions made under Mitchell before Denton was handed down have become easy targets for appeals.

The High Court has denied an appeal by the Lord Chancellor against a refusal by Master Leslie to grant relief from sanctions in a case involving an attempt by the Legal Aid Agency (LAA) to reclaim £160,000 plus interest from a former law firm 16 years after the final payments were made.

The LSC carried out a nil assessment in January 2008 almost 10 years after the final payments were made, as Taylor Willcocks made no application for a detailed assessment, but as Mr Justice Globe said “nothing significant” occurred until the summer of 2013 when the LAA sent out a letter before action. They issued the claim form on 13 January 2014 and served it on 12 May 2014, the last day of the 4 month time limit, but without the particulars of claim. Shortly afterwards on 23 May 2014 they issued an application to extend time for service of the particulars. By the time that application was heard by Master Leslie on 4 June 2014 only draft particulars had been sent to the defendants. The application for relief was refused under the Mitchell guidance, Denton not having been handed down at that time.

The LAA argued that failure had no impact on other court users, did not cause any other hearings to be vacated, or require the relisting of any trial. The failure they said arose from a desire to save costs in the context of an atmosphere of agreeing extensions and a proposed standstill agreement. They also took the point that Master Leslie considered triviality and not, as suggested in Denton, “seriousness or significance”.

The Defendants argued that Master Leslie had applied Mitchell correctly, and the case did not require further consideration under the ruling in Denton.

Mr Justice Globe in his judgment:

  • Denton has clarified and amplified Mitchell in certain respects so as to avoid any misunderstanding and misapplication of the guidance given in Mitchell. The guidance has not been overruled. It has been strengthened. [70]
  • He gave a timely reminder [72] that an appeal judge is not there to “to make an independent first instance decision” but to consider the appeal in accordance with the appeal principles, of which he highlighted  G v G and Phonographic Performance Limited –v– AEI Rediffusion.
  • While Master Leslie did refer to triviality he found the breach “not to be trivial”; it was “very, very much the opposite, very serious” clearly in line with Denton. A reminder of the value of a good note and/or a transcript.
  • Master Leslie had described factors (a) and (b) to be “paramount” but only in the context of “the overall circumstances of the case” and that it was clear he had not applied those factors to the exclusion of all else. Thus the difference between the nuanced approach in Denton of regarding factors (a) and (b) as being “of particular importance” rather than “of paramount importance” was not significant against the full background of the case.

You may want, as ever, to consider the transcript of a refusal for relief carefully in the full context of the case and you should be cautious of arguing Triviality against Seriousness or Particular versus Paramount importance.

Furthermore, the fact that there is no impact on court time or listings is not necessarily sufficient to overcome a serious breach. Globe J said there was considerable force in the defendants’ submissions which included that the claim was stale. The work was done 16–20 years ago and the Defendants were prejudiced in defending the claim so long after the event.

Mr Justice Globe concluded the decision of the Master was one that he was entitled to reach. It was within the generous ambit within which a reasonable disagreement is possible. As costs followed the event, the Lord Chancellor would have to pay the defendants’ costs.

 

06/11/14

36 Bedford Row is recruiting for Junior Clerk (Crime)

For full details please click here

Covering letter and CV to michelle@36bedfordrow.co.uk by 6pm on 19th November

 

 

06/11/14

36 Employment – Holiday Pay Time Bomb?

John Cridland, Director General of the CBI, is unhappy. Whatever glow he acquired over the half term holiday has disappeared with the publication of the decision of the Employment Appeal Tribunal in Bear v. Fulton, which deals with the calculation of holiday pay. He thinks the decision will costs millions of pounds and bankrupt small firms.

But is he right? 

Not necessarily.

Traditionally UK employers have calculated holiday pay solely by reference to basic pay, excluding any overtime time pay. A straightforward reading of S.234 of the Employment Rights Act 1996 would seem to indicate that this is the correct approach.

However, in the case of Locke decided earlier this year, the ECJ held that as a matter of EU Law commission, payments had to be taken into account when calculating holiday pay. Locke creates very practical problems of implementation. A commission–based employee will normally receive commission whilst on holiday from deals done earlier in the year. However she will suffer a dip in take home pay at a later point because she did not earn commission while on holiday. The practical problem arising from Locke is how to identify and compensate for the dip.

The principle underlying Locke was even more significant: it was that workers should not suffer a dip in take home pay whilst on holiday since this would act as a disincentive to take the holiday which EU law regards as a health and safety issue.

That being so, the writing was on the wall for employers with regard to compulsory overtime. It is wholly unsurprising that the EAT held in Bear that the Locke principle applied to compulsory overtime and many employers have been accruing for this since Locke.

The employers’ complaint post Bear is that they have for many years been following S. 234(1) which the EAT has now ignored. It regarded itself as bound to implement EU law even if that meant rewriting UK law. This aspect of the matter may be addressed through appeal to the Court of Appeal and then the Supreme Court. Or it may be addressed through the ballot box in 2017. But either way the resolution is some distance away.

Meantime, will John Cridland’s fears materialise? There are two issues. The first is holiday pay obligations going forward and the second is the question of arrears.

As to the holiday pay going forward, the issue of what should be taken into account is now clear at least as a matter of principle. The UK government is not going to intervene in the short term because it is bound by EU law and any appeal to the Court of Appeal is at least a year away. Also, there are many ways for employers to mitigate the effect of Bear. For a start, it applies to only compulsory overtime. In addition, it is open to employers to vary the contract so as cut pay /allowances to take into account increase holiday pay costs.

As to arrears, extravagant fears have been expressed about backdated claims going back years and costing millions. As will be seen however, the judgement of the EAT in Bear calms these troubled waters.

According to S.27(1) of the Employment Rights Act 1996, claims for under payment of holiday pay have to be brought within 3 months of the underpayment; or within three months of the last of a series of underpayments.

The concern is that historic underpayments going back as many as 16 years might be part of a series of underpayments ending within 3 months of a claim.

However, the EAT noted that under Regulation 13 and 13a of the Working Time Regulations, workers (including employees) are entitled to 28 days annual leave per annum.

Regulation 13 implements the 20 days minimum required by EU Law and Regulation 13A provides for an extra 8 days as a matter of UK law. On any view, payment for the extra 8 days is governed by S. 234(1) not by EU Law.

The employers argued in Bear that payment in accordance with S.234(1) for the Reg 13A days would be sufficient to break the chain and the EAT accepted this argument. Moreover it also seems to have held that the Reg 13A days were “additional leave” and must be interpreted as being the latest of the days holiday taken any given year.

Therefore due payment of holiday pay for S.13A days will prevent any previous days holiday being part of a chain extending to the point 3 months before the claim. This aspect of the EAT’s decision may itself be successfully appealed. By the time that happens however time will have passed. And if in the meantime, an employer has paid in accordance with Locke/Bear those payments will themselves have broken the chain.

06/11/14

36 Property – Illegal Immigrants in the Private Rented Sector

Download the full article by Jonathon Rushton here.

23/10/14

Felicity Gerry QC speaking on Human trafficking, ISIS funding and Lawyers Duties at the 5th CILS Conference in Jakarta

For further details, please click here: http://www.felicitygerry.com/felicity-gerry-qc-speaking-human-trafficking-isis-funding-lawyers-duties-5th-cils-conference-jakarta/

20/10/14

We are delighted to announce that Jessica Franses has won the Lawyer Monthly Legal Award 2014 for Art Litigation Barrister of the Year UK

For full details and to read Jessica’s Art Law Awards profile, please click here.

Recent News

36 Family’s Piers von Berg successful in the Court of Appeal in a case concerning honour based violence and no orders for direct contact
Read more

Will Tyler QC appointed to Family Procedure Rule Committee
Read more

36 Crime’s Adrienne Lucking QC successfully prosecutes Leicester ‘honour’ attacker
Read more

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36 Civil Litigation – Denton is not reason alone to appeal Mitchell decisions. The High Court denies Lord Chancellor relief from sanctions in legal aid dispute.
Read more

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Felicity Gerry QC speaking on Human trafficking, ISIS funding and Lawyers Duties at the 5th CILS Conference in Jakarta
Read more

We are delighted to announce that Jessica Franses has won the Lawyer Monthly Legal Award 2014 for Art Litigation Barrister of the Year UK
Read more