Kerry Underwood

Archive for January 2019

CONSENT ORDER TRUMPS FIXED COSTS

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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

Adelekun v Lai Ho Case No: A06YQ205 Central London County Court (18 October 2018)

a Circuit Judge held that in a fixed costs case under CPR 45, Section III A, where the parties had entered into a consent order providing for the claimant’s reasonable costs to be paid on the standard basis, the claimant succeeded in escaping the fixed costs regime.

The judge held that the consent order, following acceptance of a Part 36 offer of £30,000, was incompatible with fixed costs and overruled them and that the Deputy District Judge had been wrong to vary what the parties had agreed.

The relevant wording in the order was:

“The defendant do pay the reasonable costs of the claimant on the standard basis to be subject of detailed assessment if not agreed.”

This wording, in the view of the Circuit Judge on appeal, allowed him to distinguish previous cases such as

Bratek v Clark-Drain Limited, Cambridge County Court, 30 April 2018

where it was held that a consent order settling a fast-track employers’ /public liability claim, and which provided for payment of costs on the standard basis, could not overrule the mandatory provisions of CPR 45.29D.

The facts here were slightly unusual in that the claimant had applied to re-allocate the claim to the multi – track the day before the Part 36 offer was made and the defendant agreed to the terms of the consent order after making the Part 36 offer.

The Circuit Judge held that the costs consequences were consistent with that, and would have been in the parties’ minds when signing the order.

The court suggested that it might have been sensible to include the issue of re-allocation to the multi-track as a term of the consent order.

In fact re-allocation never took place.

The hearing of the application to re-allocate would have taken place within the 21 day period for accepting the Part 36 offer, had the parties not settled.

In

Solomon v Cromwell Group Plc [2011] EWCA Civ 1584 (19 December 2011)

the Court of Appeal held that, as a matter of construction, general rules gave way to specific rules in the Civil Procedure Rules, and therefore the general Part 36 rules gave way to the specific rules in CPR 45, Section II.

True it is that in that case the relevant wording was “reasonable costs” without mention of the standard basis.

It is also correct that in Solomon the Court of Appeal recognised the possibility of the parties agreeing costs outside the fixed costs regime, even in a fixed costs case.

Here, the Deputy District Judge held that that principle applied in this case and that the order to the contrary was ultra vires and should not have been approved by the court.

In

Qader v Esure Services Ltd [2016] EWCA Civ 1109

the Court of Appeal held that fixed costs in an ex-portal case, as here, applied unless and until a matter has been allocated to the multi-track, whatever the settlement value.

That principle was subsequently enshrined by Parliament in an amendment to the Civil Procedure Rules.

A potential, but not actual, allocation to the multi-track is clearly capable of being an exceptional circumstance allowing an escape from fixed costs under CPR 45.29 (J)(1), a point accepted in this case, but that was not the issue here.

Indeed the Deputy District Judge, while holding that fixed costs applied here, specifically left it open for the claimant to argue that there were exceptional circumstances in the case, and these exceptional circumstances provisions are within the fixed costs rules themselves.

In

Sharp v Leeds City Council [2017] EWCA Civ 33 (01 February 2017)

the Court of Appeal held that the costs of an application for pre-action disclosure were governed by the fixed costs regime, although there, there was no agreement apparently to the contrary.

In

Hislop v Perde [2018] EWCA Civ 1726 (23 July 2018)

the Court of Appeal held that late acceptance of a Part 36 offer by a defendant did not allow a claimant to escape fixed costs.

Again, unlike here, there was no issue of contracting out of the fixed costs regime, and in any event many commentators believe that the decision in Hislop is wrong as a matter of law – see my blog

PART 36 AND FIXED COSTS:  CLAIMANTS’ OFFERS POINTLESS RULES COURT OF APPEAL

The Circuit Judge here held that the parties had consensually varied the usual rule, as envisaged in Solomon as being possible, and that the consent order was not vitiated by fraud, mistake, misrepresentation or incapacity,  and indeed it was not suggested otherwise.

He also held that the Deputy District Judge had no power to vary that consent order.

Matters were further complicated by the case of

Conlon v Royal Sun Alliance Insurance Plc [2015] EWCA Civ 92 (26 February 2015)

where the Court of Appeal held that the court had power, even after the end of a case, retrospectively to re-allocate it and thus retrospectively to alter the basis of assessment of costs.

Here the Deputy District Judge declined to re-allocate to the multi-track, which, in the absence of the issue of consensual variation would have left the case firmly caught by the Qader decision.

Comment

I have found this an extremely difficult matter to form a view on and have enormous sympathy with the judges having, yet again, to grapple with the mind-numbing contradictions of the Civil Procedure Rules.

It may be that the case, ultimately, is of limited importance moving forwards, as clearly the defendant’s solicitors were ill advised to leave the matter in any doubt by using the wording in the consent order.

The claimant’s solicitors may have been better advised to have delayed accepting the Part 36 offer until after re-allocation, although that would hardly have been consistent with the overriding objective of saving court time and costs.

It also seems pretty obvious as a matter of contract law that the parties were not, to use the old phrase, ad idem which means a meeting of the minds.

If two parties to a contract understand the terms and conditions of a contract in the same manner, then it is said that the parties are “ad idem”.

Such “meeting of minds” is essential to a valid contract.

How can that possibly have been the case here?

The point was seemingly not argued, – certainly it is not referred to in a very impressive and comprehensive judgment-  possibly because everyone involved seemed to be looking at the issue from a costs and personal injury point of view, rather than basic contract law.

Also, it is not clear why an agreement to pay standard costs in a fixed costs case means anything other than fixed costs.

After all they are the “standard” that is usual, or normal, costs for that type of work.

The true differentiation is between standard costs and indemnity costs, not between standard costs and fixed costs.

Conclusion

There are no score draws at court, or in my blogs.

On balance, but we are talking 51-49, my view is that the Deputy District Judge was right, that the Circuit Judge was wrong, and that the Court of Appeal should reinstate the Deputy District Judge’s decision, that is that fixed costs apply.

My unanimous decision, a 100-0, is that the Civil Procedure Rules Committee is not fit for purpose.

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Written by kerryunderwood

January 24, 2019 at 7:37 am

Posted in Uncategorized

MCDONALD’S LOSES ‘BIG MAC’ TRADE MARK

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

In

Supermac’s (Holdings) Ltd v McDonald’s International Property Company Ltd, 11 January 2019

the European Union Intellectual Property Office revoked McDonald’s Big Mac trade mark for lack of genuine use over a five year period.

Supermac applied under Article 58(1)(a) of the EU trade mark regulations for revocation on the ground that the mark had not been put to genuine use for five years.

McDonald’s said that the mark was genuinely used in Germany, France and the United Kingdom, all currently members of the European Union.

In revocation proceedings on grounds of non-use, the burden is on the trade mark owner and not the applicant, that is the trade mark holder must prove use.

The applicant is not required to prove the negative of non-use.

McDonald’s submitted evidence by way of brochures and printouts of advertising posters, together with printouts from its own websites, and, bizarrely lawyers may think, from Wikipedia.

The Cancellation Division held that this evidence was  insufficient.

McDonald’s had failed to provide third-party evidence and the brochures did not provide details of how they were circulated and whether they had led to any purchases.

In relation to the Wikipedia entry, the Cancellation Division noted that anyone can amend a Wikipedia entry.

Genuine use requires actual use and does not include token use for the purpose of preserving the trade mark.

As well as the evidence above, McDonald’s filed Affidavit evidence from representatives in Germany, France and the United Kingdom.

The Cancellation Division had this to say:

“The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

It is noted that all of the remaining evidence (the Affidavits having been already analysed above) originates from the EUTM proprietor itself, this includes the printouts from the proprietor’s own websites, promotional brochures and packaging. Part of the submitted evidence, that is, the printouts, originate from the internet. The standard applied when assessing evidence in the form of printouts from the internet is no stricter than when evaluating other forms of evidence. Consequently, the presence of the trade mark on websites can show, inter alia, the nature of its use or the fact the products or services bearing the mark have been offered to the public. However, the mere presence of a trade mark on a website is, of itself, insufficient to prove genuine use unless the website also shows the place, time and extent of use or unless this information is otherwise provided.

In particular, the value of the internet extracts in terms of evidence can be strengthened by evidence that the specific website has been visited and, in particular, that orders for the relevant goods and services have been made through the website by a certain number of customers in the relevant period and in the relevant territory. For instance, useful evidence in this regard could be records that are generally kept when operating.”

Comment    

A curious decision.

Written by kerryunderwood

January 23, 2019 at 9:47 am

Posted in Uncategorized

ANOTHER NON-PARTY COSTS ORDER AGAINST AN INSURER

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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

Various Claimants v Giambrone & Law (a firm) and others (defendants) and AIG (Europe) Limited – Section 51 respondent [2019] EWHC 34 (QB)

the Queen’s Bench Division of the High Court made a non-party costs order against the insurers for the defendants.

The claimants succeeded in a professional negligence action against the defendants over legal advice given in relation to the purchase of properties in Italy.

They made an application under section 51 of the Senior Courts Act 1981 for a non-party costs order against the insurers AIG (Europe) Limited.

The judge held that AIG’s funding of the defence increased the claimants’ costs and ordered AIG to pay half of their total costs.

Although success in a section 51 application requires there to be exceptional circumstances, the threshold is lower than it may seem, as in

Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807

the Judicial Committee of the Privy Council said:

“Although costs orders against non-parties are to be regarded as “exceptional”, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such “exceptional” case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against.”

(Quoted at Paragraph 11 of this judgment.)

Here the court said:

“78. In my view, where an indemnity insurer substantially relinquishes control of the conduct of the litigation to the insured (or fails to take steps to control it when there are grounds for intervening), and does so in the expectation that it will be immune from a costs liability towards the opposing party if the opposing party is successful, that expectation is open to be falsified by the court in a section 51 application, particularly if the prospects of success for the insured are assessed as poor.”

Comment

Given that actively controlling the litigation is a key factor in making a non-party potentially liable for costs, we are now close to the position that, in reality, the starting point is that an insurer will be liable for costs, either because it does control, or fails to control, the litigation.

Although this lengthy decision usefully examines in detail the relevant case law, it does not establish any new legal principle.

Written by kerryunderwood

January 22, 2019 at 6:31 am

Posted in Uncategorized

GOOGLE: ACTION FOR DAMAGES FOR BREACH OF DATA PROTECTION ACT FAILS

with 2 comments


Underwoods Solicitors are acting for the Joint Administrators for The Cambridge Analytica Group of Companies

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

In

Lloyd v Google LLC [2018] EWHC 2599 (QB)

the Queen’s Bench Division of the High Court refused the claimant permission to serve the proceedings on Google, permission being needed as Google is a foreign corporation which had not agreed to accept service of the proceedings.

The claimant alleged breach of duty under the Data Protection Act 1998, the allegation being that in 2011/2012 Google secretly tracked the internet activity of Apple iPhone users and collated that information and sold it.

Mr Lloyd was the only named claimant but was suing in a representative capacity on behalf of other people in England and Wales.

No financial loss or destress was alleged and the claim was for compensation for damage and was made under section 13 of the Data Protection Act 1998.

No other remedy was sought.

The claim was for an equal, standard, tariff award for each member of the class, to reflect the infringement of the right, the commission of the wrong, and loss of control over personal data.

In the alternative each class member sought damages reflecting the value of the use to which the data were wrongfully put by Google.

No specific figure was suggested for the tariff, although a range of figures was put forward, and the letter of claim suggested a figure of £750 per potential claimant.

The claimant’s best estimate is that the class comprises 4.4 million people and Google’s estimate of the potential liability is between £1 billion and £3 billion. In its own summary the High Court said that there was no dispute that it is arguable that Google’s alleged role in the collection, collation, and use of data obtained was wrongful, and a breach of duty.

The main issues raised by the application were:

  • whether the pleaded facts disclosed any basis for claiming compensation under the Data Protection Act;
  • if so, whether the court should or would permit the claim to continue as a representative action.

Here, in a judgment running to a 105 paragraphs, the High Court held that the facts alleged in the Particulars of Claim did not support the contention that Mr Lloyd or any of those represented by him had suffered damage within the meaning of section 13 of the Data Protection Act 1998.

In any event, even if it had reached the opposite conclusion, the court would have refused to allow the claim to continue as a representative action because members of the class do not have the same interest within the meaning of CPR 19.6(1) and/or it is impossible reliably to ascertain the members of the represented class and in any event permission to continue the action in this form would be refused as a matter of the court’s discretion.

Section 13 of the Data Protection Act 1998, in so far as relevant, read:

13. Compensation for failure to comply with certain requirements

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.”

Written by kerryunderwood

January 21, 2019 at 7:03 am

Posted in Uncategorized

SOLICITORS’ LIENS, RETAINERS, CFA LITE AND UNCONSCIONABLE CONDUCT – THE HAVEN INSURANCE COMPANY CASE

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

In

Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC21

the Supreme Court upheld the Court of Appeal’s decision that an insurance company was liable to pay the solicitors’ fees where it had settled personal injury claims direct with the clients.

Although the Supreme Court upheld the decision, its reasoning was different from that of the Court of Appeal.

The Supreme Court held that the Client Care Letter had to be read, as far as possible, in accordance with the Conditional Fee Agreement and that both preserved and affirmed the clients’ basic contractual liability to pay the solicitors’ fees.

The solicitor was thus entitled to enforce the traditional equitable lien against the insurance company.

The Court of Appeal had held that the effect of the Client Care Letter was to override the general provisions of the Conditional Fee Agreement, with the result that the clients were not under any personal liability to pay the solicitors’ fees.

The Supreme Court also disagreed with the Court of Appeal’s purported extension of the equitable lien to cases where the paying party has implied notice that fees were outstanding.

The Supreme Court stated that there is no general principle that equity will protect solicitors from any unconscionable interference with their expectations in relation to recovery of their charges, and that in order for the equitable lien to apply, the client must be responsible for the solicitors’ charges.

Thus it is important to notify the other side that there will be fees due to your firm out of any damages and/or costs due to the client and that all damages and costs must be sent to you.

Comment

The case is important for many reasons, apart from its basic conclusion.

As the Supreme Court states in the opening paragraph, the judge-made remedy of the solicitor’s equitable lien is not motivated by any fondness for solicitors as fellow lawyers or officers of the court, but because it promotes access to  justice.

Specifically it enables to offer litigation services on credit to clients who have good cases, but lack the money to pay costs upfront.

This was recognised as early as 1815 in

Exp Bryant [1815] 1 Madd 49:

I do not wish to relax the doctrine as to lien, for it is to the advantage of clients, as well as solicitors; for business is often transacted by solicitors for needy clients, merely on the prospect of having their costs under the doctrine as to lien.”

The Supreme Court said that a lien is “better analysed as a form of equitable charge.”

The Supreme Court also specifically approved “CFA Lite” arrangements “designed to ensure that in no circumstances would the client have to put his hands in his own pocket for payment of the firm’s charges” (Paragraph 7).

The CFA Lite wording here was in the Client Care Letter, rather than the Conditional Fee Agreement, and read:

“For the avoidance of any doubt if you win your case I will be able to recover our disbursements, basic costs and the success fee from your opponent. You are responsible for our fees and expenses only to the extent that these are recovered from the losing side. This means that if you win, you pay nothing.”

The Supreme Court held that this wording did not destroy the basic liability of the client to pay the solicitors’ fees. It merely limited the recourse from which the solicitors could satisfy that liability to the amount of its recovery from the defendant.

It both preserved and affirmed that basic contractual liability, to the full extent necessary to form the basis of a claim to an equitable charge as security.

The Supreme Court said that the insurance company – Haven – knew that the solicitors were looking to the fruits of the claim for recovery of its charges.

The claim of collusion between Haven andthe clients to cheat the solicitor failed “not because Haven backed the requisite intent, but because each of the claimants did.” (Paragraph 49).

“Once a defendant or his insurer is notified that a claimant in an RTA case has retained solicitors under a CFA, and that the solicitors are proceeding under the RTA Protocol, they have the requisite notice and knowledge to make a subsequent payment of settlement monies direct to the claimant unconscionable, as any interference with the solicitor’s interest in the fruits of the litigation. The very essence of a CFA is that the solicitor and client have agreed that the solicitor will be entitled to charges if the case is won. Recovery of those charges from the fruits of the litigation is a central feature of the RTA Protocol.” (Paragraph 50).

The Supreme Court held that before the insurance company could be liable for the solicitor’s costs there must be a retainer between the solicitor and client:

“54. For this purpose I am prepared to assume that an offer of a settlement payment, made direct by the insurer to the claimant, which makes no provision for payment of Stage 2 fixed costs, disbursements and a success fee to the solicitor, at a time when a case has entered and not yet left the scheme, is a breach of paragraph 7.37 of the RTA Protocol. But it creates no legal or equitable rights of any kind, if the client has no responsibility to the solicitor sufficient to support the solicitor’s lien. There is no legal entitlement of the solicitor direct against the insurer which the lien can support by way of security.”

This does not override the decision in

Butt v Nizami [2006] EWHC 159 (QB)

to the effect that the indemnity principle does not apply in fixed costs cases.

For the claimant, or her or his solicitors, to recover costs from the defendant, there must be a valid retainer, which is the point made here by the Supreme Court.

Butt v Nizami held that the terms of that retainer do not restrict the amount of the costs that can be recovered in fixed costs cases, provided that there is a retainer.

The court here appears not to have been referred to the case of Butt v Nizami, and it is notable that none of the most well-known costs lawyers were involved in this case.

Unconscionable is defined  by the Oxford English Dictionary as follows:

  • showing no regard for conscience; not in accordance with what is right or reasonable.
  • Having no conscience; not controlled by conscience; unscrupulous

Press Summary   

Here is the Supreme Court’s own Press Summary of the decision, which is the only time that the Supreme Court or House of Lords has considered the issue of a solicitor’s equitable lien.

Background to the Appeal

Six individuals were involved in road traffic accidents involving vehicles whose drivers were insured by the appellant insurance company, Haven Insurance Company Limited (“Haven”).

They all entered into conditional fee agreements (“CFAs”) with the respondent solicitors firm, Gavin Edmondson Solicitors Limited (“Edmondson”).

Edmondson notified the claims via the online Road Traffic Accident Portal (“the Portal”), in accordance with the Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the Protocol”).

Under this scheme, the solicitors lodge the details of the claim on the Portal, the insurers respond by admitting or denying liability, and then, if liability is admitted, the amount of the damages are negotiated, with recourse to a court hearing if the amount cannot be agreed.

Under the Protocol, the insurer is expected to pay the solicitor’s fixed costs and charges direct to the solicitors.

In this case, however, shortly after the claims were logged on the Portal, Haven made settlement offers direct to the claimants, on terms which did not include any amount for the solicitors’ costs.

Haven told the claimants that they could pay the claimants more, and more quickly, by that route, than by going through the Portal.

All the individuals eventually accepted these offers, and cancelled their CFAs with Edmondson. This practice by Haven has been repeated in many other cases, which are not before the court.

Edmondson claimed against Haven for the fixed costs which it should have been paid under the Protocol.

Specifically, Edmondson sought enforcement of the solicitor’s equitable lien.

This is a form of security for the payment of fees owed by the client for the successful conduct of litigation, paid out of the fruits of that litigation.

Edmondson’s claim was dismissed at first instance.

The Court of Appeal allowed their appeal, holding that, even though the claimants did not have a contractual liability for the firm’s charges, which meant that the traditional equitable lien claim failed, the remedy could be modernised to allow the solicitors to recover from the insurers their fixed costs that should have been paid under the Protocol.

Judgment

The Supreme Court unanimously dismisses the appeal.

Lord Briggs gives the lead judgment, with which the rest of the Court agrees.

Edmondson are entitled to the enforcement of the traditional equitable lien against Haven, as the client owed a contractual duty to pay the solicitors’ charges.

However, the equitable lien should not have been modernised in the manner undertaken by the Court of Appeal.

Reasons for the Judgment

The solicitor’s equitable lien: the existing law

As the early cases demonstrate, the solicitor’s equitable lien was developed to promote access to justice.

It enables solicitors to offer litigation services on credit to clients who, although they have a meritorious case, lack the financial resources to pay up front for its pursuit [1], [33-34].

The equitable lien depends upon:

  • the client having a liability to the solicitor for his charges;
  • there being something in the nature of a fund in which equity can recognise that the solicitor has a claim (usually a debt owed by the defendant to the solicitor’s client which owes its existence to the solicitor’s services to the client); and
  • something sufficiently affecting the conscience of the payer at the time of payment, either in the form of collusion with the client to cheat the solicitor or notice or knowledge of the solicitor’s claim against or interest in the fund [35-37].

Construction of the CFA – does the client have any contractual liability to pay the solicitor’s charges?

The client care letter, which explained that the solicitor would be able to recover its costs from the losing side if the claimants won, so that the claimants would not need to put their hands in their own pockets, did not mean that the claimants were not contractually liable for the solicitors’ fees.

It merely limited the recourse from which Edmondson could satisfy that liability to the amount of its recoveries from the defendant, and it both preserved and affirmed the client’s basic contractual liability.

This was a sufficient foundation for the lien to operate as a security for payment, on a limited recourse basis [40-44].

Did Haven have notice of Edmondson’s lien?

In all the cases before the court, the requirement that the settlement debts must owe their creation to Edmondson’s services provided to the claimants under the CFAs was satisfied on the facts.

Edmondson’s actions in logging the claim on the portal contributed to the settlement in two ways.

First, it supplied the details of the claim to the insurer, and second, it demonstrated the claimant’s serious intention to pursue the claim, and ability to do so with the benefit of a CFA [45-46], [59-63].

Once a defendant or his insurer is notified that a claimant in a road traffic accident case has retained solicitors under a CFA, and that the solicitors are proceeding under the Protocol, they have the requisite notice and knowledge to make a subsequent payment of settlement monies direct to the claimant unconscionable, as an interference with the solicitor’s interest in the fruits of the litigation.

In this case, Haven had notice of the lien because they knew that each of the claimants had retained Edmondson under a CFA, and also knew that Edmondson was looking to the fruits of the claim for recovery of its charges [48-50].

As such, the lien could be enforced against Haven by requiring it to pay the fee amounts in the CFAs direct to Edmondson, but only up to the amount of the agreed settlement payments [65].

To that limited extent the order made by the Court of Appeal needed to be varied.

The re-formulation of the equitable lien by the Court of Appeal

It is not strictly necessary to address this issue in view of the decision on the traditional principle above, but the correctness or otherwise of the Court of Appeal’s reformulation of the principle has been extensively argued, and the Law Society has intervened to support it [51-52].

There are insuperable obstacles to extending the principle to cases where, although there is no contractual liability for the charges, the Protocol is breached.

This includes the fact that the Protocol is purely voluntary and created no debt or other relevant legal rights at all.

Whilst equitable remedies are flexible, they still operate according to principle.

One of the principles of the equitable lien is that the client must have a responsibility for the solicitor’s charges.

There is no general principle that equity will protect solicitors from any unconscionable interference with their expectations in relation to recovery of their charges [53-58].

Written by kerryunderwood

January 18, 2019 at 12:49 pm

Posted in Uncategorized

LAW SOCIETY GAZETTE CENSORS ME OVER BREXIT

with 12 comments


On 16 January 2019 the Law Society Gazette published a piece:

Brexit: Deadlock means new vote or no deal, says Society.

Here, I am not concerned with Brexit, but rather the Law Society, which still has official status, anonymously entering the debate in a blatantly partisan way and the Law Society Gazette anonymously reporting it, so no Law Society official or council member named and no journalist named, and then taking down my comment, which was not anonymous.

I commented at 19.06 and the comment attracted a great deal of support, and some opposition, which is the point of comments and debates.

At some stage in the following 24 hours the Law Society Gazette removed, that is censored the comment, which I set out below.

Another disgraceful contribution by a worthless body, publicized in a largely worthless publication, although I accept that this appalling piece of bias by the Law Society is at least worthy of publicity, unlike much of what appears here.

Some of us are prepared to fight to preserve democracy – I sort of thought that that was part of the role of lawyers.

Whatever your views, please RT this and generally publicize it to make it clear that, whatever our views, there should be freedom of comment in what is after all our publication.

What a state we have come to where the Law Society Gazette censors perfectly legal and decent comments by solicitors.

Judge for yourself.

Written by kerryunderwood

January 18, 2019 at 9:15 am

Posted in Uncategorized

DATA PROTECTION ROUND-UP

with 2 comments


Underwoods Solicitors are acting for the Joint Administrators for The Cambridge Analytica Group of Companies

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

 

Please also see yesterday’s blog – Information Disclosure.

 

Vicarious Liability of Employer for Breach by Data Controller

In

 

WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339

 

the Court of Appeal upheld the High Court’s finding that the supermarket chain Morrisons was vicariously liable for the actions of one its employees in deliberately disclosing confidential data about 100,000 of its staff, evenly though the motive of that employee was to damage Morrisons.

 

Here, the employee had a grudge against Morrisons after he had been disciplined for unauthorised use of its postal facilities for personal use.

 

He carefully planned and executed a scheme to post data of 99,998 employees of Morrisons on a file sharing website and sent details to the press.

 

He was sentenced to eight years in prison.

 

5,000 employees sued Morrisons and the Court of Appeal upheld the High Court’s decision that there was a sufficient connection between the position in which he was employed and his wrongful conduct, so as to create vicarious liability.

 

The court also found that vicarious liability of an employer for misuse of private information by an employee and for breach of confidence by an employee is not excluded by the Data Protection Act.

 

The Act here was the Data Protection Act 1998, but the same principles apply in relation to the current legislation, that is the Data Protection Act 2018.

 

The Data Protection Act was concerned with the primary liability and obligations of data controllers and not with vicarious liability.

 

Here it was common ground that the employee, not Morrisons, was the data controller and Morrisons were vicariously liable for the act of the data controller, that is the employee.

 

Motive is irrelevant and so the fact that Morrisons were vicariously liable for a tort aimed to damage them made no difference.

 

Damages for Loss of Access to iTunes, LinkedIn, WhatsApp etc.

In

Richmond v Selecta Systems Ltd [2018] EWHC 1446 (Ch)

the Chancery Division of the High Court awarded the claimant £1,000 damages for loss of access to his iTunes library and the inconvenience of being unable to access his LinkedIn, WhatsApp and AOL accounts.

The claimant was employed by the defendant and during discussions over his departure, the employer accessed his company supplied laptop and phone and changed the passwords causing the loss set out above as the employer managed to lose the claimant’s iTunes library.

The claimant succeeded in an action for negligence.

The employer was entitled to protect its business interests by discovering whether there was any company information on the phone and iCloud and to delete it, but it was not entitled to alter passwords so as to affect the claimant’s use of his personal accounts.

 

Google: Action for Damages for Breach of Data Protection Act Fails

In

Lloyd v Google LLC [2018] EWHC 2599 (QB)

the Queen’s Bench Division of the High Court refused the claimant permission to serve the proceedings on Google, permission being needed as Google is a foreign corporation which had not agreed to accept service of the proceedings.

The claimant alleged breach of duty under the Data Protection Act 1998, the allegation being that in 2011/2012 Google secretly tracked the internet activity of Apple iPhone users and collated that information and sold it.

Mr Lloyd was the only named claimant but was suing in a representative capacity on behalf of other people in England and Wales.

No financial loss or destress was alleged and the claim was for compensation for damage and was made under section 13 of the Data Protection Act 1998.

No other remedy was sought.

The claim was for an equal, standard, tariff award for each member of the class, to reflect the infringement of the right, the commission of the wrong, and loss of control over personal data.

In the alternative each class member sought damages reflecting the value of the use to which the data were wrongfully put by Google.

No specific figure was suggested for the tariff, although a range of figures was put forward, and the letter of claim suggested a figure of £750 per potential claimant.

The claimant’s best estimate is that the class comprises 4.4 million people and Google’s estimate of the potential liability is between £1 billion and £3 billion. In its own summary the High Court said that there was no dispute that it is arguable that Google’s alleged role in the collection, collation, and use of data obtained was wrongful, and a breach of duty.

The main issues raised by the application were:

 

  • whether the pleaded facts disclosed any basis for claiming compensation under the Data Protection Act;

 

  • if so, whether the court should or would permit the claim to continue as a representative action.

 

 

Here, in a judgment running to a 105 paragraphs, the High Court held that the facts alleged in the Particulars of Claim did not support the contention that Mr Lloyd or any of those represented by him had suffered damage within the meaning of section 13 of the Data Protection Act 1998.

In any event, even if it had reached the opposite conclusion, the court would have refused to allow the claim to continue as a representative action because members of the class do not have the same interest within the meaning of CPR 19.6(1) and/or it is impossible reliably to ascertain the members of the represented class and in any event permission to continue the action in this form would be refused as a matter of the court’s discretion.

 

Section 13 of the Data Protection Act 1998, in so far as relevant, read:

 

13. Compensation for failure to comply with certain requirements

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.”

 

 

 

 

 

 

 

 

 

 

 

 

Written by kerryunderwood

January 17, 2019 at 11:24 am

Posted in Uncategorized

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