Legal News

Depp II v News Group Newspapers Ltd and another [2020] EWHC 1689 ( QB) What was the background? This ruling addresses an application by the defendants to the libel action, News Group Newspapers Ltd and another (collectively, NGN), to strike out Mr Depp’s claim on the basis of an alleged breach of an earlier ‘unless’ order concerning disclosure. In March 2020, the court had granted several of NGN’s disclosure requests. Among these was a direction requiring disclosure of documents already produced in a US libel hearing between Mr Depp and his former wife, Amber Heard, conditional on NGN providing Mr Depp with written confirmation from Ms Heard or her solicitors that she consented to such disclosure. For more on that decision, see News Analysis: Court partly grants disclosure application in Depp case ( Depp v News Group Newspapers Ltd). NGN...

Serafin v Malkiewicz and others [2020] UKSC 23 What are the practical implications of this case? Lessons from the unfair trial aspect include guidance for judges and practitioners on engaging with a litigant in person ( LIP). Judges owe duties, and lawyers have professional duties to the court. Working with LIPs can be challenging, exasperating and take considerable time—sometimes more so than dealing with overly combative solicitors. Clients may struggle to understand why you appear to ‘assist’ an unrepresented opponent. Yet justice demands that those without representation are treated with politeness and dignity, and are given at least basic assistance and direction to find their way through the court process. Only then can justice truly be achieved for all involved in the process as a whole. On the DA 2013, s 4 defence, the Supreme Court’s judgment sets out principles which, though not strictly...

CWD v Nevitt and others [2020] EWHC 1289 ( QB) What was the background? The decision concerned allegations by the first defendant that the claimant sexually assaulted her, and by the second defendant that he raped her later the same night. The first and second defendants are sisters; the third defendant is their brother. The allegations were reported to the police, but after enquiries they took no further action against the claimant. Before proceedings were issued, the claimant applied without notice for an interim injunction to restrain alleged harassment and misuse of private information. That application was refused, partly due to concern he was “cause of action shopping”, as his real aim seemed to be to prevent information he said was untrue. However, the court granted an anonymity order, permitting him to sue as “ CWD”, with the defendants anonymised too. He then issued and served a claim for...

Wright v Ver [2020] EWCA Civ 672 What are the practical implications of this case? This judgment addresses a significant issue under DA 2013, s 9. Section 9(2) states that, where a defendant is domiciled outside the UK, the EU or a Lugano Convention state, the courts of England and Wales have jurisdiction only if it can be shown that England and Wales is ‘clearly the most appropriate place to bring an action’ concerning the impugned statement. At first instance, the court refused jurisdiction (see News Analysis: Court rules on operation of section 9 of the Defamation Act 2013 ( Wright v Ver)) and determined that a two-step approach should be used when deciding whether England and Wales was ‘clearly the most appropriate place’. That approach required evaluating the character of the publication and its reach in each relevant...

Reid v Price [2020] EWHC 594 ( QB) What are the practical implications of this case? This decision is a helpful authority on quantifying damages for claims involving disclosure of private information, breach of undertakings, breach of confidence, and the misuse of private information. It addresses how compensation should be assessed across overlapping privacy-related wrongs. The principles articulated in the judgment merit close attention by practitioners advising on likely awards in comparable situations, particularly since, in Warby J’s own phrase, ‘the authorities are not very numerous’. Warby J held that Mr Reid succeeded on four distinct causes of action: breach of contract, namely breach of express undertakings provided by Ms Price in 2011 that the relevant material would not be revealed unjustified breach of Mr Reid’s confidence misuse of private information concerning Mr Reid breach of statutory duty under section 4(4) of the Data...

Man Ching Yuen v Landy Chet Kin Wong , First-tier Tribunal ( Property Chamber), 2020 (ref 2016/1089) What are the practical implications of this case? Every day, innumerable deeds are completed across the country. By virtue of section 1(3) of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989), a deed must be signed in the presence of a witness who attests the signing. Yet what amounts to presence? Could witnessing occur via Skype, Facetime, Whats App or similar platforms? In addressing that issue, the FTT indicated, without a definitive ruling, that, under present law, whether the phrase in LP( MP) A 1989, s 1(3) ‘in the presence of a witness’ can be met via video link admits more than one arguable view. The tribunal’s indication fell short of a determination, acknowledging that the statutory wording, as it stands, could...

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...

Wright v Granath [2020] EWHC 51 ( QB) What are the practical implications of this case? This matter concerns the operation of the lis pendens (‘related actions’) rule in Article 27 of the 2007 Lugano Convention, and, in particular, the proper criterion for assessing whether a libel claim issued in England and Wales involved the same cause of action as Norwegian proceedings seeking a declaration that the defendant to the libel claim was not liable to pay damages in respect of the publication impugned in the English suit. The court recognised that this was a novel point regarding the application of lis pendens to defamation. Most authority in this sphere deals with contractual disputes, and the claimant maintained it had no application here because of the parties’ ‘asymmetrical’ positions in a tort claim (addressed further below). Confirming that the lis pendens doctrine is not...

Words in credit report held to be not defamatory at common law ( Triaster Ltd v Dun & Bradstreet Ltd) Triaster Ltd v Dun & Bradstreet Ltd [2019] EWHC 3433 ( QB), [2019] All ER ( D) 71 ( Dec) What are the practical implications of this case? This case concerned an uncommon defamation claim arising from a credit report, which Triaster said implied its creditworthiness was poor. While recalling the near 200-year-old authority Whittington v Gladwin, that imputations of present or future insolvency are defamatory—and noting that case alleged not merely a risk but an inevitability—the court concluded, unsurprisingly, that most complained-of material simply reported fact. The only statement that was not factual was an expression of opinion. What was the background? Triaster, a provider of business process solutions, brought a defamation claim against the defendant ( Bradstreet), which supplies data analytics, credit reports and other...

Quinn Infrastructure Services Ltd v Sullivan and others [2019] EWHC 2863 ( Comm) What are the practical implications of this case? The decision turned predominantly on the particular facts and depended heavily on specialist opinion, yet it clearly flags points practitioners must watch carefully when counselling clients on arrangements. Loose, undocumented understandings can create difficulties if not properly recorded and memorialised. It further underlines the core rule that a party cannot recover for a loss it has not actually sustained. Lastly, it exemplifies the difficulties posed by so-called ‘blind alley’ efforts on prototypes that were never deployed or delivered, and, in practice, the task of assessing what amounts to a fair fee for work performed. What was the background? The claimant provided engineers to BT. The first defendant acted as a de facto director and was subsequently thereafter made managing director of the claimant’s telecoms arm. The second...

Al Sadik (also known as Al Sadek and Sadik) v Sadik [2019] EWHC 2717 ( QB); [2019] All ER ( D) 116 ( Oct) What are the practical implications of this case? This ruling is striking as one of the few authorities to grapple with DA 2013, s 9. It follows Wright v Ver earlier this year, only the second case to squarely address the wording and effect of that provision (see News Analysis: Court rules on operation of section 9 of the Defamation Act 2013 ( Wright v Ver)). In this dispute, the court examined how DA 2013, s 9 sits alongside CPR Pt 11—asking, in particular, whether a defendant who fails to use CPR Pt 11’s procedure to challenge jurisdiction thereby gives up the right to advance a jurisdictional objection under DA 2013, s 9. The court decided there is no such waiver. It...

Emagine Films Ltd v Mister Smith Entertainment Ltd and another company [2019] EWHC 2085 ( Ch) (30 July 2019) What are the practical implications of this case? This decision underlines how difficult it is to legislate for every eventuality in preliminary papers for complex deals, and how implied terms can be used to address unforeseen gaps. An unanticipated issue arose after the term sheet was signed: the producer declined to accept terms consistent with those originally contemplated. The problem did not lie in the term sheet anticipating further formal documentation; that feature did not, by itself, render the arrangement uncertain or ineffective. Rather, the difficulty stemmed from the producer’s refusal to agree to fundamental matters that both Mister Smith and Emagine had assumed would be accepted. In those circumstances, the court was willing to imply a term that brought the term sheet contract to an end. The...

What is FRT and which laws presently govern it in the UK? Are there any plans for regulation? FRT is a type of biometric identification that relies on facial characteristics, typically matching them with images in a database, to confirm someone’s identity (for example, e Passport gates at airports, spotting ‘persons of interest’ on a busy street, or identifying recipients of football banning orders at a football match). While implementations vary, the usual workflow starts by detecting and capturing a face, often from CCTV footage. A recognition algorithm then normalises the captured image—adjusting size, rotation and similar factors—so it aligns with the format of images stored on a database or ‘watchlist’ of known individuals. The normalised image is statistically compared with entries on the watchlist. If the similarity score set by the FRT operator meets the required threshold, a ‘match’ is registered between the...

What was the background? The claimant, Mr Fentiman, is the chief executive of Specialist Hygiene Solutions Limited ( SHS), which operates under the name Hygiene Solutions. The defendant, Mr Marsh, had previously been a customer of SHS. The libel action arose initially from four online posts authored by Mr Marsh on blogging sites, Twitter and Linked In. In the first of these publications, he alleged there had been an unlawful and cowardly cyber-attack on the whistleblower website deproxfraud.info and on his personal Facebook and Linked In pages, asserting that this had merely served to alert the NHS, Public Health England and the Health and Safety Executive to what he described as the grubby and unethical behaviour of ‘ Rick’ Fentiman and his ‘minions’ at Hygiene Solutions Ltd. Mr Fentiman pleaded that the natural and ordinary meaning of that post was that he was the person...

Yavuz v Tesco Stores Limited and another [2019] EWHC 1971 ( QB) What are the practical implications of this case? This uncommon slander dispute stemmed from a confrontation in a supermarket between a shopper and a member of staff. It underlines the hurdles a claimant faces in slander actions, where they must prove the exact words were spoken as alleged. Success therefore turns heavily on the quality of witness testimony. The court focused closely on witness assessment, reflecting Tugendhat J’s approach in Cambridge v Makin [2011] EWHC 12 ( QB), namely that credibility is best judged by how a witness’s account aligns with established facts and with their prior statements or conduct. Here, the claimant was not considered a compelling witness, whereas the assistant said to have uttered the defamatory words gave evidence in a calm and measured way. In addressing whether there was...

Morgan v Times Newspaper Ltd [2019] EWHC 1525 ( QB) What are the practical implications of this case? This decision addresses the test for assessing whether remarks about professional competence are defamatory. The defendant maintained that defamation of a person’s professional (or business) reputation requires an imputation of an habitual or entrenched trait, not a single episode of negligence or ineptitude. The court emphatically rejected that contention, explaining that one instance of incompetent professional work can harm reputation as much as a charge against overall competence—illustrated by a barrister whose performance in one case could be decisive. The judgment also offers a useful synthesis of the authorities in this area, including discussion and application of Skuse v Granada Television Ltd [1996] EMLR 278, together with consideration of various commentary on the topic. What was the background? This libel claim arose from an article published by the...

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Rochester v Ingham House Ltd [2019] EWHC 847 ( QB) Background Ingham House, run by the defendant company, is a residential care facility delivering support to older adults. Mrs Rochester (the claimant) was hired as a team leader at Ingham House and completed four shifts. According to the claimant, she voiced worries about the state of affairs at Ingham House and, during a discussion with the Deputy Manager, left her post with immediate effect. The defendant contends that the Deputy Manager challenged the claimant’s role in handing out medicines to residents and that, although she appeared to resign in that exchange, she was actually dismissed. The claimant reported matters concerning Ingham House to the CQC and informed the defendant of doing so. She asserts the defendant then emailed the CQC and referred her to the Disclosure and Barring Service ( DBS) in a bid to...

The swift expansion of Io MTs has delivered major advances in healthcare across the board, enhancing efficiency and elevating the quality of care provided to patients. Deloitte recently observed that the Io MTs market is projected to be worth USD158.1bn by 2022. Wearables, lifestyle gadgets and mobile health applications are steadily gaining traction with consumers of all ages. A broad selection of connected, intelligent health devices now exists, from smart watches, smart earplugs and smart glasses to activity trackers and other tools that help us keep tabs on our fitness. We are tracking our steps, heart rate, pulse, blood pressure and receiving prompts about when medicines should be taken on time. As with any product, the chance of malfunction or defect that causes personal injury or damage to property remains tangible. For connected technologies in particular, the legal position is...

Hewson v Times Newspapers Ltd and another [2019] EWHC 650 ( QB) Practical implications The ruling is noteworthy as the court spelt out the correct approach to the repetition rule, describing the matter as a textbook instance of how the rule should operate. That rule stops a report that relays an allegation from being held to bear a milder defamatory meaning than the original allegation would carry. Here, the pieces both included and recounted accusations made by others. The court emphasised that publications that simply repeat others’ claims will generally amount to a fresh publication of those claims. As to meaning, the consequence was that the re-publisher was treated as having ‘adopted’ the allegations, without any need for active or express adoption. On that footing, the court held the articles conveyed allegations of guilt. The court also unusually resolved the question of meaning without an oral...