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Dispute Resolution

A step closer to defining the term ‘client’ for Legal Advice Privilege?
Wednesday 14th December 2016

In the recent case of RBS Rights Issue Litigation [2016] EWHC 3161 (Ch), at an interlocutory hearing, Mr Justice Hildyard was asked to consider RBS’s claim to privilege in relation to transcripts, attendance notes and other records of interviews conducted with employees and ex-employees.

The Judge in his ruling applied a narrow interpretation of who is a client for legal advice privilege purposes, as a client will consist only of those employees authorised to seek and receive legal advice from their lawyer. Furthermore, legal advice privilege does not extend to information provided by employees and ex-employees to or for the purposes of being placed before a lawyer. This reasoning was following the Court of Appeal’s decision in Three Rivers District Council and others v Governor and Company of the Bank of England (No 5) [2003] QB 1556, a judgment that has been the subject of much criticism for not sufficiently clarifying who is a lawyer’s ‘client’ for the purposes of legal advice privilege. Hildyard J himself alluded to such criticism by stating ‘there is, to my mind, force in these criticisms and attempts to confine the application of the decision in Three Rivers (No 5).

In CITIC Pacific Limited v Secretary for Justice and Commissioner of Police (unrep, 29/06/2015, CACV 7/2012), the Hong Kong Court of Appeal rejected the approach to legal advice privilege as established by Three Rivers (No5). Instead the Court adopted a broader test, which was based on deducing what is the dominant purpose of the document or communication. This test is more akin to the test that applies to litigation privilege, which appears more sensible, as it focuses on the substance rather than the form. Such an approach would also avoid the need for corporate clients to abide by unnecessary formalities in an attempt to obtain the protection of privilege for documents produced as part of the process of obtaining legal advice.

In the light of all these criticisms RBS has indicated that it will seek permission to appeal the decision. There is now hope that the Supreme Court will have the much awaited opportunity to revisit the law on privilege and answer the fundamental question as to whether the distinction between legal advice and litigation privilege is really appropriate. 


Challenging Mental Capacity – a High Hurdle
Thursday 8th December 2016

In the recent case of Poole v Everall [2016[ EWHC 2021 (Ch) the Court has demonstrated just how difficult it can be to evidence that a will was not validly executed because the testator did not understand the nature and quality of their actions.

In this case, the testator, Mr Poole, had a history of mental health issues. During his life he was cared for by Mr Everall.

In December 2012 Mr Poole executed a will which left 95% of his estate to Mr Everall.

Previously in February 2012 Mr Poole gave instructions to prepare a will that left nothing to Mr Everall and his solicitor recorded instructions from Mr Poole that he felt bullied by Mr Everall. That will was never signed but was amended in draft to reflect Mr Poole’s later instruction to his solicitors to reflect a legacy of 5% of Mr Pool’s estate to Mr Everall. 

Following his death in April 2013 Mr Poole’s 2 brothers challenged the December 2012 will for a variety of reasons including that Mr Poole lacked capacity to execute that will.

The Court concluded that Mr Poole was suggestible and vulnerable.  However, Mr Poole had been formally assessed by his solicitor and his doctor in February 2012 and both believed he had capacity to give instructions to prepare a will and to understand the effect of executing it.

In circumstances where there has been a contemporaneous professional assessment of the testator concluding that they do have capacity the threshold to be satisfied to successfully challenge a will for that reason is very high.


Coming to a city near you? The hidden cost for employers who provide workplace parking
Thursday 24th November 2016


The Workplace Parking Levy is a charge on employers who provide workplace parking. Nottingham is the only city to have implemented the Levy which collected £9.3 million for 2015/16, £9.1 million in 2015, £8.4 million in 2014 and £7.8 million in 2013. Other local authorities have rejected proposals to introduce their own levies, fearing criticism from local businesses or discouraging future investment. Cambridgeshire and Oxfordshire County Councils are currently considering implementing a levy similar to that in Nottingham. The money generated by the scheme in Nottingham is being used to fund the public transport network.

The law and to whom it applies

In Nottingham, the Levy is given effect by:

  • Sections.178-200 Transport Act 2000
  • The City of Nottingham Workplace Parking Levy Order 2008
  • The Workplace Parking Levy (England) Regulations 2009 (SI 2009/2085)

It is employers, as opposed to employees, who are responsible for paying the Levy, however, with the requisite knowledge and planning, employers can reclaim part of the charge from their employees. All employers or associated employers (subsidiary and parent companies) who provide workplace parking places to; employees, regular business visitors, students or pupils are legally obliged to consider the need to obtain licences for workplace parking places and may be liable to pay.

There are several exemptions to the Levy pursuant to the legislation. However, in terms of employee parking, in the most part, the employer will be obliged to pay the charge. Employers who provide parking to 10 or fewer employees are required to obtain licences, but receive a 100% discount.

The cost

This is potentially substantial.

In Nottingham, for the licensing period of 1 April 2016 to 31 March 2017, the charge is £379 per place, per year. VAT is not payable on the Levy however, if the employer introduces parking charges for its employees to pass on this cost, this would be subject to VAT. Another alternative is to introduce a salary sacrifice scheme. This allows an employee to sacrifice part of their salary for a tax exempt benefit in the form of workplace parking. This would save the employee tax and NIC.

Penalties and enforcement

There are 3 possible civil contraventions:

  1. Failure to have a licence.
  2. Failure to have a licence for all workplace parking places being provided.
  3. Breach of licence conditions. 

If an employer commits one of the contraventions above, they will be notified by the local authority and given a chance to remedy this. Continued non-compliance can result in Penalty Charge Notices. For contraventions 1 and 2, the Penalty Charge will be 50% of the annual charge per unlicensed parking space for each day contravention occurs. If unpaid, the local authority could commence County Court proceedings.

Whilst not yet imposed outside of Nottingham, the number of cities utilising the Levy is likely to increase. 


Doctors’ privacy rights – should the General Medical Council disclose information to patients?
Wednesday 23rd November 2016

In the recent case of Dr DB v GMC, a doctor successfully challenged a decision of the GMC to disclose an expert report, relating to the doctor’s fitness to practise, to a patient.

The case arises following a missed diagnosis of bladder cancer. The GMC investigated DB’s fitness to practise and instructed an independent expert to review the concerns. In the report, the expert had concluded that Dr DB’s care had ‘fallen below, but not seriously below, the expected standard’. The GMC therefore decided that no further action was to be taken against Dr DB.

However, having received a summary of the expert’s report, the patient requested a full copy as they intended to consider a possible claim in negligence. DB did not consent to the disclosure of the report, however, the GMC decided that it should be disclosed to the patient. Dr DB then brought proceedings in order to prevent disclosure.

When considering personal data held by others, the relevant law is set out in the Data Protection Act 1998 (‘the DPA’).

Under section 7(1) DPA, the patient is considered as a “data subject” and is therefore provided the right to access their personal data. However, in this particular case, the report contained not only personal data relating to the patient, but to Dr DB also.

In such circumstances, the DPA provides that a balancing exercise must be carried out. The GMC are to bear in mind any duty of confidentiality and the fact that Dr DB expressly refused to consent to the disclosure of the report. The fall-back position is that where consent has not been given, there is a rebuttable presumption against disclosure (Durant v FSA).

In favouring to disclose the report, the GMC considered the following:-

  1. The sensitive nature of the patient’s medical records;
  2. The conclusions made on Dr DB’s standard of care;
  3. The independence of the reporting expert;
  4. The GMC’s legitimate interest in fairness and transparency;
  5. The patient’s legitimate interest in seeing the report;
  6. Dr DB’s reputation;
  7. The lack of evidence to suggest that the patient would misuse the data in the report.

In response to this, Dr DB highlighted the following:-

  1. That he had an unblemished disciplinary history of over 25 years’ practise;
  2. His concerns that the patient may publish the report online;
  3. The absence of his own comments within the report;
  4.  His expectation that the report would be kept confidential following the decision to take no further action.

Mr Justice Soole held that the balancing exercise conducted by the GMC had been done incorrectly and that therefore the report should not be disclosed to the patient.

Mr Justice Soole agreed that the starting point should have been a presumption against disclosure, that the GMC had attached undue importance to transparency and equality of treatment and also, that the GMC had failed to consider that the purpose of the initial request for the report was for the intended litigation against Dr DB. This was held to be a significant factor in favour of refusal on the basis that the more appropriate forum is the court procedure for disclosure within the Civil Procedure Rules.

This case highlights that there is a balancing exercise to be conducted when considering the disclosure of such information, however, once consent to disclosure has been refused, difficulties may arise in overcoming this. 


New guidelines for crimes committed using social media
Friday 11th November 2016

The Crown Prosecution Service (CPS) has recently issued new “Guidelines on prosecution cases involving communications sent via social media” (the Guidelines), which are set to have immediate effect.

The Guidelines have been provided in order to assist prosecutors in recognising criminal behaviour committed online. They will deal with a wide variety of acts which are considered to be acts of virtual harassment and/or online bullying.

Offending under the Guidelines is broken down into four categories (and there are also additional sections on other classes of offending):-

Category 1 - Communications which may or could constitute threats of violence to the person or damage to property.

Category 2 – Communications which specifically target an individual and which may constitute a number of offences. This also included the recently formed offences of “controlling or coercive behaviour”, as well as “disclosing private sexual images without consent”.

Category 2 offences also include cases of what is known as “sexting”. This is identified as the exchange of sexual messages or images and the creation, sharing and forwarding of sexually suggestive nude or nearly nude images through mobile phones and the internet.

Category 3 – Communications that could amount to a breach of a court order or a statutory prohibition.

Category 4 – Communications which do not fall into any of the categories above and are those which are considered “grossly offensive, indecent, obscene or false”.

Charges will be brought under Section 1 of the Malicious Communications Act 1988 or Section 127 of the Communications Act 2003. It is important to note that under either stature, the offence is committed by merely the sending of the communication.

The prosecution of offences deemed to be within Categories 1, 2 and 3 are likely to fall within the scope of the public interest. However, cases within category 4 “will be subject to a high evidential threshold and in many cases, a prosecution is unlikely to be in the public interest”. Category 4 prosecutions are only likely to be suitable where the communication is more than:-

1.     “offensive, shocking or disturbing”;

2.     “satirical, iconoclastic or rude comment”; or

3.     “the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it”.

The new guidelines will require careful consideration of the applicability of freedom of speech under Article 10 of the European Convention on Human Rights (ECHR).

Article 10 provides that “Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

However, the ECHR have previously determined that the rights provided within Article 10 are not absolute. The case of Sunday Times v UK (No 2) Goodwin  v UK [1996] 22 EHRR 123 confirmed exceptions to these rights can occur where restrictions are both necessary and proportionate. 


Company Director facing trial for deaths of Fisherman’s Friend band members
Thursday 20th October 2016

A Company Director who has been accused of causing the deaths of a band’s singer and promoter has been said to have a “casual approach to safety”.

David Naylor, a director of Express Hi-Fold Doors Ltd is currently on trial at Guildford Crown Court for two charges of manslaughter by gross negligence. Trevor Grills and Paul McMullen died after a steel door collapsed at the ‘G Live’ venue in Guildford in February 2013.

The band, Fisherman’s Friend were at the venue to set up for a performance later that evening. Mr Grills and Mr McMullen were unloading music equipment from their van when the van door, which was designed by Express Hi-Fold Doors Ltd fell on them. The door measured 12m wide by 6.6m high and weighed in excess of two tonnes.

Guildford Crown Court has heard how Mr Naylor was aware that there was a serious danger of such a door falling because a number of the same doors had collapsed in the past, although no-one had suffered injury.

Zoe Johnson QC, who appears for the prosecution told the court that the prosecution alleges “that the failure to have an anti-drop safeguard coupled with other evidence of earlier door collapses and this defendant’s rather casual approach to safety means that his conduct is so bad as to amount to the offence of gross negligence manslaughter”.

The leading authority in respect of gross negligence manslaughter is the case of R v Adomako (1994) 3 All ER 79 in which a four stage test was developed by the House of Lords. In order to be convicted of gross negligence manslaughter, the jury must be satisfied, beyond reasonable doubt:-

a)     there was an existence of a duty of care owed to the deceased from the accused;

b)    a breach of that duty of care has occurred,

c)     the breach causes (or significantly contributed to) the death of the victim and;

d)    the breach is characterised as grossly negligent.

The company, Express Hi-Fold Doors Ltd also faces a third charge of a breach of health and safety duties imposed upon them by section 6 Health and Safety at Work etc Act, concerning general duties of manufacturers as regards articles and substances for use at work.

The trial continues.  


High Court endorses strict time limits for GMC appeals
Wednesday 19th October 2016

Section 40(4) of the Medical Act 1983 (“the Act”) relates to appeal to made regarding decisions of the Medical Practitioners Tribunal. The Act provides that an appeal must be made within 28 days, beginning with the date on which notification of the Tribunal’s decision as served. The Act does not provide any discretion for this period to be extended.

On 25 May 21016, the Tribunal, by way of letter, informed Dr El-Huseini that his fitness to practise was impaired by reason of misconduct and his adverse physical and mental health.  Dr El-Huseini received a 12 month suspension.

The letter sent to Dr El-Huseini stated that it was deeded served on 27 May 2016 and therefore, the last day of 28-day period to appeal was 23 June 2016.

On 22 June 2015, Dr El-Huseini sent to the Court, an Appellant’s notice, together with a completed application for a fee exemption. (It is a requirement of the Civil Procedure Rules that an appellant’s notice is accompanied by the appropriate fee, or if appropriate, a fee remission).

The Appellant’s notice and the fee exemption were duly delivered on 23 June 2016 (the last day of the 28 day period). However, on the same day, the fee remission application was rejected and he was asked to pay the applicable fee of £240.00. On 27 June 2016, Dr El-Huseini sent a cheque for £240 to the Court. This arrived the next day. His appellant’s notice was sealed and dated 28 June 2016.

The Court had three issues to look at when deciding if Dr El-Huseini’s appeal could be considered.

Firstly, what was the effective date of appeal? Dr El-Huseini’s application for fee remission had been rejected because the evidence he submitted showing is entitlement to ESA was over three months old. The Judge held that Dr El-Huseini should have provided sufficient information to demonstrate his entitlement to the remission within the appeal period. The appeal was therefore brought out of time.

The second issue to be determined was whether there was a requirement to vary the time limit to ensure compliance with the European Convention of Human Rights. The Supreme Court case of Pomiechowski v District Court of Legnica, Poland [2012] was considered in this regard, which reiterated that the “court must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring…timeously.”

In Dr El-Huseini’s case, the Judge considered his submissions, which concerned health difficulties, difficulties in obtain the relevant transcripts from the Tribunal and difficulties in obtaining legal advice. However, it was concluded that none of these were the cause of the late appeal. This was the failure to obtain and send the correct evidence of entitlement to ESA. Therefore, Dr El-Huseini had not done everything he could to bring the appeal in time, as per Pomiechowski.

Finally, determination was also necessary to the requirement to extend time to make a reasonable adjustment for disability as required in some circumstances by the Equality Act 2010. This issue was also dismissed. The time limit in place is not a provision or practice such that there can be a duty to make reasonable adjustment. The general obligations of the Equality Act cannot impose an obligation upon the court to do something beyond their powers or create a power they would not otherwise have.

On the facts of this case, an extension of time was not held to be justified.

Registrants should bear in mind that the time limits imposed for appealing regulatory decision are stringent and any discretion to extend is likely to be exercised rarely. 


Keep our Dispute Resolution services “the best in the world”, says Lord Chief Justice
Tuesday 18th October 2016

Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, has spoken of the need to look at keeping the countries’ dispute resolution services the best in the world.

In his speech, given at the launch of TheCityUK’s Legal Services Report 2016, the Lord Chief Justice highlighted the importance of keeping English law up to date and also of “keeping our system the best in the world”.

One of the options of dispute resolution is arbitration, where an arbitrator or panel of arbitrators is appointed by the parties to make a binding decision.  The Lord Chief Justice spoke about exploring how the process could be changed to report decisions that are made at arbitration, in the public domain.  Available arbitrators include retired judges and Lord Thomas of Cwmgiedd is keen to see a greater use made of their awards so as to develop the law more widely.

Another popular form of dispute resolution is mediation, in which a neutral third party assists the parties to seek to agree a negotiated settlement of their dispute.  Last week was Mediation Awareness Week and Lord Justice Briggs used the opportunity to encourage the use of mediation in mid-value claims.  Mediation is a key component in reforms of the civil justice system and LJ Briggs recommended an expanded role for alternative dispute resolution in his recent Civil Courts Structure Review.  It seems likely that the use of mediation and ADR generally will only increase.

The Dispute Resolution team at Brabners are experienced in successfully employing all forms of dispute resolution, whether through the courts or through the different options of alternative dispute resolution (ADR), whatever the form of your dispute.


Ejector seat firm to be prosecuted over death of Red Arrows pilot
Friday 14th October 2016

The Health and Safety Executive (HSE) have decided to prosecute Martin Baker Aircraft Company Ltd over the death of a Red Arrows Pilot, Sean Cunningham.

Flt Lt Sean Cunningham was injured after being ejected from a Hawk T1 jet, whilst it was still on the ground, at RAF Scampton, Lincolnshire in 2011. He was propelled 220ft in the air whilst he carried out pre-flight checks as it was found that the ejection seat firing handle had been left in an unsafe position.  Flt Lt Cunningham later passed away in hospital as a result of his injuries.

The Senior Coroner for Central Lincolnshire considered that the company had failed to pass on a ‘risk to life warning’. Testing of the Mk. 10 Martin Baker seat showed that the safety pin could be inserted even when the seat was in the unsafe position, giving the impression the seat was safe. Upon review of the case, the CPS decided that no manslaughter charges would be brought against three individuals, in relation to their involvement in either the ‘manufacturing or the servicing’ of the ejection seat. Corporate Manslaughter charges were considered against the company and the MoD.

However, the HSE will now bring a prosecution against Martin Baker Aircraft Ltd for an alleged breach of Section 3(1) of the Health and Safety at Work etc Act 1974, which states:

“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”.

The case will be next heard at Lincoln Magistrates’ Court, on a date to be confirmed. 


Claims for maintenance after parent’s death clarified
Tuesday 4th October 2016

Sitting in the City of London County Court Judge David Halpern QC has further clarified the law as it applies to anyone seeking an order for maintenance from a deceased’s estate.

Michael Ames ran a very profitable London-based glazing company and, on his death, left an estate valued at over one million pounds. 

Mr Ames’ will did not make any provision for his daughter, Danielle, who is 41 with 2 dependent children. 

Danielle Ames brought a claim against her father’s estate for a provision for her maintenance pursuant to the Inheritance Act (Provision for Family and Dependants) Act 1975.

Ms Ames’ evidence to the Court was that her father had told her ‘it will all be yours one day’ and that her father was her best friend.  For this reason she was shocked when her father’s will left nothing to her.  Mrs Ames’ further evidence to the Court was that her outgoings exceeded her income by £2,000 per month and that she required provision from her father’s estate as a reasonable provision.

In contrast with Mrs Ames’ evidence Mr Ames’ partner, Elaine, gave evidence to the Court that Mr Ames believed that adult children should ‘look after themselves’                                                

In rejecting the claim Judge David Halpern QC concluded that ‘Danielle is capable of working and has failed to discharge the burden of proving that she is unable to obtain work. I conclude that her lack of employment is a lifestyle choice. That alone is sufficient to defeat her claim’.

The needs of Michael Ames’ partner, Elaine, to lead a comfortable life in retirement given her ill health were also a significant factor balanced with the claimed needs of Mrs Ames. 

This judgment reflects that there is no automatic right to countermand the terms of a will by reason of family ties where a child has comparatively modest means compared to the value of an estate.  The Court will make an award for maintenance only where there has been maintenance prior to death and, in making any award, taking into account the needs of beneficiaries or other qualifying claimants and the level of the maintenance that existed prior to death.