Litigation roundup - November 2021

Service of claim forms

The court used its power under CPR 3.10 to order that service of an unsealed claim form was good service.  The identical sealed version had been served two days after the very short deadline in procurement proceedings. The strict time limits in procurement cases, and the "peculiar facts of this case" which included confusion of dates generated by CE-File also justified validating unauthorised service by email (Citysprint UK Ltd v Barts Health NHS Trust).

QOCS and costs set-off

The Supreme Court has held that a defendant to a personal injury claim can no longer set off its costs against costs ordered in the claimant’s favour. Such a defendant can only enforce the order up to the value of orders for damages and interest made in the claimant’s favour (CPR 44.14). The court recognised that the result might look counterintuitive and unfair but it was part of the Qualified One-way Costs Shifting scheme devised to protect claimants against liability for costs and to remove the burden of paying success fees and ATE premiums from defendants’ insurers (Ho v Adelekun).

Disclosure and control

The defendant was ordered to disclose documents held by a third-party agent, as they were within the defendant's control under CPR 31.8. The decision, which also considers the Disclosure Pilot Scheme and PD 51U, offers guidance on how the court will analyse the function of an agent to determine whether documents held by a third party are within a party's control (Quartz Assets LLC and another v Kestrel Coal Midco Pty Ltd).

Data breach claims

Victims of cyber-attacks can only seek redress through a claim solely for breach of data protection litigation. Misuse of private information, breach of confidence and negligence cannot be cited as causes of action in a claim for compensation for distress relating to a cyber-security breach.  ATE premiums have remained recoverable for "publication and privacy" proceedings but this ruling means that claimants will no longer be entitled to seek recovery of the ATE premium from the opponent in such claims (Warren v DSG Retail – see our briefing on this case and the Supreme Court's decision in Lloyd vs Google here).

Without prejudice correspondence

The protection attached to a chain of emails marked “without prejudice” extended to a subsequent email even though it was not so labelled. The last email plainly followed on from the prior emails seeking to resolve a dispute and there had been no clear indication that the sender wished to shift to “open” communications. As a result, the recipient’s non-response to that email was similarly protected and could not be relied on. The court also rejected an argument that certain portions of the without prejudice emails fell outside the privilege because the issue they dealt with was separate to the dispute being negotiated (Jones v Lydon).

Litigation privilege

Non-party costs orders

The Court of Appeal held that, to make a non-party costs order against the director of an insolvent company under section 51 of the Senior Courts Act 1981, it has to be shown not only that the director controlled and funded the company's conduct of the unsuccessful litigation, but also that the director benefited (or sought to benefit) personally from the litigation, or acted in bad faith or was responsible for some sort of impropriety (Goknur Gida Maddeleri Enerji Imalet Ithalat Ihracat Ticaret Ve Sanayi AS v Aytacli).

Competition class actions

The Competition Appeal Tribunal (CAT) has approved the first application for a collective proceedings order (CPO) under the UK’s competition class action regime. The CAT rejected the application in 2017 but reconsidered it following an appeal to the Supreme Court. However, the CAT refused Merricks permission to amend the claim form in order to include deceased persons in the class, and refused a claim for compound interest (Merricks v MasterCard Inc).