Litigation round-up May 2023

Privilege

There is no reason of principle or policy to limit the availability of litigation privilege to a prospective or actual party to prospective, pending or actual litigation. The victim of a crime is a good example of a person likely to have sufficient interest in the litigation to wish to obtain privileged legal advice about the proceedings. Where privileged and non-privileged material is so intertwined that redacting the privileged parts of a document is not feasible, the balance falls in favour of withholding the entire document from disclosure (Al Sadeq v Dechert LLP).

Data protection and legal proceedings

The court refused to restrain an individual’s former employer from disclosing documents concerning a professional misconduct investigation against him to prospective claimants. The proposed disclosure would not breach the data protection legislation, which should be applied purposively, not mechanically. The provision allowing the processing of data where it is “necessary for compliance with a legal obligation” should not be construed narrowly (Dixon v North Bristol NHS Trust).

Representative actions

The court struck out a representative action under CPR 19.8 brought on behalf of 1.6 million individuals against Google. The Royal Free London NHS Trust transferred their medical records to Google's firm DeepMind Technologies in 2015. The data was used in connection with the development of a mobile app designed to analyse medical records and detect acute kidney injuries. A representative action under CPR 19 can only be brought if the represented class has the “same interest” in the claim. These class members would not be able to satisfy the “same interest” test. A representative action would require substantial re-formulation with a very substantially narrower cohort than the claimant class to have any possible prospect of success (Prismall v Google UK Ltd).

Failure to pay correct court fee

CPR 3.10 cannot be relied upon to rectify a failure to pay the correct court issue fee. The court’s case management powers only come into effect when proceedings are issued, and CPR 3.10 only applies to errors of procedure. An error of procedure does not include a failure to pay a court issue fee where the requirement to pay that court fee derives from an order made by the Lord Chancellor (Peterson v Howard De Walden Estates Ltd).

Limitation defence

The Supreme Court has rejected the claimants’ appeal and held that the Bonga offshore oil spill affecting land on the Nigerian coast in 2011 was a one-off event. The claimants’ cause of action in private nuisance accrued at the moment when the oil reached the shore, some weeks after the spill. As a result, the claim was time-barred. Any oil remaining on the shore years later did not give rise to a continuing nuisance so that the limitation period starts afresh from day to day (Jalla v Shell International Trading and Shipping Co Ltd).