Litigation round-up March 2022

A round-up of some recent litigation cases that may be of interest.

Service of claim forms

The Good Law Project sent an unsealed copy of the claim form to the email address specified by the Government Legal Department “by way of service” copying in the relevant GLD individuals. When it served the sealed claim form the next day, it sent it only to the individuals and not to the specified address. The court held that this was defective service and refused relief under CPR 6.15. The Court of Appeal rejected GLP’s appeal and confirmed that although CPR 7.6 does not apply to extensions of time for service of a judicial review claim form, its principles should be followed in this context.  GLP say they intend to seek permission to appeal to the Supreme Court (The Good Law Project, R (On the Application Of) v The Secretary of State for Health And Social Care).

Witness statements

Where a party’s witness statement is found to be seriously defective, the court has the following options: to withdraw permission leaving the party to apply for permission to adduce a further witness statement; to withdraw permission for the existing statement but order that it be re-drafted in accordance with PD 57AC; to do surgery to the existing statement by removing non-compliant passages; to require the witness to give evidence orally in chief; or to let the matter go to trial and make an adverse costs order. In this case it was appropriate to order the statement to be re-drafted: it would be most unsatisfactory for a serious breach of PD 57AC to be ignored and the problems left to be dealt with at trial (Greencastle MM LLP v Payne).

Solicitors’ equitable lien

The Supreme Court held by a majority of 3:2 that a firm of claimant solicitors could claim an equitable lien in respect of flight compensation claims. Lord Burrows held the appropriate test is “whether a solicitor provides services (within the scope of the retainer with its client) which significantly contribute to the successful recovery of a fund by the client.” A test requiring an actual or expected dispute for the lien to apply would create uncertainty. The lien can be claimed where there is collusion to cheat the solicitor out of their fees or where the defendant has been given notice of the solicitor’s interest in the damages  (Bott & Co Solicitors Ltd v Ryanair DAC).

Solicitor’s retainer

The Court of Appeal has adjourned the hearing to July 2022 in view of the ramifications of the issues raised in the Belsner appeal.  These issues include the following: whether a client needs to give informed consent when they enter into a written agreement under CPR 46.9(2) permitting the solicitor to charge an extra payment to the client; if so, what informed consent means in these circumstances; and whether a solicitor has a fiduciary duty to a client when they are negotiating their fee, or only once the retainer is concluded (Cam Legal Services Ltd v Belsner, on appeal from Belsner v Cam Legal Services Ltd).

Force majeure

A “reasonable endeavours” requirement in a force majeure clause, invoked due to the impact of US sanctions on Russian entities in 2018, did not require the party claiming force majeure to accept non-contractual performance.  The non-contractual performance here was payment in Euros instead of US Dollars under an English law contract to pay foreign currency in The Netherlands (MUR Shipping BV v RTI Ltd).

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