Dishonest assistance claims
The normal primary limitation period of six years applies to claims against a dishonest accessory to a fraudulent breach of trust where the defendant is a stranger who dishonestly participates in the breach of trust and is unaffected by a pre-existing trust relationship. There is no limitation period for claims against the fraudulent trustee. (Cattley v Pollard 7 December 2006)
Reinstatement or diminution in value?
Where a claim is made in respect of a chattel which has been destroyed negligently by a third party, the claimant will only be entitled to the replacement value where it is reasonable to replace the chattel and the cost of replacement is reasonable. In practice, the cost of reinstatement will only be awarded where the claimant intends to reinstate the chattel. (Aerospace Publishing Ltd v Thames Water Utilities Ltd CA 11 January 2007)
Costs claimed as damages
Where damages payable by negligent solicitors include legal costs incurred by the client in litigation resulting from the solicitors’ negligence, these costs should be assessed on the standard and not the indemnity basis. (Redbus LMDS Limited v Jeffrey Green Russell 17November 2006)
Without prejudice and mediation
The fact that an expert joint statement was prepared for the purpose of a mediation, as ordered by the court, and used for that purpose did not prevent it from being used in the proceedings which followed. The statement was made pursuant to CPR 35.12 and was not therefore privileged, nor did it acquire without prejudice status because it was used in the mediation. (Aird v Prime Meridian Ltd CA 21 December 2006)
Where a case concerns a recondite area of fact such as trading in Russian debt in the 1990s which appears to be outside the “normal” experience of a Commercial Court judge, this is not reason enough to engage experts. When an issue requires the construction of a document, expert evidence is only required where the contract uses technical expressions which are outside the expertise of the judge. (JP Morgan Chase Bank v Springwell Navigation Corp 3 November 2006)
From 6 April 2007 admissions made before proceedings start will be given equal weight to those made during proceedings and cannot be withdrawn without the court’s permission. A pre-action admission is defined in the new CPR 14 as one made after the defendant has received a letter of claim in accordance with the relevant preaction protocol or one made before a letter of claim has been received, but which is stated to be made under CPR 14.
Fraud Act 2006
This Act, which came into force on 15 January 2007, creates a new general offence of fraud which can be committed in three ways: by false representation, by failing to disclose information, and by abuse of position. The offence of abuse of position will be particularly relevant to professional advisers and agents, whether or not they owe a fiduciary duty to their client.
European competition inquiry
The European Commission has published its interim report on the inquiry into the business insurance sector. Market fragmentation is a serious issue and the report highlights several factors that may adversely affect competition. Comments on the report are invited before 10 April 2007.
Pleural plaques litigation
The claimants’ appeal in the pleural plaques case, Rothwell v Chemical & Insulating Co Ltd, will be heard by the House of Lords from 25 June to 2 July 2007.