Legal News

Trentside Manor Care Home v Raphael [2022] EAT 37 What are the practical implications of this judgment? Privilege—procedure This ruling confirms that, where there is a live issue about whether documents attract privilege and must be disclosed, employment tribunals should refrain from making orders compelling disclosure to the opposing side’s representatives until privilege has been determined, and parties are not obliged to comply with any such orders in the meantime. This is because privilege, when it applies, protects the holder from having to reveal the contents of those documents to anyone at all. The EAT also noted that, in a privilege dispute, the proper procedural first step is for the party asserting privilege to provide a sworn statement setting out the basis of the claim and, without compromising the privilege, supplying as much precise information as can be given about the nature of the...

Thurrock Council v Stokes [2022] EWHC 1998 ( QB) What are the practical implications of this case? At paras [369]–[410], Nicklin J delivers a thorough survey of the authorities on injunctions under TCPA 1990, s 187B, providing a useful point of reference for practitioners. The judgment also explains the court’s methodology when considering such relief. Section 187B(2) empowers the court to grant whatever injunction it considers appropriate to restrain breaches of planning control. At [415], Nicklin J stressed that no injunction should be made against an individual unless the evidence justifies it and the court is satisfied the order is both necessary and proportionate. Although this may seem self-evident, a court will not make a wide, restrictive order without proof that it is required and balanced. In this case, Thurrock failed to establish either requirement. At [424], Nicklin J remarked that the best route to a...

Abbott and others v Ministry of Defence [2022] EWHC 1807 ( QB) What are the practical implications of this case? Practitioners acting for a cohort of claimants, each with distinct claims and fact patterns, should think carefully before placing the whole cohort on a single claim form. They must assess whether all claims can be conveniently resolved within one set of proceedings, considering both the size of the cohort and the extent of overlap between cases. A shared defendant and a handful of common issues will not, by themselves, justify a bulk claim form. Industrial disease actions featuring differing exposure periods and circumstances are particularly unlikely to be suitable for collective disposal in one action. Where any uncertainty exists, separate claim forms must be filed and individual court fees paid. This demands robust administrative processes to avoid missing limitation deadlines and brings...

Chadwick v R H Ovenden Ltd and another [2022] EWHC 1701 ( QB) What are the practical implications of this case? This ruling grappled with a host of thorny and complex questions arising from workplace accident claims. Owing to the breadth of the analysis, it stands as valuable reading for any practitioner dealing with personal injury litigation. Both the claimant and the second defendant maintained that they were working as employees. Consequently, the decision sets out a clear synthesis of the key, frequently applied criteria for distinguishing employment from self-employment. Because the first defendant disputed the existence of a duty of care, the judge examined in depth the circumstances in which a party who is not the employer may nonetheless incur liability by exercising a measure of control over the place of work. The court assessed the issues bearing on whether negligence had resulted in a...

Curtiss and others v Zurich Insurance plc [2022] EWHC 1514 What are the practical implications of this case? This ruling provides practical direction on when it is appropriate to pursue an order to strike out a trial witness statement for breaches of CPR PD 57AC, and the manner in which such an application should be advanced. For context, paragraph 5 of CPR PD 57AC underlines that the court retains its complete case management powers and full suite of sanctions, and may—either on application or of its own accord—strike out part or the entirety of a trial witness statement. Recent authorities have offered guidance on timing and proportionality: for example, in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 ( TCC) at [49], Mrs Justice O’ Farrell noted that although an application may properly be brought, it must not give rise to...

Litigation friend entitled to recover ATE premium from the child’s damages ( X (by way of litigation friend) v H& M Hennes and another) X (by way of litigation friend) v H& M Hennes and another [2022] Lexis Citation 102 What are the practical implications of this case? It is hard to envisage many situations where moving away from the baseline of proportionality and reasonableness would be justified (save, perhaps, where BTE exists). Notably, the issue that His Honour Justice Lethem considered to be of general significance has yet to receive attention from a higher court. Although the judge did not expressly decide the point, allowing a 44% deduction from damages strongly implies there is no barrier to exceeding the 25% referenced in CPR 21.12(1A)(7), and that the court may “order otherwise” where recovery of an ATE premium is in issue. That debate may, however, be...

Chelfat v Hutchison 3G UK Ltd [2022] EWCA Civ 455 What are the practical implications of this case? On the narrow issue, where a claimant intends to serve out of the jurisdiction without seeking permission, this decision confirms that the court is obliged to issue a claim form submitted without a Form N510 or equivalent notice. Lodging the claim form alone is sufficient, despite text of CPR 6.34(1) stating that ‘the claimant must—(a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction’. Turning to the wider point about substitute claim forms, the court adopted a generous interpretation of the phrase ‘as issued’ in CPR PD 7A, para 5.1—‘where the claim form as issued was received in the court office on a date earlier than the date on...

Colley v Motor Insurers’ Bureau [2022] EWCA Civ 360 What are the practical implications of this case? In practice, the ruling’s immediate impact is somewhat constrained because section 152(2) of the Road Traffic Act 1988 ( RTA 1988) has been amended, removing an insurer’s ability to sidestep liability under RTA 1988, s 151 on the footing of a later declaration entitling it to avoid the policy. The amendment applies prospectively only, from 1 November 2019, so any claims in respect of accidents occurring before that date will remain subject to the old wording (to which the decision in Colley will directly apply). Even so, the Court of Appeal’s approach to the insurance obligation under Articles 3 and 10 of EU Directive 2009/103 (the ‘ Codified Directive’) has consequences for personal injury road traffic claims going forward. The effect is that there are only very...

What are opt-out claims and why are they big business? The Competition Act 1998 ( CA 1998) was revised in 2015 to allow a representative opt-out action to be pursued. In essence, one individual may sue on behalf of every person within the jurisdiction who has suffered from unlawful anti-competitive conduct, and seek compensation for them (to be allocated afterwards). The potential headcount and the scale of any award can be staggering. In the case brought against Mastercard, the class comprises around 40 million people (all living UK-based adults who have ever purchased from a retailer that took Mastercard), and the sum demanded is about £14bn. Why are costs arrangements relevant? To secure a collective proceedings order—effectively the green light to advance the case—specified requirements in the CA 1998, the Competition Appeal Tribunal Rules 2015, the CAT Guide and the authorities must be met. First, there must be an...

Leave. EU Group Ltd and another v Information Commissioner [2022] EWCA Civ 109 What are the practical implications of this case? This decision distils the key considerations a court will weigh when deciding how to handle an appeal where one party is absent. In relation to appeals originating in the Upper Tribunal, it delivers a detailed examination of the scope of the Court of Appeal’s powers under the Tribunal Procedure ( Upper Tribunal) Rules 2008 ( TP( UT) Rules 2008), SI 2008/2698, and then tests whether the applicable thresholds are met on the facts, including whether the hearing was duly notified and whether proceeding serves the interests of justice. For appeals that do not come from the Upper Tribunal, the judgment confirms the court’s inherent jurisdiction to continue with an appeal despite a party’s non‑attendance. Finally, practitioners will welcome the court’s remarks on the...

Paul and another v Royal Wolverhampton NHS Trust and others [2022] EWCA Civ 12 What are the practical implications of this case? Before Paul, pinning down when a claimant could recover for a shocking event was problematic, as two Court of Appeal authorities— Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 and Taylor v A Novo ( UK) Ltd [2013] EWCA Civ 194—were difficult to reconcile. In Paul, the Court of Appeal determined that Taylor is controlling and that it requires the shocking event to be linked to the defendant’s breach of duty. That stance produces such manifest unfairness that the Court of Appeal has indicated it is minded to grant permission to appeal. Consequently, any claimant advancing a secondary victim claim affected by Paul would be well advised to defer issuing their......

Shah v Barnet London Borough Council [2021] EWHC 2631 ( QB) What are the practical implications of this case? Master Stevens’ judgment provides a clear demonstration of the considerations a court will apply when a defendant seeks to resile from a pre-action admission under CPR 14.1A. Its significance is not confined to personal injury claims. The Master’s thorough survey of the authorities and careful weighing of the factors in CPR PD 14, para 7.2 equips both claimants and defendants to assess the strengths of making or opposing such applications. The decision emphasises that a defendant must come armed with precise, persuasive reasons both for having made the admission and for wishing to withdraw it. The threshold for undoing a pre-action admission is high. Claimants will be reassured by the judge’s concern that attempting to resile after substantial investigation of quantum has been...

Building Design Partnership Ltd v Standard Life Assurance Ltd [2021] EWCA Civ 1793 What are the practical implications of this case? The Court of Appeal’s unanimous ruling in Building Design Partnership Ltd v Standard Life Assurance Ltd delivers three important and practical takeaways. The first concerns the manner in which a claim is pleaded. As a matter of pleading, the Court confirmed that, in principle, a case relying on sampling and extrapolation may properly be advanced on that footing. In this case, the court expressly determined that such a claim should not be struck out (and that summary judgment ought not be granted against the party advancing it) where it cannot be shown that the claim is bound to fail. In doing so, the court endorsed first-instance authorities permitting a case to proceed to trial when pleaded on an...

Brown v Fisk and others [2021] EWHC 2769 ( QB) What are the practical implications of this case? Master Dagnall’s ruling sits within an established stream of English and Scottish authority. It confirms, consistently with decisions over time at every level up to the Supreme Court, that the expression ‘road or other public place’—used repeatedly in road traffic legislation—cannot sensibly be extended to secure alignment with the Court of Justice ruling in Vnuk. The Master also explores the factors that require consideration, yet acknowledges the difficulty of reconciling the principal authorities with each other. Advisers supporting victims of ‘off‑road’ vehicle accidents, where the existence of insurance cover is uncertain or disputed, may find his detailed review particularly useful. What was the background? The claimant suffered injury after a collision with a Land Rover whilst members of the bonfire society were gathering jumble within a gated and fenced yard off a...

Ho ( Respondent) v Adelekun ( Appellant) [2021] UKSC 43 What are the practical implications of this case? This ruling carries particular practical significance when read alongside Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654, [2018] 1 WLR 6137. Cartwright established that a defendant may enforce costs only against the amount of any damages and interest ordered in the claimant’s favour, and not against money payable under a settlement, for example by Tomlin order or pursuant to Part 36. As the great majority of personal injury claims resolve by agreement, Adelekun has broad and important consequences for claimants, defendants and their representatives: a defendant will, in general, be able to recoup its costs only if, at trial, an order is made awarding damages to the claimant. Since proceeding to trial and then losing is usually the last outcome a defendant seeks, in...

Representative claim by and on behalf of insurance companies is properly constituted ( Royal & Sun Alliance Insurance plc and others v Textainer Group Holdings Ltd and others) Royal & Sun Alliance Insurance plc and others v Textainer Group Holdings and others [2021] EWHC 2102 ( Comm) What are the practical implications of this case? This decision stands as an unusual authority on CPR 19.3. The rule provides, in substance, that where a claimant pursues relief to which another person is jointly entitled with him, every person sharing that joint entitlement must be joined as a party unless the court directs otherwise. The court adopted a narrow construction, treating the provision as limited to situations involving a joint legal right to the remedy. It does not encompass cases where multiple parties hold several rights to relief and merely share a common interest in the outcome. In that...

ABC v The London Borough of Lambeth [2021] EWHC 2057 ( QB) What are the practical implications of this case? The practical effect of this ruling is that a claim form uploaded on CE-file can be treated as filed at the point of its initial upload and payment of the court fee, even if the document later had to be re-lodged owing to ‘procedural’ defects. The ruling is tightly confined. It applies where the claimant has obtained an anonymity order before filing the claim, and the claim form is not lodged with the application or the sealed order. It remains prudent for any party to file before the end of any limitation period. A claim form affected by ‘procedural’ defects may still be regarded as filed earlier. However, the judgment does not offer (and does not purport to offer) any further steer on which kinds of...

Maypole Dock Ltd v Catalyst Housing Ltd [2021] EWHC 1742 ( TCC) What are the practical implications of this case? This was a relatively unusual application, namely to curtail the continuation of an expert determination. While there are several reported decisions where injunctions were pursued to halt adjudications, and both parties relied on those authorities, the court had no difficulty distinguishing them, finding that different considerations arose here. In this instance, one party sought to uphold what it asserted was a contractual entitlement to an expert’s determination, whereas the other wished to engage the court’s jurisdiction. The suitability of an injunction in such circumstances is highly fact specific, yet ultimately falls to be decided in line with the established American Cyanamid principles... What was the background? The dispute originates from Catalyst Housing Ltd’s 2014 purchase of land and buildings in Southall from Maypole Dock Ltd. On...

Parker v The National Trust [2021] EWHC 1589 ( QB) What are the practical implications of this case? This decision reinforces a risk-led methodology when facing potential dangers that may or may not occur. The key question is the probability of the hazard—in this instance, a tree—inflicting injury or damage. A danger beside a path in a busy urban park carries a wholly different level of risk to one located where people rarely pass, for example within woodland. It was sensible for the defendant to run a regime that checked zones with the greatest footfall, such as the car park and play areas, more often, while quieter locations were inspected less frequently. That approach enabled the defendant to apportion resources efficiently and to prioritise remedial measures according to where risk was judged to be highest. In contrast, the court expressly rejected a...

EMFC Loan Syndications LLP v The Resort Group plc [2021] EWCA Civ 844 What are the practical implications of this case? This decision is significant for transactional lawyers and litigators: To ensure a contract reflects the parties’ intentions, state everything expressly. If a term is to be a condition or warranty, make that explicit; otherwise it is innominate. Interpret and draft by reading the agreement as a whole and checking whether clauses fit, or conflict with, the proposed construction. A construction that seems unfair or unreasonable may still stand: the test is not fairness but what, objectively, the parties are taken to have agreed. Any effective cause term is subject to special wording or indicators in the contract and will depend on the particular facts and terms of each agreement, by reference to ordinary principles of construction and implication. ......