The Dekagram: 8th June 2026

This week Anirudh Mandagere gives us the most lucid explanation we have yet seen of the decision of the Supreme Court in Attorney General for Northern Ireland’s Reference [2026] UKSC 16 relating to deprivation of liberty. We also bring news, from Robbie Parkin and Dominique Smith respectively, of two case management decisions, one involving a quite extraordinary set of facts and the other a tragic case in which there can be no winners.

The impact of Attorney General for Northern Ireland’s Reference [2026] UKSC 16 on personal injury practitioners

Introduction

The Supreme Court’s ruling in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (“Northern Ireland Reference”) has sent shockwaves for those engaged in Court of Protection practice. Over a decade of received understanding on deprivation of liberty has been overturned, and practitioners have to grapple with the implications for the most vulnerable in society.

But it is not only Court of Protection practitioners who are affected. Those practising in personal injury and clinical negligence (and particularly catastrophic injury) will have to grapple with the implications in respect of local authority care. This article set out the background, judgment and the implications for personal injury and medical practitioners.

Background

Prior to Northern Ireland Reference, the law on deprivation of liberty was governed by the Supreme Court’s judgment in P v Cheshire West and Chester Council [2014] UKSC 19 (“Cheshire West”). In summary, Lady Hale set out that the test for a deprivation of liberty under Article 5 ECHR was that the person concerned was “under continuous supervision and control and was not free to leave”. It mattered not that a person who lacked mental capacity was content with the restrictions on their liberty.

The result of this was that many elderly and mentally disabled people were required to have the benefit of safeguards and reviews to ensure that their living arrangements were indeed in their best interests. The number of Deprivation of Liberty Safeguards (“DOLS”) jumped from 14,346 in 2013 – 2014 to 148,221 after the Supreme Court’s ruling.

In Northern Ireland, the DOLS are accompanied by a Statutory Code of Practice (“the Code”). The Minister sought to revise the Code so as to provide that:

• Not all those who lack capacity to make a decision about their care arrangements applying the test in s.3 of the MCA 2016 should be considered to be unable to give valid consent to confinement.
• Some people can be identified as able to give the necessary valid consent through the expression of wishes and feelings that go beyond mere acquiescence to the confinement
• The statutory procedures applying to authorisation of deprivation of liberty should therefore not apply in such cases

The proposed Code took a different approach to consent than that understood in Cheshire West. In light of this, the Attorney General for Northern Ireland brought a reference to the Supreme Court to allow them to consider whether a reconciliation of the ECtHR requirements and the majority decision in Cheshire West is necessary in order to ensure that the proposed revised Code is within the competence of the Minister.

The Secretary of State intervened in these proceedings urging the Supreme Court to go further. Namely, to conclude that Cheshire West was wrong in identifying an “acid test” as to determine a person was confined.

Judgment

In a landmark ruling, the Supreme Court determined that the majority in Cheshire West had erred in their analysis of Strasbourg’s caselaw regarding the meaning of deprivation of liberty in article 5 and in the interpretation they gave to that term. They decided it was appropriate to depart from their previous decision. In particular, they identified the following:

First, the acid test was wrong in principle. The assessment of whether someone is deprived of their liberty is based on a wide range of factors. These include (a) The degree of supervision and control over the person’s movement, (b) the effect of the restrictions on the individual, (c) the duration of the restrictions, (d) the presence or absence of objections, (e) the ‘relative normality’ of the placement, (f) the purpose of the measures, (g) other relevant rights in play (including Articles 2, 3 and 8 ECHR).

Second, a person who lacked capacity was able to give subjective consent to a deprivation of liberty if they were “conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, [and] manifests their acceptance of the situation they are in.”

Comment

In Secretary of State for Justice v Staffordshire County Council and others [2016] EWCA Civ 1317, the Court of Appeal ruled that where an incapacitated person (“P”) was cared for and accommodated under a private care regime, the deputies and attorneys who administered the personal injury (and deprived P of their liberty) award were required to ensure that the deprivation of liberty was properly authorised by the Court.

However, the ruling was predicated under the auspices of the old Cheshire West test. Those who advise deputies in the management of such an award will need to carefully consider whether the private care package truly represents a deprivation of liberty and whether an application to the Court of Protection is required.

Of course, the jurisdiction of the Court of Protection should not be overstated. It is only in cases where the injured person lacks capacity even to consent to the choice of accommodation and care regime that such an application may be required. As the editors of Kemp & Kemp: Quantum of Damages note at 28-028.1:

“In many brain injury cases, the claimant will lack capacity to litigate and to manage his financial affairs but retain the capacity to select his accommodation (at least broadly) and his care regime”.

Nevertheless, in such cases, parties have to consider the practical reality of the care regime and whether it amounts to a deprivation of liberty such that an application is required. There is therefore greater scope for defendants to argue that such applications are unnecessary in light of the Supreme Court’s ruling. In turn, this gives defendants greater scope to argue that the associated costs of making and receiving such a welfare order are irrecoverable.

About the Author

Anirudh Mandagere was called in 2019 and now has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants. Before joining Deka Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics. He is ranked as a “rising star” (Legal 500) and “up and coming” (Chambers and Partners). He is described as someone who is “always well prepared for the fight”, “clear, knowledgeable and informative to clients”, “very bright”, “a future star…really impressive, very conscientious and level-headed”, with a “kind touch with all clients to give them reassurance and support”.

Kyte v McLaren Automotive Ltd & Anor [2026] EWHC 1126 (TCC), or How not to Draft Particulars of Claim

Be prepared to wince, and more than once. This is a case that should not make for easy reading, from the perspective of either car enthusiasts, accountants, or, of most immediate relevance, lawyers.

Seriatim:

1. The Claimant, a successful businessman, purchased a McLaren sports car (“the McLaren”) in May 2015 for an impressive £1.029m. If that sounds already expensive, bear in mind that the 2026 inflation-adjusted equivalent would be around 40% higher.
2. Just one month later, it was in an accident so severe that it had to be “rebuilt”. For clarity, the Claimant’s own case was that this was a full rebuild, resulting in an effectively ‘new’ vehicle by the end of the process. 
3. The Claimant commissioned the First Defendant to rebuild the McLaren, which they were able to complete over the course of around 7 months, handing the McLaren back to the Claimant only in December 2015.
4. Thereafter, the Claimant commissioned the Second Defendant to undertake “various repair, service, and maintenance works on the McLaren”. The net effect of the rebuild and the Second Defendant’s works was that the vehicle was, by around mid-2017, worth around £2.1 million.
5. On 20 October 2017, the McLaren caught on fire while the Claimant was driving it, and, though he escaped unharmed, was a total loss.

So far, bad enough; but the Claimant’s woes were far from over. The Claimant considered that the First and/or Second Defendants were liable for the loss of the McLaren in either breach of contract, or negligence.

Proceedings were issued on 8 April 2024, some seven years later (it is not made clear why there was such delay, or what, if anything, the parties had to say about the Limitation Act 1980).

Particulars of Claim were not served until 6 February 2025, at the end of a lengthy stay of the proceedings.

The Particulars were flawed, and that was the subject of this decision. Eyre J, in his judgment, courteously acknowledged that neither counsel before him had been involved in drafting the Particulars, and also did not name and shame the draftsperson- whether it was a solicitor, the Claimant personally, or someone else is unclear. If a legal professional, however, they risk an uncomfortable conversation with their insurers.

The kind of errors were those which many practitioners (the author included) will remember being scolded for in law school. The maxim that an advocate “should not simply recite the law, but apply it to the facts” comes to mind.

This the Claimant had failed to do. It was pleaded, for example, that the First Defendant’s rebuild works “were not carried out with reasonable care and skill”, either negligently or in breach of contract, and that the Second Defendant had “failed to properly to investigate the defects in the McLaren”, but without descending to the detail of how this had been done, or what specific failing either Defendant was said to have been responsible for.

This was fatal. CPR 16.4(1)(a) stipulates that the Particulars of Claim “must include (a) a concise statement of the facts on which the claimant relies” and, if the Particulars disclose no reasonable grounds for bringing the claim, the Claim may be struck out under CPR 3.4(2)(a).

Eyre J began by reciting the history recent caselaw on this point, with particular emphasis on King v Stiefel[2021] EWHC 1045 (Comm) at §145-149- i.e. that the Pleadings, while they ought to be minimalist, must be sufficient to allow the parties to understand one another’s case and to adequately prepare for trial; and

and Standard Life Assurance Ltd v Gleeds UK [2020] EWHC 3419 (TCC) at §96, giving a checklist of commonplace considerations.

The Particulars of Claim were described in damning terms. Parts were “markedly deficient”, “hopelessly vague” and the whole was “not adequately particularised” against either Defendant. It is perhaps the lawyers turn to wince at this terminology.

That said, the Particulars were not all uniformly bad. The best was a pleading that the First Defendant “configured and / or bent the hoses circulating flammable liquid around the Vehicle too tightly causing them to come under circumferential strain when under pressure and subsequently fray facilitating a leak of fluid” and that the Second Defendant had failed to diagnose this on inspection. This was far better and certainly gave the court more pause for thought.

Even so, of this, Eyre J said:

v) This particular comes the closest to being adequately pleaded and has given me the greatest cause for thought. However, as Mr Mallet pointed out, in its current form the allegation relates to all and any of the flammable liquids listed in paragraph 9 of the Particulars of Claim and seemingly to all the hoses carrying any of such liquids. Even taking the most favourable view of this averment it is deficient because it does not specify the hoses which are said to have been bent or wrongly configured nor the respects in which they should have been configured or aligned differently.

vi) This also is too vague. For the pleading to be adequate it would have had at the very least to specify what would have been found by a reasonable system of inspection, diagnosing, or testing.

Perhaps more of a stretch than the other findings. One suspects, intending no disrespect to the Court, that this deficiency alone would not have been sufficient to warrant strike out. But it was very far from the only failing.

The pleadings also advanced a claim in res ipsa loquitur, i.e. “that the Fire is itself evidence of negligence; and that the only inference which can be drawn from the circumstances of the Fire is that the First Defendant and/or the Second Defendant was negligent”.

This was given short shrift by Eyre J:

98 The maxim will only come into play and enable the court to find a claim established in the absence of a rebuttal if the occurrence is such as would not have happened without negligence and if the object in question was under the sole control of the defendant at the relevant time. The relevant time for these purposes being the time when the alleged negligence occurred.

Given that it had been around 22 months since the First and more than 6 months since the Second Defendant had handled the McLaren at all, no such inference could be drawn.

The Claimant advanced a number of creative arguments in an attempt to salvage the situation. It was first argued, by reference to Dana UK Axle Ltd v Freudenberg FST Gmbh [2021] EWHC 1751 (TCC) and Ide v ATB Sales Ltd[2008] EWCA Civ 424, that as a result of the Consumer Rights Act 1987, it was necessary only to prove the fact that a defective product had been supplied, and not necessarily what had caused that deficiency; and, therefore, sufficient to plead deficiency but not causation.

The answer to that argument might be thought obvious:

53… What the decision in Dana does indicate is that if the Claimant succeeds in showing that the parts were unsatisfactory or that the [McLaren] was unsafe it will not be necessary for him to prove the mechanism which caused the parts to be unsatisfactory, the [McLaren] to be unsafe, and so forth. However, the fact that he does not have to prove or plead how the parts came to be unsatisfactory does not mean that he does not have to prove and plead the ways in which they were unsatisfactory.

Lastly, an attempt was made to argue that cases of damage by fire are dealt with differently:

54 As [the Claimant] rightly said it is a potential consequence of damage caused by fire that the fire will have destroyed the very material which would have shown how the fire was caused. He submitted that this has been regarded by the courts as justifying a departure from the strict requirements of proof and pleading and to permit the pleading of alternative hypotheses. [The Claimant] coupled this submission with the argument that the court will also modify the normal rules in circumstances where there is an asymmetry of information as between a claimant and a defendant with the former having markedly less information than the latter as to how a particular event occurred or as to the relevant background facts.

But this, if anything, backfired:

61…  There is no special approach which is to be applied in cases of damage by fire. Instead, the court will in particular circumstances be prepared to take a robust approach and to infer that the fire was the result of the breach of contract or negligence alleged. 

And besides:

62 The court’s willingness to draw such inferences in an appropriate case does not remove the need for a claimant to identify, plead, and prove the relevant failing…

The net result was that the Claim was struck out. Eyre gave thought to allowing the Claimant to replead, but ultimately decided not to do so- the passage of time since both the events giving rise to the claim, and the issue of the claim, were the main considerations.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

Appealing Case Management Decisions: Monk and ors v Cape Intermediate Holdings Ltd (1) Cape Building Products Limited (2)

Recently, the High Court were tasked in Monk and ors v Cape Intermediate Holdings Ltd (1) Cape Building Products Limited (2) with considering whether to grant an appeal in relation to a case management decision to limit a trial window. As our avid readers know, appealing a case management decision requires a high threshold to be crossed, and in this instance, the Claimants were not successful in doing so.

Factual background

The appellants were five (formerly six) Claimants in asbestos product liability claims. The remaining claims were all fatal accident claims in respect of the death of workers (“the Deceased”) in the building and allied industries who, it was alleged, worked with Asbestolux, a proprietary asbestos insultation board manufactured by the Defendants. The Deceased all developed mesothelioma. The central allegation of the claims was that the Defendants manufactured and sold a dangerous product. Claims had not been brought against an employer, as no insurer for the employers could be identified.

During the course of a case management hearing, the Claimants sought a direction that the trial estimate should be 15 days (which included two days of reading in time), which contrasted the Defendants proposal of a trial estimate of 5 days. The Master expressed during the hearing that the time estimate of 15 days was “ridiculous”. He noted that it was unlikely that the court would hear evidence on exposure from a living Claimant, thus there would be no cross-examination upon the usual issues in contested employers liability exposure cases. The Claimants raised at the hearing that they intended to call 5 other witnesses who were to cover the general knowledge concerning asbestos of those working in the building trade at the time. No witness statements from these witnesses were before the Master. Following submissions, the Master was not satisfied that three days of the time estimate was going to be needed for lay witness evidence. He similarly did not consider that the cross-examination of experts would take as long as the Claimants suggested, nor that four or five days for submissions would be needed. The Master suspected that quantum subject to liability would be “pretty near admitted” by the time of trial and that matters would narrow before trial. He further did not build in a day into the trial estimate for pre-reading. Consequently, the Master allowed an 8 day trial estimate.

The Claimants sought leave to appeal on the following grounds:

1. The judge was wrong to base the trial estimate on the assumption that the issues in dispute would narrow significantly and that no judicial pre-reading would be required. There was no basis to assume that the Defendants would concede issues before trial which had clearly identified as being in dispute in the Defence.
2. The judge was wrong to allow eight days given the evidence to be heard/matters to be determined.

Following the application for leave to appeal, one of the cases had settled, and four witness statements had been served by the Claimants. Disclosure had been given by the Defendants, which consisted of 103 documents, and no disclosure had been provided by the Claimants.

Hearing and Judgment

The matter came before Mr Justice Cotter as a rolled-up appeal hearing. In his judgment, Mr Justice Cotter noted that the Master was highly experienced and sought to bring that expertise to bear to achieve the aims of the overriding objective. He did not accept that the Master fell into error because he failed to recognise that the case was atypical for cases in the Asbestos list. He considered it was an entirely reasonable approach for the Master to adopt, given his experience of managing Asbestos cases (albeit this was an atypical one) to assume that the areas of dispute between the experts were likely to narrow given the number of reports, articles and decided cases that have established core facts in relation to the percentage composition of products, exposure levels and date of knowledge. As a result, the Master was properly able to proceed on the basis that arguments/evidence upon the issues which remained in dispute could be fully presented with an 8 day trial.

As determination of the remaining issues in the case was highly likely to be largely document driven, the Master was again entitled to assume, and factor into his assessment, that those documents would be carefully marshalled by the experts and the respective teams of lawyers pre-trial. Further, the Master did not say that reading time was not necessary; rather, he stated he did not need to build a day in for pre-reading. Mr Justice Cotter considered that the Master clearly envisaged that reading time would be addressed at a future stage. He further considered that the Master weighed up the relevant factors before arriving at an 8 day estimate excluding reading in time, as opposed to the 13 days requested by the Claimants net of reading in time. Consequently, Mr Justice Cotter did not consider that the Master acted outside the generous ambit of his discretion.

As such, whilst permission to appeal was given, the appeal itself failed on the grounds advanced.

Comment

Appealing case management decisions is never an easy task, given the generous discretion afforded to judges in relation to such decisions. In this case, in the light of the Master’s expertise in Asbestos matters, it was always likely in this author’s view to be an even more arduous one. Whilst it is unusual to see an appeal concerning a trial estimate, this case emphasises that the court does not have to accept ether party’s trial estimate and can fully come to their own reasoned decision as to the realistic length of trial.

About the Author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.