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Interview with<br />
HHJ Kushner QC<br />
Manchester Legal<br />
Awards <strong>2017</strong><br />
Women in Law<br />
Manchester FLBA<br />
News<br />
<strong>April</strong> <strong>2017</strong>
FROM THE LEADER<br />
In Brief<br />
Published in <strong>April</strong>, August &<br />
December<br />
Editor<br />
Elliw Roberts<br />
St Johns Buildings<br />
24-28 St John Street<br />
Manchester<br />
Tel: 0161 214 1500<br />
elliw.roberts@stjohnsbuildings.co.uk<br />
Deputy Editor<br />
Simon Rowbotham<br />
Deans Court Chambers<br />
24 St John Street<br />
Manchester M3 4DF<br />
Tel 0161 214 6000<br />
rowbotham@deanscourt.co.uk.<br />
Leader of the Circuit<br />
Michael Hayton QC<br />
Deans Court Chambers<br />
24 St John Street<br />
Manchester M3 4DF<br />
Tel 0161 214 6000<br />
Adminstrator<br />
Susan Chisholme<br />
Deans Court Chambers<br />
101 Walker Street,<br />
Preston PR1 2RR<br />
DX: 713291 PRESTON 11<br />
Telephone: 0161 660 3848<br />
susan.chisholme@northerncircuit.org.uk<br />
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2 In Brief<br />
Leader’s Column<br />
Michael Hayton QC, Leader of the Northern Circuit<br />
From the moment that it was<br />
announced that I was to take over<br />
from Andrew O’Byrne QC as<br />
Leader of the Northern Circuit, I<br />
started to receive many emails,<br />
texts and even the occasional old<br />
fashioned letter of<br />
congratulation. I also received<br />
many more messages<br />
commiserating with me for the<br />
burden that I was taking on. The<br />
commiserations were misplaced;<br />
so far, I am enjoying almost every<br />
minute. However, happily for<br />
me, and typical of the Northern<br />
Circuit, I received a huge number<br />
of offers of assistance should I<br />
need it. I can assure all those that<br />
made those offers that I am<br />
hugely grateful and I am afraid<br />
that I have every intention of<br />
taking all of you up on your<br />
kindness.<br />
It is a huge privilege to be Leader<br />
and I fully appreciate that I have<br />
big shoes to fill. OB has steered<br />
the Circuit through some difficult<br />
times over the last three years<br />
with characteristic assuredness<br />
and in his inimitable understated<br />
fashion. Many of the previous<br />
Leaders have reputations that,<br />
frankly, I find terrifying to be<br />
mentioned in the same breath as.<br />
I can do no more than promise to<br />
do my best and try not to let you<br />
all down.<br />
My early days have been<br />
considerably assisted by Oriel<br />
Chambers’ Rebecca Jones, the<br />
outgoing Junior. Rebecca has<br />
organised some excellent messes<br />
and has ensured that I have been<br />
in the right places at the right<br />
times, as well as being excellent<br />
company. I have little doubt she<br />
is a star in the making. She has<br />
my sincere thanks as she now<br />
hands her role over to Harriet<br />
Tighe of Deans Court Chambers.<br />
Hatty survived a pupillage with<br />
my sister Virginia, and by<br />
comparison I am sure I will be<br />
very low maintenance. I am<br />
confident that she will be an<br />
excellent Junior and I wish her<br />
well.<br />
Another new holder of high and<br />
honourable office on Circuit is<br />
my greatest friend from Bar<br />
School, Lisa Roberts QC. Lisa is<br />
the new Attorney General, the<br />
first female holder of that title in<br />
the Circuit’s 800 year history and<br />
a huge improvement on her<br />
predecessor. No false modesty<br />
there I can promise you. For<br />
those of you who attended either<br />
of this term’s Grand Courts and<br />
heard her Silks’ Speeches, you<br />
will already be aware of the high<br />
quality after dinner advocacy<br />
that we can expect from her in<br />
the future. I am delighted, in<br />
every way, to have her alongside<br />
me on the Circuit Executive<br />
Committee.<br />
As we welcome new incumbents<br />
to their new roles, we also say<br />
goodbye to some Circuit fixtures.<br />
We have recently said farewell to<br />
some of the Bar’s favourite<br />
judges. Court 7 at Minshull Street<br />
was standing room only to see<br />
His Honour Judge Mort off into<br />
retirement and the following day<br />
the CJC had to arrange<br />
proceedings to be beamed to an<br />
overflow court to ensure all those<br />
that wanted to see Her Honour<br />
Judge Linsey Kushner QC and<br />
His Honour Judge Philip Raynor<br />
QC’s valedictories. These three<br />
are huge losses for Circuit. Each<br />
in their own way have been as<br />
well liked as individuals as they<br />
have been well respected as<br />
Judges. Circuit wishes all three of<br />
them long and happy retirements<br />
and hopefully we will see them<br />
at mess in the future.<br />
On a very sad note, Crown<br />
Square has lost one of its longest<br />
serving and best loved members<br />
of staff with the untimely and<br />
tragic death of Diane Ekgren,<br />
who was Catering Assistant for<br />
32 years. Generations of Bar and<br />
Bench have been looked after by<br />
Diane who was always as<br />
cheerful as she was helpful and<br />
caring. Our thoughts are with her<br />
parents.<br />
There are various issues<br />
nationally that are causes of<br />
ongoing concern. New proposed<br />
fee schemes in civil and crime<br />
have been occupying much time<br />
on the various Bar Council<br />
Committees that I have been<br />
attending. I will continue to keep<br />
you all updated on developments<br />
as and when they occur. A split<br />
court times scheme is being<br />
piloted, happily not on the<br />
Northern Circuit; for once. This<br />
has profound and various<br />
implications for all sorts of<br />
practitioners and chambers, not<br />
least those with child care<br />
obligations. Again I can assure<br />
Circuit that a great deal is being<br />
done behind the scenes and<br />
hopefully it is not something that<br />
will trouble us on Circuit in the<br />
future.<br />
Finally, whilst I will endeavour to<br />
keep on top of the wide variety of<br />
issues that arise as and when they<br />
do, inevitably there will be things<br />
that escape my attention.<br />
Therefore, all members of Circuit<br />
should feel free to contact me<br />
should you feel that there is<br />
anything I should know or<br />
anything that you think that I can<br />
help you with. That is what I am<br />
here for.<br />
Michael Hayton QC
EDITORIAL<br />
From the Editor<br />
Elliw Roberts, St Johns Buildings<br />
First and foremost in this edition, it is a very great pleasure to<br />
welcome Michael as the new Leader of the Northern Circuit and, as<br />
such, the newest member of the In Brief team! I look forward to<br />
working with you during your term as Leader.<br />
There are several people who deserve our congratulations in this<br />
edition: we congratulate Sam Karim QC, Kings Chambers, Louis<br />
Browne, Exchange Chambers and David McLachlan QC, 7<br />
Harrington Street on their appointment as Queen’s Counsel. The<br />
appointment is an incredible achievement and a testament to their<br />
talent and commitment to the work they do. We extend our warmest<br />
congratulations to them.<br />
At the same time, we congratulate His Honour Judge Mort, Her<br />
Honour Judge Kushner QC and His Honour Judge Raynor QC on<br />
their retirement. I echo Michael’s sentiments that their presence on<br />
the bench will be sorely missed by members of the Circuit and<br />
beyond and we very much look forward to welcoming them at Mess<br />
following a well-deserved period of rest! Please take a moment to<br />
read our interview with HHJ Kushner QC at pages 6 and 7 of this<br />
Edition and peruse the photos of the retirement party held in honour<br />
of HHJ Kushner QC and HHJ Raynor QC at the Civil Justice Centre<br />
on the 6 <strong>April</strong> <strong>2017</strong>.<br />
Last, but certainly not least, congratulations to those who<br />
successfully completed the Christmas crossword (solutions can be<br />
found at page 15)!<br />
In this Edition, we thank Rebecca Jones of Oriel Chambers for her<br />
service to the Circuit as Circuit Junior and welcome the appointment<br />
of Harriet Tighe of Deans Court Chambers as the new Circuit Juniorwe<br />
thank Harriet for taking up the mantle and wish her the very best<br />
of luck.<br />
On a much more sombre note, at this time we must record the<br />
passing and remember Sir Nicholas Wall who, as the Family<br />
Division Liaison Judge for the Northern Circuit, was held with great<br />
affection on Circuit. Sir Nicholas will be greatly missed and our<br />
thoughts are with his family and friends.<br />
Finally, I hope you all had a wonderful Easter and the few days’<br />
respite that comes with it.<br />
See you in the summer.<br />
In Brief<br />
Needs You<br />
Has your Chambers featured<br />
in the Legal 500?<br />
Do you have something to<br />
share with other members of<br />
the Circuit?<br />
Have you taken part in a<br />
specialist Bar event?<br />
Have you participated in an<br />
interesting or unusual case?<br />
Do you have a new Tenant?<br />
Have you raised funds for a<br />
local charity?<br />
Share your news with other<br />
members of the Northern<br />
Circuit.<br />
All members’ contributions<br />
to In Brief warmly<br />
welcomed.<br />
Please send your article (and<br />
photos with captions where<br />
appropriate) to the Editor,<br />
Elliw Roberts<br />
elliw.roberts@stjohnsbuildings.co.uk<br />
Photographs should be<br />
provided in the highest<br />
resolution possible to ensure<br />
good reproduction<br />
Elliw Roberts<br />
St Johns Buildings<br />
Deadlines for <strong>2017</strong><br />
10th July for August <strong>2017</strong><br />
10th November for Dec <strong>2017</strong>
CIRCUIT NEWS<br />
Manchester Legal Awards <strong>2017</strong><br />
Lincoln House Chambers were delighted with their Deputy Head of<br />
Chambers Kate Blackwell QC’s, success in winning the ‘Barrister of<br />
the Year’ award at the Manchester Legal Awards <strong>2017</strong>. The award<br />
follows an impressive year for Kate, most notably after leading the<br />
prosecution of Adam Johnson (the ex-premiership and England<br />
footballer) in March 2016, and successfully responding on behalf of<br />
the Prosecution to his application for leave to appeal his conviction<br />
and sentence in March <strong>2017</strong>.<br />
Upon receiving the award, Kate said “I was delighted to see that the<br />
shortlist were all women and it is a step in the right direction. I think<br />
that women can give so much to the profession; they have a sense<br />
of empathy that really shines through, especially in sensitive cases”.<br />
Director of Clerking, David Wright, commented that “It’s fantastic<br />
to see Kate’s hard work and dedication to her clients, and the<br />
profession, being recognised with such an award. She is a brilliant<br />
barrister who gets great results with every case that she takes on.”<br />
The Awards also saw Deans Court Chambers win the Chambers<br />
Award. Craig Sephton QC, Head of Chambers commented: “We are<br />
delighted and grateful to the Manchester Law Society for this award.<br />
It’s a splendid occasion and a tribute to our selection procedures.<br />
Over the years we have consistently produced great barristers, loyal<br />
staff and clerks to get the best results. They make me proud to lead<br />
the Chambers.”<br />
Kate Blackwell QC with Jon Hainey, President of<br />
Manchester Law Society and Tony Rollason of<br />
Landmark<br />
“Deans Court are delighted to have won the Barristers Chambers of<br />
the Year award again. This was the third time we have won this<br />
award in 5 years and represents a fantastic achievement that reflects<br />
our standing in the market and the value we seek to add to our<br />
Clients.<br />
“Over the past year our members have been involved in many high<br />
profile cases including Mary O’Rourke, who represented Dr Eva<br />
Carneiro in her battle with Chelsea FC; Sophie Cartwright who is<br />
instructed as junior counsel to The Grainger Inquiry; and Tim<br />
Horlock and Paul Higgins who appeared in the Court of Appeal case<br />
of Qader v Esure.<br />
“We would particularly like to thank all our clients because without<br />
their support this would not have been possible.”<br />
Craig Sephton QC with Jon Hainey, President of<br />
Manchester Law Society<br />
Vulnerable Witness Training<br />
Would all criminal practitioners on the Northern Circuit please<br />
note it is anticipated that there will be a national roll-out of<br />
Vulnerable Witness Training commencing in <strong>2017</strong>. This will be<br />
essential training for anyone practising in the criminal courts who<br />
professes to be competent in witness handling. Whilst it represents<br />
a sea-change in the approach to vulnerable witnesses, having<br />
done the training, the essential skills are not novel, but a reminder<br />
of best-practice. They are easily within the grasp of any criminal<br />
practitioner who takes the art of advocacy seriously. The skills are,<br />
in truth, an opportunity to iron out creases in performance and get<br />
rid of bad habits. The focus is on asking the essential questions -<br />
which must be prepared in advance - in a clear and simple way,<br />
and understanding the witness’ needs.<br />
The Northern Circuit has already put steps in place to galvanise<br />
this training and garner support for the scheme. Further<br />
announcements will be made shortly, including details of when,<br />
where and how the training is to be facilitated and cascaded to<br />
Circuit members.<br />
If you would like any further information in the interim, please<br />
contact either myself at Harrington Street Chambers in Liverpool<br />
or Simeon Evans at St Johns Buildings.<br />
Andrew Ford<br />
7 Harrington Street<br />
4 In Brief
On Thursday, 16 March <strong>2017</strong>, the Midland Hotel in Manchester<br />
hosted Women in the Law UK’s first event of <strong>2017</strong>, which was as<br />
ever both impressive and inspiring, as were the guests of honour: the<br />
Rt. Hon Lord Neuberger, President of the Supreme Court<br />
accompanied by Lady Neuberger.<br />
CIRCUIT NEWS<br />
Women Barristers and UKAWJs. Next years event is already being planned with to be even<br />
better with rumours of Mrs Justice Andrews or the first female in the Supreme Court if once is<br />
appointed.<br />
Women in The Law UK, have another Until next time, resounding success<br />
Sally Penni Barrister at Law Kenworthys Chambers Manchester.<br />
with Be Bold for Change message Vice chair of on Association Diversity of Women Barristers from<br />
NED and 50 Power List NWP <strong>2017</strong><br />
President of the Supreme Court 16.03.<strong>2017</strong> in Manchester.<br />
The event was another resounding success for Women in the Law<br />
UK. With guests being drawn from the judiciary, the Bar, solicitors<br />
and legal academics, both men and women, the event was a sellout<br />
with a healthy waiting list to boot; it was, indeed, the hottest ticket<br />
in Manchester. As testament to that fact, many of the Circuit’s<br />
judicial stars were out in force, including the Recorder of<br />
Manchester, HHJ Stockdale; Mrs Justice Andrews; HHJ Henandez;<br />
HHJ Manley; HHJ Goddard QC; HHJ Nicholls (Liverpool’s first<br />
female judge in crime); HHJ Newton, Designated Family Judge for<br />
Manchester; and Sir Mark Hedley. Many solicitors were in<br />
attendance as well as special guests from the worlds of Commerce<br />
and the Arts Industry.<br />
Established in 2012 and now in its fifth year, Women in the Law UK<br />
has enjoyed an impressive list of past speakers, which to date<br />
includes Lady Hale of Richmond, Mrs Justice Cox DBE (President of<br />
the Association of Women Barristers) and Lady Justice Hallett DBE.<br />
On this occasion, it was Lord Neuberger’s turn and his Lordship<br />
opted to speak on the importance of diversity in the judiciary, which<br />
was followed by a question and answer session with the audience.<br />
With a message in keeping with the theme for International<br />
Women’s Day <strong>2017</strong> – be bold for change – the evening was hosted<br />
by Sally Penni of Kenworthy’s Chambers, Vice-Chair of the<br />
Association of Women Barristers. Music was provided by<br />
Manchester Inspirational Voices (winners of the BBC Songs of Praise<br />
Gospel Choir of the Year award in 2016), with additional<br />
performances from Nigel Poole QC of Kings Chambers and Wayne<br />
Ellington.<br />
L-R Lisa Roberts QC Lincoln House Chambers,<br />
The Rt. Hon. Lord Neuberger, Sir Mark Hedley and Sally Penni.<br />
L-R Lisa Roberts QC Lincoln House Chambers and sponsors, The Rt.Hon. Lord Neuberger<br />
Supreme Court, Sir Mark Hedley and Sally Penni.<br />
3<br />
The evening concluded with a raffle. That evening, a total of £1,068<br />
was raised to be split between three charities: Breast Cancer Prevent,<br />
Royal Free Hospital and the RMCH.<br />
To find out more about upcoming events or to join Women in the<br />
Sponsors from Close Brothers, The RT Hon Recorder of Manchester David Stockdale, Rebecca<br />
Law UK, please email womeninthelaw2012@gmail.com. Next<br />
year’s event is already being planned, with rumours circling evenDurrant L-R, Crowe HHJ whithall D Henandez, Clark, Tax Partner DJ guest Stuart, from Sally Industry, Penni, Elizabeth HHJ Portier L Newton, BNY Mellon,<br />
now as to who the next guest speaker will be.<br />
L-R, HHJ D Henandez, DJ Stuart, Sally Penni AWB, HHJ L Newton, Sir Mark Hedley, retired<br />
Josephine Sir Fay Mark ex solicitor Hedley, now HHJ at Close D Brothers. Eaglestone, Abi Holt, Lincoln House<br />
Judge D Eaglestone, Immigration Chambers Judge and Abi Lisa Holt Splaine, Lincoln House solicitor. and Lisa Splaine solicitor.<br />
Until next time,<br />
Sally Penni<br />
Kenworthy’s Chambers<br />
Photos by Bill McGloghlin<br />
4<br />
The Right Hon Lord Neuberger, HHJ Roddy and Sally Penni<br />
The president, Lord Neuberger , HHJ Roddy and Sally Penni<br />
In Brief 5
INTERVIEW<br />
An Interview with HHJ Kushner QC<br />
This spring the Northern Circuit bids farewell to a much-loved Judge and colleague on<br />
both the Family and Criminal bench: Her Honour Judge Kushner QC. Amongst the first<br />
family silks on Circuit, HHJ Kushner QC has been a leader in her field throughout her<br />
career and was trailblazing until the very end. In Brief met with the Judge to find out<br />
her response to those sentencing remarks and what retirement has in store for her…<br />
In brief<br />
Year of Call 1974<br />
Year of Silk 1992<br />
Year of appointment to the Circuit Bench 2000<br />
Alma mater University of Liverpool<br />
Who or what inspired you to a career in law?<br />
My father was a Senior District Judge for 28 years and I always knew<br />
that he would have loved me to become a lawyer but, initially, I was<br />
going to study languages at university. That changed one day when,<br />
as I was fiddling over some small translation point, an inspirational<br />
teacher said to me “do you know, Lindsay, you’d make a very good<br />
lawyer: you never give up and you have great attention to detail.” I<br />
had always liked the idea of something practical and theoretical and,<br />
from there, the idea to become a lawyer gelled so I went to Liverpool<br />
to study law.<br />
What would you have otherwise been, if not a lawyer?<br />
I don’t have the faintest idea. It would have been nice to study<br />
languages at university but, once the idea to become a lawyer was<br />
in my head, that was it and it just felt right. Over the years I’ve had<br />
students on work experience ask me about a career in law and I<br />
always say to them: if something else will do, do it, but if you feel as<br />
though nothing else will do, you must go for it and that’s what I did.<br />
What interested you in family law?<br />
hours. After that, whenever I was considering whether or not to<br />
appeal, there was only one test I would apply: would I be able to<br />
keep up my end in front of Ormrod LJ? I didn’t necessary have to<br />
feel I would win but, if questioned, did I have answers? If I did, then<br />
I would appeal. That test served me quite well.<br />
I was a pupil to Charles Bloom, which was a lucky break, but when<br />
I first started I did a little bit of everything (except for Landlord and<br />
Tenant, which I tried to avoid!)<br />
My first care case came in May 1975 and I remember it like it was<br />
yesterday. I was for the parents who were Chinese and they gave<br />
their evidence through an interpreter. When the father was giving<br />
his evidence he was so emotional that he was crying, the interpreter<br />
was crying and I could feel myself going too. Since then, of course,<br />
I’ve heard the same evidence time and time again but, as it was my<br />
first case, I was very moved by it.<br />
I was very lucky in my second care case, Dame Joyanne Bracewell<br />
QC had received instructions from Wigan Council and she came to<br />
me and “Lindsay, you’ve been in a care case haven’t you?” and I<br />
replied “well, yes, one…”, When I went back into my room later that<br />
day there was a clip file on my desk with a note which read “you are<br />
my junior in this case” and that was care case number two!<br />
A few years later came all the wardship cases and I was in the High<br />
Court a lot, even though I was very junior, so although I had started<br />
in Chambers saying that I wasn’t going to do family just because I<br />
was a woman, it just so happened that it suited me and so I did.<br />
What were the highs and lows of your career at the Bar?<br />
I’m sure there are plenty of lows but getting pasted in the Court of<br />
Appeal was one! I was there appealing against an Adoption Order<br />
and one of the Judges was Ormrod LJ, who savaged my case for<br />
6 In Brief<br />
As for highlights, being there at the beginning of the family care work<br />
was quite something and also appearing in the House of Lords and<br />
it going well. As a student, I dreamt of being in the House of Lords<br />
when they were interested and debating something important. I’ve<br />
had that and it was great.<br />
What made you want to become a Judge?<br />
Silk came first and, initially, it hadn’t been my intention to apply.<br />
Joyanne sent a message through my pupil master telling me to apply,<br />
so I did, and I got the letter to say that I had been successful on my<br />
40th birthday. I was frantically busy, especially after the Children<br />
Act 1989 came into force, and - in silk - every case you do is high<br />
pressure. So after eight years, and having been to the House of Lords<br />
twice as a junior and twice as a Leader, I thought it was the right time<br />
to go just as now is the right time to retire.<br />
During you career on the bench you sat in both Crime and Family,<br />
how is life different for a Judge sitting in the Criminal Court and in<br />
the Family Court?<br />
Every Judge has their own, individual style and, in the Family Court,<br />
I’m prepared not to be too formal if necessary. In the Criminal<br />
Court, though, one has to be very careful because it’s in public, the<br />
press can be there and there is a jury so you’re not making the<br />
decision, you’re just delivering the material.<br />
You’ve been in the national press recently following your sentencing<br />
remarks in your last criminal case. Have you been surprised by the<br />
press attention?
INTERVIEW<br />
Yes. I knew the press were there and I thought it would perhaps<br />
interest the Manchester Evening News but I did not expect phone<br />
calls from family members in New Zealand, South Africa and<br />
Australia telling me they had seen me on the news.<br />
Although there has been a lot of negativity in the press, which I half<br />
expected, on the whole the general reaction has been good. The<br />
young woman, Megan, has since been on television to speak about<br />
it. I was pleased that she said she didn’t feel she was criticised<br />
because that was hugely important to me.<br />
In the BBC interview she said that, because of her experiences, she<br />
would not go through the trial process again. Do you think there is<br />
a place for pre-recorded cross examination of victims of sexual<br />
abuse?<br />
Pre-recorded cross examination of children is being piloted in some<br />
areas at the moment and, depending on how that goes, it may well<br />
take off but it’s not without its difficulties. For example, in these<br />
trials a lot of disclosure comes in quite late and things can change<br />
on a pin head, so pre-recorded evidence causes difficulties in<br />
dealing with that late disclosure.<br />
If it is rolled out for children and that goes well then they may start<br />
looking at it for adults too. Assuming all the disclosure issues are<br />
addressed, and everything is there that would be there if the trial was<br />
going ahead live, I have no difficulty in pre-recorded evidence.<br />
Having said that, there are so many different aspects to these sexual<br />
cases and the counter consideration, of course, is how we should<br />
treat defendants and how to protect the falsely accused.<br />
Are there any further comments that you wish to make about this<br />
issue or do you feel that your remarks said it all?<br />
I could go on for years about this but, for now, yes it said it all. It<br />
sounds terribly trite but the object of it all was to make people think<br />
a little bit, which I hope it has.<br />
Manchester FLBA<br />
The retirement of two popular judges, HHJ Raynor QC and HHJ Kushner<br />
QC, was marked with an event at Manchester Civil Justice Centre on 6<br />
<strong>April</strong>. Philip Raynor QC was a leading ancillary relief practitioner, who<br />
initially sat on family and civil cases after his appointment to the Circuit<br />
Bench; in later years he also sat on administrative matters in the<br />
Divisional Court.<br />
Lindsey Kushner QC specialised in all areas of family law at the Bar, with<br />
a strong emphasis on complex family cases involving the welfare of<br />
children. As a Circuit Judge she sat on crime and family cases.<br />
Both judges will be missed by those who had the pleasure of appearing<br />
before them. Each combined a keen intellect with a very “down to Earth”<br />
and approachable style. HHJ Kushner QC would do all that she could to<br />
ease the stress upon vulnerable parents in family cases on some<br />
occasions leaving the bench to sit beside an anxious party to<br />
proceedings, and then talking to them to assist the process of their giving<br />
the best evidence they were able to. Always warm and good humoured,<br />
her direct and sensible approach endeared her to professionals and<br />
public alike.<br />
In other news, members travelled to Dublin for the Four Jurisdictions<br />
conference, where continuing education was interspersed with fine<br />
dining and Irish dancing.<br />
Child Concern, which brings together professionals working in family<br />
law, has continued to provide training events on a regular basis,<br />
including a day seminar on Recent Innovations in Family Justice and<br />
Protection, at which the President of the Family Division, Sir James<br />
Munby was the key note speaker. Please note that the Child Concern<br />
Ball will take place at the Radisson Blu Edwardian hotel on 17 June <strong>2017</strong><br />
and tickets are now on sale.<br />
Samantha Birtles<br />
18 St John Street<br />
Looking back at the end of your career, what advice would you give<br />
to someone starting their career at the Bar today?<br />
If you need to do it, go for it. Being part of the Bar, and I still<br />
consider myself a barrister, is something that, unless you are a<br />
barrister, you will never be able to understand. It’s magic.<br />
I regret that, through various governmental moves, the Bar has been<br />
weakened - if not semi-destroyed - and I regret that there is a sharp<br />
division between the publicly funded and the privately-paying work,<br />
which has robbed us of quite a few people. It shouldn’t have to be<br />
a vocation to do publicly funded work but it is.<br />
What, if anything, will you miss about life on the bench?<br />
The people: the lawyers are great, the staff here are fantastic and the<br />
Judges I work alongside are people with whom I’ve enjoyed<br />
professional and personal life with for decades. That’s very precious<br />
and it’s been a tremendous ride.<br />
HHJ Kushner QC and HHJ Raynor QC<br />
Photo by Howard Barlow (www.howardbarlow.com)<br />
What next?<br />
Cooking, gardening and I’m going to learn new life skills. I’m<br />
already good at clearing the drains but I would like to learn some<br />
carpentry, plumbing and how to make an appointment at the<br />
doctors!<br />
Photo by Howard Barlow (www.howardbarlow.com)<br />
In Brief 7
LAW UPDATE<br />
Criminal Law Update<br />
Tsekiri and DNA cases:<br />
Reversing the burden?<br />
Historically the Court of Appeal has shown a willingness to quash<br />
convictions based solely on DNA evidence linking the defendant to the<br />
offending Act. As recently as 2015 in the case of Bryon, a case without<br />
anything more than a mixed DNA match for the defendant, it is clear that<br />
the conviction would have been quashed but for the supporting bad<br />
character evidence.<br />
The recent case of Tsekiri highlights the Court's awareness of the<br />
advances in DNA technology, although some may feel that it hints at<br />
reversing the burden to the defendant, for him to explain where he was<br />
at the time of the offence or as to how his DNA became present at the<br />
scene of an offence.<br />
In June 2016 the complainant in the Tsekiri case was subjected to a<br />
robbery outside Wimbledon Park tube station. She left the station and<br />
walked the short distance to her car, which was parked close to the<br />
station. She entered into the driver's side of the vehicle and prepared to<br />
drive away but, before she could do so, a man from outside the vehicle<br />
opened the driver's door and robbed her of a gold necklace.<br />
Swabs were taken from the exterior driver's door handle,which<br />
undoubtably was touched by the offender in order to commit the<br />
offence. A mixed DNA result was obtained and the examining scientist<br />
concluded that the profile consisted of components relating to a single<br />
major contributor and to at least one minor contributor. The DNA from<br />
the major contributor was consistent with the DNA profile of the<br />
appellant. The match probability was 1:1 billion.<br />
The scientist could not say when the the DNA had been deposited, nor<br />
could he identify the source of the DNA, such as blood or saliva. The<br />
scientist even conceded that the deposit could have been due to<br />
secondary transfer, i.e. the appellant having touched another person<br />
who had then touched the exterior door handle. However, the scientist<br />
considered that secondary transfer was unlikely given that the DNA in<br />
question was the major contributor.<br />
There was no other evidence linking the appellant to the offence. When<br />
interviewed under caution he exercised his right to silence, and the<br />
complainant failed to identify him during the course of an identification<br />
procedure.<br />
At the conclusion of the prosecution case there was a submission of no<br />
case to answer on the basis that no reasonable jury properly directed<br />
could convict on the available evidence. This submission was rejected<br />
and the appellant was convicted.<br />
On appeal, the Court of Appeal placed heavy emphasis on the recently<br />
decided case of FNC and its conclusion that DNA that had been directly<br />
deposited in the course of the commission of a crime by the offender,<br />
and specifically a very high DNA match with the defendant, would be<br />
sufficient without more to give rise to a case for the defendant to answer.<br />
In placing this reliance on FNC, the Court rejected the approach taken<br />
in Bryon in 2015 and noted that the techniques of DNA analysis have<br />
improved markedly in the last decade, so what was insufficient scientific<br />
evidence a decade ago will not necessarily be insufficient now.<br />
The Court also stressed the importance of the fact that the DNA had been<br />
left on an article at the scene of the crime before posing a number of<br />
relevant questions:<br />
1. Is there any evidence of some other explanation for the<br />
presence of the defendant's DNA on the item other than<br />
involvement in the crime?<br />
2. Was the article apparently associated with the offence itself?<br />
3. How readily moveable was the article in question?<br />
While some may view this as the<br />
Court of Appeal forcing the<br />
defendant to provide an explanation<br />
as to the possibility of secondary<br />
transfer, the reality is that the Court<br />
is simply acknowledging that testing<br />
of DNA has advanced in recent years<br />
and is now sufficient as evidence<br />
alone to convict a defendant in<br />
certain circumstances.<br />
4. Is there evidence of some geographical association between<br />
the offence and the offender?<br />
5. In the case of a mixed profile, is the DNA profile that<br />
matches the defendant the major contributor to the overall<br />
DNA profile?<br />
6. Is it more or less likely that the DNA profile attributable to the<br />
defendant was deposited by primary or secondary transfer?<br />
The Court was keen to stress that this list was not exhaustive but that<br />
each case will depend on its own facts. The crucial point is that there is<br />
no evidential or legal principle to prevent a case solely dependant on the<br />
presence of a defendant's DNA profile on an article left at the scene of<br />
a crime being considered by a jury.<br />
It is question one that will give defence advocates the most cause for<br />
concern. The Court of Appeal suggests that if in interview the defendant<br />
gives an apparently plausible account of the presence of his DNA<br />
profile, that might indicate that the prosecution had not raised a case to<br />
answer. On the other hand, the total absence of any explanation would<br />
leave the evidence of the defendant's DNA unexplained. Ultimately the<br />
Court concluded that the absence of any explanation in such a case<br />
would mean that there would be no material to undermine the<br />
conclusion to be drawn from the DNA evidence.<br />
Tactically, this is of significance as in cases of this nature a defendant<br />
would consider not giving evidence and simply putting the prosecution<br />
to proof. It is clear, however, that in the absence of an explanation in<br />
interview and nothing by way of explanation in the defence statement,<br />
this will not be sufficient to guarantee a successful submission at half<br />
time as might previously have been the case.<br />
While some may view this as the Court of Appeal forcing the defendant<br />
to provide an explanation as to the possibility of secondary transfer, the<br />
reality is that the Court is simply acknowledging that testing of DNA has<br />
advanced in recent years and is now sufficient as evidence alone to<br />
convict a defendant in certain circumstances.<br />
Laura Nash<br />
St Johns Buildings<br />
8 In Brief
The Rule of Law or the Rule of Lawyers?<br />
A reflection on the ‘Miller’ case<br />
NEWS<br />
In the December issue of ‘Counsel’ magazine the outgoing Chairman of<br />
the Bar called for a defence of the Judiciary. This was in the aftermath<br />
of media criticism of the High Court following its decision in the ‘Miller<br />
case’ concerning whether the Government could trigger Article 50 to<br />
leave the European Union following the Brexit referendum.<br />
Subsequently I, like every other Barrister, received an email from the Bar<br />
Council also stressing the Bar Councils defence of the Independence of<br />
the Judiciary and the Rule of Law.<br />
Whilst I certainly do not defend the media description of High Court<br />
Judges as ‘Enemies of the People’, we in the legal profession do perhaps<br />
need to recognise that the essence of the criticism was justified. In the<br />
‘Miller’ case the Courts were overstepping their role and were interfering<br />
in a political rather than a legal argument. The Rule of Law does not<br />
mean the Rule of Lawyers and that means that the Judiciary should not<br />
overreach their role and should respect the separation of powers and this<br />
they failed to do in ‘Miller’.<br />
Frankly, the argument as to whether or not the decisions in the Miller<br />
case were right or not misses the point; the case should never have been<br />
allowed to proceed in the first place. The decision whether the UK<br />
should leave the EU was the supreme example of a Political decision and<br />
the parties in the Miller case had no specific interest in that decision over<br />
and above the interests of every other UK citizen. In R v Monopolies<br />
and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763<br />
Lord Donaldson MR memorably said that applications for Judicial<br />
Review should be refused where an applicant had no specific personal<br />
interest in the issue 'and was, in truth, no more than a meddlesome<br />
busybody', a description that could well be held to apply to the<br />
applicants in the Miller case. Unfortunately, the High Court in the Miller<br />
case ignored Lord Donaldson’s wise words and permitted the Law to be<br />
misused as a weapon in an essentially political argument, so turning<br />
what was a political debate into Jarndyce v Jarndyce.<br />
It is either naive or disingenuous to state that the Miller case merely<br />
revolved around legal questions as if the judiciary and the Courts live in<br />
an Olympian detachment from the affairs of mere mortals. The Courts<br />
were being used as Political weapons by people whose only claim to a<br />
hearing was that they could afford the legal costs. It was a corruption of<br />
the political process which was permitted and facilitated by the Courts.<br />
The principle of the separation of powers is fundamental to the exercise<br />
of democracy but that requires each branch to respect its limitations as<br />
well as its powers. For the judiciary to interfere in essentially Political<br />
arguments is a breach of this principle. If there was a real argument<br />
between Parliament and the Executive as to where the power lay to<br />
execute Article 50 then that could and should have been dealt with by<br />
Parliament exercising its powers to pass laws and if necessary to vote<br />
down the Government. Where there is no conflict between Parliament<br />
and Government then there is no justification for the Courts to interfere<br />
at the arbitrary request of a non representative third party.<br />
The judiciary are certainly not the ‘enemies of the people’ but they may<br />
inadvertently become the enemies of the rule of law if they are seen to<br />
overstep their proper role. The judiciary is the only part of Government<br />
that is not subject to Democratic accountability and that answers to no<br />
other authority. Unlike appointments to the US Federal Judiciary,<br />
appointments to the UK Supreme Court are not subject to Parliamentary<br />
approval. The Judges do however, need to accept that they cannot<br />
expect to exercise American-style judicial power whilst retaining<br />
traditional English Judicial deference. ‘Qui Custodet Ipsos Custodes’, is<br />
an old question but it is one that needs to be asked in every generation;<br />
mere platitudes about the rule of law and judicial independence will not<br />
suffice. Either the judiciary controls itself and restrains from cases which<br />
merely interfere in purely political arguments or the demands for control<br />
of the judiciary will increase and that will have more implications for the<br />
rule of law than merely unpleasant newspaper headlines.<br />
Neil Addison<br />
New Bailey Chambers<br />
This article is written in a purely personal capacity<br />
THE UK ASSOCIATION OF WOMEN JUDGES<br />
**Dates for your diary**<br />
ANNUAL CONFERENCE and<br />
NOTICEOF AGM, BRISTOL<br />
OUTREACH EVENT, BIRMINGHAM<br />
Friday 12 May <strong>2017</strong><br />
The UKAWJ has arranged outreach events in Portsmouth and Belfast<br />
in previous years which have worked well. They give law students<br />
an opportunity to hear from the UKAWJ President Baroness Hale,<br />
followed by a "meet the judges" panel session. This year the outreach<br />
event will be held at the Birmingham Civil Justice Centre, and we<br />
will be followed by a dinner in the evening to promote the<br />
association. This event will also provide an excellent opportunity for<br />
members to meet with local judiciary, barristers, solicitors and<br />
academics. The panel event will be followed by dinner at San<br />
Carlos. For further details re venues, costs and membership/ booking<br />
forms please contact the membership secretary:<br />
DJ.Mathangi.Asokan@eJudiciary.net<br />
Friday 03 November <strong>2017</strong><br />
The UKAWJ theme of “Religion, Culture and the Law” continues<br />
this year. Following the success of the 2016 Annual Conference in<br />
Manchester, we will be considering these issues further across a<br />
range of jurisdictions and subjects. This will be the focus of the<br />
annual conference on Friday 03 November, which will be held in<br />
Bristol. The AGM of the association will also take place on 03<br />
November. The dinner will be held on Thursday 02 November.<br />
Further information regarding the venues, speakers, costs and<br />
booking forms for each event will be sent out in due course. But<br />
please book the date in your diaries now!<br />
We appreciate that the notice for the Outreach event is shorter than<br />
for the Annual Conference - but we very much hope to see you at<br />
one/ other - or both!<br />
Christine Bispham<br />
7 Harrington Street<br />
In Brief 9
WITNESSES<br />
The Fallible Witness:<br />
recent cases on evidence<br />
The way witness evidence is analysed as part of the trial process seems<br />
to have changed dramatically over the last couple of years, with the<br />
introduction of the ‘fundamental dishonesty’ regime in personal injury<br />
claims – and its attendant impact on the recoverability of costs in those<br />
cases – being substantially responsible. Judges are now routinely asked<br />
to find that the evidence of a witness who failed to come up to proof is<br />
‘fundamentally dishonest’ and effectively to tar the claim that relied on<br />
it with the brush of fraud despite there being no pleading of fraud or any<br />
exposition of the basis upon which the defendant makes the allegation<br />
(in stark contrast to the position in commercial litigation).<br />
This, I would suggest, is unfair in a large number of cases. There are<br />
undoubtedly fraudulent claims, and there are undoubtedly witnesses<br />
who are prepared to come to court to lie (whether the underlying claim<br />
is fraudulent or not; the fact that a witness is lying to bolster their<br />
chances of winning does not mean that the claim itself must necessarily<br />
also be false). However, the apparent attempts of the insurance industry<br />
to reduce the probity of witnesses to what amounts to a binary question<br />
runs contrary to the recognition in cases decided in other courts that<br />
questions of memory and recollection are extremely nuanced.<br />
The nature of memory was commented upon by Leggatt J in his<br />
judgment in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013]<br />
EWHC 3560 (Comm). Leggatt J points out (at paragraphs 15-23) that the<br />
limitations of human memory and the inherent biases of the litigation<br />
process can have a powerful effect on the veracity of a witness even if<br />
that witness is doing their very best to be truthful:<br />
“An obvious difficulty which affects allegations and oral evidence based<br />
on recollection of events which occurred several years ago is the<br />
unreliability of human memory.<br />
While everyone knows that memory is fallible, I do not believe that the<br />
legal system has sufficiently absorbed the lessons of a century of<br />
psychological research into the nature of memory and the unreliability<br />
of eyewitness testimony. One of the most important lessons of such<br />
research is that in everyday life we are not aware of the extent to which<br />
our own and other people's memories are unreliable and believe our<br />
memories to be more faithful than they are. Two common (and related)<br />
errors are to suppose: (1) that the stronger and more vivid is our feeling<br />
or experience of recollection, the more likely the recollection is to be<br />
accurate; and (2) that the more confident another person is in their<br />
recollection, the more likely their recollection is to be accurate.<br />
Underlying both these errors is a faulty model of memory as a mental<br />
record which is fixed at the time of experience of an event and then<br />
fades (more or less slowly) over time…memory is especially unreliable<br />
when it comes to recalling past beliefs. Our memories of past beliefs are<br />
revised to make them more consistent with our present beliefs. Studies<br />
have also shown that memory is particularly vulnerable to interference<br />
and alteration when a person is presented with new information or<br />
suggestions about an event in circumstances where his or her memory of<br />
it is already weak due to the passage of time.<br />
The process of civil litigation itself subjects the memories of witnesses to<br />
powerful biases. The nature of litigation is such that witnesses often have<br />
a stake in a particular version of events. This is obvious where the<br />
witness is a party or has a tie of loyalty (such as an employment<br />
relationship) to a party to the proceedings. Other, more subtle influences<br />
include allegiances created by the process of preparing a witness<br />
statement and of coming to court to give evidence for one side in the<br />
dispute. A desire to assist, or at least not to prejudice, the party who has<br />
called the witness or that party's lawyers, as well as a natural desire to<br />
give a good impression in a public forum, can be significant motivating<br />
forces.<br />
Considerable interference with memory is also introduced in civil<br />
litigation by the procedure of preparing for trial. A witness is asked to<br />
make a statement, often (as in the present case) when a long time has<br />
10 In Brief<br />
already elapsed since the relevant events. The statement is usually<br />
drafted for the witness by a lawyer who is inevitably conscious of the<br />
significance for the issues in the case of what the witness does nor does<br />
not say. The statement is made after the witness's memory has been<br />
"refreshed" by reading documents. The documents considered often<br />
include statements of case and other argumentative material as well as<br />
documents which the witness did not see at the time or which came into<br />
existence after the events which he or she is being asked to recall. The<br />
statement may go through several iterations before it is finalised. Then,<br />
usually months later, the witness will be asked to re-read his or her<br />
statement and review documents again before giving evidence in court.<br />
The effect of this process is to establish in the mind of the witness the<br />
matters recorded in his or her own statement and other written material,<br />
whether they be true or false, and to cause the witness's memory of<br />
events to be based increasingly on this material and later interpretations<br />
of it rather than on the original experience of the events.<br />
It is not uncommon (and the present case was no exception) for<br />
witnesses to be asked in cross-examination if they understand the<br />
difference between recollection and reconstruction or whether their<br />
evidence is a genuine recollection or a reconstruction of events. Such<br />
questions are misguided in at least two ways. First, they erroneously<br />
presuppose that there is a clear distinction between recollection and<br />
reconstruction, when all remembering of distant events involves<br />
reconstructive processes. Second, such questions disregard the fact that<br />
such processes are largely unconscious and that the strength, vividness<br />
and apparent authenticity of memories is not a reliable measure of their<br />
truth.”<br />
These points will be familiar to litigators (and Leggatt J’s observations<br />
were made in the context of very substantial commercial litigation,<br />
where it can probably be safely assumed that much time and care were<br />
lavished on the preparation of the witness statements; the same cannot<br />
be said of all cases) and demonstrates the dangers of relying on witness<br />
evidence – even if it is apparently the product of a witness with a clear<br />
recollection of the facts – when contradicted by contemporaneous<br />
documentary evidence.<br />
It also highlights the shortcomings of assessing the credibility of evidence<br />
by reference to the confidence of its delivery. We have all heard (and<br />
have probably all made) closing submissions which invite a judge to<br />
prefer the evidence of a witness because the oral evidence was<br />
‘consistent’ (with the witness statement containing the same version of<br />
events) or that the witness was ‘adamant’ about his version of events.<br />
Leggatt J’s comments highlight the problems that such superficial<br />
analysis can mask; a witness’ testimony can be entirely consistent with<br />
itself and confidently delivered, but inaccurate as a result of the type of<br />
inbuilt biases described above (which are then exacerbated by the<br />
litigation process). As he went on to say in his judgment in Gestmin:<br />
“…the best approach for a judge to adopt in the trial of a commercial<br />
case is, in my view, to place little if any reliance at all on witnesses'<br />
recollections of what was said in meetings and conversations, and to<br />
base factual findings on inferences drawn from the documentary<br />
evidence and known or probable facts. This does not mean that oral<br />
testimony serves no useful purpose – though its utility is often<br />
disproportionate to its length. But its value lies largely, as I see it, in the<br />
opportunity which cross-examination affords to subject the documentary<br />
record to critical scrutiny and to gauge the personality, motivations and<br />
working practices of a witness, rather than in testimony of what the<br />
witness recalls of particular conversations and events.<br />
Above all, it is important to avoid the fallacy of supposing that, because<br />
a witness has confidence in his or her recollection and is honest,<br />
evidence based on that recollection provides any reliable guide to the<br />
truth.”<br />
Leggatt J was, as aforesaid, speaking in the context of commercial
WITNESSES<br />
litigation but it is suggested that the principles are of general application.<br />
Mostyn J made similar observations (citing Gestmin, among other cases)<br />
in a family law context in the recent case of Lachaux v Lachaux [<strong>2017</strong>]<br />
EWHC 385 (Fam). In particular, his citing of the judgment of Lord<br />
Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep<br />
403, HL demonstrates that setting out principles for the assessment of<br />
witness credibility has exercised judicial minds for some time:<br />
“'Credibility' involves wider problems than mere 'demeanour' which is<br />
mostly concerned with whether the witness appears to be telling the<br />
truth as he now believes it to be. Credibility covers the following<br />
problems. First, is the witness a truthful or untruthful person? Secondly,<br />
is he, though a truthful person, telling something less than the truth on<br />
this issue, or, though an untruthful person, telling the truth on this issue?<br />
Thirdly, though he is a truthful person telling the truth as he sees it, did<br />
he register the intentions of the conversation correctly and, if so, has his<br />
memory correctly retained them? Also, has his recollection been<br />
subsequently altered by unconscious bias or wishful thinking or by overmuch<br />
discussion of it with others? Witnesses, especially those who are<br />
emotional, who think that they are morally in the right, tend very easily<br />
and unconsciously to conjure up a legal right that did not exist. It is a<br />
truism, often used in accident cases, that with every day that passes the<br />
memory becomes fainter and the imagination becomes more active.<br />
For that reason, a witness, however honest, rarely persuades a Judge that<br />
his present recollection is preferable to that which was taken down in<br />
writing immediately after the accident occurred. Therefore,<br />
contemporary documents are always of the utmost importance. And<br />
lastly, although the honest witness believes he heard or saw this or that,<br />
it is so improbable that it is on balance more likely that he was mistaken?<br />
On this point it is essential that the balance of probability is put correctly<br />
into the scales in weighing the credibility of a witness. And motive is one<br />
aspect of probability. All these problems compendiously are entailed<br />
when a Judge assesses the credibility of a witness; they are all part of one<br />
judicial process. And in the process contemporary documents and<br />
admitted or incontrovertible facts and probabilities must play their<br />
proper part.”<br />
Lord Bingham, who wrote extrajudicially on a number of topics, had this<br />
to say on the subject:<br />
“The main tests needed to determine whether a witness is lying or not<br />
are, I think, the following, although their relative importance will vary<br />
widely from case to case:<br />
i. the consistency of the witness's evidence with what is agreed, or<br />
clearly shown by other evidence, to have occurred;<br />
ii. the internal consistency of the witness's evidence;<br />
iii. consistency with what the witness has said or deposed on other<br />
occasions;<br />
iv. the credit of the witness in relation to matters not germane to the<br />
litigation;<br />
v. the demeanour of the witness.”<br />
So where does this leave us? It is hardly an original observation to say<br />
that witnesses often fail to come up to proof as a result of some or all of<br />
the factors referred to above. The question may be asked, however, how<br />
judges in the personal injury sphere are to be asked routinely to<br />
conclude with confidence that a witness is ‘fundamentally dishonest’ if<br />
they fail to come up to proof when giving evidence, when the<br />
experiences of judges trying other types of cases suggest that such an<br />
assessment is far from straightforward. As pointed out by Lord Pearce in<br />
the passage above, a witness, “...though a truthful person, [may be]<br />
telling something less than the truth on this issue, or, though an<br />
untruthful person, [may be] telling the truth on this issue”.<br />
That is not to say that it cannot be done. As stated by HHJ Hodge Q.C.<br />
in Meadows v La Tasca Restaurants Ltd [2016] EW Misc B28 (CC), “if a<br />
lie is told merely to bolster an honest claim or defence, then that will not<br />
necessarily tell against the liar. But if the lie goes to the whole root of the<br />
claim or defence, then it may well indicate that the claim or defence (as<br />
the case may be) is itself fundamentally dishonest.” A claimant who<br />
suppresses evidence of previous accidents or relevant pre-existing<br />
medical conditions runs the risk of a finding that his dishonesty ‘goes to<br />
the whole root’ of the claim.<br />
It is not helpful, in conducting such an enquiry, that the practice of<br />
personal injury litigation when it comes to questions of fraud and<br />
dishonesty continues to diverge from other types of civil litigation<br />
(where, as a matter of professional conduct, allegations of fraud must be<br />
fully pleaded and properly particularised; the suggestion that it is<br />
possible to raise ‘concerns’ in a defence that can then be the subject of<br />
detailed cross-examination, as opposed to pleading a detailed fraud<br />
allegation in a defence, would be met with incredulity in most<br />
commercial cases). I understand that Manchester County Court is now<br />
demanding that allegations of fundamental dishonesty be properly<br />
pleaded; this is a step in the right direction and to be welcomed.<br />
Be that as it may, it is suggested that the enthusiasm with which<br />
defendants make applications concerning fundamental dishonesty based<br />
on evidence which suffers from the type of problems identified in the<br />
cases set out above is misplaced, and that the broad spectrum which<br />
comprise the degrees of human recollection runs the risk of becoming<br />
decidedly monochrome. It remains to be seen whether further reported<br />
cases will help the jurisdiction to ‘bed down’ or whether the issue will<br />
remain problematic in future.<br />
Elis Gomer<br />
St John’s Buildings<br />
Iain Goldrein QC published in China<br />
Iain Goldrein QC’s book “Ship Sale and Purchase” which was first<br />
published in 1985 has now been published in China.<br />
Iain comments “Following the success of the first edition, my two<br />
co-editors Matt Hannaford and Paul Turner joined me and the book is<br />
now in its 6th edition.”<br />
After the publication of the latest edition, we were approached<br />
formally from China, for the book to be translated officially into<br />
Chinese, and it was so translated last year.<br />
On the translation, Iain commernts “I am given to understand that less<br />
than 50 English Law books have been translated into Chinese.<br />
I confess to being quite moved by this, not least of all because the<br />
book was written on the banks of the Mersey, and Liverpool is twinned<br />
with Shanghai.”<br />
In Brief 11
PI<br />
Diary of #discountrate<br />
26 February <strong>2017</strong>: Looking for a bargain holiday, search #discountrate.<br />
Cheap flights galore appear. Sadly no time to research this now, as must<br />
advise on Part 36 offer.<br />
27 February <strong>2017</strong>: Search #discountrate. What is this? Twitter has gone<br />
into meltdown. Where have the cheap flights gone? Apparently the Lord<br />
Chancellor has gone bananas, insurers are sobbing into their cornflakes,<br />
and lawyers are in a tweeting frenzy. There is an excitement in the world<br />
of personal injury not known since the seismic “Whiplash Reforms”. That<br />
was only four days ago, what on earth is going on?<br />
Gerard McDermott QC tweets, “On a day like today #Twitter proves a great<br />
resource to lawyers”. Decide to follow his advice. Apparently the discount<br />
rate, which is to be applied when calculating multipliers for future loss<br />
claims, will be reduced from 2.5% to -0.75%. This is the first change in 16<br />
years.<br />
So, in simple terms, a 20 year old male claimant who has a normal life<br />
expectancy, and future care needs assessed at £100,000 per annum. Using<br />
a 2.5% discount rate, the life multiplier was 32.10, which produced a lump<br />
sum of £3,210,000. However, with a discount rate of -0.75%, the<br />
multiplier is 88.96, producing a lump sum of £8,896,000. Little wonder<br />
then that the Government has set aside around £6bn to cover the increased<br />
cost of settling clinical negligence claims.<br />
So does this mean that Claimants are receiving some kind of windfall?<br />
Apparently not; the Lord Chancellor describes -0.75% as “the only legally<br />
acceptable rate I can accept”.<br />
28 February <strong>2017</strong>: Spot a tweet, referring to Gordon Exall@CivilLawTweet<br />
on “THE STEPS THAT NEED TO BE TAKEN”. Note to self; must tell client<br />
to ignore that Part 36 Advice I gave two days ago, the one that stopped me<br />
booking the bargain holiday. I retweet the tweet, and smile when I receive<br />
notification that I too have been retweeted.<br />
However not everyone is happy; the Law Society Gazette tweets; “Insurers<br />
march on the Treasury to demand discount rate rethink.” Goodness I think,<br />
why does the Lord Chancellor have such power over compensation<br />
awards? Isn’t that a judicial task?<br />
2 March <strong>2017</strong>: My questions are answered when Sir Henry Brooke posts<br />
a blog with a snazzy title; “The origins of the statutory discount rate for<br />
lump sum personal injury awards”. He reflects on the Law Commission’s<br />
proposals back in 1994, when they recommended the Courts take actuarial<br />
evidence into account in the calculation of awards for settlements for future<br />
losses. By doing so, Claimants who had suffered the most serious injuries<br />
could be assured that their awards would be preserved for the future. The<br />
Law Commission recommended that, “In determining the rate to be<br />
expected from investment of the sum awarded, the Court shall ... ... take<br />
into account the net return on an index-linked Government security ...”.<br />
Sir Henry Brooke points out that had the Government followed that<br />
recommendation, then “The Courts would have adopted seamlessly the<br />
current net return available on a newly issued index-linked Government<br />
security”. However, by the time the Damages Act 1996 came into force,<br />
the Government had changed the relevant clause, providing instead that<br />
the Court was to “take into account such rate of return (if any) as may from<br />
time to time be prescribed by an Order made by the Lord Chancellor”. So<br />
what was essentially a judicial function became vested in the Lord<br />
Chancellor, and this remained so even after the constitutional reforms in<br />
2005.<br />
It was not until 2001 that the then Lord Chancellor fixed the Damages Act<br />
rate at 2.5%, and this remained the rate until <strong>2017</strong>. In fixing the rate, the<br />
Lord Chancellor had regard to the principles held in Wells v Wells [1999]<br />
1 AC 345, that fair compensation was 100% compensation. Claimants<br />
should be assumed to be risk averse investors, and as such the assumed rate<br />
of return was based upon the yield of index-linked Government securities<br />
over a three year period, less tax.<br />
Yet as financial markets changed, a cautious claimant that invested his<br />
lump sum in a basket of index-linked Government stock became<br />
guaranteed to get back less money than the stock cost to buy!<br />
Nevertheless, successive Lord Chancellors failed to alter the prescribed<br />
discount rate, and so there was a failure to ensure that compensation<br />
remained a fair reflection of the returns to be expected on safe investments.<br />
However, few expected such a seismic change in the discount rate, and it<br />
is this that has caused the likes of Huw Evans, Director General of the<br />
Association of British Insurers, to describe the new rate as “reckless in the<br />
extreme”.<br />
Nevertheless, it is the catastrophically injured claimants that have lost out<br />
over the past years, as they have had to give credit for non-existent returns<br />
on safe lump sum investments. However, perhaps the Lord Chancellor’s<br />
delay is not surprising, given that the Government is itself a major<br />
tortfeasor, and payer of damages.<br />
4 March <strong>2017</strong>: Twitter tells me that “Roberts V. Johnstone is dead”. Who<br />
is this Roberts V. Johnstone and when is his funeral? However as I carefully<br />
read John de Bono QC’s blog, I remind myself that this is the method by<br />
which the Courts have been calculating the cost of future accommodation<br />
for catastrophically injured claimants. This has been done by applying the<br />
assumed rate of return to the additional capital sum required to purchase a<br />
larger property, multiplied by the claimant’s life expectancy multiplier. It<br />
was already proving to be a poor formula, given the rise of property rises<br />
over recent years, resulting in claimants having to use funds otherwise<br />
earmarked for pain and suffering, lost earnings or therapies. However now<br />
we have a minus discount rate, any claimant continuing to use the RvJ<br />
calculation will now be paying money back to the defendant! Alternatives<br />
such as payment of rental or mortgage costs need to be considered.<br />
However, the practicalities are thwarted with complications.<br />
20 March <strong>2017</strong>: It’s happening, “DR -0.75%” is officially in force!<br />
21 March <strong>2017</strong>: News of LMS v Lancashire Hospitals NHS Trust circulates.<br />
The Guardian headline reads; “NHS Trust triples injury payout to £9.3m<br />
under Controversial new rules”. I spot a tweet from Nigel Poole QC;<br />
“Warning: This headline is surely wrong”. Despite his new appointment<br />
as Head of Kings Chambers, there is no time to crack open the champagne.<br />
Michael Redfern QC was Counsel for the claimant, and Nigel Poole QC<br />
blogs, “I have it on very good authority that the DR change did indeed lead<br />
to an increase in the lump sum from £1.32m to £2.12m – an increase of<br />
£800,000… … not the £6m claimed by the Guardian. The agreed<br />
periodical payments remain the same as previously agreed.”<br />
So I ask myself, if the new discount rate is so attractive, why would any<br />
claimant bother with PPOs? Well, according to Jennifer Stone of Nestor<br />
Financial Group, PPOs give Claimants and their relatives financial peace of<br />
mind that the award will indeed last for the life of the claimant. This is<br />
important as there is always a chance that the Claimant will “outlive” their<br />
perceived life expectancy. Further the claimant has security that their<br />
award will in fact be able to meet the growing cost of care, whatever<br />
happens in the financial markets.<br />
30 March <strong>2017</strong>: The promised consultation on the discount rate is<br />
announced. The consultation, which is open until 11 May <strong>2017</strong> is to<br />
consider whether the rate should in future be set by an independent body,<br />
and whether the methodology (which assumes that claimants will invest<br />
only in index-linked gilts) is appropriate for the future.<br />
3 <strong>April</strong> <strong>2017</strong>: Twitter is busy with discussion of the promised consultation.<br />
I spot an excellent “Periscope” by Gerard McDermott QC, and another<br />
blog by Sir Henry Brook, describing it as “the antithesis of the scholarly<br />
process” that the Law Commission conducted over 25 years ago.<br />
11 May <strong>2017</strong> and beyond: Following the consultation, the Government<br />
intends to bring forward any necessary legislation. So just how long awards<br />
will be subject to the -0.75% rate is anyone’s guess. However,<br />
#discountrate will be sure to hear first!<br />
Julie-Anne Luck<br />
Kenworthys Chambers<br />
12 In Brief
In Brief 13<br />
CIRCUIT NEWS<br />
As we are coming to the end of another year<br />
of pupillage rounds it seemed appropriate to<br />
make this request for help to Chambers and<br />
practitioners on the Northern Circuit.<br />
The Northern Circuit has always prided itself<br />
on providing opportunities for ability and<br />
potential, wherever it may come from, to<br />
develop and thrive, recognising that our<br />
individual Chambers, the Northern Circuit<br />
and the Bar as a profession will only develop<br />
if we recruit on this basis.<br />
Kings Chambers has, for the last few years,<br />
been working with the Dick Camplin<br />
Education Trust to provide mini-pupillages<br />
and mentors to the Trust’s Scholars who are<br />
interested in considering a career at the<br />
Bar/in the law.<br />
The Scholars are all very able students from<br />
Salford City College or Loreto Sixth Form<br />
College who have overcome “significant<br />
barriers to their education” and gained a<br />
place on a degree course at University. The<br />
Trust helps them by providing scholarships<br />
to a value of £1000 (they have awarded in<br />
excess of £200,000 worth of scholarships to<br />
date) and provides valuable assistance in the<br />
form of (a) help with any academic or<br />
personal problems they may have whilst at<br />
University, (b) meetings with the Trustees to<br />
discuss their progress and hopes, (c) securing<br />
of work placements (including financial<br />
support to enable them to undertake the<br />
same including the purchase of appropriate<br />
clothing), (d) assistance with preparation for<br />
work placements and interviews and (e)<br />
exposing them to professional and social<br />
situations they might not previously have<br />
experienced.<br />
At the end of this article I have included pen<br />
pictures of some of the graduate Scholars<br />
that the Trust has helped to date. They are all<br />
people of the highest ability and<br />
commitment who have succeeded because<br />
someone recognised their ability and<br />
potential and gave them the opportunity to<br />
use the same. We need people like this to<br />
have the opportunity to learn about and (if<br />
they want) pursue a career at the Bar.<br />
If you or your Chambers would be interested<br />
in providing mini-pupillages or being a<br />
mentor to a Scholar then please get in touch<br />
with me at mharper@kingschambers.com<br />
and I will put you in contact with the<br />
Trustees.<br />
Mark Harper QC<br />
Kings Chambers<br />
Can you help?<br />
have the opportunity to learn about and (if they want) pursue a career at the Bar.<br />
If you or your Chambers would be interested in providing mini-pupillages or be<br />
mentor to a Scholar then please get in touch with me at mharper@kingschambers<br />
and I will put you in contact with the Trustees.<br />
Mark Harpe<br />
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FEATURE<br />
The Collected Ramblings of a<br />
Disaffected Northern Circuiteer<br />
Part 8: A Supreme Court Brexit Special<br />
________________________________________<br />
Picture the scene. It’s Monday morning, 5th December 2016,<br />
Parliament Square. The Nation is gripped with Brexit fever. The<br />
Press, who have already branded the Judiciary ‘The Enemies of the<br />
People’, can smell blood and have encircled the Supreme Court in<br />
scenes reminiscent of Custer’s last stand. Inside, batteries of lawyers<br />
from the four corners of the Kingdom (including Wales) are jostling<br />
for the best camera angles on Supreme Court TV. Upstairs, the man<br />
they call ‘the Gaffer’, Dave Neuberger, has assembled a full squad<br />
for a final pep-talk over breakfast in the judicial dining room. Poised<br />
in a tight fitting 1970’s Gola England track suit with a towelling<br />
headband, and looking like a DNA experiment involving Kevin<br />
Keegan and John McEnroe, he tapped nervously at a white board<br />
with eleven green magnets.<br />
*****<br />
“Right, listen up boys and girl. We’ve reached the business end of<br />
the season. There are no easy games at this level. This is our cup<br />
final. It’s a game of two halves. You need to give it 110% Don’t leave<br />
anything in the locker. Let’s get out on the park and mix it up a bit.”<br />
He paused, and looked around. No-one was taking the blindest bit<br />
of notice.<br />
Brenda was doing her knitting. Mancey was texting Arden LJ to see<br />
what was for tea. Johnnie Three Brains (Sumption) was half way<br />
through the fifth volume of The Hundred Years War. Clarkey was<br />
puzzling over The Times crossword, with Nicko (Wilson) and<br />
Hodgey helping him. Reedie had his head stuck in a cornflakes box<br />
looking for the free gift. Tony (Hughes) and Robbo (Carnwath) were<br />
having an arm wrestle, and Beekie (Kerr) was picking his nose. This<br />
was the cream of the UK judiciary. Dave had a feeling they were<br />
going to make an impact.<br />
He looked down at the team sheets and rubbed his chin, wistfully.<br />
“I’ve got some good news and some not so good news. The good<br />
news is the Government’s leading with Wrightey”. This was met<br />
with guffaws and jeers. Rather like Jamie Vardy, Jezza (the A-G) had<br />
come from no-where and was probably going no-where. The bit in<br />
the middle was living proof that truly remarkable things can happen,<br />
even to Criminal Barristers from Birmingham. “He’ll probably just<br />
read from a pre-prepared speech”. More guffaws and jeers.<br />
“The not so good news is that Miller’s got Pannick up front.” There<br />
was a sudden hush. Everyone stopped what they were doing and<br />
looked up. No-one liked Pannick. He appeared in the Supreme<br />
Court more often than they did and had a nasty habit of deflecting<br />
questions with questions that none of them could answer. “Don’t<br />
worry”, said Dave, trying to calm them, “We’ve got…” Dave looked<br />
round the room, studying each of them intently. “…right, they’ve got<br />
Pannick” he concluded, somewhat deflated. Without The Hoff, they<br />
had been considerably outgunned for some time, and despite being<br />
their most expensive signing, Johnnie Three Brains had been out of<br />
sorts since joining from Chelsea, with more off days this season than<br />
Claudio Ranieri. The mood was turning nasty.<br />
Fortunately, they’d spent countless hours on the training ground on<br />
set-pieces for moments like this. Dave reached into his Adidas kit<br />
bag and pulled out a wad of documents. “Right, here’s something I<br />
prepared earlier.” In a well-rehearsed routine he handed them each<br />
a copy of his draft judgment.<br />
*****<br />
Many years ago, in the days of Hailsham of St Marylebone, and<br />
MacKay of Clashfern, when the Law was, well, the Law, this kind of<br />
thing would have been heretical, but in response to savage cuts in<br />
judicial pay and pensions, the Supreme Court had hit upon a novel<br />
principle of ‘Distributive Justice’, in which decision-making was<br />
distributed around the panel, with everyone else agreeing. It<br />
achieved the twin aims of proportionality and saving cost, and freed<br />
the Justices to go off and do other things, like give lectures about the<br />
important work being done by the Supreme Court. It also enabled<br />
Dave to go recruiting for the Bench on a ticket ‘anyone can do it’.<br />
*****<br />
The mood lightened. Most of them went back to what they were<br />
doing, but Reedie wasn’t happy. The diminutive Scotsman hauled<br />
himself to his feet, all four foot eleven of him, although the<br />
cornflakes box on his head did give him an advantage. “Och, we<br />
canna all agree, surely?”<br />
“Why ever not!” retorted the Gaffer, “And don’t call me Shirley!”<br />
One of the downsides of having a half intelligent Judiciary was that<br />
they were occasionally prone to spontaneous bursts of original<br />
thinking. It was something the Judicial College had been<br />
discouraging for years. He had a point though. An eleven: nil hatchet<br />
job on the Government would likely lead to a further worsening of<br />
pay and conditions. On the other hand, a split decision would make<br />
it look like the Chief Justice and the Master of the Rolls, and that<br />
other guy in the Divisional Court whose name no-one could ever<br />
remember, didn’t know what they were doing. It was a conundrum<br />
alright.<br />
Dave reached into his kit bag once again and pulled out a handful<br />
of red magnets. “Right, hands up for dissenters?”<br />
*****<br />
It would be churlish to suggest that the Supreme Court didn’t give<br />
some thought, at least, to the outcome of the most constitutionally<br />
significant appeal in legal history, but since none of them really<br />
knew what Article 50 was, and no-one could be bothered to read the<br />
20,000 pages of submissions that had been written about it, the<br />
reality was, erm, ever so slightly different.<br />
Dave drew them together for a final act of worship with one of<br />
Julia’s pre-prepared prayers before leading them down the tunnel.<br />
________________________________________<br />
John Knott is currently away, but says he’ll be back.<br />
14 In Brief
SPORT AND CROSSWORD<br />
NORTHERN v NORTHERN-<br />
EASTERN CIRCUIT CRICKET<br />
RUSSELL CUP 2016<br />
UPPERMILL CC<br />
Sunday, 11th September<br />
2016<br />
This summer gone the Northern Circuit somehow played host to the<br />
North-Eastern Circuit away in the West Riding of Yorkshire at<br />
Uppermill CC on Sunday, 11th September. Uppermill, in the Marches<br />
of the Northern Circuit, is the ancestral home of Peter Harthan, who<br />
kindly with his family arranged for the fixture. Rather than boasting the<br />
Harthan ancestral arms, the ground did have advertizing hoardings<br />
with the name of the family firm. The Harthan name did not seem to<br />
have made the trophy boards in the club house.<br />
The North-Eastern Circuit batted first. So as to provide evenness to the<br />
game, two Northern Circuit fieldsmen conspired to drop George<br />
Hazel-Owram, skipper and best batsman of the North-East, off the<br />
bowling of Nigel Power. The highlights were two fine stumpings by<br />
Harthan, the hybrid cricket/golf clothing of Will Poole (as well as his<br />
bowling) and the creamy hamstrings of Dickie Bennett, recently seen at<br />
Whitewell, and before that last seen when carted off by ambulance in<br />
Bath ten years ago. The variations in the Northern Circuit’s bowling<br />
were startling developments from Last Man Standing and other short<br />
formats of the game. The umpire, Peter Lilley, took little interest in<br />
some of the wides and pea-rollers. His liberal if not libertarian<br />
tolerance fitted the name. Depending upon the partisanship of the<br />
newspapers reporting the match, the North-Eastern Circuit either<br />
romped or stuttered to 180 in the 35 overs.<br />
The Northern Circuit batting order was Adam Watkins, Martin Browne,<br />
Nigel Power QC, Will Poole, David Tinkler, Peter Harthan (wkt),<br />
Michael Armstrong, Tom Gosling, Jaime Hamilton, Richard Bennett,<br />
and Charles Prior (c). The Harthan family teas weighed heavily on the<br />
Circuit’s batsmen. Their individual scores should remain a mess secret,<br />
but the highest score was that carded by Will Poole - 34. Liverpool<br />
CC’s player of the year David Tinkler found touring and scoring a little<br />
harder than he had hoped. What was especially heart-warming and<br />
thrilling was the rearguard action of Jaime Hamilton, Tom Gosling and<br />
Dickie Bennett batting for a draw, as the breathless hush in the Close<br />
turned into a yawn with there being 50 to win. Not even a pitch<br />
invasion by the local ram, possibly the mascot of the North-Eastern<br />
Circuit, caused their concentration and determination to slip. They did<br />
make it to 133 for 9, but did not realize that (despite all appearances) it<br />
was in fact a limited-overs game.<br />
So the North-Eastern Circuit easily won back the Russell Cup, which<br />
we had so kindly brought over to them. My thanks to all the players<br />
and to Peter Harthan and his family for organizing the fixture so well.<br />
Next year the North-Eastern Circuit will hopefully be the host, probably<br />
in its heartlands such as Blackpool. Anyone interested in playing next<br />
year, please get in touch with Charles Prior at Atlantic Chambers, who<br />
will send out details of pre-season training.<br />
Charles Prior<br />
Atlantic Chambers<br />
Northern Circuit<br />
v<br />
Irish Bar<br />
Rugby and Hockey<br />
The Northern Circuit V Irish Bar Annual Rugby<br />
match will take place in Dublin on 5-7 May and,<br />
for the first time, the Circuit will also take a<br />
ladies' hockey team to Dublin.<br />
Attendance is encouraged from all members to<br />
play rugby, hockey or shout encouragement from<br />
the sidelines of both fields.<br />
Please contact James Paterson<br />
(Paterson@deanscourt.co.uk)<br />
or Harriett Tighe (Tighe@deanscourt.co.uk)<br />
at Deans Court to book on to the trip or<br />
for further information.<br />
Solution to the<br />
Christmas Crossword<br />
P A C K A G I N G C A R O B<br />
I A R C I H O E<br />
M A R T I N I F E R V E N T<br />
P D A N T I D H<br />
S H I N D I G B O S W E L L<br />
E N O O E E<br />
P A S D E D E U X M Y R R H<br />
U V E E<br />
B O M B S A M S T E R D A M<br />
C O A N X E<br />
R E D F L A G S A C K F U L<br />
A E V E W I A I<br />
W A S S A I L A Z T E C A N<br />
L T G I M E T E<br />
S K Y P E C H I L D H O O D