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Tuesday, 7 April 2020

In which losing a briefcase turns out far worse than a headbutt!

Two recent disciplinary cases against lawyers have produced very contrasting outcomes.

Firstly, there is, yet again, the tragedy of a career in tatters because of desperate attempts at a cover up. The background to this case is, to be honest, the stuff of everyone’s nightmare. Claire Matthews did not miss a deadline; she did not get the law wrong; she fell asleep on a train. Unfortunately, this caused her to leave behind a locked brief case that contained highly sensitive documents. Her client was the SRA.

She did not report the incident to her employers, Capsticks, for a week in the hope that she could retrieve the lost briefcase. She lied to a colleague that she had left it at her new flat and that she would return it. In a later email she said that she had left it on a train that morning when in fact this had happened the previous week. Anyone who has followed these stories will know that this was all going to end badly.

There was evidence before the SDT that she was in a very bad state following the incident. She told the tribunal that she had “drank alcohol to excess in order block out the event. At her lowest point, the Respondent said that she had resorted to drinking bleach in an attempt to end her life.”  She said that she acted in panic and that there was no deliberate attempt to mislead.

The tribunal found that –

“The damage to the reputation of the profession by the Respondent’s misconduct was significant as the public would trust a solicitor not to conceal the loss of data by telling untruths to their colleagues and their employer. The Respondent’s conduct was a significant departure from the complete integrity, probity and trustworthiness expected of a solicitor.”

She was struck off and ordered to pay £10k costs.

This does seem a harsh outcome. But is stark reminder again of the need to be completely open if you make a mistake. To leave a bag on a train is forgivable. It can happen to us all. To then mislead your employers takes the incident to another level. To confess is painful. To lose your career is a tragedy. The SDT have again made it clear that honesty and integrity are paramount.

It is interesting that the second case, involving a member of the bar, has a very different outcome. It was a very different case. The report in Legal Futures opens with the unforgettable words –

“A senior barrister who headbutted a junior female member of chambers during a drunken row, leaving her on the ground with blood all over her face, has been suspended for three months by a Bar disciplinary tribunal.

It seems that both barristers were drunk.

The Bar Disciplinary Tribunal, in suspending him said that a “signal needed to be sent” that such conduct was not acceptable. I should say, in passing, that Everton FC player Duncan Ferguson spent 4 months in HMP Barlinnie for headbutting an opponent when playing for Glasgow Rangers!

This is nothing to do with the case of Ms Matthews. But you could understand members of the public wondering why a young solicitor does more damage to the reputation of the profession by panicking after losing a briefcase, than a senior barrister who headbutts a woman colleague in the street.

Just saying.

Thursday, 2 April 2020

Supreme Court allows damages for commercial surrogacy in the USA

Clinical Negligence lawyers have been awaiting the judgment in Whittington v XX that was delivered by the Supreme Court yesterday –

This has been a long running case which raised a number of issues in relation to quantum, causation and provisional damages. The most controversial arguments have surrounded the claimant’s right to damages for the cost of surrogacy.

Breach of duty was not controversial. There was a failure to diagnose cervical cancer. The Claimant required extensive surgery and chemotherapy. She suffered a total loss of fertility. She had no children. She had a strong wish to start a family. The claimant’s intention was to enter into a surrogacy arrangement in California. Such arrangements are unlawful in the UK. She also wished to use donor eggs.

In 2002 the Court of Appeal had dismissed a similar claim in the case of Briody v St Helens and Knowsley Area Health Authority (2002) QB 856. The key reason was that commercial surrogacy was unlawful. 

In XXX, Sir Robert Nelson found that he was bound by Briody and refused that head of claim. The use of donor eggs was also refused as this was not restorative of her loss i.e. fertility. The Court of Appeal allowed her claim on both counts. She was doing nothing wrong by entering into an arrangement that was perfectly lawful in the place where the surrogacy would take place. McCombe LJ said - 

‘In my judgment, therefore, the law no longer requires a bar to the recovery of damages claimed by Mrs X on policy grounds’ and

‘The distinction between ‘own egg surrogacy’ and ‘donor egg surrogacy’, employing the partner’s sperm would be entirely artificial. Having regard to the development of social attitudes, I feel able (with the greatest respect to Hale LJ’s views of 17 years ago) not to follow the dicta in Briody on this point.’
And so to the Supreme Court.

They have found in favour of the Claimant by a 3 – 2 majority. Lady Hale gave the majority judgment. She noted that the Supreme Court was not bound by Briody. Its persuasiveness was mitigated by ‘subsequent developments in the law and social attitudes relating to surrogacy’.

On the question of donor eggs, Lady Hale rejected her own observations in Briody that this was not restorative of the claimant’s loss. ‘In my view it was probably wrong then and is certainly wrong now.’ 

This view was influenced by a different understanding of the ‘family’ -  

“ This view is reinforced by the dramatic changes in the idea of what constitutes a family which have taken place in recent decades, referred to earlier. There are many different kinds of family these days. As King LJ pointed out in the Court of Appeal, “psychologically and emotionally the baby who is born is just as much ‘their’ child as if one of them had carried and given birth to him or her” (para 103). This is the experience of those judges who have the happy experience of granting parental orders. I would therefore hold that, subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs.” (48).

On the question of the California surrogacy, the claimant was not planning anything illegal.

Lady Hale pointed out that the entitlement was not unlimited. Firstly the arrangement had to have reasonable prospects of success. In addition – “This is unlikely to be reasonable unless the foreign country has a well-established system in which the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded".

The dissenting judgment of Lord Carnwath, with which Lord Reed agreed, was limited to the surrogacy point. He said that it was his view that the Court of Appeal took the correct view in Briody and that view remains correct today.

This has been an area of uncertainty for many years. Not for the first time in recent years, we have seen judicial thinking moving in line with shifts in society and in scientific developments.

Wednesday, 1 April 2020

Forty years and I can still count!

It was on this day – April Fools’ Day 1980 – that I officially joined the roll of Solicitors. Lord Denning autographed my admission certificate and the 40-year roller coaster began. 

The Jam topped the charts with Going Underground!

I was planning to put on drinks and curled up sandwiches to mark the occasion, but a certain virus put paid to that. So my little speech will have be to be virtual…

My first position was a very short-lived sojourn with a small Liverpool firm who I won’t identify! I was taken on to develop their litigation work – everything from PI to divorce to Crime. This is what we did in those days.

I still have nightmares about my first appearance in the Magistrates Court. My boss asked me to do a committal hearing, with about an hour’s notice. I knew nothing at all about crime. I phoned a friend. He asked if it was a paper or oral committal. I stared wide eyed at the file which didn’t help. My friend said it was probably a paper exercise and I should just say that we agreed. So, there I was sitting amongst some legendary criminal advocates including Mr Makin, Mr Rooney, Mr Livermore and other celebrities. Eventually, it was my time to walk to the guillotine. I stood before the bench and the watching audience of greatness. I read from my copious notes – ‘We consent’. I began to sit. The clerk clearly expected more. ‘What about witnesses?’. I came out with a line that has haunted me to this day – ‘Yes we have got some’.  The clerk spared me further pain and said – ‘Witnesses to be conditionally bound’.  I could the feel the raised eyebrows of the watching hordes. Did I imagine the thumbs down sign, or other more embarrassing gestures in my direction?

This was moment that I decided a career in the law was not for me. I met an equally new barrister outside court and poured my heart out. He smiled and said that I would joke about it one day! Ha!!

I swiftly moved to the Vauxhall Law Centre which changed my life. I have written before about my early days in Scotland Road –

While we are talking about roller coasters, I did once lose a client in court. This was in fact the subject of one of my earliest blogs back in 2012 so I won’t repeat it here, other than to say that my philosophy since that day has been – ‘Never assume that a client in curt has the first idea what is going on..’

Since then, it has all been plain sailing!!

Thank you to all of you who I have known since that first day. 

And to others that I have met along the way. Who would ever have thought that 40 years in the law could produce so much laughter and so much pain…

Tuesday, 31 March 2020

Concerning Cadburys Whole Nut and a personal retail dilemma...

I did a short trip to my local Co-op on Sunday. We needed some essentials – cheese, coffee, oranges etc – all perfectly legal. As a treat, I slipped in a bar of Cadburys Whole Nut and a couple of bottles of wine. I was then instinctively looking over my shoulder until I left the shop. Were these illicit purchases? What if I was stopped and searched? Was I liable to banged up in an obscure jail and never seen again? Has one week’s social distancing done this to us already?? 

I have spent my whole life buying chocolate without a care in the world.

Former Supreme Court Justice, Lord Sumption has strong words to say about excessive policing particularly in Derbyshire. This followed their decision to use drone footage of ramblers to dissuade people from driving for the daily walk, and place dye in a 'lagoon'.

"The police have no power to enforce ministers' preferences but only legal regulations which don't go anything like as far as the government's guidance,". He is right but it does seem that in other areas the police have been very pragmatic.

Another, more extreme story concerns Easter Eggs –

This is uncomfortably close to my own Cadbury’s Whole Nut crisis! Stores have been under pressure to limit what they actually sell to the public, and in particular to ban Easter Eggs!!!

In fact, the restrictions are about which stores have had to close –

Shops that can remain open include supermarkets and food shops, and corner shops and newsagents.
There is nothing about what those stores can and cannot sell. This would be my robust defence to a charge of shopping without due care and attention. I suppose a person might be criticised if they filled a trolley with Stella Artois and nothing else. But is this actually an offence? One of the problems is that we have Regulations which say what we must do or not do, and we have guidance which say what we should do.

We are living through strange and worrying times. Who would have thought in January that I would be writing about the legal complications of chocolate by March?

I do think a period of calm is needed. Of course, it is excessive to feel guilty about an occasional treat. We all want to feel safe. Unusually strong rhetoric has been necessary to force some people to see the importance of staying at home. In the last week I have queued outside a pharmacy for an hour and a supermarket for half an hour. Everyone has been good humoured and co-operative. I don’t think now is the time for arguments about infringement of civil liberties. On the other hand, neither is it a time for heavy handed policing and control. 

I think we have enough on our minds.

Wednesday, 25 March 2020

Coronavirus, home working and Data Protection

I have had interesting conversations this week about the Data Protection implications of the coronavirus pandemic, particularly when almost all lawyers are now working from home. 

I have previously mentioned the need for employers and staff to be aware of their responsibilities and to take sensible precautions.

The Information Commissioners Office has published helpful advice. It is clear that in these exceptional times, they will take an exceptional approach to compliance.

They key points are –

1.      The ICO acknowledge that it might take longer to comply with a DSAR request because of limited resources – “We won’t penalise organisations that we know need to prioritise other areas or adapt their usual approach during this extraordinary period.” They have no power to extend deadlines but – “will tell people through our own communications channels that they may experience understandable delays when making information rights requests during the pandemic

2.      As far as working from home is concerned the advice is simply to follow the same security measures that you would normally follow. Many firms have a working from policy but not all.  If not you will need to put measures in place. These are, in the main, common sense –

(a)    If papers are taken home, this needs to be recorded so you know what is where. Staff need to take care that any papers are stored in a way that protects them being accessed by a third party. In the current climate there are likely to be limited visitors in any event.
(b)    Staff should be advised to avoid discussing confidential client matters with friends and family, particularly during telephone conversations with clients, colleagues and other parties,
(c)    Are emails encrypted and are sensitive documents sent and received securely?
(d)    What help is available to staff? What do they do if they suspect a breach

3.      The advice is that there should not normally be any need to gather health information about staff. The guidance is that they should tell you if they have visited a particular country or have symptoms and to call 111. This should keep data to a minimum. You can advise staff if someone has contracted COVID-19 but there is no need to name the individual or to provide more information than is necessary,

4.     Data protection law will not prevent you from sharing health information with authorities with where necessary although this is unlikely.

The ICO make it clear that they will be reasonable and pragmatic.

I have heard of some businesses using data protection concerns as a reason for not allowing staff to work remotely. This approach has been out of date for years but is even more so in the current difficulties.

There is an ICO helpline at - 0303 123 1113

Tuesday, 24 March 2020

SRA Publishes some coronavirus guidance

Over the next few days I will be posting regularly as the coronavirus outbreak continues to affect all of us.

The SRA have today published some guidance for firms during the coronavirus outbreak.

In a fairly limited statement, they have said that they will take a pragmatic approach to enforcement and will have regard the current, difficult circumstances. The statement confirms their acknowledgement of the distinction between those who try to do the right thing and those who do not. The full note is here - 

The SRA acknowledge that the disruption might have an impact on training – particularly where supervised assessment is required. They are consulting on any steps that might become necessary to deal with this and will publich futher updates on this. 

The statement also points to the advice that has been published by the Law Society –

This contains a very useful Q & A section where many of the concerns expressed by practitioners are addressed.

This is of some help to solicitors but there is one important issue where the SRA need to be saying more. I have heard of firms who are refusing to allow staff to work at home, despite having the capability. My own view is that any firm who adopt an unreasonable approach in the face of government advice are potentially in breach of the SRA Principles –

 ‘Act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.”

The Law Society’s guidance warns that these firms face the risk of a "strong legal claim".

It would be helpful if the SRA issued a warning notice to firms reminding them of their obligation to comply with official advice regarding working from home.

Liverpool and Chester County Court - Coronavirus Guidance

HHJ Wood has published the following detailed guidance for civil court users -

Dear local practitioner and other court users,

Covid 19 arrangements and temporary measures at Liverpool and Chester County Court and other courts in the Cheshire and Merseyside cluster for CIVIL WORK

There have been several requests for some standard guidance in relation to the conduct of court business over the forthcoming weeks in the light of the present public health crisis, and in particular the advice that is given at national level that we should avoid unnecessary travel or personal contact (“social distancing”), and bearing in mind that many vulnerable individuals will be self-isolating to avoid exposure to the virus. If we continue to insist on face-to-face hearings this will exclude a significant portion of court users.

It has not been possible to provide any clear guidance before now because of the ever-changing picture, and the advice which is being received from the senior judiciary and HMCTS. Leadership judges have been keen to ensure a consistency of approach, insofar as that is possible, but as you will appreciate different courts have different resources and there is no “one size fits all”. Further, as you will appreciate our guidance and arrangements put in place are likely to evolve in coming days.
I and my colleagues, in drawing up these arrangements, have taken into account the fact that many of our court users are litigants in person, and will not have access to the same technology available to lawyers, and it is important that not only is fairness assured, but also that accessibility to the court is not restricted. The starting point, in accordance with national guidance, is that all our hearings, other than urgent cases and one or two exceptional categories, will be conducted remotely, by such means as are available as soon as possible. Currently that is by telephone through BT conferencing controlled by the BT manager, or the judge (BT meetme), or by video, through Skype and Microsoft Teams. Unfortunately, there is insufficient capacity in the court to use the installed video link widely, and this must be reserved for the most urgent of cases. Currently the technical barriers restricting external Skype conferencing are being investigated and hopefully will be resolved.

Accordingly, the following procedures will apply immediately for ongoing court work. (Because of the difficulties of sending out notices there will probably remain some conventional lists in the week commencing 23rd March, but it should be expected that these practices will be followed for all weeks thereafter until further notice).

1.      Small claims track hearings.

All small claims track lists will be vacated until after 4th May, and orders will be sent out accordingly. It is considered that it would not be practicable to have these matters, in most of which the parties are unrepresented, proceed by telephone or remotely. Because of the way these cases are listed, there is likely to be significant personal contact between individuals and court staff, which is not justified in the circumstances. New dates will be sent out in due course.

2.      Fast track and multitrack trials and other open court face to face hearings such as injunctions and committals

The default position for all fast track and multi-track cases will be that they shall be vacated for a minimum period of four weeks from 25th March 2020. The position will be reviewed for the period thereafter. It is considered that insufficient safeguards can be introduced for the majority of trial work to ensure social distancing and negligible contact with staff and other court users. As it is the default position, it will be clear from orders vacating, (a judicial order subject to CPR 3.3 (5) ) that parties can apply for a variation and the reinstating of the trial. However it is only in the most exceptional cases that any such order will be varied and it will be incumbent on the parties to demonstrate that safety can be assured and social distancing preserved and that continuation of the trial is consensual between all parties and advocates.

Trials listed within a window up to 1st June will be vacated and parties will be notified of the new trial window in due course. Any payment of the hearing fee will also be deferred to a later date.

Committals (including arrest cases for ASBI and gang breaches) and injunctions will remain listed in court but may be subject to vacating after assessment by a judge.

3.      Appeals

Oral renewals will be heard from 30th March remotely. Litigants in person will be given a number to dial into, in the absence of any representative, but if a party is legally represented it is expected that the responsibility will lie with the lawyer to set up as usual. Arrangements are being put in place to have full appeals proceed remotely in straightforward cases, although it is likely that more complicated heavy documented appeals will be stood out.

4.      CCMCs and Chambers lists

This will cover interim applications, pre-trial reviews, applications to set aside etc, as well as costs and case management. All cases will now proceed by remote hearing. Parties are encouraged to cooperate in the mode of hearing (usually telephone) and the usual arrangements for telephone hearings will apply, with one party being directed to organise (see guidance attached at appendix 1). It should be borne in mind that litigants in person are not to be excluded from the telephone hearing process, and lawyers are encouraged to ensure that unrepresented parties are aware of the process involved and can properly participate. If both parties are unrepresented, they will be contacted by the court with a number to dial into. There is active consideration being given to a new telephone system for hearings from BT which can be controlled by the judge, and full details will be supplied when this is up and running (BT Meetme).

5.      Stage 3 hearings and disposals (back-to-back lists)

It is proposed that these should now proceed by a remote method, preferably by Skype. There is to be liaison with local practitioners as to the processes involved, including the filing of the necessary documents to enable consideration by the judge, but the intention will be that where cases are block-listed they can be assigned to a particular judge (say 4 or 5 cases per hour) and counsel can still enter the video-conference as and when it is necessary to consider a particular case. This will still enable counsel to attend on other Skype conferences, in a virtual courtroom, in much the same way as happens now in actual courtrooms. These procedures will require the cooperation of practitioners to work efficiently. Current technical difficulties are being ironed out.

6.      PCOL, mortgage and possession cases (both private and social)

Whilst some housing work will continue (e.g. urgent ASBI injunctions, committals etc) in accordance with national guidance the default position will be that all possession claims and evictions will be vacated and postponed for at least three months. The current working date is 19th June, although this may change.

7.      Oral examinations, attachment of earnings and third party debt orders

Oral examinations will be vacated. It is clearly inappropriate for members of staff and members of the public to be in such close association. Fresh dates will be provided after 19th June. Consideration is being given to moving attachments of earnings hearings and third party debt order hearings to a remote method, but this has not yet been finalised. For the time being, parties should assume that these cases will continue as before.

8.      Insolvency and BPC work

It is intended that separate guidance will be issued in relation to the BPC (mainly Chancery and TCC) work which is conducted in Liverpool, in line with national and regional guidance for these cases, which is likely to involve a substantial amount of remote hearing. Please consult that guidance when available. In relation to corporate and personal insolvency, consideration is being given to finding alternative methods of dealing with these cases, but for the time being please assume that they will continue as face-to-face hearings until notified to the contrary.

9.      Infant Approvals
In the short-term infant approval hearings are being dealt with as telephone hearings. Parties should be aware of the need to ensure the judge has sight of the birth certificate and the CFO form by filing them at court 3 days prior to the hearing. However, over coming weeks in Liverpool at least I propose to adopt the new Birkenhead practice of having these hearings proceed as “paper hearings” to minimise the strain on the telephone capacity. Please see the attached guidance at Appendix II for the practice to be followed once adopted.

10.  Other matters

I am conscious that this is not a comprehensive list of all matters which proceed in the Liverpool and Chester civil courts at present and that there are various species of case, the method of hearing of which has yet to be resolved, and which will depend upon a number of circumstances. Both I and other senior judges are happy to receive representations about the best method of proceeding in the current climate. After all, we are all on a learning curve. Please send any suggestions my Diary Manager, Alison Blunsden, at;

·         Please note in relation to the above arrangements, that orders will be sent out by the court where the listing is to be varied, or where a case is to be vacated. In all instances the order should include the right of the parties to apply pursuant to CPR 3.3 (5) for a variation of that order. Exceptionally it might be considered that either a telephone hearing is inappropriate, or that a case otherwise due for a face-to-face hearing should not be vacated. Formal applications for a variation with the payment of fee are unnecessary, but any request should be put in writing, with full and cogent reasons given as to why an exceptional course should be taken. This request will be referred to a judge, who may consider a brief telephone hearing if it is considered to be valid.
·         These arrangements are being put in place in the Liverpool and Chester civil courts. I have liaised with the district judiciary in Birkenhead, St Helens and Crewe and it should be expected that similar arrangements will be followed in those courts. However, because each court centre has different resources and priorities, you should consult the individual court to determine their practice over the coming weeks and not assume that it will precisely coincide with the Liverpool arrangements.

I also set out in the separate sheet attached at Appendix I, guidance for the practice to be followed for those cases which are now converted to remote hearings (i.e. not face-to-face).  This applies principally to the cases described at paragraph 4. Separate guidance will be provided in relation to stage 3 and disposals when it has been agreed with practitioners.

Kind regards

Graham Wood

His Honour Judge Graham Wood QC
Designated Civil Judge for Cheshire and Merseyside
21st March 2020

Appendix 1
The Guidance

1.    This guidance applies to all interim applications, costs and case management conferences and pre-trial reviews listed to be heard on or after Monday 30th March 2020 in the County Court at Liverpool and Chester or in the District Registry of the Queen’s Bench Division in Liverpool. It does not apply to the Business and Property Courts.

2.    All hearings covered by this guidance shall be conducted by telephone, skype, BTMeetMe or some other mutually convenient method. In each case arrangements for the remote hearing shall (unless otherwise agreed in writing between the parties) be made by the Claimant or, if the Claimant is a litigant in person the first named represented party

3.    No less than 3 days before the hearing is to take place the parties shall send to the court at

a.    An agreed focussed reading list of documents for the Judge who will conduct the hearing together with an agreed estimate of the time it will take the Judge to read the documents.

b.    attached to the email as separate attachments each document referred to in the reading list or where appropriate relevant extracts from such documents. The total length of the attachments when printed shall not exceed 50 pages and the total size of the email and its attachments must be less than or equal to 10mb.

4.    The parties should prepare the focussed reading list and attachments on the basis that the Judge may have no previous knowledge of the case and may not have access to the court file.

5.    Not less than 2 days after the telephone hearing the Claimant shall draft the order (in Word) and send it to the court at

6.    To help the court you must file your electronic Court documents correctly. The subject field of any email sent to the court must include the following:

a.    Case number
b.    Party names (abbreviated where appropriate)
c.     The date and time of any hearing to which the email relates
d.    Subject matter title
eg E43YJ345 Smith v Jones hearing 23 March 2020 @ 2pm – list of documents

Appendix 2

Due to the ongoing Public Health crisis concerning Covid-19, there is a need to reduce attendance at Court to a minimum whilst, in so far as is possible, enabling matters to be dealt with.

The arrangements for Infant Approval hearings in Birkenhead are being varied with effect from 26 March 2020. The arrangements will last, in the first instance, until 1 June 2020. This is to enable the hearing to proceed remotely. For the avoidance of doubt, these steps are to be considered “a hearing” for the purpose of costs.

The Claimant’s solicitor will need to file at Court, electronically, the following documents:
1.       The medical report;
2.       The Claimant’s Litigation Friend’s witness statement;
3.       Confirmation from the Defendant as to the final offer and the position on costs;
4.       A certified copy of the Birth Certificate; and
5.       IN A SEPARATE PDF, a signed copy of the C320

The judge will then, insofar as is possible, approve the award and complete the relevant paperwork without attendance of the parties.
There should also be details included within the e-mail of a representative of the Claimant who can be contacted at the time of the hearing as is necessary.
In any case where the award cannot be approved, further listing directions will be given.
This memo is being distributed to the Claimants’ Legal Representatives in all up-coming lists. It is their responsibility to forward this memo to a representative of the Defendant.
Of course, should either party have representations at the hearing, they are free to do so but they will need to be made in writing.