In TAYTIME LTD v SoS ( 2024 ) EWHC 1053 ( Admin ) Lang J summarises, at paras 55-59 inc, when fresh evidence will be admissible in a judicial or statutory review. Generally the Court does not consider evidence that was not before the decision-maker. Fresh evidence will be admitted only in limited circumstances. These are ( 1 ) to show what material was before the decision-maker, ( 2 ) to demonstrate a jurisdictional fact or procedural error or misconduct by the decision-maker, ( 3 ) where the interests of justice require it, ( 4 ) where there is a legal challenge on the grounds that the decision-maker failed to investigate adequately and the evidence would demonstrate what would have been discovered if due enquiry had been made, or (5) in the consideration of remedy.

Part 8 of the Equality Act 2010 ( Sections 108-112 inclusive ) contains ancillary provisions about liability of employers and principals ( Section 109 ) and liabilities of employees and agents ( Section 110 ). In BALDWIN v CLEVES SCHOOOL ( 2024 ) EAT 66 the School was held liable under Section 209, and it is held that if the conditions for individual liability on the part of an individual employee or agent as set out in Section 110 are satisfied then a contravention of Section 110 must be found. There is no discretion.

According to the structure of the whistleblowing legislation, in order for employers to be fixed with liability, B ought to have some knowledge of what the claimant is complaining or expressing concern about. It is not enough that B knows that the claimant has made a claim to A. So observes Sheldon J in Nicol v World Travel, EA-2023-000036-JOJ.

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 3^rd May, and there will be public evidence sessions over the next 3 months, with a view to a Report by July 2024.

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.

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.

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 ).

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.

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.

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.