Expert witness

November 29th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

The general rule in civil cases is that a party must challenge by cross-examination evidence of any witness of an opposing party on a material point which he or she claims should not be accepted by the Trial Judge. This applies not only to witnesses of fact, and/or where the character of the witness is impugned, but also, the Supreme Court says in TUI v GRIFFITHS ( 2023) UKSC 48 to expert witnesses. This however is not a rigid requirement. It depends upon the circumstances of each case. The question is whether, taken as a whole, the trial is fair. The Supreme Court gives non-exclusive instances in which this requirement may be relaxed.

 

Newcomer Injunctions

November 29th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

WOLVERHAMPTON CITY COUNCIL AND OTHERS v LONDON GYPSIES AND TRAVELLERS ( 2023 ) UKSC 47 concers Injunctions obtained by local authorities to prevent unlawful encampments by Gypsies and Travellers. The Supreme Court holds that the Courts have power to grant “ Newcomer Injunctions .” “ Newcomers “ are persons who are unknown and unidentified at the date of the grant of the Injunction, and who have not yet performed, or even threatened to perform, the acts which the Injunction prohibits. However, the Supreme Court says that the power should be exercised only in circumstances where there is a compelling need to protect civil rights or to enforce public law that is not met by any other available remedies. In addition, “ Newcomer Injunctions “ should be made subject to procedural safeguards to protect newcomers’ rights.

 

Judicial Review Remedies

November 29th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In general, Judicial Review remedies are forward looking. They are for where the public authority does not remedy the breach itself. Generally, the function of Judicial Review is not to conduct an inquest into whether or not the authority is culpable for an unsatisfactory situation. In R ( KENT COUNTY COUNCIL ) v SSHD ( 2023 ) EWHC 3030 ( Admin ) Chamberlain j adds, at para 31, that, in some situations, it may be difficult to form a view about the  lawfulness of an authority’s present conduct without at least some understanding of the lawfulness of past conduct.

 

DUTY OF CANDOUR AND REDACTION

November 21st, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

I R ( IAB ) v SSHD (2023) EWHC 2930 (Admin) Swift J gave guidance on the Duty of Candour and on the procedure to be adopted by a party who wishes documents in Judicial Review proceedings to be redacted so as not to disclose the names of employees and/or contractors. The Duty of Candour is an obligation of explanation, rather than simply an obligation to disclose. It exists to ensure that the reasoning process underlying a challenged decision is explained. Disclosure of relevant material is required when it is necessary for the fair and just determination of an issue in the case. A person disclosing a redacted document should fully and succinctly explain at the point of disclosure the reason for the redaction and do so in a witness statement.

 

Time Limits

November 16th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

Limitation periods for bringing claims are set out in the Limitation Act 1980. The commencement of the period is postponed when any fact relevant to the right of action has been “deliberately concealed” from the claimant by the defendant. “Deliberate concealment” includes when there is a “deliberate commission of a breach of duty” in circumstances in which it is unlikely to be discovered for some time. The meaning of “deliberately” and “concealed” in this context are clarified by the Supreme Court in CANADA SQUARE OPERATIONS LIMITED v POTTER (2023) UKSC 41.

The Supreme Court holds that a fact will have been “concealed” if the defendant has kept it secret from the claimant, either by taking active steps to hide it or by failing to disclose it. Contrary to previous Court of Appeal authority, the claimant does not need to establish that the defendant was under a legal, moral or social duty to disclose the fact, nor does she need to show that the defendant knew the fact was relevant to the claimant’s right of action. All that is required is that the defendant deliberately ensures that the claimant does not know about the fact in question and so cannot bring proceedings within the ordinary time limit. Read more »

 

Abuse of Process

November 8th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

To what extent, if at all, can a claim, which is in time, and found to be arguable on the merits, be struck out as an abuse of process, because of what was said (or not said) at an earlier hearing in separate but unrelated proceedings? That was the issue before the Court of Appeal in ORJI v NAGRA (2023) EWCA 1289. The Court addressed the rule in HENDERSON v HENDERSON and found that it was not applicable.

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Limited Partnership

November 7th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

The question before the Court in FRONTIERS CAPITAL 1 LIMITED PARTNERSHIP v FLOHR (2023) EWHC 2723 (Ch) was whether the general partner of a limited partnership governed by the Limited Partnerships Act 1907 (the 1907 Act) has standing after the dissolution and apparent winding up of the partnership to sue a third party in respect of a cause of action accruing before dissolution. A limited partnership under the 1907 Act is of course different from an ordinary partnership under the Partnership Act 1890 (the 1890 Act) and from a limited liability partnership under the Limited Liability Partnership Act 2000.

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Sexual Harassment

October 30th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

With effect from 26 October 2024, the Worker Protection ( Amendment of Equality Act 2010 ) Act 2023 will introduce a duty on employers to take “ reasonable steps “ to prevent sexual harassment of their employees in the workplace.

 

UNLAWFUL PROTESTS

September 1st, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

Esso v Breen ( 2023 ) EWHC 2013 ( KB ) concerns an application for a permanent injunction to restrain unlawful protests. The claimant must (1) establish a specific cause of action’ (2) as regards persons unknown, satisfy the Canada Goose guidance in so far as it applies to final relief, (3) satisfy s 12(2) HRA 1998 as to service, and (4) show interference with ECHR Articles 10 and 11 is justified.

 

VICARIOUS LIABILITY

August 25th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

IN MXX v A Secondary School ( 2023 ) EWCA Civ 996 the Court of Appeal examines the 2 stage test for vicarious liability : (1 ) Whether the relationship of the defendant and the tortfeasor is one that is capable of giving rise to vicarious liability, which is not limited to employment, and ( 2 ) , if so, whether whether the connection that links that relationship between the defendant and the tortfeasor with the act or omission of the tortfeasor is sufficiently close to give rise to vicarious liability.