The assessment of interest in breach of trust cases (Watson v Kea Investments)

CA 1259 – Watson v Kea Investments Ltd [2019] EWCA Civ 1759

breach of trust

This case provides useful guidance in respect of the appropriate method in assessing interest payable in respect of breach of trust cases. In particular, it confirms that in appropriate cases where there is sufficient evidence, the rate of interest payable ought to be assessed on the basis of the equivalent rate of interest which could have been obtained if the money had been invested in a proper trustee investment. A fixed rate of interest based upon the level of interest which could have been obtained by borrowing or depositing the money was not appropriate in this instance.

This article was first published by Lexis®PSL on 28/10/2019 (Clink on the link above for the full article).

A thorny issue—the admissibility of covert recordings in civil proceedings (Mustard v Flower)

mustard

CA 1249 – Mustard v Flower & Ors [2019] EWHC 2623 (QB) (11 October 2019)

In Mustard v Flowers, Master Davison considered the thorny issue of the admissibility of covert recordings in civil proceedings. Challenges based on data protection law failed.The judge outlined that the admissibility of such evidence will be determined on a case by case basis, and it could not be determined by general guidance to be applied across the board. A potential solution in personal injury cases was the adoption of a protocol providing for an agreed scheme for the recording of medical examinations. This would negate the desire or need for covert recordings of such examinations. Until such time a protocol is adopted, the key question remains whether or not such evidence is relevant and probative.

This article was first published by Lexis®PSL on 15/10/2019 (click on the above link for the full article).

Legal privilege—once established, it will remain in existence unless and until it is waived (Addlesee v Dentons)

CA 1224 – Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600, [2019] All ER (D) 12 (Oct)

This analysis considers the recent Court of Appeal decision in respect of legal advice privilege, which overrules the Upper Tribunal decision in the case of Garvin Trustees Ltd v the Pensions Regulator. It confirms that legal advice privilege, once established, remains in existence unless and until it is waived. The argument that, where there was no legal person entitled to assert this legal advice privilege, it followed that privilege ceased to exist, was incorrect.

This article was first published by Lexis®PSL on 07/10/2019 (Click on above link for full article).

 

 

Revisiting the admissibility of opinion evidence (Gregory and another v Moore)

CA 1207 – Gregory and another v Moore (formerly known as Ganna Ziuzina) and others [2019] EWHC 2430 (Ch)

This case analysis revisits the question of the admissibility of opinion evidence, CPR 35 and hearsay evidence in a civil context. Chief Master Marsh considered a number of recent decisions in this regard, starting with the decision of the Court of Appeal in Hoyle v Rogers. It was also noted that a clear distinction arose between expert evidence which was covered by CPR 35 and that which was not. CPR 35 only applied to expert evidence from an expert ‘who has been instructed to give or prepare expert evidence for the purposes of proceedings’. Expert evidence prepared for other purposes, such as in respect of a criminal investigation as in the instant case, does not fall within CPR 35 and is not subject to its restrictions.

This article was first published by Lexis®PSL on 27/09/2019

 

 

Court considers temporary stay pending determination of related proceedings in Sweden (Office Depot International BV v Holdham SA)

CA 1154 – Office Depot International BV and other companies v Holdham SA and other companies [2019] EWHC 2115 (Ch)

This article was first published by Lexis®PSL on 15/08/2019

This case deals with the various mechanisms for staying an action in circumstances where there are parallel proceedings yet to be finally determined in a different jurisdiction. In particular, it considers the applicable tests and criteria pursuant to Article 30 of the Regulation (EU) 1215/2012, Brussels I (recast) as well as the applicability of Civil Procedure Rules (CPR), specifically CPR 11(1)(b).

 

Default judgment—still no definitive answer as to jurisdiction to enter where acknowledgement of service or defence filed late (Hanson v Carlino)

CA 1137 – Hanson & Ors v Carlino & Anor [2019] EWHC 1940 (Ch) (24 May 2019)

This article was first published by Lexis®PSL on 02/08/2019

A question which has troubled the courts in recent years is whether or not default judgment can be entered in circumstances in which an  acknowledgment of service has been filed late, but prior to the court determining the application for default judgment. Unfortunately, the judge in Hanson, rather than deciding this point, held that relief from sanction principles applied in the instant case as no defence had been filed at all, such that default judgment should be entered upon the failure of the defendant’s application for an extension of time to file his defence. This analysis considers this case alongside other recent judgments which have grappled with this question but, until such a case reaches the Court of Appeal, or the rules are clarified, this is an issue which is likely to prove highly contentious, with a large body of conflicting first instance decisions.