Legal News

Day v Womble Dickinson ( UK) LLP [2020] EWCA Civ 447 What are the practical implications of this case? In essence, any action for damages for breach of contract or negligence that relies, as a necessary component, on pleading that the ultimate outcome of criminal proceedings would have been different and more advantageous to the claimant if the contract had been honoured or no negligence had occurred, is at risk of being struck out as an abuse of process in such circumstances. The proper route for a defendant, indeed, discontented with the result of a criminal case is to take up every opportunity to appeal the decision. In practice, only where an appeal overturns or varies the decision in the claimant’s favour will there be room for a viable civil claim asserting that the original outcome would not have been reached but for the...

Whittington Hospital NHS Trust v XX [2020] UKSC 14, [2020] All ER ( D) 05 ( Apr) What are the practical implications of this case? For those practising in clinical negligence, the ruling carries clear yet significant ramifications for day-to-day case assessment. In infertility cases, claimants may, in certain, defined situations, recover the expenses of commercial surrogacy by way of damages. Lawyers representing both claimants and defendants must now deepen their grasp of surrogacy law within the UK and in other jurisdictions, from a comparative perspective, to properly evaluate whether this category of loss is recoverable. This decision is a helpful starting point, with Lady Hale carefully guiding readers through the pertinent law in a complex area. For family practitioners, although the matter was a civil tort claim, Lady Hale’s judgment—among her final decisions on the bench—serves as a powerful critique of the current...

Andreewitch v Moutreuil [2020] EWCA Civ 382, [2020] All ER ( D) 108 ( Mar) What are the practical implications of this case? Two practical consequences emerge from this judgment. It converts the right to silence in contempt proceedings from a matter of principle to a mandatory procedural step. Every alleged contemnor, and particularly anyone without legal representation, must be cautioned that they are under no obligation to give oral evidence (para [16]). The right operates as a safeguard available to all, mirroring the position in criminal proceedings (para [8]). The ruling stresses the fundamental nature of that right. A failure to alert an alleged contemnor cannot be dismissed as a mere technical slip (para [17]); it is a procedural defect that may result in real injustice. That risk is amplified for litigants in person, irrespective of intellect or...

Bioconstruct Gmb H v Winspear and another [2020] EWHC 7 ( QB) What are the practical implications of this case? The ruling rekindles discussion about optimal methods for completing a closing with pre-executed pages, particularly where multiple parties and signatories are involved and where amendments or corrections are made to previously circulated written contracts. The court’s analysis, relating to a deed that was both signed and acted upon by the party seeking to rely on it, yet held invalid and unenforceable, underscores the need for caution when attaching pre-signed signature pages to deeds. In this respect, the judgment draws attention to a circumstance not expressly covered by the Law Society of England & Wales’ Practice Note, ‘ Execution of documents by virtual means’ (16 February 2010). That guidance identifies Koenigsblatt v Sweet as the leading authority on ratification for written...

The case is UK Acorn Finance Ltd v Markel ( UK) Ltd , case number CL-2018-000236, in the Queen’s Bench Division of the High Court of Justice of England and Wales. By an order made on 1 November 2019, High Court Judge David Waksman required Markel ( UK) Ltd to provide UK Acorn Finance Ltd with copies of policies issued to surveyors undertaking sub-prime work during 2012 to 2014. Markel is also obliged to disclose materials evidencing its decision-making process for underwriting those policies, particulars of any indemnity claims brought by sub-prime lenders, and a witness statement from its DAC Beachcroft lawyer, according to the......

Brown v Metropolitan Police Commissioner and another ( Equality and Human Rights Commission intervening) [2019] EWCA Civ 1724, [2019] All ER ( D) 124 ( Oct) What are the practical implications of the judgment? The meaning of the CPR 44 QOCS regime is now fixed: in mixed claims a trial judge may invoke the discretion in CPR 44.16(2)(b), and the mere presence of a personal injury head will not secure automatic costs protection. Permission to appeal to the Supreme Court was refused. Any further challenge is improbable, as the Court of Appeal—anticipating that prospect—went beyond what was strictly required to dispose of the appeal (see paras [60]–[70]), addressing access to justice, certainty and deterrent effect. A renewed appeal is also unlikely since, given the fact-sensitive, case-by-case nature of the discretion, it is difficult to see how the Court of Appeal’s guidance could be refined or...

Kensington Mortgage Company Ltd v Mallon and others [2019] EWHC 2512 ( Ch) What are the practical implications of this decision? In a recent claim for possession, the High Court dismissed an appeal against a county court’s refusal both to entertain a fresh contention first advanced by the defendant at trial and to permit a late amendment to pleadings to add that contention. The outcome is encouraging, confirming the judiciary’s resolve that litigants should know the case they must meet at trial. It equally underscores the original Civil Procedure Rules ethos of putting all cards on the table. Statements of case must be thorough, correct and precise. Simply setting out background narrative is not enough to found a legal case or allegation—the specific contention or allegation must be identified. Where a party wishes to raise a new issue or argument, it should apply to the court as...

Amending a claim to allege breach of confidence ( Slater & Gordon v Watchstone) Slater & Gordon ( UK) 1 Ltd v Watchstone [2019] EWHC 2371 ( Comm) What are the practical implications of this case? Two principal practical consequences follow from this decision: It serves as a caution for those involved in M& A deals or litigating about them. Although exploiting every route to gather intelligence on the other side may appear commercially astute, inviting the opponent’s corporate adviser to tacitly share confidential material is arguably unlawful and may leave participants exposed to a significant claim It also exemplifies the court’s pragmatic and constructive approach when major disclosure issues arise that warrant an amendment—if persuasive arguments emerge, the court will seek to accommodate them. The familiar disapproval of late amendments did not feature in the judgment, perhaps suggesting that......

Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 ( QB) Smith v Royal Liverpool Hospitals NHS Trust [2019] Lexis Citation 89 What were the background facts to the cases? Arksey v Cambridge University Hospitals NHS Foundation Trust The claimant experienced a sentinel bleed from a cerebral aneurysm at home and attended the hospital for assessment. The defendant NHS Trust accepted that sending her home, instead of admitting her, amounted to a breach of duty. The next day she suffered a major subarachnoid haemorrhage ( SAH), collapsed, and sustained permanent brain damage. In the High Court, she contended that, because the hospital had a pre-operative protocol for SAH patients awaiting placement of a coil in the aneurysm, she should have been admitted to the ward and that protocol implemented, comprising bed rest, blood pressure monitoring and appropriate hydration throughout the period of waiting for...

Colin Robert Parr v Keystone Healthcare Ltd and others [2019] EWCA Civ 1246 What are the practical implications of this case? The Court of Appeal confirmed, on established authority, that any advantage secured by a fiduciary while breaching his duties must be stripped and handed to the principal. Stripping that gain is neither compensatory nor restitutionary; instead, it is a sanction aimed at removing the benefit the fiduciary has wrongly acquired. Advisers should avoid confusing loss, or damages, with the accounting for profits required from a fiduciary who has acted in breach and earned money from that wrongdoing. The court also commented on the proper use of citations and warned of potential costs consequences where parties fail to observe the applicable Practice Directions. What was the background? Mr Parr and Mr and Mrs Ward held the shares in Keystone and also served as its...

Al- Najar (a protected party by her litigation friend) and others v Cumberland Hotel ( London) Ltd [2019] EWHC 1593 ( QB), [2019] All ER ( D) 116 ( Jun) What are the practical implications of the decision? The ruling in Al- Najar (a protected party by her litigation friend) and others v Cumberland Hotel ( London) Ltd mirrors recent decisions on tortious liability, reaffirming that a duty of care entails taking such steps as are reasonable, given all the circumstances, to guard against injuries that are reasonably foreseeable. Consequently, it should make no difference to how practitioners have been counselling their clients... What was the background? The first, second and third claimants were three women from a Middle Eastern family accommodated in two interconnecting rooms at the defendant’s sizeable, prestigious four-star hotel in central London. They, in common with many other Middle Eastern guests, decided to...

R (on the application of Z and another) v Hackney London Borough Council and another [2019] EWCA Civ 1099 What are the practical implications of this case? The merits of the judicial review were difficult to discern, as the claimant accepted on the evidence that the allegedly discriminatory policy was justified on the statutory basis in section 193 of the Equality Act 2010: it sought to prevent or redress disadvantage linked to being an Orthodox Jew, notably by supporting a secure community to counter anti‑ Semitism. The real interest of the judgment lies in the Court of Appeal’s firm backing of the Divisional Court’s decision (that court comprising two seasoned judges, one, as is customary, drawn from the Court of Appeal). The appellate court underlined that it is not there to rehear the case; it will interfere with...

Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another [2019] EWHC 1326 ( QB) What are the practical implications of the case? The practical effect of Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another is that summoning a third party to testify in a loss of chance claim does not, by itself, settle what would have occurred unless the court sees all pertinent material and the testimony is wholly reliable. In circumstances such as these—where the witness lacked credibility and there had not been full disclosure—the court dismissed the defendant’s submission that it should decide the likely result of the Moda– Mortar negotiations by applying the balance of probabilities. Consistently with Perry v Raleys Solicitors [2019] UKSC 5, [2019] All ER ( D) 59 ( Feb), the proper method was to...

Plevin v DAS Legal Expenses Insurance Company Ltd [2019] EWHC 1339 ( Comm) What are the practical implications of this case? Disputes over the reach of CFAs and after-the-event ( ATE) insurance are routine within inter partes detailed assessment proceedings. This matter is somewhat out of the ordinary because it concerns a quarrel between a claimant, her solicitors, and an ATE insurer—though, in substance, between the solicitors and the insurer—about the effect of a clumsily drafted CFA and policy of insurance. The ruling is not the first occasion on which issues of construction of the CFA and the insurance policy in this litigation have surfaced. During the detailed assessment before the Supreme Court that culminated in Plevin v Paragon Personal Finance Limited [2017] UKSC 23, Paragon mounted similar objections. The case stands as a cautionary illustration of the hazards of neglecting to reach clear...

Cathay Pacific Airlines Ltd v Lufthansa Technik AG [2019] EWHC 484 ( Ch), [2019] All ER ( D) 49 ( Mar) What are the practical implications of the judgment? The ruling in Cathay Pacific Airlines Ltd v Lufthansa Technik AG carries notable practical consequences for claimants thinking of starting proceedings under CPR 8. Where a party is minded to proceed under CPR 8 for a claim that could instead be issued via CPR 7, the following should ordinarily occur: notify the intended defendant that CPR 8 is being considered give a short rationale explaining why, on the facts of the case, CPR 8 is thought more suitable than CPR 7 send a draft articulation of the exact issue or question the claimant proposes the court determine under CPR 8, inviting the defendant’s comments set out any agreed facts bearing on that issue or...

WH Holding Ltd and another company v E20 Stadium LLP [2018] EWCA Civ 2652, [2018] All ER ( D) 17 ( Dec) What are the practical implications of this case? The decision carries significant consequences across commercial litigation, particularly matters where board minute records, litigation-related emails, or other confidential or off-the-record exchanges sit at the heart of the dispute. It reshapes practitioners’ approach to disclosure and tightens the reins on attempts to hide unhelpful material behind vague assertions of privilege. Practically, the Court of Appeal’s ruling demands much closer examination of litigation privilege by contentious lawyers. As a result, parties cannot automatically cloak minutes of internal meetings—where directors or staff debate commercial settlement—with litigation privilege if the conversation neither seeks evidence or advice for the case nor expressly or by necessary inference discloses the substance of legal advice. Put plainly, minutes of...

Catlin Syndicate Ltd & Ors v Weyerhaeuser Company [2018] EWHC 3609 ( Comm) What are the practical implications of this case? This judgment confirms that the English court is reluctant to set aside parties’ bargains to arbitrate, even when the arbitration clause is incorporated by reference from the underlying layer and sits uneasily alongside express dispute resolution wording in the policy. The ruling highlights the practical difficulties that arise where layered (re)insurance placements carry inconsistent dispute resolution provisions. Because such layered programmes are standard for major risks, brokers and contracting parties should scrutinise with care not only the dispute resolution language in the layer they subscribe to, but also any such terms imported from policies beneath the layer. What was the background? The claimants and......

Court considers failure to serve medical report in personal injury case ( Mark v Universal Coatings & Services Ltd and another company) Mark v Universal Coatings & Services Ltd and another company [2018] EWHC 3206 ( QB) What are the practical implications of this case? CPR PD 16, para 4.2 requires a claimant in a personal injury action to append to the particulars of claim a schedule detailing any past and anticipated expenditure and losses. Under para 4.3, if the claimant intends to rely on evidence from a medical practitioner, a medical report addressing the alleged injuries must be attached to or served with those particulars. The decision in Mark v Universal Coatings indicates that provisions which look mandatory across all personal injury claims may not be strictly enforced in more complex litigation. In such cases, the court may not insist on service of a medical report or a...

Average fine for data breaches doubles to £146,000 in just a year What is this development about? Average penalties issued by the ICO have risen to £146,000 ($185,888), up from £73,000 in the equivalent 12‑month period, research from RPC indicates. The aggregate value of sanctions increased by 24% to £4.98m, compared with £4m a year earlier. Richard Breavington, a partner at the firm, said the regulator is showing more bite and a readiness to echo public sentiment, noting that the necessary mindset and authority are in place and that there has been a marked shift. The GDPR took effect in May 2018 and permits fines of €20m ($22.7m) or 4% of annual global turnover, whichever is greater. Before May 2018......

Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited and another [2018] EWCA Civ 2006, [2018] All ER ( D) 05 ( Sep) For our earlier report on this ruling, see News Analysis: Privilege in internal investigations restored ( SFO v ENRC). What does this mean in practice? The Court of Appeal has brought welcome certainty to the scope of litigation privilege. It also marks an important ruling on legal advice privilege, advancing the troubled debate over who can amount to ‘the client’ for the purposes of that protection. At first instance, ENRC’s assertion of litigation privilege was rejected. The judge decided, among other matters, that a criminal prosecution was not reasonably in contemplation at the material time, because ENRC had not produced evidence showing it knew enough about its own potential misconduct to believe that a prosecutor would be likely to...