Litigation cases review – February 2025

Data class actions  

The Court of Appeal agreed with the court below that a claim for misuse of private information should not be allowed to proceed as an opt-out representative action under CPR 19.8. In order to meet the "same interest" requirement, each member of the represented class must have a realistic prospect of establishing their claim, and that is likely to be a very difficult hurdle to meet in a claim for misuse of private information (Prismall v Google UK Ltd).  

Representative claims

The Court of Appeal upheld a decision to strike out the first attempted securities representative claim under the Financial Services and Markets Act 2000. The court’s discretion to decide when to permit representative claims under CPR 19.8 is unfettered. Here the judge was entitled to conclude that multi-party proceedings would best give effect to the overriding objective. Case management powers would enable the court to determine at an early stage which claimants have valid claims and to facilitate settlement (Wirral Council v Invidior PLC).

Privilege and Norwich Pharmacal orders

The identity of those communicating with a lawyer is not privileged unless disclosing that identity would tend to reveal something about the content of communications with the lawyer or the litigation strategy being discussed. This will usually be the case where the communication is with a potential witness but it was not the case here. Solicitors obtained a report from a consultancy which their client had deployed in litigation against the claimant applicants. The court granted a Norwich Pharmacal order against the firm requiring it to disclose the identity of the consultancy (Filatona Trading Ltd v Quinn Emanuel Urquhart & Sullivan UK LLP).

Open justice

The judge in the Sara Sharif trial had no jurisdiction to anonymise the names of three other judges involved in the historical Children Act 1989 proceedings concerning Sara and her siblings. His decision was subject to serious procedural irregularities including the lack of evidence and submissions on the issue, and reliance on anecdotal evidence and the judge’s personal experience. The integrity of the justice system depends on the judge sitting in public and being named even if they sit in private (Tickle v The BBC).

Costs sanction for misleading court

Claimant litigants in person were penalised in costs for relying on a case summary of a Court of Appeal authority that proved not to exist. It was bad misconduct even if they were unaware that the case was not authentic. Misleading of the court, even if inadvertent, is very serious because it strikes at the heart of the judicial process. On this occasion, the judge decided not to proceed with a summons for contempt of court under CPR 81.6 (Olsen v Finansiel Stabilitet A/S).

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