eBulletin - Legal Update
Spring 2015

Welcome to the Spring 2015 edition of the College Chambers e-Bulletin, featuring articles on a variety of areas of legal practice. We hope you find this e-Bulletin interesting and topical. Please do not hesitate to contact us if we can advise further.

Article 1 - Boundary Disputes And Mediation – Can It Work? - Carol Davies

PROPERTY TEAM

Boundary disputes invariably involve warring neighbours with years of bitterness brimming through the litigation. There are invariably piles of maps, plans

and aerial photographs and folders full of old conveyance documents title deeds most of which do not help the critical issues involved! And it all costs a small fortune.

Indeed, in the case of Gilks & Another v Hodgson & Another [2015] EWCA Civ 5, the Court of Appeal on 15 January 2015 delivered the judgment in what was described as “a depressingly unfortunate dispute between neighbours” and a “Dickensian litigation”.

The judge at trial, which lasted 10 days, had to determine the whereabouts of the eastern boundary of the land owned by the claimant and whether the claimant’s land had the benefit of vehicular right of way for agricultural purposes. The trial judge found that such was the “toxic relationship between the parties” that most of the evidence was “at best unreliable”. Shame then that the parties, by the time the Court of Appeal gave its judgment, had expended an eye-watering £500,000 on the matter. This was said to be far more than the value of the strip of land and the right of way alleged that did not even involve the sole access to a residential property.

Conservative MP for Dover and Deal, Charlie Elphick is campaigning for compulsory mediation in cases involving property disputes and he has pressed the idea upon the Ministry of Justice. His proposals broadly seek such disputes to be dealt with by mediating surveyors from each side and an adjudicating independent surveyor if required to reach a conclusion if the parties cannot settle the issues. Some might say that such a process simply replaces lawyers with surveyors and the adversarial process, albeit in a different format and venue, would continue with substantial costs.

In January 2015, the MOJ rejected Mr Elphick’s proposals for mandatory mediation. That is not surprising since a core principle of mediation is that parties undertake it on a voluntary basis. Nevertheless, the MOJ confirmed its support for greater use of mediation. Mr Elphick’s campaign continues though and he is not backing down ... much like those involved in boundary disputes!

Can mediation in boundary disputes work? It can ... provided there is a skilled mediator who is able to climb over the mountainous hostility, wade through streams of toxic treacle and who has piles of patience and persistence to build bridges over mile deep chasms between the parties!

Article 2 - Bundles for Delinquents. - Tahina Akther

Sir James Munby’s final warning on bundles in Family Proceedings

I happened to be before the President of the Family Division last week on the very day he handed down the judgment in L (A Child), Re [2015] EWFC 15 (26 February 2015). This is a judgment regarding a public law care case in which Sir James Munby expressed his frustration and exasperation at the amount of documents being submitted in court saying it happened “too often”. In his damning judgment as to bundles and practitioners at the family courts he referred to PD 27 which states that unless the court has directed otherwise, parties can submit a bundle of no more than 350 sides of text. He said, however this rule is “frequently, indeed in some places routinely ignored”.

He continues in his judgment to say “This practice must stop and I have taken practical steps to stop it,’ he said. "From now on, counter-staff at court offices will be instructed to refuse to accept witness bundles, unless a judge has specifically directed that they are to be lodged, and to require whoever is trying to lodge them to take them away.”

“If witness bundles are sent by post, or by DX or delivered by couriers who refuse to take them away, they will, unless a judge has specifically directed that they are to be lodged, be destroyed without any prior warning necessarily being given. They will not be delivered to the judge and will not be taken into the courtroom by court staff.”

Munby said defaulters can have no complaint if they are exposed to public condemnation in judgments. Excessive bundles may also be subject to financial penalties.

“It is no use the court continuing feebly to issue empty threats" he added. “From now on delinquents can expect to find themselves subject to effective sanctions.”

In the judgment itself ( which were care proceedings) there were 989 pages worth of documents in the court bundle, including 131 pages of witness statements from the mother of the children concerned. The father of one of the children was from Slovenia and could not speak English. As a result, his solicitors had requested translations of the 591 pages which would cost £23,000.

Sitting at the Royal Courts of Justice in London, Sir James Munby said that it was only really necessary to have 51 pages translated. He added that, before a final hearing took place, the father’s solicitors should produce a summary of the “important substance” which should be no longer than 30 pages.

Although this was related to a care case, this Practice Direction refers to all family proceedings including Financial remedies.

Last week the matter I was involved in was a directions hearing in a family finance case and unfortunately for my opponent, they had filed a bundle in late and one that was in foolscap. The President expressed his frustration at my opponent hot off the judgment he had just delivered, referring to paragraph 15 of this judgment “ PD27A para 5.1 requires the bundle to be contained in an "A4 size ring binder or lever arch file" (emphasis added). Too often this requirement is ignored and the bundle is contained in a foolscap binder or lever arch file. This will not do.”

The President said this was not pedantry but the rules were there for a reason. Neither Counsel thought it was wise to inform the President that local practices vary as to the bundles at directions hearings, some courts even having local protocols dispensing with need for PD27 compliant bundles. Perhaps local practice especially before District Judges will change?

Those of you who practice in Civil law will know that in Civil Proceedings there are sanctions for non-compliance with Court orders and CPR. Following the decision of Mitchell and now Denton, the default position of a breach of a rule or court order is a strict enforcement, for which relief must be sought under CPR 3.9. I do wonder, if the default position for family proceedings is that the Court bundle will be destroyed or not allowed due to non compliance of PD27, will we be looking at similar relief from sanction applications?

You have been warned, and so had my opponent; don’t risk being called a delinquent or face consequences of non-compliance of PD27, you must get your bundles in order.

Article 3 - Fee hikes to price public out of litigation and leave small businesses with debts they are unable to afford to recover. - Patrick Goodings

The Law Society have indicated their strong opposition to the Government’s latest ‘reform’ which provides for a court fee increase in some cases of 600%.

Like many that have come before under the current establishment it seems the likely effect of the changes will lead to a decrease in the amount work available for the profession, but more worryingly people who need help most are likely to be severely prejudiced, with access to justice left for only those who can afford it.

The fee increases for money claims provide:

  • The fee for claims from £1 - £9,999 will remain unchanged.
  • The fee for claims from £10,000 - £199,999 will be five per cent of the claim.
  • The fee for claims £200,000 and above will be fixed at £10,000.
  • There will be a 10 per cent discount on fees for claims from £10,000 - £99,999 filed electronically.

As a practical example, under the current fee structure a money claim for £100,000 would carry an issue fee of £910. Under the new fees that same claim will carry a fee of £5000.

A number of concerning case studies are included within the ‘Enhanced Court Fees – Briefing for MPs and Peers’ document prepared by the Law Society in conjunction with a number of other professional organisations. They paint a bleak picture of things to come:

'I have just issued a claim for approximately £46,000 incurring a fee of £610 for a client. Under the new fee scheme that fee would be £2,300. My client is a widow and a pensioner and who can barely afford the £610. There is no possible way that she could afford £2,300, so that claim would have to be abandoned.' Solicitor (sole practitioner), Norfolk.

The Law Society, with the Bar Council among the counter signatories, have issued a pre action protocol letter to judicially review the government’s decision. The grounds on which the Law Society are challenging are as follows:

  • The proposals would be tantamount to 'selling justice' contrary to the principles of Magna Carta
  • The government does not have the power to raise fees for the purposes it has stated in the consultation - to make 'departmental savings'
  • The government is proceeding without evidence to justify the increases, which are effectively a tax
  • Consultees were not told how much money needed to be raised from enhanced fees or why - this is a breach of the government's own consultation principles, which state that sufficient reasons must be given for any proposal to permit intelligent consideration and response
  • When the government tabled its second round of proposals on higher fees for possession claims and general civil applications, it had already made up its mind about certain options, which is unfair
  • The government failed to allow representations on enhanced fees in combination with amendments to the remissions scheme (Law Society starts legal action over government's 'flat tax' on court fees 22/2/15).

The court fees affect debts owed to small businesses as well as personal injury and clinical negligence claims. In a recent survey, solicitors told the Law Society that higher court fees would:

  • Put people off going to court when they have genuine claims. Those out of work due to injury caused by negligence would not risk losing what little money they had left on court fees, even if they had a strong claim.
  • Provide an incentive for large companies to deny liability, knowing that the injured parties would not be in a position to fund expensive court fees. Under the current fees, large companies and insurers often settle out of court when they are clearly liable.
  • Lead to small business insolvency. Unpaid invoices of £10,000s or £100,000s mean cash flow and overdrafts are already stretched. For some companies, insolvency will be the only option (Law Society starts legal action over government's 'flat tax' on court fees 22/2/15).

Whatever the net effect, the changes will inevitably lead to a fall in litigation with many fearing that this Jurisdiction’s reputation as a world class court centre for the determination of claims will be significantly undermined with many international litigants looking for cheaper court centres in which to issue.

With court fees likely to be so high alternative dispute resolution once again becomes an attractive option. College Chambers has recently undergone a renovation to provide a purpose built mediation suite and Chambers is able to offer both arbitration and mediation. Please contact the Clerks on 02380230338 or visit www.college-chambers.co.uk for further information.

Article 4 - To Uplift or Not to Uplift? - Daniel Piddington

Since the Court of Appeal handed down their decisions in Simmons v Castle [2012] EWCA Civ 1039 and [2012] EWCA Civ 1288 there has been a great deal of debate between employment practitioners as to whether a 10% uplift in damages for injury to feelings in employment tribunals is appropriate. Whilst the EAT in The Cadogan Hotel Partners Ltd v Ozog [2014] UKEAT/0001/14 and The Sash Window Workshop Ltd v King [2014] UKEAT/0058/14 were in favour of applying the uplift, the decision in De Souza v Vinci Construction UK Ltd [2014] UKEAT/0328/14 was clear that the uplift is not applicable.

On 25 February 2015 Slade J handed down judgment in Chawla v Hewlett Packard Ltd [2015] UKEAT/0280/13/BA, in which she provided obiter comments in support of the latter interpretation.

In Chawla the original ET proceedings involved a claim for disability discrimination by a failure to make reasonable adjustments in communicating with him whilst he was on long term sickness absence, together with direct disability discrimination in respect of delay in joining the Respondent’s Share Purchase Plan and harassment allegations.

As part of a much larger series of grounds for appeal, the Claimant sought to appeal the level of award granted by the Employment Tribunal for the Claimant’s injury to feelings. Before the EAT (albeit not expressly pleaded in the Notice of Appeal) the Claimant submitted that the award should be updated to reflect the decision in Simmons v Castle.

At paragraphs 85 to 95 the EAT outline the original brackets proposed in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, the update to such provided in Da’Bell v National Society for Prevention of Cruelty to Children [2009] UKEAT/0227/09 and the more recent guidance provided by Underhill J in Bullimore v Pothecary Witham Weld (No 2) [2010] UKEAT/0189/10. The EAT went on to highlight that:

“The “uprating” of awards for injury to feelings in discrimination cases referred to in Da’Bell and Bullimore is undertaken where it is necessary to do so to reflect the current value of money. It may be necessary, therefore, for that reason to increase the amounts of awarded in previous guideline cases. The increase in guideline figures by 10% decided by the Court of Appeal in Simmons v Castle was to be made for a different reason for cases in which the then existing costs regime was to be changed by the implementation of the reforms recommended in the Review of Civil Litigation Costs by Sir Rupert Jackson. 

“As was recognised in Chapter 34 paragraph 3.5 of Sir Rupert Jackson’s report, there is a no costs regime in ETs and the EAT.  ET claims are not included on the list of specific types of litigation dealt with in the report.  The rationale for the uplift explained by the Court of Appeal in Simmons v Castle does not apply to litigation in the ET.  Accordingly the 10% uplift decided upon in that case does not apply to increase guidelines in cases on injury to feelings in discrimination cases in ET’s.  The principle to be applied by ET’s in making such awards is that in Da’Bell and Bullimore to assess the quantum for non-pecuniary loss in “today’s money”.”  

Whilst the decision on Chawla does provide clear support for the rationale in De Souza, the indication provided by Slade J in relation to the uplift is purely obiter and therefore, absent any readily available copy of the decision in De Sousa, Claimants are likely to continue to come armed with the decision in The Sash Window Workshop Ltd to support their suggestion that the 10% uplift should apply. It is clear that with conflicting EAT authority this issue is ripe for a determination by the Court of Appeal!

Daniel Piddington

Daniel has built a strong employment practice, representing both claimants and respondents across the country. Daniel has a wide level of experience ranging from unfair dismissal to complex multi-claimant discrimination and whistleblowing claims. Daniel is known for combining practical and pragmatic advice with an analytical and persuasive approach to both court and tribunal advocacy.

Article 5 - Financial Remedy: Joint lives ex spousal maintenance under threat? - Stephen Cotton

In my experience District Judges are all too readily minded to err on the side of caution and side with the principle of a joint lives order in the wife’s favour. The husband’s remedy? An application to vary. The onus having been placed on him. I wonder though whether in the light of the recently decided Wright case (millionaire racehorse surgeon) and the case of SS v NS [2014] EWHC 4183 (Fam) if there is now a change of direction.

May I remind you of the facts of the millionaire racehorse surgeon’s case. Ian Wright was ordered to pay £75,000 maintenance plus school fees following the ending of his marriage to Tracy in 2008. Of that figure, £33,200 represented spousal maintenance and it is that aspect that was subject of this Court of Appeal ruling. Ian Wright went to the High Court and was successful in having his obligation reduced. Tracey challenged that decision and was unsuccessful. In terms, she was told by Lord Justice Pitchford to ‘get a job’ and further she had ‘no right to be supported for life’. Dramatic and brutal. Divorcees with children over seven should go to work. Not a personal view but from the Court of Appeal itself. Lord Justice Pitchford stated that ‘the world of work has innumerable possibilities these days … vast numbers of woman with children just get on with it and Mrs Wright should have done the same’. He added ‘Mrs Wright has made no effort whatsoever to seek work or to update her skill … I am satisfied that she has worked on this basis … that she would be supported for life’.

An isolated case? Well, not if considered alongside SS v NS. Here, Mostyn J stated a degree of (not undue) hardship in making the transition to independence is acceptable. Additionally, if the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former.

For those advocates seeking to argue against, dare I say, a lifestyle choice of a wife then a full understanding of these two decisions may prove invaluable.

Article 6 - Contribuory Negligence: Hit or Miss! - Carol Davies

PERSONAL INJURY TEAM

As personal injury lawyers, we have all found ourselves spending time deliberating and arguing as to the appropriate level of contributory negligence that might be appropriate in certain cases. It often feels rather like a stab in the dark. A claimant will be contributory negligent if she breached her own duty to take reasonable care for her own safety. The defendant has to allege and prove such negligence. If the court is satisfied that there is fault on the part of both the claimant and the defendant, then it must make an apportionment. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 directs the court to reduce the claimant’s damages to such an extent as the court thinks “just and equitable having regard to the claimant’s share in the responsibility for the damage”. That test is inherently discretionary; all relevant factors have to be considered and the issue is very much a question of fact.

In the recent Scottish case of Jackson v Murray [2015] UKSC 5, the Supreme Court dealt with the issue of contributory negligence in respect of a road traffic accident whereby a 13-year old girl stepped out from behind her school minibus into the path of a car travelling at 50 miles per hour in a 60 mph area. The injuries were severe. The first instance judgment assessed the child being 90% contributory negligent. On appeal, the Extra Division reduced the child’s contributory negligence to 70%. The child appealed to the Supreme Court and Lady Hale, Lord Reed and Lord Carnwath (Lords Hodge and Wilson dissenting) allowed her appeal and re-assessed the child’s contributory negligence at 50%.

In the Supreme Court, Lord Reed said:

  • It is not possible for a court to arrive at an apportionment, which was demonstrably correct. The problem is not merely that the factors to consider are incapable of measurement but more fundamentally, the blameworthiness of the claimant and the defendant are “incommensurable” – the defendant acted in breach of duty owed to the claimant and the claimant has acted with a want of regard for her own interests. “The word “fault” in section 1(1), as applied to “the person suffering from damage” on the one had, and the “other person or persons” on the other hand is therefore being used in two different senses. The court is not comparing like with like.
  • It follows that apportionment under the 1945 Act is inevitably a ‘somewhat rough and ready exercise ... and that a variety of possible answers can legitimately be given’.

It is of some comfort that the Supreme Court confirms that the task of determining the extent of contributory negligence is tricky and uncertain. Not much help for our clients though!

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