I need to begin with a huge thank you to all the people who have supported Denise and the 122 CrowdJustice contributors who so generously helped her bring her case in the Supreme Court.
Denise won! Five Supreme Court judges unanimously upheld her appeal and decided there had been unlawful discrimination on grounds of marital status. This is the first time the Supreme Court has upheld a complaint of discrimination on grounds of marital status. Denise will now be entitled to a survivor’s pension. The judgment is also likely to lead to changes to rules which discriminate against cohabitees in many other pension schemes.
It was a long haul for Denise – and her determination was really inspiring to everyone who worked on her case. Her partner, Lenny McMullan, died in 2009. Not long afterwards, Denise was told that although it was accepted that she and Lenny had been in a long-term committed cohabiting relationship, she would not receive a survivor’s pension.
It was at this point her fantastic legal team in Northern Ireland got on board: her solicitor, Trevor McCallum, and barrister David Scofield QC. When the internal review and appeal procedures failed to change the decision, they helped Denise bring a judicial review claim in the Northern Ireland High Court. Denise won. However, her two much better resourced opponents appealed; and, by a two to one majority, the Northern Ireland Court of Appeal reversed the High Court’s decision.
I had been made aware of the High Court’s decision after Nikki Elmes got in touch with me in 2013. Nikki and her partner, David Smith, had cohabited for 21 years and had two children. Sadly, he died in 2011 and, like Denise, Nikki had been refused a survivor’s pension from the local government pension scheme because her partner had not filled in a nomination form. I helped Nikki initiate her own claim, which was then put on hold pending Denise’s.
When Denise lost in the Northern Ireland Court of Appeal, initially she thought this was the end of the road. In particular, in Northern Ireland no win no fee agreements with lawyers are not allowed, so she had incurred significant legal costs getting to the Court of Appeal. She had also risked losing her home; although, fortunately, the Court of Appeal took pity on her and did not require her to pay her successful opponents’ costs as is normally the case.
It was at that point that I agreed to help Denise – but to enable Denise to continue to the Supreme Court required a bit of ingenuity. Denise obtained a protective costs order from the Supreme Court to reduce her adverse costs risk. She instructed me on no win no fee basis, and with help from CrowdJustice and Nikki Elmes she was able to pay the necessary court fees.
However, the Attorney General for Northern Ireland then popped up and objected to Denise using English lawyers on a no win no fee basis. So before we could continue, we were very generously assisted by two barristers specialising in costs – Nicholas Bacon QC and Benjamin Fowler, both at 4 New Square. With their help, we successfully applied for an order from the Supreme Court which establishes that Northern Ireland litigants can get around the normal prohibition on no win no fee agreements by using English lawyers in Supreme Court appeals.
Our attention then turned to the main event: showing that there had been unlawful discrimination on grounds of marital status. Denise had her day in court on November 24th, 2016, with the excellent Helen Mountfield QC and Chris Buttler of Matrix Chambers presenting her case in court. You can watch the video of the hearing on the Supreme Court website. After a tense wait, Denise found out on 8 February 2017 that she had won.
There was considerable media interest in the outcome – some of which can be found here:
That interest reflects the fact that Denise’s success is very likely to lead to changes not only to the local government pension scheme, but to all UK public pension schemes and many private pension schemes as well. Given that there are 12 million UK public sector pension schemes and that 1 in 6 couples in the UK now cohabit, there are a lot of potential beneficiaries of Denise’s tenacity – and of CrowdJustice’s much valued help in enabling Denise to secure this very important victory.
Gareth Mitchell is a partner at Deighton Pierce Glynn.
See Denise Brewster's CrowdJustice case page here.
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