1COR Bundle 2018-19

The annual newsletter of 1 Crown Office Row THE 1COR BUNDLE 2018-19

Welcome to the 7th edition of the 1COR Bundle

I wrote the introduction to the last edition Our UK Human Rights Blog has now of the Bundle in the middle of an election generated 1.4m visits since it was campaign and noted that seldom had there established and we have launched a new been such uncertainty not only in politics 1COR podcast series, “ Pod UK”, with but also in the law. Little has changed since presenter Rosalind English. We are also as then. Although our departure from the EU is determined as ever to open up the Bar and now only nine months away, the terms of our to that end we continue to lead the way with departure are no clearer now than they were our social mobility initiatives. We are the only then. Reading about the work we have been set in the country to offer a mini pupillage doing in over the last year has scheme exclusively for those from non provided me with a welcome distraction, privileged backgrounds which guarantees as I hope it will you. successful candidates an interview for pupillage and we carry out wide ranging Our work has ranged from a raft of health outreach activities. In the last year alone law and clinical negligence claims to public Sarabjit Singh QC has led a team of nearly law claims as diverse as historic waterways 50 in Chambers working with the in Hackney and arms exports to Saudi Sutton Trust to spread the word about the Arabia. There have been interesting cases Bar to over 1,000 state school students in the in tax, professional regulation, environment, 14 to 17 year old bracket. employment and equality and a fascinating case on Crown immunity. We are also We also congratulate Dame Christina involved in most, if not all, current public Lambert on her appointment as a Judge of inquiries including those into Child Sexual the and our two new Silks, Sarah Abuse, Undercover Policing, Grenfell Tower Lambert QC and Sarabjit Singh QC. and Infected Blood. Our Members are This will be my last welcome to the 1COR instructed in a wide range of high profile Bundle since I retire as Head of Chambers inquests, including those concerned with this September after 12 years. My successor the Birmingham Bombings, the Westminster will be Richard Booth QC in whose safe Bridge and London Bridge killings and the hands I leave the Bundle for the future. death of Alexander Perepilichnyy. We have also been involved in the inquests into the deaths of the former patients of Mr Paul Miller and those who died in the Shoreham Philip Havers QC Air Crash. Head of Chambers

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Contents

The Inside Story 06

Health Law 12

Public Law 16­

Tax Law 19

Public Inquiries & Inquests 22

Regulatory Law 26

Feature Article 28 Etiquette of Round Table Meetings

Personal Injury & Abuse Law 30

Employment & Equality 32

Human Rights 34

Law Pod UK & UK Human Rights Blog 37

Environment & Utilities 38

Equality & Diversity 40

Meet the Editorial Team 42

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The Inside Story

The last 12 months in Chambers

Arrivals Natasha Barnes has a mixed Jonathan Metzer and Charlotte public law practice including tax, Gilmartin have joined Chambers New tenants join 1COR national security, immigration and as tenants, following the Michael Paulin’s primary practice inquests and is a member of the completion of their pupillages. is in tax litigation, including Attorney General’s C Panel. She They have already appeared judicial review claims involving has a background in criminal law together for a community group HMRC. More broadly, Michael’s and is particularly interested in in a planning inquiry. Jonathan is work involves the intersection judicial reviews and tax litigation the new Commissioning Editor of between tax, administrative, and arising out of criminal or quasi- the UK Human Rights Blog. Prior employment law. He is a member criminal proceedings. She also has to her pupillage at 1 Crown Office of the Attorney General’s C Panel. a busy immigration law practice – Row, Charlotte was the Judicial particularly at an appellate level. Assistant to Lord Neuberger at the Supreme Court.

Staff News Chambers celebrated the 40th Two Associate Members Chambers were delighted that Sarah Lambert QC and Sarabjit Singh QC birthday of Andrew Tull with Alex Fletcher & Louis Candy have join chambers were appointed Queen’s Counsel this year bubbles and a beautiful cake. joined Chambers as clerks and Christian Howells joins us as an Sarah was called to the Bar in 1994 team in chambers and sits as a A Panel. He has a wide-ranging Olivia Kaplan as our marketing associate member. Edite Ligere and has long been recognised as a Deputy Costs Judge in the SCCO. practice which includes public law, tax manager. Our receptionist, returns as an associate member leading junior in her primary practice and clinical negligence. He is believed th Sarabjit was called to the Bar in 2001 Sheila Haynes celebrates her 10 after starting her legal career areas of clinical negligence and to be the youngest person from these and at his appointment to silk was a Anniversary with 1COR this year. at 1COR. costs. She is the Head of the Costs chambers ever to be made a QC. member of the Attorney General’s

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The new NHS Resolution Mediation Return to work Our roving Service has now started work in Leanne Woods has returned from returns from his adventures earnest. Robert Seabrook QC was maternity leave. She is on the in New Zealand selected to be a Mediator for NHS Attorney General’s B Panel. Her Resolution last year and is now Matthew Flinn returned to practice encompasses clinical undertaking a substantial number of chambers having spent 2017 negligence, professional discipline mediations each month. gallivanting around the world! After and regulation, inquests and public several months in his native New inquiries, police and public law. Zealand, Matthew spent the rest of the year studying Spanish in Spain and Colombia. Matthew, who is a member of the Attorney General’s C Panel, is looking forward to Martin Forde QC is providing returning to his main practice areas independent advice on the design of of clinical negligence, personal the Windrush compensation scheme Claire McGregor is in the process injury, and public law, and is hoping announced by the Home Secretary. of cross-qualifying for the Ontario to begin developing a practice in He is himself the son of Windrush Bar and has been working on a environmental law. parents and brings a wealth of mixture of class actions, cases experience in public law. concerning corporate accountability Appointments We are delighted to announce and aboriginal law. A devoted Hannah Noyce was awarded a that Owain Thomas QC, cyclist, she has been adapting to Pegasus Scholarship enabling her 1COR celebrates a new Jeremy Hyam QC and Amy Mannion sharing road space with North to spend three months living and Justice of the High Court have been appointed as Recorders American-style articulated lorries working in Wellington, New Zealand th and Leanne Woods as an Assistant as opposed to the more familiar On 11 January 2018 Christina in late 2017. Hannah worked in the Coroner for London East. Routemaster buses of London. Lambert QC was sworn in as The litigation team at Chapman Tripp, a Honourable Mrs Justice Lambert Sydney Chawatama has been Amy Mannion has been appointed leading New Zealand law firm. and assigned to the Queen’s Bench appointed to Co-Vice Chair of the Law to the Attorney General’s A Panel and The trip provided a fantastic Division. She took Silk in 2009 and Reform Committee of the Bar. The Dominic Ruck Keene to the C Panel. opportunity to learn about the was authorised to sit as a Deputy committee develops and considers practical workings of another High Court Judge in 2017. During proposals for law reform and to Sydney Chawatama has become a country, and to forge her 13 years in Chambers, Dame submits views to the Government Fellow of the Chartered Institute of links with working there. Christina’s practice focused on clinical and others. Arbitrators. After being awarded a negligence, professional regulation Diploma in International Arbitration and inquests and inquiries. She Clodagh Bradley QC was appointed by the CIArb in November 2017, was Leading Counsel to the Dame as Vice Chair and Leanne Woods David Hart QC was named one of he is now pleased to use the post Awards & Plaudits 1COR makes The ’s Janet Smith Review into alleged has been elected as an Executive the most highly regarded silks for nominals FCIArb! He is particularly Top 20 cases of 2018 misconduct by Jimmy Savile and the Committee Member of the Chambers was named Environment by Who’s Who Legal. interested in arbitration in Africa and relevant culture and practices at the Professional Negligence Bar ‘Professional Discipline Set of This year only 46 barristers were The action concerning Harvey investment treaty arbitration. BBC. In 2013 she was appointed as Association. the Year’ at the annual Chambers & identified by the legal guide with Weinstein was named by The Lead Counsel to the new inquests Partners UK Bar Awards. David ranking in the top four silks Lawyer as one of its Top 20 cases into the 96 deaths resulting from for his proven track record in this of 2018. Lizanne Gumbel QC the Hillsborough Stadium Disaster Lizanne Gumbel QC was area. It was said of him that, ‘the and Paul Reynolds are instructed in April 1989. shortlisted for personal injury and ‘brilliant’ David Hart QC at 1 Crown by to represent the

clinical negligence silk of the year Office Row is ‘very well respected’ alleged victims of sexual assaults. by The Legal 500 - after winning by peers who describe him as ‘a Emma-Louise Fenelon was Jo Moore has been appointed to the the award the previous year. real environmental re-elected to the committee of the Sports Resolution Pro Bono Panel. She was also ranked as a Star law specialist.’ ’ Human Rights Lawyers Association Silk by Chambers & Partners for as Vice Chair. both personal injury and clinical 08 negligence. 09 THE 1COR BUNDLE 2018-19

Other news New logo and website Sally Smith QC appeared in the BBC Special Dinner pays for Chambers TV series Murder Mystery and My tribute to 1COR silks Family about one of Marshall Hall’s Chambers held a special dinner at 1COR was pleased to launch our new murder trials. This follows on from Lutyens Restaurant to celebrate the logo and website at the end of 2018. the success of her biography about careers of some of Chambers’ most Chambers hopes that users will find the star of the criminal bar. She is distinguished Members. As would the new website, with its modern currently writing a new book. be expected of such a famed after- logo and colour scheme, easy to dinner speaker, the main speech was navigate on mobile devices as well given by James Badenoch QC, who as from computers. Christmas Card marked his 50 years in Chambers Competition NEW working in the fields of clinical negligence, personal injury and Jim Duffy and our trusty clerking professional discipline. More recently elves Andy Tull and Maisie Taylor James appeared in such high profile featured in this year’s Christmas Card, cases as Montgomery v Lanarkshire and were identified correctly by Sara Health Board. Miller from the MDDUS. She chose to donate the prize money of The dinner also heard tributes to £200 to Crohns & Colitis UK. Kieran Coonan QC who has been, for 1 Crown Office Row also made a so many years, a dominant presence The website contains all the usual donation of £200 to Small Steps. in the fields of clinical negligence, contact information and details about professional disciplinary and our members’ areas of expertise, regulatory law. He also chaired public and gives greater prominence to inquiries relating to mental health Lizanne Gumbel QC and her son the latest Chambers news and legal A tribute to HH Oddie issues as well as appearing for the Mark Wainwright ran in both the resources. The website also offers It is with sadness that Chambers defence both when a junior and a QC Brighton and London Marathons. enhanced opportunities to link learned of the death of former in high profile criminal cases involving Sally Smith QC had a stellar reputation They run every year in support of directly to our other chambers sites - member and later distinguished difficult scientific or medical issues. in clinical negligence, acting for both LOOK-UK, a charity which helps the UK Human Rights Blog and Law Circuit Judge, Christopher Oddie claimants and defendants, including visually impaired young people Pod UK - from every page. following a long illness. Christopher As a writer, speaker and barrister, class actions as well as professional and their families to help develop Joanna Glynn QC was the doyenne regulatory work. She recently sold an Its numbers are already much larger was recruited to Chambers in 1960 self-confidence, learn new skills of the professional discipline and option on the TV rights to her book, than those of its predecessor. Do specifically to handle work on the and combat social isolation. This regulatory Bar. She was also involved Marshall Hall, A Law Unto Himself. come and visit, and don’t forget to let Oxford Circuit as John Wood and year they were joined in the London with Amnesty International and us know what you think! Harry Woolf had expressed a desire Marathon by Jim Duffy and Gideon the Bar Human Rights Committee, Chambers marked the retirements to concentrate on London work. Barth. Jim ran for the London undertaking trial observations in of two very popular staff members: Christopher was appointed as a Legal Support Trust, which secures and Turkey. She was a former Lorraine McHale and Gloria Circuit Judge in 1974 at the relatively access to justice for vulnerable Trustee and then Chair of Board of Scaramuzza. Lorraine joined young age of 45. He also sat as individuals and their families by Trustees of the Redress Trust. Chambers in 1994 as the first ever a Deputy High Court Judge, supporting law centres and legal Chambers Administrator and saw served as Chairman of the County advice agencies across London Terence Coghlan QC was a highly Chambers double in size over this Court Rule Committee, as a member and the South East and Gideon was regarded silk who represented all period. Gloria was for 20 years the of the Judicial Studies Board and raising money for Shelter. the health authorities in England Chambers Housekeeper. as member of the Council of St and Wales when they were sued Mary’s Hospital Medical School. in the Myodil multi-party litigation. Ambriel Blanc de This year also saw the retirement of He also found time to edit Passionate about music, he has Blancs 2010 from HHJ Coltart, the longest serving Circuit Butterworth’s County Court been a Director of the City of the vineyard of Judge in . He was David Hart QC made his operatic Precedents and Pleadings. London Sinfonia and Temple Music Wendy Outhwaite QC a popular member of Chambers and debut as Sarastro in Mozart’s The Foundation. received a gold medal in the 2018 one of the founders of the annex in Magic Flute in a production by North Decanter Awards. Brighton. Norfolk Chamber Opera at the Auden Theatre in Holt. 10 11 HEALTH LAW

Health The boundaries of Montgomery Law continue to be explored Richard Booth QC, instructed was alleged that doctors had by , has negligently failed to inform the successfully defended a clinical Claimant, who was suffering negligence claim where it from post-thrombotic syndrome following an ilio-femoral deep vein thrombosis (DVT) after giving birth, of an experimental treatment Scope of the duty option which was only potentially of care where there available in a few centres in Europe. In Bayley v George Eliot are multiple birth Hospital NHS Trust [2017] EWHC conditions 3398, the Court concluded that the Supreme Court to weigh in on hospital Trial win for an In Meadows v Khan [2017] EWHC relevant treatment (ilio-femoral 2990, the Claimant’s GP admitted receptionist duties Intensive Care Unit venous stenting) was not a that she had negligently failed to sufficiently recognised treatment John Whitting QC successfully arrange the appropriate tests to at the relevant time (in 2008), so defended an Intensive Care Unit show whether the Claimant was a that it was not negligent under (“ICU”) in Oliver v North Cumbria carrier of haemophilia. That led the Montgomery to fail to inform the University Hospitals NHS Trust Claimant to believe that her children Claimant about it. [2018]. A clinical negligence claim would not have haemophilia. In the was brought after the Claimant event, her child was born with both suffered a cardiac arrest in the haemophilia and severe autism. ICU shortly after undergoing major Acting for the Claimant, abdominal surgery. The Court Philip Havers QC, who was accepted the Defendant’s case that instructed by McMillan , the post-operative monitoring, and Salisbury nerve established a chain of causation specifically the speed with which a agent attack entailing that, but for the lack of transfusion of blood was ordered In Secretary of State for the appropriate testing, the pregnancy and commenced, was entirely Home Department v Skripal would not have been proceeded In a time of increasing pressure on Health Services NHS Trust [2017] appropriate. John was instructed [2018] EWCOP 6, Owain with. The Defendant accepted public health services, what duty EWCA Civ 151. Philip Havers QC, by Ward Hadaway solicitors on Thomas QC and Matthew Hill liability for the additional costs of of care is owed by receptionists in who successfully represented the behalf of NHSR. successfully applied for a court bringing up the Claimant’s child hospital emergency departments, Defendant on appeal, has recently order allowing the Organisation due to the child’s haemophilia, but in relation to providing information appeared in the Supreme Court in for the Prohibition of Chemical argued that the additional costs about waiting times? That was the this matter. Judgment is awaited. Weapons (“OPCW”) to conduct associated with the autism, which question addressed by the Court Philip was instructed by Capsticks. an analysis of blood samples was an entirely unrelated condition, of Appeal in Darnley v Croydon lacked capacity to consent to the taken from the victims of the were outside the scope of the duty required interventions. Salisbury nerve agent attack. of care. The Court did not agree, Forged signature used to gain access to embryo Owain and Matthew were In this highly publicised case, finding that although the autism instructed by the GLD and led the Order was granted by Williams was unrelated to the haemophilia, Jeremy Hyam QC and v IVF Hammersmith Ltd [2017] The court held that there was by First Treasury Counsel, Sir J on the basis that it was in the it was a natural consequence of a Suzanne Lambert, instructed EWHC 2438 the Court found that a no negligence, and that a claim James Eadie QC. The Order was best interests of Mr Skripal and birth which would otherwise not by Hempsons, were successful mother had forged her estranged for breach of contract (between sought in the Court of Protection his daughter, Yulia Skripal, for the have occurred. in their defence of the claim in partner’s signature to gain access the father and the clinic) could not under the Mental Capacity Act samples to be taken and analysed damages against a fertility clinic, to a fertilised embryo, and the succeed on public policy grounds. 2005 as Sergei and Yulia Skripal to assist with the OPCW’s work. which permitted the thawing and father claimed the cost of raising implanting of an embryo. In ARB the healthy daughter that resulted.

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Premature birth and Delayed cancer Full House of 1COR members in patient complex brain injury diagnosis in confidentiality appeal 1COR members were instructed private care In ABC v St George’s Healthcare Respondent succeeded in having for each side in a complex case NHS Foundation Trust [2017] the claim struck out on the basis Pritesh Rathod successfully involving brain injury sustained EWCA Civ 336 the Appellant that there was no duty of care represented the Claimant at birth. In OXJ v North Bristol argued that her father’s doctors owed to the Claimant in these in the High Court claim of Trust, following a premature birth owed her a duty of care, which circumstances. However, the Scaddon v Morgan [2017] and subsequent complications, it required that they informed her claim was reinstated by the Court EWHC 1481, which related to became clear that the Claimant about her father’s diagnosis of of Appeal, which held that it was negligent treatment provided was suffering severe kernicterus Huntington’s disease – a genetic arguably fair, just and reasonable by a Consultant Gynaecologist damage including dyskinetic condition she stood a 50% chance that such a duty be imposed. on a private basis. Pritesh was cerebral palsy with significant of inheriting. When she became able to satisfy the court that Lizanne Gumbel QC, Henry mobility problems and status pregnant, the doctors decided not NHS Trust vindicated in non-accidental the Claimant’s gynaecologist Witcomb QC and Jim Duffy dystonicus, auditory neuropathy to disclose her father’s diagnosis, had breached his duty of care appeared for the Claimant, injury case problems, stained tooth enamel in accordance with the principles in failing to spot that she had instructed by Fieldfisher, while and behavioural problems. Liability of patient confidentiality and Emma-Louise Fenelon of injuries sustained during suffered from a prolapsed uterine Philip Havers QC and Hannah was partially admitted with an the father’s express wishes. At successfully represented an NHS caesarean section and M being fibroid. The diagnosis was Noyce represented the Defendant, admission of breach of duty and first instance, the Defendant/ Trust at a fact-finding hearing to roughly handled by one or more delayed by six months, at which instructed by Capsticks. causation. However, it was argued determine the cause of multiple of the sonographers at the point the Claimant underwent that the Claimant’s cognitive fracture injuries to a minor. The hospital during the course of a hysterectomy to remove the disability could have arisen from hearing of M (Care Proceedings: an ultrasound scan. The Trust fibroid. Damages were awarded Inherent jurisdiction to extend mental her prematurity rather than the Finding of Fact Hearing: Fractures) were joined as intervenors and, for the suffering endured during health detention admitted negligence. [2017] EWFC B50 occurred in after hearing from a range of the delay in treatment, and a Sydney Chawatama, instructed by key respects, and his detention the context of care proceedings experts, the Court concluded Lizanne Gumbel QC (instructed by general anxiety disorder arising Capsticks, appeared in an urgent could not be extended. The issue brought by the Local Authority in that no Trust employee had Enable Law for the Claimant) and from the incident. hearing in the High Court dealing for the court was what should relation to the child′s parents. The caused or contributed to the Richard Booth QC (instructed by Pritesh was instructed by with the detention of a minor (“P”) happen to P on his release, as he parents denied having caused any injuries sustained. DAC Beachcroft for the Defendant) Fieldfisher. under section 136 of the Mental clearly needed to be transferred injury and suggested that they reached a settlement to the Emma was instructed by Health Act 1983. After showing to a supportive environment. The were the result of a combination satisfaction of all involved. Capsticks. signs of severe disturbance, P was High Court agreed to exercise its placed in a hospital’s section 136 inherent jurisdiction permitting suite. However, two assessments an extension of P’s detention this with a recap on non-delegable 1COR offers Lessons from the carried out under the Mental to enable a suitable residential duty of care and the importance training on case Capacity Act 2005 showed that placement to be found. Paterson litigation of contractual context. A lively management P did not lack capacity in certain In the aftermath of the long- debate then ensued, as Dominic running and high-profile litigation was joined by Lizanne Gumbel QC In March Judith Rogerson brought against disgraced breast and Robert Kellar in arguing and Rhoderick Chalmers were surgeon Ian Paterson, on 22nd a hypothetical case study for pleased to speak to an audience Negligent midwife advice over the phone the Claimant, whilst Hannah, of claims managers in Leeds as February 2018 1COR members In TW (A Child) v Royal Bolton That breach was causative of the John Whitting QC and part of the Capsticks Diploma convened a presentation on Hospital NHS Foundation Trust brain injury that the mother’s son Jeremy Hyam QC stepped up in Clinical Risk and Claims the lessons to be learned. [2017] EWHC 3139 the High Court had sustained following his birth. for the Defendant. The evening Management. They provided Hannah Noyce spoke about held that a midwife who had taken was chaired by 1COR alumnus training on counsel’s perspective Lizanne Gumbel QC, instructed by vicarious liability and the a phone call from a mother in Dame Christina Lambert. of settlement and ADR, with tips Harrowells, acted for the Claimant, employment relationship (or labour had, given the information and ideas on how to manage whilst Angus McCullough one akin to employment) and Episodes from this presentation relayed to her, been negligent in cases based on their experience QC, instructed by Hamptons, a sufficiently close connection are available on LawPodUK. not inviting the mother to come of acting for both sides in clinical represented the Defendant. between that and the tort. into the hospital for assessment. Dominic Ruck Keene followed Law Pod UK negligence claims.

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Public PII Certificate in The “Jungle” in Calais Law extremism case In Citizens UK v the Secretary of Court dismissed the challenge, need not preclude State for the Home Department concluding that the process was [2017] EWHC 2301 the Claimant fair and reasonable, and that there a fair trial challenged the lawfulness of an was no systemic failure. The High Court has determined expedited process established David Manknell and Amelia that the courts should seek to by the British and French Walker appeared for the Home establish whether or not there is a Governments immediately before Secretary, instructed by the GLD. risk to children from the extremist and in the immediate aftermath of views of their parents even when a the French Government’s closure PII Certificate prevents them from in October 2016 of the camp considering part of the evidence. in Calais known colloquially as In Re C (A Child: Application ‘the Jungle’. Under the process for dismissal or withdrawal of around 550 children with close Life, Liberty & Security Judicial review proceedings) (No. 3) [2017] EWFC family in the UK, within the on the boundary 37 (27 June 2017), Mrs Justice meaning of Article 8 of the Dublin between a public and Pauffley frankly conceded that III Regulation, were transferred she had changed her mind as a to the UK between October a private decision result of Marina Wheeler QC’s and December 2016. The High David Manknell appeared in a case submissions on behalf of the exploring the scope of justiciable Home Secretary. The Court went decisions. In R (Underwritten on to determine that there could be Warrancy Co Ltd (t/a Insurance a fair trial using evidence that was Refusal to transfer foreign national prisoner Backed Guarantee Co) v FENSA Ltd in the public domain. to Albania unlawful [2017] EWHC 2308 the High Court The High Court decided that the had been involved in a £53 million dismissed a claim brought against Secretary of State for Justice armed raid at a Securitas depot in “FENSA”, the well-known operator of unlawfully refused to transfer February 2006. He was convicted a building self-certification scheme, a foreign national prisoner, Mr on kidnap, robbery and firearms which requires its members to have Supreme Court Bucpapa, back to his home charges in 2008. The Secretary of suitable insurance in place case considers country of Albania, to complete State refused to send Mr Bucpapa to protect consumers. immigration appeals his sentence there. Mr Bucpapa back to Albania on the basis that Chambers’ Annual Public Law Martin Downs who also FENSA had refused to authorise from abroad he would be released around seminar was held this year at spoke about Radicalisation the insurance product provided three years earlier than he would Neil Sheldon appeared in the King’s College London and was and the Prevent strategy. by the Claimants, with the result it have been released in the UK. Supreme Court in R (Byndloss) v dedicated to the theme of ‘Life, would not be sold to members of However, The Court held that this There was also a fringe Secretary of State for the Home Liberty & Security’. FENSA’s scheme. The Claimants was the inevitable consequence programme with breakout sought judicial review of that Department [2017] UKSC 42. of the operation of a 2013 Prison At its heart was a panel discussion sessions on privacy and decision, but the court refused on The Court had to consider whether Transfer Agreement between the chaired by Mrs Justice Whipple information law led by the basis that it was not a public or not certificates issued under UK and Albania – a fact about and which drew together a number Oliver Sanders QC and law decision amenable to judicial section 94B of the Nationality, which the Minister had not been of streams with Jeremy Hyam Amelia Walker, Inquests review, as well as on the substance Immigration and Asylum Act 2002, adequately briefed. The Court QC leading the conversation on and Article 2 facilitated by of the challenge. which required individuals who concluded that the decision was detention and deprivation of liberty Peter Skelton QC and sought to challenge deportation irrational and had to be quashed. and Marina Wheeler QC and Rachel Marcus and an David was instructed by the GLD, orders against them to appeal from Philip Havers QC acted for Mr Shaheen Rahman QC covering unlawful detention masterclass on behalf of the Department abroad, were lawful under Article Bucpapa, instructed by Duncan sensitive evidence and secret delivered by Suzanne Lambert, for Communities and Local 8 of the European Convention on Lewis Solicitors. hearings. The central seminar Alasdair Henderson and Government, which appeared as Human Rights. paper was written by David Manknell. an intervenor in the proceedings.

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Extraordinary Disclosure in closed judicial review Tax Rendition claims not proceedings Law an abuse of process In an important decision on scheme and objectives of the the closed material procedure statute. Angus McCullough QC Angus McCullough QC appeared under section 6 of the Justice appeared as a Special as Special Advocate in Kamoka and Security Act 2013, the High in the proceedings. and Ors v Security Service and Court has decided that there is Ors [2017] EWCA Civ 1665 which no common law right to a “core considered claims by a number of minimum of disclosure”. In Khaled individuals from Libya for damages v Secretary of State for Foreign for unlawful detention pending & Commonwealth Affairs [2017] deportation and the imposition EWCA Civ 1665 the Court held that of Control Orders. The primary such a common law right would question was whether or not the be inconsistent with the overall claims represented an abuse of Statutory appeal process to process, in that they might be take precedence following judicial seen as a collateral attack on Arms exports to Saudi Arabia challenged earlier determinations by SIAC. review challenge Angus McCullough QC is the basis that the exported items The Court of Appeal held that the Owain Thomas QC and Isabel Sri Lanka. Of particular significance acting as Special Advocate in a might be used in serious violation Claimant’s case had fundamentally McArdle acted for HMRC in judicial was whether the judicial review judicial review case concerning of international humanitarian law changed following the elucidation review proceedings brought by challenge could proceed in the export licenses for the sale of in Yemen. Although the claim was of evidence which showed the Universal Cycles Ltd and related High Court, given the existence of UK-produced arms and military initially dismissed by the Divisional extent of UK complicity in the companies, part of the Sports a statutory route of appeal. HMRC Successful equipment to Saudi Arabia. Court in July 2017, in R (Campaign extraordinary rendition and torture Direct Retail group. The claim argued successfully that the Against Arms Trade) v Secretary challenge to of Libyans by the Libyan and US The Campaign Against Arms concerned decisions to charge statutory appeal process should for State for International Trade security agencies. Accordingly, Trade group (“CAAT”) challenged the Appellants anti-dumping duty, take precedence and the case will Accelerated [2018] EWCA Civ 1010 the Court of their claims did not amount to the decision of the Secretary of VAT and customs duty on bicycles now proceed to an appeal before Payment Notices Appeal decided that the grounds an abuse. State for International Trade not which, HMRC says, originated the FTT. of challenge were arguable, Michael Paulin acted for the to suspend these export licenses from China but were inaccurately and the matter will proceed to a taxpayer in a case concerning and to continue granting new declared as originating from substantive appeal hearing. two Accelerated Payment Notices ones. The claim was advanced on Limitation trial (“APNs”) issued by HMRC’s counter on Greek Cypriot avoidance unit. He was initially abuse claims instructed via licensed access to Former Prime Ministers’ spending – advise on prospects and thereafter Alasdair Henderson is acting for a right to know? by Duncan Lewis Solicitors. the Foreign and Commonwealth Michael argued that HMRC had Matthew Hill has been instructed was made under the Freedom of Office and the Ministry of Defence failed to take into account relevant to act for the Cabinet Office in an Information Act for the disclosure in a group action brought by 35 and material considerations in information rights case concerning of certain documents relating to Greek Cypriots. They allege that issuing the APNs and that the former Prime Ministers and their the Allowance. The Information they were tortured or ill-treated APNs were ultra vires the statutory entitlement to the Public Duty Commissioner upheld a decision by British forces during the scheme and a breach of Article Costs Allowance. to withhold release of these Cyprus Emergency of 1955-1959. Protocol 1 to the ECHR. Following documents, a decision that was Following a hearing in Sophocleous The Allowance was established service of the taxpayer’s judicial subsequently challenged. Matthew v Secretary of State for the Foreign in the early 1990s to assist review pre-action protocol letter, has acted in the long-running and Commonwealth Office [2018] former PMs with meeting the HMRC withdrew both APNs, proceedings before the FTT and EWHC 19 (which is now going costs of continuing to fulfil duties obviating the taxpayer’s purported Upper Tribunal. The case continues. to appeal), a trial on limitation associated with their previous liabilities in their entirety. issues is due to take place in positions in public life. A request October 2019.

18 19 TAX LAW

Successful WOWGR revocation appeal Court Of Appeal Amy Mannion results in important guidance success in VAT case to appear in the Amy Mannion acted for HMRC in directed that HMRC should review concerning Talacre Supreme Court case concerning the revocation of its decision. HMRC appealed ‘Carve Out’ The Supreme Court has granted approval of Beehive Wines to trade to the Upper Tribunal, which permission in OWD Ltd & Another in duty-suspended alcohol under overturned the FTT, holding that Jeremy Hyam QC, instructed v HMRC [2017] UKFTT 411 (TC), the Warehousekeepers and Owners it had not approached the appeal by HMRC, was successful which concerns the Alcohol of Warehoused Goods Regulations correctly. The Upper Tribunal gave in an appeal concerning the Wholesalers Registration Scheme (“WOWGR”) as a result of their non- important guidance to the FTT in circumstances in which a Member (“AWRS”). The Supreme Court compliance with Excise Notice 196. hearing these appeals. HMRC was State can carve out ‘concrete and will consider whether and to what The original hearing of Beehive’s successful at the recent rehearing. specific’ parts of a wider supply, extent HMRC has power, when appeal in 2016 was among the Amy has represented HMRC and apply different rates across it has refused a trader an AWRS first of its type, and the FTT throughout. a CPP single supply. The case of the wider supply of serviced approval, to grant an ‘interim’ concerned whether Parliament holiday accommodation attracted approval whilst the trader appeals intended that the ‘concrete and the reduced rate. The Court of to the FTT. specific’ supply of fuel (electricity) Appeal unanimously rejected the for static caravans in the course Appellant’s arguments. Amy Mannion acts for HMRC and the Supreme Court will hear the case in July 2018. CJEU decides VAT ‘Cultural Exemption’ Alcohol excise WOWGR - approval case revocation appeal Sarabjit Singh QC successfully Isabel McArdle and Gideon the case in favour of revocation appeared before the Court of Barth, led by Stephen Nathan was only strengthened by the Justice of the European Union QC of , evidence heard during the trial. (CJEU) in Case C-592/15, represented HMRC in a six-week In particular, in upholding HMRC’s Commissioners for HMRC v British long appeal, Whittalls Wines (1) decision, the judge found that Film Institute [2017] STC 681. European Food Brokers Ltd (2) v documents had been deliberately Sarabjit′s success means that the HMRC [2018] UKFTT 0036 (TC). backdated, key witnesses had UK and all other Member States Court Of Appeal Success for HMRC HMRC revoked the approvals of the lied to both the Tribunal and to will be permitted to choose which Appellant companies to trade in HMRC, and there were significant abuse of law case cultural services to treat as exempt in revocation appeal duty-suspended alcohol. The judge failures to conduct adequate due from VAT, as many do already, Owain Thomas QC and Isabel Natasha Barnes was instructed dismissed the appeal, finding that diligence checks. McArdle, instructed by HMRC, and will not be obliged to exempt by HMRC in an appeal against its were successful before the Court of any service under the cultural decision to revoke the approval Appeal in HMRC v Newey T/A Ocean exemption that could be deemed of Rurkhee Trading to trade in Finance [2018] EWCA Civ 791. The to be ‘cultural’ somewhere on duty-suspended alcohol. The FTT Owain Thomas QC appears before Grand case raised issues concerning European territory. This ruling gives dismissed the appeal having heard Chamber of the CJEU what abuse means in the context the UK the green light to continue to evidence from both HMRC Officers Owain Thomas QC appeared scope of input tax recovery for of an offshore structure, created to treat certain cultural services such and the Appellant’s director. It before the Grand Chamber of finance leases and the scope of the reduce the tax payable in relation to as theatre admissions as exempt, found that the Appellant had failed the CJEU in a VAT case involving derogations for Member States to trade with consumers in the EU and whilst declining to extend that to comply with the due diligence Volkswagen Financial Services. agree special methods for partially has resulted in a reference to the exemption across the board to all requirements of Excise Notice 196 The case concerned recovery of exempt traders. Owain Thomas QC CJEU on questions arising from the cultural services. and refused to contemplate that VAT on overheads of Volkswagen’s was instructed by HMRC and led abuse principle. The Court of Appeal its goods might have been caught hire purchase transactions and Amy Mannion in the UK courts. allowed HMRC’s appeal, finding that up in excise fraud. raised important issues as to the the correct legal test had not been applied to the facts of the case.

20 21 INQUESTS

Public Inquiries Matthew Hill Inquest into and Inquests instructed as Lead post-abortion death Junior Counsel Martin Forde QC and to the Infected Sydney Chawatama were instructed by Slater and Gordon Blood Inquiry to act for the family in an The inquiry will examine the use inquest investigating the death by the NHS of blood products, of a woman who collapsed in many of which were obtained a taxi following a late surgical from high-risk donor pools termination of pregnancy. She contaminated with HIV, Hepatitis had travelled from the Republic C and other infections. Thousands of Ireland for the procedure. are thought to have died as a result The Coroner recorded a narrative 1COR instructed in recent major Inquest into death of of what Professor Robert Winston conclusion criticising the has described as ‘the worst deceased’s treatment by the clinic. Inquests & Public Inquiries a newborn raises a treatment disaster in the history The Independent Inquiry Infected Blood Inquiry number of criticisms of the NHS’. Following decades of into Child Sexual Abuse • Matthew Hill campaigning and a government • Lizanne Gumbel QC consultation, an inquiry has been Birmingham Bombing Inquests Inquest into the death of • Henry Witcomb QC established under the Inquiries • Peter Skelton QC • Peter Skelton QC Act 2005 and former High Court Alexander Perepilichnyy • Matthew Hill Judge, Sir Brian Langstaff, has • Robert Kellar Peter Skelton QC, Robert Wastell involving organised criminals in • Gideon Barth been appointed as Chair. • Iain O’Donnell and Leanne Woods acted as Russia. The full inquest was Matthew Hill has been instructed • Hannah Noyce Inquest into the death of Counsel to the Coroner in the held over four weeks at the Old by the to the Inquiry, • Emma-Louise Fenelon Alexander Perepilichnyy inquest into the death of Russian Bailey and the conclusion is Brian Stanton, of the GLD. • Matthew Hill • Peter Skelton QC businessman and whistleblower awaited. Before it took place, • Alasdair Henderson • David Evans QC Alexander Perepilichnyy, who died the UK Government successfully • Lois Williams • Robert Wastell unexpectedly in 2012 while jogging applied to the High Court to • Neil Sheldon • Leanne Woods near his home in Surrey. At the withhold sensitive documents • Amelia Walker Westminster Bridge Inquests time of his death, Mr Perepilichnyy on the grounds of public interest • Dominic Ruck Keene • Neil Sheldon Jo Moore and Emma-Louise was reportedly helping the Swiss immunity (Secretary of State for • Paul Reynolds • Matthew Hill Fenelon were involved in a six- authorities and Hermitage Capital the Home Department v Surrey • Matthew Flinn day inquest into the death of a Management, an investment fund, Senior Coroner [2017] 4 WLR 191). London Bridge Attack Inquests to identify the perpetrators of an Undercover Policing Inquiry baby shortly after being born at • Neil Sheldon alleged $230 million tax fraud • Oliver Sanders QC St Mary’s Hospital, on the Isle • Amy Mannion Inquests into the deaths of Wight. Jo was instructed on • Jim Duffy of former patients of behalf of the family by AvMA. • Jonathan Metzer Mr Paul Miller Emma-Louise was instructed to Coroner finds gross failure in • Peter Skelton QC (Litigation) • Sarah Lambert represent a Paediatric Registrar at St. Mary’s, by the Bar Pro Bono Downs Syndrome death • Emma-Louise Fenelon (Litigation) Inquests and Investigation Unit. The Coroner made a number Dominic Ruck Keene appeared treat his faecal impaction through a Grenfell Tower Inquiry into the Shoreham Air Crash of criticisms, undertook to visit St for the family in an inquest failure to escalate his deteriorating • Neil Sheldon • Martin Downs Mary’s and dealt with concerns investigating the death of condition to senior doctors • Leanne Woods • David Manknell regarding staffing levels, training, 33-year-old man with Down’s sufficiently promptly represented a and emergency transport links with Syndrome who lived in supported missed opportunity to prevent the the mainland in a Prevention of living with 24/7 care. The Coroner death. Dominic was instructed by Future Deaths Report. held that the ‘gross failure’ in the Hodge Jones & Allen. care given by Ipswich Hospital to

22 23 INQUESTS

Inquest halted Hospital discharge Inquest into death allegedly caused by pending potential found to be inappropriate cancer treatment manslaughter premature Sarah Lambert is representing the already been through several family of a man whose death from charges Dominic Ruck Keene appeared Pre-Inquest Reviews, will be the cancer is alleged to have been for the family via Direct Access lead and first to be heard when Sophie Burgess, an 11-month- caused by inadequate treatment. in a recent two-day inquest into it comes to full hearing later old baby, had a history of febrile The treating urologist, Mr Paul the death of a 71-year-old this year. The case has wide seizures and was given a very Miller, has since been dismissed grandfather. The Coroner found implications for patient safety large overdose of Phenytoin, which from his NHS Trust and is subject that failures in the hospital’s and is the subject of an ongoing was administered manually by to interim GMC conditions. care and wrongful premature BBC Panorama investigation a hospital doctor rather than by A number of other deaths have discharge were responsible for and significant press interest. syringe driver. She died following been linked to the same treating his death. The Coroner has written Sarah is instructed by Scrivinger a sudden cardio-respiratory arrest doctor, and this inquest, which has a report with recommended Seabrook Solicitors. in A&E. The issues at the inquest changes to East Sussex included how the overdose came Healthcare NHS Trust regarding to be given and why the drug was prevention of future deaths. given at all, given that the baby was ‘stable’ and despite a nurse challenging doctors about their treatment of the baby. Proceedings were halted on the final day of the inquest as police are re-opening their enquiries into potential manslaughter charges. Clodagh Bradley QC represented the family, instructed by Leigh Day. Family obtains neglect finding at inquest into respite care death Death in a mental Matthew Hill represented the Consequentially, a vital piece health unit results family of a 21-year-old woman was discarded, resulting in her in neglect finding with Niemann-Pick Disease, deterioration and ultimately her a rare genetic condition that left death. The Coroner returned a Caroline Cross represented her wholly dependent on others narrative determination, finding the family in an inquest into the for all of her needs. During a that her death was contributed death of Heather Loveridge, a five day stay at Douglas House, to by neglect. grandmother who set herself her ventilation equipment was on fire at a mental health unit Matthew was instructed by incorrectly changed by a nurse using a cigarette lighter. Upon Slater and Gordon. Truth? Justice? Accountability? with no training to do so. her admission into the unit for depression with psychotic Members of 1COR participated in panel discussion involving symptoms, the family contacted a flagship seminar dedicated to Deborah Coles from INQUEST the staff to advise them of her the theme of modern challenges and interesting points were Bonfire Night death investigated significant history of self harm of major inquests and inquiries. raised on issues of funding, In November 2015, whilst backwards and pinned Mrs Sun including self-immolation. Matthew Hill spoke about lessons involvement and composition attending a Bonfire Night display against another car. A jury at The Trust admitted that Mrs learned from Hillsborough, of panels in inquiries Loveridge’s handbag was not Gideon Barth on the challenges at her son’s school, Caixia Sun was Reading Coroner’s Court Episodes from this seminar are searched and she should not of getting involved in seeking a crushed to death by a car. The recorded a conclusion of available on LawPodUK. young driver, who worked in the accidental death. Robert Wastell have had access to a lighter. public enquiry, and Emma-Louise kitchen, went to park the school’s represented the family and was The jury concluded that she died Fenelon on secret and sensitive Law Pod UK Ford Galaxy car and, whilst in instructed by Fieldfisher. of misadventure contributed to information. Mrs Justice Lambert the process of parking, reversed by neglect. and Mr Justice Garnham led a 24 25 REGULATORY LAW

Complete a lengthy hearing, the surgeon for himself in order to refute Regulatory was entirely exonerated, with the charges. David was instructed exoneration for Law the Tribunal being critical of the by Plexus Law. cosmetic surgeon GMC and its experts, and finding that none of the allegations had David Balcombe QC successfully been proven. Categorising the defended a cosmetic surgeon investigations that had led to in the Medical Practitioners the surgeon’s referral as being Tribunal (“MPT”). The surgeon fundamentally flawed, the Tribunal had been accused of improperly acknowledged that the practitioner anaesthetising a patient in 2012 had been obliged to investigate and then lying to cover it up. After and find the necessary evidence

56 charges and no impairment 1COR Professional GMC appeal MPT decision dismissed High Court examines Richard Smith represented a inappropriate conduct towards Regulation Andrew Kennedy, instructed by Defendant made a successful “dishonesty” dentist before the Professional staff. Following a four-week Conference 2017 the Bar Pro Bono Unit, acted for application to the MPT to have his Conduct Committee of the General hearing the Committee found that in professional In June 1COR convened a major the Defendant doctor in General name restored under section 41 of Dental Council against whom 56 the dentist’s fitness to practice seminar at the Royal College of Medical Council v Nooh [2017] the Medical Act 1983. The GMC’s regulation charges of various kinds were was not impaired and therefore Surgeons, discussing the latest EWHC 2948. The case involved appeal was dismissed in the High In General Medical Council v levelled. These charges included no sanction was appropriate. developments in Professional one of the first appeals brought Court, with the judge holding that Chaudhary [2017] EWHC 2561 dishonesty, treating vulnerable Richard was instructed by Disciplinary law. Chaired by by the GMC against the Medical the decision was within the MPT’s the High Court carried out a patients without consent and RadcliffesLeBrasseur. Dame Christina Lambert and Practitioners Tribunal (“MPT”), ambit of discretion, and adequate detailed examination of the correct Martin Forde QC, the speakers which had made a decision to reasons had been provided for the approach to be taken by Medical addressed a range of topical restore the Defendant to the decision, even if the GMC did not Practitioners’ Tribunals (“MPTs”) Subject Access issues and developments. register of medical practitioners. agree with them. to issues such as dishonesty Andrew Kennedy and Michael and impairment. The Court Request win for GP After being erased from the Deacon carried out a detailed allowed the appeal of the GMC medical register in 2009, the Jim Duffy successfully defended a examination of Healthcare on the basis that the MPT had GP who refused to comply with a Regulatory Appeals, including failed to balance the three public Subject Access Request made by The Court’s approach to the factors of maintaining public a father in respect of his children’s meaning of “serious misconduct”. confidence in the profession, medical records. Unblemished record of osteopath Clodagh Bradley QC and maintaining professional A Child Protection Plan was controller is not obliged to comply Matthew Hill discussed the remains intact standards and protecting public in place under the category of with a request where to do so powers of the Professional In General Osteopathic Council v Committee found all of the health. It emphasised that all ‘Emotional Abuse’. When Dr A would be likely to cause ‘serious Standards Authority and the Z (2018), Clodagh Bradley QC allegations relating to the three considerations had to refused to disclose the children’s harm’ to a person’s health. new power vested in the GMC represented a Defendant treatment of the baby not proven be considered. However, The medical records and related to appeal decisions of the osteopath who performed a cranial and only found one allegation Court also decided that in the The father issued proceedings information, the father complained Medical Practitioners Tribunal technique on a four week old baby. proven in relation to a circumstances of this particular challenging the doctor’s to the Information Commissioner’s Service which are considered to The parents alleged that excessive demonstration on the parents, case, the public interest was determination using section 7 of Office (“ICO”). Dr A explained to be insufficient to protect the public. force was used and that baby’s resulting in the conclusion that best served by a direction that no the Data Protection Act 1998. The the ICO that she considered that Finally, Matthew Barnes and breathing was compromised. The the osteopath was not guilty of further action be taken against Court found the exemption had disclosing the information would Emma-Louise Fenelon considered Council’s expert suggested that it Unacceptable Professional the doctor. Those circumstances, been properly applied, and that Dr not have been in the children’s when it is appropriate to apply may have been a deliberate Conduct. As such, his unblemished and the arguments based upon A’s decision had been reasonable best interests. for judicial review of a regulatory attempt to induce a life threatening record of 26 years remains intact. them, were advanced by in the circumstances. This meant decision, in particular where it event. The Fitness to Practice Martin Forde QC, instructed by The ICO investigated and found that she had not been obliged to could provide a speedy resolution DAC Beachcroft. that Dr A had correctly applied comply with the request, pursuant to a serious procedural defect. the provisions of a statutory to section 7(4) of the 1998 Act. exemption under which a data Jim was instructed by the MDDUS. 26 27 FEATURE ARTICLE

still a few old hands, pounding appreciate that he/she may be with complex proposals (involving Feature around like gladiators. I remember faced with a cash offer, and should indexing, undertakings, start dates Article one silk launching into my leader be ready to respond. The RTM is etc). It is better – and fairer – to with an excoriating blast of oratory. essentially a creative process, and advance all the detail very clearly By then, he’d become well-known we cannot grumble at having to at the start, especially if you’re for these tirades, and, when it had adapt. ‘Be flexible,’ advises David asking for something unusual. subsided, my leader just smiled Evans QC, ‘No battle plan survives No-one wants to hear your wacky gently. ‘Funny, isn’t it,’ he said, ‘how first contact with the enemy.’ views on ASHE 1066 after a day all your geese are swans?’ spent dabbling in the millions.

Eventually, an etiquette evolved. In a small community like the clinical negligence bar, this wasn’t surprising. Everyone recognised the need for a little mutual understanding, and, besides, Etiquette of Round Table Meetings no one wanted to be thought of as a prima donna or a pitbull. It still makes me laugh, to think [CPR 1.4(2)(e) and (f)], and, if At heart, the unofficial rules of the way we used to negotiate necessary, the judge could stay are therefore simply matters of settlements. Until things changed proceedings to get the parties common courtesy. Don’t be late; in 1998, there was no easy way talking [CPR 26.4]. There were don’t be rude; don’t interrupt. If of starting discussions. punishments for the recalcitrant you’re hosting the talks, make sure too: if, without good reason, you your opponent has whatever they Personal injury litigation was failed to engage in discussions, need. It goes without saying that largely a battle of wills, and just you could be wacked in the wallet you should never lose your rag got louder and bloodier until [CPR 44]. although – as seasoned negotiator, John Gimlette eventually someone blinked. Angus McCullough QC says ‘It may It was no different with clinical As I remember, the CPR brought do no harm to show irritation, if Lambasting your opponent’s RTMs are now a big part of life at negligence; the lawyers were just no immediate outbreak of you consider that your opponent is case will probably do little more 1COR. There are often several in the legal equivalent of Bodie and harmony. Lawyers liked the round being unconstructive. But always than irritate (you can take it they the morning, and several more in Doyle, all bluster and brawn. We table meetings (or RTMs), but remain polite; apart from anything already know what you’re saying). the afternoon. It’s hard to believe had no real idea what the other many struggled with the ‘soft else, it tends to show that you are On the other hand, it is acceptable how things have changed over side were up to, and so – provided skills’ involved. Some of the early confident and unruffled.’ to probe at the other side’s 20 years. It’s no longer necessary no-one chickened out – we’d turn encounters were like cage-fights. weaknesses, and to see how they to bludgeon your opponent into up at trial, all tooled up and ready As to how you present your case, Even in the early 2000s, there were justify certain points. At a recent submission, and, nowadays, for a fight. There would be more the rules are more nuanced. RTM, the silk on the other side the only squeals come from the posturing at the doors of court but Certainly, it’s bad form to present described my enquiries as unfair kettle. Although the issues are as then (as often as not) there’d be a new claim at an RTM, and it may and ‘an ambush’. I still don’t think hard-fought as ever, the sounds of the proverbial screech of tyres, and also be unrealistic (most NHSTs his riposte was appropriate; we battle are now not so much blood- a settlement would appear. Punch- and MDOs – being complex should all be ready to justify our curdling as collegiate. If you do drunk, we’d all then head for home, bodies - are like supertankers, and position (and that was especially see someone crashing through the leaving behind a trail of hefty bills. take days to change direction). so in that case, where the windows, it probably won’t be one Equally, as a defendant, it’s churlish questions had already been raised of us but Tom Cruise, on another As we know, all that changed to turn up announcing – without twice in correspondence). of his little missions. with the Woolf reforms, 20 years warning – that you’ve no offers to ago. It would no longer be a sign make (such an approach may also We all know it’s good practice to of funk to suggest talks – but a leave you exposed on costs). But, reduce concluded agreements to legal obligation. The courts would beyond that, we must all expect writing. But it may also make for be constantly shepherding old the unusual. Even in liability-only good diplomacy to do the same bruisers into negotiations proceedings, a claimant should with offers. This is particularly so

28 29 PERSONAL INJURY & ABUSE LAW

Personal Injury Secondary Group Actions & Abuse Law victimhood 1COR instructed in: following Grenfell Mau Mau Litigation • Guy Mansfield QC In October 2017, Clodagh Bradley • Peter Skelton QC QC and Jessica Elliott were invited • Matthew Donmall to speak to Hodge Jones & Allen • Lois Williams LLP on the topic of ‘Proximity, • Jessica Elliott Perception and Victimhood: • Michael Deacon Recovery for Psychiatric Damage’. • Rhoderick Chalmers They discussed the implications • Jo Moore of the challenges in bringing Landmark Supreme nervous shock claims on behalf Court decision on of secondary victims within the police liability Paterson Inquiry Supreme Court grants permission in Justin Levinson context of those involved in the fire • Lizanne Gumbel QC Duncan Fairgrieve appeared • Henry Witcomb QC Social Services liability case involved in at Grenfell Tower and in particular the recent decisions of Werb v for the successful Claimant • Isabel McArdle numerous abuse Solent NHS Trust & The Priory in a landmark decision of the • Peter Skelton QC group actions Hospital [2017] (in which Clodagh Supreme Court in Robinson v Chief • Robert Kellar appeared on behalf of the Claimant, Constable of West Yorkshire [2018] • Dominic Ruck Keene Justin Levinson has been instructed by Fieldfisher), RE, LE & UKSC 4. The Court held that there • Jessica Elliott acting for victims in the Leeds DE v Calderdale & Huddersfield NHS is no general rule denying liability • Hannah Noyce Children’s Homes Group Litigation, Foundation Trust [2017] EWHC of the police when discharging • Matthew Flinn Medomsley Detention Centre 824 (in which John Whitting QC their function of preventing and • Richard Mumford Group Litigation and Caldey Island acted for the Defendant, instructed investigating crime and that • Christina Lambert QC Litigation. The claims arise out of by Hempsons) and Farnworth v the police owe a duty of care to (now Mrs Justice Lambert) historic child abuse in different Wrightington Wigan & Leigh NHS avoid causing by a positive act settings. The Medomsley Group Foundation Trust [2016]. foreseeable personal injury to Leeds Children’s Homes has over 1,000 claimants and is another person in accordance with Group Litigation the largest group action of this the general law of tort. Duncan was • Justin Levinson type ever in the UK. instructed by Grieves Solicitors. Medomsley Detention Centre Compensation Group Litigation • Justin Levinson claims for IICSA Successful settlement for survivors of abuse secondary victim Caldey Island Litigation • Justin Levinson Lizanne Gumbel QC and issues including the extent to Iain O’Donnell is acting in several Sarah Lambert QC has been instrumental delivery. Iain O’Donnell will act for the which domestic law must mirror compensation claims for Core successful in recovering damages Sarah, instructed by Gadsby Appellants before the Supreme the Human Rights Acts 1998 Participant survivors of abuse on behalf of a secondary victim Wicks Solicitors, negotiated a Sophocleous v Foreign Court in the case of CN & GN v and European Convention rights, who have given evidence to IICSA. by way of an agreed settlement. settlement for the father, who and Commonwealth Office Poole Borough Council [2017] and an assessment of the law He has achieved a significant The claim was for psychiatric had not been present at the • Alasdair Henderson EWCA Civ 2185, in which the on assumption of responsibility, settlement for a Core Participant injury suffered by the father moment of his son’s birth, but issue is not of whether private law liability for actions of third parties, who gave evidence regarding the of baby Frank Gamble, the had witnessed him subsequently claims in professional negligence and liability for omissions rather extent to which her anticipated Claimant’s firstborn son, who in an injured state during the can be brought by children against than positive acts. Philip Havers operatic career was ruined as a died shortly after being born from course of neurological testing. local authorities for the failures of QC and Hannah Noyce have been result of her being subjected to injuries sustained during a trial their social services departments. instructed to intervene on behalf sexual assaults by her music tutor. The appeal is anticipated to of the AIRE Centre. Iain’s other IICSA-related civil address various substantial legal claims are ongoing. 30 31 EMPLOYMENT

Employment Court approves injunction to prevent & Equality disciplinary proceedings against doctor facing criminal charges

Jeremy Hyam QC successfully granted injunctive relief against obtained an injunction for a the Trust to prevent them from Consultant Anaesthetist in Gregg v proceeding with their disciplinary North West Anglia NHS Foundation hearings in respect of the death of Trust [2018] EWHC 390. Dr Gregg is two patients pending a charging a consultant anaesthetist at North decision being made by the Crown West Anglia NHS Trust who was Prosecution Service. The Court being investigated by the police also prevented the Trust from EAT clarifies and the GMC with respect to the stopping his pay on the ground circumstances in alleged inappropriate hastening that he had been suspended from Supreme Court finds discrimination Bank vicariously of the deaths of two patients. At practice by the GMC. Jeremy was which a lawyer’s by Regulators can be challenged in liable for sexual a final injunction hearing before instructed by RadcliffesLeBrasseur. unavailability Justine Thornton QC, the Court Employment Tribunals assaults by a GP might justify an William Edis QC, instructed by brought in the Employment In Various Claimants v Barclays adjournment RadcliffesLeBrasseur, represented Tribunal. Such claims were not Bank PLC [2017] EWHC 1929 In a case which attracted Dr Ewa Michalak in the Supreme required to be pursued in the Lizanne Gumbel QC and widespread attention amongst Court in her long-running dispute Administrative Court. The GMC’s Robert Kellar were successful in employment specialists, the EAT with the General Medical Council. appeal was dismissed. Michalak v establishing that Barclay’s Bank found in Lunn v Aston Darby Group The GMC was appealing against General Medical Council and others was vicariously liable for any [2018] UKEAT 0039/18BA that the the Court of Appeal’s judgement [2017] UKSC 71 is significant for all sexual assaults committed by a GP difficulties for a party in obtaining that decisions of regulators for regulators and those affected by in the course of pre-employment alternative legal representation which there was no dedicated their early decision-making as the health checks. at short notice should justify a statutory route of appeal and ET is a forum that has significant Applying the Supreme Court’s postponement even in expedited that were alleged to be unlawfully advantages in terms of resolving decision in Cox v Ministry of proceedings such as those which discriminatory under the Equality such disputes, not least in relation Justice, the Court rejected the concern interim relief. Michael Act but were amenable to judicial to costs. bank’s submission that it was Paulin appeared for the successful review could nevertheless be not liable because the GP was Appellants in the EAT. an independent contractor in private practice. The Court held that the relationship between the GP and bank was sufficiently ‘akin to employment’ to justify the Alasdair Henderson appointed to the imposition of vicarious liability. Equality and Human Rights Commission Lizanne and Robert represented Alasdair Henderson has been He has been a major contributor to as well as helping it fulfil its important 126 claimants in a group litigation appointed as a Commissioner at the UK Human Rights Blog. Before role as Great Britain’s expert body on against the bank. The health the Equality and Human Rights coming to the Bar, Alasdair worked equality and human rights issues. checks took place between Commission. Alasdair brings to the for International Justice Mission in 1967 and 1984 when many of role his experience in litigation and Kigali, Rwanda, dealing with cases the Claimants were as young advisory work in the fields of public of land rights violations and sexual as 16. Lizanne and Robert were law and employment law. He has a violence against children. He is instructed by Slater and Gordon. particular interest in equality issues looking forward to assisting the relating to religion and belief, and EHRC in its partnership with other the protection of religious freedom. national human rights institutions,

32 33 HUMAN RIGHTS

Human Supreme Court delivers judgment in Rights prison smoking case The Supreme Court has delivered [1947] AC 58. The Supreme its judgment in R (Black) v Court clarified that this is only Secretary of State for Justice one example of where the Crown [2017] UKSC 81 – the long-running would be bound by necessary case concerning whether Crown implication. Other examples Immunity applies to the smoking include where an important ban introduced by the Health purpose would be frustrated. Act 2006. • They considered that it was The judgment, given by the neither necessary nor desirable President, Lady Hale, contained a to add any further gloss to the number of points of importance test or to characterize it by Prevent Guidance survives challenge Non-disclosure High Court challenge about statutory interpretation: adjectives such as ‘strict’. In R (Butt) v Home Secretary [2017] media. The Court also dismissed of Child Restraint to Dubs child • They noted that the goal of • They held that, in principle, EWHC 1930, Ouseley J rejected a an Article 10 challenge and found manual upheld refugee scheme all statutory interpretation is it is not an objection to the challenge to the lawfulness of: (1) that the use of data was lawful. to discover the intention of Crown being bound that the the Prevent Duty Guidance issued Oliver Sanders QC and Amelia dismissed Parliament. That intention is Act imposes criminal liability, to universities on external speakers Walker acted for the Home The High Court dismissed a judicial to be gathered from the words rejecting the Respondent’s attending campus events; and Secretary instructed by the GLD. review concerning the number used by Parliament, considered argument that a particularly (2) the work of the Home Office’s The Claimant’s appeal is due to of unaccompanied minors being in the light of their context and high threshold applied in such Extremism Analysis Unit which be heard by the Court of Appeal in given sanctuary in the UK under the their purpose. In this context, circumstances and noting that conducts research into extremism December 2018. Dubs amendment. they considered it clear that this has no basis in the leading and extremists, including using Lord Hobhouse’s dictum in English and Scottish cases. David Manknell and Amelia open source materials and social R (Morgan Grenfell & Co Ltd) v The Court of Appeal refused a Walker defended the government The court also considered Special Commissioner of Income challenge by Carolyne Willow against a challenge brought by the academic criticisms of the Tax [2002] UKHL 21; [2003] 1 AC of Article 39, who had sought charity Help Refugees to the Home presumption that a statutory 563, at para 45, that ‘A necessary disclosure of a training manual Office’s consultation process and provision does not bind the implication is one which on the restraint of 12-17 year- resulting setting of the number Crown save by express words olds in custody. The case raised necessarily follows from the of how many children could be or ‘necessary implication’. While issues about the competing public express provisions of the statute admitted and rehoused in the declining to reverse or abolish interests in disclosure and non- construed in their context’ UK. The Court also dismissed the rule altogether the Court disclosure and the relevance of must be modified to include the arguments in respect of alleged urged Parliament, perhaps the UN Convention on the Rights purpose, as well as the context, delay in making arrangements for with the assistance of the Law of the Child to the handling of of the legislation. the children to be admitted, and in Commission, to give careful requests under the Freedom of respect of the procedures that have • They rejected the contention consideration to the merits of Information Act 2000. The Court that it was necessary for the doing do. It is striking that the rule of Appeal dismissed the appeal in been followed or selection of the Willow v Information Commissioner children. David and Amelia were purpose of the legislation to be has been reversed in a number of & Ministry of Justice [2017] EWCA instructed by the GLD. ‘wholly frustrated’. This has been foreign jurisdictions. accepted as a requirement in 1876, finding that the Convention Philip Havers QC and Shaheen many cases (including by the is not engaged as a matter Rahman QC appeared for the Court of Appeal in this case) of domestic law and that the Appellant, instructed by Leigh Day. decisions reached were compatible since the use of that term in with Article 3 in any event. Oliver Province of Bombay v Municipal Sanders QC acted for the Ministry Corporation of the City of Bombay of Justice in the Upper Tribunal and the Court of Appeal, instructed by the GLD. 34 35 UK HUMAN RIGHTS BLOG

Court of Appeal gives new Article 8 Guidance on Immigration Rules Law Pod UK Following Neil Sheldon’s success Department : PG (India) v Secretary in the Supreme Court last year in of State for the Home Department R. (on the application of Agyarko) [2018] EWCA 1109. v Secretary of State for the Home The FTT’s approach to adopt an Department [2017] UKSC 11 on evaluative mechanism, consistent Listener milestone for new podcast series the principles that should govern with the Supreme Court decision the application of Article 8 in the 1 Crown Office conceived the series, and The Attic. As we go to press, and following existing good context of immigration decisions, Annual JUSTICE Row have with post production help provided it is approaching its 40th episode practice, was considered correct. Neil was again instructed by the launched a new by Whistledown Studios and expert and been listened to over 50,000 The decision to uphold the SSHD’s Human Rights Law GLD – this time to defend two podcast series input from barristers at 1COR. times. Popular episodes include decision not to grant leave to appeals against the Secretary of Conference with presenter You can listen to it on iTunes, interviews on Artificial Intelligence, remain was agreed with by the State for the Home Department’s Rosalind English, to discuss Overcast, Audioboom and other the progress of the Independent Court of Appeal. The appeals Shaheen Rahman QC and (SSHD) decision not to grant developments across all aspects podcast platforms. Inquiry into Child Sexual Abuse and were dismissed. Matthew Hill both spoke at the leave to remain in TZ (Pakistan) of civil and public law in the UK. the Right to be Forgotten. annual JUSTICE Human Rights Since its launch, Law Pod UK has v Secretary of State for the Home With previous experience working Law Conference held at the been named among the top 10 legal at the BBC World Service and BBC Law Pod UK London offices of Freshfields. podcasts by Scottish Legal News Shaheen provided an analysis of Radio 4’s Law in Action, Rosalind recent developments in judicial review, focusing in particular on fees, costs and access to justice. Matthew spoke about public By the numbers inquiries and inquests, looking at UK Human The UK Human Rights Blog now the lessons to be drawn from the has 18,000 followers on twitter various investigations into Bloody Rights Blog (@ukhumanrightsb) and over 17,00 Sunday and the Hillsborough people who receive updates by stadium disaster and how they email on a regular basis and could be applied today. 2018 has seen the number of hits received by the Blog grow month New Commissioning Editor for the Blog on month – the longest period of consistent growth for six years. The rights of the Jonathan latest developments in human The most popular pages remain Metzer has rights law. In particular, he aims to child in International those that discuss individual Articles been appointed increase some of the coverage of Relocation of the European Convention – such the new Supreme Court judgments in the as Articles 3 and 8 but, those aside, Martin Downs represented Commissioning UK as well as cases from the the top three posts from 2017 – a successful appellant in an Editor of the European Court of Human Rights. A marriage of convenience 2018 were: international relocation appeal: A v B UK Human Rights Blog. Jonathan It is a little known fact about Jonathan Metzer succeeded in immigrant from Albania, was (International Relocation) practises across a range of human Jonathan that he appeared in 1 10 cases that defined 2017 by an appeal on behalf of a married overturned. Jonathan’s approach [2018] EWHC 328. This is one of rights-related areas, including University Challenge for Worcester Jonathan Metzer couple at the FTT in Kaziu and was singled out for praise with a series of cases where Martin public law, immigration, inquests College, Oxford in 2011. 2 Charlie Gard: Strasbourg Court Nowak v Secretary of State for the the judgment referring to his has represented Polish families and public inquiries. He wants to We thank the outgoing rules parents’ case inadmissible: Home Department. The Secretary ‘thoroughly professional attitude, in Appellate cases in England and develop the work of the editorial commissioning editors Yates v by of State’s decision that the couple in keeping, of course, with the Wales. Martin was instructed to team in ensuring that the Blog Michael Deacon and Hannah Rosalind English had entered into a marriage of time honoured traditions of the undertake the appeal by Setfords remains one of the go-to resources Noyce for their excellent work in convenience to secure residency Bar.’ Jonathan was instructed Solicitors. for any reader interested in the 3 High wire walking without a mat: the previous year. rights for the husband, an illegal by Huneewoth Solicitors. doctors, patient safety and public confidence: General Medical Council v Dr Bawa Garba by 36 Jeremy Hyam QC 37 ENVIRONMENT & UTILITIES

Environment Environmental law after brexit Planning inquiry & Utilities David Hart QC commented in it means that the government into proposed The Times on how the will escape any liability under the development in proposed Brexit Bill might affect Francovich principle for past and environmental law. Asked about future breaches.’ David was also Farringdon how new plans might affect invited to speak at the 2018 Land Jonathan Metzer and Charlotte the rights of individuals and Symposium where he appeared Gilmartin appeared on behalf companies, he said: ‘This seems as a panelist discussing how land of a local community group at a to be a blatant way of government pollution will evolve over the next seven-day planning inquiry into a seeking to avoid responsibilities. 25 years. proposed development to knock If you take an area like pollution down an existing Farringdon multi-storey car park and replace it with a large new hotel, retail and office complex. Jonathan Success in Court of Appeal in utilities case Successful judicial and Charlotte represented In Southern Gas Networks v decision of the High Court, the review challenge the Catherine Griffiths and Thames Water [2018] EWCA Civ Court of Appeal analysed the law concerning Clerkenwell Community Tenants’ 33, the Court of Appeal found the on ouster clauses and held that and Residents’ Association, defendant water company liable the statutory scheme was not Regent’s Canal instructed pro bono through the to Southern Gas Networks for the incompatible with SGN’s common Jessica Elliott acted for one of the Environmental Law Foundation. cost of customer compensation law rights. David Hart QC and Claimants in R (Holborn Studios They led evidence from two payments made after leaking Jessica Elliott acted for the Ltd) v Hackney Council [2017] experts in design & heritage, water mains caused a gas outage successful appellant, instructed EWHC 2823 where it was found and delivery & servicing, and in Christmas 2012. Reversing a by Kennedys. that the local authority had failed raised arguments involving to re-consult on changes to a planning policy, whether the planning application. The proposed design was unsympathetic to development would have replaced the local architectural context, a number of industrial buildings on the impact on safety of vehicles the Regent’s Canal and the case and pedestrians and amenity raised issues about the protection of local residents. of historic waterways and the requirements of the duty to act fairly when applications are changed Liabilities arising following an earlier statutory consultation exercise. Hannah from Japanese Noyce drafted grounds for review Knotweed in the M4 Relief Road planning inquiry and assisted the Claimant at an earlier stage. Jessica was instructed Success for woodland charity Court Of Appeal Alasdair Henderson represented evidence raising concerns by Shakespeare Martineau, Owain Thomas QC successfully of charities to recover input tax David Hart QC and Jessica Elliott the Gwent Wildlife Trust, who are about whether the economic acting pro bono on behalf of the represented Will Woodlands, a where the ultimate purpose of the are acting for Network Rail in a one of a large number of objectors benefits of the new road would Environmental Law Foundation. private woodland charitable trust economic activity is charitable and case about liabilities arising out to the proposal to build an M4 be as significant as the Welsh in an appeal against HMRC’s where the business may not be of Japanese Knotweed on their Relief Road in South Wales. The Government claims, and whether decision to resile from a business/ immediately or ever profitable. The land, which the claimants say proposed new motorway would the project was in keeping with non-business method for the FTT dismissed HMRC’s objections have caused them property blight. destroy part of the Gwent Levels, the Welsh Government’s overall recovery of input tax incurred in the to the method and upheld Will The Court of Appeal considered a designated Site of Special economic strategy and the Well- running of several large woodland Woodlands’ position. Owain was the case in June 2018 and Scientific Interest and an area of being of Future Generations estates. The case amounted to a instructed by Hays Macintyre. judgment is awaited. wetland which is a crucial habitat (Wales) Act 2015. Dominic Ruck full scale challenge to the ability for many species of bird, animal Keene and Hannah Noyce also and insect. The Trust adduced acted for the Wildlife Trust. 38 39 EQUALITY AND DIVERSITY

Equality and Diversity

Opening up the Bar

As a chambers we are determined to students who are then able to • Richard Booth QC and to do whatever is in our power to take that first crucial step into what Richard Smith have continued make the Bar as representative of seemed to many of them to be a their involvement with the Lord society as possible, and to that end closed profession. Edmund Davies chambers continues to lead the Bar Trust, which helps Welsh students Examples of the activities that other with our social mobility initiatives. from disadvantaged backgrounds members of chambers have carried We are the only set in the country get a taste of legal London. out in the last year include: to offer a mini-pupillage scheme • Timothy Bergin, Susan Healey, exclusively for those from non- • Jonathan Metzer and Lynn McFadyen and privileged backgrounds which Charlotte Gilmartin concluded Richard Ager from our Brighton guarantees successful candidates that people may be lost to the Annex have undertaken a number an interview for pupillage. Bar by the age of 14 and so of events in Sussex, including they decided to focus on Peter We also carry out wide-ranging speaking to students from Hills primary school children outreach activities. In the last year, various backgrounds at the in Rotherhithe. I have led a team of nearly 50 University of Brighton. barristers in chambers that has • Vanessa Long has mentored a All the thousands of young worked with the Sutton Trust to secondary school student with people we’ve reached now have spread the word about the Bar to The Girls Network, an organisation on their radar a career at the Bar or over 1,000 state school students that seeks to inspire and empower in the professions more generally. in the 14-17 year-old bracket. girls from some of the least They tell others - the word spreads Martin Forde QC, Clodagh Bradley advantaged communities in - and gradually stereotypes about QC, Oliver Sanders QC, the country. the Bar are dispelled and access Sarah Lambert QC, Neil Sheldon, • Judith Rogerson spoke to 150 increases. We do not intend to let Rob Kellar, Caroline Cross, sixth formers in Solihull about her up with our efforts and indeed hope Michael Paulin, Amelia Walker, route to the Bar and both she and to reach many more people with Jim Duffy, Hannah Noyce, Alasdair Henderson are mentors our positive message of inclusion Emma-Louise Fenelon and for the Social Mobility Foundation. for years to come. Jo Moore have attended conferences, question & answer • Henry Witcomb QC has supported Sarabjit Singh QC sessions, workshops, law fairs and two Open University graduates graduation ceremonies, and through and several Sutton Trust and other work experience and shadowing we graduates with work experience have opened our doors in chambers and mentoring.

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