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Litigation Practice - From: 1990 To: 1990

This page lists 48 cases, and was prepared on 02 April 2018.


 
 Donovan v Gwentoys Ltd; HL 1990 - [1990] 1 WLR 472; [1990] 1 All ER 1018

 
 Leicester Market Ltd v Grundy; 1990 - [1990] 1 WLR 112
 
Burgess v Stafford Hotel Ltd [1990] 1 WLR 1215
1990
CA

Litigation Practice
The court considered an application to strike out a notice of appeal on the basis that it showed no reaonable ground. Held: The court had such a power. It was "exercisable on the same basis as an application to strike out a pleading under RSC Ord 18, r19, where there is no possibility that the grounds in the notice are capable of argument or that the court would entertain new grounds relating to matters not raised in the court below. Such a power should be confined to clear and obvious cases, and should not be utilised where any extensive inquiry into the facts is necessary."
1 Citers


 
Rajski v Bainton (1990) 22 NSWLR 125
1990

Mahoney JA
Litigation Practice
New South Wales - in respect of a party or a witness, a charge of misconduct should be made only where the party making it satisfies himself that there are grounds for making it. Fraud must be pleaded specifically and with particularity. If a person is to be charged with doing or writing something which will involve serious consequences, the person is not to be condemned casually or by "inexact proofs, indefinite testimony, or indirect inferences"
1 Citers


 
The Goldean Mariner [1990] 2 Lloyd's Rep 215
1990
CA
Sir John Megaw, McCowan LJ, Lloyd LJ
Litigation Practice
Leave had been given ex parte to serve a number of defendant reinsurers outside the jurisdiction. Six were served with writs in identical form but each of the writs was addressed to the wrong defendant. A seventh defendant was not served with any writ but merely with an acknowledgment of service form bearing the names of all the defendants in the title. Did these steps engage the court's jurisdiction to exercise its discretion under RSC Order 2, rule 1(2). Phillips J. had held that they did not. Held: They did in relation to the six defendants, and by a majority also for the defendant who never received a writ. Lloyd LJ. agreed with Phillips J. that in the latter case the failure to serve anything more than an acknowledgement of service form was an omission so serious that it was not a failure to comply with the requirements of the Rules by reason of something left undone. McCowan LJ. and Sir John Megaw held in relation to the latter defendant that there had been an attempt to take a step in the proceedings but a failure to comply with the Rules as to what document should be served for that purpose. There was a purported commencement of proceedings within RSC Order 2, rule 1 in relation to which there had been a failure to comply with a requirement of the Rules.
1 Citers



 
 Shearson Lehman Hutton v Maclaine Watson (No 2); 1990 - [1990] 3 All ER 723

 
 Re Hetherington; 1990 - [1990] Ch 1

 
 Attorney General v Jones; CA 1990 - [1990] 1 WLR 859

 
 Johnson v Walton; 1990 - [1990] 1 FLR 350
 
In Re J [1990] FCR 193
1990

Cazalet J
Family, Litigation Practice
An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. The standards set for experts in civil cases apply equally in family proceedings.
1 Citers



 
 The Iran Nabuvat; CA 1990 - [1990] 1 WLR 1115
 
Filhol Ltd v Fairfax (Dental Equipment) Ltd [1990] RPC 293
1990


Intellectual Property, Litigation Practice
The defendant had lost an action on the design of dental pins used to create foundations for false teeth. He wanted to get onto the market with a product which was designed so as to avoid the construction of the patent claims found by both the High Court and the Court of Appeal. The patentee refused to acknowledge that the new product was outside the patent claims. Held: An injunction was granted and proceedings had to be brought for a declaration of non-infringement. Those proceedings were successful.
1 Citers


 
Crown Estates Commissioners v Dorset County Council [1990] Ch 297
1990

Millett
Estoppel, Litigation Practice
Res judicata (more properly estoppel per rem judicatam) is a form of estoppel which gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the decision may be wrong. If it is wrong, it must be challenged by appeal or not at all. As between themselves, the parties are bound by the decision, and may neither re-litigate the same cause of action nor re-open any issue which was an essential part of the decision. The doctrine comes into its own only when the decision is wrong; if it is right, it merely serves to save time and costs.
1 Citers


 
Beta Construction Ltd v Channel Four Television Co Ltd [1990] 1 WLR 1042; [1990] 2 All ER 1012
1990
CA
Stuart-Smith LJ, Neill LJ, Ralph Gibson LJ
Defamation, Litigation Practice
When considering the number of documents to be considered when deciding whether a defamation case should proceed before a judge or judge and jury, the court was entitled to look also at any specialised technical content of the documents and also amongst the factors to be considered are the additional length and cost of a jury trial compared with trial by judge alone. Stuart-Smith LJ identified four areas in which the efficient administration of justice might be made less than convenient if trial takes place with jury: The physical problem of handling large numbers of documents in the jury box; The prolongation of the trial because of the number and complexity of the documents; The increased expense, both by the added length of the [jury] trial and copying; and The risk that the jury may not understand the documents.
Supreme Court Act 1961 69
1 Cites

1 Citers



 
 Deutsche Schachtbauund Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd; HL 1990 - [1990] 1 AC 295
 
Derby and Co Ltd v Weldon (Nos 3 and 4) [1990] Ch 65; Times, 09 November 1990; [1989] 2 WLR 412
1990
CA
Lord Donaldson of Lymington MR, Staughton, Neill LJJ
Litigation Practice
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction. Held: The appeal failed. In the event of disobedience there was sufficient sanction in that the court could bar the defendant from defending. It was not concerned to enquire whether or not the order was enforceable in Panama.
Where a Mareva Order is breached, or there is a real risk of such breach, the appropriate first remedy is the appointment of a receiver over assets which are subject to the Mareva order.
Lord Donaldson MR said: "Courts assume, rightly, that those who are subject to its jurisdiction will obey its orders . . It is only if there is doubt about whether the order will be obeyed and if, should that occur, no real sanction would exist, that the court should refrain from making an order which the justice of the case requires.
This consideration led the Vice-Chancellor to examine the extent to which a Mareva injunction could be enforced against [the defendant] in Luxembourg . . This certainly is deserving of examination but, in the context of the grant of the Mareva injunction, I think that a sufficient sanction exists in the fact that, in the event of disobedience, the court could bar the defendant’s right to defend. This is not a consequence which it could contemplate lightly as it would become a fugitive from a final judgment given against it without its explanations having been heard and which might well be enforced against it by other courts." and
"In this situation I do not understand why the order that the assets vest in the receiver should only take effect if and when the order was recognized by the Luxembourg courts. True it is that CMI is a Luxembourg company, but it is a party to the action and can properly be ordered to deal with its assets in accordance with the orders of this court, regardless of whether the order is recognized and enforced in Luxembourg. The only effect of non-recognition would be to remove one of the potential sanctions for disobedience."
Neill LJ said: "Section 37(1) of the Act of 1981 gives the High Court a similar jurisdiction to appoint a receiver to that conferred for the grant of an injunction. The remedies are of course separate remedies and in some cases it may be appropriate to grant only one of those remedies rather than both. I am quite satisfied, however, that in this case the judge was right to appoint a receiver . . as well as granting an injunction."
1 Cites

1 Citers


 
De Bry v Fitzgerald [1990] 1 WLR 552; [1990] 1 All ER 560
1990
CA
Dillon LJ, Donaldson LJ, Staughton LJ
Litigation Practice, Costs
A request was made for security for costs in a large sum against a foreign resident party: "The more usual course might have been to order security, if security was to be ordered at all, in a relatively small sum in the first place, leaving the defendants to come back for further security as the matter progressed."
Lord Donaldson said that since the purpose of an order for security against a plaintiff ordinarily resident outside the jurisdiction, is to have a fund within the jurisdiction which will guarantee that any order for costs in favour of the defendant will be met, "it is a complete answer to an application for such an order that a fund already exists, at least if the Court can ensure that the fund will not be dissipated.
Staughton LJ said, in reliance upon Kevorkian v Burney (No 2) [1937] 4 All ER 468, that it is for the plaintiff to show that he has an asset within the jurisdiction which will remain here and then for the defendant to show, if he can, that the asset is worthless or not of sufficient worth to cover the costs.
1 Cites

1 Citers


 
Doorga v Secretary of State for the Home Department [1990] Imm AR 98
1990
CA
Lord Donaldson M.R
Immigration, Litigation Practice
The court contemplated the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged.
1 Citers


 
Begum v Secretary of State for the Home Department [1990] Imm AR 1
1990
CA
Lord Donaldson M.R
Immigration, Litigation Practice
The court was willing to contemplate the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged.
1 Citers


 
Berkeley Administration Inc v McClelland [1990] 2 QB 407; [1990] FSR 381; [1990] I LPr 772
1990
CA
Scott VC, Roch and Potter LJJ
Litigation Practice
There is no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole. The court discussed who had the benefit of cross undertakings given on interim injunctions applications, and referred to a note in the Supreme Court Practice and said: "These statements of principle justify, in my judgment, the proposition that (subject to any direction to the contrary a court may in a particular case give): (i) advantage can be taken of a cross-undertaking in damages by every defendant who was party to the action when the undertaking was granted; (ii) advantage cannot be taken of the cross-undertaking by persons who are not parties to the action, or, at least, do not become parties until after the order has been discharged.
That leaves outstanding the position regarding defendants who are joined as parties during the currency of the order. That state of affairs does not apply in the present case. I do not regard the correct answer as being clear from the decided cases, although I would, for my part, wish to extend the benefit of a cross-undertaking in damages to all defendants who became parties while the undertaking was in force." However: "There is, in my judgment, no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole."
1 Citers


 
Rickards v Rickards [1990] Fam 194
1990
CA
Lord Donaldson
Litigation Practice
The Court of Appeal considered the circumstances in which it could depart from its own earlier decisions under the residual principle. The court refused to follow a previous decision of the same court because, although the relevant House of Lords decision had been cited, the later court held that the earlier court had misread or misunderstood the House of Lords case. There was in any event no possibility of appeal from this decision, and the Court of Appeal could not avoid it.
1 Cites

1 Citers


 
In re Norway's Applications [1990] AC 723
1990
HL
Lord Goff
Litigation Practice
The house considered appeals from the two earlier applications, upholding the first and reversing the second.
Evidence (Proceedings in Other Jurisdictions) Act 1975
1 Cites

1 Citers


 
Higgins v J and C M Smith (Whiteinch) Ltd 1990 SC (HL) 63
1990
HL
Lord Jauncey of Tullichettle
Litigation Practice
Lord Jauncey of Tullichettle said: "Where there are concurrent findings of fact in the courts below generally this House will interfere with those findings only where it can be shown that both courts were clearly wrong. It is nothing to the point that this House might on the evidence have reached a different conclusion, The principle does not depend upon the advantage possessed by the judge of first instance of seeing and hearing the witnesses - that advantage will already have been reflected in the decision of the lower appellate court to confirm the findings of the judge."
1 Citers



 
 RG Carter Ltd v Clarke; CA 1990 - [1990] 1 WLR 578; [1990] 2 All ER 209
 
North West Water Ltd v Binnie and Partners [1990] 3 All ER 547
1990


Litigation Practice
In relation to court proceedings, it can be an abuse of process for a defendant to seek to reopen issues decided against it as defendant in previous court proceedings.
1 Citers


 
Temporal v Temporal [1990] 2 FLR 98
1990


Contempt of Court, Litigation Practice
A mandatory order is not enforceable by committal unless it specifies the time for compliance
1 Citers


 
Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36
1990
CA
Butler-Sloss LJ, Lloyd and Nicholls LJJ
Children, Litigation Practice
A child was made subject of wardship application after her half sister made allegations of sexual abuse against their father. In dealing with these proceedings, he sought disclosure of the records prepared by the social workers in the first case. He now appealed against a refusal of an order for their production. Held: The father's appeal failed. In general, such discovery is inappropriate, but the automatic refusal of such requests should be reconsidered. In an appropriate wardship case, a Family Division judge has the power to order the local authorities social workers' records about a child. To hold otherwise would deprive parties of a proper recourse to legal action. The court might first need himself to inspect such records to assist any decision about whether they might assist.
Butler-Sloss LJ said: "On the application of a party to the proceedings for disclosure of relevant documents the judge has a duty to weigh up competing public interests . . It is for the court on the application to decide whether the public interest in protecting the social work records overrides the public interest that the party to the proceedings should obtain the information he or she is seeking in order to obtain legal redress." and
"For my part, I consider that the strict approach developed in 1970 and followed in subsequent decisions must be relaxed in the light of the current legislation and modern opinion about greater openness in society. The DHSS issued guide-lines on the rights of access of the subject of social work files who had been in care in a series of directives from 1983. The Access to Personal Files Act 1987, which gives rights to access to certain documents, is another pointer in the same direction. The law of evidence must move with the times. None of this invalidates the general principle of public interest immunity, but it will undoubtedly have an effect on the balancing operation to be conducted by the judge."
1 Citers


 
Regina v Blandford Magistrates Court ex parte Pamment [1990] 1 WLR 1490
1990
CA
Lord Donaldson MR, Taylor LJ
Judicial Review, Litigation Practice
The Applicant was charged and remanded into custody by the Justices, having refused conditional bail. Bail was later granted, but he sought judicial review of the original remand decision, just before his trial, which then intervened. After the trial, the Divisional Court quashed the remand decision adjourning the claim for damages. It was said that section 18(a) prevented an appeal. The Justices sought to appeal to the Court of Appeal, contending that given the termination of the criminal trial, the jurisdictional bar enshrined in Section 18(1)(a) of the Supreme Court Act 1981 did not apply. Held: The Court did not have jurisdiction to consider the appeal. It was argued that when the judicial review application was heard by the Divisional Court, the criminal proceedings were no longer in existence.
Taylor LJ said: "If the Divisional Court's decision was not in a criminal cause or matter, in what type of proceeding was it made? It cannot have been a decision in vacuo and, for my part, I see no basis in principle or authority for attributing such a chameleon character to a cause or matter as to make it change from criminal to civil simply because the proceedings are concluded or because the review of the decision in such cause or matter may be too late to affect the outcome of the proceedings. In my opinion, the judgment of the Divisional Court in the present case was made in a criminal cause or matter".
Lord Donaldson MR, emphasizing the words of Lord Esher MR "at whatever stage of the proceedings the question arises" [in Ex parte Woodhall 20 QBD 832, at p. 836], added that this formulation: "is apt to include the stage at which proceedings are in contemplation, the stage during which they are being prosecuted and the stage which follows following the giving of the judgment of the court, a stage at which it can be said that the court is functus officio".
1 Cites

1 Citers


 
Loveday v Renton and Wellcome Foundation Ltd [1990] 1 Med LR 117; [1990] 1 MLR 1
1990

Stuart-Smith LJ
Litigation Practice
Stuart-Smith LJ said that there is no "generally accepted standard of scientific proof." The court rejected epidemiological evidence presented to it.
1 Citers



 
 Wakefield v Outhwaite; 1990 - [1990] 2 Lloyd's Rep 157
 
Iron Trade Mutual Insurance Co Ltd v J K Buckenham Ltd [1990] 1 All ER 808
1990

Rokison QC HHJ
Limitation, Litigation Practice
The negligence of the plaintiffs' insurance brokers led to the insurance policies being voidable for non-disclosure. Held: The plaintiffs suffered immediate damage on entering into the policies because they did not get the protection they should have had, even though the eventual uninsured losses and the avoidance of the policies were wholly contingent at the time the insurance agreements were made and might never have eventuated.
"But counsel for the plaintiffs emphasises that this is an application to strike out the plaintiffs' cause of action. It is well established that one should only do so on the ground that the cause of action is time-barred if it is a clear case. He submits that the question when the plaintiffs possessed sufficient relevant knowledge is a question of fact which is not appropriate to be decided at this stage. I agree. In my view this is a matter which must be investigated at trial. Whether it is done by way of a preliminary issue is a matter which may be decided hereafter."
Limitation Act 1980
1 Citers


 
Sociedade Nacional de Combustatives de Angola UEE v Lundqvist Fin Times, 06 February 1990; [1991] 2 QB 310; [1990] 3 All ER 283; [1991] 2 WLR 280
1990
CA
Beldam LJ, Staughton LJ, Sir Nicolas Browne-Wilkinson V-C
Litigation Practice
Large quantities of crude oil had been sold at an undervalue by a dishonest consultant and his associates. A Mareva injunction had been granted. The defendant objected to being required to disclose the extent of his foreign assets saying that such disclosure would lead him to incriminate himself in the UK. Held: A conspiracy was not an offence under the Theft Act, and that privilege was available because a charge of conspiracy was probable. The order to disclose should not be imposed where there were reasonable grounds for considering that he might thereby incriminate himself. Sir Nicolas Browne-Wilkinson V-C said that: "the clearer the facts alleged, the stronger will be the privilege against self-incrimination." Any provision that removes or restricts the privilege against self-incrimination must be strictly construed.
1 Cites

1 Citers


 
Thune v London Properties Limited [1990] 1 WLR 562
1990
CA
Bingham LJ
Litigation Practice
The court considered the applicability of the principles in Ladd v Marshall to an appeal from an interlocutory order being an application for security for costs. Held: The application to admit fresh evidence was refused. Bingham LJ: "There is nonetheless a clear duty on parties to present their full case at first instance, and it is very undesirable if interlocutory disputes are argued out afresh on appeal on different materials never put before the judge whose primary discretion it is. The defendants here, in my judgment, were put on inquiry and failed to deal with this point, although ease of enforcement is now known to be a very relevant consideration."
1 Cites

1 Citers



 
 Ashmore v British Coal Corporation; CA 1990 - [1990] 2 QB 338
 
Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731; [1990] Ch 98; [1990] 1 Lloyds Rep 120
1990
CA
Slade LJ, Dillon LJ
Judicial Review, Litigation Practice
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the Government of Dubai. The bank complained that large amounts of interest on certain deposits had been unlawfully diverted into their own pockets. The bank obtained an ex parte Mareva injunction and ancillary orders for disclosure of assets, but this was later discharged by Morritt J. on the grounds that important facts known to the Government of Dubai had not been disclosed. Held: The court refused to interfere with his exercise of his discretion. It was submitted on behalf of the bank that even where there had been non-disclosure on an ex parte application, the court should only discharge an injunction or refuse to continue an injunction if the court was satisfied that the non-disclosure was a deliberate attempt to mislead the court or a wilful failure to inquire as to the obvious. The phrase "whose . . affidavits" extends to any affidavit sworn by a deponent who is not a party, but which is procured by and filed or used on behalf of a party. A copy of an unprivileged document does not become privileged merely because the copy is made for litigious purposes.
Dillon LJ said: "It is now accepted in this Court that, even if there has been material non-disclosure, the Court has a discretion whether or not to discharge an order obtained ex parte and a discretion whether or not to grant fresh injunctive relief Discharge of the order is not automatic on any non-disclosure being established of any fact known to the applicant which is found by the Court to have been material."
Staughton LJ said that the bank had put forward a good arguable case, and a prima facie case for likelihood of dissipation: "In any event there was also non-disclosure to be considered before the injunction was continued. The authorities show plainly that non-disclosure will, in an appropriate case, not only be a ground for discharging an ex parte order, but also a ground for refusing to make a fresh order inter partes. At least in one respect there was here non-disclosure which was in my view both serious and culpable. The Galadaris had specified what they said was their defence to the claim, and there can scarcely be any more important topic of disclosure than that. As to culpability, it is said the Dubai Bank did not know the facts, and that those whom they consulted in the Government of Dubai had forgotten them. But the letters were still in the Government's possession . . Once serious and culpable non-disclosure was established, the Judge had a balancing task to perform. On the one hand if justice required that a fresh injunction should be granted (which in the Judge's view it did not, but the contrary was arguable), it might be thought unjust to refuse one on the grounds of non-disclosure. On the other hand the Courts must uphold and enforce the duty of disclosure, as a deterrent to others, if they are not to be deceived on ex parte applications. The conflict between those principles is well illustrated in a passage from the judgment of Lord Justice Woolf in the Behbehani case."
RSC (NI) Order Rulle 11
1 Citers


 
Gold Ocean Assurance Ltd v Martin [1990] 2 Lloyd's Rep 215
1990


Litigation Practice

1 Citers


 
Thompson Newspapers Ltd v Director of Investigation and Research (1990) 54 CCC 417
1990

Justice La Forest
Commonwealth, Litigation Practice
(Supreme Court of Canada) The court considered a claim to exercise the privilege against self-incrimination. Held: Whereas a compelled statement is evidence that would not have existed independently of the exercise of the powers of compulsion, evidence which exists independently of the compelled statements could have been found by other means and its quality does not depend on its past connection with the compelled statement. Accordingly evidence of the latter type is in no sense "testimonial" and PSI ought not to attach to it.
Justice La Forest: "there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence which could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the 'clues' provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been . . . the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernible. I believe its significance will be equally apparent.
The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused.. . . What prejudice can an accused be said to suffer from being forced to confront evidence 'derived' from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact." and
"In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind ...""
. . . In our judgment, the answer to the question posed by the Attorney General is "No". We say that for a number of reasons. First, there is no doubt, and indeed it is not disputed before this court, that the privilege against self-incrimination is not absolute and in English law Parliament has, for a variety of reasons, in a whole range of different statutory contexts, made inroads upon that privilege.
So far as the English courts are concerned, there is, as it seems to us, no doubt that the documents to which we have referred would be regarded as admissible as a matter of law, subject of course to the trial judge's discretion to exclude under section 78 of the Police and Criminal Evidence Act 1984.
The question which next arises is whether, in deference to the Strasbourg jurisprudence, this court should give a different answer to that which the English courts and the will of Parliament otherwise suggest. It seems to us that the distinction made in paragraphs 68 and 69 of the European Court of Human Rights's judgment in Saunders's case 23 EHRR 313, between statements made and other material independent of the making of a statement, is not only one to which we should have regard, but is one which, as it seems to us, is jurisprudentially sound. We say this for the reasons advanced in the judgment of La Forest J in the Thomson Newspapers case 67 DLR (4th) 161 which, via reference to the South African constitutional court's decision in Ferreira v Levin 1996 (1) SA 984, was before the European Court in Saunders's case. In our judgment, there is nothing in any of the speeches in Brown v Stott [2001] 2 WLR 817 which contradicts this conclusion. The Privy Council were seeking to limit the scope of the privilege against self-incriminating statements and pre-existing documents revealed by compelled statements were outwith their consideration."
1 Citers



 
 Golden Ocean Assurance Ltd v Martin ("The Goldean Mariner"); CA 1990 - [1990] 2 Lloyds Rep 210
 
Rakhit v Carty [1990] 2 QB 315
1990


Litigation Practice
A previous decision of the court was found to be within the normal categories of per incuriam, because the earlier decision was made in ignorance of a vitally relevant statutory provision, which showed it to be wrong. The earlier decision was therefore not followed
1 Citers


 
Derby and Co v Weldon (No 6) [1990] 1 WLR 1139; [1990] 3 All ER 263
3 Jan 1990
CA
Dillon, Taylor LJJ
Litigation Practice
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction. Held: An order that assets be delivered or transferred to a receiver was a usual one.
The appointment of a receiver over foreign assets is an in personam remedy. Dillon LJ said: "But the more recent developments of the law in relation to Mareva injunctions show, in my judgment, that those views are wrong. The jurisdiction of the court to grant a Mareva injunction against a person depends not on territorial jurisdiction of the English court over assets within its jurisdiction, but on the unlimited jurisdiction of the English court in personam against any person, whether an individual or a corporation, who is, under English procedure, properly made a party to proceedings pending before the English court. This is particularly underlined by the judgment of Lord Donaldson of Lymington MR in Derby & Co. Ltd. v. Weldon (Nos. 3 and 4) [1990] Ch 65 . . Another potential sanction for disobedience that would remain is that a defendant who disobeyed an order of the court could be barred from defending the proceedings.
In truth the original, somewhat territorial, approach in Ashtiani v. Kashi has been turned the other way round by the introduction of the so-called Babanaft proviso in Babanaft International Co. S.A. v. Bassatne [1990] Ch. 13. That was revised in Derby & Co. Ltd. v. Weldon (Nos. 3 and 4) and as so revised is of course the basic order in the present case. Application to a foreign court to recognise the order or to declare it enforceable is only necessary in so far as the order purports to have effect outside England and Wales and it is sought to affect by the order a person to whom the order is not addressed and who is not in certain categories of person subject to the jurisdiction of this court. To regard the grant of a Mareva injunction not as a matter of territorial jurisdiction to be exercised court by court throughout the various countries of the world where it may be appropriate but as a matter of unlimited jurisdiction in personam of the English court over persons who have properly been made parties, under English procedure, to proceedings pending before the English court is consistent with the approach of the English court to the appointment of receivers of the British and foreign assets of English companies. The court has always been ready to appoint a receiver over the foreign as well as British assets of an English company, even though it has recognized that in relation to foreign assets the appointment may not prove effective without assistance from a foreign court: In re Maudslay, Sons & Field; Maudslay v. Maudslay, Sons & Field [1900] 1 Ch. 602. Moreover where a foreign court of the country where the assets are situate refuses to recognise the receiver appointed by the English court, the English court will, in an appropriate case, do what it can to render the appointment effective by orders in personam against persons who are subject to the jurisdiction of the English court; see the helpful decision of Neville J. in In re Huinac Copper Mines Ltd.; Matheson & Co. v. The Company [1910] W.N. 218. Conversely the English court is - international convention apart - unwilling to exercise its powers within this country in support of a receiver appointed by a foreign court, save on very strictly limited traditional principles of international law: see Schemmer v. Property Resources Ltd. [1975] Ch. 273. Indeed, from the observations of Lord Diplock in Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A. [1979] A.C. 210, it would seem that before the enactment of the Supreme Court Act 1981 there could have been problems of jurisdiction in some cases. But provided that third parties do not invoke the jurisdiction of the English court for the protection of their own rights - as in British Nylon Spinners Ltd. v. I.C.I. Ltd. [1953] Ch. 19 - the foreign court is free to achieve its objectives by making orders in personam against persons who are subject to its jurisdiction."
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Mason v Desnoes and Geddes Ltd [1990] 2 AC 729; [1990] UKPC 15
2 Apr 1990
PC

Commonwealth, Litigation Practice
(Jamaica) A section enabled the Court to set aside a judgment where a party had not appeared at the trial. Held: The reference to "the Court or a Judge" made it clear that the jurisdiction may be exercised by a judge in chambers and: "…the application to set aside a default judgment is not the invocation of an appellate jurisdiction but of a specific rule enabling the court to set aside its own orders in certain circumstances where the action has never been heard on the merits."
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[ Bailii ]
 
Midland International Trade Services v Al Sudairy Unreported, 11th April 1990
11 Apr 1990
ChD
Hobhouse J
International, Litigation Practice
The court had power to order the payment of interest on a judgment of a court in Saudi Arabia even though a Saudi court would have applied Sharia law. That law follows the teaching in the Koran forbidding the payment or receipt of interest.
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Derby and Co Ltd And Others v Weldon And Others (No 9) [1991] 1 WLR 652; [1991] 2 All ER 901
25 Jul 1990
ChD
Mr Justice Vinelott
Litigation Practice, Evidence
The court considered the application of rules relating to the discovery of documents to material held on computer: "the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and whether stored in the computer itself or in back-up files, was a document" and ". . there can be no distinction in principle between the tape used to record a telephone conversation in Grant v Southwestern and County Properties Ltd, which was an ordinary analogue tape on which the shape of sound waves is, as it were, mimicked by the pattern of the chemical deposit on the tape, and a compact disc or digital tape on which sound, speech as well as music, is mapped by co-ordinates and recorded in the form of groups of binary numbers. And so no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analysed and recorded in a variety of media in binary language."
The plaintiffs provided discovery by way of computer printouts. Some defendants sought access to the computer to obtain information about the transactions at issue. The plaintiffs resisted saying that the computer was not a document subject to discovery. Held: The computer database was a document capable of discovered. However the actual discovery ordered would be limited to matter material to the action, and made subject to other conditions so as to protect the records.
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1 Citers

[ lip ]
 
Re R (A Minor) (Experts' Evidence) [1990] EWHC Fam 1; [1991] 1 FLR 291; [1991] Fam Law 303
27 Jul 1990
FD
Cazalet J
Children, Litigation Practice
The court gave a general indication of the criteria which are applicable to the preparation of the reports of expert witnesses to be called in child cases.
[ Bailii ]
 
Derby and Co Ltd v Weldon (No 8) [1991] 1 WLR 73; [1990] 3 All ER 762; Times, 29 August 1990; (1990) 136 SJ 84
27 Jul 1990
CA

Litigation Practice
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used. Held: The documents and all copies were to be returned. The defendant was seeking to take advantage of what was an obvious mistake. The court would not support them, but use its equitable jurisdiction.
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 Geogas SA v Trammo Gas Ltd (The Baleares); CA 26-Nov-1990 - [1991] 3 All ER 554; [1991] 1 WLR 776; [1993] 1 Lloyd's Rep 215; Times, 26 November 1990; [1991] 2 Lloyds Rep 318
 
ISC Technologies Limited v Radcliffe Unreported, December 7, 1990
7 Dec 1990

Millett J
Litigation Practice
It was alleged that a Mr Guerin had committed a fraud on the arms manufacturer Ferrari. Held: The constructive trust provision in RSC Order 11, r 1(1)(t) applied only if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to a knowing receipt abroad of the proceeds of such fraud. The rules allowing service out of the jurisdiction where the defendant's alleged liability arose "out of acts committed, whether by him or otherwise, within the jurisdiction" only applied if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to knowing receipt abroad of the proceeds of such a fraud.
Rules of the Supreme Court Order 11 r1(1)(t)
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 Compagnia Italiana Alcool Sas di Mario Mariano and Co v Commission of the European Communities; ECJ 19-Dec-1990 - C-358/90
 
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