Tag: Civil Procedure Rules

Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others (No 2): ChD 30 Mar 2000

The new Civil Procedure Rules had not substantially affected the rules on costs following the event of a trial. The discretion in a judge as to the order for costs had been correctly stated in Elgindata, and approved in Phonographic Performance Ltd v AEI Rediffusion Music Ltd.

Citations:

Times 30-Mar-2000

Jurisdiction:

England and Wales

Citing:

See Also – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD 8-Feb-2000
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . .
See Also – Gwembe Valley Development Company Ltd v Koshy and Another CA 25-Jul-2001
Application to amend order under slip rule. . .

Cited by:

Cited – Amber v Stacey CA 15-Nov-2000
The defendant challenged an order that he should pay the plaintiff’s costs, having made an offer in correspondence which was not accepted.
Held: The claimant had exaggerated his claim, but the defendant’s offer had been inadequate. The judge’s . .
See Also – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD 8-Feb-2000
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . .
See Also – Gwembe Valley Development Company Ltd v Koshy and Another CA 25-Jul-2001
Application to amend order under slip rule. . .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 19 November 2022; Ref: scu.81097

Scammell and Others v Dicker: CA 21 Dec 2000

A part 36 offer can be withdrawn at any time before it is accepted or expires. The rules can not force an offer to be left open. Clear words would have been required within the rules to impose such an obligation. The actual words referred to offers ‘expressed’ to be open for 21 days, but the intention was to create an ‘unless’ condition not a positive obligation. Such offers are subject to the general rules of contract, including offer and acceptance and the rules merely provide an advantage to the parties in dealing with each other. A court will strive to give effect to agreements, unless not intended to create legal relations, particularly when the agreement is a compromise of an existing dispute and when it has been acted on.

Judges:

Lord Justice Aldous And Lord Justice Mance

Citations:

Gazette 15-Feb-2001, Times 14-Feb-2001, [2000] EWCA Civ 352, [2001] CP Rep 64, [2001] CPLR 188, [2001] 1 WLR 631

Links:

Bailii

Statutes:

Civil Procedure Rules Part 36

Jurisdiction:

England and Wales

Citing:

See Also – Scammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appeal from – Mamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .

Cited by:

Cited – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
See Also – Scammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appealed to – Mamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .
Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 03 November 2022; Ref: scu.147385

Deg-Deutsche Investitions Und Entwicklungsgesellschaft Mbh v Koshy and Others: ChD 13 Jan 2000

Once a legal aid certificate is revoked the party is deemed by statute never to have had the benefit of a legal aid certificate. The rules relating to assessment of costs which applied when a party had legal aid did not therefore apply. An order however which has once been made cannot be varied subsequently by reference to those rules, even if the order was made in the light of them.

Citations:

Times 19-Jan-2000, Gazette 13-Jan-2000

Statutes:

Civil Legal Aid (General) Regulations 1989 130, Civil Procedure Rules Part 3.1(7)

Jurisdiction:

England and Wales

Legal Aid, Costs, Civil Procedure Rules

Updated: 03 November 2022; Ref: scu.79884

Westbrook Dolphin Square Ltd v Friends Life Ltd: CA 18 May 2012

W appealed against the striking out as an abuse of its request for a declaration that the tenants of the flats at Dolphin Square were entitled to acquire its freehold from the respondents. They had previously served and withdrawn a notice claiming the right.
Held: The tenants’ appeal was allowed. CPR 38.7 did not operate to restrict the right gfiven by the 1993 Act to make a second claim after a period of one year had expired from the withdrawal of the first. The statutory right to serve successive notices necessarily carried with it the right to make successive applications to the court.

Judges:

Lord Neuberger MR, Longmore. Lewison LJJ

Citations:

[2012] EWCA Civ 666, [2012] HLR 38, [2012] WLR(D) 151, [2012] 2 EGLR 76, [2012] LandTR 36, [2012] 1 WLR 2752, [2012] 4 All ER 148, [2012] CP Rep 33, [2012] 32 EG 42, 2012] 2 PandCR 8

Links:

Bailii, WLRD

Statutes:

Leasehold Reform, Housing and Development Act 1993 22 823, Civil Procedure Rules 38.7

Jurisdiction:

England and Wales

Citing:

Appeal from – Westbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd ChD 14-Sep-2011
The defendant sought to have the claim struck out as an abuse of process, saying that it was a repeat of a claim previously made and withdrawn.
Held: The application succeeded. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Civil Procedure Rules

Updated: 22 October 2022; Ref: scu.457822

PHI Group Ltd v Robert West Consulting Ltd: CA 10 May 2012

The court considered the application of rule 36, and the general rules as to costs, in relation to contribution proceedings between two parties both liable to a claimant for the same damage.

Judges:

Rix, Lloyd, Stanley Burnton LJJ

Citations:

[2012] EWCA Civ 588

Links:

Bailii

Statutes:

Civil Procedure Rules 36

Jurisdiction:

England and Wales

Civil Procedure Rules, Costs

Updated: 21 October 2022; Ref: scu.457605

CTB v News Group Newspapers Ltd and Another: QBD 25 Nov 2011

The second defendant sought permission to read a statement in open court. In the claim, the claimant sought an injunction to restrain the first defendant from seeking to publish details of an extra marital affair with the second defendant. In the course of several hearings, statements had been made about her, and she wished to correct them.

Judges:

Eady J

Citations:

[2011] EWHC 3099 (QB)

Links:

Bailii

Statutes:

Civil Procedure Rules 53

Civil Procedure Rules

Updated: 01 October 2022; Ref: scu.450074

Henry v News Group Newspapers Ltd and Others: QBD 26 May 2011

The defendant, having been sued for defamation by the claimant social worker pleaded justification and now sought third party disclosure against the hospital involved and against the police of documents which might support the stories it had published.

Judges:

Eady J

Citations:

[2011] EWHC 1364 (QB)

Links:

Bailii

Statutes:

Civil Procedure Rules 31.17

Defamation, Civil Procedure Rules

Updated: 13 September 2022; Ref: scu.440196

Rajval Construction Ltd v Bestville Properties Ltd: CA 14 Dec 2010

The court was asked what the proper approach of the court should be to judgments obtained in default where there has been non-compliance with the requirements of CPR 7.8. That rule provides under the heading ‘Form for Defence etcetera must be served with Particulars of Claim’.

Citations:

[2010] EWCA Civ 1621

Links:

Bailii

Statutes:

Civil Procedure Rules 7.8

Jurisdiction:

England and Wales

Civil Procedure Rules

Updated: 03 September 2022; Ref: scu.430488

Revenue and Customs v Blue Sphere Global Ltd: CA 16 Dec 2010

The respondent having successfully defended the claim by the Revenue, now sought its costs on an indemnity basis having made a Part 36 offer. The Revenue responded that Part 36 did not apply to such claims.

Judges:

Carnwath , Moses LJJ

Citations:

[2010] EWCA Civ 1448, [2011] STC 547, [2011] BVC 30, [2011] STI 129

Links:

Bailii

Statutes:

Civil Procedure Rules

Jurisdiction:

England and Wales

Litigation Practice, Civil Procedure Rules

Updated: 29 August 2022; Ref: scu.427213

Vaseeharan and Another v Uthayaranjan: ChD 21 May 2010

Each party sought summary judgment in the case

Judges:

Roth J

Citations:

[2010] EWHC 1083 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 24

Jurisdiction:

England and Wales

Cited by:

Cited – Lewis v Client Connection Ltd ChD 6-Jul-2011
The claimant alleged infringement of his registered trade marks ‘Money Saving Expert’ and associated terms. The defendant operated a service trading as ‘Money Claiming Expert’. Both services included advising those who might wish to claim refunds . .
Lists of cited by and citing cases may be incomplete.

Contract, Civil Procedure Rules

Updated: 18 August 2022; Ref: scu.415980

Grosvenor Chemicals Ltd and Others v UPL Europe Ltd and Others: ChD 26 Jul 2017

Application under CPR r81.14(1) for permission to bring proceedings for committal for interference with the administration of justice. That is covered by Section III of CPR Part 81 (r81.12 to r81.14). The interference relied on is the use of documents disclosed in an action for a collateral purpose, contrary to CPR r31.22

Judges:

Birss J

Citations:

[2017] EWHC 1893 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Contempt of Court, Civil Procedure Rules

Updated: 07 August 2022; Ref: scu.591242

In Re Banco Nacional De Cuba: ChD 7 Jun 2001

Where it was alleged that shares in a UK company had been sold at an undervalue, so as to allow a challenge in insolvency proceedings, the leave of the court was still required if the pleadings were to be served abroad. When the court considered such an application, it had to look not just at the fact that the property to which the claim related is in the jurisdiction, but also at reality of the extent of the connection with the UK, and the difficulties if any of enforcement. Here the claimant had not demonstrated that the purpose of the transaction might be to defeat creditors, and one would, in its own jurisdiction, enjoy immunity from enforcement. Section 423 ‘extends to any claim for relief, whether for damages or otherwise, so long as it is related to property located within the jurisdiction’ and ‘the claim under section 423 relates to the shares and particularly the disposition of the shares.’ By CPR 6.20(10) the court may assume jurisdiction if the whole subject-matter of the claim relates to property situated in England.
Lightman J: ‘The critical differences between RSC, O 11, r 1(1)(g) and CPR 6.20(10) is the substitution for the words ‘land situate within the jurisdiction’ of the words ‘relates to property located within the jurisdiction’. The implications are that: (1) the rule is no longer limited to land and now extends to personal property; and (2) instead of the whole claim having to be confined to a claim to a proprietary or possessory interest, it is sufficient that the whole claim relates to property. The evident purpose of the new rule is to lay down a single rule in place of the three earlier rules which embraces and extends beyond the contents of those rules. It is to be noted that at p 128 of the Autumn 2000 Civil Procedure (‘White Book’) the comment is made on CPR 6.20(10): ‘This wide and new provision is no longer confined to land and the old cases are redundant.’ In my view on its proper construction the rule cannot be construed as confined to claims relating to the ownership or possession of property. It extends to any claim for relief (whether for damages or otherwise) so long as it is related to property located within the jurisdiction. This construction vests in the Court a wide jurisdiction, but since the jurisdiction is discretionary the Court can and will in each case consider whether the character and closeness of the relationship is such that the exorbitant jurisdiction against foreigners abroad should properly be exercised.’

Judges:

Lightman J

Citations:

Times 18-May-2001, Gazette 07-Jun-2001, [2001] 1 WLR 2039

Statutes:

Civil Procedure Rules 6.20., Insolvency Act 1986 423

Jurisdiction:

England and Wales

Cited by:

Cited – Shahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Ashton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Lists of cited by and citing cases may be incomplete.

International, Civil Procedure Rules, Insolvency, Litigation Practice

Updated: 24 July 2022; Ref: scu.81730

Tombstone Ltd v Raja and Another; Raja v Van Hoogstraten and others (No 9): CA 17 Dec 2008

The claimant complained of an irregularly obtained judgment. The defendant had obtained an amendment to a writ of sequestration in the course of a bitterly fought dispute bewteen the defendant and the owner of the claimant. The judge had found the irregularity proved, but declined to set the order aside. The claimant now said that the judge did not have a discretion not to set the order aside.
Held: The claimant knew of the fault in the order but had not complained of it at later hearings when that suited it.
The court’s inherent powers ‘are complementary to its powers under rules of court; one set of powers supplements and reinforces the other’. The court approved the statement that ‘the inherent jurisdiction may supplement but cannot be used to lay down procedure which is contrary to or inconsistent with a valid rule of the Supreme Court’. This applies in relation to the CPR in the same way that it applied when the previous rules, the RSC, were in force.
The intervener sought to set aside an order made which affected it as to the alleged irregularity of an order obtained.
Held: The primary objective was to obtain a just result. Applications to set aside orders made without notice were subject to rule 23.10. That rule gave a discretion to the judge. Where a third party was affected the normal consequence would be a setting aside of the order obtained, but where the interests of justice required it in an exceptional case, the order might not be set aside. The court’s inherent jurisdiction should not be used where the issue was covered by the rules, and it should not be used to obtain a different conclusion.

Judges:

Mummery LJ, Dyson LJ, Maurice Kay LJ

Citations:

[2008] EWCA Civ 1444, [2009] 1 WLR 1143

Links:

Bailii, Times

Statutes:

Civil Procedure Rules 23.9 23.10

Jurisdiction:

England and Wales

Citing:

Cited – Gosset v Howard 1845
Sequestrators, as officers of the court who act under the order of the court, are entitled to immunity from suit. . .
Cited – Smith v Sydney 1871
A sequestration order, while in force, was a valid order providing legal protection to those who had obtained it and acted upon it. The court made a distinction between acts of the court and the acts of the parties. . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – Regina v Collins; Pathfinder Mental Health Services NHS Trust and St Georges Health Care NHS Trust ex parte M S CA 3-Jul-1997
The hospital authorities applied ex parte and were granted a declaration which dispensed with the applicant’s consent to medical treatment.
Held: Her appeal was allowed. A declaration (especially one affecting an individual’s personal . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Appeal from – Raja v Van Hoogstraten and others (No 9) ChD 26-Jul-2007
The court had set aside an sequestration order made following a finding of contempt when the contempt order was incorrectly made. The intervener which had been prejudiced by the sequestration order now sought to argue that the sequestration order . .

Cited by:

Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 21 July 2022; Ref: scu.278823

In Re Club Europe Trade Mark: ChD 2 Sep 1999

A court hearing an appeal under the Act, and deciding whether or not to admit new evidence, must now bear in mind the overriding objectives of litigation as defined, and also the need for proportionality. In this case, the pre-hearing procedures had failed to identify the real issues between the parties, and justice required that additional evidence be admitted rather than the case be remitted for hearing.

Citations:

Gazette 02-Sep-1999, Times 02-Aug-1999

Jurisdiction:

England and Wales

Intellectual Property, Civil Procedure Rules

Updated: 18 July 2022; Ref: scu.81809

Hardy and others v Pembrokeshire County Council and Another: CA 19 Jul 2006

The court considered the consequences of delay in applications for judicial review: ‘It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly.’ The court rejected a submission that the requirement in CPR 54.5(1) for an application for judicial review to be made ‘promptly’ offended against the principle of ‘legal certainty’ in European law.

Citations:

[2006] EWCA Civ 1008

Links:

Bailii

Statutes:

Civil Procedure Rules 54.591)

Jurisdiction:

England and Wales

Cited by:

Cited – Finn-Kelcey v Milton Keynes Council and MK Windfarm Ltd CA 10-Oct-2008
Judicial Review must be timely
The appellant challenged the grant of permission for a wind farm on neighbouring land. His application for judicial review had been rejected for delay and on the merits.
Held: The court repeated the requirement that an application must be both . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Judicial Review

Updated: 07 July 2022; Ref: scu.243364

Nduka, Regina (on the Application of) v Her Honour Judge Riddel: Admn 21 Oct 2005

Attempt to avoid normal civil appeal process by use of judicial review – whether abuse of process. The underlying claim had been struck out as having no reasonable prospect of success. Permission to appeal had been refused. Permission to bring judicial review of that decision had itself been refused on the basis that the CPR provided a comprehensive system of appeals, which could not be circumvented by judicial review. The claimant now appealed against that refusal.
Held: The County Court had been given extensive and draconian case management powers, and the decisions challenged fell welll within those case management powers. The appeal failed.

Judges:

Wilkie J

Citations:

[2005] EWHC 3115 (Admin)

Links:

Bailii

Statutes:

Civil Procedure Rules 54

Jurisdiction:

England and Wales

Litigation Practice, Judicial Review, Civil Procedure Rules

Updated: 04 July 2022; Ref: scu.238163

The Convergence Group Plc and Another v Chantrey Vellacott (a Firm): CA 16 Mar 2005

An accountant sought payment of his professional fees. The defendants had sought to re-amend their defence and counterclaim. Appeals had variously been allowed to go ahead or denied after the master had not been able to deal with all of them for lack of time.
Held: The several appeals raised common issues. Some were first appeals and some second. The applicable test for such appeals when heard together was that in CPR 52.3(6), treating them as first appeals. The new allegations arose out of the same or substantially the same facts as those already pleaded, so that permission to amend was granted.

Judges:

Clarke, Jonathan Parker LJJ

Citations:

Times 25-Apr-2005, [2005] EWCA Civ 290

Links:

Bailii

Statutes:

Civil Procedure Rules 52.13(2) 52.3(6)

Jurisdiction:

England and Wales

Citing:

Cited – Uphill v BRB (Residuary) Ltd CA 3-Feb-2005
The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an . .

Cited by:

Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Limitation

Updated: 29 June 2022; Ref: scu.223578

Regina on the Application of Teleos Plc and others v Commissioners of Customs and Excise: CA 2 Mar 2005

The taxpayer sought to challenge in Europe the ruling by the respondents that the mobile phones they supplied did not meet the criteria to be zero-rated for VAT. A decision would be unlikely before 2006. They sought judicial review now of the refusal of the commissioners to make an interim payment.
Held: There exists in rule 25.7 an ability in the courts to provide for an interim order of a nature not specifically provided for. Because a remedy existed, there was no infringement of the European rules. The rule set out the preconditions for such an order, and the applicant did not meet them.

Judges:

Lord Justice Ward Lord Justice Dyson Mr Justice Bennett

Citations:

[2005] EWCA Civ 200, Times 09-Mar-2005

Links:

Bailii

Statutes:

Civil Procedure Rules 25.7

Jurisdiction:

England and Wales

Citing:

Cited – Capital One Developments Ltd v Commissioners of Customs and Excise ChD 4-Feb-2002
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 . .
Cited – Garage Molenheide BVBA (C-286/94), Peter Schepens (C-340/95), Bureau Rik Decan-Business Research and Development NV (BRD) (C-401/95), Sanders BVBA (C-47/96) vBelgian State ECJ 18-Dec-1997
Sixth Directive (77/388/EEC) – Scope – Right to deduction of VAT – Retention of balance of VAT due – Principle of proportionality . .
Appeal from – Teleos Plc and Others, Regina (on the Application Of) v Customs and Excise Admn 6-May-2004
. .

Cited by:

Appealed to – Teleos Plc and Others, Regina (on the Application Of) v Customs and Excise Admn 6-May-2004
. .
Lists of cited by and citing cases may be incomplete.

VAT, Civil Procedure Rules

Updated: 29 June 2022; Ref: scu.223278

Shahar v Tsitsekkos and others: ChD 17 Nov 2004

The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in this way.
Held: The defendant should apply to the court for leave to add the party outside the jurisdiction, and the claim allowed would be treated as a counterclaim within Rule 20.

Judges:

Mann J

Citations:

[2004] EWHC 2659 (Ch), Times 30-Nov-2004

Links:

Bailii

Statutes:

Civil Procedure Rules 20

Jurisdiction:

England and Wales

Citing:

Cited – Gardner v Parker CA 25-Jun-2004
The court considered the extent to which a shareholder or creditor of a company who has suffered loss, as the result of a breach of duties owed both to him and the company by a defendant, is nonetheless debarred from recovering that loss, because . .
Cited – Giles v Rhind ChD 24-Jul-2001
The company had suffered losses after an alleged breach of confidence by a director. The applicant sought to recover his losses as a shareholder, after the company became unable or unwilling itself to pursue an action to recover the losses it had . .
Cited – Kleinwort Benson Limited v City of Glasgow District Council HL 19-Jun-1997
Restitution when Contract Void ab initio
A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is . .
Cited – Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .
Cited – Reunion Europeenne Sa and Others v Spliethoff’s Bevrachtingskantoor Bv and Another ECJ 27-Oct-1998
French consignees of a shipment of peaches sued in France the Australian issuers of the bill of laiding under which the goods were carried (a contract claim) and the Dutch carriers and master of the ship in which they were carried (tort claims).
Cited – In Re Banco Nacional De Cuba ChD 7-Jun-2001
Where it was alleged that shares in a UK company had been sold at an undervalue, so as to allow a challenge in insolvency proceedings, the leave of the court was still required if the pleadings were to be served abroad. When the court considered . .
Cited – Handelswerkerij GJ Bier BV v Mines de Potasse d’Alsace SA ECJ 1976
The Dutch plaintiff claimed that the water supply to its nursery had been polluted by the French defendant’s discharge of waste into the Rhine in France.
Held: The meaning of the expression: ‘Place where the harmful event occurred’ must be . .

Cited by:

Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules

Updated: 27 June 2022; Ref: scu.219548

Jackson v Marley Davenport Ltd: CA 9 Sep 2004

The claimant sought expert evidence to support her claim for personal injuries. A draft report was produced, followed by a final report which was disclosed. She appealed an order requiring disclosure of the draft report.
Held: The appeal succeeded. The rules required disclosure of a report. They could not be read to require disclosure of all reports. The report had litigation privilege at the time it was created, and retained that characteristic.

Judges:

Peter Gibson LJ, Tuckey LJ, Longmore LJ

Citations:

[2004] EWCA Civ 1225, Times 07-Oct-2004

Links:

Bailii

Statutes:

Civil Procedure Rules Part 35

Jurisdiction:

England and Wales

Civil Procedure Rules

Updated: 21 June 2022; Ref: scu.216351

International Finance Corporation v Utexafrica SPRL: ComC 9 May 2001

The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation and/or breach of contract, a defendant has to demonstrate a defence which is not ‘false, fanciful or imaginary’, and is better than merely arguable.

Judges:

Moore-Bick J

Citations:

[2001] EWHC 508 (Comm), [2001] CLC 1361, [2001] All ER (D) 101 (May)

Links:

Bailii

Statutes:

Civil Procedure Rules 13.3.(1)

Jurisdiction:

England and Wales

Cited by:

Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Contract

Updated: 13 June 2022; Ref: scu.201703

Bank of Credit and Commerce International Sa v Ali and others: CA 20 Sep 2001

Application to clarify terms of earlier order about status of findings by the Court of Appeal in representative applications.

Judges:

Chadwick LJ

Citations:

[2001] EWCA Civ 1438, [2002] CP Rep 11

Links:

Bailii

Statutes:

Civil Procedure Rules

Jurisdiction:

England and Wales

Civil Procedure Rules

Updated: 13 June 2022; Ref: scu.201338

Basil Shiblaq v Kahraman Sadikoglu (No 2): ComC 30 Jul 2004

The court considered whether there had been effective service of proceedings on defendants in Turkey. Evidence was given as to the effectiveness of such service in Turkish law.
Held: The defendant’s application to set aside the judgment in default succeeded. The claimant’s applications in respect of CPR 3.10 and CPR 6.9 were refused. The Civil Procedure Rules should not be used to attempt to subvert the Hague Convention: ‘Where it is sought to apply CPR6.9 retrospectively, if the effect of dispensing with service is to place the defendant in the same position as he would have been in if service had not been by an impermissible method but by a method provided for by such service convention, no order should be made.’

Judges:

Colman J

Citations:

[2004] EWHC 1890 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – The Goldean Mariner CA 1990
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 . .
Cited – Godwin v Swindon Borough Council CA 10-Oct-2001
The claimant appealed against an order striking out his claim for personal injuries. The claim had been issued in time, but not served. An extension of time was granted, and the notice sent by first class post the day before that period expired. The . .
Cited – Elmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
Cited – Knauf UK GmbH v British Gypsum Ltd and Another CA 24-Oct-2001
Permission was sought to use alternative service to serve proceedings on a company. There was no exceptional difficulty in ordinary service, but the claimant wanted to ensure that a claim was heard within the UK jurisdiction, and expected that he . .
Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited – 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
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .

Cited by:

Cited – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 11 June 2022; Ref: scu.199652

Texuna International Ltd v Cairn Energy Plc: ComC 17 May 2004

Where the court concludes that it may be effectively impossible to enforce an order for payment of costs, then this situation would provide ‘an objective justification for the court exercising its discretion to make an order for payment of the full amount of the costs likely to be ordered against a claimant if unsuccessful in the litigation’.

Judges:

Gross J

Citations:

[2004] EWHC 1102 (Comm)

Links:

Bailii

Statutes:

Civil Procedure Rules 25.13(1)(a) 25.13(2)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – Al-Koronky and Another v Time Life Entertainment Group Ltd and Another QBD 29-Jul-2005
The defendant to the defamation claim sought security for costs. There had been allegations of dishonesty on either side.
Held: The court should not, upon such an application, enter into the merits of the case in any detail, save in the . .
Cited – Prince Radu of Hohenzollern v Houston and Another QBD 7-Mar-2006
The claimant resided in Romania, and sought damages for libel. The magazine had obtained an order for security for costs. An offer had been made to cover the sum ordered, and no stifling could now happen.
Held: Any order for security costs in . .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 10 June 2022; Ref: scu.197077

Binks v Securicor Omega Express Ltd: CA 16 Jul 2003

The claimant sought damages for personal injury based upon one version of events. The defendant pleaded another, contrary, set of events and objected when the claimant sought to plead an alternative case to apply if the court found the defendants version of the facts.
Held: The alternative set of facts could be pleaded without the claimant swearing a statement of truth. The claim in the alternative was to be allowed.

Judges:

Mr Justice Maurice Kay Lord Justice Pill Lord Justice Carnwath

Citations:

[2003] EWCA Civ 993, Times 27-Aug-2003

Links:

Bailii

Statutes:

Civil Procedure Rules 22.1

Jurisdiction:

England and Wales

Citing:

Cited – Clarke (executor of the will of Francis Bacon, deceased) v Marlborough Fine Art (London) Ltd and Another ChD 20-Nov-2001
A party will not be allowed to file pleadings which required him to make contradictory statements of truth in a unified claim. The alternative may be for the proceedings to go ahead as separate, non-unified claims. When considering whether there was . .
Cited – Kelly v Chief Constable of South Yorkshire Police CA 2001
At the conclusion of the evidence, the claimant sought to amend her claim to include an alternative factual basis of liability based not on her own evidence but on that of one of the police officers with whom she had been struggling in a car.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 07 June 2022; Ref: scu.184889

Amalgamated Metal Trading Ltd v City of London Police Financial Investigation Unit and others: ComC 3 Apr 2003

The company provided trading services in financial futures. They became concerned as to the integrity of their client, and its relationship with shareholders and other companies where parties came to be arrested for fraud in the US. They sought a declaration that funds they had received were not the proceeds of criminal conduct.
Held: The new power to grant an interim declaration is unexplored, but commended in Bank of Scotland -v- A. Nevertheless the approach adopted by the claimant in this case was inappropriate. They should have waited until other proceedings commenced, and then contested them. It was not appropriate to seek to require from police justification for not consenting to dealing with funds.

Citations:

[2003] EWHC 703 (Comm), [2003] 1 WLR 2711

Links:

Bailii

Statutes:

Proceeds of Crime Act 1995 903A, Civil Procedure Rules 25.2(1)(b

Jurisdiction:

England and Wales

Citing:

Cited – Riverside Mental Health NHS Trust v Fox CA 28-Oct-1993
An interim declaratory order is unknown to English Law and and ‘consequently the court has no jurisdiction to grant an interim declaratory order’. . .
Cited – Bank of Scotland v A Ltd and Others (Serious Fraud Office, Interested Party) CA 6-Feb-2001
A bank, having been informed that the activities of a customer involved money laundering, found itself in a position where, if it paid out the funds, it would face conviction, but if it failed to do so, it be found to be involved in tipping off the . .

Cited by:

Cited – K Ltd v National Westminster Bank Plc and others CA 19-Jul-2006
The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Financial Services, Civil Procedure Rules

Updated: 07 June 2022; Ref: scu.181955

Staines v Walsh, Howard: ChD 14 Mar 2003

The claimant sought an account from the defendant share broker for the proceeds of share transactions. The defendant said the matter should be tried in Hong Kong.
Held: The claimant must show a good arguable case. Here there was evidence to support the claimant’s assertion of the use of an address in England, and a case was therefore shown. There were clear English connections, and the contract was asserted to have been made in England. England was the forum conveniens.

Judges:

The Hon Mr Justice Goldring

Citations:

[2003] EWHC 458 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 6.20, Contracts (Applicable Law) Act 1990, Rome Convention 3

Jurisdiction:

England and Wales

Citing:

Cited – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules, Contract

Updated: 07 June 2022; Ref: scu.179918

Independiente Ltd and others v Music Trading On-Line (HK) Ltd and others: ChD 13 Mar 2003

The claimants claimed damages for the sale by the defendants in the UK of CD’s manufactured for sale only in the far East. The defendants challenged the right of a claimant phonographic society to have the right to sue on behalf of its members.
Held: The right to issue representative actions varies with the nature of the claim. Did members of the society have a common interest in preventing parallel imports as opposed to preventing copyright piracy? Yes. The claims were all of the same nature and it was to be expected that the members would have a complaint. It was not necessary to require the claimants to circularise their members to obtain specific authority under CPR 19.6(2).

Judges:

The Vice-Chancellor

Citations:

[2003] EWHC 470 (Ch)

Links:

Bailii

Statutes:

Copyright, Designs and Patents Act 1988 18 22 33, Civil Procedure Rules 19.6(2)

Jurisdiction:

England and Wales

Citing:

Cited – Bellefield Computer Services and others v E Turner and Sons Limited and others CA 18-Dec-2002
The defendants had carried out works of construction on the premises. They subcontracted the design, but not the supervision, of the works to architects. Years later there was a fire, which spread rapidly because of negligence in the design of a . .
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .
Cited – EMI Records v Riley ChD 1981
The defendant to an action for an injunction by the plaintiff on behalf of the British Phonographic Industry Copyright Society, said that the company did not properly represent the members of the Society.
Held: It could be inferred that all . .
Cited – Columbia Pictures Industries Inc v Robinson ChD 1986
The plaintiff had obtained an Anton Piller order against a defendant whose business consisted almost entirely in the manufacture and sale of pirated videos.
Held: The injunction had been obtained for an improper purpose and without full . .
Cited – Haarhaus v Law Debenture Trust Corporation ChD 1988
The plaintiffs brought an action on behalf of themselves and all other holders of promissory notes issued by a Nigerian Bank to restrain the trustee of the noteholders’ trust deed, from publishing details as to the votes cast at a meeting of . .
Cited – Russell-Cooke Trust Co v Elliott ChD 26-Mar-2001
The case concerned the administration of investment schemes set up by a solicitor into whose practice the Law Society had intervened.
Held: It was directed that a circular be sent to all investors to determine their views. . .

Cited by:

Cited – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Civil Procedure Rules

Updated: 07 June 2022; Ref: scu.179742

Kirin Amgen Inc and Others v Transkaryotic Therapies Inc and Others: ChD 1 Jun 2001

The court has power to review its judgment at any point before the order has been drawn up, and this remained the case despite other changes in the rules. Here an authority inconsistent with the judgment had been brought to the attention of the judge. The judge wished to review his judgment. The ability to do so was not dependent upon the former absence of a right of appeal, and was not therefore lost under new rules intended to provide greater flexibility. Even so, and after review, he was not inclined to alter his decision.

Citations:

Times 01-Jun-2001, Gazette 14-Jun-2001

Jurisdiction:

England and Wales

Litigation Practice, Civil Procedure Rules

Updated: 04 June 2022; Ref: scu.82804

Maltez v Lewis: ChD 27 Apr 1999

The right of a litigant, to choose his solicitor and counsel, is a fundamental one not to be set aside by mere rules of court. In particular the new rules should not be interpreted so as to achieve this. This is part of the principle of equality of arms.

Judges:

Neuberger J

Citations:

Times 04-May-1999, Gazette 26-May-1999

Statutes:

Civil Procedure Rules Rule 1.1(2) ( c)

Jurisdiction:

England and Wales

Cited by:

Cited – Paddick v Associated Newspapers Ltd QBD 10-Dec-2003
The defendant sought disclosure of full statements used by the claimant . Extracts only had been supplied, and he said they contained private and confidential material.
Held: The application failed. The claimant had stated that the balance of . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 04 June 2022; Ref: scu.83356

Rhiannon Anderton v Clwyd County Council (2): QBD 25 Jul 2001

The claim form had been issued only just before the limitation period expired. Under the rules it would have been deemed to have been served on a Sunday, the day before the expiry of the period, but evidence suggested it was not received until after the expiration of the period. The defendant argued there was insufficient evidence of the date of posting to bring into effect the deeming provisions as to the date of service. No certificate had been supplied under 6.14.
Held: There was no evidence as to the class of postage used, and no inference could be drawn that first class post had been used. The rules therefore deemed service out of time, as in fact had occurred. Nor would alternate service be ordered. This was a discretionary remedy, and the circumstances of this case did not justify it.

Judges:

The Honourable Mr Justice McCombe

Citations:

[2001] EWHC QB 161

Links:

Bailii

Statutes:

Civil Procedure Rules 6.7 6.14

Jurisdiction:

England and Wales

Citing:

See Also – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.

Cited by:

Cited – Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Appeal from – 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
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation, Civil Procedure Rules

Updated: 30 May 2022; Ref: scu.159917

Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald: CA 12 May 2000

The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court of Appeal. Appeals will generally be subject to leave being obtained. An appeal should only be allowed where the decision of the lower court was ‘wrong’ or where it was unjust because of a serious procedural or other irregularity in the proceedings. It is only in an ‘exceptional’ case that a second appeal may be sanctioned. The general rule is that the decision of the appeal court on the first appeal will be the final decision. It is no longer possible to pursue a second appeal merely because the appeal is properly arguable or has a real prospect of success.
‘A final decision includes the assessment of damages or any other final decision where it is ‘made at the conclusion of part of a hearing or trial which has been split up into parts and would, if made at the conclusion of that hearing or trial, be a final decision:’ article 1(3) of the Order of 2000; it does not include a decision only on costs. This means that if a judge makes a final decision on any aspect of a claim, such as limitation, or on part of a claim which has been directed to be heard separately, this is a final decision within the meaning of this provision.’

Judges:

Brooke LJ

Citations:

Times 17-May-2000, Gazette 15-Jun-2000, [2000] 1 WLR 1311, [2000] EWCA Civ 152, [2000] 2 All ER 801, [2000] EWCA Civ 3023

Links:

Bailii, Bailii

Statutes:

Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, Civil Procedure Rules

Jurisdiction:

England and Wales

Citing:

Approved – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .

Cited by:

Applied – Slot and Slot v Isaac CA 12-Apr-2002
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 . .
Explained – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Price v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
Cited – Sarah Lloyd Jones and others v T Mobile (Uk) Ltd CA 31-Jul-2003
The claimant challenged a stautory notice. The Act required the notice to be fixed to the structure in question, but because of its location, the notice was not legible without going on to private land.
Held: Appeal lay here from the County . .
Cited – Totalise Plc v The Motley Fool Limited and Interative Investor Limited (2) CA 19-Dec-2001
The respondent operated a web site which contained a chat room. Defamatory remarks were made by a third party through the chat room, and the claimant sought details of the identity of the poster. The respondent refused to do so without a court . .
Cited – Ross v Stonewood Securities Ltd ChD 7-Oct-2004
The claimant appealed an order reducing his award of costs. . .
Cited – Uphill v BRB (Residuary) Ltd CA 3-Feb-2005
The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an . .
Cited – Law v Margarets Insurances Limited CA 27-Feb-2001
The defendant sought to set aside a judgment entered against it for the cost of repairs to the claimant’s boat engine, saying that they were not the insurers but merely the insurance brokers. Their appeal had been incorrectly prepared and had been . .
Cited – Haw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
Cited – Ridsdill and others v Smith and Nephew Medical, Duffy, Whittleton EAT 22-Jun-2006
EAT Practice and Procedure – Striking-out/dismissal.
Chairman’s decision to strike out claims which had not been actively pursued and when there had been failure to comply with Tribunal orders. The appeal . .
Cited – Somerfield Stores Ltd v Spring (Sutton Coldfield) Ltd ChD 4-Aug-2010
The landlord had opposed the renewal of the claimant’s business tenancies saying that it wished to redevelop the sites. Before the matter came to trial, the landlord went into administration, and the tenant sought summary judgment. It now appealed . .
Cited – White v Southampton University Hospitals NHS Trust and Another QBD 1-Apr-2011
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . .
Cited – C v V CoP 25-Nov-2008
The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 23 May 2022; Ref: scu.135758

Tennero Ltd v Arnold: QBD 6 Jul 2006

The court considered an application for permission to appeal. The Defendant had not attended the trial, but had applied by letter for an adjournment, which was refused. The trial proceeded and resulted in an order against the Defendant. He applied unsuccessfully under rule 39.3(3) to set the judgment aside, and he also appealed in effect against the refusal to adjourn.
Held: It was an abuse of the process of the court to appeal, because the remedy under rule 39.3 had been used, though to no avail. There was no prospect of success on an appeal against the substantive judgment itself.

Judges:

Jack J

Citations:

[2006] EWHC 1530 (QB), [2007] 1 WLR 1025

Links:

Bailii

Statutes:

Civil Procedure Rules 39.3(1)

Jurisdiction:

England and Wales

Cited by:

Cited – A v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
Cited – Zambia v Meer Care and Desai (A Firm) and others CA 9-Jul-2008
The claimant sought to allege fraud by its former president, and began proceedings to recover payments it said were fraudulent, including against a defendant Taylor in Switzerland, who now said that no letter before action or other explanation . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 21 May 2022; Ref: scu.243167

Ford v GKR Construction and Others: CA 22 Oct 1999

Where a party wished to put the other at risk of payment of costs by the making of an offer, it was vital that the other party should be made properly aware of any information available to decide on the offer. Under the new regime, it was not appropriate to hold back such information, and a party who did so risked losing his costs even if the payment in would otherwise meet the criteria. The Claimant recovered less damages than the amount of the payment into Court, but the Defendants were ordered to pay the whole of the Claimant’s costs, including those incurred after the date of the payment in.
Held: ‘the judge reaching his decision about costs is required to take into account all relevant aspects of the litigation.’ The order was justified in the circumstances of that case, in particular because of the late introduction of evidence by the Defendants which had the effect of reducing the amount of the judgment below that of the payment in. ‘Indeed, [the judge’s] judgment has served to underline [not ‘undermine’] the importance, rightly and increasingly, to be attached to civil litigation being conducted openly between the parties with the real issues between them efficiently and quickly identified and investigated without, as it now seems to me, any unfairness to these defendants in this case.’ (Woolf MR) ‘I also draw attention to the fact that the rules refer to the power of the court to make other orders and make it clear that the normal cost consequences of failing to beat the sum paid in does not apply when it is unjust that it should do so. If a party has not enabled another party to properly assess whether or not to make an offer, or whether or not to accept an offer which is made, because of non-disclosure to the other party of material matters, or if a party comes to a decision which is different from that which would have been reached if there had been proper disclosure, that is a material matter for the court to take into account in considering what orders it should make.’ Judge LJ: ‘Civil litigation is now developing into a system designed to enable the parties involved to know where they stand in reality at the earliest possible stage, and at the lowest practicable cost, so that they …. may make informed decisions about their prospects and the sensible conduct of their cases. Among other factors the judge exercising his discretion about costs should consider is whether one side or the other has, or has not, conducted litigation with those principles in mind.’

Judges:

Judge LJ, Woolf MR

Citations:

Times 05-Nov-1999, [2000] 1 All ER 802, [1999] EWCA Civ 3030

Links:

Bailii

Statutes:

Civil Procedure Rules 36

Jurisdiction:

England and Wales

Cited by:

Cited – Amber v Stacey CA 15-Nov-2000
The defendant challenged an order that he should pay the plaintiff’s costs, having made an offer in correspondence which was not accepted.
Held: The claimant had exaggerated his claim, but the defendant’s offer had been inadequate. The judge’s . .
Cited – Douglas and others v Hello! Ltd and others ChD 23-Jan-2004
. .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 19 May 2022; Ref: scu.80630

Bristol-Myers Squibb Company v Baker Norton Pharmaceuticals Inc and Another: CA 26 Apr 2001

The slip rule could not be used by the court to add second thoughts to a judgment, but could be used by the court to amend the judgment to give effect to the court’s original intention. In this case the effect of an appeal was to restart the running of interest from the date of the appeal judgment even though this had not been an issue, nor had it been intended, and the judgment could be amended to allow the courts intention to have effect. Whilst the authorities ‘establish that the slip rule cannot enable a court to have second or additional thoughts. Once the order is drawn up any mistakes must be corrected by an appellate court. However it is possible under the slip rule to amend an order to give effect to the intention of the court.’

Judges:

Aldous LJ

Citations:

Times 26-Apr-2001, [2001] EWCA Civ 414

Links:

Bailii

Statutes:

Civil Procedure Rules Part 40.12 (1)

Jurisdiction:

England and Wales

Cited by:

See also – Bristol-Myers Squibb Company v Baker Norton Pharmaceuticals Inc, Napro Biotherapeutics Inc CA 23-May-2000
. .
Cited – Herbert George Snell and others v Robert Young and Co Limited and others CA 21-Nov-2002
The claimants had sought damages for poisoning from organophosphates used in sheep dipping. Evidence linking the injuries to the use of the chemicals had not been found, and the actions struck out as an abuse of process. The group litigation had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 18 May 2022; Ref: scu.78601

Omega Engineering Inc v Omega SA: ChD 20 May 2003

An ‘unless’ order had been agreed between the parties, but the order had not allowed for what would happen if either party sought permission to appeal. The respondent argued that the claimant could not have an extension of time pending the outcome of his application for permission, saying that the court was now functus officio.
Held: It is not normally permissible to look back on the old Rules of the Supreme Court when interpreting the new CPR. A stay could be allowed in this case. First, given the overriding objective, it was felt unlikely that the new rule was intended to be more strict than under the former rule, which would allow a stay. The power to extend time did not come to an end wit hth edrawing and entry of the order.

Judges:

Pumfrey J

Citations:

Times 29-Sep-2003

Statutes:

Civil Procedure Rules 3.12(a)

Jurisdiction:

England and Wales

Civil Procedure Rules

Updated: 16 May 2022; Ref: scu.186461

Aoot Kalmneft v Glencore International AG and Another: QBD 27 Jul 2001

When asking whether the time for appeal against an arbitrator’s award should be extended, the court should look at several circumstances, including the length of the delay; whether the party was acting reasonably in all the circumstances in delaying; whether the other party had contributed to the delay; whether other party would suffer irremediable prejudice from the delay over and above mere loss of time if the application proceeded; whether the arbitration had continued during the period of delay what impact on progress or costs might arise from the extension; the strength of the application; and whether it would be unfair to deny the applicant opportunity to have the application determined.

Judges:

Colman J

Citations:

Times 20-Nov-2001

Statutes:

Arbitration Act 1996 67 68 69, Civil Procedure Rules 3.1(2)

Arbitration, Civil Procedure Rules

Updated: 16 May 2022; Ref: scu.166832

Banks and Another v Cox and Another: CA 17 Jul 2000

The court considered the principles of admitting new evidence on appeal after the introduction of the new rules. Moritt LJ: ‘In my view the principles reflecting in the rules in Ladd v Marshall [1954] 1 WLR 1489 remain relevant to any application for permission to rely on further evidence, not as rules, but as matters which must necessarily be considered in an exercise of the discretion whether or not to permit an appellant to rely on evidence not before the court below.’

Judges:

Morritt LJ

Citations:

Transcript No. 1476 of 2000

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

See Also – Banks and Another v Cox and Another CA 3-Apr-2001
. .
See Also – Banks and Another v Cox and Another CA 20-Apr-2001
. .
See Also – Banks and Another v Cox and Another CA 17-May-2001
. .
Cited – Capital Bank Plc v Mcdiarmid CA 7-Feb-2006
The defendant was said to have guaranteed a hire purchase agreement. The principle, a company, had become insolvent. He denied having signed the document.
Held: Leave to appeal should not be granted. The court considered further evidence. That . .
Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 10 May 2022; Ref: scu.241280

Moscow City Council v Bankers Trust Company and Another: QBD 5 Jun 2003

Proceedings before an arbitrator were governed by rule 62.10, which provided its own entire code, and imposed a presumption in favour of privacy. The principles of Scott v Scott need not apply. Scott would now be decided under analogous reasonings under the Human Rights Act.

Judges:

Cooke J

Citations:

Times 01-Sep-2003

Statutes:

Civil Procedure Rules 62.10, Arbitration Act 1996 68, European Convention on Human Rights A-6

Jurisdiction:

England and Wales

Citing:

Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Civil Procedure Rules

Updated: 06 May 2022; Ref: scu.185986

Dyson Appliances Limited v Hoover Limited (No 4): PatC 18 Feb 2003

The court refused to make an order for a payment of interim costs when the substantive claim for costs remained to be heard. The claimant had accepted a payment in entitling it to its costs, but now sought an interim award before the full costs could be assessed.
Any rule allowing a judge to make such an assessment could not apply where the judge had not heard the substantive claim. In this case the costs judge would be blind to the underlying issues. Application refused.

Judges:

Laddie J

Citations:

Times 18-Mar-2003, Gazette 17-Apr-2003, [2003] EWHC 624 (Pat), [2004] 1 WLR 1264

Links:

Bailii

Statutes:

Civil Procedure Rules 14

Jurisdiction:

England and Wales

Citing:

See Also – Dyson Appliances Ltd v Hoover Ltd PatC 3-Oct-2000
The plaintiff alleged infringement of its European Patent in a vacuum cleaning appliance. The defendants sought its revocation on the statutory grounds of lack of novelty, obviousness and insufficiency, and for threats. . .
See Also – Dyson Appliances Ltd v Hoover Ltd PatC 5-Apr-2001
The claimant had obtained injunctive relief against the defendant for patent infringement. Only twelve months of the patent remained, and the claimants applied for an extension of the injunction twelve months beyond the patent expiry, and for other . .
See Also – Dyson Appliances Limited v Hoover Limited CA 4-Oct-2001
Hoover appealed a finding that Dyson’s patent was valid and infringed. They asserted the patent was not novel in the light of a US patent, and even so was obvious. One test was whether an application of the claimed patent would inevitably infringe . .
See Also – Dyson Appliances Limited v Hoover Limited (No 3) ChD 21-Oct-2002
The plaintiff had accepted a payment in which was more advantageous than its own offer of settlement. It now sought costs on an indemnity rather than a standard basis. They argued that under the rule they were entitled to costs on an indemnity basis . .

Cited by:

Cited – Simms and others v The Law Society CA 12-Jul-2005
The appellant challenged intervention proceedings brought against his solicitors practice by the respondent. Following disciplinary proceedings, the Society had obtained summary judgment rejecting the application, and awarding costs. The solicitor . .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules, Intellectual Property

Updated: 04 May 2022; Ref: scu.180956

Deutsche Bank AG v Sebastian Holdings Inc and Another: CA 21 Jan 2016

Appeal from Order joining party for purposes of third party costs order.

Judges:

Moore-Bick VP, Lewison, Simon LJJ

Citations:

[2016] EWCA Civ 23, [2016] CP Rep 17, [2016] 4 WLR 17, [2016] WLR(D) 25

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Approved – Dymocks Franchise Systems (NSW) Pty Limited v Todd and Todd, Bilgola Enterprises Ltd and Lambton Quay Books Ltd PC 7-Oct-2002
PC (New Zealand) The claimants asserted that the respondents had wrongly terminated their franchise licence. The agreement was subject to the New South Wales law requiring good faith, but the court had not had . .
Appeal from – Deutsche Bank Ag v Sebastian Holdings Inc and Another ComC 30-Jan-2014
. .

Cited by:

Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 04 May 2022; Ref: scu.559155

Bates v Microstar Ltd and Another: ChD 28 Mar 2003

The applicant sought leave to commence proceedings in another jurisdiction. It had earlier obtained a freezing order against the defendant’s assets by giving an undertaking not to issue proceedings without leave.
Held: Permission should be given. The purpose of the exceptional procedure of making a freezing order at the same time was to ensure that the success of an action was not defeated by assets being hidden. When looking to a request to be released from such an undertaking the court should look to CPR 11.1(2) to see what elements had to be queried as to the fairness or justice of such a release. Here, the claimant would not obtain any benefit from his action in England without the foreign proceedings, the defendants abroad were the directors of the company here, and without the freezing order no complaint could have been made about the new action. In these circumstances, the applicant was to be released from his undertaking.

Citations:

Times 15-Apr-2003, Gazette 05-Jun-2003

Statutes:

Civil Procedure Rules 1.1(2)

Jurisdiction:

England and Wales

Civil Procedure Rules

Updated: 28 April 2022; Ref: scu.180990

Dollfus Mieg et Cie v CWD International Ltd; LBJ Regents Ltd and another v Dolifus Mieg et Cie: QBD 17 Mar 2003

The applicant was a Part 20 defendant in a cross action brought between two other parties. It sought to have its own claim against the original claimant heard as a counterclaim.
Held: Article 6 should not be construed so widely as to allow a cross claim by someone other than the original defendant to the counterclaim. The normal domicile rule could not support such a derogation.

Judges:

Havelock-Allan J

Citations:

Times 19-Apr-2003

Statutes:

Civil Procedure Rules 20, Council Regulation (EC) 44/2001 6(3)

Jurisdiction:

England and Wales

Citing:

Cited – Baltic Insurance Group v Jordan Grand Prix Limited and Others and Quay Financial Software Limited and Others (By Counter Claim and One Other Action) HL 20-May-1998
The Brussels Convention requires an insurance company to commence a claim against an insured in the country in which it operates. This applies also to non-convention countries, and a counterclaim may not add a new party from another jurisdiction. . .
Cited – Dollfus Mieg et Cie v CWD International Ltd; LBJ Regents Ltd and another v Dolifus Mieg et Cie QBD 17-Mar-2003
The applicant was a Part 20 defendant in a cross action brought between two other parties. It sought to have its own claim against the original claimant heard as a counterclaim.
Held: Article 6 should not be construed so widely as to allow a . .

Cited by:

Cited – Dollfus Mieg et Cie v CWD International Ltd; LBJ Regents Ltd and another v Dolifus Mieg et Cie QBD 17-Mar-2003
The applicant was a Part 20 defendant in a cross action brought between two other parties. It sought to have its own claim against the original claimant heard as a counterclaim.
Held: Article 6 should not be construed so widely as to allow a . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules, European

Updated: 27 April 2022; Ref: scu.180875

Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group): CA 31 Jul 2018

The court was asked important questions about (i) the powers of the court under the CPR and its inherent jurisdiction to permit access to documents by non-parties; (ii) the way in which the court’s discretion should be exercised where an application is within its powers; and (iii) the proper balance to be struck between the application of the principle of open justice and policy considerations concerning the proper and efficient administration of justice.
Documents had been filed in a product liability claim against a manufacturer of asbestos which settled after trial, but before judgment was given. An asbestos victims’ support group applied for access to the documents with a view to using them to promote academic consideration of the history of asbestos safety, regulation and knowledge. At first instance the court had granted the order requested.
Held: Although the interest of the claimant was proper, the order granted had been too wide. The court set out the documents to which a third party might properly be granted.

Judges:

Sir Brian Leveson P

Citations:

[2018] EWCA Civ 1795

Links:

Bailii

Statutes:

Civil Procedure Rules 5.4C

Jurisdiction:

England and Wales

Civil Procedure Rules

Updated: 25 April 2022; Ref: scu.620456

Bass v Ministry of Defence: QBD 5 Jun 2018

Applications brought by the claimants under section 41 of the County Courts Act 1984 for orders transferring their claims from the Central London County Court to the High Court. Such applications are usually straightforward; indeed, they are usually dealt with by consent. But these raise issues concerning the interplay of sections 41 and 42 of the CCA 1984 and the correct interpretation of CPR r 30.3(3). They also touch more generally on the relationship between judges of the High Court and the County Court.

Judges:

Davison M

Citations:

[2018] EWHC 1297 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Civil Procedure Rules, Litigation Practice

Updated: 22 April 2022; Ref: scu.617222

Vinos v Marks and Spencer plc: CA 2001

The appellant claimed personal injuries. His solicitors issued a claim form within the limitation period, but only served it after the expiry of the four month period after the date of issue within which CPR 7.5 stipulated that the claim had to be served. CPR 7.6 provided that a claimant could apply for an order extending the period within which the claim form had to be served.
Held: The special rule applied where an application was made after the time for service had run out, allowing the court to extend time only if certain conditions were fulfilled which were not fulfilled in that case. The more general words of CPR 3.10 could not be extended to enable a court to do what another rule expressly forbade. Rule 3.10 provides that, where there has been an error of procedure such as a failure to comply with a rule or practice direction, the error does not invalidate any step taken in the proceedings unless the court so orders and the court may make an order to remedy the error. The court could not extend time for service under rule 3.10 in circumstances where the power of the court to extend time was limited by the express provisions of rule 7.6(3), which provided that the court could make such an order ‘only if’ certain criteria were satisfied. The overriding objective is that civil litigation should be pursued with expedition. Criticism of solicitors may be muted but there are statutory limitation periods. It is unsatisfactory to allow almost three years to elapse and to start proceedings at the last moment. It is in accordance with the overriding objective that parties should make speedy progress and within time limits. Four months is more than adequate for serving a claim form. It is not unjust that, if you leave issuing proceedings to the last moment and do not comply with this requirement and do not satisfy the conditions in r 7.6(3), your claim is lost and a new claim will be statute-barred.

Judges:

May LJ

Citations:

[2001] 3 All ER 784

Statutes:

Civil Procedure Rules 7.6(3) 3.10

Jurisdiction:

England and Wales

Cited by:

Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Applied – Steele v Mooney and others CA 8-Feb-2005
The claimant had sought an extension of time for service of her claim form in her action for personal injury. The solicitors in error did not include the words ‘claim form’ in their request. The judge had initially held the error was one of drafting . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Cited – Aktas v Adepta CA 22-Oct-2010
The court was asked whether, when a claim was issued towards the very end of a limitation period, but was then not served, and the claim was struck out, CPR Part 7.5(1) gave a further four months in which it could be resurrected at the discretion of . .
Cited – Cardiff County Council v Lee (Flowers) CA 19-Oct-2016
The court was asked: ‘can the court proceed to validate a warrant of possession where a landlord who seeks to enforce his right to possession because of an alleged breach of the terms of a suspended possession order has not complied with CPR 83.2? ‘ . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 12 April 2022; Ref: scu.182213

Izzo v Philip Ross and Co (a Firm): ChD 31 Jul 2001

Whilst litigants in person should be allowed the assistance of a McKenzie friend, the duties of the friend should not normally include representation and advocacy. Nevertheless, each case should be viewed separately, and applications for permission should be attended to, even if only granted in exceptional circumstances. The litigant should understand that this is an indulgence by the court.

Judges:

Neuberger J

Citations:

Times 13-Aug-2001, Gazette 13-Sep-2001

Jurisdiction:

England and Wales

Citing:

Cited – McKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .

Cited by:

Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Litigation Practice

Updated: 12 April 2022; Ref: scu.136176

Howlett v Howlett and Another: CA 30 Oct 2017

This appeal concerns CPR 44.16, which deals (as its heading indicates) with ‘Exceptions to one-way costs shifting where permission required’

Judges:

Lewison, Beatson, Newey LJJ

Citations:

[2017] EWCA Civ 1696

Links:

Bailii

Statutes:

Civil Procedure Rules 44.16(1)

Jurisdiction:

England and Wales

Costs, Civil Procedure Rules

Updated: 01 April 2022; Ref: scu.598464

Emojevbe v Secretary of State for Transport: CA 7 Jul 2017

The claimant appealed against the refusal of adjournment of the trial of his action on the basis of his medical ability to attend.

Judges:

Lloyd Jones, King, LJJ

Citations:

[2017] EWCA Civ 934

Links:

Bailii

Statutes:

Civil Procedure Rules 39.3(3)

Jurisdiction:

England and Wales

Litigation Practice, Civil Procedure Rules

Updated: 27 March 2022; Ref: scu.588990

Godfrey Morgan Solicitors (A Firm) v Armes: CA 2 May 2017

‘The issue in this appeal is whether a defendant joined to proceedings by way of amendment outside the limitation period, and sued in the alternative to the existing defendant, has been added to the claim as a new party or has been substituted for the existing defendant, for the purposes of the Civil Procedure Rules (‘CPR’). Substitution is permitted, but simple addition is not.’

Citations:

[2017] EWCA Civ 323

Links:

Bailii

Jurisdiction:

England and Wales

Civil Procedure Rules, Limitation

Updated: 24 March 2022; Ref: scu.582106

Oak Cash and Carry Ltd v British Gas Trading Ltd: CA 15 Mar 2016

Appeal by a defendant, whose defence had been struck out for non-compliance with court orders, against the refusal of relief from that sanction pursuant to Civil Procedure Rule 3.9. The principal issues in this appeal were:
i) whether, in assessing the seriousness of non-compliance with an ‘unless’ order, the court should have regard to the original breach which gave rise to the ‘unless’ order;
ii) the effect of delay in applying for relief.

Jackson, King, Lindblom LJJ
[2016] EWCA Civ 153
Bailii
Civil Procedure Rules 1998 3.9
England and Wales

Litigation Practice, Civil Procedure Rules

Updated: 12 January 2022; Ref: scu.561126

Gentry v Miller and Another: CA 9 Mar 2016

This appeal raises the question of how the court should approach the grant of relief from sanctions in a case where the defaulting party has delayed in applying for relief but is able to point to evidence that enables it to allege that the claim is a fraudulent one.

Lewison, Beatson, Vos LJJ
[2016] EWCA Civ 141, [2016] WLR(D) 136
Bailii, WLRD
Civil Procedure Rules
England and Wales

Civil Procedure Rules, Litigation Practice

Updated: 12 January 2022; Ref: scu.561123

Michael Wilson and Partners Ltd v Sinclair and Others: CA 23 Jul 2015

Richards, Christopher Clarke LJJ
[2015] EWCA Civ 774, [2015] 4 Costs LR 707, [2015] CP Rep 45
Bailii
England and Wales
Citing:
See Also – Emmott v Michael Wilson and Partners Ltd CA 12-Mar-2008
The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’. . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 6-Nov-2008
Challenge to jurisdiction of arbitration proceedings. . .
See Also – Emmott v Michael Wilson and Partners Ltd ComC 12-Jan-2009
The claimant, a party to an arbitration, sought first an order requiring the defendant to comply with an order made by the arbitrator for the transfer of certain shares, and second an asset freezing order.
Held: The conditions for a peremptory . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 16-Jan-2013
Application to stay order for costs. . .

Cited by:
See Also – Michael Wilson and Partners Ltd v Emmott CA 14-Oct-2015
Appeal against a finding that payments made by the appellant were made in the ordinary course of business and not in breach of a freezing injunction. . .
See Also – Michael Wilson and Partners Ltd v Emmott CA 11-Dec-2015
The court considered a residual jurisdiction to set aside an arbitrator’s award after a first appeal. . .
See Also – Emmott v Michael Wilson and Partners ComC 24-Nov-2016
Application for an anti-suit injunction against the defendant to restrain it from taking any further steps in ongoing proceedings in New South Wales and from commencing or pursuing any other substantive claims against the claimant on the ground that . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Costs

Updated: 02 January 2022; Ref: scu.550494

Australia and New Zealand Banking Group Ltd v National Westminster Bank plc and Others: ChD 6 Feb 2002

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.

Mr John Jarvis, QC
Times 14-Feb-2002, Gazette 21-Mar-2002
Civil Procedure Rules 19.2
England and Wales
Citing:
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 23 December 2021; Ref: scu.167607

GSM Export (UK) Ltd and Another v Revenue and Customs: UTTC 14 Oct 2014

PROCEDURE – application for an order for security for costs – CPR, rule 25 – whether reason to believe appellants will be unable to pay respondents’ costs if ordered to do so – significance of ATE insurance – whether just to make an order in all the circumstances of the case – weight to be attached to lateness of application

[2014] UKUT 457 (TCC), [2015] BPIR 47, [2015] STC 504
Bailii
Civil Procedure Rules 25
England and Wales

Costs, Civil Procedure Rules

Updated: 22 December 2021; Ref: scu.538013

Malgar Ltd v R E Leach Engineering Ltd: ChD 1 Nov 1999

The Civil Procedure Rules could not change the substantive law. It therefore remained necessary for it to be shown that in addition to knowing that what was said was false, the party had to have known that what was being said was likely to interfere with the course of justice. No new category of contempt could be introduced with respect to statements of truth made without being verified.
The policing of statements of truth had to be subject to the same over-riding objectives as applied to other part of the litigation process, and proceedings for contempt should only be brought with the permission of the court or the Attorney-General. Proceedings for contempt of court are public law proceedings and therefore when considering whether to give permission for proceedings to be taken in any particular case the court must have regard to the public interest alone. Though private interests may be affected, because the proceedings are of a public nature ‘[t]he court from which permission is sought will be concerned to see that the case is one in which the public interest requires the committal proceedings to be brought.’
The Vice-Chancellor said: ‘Proceedings for contempt are not private law proceedings. They are public law proceedings. They may in appropriate circumstances be brought by private individuals. They can always be brought by the Attorney General, but private individuals may be able to bring them. An injunction granted in an action between two private individuals restraining one from doing some act which is to the prejudice of the interests of the other can be enforced by committal proceedings brought by the party for whose benefit the injunction was granted. Committal proceedings of that character can be brought without permission. But under CPR 32.14 a private individual can only bring committal proceedings with the permission of the court. The reason for that is the nature of the proceedings. These are not proceedings where the alleged contempt consists of the breach of an order obtained by an individual in protection or furtherance of his own private rights. It is a case of an allegation of public wrong, not private wrong. Interference with the course of justice is plainly a public wrong and it is right therefore that there should be a public control over the launching of proceedings for this species of contempt. The Attorney General has a public function which needs no further explanation. The court from which permission is sought will be concerned to see that the case is one in which the public interest requires the committal proceedings to be brought. I repeat that these are not proceedings brought for the furtherance of private interests. They are brought in the public interest and are in some respects like criminal proceedings. Nonetheless they are civil proceedings and they are civil proceedings to which the overriding objective set out in CPR 1 is therefore applicable. The overriding objective enjoins the court to deal with cases justly, ensuring so far as practicable that the parties are on an equal footing, that expense is saved and that the case is dealt with in ways which are proportionate to the money involved, to the importance of the case, the complexity of the issues and the financial position of each party. These are general imperatives which are as relevant, in my opinion, to an application for permission under CPR 32.14 as to any other form of civil proceedings.’

Sir Richard Scott VC
Times 17-Feb-2000, 1999 WL 1048312, [2000] FSR 393, [1999] EWHC 843 (Ch), [2000] CP Rep 39
Bailii
England and Wales
Cited by:
Cited – Kirk v Walton QBD 24-Jul-2008
kirk_waltonQBD2008
The defendant sought leave to bring proceedings for contempt of court against the claimant saying that she had had no honest belief in the matters deposed in her statement of truth, in that she had substantially exaggerated her injuries.
Held: . .
Applied – Sony Computer Entertainment and Others v. Ball and Others ChD 17-May-2004
Pumfrey J considered the test to be applied when a party applied for leave to commence proceedings for contempt of court against another party: ‘It seems to me, in the light of the judgment in Malgar v. Leach, that the discretion to permit . .
Cited – Kabushiki Kaisha Sony Computer Entertainment Inc (t/a Sony Computer Entertainment Inc) v Ball and Others ChD 17-May-2004
The claimant sought an order for the defendant to be pursued for contempt of court having filed a statement of truth which was known to be false. . .
Cited – KJM Superbikes Ltd v Hinton CA 20-Nov-2008
The claimant had been sued for the misuse of trademarks by selling motorcycles imported via a parallel market. It claimed that the defendant had filed false evidence in that action, and now appealed a refusal by the judge to bring contempt . .
Cited – Barnes (T/A Pool Motors) v Seabrook and Others Admn 23-Jul-2010
In each of three cases, the former defendants sought leave to bring claims for contempt of court in respect of what it said were fraudulent claims by the respondents. The defendants argued that a party had first to go to the Attorney General.
Cited – Hydropool Hot Tubs Ltd v Roberjot and Another ChD 4-Feb-2011
The parties disputed ownership of a customer database. An interim order had been made prohibiting the defendants’ from its use pending trial. A mandatory order had been made for the disclosure of a list of contacts made, and the claimant complained . .
Cited – Nield and Another v Loveday and Another Admn 13-Jul-2011
The court considered the institution of proceedings for contempt of court based upon an allegation that a document filed in court proceedings and supported by a statement of truth was false. In this case the defendant argued that the first claimant . .
Cited – Stobart Group Ltd and Others v Elliott QBD 11-Apr-2013
The defendant applied to the court for various officers of the cliamant companies to be subject to contempt proceedings. The claimants asked the court to strike of the defendant’s counterclaim and to make a civil restraint order against him. There . .
Cited – Berry Piling Systems Ltd v Sheer Projects Ltd TCC 28-Feb-2013
The defendant sought permission to bring contempt proceedings against former directors of the claimant company, saying that by means of false evidence they had secured an arbitration verdict.
Held: A reckless disregard for the truth or falsity . .
Cited – Hughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Civil Procedure Rules

Updated: 13 December 2021; Ref: scu.83345

Stoute v LTA Operations Ltd (T/A Lawn Tennis Association): CA 15 May 2014

The claimant issued proceedings requesting the court to return the summons to him for service. In error the court served direct. The defendant argued that the service error made the claim invalid, and in the circumstances out of time. The claimant appealed from a decision in the defendant’s favour.
Held: The appeal succeeded. ‘the principal question is whether the service of the claim form by the Court, in disregard of the Claimant’s notification that he wished to effect service himself, constituted ‘an error of procedure’ within the meaning of rule 3.10. In my view it did. ‘ However: ‘there may be cases of what might, on a literal approach, be describable as ‘errors of procedure’ but which are nevertheless of such a nature that they are evidently irremediable and cannot have been intended to fall within the scope of rule 3.10. But I see no reason why service in breach of rule 6.4 (1) should be regarded in that way – or, to put it more precisely, why it should be inferred that the rule-maker intended that rule 3.10 should be inapplicable in such a case. There is nothing in the language to compel any such conclusion: if anything, though I do not suggest that this is by itself conclusive, the use of the word ‘will’ rather than ‘shall’ or ‘must’ might be thought to point the other way. More substantially, there is nothing contrary to the fundamental scheme of the Rules, or radically unfair to the parties, in allowing such service to stand subject to any contrary order under rule 3.10 (a). There is nothing wrong in principle about service being effected by the Court: on the contrary, that is the primary route for which the Rules provide. The claim form will of course come formally to the attention of the defendant, which is the essential purpose of the rules about service. No difficulty will be created for the defendant, who will not at the time of service know that anything irregular has occurred and will simply proceed to respond in the usual way in accordance with Part 9 of the Rules. ‘

Rimer, Tomlinson, Underhill LJJ
[2014] EWCA Civ 657, [2014] WLR(D) 212, [2015] CP Rep 1, [2015] 1 All ER 131, [2015] 1 WLR 79
Bailii, WLRD
Civil Procedure Rules 6.4(1)
England and Wales

Civil Procedure Rules

Updated: 03 December 2021; Ref: scu.525645

Clarke v Cognita Schools Ltd (T/A Hydesville Tower School): ChD 1 Apr 2015

The claimants sought to have set aside statutory demands served to enforce judgmens, they said under a discrepancy. The order refusing their application should they said, have notified them of their right to appeal.
Held: None of the applicable rules expressly required otification that an appeal was available.

Newey J
[2015] EWHC 932 (Ch), [2015] WLR 3776, [2015] 2 All ER (Comm) 663, [2015] BPIR 444, [2015] WLR(D) 164, [2015] 1 WLR 3776, [2016] 1 All ER 477
Bailii, WLRD
Insolvency Act 1986 264, Insolvency Rules 1986, Civil Procedure Rules 3.3(5)
England and Wales

Insolvency, Civil Procedure Rules

Updated: 12 November 2021; Ref: scu.545433

Kojima v HSBC Bank Plc: ChD 22 Mar 2011

The defendant had been found to owe money to the bank. In order to avoid damaging his career he agreed to execute a charge to secure the judgment. He now sought release from that order, and to withdraw his admission of the debt. He had acted in person, but had since been advised that he might have a defence to the debt claim.
Held: The defendant’s appeal failed. To the extent that there exists any jurisdiction in the court to review its own final order, that is not to be justified on the alternative grounds first enunciated by Patten J, and approved in Collier v. Williams, in the context of procedural or other non-final orders, and once the court has finally determined a case, or part of a case, considerations of the type first identified by Patten J in Lloyds v. Ager-Hanssen will generally be displaced by the much larger, if not indeed overriding, public interest in finality, subject of course to the dissatisfied party’s qualified right of appeal. The judgment had been final, and the separate regime for setting aside judgments in default did not justify the different treatment of them in thses circumstances.

Briggs J
[2011] EWHC 611 (Ch), [2011] 13 EG 106, [2011] 3 All ER 359
Bailii
England and Wales
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen ChD 15-Jul-2003
The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
Cited – Collier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others ChD 14-Dec-2010
An application was made under Part 3.1(7) to vary an earlier final order made by the judge after a trial, on the application of the wife of one of the defendants whose potential interest in funds subject to the judge’s order had been overlooked by . .
Cited – Roult v North West Strategic Health Authority CA 20-May-2009
The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to . .
Cited – Edwards v Golding and others CA 3-Apr-2007
The claimant appealed against an order that his claim in defamation had failed for limitation, the judge having held that time ran from publication even though the claimant did not know the identity of the author.
Held: The appeal was . .
Cited – Simms v Carr ChD 7-Feb-2008
Appeal against withdrawal of order for security for costs. Morgan J explained one type of circumstance (judge misled) justifying re-opening an order: ‘The second case referred to by Patten J is where the court does not have a correct understanding . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Leading Case

Updated: 11 November 2021; Ref: scu.430747

Three Rivers District Council and Others, HM Treasury, v HM Treasury, The Governor and Company of the Bank of England (No 4): CA 7 Aug 2002

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.’

The Master of The Rolls, Lord Justice Chadwick And Lord Justice Keene
Times 04-Oct-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1182, [2003] 1 WLR 210, [2002] 4 All ER 881, [2003] CP Rep 9, [2003] CPLR 181
Bailii
Civil Procedure Rules 31.17(3)(a)
England and Wales
Citing:
Cited – American Home Products Corporation, Professor Roy Calne v Novartis Pharmaceuticals UK Limited, Novartis Pharma AG CA 27-Jul-2000
The invention was a second medical use for a known drug rapamycin, which was found to have an immuno-suppressive effect. The court asked whether a claim to rapamycin should be construed to include derivatives.
Held: A person skilled in the art . .

Cited by:
Cited – Lord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
Cited – Flood v Times Newspapers Ltd and others QBD 5-Mar-2009
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . .
Cited – Clifford v NGN Ltd and Mulcaire ChD 3-Feb-2010
There are three steps in every case where a party seeks disclosure from a third party: ‘(1) First it has to be shown that the documentation is likely to support the case of the applicant or adversely affect the case of the respondent. The word . .
Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.174769

Thomson v Berkhamsted Collegiate School: QBD 2 Oct 2009

Costs were to be sought against third parties to the action. A pupil had taken court action against the school seeking damages, alleging that it had failed to protect him from bullying. His action was discontinued. The school now sought its costs (andpound;250,000) from his parents, who had funded their son’s claim. The school sought disclosure of various documents.
Held: The court had power to make any necessary ancillary orders in a costs application. General principles were set down: ‘i) The order for payment of costs by a non-party would always be exceptional and any application should be treated with considerable caution.
ii) The application should normally be determined by the trial judge who could give effect to any views he had expressed as to the conduct of the non-party without constituting bias or the appearance of bias.
iii) The mere fact that someone has funded proceedings would generally be insufficient to support an application that they pay the costs of the successful party. Pure funders, as described at the case of Hamilton v Al-Fayed No. 2 [2002] EWCA Civ 665 reported [2003] QB 117 at [40], will not normally have the discretion exercised against them. That definition of ‘pure funders’ means those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.
iv) It is relevant but not decisive that the defendant has warned the non-party of the intention to seek costs or that the non-party’s funding has caused the defendant to incur the costs it would not otherwise have had to incur;
v) The conduct of the non-party in the course of the litigation and other than as a pure witness of material fact is of relevance and potential weight.
vi) Most of the decided cases on the exercise of the court’s discretion under section 51 concerned commercial funders or corporate bodies closely associated with the party who incurred the costs liability which they were unable to satisfy. In the family context, the courts have been reluctant to impose third party costs orders against those family or friends who in the interests of access to justice assist a party to come to court for philanthropic and disinterested reasons.
vii) In determining these applications the court must exercise its case management powers to ensure that the application does not turn into satellite litigation that results in prolonged, complex and over-extended arguments about costs about costs. For that reason the inherent strength of the application is always a relevant factor.’
In this case the parents were not acting in a disinterested fashion. There was a reasonable prospect of the claim for third party costs succeeding, and appropriate disclosure was ordered.

Blake J
[2009] EWHC 2374 (QB), [2010] CP Rep 5
Bailii
Supreme Court Act 1981, Civil Procedure Rules 48.2
England and Wales
Citing:
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Grecoair Inc v Tilling and others QBD 14-Jan-2009
The court has power to exercise disclosure orders in order to facilitate in an economical fashion a fair hearing of the application, although disclosure is often made without formal order. . .
Cited – PR Records Ltd v Vinyl 2000 Limited and others ChD 15-Jan-2008
The defendant in the main action sought a third party costs order. . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.375580

Ropac Ltd v Inntrepreneur Pub Co and Another: ChD 7 Jun 2000

There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a retrospective extension of time to comply with the order.
Held: The court retained the power to grant an order for extension of time even though the parties had previously agreed the terms of an ‘unless’ consent order and it had expressed time to be of the essence. The court’s case management powers had to be read in the light of the overriding objective as expressed in the Rules. Under the RSC the order in the case before him was in sufficiently clear terms to be a binding consent order with which the court would only have interfered in circumstances which would justify interference with a contract. Under the CPR however, the court had jurisdiction to extend time: ‘To my mind, the CPR therefore gives the Court rather more wide- ranging, more flexible powers than the RSC. In my judgment, those powers are to be exercised not merely to do justice between the parties, but in the wider public interest. Further, the objective to deal with a case justly must, as I see it, sometimes (albeit rarely) require the court to override an agreement made between the parties in the course of, and in connection with, the litigation. I consider that this means that the court has greater power to interfere than before. Having said that, I should add this. Where the parties have agreed in clear terms on a certain course, then, while that does not take away its power to extend time, the court should, when considering an application to extend time, place very great weight on what the parties have agreed and should be slow, save in unusual circumstances, to depart from what the parties have agreed.’
Neuberger J set out the process he had to apply to to extend time in respect of a consent order. He said at: ‘First, at least in general, if the order was a genuine consent order, that is representing a contractual agreement between the parties, and stated that, if a party did not do something within a specified time, then his claim or defence would be struck out or that there would be some other sanction, that represented a contract with which the court had no power to interfere, save in circumstances in which the court has power to interfere with a contract. That seems to me to be the effect of the judgments in Purcell v FC Trigell Limited [1971] 1 QB 359 – see at 365G per Winn LJ and 366D per Buckley LJ .’
Neuberger J
Times 21-Jun-2000, Gazette 29-Jun-2000, [2001] LandTR 10
Civil Procedure Rules 81
England and Wales
Citing:
Cited – Purcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
Cited – Siebe Gorman and Co Limited v Pneupac Limited CA 1982
Lord Denning MR discussed the meaning of ‘consent order’ saying: ‘There are two meaning to the words ‘by consent’. One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only . .
Cited – Tigner Welsh London Company Limited v Spiro 1992
. .

Cited by:
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Cited – Weston v Dayman CA 7-Jun-2006
The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power . .
Cited – Community Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
ccne_durhamCA10
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
Cited – Watson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.88860

Altomart Ltd v Salford Estates (No 2) Ltd: CA 29 Oct 2014

Reasons for grant of additional time to file respondent’s notice
Moore-Bick, Ryder LJJ, David Richards J
[2014] EWCA Civ 1408, [2015] 1 WLR 1825, [2014] WLR(D) 451, [2014] 6 Costs LR 1013, [2015] CP Rep 8
Bailii, WLRD
Civil Procedure Rules
England and Wales

Updated: 07 August 2021; Ref: scu.538146

Braybrook v The Basildon and Thurrock University NHS Trust; 7 Oct 2004

References: [2004] EWHC 3352
Coram: Sumner J
Sumner J gave guidance on the withdrawal of an admission under the CPR: ‘From the cases and the CPR I draw the following principals:
1. In exercising its discretion, the court will consider all the circumstances of the case and seek to give effect to the overriding objective.
2. Among the matters to be considered will be:
(a) The reasons and justifications for the Application which must be made in good faith;
(b) The balance of the prejudice to the parties and whether a party has been the author of any prejudice they might suffer;
(c) The prospect of success of any issue arising from the withdrawal of an admission;
(d) The public interest in avoiding possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvoring.
3. The nearer any Application is to a final hearing, the less chance of success it will have, even if the party making the Application can establish clear prejudice. This may be decisive if the application is made shortly before the hearing.’
Statutes: Civil Procedure Rules 14
This case is cited by:

  • Cited – Kingsway Hall Hotel Ltd -v- Red Sky IT (Hounslow) Ltd TCC (Bailii, [2010] EWHC 965 (TCC))
    The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The . .
  • Approved – Sowerby -v- Charlton CA (Bailii, [2005] EWCA Civ 1610, Times 05-Jan-06, [2006] 1 WLR 586)
    Before proceedings, in without prejudice discussions, the defendant made certain admissions. They were withdrawn before proceedings commenced. The claimant said that they could not be withdrawn.
    Held: Until proceedings began the Civil . .
  • Cited – Berg -v- Blackburn Rovers Football Club & Athletic Plc ChD (Bailii, [2013] EWHC 1070 (Ch), [2013] IRLR 537)
    The claimant sought damages after termination of his contract of employment as manager of the defendant football club. The Club now sought leave to withdraw an admission of liability as to payment in respect of a minimum period of notice.