A round-up of some recent litigation cases – April 2018

Litigants in person and defective service

The Supreme Court (by a majority of 3 to 2) dismissed the litigant in person claimant’s appeal. He had served the claim form by email without express authorisation as required by Practice Direction 6A on the penultimate day of the four month period for service. The courts at all levels refused to validate service under CPR 6.15. There are no special rules for litigants in person – the rules on service are clear and Mr Barton had therefore not done all he reasonably could to serve in accordance with the rules (Barton v Wright Hassall LLP).

Scope of settlement agreement

The Court of Appeal dismissed the claimant’s appeal against a finding that a settlement agreement with its former solicitors also compromised a later negligence claim for £70 million. The agreement concerned payment of unpaid invoices relating to work on an acquisition. The court distinguished BCCI v Ali (No 1) where an unknown and uncontemplated claim for stigma damages was not compromised despite a wide release clause. The possibility of a claim for the negligent performance of professional services as a matter of law was plain in this instance even though it was not contemplated by the parties at the date of the settlement agreement (Khanty-Mansiysk Recoveries Ltd v Forsters LLP).

Genuine offer

The court rejected the argument that a Part 36 offer to settle a multi-million clinical negligence claim for 90 per cent of its value was not a genuine offer. The claimant was awarded indemnity costs plus enhanced interest on those costs at 5 per cent above base rate (JMX (A child by his Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust).

Funding in clinical negligence claims

The Court of Appeal has made two recent decisions about funding in clinical negligence claims. In Springer v University Hospitals of Leicester NHS Trust the claimant was refused relief from sanctions where it had failed to notify the defendant of a funding arrangement as soon as possible. In Surrey v Barnet & Chase Farm Hospitals NHS Trust the claimant’s solicitors were held to have failed to advise their clients properly concerning a move from legal aid to a CFA before the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force in April 2013.

Litigation privilege

In The Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd the judge held that litigation privilege does not apply just because a criminal investigation is contemplated. A more generous approach was taken to litigation privilege in the context of a civil tax investigation by HM Revenue & Customs in Bilta (UK) Ltd v Royal Bank Of Scotland Plc. In this context, the judge held that litigation privilege applied because discovering the truth and enabling advice to be given in relation to litigation both formed part of RBS’s single overarching purpose. The Court of Appeal in R v Jukes has approved SFO v ENRC in the criminal context. The Court of Appeal is to hear ENRC’s appeal in SFO v ENRC in July 2018.

Legal advice privilege

Legal advice privilege does not arise where the solicitor is acting, not as the client's legal adviser, but as the client's "man of business". In divorce proceedings, the husband’s solicitor had been summonsed and questioned about factual topics including arranging insurance for the husband’s modern art collection. The Court of Appeal confirmed with reference to Three Rivers (No 5) and SFO v ENRC that communications between a solicitor and a third party are not covered by legal advice privilege (Kerman v Akhmedova).