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.

Rehabilitation

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.

Summary

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.

Rwanda Policy – Deterrent or Punishment?

Article by Tony Muman

On 13 April, the Secretary of State announced that the UK had entered into an agreement with the Republic of Rwanda with terms recorded in a Memorandum of Understanding.

The position of the UK government is that those who are seeking asylum in the UK having travelled through a safe third country arriving by dangerous and illegal means can have their claims ruled ‘inadmissible’ and removed to Rwanda, which is in the government’s view a ‘safe’ country, for their asylum claim to be considered, and where they will remain regardless of the outcome.

The proposals have caused outrage – not least because of the secretive nature and speed at which it has been implemented. The government have been scrambling for ideas to appear tough on asylum, and this policy is the latest in a long line of ideas designed, it is said, to deter those coming to seek refuge in the UK from dangerous and illegal travel. This policy follows on from a decade of hostile environment that the government has created for immigrants.

The criteria for those eligible for relocation have been kept a closely guarded secret, however, the Home Office’s Equality Impact Assessment analysed data from 2020 which stated that 74% of those arriving by such means were aged between 18-39, 87% were male and made of a specific group of nationalities.

Since the Brexit transition period ended (31 December 2020) there have been no bilateral agreements made between the UK and other EU member states. The result of which is that the UK is now unable to return asylum-seekers to other EU member states. The Rwandan removals policy is a knee jerk reaction to this problem.

Legal opposition to this policy was expected by the Home Office and as a result, they had attempted to take swift action by scheduling a charter flight to Rwanda on 14 June 2022. The flight was grounded after the European Court of Human Rights granted an injunction.

The cost of implementing this policy has been an initial £120 million as part of an “economic transformation and integration fund” but UK taxpayers will be paying for operational costs of each individual alongside this.

There is no clear evidence that this policy will deliver value for money, nor is there any evidence to support the idea that it will succeed in its deterrent effect. To the contrary, there is every indication that the policy unlawfully penalises asylum seekers based on their route of journey and mode of arrival in the UK.

The legality of the Rwanda policy will be fully argued in UK High Court next month. Today’s directions hearing will ensure the case is ready for then.

Halcyon Chambers’ Public Law specialists Ramby De Mello & Tony Muman are instructed in one of the eight claims selected by the Court as lead test cases.

Muhammad Ul-Haq: Judicial Secondment

Halcyon Chambers is delighted to announce that Muhammad Ul-Haq begins his secondment to the High Court of Justice in London as a Judicial Assistant assigned to the Queen’s Bench Division.

Everyone at Chambers wishes Muhammad the best and look forward to him returning to practice in August 2022.

Divorce, Dissolution and Separation Act 2020: The End of the Blame-Game

Article by Barbara Gonzalez-Jaspe

The amendments to the law on divorce have been long overdue and signifies the biggest change to divorce law in decades. The overriding objective is to allow parties to separate with dignity and without needing to place blame where it does not squarely fall on one side or either.

The Blame-Game

The previous law on divorce did little to help the stereotypical view most people have of a warring couple in court. To many it wasn’t the fuel added to the flame but the cause of the whole problem. Couples who had decided they no longer wanted to be married had the following options available to them:

One party had to accuse the other of desertion, adultery or unreasonable behavior. If none of the above applied, they had to spend two years apart if both parties agreed to the divorce, or 5 years apart if one party objected. 

This led many couples having to assign blame in order to divorce within a reasonable time. For those who couldn’t play the blame-game, they had to remain together for two years which prolonged disagreements over finances and children. Both situations often caused unnecessary animosity between those who had equally decided their marriage was over. The previous law also forced parties who wanted a divorce to remain in a marriage for up to five years if their ex refused to accept they wanted a divorce.

Divorce, Dissolution and Separation Act 2020

From the 6th April 2022 couples who wish to split amicably are able to do so and removes the ability to make allegations about the conduct of a spouse which is often deeply personal.

One or both parties can file for a divorce by making a statement their marriage is over. There is a minimum 20 week period between the initial commencement of proceedings and making an application for a conditional order (formerly Decree Nisi), a further 6 weeks later the divorce is then granted in a final order (formerly Decree Absolute). The courts will still be involved to resolve any contested issues with respect of finances, children, division of assets and maintenance but the personal reasons for the split remains between the couple.

This new law allows for those who wish to part ways to do so without becoming enemies for life when they simply just want to move on. It also allows for children to be protected from warring parents and gives dignity and autonomy to those who are leaving an unhappy, abusive or controlling relationship by preventing the other from opposing the application.

Ultimately this change in the law has been welcomed by family lawyers and those seeking to divorce quickly and/or on good terms. It is hoped this will go some way towards alleviating some of the unpleasantness of divorce and its positive impact to filter across other areas of family law.

TRA: Potential new powers against Teachers

Article by Naomh Gibson

The Teaching Regulation Agency (‘TRA’), is an executive agency of the Department for Education (‘DfE’), responsible for regulating the teaching profession in England. The TRA investigates cases of serious teacher misconduct and decides whether to refer a case to a professional conduct panel, who may make findings and, if appropriate, recommend to the Secretary of State to impose a prohibition order.

The DfE is considering whether to broaden the scope of the TRA’s powers. They are now in the second stage of its consultation on the proposed changes.

What are the proposed changes?

The TRA is proposing the following changes:-

  • The TRA may consider all referrals of serious misconduct committed by any individual who has at any time in the past been employed or engaged to undertake teaching work in a relevant setting
  • The TRA may regulate Further Education colleges, Providers of post-16 education as set out in the Apprenticeships, Skills, Children and Learning Act 2009 (as amended), and online schools
  • The Secretary of State may consider referrals of serious misconduct regardless of how the matter comes to their attention

How would this affect me as a Teacher?

If you are an individual who is not currently working as a teacher or is between jobs (e.g. those on a career break or teaching infrequently, or supply teachers between jobs), any alleged misconduct you engage in during this time can be referred to the TRA. There is no limit planned for the length of time that may have passed since someone last worked in schools.

There is an added difficulty by the fact there is currently no method that an ex-Teacher can ‘de register’. If someone has qualified as a Teacher, they are presumed able to return to the classroom at any time.

There is a concern that if not properly considered and implemented, those who have worked as a Teacher some time ago with no intention of returning to the classroom may be facing regulatory proceedings, with all the accompanying stress and cost.

The changes to include FE colleges and other higher education facilities is likely to be welcomed, unless you are an individual who works with adults in these facilities, not children. It remains to be seen whether the proposed changes will be drafted carefully enough to exclude people in higher education settings who don’t work with minors.

At present, the TRA has to wait for a complaint from an employer or member of the public before they can look into a referral. The DfE does not allow ‘self-referrals’ from their own agencies.

If this changes, you may also be facing a TRA referral where your conduct has been subject to scrutiny by DfE officials elsewhere other than the TRA, for example by the ESFA (the Education and Skills Funding Agency) which conducts academy audits, or the STA (the Standards and Testing Agency) which looks at examination administration.

This could result in an individual being targeted by multiple DfE agencies at one time, even where no complaint is made by your employer or pupil-parent.

What can I do about this?

If you would like to engage in the consultation, you can do so online: www.education.gov.uk/consultations

The results of the consultation and the Department’s response will be published on GOV.UK in Spring 2022.

If you are facing an investigation or a professional conduct panel and would like assistance, Naomh Gibson is available for instruction. Naomh has experience as a Presenting Officer for the TRA which gives her invaluable insight into defending Teachers. You can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com.

Halcyon Chambers Welcomes New Pupil

Halcyon Chambers is pleased to announce that Barbara Gonzalez-Jaspe has joined Chambers as a new Pupil commencing 4 April 2022.

Barbara is currently undertaking a mixed common law pupillage with a focus on family law under the supervision of Suzanne Hodgkiss.

This is in addition to Jamie Hughes and Steven Evans who have recently commenced their Second Six Pupillage on the 1 March 2022 and 28 March 2022 respectively.

Everyone at Halcyon Chambers wishes them all the best in the forthcoming months.

Withholding Religious Divorce Recognised as Abuse – The Domestic Abuse Act 2021

Article by Shabinah Ladha

In both Islam and Judaism in order to remarry a woman must obtain a religious decree of divorce; under Jewish law, the Get, and under Shari’a a Talaq, Khul or Mubaraat.  If the woman is not religiously divorced, she will remain married under religious law and in the eyes of her community. As a result any marriage under civil law is regarded as adulterous and future offspring will be considered illegitimate.

Capricious Muslim husbands might divorce their wives under English law but will not pronounce Talaq thus preventing their wives from remarrying which is often known as a ‘limping marriage’. In Judaism a recalcitrant husband may refuse to give his wife a Get preventing the Jewish marriage being dissolved resulting in what is known as ‘chained wife’. These husbands weaponise divorce to grant or withhold divorces in order to negotiate favourable financial settlements, or contact and custody issues relating to children of the family.

The Divorce (Religious Marriages) Act 2002, inserted a new section into the Matrimonial Causes Act, 1973, which came into force in 2003. This new section recognises ‘limping marriages’ within the Jewish community. Section 10A allows either party to the marriage to apply for the decree absolute to be made only after steps have been taken to deliver the Get. The purpose of this is to ensure that a person who obtains a divorce in the civil courts is also regarded as divorced by his or her religious community, and therefore free to remarry and therefore no longer ‘limping’ or ‘chained’.

Other religions may seek to be ‘prescribed’ within the legislation. To achieve such prescription the Lord Chancellor must issue an order after prior consultation with the lord Chief Justice, and such an order must be made by a statutory instrument. To date, however, Islamic divorce is not included.

The Domestic Abuse Act 2021 was given Royal Assent in April 2021. The draft statutory guidance on domestic abuse published in July 2021 recognises withholding a religious divorce as constituting a form of domestic abuse, namely “controlling or coercive behaviour”.

The Guidance under the heading Religious marriage and divorce sets out the following:

  1. A form of spiritual abuse may include the withholding of a religious divorce, as a threat to control and intimidate victims. In some cases, it will be accompanied by other manifestations of abuse within the marriage.
  2. In Judaism this concerns the Get, and instances whereby a recalcitrant husband may refuse to give his wife a Jewish bill of divorce (or a wife may unreasonably refuse to accept a Jewish bill of divorce). Unreasonably preventing a religious Jewish marriage being dissolved often includes the imposition of such conditions.
  3. The ability to refuse to give a Get provides abusive husbands with power and control and will be used often to exert leverage in relation to other aspects of the divorce. The refusal will have a significant impact on the wife’s wider living conditions: She will often be severely restricted in her social and personal life. It affects her ability to re-marry and directly affects the status of any children she may have in the future.
  4. In Islam this can involve the refusal of a Muslim husband to grant his wife a religious divorce, talaq, which is the annulment of a nikkah, as a way of prolonging the process of divorce. The threat of talaq being uttered and the arbitrary use of this by perpetrators may also often be cited by some victims.

It is hoped that the effect of these new provisions is that women who are trapped in a marriage as a result of their husbands refusing to grant them divorce are recognised as victims and the Act provides some steps towards redress and opens the door for further changes in legislation and understanding of ‘limping marriage’. In practice it remains to be seen how these provisions will be received and work in practice once the Act is fully in force.

Dear Sirs, Happy International Women’s Day

Article by Shabinah Ladha


Archaic

Every day I receive correspondence addressed to me as “Dear Sir/s”. This male address is an accepted standard which is still used by law firms, the court service and barristers’ chambers.

To me this greeting is a relic of a time when women, and those identifying as female, were a minority within the legal field and, at worst, not welcome within it. Women are no longer a marginal group in this profession thus it should follow that the practice of assuming male identity as a default is no longer appropriate.

What we should be doing is using a person’s preferred gender pronoun, or a gender-neutral alternative. In doing so we acknowledge a person’s identity, are respectful, inclusive and courteous.

Why Change?

We have to think about the language we use as it reveals the assumptions and decisions being made. “Dear Sirs” makes the assumption that the recipient is a male, and again, fails to give regard to the actual recipient. Using this address when you know the recipient, could be seen as a micro-aggression if you are on opposing sides, it can also signal regression and laziness to properly address the recipient.

The lady Judge who presided over my matter this morning told me that she is constantly referred to as ‘he’ when her Judgments are quoted. Surely, we are passed the belief that there is no place for female Judges and practitioners in our midst? If we have, then why are we failing to properly address women when it comes to such basic issues of correspondence?

Taking the time to amend standard letters and legal precedents in contracts, leases and court orders shows courtesy, gender equality and takes into account our duty not to discriminate.

The BSB Handbooks lists ‘You must not discriminate unlawfully against any person” as a core duty and also, tells us to treat each client with courtesy and consideration, which must also apply to colleagues, opposing lawyers and everyone in general.

Change Matters

The legal profession is well aware that language, communication and words matter. If we want an inclusive profession but continue to use language that is gendered we will continue to exclude a large part of the profession.

Changing language is often a precursor to larger, systemic changes and further steps to purging this profession of sexual harassment, gender bias and under representation of women at senior levels such as heads of chambers, benchers, within committees, law firm partners and within the judiciary.

It is time to ditch Debretts, break the bias and start using a person’s preferred gender pronoun, or a gender-neutral alternative. In doing so we acknowledge a person’s identity, are respectful, inclusive, courteous and not discriminatory.

So then what should we use instead, well, if in doubt, just ask!

Hair Discrimination Should Not Be Brushed Aside

Article by Shabinah Ladha

Wigs Getting Twisted

The last few weeks have seen Barristers getting their wigs in a twist and posing the question to “wig or not to wig?”. The arguments for and against keeping the wig are numerous and wide ranging. Recent Twitter feeds and newspapers articles throw up a number of emotive responses, some of which have pointed to hair discrimination.

On 9 February 2022 Michael Etienne Tweeted:

“Asked the Bar Council what could happen if, as a Black Barrister with an Afro, I declined to wear my wig. The answer included: ‘contempt of court’. ‘wasted costs’ and various potential breaches of Code of Conduct. ‘Unless the insistence was discriminatory’
#HairDiscrimination”

Twitter feeds rarely provide thorough context and reasoning and are often devoid of value to serious debates such as hair discrimination but often an open door to misinformation and vulgar exchanges.

Bar Council ‘Guidance’

The Bar Council calls itself the lead representative body for Barristers in England and Wales. Their work is devoted to ensuring the Bar’s voice is heard, efficiently and effectively, and with the interests of the Bar (and the public interest) as its focus. Well then, what do they say about wigs? They provide a guidance note on appropriate court dress, although, they are keen to point out that this is not “guidance” for the purpose of the BSB Handbook. In their document they provide a tick-box table which shows in which courts business attire is to be worn and when to wear court dress, namely, wig, gown, wing-collars and bands or collarettes. As a general rule, advocates are robed for the High Court and in the Crown Court unless the Judge otherwise orders. Robes are not generally worn in tribunals or magistrates courts. By convention cases which directly relate to the liberty of an individual require court dress

Religious Accommodation

The Bar Council quite properly intend their guidance to provide a note of what clothing is expected and acceptable, reflecting the seriousness of the function Counsel perform in Court, the role of Court dress as the uniform of the profession and the need for such uniform to be inclusive of different religious practice. Clothing worn as a requirement or emblem of faith is permitted to be worn in Court. The note provides some examples:

“7.1 Christianity: Jewellery bearing crosses or other symbols of religious belief is permitted (and this applies equally to other beliefs).

7.2 Judaism: Kippahs may be worn (and worn under wigs where Court Dress is required).

7.3 Islam: Headscarves may be worn but should be sober coloured. Headscarf-wearing Muslims need not wear wigs where Court Dress is required.

7.4. Sikhism: Turbans may be worn but should be sober coloured. Turban- wearing Sikhs need not wear wigs where Court Dress is required.”

There has long been an accommodation of sorts for religious dress. Sikh Barristers wearing a turban and Muslim Barristers wearing a hijab, for clearly apparent reasons are not required to wear a wig. Sir Mota Singh, the first ethnic minority judge in England forsook the wig for a turban when he was appointed in 1982. Despite some accommodation for some races and religions the Bar Council’s guidance is silent as to whether Barristers who have specific hairstyles such as afros, braids, twists, and locks should be exempt from wearing a wig. Should ‘these’ Barristers groom themselves to conform to a Eurocentric aesthetic in order to wear the wig? Regulating people based on the appearance of their hair is surely not discrimination?

Combing Through the Law

The Equality Act 2010 provides protected characteristic status to nine identity markers; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The features listed under race are currently: colour, nationality, and ethnic origins. Hair is not explicitly mentioned in the Act as an identity marker although recent caselaw acknowledges that hair discrimination is a form of discrimination.

(G v Head Teacher and Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) was a claim concerning the lawfulness of the uniform policy applied by the defendants which, because the claimant was unwilling to comply with one aspect of it, meant he was unable to take up his place at the school. G, of African-Caribbean ethnicity had not cut his hair since birth and kept it in cornrows. This is in accordance with his family tradition. Cornrows (sometimes called braids) were prohibited by the uniform policy of the school and so he was not permitted to attend school so long as he kept his cornrow style. It was held that there had been indirect discrimination. The requirement for a provision, criterion or practice which put a person at a “particular disadvantage” for the purposes of indirect discrimination under the Race Relations Act (now repealed) was discriminatory.

Within the judgement of this case, the Court considered that the claimant’s religious beliefs were a valid justification for having cornrows, making an exception to the policy. There was no mention of racialised hair discrimination, but simply the allowance of one’s religious belief. The High Court failed to comprehend the disproportional isolation of a black hairstyle, where an insinuation is made that cornrows are not acceptable, thus deemed unprofessional in schools. This omission creates confusion where professional environments often fail to recognise ‘hair’ to represent a distinctive feature of someone of black heritage.

Untangle the Law

Since the case of ‘G’ there have been a number of instances where hair policies enforced by schools and employers have led to racial discrimination; black children being sent home from school because of their afros (Ruby Williams) or ‘extreme ‘haircuts (Josiah Sharpe), black boys being told to cut off their dreadlocks (Chikayzea Flanders), black women being turned down for jobs because they wear their hair in braids or cornrows (Lara Odoffin), and black employees being told to chemically straighten their natural hair. I am cautiously confident that no Judge at the English Bar would impose a Barrister to wear a wig where their hairstyle does not allow for it. However, there must be clear and unambiguous guidance for the Bar, for schools and employers to prevent hair discrimination in policies and practices.

The Equality Act can address this issue by regarding ‘hair’ as a protected characteristic (both texture and style). This will increase the clarity of the law, as well as the UK’s understanding of systemic racial issues amongst our current systems. A similar approach has been taken by parts of the United States through the creation of the CROWN (Create a Respectful and Open World for Natural Hair) Act 2020. The Act prohibits discrimination based on hair texture and protective hairstyles in professional environments.

The Bar Council need not wait for UK Legislation to untangle its subjective understanding of black ‘hairitage’ and ought to comb through its own guidance in order to weave into it accommodation for diverse hair styles and textures and understanding of hair discrimination. We must understand that dress codes and indirect grooming policies that ban natural hair including afros, braids, twists, and locks compel individuals to mask their ethnicity and conform to European norms. It is not acceptable to brush hair discrimination aside.

 

Niqab, Burka and Giving Evidence in Court

Article by Shabinah Ladha

I often get asked by solicitors if their lay clients are permitted to wear a Niqab or Burka whilst giving evidence in Court.

A Niqab is a veil for the face that leaves the area around the eyes clear and worn with an accompanying head scarf. A Burka is usually a one piece veil that covers the face and body, often leaving a mesh screen to see through. A hijabrefers to a headscarf which covers the head and back and leaves the face clear. The Hijab does not cause any difficulty as the face can be seen.

The Equal Treatment Bench Book (ETBB) recognises that an issue may arise if the face cannot be seen as a result of wearing a Niqab or Burka and provides some guidance as to what can be done in a pragmatic way without Judges seeking to resolve any doctrinal conflict as to whether the face veil is mandatory in Islam.

In non-criminal cases a Judge is permitted to ask anyone giving evidence to take off her veil whilst the evidence is being given, BUT only if a fair trial requires it and the Judge reasonably believes it is necessary in the interests of justice. Judges must consider whether effective evidence can be given without removal.

The wearing or otherwise of the veil should be addressed at pre-trial stage and/or at the start of the hearing. A short adjournment and conference before the hearing can often allow the lay client time to reflect and consider their position and seek advice on this issue. Where removal is considered in the interests of justice, a Judge must consider arrangements such as limiting observers in the courtroom and the consideration of giving evidence behind a screen.

Tension arises where the court must balance the right to religion and right to a fair trial. The main objection to wearing a face veil whilst giving evidence is that the witness’s credibility cannot be properly assed without being able to see the witness’s face. The Court of Appeal in SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 [41] has provided guidance in relation to demeanour of witnesses and what, if any, weight to attach to the impression which may be formed. Leggatt LJ stated:

No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.

This guidance goes some way in assisting the Judiciary in reconciling any conflict as to evidence being given with the Niqab or Burka on. The most important part of a witness’s evidence is the content rather than the manner in which it is conveyed.

Post pandemic case law further assists. It has become the daily diet of practitioners to consider whether a remote hearing is suitable for their clients and the ensuing discussions have resulted in a number of cases that discuss the importance of evaluating content in witness evidence. The Court in A Local Authority v The Mother & Others [2020] EWHC 1233 (Fam) [42-43] discusses this:

…the credibility of a witness and the truthfulness of their account in the vast majority of cases is reliant principally upon the evaluation of the content of their evidence rather than the evaluation of their demeanour. That is not to say there may not be rare cases where demeanour may be of some importance, particularly where there is no or little contemporaneous or other evidence which bears upon their account… Thus, the evaluation of the credibility of a witness’ account will usually take place against a backdrop where consistency can be judged against earlier accounts, against contemporaneous evidence and against the evidence of others. It is also now well recognised that memory is a fallible instrument. Thus in judging demeanour how does one distinguish between the confident liar, the confident but genuinely mistaken witness and the confident truth teller or alternatively the hesitant and anxious truth teller, the hesitant and anxious but genuinely mistaken witness and the hesitant and anxious liar?

Emerging case law and circumstances suggest that the ETBB must be revised in light of our post pandemic court sphere. It is still a matter for the trial judge to consider whether evidence can be given whilst wearing a Niqab or Burkabut with the assistance of emerging case law on witness content and a host of civil trials which have been conducted on the telephone and other remote platforms it is hoped that we are all better equipped to deal with witnesses wearing a veil.

Lord Neuberger said some years ago when addressing this issue that judges require an “understanding of different cultural and social habits” and added that “it is necessary to have some understanding as to how people from different cultural, social, religious or other backgrounds think and behave and how they expect others to behave.” Thus, if the decision is taken to ask the witness to remove the veil, then it must be done in this vein.

I recently came across an article about Sir John Fielding, Chairman of the Middlesex Magistrates in 1754 and prolific social and penal reformer. His portrait currently hangs in Court 1 at the Supreme Court. He was known as the ‘blind beak of bow Street’ and could recognise 3000 criminals by the sound of their voices. Sir John was blind and some 268 years ago successfully conducted his duties without the need to view a witness’s face.

Love, ‘Honour’, Layla and Majnun

Article by Shabinah Ladha

On the eve of Valentines weekend I represented a couple seeking asylum on the basis that they form part of a particular social group ‘victims or potential victims of an honour crime’ within the meaning of the 1951 Refugee Convention. I will refer to my clients as ‘Layla’ and ‘Majnun’. One of them an Arab Iraqi and the other an Iraqi Kurd. Their love story is one that contains all the makings of an epic ‘would be tragedy’, young lovers, officious parents, different tribes, violence, their families denying their union as they planned their murder.

These stories are ones that practitioners have heard many times over but is still no less astonishing that Layla and Majnun’s circumstances did not temper their love and devotion to each other.

The Country Policy and Information Note Iraq: ‘Honour’ crimes defines this:

“‘Honour’ crimes may be committed or ordered by a husband, a father, a brother or another relative as a punishment to a family member because they have gone against social or cultural norms and are perceived to have damaged the family’s reputation by their actions. Such ‘offences’ include (but are not limited to) friendships or pre-marital relationships with a member of the opposite sex; refusing to marry a man chosen by the family; marriages that are against the family’s wishes; seeking a divorce; committing adultery; being a victim of rape or kidnapping; and defying gender roles…Punishments for perceived ‘honour’ offences range from physical abuse, forced marriage, forced suicide and murder.”

The Iraqi Penal Code permits ‘honour’ as a mitigation for crimes of violence committed against family members and allows for lenient punishments for ‘honour’ killings on the grounds of provocation or if the accused had ‘honourable motives’.

In the UK a crime committed by another member of the family in order to restore ‘honour’ upon the family will never be a defence to a criminal offence. The Court of Appeal in AM v Local Authority, The Children’s Guardian, B-M (Children) [2009] EWCA Civ 205; [2009] 2 FLR 20 [117-120] makes clear the position of ‘honour killings’ within this legal system:

“My second point is that the time has surely come to re-think the phrase “honour killings”. It is one thing to mock the concept of honour – as, for example, Shakespeare does through Falstaff in I Henry IV Act V, Scene i. It is quite another matter to distort the word “honour” to describe what is, in reality, sordid criminal behaviour. I put on one side the murder of a baby in this case, since brother 1’s motivation for the murder is not known. However, the remorseless pursuit of the baby’s mother who, the judge found, was a woman fleeing from domestic violence; the fact that the mother of the subject children in this case sprayed the night clothes of one of them with white spirit and set fire to her house in order to implicate the intervener; the fact that the mother will not identify her brothers in the conspiracy for fear of reprisals; the fact that the grandfather appears to believe that the death of the baby was an accident and the will of God – these things have nothing to do with any concept of honour known to English law. They are, I repeat, acts of simply sordid, criminal behaviour and a refusal to acknowledge them as such. We should, accordingly, identify them as criminal acts and as nothing else.

The Muslim scholar in his evidence did not suggest that such activities can be encompassed within Islam. The most he said was that they formed part of the older generation Pathan culture. The message from this case, which must be sent out loud and clear, is that this court applies a tolerant and human rights based rule of law: one which, under the Act of 1989 regards parents as equals and the welfare of the child as paramount

That is the law of England, and that is the law which applies in this case. Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts which will be treated as such. 

In this case, the family may wish to reflect on the fact that it has lost five of its children: one by death, one by the legitimate flight from gender-based violence inflicted on his mother, and three to the care system. None of this, in my judgment, has anything to do with any concept of “honour” and all of it is manifestly contrary to the best interests of children.

In light of this judgment and the catalogue of research and expertise in this area it is about time we stopped using the phrases ‘honour killing’ and ‘honour crimes’ this undermines the victims and gives kudos to the perpetrator of the crime with an excuse for their violence. These crimes should be referred to without any cultural connotations and should be known as the heinous crimes they are, murder, rape, abuse and enslavement. ‘

Practitioners must also understand that ‘honour’ based crimes should be seen as distinct from domestic abuse as not recognising the specific nuances will undoubtedly leave victims unsupported by practitioners who are ill equipped to understand the nuances between the two. The challenge then is to devise suitable policies and strategies of intervention to support ‘honour crime’ victims in cases that involve both domestic and non-domestic perpetrators.

For Layla and Majnun they succeeded in fleeing Iraq. Their journey to the UK is one that is now all too familiar, over land by foot, in crowded lorries, makeshift boats over inhospitable waters and then arriving in an ever-hostile environment. Their nightmare ended on the eve of valentine’s weekend over two years after they arrived in the UK. The Judge dispensed with the usual reserved determination and allowed their asylum appeal to succeed. Unlike their namesakes, Layla and Majnun remain united and continue to fulfil their love.

Compromise – When are PPI redress payments truly final?

Article by Jamie Hughes

Practitioners instructed in any Plevin claims are well versed in the common arguments that arise in almost every matter. One such argument that repeats is that of compromise. Following the decision in Plevin, many finance providers provided redress payments in accordance with the FCA guidance released at the time and DISP App 3.1 in the FCA Handbook. 

Often cited by financial institutions is the unreported case of Taylor -v- GE Money Consumer Lending Limited (20 July 2020, Leeds County Court) in which it was concluded that there was no obligation to make payment under the FCA guidance, that there was valid consideration given when such payments were made, that the Defendant could rely on the offer in full and final settlement, and that there was a dispute at the time capable of compromise. 

Surprisingly, however, parties often fail to consider the application of the leading authorities on compromise agreements generally to Plevin claims. A number of recent cases provide some helpful analysis. 

His Honour Judge Keyser QC recently provided a comprehensive overview of the relevant principles in Maranello Rosso Ltd v Lohomij BV & Ors [2021] EWHC 2452 (Ch). HHJ Keyser QC summarised the principles established in the leading authority of Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 as follows:

“1) The normal principles of construction apply to the interpretation of contractual releases.

2) No special principles of construction apply to the interpretation of contractual releases.

3) Lord Bingham’s “cautionary principle” is not a rule of law….

4) … As the “principle” is not one of law, I paraphrase it as follows: If the plain meaning of a release would appear to indicate that a party was agreeing to give up rights of action of which he was not aware and of which he could not reasonably have been aware, the court, before concluding that that is indeed what the release does mean, ought to pause, ask itself whether that is really what the release means, and carefully examine the context to see whether the words more appropriately bear some more restricted meaning…

5) As there are no special principles of construction applicable to releases, the private knowledge held by one party to a release but not by the other parties is irrelevant to the interpretation of the release.

6) It is arguable (the point was considered obiter in BCCI v Ali and was addressed only by Lord Nicholls and Lord Hoffmann) that there is an equitable “sharp practice” principle that will in suitable circumstances prevent a party from relying upon a release in general terms if he knew that the other party had a claim and knew that the other party was not aware that he had a claim.” [91]

The question as to “sharp practice” will certainly cause Plevin practitioners’ ears to prick up.  Most claims that are prima facie time barred include an assertion that the usual time limit on limitation does not apply as a result of ‘deliberate concealment’ on the part of financial institutions. However, In Tchenguiz v Grant Thornton UK LLP [2016] EWHC 3727 (Comm) at paras [54] – [58] the court confirmed that when negotiating a settlement of specific claims (rather than a general release), it is not considered sharp practice to withhold the existence of a claim not known to the other party.  Arguably, therefore, the compromise argument may prevail notwithstanding the strength of any limitation argument that a Claimant may run.

The ambit of claims that are capable of being compromised is similarly wide. Provided that the language used is clear, “…it is possible for parties in English law to enter into a contract to release claims which they do not know that they have, or which have not yet been recognised by English law. The only question is whether, as a matter of construction, that is what they intended to do” (Bank of Scotland Plc v Hoskins [2021] EWHC 3038 (Ch) at [54]). 

Claimants in these matters will often argue that, regardless of the wording used, redress payments are accepted in part payment of any sums they are due. In doing so, they face a potential uphill battle. As per Global Display Solutions Limited v NCR Financial Solutions Group Limited [2021] EWHC 1119 (Comm), the burden lies with the party arguing against the compromise agreement to show that it does not reflect what the parties agreed. 

Where the wording of the offer is clear and there is no evidence of contemporaneous equivocation at the time of acceptance, claimants may struggle to meet this burden. This hurdle is even higher for Claimants who have received a redress payment by cheque which has then been cashed. As per Joinery Plus Ltd (In Administration) v Laing Ltd [2003] EWHC 3513 (TCC) and Stour Valley Builders v Anor (21 December 1992), the cashing of a cheque is always strong evidence of acceptance, especially if not accompanied by immediate rejection of the offer. 

In light of the above principles, an argument on compromise will be much stronger if supported by a clearly worded offer letter which outlines what claims are being settled. In the event that the original complaint letter explicitly references a Plevin claim, it is arguable that the logical conclusion from the chain of correspondence is that any claim between the parties arising from the decision in Plevin has been settled in full. 

Much will depend on the exact wording of each compromise agreement, but these recent authorities serve as a helpful reminder that the general principles on compromise are sharply relevant and readily applicable to PPI claims. An analysis of these principles should form part of any practitioners’ arsenal when seeking to argue whether a claim has been settled in full by the acceptance of a redress payment.

Highway code changes and RTA liability

Article by Naomh Gibson

From Saturday 29 January 2022, the Highway Code is changing. All road users must be aware of these changes and abide by them moving forward.

For the uninitiated, the Highway Code is a set of rules, guidance and some mandatory rules for road users in the UK.

While its contents aren’t ‘law’, if you are proven to have broken that Code then this can be used against you in road traffic accident cases, or as Section 38(7) of the Road Traffic Act 1988 puts it [emphasis added]:-

“A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the Public Passenger Vehicles Act 1981 or sections 18 to 23 of the Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.”

So to be better prepared to consider liability in road traffic accident cases, we all need to be familiar with these updates.

The biggest (and most controversial change) to the Highway Code is the creation of a ‘Hierarchy of Road Users’. 

The idea is the road users who pose more of a threat than others must do more to reduce the danger or threat they pose, e.g. HGV drivers will need to be more considerate of cars and smaller vehicles => Car drivers will need to be more considerate of cyclists => cyclists will need to be more considerate of pedestrians.

Some practical examples of how this looks:-

  • Drivers should not cut across cyclists going ahead when turning into or out of a junction or changing direction or lane
  • Drivers at a junction should give way to pedestrians crossing or waiting to cross a road that they’re turning into (this means drivers must be more aware of the behaviour of pedestrians on footpaths)
  • Horse riders should also give way to pedestrians on a zebra crossing
  • Drivers should also not turn at a junction if doing so would cause a cyclist to swerve or stop
  • Cyclists should give way to pedestrians that are using shared-use cycle tracks
  • Cyclists must ride in the centre of the lane to make themselves more visible (note: NOT the middle of the road)
  • Cyclists are not obliged to use cycle paths
  • Drivers must leave at least 1.5 metres when overtaking cyclists at speeds of up to 30mph

While no doubt there were only good intentions when formulating the updated Highway Code, there may be some unintended negative consequences. For example, now that a car must give way to a pedestrian at a junction, this means a car approaching a 90 degree turn left on to a side road from a main road must considerably slow approaching this turn and taking the corner, or perhaps even stop. This will have the effect of a car on the main road slowing or stopping abruptly, which may see an increase in ‘rear end’ shunt’ type RTA cases.

It isn’t all bad news for drivers, however. Rule 1 (Pavements) for pedestrians now requires pedestrians to ‘always remain aware of your environment and avoid unnecessary distractions.’ This may prove useful to drivers who find themselves confronted with a pedestrian who has effectively stepped out in front of their car in a short distance or while pre-occupied with a mobile phone.

Whatever your views on the new Highway Code, it is sure to provide interesting challenges in road traffic cases where liability is disputed. If you or anyone you know is facing such a claim, we can help. Halcyon Chambers has a dedicated Credit Hire & Personal Injury team and Motoring Offences team who provide specialist advice and representation in all aspects of road traffic matters. Please contact our clerks on 0121 237 6035 or clerks@halcyonchambers.com for further information.

Unfair Relationships and the Burden of Proof

Article by Katie Wilkinson

Debtors under regulated credit agreements are able to bring a claim of unfair relationship pursuant to sections 140A to 140C of the Consumer Credit Act 1974 (CCA).  Section 140B(9) provides for a reverse burden of proof in such claims.

Section 140B(9) of the CCA provides that where “the debtor or a surety alleges that the relationship between the debtor and creditor is unfair to the debtor, then it is for the creditor to prove to the contrary”.  Its effect is to reverse the usual rule that “he who asserts must prove”.

The concept of reversing the burden of proof is not new to the CCA; the unfair relationship provisions replaced claims for “extortionate credit bargain”.  The test in those claims under section 171(7) provided that if “the debtor or any surety alleges that the credit bargain is extortionate it is for the creditor to prove the contrary”.

The question that arises from the language of section 140B(9) is whether both the creditor and debtor bear both a legal and factual burden, or whether a debtor must first establish their factual case before the creditor is tasked with a legal burden of establishing there is no consequent unfairness?

Arguably, if a creditor has to discharge both the factual and legal burden, it increases the volume and complexity of disclosure and evidence in the litigation process and may encourage spurious claims brought with the intention of making the litigation process costly and onerous on the creditor.

Upon the introduction of the unfair Relationship provisions, it was broadly assumed by most practitioners that the burden of disproving unfairness only switched to the creditor once the debtor had established their factual case. However, in Bevin v Datum Finance Ltd [2011] EWHC 3542 (Ch) it was stated:

“[55]… it is not, in my judgment, incumbent on Mr. Bevin to show a prima facie case as to unfairness or any case as to unfairness. As the section says, all he has to do is to make an allegation of unfairness. If he makes that allegation, the legal burden is on the creditor to prove that the arrangement was not unfair. The creditor in this case, Datum, has not adduced any evidence on unfairness whatsoever.

[56] I do not, therefore, accept that Mr. Bevin has a burden at this stage, in effect, to reverse that burden by putting a showing on first…”

In the years that followed, the general view of the Courts was that a debtor need only make a bare assertion of unfair relationship, leaving the burden in law and fact resting at the feet of the creditor.  More recently, however, in Promontoria (Henrico) Ltd v Samra [2019] EWHC 2327 (Ch), I was said:

“[26]… the onus is on the [creditor] to show, to the normal civil standard, that the relationship is not unfair because of any of the reasons set out in s 140A(1)(a)-(c). Whether it is so unfair is a matter for the court’s overall judgment having regard to all the relevant circumstances and matters, including matters relating (ie personal) to the creditor and debtor. This onus on the [creditor] does not however mean, in my judgment… that where [the debtor] makes allegations of fact on which he relies he does not have the burden of proving them to the normal civil standard. The onus placed on the creditor is as to the relationship between it and the debtor, and does not have the effect that factual allegations made by [the debtor] must be accepted unless they can be positively disproved by contrary evidence.”

Arguably, the decision in Samra conflicts with Bevin and the County Court will have to decide the approach to take when dealing with unfair relationship claims. 

Tomlin Orders and the CCA 1974… don’t get caught out!

Article by: Katie Wilkinson

The Court of Appeal’s decision in CFL Finance Ltd v Gertner [2021] EWCA Civ 228, handed down in February 2021 decided the issue of whether Tomlin Orders are theoretically capable of extending ‘credit’ within the meaning of the Consumer Credit Act 1974, so that the settlement agreement is caught by the legislation.  Confirming the decision of Marcus Smith J, the Court of Appeal agreed that Tomlin Orders were theoretically capable of extending “credit”.

The Facts

The Defendant had guaranteed a loan provided by the Claimant to a company named Laser Trust Ltd (‘Laser Trust’).  Laser trust defaulted on the loan and the Claimant brought a claim against the Defendant on the basis of the terms of guarantee.  The claim was defended on various bases, but ultimately settled by way of Tomlin Order.

The Tomlin Order provided for the outstanding debt due under the guarantee to be repaid by by way of instalments, with all capital and interest becoming payable on default.  The Defendant repaid £1.5 million (out of an agreed £1.7 million) pursuant to the terms of the Tomlin Order, but then defaulted.  As a result, the entirety of the remaining capital and interest became due.

The Claimant issued a bankruptcy petition against the Defendant and at a subsequent hearing of the petition he argued that the Tomlin Order was unenforceable as a regulated credit agreement pursuant to the provisions of the CCA.  The argument failed and a bankruptcy order was made.

On appeal ([2020] EWHC 1241 (Ch)), Marcus Smith J set aside the bankruptcy order on the ground that the proceedings should have been stayed to allow Mr Gertner’s other creditors to consider a voluntary arrangement.  In relation to the CCA point it was held that a Tomlin Order was theoretically an agreement capable of falling within the scope of the CCA, but that the Defendant’s agreement did not.

An appeal brought by CFL was against Marcus Smith J’s decision to set aside the bankruptcy order.  The Defendant cross-appealed on the CCA point.  CFL’s primary appeal was subsequently dismissed upon its failure to provide security for costs.  The only effective appeal was therefore the CCA point brought by the Defendant.

The Court of Appeal was faced with two questions: 

1.     DOES AN AGREEMENT WITHIN A TOMLIN ORDER CONSTITUTE AN ‘AGREEMENT’ UNDER THE CCA?

The Court of Appeal decided that an agreement within a Tomlin Order could constitute a regulated credit agreement under the CCA.

2.     DID THE SETTLEMENT AGREEMENT PROVIDE THE DEFENDANT WITH ‘CREDIT’?

The Court of Appeal set out that:

  • Where a creditor allowed a debtor more time to pay, for no consideration, the CCA would not apply;
  • An agreement which provided for the payment of additional interest, costs or the debtor giving up their defence would constitute consideration provided that the debtor genuinely believed that the defence had at least a fair chance of success;
  • If a debtor genuinely disputed a claim on substantial grounds the CCA would not apply as the creditor would not be “deferring a debt”, but instead would be entering into a compromise with the debtor in relation to a claim which may or may not have succeeded; 
  • If a debtor does not dispute that a debt is owed, and the two parties enter into an agreement to defer payment of the debt, possibly by way of instalment payments, then if consideration has been given by the debtor, this will amount to the provision of ‘credit’ and would be a ‘consumer credit agreement’ under the CCA.

There has to exist a ‘debt’ in order for credit to be given.  However, in circumstances where a debtor disputes that a debt is payable, but the grounds of dispute are clearly weak in law or in fact, creditors must take extra care to determine whether they are ‘deferring a debt’ by way of the Tomlin Order.  If the Tomlin Order is found to be caught by the CCA and associated regulations, the agreement will be unenforceable as the creditor will not have (or is unlikely to have) the appropriate regulatory authorisations. 

Edward Pearce Joins Chambers

We are delighted to announce that Edward Pearce joins Chambers from Tuesday 4th May as part of our Family Team.

Edward is very well known across the Midland Circuit and specialises in Family Law with particular interests in Public Law and Private Law proceedings.

Suzanne Hodgkiss, Head of the Family Team, welcomes Edward and said “I am delighted that an advocate of Edward’s quality has chosen to join Halcyon Chambers Family Team and he will be an excellent addition to our team”

If you wish to instruct Edward, please contact our Clerking team.