Litigation round-up August 2021

Service of claim forms

The claimant served a claim form on the defendant’s solicitors by email because the solicitors had an email footer requiring service on them to be by email during the pandemic.  However, there was no written authority for service on the solicitors rather than the defendant as required by CPR 6.7. The court refused to validate service of the claim form (LSREF 3 Tiger Falkirk Ltd I S.a.r.l. v Paragon Building Consultancy Ltd – see our briefing: Service by email – a survivor’s guide.

Part 36 offers

The claimants were entitled to obtain the favourable costs consequences under Part 36 where they had made a Part 36 offer to settle for £1 and nominal damages of £10 were awarded at trial (Shah v Shah).

Litigation privilege

The claimant was entitled to claim privilege over a letter of claim against its former solicitors and the response from their professional indemnity insurers even though it had no intention of bringing a claim against them. The dominant purpose of the communications was the claimant’s intention to obtain evidence relevant to the present litigation against the defendant (Victorygame Ltd v Ahuja Investments Ltd – see also our briefing: A checklist and refresher on litigation privilege in light of Qatar v Banque Havilland).

Non-party costs orders

The Court of Appeal held that, to make a non-party costs order against the director of an insolvent company under section 51 of the Senior Courts Act 1981, it has to be shown not only that the director controlled and funded the company's conduct of the unsuccessful litigation, but also that the director benefited (or sought to benefit) personally from the litigation, or acted in bad faith or was responsible for some sort of impropriety (Goknur Gida Maddeleri Enerji Imalet Ithalat Ihracat Ticaret Ve Sanayi AS v Aytacli).

Competition class actions

The Competition Appeal Tribunal (CAT) has approved the first application for a collective proceedings order (CPO) under the UK’s competition class action regime. The CAT rejected the application in 2017 but reconsidered it following an appeal to the Supreme Court. However, the CAT refused Merricks permission to amend the claim form in order to include deceased persons in the class, and refused a claim for compound interest (Merricks v MasterCard Inc).