Halcyon Chambers Attends 28th Annual Asian Legal Awards


Members of Halcyon Chambers attended the 28th Annual Asian Legal Awards at the Royal Lancaster Hotel in London organised by the Society of Asian Lawyers.

It was great to catch up with so many of our colleagues from the legal world.

We thoroughly enjoyed the evening and congratulations to all the nominees and winners. We look forward to the next one.

The Supreme Court hands down decision in Canada Square Operations Ltd v Potter

Article by Harry Owen

On 15 November 2023 – after months of anticipation – the Supreme Court finally handed down its judgment in Canada Square Operations Ltd (Appellant) v Potter (Respondent) [2023] UKSC 41.

The judgment affirms the decision of the Court of Appeal on the issue of deliberate concealment; however the Supreme Court rejected the Court of Appeal’s finding that “deliberately” can also mean “recklessly” in the context of this case.


The case involved a loan and an associated payment protection insurance policy (“PPI Policy”), taken out with Canada Square, by Mrs Potter in July 2006. Mrs Potter was not advised by Canada Square that they would be paid over 95% of the premium for the PPI Policy by way of commission.

In December 2018, Mrs Potter issued proceedings against Canada Square, seeking recovery of the sums paid by her, under the terms of the PPI Policy. In defending the claim, Canada Square argued that the claim was statute barred, as the limitation period of 6 years imposed by section 9 of the Limitation Act 1980, had expired.

Mrs Potter sought to rely on section 32 of the Limitation Act 1980, arguing that the six year limitation period did not begin to run until she had discovered the commission being paid to Canada Square. Mrs Potter had become aware of the commission in 2018.

The County Court decided that section 32 of the Limitation Act 1980 applied and ordered Canada Square to pay Mrs Potter £7,953.00. Canada Square appealed, unsuccessfully, to both the High Court and to the Court of Appeal. Canada Square finally appealed to the Supreme Court.


The Limitation Act 1980 sets out the limitation periods for bringing different kinds of legal claims.

Section 32(1)(b) postpones the commencement of the ordinary limitation period where any fact relevant to the Claimant’s right of action has been “deliberately concealed” from them by the Defendant.

Section 32(2) provides that, for the purposes of section 32(1), “deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”

In deciding whether Mrs Potter’s claim was statute barred, the Supreme Court clarified the terms “deliberately concealed” in section 32(1)(b) and “deliberate commission of a breach of duty” in section 32(2).


The Supreme Court dismissed the appeal, deciding that Mrs Potter’s claim was not statute barred, on the basis that section 32(1)(b) of the 1980 Act postponed the commencement of the six-year limitation period until Mrs Potter was advised that the premium was likely to have included substantial commission, which occurred in November 2018.

A Claimant relying on section 32(1)(b) to postpone the start of the limitation period imposed by the Limitation Act, must prove that a fact relevant to the Claimant’s right of action was deliberately concealed by the Defendant.  The Supreme Court clarified the meaning of the words “deliberately” and “concealed” in this context.  In relation to the meaning of “concealed”, the Supreme Court held that a fact will have been concealed if the Defendant has kept it secret from the Claimant, either by taking active steps to hide it or by failing to disclose it. The only requirement is that the Defendant deliberately ensures that the Claimant does not know about the fact in question and so cannot bring proceedings.

On the meaning of “deliberately”, the Supreme Court held that the Defendant’s concealment of a relevant fact will be deliberate only if the Defendant intended to conceal that fact.


It is not clear at present, how many cases will be affected by the Supreme Court’s decision in refusing the Defendant’s appeal in this case.  While there is clarification of “deliberate concealment”, it is notable that the Supreme Court did not consider the “reasonable diligence” limb of s.32(1)(b) as it did not form the subject of the creditor’s defence or appeal at any stage.

It appears likely that the upholding of the Court of Appeal’s decision and the clarification provided by the Supreme Court of “deliberate concealment” will do little to resolve the ongoing issues of limitation raised between parties in PPI commission claims which remain unaffected by the Supreme Court’s decision in Smith and another (Appellants) v. Royal Bank of Scotland plc (Respondent) [2023] EWCA Civ 1832. See article by Katie Wilkinson here.

Injunctions under the Protection from Harassment Act 1997 – The Value of Undertakings

Article by Katie Wilkinson

Commencing a claim for an injunction and damages under the Protection from Harassment Act 1997 can no doubt be a daunting prospect for individuals, particularly those who represent themselves as Litigants in Person.

Claimants usually seek an interim injunction to be put in place whilst the litigation proceeds to a conclusion.

Whether an interim injunction application is made ex parte, meaning without notice to the Defendant, or on notice to the Defendant, the Court will usually list a hearing within the space of a few days/weeks to consider whether an interim injunction should be granted and/or whether a previously granted interim injunction should continue.

It is common for the issue of undertakings to arise at the first hearing where a Defendant attends.  Solicitors and Barristers are familiar with the offer and acceptance of undertakings, but Litigants In Person may not be so familiar.

An undertaking is effectively a promise made to the Court to be bound by certain requirements.  In cases involving harassment, a party may, for example, offer an undertaking not to approach or speak to the complainant.  Sometimes, an undertaking will be offered that is identical to the terms of the injunction sought.

A Court may decide to discharge an interim injunction and replace it with the offer of an undertaking from a Defendant.  In other circumstances, a Claimant may agree to the replacement of an interim injunction with an undertaking and may even agree to compromise the entirety of the proceedings by way of undertaking.

Undertakings are not usually given on the admission of liability, therefore a Defendant offering an undertaking may do so on the basis that they deny any wrongdoing but will agree to refrain from certain actions going forward.  The Court often views undertakings as ‘if I do not intend to harass X, where is the harm in not agreeing to harass X’.

Whilst a Claimant who feels victimised by harassment may find it difficult to accept an undertaking in circumstances where wrongdoing is denied, undertakings are often a sensible way to resolve disputes.

Litigation can be very expensive.  The Court process can be lengthy, and the final determination of the claim can take months to achieve.  A loss at trial to a Claimant who feels victimised may also be unpalatable.

An undertaking can act to de-escalate tensions and provide finality to parties who may struggle to pay for legal representation, or who may benefit from a swift end to the litigation.

A breach of an undertaking is actionable as a contempt of court and may result in a fine or imprisonment for the defaulting party.  Undertakings are therefore extremely important and serious in their effect.  Any party giving an undertaking will be made aware of the consequences of breach and may be required to sign the undertaking in the presence of a Judge.

Whilst an undertaking may not be the perfect solution for some Claimants, their value should not be underestimated, as undertakings are very often a sensible resolution to proceedings.

To Issue or to Statutory Demand?

Article by Thomas Wheeler

A Creditor who is owed a sum of money from another who does not make payment in a timely fashion, will understandably be frustrated. After all, the Debtor is withholding sums which are rightfully yours and so you wish to recover that money as soon as possible.

The question to then pose is “how do I go about this?”

There are a number of ways of obtaining the sums owed, one of which is to go through the Court and obtain a judgment. This judgment can then be enforced by, again, a number of means. This can be lengthy and costly depending on the level of the sums owed and the time it takes to go through the Court process. However, at the end of those proceedings, you will have had a determination of whether you are owed those sums or not.

Another option is to issue a Statutory Demand on the Debtor. This is the pre-cursor to bankruptcy proceedings and can be a much shorter process than making a claim.

However, except where a Statutory Demand is based on a judgment from the Court, there must be careful consideration as to the appropriateness of pursuing this method of obtaining a debt owed. If such consideration is not properly undertaken, the implications could be considerably costly.

The bankruptcy legislation and the Insolvency Rules are designed to deal with the bankruptcy process summarily – the Court will generally not hear oral evidence or get involved with substantial disputes between the Creditor and the Debtor during this process.

And therein lies a problem for any Creditor who seeks to make someone bankrupt: “Are the sums owed to me likely to be disputed?”

Upon serving a Statutory Demand, a debtor has 18 days to apply to set it aside, or 21 days to pay the sums due before a Bankruptcy Petition can be presented to the Court. Should there be an application to set aside made by the Debtor, the Court will have to make a determination as to whether the Statutory Demand should be set aside.

Under Insolvency Rule 10.5(5), the Court may grant the application to set aside if:

“(a) the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt specified in the statutory demand;

(b) the debt is disputed on grounds which appear to the court to be substantial;

(c) it appears that the creditor holds some security in relation to the debt claimed by the demand, and either rule 10.1(9) is not complied with in relation to it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.”

The most common argument is that the debt is disputed on grounds which are substantial. The Court will not hear evidence from the parties, but only see what is written down in witness evidence and documents. The Court will hear oral argument from the parties or their representatives.

In determining whether there is a substantial dispute, the Court will look at whether the defence raises a genuine triable issue (even if improbable) – see Markham v Karsten [2007] EWHC 1509 (Ch).

Despite the wording “substantial” indicating a high threshold for such a Defence, the Court merely needs to be satisfied there is an issue which can be tried, even if such an issue is unlikely to succeed.

Should the Debtor be successful in setting aside the Statutory Demand the Debtor would be entitled to their costs. These could be substantial if they have legal representation, and in some cases could be more than the debt being sought by the Creditor.

The Creditor would then be back at square one, still owed a debt, but will have to pay out costs to the Debtor.

It is for this reason that a Creditor who wishes to recover a debt of over £5000.00 should consider whether this debt could be disputed, for whatever reason. If there is likely to be a dispute, then bankruptcy proceedings may be inappropriate and a claim through the Court would be the better choice.

Chambers and Partners 2024


Following another successful year for Halcyon Chambers, we are delighted to announce that Tony Muman continues to be ranked Counsel in both areas of Administration/Public Law and Immigration Law in the prestigious Chambers and Partners Bar Guide 2024, released today.

  Tony Muman

Chambers is also very proud to announce that both Jonathan Bott and Thomas Green of our family team have also achieved rankings for their work in Family and Children cases.

Jonathan BottThomas Green

Denton Principles and Default Judgments – Restating the Obvious?

Article by Jamie Hughes

The Court of Appeal in FXF v English Karate Federation Ltd & Anor [2023] EWCA Civ 891 has determined and reiterated in no uncertain terms that the Denton principles apply in full to applications to set aside a default judgment.

It had previously been thought that this issue had been put to bed decisively by the Court of Appeal in a string of cases including Gentry v. Miller [2016] EWCA Civ 141. This principle was applied by the High Court in Redbourn Group Ltd v. Fairgate Development Ltd [2017] EWHC 1223 (TCC) and later by the Court of Appeal in Family Channel Ltd v. Fatima [2020] EWCA Civ 824 to the set aside of a judgment entered for non-attendance under CPR 39.3.

However, obiter comments made in Cunico Resources NV v. Daskalakis [2018] EWHC 3382 (Comm) by Andrew Baker J and the decision in PXC v. AB College [2022] EWHC 3571 (KB) cast some unusual doubt on the subject. In particular, in PXC, the abstract reference to the purpose of CPR 13.3 being “to promote justice” did not aid in providing clarity of thought.

Thankfully, FXF provides very clear (and hopefully definitive) authority on the point. The judgment provides a more detailed background of the law which it is not necessary to repeat here but is useful reading for practitioners. In analysing the law, the judgment reads:

“59. I hope that I have now dealt with all the truly relevant authorities. I have done so at some length, because they show a difference of approach that requires resolution by this court. As Birss LJ explained in argument, there are really three categories of case: (i) cases where the rule or order expressly provides for the sanction that will apply on non-compliance (e.g. failure to file witness statements on time), (ii) cases where the rule does not expressly state the sanction which applies for non-compliance, but permission of the court is needed to proceed (e.g. failure to file a notice of appeal on time), and (iii) cases where a further step is taken in consequence of the non-compliance, such as the entry of a default judgment (as in this case) or the striking out of a claim for non-attendance at trial.

61. This case falls squarely into Birss LJ’s third category, and I shall, therefore, concentrate on that category, and particularly on applications to set aside default judgments.

63. In my judgment, the Denton tests do, as I have said, apply to applications to set aside default judgments under CPR Part 13.3. There are a number of reasons for this.

Providing the lead judgment, Sir Geoffrey Vos, Master of the Rolls, outlined five reasons for his determination that the Denton rules apply to setting aside a default judgment:

“64. First, just as Moore-Bick LJ held analogously in Hysaj, it is now far too late to depart from the position enunciated clearly by the Court of Appeal in Hussain, Piemonte, Gentry, and Family Channel. Piemonte was a default judgment case and decided expressly that the Denton tests applied. The words at [40] in Piemonte that I have just mentioned did not detract from that decision. “All the circumstances” and the overriding objective are directly relevant at the third stage of the Denton analysis.

65. Secondly, Matthews was not a case about setting aside a default judgment. Rule 26.7 of the Trinidad and Tobago CPR is in a different form from our CPR Part 3.9…CPR Part 3.9 was amended for the reasons and in the manner explained in Denton and Mitchell. It was intended to send a general signal to the legal community that there would be a “tougher, more robust approach to rule-compliance and relief from sanctions” in support of the revised overriding objective. This was the origin of the Denton tests deriving, as they do, from the express words of CPR Part 3.9. Accordingly, I do not think that this court would now be justified in preferring the reasoning in Matthews to that, taken together, in the 6 forceful decisions of this court in Hussain, Mitchell, Denton, Piemonte, Gentry, and Family Channel.

66. Thirdly, the Denton tests are actually peculiarly appropriate to the exercise of the discretion required once the two specific matters mentioned in CPR Part 13.3 (merits and delay in making the application to set aside) have been considered. The first two tests focus attention on the delay in complying with the requirements of CPR Part 15.2, which provides that “[a] defendant who wishes to defend all or part of a claim must file a defence”, and the third test brings into consideration all the circumstances of the case including the two critically important stated factors. What we said at [34] in Denton bears repetition:

Factor (a) makes it clear that the court must consider the effect of the breach in every case. If the breach has prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost, that will be a factor weighing in favour of refusing relief. Factor (b) emphasises the importance of complying with rules, practice directions and orders. This aspect received insufficient attention in the past. The court must always bear in mind the need for compliance with rules, practice directions and orders, because the old lax culture of non-compliance is no longer tolerated.

68. Fourthly, as I indicated at [51] above, Gentry actually provides an example of how the exercise under CPR Part 13.3 and the application of the Denton tests ought to be undertaken. The merits are dealt with first at [28]. Next, the delay in making the application to set aside is dealt with at [29]-[35]. I turned then to consider the Denton tests, dealing with the pre-judgment delay and the excuses for it at [36], and “all the circumstances of the case, so as to enable [the court] to deal justly with the application, including [factors (a) and (b)]” at [37]. In some – perhaps many – cases, additional factors included in the overriding objective (or even other relevant factors) will need to be considered at this stage when the court is exercising its discretion. The relevant factors are not closed. What is critical, however, I can repeat once again for yet further emphasis, is the need to focus on whether the breach has prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost, and the need to enforce compliance with rules and orders.

69. My fifth reason must be stated without it being meant to be unduly critical. The judges in Cunico and PXC seem to me to have adopted an unduly academic approach to the problem with which they were faced. The default judgment entered under CPR Parts 15.3 and 12.3 is obviously a sanction “imposed for any failure to comply with any rule”, in the sense that it would not have been granted if the defendant had filed its defence in compliance with the mandatory provisions of CPR Part 15.2. These decisions took an unduly nit-picking approach to what has been deliberately intended to change the culture of civil litigation. Parties to civil proceedings and their solicitors need fully to understand that flouting rules and court orders will simply not be tolerated.

Thanks to the Court of Appeal’s helpful analysis of all previous authorities on the point as well as a very clear and rational conclusion, we should now hopefully be able to expect no further litigation on this question.

As bears remembering in all litigation, the judgment ends with a stark reminder from the Court of Appeal that “parties would be well advised to make absolutely sure that they comply with the rules in the CPR. They may expect no indulgence from the court if they do not.” It is clear the objective in applying the Denton principles to CPR 13.3 that the Court regards default judgments as serious and the Denton test will be applied in full force to any applications to set them aside.

Halcyon Chambers invites Applications for Tenancy

Halcyon Chambers is inviting applications to join our Civil, Family and Immigration teams. It is an exciting opportunity to join a growing team of diverse and specialist barristers.

More details can be found on our Tenancy page.

All applications and queries should be directed to Senior Clerk, Chris Ridley. All correspondence will be dealt with in the strictest confidence.

Secret commissions: the scope and effect of Wood v Commercial First

Article by Trevor Berriman

As PPI disputes concerning undisclosed commissions following Plevin appear to be slowing in number, the Court will no doubt be seeing an increase in a new wave of claims focussing on secret commissions of the type seen in Wood v Commercial First Business Ltd and Others [2021] EWCA Civ 471.

In that case the Court of Appeal ruled that it was not necessary to find the existence of a fiduciary duty to grant civil remedies for the payment of a ‘bribe’ or ‘secret commission’.  The case involved the services of a Broker who had been retained by a customer to source funding options and the court identified wide-ranging circumstances in which a borrower can recover a secret profit or rescind an agreement as a result of an undisclosed commission.

The judgment also considered and clarified the level of disclosure necessary for a commission to be deemed “half-secret”.

The background to the cases under appeal were similar and involved the use of the same broker. The Borrowers had obtained loans secured against their properties and, unbeknown to them, the broker had received commission from the lender.  The commissions had not been disclosed to the Borrowers.

The Borrowers sought rescission of the loan agreements and the question arose as to whether the Lenders could be liable if there was no fiduciary relationship between the Broker and the Borrowers.

Wood held that it was not necessary for a fiduciary relationship to exist to find civil liability for the payment of bribes or secret commissions.

The question to be answered by the Court was whether the Broker was “under a duty to provide information, advice or recommendation on an impartial or disinterested basis”. The court also summarised it as “the duty to be honest and impartial”.

Remedies for bribery (or the payment of a secret commission) are available in both common law and equity. These remedies include:

  • Money had and received (i.e. recovery of a sum equal to the amount of the secret commission) as against either payer or the payee; or
  • Damages for fraud relating to any loss suffered (against the payer or the payee); and
  • Rescission as of right, subject to counter-restitution.

The decision in Wood is likely to have wide reaching implications for lenders.  There is a marked increase in the number of cases being brought by claimants seeking to apply the Wood principles to car finance agreements and even utility contracts where a broker/intermediary has been used.

Claimants and Defendants are expected to be at odds over the scope and reach of Wood, and time will tell whether such claims will result in bulk litigation in the coming months.  

Adjournments in Bankruptcy Proceedings

Article by Thomas Wheeler

A question frequently asked by Creditors pursuing bankruptcy proceedings, and Debtors trying to avoid a Bankruptcy Order, is whether a Court is likely to adjourn the hearing of the Petition.

Adjournment applications are usually made by Debtors who are seeking time to sort out their financial affairs, with a view to discharging the Petition debt and avoiding a Bankruptcy Order.  Such applications are frequently opposed by Creditors who may have already been waiting a length of time to be paid, and who may doubt a Debtor’s ability to pay.

The case of State Bank of India v Dr Vijay Mallya [2020] EWHC 96 (Ch) is the authority to be relied upon when making or opposing an application to adjourn.  This case was heard in the High Court by Chief Insolvency and Companies Court Judge Briggs who considered the previous authorities on the test to be applied.

The Court has a broad discretion as to whether to grant an adjournment application, as provided by s.266(3) Insolvency Rules 1986 which reads:

“The Court has a general power, if it appears to it appropriate to do so on the grounds that there has been a contravention of the rules or for any other reason, to dismiss a bankruptcy petition or to stay proceedings on such a petition; and where it stays proceedings on a petition, it may do so on such terms and conditions as it thinks fit.”

In the case of Re A Debtor [1920] KB 432 the Court identified at least three circumstances where an adjournment may be sought. First to remedy technicalities; secondly “to enable the evidence on either side to be fully heard and thirdly to enable the debtor in the event of his being able to do so, to satisfy [the Court] of his power to pay his or her debts in full.”

In line with earlier authorities, Mallya noted that to successfully obtain an adjournment, the Court would need to be satisfied that there was ‘a reasonable prospect that the petition debts would be paid in full within a reasonable time’.

The evidence before the Court will be of significant importance.  A Debtor would need to demonstrate that he has the means to pay the Petition debts in full, and that such payment can be made within a period that the Court considers reasonable.

The authorities demonstrate a varied approach to what period may be considered ‘reasonable’, and the Court will consider all of the evidence to determine what is reasonable in the circumstances.

Whilst Creditors may be dissatisfied by the granting of an adjournment, their position is to a certain extent protected.  The Court will not usually order repeat adjournments over a long period of time, the adjournment itself may result in the Petition debts being paid in full, and if the debt is not paid the Court is far more likely to make a Bankruptcy Order on the next occasion.

Debtors should be aware, however, that if a Petition debt is discharged by payment in full, there may be supporting creditors waiting to take over as Petitioning Creditor.  A Debtor should therefore take steps to address all of his debts during the adjournment period.

Tenant – Barbara Gonzalez-Jaspe

Halcyon Chambers is delighted to announce that Barbara Gonzalez-Jaspe has accepted an offer of tenancy. This comes after her successful completion of pupillage under the supervision of Suzanne Hodgkiss.

During her Pupillage year, Barbara gained experience in several Chambers’ key practice areas including Family, Civil and Immigration Law.

Barbara’s practice will cover all areas of Chambers’ core specialisms and all enquiries in relation to Barbara’s work and availability to accept instructions should be directed to the Clerks.

Opportunity to Join Halcyon Chambers’ Clerking Team

Halcyon Chambers are now inviting applicants to join our clerking team.

Chambers operates from a modern and spacious office, located in Birmingham City Centre.

Successful applicants(s) will report to the Senior Clerk and will have undertake duties including:

  • Diary and Practice Management
  • Fee negotiation
  • General administrative Support

Person specification:

The successful candidate(s) will have excellent communication skills (verbal and written), the ability to multi-task and operate within a fast-paced and demanding environment, and will be comfortable using their own initiative as well as working as part of a team. A confident and positive attitude is essential, and applicants must be well organised with attention to detail.

Previous work experience within a Barristers’ Chambers or professional client services environment is desirable.

Remuneration details:

  • Starting salary of £25,000 – £30,000 for a full time and permanent role dependant on experience.

All applications will be treated in the strictest confidence and should be emailed for the attention of the Senior Clerk, Chris Ridley via email at cridley@halcyonchambers.com

New Tenant – Steven Evans

Halcyon Chambers is delighted to announce that Steven Evans has accepted an offer of tenancy. This comes after his successful completion of pupillage under the supervision of Katie Wilkinson.

During his Pupillage year, Steven gained experience in several Chambers’ key practice areas including Family, Civil and Immigration Law.

Steven’s practice will cover all areas of Chambers’ core specialisms and all enquiries in relation to Steven’s work and availability to accept instructions should be directed to the Clerks.

Emma Weaver Returns from Maternity Leave

Halcyon Chambers are thrilled to announce Emma Weaver’s return to practice from maternity leave following the birth of her daughter.

Everyone at Halcyon Chambers welcomes Emma back to the Family Team where she will continue her practice.

If you wish to book Emma Weaver then please get in touch with the clerks on 0121 237 6035 or by email clerks@halcyonchambers.com

Case Note: HA (Iraq), RA (Iraq), AA (Nigeria) v SSDH [2022] UKSC 22

Article by Barbara Gonzalez-Jaspe

These appeals involve the deportation of foreign criminals and the tests used to determine if their expulsion from the UK would be unduly harsh on their families or if they satisfy the very compelling circumstances test to remain in the UK.

The two legal issues raised in these appeals are:

  1. The meaning of “unduly harsh” within the context of the unduly harsh test which is applied in cases where foreign criminals are considered for deportation; and
  2. The relevance and weight to be given to rehabilitation, and the correct approach to assessing the seriousness of the offending of a foreign criminal when considering the very compelling circumstances test.

Unduly Harsh

The SSHD argued that the unduly harsh test requires a comparison which is to be made with “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent” as per KO (Nigeria) v SSHD [2018] UKSC 53; [2018] 1 WLR 5273 at [23]. Undue harshness is a harshness which goes beyond that. It was their submission that this ‘notional comparator’ provides a baseline against which undue harshness should be evaluated.

The SSHD further submitted that in disapproving of the comparison being made between the harshness of a ‘qualifying child’ (Nationality, Immigration and Asylum Act 2002 – s.117C(5)) to that involved for ‘any child’, the Court of Appeal departed from the settled approach set in KO (Nigeria) and thus lowered the threshold of the test.

In rejecting these arguments the Supreme Court said that Lord Carnwath in (KO Nigeria) cannot have been contemplating a notional comparator test for the following reasons:

  1. Had the intention been to define a level of acceptable or justifiable harshness or to lay down a test to be applied in all cases by reference to the suggested notional comparator, Lord Carnwath would have given more detail.
  2. “Any child” is meant as an illustrative consideration, not a definition or test. It cannot be read literally otherwise it would encompass children for whom deportation of a parent would be of no real significance and therefore little or no harshness. If this were to be the test the threshold would be very low which is contrary to the judgement which states that much stronger emphasis needs to be given to the words “unduly harsh” [35].
  3. The suggestion that the appropriate notional comparator should not merely be a qualifying child but one of the similar characteristics is wrong because there are too many variables in the suggested characteristics for any comparison to be workable.
  4. A test involving a notional comparator child is potentially inconsistent with the duty to have regard for the best interests of the child in question as a primary consideration (Boarders, Citizenship and Immigration Act 2009, s.55). The discounting of what are said to be the ‘normal’ effects of deportation by reference to a ‘notional comparator child’ risks the courts and tribunals searching for features which are out of the supposed norm and ignoring the actual impact on a particular child.
  5. The notional comparator approach risks the courts and tribunals searching for features that make a case exceptional or rare which will create an exceptionality threshold and is likely to lead to perverse results.

The court clarified that the correct way to interpret and apply the unduly harsh test is by following the guidance in KO (Nigeria), namely the MK-Direction:

… ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”

However, the elevated standard is not to be as high as that set by the “very compelling circumstances” test (Nationality, Immigration and Aslyum Act 2002, s.117C(6)).

Very Compelling Circumstances

When considering whether there are very compelling circumstances which are over and above the two pre-existing exceptions (Nationality, Immigration and Asylum Act 2002, s.117C(4) and (5)) that permit a foreign criminal to avoid deportation the court looked to the relevant factors identified by the European Court of Human Rights (ECtHR) in Unuane v United Kingdom (2021) 72 ECHR 24 (which referred to their earlier decision in Boultif v Switzerland(2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14)  include:

  • Nature and seriousness of the offence committed by the applicant;
  • Length of the applicant’s stay in the country from which they’re to be deported;
  • Time elapsed since the offence was committed and the Applicant’s conduct during that period;
  • Applicant’s family situation, including length of the marriage
  • Whether the Applicant’s spouse was aware of the offence when they entered into a relationship;
  • Children in the marriage and their ages;
  • The seriousness of the difficulties which the spouse is likely to face if the Applicant is deported;
  • Best interests and well-being of the children, in particular, any difficulties the child would encounter in the country to which the Applicant is being deported too; and
  • The solidity of social, cultural and family ties within the host country and country of potential deportation.


The court agreed that a full proportionality assessment is to be done when assessing individual cases. They also agreed that whilst it is common that rehabilitation of offenders is a relevant factor, it often holds little weight. However, the Supreme Court specified that if there is evidence of positive rehabilitation which reduced the risk of further offending then some weight can be afforded to this. This is supported by the Strasburg jurisprudence set out above.

Seriousness of the Offence

Another question for the court is how the seriousness of an offence is to be assessed. The court recognised that a sentence often reflects various considerations alongside the seriousness of the offence. This includes credit for an early guilty plea, whether the Applicant is the primary or secondary in the commission of an offence and any other mitigating factors that are specific to the offence, including being of good character.

The court held that if the decision maker has sight of the sentencing remarks which explains what factors, unrelated to the seriousness of the offence, influenced the sentence then this too can be taken into account when assessing the seriousness of the offence. It also recognised that an early guilty plea may be relevant to the consideration of rehabilitation but does not impact seriousness of the offence.

The second issue raised is whether it is ever appropriate to place weight on the nature of the offending as well as the sentence imposed. The court held that although this is a relevant consideration, it must be done with caution so as to not double count.


The Supreme Court has reiterated the correct tests which are to be used when making determinations of deportation. It is evident that from the judgement that cases need to be looked at on an individual basis and having a baseline standard is not workable as there are so many moving parts. This judgement is another example of how a one size fits all approach cannot be taken to cases that involve the right to private and family life.

The Supreme Court further recognises that there are various factors that influence an offenders sentencing that rehabilitation is a relevant factor if there is positive evidence to support it. The ECtHR has provided a list of relevant factors that will assist the courts in better determining when the very compelling circumstances test has been met.

Children Giving Evidence in Care Proceedings: Time for Change

Article by Steven Evans

Halcyon Chambers’ Family Team recently represented a parent in care proceedings concerning allegations of abuse made by a child (15). Contrary to the child’s strong wishes, the Court determined that shewould not give oral evidence because it would not be in her ‘best interests’.

Eleven years on from Re W [2010] and the subsequent Working Party of the Family Justice Council guidelines, the Family Court remains unable to reconcile the ‘best interests’ principle and children’s participation in care proceedings. This is caused by regressive attitudes towards children giving evidence and the inadequate ‘special measures’ legislation available to the Family Court.

Part 3A of the Family Procedure Rules implemented guidance for the participation in proceedings and giving evidence by ‘vulnerable persons’. However, Part 3A only applies to children to the extent that they are witnesses and does not require the court to determine whether the participation of a child in proceedings is likely to be diminished by reason of vulnerability.

The court has the power to control evidence in family proceedings and to provide directions as to how evidence is to be presented to the court, although these provisions only apply to ‘special measures’ available at common law to children and vulnerable witnesses and do not extend to Rule 3A.8(1).

Therefore, ‘special measures’ for children derive from common law principles characterised by the Youth Justice and Criminal Evidence Act 1999 (“the YJCEA 1999”).

In addition, there are two conditions which must be satisfied before the court has power to order ‘special measures’ in family proceedings under Part 3A. Firstly, there must be an assessment of the witness and secondly, funding must be available to provide the ‘special measures’.

In criminal proceedings the Crown Prosecution Service can fund assessments and ‘special measures’, whereas Rule 3A.8(4) states “nothing in these rules gives the court power to direct that public funding must be available to provide a measure”. The lack of funding acts as an additional barrier to children giving evidence in care proceedings.

The Family Justice Council summarised the inadequate implementation of Part 3A in 2019 by stating “there is as yet only limited understanding as to how FPR Part 3A and PD 3AA are operating in practice. However, the Family Justice Council domestic abuse working group has been made aware… of the patchy and inconsistent implementation of these provisions”. The result if that special measures’ for children are rarely used in care proceedings.

Comprehensive legislation in criminal proceedings has allowed children and vulnerable witnesses to give their ‘best’ evidence and ensure that hearings are fair. Whilst the Family Courts have adopted these principles by way of common law, a YJCEA 1999 equivalent does not yet exist.

New and comprehensive ‘special measures’ legislation is required to allow children to properly participate in decisions which have the gravest consequences to their lives.

It must go further than Part 3A by ensuring the Court has the power to order public funding is available for both the assessment and provision of ‘special measures’ in all cases involving children giving evidence.

However, ‘special measures’ legislation will be redundant unless lawyers and other professionals depart from the presumption against children giving evidence on grounds of age, immaturity and emotional harm.

It has been a long time since Re W [2010], yet we are no closer to allowing children fair and proper opportunity to participate in proceedings.

A fairer private rented sector – the end to no-fault evictions?

Article by Jamie Hughes

A reform of the ‘no-fault’ eviction process has been mooted by the government for some considerable time. Landlords anxiously awaited news of what, if any, process would replace it if this key remedy is taken from them. Meanwhile, tenants awaited news of whether they would be provided greater security against landlords

The current process – The landlord’s backstop

s.21 of the Housing Act 1988 allowed landlords to seek possession of a property which was let on an assured shorthold tenancy on two months notice, either on a contractual break date or following the expiry of the fixed contractual term. Under this procedure, the landlord would not need to point to any particular ground for possession other than the fact the term has expired.

Landlords often viewed this as their backstop security measure for regaining their property when they could not make out any of the other statutory grounds. However, the government and housing charities have long sought greater security for those who rent on a private basis and adhere fully to their own obligations under the tenancy.

The suggested reforms

In the Fairer Private Rented Sector White Paper (16 June 2022) the Government set out a 12-point plan for reforming the private rental sector. Of these, two specifically affect the grounds for possession:

“3. We will deliver our manifesto commitment to abolish Section 21 ‘no fault’ evictions and deliver a simpler, more secure tenancy structure. A tenancy will only end if the tenant ends it or if the landlord has a valid ground for possession, empowering tenants to challenge poor practice and reducing costs associated with unexpected moves.

4. We will reform grounds for possession to make sure that landlords have effective means to gain possession of their properties when necessary. We will expedite landlords’ ability to evict those who disrupt neighbourhoods through antisocial behaviour and introduce new grounds for persistent arrears and sale of the property.”

As part of the abolition of s.21, the government intends to move all tenants who previously had Assured Tenancies or Assured Shorthold Tenancies onto periodic tenancies. It is suggested by the Government that this will “level the playing field between landlord and tenant”. Six months after giving notice, all new tenancies will be periodic and governed by the new rules and twelve months after the notice, all existing tenancies will be converted to periodic.

To balance the removal of section 21, the government has suggested it will strengthen the existing grounds for landlords to seek possession. This will include new grounds for landlords who wish to sell their property or utilise the property for themselves and their close family members. These two new grounds will be prohibited during the first six months of a tenancy, in the same way as s.21 operates.

A new mandatory ground will be created for repeated serious arrears. If a tenant has been in at least two months’ arrears three times within the previous three years, possession will be mandatory, regardless of the balance at the hearing. This will prevent the very common cycle landlord face of arrears increasing and then being cleared shortly before the hearing, often preventing possession if no other grounds can be made out. The notice period for existing mandatory rent arrears ground will also be extended to four weeks.

Landlords v Tenants – Who wins?

The exact structure/content of the intended legislation is currently unknown and will no doubt be scrutinised heavily by both sides of the private rent sector once it is published. It is hoped that the proposed changes will strike a fair balance between the competing interests of landlords and tenants. Whether this can ever be achieved in reality is yet to be seen.