A round-up of some recent litigation cases - March 2019

Privilege and confidentiality

Privilege cannot be maintained if a document has ceased to be confidential but this may not occur where there is an accidental disclosure to a small number of people. The Mirror Group was entitled to maintain privilege over legal advice that had fallen into the hands of a number of journalists and at least one investor. Information only ceases to be capable of protection as confidential when it becomes known to a substantial number of people (Winstone v MGN Limited).

Time limits and court queues

If a limitation period or court deadline expires on a day when the court offices are closed, it will be extended to the next day on which they are open (Pritam Kaur v S. Russell & Sons Ltd). This rule was not engaged where the appellant had not attempted to file his application with the court until the end of the relevant six-week period, leaving himself with no opportunity to deal with contingencies that might arise, such as his agent being refused entry by the security guard at 4:25pm. The circumstances did not violate Mr Croke’s right to access to a court under article 6 of the European Convention on Human Rights so as to justify an extension of the six-week time limit (Croke v Secretary of State for Communities and Local Government).

Abuse of process

The court reversed a decision striking out the claim for abuse of process on the ground that the claimant had “warehoused” the claim for a period of time. The claimant delayed the proceedings because of an application made by the defendant in Liechtenstein for the purpose of thwarting the English action. The claimant had good reason therefore to believe that the defendant was content with the decision not to press on with the action (Asturion Foundation v Alibrahim). Read our briefing on the case here.

Conditional orders

Courts should be cautious about making conditional orders requiring defendants with potentially good defences to provide security for all or most of the sum claimed as a condition of being allowed to defend. The condition must represent a proportionate and effective means of achieving an identified purpose. The defendants should also be entitled to adduce evidence of their means. An order permitting the defendant to adduce fresh evidence at a summary judgment hearing on condition that it provided security of £1 million (about 90 per cent of the claim) should be set aside (Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC).

Evidence and oral agreements

Due to the prevalence of electronic communications, it is rare nowadays to have an agreement, particularly one involving very large sums, without some form of electronic footprint. In almost every commercial case, the best approach for a judge to adopt in making factual findings is to be guided principally by the contemporary documents and the inferences which can be drawn from them and from known or probable facts, rather than oral evidence of witnesses. The judge rejected the claimant’s evidence about an oral agreement that would have entitled him to a significant fee where there was no sensible explanation for the absence of a document recording the agreement (O'Neill v Avic International Corporation (UK) Ltd).