Naylor v Preston Health Authority: CA 1987

The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are ‘playing with all the cards face up on the table’ the Master of the Rolls considered that there is ‘a duty of candour resting on the professional man’ and he concluded: ‘Accordingly the court has to have regard to all the circumstances although, in the nature of things, they are likely to be different in medical cases when contrasted, for example, with those involving barristers, solicitors, surveyors or accountants. The exercise of discretion has to be approached on the basis of the philosophy that the basic objective is always the achievement of true justice, which takes account of time, money and what can only be described as the anguish of uncertainty, as well as of a just outcome. It has to be exercised on the basis that the procedure of the courts must be, and is, intended to achieve the resolution of disputes by a variety of methods, of which a resolution by judgment is but one, and probably the least desirable. Accordingly anything which enables the parties to appreciate the true strength or weakness of their positions at the earliest possible moment and at the save time enables them to enter upon fully informed and realistic discussions designed to achieve a consensual resolution of dispute is very much in the public interest. ‘

Judges:

Sir John Donaldson MR

Citations:

[1987] 1 WLR 958, [1987] 2 All ER 353

Jurisdiction:

England and Wales

Cited by:

Litigation Practice, Evidence

Updated: 06 May 2022; Ref: scu.186048

Steel v Commissioner of the Metropolitan Police: 10 Feb 1993

The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the plaintiffs, who had served their time afer convictions for robbery which were subsequently quashed. They said the confessions were fabricated. Their appeals were allowed after evidence that officers had improperly procured the conviction of other defendants in similar ways. To succeed the plaintiffs had to prove that prosecutions were unfounded. The officers’ state of mind was essential. Documents were sought to be discovered to provide evidence of similar facts in proof of the misconduct the prosecution. Evidence of the officers’ dishonesty went beyond discrediting him as a witness. They showed similar conduct in other cases. The judge refused specific discovery saying it was not similar fact evidence. The matters relied on were not concerned to rebut a defence of accident or coincidence. They did not show system, and they had no direct probative value in relation to the issue in the present case. They were merely attacks on credit, and the plaintiffs already possessed ample evidence for this purpose. The appeal was allowed. At discovery the court lookd to potential rather than actual admissibility. ‘In my view conduct of this kind is so contrary to the expected standard of behaviour of an investigating police officer that, if proved, it is capable of rendering it more probable that the plaintiffs’ alleged confession was not made and proving that D/Sgt Day had no sufficient belief in the grounds of and an improper motive for the prosecution of the plaintiffs.’ For the purpose of specific discovery, it was enough to show ‘sufficient similarity’ (as opposed to a ‘striking similarity’) between the other conduct and the conduct in the present action. He dismissed the ‘mere propensity’ argument in these terms: ‘I consider the significance of the misconduct alleged went beyond mere propensity. All similar fact evidence relating to misconduct on other occasions could be stigmatised as showing a propensity to behave in that fashion, but the allegations in the present case, if accepted, show that on other occasions D/Sgt Day was prepared to pervert the course of justice in a manner which made it more probable that he did so on the occasion in question.’

Judges:

Beldam, Dillon, and Roch LJJ

Citations:

Unreported, 10 February 1993

Jurisdiction:

England and Wales

Citing:

Cited by:

Evidence, Litigation Practice

Updated: 06 May 2022; Ref: scu.186051

Joy v Phillips Mills and Co Ltd: CA 1916

Circumstantial evidence of ‘the habits and ordinary doings’ may be admissible.
Phillimore LJ said: ‘Wherever an inquiry has to be made into the cause of the death of a person, and, there being no direct evidence, recourse must be had to circumstantial evidence, any evidence as to the habits and ordinary doings of the deceased which may contribute to the circumstances by throwing light upon the probable cause of death is admissible, even in the case of a prosecution for murder.’

Judges:

Phillimore LJ

Citations:

[1916] 1 KB 849

Jurisdiction:

England and Wales

Cited by:

Evidence

Updated: 06 May 2022; Ref: scu.186050

Brown v Eastern and Midlands Railway Co: 1889

Citations:

(1889) 22 QBD 391

Jurisdiction:

England and Wales

Cited by:

Cited – Mood Music Publishing Co v De Wolfe Ltd CA 1976
The plaintiffs alleged breach of copyright case involving music and sought to have admitted in evidence similar fact evidence showing that the defendants had published music resembling material protected by copyright in the past. The defendant . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 06 May 2022; Ref: scu.186043

Regina v Straffen: CCA 20 Aug 1952

The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions made at Broadmoor and of the earlier allegations.
Held: The Judges’ Rules were intended to control the admission of statements made to the police, not statements alsewhere. The statement was admissible. The defendant had denied the murder but in doing so had admitted the earlier murders. The general rules is not to admit such evidence. The similar fact evidence could be described as evidence of pure propensity to commit crimes similar to that with which he was charged.

Judges:

Slade, Devlin, Gorman JJ

Citations:

[1952] 2 QB 911

Jurisdiction:

England and Wales

Citing:

Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
Cited – Harris v Director of Public Prosecutions HL 1952
The House discussed the principle laid down in Makin’s case as to the admission of similar fact evidence.
Held: After approving the case, Lord Simon said: ‘It is, I think, an error to attempt to draw up a closed list of the sort of cases in . .
Cited – Perkins v Jeffery 1915
Similar fact evidence might be admitted to help identify the defendant. . .
Cited – Thompson v Director of Public Prosecutions HL 1918
The defendant was charged with gross indecency against boys. The defendant denied that he was the offender. Evidence was admitted that on arrest the defendant was in possession of powder puffs and that a search of his rooms uncovered indecent . .

Lawton LJ

Citations:

(1978) 122 SJ 367

Jurisdiction:

England and Wales

Citing:

Cited by:

Cited – Berger v Raymond Sun Ltd 1984
The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil . .
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Cited – O’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 06 May 2022; Ref: scu.186046

Moore v Ransome’s Dock Committee: 1898

Citations:

(1898) 14 TLR 539

Jurisdiction:

England and Wales

Cited by:

Evidence

Updated: 06 May 2022; Ref: scu.186044

Rex v Smith: 1915

Citations:

(1915) 11 Cr App R 229

Jurisdiction:

England and Wales

The civil standard of proof is flexible and the court may properly require a higher degree of probability which is appropriate to what is at stake. ‘… the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue.’

Judges:

Dixon J

Citations:

(1948) 77 CLR 191

Cited by:

Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Evidence

Updated: 01 May 2022; Ref: scu.237707

Main v Andrew Wormald Ltd: 1988

Hales v Kerr: 1908

The court heard evidence that individuals other than the plaintiff had contracted infectious diseases after being shaven by a barber who had a practice of using razors and appliances that were dirty and unsanitary.
Channell J said: ‘It is not legitimate to charge a man with an act of negligence on a day in October and to ask a jury to infer that he was negligent on every day in September . . But when the issue is that the defendant pursues a course of conduct which is dangerous to his neighbours, it is legitimate to show that his conduct has been a source of danger on other occasions, and it is a legitimate inference that, having caused injury on those occasions, it has caused injury in the plaintiff’s case also . .’

Judges:

Channell J

Citations:

[1908] 2 KB 601

Jurisdiction:

England and Wales

(1896) 60 JP 491

Citing:

Compare – Regina v Male 1893
The court rejected a statement made by a prisoner in custody to a constable who had cross-examined him, saying merely that the police have no right to manufacture evidence. . .

Cited by:

Criminal Practice, Evidence

Updated: 29 April 2022; Ref: scu.184194

Regina v Thompson: 1893

No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

Citations:

(1893) 2 QB 12

(1990) 91 Cr App R 186 CA

Cited by:

Disapproved – Regina v Shephard HL 16-Dec-1992
The defendant had been convicted of theft from a supermarket. The evidence was that the till rolls did not include the goods the subject of the charge. She argued that it should not have been admitted as evidence, without supporting evidence that . .
Cited – Regina (O) v Coventry Magistrates Court QBD 5-Apr-2004
The defendant was charged with incitement to distribute indecent images of children. He complained that the evidence relied upon were print-outs of pages on a web-site, being hearsay, and inadmissible as evidence not merely of the computer but of a . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 29 April 2022; Ref: scu.183039

England and Wales

Cited by:

Evidence

Updated: 28 April 2022; Ref: scu.181004

Regina v Minors, Regina v Harper: CACD 14 Dec 1988

In each case, the prosecution had produced a computer record to the court as evidence. The record was a computer print out. They challenged their convictions.
Held: To admit such evidence, the court had to see compliance with both sections. There should if necessary, be a trial within a trial first, to decide whether the document would generally be admissible under section 68, followed by a test of whether the specific provisions for computer data were also met.
cw Crime – Evidence – Documents, admissibility of – Computer print- outs – Computer records of stolen tickets and records of building society account – Procedure for admitting computer printouts in evidence – Whether printouts admissible in evidence

Judges:

Watkins L.J., Bush and Steyn JJ

Citations:

[1989] 1 WLR 441 CA

Links:

lip

Statutes:

Police and Criminal Evidence Act 1984 68 69

Jurisdiction:

England and Wales

Citing:

Considered – Regina v Ewing CA 1983
The admissibility of a handwriting comparison depended upon the control sample being ‘proved to the satisfaction of the judge to be genuine’.
Held: This meant that the judge had to apply the criminal standard of proof to the question. . .
Cited – Regina v Bray CA 4-Jul-1988
. .
Cited – Regina v Ewing CA 1983
The admissibility of a handwriting comparison depended upon the control sample being ‘proved to the satisfaction of the judge to be genuine’.
Held: This meant that the judge had to apply the criminal standard of proof to the question. . .
Cited – Regina v Wood 1982
. .
Cited – Sophocleous v Ringer 1988
. .

Updated: 28 April 2022; Ref: scu.222864

The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: The appeal succeeded. There were difficulties in construing the contract. The contract came to be read after a period of sharp falls in value which were not reflected comfortably in the words used, and the phrase ‘additional residential payment’ made no particular commercial sense. It was necessary for it to be clear first that the language had gone awry, and second what a reasonable bystander would have understood the parties to have meant. Those conditions being satisfied, the appeal was allowed.
Evidence of negotiations can be given to establish that ‘a fact which may be relevant as background was known to the parties’. It was also argued that the course pre-contractual negotiations should be allowed and taken into account in construing the contract. There was however no clear case shown for departing from this exclusionary rule or changing what is now settled practice.
The court should consider ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.’
Lord Hoffmann noted that prior negotiations might be relevant for purposes other than the drawing of inferences about what the contract means.
As to the cases of East and KPMG, he said: ‘What is clear from these cases is that there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant. In my opinion, both of these requirements are satisfied.’
Lord Hoffmann said: ‘words used as labels are seldom arbitrary’
Lord Hoffmann (obiter) where the document of which rectification is sought is a written contract, the relevant test of intention is purely ‘objective’ – meaning by this what a reasonable observer with knowledge of the background facts and prior communications between the parties would have thought their common intention at the time of contracting to be.

Judges:

Lord Hope of Craighead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond

Citations:

[2009] UKHL 38, Times 02-Jul-2009, [2009] 27 EG 91, [2009] BLR 551, 125 Con LR 1, [2009] 3 WLR 267, [2010] 1 P and CR 9, [2009] Bus LR 1200, [2009] NPC 86, [2009] CILL 2729, [2009] 4 All ER 677, [2009] 1 AC 1101, [2009] WLR (D) 223

Links:

Bailii, WLRD, HL

Jurisdiction:

England and Wales

Citing:

At first instance – Chartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
Appeal from – Chartbrook Ltd v Persimmon Homes Ltd CA 12-Mar-2008
Owners of land (Chartbrook) made a contract with a developer (Persimmon) granting Persimmon a licence to develop the land for commercial and residential use. Planning permission was granted and the development was built. The sums payable to . .
Cited – A and J Inglis v Buttery and Co CA 1877
Surrounding circumstances are not admissible for any purpose of finding out which words the parties intended to use rather than did use in their contract. Lord Justice Clerk Moncreiff said that in all mercantile contracts ‘whether they be clear and . .
Cited – River Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Birmingham City Council v Walker HL 16-May-2007
The tenant was the son of the former tenant. The tenancy had originally been in the ownership of his father and his mother. The father died in 1969, when the tenancy not yet a secure tenancy. On the mother’s death, the council argued that the first . .
Cited – A and J Inglis v Buttery and Co HL 1878
The presumption is that a contract document expresses all the terms in the contract with the effect that the court will only look to the document ‘in determining what the contract really was and what it really meant. Lord Blackburn preferred the . .
Cited – KPMG Llp v Network Rail Infrastructure Ltd CA 27-Apr-2007
The parties disputed the interpretation of a break clause in their lease. Carnwath LJ said that courts should not readily accept that parties have made mistakes in formal documents: ‘correction of mistakes by construction’ is not a separate branch . .
Cited – Alexiou and Another v Campbell PC 26-Feb-2007
(the Bahamas) . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – East v Pantiles Plant Hire Ltd CA 1981
The court considered the circumstances under which rectification could properly be ordered in respect of a deed. Brightman LJ said: ‘It is clear on the authorities that a mistake in a written instrument can, in certain limited circumstances, be . .
Cited – Jumbo King Ltd v Faithful Properties Ltd 2-Dec-1999
(Court of Final Appeal of Hong Kong) . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Countess of Rutland’s Case 1604
Popham CJ said: ‘it would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the . .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Bratton Seymour Service Co Ltd v Oxborough CA 1992
The company was set up to acquire and manage a property divided into flats which also included ‘amenity areas’ (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Partenreedesei Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann) 1976
The parties disputed the application of the word ‘after’ in a break-clause in a charter party which provided that ‘Charterers to have the option to redeliver the vessel after 12 months’ trading subject giving 3 months’ notice’. By their negotiations . .
Cited – Shore v Wilson 1842
Parke B said: ‘In the first place, there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a . .
Cited – Regina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Stevens and others v Bell and others CA 20-May-2002
Interpretation of the trustees’ powers with respect to surplus under the Airways Pension Scheme
Orse British Airways Pension Trustees Ltd v British Airways Plc . .

Cited by:

Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Cited – Westvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Horwood and Others v Land of Leather Ltd and Others ComC 18-Mar-2010
The claimants sought to claim for personal injuries against the defendant company, now in administration, and their insurers using the 1930 Act. The insurers said they were not liable to indemnify the company. The parties disputed the standing of an . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd ChD 11-Mar-2010
The claimant sought summary judgment for a claim under Licensing agreements under which the defendants had marketed and sold the claimant’s products. The remaining disputes concerned differences as to royalties from digital downloads sold through . .
Cited – Ashcroft v Barnsdale and Others ChD 30-Jul-2010
The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the . .
Cited – Wickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Campbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Sugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .
Cited – Lloyds TSB Bank Plc v Crowborough Properties Ltd and Others CA 12-Feb-2013
The court was asked whether Lloyds TSB Bank Plc was entitled to rectify the terms of a compromise embodied in the schedule to a Tomlin order. . .
Cited – Arnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Not applicable – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Not Followed – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Cited – Barnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .
Cited – The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others SC 15-Jan-2021
Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been . .
Cited – R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd SC 27-Mar-2019
The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and . .
Cited – London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and Others SC 3-Jul-2019
The second respondent sought a certificate from the Council determining that the lawful use of its store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a . .
Cited – London Borough of Lambeth v Secretary of State for Communities and Local Government and Others CA 20-Apr-2018
The parties disputed the validity of the time-limit condition (condition 1), which required the ‘development to which this permission relates’ to be begun within three years.
Held: The Court upheld the inspector’s decision that this condition . .
Cited – London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and Others SC 3-Jul-2019
The second respondent sought a certificate from the Council determining that the lawful use of its store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a . .
Lists of cited by and citing cases may be incomplete.

Appeal from – A T and T Istel Ltd and Another v Tully and Others CA 15-Jan-1992
An order that the results of disclosure were not to be used in criminal proceedings was enough to protect the defendant. The privilege against self incrimination could be over-ridden in this way, even if that privilege should be lightly set aside. . .

Cited by:

Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – Gray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.

Evidence, Human Rights

Updated: 08 April 2022; Ref: scu.77583

AMDC v AG and Another: CoP 18 Nov 2020

Guidance for Expert Witnesses on Capacity

The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the following:
a. An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.
b. The letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.
c. It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005.
d. In cases where the expert assesses capacity in relation to more than one decision,
i. broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision;
ii. experts should ensure that their opinions in relation to each decision are consistent and coherent.
e. An expert report should not only state the expert’s opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed.
f. If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed.
g. The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included.
h. If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hits a ‘brick wall’ with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P’s capacity or P’s engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005 ss 1(3) and 3(2).’

Judges:

Poole J

Citations:

[2020] EWCOP 58

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
Cited – LBL v RYJ and Another CoP 22-Sep-2010
Whether RYJ lacked capacity to litigate.
Held: For such capacity the person must understand the salient information but not necessarily all the peripheral detail. . .
Cited – Cheshire West and Chester Council v P and Another COP 14-Jun-2011
The patient, an adult without capacity and with Down’s syndrome and cerebral palsy complained of his treatment, when in order to prevent his habit of eating his nappy, they dressed him in an adult babygrow costume. The court was asked whether the . .
Cited – PH v A Local Authority CoP 30-Jun-2011
The Court was asked whether PH, a forty-nine year old man, suffering from Huntingdon’s Disease had capacity to make decisions about his residence, care and treatment. . .
Cited – London Borough of Tower Hamlets v NB (Consent to Sex) CoP 16-Jul-2019
The Court considered the capacity of the patient to consent to sexual relations.
Held: The criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which . .
Cited – London Borough of Tower Hamlets v PB CoP 3-Jul-2020
Whether PB had capacity to litigate.
Held: Hayden J gave guidance as to the general approach to be taken by the court when determining an issue of capacity: ‘i. The obligation of this Court to protect P is not confined to physical, emotional . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Health

Updated: 07 April 2022; Ref: scu.656017

Regina v Musquera: CACD 1999

The court observed that, while the decision in DPP v P had eliminated the necessity to identify a striking similarity, it was still necessary to invoke some identifiable common feature or features constituting a significant connection and going beyond mere propensity or coincidence. ‘It is certainly the case that when the issue is . . . that a particular witness is lying, a lesser degree of similarity between the two allegations is likely to suffice to make them cross-admissible than when the issue is, for example, the identity of the defendant . . ..’ but ‘ . . it is still necessary to invoke some common identifiable feature or features constituting a significant connection and going beyond mere propensity of co-incidence.’

Judges:

Potter LJ

Citations:

[1999] Crim LR 857

Jurisdiction:

England and Wales

Citing:

Cited – Director of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .

Cited by:

Cited – Regina v Venn CACD 1-Feb-2003
The defendant appealed convictions for sexual assault against four young girls.
Held: The admissibility of ‘similar fact’ evidence depends upon the degree of its relevance. If only suggests propensity it is inadmissible. If it goes further and . .
Cited – Brizzalari v Regina CACD 19-Feb-2004
Limits to Requests for Adverse Inferences
In closing, prosecuting counsel had suggested that during the trial two matters had been mentioned by the defence which had not been mentioned earlier, and that the jury should feel free to draw proper inferences under the 1984 Act from that . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 05 April 2022; Ref: scu.181003

No Litigation Privilege without Dominant Purpose

An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation privilege. There is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court. The report undoubtedly contained material collected by or on behalf of the Board for the use of their solicitors in anticipated litigation, but because it could not be shown that this was its dominant purpose the document did not attract litigation privilege.
Legal advice privilege has to be distinguished from litigation privilege. The need to make that distinction was sometimes overlooked: ‘It is for the party refusing disclosure to establish his right to refuse. It may well be that in some cases where that right has in the past been upheld the courts have failed to keep clear the distinction between (a) communications between client and legal adviser, and (b) communications between the client and third parties, made (as the Law Reform Committee put it) ‘for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.”
A ‘dominant purpose’ test was the best method of resolving the competing principles that on the one hand there should be full disclosure of relevant material in litigation, and on the other, there must be effective maintenance of legal professional privilege.

Judges:

Lord Simon, Lord Edmund Davies, Lord Wilberforce

Citations:

[1980] AC 521, [1979] UKHL 2, [1979] 3 WLR 150, [1979] 2 All ER 1169, [1979] UKHL TC – 53 – 185

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Approved – Re Highgrade Traders CA 1984
Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect. . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – Re Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Wright v Sullivan CA 27-May-2005
The claimant had appointed a clinical case manager. She appealed an order requiring the case manager to report also to the court.
Held: The case manager’s duties were purely to the claimant, and an order requiring that manager to report also . .
Cited – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
Distinguished – Sugar v The British Broadcasting Commission and Another (No 2) CA 23-Jun-2010
The respondent had had prepared a report as to the balance of its reporting of the Israeli-Palestinian conflict. Earlier proceedings had established that the purposes of the holding of the reporting included jurnalism. The claimant now appealed . .
Cited – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.

England and Wales

Citing:

Doubted – Regina v Gavin 1888
The court excluded a statement made to a constable, who questioned his prisoner in a way that amounted to cross-examination. A constable has no right to ask questions without expressly saying that the answers cannot be relevant evidence. . .

Cited by:

Criminal Practice, Evidence

Updated: 09 February 2022; Ref: scu.184198

Regina v Sonni Lee Reid and Others: CACD 31 Jul 2001

The six defendants had been convicted of murder. They had been involved in a mugging where both victims had been assaulted, and thrown from a bridge into the river. Only one survived. They applied a second time for leave to appeal against conviction. A medical report on one defendant had been disclosed in error, but was then admitted, but no prejudice was found. The practice of the prosecution of routinely obtaining psychiatric reports, which were not privileged, in murder cases is to be deprecated. Another defendant alleged she had been present only as a passive witness, but it was held that the extent of her involvement had been left properly with the jury. Leave was refused.

Judges:

Lord Justice Rose, Mr Justice Bell, Mr Justice Stanley Burton

Citations:

Unreported, 31 July 2001

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Central Criminal Court ex parte Porter 1992
. .
Cited – Regina v Shahid, Miah, Uddin CACD 12-May-1998
. .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 01 February 2022; Ref: scu.159887

Elliott v Ratcliffe: FD 1 Feb 2013

The claimant sought a declaration of parentage in respect of a child under the 1986 Act, saying that he was not the father. Directions were given for a company to take samples, but instead the company requested the various parties to attend their own doctors for the samples to be taken. The parties disputed the validity of the chain of custody of the samples.
Held: The service may be adequate when parties wish to undertake private checks of paternity, but that was not what the court had ordered. The case would require adjournment for further evidence.

Holman J
[2013] EWHC 806 (Fam)
Bailii
Family Law Act 1986 55A
England and Wales

Children, Evidence

Updated: 26 January 2022; Ref: scu.472577

Couwenbergh v Valkova: CA 27 May 2004

The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect execution. At a first trial, the claimant failed. After a much later investigation by the police, new evidence challenged the execution in front of witnesses.
Held: As a second request, the claimant had to satisfy the test in Taylor v Lawrence. The new evidence might be credible and should be admitted, but there was a real possibility that a new trial would not be effective. Nevertheless, an appeal would be allowed to go ahead. The parties were reminded of the effect on costs of a refusal to consider mediation.

Lord Justice Waller Lord Justice Ward
[2004] EWCA Civ 676
Bailii
England and Wales
Citing:
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
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 – Hip Foong Hong v H Neotia and Co PC 15-Jul-1918
An appellate Court has inherent power to set aside a judgment obtained through fraud. Lord Buckmaster described how an appellate court should deal with an allegation that an earlier judgment had been obtained by fraud: ‘Where a new trial is sought . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
Cited – Jonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
Cited – Flower v Lloyd CA 11-Jun-1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .
Cited – Sohal v Sohal CA 30-Jul-2002
It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal.
Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: ‘There is no . .
Cited – The Ampthill Peerage Case HL 1977
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . .
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited by:
See Also – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
See Also – Couwenbergh v Valkova ChD 16-Oct-2008
Challenge to admission of will to probate.
Held: The presumption of due attestation of a will had not been rebutted. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 21 January 2022; Ref: scu.197941

Carmichael v Carmichael (669): 22 Apr 1845

[1845] EngR 669, (1845) 2 Holt Eq 1, (1845) 71 ER 771
Commonlii
England and Wales

Evidence

Updated: 20 January 2022; Ref: scu.303811

Regina v Governor of Pentonville Prison, Ex Parte Osman: QBD 30 Mar 1988

The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international borders, if he had committed the acts alleged in the UK an offence would not have been committed, since the funds were transmitted from abroad, and the offences were extra-territorial.
Held: The act of appropriation occurred when the defendant assumed the rights of an owner. His sending of the telex was the last act he needed to do, and that would not be extra territorial. The evidence required was that upon which a properly directed jury could commit. Last, the procedure under the 1967 Act was to be similar to that in the 1870 Act. Accordingly the list of offences could be phrased in general terms, and was capable of amendment. As regards evidence from computer printouts, the provisions of subsection 2 were alternatives, and not cumulative, since section 68(1)(b) required any one of them to be present. If there was no internal evidence of malfunction, such a printout should be admitted under section 69. Once documents which may have had legal professional privilege had been produced that did not affect their later admission. Police powers of arrest and search were the same on a domestic crime as under the 1967 Act.
Lloyd LJ observed: ‘The practice in extradition cases has been that the English ‘offences’ are stated in the authority to proceed in very general terms. The magistrate is not, of course, concerned with whether the offence is made out in foreign law. He is concerned solely with whether the evidence would support committal for trial in England, if the conduct complained of had taken place in England: see In re Nielsen [1984] AC 606. So the magistrate is furnished at the commencement of the hearing with a schedule of charges based on the alleged conduct and formulated in accordance with English law. The schedule of charges is frequently amended in the course of the hearing.’

Lloyd LJ and French J
[1990] 1 WLR 277
Fugitive Offenders Act 1967 5 7(5) 8, Police and Criminal Evidence Act 1984 68(1)(2), Theft Act 1968 (c. 60) 3(1), Extradition Act 1870
England and Wales
Citing:
Cited – Regina v Morris (David); Anderton v Burnside HL 2-Jan-1983
The defendants had been accused of theft. One switched labels on a joint of pork in a supermarket, and the other presented the meat with the now cheaper label for purchase.
Held: The appeals were dismissed. There can be no conviction for theft . .
Cited – Regina v Navvabi CACD 1986
. .
Cited – Chan Man-sin v The Queen PC 1988
. .
Applied – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Distinguished – Regina v Governor of Pentonville Prison, Ex parte Tarling HL 1978
The Government of Singapore sought Mr Tarling’s extradition inter alia on two charges of conspiring in Hong Kong to steal shares in a Hong Kong company, the property of a Singapore Company.
Held: a conspiracy in Hong Kong to steal shares in a . .
Cited – Regina v Governor of Brixton Prison, Ex parte Gardner QBD 1968
A person was not eligible for surrender to New Zealand, the requesting country, because the offences with which he was charged in New Zealand involved the obtaining of property by knowingly false representations as to future conduct. English . .
Cited – Calcraft v Guest CA 1898
A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The . .
Cited – Kajala v Noble CACD 1982
The best evidence rule does not generally exclude the admission of evidence of lesser quality. If such a rule exists, it applies only to documents in the possession of the party
Ackner LJ said: ‘The old rule, that a party must produce the best . .

Cited by:
Considered – Regina (Michael Rottman) v Commissioner of Police for Metropolis and Secretary of State for Home Department Admn 24-Jul-2001
There is no residual common law power of entry for police to enter into premises to execute a search without first obtaining a warrant, beyond that contained in the Act. The Act was intended to provide a complete statement of the powers of entry for . .
Cited – Masquerade Music Ltd and Others v Bruce Springsteen CA 10-Apr-2001
The respondent was a composer who sought to restrict the import of CDs containing his music into the UK. The appellants responded putting him to strict proof of his title. The title included assignments from a partnership to limited companies, but . .
Cited – Regina v Commissioner of Police for The Metropolis, ex parte Rottman HL 16-May-2002
The defendant had been arrested under an extradition warrant issued under the Act. The police had searched his premises, and found further evidence which was used to support the application for extradition. He challenged the collection and admission . .
Cited – Holmes v Governor of Brixton Prison and Another Admn 20-Aug-2004
The applicant sought his release from imprisonment where he awaited extradition to Germany. He was suspected of an offence of deception. He said there was insufficient evidence that the offence alleged would be an offence here. The alleged offence . .
Cited – Gomes v Trinidad and Tobago HL 29-Apr-2009
Each appellant challenged orders for their extradition, saying that the delay had been too prolonged, and that detention in Trinidad’s appalling jails would be an infringement of their human rights.
Held: The House had to consider its own . .

Lists of cited by and citing cases may be incomplete.

Extradition, Evidence, Extradition, Police

Updated: 20 January 2022; Ref: scu.175510

Ventouris v Mountain: CA 1991

It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege.’ That requirement was supported by legal professional privilege, but privilege does not attach to a document obtained by a party or his adviser for the purpose of litigation if the document did not come into existence for that purpose. ‘The ratio of the decision [in Lyell v. Kennedy] is, I think, that where the collection of documents which a solicitor has copied or assembled betrays the trend of the advice which he is giving the client the documents are privileged.’ The Oregon manager’s letter in Anderson v Bank of British Columbia would be regarded as privileged as a letter written for the purpose of laying before a solicitor in order to obtain legal advice.
Bingham LJ said: ‘The expression ‘legal professional privilege’ is unhappy, because it falsely suggests a privilege enjoyed by the legal profession when in truth it is not the legal profession but the client who enjoys the privilege. It also suggests, surely wrongly, that a litigant in person is denied in preparing his litigation, the protection of secrecy which is enjoyed by a litigant who instructs a lawyer. The expression ‘litigation privilege,’ which has also and perhaps increasingly been used, avoids that objection but is itself open to the objection that it suggests a privilege pertaining to litigation, whereas it is clear that the privilege covers communications between the client and his agent and his professional legal adviser even when no litigation is pending or contemplated.’
He also said: ‘The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege . . ‘

Bingham LJ
[1991] 1 WLR 607, [1991] 3 All ER 472
England and Wales
Citing:
Cited – Lyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .
Cited – Anderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .

Cited by:
Cited – Brown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Teal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Evidence

Updated: 20 January 2022; Ref: scu.180869

Lyell v Kennedy (No 3): CA 8 Apr 1884

The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s possession barred the plaintiff’s claim. This in turn raised issues as to the intestate’s pedigree and as to the heirship to her estate. In the course of preparing the defendant’s defence in the action, his solicitors had obtained copies of and extracts from certain entries in public registers, together with photographs of certain tombstones and houses. By his affidavit of documents the defendant objected to produce these documents on the ground firstly that they had come into existence for the purpose of the litigation, and secondly: ‘that for the purpose of his defence . . he had through his solicitors to obtain the assistance of counsel, and for that purpose to make searches and inquiries, and obtain copies of entries in registers, public records, and other original documents, not in his possession, and that his solicitors employed confidential clerks, and confidential agents, and his solicitors and their clerks and agents in the course of such employment and for the purposes aforesaid, made and obtained the copies, and procured the photographs’. The plaintiff sought disclosure, contending that the documents in question were unprivileged. Opposing disclosure, the defendant argued that: ‘…. the discretion exercised by the solicitor …. in the choice of a series of extracts and copies, records and registers, and the omission of others, prevents it being a mere servile copying of public documents, which would not be privileged, but that it represents the work of the solicitor’s mind, and might be a means of showing to the Plaintiff the idea entertained by him of his client’s case.’
Held: As to privilege: ‘What ought we to do here? Here is a litigation about pedigree and the heirship to a lady who died many years ago; and it is sworn by the Defendant that for the purpose of defending himself against various claimants he has made inquiries, and that he has obtained every one of those documents for the purpose of protecting himself, and that he has got them, not himself personally, but that his solicitors have got them, for the purpose of his defence, for the purpose of instructing his counsel, and for the purpose of conducting this litigation on his behalf. Now no case has been quoted where documents obtained under such circumstances have been ordered to be produced. In my opinion it is contrary to the principle on which the court acts with regard to protection on the ground of professional privilege that we should make an order for their production; they were obtained for the purpose of his defence, and it would be to deprive a solicitor of the means afforded for enabling him to fully investigate a case for the purpose of instructing counsel if we required documents, although perhaps publici juris in themselves, to be produced, because the very fact of the solicitor having got copies of certain burial certificates and other records, and having made copies of the inscriptions on certain tombstones, and obtained photographs of certain houses, might shew what his view was as to the case of his client as regards the claim made against him. There is no case, as I have said before, which is exactly in point, but Walsham v. Stainton, though different in its circumstances, somewhat illustrates the principle to which I am referring, because there, when that case came before Vice-Chancellor Wood, he protected the records and extracts from books which had been made by an accountant for the defendants, who had collected together a number of entries, because the extracts, when put together, shewed the view which he and the solicitor of the defendants took of the particular fraud which they were there investigating, and the Judge considered that to order the defendants to produce them would be not only giving production to the parties who were asking for production, but giving them a clue to the advice which had been given by the solicitor, and giving them the benefit of the professional opinion which had been formed by the solicitor and those who had acted in a professional capacity for the defendant. In my opinion, therefore, in this case, without saying what ought to be done if there were any different case made before the Court with regard to documents like these, it would not be in accordance with the rules which have guided this Court in deciding what is professional privilege in regard to the production of documents, to order their production.’

Cotton LJ, Bowen LJ
(1884) 27 ChD 1, [1884] UKLawRpCh 102
Commonlii
England and Wales
Cited by:
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Cited – Brown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Cited – Dubai Bank Ltd v Galadari (No 7) ChD 1992
The court approved the proposition that the starting point for the court in addressing the selection of documents for discovery is that the court should accept a solicitor’s affidavit claiming privilege as conclusive ‘unless it can be seen . .
See Also – Lyell v Kennedy HL 1-Aug-1889
The true owner may recover money which was rightfully his from a person to whom the money in question had been wrongly paid by the collector of the money. A fiduciary is one who has undertaken, whether on request or without request, of his own . .
Cited – Imerman v Tchenguiz and Others QBD 16-Nov-2009
The claimant sought an ‘unless order’, saying that the defendant had failed to comply with orders for delivery up of documents. Though the order had been agreed, the defendants said that the documents might be needed for an appeal. The claimants . .

Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 20 January 2022; Ref: scu.180911

KV (Scarring – Medical Evidence): UTIAC 23 May 2014

UTIAC 1. When preparing medico-legal reports doctors should not – and should not feel obliged to – reach conclusions about causation of scarring which go beyond their own clinical expertise.
2. Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring.
3. Where there is a presenting feature of the case that raises self-infliction by proxy (SIBP) as a more than fanciful possibility of the explanation for scarring:-
(i) a medical report adduced on behalf of a claimant will be expected to engage with that issue; it cannot eliminate a priori or routinely the possibility of SIBP; and
(ii) a judicial fact-finder will be expected to address the matter, compatibly with procedural fairness, in deciding whether, on all the evidence, the claimant has discharged the burden of proving that he or she was reasonably likely to have been scarred by torturers against his or her will.
4. A lack of correlation between a claimant’s account and what is revealed by a medical examination of the scarring may enable a medico-legal report to shed some clinical light on the issue of whether SIBP is a real possibility.
5. Whilst the medical literature continues to consider that scarring cannot be dated beyond 6 months from when it was inflicted, there is some medical basis for considering in relation to certain types of cases that its age can be determined up to 2 years.
6. Whilst if best practice is followed medico-legal reports will make a critical evaluation of a claimant’s account of scarring said to have been caused by torture, such reports cannot be equated with an assessment to be undertaken by decision-makers in a legal context in which the burden of proof rests on the claimant and when one of the purposes of questioning is to test a claimant’s evidence so as to decide whether (to the lower standard) it is credible.

Storey, Dawson, Kopieczek UTJJ
[2014] UKUT 230 (IAC)
Bailii
England and Wales
Cited by:
Appeal From – KV (Sri Lanka) v Secretary of State for The Home Department CA 7-Mar-2017
The appellant sought asylum, claiming that he had been tortured as an ally of the Tamil Tigers. His claims had been disbelieved. . .
At UT – KV (Sri Lanka) v Secretary of State for The Home Department SC 6-Mar-2019
The claimant said that he had been tortured in Sri Lanka. The SSHD said the injuries were falsifications, inflicted at the claimant’s request.
Held: KV’s appeal succeeded, and the case was remitted for a fresh determination. The Istanbul . .

Lists of cited by and citing cases may be incomplete.

Immigration, Evidence

Updated: 16 January 2022; Ref: scu.534244

Kennedy v Cordia (Services) Llp: SC 10 Feb 2016

The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which govern the admissibility of skilled evidence:
(i) whether the proposed skilled evidence will assist the court in its task;
(ii) whether the witness has the necessary knowledge and experience;
(iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and
(iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.’

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Toulson, Lord Hodge
[2016] UKSC 6, [2016] WLR(D) 74, [2016] PIQR P9, 2016 GWD 4-97, 2016 SCLR 203, (2016) 149 BMLR 17, [2016] ICR 325, 2016 SLT 209, [2016] 1 WLR 597, 2016 SC (UKSC) 59, UKSC 2014/0247
Bailii, Bailii Summary, WLRD, SC, SC summary
Personal Protective Equipment at Work Regulations 1992, Management of Health and Safety at Work Regulations 1999
Scotland
Citing:
Cited – Gibson v Pollock 1848
The court admitted evidence of practice in dog coursing to determine whether the owner or nominator of a dog was entitled to a prize on its success. . .
Cited – Morton v William Dixon Ltd IHCS 19-Mar-1909
Lord President Dunedin set out the liability of an employer: ‘Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two . .
Cited – Regina v Bonython 1984
(South Australia Supreme Court) The court considered the basis for deciding whether a proposed witness was an expert.
Held: It is for the judge to determine whether a witness is competent to give evidence as an expert and for that purpose . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
At Outer House – Kennedy v Cordia (Services) Llp SCS 7-Aug-2013
Outer House – damages after carer’s fall in snow.
Held: The Outer House found Cordia liable under the PPE Regulations, the Management Regulations, and the common law. Both risk assessments for Cordia had been faulty.
Lord McEwan . .
Approved – Myers v The Queen PC 6-Oct-2015
Bermuda – three appeals against conviction raising similar, although not identical, questions concerning the admissibility and proper ambit of evidence as to the existence and practices of gangs and the defendant’s connections with them.
Held: . .
Cited – Kennedy v Cordia (Services) Llp SCS 19-Sep-2014
The respondent, Mrs Kennedy was working for the reclaimers as a carer. She had been injured walking up a snowy client’s path. The reclaimer appealed against an award for damages after a finding that she should have been provided with grips for her . .
Cited – Davie v Magistrates of Edinburgh 1953
Issues arose in relation to the expert evidence which had been led.
Held: The court rejected a submission that, where no counter evidence on the science in question had been adduced for the pursuer, the Court was bound to accept the . .
Cited – Regina v Turner (Terence) CACD 1974
The defendant appealed against his conviction for murder. He admitted that he had killed his girlfriend with a hammer, but sought to bring psychiatric evidence that he was susceptible to provocation.
Held: The law jealously guards the role of . .
Cited – Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft fur Schadlingsbekampfung mbH 1976
(Supreme Court of South Africa (Appellate Division)) Wessels JA said: ‘[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other . .
Cited – Daubert v Merrell Dow Pharmaceuticals Inc 28-Jun-1993
United States Supreme Court – The court considered the Federal Rules of Evidence in the use of expert or skilled evidence: ‘If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to . .
Cited – Dingley v The Chief Constable, Strathclyde Police 1998
The court was asked whether the development of multiple sclerosis had been caused by physical injury sustained in a motor accident. Medical science was not able to demonstrate the connection between the two, and reliance was placed on . .
Cited – Field and Another v Leeds City Council CA 8-Dec-1999
The parties were involved in a dispute as to repairs on a tenanted property. The court had ordered an independent surveyor’s report. The claimant objected to the use by the defendant of an employee for this purpose, and was involved in their claims . .
Cited – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – Pora v Regina PC 3-Mar-2015
Court of Appeal of New Zealand – the defendant appealed against his conviction (after two trials) for rape and murder. He said that hos confession should not have been admitted, being unreliable, and that evidence should have been admitted that . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Mearns v Smedvig Limited and others SCS 25-Nov-1998
‘A party seeking to lead a witness with purported knowledge or experience outwith generally recognised fields would need to set up by investigation and evidence not only the qualifications and expertise of the individual skilled witness, but the . .
Cited – Main v McAndrew Wormald Ltd 1988
. .
Cited – Regina v Gilfoyle CACD 20-Dec-2000
The evidence of a psychological autopsy was not admissible in court proceedings. The field was not one with sufficiently established evidence of value and standards to allow it properly to be assessed. If it were allowed on behalf of the defence in . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Young v Her Majesty’s Advocate HCJ 15-Nov-2013
The Court refused to admit evidence of ‘case linkage analysis’ because it was the subject of only relatively recent academic research and a methodology which was not yet sufficiently developed that it could be treated as reliable. . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Personal Injury, Evidence

Updated: 10 January 2022; Ref: scu.560126

Peyton v The Governors of St Thomass Hospital: 23 Oct 1828

[1828] EngR 807, (1828) 3 Car and P 363, (1828) 172 ER 457
Commonlii

Agency, Evidence

Updated: 08 January 2022; Ref: scu.323571

Bostock v Bostock: FD 2 Dec 1949

H petitioned for divorce, alleging desertion. W denied the allegation , but cross petitioned on the same basis. He sought to bring in evidence the contents of a discussion between H and W and their respective solicitors.
Held: The evidence was admissible (though the judge applying that evidence found for W).
Although a meeting between the parties to a matrimonial dispute in the presence of a probation officer must be taken to be without prejudice when that meeting has been arranged for the purpose of attempting to effect a reconciliation, an interview between the parties and their respective solicitors with a similar purpose in view is not to be taken to be without prejudice if it is not specifically stated so to be; and evidence of what occurred at such a meeting may accordingly be given notwithstanding objection by one of the parties

Ormerod J
[1950] 1 All ER 25, [1950] P 154, 114 JP 59, 66 TLR 339, 48 LGR 423
England and Wales

Family, Evidence

Updated: 07 January 2022; Ref: scu.670952

Shirley v Jacobs: 4 Jun 1835

Payments to Plaintiff, although not pleaded by Defendant, may be received in evidence in reduction of damages.

[1835] EngR 770, (1835) 2 Bing NC 88, (1835) 132 ER 35
Commonlii
England and Wales

Evidence

Updated: 06 January 2022; Ref: scu.316278

Regina v Isleworth Crown Court ex parte Marland: Admn 28 Oct 1997

A previous conviction of the defendant for a drugs related offence was admissible on a civil application for the forfeiture of cash said to represent the proceeds of drug trafficking under the section 43(1). The court observed that the circumstances in which similar fact evidence would be admitted in a criminal trial were closely circumscribed for the protection of the accused. In civil cases, on the other hand, the rules were less circumscribed because the underlying intention was not to protect one side but to be fair to both sides.

Kennedy LJ and Smith J
[1997] EWHC Admin 931
Drug Trafficking Act 1994 43(1)
England and Wales
Cited by:
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .

Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 03 January 2022; Ref: scu.137876

Bank Mellat v Her Majesty’s Treasury (No 1): SC 19 Jun 2013

Closed Material before Supreme Court

Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it was possible for the Supreme Court to use any such procedure, and if so, how and whether such a procedure should be adopted in this case.
Held: (Majority, Hope, Kerr and Reed LL dissenting) It was possible for the Supreme Court to adopt a closed material procedure on an appeal, and that it was appropriate for such a procedure in this case. The fact that any case might be appealed to the Supreme court implied that it could hear a case based in part on material not disclosed to all parties.
Lord Neuberger PJSC described the principle of open justice as ‘fundamental to the dispensation of justice in a modern, democratic society’ . . ‘However, it has long been accepted that, in rare cases, a court has inherent power to receive evidence and argument in a hearing from which the public and the press are excluded, and that it can even give a judgment which is only available to the parties. Such a course may only be taken (i) if it is strictly necessary to have a private hearing in order to achieve justice between the parties, and, (ii) if the degree of privacy is kept to an absolute minimum – see, for instance A v Independent News and Media Ltd [2010] EWCA Civ 343, [2010] 1 WLR 2262, and JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645. Examples of such cases include litigation where children are involved, where threatened breaches of privacy are being alleged, and where commercially valuable secret information is in issue.’

Lord Neuberger, President, Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Clarke, Lord Dyson, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 38, UKSC 2011/0040, [2013] WLR(D) 244, [2014] AC 700, [2013] 4 All ER 495, [2013] 3 WLR 179, [2013] Lloyds Rep FC 580
Bailii, SC Summary, SC, WLRD, Bailii Summary
Financial Restrictions (Iran) Order 2009, Counter-Terrorism Act 2008, Constitutional Reform Act 2005 40(2)
England and Wales
Citing:
At first instance – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Appeal from – Bank Mellat v HM Treasury CA 13-Jan-2011
Under the 2009 Order, the appellant Bank’s UK operations had been shut down. It appealed against the Order, but the respondent had brought evidence, closed save to the respondent, and the order had been confirmed.
Held: The bank’s appeal . .
Cited – Re D (Minors) (Adoption Reports: Confidentiality) HL 1-Sep-1995
The House considered whether it was right for a tribunal to see and rely upon papers not disclosed to the parties. Lord Mustill said: ‘a first principle of fairness that each party to a judicial process shall have an opportunity to answer by . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Cited – A and Others v The United Kingdom ECHR 19-Feb-2009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
Cited – A and Others v The United Kingdom ECHR 19-Feb-2009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
Cited – Secretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – AT v Secretary of State for The Home Department CA 7-Feb-2012
The claimant challenged a non-derogation control order. . .

Cited by:
See Also – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Cited – JP Whitter (Water Well Engineers) Ltd v Revenue and Customs SC 13-Jun-2018
The taxpayers registration under the Construction Industry Scheme had been withdrawn. The Court was now asked whether HMRC are obliged, or at least entitled, to take into account the impact on the taxpayer’s business of the cancellation of its . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Leading Case

Updated: 31 December 2021; Ref: scu.510914

Building Design Partnership Ltd v Standard Life Assurance Ltd: CA 29 Nov 2021

The use of sampling and extrapolation is not uncommon in the Business and Property Courts (particularly the TCC) as a way of corralling evidence and keeping trials within proportionate limits. The essential proposition is that, if the sampled allegations are found, on the balance of probabilities, to be properly representative of the pool of allegations as a whole, then a detailed investigation into the sample can be extrapolated into a result in respect of the pool.
The issue here is whether, as a matter of principle, a claimant can go one step further and plead its original statement of case on an extrapolated basis, without pleading a detailed case on each of the allegations in the pool. What the claimant (‘Standard Life’) sought to do in Part B of its claim was to make a series of specific allegations against the defendant (‘BDP’) arising out of a detailed investigation of 167 variations, and then extrapolate the results of that investigation across the remaining 3,437 variations, without investigating, much less pleading out, a detailed case in relation to those remaining variations.

Lady Justice Macur,
Lord Justice Coulson,
And,
Lord Justice Birss
[2021] EWCA Civ 1793
Bailii
England and Wales

Evidence

Updated: 30 December 2021; Ref: scu.670130