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By Rajiv Bhatt In the recent case of Barton v Royal Borough of Greenwich UKEAT/0041/14/DXA (in which the respondent was represented by Cloisters’ barrister Sheryn Omeri) the claimant came to find out that his line manager had emailed documents which contained personal data to what he thought was her unsecured home email address. He considered this to be a significant breach of the Data Protection Act 1998 (“DPA 1998”), and so contacted the Information Commissioner’s Office (“ICO”) and thereafter his line managers. The respondent instructed him not to contact the ICO again without the prior authorisation of his line manager,
We are delighted to announce that Jonathan Mitchell QC has joined Cloisters as an associate tenant. Jonathan, a member of the Scottish Bar, brings with him his great skill and experience in commercial law, discrimination and equality, employment, sports and entertainment, human rights, regulatory and public law. He is renowned for his strength in appellate matters and high-profile cases. "He is a class act, with a very wide range... an elegant, concise and forceful advocate...” with a “fierce intellect" Chambers and Partners 2015. Jonathan, whose wide civil practice is based in Scotland, has appeared 14 times in the House of Lords/UK
By Catriona Stirling Background The Supreme Court has handed down its judgment in the case of James Rhodes v OPO and another. The decision has, rightly, been presented as a victory for free speech, but it is also an important and interesting case from a tort law perspective. Mr Rhodes, a well-known concert pianist and author, wishes to publish his memoirs. Certain passages in those memoirs give a graphic account of horrific sexual abuse that he suffered at school and its effect on him. Mr Rhodes’ former wife wished to stop the publication of those passages on the ground that publication
The Metropolitan Police has again lost a major discrimination claim brought against it by a serving officer. Akua Reindorf represented PC Lichters in his claim for direct sexual orientation discrimination, harassment and victimisation. The Met's beleaguered Fairness at Work (FAW) grievance procedure was also criticised for failing to provide any mechanism by which a discrimination complaint can be upheld. The Employment Tribunal found that PC Lichters was discriminated against over a period of six years, from the beginning of his appointment to the elite Dog Support Unit. He was subjected to disparaging and discriminatory comments directly connected to his sexual orientation
By Olivia Dobbie In a judgment handed down today by a County Court sitting in Belfast, Ashers bakery was found liable for discriminating against a customer when it refused to fulfil his order of making a cake which was iced with the slogan “Support Gay Marriage”. Cloisters’ Robin Allen QC acted for the customer (the plaintiff) in this significant ruling which will have wide-reaching implications. The facts The customer, Mr Lee, is a gay man and is involved with a volunteer organisation called QueerSpace, supporting LGBT rights in Northern Ireland. He has a genuine and deeply-held belief that gay people should
In “Unreliable Evidence”, broadcasted on BBC Radio 4 on 13 May 2015, Clive Anderson and a panel of senior legal experts discussed the apparent failure of the Equal Pay Act 1970 to bridge the gender pay gap. Amongst those taking part was Cloisters barrister,Vice Chair of the Industrial Law Society and Cambridge academic Sarah Fraser Butlin who told the programme that court actions have replaced trade union collective bargaining as a force for social change in this area, but believes that this is an extremely inefficient way to correct pay inequality. For a link to the programme via the BBC website,
By Chesca Lord Last week, Eversheds announced that their client British Gas had lodged an appeal against the recent Employment Tribunal Judgment in Lock v British Gas. Eversheds stated that the appeal is on the following two grounds: “1. Commission and non-guaranteed overtime are dealt with under different provisions, which use different language, and the Tribunal incorrectly concluded that Bear Scotland, a case about overtime, had any bearing on the outcome of Lock. 2. In any event, the EAT in Bear Scotland incorrectly concluded that our domestic legislation could be interpreted purposively to give effect to EU law.” In light
In an interview with The Times today, barrister and Head of Cloisters' Civil Liberties and Human Rights Group, Schona Jolly joined other leading legal figures to call upon David Cameron for clarity on plans to scrap the Human Rights Act and replace it with a new bill of rights. The prime minister has so far given little indication as to what the new bill will contain. “Pressure should be put on the government now to publish the draft so that a well-informed factual debate can begin in earnest. The guessing game needs to be ended immediately” urged Schona. To read the full
By Sally Robertson Is it OK at a job interview to ask a woman about her childcare plans? The Guardian published the wrong answer from its workplace agony uncle, Jeremy Bullmore, last Saturday in http://bit.ly/1EZICkd. From her perspective as a working mother and former ‘Dear Jeremy’ columnist, Ruth Cornish gave a much better answer in her blogpost at http://bit.ly/1KJF9ac , while Darren Newman spelled out the law on less favourable treatment in his blog at http://bit.ly/1bA8uY1 What, though, if the woman is already pregnant and visibly so? If the bump prompted the question, is that enough to show unfavourable treatment? Yes.
Chambers is delighted to congratulate Schona Jolly on being shortlisted for 'Barrister of the Year' at The Lawyers Award 2015. Schona is head of Cloisters' Civil Liberties and Human Rights Group and on the Bar's Human Rights Committee. The shortlist for The Lawyer Awards 2015 was announced today. The winner will be announced at an awards ceremony on Tuesday 23 June at the Grosvenor House Hotel in London. For further information about the awards and the full list of those shortlisted please click here.
Five Cloisters' Silks will be on the panel of 22 leading Queen’s Counsel at the 22 Silk - Hot issues in Employment Law 2015-2016 conference devised and chaired by Michael Rubenstein. Robin Allen QC, Daphne Romney QC, Jason Galbraith-Marten QC, Caspar Glyn QC and Rachel Crasnow QC will be part of the expert panel who will update delegates on the latest key issues in employment law that are likely to be of concern in 2015-16. Date: Thursday 1 and Friday 2 October 2015 Venue: Strand Palace Hotel, London, WC2R 0JJ This two day conference will be of interest to all those advising on employment law
The Modern Slavery Act 2015 (MSA 2015) was one of the last bills to receive Royal Assent before Parliament was dissolved for the election. Schona Jolly, head of Cloisters' Human Rights Group, considers the new law and its shortfalls in this article published in Halsbury Law Exchange.
An update on the conjoined trials of Laurent Gbagbo and Charles Blé Goudé By Sheryn Omeri The prosecutions of former President of the Ivory Coast, Laurent Gbagbo, and his Sports Minister, Charles Blé Goudé, came before the Trial Chamber of the International Criminal Court (‘ICC’) on 21 April 2015 for the first time since June and October 2014 respectively. Both Messieurs Gbagbo and Blé Goudé were the subjects of arrest warrants issued by Pre-Trial Chamber III of the ICC on 23 November 2011 (Gbagbo) and 21 December 2011(Blé Goudé). The warrant issued in relation to Laurent Gbagbo made reference to four
USDAW v Woolworths C-80/14 By Declan O'Dempsey Today the CEJU handed down its judgment on C‑80/14 Union of Shop, Distributive and Allied Workers (USDAW), B. Wilson v WW Realisation 1 Ltd, in liquidation, Ethel Austin Ltd, Secretary of State for Business, Innovation and Skills. Since the Advocate General’s Opinion in [5/2/15] the expectation has been that the CJEU would rule against the union’s interpretation of when the rules for collective redundancy apply, and this has now happened. However the reasons are interesting as they represent a balance being struck the CJEU. The case is a reply to a request by the
Daphne Romney QC talked to Jenni Murray on Radio 4 Woman’s Hour on 30 April 2015 about why sexual discrimination and harassment are still so rife in the City and how women who object to the aggressive and often crude male sexual messages are often described as ‘cry-babies’. "What men see as ‘banter’ other people see as abuse “, she says. She also described the mental and physical toll and career consequences of bringing proceedings in a tribunal. Svetlana Lokhova, the City Banker who was awarded £3 million pay-out for sex discrimination and harassment at work described how she was subjected
University and College Union v University of Stirling When are proposed dismissals for reasons not related to the individuals concerned? This is the question that employers, trade unions and Employment Tribunals must address when considering whether an employer is obliged to consult about collective redundancies, because it is only when a dismissal is for reasons unrelated to the individual concerned that the duty to consult arises. The Supreme Court endorsed the ‘admirable test’ stated by the Employment Appeal Tribunal in University and College Union v University of Stirling: ‘A reason relates to the individual if it is something to do with
Declan O’Dempsey reports back from the ERA Seminar for the judiciary held in Prague on 22-24 April, on the Court of Justice of the EU’s current views on how to draft a good request for a reference for a preliminary ruling. There are many lessons practitioners can draw on how to ask for a request to be made by the Court or Tribunal. See here for the full article
Chestertons v Nurmohammed By Daphne Romney QC In order to qualify as a protected disclosure, a disclosure must be a qualifying disclosure, namely that it must fall within the categories listed in section ERA 1996 43B(1) as inserted by the Public Interest Disclosure Act 1998, and now re-amended by the Enterprise and regulatory reform Act 2013. Various Parliamentarians have had a go at defining this clearly and have failed. Before 1998, there had been two attempts to introduce a measure to afford protection and encouragement to whistleblowers. The first Bill in 1995 was inspired by a number of preventable scandals
Cloisters' barrister Sheryn Omeri discusses the most recent decision in Hounga v Allen, a case where the claimant, Miss Hounga, had arrived in the UK on a fraudulent passport which she had used to secure a 6-month visitor’s visa and worked illegallyas a home help for the first Respondent (Mrs Allen) in London for a period of 18 months. Read Sheryn's full article in Counsel Magazine. April 2015 issue
Cloisters barristers, Rachel Crasnow QC, David Massarella and Jennifer Danvers are giving a talk to the Royal College of Nursing on the dishonesty test within regulatory proceedings and how this has developed over time. The lecture on Monday 20 April is in London.
By Patricia Hitchcock QC Shortly before Parliament rose for the election, the Public Administration Select Committee (PASC) published a report calling on the next Secretary of State for Health to set up a new, independent patient safety investigation body as a matter of priority. Lawyers specialising in medical cases, and patient advocate organisations, have for some time protested the lamentable inefficacy of the NHS complaints procedure and the highly regional approach of NHS Trusts to self-scrutiny and Serious Untoward Incident reporting. Despite long-standing official policies of honesty in the main medical defence organisations’ and Trusts’ policies, and recent drives towards a
Cloisters barristers, Patricia Hitchcock QC and Joel Donovan QC join leading expert panel of speakers at MBL's Hot Topics and Perennial Problems in Clinical Negligence conference on Friday 17 April 2015 in London. Patricia, who will chair the conference, specialises in clinical negligence, catastrophic personal injury, inquests, medical law and related administrative and regulatory matters. She is regularly instructed in substantial matters in the higher courts on both liability and quantum, especially brain and spinal injuries; cancer; psychiatric negligence; fatal accidents. Patricia is regularly invited to speak at and/or chair medico‐legal conferences and co‐authors the limitation law division (to 2014) and claims of
A team of four Cloisters’ barristers, Claire McCann, Olivia Dobbie, Sian McKinley and Chesca Lord, have co-written a response to the public consultation by the European Commission in connection with its review of the Working Time Directive. The consultation was announced in December 2014 and concluded on 18 March 2015. Here is a link to the response document. It is hoped that the Commission’s review will address the impact of recognised changes to working partners since the first Working Time Directive was implemented more than 20 years ago. Fundamental changes to the economy, technology and working patterns have impacted greatly on the
Caspar Glyn QC and Daniel Dyal On Monday 13 April 2015, Caspar Glyn QC and Daniel Dyal will address the Employment Lawyers Association in an evening training session in London on the hot topic of holiday pay. Here are a few tasters of the issues they will discuss and links to some of the source materials: - Commission: following victory in Europe before the CJEU, Mr Lock has tasted victory in Leicester before the employment tribunal (Lock v British Gas). But how significant is this victory? Could its impact, for instance, be mitigated by simply including an element of rolled-up holiday
William Latimer-Sayer highlights some points arising out of the record-breaking award in Robshaw v United Lincolnshire Hospitals NHS Trust  EWHC 923 (QB). The highest final court award following a contested personal injury or clinical negligence trial has remained static since the decision of Lloyd-Jones J, as he then was, in A v Powys Health Board  EWHC 2996 (QB). The lump sum award of £10.7m for an Irish national, the first to break the £10m barrier, set a new high watermark at the peak of the Celtic Tiger, moments before the financial markets came crashing down and the world plunged
Simon Dyer chaired the 2015 AvMA Cerebral Palsy & Brain Injury Cases Conference. In his session on Current Issues in Cerebral Palsy & Brain Injury Cases, Simon discussed Tippet v Guy's & St Thomas' Hospital NHS Foundation Trust, Baynhan v Royal Wolverhampton Hospitals NHS Trust, trends emerging from recent cases and legislative updates. For Simon's lecture notes please click here.
by Claire McCann Cloisters has joined Your Employment Settlement Service(YESS) Law, Maternity Action and Working Families to produce and disseminate vital information on the complex rights associated with shared parental leave which may be taken in respect of babies due to be born on or after 5 April 2015. The shared parental leave regime is complicated and tricky to understand. The alliance of Cloisters with these key family rights organisations is called SPLash and we will be producing factsheets and blogs to help increase awareness and understanding for parents and employers on shared parental leave and pay. The first blog, “Shared
Cloisters barrister, William Latimer-Sayer, led by Susan Rodway QC, appeared for the successful Claimant in a case that saw the highest ever medical clinical negligence award in history. The High Court ruled today that United Lincolnshire Hospitals NHS Trust must pay £14.6 million for birth injuries to James Robshaw, after failing to carry out a Caesarean section on his mother Suzanne Adams and properly monitoring her during labour. Her son James suffered catastrophic injuries as a result of obstetric negligence. Liability was admitted. Instructing solicitor: Denise Stephens at Shoosmiths. For judgment read: James Robshaw (a child by his mother and litigation friend
Gareth Lee v Ashers Baking Company Limited Belfast High Court reserved judgment yesterday in the case of Gareth Lee v Ashers Baking Company Ltd - a case that could have wide-reaching consequences for shop owners. Robin Allen QC, acting for gay rights activist Gareth Lee, told the court why a business should not “be allowed to break a contract with a single individual over small sums of money in a way that is tortious and in breach of equality law” irrespective of the fact that the business owner was acting on his or her religious beliefs, the Guardian reports. Mr Lee,
Cloisters’ barrister Caspar Glyn QC and former Chair of the Industrial Law Society will give a talk on Whistleblowing at the Radisson Edwardian Hotel, Free Trade Hall in Manchester on 28 April 2015 at 6pm. Caspar will analyse the changes following the biggest shake-up to whistleblowing legislation in 2013 and will predict how the courts will approach this plus turning to practical advice for both Claimants and Respondents as to how to fight and win whistleblowing cases under the new law. See more information at: Whistleblowing - How to fight and win under the new law Refreshments will be served from 5.30pm onward.
Cloisters barristers, Caspar Glyn QC and Daniel Dyal, will conduct an evening seminar for the Employment Lawyers Association (ELA) on the topic of Holiday Pay Claims on Monday 13 April 2015 at the Royal College of Surgeons, Lincoln's Inn Fields. London Their talk will analyse where we are, suggest where we are going and will consider the known unknowns and unknown unknowns, charting a practical way forwards for advisors. Key highlights covered will include: • In or out? Voluntary Overtime, Bonuses, Commissions, Role Based Allowances & others types of payment. • What is Normal? • Reference periods - 12 weeks or more? Employer / employee abuse. • Series
By Catherine Richmond When I told my friend two years ago that I had spent my morning wading through the government’s proposals to introduce shared parental leave, he asked hopefully whether that was something to help frazzled parents get away from the kids for a few days (he takes care of his full-time). It was hard to disappoint him. But he was enthusiastic about the prospect of leaving behind the outdated assumption that it is always the mother and not the father that will be responsible for the care of a baby for the whole of its first year. It was
By Dee Masters and Siân McKinley Overview Since C-303/06 Coleman v Attridge Law, a person may bring a claim for direct discrimination if they are treated less favourably because they are associated with a protected characteristic, such as disability or race, even if they do not share that protected characteristic. The facts of Coleman provide a classic example of permissible associative direct discrimination in that Ms Coleman was subjected to less favourable treatment because of her disabled son, for whom she was the primary carer, and that role directly and negatively impacted on her employment relationship. In March 2015, AG Kokott
By Jason Galbraith-Marten QC and Rachel Crasnow QC Tony Hall, the BBC’s Director General, announced on 25 March that Jeremy Clarkson's contract will not be renewed after an "unprovoked physical attack" on a Top Gear producer, Oisin Tymon. It is widely reported that Mr Clarkson has hired lawyers, presumably to advise him about his rights against the Corporation. Less coverage has been devoted to the rights of Mr Tymon. Jeremy Clarkson was suspended on 10 March, following what was called a "fracas" with Mr Tymon. The row, which took place in a Yorkshire hotel, was said to have occurred because no hot food
Judgment of the Employment Tribunal in Lock v British Gas (25 March 2015) Commission payments should be included in holiday pay, according to Leicester ET By Adam Ohringer When Lock v British Gas  ICR 813 was considered by the Court of Justice of the European Union (“CJEU”) the principle behind the calculation of holiday pay appeared clear: “The purpose of providing payment for that leave is to put the worker, during such leave, in a position which is, as regards his salary, comparable to periods of work” This meant that Mr Lock’s holiday pay should take account of what he
By Tamar Burton It has long been the case that the multiplier in a fatal accident claim is assessed at the date of death rather than at the date of trial: Cookson v Knowles  AC 556. This is unlike the position in personal injury claims with living claimants where the multiplier is assessed at the date of trial. The Cookson v Knowles Problem Claimant lawyers, academics and the Law Commission have argued that the Cookson v Knowles approach causes unfairness and results in the under-compensation of dependants. The injustice is two-fold. First, a delay between the date of death and
Chambers is delighted to congratulate Sarah Fraser Butlin who was elected Vice Chair of the Industrial Law Society at its recent elections. She is joined by Anna Beale who is the newly elected Secretary and Declan O’Dempsey on the executive committee. Sarah Fraser Butlin is and employment specialist ‘noted for her strength at appellate level, and is recognised for her strong grasp of the technical minutiae in a case. She is very bright, client-friendly and excellent at cross-examination." (Chambers and Partners). Anna Beale is an employment specialist employment specialist, "well respected for her work on cutting-edge discrimination cases", who also maintains
Daphne Romney QC, instructed by Fox & Partners, represented 3000 Claimants, including carers, cooks, cleaners, school crossing patrollers, sheltered housing wardens and caretakers working for North Lanarkshire Council. They were claiming equal pay with male comparators following a job evaluation scheme brought into effect in November 2006. The comparators included refuse collectors, refuse drivers, street sweepers and gardeners. The case was adjourned part heard in January for negotiations. Yesterday (19 March 2015), the Council approved a settlement agreement reached between the Fox Claimants, the Unison Claimants and the Council. This means that settlement offers will sent out to the Claimants by
Cloisters barristers Rachel Crasnow QC and Yvette Genn are invited to speak at the Law Society’s Law Management Section HR Forum on Tuesday 24 March 2015. Rachel’s talk will cover gender and diversity highlighting issues of: Equal pay – spotlight on law firms Equalising pay Gender and diversity balance – practical steps Yvette will talk about flexible and part time working, highlighting issues on: Employer obligations (update) Different for fee earners v support staff How to deal with flexible working requests Refusals – avoiding discrimination Venue Law Society 113 Chancery Lane, London WC2A 1PL Start time 09.00am/ 10.00 am registration. End
By David Massarella On 13 March 2015 the London Central Employment Tribunal gave judgment in a test case about the right of the England and Wales Cricket Board (‘EWCB’) to dismiss first class umpires (‘FCUs’) at 65. In Willey and Sharpe v England and Wales Cricket Board it rejected the idea that the EWCB could rely on its stated aim of avoiding disputes about potentially failing capability and so ‘preserving the dignity’ of the umpires, but found that their dismissals were not unlawful age discrimination because they were a justified means of pursuing the aims of bringing on new talent and
By Jennifer Danvers The recent EAT judgment in Henderson v GMB is a must-read for practitioners seeking to advance or respond to claims of discrimination on the grounds of philosophical belief. The Facts Keith Henderson, a GMB Regional organiser was dismissed on 7 December 2012. At first instance the Tribunal held that Mr Henderson had been fairly dismissed for gross misconduct (being unmanageable and making unsupported allegations of collusion between the GMB and the Labour party), but that he had suffered direct discrimination and harassment on the basis of his “left-wing democratic socialist beliefs” for which he
Spinal orthopaedic specialist found negligent in failure to diagnose child with scoliosis Simon Dyer Cloisters clinical negligence and personal injury barrister acted for the successful claimant in Tresidder v Royal Cornwall Hospitals NHS Trust (Queens Bench Division)11 March 2015 where an eminent spinal orthopaedic surgeon was found to have negligently decided that an eight-year-old boy did not have scoliosis, despite the independent opinions of two GPs and the raised concerns of the boy's mother. On the balance of probabilities it was found that the boy did have scoliosis that was just within the visible range at the time. The court was required to
By Joel Donovan QC The Supreme Court's decision in Montgomery v Lanarkshire CC  UKSC 11 is the most significant of the 21st century on the issue of consent to treatment. It enshrines (para 87) a doctor’s duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is a broad one. The exceptions, such as the incapacitated patient, are narrow. Thus the Supreme Court has at last completed, more or less, the long march towards a law of
If WhatsOnStage recommended you a play about a woman sacked for sexual harassment of another woman at the Office Christmas Lunch, even though the alleged victim had never made a complaint, you might have thought it sounded too far-fetched. Sadly for Terri Paddock, its well-known Managing Director, it was all too true. Two days after the lunch Ms Paddock, who had been having difficulties with the US company which owned WhatsOnStage, was called in to see the CEO, Gretchen Shugart and the CFO Joe Yurcik (at which they both been present) and was accused of touching a colleague’s breast for 30
By Catherine Casserley The Supreme Court handed down its decision yesterday in Akerman-Livingstone v. Aster Communities Ltd (formerly Flourish Homes Ltd)  UKSC 15 in which it considered the test of justification for discrimination under section 15 of the Equality Act 2010 (the EqA) as compared with justification for Article 8 of the Convention. The appellant, who has chronic and severe mental ill health, and who met the definition of disability for the purposes of section 6 of the EqA, had been placed in housing association accommodation after being homeless in 2010. The local authority had a duty to provide him
By Siân McKinley In the recent case of A (A Child) v University Hospitals of Morecambe Bay NHS Foundation Trust  EWHC 366 (QB) the claimant was awarded the cost of installing a hydrotherapy pool in her home. Here we look at the circumstances in which a defendant will be ordered to pay such expensive costs. Facts As a result of negligent delivery at birth, A suffered severe quadriplegic spastic cerebral palsy. A has virtually no spontaneous ability to use her arms and legs. She frequently suffers from painful spasms and as a result has prolonged periods of crying and screaming.
The Cambridge Journal of Economics has recently published an article which Sarah Fraser Butlin co-wrote with Professor Simon Deakin, Colm McLaughlin and Aleksandra Polanska looking at equal pay litigation. The paper (available here) is a socio-legal case study considering the recent wave of equal pay litigation and exploring the role of collective bargaining and litigation in advancing the equality agenda. The study explores the role of various actors in the litigation and collective bargaining and concludes that litigation may be a more potent force for social change than some recent accounts have suggested. The Independent has also reported on the study:
By Will Dobson I have previously blogged on the question of whether awards for injury to feelings are taxable in the context of settlement agreements: (see link) The EAT (presided over by Singh J) in Timothy James Consulting Ltd v Wilton concluded that awards for injury to feelings are exempt from tax. In doing so, it declined to follow the First Tier Tax Tribunal decision in Moorthy v HMRC which held there is no exemption from tax for awards for injury to feelings. The facts of Timothy James Consulting are unremarkable and will not be rehearsed here. The Employment Tribunal had
Rachel Crasnow QC, Cloisters barrister, is to speak on the topic of "Fighting for Adjustments: twenty years of the DDA" at the ILS One Day Spring Conference which continues to deal with the cutting edge legal issues that affect the worker; from all sides of the debate. Line-up of speakers include Sir Brendan Barber, Chair of ACAS who will open the conference on an important and topical subject: "Workplace Conflicts: How best can these be resolved?" Dr Amy Ludlow, Fellow and College Lecturer in Law, Gonville and Caius and Affiliated Lecturer, Faculty of Law, University of Cambridge and Catherine Barnard, Professor of EU
By Declan O'Dempsey Today (3 March 2015) the Divisional Court gave judgment in Ben Hoare Bell Solicitors & Ors, R (On the Application Of) v The Lord Chancellor  EWHC 523 (Admin). Four firms of solicitors who provide legal services in public law areas and a charity providing advice, support and services to homeless and badly housed people in England challenged the regulations which introduced the requirement that if an applicant for permission to bring judicial review failed to gain it, the legal representative would not be paid for the work done in relation to that permission application. This was brought