Confidentiality

March 19th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

On “ Confidentiality Rings” in civil litigation, see INFDERATION Ltd v GOOGLE LLC (2020) EWHC 657(Ch) at paras 27-47 inc.

 

Some thoughts on Local Authorities and Coronavirus

March 18th, 2020 by Peter Oldham QC in Decision making and Contracts, Human Rights and Public Sector Equality Duty, Judicial Control, Liability and Litigation, Local Authority Powers, Social Care

This note sets out some information and personal views about local authority decision making in the light of the current crisis.

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Judicial Review Costs

March 16th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In R (Parreen) v Redbridge LBC (2020) EWCA Civ 194 the Court of Appeal has reiterated the principles that should be applied when dealing with the costs of judicial review proceedings which have been withdrawn or settled prior to a full hearing in circumstances where the claimant has obtained all or some of the relief claimed. It is necessary to identify the “successful party”, but success consists not only in obtaining the relief sought, but also obtaining it earlier than would otherwise have been the case.  The Court of Appeal also reiterated  however that investigation of such matters has to be kept within reasonable and proportionate bounds; and that the fact that the claimant obtained the relief sought did not necessarily mean that the proceedings had caused or contributed to that outcome.

 

Actionable Duty of Care

March 12th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Husson v SSHD (2020) EWCA Civ 329 Simler LJ stated, at paragraph 42, that:-

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Expert Witnesses

March 12th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

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.

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Interim Relief

March 9th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

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:-

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Legal Professional Privilege (“LPP”)

March 5th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

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.

 

Misfeasance in public office

March 5th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

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 »

 

Inducing Breach of Contract

February 28th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

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.

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Unjustified Enrichment

February 21st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

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.

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