Privilege
The Court of Appeal considered many issues concerning privilege in the context of the defendants’ conduct of an investigation. These included whether non-parties are entitled to the benefit of litigation privilege. The court noted that the following are in principle entitled to claim litigation privilege: victims of an alleged crime who are not party to the criminal proceedings, liability insurers conducting litigation on behalf of their insureds, litigation funders, non-parties gathering evidence for group litigation, entities behind a joint venture company involved in litigation, and witnesses or potential witnesses or non-parties against whom serious allegations are made in litigation between others (Al Sadeq v Dechert LLP).
Solicitors’ liability for helpline advice
When answering a potential injury claimant’s call to the firm’s legal helpline, the firm had offered high-level preliminary advice about negligence claims and specific advice about personal injury limitation periods. It did not thereby take it upon itself to give wider-ranging advice about any steps the claimant might reasonably take to protect her position before she issued proceedings, in particular informing the holiday tour operator about the accident so it could notify its insurers. Solicitors are not generally obliged to advise clients about the risk of unenforceability of a judgment due to the insolvency or impecuniosity of the other side unless they are put on notice of financial difficulties (Miller v Irwin Mitchell LLP).
Substitution of party
The claimant mistakenly named a limited liability partnership of solicitors as the defendant instead of the solicitors' predecessor partnership. It amended the claim form to substitute the predecessor as the correct party. It was in the interests of justice to allow the substitution to stand. Both partnerships were represented by the same legal team and were covered by the same insurers, meaning the substitution would make no difference to the defence of the claim, nor would it cause any real prejudice to the predecessor (The Tintometer Ltd v Pitmans (a firm)).
Applications for relief from sanctions
A late application to rely on expert evidence in a new discipline was not an application for relief from sanctions and should be decided in accordance with the overriding objective. Not every rule or order, even if couched in mandatory terms, has a sanction triggered for a breach. The hurdle for identifying an implied sanction is high, and there was none here. CPR 3.9 only applies where there is both a breach and a sanction (Yesss (A) Electrical Ltd v Warren).
Without prejudice rule
The court considered many issues concerning the admissibility of evidence and struck out parts of witness statements made by two defendants. The defendants failed to prove that the without prejudice evidence included in the statements fell within any of the exceptions to the without prejudice rule. One of those exceptions enables the admission of objective facts which emerged during without prejudice negotiations, where those facts formed part of the factual matrix relevant to the correct interpretation of a contract. This exception does not allow reliance on without prejudice material to construe a particular phrase or concept in a contract (Ocean on Land Technology (UK) Ltd v Land).
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