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September 2019

Supreme Court

Non-party costs: insurance companies. In XYZ v Travelers ­­the issue is: where a liability insurer was contractually obliged to indemnify its insured against the costs of defending claims against it by third parties, in what circumstances is it appropriate to make an order pursuant to s.51 of the Senior Courts Act 1981, the effect of which is to impose on a liability insurer an extra-contractual liability to pay those third parties’ costs of bringing the claims? The hearing took place on 11 June 2019 and judgment is awaited.

Solicitors' negligence: measure of loss. In Edwards v Hugh James Ford Simey (a firm) the issues are: in what circumstances is the principle of full compensation engaged? and, to what extent should a court admit evidence which was obtained after the date of settlement of the original claim when determining whether a claimant has suffered loss? The hearing took place on 25 July 2019 and judgment is awaited.

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 is due to take place 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 will take 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 will take 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.

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. The case now appears in the published permission to appeal lists.

  • 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 has 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 judgment is due to be handed down on 2 October.

October Hearings

QOCS: mixed claims. An appeal in The Commissioner of Police of the Metropolis & Anor v Brown is listed for 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.  

Fixed costs: counsel's fees. Taylor Rose report on a case in which they are acting for the appellant in relation to "the allowance of counsel’s fees in Section IIIA fixed costs cases. The issue is whether counsel’s fees form part of the fixed costs or may be allowed as disbursements under CPR 45.29I(2)(h), which concerns disbursements arising due to a particular feature of the dispute." The appeal in Cham (by their Litigation Friend Laura Martin) v Aldred is due to take place on 8 or 9 October 2019.

Construction: insurance. An appeal in Manchikalaparti & Ors v Zurich Insurance PLC & Anor (aka Zagora Management Ltd & Ors v Zurich Insurance plc & Ors) is due to take place on 15 October 2019. 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.

Personal injury damages: causation. At an assessment of damages hearing following a severe leg injury sustained in an RTA, the judge rejected the defendant's argument of exaggeration, and accepted that the claimant's redundancy was caused or contributed to by his injuries, and that this also had an effect on his immigration status. An appeal in Irani v Duchon will take place on 22 or 23 October, 2019.

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 will take place on 30 or 31 October, 2019.

Hearings later in 2019/2020

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 will take place on 6 or 7 November 2019.

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.

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. We are keeping an eye on developments from the CJEU.