Category: Litigation Practice

Eckersley v Binnie: CA 1988

The court considered the duties of a judge considering conflicting expert evidence: ‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons. The advantages enjoyed by the trial judge are great indeed, but they do not absolve the Court of Appeal from weighing, considering and comparing the evidence in the light of his findings, a task made longer but easier by possession of a verbatim transcript usually (as here) denied to the trial judge.’

Judges:

Bingham LJ

Citations:

[1988] 18 Construction Law Reports 1, (1988) 18 Con LR 1

Jurisdiction:

England and Wales

Cited by:

Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Cooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Cited – Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government and Another Admn 5-Dec-2014
The claimant appealed against refusal of permission to erect a six turbine wind farm. The inspector had recommended the plan, but the defendant had decided against it.
Held: The claim failed. The planning inspector’s report is the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.226032

Regina v Knightsbridge Crown Court ex parte International Sporting Club (London) Ltd and Another: QBD 1981

The applicant’s gaming licence had been cancelled by the Gaming Licensing Committee on the grounds that it was not a fit and proper person to hold a gaming licence. The applicant entered a notice of appeal and before the hearing of the appeal radically restructured itself. Before the Crown Court the applicant contended that despite past mis-conduct the applicant was now reformed.
Held: A professional judge has a clear general duty to give reasons for his decision.
Griffiths LJ said: ‘We would have expected the judge’s judgment to have followed this basic outline: first a consideration of and decisions upon whether it had been shown that the companies were not fit and proper persons to hold a licence . . or that while the licences had been in force the relevant premises had been used for an unlawful purpose . . ; and secondly, assuming findings against the companies on either or both of these grounds, whether the Court should exercise its discretion to cancel the licences.’

Judges:

Griffiths LJ

Citations:

[1982] 1 QB 304, [1981] 3 All ER 417

Jurisdiction:

England and Wales

Cited by:

Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.226031

Lord Strathcona Steamship Co Ltd v Dominion Coal Co Ltd: HL 1926

Citations:

[1926] AC 108

Cited by:

Cited – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.225443

Mulholland v Mitchell: HL 1971

The House was asked whether to re-open an assessment of damages where there had been a very marked change in the injured person’s situation shortly after the trial. There was no suggestion of fraud. The Court of Appeal had decided to admit the fresh evidence with a view to reassessing the damages.
Held: The appeal was dismissed. The circumstances were exceptional. The exercise by the Court of Appeal of its discretion to admit fresh evidence as to matters arising after the date of the trial was largely a matter of discretion and degree. The principle that there should be finality in litigation should be borne in mind and evidence could not be admitted of every change which might have occurred since trial.
Lord Hodson said: ‘In this case I think that it can be fairly argued that the basis upon which the case was decided at the trial was suddenly and materially falsified by a dramatic change of circumstances.
An appeal on the whole question of damages is pending and it would be unsatisfactory for the Court of Appeal to deal with that appeal without taking into account the falsification, if such there be, of the basis of the trial judge’s award. In the absence of the fresh evidence, the Court of Appeal would be restrained from dealing with the reality of the case before it.’
Lord Wilberforce said: ‘I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree ( Murphy [1969] 1 WLR 1023, 1036). Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judges’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that Court.’
Lord Pearson explained the usual position saying: ‘The normal rule in accident cases is that the sum of damages falls to be assessed once and for all at the time of the hearing. When the assessment is made, the court has to make the best assessment it can as to events which may happen in the future. If further evidence as to the new events were too easily admitted, there would be no finality in litigation.’

Judges:

Lord Hodson, Lord Wilberforce, Lord Pearson

Citations:

[1971] AC 666, [1971] 1 WLR 93

Cited by:

See Also – Mitchell v Mulholland (No. 2) CA 1972
The plaintiff was severely injured, and recovered substantial damages. andpound;20,000 for pain and suffering and loss of amenity, and andpound;21,350 for nursing care. The court declined to adjust the award for anticipated inflation: ‘an award of . .
Cited – Secretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
Cited – Vernon v Bosley (3) CA 19-Dec-1996
The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.225441

In re S (A Minor) (Independent Representation): CA 1993

Sir Thomas Bingham MR said: ‘Different children have differing levels of understanding at the same age. And understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child’s understanding is sufficient.’ and ‘The 1989 Act enables and requires a judicious balance to be struck between two considerations. First is the principle, to be honoured and respected, that children are human beings in their own right with individual minds and wills, views and emotions, which should command serious attention. A child’s wishes are not to be discounted or dismissed simply because he is a child. He should be free to express them and decision-makers should listen. Second is the fact that a child is, after all, a child. The reason why the law is particularly solicitous in protecting the interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible. Everything of course depends on the individual child in his actual situation. For purposes of the Act, a babe in arms and a sturdy teenager on the verge of adulthood are both children, but their positions are quite different: for one the second consideration will be dominant, for the other the first principle will come into its own. The process or growing up is, as Lord Scarman pointed out in Gillick …[1986] AC 112 at p 186B [1986] 1 FLR 224 at p250H), a continuous one. The judge has to do his best, on the evidence before him, to assess the understanding of the individual child in the context of the proceedings in which he seeks to participa

Judges:

Sir Thomas Bingham MR

Citations:

[1993] Fam 263, [1993] 2 FLR 437

Statutes:

Family Proceedings Rules 1991 9.2A(6), Children Act 1989

Jurisdiction:

England and Wales

Cited by:

Cited – Mabon v Mabon and others CA 26-May-2005
In the course of an action regarding their residence arrangements, the older children of the family sought an order to be allowed separate legal representation, and now appealed a refusal.
Held: The rights of freedom of expression and to . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 30 April 2022; Ref: scu.225554

Page One Records Ltd v Britton: 1967

The court was asked to consider a five year contract to manage a pop group, in respect of which contract the manager claimed injunctive relief to prevent the group working outside the agreement.
Held: The injunction was refused. The manager was left to its prima facie claim to damages, on the ground that the contract involved obligations of trust and confidence and was more a joint venture, approaching the relationship of partnership, than anything else. He also thought that an injunction would amount to forcing the pop group to remain idle or to continue to employ in a fiduciary capacity a manager and agent in whom they ‘for reasons good, bad or indifferent’ had lost confidence ‘and who may, for all I know, fail in its duty to them’.

Judges:

Stamp J

Citations:

[1967] 1 WLR 157

Cited by:

Cited – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.225447

Capita Financial Group Ltd v Rothwells Ltd: 20 Apr 1989

(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue the action.
Held: It was a given that a plaintiff in this position must demonstrate a prima facie case. It had not done so here, but an arguable case had been shown, and this could be supplemented later by affidavit evidence. The claim could proceed.

Judges:

Rogers CJ

Citations:

(1989) 15 ACLR 348

Links:

NSW

Cited by:

Cited – Enron Metals and Commodity Ltd (in Administration) v HIH Casualty and General Insurance Limited ChD 10-Mar-2005
The claimant company sought leave whilst in administration to bring arbitration proceedings against the defendant insurers.
Held: In exercising the discretion given by the section, the court had only to decide whether the claim was so bad that . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice, Commonwealth

Updated: 30 April 2022; Ref: scu.225880

Coles v Odhams Press Ltd: 1936

Lord Hewart CJ said that courts should avoid ‘taking blind shots at a hidden target’.

Judges:

Lord Hewart CJ

Citations:

[1936] 1 KB 416

Cited by:

Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.225201

Harrington v Polytechnic of North London: 1984

There is a public interest in not involving third parties in litigation if this can be avoided.

Judges:

Sir John Donaldson MR

Citations:

[1984] 1 WLR 1293

Cited by:

Cited – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.224975

CHC Software Care v Hopkins and Wood: 1993

The jurisdiction to require discovery of documents from a third party is not restricted to seeking information from an innocent third party. The third party may himself be one of the wrongdoers.

Judges:

Mummery J

Citations:

[1993] FSR 241

Citing:

Cited – 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 . .

Cited by:

Cited – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.224974

Carnegie v Glessen and Others: CA 1 Mar 2005

A dispute had been settled by imposition of a charging order against property expressed in a foreign currency. The claimant now said such an order was not possible, and had been made by mistake correctable under the slip rule.
Held: The Master had had the power to make the order he had made. Though he may have had the power to revise it as a mistake, the Master had made it clear he would not have done so. Appeal dismissed. The claimant had only sought to revise the order when currency fluctuations had moved against him.

Judges:

Ward, Dyson Carnwath LJ

Citations:

Times 14-Mar-2005

Jurisdiction:

England and Wales

Citing:

Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – Ezekiel v Orakpo CA 16-Sep-1996
A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for . .
Effective – Practice Direction (Judgments: Foreign Currency) 1976
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.223980

Director General of Fair Trading v Tobyward: ChD 1989

The company advertised a product as assisting in permanent weight loss. The Advertising Standards Authority had found the advertisements to be misleading, but the company persisted, and the Authority referred the case to the applicant, who sought an injunction.
Held: The court had jurisdiction to grant the injunction requested. Hoffmann J required no cross-undertaking in damages from the Director. Whatever he might think about the policy, it is well established that ‘the usual practice is that no cross undertaking is required’ when the Crown is seeking an interim injunction to enforce the law.

Judges:

Hoffmann J

Citations:

[1989] 2 All ER 266, [1989] 1 WLR 517

Statutes:

Control of Misleading Advertisements Regulations 1988 (1988 No 915)

Cited by:

Cited – The Financial Services Authority v Sinaloa Gold Plc and Others SC 27-Feb-2013
The FSA sought injunctions to restrain the activities of the first defendants, including asset freezing orders under section 380 of the 2000 Act. The defendant’s bankers objected that they would be prejudiced by the restrictions without the FSA . .
Lists of cited by and citing cases may be incomplete.

Media, Consumer, Litigation Practice

Updated: 30 April 2022; Ref: scu.223972

Savill Bros v Langman: 1898

The court considered whether an agreement was champertous in the context of an application to licensing justices who were not considered to be sitting as a court and before whom there is no contest.

Citations:

[1898] 79 LT 44

Cited by:

Considered – Picton Jones and Co v Arcadia Developments 1989
The plaintiff chartered surveyors agreed to act in the purchase of amusement arcades, on the basis that their fees would be payable ‘in the event of ultimate success.’ The work involved applications for gaming licences and planning permissions. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 30 April 2022; Ref: scu.223959

Williams v Home Office (No 2): 2 Jan 1981

The plaintiff prisoner had been transferred from ordinary prison to a special control unit which had been established at the prison as a means of containing and controlling prisoners who were considered to be troublemakers and inducing them to realise that it was in their own interest to improve their behaviour. He complained that he had not had a fair opportnity to challenge the decision to transfer him.
Held: The decision to transfer the plaintiff to the control unit was an administrative and non-punitive decision taken to relieve the prison system. There is a distinction between disciplinary offences and transfers between status in the need for procedures. In relation to prison regimes that whatever the mischief the authorities aimed to prevent or punish, there was an ‘irreducible minimum, judged by contemporary standards of public morality’ below which standards of treatment should not fall. Tudor Evans J said: ‘it is well established that it is inappropriate to grant declarations which are academic and of no practical value. ‘

Judges:

Tudor Evans J

Citations:

[1981] 1 All ER 1211

Citing:

See Also – Williams v Home Office (No 2) 1981
Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
Cited – Merricks and Another v Nott-Bower CA 1964
The plaintiff police officers had been disciplined by transfer in 1957 as a result of a report by an officer who was subsequently discredited. After their accuser was discredited they sought a declaration that the disciplinary action taken against . .

Cited by:

See Also – Williams v Home Office (No 2) 1981
Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Prisons, Natural Justice

Updated: 30 April 2022; Ref: scu.223348

Macleay v Macdonald: IHCS 1928

When an interlocutor is reclaimed against, the effect from the time the reclaiming motion is marked is to sist, or stay, all execution on the decree which has been pronounced in the Outer House until the reclaiming motion has been determined: rule 38.8.

Judges:

Lord Anderson

Citations:

1928 SC 776

Cited by:

Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 30 April 2022; Ref: scu.222551

Harrison-Broadley v Smith: CA 1964

The court has an inherent power to make declarations even though they have not been claimed in the proceedings. In order to give effect to a partnership, the partner who owns the premises on which the partnership business is carried on is taken to have granted a licence to the other partner or partners to enter upon the premises for the purposes of the partnership business
Pearson LJ considered it unnecessary to decide what ‘the strictly correct practice should be, because it is perfectly plain that this court ought to make some declaratory order’, even though none had been pleaded.

Judges:

Harman, Pearson and Davies LJJ

Citations:

[1964] 1 WLR 456

Jurisdiction:

England and Wales

Citing:

Cited – Goldsack v Shore CA 1950
Lord Evershed said: ‘If the subsection applies to it, it must be capable of being so modified (and that must mean modified consistently with its own terms) as to become enlarged into a tenancy from year to year.’ . .

Cited by:

Cited – Cowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
Cited – Lie v Mohile ChD 11-Nov-2014
The parties had been in partnership as doctors in general practice. The respondent challenged an order made without notice restraining actions which might inhibit the claimant operating his practice. On oder dissolving the partnership had already . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 30 April 2022; Ref: scu.222829

Duke v GEC Reliance Systems Limited: CA 16 Feb 1987

The court was said to have failed to have proper regard to a European Directive.
The court discussed the meaning of the phrase ‘per incuriam’: ‘I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the court had this material, it must have reached a contrary decision . . I do not understand the doctrine to extend to a case where, if different arguments had been placed before it, or if different material had been placed before it, it might have reached a different conclusion.’

Judges:

Lord Donaldson MR

Citations:

[1988] QB 108

Jurisdiction:

England and Wales

Citing:

Appeal from – Duke v Reliance Systems Limited EAT 1982
The EAT was asked whether a policy in regard to a retiring age had been communicated to employees or whether there was evidence of any universal practice to that effect. Browne-Wilkinson J said: ‘[T]here was no evidence that the employers’ policy of . .

Cited by:

Appeal from – Duke v GEC Reliance Systems Limited HL 2-Jan-1988
The court was asked about the differential in retirement ages between men and women in private sector employment, and whether it constituted sex discrimination.
Held: Section 2(4) of the 1972 Act did not allow a British Court to distort the . .
Cited – Saggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, European

Updated: 30 April 2022; Ref: scu.222588

Birminham City Council and Another v Yardley: CA 9 Dec 2004

The litigant was informed before the case that the judge was from the same chambers as counsel for the opposing side.
Held: Such a litigant if he wanted to complain of bias must do so immediately. The judgment had been delivered only in draft form, but remained effective and binding.

Judges:

Kennedy LJ, Jacob LJ, Gage LJ

Citations:

Times 13-Dec-2004

Jurisdiction:

England and Wales

Citing:

Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.221602

Regina v A Circuit Judge (sitting at Norwich County Court) ex parte Wathen: QBD 1976

Lessors claimed for arrears of rent, forfeiture of the lease and possession of the premises. The lessee admitted the arrears, advanced no defence and did not seek an adjournment. The judge, of his own motion, adjourned the hearing because the lessee, although without means at the time, had an expectation of receiving certain monies under a trust of an uncertain amount at an uncertain date. The hearing was resumed at the adjourned date, and the judge adjourned it for a second time. The lessors applied for an order of mandamus requiring the judge to hear and determine the claim.
Held: The judge had been entitled to adjourn the action under the section, on the first occasion, but not on the second. The word ‘shall’ required the judge to proceed forthwith to judgment for a plaintiff who had without doubt established his claim to relief under the section. Nevertheless, the judge was entitled to adjourn the claim provided that he was acting ‘judicially’. On the facts of that case, in adjourning the claim on the first occasion, the judge was acting judicially: ‘The view that I have formed is that, paying particular regard to section 191 of the County Courts Act 1959, the judge cannot be criticised for taking it into his own hands on the first occasion to adjourn the matter on the basis that he was not then in a position to be able to decide with any degree of accuracy the time which he would give to the lessee to fulfil the term relating to the rent, having regard to the additional factor that he could not impose a term of less than 28 days anyway’ and ‘the allowance of time is a discretionary matter’, although this did not diminish the force of the use of the word ‘shall’ in the section. For this reason: ‘I do not believe that a judge can inevitably be criticised for not proceeding to judgment forthwith, for example, on the first occasion when the matter comes before him if something of materiality remains uncertain as a matter of evidence. To adjourn a case on virtually the same ground again is, however, I think impermissible. A judge, faced with the problems which confronted the judge here, should act strictly in accordance with the law as laid down in section 191 and give the plaintiff the relief which he seeks.’

Judges:

Watkins J

Citations:

(1976) 33 P and CR 423

Statutes:

County Courts Act 1959 191(1)

Cited by:

Cited – North British Housing Association Ltd v Matthews, Same v Others CA 21-Dec-2004
In each case the tenants requested adjournment of the possession proceedings brought against them by the landlord for arrears of rent to allow them time to bring the arrears below the level at which a possession order could be made. In each case it . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Landlord and Tenant

Updated: 30 April 2022; Ref: scu.221437

Birmingham Citizens Permanent Building Society v Caunt: 1962

The court considered whether there it had jurisdiction to refuse to order possession in favour of a legal mortgagee under an instalment mortgage under which, by reason of default, the whole money had become payable.
Held: The court made an extensive review of the authorities. Russell J said: ‘where (as here) the legal mortgagee under an instalment mortgage under which by reason of default the whole money has become payable, is entitled to possession, the Court has no jurisdiction to decline the order or to adjourn the hearing whether on terms of keeping up payments or paying arrears if the mortgagee cannot be persuaded to agree to this course. To this the sole exception is that the application may be adjourned for a short time to afford to the mortgagor the chance of paying off the mortgage in full or otherwise satisfying him; but this should not be done if there is no reasonable prospect of this occurring. When I say the sole exception, I do not, of course, intend to exclude adjournments which in the ordinary course of procedure may be desirable in circumstances such as temporary inability of a party to attend, and so forth.’

Judges:

Russell J

Citations:

[1962] 1 Ch 883

Jurisdiction:

England and Wales

Cited by:

Cited – North British Housing Association Ltd v Matthews, Same v Others CA 21-Dec-2004
In each case the tenants requested adjournment of the possession proceedings brought against them by the landlord for arrears of rent to allow them time to bring the arrears below the level at which a possession order could be made. In each case it . .
Cited – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land

Updated: 30 April 2022; Ref: scu.221436

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 – requirement of disclosure to the court.

Judges:

Colman J

Citations:

Unreported, 3 December 1997

Citing:

See Also – 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 . .

Cited by:

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

Litigation Practice

Updated: 30 April 2022; Ref: scu.220817

Guarantee Trust Co of New York v Hannay and Co: 1915

A negative declaration should be granted by the court only in exceptional circumstances: ‘I think that a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made, but that in practically every case the person asking it will be left to set up his defence in the action when it is brought.’

Judges:

Pickford LJ

Citations:

[1915] 2KB 536

Cited by:

Limited – Camilla Cotton Oil Co v Granadex SA CA 1975
. .
Limited – Camilla Cotton Oil Co v Granadex SA HL 1976
The jurisdiction to grant a negative declaration was not as confined as suggested by Pickford LJ, but his words ‘warn us that we must apply some careful scrutiny’. . .
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – Messier-Dowty Ltd and Another v Sabena Sa and Others CA 21-Feb-2000
The defendants sought a declaration that they would not be liable in respect of their potential involvement in a pending action. The appellants asserted that such a declaration could not be granted since no proceedings were yet in issue. The court . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.220699

Kuwait Airways Corporation v Iraqi Airways Company (No. 2): ComC 27 Nov 1997

First defendant’s solicitors had not received sufficient funds to cover the costs of trial and had previously obtained the leave of the judge to come off the record. They now applied to resume the trial. The judge ordered that the trial be resumed before him as soon as possible with the first defendants paying the costs thrown away and providing security for costs in the sum of andpound;50,000.

Judges:

Mance J

Citations:

Unreported, 27 November 1997

Citing:

Appealed to – Kuwait Airways Corporation v Iraqi Airways Company (Body Corporate) Republic of Iraq CA 4-Dec-1997
Leave to appeal against interim procedural order. . .

Cited by:

Appeal from – Kuwait Airways Corporation v Iraqi Airways Company (Body Corporate) Republic of Iraq CA 4-Dec-1997
Leave to appeal against interim procedural order. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.220815

Stockler v Fourways Estates Ltd: 1984

The rule that an ordinary freezing order does not entitle a party in whose favour it was granted to say that he had a property or security interest in the respondent’s assets in question, applies where a freezing order fixes on a single specified asset and even where that asset is an interest in land.

Citations:

[1984] 1 WLR 25

Cited by:

Cited – Ernst Kastner v Marc Jason, Davis Sherman, Brigitte Sherman CA 2-Dec-2004
The parties had agreed that their dispute should be resolved before the Jewish Beth Din according to Jewish substantive and procedural law. K was granted an interim freezing order. The defendant sold the asset, and K sought to assert a charge.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.220551

Alltrans Express Limited v CVA Holdings Limited: CA 1984

The plaintiff claimed damages for breach of contract and obtained summary judgment. After a 15 day hearing on the assessment of damages the plaintiffs were awarded andpound;2. The defendant had not paid money into court and the assessor considered the plaintiff to be the successful party and awarded the plaintiffs their costs.
Held: The appeal was allowed. The consequence of the summary judgment was that the plaintiffs were entitled at least to nominal damages and the actual issue between the parties at the hearing was whether the plaintiffs were entitled to more than nominal damages and on that issue the defendant has succeeded. Further it was found that a payment into court of andpound;2 would not have been accepted by the plaintiffs and would not have made any difference to the proceedings so it was wrong to hold that the absence of a payment into court made the plaintiffs the successful party.

Citations:

[1984] 1 All ER 685

Jurisdiction:

England and Wales

Litigation Practice

Updated: 30 April 2022; Ref: scu.219700

Third Chandris Shipping Corporation v Unimarine SA: CA 1979

The court gave guidelines for the granting of Mareva injunctions as follows: ‘(i) The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know. . (ii) The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant. (iii) The plaintiff should give some grounds for believing that the defendant has assets here . . (iv) The plaintiff should give some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied. (v) The plaintiff must, of course, give an undertaking in damages — in case he fails in his claim or the injunction turns out to be unjustified in a suitable case this should be supported by a bond or security: and the injunction only granted on it being given, or undertaken to be given’.
Mustill J noted that such applications were being made at a rate of about twenty per month.

Judges:

Lord Denning MR, Mustill J

Citations:

[1979] QB 645

Jurisdiction:

England and Wales

Citing:

Cited – Mareva Compania Naviera SA v International Bulkcarriers SA CA 1-Feb-1975
An ex parte order was sought by the plaintiff to restrain the defendant dispersing his assets.
Held: The court granted the ad personam order requested making use of the jurisdiction given to it by the 1925 Act: ‘A mandamus or an injunction may . .

Cited by:

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: 30 April 2022; Ref: scu.219681

Nippon Yusen Kaisha v Karageorgis: CA 1975

The plaintiff company had chartered a ship to the defendants. A large sum was now claimed for hire, and a string prima facie case made out. The charterers could not be found but there was evidence of funds at a bank in London. An ex parte application to grant an injunction restraining the charterers from disposing of or removing from the jurisdiction any of the assets which were within the jurisdiction was refused. The company appealed.
Held: The appeal succeeded. The court ‘rediscovered’ its ability to make interim asset freezing orders.

Judges:

Lord Denning MR

Citations:

[1975] 1 WLR 1093

Jurisdiction:

England and Wales

Cited by:

Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
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: 30 April 2022; Ref: scu.219680

Institute of Patent Agents v Lockwood: 1894

The court could apply a rectifying construction to conflicting provisions an Act where necessary.
Lord Herschell LC said: ‘You have to try and reconcile [the provisions] as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other.’

Judges:

Lord Herschell LC

Citations:

[1894] AC 347

Cited by:

Cited – Attorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.216533

Re Continental Assurance Co of London plc (No.2): 1988

Directors of a company in creditors’ voluntary liquidation sought to strike out an application by the liquidators seeking relief against them for wrongful trading and breach of fiduciary duty. They asserted that the liquidators’ application was procedurally irregular since it had been made by way of ordinary application, rather than by an originating application.
Held: The proceedings should have been started by originating application: ‘The practice of the court, as I understand it, is this. Where there has been a compulsory winding up, insolvency proceedings have started pursuant to which applications can be made by way of ordinary application. It is the practice to use ordinary applications where the relief being sought is relief particular to the liquidator or to the general body of creditors as represented by him. Thus, applications to set aside transactions for preference are normally brought where there is a compulsory liquidation by ordinary application. The position is different where, as here, the winding up is a creditors’ voluntary winding up. That, notwithstanding the submissions of Mr Atherton, is not, in my judgment, a proceeding so as to constitute an insolvency proceeding within r7. It does not seem to me that it is possible to say that where, in a creditors’ voluntary liquidation, an application in another matter has been made by way of originating application, all subsequent court proceedings can be commenced by ordinary application using the number which the first originating application has taken. It seems to me that in a creditors’ winding up, where it is intended to bring proceedings in a particular matter against particular respondents or defendants, an originating application should be issued. It is not without significance that the fee payable on a originating application is considerably greater than that on an ordinary application. These proceedings should have been commenced by originating application.’

Judges:

Evans-Lombe J

Citations:

[1988] 1 BCLC 583

Jurisdiction:

England and Wales

Cited by:

Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 30 April 2022; Ref: scu.216395

In re Primlaks (UK) Ltd: 1989

A prerequisite to making an administration order under section 8(1) is that the court considers making such an order ‘would be likely to achieve’ one of the statutory purposes.
Held: This required the court to be satisfied there is a ‘prospect sufficiently likely in the light of all the other circumstances of the case to justify making the order’.

Judges:

Vinelott J

Citations:

[1989] BCLC 734

Statutes:

Insolvency Act 1986 8(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Regina v Guildhall Magistrates’ Court, ex parte Primlaks Holdings Co. (Panama) Inc 1990
The exercise of a power of search is a draconian power. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 30 April 2022; Ref: scu.216440

Sneade v Wotherton Barytes and Lead Mining Co: 1904

An amendment of a writ or a pleading relates back to the original date of the document amended.

Judges:

Lord Collins MR

Citations:

[1904] 1 KB 295

Jurisdiction:

England and Wales

Cited by:

Cited – Liff v Peasley CA 1980
The court will not add a person as a defendant to an existing action if the claim was already statute-barred and he wished to rely on that defence, and if the court allows such addition ex parte it will not, on objection allow the addition to stand. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.214461

Wimpey (George) Co Ltd v British Overseas Airways Corporation: HL 1954

A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if the arguments are fairly evenly balanced that interpretation should be chosen which involves the least alteration of the existing law.
An employee of BOAC, had been injured in a collision between a vehicle owned by BOAC and another owned by Wimpey. He sued Wimpey, who now claimed a contribution against BOAC. The claimant later joined BOAC, but outside a special one year limitation period under the 1939 Act. The judge had found BOAC one third liable, but that they then escaped liability, the claim against them being time barred. At the Court of Appeal LLJ Denning and Singleton compared the situation with that of co-sureties, and that a six year period applied.
Held: The decision and discussion was limited firmly to the point of statutory construction under section 6(1)(c) of the 1935 Act.
Viscount Simonds: ‘My Lords, at the hearing of the action and of the appeal two questions were raised, upon which there was no argument before your Lordships, the first as to the date upon which Wimpeys’ right to contribution arose and the second as to the period of limitation in respect of a claim for contribution against a public authority under section 21 of the Limitation Act, 1939. I am content to assume that the right to contribution arose at any rate not earlier than the date when the existence and amount of Wimpeys’ liability to Littlewood was ascertained by judgment and that the relevant period of limitation was six years.’ The concept of being ‘held liable’ by a judgment for the purpose of setting time running in a claim for contribution involved the ascertainment of the quantum of the liability.
Lord Porter: ‘The quantum having been determined, the only question is: can the party against whom judgment has been given recover contribution from the other who was in part the cause of the injury?’ and ‘Substantially, their view was that Wimpeys were under no liability until judgment was given against them, that their cause of action arose then and not until then, and accordingly their cause of action against B.O.A.C. arose at that date. I need not, I think, set out the authorities and reasoning upon which these opinions are founded except to refer to such cases as Wolmershausen v. Gullick and Robinson v. Harkin, both of which were claims to contribution between co-sureties, and M’Gillivray v. Hope, which was a claim involving the right of present and former employers to contribution inter se in respect of damages awarded to a workman employed by them consecutively.
If this view be true, Wimpeys’ liability did not come into existence until judgment had been given against them, and therefore they had whatever was the appropriate period of limitation from that date. What that appropriate period may be – whether it is a year because B.O.A.C. is a public authority and the action is brought in respect of any act, neglect or default or whether it is six years, because the claim is not in respect of any act, neglect or default, but for contribution – is immaterial in the present case inasmuch as Wimpeys made their claim to contribution in the original action before judgment was given.’
Lord Keith of Avonholm: ‘My Lords, your Lordships are not now concerned with a question which was considered in the courts below, namely, when the cause of action in the claim for contribution accrued. It is conceded, in conformity with the view taken by the Court of Appeal, that the cause of action accrued at earliest at the date when judgment was given in favour of Littlewood against the appellants.’

Judges:

Lord Reid, Lord Keith of Avonholm, Viscount Simonds, Lord Porter

Citations:

[1955] AC 169, [1954] 3 WLR 932, [1954] 3 All ER 661

Statutes:

Law Reform (Married Women and Tortfeasors) Act 1935, Limitation Act 1939 21

Jurisdiction:

England and Wales

Citing:

Cited – Wolmershausen v Gullick 1893
Claim for contribution between co-securities. Wright J reviewed the development of the entitlement to contribution from Justinian’s statement of it, through its application by the custom of the City of London in the time of Queen Elizabeth to the . .
Appeal from – Littlewood and George Wimpey and Co Ltd v British Overseas Airways Corporation CA 1953
The words ‘liable to pay’ in s 3 carried their usual meaning as ‘responsible in law’. . .

Cited by:

Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Cited – Aer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Cited – Ronex Properties v. John Laing Construction Ltd CA 1983
The court considered a claim for contribution between tortfeasors. Donaldson LJ said: ‘The starting point of this submission is that a cause of action for contribution, under the Law Reform (Married Women and Tortfeasors) Act 1935, arises at the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other, Damages, Limitation

Updated: 30 April 2022; Ref: scu.214211

Prudential Assurance Co Ltd v Fountain Page Ltd: 1991

A party and his legal representatives receiving documents under a process of discovery is under an implied undertaking to use those documents for the purposes of those proceedings only. It is an obligation imposed by operation of law by virtue of the circumstances in which the document or information is obtained.
Hobhouse J said: ‘it is in my judgment a duty that is owed to the court and which can be enforced by the court’ and ‘Breach of the duty amounts to a contempt of court, which may be trivial or serious depending on the circumstances. The court has the power wholly or partially to release the recipient from the duty, or undertaking, and to permit use to be made of the documents nevertheless.’

Judges:

Hobhouse J

Citations:

[1991] 1 WLR 756

Cited by:

Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Gelber v Griffin FD 22-Nov-2006
Complaint was made that a party had disclosed confidential material received through disclosure to a third party.
Held: There was an implied duty of confidence arising in the disclosure process. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.211379

Husband’s of Marchwood Ltd v Drummond Walker Developments Ltd: 1975

The object of Order 24 Rule 16 is not to punish the offender for his conduct, but to secure compliance with the Rules of Court and orders of court relating to discovery, and the fair trial of the action in accordance with the due process of the Court.

Judges:

Stamp LJ

Citations:

[1975] 1 WLR 603, [1975] 2 All ER 30

Cited by:

Cited – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.211360

The Ansonia: 1920

A judge in a shipping case is not bound to accept the advice he receives from the assessors.

Citations:

(1920) 2 Ll L Rep 123

Cited by:

Cited – ‘Bow Spring’, Owners of Ship v ‘Manzanillo Ii’, Owners of Ship CA 28-Jul-2004
There had been a collision at sea.
Held: (Addendum) Where the admiralty court sought advice from assessors, modern good practice required that the advice should be disclosed to the parties advisers and that they have opportunity to comment. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.200452

Vendervell Trustees Ltd v White: HL 1971

If the dispute could be adjudicated in the absence of a party and where no order was sought against that party, joinder was unnecessary and generally not allowed.
Order 15 Rule 13 requires that the presence of the party to be joined is necessary to enable the matters in dispute to be effectually and completely decided, that a plaintiff is entitled to choose the defendants he wishes to sue, but that the court has power to add a party whose proprietary or pecuniary rights are or may be directly affected by the proceedings.

Judges:

Viscount Dilhome

Citations:

[1971] AC 912, [1970] 3 All ER 16, (1970) 46 Tax Cas 341

Statutes:

RSC 15.13

Jurisdiction:

England and Wales

Cited by:

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

Litigation Practice

Updated: 30 April 2022; Ref: scu.200488

Norris v Beazley: 1877

A person could not be added to a claim as defendant where the plaintiff has no claim against him and no wish to join him.

Citations:

(1877) 2 CPD 80

Jurisdiction:

England and Wales

Cited by:

Criticised – Montgomery v Foy, Morgan and Co 1895
The case of Norrois v Beazley was criticised as too narrow an interpretation of the rules. The court decsribed ‘one of the great objects of the Judicature Acts, namely that where there is one subject matter out of which several disputes arise, all . .
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: 30 April 2022; Ref: scu.200491

The Jay Bola: 1992

A writ was issued against defendants ‘O’ who had been owners of the Jay Bola, just prior to the expiry of the one year time bar under the Hague Rules. The judge laid emphasis on the fact that Article 6 III r.6 discharged from all liability unless suit was brought within a year. ‘O’ had in fact sold the ship to ‘AS’, and after the expiry of the time bar, the plaintiffs sought leave to correct the name under Ord.20 r.5(3).
Held: Ord.20 r.5 had been in similar terms since 1964, and there were decisions showing that amendments granted under the rule did relate back, but those cases were concerned with ‘procedural time bars’ under the Limitation Acts. Since the passing of the Limitation Act 1980, in particular by section 35, some power to relate back was derived from that section, but only in relation to time limits imposed by the Limitation Acts. The only relation back in respect of an amendment of proceedings to add another party after the limitation proceedings, that was available was that allowed by the rules made to give effect to section 35 of the 1980 Act.

Judges:

Hobhouse J

Citations:

[1992] 1 QB 907

Statutes:

Limitation Act 1980 30

Cited by:

Cited – Parsons and Another v George and Another CA 13-Jul-2004
The claimant sought to begin proceedings to renew his business tenancy, but the proceedings were issued in the wrong name. He sought to amend the proceedings to substitute the correct defendant, but that application was out of time.
Held: . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 30 April 2022; Ref: scu.200227

Mitchell v Harris Engineering Co Ltd: CA 1967

The plaintiff was seeking to claim against his employers for personal injuries. There was correspondence with them before action that did not lead to a settlement. When the writ was issued a junior clerk made a mistake and issued it in the very similar name of an associated company of the employers. The defendant challenged the change in the court rules which gave greater freedom to allow the court to add a defendant after the expiry of the limitation period, saying that the alteration was ultra vires the powers of the Rules Committee.
Held: The claim failed. The word ‘mistake’ should not be limited to mistakes without fault. As a matter of construction, the rule permitted an amendment in the circumstances therein specified and that the amendment related back to the date of the issue of the proceedings: ‘It was a very proper case for amendment. It was a genuine mistake by the plaintiffs solicitors; and the secretary of the two companies must have realised it as soon as he read the writ and the indorsement’.
James J (at first instance) gave permission to allow the amendment: ‘In my judgment, there was a genuine mistake on the part of the junior clerk who issued the writ. Was the mistake one which was misleading or caused any reasonable doubt as to the person intended to be sued? The test is what would a reasonable person receiving this writ, accompanied as it was by the statement of claim, understand from it in regard to the person intended to be sued? The name was not the correct name of the person intended to be sued and there was a misnomer; that misnomer in fact accurately named an existing but different person. In my judgment, a reasonable person would say of this writ: ‘Although on the face of it there is a clear statement that the plaintiff is suing an existing person there is no doubt at all that he intends to sue a different person who has a slightly different name.’ I do not consider that the mistake made was misleading, nor do I consider that it created any doubt as to the person whom the plaintiff intended to sue.’

Judges:

Russell LJ, Denning LJ

Citations:

[1967] 2 QB 703

Jurisdiction:

England and Wales

Cited by:

Overruled – Ketteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .
Cited – Parsons and Another v George and Another CA 13-Jul-2004
The claimant sought to begin proceedings to renew his business tenancy, but the proceedings were issued in the wrong name. He sought to amend the proceedings to substitute the correct defendant, but that application was out of time.
Held: . .
Cited – Signet Group Plc v Hammerson UK Properties Plc CA 9-Dec-1997
An application was made for a new tenancy within the four month period prescribed by section 29(3) of the LTA. The applicants named in error in the application were ‘Signet Group plc’ and not ‘Ernest Jones Ltd’. Hammerson had not been misled and was . .
Cited – Payabi and Another v Armstel Shipping Corporation and Another QBD 1-Apr-1992
A party had been wrongly added in breach of limitation under Hague Convention. There should have been no relation back. Hobhouse J considered the effect of the 1980 Act: ‘But it is clear that Ord. 20, r. 5 must now be read with the [1980] Act and is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.200226

Ex parte Firth , In re Cowburn: 1882

The court considered the practice where a point of law was raised first only on appeal: ‘the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence.’

Judges:

Sir George Jessel MR

Citations:

(1882) 19 ChD 419

Cited by:

Cited – Pittalis v Grant CA 1989
A point was raised for the first time on appeal.
Held: Though an appellate court could exclude a pure question of law which had not been raised at first instance from being raised on appeal, the usual practice was to allow it to be taken where . .
Cited – Mehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.200245

Martin French v Kingswood Hill: 1961

A payment into court is subject to the terms of the relevant rules: ‘a payment into court is simply an offer to dispose of the claim on terms. If the defendant were free to formulate the terms himself, he could make his offer in whatever form he liked. But if he seeks to effect his compromise under the rules which permit a payment into court, he must make his offer according to the rules.’

Judges:

Devlin

Citations:

[1961] QB 96

Cited by:

Cited – 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: 30 April 2022; Ref: scu.199954

Re X (A Minor)(Wardship Injunction): 1984

An order was made preventing the identification of Mary Bell. She had been convicted of murder as a child, after leaving prison and taking a new identity, she had a child, and the order was made to protect the child until she was 18.

Judges:

Balcombe J

Citations:

[1984] 1 WLR 1422

Jurisdiction:

England and Wales

Cited by:

Cited – X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd QBD 21-May-2003
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.199554

Re de Burgho’s Estate: 1896

The court considered the necessary elements of issue estoppel: ‘According to the clear principles of the law of estoppel, it is necessary, in order to estop the objector, to show that he derives title under Dwyer by act or operation of law subsequent to the recovery of the judgment. If this is shown it is reasonable that he should be estopped, because his estate was represented at the time of the recovery of the judgment though not in his person.’

Judges:

Madden J

Citations:

[1896] IR 274

Cited by:

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

Litigation Practice, Estoppel

Updated: 30 April 2022; Ref: scu.198730

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, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result and not be allowed to re-open the case. That principle is founded on justice and common sense, and is acted upon in courts of equity, where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re-opened.’

Judges:

Lord Penzance

Citations:

(1871) LR 2 P and M 327

Jurisdiction:

England and Wales

Cited by:

Applied – 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, . .
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 – 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 – 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: 30 April 2022; Ref: scu.198735

Doe v The Earl of Derby: 1834

For a plea of res judicata to arise as between claimants to the title to goods, the same title must have come into question in both actions, because there must be an identity of interest between the party to the first action and the party to the second. A person deriving whatever interest is claimed from the litigant in the earlier proceedings will be bound by a judgment in the earlier proceedings if the interest which he claims was one which he obtained subsequent to the judgment: ‘A passage has been cited from Com. Dig. Evidence, A5, where it is said that ‘a verdict in another action in the same cause may be allowed in evidence between the same parties. So, it shall be evidence, where the verdict was for one under whom any of the present parties claim.’ But that must mean a claim acquired through such party subsequently to the verdict: if, as it has now been argued, the rule could be extended to parties claiming other lands under the same title previously to the verdict, the effect of such a verdict might be carried back for a hundred years. None of the cases support such a proposition.’

Judges:

Littledale J

Citations:

(1834) 1 Ad and El 783

Cited by:

Approved – Hodson v Walker CEC 1872
Premises known as the Red Lion Inn, Grasmere and certain outbuildings were let. In February 1852, Walker allowed one Usher, who owned the Red Lion Inn, to build a shed on his (Walker’s) adjoining land in return for a rent of 1s. a year. In November . .
Cited – Wiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.198725

Mercantile Investment and General Trust Company v River Plate Trust, Loan and Agency Company: 1894

Romer J said: ‘A prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after purchase.’

Judges:

Romer J

Citations:

[1894] 1 Ch 578

Cited by:

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

Litigation Practice

Updated: 30 April 2022; Ref: scu.198733

The Giovanna: 1999

Non-disclosure by applicant for interim relief

Judges:

Rix J

Citations:

[1999] 1 LLR 867

Cited by:

Cited – Tryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.197880

Independent Automatic Sales Ltd v Knowles and Foster: 1962

If a pleading alleges all the facts which would, as a matter of law, give rise to constructive notice on the part of the other party of the matters alleged that should be enough to enable the party to argue the legal consequences of the facts alleged or proved.

Citations:

[1962] 1 WLR 974

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc v Boulter and Another HL 26-Oct-1999
The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.197748

Lord Advocate v Walker Trustees: HL 1912

The 1707 Act preserved the traditional offices in Scotland. The respondent held the position of Usher of the White Rod, and claimed his fees from those granted honours by the English parliament.
Held: The Act was clear. The fact that had been paid for post Union titles for over 150 years was not admissible to explain the meaning of the article. Long established usage cannot prevail against clear words of a staute.

Judges:

Lord Atkinson

Citations:

[1912] AC 95, 106 LT 194, 28 TLR 101

Statutes:

Treaty of Union 1707

Jurisdiction:

Scotland

Citing:

Cited – Hebbert v Purchas 1871
Lord Hatherley said: ‘It is quite true that neither contrary practice nor disuse can repeal the positive enactment of a statute, but contemporaneous and continuous usage is of the greatest efficacy in law in determining the true construction of . .
Cited – The Trustees of Clyde Navigation v Laird and Sons HL 1883
The court was asked whether the Clyde Navigation Consolidation Act 1858 required dues to be paid on logs which were chained together and floated down the River Clyde. The evidence was that these dues had been levied and paid without protest for a . .

Cited by:

Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.196754

Campbell College, Belfast v Commissioner of Valuation for Northern Ireland: HL 1964

The rule of contemporary exposition should be applied only in relation to very old statutes.

Judges:

Lord Upjohn

Citations:

[1964] 1 WLR 912, [1964] 2 All ER 705

Jurisdiction:

Northern Ireland

Cited by:

Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.196753

The Trustees of Clyde Navigation v Laird and Sons: HL 1883

The court was asked whether the Clyde Navigation Consolidation Act 1858 required dues to be paid on logs which were chained together and floated down the River Clyde. The evidence was that these dues had been levied and paid without protest for a quarter of a century.
Held: Lord Watson said: ‘When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions throughout a long course of years by the unanimous consent of all parties interested as evidencing what must presumably have been the intention of the Legislature at that remote period.’ Lord Blackburn commented that this raised a strong prima facie ground for thinking that there must exist some legal ground for exacting the dues.

Judges:

Lord Watson

Citations:

(1883) 8 App Cas 658

Statutes:

Clyde Navigation Consolidation Act 1858

Jurisdiction:

Scotland

Cited by:

Cited – Lord Advocate v Walker Trustees HL 1912
The 1707 Act preserved the traditional offices in Scotland. The respondent held the position of Usher of the White Rod, and claimed his fees from those granted honours by the English parliament.
Held: The Act was clear. The fact that had been . .
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.196752

Hebbert v Purchas: 1871

Lord Hatherley said: ‘It is quite true that neither contrary practice nor disuse can repeal the positive enactment of a statute, but contemporaneous and continuous usage is of the greatest efficacy in law in determining the true construction of obscurely framed documents.’

Judges:

Lord Hatherley

Citations:

(1871) LR 3 PC 605

Jurisdiction:

England and Wales

Cited by:

Cited – Lord Advocate v Walker Trustees HL 1912
The 1707 Act preserved the traditional offices in Scotland. The respondent held the position of Usher of the White Rod, and claimed his fees from those granted honours by the English parliament.
Held: The Act was clear. The fact that had been . .
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.196751

Richardson v Redpath Brown and Co Ltd: HL 1944

Viscount Simon LC discussed the role and status of medical assessors, saying: ‘But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness’s view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field.’
. . And ‘The material question, as this House recently pointed out in Steele v. Robert George and Co. (1937) Ltd. is not whether the medical advice given to the workman against an operation is more soundly based than advice in favour of it, but whether the workman who refuses to be operated upon is acting reasonably in view of the advice he has received.’

Judges:

Viscount Simon LC

Citations:

[1944] AC 62, [1944] 1 All ER 110, 36 BWCC 259

Jurisdiction:

England and Wales

Citing:

Cited – Steele v Robert George and Co Ltd HL 1942
Where it is claimed on behalf of a defendant that a claimant has failed to mitigate his damages by refusing recommended surgery, the onus rests upon the defendant to show that the claimant’s refusal has been unreasonable in the circumstances. The . .

Cited by:

Cited – Skandia Property (UK) Limited Vala Properties Bv v Thames Water Utilities Limited CA 27-Jul-1999
The defendants were liable after a flood invaded and damaged the plaintiff’s premises. Having been advised professionally that the waterproofing system in the property would need replacing, the plaintiffs so replaced it but, it turned out, . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Updated: 29 April 2022; Ref: scu.196011

East End Dwelling Co Ltd v Finsbury Borough Council: HL 1952

The house was asked whether a hypothetically rebuilt block of flats would have been subject to the Rent Restriction Acts.
Held: Lord Asquith said: ‘If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.’

Judges:

Lord Asquith of Bishopstone

Citations:

[1952] AC 109

Jurisdiction:

England and Wales

Cited by:

Cited – Rose v Lynx Express Ltd. and Bridgepoint Capital (Nominees) Ltd CA 7-Apr-2004
In an request for pre-action discovery it was plainly wrong for the court to seek to decide in advance any element of the virtues of the case.
Held: The appeal should be allowed. The case was arguable and should be allowed to proceed.
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.196552

British American Trustee and Finance Corporation v Couper: HL 1894

The court considered how an unfettered discretion vested in a court should be exercised.

Citations:

[1894] AC 399

Jurisdiction:

England and Wales

Cited by:

Cited – Winpar Holdings Ltd v Ransomes Plc CA 1-Jul-1999
The company had been given permission to cancel a share premium account. Changes in circumstances brought the matter back for reconsideration. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.195955

Ross v Associated Portland Cement Manufacturers Ltd: HL 1964

Where one party brings no evidence to challenge that of the other, that other is entitled to the most favourable interpretation of his evidence. Where a party has led no evidence upon a particular matter, the most favourable inferences may properly be drawn from evidence on that matter led by the other party. Lord Reid said: ‘Before I deal further with the facts I must note that both the respondents and Lloyd Lawrence, who appeared as defendants at the trial, elected to lead no evidence and to rely on the contention that the appellant’s evidence was insufficient to prove her case. They were quite entitled to do that but they cannot complain if in those circumstances the most favourable inferences are drawn from the appellant’s evidence of which it is reasonably capable’.

Judges:

Lord Reid

Citations:

[1964] 1 WLR 768, [1964] 2 All ER 452

Jurisdiction:

England and Wales

Cited by:

Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.195462

Galloway v Galloway: HL 1956

The court considered the interpretation of a provision in a statute continued from an earlier statute.
Viscount Radcliffe said: ‘I must confess that I do not lend a sympathetic ear to this last and almost mystical method of discovering the law, least of all when it depends upon a consolidating Act the function of which is to repeat, but not to amend, existing statute law.’
Under the common law, reference in a statute to ‘child’ or ‘children’ would prima facie mean a legitimate child or legitimate children.

Judges:

Viscount Radcliffe, Lord Tucker, Lord Oaksey

Citations:

[1956] AC 299, [1955] 3 All ER 429

Jurisdiction:

England and Wales

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Updated: 29 April 2022; Ref: scu.194792

EWP Ltd v Moore: CA 1992

The construction favoured, despite the anomaly it produced, by all three members of the court was one which had been the subject of a longstanding decision at first instance and that ‘despite abundant opportunities Parliament has not acted to cure the anomaly, which cannot have escaped the attention of departmental lawyers and administrators’ and ‘The inference must be either that this apparent anomaly is not regarded as such or that it is regarded as a desirable or tolerable anomaly’. The anomaly was to be tolerated.

Judges:

Bingham LJ

Citations:

[1992] 1 QB 460

Jurisdiction:

England and Wales

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.194790

Shirayama Shokusan Co Ltd and others v Danovo Ltd: ChD 26 Feb 2004

The court had ordered the parties to conduct a mediation to resolve their dispute. The defendant applied to court that the mediation should be stayed until a named director of the claimant represented the other party.
Held: That director was not himself a named party, and the court had no jurisdiction to make such an order against him.

Judges:

Blackburne J

Citations:

Times 22-Mar-2004, Gazette 01-Apr-2004

Jurisdiction:

England and Wales

Litigation Practice

Updated: 29 April 2022; Ref: scu.194824

Regina v Wandsworth County Court ex parte Wandsworth London Borough Council: 1975

Where the court grants a writ of possession requiring the bailiff to put the claimant into possession of land, in principle, the bailiff will remove all those who are on the relevant land, irrespective of whether or not they were parties to the action.

Citations:

[1975] 1 WLR 1314

Jurisdiction:

England and Wales

Cited by:

Cited – Drury v Secretary of State for Environment, Food and Rural Affairs CA 26-Feb-2004
Trespassers occupied part of the land owned by the claimant. They now appealed agaainst an injunction preventing them unlawfully occupying any part of the claimant’s land including areas not previously occupied.
Held: It was critical to . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.194590

University of Essex v Djemal and others: CA 1980

Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just prior to the hearing before the judge the students vacated Level Six but left behind a note threatening ‘further direct action’ against the university unless their demands were met. The university proceeded with its application but the judge refused to make an order for possession other than in relation to Level Six. The words of Order 113, R.S.C. 1965, restricted the court’s jurisdiction to making an order for possession of such part of the premises as was being or had been wrongly occupied. The university’s appeal was allowed and an order was substituted for possession.
Buckley LJ said: ‘I think the Order is in fact an Order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession. In my judgment the jurisdiction to make a possession order extends to the whole of the owner’s property in respect of which his right of occupation has been interfered with, but the extent of the field of operation of any order for possession which the court may think fit to make will no doubt depend upon the circumstances of the particular case. In the present case there was, when the matter was before the judge, a threat to take what is described as ‘further direct action’, which presumably meant similar action to the action which had already been taken, action which might be taken in respect of any part of the university property. In those circumstances it would, in my judgment, have been open to the judge to have made an order extending to the whole of the university property, or he might have made an order extending to particular parts, such as the administrative offices, of the university property. In my judgment he was in error in thinking that he was bound, by the terms of R.S.C., Ord. 113, to restrict his order to that particular part of the university property of which the students were then in actual adverse possession.’

Judges:

Buckley LJ

Citations:

[1980] 1 WLR 1301

Statutes:

Rules of the Supreme Court Orde 113

Jurisdiction:

England and Wales

Cited by:

Cited – Drury v Secretary of State for Environment, Food and Rural Affairs CA 26-Feb-2004
Trespassers occupied part of the land owned by the claimant. They now appealed agaainst an injunction preventing them unlawfully occupying any part of the claimant’s land including areas not previously occupied.
Held: It was critical to . .
Cited – Ministry of Agriculture, Fisheries and Food v Heyman and others 1989
The respondent travellers were in wrongful occupation of an area of woodland owned by the appellant. The appellant sought an order for possession not only to that land but also for an area of woodland in its ownership two or three miles away. The . .
Cited – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land

Updated: 29 April 2022; Ref: scu.194587

Ministry of Agriculture, Fisheries and Food v Heyman and others: 1989

The respondent travellers were in wrongful occupation of an area of woodland owned by the appellant. The appellant sought an order for possession not only to that land but also for an area of woodland in its ownership two or three miles away. The appellant argued that there was a danger that, upon eviction, the respondents would decamp to the other part. The appellant successfully appealed against the refusal of the district judge to include the second area in the order for possession.
Held: the propinquity between the two areas of woodland and the fact that each was ideal for use by the respondents, being close to a public road and providing easy access for large vehicles, represented convincing evidence of real danger of their decampment. ‘Given that the court’s powers are not limited to the particular area adversely occupied, the question remains as to what is required to justify an order for possession extending to other areas as well. To my mind neither the fact that the land is rural rather than urban, nor the fact that there are parcels of land which are geographically separated from each other, necessarily determines the matter one way or the other. In my judgment what is needed (apart of course from the other requirements of Order 113) is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted.’

Judges:

Saville J

Citations:

[1989] 59 P and CR 48, (1990) 59 P and CR 48

Jurisdiction:

England and Wales

Citing:

Cited – University of Essex v Djemal and others CA 1980
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just . .

Cited by:

Cited – Drury v Secretary of State for Environment, Food and Rural Affairs CA 26-Feb-2004
Trespassers occupied part of the land owned by the claimant. They now appealed agaainst an injunction preventing them unlawfully occupying any part of the claimant’s land including areas not previously occupied.
Held: It was critical to . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.194589

Morris v Redland Bricks Ltd: HL 1969

The requirement of proof is greater for a party seeking a quia timet injunction than otherwise. Lord Upjohn said: ‘A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave danger will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say ‘timeo’. [A-G for Canada v Ritchie Contracting]. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.’ and ‘[T]he court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.’

Judges:

Lord Upjohn

Citations:

[1970] AC 652, [1969] 2 WLR 1437, [1969] 2 All ER 576

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General for the Dominion of Canada v Ritchie Contracting and Supply Co Ltd HL 1919
If there has been no intrusion upon the land of the plaintiff at all then the only remedy may be a quia timet prohibitory injunction: ‘But no-one can obtain a quia timet order by merely saying ‘Timeo’; he must aver and prove that what is going on is . .

Cited by:

Cited – Drury v Secretary of State for Environment, Food and Rural Affairs CA 26-Feb-2004
Trespassers occupied part of the land owned by the claimant. They now appealed agaainst an injunction preventing them unlawfully occupying any part of the claimant’s land including areas not previously occupied.
Held: It was critical to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.194594

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 legitimate interest of the plaintiffs.
Held: It is an abuse of process to use litigation with the ulterior purpose of oppressing or harassing one’s opponents. An action for the tort of abuse would lie where it could be shown that proceedings had been instituted in order to effect an object or purpose not within the scope of the process that had been instituted. The court approved a statement from American torts law ‘One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.’

Judges:

Fox LJ

Citations:

[1985] 1 WLR 1327, [1986] 1 All ER 91

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .

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 – 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 – Balkanbank v Naser Taher and Others QBD 13-Feb-1995
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered . .
Cited – 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 – 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 . .
Cited – Stobart Group Ltd and Others v Elliott QBD 11-Apr-2013
The defendant applied to the court for various officers of the cliamant companies to be subject to contempt proceedings. The claimants asked the court to strike of the defendant’s counterclaim and to make a civil restraint order against him. There . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 29 April 2022; Ref: scu.190157

Barkway v South Wales Transport: HL 1950

The doctrine of res ipsa loquitur should not be used where the judge has presented to him alternate versions of the facts and his job is to decide between them.
Lord Radcliffe said that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence.
Lord Normand said: ‘the fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient finding of liability against him.’
As to the doctrine of res ipsa loquitur: ‘The maxim is no more than a rule of evidence affecting onus. It is based on commonsense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.’

Judges:

Lord Porter, Lord Radcliffe, Lord Normand

Citations:

[1950] AC 185, [1950] 1 All ER 392, [1950] WN 95

Jurisdiction:

England and Wales

Citing:

Appeal from – Barkway v South Wales Transport CA 1949
A bus had left the road and crashed as a result of a tyre burst. In stating how the defendant could discharge the onus of proof the Lord Justice said: ‘To displace the presumption [of negligence] the defendants must . . prove (or it must emerge from . .

Cited by:

Cited – Smith and Another v Harris PC 30-Oct-2006
(Cayman Islands) The respondent appealed a finding of negligence. She drove a car along a road colliding with three pedestrians, the claimants. The pedestrians said they had been walking in single file in a lay-by off the main carriageway. The . .
Cited – Smith v Fordyce and Another CA 10-Apr-2013
The claimant appealed against rejection of his claim for personal injuries from a road accident. The respondent driver had crashed into a wall. The claimant had been his front seat passenger. The judge had found the respndent not to be at fault, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 29 April 2022; Ref: scu.188791

In re Westinghouse Uranium Contract: HL 1978

‘The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested’ Lord Fraser said: ‘in judging the nature of the letters rogatory as a whole in the court must look at them in the unamended form in which they were received by the American Court’ A ‘fishing expedition’ is clearly impermissible in an application of request under the Act. The court supported the distinction between ‘a process by way of discovery and testimony for that purpose’ and ‘testimony for the trial itself’: ‘which it is in fact is not to be determined by the drafting of Westinghouse’s lawyers but objectively by the nature of the testimony sought. The fact that any evidence obtained is intended to be put in at the trial is quite consistent with the inquiry extending (impermissibly) to trains of inquiry which might produce such evidence.’

Judges:

Lord Wilberforce, Lord Fraser

Citations:

[1978] AC 547, [1978] 1 All ER 434

Statutes:

Evidence (Proceedings In Other Jurisdictions) Act 1975

Jurisdiction:

England and Wales

Citing:

Approved – Radio Corporation of America v Ranland Corporation 1956
The 1856 Act cannot be used to allow a fishing expedition for evidence. The court distinguished between ‘a process by way of discovery and testimony for that purpose’ and ‘testimony for the trial itself’. . .
Appeal from – Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2) HL 1977
The court considered a claim that a party was not compelled to give evidence where it might incriminate him: ‘No one is bound to furnish information against himself. It [the common law] says: ‘If a witness claims the protection of the court, on the . .

Cited by:

Cited – Regina v Secretary of State for Home Department ex parte Finninvest SPA Admn 25-Oct-1996
The appellant sought leave to appeal to the House of Lords. They certified three questions, as to whether the word ‘evidence’ in the 1990 Act has the same or a wider meaning than in the 1975 Act, whether making an illicit contribution to a political . .
Cited – In re State of Norway’s Application (No 1) CA 1987
There were taxation proceedings in Norway. One question was whether the Norwegian taxpayer controlled a trust which owned some shares. Letters rogatory issued by the Norwegian Court requested the oral examination of two witnesses in the United . .
Cited – First American Corporation and others v Sheik Zayed Bin Sultan Al-Nahyan and Others CA 12-May-1998
Letters of Request had been received for the production of document to be used in litigation in the US. It was complained that they were drafted so widely as to amount to a fishing expedition.
Held: ‘an English court must look at the issue of . .
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 . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.188700

Pasmore v Oswaldtwistle Urban District Council: HL 1898

Where an Act creates an obligation, and enforces the performance in a specified manner, it is a general rule that performance cannot be enforced in any other manner.
Earl of Halsbury LC said: ‘The principle that where a specific remedy is given by a Statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the Statute, is one which is very familiar and which runs through the law. I think Lord Tenterden accurately states that principle in the case of Doe v. Bridges . .’

Judges:

Earl of Halsbury LC

Citations:

[1898] AC 387

Statutes:

Public Health Act 1875

Jurisdiction:

England and Wales

Citing:

Confirmed – Robinson v Workington Corporation CA 1897
Mr Robinson’s houses were damaged by water overflowing from the council’s public sewers. The sewers were adequate until new houses were built. He claimed damages in respect of the council’s failure to build a new sewer of sufficient dimensions to . .
Approved – Doe d. Bishop of Rochester v Bridges 1831
Where a new obligation is created by statute which at the same time provides a special means of enforcing it, that performance cannot be enforced in any other manner.
Lord Tenterden said: ‘where an Act creates an obligation and enforces the . .

Cited by:

Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Litigation Practice, Health

Updated: 29 April 2022; Ref: scu.188629

In re Norway’s Applications: HL 1990

The house considered appeals from the two earlier applications, upholding the first and reversing the second.

Judges:

Lord Goff

Citations:

[1990] AC 723

Statutes:

Evidence (Proceedings in Other Jurisdictions) Act 1975

Jurisdiction:

England and Wales

Citing:

Appeal from – Re State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .
Appeal from – In re State of Norway’s Application (No 1) CA 1987
There were taxation proceedings in Norway. One question was whether the Norwegian taxpayer controlled a trust which owned some shares. Letters rogatory issued by the Norwegian Court requested the oral examination of two witnesses in the United . .

Cited by:

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

Litigation Practice

Updated: 29 April 2022; Ref: scu.188698

In re Asbestos Insurance Coverage: HL 1985

A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to make orders for the production of documents for use as evidence in proceedings abroad pursuant to a request from a foreign court.
Held: The brokers appeal was allowed. The question as to what evidence would and what evidence would not be relevant to an issue in the foreign action is primarily a matter for the foreign court: ‘It would be quite inappropriate, even if it were possible for this House or any English court to determine in advance the matters relevant to the issues before the Californian courts on which each of these witnesses is in a position to give evidence’.
A witness however can simply reply that he does no know if that is the answer to the question. The jurisdiction ‘ is to be construed so as not to permit mere ‘fishing’ expeditions’ and the court would not sanction an order which required production of documents which ‘may or may not exist.’

Judges:

Lord Fraser of Tullybelton

Citations:

[1985] AC 331, [1985] 1 WLR 331, [1985] 1 All ER 716

Statutes:

Evidence (Proceedings in Other Jurisdictions) Act 1975 82

Jurisdiction:

England and Wales

Cited by:

Cited – First American Corporation and others v Sheik Zayed Bin Sultan Al-Nahyan and Others CA 12-May-1998
Letters of Request had been received for the production of document to be used in litigation in the US. It was complained that they were drafted so widely as to amount to a fishing expedition.
Held: ‘an English court must look at the issue of . .
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 . .
Cited – Tajik Aluminium Plant (Tadaz) v Hydro Aluminium As and others CA 24-Oct-2005
Application for leave to appeal against refusal to grant witness orders to attend arbitration. The respondent had argued that the request was too vague and broad.
Held: Moore-Bick LJ said: ‘In order to answer the question raised in this case I . .
Cited – Financial Services Authority (FSA) and Others v AMRO International Sa and Another CA 24-Feb-2010
The FSA appealed against an order refusing its request for inquiries and production of accounting records by the defendant accountants to satisfy a request issued by the US Securities and Exchange Commission.
Held: The FSA had properly . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.188699

Rowland v Bock: 2002

Mr Norgren claimed andpound;250,000 due under an agreement with Mr Brock. Mr Norgren had earlier introduced Mr Bock to Mr (Tiny) Rowland, and this dispute formed part of a much larger one. When Mr Norgren’s case came on for trial, he was arrested on an extradition warrant and held in custody until Mr Rowland stood surety for him and he obtained bail. He alleged that Mr Bock had instigated his arrest but was unable to prove that to the necessary standard in contempt proceedings which he later brought against Mr Bock. His action was relisted in February 2002. Because of his 1997 experience, he applied for a VCF order. The master refused it but Newman J granted it on appeal and, having shortly afterwards heard the action, found for Mr Norgren on his claim. The court considered whether a party could be allowed to give evidence by video from outside the jurisdiction.
Held: ‘In my judgment full access to the court for justice in a civil matter should not, save in exceptional circumstances, be at a price of the litigant losing his liberty and facing criminal proceedings.’ The court referred to an advantage given to witnesses giving evidence by video link of having a short time lag to consider an answer.

Judges:

Newman J

Citations:

[2002] 4 All ER 370

Statutes:

Civil Procedure Rules 33.2

Cited by:

Cited – Polanski v Conde Nast Publications Limited CA 11-Nov-2003
The claimant sought damages for defamation. He feared arrest and extradition to the US if he came to England, and was granted an order allowing him to give evidence by video link. The defendant appealed that order.
Held: There was no absolute . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.188242

Kitcat v Sharp: 1882

The plaintiff clergyman had begun his action for rescission of a contract with the defendant for misrepresentattion. The defendant sent him a ‘private and confidential’ letter threatening publication of the pleadings with comments depreciating the plaintiff. The plaintiff had previously refused to enter into further direct communication with the defendant.
Held: The defendant could not, by a marking of the letter, impose on the plaintiff any condition as to its use. The letter was admissible, containing ‘a threat if an offer is not accepted’.
A superior court which has power to punish contempts, and power to issue injunctions, may also grant an injunction to restrain a threatened contempt In granting such an injunction, Fry J said: ‘There are three different sorts of contempt. One is scandalizing the Court itself. There may be likewise contempt of Court in abusing parties who are concerned in causes here. There may be also a contempt of this Court in prejudicing mankind against persons before the cause is heard. ‘ and
‘It appears to me I have plainly jurisdiction to prevent the threatened conduct. Only observe what would be the effect if I had not the jurisdiction. It would be that the Court, seeing that a fair trial is likely to be interfered with by a contempt of Court, would be powerless to prevent such contempt, and powerless to prevent the fair trial from being interfered with.’

Judges:

Fry J

Citations:

(1882) 48 LT 64, (1882) 52 LJ CH 134, [1882] 31 WR 227

Jurisdiction:

England and Wales

Cited by:

Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Hubbard v Woodfield 1913
. .
Cited – Re William Thomas Shipping Co, Dillon (HW) and Sons Ltd v The Company, Re Thomas (Sir Robert) 1930
. .
Cited – Alterskye v Scott 1948
The obligation of confidentiality for documents disclosed during litigation discovery includes a duty being: ‘the implied undertaking, under which a party obtaining discovery is, not to use documents for any collateral or ulterior purpose.’ . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence, Contempt of Court

Updated: 29 April 2022; Ref: scu.188465

Hackney v Driscoll (No 1): CA 2003

It was not clear whether an order made by a circuit judge was made by a judge of the county court at first instance, or by a circuit judge in an appeal court. The route for an appeal was therefore unclear.

Citations:

[2003] EWCA Civ 614

Jurisdiction:

England and Wales

Cited by:

Cited – Southern and District Finance Plc v Turner CA 7-Nov-2003
The defendant sought to assert that the agreement under which possession of her house was sought was an extortionate credit bargain. She had to obtain leave to appeal out of time.
Held: The rules required an application to be supported by . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.187651

Peachey Property Corporation Limited v Robinson: 1967

The High Court and County Court rules differ in their ability to give a default judgment for possession of a residential property as against a tenant.

Citations:

[1967] 2 QB 543

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

Litigation Practice, Housing

Updated: 29 April 2022; Ref: scu.187053

Powell v Streatham Manor Nursing Home: HL 1935

Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be: and the appellate tribunal will generally defer to the conclusion which the Trial Judge has formed. However, the probabilities and possibilities of a case may impel an appellate court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box.
Different meanings can be given to the word ‘rehearing’ even when used in connection with an appeal from one court to another.
Lord Wright said: ‘I think that it is difficult, if not impossible, to seek to lay down any precise rule to solve the problem which faces the Court of Appeal when it has to act as a judge of fact on the rehearing, but finds itself ‘in a permanent position of disadvantage as against the trial judge’. In truth, it is not desirable, in my opinion, to do more than state, as I think Lord Sumner was stating, principles which will guide the appellate Court in the majority of such cases. The problem in truth only arises in cases where the judge has found crucial facts on his impression of the witnesses: many, perhaps most cases, turn on inferences from facts which are not in doubt, or on documents: in all such cases the appellate Court is in as good a position to decide as the trial judge. But where the evidence is conflicting and the issue is one of fact depending on evidence, any judge who has had experience of trying cases with witnesses cannot fail to realize the truth of what Lord Sumner says: as the evidence proceeds through examination, cross-examination and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse. He will not necessarily distrust a witness simply because he finds him inaccurate in some details: he can give such inaccuracy its proper place, particularly if he sees that the witness is tired, or antagonized, or confused, or perhaps impatient, and especially if the matter of the inaccuracy is of minor or collateral importance. But such inaccuracies may appear in a very different light when pointed to as isolated passages in the shorthand notes and abstracted from the human atmosphere of the trial and from the totality of the evidence. The judge will form his impression from the whole personality of the witness: he can allow for the nervous witness, standing up in a crowded Court or worried by the strain of cross-examination. The judge may be deceived by an adroit and plausible knave or by apparent innocence: for no man is infallible; but in the main a careful and conscientious judge with his experience of courts is as likely to be correct in his impressions as any tribunal, unless perhaps, as some would say, a jury of twelve members is preferable.’

Judges:

Lord Macmillan, Viscount Sankey LC, Lord Atkin, Lord Wright

Citations:

[1935] AC 243, [1935] All ER 38, (1935) 152 LT 563, (1935) 104 LJKB 304

Jurisdiction:

England and Wales

Citing:

Approved – Clarke v Edinburgh and District Tramways Co HL 1919
The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes . .
Approved – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .

Cited by:

Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – Hussain v Hussain and Another CA 23-Oct-2012
The claimant appealed against rejection of his claim for damages after a car accident. The defendants argued that the claim was fraudulent. The defendant driver had been involved in other collisions found to be fraudulent. The claimant appealed . .
Cited – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.187271

Allied Arab Bank Ltd v Hajjar: 1988

A court refuse a writ ne exeat regno where he purpose was not directly to pursue the main court action, but rather to support an injunction. Instead the court ordered the defendant to surrender his passport which left him at large within the UK, but unable to leave it.

Citations:

[1988] QB 787

Statutes:

Debtors Act 1869

Jurisdiction:

England and Wales

Cited by:

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

Litigation Practice

Updated: 29 April 2022; Ref: scu.186532

Kirkup v British Rail Engineering Ltd: CA 1983

Where interrogatories are administered they should be drafted with considerable rigour because if they are so widely drawn as to be vague they may be regarded as oppressive.

Citations:

[1983] 1 WLR 1165, [1983] 3 All ER 147

Jurisdiction:

England and Wales

Cited by:

Cited – Branson v Snowden; Branson v Gtech UK Corporation (a Body Corporate) and Rendine CA 3-Jul-1997
The respective parties had been preparing competing bids for the National Lottery. One (Branson) alleged that the other had offerered a bribe. The other responded that the allegation was a lie, and each sued the other for defamation.
Held: The . .
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 29 April 2022; Ref: scu.185964

Wallace Smith Trust v Deloitte Haskins and Sells: CA 1997

If the party seeking discovery showed that the documents might be necessary for a fair disposal of the action, an order should normally only be refused after the court had examined the documents and considered them in the light of the material already in the applicant’s possession.
Simon Brown LJ said: ‘Disclosure will be necessary if: (a) it will give ‘litigious advantage’ to the party seeking inspection . . and (b) the information sought is not otherwise available to that party by, for example, admissions or some other form of proceeding (e.g. interrogatories) or from some other source . . and (c) such order for disclosure would not be oppressive.’

Judges:

Simon Brown LJ

Citations:

[1997] 1 WLR 257

Jurisdiction:

England and Wales

Cited by:

Cited – Branson v Snowden; Branson v Gtech UK Corporation (a Body Corporate) and Rendine CA 3-Jul-1997
The respective parties had been preparing competing bids for the National Lottery. One (Branson) alleged that the other had offerered a bribe. The other responded that the allegation was a lie, and each sued the other for defamation.
Held: The . .
Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.185966

Mercer v Chief Constable of Lancashire: CA 1991

When justifying a detention, the Chief Constable must prove it ‘was lawful minute by minute and hour by hour’.

Judges:

Lord Donaldson MR

Citations:

[1991] 1 WLR 367

Jurisdiction:

England and Wales

Cited by:

Cited – Branson v Snowden; Branson v Gtech UK Corporation (a Body Corporate) and Rendine CA 3-Jul-1997
The respective parties had been preparing competing bids for the National Lottery. One (Branson) alleged that the other had offerered a bribe. The other responded that the allegation was a lie, and each sued the other for defamation.
Held: The . .
Cited – Taylor (A Child Proceeding By his Mother and Litigation Friend C M Taylor) v Chief Constable of Thames Valley Police CA 6-Jul-2004
The Chief Constable appealed aganst a finding that his officers had wrongfully arrested and imprisoned the claimant. The claimant was 10 years old when arrested, and complained that the officers had not properly advised him of the nature and purpose . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Police

Updated: 29 April 2022; Ref: scu.185965

Re Collyer-Bristow and Co: 1901

The issue was whether a bill of the solicitors employed to advise the Umpire was taxable and, if so, in which Division of the High Court

Citations:

[1901] 2 KB 839

Jurisdiction:

England and Wales

Cited by:

Cited – Agrimex Ltd v Tradigrain Sa and others ComC 9-Jul-2003
Challenge was brought against the fees charged by the arbitrator, and in particular at the cost of the arbitrator bringing in a legally qualified draftsman.
Held: A draftsman’s task would not be himself to refine the arbitrator’s reasoning, . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 29 April 2022; Ref: scu.185870

Staines v Walsh: ChD 10 Jun 2003

The claimant had obtained an asset freezing order and given undertakings as to his responsibility for the costs. He had provided information about his financial status to support the injunction. The defendant paid the sum at issue into court to discharge the freezing order, when it was discovered that the claimant’s financial standing had changed.
Held: Had there been an application before the court to discharge the order, it would have been granted. A claimant requesting such on order had a continuing obligation to be open with the court and to inform the court of an substantial changes in his assets.

Judges:

Laddies

Citations:

Times 01-Aug-2003, Gazette 31-Jul-2003

Jurisdiction:

England and Wales

Litigation Practice

Updated: 29 April 2022; Ref: scu.185822

O’Kelly v Trusthouse Forte plc: CA 1984

Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one side or the other of some conceptual line drawn by the law is a question of fact – whether an employee was continuously employed. Whether he was employed under a contract of employment was a mixed question of fact and law.

Citations:

[1984] QB 90, [1983] 3 All ER 456, [1983] IRLR 369

Statutes:

Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Cited by:

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 – 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 – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 29 April 2022; Ref: scu.185432

In re McC (A Minor); McC v Mullan: HL 1984

The House considered the immunity from suit of judges. The Magistrate here had passed a custodial sentence on a minor without complying with a statutory provision which required him to inform the offender of the right to Legal Aid.
Held: The House reaffirmed the common law rule that judges of the higher courts were immune from suit even if it could be shown that they had been actuated by malice.
Lord Bridge said: ‘The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.’ and ‘It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass.’
The word ‘jurisdiction’ is not always used in its strict sense
Lord Templeman discussed the judicial immunity of Magistrates: ‘If in the course of a trial which a magistrate is empowered to undertake, the magistrate misbehaves or does not accord the accused a fair trial, or is guilty or some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed by the Magistrate Acts within jurisdiction.’
Lord Lowry said that the Courts should be slow to change or develop the law in disputed areas of social policy, particularly when Parliament has considered the position and made some changes, or has rejected the opportunity to make changes.

Judges:

Lord Bridge of Harwich, Lord Lowry, Lor Templeman

Citations:

[1985] AC 528, [1984] 3 WLR 1227, [1984] 3 All ER 908

Jurisdiction:

England and Wales

Citing:

Cited – Anderson v Gorrie CA 1895
An action had been brought against a colonial judge, alleging malice.
Held: Lord Esher MR said: ‘the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it . .

Cited by:

Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Webster v Ministry of Justice QBD 23-Oct-2014
The claimant had been convicted at trial, and release after a successful appeal but after considerable time in jail. He now comlained of the judge’s conduct at trial saying that misdirections amounted to bad faith.
Held: The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Magistrates

Updated: 29 April 2022; Ref: scu.184733

Henderson v Broomhead: 1859

Immunity attaches to what persons who may be called to give evidence say or do before the court. It is an immunity ‘for words spoken or written in the course of any judicial proceeding’.

Judges:

Crompton J

Citations:

(1859) 4 H and N 569

Cited by:

Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.184735

Cutler v Dixon: KBD 1585

‘It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursued the ordinary course of justice in such case: and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain for fear of infinite vexation.’ and ‘if actions should be permitted in such cases, those who have just cause for complaint, would not dare to complain for fear of infinite vexation.’

Citations:

(1585) 4 Co Rep 14b, [1585] 76 ER 886, [1585] EngR 96

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Autofocus Ltd v Accident Exchange Ltd CA 14-Jul-2010
The court considered the scope of witness immunity. . .
Cited – Singh v Reading Borough Council EAT 12-Feb-2013
EAT UNFAIR DISMISSAL – Constructive unfair and discriminatory dismissal
RACE DISCRIMINATION
PRACTICE AND PROCEDURE – Judicial proceedings immunity
The Claimant headteacher is alleging in . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 29 April 2022; Ref: scu.184736

Rands v Oldroyd: 1959

The ejusdem generis rule is, at best, a very secondary guide to the meaning of a statute. The all-important matter is to consider the purpose of the statute. A statute preventing a civil servant contracting for his employers with a company in which he had an interest, should be interpreted strictly.

Citations:

[1959] 1 QB 209

Cited by:

Cited – Regina v Westminster City Council ex parte A, London Borough of Lambeth ex parte X and similar CA 17-Feb-1997
This was an appeal from orders of certiorari quashing the decisions of three local authorities refusing to provide accommodation for the respondents, four asylum seekers, whose applications for asylum were presently being considered by the Secretary . .
Cited – Wheatley and Another v The Commissioner of Police of the British Virgin Islands PC 4-May-2006
(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Administrative

Updated: 29 April 2022; Ref: scu.184381

George Hudson Ltd v Australian Timber Workers’ Union: 1923

When considering the intentions behind an Act of Parliament to enquire as to its retrospective effect, the court must look to all the circumstances, ‘that is to say, the whole of the circumstances which the legislature may be assumed to have had before it. What may seem unjust when regarded from the standpoint of one person affected may be absolutely just when a broad view is taken of all who are affected. There is no remedial Act which does not affect some vested right, but, when contemplated in its total effect, justice may be overwhelmingly on the other side.’

Judges:

Isaacs J

Citations:

(1923) 32 CLR 413

Cited by:

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

Litigation Practice

Updated: 29 April 2022; Ref: scu.184444

Munnich v Godstone Rural District Council: 1966

When considering requests for a declaration, questions of pure law may more readily be made, than those dependent upon the particular facts of the case.

Citations:

[1966] 1 WLR 427

Cited by:

Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.184032

Tareeny Churn Bonnerjee v Maitland: 1867

When hearing a cae, the Board may itself reconsider the whole case including the evidence.

Judges:

Lord Cairns

Citations:

(1867) 11 Moore Ind App 317

Cited by:

Cited – Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others PC 30-Jul-1946
(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.184209

SCF Finance Co Ltd v Masri (No 3): 1987

The court accepted that in a case where the garnishee was not indebted within the jurisdiction that might be relevant to the exercise of the court’s discretion. Since, in this case, the debt in question was an English debt, the court’s jurisdiction in relation to foreign debts did not fall for decision. The legislation has from the beginning stipulated that the third party or garnishee should be within the jurisdiction but not that the debt to be attached should be within the jurisdiction.

Judges:

Slade and Ralph Gibson LJJ and Sir John Megaw

Citations:

[1987] QB 1028

Citing:

Distinguished – Richardson v Richardson KBD 1927
A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter.
Held: The bank is no doubt indebted to the . .

Cited by:

Approved – Interpool Ltd v Galani CA 1988
The debtor appealed against an order to answer questions and disclose documents relating to any debts owed to him or other property or means belonging to him outside the jurisdiction. The court looked at the examination of a judgment debtor under . .
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 29 April 2022; Ref: scu.183543

Wardle Fabrics Ltd v G Myristis Ltd: 1984

A person against whom an order is made must obey it until it is discharged.

Citations:

(1984) FSR 263

Cited by:

Cited – Motorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.183516

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 an effectual answer to the claim, not only in the courts of that country, but in every other country. This is a principle of private international law adopted in other countries. Secondly, as a general proposition, it is also true that 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.

Judges:

Bovill CJ

Citations:

(1871) LR 6 CP 228

Jurisdiction:

England and Wales

Citing:

Cited – 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. . .
Cited – Burrows v Jemino 1726
A debt or liability arising in any country may be discharged by the laws of that country, and that 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 . .
Cited – Ballantine v Golding 1784
. .
Cited – Odwin v Forbes PC 1817
. .
Cited – Quelin v Moisson 1828
. .
Cited – Gardiner v Houghton QBD 1862
. .
Cited – Potter v Brown 1804
. .
Cited – Phillips v Eyre CEC 1870
The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been . .
Cited – 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. . .
Cited – Lewis v Owen 1821
. .
Cited – Phillips v Allan 1828
. .
Cited – Bartley v Hodges 1861
. .

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 . .
Approved – Martin v Nadel CA 17-May-1906
A garnishee order was sought in England against the London branch of a German bank to attach a balance owed to the judgment debtor by the Berlin branch of the bank.
Held: A garnishee order is of the nature of an execution, and is governed by . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.183527

Straker v Graham: 1839

The court refused to receive an affidavit from an attorney, made to him by a juryman, that the verdict was decided by lot.

Citations:

(1839) 4 M and W 721

Cited by:

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

Litigation Practice

Updated: 29 April 2022; Ref: scu.183495

Post v Toledo, Cincinnati and St Louis Railroad Co: 1887

Powers of discovery where third party is involved in some way in the matters underlying the issue.

Citations:

(1887) 11 NERep 540

Cited by:

Applied – 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: 29 April 2022; Ref: scu.183465

Acrow (Automation) Ltd v Rex Chainbelt Inc: 1971

A person not party to proceedings, but who knows of an order made in them, and assists in its breach or nullifies the purpose of a trial may be liable for contempt.

Citations:

[1971] 3 All ER 1175

Cited by:

Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
Cited – Bloomsbury Publishing Plc and Another v Newsgroup Newspapers Ltd ChD 7-May-2003
The claimant sought an order to restrict the defendant and other unknown defendants from publishing confidential details of the book it was about to publish from the Harry Potter series.
Held: Whilst: ‘I think it would be preferable for the . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Litigation Practice

Updated: 29 April 2022; Ref: scu.183379

Levy v Levy: 9 Nov 1979

The court was prepared to use the nomination ‘John Doe’ to identify an individual whose name was not known to the court.

Citations:

Unreported 9th November 1979

Cited by:

Cited – Barnett v French CA 1981
The court considered how defendants should be named in court proceedings where their identity was unknown. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.183364

In Re Wykeham Terrace: ChD 1971

Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was effected by putting it through the letter box.
Held: The application was refused. A person claiming an order of this court against another, except where a statute provides otherwise, cannot obtain that relief except in proceedings to which that other person is a party and after that other person has had the opportunity of appearing before this court and putting forward his answer to the claim. An order made ex parte will bind only those who are parties to or attending the proceedings. This principle is blurred where the action is an action for the recovery of land by reason of the process by which the judgment is executed. The sheriff acting pursuant to a writ of possession will be bound to turn out those he finds upon the land whether they are bound by the judgment or not.
Stamp J: ‘No doubt a different and perhaps a better process . . could be provided to meet particular cases and more particularly a case where unknown persons are in occupation of land claimed by the Plaintiff’.

Judges:

Stamp J

Citations:

[1971] 1 Ch 204

Jurisdiction:

England and Wales

Cited by:

Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
Doubted – McPhail v Persons, Names Unknown CA 1973
The court was asked to make an order against persons unknown in order to recover land. Although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court . .
Cited – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.183361

Tony Blain Pty Ltd v Splain: 1994

(High Court of New Zealand) Complaint was made the possible sales of products infringing the plaintiffs’ ‘Metallica’ property rights. The court was asked to make an order against unknown defendants.
Held: Anderson J discussed the correct approach: ‘Conceptually the relief sought in this proceeding and the relief in terms of Anton Piller orders are similar. Each involves an intrusion on privacy but is an intrusion which has been justified on the basis of the court’s equitable jurisdiction can properly be extended to meet the realities of modern commercial situations. It is an ancient maxim of the law that wherer there is a right there is a remedy: Ubi jus ibi remedium. In circumstances were it is plain that persons are infringing proprietary interests which the law recognises, or deceiving the public by way of trade in a manner which may indirectly affect the commercial interests of others, the law should, if it reasonably can, provide a remedy.’
The second defendant was sued as ‘all persons who sell unlicensed . . merchandise at or about the . . stadium on 26th March 1993 who are served with this statement of claim. In circumstances where it is plain that persons are infringing proprietary interests which the law recognises, or deceiving the public by way of trade in a manner which may indirectly affect the commercial interests of others, the law should, if it reasonably can, provide a remedy. It was proposed that solicitors, officers of the court, should be authorised to accost bootleggers and require them to provide their current addresses, evidence of identity, and to surrender up to the named solicitors all merchandise including T-shirts, head-bands, badges or programmes in their possession or control. Persons required to respond to these oral interrogatories, which conceptually is what they are, will be such persons as are served with the orders for injunction also sought in this proceedings. The second and third defendants are identified as persons who sell unlicensed merchandise at the relevant concert venues. It is expedient to refer to them in this judgment as ‘John Doe’ and ‘Jane Doe’. The fact that persons cannot be identified at this stage of the proceeding is no bar to relief against persons who may be identified at a relevant time. It is not the name but the identity and identification of infringing persons which is relevant. The identify may not be immediately established but persons infringing will be identified by their act of infringement. Jane Doe and John Doe will be known by their works.’

Judges:

Anderson J

Citations:

[1994] FSR 497

Cited by:

Cited – Bloomsbury Publishing Plc and Another v Newsgroup Newspapers Ltd ChD 7-May-2003
The claimant sought an order to restrict the defendant and other unknown defendants from publishing confidential details of the book it was about to publish from the Harry Potter series.
Held: Whilst: ‘I think it would be preferable for the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property, Commonwealth

Updated: 29 April 2022; Ref: scu.183366