Shepherd v Wheeler: ChD 2000

An application was made without notice for the appointment of an alleged creditor under section 116 as administrator of the deceased’s intestate estate.
Held: The court applied the standard principles of an enhanced duty of disclosure in without notice applications in probate actions.

Lawrence Collins QC
[2000] WTLR 1175
Supreme Court Act 1981 116
England and Wales
Citing:
CitedRe Leguia (No. 2) CA 1936
The court revoked a grant of letters of administration with will annexed which had been granted in favour of judgment creditors on the grounds of their non-disclosure.
Lord Wright MR: ‘But the President or probate judge has discretion either to . .

Cited by:
CitedGhafoor and others v Cliff and others ChD 11-Apr-2006
The applicant had obtained revocation of a grant of administration ad colligenda bona in the estate, and having succeeded, now sought costs. The question was whether there had been proper reasons for the application for the grant. The deceased’s . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 27 January 2022; Ref: scu.241553

Chan U Seek v Alvis Vehicles Ltd: ChD 8 May 2003

The claimant appealed a striking out order.
Held: If a claim stood no chance of success, then it should not be allowed to proceed, but where the claim was merely weak it should not be struck out. That would be inconsistent with the needs of justice. Many weak claims later improved, and the summary court should not conduct a mini-trial.

Neuberger J
Times 16-May-2003
England and Wales
Cited by:
See AlsoChan v Alvis Vehicles Ltd and Another ChD 8-Dec-2004
The parties had had a part trial, and settled. The Gardian Newspaper now applied for disclosure of various documents to support a proposed news story. The parties had disputed payment to the claimant of commissions on the sales of military vehicles . .
See AlsoChan U Seek v Alvis Vehicles Ltd ChD 8-Dec-2004
A newspaper, not party to the proceedings, sought access to the Court files, anticipating a significant journalistic story.
Held: Park J allowed the application for copies of certain pleadings and witness statements that had been placed before . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 January 2022; Ref: scu.182365

Pinner v Everett: HL 1969

The House was asked whether or not a person was ‘driving or attempting to drive’ a motor vehicle when he had been stopped by the police in connection with the illumination of his rear number plate, and the driver got out of the car and started to talk to the police and they, smelling alcohol, required him to take a blood test which he refused to do.
Held: No specimen of breath could be required if the suspicion did not arise when the person was driving or attempting to drive even though an extended meaning was given to that expression.
Lord Morris said: ‘In my view, the words ‘person driving’ in . . at least cover and include someone who has been driving but who has temporarily interrupted his driving and is about to resume driving.’ and ‘Thus, if someone intended to park his car in the road outside his home he might drive to a place outside his house and there stop; just before and at that very instant he would be a ‘person driving’ and in general terms he could be described as ‘the driver’. But if, having finished his journey, he stopped his engine and locked his car and went inside his home, he would then have ceased to be a ‘person driving’ although in general terms someone might still describe him as ‘the driver’. Questions of fact and of degree may well arise.’
Lord Reid said:’ In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute.’
and ‘It asks me to choose between two phrases ‘actually driving’ and ‘the driver, neither of which is to be found in the Act. It is in effect substituting ‘the driver’ for the statutory words ‘person driving or attempting to drive’. The two are not the same. A person can often be properly called the driver although for quite a long time he has neither been driving nor attempting to drive.’

Lord Reid, Lord Morris
[1969] 1 WLR 1266, [1969] 3 All ER 257, (1969) 64 Cr App R 160
Road Traffic Act 1968
England and Wales
Cited by:
CitedAitken v Financial Services Compensation Scheme Limited SCS 30-May-2003
. .
CitedMolaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
CitedBritish Pregnancy Advisory Service, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 5-Jun-2019
Abortion Time Limit statement was correct.
The Court considered ‘ the correct interpretation of the words, ‘the pregnancy has not exceeded its twenty-fourth week’ in s.1(1)(a) of the Abortion Act 1967 ‘ The guidance was challenged as the calculations. The date of the beginning of the . .
CitedEdkins v Knowles QBD 1973
The motorist was driving at an excessive and dangerous speed. He was seen by detectives from a police motor car. They followed him but thought that he was driving far too fast and dangerously for them to overtake him. They followed him to a holiday . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Road Traffic

Updated: 27 January 2022; Ref: scu.184319

RE The RBS Rights Issue Litigation: ChD 8 Dec 2016

The court considered three issues arising in the context of RBS’s claim for privilege in respect of two categories of document of which the Claimants now seek specific disclosure and inspection. There is no dispute as to the relevance of the documents in question. Only ‘legal advice privilege’ and ‘lawyers’ working papers privilege’ are claimed.

Hildyard J
[2016] EWHC 3161 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 27 January 2022; Ref: scu.572395

Teva UK Ltd v Boehringer Ingelheim Pharma Gmbh and Co Kg: CA 16 Dec 2016

The Court considered the rights or otherwise of appealing to the Court of Appeal in Patents cases.

Kitchin, Floyd LJJ
[2016] EWCA Civ 1296
Bailii
Civil Procedure Rules 52.3(6)
England and Wales

Litigation Practice, Intellectual Property

Updated: 27 January 2022; Ref: scu.572422

Blue Tropic Ltd and Another v Chkhartishvili: CA 9 Dec 2016

The court was asked whether the trial judge (Peter Smith J) was wrong to grant permission for a late amendment to the claim, pursuant to an application made shortly before the start of the trial. Following the trial, the claim succeeded on the amended basis, but in the light of the judge’s findings of fact and of foreign law would have failed on the basis of the claim as it was pleaded before the amendment.

[2016] EWCA Civ 1259
Bailii
England and Wales

Litigation Practice

Updated: 27 January 2022; Ref: scu.572410

Wyko Group Plc and Others v Cooper Roller Bearings Co Ltd: ChD 4 Dec 1995

A court may not grant a declaratory relief anticipating facts which were not yet in being. There must be in existence of a real question in issue between the parties as to the legal consequences of existing facts. Declaratory relief could not be obtained against a person who had not asserted any right: a party should be allowed to choose his own proceedings at a time and manner of his own choosing and should not be brought into court by the opposing party to resist a claim for a declaration of non-liability.

Ferris J
Times 04-Dec-1995, [1996] FSR 126
England and Wales
Cited by:
CitedL’Oreal (UK) Limited and Another v Johnson and Johnson and Another ChD 7-Mar-2000
The claimant appealed against an order striking out their threat action for trade mark infringement, in respect of the words ‘No Tears’ when used for children’s shampoo.
Held: The court had to consider both the letter and the surrounding . .
CitedPoint Solutions Ltd v Focus Business Solutions Ltd and Another ChD 16-Dec-2005
It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 27 January 2022; Ref: scu.90637

Adepoju v Akinola: ChD 7 Dec 2016

The claimant disputed whether the defendant had been lawfully married to the claimat’s deceased mother, and possible marriage having been polygaous, and without the defendant having divorced his first wife.
Held: Master Matthews set out the approach of the courts to matters of evidence and the burden of proof. Pointing out that: ‘the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to’

[2016] EWHC 3160 (Ch)
Bailii
England and Wales

Litigation Practice, Wills and Probate

Updated: 26 January 2022; Ref: scu.571991

Sands (As Trustee In Bankruptcy) v Layne and Another: CA 29 Nov 2016

The court was asked whether section 375 allowed a court to review, rescind or vary an order which was previously made by that court in exercise of its jurisdiction to hear an appeal from a lower court.

Arden, Lewison, McCombe LJJ
[2016] WLR(D) 632, [2016] EWCA Civ 1159
Bailii, WLRD
Insolvency Act 1986 375(1)
England and Wales

Insolvency, Litigation Practice

Updated: 26 January 2022; Ref: scu.571941

Practice Guidance (Transparency In The Family Courts): FD 16 Jan 2014

The court gave guidance on the new practice in publishing judgments by default, and for arrangements for anonymisation of appropriate parties.

Sir James Munby, President of the Family Division
[2014] EWHC B3 (Fam), [2014] EMLR 22, [2014] 1 FLR 733, [2014] 1 WLR 230, [2014] 2 FCR 226
Bailii
Administration of Justice Act 1960 12
England and Wales
Citing:
See AlsoCommittal for Contempt of Court (Practice Guidance) COP 3-May-2013
The court gave guidance on the practice to be followed on applications for committal for contempt of court in the Court of Protection, particularly as to the requirements for decisions to be made in public. . .
See AlsoPractice Guidance (Transparency In The Court of Protection) CoP 16-Jan-2014
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 26 January 2022; Ref: scu.520129

NCL v MME: QBD 28 Sep 2020

The claimant alleged that the defendant had written and published a book revealing several confidential matters, and requested an injunction requiring is withdrawal. She sought to justify the making of such an order without notice to the defendant.

Lavender J
[2020] EWHC 2594 (QB)
Bailii
England and Wales

Media, Human rights, Litigation Practice

Updated: 26 January 2022; Ref: scu.655134

JSC VTB Bank v Skurikhin and Others: CA 21 Oct 2020

The Court was asked whether, and subject to what qualifications, it is an abuse of process for a party to apply to set aside an interlocutory order on the grounds that there has been a material change of circumstances when the party brought about the change itself.

Lord Justice Phillips
[2020] EWCA Civ 1337
Bailii
England and Wales

Litigation Practice

Updated: 26 January 2022; Ref: scu.655050

Astex Therapeutics Ltd v Astrazeneca Ab: ChD 8 Nov 2016

The parties had agreed to work tgether in the development of new drugs, but came to dispute whether certain projects were subject to the agreement. The claimant sought details of the defendant’s internal documents justifying that conclusion. The defendant then refused access to certain documents asserting legal professional privlege. The claimants now sought an order requiring the defendants to give further details to support the claimed assertion of privilege,
Held: Exceptionally this was a case when further evidence abiut the claim should be provided.

Marsh CM
[2016] EWHC 2759 (Ch)
Bailii
Civil Procedure Rules 31
England and Wales
Citing:
CitedThree 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 . .
CitedWest London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 22-Jul-2008
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 26 January 2022; Ref: scu.571444

Gray v UVW: QBD 21 Oct 2010

Application was made for the name of the defendant not to be published.
Held: To the extent that a claimant seeks an order for the anonymisation of any reports of the SOPO proceedings, then that jurisdiction derives from section 6(1) of the Human Rights Act 1998. However: ‘an order for anonymity and reporting restrictions cannot be made simply because the parties consent: parties cannot waive the rights of the public.’

Tugendhat J
[2010] EWHC 2367 (QB)
Bailii
Human Rights Act 1998 6(1)
England and Wales
Cited by:
CitedJIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
CitedJIH 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, . .
CitedAllen v The Grimsby Telegraph and Another QBD 2-Mar-2011
The claimant sought to prevent publication of his name in the context of the making of a Sexual Offences Prevention Order (SOPO). He had been convicted of offences against sex workers. An order had been made preventing disclosure of his address, but . .
CitedGoldsmith and Another v BCD QBD 22-Mar-2011
The claimants sought damages, alleging that the defendants had hacked into their e-mail accounts. The defendant now sought protection of her identity through anonymisation of the case.
Held: Granted. . .
CitedABC Ltd v Y ChD 6-Dec-2010
There had been proceedings as to the misuse of confidential information. X, a non-party, now sought disclosure of papers used in that case. The case had been settled by means of a Tomlin Schedule, and that, subject to further order, non-parties . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Media

Updated: 26 January 2022; Ref: scu.425387

Chief Constable and Another v YK and Others: FD 6 Oct 2010

The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not needed in this case; ‘there is nothing that a special advocate could do which cannot properly be done by the judge.’. There was a risk of serious harm, and an associated powerful argument for non-disclosure. The purpose of the Act was protective, and an order might properly be made ex parte, and the protective capacity of itself my be sufficient to justify non-disclosure. The court needed to acknowledge the balance between protecting the applicants and giving fair hearings to others affected, and also the need to respect the cultural norms of other societies. The court was asked ‘how is it possible to achieve a fair hearing (i.e. comply with ECHR Article 6) if parts of the evidence which it is necessary for parties to know in order to enable them to meet allegations made against them cannot safely be revealed to them on the ground that disclosure of the information or its source is likely to identify the informant (and thus place him or her at risk)?’ The judge had requested the Attorney General to appoint a special advocate to deal with cl;osed material, but this had been refused.
The approach taken by the Act was wide ranging and robust, and ‘There is, moreover, nothing in the Act to stop the court acting on hearsay evidence, or information provided to it by the police which has not been disclosed to the respondents.’

Sir Nicholas Wall P
[2010] EWHC 2438 (Fam)
Bailii
Forced Marriage (Civil Protection) Act 2007, European Convention on Human Rights 6
England and Wales
Citing:
CitedAM v Local Authority and Another; Re B-M (Care Orders) CA 16-Mar-2009
The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now . .
CitedIn re K FD 2005
. .
CitedIn Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) FD 2004
The court considered an application for a forced marriage protection order.
Held: Singer J said that the court’s inherent jurisdiction is ‘sufficiently flexible . . to evolve in accordance with social needs and social values.’ . .
CitedIn Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
CitedIn Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
CitedRoberts 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: . .
CitedRe 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 . .
CitedRe B (Disclosure to other parties) FD 2001
There was a dispute as to whether one of the fathers involved in the proceedings should have access to certain documents, including psychiatric reports, relating to the mother, her husband and the children. Munby J considered the effect of human . .
CitedSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedMalik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
CitedA Local Authority v A Mother and Others FD 3-Jul-2009
The court considered the limiting of disclosure of evidence in care proceedings where this was thought necessary to protect the safety of witnesses. . .
CitedIn re T (Wardship: Impact of Police Intelligence) FD 2009
The police had obtained intelligence that the imprisoned father of a ward had taken out a contract to murder the child’s mother. As a consequence they took the child and his mother into police protection, which they threatened to withdraw if the . .
CitedSecretary 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 . .
CitedMurungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
ApprovedH v L and R FD 7-Dec-2006
A male litigant in person wished to cross-examine a young adult woman whom he was alleged to have abused sexually when she was a child. The young woman in question was a borderline anorexic and a suicide risk. In criminal proceedings, section 34A of . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Human Rights

Updated: 26 January 2022; Ref: scu.424946

Hussain, Regina (on The Application of) v The Secretary of State for Justice: CA 15 Nov 2016

The claimant appealed against case management decision made in his claim relating to his treatment in prison. In pursuing his case for reclassification, he had requested his personal data from the prison but was dissatisfied with the responses.

Gross, Sales, Simon LJJ
[2016] EWCA Civ 1111, [2016] WLR(D) 605,
Bailii, WLRD
England and Wales

Prisons, Litigation Practice, Information

Updated: 25 January 2022; Ref: scu.571422

Re W (A Child): CA 17 Nov 2016

The court was asked: ‘Can a witness in Family proceedings, who is the subject of adverse judicial findings and criticism, and who asserts that the process in the lower court was so unfair as to amount to a breach of his/her rights to a personal and private life under ECHR Art 8, challenge the judge’s findings on appeal?
If so, on what basis and, if a breach of Article 8 is found, what is the appropriate remedy?’

Munby P FD, McFarlane, Christopher Clarke LJJ
[2016] EWCA Civ 1140, [2016] WLR(D) 628, [2017] 1 FCR 349, [2017] 1 WLR 2415, [2017] 1 FLR 1629
Bailii
Eurppean Convention on Human Rights 8
England and Wales

Litigation Practice, Human Rights

Updated: 25 January 2022; Ref: scu.571425

London Borough of Barking and Dagenham and Another v Persons Unknown and Others: CA 13 Jan 2022

Cases in which local authorities have sought interim and sometimes then final injunctions against unidentified and unknown persons who may in the future set up unauthorised encampments on local authority land. These persons have been collectively described in submissions as ‘newcomers’. The persons concerned fall mainly into three categories, who would describe themselves as Romani Gypsies, Irish Travellers and New Travellers.

Sir Geoffrey Vos, Master of the Rolls

Lord Justice Lewison

And

Lady Justice Elisabeth Laing
[2022] EWCA Civ 13
Bailii
England and Wales

Land, Litigation Practice

Updated: 25 January 2022; Ref: scu.671055

Kazakhstan Kagazy Plc and Others v Zhunus and Others: ComC 29 Sep 2016

Application by the claimants to re-amend the particulars of claim the focus of dispute lies, unusually, not in amendments which the claimants wish to make but in amendments which the claimants do not wish to make to their statement of case. The defendants contend that the claimants’ decision to leave certain claims in the particulars of claim and not to delete those claims comes too late, because the claims have already been discontinued. The claimants deny that they have discontinued the claims. If it is found that the claims have not been discontinued, the defendants renew an application issued much earlier in the proceedings, but which has never been decided, and seek a declaration that the court has no jurisdiction to determine the claims in question because those claims do not raise a serious issue to be tried.

Leggatt J
[2016] EWHC 2363 (Comm), [2016] WLR(D) 516, [2017] 1 WLR 467
Bailii, WLRD
England and Wales

Litigation Practice

Updated: 24 January 2022; Ref: scu.570152

A Local Authority v DG and Others: FD 24 Jan 2014

Keehan J condemned ‘the wholesale failure of the parties’ in these care proceedings to comply with case management directions which had been given on a number of occasions over the previous four months, and said: ‘The conduct of the parties in this matter and the wholesale failure to comply with case management directions is lamentable. Family practitioners must wake up to the fact that, whatever the difficulties presented by public funding issues and/or the pressure of work, the court will no longer tolerate the failure of parties to comply timeously with court orders. Those failures simply lead to unacceptable delays in the proceedings which are wholly inimical to the welfare of the children involved.’

Keehan J
[2014] EWHC 63 (Fam)
Bailii
England and Wales
Cited by:
CitedIn re W (Children) FD 25-Jul-2014
. .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 24 January 2022; Ref: scu.520751

A Council v M and Others (Judgment 3: Reporting Restrictions): FD 20 Jul 2012

Applications were made for the protection of the identity of children and family members ahead of care and criminal proceedings. The order was resisted by several news organisations.
Held: a conclusion that the Art 8 rights of individuals should prevail over the Art 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, although not one that is beyond the contemplation of the courts.

Peter Jackson J
[2012] EWHC 2038 (Fam)
Bailii
European Convention on Human Rights 8 10
England and Wales
Citing:
See AlsoA Council v M and Others (Judgment 1: Fact-Finding) FD 8-Mar-2012
Application for care order in respect of four children. . .
See AlsoA Council v M and Others (Judgment 2: Welfare) FD 17-Jul-2012
. .

Cited by:
CitedH v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice, Human Rights

Updated: 24 January 2022; Ref: scu.509155

Boswell v Coaks (No 2): 1894

An English judgment is impeachable in an English court on the ground that the first judgment was obtained by fraud but only by the production and establishment of evidence newly discovered since the trial and not reasonably discoverable before the trial

(1894) 86 LT 365n
England and Wales
Cited by:
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 24 January 2022; Ref: scu.671569

Shalabayev v JSC BTA Bank: CA 7 Oct 2016

Appeal by Mr Shalabayev against an order by which the judge dismissed Mr Shalabayev’s application to intervene in an application by the respondent, JSC BTA Bank a Kazakhstan bank, for a final charging order over a property.

Jackson, Gloster, King LJJ
[2016] EWCA Civ 987
Bailii
England and Wales

Litigation Practice

Updated: 23 January 2022; Ref: scu.569919

Wave Lending Ltd v Batra and Another: ChD 13 Sep 2016

The claimant had brought proceedings against the two defendants in 2009. A private settlement was reached with the first defendant, but the second, a then bankrupt firm of solicitors took no part. The claimant now sought to restore the claima against the solicitors. It was now said that the claim should be dismissed on the basis that the claimant and the solicitors had acted dishonestly and there were no funds for payment of any damages, insurance cover having been repudiated.
Held: The 2010 Act was not in force at the time of the application.

Marsh, Chief Master
[2016] EWHC 2238 (Ch)
Bailii
Third Party (Rights Against Insurers) Act 2010
England and Wales

Litigation Practice, Legal Professions, Insurance

Updated: 23 January 2022; Ref: scu.569415

Thevarajah v Riordan and Others: ChD 9 Aug 2013

The court was asked first whether the defendants had complied with an unless order made with respect to the disclosure of information required to be provided in aid and in order to ensure the proper release of a freezing order which had previously been made, and second whether, if there was such a failure, the defendants should be afforded relief from that sanction under the jurisdiction conferred by CPR 3.9 (as recently revised).
Held: Relief was refused; sufficient ground for relief from a sanction carefully imposed had not been demonstrated.

Hildyard J
[2013] EWHC 3464 (Ch)
Bailii
Civil Procedure Rules 3.9
England and Wales
Citing:
AppliedTarn Insurance Services Ltd v Kirby and others CA 27-Jan-2009
Claim by company in administration against former directors for excess payments alleged to have been taken by them. There was now alleged a wilful failure to comply wih court orders for disclosure..
Held: Once non-compliance with an unless . .

Cited by:
See AlsoThevarajah v Riordan and Others ChD 10-Oct-2013
The court allowed the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. . .
See AlsoThevarajah v Riordan and Others CA 16-Jan-2014
Defendants appealed against an order allowing the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. The relief sought had previously been refused by Hildyard J, so this was the respondents’ second . .
See AlsoThevarajah and Another v Riordan and Others ChD 21-Mar-2014
The parties disputed the arrangements for the intended acquisition by the Claimant of three properties, or more accurately of all or part of the shares in their owning companies. Following a failure to comply with ‘unless’ orders fr disclsure of . .
See AlsoThevarajah v Riordan and Others CA 4-Feb-2015
The court was asked whether the judge at first instance had been right to attribute an agreement which he had not made to the defendants.
Held: The defendants were liable to pay 2.205 million pounds. . .
See AlsoThevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 January 2022; Ref: scu.569403

Constantin Medien Ag v Ecclestone and Others: ChD 22 Jul 2013

The claimant wished to allege the payment of a bribe by the defendants inducing the sale of a part of its shareholding in the F1 Group, and now sought advanced disclosure of certain documentation.
Held: The application was dismissed as against the first defendant.

Vos J
[2013] EWHC 2674 (Ch)
Bailii

Torts – Other, Litigation Practice

Updated: 23 January 2022; Ref: scu.569402

Biogen Plc v Medeva Plc: HL 31 Oct 1996

The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the antigens of a hepatitis virus was patented with a priority date of 22 December 1978 but was conceded to have been obvious by 21 December 1979.
Held: The claim for a DNA patent was too broad; no new principle was shown, and other means were available of achieving the technical effect claimed. The question of whether an invention was obvious should be treated with appropriate respect by an appellate court, and specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation. Disclosure must enable the invention to be performed to the full extent of the monopoly claimed.
Lord Hoffmann discussed a court of appeal reversing a decision of the first court: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His express findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance (as Renan said, la verite est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’ and ‘Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.’

Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill, Lord Slynn of Hadley, Lord Hoffmann
Times 01-Nov-1996, [1997] RPC 1, [1996] UKHL 18, (1997) 38 BMLR 149
Bailii
Patents Act 1977 1(1) 72(1)
England and Wales
Citing:
Appeal fromBiogen Inc v Medeva Plc CA 28-Nov-1994
The description in a patent application’s specification must be of an invention. . .
CitedAllmanna Svenska Electriska A/B v The Burntisland Shipbuilding Co Ltd 1952
The question whether an the invention was obvious was ‘a kind of jury question’. As such, an appellate court should be reluctant to disturb it. If it was so obvious, the patent was invalid. . .
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
CitedBenmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
CitedAsahi Kasei Kogyo KK’s Application HL 1991
The House considered a case involving the issue of enablement of a particular peptide in a patent application.
Held: On the assumed facts that there had been a prior disclosure of the same invention neither the disclosed information nor common . .

Cited by:
CitedSeb SAa v Societe De’Longhi Spa CA 4-Jul-2003
The claimant’s action for patent infringement had been dismissed on the basis that the patent was invalid for obviousness.
Held: There was material before the judge on which he could properly conclude as he did on the presence of common . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedDesigners Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
CitedPiglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
CitedKirin-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 . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedMehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
CitedHarding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
CitedSherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
CitedParker v Synder, Siddons, Price CA 1-Nov-2005
Application for leave to appeal, and to adduce further evidence. The claim alleged that the defendants had purchased his company for a nominal down payment, but then run the company down.
Held: The appeal against the refusal to admit new . .
CitedRobin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
AppliedAngiotech Pharmaceuticals and Another v Conor Medsystems Inc CA 16-Jan-2007
The appellants challenged a finding that their patent for a vascular stent failed for obviousness.
Held: To overcome a judge’s finding in such a case some error of principle had to be shown. No such error was shown and the appeal failed. . .
CitedPozzoli Spa v BDMO Sa and Another CA 22-Jun-2007
The patentee had invented a method for storing CDs. The patentee sought leave to appeal a finding that its patent was invalid, and if successful, to appeal a finding that the defendant’s apparatus was not infringing.
Held: The application for . .
CitedGaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
CitedSibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
AppliedGenerics (UK) Ltd and others v H Lundbeck A/S (Costs) PatC 27-Jun-2007
The parties disputed the patentability of an anti-depressant drug Citalopram (Prozac).
Held: the claims were invalid for insufficiency. . .
CitedH Lundbeck A/S v Generics (UK) Ltd and others CA 10-Apr-2008
The court heard an appeal against a finding that a patent for a chemical compound was invalid for insufficiency.
Held: The appeal succeeded.
Enough information to ‘work the invention’ meant in order to make the product. . .
CitedGenerics (UK) Ltd and others v H Lundbeck A/S HL 25-Feb-2009
Patent properly granted
The House considered the patentability of a chemical product, citalopram made up of two enantiomers, as opposed to the process of its creation, questioning whether it could be new or was insufficient within the 1977 Act.
Held: The appeal . .
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
CitedCooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
CitedLucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
CitedRegeneron Pharmaceuticals Inc v Kymab Ltd SC 24-Jun-2020
SC Kymab Ltd (‘Kymab’) alleges that the relevant patents are invalid for insufficiency because they did not enable the ordinary skilled person to work the claimed invention across the breadth of the claims. The . .
CitedWarner-Lambert Company Llc v Generics (UK) Ltd (T/A Mylan) and Another SC 14-Nov-2018
These proceedings raise, for the first time in the courts of the United Kingdom, the question how the concepts of sufficiency and infringement are to be applied to a patent relating to a specified medical use of a known pharmaceutical compound. Four . .
CitedActavis Group Ptc EHF and Others v Icos Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Leading Case

Updated: 23 January 2022; Ref: scu.78407

Bessant and others v South Cone Incorporated; in re REEF Trade Mark: CA 28 May 2002

The Reef pop group applied to register ‘REEF’ for Classes 25 and 26 – e.g. T-shirts, badges, etc. South Cone opposed them as registered proprietors of ‘Reef Brazil’ for the footwear which also was included in Class 25. South’s reputation was primarily amongst surfers. The Hearing Officer conducted a ‘multi-factorial’ comparison, and rejected the opposition based on the likelihood of confusion. The appellant challenged mixed findings of fact and law.
Held: The appeal was allowed. When an appeal court considered setting aside a first instance decision, it must look to the several factors affecting the decision as they appeared in each individual case. The opposition had been rejected by the principal officer, then allowed by the judge. The judge should not have reversed the hearing officer on the section 5(2) issue. The hearing officer had not erred in principle, and nor was he clearly wrong. He had to make a multi-factorial comparison, evaluating similarities to reach conclusions about likelihood of confusion and a notional passing-off. He was experienced, and the Civil Procedure Rules do not diminish the respect shown to a hearing officers. But he did not hear oral evidence, and therefore an appellate court should show a real reluctance, but not the very highest degree to interfere in the absence of a distinct and material error of principle.

Lord Justice Robert Walker, Lord Justice Buxton and Lord Justice Clarke
Times 31-May-2002, [2003] RPC 5, [2002] EWCA Civ 763
Bailii
Trade Marks Act 1994 5(2) 5(4)
England and Wales
Citing:
Appeal fromSouth Cone Incorporated v Bessant, Greensmith, House and Stringer (a Partnership) trading as ‘Reef’; REEF Trade Mark ChD 24-Jul-2001
The applicants sought registration of the trade mark ‘Reef’ in connection with merchandising activities in classes 25 and 26 arising from their pop group of the same name. The challengers owned a trade mark ‘Reef Brazil’ in class 25 in relation to . .
CitedMehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .

Cited by:
CitedDyson Limited v The Registrar of Trade Marks ChD 15-May-2003
Applications for trade marks on behalf of the claimant had been rejected. Acquired distinctiveness was a significant issue, and the question of whether the appeal was a review or a rehearing was significant. In this appeal, the parties had given . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedMastercard International Incorporated v Hitachi Credit (Uk) Plc ChD 8-Jul-2004
The claimants challenged award of a trade mark saying they were owners of many marks incorporating the word ‘Master’ associated with credit, and the applicants mark was too similar to its own.
Held: Applying Davidoff, the words can also be . .
CitedSpecial Effects Ltd v L’Oreal Sa and Another CA 12-Jan-2007
The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
Held: It was not . .
EndorsedHachette Filipacchi Presse Sa v S Aprotex International (Proprietary) Ltd ChD 24-Jan-2007
Both parties used the name ‘Elle’ in their respective products, a women’s magazine, and handknitting yarns. They disputed the registration of a trade mark for the latter in the UK.
Held: The court endorsed the continuing applicabiity of the . .
CitedEsure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
CitedMinimax Gmbh and Co Kg v Chubb Fire Ltd PatC 29-Jul-2008
Chubb sought to prevent the registration of a mark by the claimant arguing that its use would amount to passing off as against its own marks.
Held: There was insufficient evidence for the hearing officer to have found that Chubb had maintained . .
CitedWhitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
CitedActavis Group Ptc EHF and Others v Icos Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .
CitedActavis Group Ptc EHF and Others v Icos Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 23 January 2022; Ref: scu.172245

Parker v C S Structured Credit Fund Ltd and another: ChD 12 Feb 2003

The claimant alleged a breach of a share sale agreement, and sought information in advance of discovery.
Held: The court’s power to order information to be provided in anticipation of discovery was not to be used as a fishing expedition. The Gidrxsime case did not establish a free standing right to order disclosure. There must be shown a solid base for the court to exercise its powers. The bringing forward of general discovery would disturb the operation of the Rules.

Gabriel Moss QC
Times 10-Mar-2003, Gazette 17-Apr-2003
Civil Procedure Rules 25.1(1)(g)
England and Wales
Citing:
CitedGidrxsime Shipping Co Ltd v Tantomar Transporters Maritimos Ltd QBD 27-May-1994
The disclosure of papers which are outside the jurisdiction can be ordered within Mareva proceedings, and after judgment. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 22 January 2022; Ref: scu.180080

Woods v Martins Bank Ltd: 1958

If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: ‘In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. The nature of such a business must in each case be a matter of fact . .’ and ‘I find that it was and is within the scope of the Defendant Bank’s business to advise on all financial matters and that as they did advise him they owed a duty to the Plaintiff to advise him with reasonable care and skill.’
Salmon J discussed the duty of the lawyers for a party to make full disclosure: ‘It cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court to make sure, as far as possible, that no relevant documents have been omitted from their client’s list’.
Salmon J discussed the duties of legal advisers: ‘it cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court, to go through the documents disclosed by their client to make sure, as far as possible, that no relevant documents have been omitted from their client’s [list].’

Salmon J
[1958] 3 All ER 166, [1958] 1 WLR 1018, [1959] 1 QB 55
England and Wales
Cited by:
CitedMutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC 16-Nov-1971
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedAl-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
CitedEarles v Barclays Bank plc Merc 8-Oct-2009
earles_barclaysQBD2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .

Lists of cited by and citing cases may be incomplete.

Banking, Negligence, Litigation Practice

Updated: 22 January 2022; Ref: scu.181791

Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd: TCC 26 Aug 2016

The defendant had given notice requiring specific discosure of documents associated with the claimant’s expert report. They complained that only partial disclosure had been given, particularl as to a change of expert.

David Grant HHJ
[2016] EWHC 2171 (TCC)
Bailii

Litigation Practice

Updated: 22 January 2022; Ref: scu.568724

Law v Raleys Solicitors: CA 19 Apr 2016

Renewed application to bring a second appeal against the order of District Judge Pema made on 23rd December 2014 in that he permitted the defendants in the claim to rely upon Facebook and surveillance evidence that was not disclosed prior to the service of witness statements.

Macur LJ
[2016] EWCA Civ 642
Bailii
England and Wales

Litigation Practice

Updated: 22 January 2022; Ref: scu.568600

Barton v Fincham: CA 1921

Where the court lacks jurisdiction, jurisdiction cannot be conferred merely by the consent of the parties. Atkin LJ said: ‘but apart from such an admission the Court cannot give effect to an agreement, whether by way of compromise or otherwise, inconsistent with the provisions of the Act.’

Bankes LJ, Atkin LJ
[1921] 2 KB 291
England and Wales
Cited by:
CitedBroadway Investments Hackney Ltd v Grant CA 20-Dec-2006
The respondent had taken a tenancy of premises from the local authority. The ground floor was for use as a shop, and the first was residential. He had previously taken a licence and had refurbished the premises. The authority sold the freehold to . .
CitedGuangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 22 January 2022; Ref: scu.247622

Wiltshire County Council v Frazer: CA 1984

For a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. The rules require: ‘(1) of the plaintiff that he should have a right to possession of the land in question and claim possession of land which he alleges to be occupied solely by the defendant ;
(2) that the defendant, whom he seeks to evict from his land (the land) should be persons who have entered into or have remained in occupation of it without his licence or consent (or that any predecessor in title of his).’
May LJ said: ‘It seems to me clear beyond a peradventure that no other interpretation of the facts is possible than that these defendants and the other persons unknown are wrongly in occupation of the highway. I think it matters not that each several caravan is at a separate point on the highway’.

Stephenson, May LJJ
(1984) 47 PandCR 69
Rules of the Supreme Court Order 113
England and Wales
Cited by:
CitedManchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
CitedCity of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 22 January 2022; Ref: scu.247617

Lawrie v Raglan: CA 1942

The court considered the obligation on a judge to put a defendant to his election before hearing a submission on whether there was a case to answer. It was unfortunate that the judge had not followed the practice ‘which ought to be followed in such cases, as has been quite clearly laid down in this court, of refusing to rule on the submission unless counsel for the defendant said he was going to call no evidence. That must be regarded as the proper practice to follow.’

Lord Greene MR
[1942] 1 KB 152
England and Wales
Cited by:
CitedNeina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 22 January 2022; Ref: scu.240055

Regina v County of London Quarter Session Appeals Committee ex parte Rossi: CA 1956

A bastardy summons had been served on the defendant but he had not been properly served with a written notice indicating the date of an adjourned hearing. He sought an order for certiorari to quash the decision of the court.
Held: Where there has been no service at all then the subsequent order is irregularly obtained and one to which the defendant is entitled to have set aside as of right. ‘He [that is the clerk of the peace] sent a letter by registered post to Mr Rossi telling him the date, time and the place of the adjourned hearing; but it was returned to him unopened and undelivered. In those circumstances was the Act complied with? Did the clerk of the peace in due course give ‘notice’ to Mr Rossi? It is argued that it is sufficient to comply with section 3 (1) if he sends a registered letter to the respondent, even though it is not received by him, and known not to be received. I do not think this is correct. When construing this section, it is to be remembered that it is a fundamental principal of our law that no one is to be found guilty or be made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. ‘ Denning LJ distinguished between an order regularly made and one which was irregularly made. If it was regularly made then the proper course of complaint was by way of appeal. If it was irregularly made then the proper course was not only by appeal but also by way of prerogative writ. ‘But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing. In short, service had not been effected; and the court should not have entered upon the hearing at all.’ and ‘I would just add this: if the order had been regularly obtained (as the Divisional Court thought), then I would agree that there would be no ground for certiorari and the only remedy of Mr Rossi would be by application to quarter sessions to set aside the order made in his absence and to rehear the appeal.’ and ‘… if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. The order of quarter sessions here was irregular because there was no proper service and it should be set aside.’
Parker LJ said: ‘The section, it will be seen, is in two parts. The first part provides that the dispatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second provides that, unless the contrary is proved, that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play, and only comes into play, in a case where under the legislation to which the section is being applied the document has to be received by a certain time. if in such a case ‘the contrary is proved’, i.e., that is the document was not received by that time or at all, then the position appears to be that, though under the first part of the section the document is deemed to have served, it has been proved that it was not served in time.’

Denning LJ, Morris LJ and Parker LJ
[1956] 1 QB 682, [1956] 1 All ER 670
England and Wales
Cited by:
CitedBeanby Estates Ltd v Egg Stores (Stamford Hill) Ltd ChD 9-May-2003
The landlord had served a notice under the 1954 Act. The tenant served a counter notice, but the question was whether he was late, or out of time.
Held: The combination of the various provisions meant that the landlord’s notice had irrevocably . .
CitedImmigration Advisory Services v Oommen EAT 19-Mar-1997
The claimant had been ordered to pay a deposit as a condition of being allowed to proceed with the claim which the tribunal had judged to have no reasonable prospect of success. The claim was struck out after the tribunal had been wrongly told that . .
CitedGidden v Chief Constable of Humberside Admn 29-Oct-2009
The driver appealed against his conviction for speeding, saying that he had not been given the requisite notice within the 14 days required: ‘The notice of intended prosecution had been sent to him by first class ordinary post in circumstances where . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 22 January 2022; Ref: scu.182412

Attorney General v Chaudry: CA 1971

The court has jurisdiction to grant a civil law remedy by way of injunction in order to enforce the public law, except in cases where statute had expressly or by necessary implication removed the jurisdiction. Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.

Lord Denning MR
[1971] 1 WLR 1614
England and Wales
Cited by:
CitedWrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
CitedCity of London Corporation v Bovis Construction Ltd CA 18-Apr-1988
An injunction had been granted to restrain Bovis from causing a noise nuisance outside certain hours specified in a notice served by the council under the 1974 Act which created a criminal offence ‘without reasonable excuse’ to contravene the . .
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Administrative

Updated: 22 January 2022; Ref: scu.182498

Manchester Corporation v Connolly: CA 1970

The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: ‘The writ of possession was originally a common law writ (although it is now regulated, as I say, by Ord. 45 r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and deliver possession of the land to the plaintiff. ‘

Lord Diplock
[1970] Ch 420
England and Wales
Cited by:
CitedWrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
CitedManchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
CitedSecretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .

Lists of cited by and citing cases may be incomplete.

Planning, Land, Litigation Practice

Updated: 22 January 2022; Ref: scu.182489

Owens Bank Ltd v Bracco and Another (No2): HL 17 Jun 1992

The bank had obtained judgment in St Vincent to recover a loan. It now sought to register the judgment here for enforcement. The defendant wanted to argue that the judgment had been obtained by fraud, and to resist registration of the judgment. The bank said that to raise the objection, the defendant had first to bring new evidence.
Held: Section 9(2)(d) ws intended to reflect the common law position. There was no requirement that the evidence be fresh. ‘Fraud unravels everything’; A judgment obtained by fraud was set aside despite the existence of evidence pre-existing the fraud to support the claim.

Lord Bridge of Harwich
Gazette 17-Jun-1992, [1992] 2 WLR 621, [1992] 2 AC 443
Administration of Justice Act 1920 9(2)(d)
England and Wales
Cited by:
CitedRubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 21 January 2022; Ref: scu.84499

Henderson v Henderson: 20 Jul 1843

Abuse of Process and Re-litigation

The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’

Sir James Wigram VC
(1843) 3 Hare 100, [1843] EngR 917, (1843) 67 ER 313
Commonlii
England and Wales
Cited by:
AppliedWain v Sherwood and Sons Transport Ltd CA 4-Jun-1998
Plaintiff, having succeeded in claim for damage to his car, was subject to an action estoppel, since he could have had the additional claim for personal injury damages settled at the same time. A mistake by his adviser which fell short of being . .
CitedTime Group Limited v Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC 4-Feb-2002
Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of . .
CitedAnsari and Another v Barclays Bank Plc CA 19-Dec-1997
The appellant sought leave to appeal an order striking out their claim against the bank. There had been considerable litigation. They had executed charges supporting personal guarantees, in support of loan agreements in favour of the company of . .
CitedTilly v Hamleys of London Ltd, Essex County Council CA 13-Nov-1998
The claimant had brought an action against the shop. She had been stopped on leaving when a library book caused the anti-theft alarm to go off. She and felt humiliated by the public way she was dealt with. Her claim in negligence had been dismissed, . .
CitedJohnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
ExplainedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedMotorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
CitedThe Sennar (No 2) HL 1985
The Henderson v Henderson principle should only be applied where it is clear (i) that the decision or determination relied on was made by a foreign court of competent jurisdiction and (ii) the decision upon the issue later sought to be raised is a . .
CitedAnyanwu and Another v South Bank Students’ Union South Bank University CA 19-Mar-1999
The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to . .
CitedJ A Pye (Oxford) Limited v South Gloucestershire District Council CA 26-Oct-2000
The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
Held: The appeal to the court . .
CitedBarrow v Bankside Members Agency Limited CA 10-Nov-1995
Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh . .
ApprovedYat Tung Investment Co Ltd v Dao Heng Bank Ltd PC 1975
Restraint of Second Action as Abuse
Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
CitedSweetman v Nathan and others CA 25-Jul-2003
The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: . .
AppliedArnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
CitedCelador Productions Ltd v Melville ChD 21-Oct-2004
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
CitedBlackburn Chemicals Ltd v Bim Kemi Ab CA 10-Nov-2004
The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. . .
CitedBerry v Post Office Investigation Department CA 11-Nov-1996
The claimant’s property was raided twice, and stamps removed. The first search led to charges which were dropped. He sought the return of all the property removed. In later proceedings it was said that a new claim was being made which was res . .
CitedHormel Foods Corporation v Antilles Landscape Investments NV ChD 24-Jan-2005
The claimant had alread challenged the validity of the defendant’s registered trade mark, but sought to do so now on grounds which could have been advanced in the earlier case. The claimant owned the trade mark ‘SPAM’ for canned meats, and the . .
CitedPhipps, Regina v CACD 14-Jan-2005
The appellant had been convicted of driving with excess alcohol. After complaints by the injured victim’s family he was further prosecuted for dangerous driving. He now appealed his conviction, having pleaded guilty when the judge failed to find an . .
CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedDallal v Bank Mellat 1986
Any choice of international law to govern an agreement to arbitrate should be express. . .
CitedCoulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
CitedGanesmoorthy v Ganesmoorthy CA 16-Oct-2002
The parties had divorced. The wife alleged a serious assault against her husband, and instructed a claims firm to recover damages from him. Her ancillary relief claim in the divorce was compromised with her having sought to rely upon the assault, . .
CitedHeffernan and Another v Grangewood Securities Ltd CA 19-Jun-2001
Redemption action. . .
CitedVervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
CitedMcBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
CitedAnyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
CitedMunir v Jang 1989
The doctrine of issue estoppel applies also in Industrial Tribunal cases. . .
CitedDivine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
CitedDimtsu v Westminster City Council EAT 1991
The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . .
CitedCampbell v Leeds United Association Football Misc 3-Apr-2009
The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
Held: The . .
CitedWalbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . .
CitedBotham v The Ministry of Defence QBD 26-Mar-2010
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
CitedBank of Scotland v Hussain and Another ChD 5-Nov-2010
The second defendant had, under the undue influence of the first defendant sold him her house at an undervalue. She also asserted non est factum. He then charged it to the claimant. The court was asked which innocent party should prevail. She said . .
CitedFoster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
MentionedRamzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
CitedPersonal Representatives of Tang Man Sit v Capacious Investments Ltd PC 18-Dec-1995
The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
CitedSarwar v The Royal Bank of Scotland Plc (Rev 1) ChD 27-Jul-2011
The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .
CitedHi-Lite Electrical Ltd v Wolseley UK Ltd QBD 17-Jul-2009
The claimant sought a contribution from the defendant towards its liability for a fire at its premises, as found in earlier proceedings against the now claimant. The defendant had filed a defence merely not admitting, and not denying, responsibility . .
CitedBocacina Ltd v Boca Cafes Ltd IPEC 14-Oct-2013
The claimant alleged passing off by the defendant’s use of the name ‘Boca Bistro Cafe’, and subsequently ‘Bica Bistro Cafe’
Held: Where the defendant had changed its trading style during the proceedings it was possible, if the claimant . .
CitedGladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
CitedJoint Stock Company (Aeroflot-Russian Airlines) v Berezovsky and Another CA 16-Jan-2014
The appellant had judgments obtained in Russia against the respondent. It now appealed against a refusal of enforcement of those judgments based upon the ground that there was a complete defence to the recognition and enforcement of the judgments . .
CitedVirgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
CitedStarlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
CitedDavid T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
CitedMichael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
CitedMichael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
CitedMoorjani and Others v Durban Estates Ltd and Another TCC 15-May-2019
Allegations of breach of landlords’ repairing obligations – defendants’ strike out application.
Held: ‘ the critical question is whether this second action is based on the same cause, or causes, of action, and not whether it pleads the same . .
CitedSpicer v The Commissioner of Police of The Metropolis QBD 7-Jun-2019
The claimant said that he had been wrongly described on the defendant’s website as one of two people guilty of causing death by dangerous driving. He had been found guilty only of a much less serious offence. The court now considered the meanings of . .
CitedSpicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .
CitedWangige, Regina v CACD 14-Oct-2020
Second Prosecution on Same Facts was An Abuse
The defendant appealed his conviction of causing death by dangerous driving. He appealed from the refusal of the judge to give a stay the prosecution as an abuse He had been previously prosecuted for a lesser offence on the same facts.
Held: . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 21 January 2022; Ref: scu.179857

Arnold v National Westminster Bank Plc: HL 1991

Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been unable to challenge his decision on appeal. Later cases threw doubt on his construction. The question was whether the rules governing issue estoppel were subject to exceptions which would permit the matter to be reopened. The landlords issued proceedings on the new understanding. The tenant sought an order striking out the action, claiming an issue estoppel.
Held: Though issue estoppel operated as a complete bar to a subsequent action, some special circumstances existed to allow a subsequent claim where new information came to light. Reasonable diligence in the first action could not have prevented the situation. It did not relate to factual circumstances, but rather an error by the judge, and it would not be just to prevent the second action.
Lord Keith of Kinkel said as to cause of action estoppel: ‘It is appropriate to commence by noticing the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re-opened. The rule in Scotland, which recognises the doctrine of res noviter veniens ad notitiam, is different: see Phosphate Sewage Co. Ltd v Molleson (1879) 4 App. Cas. 801, 814, per Lord Cairns L.C. There is no authority there, however, for the view that a change in the law can constitute res noviter. The principles upon which cause of action estoppel is based are expressed in the maxims nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. Cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action.’ and
and ’cause of action estoppel . . prevents a party from asserting or denying as against the other party, the existence of a particular cause of action, the existence or non-existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given on it, it is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does: he is estopped per rem judicatam.’
As to issue estoppel: ‘Issue estoppel, too, has been extended to cover not only the case where a particular point has been raised and specifically determined in the earlier proceedings, but also that where in the subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier.’
As to whether there were any exceptions: ‘In my opinion your Lordships should affirm it to be the law that there may an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.’
Lord Keith of Kinkel concluded: ‘But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice, have greater force in cause of action estoppel, where the subject matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result, as was observed by Lord Upjohn in the passage which I have quoted above from his speech in the Carl Zeiss case [1967] 1 AC 853, 947.’

Lord Keith of Kinkel, Lord Griffiths, Lord Oliver of Aylemton, Lord Jauncey of Tullichettle
[1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177
England and Wales
Citing:
AppliedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
AppliedMills v Cooper QBD 1967
Two sets of criminal proceedings were brought against the defendant for offences under section 127 of the Highways Act 1959 namely that of being a gypsy and, without lawful excuse, camping on a highway. The first proceedings were brought in respect . .
AppliedProperty and Reversionary Investment Corporation v Templar CA 1977
A party sought leave to appeal out of time in reliance on an intervening decision of the House of Lords.
Held: A change in the understanding of the law would not suffice in the absence of special circumstances. . .

Cited by:
CitedRothschild Asset Management Limited v Ako CA 1-Mar-2002
The applicant had, in earlier proceedings before the Employment Tribunal, withdrawn issues she had raised. She now sought to pursue them, and the respondent asserted that she was estopped from doing so, and that the matter was res judicata. The . .
CitedGood Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
CitedAhsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
CitedMoody and Another v Condor Insurance Ltd and Another ChD 3-Feb-2006
The claimants sought to enforce a deed of guarantee. The defendants argued that the claimant had no entitlement to enforce the deed, not being parties to it, and that they would be able to set aside the deed as against the company whose debts they . .
CitedMeretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
CitedSpecial Effects Ltd v L’Oreal Sa and Another CA 12-Jan-2007
The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
Held: It was not . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedCampbell v Leeds United Association Football Misc 3-Apr-2009
The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
Held: The . .
CitedSpecialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
CitedSchellenberg v British Broadcasting Corporation QBD 2000
The claimant had settled defamation actions against the Guardian and the Sunday Times on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC.
Held: A . .
CitedCoke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC 19-Jan-2011
The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application . .
CitedFoster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
CitedVirgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
CitedMoorjani and Others v Durban Estates Ltd and Another TCC 15-May-2019
Allegations of breach of landlords’ repairing obligations – defendants’ strike out application.
Held: ‘ the critical question is whether this second action is based on the same cause, or causes, of action, and not whether it pleads the same . .
CitedCo-Operative Group v Virk (Valuation Officer) UTLC 22-Oct-2020
Abuse of Process in Rating Alterations
Rating – Alteration of Rating List – validity of proposal challenging alteration to list made by VO to give effect to agreement – application to strike out appeals from the Valuation Tribunal for Wales and Valuation Tribunal for England – res . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Litigation Practice

Updated: 21 January 2022; Ref: scu.180557

Phosphate Sewage Co (Ltd) v Molleson (Peter Lawson and Son’s Trustee): HL 8 Jul 1879

Res judicata – Competent and Omitted – Case of a Claimant in a Sequestration making a Second Claim.
Averments in two successive claims in a sequestration in consequence of which – affirming judgment of Court of Session – the plea of res judicata was sustained, the medium concludendi in the second being similar to that in the first, and the only distinction being that certain new allegations were made which were part of the proof of the fraud founded on in order to the reduction of the contract libelled, and which were likewise in the knowledge of the claimants at the time when their claim was originally stated.

Lord Chancellor (Cairns), Lord Hatherley, Lord Blackburn, and Lord Gordon
[1879] UKHL 822, 16 SLR 822, (1879) 4 AC 801
Bailii
Scotland
Cited by:
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 January 2022; Ref: scu.637968

Owens v Noble: CA 10 Mar 2010

The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach where fraud was alleged was to commence an action to set aside the judgment.
Held: Permission to appeal was granted, the new evidence admitted, the appeal allowed and the matter remitted for rehearing. Where new evidence, which might show that the judge at first instance had been deliberately misled, was admitted at appeal, a new trial should be ordered only if the fraud was admitted or if the evidence was incontrovertible. If neither applied, then the issue of the fraud should be settled before a decision was made on further progress.

Sedley, Smith, Elias LJJ
[2010] EWCA Civ 224, [2010] WLR (D) 73
Bailii, WLRD, Times
England and Wales
Citing:
CitedLadd 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 . .
CitedFlower 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 . .
FollowedJonesco 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 . .
CitedHamilton v Al Fayed CA 21-Dec-2000
The claimant sought an order saying that his counsel had discarded confidential documents which were retrieved from his dustbin by a Mr Pell who then sold them to his opponent who had used them to obtain an unfair advantage.
Lord Phillips MR . .
CitedDe Beauville v Swycher and Co and Another 22-Nov-1999
. .
CitedMulholland v Mitchell HL 1971
The House was asked whether to re-open an assessment of damages where there had been a very marked change in the injured person’s situation shortly after the trial. There was no suggestion of fraud. The Court of Appeal had decided to admit the fresh . .
CitedSkone v Skone and Another HL 1971
The husband appealed, seeking a new trial of a divorce petition following the discovery of fresh evidence consisting of a bundle of love letters from the co-respondent to the wife clearly showing that, contrary to his sworn evidence, he had . .
CitedRoe and Another v Robert McGregor and Sons Ltd; Bills v Roe CA 1968
The plaintiff was driving a van at night. He didn’t see a ‘road closed’ sign erected by the defendant contractors, and proceede down a 30 ft bank injuring himself and his passenger. He said the contractors’ the sign was inadequate and that he had . .
CitedHip 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 . .
CitedSir William Jaffray and others v The Society of Lloyds CA 20-Jun-2007
The appellant sought to re-open a decision of the Court of Appeal saying that fresh evidence had emerged which he said demonstrated that Lloyd’s had misled the court at first instance. . .
InstructiveHamilton v Brodie Brittain Racing Ltd CA 13-Dec-1995
The defendant disputed at trial the authenticity of invoices, but provided no forensic evidence to support his challenge. The trial judge had accepted the invoices as authentic. The defendant subsequently adduced evidence which strongly suggested . .
CitedSohal 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 . .
CitedTaylor 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 by:
Main JudgmentOwens v Noble CA 18-Mar-2010
In its principal judgment the court referred the case back to the judge to assess whether one or more of the parties had committed a fraud on the court. The court now explained its answer to submissions made on the draft judgment.
Held: It was . .
CitedSharland v Sharland CA 10-Feb-2014
Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 21 January 2022; Ref: scu.403316

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 them. The trial judge disbelieved the plaintiff and found for the defendant owner. The plaintiff appealed and was given leave to adduce fresh evidence which alleged fraud against the defendant as regards documents relied upon by him to defeat the second claim. The Court of Appeal had decided that a prima facie case of fraud had been made out and set aside the judgment and ordered a retrial. The defendant appealed.
Held: The correct way to challenge an existing decision of the Court on the basis of fraud was by a new substantive action. The defendant should not lose his favourable judgment without clear evidence of fraud. He should not lose it merely on account of a plausible allegation of fraud. The interest in finality of litigation should hold sway unless and until the judgment is shown to have been obtained by fraud. The fraud was not conceded and the evidence was far from incontrovertible.
Lord Buckmaster said: ‘The fraud charged related to the claim for the price of the two horses alleged to have been sold by the appellant. Were such fraud properly established I agree with the Court of Appeal in holding that the whole judgment would thereby have been vitiated. Fraud is an insidious disease, and if clearly proved to have been used so that it might deceive the court, it spreads and infects the whole body of the judgment. Fraud is an insidious disease and if clearly proved to have been used so that it might deceive the court, it spreads to and infects the whole body of the judgment.’ and
‘The particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.’ and
‘It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be given and that allegation established by the strict proof such a charge requires . . If however for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof are no whit abated and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit, on interlocutory proceedings, hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial.’ ‘

Lord Buckmaster
[1930] AC 298
England and Wales
Citing:
CitedFlower 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 by:
CitedCouwenbergh 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 . .
CitedHamilton 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 . .
CitedCouwenbergh 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 . .
FollowedOwens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
CitedCS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
CitedSharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
CitedMcDonald v McDonald 13-Aug-1965
HCA – Appeal – New Trial – Fresh evidence – Tending to prove verdict obtained by fraud – Principles of grant of new trial on grounds of fraud and discovery of fresh evidence.
the High Court of Australia applied Hip Foong Hong and Jonesco v . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 January 2022; Ref: scu.197974

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, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty and security it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth . . and these are cases where the law insists on finality.’
However: ‘For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time, so the law still more exceptionally allows judgments to be attacked on the ground of fraud.’
Having a particular status in law means ‘the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities.’ (Lord Simon of Glaisdale)

Lord Wilberforce considered the status of legitimacy: ‘There can hardly be anything of greater concern to a person than his status as the legitimate child of his parents: denial of it, or doubts as to it, may affect his reputation, his standing in the world, his admission into a vocation, or a profession, or into social organisations, his succession to property, his succession to a title. It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once and for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question.’

Lord Wilberforce, Lord Simon of Glaisdale
[1977] AC 547
England and Wales
Cited by:
CitedCouwenbergh 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 . .
CitedIn Re R (Parental responsibility: IVF baby); D (A Child), Re HL 12-May-2005
The parents had received IVF treatment together, but had separated before the child was born. The mother resisted an application by the father for a declaration of paternity.
Held: The father’s appeal failed. The Act made statutory provision . .
CitedJ v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
CitedJudge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
CitedAB v CD FD 24-May-2013
The Applicant AB, a lesbian woman aged 37, applied for contact to twin boys, E and F, aged 3. In making that application, she described herself as the boys’ ‘parent’; she ws so defined on the boys’ birth certificates. For the first 17 months of . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Updated: 21 January 2022; Ref: scu.197976

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 suggesting that, on that visit, the defendant had fraudulently concealed a part of the process. The plaintiffs sought to have the appeal reheard in a ‘bill of review’.
Held: The application failed. Applying the 1873 Act, the High Court could exercise the powers formerly conferred on the Court of Chancery and rectify any miscarriage by setting aside the judgment on grounds of fraud. That was the appropriate remedy; reopening the appeal was not.
Lord Justice James made general observations about the proper procedure where a judgment was allegedly obtained by fraud: ‘I agree with what has been said by the Master of the Rolls, that in the case of a decree (or judgment as we now call it) being obtained by fraud there always was a power, and there still is a power, in the Courts of Law in this country to give adequate relief. But that must be done by putting in issue that fraud, and that fraud only. You cannot go to your adversary and say ‘You obtained a judgment by fraud and I will have a re-hearing of the whole case’ until that fraud is established. The thing must be tried as a distinct and positive issue; ‘You, the defendants’ or ‘You, the plaintiff’ obtained that judgment or decree in your favour by fraud; you bribed the witness, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of fraud.’ That would be tried like anything else by evidence properly taken directed at that issue and wholly free from and unembarrassed by any of the matters originally tried.’

Jessell MR, James and Baggallay JJ
[1877] 6 ChD 297, [1877] UKLawRpCh 173
Commonlii
Judicature Act 1873
England and Wales
Cited by:
CitedTaylor 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 . .
CitedJonesco 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 . .
CitedCouwenbergh 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 . .
CitedOwens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
CitedSingh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 21 January 2022; Ref: scu.182177

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 upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined, the motion for a new trial is also an available weapon and in some cases may be more convenient.’ and
‘It is a charge of fraud that is the sole reason supporting the judgment now under appeal. Viewed simply as a matter of procedure, the course taken was irregular. It has long been a settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.’ and
‘A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail.’

Lord Buckmaster, Viscount Dunedin, Blanesburgh, Warrington of Clyffe, and Tomlin LL
[1918] AC 888, [1918] UKPC 65
Bailii
England and Wales
Cited by:
CitedCouwenbergh 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 . .
CitedOwens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .
CitedMcDonald v McDonald 13-Aug-1965
HCA – Appeal – New Trial – Fresh evidence – Tending to prove verdict obtained by fraud – Principles of grant of new trial on grounds of fraud and discovery of fresh evidence.
the High Court of Australia applied Hip Foong Hong and Jonesco v . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 January 2022; Ref: scu.197972

Re Monroe Schneider Associates (Inc) and Barry Lee Schneider v: 31 Jul 1992

Federal Court of Australia – prior to 1875 the Chancery Court had to be somewhat circumspect when asked to rescind a judgment given in a common law court:

[1992] FCA 367, (1992) 109 ALR 137, (1992) 37 FCR 234
Austlii
Australia
Cited by:
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 21 January 2022; Ref: scu.671565

McDonald v McDonald: 13 Aug 1965

HCA – Appeal – New Trial – Fresh evidence – Tending to prove verdict obtained by fraud – Principles of grant of new trial on grounds of fraud and discovery of fresh evidence.
the High Court of Australia applied Hip Foong Hong and Jonesco v Beard and rejected the notion that, to set aside a judgment obtained by fraud, it had to be shown that evidence of the fraud could not have been obtained by reasonable diligence before the trial which led to the judgment sought to be set aside.

Barwick CJ(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) Jj
[1965] HCA 45, (1965) 113 CLR 529
Austlii
England and Wales
Citing:
CitedHip 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 . .
CitedJonesco 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 by:
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 21 January 2022; Ref: scu.671568

Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers and Managers Appointed): 21 Mar 2018

Kiefel Cj, Gageler, Keane, Gordon and Edelman Jj
[2018] HCA 12
Austlii
Australia
Cited by:
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 21 January 2022; Ref: scu.671562

Hodgson v Creation Consumer Finance: ComC 22 Dec 2021

The Claimant sought relief under sections 75 and/or 56 of the Consumer Credit Act 1974 for the alleged misrepresentation of a supplier in selling solar panels to the Claimant. The alleged representation related to the performance of the panels. The Defendant funded the purchase by a debtor-creditor-supplier agreement within the meaning of section 12 of the 1974 Act and hence had a statutory liability for losses caused by any misrepresentation by the supplier.

His Honour Judge Pearce

Sitting as a Judge of the High Court
[2021] EWHC 3515 (Comm)
Bailii
England and Wales

Consumer, Banking, Litigation Practice

Updated: 21 January 2022; Ref: scu.671027

National Bank Trust v Yurov and Others: ComC 28 Jul 2016

The Trust had obtained a without notice freezing order against the defendant. On this the return day, the defendant said that eth Trust had failed to make proper disclosure in obtaining the order, and requested its discharge.
Held: Proper disclosure had not been made. However the freezing order stood.

[2016] EWHC 1913 (Comm)
Bailii
England and Wales

Litigation Practice

Updated: 20 January 2022; Ref: scu.567886

Charlesworth v Relay Roads Ltd and Others: PatC 20 Jul 1999

Application by the defendants for permission to amend their Defence and Counterclaim and Particulars of Objections and to call further evidence to support those amendments in circumstances where, not only has the hearing of the action been completed, but judgment has been handed down, although, crucially, the order has not been drawn up.

Neuberger J
[1999] EWHC 829 (Pat), [2000] RPC 300, [2000] CP Rep 37, [2000] CPLR 109, [2000] 1 WLR 230, [1999] 4 All ER 397
Bailii

Intellectual Property, Litigation Practice

Updated: 20 January 2022; Ref: scu.567878

Glenluce Fishing Company Ltd v Watermota Ltd: TCC 21 Jul 2016

Application by the Claimant to amend the Claim Form to reflect the sums now claimed in the Particulars of Claim. This application is resisted upon the basis that with due diligence the claim now put forward could and should have been recognised in the Claim Form. It is said that that not having happened, an inappropriate fee was paid when the proceedings were commenced, with the consequence that the amendment to introduce a new head of claim outside the limitation period should not be allowed.

Roger ter Haar QC DHCJ
[2016] EWHC 1807 (TCC)
Bailii

Litigation Practice, Limitation

Updated: 20 January 2022; Ref: scu.567834

Bill Kenwright Ltd v Flash Entertainment Fz Llc: QBD 28 Jul 2016

Application by the Defendant, Flash Entertainment FZ LLC, to challenge service of proceedings on it in Abu Dhabi by the Claimant, Bill Kenwright Limited, on the grounds that: (a) it does not have a sufficiently arguable case on the merits; (b) it does not have a sufficiently arguable case on the jurisdictional gateways; (c) forum non conveniens; and (d) various other grounds related to service.

Haddon-Cave J
[2016] EWHC 1951 (QB)
Bailii
England and Wales

Litigation Practice

Updated: 20 January 2022; Ref: scu.567797

IG Index Ltd v Cloete: QBD 21 Dec 2015

Application by the defendant to strike out the claim pursuant to CPR 3.4(2)(b) on the grounds that the proceedings amount to pointless and wasteful litigation, the continuation of which to trial serves no useful purpose for the claimant, squanders the resources of the parties and the public resources of the court, and is contrary to the overriding objective and the principle in Jameel v Dow Jones and Co.

Richard Parkes QC HHJ
[2015] EWHC 3698 (QB)
Bailii
England and Wales
Citing:
See AlsoIG Index Plc v Cloete QBD 11-Dec-2013
The defendant applied to have struck out the claim, saying that it was based upon a misuse of documents disclosed during an employment tribunal case, and was an abuse since the claimants had not sought the permission of the Tribunal for a second use . .
See AlsoIG Index Ltd v Cloete CA 31-Jul-2014
In the course of unfair dismissal proceedings, the defendant had disclosed possession of confidential materials of his former employer. The employer began these proceedings based on the materials. Only at a later point when he appointed solicitors . .

Cited by:
See AlsoIG Index Ltd v Cloete QBD 16-Sep-2016
Order for costs after decision that the action should not be allowed to go to trial. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 January 2022; Ref: scu.557319

IG Index Ltd v Cloete: CA 31 Jul 2014

In the course of unfair dismissal proceedings, the defendant had disclosed possession of confidential materials of his former employer. The employer began these proceedings based on the materials. Only at a later point when he appointed solicitors was a challenge to made to that use as contempt. The company now appealed against the strike out of its claim with costs.
Held: The appeal succeeded. The judge at first instance had failed to take into account powerful factors weighing in favour of granting permission to use the disclosed documents. The provisions of CPR 31.22 applied by implication to documents disclosed in employment tribunal proceedings. Christopher Clarke LJ (with whom Arden LJ and Barling J agreed) stated that the court would not lightly interfere with the judge’s exercise of discretion under that rule.

Areden, Christopher Clarke LJJ, Barling J
[2014] EWCA Civ 1128, [2014] WLR(D) 360
Bailii, WLRD
Civil Procedure Rules 31.22
England and Wales
Citing:
Appeal fromIG Index Plc v Cloete QBD 11-Dec-2013
The defendant applied to have struck out the claim, saying that it was based upon a misuse of documents disclosed during an employment tribunal case, and was an abuse since the claimants had not sought the permission of the Tribunal for a second use . .

Cited by:
CitedTchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .
See AlsoIG Index Ltd v Cloete QBD 21-Dec-2015
Application by the defendant to strike out the claim pursuant to CPR 3.4(2)(b) on the grounds that the proceedings amount to pointless and wasteful litigation, the continuation of which to trial serves no useful purpose for the claimant, squanders . .
See AlsoIG Index Ltd v Cloete QBD 16-Sep-2016
Order for costs after decision that the action should not be allowed to go to trial. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 January 2022; Ref: scu.535450

IG Index Plc v Cloete: QBD 11 Dec 2013

The defendant applied to have struck out the claim, saying that it was based upon a misuse of documents disclosed during an employment tribunal case, and was an abuse since the claimants had not sought the permission of the Tribunal for a second use of disclosed information. The defendant said that the information had been disclosed to the Information Commissioner.

Tugendhat J
[2013] EWHC 3789 (QB)
Bailii
Civil Procedure Rules 31.22(1)
England and Wales
Citing:
CitedCrest Homes Plc v Marks HL 1987
The plaintiffs brought two successive actions against the same defendants (Mr Marks and Wiseoak Homes Ltd) for breach of copyright. They obtained Anton Piller orders in both actions. The documents which the plaintiffs obtained from the defendants in . .
CitedMcBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
CitedSybron Corporation v Barclays Bank plc ChD 1985
Scott J said as regards the undertakings implied on giving discovery of documents during litigation that they applied not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a . .

Cited by:
Appeal fromIG Index Ltd v Cloete CA 31-Jul-2014
In the course of unfair dismissal proceedings, the defendant had disclosed possession of confidential materials of his former employer. The employer began these proceedings based on the materials. Only at a later point when he appointed solicitors . .
See AlsoIG Index Ltd v Cloete QBD 21-Dec-2015
Application by the defendant to strike out the claim pursuant to CPR 3.4(2)(b) on the grounds that the proceedings amount to pointless and wasteful litigation, the continuation of which to trial serves no useful purpose for the claimant, squanders . .
See AlsoIG Index Ltd v Cloete QBD 16-Sep-2016
Order for costs after decision that the action should not be allowed to go to trial. . .

Lists of cited by and citing cases may be incomplete.

Information, Litigation Practice

Updated: 20 January 2022; Ref: scu.518918

Multiplex Construction (Uk) Ltd v Honeywell Control Systems Ltd: TCC 8 Feb 2007

Application for permission to appeal. Jackson J considered whether permission to appeal should have been requested at the hearing: ‘It seems to me that I have got to interpret the provisions of Rule 52.3 and the provisions of the Practice Direction in a manner which is obviously consonant with the intentions of those who drafted these provisions. It will be noted that paragraph 4.3B of the Practice Direction begins with the words ‘Where no application for permission to appeal has been made in accordance with rule 52.3.(2)(a).’ These words seem to me to contemplate a situation in which the original hearing has ended and the losing party has not applied for permission to appeal. One then comes to the following words: ‘but a party requests further time to make such an application, the court may adjourn the hearing to give that party the opportunity to do so.’ It seems to me that when those words are read in context they must confer a power on the court after the end of the hearing at which judgment was given to make an order adjourning that hearing to some other appropriate date in order to hear the application for permission to appeal. Whether or not the court will exercise that jurisdiction is another matter altogether. There must be good reason to do so. There must be good reason for the court to reconvene to hear an application for permission which could perfectly well have been made on the occasion when judgment was handed down. I would have considerable doubts that the court would or possibly could exercise this power after the expiry of the twenty-one day time limit. However, it seems to me that this court does have power under paragraph 4.3B of the Practice Direction and under rule 52.3(2) of the Civil Procedure Rules to hold a continuation of the original hearing in order to deal with an application for permission to appeal in the period shortly following the date when the original judgment was given, provided that the order has not been drawn up.’

Jackson J
[2007] EWHC 236 (TCC)
Bailii
Civil Procedure Rules 52.3
England and Wales
Citing:
See AlsoCleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd TCC 31-Aug-2005
A third party television company sought access to the particulars of claim and other pleadings.
Held: HH Judge Wilcox said: ‘There can be no legitimate distinction drawn between decisions made in interlocutory proceedings and those at final . .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd TCC 5-Jun-2006
. .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another CA 20-Dec-2006
. .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No. 2) TCC 31-Jan-2007
. .

Cited by:
CitedIn re Stanford International Bank Ltd and Others ChD 9-Jul-2009
One of the parties wanted to request permission to appeal, but had not done so at the hearing. The court considered whether it had power to do so at a later hearing.
Held: It did not. The Rules set out a deliberately prescriptive regime which . .
See AlsoMultiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No. 2) TCC 6-Mar-2007
. .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No 3) TCC 12-Mar-2007
. .
See AlsoCleveland Bridge UK Ltd and Another v Multiplex Constructions (UK) Ltd CA 27-Apr-2007
The court construed an agreement supplemental to a construction contract. . .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another CA 21-Dec-2007
. .
See AlsoMultiplex Construction Ltd v Cleveland Bridge Ltd and Another CA 6-Feb-2008
. .
See AlsoMultiplex Construction (Uk) Ltd v Cleveland Bridge UK Ltd and Another TCC 7-Feb-2008
. .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another TCC 19-Mar-2008
. .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another TCC 29-Sep-2008
. .
See AlsoMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another (No 7) TCC 29-Sep-2008
Last stage of the Wembley stadium construction dispute. Jackson J, interpreting Carver said that it set out: ‘how the court ought to approach the matter in circumstances where: (a) one party has made an offer which was nearly but not quite . .
See AlsoCleveland Bridge UK Ltd and Another v Multiplex Constructions (UK) Ltd CA 19-Feb-2010
. .
See AlsoCleveland Bridge Uk Ltd and Another v Multiplex Constructions (UK) Ltd CA 31-Mar-2010
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 January 2022; Ref: scu.249002

Sainsbury’s Supermarkets Ltd v Mastercard Incorporated and Others: ChD 7 Oct 2015

Application by MasterCard providing for disclosure to the Claimant of documents that have been very recently supplied to MasterCard by the European Commission as a result of MasterCard’s right to have access to the Commission’s file, subject to certain safeguards. The documents were supplied in the context of an ongoing competition investigation being carried out by the Commission into what are called inter-regional interchange fees.

Barling J
[2015] EWHC 3400 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 20 January 2022; Ref: scu.567235