PI & Clinical Negligence analysis: In a recent decision the Court of Appeal gave guidance as to how practitioners and the courts should approach requests for anonymity orders pending the forthcoming substantive decision in PMC v A Local Health Board. Permission was also given for the Personal Injury Bar Association (PIBA) and the Official Solicitor to intervene in the substantive appeal, when it is heard following the forthcoming decision of the Supreme Court in Abbasi v Newcastle Upon Tyne Hospitals NHS Foundation Trust and others. Written by Sarah Prager KC, barrister at Deka Chambers.

Dispute Resolution analysis: The High Court has refused a class-wide anonymity order sought by 2,502 claimants in a data breach action arising from an alleged compromise of Ministry of Defence-related personal data. Mr Justice Saini held that the claimants had failed to provide the clear and cogent evidence required to justify a derogation from the principle of open justice. The judgment emphasises that data breach claims are not a special category for anonymity purposes and that broad assertions about security risks, privacy concerns, or distress will not suffice. Practitioners seeking anonymity in group litigation must provide claimant-specific evidence and should also consider narrower, targeted protective measures instead.

Dispute Resolution analysis: The High Court held that a claimant, who had sought an interim and final anonymity order in respect of their claim, could not do so. This was (in part) due to the claimant's prior engagement with journalists which had led to articles about the claimant's condition, the subject of the substantive proceedings, previously being published and being publicly available online. The court explored the balancing exercise that must be undertaken when exercising their discretion to grant an anonymity order in respect of Article 8 of the European Convention on Human Rights (ECHR), rights to a private and family life, and Article 10 ECHR rights to freedom of expression. It held that it was for a claimant to persuade the court that it should depart from the standard position that court proceedings should be public and so promote access to justice in favour of granting any anonymity order. In this, the court disagreed with the reasoning in the Court of Appeal decision JX MX, and preferred that of the Supreme Court in Khuja v Times Newspapers Ltd, and that of the House of Lords in In Re S. Written by Iain Blackwell, associate at Trowers & Hamlins LLP.

A service which prevents calls from being connected or put through where a caller has withheld CLI.

The GDPR regimes do not apply to anonymous data, ie ‘information which does not relate to an identified or identifiable natural person’ or ‘personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable’. Therefore, truly anonymised data does not constitute personal data for the purpose of either GDPR regime. The ICO produced a code of practice in relation to anonymisation, which, although prepared under the previous Data Protection Act 1998, may still be useful. For more information, see ICO Code of Practice: Anonymisation: managing data protection risk

Private Client analysis: Declarations were sought by NHS Trusts under the Mental Capacity Act 2005 (MCA 2005) that LV, a 20-year-old woman, lacked mental capacity to conduct proceedings and make decisions about her care and treatment, and that it was lawful and in LV’s best interests to undergo feeding whilst sedated within the Intensive Therapy Unit (ITU). LV was detained and receiving treatment under section 3 of the Mental Health Act 1983 (MeHA 1983) on an eating disorder unit for anorexia nervosa, which included being restrained and force-fed with a naso-gastric tube. This treatment was not successful as, in summary, LV would regurgitate most, if not all, of the feed meaning that she was losing body weight. The medical evidence demonstrated that absent this step being taken, LV would die within days or weeks. This was an urgent application and there was insufficient time for the Official Solicitor to obtain LV’s wishes and feelings directly. The Official Solicitor had consented to the application after hearing the evidence which included oral evidence from four consultants. Written by Sophie Caseley, barrister at Garden Court Chambers.

EU law analysis: Miryam Boston, Senior Associate of Fieldfisher LLP considers the Court of Justice’s decision on Article 3(1) of the Directive (2001/29/EC) (EU Copyright Directive) regarding the scope of liability for communicating a copyright work to members of the public in Citadines v MPLC Deutschland GmbH (C 723/22). Boston also analyses the Court of Justice’s assessment and provides commentary.

A company subject to an employee ownership trust (EOT) may still grant share options, including in principle enterprise management incentives (EMI) options, company share option plan (CSOP) options and/or save as you earn (SAYE) scheme options, if it satisfies all of the respective relevant statutory conditions. In particular in this context, a company is treated as meeting the independence requirement for EMI purposes if it is subject to an EOT, and shares in a company which is subject to an EOT are eligible shares for CSOP and SAYE purposes. See Practice Notes: EMI—qualifying companies — Independence test, CSOP—qualifying companies and qualifying shares and SAYE—companies which qualify to operate an SAYE scheme. Where a controlling interest in a company is sold to an EOT that meets all of the statutory conditions (referred to in the legislation as the ‘relief requirements’), then certain tax benefits will be available,

Arbitration analysis: This case involved an application to Commercial Court of the City of St Petersburg and Leningrad Region (the ‘Russian Court’) to prohibit continuation of legal proceedings in a foreign court and in the international arbitration, seated outside RF. The claimant, a Russian company, commenced proceedings in the Russian Court against the respondent, a German bank, for breach of contract, despite the existence of the valid ICC arbitration agreement between the parties. The respondent, who commenced an ICC arbitration against the claimant, obtained an anti-suit injunction from the English court. However, the Russian Court proceeded to uphold the claimant’s claim, and, furthermore, awarded the claimant its application for an anti-suit injunction against the respondent, as well as ordered the respondent to pay punitive damages to the claimant in the event of non-compliance with the Russian Court’s order. Written by Irina Tymczyszyn FCIArb, arbitrator and counsel, Tymczyszyn Arbitration.

Arbitration analysis: The Svea Court of Appeal has declared an arbitral award between the Kingdom of Spain and a Luxenbourg-based venture capital fund invalid, as it was rendered in an investment dispute between a Member State (Spain) and an investor from another Member State (Luxembourg) and therefore deemed incompatible with the basic principles of the Swedish legal system. The judgment represents the most recent Swedish judgment concerning annulled arbitral awards. However, it is anticipated that further similar judgments will emerge following the Court of Justice of the European Union’s (Court of Justice) rulings in Achmea, Komstroy and PL Holdings. Written by Andreas Johard, partner in Hammarskiöld’s team for litigation and arbitration, and Adam Runestam, associate at Hammarskiöld’s team for litigation and arbitration.

Arbitration analysis: The Svea Court of Appeal has declared an arbitral award between the Republic of Italy and investors invalid, as it was rendered in an investment dispute between a Member State (Italy) and investors from other Member State (Luxembourg and Denmark) and therefore deemed incompatible with the basic principles of the Swedish legal system. The judgment represents one of the most recent Swedish judgments concerning annulled arbitral awards and upholds previous rulings of the Swedish courts. Written by Andreas Johard, partner in Hammarskiöld’s team for litigation and arbitration, and Omar Cutuna, associate at Hammarskiöld’s team for litigation and arbitration.

Arbitration analysis: The Svea Court of Appeal has declared invalid an arbitral award between the Kingdom of Spain and five companies, incorporated in Luxembourg, Italy and Denmark, (the ‘Investors’), as it was rendered in an investment dispute between a Member State (Spain) and investors from other Member States (Luxembourg, Italy and Denmark) and, therefore, deemed incompatible with the basic principles of the Swedish legal system (ordre public). The judgment represents one of the most recent rulings from Svea Court of Appeal in a series of intra-EU investment cases in which arbitral awards have been annulled due to incompatibility with Swedish ordre public. It can be noted that the Svea Court of Appeal continues to follow the Court of Justice rulings in Achmea, Komstroy and PL Holdings, and we can therefore expect further similar judgments with the same outcome. Written by Andreas Johard, partner in Hammarskiöld’s team for litigation and arbitration, and Mikaela Grimstig, associate at Hammarskiöld’s team for litigation and arbitration.