Litigation cases review – September 2026

We've pulled together recent court decisions that may be of interest in this litigation cases review.

Pre-action costs liability

Where a claim is issued but the defendant is never served and incurs costs during the pre-action protocol stage, the court can award costs against the claimant. The defendant in this libel action breached the protocol process by responding late to the letter of claim. In the absence of a limitation standstill agreement, the claimants had to issue proceedings to protect their position. Applying CPR 44.2, the defendants were only entitled to one-third of their costs (Clarke & Clarke v Porthcawl Town Council).

Small claims track and unreasonable costs

The small claims track is a costs neutral regime designed for under-resourced and vulnerable litigants. Costs can be awarded against a party for unreasonable behaviour but this should be interpreted against that background. The withdrawal or unsuccessful pursuit of a claim should not in itself be considered unreasonable. The Court of Appeal set aside the order for costs against the claimant (Orton v Barclays Bank UK Plc).

Abuse of process

“Privilege hunting”, where a party seeks to obtain an opponent’s confidential and privileged information by dishonest means, is an abuse of the court’s process. The claimants procured a sting operation against the defendant’s solicitor by investigators Black Cube. They paid for this on a success fee basis, providing a powerful incentive for the use of unethical methods. They also breached their duty of full and frank disclosure by failing to refer to the operation when applying for freezing orders. The judge below struck out the claimants’ application for summary judgment. As a further sanction was required, the Court of Appeal also discharged all of the freezing orders against the defendants
(Salinas Pliego v Astor Asset Management 3 Ltd).

Omnibus claim forms

The Court of Appeal upheld the decision below allowing motor finance claims brought by about 5,800 claimants to continue with only eight claim forms. It accepted that if individual claim forms were required and the claims scattered to County Courts around the country, the vast majority of the claimants would not wish to, or would be unable to afford to, pursue their claims. The court acknowledged the increase in workload created by such claim forms and the loss of fee revenue. It suggested a review of the relevant test in CPR 7.3 for using a single claim form following the increase in this type of claim (Black Horse Ltd v Angel - see our article about group litigation).

Vicarious liability

The Court of Appeal reviewed the law concerning vicarious liability where a tort is committed by the employee of an independent contractor. The “akin to employment” expansion of vicarious liability in earlier authorities does not affect the position of a true independent contractor carrying on their own independent business. A defendant who has engaged an independent contractor will be vicariously liable only where there has been a transfer of control and responsibility so as to make them the temporary deemed employer of the tortfeasor
(Burger v Risk Solutions BG Ltd – see our article on avoiding vicarious liability).

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