The decision of the Employment Tribunal was that Mrs. Harris’ claim was out of time and would have meant that her case was thrown out. Mrs. Harris successfully appealed to the Employment Appeal Tribunal (where she was represented by Oliver Assersohn). The employer refused to accept the outcome of the appeal and challenged Mrs. Harris’ success in the Court of Appeal. Andrew Short successfully persuaded the Court of Appeal by a majority to uphold the EAT’s decision.

Mrs. Harris was dismissed on 31 October 2005 having been informed that her employment would end on 24 October 2005. At her leaving party on 28 October 2005 Mrs. Harris said that “there were rumours going around…that I had been stitched up”. On Union advice, she wrote to the Respondent on 26 January 2006 in terms which she thought were challenging the dismissal but that were headed and framed as a grievance. She did not bring her claim for unfair dismissal until 21 April 2006 which is long after the limitation period had expired on 30 January 2006.

Mrs. Harris argued inter alia that time should be extended by Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 which extends time for a further 3 months in circumstances where, provided the threshold conditions prescribed in regulation 15(1) are met, the employee “had reasonable grounds for believing, when the time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise…was being followed in respect of matters that consisted of or included the substance of the tribunal complaint”.

The matter arose following an assessment made by the Inland Revenue against the owner of a fish and chip shop for £200,000 in alleged unpaid tax. The Claimant appealed the assessment. Unfortunately, he was out of the country and not contactable when the matter was listed and the appeal dismissed.

On learning of this he applied for a rehearing on the grounds of “having good and sufficient reason for failing to appear or be represented”. (Regulation 17 (1) of the relevant Regulations.) This application was refused with no explanation other than that the grounds were not believed.

Naomi is instructed by claimants and respondents in all areas of employment law. Her recent experience includes a number of significant EAT cases, and an award - likely to be one of the highest discrimination awards of 2008 - of over £200,000 for her client in a disability discrimination case against a local authority.

Robert Rhodes QC led Tim Nesbitt for the Claimant in an application for judicial review against the General Commissioners for Her Majesty’s Revenue and Customs, and HMRC as Interested Party. They were instructed by Feng & Co, accountants.

The Claimant is a Chinese restaurateur against whom assessments totalling some £200,000 were made in respect of underpaid tax. He appealed against the assessments but left the country, having had something approximating to a nervous breakdown, and was unaware of the date of the appeal. Since he therefore did not attend the appeal, the assessments were upheld, although the Commissioners commented that they seemed “a bit harsh”. In fact, the Claimant’s accountant has calculated that the assessments should have been no more than about £6,000.

The Claimant only discovered that the assessments had been upheld when, several months later, bailiffs attended at his home in England and saw his son. The Claimant applied for review of the determination to uphold the assessments, on the ground that he had “good and sufficient reason for failing to appear or be represented”. The Commissioners refused the application, giving no reasons beyond saying that they did not believe he had “good and sufficient reason” for not attending the hearing or being represented at it.

The Claimant applied for judicial review of that refusal. Collins J (the senior judge of the Administrative Court) gave permission. Despite that, HMRC threatened to issue a bankruptcy petition against the Claimant. The Claimant accordingly obtained an interim order from the Administrative Court enjoining HMRC from so doing pending a full hearing, upon the Claimant’s paying to HMRC £6,000 which he admitted to be his outstanding tax liability. The Claimant paid the £6,000.

Counsel settled a letter for the instructing accountant to send to the clerk to the General Commissioners, asking them to consider conceding the claim. In a complete departure from usual practice, the Clerk wrote to instructing accountants, agreeing to the rehearing of the application in respect of which of JR has been issued. HMRC have agreed that, pending that rehearing, they will not issue a bankruptcy petition. The application for JR is accordingly being withdrawn.  

Charles Foster represented the UK's number 1 Three Day Eventer and Olympic hopeful Oliver Townend in proceedings before the Disciplinary Committee of British Eventing, the governing body of the sport. The allegations arise out of verbal altercations at the Oasby Horse Trials in September 2007.

"Health and Safety case collapses. Judge accedes to defence submissions by Ben Compton leading Oliver Assersohn that the delay by the CPS and HSE in prosecuting Anthony Ward for health and safety offences, following a gas explosion in a village at which he was a warden, amounted to a breach of their client's Article 6 convention rights and stayed the case as amounting to an abuse of the court's process". Solicitors Berrymans Lace Mawer.

“ Harry Trusted was junior counsel for two of the successful Claimant/Respondent in the recent case of Tameside v Thompstone [2008] EWCA Civ 5.  The Court of Appeal heard four appeals which were consolidated as to the issues of the indexation of periodical payments.  The Court upheld the first instance judgments which had supported the Claimants’ contention that where periodical payments are designed to meet future costs of care and case management, those costs should be indexed by reference to the appropriate percentile of  ASHE 6115.  The Court also gave guidance as to the ways  in which judges should approach the practicalities of periodical payment hearings.”

“David E. Grant acted for the successful Respondent BT in Chittoo v BT [2007] EWHC (Ch) in which Mr Justice Morgan's careful judgment in rejecting the appeal of Ms Chittoo is further evidence of the difficulty in challenging the decision of the Pensions Ombudsman that the Trustees of an occupational pension scheme were entitled to decide not to award an ill-health pension to a member. In essence Mr Justice Morgan held that the Ombudsman had not acted perversely in deciding that the Trustee. However, the scope of the Ombudsman's Jurisdiction interested the judge who, unusually, asked for supplemental written submissions on the scope of the Ombudsman's power to determine a dispute of fact or law. Although the Appellant's position was unclear, it was subsequently clarified that the Appellant was only seeking to appeal on the basis that the Ombudsman's decision was perverse. Accordingly, further deliberation on the precise scope of the jurisdiction awaits."

2007] EWHC 2944 (Ch)

Ch D (Morgan J) 11/12/2007

PENSIONS - EMPLOYMENT

EARLY RETIREMENT : MEDICAL EVIDENCE : PENSION SCHEMES : PENSIONS OMBUDSMAN : ONUS ON PARTIES TO PROVIDE EXPERT REPORTS : FAILURE TO OBTAIN REPORTS : BASIS OF DECISIONS

An employer's decision that an employee did not meet the criteria for retirement on medical grounds was not perverse, as it was a view that a reasonable person approaching the correct question in a proper manner could adopt.

The appellant (C) appealed under the Pension Schemes Act 1993 s.151(4) against a decision of the Pensions Ombudsman after she was dismissed from her employment with the respondent company (BT). C had been absent from work on sick leave. She was later charged with misconduct in the course of her employment and dismissed, aged 43. Under the terms of BT's pension scheme, C was entitled to an immediate pension if she was certified by BT as having retired under its medical retirement procedure. BT was advised that there was no evidence to indicate that C was permanently incapacitated, and that medical retirement would not be supported. Later, BT said it was prepared to consider an application for early retirement on medical grounds and invited C to submit any additional medical evidence on which she relied. However, subsequently it informed C that it had been advised that the criteria for early retirement on medical grounds were not met. C's general practitioner told the company advising BT that a senior consultant (W) was extremely pessimistic about the likelihood of improvement in C's condition, but the GP did not provide W's report. A thorough medical report by another expert (M) indicated that C did not fulfill the criteria for medical retirement. A letter from W supported C's position that she was permanently incapacitated but, although C had a copy of it, she did not give it to BT before it made its decision. The ombudsman upheld BT's decision. C submitted that (1) BT acted wrongly or "improperly" in failing to obtain a report from W, so that BT's decision-making was flawed; (2) BT's decision, based on M's report, was perverse.

HELD: (1) BT made clear to C that it would consider the evidence that she wanted to rely on. The onus was upon her to put it forward. Although C apparently had a copy of W's report she did not produce it for B to consider. Her GP's letter referred to W's views, which were available to M. BT was not obliged to approach W. BT did not act wrongly or improperly and was not guilty of maladministration. The ombudsman did not err in law in relation to that question. (2) M had carefully assessed all the medical evidence put before her by BT or C. There was little or no difference of opinion on C's past medical history or as to her condition in the period leading up to the termination of her employment. What had to be assessed was whether C had demonstrated that she was likely to be permanently unable to perform her duties, and permanence had to be judged for a comparatively long period of 17 years between C's then current age of 43 and the normal pensionable age of 60. M accurately described the opposing views on that issue and recommended her preference to BT, who accepted it. There was no doubt that the view adopted by BT was a one that a reasonable person approaching the correct question in a proper manner could adopt, so BT was not perverse to reach the conclusion that it had done. As its conclusion was not perverse it necessarily followed that the ombudsman was not perverse to reach the same conclusion as the court.

Appeal dismissed

Counsel:
For the appellant: Mark Simeon Jones
For the respondent: David E Grant

Solicitors:
For the appellant: PM Law Ltd
For the respondent: Company Solicitor

LTL 18/12/2007 (Unreported elsewhere)

Judgment: Approved - 13 pages

Document No. AC0115737

 LAILA CHITTOO -V- BRITISH TELECOMUNICACATIONS PLC (2007)

Alan Rawley QC and Hywel Jenkins recover £2.05 million for defrauded Pensioners 

 About 200 Scottish workers are set to benefit after a jailed entrepreneur was forced to repay more than £2m he plundered from their pension fund.

Richard Lissack QC and Susan Freeborn have been instructed by Leslie Burke to take his ‘right to life’ case to the European Court of Human Rights in Strasbourg.

 He suffers from a degenerative condition which will leave him dependent upon artificial nutrition and hydration “ANH” in the future. The GMC guidance on providing ANH permits a doctor to decide whether the life of a patient who can no longer express a view on the issue, should be continued by the provision of ANH.

Mr Burke challenged this guidance successfully at first instance, but that decision was overturned by the Court of Appeal in 2005. He is now seeking to have his right to life under the Convention secured by the ECHR. His legal team will be applying for an expedited hearing for obvious reasons.

The case raises a wide range of issues on when and whether the withholding/withdrawing of ANH can amount to inhuman and degrading treatment, to what extent are treatment decisions a matter of a patient’s private and family life, whether Mr Burke is being discriminated against on the basis of his condition and by what standard should the quality of a life be judged if someone other than the patient is determining whether it should continue.

The conference is the AvMAs 20th Annual Clinical Negligence Conference and will include a session on - Interface between Civil Negligence and Criminal Gross Negligence - R v Southampton

The lecture will be at: Barlow Lyde & Gilbert LLP, Beaufort House, 15 St. Botolph Street, London EC3A 7NJ

Registration 6.00 for 6.30pm

There is an attendance fee of £35 as a contribution to CDF funds. (£25 for students, trainees and pupils)

It is essential that you book a place for the lecture.

An application form and further information is available by email from:

The Financial Services Lawyers Association is hosting a meeting on 26th November on the subject of:

Market Abuse: Striking the Balance Between the FSA's Anministrative and Criminal Powers.

Included in the evening will be a panel discussion hosted by Richard Lissack QC and also includes:

Michael Bowes QC, Outer Temple Chambers
Margaret Cole, Director of Enforcement, FSA
Simon Dodds, General Counsel Deutsche Bank

The evening will be held at:
Inner Temple Parliament Chamber
Time: 6.30pm

FSLA members can book online at www.fsla.org.uk.
For more information about membership, contact membership@fsla.org.uk

On 25th September 2007, Outer Temple Chambers is hosting a conference on the subject of Mental Capacity. We will be exploring the changes brought about by the new Mental Health Bill and the issues surrounding mental health law, mental capacity and clinical negligence.

A team of leading medical and legal experts will be speaking throughout the day and providing the opportunity to discuss and debate the issues raised.

For further information please download the attached information or contact Georgina Golding on georgina.golding@outertemple.com

Paul Garlick QC has been invited to give an address to the RoSPA Conference on 18th October on Road Deaths & Corporate Manslaughter.

The topic of his presentation will be "The decision to prosecute - the code for the Crown Prosecution Service". It will cover Prosecution for Corporate Manslaughter and Prosecution for Health & Safety offences.

Companies that pay scant regard to managing health and safety are on notice as the Government finally publishes its bill to reform the law of corporate manslaughter.

Corporations can be successfully prosecuted following work-related deaths due to their recklessness. Such cases will not be limited to fatal accidents in fixed workplaces but will include cases of death on the road caused by lack of care on the part of organisations.

Driving for work is the most dangerous work related activity performed by most people in the UK. It is estimated that more than 1,000 road deaths and 13,000 serious injuries each year occur while at work.

The potential impact on businesses is increasing rapidly as shown by the scale of recent fines; a record £15 million compared to the highest fine of £2 million before August 2005. It is no longer only the driver who will be held responsible. He or she can now be seen as a ‘victim’ of an organisation’s systems failure.

RoSPA’s Road Death and Corporate Manslaughter Seminar will help organisations of all kinds to check out their governance arrangements for health and safety risk

Peter Skelton has accepted an invitation to speak at the Action against Medical Accidents (AvMA) conference on Death, Dying and Damages - The Medico-Legal & Ethical Issues on 31st October 2006.

Peter Skelton's subjects will be Psychiatric damage following a death in hospital and Nervous shock.

The one day conference will take place at the MIC Conference Centre, London and will focus on the medical, legal and ethical aspects of death and dying and is targeted at solicitors and barristers who wish to expand or update their expertise in this area.

This conference attracts 5.5 hours accreditation for the Bar Council and 5 hours 40 minutes for The Law Society.

Robin Tolson QC is to speak at the Jordan's Family Law Conference at the Grosvenor House Hotel on 12th October - 500 delegates are to attend this flagship conference of the family law calender and his topic is 'The Latest Developments in the Law relating to Children'.  The Keynote speech is to be given by the President of the Family Division, Sir Mark Potter.  

For further details please click on the link below to be connected through to the Jordans website.

The registration of the barristers to the DIFCC is the next stage in Outer Temple's ongoing programme to increase its presence in the Middle East. In November 2007, the Chambers claimed the title as the first barristers set to open an annex in Abu Dhabi. This has resulted in a number of approaches from lawyers in other parts of the Middle East.

Outer Temple Chambers is committed to developing the Chambers work in this region and to service both the international and local corporate communities. Casework includes advising an Abu Dhabi institution in an international arbitration against a UK High Street bank (following our advice the parties agreed a settlement). There’ve been a number of LCIA arbitrations and further substantial arbitrations will take place arising from Abu Dhabi clients this year - many of which are in the pre-issue phase of the dispute. A series of meetings and lectures in the United Arab Emirates with some of the major banks and financial institutions are planned on aspects of banking law, commercial litigation and international commercial arbitration.

Charles Foster has accepted the Royal College of Physicians invitation to join a working party on ‘Nutritional Support and Swallowing Difficulties: the ethical and practical dilemmas at the end of life’.  The purpose of the working party is to produce a report currently described as ‘the ethical and practical dilemmas about feeding people – particularly those with dysphagia and poor prognosis – as they come to the end of life’.

Naomi Ling acted for the successful claimant in a case giving rise to important new Authority that the Serco principles, limiting statutory employment rights to employment "based in the UK", would not apply where the right was based on directly effective European law and where the relevant legislation was capable of being harmoniously interpreted with that law.

This an important for Claimants whose employers have deliberately sought to make it difficult to enforce employment rights by registering their companies where the employment is not based and by adopting the law of another country to govern the contract.

The Claimants was a lorry driver who worked mainly in Austria and Germany but whose contract of employment was with a company registered in England, was governed by English law and which sought to confer exclusive jurisdiction on the English courts.

Elais J held that, as with Employment Rights Act 1996, there was no express provision limiting the geographical scope of the Working Time Regulations, which were the relevant domestic law for giving effect to Article 7 of Council Directive 2003/88/EC on working time. Absent any question of EU rights, there was no reason to think that the Regulations should be interpreted differently from the interpretation of the ERA in Serco. However English law was the proper law of the contract, or where the Rome Convention applied English law employment relationships effect must be given to directly effective rights by construing them in a manner compatible with the directive.

Doubt was cast on authorities in which it had been found that the Serco test applied to claims brought under the Disability Discrimination Act and the Fixed Term Employment Regulation, on the basis had it been argued that the rights relied derived from directly effective European law.

Simeon Maskrey QC and Caroline Hallissey, instructed by Russell Cooke solicitors, have secured a record £5m compensation payout for Actress Leslie Ash after contracting MSSA (Methicillin-Sensitive Staphylococcus Aureus), a hospital-acquired infection at Chelsea and Westminster Hospital in London in 2004.

Miss Ash sustained a permanently disabling spinal cord injury as a result of the negligence of Chelsea & Westminster hospital. a significant part of her compensation was for her loss of earnings as she will be unable to work as an actress again.

Article by Frances Gibb and Michael Herman from The Times Online. 19/10/2007.

A prisoner in Georgia has been granted a stay of execution after round-the-clock efforts by leading lawyers from the UK.

A team of leading UK lawyers has succeeded in an eleventh-hour attempt to halt the execution of America's longest-serving prisoner on death row.

Jack Alderman was due to be executed today by lethal injection. On Wednesday, he distributed his possessions to other prisoners before being moved to the execution building in his Georgia jail.

But the execution has been stayed following days of round-the-clock effort by Clifford Chance, the world's largest law firm, and a team of London-based barristers led by Richard Lissack, QC, from Outer Temple Chambers.

Lawyers had argued that the execution should be stayed pending an appeal before the US Supreme Court on the legality of death by lethal injection. Several other states have stayed their executions but until yesterday, only Georgia had refused to do so.

Richard Lissack, QC, said: "A gross injustice has been avoided. But the fight to exonerate Jack and redress the greater injustice has just begun."

Other prominent London legal figures including Geoffrey Vos, chairman of the Bar Council, and Lord Goldsmith, the former Attorney-General, have also lent their weight to Mr Alderman's campaign.

The stay of execution, which cannot be appealed, will stand until after February 2008 when the case before the US Supreme Court is heard. America’s most senior court will decide if lethal injection breaches the US Constitution as "cruel or inhuman" punishment.

It is the first time that the Supreme Court has examined the issue since 2004 and the only time it has ruled directly on a method of execution since 1878 when it upheld the use of the firing squad.

However, Mr Alderman’s team of lawyers are already working on building a case to prove that his original conviction was flawed in the hope that a court will order a re-trial.

Jeremy Sandelson, the Clifford Chance partner who led the UK legal team, said: “We already have enough evidence to apply for a re-trial but we are busy building the strongest case possible.”

Mr Alderman was convicted in June 1975 of the murder of his wife and sentenced to death in the Superior Court of Chatham County, Georgia. He has always protested his innocence.

For nearly 32 years he has lived on "death row" in prison awaiting execution. Lawyers argue that his extended incarceration on "death row", coupled with his proposed execution and manner of it, are all individually unconstitutional and illegal.

The panel aim to examine in close detail the principal issues and law affecting liability in this area. It is hoped that the presentations will be of interest to all those who find themselves either on the side of claimant or defendant following these accidents, including lawyers, insurers, loss adjusters and experts. The seminar will qualify for 2.5 CPD points.

Andrew Short is speaking at the "Discrimanation Law in 2008" Conference on 25 January 2008.

On 4th October 2007, Robert Rhodes QC chaired a panel of high profile speakers at the Plus European D&O Liability Forum taking place at the Grange City Hotel, London.

Robert's session, entitled 'Tick Tock: Sub Prime: Was That a Flash in the Pan or has a Bomb Just Detonated?' explored the difficulties faced by insurers and reinsurers including the sub-prime collapse in the USA, how it occurred and the consequences of it.

The panel consisted of Simon Ballard, Credit Strategist at AMRO, Andrew Newman, Director of Carvill, Ed Smerdon, Partner at Reynolds Porter Chamberlain, Guy Williams, Head if AIG Europe (UK)'s Financial Instituions Underwriting Team, John Batch, SVP FINPRO Practice at Marsh Ltd, Chris Hewitt, Executive Director of Lockton Companies International Ltd and Dave Bradford, Editor-in-chief and VP of Advisen Ltd.

If you would like further information, please see the attached document.

The Pensions Litigation Committee will host a talk by Richard Hitchcock on the Financial Support Direction provisions of PS 2004. Richard advised the Determinations Panel in the ground breaking Sea Containers case. The Committee hope also to have insights on the FSD process from parties to the Sea Containers case recognising sensitivities arising from the fact that the case has now been referred to The Pensions Regulator Tribunal.

The meeting will be held at the offices of Hammonds, 7 Devonshire Square, Cutlers Gardens, London EC2M 4YH and will begin at 5.30pm for 6.00pm. 

The Committee hopes that attendees will be able to stay and join them for drinks which will be available after the event.

If you wish to attend please contact Wendy Gregory of Mayer, Brown, Rowe & Maw LLP by e-mail: wgregory@mayerbrownrowe.com or by telephone on 020 7334 2019.

A charge of £20 will be made on the door for this event. 

Gordon Bebb QC will deliver the keynote legal speech at the National Patient Safety Association (NPSA) Conference on 22^nd March 2007.

His subject is: “What if you were charged with corporate manslaughter?”

Delivering patient safety requires motivation and commitment from the top of each NHS organisation and from leaders throughout the service.  The expertise of safety specialists, the experiences of NHS Executives and patients, and the expectations of NHS inspectorates, will challenge delegates to examine the strength of their leadership and commitment to building a safety culture within their organisations.  With opportunity to network, debate and explore patient safety initiatives to support leadership, delegates will leave inspired to make a difference.

Paul Garlick QC is the principle speaker at a seminar to be held at Maclay Murray Spens LLP on 19th April 2007.

The seminar has been organised by The Expert Witness Institute and is on the topic of a new regime for Disclosure and Procedures for Expert Witnesses in the Criminal Courts.

This seminar has been designed to provide the expert witness with up-to-date information about the new procedures and the associated expanded duties under the new Criminal Procedure (CrPR) Rule 33 which will come into effect on 6^th November 2006.

The new duties will be explained and the major changes to legal practice explored for experts instructed by the various prosecution agencies including the CPS, HM Customs & Excise, SOCA or by the defence in criminal cases.

Programme

Who should attend:

Any expert who is contemplating appearing as an expert in any criminal proceedings whether on behalf of the prosecution or the defence.

The Institute is fortunate to have Paul Garlick QC to present the seminar.

Disclosure obligations under the criminal law

                        �� Definition of unused material

                        �� Discharging your obligations in the investigation process

                        �� Records – how long to retain

Record keeping

                        �� What to record

                        �� What to reveal

                        �� Index of unused material

Self Certification

                        �� Criminal procedure and Investigations Act

Working for the Defence

Other prosecuting agencies, HM Revenue & Customs, SFO, SOCA and the Health & Safety Executive.

For more information anda booking form please click below:

Paul Garlick QC is the speaker at a seminar that is being hosted by Outer Temple Chambers and run by The Expert Witness Institute on Monday 20th November 2006.

The subject of the seminar is:

"A new regime for Disclosure and Procedures for Expert Witnesses in the Criminal Courts"

Registration is at 17.00 hours and the seminar starts at 17.30 and finishes at 19.30 hours. A map for Outer Temple Chambers can be found on the Chambers website by clicking on the 'contact us' button.

The seminar will be chaired by Alex Brown who is EWI Governor and Forensic Accountant and the sole speaker is Paul Garlick QC of Outer Temple Chambers.

Click on the link below for more information about this seminar and to download the booking form.

Paul Garlick QC  has been invited as the international legal expert on the implementation of international human rights law by the Organisation for Security and Cooperation in Europe (OSCE).

Paul Garlick QC has been invited by the OSCE  to participate as the International Legal Expert at a seminar to be held by the OSCE in Ashgabat, Turkmenistan, on the implementation of international human rights law into the national legal system. The seminar will deal with the incorporation of international law into the country's domestic legal systems and the application of international human rights law by domestic courts. Paul Garlick will be acting as the International Expert at the seminar and he will be advising the seminar on these issues and on the role of judges and prosecutors in upholding international legal standards regarding the right to liberty and security. The seminar is to take place in Ashgabat, Turkmenistan, 27-30 November 2006.