Legal News

Commercial and Interregional Card Claims I Ltd v Mastercard Incorporated [2024] CAT 3 The Competition Appeal Tribunal ( CAT) concluded that litigation funding arrangements are not damages‑based agreements ( DBAs) where the funder’s remuneration is calculated as a multiple of the finance advanced, rather than as a share of any damages recovered, reflecting a different model from that considered by the Supreme Court in PACCAR. On that basis, such funding terms were held to be enforceable for applications seeking both opt‑in and opt‑out collective proceedings orders in the case referenced above. The CAT’s reasoning mirrors its earlier ruling in the Sony matter ( Alex Neill Class Representative Ltd v Sony Interactive Entertainment Europe Ltd and another company [2023] CAT 73), which likewise determined that a multiple‑based return does not amount to a DBA— even if, as in the present case, the funder’s...

Lunn v Antarctic Logistics Centre International ( Pty) Ltd [2023] EWHC 2856 ( KB) What are the practical implications of this case? This ruling examines, among other issues, the position of a claim form once the four‑month period of validity set by CPR 7.5 has elapsed in a case where the defendant is outside the jurisdiction. Before Master Thornett it was argued that the court’s annotation on the claim form—‘not for service out of the jurisdiction’—meant the form became invalid after four months. That submission rested on what has now been identified as a misinterpretation of American Leisure Group Ltd v Garrard [2014] EWHC 2101 ( Ch). The court confirmed that, where the intention throughout is to serve the claim out of the jurisdiction and, as here, the defendant’s stated address for service is abroad, the claim form’s validity does not expire at the end of the...

Jagger and others v AXA Insurance UK plc [2023] Lexis Citation 1661 What are the practical implications of this case? The DCP is restricted to claims for 'damages only'. In this case, the claimants sought a declaration of AXA's liability. Although that was a step towards securing damages, such declaratory relief cannot be pursued through the DCP. A claimant must provide a robust estimate of anticipated damages. The claims were issued as 'limited to £10,000', then were substantially increased. The court held that, for CWI matters (and comparable technical claims), expert evidence is required to inform any estimate. In short, when bringing a technical claim, there must be a defensible basis—potentially via a suitably qualified expert—for the assessed value of the loss. Any amended claim form must be supported by a statement of truth......

In this edition: Psychiatric injury—secondary victims Public authorities and the state Occupational disease Damages Case management Costs Other PI and clinical negligence news Daily and weekly news alerts Useful information Psychiatric injury—secondary victims Supreme Court clarifies whether a person may pursue compensation for psychiatric harm after witnessing the death, or another shocking event, of a close family member caused by earlier clinical negligence. The Supreme Court has delivered judgment in Paul ( Appellants) v Royal Wolverhampton NHS Trust ( Respondent); Polmear ( Appellants) v Royal Cornwall Hospitals NHS Trust ( Respondent); Purchase ( Appellant) v Ahmed ( Respondent) [2024] UKSC 1. The appeals addressed whether a claimant can recover for psychiatric injury sustained from witnessing a loved one’s death or similarly horrifying occurrence which flowed from prior negligent clinical care, in such...

Baroness Lawrence of Clarendon and others v Associated Newspapers Ltd [2023] EWHC 2789 ( KB) What are the practical implications of this case? Although centred on misuse of private information, this ruling carries wider weight for would‑be claimants and defendants invoking, or resisting, a limitation defence under LA 1980, s 32. Limitation exists to promote finality in civil litigation; yet, as Nicklin J explained, section 32 (together with other statutory carve‑outs) tempers the harshness that a strict rule might otherwise produce (at [85]). Under s 32, where wrongdoing has been concealed, the clock starts only on discovery, or when discovery ought reasonably to have been made. The claimants contend they remained in the dark about the unlawful conduct for many years, learning only later-via information from private investigators-that they might have a viable claim. By contrast, ANL placed substantial emphasis on what was already...

HXA v Surrey County Council and another party [2023] UKSC 52, [2023] All ER ( D) 97 ( Dec) What are the practical implications of this case? The decision clarifies that, as a general rule, a local authority does not assume responsibility merely by carrying out its child protection functions in the course of its work. The Supreme Court nevertheless confirmed that an authority may, in the context of its social work activities, assume responsibility to shield a child from harm. Any such assumption is not confined to occasions where the authority has secured a care order in respect of the child concerned. It is also unnecessary to demonstrate particular reliance by the child on anything the authority said or did in order to establish that responsibility was assumed towards them. The judgment is therefore materially helpful to local authorities, and to their...

PI & Clinical Negligence weekly highlights—11 January 2024 In this issue: Supreme Court decision in Paul and another v Royal Wolverhampton NHS Trust Road traffic accidents Employers’ liability Occupiers’ liability Abuse and criminal injuries Fraud and fundamental dishonesty Regulation of healthcare professionals Brexit Useful information Daily and weekly news alerts Supreme Court decision in Paul and another v Royal Wolverhampton NHS Trust The Supreme Court has delivered its Judgment in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, addressing whether a person may recover for psychiatric harm after observing the death or another shocking event involving a close relative resulting from earlier clinical negligence. By a six-to-one majority, the court determined that, whilst doctors owe a duty of care to protect their patients’ health, they do not owe a duty to close family members to guard them from illness arising from witnessing a relative’s death or medical crisis caused by a condition...

The report Official Injury Claim has released its claims data report covering the period from 1 October 2023 to 31 December 2023...

Could AI tools be used to draft witness statements? The rule that statements must be recorded in a witness’s 'own words' makes it improbable that a witness could simply feed prompts into an AI platform and present the resulting text as their personal wording. Generative AI, by its essence, draws on innumerable bodies of writing, fusing and compressing them into prose that belongs to no single author. The product of such systems is, by design, not the voice of any particular user. In addition, PD 57AC requires (i) transparency about how the statement was put together and (ii) that it captures the witness’s own knowledge, raising doubts about how a court would view a statement created with AI support. Once drafting is automated, an intermediary stands between the witness and the text, severing the direct link from first-hand recollection to the eventual draft......

The UK Parliament has confirmed it will scrutinise the Automated Vehicles Bill...

Representative proceedings Representative proceedings are a potentially robust tool for class actions, as they can run on an ‘opt-out’ footing and are available for every cause of action across the board. By contrast, the Collective Proceedings Order regime, introduced in 2015, is likewise an ‘opt-out’ route but is restricted to claimants alleging breaches of competition law alone. Although representative proceedings have existed in English procedural law for centuries, they have lately attracted notable focus after the Supreme Court’s decision in Lloyd v Google [2021] UKSC 50, which clarified the circumstances in which the device is apt and set parameters for its proper use. Following that judgment, claimant law firms have moved to deploy representative proceedings (now set out in CPR 19.8) to advance claims on an opt-out basis, seeking damages on behalf of a class of claimants. Outcomes to date have been mixed. In Andrew...

The Competition Appeal Tribunal has allowed the entertainment giant to seek Court of Appeal review of its ruling permitting a consumer advocate to pursue a collective claim. The challenge will contest the tribunal’s finding that a revised funding structure for the case did not amount to a banned damages-based arrangement. While the tribunal considered Sony had no realistic prospect of overturning that conclusion, it held that clarifying the legality of agreements altered to sidestep the prohibition was a compelling basis to refer the issue to the appellate court. ‘ This is creating uncertainty and draining the tribunal’s and the parties’ resources, and that is unlikely to end until the Court of Appeal has reached a definitive determination on these matters,’ the tribunal stated. It sent the question to secure certainty over the lawfulness of amended agreements......

Getty Images ( US) Inc and other companies v Stability Al Ltd [2023] EWHC 3090 ( Ch) What are the practical implications of this case? General litigators will find here a clear illustration of the hurdles in obtaining summary judgment or a strike out where a claim rests only on inference. Getty pleaded primary copyright and database infringement on the footing that relevant UK acts could be inferred because Stability’s development team includes a substantial cohort of people living and working in the UK. Both parties put forward material for the hearing. Getty identified social media posts and You Tube videos consistent with the alleged conduct in the UK; Stability served seven witness statements, but these did not comprehensively set out the role of each UK-based team member or the computer systems they could use. The judge concluded there was: material arguably...

Mc Culloch and others v Forth Valley Health Board ( Scotland) [2023] UKSC 26 What are the practical implications of this case? In Montgomery v Lanarkshire Health Board [2015] AC 1430, the Supreme Court confirmed that doctors must take reasonable care to make sure patients are told about any material risks of a recommended treatment, as well as any reasonable alternative or variant treatments. It explained that the materiality of a risk is assessed, among other things, by asking whether a reasonable patient would attach importance to it. In Mc Culloch the Supreme Court clarifies that deciding whether an alternative is a ‘reasonable’ option lies within professional medical judgment, and is therefore determined by the Bolam approach—namely the test in Hunter v Hanley 1955 SC 200 and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The result is that patient choice has...

Facts Jackie Maguire, aged 52, had Down’s syndrome, a moderate learning disability, and cyclothymic personality disorder. She had resided in the care home from 1993. On 22 February 2017, she tragically died due to pneumonia, a perforated gastric ulcer, and peritonitis. After hearing the inquest evidence, the coroner ruled that the enhanced procedural obligation under Article 2 ECHR was not engaged, so there was neither a requirement nor a power to instruct the jury to reach an expanded conclusion. The jury therefore returned a brief Jamieson-style finding of natural causes. Court of Appeal Hill Dickinson’s article ' R ( Muriel Maguire) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 1232' explains the Court of Appeal’s view that her ‘total dependence’ under Do LS was not equivalent to state detention. It further confirms that a series of individual mistakes by healthcare...

Somoye (on his own behalf and as administrator of the estate of Oluyinka O Somoye) v North West Anglia NHS Foundation Trust [2023] EWHC 191 ( KB) What are the practical implications of this case? This judgment distils the key considerations guiding the court’s discretion when asked to allow a defendant to retract a pre-action admission of liability. It sets out the matters the court will weigh, offering a structured reminder of how such applications are approached in practice. The parties’ conduct, including any behaviour that prompted the admission in the first place The prejudice that may arise for either side if the admission is withdrawn, or if permission to withdraw is refused The likelihood of success (were the admission to be withdrawn) of the claim, or the relevant part of it to which the admission relates The outcome...

Re P (a child) (fair hearing) [2023] EWCA Civ 215, [2023] All ER ( D) 11 ( Mar) What are the practical implications of this case? Practitioners should acquaint themselves with the principles articulated by Lord Justice Peter Jackson from para [42] onwards of this judgment, where the Court of Appeal set out how adjournment requests should be approached to ensure proceedings are ‘fair’. Those principles are liable to apply across proceedings under the Children Act 1989 ( Ch A 1989) and the Adoption and Children Act 2002. Where an adjournment is sought, para [46] confirms that fairness is the essential touchstone, and the weight to assign to any given proposition or other pertinent consideration is for the court’s judgement in the individual case. The propositions gathered at para [45] provide a non-exhaustive, yet very useful, suite of factors that a court may weigh when...

Bastholm and others v Peveril Securities ( Dalton Park Retail) Ltd and others [2023] EWHC 438 ( Ch) Background The dispute concerned a demand for overage under a Payment Deed connected to the creation of a large designer outlet and retail centre at Dalton Park, County Durham. The Deed identified the ‘ Seller’ as five named individuals and set out a valuation process by expert determination, to be initiated by an application to the Royal Institution of Chartered Surveyors ( RICS). In 2014, those five applied to RICS seeking the appointment of an expert to assess the value of development said to have occurred in 2002. By that time, one of the five had been adjudged bankrupt and later discharged, and his Trustee in Bankruptcy was not included in the approach to RICS. The first defendant, who owned the relevant land, contended that the...

Honda Group- UK Pension Scheme Trustee Ltd and others v Mercer Ltd and another [2022] EWHC 3197 ( Ch), [2022] All ER ( D) 75 ( Dec) What are the practical implications of this case? In considering continuing breach, Mr Justice Trower distils the authorities confirming that a professional is generally under no obligation to return to a task once completed. Authorities include New Islington and Hackney Housing Association Ltd v Pollard Thomas & Edwards Ltd [2001] PNLR 20 at [14]–[20], Capita ( Banstead) 2011) Ltd v RFIB Group Ltd [2015] EWCA Civ 1310 at [19]), and PSGS Trust Corp Ltd v Aon UK Ltd [2022] EWHC 2058 ( Ch). As His Honour Judge Richard Seymour QC observed in Tesco Stores Ltd v Costain Construction Ltd [2003] EWHC 1487 ( TCC) at [270], in ordinary life a task considered...

What is the likely outcome going to be once the government e-scooter trials end? Following the Queen’s Speech, we anticipated e-scooters would appear in the Transport Bill, and Grant Shapps suggested privately owned models could be permitted on the roads. Yet, with the Conservative leadership contest ongoing, we will not know until early September 2022 who will be prime minister or transport secretary. We still expect private e-scooters to be legalised, but the detail must wait for the new government. Safe legalisation demands firm rules and protection for those injured by riders, ideally through compulsory third party insurance. Any framework should set clear standards, including: Maximum power Speed limits Lights and indicators The government must also determine how it will enforce any new rules, given current difficulties tackling illegal use of privately owned e-scooters. How will this affect personal injury claims...