Recent litigation cases - 2020 Round up

Disclosure of settlement agreement

The claimant brought an action against five defendants and reached a settlement agreement with the third defendant. The settlement agreement was not protected by without prejudice privilege or litigation privilege and had to be disclosed without redactions to the other defendants, even though it incorporated details of the claimant's earlier without prejudice communications with the third defendant (BGC Brokers LP v Tradition (UK) Ltd).

Need for a re-hearing

Although a defendant had been unaware of an application to enforce a Tomlin order against him, and had made a prompt application to set it aside once he knew about it, it was not fair and just to rehear the application. The reason the defendant was unaware of the application was because he had made it difficult for the claimant to contact him. Service of the application on his solicitors was effective because they had not made an application to come off the record (Ivanhoe Mines Ltd v Gardner).

Changing experts

An NHS trust applied without notice at a case management conference to change experts in respect of a medical negligence claim but did not tell the master the full extent of its current expert's involvement in the case nor his expertise. The trust also failed to take the master to the law on changing experts and the need to deter expert shopping, as set out in Edwards-Tubb v JD Wetherspoon Plc. These failures led the master wrongly to grant permission to change experts without requiring the trust to disclose its current expert's report. Disclosure of reports should be ordered where there is a hint of undesirable expert shopping (Burke v Imperial College Healthcare NHS Trust).

Part 36 offers

A Part 36 offer must be inclusive of interest and an offer that excludes interest cannot be a valid Part 36 offer, even if it is made in detailed assessment costs proceedings. CPR 36.5(4) states that Part 36 offers to pay or accept monetary sums will be treated as inclusive of interest. It is mandatory and its interpretation is not controlled by PD 47.19 which applies to detailed assessment proceedings. The position should be reconsidered by the Civil Procedure Rules Committee and PD 47.19 revised accordingly (King v City of London Corporation).

Waiver of privilege

A mere reference to the existence of a privileged document in a witness statement is not sufficient to waive privilege. There must be a reference to, or reliance on, the contents of the privileged document for waiver to occur. Here the witness statement referred to the fact that the claimant had received Dutch law advice prior to formulating its Dutch law case against the defendant. The maker of the statement was relying on the effect of the advice and not its content and privilege in communications about the advice was not waived (KMG International NV v Chen).