A radical reconsideration of the burden of proof: Efobi v Royal Mail Group Ltd (EAT) – Cloisters

‘In an important decision on the correct interpretation of the burden of proof provisions in the Equality Act 2010, Efobi v Royal Mail, Tom Coghlin and Navid Pourghazi successfully appealed against an employment tribunal’s decision to dismiss a claimant’s race discrimination complaints.’

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Cloisters, 14th August 2017

Source: www.cloisters.com

S v Director of Public Prosecutions – WLR Daily

S v Director of Public Prosecutions [2017] EWHC 1162 (Admin)

‘The defendant was charged with an offence of tampering with a motor vehicle contrary to section 25 of the Road Traffic Act 1988 and tried before justices in the Youth Court. The justices dismissed a submission by the defendant that there was no case to answer and, having heard evidence from the defendant and considered the burden and standard of proof, the justices convicted him. A contemporaneuos note of the justices’ reasons read, inter alia: “We listened to the [defendant’s] evidence which did not persuade us that there was no intention to tamper with the [motor vehicle]. We are therefore sure you are guilty.”’

WLR Daily, 18th May 2017

Source: www.iclr.co.uk

High Court: Time to consider lowering burden of proof in the Solicitors Disciplinary Tribunal – Legal Futures

‘It is time to consider lowering the burden of proof used by the Solicitors Disciplinary Tribunal (SDT) from the criminal to the civil standard, Sir Brian Leveson, the president of the Queen’s Bench Division has said.’

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Legal Futures, 11th November 2016

Source: www.legalfutures.co.uk

Regina v Wilcocks – WLR Daily

Regina v Wilcocks

‘The defendant was charged with murder. He admitted that he had strangled his partner, but denied murder on the ground that he had suffered a loss of control and that he had a personality disorder such as to give rise to a defence of diminished responsibility. He was convicted of murder. He applied for permission to appeal against conviction on the grounds that the trial judge had: (i) been wrong to decide that the burden of proof in relation to diminished responsibilty lay on the defendant under section 2 of the Homicide Act 1957, as amended, notwithstanding article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms; (ii) misdirected the jury in relation to the words “general capacity for tolerance or self-restraint” in section 54(3) of the Coroners and Justice Act 2009; and (3) failed to give the jury guidance on the meaning of the word “substantially” in section 2(1)(b) of the 1957 Act.’

WLR Daily, 3rd November 2016

Source: www.iclr.co.uk

Moyo v Nursing and Midwifery Council – WLR Daily

Moyo v Nursing and Midwifery Council [2015] EWHC 3547 (Admin); [2015] WLR (D) 555

‘In fitness to practise hearings there was no formal burden or standard of proof at the sanction stage of the proceedings; rather it was for the panel to use its own professional judgment to decide what sanction would be proportionate in order to protect the public interest, which included: (1) protection of patients and others; (2) maintenance of public confidence in the professions and the regulatory body; and (3) declaring and upholding proper standards of conduct and behaviour.’

WLR Daily, 10th December 2015

Source: www.iclr.co.uk

Court of Appeal rules burden for proving sham marriage rests with Home Office – Free Movement

‘The Court of Appeal has reiterated that the burden of proof for proving whether a marriage is a sham for immigration law purposes rests with the Home Office. The case is Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 and it confirms the obiter remarks of former President Blake in the earlier tribunal case of Entry Clearance Officer, Nicosia v Papajorgji [2012] UKUT 00038 (IAC) (FM post: New case law on meaning of genuine and subsisting marriage).’

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Free Movement, 9th December 2015

Source: www.freemovement.org.uk

MOJ Portal Stage 3 and Part 36: What are protocol offers? – Park Square Barristers

‘A regular issue that is being raised at MOJ Stage 3 hearings, particularly since the introduction of the 13th edition of the JC Guidelines: can parties make new offers in their Part B forms and benefit from the cost consequences of Part 36.29 for beating/matching them? This article aims to set out the relevant rules and paragraphs to determine this issue.’

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Park Square Barristers, 6th November 2015

Source: www.parksquarebarristers.co.uk

Refusing a subject access request: proportionality, anxious scrutiny and judicial discretion – Panopticon

Posted August 26th, 2015 in burden of proof, data protection, disclosure, news, police, proportionality by sally

‘Zaw Lin and Wai Phyo v Commissioner of Police for the Metropolis [2015] EWHC 2484 (QB), a judgment of Green J handed down today, is an interesting – if somewhat fact-specific – contribution to the burgeoning body of case law on how subject access requests (SARs) made under the Data Protection Act 1998 (DPA) should be approached, both by data controllers and by courts.’

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Panopticon, 25th August 2015

Source: www.panopticonblog.com

Revenge porn: ‘We need a second law to stop porn sites escaping justice’ – Daily Telegraph

Posted August 4th, 2015 in burden of proof, civil justice, crime, harassment, internet, news, pornography, victims by sally

‘The Government needs to introduce a second civil law to tackle revenge porn – because the current criminal law does not go far enough to help victims – according to a specialist in the field.’

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Daily Telegraph, 4th August 2015

Source: www.telegraph.co.uk

Service charges, the burden of proof and reasonableness of decisions – Park Square Barristers

‘Last week wrote an introductory article on a service charge case, The Gateway (Leeds) Management Ltd v Naghash and Shamsizadeh (citation above), a decision of Martin Rodger QC, Deputy President in the Upper Tribunal (Lands Chamber), in which I acted for the Defendants/Respondents. The facts are set out in that piece, and I do not propose to rehearse them here.’

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Park Square Barristers, 15th July 2015

Source: www.parksquarebarristers.co.uk

Summary Disposal of Unfair Relationships Claims: Axton & Axton v GE Money Mortgages Limited and another [2015] EWHC 1343 – Henderson Chambers

Posted July 27th, 2015 in burden of proof, consumer credit, insurance, news by sally

‘The High Court (Swift J, 22 May 2015) has upheld an order dismissing a claim under section 140A of the Consumer Credit Act 1974 (CCA) on the summary basis, in the absence of conduct on the part of a lender causative of unfairness in a debtor/creditor relationship.’

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Henderson Chambers, 3rd June 2015

Source: www.hendersonchambers.co.uk

Government accepts case to exempt lawyers from ‘groundless threats’ laws – Legal Futures

‘Lawyers who act on instructions in threatening potential intellectual property infringers with action are to be exempt from being sued when the threat turns out to be groundless, after the government recently gave the go-ahead for law reforms.’

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Legal Futures, 13th April 2015

Source: www.legalfutures.co.uk

Disability discrimination goes to full trial – Nearly Legal

‘When the Court of Appeal held that a disability discrimination defence to possession under Equality Act 2010 had to face the same ‘seriously arguable’ summary test as an Article 8 defence, we were surprised, and very unimpressed. It seems the Supreme Court felt similarly (and unanimously), although sadly it did not help the tenant in this case.’

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Nearly Legal, 29th March 2015

Source: www.nearlylegal.co.uk

Law firms need to rethink approach under ‘fundamentally dishonest’ rule, barristers warn – Litigation Futures

Posted February 23rd, 2015 in barristers, burden of proof, law firms, news, personal injuries, solicitors by sally

‘Claimant solicitors have been warned that they need to review their retainers and advise clients about the implications of the new ‘fundamentally dishonest’ rule being introduced shortly.’

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Litigation Futures, 23rd February 2015

Source: www.litigationfutures.com

Presumed guilty? Ministry of Justice is forced to withdraw advice leaflet – The Guardian

‘Red-faced Ministry of Justice (MoJ) officials have been forced to deny claims that they had dismantled a centuries-old cornerstone of British law in advice that the ministry gave to people facing criminal trials.’

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The Guardian, 1st February 2015

Source: www.guardian.co.uk

Non-accidental Injury and Re-balancing the Burden of Proof – Family Law Week

Posted December 1st, 2014 in burden of proof, care orders, child abuse, child neglect, news, personal injuries by tracey

‘Dr John Fox, barrister of Lamb Building, reviews some recent cases which may suggest a re-consideration of the burden of proof in cases of alleged non-accidental injury.’

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Family Law Week, 27th November 2014

Source: www.familylawweek.co.uk

Birmingham ‘exploitation’ order: Two more men banned – BBC News

Posted November 21st, 2014 in burden of proof, child abuse, injunctions, local government, news, sexual grooming by tracey

‘Two more men have been banned from contact with young girls in an “innovative” High Court case to prevent child sexual exploitation.’

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BBC News, 20th November 2014

Source: www.bbc.co.uk

Interflora Inc and another v Marks and Spencer plc (No 5) – WLR Daily

Posted November 11th, 2014 in advertising, appeals, burden of proof, internet, law reports, trade marks by tracey

Interflora Inc and another v Marks and Spencer plc (No 5): [2014] EWCA Civ 1403; [2014] WLR (D) 473

‘On a claim for infringement of a trade mark under article 5(1)(a) of Council Directive 89/104/EEC through keyword advertising the onus of proof lay on the trade mark proprietor to establish that the advertisement complained of did not enable normally informed and reasonably attentive Internet users, or enabled them only with difficulty, to ascertain whether the goods or services referred to by the advertisement originated from the trade mark proprietor or an undertaking economically connected to it or, on the contrary, originated from a third party.’

WLR Daily, 5th November 2014

Source: www.iclr.co.uk

No loss of confidence – establishing causation in confidential information claims – RPC Privacy Law

‘This case is an interesting example of a claim for breach of confidence (both in contract and in equity) where, although liability was established, only nominal damages (£1) were awarded to the Claimant.’

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RPC Privacy Law, 7th October 2014

Source: www.rpc.co.uk

The different burdens of proof in “highway tripping” and “shop slipping” cases – Zenith PI Blog

Posted September 9th, 2014 in accidents, burden of proof, news, personal injuries by sally

‘There is an important difference in the burden of proof between tripping accidents on highway and slipping accidents in shops.’

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Zenith PI Blog,

Source: www.zenithpi.wordpress.com