The Only Way is Ethics

As questions go, and lawyers have to deal with many of them, these seem innocuous enough. Personally I reply (most often) ‘fine’. Or ‘hanging in there’ if feeling fraught. Or ‘top form’ if, you know, I’m on top form. The question is just interesting enough to require a response, and bland enough not to require any form of deep soul-searching for an apt reply.

Now, how about: ‘How is your mental health?’ Not a question that gets asked much (if at all). Much trickier. Could lead to minutes ticking by while you consider it and come up with an appropriate response. And what does this Socratic-type enquiry mean for your life anyway?

Many of us don’t ask that question, don’t have time for it, can’t face what the answer might be, would prefer the whole question of health – mental, physical and emotional – went away so we could focus on the important things in life. Like the next client, and their problems. The trouble is, as much as many lawyers like to act as if we are brains on a stick, it turns out we are living, breathing, feeling creatures, exactly the same as everyone else. But potentially wearing darker clothing.

Which is why I think Mental Health Awareness Week (11-17 May) is a good thing. It creates a space for questions, awareness and possibly answers which don’t get a look in most of the time. The theme this year is mindfulness, which is an interest of mine. I was first taught to meditate in about 1996, and have gradually (very, very gradually) increased the frequency of my meditation from once every five years (roughly) to, now, most days.

I feel better for it, and it definitely helps increase my resilience and reduces incidence of depression (which I have had bouts of for about 20 years). So I am part of an unofficial group of professionals organising an event at 6.15pm on Monday 11 May during this year’s awareness week, kindly hosted by Irwin Mitchell solicitors, which will explore how meditation and ethics from a Buddhist perspective can fit with the world of work. Or, indeed, if they fit at all.

The title, perhaps inevitably, is The Only Way is Ethics (I’m sorry about that). Those new to meditation/Buddhism are very welcome, as well as those who have an interest or involvement already. Lawyers and non-lawyers alike are invited.

Our thinking is this: being a lawyer is highly pressured, there is little let up, at work or even at home (or on holiday) for many. Lawyers are pretty bad at looking after themselves, or seeking support and this all takes its toll. The organisation set up to encourage lawyers to look after their health is LawCare. As things currently stand, LawCare’s website contains lots of useful information about how to deal with an alcohol or substance abuse issue, or how to manage a return to work after stress-related absence.

This is absolutely vital information.

The point of a mindfulness practice is, as well as providing a way of improving health once there is a problem, it can also help to try and prevent these problems arising in the first place. The Bar Council last year launched its Wellbeing Committee, which has undertaken a survey of the profession, the results of which have not yet been published. The Law Society and CILEx don’t have much to say about practical techniques towards stress reduction and improved mental health. At least, not yet.

Lawyers are pretty bad at looking after themselves, or seeking support and this all takes its toll

Mindfulness has been practised for at least 2,500 years, since before the time of the Buddha, so has a reasonable track record. It can be practised entirely devoid of any spiritual content or meaning, although personally that doesn’t work so well for me. Our event is deliberately headed from a Buddhist perspective, and the speakers (two authors, a retired judge and a psychiatrist) are all practising Buddhists. The event will include a led-through mindfulness meditation and a discussion about how Buddhist ethics and work can co-exist or support each other.

When we started putting our event together, I was absolutely stunned that no one had run an event on mindfulness specifically for lawyers before. Mindfulness is the new buzzword in mental health. It can help with stress reduction, overall calm, focus, ability to deal with difficult situations, enjoyment of life and an increase in willpower. All things that seem to fit well with lawyering.

I appreciate the concept of sitting and paying attention to one’s breath for five minutes or half an hour could seem somewhat anomalous when you have just received another facetious letter from the other side and have 48 things on a to-do list at 6.40pm when it started out with 44 things on it at 9am. You may well recognise feelings of wanting to stamp all over your opponent’s pleadings, or even your opponent. Those feelings aren’t necessarily conducive to you giving your best to win your case, or to be pleasant to be around when you go home to those who love you.

Mindfulness can help with all this.

Our work as lawyers is important. The rule of law is important. Creating the best possible conditions for the work we do for our clients and for society more generally is worth doing. If we practitioners are burnt out husks, it doesn’t serve us, our clients, our firms, the legal system or, more seriously still, our families and friends.

So, if you would like to find out more please do sign up at the Eventbrite page.

We look forward to seeing you on 11 May.

Finally, must mention & credit Law Society Gazette as this post first appeared on the Law Society Gazette website.

Jo Shaw  barrister at 1 Essex Court

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The Right to Be Forgotten

Google Spain EL and Google Inc v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzales (C-131/12)

This is an important judgment with far-reaching consequences for how data controllers, and especially search engines, present information.


In March 2010 Mr Costeja Gonzales, a Spanish national resident in Spain, complained to his national regulator (AEPD) that when his name was entered into the Google search engine, a link to two regional newspaper articles appeared. Those articles alluded to Mr Costeja Gonzales’ historical debts. He requested that either the newspaper or Google be required to remove or conceal the personal data relating to him.

After AEPD upheld the complaint insofar as it related to Google, the company brought claims in the Spanish High Court. The Spanish High Court made a preliminary reference to the Court of Justice of the European Union (CJEU), asking it to consider, inter alia, whether the rights set out in the Data Protection Directive 95/46/EC enable a data subject to ask search engines to stop indexing information relating to him personally, published on the web pages of third parties, even where that data has been made available lawfully.


The Grand Chamber of the CJEU held that the Data Protection Directive provides that individuals should be able to apply to search engines for data to be removed where it is inaccurate, inadequate, irrelevant or excessive. Accordingly, initially lawful processing of accurate data may, in the course of time, become incompatible with the Directive where those data are no longer necessary in the light of the purposes for which they were collected or processed.

Political implications

This judgment was handed down in the context of negotiations over forthcoming legislation in this area. Once adopted, the General Data Protection Regulation (GDPR) will replace the Data Protection Directive, the legislation considered in Google v AEPD.

The text of the (GDPR) adopted by the European Parliament in March 2014 appears to have watered down the ‘right to be forgotten’ found in the text proposed by the European Commission, replacing it with a more limited ‘right to erasure’. This followed extensive and intensive lobbying by the industry.

It remains to be seen what text will be adopted after the conclusion of trilogues (a process of negotiation between the European Commission, the European Parliament and the Council), but the judgment of the Court of Justice in Google v AEPD may swing the momentum in favour of an approach emphasising the privacy of the individual.

Practical effect

Google will be immensely disappointed by this judgment, as will the other major internet companies, which will be concerned that the ruling will be extended to them in due course, either by the GDPR or further judicial decision.

The internet companies have identified technical problems with deleting personal data. Personal messages on social media accounts, for example, present a specific issue: to delete messages from one individual’s account requires interference with the accounts of others.

The compliance units that search engines (most notably Google) will need to establish in response to the judgment may need to be large to cope with the volume of requests they receive. They will also face a complex task: they may assume a quasi-judicial function, receiving competing submissions from parties on whether data should be removed.

Oliver Hyams

Pupil Barrister

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RIP Residence Orders

The Children and Families Act, in force since 22nd April 2014, has brought about important amendments to the Children Act 1989. The amendments affect both public and private law cases, but this short piece attempts to summarise the key noteworty changes within private law applications.

Change of Programme

The old Private Law Programme, has been replaced with the Child Arrangements Programme (CAP), which is set out at PD12B. Perhaps the most striking difference between the two, is the greater force with which the CAP attempts to encourage parties to mediate. Parties must, with a few exceptions, attend a Mediation Information and Assessment Meeting (MIAM) before issuing proceedings, during which they will be assessed as to whether they are suitable for mediation or not. Furthermore, a judge is obliged to consider, at every stage of court proceedings, whether non-court dispute resolution is appropriate, and if so, is to adjourn a hearing until such has taken place.

In what seems to be aimed at addressing unnecessary delay in cases, the instruction of an expert is to be considered at no later than the First Hearing Dispute Resolution Appointment (FHDRA), and of course part 25 of the FPR must be complied with. The CAP also sets out in an appendix all the necessary terms to note, some of which are set out below.

Change of Terms

The language of the Children Act 1989 has been updated so that what used to be referred to as a Residence Order is now referred to as a Child Arrangement Order (CAO). The CAO sets out arrangements relating to (a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any other person. The key here is that the word “residence” has been eradicated, although orders will continue to make reference to direct and indirect “contact”. The change of terms seems to be in aid of making the non-resident parent not feel any less important that the parent with whom the child lives. It may be considered doubtful that it will have such an impact on the perception of parents, given that in experience, a lot of parents still use terms such as “custody” and “visitation rights” or “access rights”, despite such terms not being recognised in English law.

Change of Form

Guidance issued by the President of the Family Division identifies the prescribed documents to be used in support of the CAP. Practitioners who also specialise in public child law, will recognise the format of the prescribed forms, as they are very similar to those currently used within public law proceedings. At the Directions on Allocation, any directions are made using the CAP01 form. The CAP02 form should be used at the FHDRA if an agreement and final order is not reached at that stage. At the Dispute Resolution Appointment (DRA), a CAP03 form is used, and a CAP04 form is used when a court makes a final order.


The CAP certainly places a much greater emphasis on alternative dispute resolution, and attempts to encourage even further, separated parents working together to reach an agreement. The change of language used appears to support that aim. Where practitioners often come into contact with parties between whom communication has entirely broken down, it will be interesting to see whether the CAP achieves the desired results.

For access to all the important documents mentioned above, including the President’s Guidance, and prescribed forms, follow the link below:


Gloria Ikwuakolam

Gloria Ikwuakolam is a barrister at 1 Essex Court specialising in public and private child law cases. For more information visit www.

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The UK Supreme Court very recently considered the limitation period for claims of dishonest assistance and knowing receipt in Williams v Central Bank of Nigeria [2014] UKSC 10.  The case involved an analysis of section 21 of the Limitation Act 1980 and a decision as to whether the limitation period for such claims is 6 years or whether there was no limitation period. The majority (3:2) held that the relevant period was ordinarily 6 years.


R’s case was that in 1986 he had paid $6.5m to a solicitor in England. In fraudulent breach of trust the solicitor paid $6m into an account of A. R now sought to claim in England against A for, amongst other things, knowing receipt and/or dishonest assistance. Those claims were plainly time barred if a 6 year limitation period applied.

The relevant statutory provision is section 21 of the Limitation Act 1980 which reads:

“21. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action

a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy ; or

 b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use…

(3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued.”

Section 38(1) of the Limitation Act 1980 defines the terms “trust” and “trustee” as having the same meanings as in the Trustee Act 1925. This provides:

“the expressions ‘trust’ and ‘trustee’ extend to implied and constructive trusts…”

As can be seen, subject to the exceptions in section 21(1)(a)-(b), the relevant limitation period is 6 years by virtue of section 21(3). The question was whether these claims fell within the exceptions such that there was no limitation period?


Section 21(1)(b)

Third party accessories to breaches of trust (i.e. those who knowingly receive trust property and those who dishonestly assist in breaches of trust) are commonly called “constructive trustees”. Does this mean a claim against them was a “claim to recover from the trustee trust property” within section 21(1)(b)?

The majority of Lord Sumption, Lord Neuberger, Lord Hughes and Lord Clarke (who did not dissent on this point) said no. There was a fundamental difference between express trustees, trustees in common intention constructive trusts and trustees de son tort on one hand and constructive trustees in the sense of third party accessories on the other. In the former cases, the trustee had assumed responsibility for the management of the trust and the beneficiary had placed trust and confidence in him as a fiduciary. The latter cases were no more than a shorthand for a person against whom equity will grant relief. Third party accessories were not “trustees” within the meaning of the subsection which was only targeted at the first group.

Lord Mance (in dissent) held that there was nothing in the wording of section 21 which sought to exclude constructive trustees (in the sense of accessories) from it. In addition, he held there was no proper distinction between trustees de son tort who had possession of trust property and on whom liability was imposed for their wrongdoing and knowing recipients. For those reasons, knowing recipients ought to fall into section 21(1)(b).

Section 21(1)(a)

The question here was whether section 21(1)(a) only covers cases brought against the trustee or whether it extended to claims against third party accessories so long as there had been a fraudulent breach of trust by the trustee.

The majority of Lord Sumption, Lord Neuberger and Lord Hughes held the former was correct. Parliament’s aim had been to only exclude the limitation period in respect of certain claims against trustees because of their singular relationship with the beneficiary.

The minority of Lord Clarke and Lord Mance held that section 21(1)(a) applies to claims against the trustee or the accessory so long as there has been a fraudulent breach of trust. Consequently, in those cases, there would be no limitation period for claims against the accessory.

The Result

As a result, neither of the claims fell within exceptions. A’s appeal was allowed and the claims were out of time. Following this decision, where a claim is brought against the trustee and he has committed a fraudulent breach of trust (subsection 21(1)(a)) or still holds the trust property/its proceeds (subsection 21(1)(b)) there will be no limitation period for the claim. Where he has committed an innocent breach of trust the period will be 6 years under section 21(3).

As subsections 21(1)(a) and 21(1)(b) do not ever apply to claims against third party accessories, the ordinary limitation period for claims in dishonest assistance and knowing receipt will be 6 years.


Section 21(1)(b)

As to the first issue: whether constructive trustees fall within section 21(1)(b), the majority’s view is to be preferred. It ignores the often-confused terminology and brings greater clarity to this area.

The reasoning is most clearly set out at the start of Lord Sumption’s speech. Constructive trustees (i.e. third party accessories) have none of the hallmarks of the other categories of trustee. In particular they have not assumed a role of trust and responsibility towards the beneficiary. The whole of the Trustee Act 1925 is plainly only concerned with people in this position who are responsible for managing trust property.  For this reason, the Trustee Act’s definition (adopted by the Limitation Act 1980) of “trust” and “trustees” does not extend beyond this category to third party accessories. To hold it uses “constructive trust” in this sense would be to perpetuate the lack of clarity over the use of that term.

Section 21(1)(a)

As to the second issue: whether section 21(1)(a) only applies to claims brought against a trustee in the traditional sense, the minority view is the better one.

The main objection to the majority’s approach is that it fails to place sufficient emphasis on the degree of culpability of the accessory. Parliament has chosen to do this in relation to the trustee so that, if he has been fraudulent, there is no limitation period. In contrast if he has committed an honest breach (and does not hold the trust property) the period is 6 years. The majority approach dictates that Parliament adopted a different approach in relation to accessories because the limitation period will always be 6 years.

The majority rejected the proposition that the limitation period for the accessory should be determined by the fraud or otherwise of the trustee. The thinking seems to have been that the accessory is equally culpable in all cases of assistance so the same limitation period of 6 years should apply in all cases. In particular that the accessory’s culpability (and the relevant limitation period) is not to be determined by reference to the trustee’s conduct.

That ignores the nature of accessory liability. If the accessory knowingly receives the trust property, to be liable, he will know about the fraudulent nature of the breach of trust if it has occurred. Equally, while an accessory can be liable for dishonest assistance in respect of an innocent breach, if there has been a fraudulent breach, the dishonest assistor will be a party to this and know about it. He is more culpable in these cases. There is no reason to think Parliament would have adopted an inconsistent approach to its treatment of trustees and accessories in this regard. The limitation period ought to reflect this and be the same for claims against the trustee and the accessory.

In addition, on its ordinary reading, nothing in section 21(1)(a) limits it to claims brought against the trustee. This could have been done easily with clear wording had his been Parliament’s intention. Secondly, as Lord Clarke points out, to read section 21(1))(a) in the way proposed by the majority creates an internal inconsistency between subsection 21(1)(a) and s21(3) which cannot have been intended by the draftsman either. If subsection 21(3) is wide enough to catch claims for dishonest assistance then subsection 21(1) must be as well.


An interesting decision and a useful one for its analysis of what is meant by constructive trustee in this context. For practitioners, the key point to note is that the starting point in determining limitation period for claims in knowing receipt and dishonest assistance is 6 years.

Christopher Kelleher

Christopher Kelleher is a barrister at 1 Essex Court practising in the commercial Chancery fields. For more information visit www.

No representation or warranty is given by the author or 1 Essex Court as to the accuracy of the information or opinions contained in this document and no liability is accepted for such information or opinions. This document does not and is not intended to amount to legal advice and is not intended to be relied upon.

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Leasehold guarantees – how not to let your surety off the hook

The recent case of Topland v Smiths [2014] EWCA Civ. 18 serves as a useful reminder of the rule in Holme v Brunskill (1878) LR 3 QBD 495. Landlords and their advisors should bear this case in mind when drafting leases and agreeing alterations. Failure to do so could allow the tenant’s guarantor off the hook.


In 1981 PAT, the landlord, let a commercial property to Payless, the tenant. Smiths were the tenant’s parent company and a guarantor under the lease. The Fifth Schedule to the lease set out Smiths’ covenants. In so far as is material it provided:

“The Lessee shall at all times pay the rent hereinbefore reserved… and that if the Lessee shall make default in the payment of the rent… the Surety will pay and make good to the Lessor on demand all loss damage costs and expenses thereby arising or incurred by the Lessor PROVIDED ALWAYS and it is agreed that notwithstanding any neglect or forbearance on the part of the Lessor to obtain payment of the rent herein reserved or any part thereof when the same shall become payable … shall not release or exonerate or in any way affect the liability of the Surety under this covenant”.

In 1987 the landlord granted the tenant a licence to alter the property. The permitted alterations included opening a wall, building a garden centre, altering a car park and erecting a boundary fence. Smiths were not a party to the licence. In 2001 Topland bought the reversion from PAT.

Payless went into administration and was subsequently dissolved. Topland brought a claim against Smiths, as surety, for unpaid rent in excess of £280,000. Smiths were prima facie liable under the lease but defended the claim relying on the rule in Holme v Brunskill.

The Rule

In Holme the claimant let a farm, together with a flock of sheep. The farm extended to 234 acres and there were 700 sheep. The surety guaranteed the tenant’s obligation to re-deliver the flock of sheep in good condition at the end of the lease. When the flock was re-delivered, however, the sheep were not in good condition. Earlier, in the course of the term, the tenant had made an agreement with the claimant that he would surrender a field of about 7 acres in exchange for a decrease in his rent of £10 a year. The surety had not consented to this variation. The Court of Appeal held the surety was released. The relevant rule was expressed in this way by Cotton LJ:

“if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that if he has not consented to the alteration…if it is not self-evident that the alteration is unsubstantial, or one which cannot be prejudicial to the surety, the Court, will not, in an action against the surety, go into an inquiry as to the effect of the alteration…but will hold that in such a case the surety himself must be the sole judge whether or not he will consent to remain liable”

Common Ground in Topland v Smiths

It was common ground that the licence allowed work to be carried out which would increase the tenant’s obligation to repair under the lease. However, it was agreed there was no increase in the rental burden on the tenant. It was also agreed that if the alterations fell within the proviso to the Fifth Schedule to the lease, as set out above, then Smiths would not be released because they had expressly consented to remain bound in those circumstances.

The Arguments

First Topland argued the rule did not apply as the alteration did not increase the tenant’s obligations under the lease. The lease always envisaged that the tenant’s repairing obligations would be increased if a licence to alter were granted so the surety took this risk. Arnold J easily rejected this argument. The licence did have the clear potential to increase the tenant’s obligations. The lease did not envisage this would bind Smiths without their consent. Consequently the rule was potentially engaged unless the grating of the licence fell within the proviso.

In this regard Topland argued the circumstances fell within the proviso because the grant of the licence either amounted to “forbearance” or “time given” within the meaning of the clause. As to the first of these Arnold J accepted Smith’s arguments, there could only be forbearance where the tenant was in breach and the landlord refrained from enforcing its strict legal rights. The licence was not an example of this. Similarly the licence was not the grating of further time until the landlord could require the tenant to remove works. It was simply permission to carry out the works.

Consequently, the rule in Holme v Brunskill applied and Smiths were released entirely from their obligation under the lease.

Points to Note

Smiths were released from their obligation to pay rent arrears despite the fact the licence to alter did not increase the tenant’s obligation to pay the rent. The rule and the possibility of release is not limited to such narrow alterations.

Secondly, landlords and their advisors should bear in mind the following points when drafting leases or agreeing a licence to alter. Firstly, to avoid letting the surety off the hook landlords should consider excluding the rule in Holme v Brunskill altogether using express words. Secondly, in any event, they should ensure the surety consents expressly to any alteration to the lease and is a party to any licence to alter.

Christopher Kelleher

Christopher Kelleher is a barrister at 1 Essex Court practising in the commercial Chancery fields with a particular focus on property litigation. For more information visit www.

No representation or warranty is given by the author or 1 Essex Court as to the accuracy of the information or opinions contained in this document and no liability is accepted for such information or opinions. This document does not and is not intended to amount to legal advice and is not intended to be relied upon.

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Pro Bono scheme established by Oliver Hyams

Pro Bono Community, a scheme that accredits law students and trainees to give advice at Law Centres and other advice agencies, has been launched by Oliver Hyams, a pupil barrister at 1 Essex Court, and David Dowling, a trainee solicitor at Baker & McKenzie.

Students who complete the first phase of training will be able to take a more detailed module in which they can specialise in a specific area of law such as welfare benefits.

The scheme has the support major law schools and firms including Ashurst, Baker & McKenzie, Bates Wells Braithwaite, CMS, Slaughter and May, Clifford Chance, Freshfields and Hogan Lovells. The Legal Education Foundation is also helping to fund the scheme.

Click here for more information.

or go to

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Relief from sanctions in the post-Jackson CPR – a note by Andrew Wilson

In its recent decision in  Andrew Mitchell MP v News Group Newspapers Limited  [2013] EWCA Civ 1537 (27.11.13) (transcript at the Court of Appeal delivered its much anticipated guidance on how the Courts should and will interpret the amended versions of CPRs 1.1 (2) (f) & 3.9 in the ‘post Jackson’ era. When it did, the message that it delivered was crystal clear; from now on, breaches of rules, practice directions and orders are unlikely to attract relief save in cases of trivial breaches when applications for relief are made promptly (para 40 of the judgment). Trivial can mean different things to different people but in this context it is likely to be interpreted as:

  • A failure of form rather than substance.
  • Where a party has narrowly missed a deadline but otherwise fully complied with its terms.

The Court anticipated that the question of whether a default is “insignificant” or “trivial” is likely to be a fertile battle ground for applications. However that is inevitable.

Other cases, presumably of what will become to be known as “significant’ breaches, will henceforth present applicants with a daunting test:


1.         The burden is on the defaulting party to persuade the court to grant relief.

2.         The court will want to consider why the default occurred.

3.         If there is a “good reason” then the court will be likely to decide that relief should be granted.

Again, the meaning of “good reason” is likely to entertain Masters and District Judges for years to come, but the Court of Appeal did offer some further guidance; If a document is not filed at court because the party or their solicitor suffered from a debilitating illness or was involved in an accident. Depending on the circumstances this may constitute a good reason. Also, later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period appeared reasonable at the time and could not realistically have been the subject of an appeal.

The Court was keen to point out that a solicitor’s debilitating work load will not be a good reason and stressed that applications for an extension of time to meet a deadline will be viewed far more favourably than applications for relief post breach. It went on to say that “good reasons” are likely to be those which are outside the control of the defaulting party and that well intentioned incompetence on the part of the solicitor will not attract sympathy. An inadvertent mistake did attract relief in the pre Mitchell case of Wyche c Careforce, but it is unclear as to whether or not that excuse will survive Mitchell. Don’t count on it!

The Court encouraged the adoption of the same approach that the Courts take in assessing applications for extensions of time to serve claim forms. Hashtroodi v Hancock [2004] EWCA Civ 652 at para 19 offers perhaps the neatest expression of this test.

The decided cases on the new CPR 3.9 prior to the Mitchell decision (including Biffa Waste v Ali Dinler & Ors (2013) LTL 10/10/2013, Fred Perry (Holdings) Limited v Brands Plaza Trading Ltd (t/a Brands Plaza) [2012] EWCA Civ 224, Rayyan Al Iraq Co Ltd v Trans Victory Marine Inc QBD 23/08/13 and Wyche v Careforce Group Plc (2013)QBD (Comm) 25/07/2013) had nearly all contained discussion on the relevance of the old 3.9 criteria to applications. The Court of Appeal cleared all this up once and for all; the old criteria can be considered, but they are incidental to the new 3.9 criteria which are, of course, far simpler and intended to produce an far more robust test than was the case previously.

“We recognise that CPR 3.9 requires the court to consider “all the circumstances of the case, so as to enable it to deal justly with the application”.  The reference to dealing with the application “justly” is a reference back to the definition of the “overriding objective”.  This definition includes ensuring that the parties are on an equal footing and that a case is dealt with expeditiously and fairly as well as enforcing compliance with rules, practice directions and orders.   The reference to “all the circumstances of the case” in CPR 3.9 might suggest that a broad approach should be adopted.  We accept that regard should be had to all the circumstances of the case.  That is what the rule says.  But (subject to the guidance that we give below) the other circumstances should be given less weight than the two considerations which are specifically mentioned.”

Comparing this to the new wording of CPR 1.1 (2) (f) and 3.9:


(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

And 3.9

“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.”

All this, together with the pre-reforms comments of Jackson LJ in Fred Perry and Lord Dyson MR in the 18th Implementation Lecture ‘The application of the amendments to The Civil Procedure Rules’ paras 25-27, suggest that the decision in Mitchell was inevitable and entirely consistent with the rationale behind the recent reforms.

In short, the message is clear; failure to comply with court rules is now likely to result in very serious consequences for solicitors and their clients.

This, and its wider implications are well illustrated by the outcome of an application to strike out a claimant’s claim that I appeared in early last week at Chichester County Court. My client applied to strike out the claimant’s claim as an abuse of process. In a previous action brought by my client against the claimant, the defence and counterclaim were struck out for failure to comply with an unless order. The defendant and his solicitors adopted a rather blasé attitude to this and simply issued a ‘fresh’ claim which they admitted was exactly the same claim as the struck out counterclaim. I advised that an application to strike out the ‘fresh’ claim as an abuse would be on even more fertile ground in the ‘post Jackson’ era as the ‘fresh’ claimant was using his ‘fresh’ claim in part to avoid the now much harder test to achieve relief from sanction, and that that could in itself amount to an abuse of process, in addition to the usual abuse criteria applied in these situations as set out in  Securum Finance v Ashton & Anor. [2001] Ch. 291. We made the application and the District Judge (who knew the Mitchell judgment almost off by heart) agreed, relying heavily on my arguments based on the  Mitchell decision in his judgment.

The message is simple; know your deadlines and meet them. If there is a chance that you will not, seek to obtain extra time. Otherwise, put your tin hat on because that ton of bricks will soon follow.

Andrew Wilson

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New Employment Tribunal Rules applicable where R receives ET1 on or after 29 July 2013

The new Rules are implemented by The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which can be found here:

They effect numerous sensible, substantive changes which anyone conducting cases in the Tribunals should be aware of.

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1 Essex Court will be participating in the London Legal Walk on the 20th June 2013


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Chambers will be participating in this years legal walk. We are raising funds for the London Legal Support Trust, the Free Representation Unit and the Bar Pro Bono Unit.

We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and disabled and fighting exploitation.

We also know how short they are of the funds to continue that work

Our walkers are: Duncan Macpherson, Graeme Kirk, Jamie Williams, Genevieve Parke, Pramod Joshi, Andrew Wilson, Christopher Kelleher, Duncan Richards, Ian Hogg, Bradley Morley, Lloyd Parker, Varun Zaiwalla

Please donate as generously as you are able

Many thanks for your support

Through Virgin Money Giving, you can sponsor us and donations will be quickly processed and passed to charities. Virgin Money Giving is a not for profit organisation and will claim gift aid on a charity’s behalf where the donor is eligible for this. We really appreciate all your support and thank you for any donations.

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LASPO in Practice

The 1st April 2013 saw the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) come into force. Family law practitioners will no doubt by now be very familiar with Schedule 1, and Parts 1 and 2 of the Act, which define the scope of the work for public funding is still available. What will be interesting to observe, is how LASPO will impact upon ongoing and future cases.

One effect that has occurred, as it may have been expected, is the increase in private law applications that were made ahead of 1st April 2013. According to CAFCASS figures released yesterday, there was a 10% increase of cases between April 2012 to March 2013, in comparison to figures between 2011 to 2012. *

Another possible effect may be seen in the way pre April 2013 cases are handled during proceedings. Where a contact case for example, is going well and there appears to be ongoing agreement between the parties, practitioners may nevertheless feel the need to keep a case within the court arena for review. Judges may be keen to make final orders, but keeping the matter open for review would mean the client is still entitled to public funding should a dispute later arise and the matter needed to return to court. Taking this approach could see the average length of private law proceedings increase.

It will be interesting to monitor the trends post April 2013. The Cafcass Chief Executive Anthony Douglas, has said:


Cafcass expects to see a drop in applications over the first few months of the 2013/14 financial year, following the changes. Based on patterns observed from previous policy changes within the family justice system, it is anticipated that levels will normalise after that.”**

Whether that prediction proves correct is yet to be seen. In any event whether it is as a result of an increase in litigants in person, or more review hearings, proceedings may start to take longer to conclude and if so, it will be important that the courts are in a position to bear the impact of such changes.




To sign a petition requesting the restoration of legal aid for private family law matters, click on the following link:


Gloria Ikwuakolam

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