Category: Uncategorised

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 A contract cannot be rescinded if it has been affirmed by the innocent party with full knowledge of the facts and of his or her right to avoid (§32).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. 

by Paige Procter-Harris

A care order provides for the Local Authority to share parental responsibility with the parents of the children and the children whilst subject to a care order are ‘looked after’ children. Part 3 of the Children Act 1989 makes provisions for the duties placed upon local authorities in England for ‘looked after’ children.

In contrast the purpose of a supervision order is to ‘advise, assist and befriend the supervised children’, the Local Authority does not have parental responsibility nor the power to direct how anyone who has parental responsibility may exercise it under such an order as they do under a care order.

Factual background of Re: JW

The facts of Re JW are that three children were placed under a supervision order for the duration of care proceedings in the care of their mother. At the final hearing it was decided that all three children would remain in the mother’s care however, the Judge decided that a care order should be made rather than a supervision order, the mother of the children appealed this decision on two grounds:

1. The court was wrong to make final care orders instead of final supervision orders in circumstances where the care plans were for the children to remain at home with their mother.
2. Alternatively, in the event that the court had considered that more time was required for the mother to evidence the ending of the relationship with Mr P and/or her commitment to the proposed work, the court was wrong not to adjourn the final hearing and extend the proceedings.

Judgment of McFarlane LJ in Re: JW

McFarlane LJ in his Judgment considered the leading case law as well as the Presidents Public Law Working Group (PLWG) Guidance, whereby he further endorsed the recommendations of the PLWG and summarised them as follows:

1. a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;
2. a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of parents;
3. unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;
4. where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;
5. where a supervision order is being considered, the best practice guidance in the PLWG April 2023 report must be applied. In particular the court should require the local authority to have a Supervision Support Plan in place.

Within his Judgment McFarlane LJ also considered the Judgment of Hale J in Oxfordshire County Council v L [1998] 1 FLR 70 and Hale LJ’s approach in Re: O (Supervision Order) [2001] EWCA Civ 16; [2001] 1 FLR 923, he noted ‘Sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself, for making a care order;

vii) it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;

viii) the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;

ix) supervision orders should be made to work, where that is the proportionate form of order to make.’

In Re: JW the local authority was clear that the measures that it would take to monitor and support the family would be the same whether a care order or a supervision order was made.

Outcome of the Appeal

The Court of Appeal allowed the mother’s appeal on ground one, holding that the Judge was in error in holding that this case was exceptional and that a care order was the proportionate and necessary order to be made but rejected ground two. Supervision orders were made in respect of all three children in place of the care orders.

This Judgement reinforces that when children are to be returned to or remain placed in their parent’s care then there must be exceptional circumstances that warrant a need for a care order to be made as opposed to a supervision order that would provide the same oversight necessary for the welfare of the children.

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: Care Proceedings, Care Order, Supervision Order, McFarlane LJ, The Presidents Public Law Working Group, The Children Act 1989, Hale LJ

by Tony Muman (Deputy Head of Chambers)
and Muhammad Ul-Haq

Posted 3 February 2025

A claimant based in the EU providing international consultancy services.  A defendant with a registered office in London but otherwise part of a multi-billion-dollar global entity based in the Middle-East.  Neither has a trading presence in the UK.  The defendant’s business relates to online streaming and entertainment.  Following a dispute, the claimant instructs lawyers based in Birmingham.  The defendant corresponds through its in-house legal department.  There are no witnesses based in the UK.  The dispute relates to international broadcasting rights following a deal brokered in a third country.  The contract was negotiated and agreed by email.  The jurisdiction clause stipulates the Courts of England & Wales.  The value of the claim is substantial.  The commercial dispute has no connection to the UK.

Where does the claimant issue its claim?     

The claimant elected for the Business and Property Courts in Birmingham.  Admittedly, this was a lawyer-driven decision; the lawyers were based in Birmingham.  But it also reflected not only the legal principles but also the pride Birmingham lawyers have for their home court and the cultural and symbolic importance of  regionalisation.  It reflected the fact that the Birmingham District Registry is not lacking in capacity, technology, resources, or expertise to handle an international multi-million-pound claim.  It reflected the sentiment that high level litigation is not London-centric or reserved to the multinational firms operating in the City.  And, perhaps most of all, it reflected the fact that Birmingham offers the best after-work curry in the country (from a biased perspective!)

Post-issue, the defendant instructed solicitors based in London but with regional and international offices.  The firm’s website lists on the ‘Contact’ page under the header ‘Our Offices’ a location in Birmingham.  The defendant applied for a transfer to the Business and Property Courts of England and Wales at the Rolls Building in London on the basis that:

• The claim has more significant links to London than to Birmingham in that the defendant’s registered office and its solicitors are based in London, in contrast to the only link to Birmingham being that the claimant’s lawyers are based there;
• The defendant wishes for the case to proceed in London; and
• The international aspect of the claim and the fact that witnesses are based abroad makes it more preferable for the case to proceed in London, where there are better international transport links.

The application indicated that the defendant would notify the receiving court of the Transfer Application by letter to the issues desk of the Chancery Division at the Rolls Building; enclosing a copy of the application notice and enclosures.

The application was resisted.

The Law on Transfer Proceedings

The High Court has the power under CPR r.30.2(4) to order proceedings (or any part of them, such as a counterclaim or an application) to be transferred from:

• The Royal Courts of Justice to a District Registry
• A District Registry to the Royal Courts of Justice
• A District Registry to another District Registry

An application for a transfer from the Rolls Building to or from the B&PCs District Registry or vice versa or from one District Registry to another, must be made to the court from which the transfer is sought and must additionally be discussed with and consented to by the receiving court: PD57AA paragraph 3.1.

The power to transfer is discretionary and is exercised by the court having regard to the criteria in CPR 30.3.

In relation to transfers involving the Business and Property Courts, PD 57AA paragraph 3.1(3) provides that in addition to the criteria in CPR 30.3(2), the court must also have regard to:

• significant links between the claim and the circuit in question, considering the factors listed in paragraph 2.3(3) and (4);
• whether court resources, deployment constraints, or fairness require that the hearings (including the trial) be held in some other court than the court into which it was issued;
• the wishes of the parties, which bear special weight in the decision but may not be determinative;
• the international nature of the case, with the understanding that international cases may be more suitable for trial in centres with international transport links; and
• the availability of a judge specialising in the type of claim in question to sit in the court to which the claim is being transferred.

In relation to significant links, PD57AA paragraph 2.3(3) states a link to a particular circuit is established where—

• one or more of the parties has its address or registered office in the circuit in question (with extra weight given to the address of any non-represented parties);
• at least one of the witnesses expected to give oral evidence at trial or other hearing is located in the circuit;
• the dispute occurred in a location within the circuit;
• the dispute concerns land, goods or other assets located in the circuit; or
• the parties’ legal representatives are based in the circuit.

In Bellinger and another v Mercer Ltd and another [2014] EWHC 372 (Ch), the court was asked to transfer proceedings from the Manchester District Registry to the Royal Courts of Justice, London.  The High Court refused the application, considering it”neither necessary nor appropriate“.  In reaching its decision, the court considered the criteria for a discretionary transfer order in CPR 30.3(2).  HHJ Pelling KC took the following factors into account:

• The location of the parties’ solicitors and counsel. The judge considered the fact that counsel for the parties and the defendants’ solicitors were based in London to be nothing more than of “incidental importance“, as the claimants’ solicitors were based in Manchester.  It was likely that the claimants would have to undertake more work; this tipped the balance in favour of the case being continued in Manchester.
• The financial cost of the claim. Although the judge accepted that travel to, and accommodation in, Manchester would involve additional costs, they would be minor compared to the costs of the litigation   (He also noted that it was routine for counsel to travel between the two cities for specialist Chancery proceedings such as these.)
• The speed at which trial could be arranged, the availability of docketing, and the ability to list applications at short All these factors were in favour of keeping proceedings listed in Manchester.
• The location of witnesses for the defendants, who were said to be based predominantly near London. The judge considered that the benefit to the claimants of an earlier trial date outweighed the cost of travel and accommodation in Manchester (for a short trial), which, as he had already pointed out, would be minimal in comparison to the cost of the proceedings.

In Lumbermans Mutual Casualty Company v Bovis Lend Lease Ltd [2004] EWHC 1614, the court held that in addition to CPR 30.3(2), the transferee court should also consider the overriding objective when deciding to transfer a case or not.  This mirrors the requirement contained in CPR 1.2 which requires the court to give effect to the overriding objective when exercising any power under the rules.  The overriding objective, in particular, requires inter alia the court to put the parties on an equal footing, save expense and consider the financial position of each party.

The suitability, and indeed desirability, of keeping cases in regional B&PCs, such as Birmingham, is reflected in The Business and Property Courts of England & Wales ‘An Explanatory Statement’ dated 18th May 2017.  Co-authored by Sir Geoffrey Vos, the Chancellor of the High Court and Sir Brian Leveson, President of the Queen’s Bench Division, it states:

How will the regions benefit from the introduction of the B&PCs?

Lord Justice Briggs’ reports have consistently recommended, and the Judicial Executive Board has accepted, that no case should be too big to be tried outside London. We should be able to provide an integrated Business & Property Courts structure across England & Wales.  The aim is to achieve a critical mass of specialist judges sitting in each of the Business & Property regional centres so that all classes of case can be managed and tried in those regions.  At the moment, many such cases migrate to the Rolls Building for a multitude of inadequate reasons. Once there, they are often tried by a section 9 circuit judge from the region whence the case originated.  It should become easier to transfer regional cases back to the regions for management and trial. Waiting times are considerably less in the regional centres than they are at the Rolls Building.  In all the Business & Property Courts and Lists, a High Court judge can be provided to try an appropriate case outside London.

In Arif and others v Berkeley Burke Sipp Administration Ltd [2017] EWHC 3108 (Comm), the B&PC in Bristol consideredthe defendant’s application to transfer the claim from the Bristol District Registry to the Royal Courts of Justice in London.  HHJJonathan Russen KC, the specialist Circuit Commercial/TCC Judge at the B&PCs in Bristol, considered the guidance on transfer ofproceedings set out in the B&PCs Practice Direction and the B&PCs Advisory Note alongside the criteria set out in CPR 30.3.  His conclusion that the proceedings should remain in Bristol is consistent with the ethos, articulated by Lord Briggs and Sir Geoffrey Vos, that no case should be too big for the regions.  The judge commented that a core tenet of the B&PCs structure was to give due recognition to regional specialism and expertise.  Arif also highlights the need for detailed practical evidence to prove one venue is more convenient than another.

In circumstances where the factors each party relies on are fairly balanced, or broadly cancel one another out, the court’s established approach has been to maintain the status quo.   It is incumbent on the defendant to justify the transfer by reference to “significant factors” (plural).

In Tai Ping Carpets UK Limited v Arora Heathrow T5 Limited [2009] EWHC 2305 (TCC), the court refused to transfer proceedings in favour of the claim remaining in Birmingham.  Coulson J (as he then was):

[14] Although very many of the factors cancel each other out, I have concluded that the balance of convenience favours keeping this case in Birmingham. There are two particular matters to which I have had regard in arriving at that conclusion.

[15] First, it seems to me that, in the absence of any significant factors favouring the transfer to London, I should keep this case in Birmingham because that is what the claimant has requested. After all, it is the claimant who has gone to the trouble and expense of starting these proceedings, and it is the claimant who runs the costs risk, to the extent that its claim may ultimately be unsuccessful. These are the claimant’s proceedings and the responsibility for them rests with the claimant. If, therefore, the various other competing factors broadly cancel each other out, then it seems to me that I ought to give particular weight to the claimant’s choice of location for case management and trial.

[16] Secondly, again given the way in which the majority of factors cancel each other out in the present case, it seems to me that the court can and should have regard to the fact that inevitably, so it seems to me, proceedings which are case managed and tried in London will be more expensive than they would be if they were case managed and tried in one of the regional centres.

It is not for a claimant to justify its choice of venue in which the claim has been issued.  Equally, it is not for the claimant to persuade the court to keep the case in the regional B&PC: rather, it is for the defendant to persuade the court to transfer to London.  As HHJ Russen QC observed in Arif:

“[55] I would need to identify particular reasons why the coverage provided by the specialist business of the Bristol District Registry might be considered to be deficient for the purposes of case managing and trying these claims.”

Analysis

PD57AA section 2 (consisting of paras 2.1-2.4) falls under the hearing “Starting Proceedings”.  PD57AA section 3 (consisting of paras 3.1-3.3) falls under the heading “Transfers”.

Each section contains a self-contained sets of rules which deals with two different scenarios – one issue and the other transfer.  There is no cross-over between the two except where the rule expressly provides (for example paragraph 3.1(3)(a) on transfer cross-refers to the factors set out at paragraph 2.3(3) and (4) on issue, with the intent that when considering whether to transfer, the court can also take into account the criteria set out in the issue rule for or against transfer).  It has nothing to do with issue.

Under paragraph 2.2(1) the claimant “chooses which court… to issue its claim”.

Paragraph 2.3(1) states “the claimant must determine the appropriate location in which to issue the claim.”  To “determine” means to consider/to decide.

The choice of location is, self-evidently, for the claimant; and not to be undertaken in consultation with the defendant.  If paragraph 2.3(1) intended claimants to consult defendants before taking the decision where to issue, the draftsperson would have said so.  To suggest otherwise requires the court to read into the rule requirements which are not there.  The case law cited above talk of the claimant’s choice of venue.  If the defendant takes objection, the remedy is for it to apply for a transfer and to persuade the court to so order by reference to the transfer principles in para 3.1 of PD57AA, the Chancery Guide, and the case law.

The claimant’s choice of court is put beyond doubt by paragraph 2.5 which states “[w]hile any appropriate claim may be issued in any of the B&PCs District Registries…”.  The reference to ‘appropriate claim’ in para 2.5 is obviously not to be conflated with ‘appropriate location’ in paragraph 2.3.  What is an appropriate claim is understood by reference to the subject matter of the dispute (see paragraph 2.2).  Once a dispute which falls within the jurisdiction of the B&PCs arises (i.e., appropriate claim), it is for the claimant to determine where to issue (i.e., the appropriate location) by reference to paragraph 2.3.  The test is subjective and a matter of choice for the claimant, informed by the factors set out in the rule.  It is not open for the court to revisit the claimant’s determination of appropriate location because:

• the test is not an objective one in which the court could properly impute its own view/decision – the court does not sit in judicial review of a private citizen bringing a private law action;
• the CPR provides no mechanism in paragraph 2 to do so; and
• Paragraph 2.3 of PD57AA does not impose sanctions on a claimant for issuing in a particular court. It simply requires a claimant pre-issue to determine for itself the appropriate location which it considers for issue. It is not a brightline rule.

This is consistent with paragraph 2.5 (“While any appropriate claim may be issued in any of the B&PCs District Registries…”).  This is because the decision is a subjective one undertaken by the claimant.

Paragraph 2.3(2) mandates those claims with “significant links” to a particular circuit outside of London or the South-Eastern Circuit to be issued in that location’s B&PC District Registry.  The rule does not, in the same way, mandate that a claim with significant links to London must be issued in London.  This reflects the policy imperative behind regionalisation, which is an important factor for the court to balance.  One such example is where, by reference to paragraph 2.3(3)(e) the parties’ legal representatives are based in the circuit (“the circuit” means the particular circuit outside London or anywhere else in the South Eastern Circuit).  Properly understood, the rule prescribes that where the parties are represented by lawyers in a circuit outside of the South Eastern Circuit, then the claim must be issued in the B&PC District Registry in that circuit, and not in London.

It becomes clear that the mischief behind paragraph 2.3(2) was to direct claims to be issued in circuits outside of London.  But for paragraph 2.3(2), claims would continue to have been issued in London.  Paragraph 2.3(2) was introduced alongside the introduction of the B&PCs to kick start the principle of regionalisation (in other words, to stop claims being issued in London, as was conventional at that time).  There were similar rules introduced in public law judicial review claims with this very intention.

Unwittingly, the defendant’s submission in this case scored an own-goal.  By virtue of paragraph 3.1(3)(a), the court in deciding the Transfer Application was required to have regard to the fact that the parties’ legal representatives were both based in the Midlands Circuit.  To test the point, if the claimant was to issue its claim now based on a review of the defendant’s solicitor’s website, it could not be criticised for issuing in Birmingham (because both sets of lawyers are based in that circuit).  If it did issue in London, the claimant would be acting contrary to paragraph 2.3(3)(e) and the claim would probably be transferred from London to Birmingham by reference to paragraph 3.1(3)(a).

As stated in the cases and guidance referred to above, the following important principles emerge:

• There is only one High Court in England and
• The B&PCs in the regions have specialist judges and can deal with complex and high value cases.
• The speed at which trial could be arranged, the availability of docketing, and the ability to list applications at short notice are all factors in favour of keeping proceedings listed in the regional courts.
• Accessibility of witnesses travel into the regions is an important practical consideration.
• The benefit to the parties of an earlier trial date outweighs the cost of travel and accommodation in the regions (for a short trial), which would be minimal in comparison to the cost of the proceedings in London.
• The ethos, articulated by senior judges that no case should be too big for the regions and that a core tenet of the B&PCs structure was to give due recognition to regional specialism and expertise.

Of the potential links to Birmingham and London in this case, the only actual difference separating the parties was that the defendant’s registered office is in London.  If the defendant were an individual, CPR 26.2(1)(d), requires automatic transfer to his ‘home court’ being a place “in which the defendant resides or carries on business” (CPR 2.3(1)(b)).  The provisions regarding automatic transfer to a defendant’s home court apply only where the defendant is an individual.  The CPR draws a deliberate distinction between an individual and a company, recognising that for companies the same imperative/need/policy reasons to transfer to the individual’s home court does not apply.  Further, the automatic transfer provisions are disapplied when the claim is commenced in a specialist list (CPR 26.2(2)).

Whilst the location of the registered office meets the definition of a link under PD57AA paragraph 2.3(3)(a), it is not per se a significant link (PD 57AA paragraph 3.1(3)).

In absence of a strong justification for transfer to London, the practice is that the court will place significant weight on the claimant’s choice of venue and the obvious point that cases outside of London will be less expensive to litigate.

It is always worth emphasising that the claimant’s lawyers will be doing the heavy lifting in litigating the claim, including preparation of bundles and filing documents with the court.  The size and nature of the firm is an important factor to balance.  Regional accessibility to the High Court extends equally to High street law firms, in the same way as it does to claimants. Regionalisation across all divisions of the High Court recognises that London, and London firms, no longer have a monopoly on cases which traditionally could only be issued in the Royal Courts of Justice.  There is a public interest of constitutional importance in ensuring accessibility to justice across the regions, which the case law on transfers has long recognised.  Regional small firms may not have offices in London and would not be able to absorb the costs of setting up a temporary office in London.  Fee-earners based in the regions will be billing cases at commensurate non-London hourly rates and not able to charge London weighting if the matter was transferred to London.  Firms will be effectively billing a London case at non-London rates.  To transfer the case to London will effectively mean having to transfer the file to a London firm.

Even if the competing factors are not entirely evenly balanced and lean towards transfer to London, it is insufficient to disturb the status quo by removing a case from its current venue and depriving a claimant from its choice of venue: see Edwards-Stuart J’s observations in CFH Total Document Management Ltd v OCE UK Ltd & Anor [2010] EWHC 541 (TCC) at [29] – [31].

A Knock-out Blow

The burden is on the defendant to demonstrate (i) that it has put the receiving court on notice of the transfer application, and that the receiving court has consented to the transfer, and (ii) assuming consent has been granted if the application is contested, that the above factors clearly weigh in favour of a transfer.  The rules are clear and the court has no discretion to depart from them.

In this case, the application suggested that the defendant would notify the receiving court. The claimant was not sent a copy of any notification, and nothing was exhibited to the application.  Fundamentally, the claimant had not seen anything to suggest that the Rolls Building had been informed that the defendant’s application to transfer was contested and that the matter had been listed for hearing.  Critically, the claimant had not seen anything to suggest that the Rolls Building has consented to transfer from Birmingham to London.

At the hearing, the claimant argued that if notice had not been given, or if the Rolls Building had not been told that the Transfer Application is contested and listed for hearing, and or if consent had not been granted by the Rolls Building, the application fails procedurally and an order for transfer cannot be made (‘a knockout blow’).  Not only is this compulsory under PD57AA, but section 3.24 of the Chancery Guide 2022 (which is mirrored at paragraph 28 of the Chancellor’s Advisory Note on the Business & Property Courts dated 13 October 2017) requires the consent to accompany the application to transfer:  “…the application should be accompanied by confirmation that the applicant has obtained the consent of the receiving court…”

Paragraph 3.1(2) is unequivocal.  Before an application for an order for transfer between registries of the B&PC can be made, two things must take place.  First, alongside the application to the B&PC from which transfer is sought, the applicant must inform the intended receiving B&PC of the application (“Notification”).  Second, the application must be consented to by the receiving B&PC (“Consent”).  Notification and Consent are pre-requisites and are two distinct elements.  This is also made clear in the Chancery Guide, which stipulates that the application should be accompanied by confirmation that the applicant has obtained the consent of the receiving court.  The reason why consent is so important is that there are critical considerations relating to the intended receiving court’s capacity and resources.

The B&PC from which transfer is sought can only then go on to consider the factors at paragraph 3.1(3) once these two pre-cursor events have taken place.  This is made clear from the words “When considering whether to make an order… the court must also have regard to-…”  Also denotes in addition to the requirements in paragraph 3.1(2).

*The claim was settled by consent after the hearing but before the court handed down judgment.

Tony Muman leading Muhammad Ul-Haq acted for the claimant.

For any booking enquiries, please contact the civil clerk at civil@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 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: Transfer, District Registry, Business and Property Courts, Birmingham High Court, CPR r.30, PD57AA, Consent, Rolls Building, B&PC

Halcyon Chambers are pleased to announce the election of Tony Muman as Deputy Head of Chambers. 

Tony was called to the bar in 2001. He is a vital member of Halcyon Chambers, heading up both our Immigration and Public Law teams. 

Tony is a recognised expert in immigration, asylum, and nationality law and has appeared in cases at all levels, including the European Courts and the Supreme Court. He has received several rankings from the prestigious Chambers and Partners, as well as having received several awards throughout his distinguished career.

On Saturday 7th December, Counsel Tony Muman and our Civil Clerk, Jamie Adams, attended the Young Citizens Mock Trial Competition.

This was a brilliant opportunity for Chambers to engage with local schools in the Hertfordshire area and inspire the next generation of legal minds, alongside a judging panel including Lord Justice Males, His Honour Judge Siddiqui, His Honour Judge Godfrey, Tinessa Kaur, and Ralph Muncer.

Thank you to Rebecca Harrison from Young Citizens for reaching out to us, and Bukola Faturoti PhD, SFHEA for helping co-ordinate this. We are always happy to support events such as these, whether local or national.

Our main telephone line is currently down and our engineers are looking into re-establishing communications as soon as possible.

Should you need to contact the clerks please do so on 0121 728 0573 or via their individual contact details below.

Chris Ridley – Senior Clerk – 0121 481 2388 – cridley@halcyonchambers.com

Civil Clerk – 0121 827 9435 – civil@halcyonchambers.com

Family Clerk – 0121 481 2871 – family@halcyonchambers.com

We thank you for your patience.

Halcyon Chambers is delighted to announce that the Pupillage Application Form for candidates to complete is now live. This form, together with the Equality and Diversity Form and Consent Form, can be found on our Recruitment page.

Please read the instructions carefully and send the completed documents to pupillage@halcyonchambers.com.

Halcyon Chambers wish all candidates good luck in their applications.

All members of staff at Halcyon Chambers wish you a Merry Christmas and a Happy New Year!!

We are delighted to announce that Tony Muman continues to be ranked in both Administrative/Public Law ad Immigration Law in the prestigious Chambers and Partners Bar Guide 2025.

Following the successful year for our Family Team last year, Chambers is also very proud to announce that Edward Pearce has joined both Jonathan Bott and Thomas Green in achieving their rankings for their work in Family and Children.

Article by Paige Procter-Harris

The Family Court at Birmingham has been selected for the new Pathfinder Pilot.

This was introduced on 28 May 2024, it is a reformed approach to private law children proceedings. The scheme was initially piloted in Dorset and North Wales in March 2022, which has now expanded to Birmingham.

The details of the new Pathfinder Pilot are contained within Practice Direction 36Z of the Family Procedure Rules. To summarise, the purpose of the pathfinder approach is to assess the use of new practices and procedures, by following a revised court process.

The revised process has been designed with a focus on improving the experience of the family court for all court users, particularly survivors of domestic abuse, litigants in person and the children that are at the centre of these applications, by seeking to hear the voice of the child more clearly through each case.

The pilot seeks to use a more investigative approach, which features earlier gatekeeping and information gathering to enable earlier resolution of proceedings, as well as reducing the number of cases coming back to court. This allows for the reduction of costs to the parties and a quicker resolution, thereby avoiding the prolonged stresses of proceedings for all involved.

The aim is for a more holistic, multi-agency approach, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities.

Family practitioners will be aware of the usual processes, however, to compare the two:

Cases that started before 28 May 2024 will continue to follow the existing procedure as follows:

1. Unless a party qualifies for an exemption, both must attend a Mediation, Information and Assessment Meeting (MIAM)
2. Filing of the C100 form
3. The application is picked up and directions are given for Cafcass to prepare a safeguarding letter, and a first hearing is listed within 6-8 weeks
4. Court hearing 1 – First Hearing Dispute Resolution Appointment (FHDRA)

If a section 7 report is ordered at the FHDRA, this can take up to 12 weeks to complete.

1. Court hearing 2 – Dispute Resolution Appointment (DRA)
2. Court hearing 3 – Final Hearing (if necessary)

The process for the Pathfinder scheme is as follows:

Cases started after 28 May 2024 will follow the new procedure:

1. Unless a party qualifies for an exemption, both must attend a Mediation, Information and Assessment Meeting (MIAM)
2. Filing of the C100 form
3. The application is picked up within 48 hours and directions are given for Cafcass to prepare a Child Impact Report (CIR) within 40 days (this replaces the safeguarding letter and section 7 report) providing for a more comprehensive report in a shorter time frame which allows for quicker decision making
4. Gatekeeping / case management appointment where the court determines the next steps and whether a hearing is necessary (parties do not attend this appointment)
5. Decision hearing (if deemed necessary and this can be effective as a final hearing)
6. Review hearing (means of assessing how the order is working in practise)

The difference in the approaches is clear, with the pilot there is an aim of more helpful information being gathered at an earlier stage and with fewer hearings, with a view of early and effective resolution.

It is evident that with this pilot scheme there will be a divide amongst practitioners as to whether this approach is more effective than the standard process. As this pilot scheme is tested it will become clearer as to whether this is the best way forward to revolutionise private law children proceedings.

It is noted that during The Nuffield Family Justice Observatory webinar in April 2023 HHJ Lloyd and HHJ Simmons expressed their views of the pilot scheme, stating that it is a much more supportive process for victims of domestic abuse and allows parents to reframe their mindset when thinking about the best arrangements for their children in these proceedings, therefore it appears they have taken a positive overview of the scheme.

Halcyon Chambers are delighted to announce that former member of Chambers Mr Joseph Neville has been appointed by the King as Judge of the Upper Tribunal on the advice of the Lord Chancellor, the Right Honourable Alex Chalk KC MP and the Senior President of Tribunals, the Right Honourable Sir Keith Lindblom.

Upper Tribunal Judge Neville has been assigned to the Immigration and Asylum Chamber with effect from 8 July 2024.

Judge Neville was called to the Bar (Lincoln’s Inn) in 2007.   He practiced at Halcyon Chambers (formerly 43 Temple Row) for a number of years  before being appointed appointed as a Salaried Judge of the First-tier Tribunal, Immigration and Asylum Chamber in 2018.  Judge Neville is also an appointed Recorder in the civil jurisdiction on the Midland Circuit.

Halcyon Chambers sincerely congratulates Upper Tribunal Judge Neville on his appointment.