Personal Blogs

Every once in a while, I will use this blog for a post that has nothing to do with case summaries. This is one of those times.

The past few months have been a whirlwind of activity for me. I have been to London and not only managed to finally witness a trial (an attempted murder) at the Old Bailey before the fire alarm and subsequent evacuation rudely interrupted the day, but I have also watched the Court of Appeal – Criminal Division in action at the High Court, visited Middle Temple and found answers to the many questions I had, and booked my next Inn visit. I have entered the Open University Law Society’s inaugural speed moot with a Bail Application where I came third, as well as taking part the national Speed Mooting competition in Manchester where I had a brain freeze on the tort of private nuisance. An irony not lost on me given the topic of my end of module assignment.

Yet, despite all this, I find myself pondering on two different…occurrences…that before this past month I had never directly experienced before. I knew from others; from talking, reading posts and listening to podcasts; that the deputy downers and the nay-sayers within the legal sector existed. And I have been lucky enough to have avoided them – until this past month.

The first was a LinkedIn post, which questioned the sanity of first-year university law students, and if they knew what they were letting themselves in for by setting their cap to the Bar because there are not enough pupillage positions to go around.

And as an Open University law student and career shifter who is, in full-time terms, coming to the end of her first year, I can say with complete sincerity – yes I jolly well do know!

I know that the providers of the Bar Practice Course are oversubscribed. I know that by June 2024, 2378 students were enrolled across the board (The Law Gazette, 2024a). And I know that there is a wide range of pass rates depending on the provider (BSB, 2024b)

I know this is why it is recommended you work your socks off at getting a First because that holds you in better stead for passing the Bar course, as the pass rates drop massively for those with an Upper Second and Lower Second (The Law Gazette, 2024a).

And I also know that having a First, Upper Second or Lower Second does not guarantee that you will pass the Bar Practice Course in the first place.

And I know from the Bar Council’s Pupillage Gateway Report 2024 (Bar Council 2024c) that there were 671 pupillages available. Which means that even with my poor mathematics calculations, using the figures provided above, that there is a 3.54% chance of obtaining pupillage if every current 2378 student applies.

And that that percentage will drop when taking into account all previous Bar course students who are making a second, third, fourth or fifth pupillage attempt on the Gateway.

So, yes, in answer to the question, as a first-year mature law student and career shifter, I jolly well do know how hard it is going to be thank you very much!

And now I have had my grumble about that, this is the second, and this is the one that took me by surprise.

This was unsolicited advice in the middle of an otherwise pleasant conversation. In a nutshell, I was told to not bother with attempting the Bar. That there is a certain type of person who is looked for, that there is a certain type of education that is expected, that getting pupillage is for the elite, that the pass rate of obtaining pupillage is low (which I know, see above) and that I would be better off qualifying as a solicitor and obtaining Higher Rights first, and maybe then think about cross-qualifying. At least that is what they would do if they were in my shoes.

Right. Okay. Give me a moment to process.

When all you know about me is that I bombed my A-levels 26 years ago, that I started my LLB 2 years ago and career shifted 1 year ago, you are telling me, right here right now, not to attempt the Bar?

You do not know me professionally, personally, nor academically beyond my lack of A-levels and current LLB study, nor do you know about my paralegal diploma, or my abilities and capabilities, or anything that I have done these past few months, or the experience I have beyond that, or anything of what I am planning next, and you are telling me, right here right now, not to attempt the Bar?

Forgive me, but that is quite projectionist. That is what you would do if you were in my shoes.

And forgive me again, but I am not naive. I know my chances of the Bar. I understand my chances of making it to the Bar. The figures above show I know. But being a career shifter has given me a different perspective of myself, of what I will and will not accept now, and that in turn has given me that internal knowing that I have to find out for myself if I am worthy enough of making it to the Bar, and being the advocate society needs. And there is only one way I can do that.

But I am not naïve. I do have a backup plan. And being a successful career shifter is that backup, as I am working on gaining the knowledge and experience needed for the promotion to paralegal, and qualifying work experience. That is for the SQE, before obtaining Higher Rights.

I will qualify, one way or another. But to quote Fate"s "watch this" after she stumbled out of the pub blind drunk when the world dared to whisper “it can’t get any worse” at the end of lockdown...

I do not know what is coming next, but like I will do myself, watch this.

References

The Law Gazette, 2024a “Bar course uptake continues to grow - along with fees, BSB data shows” by Bianca Castro, 19 July 2024. Available at:

https://www.lawgazette.co.uk/news/bar-course-uptake-continues-to-grow-along-with-fees-bsb-data-shows/5120408.article (Accessed 03 May 2025),

BSB, 2024b “The BSB publishes its 2024 statistics report on Bar course enrolment, results, and student progression by course provider” Press release, 16 July 2024. Available at:

https://www.barstandardsboard.org.uk/resources/the-bsb-publishes-its-2024-statistics-report-on-bar-course-enrolment-results-and-student-progression-by-course-provider.html (Accessed 03 May 2025).

Bar Council, 2024c “Pupillage Gateway Report 2024” Report, 28 November 2024. Available at:

Citation: McKenzie v McKenzie [1970] 3 All ER 1034

Court: Court of Appeal (Civil division)

Date: 12^th June 1970

Procedural History: Family Court – Defended Divorce - 1969

Judges: Davies LJ, Sachs LJ, Karminski LJ

Legal Issues: Was a Litigant in Person (‘LiP’) entitled to be accompanied in court by a legal professional of a different jurisdiction, for the purposes of prompts, the calling of witnesses and cross-examination suggestions, and did the removal of the friend cause prejudice to the LiP and procedural irregularities that required remedy through retrial.

Concurring opinions: Davies LJ, Sachs LJ, Karminski LJ

Dissenting opinion: None

Facts:

Mrs Maizie McKenzie and Mr Leveine McKenzie initiated divorce proceedings in 1965. Mrs McKenzie made claims of cruelty against Mr McKenzie, and Mr McKenzie made claims of cruelty and adultery against Mrs McKenzie and Joseph Graham.

Due to the complexities of the defended divorce (a refusal to agree that the marriage has irretrievably broken down or the contents of the petition cannot be agreed upon), a trial to discern the difficult and complex questions of facts was ordered. This 10-day trial started on the 13^th June 1969, and concluded on the 27^th June 1969.

However, the legal aid certificate held by Mr McKenzie had been discharged prior to the trial taking place, at the end of 1968. As a result, Mr McKenzie represented himself as a LiP, and the firm who had been representing him via legal aid, freely provided a young Australian barrister by the name of Ian Hanger, to accompany Mr McKenzie and assist him with prompts through the proceedings given Mr McKenzie was now without legal representation in a complex defended divorce case.

Lloyd-Jones J., on finding out Ian Hanger represented the former solicitors of Mr McKenzie, told him that he must not take part in the proceedings, and this was understood by Ian Hanger that he was not to assist Mr McKenzie by prompting, and thus left the court.

At the end of the 10-day trial, Lloyd-Jones J. granted Mrs McKenzie a decree nisi on the grounds of cruelty, and dismissed Mr McKenzie’s claims of cruelty and adultery.

Mr McKenzie made an appeal on 5 counts:

Count 1.    the decision of Lloyd-Jones J. was against the weight of evidence.

Count 2.    that on the facts Lloyd-Jones J. ought to have found that the wife had committed adultery.

Count 3.    that Lloyd-Jones J. had been wrong in excluding Ian Hanger from assisting Mr McKenzie in the conduct of his case, thereby prejudicing Mr McKenzie in the conduct of his case.

Count 4.    that Lloyd-Jones J. had been wrong in holding that the evidence of the alleged co-respondent, Mr Joseph Graham, was uncorroborated.

Count 5.    that Lloyd-Jones J. has been wrong in disregarding a statement of a consultant psychiatrist from St. Giles Hospital contained in a report produced during the trial.

Decision:

All three Court of Appeal judges agreed that Mr Hanger’s presence and assistance to Mr McKenzie would also have assisted the court, and that Lloyd-Jones J. was wrong in stopping Mr Hanger from doing so.

The orbiter of Lord Tenterden C.J., from the case of Collier v. Hicks (1831) [1] was quoted by Davies LJ and Sachs LJ, in that “Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.”

It was also noted by Sachs LJ., that the longer the trial is, the greater the need of assistance to a LiP, and that no amount of assistance from the court, from the Judge or from opposing counsel can make up for the lack of a litigant having their own legal representation.

Sachs LJ stated clearly that it is in the public interest that LiPs have available aid when conducting their case. That includes having a friend by their side.

Mr McKenzie was successful on appeal for count 3, and a re-trial under a different Judge was ordered by an unanimous decision on counts 1 and 2. All other counts were dismissed.

What happened next?

This case certified the pressence and the role of a McKenzie Friend. This allows people who are self-representing to be supported and assisted in court. This friend does not have to be legally trained, and the friend can assist with things such as understanding legal jargon and the preparation of necessary documents. However, a McKenzie Friend cannot speak for their party in court, and that any advice offered is unregulated and does not have professional accountability.

Case references

[1] Collier v Hicks 109 E.R. 1290, [1831] 6 WLUK 42

Case law links:

LexisLaw (account required)

https://plus.lexis.com/uk/cases-uk/mckenzie-v-mckenzie-1970-3-all-er-1034/?crid=272316b3-8140-4333-a9cb-c95e34940fe8

WestLaw (account required)

The case of Caparo Industries Plc v Dickman (‘Caparo’) [1] caught my attention whilst studying Unit 6 of my Tort module when the module stated, “the facts of Caparo do not particularly matter for the purpose of this section” (The Open University (“OU”) 2024a, negligence).

As much as I understand the aim was for me to learn about the three-stage negligence test that came about as a result of the Caparo ruling, reading that the specifics did not matter, peaked my interest.

So here, for my January 2025 case summary, I aim to answer my own question: Caparo – what was it all about?

Citation: Caparo Industries Plc v Dickman [1990] UKHL 2

Court: House of Lords

Date: 8^th February 1990

Procedural History: Court of Appeal, 29^th July 1998, in front of Lord Justice O’Connor, Lord Justice Bingham and Lord Justice Taylor.

Dissenting opinion – Lord Justice O’Connor.

Judges: Lord Bridge of Harwich, Lord Roskill, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle

Legal Issues:

The tort of negligence.

Concurring opinions:

Lord Bridge of Harwich

Lord Roskill

Lord Ackner

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

Dissenting opinion:

None

Facts:

A firm of chartered accountants appealed a Court of Appeal ruling that they owed a duty of care to shareowners when preparing an auditor’s report, which was required of them by statute.

Caparo Industries Plc (“Caparo”) had purchased shares of a public company named Fidelity Plc (“Fidelity”) as part of a takeover bid. Caparo had purchased more shares upon the release of the auditor’s report.

By 23 October 1984, Caparo owned 91.8% of Fidelity shares.

However, following this, the auditor’s report was subsequently found to have been colourful, having painted a false picture of Fidelity’s profits, and rather than the expected pre-tax profit of £1,300,000, Caparo instead made a loss of over £400,000.

Caparo took action on the 24 July 1985 for shares that were purchased after 12 June 1984, against two of Fidelity directors, claiming the overvaluations had been made fraudulently, as well as against the chartered accountants, who Caparo claimed were negligent in certifying Fidelity’s audits and accounts.

The appeal to the House of Lords, followed a Court of Appeal ruling that the chartered accountants owed a duty of care to existing shareholders but not potential investors.

Both sides made ‘with leave’ appeals to the House of Lords.

The chartered accounts appeal was that they owed no duty of care to either the shareholders or potential investors due to a lack of proximity between the two, and Caparo’s cross-appeal was that there was a duty of care to potential investors.

Decision:

Lord Bridge of Harwich concluded that an individual shareholder, as a purchaser of additional shares made in the reliance of the auditor’s report, is in no different position as to any other investing member of the public, who the auditor owes no duty to. He would allow the appeal and dismiss the cross-appeal.

Lord Roskill and Lord Ackner also agreed in allowing the appeal and dismiss the cross-appeal.

Lord Oliver of Aylmerton stated that the audit was nothing more than a statutory obligation as required by the Companies Act 1985 [2]. Lord Oliver of Aylmerton went on to explain the reason and function of the audit was to protect the company and provide information to those who are entitled to receive it so that they can act accordingly. He explained that the audit was not for individual speculation with a view to profit and agreed with Lord Justice O’Connor (when the case had been before the Court of Appeal) that the duty of care is to the shareholders as a whole, not individually. He also did not agree that the scope of duty needed to include loss by an individual, when Caparo were relying on a supplied audit that was not intended for them. He agreed to allow the appeal and dismiss the cross-appeal.

Lord Jauncey of Tullichettle concluded the judgment by stating that a company may, at the time of an audit being prepared, be vulnerable to a takeover bid but that does not create a relationship of proximity between the auditor and whoever the successful bidder may ultimately be. The auditor is under no statutory duty to any bidder as the auditor will not know who the bidder is, nor the terms of the bid, and he agreed to allow the appeal.

What happened next?

The chartered accountants were successful in their appeal with costs, and Caparo were unsuccessful in their cross-appeal with costs.

The judgments from Lord Bridge of Harwich, Lord Roskill, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle created a new three-part test which superseded Donoghue (‘Donoghue’) [3].

·         that a duty of care exists

·         that the duty of care has been breached

·         that the damage is both a direct and foreseeable consequence of the breach.

However, the more recent judgment of Robinson (‘Robinson’) [4] means that Caparo is no longer the leading case on negligence, however it is still good law that can be used.

The use of the Caparo test will be decided on a case-by-case basis. If the case is something completely new or novel, then it will be the Caparo test.

Otherwise, the original Donoghue “neighbour principal and reasonable foreseeability” test will apply for cases that are either:

a) a category of liability that has previously been recognised by law (an established duty) or

b) whether a similar established duty is found from previous cases that are similar enough to the new case, so that judges can extend those decisions to the present case.

What impact this decision will have on cases going forward remains to be seen but given that the Robinson decision has been handed down from the Supreme Court, it is going to take a very unique case indeed, for the negligence test to be challenged again.

Development of negligence timeline:

1) Donoghue v Stevenson [1932] AC 562

2) Caparo Industries plc v Dickman [1990] UKHL 2

3) Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4