Burden of Proof and Adverse Inferences

July 23rd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In 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 QC in Judicial Control, Liability and Litigation

The above Bill has been published on 21 July 2021. It will not be debated in Parliament until the Autumn.

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Liquidated Damages for Delayed Contractual Performance

July 21st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In 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.

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Restitution

July 12th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The 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.

 

Unlawful Means Tort

July 6th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In SoS for Health v Servier (2021) UKSC 24 a seven Justices Supreme Court holds that it is a requirement of the unlawful means economic tort that the unlawful means must have affected the third party’s freedom to deal with the claimant, the dealing requirement.

 

Injunctions

July 1st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Valbonne Estates v Cityvalue Estates (2021) EWCA Civ 973 concerns the proper exercise of the Court’s discretion to continue an interim injunction or to re-grant it notwithstanding serious non-disclosure by the applicant when seeking the interim injunction on a without notice basis. At para 47 and following the Court of Appeal sets out the relevant principles. There are no hard and fast rules which must be applied. The Court should take into account all relevant circumstances.

Where there are breaches of the duty of full and fair disclosure on a without notice application, the general rule is that the order should be discharged and the Court should refuse to re-grant it. That is the starting point, especially if the non-disclosure/inaccurate representations are neither inadvertent nor accidental.

 

Economic Loss

June 18th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Manchester Building Society v Grant Thornton (2021) UKSC 20 is concerned with the scope of the duty of care in negligence in relation to the recovery of damages for the economic loss, and the liability of professional advisers. One looks to see what risk the duty was supposed to guard against and then look to see whether the loss suffered represented the fruition of that risk. The focus should be on identifying the purpose to be served by the duty of care assumed by the advisers.

 

Calculation of Limitation Period

May 21st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The issue in Matthew v Selman (2021) UKSC 19 was whether, where a cause of action accrues at, or on the expiry of the midnight hour at the end of a day, the following day counts towards the calculation of the limitation period. The Supreme Court holds that, in a midnight deadline case, such as an action brought in tort, contract or breach of trust, subject to respectively Sections 2, 5 and 21 of the Limitation Act 1980, there is a complete undivided day following the expiry of the deadline, which should be included when calculating the limitation period. This is different from the situation where a cause of action accrues part-way through a day, and the general rule excludes that day for limitation purposes.

 

Systemic Unfairness

April 15th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

A rule, administrative system or policy is unlawful if it gives rise to an “unacceptable risk of unfairness”. The threshold however is a high one. It requires showing unfairness which is “inherent in the system itself”, not just the possibility of aberrant decisions and unfairness in individual circumstances.

In MR v SoS (2021) EWCA Civ 541 it is held that, where there is systemic unfairness, it is not an answer to say that Judicial Review is available to correct unfairness in any single case. Nonetheless the important distinction must be maintained between adjudicating in cases, which is for the Courts, and determining policy, which is not.

 

Duty of Care

March 30th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Anchor Hanover Group v Oxfordshire County Council and Others (2021) EWHC 543 (TCC) O’Farrell J at para 59 stated principles as follows: (1) Local and other public authorities do not owe any duty of care at common law simply by exercising their statutory duties and powers; (2) The absence of a duty of care extends to advice given as part of the exercise of such duties; (3) However, a common law duty to protect from harm may arise, where the principles applicable to a private party would impose that duty; and (4) Such cases include where there is an assumption of responsibility.