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November 2019

Supreme Court

Non-party costs: insurance companies. Judgment was handed down in XYZ v Travelers ­on 30 October. The Supreme Court overturned a costs order made against Travelers in the PIP breast implant litigation. The decision gives guidance on the circumstances in which it is appropriate to make a non-party costs order, particularly against liability insurers, under section 51 of the Senior Courts Act 1981. DWF's Mark Whitaker and Stephen Winterton acted for Travelers. 

Solicitors' negligence: measure of loss. On 20 November judgment was handed down in the solicitors' negligence case of Edwards v Hugh James Ford Simey (a firm) concerning a settlement under the VWF compensation scheme. The Supreme Court found that the court should not have admitted evidence which was obtained after the date of settlement of the original claim when determining whether the claimant had suffered loss. Read more in our update this month Supreme Court considers the hot topic of "Loss of Chance" in professional negligence claims

Michaelmas Term Hearings 1 October to 20 December 2019

See also Supreme Court sittings

Vicarious liability: data leak. The appeal in Various Claimants v Wm Morrisons Supermarket was heard on 6 & 7 November 2019. The issues are:
1.Whether the Data Protection Act 1988 (‘the DPA’) excludes the application of vicarious liability to a breach of that Act, or for misuse of private information or breach of confidence,
2.Whether the Court of Appeal erred in concluding that the disclosure of data by the appellant’s employee occurred in the course of his employment, for which the appellant should be held vicariously liable.

Arbitration: impartiality. The appeal in Halliburton v Chubb Bermuda Insurance Ltd & Ors will consider the question of when an arbitrator should make disclosure of circumstances which may give rise to justifiable doubts as to his impartiality.  The hearing took place on 12 & 13 November 2019.

Vicarious liability: sexual assault. The issue in Various Claimants v Barclays Bank Plc is whether a defendant employer is liable for sexual assaults committed by a medical practitioner in the course of medical examinations carried out at the employer’s request either before or during the claimant’s employment. The hearing took place on 28 November 2019.

Clinical negligence: damages. In XX v Whittington Hospital NHS Trust the issue is whether the respondent can recover damages for expenses of surrogacy arrangements which she intended to make in the UK or elsewhere. Whether it is correct to differentiate between "own egg" and "donor egg" surrogacies in awarding damages for such surrogacy expenses. The Court of Appeal held that she was entitled to recover the damages. The hearing is due to take place on 16 & 17 December 2019.

Permission to appeal. The permission to appeal applications list for June to August 2019 was published on 3 October. Cases of interest where permission to appeal has been granted include:

  • Manchester Building Society v Grant Thornton UK LLP, an accountants' negligence case which looks at the information provider / adviser distinction in the SAAMCO principle and its application in professional negligence cases. Read more in our update on the Court of Appeal decision in January 2019.

  • Khan v Meadows, also concerning the SAAMCO principle. This is a clinical negligence case which concerns the extent of the losses for which a doctor is liable arising out of her breach of duty. See Court of Appeal judgment from October 2018.

Supreme Court cases awaiting developments. 

Below are cases which await further official developments following permission to appeal being granted:

  • Doughty Street Chambers reported in March that permission to appeal has been granted in Henderson v Dorset Healthcare University NHS Foundation Trust on the question of how the illegality defence operates in the law of tort. 

  • Stoffel & Co v Grondona a solicitors' negligence case involving mortgage fraud. Permission to appeal has been granted on ground only: whether the Court of Appeal erred in the application of the Patel v Mirza guidelines. Read more in our update on the Court of Appeal decision last year.

  • 7KBW reported in May that permission to appeal had been granted to MMI following April's Court of Appeal decision in Equitas Insurance Ltd v Municipal Mutual Insurance Ltd concerning the 'spiking' of mesothelioma claims in reinsurance claims. Chambers anticipate that the case will be heard in the first half of next year.

  • Permission to appeal has been granted in S&T (UK) Ltd v Grove Developments Ltd which concerns 'smash and grab' adjudications. Read more on the background in our update on the Court of Appeal decision in November 2018.

Court of Appeal

Procedure: legal professional privilege. The case of Addlesee & Ors v Dentons Europe LLP looked at the issue of legal professional privilege concerning the documents of a dissolved company. The appeal was heard on 23 July 2019 and in a judgment handed down on 2 October the Court of Appeal held that "legal advice privilege, once established, remains in existence unless and until it is waived".  Read more in this update from Hailsham Chambers who appeared for the successful solicitors.

Michaelmas Term Hearings 1 October to 21 December 2019

QOCS: mixed claims. An appeal in The Commissioner of Police of the Metropolis & Anor v Brown was heard on 3 October 2019. At the previous hearing Mrs Justice Whipple held that in mixed claims (claims arising out of a cause of action for both compensation for personal injury as well as non-PI damages) the court does have discretion to disapply qualified one way costs shifting (QOCS) protection. In a judgment handed down on 18 October the court gave guidance on the treatment of QOCS in mixed personal injury claims.  Read more in our update Court of Appeal guidance on QOCS in mixed claims

Fixed costs: counsel's fees. An appeal in Cham (by their Litigation Friend Laura Martin) v Aldred was heard on 8 October 2019. In a judgment handed down on 25 October the Court of Appeal held that in a child's claim falling under the fixed costs regime in Section IIIA of CPR 45 counsel's advice fee was not recoverable as a disbursement in addition to the fixed costs. Read more in our update Court of Appeal judgment on recoverability of disbursements in ex-portal claims (CPR r.45 Section IIIA)

Construction: insurance. An appeal in Manchikalaparti & Ors v Zurich Insurance PLC & Anor (aka Zagora Management Ltd & Ors v Zurich Insurance plc & Ors) took place on 15 October 2019 and now awaits a reserved judgment. This is a complex case about a development of two blocks of flats in Manchester which due to serious defects, in particular in relation to fire safety, made the flats inhabitable. As a result, claims were made against the defendant insurer, relying on building warranties and against the building inspectors. Read the first instance judgment here.

Holiday sickness: contempt. An appeal in Jet 2 Holidays Ltd v Hughes & Anor took place on 22 October 2019 and judgment was handed down on 8 November. The issue was whether the making of false statements (verified by a statement of truth) concerning holiday sickness, served before proceedings were commenced engaged the contempt jurisdiction. The Court of Appeal found that it did. Read more in our update False statements of truth made pre-litigation can give rise to contempt

Personal injury damages: future loss of earnings. An appeal in Irani v Duchon took place on 23 October, 2019 and in a judgment handed down on 6 November the Court of Appeal gave a useful reminder of the issues that the court will take into account when considering claims for future loss of earnings. Read more in our update Future loss of earnings: Court of Appeal rules on appropriateness of Blamire award

Fixed costs or standard basis: Part 36 & consent orders. Where in a personal injury claim subject to the fixed costs regime, the claimant had accepted a Part 36 offer but the parties had signed a consent order agreeing to reasonable costs on the standard basis, the judge on appeal held that the consent order trumped the fixed costs. An appeal in Adelekun v Lai Ho took place on 31 October 2019 and in a judgment handed down on 19 November, the Court of Appeal overturned that decision and held that fixed costs applied. Read more in our update Costs: Court of Appeal quashes latest attempt to escape fixed costs

Noise induced hearing loss: no evidence of noise surveys. At the last hearing in Mackenzie v Holliday Hall ltd & Anor (aka Mackenzie v Alcoa Manufacturing) Garnham Joverturned a first instance decision dismissing the claimant's claim for noise induced hearing loss. He held the judge had incorrectly distinguished Keefe v The Isle of Man Steam Packet Company Limited (2010). Applying Keefe, the absence of noise surveys being produced or an explanation as to why they were not produced, coupled with a benevolent interpretation of the claimant's evidence would have resulted in a conclusion that "the likelihood was that the claimant was exposed to tortiously high levels of noise". The defendant's appeal took place on 6/7 November 2019 and judgment is due to be handed down on 29 November.

Tort: acts of third parties. An appeal in Kalma & Ors v African Minerals Limited & Ors is due to take place on 10 or 11 December 2019. At first instance Turner J held that the claimants had not established liability against the defendant mining company for the injuries they sustained following events which unfolded in Tonkolili, a remote and inaccessible district in the North of Sierra Leone.

Historic abuse claims. The case of FZO v Adams & London Borough of Haringey concerns a historic abuse claim. Over two judgments handed down in December 2018 and May 2019 Cutts J made determinations on issues of limitation, consent, vicarious liability, causation and quantum resulting in an award to the claimant of over £1 million. The defendants' appeal is listed for 17 December 2019.

Hearings in 2020

Property damage: insurance. The claimant in Sartex Quilts & Textiles Limited v Endurance Corporate Capital Limited made claims under an insurance policy after a fire damaged their buildings and destroyed their plant and machinery. The dispute arose out of the basis of indemnity and whether in the absence of having reinstated the business, the claimant should be indemnified on the basis of reinstatement or by reference to the market value of the buildings, plant and machinery. The appeal will take place on 21 or 22 January 2020. Read more in the first instance decision.

Professional indemnity insurance: non-party costs orders. In January this year, Foskett J made a non-party costs order against a solicitors' professional indemnity insurer under the Senior Courts Act 1981 s.51, in relation to a protracted group litigation claim. Even though as part of a separate agreement the insurer effectively ceded control of the litigation to the solicitors, this did not protect the insurer from a successful s.51 application. On causation, the insurer's funding of the defence materially increased the costs expended by the claimants, and the judge estimated that they had spent twice as much on pursuing their claims than they would have done if the insurer had not funded the defence of the claims in the way it did, and so ordered the insurer to pay half of the costs. An appeal in Various Claimants v Giambrone & Law (A Firm) & Anor is listed for 28 or 29 January 2020.

Costs: detailed assessment. The case of Ainsworth v Stewarts Law LLP will go to the Court of Appeal on 4 or 5 February 2020. As Robin Dunne of Hardwicke Chambers who appeared at the last hearing on behalf of the defendant explained on Twitter the case concerns points of dispute which were struck out for not being detailed enough. The court will also consider whether Precedent G applies to solicitor/client assessments at all.

Catastrophic injury: accommodation claims. At a personal injury assessment of damages hearing last year in Swift v Carpenter, the judge considered herself bound by Roberts v Johnstone in relation to the quantification of accommodation claims, and given the current negative discount rate made no award. The appeal on 23 July was highly anticipated in light of the newly announced negative discount rate -0.25%. However, in response to the claimant's application to adduce further evidence the Court of Appeal took the opportunity to adjourn the matter to consider the wider implications. Read more in this update from Richard Viney of 12 KBW, who appears in the case for the defendant. The appeal has been fixed for three days beginning 24 March 2020, and expert evidence has been allowed in four disciplines: IFA, chartered surveyor/valuer, economist and actuary.

Court of Justice of the European Union (CJEU)

Package holidays: vicarious liability. An appeal in X v Kuoni Travel Ltd was heard in the Supreme Court on 1 May 2019. The case concerns the extent to which a tour operator can be liable for a sexual assault carried out by an employee of one of its supplier hotels, and the appeal considered issues around breach of contract and/or Reg 15 of the Package Travel, Package Holidays and Package Tours Regulations (SI 1992/3288). In a judgment handed down on 24 July, the Supreme Court decided to refer two questions to the Court of Justice of the European Union concerning the Directive implemented by the above Regulations, specifically in relation to the question of whether any liability of Kuoni is excluded. The reference was made on 30 September and you can see the questions referred here. We await further developments.