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Civil Procedure Rules - From: 2002 To: 2002

This page lists 78 cases, and was prepared on 21 May 2019.


 
 Reid Minty (a firm) v Taylor; CA 2002 - [2002] 1 WLR 2800; [2001] EWCA Civ 1723; [2002] EMLR 19; [2002] 1 Costs LR 180; [2002] 2 All ER 150; [2002] CP Rep 12; [2002] CPLR 1
 
Irvine and Another v Talksport Ltd [2002] EWCA Civ 95
18 Jan 2002
CA
Peter Gibson LJ
Evidence, Civil Procedure Rules
The claimants renewed their application for permission to appeal from an order granting an application made by the defendant, Talksport Ltd, to exclude certain evidence which the claimants appeared to wish to adduce at the trial of the action. Mr Irvine, a famous racing driver, talked of the defendant's use of his image for advertising without his permission. Held: The claimant had deliberately risked exclusion of his evidence by delaying service of it beyond the limits: "The considerations which seem to me quite plainly of great significance which were before the judge were the interests of the administration of justice, whether the application for relief had been made promptly, whether the failure to comply was intentional and whether there is a good explanation for the failure. Those are the first four subparagraphs of rule 3.9(1) and it seems to me clear that each of them counts against the claimants." Nor was the sanction disproportionate: "The claimants' behaviour runs counter to the ethos which for some time, even before the CPR's introduction, has governed the court's approach, that is to say that cards should be placed on the table quite openly and orders intended to achieve that end should be obeyed. To allow a party to flout a court order for a tactical reason is unacceptable."
Civil Procedure Rules 3.9(1)
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Lilly Icos Ltd v Pfizer Ltd (No 2) Times, 28 January 2002; Gazette, 06 March 2002; [2002] EWCA Civ 2; [2002] 1 WLR 2253
23 Jan 2002
CA
Lord Justice Aldous, Lord Justice Buxton and Lord Justice Longmore
Intellectual Property, Litigation Practice, Civil Procedure Rules, Information
The respondent sought an order to maintain the confidentiality of documents disclosed during patent revocation proceedings. It now appealed an order refusing confidentiality. Held: Under normal circumstances, a party requesting such an order must provide clear reasons for it to be granted. The court should recognise the lack of protection which would attach to a document disclosed during proceedings but then, however it arose, coming into third party hands. In this case, the figures sought to be protected were figures for marketing costs. Patent cases were subject to the same general rules as any other cases, but did present some particular problems, and were subject to some particular considerations. The sensitivity of such figures was recognised, and the court should have granted protection, allowing for the limited part it played in the trial.
Civil Procedure Rules 31.22
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La Baguette Ltd and Others v Denyse Audergon Times, 31 January 2002; [2002]EWCA Civ 10
23 Jan 2002
CA
Lord Justice Pill, Lord Justice Tuckey, And, Lord Justice Jonathan Parker
Civil Procedure Rules
Judges should be careful not to create judicial checklists which added a gloss to the civil procedure rules. The claimant's action had been stayed automatically for not having progressed for a year. The judge applied the checklist in Annodeus to lift the stay. Held: The use of judicially created checklists would create a satellite body of knowledge around the civil procedure rules, and may operate to change them. The rules should prevail.
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 A (a Patient) v A Health Authority and Others; In re J (a Child); Regina (S) v Secretary of State for the Home Department and Another; CA 24-Jan-2002 - Times, 11 March 2002; Gazette, 14 March 2002
 
TSN Kunststoffrecycling Gmbh v Harry Maria Jurgens Times, 20 February 2002; Gazette, 15 March 2002; [2002] EWCA Civ 11
25 Jan 2002
CA
Lord Justice Robert Walker, Lord Justice Rix, And, Lord Justice Dyson
Jurisdiction, Civil Procedure Rules, European
The claimant sought to register and enforce here, a judgment obtained by default in Germany. It was argued that he had not had, under section 27(2) sufficient opportunity to make a proper reply to the proceedings, and that the Brussels Convention created a right of appeal outside the range of appeals under the Civil Procedure Rules. An initial two week period had been set by the German Court, but extended to five weeks, in effect two weeks after delivery of notice of the proceedings. The defendant was absent on holiday when the proceedings were served, and he argued that that should have been taken as exceptional reasons for extending the time allowed for answering the claim. Held: The needs to simplify registration of judgements abroad, and to safeguard those served with notice of proceedings commenced in a foreign court had to be balanced. The court should test the question of sufficient time against the full facts, and not merely enter judgement because there has been a default of appearance. The crucial time was the entire period up to judgement being entered. The appeal was dismissed, and reference to European Court refused.
courtcommentary.com For purposes of article 27(2) of Brussels Convention (service "in sufficient time” to enable party, against whom enforcement is sought, to arrange for defence), the relevant period of time begins with due service and ends with issue of default judgment
Civil Jurisdiction and Judgments Act 1982 - Access to Justice Act 1999 - Civil Procedure Rules - Brussels Convention 1968 27(2)
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Kuwait Oil Tanker Company S A K Sitka Shipping Incorporated v UBS Ag [2002] EWCA Civ 34
25 Jan 2002
CA
Lord Justice Peter Gibson, Lord Justice Laws, And, Lord Justice Longmore,
Banking, Litigation Practice, Civil Procedure Rules, International
Officers of the claimant had been found to have defrauded the plaintiff of many millions of pounds. Money had been paid through the defendant, a Swiss bank, and a garnishee order was sought. There was no presumption that, merely because a debt was a foreign debt, garnishee relief should be refused. The real issue was any possibility of double jeopardy, not whether the order of an English court would be recognised. Swiss law debarred disclosure of any of the details suggested, and payment under a garnishee order would not discharge the bank's debt to its client. The debt constituted by a bank account is located in whatever country the account is kept. Nevertheless the order was being sought to be enforced in England, and the Swiss courts did not have exclusive jurisdiction. The case was remitted to the divisional court to consider the issue of double jeopardy.
Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 Art 16(5) - Civil Procedure Rules 50.1
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[ Bailii ]
 
Factortame Ltd and others v Secretary of State for the Environment, Transport and the Regions) [2002] EWCA Civ 22; [2002] 2 All ER 838; [2002] 1 WLR 2438; [2002] CPLR 385
28 Jan 2002
CA
Lord Justice Simon Brown Vice President Of The Court Of Appeal Civil Division Lord Justice Waller And Lord Justice Sedley
Costs, Civil Procedure Rules
A part 36 offer had been made and declined. A significant amendment was made to the defendant's pleadings on the basis of information which had always been available to him. The claimant then accepted the payment in. Should the claimant be regarded as the successful party for costs purposes. Held: Costs remain at the discretion of the judge, and a judge's decision should not be interfered with without clear justification. Nevertheless, the court may take into account the circumstances which have given rise to a change of mind, and each decision must be assessed within its own factual matrix. In this case no error had been identified in the judge's reasoning, and the appeal failed.
No general rule that claimant is “successful party” if (a) defendant makes Part 36 payment which claimant does not accept, (b) defendant makes significant amendment to case on basis of information always available to him, (c) claimant then accepts payment
Civil Procedure Rules 36
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 Regina (Ash and Lacy Building Products Ltd) v Comptroller General of Patents, Designs and Trade Marks; ChD 1-Feb-2002 - Times, 12 March 2002; Gazette, 15 March 2002
 
Capital One Developments Ltd v Commissioners of Customs and Excise Times, 19 February 2002; Gazette, 14 March 2002; [2002] STC 479
4 Feb 2002
ChD
Mr Justice Neuberger
Civil Procedure Rules, VAT
The company sought repayment of some 8 million pounds overpaid VAT from the Commissioners. That claim was yet to be determined, but the company sough an order for interim payments, on the basis that it could repay if necessary. Held: Whilst such an order might be made, it would require exceptional circumstances. The claim was disputed, and none such existed here. The applicant might better have proceeded by way of judicial review than an application for an injunction.
Civil Procedure Rules 25.1
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Australia and New Zealand Banking Group Ltd v National Westminster Bank plc and Others Times, 14 February 2002; Gazette, 21 March 2002
6 Feb 2002
ChD
Mr John Jarvis, QC
Civil Procedure Rules
Where an innocent party had been joined in an action in order to ensure proper discovery, he should be excused from the action once he had complied with the discovery required. It would be wrong to continue his involvement against an unsupported expectation that further documents might be required.
Civil Procedure Rules 19.2
1 Cites


 
Wulfsohn, Regina (on the Application of) v Legal Service Commission [2002] EWCA Civ 250; [2002] EWHC 9025 (Costs); [2002] CP Rep 34; [2002] 3 Costs LR 341
8 Feb 2002
CA
Schiemann LJ, Rix LJ
Costs, Civil Procedure Rules
The claimant appealed against a costs award made to him when acting as a litigant in person. Held: The appeal was allowed. A litigant in person may be able to claim for the costs of his research, subject to the cap in the rules.
Schiemann LJ said: "If one reads together 48.6(2) and (4) one sees that, in principle, a litigant in person is entitled to compensation for his time, and the rate is fixed by Statutory Instrument and at all relevant times was £9.25 per hour. But there is a cap which is that however long a litigant spends in person doing things he cannot recover more than, broadly speaking, two-thirds of what his legal representatives would have done if he had had a lawyer."
Civil Procedure Rules 48.6
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Rezvi v Air Canada [2002] EWCA Civ 254
14 Feb 2002
CA
Tuckey LJ
Civil Procedure Rules
The claimant renewed her application for leave to appeal, but had first asked the judge to recuse himself for apparent bias having already expressd an opinion on the papers submitted. Held: Reconsideration by the same judge who had refused leave on the papers was part of the system. Applying Kheino, parties who did not bring additional points to an oral hearing woud be unlikely to succeed.
Civil Procedure Rules 52.3(4)
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Regina (on the Application of Harris) v Secretary of State for the Home Department Gazette, 21 March 2002; [2002] EWCA Civ 100
14 Feb 2002
CA
May LJ, Sir Anthony Evans, Sir Denis Henry
Civil Procedure Rules, Immigration
The respondent had acquired the right to live in the UK. After visiting Jamaica, he was refused entry. He appealed and was admitted. The Secretary of State sought an extension of time to file a request for leave to appeal with the Court of Appeal. Held: The time for such an appeal was 14 days. Justice required a party to know that a judgment could be relied upon after a certain time. No good reason had been given for the delay, and leave was refused.
Civil Procedure Rules 45.2
[ Bailii ]
 
Dennis Pritchard Evans v Tiger Investments Limited, David John Moore [2002] EWCA Civ 161
20 Feb 2002
CA
The President, Lord Justice Potter, And, Lord Justice Kay
Company, Land, Evidence, Civil Procedure Rules
The first defendant appealed a judgement that it was responsible to the claimant for a loan taken out by the second defendant, one of its shareholders. He had said it was for the company, and he had been found not personally responsible. Land had been purchased in the second defendant's name, he said, only for convenience in a speedy transaction, and the charge had been executed by him for the company. Held: The judge had evidence sufficient to establish that the land was being purchased for the first defendant. The appellants sought to introduce new evidence at appeal. The Ladd principles on admission of evidence at appeal, are that the evidence was not with reasonable diligence available for the trial; that the evidence would have an important influence, and that it was credible. In this case the evidence could have been obtained. Concentrating on the justice as between claimant and defendant, there was no purpose in relaxing that principle.
Civil Procedure Rules 52.11(2)
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Anglo-Eastern Trust Ltd and Another v Kermanshahchi [2002] EWCA Civ 198; [2002] All ER (D) 321 (Feb)
22 Feb 2002
CA
Lord Justice Brooke, Lord Justice Mance, and Mr Justice Park
Civil Procedure Rules
The claimant sought repayment of loans. The judge had refused summary judgement, but ordered the defendant to pay a sum into court, failing which his defence would be struck out. The defendant appealed saying the condition for making a conditional order did not apply. Held: The judge had found that the defence might succeed, but that it was improbable. The judge was correct to make those findings on the evidence before him. The defendant argued that no evidence had been given as to his means, and ability to make the payment requested. The court should not make a conditional offer where the defendant could not meet that condition. Should the Court of Appeal hear such evidence? The issues here were not the same as the general issue of admission of new evidence by an appellate court. It was self evident in the particular circumstances that such evidence must be admitted. Having done so, the judge's order was set aside.
Civil Procedure Rules 24
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[ Bailii ]
 
H (A Healthcare Worker) v Associated Newspapers Limited Times, 19 March 2002; [2002] EWCA Civ 195
27 Feb 2002
CA
Lord Phillips MR, Lord Justice Judge, Lord Justice Carnwath
Health, Information, Human Rights, Media, Civil Procedure Rules, Contempt of Court
The applicant had been a health care worker, but was no longer working. He had come to be HIV positive, and an order was sought protecting his identity from disclosure in the press. He had evidence that the NHS guidelines on notification of patients of having been treated. He declined to provide details of his private patients for notification. He had obtained an order under the rules to protect his identity within the proceedings. Held: The order against the newspaper would better have been obtained as part of the first action, but the two could be consolidated. The order had allowed the authority to be named, but restricted the newspaper publishing anything which might lead directly or indirectly to his identification. Both parties challenged parts of the order. The order preventing the naming of the Health Authority was intended only to protect the identity of the worker, and was properly made. There was a balancing exercise to be had, and also there was a need to respect the privacy of those who had been treated by H. The Health authority also had interests which it had a duty to protect. The court had power to protect its identity to avoid a situation which would seriously interfere with its statutory duties. The consequence of identifying the authority would include also the inevitable discovery of the identity of H. N should not be identified. H must hand over such records of his private patients as was necessary to allow a look-back exercise, and identify any who might have been at risk.
Data Protection Act 1988 - Civil Procedure Rules 39.2.(2) - Human Rights Act 1998 Sch1 Art 10
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Regina (G) v Ealing London Borough Council and Others Times, 18 March 2002; Gazette, 25 April 2002; [2002] EWHC 250 (Admin)
28 Feb 2002
QBD
Mr Justice Munby
Civil Procedure Rules, Judicial Review
Nothing in the new rules prevented the court from allowing cross examination of witnesses in judicial review cases, though the procedure does not lend itself to cases with a high degree of factual debate. The court has a wide discretion, and the Wilkinson case seems to imply this. This applies notwithstanding that Part 54 appeared to contain no provisions authorising cross-examination in judicial review cases
Civil Procedure Rules 1998 8.6 32.1 54.16(1)
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 Woodhouse v Consignia Plc; Steliou v Compton; CA 7-Mar-2002 - [2002] 1 WLR 2558; [2002] 2 All ER 737; Times, 05 April 2002; Gazette, 18 April 2002; [2002] EWCA Civ 275; [2002] All ER (D) 79

 
 Jolly v Jay and Another; CA 7-Mar-2002 - Times, 03 April 2002; [2002] EWCA Civ 277
 
Campbell v Frisbee [2002] EWHC 328 (Ch)
14 Mar 2002
ChD
The Hon Mr Justice Lightman
Employment, Damages, Information, Civil Procedure Rules, Human Rights
The defendant appealed a summary judgement on the claimant's claim with respect to her alleged disclosure of details Miss Campbell's private life. The claimant sought an action for account of profits for breach of the terms of a contract of service. The defendant claimed that a violent assault by the claimant on her was a repudiation of the contract. There were some issues which must go to trial, but the claimant obtained judgement on those matters relating to her private life. Held: To defeat an application for summary judgment the respondent must show some 'real prospect' of success, even if improbable. Would the obligation of confidence be discharged by a repudiation? Restrictive covenants had been considered before, but not obligations of confidence. The Photo Production case established that not all obligations were defeated by a repudiation. The obligation of confidence survived any repudiation. The defendant argued that the restriction restricted her right of free speech. Here there was no overwhelming public interest argument. There was no prospect of success on this point and the appeal failed.
Civil Procedure Rules 24.2 - European Convention on Human Rights
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[ Bailii ]
 
North Range Shipping Ltd v Seatrans Shipping Corporation Times, 18 April 2002; [2002] EWCA Civ 405; [2002] 1 WLR 2397; [2002] 4 All ER 390
14 Mar 2002
CA
Lord Justice Aldous, Tuckey LJ
Arbitration, Human Rights, Civil Procedure Rules
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why. Held: Human Rights law required a right of appeal. That right could only be exercised properly if the party knew the basis of the decision. The court should state which of the threshold conditions required under s 69 had not been met. The Court of Appeal did have the power to set aside a first instance judge's decision for unfairness, and a decision without sufficient reasons was such.
Tuckey LJ said: "If, as is accepted, there is a residual jurisdiction in this court to set aside a judge's decision for misconduct then there can be no reason in principle why the same relief should not be available in a case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself."
Arbitration Act 1996 69(3) - Human Rights Act 1988 6 - Civil Procedure Rules 52.10(2)(a)
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Amec Process and Energy Ltd v Stork Engineers and Contractors Bv (A Company Registered In the Netherlands) (No 3) Unreported, 15 March 2002
15 Mar 2002


Costs, Civil Procedure Rules

1 Citers


 
Practice Statement (Admiralty and Commercial Courts: Procedure) Times, 02 April 2002
18 Mar 2002
ChD

Litigation Practice, Civil Procedure Rules
The three rules listed in the Civil Procedure Rules, should also be applied in the Admiralty and Commercial Courts, with effect from March 25 2002. Child marks the change over to the Civil Procedures Rules from the Commercial Court Guide, for much business in those courts, and a new edition of the Guide has been issued. The Guide remains in effect for matters not covered by the Rules and Practice Directions. An electronic version of the Court Guide is available on the Court Service web site.
Civil Procedure Rules 58 61 62

 
Regina (Heather and Another) v Leonard Cheshire Foundation Times, 08 April 2002; [2002] 2 All ER 936; [2002] EWCA Civ 366
21 Mar 2002
CA
Lord Woolf CJ, Lord Chief Justice, Lord Justice Laws and Lord Justice Dyson
Judicial Review, Human Rights, Civil Procedure Rules
The appellants appealed rejection of their application for judicial review. They were long term residents in a nursing home, which the respondents had decided to close. Held: Though the respondent did exercise some public functions, and its activities were in part paid for by public authorities, its activity of providing residential accommodation was not a public function, and its decisions with regard to that activity were not capable of challenge under Human Rights law. Suggestions in the court below that proceedings should not have been by way of judicial review were sterile, and courts should look beyond the form of the application. A local authority respondent should be careful of its statutory obligations, and duties under Human Rights Law, and could not divest itself of obligations by contracting them out.
Civil Procedure Rules 53 54 - National Assistance Act 1948 21(1) 26(1) - Human Rights Act 1998 6 - European Convention on Human Rights Art 8
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Inline Logistics Ltd v UCI Logistics Ltd Times, 02 May 2002; Gazette, 10 May 2002
27 Mar 2002
CA
Mr Justice Ferris
Costs, Civil Procedure Rules
The claimant sought payment as part of its costs of the legal expenses insurance premium it had paid in the period between April 1 and July 2000. The respondent said it had not complied with the rules. This was required by the Act. Held: The Act came into effect on April 1st, but the rules did not apply until July 3rd. Between times, there was no possibility of complying with the rules. The transitional rules only applied to those who had not yet commenced proceedings. Since there were no rules in place to comply with, it could not be said that the claimant had failed to comply with them.
Access to Justice Act 1999 29 - Civil Procedure Rules 44.15 - Civil Procedure (Amendment No 3) Rules 2000 (SI 2000 No 1317)

 
Robert Slot and Anne Slot v J A Isaac [2002] EWCA Civ 481
12 Apr 2002
CA
Lord Justice Brooke
Civil Procedure Rules
Leave to appeal was sought against a judge's finding that he had no jurisdiction to hear an application for leave to appeal against another order itself refusing leave to appeal against a case management decision. The party had declined to make any application to the original judge. They said that were following a path they had previously taken. Held: A previous incorrect procedure could not be repeated. The Act explicitly required the application to be heard by the original judge, and the exceptions did not apply here. In future such an application should be rejected summarily by the court.
Civil Procedure Rules 52.1(3)(b) - Access to Justice Act 1999 54(4)
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Chellaram and Another v Chellaram and others (No 2) [2002] EWHC 632 (Ch); [2002] 3 All ER 17
16 Apr 2002
ChD
Mr Justice Collins
Trusts, Civil Procedure Rules
One of the defendants had not been properly served by posting the proceedings to an address at which he stayed on his very occasional visits to London. The proceedings had not been issued for the purposes of service abroad, because at the time of deemed service under CPR 6 he was not physically within the jurisdiction: "In my judgment there are two separate reasons why Sham has not been validly served. First, the claimants have not adduced any evidence which casts doubt on Sham's evidence that the address in St John's Wood is used only occasionally by him on the rare occasions when he visits London. In these circumstances there is no evidence that it ever was a 'residence' and it therefore cannot be his 'last known residence'. Secondly, it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service. The Barclays Bank case is simply an illustration of this principle . . CPR Pt 6 contains general rules about service of documents and does not only apply to service of a claim form . . but I do not consider that CPR 6.5 has swept away the general principle so far as it relates to service of the claim form."
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In re Good, deceased; Carapeto v Good and Others Times, 22 May 2002; Gazette, 07 June 2002; (2002) WTLR 801; [2002] All ER 141; [2002] EWHC 640
19 Apr 2002
ChD
Justice Rimer
Wills and Probate, Costs, Civil Procedure Rules
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or those interested in the residue had been the cause of the litigation or if the circumstances led reasonably to an investigation. In this case a challenge to the will failed, but the challenge had not been without merit, and it remained appropriate to make an order that one half of the claimant's costs be payable from the estate.
A testator, when there is no suggestion of insanity, is presumed to have remained sane: "The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. A relevant standard of proof is, however, simply by reference to that balance of probability."
As to proof of execution of the will, Rimer J said: "The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion, something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. The relevant standard of proof is, however, simply by reference to the balance of probability."
On undue influence, Rimer J said: "the burden of proving that the May will was procured by undue influence on the part of the Carapetos lies squarely on the defendants. He disclaimed any suggestion that in circumstances such as those of the present case there is any scope for a presumption that undue influence was brought to bear on Miss Good, such that the burden is on the Carapetos to rebut it.
In this context, undue influence means coercion. The defendants have to show that, one way or another, the Carapetos so manipulated Miss Good that she felt she had no choice but to make the May will. "
Civil Procedure Rules 44.3
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 Wragg and Another v Partco Group Ltd UGC Ltd; CA 1-May-2002 - Times, 10 May 2002; Gazette, 07 June 2002; [2002] EWCA Civ 594; [2002] 2 BCLC 323; [2002] 2 LLR 343
 
R C Residuals Ltd (formerly Regent Chemicals Ltd) v Linton Fuel Oils Ltd Times, 22 May 2002; Gazette, 30 May 2002; [2002] EWCA Civ 911; [2002] 1 WLR 2782
2 May 2002
CA
Lord Justice Brooke, Lord Justice Kay and Sir Swinton Thomas
Civil Procedure Rules
The applicant had failed to comply with an unless order, delivering his expert evidence some 20 minutes late. The evidence had not been allowed. They appealed. Held: The claim was re-instated. This was not the first occasion of default. Nevertheless, the rules listed several matters to be considered, and the judge must apply his mind to each element. Even though solicitors were entitled to refuse to accept service by e-mail, they might find the court less willing to hear their objection to late service where they insisted upon this. The judge had exercised his discretion wrongly.
Civil Procedure Rules 3.9(1)
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[ Bailii ]
 
Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading Times, 26 June 2002; [2002] EWCA Civ 796
8 May 2002
CA
Lord Justice Brooke and Lord Justice Buxton
Commercial, Civil Procedure Rules
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal. Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be reluctant to review a tribunal practicing as expert in an area for which it had been given statutory responsibility, and in which the judges would have no experience. An application for leave should identify which law had been infringed, and where it could be found in European law, and the exact nature of the error alleged. The application should also comply with the Civil Procedure Rules and the Practice Direction.
Civil Procedure Rules 52.4 - Competition Act 1998 18
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[ Bailii ]

 
 Sayers v Clarke Walker (A firm); CA 14-May-2002 - Times, 03 June 2002; [2002] EWCA Civ 645; [2002] 3 All ER 490; [2002] 1 WLR 3095; [2002] CP Rep 61
 
Phoenix Finance Limited vFederation Internationale De L'automobile, Formula One Management Limited, Formula One Administration Limited Times, 27 June 2002; Gazette, 27 June 2002; EWHC 1028 (Ch); [2002] EWHC 1028 (Ch)
22 May 2002
ChD
The Vice Chancellor
Contract, Arbitration, Costs, Civil Procedure Rules
The claimant had purchased the interests of a failed Formula One car racing team, including, it said, the right to enter a team in Formula One races. It claimed to have been unlawfully excluded from racing. Held: The claimant had failed to comply with the requirements imposed upon participants, and was not entitled to race. Since the claimant sought rights under the contract, it was bound by the agreement to refer disputes to arbitration. As to costs, there was still a need to serve a letter before action, and in the absence of such a letter, even in a case where there was no pre-action protocol, a party could not complain if he was ordered to pay the other party's costs on an indemnity basis.
Arbitration Act 1996 9 44 - Civil Procedure Rules
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 Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another; HL 23-May-2002 - Times, 24 May 2002; Gazette, 04 July 2002; [2002] UKHL 23; [2002] 1 WLR 1593; [2002] 3 All ER 97
 
Mohamad Al Fayed v The Commissioner of Police of the Metropolis Gazette, 01 August 2002; [2002] EWCA Civ 780; A2/2002/0758
29 May 2002
CA
Lord Justice Walker, Lord Phillips MR, Clarke LJ
Litigation Practice, Civil Procedure Rules, Equity
During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also sought public interest immunity. Held: A solicitor considering documents released to him owes no duty to the disclosing party. Once disclosure has in fact been made, it is too late to seek an injunction to protect the document against use, save in the case of an obvious mistake. The court is exercising an equitable jurisdiction, and there are no rigid rules. There had been discussions about the disclosure or withholding of different documents on different grounds, and the mistake need not have been obvious. The injunction was discharged.
Clarke LJ set out the principles applicable: "In our judgment the following principles can be derived from those cases:
i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not.
ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents.
iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived.
iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.
v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.
vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.
vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:
a) the solicitor appreciates that a mistake has been made before making some use of the documents; or
b) it would be obvious to a reasonable solicitor in his position that a mistake has been made;
and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.
viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.
ix) In both the cases identified in vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances.
x) Since the court is exercising an equitable jurisdiction, there are no rigid rules."
Civil Procedure Rules 31.2
1 Cites

1 Citers

[ Bailii ]
 
Lord Ashcroft v Attorney General and Department for International Development [2002] EWHC 1122 (QB)
31 May 2002
QBD
The Hon Mr Justice Gray
Information, Torts - Other, Civil Procedure Rules, Human Rights
The claimant was the subject of confidential reports prepared by the defendants which were leaked to newspapers causing him damage. He sought leave to amend his claim to add claims for breach of the Data Protection Act and for public misfeasance. Under the Civil Procedure Rules a new claim should be allowed if it is arguable. It was claimed that the failure to investigate the leak by the public authority itself amounted to an infringement of the claimant's human rights. However an investigation into the investigation of the source of the leak would be an improper diversion of the case. A case of misfeasance required the clearest of proof. There was none against the third named defendant, and the associated claim would not be allowed. Lateness is not to be a ground for refusing a claim for aggravated damages. Derogatory statements by third parties could not be relied upon to found a claim for aggravated damages.
DPA 1998 s4(4) creates free-standing duty on data processors to comply with principles in Sch 1 Part I. Commissioner enforces compliance with principles, but his jurisdiction is non-exclusive so far as claims for damages by data subjects are concerned
Gray J held it arguable that ostensibly innocent words might convey a secondary, inferential meaning which embodied sensitive personal data about an individual to the effect that he was involved in money laundering.
Data Protection Act 1984 - Data Protection Act 1998 4(4) - Civil Procedure Rules 17.3.5
1 Cites

1 Citers

[ Bailii ]
 
Clarke v Coutts and Co Gazette, 27 June 2002; [2002] EWCA Civ 943
17 Jun 2002
CA
Lords Justice Simon Brown and Peter Gibson and Sir Murray Stuart-Smith
Insolvency, Banking, Civil Procedure Rules
The respondent bank had obtained a charging order nisi against the applicant's property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order absolute. The claimant was not represented at that hearing. Several years later he sought to set aside the order. At first instance the judge said that the court retained a discretion, and ex debito justiciae, the order should stand. The claimant appealed. Held: The statute did not allow for any such discretion. Rule 3.2 allowed discretion in cases of procedural error, but this was statutory. The order absolute remained valid until set aside, but the right to have it set aside was equally absolute. The nisi order was a temporary order made complete on order absolute. It was therefore a continuing action within the section. The order absolute was therefore void, and since the order nisi was conditional upon it, that fell away also.
Insolvency Act 1986 252(2) - Civil Procedure Rules 3.2
1 Cites

1 Citers

[ Bailii ]
 
Iftakar Ahmed v Stanley A Coleman and Hill [2002] EWCA Civ 935
18 Jun 2002
CA
Brooke LJ
Civil Procedure Rules
The court considered the significance of CPR 52.13(2): "The restriction on second appeals is important because Parliament has made it clear that it wishes pretrial disputes in civil litigation to be dealt with, on the whole, at a level lower than this court. It may be that judges in the courts below may make orders which judges in this court would not have made, but the philosophy of the Civil Procedure Rules is to confirm and bolster the authority of the judges in the lower courts."
Civil Procedure Rules 52.13(2)
1 Citers

[ Bailii ]
 
Owusu v Jackson, Mammee Bay Resorts Limited etc [2002] EWCA Civ 877; [2003] PIQR 186
19 Jun 2002
CA
Lord Justice Brooke
European, Jurisdiction, Civil Procedure Rules
Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in various ways. The defendants argued that the proper forum was Jamaica. Held: The decision as to forum conveniens was well within the judge's discretion. As to the issues of European Law, these were to be referred to the European Court. Here, the two competing jurisdictions were not separate European ones, but one European and one Jamaican. The issue had not been previously dealt with by the European Court.
Civil Procedure Rules 6.20(3) - Brussels Convention Art 2 - EC Treaty 220
1 Cites

1 Citers

[ Bailii ]
 
Q v Q (Family proceedings: Costs order) Times, 16 July 2002; Gazette, 21 August 2002
21 Jun 2002
FD
Wilson J
Costs, Family, Civil Procedure Rules
The provisions of the Civil Procedure Rules as to costs in Family division proceedings did not replace entirely the old rules after April 26, 1999, and the Leary case was not superceded. The requirement for summary assessment of costs for hearings less than a day did not abrogate the power to make such an assessment in longer cases, and indeed under the rules, the possibility should be considered in every case. In family cases, in particular, detailed assessments tended only to prolong bitterness.
Civil Procedure Rules
1 Cites


 
Seray-Wurie v Hackney London Borough Council Times, 04 July 2002; Gazette, 30 August 2002; [2002] EWCA Civ 909; [2002] 3 All ER 448; [2003] 1 WLR 257
25 Jun 2002
CA
Lord Justice Simon Brown, Lord Justice Brooke and Lord Justice Dyson
Civil Procedure Rules, Costs
The claimant had applied for and been granted its costs certificate by default. The respondent claimed it had sent its point of issue notice in time. The council now applied under the rule for the court itself to re-open the decision to allow the objections to be made. The High Court acceded to the request. The claimant was refused leave to appeal by the judge. The claimant sought appealed. Held: The High Court, when it sat as an appeal court, did have power to re-open its own decisions in exceptional circumstances in order to avoid real injustice, following Taylor. There was no distinction in principle between the High Court and the Court of Appeal. In future, and pending any rules change, such applications should be made on paper to the high court. In this case no significant injustice could be shown.
Civil Procedure Rules 47.12
1 Cites

[ Bailii ]
 
Owens Corning Fiberglas (UK) Pension Plan Ltd Times, 08 July 2002
25 Jun 2002
ChD
Mr Justice Neuberger
Civil Procedure Rules
The pension scheme trustees had obtained leave to issue proceedings to compromise a claim without naming any defendants under the rules. The beneficiaries sought leave to be joined. Held: The urgency of the situation now required the proceedings to be allowed to go ahead without delay, but it would have been better for the trustees to have given notice of the intention to make the compromise to the beneficiaries at an early stage to allow them to be involved.
Civil Procedure Rules 8.2A - Rules of the Supreme Court Order 85, rule 2(3)(d)

 
Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others Times, 10 July 2002; Gazette, 01 August 2002; Gazette, 05 September 2002; [2002] EWCA Civ 923; [2003] 1 WLR 127; 70 BMLR 40
28 Jun 2002
CA
Lord Justice Simon Brown, Lord Justice Mummery and Lord Justice Dyson
Health, Civil Procedure Rules, Judicial Review
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as unreasonable, and detained him further under 5(3). Held: If the hospital authority considered the tribunal's decision unreasonable, it must first apply for judicial review, rather than detain the patient. A second tribunal had since decided how should not be released in any event, but the principle was important. The procedure should be by way of judicial review under rule 54.10. A judicial review decision did re-write history, in setting aside a decision, and therefore the fact that events following the decision had been concluded was no bar. It was therefore equally possible to order a stay under the same procedure.
Dyson L.J. stated that the purpose of a stay in judicial review is clear: "It is to suspend the "proceedings" that are under challenge pending the determination of the challenge. It preserves the status quo. This will aid the judicial review process and make it more effective. It will ensure so far as possible, that, if a party is ultimately successful in his challenge, he will not be denied the full benefit of his success. In Avon, Glidewell LJ said that the phrase "stay of proceedings" must be given a wide interpretation so as to apply to administrative decisions. In my view it should also be given a wide interpretation so as to enhance the effectiveness of the judicial review jurisdiction. A narrow interpretation, such as that which appealed to the Privy Council in [Minister of Foreign Affairs, Trade and Industry v. Vehicles and Supplies Ltd. [1991] 1 W.L.R. 550] would appear to deny jurisdiction in case A [i.e. where the tribunal ordered discharge, but the order had not yet taken effect because the tribunal directed that the discharge was to be deferred to a specific future date]. That would indeed be regrettable and, if correct, would expose a serious shortcoming in the armoury of powers available to the court when granting permission to apply for judicial review . . [It] is common ground that "proceedings" includes not only the process leading up to the making of the decision itself. The Administrative Court routinely grants a stay to prevent the implementation of a decision that has been made but not yet carried into effect, or fully carried into effect. A good example is where a planning authority grants planning permission and an objector seeks permission to apply for judicial review. It is not, I believe, controversial that, if the court grants permission, it may order a stay of the carrying into effect of the planning permission."
Dyson LJ also discussed the effect of the lack of resources on litigation: "I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question."
Mental Health Act 1983 3 5(3) - Civil Procedure Rules 54.10
1 Citers

[ Bailii ]

 
 Anderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd; CA 3-Jul-2002 - Times, 16 July 2002; Gazette, 12 September 2002; [2002] EWCA Civ 933; [2002] 3 All ER 813; [2002] 1 WLR 3174
 
Mitchell and Others v James and Others Times, 20 July 2002; Gazette, 19 September 2002; [2002] EWCA Civ 997; [2002] EWCA Civ 997
12 Jul 2002
CA
Lord Justice Peter Gibson, Lord Justice Potter and Sir Murray Stuart-Smith
Civil Procedure Rules, Costs
The defendant had made an offer including an offer that each party bear their own costs. A later action led to an order on better terms, and the claimant sought costs on an indemnity basis. Held: The rules were generally incompatible with offers which included costs. Their purpose was to direct costs after a case and its issues had been considered by a judge, and such offers would offer opportunities for abuse. Whilst the rules did not prevent a party making an offer in whatever terms it chose, but equally nothing in rule 36.1(2) allowed a term as to costs as part of the offer for the purposes of obtaining indemnity costs.
Civil Procedure Rules 36.21
1 Citers

[ Bailii ]
 
London Borough of Barnet v Hurst Times, 12 August 2002; Gazette, 19 September 2002; [2002] EWCA Civ 1009; [2002] 4 All ER 457; [2002] CP Rep 74; [2003] 1 WLR 722; [2003] HLR 244
17 Jul 2002
CA
Lord Justice Simon Brown, Lord Justice Brook and Lord Justice Dyson
Civil Procedure Rules, Contempt of Court
The applicant had been sentenced to nine months imprisonment for having broken his undertaking to the Court. He appealed against that sentence. The other party also sought to appeal other parts of the order. Held: An appeal limited to the sentencing part of a committal for contempt did not require leave to appeal, being as of right under the section, but an appeal against any other part did require leave, but could be heard either by a circuit judge in the County Court, or made direct to the Court of Appeal. Second Appeals would be the Court of Appeal.
Civil Procedure Rules 52.13 - Administration of Justice Act 1960 13
1 Citers

[ Bailii ]
 
Wallis v Valentine and Others Times, 09 August 2002; Gazette, 26 September 2002; [2002] EWCA Civ 1034; [2003] EMLR 175
18 Jul 2002
CA
Lord Justice Peter Gibson, Lord Justice Potter and Sir Murray Stuart-Smith
Defamation, Civil Procedure Rules
The claimant in a defamation case appealed a decision to strike out his claim on the basis that it was an abuse of process, being intended to act as an harassment of the defendant, or to cause commercial embarrassment or undue cost. Held: Applying Broxton, the case was properly struck out. The test of abuse was properly applied to the circumstances surrounding the issue of the claim, as well as its conduct after, and was objective. The overriding objective of the Civil Procedure Rules was relevant. The judge had looked at the claimant's case from its highest point, and being careful not to usurp a jury had correctly applied the test in Broxton.
Civil Procedure Rules
1 Cites

1 Citers

[ Bailii ]
 
Yenula Properties Ltd v Naidu Times, 29 August 2002
18 Jul 2002
ChD
Lloyd J
Landlord and Tenant, Housing, Civil Procedure Rules
The landlord appealed a finding of the county court that a notice of assured shorthold tenancy needed to be served on the tenant personally. Here the notice had been served on the proposed tenant's solicitors. Held: Though Galinski applied to a different procedure the analogy was appropriate. Service on the tenant's solicitors was adequate. Proceedings had been commenced anticipating no dispute as to fact. Once it became clear that there was such a dispute, the court should have expressly stated that it was to be treated as if it had never been allocated to fast track, and that it should accordingly proceed as a multi-track case, and an appeal would be to the High Court and not to the Court of Appeal.
Housing Act 1988 20 - Civil Procedure Rules Part 8 - Access to Justice Act 1999 (Destination of Appeals) Order 2000 (2000 No 1071) 4
1 Cites


 
Melissa Maguire v Ricardo David Molin Times, 12 August 2002; Gazette, 10 October 2002; [2002] EWCA Civ 1083
24 Jul 2002
CA
Lord Justice Brooke, Lord Justice Dyson and Mr Justice Wall
Civil Procedure Rules
A case had been originally dealt with under the fast track procedure, but after amendment, the amount at stake came to exceed £15,000. Held: It was permissible for a judge to continue to deal with a matter under the procedure. Relevant factors are the amount by which the claim comes to exceed the limit, and the status of the judge having conduct of the case. The rules had deliberately left the decision where it arose part way through a matter after an amendment, at the discretion of the judge. Where the increase was substantial, then the matter should normally be re-allocated, even though delay might occur.
Civil Procedure Rules 26.8(1) 26.7(3) 26.10
[ Bailii ]

 
 Brazil v Brazil; CA 31-Jul-2002 - Times, 18 October 2002; [2002] EWCA Civ 1135; [2003] CP Rep 7

 
 Mohamad Ali Aoun v Hassan Bahri, Costas Angelou; CA 31-Jul-2002 - [2002] EWCA Civ 1141

 
 Sengupta v Holmes and Others, Lord Chancellor intervening; CA 31-Jul-2002 - Times, 19 August 2002; Gazette, 10 October 2002; [2002] EWCA Civ 1104
 
Compagnie Noga D'Importation et D'Exportation Sa v Australia and New Zealand Banking Group Ltd. and others [2002] EWCA Civ 1142; [2003] 1 WLR 307; [2003] CP Rep 5
31 Jul 2002
CA

Litigation Practice, Civil Procedure Rules
If the court wishes to enable a party to appeal against a particular finding contained in the judgment, it may make a declaration embodying that finding.
Civil Procedure Rules
1 Citers

[ Bailii ]
 
Three Rivers District Council and Others, HM Treasury, v HM Treasury, The Governor and Company of the Bank of England (No 4) Times, 04 October 2002; Gazette, 10 October 2002; [2002] EWCA Civ 1182; [2003] 1 WLR 210; [2002] 4 All ER 881; [2003] CP Rep 9; [2003] CPLR 181
7 Aug 2002
CA
The Master of The Rolls, Lord Justice Chadwick And Lord Justice Keene
Litigation Practice, Civil Procedure Rules
The claimants had suffered having lost deposits with the Bank of Credit and Commerce International. They claimed their losses from the respondents as regulators of the bank, for negligence and misfeasance in public office. The action was based upon the Bingham report, and they sought disclosure of documents provided to the Enquiry. They appealed findings that the actual respondents to the application did not have possession of the documents sought. The Treasury cross-appealed an order not requiring the claimant to specify the documents sought, saying that the threshold condition under the rules had not been met. Held: It was not necessary to show that it was more likely than not that the documents would be of assistance. The tests were to be applied to the class of documents, and not each document in turn. Appeals dismissed. ""likely" [within the rules] does not carry any necessary connotation of "more probable than not". It is a word which takes its meaning from context. And where the context is a jurisdictional threshold to the exercise of a discretionary power, there may be good reason to suppose that the legislature - or the rule-making body, as the case may be - intended a modest threshold of probability."
Civil Procedure Rules 31.17(3)(a)
1 Cites

1 Citers

[ Bailii ]
 
Malkinson v Trim Times, 11 October 2002; Gazette, 17 October 2002
20 Sep 2002
CA
Potter LJ, Chadwick LJ, Wall J
Costs, Legal Professions, Civil Procedure Rules
The solicitor had successfully defended proceedings brought against him personally, but employing his own firm to represent him. He sought his costs. The claimant disputed his right to costs. Held: The claimant had served a notice of discontinuance of the action, and by doing so made himself liable for costs. The judge had applied the London Scottish case. There should be no difference between work done by an employee of a solicitor, and work done by a partner. Rule 48.6 had not changed the situation.
Civil Procedure Rules 48.6
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Hall v Rover Financial Services (GB) Ltd (t/a Land Rover Financial Services) Times, 08 November 2002; Gazette, 21 November 2002
10 Oct 2002
CA
Tuckey, Longmore LLJ
Costs, Civil Procedure Rules
The claimant had won her case, but been deprived of her costs. She claimed for conversion after she had purchased a car without knowledge of it having been on hire purchase, and after it was seized by the finance company. The judge had considered that she should have been suspicious. Held: The judge had found that each of the circumstances which might have caused suspicion in other minds had failed to do so in the claimant's mind. For a successful party to be deprived of her costs, any misconduct had to relate to the proceedings themselves. These issues related to credit, and not to the proceedings. The Civil Procedure Rules had not changed this.
Hire Purchase Act 1974 27(2) - Civil Procedure Rules 44.3

 
Brawley v Marczynski and Another [2003] 1 WLR 813; Times, 07 November 2002; Gazette, 09 January 2003; Gazette, 16 January 2003; [2002] EWCA Civ 1453
21 Oct 2002
CA
Aldous, Tuckey, Longmore LLJ
Costs, Civil Procedure Rules, Legal Aid
The defendants appealed an award of costs on an indemnity basis against them in the favour of a legally aided claimant. Held: Indemnity costs were often intended to indicate disapproval of a party's behaviour in an action, and were awarded in several and discretionary circumstances. It was not an objection of principle to say that a legally aided litigant would not recover the difference between standard and indemnity costs, and that therefore indemnity costs should not be awarded in favour of a legally aided claimant. Appeal refused.
Civil Procedure Rules
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1 Citers

[ Bailii ]
 
Spencer v Sillitoe and Another [2002] EWCA Civ 1579; [2003] EMLR 207; [2003] EMLR 10
22 Oct 2002
CA
Simon Brown VP CA, Buxton, Carnwath LJJ
Civil Procedure Rules, Defamation
Appeal from a decision of Morland J, who granted the defendants summary judgment under Civil Procedure Rule 24(2)(a)(2), finding that the claimant, Mr Spencer, had no real prospect of succeeding on his claim. Held: Buxton LJ said: "Bearing in mind the emphasis placed on the right to jury trial in section 69 [of the Senior Court Act 1981] and the analogy drawn by this court in Alexander with the criminal practice in Galbraith, the question in a case such as the present comes down to whether there is an issue of fact on which, on the evidence so far available, the jury could properly, without being perverse, come to a conclusion in favour of the claimant.
That question has to be answered against the background of the great respect that is paid to a jury's assessment of witnesses after seeing and hearing them, and hearing them cross-examined. It is unlikely that a judge will be able to find that a witness will necessarily be disbelieved by a jury; or that for a jury to believe him would be perverse; when he has not actually heard that witness give evidence and be cross-examined: unless, of course, there is counter evidence that plainly demonstrates the falsity of the witness's evidence, as opposed, in this case, to rendering it, in the judge's view, implausible."
Civil Procedure Rules 24(2)(a)
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1 Citers

[ Bailii ]
 
Wilkey and Another v British Broadcasting Corporation and Another Times, 08 November 2002; Gazette, 05 December 2002; [2002] EWCA Civ 1561; [2003] 1 WLR 1; [2003] 1 WLR 1
22 Oct 2002
CA
Simon Brown, Buxton, Carnwath LLJ
Civil Procedure Rules
The applicant's claim had been dismissed for late service. The defendant had in fact received the documents, but the service appeared deemed to be out of time. The subsequent decisions of Anderton and Godwin meant that the judge's reasoning no longer applied. Held: In such cases the discretion available to the court under the rules should be exercised, if necessary to dispense with formal service. However the doubts which were understandable during the transitional period as the new rules bedded down had now been clarified The rules were intended to be applied strictly and should now be so applied.
Civil Procedure Rules 6.7(1) 6.9
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1 Citers

[ Bailii ]
 
North East Lincolnshire Borough Council v Millenium Park (Grimsby) Ltd Times, 31 October 2002; [2002] EWCA Civ 1719
23 Oct 2002
CA
Thorpe, Rix, Arden LLJ
Land, Civil Procedure Rules
An agreement was made for a redevelopment of land. The council sought an order requiring specific performance by the respondent of its obligations. The council sought summary judgment, which the respondent resisted claiming that it was presently impossible to proceed. Held: The judge had been wrong, on an application for summary judgement, to proceed on a mini-trial to see whether a proper issue as to impossibility arose. There was doubt on another issue as to the need for a roundabout, and it was wrong to order the company to build it. The proper test was to ask whether the defendant had an arguable case, the judge should not decide it as at a final action.
Civil Procedure Rules
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[ Bailii ]
 
Individual Homes Ltd v Macbream Investments Ltd Times, 14 November 2002; Gazette, 28 November 2002
23 Oct 2002
ChD
Alan Steinfeld QC
Costs, Civil Procedure Rules
The claimant had in the course of proceedings obtained an order requiring an employee of the third party to attend as a witness. That third party now sought to be joined so as to claim its costs. Held: The Act and the rules allowed the court to make an order for costs against a party in favour of a third party. The claimant should pay their reasonable costs.
Supreme Court Act 1981 51 - Civil Procedure Rules 48.2
1 Cites


 
In re T (a Child) (Contact: Alienation: Permission to Appeal) Times, 30 October 2002; [2002] EWCA Civ 1736; [2003] 1 FLR 531
24 Oct 2002
CA
Thorpe, Rix, Arden LLJ
Children, Civil Procedure Rules
After a judgment the parties sought to appeal. Held: The judge had failed to make a finding on a critical issue in the case, namely whether or not the mother of the child concerned had "even if prompted only at a subconscious level, nevertheless deliberately engaged in alienation." Whilst some circumstances might require an application for leave to appeal direct to the Court of Appeal, the parties should normally always first apply for leave to the judge whose decision was to be appealed. Where possible the question of appeal should be addressed in advance, so as to allow the judge when giving his opinion to give appropriately detailed reasons. When judgment was given, an advocate ought immediately to draw the judge’s attention to any material omission of which he was aware.
The court discussed the need to re-examine the failure to enforce contact orders: "I reject [counsel's] dismissive submission that the Strasbourg cases add nothing to the domestic jurisprudence. Those cases as they stand suggest that the methods and levels of investigation that our courts have conventionally adopted when trying out issues of alienation may not meet the standards that Arts 6 and 8 . . require. There are policy issues here that the Government and the judiciary may need to consider collaboratively."
Civil Procedure Rules Part 52
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1 Citers


 
James v Baily Gibson and Co (a firm) Gazette, 28 November 2002
30 Oct 2002
CA
Lords Justice Judge and May
Civil Procedure Rules, Human Rights
The claimant succeeded in an action for negligence against the respondent solicitors. The court required her to submit to a psychiatric examination to allow assessment of her claim. In default the entire action was to be stayed. She refused, and appealed, saying that her right to a fair trial had been infringed. Held: The court had no power to order a rehearing of matters rejected at previous hearings. However the claimant had a duty to co-operate, and the stay was correct, but not as to all the heads of damages claimed, and the order was varied accordingly.
Access to Justice Act 1999 54(4) - Civil Procedure Rules 52.3.7 - European Convention on Human Rights 6(1)

 
Bell Electric Ltd v Aweco Appliance Systems Gmbh and Co Kg Times, 20 November 2002; [2002] EWCA Civ 1501
31 Oct 2002
CA
Potter, Carnwath LJJ
Costs, Civil Procedure Rules
The respondent sought to appeal. The claimant requested the court to order that as a pre-condition of being allowed to appeal, the respondent should pay into court, or give adequate security for, the costs awarded at first instance, even though there was no evidence that a vigorously followed enforcement would not succeed if the appeal failed. Held: There was no reason in principle to say the court had no jurisdiction to make such an order in appropriate circumstances, such as the respondent being already in breach, the refusal of a stay, or that the failure to pay was based upon a cynical taking advantage of court rules.
Civil Procedure Rules 52.9
[ Bailii ]
 
E I Du Pont de Nemours and Co v S T Dupont (1) Times, 07 November 2002; Gazette, 09 January 2003; [2003] EWCA 1368
31 Oct 2002
ChD
Neuberger J
Intellectual Property, Evidence, Civil Procedure Rules
Parties appealed from decisions of the Trade Marks Registry, and requested leave to introduce new evidence. Held: It was not agreed what rules applied on appeals under the 1938 Act. The Trade Mark system had public interest effects as well as private law. The rules governing appeals were therefore different from other regimes. The courts should adopt a more relaxed attitude, and treat the appeal as a full re-hearing rather than as a review, and that, accordingly fresh evidence might be admissible.
Trade Marks Act 1938 18 - Civil Procedure Rules 52.11(2)
1 Cites

1 Citers


 
Mamidoil-Jetoil Greek Petroleum Company Sa and Another v Okta Crude Oil Refinery AD Times, 27 December 2002; Gazette, 30 January 2003; [2002] EWHC 2210 (Comm); [2003] 1 Lloyd's Rep 1
4 Nov 2002
ComC
Aikens J
Costs, Civil Procedure Rules
One party had made a formal offer of settlement under the Rules, which had been declined, but the offer made was more favourable to him than the order which had eventually made. Held: The rejecting party should normally pay costs on an indemnity basis and interest at a higher rate as from the date of rejection. This might be avoided where the rejecting party persuaded the court that it had a proper reason for the rejection for example its own inability to assess the claim because of the failure of the offering party to make adequate disclosure.
[ Bailii ]
 
Lucas v Millman Times, 22 November 2002; Gazette, 09 January 2003
5 Nov 2002
QBD
Kennedy LJ, Pitchers J
Legal Professions, Civil Procedure Rules
The Solicitor's Disciplinary Tribunal had decided that the solicitor had no case to answer. The complainant sought to appeal under the 1974 Act. Held: The proper respondent to such an appeal was the solicitor himself. The Law Society and the Tribunal were to be notified of the appeal, but were not parties to it.
Solicitors Act 1974 49(2) - Civil Procedure Rules 52

 
Taylor v Anderson and Another Times, 22 November 2002; Gazette, 09 January 2003
7 Nov 2002
CA
Chadwick LJ, Sir Denis Henry
Civil Procedure Rules
The claimant sought to overturn an order striking out his claim for damages for personal injury, after inordinate delay in prosecuting his claim. Held: It will be rare for a claim to be struck out for such a reason under the transitional procedures under the new Rules. There had to be some considerable risk of a fair trial having become impossible. The judge's findings did not support the strike out. Witness statements were still available. There was no unequivocal affirmative answer to the question of whether a fair trial would not now be possible.
Civil Procedure Rules 51
1 Citers


 
Three Rivers District Council and Another v Bank of England [2002] EWHC 2309 (Comm)
8 Nov 2002
ComC
Tomlinson J
Civil Procedure Rules
The court considered the element of necessity under the rule.
Civil Procedure Rules 31.17(3)(b)
[ Bailii ]

 
 Assicurazioni Generali Spa v Arab Insurance Group (BSC); CA 13-Nov-2002 - Times, 29 November 2002; Gazette, 23 January 2003; [2002] EWCA Civ 1642; [2003] 1 WLR 577; [2003] Lloyds Rep IR 131; [2003] 1 All ER (Comm) 140
 
CIBC Mellon Trust Company and others v Mora Hotel Corp Nv and Another Times, 28 November 2002; Gazette, 23 January 2003; [2002] EWCA Civ 1688
19 Nov 2002
CA
Peter Gibson, Mance, Hale, LJJ
Costs, Civil Procedure Rules
A party had been ordered to pay into court as a condition of an application to set aside a judgment, a substantial sum in respect of past costs, and also as security for costs to be incurred. The defendant appealed. Held. The judge had not differentiated between the two. On an application for security for costs, a court could look to the resources which might be available to the party. That might also be relevant when ordering payment of past costs, but the considerations differed. In this case there was no absence of good faith as in Oury. The order was also wrong in being, in reality, directed against a third party against whom no costs order could properly be made. The element relating to security for future costs stood.
Civil Procedure Rules 3.1(2)(f) 3.1(3)(a) 3.1(5)
1 Cites

[ Bailii ]
 
Powell v Herefordshire Health Authority [2002] EWCA Civ 1786
27 Nov 2002
CA
Kay LJ, Phillips MR, Dyson LJ
Civil Procedure Rules, Costs
The defendant appealed an order that it should pay interest on the costs of the claimant from a date in 1994 when interim judgement had been given, even though damages were finally assessed only in 2001, and the costs had not yet been incurred. Held: The court had not had referred to it the provisions of the rule. That rule gave the court a discretion as to the date form which interest was to be awarded on costs, and the order had been made per incuriam.
Civil Procedure Rules 44.3(6)(g)
[ Bailii ]

 
 Chase v Newsgroup Newspapers Ltd; CA 3-Dec-2002 - Times, 31 December 2002; [2002] EWCA Civ 1772; [2003] EMLR 218; [2003] EMLR 11
 
Arsenal Football Club plc and Others v Elte Sports Distribution Ltd Times, 27 December 2002
10 Dec 2002
ChD
Vos QC
Intellectual Property, Civil Procedure Rules
The claimant alleged that the respondent had unlawfully made use of photographs of its footballers in a calendar. The respondent asked the court to strike out the claim as merely speculative, and the claimant sought pre-action disclosure. Held: The intention of Parliament had been to restrict the people who were able to pursue a claim for copyright infringement to the copyright holder. The claimant was not such. The correct route was not to strike the action for abuse of process as merely speculative, but since the claimant was entitled to disclosure as of right, to give the respondent the opportunity to apply again after disclosure.
Civil Procedure Rules 31
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Ullah and Others, Ahmed v Pagel, Scallan, Kennedy Times, 20 January 2003; [2002] EWCA Civ 1793
12 Dec 2002
CA
Simon Brown, May, Clarke LJJ
Elections, Civil Procedure Rules
The claimants sought to issue election petitions to challenge the results of local elections. The petitioners had complied with all the rules save that they had failed to serve the notice of presentation within the five day period. The claimants argued that the Civil Procedure Rules took sway over the Election Rules, and that the before the court had a discretion to waive the time limit. Held: The Rule was expressed particularly strongly, and it was not possible to construe it in such a way as to allow a discretion. Timeous compliance was at its heart. The statute had to be looked at on its true construction to see whether any discretion existed.
Representation of the People Act 1983 163(1) - Election Petition Rules 1960 (1960 No 543) 6(1) 19(1)
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[ Bailii ]
 
In re McHugh Southern Ltd (in Liquidation) Times, 30 January 2003
12 Dec 2002
ChD
David Donaldson QC
Civil Procedure Rules, Human Rights
An order striking out a case for abuse by reason of the claimant's delay should only be made where the delay had lead to a situation where it was no longer possible to secure a fair hearing. Where a fair trial remained possible, the court could use some other remedy to penalise a delaying claimant. This was necessary to accord with the human right of receiving a fair trial within a reasonable time.
European Convention on Human Rights 6.1


 
 Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1); CA 19-Dec-2002 - Times, 28 December 2002; [2002] EWCA Civ 1889; [2003] 1 WLR 1511; (2003) 73 BMLR 1; [2003] Lloyds Rep Med 244; [2003] PIQR P20; [2003] WTLR 259; [2003] CP Rep 29; [2003] 3 All ER 162; (2004) 7 CCL Rep 5
 
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