In EU law the Francovich/Factortame conditions for state, that is public authority, liability in damages include that the breach is “ sufficiently serious “. This applies for example to damages for breach of the Public Contracts Regulations 2015 and the Concession Contracts and Utilities Contracts Regulations 2016, implementing EU law There has been case law on what constitutes being “ sufficiently serious “, notably Energy Solutions v NDA (2016) EWHC 3326 (TCC) and (2017) UKSC 34. The post Brexit Procurement Act 2023, not implementing EU law,   contains no express requirement for a breach to be sufficiently serious. Does this mean that the requirement has gone? No, says Coulson LJ in Braceurself Ltd v NHS England (2024) EWCA Civ 39.

Sadeq v Dechert (2024) EWCA Civ 28 raises a number of important points of law about the scope of LPP, both litigation privilege and legal advice privilege, and the so called “iniquity exception” applicable to both, in a 243 paragraph Judgment, Popplewell LJ addressed, amongst other matters, the merits threshold test for the iniquity exception.

He said:-
“52. I start with a number of uncontroversial aspects of the iniquity exception. As is well-known, legal professional privilege encompasses both legal advice privilege and litigation privilege. Broadly speaking, legal advice privilege applies to communications between a lawyer and its client for the sole or dominant purpose of giving or receiving legal advice, and documents which would reveal the contents of such communications; litigation privilege attaches to communications between a lawyer and its client or third parties which are brought into existence for the sole or dominant purpose of use in the conduct of existing or contemplated adversarial litigation … Where legal professional privilege exists, it is inviolate: there is no balancing exercise to be undertaken between the interest in maintaining privilege and competing interests in disclosure of the communications … Legal professional privilege was described by Lord Hoffmann in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 18 [2003] 1 AC 563 at [7] as a fundamental human right, which the European Court of Human Rights has held is part of the right to privacy protected by article 8 ECHR.

53. There is a principle that privilege does not exist if the document comes into existence in relation to a fraud, crime or other iniquity… a claim for legal professional privilege does not apply to documents which have been brought into existence in the course of or in furtherance of a fraud …

54. The exception applies to criminal cases … and civil cases … It applies equally to legal advice privilege and litigation privilege…

55. The principle is not confined to fraudulent or criminal purposes, but extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice … Whilst formerly often referred to as the fraud exception, it is now most commonly referred to as the iniquity exception.

56. It is not confined to cases in which the legal adviser is party to, or aware of, the iniquity. The relevant iniquitous purpose is that of the client, or if the client is being used as a tool for the iniquity by a third party, that of the third party …

57. The principled juridical basis for the exception is that it is a necessary ingredient of legal professional privilege that the communication should be confidential; and that the iniquity exception applies where and because the iniquity deprives the communication of the necessary quality of confidence … It is therefore an exception in the sense of something which prevents the privilege arising in the first place, not an exception in the sense of a disapplication of existing privilege.

58. Communications between a lawyer and client, or with third parties, are confidential if they take place in the usual course of the professional engagement of such a lawyer, notwithstanding that the engagement may concern an iniquity. This is why the iniquity exception does not apply to the “ordinary run of cases” … Such privilege is not prevented from attaching merely because the solicitor is engaged to conduct litigation by putting forward an account of events which the client knows to be untrue, and which therefore involves a deliberate strategy to mislead the other party and the court. and to commit perjury … Accordingly the touchstone in distinguishing such cases from those where the exception applies is whether the iniquity puts the conduct outside the normal scope of such professional engagement or is an abuse of the relationship which falls within the ordinary course of such engagement …”

He continued, at paragraph 63:-

“63. I have reached the conclusion that save in exceptional cases, the merits threshold for the iniquity exception is a balance of probabilities test: the existence of the iniquity must be more likely than not on the material available to the decision maker, whether that be the party or legal adviser determining whether to give or withhold disclosure, or the court on any application in which the issue arises; and that in an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This, in my view, is what the cases speaking of a prima facie case have had in mind, and what is meant by a prima facie case in this context (whatever it may mean in other contexts).

64. That conclusion is dictated by principle and consistent with, and to some extent supported by … authorities at appellate level …

65. Application of the iniquity exception involves the balance of two competing public policy considerations. On the one hand, there are the policy considerations which underlie the existence of legal professional privilege …

68. On the other hand there is a strong public interest in iniquity being uncovered …

69. In the context of litigation, this is reinforced by the imperative of the parties being able to adduce before the court all relevant evidence so that the dispute is determined fairly and correctly. If relevant evidence is concealed, there is a risk of injustice …

72. … a test of anything less than a balance of probabilities would be inconsistent with principle. The test should … be whether the iniquity exists on the balance of probabilities on the material available to the decision maker, whether party, legal adviser or court, at the time the decision is made, save in exceptional circumstances …”

“108. The merits threshold for the existence of an iniquity which prevents legal professional privilege arising, whether legal advice privilege or litigation privilege, is a prima facie case, which means that on an assessment of the material available to the decision maker, whether that be the party or its legal adviser conducting disclosure, or the court, it appears more likely than not on a balance of probabilities that such iniquity exists. In an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This is subject to the proviso that there might exist exceptional circumstances which could justify a court taking the view that a balance of harm analysis has a part to play.”

In Sullivan v IoW Council (2024) EAT 3 the EAT has held that an ET did not have jurisdiction to hear a whistleblowing claim brought by an external jpb applicant against the local authority . The applicant did not fall within the definition of “worker”.

Competition Appeal Tribunal Direction 1/2024 from the President sets out the general approach to be taken with respect to managing issues related to CONFIDENTIALITY RINGS, whereby the disclosure of  documents which contain SENSITIVE INFORMATION is restricted to specified individuals, usually external or in-house legal representatives or other external advisors or experts.  The Direction applies where the first Case Management Conference in a case, at which a Confidentiality Protocol should be provided,  takes place after 4 January 2024. That approach “permits a degree of pragmatism”. The population of documents for which confidential treatment is sought should be reduced to a “minimum”.

In HXA v SURREY COUNTY COUNCIL and YXA v WOLVERHAMPTON CITY COUNCIL (2023) UKSC 52 the Supreme Court allows the local authorities’ appeals and holds that the claims should be struck out. These claims were for failing allegedly negligently to protect children from abuse. The Supreme Court holds that the necessary starting point for a negligence claim is a common law duty of care, and there is none such, That is because there had been no assumption of responsibility.

In GLOVER v FLUID STRUCTURAL ENGINEERS (2023) EWHC 3219 (TCC) the Defendant submitted that the claims advanced by the Claimants cannot succeed as a matter of law, and therefore should be struck out, or dismissed summarily, rather than be allowed to go to trial. The Judge set out the proper ambit of and approach to such applications as follows:-

(1) A Court may strike out a claim where, amongst other things, the statement of case discloses no reasonable grounds for bringing or defending the claim;
(2) A Court may give summary judgment where: (a) the claimant has no real prospect of succeeding on the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial;
(3) Where applications are made to strike out under the CPR as disclosing “no reasonable grounds” for bringing the claim and, in the alternative, for summary judgment, there is no difference between the tests to be applied;
(4) Proper grounds for strike out and for summary judgment exist where the facts of the case, do not, even if true, amount in law to a defence to the claim;
(5) However, it is generally not appropriate to strike out a claim on assumed facts in an area of developing jurisprudence;
(6) Proper grounds for summary judgment include that on current evidence a claim has no realistic prospects of success and there is no additional evidence that can reasonably be expected to be available at trial (including any oral testimony) that is likely to add to or alter the evidence that will be available to a trial judge and so affect the outcome of the case; (7) However, the Court should not conduct a mini-trail on disputed evidence.

In CHURCHILL v MERTHYR TYDFIL CBC ( 2023 ) EWCA Civ 1416 the Court of Appeal says that a Court may lawfully stay Court proceedings for, or Order, the parties to engage in a non-Court based Dispute Resolution Process, provided that the Order made (1) does not impair the very essence of the Claimant’s right to proceed to a judicial hearing and (2) is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost. The Court declined to lay down principles as to what will be relevant in determining the question of a stay of proceedings or an Order that the parties engage in a non-court based dispute resolution procedure. The kind of non-court based dispute resolution procedure in issue was an internal Complaints Procedure operated by the local authority to which the Claimant was not contractually bound.

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.

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.

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.