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February 2020

Supreme Court

Awaiting judgment

Vicarious liability: data leak. The appeal in Various Claimants v Wm Morrisons Supermarket was heard on 6 & 7 November 2019. The issues are:
1.Whether the Data Protection Act 1988 (‘the DPA’) excludes the application of vicarious liability to a breach of that Act, or for misuse of private information or breach of confidence,
2.Whether the Court of Appeal erred in concluding that the disclosure of data by the appellant’s employee occurred in the course of his employment, for which the appellant should be held vicariously liable.

Arbitration: impartiality. The appeal in Halliburton v Chubb Bermuda Insurance Ltd & Ors will consider the question of when an arbitrator should make disclosure of circumstances which may give rise to justifiable doubts as to his impartiality.  The hearing took place on 12 & 13 November 2019.

Vicarious liability: sexual assault. The issue in Various Claimants v Barclays Bank Plc is whether a defendant employer is liable for sexual assaults committed by a medical practitioner in the course of medical examinations carried out at the employer’s request either before or during the claimant’s employment. The hearing took place on 28 November 2019.

Clinical negligence: damages. In XX v Whittington Hospital NHS Trust the issue is whether the respondent can recover damages for expenses of surrogacy arrangements which she intended to make in the UK or elsewhere. Whether it is correct to differentiate between "own egg" and "donor egg" surrogacies in awarding damages for such surrogacy expenses. The Court of Appeal held that she was entitled to recover the damages. The hearing took place on 16 & 17 December 2019.

Care costs: night time care. On 12 & 13 February 2020 the Supreme Court heard an appeal in Royal Mencap Society v Tomlinson-Blake in which the issue is whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity. The outcome will be relevant to the assessment of damages in catastrophic injury claims as flagged in this Gazette update.

Permission to appeal

Since the last update the permission to appeal applications lists for December and January have been published, and there has also been news of a high profile application where permission has been refused. 

Recent cases of interest where permission to appeal has been granted include:

  • Bott & Co Solicitors Ltd v Ryanair DAC concerning the issue of equitable liens. Read more in the Gazette.

  • Burnett v International Insurance Co of Hanover Ltd, a Scottish case concerning the interpretation of a public liability policywhich excluded liability arising out of "deliberate acts", after the deceased was killed as a result of an assault by a bouncer. Read more on the Inner House decision in Scottish Legal News.

  • Matthew v Sedman, which concerns the calculation of time for the purposes of limitation and midnight deadlines.

There has also been news this month that the Supreme Court has refused the Motor Insurers' Bureau permission to appeal in the case of MIB v Lewis. Last June, the Court of Appeal upheld a first instance decision that the MIB was liable to indemnify a claimant in respect of an injury suffered when he was struck by an uninsured vehicle on private land. David Knifton QC who represented the respondent comments on the decision (there is no judgment for the PTA application)

Awaiting a hearing 

Below are cases which await further official developments following permission to appeal being granted:

  • Doughty Street Chambers reported in March that permission to appeal has been granted in Henderson v Dorset Healthcare University NHS Foundation Trust on the question of how the illegality defence operates in the law of tort. 

  • Stoffel & Co v Grondona a solicitors' negligence case involving mortgage fraud. Permission to appeal has been granted on ground only: whether the Court of Appeal erred in the application of the Patel v Mirza guidelines. Read more in our update on the Court of Appeal decision in 2018.

  • 7KBW reported in May that permission to appeal had been granted to MMI following April's Court of Appeal decision in Equitas Insurance Ltd v Municipal Mutual Insurance Ltd concerning the 'spiking' of mesothelioma claims in reinsurance claims. Chambers anticipate that the case will be heard in the first half of 2020.

  • Permission to appeal has been granted in S&T (UK) Ltd v Grove Developments Ltd which concerns 'smash and grab' adjudications. Read more on the background in our update on the Court of Appeal decision in November 2018. 

  • Manchester Building Society v Grant Thornton UK LLP, an accountants' negligence case which looks at the information provider / adviser distinction in the SAAMCO principle and its application in professional negligence cases. Read more in our update on the Court of Appeal decision in January 2019.

  • Khan v Meadows, also concerning the SAAMCO principle. This is a clinical negligence case which concerns the extent of the losses for which a doctor is liable arising out of her breach of duty. See Court of Appeal judgment from October 2018.

Court of Appeal

New judgments

Construction: insurance. An appeal in Manchikalaparti & Ors v Zurich Insurance PLC & Anor (aka Zagora Management Ltd & Ors v Zurich Insurance plc & Ors) took place on 15 October 2019.  This is a complex case about a development of two blocks of flats in Manchester which due to serious defects, in particular in relation to fire safety, made the flats inhabitable. As a result, claims were made against the defendant insurer, relying on building warranties and against the building inspectors. Jonathan Selby QC and Charlie Thompson of Keating Chambers who represented the successful claimants comment here on the judgment handed down on 5 December 2019.

Tort: acts of third parties. An appeal in Kalma & Ors v African Minerals Limited & Ors took place in December 2019. At first instance Turner J held that the claimants had not established liability against the defendant mining company for the injuries they sustained following events which unfolded in Tonkolili, a remote and inaccessible district in the North of Sierra Leone. In a judgment handed down on 17 February 2020 the Court of Appeal upheld the first instance decision, and as counsel for the respondent say in this short update, the judgment "contains an important discussion of the principles of intention in common design, and the duty of care for acts of third parties in negligence."

Part 36: indemnity costs. An appeal in Lejonvarn v Burgess was heard on 16 January 2020. This was a construction professional negligence case in which the claimant failed to beat the defendant's Part 36 offer at trial. The issue on appeal was whether the defendant was entitled to indemnity costs and involved looking at the claimant's conduct. In a judgment handed down on 6 February 2020 the Court of Appeal allowed the defendant indemnity costs. Read more in our update Freebies for friends? Burgess v Lejonvarn revisited – Indemnity costs 

Historic abuse claims. The case of FZO v Adams & London Borough of Haringey concerns a historic abuse claim. Over two judgments handed down in December 2018 and May 2019 Cutts J made determinations on issues of limitation, consent, vicarious liability, causation and quantum resulting in an award to the claimant of over £1 million. The appeal took place in December and in a judgment handed down on 18 February 2020 the Court of Appeal dismissed the defendants' appeal.

Professional indemnity insurance: non-party costs orders. In January 2019, Foskett J made a non-party costs order against a solicitors' professional indemnity insurer under the Senior Courts Act 1981 s.51, in relation to a protracted group litigation claim. Even though as part of a separate agreement the insurer effectively ceded control of the litigation to the solicitors, this did not protect the insurer from a successful s.51 application. On causation, the insurer's funding of the defence materially increased the costs expended by the claimants, and the judge estimated that they had spent twice as much on pursuing their claims than they would have done if the insurer had not funded the defence of the claims in the way it did, and so ordered the insurer to pay half of the costs. An appeal in Various Claimants v Giambrone & Law (A Firm) & Anor was listed for the end of January 2020 but was dismissed on 23 January 2020.

Costs: detailed assessment. The case of Ainsworth v Stewarts Law LLP was heard earlier this month. As Robin Dunne of Hardwicke Chambers who appeared at the last hearing on behalf of the defendant explained on Twitter, the case concerns points of dispute which were struck out for not being detailed enough. In a judgment handed down on 19 February 2020, the Court of Appeal upheld the first instance decision and gave guidance on points of dispute. Read more in Robin Dunne's update.

Awaiting judgment

Property damage: insurance. The claimant in Sartex Quilts & Textiles Limited v Endurance Corporate Capital Limited made claims under an insurance policy after a fire damaged their buildings and destroyed their plant and machinery. The dispute arose out of the basis of indemnity and whether in the absence of having reinstated the business, the claimant should be indemnified on the basis of reinstatement or by reference to the market value of the buildings, plant and machinery. The appeal took place on 21 January 2020. Read more in the first instance decision.

Forthcoming hearings

Catastrophic injury: duty of care. The case of Al-Najar & Ors v The Cumberland Hotel raises issues about whether a hotel proprietor owes a duty to guests to take reasonable care to protect against injury caused by the criminal actions of third parties, and if so whether the duty was breached in this case. Three sisters were attacked with a hammer by a thief whilst they were staying at the Cumberland Hotel. At first instance, Dingemans J held that whilst the hotel did owe the claimants a duty, it had not breached that duty, and there was no liability on the part of the hotel. An appeal is due to take place on 17 or 18 March 2020.

Catastrophic injury: accommodation claims. At a personal injury assessment of damages hearing last year in Swift v Carpenter, the judge considered herself bound by Roberts v Johnstone in relation to the quantification of accommodation claims, and given the current negative discount rate made no award. The appeal on 23 July was highly anticipated in light of the newly announced negative discount rate -0.25%. However, in response to the claimant's application to adduce further evidence the Court of Appeal took the opportunity to adjourn the matter to consider the wider implications. Read more in this update from Richard Viney of 12 KBW, who appears in the case for the defendant. The appeal has been fixed for three days beginning 24 March 2020, and expert evidence has been allowed in four disciplines: IFA, chartered surveyor/valuer, economist and actuary. In the meantime in a judgment handed down on 20 February 2020 the Court of Appeal refused the claimant's application for a protective costs order. The judgment also provides an outline of recent procedural developments.

Court of Justice of the European Union (CJEU)

Package holidays: vicarious liability. An appeal in X v Kuoni Travel Ltd was heard in the Supreme Court on 1 May 2019. The case concerns the extent to which a tour operator can be liable for a sexual assault carried out by an employee of one of its supplier hotels, and the appeal considered issues around breach of contract and/or Reg 15 of the Package Travel, Package Holidays and Package Tours Regulations (SI 1992/3288). In a judgment handed down on 24 July, the Supreme Court decided to refer two questions to the Court of Justice of the European Union concerning the Directive implemented by the above Regulations, specifically in relation to the question of whether any liability of Kuoni is excluded. The reference was made on 30 September and you can see the questions referred here. We await further developments.