Top 3 Cases - November 2022
In this series of articles, we aim to highlight 3 of the most interesting cases in our field decided in the past month. This month: validity of a notice to quit, the scope of litigation privilege and requests for further information, and time limits for e-filing.
Our readers may also be interested in this excellent summary by our colleague Stephen Jourdan KC of Old Street Retail Trustee (Jersey) 1 Ltd v GB Healthcare, a case considering rent under s.34 of the Landlord and Tenant Act 1954.
1) O G Thomas Amaethyddiaeth CYF v Turner [2022] EWCA Civ 1446
Summary
The Court of Appeal determined that a notice to quit was invalid due to having been addressed to a person who was not the tenant.
An individual was a tenant of an agricultural holding. Unbeknownst to his landlord, he incorporated a company (of which the registered address was his home address) and assigned his tenancy to the company. The landlord served a notice to quit on the home address, addressed to the individual.
Reversing the decision at first instance and on first appeal, Lewison LJ, with whom Asplin and Nugee LJJ agreed, held that the notice was not saved by the application of the Mannai principle, and was invalid.
Why it’s important
A quarter of a century on from the seminal decision in Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 749, this case illustrates that the boundaries of the doctrine are still being explored. It is not enough simply to ask whether the reasonable recipient of the notice would understand that the landlord was seeking to determine the lease. It was also necessary to show that the notice was given to the tenant. In this case, the landlord’s error in addressing the notice to the individual was not a misdescription of the correct tenant; it was a factual error about the tenant’s identity. Further, the reasonable recipient of the notice would be aware that the landlord was ignorant of the assignment, and therefore would not have understood the notice as referring to the company.
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2) Loreley Financing (Jersey) No 30 Limited v Credit Suisse Securities (Europe) Limited [2022] EWCA Civ 1484
Summary
The Court of Appeal found that while the identities of persons giving instructions on behalf of a corporation were not subject to litigation privilege, it would be unnecessary and disproportionate to require them to be provided under CPR Part 18.
The claimant was an SPV with directors provided by a professional services company. It brought a claim for fraudulent misrepresentation and unlawful means conspiracy. The defendants’ case was that the claimant was in reality a puppet controlled by two German banks, who had knowledge of relevant matters at a date which would mean the claimant’s claim was limitation-barred. The defendants sought to support that contention by means of an application for an order requiring the claimant to disclose the identities of the persons giving instructions on its behalf.
The Court of Appeal found that other than in an exceptional case, the identity of instruction-givers would not be subject to litigation privilege. However, the defendants had sufficient information about the involvement of the German banks to prepare for trial, so the claimant would not be ordered to disclose the information under Part 18.
Why it’s important
As is noted in the judgment, this is the first case considering the specific question of whether the identity of persons giving instructions on behalf of a corporate client is inherently subject to litigation privilege. Approaching the question as one of principle, Males LJ (with whom the other members of the court agreed) emphasised firstly that privilege attaches to communications, not information, and secondly that the purpose of litigation privilege is to enable free and uninhibited communication between lawyer and client. In all but the most exceptional cases, the identity of the person giving instructions would not tend to suggest anything about the content of the privileged communications between lawyer and client, and therefore would not be the subject of privilege.
In addition, the case highlights that further information will not be ordered in relation to matters which are admittedly relevant, if their relevance is peripheral, even in commercial litigation where large sums of money are in issue.
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3) Microsoft Ireland Operations Limited v JJH Enterprises Limited (trading as ValueLicensing) [2022] EWCA Civ 1509
Summary
The Court of Appeal determined that an appellant’s notice filed electronically under the Electronic Working Pilot Scheme (contained in Practice Direction 51O) had been filed on time notwithstanding that it had been filed after 4.30pm on the final day.
Underhill LJ, with whom Stuart-Smith and Birss LJJ agreed, considered that while filing of some physical documents is subject to practical time constraints (where, for example, the relevant office has no post box and is only open during particular hours), in the absence of a particular rule, practice direction or Order dealing with the matter, electronic filing could be done at any time up to midnight.
Why it’s important
The Electronic Working Pilot Scheme will continue to run until 6 April 2023, and therefore this decision may be of practical benefit to other users of the scheme. More generally, however, as electronic working practices continue to be introduced in more and more areas of the court system, this judgment is likely to provide future guidance about how questions of timing are to be approached.
Readers should note that the decision relates solely to electronic filing. Documents filed by email must be filed by 4pm: PD5B paragraph 4.2.
STEPHANIE TOZER K.C.
FERN SCHOFIELD
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