Kerry Underwood

NON-PARTY COSTS ORDERED AGAINST LIQUIDATOR’S FIRM THAT FUNDED UNSUCCESSFUL LITIGATION

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Burnden Holdings (UK) Ltd & Anor v Fielding & Anor [2019] EWHC 2995 (Ch)

the Chancery Division of the High Court made a non-party costs order under section 51 of the Senior Courts Act 1981 against a firm which funded unsuccessful proceedings brought by one of its partners as liquidator of a company, the individual partner having already agreed to pay 15% of the costs.

The judge distinguished between the liquidator on the one hand, who was working on the basis of a 50% share of net recoveries, and his firm on the other hand which funded the litigation to the extent of £478,256.

The judge found that the liquidator’s firm did not exert any control over the litigation, but nevertheless had a sufficient interest in the litigation to characterise the firm as a real party for the purposes of a non-party costs order, and it was not a pure funder simply facilitating access to justice, even though its funding had that effect.

The provision of the partner of his services in return for 50% of the net recoveries was not third party funding sufficient to warrant a section 51 order.

While a distinction needed to be drawn between the firm, and one of its partners, nevertheless the firm stood to gain financially from that partner’s remuneration, and in terms of its funding the firm would recover 2.25 times its funding if the case was successful.

The only asset in the liquidation was the claim against the defendants.

The court held that it was just, in all the circumstances, to apply the Arkin cap, that is to limit the firm’s liability under the section 51 non-party costs order to the extent of its own funding.

The imposition of the Arkin cap is discretionary.

Here, the court took the view that the Arkin cap struck a fair balance between the successful defendants’ entitlement to costs and the risk of discouraging funding that facilitated access to justice, as the funding here had done.

The court also observed that the funding here had initially assisted successful appeals when other funding was not available and, while the firm should be treated as a real party in relation to the application, it did not stand to gain an enormous return on its investment, and its funding also stood to benefit creditors of the claimant.

Much of the funding was in relation to satisfying interim orders for costs in favour of the defendant and security for costs, and the additional funding amounted to only £100,000 and the defendants’ costs were a great deal more.

The case has potential significance for liquidators and the court said this about the individual liquidator’s work in return for 50% of net recoveries, as opposed to the specific cash funding by the firm:

 “While in a loose sense, it might be said that Mr Hunt was “funding” his own work as liquidator by agreeing to be paid only from recoveries in the event that there were any, Mr Potts did not suggest that this would justify a liquidator being made liable for the costs of another party in litigation brought by the company in liquidation. It was common ground among Counsel that there is no reported case of such an order being made. There was no evidence as to what an appropriate percentage share of recoveries might be, so far as a liquidator’s remuneration in an equivalent liquidation is concerned. Mr Potts did not suggest that the level of recovery was per se objectionable in that sense.

The court therefore refused to place a value on the work of Mr Hunt for inclusion in the Arkin cap.

The court also held that as the appointment of a liquidator is personal to that individual liquidator, it is wrong to characterise that individual’s firm as ascertaining control over the liquidation merely by reason of the fact that the individual is a partner in the firm.

There was no criticism of the rate of 2.25 times the funding as the reward if the case was successful, and indeed the court specifically accepted that it was justified.

 

Limitation by Reference to the Period of Funding

The court limited the order in relation to the defendants’ costs to the period during which the firm provided funding.

The fact that after the period of funding the firm maintained its potential benefit of 2.25 times the amount of the funding did not cause the continuation of the proceedings and nor did it cause the defendants to incur further costs.

Although the firm’s funding ensured that the proceedings were in existence and could therefore continue, the court did not accept that a “but for” test of causation was sufficient to impose liability as a funder when the funding ceased, and indeed others were providing funding.

Consequently, the firm’s liability was limited both to the amount of its funding as the Arkin cap, and to the costs incurred by the defendants during its actual period of funding.

The court here held that there should be no distinction between funds provided to satisfy costs orders and funds provided actually to fund the litigation. All should come into the reckoning for the purposes of the Arkin cap.

This follows the decision in

Excalibur Ventures LLC v Texas Keystone Inc (No.2) [2017] 1 WLR 2221 .

In that case the issue was whether money provided for security for costs should be included in the amount of the Arkin cap, and the court said that it should and found that:

“…no basis upon which a funder who advances money to enable security for costs to be provided by a litigant should be treated any differently from a funder who advances money to enable that litigant to meet the fees of its own lawyers or expert witnesses. Both the provision of security for costs, if ordered by the court, and the payment of the litigant’s own lawyers and experts, are costs of pursuing the litigation which, if not met, will result in the litigation being unable to proceed. I do not understand why contribution to different categories of the costs of pursuing the litigation should attract different regimes. All the sums advanced are used in pursuit of the common enterprise and for the benefit of all of the funders.”

Comment

This is an important decision concerning the potential liability of liquidators and their firms for non-party costs orders.

The judgment contains a detailed analysis of the relevant case law.

Underwoods Solicitors are the solicitors for Crowe UK LLP, the Joint Liquidators of the Cambridge Analytica Group of Companies

Written by kerryunderwood

November 22, 2019 at 8:30 am

Posted in Uncategorized

LITIGATION FRIEND’S DUTIES AND COURT’S POWER TO END APPOINTMENT

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Raqeeb, R (On the Application Of) v Begum & Anor [2019] EWHC 2976 (Admin)

the Administrative Court dismissed an application by Barts Health NHS Trust to terminate the appointment of a litigation friend acting for a child in judicial review proceedings concerning the provision of life-sustaining treatment for the child.

The court reviewed the duties of a litigation friend under CPR 21, and the court’s discretion under CPR 21.7 to terminate a litigation friend’s appointment.

The child, acting through her court-appointed litigation friend, a family member, brought a judicial review challenge against a refusal by the defendant hospital trust to permit the child to be transferred to a hospital in Italy for continued life-sustaining treatment.

During those proceedings, the defendant hospital trust applied for a determination that withdrawing such treatment was in the child’s best interests.

The defendant hospital trust also applied to terminate the court-appointed litigation friend’s appointment as the child’s litigation friend, arguing that the court-appointed litigation friend, owing to her familial love for the child as well as her religious beliefs, lacked the ability to take a balanced and even-handed approach regarding the child’s best interests.

The judge reviewed the authorities and set out the relevant principles.

The court has a wide discretion to terminate a litigation friend’s appointment.

A litigation friend, including one appointed by the court, must be able fairly and competently to conduct proceedings.

This includes acting under proper legal advice, but also being able to exercise some independent judgment on that advice.

A litigation friend who does not act on proper advice may be removed.

The litigation friend must have no interest adverse to that of the child, but there is no principle that a family member cannot act as a litigation friend, so long as they can take a balanced and even-handed approach to the relevant issues.

Religious beliefs of themselves do not disqualify a person from acting as a litigation friend.

Applying these principles, the judge dismissed the defendant hospital trust’s application.

The judge found that the defendant hospital trust’s arguments concerning the litigation friend’s religious views were only relevant to the consequences of a potentially successful outcome to the judicial review application, rather than the merits of the underlying application itself.

The litigation friend had taken legal advice on those merits from the child’s experienced, specialist legal team, and there was no suggestion by that team that the litigation friend acted inappropriately in the context of that advice or had an improper motive.

A litigation friend is an officer of the court whose duty is to take all measures for the benefit of the infant in the litigation – Rhodes v Swithenbank (1889) 22 QB 577.

A litigation friend must take legal advice, but must also be able to exercise some independent judgment on that advice – Nottinghamshire CC v Bottomley [2010] EWCA Civ 756.

Written by kerryunderwood

November 21, 2019 at 7:11 am

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COMPENSATION ORDER REGIME FOR DISQUALIFIED PERSONS CONSIDERED FOR FIRST TIME

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In

Secretary of State for Business, Energy & Industrial Strategy v Eagling [2019] EWHC 2806 (Ch) (1 November 2019)

the High Court ordered a disqualified director to pay compensation equal to misappropriated company funds which founded his disqualification.

This is the first case brought by the Secretary of State under the compensation order regime, introduced on 1 October 2015 by sections 15A and 15B of the Company Directors Disqualification Act 1986.

The sections are now supported by Compensation Orders (Disqualified Directors) Proceedings (England and Wales) Rules 2016 (SI 2016/890) and the Disqualified Directors Compensation Orders (Fees) (England and Wales) Order 2016 (SI 2016/1047).

Similar provisions apply to compensation undertakings, the variation or revocation of which is covered by section 15C of the Company Directors Disqualification Act 1986.

The High Court acknowledged academic concern that the new regime conflicted with the Insolvency Act 1986 and the principle of pari passu, which has applied since the mid-nineteenth century.

The court provided directions for allocating the compensation, focussing on specific unsecured creditors whose loss directly benefitted the director by his misconduct, which it considered fair and appropriate on the facts.

The contribution element, for the loss of the company’s assets, was made payable to the Secretary of State rather than the liquidator.

The court analysed the regime, which was designed in the public interest to cover the entirety of the misconduct for which a person may be disqualified under the Company Directors Disqualification Act 1986.

The court held that the regime is free-standing and, as it is based on loss to individual creditors rather than the insolvent company, creates a new cause of action between a director and creditor.

Consequently, there was no direct correlation with the remedies available to creditors under the Insolvency Act 1986.

The judgment is a detailed analysis and explanation of the new law.

 

Sections 15A and 15B read as follows:

 

“(1) The court may make a compensation order against a person on the application of the Secretary of State if it is satisfied that the conditions mentioned in subsection (3) are met…

(3)   The conditions are that-

(a)   the person is subject to a disqualification order… under this Act, and

(b)   conduct for which the person is subject to the order… has caused loss to one or more creditors of an insolvent company of which the person has at any time been a director.

(4) An ‘insolvent company’ is a company that is or has been insolvent and a company becomes insolvent if-

(a) the company goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up,

(b) the company enters administration, or

(c) an administrative receiver of the company is appointed.

(5) The Secretary of State may apply for a compensation order at any time before the end of the period of two years beginning with the date on which the disqualification ordered referred to in paragraph

(a) of subsection (3) was made…

(7) In this section and 15B… ‘the court’ means-

(a) in a case where a disqualification order has been made, the court that made the order…”.

 

Underwoods Solicitors are the solicitors for Crowe UK LLP, the Joint Liquidators of the Cambridge Analytica Group of Companies

Written by kerryunderwood

November 20, 2019 at 2:46 pm

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COURT HAS POWER TO COMMIT FOR CONTEMPT DURING PROTOCOL

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 (08 November 2019)

the Court of Appeal held that false statements in a witness statement verified by a statement of truth, made by a prospective claimant, in purported compliance with a pre-action protocol, can give rise to contempt and be the subject of an application for committal for contempt, even though proceedings were never issued.

The defendants falsely claimed that they had had food poisoning while on a holiday arranged by the claimant and notified the claimant of their claims under the Personal Injury pre-action protocol.

The claimant obtained evidence that the defendants’ claims were untrue and rejected them, and the defendants did not commence proceedings.

The claimant sought an order for the defendants to be committed for contempt.

The lower court judge held that he had no jurisdiction to commit for contempt because, reading together CPR 32.14 and CPR 22, his jurisdiction extended only to witness statements served during the course of proceedings commenced under CPR 7.2 (paragraphs 16-21, judgment).

The Court of Appeal held that the court has an inherent power to commit for contempt irrespective of the CPR (CPR 81.2(3) and Practice Direction 81.5.7;

Malgar Ltd v RE Leach (Engineering) Ltd [1999] EWHC 843 (Ch)

and

Griffin v Griffin [2000] EWCA Civ 119.

It is well established that an act might be a contempt of court even if carried out before proceedings had begun.

The defendants’ conduct interfered with the due administration of justice and the parties’ solicitors believed that they were engaged in complying with the Personal Injury Claims pre-action protocol.

The defendants’ actions intended to give the claimant the impression that the defendants were serious about their case.

Pre-action protocols are “now an integral and highly important part of litigation architecture”.

Producing dishonest witness statement contravenes the Pre-Action Conduct Practice Direction paragraph 4 prohibition against a pre-action protocol and the Practice Direction being used as a tactical device to secure an unfair advantage.

The Court of Appeal said that it was unfortunate both that the situation in the present case fell outside CPR 32.14 and that an application to the Administrative Court for permission to bring contempt proceedings had been required under CPR 81.13(2).

It said that the Civil Procedure Rule Committee should examine the matter.

 

Comment

Quite right. If you engage in any process bringing a claim that you know to be false, you should go to prison.

Simple.

Written by kerryunderwood

November 19, 2019 at 7:39 am

Posted in Uncategorized

PART 36: EVERYTHING IN FULL HOWEVER SMALL THE MARGIN

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Hochtief (UK) Construction Ltd & Anor v Atkins Ltd [2019] EWHC 3028 (TCC)

the Technology and Construction Court, part of the High Court, allowed the claimant the Part 36 bonuses in full, where the claimant beat its own Part 36 offer of £875,000 by just £4,847.

The court awarded indemnity costs from the date of expiry of the time for accepting the offer and interest at 6% above base rate on those costs.

The court also awarded a damages uplift of £65,123.77 in accordance with the statutory formula, and interest on all damages at 6% above base rate.

The decision re-inforces the fact that the starting point is that a claimant who matches or beats its own Part 36 offer, by however small an amount, or indeed nothing where it matches the offer, should get the full Part 36 bonuses.

Written by kerryunderwood

November 15, 2019 at 10:25 am

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CONDITIONAL FEE AGREEMENT DEATH CLAUSE VALID: SIGNATURE HEAVILY LIMITS CHALLENGES

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

Underwoods Solicitors advised the successful appellant Higgins & Co Lawyers Ltd in this matter.

 

In

Higgins & Co Lawyers Ltd v Evans [2019] EWHC 2809 (QB)

the Queen’s Bench Division of the High Court held that the death clause contained in the standard Law Society Model Conditional Fee Agreement, which allows a firm to terminate the agreement on the client’s death and recover basic charges from the estate, is valid and enforceable.

Here, the court at first instance had held that the clause was unenforceable on the basis that it was unusual and onerous and was not fairly and reasonably brought to the attention of the client, that is the now deceased client.

This is a lengthy, thorough, exemplary and very important judgment concerning solicitor – client contracts.

The original client was an 89-year-old man with asbestosis, and he instructed Higgins & Co Lawyers Ltd to bring a personal injury claim and signed a Conditional Fee Agreement in the Law Society Model Form and the relevant clause reads:

 

 “(c) Death

This agreement automatically ends if you die before your claim for damages is concluded. We will be entitled to recover our basic charges up to the date of your death from your estate.

If your personal representatives wish to continue your claim for damages, we may offer them a new conditional fee agreement as long as they agree to pay the success fee on our basic charges from the beginning of the agreement with you”.

 

Here, the client died and Higgins & Co Lawyers Ltd claimed against the estate for its fees.

In relation to the Consumer Rights Act 2015, it was common ground that it applied to the Conditional Fee Agreement as a contract between a trader and a consumer as per section 61 of that Act.

The court held that the death clause was clear and transparent and phrased in simple language and was not hidden and did not require legal training to understand.

Consequently, it was not invalid under section 62 of the Consumer Rights Act 2015.

The original court had held that the clause was unenforceable under the principle set out in

Interfoto Picture Library Limited v Stiletto Visual Programmes Limited [1989] QB (CA).

The court here held that the principle in Interfoto was not concerned with a general doctrine of unfairness in contract law but rather with whether the term had been properly incorporated in the contract.

The court also held that the Interfoto principle did not apply where, as here, the document had been signed. The deceased had willingly signed the Conditional Fee Agreement and had been asked to read it carefully before signing it.

VII. The Interfoto Principle

69. Before turning to the application of the law to the Clause in the CFA, I should summarise the substance of the principle in the modern case law which was reviewed relatively recently by the Court of Appeal in Goodlife Foods Ltd v Hall Fire Protection Ltd[2018] EWCA Civ 1371, [2018] BLR 491 at [32-33]. The basic principle, as restated at [29], is that:

“i] is a well-established principle of common law that, even if A knows that there are standard conditions provided as part of B’s tender, a condition which is “particularly onerous or unusual” will not be incorporated into the contract, unless it has been fairly and reasonably brought to A’s attention.”

70. Paragraph 13-015 of Chitty on Contracts (38th ed. 2018) summarises the relevant principle as follows:

“Although the party receiving the document knows it contains conditions, if the particular condition relied on is one which is a particularly onerous or unusual term, or is one which involves the abrogation of a right given by statute, the party tendering the document must show that it has been brought fairly and reasonably to the other’s attention.”

71. In Goodlife, the Court cited with approval Bingham LJ’s dictum in Interfoto that;

“The more outlandish the clause the greater the notice which the other party, if he is to be bound, must in all fairness be given.”

72. In assessing the correctness of the Master’s decision, the first question is whether the Clause was “onerous or unusual” (and, if so, how “outlandish” it is). The second is, if it is, whether it has been fairly and reasonably brought to the other party’s attention

73. It is clear that “onerous or unusual” is a high standard. The authorities also refer to like terms as “unreasonable and extortionate”, “particularly onerous”, “outlandish” and “Draconian”: Goodlife Foodsat para. 33. In another case such clauses are referred to as being like a “penalty”: Woodesen v Credit Suisse Limited [2018] EWCA Civ 1103, per Longmore LJ at para. [42]. Although not cited by the parties, one can add to this Rix LJ’s description of terms within the doctrine as being clauses which are “very onerous, unreasonable and extortionate”: HIH Casualty and General Insurance v New Hampshire Insurance Co Ltd[2001] EWCA Civ 735[2001] 2 Lloyd’s Rep 161, para. [211]. One is looking for something out of the ordinary and which would cause serious fairness concerns.

74. For reasons which will become apparent, I will take the two requirements (“onerous or unusual” and “fairly and reasonably brought to the party’s attention”) in reverse order and start with the second which I label the “attention/notice requirement”.

Interfoto: “the attention/notice requirement”

75. As to this issue, the Master was regrettably deprived of the benefit of any authority or argument on this point. In particular, she was deprived of reference to the well-established principle that a party who signs a document knowing that it is intended to have legal effect will generallybe treated as being bound by its terms and will be taken to have read them and be on notice of them – at least absent the case being an extreme one where there is cogent evidence of the signature being obtained under pressure or by some other improper conduct.

76. I refer in this regard to L’Estrange v Graucob[1934] 2 KB 394, Ocean Chemical Transport Inc v Exnor Craggs Ltd[2000] 1 All ER (Comm) 519 and Do-Buy 925 Ltd v National Westminster Bank PLC [2010] EWHC 2862 (QB). I also find assistance in the Peekay case which was not cited to me but addresses the issue of signatures and was cited in Do-Buy 925 Ltd.”

The court also made the important point that a Conditional Fee Agreement does not have to be signed and “the signature was not therefore included merely as some general statutory requirement, but is instead included specifically to record the client’s assent to the terms of the agreement and his confirmation that he has read, understood and agrees to all of those terms”. (Paragraph 85)

At paragraph 101, in a key statement, the court said:

“(iii) … Without the ability to have terms which protect the solicitor in certain circumstances (be it death, or client ceasing to instruct otherwise), one can identify why some solicitors would not be prepared to enter into such agreements and access to justice – and in consequence, consumers rights generally – would be impaired”.

 

Comment

This is a very important and valuable decision and should put an end to many technical challenges to solicitor and own client retainers.

It is also very clearly at odds with the ludicrous, wrong and unintelligible decision of the Court of Appeal in

Herbert v HH Law Ltd [2019] EWCA Civ 527

and the extremely thorough and well-argued decision here is obviously right and the Court of Appeal is obviously wrong.

Importantly the court here rejected the submission that the clause was “onerous or unusual and held that the court at first instance had erred saying:

“Whether based on that model or on solicitors’ own variations of that model, it is not merely a, but the usual clause relating to the consequences of death in the context of a CFA and one which has been used in countless personal injury claims, including mesothelioma claims. Accordingly, it cannot properly bear the description of being “unusual”.”

That must be right.

However, in Herbert v HH Law Ltd the Court of Appeal proceeded on the basis of a concession made, very clearly wrongly in my view, by junior counsel for HH Law Ltd that an irrecoverable success fee could be regarded as a cost of an “unusual nature or amount”.

Given that Parliament has ruled that all success fees are irrecoverable, except now in mesothelioma claims, and given that all success fees were irrecoverable before the change in the law in 2000, since repealed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it is utterly absurd to say that an irrecoverable success fee is a cost of an unusual nature.

It is prescribed by Parliament.

The key paragraph from the decision in

Herbert v HH Law Ltd [2019] EWCA Civ 527

is paragraph 35:

“There is no longer any dispute between the parties in relation to CPR 46.9(3)(c). The Judge recorded (at [27]) that Mr Andrew Hogan, counsel for HH before him and junior counsel for HH before us, accepted that an irrecoverable success fee could be regarded as a cost of an “unusual nature or amount” but had submitted that, as the retainer made it clear that the success fee could not be recovered from the other party, the condition in CPR 46.9(3) (c)(ii) was not satisfied, and so there was no presumption under CPR 46.9(3)(c) that it was unreasonably incurred. The Judge agreed with that submission (at [47]). There is no respondent’s notice challenging that decision.”

It is well established that a finding made on the basis of a concession is of limited authority, and a concession was made in the original High Court decision in Herbert as well, and it is strongly arguable that the decision now given in

Higgins & Co Lawyers Ltd v Evans

takes precedence over a ruling made on the basis of a very obviously wrong concession.

Herbert v HH Law Ltd is wrong on so many levels, and I will blog about it shortly, but this aspect alone appears to strip the decision of any meaningful authority.

The factual matrix is that the model adopted by HH Law Ltd was accepted by everyone to be extremely common within the personal injury field, and could not therefore have been unusual.

 

Signature

Another important matter arising from the decision here is that the client’s signature on an agreement makes it very much harder for the client to challenge the agreement.

There is no legal requirement that a Conditional Fee Agreement be signed, just that it must be in writing, but always should insist that any Conditional Fee Agreement, or indeed any solicitor – client retainer, be signed by the client and should refuse to act if the client refuses to sign the retainer.

Higgins & Co Lawyers Ltd deserve the thanks of the profession for pushing this matter forward at considerable financial risk to the firm.

 

Underwoods Solicitors advised the successful appellant Higgins & Co Lawyers Ltd in this matter.

Written by kerryunderwood

November 15, 2019 at 8:11 am

Posted in Uncategorized

DATA PROTECTION UPDATE

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

Damages Re Misuse of Data

In

Aviva Insurance Ltd v Oliver [2019] EWHC 2824 (Comm)

an intermediary who illegally purchased data from an employee of Aviva and sold it to claims management companies was ordered to pay £108,000 damages to Aviva, representing the costs of a team set up by Aviva to investigate misuse of the policy holders’ data.

 

Data Protection Hearings: Practice Direction

Certain Data Protection issues are heard by the First-tier Tribunal (General Regulatory Chamber).

These include:

(a) appeals against penalty notices (section 162 (1)(d) of the Data Protection Act 2018);

(b) orders to progress complaints (section 166(2) of the Data Protection Act 2018);

(c) certifying an offence to the Upper Tribunal (section 202(2) of the Data Protection Act 2018).

The Senior President of Tribunals is responsible for determining the composition of the panels to hear these matters.

The Senior President has issued a Practice Direction as follows:

A decision that disposes of proceedings or determines a preliminary issue in must be made by one judge, or where the Chamber President considers it appropriate, one judge and one or two other members.

Where the Tribunal has given a decision that disposes of proceedings (“the substantive decision”), any matter decided under, or in accordance with, rule 5(3)(l) or Part 4 of the 2009 Rules or section 9 of the Tribunals, Courts and Enforcement Act 2007 must be decided by one judge, unless the Chamber President considers it appropriate that it is decided either by:-

a. the same members of the Tribunal as gave the substantive decision; or

b. a Tribunal, constituted in accordance with paragraphs 4 to 14 comprised of different members of the Tribunal to that which gave the substantive decision.

Any other decision, including striking out a case under rule 8, making an order by consent under rule 37 or giving directions under rule 5 of the 2009 Rules (whether or not at a hearing), must be made by one judge.

Where the Tribunal consists of two or more members the “presiding member” for the purposes of article 7 of the 2008 Order will be the judge.

 

See –

PRACTICE DIRECTION: PANEL COMPOSTION FOR NEW APPEAL RIGHTS IN THE FIRST-TIER TRIBUNAL (GENERAL REGLATORY CHAMBER)

 

Underwoods Solicitors are the solicitors for Crowe UK LLP, the Joint Liquidators of the Cambridge Analytica Group of Companies

Written by kerryunderwood

November 14, 2019 at 7:08 am

Posted in Uncategorized

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