Covert recordings and the variation of undertakings (DSM SFG Group Holdings Ltd v Kelly)

The recent case of DSM SFG Group Holdings Ltd v Kelly confirms that a party will not be able to rely upon confidential and covertly obtained information, prior to that party having established the legal right to use the same. It also serves as a useful reminder of the principles to be applied when considering whether or not to allow a party to vary undertakings previously given—in the absence of a material change in circumstances since the original undertakings were given, the alterations will ordinarily be refused.

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CA 1389 – DSM SFG Group Holdings Ltd and other companies v Kelly [2019] EWCA Civ 2256

This article was first published by Lexis®PSL on 06/01/2020

Adverse inferences where material evidence not available at trial (Mackenzie v Alcoa Manufacturing (GB) Ltd)

CA 1343 – Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWCA Civ 2110

Noise Photo

This case analysis considers the recent Court of Appeal decision in Mackenzie v Alcoa, in which the Court of Appeal considered the approach appellate courts should take in respect of a trial judge’s determination of fact. The court also considered the correct approach to the drawing of an adverse inference in respect of a historic industrial deafness case where there was noise in the workplace, but no noise survey was available from the material period.

This article was first published by Lexis®PSL on 03/12/2019

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CPR 14—permission to withdraw an admission (Sabbagh v Khoury)

PDF CA 1306 – Georgia Whiting

This case addressed the scope of CPR 14.1(1) in terms of what will amount to an admission for the purposes of the same. It also confirms the variety of forms in which such an admission can be said to have arisen pursuant to CPR 14. An analysis was also undertaken in respect of the checklist and relevance of considerations when a party, having made an admission, seeks permission to withdraw the same. Further, the defendant’s application for a strike out of a purported withdrawal of a concession made orally was unsuccessful, primarily on the basis that the claimant would suffer significant
prejudice were the application to succeed, but the defendants would not if the application failed.

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This article was first published by Lexis®PSL on 22/11/2019

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)


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