Category: Litigation Practice

Gilani v Saddiq and Others: ChD 13 Nov 2018

Claimant’s application pursuant to CPR 31.22 for permission to use documents disclosed by the defendants in this claim as evidence in separate criminal proceedings, namely a private prosecution brought by him against the first and second defendants (‘the Saddiq brothers’) on charges of fraud arising out of some of the same matters as give rise to this civil claim.

Judges:

David Cooke HHJ

Citations:

[2018] EWHC 3084 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 23 June 2022; Ref: scu.628960

Braniff v Holland and Hannen and Cubitts (Southern) Ltd: CA 1969

Widgery LJ said: ‘Again, I think that it would only complicate matters if I attempted to deal with the facts, but one thing is perfectly clear, namely, that in the view of Megaw J. the fact that in certain cases under Order 20 rule 5, amendments were to be permitted although the statutory period had run did not mean that in general there was any relaxation of the principle formerly applying under Weldon v. Neal(4); I respectfully agree with that approach. I find it very difficult to think that, when specific exemption is made in paragraphs (3),(4) and (5) of Order 20 rule 5 in cases where the statute has run, it is then legitimate to interpret the rule as making similar provision available and similar excuses available in cases which are not within the precise terms of those three paragraphs.’

Judges:

Widgery LJ

Citations:

[1969] 1 WLR 1533

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: 23 June 2022; Ref: scu.415956

Elmbridge Borough Council v Sullivan: CA 30 Jun 2005

The council sought to recover alleged overpayment of housing benefit. It claimed that it had served appropriate notice on the defendant. He denied receiving any notice.
Held: The defendant had later received a copy of the notice, but had still not sought to exercise his rights of appeal. The defendant had taken the matter to the ECHR, where it awaited determination, and the matter had been stayed. In reality the compaint was against the decision notice, and the complaint did raise significant questions. Permission to appeal granted.

Citations:

[2005] EWCA Civ 1097

Links:

Bailii

Jurisdiction:

England and Wales

Benefits, Litigation Practice

Updated: 23 June 2022; Ref: scu.229859

Waldman v Mahajan: CA 29 Nov 2002

Refusal of party’s request privately to record court hearings.

Citations:

[2002] EWCA Civ 1839

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Mahajan v Waldman and others (Future restraint) CA 10-Dec-2003
. .
See Also – Mahajan v Waldman and others (Documents) CA 10-Dec-2003
. .

Cited by:

See Also – Mahajan v Waldman and others (Documents) CA 10-Dec-2003
. .
See Also – Mahajan v Waldman and others (Future restraint) CA 10-Dec-2003
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 June 2022; Ref: scu.217873

Camilla Cotton Oil Co v Granadex SA: CA 1975

Judges:

Lord Denning MR

Citations:

[1975] 1 LLR 470

Jurisdiction:

England and Wales

Citing:

Limited – Guarantee Trust Co of New York v Hannay and Co 1915
A negative declaration should be granted by the court only in exceptional circumstances: ‘I think that a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made, but that in practically every . .

Cited by:

Appeal from – Camilla Cotton Oil Co v Granadex SA HL 1976
The jurisdiction to grant a negative declaration was not as confined as suggested by Pickford LJ, but his words ‘warn us that we must apply some careful scrutiny’. . .
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 June 2022; Ref: scu.220700

C M Van Stillevoldt BV v E L Carriers Inc: CA 1983

Practice on applications for leave to appeal out of time. The court allowed an extension where the applicant’s solicitors were 2 weeks late in setting down the appeal. Griffiths LJ cited with approval the approach taken at first instance by the Registrar who said: ‘In my judgment, all relevant factors must be taken into account in deciding how to exercise the discretion to extend time. Those factors include the length of the delay, the reasons for the delay, whether there is an arguable case on appeal, and the degree of prejudice to the defendant if time is extended.’ The exercise of the delegated discretion cannot confine the exercise of the same discretion by the person in whom it is primarily reposed.

Judges:

Griffiths LJ

Citations:

[1983] 1 WLR 207, [1983] 1 All ER 699

Jurisdiction:

England and Wales

Cited by:

Cited – Da Silva and Entwistle v Chief Constable of Greater Manchester Police CA 11-Dec-1997
The plaintiff had commenced an action for assault against the police, but had then let it sleep. The defendant’s application for it to be struck out failed. When the plaintiff applied to set it down, the defendant realising his error sought again a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 June 2022; Ref: scu.198732

In re a Debtor: CA 1936

Lord Wright MR said: ‘Thus while an appellate court is able, and bound, to give effect to new remedies which have been introduced by enactments passed after the order appealed from was made by the court of first instance, yet with regard to substantive rights it is well established that the appellate court must give effect to the same law as that which was in force at the date of the earlier proceeding . . A matter of substantive right which has become res judicata cannot be upset by a subsequent general change of the law, in the absence of precise intention to make the change so retrospective being evidenced in the Act.’

Judges:

Lord Wright MR

Citations:

[1936] Ch 237

Jurisdiction:

England and Wales

Cited by:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 June 2022; Ref: scu.184443

Shtun v Zaljejska: CA 18 Apr 1996

Evidence of prejudice from inexcusable delay is to be examined carefully. It is not essential for a finding of prejudice in such a case that there should be evidence of the particular respects in which potential witnesses’ recollections have been impaired or as to any particular part of the delay to which such impairment is attributable.

Citations:

Times 18-Apr-1996, [1996] 1 WLR 1270

Jurisdiction:

England and Wales

Cited by:

Cited – Smith v Charles Building Services Ltd and Another ChD 22-Apr-2005
The claimant said that his name had been removed from the company register unlawfully. . .
Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 June 2022; Ref: scu.89248

Jeyapragash, Regina (on the Application Of) v Immigration Appeal Tribunal: CA 21 Sep 2004

The parties settled an immigration appeal in the last days before the date set for the hearing.
Held: Parties should bear in mind the new Court of Appeal rules requiring documents to be lodged early, and for settlements to be agreed if possible early so that listing slots should not be lost. Representatives can expect to be called to appear in person before the court to explain themselves and to be penalised in costs for breaches of the rules.

Citations:

[2004] EWCA Civ 1260, Times 12-Oct-2004

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Litigation Practice

Updated: 21 June 2022; Ref: scu.216384

Herbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert BerrySP, Regina (on The Application of) v The Lord Chancellor: HL 1977

The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be permitted to do so, applies also to a distress levied by the Crown under a statutory duty.
Lord Russell said: ‘Finally section 325 cannot avail the liquidator: . . It was suggested that distraint was a form of execution; but Parliament has quite clearly distinguished distress and execution: see section 228 of the 1948 Act’ and ‘So far as concerns section 325 I cannot conceive a more deliberate restriction to two only of methods of proceeding – I use the word in a non-technical sense – against the property of a company.’ S61 TMA 1970 and s319 CA 1948 could quite easily sit together. Section 61 imposes on the collector a statutory duty to distrain. Under section 319(7), a distraint (even if completed by sale) within 3 months of the winding-up order charges the distrained goods or their proceeds of sale with the preferential debts. Subject to that, and the discretion of the court to restrain completion of an uncompleted distress, the distrainor keeps the good distrained. Accordingly, in a voluntary winding-up, the distraint, even if incomplete, was permitted to disturb the pari passu distribution of preferential debts. The distrained assets are not assets of the company available for distribution within sections 302 or 319(5). There was a need for a lis to support an application for an asset freezing injunction. ‘The primary sense of action as a term of legal act is the invocation of the jurisdiction of the court by writ.’

Judges:

Lord Simon of Glaisdale, Lord Russell

Citations:

[1977] 1 WLR 1437, [1977] 1 All ER 161, [1977] UKHL TC – 52 – 113, [1980] AC 562, 53 TC 241, [1979] STC 735, [1979] TR 335, 121 SJ 829

Links:

Bailii

Statutes:

Companies Act 1948 325, Taxes Management Act 1970 61

Jurisdiction:

England and Wales

Citing:

At ChD – Herbert Berry Associates Ltd v Inland Revenue Commissioners ChD 1976
The collector of taxes distrained on the goods of the company under section 61 TMA 1970 for unpaid taxes and the company entered into a walking possession agreement. Before the collector had sold the goods, and completed the distress, the company . .
At CA – Herbert Berry Associates Ltd v Inland Revenue Commissioners CA 2-Jan-1976
The word ‘proceedings’ meant the ‘invocation of the jurisdiction of a court by process other than writ’. . .

Cited by:

Cited – Fourie v Le Roux and Others ChD 30-Sep-2004
Interim asset freezing injunctions had been obtained on the application of a liquidator in South Africa. The defendant applied for their discharge.
Held: They should be discharged. No foreign proceedings had been specified for which they were . .
Cited – Brenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency, Landlord and Tenant, Taxes Management

Updated: 21 June 2022; Ref: scu.216341

Ayobiojo and Another v Easyspace Ltd: CA 29 Jul 2004

Production of falsified divorce petition to support opposition to charging order on former matrimonial home despite transfer to wife.

Citations:

[2004] EWCA Civ 1247

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ayobiojo v Easyspace Ltd and Another CA 4-May-2001
Application for leave to appeal against refusal to grant interim mandatory injunction – no prospect of such order being made on interim basis. . .

Cited by:

See Also – Ayobiojo v Easyspace Ltd and Another CA 4-May-2001
Application for leave to appeal against refusal to grant interim mandatory injunction – no prospect of such order being made on interim basis. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 June 2022; Ref: scu.215977

SA Chanel v Cepeha Handelsmaatschappij Nv: ECJ 3 Jun 1969

Reference for a preliminary ruling: Arrondissementsrechtbank Rotterdam – Netherlands. -Order adjourning

Citations:

R-31/68, [1969] EUECJ R-31/68

Links:

Bailii

Jurisdiction:

European

Cited by:

Adjournment – SA Chanel v Cepeha Handelsmaatschappij Nv ECJ 16-Jun-1970
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 June 2022; Ref: scu.214082

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 should not be relaxed. It should only be used where it was proportionate and necessary.

Judges:

Norris QC, J

Citations:

Times 03-Oct-2003

Statutes:

Debtors Act 1869 6

Jurisdiction:

England and Wales

Citing:

Distinguished – 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. . .
Cited – Allied Arab Bank Ltd v Hajjar 1988
A court refuse a writ ne exeat regno where he purpose was not directly to pursue the main court action, but rather to support an injunction. Instead the court ordered the defendant to surrender his passport which left him at large within the UK, but . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 June 2022; Ref: scu.186530

Zakharov and Others v White and Others: ChD 28 Oct 2003

The defendant challenged a bench warrant issued out of the Chancery Division for his arrest. He said the lack of any written procedure made it non-compliant with his human rights, and a warrant could not be issued without a finding of contempt.
Held: The rules did not make any provision, but nonetheless the court had an inherent jurisdiction to secure compliance with it’s orders. The presence of rule not mentioning such a power did not negate its existence. That a bench warrant was issued in a criminal case in H did not either establish that a finding of contempt was first required in this context.

Judges:

Roderick Evans J

Citations:

Times 13-Nov-2003

Jurisdiction:

England and Wales

Citing:

Cited – In re a solicitor: H v United Kingdom ECHR 1985
. .
Cited – In R B (Minors) (Wardship: Power to Detain) CA 24-May-1994
A wardship court may not order the detention of a person after an arrest without a finding first of contempt. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Updated: 21 June 2022; Ref: scu.188676

Attorney General v Vernazza: HL 1960

Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order and the hearing of the appeal the Act was amended to allow orders to be made prohibiting the institution or continuation of proceedings. On the hearing of the appeal the respondent, the Attorney-General, sought an order that Vernazza be prevented from continuing proceedings as well as instituting them.
Held: The further order was made. The statute book contains many statutes which are not retroactive but alter existing rights and duties – only prospectively, with effect from the date of commencement. Such provisions should not be described as ‘retrospective’.
Statutory provisions dealing with procedural matters will generally be construed so as to apply to proceedings of which the Court was seized at the time the provision came into effect.
Lord Denning said: ‘It is, of course, clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings . . But it is different when the statute is retrospective either because it contains clear words to that effect, or because it deals with matters of procedure only, for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a court of first instance, see Quilter v Mapleson . .’
Viscount Simonds said: ‘By the amending Act a new power was given to the court to enable it to deal with proceedings of which it was seised. The object was both to prevent an abuse of its process and to relieve possible victims of vexatious litigation. I would respectfully doubt whether this could in any view be strictly called retrospective legislation, but, if it has this characteristic . . it is of a procedural nature and . . amply covered by . . authority . .
the Court of Appeal, being entitled and bound to apply the law in force at the time of the appeal, was enabled, if it thought fit, to accede to the application of the Attorney-General . . the Court of Appeal could and should have varied the order of the High Court by adding thereto the order that any legal proceedings instituted by the respondent . . before the making of that order ‘shall not be continued . .”
Lord Morris said: ‘it has to be considered what order ought to have been made by the . . Court if the matter had come before them on . . (the date of the rehearing in the Court of Appeal). I entertain little doubt that the . . Court would . . have made an order in the extended terms that the law then authorised. The real substance of the matter . . would have been whether it was shown that Mr Vernazza had habitually . . instituted vexatious legal proceedings. If that were shown, then the extended procedural power of the court which was made available by the Act . . as a remedial and protective measure . . would properly have been employed.’

Judges:

Viscount Simonds, Lord Denning

Citations:

[1960] AC 965, [1960] 1 QB 197, [1960] 3 All ER 97

Jurisdiction:

England and Wales

Citing:

Appeal from – Attorney-General v Vernazza, In Re Vernazza CA 1959
The respondent to an application to prevent him issuing proceedings without the court’s consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the . .

Cited by:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Appealed to – Attorney-General v Vernazza, In Re Vernazza CA 1959
The respondent to an application to prevent him issuing proceedings without the court’s consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the . .
Cited – HM Attorney General v Pepin Admn 27-May-2004
Civil proceedings order. The defendant had commenced ten sets of proceedings which the court held amounted to serial and repeated litigation of the same points.
Held: The fact that new details had emerged which might throw new light on the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 June 2022; Ref: scu.184432

Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd: HL 1981

Where both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other’s breach as giving him a right to terminate. The Court of Appeal has an inherent power to control its own procedure to stop it being abused. It has a ‘general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice.’ and ‘Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant.’

Judges:

Lord Diplock, Edmund-Davies, Russell of Killowen LL

Citations:

[1981] AC 909, [1981] 1 Lloyds Rep 253

Jurisdiction:

England and Wales

Cited by:

Cited – Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others HL 17-Feb-1993
The court has the power to stay an action which pursued a remedy which was outside the terms of the arbitration agreement determining the dispute. The contract between the parties provided for disputes to be settled by arbitration in Belgium. The . .
Cited – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Cited – Mote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice, Constitutional

Updated: 21 June 2022; Ref: scu.184491

Midland International Trade Services v Al Sudairy: ChD 11 Apr 1990

The court had power to order the payment of interest on a judgment of a court in Saudi Arabia even though a Saudi court would have applied Sharia law. That law follows the teaching in the Koran forbidding the payment or receipt of interest.

Judges:

Hobhouse J

Citations:

Unreported, 11th April 1990

Jurisdiction:

England and Wales

Cited by:

Approved – Kuwait Oil Tanker Company SAK and another v Bader and others 17-Dec-1998
. .
Cited – Knight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 21 June 2022; Ref: scu.185195

Parnall v Hurst and others: ChD 15 May 2003

The court refused an appeal by the defendants from an order refusing to strike out the claim.
Held: Where the court could deal with a matter justly without striking a case out, by possibly imposing a sanction as to costs, it should do so. Here the claimant sought to rely upon a late affidavit. She should be allowed to do so on condition that she be responsible for the costs to date in any event, rather than have her claim struck out.

Judges:

Peter Langan QC

Citations:

Times 10-Jul-2003, Gazette 10-Jul-2003

Jurisdiction:

England and Wales

Citing:

Cited – Biguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 June 2022; Ref: scu.184529

Practice Statement (Admiralty and Commercial Courts: Procedure): ChD 18 Mar 2002

The three rules listed in the Civil Procedure Rules, should also be applied in the Admiralty and Commercial Courts, with effect from March 25 2002. Child marks the change over to the Civil Procedures Rules from the Commercial Court Guide, for much business in those courts, and a new edition of the Guide has been issued. The Guide remains in effect for matters not covered by the Rules and Practice Directions. An electronic version of the Court Guide is available on the Court Service web site.

Citations:

Times 02-Apr-2002

Statutes:

Civil Procedure Rules 58 61 62

Jurisdiction:

England and Wales

Litigation Practice, Civil Procedure Rules

Updated: 21 June 2022; Ref: scu.168114

Gerrard Ltd v Read and Another: ChD 21 Dec 2001

The applicant was party to a consent order, but appealed part of it which he now asserted was unlawful.
Held: It is settled law that a consent order could be varied where the whole order was vitiated because some or all of it was unlawful. Nevertheless in this case the term was not unenforceable, and the order was not to be varied.

Judges:

Justice Blackburn

Citations:

Times 17-Jan-2002, Gazette 27-Feb-2002

Jurisdiction:

England and Wales

Citing:

Cited – Huddersfield Banking Co Ltd v Henry Lister and Son Ltd CA 1895
A consent order, which had been completed and acted upon, but without affecting interests of third parties, was set aside by the Court upon the ground of common mistake of fact.
Kay LJ said: ‘A compromise takes place when there is a question . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Commercial

Updated: 21 June 2022; Ref: scu.167400

Thibierge and Comar Sa v Rexam CFP Limited: ChD 9 Nov 2001

An appeal from the Patents Office relating to an exercise of discretion required that it should be shown that there was error of principle. It has to be shown that the decision maker below exercised his discretion under a mistake of law, or in disregard of principle, or under a misapprehension as to the facts, or that he took into account irrelevant matters or failed to exercise his discretion, or the conclusion which he reached in the exercise of his discretion was ‘outside the generous ambit within which a reasonable disagreement is possible’.

Judges:

Mr Justice Jacob

Citations:

Unreported, 9 November 2001

Jurisdiction:

England and Wales

Cited by:

Cited – Clear Focus Imaging Inc v Contra Vision Limited ChD 16-Nov-2001
The patentee sought to amend its specification.
Held: The court expressed its concern that the appeal had first been listed as an oral hearing, though quite propelry it had now been dealt with on the papers. The court had to be shown some . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 21 June 2022; Ref: scu.166824

Willers v Joyce and Others: ChD 12 Apr 2019

Application to determine the admissibility of evidence on which the applicant executors wish to rely in an application for costs against the respondents under s.51 of the Senior Courts Act 1981. The Contested Material comprises references made in the course of inter-solicitor correspondence marked ‘Without Prejudice Save As to Costs’ to what was said and done in the course of settlement discussions at and shortly after a mediation which were agreed at the time to be ‘Without Prejudice’.

Judges:

Andrews DBE J

Citations:

[2019] EWHC 937 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 21 June 2022; Ref: scu.636140

Schumacher v Clarke: ChD 8 Apr 2019

The court was asked: ‘ first, whether the trial should be dealt with by a judge in the High Court at the level of the Chief Master; and secondly, whether the claim should be tried with witness evidence proved in accordance with the general rule contained in CPR 32.2(1). This general rule is subject to the provisions of CPR 32.2(2) and (3). In parenthesis I remark that, unlike Part 7 claims, Part 8 claims are not generally tried. They are normally dealt with at a disposal hearing, and the default provision is that witnesses are not called to give evidence.’

Judges:

Marsh CM

Citations:

[2019] EWHC 1031 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 21 June 2022; Ref: scu.636153

Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 1): QBD 21 Feb 2019

Defendants’ application pursuant to CPR 3.9 for relief from sanctions, in respect of their non-compliance within Order. The defendants had made an application raising the question of whether the entirety of these slander claims, or aspects of them, should be stayed or struck out on the grounds that the issues raised are not justiciable

Judges:

Warby J

Citations:

[2019] EWHC 341 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2) QBD 21-Feb-2019
The claimant sought relief from sanctions. He had served statement summaries rather than, as ordered, the statements themselves. . .

Cited by:

See Also – Otuo v The Watch Tower Bible And Tract Society of Britain (Non Justiciability and Reply) QBD 21-Feb-2019
The defendants argued that the claims against them were non-justiciable, requiring the court to resolve issues of religious faith, doctrine or practice, which are matters which it is not institutionally competent to do. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Defamation

Updated: 21 June 2022; Ref: scu.634250

Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2): QBD 21 Feb 2019

The claimant sought relief from sanctions. He had served statement summaries rather than, as ordered, the statements themselves.

Judges:

Warby J

Citations:

[2019] EWHC 346 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 1) QBD 21-Feb-2019
Defendants’ application pursuant to CPR 3.9 for relief from sanctions, in respect of their non-compliance within Order. The defendants had made an application raising the question of whether the entirety of these slander claims, or aspects of them, . .
See Also – Otuo v The Watch Tower Bible And Tract Society of Britain (Non Justiciability and Reply) QBD 21-Feb-2019
The defendants argued that the claims against them were non-justiciable, requiring the court to resolve issues of religious faith, doctrine or practice, which are matters which it is not institutionally competent to do. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Defamation

Updated: 21 June 2022; Ref: scu.634249

Finnegan v Cementation Co Ltd: CA 1953

The plaintiff had obtained Letters of Administration in Southern Ireland only but sought to bring an action under the Fatal Accidents Act in England. There were two separate bases upon which the plaintiff (the widow of a workman killed in a work accident) could claim. She could either sue as the representative of his legal estate – that is as administratrix – or alternatively she had a statutory entitlement as the widow of the deceased to sue in her own right. Different combinations of fact had to be pleaded and proved depending upon which cause of action was elected. It is for that reason that the capacity which she sued in was critical.
Held: The action had been brought in a representative capacity which the plaintiff did not possess, and must be set-aside on the ground of incompetence. Singleton LJ lamented ‘that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them’.

Judges:

Singleton LJ

Citations:

[1953] 1 QB 688, [1953] 1 All ER 1130

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.

Litigation Practice

Updated: 21 June 2022; Ref: scu.415962

UBS Wealth Management (UK) Ltd v Vestra Wealth Llp: QBD 4 Aug 2008

The court considered the grant of ‘springboard relief’ and said: ‘In my judgment, springboard relief is not confined to cases where former employees threaten to abuse confidential information acquired during the currency of their employment. It is available to prevent any future or further serious economic loss to a previous employer caused by former staff members taking an unfair advantage, an ‘unfair start’, of any serious breaches of their contract of employment . . That unfair advantage must still exist at the time that the injunction is sought, and it must be shown that it would continue unless restrained. I accept that injunctions are to protect against and to prevent future and further losses and must not be used merely to punish past breaches of contract.’ and
‘There is some discussion in the authorities as to whether springboard relief is limited to cases where there is a misuse of confidential information. Such a limitation was expressly rejected in Midas IT Services v Opus Portfolio Limited, an unreported decision of Blackburne J . . in 1999, although it seems to have been accepted by Scott J in Balston Limited v Headline Filters Limited [1987] FSR 330 at 340.’ and ‘In my judgment, springboard relief is not confined to cases where former employees threaten to abuse confidential information . . It is available to prevent any future or further serious economic loss . . caused by former staff members taking an unfair advantage, an ‘unfair start’, of any serious breaches of their contract of employment.’

Judges:

Openshaw J

Citations:

[2008] EWHC 1974 (QB), [2008] IRLR 965

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – G D Searle and Co Ltd v Celltech Ltd CA 1982
The court was asked as to an employee’s covenant now said to be in restraint of trade.
Held: In disputes between employers and ex-employees courts will usually seek to protect the rights of employees to advance their chosen trade and . .
Cited – Balston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .

Cited by:

Adopted – Dass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 21 June 2022; Ref: scu.277900

Clarke v Coutts and Co (A Firm): CA 17 Jun 2002

The court refused to allow a very late amendment raising a new point.

Citations:

[2002] EWCA Civ 928

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Clarke v Coutts and Co CA 17-Jun-2002
The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order . .

Cited by:

See Also – Clarke v Coutts and Co CA 17-Jun-2002
The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 June 2022; Ref: scu.217280

Independent Research Services Ltd v Catterall: EAT 26 Jun 1992

The claimant was a director of the employer’s company. He claimed that the relationship of trust and confidence with the company had been undermined so far as to be a repudiatory breach of the contract. Before his complaint of unfair dismissal, he wrote without prejudice to the employers offering to stay a full time employee with a payment for ceasing to act as a director. At an interlocutory hearing the Chairman refused to admit the letter in evidence. The employers appealed saying that the ‘without prejudice’ letter was inconsistent with the his assertion that the relationship of trust and confidence had been undermined and that it should be admitted as an exception to the general principle of exclusion.
Held: The employee’s appeal failed. The principles for excluding ‘without prejudice’ correspondence in a Court applied equally to proceedings in Industrial Tribunals. The letter would only be admissible if it came within a recognised exception to the general principle, namely that there would be an abuse of the rule if it was applied to exclude the ‘without prejudice’ correspondence. The appropriate test was whether, if the ‘without prejudice’ material were suppressed, something amounting to a dishonest case would be prosecuted, and that since there was no such dishonesty in the present case, the privilege should remain.
Knox J said: ‘As often happens in difficult cases two well established and valuable legal principles collide. One is that it is desirable that courts and tribunals should have all the available material before them with which to arrive at a just conclusion in accordance with law. The other is that it is desirable that parties should be in a position freely to negotiate a compromise of their disputes without having what they say in the course of those negotiations revealed subsequently and used against them in litigation or proceedings before a tribunal. There is inevitably going to be a contradiction or conflict where an admission, or a statement of present intention, is made which conflicts with the parties’ pleaded case and we quite see that in the present circumstances there is going to be a difficult conflict between the proposition that the applicant’s trust and confidence was destroyed in late April 1991 and remained destroyed to 13 May and on the other hand his willingness to continue as an employee if certain financial inducements were forthcoming. But the existence of the conflict is not of itself, in our view, sufficient to warrant our giving priority to the first of the two principles, namely, that the courts should have all available material before them, over the other, namely, protection for ‘without prejudice’ correspondence. It seems to us, particularly having regard to the authorities that are collected in Mr. Foskett’s book, that the yardstick that should be applied in this category of cases is whether the ‘without prejudice’ material involves, if it is suppressed, something amounting to a dishonest case being prosecuted if the pleaded case continues. The nearest example amongst the quoted cases in Mr. Foskett’s book, to which we were referred, is a decision of Mr. Anthony May Q.C., Hawick Jersey international Ltd. v. Caplan, The Times, 11 March 1988, and the account given of it is this:
‘P claimed a repayment of a loan to D of andpound;10,000 made by means of a cheque. D denied the transaction was a loan because he had supplied andpound;10,000 cash. D secretly tape recorded a ‘without prejudice’ meeting at which (a) P did not dispute and indeed accepted D’s repeated assertions that the transaction was not a loan but one involving an exchange for andpound;10,000 in cash and (b) P expressly or impliedly said that the proceedings were brought to persuade D to reach a fairer settlement or to settle other differences.’
and Mr. May, sitting as a deputy judge of the Queen’s Bench Division, held that P was threatening to persist with dishonest proceedings and accordingly that ‘without prejudice’ privilege did not apply to the discussion. Other more extreme examples are given of threats in the nature of blackmail and other wholly undesirable and, indeed, criminal activities which cannot be indulged in cloaked under the privilege of ‘without prejudice’.
We have therefore looked to see whether we are of the view that the exclusion of the ‘without prejudice’ material and persistence in the applicant’s case as pleaded in his originating application involves something in the nature of dishonest conduct on his part. Tested by that test we conclude that the material should remain hidden from the industrial tribunal because we do not think that there is dishonesty involved in such an attitude.’

Judges:

Knox J

Citations:

[1992] UKEAT 279 – 92 – 2606, [1993] ICR 1

Links:

Bailii

Statutes:

Industrial Tribunals (Rules of Procedure) Regulations 1985 (SI 1985 NO 16)

Cited by:

Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Brodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 19 June 2022; Ref: scu.210996

Bataillon and Another v Shone and Another: QBD 20 May 2016

The claimants were owed very substantial sums under judgments against the defendant’s husband. They now said that assets had been transferred into her name to defeat the judgments.

Judges:

Waksman QC HHJ

Citations:

[2016] EWHC 1174 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 19 June 2022; Ref: scu.564498

Ingall v Moran: CA 1944

The plaintiff had issued a writ in 1942 as administrator of his deceased son’s estate. However, he did not take out letters of administration until the November. It was said that proceedings instituted by an applicant who at the time had no standing to institute those proceedings were an incurable nullity. The limitation period had by then expired.
Held: The grant did not date back to the date of death, and it was too late to issue fresh proceedings or to amend.
Scott LJ said: ‘The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant’s tort. That chose in action was his. To it the common law maxim ‘Actio personalis moritur cum persona’ would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then – and not before – it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son’s surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 – an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff’s failure to produce them the action would, on the defendant’s application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action – just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim. It is true that when he got his title by the grant of administration he prima facie became entitled to sue, and could then have issued a new writ, but that was all. An application by him to treat the original writ of September 17 as retrospectively valid from that date would have been refused by the court, not only because it might prejudice existing rights of defence, but because it would not be permissible under the Rules of the Supreme Court or the Judicature Acts. The old writ was, in truth, incurably a nullity. It was born dead and could not be revived. If that conclusion is right it follows equally that the statement of claim was not delivered in any action recognized by the Rules of the Supreme Court, and all subsequent proceedings in the supposed action, including the judgment of the learned county court judge, were likewise nugatory, for, if the action and the pleadings were bad, there was no valid action before the learned judge to try and it is our duty to say so.’

Judges:

Scott LJ

Citations:

[1944] KB 160

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934

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: 18 June 2022; Ref: scu.415952

Spokes v Grosvenor and West End Railway Terminus Hotel Co Ltd: CA 1897

The court discussed the joinder of the company in a derivative action. A L Smith LJ said: ‘That in the circumstances of this case the company are necessary parties to the suit I do not doubt, for without the company being made a party to the action it could not proceed’ because ‘the company must be party to the suit in order to be bound by the result of the action and to receive the money received in the action.’ Also, ”what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company.’
Chitty LJ said: ‘To such an action as this the company are necessary defendants. The reason is obvious: the wrong alleged is done to the company, and the company must be party to the suit in order to be bound by the result of the action and to receive the money recovered in the action. If the company were not bound they could bring a fresh action for the same cause if the action failed, and there were subsequently a change in the board of directors and in the voting power. Obviously in such action as this is, no specific relief is asked against the company; and obviously, too, what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company. It was argued for the appellants that the company were made a party for the purpose of discovery only, and authorities were cited to shew that when no relief is asked against a party he cannot or ought not to be compelled to make discovery. But this argument and these authorities have no bearing on the present case, where, as already shewn, the action cannot proceed in the absence of the defendant company, and the defendant company are interested in and will be bound by the results’.

Judges:

A L Smith LJ, Chitty LJ

Citations:

[1897] 2 QB 124

Statutes:

Companies Act 2006

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.

Litigation Practice, Company

Updated: 18 June 2022; Ref: scu.415959

Beddow v Beddow: CA 1878

The power in the section embraced the grant of an injunction ‘in any case where it would be right or just to do so’.

Judges:

Sir George Jessel MR

Citations:

(1878) 9 ChD 89

Statutes:

Judicature Act of 1873 25

Jurisdiction:

England and Wales

Cited by:

Applied – Rasu Maritima SA v Perusahaan (the Pertamina) CA 1978
Section 45 of the 1925 Act gives the court a very wide discretion to grant an injunction. . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 June 2022; Ref: scu.416378

Chatsworth Investments Ltd v Cussins (Contractors) Ltd: CA 1969

Judges:

Lord Denning MR

Citations:

[1969] 1 WLR 1

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: 18 June 2022; Ref: scu.415958

Chantry Martin v Martin: CA 1953

The court was asked as to working papers brought into existence by chartered accountants in the preparation of an audit of a client’s books.
Held: Those working papers were the property of the chartered accountants and not the client. Jenkins LJ said: ‘Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc., made by him for his own information in the course of his business which remains his property, although brought into existence in connection with work done for clients.’

Judges:

Jenkins LJ

Citations:

[1953] 2 QB 286, [1953] 2 All ER 691, [1953] 3 WLR 459

Jurisdiction:

England and Wales

Cited by:

Cited – Prudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 June 2022; Ref: scu.376223

Jones v Foxall: CA 27 Mar 1852

Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am able, in all cases, endeavour to repress a practice which, when I was first acquainted with the profession, was never ventured upon but which, according to my experience in this place, has become common of late – namely, that of attempting to convert offers of compromise into admissions of acts prejudicial to the person making them. If this were permitted, the effect would be that no attempt to compromise a dispute could ever be made.’

Judges:

Romilly MR

Citations:

(1852) 15 Beav 388, [1852] EngR 407, (1852) 51 ER 588

Links:

Commonlii

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 . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 June 2022; Ref: scu.243130

Regina v City of London Court Judge and Payne: CA 1892

In a shipping collision case, the court gave guidance on how a statute should be interpreted inder the literal rule: ‘If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity. [However] If the words of an Act admit two interpretations, and if one interpretation leads to an absurdity, and the other does not, the Court will conclude the legislature did not intend the absurdity and adopt the other interpretation’

Judges:

Lord Esher MR

Citations:

[1892] CA

Jurisdiction:

England and Wales

Litigation Practice

Updated: 17 June 2022; Ref: scu.200470

Eaton v Mitchells and Butler Plc: Misc 30 Apr 2015

Hearing to determine particular issues namely: (a) whether the current proceedings are a nullity; (b) whether the current proceedings are permitted to be validated; (c) the costs of the defendant’s application for the proceedings to be struck out; and (d) any consequential orders – claimant made bankrupt before proeedings commenced

Judges:

Keyser QC HHJ

Citations:

[2015] EW Misc B26 (CC)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Litigation Practice

Updated: 17 June 2022; Ref: scu.551738

Tombling v Universal Bulb Co: CA 1951

Denning LJ said: ‘The duty of counsel to his client in a civil case – or in defending an accused person – is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty.’

Citations:

[1951] 2 TLR 28

Jurisdiction:

England and Wales

Cited by:

Cited – Vernon v Bosley (3) CA 19-Dec-1996
The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used . .
Lists of cited by and citing cases may be incomplete.

Legal professions, Litigation Practice

Updated: 17 June 2022; Ref: scu.381568

Bournemouth-Swanage Motor Road and Ferry Co v Harvey and Sons: HL 1930

The company had, under a private Act of Parliament, constructed a jetty and a roadway. They objected to the provision of similar services by the respondents
Held: Their appeal failed. An injunction against competition was refused. The Act did not confer on the ferry company an exclusive right of ferry. The respondents had in fact for many years previously carried passengers over a relate route.
After quoting the relevant section Lord Macmillan, with whom the other members of the House concurred, said: ‘Now this section does not purport to grant a franchise of ferry. It merely empowers the company to establish a ferry service. It imposes no obligation on the company whatever; it does not require the company to provide any service. The terms of the section are permissive not obligatory, enabling not mandatory. If the company chose not to provide a ferry service no member of the public could compel it to do so. In short the position of the company is comparable to that of a railway company which has obtained power to construct and work a new line but is under no obligation to the public either to construct it or to work it when constructed’

Judges:

Lord Macmillan

Citations:

[1930] AC 549, 99 LJ Ch 337, 143 LT 313, 46 TLR 439, 28 LGR 351

Jurisdiction:

England and Wales

Citing:

Appeal from – Bournemouth-Swanage Motor Road and Ferry Co v Harvey and Sons CA 1929
In construing a private statute, it should be viewed so as not to prevent persons carryong out otherwise lawful acts unless expressly so stated.
Scrutton LJ said that clear and unequivocal words were necessary to deprive persons of the power . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Transport, Commercial

Updated: 17 June 2022; Ref: scu.272212

In Re Westminster Property Management Ltd: ChD 19 Jan 2000

Since company director disqualification proceedings were not criminal proceedings, even though they involved the imposition of a penalty, they remained civil proceedings in nature. The European Convention on Human Rights did not apply to protect a director against having material, disclosed by him under compulsion in the course of an insolvency, being used against him in disqualification proceedings.

Citations:

Times 19-Jan-2000, Gazette 03-Feb-2000

Statutes:

European Convention on Human Rights, Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Litigation Practice, Human Rights, Company

Updated: 17 June 2022; Ref: scu.82287

Re Highgrade Traders: CA 1984

Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect.

Judges:

Oliver LJ

Citations:

[1984] BCLC 151

Jurisdiction:

England and Wales

Citing:

Approved – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .

Cited by:

Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 16 June 2022; Ref: scu.188694

Union Bank of the Middle East Ltd v Clapham: CA 15 Jul 1981

The bank having sued the defendant under a guarantee, the defendant sought to join in the principal debtor company to pursue a counterclaim. The defendant appealed a refusal on the ground that the principal would not itself have been given leave to serve a writ on the plaintiff who was outside the jurisdiction.
Held: The appeal was allowed. No distinction was to be made between sub-paragraphs (i) and (ii): ‘Once the bank brought their proceedings in this country for the sumwhich they say is owning to them, they submitted to the jurisdiction of these courts; and thereby exposed themselves to any defence or counterclaim which is properly connected with these proceedings.’

Judges:

Lord Denning MR, Shaw LJ, Griffiths LJ

Citations:

Unrepoerted, 15 July 1981

Statutes:

Rules of the Supreme Court 6(2)(b)(ii)

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 June 2022; Ref: scu.200490

Deutsche Schachtbauund Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd: HL 1990

The case concerned a garnishee order absolute made in respect of a debt situated in England, and the House was not called upon to consider the position where foreign debts were in issue.
Held: (Majority) The court has a ‘discretionary power to make a garnishee order absolute’ and concluded that it would be ‘inequitable where the payment by the garnishee under the order absolute will not necessarily discharge his liability under the attached debt, there being a real risk that he may be held liable in some foreign court to pay a second time.

Judges:

Lord Goff of Chieveley

Citations:

[1990] 1 AC 295

Jurisdiction:

England and Wales

Cited by:

Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 16 June 2022; Ref: scu.183545

Mayor etc of London v Cox: HL 1867

The procedure called foreign attachment, on which the procedure under the 1854 Act was modelled, had existed by immemorial custom in London and other cities. The custom had been certified by the Recorder of London in 1481 but went back much further; enthusiastic City historians traced it to the Roman occupation and even to the laws of Troy.

Citations:

(1867) LR 2 HL 239

Jurisdiction:

England and Wales

Cited by:

Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 June 2022; Ref: scu.183553

Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK): SC 29 Jul 2019

The court was asked as to the making public of papers filed by the parties during litigation.
Held: The appeal failed, and the cross-appeal succeeded. the Court of Appeal had jurisdiction under CPR r 5.4C(2) to make the order which it had made. There remained also an inherent jurisdiction to make order going beyond the Rules. Since that Court had underestimated its jurisdiction and the applicable principles, the matter was referred back to he High Court judge to decide, in accordance with the stated principles, whether the claimant should have access to any other documents.
Lady Hale said this: ‘The circumstances in which this important issue comes before the court are unusual, to say the least. Cape Intermediate Holdings Ltd (‘Cape’) is a company that was involved in the manufacture and supply of asbestos. In January and February 2017, it was the defendant in a six-week trial in the Queen’s Bench Division before Picken J. The trial involved two sets of proceedings, known as the ‘PL claims’ and the ‘CDL claim’, but only the PL claims are relevant to this appeal. In essence, these were claims brought against Cape by insurers who had written employers’ liability policies for employers. The employers had paid damages to former employees who had contracted mesothelioma in the course of their employment. The employers, through their insurers, then claimed a contribution from Cape on the basis that the employees had been exposed at work to asbestos from products manufactured by Cape. It was alleged that Cape had been negligent in the production of asbestos insulation boards; that it knew of the risks of asbestos and had failed to take steps to make those risks clear; indeed, that it obscured, understated and unfairly qualified the information that it had, thus providing false and misleading reassurance to employers and others. Cape denied all this and alleged that the employers were solely responsible to their employees, that it did publish relevant warnings and advice, and that any knowledge which it had of the risks should also have been known to the employers.’
and: ‘Voluminous documentation was produced for the trial. Each set of proceedings had its own hard copy ‘core bundle’, known as Bundle C, which contained the core documents obtained on disclosure and some documents obtained from public sources. The PL core bundle amounted to over 5,000 pages in around 17 lever arch files. In addition, there was a joint Bundle D, only available on an electronic platform, which contained all the disclosed documents in each set of proceedings. If it was needed to refer to a document in Bundle D which was not in Bundle C, it could immediately be viewed on screen, and would then be included in hard copy in Bundle C. The intention was that Bundle C would contain all the documents referred to for the purpose of the trial, whether in the parties’ written and oral opening and closing submissions, or in submissions or evidence during the trial.’

Judges:

Baroness Hale of Richmond P, Lord Briggs, Lady Arden, Lord Kitchin, Lord Sales JJSC

Citations:

[2019] UKSC 38, [2019] WLR(D) 462, [2019] 3 WLR 429, [2019] HRLR 15, [2019] EMLR 24, [2019] 4 All ER 1071, [2020] AC 629, [2020] 1 All ER (Comm) 95, [2019] WLR(D) 462

Links:

Bailii, Bailii Summary,

Jurisdiction:

England and Wales

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 June 2022; Ref: scu.640086

Nabob of The Carnatic v The East India Company: 1789

Citations:

[1789] EngR 1625, (1789-1817) 1 Ves Jun Supp 223, (1789) 34 ER 761 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Nabob of The Carnatic v The East India Company 2-Jan-1789
A political treaty, between sovereigns, or parties exercising sovereign authority cannot be the subject of a municipal jurisdiction. . .

Cited by:

See Also – Nabob of The Carnatic v East India Company 23-Jul-1791
. .
See Also – Nabob of The Carnatic v The East India Company 2-Jan-1789
A political treaty, between sovereigns, or parties exercising sovereign authority cannot be the subject of a municipal jurisdiction. . .
See Also – Nabob of The Carnatic v East India Company 28-Jan-1793
The case arose out of the East India Company’s controversial relations with the Nabob at a stage when the courts had not yet learned to identify the East India Company with the British government. The Company had assisted the Nabob, a sovereign . .
See Also – Ghoolam Moortoozah Khan Bahadoor v The Government, Representing The Estate Of The Late Nabob Of The Carnatic 15-Jun-1863
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 June 2022; Ref: scu.367256

Huntington v Attrill: HL 1893

In deciding how to characterise a claim, the court must examine its substance, and not be misled by appearances. The territorial principle requires attention to be paid to the place where the act was committed. The court defined what was meant by a penal law in the context of justiciability to include: ‘all breaches of public law punishable by pecuniary mulct or otherwise at the instance of the state government or someone representing the public.’

Judges:

Lord Watson

Citations:

[1893] AC 150

Jurisdiction:

England and Wales

Citing:

Applied – Wisconsin v Pelican Insurance Co 1888
(United States Supreme Court) The court considered the rules forbidding the application of foreign penal laws: ‘The rule that the courts of no country execute the penal laws of another applies, not only to prosecutions and sentences for crimes and . .

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 June 2022; Ref: scu.245578

Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2): HL 1977

The court considered a claim that a party was not compelled to give evidence where it might incriminate him: ‘No one is bound to furnish information against himself. It [the common law] says: ‘If a witness claims the protection of the court, on the ground that the answer would tend to incriminate himself and there appears reasonable ground to believe that it would do so, he is not compellable to answer.’ and ‘once it appears that a witness is at risk, then ‘great latitude should be allowed to him in judging for himself the effect of any particular question’: see Reg. v. Boyes (1861) 1 B. and S. 311, 330. It may only be one link in the chain, or only corroborative of existing material, but still he is not bound to answer if he believes on reasonable grounds that it could be used against him. It is not necessary for him to show that proceedings are likely to be taken against him, or would probably be taken against him. It may be improbable that they will be taken, but nevertheless, if there is some risk of their being taken – a real and appreciable risk – as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents.’
Lord Diplock said: ‘Classes of documents provided the description of the class is sufficiently clear, may be required to be produced on subpoena duces tecum.’
Roskill LJ added: ‘It cannot, I think, be right in these cases for the court to attempt a quantitive assessment of the probability one way or the other of the risk of proceedings ultimately being taken, and then to seek to draw the line, one way where the probabilities in the view of the court are thought to be more or less evenly balanced and the other where the balance is more disparate. It is not for the court to resolve problems of this kind by calculating odds. I think that the right question is to ask that posed by Shaw LJ on Friday afternoon. Can exposure to the risk of penalties (or in other cases to the risk of prosecution for a criminal offence) be regarded as so far beyond the bounds of reason as to be no more than a fanciful possibility?’

Judges:

Lord Denning, Lord Diplock, Roskill L

Citations:

[1977] 3 All ER 717, [1978] AC 547

Jurisdiction:

England and Wales

Citing:

Cited – Rex v Edmund Garbett 1847
A man is not compellable to give evidence which might incriminate himself. . .

Cited by:

Appeal from – In re Westinghouse Uranium Contract HL 1978
‘The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested’ Lord Fraser said: ‘in judging the nature of the letters rogatory . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Cited – Phillips v Newsgroup Newspapers Ltd and Others ChD 17-Nov-2010
The claimant had been assistant to a well known publicist. The defendant had settled an action brought by her principal for hacking his mobile telephone, in the course of which it appeared that the claimant’s phone had also been hacked. She now . .
Cited – Sociedade Nacional de Combustatives de Angola UEE v Lundqvist CA 1990
Large quantities of crude oil had been sold at an undervalue by a dishonest consultant and his associates. A Mareva injunction had been granted. The defendant objected to being required to disclose the extent of his foreign assets saying that such . .
Cited – Gray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 June 2022; Ref: scu.193364

Forster v Friedland: CA 10 Nov 1992

The defendant admitted that he considered himself honour bound by an agreement, but said that if it came to litigation he would deny any legal obligation. On the facts, this was held to be ‘very far from blackmail’. As an exception to the rule that without prejudice revelations are not admissible, there is the situation where a statement can be admitted because of an ‘unambiguous impropriety’ – ‘the value of the without prejudice rule would be seriously impaired if its protection could be removed from anything less than unambiguous impropriety.’

Judges:

Hoffmann LJ

Citations:

Unreported, 10 November 1992, Transcript No 1052 of 1992

Jurisdiction:

England and Wales

Cited by:

Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 June 2022; Ref: scu.188464