Recent litigation cases - May 2020 roundup

We've brought together a round-up of some recent litigation cases that may be of interest to you.

Remote hearings and adjournments

Since the challenges and upsides of proceeding with a remote trial apply to both sides equally, there was no unfairness in refusing to adjourn a five week trial of an insolvency claim.  The judge considered the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and the Remote Hearing Protocol and insisted that a trial should go ahead remotely in June (Re Blackfriars Ltd). 

Experts’ duties

As with counsel and solicitors, an expert’s paramount duty owed to the court is not inconsistent with an additional duty of loyalty to the client. Where a fiduciary duty of loyalty arises in a particular court case or arbitration, the expert must not place themselves in a position where their duty and their interest may conflict. The claimant was entitled to an injunction preventing its expert in an arbitration from acting in a closely related arbitration between it and a third party (A v B).

Tomlin Orders and open justice

It is not the normal practice for judges to inspect confidential schedules or agreements annexed to Tomlin Orders.  The terms of the settlement agreement will not be on the public record but this is not a derogation from open justice.  The agreement results from autonomous decision-making by the parties, not the court, and the mention of an agreement in an order does not give rise to any right of inspection (Zenith Logistics Services (UK) Ltd v Coury).

Vicarious liability

Morrisons was not vicariously liable for its employee's torts of misuse of private information, breach of confidence and breach of statutory duty under the Data Protection Act 1998.  The employee had been pursuing a personal vendetta when he disclosed the personal data of other employees on the internet. His wrongful conduct was not so closely connected with acts he was authorised to do that it could fairly and properly be regarded as done by him while acting in the ordinary course of his employment (WM Morrison Supermarkets PLC v Various Claimants).

Privilege and the fraud exception

The fraud exception applies whether or not the solicitor is aware of the wrongful purpose, and also where the client is unaware of the wrongful purpose if the client is being used as an unwitting tool to further a third party’s fraud. The court held that the required standard of proof is a strong prima facie case. The fraud exception applied in this case to documents held by the defendant LLP for its former client, which would otherwise be privileged (Addlesee v Dentons Europe LLP).

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