Claimants wish to bring a claim against a Defendant for misuse of private information, breach of confidence and breach of the Data Protection Act. Should the Claimants be granted anonymity? Should they be permitted to withhold their names and addresses when issuing their Claim Form? This was the principle question in Various Claimants v IPSA (2021) EWHC 2020 (QB). Nicklin J at para 33 refers to the “fundamental rule” of the common law that proceedings must generally be held in public. At para 34 he states that Orders that a party to a civil claim be anonymised in the proceedings and reporting restrictions prohibiting identification are “derogations” from the “principle of open justice”. At para 36 he states that the authorities make clear that derogations from open justice can be justified as ”necessary” on two principal grounds: (1) maintenance of the administration of justice; and (2) harm to other “legitimate interests”. The application for anonymity was refused: para 46.
Restraint of Trade
July 23rd, 2021 by James Goudie KC in Decision making and ContractsIn Harcus Sinclair LLP v Your Lawyers Ltd (2021) UKSC 32 the Supreme Court holds that (1) In determining the legitimate interests of the promisee in a restraint of trade case account can be taken not only of the contract terms but also what the parties objectively intended or contemplated consequent on the contract; and (2) the Court’s supervisory jurisdiction with respect to a solicitor’s undertaking does not apply in the case of a LLP.
Burden of Proof and Adverse Inferences
July 23rd, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Royal Mail Group v Efobi (2021) UKSC 33 the Supreme Court holds that (1) the change in the wording of equality legislation by Section 136 of the Equality Act 2010 has NOT altered the burden of proof in discrimination cases where discrimination is alleged, and (2) whether any positive significance should be attached to the fact that a person, including an actual decision-maker, has not given evidence depends entirely on the context and particular circumstances and common sense, and not legal rules.
Judicial Review and Courts Bill
July 22nd, 2021 by James Goudie KC in Judicial Control, Liability and LitigationThe above Bill has been published on 21 July 2021. It will not be debated in Parliament until the Autumn.
Standards
July 21st, 2021 by James Goudie KC in StandardsIn R (Robinson) v Buckinghamshire Council (2021) EWHC 2014 (Admin) the Court reiterates that where a complaint against a local authority member of misconduct is by reference to what the member said and/or how he or she said it, and Article 10 of the ECHR is applicable, freedom of expression is important, and while that is so for everybody, it is especially so for elected representatives.
Dedication of Track as Bridleway
July 21st, 2021 by James Goudie KC in Environment, Highways and LeisureIn Garland v SoS for Environment etc (2021) EWCA Civ 1098 the Court of Appeal says that, in deciding whether the common law dedication of a right of way over land would constitute a public nuisance, as a matter of fact, there is no need of evidence of an actual specific accident or incident. The character of the route itself may justify the inference that the route is potentially dangerous to a section of the public.
Freedom of Expression
July 21st, 2021 by James Goudie KC in Human Rights and Public Sector Equality DutyIn McNally v Saunders (2021) EWHC 2012 (QB) summary judgment is granted to the defendant, an online blogger, in respect of a claim against him under the Protection from Harassment Act 1997. The claim was brought against him by a local authority’s Director of Public Health with the support of the authority. It concerns a series of personally critical blog articles and tweets. The Judge balances on the one hand the public interest in the Director being able to fulfil her role without being subjected to conduct which undermines her ability to do so, and on the other hand freedom of expression.
Liquidated Damages for Delayed Contractual Performance
July 21st, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Triple Point Technology v PTT (2021) UKSC 29 the Supreme Court considers general issues about a provision for liquidated damages under a contract and the function of liquidated damages. Parties agree a liquidated damages clause so as to provide a remedy that is predictable and certain for a particular event. There then does not have to be a potentially difficult and time consuming quantification of loss.
Recovery of Possession
July 12th, 2021 by James Goudie KC in Land, Goods and ServicesLambeth LBC v Grant (2021) EWHC 1962 (QB) concerns a claim by the Council as freehold owner of Clapham Common. Part of the Common has been occupied by individuals known and unknown. They have set up a camp. The camp has generated complaints from local residents. By this action the Council sought to recover possession of its land. It was held that the Council was entitle to an order for possession.
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Restitution
July 12th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationThe appeal in School Facility Management Ltd v GB of Christ the King College (2021) EWCA Civ 1053 addressed the question whether, in a claim for restitution of benefits conferred under a contract which was void as ultra vires one of the parties, the provider of the benefits must give credit for all benefits it received, notwithstanding that it has a change of position defence to any restitutionary claim for those benefits it received. The answer is : No.