Category: Litigation Practice

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

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

Judges:

Neuberger J

Citations:

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

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Litigation Practice

Updated: 18 May 2022; Ref: scu.567878

Sartipy (Aka Hamila Sartipy) v Tigris Industries Inc: CA 1 Mar 2019

The claim had been struck out on the basis that the claimant was a proxy for a person against whom an extended civil restraint order had been made. The claimant had herself been made to an ECRO. The point allowed to come to appeal was whether such an order was available when the claimant had not herself repeatedly issued baseless claims.
Held: The requirement that there be at least three totally without merit claims or applications and that these taken together demonstrate persistence was fully satisfied

Citations:

[2019] EWCA Civ 225

Links:

Bailii

Statutes:

Civil Procedure Rules 3.11, Practice Direction 3C

Jurisdiction:

England and Wales

Litigation Practice

Updated: 18 May 2022; Ref: scu.634081

Sun Valley Foods Limited v Vincent: 2000

The court considered the grant of ‘springboard relief’. Jonathan Parker J said: ‘For reasons which I have already explained, there is no room for doubt that the defendants have made unlawful use of material in which Sun Valley/Fields has a proprietary interest. But, as Nourse L.J. explained in Bullivant, that in itself is not enough to found a claim for ‘springboard’ relief. Sun Valley also has to establish (a) that the defendants thereby gained unfair competitive advantage over Sun Valley ‘to use the words of Roxburgh J.’ (an ‘unfair start’) and (b) as of today that advantage still exists and will continue to have effect unless the relief sought is granted.
It is, therefore, necessary to consider on the evidence as it stands (and, of necessity, without the benefit of cross-examination) the extent to which the unlawful copying of Fields’ material assisted the defendants in starting up Fusion’s business and in thereby shortening the start-up period.
In undertaking this task, I must bear in mind that there was nothing unlawful in the individual defendants making use of their own expertise and experience in setting up in competition with Sun Valley/Fields immediately following their resignations. In those respects, a ‘seamless transaction’ from Fields to Fusion was a legitimate aim which cannot found an application for ‘springboard’ relief.’

Judges:

Jonathan Parker J

Citations:

[2000] FSR 825

Jurisdiction:

England and Wales

Cited by:

Cited – Whitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 18 May 2022; Ref: scu.619038

Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd: 1972

The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to sell the land or any part of it. Within that period the first defendants contracted to sell, and then conveyed, the land to the second defendants without any release from the option. In the course of the proceedings for damages for, among other things, breach of contract and conspiracy, the plaintiffs issued a summons for disclosure from the second defendants of instructions to counsel by the first defendants and the opinion of counsel, which had been sent by the first defendants to the second defendants.
Held: The second defendants’ claim for privilege should be upheld and the plaintiffs’ summons dismissed. It was clearly established that privilege of a predecessor in title enures for the benefit of his successor. The second defendants had received the documents at issue as successors in title.

Judges:

Goff J

Citations:

[1972] Ch 533, [1971] 3 All ER 1192, [1972] 2 WLR 91

Jurisdiction:

England and Wales

Citing:

Cited – Minet v Morgan CA 1873
A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps. . .

Cited by:

Cited – In re Konigsberg (A Bankrupt) 1989
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Cited – Shlosberg v Avonwick Holdings and Others ChD 7-Mar-2016
Application for order disallowing a firm from acting for the defendants. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 18 May 2022; Ref: scu.621168

CRE v Justis Publishing Ltd: 20 Mar 2017

The defendant company published case law. The claimant’s case had been anonymised, but the defendant published a version of the judgment from which it was possible to identify him (or her). An order had been made to transfer the case to the County Court, but the claimant applied to have the order set aside.
Held: At the time the M and CL (Media and Communications List) was only just established. The court recorded its views that: ‘It seems to me to be strongly in the interests of justice that this matter be heard by a specialist judge, and that with the advent of the media and communications list (which was only announced after Master Price’s order was made), such a specialist list has now become available, and it seems to me to be the most appropriate forum.
Furthermore, the Chancery Division does not seem to be the appropriate tribunal given the matters raised by the claim and the defendants forthcoming application for summary judgement.’

Judges:

Deputy Master Arkush

Citations:

Unreported

Jurisdiction:

England and Wales

Cited by:

Cited – Mezvinsky and Another v Associated Newspapers Ltd ChD 25-May-2018
Choice of Division and Business Lists
Claim that the publication of pictures of the young children of the celebrity claimants had been published by the defendant on-line without consent and without pixelation, in breach of their human rights, of data protection, and right to privacy. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.616907

Vint v Hudspith: 1885

In the Chancery division, and where judgment has been entered in default, the proper challenge is by request to the judge to set aside his judgment. Though an appeal to the Court of Appeal is possible, such appeals will be discouraged.

Citations:

(1885) 29 ChD 322

Cited by:

Cited – S v Suren and Another QBD 10-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.549470

Slack v Leeds Industrial Co-operative Society Ltd: CA 1924

Nothing in Colls served to undermine the ‘good working rule’ of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages

Judges:

Sir Ernest Pollock MR, and Warrington and Sargant LJJ

Citations:

[1924] 2 Ch 475

Jurisdiction:

England and Wales

Citing:

Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .

Cited by:

Appeal from – Leeds Industrial Co-operative Society Ltd v Slack HL 1924
The plaintiff complained of a threatened interference with ancient lights.
Held: Damages may be awarded in lieu of an injunction even where the injunction sought is a quia timet injunction, but that power imports a further power to give an . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Litigation Practice

Updated: 18 May 2022; Ref: scu.536798

NWL Limited v Woods: 1979

Lord Diplock said: ‘Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the Plaintiff would have succeeded in establishing his right to an injunction of the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.’
He modified his approach in Cyanamid, saying: ‘My Lords, when properly understood, there is in my view nothing in the decision of this House in American Cyanamid Co. v. Ethicon Ltd to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Co. v. Ethicon Ltd, which enjoins the judge on an application for an interlocutory injunction to direct is attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of whichever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party’s interest to proceed to trial.’

Judges:

Lord Diplock

Citations:

[1979] 1 WLR 1294, [1979] 3 All ER 614

Jurisdiction:

England and Wales

Citing:

Modified – 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 . .

Cited by:

Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.537346

Pinnock Bros v Lewis and Peat Ltd: 1923

Roche J said as to Ayscough: ‘In that case the arbitrator decided – whether rightly or wrongly is immaterial for present purposes – that by reason of a clause as to time contained in the contract, the plaintiffs had no claim, and therefore he dismissed it. In the present case, the arbitrator merely decided that he had no jurisdictio, and that being in the award does not and cannot determine the substance of the plaintiff’s claim.’
Later he said: ‘The mere presence of an arbitration clause is no defence to an action on the contract.An award following on the arbitration clause mnay be an answer to the claim, and it will be an answer where it deal with the claim

Judges:

Roche J

Citations:

[1923] 1 KB 690

Litigation Practice

Updated: 18 May 2022; Ref: scu.509129

Case Viii 27 H 6, 4 28 H 6, 1 4 H 6, 22 By All The Judges of England: 1220

In trespass the parties are at issue ; at the trial some of the jurors appear, and some make default ; a distringas with decem tales is awarded : upon this distringas a full jury appears; at this day a protection cast for the defendant shall be allowed ; for he is then demandable, and the end of a protection is to excuse his defaut. A protection does not lie, after a juror is worn.

Citations:

[1220] EngR 676, (1220-1623) Jenk 108, (1220) 145 ER 76 (B)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461588

Case LIII: 1220

If the teste of the original writ of covenant is after the conusance in the case of a fine ; and so for the common recovery as to the teste of the writ of entry in the post ; they are amenable : for these are manifest mistakes of the clerk, although it was taken otherwise in the 39 Eliz. yet it was resolved as above the 41 Eliz. Note the Book of Entries, 252. Fines are commonly acknowledged, arid after the caption, the writ of covenant entered with the antedate.

Citations:

[1220] EngR 665, (1220-1623) Jenk 258, (1220) 145 ER 184 (A)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461577

Ex parte Mwenya: CA 1959

A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as ‘proper and efficient’ to do so. However, it remains ‘the most efficient protection yet developed for the liberty of the subject’. The reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of ‘the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.’
Lord Parker said: ‘Reliance was further placed by the applicant on Barnardo v Ford and Rex v Secretary of State for Horne Affairs, Ex p O’Brien. Both those cases are authority for the proposition that the writ will issue not only to the actual gaoler but to a person who has power or control over the body. Further, in O’Brien’s case the writ was issued to the Secretary of State for Home Affairs, who had in fact handed the physical custody of the body over to the Government of the Irish Free State. It is clear, however, from the facts of that case, that the Secretary of State had not only been responsible for the original detention but that there were strong grounds for thinking that in handing over the body to the Government of the Irish Free State he had not lost all control over it. In those circumstances the court decided to issue the writ in order that the full facts could be investigated and argument heard on the return.
The position here is quite different. The restriction orders under which the applicant is detained were not made by the Secretary of State. His approval or consent was not required and there is no evidence that he took any part in the detention. No doubt the writ will issue not only to a person who has the actual custody but also to a person who has the constructive custody in the sense of having power and control over the body. Here, however, we can find no custody by the Secretary of State in any form.’ (obiter) said: ‘Finally, we should mention another point that was raised, namely, that even if the Secretary of State could be regarded as the custodian of the body the writ would not issue to a custodian in this country where the original and present detention was, as in the present case, in a foreign territory . .’

Judges:

Lord Evershed MR, Lord Parker

Citations:

[1960] 1 QB 241, [1959] 3 All ER 525

Citing:

Cited – Barnardo v Ford HL 1892
A boy who had been ‘found destitute and homeless’ by a ‘clergyman residing in Folkestone’ had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to ‘an American gentleman’, who had taken him to Canada. . .
Cited – Secretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .

Cited by:

Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.470682

CASE XLVI 5 E 4, 93 Stamf 85 Ve Na Br 50: 1220

A. recovers against B. in a praecipe quod reddat, by default ; the writ of deceit in this case is judicial, and issues out of the Common Pleas, and the process is attachment and distress infinite, and is mentioned in the writ ; and in this case A. and the sheriff, and the summoners and veiors are made parties by this writ; that is, he who was sheriff and made the, return of the summons which by the writ of deceit is alledged to be false. If the present sheriff did this deceit, the writ of deceit aforesaid shall be directed to the coroners. The sheriff in this case for summoner return C. and D, de Dale, yeomen, summonitores ; the tenant shall have an averment aganst this return, that there are in Dale, yeomen, two C.’s and D.’s ; C. and D named in the sheriff’s return to be the summoners, are the elder; and other C. and D. the younger, by which the sheriff has returned the said false summons to be made : this issue, which of them was returned by the sheriff; and whether they be the sumnoners returned by the sheriff or not, shall not be tried by the country, but by the examination of the judges ; as infancy upon a writ of error to reverse a fine levied by him during his nonage ; this nonage shall be tried by inspection, and the examination of the judges, and not otherwise.

Citations:

[1220] EngR 560, (1220-1623) Jenk 122, (1220) 145 ER 86 (A)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461472

2 R 3, 81 1 Cr 452 35 H 7, 16 Statutes, Process, Eviction, Certificate, Retorne De Viscount: 1220

A statute staple or merchant is once certified in Chancery, there is no occasion for a new certificate if the conusee dies ; but there is occasion if the Chancellor he named by his Christian name, and dies ; or if the first certificate was insufficient. Upon a statute staple, a capias and extent of lands, goods, and chattels are contained in one writ ; but it is not so upon a statute-merchanit. If the land be extended upon this writ, and the body be not found ; a new capias shall not be directed to the sheriff of another county, without a testatum that latitat there. The executor of the conusee must have a new certificate ; for the certificate had in the life of the conusee will not serve. A scire facias does not lie for the executor; for the statute prescribes the process, and that must be used : as Westm 2, cap. 35, gives the writ of ravishment of ward; this writ was not the words vi and armis: for this would not follow the form prescribed by the statute. Lands extended are evicted, at common law a new extent would not lie ; so if the husband died seised in right of his wife : but at this day, by the statute 37 H. 8, where there is a total eviction, a new extent may be awarded. But at common law, and at this day, such eviction does not hinder a capias for the body of the conusor. Where, after a younger statute is extended, an extendi facias upon an elder statute comes to the sheriff; the sheriff has his choice whether to return this matter, or to extend the elder statute.
By all the judges of England.

Citations:

[1220] EngR 290, (1220-1623) Jenk 163, (1220) 145 ER 105 (B)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461202

Case LXXI 29 Ass Pl 47 6 E 4, 9 7 H 4, 41 30 Ass Pl 20: 1220

Outlawry is a good plea in an audita querela, for the outlawry does not depend upon the audita querela ; and the judgment against which relief is prayed, is not to be reversed, but only the execution of it. In error, outlawry upon the judgment which is to be reversed by the writ of error, is not a plea,; for the said judgment being the foundation of the outlawry, the reversal of it reverses the outlawry: but a writ of error, to reverse any other judgment thn that upon which the outlawry depends, outlawry is a good plea. ‘Tis so of an attaint, where the attaint is to annul the verdict ; and by consequence, the judgment upon which the outlawry depends, doth not disable the plaintiff in the said attaint ; for the foundation is to be taken away, and therefore the outlawry in this case is no plea.
Judged by both benches.
If a writ of error be brought to reverse an outlawry in any action, outlawry in another action shall not disable the plaintiff in error; for otherwise, if the outlawry was erroneous, it shall never be reversed.
Exceptio rei cujus dissolutio petitur, nulla est.

Citations:

[1220] EngR 373, (1220-1623) Jenk 37, (1220) 145 ER 28 (A)

Links:

Commonlii

Torts – Other, Litigation Practice

Updated: 18 May 2022; Ref: scu.461285

Case LXXXIX 2 Keb 260, Pl 9 Jac Hob 5, Crowe’s Case: 1220

Visne, Consensus, Error.
A. brings delict against B. upon an obligation bearing date at Coventry. This suit was in the King’s Bench, removed thither out of Coventry; a procedendo was awarded to Coventry ; by agreement betweeri the parties, the procendendo was not delivered but the plaintiff prosecuted his suit in the King’s Bench, and laid the said action in London ; upon issue of non est factum pleaded, the plaintiff had a verdict, and judgment ; reversed in error, notwithstanding the said consent of plaintiff arid defendant, and although this action be transitory.

Citations:

[1220] EngR 278, (1220-1623) Jenk 310, (1220) 145 ER 226 (D)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461190

CASE LIII 10 E 4, 15 Dyer, 212, 241 Yel 51, 52 Rescous, Return Le Viscount: 1220

Upon a capias directed to the sheriff against A. the sheriff returns a rescous by J S of Dale yeoman, and mentions the year and day, but not the place where the rescous was committed ; this return is void : for it cannot be traversed for want of a place out of which the jury shall come : but upon this return the rescuer, upon his appearance, shall be commiitted ; and afterwards received to his traverse, or exception to the indictment : for a rescous is a great and heinous offence in violation and contempt of justice; and this want of a legal form shall not excuse him from imprisonment in terrorem and exemplum.
By the judges of both benches.

Citations:

[1220] EngR 50, (1220-1623) Jenk 125, (1220) 145 ER 88 (B)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.460962

Case LXXXVII 10 Co 130, Osborne’s Case Damages, Fanx Latin, Anglice, Count Hardr 41 Cr Jac 665: 1220

A. brings an action on the case against B. and counts that B. took from him several goods, and mentions them and inter alia fulcrum lecti, Anglice a tester of a bed with curtains of say; upon not guilty pleaded, a verdict is found for the plainitiff, and entire damages given : arid well. For Anglice will serve : especially where there is no Latin word obvious to signify it : as in this case, there is no Latin word for a tester of a bed.
But where an obvious word occurs, because that by law, viz. by the statute of 36 E, 3, all pleas ought to be irtrolled in Latin, an Anglice will riot serve ; lest the divine science of the law should be prophaned by bararisms . Thus, in trespass pro captione and abductions unius Cornetti ; Anglice, an ox, this is faulty ; for bos is an obvious word for it.

Citations:

[1220] EngR 47, (1220-1623) Jenk 270, (1220) 145 ER 194 (A)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.460959

1 H 7, 20 5 Co 88 A B, Garnon’s Case Execution: 1220

A. brings trespass vi and armis against B. B. is condemned in damages in the time of one King, who demises ; upon the coronation of the new King there was a pardon of this fine ; after four years the defendant was taken by a capias pro fine: for the King : upon a petition to the King in this case he shall be discharged; and shall not be in executiori for the plaintiff, although he should pray it ; for the capias pro fine issued erroneously after a pardon ; and he cannot be in execution at the suit, and upon the prayer of the party in this case, neither after the year is ended, nor within the year ; for the reason aforesaid.
By all the judges of England.

Citations:

[1220] EngR 23, (1220-1623) Jenk 169, (1220) 145 ER 110 (D)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.460935

White v Brunton: CA 1984

A judgment given upon a trial of a preliminary issue was held to be a final judgment for the purpose of deciding whether leave to appeal was required on the ground that it could be treated as the first part of a final hearing. Sir John Donaldson MR exaplained his conclusion: ‘It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter upon the ability of the court to order split trials.’

Judges:

Sir John Donaldson MR

Citations:

[1984] QB 570

Jurisdiction:

England and Wales

Cited by:

Cited – Holmes v Bangladesh Binan Corporation 1988
An appeal was sought from a judge’s order deciding a preliminary issue of law. The claimant sought damages under the Fatal Accidents Act case.
Held: Bingham LJ said: ‘Order 33, r. 3 gives the Court a wide discretion to order the separate trial . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.449037

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.
The appointment of a receiver over foreign assets is an in personam remedy. Dillon LJ said: ‘But the more recent developments of the law in relation to Mareva injunctions show, in my judgment, that those views are wrong. The jurisdiction of the court to grant a Mareva injunction against a person depends not on territorial jurisdiction of the English court over assets within its jurisdiction, but on the unlimited jurisdiction of the English court in personam against any person, whether an individual or a corporation, who is, under English procedure, properly made a party to proceedings pending before the English court. This is particularly underlined by the judgment of Lord Donaldson of Lymington MR in Derby and Co. Ltd. v. Weldon (Nos. 3 and 4) [1990] Ch 65 . . Another potential sanction for disobedience that would remain is that a defendant who disobeyed an order of the court could be barred from defending the proceedings.
In truth the original, somewhat territorial, approach in Ashtiani v. Kashi has been turned the other way round by the introduction of the so-called Babanaft proviso in Babanaft International Co. S.A. v. Bassatne [1990] Ch. 13. That was revised in Derby and Co. Ltd. v. Weldon (Nos. 3 and 4) and as so revised is of course the basic order in the present case. Application to a foreign court to recognise the order or to declare it enforceable is only necessary in so far as the order purports to have effect outside England and Wales and it is sought to affect by the order a person to whom the order is not addressed and who is not in certain categories of person subject to the jurisdiction of this court.
To regard the grant of a Mareva injunction not as a matter of territorial jurisdiction to be exercised court by court throughout the various countries of the world where it may be appropriate but as a matter of unlimited jurisdiction in personam of the English court over persons who have properly been made parties, under English procedure, to proceedings pending before the English court is consistent with the approach of the English court to the appointment of receivers of the British and foreign assets of English companies. The court has always been ready to appoint a receiver over the foreign as well as British assets of an English company, even though it has recognized that in relation to foreign assets the appointment may not prove effective without assistance from a foreign court: In re Maudslay, Sons and Field; Maudslay v. Maudslay, Sons and Field [1900] 1 Ch. 602. Moreover where a foreign court of the country where the assets are situate refuses to recognise the receiver appointed by the English court, the English court will, in an appropriate case, do what it can to render the appointment effective by orders in personam against persons who are subject to the jurisdiction of the English court; see the helpful decision of Neville J. in In re Huinac Copper Mines Ltd.; Matheson and Co. v. The Company [1910] W.N. 218.
Conversely the English court is – international convention apart – unwilling to exercise its powers within this country in support of a receiver appointed by a foreign court, save on very strictly limited traditional principles of international law: see Schemmer v. Property Resources Ltd. [1975] Ch. 273. Indeed, from the observations of Lord Diplock in Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A. [1979] A.C. 210, it would seem that before the enactment of the Supreme Court Act 1981 there could have been problems of jurisdiction in some cases. But provided that third parties do not invoke the jurisdiction of the English court for the protection of their own rights – as in British Nylon Spinners Ltd. v. I.C.I. Ltd. [1953] Ch. 19 – the foreign court is free to achieve its objectives by making orders in personam against persons who are subject to its jurisdiction.’

Judges:

Dillon, Taylor LJJ

Citations:

[1990] 1 WLR 1139, [1990] 3 All ER 263

Jurisdiction:

England and Wales

Citing:

Cited – 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 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 . .
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 . .

Cited by:

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: 18 May 2022; Ref: scu.449760

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 interlocutory injunction.
Held: The second defendant was free to set up such a business even whilst employed by the plaintiff. Though he might be in breach of contract by soliciting customers in the way he had, this was not an issue suitable for the interlocutary relief sought. A court should be careful to find a balance between the plaintiff’s rights over its own confidential material, and the defendant’s right to make use of his technical knowledge and experience to make his living.
Scott J discussed the enforcement of restrictive covenants in employment contracts: ‘The use of confidential information restrictions in order to fetter the ability of these employees to use their skills and experience after determination of their employment to compete with their ex-employer is, in my view, potentially harmful. It would be capable of imposing a new form of servitude or serfdom, to use Cumming-Bruce LJ’s words [in G D Searle and Co Ltd v Celltech Ltd [1982] FSR 92], on technologically qualified employees. It would render them unable in practice to leave their employment for want of an ability to use their skills and experience after leaving. Employers who want to impose fetters of this sort on their employees ought in my view to be expected to do so by express covenant. The reasonableness of the covenant can then be subjected to the rigorous attention to which all employee covenants in restraint of trade are subject.’
As to the use of injunctions: ‘These past breaches of duty . . cannot, in my judgment, sustain an interlocutory injunction on their own account. Whether an injunction, interlocutory or otherwise, can ever be justified on the ground that the grant is necessary in order to deprive a contract breaker of the fruits of his breach of contract, I regard as highly questionable.’

Judges:

Scott J

Citations:

[1987] FSR 330

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 by:

Cited – 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 . .
Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
See Also – Balston Ltd v Headline Filters Ltd and Another ChD 1990
The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which . .
Cited – Caterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 18 May 2022; Ref: scu.432829

Bulwer’s Case: 1572

B. brought an action on the case in the county of N. for maliciously causing him to be outlawed in London upon process sued out of a Court at Westminster, and causing him to be imprisoned in N. upon a capias iutlagutum directed to the sheriff of that county, but issued at Westminster; and upon demurrer it was adjudged that the action was well brought in the county of N.
In all cases where the action is founded on two things done in several counties, and both are material or traversable, and the one without the other does not maintain the action, the plaintiff may bring his actiori in which county he will.

Citations:

[1572] EngR 58, (1572-1616) 7 Co Rep 1, (1572) 77 ER 411

Links:

Commonlii

Torts – Other, Litigation Practice

Updated: 18 May 2022; Ref: scu.432025

Slade’s Case: 1598

The parties had ageed for the sale of wheat and rye crops. Slade complained as to the breach, seeking to bring an action in assumpsit. The defendant denied the existence of a contract.
Held: A jury returned a special verdict, finding Defendant paid Plaintiff for the wheat and the rye and that there was no other promises made between Plaintiff and Defendant other than the bargain in question. The issue was presented to the Justices and Barons to resolve differences between the courts regarding the issue. Where the parties has agreed for a thing, provided one had carried his duties, the other could be compelled by an action in assumpsit without formal requirements for actions on the contract

Citations:

[1598] EngR 39, (1598) 4 Co Rep 92, (1598) 76 ER 1074, [1598] EngR 40, (1598) 4 Co Rep 91, (1598) 76 ER 1072

Links:

Commonlii, Commonlii

Contract, Litigation Practice

Updated: 18 May 2022; Ref: scu.427556

The Conservative and Unionist Party v The Election Commissioner: CA 23 Nov 2010

A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded costs against him. He was unable to meet the sum awarded and became bankrupt. The candidate who had lost sought payment from the defrauding candidate’s party (against whom no offence had been found). The Party now disputed the jurisdiction of and its use by the Commissioner to join them. Party funds had insured the fund for the defence in Court. It was argued that the Commissioner was functus officio, and had no jurisdiction to take matters further.

Judges:

Maurice Kay VP, Smith, Leveson LJJ

Citations:

[2010] EWCA Civ 1332, [2011] PTSR 416

Links:

Bailii

Statutes:

Representation of the People Act 1983

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Cripps; Ex parte Muldoon CA 1984
The Elections Commissioner had sought, some time after his order on a petition, to clarify the order from costs.
Held: The Commissioner, and in turn Keith J, had been wrong to consider themselves not bound by Muldoon. What Mr Cripps (the . .
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Appeal from – The Conservative and Unionist Party v The Election Commissioner and Others Admn 19-Feb-2010
A local election result had been set aside for fraud in the winning Conservative candidate. The Commissioner made an order for costs against his party which was now challenged for lack of jurisdiction the Commissioner being functus officio, and the . .
Cited – Ullah and Others, Ahmed v Pagel, Scallan, Kennedy CA 12-Dec-2002
The claimants sought to issue election petitions to challenge the results of local elections. The petitioners had complied with all the rules save that they had failed to serve the notice of presentation within the five day period. The claimants . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Taunton Election Petition, In re; Marshall v James CCP 29-May-1874
A petition against the return of the member for Taunton was filed in November 1873. The trial commenced on the 12th of January, 1874, and on the morning of the 26th, at about 10.30, the judge gave judgment declaring the respondent to have been duly . .
Cited – Regina v Cripps; Ex parte Muldoon QBD 1983
The election commissioner, Mr Anthony Cripps QC, had purported to explain many months later what he had meant in an order for costs which he had made when handing down his judgment on an election petition. It was argued that he had had the power to . .
Cited – Vakauta v Kelly 1989
(High Court of Australia) The majority held that the first instance judge fell on the wrong side of ‘an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Lists of cited by and citing cases may be incomplete.

Elections, Costs, Litigation Practice

Updated: 18 May 2022; Ref: scu.426466

Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners: HL 1974

An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying documents supplied to them by others containing confidential information about the affairs of persons other than the plaintiff who were not parties to the litigation. Much of the material appears to have been provided by those persons to the Commissioner of Customs and Excise pursuant to their statutory powers.
Held: The Court had a discretion to order disclosure of the documents and a Court would do so ‘if it is in the public interest . . if either party wanted them before the Court, he would have to subpoena the third party to produce them.’
As to this ground of privilege, Lord Denning said: ‘Although the commissioners are not entitled to Crown privilege, they are, I think, entitled to claim privilege on another ground. The privilege is quite sufficiently claimed by Sir Louis Petch in his affidavit on the ground of confidence, but is not a privilege peculiar to the Crown. It is a privilege available to all litigants. It comes down to us from the Chancery Court. It is this; a party to litigation is not obliged to produce documents, or copies of documents, which do not belong to him, but which have been entrusted to his custody by a third party in confidence. It frequently happens that a party who thinks he may be involved in litigation goes to a friend who has a material document. The friend allows him in confidence to see it and take a copy of it. He takes a copy and hands it to his solicitor. The original document came into existence long before any litigation was contemplated. It was not prepared for the purpose of getting advice on it. If the party had been entrusted by the owner with the original, it would clearly be privileged from production, simply because it did not belong to him.’
Lord Denning then quotes some authorities and continues: ‘Likewise the copy in his hands is also privileged, because he was only allowed to take the copy in confidence, and it would be an abuse of that confidence to disclose it without the permission of the owner of the original.’
Lord Cross said: ‘Here, on the other hand, one can well see that the third parties that have supplied this information to the commissioners because of their statutory powers would very much resent disclosure by the commissioner to the appellant and that it is not at all fanciful for Sir Louis to say that the knowledge that the commissioners cannot keep such information secret may be harmful to the official working of the Act. In a case where the considerations for and against disclosure appear to be fairly evenly balanced the court should I think uphold the claim for privilege on public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill-effects of non-disclosure.’

Judges:

Denning, Cross LL

Citations:

[1974] AC 405, [1973] 2 All ER 1169

Statutes:

Purchase Tax Act 1963

Jurisdiction:

England and Wales

Citing:

Appeal from – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners CA 1972
Legal advice given by employed lawyers to their employers, rather than lawyers in independent practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a . .

Cited by:

Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 18 May 2022; Ref: scu.420493

Armour v Glasgow Royal Infirmary: 1909

Lord Ordinary, Lord Skerrington said that in the ordinary case the action could be brought only at the instance of the trustees. But the testamentary trustees had been called as defenders, and concurred with the Infirmary in maintaining that the money was properly paid. Consequently in those circumstances ‘the pursuers have a good and sufficient title to maintain this action to the effect of demanding that the money shall be repaid to the trustees.’

Citations:

1909 SC 916

Jurisdiction:

Scotland

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: 18 May 2022; Ref: scu.415971

Weldon v Strudder: 1658

Motion to enter the death of the plaintiff on the roll.
It was moved to the Court that the plaintiff after he had obteyned a verdict, and before judgenent entred, dyed, and prayed that this might be entred upon the roll ; but the Court denyed it, and said it could not be.

Citations:

[1658] EngR 747, (1658) Sty 379, (1658) 82 ER 794 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 18 May 2022; Ref: scu.411538

– And The Lord Moone: 1658

For a supersedeas for a peer of the realm. Supersedeas.
My Lord Moone had a sute commenced against him in this Court, and tbereupon he moves by his councel upon an affidavit that he was a peer of the realm, and a Lord of the Parliament, and therefore ought not to be sued, and prayes for a supersedeas to stay the proceedings. Roll lustice, Plead your privilege, for upon an affidavit we will make no rule, or else acquaint the other party that he is a peer of the realm, and it is like he will forbear to proceed thereupon. But you ought not to troubl the Court with such notions as these.

Citations:

[1658] EngR 18, (1658) Sty 118, (1658) 82 ER 576 (B)

Links:

Commonlii

Litigation Practice, Constitutional

Updated: 18 May 2022; Ref: scu.410809

Elwin v Mountford: 1669

M. had recovered against E. by default in the Kings Bench, 43 Eliz. and error was assign’d, because there was not any bayl put that term, and then there was not any appearance, and that being so certified, the judgment was resettle reversed.

Citations:

[1669] EngR 190, (1669) Noy 45, (1669) 74 ER 1014 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 18 May 2022; Ref: scu.407030

– And Clatch: 1685

Debt on obligation of 600l. The defendant pleads that condition was to pay a less sum by a day, and that before the day he paied in satisfaction, which per Curiam is an ill plea, having not demanded oyer of the condition.
The plaintiff replied, demanding oyer that the condition was to pay a less sum by a day, and the defendant demurs without shewing that the money was paied at the day, which per Curiam is ill; and judgment must be against the plaintiff. Sed adjornatur.

Citations:

[1685] EngR 81, (1685) 3 Keb 708, (1685) 84 ER 965 (D)

Links:

Commonlii

Litigation Practice, Contract

Updated: 18 May 2022; Ref: scu.396856

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union: 1979

(Federal Court of Australia) Deane J interpreted a statute using the word ‘substantial’ saying that it ‘is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision.’

Judges:

Deane J

Citations:

(1979) 42 FLR 331

Cited by:

Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 18 May 2022; Ref: scu.406669

Worlich v Massy and Co: 1791

If a person become surety for the appearance of the plaintiff in Chancery, ‘ad dandum juri in hoc parte, and that he shall prosecute with effect,’ it imports that the surety shall ‘pay the condemnation, if the plaiiitiff does not pay it, nor prosecute with effect.’

Citations:

[1791] EngR 1251, (1791) Cro Jac 67, (1791) 79 ER 57

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.362766

Merricks and Another v Nott-Bower: CA 1964

The plaintiff police officers had been disciplined by transfer in 1957 as a result of a report by an officer who was subsequently discredited. After their accuser was discredited they sought a declaration that the disciplinary action taken against them had been taken contrary to natural justice.
Held: Lord Denning MR said that: ‘It is asked: what use can such declarations be at this stage, when the transfer took place six and a half years ago? What good does it do now? There can be no question of reopening the transfers . . on this point we have been referred to a number of cases which show how greatly the power to grant a declaration has been widened in recent years. If a real question is involved, which is not merely theoretical, and on which the court’s gives practical guidance, then the court in its discretion can grant a declaration.’ and ‘Such being the case made, I am not prepared to say that it is unarguable. It is a well-known principle of our law that any powers conferred by statute or regulation on an executive or administrative authority must be exercised in good faith for the purpose for which they are granted. They must not be misused or abused by being applied to an ulterior purpose. Whether that principle applies here or not, I do not say; all I do say is that, if the plaintiffs allege, as they did that this was a misuse of the power of transfer that it was used, not for the purpose of good administration and efficiency but for the motive of punishment they have an arguable case which they are entitled to have tried by the courts.’

Judges:

Lord Denning MR

Citations:

[1964] 1 All ER 717, [1965] 1 QB 57, [1965] 2 WLR 702

Cited by:

Cited – Williams v Home Office (No 2) 2-Jan-1981
The plaintiff prisoner had been transferred from ordinary prison to a special control unit which had been established at the prison as a means of containing and controlling prisoners who were considered to be troublemakers and inducing them to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Administrative

Updated: 18 May 2022; Ref: scu.374246

The United Company of Merchants of England, Trading To The East Indies v Roger Kynaston, Esq: HL 9 Mar 1821

The Respondent, an impropriate rector, having by a decree of the Court of Chancery been found to be entitled (under the decree made in pursuance of the act 37 Henry VHI.) to the tithes, according to the value, of warehouses in London, occupied by the Appelant and which never had been rented, the Court has jurisdiction to make an order upon the Appelant to permit inspection, for the purpose of ascertaining the value. Such an order cannot be executed by force, but operates only on the person, as a foundation for process of contempt, and to take the Bill, pro confesso, if necessary.
Lord Redesdale said: ‘The arguments urged for the Appellants at the Bar are founded upon the supposition that the Court has directed a forcible inspection. This is an erroneous view of the case. The order is to permit; and if the East India Company should refuse to permit inspection, they will be guilty of a contempt of the Court . . It is an order operating on the person requiring the defendants to permit inspection, not giving authority of force, or to break open the doors of their warehouse’.

Judges:

Lord Redesdale

Citations:

[1821] EngR 243, (1821) 3 Bligh PC 153, (1821) 4 ER 561

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Kynaston v The East India Company 1-Feb-1803
. .
Appeal from – Kynaston v The East India Company 4-May-1819
. .

Cited by:

Cited – Anton Piller v Manufacturing Processes Ltd CA 8-Dec-1975
Civil Search Orders possible
The plaintiff manufactured and supplied through the defendants, its English agents, computer components. It had reason to suspect that the defendant was disclosing its trade secrets to competitors. The court considered the effect of a civil search . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.329829

London Passenger Transport Board v Moscrop: HL 1942

Lord Maugham said: ‘the courts have always recognized that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be made parties before a declaration by its terms affecting their rights is made.’

Judges:

Lord Maugham

Citations:

[1942] AC 332

Jurisdiction:

England and Wales

Cited by:

Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.346208

Henley v The Mayor And Corporation Of Lyme Regis: HL 27 Jun 1829

Where a verdict was taken by consent on two counts, the Court, on the application of the Plaintiff, amended the postea, by entering the verdict on one, (to which the evidence applied,) though the Judge who presided at the trial declined to interfere

Citations:

[1829] EngR 554, (1829) 5 Bing 100, (1829) 130 ER 1218

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal from – Henly v Lyme Corporation 1828
The plaintiff owned property by the sea. It was swamped by the tide because the corporation, who had been granted land by the Crown subject to a condition that it maintain the sea-defences of the cob, had ‘wrongfully and unjustly intending to . .

Cited by:

Cited – Watson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .
Cited – Watson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.322422

Luckie v Gopert: 26 Nov 1841

If in assumpsit on a bill of exchange by indorsee against acceptor, with a count upon an account stated, the defendant plead to the firat count that he did not accept, and do not plead at all to the second count, and the award of venire be in the usual form to try ; the Judge at Nisi Prius will try the issue joined, and, if a verdict pass for the plaintiff, a nolle prosequi should be entered as to the count upon an account stated.

Citations:

[1841] EngR 1156, (1841) Car and M 57, (1841) 174 ER 407 (A)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.309334

Gilmore v Whitmarsh: 1860

Where a document was proved to have been m the actual possession of a party to the action, or to be now in the possession of his attorney in another action :- Held, that secondary evidence was admissible, notice ham been given to that attorney to produce it ; and, semble, that it would have been so even without such notice to the attorney

Citations:

[1860] EngR 80 (A), (1860) 2 F and F 295

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 18 May 2022; Ref: scu.284919

The Attorney-General, At The Relation Of Joseph Greenhill v Sidney Sussex College, Cambridge; Trinity College, Oxford, And Frederick Greenhill: 4 May 1865

Lord Chelmsford LC said, of an argument by that college that the leave of the Charity Commissioners ought to have been obtained to the plaintiff’s proceedings but had not been, that: ‘The objection if persisted in must prevail, but in that case [he] would give leave to apply to the commissioners, and he would suspend the decree for that purpose.’

Citations:

[1865] EngR 431, (1865) 34 Beav 654, (1865) 55 ER 788

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Charity, Litigation Practice

Updated: 18 May 2022; Ref: scu.281343

Finlan v Winfield: ChD 2007

Blackburne J said that when considering an application to amend particulars of claim outside the limitation period: ‘the court should not confine itself to a comparison of the new cause of action with the existing cause of action at the highest level of abstraction – ie, at those facts, and no more, which the claimant must prove to entitle himself to relief – but rather at the whole range of facts which are likely to be adduced at the trial even though many of them may not be essential to the establishment of the claimant’s cause of action’

Judges:

Blackburne J

Citations:

[2007] EWHC 914 (Ch)

Cited by:

Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.278873

Practice Statement (House of Lords: Appearance of counsel) in the House of Lords: HL 22 May 2008

The House reminded counsel that if they were instructed to appear in a case before the highest court of the land, they were expected to appear in person. The House valued and relied upon counsel to assist, and attendance was both expected and required. Where circumstances justified a non-attendance, counsel should write to the appropriate law lord to seek leave of absence.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood

Citations:

Times 03-Jun-2008

Jurisdiction:

England and Wales

Litigation Practice

Updated: 18 May 2022; Ref: scu.277555

The Owners of the “P. Caland” and Freight v Glamorgan Steamship Co Ltd: HL 1893

There were concurrent findings on the question whether a vessel was showing a red light when it came into collision with another vessel. The House was asked to disturb the findings of fact.
Held: A mere finding of fact in which both the courts below had concurred ought not to be disturbed unless it could be clearly demonstrated that the finding was erroneous. Lord Herschell said: ‘In the present case, although I might probably myself have come to a different conclusion, I cannot say that any cardinal fact was disregarded or unduly estimated by the courts below. I can lay hold of nothing as turning the balance decisively the one way rather than the other. I think the decision of the question of fact at issue depends upon which way the balance of probability inclines, and I am not prepared to advise your Lordships that it so unequivocally inclines in the opposite direction to that indicated in the judgments of the courts below, that this House would be justified in reversing the judgment appealed from.’ and

‘Now I quite agree with what has been said in this House in previous cases as to the importance of not disturbing a mere finding of fact in which both the Courts below have concurred. I think such a step ought only to be taken when it can be clearly demonstrated that the finding is erroneous. .’

Judges:

Lord Herschell

Citations:

[1893] AC 207

Jurisdiction:

England and Wales

Cited by:

Cited – Hicks v Chief Constable of the South Yorkshire Police HL 5-Mar-1992
The plaintiffs sought damages after watching television scenes of the football match at Hillsborough at which their two daughters died after disorder.
Held: Neither the risk of future injury nor anxiety at the prospect of future injury is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.272833

Practice Direction: Court Bundles (Universal Practice to be Applied in All Courts other than the Family Proceedings Court): FD 2006

Judges:

Sir Mark Potter P

Citations:

[2006] 2 FLR 199

Jurisdiction:

England and Wales

Cited by:

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: 18 May 2022; Ref: scu.272841

Slough Estates Ltd v Slough Borough Council: HL 1971

Extrinsic evidence may be used to identify a thing or place referred to in a public document. Lord Reid said however that this was different from using evidence of facts known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in it. As he put it, members of the public, entitled to rely on a public document, ought not to be subject to the risk of its apparent meaning being altered by the introduction of extrinsic evidence.

Judges:

Lord Reid

Citations:

[1971] AC 958

Jurisdiction:

England and Wales

Cited by:

Cited – Opua Ferries Ltd and Another v Fullers Bay of Islands Ltd PC 5-Mar-2003
PC (New Zealand) The Board was asked whether whether the effect of the registration of the repondent as licencees to provide ferry services permitted them to operate the ferry service with two vessels or with one . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.271025

Kenneth Allison Ltd v AE Limehouse Ltd: HL 1992

If one party, knowing that another wishes to serve process upon him, requests or authorises the other to do so in a particular way which is outside the Rules and the other does so, then, unless the Rules themselves prohibit consensual service, the party so served cannot be heard to say that the service was not valid. In the circumstances of the present case the validity of the service would have been affirmed under Montgomery. Subsequent changes in the Rules of the Supreme Court have not introduced a prohibition of consensual service outside the Rules.

Judges:

Lords Bridge, Lowry, Templeman and Jauncey

Citations:

[1992] 2 AC 105

Statutes:

Companies Act 1985 725(1)

Jurisdiction:

England and Wales

Citing:

Cited – Montgomery, Jones and Co v Liebenthal and Co 1898
The court rejected the argument that the rules of court prohibited an agreement between the parties to adopt an arrangement for service which did not comply with the rules. . .

Cited by:

Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 17 May 2022; Ref: scu.182215

Ashe v Mumford and Others: ChD 7 Mar 2000

The Regulation under question was procedural;, and a failure to comply with its requirements was not to be deemed fatal. The requirement for a trustee to identify the transactions to be set aside did not require every single part of the scheme to be detailed, provided as in this case the purpose of the scheme was clearly to defeat creditors and the trustee in bankruptcy. The mother of a bankrupt purchased her council house with a fifty per cent discount, and was funded as to the rest by the bankrupt’s wife.

Citations:

Times 07-Mar-2000, Gazette 09-Nov-2000

Statutes:

Insolvency Rules 1986 (1986 No 1925) 7.3

Cited by:

Appeal from – Ashe v Mumford CA 2001
The court considered the relative interests arising in the trust of a house bought under the right to buy scheme.
Held: The court upheld the trial judge’s decision that the discount should not be apportioned between the parties, the series of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 17 May 2022; Ref: scu.77892

Ashmore and Others v Corporation of Lloyds: HL 13 May 1992

A Judge’s interlocutory order for the trial of a preliminary point could be set aside only if it was clearly wrong: ‘In my opinion, when a judge alive to the possible consequences decides that a particular course should be followed in the conduct of the trial in the interests of justice, his decision should be respected by the parties and upheld by an appellate court unless there are very good grounds for thinking that the judge was plainly wrong.’ and ‘Litigants are not entitled to the uncontrolled use of a trial Judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial Judge’s time as is necessary for the proper determination of the relevant issues.’
There is an overriding duty on lawyers to assist in the prompt and economical disposal of litigation.
Lord Templeman referred to previous case where he had ‘warned against proceedings in which all or some of the litigants indulge in over-elaboration causing difficulties to judges at all levels in the achievement of a just result. He also said that the appellate court should be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in the course of a trial the decision should be respected by the parties and if not respected should be upheld by an appellate court unless the judge was plainly wrong . . An expectation that the trial would proceed to a conclusion upon the evidence [that the party wishing to call are sought] to be adduced is not a legitimate expectation. The only legitimate expectation of any plaintiff to receive justice. Justice can only be achieved by assisting the judge and accepting his rulings.’

Judges:

Lord Templeman, Lord Roskill

Citations:

Gazette 13-May-1992, [1992] 2 All ER 486, [1992] 1 WLR 446, [1992] 2 Lloyds Rep 1

Cited by:

Cited – Noorani v Merseyside TEC Limited CA 19-Oct-1998
The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 17 May 2022; Ref: scu.77897

Arab Monetary Fund v Hashim and Others (No 8): ChD 17 Jun 1993

Leave to amend was given to the defendant to add a claim for a contribution. It was not an issue of fact. The statute did not imply any assumption that the defendant would would not maintain a defence. Matters of foreign law were not part of the facts of a case.

Judges:

Chadwick J

Citations:

Times 17-Jun-1993, [1993] CLY 3134

Statutes:

Civil Liability (Contribution) Act 1978 1, Supreme Court Act 1981 69(5), Rules of the Supreme Court Ord 18 r 7(1)

Damages, Litigation Practice

Updated: 17 May 2022; Ref: scu.77849

Arab Monetary Fund v Hashim and Others (Number 9): ChD 29 Jul 1994

There were two foreign defendants who were each liable to the plaintiff.
Held: The English court had jurisdiction to allocate the damages between them. Execution should not be stayed because the plaintiff should be allowed to retain the opportunity to commence that part of the proceedings, ie execution, in such jurisdiction as he thought fit.

Judges:

Chadwick J

Citations:

Times 11-Oct-1994, [1994] CLY 3555

Statutes:

Civil Liability (Contributions) Act 1978, Civil Evidence Act 1968 2 4 6

Cited by:

Cited – IS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
Cited – Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others CA 28-May-1999
The defendants having been found to have acted dishonestly to the tune of pounds 130,000,000 sought a stay of execution pending an appeal. The judge had found that the appeal was arguable. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence, Limitation

Updated: 17 May 2022; Ref: scu.77850

Annodeus Ltd and Others v Gibson and Others: ChD 2 Mar 2000

The court listed relevant issues for any strike out application on the grounds of want of prosecution, including the length of delay, the degree of compliance with court rules and orders, any prejudice to the defendant, and any effect on the trial and other parties, any contribution by the defendant to the delay, the respective conduct of the claimant and defendant, and any other relevant factors

Judges:

Neuberger J

Citations:

Times 03-Mar-2000

Cited by:

Questioned – La Baguette Ltd and Others v Audergon CA 23-Jan-2002
Judges should be careful not to create judicial checklists which added a gloss to the civil procedure rules. The claimant’s action had been stayed automatically for not having progressed for a year. The judge applied the checklist in Annodeus to . .
Cited – Ministry of Defence v Foxley and others Admn 10-Dec-2007
In 1992, the claimant and members of his family were made subject to restraint orders after his conviction for corruption. They now applied for discharge of the orders claiming excessive delay. Nothing had moved forward since 1996, saying hey had in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 May 2022; Ref: scu.77803

All-In-One Design and Build Ltd v Motcomb Estates Ltd and Another: QBD 4 Apr 2000

The new civil procedure rules could impose sanctions or penalties on parties who failed to act in accordance with the spirit of the rules. The word ‘interest’ when allowing a judge to award interest by way of a penalty for the failure to accept a reasonable offer was not the same as the interest awarded on a judgement.

Citations:

Times 04-Apr-2000

Statutes:

Civil Procedure Rules 36.21

Litigation Practice

Updated: 17 May 2022; Ref: scu.77762

Allergan Inc and Another v Sauflon Pharmaceuticals Ltd: PatC 24 Feb 2000

A claimant in patent infringement proceedings sought leave to join in the defendant’s Spanish supplier as a joint tortfeasor. The application was refused because before exposing a foreign party to the expense of defending such proceedings there had to be shown an arguable case. Here what was shown was compatible with proper acts of a supplier supporting his customer with information as to the product being sold, the market and providing information which might assist the defendant to defend.

Citations:

Gazette 24-Feb-2000, Times 15-Mar-2000, [2000] EWHC Patents 168

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Intellectual Property

Updated: 17 May 2022; Ref: scu.77747

Aldridge v Edwards: CA 16 Mar 2000

The claimant said she had been falsely imprisoned by the defendant taxi driver.
A stay prevented a party from moving forward in proceedings, but did not stop time running for all purposes, including under CCR Ord 7 rule 20 which was a self contained code for extending the period of validity of a summons.

Citations:

Times 28-Mar-2000, [2000] EWCA Civ 78

Links:

Bailii

Statutes:

County Court Rules 1981 Order 7 Rule 20

Jurisdiction:

England and Wales

Litigation Practice, Torts – Other

Updated: 17 May 2022; Ref: scu.77713

The Popi M; Rhesa Shipping Co SA v Edmonds: 1983

The parties disputed the cause of the loss of a ship. The experts suggested different but improbably explanations; each supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. The owners of the ship claimed against underwriters for her total loss which had occurred in calm weather. It became common ground that the vessel had sunk because of an ingress of sea water through a hole in the side plating. Underwriters contended that the vessel had been unseaworthy and that had been the proximate cause of the entry of water. The court made no finding that the vessel was seaworthy or that she was unseaworthy; he was left in doubt. The owners put forward a case that the hole in the side plating had been caused by contact with a submerged and moving submarine by eliminating other possibilities; the judge concluded that contact with a moving submarine was so improbable that if he were to conclude that it was the likely cause of the loss he had to be satisfied that any other explanation for the casualty had to be ruled out. The underwriters put forward a case that the hole had arisen through wear and tear and provided a detailed explanation as to how that had happened. The judge rejected that detailed explanation and was therefore left with a choice between the owner’s submarine hypothesis and the possibility that the casualty occurred as a result of wear and tear but by means of a mechanism which remained in doubt.
Held: Bingham J referred to the dictum of Sherlock Holmes: ‘How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?’ He concluded that, despite the inherent improbability and despite the disbelief with which he had been inclined to regard it, the collision with the submarine had to be accepted on the balance of the probabilities as the explanation of the casualty.

Judges:

Bingham J

Citations:

[1983] 2 Lloyd’s Rep 235

Cited by:

At First Instance – Rhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
Cited – Ide v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Updated: 17 May 2022; Ref: scu.267224

Re Evans: 1986

Citations:

[1986] 1 WLR 101

Cited by:

Cited – 3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others ChD 25-Jul-2007
The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 May 2022; Ref: scu.259675

Phosphate Sewage Co Ltd v Molleson: 1879

For an action making a collateral attack on a previous decision not to be an abuse of process the evidence had to be ‘fresh’ i.e. unavailable at the time of the first hearing, and the ‘new evidence must be such as entirely changes the aspect of the case’

Judges:

Earl Cairns LC

Citations:

(1879) 4 App Cas 801

Cited by:

Cited – Simms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 May 2022; Ref: scu.248045

C H Giles and Co v Morris: 1972

Megarry J considered why a court should be reluctant to create an obligation to continue a business where a court might be asked to judge compliance:: ‘difficulties of constant superintendence’ were a ‘narrow consideration’ because ‘there is normally no question of the court having to send its officers to supervise the performance of the order . . . . Performance . . . is normally secured by the realisation of the person enjoined that he is liable to be punished for contempt if evidence of his disobedience to the order is put before the court; . . .’

Judges:

Megarry J

Citations:

[1972] 1 WLR 307

Jurisdiction:

England and Wales

Cited by:

Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 May 2022; Ref: scu.247892

In re Brisbane City Council and White: 1981

The use of the the phrase ‘without prejudice’ was ‘futile’ in the context of an originating process.

Citations:

(1981) 50 LGRA 225

Jurisdiction:

Australia

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: 17 May 2022; Ref: scu.243288

Thompson Newspapers Ltd v Director of Investigation and Research: 1990

(Supreme Court of Canada) The court considered a claim to exercise the privilege against self-incrimination.
Held: Whereas a compelled statement is evidence that would not have existed independently of the exercise of the powers of compulsion, evidence which exists independently of the compelled statements could have been found by other means and its quality does not depend on its past connection with the compelled statement. Accordingly evidence of the latter type is in no sense ‘testimonial’ and PSI ought not to attach to it.
Justice La Forest: ‘there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence which could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the ‘clues’ provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been . . . the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernible. I believe its significance will be equally apparent.
The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused.. . . What prejudice can an accused be said to suffer from being forced to confront evidence ‘derived’ from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact.’ and
‘In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge’s discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind …”
. . . In our judgment, the answer to the question posed by the Attorney General is ‘No’. We say that for a number of reasons. First, there is no doubt, and indeed it is not disputed before this court, that the privilege against self-incrimination is not absolute and in English law Parliament has, for a variety of reasons, in a whole range of different statutory contexts, made inroads upon that privilege.
So far as the English courts are concerned, there is, as it seems to us, no doubt that the documents to which we have referred would be regarded as admissible as a matter of law, subject of course to the trial judge’s discretion to exclude under section 78 of the Police and Criminal Evidence Act 1984.
The question which next arises is whether, in deference to the Strasbourg jurisprudence, this court should give a different answer to that which the English courts and the will of Parliament otherwise suggest. It seems to us that the distinction made in paragraphs 68 and 69 of the European Court of Human Rights’s judgment in Saunders’s case 23 EHRR 313, between statements made and other material independent of the making of a statement, is not only one to which we should have regard, but is one which, as it seems to us, is jurisprudentially sound. We say this for the reasons advanced in the judgment of La Forest J in the Thomson Newspapers case 67 DLR (4th) 161 which, via reference to the South African constitutional court’s decision in Ferreira v Levin 1996 (1) SA 984, was before the European Court in Saunders’s case. In our judgment, there is nothing in any of the speeches in Brown v Stott [2001] 2 WLR 817 which contradicts this conclusion. The Privy Council were seeking to limit the scope of the privilege against self-incriminating statements and pre-existing documents revealed by compelled statements were outwith their consideration.’

Judges:

Justice La Forest

Citations:

(1990) 54 CCC 417

Cited by:

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

Commonwealth, Litigation Practice

Updated: 17 May 2022; Ref: scu.242453

In re Konigsberg (A Bankrupt): 1989

The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s entitlement to legal professional privilege vests in the trustee so that neither the bankrupt nor the bankrupt’s solicitor can claim privilege under examination.
Peter Gibson J said: ‘Finally I return to the first ground on which Mr Walker relies for his submission that privilege cannot be asserted by Mrs Konigsberg against the trustee. Mr Walker referred me to the following passage in Phipson on Evidence, 13th ed., para.15-11, under the heading ‘Joint retainer’: ‘When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other – e.g. a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though it is otherwise as to communications made to the solicitor in his exclusive capacity.’
Thus if the communication with or from the solicitor in his joint capacity must be disclosed, privilege cannot be asserted by one of the two parties against the other in proceedings against each other. This is established by Shore v. Bedford (1843) 5 M. and G. 271. In that case the plaintiff having a claim against the defendant went with the defendant to the plaintiff’s solicitor, who agreed to write on the defendant’s behalf to a third party. The defendant made a statement in the plaintiff’s presence to the solicitor and the plaintiff subsequently brought an action against the defendant. It was held that the statement was not a privileged communication and questions could be asked of the solicitor’s clerk as to what had been said.’

Judges:

Peter Gibson J

Citations:

[1989] 1 WLR 1257

Jurisdiction:

England and Wales

Citing:

Cited – Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd 1972
The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to . .

Cited by:

Approved – 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 – Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
Cited – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Insolvency

Updated: 17 May 2022; Ref: scu.240160

Bumper Development Corporation Ltd v Commissioner of Police of the Metropolis: CA 1991

An Indian temple having a legal persona recognised in India may assert rights and make claims under English Law. Even though it would not be recognised as a litigant if based in England and Wales, it was nonetheless entitled, in accordance with the principle of comity of nations, to sue in England.
Purchas LJ said: ‘The particular difficulty arises out of English law’s restriction of legal personality to corporations or the like, that is to say the personified groups or series of individuals. This insistence on an essentially animate content in a legal person leads to a formidable conceptual difficulty in recognising as a party entitled to sue in our courts something which on one view is little more than a pile of stones.’
Issues of foreign law are issues of fact. However, they are a special kind of fact. The Court is entitled to apply its own legal knowledge to determining the issue. However, it is confined to materials on foreign law which are exhibited to an expert report. The court considered the approach to be taken where there was conflicting evidence as to foreign law. The court must resolve differences in the same way as in the case of other conflicting evidence as to facts. It is not permissible to reject uncontradicted expert evidence unless it is patently absurd.

Judges:

Purchas LJ

Citations:

[1991] 1 WLR 1362, [1991] 4 All ER 638

Jurisdiction:

Commonwealth

Cited by:

Cited – Lloyd v Svenby QBD 27-Feb-2006
The two claimants sought title to a car registration plate and to a chassis number. They were to be applied to historic racing cars.
Held: The power to assign registration marks lay with the Secretary of State. Any legal rights rested not with . .
Cited – Regina v D(R) Misc 16-Sep-2013
Crown Court at Blackfriars – the court was asked to what extent a witness wanting, from religious conviction, to hide her face with the niqaab form of Islamic dress should be allowed to do so, whilst giving evidence.
Held: The court considered . .
Cited – XP v Compensa Towarzystwo Sa and Another QBD 13-Jul-2016
The claimant had been injured in two separate car accidents suffering physical and psychiatric injuries. Liability was admitted but the insurers coud not agree apportionment of losses. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 17 May 2022; Ref: scu.238747

Regina v International Stock Exchange, ex parte Else (1982) Ltd: CA 1993

The court gave guidance on the circumstances under which questions should be referred to the European Court of Justice.

Judges:

Sir Thomas Bingham MR

Citations:

[1993] QB 534

Jurisdiction:

England and Wales

Cited by:

Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Cited – Horvath, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs Admn 21-Jul-2006
The claimant sought to challenge the validity of the 2004 Regulations whereby the payment under the Single Payment Scheme was reduced because of the existence of a public right of way across the land.
Held: ‘there are cogent arguments for the . .
Lists of cited by and citing cases may be incomplete.

European, Litigation Practice

Updated: 17 May 2022; Ref: scu.237704

Haynes v Doman: CA 1899

A former servant entered into new employment carrying with him the trade secrets, with the constant risk of divulging them to rival manufacturers. The position of the expert witness was challenged.
Held: An expert witness may not give evidence on the ultimate issue in the proceedings.
As to contracts in restraint of trade, Lindley MR LJ said: ‘Such agreements cannot be properly held to apply to cases which, although covered by the words of the agreement, cannot be reasonably supposed ever to have been contemplated by the parties, and which on a rational view of the agreement are excluded from its operation by falling, in truth, outside, and not within, its real scope. But, even if some extreme case of a technical breach producing no injury to the party to be protected could be proved, sound principle requires, not that the agreement should be void in toto, but only in so far as it is really unreasonable. Even if the restriction could not be so construed as to exclude such a case, no jury would give the plaintiff any damages, and no judge would grant him an injunction. In such an extreme case the defendant is sufficiently protected against oppression without holding the agreement void in toto, and I am unable to see that public policy requires more.’

Judges:

Lindley MR L

Citations:

[1899] 2 Ch 13

Jurisdiction:

England and Wales

Cited by:

Cited – Leeds Rugby Ltd v Harris and Bradford Bulls Holdings Limited QBD 20-Jul-2005
The claimant sought damages from the defendants saying that the second defendant had induced a breach of contract by the first when he left to play rugby for the second defendant.
Held: The contract could not be said to be void as an agreement . .
Cited – Bluebell Apparel Ltd v Dickinson SCS 14-Oct-1977
The former employee challenged a restriction on his post employment career.
Held: The restriction was world-wide and as such tooo wide, and unenforceable. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 17 May 2022; Ref: scu.229007

Lawrence v Lord Norreys: HL 1890

The plaintiff brought an action for recovery of possession of an estate, relying on events which had occurred 70 years earlier. The plaintiff had already brought a case which was dismissed on the grounds that it was statute-barred. The plaintiff then sought to start another case based on an allegation of concealed fraud. That was struck out as frivolous.
Held: The court set out the principles involved in exercise of its discretion to strike out under the summary procedure and prevent a case from proceeding to a trial. The claim was struck out as involving ‘a tissue of improbabilities ‘which ought not to be sent to proof: ‘It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional circumstances. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved.’

Judges:

Lord Herschell

Citations:

(1890) 15 AC 210

Jurisdiction:

England and Wales

Cited by:

Cited – Guinness Peat Group Plc v British Land Company Plc and others CA 18-Dec-1998
The claimant, a minority shareholder, had said that the defendant had acted prejudicially in transferring the company’s only substantial asset to another company. The respondent said that since the shares had always been of nil value they could not . .
Cited – Wenlock v Moloney CA 1965
The plaintiff alleged a conspiracy to deprive him of his shares and interest in a company. Each side filed affidavit evidence raising issues of fact. With no oral evidence or cross examination on the affidavits, the Master, after a four day hearing, . .
Cited – Hess v Horncastle Properties Limited WA Horncastle (Builders) Limited CA 6-Nov-1998
It was alleged that signatures on plans attached to a conveyance were not those of the party. A witness said that only the document itself had been signed. They now appealed against a strike out of their claim.
Held: ‘it will be only in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 May 2022; Ref: scu.228984

Okotcha v Voest Alpine Intertrading GmbH: CA 1993

When deciding whether to order security for costs, the possibility or probability that the plaintiff company will be deterred from pursuing its claim is not the sole deciding factor.

Judges:

Bingham LJ

Citations:

[1993] BCLC 474

Jurisdiction:

England and Wales

Cited by:

Cited – Keary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 17 May 2022; Ref: scu.225882

John Zinc Co Ltd. v Wilkinson: CA 1973

Bearing in mind the seriousness of the allegation, proper and full particulars of an allegation of fraud must be set out in the pleadings.

Citations:

[1973] RPC 717

Jurisdiction:

England and Wales

Cited by:

Cited – BHB Enterprises Plc v Victor Chandler (International) Ltd ChD 27-May-2005
The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 May 2022; Ref: scu.225999

Freightex Ltd v International Express Co Ltd: CA 15 Apr 1980

Dunn L.J: ‘I do not think that a liquidator or an assignee from a liquidator should be put on terms either by way of security for costs or otherwise as a condition of enforcing an assigned claim.’ the other court members thought it was inappropriate to impose such a condition in that particular case.

Judges:

Dunn LJ, Stephenson L.J. and Sir Stanley Rees

Citations:

Transcript No. of 1980, Unreported, 15 April 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Norglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 16 May 2022; Ref: scu.223199

NWL Ltd v Woods: HL 1979

The phrase ‘trade dispute’ was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: ‘It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them. This history I would summarise as a shifting pattern of Parliamentary assertions and judicial responses-a legal point counter-point which has been more productive of excitement than of harmony.’
Lord Fraser considered the basis for granting interlocutory injunctions. The strength of the prima facie case is one a factor of which to take account in weighing the competing considerations.
Lord Diplock spoke of the basis for granting interlocutory injunctions: ‘. . . when properly understood, there is in my view nothing in the decision of this House in American Cyanamid Company v. Ethicon Limited to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Company v. Ethicon Limited, which enjoins the judge on an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of which ever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party’s interest to proceed to trial. . .’

Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction has been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this House in American Cyanamid v. Ethicon Limited. Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other’.
And
‘Where … the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.’

Judges:

Lord Scarman, Lord Diplock

Citations:

[1979] 1 WLR 1294, [1979] ICR 867, [1979] 3 All ER 614

Jurisdiction:

England and Wales

Citing:

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 . .

Cited by:

Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
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.

Employment, Litigation Practice

Updated: 16 May 2022; Ref: scu.223723

Curtin v Barton: 1893

(New York) ‘When a court with competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the protection of private rights should not be defeated or embarrassed by questions relating to the title of the judge who presides in the court, to his office.’

Citations:

(1893) 139 NY 505

Cited by:

Cited – Fawdry and Co (A Firm) v Murfitt CA 14-May-2002
The judge at first instance who was ticketed to sit as a judge in the Technology and Construction Court, had been asked to sit as a judge of the High Court to take this case. The appellant said she was acting outside her powers.
Held: The . .
Cited – Baldock v Webster and Others CA 21-Dec-2004
The claimant alleged negligence against his solicitors in having failed to challenge an order made ultra vires by a county court judge.
Held: The common law doctrine of de facto jurisdiction validated the decision of the judge. The recorder . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 16 May 2022; Ref: scu.221428

Re Bullard and Taplin Ltd: ChD 1996

Tne question of whether there was at any time ‘pending court proceedings’ was answered by asking if there existed a court file. The section empowered a court itself to appoint another trustee in bankruptcy. Section 41 of the 1984 Act could be used by the HighCourt to take some control over proceedings for an individual voluntary arrangement in the County Court.

Judges:

Knox J

Citations:

[1996] BCC 973

Statutes:

Insolvency Act 1986 303, County Courts Act 1984 41(1)

Cited by:

Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Cited – In Re Sutton (Removal of Liquidator) ChD 17-Oct-1997
The insolvency practitioner held many appointments. His partnership in a large firm of accountants ended suddenly. He did not have the resources to handle the cases, and nor could acceptable arrangements be made for him to have access to the related . .
Cited – In Re A and C Supplies Limited ChD 17-Oct-1997
Applications were made for the removal of a liquidator from several appointments in corporate nd individual insolvencies. He had been a partner in a firm and that had ceased in a way which left it impossible to work with his former partners to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 16 May 2022; Ref: scu.216396

Suhner and Co AG v Transradio Ltd: 1967

The claimants complained at the defendant having registered a company under the name ‘Suhner’. The defendants gave no justification for using the word ‘Suhner’ as part of their name. They claimed that they had the right to form a company in order to try to stop the plaintiffs trading in this country under their own name.
Held: They were not, and an injunction was granted. Unless the confidential information sought to be protected by an action is properly identified, an injunction in the resulting unclear terms will have uncertain scope and be difficult to enforce: identification of what the information at issue was and whether it was confidential would have to be determined on a contempt motion. As to what information was confidential: ‘A great deal of the defendants’ evidence seems to me to be really beside the point, first of all, because the confidential nature of the document is not dependent on whether the information which it contains is available elsewhere; but, on the question of whether it contains useful information which has been compiled by the plaintiffs for a particular purpose and, if it does contain such information and if it has been compiled and handed over to the defendants for a particular purpose, then, as I understand the law, that document is confidential and the defendants are not entitled to use it for another purpose’.

Judges:

Plowman J

Citations:

[1967] RPC 329

Citing:

Applied – Saltman Engineering Co v Campbell Engineering Co Ltd CA 1948
The plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to . .

Cited by:

Cited – Marketmaker Beijing Co Ltd and others v CMC Group Plc and others QBD 8-Oct-2004
Interim injunctions had been obtained to prevent the defendants carrying out certain banking transactions.
Held: The remedy sought and the claim was extravagant and unlikely to succeed. The injunctions should be discharged. It was not at all . .
Cited – EPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another ChD 21-Dec-2004
The claimant had developed an additive which would assist in making plastic bags bio-degradable. They alleged that, in breach of confidentiality agreements, the defendants had copied the product. The defendants said the confidentiality agreement was . .
Cited – British Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 16 May 2022; Ref: scu.216389

Chainrai v Boston: 11 Jul 2002

Judges:

Henriques J

Citations:

Unreported, 11 July 2002

Jurisdiction:

England and Wales

Cited by:

Dsitinguished – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
Doubted – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.199956

Shearson Lehman Hutton v Maclaine Watson (No 2): 1990

When a court orders repayment of a sum, with interest the rate of interest may be the commercial rate, which would normally be 1% above base rate, but is variable on appropriate evidence.

Citations:

[1990] 3 All ER 723

Citing:

See Also – Shearson Lehman Hutton Inc and Another v Maclaine Watson and Co Ltd and Others 1989
The court considered the requirements of natural justice in the light of the decision in Gaiman: ‘Nor do I consider my conclusions to be inconsistent with the decision of Megarry J in [Gaiman] because Megarry J held that the principles of natural . .

Cited by:

Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Adcock v Co-Operative Insurance Society Ltd CA 26-Apr-2000
The claimant claimed under his fire insurance with the defendants. He sought damages for their delay in processing the claim.
Held: The power to award interest on damages is discretionary. The judge had refused to allow interest, at a rate . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages

Updated: 16 May 2022; Ref: scu.199275

Regina v National Insurance Commissioner, ex parte Social Services Secretary: CA 1981

The court emphasised the need for consistency in relation to decisions of a social service commissioner.

Judges:

Denning LJ

Citations:

[1981] 1 WLR 1017

Jurisdiction:

England and Wales

Cited by:

Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.199756

Hodson v Walker: CEC 1872

Premises known as the Red Lion Inn, Grasmere and certain outbuildings were let. In February 1852, Walker allowed one Usher, who owned the Red Lion Inn, to build a shed on his (Walker’s) adjoining land in return for a rent of 1s. a year. In November 1852, Usher demised the Red Lion Inn to Hodson and the lease included the shed. In 1870 Walker brought proceedings against Usher for possession of the shed. He obtained judgment and a warrant was issued to the bailiff who recovered possession on Walker’s behalf. Hodson, who thereby lost possession, brought proceedings for trespass. At trial Martin B ruled that Hodson had no cause of action on the basis that the order of the County Court bound him as well as Usher. Application was made to the Court of Exchequer Chamber to discharge the rule.
Held: Pigott B: the statutory provisions giving the County Court power to make an order for possession did not bind persons who were not party to the proceedings and that accordingly the rule had to be discharged. It was arguable that Hodson could bring an action in trespass where the superior landlord had obtained judgment against the intermediate tenant. He must have accepted that Hodson was not bound by the judgment against Usher because, if he had been, that would have been a complete answer to his claim in trespass. Channell B, approving Doe v Earl of Derby: A verdict which is evidence against A is not admissible against B on the ground that B claims under A unless B acquired his interest from A’s title subsequent to the verdict. The rule made by Martin B at trial had to be discharged. He came to the same conclusion as Pigott B on the question of statutory interpretation. Martin B, sitting on the application to discharge the rule he had himself made: Dissented on the question of statutory construction. He did not refer to the question of estoppel per red judicatam. Estoppel per rem judicatam cannot bind a person who claims under the person against whom a judgment was obtained, unless he obtained his interest from that person after the judgment was given.

Judges:

Channell B, Martin B, Piggott B

Citations:

(1872) LR 7 Exch 55

Jurisdiction:

England and Wales

Citing:

Approved – Doe v The Earl of Derby 1834
For a plea of res judicata to arise as between claimants to the title to goods, the same title must have come into question in both actions, because there must be an identity of interest between the party to the first action and the party to the . .

Cited by:

Cited – Wiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.198729

Cheltenham and Gloucester Building Society v Ricketts: CA 1993

The court set out the principles to be applied when considering cross undertakings in damages: ‘(1) Save in special cases an undertaking as to damages is the price which the person asking for an interlocutory injunction has to pay for its grant. The court cannot compel an applicant to give an undertaking but it can refuse to grant an injunction unless he does. (2) The undertaking, though described as an undertaking as to damages, does not found any cause of action. It does, however, enable the party enjoined to apply to the court for compensation if it is subsequently established that the interlocutory injunction should not have been granted. (3) The undertaking is not given to any party enjoined but to the court. (4) In a case where it is determined that the injunction should not have been granted the undertaking is likely to be enforced, though the court retains a discretion not to do so.’ Although if a defendant successfully applied for such an injunction to be discharged, the court would normally make an order for an enquiry as to damages, the making of such an order was a matter of discretion and not of right.

Judges:

Neill LJ, Gibson LJ

Citations:

[1993] 4 All ER 276

Jurisdiction:

England and Wales

Cited by:

Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.192634

Joyce v Yeomans: CA 1981

The court discussed how an appellate court should defer to the assessment of a judge at first instance of the value of an expert witness.
Brandon LJ said: ‘even when dealing with expert witnesses, a trial judge has an advantage over an appellate court in assessing the value, the reliability and the impressiveness of the evidence of the experts called on either side. There are various aspects of such evidence in respect of which the trial judge can get the ‘feeling’ of a case in a way in which an appellate court, reading the transcript, cannot. Sometimes expert witnesses display signs of partisanship in the witness box or lack of objectivity. This may or may not be obvious from the transcript, yet it may be quite plain to the trial judge. Sometimes an expert witness may refuse to make what a more wise witness would make, namely, proper concessions to the viewpoint of the other side. Here again this may or may not be apparent from the transcript, although plain to the trial judge. I mention only two aspects of the matter, but there are others.’

Judges:

Brandon LJ

Citations:

[1981] 1 WLR 549, [1981] 2 All ER 21

Jurisdiction:

England and Wales

Cited by:

Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.187269

SS Hontestroom v SS Sagaporack: HL 1927

The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to reverse conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should be let alone.
Viscount Sumner said: ‘What then is the real effect on the hearing in a Court of Appeal of the fact that the trial judge saw and heard the witnesses? I think it has been somewhat lost sight of. Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII, r. 1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less not to have seen the witnesses puts appellate Judges in a permanent position of disadvantage as against the trial Judge and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at merely on the results of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.’
. . and ‘If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should . . be let alone.’

Judges:

Lord Sumner

Citations:

[1927] AC 37, [1927] All ER 831, 136 LT 33

Jurisdiction:

England and Wales

Citing:

Cited – Bland v Ross (Ship Julia) (Admiralty) PC 1860
The court considered the care needed in an appellate court in reversing a decision on the facts. Lord Kingsdown said that: ‘They, who require this Board, under such circumstances to reverse a decision of the court below upon a point of this . .

Cited by:

Cited – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – The Ikarian Reefer CA 1995
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Harracksingh v The Attorney General of Trinidad and Tobago and PC Neville Adams PC 15-Jan-2004
(Trinidad and Tobago) The appellant had succeeded in a claim for damages against the police for false imprisonment and assault. He now appealed a reversal of that decision. The judge had been doubtful as to the value of the police evidence. The . .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .
Approved – Powell v Streatham Manor Nursing Home HL 1935
Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Approved – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.187257