The Weekly Roundup: The Wilde Edition

• Published date: 01 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: 1 Chancery Lane
• Author: Kerry Nicholson and Anirudh Mandagere

According to Oscar Wilde, we are all in the gutter, but some of us are looking at the stars. The team finds this apercu encouraging, particularly when, as this week, we have spent quite a lot of time examining judgments many and varied. Amongst the stars we noted were the publication of the Advocate General's Opinion in Ligue des Droits Humains v Conseil des Ministres, Case C0817/19, in which the AG considered the transfer and processing of Passenger Name Record data, and opined that the transfer and the generalised and undifferentiated automated processing of PNR data are compatible with the fundamental rights to respect for private life and to the protection of personal data. However, a generalised and undifferentiated retention of PNR data in non-anonymised form can be justified only where there is a serious, actual and present or foreseeable threat to the security of the Member State, and only on condition that the duration of such retention is limited to what is strictly necessary. Furthermore, in the AG's opinion, the transfer of data appearing under the heading 'General remarks' laid down by the PNR Directive does not meet the requirements of clarity and precision required by the Charter. If the CJEU agrees, it will be necessary for Member States to review and amend their implementation of the Directive accordingly, and it will be interesting to see how this plays out both in the EU and in the UK.

In another decision of more immediate consequence to litigators, O'Grady v B15 Group Limited [2022] EWHC 67 (QB), Master Thornett came to the perhaps surprising but certainly pragmatic conclusion that the doctrine of common law mistake could apply to a Part 36 offer where a clear and obvious mistake was made, and that mistake was appreciated by the offeree at the point of acceptance. In those circumstances, the offeror could be permitted to withdraw the offer. Finally, in Buttar Construction Limited v Arshdeep [2022] PIQR P3, the Court of Appeal clarified the provisions of CPR Part 25.7 in relation to interim payments where liability is not admitted and the position as to whether the Defendant is insured is unclear.

The Importance of Being Expert: Radia v Marks [2022] EWHC 145 (QB)

Introduction

In 2011, the Supreme Court reversed 400 years of history in Jones v Kaney [2011] UKSC 13, and decided that expert witnesses were not immune from suit. Nevertheless, the difficulties of claiming professional negligence against an expert witness are manifold. In Radia v Marks, the High Court dismissed a claim against a medical expert who gave evidence as a joint expert in employment tribunal proceedings. This judgment also usefully reaffirms the role of expert evidence in civil litigation, and the responsibilities of expert witnesses.

Factual Background

In 2015, the Claimant submitted a claim to the Employment Tribunal, raising complaints of discrimination, harassment and victimisation against his former employer, Jeffries Ltd. The disability in question was Acute Myeloid Leukaemia ("AML"). The claim was dismissed, with the Tribunal finding that the Claimant had intentionally misled them. In particular, one discrepancy was his weight as recorded in the expert report and that recorded in his medical records.

The dismissal of judgment was followed by an application for costs, in which the Tribunal found that the Claimant had acted unreasonably by telling lies which were deliberate, serious and central to the case, concerning his weight following chemotherapy and a holiday in Mexico in May 2011 which he alleged he had been 'forced to miss'.

The Defendant is a consultant in haematology and stem cell transplant. He was instructed in the Tribunal proceedings to report on the effects of AML and its treatment upon the Claimant's condition following his return to work. The Claimant alleged that the Defendant misreported his chemotherapy-related weight loss and then compounded the error by not undertaking a competent review of the medical records. Had he done so, the Tribunal would not have found the Claimant to be dishonest.

Judgment

The claim was dismissed on the grounds of scope of duty, breach and causation. Judgment was given by Mrs. Justice Lambert.

Scope of Duty Question. The issue was whether the Defendant owed a duty to the Claimant to protect him from the risk of an adverse credibility finding. Mrs. Justice Lambert found conclusively that it did not. It was no part of the expert's retainer to advise or assist on...