Author name: Laetitia Rebeckah

Issues – Whether it is possible to determine the issue of the effect of the relevant clauses in a summary judgment or whether that determination needs to await trial. Whether breaches of agreement committed fundamentally, deliberately, and wilfully fall within the scope of restrictions and exclusions clauses contained in the SSA. Facts – The claimant is an engineering consultant, and the defendant is an engineering contractor. In 2016, the defendant was contracted by the Defence Infrastructure Organisation (“the DIO”), an operating arm of the Ministry of Defence, to create a new power station at RAF Mount Pleasant. It employed the claimant to give primary design consultancy services in the tender period. After the defendant obtained the contract from the DIO, there were other arrangements between the defendant and the claimant, but a quarrel occurred because the claimant stopped payments and the defendant then blocked access to the project’s data. In July 2017, the defendant made an interim injunction to gain the data which was granted. In November 2017, the parties established a settlement and services agreement (SSA), with an intention to settle the present dispute and to rule their current operations. Appendix 3 set out the terms and conditions of the SSA, and containing four schedules handling the conditions, the timetable, the personnel, the equipment and facilities to be provided by defendant, and the terms of payment; at clause 9 was agreed that the SSA was to be in full and final settlement of all prior claims. There were three relevant clauses: the liability cap at clause 1.4.1 ii) a, the exclusions clause at clause 1.4.1 ii) b; and the net contribution clause at clause 1.4.1 iii). The claimant made an application for a summary judgment based on these clauses. He denied the alleged breaches and told that as a matter of law and of construction of the SSA, even supposing the breaches are demonstrated and found to have been fundamental, wilful, or deliberate, the SSA’s exclusion and limitation clauses would achieve to exclude or limit the claimant’s liability. Rules for a Summary Judgment The court may give a summary judgment against a claimant or defendant on a claim if it considers that the claimant has no real prospect of succeeding on the claim or issue; that the defendant has no real prospect of successfully defending the claim or issue ; and there is no other competing reason why the case or issue should be disposed of at trial; the court must not conduct a mini trial, nonetheless it must take in account claimant’s statements or documents; the court must consider the evidence before for summary judgment, and in addition the evidence that can be expected at trial; under part 24 CPR, it must found on a point of law or construction, if a case is bad in law, it has no real prospect of succeeding. The Construction of Contracts in General The court interprets the relevant words of a contract in their documentary, factual and commercial context, assessed in the light of: (i) the natural and ordinary meaning of the provision being construed; (ii) any other relevant provisions of the contract being construed; (iii) the overall purpose of the provision being construed and the contract or order in which it is contained; (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed; and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions. A court can only consider facts or circumstances known or reasonably available to both parties that existed at the time that the contract or order was made. In arriving at the true meaning and effect of a contract or order, the departure point in most cases will be the language used by the parties, because, (a) the parties have control over the language they use in a contract or consent order, and (b) the parties must have been specifically focussing on the issue covered by the disputed clause or clauses when agreeing the wording of that provision. Where the parties have used unambiguous language, the court must apply it, if there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. The Approach to the Construction of Exemption Clauses Clauses restricting or excluding liabilities are to be construed following the principles applicable to contracts generally – clear words are required for such clauses. Whether an exclusion clause is to be applied to a fundamental breach, or a fundamental term breach, or to any breach of contract, rests on the construction of the contract. A basic principle of the common law of contract is that parties to a contract are free to determine for themselves what primary obligations they will accept, the presumption being that they intended to accept the implied obligations, and exclusion clauses are to be construed strictly. Conclusion The breaches alleged were subject to the exclusions and limitations set out in clause 1.4.1; there were no solid probabilities of a conclusion that the words used did not produce to exclude liability for the breaches alleged at a trial. The net contribution clause was clear, conserving the contractual effect of the claimant’s obligations. The decisive point was whether the clauses concerned were set out in a clear language capable of covering breaches alleged by the defendant and was in an implied agreement accepted to be an exhaustive regulation of the parties’ future dealings. It was concluded that if properly construed, limitations and exclusions clauses were applicable to breaches of a SSA by a party, even fundamental, deliberate, or wilful. The summary judgment was granted in favour of the claimant.

Issue; Whether or not life-sustaining treatment is in the best interest of someone who lacks capacity to consent to or refuse such treatment? Facts; Lilia was perturbed for some time; she was under the care of a psychiatrist since December 2019. She was diagnosed with a Personality Disorder and Emotionally Unstable (EUPD) and had a history of self-harming behaviours. On 29th December 2020, Lilia consumed an excess of paracetamol, she was brought in Accident and Emergency (A&E). The day after, she was of one’s own free will admitted to a private psychiatric hospital to treat her depression as well as a post-traumatic stress disorder (PTSD). On 18th January 2021, while she was still hospitalized in the psychiatric hospital, Lilia attempted to end her life. Lilia was taken by air ambulance to a London hospital for neuro-critical care. She stayed in a vegetative state. Her father made proceedings on 26th January and her mother in February was appointed welfare deputy. At an initial hearing, the judge appointed an Official Solicitor to represent Lilia and the NHS Trust to put in place evidence. The uncontested medical opinion was that Lilia had suffered a catastrophic global brain injury resulting in a prolonged disturbance of consciousness, from which she will not get well. It was regarded that continuing to provide respiratory support, maintenance treatment life, or to administer cardiopulmonary resuscitation in the event of cardiac arrest, were oppressive and pointless, since there was no outlook for the future, and that it was not in Lilia’s best interests. They believed that continued treatment was unethical. The Substantive Application: Legal Framework The Mental Capacity Act 2005 lays the statutory scheme in respect of individuals aged over 16 who lack capacity: “s.15 gives the court the power to make declarations as to whether a person lacks capacity to make a specified decision and the lawfulness or otherwise of any act done or to be done in relation to that person; s.16 gives the court the power to make an order and make the decision on a person’s behalf; s.48 gives the court discretion to make an order on an interim basis and in particular if it is in the person’s best interests to make the order without delay; s.2(1) of the Act provides that a person lacks capacity if, ‘at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’; it does not matter whether the impairment or disturbance is permanent or temporary; the determination of whether a person lacks capacity is to be made on the balance of probabilities; s.3 settles diverse criteria by which the court should determine whether a person is unable to decide; s.1 of the Act establishes the principles applicable under the Act, sub-section (5) provides that ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done in his best interests’.” On 9th March 2021, the judge made the final declaration that Lilia did not have the capacity to conduct her proceedings and make decisions regarding her care and treatment. The evidence presented to the court by the doctors all agreed that Lilia, following his suicide attempt, was in a persistent vegetative state and a state of minimal consciousness. Lilia’s mother, sister, and friends concurred with the clinicians and did not want the treatment to carry on, based on what they had learnt about Lilia’s personality and values, and from the conversations they had had with her. On the contrary, her father kept the faith that there was a possibility for his daughter to regain her health, so he requested a second opinion; on another hand, he was sure that Lilia’s would have chosen to continue her treatment to live, in any circumstances. The judge then allowed the father to instruct an expert, who validated his colleagues’ verdict. The final hearing sat on 22nd March 2021. Section 4 Mental Capacity Act; Best interests The s.4 of the Mental capacity Act deal with the best interests of a person who lacks mental capacity: “(1)(a) the determination must not make it merely on the basis of the person’s age or appearance…, (3)(a) whether it is likely that the person will at some time have capacity in relation to the matter in question…, (5) whether life-sustaining treatment is motivated by a desire to bring about his death…” In Re A (A Child), the Court of Appeal fixed the balancing exercise to decide an end of a life-sustaining treatment in the best interests of an individual: the decision have to be objective, it is not about what the judge might do for himself or for a child; the best interests cannot be evaluated mathematically, or include all the considerations such as medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) and others discussions; whether there was considerable weight or a strong presumption for prolongation of life, but it was not infallible; the pain, the suffering, the quality of life as well as the pain and suffering involved in the proposed treatment, recognizing that even people with very severe disabilities can have a rewarding quality of life, must be think about; and the cases must be assessed on a case-by-case basis, each being singular. Soberly, bearing in mind Lilia’s medical evidence concerning her current condition; the prognosis; the remote possibilities of neurological improvement; possibilities of a significant quality of life; the inevitable harm that medical treatment will generate, even supposing that Lilia would not be aware of it; family and confidants’ point of views; and specialists’ opinions, the judge closed declaring that he was satisfied that it was not in Lilia’s best interests to administer life-sustaining medical treatment, but rather that it was in her best interests to arrange a palliative care plan, whose the result, but not the intention, will be the end of his

Mentorship in the racing and strict industry as the legal profession is crucial. Mentoring is an invaluable learning opportunity and can provide the mentor with beneficial skills for their career as a barrister such as trust, communication, organization, or critical thinking. During a mentorship, a mentee can benefit from reliable advice, guidance, and data such as those that could not be found online. Mentorships are a great process for aspiring barristers seeking breaking in and supervision for their route. The experience of a mentee Hashi Mohamed is a planning lawyer who came from Kenya to the UK. Author of ‘People Like Us’, he talks about the power of mentoring that made him go from being a refugee child to being a barrister. Mentoring first gave him access to people, things, and information that he couldn’t find on his own, whether it was an outing to the theatre, an introduction, or a show, to ‘a detailed analysis of the psychological landscape of the profession. Tips ranged from dress codes, presentation skills or writing a resume to reading a play, determining where you fit into a particular group or the difference between having a goal and having a plan; then a space where he could ask all the questions he wanted, and the possibility of undertaking by proposing ideas; from there, his mentors were honest about his strengths, weaknesses, and the challenges he would face; and finally, a future he hadn’t imagined. A mentee becoming mentor Having received mentorship, Hashi later assumed a mentoring role. He thinks that ‘Mentees need limits, and it is not doing them a service to consider behaviours that in fact will not be.’ He once asked a young man to come to his chambers for an observation. He was four minutes late and had brought neither pen nor paper. ‘At the Bar, nothing is more important than being prepared, and you will never get there if you are messy.’ So, I sent him home right away! He is convinced that ‘if it may have seemed excessive to him at the time, it is what he needed at this particular time.’ ’ Hashi also believes that ‘to mentor effectively, it needs to be used honesty, sensitive topics such as race, prejudice and privilege should not be ignored because this will leave an empty in the mentee’s understanding of its situation and it will do it a disservice.’ Mentoring is not about getting someone through, it’s about getting them on the same starting line as everyone else. It’s as if the path to success is on a scale from one to 10, with social mobile starting at zero, and everyone else starting at five. Your work relates to these first five steps; after that, they should be able to take care of themselves. Mentoring programmes for underrepresented groups There are many excellent mentoring programs possible within the legal community for potential mentees and mentors to join in such as: • Cornerstone Barristers, Field Court Chambers, FTB Chambers, Kings Chambers and Landmark Chambers, specializing in Planning, Property and Public Law have set up a mentoring scheme for underrepresented groups at the Bar. The scheme is intended to encourage undergraduates and postgraduates from groups that are not well represented at the Bar to consider becoming barristers. • Blackstone Chambers, Brick Court Chambers, Essex Court Chambers, Fountain Court Chambers, Gatehouse Chambers, Keating Chambers, 7 King’s Bench Walk, Monckton Chambers, One Essex Court Chambers, and 3 Verulam Buildings created a scheme to support individuals from groups that are underrepresented at the Bar of England and Wales (particularly the Commercial Bar) to pursue careers as barristers. The Bar initiative follows measures introduced by leading City law firms to improve diversity, with Allen & Overy, Clifford Chance, and Baker McKenzie among those taking action; • One Essex Court offers a ‘Women At the Commercial Bar Mentoring Scheme’ an opportunity for potential applicants to the Commercial Bar to connect with a female barrister who can share her experiences and provide career guidance. A Mentoring Diversity Initiative In September 2020, the Bar Standards Board (BSB) Race Equality Taskforce introduced a project of ‘a Reverse Mentoring Programme’ consisting of removing barriers to racial equality at the Bar. The programme put together bar students and junior lawyers from ethnic minority groups as mentors, with senior white lawyers as mentees. The teams hold regular one-on-one meetings to discourse about racial equality problems touching the field. Themes comprise the first time the mentor and mentee remarked a lack of inclusion at the bar; what it is in the chambers; and the cases of racial discrimination they have witnessed. ‘Reverse mentoring’ is more probable to bring mutual benefit for mentor and mentee to people who would not have been able to meet otherwise.’ The importance of a proper mentoring In 2019, The Bar Standards Board (BSB) made an audit to know feelings on the system requiring barristers under the age of three years of practice to follow the instruction of an experienced barrister when exercising hearing rights; undertaking litigation or performing public access work. In conclusion, research implied that the efficacity of mentoring rested on the level of support provided to NQ barristers by QPs. Some questioned if it was too traditional or always needed. Mentoring is at each stage of a career. Personal development never ends, especially in the legal sector where a continually changing business climate demands flexibility and novelty. Chambers are now advised to set up mentoring schemes accessible to all levels of seniority. Private practice at the Bar can feel solitary and uncertain, competition is fierce and the adage ‘you are only as good as your next case’, resonates in all practitioners’ minds. Regarding aspiring barristers, you can also envisage organizing your own mentoring relationship. There is no right moment to find a mentor to be guided.