Category: Litigation Practice

Rahmatullah and Another v The Ministry of Defence and Another: QBD 10 Mar 2020

(Open judgment agreed after hearing using closed material) The claimants in this case are Pakistani nationals both of whom allege that they were captured by British forces in Iraq in February 2004. They contend that they were subsequently handed over to United States’ control and, thereafter, taken to Afghanistan where they were subjected to prolonged detention, torture and mistreatment.
The case against the defendants is based upon three broad categories of allegation:
i. mistreatment by UK personnel upon arrest and before the claimants were transferred to United States’ control;
ii. transfer to United States’ control; and
iii. failures thereafter to intervene to bring the claimants’ detention to an end and/or stop the United States’ authorities from further mistreating them (‘the return claim’)
The claims are strenuously denied.
This hearing considered the issue of disclosure.

Judges:

Turner J

Citations:

[2019] EWHC 3849 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Armed Forces, Human Rights, Litigation Practice, Evidence

Updated: 09 December 2022; Ref: scu.652256

Milne v Open Access Finance Ltd and Another: ChD 12 Mar 2020

Whether the Court has power to make an order under rule 19.6 of the Civil Procedure Rules for a Consumer Credit Act claim relating to a credit agreement or a regulated agreement to continue against representatives of the defendant creditors.

Citations:

[2020] EWHC 1420 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Consumer, Banking, Litigation Practice

Updated: 09 December 2022; Ref: scu.651898

Begley v William Cowlin and Sons Ltd and Others: QBNI 9 Jul 2015

Appeal from refusal of document discovery and against strike out of claim: ‘The appeals raise issues as to the steps that can be taken by an individual and by those advising him, to find out which employer or employers are on balance likely to have exposed the individual to asbestos where the individual is diagnosed as suffering from mesothelioma caused by asbestos exposure.’

Judges:

Stephens J

Citations:

[2015] NIQB 62

Links:

Bailii

Jurisdiction:

Northern Ireland

Litigation Practice

Updated: 09 December 2022; Ref: scu.549867

Skelton and His Tutor v Brown: SCS 11 Jul 1028

Not competent to object against a Party’s title, without a Legal Interest. – What understood to be a Legal Interest.
A haver of writs was ordained to deliver them up to a tutor dative, who had found caution, notwithstanding the defender offered to prove, that there was a tutor nominated in the testament.

Citations:

[1028] Mor 7800

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 09 December 2022; Ref: scu.547664

Standard Bank Plc v Via Mat International Ltd and Another: CA 3 May 2013

Aikens LJ said: ‘Overlong pleadings and written submissions . . which are manufactured by parties and their lawyers have become the bane of commercial litigation in England and Wales.’

Judges:

Moore-Bick, Aikens LJJ, David Richards J

Citations:

[2013] EWCA Civ 490

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Tchenguiz and Others v Thornton UK Llp and Others ComC 20-Feb-2015
The court considered appropriate directions where the pleadings presented by the parties had flouted the pleadings rules set out in the Commercial Court practice guide and exceeded by a considerable way, the maximum length. The claim in esence was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.495181

Derby and Co v Weldon: CA 2 Aug 1988

The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be protected effectively against the misuse of any information so obtained, and 3. That the interests of third parties are protected.

Citations:

Times 02-Aug-1988

Jurisdiction:

England and Wales

Cited by:

See Also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .
See also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .
See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
See Also – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.
See Also – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.449762

Derby and Co v Weldon (No2): CA 2 Jan 1989

The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the courts to adapt their practices to meet the current wiles of those defendants who are prepared to devote as much energy to making themselves immune to the courts’ orders as to resisting the making of such orders on the merits of their case.’

Judges:

Lord Donaldson of Lymington MR

Citations:

[1989] 1 All ER 1002

Jurisdiction:

England and Wales

Citing:

Cited – Ashtiani v Kashi CA 1986
On the grant of a Mareva injunction, the defendant had disclosed assets outside the jurisdiction in bank accounts in Europe. The plaintiff then obtained injunctions relating to those assets. The defendant obtained the discharge of those orders on . .
Cited – Derby and Co v Weldon (No2) ChD 19-Oct-1988
The claimant sought a world-wide Mareva injunction against the assets of the defendant abroad.
Held: The injunction was refused. A Mareva injunction should only operate within the jurisdiction. . .
See also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .
See also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .

Cited by:

See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
See Also – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.
See Also – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.449764

Derby v Weldon (No. 3): ChD 7 Nov 1988

The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said that the defendant held certain assets. Another defendant, to whom over andpound;50m had been paid, had no assets. That disclosure led to the application for a receivership order. Counsel for the defendant against whom the receivership order was sought presented no argument to the court on the question whether receivers should be appointed.
Held: Sir Nicholas Browne-Wilkinson VC appointed receivers in a case where the court had earlier made an asset freezing order, saying: ‘The first question of law, which does not give me much trouble but was very properly referred to by [counsel], is whether a Receiver can be appointed in aid of a Mareva injunction. In my judgment it plainly can be done. If the proper preservation of the assets frozen under the Mareva order requires the introduction of a Receiver to hold certain assets, I can see no reason why such a Receiver should not be appointed as a matter of law.’

Judges:

Sir Nicholas Browne-Wilkinson VC

Citations:

Unreported, 7 November 1988

Jurisdiction:

England and Wales

Citing:

See Also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .

Cited by:

Appeal from – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
Cited – JSC BTA Bank v A CA 19-Oct-2010
The court heard an appeal in private, against the order of Teare J imposing a receivership on the assets of Mr A pending the trial of claims made against him for misappropriations allegedly made by him while he was chairman of the claimant bank in . .
See also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .
See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.
See Also – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.449759

Fraser and others v Oystertec Plc and others: 3 Nov 2009

The court considered the meaning of ‘real’ prospects of success: ‘This does not mean that a party can successfully resist summary judgement by suggesting, like Mr Micawber, that something may turn up to save him, though he does not know what: see per Megarry V-C in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] FSR 298: per Jacob J in World Wide Fund for Nature v. World Wrestling Federation [2002] FSR 504, 515 (‘There must be some reasonable basis… It is not enough that something might turn up out of the blue’). The court must be able to see that the prospect is real, not fanciful. For example, ‘the hope that something may turn up during the cross-examination of a witness at the trial does not suffice. It is of course different if the admissible material available discloses a reasonable prima facie case which the other party will have to answer at the trial’ (per Lord Hobhouse in the Three Rivers case)’.

Judges:

Peter Prescott QC

Citations:

Unreported, 03/11/2009

Statutes:

Civil Procedure Rules 24.2.3

Jurisdiction:

England and Wales

Citing:

See Also – Fraser and others v Oystertec Plc and others PatC 7-Nov-2003
. .
See Also – Fraser, Wong-Fraser, Davidson Tools Limited, Sankey Product Developments Limited v Oystertec Plc, Davidson, Binney, Easyrad Limited ChD 6-Oct-2004
. .

Cited by:

Cited – Gray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.430236

Weldon v Neal: CA 1887

An amendment to pleadings should not be allowed so as to allow a plaintiff to set up a cause of action which would otherwise be barred by the Statutes of Limitation.

Judges:

Lord Esher MR

Citations:

(1887) 19 QBD 394

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 09 December 2022; Ref: scu.415953

Miller v Arrowsmith: 31 May 1837

Notice of a motion to dismiss the bill for want of prosecution must be served on the party’s clerk in court, and not on his solicitor; and if the clerk in court be dead, a new clerk in court must be nominated for the purpose of accepting such service.

Citations:

[1837] EngR 775, (1837) 2 Y and C Ex 563, (1837) 160 ER 520 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 09 December 2022; Ref: scu.313892

Derby and Co Ltd v Weldon: CA 2 Jan 1989

The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were outside the jurisdiction. To meet the court’s concerns about the risk of oppression to the defendant arising from the commencement of proceedings abroad, the plaintiffs offered undertakings including not to seek to enforce the WFO abroad without the permission of the court.
Nicholls LJ considered the circumstances in which a court might give its permission to enforce an order abroad: ‘In the present case the plaintiffs propose that this point should be dealt with by the plaintiffs giving to the English court an undertaking in terms which will preclude them from making any application to a foreign court to enforce the order without first obtaining leave from the English court. This seems to me to be a convenient course. If this undertaking is accepted, and an order is made, it would then be for the judge of the English court to whom any application for such leave might be made to consider, amongst other matters, whether the enforcement of the order in the country or countries for which leave is sought will, under the law of that country, result in the order having a substantially similar effect there to a Mareva restraint order in this country, as distinct from the order having there a more far-reaching effect (such as the assets in the country being attached as a form of security for the plaintiffs’ claims, which is not the object of a Mareva restraint order). On any application for such leave, which normally would be inter partes, the judge can be expected to have before him what we do not have, namely, evidence of the law and practice in the country or countries in which the order is sought to be enforced. The undertaking, I add, is being offered by all the plaintiffs, which include amongst their number English companies whose substance has not been questioned. So the undertaking is a worthwhile one.’
Parker LJ said: ‘There are in essence only three issues: (i) has the plaintiff a good arguable case; (ii) has the plaintiff satisfied the Court that there are assets within and, where an extraterritorial order is sought, without the jurisdiction; and (iii) is there a real risk of dissipation or secretion of assets so as to render any judgment which the plaintiff may obtain nugatory. Such matters should be decided on comparatively brief evidence.’

Judges:

Nicholls LJ, Parker LJ

Citations:

[1990] Ch 48, [1989] 2 WLR 276, (1989) 133 SJ 83, [1989] 1 All ER 469, [1989] 1 Lloyd’s Rep 122

Jurisdiction:

England and Wales

Citing:

Cited – Ashtiani v Kashi CA 1986
On the grant of a Mareva injunction, the defendant had disclosed assets outside the jurisdiction in bank accounts in Europe. The plaintiff then obtained injunctions relating to those assets. The defendant obtained the discharge of those orders on . .
Cited – Republic of Haiti v Duvalier CA 1989
The defendant had fled from Haiti with a large part of that country’s assets while in power. Proceedings were pending in France which gave no jurisdiction to grant a worldwide freezing or disclosure order. He had used a firm of English solicitors as . .
See Also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .
See Also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .
See Also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .

Cited by:

See Also – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Cited – Dadourian Group Int Inc v Simms and others (No 1) CA 11-Apr-2006
The court was asked to consider how it should exercise its discretion to order a world-wide asset freezing order.
Held: It dismissed the appeal in this case, but took the opportunity to provide eight guidelines for the way in which the . .
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.240388

Kiani v Land Rover Ltd Others: CA 28 Jun 2006

Mr Kiani went to work at the Land Rover plant; his dead body was found in a tank in the area in which he worked. He had died of asphyxia. His personal representative sued on the basis that Mr. Kiani had accidentally fallen into the tank; Land Rover suggested that his death was suicide. There were thus two possible explanations. The first instance judge had found suicide to be a less than probable explanation, he found that it occurred as a result of accident because the tank had its hatch left open and that Mr. Kiani had probably gone over to have a look, overbalanced and fallen in.
Held: The appeal was dismissed.
Waller LJ discussed the difficulty arising where two scenarios appeared possible on the facts and said: ‘I do not myself think that it is false logic to reason that where only two possibilities are under consideration both of which seem unlikely, if one seems much less likely than the other, the less likely can be discounted thus making the first likely to have happened on the balance of probabilities.’
Waller LJ said: ‘It seems to me that some of the criticisms made of the recorder are on any view not justified. First it does not seem to me legitimate to say that [certain] evidence established that an accidental fall was ‘impossible’.

. . Second it is not in my view fair to criticise the recorder for not setting out precisely how any accident occurred anymore than it would be fair to say to the defendants that they should show precisely how a deliberate act of suicide would have occurred. As long as accident can be demonstrated to be possible, it is open to a court which has discounted any other possibility to be of the view that accident has been proved on the balance of probabilities. That must be particularly true where a breach of duty, a duty to guard against the very type of injury with which the case is concerned, has been established. Third, I do not myself think that it is false logic to reason that where only two possibilities are under consideration both of which seem unlikely, if one seems much less likely than the other, the less likely can be discounted thus making the first likely to have happened on the balance of probabilities.’

Judges:

Waller, Rix, Richards LJJ

Citations:

[2006] EWCA Civ 880

Links:

Bailii

Statutes:

Workplace (Health, Safety and Welfare) Regulations 1992

Jurisdiction:

England and Wales

Cited by:

Cited – Fosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
Cited – Nulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
Lists of cited by and citing cases may be incomplete.

Health and Safety, Litigation Practice

Updated: 09 December 2022; Ref: scu.242897

Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2): 11 Dec 1978

The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.’ and ‘Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood. . . I would describe that as the cherry picking aspect.’ and ‘The key word here is ‘deploying’. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document’s effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party’s need to give full and frank disclosure, eg on a without notice (ex parte) application.’

Judges:

Mustill J

Citations:

[1981] Comm LR 138

Jurisdiction:

England and Wales

Citing:

Cited – Burnell v British Transport Commission CA 1956
The plaintiff sought damages for personal injury. When his witness was cross-examined on his earlier statement, he agreed he had made the statement. Counsel for the Plaintiff asked to see the whole statement. Counsel for the Defendant objected on . .

Cited by:

Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Cited – Loizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
Cited – Somatra Limited v Sinclair Roche and Temperley (a Firm) etc CA 26-Jul-2000
In an action between clients and their solicitors, the solicitors produced at an interlocutory hearing evidence derived from without prejudice discussions. The claimants applied for disclosure of all such documents, but this was rejected on the . .
Cited – Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd CA 11-Jun-2003
Waller LJ said: ‘To answer the question whether waiver of parts of a privileged communication waives the complete information, it is that dictum of Mustill J., as he then was, which applies. A party is not entitled to cherry pick and a party to whom . .
Cited – Mayne Pharma Pty Ltd Another v Debiopharm Sa and Another PatC 10-Feb-2006
Defendant’s application in patent revocation claims . .
Approved – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Cited – Regina v Secretary of State for Transport ex-parte Factortame and Others CA 1988
The Secretary of State was willing to make legal advice given to him available on the grounds that privilege had been waived, but not advice after a particular cut off date. The claimants were dubious as to whether the privilege had been properly . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 09 December 2022; Ref: scu.240157

Attorney General v British Broadcasting Council: HL 1981

The House had to consider whether a local valuation court was a court for the purposes of the powers of the High Court relating to contempt.
Held: A body, which has a judicial function, was a court, whereas if it has an administrative function, albeit carried out judicially, it would not be a court. Lord Scarman: ‘there is a presumption, albeit rebuttable, that our municipal law will be consistent with our international obligations’
Viscount Dilhorne said: ‘While every court is a tribunal, the converse is not true. There are many tribunals which are not courts, despite the fact that they are charged with dealing with certain matters, and have features in common with courts. The distinction is drawn in this Country between tribunals which are courts and those which are not . . Generally I would say that just because a tribunal has features resembling those of a court, it should not be held to be a court. Tribunals created by or under acts of Parliament are not, as a general rule, courts, unless constituted as such by the act creating them. The only exception to this that I can find is the Lands Tribunal . . Parliament has on occasions enacted that a tribunal shall be a court. When it has refrained from doing so, say in the case of the Lands Tribunal, I am not prepared to hold that a tribunal it has created, no matter how much it resembles a court, is a court . . I think that a distinction has to be drawn between courts which discharge a judicial function and those which discharge administrative ones, between courts of law which form part of the judicial system of the Country on the one had, and courts which are constituted to resolve problems which arise in the course of administration or the government of this Country. In my opinion, a local valuation court comes within the latter category. It discharges functions formerly performed by assessment committees. It has to resolve disputes as to the valuation of hereditaments, while its decisions will affect an occupier’s liability for rates, it does not determine his liability. It is just part of the process of rating.’
Lord Edmund-Davies said: ‘At the end of the day, it has unfortunately to be said that there emerges no sure guide, no unmistakable hallmark by which a ‘court’ or ‘inferior court’ may unerringly be identified. It is largely a matter of impression. My own firm view is that a local valuation court is not such a body. I would add to that, if Parliament had it in mind to bring local valuation courts within the contempt procedure by which the Divisional Court is empowered to protect ‘inferior courts’, it is regrettable that they did not make this clear by legislation, as they have already done in several other Acts of Parliament cited to your Lordships.’

Judges:

Lord Scarman,Lord Edmund-Davies, Viscount Dilhorne

Citations:

[1981] AC 303, [1980] 3 All ER 161, [1980] 3 WLR 109

Jurisdiction:

England and Wales

Cited by:

Cited – AD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .
Cited – Regina v Metcalf, Denton, Foster 26-May-2021
Public Inquiry is not In the Course of Justice
(Crown Court at Manchester) A retired solicitor and two retired police officers faced trial charged with doing acts tending and intended to pervert the course of public justice. They were said to have proposed alterations to statements of police . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Contempt of Court

Updated: 09 December 2022; Ref: scu.238719

Siporex Trade SA v Banque Indosuez: 1986

An instrument was issued by a bank under an obligation in an international trade agreement to provide a performance bond. The instrument was described in correspondence between the parties and the bank as a performance bond.
Held: ‘There is in my judgment no real hardship on the bank in imposing this strict liability to pay. A performance bond is a commercial instrument. No bank is obliged to enter into it unless they wish to and no doubt when they do so, they properly exact commercial terms and protect themselves by suitable cross-indemnities, such as were entered into in the present case.’

Judges:

Hirst J

Citations:

[1986] 2 Lloyd’s Rep 146

Jurisdiction:

England and Wales

Cited by:

Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .
Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice

Updated: 09 December 2022; Ref: scu.225898

Electra Private Equity Partners (a Limited Partnership) and others v KPMG Peat Marwick (a Firm) and others: CA 23 Apr 1999

In interlocutory appeals some relaxation of the strictness of the conditions set down in Ladd v Marshall might be appropriate, according to the nature of the interlocutory hearing and the individual circumstances of the case. That would particularly be so where the battleground or its timing were not of the appellant’s choice.

Citations:

[1999] EWCA Civ 1247, [2001] 1 BCLC 589

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Cited – Sawyer v Atari Interactive Inc CA 2-Mar-2007
The claimant designed games software and complained of infringements by the defendant of licensing agreements by failing to allow audits as required.
Held: The defendant should be allowed to be heard on the standard practices for management of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 09 December 2022; Ref: scu.146162

Abbey National Plc v Clive Travers and Co (a Firm): CA 18 May 1999

The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the privilege without having asked the clients who owned it.
Held: The issue of fraud or impropriety had been raised sufficiently in the pleadings to justify the request for dicslosure.

Judges:

Lord Justice Simon Brown , Lord Justice Auld, Lord Justice Thorpe

Citations:

[1999] EWCA Civ 1426

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Regina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
Cited – Nationwide Building Society v Various Solicitors ChD 20-Jan-1998
Legal professional privilege could be set aside at disclosure where the fraudulent intention of one lay client was thereby shown as against another lender. The right to assert legal professional privilege does not apply to documents which came into . .
Cited – Darlington Building Society and Abbey National Plc v O’Rourke James Scourfield and McCarthy 1990
The plaintiffs sought to amend their claim to add an assertion that the defendant solicitors’ duty of confidentiality was lost by virtue of their clients’ fraudulent intent, and the possible knowledge of the defendant solicitors of that intent. It . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Legal Professions

Updated: 09 December 2022; Ref: scu.146341

Bokhari and Another v Mayne Nickless UK Limited: CA 27 May 1999

Where parties to county court proceedings are agreed as to the terms on which proceedings in the Court of Appeal Civil Division can be disposed of and require an order of the court to put those terms into effect, they lodge with the office a document signed by the parties setting out the terms of the proposed agreed order and a short statement of the matters relied on, justifying the making of the order, the authorities and statutory provisions relied on being quoted.

Citations:

[1999] EWCA Civ 1504

Jurisdiction:

England and Wales

Litigation Practice

Updated: 09 December 2022; Ref: scu.146419

Osborne v Leighton: CA 30 Apr 1999

The defendant being late in filing a defence to the claim for defamation, the claimant entered judgment in default. The defendant sought to have that set aside, and now sought her (substantial) costs.
Held: The entry of judgment had been at fault, since the claim had also included a request for an injunction. Even had it not been it was inevitable that it would be set aside, and the order for costs on an indemnity basis was upheld.

Citations:

[1999] EWCA Civ 1314

Jurisdiction:

England and Wales

Citing:

Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Cited – Morley London Developments Ltd v Rightside Properties Ltd 1973
It is open to a claimant to withdraw part of his claim without notice to the other side in order to take advantage of the administrative procedures provided by Order 19 rule 2 or, for that matter, Order 19 rule 3. But the judgment taken in such . .
Cited – Anson (Trading As Party Planners) v Trump CA 7-Apr-1998
The defendant had asked the claimant to organise a substantial party. The account was more than anticipated, and the defendant refused to pay the full amount claimed. She sought leave to appeal judgment in default. The defendant had filed a defence . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 07 December 2022; Ref: scu.146229

Garner v Stonestreet: CA 29 Apr 1999

A defendant who is unready to present his defence or part of it at the time of trial should understand that the court has the discretionary power to strike out a defence and to enter judgment by default.

Citations:

Times 28-May-1999, [1999] EWCA Civ 1307

Statutes:

County Court Rules 1981 Order 9 Rule 6

Jurisdiction:

England and Wales

Litigation Practice

Updated: 07 December 2022; Ref: scu.146222

Farah and Others v British Airways and Another: CA 6 Dec 1999

The Court was asked whether the Home Office can be liable for the loss caused to immigrants as a result of an immigration liaison officer negligently and wrongly advising an airline that the immigrants did not have the required documentation to obtain access to this country, if, as a result of this the airline did not fly the immigrants to this country.
It is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact

Judges:

Lord Woolf MR

Citations:

Times 26-Jan-2000, [1999] EWCA Civ 3052

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barrett v London Borough of Enfield HL 17-Jun-1999
The claimant had spent his childhood in foster care, and now claimed damages against a local authority for decisions made and not made during that period. The judge’s decision to strike out the claim had been upheld by the Court of Appeal.

Cited by:

Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
Lists of cited by and citing cases may be incomplete.

Negligence, Immigration, Litigation Practice

Updated: 07 December 2022; Ref: scu.465063

J v V (Disclosure: Offshore Corporations): FD 2003

A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He said: ‘The use of Hildebrand documents in English ancillary relief proceedings is perfectly permissible subject to certain conditions as to early revelation to the party who owns the documents. When that general point is added to the fact that, absent these documents, the picture of the husband’s finances would be even more incomplete in a number of crucial respects than it is anyway, I find [the wife’s] conduct entirely understandable, justified and above criticism. I should not have hesitated to criticise her and her lawyers if I had felt they had over-stepped the mark.’
As to costs, Coleridge J said: ‘If clients ‘duck and weave’ over months or years to avoid coming clean they cannot expect much sympathy when it comes to the question of paying the costs of the enquiry which inevitably follows. And that is so whatever the outcome eventually is and whatever offers have been made before final determination. Applicants cannot be properly and fully advised about the merits of offers by their lawyers unless the disclosure is full . . and frank; all the cards must be put on the table face up at the earliest stage if huge costs bills are to be avoided.’
Coleridge J also commented on the readiness of the courts to deal with overcomplicated financial structures: ‘these sophisticated offshore structures are very familiar nowadays to the judiciary who have to try them. They neither impress, intimidate, nor fool any one. The courts have lived with them for years.’

Judges:

Coleridge J

Citations:

[2004] 1 FLR 1042, [2003] EWHC 3110 (Fam)

Jurisdiction:

England and Wales

Citing:

Cited – Hildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .

Cited by:

Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Cited – Lykiardopulo v Lykiardopulo CA 19-Nov-2010
The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 07 December 2022; Ref: scu.377302

Venture Investment Placement Ltd v Hall: 2005

The parties agreed to mediate their dispute. The agreement contained a confidentiality clause. The court granted an interlocutory injunction to prevent disclosure of matters within the mediation.

Judges:

HH Judge Reid QC

Citations:

[2005] EWHC 1227

Jurisdiction:

England and Wales

Cited by:

Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.269957

Re Clore (deceased) (No. 2): 1984

Citations:

[1984] STC 609

Jurisdiction:

England and Wales

Cited by:

Mentioned – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.268049

Re Lord Cable: 1976

Slade J said: ‘I add one further observation in relation to the evidentiary position. American Cyanamid Co. v. Ethicon Ltd. may have led prospective plaintiffs to the belief, perhaps partially justified, that it is not necessary for them to adduce affidavit evidence in support of a motion for an interlocutory injunction of such a precise and compelling nature as might have been required before that decision. Nevertheless, in my judgment it is still necessary for any plaintiff who is seeking interlocutory relief to adduce sufficiently precise factual evidence to satisfy the court that he has a real prospect of succeeding in his claim for a permanent injunction at the trial. If the facts adduced by him in support of his motion do not by themselves suffice to satisfy the court as to this, he cannot in my judgment expect it to assist him by inventing hypotheses of fact on which he might have a real prospect of success.’

Judges:

Slade J

Citations:

[1976] 3 All ER 417

Jurisdiction:

England and Wales

Cited by:

Cited – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.252443

Balkanbank v Taher and Others: 19 Feb 1994

Disclosure of legal advice.

Judges:

Clarke J

Citations:

Times 19-Feb-1994

Jurisdiction:

England and Wales

Citing:

Followed – General Accident Fire and Life Assurance Corporation v Tanter (‘The Zephyr’) 1984
When considering the extent to which a court should order partial disclosure of legally privileged advice, the test is one of fairness in the conduct of the trial. It should be left to the trial judge to determine whether a party in the evidence . .

Cited by:

See Also – Balkanbank v Taher and Others (No 2) CA 18-Nov-1994
The plaintiffs had sued in Ireland and obtained a Mareva injunction. That injunction was then first extended to a worldwide injunction, before being set aside. The court could itself to enquire as to damages without deciding whether to enforce the . .
See Also – Balkanbank v Taher and Others (No 3) CA 1-Dec-1994
The court will allow a counterclaim on an undertaking after the action had ceased in other Jurisdiction, and the court had power to award damages arising from a Mareva injunction obtained in Ireland. . .
See Also – Balkanbank v Naser Taher and Others QBD 13-Feb-1995
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.240159

Dadourian Group International Inc and others v Simms and others: ChD 24 Nov 2006

The Claimants sought, principally, damages for fraudulent misrepresentation and conspiracy against the first to fourth Defendants and damages for breach of contract against the third and fourth Defendants.
Ownership and control of a company are in themselves insufficient to dislodge the principle of separate corporate identity. In order to justify lifting the veil of incorporation, ‘special circumstances (must) exist indicating that (the company) is a mere facade concealing the true facts’

Judges:

Warren J

Citations:

[2006] EWHC 2973 (Ch), [2006] ArbLR 18

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dadourian Group Int Inc v Simms and others (No 1) CA 11-Apr-2006
The court was asked to consider how it should exercise its discretion to order a world-wide asset freezing order.
Held: It dismissed the appeal in this case, but took the opportunity to provide eight guidelines for the way in which the . .

Cited by:

Appeal from – Dadourian Group International Inc and others v Simms and others CA 20-Dec-2006
The court considered the exercise by the court of its discretion to release a party who has obtained a freezing order from his undertaking not to use information obtained from the party against whom the freezing order is made in contempt proceedings . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration, Company

Updated: 07 December 2022; Ref: scu.246809

Shelley’s case; Wolfe v Shelley: 1581

If it is possible to do so, every word in a deed must be given effect. A judgment and the process known as recovery were effective even though the defendant had died in the early morning of the day on which, after his death, the court orders were made. The reason given was that ‘the record is to be understood of the whole day, and relates without division to the first instant of the day.’

Judges:

Sir Thomas Bromley, Lord Chancellor

Citations:

(1581) 1 Co Rep 93b

Jurisdiction:

England and Wales

Cited by:

Cited – Van Grutten v Foxwell 1897
It would be dangerous to allow a jury, eight years after the event, to decide that a woman executing a deed had been incompetent to do so when at the time she had been certified competent. It is one thing to put the rule in a nutshell and another to . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.238149

Metzger v Department of Social Security: 1977

A court’s declaration should constitute only what it has found after proper argument.

Judges:

Megarry VC

Citations:

[1977] 3 All ER 444

Jurisdiction:

England and Wales

Cited by:

Cited – Point 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.

Litigation Practice

Updated: 07 December 2022; Ref: scu.237719

Leco Investments (UK) Ltd v Land Pyrometers: CA 1982

The defendant appealed against a striking out of his defence on a claim for copyright infringement.
Held: The appeal succeeded. Leave should have been given. Whether copying was substantial depended in part on quality, which was a matter of degree. The court identified the difficulties in identifying the sorts of evidence which might be admissible in a claim for 3-dimensional copying. Fox LJ said: ‘I am not satisfied that no further evidence is relevant or admissible.’

Judges:

Fox LJ, Stephenson LJ

Citations:

[1982] RPC 133

Jurisdiction:

England and Wales

Cited by:

Cited – Point 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 . .
Cited – Ludlow Music Inc v Williams and others ChD 2-Oct-2000
The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 07 December 2022; Ref: scu.237720

des Gaz SA v Falks Veritas Ltd: CA 1974

The court considered for the first time, the effect of the Rome Treaty. It ‘came about because of a tin can’ .
A question requiring the exercise of a judges discretion is to be determined as at the date that the primary judge gave judgment, not as at the date that the statement of claim was filed, unless a statute changing the law expresses a clear contrary intention.

Judges:

Lord Denning MR

Citations:

[1974] Ch 381, [1974] 3 All ER 51

Statutes:

European Communities Act 1972

Jurisdiction:

England and Wales

Cited by:

Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
Lists of cited by and citing cases may be incomplete.

European, Litigation Practice

Updated: 07 December 2022; Ref: scu.235766

Purdy v Cambran: 17 Dec 1999

It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is – what is to be the scope of that inquiry? . . The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.’

Judges:

May LJ

Citations:

Unreported, 17 December 1999, [2000] CP Rep 67

Statutes:

Civil Procedure Rules

Jurisdiction:

England and Wales

Cited by:

Cited – Asiansky Television Plc and Another v Bayer-Rosin CA 11-Nov-2003
. .
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Asiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.187461

The Sky One: 1988

RSC O.11, r.6(3)) did not provide exclusive methods of service. Service might be effected by private means rather than through the methods set out there, provided always that nothing was done in the country where service was to be effected which was contrary to the law of that country. Under Swiss law it was contrary to serve proceedings privately, and although the court had a discretion to cure the default, it would require a very strong case to exercise the discretion to allow service to stand where it was expressly prohibited.

Judges:

Honhouse J

Citations:

[1988] 1 Lloyds Rep 238

Jurisdiction:

England and Wales

Cited by:

Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.186471

Al Nahkel for Contracting and Trading Ltd v Lowe: 1986

A writ ne exeat regno could be granted when it would have the effect of preserving assets within the jurisdiction.

Citations:

[1986] QB 235

Statutes:

Debtors Act 1869

Jurisdiction:

England and Wales

Cited by:

Distinguished – Ali v Naseem ChD 22-Jul-2003
The claimant sought a writ ne exeat regno against the defendant debtor.
Held: The power given to the tipstaff to arrest a debtor is an elderly remedy, and should only be exercised when the requirements were strictly met, and those requirements . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.186531

Crown Estates Commissioners v Dorset County Council: 1990

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

Judges:

Millett

Citations:

[1990] Ch 297

Jurisdiction:

England and Wales

Cited by:

Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Estoppel

Updated: 07 December 2022; Ref: scu.185411

In re Clay; Clay and Booth: CA 1919

A plaintiff is not entitled to a declaration of non-liability where the defendant has neither asserted a contrary right nor made nor formulated an adverse claim. It is oppressive and unjust to subject a defendant to legal proceedings where he has given no reason to believe that he will assert a claim which is sufficiently formulated to be adjudicated upon: there has to be more than a belief on the part of the claimant that the defendant will probably make a claim in the future.

Citations:

[1919] 1 Ch 66

Jurisdiction:

England and Wales

Cited by:

Cited – L’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 . .
Cited – Point 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.

Litigation Practice

Updated: 07 December 2022; Ref: scu.180660

Patten v Burke Publishing Ltd: ChD 1991

The publisher to whom the plaintiff author had sold the rights to his book became insolvent. He sought a declaration that it would be in breach of the contract.
Held: The guiding principle which determines how the discretion is to be exercised whether to grant declarations is that the Court must do what is necessary to achieve justice. If a contract had been repudiated, and was no longer in effect, a declaration would be the way to achieve fullest justice by making it clear to the plaintiff that he was free of the contract.

Judges:

Millet J

Citations:

[1991] 1 WLR 527

Jurisdiction:

England and Wales

Cited by:

Cited – Financial Services Authority v Rourke ChD 19-Oct-2001
The applicant sought a declaration that the defendant had acted in breach of the Act, in accepting sums by way of deposit, without being authorised, and had made prohibited statements to attract such deposits. Could a civil court make such a finding . .
Cited – L’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 . .
Cited – Point 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.

Contract, Litigation Practice

Updated: 07 December 2022; Ref: scu.180658

Ash v Abdy: 1678

Lord Nottingham took judicial notice of his own experience when introducing a Bill in the House of Lords.

Judges:

Lord Nottingham

Citations:

(1678) 3 Swans 664

Jurisdiction:

England and Wales

Cited by:

Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 December 2022; Ref: scu.180556

Trustor AB v Barclays Bank plc: ChD 16 Nov 2000

The court had failed to stamp an order as to the entitlement to serve it outside the jurisdiction, and the defendant applied for summary dismissal. The court held that although the directions were mandatory, and the court should endorse reasons why leave had been given to serve the document outside the jurisdiction, such a failure was at most an irregularity, and could not justify the court saying the defendant had not been served.

Citations:

Gazette 16-Nov-2000, Times 22-Nov-2000

Statutes:

Civil Procedure Rules 6.19 (3)

Jurisdiction:

England and Wales

International, Litigation Practice

Updated: 07 December 2022; Ref: scu.90011

Les Ambassadeurs Club Ltd v Albluewi (Aka Sheikh Salah Hamdan Albluewi and Mr Salah Hamdan Albelwi): QBD 22 May 2020

Application for discharge of world wide freezing order.

Citations:

[2020] EWHC 1313 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Les Ambassadeurs Club Ltd v Albluewi QBD 28-May-2020
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.651224

Hamilton v Hamilton: SCS 11 Feb 1540

Na exception of iniquitie, nullitie, or uther quhatsumever, may be proponit or alledgit contrare the executioun of an decrete-arbitral lauchfullie gevin: Bot the proponer thairof sould use and alledge the samin be way of actioun gif he pleisis for reduction and retractatioun of the said decrete.

Citations:

[1540] Mor 662

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 06 December 2022; Ref: scu.543980

Practice Note: 2 Jan 1927

Tomlin J set out the appropriate practice on attaching a private schedule to an order made by consent. The schedule records the terms of the settlement agreed between the parties but which terms are not ordered by the court and are not enforceable as a judgment.

Judges:

Tomlin J

Citations:

[1927] WN 290

Jurisdiction:

England and Wales

Citing:

Cited – Dashwood v Dashwood 1-Nov-1927
dashwood_dashwood1927
Tomlin J set out the the practice on making an order such as would keep the proceedings alive only to the extent necessary to enable a party to enforce the terms of the settlement.
Held: A provision in the order which required one party to . .

Cited by:

Cited – Community Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.412284

Lewis v Secretary Of State for Health and Another: QBD 18 Sep 2008

‘whether certain documents relating to deceased patients, including their medical records, should be disclosed to a confidential Inquiry co-sponsored by The Secretary of State for Business, Enterprise and Regulatory Reform and The Secretary of State for Health and, if so, upon what terms.’

Judges:

Mr Justice Foskett

Citations:

[2008] EWHC 2196 (QB), [2008] LS Law Medical 559

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Litigation Practice

Updated: 06 December 2022; Ref: scu.341887

Crouch v Hooper: 1852

Sir John Romilly MR discussed the possibility of a witness being honest but mistaken: ‘it must always be borne in mind . . how extremely prone persons are to believe what they wish. And where persons are once persuaded of the truth of such a fact, as that a particular person was the uncle of their father, it is every day’s experience that their imagination is apt to supply the evidence of that which they believe to be true. It is a matter of frequent observation that persons dwelling for a long time on facts which they believed must have occurred, and trying to remember whether they did so or not, come at least to persuade themselves that they do actually recollect the occurrences of circumstances which at first they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection, and the judging of which and drawing just inferences from which is rendered much more difficult by the circumstance that, in many cases, persons do really, by attentive and careful recollection, recall the memory of facts which had faded away, and were not, when first questioned, present to the mind of the witness. Thus it is, that a clue given or a note made at the time frequently recalls facts which had passed from the memory of the witness . . Once impress the witnesses with [a] belief that . . and further steps follow rapidly enough. In the course of a few years, by constant talk and discussion of the matter, and by endeavouring to remember past conversations, without imputing anything like wilful and corrupt perjury to witnesses of this description, I believe that in 1847 they may conscientiously bring themselves to believe that they remembered conversations and declarations which they had wholly forgotten in 1830, and that they may in truth bona fide believe that they have heard and remembered conversations and observations which in truth never existed, but are the mere offspring of their imaginations.’

Judges:

Sir John Romilly MR

Citations:

1852 16 Beav 182

Jurisdiction:

England and Wales

Cited by:

Cited – Smith v Skanska Construction Services Ltd QBD 29-Jul-2008
The court considered whether the driver of a vehicle involved in a fatal road accident in Thailand was driving within the authority of the UK employers. The driver was not an employee but had authority to use company vehicles for tasks for the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.277725

Imperial Gas Light and Coke Company v Broadbent: HL 4 Aug 1859

If a Plaintiff applies for an injunction in respect of a violation of a common law right, and the existence of that right, or the fact of its violation is denied, he must establish his right at law, but having done that, he is, except under special circumstances, entitled to an injunction to prevent a recurrence of that violation.
For such a purpose the award of an arbitrator is equivalent to a verdict.
If between the time of the case being referred and the award being made there has been an alteration in the mode of carrying on the business complained of, it may, if in diminution of the cause of injury, be shown as an answer to the application for an injunction; but if in increase of the cause of injury, it need not be the subject of a fresh proceeding at law; that is matter for the discretion of the Court of Equity. A Plaintiff brought an action to recover damages for an injury to his business occasioned by the erection. of gas works; the action was referred to arbitration; nearly two years elapsed before the award was made, in the course of which time alteratione in the mode of carrying on the business complained of were effected; two months after the date of the award the injunction was applied for: Held, that there had not been any such. acquiescence as to deprive the Plaintiff of his right to the injunction.

Judges:

Lord Campbell LC

Citations:

[1859] EngR 915, (1859) 7 HLC 600, (1859) 11 ER 239

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal from – Broadbent v The Imperial Gas Company 31-Jan-1857
. .

Cited by:

Cited – Armstrong v Sheppard and Short Ltd CA 1959
The plaintiff had a path at the rear of his property. The defendant constructed a sewer under the path, and asked the plaintiff for permission. He gave it informally, not knowing at the time that he owned the land. The sewer was constructed. Though . .
Cited – Miller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity, Nuisance

Updated: 06 December 2022; Ref: scu.288267

The “Kilmun”: 1988

Although the giving of evidence by way of statements under the Civil Evidence Act 1968 was convenient, ‘it is obvious that it is not a satisfactory way of resolving disputed issues of fact’.

Judges:

Leggatt J

Citations:

[1988] 2 Lloyd’s Rep 1

Statutes:

Civil Evidence Act 1968

Jurisdiction:

England and Wales

Cited by:

Cited – Welsh v Stokes and Another CA 27-Jul-2007
The claimant sued a riding stables after she was badly injured on being thrown from the horse provided. Her claim in negligence failed, but she succeeded under strict liabiilty under the 1971 Act, after the judge relied upon hearsay evidence.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.258436

Crown Prosecution Service v P: Admn 27 Apr 2007

The court made observations about the practice to be followed by counsel and solicitors in the period between their receipt of a judgment in draft form and the date on which it is handed down. CPS officers had distributed a copy of the draft judgment because they felt that it had implications for the law on doli incapax.

Judges:

Smith LJ, Gross J

Citations:

[2007] EWHC 1144 (Admin), [2008] 1 WLR 1024, [2007] 4 All ER 648

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 06 December 2022; Ref: scu.253290

Thomson v Austen: 1823

Evidence of an admitted cross-debt was in part excluded: ‘We also think that the evidence which was refused was not indicative of any intention to make a compromise, for if it had been so, he would have offered some concession, some sacrifice for the sake of peace; but he simply wishes the matter ended, and then makes an unqualified admission’.

Judges:

Bayley J

Citations:

(1823) LJ KB (OS) 99, (1823) 2 Dowl. and Ry. 358

Jurisdiction:

England and Wales

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.243133

Jeyaretnam v Mahmood: 21 May 1992

For the purpose of an application to discharge an order for service on a defendant outside the jurisdiction, the court declined to evaluate allegations of lack of independence or impartiality in the defendant’s home country of Singapore on the grounds that such allegations were not justiciable.

Judges:

Brooke J

Citations:

Times 21-May-1992

Jurisdiction:

England and Wales

Citing:

Cited – Buttes Oil and Gas Co v Hammer (No 3) HL 1982
The House considered a dispute between two Us oil companies about the right to exploit an oil field in the Gulf. Each claimed to have a concession granted by the ruler of a Gulf state. Each state claimed that the oil field was within its territorial . .

Cited by:

Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.244091

Chiron v Organon (No.10): 1995

The position of third parties or the public who may be affected by the proposed injunction may be allowed for by a court in limited circumstances when asked to exercise its discretion to grant even a final injunction.

Citations:

[1995] FSR 235

Jurisdiction:

England and Wales

Cited by:

Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.242615

Hickinbotham v Leach: 1842

To a declaration for words, imputing to the plaintiff, a pawnbroker, that he had committed the unfair and dishonourable practice of duffing, that is, of replenishing or doing up goods, being in his hands in a damaged or worn-out condition, and pledging tbem with other pawnbrokers, the defendant pleaded, that then did replenish and do up divers goods, being in his hands in a damaged or worn out condition, and pledge them with divers other pawnbrokers.
Held: Bad on special demurrer, as not being sufficiently specific. A litigant alleging fraud must let the ‘accused’ know with complete frankness the case he has to meet, and this should be done ‘with the particularity of an indictment’.

Citations:

(1842) 10 MandW 361, [1842] EngR 799, (1842) 152 ER 510

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Lowe v Associated Newspapers Ltd QBD 28-Feb-2006
The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
Held: To claim facts in aid of a defence of fair . .
Cited – Prince Radu of Hohenzollern v Houston and Another (No 4) QBD 4-Mar-2009
Orders were sought to strike out part of the defendants defence of justification to an allegation of defamation.
Held: Where there remains the possibility of a jury trial, it becomes especially important to identify the issues the jurors are . .
Cited – Lord Ashcroft KCMG v Foley and Others QBD 18-Feb-2011
The claimant sought to strike out defences of justification and fair comment saying that the pleadings were unsustainable for lack of clarity.
Held: The pleadings did contain obfuscation, and ‘if there is a viable defence of justification or . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.240319

Mothercare v Robson Books: 1975

When the court has to decide whether there is a serious issue between the parties for the purposes of granting an injunction, what the court had to do was to consider the prospects of success and consider whether they existed either in substance or reality.

Judges:

Megarry VC

Citations:

[1975] FSR 466

Jurisdiction:

England and Wales

Cited by:

Cited – Jewellery Appraisal Services v Belson and others QBD 11-Apr-2005
The defendants had sold a business and included a non-compete covenant. The claimants sought to enforce it against them. It was said that they had approached insurers with a view to commencing business supplying jewelry. The defendants said their . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.231497

Swann v Sowell: 1819

Where a party effectively admits a claim but only subject to his counterclaim which he seeks to set off against the claim, he does not acknowledge the debt for limitation purposes.

Citations:

(1819) 2 B and Ald 759

Jurisdiction:

England and Wales

Litigation Practice, Limitation

Updated: 06 December 2022; Ref: scu.230379

Hughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ): CA 9 Mar 2004

Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the parents could recover. The success of the claim was dependant upon the development of the law in White v Jones.
Held: An application to strike out on this ground should not be granted unless the court is certain that the claim is bound to fail.
Peter Gibson LJ said: ‘I start by considering what is the correct approach on a summary application of the nature of Mr. Richards’s application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out . .’

Judges:

Lord Justice Aldous Lord Justice Peter Gibson Lord Justice Jacob

Citations:

[2004] EWCA Civ 266, [2004] PNLR 35

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Woodward v Wolferstans (A Firm) ChD 20-Mar-1997
The plaintiff purchased a house. Her mortgage was to be guaranteed by her father. The defendant solicitors acted for her and her father, but the father had almost exclusive contact with the firm, and was in practice their princpal client. She said . .

Cited by:

Cited – Walsh v Staines and others ChD 26-Jul-2007
The defendants applied to strike out a claim based on an allegation of a fraudulent deceit and conspiracy in earlier proceedings between the parties. It was said that the defendant solicitors had represented that their client had funds to support an . .
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Cited – AB and Others v Ministry of Defence QBD 5-Jun-2009
Former members of the armed forces and others claimed damages for personal injuries, claiming that they had been obliged to expose themselves to the effects of atomic bomb explosions in the 1950s. The defendant argued that the claims were now out of . .
Cited – Houchin v Lincolnshire Probation Trust QBD 9-Apr-2013
The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found . .
Cited – Boyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 06 December 2022; Ref: scu.194326

Potter v Brown: 1804

Citations:

(1804) 5 East

Jurisdiction:

England and Wales

Cited by:

Cited – Ellis v M’Henry CCP 1871
A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.183534

Lewis v Owen: 1821

Citations:

(1821) 4 B and Ald 654

Jurisdiction:

England and Wales

Cited by:

Cited – Ellis v M’Henry CCP 1871
A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.183537

Phillips v Allan: 1828

Citations:

(1828) 8 B and C 477

Jurisdiction:

England and Wales

Cited by:

Cited – Ellis v M’Henry CCP 1871
A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.183538

Practice Direction (Family Proceedings: Court Bundles): 10 Mar 2000

There should at be lodged with the court a summary of the background to the hearing; a statement of the issue or issues to be determined; a summary of the order or directions sought by each party; a chronology; and skeleton arguments.

Citations:

Times 22-Mar-2000, [2000] 1 WLR 737, [2000] 1 FLR 536

Jurisdiction:

England and Wales

Cited by:

Cited – In R H (A Minor) (Court Bundles: Disallowance of Fees) CA 6-Jun-2000
The court’s practice direction on the provision of bundles and the specification of what the bundles should contain in Family Division cases, a warning to practitioners that they would have little by way of answer to a wasted costs order. The . .
Cited – CF v Secretary of State for the Home Department FD 30-Jan-2004
The court considered the choice or procedures arising in relation to a baby ward of court living with its mother in prison. The sentence to be served would take the child beyond the maximum age provided for in mother and baby units. . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – X and Y, Re Bundles FD 22-Aug-2008
The court considered the continuing failure of parties to follow the requirements as to preparation of court bundles, and particularly in urgent applications: ‘This continuing failure by the professions to comply with their obligations is simply . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2022; Ref: scu.183194

McPhee v Heatherwick: 1 Jul 1976

(Glasgow Sheriff Court) The court asked whether, when a prior action had been disposed of by dismissal, it was or was not always open to a pursuer to raise a new action.
Held: The defender’s plea of res judicata was sustained.

Judges:

Sheriff Macphail

Citations:

1977 SLT (Sh Ct) 46

Jurisdiction:

Scotland

Cited by:

Cited – Mark George Thomson v Michael Coutts ScSf 1-Jun-2001
The pursuer sought damages, and the defender asserted res judicata, in that this was in effect an attempt by the pursuer to recover his damages in instalments. Following an accident, damages had been awarded. The pursuer now sought to recover his . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.181289

Donmar Productions Ltd v Bart (Note): 1967

Citations:

[1967] 1 WLR 740, [1967] 2 All ER 338

Jurisdiction:

England and Wales

Cited by:

Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2022; Ref: scu.181208