The duties and conduct of expert witnesses are the subject matter of Blackpool Borough Council v Volkerfitzpatrick Ltd (2020) EWHC 387 (TCC). In a construction dispute, concerned with design and build contracts for a new tram depot, the defendant contractor applied for orders that (a) the claimant should not be permitted to rely on the evidence of two of its experts (D and C) on the basis that they had shown a lack of independence and (b) the claimant’s claims should be struck out on the basis that without such expert evidence they were bound to fail.  The Judge held that D and C had not been guilty of any wrongdoing, and dismissed the application.

Read more »

The Court of Appeal in dismissing the appeal in Canada Goose v Persons Unknown (2020) EWCA Civ 303 has enunciated procedural guidelines applicable to proceedings for interim relief in protestor cases against “Persons Unknown”, at paragraph 82 of the Judgment, as follows:-

Read more »

In Addlesee v Dentons Europe [2020] EWHC 238 (Ch) concerns the iniquity exception to LPP. The applicable legal principles were summarised (paragraphs 28-35 inclusive) as follows:-

(1)       LPP does not attach to communications between lawyer and client if the lawyer is instructed for the purpose of furthering crime, fraud or iniquity;

(2)       Instructions given for such a purpose fall outside the ordinary scope of a lawyer/client relationship, and are an abuse of that relationship;

(3)       This exception from LPP may apply equally to communications after the wrongdoing itself, where the lawyer is still instructed for the purpose of furthering the wrongdoing, for example by concealing the wrongdoing or its proceeds;

(4)       The exception applies whether or not the solicitor is aware of the wrongful purpose; and

(5)       The exception applies where the client is unaware of the wrongful purpose, if the client is being used as an unwitting tool or mechanism by a third party to further the third party’s fraud.

The Court addressed issues as to the burden and standard of proof.

Young v Chief Constable of Warwickshire (2020) EWHC 308 (QB) recites the applicable principles in relation to the tort (and crime) of misfeasance in public office. There are four ingredients: (1) the defendant must be a public officer; (2) the conduct complained of must be in the exercise of public functions; (3) malice; and (4) damage.

Malice, the requisite state of mind, is either “targeted malice” or “untargeted malice”.

For “targeted malice”, the conduct is specifically intended to injure a person or persons. This type of case involves bad faith, in the sense of the exercise of a public power for an improper or ulterior motive.

For “untargeted malice”, the public officer acts knowing that he/she has no power to do the act complained of, or acts with “reckless indifference” as to the lack of such power and knows that the act will probably injure the claimant. Read more »

The issue in Allen v Dodd (2020) EWCA Civ 258 was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract and causing loss by unlawful means. To be liable for inducing a breach of contract, you must know that you are inducing a breach. Negligence, even gross negligence, is not enough. Mere suspicion is not enough. The touchstone is knowledge.

Read more »

In Vodaphone v OFCOM (2020) EWCA Civ 183,  the Court of Appeal has held that assessment of a claim for restitution, under the principle in Woolwich Equitable BS v IRC (1993) AC 70, that a public authority could not retain a fee collected without lawful authority, did not involve consideration of any counterfactual situation.

Read more »

In Haringey LBC v FZO (2020) EWCA Civ 180,  the Court of Appeal held that the Council, which was the employer of a teacher, was vicariously liable for the teacher’s acts in grooming and sexually abusing a 13-year old pupil during his school years and thereafter, but in the teacher’s private time and not at school.  The Court addressed not only vicarious liability, but also limitation, “consent” (conditioned consent, resulting from a grooming process, was not true consent), and causation.

There is liability as a joint tortfeasor if (1) someone has acted in a way that assists the commission of the tort by the primary tortfeasor and (2) he/she did so pursuant to a common design to do or assist with the acts that constituted the tort. Whether that test is met in a particular case is a fact sensitive assessment that will turn on all the relevant circumstances. That law has been restated and applied in Red Bull v Big Horn (2020) EWHC 124 (Ch), at paragraphs 45-48 inclusive, where the primary tortfeasor was a company, and the issue was as to the personal liability of a director. The Judge said that the fact that the alleged tortfeasor was a director of the primary tortfeasor did not exclude liability, nor did it establish that the conditions for joint liability were met. There was liability in this action in the case of the sole director and entirely controlling mind of the company who was directly responsible for the activities and actions of his company vehicle.

On (1) what is required in order to establish a claim for dishonest assistance, (2) whether to order a retrial, and (3) the limitations on the ability of an appellate court to interfere with a discretionary decision of a lower court, see MAGNER v RBS (2020) UKPC 5.

In FMX v HRMC (2020) UK SC 1 the Supreme Court considered the fundamental principle of legal certainty of general application in EU law.  This includes that where national legislative provisions appear to allow legal action without any time limit, then the principle of legal certainty requires it to be done within a reasonable time (paragraph 45, per Lord Briggs).