Category: Litigation Practice

Commissioners of Customs and Excise v Eastwood Care Homes (Ilkeston) Ltd and Others: QBD 7 Mar 2000

Under the new litigation regime, the objective of serving justice required a fundamentally different approach to applications for extension of time for service of a notice of appeal. Under the earlier system inadvertence by a legal representative might well be fatal to such an application, but not so now.

Citations:

Times 07-Mar-2000

Litigation Practice

Updated: 15 May 2022; Ref: scu.79325

Cleveland Structural Engineering (Hong Kong) Ltd v Advanced Specialist Treatment Engineering Ltd: ComC 7 Feb 2000

An arbitration claim is said to be commenced when the claim is filed, and not when served. Because of this the respondents to an appeal in such proceedings were to be allowed to see the papers filed in support of an application for leave to appeal, as persons who were an interested party in such an application.
ComC Circumstances in which there may be inspection of arbitration claim forms filed in the Commercial Court Registry which have not yet been served on the respondent. Application of CPR 5-4(1) and (2).

Judges:

Colman J

Citations:

Times 07-Feb-2000, [2000] 1 WLR 558, [2000] 2 All ER (Comm) 189

Arbitration, Litigation Practice

Updated: 15 May 2022; Ref: scu.79219

Cobra Golf Inc and Another v Rata and Others: ChD 11 Oct 1996

An Anton Piller order was wrongfully made where it was used in order to get information to found a later prosecution. The privilege against self incrimination is available under Section 14 of the 1968 Act in contempt proceedings despite the fact that they are not criminal proceedings. Rimer J said: ‘the privilege remains intact and the basic principle still is that an Anton Piller [disclosure] order should not be made which includes provisions foreseeably likely to require the defendant to incriminate himself.’

Judges:

Rimer J

Citations:

Times 11-Oct-1996, [1998] Ch 109, [1996] FSR 819

Statutes:

Civil Evidence Act 1968 18

Citing:

Cited – Tate Access Floors Inc v Boswell 1991
Senior employees were suspected of misappropriating the company’s funds.
Held: The authorities did not establish the wide proposition that where a defendant agrees to act as a fiduciary, he impliedly contracts not to raise the claim to the . .

Cited by:

Cited – The Coca-Cola Company and Another v Cengiz Aytacli and others ChD 30-Jan-2003
The claimant having succeeded in an action against the defendants, now sought an order for their committal for contempt, accusing them of having given false evidence, and of having failed to comply with court orders made. The defendant asserted a . .
Cited – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.79251

Edwards (Inspector of Taxes) v Bairstow: HL 25 Jul 1955

The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only reasonable conclusion’ contradicted that decision.
The House set out principles for establishing that decisions of a commissioner were ones of law, and were reviewable by an appellate court. Whether facts as found or admitted fall on one side or the other of some conceptual line drawn by the law is a question of fact.
Lord Radcliffe said that ‘Perversity’ in a decision means that ‘the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination.’
Viscount Simonds said: ‘For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarized by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.’
Lord Radcliffe criticised the tendency of courts to treat questions as ‘pure questions of fact’, so as to exclude review: ‘As I see it, the reason why the courts do not interfere with the Commissioners’ findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the Commissioners of greater experience in the matters of business or any other matters. The reason is simply that by the system that has been set up the Commissioners are the first tribunal to try an appeal, and in the interest of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The Court is not a second opinion where there is a reasonable ground for the first. But there is no reason to make a mystery about the subjects that Commissioners deal with or to invite the courts to impose any exceptional restraint on themselves because they are dealing with cases that arise out of facts found by the Commissioners. Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.’ and ‘I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three …’ As to the commissioners findings of fact: ‘Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.’
HL Income Tax, Schedule D-Purchase and sale of cotton spinning plant – Isolated transaction – Whether adventure in nature of trade.

Judges:

Lord Radcliffe, Viscount Simonds

Citations:

[1956] AC 14, [1955] 3 All ER 48, [1955] 36 Tax Cas 207, [1955] UKHL 3, [1955] UKHL TC – 36 – 207, 36 TC 207

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Rowland v Boyle (Inspector of Taxes) ChD 11-Apr-2003
An accountant was accused of having made fraudulent claims for interest relief. He appealed from the special commissioners.
Held: Where the taxpayer was a professional person of previous good character, the standard of proof required before a . .
Cited – Camas Plc v HM Inspector of Taxes ChD 7-Jul-2003
An investment company sought to set against its liability to corporation tax, the various costs of taking over another company. They argued that as an investment company these were not costs of the purchase and could be set against tax.
Held: . .
Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
Cited – New Angel Court Ltd v Adam (Inspector of Taxes) ChD 25-Jul-2003
The taxpayer company employed a subsidiary company through which it conducted its trade in land. It then sought to represent the profits from that subsidiary within its own accounts as trading profits for corporation tax purposes. The commissioner . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Office of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Regina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
Cited – Arnold (Inspector of Taxes) v G Con Ltd ChD 4-Mar-2005
The revenue appealed against an order by the general commissioners to grant to the taxpayer, a construction industry subcontractor, a fresh exemption certficate where he had been consistently late in submitting tax and NI payments of several . .
Cited – Sony Computer Entertainment Europe Ltd v Customs and Excise ChD 27-Jul-2005
The appellants had imported Playstation computer games. They appealed refusal of a rebate of 50 million euros paid in VAT before a reclassification of the equipment so as to make it exempt from VAT.
Held: ‘The effect of the annulment of a . .
Cited – Templeton (Inspector of Taxes) v Transform Shop Office and Bar Fitters Ltd ChD 15-Jul-2005
The contractor had not met its liabilities to pay PAYE. The general commissioners had nevertheless granted a construction industry certificate under sections 561 and 565, having found an informal agreement to allow late payments.
Held: No tax . .
Cited – Wisdom v Chamberlain (Inspector of Taxes) CA 8-Nov-1968
The taxpayer, a comic actor, bought silver bullion hoping it would act as a hedge against a possible deflation of the pound. The revenue sought to tax his profits on sale under Schedule D. He argued that the money, being from one transaction, did . .
Cited – Matthews and others v Kent and Medway Towns and Fire Authority and others HL 1-Mar-2006
Retained or part-time firefighters sought parity of working conditions with full time firefighters.
Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time . .
Cited – Yuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .
Cited – Arnold (Inspector of Taxes) v G Con Ltd CA 12-May-2006
The tax payer company had failed to send in pay as you earn and NI returns for three years. The commissioners had found this to be only a minor failure and that the company was entitled to an exemption certificate under the construction industry . .
Cited – Regina v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd HL 1993
One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance . .
Cited – H, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
Cited – Gaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
Cited – HM Revenue and Customs v Weight Watchers (UK) Ltd ChD 21-Jan-2008
The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support . .
Cited – McKnight (Inspector of Taxes) v Sheppard HL 18-Jun-1999
The taxpayer sought to set off against tax some pounds 200,000 spent defending professional disciplinary proceedings. The House was asked whether this was ‘money wholly and exclusively laid out or expended for the purposes of the trade.’
Held: . .
Cited – D’Souza v Director of Public Prosecutions HL 15-Oct-1992
The police went to detain the appellant under the 1983 Act. To do so they entered the property against her wishes. She resisted detention, and now appealed her conviction for assaulting the Police officers in the execution of their duty, saying that . .
Cited – Sugar v British Broadcasting Corporation and Another HL 11-Feb-2009
The Corporation had commissioned a report as to its coverage of Middle East issues. The claimant requested a copy, and the BBC refused saying that the report having been obtained for its own journalistic purposes, and that it was not covered by the . .
Cited – Gerrard v Staffordshire Potteries Ltd CA 2-Nov-1994
The plaintiff was injured when working for the defendants spraying glaze onto jars. A small foreign body was blown into her eye. She said that no eye protection had been suuplied as required by the regulations.
Held: The plaintiff’s appeal . .
Cited – Revenue and Customs v Smallwood and Another CA 8-Jul-2010
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – HM Revenue and Customs v A M Brander As Exec of The Will of The Late Fourth Earl of Balfour UTTC 16-Aug-2010
UTTC Inheritance tax – Exempt transfers and relief – Business property relief Replacement property – Deceased having liferent interest in family estate – Deceased declared to be fee simple proprietor of the . .
Cited – Daejan Investments Ltd v Benson and Others CA 28-Jan-2011
The landlord had set out to refurbish the building occupied by the defendant tenants. They began a consultation process for the repairs, but failed to complete it, and the tenants objected. The landlords now appealed against rejection of their . .
Cited – The Attorney General for Northern Ireland v Crawford and Another ChNI 4-May-2016
The AG sought leave to appeal against a decision by the tribunal for the removal of a trustee of a police charity.
Held: Permission was given. The decision of the tribunal was open to proper criticism. The appeal raised several important . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Judicial Review, Litigation Practice, Income Tax

Leading Case

Updated: 15 May 2022; Ref: scu.181055

Tabernacle Permanent Building Society v Knight: 1892

The court considered (obiter) it’s lack of jurisdiction to make an order directing arbitrators to state their award in the form of a special case, at a time when the award had already been published earlier on the same day and the arbitrators therefore had discharged their obligations in relation to it.

Citations:

[1892] AC 298

Jurisdiction:

England and Wales

Cited by:

Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 15 May 2022; Ref: scu.267522

E v Secretary of State for the Home Department etc: CA 2 Feb 2004

The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted.
Held: The view that appeals were restricted to issues of law might give rise to unfairness and was no longer correct. What might otherwise have been an appeal on the facts could become an issue of law. There were two conflicting sets of authorities. Irrationality or procedural irregularity or even in certain circumstances a mistake of fact can amount to an error of law. Appeals of law ‘are treated as encompassing the traditional judicial review grounds of excess of power, irrationality, and procedural irregularity.’ and ‘In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case ([1999] 2 AC 330). First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.’

Judges:

Master Of The Rolls Lord Justice Mantell Lord Justice Carnwath

Citations:

[2004] EWCA Civ 49, Times 09-Feb-2004, [2004] QB 1044, [2004] INLR 268, [2004] BLGR 463, [2004] 2 WLR 1351

Links:

Bailii

Statutes:

Nationality Immigration and Asylum Act 2002

Jurisdiction:

England and Wales

Citing:

Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Kibiti v Home Secretary CA 2000
The court took a strict approach to the issue of admission of evidence which might demnostrate that the decision under appeal was based upon an error of fact. The appellant was a citizen of the Congo who had been refused asylum and failed in his . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Regina v Criminal Injuries Compensation Board Ex Parte A HL 11-Mar-1999
A police doctor’s statement in a contemporary medical report that her findings were consistent with the claimant’s allegation had not been included in the evidence before the CICB when it rejected her claim for compensation.
Held: The decision . .
Cited – Regina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .
Cited – Regina v Secretary of State for the Environment, ex parte Powis CA 1981
Material not available to the decision maker should not normally be admitted on an application for a judicial review of that decision. The court described three categories of acceptable new evidence: (1) evidence to show what material was before the . .
Cited – Regina v Secretary of State For The Home Department, Ex Parte Launder HL 13-Mar-1997
The question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina on the Application of Ruslanas Bagdanavicius, Renata Bagdanaviciene v Secretary of State for the Home Department CA 11-Nov-2003
Failed Roma asylum applicants challenged an order for their return to Lithuania. There had been family objections to the mixed marriage leaving them at risk of violence from the local mafia, and an order for their return would infringe their article . .

Cited by:

Cited – Regina on the Application of Goldsmith v The London Borough of Wandsworth CA 27-Aug-2004
The claimant, a very elderly lady had lived in a residential home for some time. She fell and was admitted to hospital. The respondent said she could only leave the hospital to go to a nursing home. She and her family sought her return to the . .
Cited – Gungor, Regina (on the Application Of) v Secretary of State for the Home Department Admn 7-Sep-2004
The claimant made a further claim for asylum after his first claim had failed and his appeal rejected. He claimed that as a Kurd, he would face arrest if returned to Turkey. His passport had had a false visa stamp attached.
Held: While the . .
Cited – Mazrae v Secretary of State for Home Department CA 28-Jul-2004
The asylum applicant renewed his application for leave to challenge the finding that there was no sufficiently substantial risk to his life if he was returned to Iran, and to introduce new evidence. His account had been rejected as unreliable, but . .
Cited – HC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
Cited – HC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
Cited – Wildman, Regina (on the Application of) v The Office of Communications Admn 25-Jul-2005
The claimant sought judicial review of an order quashing the decision of the Office of Communications to refuse a radio licence.
Held: The court should be very cautious before quashing a decision as to the allocation of broadcasting licences. . .
Cited – British Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
Cited – McDougal, Regina (On the Application of) v Liverpool City Council Admn 22-Jul-2009
Right Questions asked on School Closure
The claimant sought to challenge the respondent’s decision to close a local school. The choice had been made on academic results and the number of vacancies.
Held: The application failed. The Council had complied with its obligation in . .
Cited – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
Cited – Djanogly v Westminster City Council CA 19-Apr-2011
The appellant challenged the defendant’s order imposing parking charges for motor-cycles. He challenged the assertion that the charges were properly part of a traffic management scheme, and secondly he attacked the findings of the respondent’s cost . .
Cited – Castletown Estates Ltd and Another v Welsh Ministers Admn 1-Nov-2013
The claimants challnged the decision of the respondents to refuse permission for the development of former industrial land for residential puroposes. The permission had been refused on the basis of flood maps which the claimants said were . .
Cited – IA (Iran) v The Secretary of State for The Home Department (Scotland) SC 29-Jan-2014
The appellant Iranian challenged refusal of his claim for asylum. He had been granted refugee status in Iraq and in Turkey by the United Nations commission, but on arrival in the UK, his asylum claim had been rejected on the basis of the credibility . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Immigration, Litigation Practice

Updated: 15 May 2022; Ref: scu.192593

Chorion Plc and Others v Lane: ChD 7 Apr 1999

A former executive director brought a claim for unfair dismissal in the Employment Tribunal. Chorion brought proceedings in the Chancery Division alleging wrongful acts committed by him while he was a senior executive.
Held: There was an overlap in the issues to be tried in both sets of proceedings, and it was wrong to have two tribunals investigating what are essentially the same facts. In case of an overlap between issues before an Industrial Tribunal and the High Court, the Tribunal matter should be stayed pending the outcome of the other case. Laddie J reached his conclusion that such an Order should be granted because: ‘it would be wrong for essentially the same serious issues to be run in two separate tribunals . . I have come to the conclusion, notwithstanding the powerful arguments advanced by Mr Collins, it would be wrong for essentially the same issues to be run in two separate tribunals. It seems to me that in view of the allegations of dishonesty which are to be found permeating the whole of this dispute it is right and proper that the issues should be determined in one set of proceedings. I am of the view that the preferable forum is the High Court.’

Judges:

Laddie J

Citations:

Times 07-Apr-1999, Gazette 26-May-1999, CH-1999 00233

Cited by:

Cited – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 15 May 2022; Ref: scu.79110

Amerada Hess and Others v C W Rome and Others: QBD 9 Mar 2000

The claimants had served proceedings on an agent who did not have authority to accept such service. They sought, out of time, leave to re-serve correctly, and also to add an additional cause of action which whilst now outside the limitation period arose out of the same facts.
Held: The first application was refused. The court could only so act if preconditions were met, particularly here that the claimant had acted promptly. He had not so acted, and the court had no discretion to allow the re-service. The application to amend was granted.

Citations:

Gazette 09-Mar-2000, Times 15-Mar-2000

Litigation Practice, Limitation

Updated: 15 May 2022; Ref: scu.77778

British and Commonwealth Holdings Plc (In Administration) v Barclays De Zoete Wedd Ltd; Same v Atlantic Computers Plc, David Mccormick and Others; Etc: ChD 13 Nov 1998

The fact that evidence had been obtained under compulsion was not sufficient reason to prevent its disclosure for other civil matters if the Rule’s requirements were met and it was necessary to achieve fairness or reduction in costs.

Citations:

Times 13-Nov-1998, Gazette 25-Nov-1998

Statutes:

Rules of the Supreme Court Order 24 R 13

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for Business Enterprise and Regulatory Reform v Sullman and Another ChD 19-Dec-2008
An application was made to disqualify as a company director a former director of Claims Direct Limited. He had been accused of several actions which might justify a disqualification.
Held: The court found misconduct but delayed a decision on . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.78606

Abbey National Plc v Frost (Stephen Leonard), Solicitors Indemnity Fund Ltd Intervening: ChD 5 Feb 1998

A plaintiff alleging negligence against a solicitor who had subsequently disappeared, could have substituted service on his professional insurers despite the fact that it was unlikely that that would bring the writ to his attention.

Citations:

Times 05-Feb-1998

Cited by:

Appeal from – Abbey National Plc v Frost (Stephen Leonard) Solicitors Indemnity Fund Intervening CA 19-Mar-1998
The Court may not allow substituted service on a fund indemnifying defendant where the chosen method of service will not bring the proceedings to the attention of actual proposed defendant. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.77600

Abraham and Another v Thompson and Others: ChD 12 May 1997

The court may issue a stay of proceedings pending disclosure of the source of funding of an action, without there needing to be any suggestion of champerty or other illegality. The first plaintiff was ordered to disclose to the 5th and 6th defendants on affidavit whether any, and if so what, third party or parties had provided all or any substantial part or parts of the money used to fund this action as regards costs incurred by him from the date when they were added as parties.

Judges:

Mr. Justice Lloyd

Citations:

Gazette 11-Jun-1997, Times 19-Aug-1997, Times 15-May-1997

Citing:

Appealed to – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Cited – Broxton v McClelland 6-Nov-1992
. .
Cited – Condliffe v Hislop and Another CA 3-Nov-1995
The plaintiff, a bankrupt, pursued libel proceedings. He was being financed by his mother who had limited resources. She undertook to pay any order for costs, but the Master ordered a stay under the inherent jurisdiction of the court to prevent . .
Cited – Grovewood Holding Plc v James Capel and Co Ltd ChD 15-Aug-1994
A champertous arrangement is unlawful. The action was time barred. It was not an assignment of the cause of action. Such a claim by a liquidator will not be permitted to proceed. The court granted a stay in an action being funded pursuant to a . .
Cited – Murphy, and Murphy v Young and Co’s Brewery Plc, Sun Alliance and London Insurance Plc CA 20-Nov-1996
When an unsuccessful party has had its legal costs funded under legal expenses insurance, should the insurer be held liable to pay the successful party’s costs? The insurer had not instigated the litigation, nor controlled it, and could not be . .
Cited – McFarlane v E E Caledonia Ltd QBD 8-Dec-1994
The court can order a champertous non-party to pay a successful defendant’s costs of defending the claim.
A non-party unlawfully supporting an action was ordered to pay the costs of the defendant.
Held: It may not be necessary to every . .

Cited by:

Appeal from – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.77613

Urquhart v Butterfield: 1887

A court may find a result different from that proposed by either party where there is no admission on the issue.

Judges:

Cotton LJ, Sir James Hannen and Lopes LJ

Citations:

(1887) 37 Ch D 37

Cited by:

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

Litigation Practice

Updated: 15 May 2022; Ref: scu.268052

Re Warren: ChD 1932

The Divisional Court in Bankruptcy applied the rule that a judicial act takes effect at the very start of the day on which it occurs to give deemed precedence to a receiving order, a judicial act, over a payment made earlier in the day. The overreaching statutory trusts for sale imposed by the Law of Property Act, 1925, do not normally alter the beneficial rights inter se of the concurrent owners.

Judges:

Maugham J

Citations:

[1938] Cl 725, [1932] 1 Ch 42

Jurisdiction:

England and Wales

Cited by:

Cited – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 15 May 2022; Ref: scu.267520

Attorney General v Lamplough: CA 1878

Unaltered words in an Act are to be construed as meaning what they did before the others were amended. Parliament in deleting particular words from the section in question was to exclude particular articles from liability to tax. The subsequent general words could, looked at in isolation, have prevented that intent being achieved. Hence, in order to give effect to the clear intention of Parliament, the general words had to continue to be construed in the restrictive fashion appropriate when the particular words, subsequently repealed, were in the Act.
Brett LJ said: ‘The schedule is as much a part of the statute, and is as much an enactment as any other part’.

Judges:

Brett LJ, Bramwell LJ

Citations:

(1878) 3 Ex D 214

Jurisdiction:

England and Wales

Cited by:

Cited – Boss Holdings Ltd v Grosvenor West End Properties and others HL 30-Jan-2008
The tenant sought to enfranchise the property under the 1967 Act. The freeholders replied that it was not a ‘house’ within the Act at the time of the notice. It had been built in the eighteenth century as a house, but the lower floors had been . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.264096

Freeman v Cox: 1878

Citations:

(1878) LT 8 ChD 148

Cited by:

Cited – Killick v Pountney and Another; Re Killick Deceased ChD 31-Mar-1999
Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.259991

Bradford Corporation v Myers: HL 1916

The 1893 Act was criticised for its complexity. A section gave protection to public authorities for ‘any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any power duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty or authority.’ The Corporation relied on this section when sued by an occupier who had purchased coke from the municipal gasworks. As a result of the negligence of an employee of the corporation the coke was tipped through the shop window of the purchaser in the course of its delivery.
Held: Lord Buckmaster LC said that the Act only applied where: ‘the act is one which is either an act in the direct execution of a statute, or in the discharge of public duty, or the exercise of the public authority.’
Viscount Haldane said speaking of the words of the section: ‘I do not think that they can be properly extended so as to embrace an act which is not done in direct pursuance of the provisions of the statute or in the direct execution of the duty or authority.’

Judges:

Lord Buckmaster LC

Citations:

[1916] 1 AC 242

Statutes:

Public Authorities Protection Act 1893

Jurisdiction:

England and Wales

Cited by:

Cited – Pountney v Griffiths; Regina v Bracknell Justices, Ex parte Griffiths HL 1976
The applicant was a male nurse at Broadmoor Special Hospital. He was on duty while patients were saying goodbye to visitors. He approached the detained patient telling him to ‘come on’ and allegedly punched him on the shoulder. The patient brought . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Local Government

Updated: 14 May 2022; Ref: scu.254625

Gulf Oil (Great Britain) Limited v Page: CA 1987

The plaintiff had contracted exclusively to supply to the defendants owners of petrol stations. On arrears arising, the plaintiff discontinued deliveries save on cash on delivery and direct debit terms. The defendants obtained supplies from another source and the plaintiff terminated the agreement. There then followed proceedings which the defendants lost in court and which were the subject of an appeal. While the appeal was pending the defendant circulated leaflets to several of the plaintiff’s customers, giving an account of the litigation and judgment. Also, when the plaintiff was entertaining customers at a hospitality tent at the Cheltenham Gold Cup race meeting, the defendant flew a light aircraft over the racecourse, displaying a banner with the words ‘Gulf Exposed in Fundamental Breach’.
Held: The court granted an injunction in conspiracy which enabled the plaintiff to circumvent the rule in Bonnard v Perryman, but Parker LJ said that the court ‘would require to be satisfied that [a claim in conspiracy] was not merely an attempt to circumvent the rule in defamation’.
‘It is true that there is no wrong done if what is published is true provided it is not published in pursuance of a combination and, even if it is, there is still no wrong unless the sole or dominant purpose of the combination in publication is to injure the plaintiff. If, however, there is both combination and purpose or dominant purpose to injure, there is a wrong done. When a plaintiff sues in conspiracy, there is therefore, a potential wrong, even if it is admitted as it is in the present case, that the publication is true and thus that there is no question of a course of action in defamation. In such a case the court can, and should not proceed on the same principle as it would in the case of any other tort.
The prospect that this would open the floodgates and reverse the principle applicable in libel actions is, in my view unreal, a plaintiff against the author and publisher of a newspaper article, for example, might well establish a combination, but it appears to me that it would only be in the rarest case that sufficient evidence of a dominant purpose to injure could be made out to warrant the ground of interlocutory relief, and I have no doubt that the court would scrutinise with the greatest care any case where a course of action in conspiracy was joined to a course of action in defamation and would require to be satisfied that such joinder was not merely an attempt to circumvent the rule in defamation’.

Judges:

Parker LJ, Nicholas Browne-Wilkinson V-C

Citations:

[1987] 1 Ch 327

Jurisdiction:

England and Wales

Citing:

Cited – Bonnard v Perryman CA 2-Jan-1891
Although the courts possessed a jurisdiction, ‘in all but exceptional cases’, they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that that defence . .

Cited by:

Cited – Service Corporation International plc v Channel Four Television ChD 1999
The court considered an application for an interlocutory injunction to restrain a broadcast, based on copyright. The defendant argued that this was merely an attempt to circumvent difficulties in a defamation action.
Held: Where an interim . .
Cited – RST v UVW QBD 11-Sep-2009
The applicant sought an interim and without notice injunction preventing the defendant from disclosing confidential information covered by an agreement between the parties.
Held: The order was made on a without notice application because there . .
Cited – Caborn-Waterfield v Gold and Others QBD 11-Mar-2013
The defendants requested a preliminary ruling that the words complained of in the claimant’s action were not capable of bearing a defamatory meaning.
Held: Some of the pleaded meanings were not supported, but others were clearly defamatory, . .
Cited – Femis Bank v Lazard 1991
Nicholas Browne-Wilkinson V-C said: ‘However, in this case the plaintiffs rely on the decision . . in Gulf Oil (Great Britain) Ltd v. Page . . which shows that, where the cause of action is founded on conspiracy to injure, the court can grant an . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 14 May 2022; Ref: scu.253525

Microdata v Rivendale: 1991

The need to protect freedom of speech overrode the need to protect a person’s trade reputation.

Citations:

[1991] FSR 681

Cited by:

Cited – Service Corporation International plc v Channel Four Television ChD 1999
The court considered an application for an interlocutory injunction to restrain a broadcast, based on copyright. The defendant argued that this was merely an attempt to circumvent difficulties in a defamation action.
Held: Where an interim . .
Cited – Boehringer Ingelheim Ltd and others v Vetplus Ltd CA 20-Jun-2007
The claimants appealed refusal of an order restricting comparative advertising materials for the defendant’s competing veterinary medicine. The claimant said that the rule against prior restraint applicable to defamation and other tort proceedings . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 14 May 2022; Ref: scu.253524

Transmountana Armadora v Atlantic Shipping: 1978

Donaldson J discussed the nature of a sealed offer in arbitration proceedings: ‘Although the respondents’ offer of settlement has been referred to as an ‘open offer’, this is a misnomer. Offers of settlement in arbitral proceedings can be of three kinds, namely, ‘without prejudice’, ‘sealed’ and ‘open’.
A ‘without prejudice’ offer can never be referred to by either party at any stage of the proceedings, because it is in the public interest that there should be a procedure whereby the parties can discuss their differences freely and frankly and make offers of settlement without fear of being embarrassed by these exchanges if, unhappily, they do not lead to a settlement.
A ‘sealed offer’ is the arbitral equivalent of making a payment into Court in settlement of the litigation or of particular causes of action in that litigation. Neither the fact, nor the amount, of such a payment into Court can be revealed to the Judge trying the case until he has given judgment on all matters other than costs. As it is customary for an award to deal at one and the same time both with the parties’ claims and with the question of costs, the existence of a sealed offer has to be brought to the attention of the arbitrator before he has reached a decision. However, it should remain sealed at that stage and it would be wholly improper for the arbitrator to look at it before he has reached a final decision on the matters in dispute other than as to costs, or to revise that decision in the light of the terms of the sealed offer when he sees them.’

Judges:

Donaldson J

Citations:

[1978] 1 Ll R 391

Cited by:

Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Followed – Archital v Boot Construction 1981
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 14 May 2022; Ref: scu.254331

Regina v Schildcamp: HL 1971

Lord Upjohn considered the duty of the court when considering an Act of Parliament: ‘The task of the court is to ascertain the intention of Parliament; you cannot look at the section, still less a subsection, in isolation, to ascertain that intention; you must look at all the admissible surrounding circumstances before starting to construe the Act.’

Judges:

Lord Upjohn

Citations:

[1971] AC 1

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc and Another v HM Revenue and Customs CA 11-May-2007
Retired bank employees had previously received free tax advice. When the service was withdrawn, the bank made a payment. The Revenue said that this payment was chargeable to income tax.
Held: The bank’s appeal failed. The payment was made ‘in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.253204

Pena Copper Mines Ltd v Rio Tinto Co Ltd: 1911

The court exercised its jurisdiction to make an order restraining the commencement of proceedings abroad.

Citations:

(1911) 105 LT 846

Cited by:

Cited – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.249048

Tilling v Whiteman: HL 1980

Lord Scarman said: ‘Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety and expense.’
Lord Wilberforce said: ‘The judge took what has turned out to be an unfortunate course. Instead of finding the facts, which should have presented no difficulty and taken little time, he allowed a preliminary point of law to be taken, whether Case 10 applies to a case where there are joint owners one only of which requires the house as a residence. So the case has reached this House on hypothetical facts, the correctness of which remain to be tried. I, with others of your Lordships, have often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional.’

Judges:

Lord Wilberforce, Lord Scarman

Citations:

[1980] AC 1

Jurisdiction:

England and Wales

Cited by:

Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – WWF-World Wide Fund for Nature and Another v World Wrestling Federation Entertainment Inc ChD 16-Feb-2006
. .
Cited – SCA Packaging Ltd v Boyle (Northern Ireland) HL 1-Jul-2009
The claimant suffered a condition which would lead to the development of vocal nodules unless she followed a program which would allow her to avoid raising her voice. She said that employer should not have placed her within a noisy environment. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.250685

Khreino v Khreino: CA 2000

The court heard a renewed application for leave to appeal. A single Lord Justice had directed that any oral renewal of the application for permission should be heard by a court of two, of which he was to be a member. Objection was taken to him being a member of the court, having already given his opnion on the papers.
Held: The renewed application could by heard by a court including the judge who had rejected the original request on the papers.
Thorpe LJ: ‘The manifest intention of the practice direction is to enable applications for permission to be dealt with by a single judge of the court on paper in much the same way as the application for permission is dealt with by the trial judge on paper. It is important that the single Lord Justice should have a profound understanding of the case and of the arguments advanced in support of the application for permission. To ensure that he receives such papers as would be conventionally before the court at an oral hearing under the former practice he also now has the advantage of a full skeleton argument supporting the application for permission. Therefore his refusal on paper is a considered and reasoned refusal after full consideration of all relevant material, including the applicant’s detailed submissions. In the majority of cases it is intended to be the end of the application for permission unless the single Lord Justice has fallen into manifest error or unless there has been some unexpected subsequent development. So it seems to me that the right to require a subsequent oral hearing has a real purpose and function in the minority of cases. Of course the importance that we attach to oral argument has always been a distinguishing characteristic of our forensic system. But ordinarily there must be more than that to justify renewal. Perhaps on further consideration the advocate has perceived a submission not previously advanced. There might also be circumstances in which subsequent to the signing of the provisional refusal there was some unexpected development in relation to the appeal or some development of the relevant precedent law.’
Mummery LJ: ‘The course taken could not possibly be regarded as a breach of Article 6 of the European Convention on Human Rights. The first sentence of that Article provides:
‘In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
The procedure laid down is that applications for permission to appeal are made ex parte and they are considered on paper. The rules require that, in support of the application for permission to appeal, the party seeking to appeal will submit a skeleton argument. That sets out all the points which he would wish to pursue on the appeal. The single Lord Justice who considers it is able to form a view whether or not the appeal on those grounds has a real prospect of success. There has therefore been a fair hearing, within a reasonable time of an ex parte application. That hearing was before an independent and impartial tribunal. An oral hearing was requested. This oral hearing is in public. There is no breach of any common law principle of procedural fairness which, like Article 6, requires that a hearing takes place before an unbiased tribunal or court. There is no requirement that every application shall receive an oral hearing. It is appropriate that an ex parte application for permission to appeal should be considered initially as a paper application. Mr Turner [counsel making the application] says that if the Lord Justice who has indicated that he is minded to refuse and gives reasons for it sits on the oral hearing that renders the oral hearing pointless, because it is taking place before a judge who has already made up his mind. That is a misunderstanding of the procedure. The Lord Justice who has indicated that he is minded to refuse leave to appeal is obliged to consider the matter at the oral hearing in the light of any further points. The oral hearing is not an appeal from an earlier decision. These points may range from updating the court on matters which have occurred since the application was considered in July; drawing the court’s attention to new authorities which had not been discovered at the time of submitting the skeleton argument or had not been decided and reported at that time. The oral hearing also provides an occasion for dealing with errors and omissions in the reasons stated in the minded to refuse letter. The oral hearing is not pointless.
I agree with my Lord as to the circumstances in which an application for an oral hearing is conducted after the matter has been fully considered on a paper application. Mr Turner’s objection to the propriety or validity of the constitution of this court should be rejected.’

Judges:

Thorpe LJ, Mummery LJ

Citations:

[2000] 1 FCR 75

Jurisdiction:

England and Wales

Cited by:

Cited – Rezvi v Air Canada CA 14-Feb-2002
The claimant renewed her application for leave to appeal, but had first asked the judge to recuse himself for apparent bias having already expressd an opinion on the papers submitted.
Held: Reconsideration by the same judge who had refused . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Human Rights

Updated: 14 May 2022; Ref: scu.248330

Meadows v Grand Junction Waterworks Company: 1905

Citations:

[1905] 21 TLR 538

Cited by:

Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.247612

Aaron v Shelton: 2004

A party wishing to raise a matter concerning the conduct of the opposing party, either before or during litigation, was under a duty to raise it before the judge making the costs order, was too broadly stated.

Citations:

[2004] EWHC 1162 (QB)

Jurisdiction:

England and Wales

Cited by:

Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that . .
See Also – Aaron v Shelton SCCO 24-May-2004
. .
See Also – Aaron v Shelton SCCO 24-May-2004
. .
Cited – Northstar Systems Ltd and others v Fielding and others; Ultraframe (UK) Ltd and Others v Fielding and Others (No 2) CA 6-Dec-2006
The parties had disputed ownership of intellectual property rights. The court had found certain parties dishonest. The judge had found the successful defendants honest and adjusted the costs order in their favour. The claimants appealed.
Held: . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 14 May 2022; Ref: scu.247886

ISC Technologies Limited v Radcliffe: 7 Dec 1990

It was alleged that a Mr Guerin had committed a fraud on the arms manufacturer Ferrari.
Held: The constructive trust provision in RSC Order 11, r 1(1)(t) applied only if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to a knowing receipt abroad of the proceeds of such fraud. The rules allowing service out of the jurisdiction where the defendant’s alleged liability arose ‘out of acts committed, whether by him or otherwise, within the jurisdiction’ only applied if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to knowing receipt abroad of the proceeds of such a fraud.

Judges:

Millett J

Citations:

Unreported, December 7, 1990

Statutes:

Rules of the Supreme Court Order 11 r1(1)(t)

Cited by:

Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.245213

Thomas Bishop Ltd v Helmville Ltd: CA 1972

The court considered what was to be understood by a judgment which had been regularly obtained. Orr LJ (dissenting): ‘the point of time to be looked at in deciding whether the judgment was regularly obtained is the time when the judgment was given or signed, and if at that time there is nothing known to the court (or to the plaintiff whose duty it would be to communicate it to the court) which indicates that the relevant process has not been delivered in the ordinary course of post, it is to be deemed to have been so delivered for the purposes of that judgment, though it will be open to the defendant to apply to have that judgment set aside on the court’s discretion on the ground, inter alia, that he was not served in time.’

Judges:

Orr LJ

Citations:

[1972] 1 QB 464

Jurisdiction:

England and Wales

Cited by:

Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.245077

Arkadelphia Milling v St Louis Southwestern Railway: 1918

(United States Supreme Court) A wrongful injunction had restrained a State Railroad Commission from enforcing its shipping tariffs. Two frequent shippers were also enjoined as representative defendants. The injunction was directed against ‘the Commissioners . . the individual shippers named as defendants, and all other patrons of the road in the shipment of freight.’ It was dissolved on appeal. So the injunction had compelled the ‘patrons of the road’ to overpay.
Held: The question was whether there could be a restitutionary claim on their behalf as a class. There could be because they were the class that were injuncted.

Citations:

(1918) 249 US 134

Jurisdiction:

United States

Cited by:

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

Litigation Practice

Updated: 14 May 2022; Ref: scu.242624

Oliver v Nautilus Steam Shipping Co Ltd: 1903

Where an employee was injured at work, but by an outside person, section 6 of the 1897 Act provides that the worker could ‘at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under this Act, but not against both’. If compensation under the Act was paid, the ’employer [was] entitled to be indemnified’ by that other person.
Receipts given ‘without prejudice’ were accepted by the employers.
Held: The workman had not exercised the option under the Act.

Citations:

[1903] 2 KB 639

Statutes:

Workmen’s Compensation Act 1897 6

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, Employment, Personal Injury

Updated: 14 May 2022; Ref: scu.243136

United Motor Service v Tropic-aire: 1932

(Court of Appeals for the 8th Circuit USA) The defendant said that he had suffered greater damage than the amount set down in a bond provided for security when the plaintiff requested an interim injunction. The action had failed.
Held: Judge Kenyon said: ‘Restitution of the amount received under a decree, afterwards reversed, will be ordered in equity, and will sustain an action at law. But the condition of the restoration is always that the party against whom restitution is sought shall have received, by virtue of the decree, what he is asked to restore. There is no support in reason or authority for an extension of the doctrine of restitution to cover an award of damages, which the restorer never received, and so in no true sense could restore.’
‘There is nothing certain as to the amount of damages suffered by defendant by reason of the improvident granting of the preliminary injunction. Nothing was taken from it by the injunction and given to the plaintiff. We see no room for the application of the doctrine of restitution here.’

Judges:

Judge Kenyon

Citations:

(1932) 57 F 2d 479

Jurisdiction:

United States

Cited by:

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

Litigation Practice, Equity

Updated: 14 May 2022; Ref: scu.242621

Warman International Ltd and Others v Envirotech Australia Pty Ltd and Others: 1986

(Australia High Court) The court considered an application that the privilege against self incrimination be allowed to prevent a requirement to produce documents at court under a sub-poena: ‘Production is to the Court. Unless and until the contents of the documents is made known to a person who is reasonably likely to use those documents for the purpose of a criminal prosecution, no self-incrimination can occur.’

Judges:

Wilcox J

Citations:

(1986) 57 ALR 253

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.

Litigation Practice, Commonwealth

Updated: 14 May 2022; Ref: scu.242451

P and M Sinclair v The Bamber Gray Partnership: 1987

A motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal questions requiring more detailed and extensive legal debate.

Judges:

Lord Prosser

Citations:

1987 SC 203

Cited by:

Cited – Henderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Scotland

Updated: 14 May 2022; Ref: scu.241641

Davies v Reed Stock and Co Ltd: 1984

Citations:

Unreported 1984

Cited by:

Followed – Busby v Cooper; Busby v Abbey National plc; Busby v Lumby CA 2-Apr-1996
The claimant sought damages after having bought a house after receiving an allegedly negligent report on the concrete. She had asked to be allowed to add a third party (the local authority who had passed the building) as a defendant, but the request . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 14 May 2022; Ref: scu.241759

Re Taylor’s Application: 1972

If the approval of the litigation friend is required and it appears that the litigation friend is acting unreasonably in withholding his consent, steps can be taken to remove him and appoint another litigation friend in his place.

Citations:

[1972] 2 QB 369

Jurisdiction:

England and Wales

Cited by:

Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.238881

Norwich Pharmacal Co and others v Customs and Excise Commissioners: ChD 1972

The court considered an application for an order that the other party identify third party wrong-doers.

Citations:

[1972] 1 All ER 972

Jurisdiction:

England and Wales

Cited by:

Appeal from (revresed) – Norwich Pharmacal Co and others v Customs and Excise Commissioners CA 2-Jan-1972
The plaintiffs sought discovery of the names of patent infringers from the defendant third party, submitting that by analogy with trade mark and passing-off cases, the Customs could be ordered to give discovery of the names.
Held: Buckley LJ . .
At First Instance – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 14 May 2022; Ref: scu.239095

Netbank v Commercial Money Center: 2004

(Supreme Court of Bermuda) Before the court was an issue as to the enforcement of a letter of request from Ohio for oral evidence to be taken from employees in Bermuda of an insurance company. The island’s Evidence Act 1905 had provisions identical to those in the English Act of 1975.
Held: ‘Typically, perhaps, oral examination relates almost exclusively to the requested documents, so, if the documents are not properly sought, oral examination falls away.’ Since the request was only for oral evidence chose to adopt the approach commended in Zayed, he held that he had a discretion, which he proceeded to exercise.

Judges:

Kawaley J

Citations:

[2004] Bda LR 46

Jurisdiction:

Commonwealth

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.236598

Zakay v Zakay: 1998

In financial proceedings in England following divorce the wife alleged – and the husband denied – that he was the beneficial owner of shares held by a Gibraltarian trust company. The English court had ordered the issue of a letter of request to the Gibraltarian court that an officer of the trust company be required both to give oral evidence identifying the beneficial owner of the shares and to produce all documents in relation to such ownership. The officer sought to set aside an order in Gibraltar which had in both respects given effect to the request. The chief justice had to apply provisions of Gibraltar’s Evidence Ordinance
Held: He refused to set aside the order: ‘ . . the documents requested for production in this case are narrowly confined to the single issue they are aimed to support. The documents are more than likely in the possession of the applicant and are readily identifiable. Of course, it is impossible for the petitioner to know the specific identity of individual documents. But the applicant is being asked a specific question and is being asked to produce the documents to prove his answers. That is not a fishing expedition in the sense of casting a line in the hope that something will be caught: the fish has been identified and the court is endeavouring to spear it.’

Judges:

Schofield CJ

Citations:

[1998] 3 FCR 35

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Family, Litigation Practice

Updated: 14 May 2022; Ref: scu.236600

SSQ Europe SA v Johann and Backes OHG: 2002

Extension of time to challenge court’s jurisdiction.

Citations:

[2002] 1 Lloyd’s Rep. 465

Cited by:

Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 May 2022; Ref: scu.237260

English Exporters (London) Ltd v Eldonwall Ltd: ChD 1973

The Court was asked as to the extent to which a valuer can permissibly rely upon matters drawn from his own knowledge and experience, and which are not proven by direct evidence on the one hand, as compared to specific transactions upon which he relies for the formation of an opinion as to value, on the other hand, and which must be proven.
Held: Where an expert relies upon the existence of some fact in support of an opinion, that fact must be proved by admissible evidence. Megarry J said: ‘I know of no special rule giving expert valuation witnesses the right to give hearsay evidence of facts.’
As to ‘non-specific hearsay’ he said: ‘As an expert witness, the valuer is entitled to express his opinion about matters within his field of competence. In building up his opinions about values, he will no doubt have learnt much from transactions in which he has himself been engaged, and of which he could give first-hand evidence. But he will also have learned much from many other sources, including much of which he could give no first-hand evidence. Text books, journals, reports of options and other dealings, and information obtained from his professional brethren and others, some related to particular transactions and some more general and indefinite, will all have contributed their share. Doubtless much, or most, of this will be accurate, though some will not; and even what is accurate so far as it goes may be incomplete, in that nothing may have been said of some special element which affects values. Nevertheless, the opinion that the expert expresses is none the worse because it is in part derived from the matters of which he could give no direct evidence. Even if some of the extraneous information which he acquires in this way is inaccurate or incomplete, the errors and omissions will often tend to cancel each other out; and the valuer, after all, is an expert in this field, so that the less reliable the knowledge that he has about the details of some reported transaction, the more his experience will tell him that he should be ready to make some discount from the weight that he gives it in contributing to his overall sense of values. Some aberrant transactions may stand so far out of line that he will give them little or no weight. No question of giving hearsay evidence arises in such cases; the witness states his opinion from his general experience.’

Judges:

Megarry J

Citations:

[1973] 1 Ch 415, [1973] 1 All ER 726, [1973] 2 WLR 435

Statutes:

Landlord and Tenant Act 1954 24A

Jurisdiction:

England and Wales

Landlord and Tenant, Evidence, Litigation Practice

Updated: 14 May 2022; Ref: scu.656664

BF v Secretary of State for Work and Pensions (ESA): UTAA 18 Apr 2019

Errors of law included (1) how and for what purpose the First-tier Tribunal used the clerk to communicate with the appellant, and (2) the appearance of bias from how the First-tier Tribunal used knowledge of the appellant gained previously and not by this panel.

Citations:

[2019] UKUT 420 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 May 2022; Ref: scu.656595

The Mito: 1987

The court discussed the requirement of undertakings in damages from a party seeking an interim injunction: ‘When such security is originally sought it is sought as a condition for the grant of the injunction, in other words the plaintiff is told if you want this injunction you have to pay the price by fortifying the undertaking to damages. The plaintiff can then either agree or disqualify himself in obtaining the injunction . . Mr McClure says that the plaintiff has already paid a price here when the cross-undertaking was given, which is perfectly correct as far as it goes. The plaintiffs did not ever agree nor were they ever asked to pay the extra price that is the fortification of the undertaking. If they had been asked to do so, it may very well be that they would . . have declined to take an injunction. Of course, Mr McClure accepts, as he must, that the court has no power to impose an undertaking on the plaintiffs and herein I think if I were to make this order I would in essence ex post facto be imposing a conditional term to the undertaking without any knowledge one way or the other as to what the situation would have been if it had been sought by the defendant in the first place. That is something which I think is wrong in principle to do.’

Judges:

Hirst J

Citations:

[1987] 2 Lloyd’s Rep 197

Cited by:

Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.231213

Viscountess Rhondda’s Claim: HL 1922

(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the Parliamentary history of the legislation as the proposal and rejection of amendments. It is the sole right of the Committee to decide who was entitled to receive the Writ of Summons and Lord Lyndhurst said that if a person is entitled to a writ, but the Crown does not issue one, then his remedy is to petition the House.
Lord Birkenhead LC said: ‘The rule that the words of an instrument shall be taken most strictly against the party employing them – verba chartarum fortius accipiuntur contra proferentem – does not apply to the Crown such a grant is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words.’ It was the duty of the Committee for Privileges to consider whether she was entitled to receive a Writ of Summons: ‘The writ is not to be issued capriciously or withheld capriciously at the pleasure of the Sovereign or of this House. It is to be issued, or withheld, according to the law relating to the matter, and if, under that law, it appears that there is a debt of justice to the petitioner in that matter, the writ will issue and, if not, it cannot issue.’
Lord Lyndhurst said: ‘If a Writ of Summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to and which was effectual to attain its object. The Peers in Parliament, in that case, refused to proceed to business until the Writ of Summons was issued and until the House was properly constituted, and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the Writ of Summons and that the abuse of which they complained never occurred again. That is a remedy when the Writ of Summons is withheld. On the other hand, when a party has obtruded himself upon the House in which he has no right to sit, the remedy is equally plain. It is your duty to direct your Officers to refuse to administer the oaths, or allow the party to take his seat.’

Judges:

Viscount Haldane, Lord Birkenhead LC

Citations:

[1922] 2 AC 339

Statutes:

Sex Disqualification (Removal) Act 1919

Jurisdiction:

England and Wales

Citing:

Cited – The Wensleydale Peerage HL 22-Feb-1856
Sir James Parke, a distinguished judge of the Court of the Exchequer, was created a Life Peer but the House of Lords refused to allow him to sit and vote in the House because, they decided, that as the law then stood, the creation of Life Peers was . .

Cited by:

Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Cited – Mereworth v Ministry of Justice ChD 23-May-2011
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Discrimination

Updated: 13 May 2022; Ref: scu.231154

Brillouet v Hachette Magazines Ltd: 1996

A party should not be allowed to put an argument again which had been lost at an earlier stage merely because he felt he had found a better way of putting the argument.

Judges:

Vinelott J

Citations:

[1996] BPIR 518

Cited by:

Cited – Atherton v Ogunlende and Another CA 20-Nov-2001
It would be a waste of court time and the parties’ money to allow a debtor, who had already failed on his application to set aside a statutory demand, to advance the same arguments by way of challenge to the petition debt on the hearing of the . .
Cited – Coulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 13 May 2022; Ref: scu.230916

Barraclough v Brown: HL 1897

The 1889 Act gave statutory undertakers who had incurred expenditure in removing a sunken vessel a right ‘to recover such expenses from the owner of such vessel in a court of summary jurisdiction.’ the undertakers began their action in the High Court, and appealed dismissal of the claim.
Held: The appeal failed. Such expenses were not recoverable in an action the High Court. ‘By these words the Legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable; and has therefore, by plain implication, enacted that no other court has any authority to entertain or decide these matters.’ and ‘It is possible that your Lordships might accede to such a suggestion, if it were necessary, in order to do justice. But apart from the circumstance that such a declaration would not be in accordance with law, the substance of it is one of those matters exclusively committed to the jurisdiction of the summary court.’
Lord Herschell: ‘I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right.’

Judges:

lord Watson, Lord Herschell

Citations:

[1897] AC 615

Statutes:

Aire and Calder Navigation Act 1889 47

Cited by:

Mentioned – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Argosam Finance Co Ltd v Oxby (Inspector of Taxes) CA 1965
A company which dealt in shares issued an originating summons in the Chancery Division requesting a declaration as to the correct method of computing its income for the purposes of loss relief. The revenue challenged the proceedings as an abuse of . .
Cited – In re Vandervell’s Trusts (No 1); Vandervell Trustees Limited v White and Others HL 15-Jul-1970
Practice – Parties – Joinder – Proceedings between subjects raising issues material to income tax – Joinder of Commissioners of Inland Revenue – Income Tax Act 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c.10), ss. 52 and 64 ; Income Tax Management Act . .
Cited – Capper v Chaney and Another ChD 8-Jul-2010
Police had seized substantial sums of cash from the first defendant acting under the 2004 Act. The claimant said that andpound;250,00 was his and sought its return. The Commissioner argued that the current proceedings were an abuse of process.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.229081

Brimko Holdings Limited v Eastman Kodak Company: 2004

The defendant sought security for costs. The court considered the burden of proof in such a claim: ‘. . the court should not restrict its evaluation of the ability of a claimant to provide security to the means of the claimant itself. If the claimant cannot provide the security from its own resources, the court will be likely to consider whether it can reasonably be expected to provide it from third parties such as, in the case of a corporate claimant, shareholders or associated companies or, in the case of an individual claimant, friends and relatives. If the case moves to the stage of considering whether the security should be regarded as being available from third parties, the burden still rests on the claimant. He or it has to show that, realistically, there do not exist third parties who can reasonably be expected to put up security for the defendant’s costs’ and ‘the court should not press too far the proposition that the burden [of showing that an order in more than a certain sum will stifle the claim] rests on the claimant. It should be recalled that when the claimant has to establish that third parties do not exist from whom security can reasonably [be] expected and obtained, that is to place on the claimant the burden of proving a negative.’

Judges:

Park J

Citations:

[2004] EWHC 1343 (Ch)

Cited by:

Cited – Al-Koronky and Another v Time Life Entertainment Group Ltd and Another QBD 29-Jul-2005
The defendant to the defamation claim sought security for costs. There had been allegations of dishonesty on either side.
Held: The court should not, upon such an application, enter into the merits of the case in any detail, save in the . .
Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.229848

Rodriguez v Speyer Brothers: 1919

The courts will not give assistance to proceedings which, if successful would lead to the enrichment of an alien enemy, and therefore would tend to provide his country with the sinews of war. An enemy alien has no standing to commence proceedings here. However, because the rule is one of public policy, it does not apply if the case discloses no mischief against which the rule was intended to guard.
Lord Finlay LC said: ‘When a debt due to the firm is got in no partner has any share or definite interest in that debt; his right is merely to have the money so received applied, together with the other assets, in discharging the liabilities of the firm, and to receive his share of any surplus there may be when the liquidation has been completed.’

Judges:

Viscount Haldane

Citations:

[1919] AC 59

Jurisdiction:

England and Wales

Cited by:

Cited – Amin v Brown ChD 27-Jul-2005
The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 13 May 2022; Ref: scu.230003

Re M (Contact: Family Assistance: McKenzie Friend): CA 1999

A father appealed a refual of consent for him to be allowed assistance from a McKenzie Friend.
Held: He should have been allowed assistance on the contact and other applications. It was ‘a matter of regret’ that the father had been denied the assistance of a McKenzie friend and that no apparent explanation for the denial had been put forward. Ward LJ: ‘The judge has the father appearing in person. There is a ground of appeal before us complaining of having been denied a McKenzie friend. It emerged from the submissions . . . that the refusal occurred at an earlier hearing and may or may not have been influenced in part by the personality of that particular McKenzie friend. The father simply does not know. He feels the burning injustice of having been besieged with paper and coping with the difficulty of the management of that paper and the conduct of the litigation. I have considerable sympathy with him . It is always difficult, and the more emotive and important the issue to the litigant, often the more useful it is to have the restraining influence of a McKenzie friend. The value was demonstrated in this court when we asked for assistance as to a certain passage of evidence to which the father had made reference. That was left to the gentleman here, who was not the gentleman against whom any possible objection could have been taken in July 1997. The answer was forthcoming. It showed the virtue of how the McKenzie friend is to operate. It is therefore a matter of regret that the father was denied that assistance. The judge would not have had referred to him a decision of this court given by me in Re H (Chambers Proceedings: McKenzie Friend) (1997… 2 FLR 423. Provided that the McKenzie friend acts with restraint, he is often a useful assistant to the conduct of litigation’.’

Judges:

Ward LJ, Roch LJ

Citations:

[1999] 1 FLR 75

Jurisdiction:

England and Wales

Citing:

Cited – In Re H (A Minor) (Chambers Proceedings: Mckenzie Friend) CA 6-May-1997
A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the . .

Cited by:

Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 13 May 2022; Ref: scu.227952

Statement (Technology and Construction Court: Arrangements): TCC 7 Jun 2005

In view of the growing importance and volume of Technology and Construction Court Business, the court provided a detailed statement of interim amendments to the arrangements pending a fuller review of needs, including providing additional judicial resources and for allocation and management of cases.

Judges:

Lord Woolf LCJ

Citations:

Times 14-Jun-2005

Litigation Practice, Construction, Intellectual Property

Updated: 13 May 2022; Ref: scu.226216

Roburn Construction Ltd v William Irwin (South) and Co Ltd: 1991

When making an order for security for costs, the court will normally order a substantial sum, but need not.

Citations:

[1991] BCC 726

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: 13 May 2022; Ref: scu.225885

Hammerton and Another v Earl of Dysart and Another: HL 23 Jul 1915

The plaintiff sought a declaration that he owned an ancient right of ferry over the Thames, and that th edefendant had disturbed it by setting up a new ferry a short diatnce downstream.
Held: The traffic for the new ferry was largely generated by the park opened to the public by the defendant, and therefore the custom of the new ferry service was largely derived from this new business, was new traffic, and was not a disturbance of the plaintiff’s ferry rights.
Lord Parker said: ‘A ferry may thus be regarded as a link between two highways on either side of the water, or as part of a continuous highway crossing the water’.

Judges:

Viscount Haldane, Lord Parker of Waddington, Lord Sumner, Lord Strathclyde, and
Lord Parmoor

Citations:

[1916] 1 AC 57

Jurisdiction:

England and Wales

Citing:

Appeal from – Earl of Dysart v Hammerton and Co CA 1914
. .
Lists of cited by and citing cases may be incomplete.

Transport, Litigation Practice

Updated: 13 May 2022; Ref: scu.225325

Metropolitan Water Board v Johnson and Co: 1913

Judges:

Channel J

Citations:

[1913] 3 KB 900

Cited by:

Cited – Vine v London Borough of Waltham Forest CA 5-Apr-2000
The act of wheel clamping a car which was unlawfully parked is a trespass to goods. To avoid an action for damages, the clamper must show that the car parker consented to the clamping. He can do so by showing, in accordance with established . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.223146

Vista Maritime Inc v Sesa Goa A/s Bulk Trading Group Ltd: ComC 24 Oct 1997

ComC Procedure – Waiver of privilege – References in witness statements and expert’s reports to privileged material – Right to withdraw reliance on such references

Judges:

Mance J

Citations:

[1997] CLC 1600

Jurisdiction:

England and Wales

Citing:

See Also – Vista Maritime Inc v Sesa Goa ComC 3-Dec-1997
Meeting of Expert witnesses: Duties of experts to reconsider their initial views and minimise matters in issue. Duty to briefly explain key reasons for disagreement with opposing expert’s view. Expert witnesses being remunerated by contingent fees – . .

Cited by:

See Also – Vista Maritime Inc v Sesa Goa ComC 3-Dec-1997
Meeting of Expert witnesses: Duties of experts to reconsider their initial views and minimise matters in issue. Duty to briefly explain key reasons for disagreement with opposing expert’s view. Expert witnesses being remunerated by contingent fees – . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.220804

Caspian Basin Specialised Emergency Salvage Administration and Anr v Bouyges Offshore SA (No. 3): AdCt 26 May 1997

ComC Third party notices – application to set aside – loss of barge under tow – port authority held not to be a necessary and proper party

Judges:

Colman J

Citations:

[1997] 2 Lloyd’s Rep 493, [1997] CLC 1443

Jurisdiction:

England and Wales

Transport, Litigation Practice

Updated: 13 May 2022; Ref: scu.220777

Shearer and Others v Spring Capital Ltd and Others: ChD 4 Nov 2013

The court considered various applications for interim orders and directions in the cause.

Judges:

Danel Alexander QC

Citations:

[2013] EWHC 3373 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – The Earl of Oxford’s Case In Chancery ChD 1615
Chancellor may relieve common law oppression
The claim was made under a lease. judgement have been entered in default at common law in favour of the plaintiff. the defendant began a suit in the Chancery Court. a common-law injunction was then issued against the original plaintiff, and he was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 13 May 2022; Ref: scu.517374

Knight v Knight: 1925

Citations:

[1925] Ch 835

Cited by:

Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.216506

Re Sainsbury’s Settlement: 1967

If an order is made properly and within the jurisdiction of the court, the fact that it was sought with the motive of seeking to achieve a better tax position is usually irrelevant.

Citations:

[1967] 1 WLR 476

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.214599

Magor and St Mellons Rural District Council v Newport Corporaion: CA 1950

Lord Denning considered the strict interpretation rule: ‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’

Judges:

Lord Denning

Citations:

[1950] 2 All ER 1226

Jurisdiction:

England and Wales

Cited by:

Appeal from – Magor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.200612

Hulbert v Thurston: 1931

In a personal injury action, the infant plaintiff obtained judgment in his favour for damages to be awarded. On appeal that judgment was reversed and judgment was entered in favour of the defendant ‘with the costs including the costs of this appeal’. The costs having been taxed, the defendant’s solicitor proposed to issue a writ of fi. fa. against the infant plaintiff’s next friend, but was told that that was not possible as no order had been made against him. There followed an application for the order to be amended.
Held: When the court had allowed the appeal of the defendant it was asked to order that judgment should be entered for her with costs. That was the order drawn up. ‘In his opinion the addition now asked for was not one that could be made under the slip rule. That rule was intended for the correction of an order which, as drawn up, did not express that which was decided by the Court. It was quite possible that an order in the terms now asked for might have been made if an application had been made at the time, but no such application was made.’

Judges:

Scrutton LJ

Citations:

[1931] WN 171

Costs, Litigation Practice

Updated: 13 May 2022; Ref: scu.200473

Atid Navigation Co Ltd v Towage and Shipping Co Ltd: 1955

The judge refused to allow an additional party to be joined to an action to pursue a counterclaim. The issues between the present parties could ‘perfectly well be decided’ without the additional party.

Judges:

Wynn-Parry J

Citations:

[1955] 1 WLR 336

Cited by:

Cited – Balkanbank v Naser Taher and Others QBD 13-Feb-1995
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.200495

Notham v London Borough of Barnet: CA 1978

The purposive approach to the interpretation of statutes will ‘promote the general legislative purpose underlying the provisions’

Judges:

Lord Denning MR

Citations:

[1978] 1 All ER 1243

Jurisdiction:

England and Wales

Cited by:

Appeal from – Nothman v Barnet London Borough County Council HL 1978
The normal retiring age for an employee is to be found by looking exclusively at the conditions of employment applicable to the group of employees holding his position.
Lord Salmon said: ‘If a woman’s conditions of employment provide that her . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.200614

Minister of National Revenue v Coopers and Lybrand: 1979

(Supreme Court of Canada) The court sought to define the distinctive characteristics of a quasi-judicial act: ‘ (1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached? (2) Does the decision or order directly or indirectly affect the rights and obligations persons? (3) Is the adversary process involved? (4) Is there an obligation to apply substantive rules to many individual cases rather then, for example, the obligation to implement social and economic policy in a broad sense? These are all factors to be weighed and evaluated, no one of which is necessarily determinative. . . In more general terms, one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those . . affected thereby. . . The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process. The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating [to] those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially’.

Judges:

Dickson J

Citations:

[1979] 1 SCR 495

Jurisdiction:

Canada

Cited by:

Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.199769

Manku v Seehra: OR 1987

The defendant had made a payment into court in the light of a joint experts meeting. In the light of the opinion of another surveyor, he sought leave to withdraw his notice of payment in. The plaintiff gave notice accepting the payment in on the same day as the defendant’s summons was delivered to the plaintiff’s solicitors.
Held: The plaintiff remained lawfully entitled to give notice of acceptance. He also held that the court had power to allow withdrawal of a notice of payment in even when the plaintiff has a right to accept it: ‘The second question is whether a court may allow withdrawal of a notice of payment in, if between the time when the defendant served his summons seeking leave to withdraw and the hearing of it the plaintiff has given notice of acceptance. The rules do not state that the issue of a summons for leave prevents the plaintiff from giving notice of acceptance. Rule 3(4) does provide that acceptance has the effect of staying the proceedings. I think that it would be most unfortunate if a plaintiff were able to defeat a defendant’s application for leave to withdraw a payment in by giving notice of acceptance before the defendant’s summons could be heard. Since the plaintiff’s acceptance would not have terminated the action, but merely stayed it, I think that the court may notionally remove the stay and proceed to hear the application. A plaintiff’s acceptance does not prevent the court from allowing a defendant to withdraw, but is obviously an important consideration to be taken into account in deciding whether he should be given leave to do so.’

Judges:

Judge Newey

Citations:

(1987) 7 Con LR 90

Citing:

Cited – Cumper v Pothecary 1941
The court considered the nature of a payment into court: ‘there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, . .

Cited by:

Approved – 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: 13 May 2022; Ref: scu.199957

Raja Setrucherla Ramabhadraraju v Maharajah of Jeypore: PC 1919

Citations:

All India Reports 1919 PC 150

Cited by:

Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.199472

Upper Agbrigg Assessment Committee v Bents Brewery Co: PC 1945

Judges:

Lord Greene MR

Citations:

[1945] 1 KB 196

Cited by:

Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.199473

Nana Ofori Atta (II) v Nana Abu Bonsra (II): PC 1958

(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, but it was complained that the title had been determined in previous proceedings, but the plaintiff had stood by without asserting his own claim. The principles derived from the Wytcherley case are not restricted to probate proceeings. Lord Denning said: ‘English law recognizes that the conduct of a person may be such that he is estopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings, as, for instance, when a tenant is sued for trespassing on his neighbour’s land and he defends it on the strength of the landlord’s title and does so by the direction and authority of the landlord. If the tenant loses the action, the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking an actual benefit from the judgment in the previous proceedings, such as happened in In re Lart, Wilkinson v. Blades [[1896] 2 Ch 788]. Those instances do not however cover this case, which is not one of active participation in the previous proceedings or actual benefit from them, but of standing by and watching them form out most giving evidence in support of one side or the other. In order to determine this question the West African Court of Appeal quoted from a principle. . . ‘ in Wytcherley.
He continued ‘Mr. Phineas Quass argued before their Lordships that the principle stated by Lord Penzance was confined to wills and representative actions and has never been extended further. . .
[The principle] may have been found appropriate in England only in special conditions. But there is no reason why in West Africa it should not be applied to conditions which are found appropriate for it there, but which have no parallel in England. It seems to be the recognized thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins, they reap the fruits of victory. If he fails, they fall with him and must take the consequences. It is now 25 years ago that the Chief Justice drew attention to this way of looking at litigation: see Yode Kwao v. Kwasi Coker [(1931) 1 WACA 162, 167], Appoh Ababio v. Doku Kanga [(1932) 1 WACA 253]. It has led the Court of Appeal in West Africa to look for a principle to meet the situation and they have found it in the principle stated by Lord Penzance: see Akwei v. Cofie [(1952) 14 WACA 143].

Judges:

Lord Denning

Citations:

[1958] AC 95

Jurisdiction:

Commonwealth

Citing:

Applied – Wytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .

Cited by:

Approved – House of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
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 . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.198734

Abley v Dale: 1851

The court discussed the literal rule for the interpretation of statutes: ‘If the precise words used are plain and unambiguous, in our judgment we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice’

Citations:

(1851) Jervis CJ

Jurisdiction:

England and Wales

Litigation Practice

Updated: 13 May 2022; Ref: scu.198834

Service Corporation International plc v Channel Four Television: ChD 1999

The court considered an application for an interlocutory injunction to restrain a broadcast, based on copyright. The defendant argued that this was merely an attempt to circumvent difficulties in a defamation action.
Held: Where an interim injunction in defamation would have been refused under the rule in Bonnard, it would be right to refuse such an injunction for parallel jurisdictions (in this case trespass and breach of copyright).
Lightman J said: ‘The plaintiffs claim that they are entitled to this relief on three grounds and I must consider each in turn. But before I do so I should consider the cause of action which is now disclaimed, and which was the initial basis of complaint, namely defamation. The reason that defamation is not and cannot be invoked is because no interlocutory injunction could be granted on this ground in view of the defendants’ plain and obvious intention to plead to any such claim the defence of justification. The invocation of other causes of action is necessary if there is to be any arguable claim to an interlocutory injunction. The rule prohibiting the grant of an injunction where the claim is in defamation does not extend to claims based on other causes of action despite the fact that a claim in defamation might also have been brought, but if the claim based on some other cause of action is in reality a claim brought to protect the plaintiffs’ reputation and the reliance on the other cause of action is merely a device to circumvent the rule, the overriding need to protect freedom of speech requires that the same rule be applied: : see Microdata v Rivendale [1992] FSR 681 and Gulf Oil v Page [1987] 1 Ch 327 at 334.
I have great difficulty in seeing the three alternative claims made in this case as other than attempts to circumvent the rule and to seek protection for the plaintiffs’ reputation.’

Judges:

Lightman J

Citations:

[1999] EMLR 83

Jurisdiction:

England and Wales

Citing:

Cited – Bonnard v Perryman CA 2-Jan-1891
Although the courts possessed a jurisdiction, ‘in all but exceptional cases’, they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that that defence . .
Cited – Microdata v Rivendale 1991
The need to protect freedom of speech overrode the need to protect a person’s trade reputation. . .
Cited – Gulf Oil (Great Britain) Limited v Page CA 1987
The plaintiff had contracted exclusively to supply to the defendants owners of petrol stations. On arrears arising, the plaintiff discontinued deliveries save on cash on delivery and direct debit terms. The defendants obtained supplies from another . .

Cited by:

Cited – Tillery Valley Foods v Channel Four Television, Shine Limited ChD 18-May-2004
The claimant sought an injunction to restrain the defendants broadcasting a film, claiming that it contained confidential material. A journalist working undercover sought to reveal what he said were unhealthy practices in the claimant’s meat . .
Cited – Boehringer Ingelheim Ltd and others v Vetplus Ltd CA 20-Jun-2007
The claimants appealed refusal of an order restricting comparative advertising materials for the defendant’s competing veterinary medicine. The claimant said that the rule against prior restraint applicable to defamation and other tort proceedings . .
Cited – RST v UVW QBD 11-Sep-2009
The applicant sought an interim and without notice injunction preventing the defendant from disclosing confidential information covered by an agreement between the parties.
Held: The order was made on a without notice application because there . .
Cited – Heythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice, Defamation

Updated: 13 May 2022; Ref: scu.197007

RCA Corporation v Reddingtons Rare Records: 1974

Interlocutory relief on the basis of the Norwich Pharmacal principle could be ordered, for example, on motion.

Citations:

[1975] 1 All ER 38, [1974] 1 WLR 1445

Citing:

Followed – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.193359

Woodward v Hutchins: CA 1977

An injunction was sought to restrain publication of confidential information about a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group’s press agent, the defendant’s role had been to see that the group received favourable publicity. However, after parting company, amicably, with the group, the defendant disclosed ‘no doubt, for a very considerable reward’ to the Daily Mirror ‘secrets’ about the group, including episodes of allegedly discreditable nature involving drink, sex and other matters.
Held: (ex tempore) The injunction was discharged. The group had sought publicity, giving one view of themselves. Where justification is to be pleaded to a defamation claim then an interim injunction to restrain publication will not be granted.
Bridge LJ said: ‘It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of an invasion of their privacy which shows them in an unfavourable light.’ and ‘If the defendants cannot in due course make good that claim [viz a summary of the stories that they wished to publish], it is quite clear that the plaintiffs will recover very considerable damages for libel, to say nothing of any damages they may recover for breach of confidentiality. But if the defendants substantiate the claim, it is clear that the plaintiffs will recover no damages in libel; and I think that they could only recover nominal damages for the breach of confidentiality, if there was one.’
Lawton LJ said: ‘The defendants have intimated that in so far as there is a claim for damages for libel there will be a plea of justification. Sir Peter, on behalf of the plaintiffs, has accepted, in the circumstances of this case at any rate, that it is pointless to make submissions to the court that his clients should be granted an injunction to restrain further publication of the libel.
What then is the position? The allegation of confidentiality is interwoven with the claim for damages for libel and, once that is understood, it seems to me that the balance of convenience is entirely on the side of allowing the publication to go on. The defendants should know and possibly do that, if they fail in their plea of justification, the damages are likely to be heavy. They may be heavier still by reason of the fact that the offence – because that is what libel is – has been made worse by the circumstances in which Mr. Hutchins has come to reveal what he knows about the plaintiffs. I find it impossible in this case to extricate the libel aspect from the confidentiality aspect. In those circumstances, it seems to me that it would be wrong to allow this injunction to continue.’
Lord Denning MR said: ‘If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected. In these cases of confidentaial information it is a question of balancing the public interest in maintaining the confidence agaiinst the public nterest in knowing the truth.’
and ‘There is a parallel to be drawn with libel cases. Just as in libel, the courts do not grant an interlocutory injunction to restrain publication of the truth or of fair comment. So also with confidential information. If there is a legitimate ground for supposing that it is in the public interest for it to be disclosed, the courts should not restrain it by an interlocutory injunction, but should leave the complainant to his remedy in damages. Suppose that this case were tried out and the plaintiffs failed in their claim for libel on the ground that all that was said was true. It would seem unlikely that there would be much damages awarded for breach of confidentiality. I cannot help feeling that the plaintiffs’ real complaint here is that the words are defamatory: and as they cannot get an interlocutory injunction on that ground, nor should they on confidential information.’

Judges:

Lord Denning MR, Bridge LJ, Lawton LJ

Citations:

[1977] 2 All ER 751, [1977 1 WLR 760

Jurisdiction:

England and Wales

Cited by:

Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Lion Laboratories Ltd v Evans CA 1985
Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. Two ex-employees approached the Press with four documents taken from Lion. The documents indicated that . .
Cited – Hyde Park Residence Ltd v Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA 10-Feb-2000
The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
Cited – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Cited – Heythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Information

Updated: 13 May 2022; Ref: scu.193374

Hillman’s Airways Ltd v SA d’Editions Aeronautiques Internationales: 1934

Judges:

Du Parcq J

Citations:

[1934] 2 KB 356

Cited by:

Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.193362

Z Ltd v A-Z and AA-LL: CA 1982

The court gave directions on how banks and other third parties were to respond to Mareva injunctions. The plaintiff had obtained orders against companies with bank accounts in England. The action was settled, but the banks sougfht clarification.
Held: The application was dismissed. The injunction had been properly granted. An innocent third party had to do all he could to comply with such an order. The effect of such an order was to permit the bank to break the terms of any contractual obligation to the customer to honour cheques etc. The remedy has hitherto been in a contempt action.

Judges:

Lord Denning MR

Citations:

[1982] 1 AB 558, [1982] 2 WLR 288, [1982] 1 All ER 556

Statutes:

Supreme Court Act 1981 37(3)

Jurisdiction:

England and Wales

Citing:

Applied – Rahman (Prince Abdul) bin Turki al Sudairy v AbuTaha CA 1-Jun-1980
Lord Denning, MR said: ‘So I would hold that a Mareva injunction can be granted against a man even though he is based in this country if the circumstances are such that there is a danger of his absconding, or a danger of the assets being removed out . .
Applied – Clipper Maritime Co Ltd v Mineralimportexport 1981
Innocent third parties, such as port authorities required by a freezing order to detain a vessel in port, are entitled to an indemnity. . .
Applied – Searose v Seatrain UK 1981
Third parties who are unconnected with a dispute but who incur expense in complying with an order may specifically be covered by a cross-undertaking as to their costs and otherwise. Robert Goff J said: ‘the banks in this country have received . .

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, Banking

Updated: 13 May 2022; Ref: scu.192614

Rahman (Prince Abdul) bin Turki al Sudairy v AbuTaha: CA 1 Jun 1980

Lord Denning, MR said: ‘So I would hold that a Mareva injunction can be granted against a man even though he is based in this country if the circumstances are such that there is a danger of his absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied.’

Judges:

Lord Denning MR

Citations:

[1980] CLY 2153, [1980] 1 WLR 1268, [1980] 3 All ER 409, [1980] 2 Lloyds Rep 465

Jurisdiction:

England and Wales

Cited by:

Applied – Z Ltd v A-Z and AA-LL CA 1982
The court gave directions on how banks and other third parties were to respond to Mareva injunctions. The plaintiff had obtained orders against companies with bank accounts in England. The action was settled, but the banks sougfht clarification.
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.192615

Ellis v Deheer: 1922

The court heard an application for a new trial of a civil action which had been tried before a jury on the ground that the verdict as delivered by the foreman was not the verdict of the jury.
Held: A jury’s deliberations cannot be questioned. ‘I desire to make it clear that the court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself. It has for many years been a well accepted rule that when once a verdict has been given it ought not to be open to an individual juryman to challenge it, or to attempt to support it if challenged. I have spoken of this as a rule of law, but it has also been generally accepted by the public as a rule of conduct, that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential.’ and ‘The reason why that evidence is not admitted is twofold, on the one hand it is in order to secure the finality of decisions arrived at by the jury, and on the other to protect the jurymen themselves and prevent their being exposed to pressure to explain the reasons which actuated them in arriving at their verdict. To my mind it is a principle which it is of the highest importance in the interests of justice to maintain, and an infringement of the rule appears to me a very serious interference with the administration of justice.’

Judges:

Bankes LJ, Atkin LJ

Citations:

[1922] 2 KB 113

Jurisdiction:

England and Wales

Citing:

Followed – Rex v Wooller 1817
Some of the jurors, although present when the verdict was delivered, were so placed that they were not able to hear what the foreman said and were in fact in disagreement with it.
Held: The exclusionary rule had not been infringed by evidence . .

Cited by:

Approved – Regina v BM and Another CACD 9-Dec-1996
A message was offered to one of the solicitors acting for a defendant from a relative of a juror after the trial.
Held: Rules against hearing of jury deliberations are wider than Contempt of Court Act. The court refused to commence any Young . .
Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Boston v W S Bagshaw and Sons (Note) CA 1966
Once a jury have given their verdict, and it has been accepted by the judge, and they have been discharged, they are not at liberty to say that they meant something different: ‘The reasons for this are twofold: first, to secure the finality of . .
Cited – Regina v Smith, Regina v Mercieca HL 16-Feb-2005
A member of the jury wrote to the judge saying that other members were failing to discharge their duties properly. Smith took a tactical decision not to seek a retrial. The judge saw counsel in chambers, after which the jury were reminded of their . .
Cited – Lalchan Nanan v The State PC 1986
(Trinidad and Tobago) The Board refused to admit evidence that four members of the jury, including the foreman, were acting under a misapprehension when they agreed to the verdict. However, the Board accepted the possibility that other cases might . .
Cited – Regina v Tantram; Regina v Bibby etc CACD 24-May-2001
The defendants appealed against their convictions for conspiracy in have combined to put into the human food chain poultry meat which had been condemned as unfit. The jury after retiremen had indicated that they had reached agreement on some . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.192249

In re Majory, a debtor: CA 1955

The debtor challenged the bankruptcy petition and receiving order saying that the creditor had attempted in connection with the proceedings to extort andpound;8 15s from the debtor in excess of the sums lawfully due under a court judgment. He said that this was ‘extortion’ in bankruptcy law, ie the oppressive use or threat of proceedings in order to obtain some collateral advantage, such that the court would not permit the creditor to make use of the process which he had abused.
Held: The court considered, obiter, the issue of a strike out of an action as an abuse of process.
Lord Evershed MR said: ‘The so-called ‘rule’ in bankruptcy is, in truth, no more than an application of a more general rule that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist, and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualifed from invoking the powers of the court by proceedings he has abused.’

Judges:

Lord Evershed MR

Citations:

[1955] Ch 600

Jurisdiction:

England and Wales

Cited by:

Approved – Speed Seal Ltd v Paddington CA 1985
The court was asked whether the defendant should be permitted to add to his pleadings a counterclaim asserting that the action was brought in bad faith for the ulterior motive of damaging the defendants’ business, and not for the protection of any . .
Cited – Pitman Training Ltd and Another v Nominet UK and Another ChD 22-May-1997
The defendant had received a request to register the domain name ‘pitman.co.uk’ from the claimants, who held the trade mark. The domain was not activated, and was de-registered by the defendants and then re-registered by another company. Action was . .
Cited – Land Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-Dec-2009
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
Cited – Hays Plc v Hartley QBD 17-May-2010
Mr Hartley operated a news agency, and provided to the publisher of the Sunday Mirror, MGN Ltd, allegations of racism that had been levelled at the claimant company by former employees. The allegations were reported in an article headed ”KKK . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 13 May 2022; Ref: scu.190158

Attorney-General v Vernazza: QBD 1959

During the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court’s power to restrain vexatious litigants from commencing proceedings a power to restrain them from pursuing existing proceedings. The Act was held to be procedural on the basis that it did not deprive the litigant of a right to bring proper proceedings and even if it had been regarded as substantive. In deciding whether any given proceedings are vexatious the court is entitled to look at the whole history of the matter and is not confined to such questions as whether an individual pleading discloses a cause of action. The effect of the new Act was retrospective since to hold otherwise would only lead to renewed proceedings.

Judges:

Lord Denning

Citations:

[1959] 2 All ER 200

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Litigation Practice

Updated: 12 May 2022; Ref: scu.190156

Re Chaffers, ex parte Attorney General: 1897

Wright J said: ‘The consideration of whether a person has habitually and persistently instigated vexatious legal proceedings without any reasonable ground does not depend on a minute examination of whether in each particular action there was a reasonable ground; we must consider the number of actions brought, their general content and their results.’

Judges:

Wright J

Citations:

(1897) 45 WR 365, (1897) 76 LT 351

Jurisdiction:

England and Wales

Cited by:

Cited – HM Attorney-General v Ian Richard Flack Admn 29-Nov-2000
A civil proceedings order was sought against the respondent. The respondent had commenced many actions against a particular company, which it was claimed were vindictive in nature.
Held: Though the earliest proceedings had been vexatious it . .
Cited – HM Attorney General v Pepin Admn 27-May-2004
Civil proceedings order. The defendant had commenced ten sets of proceedings which the court held amounted to serial and repeated litigation of the same points.
Held: The fact that new details had emerged which might throw new light on the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 May 2022; Ref: scu.190154

Attorney-General v Vernazza, In Re Vernazza: CA 1959

The respondent to an application to prevent him issuing proceedings without the court’s consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the compromised action. Lord Parker CJ said: ‘In considering whether the proceedings are vexatious one is entitled to, and must look at, the whole history of the matter, and it is not determined by whether the pleading discloses a cause of action. Indeed, that is the principle applied under the rules of court when application is made to strike out a pleading. Though the pleading may be in order, the court in its inherent jurisdiction, is entitled to look at affidavits as to the history of the matter, and if, in the light of that history the action is vexatious, the pleading can be struck out and the action dismissed.’

Judges:

Lord Parker CJ

Citations:

[1959] 1 WLR 622, [1960] 1 All ER 183

Jurisdiction:

England and Wales

Citing:

Appeal from – Attorney-General v Vernazza QBD 1959
During the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court’s power to restrain vexatious litigants from commencing proceedings a power to restrain them from . .
Appealed to – Attorney General v Vernazza HL 1960
Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order . .

Cited by:

Appealed to – Attorney-General v Vernazza QBD 1959
During the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court’s power to restrain vexatious litigants from commencing proceedings a power to restrain them from . .
Appeal from – Attorney General v Vernazza HL 1960
Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order . .
Cited – HM Attorney-General v Ian Richard Flack Admn 29-Nov-2000
A civil proceedings order was sought against the respondent. The respondent had commenced many actions against a particular company, which it was claimed were vindictive in nature.
Held: Though the earliest proceedings had been vexatious it . .
Cited – HM Attorney General v Foden Admn 7-Apr-2005
Application for Civil Proceedings Order.
Held: ‘This defendant has become a compulsive litigant who has lost touch with reality. Her remorseless pursuit of litigation is wholly without merit, is clearly vexatious and has perpetrated a waste of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 May 2022; Ref: scu.190155

H v Ministry of Defence: CA 1991

The plaintiff in a personal injury claim sought assessment of his damages by a jury. The judge held at first instance that this was a matter for his discretion under the Act, and exercised it in favour of the plaintiff.
Held: The defendant’s appeal suceeded. The Act in section 69(3) introduced a bias against jury trials in civil cases where they did not fall under section 69(1), and a jury trial would be appropriate only in exceptional cases. The assessment of damages in personal injury trials was one of comparison of the injury as against a table of comparable injuries. A jury trial was inappropriate in this case.

Citations:

[1991] 2 All ER 834, [1991] 2 WLR 1192

Statutes:

Supreme Court Act 1981 69(3) 69(1)

Jurisdiction:

England and Wales

Litigation Practice, Personal Injury

Updated: 12 May 2022; Ref: scu.189958

Cordell v Second Clanfield Properties Ltd: 1969

In a fast developing area of law, judges should acknowledge the value of ‘fertilisers of thought’: ‘argued law is tough law . . I would expose those views to the testing and refining process of argument. Today, as of old, by good disputing shall the law be well known’.

Judges:

Megarry J

Citations:

[1969] 2 Ch 9

Cited by:

Cited – Commerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
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 – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 May 2022; Ref: scu.188267

Jones v S E and Chatham Railway: 1918

It is a general rule of evidence that statements may be used against a witness as admissions but that counsel is not entitled to bring evidence of statements on other occasions by the witness to confirm the testimony.

Citations:

(1918) 87 LJ KB 775

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Ali CACD 14-Nov-2003
The defendant appealed conviction and sentence for sexual assaults on young girls. He complained that the prosecution had been allowed to bring in evidence of previous consistent statements.
Held: The evidence of the mother had been admitted . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 May 2022; Ref: scu.187959

Kwik Save Stores Ltd v Swain: EAT 1997

An appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors.
When considering barring a party for late filing of a document, the absence of a good reason for a response not being entered in time is not, itself, determinative, but that other matters require to be considered by a Tribunal in the exercise of its discretion, including the merits of the defence set against the prejudice to the Claimant, the length of any delay, and the extent of any prejudice to the parties. Mummery J said that if the delay: ‘is the result of a genuine misunderstanding or an accidental or understandable oversight, the Tribunal may be much more willing to allow the late lodging of a response.’
The employer appealed against the refusal to extend time for a response under Rule 3. The employer lodged affidavits and exhibits sworn after the Industrial Tribunal Decision, in the EAT. Mummery P said: ‘We have read some of the correspondence exhibited to the affidavits, but have paid little attention to the contents of the affidavits themselves. As an appeal to this tribunal is only on a question of law, we find difficulty in understanding the basis on which the employers could properly file affidavit evidence on matters which could, and should, have been put before the industrial tribunal chairman on the applications for extensions of time. Reference was made to the decision of this appeal tribunal in Charlton v Charlton Thermosystems (Romsey) Ltd [1995] ICR 56 which sets out a procedure for affidavit evidence by an appellant who has never entered a notice of appearance and is seeking to appeal against a substantive decision on the merits reached adversely to him. In those cases the appeal tribunal laid down a procedure, at p. 60E-H, so that the tribunal could be satisfied that the appellant against the substantive decision had a reasonably arguable defence on the merits, as well as a satisfactory explanation for his failure to enter a notice of appearance or to apply for an extension of time for entering a notice of appearance. If the tribunal were not satisfied on those matters, then the appeal would be dismissed at a preliminary hearing.
These cases are not, however, appeals against a substantive decision on the merits. They are appeals against the interlocutory refusal of the chairman to grant an extension of time for serving a notice of appearance before the full hearing on the merits has taken place. In such cases it is incumbent upon the applicant for an extension of time to place all relevant documentary and other factual material before the industrial tribunal in order to explain (a) non-compliance with the Rules and (b) the basis on which it is sought to defend the case on the merits. Depending on the nature and circumstances of the case, that may be done by letter to the tribunal, or by affidavit verifying the factual position or at an oral hearing. The admission of fresh evidence on the hearing of an appeal against the refusal of an extension of time by the industrial tribunal is rarely necessary and is unjustifiable unless the strict requirements of Ladd v Marshall [1954] 1 WLR 1489 are satisfied: see Wileman v Manilec Engineering Ltd [1988] ICR 318.’

Judges:

Mummery J

Citations:

[1997] ICR 49

Statutes:

Industrial Tribunal Rules 1993 3

Jurisdiction:

England and Wales

Citing:

Cited – Charlton v Charlton Thermosystems (Romsey) Ltd EAT 1995
EAT The EAT set out a procedure for affidavit evidence by an appellant who had never entered a notice of appearance and was seeking to appeal against a substantive decision on the merits reached adversely to him. . .

Cited by:

Cited – Bryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
Cited – Moroak T/A Blake Envelopes v Cromie EAT 19-Apr-2005
moroak_cromieEAT2005
EAT Response lodged at the Employment Tribunal 44 minutes late and the Employment Tribunal ordered that the Respondent could take no part in the proceedings and refused to review that order on the basis it had no . .
Cited – Nelson v Newry and Mourne District Council NIIT 26-Oct-2006
. .
Still good law – Pendragon Plc T/A CD Bramall Bradford v Copus EAT 11-Jul-2005
EAT Practice and Procedure
Response served by Respondent out of time and judgment in default entered. Chairman found that pursuant to Rule 33 of the new Rules he had no discretion to review the default . .
Cited – NSM Music Ltd v J H Leefe EAT 14-Dec-2005
EAT Practice and Procedure: Appearance/Response, Review and Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons . .
Cited – KLT Construction Ltd v Swain EAT 8-Jul-2010
EAT PRACTICE AND PROCEDURE – Appearance/response
At a review of a default judgment, made because of the late response, the Employment Judge did not consider the prospect of its success. Given that error, . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 12 May 2022; Ref: scu.186767

Fleet Mortgage and Investment Company Limited v Lower Maisonette: 1972

Natural justice required the High Court Rules to be construed as requiring the tenant to be given notice of the landlord’s application for leave to issue a writ of execution following an alleged breach of a conditional possession order.

Citations:

[1972] 1 WLR 765

Jurisdiction:

England and Wales

Cited by:

Cited – Jephson Homes Housing Association v Moisejevs and Another CA 1-Nov-2000
A possession warrant, properly issued and executed in ignorance of a payment into court by the tenant was not an abuse of process. The tenant had paid funds into court in the mistaken belief that this would be effective to set aside the warrant. She . .
Cited – Pritchard and Others v Teitelbaum and Others ChD 20-Apr-2011
The claimants sought orders allowing them to re-enter the tenanted properties after eviction in order to allow them recover their possessions left behind. Proceedings for recovery of possession had continued over several years.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 12 May 2022; Ref: scu.187052

Darren Watson v Chief Constable of Cleveland Police: CA 2001

The Court of Appeal should only interfere with a judge’s decision to limit cross-examination if the decision is outside an acceptable range of decisions at which a judge can legitimately arrive

Judges:

Sir Murray Stuart-Smith

Citations:

[2001] EWCA Civ 1547

Jurisdiction:

England and Wales

Cited by:

Cited – Hayes and others v Transco Plc CA 17-Sep-2003
The defendant appealed awards against it of disturbance payments to the claimants under their contracts of employment. The claimants had produced documents at the last minute before the trial but it was arguable that since these documents were those . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 May 2022; Ref: scu.186278

Allan and Sons Bill Posting Limited v Edinburgh Magistrates: 1909

In asking whether an appeal was available, the presence or absence of a record of the decision at first instance is an indicator, since an appeal is more difficult without.

Judges:

Lord Low

Citations:

1909 SC 70

Cited by:

Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 12 May 2022; Ref: scu.184725

Denne v Denne: 1977

Where the parties, having settled their case, agreed for a costs judge to fix the costs, there was no appeal from his judgment.

Citations:

(1977) CAT 4743

Cited by:

Doubted – BCT Software Solutions Ltd v C Brewer and Sons Ltd CA 11-Jul-2003
A copyright infringement case had been settled, but the court was to quantify and apportion costs. Some andpound;700,000 having been spent when the damages amounted to andpound;10,000.
Held: Denne did not oust the court’s jurisdiction to hear . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 12 May 2022; Ref: scu.184526

Smith v Buchanan: 1800

The discharge of a debt or liability by the law of a country other than that in which the debt arises, does not relieve the debtor in any other country.

Citations:

(1800) 1 East 6

Cited by:

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

Litigation Practice

Updated: 12 May 2022; Ref: scu.183536

Broxton v McClelland: 6 Nov 1992

Citations:

Unreported, 6 November 1992

Jurisdiction:

England and Wales

Cited by:

Cited – Abraham and Another v Thompson and Others ChD 12-May-1997
The court may issue a stay of proceedings pending disclosure of the source of funding of an action, without there needing to be any suggestion of champerty or other illegality. The first plaintiff was ordered to disclose to the 5th and 6th . .
See Also – Broxton v McClelland CA 31-Jan-1995
The defendants issued various applications to strike out the claim, including a claim of abuse of process. The action was being financially maintained by a third party. The defendants contended that the maintainer’s purpose was to oppress and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 May 2022; Ref: scu.183803

Galbraith v Grimshaw and Baxter: CA 1910

A garnishee order nisi does not operate as a transfer of the property in the debt, but it is an equitable charge on it, and the garnishee cannot pay the debt to any one but the garnishor without incurring the risk of having to pay it over again to the creditor.

Judges:

Farwell LJ

Citations:

[1910] 1 KB 339

Jurisdiction:

England and Wales

Cited by:

Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Appeal From – Galbraith v Grimshaw and Baxter HL 2-Jan-1910
Where a Scottish sequestration occurred shortly after an English garnishee order nisi, the judgment creditor prevailed over the trustee in bankruptcy, although the result would have been different if both the attachment and the bankruptcy had . .
Cited – Rubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 12 May 2022; Ref: scu.183521