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News


22/07/14

Holiday (Pay) from Hell – Richard O’Dair, Head of 36 Employment

Holiday pay may be a boon for employees but for employers, statutory holiday pay is increasingly problematic. The problem is not simply that employees can accumulate holiday pay whilst off sick. Nor even that if they fall ill on holiday they can switch to sick leave. The far more telling blows are the decisions of the ECJ to the effect that holiday pay must include not only basic pay but also an element to reflect other parts of the package which reward work done (as opposed to expenses payments) such as commission and, possibly, overtime.

The difficulties of calculation may be formidable. If earnings from commission are variable, the same is inevitably true of commission based holiday pay. A more potent problem is that it is possible for claims to extend backwards over time for many years. This is because, provided an employee brings a claim for underpayment of holiday pay within 3 months of the last day of underpayment, he can also claim for any previous days of underpayments since they count as being “part of a series of deductions” for the purposes of s.27 of the Employment Rights Act. In such a case there is NO limitation period.

Consider the following:

Helen works for a digital advertising company Incentive Ltd. Like four of her colleagues, she is a paid a basic of £1500 pw net and earns on average £3,000 net commission. She has just come back to work having had 10 days holiday. Her holiday pay has always been calculated on the basis of her basic pay £375/ week or £75/day. However Helen should have been paid an extra £150/day while she was away i.e. £1,500

However Helen had also taken a further 14 days holiday earlier in the holiday year for which she is now owed 14 x £150 = £2,100

Even more worryingly Helen has been with the company for 10 years and has taken 28 days holiday each year leading to an underpayment of £42,000.

Thus Helen is owed £45,600 and her 4 colleagues paid on a similar basis may have similar claims.

Clearly Incentive Ltd needs to take urgent action – including making sure all future payments of holiday pay are correct.


10/07/14

Insults and Injuries; the court’s approach to personal injury damages in financial remedy proceedings – 36Family’s Pranjal Shrotri writes in Family Law Week

To read the full article, please go here: 

http://www.familylawweek.co.uk/site.aspx?i=ed130814 

08/07/14

Jessica Franses Art Law Update: Quis Custodiet Ipsos Custodes? – Banksy’s Spy Booth

Read the full blog post here:  

http://jessicafranses.com/quis-custodiet-ipsos-custodes-banksys-spy-booth 

08/07/14

Civil Litigation – Litigation not a game for opportunists. Mitchell revisited.

By Stephen Bishop

Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906  

On 4 July, the Court of Appeal (Lord Dyson MR, Lord Justice Jackson and Lord Justice Vos) revisited Mitchell and the issue of relief from sanctions under CPR3.9 in the 3 joined appeals of Denton, Decadent and Utilise with the Bar Council and Law Society as interveners. The Court was concerned [37] that “some judges are adopting an unreasonable approach to rule 3.9(1)” and that Mitchell has been misunderstood, “leading to decisions which are manifestly unjust and disproportionate” [38].

The Court gave further guidance introducing a three–stage test to be applied by courts, including a change to an assessment of “seriousness or significance” of defaults as opposed to whether they were “trivial” per Mitchell. However it is unlikely that this will be an end to satellite litigation on compliance and relief as these 3 appeals were “extreme examples of judges misapplying rule 3.9” [97] and the Court was not unanimous as to whether CPR 3.9(1)(a) and (b) should be given particular weight. “Paramount importance” as set out in Mitchell has been replaced, in the opinion of the majority, by “particular importance”.

The resounding positive of the judgment, some may think, is that once again the Court of Appeal reinforced that the Jackson reforms were not intended to create “trip wires” and suggested, among other things, “heavy costs” penalties for respondents who unreasonably object to an application for relief. Litigants are advised to be reasonable and proportionate.

Guidance on the correct approach to relief from sanctions applications

The new approach can be summarised as:

1.  Identify the default and assess its “seriousness or significance” (instead of the “triviality” criteria introduced by Mitchell).  In considering this factor, the court could look at whether the breach imperils future hearing dates or otherwise disrupts the conduct of litigation. If the breach is determined to be neither serious nor significant, relief is likely to be granted and the court is unlikely to need to spend much time on the second and third stages.

2.   Consider why the default occurred (i.e. whether there is a good reason for it). The Court of Appeal was keen to stress the examples given in para 41 of Mitchell were no more than examples.

3.   Evaluate all the circumstances of the case, so as to enable it to deal justly with the application. An application for relief from sanctions for a non–trivial breach for which there was no good reason will not automatically fail, contrary to what people have taken incorrectly from Mitchell.

a.   At this stage relevant factors could include the promptness of the application; other past or current breaches; etc. [36].

b.   The majority view was that the need for litigation to be conducted efficiently, at proportionate cost, and to enforce compliance with rules, practice directions and court orders, 3.9(1)(a)&(b), were “of particular importance and should be given particular weight”.

c.    Jackson LJ dissenting was of the view [85] that “What the rule requires is that the two factors be specifically considered in every case. The weight to be attached to those two factors is a matter for the court having regard to all the circumstances.” He agreed with the Bar Council’s submission that (a) and (b) should have a seat at the table, not the top seats at the table.

Satellite litigation and non–cooperation

The Court was clear that “it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage.” [41]

Thus contested applications for relief should become exceptional as firstly, compliance should become the norm, and secondly, “because the parties should work together to make sure that, in all but the most serious cases, satellite litigation is avoided even where a breach has occurred.” [42]

The Court emphasised the need to be reasonable and proportionate [43]:

·  Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions;

·  An order to pay the costs of the application under rule 3.9 may not always be sufficient;

·  An unreasonable opposition might engage CPR44.11 thus the opposing party might face a substantial reduction in its costs recovery even if ultimately successful.

The judgment reinforces that compliance is the required behaviour of parties but compliance is not an end in itself and more important than justice in any given case. An echo of the past perhaps. Parties are advised to be realistic rather than opportunistic when considering a request for relief.

 

04/07/14

Criminal judicial review team provide webinar for London Criminal Courts Solicitors’ Association

David Ball, Piers von Berg and Saoirse Townshend provided a webinar yesterday on criminal judicial review for the LCCSA. It covered (i) how to get funding and obtain permission and (ii) commonly occurring areas of review in the police station and Magistrates’ Courts. It also included: new changes to legal aid, recent case law on challenging police cautions and adjournments. The recording is now available on the LCCSA’s website for members. 

Link – http://www.lccsa.org.uk/criminal-judicial-review-webinar-01072014/

 

03/07/14

36 Family extends a warm welcome to Charlotte Georges who joins as a tenant today

Head of 36Family Andrzej Bojarski said: 

‘Charlotte joins us from chambers in Sussex. She will add further strength to our already formidable child law team and help us to continue to develop our professional presence in Sussex and along the South Coast.’

 

03/07/14

36Family’s Andrzej Bojarski joins the team at www.FamilyArbitrator.com

For full details, please see here: http://www.familyarbitrator.com/andrzej-bojarski-joins-familyarbitrator-team

02/07/14

36 Civil – Property Update for June 2014 now available

To download a copy please click here

02/07/14

36 Bedford Row – Vacancy for Finance and Facilities Administrator

Chambers is seeking someone who will report to the Head of Finance and Administration, and provide support in the following key areas:

  • Financial Control
  • Chambers Administration
  • Barrister Services
  • Pupillage and Personnel
  • Quality Control
  • General Administrative support

A comprehensive job description is available on request from Chambers People.

The successful candidate will demonstrate appropriate and relevant administrative experience gained in a chambers or similar environment.

Please click here to see further details

 

30/06/14

Felicity Gerry QC writes for The Times on The Advocate’s Gateway & appropriate advocacy in relation to trials involving vulnerable people

To read the article please follow the link here: http://www.thetimes.co.uk/tto/law/article4129937.ece

To access the toolkits developed by The Advocates Gateway go to www.advocatesgateway.org

30/06/14

Felicity Gerry QC speaks today to Sky News and LBC Drivetime to explain the Rolf Harris verdicts, evidence of propensity, dealing with historic cases and global sexual abuse

She will be on BBC Breakfast radio tomorrow. Felicity specializes in complex civil cases and criminal trials involving child and adult abuse from a claimant and Defence perspective and can be instructed to advise on appeals.

25/06/14

36Family’s Hannah Markham writes in Family Law Week as co–author of “Living with Re B–S: Re S and its implications for parents, local authorities and the courts”

To read the full article, please click here

19/06/14

Felicity Gerry QC to speak at the APIL Child and adult abuse conference 2014 on Friday 20th June 2014 on civil claims for sexual abuse

For more information click here: http://www.apil.org.uk/event-details.aspx?ID=2258 

16/06/14

Felicity Gerry QC writes Cross Examination is a Necessary Evil for Huffington Post

Read the article here: http://www.huffingtonpost.co.uk/felicity-gerry/witness-cross-examination_b_5495091.html 

 

12/06/14

Felicity Gerry QC successfully appeals conviction for importation and making indecent images of children

Felicity Gerry QC today successfully appealed a conviction for importation and making indecent images of children on the basis that the jury had not been properly directed on the mental element for the offences. The defendant’s case was that he downloaded spanking images of adults. The prosecution did not seek a retrial on the quashed convictions. The defendant remains convicted of possession offences but his sentence was reduced to a conditional discharge from the date of conviction which has now expired. The case threw up an interesting point on whether a pseudo photograph could cover an image of an adult dressed as a child. Felicity specialises in this & other types of cybercrime. 

For further details, please click here.

 

12/06/14

Felicity Gerry QC attends global summit on sexual violence

Felicity Gerry QC attended the global summit on sexual violence in conflict zones this week. Felicity specialises in issues arising from sexual offending. To read what she wrote on this issue with human rights academic Jeswynn Yogaratnam for Halsbury’s Law Exchange click here: 

http://www.halsburyslawexchange.co.uk/sexual-violence-in-conflict-zones-practical-solutions/

09/06/14

36 Bedford Row seeks paralegal for 3–6 months to assist with development of employment law work

Chambers is currently looking to recruit a paralegal for 3–6 months to assist with the development of employment law work.  The role will comprise 5 days per week, 8.5 hours per day with some Saturday and evening working as and when required. 

Duties include answering enquiries for Direct Access Clients and arranging initial interviews with Barristers, writing material for website, and other social media and litigation support.

The successful candidate will have good academic qualifications having completed the BPTC or LPC, and will have an in depth knowledge of employment law. You will have good interpersonal skills and telephone manner, and should be able to demonstrate strong legal writing skills. Practical experience of employment litigation (e.g. at FRU) is likely to be crucial. Salary £9,000 gross (six month contract in the first instance, subject to 3 month probationary review).

Applicants will be expected to submit a sample of written work and to attend a rigorous interview process.

All applications in writing to our Civil Practice Manager – Chris Lane via chris@36bedfordrow.co.uk or 36 Bedford Row London, WC1R 4JH, DX: 360 LDE



09/06/14

What’s new in extradition law? A guide to the recent changes to law and procedure – Monday 23rd June 2014

What’s new in extradition law? A guide to the recent changes to law and procedure

Monday 23rd June 2014 – 6–8pm 

at 36 Bedford Row, London WC1R 4JH

Presented by Saoirse Townshend, Emile Pottle, Kathryn Howarth & Florence Iveson


Topics to be covered     

• What to expect from the New Criminal Procedure Rules and Appeals Process  

• New bars: proportionality and trial readiness  

• Forum bar a year on: how has it fared so far and will we see more of it?  

• What’s big at WMC: a look at some of the recent developments in Article 8 and Section 20     

 

3 CPD points applied for     

Talk will be followed by drinks and canapés    

Please RSVP  by Monday 16th June to michelle@36bedfordrow.co.uk using the subject line “Extradition Seminar”

03/06/14

Felicity Gerry QC to judge a Moot at Oxford University on the current state of the law in relation to joint enterprise murder on 17th June 2014

Felicity will judge the Moot at St Catherine’s College, University of Oxford on 17th June 2014.

02/06/14

Saoirse Townshend returns from election monitoring mission to the Ukraine to observe the Presidential elections held on 25 May 2014

Please see here (http://www.osce.org/odihr/elections/ukraine/119078?download=true) for the Organisation for Security and Cooperation in Europe’s Preliminary Findings report on the transparency and fairness of the election process.

30/05/14

Property Team Newsletter – Spring 2014

Please download a copy here

30/05/14

Property Team E–Shot – May 2014

 Please see a copy of the Property Team May E–Shot with updates here

Recent News

Holiday (Pay) from Hell – Richard O’Dair, Head of 36 Employment
Read more

Insults and Injuries; the court’s approach to personal injury damages in financial remedy proceedings – 36Family’s Pranjal Shrotri writes in Family Law Week
Read more

Jessica Franses Art Law Update: Quis Custodiet Ipsos Custodes? – Banksy’s Spy Booth
Read more

Civil Litigation – Litigation not a game for opportunists. Mitchell revisited.
Read more

Criminal judicial review team provide webinar for London Criminal Courts Solicitors’ Association
Read more

36 Family extends a warm welcome to Charlotte Georges who joins as a tenant today
Read more

36Family’s Andrzej Bojarski joins the team at www.FamilyArbitrator.com
Read more

36 Civil – Property Update for June 2014 now available
Read more

36 Bedford Row – Vacancy for Finance and Facilities Administrator
Read more

Felicity Gerry QC writes for The Times on The Advocate’s Gateway & appropriate advocacy in relation to trials involving vulnerable people
Read more

Felicity Gerry QC speaks today to Sky News and LBC Drivetime to explain the Rolf Harris verdicts, evidence of propensity, dealing with historic cases and global sexual abuse
Read more

36Family’s Hannah Markham writes in Family Law Week as co–author of “Living with Re B–S: Re S and its implications for parents, local authorities and the courts”
Read more

Felicity Gerry QC to speak at the APIL Child and adult abuse conference 2014 on Friday 20th June 2014 on civil claims for sexual abuse
Read more

Felicity Gerry QC writes Cross Examination is a Necessary Evil for Huffington Post
Read more

Felicity Gerry QC successfully appeals conviction for importation and making indecent images of children
Read more

Felicity Gerry QC attends global summit on sexual violence
Read more

36 Bedford Row seeks paralegal for 3–6 months to assist with development of employment law work
Read more

What’s new in extradition law? A guide to the recent changes to law and procedure – Monday 23rd June 2014
Read more

Felicity Gerry QC to judge a Moot at Oxford University on the current state of the law in relation to joint enterprise murder on 17th June 2014
Read more

Saoirse Townshend returns from election monitoring mission to the Ukraine to observe the Presidential elections held on 25 May 2014
Read more

Property Team Newsletter – Spring 2014
Read more

Property Team E–Shot – May 2014
Read more