LAW ENFORCEMENT COOPERATION : FREE FLOW OF DATA

March 18th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

The free flow of data between the UK and the EU of course remains vital not only for effective law enforcement cooperation but also for trade and economic relations. Notwithstanding partial Brexit, currently the transfer of criminal investigation and commercial data is based on an EU adequacy decision, the UK GDPR, the EU Law Enforcement Directive, and the EU Commission’s processes. However, the adequacy direction expires next year, and there may be a divergence between the EU and UK data protection regimes. The House of Lords European Affairs Committee, chaired by Lord Ricketts, has launched an Inquiry into EU-UK data adequacy possible challenges to the adequacy regime, the factors that will influence a future  EU adequacy decision, and the implications should that decision be negative. Written evidence is sought by 3rd May, and there will be public evidence sessions over the next 3 months, with a view to a Report by July 2024.

 

LIMITATION

March 15th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

When does time start to run for limitation purposes on interest on costs where the order is for costs to be assessed? Not until the costs are assessed and become due, payable and enforceable, say the Court of Appeal in DEUTSCHE BANK v SEBASTIAN HOLDINGS ( 2024 ) EWCA Civ 245.

 

PROCEDURAL CHANGES

March 15th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

There is a well-established general presumption that changes to procedure apply not only to future proceedings but also to pending proceedings. This is because a procedural change is expected to improve matters and support the better administration of justice. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. A litigant has no right to complain that procedure is changed during the course of litigation unless it causes unfairness or injustice.

How fairness determines such retrospective application depends on several factors. These include the value of any rights which the new rule affects and the extent to which that value is diminished or extinguished. Light may be shed by consideration of the circumstances in which the legislation was enacted.

The essential question in MELKI v BOUYGUES ( 2024 ) EAT 36, at paras 25-29 inclusive, was whether changes to the Employment Appeal Tribunal Rules applying to pending proceedings was so unfair that the that the words used in the statutory instrument cannot have been intended to mean what they might appear to say. That was simply that the new Rules came into force on a specified date, without any transitional provision. The Rules had been amended to improve the fairness and justice of consideration of incomplete Notices of Appeal. The previous Rules were amended as they were too rigid in cases of minor errors and led to potential unfairness. The new Rule was proposed to draw a better balance between parties.

Whether it be the EAT Rules or the CPR Rules, Rules change from time to time. Unless a transitional provision is included stating the opposite , or unless there is more than modest unfairness to the respondent, the new provision applies to all litigation from the date it is expressed to come into force. There is no absurdity about the test being different before and after that date.

 

MANDATORY ORDER

March 8th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In R ( HXN ) v Redbridge LBC ( 2024 ) EWHC 443 ( Admin ) the Administrative Court ruled that Section 42(2) & (6) in Part 3 of the Children and Families Act 2014 a duty on local authorities that maintained an Educational, Health and Care Plan ( EHCP ) to ENSURE that a child was provided with the special education provision specified in the EHCP. It is an ABSOLUTE and NON-DELEGABLE duty. There is no “ best endeavours “ defence. A MANDATORY ORDER may be made to enforce the authority’s performance of its statutory duty and bring its breach of duty to an end. The principles in R ( Imam ) v Croydon LBC ( 2023 ) UKSC 48, relating to an authority’s duty under housing legislation, applied 9 ( para 93 ).

 

DATA BREACH COMPENSATION

February 22nd, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

The mere infringement of a provision of the GDPR is not in itself sufficient to confer a right to compensation, but any person who has suffered damage as a result of an infringement of the GDPR has the right under Article 82, to receive compensation.  There have been a number of recent CJEU Judgments on Article 82, in Cases C-340/21, on Cyberattack Data Breach Liability, Case C-667/201, on Health Data Processing, Case C687-21, on Negligence in Data Handling, and Case C-456/22, on Thresholds of Non-Material Damage, where data subjects sought compensation for damage arising from the publication of their names, on the internet, by a Municipality, without their consent, as part of the Agenda for a Municipal Council Meeting.  As the Irish Legal News identifies, a number of conclusions may be drawn from these and earlier cases including that the right to compensation for damages for breach of the GDPR requires a claimant to establish an infringement of the GDPR, that he has suffered damage, and that there is a causal link between the infringement and the damage suffered; the fact of an infringement of the GDPR gives rise to a presumption that the technical and organisational measures adopted by the control/processor were insufficient, but that presumption can be rebutted by a data controller; the concept of damage is broadly interpreted, with no de minimis threshold; non-material damage may include a loss of control over personal data or fear about potential future misuse, but actual damage must be proven by a claimant; and the damages regime provided by Article 82 serves a compensatory function only, and does not have a punitive or deterrent function.

 

DAMAGES

February 14th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In tort a person owes a duty of care not to cause physical damage to another person’s property. If there is a breach of that duty there is a liability to pay damages. The measure of the damages is compensation for (i) the reduced value of the property and (ii) any financial loss consequent on the physical damage. The Supreme Court unanimously allows the appeal ARMSTEAD v ROYAL SUN ALLIANCE ( 2024 ) UKSC 6, and holds that a claimant in the tort of negligence can recover, as damages, the amount of a contractual liability that the claimant owes to a third party, when that contractual liability is incurred as a result of the defendant’s wrongful act in negligently damaging the claimant’s property. Such a loss is not “ pure economic loss “; and where the question is whether a loss is too remote from a tort, the burden of proof in respect of remoteness is on the defendant.

 

PROCEDURAL FAIRNESS

January 31st, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In Potanina v Potanin (2024) UKSC 3 the Supreme Court reaffirms that it is a fundamental rule of procedural fairness that , before making an Order requested by one party, the Judge must give the other party the chance to object. If, for some reason, it is not practicable to do this, the Judge must do the next best thing. If the Judge makes the Order that is to give the other party an opportunity to argue that the Order should be set aside, or varied. What is always unfair is to make a Final Order, capable of correction only on appeal, after hearing only from the party who wants the Order made.

 

DAMAGES

January 31st, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In EU law the Francovich/Factortame conditions for state, that is public authority, liability in damages include that the breach is “ sufficiently serious “. This applies for example to damages for breach of the Public Contracts Regulations 2015 and the Concession Contracts and Utilities Contracts Regulations 2016, implementing EU law There has been case law on what constitutes being “ sufficiently serious “, notably Energy Solutions v NDA (2016) EWHC 3326 (TCC) and (2017) UKSC 34. The post Brexit Procurement Act 2023, not implementing EU law,   contains no express requirement for a breach to be sufficiently serious. Does this mean that the requirement has gone? No, says Coulson LJ in Braceurself Ltd v NHS England (2024) EWCA Civ 39.

 

LEGAL PROFESSIONAL PRIVILEGE (LPP)

January 25th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

Sadeq v Dechert (2024) EWCA Civ 28 raises a number of important points of law about the scope of LPP, both litigation privilege and legal advice privilege, and the so called “iniquity exception” applicable to both, in a 243 paragraph Judgment, Popplewell LJ addressed, amongst other matters, the merits threshold test for the iniquity exception.

He said:-
“52. I start with a number of uncontroversial aspects of the iniquity exception. As is well-known, legal professional privilege encompasses both legal advice privilege and litigation privilege. Broadly speaking, legal advice privilege applies to communications between a lawyer and its client for the sole or dominant purpose of giving or receiving legal advice, and documents which would reveal the contents of such communications; litigation privilege attaches to communications between a lawyer and its client or third parties which are brought into existence for the sole or dominant purpose of use in the conduct of existing or contemplated adversarial litigation … Where legal professional privilege exists, it is inviolate: there is no balancing exercise to be undertaken between the interest in maintaining privilege and competing interests in disclosure of the communications … Legal professional privilege was described by Lord Hoffmann in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 18 [2003] 1 AC 563 at [7] as a fundamental human right, which the European Court of Human Rights has held is part of the right to privacy protected by article 8 ECHR.

53. There is a principle that privilege does not exist if the document comes into existence in relation to a fraud, crime or other iniquity… a claim for legal professional privilege does not apply to documents which have been brought into existence in the course of or in furtherance of a fraud …

54. The exception applies to criminal cases … and civil cases … It applies equally to legal advice privilege and litigation privilege…

55. The principle is not confined to fraudulent or criminal purposes, but extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice … Whilst formerly often referred to as the fraud exception, it is now most commonly referred to as the iniquity exception.

56. It is not confined to cases in which the legal adviser is party to, or aware of, the iniquity. The relevant iniquitous purpose is that of the client, or if the client is being used as a tool for the iniquity by a third party, that of the third party …

57. The principled juridical basis for the exception is that it is a necessary ingredient of legal professional privilege that the communication should be confidential; and that the iniquity exception applies where and because the iniquity deprives the communication of the necessary quality of confidence … It is therefore an exception in the sense of something which prevents the privilege arising in the first place, not an exception in the sense of a disapplication of existing privilege.

58. Communications between a lawyer and client, or with third parties, are confidential if they take place in the usual course of the professional engagement of such a lawyer, notwithstanding that the engagement may concern an iniquity. This is why the iniquity exception does not apply to the “ordinary run of cases” … Such privilege is not prevented from attaching merely because the solicitor is engaged to conduct litigation by putting forward an account of events which the client knows to be untrue, and which therefore involves a deliberate strategy to mislead the other party and the court. and to commit perjury … Accordingly the touchstone in distinguishing such cases from those where the exception applies is whether the iniquity puts the conduct outside the normal scope of such professional engagement or is an abuse of the relationship which falls within the ordinary course of such engagement …”

He continued, at paragraph 63:-

“63. I have reached the conclusion that save in exceptional cases, the merits threshold for the iniquity exception is a balance of probabilities test: the existence of the iniquity must be more likely than not on the material available to the decision maker, whether that be the party or legal adviser determining whether to give or withhold disclosure, or the court on any application in which the issue arises; and that in an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This, in my view, is what the cases speaking of a prima facie case have had in mind, and what is meant by a prima facie case in this context (whatever it may mean in other contexts).

64. That conclusion is dictated by principle and consistent with, and to some extent supported by … authorities at appellate level …

65. Application of the iniquity exception involves the balance of two competing public policy considerations. On the one hand, there are the policy considerations which underlie the existence of legal professional privilege …

68. On the other hand there is a strong public interest in iniquity being uncovered …

69. In the context of litigation, this is reinforced by the imperative of the parties being able to adduce before the court all relevant evidence so that the dispute is determined fairly and correctly. If relevant evidence is concealed, there is a risk of injustice …

72. … a test of anything less than a balance of probabilities would be inconsistent with principle. The test should … be whether the iniquity exists on the balance of probabilities on the material available to the decision maker, whether party, legal adviser or court, at the time the decision is made, save in exceptional circumstances …”

“108. The merits threshold for the existence of an iniquity which prevents legal professional privilege arising, whether legal advice privilege or litigation privilege, is a prima facie case, which means that on an assessment of the material available to the decision maker, whether that be the party or its legal adviser conducting disclosure, or the court, it appears more likely than not on a balance of probabilities that such iniquity exists. In an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This is subject to the proviso that there might exist exceptional circumstances which could justify a court taking the view that a balance of harm analysis has a part to play.”

 

JURISDICTION

January 23rd, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In Sullivan v IoW Council (2024) EAT 3 the EAT has held that an ET did not have jurisdiction to hear a whistleblowing claim brought by an external jpb applicant against the local authority . The applicant did not fall within the definition of “worker”.