Linked High Court libel case and gross negligence case (Birkenhead County Court) against Wirral Council holds further hearing before DJ Hennessy in Birkenhead on capacity and limitation
By John Brace – Local Government Editor
Leonora Brace – Justice Correspondent
The following is a report on the hearing held on the afternoon of the 5th February 2020 in Judges’ Chambers on the 4th floor at Birkenhead County Court. Chalmers v Wirral Metropolitan Borough Council is two linked cases (E14YJ013 and E24YJ652). One case involves allegations of libel, the other case allegations of negligence. Both linked cases were heard in front of District Judge Hennessy. Mr Ali Bayatti (an in-house solicitor) was representing Wirral Metropolitan Borough Council, Ms Chalmers was present and was assisted by a McKenzie Friend.
Comments are turned off due to the ongoing nature of the case.
Four previous reports on this blog on the same case can be read at the following links:-
Hearing in Chalmers vs Wirral Borough Council (E14YJ013) is adjourned (5th October 2018)
DJ Hennessy refers to “traffic chaos” and criticises Wirral Council for not complying with a court order (30th October 2018)
After Wirral Council ask for libel case to be immediately struck out, DJ Hennessy gives Claimant 3 weeks and chance to amend her Particulars of Claim first (31st October 2018)
Directions issued by DJ Hennessy at hearing in libel and negligence cases brought against Wirral Council (21st May 2019)
The hearing started and DJ Hennessy said that she would start with the libel case. She referred to a letter dated 27th December from a doctor at the Cavendish Medical Centre which had been brought to the court in early January. She had a copy of the letter for Wirral Council to take away and a copy for Ms Chalmers.
The key issue was whether Ms Chalmers had the capacity to conduct litigation, the outcome of this capacity decision would therefore impact on whether (or not) a limitation period had expired.
She asked Wirral Council, after having read the letter, what they had to say in response to the argument that the limitation period had not expired, so it was not statute barred, therefore the only way to resolve it was to have a hearing on that preliminary issue rather than a full substantive hearing as it was rather fundamental?
As the issue of the limitation period could dispose of the matter, it would have to be decided by a High Court Judge or a section 9 [of the Senior Courts Act 1981] Judge. Whether the limitation period was a preliminary matter or whether they were dealt with together, would probably be made by the person making the decision, not a District Judge in the District Registry, but a section 9 or High Court Judge. That was where she saw the issue, but just because she had said that didn’t mean she wasn’t going to listen to Wirral Council and Ms Chalmers.
DJ Hennessy realised Wirral Council had just read it and Wirral Council was not under pressure to answer immediately, she wanted time for Wirral Council to read it and she didn’t mind taking a moment to adjourn for a minute but she needed to hear the views of Wirral Council on it.
Mr Bayatti asked if the letter was from Ms Chalmer’s GP [General Practitioner] to which Ms Chalmers answers in the affirmative.
Mr Bayatti said that the doctor was raising the possibility of lack of capacity at the time in question, clearly he felt the court was in difficulty to make a substantive determination one way or the other and he recognised that.
DJ Hennessy replied briefly that he may be right.
Mr Bayatti continued that on receipt of the letter that the only thing he would say that any resolution to the capacity question would need to be resolved by means of a report by a suitably qualified psychiatrist to determine whether there was (or wasn’t) capacity.
DJ Hennessy said that the onus regarding evidence so that the capacity issue could be dealt with was on Ms Chalmers, it had been intonated in a previous order that there may well be a further report but she invited submissions on the capacity matter.
Mr Bayatti said he was going to take a step back and refer to the Mental Capacity Act , specifically section 1 which indicates that a court must consider that a person has capacity unless it is shown that that wasn’t the case.
DJ Hennessy interrupted and said he was right, but referred to section 2 and 3 as to whether the impairment was temporary or permanent. She then went into further detail on the capacity and limitation issues. However she asked for a response on the forum argument and the provisional view that it was a High Court matter as matters involving final disposal were the remit of a High Court Judge, Circuit Judge, section 9 or Deputy High Court Judge as there was the possibility it would bring it to an end it had to be dealt with by the appropriate person at the relevant level such as a High Court Judge or a Deputy High Court Judge.
Mr Bayatti agreed with this proposed approach.
DJ Hennessy now moved on to now that it had been agreed with her analysis that the procedure be transferred to the appropriate level of judiciary, that she invited submissions as to whether she should issue directions now or simply transfer it so it was before an appropriate level of judge? The receiving Judge in Liverpool could put in place directions. That was how she saw it pan out as there was no disagreement on the substantive issue of procedure. She asked for submissions from parties on this.
Mr Bayatti said it was up to the Court to make an assessment to answer it and considered it best done by a High Court Judge as that was fine and was the procedure, he felt it better to just transfer to the High Court then let the High Court Judge decide on directions.
DJ Hennessy made another point to which Mr Bayatti replied that having a High Court Judge decide as a preliminary way of dealing with it made sense.
DJ Hennessy asked if there was anything else?
Mr Bayatti made the point that the stakes were higher as a result [of the transfer of the libel case to the High Court] and that would mean more time and expense attributed to it. He would not be likely to be able to continue and would have to be passing it on to someone who had knowledge and experience but that was just a risk of litigation.
DJ Hennessy said that the libel case would transfer to the to the High Court Judge and the transfer order meant that would go off to Liverpool. The gross negligence case would still be with the [Birkenhead] County Court. She wanted to get on and case manage the gross negligence case.
Mr Bayatti said that the facts were the same and he was concerned whether there would be duplication, but that they were issue as separate claims so it was a matter for you [DJ Hennessy]. He had no strong feelings son a particular way but it would remain in the [Birkenhead] County Court.
DJ Hennessy said that whilst some of the evidence was similar that the legal test was different. The disputed issues of fact and factual issues were not the most pressing feature of the legal issues and to whether it was gross negligence.
Mr Bayatti replied that Wirral Council wanted more clarity on the acts or omissions claimed which was a mirror issue in the libel action in relation to the letter received by Ms Chalmers. Why could not support be provided by a third party organisation? The only issue was fine if we [Wirral Council] can proceed but if not the Court as a first step would need to make sure that we [Wirral Council] could understand the acts or ommissions that the complaints were about?
DJ Hennessy then said she would like to visit for a moment [Wirral Council’s] substantive defence? Mr Bayatti replied that it was more generalistic. DJ Hennessy said she had an awful lot to translate.
Now talking to Ms Chalmers she said could she start with the libel action? The medical report had been sent in, but last time it had been outlined in the order that the burden was on you [Ms Chalmers] to show you lacked capacity at some stages of participation in 2017 and 2018 which was really [Ms Chalmer’s] case.
DJ Hennessy continued explaining to Ms Chalmers and asking her questions.
Unfortunately around this point a page of the notes was erased (accidentally) as to what was said and by whom at this part of the hearing. However from memory, DJ Hennessy continued explaining to Mrs Chalmers in simpler language than that used above, the conversation between herself and Mr Bayatti representing Wirral Council involving the transfer of the libel case, the capacity issue and also what was happening to the negligence case.
DJ Hennessy finished by stating that it would be an end to the libel proceedings if a [High Court] Judge made a decision to end it but that was a matter for the High Court, a matter for a High Court Judge or section 9 Judge. DJ Hennessy’s view, Mr Bayatti had been asked and agreed in the conversation with her analysis. She pointed out that the decision to end or continue the case would be after a hearing had been held.
She asked if that was all clear and that if Ms Chalmers was comfortable with transferring the libel case off to Liverpool?
The McKenzie Friend of Ms Chalmers commented on the year and a half the case had been going on for.
DJ Hennessy explained that what she would also say was that the [High Court] Judge who received it would probably decide what day it was listed on, how long it was listed for, anyone giving evidence and any other steps regarding documents. These would be in an order to make sure these were prepared before the hearing and that the hearing could happen. She thought that made sense unless she should be doing something else?
The McKenzie Friend of Ms Chalmers discussed this with Ms Chalmers who said she would “go for it?”.
DJ Hennessy said alright, she would transfer it. Not as part of the order, but it was to state on the top a summary of where they were and what needed doing so that the [High Court] Judge at the other end would see it and pick it up just as a précis. This didn’t mean the receiving High Court Judge couldn’t do something and also didn’t mean it was binding on the receiving [High Court] Judge but it was helpful. As the libel case was being dealt with in that way they could now move onto the gross negligence case.
Mr Bayatti said that before they did he wanted to interject that one of the grounds specified in the Defence was the lack of the Claimant to specify any special damages, but expressed a view that the High Court Judge may think that was repairable rather than strike it out.
DJ Hennessy said what could be done was that the limitation issue may sensibly be dealt with as a preliminary issue once (as she had said to Mrs Chalmers) the issue about whether she [Mrs Chalmers] lacked capacity or not had been decided. If she didn’t lack capacity then at least on the face of it it was statute barred which would end it all, but there may well be a different view [reached by the High Court Judge]. Although there was nothing wrong with raising the question it was implicit that it wasn’t substantive.
Mr Bayatti replied with his concerns about that whether or not it was dealt with would limit the other limb of their Defence.
DJ Hennessy said that she couldn’t see how it did.
Mr Bayatti said he had just been talking out loud. DJ Hennessy said that the matter for her was that she didn’t have to make any to which Mr Bayatti clarified by referring to observations? DJ Hennessy referred to her notes that she would later type up.
She moved on to the gross negligence case and asked again to start with Mr Bayatti.
Mr Bayatti apologised and said that yet again the one thing he didn’t know about the matter was the outstanding application by Ms Chalmers with would need to be dealt with. It was not listed in the directions that the application needed to be dealt with today [5th February 2020] but it did need to be dealt with. He referred to the N161 form, the transfer to Liverpool and how the appeal had been declined by His Honour Judge Wood QC.
He continued that there had been two applications – one for reinstatement after the disposal and one appeal to the…
DJ Hennessy said she wanted to make sure she had not read incorrectly. She referred to a case listed in Liverpool on the 4th July 2018, a case management conference and her view that she thought they could both be dealt with together. She referred to the application for relief from sanctions in the gross negligence case, a strike out, a failure to file a directions questionnaire and a decision vacated by another Judge.
Liverpool had sent it back here [Birkenhead] which had been listed at the same time as the application for relief from sanctions on the 30th October. DJ Hennessy continued with the somewhat complex chronology regarding reinstating the Defence, permission to set aside and what hadn’t been known at a previous hearing about the application to set aside. Directions were mentioned.
Mr Bayatti asked what date she was referring to?
DJ Hennessy answered the 4th March 2019 and a case management conference on the 26th March (or something like that). The libel and the gross negligence cases were treading water was her reading of the chronology followed by a further point about the prospects of success of Ms Chalmers’ application.
Mr Bayatti agreed with DJ Hennessy, but was not clear on the dates. He referred to His Honour Judge Wood and the application after.
DJ Hennessy said she was not sure. She then referred to a handwritten note.
Mr Bayatti referred to the application as “misconceived”. He explained that Ms Chalmers had already had the opportunity tot argue set aside of the decision at the hearing held on the 30th October – but the application in December was beyond any reasonable time limit.
DJ Hennessy said the only copy she had he could have before he left, but it needs to be dealt with how it is dealt with either today [5th October 2020] or a different day – either was fine was Mr Bayatti content for it to be dealt with?
Mr Bayatti said that yes, it was not a problem.
DJ Hennessy (addressing Ms Chalmers) explaining that the gross negligence case would be dealt with in this court [Birkenhead County Court] but that a very large extent was on hold even knowing that the libel case had been dealt with as just discussed. It left the gross negligence case which needed to be case managed to trial and a decision as to whether Wirral Council had been grossly negligent.
Continuing she said that it needs directions for that to happen, the application for permission to appeal had been declined by His Honour Judge Wood in Liverpool. She then showed an application to Ms Chalmers and asked her if she remember making it?
The McKenzie Friend for Ms Chalmers said that the only problem was that the Judge had not given a reason as to why – the Appeal Judge had put it back – but his argument was that there was no lawful reason to be set aside.
Mrs Chalmers said that the appeal was not lawful.
DJ Hennessy said that she can’t deal with the appeal decision as that was made and dealt with by Liverpool. She asked about the notice of appeal?
The McKenzie Friend for Ms Chalmers said there was no reason why the decision had failed.
Mrs Chalmers said she was not told.
DJ Hennessy said it was clear who it is but was there no reason why the appeal was turned down?
The McKenzie Friend for Ms Chalmers said that was “quite correct”.
DJ Hennessy said she didn’t know as she was not the Appeal Judge in question and that Mrs Chalmers would need to ask him, not herself as she couldn’t possibly answer.
The McKenzie Friend for Ms Chalmers said that they had been ignored totally.
DJ Hennessy said that it would be put to one side as she could not deal with that issue.
The McKenzie Friend for Ms Chalmers referred again to a set aside order made by a named QC at the Liverpool County Court as “illegal” as it had “no justification” to set aside and that (to DJ Hennessy) “you know that”.
DJ Hennessy said (directed to the McKenzie Friend for Ms Chalmers) that he was not here to address her. She then addressed him by name. This sounded phonetically like Mr Tindale (although I am not sure of the spelling). She told him to stop and reminded him that he was a McKenzie Friend.
The McKenzie Friend for Ms Chalmers again referred to the set aside order and his view on its legality.
DJ Hennessy told him to “stop talking”.
The McKenzie Friend for Ms Chalmers said he had made his point but that she was not willing to listen.
DJ Hennessy again spoke.
The McKenzie Friend for Ms Chalmers carried on speaking. Mrs Chalmers apologised. The McKenzie Friend for Ms Chalmers carried on speaking.
DJ Hennessy again spoke.
The McKenzie Friend for Ms Chalmers carried on saying that time and time in reference to somebody willing to break the law.
DJ Hennessy ruled a five minute adjournment outside Judges’ Chambers and although she referred to the McKenzie Friend as “a great help” she told him that he “can’t do that”.
The McKenzie Friend for Ms Chalmers carried on referring to the police, breaking the law, people listening and threatened someone (unfortunately it was unclear from where I was who) with the threat of being arrested.
At this point DJ Hennessy adjourned the hearing, asked us all to leave and got on the phone.
The three from Wirral Council, Mrs Chalmers (plus her McKenzie Friend), as well as myself and Leonora left Judges’ Chambers to the waiting area.
After a wait in the waiting area till around 3 pm, myself, Leonora and Wirral Council were invited back in to Judges Chambers for the resumed hearing after the adjournment. A report on the resumed hearing is below.
DJ Hennessy explained that both Mrs Chalmers and her McKenzie Friend had left the premises but that she couldn’t wait indefinitely to complete the issues. Before the short adjournment there was the issue of the application which was not listed and whether it would be dealt with today [5th February 2020] or not?
Mr Bayatti answered no.
DJ Hennessy said that it had been agreed that there would be two separate cases with one heading to Liverpool. As she had said one had been treading water – but it was right to stop treading water and the case to be managed to a conclusion. Had Mrs Chalmers still been present she felt more progress could have been made.
DJ Hennessy referred to a case management conference (for the gross negligence case) and the need for the pleadings to be further particularised. However she said that such actions were not productive to do today [5th February 2020] in the absence of Ms Chalmers. She would look for another date as soon as possible so there was not undue delay as the previous delay was explainable. She offered a date of 30th March in the morning starting at 10 am?
Mr Bayatti replied that at that date and time he was expected at the Magistrates Court.
DJ Hennessy said that would have asked Mrs Chalmers if she was here, but if Mr Bayatti could make the afternoon of the 24th April at 2 o’clock?
Mr Bayatti said that date and time was “acceptable”.
DJ Hennessy confirmed 2pm on the 24th April at two o’clock for one hour with the application listed at the start.
Mr Bayatti asked for a copy of the application.
DJ Hennessy asked if he could hand it back to Rachel once it was copied but was there anything else?
Mr Bayatti referred to the 24th April hearing and asked if there could be progress on matters to get a final hearing date dealt with.
DJ Hennessy replied, thanked people and ended the hearing.
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