UK: Insurance And Reinsurance Weekly Update - 2 December 2014

Last Updated: 8 December 2014
Article by Nigel Brook

Prince Abdulaziz v Apex Global Management

Supreme Court confirms that a party, and not its solicitor, should sign the disclosure statement

At a CMC, the appellant was ordered to file and serve a disclosure statement certified by a statement of truth, to be personally signed by him. Although the appellant's duty of disclosure was explained to him by his solicitors, the statement of truth was signed by the appellant's agent (because the appellant is a Saudi prince and, it was claimed, there is a Saudi Arabian protocol that members of the Royal Family should not become involved in any way in litigation). The respondents applied for, and obtained, an unless order, and when the appellant failed to comply with that order his defence was struck out and judgment entered against him. The appellant was subsequently refused permission to vary the order so that his solicitor could confirm on oath that the appellant had given full disclosure.

The Supreme Court (by a majority of 4:1) has now rejected the appellant's appeal against these earlier decisions. In so doing, Lord Neuberger (who gave the leading majority decision), confirmed the view that the party himself should sign the disclosure statement unless there are "good reasons" for someone else to sign. Accordingly, the judge had been correct to consider that a direction that the appellant personally sign the statement reflected normal practice. To have someone other than the appellant sign the statement would be a "real risk to the overall fairness of the proceedings....Everyone else will have put their cards on the table. The Prince will deal through an agent" (as per Norris J, with whom the Supreme Court agreed). The unfairness would be that the appellant could avoid criticism for concealing some relevant communication (when none of the other parties could avoid such criticism).

The Supreme Court dismissed the appeal and refused relief from sanctions, but confirmed that it did not thereby intend to impinge on the reasoning or decisions of the Court of Appeal in Mitchell v News Group Newspapers (Weekly Update 43/13) and Denton v TH White (Weekly Update 26/14).

COMMENT: This case confirms that a client, rather than the solicitor, should usually sign the disclosure statement. Although the Supreme Court recognised that there can be a departure from this position if there are "good reasons", convenience alone may not suffice and hence sufficient time should be allowed to ensure that a client signs the statement, where possible. This decision also makes it questionable whether a solicitor may sign the disclosure statement if, as a result of the way the matter has developed, there is no-one at the client's organisation who has overall responsibility for the search for documents.

Greenway v Johnson Matthey Plc

Whether employees had suffered actionable personal injury – of possible interest to employers' liability insurers

The claimant employees were exposed to complex halogenated platinum salts and as a result had developed sensitivity to platinum. Since this sensitivity can, with further exposure, lead to an allergy, the employees were removed from their regular posts and eventually handed in their notice. Much of the case involved a comparison between platinum sensitisation and pleural plaques. The claimants sought to argue that they had sustained actionable injury because the sensitivity had led directly to a reduction in their earning capacity.

Jay J held that there was no actionable injury in tort in this case. The progression to an allergy would not occur if the employee is removed from the source of the sensitisation. Although such a removal may result in economic loss for the employee, that is not the same as an injury. The sensitivity in itself is not harmful. Accordingly, the claim in tort failed (as did the alternative claim in contract, because there had been no personal injury – only economic loss suffered without personal injury).

Inplayer v Thorogood

Court of Appeal issues strong statement about skeleton arguments/considers procedural irregularities in contempt proceedings

The Court of Appeal allowed an appeal against a finding that the appellant was guilty of contempt of court. This was because there had been procedural irregularities, namely:

(1) The allegations of contempt were not notified to the appellant until after he had been found guilty because the judge went beyond the allegations in the application notice

(2) It had been a serious procedural error to hold the committal application at the same time as other issues about which the appellant had had to give evidence. He had not been told that he had the right to remain silent (instead, he had only been told that he had the right not to incriminate himself)

(3) The appellant had not been told of his right to legal aid

Jackson LJ then went on to comment on skeleton arguments in appeal proceedings. He said that an appellant's skeleton argument should be a concise, user-friendly introduction for the benefit of the three judges who will probably have had no previous involvement with the case. He described the skeleton argument here as "35 pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments". He reminded litigants that a bad skeleton argument hinders the court.

As a result, although the appellant had won, it was held that he could not recover the costs of the skeleton argument from the respondent.

Group M UK v Cabinet Office

Whether an Interested Party can get its costs

One of the issues in this case was whether an "Interested Party" would be entitled to have its costs relating to an application which it successfully supported. Akenhead J held that it was so entitled. Section 51 of the Senior Courts Act 1981 gives the court a complete discretion as to costs and in the House of Lords' decision in Bolton Metropolitan v Secretary of State for the Environment [1995] costs were awarded to an Interested Party. Although it was said in Bolton that an Interested Party will not normally be entitled to its costs unless there was a separate issue on which it was entitled to be heard, there were said to be "special features" in that case (eg the case raised difficult questions of principle arising out of a change of government policy).

Here, the Interested Party was said to be entitled to its costs because it had had "a very serious and fundamental commercial interest in the outcome of the proceedings" and it was important that it support the application. Two key witness statements were provided by the Interested Party and these had been prepared by its solicitors (the statements covered an issue which had to be addressed and about which these witnesses had specific knowledge).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nigel Brook
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