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: 


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


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. 

Katie Wilkinson Appointed Deputy District Judge

Katie Wilkinson

Halcyon Chambers are delighted to announce that Katie Wilkinson has been appointed a Deputy District Judge by the Lord Chief Justice, and will sit on the Midland Circuit.

Katie was called to the Bar in 2003 (Lincoln’s Inn) and will continue to practice from Halcyon Chambers in civil, chancery and commercial law.

We would like to wish her every success in her new role.

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.

Jonathan Bott successfully opposes Hague Convention application and secures ‘no contact’ order, and termination of Parental Responsibility

Jonathan Bott has represented the mother in an application made by the father, an Australian national, for an order under article 21 of the Hague Convention on the Protection of Children 1996, and furthermore a s8 order for contact under the Children Act 1989.

This is Jonathan’s second successful opposition of an application by an Australian national against a UK based mother in the last 6 months.

In this matter, initially heard in the High Court and then in the Manchester Family Court, Jonathan argued on behalf of his client that not only should there be a ‘no contact order’ under s8 of the Children Act, but there should be a s91(14) order prohibiting the father from making further application during the child’s minority and moreover that the father’s Parental Responsibility should be terminated pursuant to s4(2A) of the Children Act.

Termination of Parental Responsibility is a draconian measure, only available where fathers have not been married to the mother and is considered in a number of cases, most recently in the case of B and C (Change of Names- Parental Responsibility- Evidence) [2017] EWHC 3250 (Fam).

Following legal argument, the court agreed to dismiss the Hague Convention application, made a no contact order and a s91 (14) order and in addition the father’s parental responsibility was terminated. Jonathan also was able to secure a non-molestation order against the father, applied in the face of the court.

Careless Driving: Explained

Article by Naomh Gibson

We are now well into winter. Along with festive cheer, the change in season also brings dark, damp, and icy conditions which make driving generally more difficult. Add in busier roads as businesses and families get ready for Christmas, you may find yourself involved in a road traffic collision and facing a charge of careless driving.

Careless driving is when the standard of a person’s driving falls below what would be expected of a competent and careful driver (see s.3ZA(2) of the Road Traffic Act 1988). Some common examples are:-

• Driving too close to another vehicle

• Undertaking

• Driving through a red light, either by mistake or on purpose

• ‘Cutting up’ another driver

• Flashing lights to force other drivers to give way

• Sudden breaking

• Tiredness or driving whilst unwell

• Anything that would make your old driving instructor cross

In deciding whether the standard has fallen low enough to constitute careless driving, the Court will consider what a reasonable person could be expected to be aware of, and also what was within your own knowledge. For instance, if your car had a serious defect which wasn’t immediately obvious when looking at it, but you knew the car had been making odd noises, or you knew that you missed your MOT check a few weeks ago, you will very likely be considered to have driven carelessly if the defect causes an accident.

If you have inconvenienced people, it will be considered that you were driving without reasonable consideration of other people. The Golden Rule is a good guideline: Don’t drive like someone you wouldn’t want to be driving near.

Dangerous driving is a similar but much more serious offence. This will only apply where someone drives in a manner which falls far below what would be expected of a competent and careful driver and it would be clear to any competent and careful driver that driving in that way is dangerous. The police or the Crown Prosecution Service (CPS) will decide whether you should be charged with careless driving or dangerous driving.

If it elevates to a prosecution, the CPS has to prove beyond reasonable doubt that you as a motorist are at fault, i.e. had departed from the standard of a competent and careful driver. For careless driving alone (rather than causing death by dangerous driving), the best-case scenario sanction is a Band A fine, which is between 25-75% of your weekly income and 3-4 points. The worst-case scenario could include an unlimited fine and/or disqualification. The exact sentence will depend on your blameworthiness and how much harm you caused by your actions. Causing injury to others or damage to any property will weigh against you.

If you or anyone you know is facing a careless driving charge, we can help. Halcyon Chambers has a dedicated Motoring Offences team who provide specialist advice and representation in all aspects of road traffic and motoring offences. Please contact our clerks on 0121 237 6035 or clerks@halcyonchambers.com for further information.

Tony Muman in Chambers and Partners 2021


We are delighted to announce that Tony Muman has been ranked in the Chambers and Partners bar guide 2021 edition for Administrative & Public Law – Midlands (Bar) – Band 1 and Immigration – Midlands (Bar) – Band 2.

Administrative & Public Law – Midlands (Bar) 

Possesses deep expertise in public law matters involving local authorities or central government. He tends to represent claimants, and is particularly experienced in immigration and asylum issues.

Strengths: “He has considerable negotiating skills and is able to deploy complex arguments in simple language and get to the issues right away.”

Immigration – Midlands (Bar)

A well-regarded junior who is noted for his counsel on immigration law, asylum, EU and nationality law. He is regularly involved in significant cases before the Supreme Court. He often handles cases concerning minimum income or English language requirements.

Strengths: “He is creative when it comes to points of law and he has a good relationship with his clients.”

Credit Hire – Update Your Precedents

Article by Rose Oliver

Summary: Comment on the 114th amendments to the Civil Procedure Rules, in force from 6th April 2020

In the Government’s 2017 consultation on credit hire claims, the Civil Procedure Rule Committee opened up the floor to all practitioners in the area. The result was the amended Part 16 of the Civil Procedure Rules, which came into force on 6th April 2020. There are now further mandatory requirements for all credit hire claims proceeding in the County Court, and further reaching amendments to the Rules as a whole.

Statements of Case

Practice Direction 16, paragraphs 6.3 and 6.4 now state:

6.3 Where the claim includes the cost of hire of a replacement motor vehicle following a road traffic accident, the claimant must state in the particulars of claim;

(1) The need for the replacement vehicle at the relevant time;

(2) The period of hire claimed (providing the start and end of the period);

(3) The rate of hire claimed;

(4) The reasonableness of the period and rate of hire; and

(5) Impecuniosity (if the claim relates to credit hire).

6.4 In paragraph 6.3—

(1) “Relevant time” means at the start of the hire and throughout the period of hire;

(2) The obligation to state the matters there set out includes an obligation to state relevant facts.

A well pleaded statement of case will set out the above as a matter of course. Attention is drawn to paragraph 6.4(2); it is insufficient to state, for example, that the Claimant needed a vehicle for the period of hire claimed. The burden of proof dictates, and this practice direction underlines, that the Claimant must set out the facts of their case which lead to the conclusion that the Claimant did in fact need that vehicle over the entire period of hire.

Witness Evidence

The particulars of claim are not a substitute for a thorough witness statement putting those facts into evidence. Care should be taken that thorough instructions are taken from Claimants, as was seen in Irving v Morgan Sindall [2018] EWHC 1147 (QB), wherein the Claimant’s oral evidence differed on the crucial point. Despite Miss Irving’s sworn witness statement that she was obliged to pay the credit hire charges, she gave oral evidence that she was not personally liable.

Amendments to Practice Direction 32 on Evidence now impose further standard requirements for witness evidence. Witness statements must also now include the method by which they were taken, and must be in the witness’ own words. Practice Direction 23 now requires that the witness statement must be in the witness’ “own language”, which presumably means their first language, and must contain the date of translation of any translated copies.

Statements of Truth

From 24th February 2020, claims presented through the online Money Claims System required the inclusion of a new form of statement of truth. From 6th April 2020, amendments to Parts 22 and 33 of the Civil Procedure Rules now require all statements of case and witness statements to include the new form:-

‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

Standard Directions

The consultation proposals also included a requirement for standard directions in credit hire claims on all tracks. Concerns had been raised that small claims track directions in particular were not conducive to settlement, with disclosure due simultaneously only 14 days in advance of the final hearing.

Whilst the proposed standard directions did not make the final cut of recommendations, they remain a good point of reference and a useful indicator of judicial attitudes to evidence in these types of claims. The Rules Committee proposed specialist directions in respect of evidence of impecuniosity, need and the basic hire rate, in the form set out below:

“a) The Claimant will provide a witness statement addressing, and if relied upon, evidence in support of:

i) need to hire a replacement vehicle; and

ii) impecuniosity no later than 4pm on …………….[14 days from date of order].

(b) If impecuniosity is alleged by the claimant and not admitted by the Defendant, the Claimant’s disclosure will include:

i) evidence of all income from all sources for a period of 3months prior to the commencement of the hire to the earlier of 3 months after the cessation of hire or the repair/replacement of the Claimant’s vehicle; and

ii) copy statements of all bank, credit card and savings accounts for a period of 3 months prior to hire to the earlier of 3 months after the cessation of hire or the repair/replacement of the Claimant’s vehicle; and

iii) evidence of any loan or overdraft or other credit facilities available to the Claimant during the period of 3months prior to hire to the earlier of 3 months after the cessation of hire or the repair/replacement of the Claimant’s vehicle.

c) Failure to comply with the directions above will result in the Claimant being debarred from asserting impecuniosity at the final hearing save with permission of the Trial Judge”

d) The parties are to liaise and use reasonable endeavours to agree the basic hire rate no later than 4pm on [28 days from date of order].

e) If the parties fail to agree rates subject to liability and/or other issues pursuant to paragraph (d)above, each party may instruct a single witness to provide evidence of basic hire rates available within the Claimant’s geographical location, from a mainstream (or, if none is available, a local reputable) supplier. The Defendant’s evidence to be served by 4pm on [14 days after paragraph (d)above]and the Claimant’s evidence in reply if so advised to be served by 4pm on [28 days after paragraph (d)above].

– Draft Model Order for Directions in Credit Hire Claims, Consultation Exercise June 2017

Halcyon Chambers Welcomes Rose Oliver

We are delighted to announce that Rose Oliver has joined Chambers.

Rose has been practicing as a Solicitor for 3 years and a Solicitor Advocate for 2 years specialising in General Civil prior to transferring to the Bar.

Please contact the Clerks on 0121 237 6035 or by email clerks@halcyonchambers.com

Success for Halcyon Chambers Pupils


Chambers wishes to congratulate Muhammad Ul-Haq on successful completion of the Second Six of his pupillage. Muhammed undertakes work in all practice areas and all enquiries should be addressed to clerks@halcyonchambers.com


Chambers also wishes to congratulate Naomh Gibson on successful completion of her First Six. Naomh is now able to take instructions in all areas of practice and all enquiries should be addressed to clerks@halcyonchambers.com

Card transaction fees: no small change

Article by Naomh Gibson

Business owners and merchants, whether of small, medium or large entities, will be aware of multilateral interchange fees (“MIF”). For the uninitiated, this is when the payment card industry requires a fee for the acceptance of card-based transactions. As per 2015 EU regulations, this could be as much as 0.2% of the transaction value for consumer debit card payments, including prepaid payment cards, or 0.3% of the transaction value for consumer credit card payments (not including American Express). 

When a cardholder pays in a store by card, their bank deducts the transaction value from their account and transfers it to the merchant’s bank minus the MIF. The merchant’s bank then transfers to the merchant the value of the transaction minus a merchant service charge (“MSC”) negotiated between the merchant and its bank. Merchants’ banks pass on all of the MIF to merchants through the MSC, with negotiation between merchants and their banks in respect of the MSC being limited to the amount charged by the bank in excess of the MIF. Merchants are therefore unable to negotiate with the banks on the level of the MIF, which typically accounts for some 90% of the MSC.

Until recently, it looked as though the only way to truly avoid MIFs was to operate a cash-only business, which is undesirable for many in our increasingly contactless world. However, on 17 June 2020, the Supreme Court unanimously upheld a ruling that MIFs charged by Visa and Mastercard unlawfully restricted competition. 

In Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC and others [2020] UKSC 24 (available here), it was confirmed that as per Article 101(1) TFEU, Visa and Mastercard had MIF agreements which adversely affect trade between member states, and which had the effect of restricting competition. The card companies’ main defence, namely that they had an exemption under Article 101(3) TFEU as their restrictive agreements still generated objective economic benefits that outweighed the negative effects of the restriction of competition, was roundly rejected. 

Confirming the previous Court of Appeal decision, it was held that the card companies failed to satisfy the Court to the necessary standard that consumers or merchants were receiving a fair share of the benefits generated by the MIFs. The judgment also helpfully set out requirements for any possible exemption. As at para. 116:

‘…Cogent empirical evidence is necessary in order to carry out the required evaluation of the claimed efficiencies and benefits. To the extent that objective efficiencies caused by a restriction cannot be established empirically, they cannot be balanced with the restrictive effects. As a result, although the standard of proof is a matter of domestic law, the nature of the evidence which will satisfy that standard must take account of the substantive requirements of article 101(3).’

As such, Visa and Mastercard were not able to argue simply that an issuing bank which receives a payment on each card transaction undertaken by its customers will probably invest more to encourage its customers to engage in a greater number of such card transactions than it would do if it did not receive any such payments.

Additionally, the judgment sets out the legal test for establishing whether an unlawful overcharge is passed on down a distribution chain, which may give rise to further claims. In this case, one of the claims raised by multiple retailers was that in so far as the unlawful overcharges have been passed on in their selling prices to their customers, they have suffered a loss of profit on the sales of the goods concerned through a reduced volume of sales. The Supreme Court agreed that the claimants were entitled to plead as the prima facie measure of their loss the pecuniary loss measured by the overcharge in the MSC. The claimants did not have to plead and prove that the breach of contract adversely affected their overall profitability.

As per paras. 182-189 of the judgment, there can be no presumption that unlawful charges have been passed on. Whether there has been a pass-on is a question of fact to be established on evidence adduced before the national court, based on whether an overcharge resulting from a breach of competition law has caused the claimant to suffer loss, or whether all or part of the overcharge has been passed on by the claimant to its customers or otherwise mitigated. However, where there was evidence that the claimants mitigated the overcharge by methods such as reducing its costs by negotiation with its many suppliers, and/or passing on the costs by increasing the prices which it charges its customers, the compensatory principle mandates the court to take account of their effect when assessing loss.

This is a landmark decision which provides guidance for hundreds of other business claimants also concerned about MIFs and competition restriction. If you believe your business may be affected by this decision or would like advice on managing risk during the COVID-19 pandemic, Halcyon Chambers has a dedicated Commercial and Chancery team which continues to take instructions, including for remote hearings. Please contact our clerks on 0121 237 6035 or clerks@halcyonchambers.com for further information. Naomh is a first six pupil accepting instructions from July 2020 onwards.

Can I appeal a Judge’s decision for their behaviour?

Article by Naomh Gibson

There are a number of reasons why individuals may choose to represent themselves as a ‘litigant in person’. The most common motivation is financial, as fewer cases now qualify for public funding than in days gone by.

Despite their increased numbers, some litigants in person are reporting discriminatory and unfavourable treatment by the judges hearing their case. However, as seen in the recent decision in the libel case of Serafin v Malkiewicz & Ors [2020] UKSC 23, if it is severe enough, judicial bullying may be grounds for a trial to be declared unfair, and the decision appealed to be made again fresh with a different judge.

In this case, the claimant sued the defendants for libel in respect of an article which they published about him in a newspaper addressing issues of interest to the Polish community in the UK, in which he was accused of abuse of position and fraud. The Claimant chose to represent himself despite English not being his first language. During the 5 day trial, there were up to 25 identified instances when the High Court judge acted inappropriately.

After considering the transcripts, the Supreme Court held that the “nature, tenor and frequency of the judge’s interventions were such as to render [the trial] unfair”. The Supreme Court commented that while legal professionals will generally be equipped by training and experience to withstand a degree of judicial pressure, judges must not forget that the litigant in person is not likely to have the same level of training and experience, and so judges must temper their conduct accordingly.

The Supreme Court provided a Schedule of these instances, which were held to be examples of inappropriate conduct by Mr Justice Hays. The following themes emerged:-

  • Cutting off a witness when they giving evidence too quickly or without allowing them to explain
  • Using aggressive or sarcastic language 
  • Expressing frustration or irritation with a witness or party
  • Applying pressure: “This does not look great, frankly, because either you were lying to the investors or you are lying to me. If you are lying to me, the consequences can be really awful, because you understand, I do not like being lied to. Which is it? Who were you lying to? Were you telling the truth to the investors and therefore lying to me, or were you lying to the investors and telling the truth to me?”
  • An indication that he had already decided the case outcome before evidence was finished: “…It is not very ethical behaviour, this, but we will see where the weight of the evidence is leading. Because if I conclude that you are acting unethically as a businessman, I am not sure [that] the precise terms of the defamations are going to matter to you much. Do you understand that? You will lose, but there is a lot more evidence yet.”
  • Suggesting a witness or party has done something illegal or immoral when this is not relevant to the case

This is not to say, of course, that a single instance of any one of the above bullet points will automatically render a trial unfair, but this may be the case where there is a wider pattern of bullying behaviour and repeated examples of inappropriate conduct by the judge.

What many litigants in person do not realise is that it is possible to go directly to a barrister without having to involve anyone else (e.g. a solicitor) if they so wish. Halcyon Chambers have a number of our barristers approved by the Bar Council to take instructions directly from members of the public. Pleas contact our clerks on 0121 237 6035 or clerks@halcyonchambers.com for further information.

Naomh is a first six pupil accepting instructions from July 2020 onwards.

[UPDATE] Can I refuse to teach or work in a school?

Article by Naomh Gibson

The role of a teacher is something which is often the subject of debate in education. Certainly, key policy developments in the past decade have seen the duties and responsibilities of teaching staff diversified and broadened.

For example, from 2015 onwards, some teachers have felt that the government’s Prevent strategy, which obliges teachers to refer to Police pupils they suspect of engaging in some sort of terrorist activity or radical behaviour, has turned them into “the secret service of the public sector” (Gary Kaye, NUT 2016 conference). Similarly, while the importance of safeguarding and the connected reported requirements are appreciated, recent developments appear to align teaching staff more closely with doctors and caring professionals rather than educators.

And now, in the midst of the COVID-19 pandemic, it looks as though the role is about to expand again: to sacrificial lamb. Recently, the Government has proposed an earliest possible date for re-opening of schools, 1 June 2020. The proposal is for a phased return, beyond the children of key workers and vulnerable children who are currently attending, to begin with Primary School pupils in Reception, Year 1 and Year 6.

Understandably, this announcement has caused something of a row between the Government, Academy chiefs, local councils, and teaching unions. On 8 May 2020, a joint statement was released by GMB, NAHT, NASUWT, NEU, UNISON and Unite calling the Government to “step back” from the 1 June date, and setting out principles and tests to be applied and met before schools could be safely re-opened (see full statement here).

As the row rages on and some schools begin re-opening, and it remains to be seen what measures the Government will adopt to ensure teaching staff are safe, many are asking the question: What if I don’t feel safe, can I refuse to teach or work in a school?

There is something a grey area created by the recent advice that anyone who cannot do their job effectively from home should go back to work. Your school might be satisfied with how remote teaching has functioned during the period of closure, and allow this to continue. However, if your school considers that remote teaching is not adequately addressing the school’s needs, they are entitled to ask you to return to work. You are not, however, forced to attend or to do all of your usual duties if you think there is a serious danger.

Section 44 of the Employment Rights Act 1996 allows employees to remove themselves from a dangerous workplace with no repercussions or recriminations (note, this will not apply to self-employed contractors like extra-curricular coaches or peripatetic staff). This will require you to have a reasonable belief of ‘serious or imminent danger’ which you could ‘not reasonably have been expected to avert’. With COVID-19 and its ubiquitous infection method, it is hard to imagine what a member of teaching staff could be expected to do to avert the danger – this is not, as a crude example, as simple as mopping up or avoiding a spill that someone might trip on.

Whether or not your school environment is dangerous depends on its particular circumstances, so be prepared to gather information to have that argument if needs be. For example, whether the dimensions of the classrooms or hallways are too small to allow for social distancing, or recording the amount of times during the day there was a breach of the 2 metre limit, or any near-misses. Maintaining social distancing is likely to be the single greatest risk to any re-opened school, especially those working with younger pupils or children with SEN/D, or any otherwise tactile pupil. Oddly enough, 2 of the identified classes for re-opening (Reception, Year 1) are the most likely to struggle with social distancing (see: children swapping lunches, sharing or fighting over toys and resources, hugging one another).

As an employee, you have a right to be made aware of the risks you face as part of your job, and how your employer is controlling them. This assessment of risks is (unsurprisingly) called a risk assessment and is part of the Management of Health and Safety at Work Regulations 1999 (often referred to as “the Management Regs”).

You have the right to ask your school when their last risk assessment was conducted, what the outcome was, and what new steps they have taken as a result – if they won’t tell you, they are breaking the law. Either your school is not giving you information required by Regulation 10 of the Management Regs, or they haven’t met their duties under Regulation 3 of the same.

Any BAME teaching staff may be especially concerned given the media coverage on the rate of COVID-19 infections and deaths within their community. If concerned, you should write to your employer and ask them to confirm that your BAME identity will be factored into the equality impact assessment of the staffing arrangements, as you are potentially more vulnerable to COVID-19 by merit of the same.

For those considering that a mask or gloves might be necessary for them, for example because you work with pupils requiring Team Teach etc. interventions which cannot be avoided, you do not have to purchase this yourself – your school should provide this under the Personal Protective Equipment at Work Regulations 1992.

If you have a recognised vulnerability, the Government advice for you remains to stay at home. As per the below list, you may be astonished as to which relatively common conditions (such as obesity, asthma, or pregnancy) categorises a person as vulnerable:

  • Aged 70 or older (regardless of medical conditions)
  • Under 70 with an underlying health condition such as those listed below
  • Anyone instructed to get a flu jab as an adult each year on medical grounds
  • Chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
  • Chronic heart disease, such as heart failure
  • Chronic kidney disease
  • Chronic liver disease, such as hepatitis
  • Chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy
  • Diabetes
  • Problems with your spleen – e.g. sickle cell disease or if you have had your spleen removed
  • A weakened immune system as the result of conditions such as HIV and Aids, or medicines such as steroid tablets or chemotherapy
  • Being seriously overweight (a BMI of 40 or above)
  • Those who are pregnant

If you are vulnerable for one or more of the above reasons but are still being forced to go in to school, you may be able to claim disability discrimination. To pre-empt any issues, it would be prudent to write to your school and remind them of your vulnerable status and ask them to confirm that they have factored into their planning that you will be unable to attend the premises.

If a member of your household is considered vulnerable, unfortunately it doesn’t look like this automatically exempts you from returning to school, but you should still raise this issue with your manager. You may be able to ask for this as unpaid leave to take care of the person as a dependent, assuming this is within your contract. If this is not an option, you should ask your school to enable you to work from home.

If you have raised your concerns but your school does not agree these are valid reasons and continue to insist that you attend the premises, refusing to do so might prompt them to take disciplinary action on the basis that you are breaching your employment contract.

How schools react to staff concerns (and resistance) will certainly depend on the feedback received from the schools which have re-opened, and whether or not the Government is willing to revise their strategy in light of developing data. If you feel your school is not taking your concerns seriously, you should seek the support of your union. If you are not already a member and have concerns about the cost of joining, some unions offer reduced or delayed joining and membership fees on request.

If you have any queries regarding this article, you can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com. Naomh is a first six pupil accepting instructions from July 2020 onwards.

Revised admissions appeals procedure approved

Article by Naomh Gibson

As per our earlier article, the Government has now updated their guidance on how primary and secondary schools should organise and run their pupil admissions appeals in light of COVID-19. The updated guidance is publicly available online (here).

As of 24 April 2020, temporary changes have been made to the School Admission Appeal Regulations 2012 in order to accommodate appeals during this unprecedented public health crisis. The emergency regulations are called the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020, which gives effect to these temporary amendments, and will remain in force until 31 January 2021.

The temporary regulations only apply to appeals lodged between 24 April 2020 and 31 January 2021, unless you lodged an appeal before 24 April which has not yet been decided. It is anticipated by DfE that by 31 January 2021, there will no longer be a need for temporary regulations, however to avoid the expiry of the measures from prejudicing any appeals that are already in progress on this date, the temporary regulations will still apply as long as the appeal was lodged between 24 April 2020 and 31 January 2021.

The temporary regulations take precedence over the Appeals Code if there is a conflict between the two. Much of the usual appeal admissions procedure remain in place, with the general scheme of amendments being to allow for more generous timeframes and greater flexibility on panel quorum to avoid adjournments or delays.

For example, usually when a panel member withdraws from a panel of 3 members, proceedings must be postponed until the return of that panel member, or a replacement must be appointed, and the appeal reheard. However, where COVID-19 has meant this is not reasonably practicable, the temporary regulations allow a panel made up of at least 2 members to continue to consider and determine the appeal.

Further, the admission authority must now allow you at least 28 calendar days to appeal from when they send the decision letter, an increase from the usual 20 school days, and another 28 calendar days’ written notice of any other deadline associated with your appeal. The temporary regulations also mean that admission authorities must review the deadline for lodging an appeal included in any decisions sent to parents after 28 February 2020 where that deadline still refers to ‘school days’, rather than calendar days or a date within that period.

If you have any queries regarding this article, you can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com. Naomh is a first six pupil accepting instructions from July 2020 onwards.

Law in the time of COVID-19: making a successful winding up petition

Article by Naomh Gibson

On 23 April 2020, the Government announced emergency measures to protect commercial tenants, to include a moratorium on evictions and a temporary ban on the the use of statutory demands (made between 1 March 2020 and 30 June 2020) and winding up petitions presented from Monday 27 April, through to 30 June, in circumstances where a company cannot pay its bills due to COVID-19.

At current time, the scope of the intended restriction and precisely how it will be implemented is unclear. This has understandably left some wondering in which circumstances a winding up petition might be permitted to proceed.

The High Court has now provided such guidance, in Shorts Gardens LLB v London Borough of Camden Council [2020] EWHC 1001 (Ch). This case concerned two applications to restrain presentation of two separate winding-up petitions against different companies by Camden and Preston councils. The petitions relate to unpaid liability orders from national non-domestic rates and certain unpaid costs orders arising out of earlier litigation.

The joint applicant (Saint Benedict’s Land Trust (“SBLT”) and Shorts Gardens) denied liability for the rates and sought injunctive relief on the basis that the debts in question were genuinely disputed on substantial grounds or were subject to cross-claims. The applicant also argued that it would be inappropriate for a winding up petition to be proceeded with, ‘until 14 days after COVID-19 has been controlled through vaccination and/or the Government make an announcement that it is safe for the United Kingdom to come out of the lockdown’.

The press announcement from Ministry of Housing, Communities and Local Government and the Department for Business, Energy & Industrial Strategy in respect of the emergency measures contained a “Notes to Editors”, which provides as follows (emphasis added):

“Under these measures, any winding-up petition that claims that the company is unable to pay its debts must first be reviewed by the court to determine why. The law will not permit petitions to be presented, or winding-up orders made, where the company’s inability to pay is the result of COVID-19….”

However, upon his analysis, Mr Justice Snowden noted that he did not consider either applicant company to be in financial difficulty from the information provided. In fact, the reverse appeared to be true, as both companies were each disputing the underlying liability orders, and SBLT was asserting a cross-claim. In an earlier hearing, the applicant companies put forward in their written submissions that they were not facing liquidity or operational challenges.

Overall, there was a total lack of financial information to support a finding that the companies were unable to pay their debts due to COVID-19, beyond witness statements from the director/trustee of SBLT and her legal representative. The veracity of these statements no doubt had to be carefully weighed, in light of the fact that a general civil restraint order was made against SBLT at an earlier date as a result of their history of ‘meritless and abusive applications’ in an attempt to avoid payment.

The learned Judge also noted the proposed measures were ‘overwhelmingly likely’ to be limited to companies in certain identified sectors of economic activity, and to relate to statutory demands and petitions based upon claims by landlords for arrears of rent. It was held that these extraordinary measures evidently intend to give relief to those facing genuine hardship, such as tenants in the retail or hospitality industry, and could not be taken advantage of by repeat-offenders like the applicant companies who were the subject of ‘outstanding court orders and longstanding arrears… owing under liability orders to local authorities’.

This decision demonstrates that the Government’s emergency measures are not carte blanche for companies to refuse paying their debts. Any Directors or limited companies facing cash-flow issues from COVID-19 must be very careful in communicating their position to creditors when seeking to buy time to make payment.

If you require any advice on your options during this unprecedented crisis, Halcyon Chambers has a dedicated Commercial and Chancery team and is still taking instructions, including for remote hearings. Please contact our clerks for further information.

Admissions appeals still going ahead subject to revised procedure

Article by Naomh Gibson

While the COVID-19 pandemic rages on and schools currently remain closed, families who have been carefully planning ahead for their child’s education may have received some bad news yesterday. Thursday 16 April 2020 marked National Primary Offer Day, when primary school places were confirmed for thousands of pupils for the academic year 2020/2021, starting September this year. Applications for primary school places were made before the January deadline, when COVID-19 was for many people an international news item with no relevance to life in the UK.

There is always some movement to places offered following National Offer Days for both primary and secondary schools, as parents accept or reject places. You may find that your preferred choice becomes available within several days due to this re-shuffling. The statistics currently available suggest that the rate of successful applications is down from last year due to an increase in applications in major cities, including Birmingham.

For those who are not able to secure their preference through the waiting list process, they may avail themselves of their statutory right of appeal in accordance with the Schools Standards and Framework Act 1998.

The unprecedented situation has many parents and carers wondering whether they will still be able to exercise this right to appeal. The good news: the Department for Education has announced plans to temporarily relax procedural regulations from 24 April 2020 until 31 January 2021 so that hearings can go ahead despite the lockdown.

Appeal panels are usually held in person, which would break the current restriction on gatherings of more than 2 people. Therefore this requirement has been amended so that the hearings will no longer need to be attended in person, and the panel may be reduced from 3 members to 2 if one member has to withdraw for any reason.

DfE have also relaxed the regulations to allow appeals to be entirely paper-based, as in decided only on what written arguments have been submitted. It is not anticipated this will be a popular substitute compared to remote hearings however due to obligations around natural justice and procedural fairness.

The process therefore will be revised as follows:-

In your rejection letter, you will be advised of the appeals process for that particular school – follow this. You may notice a change from previous years that the admission authority for the school has set new or revised deadlines for appeals to be submitted in certain circumstances.

The admission authority must now allow you at least 28 calendar days to appeal from when they send the decision letter, an increase from the usual 20 school days, and another 28 calendar days’ written notice of any other deadline associated with your appeal.

Use this time wisely to prepare an appeal letter with any evidence you think supports your position. At the earliest opportunity, provide the admission authority with your dates of unavailability and preferred modes of remote attendance, to ensure they do not arrange this when you are not available or by a method you cannot use.

Appellants will now be given 14 calendar days’ written notice of an appeal hearing (although appellants can waive their right to this), an increase again from the usual 10 school days. All deadlines for the hearing of appeals must be as soon as reasonably practicable.

The admissions authority may require some date flexibility in order to secure the attendance of suitably independent panel members, if these individuals are unexpectedly engaged in other key worker duties, caring for a sick relative, or have taken ill themselves. Communicate regularly with the admissions authority’s designated clerk to ensure clarity.

If you fail to communicate with the clerk, or cannot take part in a remote hearing and an alternative date is not practical, the appeal may go ahead and be decided on the written information submitted.

While remote hearings can be daunting, you have the ‘home turf’ advantage of being able to attend the hearing in an environment in which you feel more comfortable. Please see our blog post here which details the technologies commonly used for remote hearings (NB: this guide is written for legal professionals but may still help).

Ultimately, your success at appeal will depend on whether the appeals panel consider: firstly, the school’s admission criteria were properly followed; and secondly, the admission criteria complies with the School admissions code (‘the Code’). The Code is statutory guidance that schools are legally obliged to follow when carrying out duties relating to school admissions. This is publicly available online (here). You may ask the admissions authority to provide you with a fresh copy of the school’s admission criteria if required. 

While the procedure for your appeal has to be altered, the way in which your appeal is decided will not be different; Schools cannot use the current situation as an excuse to unfairly deny your child a place.

To use some common examples, this means a child still cannot be rejected because the admission authority:

  • Took into account any other conditions when considering your child’s application, other than the oversubscription criteria published in their admission arrangements;
  • Took into account any previous schools attended by your child;
  • Gave extra priority to children whose parents ranked their preferred schools in a particular order;
  • Took into account reports from previous schools about your child’s past behaviour, attendance, attitude or achievement;
  • Took into account your older children’s behaviour, attendance, attitude or achievement if they attend(ed) your preferred school.

These procedural changes to the regulations will come into effect, subject to legislation, on 24 April 2020. If you require any further information on the timeline of this legislation, you may contact DfE’s designated coronavirus helpline on 0800 046 8687. Lines are open Monday to Friday from 8am to 6pm and weekends 10am to 4pm.

If you have any queries regarding this article, you can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com. Naomh is a first six pupil accepting instructions from July 2020 onwards.