Dispute Resolution round-up - June 2020

In this decision, the Supreme Court dismissed a class action brought by Morrisons employees against the supermarket in relation to a data breach.  In doing so, it conducted a detailed examination of the law of vicarious liability, ultimately concluding that Morrisons was not liable for the actions of a disgruntled employee, Andrew Skelton, who had deliberately stolen personal details relating to c.100,000 other Morrisons employees, and shared them with national newspapers.

To read the judgment, please click here

In this decision, the Supreme Court held on the facts that an employer, Barclays, which had sent job applicants for a medical examination with a doctor, was not vicariously liable for torts committed by that doctor.  This was on the basis that the doctor was an independent contractor carrying on business on his own account.

To read the judgment, please click here, and for a more detailed analysis of both cases by an Associate in our team, Charlotte Angwin, please click here.

In this decision, which is now being taken as the key authority on how to treat applications for adjournments during the COVID-19 pandemic, the court refused an application by the claimants to adjourn a five week trial listed for June 2020, on the bases on the COVID-19 pandemic. It instead ordered the parties to explore together the ways in which a remove trial might proceed. 

The decision makes clear that as many hearings as possible should continue remotely during this period, that co-operation and planning between parties are essential, and that the challenges and upsides of proceeding remotely will generally apply to all parties equally, such that there is no unfairness to any should a remote hearing go ahead. 

To read the judgment, please click here.

In this decision, which is now being taken as the key authority on how to treat applications for extensions of time during the COVID-19 pandemic, the court granted an application to extent the deadline for service of the defendant's reply evidence by 5-6 weeks, and to push back a hearing date for a jurisdiction challenge accordingly. The defendant's experts were based in Brazil and the court accepted that the current travel ban in place between the UK and Brazil would inevitably make obtaining their evidence a lengthier process than would otherwise have been the case. 

To read the judgment, please click here. 

In this decision, the court granted an injunction restraining the presentation of a winding up petition against a company on the basis that it was highly likely that the petition would soon be caught by the government's forthcoming Corporate Insolvency and Governance Bill (discussed further above).

To read the judgment, please click here.

This decision concerns the interpretation of a force majeure clause in a contract between the defendant, Sony, and the claimant, 2 Entertain, and is thus very pertinent to the present circumstances.

In very brief summary, Sony owned a warehouse from which it provided storage and distribution facilities to 2 Entertain, pursuant to the relevant contract.  The warehouse and its contents – over 20 million CDs and DVDs - were subsequently destroyed during an arson attack, as part of the riots which took place in London in 2011.

Sony sought to argue that the fire was an event which triggered the force majeure clause in the contract.  That argument was, however, rejected by the court.  It held that, although the riots and the fire were both "unforeseeable" (and were referred to expressly in the clause as potential force majeure events), Sony could and should have taken more steps to prevent the fire.  In particular, the contract required Sony to ensure that adequate security measures were in place, and that the goods were kept in a secure location, but the warehouse security provided had in fact been insufficient.  The primary cause of damage was therefore negligence on the part of Sony, rather than the fire.

The decision is therefore an important reminder that force majeure clauses won't generally protect businesses which could reasonably have taken action to avoid the type of problem or event set out in the relevant clause, but have failed to do so.

To read it, please click here, and for a more detailed case briefing from our Commercial team, please click here.

In this decision, the court struck out a LIBOR mis-selling claim against NatWest on limitation grounds. It concluded that the date of issuance of an FCA Final Notice against the bank was the date on which the limitation period in respect of the claim had started to run (being the date on which the claimant could with reasonable diligence have discovered the facts on which the claim was based), and that the claim form had therefore been issued just after the limitation period had expired.

To read the judgment, please click here.

In this decision, the court dismissed an application for a Norwich Pharmacal order brought by litigation funder Burford Capital against the London Stock Exchange, by which Burford sought disclosure of the identities of market participants involved in trading Burford's shares on two days in August 2019.

In doing so, the court declined to accept that Burford had a good arguable case that its share price had been unlawfully manipulated on the days in question, and also concluded that, regardless, it would not have been just and convenient to require the stock exchange to disclose to Burford the identities of all market participants trading on those days.

To read the judgment, please click here.

In this decision, the court considered the meaning of an indemnity in a Sale and Purchase Agreement.  The buyer of the company had sought a declaration that it was entitled under the relevant provision to be indemnified against certain liabilities.  The sellers contended that a requirement on the buyer to give notice of relevant matters "as soon as possible and in any event prior to the seventh anniversary of the date of [the SPA]" had not been met.  The court held that the notice provision imposed two distinct requirements, being to ensure that notice was given: (i) as soon as possible; and (ii) within seven years. The buyers were found not to have complied with the first requirement, and their claim therefore failed.

To read the judgment, please click here.

This decision also concerns the interpretation of an indemnity in a Sale and Purchase Agreement, and in particular the question of whether an indemnity expressed to cover pre-completion damage to assets should be construed as covering only damage occurring in the period between signing and completion or, as the court ultimately decided, any damage occurring at any time prior to completion.  Although it does not make any new law, it contains useful guidance on how the courts tend to interpret such provisions.

To read the judgment, please click here.

This decision considers the thorny question of when one entity can be said to have control over documents held by a connected or related entity for the purposes of disclosure. It makes clear that this will always be judged on a case by case basis, taking into account a number of factors, but that it will generally be easier to assert that such control exists where a parent-subsidiary relationship subsists between the two entities, and in particular where there can be said to be either an explicit "standing consent" to the effect that one entity is able to request documents from the other, or an implicit standing consent based on a history of such requests being made and acceded to.

To read the judgment, please click here.

In this decision, the court refused to allow a significant portion of a successful defendant’s costs due to its repeated refusal to engage in mediation over the course of a dispute, emphasising once again that a failure to participate in ADR may have consequences even for a winning party.

To read the judgment, please click here.