Chambers Blog

Chambers is pleased to announce that Andrew Willetts has successfully completed his postgraduate LLM degree in Medical Law with commendation, and will be awarded a Master of Laws degree this December by Northumbria University.

Andrew chose for the subject of his dissertation the implications of the House of Lords decision in Chester v Afshar [2004] 4 All ER 587 in the field of clinical negligence. This case concerned the failure of a surgeon to give a proper warning to his patient prior to surgery of the inherent risks involved, which later materialised. The surgery itself was not negligent, but by a majority the House of Lords held that it was the patient's ‘right' to be told of all serious risks involved in surgery and that a surgeon has a positive ‘duty to warn' of such risks. The significance of Chester lay in the fact that if a surgeon was found to be in breach of that duty to warn he would be liable in damages even though the failure to warn did not cause (in the old ‘but for' sense) the injury (from the inherent risk) that followed. In this respect Chester modified the normal test in causation to achieve an equitable outcome for the patient. This is a clear departure from the ‘medical paternalism' espoused in Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 and has moved the UK a step closer to adopting the American style ‘doctrine of informed consent'.

The award the Masters of Law degree will compliment Andrew's extensive knowledge in personal injury and help broaden his practice into clinical negligence.

The House of Lords has handed down an important judgment, Re B, in relation to the burden of proof in family cases, and care proceedings in particular. Findings on issues of fact connected to a particular family are very important to the final outcome of care proceedings. In civil proceedings any fact will be tried according to the "balance of probabilities" - this can be contrasted with the standard of proof in criminal proceedings: "beyond reasonable doubt."

Care cases are civil, so the balance of probabilities applies. Such is the seriousness of some allegations however, for example sexual abuse of children, that following the case of Re H some had thought that discharge of the burden of proof required more "cogent" evidence than usual before a finding would be made. The House of Lords has stated that this rule is untrue - the usual standard of proof applies.

This means that where there is insufficient evidence of past harm for the court to find that the child concerned is suffering, or is likely to suffer, significant harm, then the allegations remain unproven, and the court cannot proceed to make any orders.

This point emphasised that where facts were in issue, the court must reach a conclusion. As Lord Hoffman stated:

"The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

New Walk Chambers has a number of senior family practitioners who appear in care cases across the Midlands, including Leicester, Birmingham, Nottingham, Northampton, Coventry, and the smaller county courts.

Written by Joseph Neville, Barrister at New Walk Chambers, specialising in Family Law.

The House of Lords has overturned Re'H on the standard of proof in sexual abuse allegations. The simple balance of probabilities applies and neither the seriousness of the allegation nor the seriousness of the consequences make any difference to the standard of proof; there is no logical or necessary connection between seriousness and probability.

Written by Rebecca Fitton-Brown, Barrister at New Walk Chambers, specialising in Family Law.

It seems that fundamental changes in the employment law are on the way (albeit some may say long overdue). The Employment Law Bill 2007, which is currently being debated in the House of Lords is set to repeal the Employment Act 2002 (Dispute Resolution) Regulations 2004.

 The 2004 Regulations introduced the statutory disciplinary and grievance procedures in an attempt to reduce the employment litigation. For those practising law in this area it is abundantly clear that this has not been the case. Instead research conducted by the Department for Trade and Industry shows that under the Regulations disputes have become more formalised with the involvement of solicitors and barristers at earlier stages.

The Bill proposes a new non-regulatory system of employment procedures to encourage the informal resolution of disputes and an increased involvement by ACAS. In addition, increased powers will be given to tribunals' to reach a determination without a hearing.

 Other changes proposed within the Bill include:

• Changes to the enforcement of the national minimum wage, for example by making offences under the National Minimum Wage Act 1998 triable either in the Crown Court or Magistrates' court;
• Changes to ensure compliance with the European Court of Human Rights judgement in Aslef v UK. Clearer rights for trade unions could not lawfully expel British National Party activists;
• A new fast track procedure for dealing with certain monetary disputes.

The Bill is due to receive Royal Assent this summer and is currently scheduled to come into force in stages from October 2008.

Written by K Richards

  Geraint Jones Q.C. has recently been involved in the first case to test whether the House of Lords decision in Arthur J S Hall & Co  v  Simons (2002) 1 AC 615 had/has retrospective effect. In Awoyomi v Radford & Postill  Mr. Justice Lloyd-Jones decided, contrary to the common position taken by Leading Counsel on each side, that despite their agreement that the House of Lords decision had only prospective effect, it did in fact have retrospective effect. That is, it was declaratory of what the law has always been, as opposed to being a change in the law with the House of Lords acting in a quasi-legislative way. The case has now been referred to the European Court of  Human Rights on the basis that the High Court decision totally denies the Claimant in that case from access to the Courts. The Court of Appeal,  Lord Justice Lawrence Collins, refused leave to appeal. In his order dated 30^th August 2007 he made no mention of the applicant's submissions regarding Convention rights. In the absence of a prospective reading of the rule in Hall v. Simons, no other domestic remedy was available to the applicant. Accordingly, the applicant has not been provided with an effective remedy and that is the issue to be argued before the ECHR.

Written by Geraint Jones, Barrister at New Walk Chambers, Specialising in Arbitration, Environmental Law, European Union Law, Public Law, Professional Negligence and Sports Law.