Capacity and sexual relations: Fallout from Re JB – Doughty Street Chambers

Posted February 25th, 2021 in consent, Court of Protection, disabled persons, learning difficulties, news, sexual offences by sally

‘In a judgment handed down on 23 February, Cobb J concluded that a young woman known as HD lacked capacity to engage in sexual relations. He was driven to this conclusion based on the new requirement set out in Re JB that a person with capacity to engage in sexual relations must be able to understand (and retain, use or weigh and communicate) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity.’

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Doughty Street Chambers, 24th February 2021

Source: insights.doughtystreet.co.uk

Family courts rule to inoculate children when parents disagree on the vaccination of their children – Garden Court Chambers

Posted February 25th, 2021 in children, consent, coronavirus, human rights, news, parental responsibility, vaccination by sally

‘Following the decision in Re H (A Child: Parental Responsibility: Vaccination), it was clarified that where two parents with parental responsibility disagree as to the proper course of action with respect to vaccination, the court becomes the decision maker through the mechanism of a specific issue order made under s8 of the Children Act 1989.’

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Garden Court Chambers, 24th February 2021

Source: www.gardencourtchambers.co.uk

The Effect of Foreign Jurisdiction Clauses on the Summary Enforcement of UK Adjudication Awards in Construction Contracts – 39 Essex Chambers

Posted February 25th, 2021 in chambers articles, construction industry, contracts, dispute resolution, enforcement, foreign jurisdictions, jurisdiction, news by sally

‘In the very interesting case of Motacus Constructions Ltd v Paolo Castelli SPA [2021] EWHC 356 (TCC), handed down on 22 February 2021 Judge Hodge QC determined:

“the apparently novel question whether the inclusion within a construction contracts for works in England of an exclusive jurisdiction clause in favour of a foreign court precludes the English court from entertaining proceedings for breach of the term implied by paragraph 23 of the Scheme [i.e. the Scheme for Construction Contracts] that the decision of an adjudicator binds the parties until the final determination of the dispute”.’

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39 Essex Chambers, 24th February 2021

Source: www.39essex.com

“Egregious” failings in expert evidence: a shot across the bows from the Court of Appeal (Criminal Division) – 6KBW College Hill

Posted February 25th, 2021 in conspiracy, evidence, expert witnesses, fraud, news by sally

‘The conjoined appeals in R v Byrne and ors. [2021] EWCA Crim 107 related to the safety of convictions arising from separate trials in which the Crown had instructed the same expert, Andrew Ager. Although the convictions were found to be safe, both Ager himself and the prosecution came in for stark criticism, particularly in light of previous high-profile failings in this area in R v Pabon [2018] EWCA Crim 420. The case provides the clearest reminder to all parties in criminal proceedings to ensure compliance with the requirements relating to expert evidence.’

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6KBW College Hill, 17th February 2021

Source: blog.6kbw.com

Chelsea Brooke-Ward discusses: Uber BV and others v Aslam and Others – Park Square Barristers

Posted February 25th, 2021 in compensation, holiday pay, minimum wage, news, self-employment, Supreme Court, taxis by sally

‘In a landmark decision the Supreme Court has ruled that The Central London Employment Tribunal, and the Court of Appeal were correct to find that the Claimant Uber drivers were “workers”, rather than independent contractors. ‘Whether a contract is a ‘worker’s contract’ is a matter of statutory interpretation, not contractual interpretation. That involves taking a purposive approach which, in the employment context, is to protect those who are vulnerable as a result of their subordination to, and dependence upon, another person in relation to their work. In the case of Uber, the employment tribunal’s findings on the relative degree of control exercised by Uber and drivers respectively over the service provided to passengers justified its conclusion that the drivers were workers,’ according to the Supreme Court.’

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Park Square Barristers, 24th February 2021

Source: www.parksquarebarristers.co.uk

Case Comment: R (Good Law Project & Others) v Secretary of State for Health AND Social Care [2021] EWHC 346 (Admin) – Late Publication of Coronavirus Contracts Unlawful – 39 Essex Chambers

Posted February 25th, 2021 in contracts, coronavirus, judicial review, locus standi, news, public interest, public procurement by sally

‘Last Friday Chamberlain J handed down judgment in a challenge concerning the government’s compliance with procurement law and its own transparency guidance in the awarding of goods and services contracts during the COVID-19 pandemic. By reg. 50 of the Public Contracts Regulations 2015 the Secretary of State for Health and Social Care was obliged to send for publication a contract award notice (“CAN”) not later than 30 days after the award of a contract. By its transparency policy and principles it was obliged to publish details of any contract.’

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39 Essex Chambers, 23rd February 2021

Source: www.39essex.com

Stuck Between a Virus and a Human Rights Breach… – Garden Court Chambers

Posted February 25th, 2021 in carers, coronavirus, fostering, human rights, local government, news by sally

‘These are strange times and the risks posed by the pandemic are constantly changing and increasing. The impact of this on individuals is significant and concerns about personal safety are high. Balancing those concerns with schooling, home schooling and contact means this will become even more difficult.’

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Garden Court Chambers, 24th February 2021

Source: www.gardencourtchambers.co.uk

Capacity to consent to marriage, nullity and declarations under the inherent jurisdiction considered (NB v MI) – 1GC: Family Law

Posted February 25th, 2021 in consent, family courts, islamic law, jurisdiction, marriage, news by sally

‘The High Court was presented with an application for a declaration of nonrecognition of a Muslim marriage and a petition for nullity. The parties were married in Pakistan under Sharia law in June 2013. The applicant sought to argue, relying on two expert reports, that she did not have capacity to consent to marriage at the time. The court had to consider the issue of her capacity and then consider whether to make a declaration of non-recognition, or alternatively annul the marriage. The High Court refused the applications as it considered, on the facts of this case, the applicant had capacity to consent at the relevant time. The marriage was therefore valid under English law at its formation. Even if he had formed the opposite view, Mr Justice Mostyn made clear the court would still not have made a declaration under the court’s inherent jurisdiction as he was prevented by statute. Tahmina Rahman, barrister at 1GC Family, considers the case.’

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1GC: Family Law, 16th February 2021

Source: 1gc.com

New Requirements for Witness Statements – 3 Hare Court

Posted February 25th, 2021 in documents, news, practice directions, witnesses by sally

‘From 6 April 2021, a new regime for witness statements in the Business and Property Courts will come into force. Practice Direction 57AC will introduce significantly tighter requirements that will apply to all trial witness statements signed on or after 6 April 2021, including those in claims that have already been issued.’

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3 Hare Court, February 2021

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Alexandra Wilson examines the Court of Appeal ‘Encrochat’ judgment: A, B, D & C v Regina [2021] EWCA Crim 128 – 5SAH

Posted February 25th, 2021 in admissibility, evidence, interception, investigatory powers, news, telecommunications by sally

‘Alexandra Wilson provides an update on the latest Encrochat position following the judgment in A, B, D & C v Regina [2021] EWCA Crim 128.’

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5SAH, 18th February 2021

Source: www.5sah.co.uk

‘No Go’ For Offshore Wind Farm DCO – Simon Randle and Vivienne Sedgley – 4-5 Gray’s Inn Square

Posted February 25th, 2021 in energy, environmental protection, news, offshore installations, planning by sally

‘A local resident has successfully challenged the Secretary of State’s development consent order (“DCO”) for one of the world’s largest offshore wind projects on the grounds that the cumulative landscape and visual impacts of both this Vanguard project and its “sister” Boreas project (for which a DCO decision is expected in April 2021) were not take into account.’

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4-5 Gray's Inn Square, 22nd February 2021

Source: www.4-5.co.uk

Using leasehold property for holiday lets – Becket Chambers

Posted February 25th, 2021 in covenants, holidays, leases, news by sally

‘As we start to consider the possibility of lockdown lifting and our thoughts recklessly stray to the idea of getting away from it all, I thought I would dampen the exuberance by reminding us all of the perils of using leasehold property for holiday lets (Airbnb or otherwise).’

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Becket Chambers, 24th February 2021

Source: becket-chambers.co.uk

Capacity and best interests in relation to Covid-19 Vaccination – Garden Court Chambers

Posted February 25th, 2021 in care homes, consent, coronavirus, Court of Protection, elderly, mental health, news, vaccination by sally

‘Mrs E was aged 80 and lived in a care home. She had diagnoses of dementia and schizophrenia.’

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Garden Court Chambers, 22nd February 2021

Source: www.gardencourtchambers.co.uk

Specific Issue Order for Vaccination-including COVID-19: M v H (Private Law Vaccination) [2020] EWFC 93 (15 December 2020) – Parklane Plowden Chambers

Posted February 25th, 2021 in children, coronavirus, expert witnesses, human rights, news, parental responsibility, vaccination by sally

‘This hearing before MacDonald J was part of a wider private law dispute between parents regarding the children (P aged 6 and T aged 4) spending time with their father. A finding of fact hearing had already taken place, with a final hearing listed to commence on 21 December 2020. The original application from the father included a specific issue order, initially on MMR vaccination. This was then amended to vaccination in accordance with the NHS vaccination schedule.’

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Parklane Plowden Chambers, 24th February 2021

Source: www.parklaneplowden.co.uk

The pitfalls of relying on s21 during the pandemic – St Ives Chambers

Posted February 25th, 2021 in coronavirus, news, regulations, repossession, statutory interpretation, stay of execution by sally

‘Master Dagnall gave judgment in the case of Corp of Trinity House of Deptford Strond v (1) Dequincy Prescott (2) Clodagh Byrne on 11 February 2021 [2021] EWHC 283 (QB) which considered several issues regarding the pandemic and possession proceedings which are worthy of note as the stay on evictions has again been extended.’

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St Ives Chambers, February 2021

Source: www.stiveschambers.co.uk

Discretionary Life Sentences – Setting the minimum term – ½ or 2/3 of the notional determinate sentence – Doughty Street Chambers

Posted February 25th, 2021 in attorney general, dangerous offenders, news, sentencing, terrorism by sally

‘James Wood QC discusses recent sentence appeals on minimum terms in discretionary life sentences. He assesses the likely impact of the recent statutory changes increasing the minimum term to be served by some prisoners serving determinate sentences from ½ to 2/3. He identifies prosecutorial appeals to increase minimum terms in discretionary life sentences by the Attorney General, and warns that the judicial and statutory drift appears to be towards a similar lengthening from ½ to 2/3 of the minimum term to be served by those sentenced to discretionary life sentences on grounds of dangerousness.’

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Doughty Street Chambers, 24th February 2021

Source: insights.doughtystreet.co.uk

Judgment in Good Law Project JR on publication of Covid-19 procurement notices – Monckton Chambers

Posted February 25th, 2021 in contracts, coronavirus, judicial review, locus standi, news, public interest, public procurement by sally

‘This is the first in a series of procurement law judicial review (JR) cases relating to Covid-19 brought by the Good Law Project (GLP) to have reached the judgment stage. The case concerned the (non)publication of contract award notices (CANs) within 30 days under regulation 50 Public Contracts Regulations 2015 (PCR) and of other contract notices and materials within 20 or 90 days under relevant transparency policies.’

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Monckton Chambers, 19th February 2021

Source: www.monckton.com

Has the pandemic changed the way in which future jury trials may be conducted? – KCH Garden Square

Posted February 25th, 2021 in coronavirus, criminal justice, juries, news, remote hearings by sally

‘As anyone immersed in, or interested in, the Criminal Justice System will know, when the first lockdown was announced back in March 2020, in person attendance at court buildings almost ground to a halt. This inevitably meant that all jury trials were suspended, and serious thought had to be given as to how they could safely resume in the future. Social distancing rules and the concern of causing covid outbreaks meant that the reintroduction of jury trials was slow, but by July 2020 and through the introduction of Perspex screens in between jurors and the relaxation of some of the lockdown restrictions, they slowly started to return to barristers’ diaries across the country.’

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KCH Garden Square, 18th February 2021

Source: kchgardensquare.co.uk

Mistaken Payments and Mistakes of Law under the Limitation Act 1980 – Hardwicke Chambers

Posted February 25th, 2021 in corporation tax, limitations, mistake, news, subsidiary companies by sally

‘The FII Group Litigation (‘FII’) was established by an Order made on 8 October 2003 with the purpose of determining common or related questions of law arising out of the tax treatment of dividends received by UK resident companies from non-resident subsidiaries. The Test Claimants’ basic allegation was that their tax treatment (under domestic legislation long-since repealed), as compared to that of wholly-resident UK companies, breached TFEU provisions on freedom of establishment and free movement of capital. The Test Claimants therefore sought repayment of tax paid insofar as it was unlawful under EU law; in some cases, dating back to the UK’s accession in 1973.’

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Hardwicke Chambers, 24th February 2021

Source: hardwicke.co.uk

Uber BV v Aslam and Others – Old Square Chambers

Posted February 25th, 2021 in compensation, holiday pay, minimum wage, news, self-employment, Supreme Court, taxis by sally

‘In a landmark judgment which will have wide-ranging implications for workers and employers in the gig economy, the Supreme Court has upheld an employment tribunal’s decision that Uber drivers were workers and therefore entitled to the minimum wage, statutory annual leave and protection from detriment under the Employment Rights Act 1996.’

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Old Square Chambers, 19th February 2021

Source: oldsquare.co.uk