Halcyon Chambers Welcomes Rose Oliver

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

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

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

Success for Halcyon Chambers Pupils

 

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

 

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

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

Article by Naomh Gibson

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

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

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

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

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

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

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

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

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

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

Article by Naomh Gibson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Revised admissions appeals procedure approved

Article by Naomh Gibson

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

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

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

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

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

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

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

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

Article by Naomh Gibson

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

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

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

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

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

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

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

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

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

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

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

Admissions appeals still going ahead subject to revised procedure

Article by Naomh Gibson

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

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

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

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

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

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

The process therefore will be revised as follows:-

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

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

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

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

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

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

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

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

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

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

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

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

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

Can a civil injunction stop me protesting?

Article by Tony Muman and Naomh Gibson

The United Kingdom has a proud history of protest movements, from the Suffragette marches of the early 1900’s, to the Northern Irish civil rights movement in the 1960’s, to the more recent anti-Iraq war protests in 2003 and last year’s People’s Vote march. Whether in protest against a rogue State (or a visiting President) or against unethical practices employed by private companies, the individual or collective right to hold actors to account through lawful protest is one of the most fundamental rights that we hold dear in a democratic society, and rightly should be cherished.

Everyone’s human right to protest is protected by the European Convention of Human Rights: freedom of thought, conscience and religion (Article 9), freedom of expression and speech (Article 10), and peaceful assembly and freedom of association (Article 11), often referred to as ‘Convention rights’. Our Human Rights Act 1998 enshrines in UK law most Convention rights and makes it unlawful for the government or any public authority to act contrary to them unless it can be proved that the interference is lawful. This often requires considering whether the interference was both necessary and proportionate, and balancing that need against the conduct of the protesting parties.

In what has been dubbed ‘the Birmingham School case’, useful guidance has given by the High Court on how this balancing act plays out for both named and unidentified protestors (also referred to as ‘Persons Unknown’). This article summarises the key principles in respect of both. The case received international coverage, some of which can be found here.

The defendants in this case were represented by the Halcyon Public Law team, who are experts in civil injunctions.

Ramby de Mello and Tony Muman acted for the First to Third Defendants, with the assistance of Muhammad Ul-Haq. Paul Diamond and Thomas Green acted for the Fifth Defendant.

If you are concerned about restrictions on your ability to lawfully protest, or would like further information about this case, please contact the Clerks.

‘The Birmingham School case’

In November 2019, the High Court heard over a five-day trial a test case for civil injunctions to restrict street protests and to prohibit online abuse of teachers at Anderton Park Infant and Junior School in Birmingham. Many of the protestors were parents who were opposed to the School’s decision to educate its pupils, their children, on “LGBT issues”. The School is maintained by the claimant local authority, Birmingham City Council, who applied for the injunctions against the five defendants.

A civil injunction may be granted where the Court is satisfied that an individual has engaged in, or threatens to engage in, conduct capable of causing nuisance and annoyance. If an injunction is granted, engaging in the behaviour prohibited by the injunction can result in the person restrained receiving a fine or at worst, a prison sentence for contempt of court. Before an injunction is made final, an interim injunction will usually be imposed before the final trial of the application is heard where there is a sufficiently real and imminent risk of misconduct before the final trial.

The local authority first brought the claim against four named defendants. Defendants 1-3 could be identified and were characterised in the claim as being the “ring-leaders” of the street protests. They each belonged to the Muslim faith and were opposed to what they saw as the School’s agenda on the basis that it amounted to unlawful discrimination on grounds of ethnicity and/or religion, contrary to the Equality Act 2010, and was a failure to comply with the requirement in the Education Act 1996 to have regard to parental wishes, in that there was a lack of any proper consultation. The second defendant had two children at the School and was concerned about what they were being taught, she said without her consent or consultation, and how the teaching of LGBT might cause confusion for her children given the direct conflict with the family’s religious beliefs.

The fourth defendant to the claim was named as “Persons Unknown”, the scope of which referred to any other protestor not specifically named (i.e. the whole world) with the ultimate intention of preventing anyone else from taking part in protests organised by the first to third defendants within the exclusion zone in ways that would be prohibited.

The fifth defendant was an online Christian activist who later asked to be joined to the proceedings to represent why the claimant’s proposed curtailment on freedom of speech using social media was unlawful and conflicted with his own religious beliefs.

Before the trial, Warby J heard submissions on whether the interim injunctions should continue against each of the named protestors and “Persons Unknown”. He concluded that the defendants’ application for discharge of the existing injunctions should be granted, on the grounds of the local authority’s failures to comply with the duty of full and frank disclosure owed by those who seek injunctions without giving notice to other parties. But he did agree on the local authority’s application to issue fresh interim injunctions against the defendants so that protection remained in place pending trial.

The first judgment dated 26 November 2019 can be read in full here.

Named Protestors>

The claimant made several allegations against each of the first three defendants about the way in which the regular protests outside the School amounted to nuisance and disruption, and how the online abuse of teachers on social media was unacceptable. Through the injunction the claimant sought to restrict the way in which the protests were carried on, including where the protests could take place identifying an exclusion zone around the School which defendants 1-3 were not permitted to enter, except for certain reasons. The injunction was not about restricting what the defendants could say or the subject matter of the protest.

Having heard the evidence Warby J found the allegations against the first three defendants proven and ordered that the interim injunctions against each of the three be made final. In summary, he found that that council had the relevant powers to bring the claim for an injunction, that its reasons for doing do were legitimate and lawful and did not amount to discriminatory treatment contrary to the Equality Act 2010, and that the first three defendants were responsible for the most extreme manifestations of the way in which the protests were carried out. He concluded that the restrictions sought by the council in the injunctions would have the effect of preventing the repeat of the unlawful behaviour and therefore would be a permissible interference with the defendants’ Convention Rights.

In the case of the first defendant, the sole excepted purpose is to enter a specified mosque, from a specified road. The injunction against the second defendant contains the same exception, and two more: taking her children to the School, or collecting them, or for any pre-arranged meeting at the School. In addition to a restriction on entering the exclusion zone, the defendants are ordered not to organise, engage in, or encourage any other person to engage in any protest against teaching at the School within the zone, including by distributing leaflets, and restrained from approaching, contacting or attempt to contacting any member of staff of the School, or any person who supports the local authority’s case.

An application for permission to appeal to the Court of Appeal is pending.

What about social media?

The claimant also sought to injunct the use of social media to offend or ‘abuse’ teachers. The local authority’s case was there was unacceptable abuse of teachers on social media via a closed WhatsApp parent’s group and the first defendant’s Twitter account. At trial it became apparent that the local authority and the teachers only came to know of the WhatsApp group through “leaks” from one or more group members.

The Court did not continue the injunction restraining abusive statements on social media and made no injunction against Mr Allman (the fifth defendant), who succeeded in resisting the imposition of any further restriction on his freedom of speech as an online blogger.  The learned Judge ruled that the local authority had failed to present a sufficiently compelling case that there was a pressing social need for a restriction on what was said via social media.

Whilst dealing comprehensively with the conduct of the named protestors, the judgment left open the more difficult question as to who should be included within the definition of “Persons Unknown”, and, if they could be made subject to an injunction, what sort of restrictions could be imposed on such individuals.

This novel attempt to restrain what is said via social media on the internet was a daunting challenge for the claimant local authority, which in the end, rightly, failed. Such applications raise complex points of law, including questions of jurisdiction, which despite being raised in this case for the first time remain unanswered.

Persons Unknown

At the interim hearing before trial, Warby J expressed serious reservation about the lawful inclusion of the fourth defendant (“Persons Unknown”) in the local authority’s case, because of the incredibly broad nature of such a class which would effectively result in an order against the entire world, including the Judge himself, and thus varied the fourth defendant to being “Persons Unknown seeking to express opinions about the teaching at the School”. The interim judgment dated 10 June 2019 can be read in full here.

Despite the soundings at the interim hearing, the claimant maintained its claim against the fourth defendant. Following trial, the learned Judge invited further submissions from the parties as to whether an injunction could properly be made final against “Persons Unknown”.

On 5 March 2020 a decision was handed down by the Court of Appeal in the case of Canada Goose (full decision available here).

Canada Goose is an international retail clothing company which sells luxury winter products manufactured using animal products including fur and/or down. In November 2017, Canada Goose opened a store on Regent Street in London which became the subject of demonstrations by animal rights activists such as Surge, PETA, and other activist groups, who largely organised online.

On the store’s opening morning, dozens of protesters gathered outside the shop holding posters with slogans reading “fur is murder”, “blood on your hands” and “is your vanity worth your suffering?” This continued into a two-year long protest with approximately three demonstrations a week, resulting in legal proceedings when Canada Goose attempted to obtain a final injunction against the “Persons Unknown” protestors.

The High Court declined to grant a final injunction against these unidentified protestors. This is because a basic norm of civil litigation is that a final injunction operates only between the parties to the proceedings, once that injunction has been ‘served’ on them. ‘Service’ refers to how a document is given to another party. If a document is not ‘served’ correctly then it cannot take effect, it will be as if the document did not exist or the other party had never heard of it. For example, unless a party explicitly gives you consent to send something to them by email or fax, you cannot electronically serve on them. Part 6 of the Civil Procedure Rules (usually referred to as ‘CPR’ or ‘the CPR’) outlines the basic requirements for service in civil proceedings (here).

If “Persons Unknown” are not identified, they cannot be added to the proceedings and further cannot be served upon by any of the required CPR 6 methods. A claimant who wants an interim injunction to take effect against “Persons Unknown” must take all reasonable steps to identify them and add these individuals as parties to the proceedings, and then serve on them in line with CPR 6.

The “Persons Unknown” defendant must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary, by alternative service such as can reasonably be expected to bring the proceedings to their attention.

Canada Goose appealed to the Court of Appeal who dismissed their case, ruling that the description of the “Persons Unknown” respondents was too broad as, in its original form, it was capable of including protesters who might never even intend to visit the store. Moreover, both in the interim injunctions and in its proposed final form, the injunction was capable of affecting persons who might not carry out any unlawful activity as some of the prohibited acts would not be or might not be unlawful.

Notwithstanding this clarification of the relevant law, the claimant unperturbed still pressed the Court to extend its injunction against the fourth defendant. To assist the Court, defendants 1-3 and defendant 5 resisted the application on principle, arguing that the key document in the Claimant’s case which must set out the factual and legal basis for their claim, the Particulars of Claim, did not adequately define the target group; and that it was abusive to sue “Persons Unknown” when the individuals whom the claimant truly wished to sue were identifiable, as they did not wear disguise when protesting, and could have been identified and joined by name, had reasonable steps to do so been taken.

In his second judgment, Warby J refused to grant a final injunction against “Persons Unknown” and accordingly dismissed the claim against the fourth defendant. While there are very limited circumstances in which “Persons Unknown” can have a final injunction take effect against them, in line with Canada Goose, the learned Judge held that protester actions do not fall within exceptional category. This is because the facility to sue individuals anonymously as “Persons Unknown” is a significant departure from one of the fundamental tenants of civil litigation and must therefore be carefully restrained.

Further, it is another fundamental tenant of civil litigation that the claimant must ‘make the running’, i.e. prove their case as they have set it out in their pleadings, also known as statements of case. The claimant must do this on the balance of probabilities, by satisfying the Court their version of events is more likely than not.

In addition, a claimant cannot be allowed to claim there has been misconduct by “Persons Unknown” because this is a transient, ever-changing group of people and results in moving goalposts; unlawful acts by those outside of an activist movement assumed to be a part of the movement might result in the entire movement being restrained by an injunction.

The result of Canada Goose, as applied in the Birmingham School case, is that the claimant must tie their colours to the mast and identify specific individuals, and say clearly what those individuals have allegedly done which amounts to serious misconduct requiring an injunction.

The second judgment dated 8 April 2020 can be read in full here.

Conclusion

In this case, using its full resource, the local authority was able to demonstrate evidentially that the conduct of the first three defendants at their regular protests was unlawful and caused distress and harassment to teaching staff, pupils and local-residents. It was this behaviour (and not what was said or the subject-matter of the protest) that ultimately justified the Court’s interference with the defendants’ Convention Rights. That is not something lightly done, but here the need to curtail the illegality of the protests was the pressing need which allowed the Court to make final the injunctions preventing the first three defendants from protesting outside the School and in the manner in which they were doing do (use of amplification devices, speakers etc.)

The Court rejected the defences based on the Equality Act and the defendants’ religious convictions. This aspect of the case may well be the subject of further deliberation by the Court of Appeal.

Although the Court rejected the claim against the fourth defendant (“Persons Unknown”) predictably the restriction against the first three defendants will lead to the cessation of similar protestors by third parties in the exclusion zone. If not, the local authority will have to take steps to identify who the new protestors are and apply for identical injunctions against them.

The key therefore is to maintain good, lawful and structured protest in an organised and controlled manner. Specificity is needed both in respect of what is being protested about – which in turn affects how the protest manifests – and in the response to protest by claimants seeking to restrain this fundamental right through injunctive relief. Of course, some protest by its very nature is meant to be loud and disruptive. Feelings and emotions often run high, not least where the issues relate to parental choice and conviction of religion. But repetitive and concerted behaviour which is unlawful no matter how emotive the subject matter is likely to fall foul of any application for civil injunction, as shown in this case.

One feature of the School protests was the failure to prevent the wild rant of a third party who had travelled to Birmingham to attend the protests. Conversely though, the identity of the ranting individual was known to the claimant local authority and he should have been included by name to the case. This is an example of how the failure to do so in the hope that such persons can be caught by the catch-all “Persons Unknown” group is impermissible.

The second judgment has provided strong and welcome guidance for those seeking to resist draconian “Persons Unknown” blanket civil injunctions. Injunctions or Section 14 Orders (Public Order Act 1986) effectively banning groups from protesting in a wide locale should always be anxiously scrutinised to ensure compliance with the Canada Goose principles. Injunctions with excessive breadth are the kind of powers that public authorities like to wield but must now avoid. An individual with only a passing association with a protesting group may face being caught in the net of a section 14 Order, the effect of which would be an unacceptable curtailment of their individual Convention rights.

As to restrictions on what can and cannot be said on the internet using the platform of social media, the Court wisely rowed away from this issue, which survives for another day. There are strong defences available which raised untested and challenge principles of law.

The defendants in this case were represented by the Halcyon Public Law team, who are experts in civil injunctions.

Ramby de Mello and Tony Muman acted for the First to Third Defendants, with the assistance of Muhammad Ul-Haq. Paul Diamond and Thomas Green acted for the Fifth Defendant.

If you are concerned about restrictions on your ability to lawfully protest, or would like further information about this case, please contact the Clerks.

Is a handed-down judgment always final?

Article by Tony Muman and Naomh Gibson

It is common practice in civil litigation following a trial of the issues for the Court to formally reserve judgment and to later release confidentially to the parties and their legal representatives a draft and invite assistance in identifying any editorial corrections before it is formally published and made available to the public: Practice Direction 40E of the Civil Procedure Rules.

Publication of the judgment often follows a procedure referred to as ‘hand-down’, usually done at a short hearing at which the parties do not need to attend. The expectation is that between circulation of the draft judgment and its formal hand-down, the parties will have agreed all consequential matters and drafted an order for the Court’s approval. The sealed order usually follows the ‘hand-down’.

A useful example of the ‘hand-down’ process can be viewed on the Supreme Court’s website.

The header of most draft judgments will record in standard form:

“This is a judgment to which the Practice Direction supplementing CPR Part 40 applies. It will be handed down on **** at 10:30 in Court No ****. This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved. No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court. The official version of the judgment will be available from the Courts Recording and Transcription Unit of the Royal Courts of Justice once it has been approved by the judge.

The court is likely to wish to hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (Nil returns are required) to the clerk to ****, via email at **** @justice.gov.uk, by 4:00pm on ****, so that changes can be incorporated, if the judge accepts them, in the handed down judgment.”

But what happens in the curious situation where the Court having reached a finding of fact in the draft trial judgment, circulated in accordance with the above practice, receives by return suggestions for amendments and in the exercise of its discretion removes from the final judgment said finding, to the discontent of a party who subsequently applies for reinstatement to the judgment the excised part complaining that the handed-down judgment is in different form to the draft.

In Birmingham City Council v Afsar and Ors [2020] EWHC 864 (QB) (here), Mr Justice Warby provided some illumination to this very issue.

Analytically, the learned Judge considered the claimant’s “reinstatement” application to be one of “waiver”. What the local authority was seeking to do was to waive confidentiality relating to that part of the (private) draft judgment which was omitted from the final (public) handed-down judgment. The claimant argued that the removed passage might be relevant to a possible appeal that it might want to bring and should not have been excised because it was “not really the sort of editorial correction that would normally be included in a return to a draft judgment”.

Unsurprisingly, the application was resisted on the following grounds:

(1) Until an order is sealed, the Judge has a discretion to alter a judgment, but this should not be done save in “exceptional circumstances”, or (perhaps an acceptable alternative) where there are “strong reasons”: In re Barrell Enterprises [1973] 1 WLR 19, 23 (Russell LJ), Compagnie Noga d’Importation et d’Exportation SA v Abacha (No 2) [2001] 3 All ER 513 [43] (Rix LJ).

(2) The exercise of the discretion should be even rarer after the delivery of a written reserved judgment, compared to an extempore judgment, or one that has remained in draft: Stewart v Engel (Permission to amend) [2000] 1 WLR 2268, 2276A (Sir Christopher Slade), Robinson v Fernsby [2003] EWCA Civ 1820 [98] (May LJ) and [113] (Mance LJ).

(3) Here, the claimant failed to show that the case is exceptional or that there are any strong reasons for granting its application. The judgment is complete and sufficient; there is no need for additional findings. Nothing turns on the draft finding of fact. It is not explained how it might be relevant to an appeal.

(4) A number of other factors count against the exercise of the discretion in the claimant’s favour. These included the facts that the draft was circulated in confidence, with the potential for sanctions in the event of disclosure, as the rubric shows. The claimant failed to raise any complaint when the judgment was delivered, and have delayed for months before making this application.

(5) There was an ulterior purpose to the application, which is an abuse.

(6) The contents of the finding in question should not be brought into Court even if the application is granted.

Warby J’s reasoning for dismissing the application overlapped with but were not the same as those relied upon by the defendants. Whilst noting the instructive statements of principle arising from each of the aforementioned authorities – including the reminder in Robinson v Fernsby at [86], that “[t]he judge … did not … alter a judgment that had been given” – he distinguished the applications in each of those cases to the very different application that he had to decide. In none of those cases was there an application such as the waiver application here: to vary or amend a judgment that had been handed down, after circulation of a draft and representations about the draft, and certainly not after the Court had made a final Order pursuant to the handed-down judgment.

He reminded himself of the main principles from Robinson v Fernsby:

(1) The introduction of the CPR did not affect the long-settled principle that a judge has power to recall, reconsider and alter an order made after he had given judgment at any time before the order is drawn up and sealed: [76], [78-82], [113], [120].

(2) The exercise of the jurisdiction generally requires exceptional circumstances or strong reasons, though there may be circumstances in which it must be exercised in the interests of justice: [83-86], [113], [120].

(3) Those criteria apply to the alteration of a draft judgment which has been circulated to the parties before being handed down: [96].

(4) The same criteria apply, with greater force, where the judgment is a formal written judgment in final form handed down after the parties have been given the opportunity to consider it and make representations on the draft; there are obvious reasons – including the desirability of finality – why the court should hesitate long and hard before making a material alteration to such a judgment: [80], [94].

(5) The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case: [96].

(6) The decision in a particular case is an exercise of judicial discretion which will only be interfered with on appeal on the usual grounds for discharging a discretionary decision: [98].

The learned Judge rejected as “far too broad” the claimant’s submission that the Court was under a duty to reinstate any omitted passage which might be relied upon by the disadvantaged party in any future appeal. Whilst the interests of justice is always the driving factor, here as pointed out by the defendants there was no indication that the claimant intended to appeal, and it was difficult to see how the omitted part of the judgment would have assisted in an appeal in any event.

The claimant, correctly, did not suggest, and the Judge did not find, that the excise of that part of the draft judgment was wrong in principle. The learned Judge reminded himself that his decision to edit the draft judgment in the manner suggested was one which fell within the Court’s discretion and that he had removed a passage which he considered was not necessary to his decision and therefore better to be omitted.

Applying what he described as the “least stringent test”, the Judge considered that the claimant had failed to show exceptional circumstances or strong grounds as to why he should revoke his earlier decision.

Warby J however necessarily went further, placing reliance on the principle in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd & ors intervening) [2010] EWCA Civ 158[2011] QB 218. The facts in Mohamed are immaterial to the issue although the principles are summarised as:

(1) A judge is not bound by the terms of a draft judgment that has been circulated in confidence. The primary purpose of the practice is to enable any typographical or similar errors to be notified to the court, but on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft: [4].

(2) Draft judgments circulated in accordance with the standard practice are confidential as are the observations and submissions of the parties about the draft judgments: [11].

(3) The minimum requirement before wider circulation of the draft would be permissible is an application to the court for the confidentiality principle or understanding to be reviewed in the context of the individual case: [11].

(4) Tempting though it would be “to declare that the confidentiality principle as it applies to draft judgments should never be waived … adamantine rigidity of this kind would fail to allow for cases of high exceptionality”: [13].

On the basis therefore that the claimant’s application was for the waiver of confidentiality in part of the draft judgment; the application was made after the judgment had been handed down, and a final order had been made; the test to be satisfied is one of “high exceptionality”, or at least as stringent as the one identified in Robertson v Fernsby. That test was not satisfied in this case.

The defendants in this case were represented by the Halcyon Public Law team.
Ramby de Mello and Tony Muman (instructed by J.M. Wilson Solicitors) acted for the First to Third Defendants. Paul Diamond and Thomas Green acted for the Fifth Defendant.

For any enquiries please contact the Clerks.

Domestic abuse and the COVID-19 lockdown

Article by Emma Weaver

The world is currently in the midst of a pandemic and many countries have taken steps to try and reduce the spread of COVID-19. The UK has similarly followed suit when the Prime Minister announced a minimum 3-week lockdown commencing 23rd March 2020. Those who are deemed to be in the vulnerable category should have already been self-isolating and are expected to self-isolate for 12 weeks. Effectively, those who are not key workers or can work from home are expected to remain in their homes for the duration of the lockdown. There are some exceptions to this such as one form of exercise per day.

How does this affect those who are victims of domestic abuse?

Prior to the UK being placed in lockdown many other countries had already taken this step and there are worldwide reports that the number of domestic abuse incidents have increased. For example, it is reported that this had increased threefold in one county in China. Unfortunately, the UK is no exception to these statistics with a number of police forces already reporting an increase in domestic abuse incidents.

Those who are the victims of domestic abuse will no doubt feel trapped in their own home. There may have been some respite for the victims if the perpetrator worked outside of the home. However, where the perpetrator now has the ability to work from home, the victim will constantly be faced with their abuser.

What can be done to protect victims of domestic abuse during the lockdown?

The Home Secretary, Priti Patel, has stated that victims of domestic abuse can leave their homes to seek refuge and/or report domestic abuse; this will not be deemed a breach of the current lockdown rules. It is reported that refuges remain open in these uncertain times to provide help and shelter to victims as does The National Domestic Abuse Helpline.

Furthermore, a number of courts remain open or staffed to enable victims to make applications to the court. Where a victim’s local court centre is not open, advice should be sought from the court before making an application. Victims can therefore, continue to apply for a non-molestation order and/or an occupation order. This can be done in person (where the facilities remain available) or via email. Such applications are currently defined as urgent. Accordingly, the courts will continue to deal with them, if the particular court centre is open or staffed. This will also include the return hearing. However, it should be noted that the courts have always been wary in making an occupation order where the respondent does not have notice of the application.

In line with the President of the Family Division’s Guidance published on 19th March 2020, (The President’s Guidance can be found here) all hearings are expected to be dealt with remotely including urgent hearings. Where this is not possible, the court will endeavour to list a ‘face-to-face’ hearing. Remote hearings may cause some litigants in person difficulties in they do not have the technology required to conduct these hearings or do not know how to use said technology. Face-to-face hearings may also put those in the vulnerable category at risk, if they have to leave their home to attend a hearing.

A number of firms of solicitors also remain open as they are able to work remotely. This enables victims to seek legal advice on what they can do to protect themselves from domestic abuse. The police are of course available for the victim’s immediate protection, if necessary.

What can Halcyon Chambers do to help?

The family team have a number of years’ experience between them in domestic abuse cases and approach such cases with the sensitivity that is required whilst taking a robust approach in the court to ensure that the best outcome for the client is achieved. The members of the family team are available to take instructions from both solicitors and from the client directly (for those who undertake direct access work) during the ongoing pandemic. The pandemic should not be a bar to the delivery of justice.

Law in the time of COVID-19: Changes to wrongful trading laws

Article by Naomh Gibson

Wrongful trading is a statutory offence under Section 214 and Section 246ZB of the Insolvency Act 1986. Once Company Directors conclude – or should have concluded – that there is no reasonable prospect of the Company avoiding an insolvent liquidation or, in relation to business conducted on or after 1 October 2015, insolvent administration, they have a duty to take every step which a reasonably diligent person would take to minimise potential loss to the Company’s creditors.

If a Director fails to comply with this duty, the Court can order the Director to make such contribution to the Company’s assets as it thinks proper. However, on 28 March 2020 the Government announced it would introduce new insolvency measures to prevent businesses unable to meet debts due to the impact of COVID-19 from being forced to file for bankruptcy.

The move will allow Directors to pay staff and suppliers, even if there are fears the Company could become insolvent. This is a very real concern for Directors and a suspension of this potential liability will take some of the risk away when deciding whether to continue trading through this period.

The temporary suspension takes force retrospectively from 1 March 2020 for a period of 3 months. All other checks and balances to ensure directors continue to fulfil their legal duties and obligations will remain in place, including those relating to fraud, misfeasance, and the threat of Director disqualification. As such, Directors should continue to seek advice on how to record their decision making throughout this period.

In addition to the temporary suspension of wrongful trading provisions, the new measures also include:

  • Permitting Companies who are required by law to hold AGMs to hold them remotely, or where this is not possible, postpone them without sanction, or hold them in-person. Any in-person AGMs will still have to comply with social distancing protocols but will not be considered ‘gatherings’ so as to fall foul of new restrictions;
  • A moratorium for businesses undergoing a restructuring process, during which time they cannot be put into administration by creditors and will continue to be able to access all raw materials;
  • New restructuring plans to bind and safeguard creditors and supplies, to ensure that they are being paid while a solution is sought.  

The new Restructuring Moratorium may be an essential tool for some of these businesses who need extra time to work out a temporary solution to their cash flow issues. Previous consultations have suggested that the Restructuring Moratorium will be modelled on the existing Administration Moratorium and triggered by an out-of-court filing.

The Government states that it intends to introduce the legislation at the earliest opportunity and may extend any of the above measures as necessary, depending on the development of the pandemic. The overriding objective will be to help companies to keep trading.

Other changes to ease the burden of regulation on Companies during this challenging time have already been introduced. On 25 March 2020, Companies House announced that Companies affected by COVID-19 can apply for a 3-month extension for filing their annual accounts. Applications for the extension can be made through a fast-tracked online system (here) and will be treated with latitude where issues around COVID-19 are cited in support. An application for the extension must be made before the company’s filing deadline.

Zambrano Carers and Human Rights: HOME OFFICE POLICY UNLAWFUL

Article by Naomh Gibson

Introduction

On 30 January 2020 and having heard a number of test cases, Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled that a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR. The upshot is that the novel concept set out in Home Office policy that a Zambrano carer must first make an unsuccessful fee-paid human rights application before an application under the 2016 Regulations can be submitted is unlawful.

Judge Neville also held that the EU Treaties do not demand an applicant be entitled to a permanent right of residence after living continuously in the UK for a period of five years as Zambrano carers. It was held that a Zambrano right of residence is impermanent by its very nature, and that once the compulsion to follow the third country national (‘TCN’) falls away, there is no basis upon which the British citizen is deprived of his rights under the EU Treaties by the TCN’s removal.

This second issue is the subject of an on-going appeal to the Upper Tribunal. The Secretary of State elected not to appeal the finding on the first issue. The indication from senior sources is that the policy will now be subject to amendment giving effect to the FtT’s ruling.

Ramby de Mello and Tony Muman acted for the lead test appellants.

Background

It came to attention of David Tang & Co solicitors that in several of their appeal cases there was a recurring issue, summarised in the appeal as follows:

Where the Secretary of State accepts:

  1. That the appellant is the primary carer for a British citizen child; and
  2. That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period…

Is it in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child? (Issue 1)

Exceptionally, exercising its general case management powers, the FtT agreed to consider this issue discretely as a preliminary issue.

The FtT also agreed to decide on a second matter as a preliminary issue, namely:

Where an appellant has spent five years living continuously in the UK with a derivative right of residence, have they acquired a permanent right of residence akin to that set out at Reg. 15 of the 2016 Regulations? (Issue 2)

Issue 1

It was common ground that each appellant was not an exempt person as defined by Reg. 10(7A) of the 2016 Regulations and met each of the criteria at Reg. 10(5). However, the applications for derivative residence cards were refused by the Home Office, on the basis that there is significant overlap with the right to respect for private and family life which is protected by Article 8 ECHR, and so an appellant who wishes to remain in the UK on the basis of family life with a British citizen ought to first make an application for leave to remain under Appendix FM to the Immigration Rules.

The Secretary of State reasoned that a derivative right to reside is a right of last resort which only applies if a person has no other means to remain lawfully in the UK. In doing so, she sought to gain assistance from the Court of Appeal judgment in Patel v SSHD [2017] EWCA Civ 2028).

This would mean that a Zambrano application must be refused if the applicant:

  • has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available;
  • has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.

Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FtT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ [28].

The FtT agreed that Patel, properly read, offers no support for either proposition. The judge ruled that the Respondent’s guidance contained legal principles which were ‘unsupported by, and in some cases completely at odds with, previous authority’ [46].

This is because Zambrano is concerned with the circumstances in which a TCN will have a right of residence under EU law, and in particular Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’):

  1. 1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
  2. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

    a) the right to move and reside freely within the territory of the member states; …

Therefore, the obligation and the jurisdiction to grant residence follows Art.20.There was thus a distinct separation between EU law, and other provisions such as the ECHR, to form ‘two sources of protection’ [32]. In the learned judge’s opinion, the correct approach to take in determining Issue 1 was as follows:-

  1. Is there a derivative right of residence as defined by Zambrano? If not;
  2. Would removal be contrary to the right for respect for the TCN’s family and private life afforded by Article 8 ECHR?

As such, the Respondent’s guidance (and their application of their guidance) erred in law as it is predicated on testing whether the TCN is being compelled to leave the EU, rather than testing what would happen if he or she were so compelled.

Issue 2

Some of the appellants argued that after living continuously in the UK for 5 years pursuant to a Zambrano right of residence, they had automatically acquired a right of permanent residence – contrary to the current regulations – on the basis of EU Treaties. This was a novel proposition which had not been directly explored in any previous authority.

This proposition was based on Article 21(1) TFEU, which provides:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

As per Lounes (Citizenship of the Union : Border checks : Judgment) [2017] EUECJ C165/16, [58], it was argued that it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.

It was submitted on behalf of the appellants that this ought to include the ability to build a family life with a TCN partner by the means of a derived right of residence to that spouse.

However, the FtT did not accept this part of the appellants’ case. While it was accepted that there was ‘some force’ in these arguments [57], there was no authority explicitly providing for the Directive to be applied ‘by analogy’ to Zambrano carers.

Ultimately, the appellants faced an insurmountable hurdle in that entitlement to a permanent right of residence by the TCN does nothing to fulfil the objectives of the TFEU; refusing to provide a right of permanent residence to a Zambrano carer after five years’ continuous residence as such does nothing to “[deprive a] Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status” nor “interfere, in particular, with a Union citizen’s freedom of movement”.

An example was given of a TCN who is the sole primary carer of a British citizen child who would be compelled to follow her outside the EU if she were removed. If this TCN was given leave in another Member State, then the Secretary of State could justifiably argue that the Zambrano right falls away as the UK would not be interfering with the child’s enjoyment of EU citizenship.

Conclusion

This is welcome clarification on the correct application of the Zambrano principle and the circumstances in which an appellant has a derivative right of residence. For those currently handling cases which engage these principles, please note that at the time of writing, the Home Office has yet to update their guidance.

The current document ‘Free movement rights: derivative rights of residence’ version 5.0 dated 2 May 2019 still requires to be updated (see here). Page 52 of 63 of the Guidance still erroneously states: Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.

Ramby de Mello and Tony Muman and appeared for the 1st-12th Appellants.

For any further enquiries please contact Tony and Ramby’s clerks on 0121 237 6035 or clerks@halcyonchambers.com 

Law in the time of COVID-19: A Practitioners Guide to Hearings

Article by Naomh Gibson

In Ernest Hemingway’s 1926 novel, The Sun Also Rises, characters Mike Campbell and Bill Gorton discuss Mike’s money troubles:-

“How did you go bankrupt?” Bill asked.

“Two ways,” Mike said. “Gradually and then suddenly.”

Gradually and then suddenly

Much like Mr Campbell, the legal profession in the UK has also had to quickly come to terms with something which was slowly and inevitably coming down the pipeline  – video-link and telephone hearings. 

The spectre of remote hearings has always been on the horizon. There were semi-frequent pilot schemes and trials in the decade leading up to the COVID-19 pandemic. For example, from 2009-2010 HMCTS ran a ‘Virtual Court’ pilot for 12 months in two magistrates’ courts in London and North Kent, covering 15 police stations in London and one in North Kent (MOJ, 2010). While the main drawback of the pilot was the expense, researchers agreed that broadening the use of the technology might improve the economic case for its installation. The consensus was a ‘more integrated and fundamental inter-agency system would probably deliver better efficiency savings’.

Similarly, between 2018-2019, HMCTS ran pilot schemes for remote hearings in the Tax Tribunal and the Immigration and Asylum Chamber in Birmingham and London for a limited number of simple contested matters, usually case management hearings. As before, while the results were generally positive, as noted by the Master of the Rolls Sir Terence Etherton, the principal complaints concerned the reliability of IT equipment and the absence of training of the judiciary for the use of that system (see here). Again, underfunding and under-implementation proved to be the stumbling blocks of an otherwise ambitious and innovative project.

On 20 June 2018, HMCTS announced that part of their £1bn reform programme projects would include judicial training on new technologies, an improved telephone conferencing system and ‘assisted digital’ i.e. a service for members of the public (including litigants in person) who have limited digital capability or who are unable to access resources and information digitally – including web-chat, telephone and face to face support – to be rolled out between September 2017 and March 2022 (see here). So far, so good. And then COVID-19 happened.

Current arrangements

From 18 March 2020, HMCTS has guidance on conducting remote hearings which is updated every few days (see here).

The essential headlines to take away are as follows: HMCTS provides an essential service, and this cannot stop during the pandemic. They will therefore try to ensure your hearing goes ahead.

However, HMCTS will have to make decisions on prioritising which cases are heard and in what order, as they always have. This is because, overnight, HMCTS have had to implement technological measures which would typically be in the works for months, potentially several years – as seen above. There will inevitably be teething problems, and this may cause a backlog while solutions are found.

Therefore, unless your hearing relates to a particularly urgent matter, expect that it may be considered low priority unless:

  • It relates to the custody or detention of an individual; 
  • It relates to the immediate well-being or safety of an individual and is not mitigated by social distancing protocol i.e. findings of fact for Child Arrangement Orders which are now moot as the children are limited to direct contact within the family home and the applicant family member does not live with them;
  • It relates to public health legislation, particularly under the Coronavirus (Emergency) Act 2020.

Physical hearings are to be avoided as far as possible, except in the rare situation where they cannot be held remotely. Practitioners should consider what can be done to minimise the need for physical presence – particularly as from 30 March 2020 only 157 Courts and Tribunals will be open to the public (see HMCTS court tracker for updated information).

Ultimately, the decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice. Any live hearings from Monday, 23 March 2020 will need to be approved by the judge hearing the matter, if necessary in consultation with their leadership judge. As such, if you consider a hearing must be in person, seek permission from the judge as soon as possible. 

What if my hearing is in person?

If your hearing must be in person and you have approval for this, contact your designated priority hearing centre/check the HMCTS guidance 24 hours ahead of the hearing to confirm what their updated COVID-19 protocol is – given the increasingly fast-paced developments, there may be last-minute changes in how the hearing is to be conducted.

General good practice is to maintain standard social distancing protocols where possible, e.g.:

  • Do not attend the hearing if you or anyone in your household has had symptoms and you have not yet completed the self-isolation period;
  • Bring your own drinks and avoid any court-supplied water carafes or fountains;
  • Bring your own sustenance as there will realistically be limited café services in or near the court building;
  • Bring tissues and/or handkerchiefs to wipe down surfaces or use as a physical barrier if needed;
  • Keep separation distance (2m/6ft) from people at all times, including when in queue to get into the court building or go through security;
  • At security, open your own bags/belongings for checking – particularly if security staff are not wearing gloves;
  • At security, if the tray for visitors’ belongings is not lined with paper or you are concerned it is not clean, put your belongings in an open bag and ask that it be checked that way instead;
  • Do not use elevators if at all possible. If you must, use elevators one person at a time, save for any person who is accompanied by a medical professional or member of their household such as a carer; 
  • Do not share documents/ Ipads/ holy books/ oath laminated sheets etc;
  • Take breaks every 2 hours during hearings to wash/sanitise hands – hand-washing is preferable to using hand-sanitiser.

What if my hearing is remote?

If your hearing is to be conducted remotely, ascertain quickly whether it will be by telephone or video link, and using what software. Typically, BTMeetMe is being used for telephone hearings, and Skype for Business is used for video link hearings. Telephone hearings may also be via BT Telephone Conferencing, Legal Connect, Kidatu, and Arkadin.

There is no need for specialist equipment for either of these types of remote hearing. Telephone hearings require access only to a telephone, and video-link hearings require access to a laptop with an in-built webcam, or a PC with a webcam plug in option. The mobility of laptops will make them preferential as opposed to desktop computers. iPads and iPhones are not recommended, but as a backup they can be used if all else fails.

While not essential, participants might find the audio for remote hearings runs smoother when using a headset, or headphones with microphone. This allows the audio from others to play directly into the participant’s ear, and the audio from the participant will be picked up much easier by the proximate microphone. This has the benefit of avoiding background noise from interfering with the remote hearing, especially for those working from home with noisy pets/children/partners.

It is unlikely to apply due to social distancing protocols, but if you are in a remote hearing in the same room as a colleague/client and you wish for them to also hear the call and contribute freely, consider using a splitter adapter/jack so both of you may use headsets/headphones, or alternatively a Bluetooth speaker.

Participants to a video-link hearing do not need Skype for Business to join the same, however they will need the free Skype Meetings App. Each participant will receive instructions and a link to click to join the hearing, as a ‘guest’.

Once users click on the link, they should follow the browser’s instructions for installing Skype Meetings App. Do this as early as possible to be prepared for your hearing.

If you don’t receive a link, send the Court a request for a link and ask them to do the following:

  • Click on Meeting Entry Info in their Skype session – they will see this image in the bottom right hand corner of the screen;
  • Click copy info on the new window and email that to the participants.

At least 24 hours before the remote hearing, do a dry-run with your colleagues or clients. Skype can be used and experimented with at-will between participants who have accounts. As BTMeetMe usually operates by the Court dialling out, a dry-run for a telephone hearing may require using another platform and asking a colleague to dial out to participants as the ‘Court’.

At the time of the video-link hearing, participants go to the Skype Meetings App sign-in page, enter their name, and select “Join”.

Ensure you are dressed appropriately for Court and have a neutral background – if you wish to blur your background, hover over the “Video” button during a call. In the pop-up that appears, toggle the “Blur my background” setting and Skype will automatically adjust your video feed so you remain in focus while a blur is applied to your background.

At the time of the telephone hearing, participants will be called and must accept the call as normal. Good practice during a telephone hearing, as you will not be visible, will be to ask every party to introduce themselves at the beginning of the call, and then to identify yourself before you speak each time. Consider keeping your microphone on mute during remote hearings when you are not speaking. Judges should take the lead in directing when they wish to hear from specific parties to avoid cross-talk.

Conclusion 

Only time will tell how successful remote hearings are in practice. For some, one of the few benefits of the current situation is that it has provided a kick up the proverbial to the legal profession to modernise.

While it would have certainly been more beneficial if HMCTS had made greater progress in the past decade at implementing remote hearing methods before the current crisis, they have laid a modest framework upon which to build. Any practitioners previously involved in pilot schemes should share the wealth of their experience, and together the profession can adapt.

Reference list

‘Virtual Court pilot: Outcome evaluation’ (Dec 2010) Ministry of Justice Research Series 21/10

COVID-19 and the Risk of Losing Your Home

Article by Katie Wilkinson

The true financial impact of the COVID-19 coronavirus is yet to be felt, but for many the inability to pay rent on their homes is a real problem that they are facing imminently.

The government announced emergency legislation on 18 March 2020 which included extensive measures to protect renters and landlords affected by coronavirus.

The effect of the legislation means that no persons in rented accommodation (including both social housing and private properties) will be forced to move out of their home during the period that COVID-19 affects society.

Landlords will be unable to commence possession proceedings to evict tenants for a period of at least 3 months. To address the unfairness that arises for landlords who may not be receiving their rental income, they can apply for a 3 month mortgage payment holiday meaning that they will not have the financial pressures of meeting mortgage payments, and in turn will not need to place pressure on tenants to pay rent.

At the end of the 3 month period the Government has stated that landlords and tenants will be expected to work together to establish an affordable repayment plan, taking into account tenants’ individual circumstances.

The bill acts to extend the period of notice for all types of tenancy to 3 months irrespective of what the grounds for possession are.

For example Section 21 notices previously required a notice period of 2 months, so in practical terms the legislation extends that period by 1 month. The legislation applies, however, to all notices seeking possession until 30 September 2020. The Bill does allow for further legislation to be passed to extend the 30 September date, and to lengthen the notice period further if required.

Landlords can continue to issue proceedings either in relation to notices which have already expired or notices which will expire prior to 30 September 2020. Such claims are routinely being stayed until the 90-day period has expired but in any event, whether the Court would be able to hear such claims in the next 3 months is unlikely.

On 19 March 2020 a message was released from The Lord Chief Justice to judges in the civil and family courts which reads:

“The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely. That will not always be possible. Sensible precautions should be taken when people attend a hearing. They are now well-known. We all take them when out of the home”

Whilst the civil courts have utilised telephone hearings for many years, they are rarely ever used when one party is unrepresented (which means that a person is not using the services of a Solicitor and instead represents himself).

Guidance from the Courts and the Government is evolving almost daily to take into account new information and issues arising as a direct result of COVID-19. Whilst the new measures will be welcomed by persons in rented accommodation, it should not be forgotten that any rent unpaid in the next 3 months will ultimately become repayable in full. The financial implications of this will no doubt subsist for many months to come and, whilst the Court may be sympathetic to financial problems caused by COVID-19, the laws applicable to possession claims will still be in force once the current situation improves.

Tom Wheeler successfully defeats a Bankruptcy Petition against the odds!

Tom’s client was faced with liability orders for unpaid council tax across a large portfolio of tenanted properties. Having failed to participate in the proceedings which brought about the liability orders, and having later ignored statutory demands served off the back of them, Tom was faced with opposing a petition for his client’s bankruptcy.

Tom had previously advised that a prompt application to set aside the liability orders was essential, but this had not been achieved by the date of the hearing. Against all odds, Tom was able to achieve dismissal of the petition. Arguing reliance on s.271 Insolvency Act 1986, Tom successfully persuaded the Court that a bankruptcy order was inappropriate in circumstances where the client was prepared to sell a property and give security for the debts owed.

Despite not having made such an offer before, the Court was satisfied that the Petitioning Creditor’s position was protected, and the petition was dismissed.

Tom is an expert in all areas of insolvency and can advise on all steps in the process of both company insolvency and personal bankruptcy – his profile can be found here.

The Importance of ADR: Further Guidance from the Court of Appeal

Article by Katie Wilkinson

The Court of Appeal have clarified the powers of the Court to require parties to engage in early dispute resolution which goes much further than the Courts’ general encouragement of mediation, and the imposition of costs sanctions to those who unreasonably refuse.

On 6 August 2019 the Court heard Lomax v Lomax [2019] EWCA Civ 1467 which concerned the effect of CPR 3.1(2)(m), and specifically the Courts’ powers to take case management steps that include hearing an ‘Early Neutral Evaluation’ (‘ENE’) ‘with the aim of helping the parties settle the case’. The issue before the Court in this inheritance dispute was whether such a hearing could be ordered in the absence of consent between the parties.

The decision of the Court of Appeal was a resounding YES.  The specific reference to an ‘ENE’ within the CPR came into effect on 1 October 2015. It is not the same process as mediation and falls into the Courts’ general case management powers.

It was noted by LJ Moylan that, although it would have been simple to include the same, the CPR did not contain an express requirement for the parties to consent to the ordering of an ENE. ENE was part of the court process, whereas mediation was not.

An ENE was held to be “a step in the process which can assist with the fair and sensible resolution of cases”.