Round-up of litigation cases - February 2021

Business interruption insurance test case

The Supreme Court's judgment in the COVID-19 business Interruption insurance test case unanimously rejected all of the insurers’ appeals in a comprehensive win for the FCA and affected policyholders (The Financial Conduct Authority v Arch and Others) – see our briefing on the decision.

Employment tribunal claims against insurers

The Court of Appeal has confirmed that the employment tribunal has jurisdiction to offer a claimant a one-stop shop where they wish to bring a claim under the Third Parties (Rights against Insurers) Act 2010 against the insurer of their insolvent employer. A claimant in employment tribunal proceedings does not have to begin a separate action against the insurer in the ordinary civil courts (Irwell Insurance Company Ltd v Watson – see our briefing on the decision.

Without prejudice

The test for admissibility of without prejudice statements is not whether there is a "good arguable case" that there has been unambiguous impropriety. A judge should simply ask whether the evidence establishes an unambiguous impropriety (Motorola Solutions, Inc v Hytera Communications Corporation Ltd).

Privilege and attachments

The Supreme Court has refused permission to appeal against the decision that emails and their attachments have to be considered separately when it comes to privilege, holding that Fraser Group’s (formerly Sports Direct) appeal did not raise an arguable point of law.  Pre-existing documents that are sent to a lawyer for the purpose of obtaining legal advice do not become privileged by being attached to a privileged letter or email (Sports Direct International Plc v The Financial Reporting Council upheld by implication).

Service of claim forms

PD 51O does not displace the rule that a draft claim form without a court seal is not a claim form capable of being served. A claimant cannot serve a filed claim form until it is accepted, issued and sealed via the electronic filing system, CE-File. A sealed version may not be available for some time after the claim form is filed by the claimant. The court refused to validate defective service of several unsealed amended claim forms (Ideal Shopping Direct Ltd v Visa Europe Ltd).