High Court confirms that variation of a disclosure order under the disclosure pilot is governed by CPR PD 51U (Conversant Wireless Licensing v Huawei)

CA – Conversant Wireless Licensing SÀRL v Huawei Technologies Co Ltd and others [2020] EWHC 256 (Pat)

This case confirms that, in a case where the disclosure pilot for the Business and Property Courts (the disclosure pilot) applies, the applicable test for revoking or varying an order for disclosure pursuant to CPR 3.1(7) must give way to the specific requirements of CPR PD 51U, para 18, which expressly sets out a different test. In particular, a court may at any stage make an order varying or revoking a previous order for extended disclosure, provided that it is necessary for the just disposal of the proceedings and that it is reasonable and proportionate. There is nothing in the disclosure pilot to suggest that applications to vary orders for extended disclosure will only be granted where something out of the ordinary has occurred.

This article was first published by Lexis®PSL on 27/02/2020

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Inducing a breach of contract—clarification of what amounts to a sufficient state of mind (Allen v Dodd)

CA 1549 – Allen t a David Allen Chartered Accountants v Dodd and Anr [2020] EWCA Civ 258

The issue raised on this appeal was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract. It was confirmed that, if a defendant honestly believes that the act they procure will not amount to a breach of contract, they are not liable in tort even if their belief is mistaken in law. It matters not that a defendant’s erroneous belief is caused by their own ignorance or as a result of incorrect advice they receive from their lawyers.

This article was first published by Lexis®PSL on 2 March 2020

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High court gives guidance on issues for disclosure, disclosure models and cooperation between parties in relation to disclosure pilot (McParland v Whitehead)

CA 1506 – McParland and others v Stuart Whitehead [2020] EWHC 298 (Ch)

Sir Geoffrey Vos, Chancellor of the High Court, took the opportunity to provide helpful guidance on CPR PD 51U—which governs the disclosure pilot in the Business and Property Courts. In particular, he emphasised that issues for disclosure are very different to issues for trial, and issues for disclosure do not extend to every issue which is disputed in the statement of case by denial or non-admission. In many cases, the issues of disclosure need not be numerous, and they will almost never include legal issues or factual issues which are already capable of being resolved based upon documents available from initial disclosure. Parties ought to pay close attention to the various models of disclosure provided within the pilot scheme, and it may be appropriate for parties to each rely upon different models in respect of the same issue, but this must be assessed on a case by case basis. The importance of cooperation was also addressed, and it was made clear that parties must not seek to use the process to gain any litigation advantage; such conduct will be met with immediately payable adverse costs.

This article was first published by Lexis®PSL on 18/02/2020

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‘Warehousing’ not automatically an abuse of process (Alibrahim v Asturion Foundation)


CA 1448 – Alibrahim v Asturion Foundation [2020] EWCA Civ 32

The recent case of Alibrahim v Asturion Foundation provides clarification in respect of the practice known as warehousing, that is to say, a party unilaterally placing legal proceedings on hold without the agreement of the other side or order of the court. The Court of Appeal unanimously held that such a practice would not automatically amount to an abuse of process such that the claim was liable to be struck out.

first published by Lexis®PSL on 29/01/2020

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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).