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On Saturday night, Members of Halcyon Chambers attended the 30th Anniversary of the Society of Asian Lawyers Legal Awards at the Royal Lancaster Hotel in London.

The night was an absolute success and the team Asia Razaq-Miah, Jags DeSouza, Jaya Sudera, Sangita Talati Bodalia and our very own Sonya Kalyan lead by President Muntech Kaur put on a fantastic event which had everything.

Congratulations to all the nominees and the winners on the night.

We hope our guests enjoyed the evening as much as we did. We look forward to next year’s event

Senior Clerk Christopher Ridley picking up a special recognition for Halcyon Chambers at Saturday night’s Society of Asian Lawyers 30th Anniversary Legal Awards.

Article by Emma Weaver

On 22^nd October 2025, the current Government announced that it would be repealing the presumption that the involvement of a parent in a child’s life would further their welfare. The news comes following a final report published by the Ministry of Justice (“MoJ”) which can be found in full here: Review of the Presumption of Parental Involvement

The decision has been hailed by many domestic abuse organisations as a vital step to addressing deficits in the family justice system for victims of abuse.

The current law

The enactment of the Children and Families Act 2014 saw the insertion of the presumption which amended section 1 of the Children Act 1989. Section 1(2A) of the Children Act 1989 reads as follows:

“(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”

As such, the starting point for the family courts is that the involvement of a parent in a child’s life will further their welfare. It should be noted, however, that there is no presumption as to what that involvement should entail and this could include direct or indirect involvement. The presumption can be rebutted as set out in the legislation but this must be demonstrated to the court. It could be argued that this places an unfair burden on a victim of abuse to demonstrate to the court that their ex-partner poses a risk to the child or children.

The presumption can be displaced where there is evidence of abuse to one of the parents by the other or to the child as a result of admissions, findings made by the family court or criminal convictions. Notably, the report provided by the MoJ outlines that even in cases where domestic abuse was present as a result of convictions, findings or protective orders, the court still made orders for the direct involvement of the perpetrator with the child or children.

Practice Direction 12J should also be at the forefront of the court’s mind where there are allegations of abuse or proven abuse and particularly, that children need not have witnessed domestic abuse to be considered a victim of the same.

The MoJ report

The report draws from research including the final report produced by the Harm Panel in 2020. The latter called for an urgent review of the presumption noting their view that the court had a‘pro-contact culture’ and found that courts had a ‘deep-seated’ and ‘systematic’ commitment to maintaining contact between children and their parents.

The report also comes days after a review was undertaken by the Domestic Abuse Commissioner whereby it was found that domestic abuse was not considered to be ‘an active issue’ in 73% of hearings it observed and in 87% of the case files it reviewed. This is echoed by the sentiments of the MoJ report noting that the court often dismissed concerns of domestic abuse as being ‘historic’ or not being serious enough.

When will the presumption end?

Unfortunately, no timescales have yet been provided but the Prime Minister, Sir Keir Starmer, has confirmed the repeal “is going to happen”. The repeal will be presented to Parliament “as soon as Parliamentary time allows”.

What will the repeal look like in practice?

The repeal is going to result in a significant change in the family justice system and impact the way in which the court will make decisions regarding arrangements for children. However, it is likely that we will have to ‘wait and see’ how the repeal is going to change things on the ground. The court will still be required to consider the parties’ Human Rights including Article 8 (right to respect for private and family life) and the welfare checklist as set out in Section 1 of the Children Act 1989.

There are also cases where one parent is faced with another who is ‘implacably hostile’ and may even produce allegations to further support a narrative that the other parent should not been involved with the children. This poses the question of whether the repeal will be detrimental to those parties in such a scenario where they must convince the court that they should be involved in their child’s life without a presumption to assist them?

Conclusion

The repeal of the presumption of parental involvement marks a significant shift, reflecting a move away from presumptions about parental roles toward a more child-centred approach. While the original presumption aimed to ensure that both parents remained actively engaged in a child’s life after separation, its removal acknowledges that involvement is not always in the best interests of a child and at times, is unsafe.

In an era where the regulation of financial products is more complex—and more essential—than ever, consumers and business borrowers alike are often left vulnerable to unfair practices. ‘A Practical Guide to Unfair Relationship Claims and Consumer Credit’ is a detailed guide that identifies the legal and practical realities of unfair relationships in credit agreements.

Drawing on key case law, extensive practical experience, regulatory frameworks, and real-world examples, this book explores how credit agreements can become exploitative, the legal protections available under the Consumer Credit Act 1974 (as amended), and the evolving role of the courts in ensuring fairness.

The book navigates through key legislation, and the concept of “unfair relationships,” showing how the law can both protect consumers and rectify wrongs. Practical case examples illustrate how these dynamics play out in real life, offering insights that are both critical and constructive.

This book is an essential resource for lawyers and consumer advocates. Whether you work within the legal system or engage with it from the outside, this book will sharpen your understanding of how justice can operate in the credit market.

About the Author

Katie Wilkinson was called to the Bar in 2003, and has since practised as a Barrister. Katie specialises in consumer credit law, having been extensively involved in all of the well-publicised consumer arguments since 2006 including unfair bank charges, s.77-79 CCA 1974 requests, mis-sold insurance and investment products, s.140 unfair relationship claims, and secret commissions.

Katie has appeared routinely in unfair relationship claims relating to the sale of PPI, motor finance claims regarding the duties of car dealerships, and unfairness arising in the context of high value secured bridging loans. She also advises lenders and credit unions as to compliance issues affecting their contractual documentation.

Halcyon Chambers is delighted to announce new pupils Emma-Justine Michaux and Lydia Pepper commenced their First Six Pupillages on 1 October 2025.

Emma-Justine and Lydia will be commencing a mixed Common Law Pupillage under the supervision of Katie Wilkinson and Muhammad Ul-Haq respectively.

Chambers wishes them every success.

by Paige Procter-Harris

It has become increasingly common for applications to be made to the Family Court for a ‘Shared lives with order’ as opposed to ‘spend time with’ applications.

Overview

A parent can make an application under section 8 of the Children Act 1989 to ‘spend time with’ their child/ren and to set out the arrangements for when they will get to spend time with them. Alternatively, a ‘lives with order’ can be applied for which sets out with whom the child/ren shall live with and in doing so that parent is afforded the ability to take the child/ren abroad for up to one month without the permission of the court or the other parent, as well as anyone else that holds parental responsibility for the child/ren.

Parent’s may see a ‘live with order’ in their favour as a way to have control over the amount of time the child/ren will have with the other parent, including obstructing holiday’s aboard, as the parent without a ‘live with’ order will need the permission of the ‘live with’ parent or the court to take the child/ren abroad. It is apparent to the Family Court that when there are no safeguarding concerns there are many good reasons for both parents to be afforded the ‘live with’ order, even if the time split between the parents is not equal.

AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1529 (Fam)

The recent decision in AZ v BX deals with the issues surrounding shared live with orders. In this case, the Judge made findings that: there were no safeguarding issues, the parents were incapable of working together, the parents failed to appreciate the importance of the other in the lives of the children and that the mother had controlled contact.

In the first instance the court made an order for the father to spend time with the children on alternate weekends during term time with an evening during the week and a 50% split of the school holidays. However, the Judge granted the mother the ‘lives with’ order.

This decision was appealed and the Appeal Court concluded that the following principles apply to a decision whether to make a ‘shared lives with order’ [77]:

• The choice is not merely a question of labelling, and it is likely to be relevant to the welfare of the subject children. The principles of CA 1989 s1 must be applied.
• A ‘shared lives with order’ will result in an unmarried father gaining parental responsibility which is a material difference to consider (although not applicable in this case).
• “In every case the appropriate choice of order depends on a full evaluation of all the circumstances with the child’s welfare being the court’s paramount consideration”.
• “The choice of the form of any lives with order should be considered alongside the division of time and any other parts of the proposed child arrangements order”.
• “A shared lives with order may be suitable not only when there is to be an equal division of time with each parent but also when there is to be an unequal division of time”.
• “It does not necessarily follow from the fact that the parents are antagonistic or unsupportive of each other that a shared lives with order will be unsuitable”.

The Appeal Court went on to consider at [81] that “the welfare advantages for each child of a shared lives with order in the present case would be that:

• It would make it more difficult for either parent to regard themselves as being in control of contact or to seek to control contact – a problem that the Judge had specifically identified.
• In particular, it would mitigate the effects of the mother’s attempts to control contact…It would thereby put the parents on an equal footing when seeking to make arrangements for the children.
• It would also put the parents on an equal footing with regard to holidays abroad including during school holidays when the children are going to spend equal time with each parent.
• A shared lives with order would signal to each parent that each was of value in the lives of the children, something the Judge had found each parent failed to appreciate.
• It would also signal to the children that each parent has, in their capacity as parent, the same inherent importance in the children’s lives.
• It would promote a sense of stability within the family: whatever the disagreements between the parents, the court had ordered that the children shall live with both of them.”

Summary

In consideration of AZ v BX, it appears there could be a shift towards more ‘shared live with’ orders being made, which can be seen as a positive move to putting parents on equal footing even if the split of time is not equal, with the children having an arrangement that accurately reflects their lived experience and highlighting the importance of both of their parents in their lives. It is evident that a ‘live with’ order in favour of one parent is not always the most favourable for the subject children and therefore the family court may seek to consider ‘shared live with’ orders more often rather than a default ‘live with’ order in favour of one parent when it serves no purpose to the best interests of the child/ren to exclude the other parent from a ‘live with’ order. It is also important to note that in such cases where the parent’s co-parenting relationship is acrimonious, a ‘shared live with’ order can help prevent control of contact and allow the subject child/ren to have a meaningful relationship with both parents.

For any booking enquiries, please contact the clerks at clerks@halcyonchambers.com

The views stated in this article belong to the writers in a personal capacity.  No warranty is given, express or implied, in respect of the contents of this article.  Nothing in this article is tendered as or is intended to be taken as legal advice and the contents should not be construed or relied upon as legal advice.  Specialist legal advice should always be taken in every case noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute. 

Keywords: Private Law Children, Child Arrangements order, Live with Order, Shared Care Order, The Children Act 1989, AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1529 (Fam)

We are pleased to confirm that the Home Office has withdrawn its refusal decision in respect of an Iranian national, following the Appeal Skeleton Argument prepared by Sonya Kalyan.

This was a post-NABA claim, in which the Home Office had already accepted a number of factors, leaving credibility as the sole issue.

In the Skeleton Argument, Sonya addressed:

1. Past persecution at the hands of the morality police, including detention and mistreatment.
2. Political activity during the nationwide protests following Mahsa Amini’s death, including participation in demonstrations, distribution of leaflets, and witnessing the arrest of a fellow protestor.
3. Risk factors on return: Kurdish ethnicity, illegal exit, and known political profile.
4. Relevant country guidance and case law including SSH and HR (Iran), HB (Kurds) Iran, and BA (Demonstrators in Britain).

The Home Office withdrew its decision prior to hearing.

If you require a detailed Appeal Skeleton Argument from one of our Immigration Specialist Counsel, please contact our clerks.

We accept instructions on both a private and controlled legal representation basis.

Home Office withdraws asylum refusal for young Iranian national ahead of hearing, following the Appeal Skeleton Argument prepared by Sonya Kalyan.

Arguments focused on:

1. The lower asylum standard of proof and the need for anxious scrutiny in credibility assessments.
2. Failure to conduct a child-focused best interests’ assessment under s.55, despite A being a minor (at the time) in local authority care.
3. A’s protest in Iran (which led to his parents’ arrest) and his UK sur place activism, placing him at real risk as a young Kurdish dissident.

If you require a detailed Appeal Skeleton Argument from one of our Immigration Specialist Counsel, please contact our clerks.

We accept instructions on both a private and controlled legal representation basis.

Article by Simon Villau

In the ongoing battle between Defendant insurers and credit-hire companies, the Court of Appeal has handed down judgment in Ali v HSF Logistics Polska SP. Zo.o [2024] EWCA Civ 1479 landing a blow to Defendant insurers by curtailing a burgeoning line of defence.

A routine pleading in defences to credit-hire actions puts the Claimant to proof on the “legality and/or roadworthiness” of their vehicle, contending that a failing on either count gives rise to a defence by reason of illegality.

This engages the ex turpi defences, which are of general application to tortious claims; ex turpi oritur actio (which is a potential defence to the entire claim) or ex turpi oritur damnum (for specific heads of loss), per Hewison v Meridian Shipping Services PTE Ltd [2002] EWCA Civ 1821.

The doctrine concerns the circumstances in which the court will, for reasons of public policy, decline to assist those Claimants whose causes of action are tainted by an illegal or immoral act. However, it is not a binary system whereby the mere fact of an illegal act precludes a Claimant’s otherwise legitimate claim for damages.

The criminal offence must be sufficiently connected to the cause of action and proportionate to the decision to accede to the ex turpi defence. Therefore, a qualitative assessment of the Claimant’s illegal conduct is required.

The leading authority on the modern law of ex turpi is Patel v Mirza [2016] UKSC 42, [2017] AC 467. Lord Toulson JSC said at paragraph 101:

“I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without (a) considering the underlying purpose of the prohibition which has been transgressed, (b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and (c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy.”

Defendant insurers often rely upon the unreported decision of HHJ Dean in the case of Agheampong v Allied Manufacturing (London) Ltd [2009] Lloyd’s Rep IR 379, where the claim failed where the Claimant did not have motor insurance.

However, in the hotly contested arena of credit hire, a further line of defence has emerged from the debate centred on the illegality argument, the so-called “causation defence”, a label reluctantly adopted by Stuart-Smith LJ in Ali v HSF Logistics.

In short, the premise of the defence is that the Claimant has not suffered a compensable loss because they are not entitled to be put in the position of having a car which they could legally use while their car was being repaired, because they could not legally use their own car at the time.

In Agbalaya v London Ambulance Service (Central London County Court, 17 February 2022) before HHJ Lethem, the causation defence was successful. The argument was simply that the Claimant was seeking compensation for a vehicle she was not permitted to use, “[h]ence there is nothing to compensate.” HHJ Lethem drew a distinction between a car that could be driven (“a driveable car”) and a car that could be lawfully used on the highway (“a useable car”).

This represented the advent of sub-species of the illegality defence unique to credit hire, given the nature of such claims. Credit hire is, of course, an issue of mitigation of loss of use of a vehicle. It is the “loss of use” which is significant, because a Claimant driving illegally has obviously not suffered the loss of lawful use of a vehicle.

In Ali v HSF Logistics, this matter came to a head, and Stuart-Smith LJ gave the leading judgment, which appears to have closed down this avenue for Defendant insurers.

The decision below

In Ali v HSF Logistics, the vehicle did not have a valid MOT at the time it was damaged in contravention of section 47(1) of the Road Traffic Act 1988.

Recorder Charman maintained the distinct line of defence, undoubtedly to the joy of Defendant insurers at the time. At paragraph 50, he said:

“[The Claimant’s] main submission in response was that the causation defence was in substance the illegality defence in another form. I disagree. The causation defence is, in my judgment, a distinct defence which is capable of applying only to the credit hire element of the claim because it is based on the distinct nature of the credit hire claim.

The diminution in value claim and the recovery claim are claims for losses caused directly by the accident itself in the case of the former, and an expense necessarily incurred in the case of the latter, because unless the car was recovered, it could not be repaired. The credit hire claim is different. It is a claim founded in the principle of mitigation of loss. If it succeeds, it does so because it is an expense reasonably incurred by a claimant in mitigation or avoidance of a claim for loss of use of their vehicle. The question of whether a claimant acts reasonably in hiring a replacement vehicle is separate from any issue of illegality.”

And at paragraph 58, he explained that the credit hire claim failed:

“because he had no loss of use claim, by reason of not having a vehicle which he was entitled to use on the public highway at the time of the accident, by reason of the absence of an MOT certificate, and he has not established that he could and would [have] obtained a valid certificate at any time during the hire period.

Before the Court of Appeal

The matter came to a head before the Court of Appeal when Stuart-Smith LJ rejected this new line of defence on the basis that the underlying premise of the causation defence involves a fundamental misconception of a claim for loss of use. At paragraph 47:

“In my judgment, there is a fatal flaw at the heart of the Defendant’s submissions on the causation defence, which is the assertion that the Claimant has suffered no loss as a result of the Defendant’s tort. The error stems from a failure to appreciate the nature of a claim for “loss of use”. As explained by Lagden at [27], the loss which falls to be compensated in such a case is inconvenience: … The defendant’s tort causes the claimant to be deprived of the use of an item of property, which causes inconvenience in the form of inability to use it for private transport. The fact that a claimant does not have a valid MOT certificate for the car does not alter the fact that they have been deprived of its use or the fact that this deprivation would have caused inconvenience but for the hiring.”

Stuart-Smith LJ highlighted that the causation defence would see any technical or minor criminal offence, such as a “non-conforming number plate”, defeat a claim for credit hire. He clarified that it is the loss of use of the convenience of a private vehicle, rather than the loss of use of a lawfully drivable vehicle, which is the true loss in a credit hire claim.

He considered that the causation defence would create a binary system which could potentially see Defendant insurers relying on such minor criminal infractions to avoid paying damages. However, he highlighted that the ex turpi defence is a creature of public policy, whereby the court may decline to assist a Claimant who has engaged in criminal behaviour where it would be repugnant and/or an affront to public decency to do so. He recognised that not every type of minor criminal offence is likely to engage public policy in such a way, and therefore, the causation defence was seen as a mechanism of circumventing the crucial ingredient of proportionality.

At paragraph 55, he stated:

“I am quite unable to accept that the causation defence is a proportionate response to the problem of claimants who have claims based on inconvenience and the need for suitable transport but who have, in one way or another, committed minor offences in relation to their damaged vehicle. In my judgment, the causation defence is ex turpi causa by another name but without the essential requirement of proportionality.”

Consequently, Stuart-Smith LJ has effectively shut down this offshoot of ex-turpi defence, and for the time being, a line has been drawn under the causation defence.

Halcyon Chambers is delighted to announce that Simon Villau and Sonya Kalyan have accepted offers of tenancy.

This comes after both successfully completed pupillage under the supervision of Katie Wilkinson and Tony Muman respectively.

During their Pupillage year, both Sonya and Simon gained experience in all of Chambers’ core specialist areas including Civil, Family and Immigration Law. Both have proved incredibly popular with our Instructing Solicitors and already have experience of work above the level of their Call.

Everyone at Halcyon Chambers welcomes both as Members of Chambers and we look forward to seeing their careers grow over the coming years.

Any enquiries in relation to the availability of either Sonya or Simon should be directed to the Clerks.

Article by Christine Rutkowski

Yehuda Tescher v. Direct Accident Management and AXA Insurance UK Plc v. Spectra Drive Limited [2025] EWCA Civ 733

Two recent appeals have considered the question of when and in what circumstances a non-party credit hire company should be made liable for a Defendant’s costs in a credit hire claim.  It is worthy of note that the guidance provided by the Court of Appeal considered cases where the Claimant was protected by Qualified One-Way Costs Shifting (QOCS) and where the Claimant was alleging that they were impecunious.

Both cases had their origins in claims brought for damages including personal injury and credit hire following road traffic collisions; therefore QOCS applied.  In each case, albeit for different reasons, costs orders were made against the Claimant and in favour of the Defendant. However, due to the effect of QOCS, neither of those costs orders were enforceable. The Defendants each applied for a non-party costs order (NPCO) against the credit hire companies. Those applications were refused; however permission to appeal was granted and the cases were sent straight to the Court of Appeal for consideration (given the disparity of decisions on NPCOs at County Court level).  The Justices allowed the appeals and gave guidance as to when non-party costs orders would be made in QOCS cases where credit hire charges were included.

Background to Tescher v. Direct Accident Management Limited (DAML)

On 19 November 2018 the Defendant, Mr. Tescher’s vehicle struck the Claimant (Mr Quesda’s) motorcycle. The Claimant signed successive credit hire agreements with DAML. In due course, the Claimant brought proceedings. The Particulars of Claim included a claim for general damages for personal injury and the sum of £19,633.36 for credit hire charges incurred over a period of 88 days hire. Those credit hire charges represented over 85% of the value of the special damages claim. The Claimant pleaded a positive case that he was impecunious in accordance with Lagden v O’Connor [2004] 1 AC 1067.

The matter was listed for a Fast Track trial before District Judge Swan in the County Court in Clerkenwell & Shoreditch on 08 December 2022 where the Judge dismissed the claim and directed that the Claimant pay the Defendant’s costs, not to be enforced without permission of the court, as QOCS applied. However, directions were given for DAML to be joined as a Second Defendant for the purposes of considering an application for an NPCO.

The application came before District Judge Jeffs on 10 May 2023, who dismissed the application for an NPCO, as he was not satisfied that DAML was the “real party” or that DAML had caused costs to be incurred, which otherwise would not have been incurred save for DAML’s involvement. Mr. Tescher sought permission to appeal.

Background to AXA Insurance UK Plc v. Spectra Drive Limited (Spectra)

On 23 October 2019, the Claimant (Ms. Nicola Smith) was involved in a road traffic incident with a vehicle insured by the Defendant (AXA) and liability was admitted.  The Claimant’s vehicle was written off and on the same date, she entered into a credit hire agreement with Spectra. The credit hire lasted for 89 days. On 24 August 2020, the Claimant’s issued proceedings directly against AXA and her claim included general damages for pain, suffering and loss of amenity (PSLA) as well as a claim for special damages of £16,160.94 – the lion’s share of which was made up of credit hire charges. Again, the Claimant pleaded impecuniosity and sought to recover from AXA the full credit hire rate and as in the DAML case, all aspects of the claim for credit hire charges were put in issue by AXA.

Despite making a claim for 89 days of credit hire, there was evidence that the Claimant had insured another vehicle after 10 days, which (AXA asserted) proved that the Claimant had been fundamentally dishonest in bringing her claim.  The Claimant subsequently discontinued her claim on 28 May 2021 – later explaining that she had simply done what her solicitors “told her” to do. The usual costs order under CPR r. 38.6(1) followed – with the Claimant ordered to pay the Defendant’s costs not to be enforced without permission of the court pursuant to QOCS.

On 29 June 2021, AXA brought an application for two orders. One was an order setting aside QOCS protection on the grounds of fundamental dishonesty. The other was for an NPCO against Spectra.

The application came before Deputy District Judge Carson on 18 February 2022. The Claimant represented herself with Spectra and AXA respectively represented by Counsel. DDJ Carson found that the Claimant had not been fundamentally dishonest because the vehicle that she had insured 10 days after the accident had not been available for her to use until she received the benefit of the total loss claim and that she had used the hire car during the claimed period.

The NPCO application was adjourned and after a second hearing; further written submissions and a substantial delay; an order was made in AXA’s favour requiring Spectra to pay 65% of AXA’s costs.

On appeal to HHJ Gargan, various findings of fact made by DDJ Carson were overturned and AXA’s application for a non-party costs order was refused.  In his judgment, HHJ Gargan concluded that Spectra was the principal beneficiary of the proceedings throughout and held that there were some factors which distinguished this case from a standard credit hire claim.  However, what the Judge called AXA’s “good fortune in escaping a judgment and costs” was also considered a factor which suggested that it would not be ‘just’ to make a costs order against Spectra.

The Appeals

Permission to appeal to the Court of Appeal was granted in both cases and it was directed that they be conjoined.  The Appellants in both DAML and Spectra contended that NPCOs ought to have been made against the respective credit hire companies.

The Court of Appeal considered in detail the law relating to Credit Hire in general at [20 – 24]; NPCOs at [25 – 33]; QOCS and its exceptions at [34 – 45]; authorities on NPCOs generally and High Court decisions on NPCOs made in credit hire cases after the implication of QOCS at [46 – 64], following which Lord Justice Birss (giving the leading judgment) gave guidance applicable to NPCOs in credit hire cases – suggesting that a two-stage process should be approached by the court in the exercising of its discretion in such cases and applications as follows:

It should firstly be asked whether in the circumstances an NPCO of some kind should be made against a credit hire company (which involves examining if the non-party costs jurisdiction is engaged) and secondly, if so, the amount of costs awarded should be decided (in so doing, determining what a ‘just’ costs order would be – including questions of attribution).

In the DAML case, it was held that the credit hire company is the real beneficiary of the claim for damages for the credit hire charges and had tacit control over the litigation. The causation and control aspects of the test to engage the NPCO jurisdiction were therefore satisfied. There were no other special circumstances which suggested that no order should be made at the first stage and an NPCO ought to be made.  Regarding the second stage of the exercise, it was found that as DAML’s credit hire charges were several times larger than the damages for personal injury, DAML were ordered to pay all of the Defendant’s costs.

In the case of Spectra, it was held that an NPCO would be the ‘just’ outcome.  The fact that the claim which was discontinued would or might well have succeeded does not justify a different order.  Further, as the DDJ’s original order required Spectra to pay 65% of the costs and this had not been challenged in respect of apportionment, the original NPCO was restored.

Conclusion

The Court of Appeal confirmed that the elements of a credit hire case – when taken together – are enough for a court to conclude that “absent some reason why not” an NPCO against a credit hire company is likely when a costs order is made against a QOCS protected Claimant.

In relation to Stage 1 of the process, where the claim includes a claim for hire obtained on credit (i.e. where payment is deferred by reference to an action for damages) and there is an allegation that the Claimant is impecunious, for all intents and purposes litigation (including settlement) is the only realistic means by which the credit hire company will be paid for hire.  It therefore follows that the credit hire agreement (for which the credit hire company is responsible) is a “fundamental cause of the legal costs incurred by the Defendant” which is sufficient to satisfy the requirement for causation for NPCO purposes.  A ‘but for’ causation approach was considered unnecessary.  Further, Lord Justice Birss found that a credit hire company has sufficient control of the litigation as a result of the structure of credit hire arrangements – absolute control is not required.

It was also found that “as a matter of reality” (both practically and economically) a credit hire company is the real beneficiary of the litigation for damages in respect of credit hire.  They are essentially the ‘real party’ in a claim which includes credit hire charges.

As for Stage 2 (the amount of costs payable), in cases where the credit hire claim is several times larger than the personal injury claim (as was the case in both DAML and Spectra), the Court of Appeal found that an order for all the Defendant’s costs would be payable – absent some special feature.

The Court of Appeal’s judgment can be found here.

In an appeal against a civil penalty of £10,000 imposed on J. N. Dairies Limited for allegedly employing Veerpatap Singh, who was discovered to be working illegally in the UK, Tony Muman was instructed by the Government Legal Department for the Secretary of State.

J. N. Dairies contested both the liability for the penalty and its amount, while the Secretary of State asserted that Singh was employed by J. N. Dairies during the relevant period.

Her Honour Judge Wall heard the appeal over two-days sitting at the Birmingham County Court.

Factual Background

J. N. Dairies is a family-owned dairy business. On 2 November 2023, immigration officers entered the business premises and encountered Singh cleaning a van. Singh had a complex immigration history, having overstayed his visa and claimed asylum, which was subsequently refused.  The central issue was whether Singh was indeed employed by J. N. Dairies or present for other reasons.  J. N. Dairies argued that Singh was on site as a favour to his uncle, an employee of J. N. Dairies, and not as an employee.

Legal Framework

The Immigration, Asylum and Nationality Act 2006 prohibits the employment of individuals who do not have the right to work in the UK.  The Secretary of State can impose penalties for violations of this provision.  The appeal process allows employers to contest the imposition of penalties based on liability or the amount of the penalty.

Burden of Proof

A preliminary issue arose as to which party bore the burden of proof.  HHJ Wall was asked to rule on the issue determinatively for the first time in a civil penalty appeal issued for illegal working.

It was common ground that the standard of proof to be applied is the balance of probabilities, which is the usual standard in civil proceedings. The primary issue in contention was the allocation of the burden of proof.

Leading Counsel for J. N. Dairies contended that the burden of proof rested with the Secretary of State relying on the statutory scheme’s reference to the appeal being by way of re-hearing (see s17(3) IANA).  His contention was that since a penalty is only imposed if the Secretary of State satisfies itself of the conditions for its imposition, it must therefore be for the Secretary of State to satisfy the Court in a re-hearing.  He also argued that the State had imposed a financial penalty and as such the State bore the burden of proof to establish the factual basis for the penalty.

Tony Muman argued that the statutory language in s17(1) IANA explicitly places the burden on the employer to show they are “not liable”, and that the reference to a “re-hearing” does not imply that the Secretary of State must bear the burden of proving its case again.  Instead, it means that the court undertakes a merits-based approach to the appeal, considering all evidence presented, including evidence not before the Secretary of State when the penalty was imposed (see s17(3)(b)).  This position is supported by appellate-level authorities, particularly the Court of Appeal’s guidance in Akbar v Secretary of State for the Home Department EWCA Civ 16 and Khan v HM Revenue and Customs EWCA Civ 89.  In Akbar, the Court observed that s17(1) “places the burden on an employer to demonstrate to the court that it is not liable” (paragraph 8).  In Khan, the Court stated that the general principle is that where a statute provides a right of appeal against enforcement action by a public authority, the burden of establishing the grounds of appeal lies with the employer (paragraph 70).  This principle is reinforced where the relevant facts are within the employer’s knowledge (paragraph 71).

Upon reviewing the arguments and authorities, HHJ Wall concluded that Tony Muman’ssubmissions were correct.  In this appeal, it was for J. N. Dairies to prove its case.  The weight of appellate authority recognises the general principle that an appellant bears the burden of proof in a civil penalty appeal.  The “re-hearing” of the decision to impose the penalty refers to a merits-based approach that is not limited to the material before the Secretary of State and does not reverse the usual burden of proof on an appeal.

On instruction Tony Muman agreed that this general principle can be disapplied if there is something in the statute or the nature of the appeal that supports a contrary position.  However, neither applied in this context.  Section 17(1) IANA provides that the employer may appeal on the grounds that they are not liable, are excused payment, or the penalty amount is too high.  This statutory wording is consistent with the general rule that the employer must establish the grounds of appeal.

The real nature of the appeal is whether Singh was employed by J. N. Dairies.  This issue was peculiarly within the knowledge of J. N. Dairies, not the Secretary of State.  Therefore, there was no basis for departing from the usual approach that it is for the employer to show that it is not liable for the penalty.

Similarly, there is no basis for departing from the usual approach when considering the appeal against the quantum of the penalty.  Neither the statutory language nor the essential nature of the appeal provides any basis for doing so.  Further, where an employer wishes to present additional factors to support a departure from the penalty approach set out in the Code, those factors are within the employer’s knowledge, not the Secretary of State’s.

Findings and Reasons

HHJ Wall held that Singh was indeed employed by J. N. Dairies.  The evidence presented, including Singh’s actions at the time of the encounter and the context of the intelligence leading to the immigration officers’ visit, supported this finding.  The explanation provided by J. N. Dairies regarding Singh’s presence was found to be unconvincing.

• The encounter occurred while Singh was engaged in tasks typically performed by an employee.
• The timing and circumstances of the encounter suggest regular employment rather than a casual visit.
• The alternative explanation offered by J. N. Dairies was dismissed due to inconsistencies and lack of credible evidence.

 Amount of Civil Penalty

HHJ Wall also addressed the second ground of appeal, namely the amount of the civil penalty to be paid.  The court recognised that there was a discretion to impose a penalty at all, but held that the £10,000 penalty was appropriate given the circumstances of the case.  J. N. Dairies arguments for mitigation, including their cooperation with authorities and the social context of Singh’s presence, were deemed insufficient to justify a reduction.

Conclusion

The appeal was dismissed, and the civil penalty of £10,000 upheld with J. N. Dairies having to pay the Secretary of State’s costs of defending the appeal.

Tony Muman is an expert in Civil Penalty Notice appeals and accepts instructions for both Employers and the Home Office. 

For any booking enquiries relating to Tony Muman please contact his clerk cridley@halcyonchambers.com

Ramby De Mello leading Tony Muman and Susana Ferrín of No5 Barristers’ Chambers defend claim in the High Court alleging that the Government of India hatched or maintained a plan in the UK to forcibly abduct and smuggle by yacht to a Caribbean island Mr Mehul Choksi for the purpose of extracting a false confession under torture and to unlawfully render him to India where he is wanted over his alleged involvement in one of India’s biggest bank frauds, said to be in the region of $1.8billion.

In a very high profile case, Mr Mehul Choksi alleges that the Government of India conspired with named individuals and entered into an unlawful means conspiracy in the UK to unlawfully render him to India from the Caribbean.  For a more detailed background of the alleged facts, see the decision of Robertson J in the Eastern Caribbean Supreme Court, Antigua and Barbuda.

Ramby, Tony, and Susana act for the Fifth and Sixth Defendants, instructed by Galwinder Kang at Murria Solicitors.

On Monday 16 June 2025 Mr Justice Freedman conducted a case management hearing, dismissing the Indian Government’s application that its State Immunity application should be bifurcated from the jurisdictional complaints raised by the other defendants.

The case raised important points about jurisdiction and immunity which are yet to be decided.

The case will next come before the High Court over a five-day hearing to determine arguments on State Immunity and Jurisdiction.

For press reports, see:

• The Times, “‘Kidnapped’ diamond tycoon sues Indian government in London”
• Reuters, “Fugitive jeweller Choksi accuses India of orchestrating his kidnap in Antigua”
• The Hindu, “Mehul Choksi takes ‘kidnapping’ allegations against India to U.K. court”
• Bloomberg, “Diamond Tycoon Alleges India Abducted Him to Extract False Confession”
• The Economic Times, “Diamond tycoon Mehul Choksi claims India abducted him to extract false confession”
• The Telegraph: “Diamond Tycoon ‘kidnapped and smuggled on to yacht in honeytrap plot’”

For any booking enquiries for Ramby or Tony, please contact the clerks at clerks@halcyonchambers.com, or on 0121 237 6035.

Article by Jamie Hughes

Mr Joshua Parker v (1) Skyfire Insurance Company Limited (2) Spectra Drive Limited [2024] EWHC 1060 (KB)

This case concerned a High Court appeal from the County Court at Liverpool and considered, primarily, an application by the Defendant for non-party disclosure under CPR 31.17. The underlying claim included a claim for credit hire following a road traffic accident.

The disclosure sought included recordings of telephone calls said to include representations made to the Claimant in advance of him signing the hire documents. While the focus of the original judgment and the appeal was on the application itself, this necessitated discussion about whether such evidence was likely to support or adversely affect either party’s case. Almost inevitably, this led to a discussion about misrepresentation in credit hire in more general terms.

The court made a number of important observations when considering the enforceability of hire contracts based on alleged misrepresentations:

• It is not uncommon in credit hire cases for the claimant to be told -incorrectly – that he or she will have no personal liability for the hire charges. (§24)
• There was rightly no suggestion in this case that the contract was unenforceable or invalid because Mr Parker did not understand what he was signing. It is well-established that it unnecessary for a contracting party to have understood the true nature of the contract in order to be bound by it: Burdis v Livsey [2002] EWCA Civ 510 (§31)
• The effect of a misrepresentation is only to render a contract voidable at the option of the innocent party. It is not thereby rendered automatically unenforceable. A voidable contract is valid unless and until it is avoided. Avoidance requires the innocent party to take some step to rescind the contract. Rescission is not available unless it is possible to make restitutio in integrum. A contract cannot be rescinded if it has been affirmed by the innocent party with full knowledge of the facts and of his or her right to avoid (§32).

The court highlighted that the two most relevant questions above related to affirmation and restitution.

As regards affirmation, the Court stated that the correct question was whether the Defendant could point to a real prospect that the contract is both capable of being avoided in principle, and, if so, might in fact be avoided by the Claimant. This would be a factual question to be addressed in each individual case. In Skyfire, the Court found that Mr Parker had brought his claim to recover the charges in express reliance on the hire contract and maintained his opposition of the disclosure application through counsel. The Court therefore concluded that there was no basis for suggesting he might seek to avoid the contract having not done so to date.

However, the Court went on to consider whether avoidance is an option open to the Claimant at all if restitution can no longer be made. The hire agreement in this case was a contract for services which had been fully performed. Mrs Justice Dias referenced Chitty in saying:

‘In this respect, a contract for services is very different from, for example, a contract for the sale of goods where the goods themselves can be returned, even if it might be necessary to make some allowance for depreciation. Although there are indications that the courts might be prepared to adopt a slightly more flexible approach to restitution than in the past, it is still the case that a fully performed contract for services cannot be rescinded: Chitty (op.cit) paragraphs 10-139 to 10-140”

‘This, it seems to me, is an insuperable obstacle to avoidance of the contract which exists independently of any misrepresentation or affirmation. It follows that even if the application were granted and even if the disclosure fully supported a case of misrepresentation, Skyfire would be unable to establish any circumstances in which Mr Parker would be relieved of his liability under the contract with Spectra’

Misrepresentation arguments are made on a daily basis in county courts up and down the country in credit hire trials, however courts very rarely address the underlying contractual principles and instead focus almost entirely on whether there has been a factual misrepresentation. This decision is a stark reminder that the underlying legal principles remain fiercely relevant and should be engaged with on each occasion. The High Court was at pains to point out that “it is not possible to lay down any general rules” (§29) however it is difficult to see how, in light of the passages referred to above, misrepresentation defences can succeed in relation to hire agreements which have been fully performed.

Article By Harry Owen

Within the last week (01 April – 03 April 2025) the Supreme Court heard the three linked appeals of Johnson v FirstRand Bank (UKSC 2024/0158), Wrench v FirstRand Bank (UKSC 2024/0159) and Hopcraft & Anr v Close Brothers UKSC 2024/(0157).

Ultimately, the question being considered is what duty, if any, motor dealers owe to consumers when selling finance or whether finance was mis sold, and what compensation, if any, is due to the consumer.

The primary position advanced by Close Brothers and FirstRand Bank are, broadly, that the Motor Dealer is not a fiduciary, and in the alternative, if the Motor Dealer is a fiduciary, that consumers who complain should not be entitled automatically to a full refund of commissions paid.

Motor Dealer as a Fiduciary

The argument presented on behalf of consumers is that when it comes to selling finance, a Motor Dealer takes on a responsibility to act in a consumer’s best interest to the exclusion of all others, including their own.

The role of a fiduciary carries with it a duty either as a full fiduciary (i.e. to act solely in the best interests of the consumer) or alternatively, a lesser duty to provide customers with advice on finance on a disinterested basis. In either event, if acting as a fiduciary, and if a Motor Dealer is to receive commission from a finance company, the Motor Dealer must first obtain consent to do so from the consumer.

The primary basis for the appeal states that the Court of Appeal erred in finding that Motor Dealers owed a fiduciary duty to the consumer when selling finance.

Arguments in the Alternative

The alternate arguments put on behalf of Close Brothers and FirstRand Bank are applicable only if the Supreme Court places an enhanced duty on Motor Dealers.

The arguments forwarded create some tension between finance companies and Motor Dealers – potentially pushing the liability for any compensation away from lenders and toward the Motor Dealers.

Close Brothers and FirstRand Bank made further submissions in relation to secret commissions and, in particular, the case of Hurstanger Ltd v Wilson [2007] EWCA Civ 299. Close Brothers and FirstRand Bank proposed that different remedies should be considered in circumstances where a Motor Dealer disclosed the existence of commission, but not the amount.

This is important and likely to affect a great number of potential claims, as the majority of Motor Dealers relied upon standard paperwork which included disclosure of the potential existence of commission.

Submissions were made regarding the case of Plevin v Paragon Personal Finance Ltd [2014] UKSC 61 and the concept of an unfair relationship under s140 of the Consumer Credit Act 1974. In Plevin it was found that a failure to disclose excessive commissions received in relation to Payment Protection Insurance payments, could result in an unfair relationship, entitling a consumer to compensation. Close Brothers and FirstRand Bank sought to distinguish the case of Plevin from the current case, on the basis that the nature of the commission was too dissimilar to provide a direct comparison.

The National Franchised Dealers Association

The Supreme Court also heard submissions from The National Franchised Dealers Association (NFDA), an intervenor in the case. The NFDA made submissions on behalf of Motor Dealers, setting out a background to the sales process, arranging of finance and the commercial realities of vehicle sales.

The NFDA focused on the Court of Appeal’s finding that the duties arising during vehicle sales were entirely separate from those arising when finance brokering, describing two distinct parts of the sale, with the Motor Dealer firstly dealing with the sale of the vehicle and then moving into an entirely separate role as a broker. The NFDA portrayed a more complicated and closely entwined process, where both the vehicle sale and the finance brokering take place simultaneously.

Submissions from both Close Brothers; FirstRand Bank and the NDA, averred that the Court of Appeal had gone too far in creating a fiduciary relationship between the Motor Dealer and the consumer that had never previously been present. This position was later echoed by the Financial Conduct Authority, during its submissions.

Johnson, Wrench and Hopcraft

Submissions on behalf of Johnson, Wrench and Hopcraft, took a differing approach, focusing to a much greater degree on the claim of bribery and the liability for and quantum of awards.

The focus on bribery was significant, perhaps because if it enables a claim to be made directly to the finance companies for cancellation of the contract and return of all monies and payment of the commission to the consumer. If found, this would greatly increase the potential quantum of claims made by consumers.

There were limited submissions by Johnson, Wrench and Hopcraft attempting to establish that there was a fiduciary relationship, or a duty to provide disinterested advice, suggesting that Motor Dealers have undertaken a classic finance broker role in assessing a consumer’s needs and recommending products that are appropriate.

This approach resulted in numerous judicial interventions, from seeking clarification as to the precise nature of the duty owed to how these circumstances could be distinguished from similar sales situations where a fiduciary relationship does not exist.

Representations were also made by Johnson, Wrench, and Hopcroft averring that an unfair relationship under s140A of the Consumer Credit Act 1977 was created in the circumstances of the three cases under review. Johnson, Wrench, and Hopcroft attempted to draw a direct analogy between Plevin and the current case as well as to define the calculation of the commission by reference to the cost of the finance and not the finance agreement as a whole.

FCA Submissions

The FCA made submissions as an intervener, straddling the positions forwarded by the parties. The FCA expressed support for the contention that Motor Dealers are not a fiduciary, but conversely supported the contention that Motor Traders have a duty to provide disinterested advice in order to protect consumers. The FCA averred that the application of a Plevin– like approach to the current facts was appropriate and suggested that the calculation of the commission as a percentage of the cost of finance and not the full cost of the loan was the most suitable approach.

The FCA provided expert guidance on the regulatory regime and their interpretation and expectations of a Motor Dealer’s role and the nature of the relationship between the dealer, the consumer, and the finance provider.

Conclusion

Much opinion has been published in recent days, speculating as to the potential judgment of the Supreme Court. For every opinion that confidently predicts a victory for Close Brothers and FirstRand Bank, you will find one confidently predicting a victory for Johnson, Wrench, and Hopcroft. Perhaps tellingly, for each of those opinions, you will find a dozen or more, non-committal suggestions that the case could be determined either way.

Perhaps an outright ‘victory’ for either party is unlikely, with the prospect of an intermediate position being established as the most likely outcome. At this stage, at least those interested can take comfort from the fact that the next step towards clarity is on the horizon. The Supreme Court has indicated that judgment could be handed down as soon as July 2025, with the FCA anticipating publishing guidelines around 6 weeks thereafter, as necessary.

Until then, the wait continues…

Sonya Kalyan recently successfully represented a Namibian national before the First-tier Tribunal (Immigration and Asylum Chamber) in Newport.  This blog highlights the importance of robust legal argument and thorough case preparation in asylum appeals.

Sonya was instructed in this matter by Migrant Legal Project, a specialist organisation dedicated to providing expert legal advice and representation to vulnerable migrants, including asylum seekers, victims of trafficking, and those facing removal from the UK.  Their tireless commitment to access to justice for those in need was instrumental in achieving this positive outcome.

Background

The Appellant, referred to as ZVR due to an anonymity order, is a Namibian national who sought asylum in the UK.  She made her initial asylum application on 20 December 2022, which was refused by the Secretary of State for the Home Department (SSHD) on 9 January 2024.  Because ZVR’s application was made after 28 June 2022, it was considered under the provisions of the Nationality and Borders Act 2022 (NABA 2022), which introduced significant changes to the asylum framework, including a two-stage test for assessing refugee status.

ZVR’s claim was based on her fear of persecution due to her experiences as a victim of gender-based violence (GBV) and the systemic failures of the Namibian state to provide sufficient protection.

The appeal was heard on 7 March 2025 before First-tier Tribunal Judge Boyes, with the SSHD as the Respondent.

The Legal Framework

The appeal was considered under the Nationality, Immigration, and Asylum Act 2002 and the NABA Act 2022. The key legal issues were:

• Whether ZVR’s claim fell within the scope of the Refugee Convention.
• Whether she had a well-founded fear of persecution for a Convention reason (namely, membership of a particular social group).
• Whether there was a sufficiency of protection in Namibia.
• Whether internal relocation was a viable option.

The Tribunal’s considerations and findings

The Tribunal noted that while the SSHD conceded ZVR’s nationality and the fact that she had suffered GBV, she did not accept that ZVR was claiming asylum for a Convention reason.  Specifically, the SSHD argued that women in Namibia do not form a Particular Social Group (PSG) under the Refugee Convention, relying on their Country Policy and Information Note (CPIN).  The SSHD argued that while ZVR was a victim of domestic violence, this alone did not amount to persecution for a Convention reason.

Sonya robustly argued against this position, submitting that ZVR possessed an innate characteristic beyond simply being a woman.  She was not only a woman but a victim of severe domestic and sexual violence in a society that does not provide adequate protection for such victims; highlighting that ZVR’s status as a survivor of GBV, combined with cultural and legal norms in Namibia, meant that she belonged to a PSG.

The Tribunal agreed, finding that ZVR’s experiences and the societal context in which they occurred established her membership of a PSG under the Refugee Convention, relying on jurisprudence such as Islam and Shah [1999] UKHL 20.

Sonya went on to argue, relying on expert evidence, that there is no sufficiency of protection in Namibia.  The expert report detailed how the dual judicial system, which includes both state and traditional courts, often results in GBV cases being treated as private matters, leaving victims without recourse.  It also outlined the significant cultural barriers preventing women from seeking protection, including societal norms that reinforce male dominance and discourage intervention by law enforcement.

The Tribunal accepted that, despite the existence of legal protections on paper, the reality was that state authorities failed to provide effective protection for victims of GBV in Namibia.

Sonya went on to argue that internal relocation was not a viable option for ZVR.  Namibia’s small population, the interconnected nature of Herero communities, and the cultural expectation that a woman remains under her husband’s control meant that relocation would not be safe or reasonable.

Again, the Tribunal accepted this argument, noting that ZVR’s former husband had a wide network and worked in transport across Namibia, making it highly likely that he would find her if she attempted to relocate.

Outcome and significance

The Tribunal allowed ZVR’s appeal on asylum grounds, granting her refugee status.  The appeal on humanitarian protection grounds was not necessary to consider as ZVR had succeeded in establishing a Refugee Convention claim.

This judgment reaffirms the importance of detailed factual development, use of expert evidence, and focused legal submissions in asylum jurisprudence.  It also underscores the barriers faced by women experiencing GBV in jurisdictions where societal and legal frameworks fail to offer genuine protection, and the UK’s duty to afford international protection to those at risk.

Sonya accepts instructions across all areas of immigration and asylum law.  To instruct her, please contact the immigration clerk.

• 0121 827 9435 – Civil
• 0121 481 2388 – Immigration
• 0121 481 2871 – Family

Counsel Emma Weaver recently advised and successfully represented the appellant father in the High Court sitting at the Royal Courts of Justice on an appeal to overturn findings made against the appellant father.

During the course of child arrangement proceedings, the matter came before the court at first instance for a 3-day contested, fact-finding hearing heard by the Designated Family Judge. The appellant father had a serious and far-reaching finding made against him namely that he had sexually abused his daughter who was then 4 years old. Consequently, he was denied a relationship with his daughter.

Whilst the appellant father did not have the benefit of legal representation during the fact-finding process, upon seeking advice from Emma, grounds of appeal and a skeleton argument were submitted to the High Court. The case was somewhat distinct in that the appellant father was significantly out of time for lodging an appeal and therefore, Emma firstly had to persuade the High Court that permission out of time should be granted.

Permission to appeal, along with appealing out of time, was considered on the papers and granted in light of Emma’s persuasive grounds of appeal and skeleton argument. Following the hearing of submissions, the High Court allowed the appeal and overturned the serious finding made against the appellant father. Findings will rarely be interfered with by an appellant court. However, Emma’s meticulous preparation and compelling advocacy played a pivotal role in securing the successful outcome of overturning the findings.

This success is a testament to Emma’s unwavering commitment to her clients and her profession.

The full judgment of the case can be found here.

By Sonya Kalyan, Counsel for the Claimant

Introduction

The case of Lafronte v Johnson [2025] EWFC 20 (B) is a stark illustration of the unintended consequences of systemic delays in the criminal courts.  The Family Court was required to adjudicate a committal application for breaches of a Non-Molestation Order (“NMO”) — an issue ordinarily reserved for the criminal courts.  This case not only highlights the interplay between the civil and criminal justice systems but also underscores the practical difficulties faced by victims of domestic abuse seeking enforcement of protective orders.

Legal Framework

Under the Family Law Act 1996, a NMO is designed to protect victims from harassment, threats, or violence.  Breach of such an order constitutes a criminal offence under section 42A of the Act, punishable by up to five years’ imprisonment.  However, where criminal prosecution is not feasible or is delayed, the civil courts retain jurisdiction to enforce compliance through contempt proceedings, as affirmed in Hale v Tanner [2000] 2 FLR 879.

The evidential threshold for contempt proceedings is the criminal standard — proof beyond reasonable doubt.  In Lafronte v Johnson, the Family Court was compelled to assume a role typically reserved for the criminal justice system due to delays in listing the Defendant’s criminal trial until December 2026 — over five years after the initial breach.

Factual Background and Analysis

The Claimant, Lydia Lafronte, alleged five breaches of the NMO made in April 2021 and extended until April 2023. The breaches occurred between June 2021 and June 2022. The Family Court found three of the five breaches proven:

1. 20 June 2021 – Unlawful Attendance at the Claimant’s Home: The Defendant attended the Claimant’s home on Father’s Day despite being prohibited from doing so. Although the visit was facilitated by the Claimant’s parents, the court found that the Defendant bore responsibility for ensuring compliance with the NMO (Re W (Abduction: Committal) [2011] EWCA Civ 1196).

2. 26 October 2021 – Prohibited Telephone Contact: The Defendant initiated a telephone call to the Claimant, claiming concern for their child. The court rejected the reasonable excuse defence, holding that alternative lawful channels of communication were available (Re L-W (Enforcement and Committal: Contact Orders) [2010] EWCA Civ 1253).

3. 24 June 2022 – Unlawful Email Communication: The Defendant directly emailed the Claimant, again in breach of the NMO. The court emphasised that indirect means of communication (e.g., through solicitors) were expressly mandated by the NMO.

The court dismissed the remaining two allegations due to evidential insufficiencies, particularly in relation to a disputed hacking claim where the Claimant’s evidence lacked corroboration.  However, these claims usually require substantial technological evidence to succeed.

Sentencing and Broader Implications

Applying the principles established in Hale v Tanner, the court considered both the punitive and deterrent objectives of sentencing.  Despite the gravity of the breaches, imprisonment was deemed disproportionate given mitigating factors, including the Defendant’s lack of further breaches post-April 2023, his role as a carer for his mother, and his apology to both the Claimant and the court.  Instead, the Defendant was fined £200, payable within 12 months; consideration of his means was also taken into account.

This outcome raises serious concerns.  While the Family Court provided some measure of justice, it lacked the full range of sentencing options available to the criminal courts, such as community orders.  Moreover, the necessity of these proceedings reflects the broader failure of the criminal justice system to address domestic abuse cases in a timely manner.  As Bianca Castro noted in the Law Society Gazette, criminal court delays are forcing family courts to fill enforcement gaps, resulting in fragmented and often inadequate relief for victims.

Impact on Victims

The impact of such delays on victims is profound. For individuals like Lydia Lafronte, the prolonged uncertainty exacerbates emotional distress and undermines confidence in the legal system’s ability to provide protection.  Victims often experience heightened anxiety, fear, and a sense of helplessness when enforcement mechanisms fail to deliver timely justice. The psychological toll can be severe, affecting their mental health, stability, and overall well-being.  In many cases, delays in legal proceedings force victims to make difficult personal and financial decisions, such as relocating or seeking additional protective measures at their own expense.  These failures highlight the urgent need for systemic reforms to ensure that victims are not left vulnerable due to bureaucratic inefficiencies.

Conclusion

Lafronte v Johnson is emblematic of a growing crisis in legal enforcement.  The Family Court should not have been placed in the position of conducting quasi-criminal trials due to systemic inefficiencies elsewhere.  The judgment serves as both a warning and a call to action — urgent reforms are needed to ensure that victims of domestic abuse receive timely and effective legal protection.  Until then, justice will continue to be delayed, and for many, effectively denied.

Read full judgment here.

For any booking enquiries, please contact the clerks at clerks@halcyonchambers.com

The views stated in this article belong to the writers in a personal capacity.  No warranty is given, express or implied, in respect of the contents of this article.  Nothing in this article is tendered as or is intended to be taken as legal advice and the contents should not be construed or relied upon as legal advice.  Specialist legal advice should always be taken in every case noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute.