The Dekagram: 6th July 2026

This week Bethany Hutchison considers a recent Court of Appeal decision on negligence by omission, and Sarah Prager KC examines how to deal with multiparty claims. If you missed the recent dekinar on claims arising from carriage by sea and air presented by Sarah and Anirudh Mandagere the recording is available here and we recommend it as much for the insightful contributions made by attendees as for the presentation itself.

Sintes v Tower Hamlets: Don’t forget the baseline

Even the most experienced practitioner knows that when things feel overly complex, it pays to go back to first principles and all usually becomes clear. The Court of Appeal’s judgment in Sintes v London Borough of Tower Hamlets [2026] EWCA Civ 752, handed down on 17 June 2026, is a masterclass and an excellent reminder of the modern law on omissions.

Stuart-Smith LJ emphasised a simple but powerful question when analysing whether a defendant has breached a duty of care or merely omitted to act: what would have happened if the defendant had done nothing at all? In Sintes, the answer was “nothing at all”. That was ultimately fatal to the claimant’s case, and to the first instance judgment.

The facts

Ms Sintes was walking through Whitechapel Market towards the Royal London Hospital when she tripped over metal scaffolding poles protruding from a market trader’s trolley onto the public footpath. She suffered a serious ankle fracture. She was also heavily pregnant and, one might think, a very sympathetic claimant (although, happily, her unborn baby was unaffected).

The trader responsible could not be identified. Proceedings were brought against the London Borough of Tower Hamlets, which licensed and regulated the market under the London Local Authorities Act 1990. The council was neither the highway authority, nor the occupier, nor the owner of the trolley or poles, and there was no suggestion that any council employee had created the hazard.

The claimant’s case was based entirely on the council’s regulatory role. Tower Hamlets imposed detailed licence conditions, operated an enforcement regime and required market officers, through its Standard Operating Procedures (“SOPs”), to inspect the market and keep walkways clear. It was argued that these powers and procedures gave rise to a common law duty to detect and remove hazards created by traders.

The decision at first instance

The Deputy District Judge accepted that argument. He held that the council’s licensing regime, enforcement powers and SOPs demonstrated a high degree of control over the market and amounted to an assumption of responsibility for its safe operation. Given the proximity between the council and pedestrians using the adjoining footpath, it was fair, just and reasonable to impose a duty of care. By failing to carry out adequate inspections and remove the obstruction, the council had breached that duty.

It is an understandable conclusion. Faced with a detailed inspection regime that may not have been followed, it is tempting to ask what the council should have been doing about this hazard.

The Court of Appeal’s baseline analysis

The Court of Appeal held that this was the wrong question.

Applying the principles recently restated by the Supreme Court in Tindall v Chief Constable of Thames Valley Police [2024 UKSC 33, Stuart-Smith LJ emphasised that the relevant baseline to be considered is ‘what would have happened if the defendant had done nothing at all?’. The common law generally imposes liability where a defendant creates or worsens a danger, not where it merely fails to prevent harm caused by someone else.

Here, if Tower Hamlets had done nothing, or had had no inspection regime, the unidentified trader could still have left the poles protruding across the pavement. The danger would still have existed and Ms Sintes could still have been injured. The council had not created the risk; the trader had.

Properly analysed, therefore, the complaint was not that Tower Hamlets had made matters worse but that it had failed to confer a benefit by exercising its statutory powers more effectively. The Court rejected the suggestion that the council’s SOPs created a duty of care. Internal procedures explain how a public authority intends to perform its statutory functions; they do not create private law duties. A failure to follow operational guidance is not, without more, actionable negligence. As set out by the Supreme Court in Tindall, just because a public authority may “have statutory powers and duties to protect the public from hard, failure to do so does not make the authority liable in the tort of negligence unless, applying same principles, a private individuals would have been so liable.”

The claimant in Sintes was therefore required to bring the case within one of the recognised exceptions to the omissions principle: where the defendant has assumed a responsibility to protect a person from harm, or has control of a third party. She could not do so.

The Court rejected the argument that the council had assumed responsibility merely because it regulated the market. Licensing traders, carrying out inspections and enforcing licence conditions may amount to conscientious regulation, but they do not amount to an undertaking to protect every pedestrian from harm caused by traders.

Nor did the council exercise the degree of control required by the authorities. Regulatory powers are a world away from the direct control seen in cases such as Dorset Yacht v Home Office [1970] AC 1004. The traders remained responsible for their own conduct.

Conclusion

There is a temptation in omissions cases to begin by asking whether the defendant could have prevented the accident. Sintes reminds us that this is rarely the right starting point.

Instead, practitioners should identify the baseline. What would have happened if the defendant had done nothing at all? If the claimant would have been in exactly the same position, the complaint is likely to be one of pure omission. The burden then falls on the claimant to establish one of the recognised exceptions to the general rule; as Sintes demonstrates, those exceptions remain tightly confined.

About the Author

Bethany Hutchison was called in 2021. Prior to joining chambers she gained a broad range of experience working in the legal advisory teams in the Cabinet Office and the Ministry of Housing, Communities and Local Government, following successful completion of her pupillage with the Government Legal Department, advising on high profile commercial, immigration and contractual matters during that time. She is now developing a busy common law practice across the full range of chambers’ specialisms. 

Managing Multiparty Claims: Black Horse Limited v AngelClose Brothers Limited [2026] EWCA Civ 831

Regular readers will be aware that the courts have been busy in recent years developing a nuanced line of authority relating to the case management of large multiparty claims. Such claims arise in a cross border context most obviously in relation to employers’ obligations, product liability, quality complaints, denied boarding and (to a lesser degree) in gastric illness cases. But we can also learn from the decisions of the higher courts in cases arising from the provision of financial services brought under the Consumer Credit Act 1974.

The facts

In the Black Horse litigation over 5,000 claimants assert that over the course of 14 years they paid secret commissions to car dealers when entering into finance agreements with Black Horse. By way of eight claim forms, they have brought claims against the eight defendants pursuant to s.140B(1)(a) of the Act on the basis that the relationship between them was unfair. Each claim was worth around £1,000 and the claimants served a single, generic particulars of claim on the basis that the claims raised a single common issue of whether the Financial Conduct Authority’s Consumer Credit Sourcebook (CONC) required disclosure of the nature of the discretionary commission arrangements. The defendants sought to disaggregate the claims.

The relevant provision of the CPR, Part 7.3, states that:

“A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.”

At first instance the Circuit Judge agreed with the defendants that the convenience test was not met, and therefore disaggregated the claims. On appeal the High Court Judge allowed the claimants’ appeal, finding that there were broad common issues of law and that it was important in this type of case for some lead cases to be tried in full because of the likelihood that such a process would lead to settlements.

The decision of the Court of Appeal

The defendants’ appeal was dismissed. The Court held that the principles applicable to consideration of the management of a multi-party claim form under CPR Part 7.3 are as follows:

(i) the burden of demonstrating convenience is on the claimants;

(ii) the word “conveniently” in Part 7.3 carries its natural meaning and many matters might be relevant to the question;

(iii) multi-claimant proceedings will probably satisfy the convenience test if there are common issues which will bind all or most claimants, but that is not the only factor to be considered;

(iv) crucially, what matters most is whether a multi-party claim form is “a” convenient means of disposal, not “the most” convenient way;

(v) it should be borne in mind that common disposal does not require a single final trial hearing to be possible or practicable;

(vi) the test of convenience has to be assessed by reference to the interests of all parties and the court, and it might suffice that it is simply convenient to case-manage claims together. The possibility of efficient case management of multi-claimant claims is clearly relevant to the question, but it is not necessarily determinative.

Common issues

The Court considered that the requirement for a common issue of law or fact does not mean that a decision on that issue has to bind everyone in a multi-claimant claim. If claims are very similar in nature, arise from the same statutory provisions, and give rise to the same general issues, there are likely to be common issues of law and fact. The fact that the claims might require separate quantification does not undermine this conclusion; it simply indicates that they might have to be assessed separately in the final stages of the litigation once liability has been dealt with as a common issue. The defendant’s submission that the trial of lead cases would be futile in the light of the differential quantification of the claims and of the fact that the lead cases would not bind the others was rejected on the basis that persuasive results in lead cases are important in potentially leading to settlement of all claims. The trial of lead cases would be a sensible step and a clear pointer towards the convenient disposal of all 5,000 claims in this case.

Comment

The decision in this case is another in what is now an established line of authority in which the Court of Appeal has made it clear that in appropriate cases it regards multi-party claims, even very large ones, as being a justified and proportionate use of parties’ and court resources. In many cases such claims are simply not economically viable as single claims and but for the availability of a group action could not be brought at all, and it must surely be in the interests of access to justice that they can be brought together so that the common issues relating to all claimants can be ventilated properly and without risk of conflicting judgments. This approach to multi-party litigation is another indicator of the increasing pragmatism of the higher courts in approaching questions of case management, and will no doubt be a welcome development from the point of view of those representing claimants. As for defendants, when considering multi-party claims of this nature it will always be advisable to assess the claims in the round – where claimants raise common issues of law or fact, it is likely that a group action will be allowed to proceed, and such an outcome is most likely to be avoided by way of concessions made regarding the potential common issues. Where, therefore, a defendant might have a potential defence, but it is weak, it might be tactically preferable to concede the point and thus dispose of any argument that the claims raise common issues, increasing the prospects of disaggregation.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.