Paramount Legal Costs Newsletter Issue 9

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Welcome to a very special edition of our newsletter.

On 3rd May 2017, Paramount will be celebrating our 10th Anniversary. We’ve certainly come a long way since our first day in business when myself and Christine shared a tiny office on the outskirts of Penrith!

Over the past 10 years the legal costs landscape has changed dramatically in many ways but particularly in relation to Personal Injury legislation. In the early days, we only offered a costing service for Personal Injury work so we’ve diversified massively over the years and had to roll with the punches in order to develop and grow the business.

Again, with the announcement of the General Election on 8th June and the Government’s decision to abandon the Prisons and Courts Bill for the time being, we are left in a position where we are all unsure what the future holds for the industry.

As a firm, we have grown significantly, the team now numbers 12 and we specialise in virtually every area of costs.

I’m very proud of everything we’ve achieved and especially proud of the amazing group of people who work for Paramount who have helped us go from strength to strength whilst continuing to offer a “totally professional and personal approach to legal costs” which is the aim we set out with back in 2007. I would also like to thank all of our Clients for their support over the past 10 years which has enabled us to become the successful business we are today. www.paramountlegalcosts.co.uk

As well as celebrating our 10th Birthday we wanted to do something memorable and also raise funds for charity. As such, the team has chosen 10 charities to represent and we will be taking part in a number of events throughout the year.

Details of our chosen charities appear on Pages 2 – 7 along with information regarding the challenges we will be undertaking. Any donations to our charities would be gratefully received.

There is an important Private Client update on Page 8 regarding increases to fixed costs in the Court of Protection.

Hardly an issue of the newsletter goes by without proportionality being involved and as such, Lee’s article on Page 9 provides the latest update on the subject.

Craig Foxcroft, from our regular contributors Armstrong Watson, has written an article regarding the Government Reforms to transform the tax system. This is covered on Pages 9 and 10.

From page 11 onwards, we also have a selection of case law from Julie, Nicola, Melanie, Alan, Claire & Amanda.

As always, we hope you enjoy reading this special edition of our newsletter.

If you have any questions, would like to discuss anything with us regarding our services or would like a copy of the newsletter, please feel free to get in touch by clicking here.

Martin is the Managing Director at Paramount. If you have any comments or questions regarding this issue of the newsletter you can email him here.

CONTENT S Pages 2 - 7 Celebrating 10 years Page 8 Private Client Update Page 9 Proportionality

by Lee Whitehead Page 10 - 11 Government Reforms To Make Tax Digital

by Craig Foxcroft from Armstrong Watson Pages 12 - 16 Case Law Summary

Paramount Legal Costs Ltd | April 2017

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CELEBRATING 10 YEARS We are celebrating our 10th anniversary this year!

As part of the celebrations the team have chosen 10 charities to work alongside and raise money towards their vital services to not only the local community but further afield as well.

Alongside all our individual events, Paramount will be hosting a quiz night on Friday 7 July at Tullie House in Carlisle, where all proceeds from the night will be split equally between the 10 charities.

If you would like to join us for the quiz night please contact Karen by clicking here.

2017 will be a very exciting year celebrating a very special occasion and we are looking forward to sharing our adventures on our website and on twitter @ParamountCosts

OUR 1 0 CHARITIE S

My chosen charity is Alzheimer’s Society. Their research programme focuses on improving care for people with dementia today and finding a cure for tomorrow.

My Nana suffered with Alzheimer’s for many years before her death in 1996 and, as a family, we could only watch as her memory got steadily worse and she eventually forgot who we were. Alzheimer’s is a cruel disease and, unfortunately, the number of deaths where dementia and Alzheimer’s were listed as the underlying cause have been steadily increasing over the last 15 years or so. It is therefore vitally important that we find a cure for all forms of dementia as soon as possible.

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Alzheimer’s Society is transforming the landscape of dementia forever. Until the day we find a cure, we will create a society where those affected by dementia are supported and accepted, able to live in their community without fear or prejudice.

Along with Gina, Julie and Nicola, I will be walking around Talkin Tarn ten times on Tuesday 13 June. This distance will be the equivalent of completing two marathons (half a marathon each). We hope to complete the challenge in around 5 hours.

If you would like to sponsor Julie please click here.

Paramount Legal Costs Ltd | April 2017

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The Calvert Trust was established in 1976 in order to enable people with disabilities to benefit from outdoor activities in the countryside. In order to do this, the facilities are accessible for those with all disabilities, and everyone can truly enjoy the countryside and benefit from outdoor activity.

Having grown up on the edge of the Lake District, I know how enjoyable it is to spend time in the great outdoors, and the Calvert Trust make this accessible to all.

opportunities. It can be difficult for families to get away and find activities to suit the needs of all the family, but here those opportunities are available.

On 16 September 2017, I will be walking a section of Hadrian’s Wall (circa 25 miles) with Martin. I live “on the wall” and see the hundreds of visitors each year passing my front door, so wanted to do something that was very local to where I live and enjoy the wonderful local scenery.

They enable families to take holidays when otherwise this would not be possible, and allow everyone to share in life’s

If you would like to sponsor Tom please click here

In October this year, together with my insane friend and colleague Karen (who came up with this mad idea), I am taking on Zip World Velocity, the longest zip line in Europe and the fastest in the world, at speeds in excess of 100 miles per hour.

If you would like to sponsor Christine please click here.

Those of you that know me know that I really don’t ‘do’ heights, so I will be attempting to conquer one of my greatest fears and at the same time raising money for a charity close to my heart.

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Paramount Legal Costs Ltd | April 2017

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I was staggered to find out that so many people currently find themselves in poverty in an age where so many of us take our abundance of food as a given, are able to feed our families each day and do not have to live with the constant worry of how we will be able to do so. I felt it was really important to support Carlisle Foodbank to be able to help people who cannot even afford the basics they need.

I am keen to impress the importance of this upon my children and we buy something each week when food shopping to donate during our supermarket shop and when asked to choose a charity, this was my immediate choice.

We are lucky to have two daughters who are both happy and healthy. However, as a family we are aware that this isn’t the case for every child or indeed family in our community. By raising money for CFM’s Cash For KIds, we’ll be helping them support local children and young people who are suffering from abuse or neglect, who are disabled and have special needs or who simply need extra care or guidance.

59% of Foodbank users still go without food three or more times each week and many of the food parcels go to children.

Therefore, even the smallest donation can really make a difference and help others less fortunate than ourselves to have the one thing many of us take for granted.

Later in the year I will be holding an Afternoon Tea event where people would be asked to bring along food donations in exchange for lovely cakes and tea.

If you would like to make a donation to Melanie’s crowdfunding page,please click here.

pumping and so after a bit of research and much twisting of Christine’s arm (see previous page) I will be taking on Zip World Velocity, which is the longest zip line in Europe and the fastest in the world, at speeds in excess of 100 mph.

If you would like to sponsor Martin please click here.

If you would like to sponsor Karen please click here

Together with Tom, Martin will be walking a section of Hadrian’s wall on 16 September 2017 (circa 25 miles). I wanted to do something a little different and something a bit more adrenalin

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Paramount Legal Costs Ltd | April 2017

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Along with Claire, Julie and Nicola, I will be walking around Talkin Tarn ten times on Tuesday 13 June. This distance will be the equivalent of completing two marathons (half a marathon each). We hope to complete the challenge in around 5 hours.

My charity of choice is Cerebral Palsy Cumbria which is a nonprofit organisation working with people with cerebral palsy in Cumbria to develop and sustain services that promote and help individuals with independence.

My son was diagnosed with a mild form of Left Hemiplegia Cerebral Palsy when he was 18 months old having shown

I am doing a Tandem Skydive in August 2017 to raise funds for Eden Valley Hospice.

Eden Valley Hospice provides a valuable service to families during difficult times that most of us will experience at some point in our lives. The hospice has been of great assistance and comfort to my family and I several years ago when my Grandad suffered from

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signs that his walking was not as it should have been. Our GP recognised this and swiftly referred us to the hospital. We regularly attended Physiotherapy which was aimed at stretching his leg muscles and he had a leg splint specially made to wear at night.

To understand more of this condition I contacted the Cerebral Palsy helpline who were very helpful in explaing all about the condition and provided me with other useful numbers and contacts I may need in the future.

If you would like to sponsor Gina please click here.

terminal Cancer and could no longer be cared for at home.

I am really excited about the skydive, it is going to be totally awesome. (But I am sure I’ll be petrified on the day once I’m sat at the edge of a plane door before freefalling 15,000ft at around 120mph. Feeling a bit nervous already..........)

If you would like to sponsor Amanda please click here.

Paramount Legal Costs Ltd | April 2017

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My charity of choice is the Great North Air Ambulance because of the essential and life saving service that it provides to our area.

that occasion their presence was still appreciated. Following these 2 incidents the Great North Ambulance have become the charity of choice for our family.

Two years ago my uncle fell off a ladder and sustained serious head injuries. Without the Great North Air Ambulance it is very unlikely that he would still be with us today. In addition they were also on stand by when my Dad passed away suddenly at Hexham race course and although they were unable to help on

Along with Gina, Julie and Claire, I will be walking around Talkin Tarn ten times on Tuesday 13 June. This distance will be the equivalent of completing two marathons (half a marathon each). We hope to complete the challenge in around 5 hours.

My charity of choice is the Juvenile Diabetes Research Fund (JDRF UK). JDRF is the type 1 diabetes charity. They fund research to prevent and cure type 1 diabetes and its complications. They also provide information for children, adults and parents living with the condition.

me what my sister had been dealing with as a teenager and continues to deal with today.

Type 1 diabetes has been in my family’s life for as long as I can remember, with my younger sister Lynsey dealing with the condition for over 20 years (having been diagnosed as a teenager). There were also other extended family members who were dealing with the condition.

Diabetes then became even more central in my life when, two and a half years ago, I was diagnosed with type 1 diabetes (late onset) and since that time I have been dealing with the difficulties of this condition on a day to day basis. This really showed www.paramountlegalcosts.co.uk

If you would like to sponsor Nicola please click here.

Diabetes had further plans for my family when, a little over a year ago, my nephew Ben was diagnosed with type 1, just before he started secondary school. JDRF provided invaluable support to him at this difficult time including providing information and leaflets that he and his friends could understand and a backpack including a teddy bear which showed injection sites, when first diagnosed.

Along with Gina, Julie and Nicola, I will be walking around Talkin Tarn ten times on Tuesday 13 June. This distance will be the equivalent of completing two marathons (half a marathon each). We hope to complete the challenge in around 5 hours.

If you would like to sponsor Claire please click here Paramount Legal Costs Ltd | April 2017

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On Friday 30th June at Eccleston Park Golf Club, I will be attempting to play 4 rounds of golf in one day. That’s 72 holes!

As I can barely manage 18 holes on a Sunday, this will be the biggest challenge I have ever set myself, but it is absolutely nothing compared with what the great Steve Prescott managed over the years. He was and is an inspiration to all, but perhaps especially so to those of us from St Helens.

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If you would like to sponsor Lee please click here.

Paramount Legal Costs Ltd | April 2017

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PRIVATE CLIENT UPDATES Remuneration of Solicitors appointed as Deputy for Property & Affairs Annual management fees, payable on the anniversary of the court order

Increases to Fixed costs in the Court of Protection from 1 April 2017 Practice Direction B which supplements Part 19 of the Court of Protection Rules 2007 has recently set out the increased fixed costs that may be claimed by Solicitors & Public Authorities acting in COP proceedings and the fixed amounts of remuneration that may be claimed by Solicitors & Public Authorities appointed as Deputy.

The main changes are shown below but please click on the link for the further details.

Payments on account These have increased from 20% of the estimated annual management charges for the 1st three quarters of the management year to 25% of the estimated annual charges i.e. up to 75% for the whole year.

Solicitors’ costs in court proceedings Deputyship application costs up to the date that the court makes an order appointing a Deputy for Property & Affairs are up from £850 plus VAT to £950 plus VAT.

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1. For the 1st anniversary an amount not exceeding £1670 plus VAT (up from £1500 plus VAT).

2. For the 2nd & subsequent years an amount not exceeding £1320 plus VAT (up from £1185 plus VAT).

3. Where the net assets of the P are below £16,000, the Professional Deputy for Property/Affairs may take an annual management fee not exceeding 4.5% of the P’s net assets on the anniversary of the court order (no change).

Preparation of a report or account for the OPG An amount not exceeding £265 plus VAT (up from £235 plus VAT) Preparation of tax returns Preparing a basic HMRC tax return on behalf of the P an amount not exceeding £250 plus VAT (up from £235 plus VAT) Preparing a complex HMRC tax return on behalf of the P an amount not exceeding £600 plus VAT (multiple investment portfolios, one or more rental properties etc). This a new allowance.

Detailed Assessment In cases where fixed costs are not appropriate, professionals may, if preferred, apply to the SCCO for a detailed assessment.

These increases will apply to all Management Fees for anniversaries falling on or after 1 January 2017 and reports/accounts/tax returns made on or after 1 April 2017 If you have any questions about this article please call the Private Client team on 01228 815391

Paramount Legal Costs Ltd | April 2017

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PROPORTIONALITY

BY LEE WHITEHEAD

Proportionality remains an extremely important topic in the world of costs, and barely a week seems goes by without new case law coming to our attention on the subject.

Since the “new” proportionality test came into play in April 2013, costs have been subject to two proportionality tests, with the costs incurred before that time being subjected to the test laid out in Home Office –v- Lownds [2002] EWCA Civ 365, and the subsequent costs incurred after April 2013 being governed by the amendments to CPR 44.3. This was a fundamental and hugely significant change. Where the “Lownds test” put the emphasis on the necessity of the work before considering whether it was proportionate, the new rule removes the question of necessity and focuses solely on whether the costs incurred are proportionate, which as CPR 44.3(2) (a) puts it “only allow costs which are proportionate to the matters in issue.

Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred.”

This has led to a number of cases, some of which have been dealt with in previous Paramount newsletters, where costs have been severely reduced by the Court at the conclusion of assessment hearings, after the reasonable costs have been assessed in the traditional manor, solely on the grounds of proportionality. However, as is so often the case in costs, some recent decisions have both clarified and muddied the issue.

In Murrells –v- Cambridge University NHS Foundation Trust [2017] EWHC B2 (Costs), Master Brown assessed a bill of costs that straddled April 2013, with Part 1 subject to the “old” rules and Part 2 the “new”. Master Brown, having applied the “Lowndes test” to Part 1, reduced the costs claimed in Part 1 by half, from around £32,000.00 to around £16,000.00. In Part 2 of the bill, Master Brown reduced

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the costs in the standard way to those reasonably incurred, to the sum of “and then applied the “new” test, which brought the costs down considerably.

In their submissions, the Defendant argued that the Court should take additional liabilities into account when considering proportionality, as Master Gordon-Saker had done in BNM –vMGN Limited [2016] EWHC B13 (Costs), however, Master Brown “respectfully disagreed” with his colleague and specifically excluded both VAT and additional liabilities from his calculations when considering the proportionality of the costs, meaning that only base profit costs and disbursements were relevant.

This is, potentially, a very important ruling and should be used by receiving parties as an important weapon in their defence when paying parties use such faulty reasoning as justification for swingeing reductions.

By way of contrast, in Mather –v- Doncaster & Bassetlaw Hospitals NHS Foundation Trust, Regional Costs Judge Beresford, sitting in Hull County Court, ruled that the “new” proportionality test should be applied to the whole of a bill that straddled both pre and post-April 2013, though he did concur with Master Brown’s opinion that the additional liabilities should be excluded from the calculations.

In doing so, DJ Beresford agreed with Master O’Hare’s ruling in Hobbs v Guy’s And St Thomas’ NHS Foundation Trust [2015] EWHC B20 (Costs), reasoning that “It would be a selective exercise if the court was to ignore what could be a significant pre-April 2013 amount of costs. This is particularly pertinent given that there are likely to be ‘split’ bills going forward for a number of years” “Further support for the proposition of looking at the total costs can be taken from the manner in which the court assesses a proportionate budget. When setting

Lee is a senior Costs Draftsman & Negotiator.

If you have any questions about this article please contact Lee at: Tel: 01228 815393 Email:

lee.whitehead@paramountlegalcosts. co.uk

budgets, the court takes into account costs incurred before the date of the budget.

Incurred costs does not distinguish between pre and post-April 2013 costs…it would in my judgment be inconsistent to have regard to pre-April costs on budgeting, only then to ignore them when considering proportionality on conclusion.”

This raises an important point about the drafting Precedent H costs budgets, which is a subject for another time, but this decision shows just how inconsistent and contradictory the Courts can be on the issue of proportionality, but, there is no escaping the message running through all these cases: proportionality should be at the front and centre of every fee earner’s mind when running a case. Necessity may be the mother of invention, but proportionality is the daddy when it comes to costs.

Paramount Legal Costs Ltd | April 2017

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GOVERNMENT REFORMS TO MAKE TAX DIGITAL - The Need For Management Information In Law Firms

BY CRAIG FOXCROFT

In the March 2015 budget, the Government announced a plan to transform the tax system and shake up tax returns as they currently exist. I now look at the links between appropriate management information and the tax digital reforms that are on their way.

This is likely to have major impacts on the finance functions of law firms the length of the country during the next few years.

Her Majesty’s Revenue & Customs (HMRC) has been in consultation over ‘Making Tax Digital’ – a move it sees as simplifying the tax system. This consultation does not apply to companies, but, by 2020, the plan is that HMRC will have moved businesses run as partnerships or individuals to a digitised system. The new system will update tax affairs in close to real time. It will also remove the need to tell HMRC information which it already holds and, as information is automatically uploaded, bring an end to the single annual tax return.

HMRC currently receives information on a number of separate standalone systems. Starting from next year, HMRC is therefore in the process of joining up its systems – that will mean that a taxpayer completing his or her own return online will see that any employment income will already be pre-populated on the return.

HMRC also believes that it should be able to directly collect information on behalf of the taxpayer to ease the reporting burden – for example from banks and building societies. Each taxpayer will have his or

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her own online account where they will be able to check that the information held about their own affairs is correct.

Those who are self employed currently settle their annual tax on 31 January following the 5 April 5 tax year-end, as well as also making payments on account towards the next tax year on that date and on the following 31 July. Many businesses will not know how much tax they are due to pay until after their end of year accounts have been prepared. HMRC plans to collect accounting information closer to real time, on a quarterly basis, to reduce the differences between amounts paid and those that are actually due, which would then result in amounts to be repaid or additional tax due on the following 31 January.

Although the criteria to determine sizes have not yet been announced, large businesses will be included in the new system from April 2018 and their first quarterly returns will be due in July 2018; medium sized businesses will be given an extra year and join in 2019.

Small businesses and landlords with turnover less than £10k per annum will be exempt from reporting. This turnover limit is very low and there is speculation that it may be increased following the consultation period.

Ninety-nine per cent of VAT registered business already complete VAT returns online and generally have to prepare that information quarterly. HMRC’s view is that providing additional information at the time of submission of the VAT return will have minimal impact, although that remains to be seen and this is likely to be a major shake up for law firms.

Craig Foxcroft is a Legal Sector Manager at Armstrong Watson LLP, specialising exclusively in advising law firms. The legal sector team advises law firms throughout the UK on strategic, structural and other business improvement issues as well as providing efficient accounting, tax and SRA accounts rules services.

Further information can be found here If you have any questions about this article contact Craig at: Tel: 01228 690200 Email: craig.foxcroft@armstrongwatson.co.uk Visit the website

Paramount Legal Costs Ltd | April 2017

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GOVERNMENT REFORMS TO MAKE TAX DIGITAL - continued The idea is that businesses will use software to electronically transmit data to HMRC, be it via a computer or smartphone.

HMRC argues that by using software that automatically collects the data as part of normal day to day activities, there is less chance for basic errors in the data. HMRC statistics state that £6.5bn is lost a year through error, and it believes that automation is less burdensome than the current system of completing annual returns.

The consultation is also looking at when payments of tax will become due, with an aim to bring payments closer to when profits arise. Instead of annual large payments, businesses may well start to make regular smaller payments of tax to HMRC. There are a number of positives to be taken from this move.

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Paying regular amounts of tax to HMRC, rather than singular large payments, will allow businesses to budget more effectively and with greater certainty over cash flow.

Having to provide the required information with HMRC will allow businesses to also review their own performance more regularly. Many business owners are happy plodding along through the year happy that they have available funds at the bank and once a year pass the information to their accountant at the year-end and cross their fingers.

Negatives, may include that tax is paid earlier.

The introduction of quarterly returns, together with the likelihood of quarterly payments for all, further into the future, mean the accuracy and completeness of management information will need to be considered. Often the biggest impact on the profits of a law firm is the recognition of work in progress, which for some is something of a head scratching exercise untaken once a year. Now could be the time to review your finance function which in turn will allow for better planning and regular meaningful conversations both internally and with your business advisers. Rather than a meeting your advisers once a year to discuss historical information that could be no longer relevant to the businesses current position, meetings should be held more regularly to discuss real time performance.

This article is a general guide to the issues that we see in practice.

It is not a substitute for professional advice which takes account of your personal circumstances. No responsibility can be accepted for any loss occasioned by any person acting or refraining from action on the basis of this article.

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Most accounting software now has the facility to be shared online with your accountants, so you can instantly look at the same information without the need to be sat in front of the same computer or send copies of the data on an easily lost and unsecure memory stick. HMRC also allows taxpayers to share their online account with their accountants for the same reasons.

Having all your information in real time allows for greater collaboration to make proactive and informed decisions with greater certainty.

Undoubtedly making tax digital will mean additional work making sure that outputs from financial systems are producing information in a format that can talk to HMRC systems. It is also clear that action is needed sooner rather than later as the implementation dates are not far away.

Firms may well be pushed down the above route for compliance purposes, but they should take positives from this and ensure that the additional need for financial management information is used to their advantage, and that it is aligned with strategy.

Given the need to reviewing your management information as well as preparing for the digital era, is now the ideal time to step back and consider your key performance indicators?

People don’t generally spend years at law school to then waste time having to looking at pages of figures analysing their performance whilst practising. We would encourage all to take this opportunity to keep management information focused and don’t overwhelm people with detail.

The market is changing and you have to move forward just to stand still.

The Law Society has exclusively endorsed Armstrong Watson for the provision of accountancy services to law firms throughout the whole of the North of England.

Paramount Legal Costs Ltd | April 2017

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CASE LAW SUMMARY

BY JULIE FITZPATRICK

Re CA (Natural Delivery or Caesarean Section) [2016] EWCOP 51 (08 December 2016) This was a Court of Protection decision concerning a 24-year old pregnant woman (CA) with a diagnosis of autism and learning disability, and the question of how she should deliver her child.

The NHS Trust sought a declaration and order that it was lawful and in CA’s best interests that she should undergo a Caesarean section, if necessary using force in a way that deprived CA of her liberty. CA was refusing any interventionist health care in respect of her pregnancy and objected to a Caesarean section, stating that she wanted to give birth at home.

Mr Justice Baker was highly critical of the NHS Trust for the late timing of the application (less than a fortnight before CA was due to give birth).

Background CA was born in Nigeria and travelled to the UK in 2007. It was claimed that CA had been diagnosed as being on the autistic spectrum, although no medical records confirming such a diagnosis were produced.

It was known that, during her childhood, CA had experienced one, or possibly two, episodes of cutting. The first episode involved cuts to her abdomen from which she still had superficial scarring. It was thought that CA would have been conscious and restrained when these cuts were made. CA’s mother also reported that CA had undergone genital cutting. This could not be confirmed as CA refused a vaginal examination but it was thought that she had experienced Type 1 Female Genital Mutilation.

In 2014, CA moved into a supported living placement, where she was known to social services and received 20 hours of support each week from Autism Care. At the beginning of July 2016, she visited her parents who suspected she was pregnant and the GP confirmed that this was indeed the case.

CA was referred to the local hospital and assigned to the care of a consultant obstetrician and midwife. The midwife established a relationship with CA, but CA remained largely uncooperative with medical examinations, and refused to provide blood samples or undergo gynaecological examinations.

CA demonstrated very little, if any, understanding of what labour and childbirth would involve. She was adamant that she wanted to deliver the baby at home and did not expect the process to involve pain or bleeding.

At the beginning of November 2016, CA became more unsettled.

Medical staff became concerned about her condition and wanted to admit her to hospital, but she declined. It was only at this point that the NHS Trust made their application to the court.

Outcome The late stage application meant that evidence relating to CA’s capacity was limited. Her medical records were not available and she was only examined by a consultant psychiatrist on the day before the final hearing.

The consultant psychiatrist, who had considerable experience of autism and a special interest in autism in women, concluded that CA was autistic and had a learning disability. The Official Solicitor was not persuaded about the diagnosis of autism but accepted that there was sufficient evidence to support the diagnosis of a learning disability and that this was sufficient to meet the diagnostic test.

Mr Justice Baker found that the evidence of the consultant psychiatrist was persuasive. He found that CA lacked the capacity to understand, retain, weigh and use information so as to conduct proceedings, and also so as to make decisions as to medical treatment, in particular as to the delivery of her baby.

In determining what course of action was in CA’s best interests, Mr Justice Baker took account of the past trauma CA had suffered as a result of the cutting episodes. Whatever course of action was chosen, a shared concern of professionals was limiting the immediate and longer-term psychological impact of that action on CA. Mr Justice Baker determined that it was “manifestly clear that the balance comes down decisively in favour of a planned Caesarean section”. He concluded that the Caesarean section should take place under general anaesthetic and approved the Trust’s plan for the use of procedures for controlling and restraining CA as necessary during the delivery, along with an assessment prior to the use of restraint.

An order was made incorporating 1. A declaration that CA lacked the capacity to conduct the proceedings and make decisions about medical treatment; 2. A declaration that it was lawful and in her best interest to undergo a Caesarean section at the Trust’s hospital on or around 17 November 2016; 3. A declaration that it was lawful and in her best interests that restraint as set out in the Trust’s control and restraint plan be used as necessary to enable the treatment to be carried out; 4. A declaration that arrangements for her care and treatment were lawful and proportionate notwithstanding that they entail the deprivation of her liberty, and 5. An order that at all times before, during and after the birth, the Trust should take all and every reasonable step to minimise distress to CA and to preserve her dignity.

The full judgment can be read here.

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Paramount Legal Costs Ltd | April 2017

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CASE LAW SUMMARY

BY NICOLA ROBERTS

E (A Child) Re 2017 EWHC B11 (Fam) (23 February 2017) This case related to Public Law Proceedings commenced by the Local Authority in the High Court in relation to the child E, who was 11 years old and living in foster care under a Care Order made in June 2016. The care plan for E was for his placement with his Maternal Aunt, who had applied for a Special Guardianship Order but as she lived in the Republic of Ireland, the Local Authority issued an application for permission to place him outside the jurisdiction of England and Wales. This application was made pursuant to Section 124 of the Social Services and Well-Being (Wales) Act 2014.

E’s Mother had died when he was 9 and his Father, who was serving a prison sentence, had remarried and had another 2 children, who had been subject to the Care Proceedings along with the Step-Mother’s eldest child. The Step-Mother’s 3 children were rehabilitated to her care under a Care Order. However, it was decided that she could not care for E and she did not oppose this decision.

E wished to try a placement with his Aunt, in preference to remaining in foster care, but he did not wish to make a final commitment just yet. The Aunt therefore decided not to pursue her application for a Special Guardianship Order and wished for the placement to proceed by way of an Order under Section 214 of the Social Services and Well-Being (Wales) Act 2014, which would provide the legal framework for a possible return. This position was supported by the Children’s Guardian and the Local Authority but not by the Father.

The Father, who was a litigant in person, wished for E to be placed in the care of the Step-Mother and had attempted to influence E in relation to this. During the course of the proceedings, his position seemed to shift with his acceptance that E’s placement with the Maternal Aunt was the preferred option over remaining in foster

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care. However, he then sought an adjournment to allow himself to seek legal representation and to allow the Step-Mother to become involved in the proceedings. This application was refused on the basis that they had had ample opportunity during the course of the proceedings to respectively seek legal representation and involvement. There was also concern that the Father may use any period of adjournment to manipulate the proceedings by exerting pressure on E, undermining/frustrating the Maternal Aunt’s application and unintentionally harming E in the process.

E’s placement with the Maternal Aunt under Section 124(1) of the Social Services and Well-Being (Wales) Act 2014 required Court approval to enable him to live outside of the jurisdiction of England and Wales. However, under Section 124(3) of that Act it was stated that such approval must not be given unless the Court was satisfied that: (a) It was in the child’s best interests; (b) Suitable arrangements had been made for the child; (c) The child consented; (d) Every person who had parental responsibility for the child had consented.

In this instance (a), (b) and (c) were satisfied but as the Father did not consent (d) was not. However, Section 124(5) of the Social Services and Well-Being (Wales) Act 2014 stated that the Court may dispense with that person’s consent if it was satisfied that the well-being of the child required it to be so which in this case it did.

The Father’s consent was therefore dispensed with and pursuant to Section 124 of the Social Services and Well-Being (Wales) Act 2014, E’s placement with his Maternal Aunt in the Republic of Ireland was approved.

The full judgment can be read here

Paramount Legal Costs Ltd | April 2017

IS S U E N IN E

CASE LAW SUMMARY

BY MELANIE PEARSON

Merrix v Heart Of England NHS Foundation Trust (2017) EWHC 346 (QB) Well this recent judgement has certainly had everyone talking!

Mrs Justice Carr had allowed an appeal concerning the significance of costs budgeting and the final costs assessment by ruling that “the answer to the preliminary issue is as follows: where a costs management order has been made, when assessing costs on the standard basis, the costs judge will not depart from the receiving party’s last approved or agreed budget unless satisfied that there is good reason to do so. This applies as much where the receiving party claims a sum equal to or less than the sums budgeted as where the receiving party seeks to recover more than the sums budgeted”.

This was an appeal dealing with the importance of a costs budget when the costs finally fall to be assessed. The district judge had held that the figures in the costs budget were not a definitive guide and could ultimately be challenged by the paying party on an assessment of those costs. The Claimant in this case appealed with the ultimate decision being that the agreed budget will be binding upon the parties at a standard basis Detailed Assessment regardless of whether the costs are for less, equal to or more than the sums approved by that budget, unless there is good reason to do otherwise. The Claimant submitted that if costs are claimed at or less than the budget

then they should be assessed as claimed unless the Defendant was able to show that there was good reason to depart from the budgeted figures. The Defendant’s position was that the budget was only one factor to be considered in determining reasonable and proportionate costs on assessment, and was not, therefore, binding. Whilst accepting it was right to say that costs budgeting did not “replace” detailed assessment, it was concluded that where the costs management order had been made when assessing the costs on the standard basis the costs judge should not depart from the receiving party’s last approved or agreed budget unless satisfied that there is good reason to do so. This appeal was allowed.

It is clear from this decision then that the current intention and effect of cost budgeting is to result in a budget that the court should not depart from at any detailed assessment on a standard basis, unless there is good reason to do so.

Since writing, we now know there won’t be a further appeal.

You can read the full judgement here

CASE LAW SUMMARY

BY ALAN PICKARD

W-v-P [2017] EWHC 386 (ch) (27 February 2017) On 22 July 2010 the testator passed away having suffered terminal rectal cancer diagnosed in July 2009.

On 28 May 2010 the testator gave instructions for a will to a firm of solicitors and on 4 June 2010 he executed the will.

The Claimant was the testator’s widow and they had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contended that when the testator gave instructions/signed the will he lacked testamentary capacity with the result that the will was invalid and as there was no prior will, his estate therefore should be distributed in accordance with the rules relating to intestacy.

The Defendant, one of the testator’s daughters from his earlier marriage and executrix of the purported will denied that he lacked capacity. The will directed that the home the testator had shared with the Claimant and which was mortgage free should not be sold during the Claimant’s lifetime without her consent or unless she cohabited with another person. She should be entitled to live there rent free on the basis that she paid the other

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outgoings on the property, kept it insured and in good repair.

The matrimonial home had been purchased by the testator and the Claimant as joint tenants. The Solicitor arranged for the testator to sign a notice of severance of the joint tenancy at her meeting with him on 28 May 2010 in order to make sure that the terms of the will were not frustrated by the automatic right of survivorship regarding property held as joint tenants.

The will also directed that on the ultimate sale of the matrimonial home, once the Claimant’s right to reside there had been extinguished, either voluntarily or by cohabitation or her death, the net proceeds of sale should be paid to the defendant and it also bequeathed to her the residuary estate. Specific bequests were made of the testator’s interest in some wall plaques and specific pieces of identified pottery. The recipients of those items were expressed to be the Defendant and her sister.

Following a full review of the evidence, HHJ S found in favour of the will.

The full judgment can be read here.

Paramount Legal Costs Ltd | April 2017

IS S U E N IN E

CASE LAW SUMMARY

BY CLAIRE ROBSON

C v D [2017] EWHC 807 (Fam) (08 March 2017) This Judgment was given by Mr Justice Francis on 8th March 2017, at the final hearing of the mother’s Application for an Order for the summary return of two children to Canada, pursuant to the 1980 Hague Convention and/or the Court’s inherent jurisdiction. The proceedings concerned two children who the mother asserted had been wrongly removed from Alberta, Canada in May 2015 by the Respondent father. The father asserted that he was allowed to remove the children from Canada, pursuant to an Order made by the Court on 16th September 2014.

The background to the proceedings was that the parents and the children had been born in the United Kingdom. The family had moved to Canada in 2006, a few months after the parents had married. After the parents’ relationship had broken down, there had been a number of Applications and Orders made in the Canadian Court, with an Order initially granting ‘primary care’ of the children to the mother and ‘supervised visitation’ to the father. In April 2013 there was a change in the primary care of the children to the father, in proceedings which the father had made allegations that the mother was involved in the sex trade and used Class A drugs, although no substantial evidence was produced to support these claims. In August 2014 the father issued an Application for primary care of the children and supervised visitation for the mother. He also requested full custody and decision making for the children. At the hearing on 16th September 2014, the Court granted the father’s Application to include applying for passports for the children and being able to travel internationally with the children without the mother’s consent.

The mother did not attend this hearing and there was a dispute between the parties in relation to whether the mother had knowledge of this hearing and had been served with the Court papers.

The father had subsequently removed the children from Canada to the United Kingdom, with the mother not having seen the children face to face since January 2014. Care proceedings were subsequently issued in respect of the children due to concerns of ill treatment by the father. Within these proceedings authority was granted to instruct an expert on Canadian law. The report from the expert was received which stated that the father was not entitled under the relevant law of Alberta, to remove the children permanently from Canada, as this would have been explicitly stated in the Order made. International travel only was permissible and that there was relevant Case Law in Alberta and Canada to support this. Detailed questions were put to the expert in relation to the father’s rights to determine his children’s place of residence; however the expert’s conclusion remained.

In his Judgment Mr Justice Francis stated that he had considered relevant Case Law including Re D (Child Abduction: Settlement) [2006] and whether the children could be considered as settled in the United Kingdom. Given that Care proceedings were ongoing and that the children were now living with the maternal grandmother, Mr Justice Francis could not consider that the children were settled in the United Kingdom. Consideration was also given to whether the mother had given permission for the children to be removed from the United Kingdom, which the father could not prove, and also consideration given to the children’s wishes that they no longer wanted to see their father. Mr Justice Francis therefore concluded that the father wrongfully removed the children from Canada in breach of the mother’s rights of custody therefore the Application for the return of the children to Canada was granted.

The full judgment can be read here.

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Paramount Legal Costs Ltd | April 2017

IS S U E N IN E

CASE LAW SUMMARY

BY AMANDA DINNIN

MH (A CHILD), Re [2017] EWHC 691 (FAM) (13 March 2017) The case concerned an application by a mother for permission to appeal an order made by HHJ Hughes QC in Children Act proceedings concerning the parties’ daughter, M (DOB 04 February 2015).

The parties had separated before the child was born. Initially there were proceedings as the father had concerns about the mother abducting the child to her home country, Poland.

Children Act proceedings then took place in respect of child arrangements. The parties had both been represented by Counsel during the initial contested hearing in August 2016, and a preliminary ruling was given on 27 October 2016 following written submissions. Both Counsel then withdrew and the parties acted in person at the final hearing on 22 November 2016 arguing over the finer details of the arrangements. The final order provided for the child to live with the father on alternate weekends and one other twenty-four-hour period every week, which was to be Tuesday, but there was to be flexibility for timings to change as the mother was a student.

The mother wished to appeal the inclusion in the recitals of the final order that the parties had agreed that “the child would live with the mother and father”. She stated this was not agreed and that she would rather the order said that the child lives with her and spends time with the father. This was due to the father being controlling and aggressive and concerns that the child could suffer emotional harm if she did not have a secure base with one parent. Furthermore, the CAFCASS officer had not recommended the order made.

Mr Justice Baker was not persuaded that the Judge was wrong to make the order that she did and commented that, where a child is to spend substantial amounts of time with both parents, then it did not really matter what terms were used, and the phrase “live with” was frequently used and encouraged in those circumstances, to be non-discriminating between the parents and to give a message to

the child that both parents were committed to her.

Mr Justice Baker did however state that the Judge was wrong to record the mother as agreeing to it.

The order had also included detailed and complex provisions regarding holiday contact, including travelling abroad, and the mother, in her appeal, raised three issues in respect of those.

The first issue was whether the language of the order allowed the mother to take long enough trips to Poland with the child in view of the father’s mid-week contact. The second issue was that order was requiring the mother to fix holiday dates too far in advance and she needed more flexibility. The third issue was that the summer holiday contact ordered was not what was agreed and the mother stated that the period (14 days) was too long for the child to be away from her at this stage and that the father himself only had limited holiday time and so the child would have to be placed in alternative care whilst the father was at work.

Mr Justice Baker was not persuaded that the Judge was wrong on any of the issues and commented in respect of the first issue that the Judge had intended that if the father was compensated with contact at other times then the mother would be allowed to take the child to Poland for longer periods.

In conclusion, Mr Justice Baker refused permission to appeal, save on the point that the mother did not consent to the order for the child to live with the father. Appeal on that one point was subsequently allowed and the recital of the order was to be amended to show that the parties were agreed that the child shall spend time with both parents but they were not agreed as to whether the order should express in the terms that the child “will live with her mother and with her father”.

The full Judgment can be read here.

DISCLAIMER The information provided in all our case law summaries above, is our interpretation of the judgments and does not constitute professional or legal advice and is not intended to be comprehensive. Paramount Legal Costs Ltd does not accept any liability for any loss caused by relying on this information.

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Paramount Legal Costs Ltd | April 2017