Given the, quite remarkable, events of 2020, you may be forgiven for thinking that it was a quiet year for litigation. In fact, we saw some significant decisions coming from the Supreme Courts as well as from the courts below.

In February the Supreme Court refused the MIBs application for permission to appeal the Court of Appeal's decision in Lewis v Tindale, MIB & others [2019] EWCA Civ 909; As a result, the MIB and its member insurers will be obliged to meet the cost of uninsured claims which arise from incidents on private land.

April saw two judgements issued in relation to vicarious liability, WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 and Barclays Bank plc v Various Claimants, [2020] UKSC 13 which challenged the widely held view that the liability had expanded materially and it seems that , in fact, the scope of vicarious liability remains largely constrained by its traditional limits.

In October in Henderson v Dorset Healthcare University NHS Foundation Trust UKSC 2018/0200 the Supreme Court held that an NHS trust, although negligent in not returning Ms Henderson to hospital, was not responsible for Ms Henderson's actions in killing her mother. The Court held that the claim was barred by illegality because the damages arose from the sentence imposed on her by the criminal court and from her own criminal act.

Also in October the Court of Appeal's decision in Swift v Carpenter [2018] EWHC 2060 provided a long-awaited "solution" to the accommodation claims conundrum. Since the discount rate became negative, the old approach, set out in Roberts v Johnstone, produced a nil award for claimants. In Swift, the Court of Appeal held that the best approach, in the majority of cases, is to value the claim by deducting the value of the revisionary interest in the property from the capital costs of its acquisition. The revisionary interest is to be valued using a discount rate of +5%. As compared to the Roberts v Johnstone approach; awards will generally be higher. The Court of Appeal refused permission to appeal and it is currently unclear whether the defendant will renew its application at the Supreme Court. The "solution" in Swift may not however be suited to every case and we expect to see further litigation and judicial comment here.

November saw the High Court issue a potentially significant decision in relation to the payment of recoverable benefits. In R (o.t.a. of Aviva and Swiss Re) v The Secretary of State for Work and Pensions 2020 ECHC3118 (Admin), the claimants argued that changes in the law governing insurers' liability for disease claims had rendered the Social Security (Recovery of Benefits) Act 1997 incompatible with the insurers' Protocol 1, Article 1 rights; the right to enjoy property peacefully. The High Court found that the operation of the 1997 Act, as impacted by changes to the way in which liability for longtail disease claims attaches, did breach the insurers' Article 1 Protocol 1 rights. This was an administrative decision which did not consider claims for damages. However it seems that it may well prove useful in the future when an insurer's liability for benefits is out of proportion to the extent of its liability for the claim itself.

In the case of Lewis v Wandsworth Borough Council [2020] EWHC 3205 (QB) the local authority succeeded in having the claim dismissed where the claimant ought to have known that cricket was being played and there was a risk of being struck with a hard ball.

And of course, also in November, the Supreme Court heard the appeal of six insurers in the "FCA test case", judgment is awaited and will determine the treatment of policyholders who are seeking to rely upon business interruption cover for losses incurred as a result of the COVID-19 pandemic.

Scottish Courts

North of the border in Scotland the courts have also given useful guidance in a number of areas.

In T v The English Province of the Congregation of Christian Brothers [2020] SC EDIN 13 the Sheriff Court provided valuable guidance on the likely level of damages for historical child abuse claims. Despite the introduction of the Limitation (Childhood Abuse) (Scotland) Act in 2017 which extended the time limits for these claims there have been relatively few reported decisions of damages awarded for historic abuse and this remains a developing area of law. It is anticipated that once Qualified One Way Cost Shifting (QOCS), introduced by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, comes into force, there may be an increase in the number of these claims litigated. That is because in most cases QOCS will remove the requirement for unsuccessful claimants to pay the defender's legal costs.

There have also been a number of decisions which consider the operation of pre-litigation offers, tenders and pursuer's offers when it comes to determining expenses.

In Susan Keenan v EUI Limited [2020] CSOH the pursuer accepted a tender for £43,500 in an action which had been raised for £1.25 million. The sum tendered had been offered but withdrawn pre-litigation. After the claim was litigated, the defender produced surveillance and argued it showed the pursuer having been dishonest about the extent of her injury and also prompted her to accept the tender. Lord Weir concluded that the acceptance of a tender which offered the expenses of process to date would not prevent the court from modifying those expenses to nil. However he was unwilling to do so in this case. He noted that it would be very unusual, albeit not impossible, for the court to make a finding of factual dishonesty without going to proof and hearing evidence on the issue. In refusing to modify the claimant's expenses to nil he concluded that he did not have sufficient material with which to conclude that the claimant was dishonest during the course of the litigation and therefore no reason to depart from the usual operation of the rules of expenses surrounding tenders. He also found that for a pre-litigation offer to be relevant to expenses it should be re-iterated at the point the action was raised and bring with it an offer to meet the claimant's expenses.

In Usman Akmal v Aviva Insurance Limited [2020] EDIN 33, the defender re-iterated a pre-litigation offer by way of tender when the action was raised. Thereafter the pursuer introduced an extra head of claim, the tender was increased accordingly and then accepted. Sheriff McGowan allowed the claimant expenses only to the date of the first tender, with the defender being entitled to expenses thereafter. It was Sheriff McGowan's view that it was right to restrict the claimant's expenses in this way because it was the claimant's unreasonable behaviour which had led to the litigation being longer and more costly than was necessary. However Sheriff McGowan was unable to go as far as to say that the action would have settled pre-litigation had all of the relevant information been available.

And finally, not a decision, but key to many claims we cannot forget that the long awaited and much anticipated Ogden 8 was published on 17 July 2020, almost 10 years since Ogden 7 was published. Headline differences include the addition of eight new tables for loss of earnings and pension together with additional tables which assist when the interpolation of multipliers is required. There has also been a reduction in mortality rates. Overall Ogden 8 provided some much needed updating of the previous tables and are useful to those in practice working with the tables in claims involving future losses.


Kate Donachie

Legal Director